/raid1/www/Hosts/bankrupt/CAR_Public/220421.mbx
C L A S S A C T I O N R E P O R T E R
Thursday, April 21, 2022, Vol. 24, No. 74
Headlines
360 DEGREE: Faces Wade Suit Over Unlawful Labor Practices
ACER THERAPEUTICS: Judgment Entered in Favor of Skiadas and Class
ACV AUCTIONS: Bid for Sanctions Against Jerry Gradl Counsel Denied
AHS MANAGEMENT: McCool, et al File Bid for Class Certification
AMERICAN FIRST: Class Certification Briefing Dates Extended
AMERICAN FIRST: Extension of Class Cert Briefing Deadlines Sought
AMERICAN TUNA: Craig Suit Moved to Southern District of California
ARGUS CONTRACTING: Scheduling Order Entered in Geiz Class Suit
BANCO NACIONAL: Bid to Revisit Dismissal of Antitrust Suit Denied
BIRCH BENDERS: Pino Files Mislabeling Case Over Pancake Mixes
BLUETRITON BRANDS: Spano Sues Over Non-COBRA Compliant Notice
BOB DEAN: Verdin, et al., Seek FLSA Conditional Class Certification
BULLSEYE ENERGY: Scheduling Order Entered in Jeter Class Suit
CASTLEROCK FARMING: Court Narrows Claims in Moreno Suit
CLOROX COMPANY: Lip Products Contain Toxic Substances, Barrett Says
DETROIT EDISON: Nolan Suit Seeks to Certify Settlement Class
DREXEL UNIVERSITY: Bid to Dismiss Rickenbaker Suit Granted in Part
EASSIST INC: Lewis Seeks Conditional FLSA Class Certification
EAST HANOVER, NJ: 3d Cir. Affirms Dismissal of Marinaccio v. Police
ENCINITAS, CA: Mickelson Sues Over Paramedics' Unpaid OT Wages
FANNIE MAY: Faces McElroy Suit Over Unpaid Overtime Wages
FEDERAL SAVINGS: Court Denies Anthony's Bid to Dismiss Counterclaim
FIAT CHRYSLER: Federal Judge Approves Jeep Grand Class Suit
GENWORTH LIFE: Brighton's Class Certification Bid Tossed as Moot
INTERACTIVE BROKERS: Batchelar Seeks Leave to File Complaint
JUSTICEWORKS YOUTHCARE: Shopp Seeks to Certify Collective Action
L'OREAL USA: Waterproof Mascara Products Contain PFAS, Vega Says
LAKEVIEW LOAN: Texas Court Certifies Two Classes in Williams Suit
LOUIS VUITTON: Theriot Sues Over Illegal Biometrics Data Collection
MAJERLE MGMT: Allen's Bid to Reconsider Dismissal Order Granted
MANAGEMENT & TRAINING: Medford Seeks Unpaid OT Wages
MERCY HEALTH: Peck Seeks Conditional Collective Certification
MOBILE AUTO: Restrepo Sues Over Unpaid Wages
MY WIRELESS: Faces Tadle Suit Over Illegal Employment Practices
NATIONSTAR MORTGAGE: McAdams Can't Compel Responses to RFP No. 17
NETGAIN TECHNOLOGY: S.D. California Tosses Lee Suit With Prejudice
NEW YORK: Alleyne Sues Over Vaccination Mandate
NY TEX CARE: Non-Exempt Employees Win Class Status in Francisco
OREGON: District Court Certifies Two Classes in Maney v. ODOC
OS RESTAURANT: Faces Strother Suit Over Managers' Unpaid Wages
PREMIER NUTRITION: Court Names Montera as Class Rep in Fishon Suit
RAM PAYMENT: Antico Bid to Certify Class Denied
RED HOOK: Ellington, et al., File Bid for Conditional Certification
REVOLUTION TRUCKING: Misclassifies Cargo Van Drivers, Woolf Says
SAMSUNG ELECTRONICS: Stewart Sues Over Smartphone Throttling Scheme
SEDGWICK CLAIMS: S. Siler Can't Intervene in Adams-Gillard Suit
SIMPLY AMAZING: Iskhakova Sues Over Blind-Inaccessible Website
SOUTHERN THERAPY: Bailey Conditional Certification Bid Nixed
SOUTHWEST AIRLINES: Court Grants Bid to Dismiss Weaver Class Suit
STAKE CENTER: Walker Seeks to Certify Class of Utility Locators
STATE FARM: Court Narrows Claims in Bauer Suit
SUBURBAN PROPANE: Whitney Files Suit Over Billing Errors
TAKEDA PHARMACEUTICAL: Compelled to Show Emails in Antitrust Suit
TRANSCORE LP: Plaintiff Brewer's Bid to Remand Thomas Suit Denied
UNITED STATES: Navy Seals' Bid for Class Status Granted in Part
VMSB LLC: Bid to certify Class Denied as Moot in Rossell Suit
WAL-MART ASSOCIATES: Rodriguez Seeks to Certify Class of Employees
WELLS FARGO: Court Grants Bid to Dismiss McCraner Class Suit
WYNNDALCO ENTERPRISES: Wins Cross-Bid for Judgment in Citizens Suit
XTO ENERGY: Must File Response to Class Cert. Bid by April 27
[^] CLASS ACTION Money & Ethics Conference on May 2 - Register Now
*********
360 DEGREE: Faces Wade Suit Over Unlawful Labor Practices
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JESSICA WADE, an individual, individually, and on behalf of herself
and others similarly situated aggrieved employees, Plaintiff v. 360
DEGREE CUSTOMER, INC., a California corporation; GULNEESH MuKHIJA,
an individual; and DOES 1 through 50, inclusive, Defendants, Case
No. 22STCV11857 (Cal. Super., Los Angeles Cty., April 7, 2022) is a
class action against the Defendants for alleged violations of the
California Labor Code, seeking damages, restitution and penalties
for their unlawful employment practices.
The Plaintiff alleges that the Defendants' failed to pay overtime
wages, failed to provide required meal periods, failed to provide
required rest periods, failed to timely pay wages during
employment, failed to pay all wages due to discharged and quitting
employees, failed to furnish accurate, itemized wage statements,
failed to maintain required records, and failed to permit
inspection of personnel records.
The Plaintiff worked as a licensed registered nurse for the
Defendants from August 16, 2021.
360 Degree Customer, Inc. is a staffing and recruiting
company.[BN]
The Plaintiff is represented by:
Michael Elkin, Esq.
Jessica R. Gamboa, Esq.
Benjamin McLain, Esq.
ELKIN | GAMBOA, LLP
4119 W. Burbank Blvd., Ste. 110
Burbank, CA 91505
Telephone: (323) 372-1202
Facsimile: (323) 372-1216
E-mail: michael@elkingamboa.com
jessica@elkingamboa.com
ben@elkingamboa.com
ACER THERAPEUTICS: Judgment Entered in Favor of Skiadas and Class
-----------------------------------------------------------------
Judge Gregory H. Woods of the U.S. District Court for the Southern
District of New York entered judgment in the case, NICHOLAS
SKIADAS, Individually and on Behalf of All Others Similarly
Situated, Plaintiffs v. ACER THERAPEUTICS INC., CHRIS SCHELLING,
and HARRY PALMIN, Defendants, Case No. 1:19-cv-6137-GHW (S.D.N.Y.),
in favor of the Plaintiffs.
On Jan. 7, 2022, the Court entered judgment granting final approval
to the class action settlement against all the Defendants in the
case. The Clerk of Court is directed to enter judgment in favor of
the Plaintiffs, terminate all pending motions, adjourn all
remaining deadlines, and to close the case.
A full-text copy of the Court's March 30, 2022 Order is available
at https://tinyurl.com/3erdsksk from Leagle.com.
ACV AUCTIONS: Bid for Sanctions Against Jerry Gradl Counsel Denied
------------------------------------------------------------------
In the case, JERRY GRADL MOTORS, INC. and LIFETIME MOTOR CARS,
INC., individually and on behalf of all others similarly situated,
Plaintiffs v. ACV AUCTIONS, INC., SUN CHEVROLET, INC., WHOLESALE
CARS ONLINE.COM, L.L.C. d/b/a SUN AUTO WAREHOUSE, WHOLESALE CARS
ONLINE.COM, L.L.C. d/b/a SUN AUTO WAREHOUSE OF CORTLAND, and BRIAN
M. MALCHAK, Defendants, Case No. 1:21-cv-00409 (W.D.N.Y.), Judge
Christine Reiss of the U.S. District Court for the Western District
of New York denied both Defendant ACV's motion for sanctions
against the Plaintiffs' counsel and the Plaintiffs' request for an
award of attorney's fees.
I. Background
Plaintiffs Jerry Gradl Motors, Inc. and Lifetime Motor Cars, Inc.
bring the action, individually and on behalf of all others
similarly situated, against Defendants ACV; Sun Chevrolet, Inc.,
Wholesale Cars Online.com, L.L.C. d/b/a Sun Auto Warehouse,
Wholesale Cars Online.com, L.L.C. d/b/a Sun Auto Warehouse of
Cortland (together, "Sun Auto"); and Brian M. Malchak. The
Plaintiffs contend that Defendants used the ACV online car auction
platform to engage in "shill bidding," a practice by which prices
for automobiles were artificially inflated to the detriment of
consumers.
The Plaintiffs are represented by Steven M. Cohen, Esq. and Edward
P. Yankelunas, Esq. Defendant ACV is represented by John A. Jurata,
Jr., Esq., Jonathan Direnfeld, Esq., Michael L. McCabe, Esq., and
Myriah Valentina Jaworski, Esq. Defendant Sun Auto is represented
by Myriah Valentina Jaworski, Esq. and Timothy W. Hoover, Esq.
Defendant Brian M. Malchak is represented by Jon P. Devendorf, Esq.
and Myriah Valentina Jaworski, Esq.
On Sept. 10, 2021, Defendant ACV filed the pending motion for
sanctions against the Plaintiffs' counsel, alleging improper
in-person solicitation of prospective class members in violation of
New York Rule of Professional Conduct 7.3. Specifically, ACV
asserts that on July 22, 2021, Nathan McMurray, a former attorney
at HoganWillig, PLLC, the law firm representing the Plaintiffs,
contacted the Certified Auto Brokers ("CAB") dealership in Grand
Island, New York in person "under false pretenses, and, once in the
door, tried to coerce that business to join this lawsuit."
Defendant ACV contends the Court is authorized to sanction
unethical conduct pursuant to its supervisory authority regarding
attorney professional responsibility and that it may restrict
pre-certification communications with class members. It requests an
order restricting the Plaintiffs' counsel from contacting
prospective class members; requiring the Plaintiffs' counsel to
"disclose whether they have engaged in any other in-person or other
solicitations of prospective plaintiffs, and, if so, provide the
specifics of those solicitations;" and requiring the Plaintiffs to
pay attorney's fees incurred in relation to the investigation of
and briefing the issue.
On Sept. 29, 2021, the Plaintiffs opposed ACV's motion for
sanctions and requested an award of attorney's fees for the costs
incurred in responding to ACV's motion. On Oct. 6, 2021, ACV filed
a reply. A hearing was held on Oct. 14, 2021, during which the
Court determined that an evidentiary hearing was required. The
evidentiary hearing was held on Jan. 3, 2022. On Jan. 18, 2022,
after the court's submission deadline for supplemental briefing
expired, the Court took the pending motion under advisement.
II. Discussion
A. Whether Sanctions are Appropriate Based on an Ethical Violation
Judge Reiss opines that Attorney McMurray had several motives when
he initiated in-person contact with a potential client, including
encouraging CAB's participation in a putative class action lawsuit.
Attorney McMurray did not provide Mr. Taylor or Mr. Renzoni with a
copy of his business card and did not discuss a retainer agreement
or attorney's fees while at CAB. Instead, he gathered information.
Judge Reiss finds that obtaining information useful to the lawsuit
was Mr. McMurray's primary purpose. Although a close question, she
does not find that Attorney McMurray violated applicable ethical
standards because his primary purpose was not Mr. Taylor's
retention of HoganWillig as his counsel for purposes of pecuniary
gain. She finds the evidence that Attorney McMurray engaged in
other in-person direct solicitations also insufficient.
B. Whether the Court Should Ban Future Communications with
Potential Class Members
As a prophylactic measure, ACV requests a restriction on the
Plaintiffs' ability to communicate with potential class members
before any class has been certified.
Judge Reiss opines that ACV has not established an ethical
violation, a clear record of abuse, or the potential for specific
problems. Attorney McMurray sought relevant information regarding
the Defendants in the lawsuit and mentioned the potential benefits
for those who joined the lawsuit. He did not directly ask Mr.
Taylor or CAB to join the lawsuit or offer to represent them. While
Attorney McMurray may have hoped for further communications with
Mr. Taylor, when they did not transpire, he ceased contacting him.
The Plaintiffs have a right to seek information from putative class
members," including evidence in support of their claims. The "mere
possibility of abuses" does not justify sanctions in the form of a
communications ban that could "interfere with the formation of a
class or the prosecution of a class action."
Where appropriate, courts may consider "less burdensome remedies"
such as "an order requiring parties to file copies of nonprivileged
communications to class members with the court." Even this
restriction is not justified by the record before the court.
Attorney McMurray is no longer employed by HoganWillig or involved
in the lawsuit. A single instance of in-person communication
supported by a mixed motive does not warrant court intervention.
C. Whether to Award Attorney's Fees and Costs.
The Plaintiffs request an "award of attorney's fees and the costs
incurred to their counsel in responding to ACV's motion." Defendant
ACV also requests "attorney's fees incurred in uncovering Attorney
McMurray's unethical conduct."
Because there is no clear record of unethical conduct before the
Court, and, conversely, because the motion for sanctions was not
frivolous and presented a close question, Judge Reiss concludes
that an award of attorney's fees, for either party, is not
warranted.
III. Conclusion
For the foregoing reasons, Judge Reiss denied Defendant ACV's
motion for sanctions against the Plaintiffs' counsel. She also
denied the Plaintiffs' request for an award of attorney's fees.
A full-text copy of the Court's March 30, 2022 Opinion & Order is
available at https://tinyurl.com/na26t6vr from Leagle.com.
AHS MANAGEMENT: McCool, et al File Bid for Class Certification
--------------------------------------------------------------
In the class action lawsuit captioned as MARK MCCOOL, SHAWN
MACDONALD, and WARREN HARLAN, individually and on behalf of all
others similarly situated, v. AHS MANAGEMENT COMPANY, INC., BOARD
OF DIRECTORS OF AHS MANAGEMENT COMPANY, INC., and ARDENT HEALTH
SERVICES BENEFITS PLAN ADMINISTRATION, Case No. 3:19-cv-1158 (M.D.
Tenn.), the Plaintiff asks the Court to enter an order certifying
the following proposed Class:
"All persons, except Defendants and their immediate family
members, who were participants in or beneficiaries of the
Plan, at any time between December 24, 2013 through the date
of judgment."
AHS Management operates as an investment company.
A copy of the Plaintiffs' motion to certify class dated March 28,
2022 is available from PacerMonitor.com at https://bit.ly/3jJWJnK
at no extra charge.[CC]
The Plaintiffs are represented by:
Mark K, Gyandoh, Esq.
Donald R. Reavey, Esq.
CAPOZZI ADLER, P.C.
312 Old Lancaster Road
Merion Station, PA 19066
Telephone: (610) 890-0200
Facsimile: (717) 233-4103
E-mail: markg@capozziadler.com
donr@capozziadler.com
The Defendants are represented by:
Joseph F. Welborn, III
BUTLER SNOW LLP
The Pinnacle at Symphony Place, Suite 1600
150 3rd Avenue South
Nashville, TN 37201
E-mail: Joe.wellborn@butlersnow.com
- and -
Eric S. Mattson, Esq.
Mark B. Blocker, Esq.
Benjamin I. Friedman, Esq.
Caroline A. Wong, Esq.
SIDLEY AUSTIN LLP
One South Dearborn St.
Chicago, IL 60603
E-mail: mblocker@sidley.com
emattson@sidley.com
benjamin.friedman@sidley.com
caroline.wong@sidley.com
AMERICAN FIRST: Class Certification Briefing Dates Extended
-----------------------------------------------------------
In the class action lawsuit captioned as MARIA ANDRADE, et al., v.
AMERICAN FIRST FINANCE, INC., et al., the Hon Judge Sallie Kim
entered an order granting the Parties stipulation to extend class
certification briefing deadlines to allow for mediation, as
follows:
Previous New
Deadline Deadline
-- Last day to file motion April 30, 2022 May 30, 2022
for class certification:
-- Last date to file April 29, 2022 June 30, 2022
opposition to motion for
class certification:
-- Last day to file reply May 19, 2022 July 21, 2022
in support of motion for
class certification:
-- Hearing on Motion for June 13, 2022 Aug. 14, 2022
Class Certification:
-- Last day to file motion Aug. 12, 2022 Oct. 14, 2022
for summary judgment:
-- Last day to file Sept. 9, 2022 Nov. 11, 2022
opposition to motion for
summary judgment and
cross-motion:
-- Last day to file reply Oct. 7, 2022 Dec. 8, 2022
to motion for summary
judgment and opposition
to cross-motion:
-- Last day to file reply Oct. 21, 2022 Dec. 22, 2022
in support of cross-
motionfor summary
judgment:
American First is a leading consumer financial technology company
that provides alternatives to traditional retail lending service.
A copy of the Court's order dated dated March 25, 2022 is available
from PacerMonitor.com at https://bit.ly/3jAQdzF at no extra
charge.[CC]
The Plaintiff is represented by:
Alicia Hinton, Esq.
LAW OFFICE OF A.L. HINTON
1616 West Shaw Avenue, Suite B7
Fresno, CA 93711
Telephone: (559) 691-6900
E-mail: alicia@alhintonlaw.com
- and -
Robert S. Green, Esq.
James Robert Noblin, Esq.
Evan M. Sumer, Esq.
GREEN & NOBLIN, P.C.
2200 Larkspur Landing Circle, Suite 101
Larkspur, CA 94939
Telephone: (415) 477-6700
Facsimile: (415) 477-6710
E-mail: gnecf@classcounsel.com
AMERICAN FIRST: Extension of Class Cert Briefing Deadlines Sought
-----------------------------------------------------------------
In the class action lawsuit captioned as MARIA ANDRADE, et al., v.
AMERICAN FIRST FINANCE, INC., et al., Case No. 3:18-cv-06743-SK
(N.D. Cal.) the Parties stipulate and ask the Court to enter an
order to extend class certification briefing deadlines to allow
for
mediation.
Previous New
Deadline Deadline
-- Last day to file motion April 30, 2022 May 30, 2022
for class certification:
-- Last date to file April 29, 2022 June 30, 2022
opposition to motion for
class certification:
-- Last day to file reply May 19, 2022 July 21, 2022
in support of motion for
class certification:
-- Hearing on Motion for June 13, 2022 Aug. 14, 2022
Class Certification:
-- Last day to file motion Aug. 12, 2022 Oct. 14, 2022
for summary judgment:
-- Last day to file Sept. 9, 2022 Nov. 11, 2022
opposition to motion for
summary judgment and
cross-motion:
-- Last day to file reply Oct. 7, 2022 Dec. 8, 2022
to motion for summary
judgment and opposition
to cross-motion:
-- Last day to file reply Oct. 21, 2022 Dec. 22, 2022
in support of cross-
motionfor summary
judgment:
American First is a leading consumer financial technology company
that provides alternatives to traditional retail lending service.
A copy of the Court's order dated March 25, 2022 is available from
PacerMonitor.com at https://bit.ly/3EhbXtR at no extra charge.[CC]
The Plaintiff is represented by:
Alicia Hinton, Esq.
LAW OFFICE OF A.L. HINTON
1616 West Shaw Avenue, Suite B7
Fresno, CA 93711
Telephone: (559) 691-6900
E-mail: alicia@alhintonlaw.com
- and -
Robert S. Green, Esq.
James Robert Noblin, Esq.
Evan M. Sumer, Esq.
GREEN & NOBLIN, P.C.
2200 Larkspur Landing Circle, Suite 101
Larkspur, CA 94939
Telephone: (415) 477-6700
Facsimile: (415) 477-6710
E-mail: gnecf@classcounsel.com
AMERICAN TUNA: Craig Suit Moved to Southern District of California
------------------------------------------------------------------
In the case, JEFFREY CRAIG, Plaintiff v. AMERICAN TUNA, INC. et
al., Defendants, Case No. 21-CV-9125 (AJN)(KHP)(S.D.N.Y.),
Magistrate Judge Katharine H. Parker granted American Tuna's motion
to transfer the action to the U.S. District Court for the Southern
District of California.
I. Background
Defendant American Tuna has moved to transfer the action to the
Southern District of California pursuant to 28 U.S.C. Section
1404(a) and FRCP 12(b)(3) and to dismiss certain claims under FRCP
12(b)(6).
Plaintiff Craig, a resident of New Jersey, purchased American
Tuna's canned tuna fish from Whole Foods locations in New York
State including in Manhattan and Westchester County. He alleges
that he and other consumers were misled to pay a premium for what
they believed to be "top-quality, locally-sourced tuna caught in
American waters and processed in American factories." But,
according to the Plaintiff, the tuna is not in fact caught in
America and much of the tuna is canned in Thailand, Costa Rica,
Vietnam and other countries. He further alleges that the
Defendants' misleading tactics are present on its website and
social media platforms, as well as on the labels of the cans of
tuna sold at Whole Foods. Thus, the Plaintiff accuses American Tuna
of false labeling and marketing of its products.
American Tuna resides in San Diego, California, where it's offices
and the majority of its employees are located. It has no offices or
personnel in New York. American Tuna's records, both hard copy and
digital, are located in San Diego. Its vendors that would assist
with production of records in this litigation are mostly located in
California. American Tuna has identified a number of employee and
officer witnesses who would testify in its defense who are located
in either San Diego or the United Kingdom. The decisions regarding
the labeling and marketing of American Tuna products and the
content of its website were made out of American Tuna's San Diego
headquarters.
Defendant WWF, the majority share owner of American Tuna, is a
United Kingdom corporation. It does not have offices or employees
in New York. It consents to jurisdiction in the Southern District
of California where it's executives frequently travel for business.
It objects to jurisdiction in New York.
The tuna sold under the American Tuna brand is caught in the
Pacific Ocean by approximately 70 U.S. Flagged vessels based out of
California (including San Diego), Oregon and Washington. It is
canned on the West Coast in the states of Washington and Oregon.
American Tuna does not maintain records of where specifically in
the Pacific Ocean the tuna is caught. Rather, the fishermen who
catch the tuna each maintain records as to the locations where the
tuna was caught, the size and nature of the fishery where they fish
in the Pacific Ocean, the pole and line method of catching the
fish, and the chain of custody of tuna landed on their vessels to
the canneries.
American Tuna states that it expects to call fishermen and a
representative from the American Albacore Fishing Association as
witnesses regarding where the fish is caught and rules concerning
the recordkeeping regarding the same. These witnesses are located
in San Diego or on the West Coast. American Tuna also states it
would call witnesses from its packers who are located on the West
Coast. These witnesses would have information about the origin,
tracing procedures, canning and auditing of tuna canned at their
facilities.
Whole Foods is American Tuna's primary retail outlet. New York
State has the third most Whole Foods locations in the nation (26
stores). Ten percent of American Tuna's sales come from New York.
However, California has the highest number of Whole Food stores (92
stores). Whole Foods is headquartered in Austin, Texas. American
Tuna expects to call witnesses from Whole Foods who can testify
about pricing of American Tuna products as compared to its
competitors.
The Plaintiff seeks to represent a nationwide class of "all persons
residing in the United States and its territories who purchased
American Tuna Products during the applicable limitations period
primarily for personal, family, or household purposes, and not for
resale."
The nationwide claims are premised on various tort claims including
breach of express warranty, negligent misrepresentation, and unjust
enrichment and would implicate the relevant laws of each state of
purported class members. The Plaintiff also seeks to represent a
New York subclass of all consumers who purchased American Tuna
products in New York. The state claims include the torts mentioned
above as well as alleged violations of New York General Business
Law Sections 349 & 350 for deceptive trade practices.
II. Discussion
Judge Parker explains that a motion to transfer under 28 U.S.C.
Section 1404(a) involves a two-step inquiry, citing Enigma Software
Grp. USA, LLC v. Malwarebytes Inc., 260 F.Supp.3d 401, 407
(S.D.N.Y. 2017). First, the court must determine whether the action
could have been brought in the transferee district. Then, it must
consider factors including, (1) the plaintiff's choice of forum,
(2) the convenience of witnesses, (3) the location of relevant
documents and relative ease of access to sources of proof, (4) the
convenience of the parties, (5) the locus of operative facts, (6)
the availability of process to compel the attendance of unwilling
witnesses, and (7) the relative means of the party.
In sum, when considering all of the factors, including those courts
hold most important in the transfer decision, Judge Parker
concludes that American Tuna has met its burden in showing that
transfer is warranted. Not only does San Diego have far greater
connections to the key facts and witnesses than New York, but
transfer of the case to San Diego will reduce travel costs for some
witnesses and be more convenient for more of them than if the case
remained in New York.
III. Order
For the reasons she stated, Judge Parker granted the Defendants'
motion to transfer the action to the Southern District of
California. The Clerk of Court is respectfully directed to transfer
the case in its entirety. Judge Parker deferred to the Southern
District of California with respect to the aspect of the motion
that seeks dismissal of certain claims.
A full-text copy of the Court's April 1, 2022 Order is available at
https://tinyurl.com/5n8zdhay from Leagle.com.
ARGUS CONTRACTING: Scheduling Order Entered in Geiz Class Suit
--------------------------------------------------------------
In the class action lawsuit captioned as Juana Elisa Carrillo Geiz
v. Argus Contracting LP, et al., Case No. 2:21-cv-09590-MCS-MAA
(C.D. Cal.), the Hon. Judge Marck C. Scarsi entered a scheduling
order as follows:
Event Date
-- Non-Expert Discovery Cut-Off: November 1, 2022
-- Expert Disclosure (Initial): October 20, 2022
-- Expert Disclosure (Rebuttal): November 10, 2022
-- Expert Discovery Cut-Off: December 1, 2022
-- Deadline to File a Motion for Class June 6, 2022
Certification:
-- Deadline to File an Opposition to June 21, 2022
the Motion for Class Certification:
-- Deadline to File a Reply: July 11, 2022
-- Hearing Date on Motion for Class August 1, 2022
Certification:
Argus is a full service mechanical insulation contractor.
A copy of the Court's order dated March 25, 2022 is available from
PacerMonitor.com at https://bit.ly/3jEnREQ at no extra charge.[CC]
BANCO NACIONAL: Bid to Revisit Dismissal of Antitrust Suit Denied
-----------------------------------------------------------------
In the case, IN RE: MEXICAN GOVERNMENT BONDS ANTITRUST LITIGATION,
Case No. 18-CV-2830 (JPO) (S.D.N.Y.), Judge J. Paul Oetken of the
U.S. District Court for the Southern District of New York denied
the Plaintiffs' motion for reconsideration of the Nov. 30, 2020
order that granted the Moving Defendants' motion to dismiss the
complaint for lack of personal jurisdiction.
I. Background
In the consolidated putative class action, the Plaintiffs allege
that the Defendants conspired to manipulate the market for certain
debt securities issued by the Mexican government. The Plaintiffs
are U.S. pension funds alleging that they purchased or sold Mexican
government bonds through certain distribution channels. The Second
Consolidated Amended Class Action Complaint generally alleges that
several banks and related affiliates conspired to sell Mexican
government bonds ("MGB") through those channels at
supra-competitive prices.
The alleged conspiracy works like this: The Bank of Mexico issues
Mexican government bonds in an auction each week. The auction is
limited to a group of pre-approved financial institutions,
designated "Market Makers." Those institutions include the Moving
Defendants. Once issued bonds, the Moving Defendants may sell them
in the over-the-counter market.
The Moving Defendants are Banco Nacional de Mexico, S.A.,
Institucion de Banca Multiple, Grupo Financiero Banamex; Banco
Santander (Mexico), S.A., Institucion de Banca Multiple, Grupo
Financiero Santander Mexico; Bank of America Mexico, S.A.,
Institucion de Banca Multiple, Grupo Financiero Bank of America;
BBVA Bancomer S.A., Institucion de Banca Multiple, Grupo Financiero
BBVA Bancomer; Deutsche Bank Mexico, S.A., Institution de Banca
Multiple; and HSBC Mexico, S.A., Institucion de Banca Multiple,
Grupo Financiero HSBC.
As relevant in the matter, the Moving Defendants are all
Mexico-based banks. When they sell a bond in the over-the counter
market, they use an MGB trading desk in Mexico, a nonparty
affiliate's sales desk in New York, and a nominal broker-dealer
affiliate. In a typical sale, a customer from the United States
would contact a sales desk in New York to trade MGBs. The sales
desk would forward the customer request to the MGB trading desk in
Mexico. The MGB trading desk would determine a price, which it
would send to the sales desk in New York by telephone or
electronically. The sales desk in New York would offer the price to
the customer.
If a customer accepted, the MGB trading desk in Mexico would
distribute the bonds. They would execute a "back-to-back"
transaction. That means that the trading desk would transfer the
bonds to a broker-dealer, who would simultaneously execute a
transaction with the customer. The customer would receive the bonds
in his account in the United States.
The Court granted a motion to dismiss the SAC for lack of personal
jurisdiction on Nov. 30, 2020. It concluded that the exercise of
jurisdiction would not comport with constitutional due process. In
doing so, the Court rejected the Plaintiffs' argument that there
was specific jurisdiction over the Moving Defendants. It concluded
that the "dispositive authority" on the issue was Charles Schwab
Corp. v. Bank of America Corp., 883 F.3d 68 (2d Cir. 2018).
In Schwab, as in the present case, the fixing of the rate occurred
outside of the United States, but the sales of the instruments
occurred in the United States. The Court read Schwab to conclude
that there was no specific jurisdiction over claims that the
defendants there had submitted fraudulent rates, but there was
specific jurisdiction over claims that the defendants had made
misrepresentations during sales.
Applying Schwab, the Court concluded that there was no specific
jurisdiction over the Plaintiffs' antitrust claims because the
alleged wrongful conduct -- conspiring to fix MGB auctions,
conspiring to inflate MGB prices, and conspiring to fix the bid-ask
spread -- occurred in Mexico. And it concluded that there was no
specific jurisdiction over the Plaintiffs' unjust enrichment claim
because it was based on the same allegedly wrongful conduct.
Accordingly, the Court granted the Moving Defendants' motion to
dismiss.
The Plaintiffs have moved for reconsideration under Federal Rule of
Civil Procedure 54(b), arguing that Ford Motor Co. v. Montana
Eighth Judicial District Court, 141 S.Ct. 1017 (2021), reflects an
intervening change in law that compels a different result.
II. Discussion
A. Timeliness
The Plaintiffs' motion for reconsideration is denied as untimely.
Local Rule 6.3 directs a party to file a notice of motion for
reconsideration "within 14 days after the entry of the Court's
determination of the original motion."
Judge Oetken finds that the Plaintiffs did not do so, nor did they
ask for an extension. The Plaintiffs protest that they rely on an
intervening change in law, and Ford had not been decided at the
time. But the Court's order highlighted Ford in the order granting
the Moving Defendants' motion to dismiss for lack of jurisdiction,
which placed Plaintiffs on notice that Ford might bear on the
relevant law, and the Plaintiffs could have asked for an extension
at that time.
In any event, the Plaintiffs did not file a motion for
reconsideration within 14 days of that decision either; they waited
nearly two months after Ford to raise their objection. Hence, the
motion is untimely.
B. Merits
Judge Oetken also denied the Plaintiffs' motion for reconsideration
as unpersuasive. The Plaintiffs move for reconsideration on the
ground that the Court is no longer bound by Schwab. But the facts
there are indistinguishable. In Schwab, the alleged misconduct --
setting fraudulent rates -- took place outside of the United
States, the sales of the instruments took place in the United
States, and those sales did not give rise to specific jurisdiction
over a fraud claim.
In the present case, the alleged misconduct -- conspiring to fix
auctions, prices, and a bid-ask spread -- took place outside of the
United States, and the sales of the instruments took place in the
United States. Those sales must also not give rise to specific
jurisdiction over an antitrust claim. There, as in the instant
case, the sales were not part of the misconduct in the suit. Nor is
there any other legally recognized connection that might justify
specific jurisdiction. The Court is "bound" by Schwab "unless and
until that case is reconsidered by the Second Circuit sitting in
banc (or its equivalent) or is rejected by a later Supreme Court
decision."
The Plaintiffs argue that Ford displaced Schwab. But Ford and
Schwab are not irreconcilable. Ford is not about the sale of
financial instruments; not about rate-setting; and not about fraud
or conspiracy. And Ford, by its terms, does not compel the
conclusion that there is specific jurisdiction over foreign
misconduct based on sales in the United States like those in
Schwab. At most, Ford undermines the rationale leading to Schwab's
bottom line. It is not all but certain that the Second Circuit will
overrule Schwab. Accordingly, the Plaintiff's motion for
reconsideration is denied.
III. Conclusion
For the foregoing reasons, Judge Oetken denied the Plaintiffs'
motion for reconsideration. The Clerk of Court is directed to close
the motion at Docket Number 228.
A full-text copy of the Court's March 30, 2022 Opinion & Order is
available at https://tinyurl.com/mpfbz7ry from Leagle.com.
BIRCH BENDERS: Pino Files Mislabeling Case Over Pancake Mixes
-------------------------------------------------------------
BRITTNEY PINO and TERRI GAMINO, as individuals, on behalf of
themselves, the general public, and those similarly situated,
Plaintiffs v. BIRCH BENDERS, LLC, Defendant, Case No.
3:22-cv-02194-TSH (N.D. Cal., April 7, 2022) is a class action
against the Defendant seeking redress for its unlawful and
deceptive practices in labeling and marketing its pancake and
waffle mixes in violation of the California Consumers Legal
Remedies Act and the False Advertising Law.
According to the complaint, the Defendant prominently labels some
of its Birch Benders pancake and waffle mixes as providing specific
amounts of protein per serving depending on the product, such as
"10g PROTEIN" per serving on the front label of its Birch Benders
Plant Protein Pancake and Waffle Mix. The consumers, including
Plaintiffs, in turn, reasonably expect that each product will
actually provide the amount of protein per serving claimed on the
front of the product package, says the suit.
Defendant manufactures, distributes, markets, advertises, and sells
a variety of consumer food products under the brand name "Birch
Benders."[BN]
The Plaintiffs are represented by:
Seth A. Safier, Esq.
Marie McCrary, Esq.
Hayley Reynolds, Esq.
GUTRIDE SAFIER LLP
100 Pine Street, Suite 1250
San Francisco, CA 94111
Telephone: (415) 336-6545
Facsimile: (415) 449-6469
BLUETRITON BRANDS: Spano Sues Over Non-COBRA Compliant Notice
-------------------------------------------------------------
JOSEPH SPANO, individually and on behalf of all others
similarly-situated, Plaintiff v. BLUETRITON BRANDS, INC., d/b/a
NESTLE WATERS NORTH AMERICA, a foreign profit corporation,
Defendant, Case No. 8:22-cv-00850-TPB-AAS (M.D. Fla., April 8,
2022) arises from the alleged failure of the Defendant to provide
Plaintiff and the putative class members whom he seeks to represent
with a COBRA compliant notice of their right to continue their
health insurance benefits following a qualifying event in violation
of the Employee Retirement Income Security Act of 1974.
According to the complaint, the Defendant's COBRA Notice threatens
criminal/civil prosecution, requiring people to certify an
acknowledgement that "any person who knowingly provides materially
false, incomplete, or misleading information is considered to have
committed an act to defraud or deceive the Group Health and Welfare
Plan Sponsor. The filing of any application for insurance or other
claim for benefits based on false, misleading, or incomplete
information is a fraudulent act and may result in criminal or civil
penalties."
According to the complaint, the Defendant deliberately used a COBRA
notice intended to discourage plan participants from electing COBRA
continuation coverage to minimize its exposure to expensive claims,
as the people that typically elect COBRA continuation coverage are
more expensive to insure because of age or existing health
conditions.
Bluetriton Brands, Inc. is the plan sponsor and plan administrator
of the Group Health and Welfare Plan.[BN]
The Plaintiff is represented by:
Marc R. Edelman, Esq.
MORGAN & MORGAN, P.A.
201 N. Franklin Street, Suite 700
Tampa, FL 33602
Telephone: (813) 223-5505
Facsimile: (813) 257-0572
E-mail: MEdelman@forthepeople.com
BOB DEAN: Verdin, et al., Seek FLSA Conditional Class Certification
-------------------------------------------------------------------
In the class action lawsuit captioned as JANICE VERDIN, CATHERINE
NAQUIN, MARY HELMER, OLIVIA HELMER, LAUREN HELMER, INDIVIDUALLY AND
ON BEHALF OF OTHERS SIMILARLY SITUATED. v. BOB DEAN, JR., MAISON
DE'VILLE NURSING HOME OF HARVEY, L.L.C., ST. ELIZABETH'S CARING,
L.L.C., RACELAND MANOR NURSING HOME, INC., MAISON DE'VILLE NURSING
HOME, INC., RIVER PALMS NURSING & REHAB, L.L.C., UPTOWN HEALTHCARE
CENTER, L.L.C., BOB DEAN ENTERPRISES, INC., AND LOUISIANA
HEALTHCARE CONSULTANTS, L.L.C., Case No. 2:21-cv-01976-JCZ-DM (E.D.
La.), the Plaintiffs ask the Court to enter an order:
1. granting conditional certification of this case as a
collective action pursuant to 29 U.S.C. section 216(b);
2. directing that formal notice of this collective action be
sent to all employees of Defendants, Bob Dean, Jr., Bob
Dean Enterprises, Inc., Maison De'ville Nursing Home of
Harvey, LLC, St. Elizabeth's Caring, LLC; Raceland Manor
Nursing Home, Inc., Maison De'ville Nursing Home, Inc.,
River Palms Nursing & Rehab, LLC, Uptown Healthcare
Center, LLC and Louisiana Health Care Consultants, LLC,
that reported to work at the warehouse in Independence,
Louisiana, between August 27, 2021 through September 1,
2021 for the Hurricane Ida evacuation; and
3. directing the Defendants to produce a computer-readable
list of the names, last known addresses, telephone numbers
and e-mail addresses for all employees who reported to
work at the warehouse in Independence, Louisiana, between
August 27, 2021 through September 1, 2021 for the
Hurricane Ida evacuation.
Maison De'Ville is a skilled facility.
A copy of the Plaintiffs' motion to certify class dated March 28,
2022 is available from PacerMonitor.com at https://bit.ly/3uLPIZS
at no extra charge.[CC]
The Plaintiffs are represented by:
Jonathan C. Pedersen, Esq.
839 St. Charles Avenue, Suite 306
New Orleans, LA 70130
Telephone: (504) 581-3610
Facsimile: (504) 581-7509
E-mail: Jcpedersen@howardandreed.com
- and -
Shawn C. Reed, Esq.
516 N. Columbia Street
Covington, LA 70433
Telephone: (985) 893-3607
Facsimile: (985) 893-3478
E-mail: Sreed@howardandreed.com
BULLSEYE ENERGY: Scheduling Order Entered in Jeter Class Suit
-------------------------------------------------------------
In the class action lawsuit captioned as KEVIN L. JETER, JOE A.
JETER, BARBARA LUCAS, JAMES H. MILLER, SHARON RIGSBY MILLER, LARRY
SMITH, and JANICE SUE PARKER, individually and as Class
Representatives on Behalf of All Similarly-Situated Persons, and
JAMES D. ENLOE, CAROLYN R. ENLOE, and SCOTT BAILY, individually and
as Class Representatives on Behalf of All Similarly-Situated
Persons, v. BULLSEYE ENERGY, INC., CEP MID-CONTINENT, L.L.C.,
KRS&K, an Oklahoma partnership, GASHOMA, INC., PURGATORY CREEK GAS,
INC., REDBIRD OIL, an Oklahoma partnership, WILD WEST GAS, LLC,
WHITE HAWK GAS, INC., FOUNTAINHEAD, LLC, ROBERT M. KANE, LOUISE
KANE ROARK, ANN KANE SEIDMAN, MARK KANE, PAMELA BROWN, and GARY
BROWN, Case No. 4:12-cv-00411-TCK-CDL (N.D. Okla), the Hon. Judge
Terence C. Kern entered a scheduling order as follows:
Event Schedule
-- Class Certification Motion June 10, 2022
filed with supporting
evidence, including expert
disclosures:
-- Class Certification Response July 15, 2022
filed with supporting
evidence, including expert
disclosures:
-- Class Certification Discovery August 19, 2022
Cutoff:
-- Class Certification Reply August 19, 2022
filed with any rebuttal
evidence, including rebuttal
expert disclosures, if any:
-- Class Certification Hearing TBD
(specific date to be set by
Court at a later date):
A copy of the Court's order dated March 28, 2022 is available from
PacerMonitor.com at https://bit.ly/3vpUBqz at no extra charge.[CC]
CASTLEROCK FARMING: Court Narrows Claims in Moreno Suit
-------------------------------------------------------
In the class action lawsuit captioned as MARIA G. MORENO, ESTHER L.
LOPZ, et al., v. CASTLEROCK FARMING AND TRANSPORT INC., J.L.
PADILLA & SONS LABOR SERVICES INC., et al., Case No.
1:12-cv-00556-AWI-BAK (E.D. Cal.), the Court entered an order
granting in part and denying in part the Defendants' motions to
dismiss First Amended Complaint:
The following three determinations are established:
-- All putative class claims pled against Defendants prior to
April 10, 2008, are dismissed without leave to amend as
time barred;
-- Putative class claims based on allegations that workers
were not paid for washing grape trays or were required to
purchase or provide their own tools are dismissed without
leave to amend because those putative classes were denied
certification in Soto; and
-- The PAGA claims of all named Plaintiffs (Maria G. Moreno,
Esther L. Lopez, Francisco Orozco, Abraham Ortiz, Javier
Garcia, Israel Lopez, and Florencia Gutierrez) are
dismissed without leave to amend because their
administrative notice.
This case exists in the shadow of a number of previous cases
involving the same or similar subject matter (especially Soto v.
Castlerock, Case No. 09-0701, which was ultimately dismissed). The
Plaintiffs are various farm laborers who worked for farm labor
contractors (FLCs) on certain table grape vineyards in Tulare and
Kern Counties. The Plaintiffs seek to represent a class of workers,
alleging that their employers violated a number of California labor
laws, California unfair competition law, and the federal Migrant
and Seasonal Agricultural Workers Protection Act (MSAWPA).
(a) forcing employees to work pre-shift and post-shift 'off
the clock' time without compensation;
(b) forcing employees to work a second shift without
compensation and without split shift pay, or in the
alternative, failing to pay for travel time and incurred
expenses for work performed off premises;
(c) forcing employees to purchase tools from the employer or
otherwise supply their own tools and equipment without
reimbursement;
(d) enforcing unlawful piece-rate policies that result in
unpaid time and unpaid res breaks;
(e) failing to pay minimum wages;
(f) failing to pay double minimum wage to employees who
provide or are required to purchase their own tools;
(g) failing to authorize and permit proper rest periods of at
least 10 minutes per 4 hours worked or major fraction
thereof and failing to pay such employees one hour of pay
at the employee's regular rate of compensation for each
workday that the rest period is not provided, as required
by California state wage and hour laws; and
(h) requiring non-exempt employees to work at least five (5)
hours without a meal period and failing to pay such
employees one hour of pay at the employee's regular rate
of compensation for each workday that the meal period is
not provided.
The classes Plaintiffs hope to certify consist of:
"All persons employed directly or jointly by Castlerock in
California as non-exempt hourly and/or piece-rate employees
at any time during the period of September 12, 2001 to the
present;"
"All persons employed by J.L. Padilla and Castlerock as non-
exempt hourly and/or piece-rate employees at Castlerock
vineyards in California at any time during the period of
April 10, 2008 to the present;" and
"All persons employed by Melba Nuñez and Castlerock as non-
exempt hourly and/or piece-rate employees at Castlerock
vineyards in California at any time during the period of
April 10, 2008 to the present."
The Defendants J.L. Padilla and Sons Labor Service, Inc. ("Padilla
FLC") and Melba Nuñez Contracting ("Nuñez FLC") are FLCs which
employed the Plaintiffs. The Defendant Castlerock Farming and
Transport, Inc. is a corporation owned by the Defendant Albert
Good. Mr. Good also owned the vineyards the Plaintiffs worked at
Castlerock provided business services to Mr. Good in relation to
those vineyards. Which parties qualify as the Plaintiffs' employers
are disputed in this case.
A copy of the Court's order dated March 28, 2022 is available from
PacerMonitor.com at https://bit.ly/3jJL3la at no extra charge.[CC]
CLOROX COMPANY: Lip Products Contain Toxic Substances, Barrett Says
-------------------------------------------------------------------
TRACY BARRETT, LAURA HARMAN, MARILYN MOOREBUICE, individually and
on behalf of themselves and all others similarly situated,
Plaintiffs v. THE CLOROX COMPANY, BURT'S BEES, INC., and THE BURT'S
BEES PRODUCT COMPANY, Defendant, Case No. 4:22-cv-02193-DMR (N.D.
Cal., April 7, 2022) is a civil class action brought by Plaintiffs
on behalf of all consumers who purchased certain Burt's Bees Lip
Products, which are marketed as clean and natural beauty products
for normal, everyday use, but which Plaintiffs' independent
laboratory testing has confirmed contain harmful per- and
polyfluoroalkyl substances.
According to the complaint, Defendants do not disclose that the Lip
Products contain PFAS, a chemical which is entirely inconsistent
with their clean beauty, 100% natural, and free of chemicals of
concern campaign. The disclosure of this matter would inevitably
impact its sales and standing in the rapidly growing clean beauty
market, adds the complaint. The Defendants' failure to disclose the
presence of PFAS in the Lip Products is driven by Defendants'
desire to maximize sales revenue, it further adds.
The Plaintiffs seek damages and equitable remedies for themselves
and for the proposed Classes under the California Consumer Legal
Remedies Act, California Unfair Competition Law, California False
Advertising Law, Georgia Fair Business Practices Act, Georgia's
Uniform Deceptive Trade Practices Act, and Mich. Comp. Laws Ann.
The Clorox Company is an American global manufacturer and marketer
of consumer and professional products.[BN]
The Plaintiffs are represented by:
Alex R. Straus, Esq.
MILBERG COLEMAN BRYSON PHILLIPS GROSSMAN PLLC
280 S. Beverly Drive, Ste. PH
Beverly Hills, CA 90212
Telephone: (917) 471-1894
E-mail: astraus@milberg.com
- and -
Rachel Soffin, Esq.
MILBERG COLEMAN BRYSON PHILLIPS GROSSMAN PLLC
800 S. Gay Street, Suite 1100
Knoxville, TN 37929
Telephone: (865) 247-0080
Facsimile: (865) 522-0049
E-mail: rsoffin@milberg.com
- and -
Harper T. Segui, Esq.
MILBERG COLEMAN BRYSON PHILLIPS GROSSMAN PLLC
825 Lowcountry Blvd., Suite 101
Mt. Pleasant, SC 29464
Telephone: (919) 600-5000
E-mail: hsegui@milberg.com
- and -
Erin Ruben, Esq.
MILBERG COLEMAN BRYSON PHILLIPS GROSSMAN PLLC
900 W. Morgan Street
Raleigh, NC 27603
Telephone: (919) 600-5000
E-mail: eruben@milberg.com
- and -
Thomas A. Pacheco, Esq.
MILBERG COLEMAN BRYSON PHILLIPS GROSSMAN PLLC
15453 Indianola Drive
Derwood, MD 20855
Telephone: (919) 600-5000
E-mail: tpacheco@milberg.com
DETROIT EDISON: Nolan Suit Seeks to Certify Settlement Class
------------------------------------------------------------
In the class action lawsuit captioned as Leslie D. Nolan,
individually and on behalf of all others similarly situated, v. The
Detroit Edison Company; DTE Energy Corporate Services LLC, an
Affiliated Company of the Detroit Edison Company; DTE Energy
Company Retirement Plan; DTE Energy Benefit Plan Administration
Committee; Janet Posler, as Designated Representative for DTE
Energy Benefit Plan Administration Committee; Qualified Plan
Appeals Committee [Michael S. Cooper, Renee Moran, Jerome Hooper],
Case No. 2:18-cv-13359-DML-SDD (E.D. Mich.), the Plaintiff asks the
Court to enter an order certifying a conditional settlement class
and preliminary approval of a settlement agreement:
"All DTE employees who, in 2002, elected to transfer from the
DTE Traditional Plan to the DTE Cash Balance Plan, (as those
terms are defined in the DTE Energy Company Retirement Plan,
and the beneficiaries of any deceased such DTE employees."
There are 466 individuals that transferred from the TP to the CBP.
-- Nolan and her attorneys believe the Settlement is fair,
reasonable and adequate.
The $5.5 million settlement amount represents approximately
52% of the $10,612,319 in gross damages for all Class
members, and the Class members will receive approximately
33.5% of the gross damages -- a high percentage recovery
when compared to recoveries in other complex class actions
which frequently settle for less than 25 cents on the
dollar. The recovery here is satisfactory for the
additional reason that there was no judgment on the merits
in favor of the Class, meaning there existed the prospect
of a zero dollar recovery, or a recovery less than the
settled amount, if their Claims had been litigated to
judgment. These facts provide compelling evidence that the
settlement negotiations were conducted at arms' length,
and without any fraud or collusion.
DTE is a Detroit-based diversified energy company involved in the
development and management of energy-related businesses and
services in the United States and Canada.
A copy of the Plaintiff's motion to certify class dated March 28,
2022 is available from PacerMonitor.com at https://bit.ly/3vmNL5j
at no extra charge.[CC]
The Plaintiff is represented by:
Eva T. Cantarella, Esq.
Bradley J. Schram, Esq.
Robert P. Geller, Esq.
Patricia A. Stamler, Esq.
HERTZ SCHRAM PC
1760 S. Telegraph Rd.
Bloomfield Hills, MI 48302
Telephone: (248) 335-5000
E-mail: ecantarella@hertzschram.com
bschram@hertzschram.com
rgeller@hertzschram.com
pstamler@hertzschram.com
The Defendants are represented by:
Christopher K. Meyer, Esq.
Mark D. Blocker, Esq.
Benjamin I. Friedman, Esq.
SIDLEY AUSTIN LLP
One South Dearborn St.
Chicago, Ill. 60603
Telephone: (312) 853-0523
E-mail: cmeyer@sidley.com; mblocker@sidley.com
benjamin.friedman@sidley.com
- and -
Paula Johnson-Bacon, Esq.
DTE Energy, One Energy Plaza
Detroit, MI 48226
Telephone: (313) 235-7052
E-mail: paula.bacon@dteenergy.com
DREXEL UNIVERSITY: Bid to Dismiss Rickenbaker Suit Granted in Part
------------------------------------------------------------------
In the case, GRAINGER RICKENBAKER, et al., individually and on
behalf of all others similarly situated, Plaintiffs v. DREXEL
UNIVERSITY, Defendant, Civil Action No. 20-3353 (E.D. Pa.), Judge
Petrese B. Tucker of the U.S. District Court for the Eastern
District of Pennsylvania granted in part and denied in part the
Defendant's Motion to Dismiss the Amended Complaint.
I. Background
The Plaintiff, Grainger Rickenbaker, is an individual, and a
resident and citizen of the state of South Carolina. Plaintiff
Elizabeth Mekler is an individual, and resident and citizen of the
Commonwealth of Pennsylvania. Defendant Drexel is an institution of
higher education located in Philadelphia, Pennsylvania.
The Plaintiffs in the class action raise their claims against
Drexel for: (1) violation of Pennsylvania's Uniform Trade Practices
and Consumer Protection Law (UTPCPL); (2) breach of contract; and
(3) unjust enrichment, as a result of Drexel transitioning to
online education for the Spring 2020 quarter without reducing
tuition and fees.
In March of 2020, the COVID-19 pandemic sent the world into a
tailspin. The lockdown and social distancing requirements forced
institutions for higher education to respond accordingly. Defendant
Drexel was prompted to move online to a remote learning environment
in order to comply with Pennsylvania Governor Tom Wolf's orders
requiring campuses to close.
Despite having paid full Drexel University tuition rather than
Drexel University Online tuition, being on notice that Spring Term
classes would be provided in a remote environment and, having been
able to participate in those courses for a full week before making
a final decision, the Plaintiffs did not withdraw and obtain a
refund pursuant to Drexel's refund policy. Drexel's publicly posted
refund policy entitled the Plaintiffs to a 100% refund if they
withdrew through the first week of classes. Through the fourth
calendar week of classes, there was a declining schedule of
discounts available, should students choose to withdraw. The
Plaintiffs and members of the proposed Class chose not to transfer
or withdraw, and instead continued their education at Drexel during
the Spring 2020 quarter.
However, upon starting the term, the Plaintiffs felt that "many of
the Defendant's on-campus professors were woefully technologically
illiterate and ill-prepared to teach their materials in a remote
fashion" and that "most of these professors had never been
evaluated, trained, or certified in the intricacies of teaching
online." They also found Defendant's statement that "[b]efore the
first day is out, professors and their students will have gathered
online for more than 750 course sessions previously scheduled in
traditional classrooms and labs. By week's end, they will be
followed by several thousand online sessions, amounting to
approximately 3,250 instructional meetings" was misleading, as many
courses never met or gathered at all and consisted of pre-recorded
lecture videos or self-study homework assignments. The Plaintiffs
also allege that professors failed to conduct regular office hours
despite the promise in Drexel's March 25, 2020 message.
The Plaintiffs argue that by choosing to remain enrolled and/or
paying tuition, that created a new contract which provided that
Plaintiffs and other members of the Class would pay tuition for or
on behalf of students and, in exchange, Defendant would provide
online remote instruction pursuant to the terms and policies set
forth in Defendant's emails, together with those promises made by
Defendant in its other publications, bulletins, and circulars,
including specifically, its registration portal.
The Plaintiffs believe that the Defendants breached this new
contract, and they retained tuition money paid by the Plaintiffs
and other members of the Class, without providing them the full
benefit of their bargain. As an alternative to their UTPCL claim,
the Plaintiffs also raise a third cause of action for unjust
enrichment to the extent that the Court determines a contract does
not exist or apply to the second cause of action. The Plaintiffs
allege they were charged and paid significantly more than the
advertised price, causing them to lose money. Because of the
Defendant's conduct, the Plaintiffs and members of the Class argue
they are entitled to receive compensation for their damages, treble
damages and reasonable attorneys' fees, pre and post judgment
interest on any amounts awarded, and other such relief as may be
just and proper.
Presently before the Court are the Defendant's Motion to Dismiss
the Amended Complaint, the Plaintiffs' Memorandum in Opposition,
the Defendant's Reply in Support of its Motion to Dismiss, the
Defendant's Notices of Supplemental Authorities, the Plaintiff's
Notice of Supplemental Authority, and the Defendant's Response in
Opposition to the Plaintiff's Notice of Supplemental Authority.
The Defendant argues that the Plaintiffs were adequately noticed of
its Spring 2020 term tuition and fees policy, that they presented
clear and accurate information to the Plaintiffs, and yet the
Plaintiffs still chose to avail themselves of Spring 2020 term
programming and earn credits towards the completion of their
degrees, so no violation, breach, or unjust enrichment took place.
II. Discussion
All of the Plaintiffs' claims center around their dissatisfaction
with the quality of their Spring 2020 term education, and they
challenge that quality of education and the academic judgments
about delivery of remote instruction during the pandemic.
Consistent with the principles of academic freedom, Pennsylvania
courts do not permit claims that seek to challenge the quality of a
school's education. Courts in Pennsylvania refuse to "recognize a
general cause of action for educational malpractice, whether framed
in terms of tort or breach of contract, where the allegation is
simply that the educational institution failed to provide a quality
education.
Drexel's statements leading up to the Spring 2020 term that it had
"an experienced and resourceful community committed to delivering
high-quality courses and exams with academic integrity and rigor"
were too general to support a cause of action for education
quality. And Drexel citing its experience in providing online
education in the past is no different than the alleged promise of a
"quality education" in Cavaliere. The Plaintiffs' complaints about
the quality of teaching provided by Drexel's professors in a remote
environment, their availability for office hours and whether their
classes were synchronistic or asynchronistic are challenges to
Drexel's "academic decisions and judgments," and as such, cannot
plausibly state a claim for relief under UTPCPL, for breach of
contract, or for unjust enrichment.
A. Unfair Trade Practices - 73 P.S. Sections 201-1-201-9.2
The Plaintiffs allege that Drexel misrepresented what tuition they
would be charging students for the remote Spring semester by
stating on March 25, 2020 that "just as with online courses offered
through Drexel University Online, normal tuition and fees will
apply for the Spring 2020 quarter." He believes this statement was
unlawfully false and misleading under the UTPCPL, making Plaintiffs
believe tuition for in-person students would be reduced to the
Drexel University Online rate.
Judge Tucker holds that the Plaintiffs fail to allege that they or
any other proposed class members chose not to transfer or withdraw
because they justifiably relied on Drexel's alleged
misrepresentations. Justifiable reliance and causation are required
elements of a UTPCPL claim in Pennsylvania. The Plaintiffs could
not reasonably believe that they had been enrolled in Drexel
Online, rather than Drexel University. They completed Financial
Responsibility Agreements in which they acknowledged that they had
registered for classes at "Drexel University" and agreed to pay
"tuition, fees and any other balances pursuant to the Student
Financial Obligations and Tuition Repayment Agreement" to Drexel
University, not Drexel University Online. And had they actually
transferred to Drexel University Online, many of the students'
degree programs would be unavailable, as Drexel University Online
only has 16 degree options compared to the on-campus undergraduate
program's 80 degree offerings. Necessarily, the Plaintiffs' claims
for UTPCPL violations are dismissed as to tuition for the Spring
2020 term.
B. Breach of Contract
To state a breach of contract claim under Pennsylvania law, the
Plaintiffs must allege: "1) the existence of a contract and its
terms; 2) a breach of the duty imposed by the contract; and 3)
damages that resulted."
Judge Tucker finds that the Plaintiffs have not identified any
contractual promise or obligation that Drexel breached with regards
to Spring 2020 term tuition. Under Pennsylvania law, the "contract
between a private institution and a student is comprised solely of
the written materials provided to the students." The Plaintiffs
have not pointed to any written guidelines, policies, and
procedures that Drexel violated. Neither an email nor a YouTube
video is a contract.
Drexel's published policies and procedures plainly stated what
tuition was being charged and what the Plaintiffs' options were for
a refund, and both Plaintiffs, as well as all prospective class
members, executed contracts that agreed to pay that tuition and
acknowledged Drexel's refund policy. The Plaintiffs cannot override
those specific published policies with email messages and videos
that in fact make clear that normal tuition and fees would be
charged. Accordingly, their breach of contract claims for Spring
2020 tuition must be dismissed.
C. Unjust Enrichment
The Plaintiffs raise unjust enrichment claims based on their belief
that they did not receive an adequate education for the tuition and
fees that they paid, because of a reduction in quality due to
Drexel's Covid-19 compliant online education framework. To state a
claim for unjust enrichment under Pennsylvania law, a plaintiff
must allege: "(1) benefits conferred on defendant by plaintiff; (2)
appreciation of such benefits by defendant; and (3) acceptance and
retention of such benefits under such circumstances that it would
be inequitable for defendant to retain the benefit without payment
of value.
Judge Tucker rules that because the Plaintiffs attended their
courses and received credit for the courses they completed, there
can be no unjust enrichment. Further, there was a written contract
between each Plaintiff and Drexel for which there was a
corresponding exchange of value, undercutting Plaintiffs' unjust
enrichment claims. Although the Plaintiffs allege that Drexel
failed to appropriately utilize the fees and tuition it received
considering their decision not to reduce the cost of attendance,
the Plaintiffs still clearly received a benefit from the tuition
they paid in the form of academic credits going towards their
degrees.
Drexel contends that because the tuition and fees were used to
fulfill their charitable mission by continuing to provide an
education and student services remotely in the middle of a
pandemic, there is no basis for an unjust enrichment claim.
Judge Tucker partially agrees. She says, the Plaintiffs received
the benefit of academic credits going towards their degree as
consideration for their tuition payments, and had the opportunity
to withdraw if they did not feel they were receiving adequate
education for the value of their tuition dollars, thus, their
unjust enrichment claim is dismissed as to tuition. However, the
Plaintiffs did not receive commensurate benefits for their school
fees, given what is normally available for that amount. Thus, the
Plaintiffs' unjust enrichment for university fees claim still
stands.
III. Conclusion
Given the Plaintiffs' failure to raise a claim upon which relief
can be granted with regards to Drexel's tuition for the Spring 2020
term, Judge Tucker granted the Defendant's Motion to Dismiss as to
Plaintiffs' three claims for tuition and denied as to the claims
for fees. An appropriate Order follows.
A full-text copy of the Court's March 30, 2022 Memorandum is
available at https://tinyurl.com/2p8aydnc from Leagle.com.
EASSIST INC: Lewis Seeks Conditional FLSA Class Certification
-------------------------------------------------------------
In the class action lawsuit captioned as CHRISTINA LEWIS, an
individual, individually and on behalf of all others similarly
situation, v. EASSIST, INC. D/B/A EASSIST DENTAL SOLUATIONS, a Utah
corporation, Case No. 2:22-cv-00121-HCN-DAO (D. Utah), the
Plaintiff asks the Court to enter an order conditionallying certify
a collective action pursuant to Section 216(b) of the Fair Labor
Standards Act ("FLSA") consisting of:
"All persons who worked as remote dental billing specialists
(or in other positions with similar job titles or job duties)
for the Defendant at any time from three years prior to the
filing of this Complaint through the entry of judgment; who
were not paid $7.25 per hour for all hours in a given
workweek and/or were not paid time-and-one-half for all hours
worked over 40 in a given workweek are known as (the
"Collective Members")."
The Plaintiff also requests that the Court order the Defendant to
produce within three days of its order, a list in electronic and
importable format, of all workers including: (1) their full name,
(2) all mailing addresses, (3) all email addresses (work and
personal), (4) employee identification number, if any, (5) last
four digits of their social security number, and (6) dates of
employment. All the requested information is necessary to allow
them sufficient information to confirm current addresses and/or to
locate those persons who may have moved, the Plaintiff adds.
The Plaintiff seeks to recover unpaid overtime wages for herself
and the Collective Members, requiring the proper payment of
overtime wages to employees, under the collective action mechanism
of the FLSA.
Though the Defendant classified Plaintiff as an independent
contractor, she in fact was an employee. The Plaintiff was not
hired to work for a finite time period; rather, she expected to
continue working for Defendant indefinitely until she quit or
Defendant no longer assigned her customers, the lawsuit says.
A copy of the Plaintiff's motion to certify class dated March 28,
2022 is available from PacerMonitor.com at https://bit.ly/3O9KBup
at no extra charge.[CC]
The Plaintiff is represented by:
Jason D. Haymore, Esq.
Brandon Sipherd, Esq.
PEARSON BUTLER, LLC
1802 South Jordan Parkway, Suite 200
South Jordan, UT 84095
Telephone: (801) 495-4104
E-mail: JasonH@pearsonbutler.com
brandon@pearsonbutler.com
- and -
Amanda Kuklinski, Esq.
ZOLDAN LAW GROUP, PLLC
5050 N. 40 th St., Suite 260
Phoenix, AZ 85018
Telephone: (480) 442-3410
E-mail: akuklinski@zoldangroup.com
EAST HANOVER, NJ: 3d Cir. Affirms Dismissal of Marinaccio v. Police
-------------------------------------------------------------------
In the case, PAUL MARINACCIO, Appellant v. EAST HANOVER BOARD
POLICE DEPARTMENT; TOWNSHIP OF EAST HANOVER; PAULA MASSARO; POLICE
CHIEF CHRISTOPHER CANNIZO; CAPTAIN JACK AMBROSE; POLICEMAN ROBERT
CHIAZZO; POLICEMAN TED PRIBULLA; POLICEMAN DANIEL McCLURE;
POLICEMAN DELLA PIAZZA; POLICEMAN MATTHEW CERRATO; POLICEMAN
HAWISZCZAK; POLICEMAN ROBERT JORDAN; POLICEMAN ZAMOJOWSKI;
POLICEMAN DONNARD JUSTIN; POLICEMAN KEITH GUNTHER; POLICEMAN
MICHAEL LIOTTA; POLICEMAN BRIAN STEVENS, Case No. 20-2677 (3d
Cir.), the U.S. Court of Appeals for the Third Circuit affirmed the
judgment of the District Court dismissing the case.
Appellant Marinaccio filed a complaint in the Superior Court of New
Jersey against East Hanover Township, the East Hanover Police
Department, and numerous officers therein, which was later removed
to the District of New Jersey. Marinaccio alleged that he was given
a citation for violating East Hanover Ordinance 155-9A, which
restricts persons from parking vehicles on East Hanover streets
between 2:00 a.m. and 6:00 a.m. He pled not guilty to the offense,
but was convicted at a bench trial in municipal court and ordered
to pay a total of $50.
After the municipal trial, Marinaccio claimed that the police
department and various officers violated his constitutional rights
under the First, Fourth, and Fourteenth Amendments (as well as a
number of state laws) for a number of reasons, including that there
were allegedly no signs on the street informing of the restriction
and that the Township "blocked his access to the evidence of
defendants' violations" when he filed an internal police department
claim. He sought money damages, as well as an injunction abolishing
Ordinance 155-9A.
The District Court granted the Defendants' motion for summary
judgment and held that there were no constitutional violations and
that East Hanover could not be held liable under Monell v.
Department of Social Services of City of New York, 436 U.S. 658
(1978). It also declined to exercise supplemental jurisdiction over
the various state claims. The District Court dismissed the case,
and the appeal followed.
The Third Circuit opines that the District Court properly
considered the evidence presented and granted the Defendants'
motion. It explains that Marinaccio's First Amendment claim centers
around the police department's alleged refusal to provide him with
documents. It appears that, by way of an internal police department
claim filed before the complaint in the case was filed, Marinaccio
requested documents and videos relating to the enforcement of
Ordinance 155-9A. He claimed that he was not provided with any of
the evidence he requested. Such a claim was not properly brought
under the First Amendment.
To the extent that Marinaccio challenged his $50 fine as a seizure
under the Fourth Amendment, te Third Circuit holds that that claim
fails because he did not show (or even argue) that the imposition
of the fine was "unreasonable." The relatively small sum was
assessed after a municipal trial in which Marinaccio was able to
present his arguments about the Ordinance. Marinaccio also failed
to allege or provide any evidence that his vehicle had been subject
to a seizure under the Fourth Amendment as the government merely
threatened to seize it. And, to the extent that he intended to
bring a malicious prosecution claim under the Fourth Amendment
based on his traffic citation, Marinaccio cannot prove that he
ultimately prevailed in state court, because he was convicted at a
bench trial in municipal court.
The Fourteenth Amendment includes protections for both procedural
and substantive due process. Marinaccio stated in his complaint
that his substantive rights under the Due Process Clause were
violated. To establish a substantive due process claim under
Section 1983, Marinaccio had to prove that (1) the particular
interest at issue is protected by the Fourteenth Amendment, and (2)
the government's deprivation of that protected interest shocks the
conscience. Regardless of whether he was asserting a liberty
interest grounded in the parking restrictions or a property
interest stemming from his $50 fine, the Third Circuit finds that
the claim fails because the alleged deprivation does not shock the
conscience.
Because the Individual Defendants were entitled to summary judgment
as a matter of law, the claims against both the township and the
police department must fail. The District Court also properly
declined to exercise supplemental jurisdiction over the state law
claims as the federal claims had all been dismissed.
For these reasons, the Third Circuit accordingly affirmed the
judgment of the District Court.
A full-text copy of the Court's March 30, 2022 Opinion is available
at https://tinyurl.com/2p9ef8az from Leagle.com.
ENCINITAS, CA: Mickelson Sues Over Paramedics' Unpaid OT Wages
--------------------------------------------------------------
JAMES MICKELSON on behalf of himself and other similarly situated
individuals, Plaintiff v. CITY OF ENCINITAS, Defendant, Case No.
3:22-cv-00487-BAS-BLM (S.D. Cal., April 8, 2022) is a class action
brought by the Plaintiff against the Defendant pursuant to the Fair
Labor Standards Act to recover unpaid overtime and other
compensation, interest thereon, liquidated damages, costs of suit,
reasonable attorney fees, and other relief.
The action arises from Defendant's alleged failure to properly
calculate the "regular rate" of pay used to calculate Plaintiffs'
overtime compensation under the FLSA and its failure to properly
compensate employees for compensatory time off.
The Plaintiff and all similarly situated individuals are or were
non-exempt employees of Defendant during the three years preceding
the filing of this action. They regularly respond to calls for
responding to, and participating in, medical calls for service as
fully certified paramedics and/or emergency medical technicians.
The Defendant is a political subdivision of the State of
California. Defendant is an "employer" within the meaning of 29
U.S.C. Section 203(d), an "enterprise" under 29 U.S.C. Section
203(r), and a "public agency" within the meaning of 29 U.S.C.
Section 203(x).[BN]
The Plaintiff is represented by:
James J. Cunningham, Esq.
LAW OFFICES OF JAMES J CUNNINGHAM
10405 San Diego Mission Rd., Ste. 200
San Diego, CA 92108
Telephone: (858) 693-8833
E-mail: JJC@jimcunninghamlaw.com
- and -
William B. Aitchison, Esq.
PUBLIC SAFETY LABOR GROUP
3021 NE Broadway Street
Portland, OR, 97232
Telephone: (866) 486-5556
E-mail: Will@PSLGlawyers.com
FANNIE MAY: Faces McElroy Suit Over Unpaid Overtime Wages
---------------------------------------------------------
JOHNNY MCELROY, on behalf of himself and all others similarly
situated, Plaintiff v. FANNIE MAY CONFECTIONS BRANDS INC.,
Defendant, Case No. 5:22-cv-00570-JRA (N.D. Ohio, April 8, 2022)
challenges labor policies and practices of Defendant that violate
the Fair Labor Standards Act and the Ohio Minimum Fair Wage
Standards Act.
The Plaintiff was employed by Defendant in the last three years in
its chocolate manufacturing facility in Canton, Ohio. His job
duties involved the manufacturing, packaging, and handling of food
products, such as chocolate. Other similarly situated employees are
and were employed by Defendant in the manufacturing, packaging, and
handling of food, such as chocolate, at Defendant's Canton, Ohio
manufacturing facility.
The Plaintiff asserts that he and other similarly situated
employees were not being paid overtime compensation for all hours
worked in excess of 40 each workweek.
Fannie May Confections Brands Inc. is a for-profit company that
operates a candy production facility in North Canton, Ohio.[BN]
The Plaintiff is represented by:
Robi J. Baishnab, Esq.
Jeffrey J. Moyle, Esq.
NILGES DRAHER LLC
1360 East 9th Street, Ste. 808
Cleveland, OH 44114
Telephone: (216) 230-2944
Facsimile: (330) 754-1430
E-mail: rbaishnab@ohlaborlaw.com
jmoyle@ohlaborlaw.com
FEDERAL SAVINGS: Court Denies Anthony's Bid to Dismiss Counterclaim
-------------------------------------------------------------------
In the case, MICHAEL ANTHONY, Plaintiff v. THE FEDERAL SAVINGS
BANK, NATIONAL BANCORP HOLDINGS, INC., and FDE MARKETING GROUP LLC,
Defendants, Case No. 1:21-CV-02509 (N.D. Ill.), Judge Edmond E.
Chang of the U.S. District Court for the Northern District of
Illinois, Eastern Division:
(i) granted in part and denied in part the Plaintiff's
motion to dismiss the Bank's counterclaim; and
(ii) denied in part and terminated without prejudice in part
Anthony's motion for sanctions.
I. Introduction
Mr. Anthony brought the proposed class action against, as pertinent
now, The Federal Savings Bank and National Bancorp Holdings, Inc.,
alleging violations of the Telephone Consumer Protection Act, 47
U.S.C. Section 227; 47 C.F.R. Section 64.1200(c)(2)(ii). In
response, the Bank brought a counterclaim against Anthony, alleging
that he committed common law fraud. The Bank alleges that Anthony
intentionally submitted a false name, along with his phone number,
on the website www.lowermyown-interestrate.com with the intent to
manufacture the lawsuit.
Mr. Anthony now brings a motion to dismiss the Bank's counterclaim,
arguing that the Bank has not alleged any injury or damages to
support the claim; the allegations fail to satisfy the
particularity-pleading standard of Federal Rule of Civil Procedure
9(b); and the counterclaim insufficiently alleges that the Bank
ever relied on the purported misrepresentation. In conjunction with
the dismissal motion, Anthony also moves for sanctions against the
Bank under Federal Rule of Civil Procedure 11(c) and 28 U.S.C.
Section 1927, arguing that the counterclaim is without a basis in
fact or law.
II. Background
The Bank sells residential loans and mortgages. Anthony alleges
that the Bank engages in an unlawful practice of making
telemarketing phone calls to consumers registered on the National
Do Not Call Registry. He also alleges that the Bank did not obtain
written express consent before calling consumers, in violation of
the Telephone Consumer Protection Act.
Mr. Anthony alleges that he placed his phone number (ending in
x555) on the National Do Not Call Registry back in 2004. According
to Anthony (the Bank disputes it), despite his best efforts to
maintain his privacy, over the last two years Anthony began
receiving unsolicited phone calls asking for someone named "Needle
Dee."
The Bank believes otherwise: According to the Bank, Anthony visited
www.lowermyowninterestrate.com on January 10, 2021. On this site,
there is a section for visitors to enter their information, and the
Bank alleges that it was Anthony who entered his "phone number, an
email address, the name 'Needle Dee,' the address of a home in
Lansdale, Pennsylvania, and information about the mortgage on that
home."
The Bank goes on to say that the online page provides "clear and
unambiguous language explaining that by clicking on the button to
'submit' information, the user is providing express written consent
to being called even if the user's telephone number is currently
listed on any state or federal Do-Not Call list." FDE Marketing
Group (the most recently added Defendant in the case) is a vendor
that provides customer-contact leads to the Bank. The Bank now
claims that in order to manufacture the lawsuit, Anthony made false
representations about his name and his interest in receiving calls
in the hopes of snaring a telemarketer to call him.
In contrast, Anthony asserts that he has never gone by the name
"Needle Dee" or, indeed, anything close to resembling that name. He
alleges that he received phone calls on April 6, 2021, and then
again on April 14, 2021, from the number (833) 362-4786, in which
the caller asked for "Needle Dee." To find out who was calling, in
one of the calls on April 14, Anthony "feigned interest in order to
identify the caller and enforce his rights under the TCPA."
While on the call, Anthony was connected to Moe, a mortgage broker
with the Bank. Moe solicited Anthony for the Bank's residential
mortgage products; while on the phone call, Anthony received an
email from Moe, who had an email address ending in
"@federalsavingsbank.com." Once Anthony had identified the company
behind the call, Anthony called Moe back and left him a voicemail
instructing the Bank to stop calling his number ending in x555.
Moe called Anthony back and, this time around, Anthony explained
that "his phone number was registered on the Do Not Call Registry,
that he was not Needle Dee, and he had received numerous unwanted
calls to this phone from or on behalf of FSB seeking to speak to
Needle Dee." Anthony asked Moe how his phone number had been
obtained; Moe responded that the Bank hired third-party companies,
such as FDE, to "generate calls and transfer them to Defendants."
He also spoke to Moe's managers at the Bank, Matt. O and Maggie D.
Anthony told them that "he should never have been called and that
he was seeking to be removed from all of their lists and not be
contacted again." Despite that instruction, the Bank called Anthony
(at the x555 number) four more times on April 15, 2021; the Bank
again called from the 833-362-4786 number.
It is worth noting that, as the litigation progressed, Anthony
filed an Amended Complaint and the Bank's responsive pleading did
not expressly reassert the counterclaim. But in a March 4, 2022,
status report, the parties say that Anthony has "two motions that
remain pending (a motion to dismiss TFSB's counterclaim, and a
motion for sanctions)." So the counterclaim appears to be a
still-operative pleading despite its absence in the answer to the
Amended Complaint.
III. Analysis
Before digging into the dismissal motion, it is important to note
that at issue is just that—a dismissal motion. So the analysis of
the motion is confined to the allegations set forth in the Bank's
counterclaim. This is worth noting because the motion for sanctions
was contemporaneously briefed (something the Court often disallows
and, as the discussion later shows, should have disallowed this
time around too). With the contemporaneous briefing came a bevy of
additional asserted facts, underoath declarations, and
records—all of which are external to the counterclaim and none of
which can be considered in assessing the counterclaim.
A. Motion to Dismiss
The Bank's counterclaim for common law fraud stems from the
allegation that Anthony entered false information into the
www.lowermyowninterestrate.com site, purporting to provide apparent
consent to be called under the name "Needle Dee" with the intent to
manufacture this lawsuit. Anthony moves to dismiss the
counterclaim, arguing that the Bank lacks standing, the allegations
of fraud lack specificity, and the allegations of reliance,
causation, and damages fail as a matter of law.
Judge Chang holds that Anthony is correct that the Bank's fraud
claim cannot apply to the four phone calls that the Bank made after
Anthony made clear that he was not Needle Dee and that he did not
want to be contacted by the Bank. At that point, the Bank knew
Anthony's name was not Needle Dee, so there was no false statement
(that is, it is true that Anthony's name is not Needle Dee) on
which the Bank could rely. What's more, before the final four calls
were made, Anthony had told the Bank not to call him. Again, the
Bank could not rely on the purported consent that Anthony (acting
as Needle Dee, in the Bank's version of events) had given to
receive phone calls.
So the analysis will proceed solely on whether the Bank has
adequately alleged a fraud claim as to the first two phone calls,
that is, on April 6, 2021, at 5:22 p.m., and April 14, 2021, at
2:30 p.m. Am. With the table set as to the first two phone calls,
Judge Chang turns to the rest of the arguments.
First, he finds that it is true that, in the context of the Fair
Debt Collections Practices Act, 15 U.S.C. Section 1692 et seq., the
Seventh Circuit has held that simply hiring an attorney to obtain
legal advice to deal with an unfair debt-collection practice is not
necessarily enough to qualify as an injury in fact. There might be
limits to that disqualification. In any event, the Bank is alleging
a different kind of harm: It was baited (again, on its version of
the facts) into calling Anthony in order to fraudulently
manufacture a lawsuit, which in turn naturally required the
expenditure of resources in defending. That is a concrete harm well
beyond asking a lawyer for advice in order to affirmatively bring a
claim against a debt-collection practice.
Second, Judge Chang holds that time will tell -- or more precisely,
discovery will tell -- whether the Bank can gather enough evidence
to prove the fraud scheme. The actual facts might be an obstacle to
proving the claim, but the heightened pleading standard has been
satisfied.
Third, at this stage of the litigation, the Bank's allegations must
be accepted as true. The Bank explicitly alleges that its vendor
called the number in reliance on the entered information, and that
the Bank's employee too spoke with Anthony in reliance on the
information. The Bank alleges, with specificity, that the website
contained clear language explaining that clicking "submit"
constituted express written consent to be called. There is nothing
unreasonable, as alleged, about that reliance by the Bank. Nor is
the name "Needle Dee" so odd that anyone reading it would think
that it was a fake name and that the consent thus must be fake.
Hence, Judge Change holds that reliance and causation are
adequately pleaded.
Fourth and finally, if the tale of fraud and a manufactured lawsuit
is true, then the Bank suffered damages both in the form of the
monetary value of the Bank's employee time in talking with Anthony
and soliciting him for a mortgage product and in the form of the
resources in defending the manufactured lawsuit. This element is
adequately alleged. All in all, then, the fraud counterclaim
adequately states a claim at the pleading stage.
B. Motion for Sanctions
As noted earlier, Anthony also filed a contemporaneous motion for
sanctions, arguing that the counterclaim had no basis in fact or
law.
Judge Chang explains that on whether there was a reasonable basis
in fact for the claim, now is not the right time to decide the
issue, because not all the facts are known (at least not at the
time of the briefing). As the Advisory Committee Note explains, "it
is anticipated that in the case of pleadings the sanctions issue
under Rule 11 normally will be determined at the end of the
litigation." The parties' sanctions briefing reflects this running
battle of the facts, with the Bank submitting declarations in its
response and Anthony submitting records of his own in his reply
brief (to which the Bank has not had a chance to respond to, given
that the records are in Anthony's reply).
After the summary judgment stage, Anthony can consider renewing the
motion on this particular basis, that is, the lack of a factual
basis. Only at that point will the facts be fleshed out, as well as
the Bank's diligence in investigating the facts before filing the
counterclaim. Indeed, an evidentiary hearing might be necessary
depending on how the facts develop and the need to make credibility
determinations. The upshot is that the motion is premature as to
the factual basis for the counterclaim. The motion is terminated
without prejudice as to that aspect.
With regard to a reasonable basis in law, because the counterclaim
has survived the motion to dismiss, at this point, Judge Chang
holds that the claim cannot be deemed to be frivolous. So the
motion is denied as to the argument that there was no reasonable
basis in law for the fraud claim.
III. Conclusion
In light of the foregoing, Judge Chang granted in part Anthony's
motion to dismiss (as to the final four phone calls) and denied in
part (as to the first two calls). The motion for sanctions is
denied in part and terminated without prejudice in part.
A full-text copy of the Court's March 30, 2022 Order is available
at https://tinyurl.com/2p9fnur5 from Leagle.com.
FIAT CHRYSLER: Federal Judge Approves Jeep Grand Class Suit
-----------------------------------------------------------
motorbiscuit.com reports that Star Trek actor Anton Yelchin was
allegedly killed in 2016 because the shifter in his Jeep Grand
Cherokee was in Reverse instead of Park. FCA, now Stellantis,
settled out of court in 2018. Now a federal judge has approved a
class-action lawsuit. Many Jeep, Dodge, and Chrysler vehicles had
the controversial Monostable shifting mechanism.
Which Jeep and Dodge models had Monostable shifters?
Jeep Grand Cherokee
2015 Jeep Grand Cherokee | Stellantis
The Open Data Institute found "306 incidents of vehicle rollaway
following intended shifts to Park in 2014 to 2015 Jeep Grand
Cherokees" alone. Reports of 68 injuries resulted between the three
brands. The alleged culprit in all of these cases has been the
controversial Monostable shifter. Between 2012 and 2015 FCA used
the shifter for eight-speed automatic transmissions.
The class-action lawsuit seeks to determine if FCA knew about the
problems but chose to continue production, according to Mopar
Insiders. Some of the conclusions of legal proceedings included
"confusing to use" and "difficult." The National Highway Traffic
Safety Administration forced a recall in 2016 to address some of
the issues it was getting reports about.
How many Jeep and Dodge vehicles had Monostable shifters?
Dodge Charger Monostable shifter
2014 Dodge Charger Monostable shifter | Stellantis
A software update was provided by FCA for over 11 million cars and
SUVs. These included 2012 to 2014 Dodge Chargers, 2012 to 2014
Chrysler 300 sedans, and 2014 to 2015 Jeep Grand Cherokees. FCA
said that this software update would fix the problems outlined by
the NHTSA.
The NHTSA's engineering analysis of the software fix wasn't too
cheery. "If the driver's door is opened when the gearshift is not
in Park, a chime sounds, and a message is displayed on the EVIC to
warn the driver," it stated. "In addition, the engine Start/Stop
push-button control logic does not permit normal engine shut-off
when the transmission is not in Park.
"This logic may provide feedback to drivers who attempt to turn the
engine off when the transmission is not in Park. However, this
function does not protect drivers who intentionally leave the
engine running or drivers who do not recognize that the engine
continues to run after an attempted shut-off."
What were the details of Anton Yelchin's death?
2014 Dodge Charger
2014 Dodge Charger Monostable shifter | Stellantis
In the case of Yelchin's death, reporting said he stopped in his
Los Angeles driveway to get his mail. In the process, he failed to
shift his Jeep Grand Cherokee into the Park position. The Jeep
rolled down his driveway and crushed him.
When he didn't show up for rehearsal, friends went to his house. He
was found dead, positioned between his Jeep and a driveway gate
pillar, around midnight. Investigators discovered the Jeep's
Monostable shifter was still in the Reverse position. ZF
Friedrichshafen AG manufactured the mechanism.
This initial trial will focus on if there are actually flaws in the
shift mechanism. It will not address liability by FCA for costs of
victims relative to injuries, damage, and other expenses. The
lawsuit trial starts September 6 in the Eastern District of
Michigan U.S. Court. [GN]
GENWORTH LIFE: Brighton's Class Certification Bid Tossed as Moot
----------------------------------------------------------------
In the class action lawsuit captioned as BRIGHTON TRUSTEES, LLC, et
al., v. GENWORTH LIFE AND ANNUITY INSURANCE COMPANY, Case No.
3:20-cv-00240-DJN (E.D. Va.), the Hon. Judge David J. Novak entered
an order denying as moot motion for class certification.
Further, the Court hereby converts the in-person certification
hearing to a telephonic status hearing on March 29, 3:00 p.m., to
set a schedule for the settlement approval process.
Genworth Life is a stock life insurance company.
A copy of the Court's order dated March 28, 2022 is available from
PacerMonitor.com at https://bit.ly/3OeHQrI at no extra charge.[CC]
INTERACTIVE BROKERS: Batchelar Seeks Leave to File Complaint
------------------------------------------------------------
In the class action lawsuit captioned as ROBERT SCOTT BATCHELAR, v.
INTERACTIVE BROKERS, LLC, INTERACTIVE BROKERS GROUP, INC., and
THOMAS A. FRANK, Case No. 3:15-cv-01836-AWT (D. Conn.), the
Plaintiff asks the Court to enter an order under Federal Rule of
Civil Procedure 15 and 16 and Local Rule 7(f) for leave of Court to
file his Third Amended Complaint.
This motion is made to provide greater specificity in support of
his request for an award of attorney fees and costs, which was
included in the Prayer for Relief in the Second Amended Complaint.
On March 18, 2022, Plaintiff served Defendants with Plaintiff’s
Motion for Class Certification.
A copy of the Plaintiff's motion dated March 25, 2022 is available
from PacerMonitor.com at https://bit.ly/3EgC4RW at no extra
charge.[CC]
The Plaintiff is represented by:
Gary N. Reger, Esq.
ORGAIN, BELL AND TUCKER, LLP
207 San Jacinto Blvd., Suite 301
Austin, TX 78701
Telephone: (512) 861-0441
E-mail: gnr@obt.com
- and -
L. DeWayne Layfield, Esq.
LAW OFFICE OF L. DEWAYNE LAYFIELD, PLLC
P.O. Box 3829
Beaumont, TX 77704
Telephone: (409) 832-1891
E-mail: dewayne@layfieldlaw.com
- and -
William M. Bloss, Esq.
Christopher M. Mattei, Esq.
KOSKOFF, KOSKOFF & BIEDER, P.C.
350 FAIRFIELD AVENUE
BRIDGEPORT, CT 06604
Telephone: (203) 336-4421
Facsimile: (203) 368-3244
E-mail: bbloss@koskoff.com
cmattei@koskoff.com
JUSTICEWORKS YOUTHCARE: Shopp Seeks to Certify Collective Action
----------------------------------------------------------------
In the class action lawsuit captioned as CAITLAN SHOOP,
individually and on behalf of all others similarly situated, v.
JUSTICEWORKS YOUTHCARE, INC., a Pennsylvania Corporation, Case No.
2:21-cv-00732-MJH (W.D. Pa.), the Plaintiff asks the Court to enter
an order:
1. certifying case as collective action for purposes of
notice and discovery;
2. directing JusticeWorks to produce the contact information
for each putative collective member within 10 days of the
Court's order;
3. directing that the judicial notice be sent to all putative
collective members;
4. approving the proposed notice and consent forms;
5. authorizing a 60-day notice period for putative collective
members to join the case;
6. directing the mailing, e-mailing, and text messaging of
notice, along with a reminder notice; and
7. permitting the Plaintiff's counsel to contact by
telephone those putative collective members whose contact
information is not valid.
JusticeWorks contracts with state and local governments to provide
in-home social services, getting paid on an hourly basis for each
"billable" hour of "Direct Contact" services performed by its
Family Resource Specialists (FRSs).
JusticeWorks' full-time FRSs were assigned about 30 hours of
"Direct Contact" each week, leaving only 10 hours each week for
"non-billable" work, like travel to/from every in-home visit or the
extensive documentation that was required after each visit or for
each court report. It's plain to see this isn't a job that can be
done in a 40-hour workweek. The FRSs were working well over 40
hours each week -- normally at least 45-55 hours --and not getting
paid for all overtime hours, the lawsuit says.
Naturally, JusticeWorks views any hour of FRS work that it can't
bill back to the government as a loss. To minimize those
"non-billable" hours, JusticeWorks set up a de facto system that
FRSs were instructed to record billable time, but not all time
spent on non-billable job duties -- mainly documentation and
travel. JusticeWorks' recording and pay scheme ensured that its
FRSs were not paid the overtime wages they were entitled to under
federal law. That uniform practice flagrantly violates the FLSA,
the lawsuit adds.
A copy of the Plaintiff's motion to certify class dated March 28,
2022 is available from PacerMonitor.com at https://bit.ly/3vnlXhd
at no extra charge.[CC]
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
- and -
Travis Hedgpeth, Esq.
THE HEDGPETH LAW FIRM, PC
3050 Post Oak Blvd., Ste. 510
Houston, TX 77056
Telephone: (281) 572-0727
E-mail: travis@hedgpethlaw.com
- and -
Jack Siegel, Esq.
Stacy W. Thomsen, Esq.
SIEGEL LAW GROUP PLLC
4925 Greenville, Ste. 5009
Dallas, TX 75206
Telephone: (214) 790-4454
E-mail: jack@siegellawgroup.biz
stacy@siegellawgroup.biz
- and -
Joshua Geist, Esq.
GOODRICH & GEIST, P.C.
3634 California Ave.
Pittsburgh, PA 15212
Telephone: (412) 766-1455
Facsimile: (412) 766-0300
E-mail: josh@goodrichandgeist.com
L'OREAL USA: Waterproof Mascara Products Contain PFAS, Vega Says
----------------------------------------------------------------
REBECCA VEGA, individually and on behalf of all others similarly
situated, Plaintiff v. L'OREAL USA, INC., Defendant, Case No.
2:22-cv-02049 (D.N.J., April 8, 2022) alleges that the Defendant
failed to disclose to consumers, including Plaintiff, that its
waterproof mascara products contain per and polyfluoroalkyl
substances, despite the fact that L'Oreal knew or should have known
that this information is material to consumers.
According to the complaint, L'Oreal represented that its waterproof
mascaras were safe, effective, high quality, and appropriate for
use on consumers' eyelashes. However, what L'Oreal did not tell
consumers is that PFAS, which can have adverse effects on humans
and can bioaccumulate in human's bodies, are present in detectable
amounts in its waterproof mascaras that even very low levels of
PFAS can be toxic to humans.
Had Plaintiff and the putative Class known that L'Oreal's
waterproof mascara products contained PFAS, they would not have
purchased the products and/or would have paid less for them, says
the suit.
L'Oreal USA, Inc. manufactures and markets cosmetic products.[BN]
The Plaintiff is represented by:
Christopher A. Seeger, Esq.
Jeffrey S. Grand, Esq.
Christopher L. Ayers, Esq.
SEEGER WEISS LLP
55 Challenger Road, 6th Floor
Ridgefield Park, NJ 07660
Telephone: (973) 639-9100
Facsimile: (973) 679-8656
E-mail: cseeger@seegerweiss.com
jgrand@seegerweiss.com
cayers@seegerweiss.com
LAKEVIEW LOAN: Texas Court Certifies Two Classes in Williams Suit
-----------------------------------------------------------------
In the case, URSULA N. WILLIAMS, Plaintiffs v. LAKEVIEW LOAN
SERVICING LLC and LOANCARE LLC, Defendants, Civil Action No.
4:20-CV-01900 (S.D. Tex.), Judge Charles Eskridge of the U.S.
District Court for the Southern District of Texas, Houston
Division, granted Williams' motion for class certification as to
the Texas Debt Collection Act claim as modified, and denied the
class certification as to the breach of contract claim without
prejudice to refiling.
I. Background
Plaintiff Williams obtained a Federal Housing Authority-insured
mortgage in 2010 for property located in Bryan, Texas. Her mortgage
is serviced by Defendant Lakeview and subserviced by Defendant
LoanCare.
LoanCare allows mortgagors to make payments on their loans via
mail, phone (with a live agent or an automated system), and website
portal. Each option except payment by mail requires the mortgagor
to remit a pay-to-pay fee. Williams preferred to pay by automated
phone system. And LoanCare charged her a $12 fee every time she
made such payments. These fees totaled $480 between 2017 and 2020.
Williams brought the action on May 29, 2020. She contends that
these pay-to-pay fees breached her mortgage contract and violated
the Texas Debt Collection Act.
The Defendants refunded Williams $456 upon the outset of the
litigation. LoanCare filed a motion to dismiss. The Plaintiff
voluntarily dismissed the breach of contract claim against
LoanCare, and the motion was denied as to the TDCA claim. The case
was then transferred to Judge Sam S. Sheldon for full pretrial
management pursuant to 28 USC Section 636(b)(1)(A) and (B) and Rule
72 of the Federal Rules of Civil Procedure.
Williams now seeks certification of two classes:
a. Lakeview Class: All persons in the United States (1) with
an FHA-insured mortgage securing a property located in the State of
Texas (2) originated or serviced by Lakeview and (3) subserviced by
LoanCare and (4) who paid one or more Pay-to-Pay fee to LoanCare
during the applicable statute of limitations period through the
date a class is certified.
b. LoanCare Class: All persons in the United States (1) with
an FHA-insured mortgage securing a property located in the State of
Texas (2) serviced or subserviced by LoanCare and (3) who paid one
or more Pay-to-Pay fee to LoanCare during the applicable statute of
limitations period through the date a class is certified.
Judge Sheldon issued a Memorandum and Recommendation on Feb. 8,
2022, recommending that class certification as to the breach of
contract claim be denied without prejudice to refiling, and that
class certification as to the TDCA claim be granted as modified.
The Defendants filed timely objections.
II. Analysis
A. Objections as to commonality
The mortgages of all putative class members contain a clause
stating that "Lender may collect fees and charges authorized by the
Secretary" of the Department of Housing and Urban Development
(referred to as the fee clause). The Defendants acknowledge this,
but they object to the finding that the mortgages at issue aren't
materially different. Specifically, they contend that there are two
categories of mortgages at issue, each with different terms. And
they suggest that these differences vitiate commonality.
First, Judge Eskridge finds that category one mortgages contain an
additional clause that states, "Lender may not charge fees that are
expressly prohibited by this Security Instrument or by Applicable
Law." He finds additional provision isn't material to that
dispute.
Second, category one mortgages contain a clause that states, "All
rights and obligations contained in this Security Instrument are
subject to any requirements and limitations of Applicable Law.
Applicable Law might explicitly or implicitly allow the parties to
agree by contract or it might be silent, but such silence will not
be construed as a prohibition against agreement by contract." Judge
Eskridge says, it true this language differs. But both clauses go
to the affirmative defense that putative class members entered
point-of-sale contracts when they remitted the pay-to-pay fees. The
clauses thus don't affect central issues of the suit, such as
whether the TDCA applies, whether the fee clause expressly
authorized pay-to-pay fees, or even whether the TDCA allows for
point-of-sale contracts
Third, category one mortgages contain a provision that states,
"Neither Borrower nor Lender may commence, join, or be joined to
any judicial action (as either an individual litigant or the member
of a class) that arises from the other party's actions pursuant to
the Security Instrument or that alleges that the other party has
breached any provision of, or any duty owed by reason of, this
Security Instrument, until such Borrower or Lender has notified the
other party of such alleged breach and afforded the other party
hereto a reasonable period after the giving of such notice to take
corrective action." But, according to Judge Eskridge this provision
doesn't ultimately affect the merits of their claims once they
comply.
The Defendants raise two additional objections related to
commonality: That the Magistrate Judge failed to adequately address
the effect of potential third party modifications and that the
differences in payment methods don't pose a barrier to class
certification.
Judge Eskridge holds that though a modification could theoretically
affect recovery by individual mortgagors, this potential doesn't
undermine the common legal questions that arise from the inclusion
of the fee clause in all mortgages at issue. He also finds that the
issue goes to the affirmative defense that mortgagors entered
point-of-sale contracts when paying fees. It doesn't affect the
core legal theories asserted by Williams and the putative class
members.
B. Objections as to predominance
First, Defendants object that the Memorandum and Recommendation
"errs in assuming each borrower has 'consumer debt.'" Second, they
object to the finding that an interpretation of the debt collection
requirement of the TDCA can be determined on a class-wide basis.
Third, object to the finding that the voluntary-payment doctrine is
inapplicable. Fourth, the Defendants object to the finding that the
"Plaintiff's proposed method of calculating damages based on their
own spreadsheet does not preclude certification, even if some
individual issues are involved." Fifth, the Defendants contend that
the Memorandum and Recommendation "ignores bankruptcy issues."
Finally, the Defendants object that the Memorandum and
Recommendation "fails to consider varying contract terms,
individual modification, and notice-and-cure requirements, as well
as waiver, mitigation of damages, and release."
Judge Eskridge holds that (i) every borrower of an FHA-insured
mortgage necessarily uses the loan proceeds for household purposes;
(ii) though servicing isn't "synonymous with" collecting, whether
LoanCare engaged in servicing or collecting when borrowers remitted
the pay-to-pay fees is a class-wide question of law; (iii) the
voluntary-payment rule would not apply to situations in which the
Legislature or common law has provided a right of recovery even
though payment is voluntary; (iv) the Defendants don't articulate
how these possibilities affect the ultimate recommendation that the
class be certified; (v) bankruptcy is not a unique issue to the
class; and (vi) the common question of law -- namely, the legality
of the pay-to-pay fees -- predominates over these individualized
issues.
C. Objections as to typicality
First, the Defendants object to the finding that the $456 refund to
Williams doesn't make her atypical. Second, they object that the
Memorandum and Recommendation "failed to address the cumulative
impact" of differences between the claim brought by Williams and
those of other putative class members.
Judge Eskridge finds that the proffered $456 neither moots
Williams' claims nor undermines her position as lead plaintiff. He
also finds that the claims by Williams and those by putative class
members are based on the same legal theory and derive from a common
nucleus of fact. Williams has thus demonstrated that her claims are
"similar enough to the claims of the class so that" she "will
adequately represent them."
D. Objections as to adequacy of representation
The Defendants object that the Memorandum and Recommendation
"erroneously credited the Plaintiff's conclusory, generic
declaration over her sworn, contrary testimony." Such general
objections touch the outer bounds of Rule 72. Regardless, Judge
Eskridge holds that the Memorandum and Recommendation adequately
addressed each concern raised in the Defendants' response brief
(which were similarly generic), appropriately giving weight to all
evidence presented. To summarize the findings of the Magistrate
Judge, Williams is actively involved, counsel is experienced in
consumer class actions, and potential conflicts with ongoing class
actions in which counsel is involved are minimal.
e. Objections as to superiority
The Defendants object on five different grounds to the finding that
"a class action is superior to other available methods for fairly
and efficiently adjudicating the controversy." First, they argue
notice-and-cure provisions are a superior dispute resolution
method. Second, they contend that "fear of underenforcement is no
justification for class certification." Third, they contend that
the Memorandum and Recommendation improperly rejected "no suits" as
an acceptable or preferable alternative. Fourth, they object to the
finding that "managing the class action does not appear unusually
difficult." Fifth, the Defendants argue proper regulation is
superior to certification.
Judge Eskridge holds that none of their objections in this regard
have merit. To the contrary, the relatively small amount of damages
at issue for each putative class member, the number of putative
class members with similar claims, and the common questions of law
all suggest that a class action is a superior means of adjudicating
this dispute.
III. Conclusion
Judge Eskridge overruled the objections by the Defendants. He
adopted the Memorandum and Recommendation by the Magistrate Judge
as the Memorandum and Order of the Court.
Judge Eskridge granted in part and denied in part the motion by
Plaintiff Williams for class certification. As to certification of
the Texas Debt Collection Act claim, he granted it as modified. As
to certification of the breach of contract claim, he denied without
prejudice to refiling.
The following classes are certified:
a. Lakeview Class: All persons in the United States (1) with an
FHA-insured mortgage executed on or after March 1, 1990, securing a
property located in the State of Texas (2) originated or serviced
by Lakeview Loan Servicing LLC and (3) subserviced by LoanCare LLC
and (4) who paid one or more pay-to-pay fee to LoanCare during the
applicable statute of limitations period through March 30, 2022.
b. LoanCare Class: All persons in the United States (1) with an
FHA-insured mortgage executed on or after March 1, 1990, securing a
property located in the State of Texas (2) serviced or subserviced
by LoanCare LLC and (3) who paid one or more pay-to-pay fee to
Loancare during the applicable statute of limitations period
through March 30, 2022.
A full-text copy of the Court's March 30, 2022 Order is available
at https://tinyurl.com/yk3s3kyp from Leagle.com.
LOUIS VUITTON: Theriot Sues Over Illegal Biometrics Data Collection
-------------------------------------------------------------------
PAULA THERIOT, individually and on behalf of all others similarly
situated, Plaintiff v. LOUIS VUITTON NORTH AMERICA, INC.,
Defendant, Case No. 1:22-cv-02944 (S.D.N.Y., April 8, 2022) arises
from the Defendant's conduct of collecting and storing or
facilitating the storage of biometric information or biometric
identifiers without disclosure to or consent of any of the
consumers, including Plaintiff, in violation of the Biometric
Information Privacy Act.
According to the complaint, the Defendant collects detailed and
sensitive biometric identifiers and information, including complete
facial scans, of its users through the Virtual Try-On tool, and it
does this without first obtaining their consent, or informing them
that this data is being collected. The Defendant further fails to
provide users of a specific purpose for the collection of their
biometric information or biometric identifiers, or a schedule
setting out the length of time during which that biometric
information or biometric identifiers will be collected, stored,
used, or will be destroyed, adds the complaint.
Ms. Theriot used LVNA's website four times between November 3, 2020
to December 19, 2021, to try on various different pairs of
sunglasses, spending approximately one hour on LVNA's website each
time that she used it.
Louis Vuitton is a global luxury brand that markets and sells a
variety of high-end products, ranging from luxury trunks and
leather goods to ready-to-wear shoes, watches, jewelry,
accessories, and -- pertinent to this litigation -- eyewear.[BN]
The Plaintiff is represented by:
David A. Straite, Esq.
DICELLO LEVITT GUTZLER LLC
One Grand Central Place
60 East 42nd Street, Suite 2400
New York, NY 10165
Telephone: (646) 933-1000
E-mail: dstraite@dicellolevitt.com
- and -
Adam J. Levitt, Esq.
Amy E. Keller, Esq.
James A. Ulwick, Esq.
Sharon Cruz, Esq.
DICELLO LEVITT GUTZLER LLC
Ten North Dearborn Street, Sixth Floor
Chicago, IL 60602
Telephone: (312) 214-7900
E-mail: alevitt@dicellolevitt.com
akeller@dicellolevitt.com
julwick@dicellolevitt.com
scruz@dicellolevitt.com
- and -
James J. Pizzirusso, Esq.
HAUSFELD LLP
888 16th Street, NW, Suite 300
Washington, D.C. 20006
Telephone: (202) 540-7200
E-mail: jpizzirusso@hausfeld.com
- and -
Steven M. Nathan, Esq.
HAUSFELD LLP
33 Whitehall St., 14th Floor
New York, NY 10004
Telephone: (646) 357-1100
E-mail: snathan@hausfeld.com
MAJERLE MGMT: Allen's Bid to Reconsider Dismissal Order Granted
---------------------------------------------------------------
In the case, STEWART ALLEN, Plaintiff v. MAJERLE MANAGEMENT, INC.,
et al., Defendants, Civil No. 21-950 PJM (D. Md.), Judge Peter J.
Messitte of the U.S. District Court for the District of Maryland
granted Allen's Motion for Reconsideration of the Court's Oct. 28,
2021 Order granting in part and denying in part the Defendants'
Motions to Dismiss.
I. Background
Mr. Allen filed the suit against Majerle Management, Inc. ("MMI")
and Cameron Mericle, P.A., alleging unfair debt collection
practices in violation of the Maryland Consumer Debt Collection Act
("MCDCA"), Md. Code Comm. L. Section 14-201, et seq., the Maryland
Consumer Protection Act ("MCPA"), Md. Code. Comm. L. Section
13-101, et seq., and the federal Fair Debt Collections Practices
Act ("FDCPA"), 15 U.S.C. Section 1692, et seq.
Allen, a resident of Greenbelt, Maryland, filed this putative class
action to challenge Defendants' practice of charging and collecting
late fees from members of homeowners' associations ("HOAs").
Defendant MMI is a property management company which administers
affairs for and on behalf of HOAs, including the managing including
managing the issuing and collection of bills, late fees, and costs.
One of its clients is the Greenbook Village HOA. Greenbook hired
Cameron Mericle as its collection law firm.
On Feb. 1, 2018, MMI began charging a monthly "collection agency
fee" of $8.50 to its residents, including Allen. The fee was
assessed to homeowners if they were late in their HOA payments.
According to Allen, the fee does not reflect actual expenses caused
by late payment. Cameron Mericle included the late fee in its
collection letters to HOA members.
In Count II, Allen alleges violations of MCDCA against both
Defendants. Sections 14-202(8) and (11) of MCDCA provide: "In
collecting or attempting to collect an alleged debt a collector may
not: (8) Claim, attempt, or threaten to enforce a right with
knowledge that the right does not exist; (11) Engage in any conduct
that violates Sections 804 through 812 of the federal Fair Debt
Collection Practices Act."
In their motions to dismiss, the Defendants argued that MCDCA
claims predicated on violations of FDCPA were subject to the
one-year statute of limitations set forth by the FDCPA and not
Maryland's three-year statute of limitations. Allen disagreed,
submitting that the applicable limitations period for MCDCA
claims—even those predicated on violations of FDCPA -- is three
years. The Court found the Defendants more persuasive and granted
their motions to dismiss violations of MCDCA that occurred outside
of a one-year period, that is, any violations occurring prior to
Feb. 24, 2020.
Allen now moves for reconsideration, directing the Court to a
recent Fourth Circuit decision, Alexander v. Carrington Mortgage
Services, LLC, 23 F.4th 370, 2022 WL 164018 (Jan. 19, 2022).
According to Allen, the decision is contrary to the Court's holding
that FDCPA's one-year statute of limitations applies to violations
of MCDCA which are predicated on conduct that violates FDCPA. The
Defendants posit that Alexander is inapposite because it involved a
definitional provision in the MCDCA, rather than a limitations
provision. In addition, they argue that Allen's Motion for
Reconsideration is untimely.
II. Discussion
Allen asks the Court to reconsider its dismissal of MCDCA claims
occurring prior to Feb. 24, 2022 given the Fourth Circuit's
published decision in Alexander v. Carrington Mortgage Services,
LLC, 23 F.4th 370 (2022). In Alexander, consumers brought putative
class action against mortgage servicer, alleging servicer violated
MCDCA and MCPA by charging a $5 convenience fee to borrowers who
paid monthly mortgage bills online or by phone. Like Allen, the
consumers brought claims under Section 14-202(11) of the MCDCA,
which prohibits "collectors" from "engaging in any conduct that
violates Sections 804 through 812 of the federal Fair Debt
Collection Practices Act." The Fourth Circuit's decision, in part,
turned on whether the Alexander defendant was a "collector" given
that the MCDCA and FDCPA set forth different definitions of
"collector."
In light of the Fourth Circuit's decision in Alexander, Judge
Messitte finds that there has been a change in applicable law
sufficient to support reconsideration. The decision clearly holds
that the MCDCA does not carry with it all provisions of the FDCPA,
and in fact notes that it does not incorporate the FDCPA's remedial
structure as to limitations. Although the Defendants attempt to
characterize Alexander as irrelevant and not binding on the Court,
the court's reasoning clearly indicates that the MCDCA does not
incorporate all of the provisions of the FDCPA and applies more
broadly than the FDCPA.
III. Conclusion
Accordingly, Allen's Motion for Reconsideration is granted. The
Court's Oct. 28, 2021 Order is amended to allow Allen's MCDCA
claims brought under Section 14-202(11) that arose within
Maryland's three-year limitations period, i.e., those that arose
after Feb. 24, 2018.
A separate Order will be issued.
A full-text copy of the Court's March 30, 2022 Memorandum Opinion
is available at https://tinyurl.com/2p8hddbp from Leagle.com.
MANAGEMENT & TRAINING: Medford Seeks Unpaid OT Wages
----------------------------------------------------
MARTINA MEDFORD, on behalf of herself and on behalf of all others
similarly situated, Plaintiff v. MANAGEMENT & TRAINING CORPORATION,
Defendant, Case No. 1:22-cv-00056-HCN (D. Utah, April 8, 2022)
challenges Defendant's long standing policy of failing to properly
compensate its non-exempt detention officers for all hours worked
in violation of the Fair Labor Standards Act.
The Plaintiff worked as an hourly, non-exempt detention officer for
Defendant at the Bluebonnet Detention Center in Texas from November
2019 to April 2020. She was allegedly denied full compensation by
the Defendant for her overtime hours.
Management and Training Corporation is a company that provides
private prison services across the U.S.[BN]
The Plaintiff is represented by:
Don J. Foty, Esq.
HODGES & FOTY, L.L.P.
4409 Montrose Blvd, Ste. 200
Houston, TX 77006
Telephone: (713) 523-0001
Facsimile: (713) 523-1116
E-mail: dfoty@hftrialfirm.com
- and -
Kathryn Harstad, Esq.
STRINDBERG SCHOLNICK BIRCH HALLAM
HARSTAD THORNE
40 South 600 East
Salt Lake City, UT 84102
Telephone: (801) 359-4169
E-mail: kass@utahjobjustice.com
MERCY HEALTH: Peck Seeks Conditional Collective Certification
-------------------------------------------------------------
In the class action lawsuit captioned as DANIELLE PECK individually
and on behalf of all others similarly situated, v. MERCY HEALTH,
MERCY HEALTH FOUNDATION, and MHM SUPPORT SERVICES, Case No.
4:21-cv-00834-RLW (E.D. Mo.), the Plaintiff asks the Court to enter
an order pursuant to Section 16(b) of the Fair Labor Standards Act
(FLSA):
1. Conditionally certifying a FLSA Collective, defined as:
"All hourly-paid employees of the Defendants who were or
are subject to the automatic meal break deduction policies
at any time on or after three years prior to the date on
which the Court approves collective certification";
2. Directing the Defendants to identify all putative members
of the Collective by providing their names, last known
addresses, dates and locations of employment, job titles,
phone numbers, and e-mail addresses, in an electronic and
importable format such as an unrestricted Excel
spreadsheet, within fourteen (14) calendar days of the
entry of this Order;
3. Approving Plaintiffs' proposed "Notice of Right to Join
Lawsuit" and "Consent to Join Lawsuit" Form and proposed
language of the email and text message to be sent to the
putative members of the Collective;
4. Authorizing the Plaintiffs' Counsel to direct a claims
administrator to maintain a case website displaying the
text of the approved "Notice of Right to Join Lawsuit" and
"Consent to Join Lawsuit" forms, through which members of
the Collective may sign their Consent to Join forms
electronically;
5. Authorizing the Plaintiffs' counsel to disseminate the
approved notice to the putative members of the Collective
via U.S. Mail, e-mail and text message, and to send a
reminder notice via e-mail and text message halfway
through the notice period; and
6. Affording the putative members of the Collective 60 days
from the date the notice is issued to join this case by
completing either paper or electronic consent forms.
Mercy Health is a Catholic health care system with locations in
Ohio and Kentucky.
A copy of the Plaintiff's motion to certify class dated March 28,
2022 is available from PacerMonitor.com at https://bit.ly/3KJMJ9Y
at no extra charge.[CC]
The Plaintiff is represented by:
Nicholas Conlon, Esq.
Jason T. Brown, Esq.
Eric Sands, Esq.
BROWN, LLC
111 Town Square, Suite 400
Jersey City, NJ 07310
Telephone: (877) 561-0000
Facsimile: (855) 582-5297
E-mail: nicholasconlon@jtblawgroup.com
jtb@jtblawgroup.com
eric.sands@jtblawgroup.com
- and -
Anthony M. Pezzani, Esq.
Emily W. Kalla, Esq.
ENGELMEYER & PEZZANI, LLC
13321 N. Outer Forty Road, Suite 300
Chesterfield, MO 63017
Telephone: (636) 532-9933
Facsimile: (314) 863-7793
E-mail: tony@epfirm.com
emily@epfirm.com
MOBILE AUTO: Restrepo Sues Over Unpaid Wages
--------------------------------------------
JUAN RESTREPO, and other similarly situated individuals, Plaintiff
v. MOBILE AUTO REPAIR, INC., RAYMOND TORRES, and ESPERANZA TORRES,
Defendants, Case No. 1:22-cv-21042 (S.D. Fla., April 7, 2022) is a
class action seeking to recover money damages for unpaid wages
under the Fair Labor Standards Act.
The Plaintiff was employed by the Defendants as a roadside
assistance worker from approximately October 6, 2016 through
January 7, 2022. He performs the same or similar duties as that of
those other similarly situated road assistance workers whom the
Plaintiff observed working in excess of 40 hours per week without
overtime compensation.
Mobile Auto Repair, Inc. is a Florida-based auto repair service
provider.[BN]
The Plaintiff is represented by:
Aron Smukler, Esq.
R. Martin Saenz, Esq.
SAENZ & ANDERSON, PLLC
20900 NE 30th Avenue, Ste. 800
Aventura, FL 33180
Telephone: (305) 503-5131
Facsimile: (888) 270-5549
E-mail: asmukler@saenzanderson.com
msaenz@saenzanderson.com
MY WIRELESS: Faces Tadle Suit Over Illegal Employment Practices
---------------------------------------------------------------
JONATHAN TADLE, as an individual and on behalf of all others
similarly situated, Plaintiff v. MY WIRELESS GLA, INC., a
California corporation; and DOES 1 through 50, inclusive,
Defendants, Case No. 22STCV12006 (Cal. Super., Los Angeles Cty.,
April 8, 2022) challenges Defendants' systemic illegal employment
practices resulting in violations of the California Labor Code by
failing to provide accurate and complete wage statements to
Plaintiff and similarly situated employees.
Mr. Tadle was hired by the Defendant as sales associate/store
manager from January 14, 2021 to November 13, 2021.
My Wireless GLA, Inc., a California corporation, operates wireless
telephone services throughout the State of California, including in
Los Angeles County.[BN]
The Plaintiff is represented by:
Edward W. Choi, Esq.
Paul M. Yi, Esq.
LAW OFFICES OF CHOI & ASSOCIATES, APLC
515 S. Figueroa St., Suite 1250
Los Angeles, CA 90071
Telephone: (213) 381-1515
Facsimile: (213) 465-4885
E-mail: edward.choi@choiandassociates.com
paul.yi@choiandassociates.com
NATIONSTAR MORTGAGE: McAdams Can't Compel Responses to RFP No. 17
-----------------------------------------------------------------
In the case, PIA McADAMS, on behalf of herself and those similarly
situated, Plaintiff v. NATIONSTAR MORTGAGE LLC AND DOES 1-10,
Defendants, Case No. 20CV2202-L (BLM) (S.D. Cal.), Magistrate Judge
Barbara L. Major of the U.S. District Court for the Southern
District of California denied the Plaintiff's March 14, 2022 Motion
to Compel Discovery Responses.
I. Background
The lawsuit is a putative consumer class action where the Plaintiff
alleges that the Defendant falsely led Plaintiff to believe that it
was processing the Plaintiff's loan modification application
instead of going through with the foreclosure process on her home.
This deceptive and illegal practice, known as "dual tracking," is
the basis for all of the Plaintiff's claims.
The Plaintiff seeks to represent a class consisting of "all persons
whose California owner-occupied property had a first-lien mortgage
held by Nationstar Mortgage, LLC, doing business as Mr. Cooper, and
were foreclosed on by Nationstar after having submitted a loan
modification application, on Oct. 1, 2017 and until notice is
disseminated to the Class."
On Nov. 19, 2021, the Plaintiff served her First Set of Requests
for Production of Documents ("RFP") on Defendant Nationstar
Mortgage, LLC. After the parties agreed on an extension of time to
respond, the Defendant served objections to the RFPs on Jan. 10,
2022.
The parties met and conferred on Jan. 18, 2022 regarding the
Defendant's discovery responses. The Defendant agreed to supplement
its production for RFP No. 17, but would not agree to produce the
names and contact information of the putative class members. On
Feb. 28, 2022, the Defendant supplemented its responses to the
Plaintiff's First Set of RFPs, including a spreadsheet with
potential class members' "(1) loan number; (2) original loan
amount; (3) unpaid balance of loan at time of foreclosure sale; (4)
property state; (5) foreclosure sale date; (6) loan modification
application submitted date; and (7) loan modification application
decision date."
The parties met and conferred again on March 4, 2022, but could not
reach an agreement. On March 4, 2022, the parties jointly contacted
the Court regarding the Defendant's response to RFP No. 17. In
regard to the dispute, the Court set a briefing schedule. The
parties timely filed their pleadings and Reply.
II. Discussion
The Plaintiff seeks an order from the Court compelling the
Defendant to supplement its responses to RFP No. 17 and produce the
names and contact information of the putative class members. RFP
No. 17 requests "Document sufficient to identify all persons in
California who submitted a loss mitigation application to you from
Oct. 1, 2017 until the present and then subsequently had their home
foreclosed."
The Defendant contends that the Court should deny the Plaintiff's
motion because (1) the Plaintiff has failed to make the requisite
showing to permit this type of discovery; (2) the Plaintiff's
request seeks information that is not relevant to the parties'
claims and defenses at this juncture in the case given that no
class has been certified and Nationstar's dipositive Motion for
Judgment on the Pleadings is currently pending; and (3) the phone
numbers of the 1,280 loan account holders listed in Nationstar's
list should not be compelled based on the right of privacy.
The Plaintiff replies that the Court should exercise its discretion
and not require the Plaintiff to make a prima facie showing at this
stage, but notes that regardless, she has done so. She also notes
that while her FAC "adequately alleges that the requirements for
class certification are satisfied," the desired information would
aid her in demonstrating the requirements of Fed. R. Civ. P. 23.
The Plaintiff argues that the class member contact information is
relevant now because the information will give her the opportunity
to substantiate her class allegations and rebut Defendant's
opposition to class certification. Finally, she argues that any
privacy concerns are alleviated by the protective order that has
been entered in the case.
Judge Major finds that the Plaintiff's discovery request is
overbroad and likely includes information with little if any
relevance. The Plaintiff makes no effort to narrow the scope of her
request by including terms or facts that would indicate possible
HBOR or fraud claims. In addition, the Plaintiff provides no
evidence or explanation in support of her position that some, let
alone a significant number of the 1,282 people "identified" in the
Defendant's spreadsheet, have viable fraud or HBOR claims. At this
stage of the litigation, producing the personal contact information
for the 1,282 people is not proportional to the needs of the case.
Additionally, Judge Major holds that the Plaintiff relies on
Amaraut v. Sprint/United Mgt. Co., 2020 WL 8024170 (S.D. Cal. Jan.
14, 2020) to support her argument that the contact information is
relevant and necessary "to aid the Plaintiff's theories of
liability, further develop evidence in support of class
certification, and to respond to Nationstar's anticipated
opposition to class certification" and "to have basic informational
access to potential witnesses." Amaraut is distinguishable from the
instant case in two important ways. First, there was no dispute in
Amaraut about the putative class itself. Second, the Amaraut court
focused on the fact that plaintiffs were seeking contact
information for putative class members who were, or were likely to
be, percipient witnesses to the claims alleged in the FLSA case.
Hence, the Plaintiff has not established why this information is
insufficient for her to bring her class certification motion.
The Plaintiff's discovery request is overbroad, seeks likely
irrelevant information, and potentially infringes on the privacy
rights of uninvolved individuals as it seeks personal contact
information for a large number of people who may not have any
interest in or relevant information regarding the dual tracking
claims at issue in the litigation. Judge Major finds that the
Plaintiff's need for the personal contact information at this stage
and "the probability of that information resolving any factual
issue necessary for the determination" of class certification are
low.
Finally, Judge Major holds that the Plaintiff has not provided
evidence making a prima facie showing that the Rule 23 class
requirements are satisfied. She finds that while the Plaintiff
establishes numerosity, by noting there are potentially 1,281 class
members at issue, the Plaintiff provides no evidence of
commonality. Plaintiff merely states that the FAC alleges "that
there are several questions of law and fact common to the class
including whether Nationstar has complied with HBOR." She does not
address the concern that dual tracking claims likely require
particularized reviews of each individual's loan interactions with
the Defendant to understand if there are fraud or HBOR claims. For
similar reasons, the Plaintiff fails to make a prima facie case for
typicality.
Because the Plaintiff has not made a prima facie showing of
commonality or typicality, Judge Major declines to evaluate whether
the Plaintiff has made a prima facie showing of the adequacy
prong.
III. Conclusion
For the reasons she set forth, Judge Major denied the Plaintiff's
motion.
A full-text copy of the Court's April 1, 2022 Order is available at
https://tinyurl.com/msz5b3k4 from Leagle.com.
NETGAIN TECHNOLOGY: S.D. California Tosses Lee Suit With Prejudice
------------------------------------------------------------------
In the case, GERALD S. LEE, individually and on behalf of all
others similarly situated and on behalf of the general public,
Plaintiff v. NETGAIN TECHNOLOGY, LLC, Defendant, Case No.
21cv1144-LL-MSB (S.D. Cal.), Judge Linda Lopez of the U.S. District
Court for the Southern District of California granted Netgain's
motion to dismiss the class action.
Defendant Netgain Technology, LLC ("Netgain") moved to dismiss the
putative class action for lack of personal jurisdiction under
Federal Rule of Civil Procedure 12(b)(2)
I. Background
The Plaintiff alleges that Netgain is a cloud hosting and
information technology services company that provides services to
several organizations in the healthcare and accounting industries
nationwide. CareSouth Carolina, Inc. is one of Netgain's clients
and is a community health center providing a comprehensive set of
services to its patients, from pediatrics to pharmacy to community
outreach. The Plaintiff is a citizen and resident of South
Carolina. As a patient of CareSouth, he was required to provide
Netgain and CareSouth with his personal medical information ("PMI")
with the assurance that such information would be kept safe from
unauthorized access.
On Dec. 3, 2020, cyber criminals infiltrated network servers
belonging to Netgain and CareSouth where sensitive personal and
medical information was being kept unprotected. The cybercriminals
gained access to certain network servers, and Netgain paid a
significant amount of money in exchange for a promise from the
attackers that they would delete the copies of the data that was in
their possession and would not publish, sell or otherwise share the
data.
On May 17, 2021, the Plaintiff received a letter from CareSouth
informing him of "an incident that involved personal information
maintained by our vendor Netgain" in which "some of the servers
that it maintained for CareSouth Carolina were affected as part of
a ransomware attack."
The Plaintiff brings a putative nationwide class action on behalf
of all persons residing in the United States whose PMI was
compromised as a result of the data breach. He also brings a
putative subclass action on behalf of all patients of CareSouth.
The Plaintiff's claims include: (1) negligence; (2) invasion of
privacy; (3) breach of third-party beneficiary contract; (4) breach
of implied contract; (5) breach of confidence; (6) breach of
implied covenant of good faith and fair dealing; (7) violations of
South Carolina Code of Laws, S.C. Stat. Tit. 389, Ch. 5 Sections
10, et seq.; (8) violations of South Carolina Code of Laws, S.C.
Stat. Tit. 39, Ch. 1 Section 90; and (9) for declaratory relief.
II. Discussion
The parties dispute whether the Court has specific jurisdiction
over Netgain. Specific jurisdiction exists where "the defendant's
suit-related conduct creates a substantial connection with the
forum State.
In order for a federal court to exercise specific jurisdiction over
a non-resident defendant: (1) The non-resident defendant must
purposefully direct his activities or consummate some transaction
with the forum or resident thereof; or perform some act by which he
purposefully avails himself of the privilege of conducting
activities in the forum, thereby invoking the benefits and
protections of its laws; (2) the claim must be one which arises out
of or relates to the defendant's forum-related activities; and (3)
the exercise of jurisdiction must comport with fair play and
substantial justice, i.e. it must be reasonable.
A. Purposeful Availment and Direction
A purposeful availment analysis is most often used in suits
sounding in contract while a purposeful direction analysis is most
often used in suits sounding in tort. Both purposeful availment and
purposeful direction ask whether defendants have voluntarily
derived some benefit from their interstate activities such that
they will not be haled into a jurisdiction solely as a result of
'random,' 'fortuitous,' or 'attenuated'
1. Purposeful Direction
In his Complaint, the Plaintiff claims "the Court has personal
jurisdiction over the Defendants because Defendant Netgain conducts
much of its business in and has sufficient minimum contacts with
California." The Plaintiff further claims that "venue is likewise
proper in the District. because Defendant Netgain conducts business
through the District (including promoting, selling, marketing, and
distributing the Netgain brand and services at issue).
In opposition, Netgain argues that the Plaintiff has not shown
purposeful direction because "Netgain only has one satellite office
in California that is staffed by only a few employees, none of whom
provided services to CareSouth" and "Netgain does not store any
data at its California office, including any data associated with
Mr. Lee or CareSouth.
Judge Lopez holds that the Plaintiff does not identify an actual,
physical act in the real world that Netgain did that caused the
data breach. The Plaintiff also does not allege or show, that by
operating the San Diego office, Netgain caused the data breach, or
that Netgain knew that by operating the San Diego office the data
breach would likely occur. Moreover, he essentially admits in his
request for jurisdictional discovery that he does not know whether
the data breach originated in California due to the acts or
omissions of the San Diego office, or whether the San Diego office
had any control of the Plaintiff's or CareSouth's data.
Accordingly, the Plaintiff has not made a prima facie showing of
purposeful direction.
2. Purposeful Availment
By operating an office in San Diego, Netgain has purposefully
availed itself of the privilege of doing business in California.
See Jeong v. Nexo Fin. LLC, No. 21-cv-02392-BLF, 2022 WL 174236, at
*10 (N.D. Cal. Jan. 19, 2022) (uncontradicted allegation that
defendant operated a branch of its business in California is
sufficient to find purposeful availment). In his opposition,
however, the Plaintiff does not recognize: (1) the distinction
between purposeful direction and availment; (2) that each test
typically applies to different types of claims; or (3) that the
Plaintiff's claims appear to sound in both tort and contract.
Moreover, the Plaintiff does not allege that he directly contracted
with Netgain. Nonetheless, to the extent the Plaintiff argues that
Netgain has purposefully availed itself, Judge Lopez holds that the
Plaintiff has made a prima facie showing of purposeful availment,
but only with respect to his contract-based claims.
3. Relatedness
To demonstrate that its claims "arise out" of forum-related
activities, the Plaintiff must show that he would not have suffered
an injury "but for" Netgain's "forum related conduct." The
Plaintiff argues he has made his prima facie case for relatedness
because (1) "Netgain staffs its California office with IT personnel
providing IT services for multiple customers, including California
healthcare providers impacted by the same Data Breach that impacted
Lee and the Nationwide Class Members," and (2) the Plaintiff
"alleges that it was due to these very IT services, including the
Defendant's negligence and data security failures provided to its
customers nationwide (including out of its California office), that
the Data Breach occurred."
As Judge Lopez noted above, however, the Plaintiff acknowledges
that he does not know whether the data breach occurred but for the
acts or omissions of Netgain in, or directed at, California.
Moreover, the Plaintiff's argument does not match his allegations.
Accordingly, he has not made a prima facie showing of relatedness.
4. Reasonableness
Because the Plaintiff cannot satisfy the first two elements of the
specific jurisdiction test, the burden does not shift to Netgain to
show that jurisdiction would be unreasonable. Assuming the
Plaintiff had shown purposeful direction and relatedness, most of
the reasonableness factors would likely weigh in favor of declining
specific jurisdiction over Netgain.
Judge Lopez holds that by allegedly failing to protect CareSouth's
patients' PMI, the extent of Netgain's purposeful injection into
California's affairs is minimal. There is no allegation or
evidence, for example, that Netgain had reason to believe
CareSouth's patients, or former patients, were in California. It
also seems burdensome that Netgain would have to defend against
claims related to a data breach in any state where it had
employees, regardless of whether the data breach was in any way
linked to that state. Furthermore, California's interest in
adjudicating this dispute is not strong given that Plaintiff is
from South Carolina, his claims arise mostly, if not entirely,
under South Carolina law, and arise from a data breach of a
Minnesota company that possessed South Carolina patients' PMI.
South Carolina or Minnesota would clearly be more efficient and
important alternative forums for resolving this controversy.
B. Jurisdictional Discovery
Finally, the Plaintiff argues that "if the Court requires a further
factual showing that the Data Breach would not have occurred but
for Netgain's conduct in the forum state, then it should permit
limited discovery on these narrow issues prior to a preliminary
hearing." The Plaintiff does not argue or allege that any breach
notification letters were sent to anyone in California. His only
allegation specifically related to personal jurisdiction is that
Netgain "conducts much of its business in" California.
Overall, Judge Lopez holds that the Plaintiff's request for
jurisdictional discovery is not based on evidence that the evidence
presented by Netgain is false or inaccurate. Accordingly, his
request for jurisdictional discovery is based on speculation, and
Plaintiff has therefore not met his burden of showing some evidence
of personal jurisdiction. Additionally, because jurisdictional
discovery is unwarranted, it would be futile for the Plaintiff to
attempt to amend his Complaint to assert specific jurisdiction.
III. Conclusion
For the foregoing reasons, Judge Lopez granted Netgain's motion to
dismiss for lack of personal jurisdiction. She dismissed the
Plaintiff's Complaint with prejudice and without leave to amend.
The Plaintiff's request for jurisdictional discovery is denied. The
Order is not intended to preclude the Plaintiff from pursuing his
claim in another state or joining a pending claim in another
state.
A full-text copy of the Court's April 1, 2022 Order is available at
https://tinyurl.com/4hm6jm4c from Leagle.com.
NEW YORK: Alleyne Sues Over Vaccination Mandate
-----------------------------------------------
VIRGINIA W. ALLEYNE, individually, and on behalf of all other
individuals similarly situated, Petitioners v. ERIC ADAMS, in his
Official Capacity as Mayor of the City of New York, and THE CITY OF
NEW YORK, Respondents, Case No. 153032/2022 (N.Y. Super., New York
Cty., April 8, 2022) is a class action brought by the Plaintiff to
challenge New York City Emergency Executive Order No. 62 issued by
Mayor Eric Adams on March 24, 2022.
According to the complaint, Ms. Alleyne was employed at Yankee
Stadium for 17 years as a waitress at the Legends Club. She was
fired on September 12, 2021 because she refused to get vaccinated.
She and those similarly situated were all terminated from their
employment because of the NYC vaccine mandate for employees. The
Order carves out an exemption for professional athletes and
performing artists, but not for Ms. Alleyne and those similarly
situated firemen, policemen, teachers, sanitation workers,
restaurant workers and other private sector workers, who are all
COVID recovered and have natural immunity.
Respondent Eric Adams is the Mayor of the City of New York and has
issued the arbitrary and capricious Order, notes the complaint. The
Mayor is being sued in his official capacity.[BN]
The Plaintiff is represented by:
James G. Mermigis, Esq.
THE MERMIGIS LAW GROUP, P.C.
85 Cold Spring Road, Suite 200
Syosset, NY 11791
Telephone: (516) 353-0075
Facsimile: (516) 682-0011
NY TEX CARE: Non-Exempt Employees Win Class Status in Francisco
---------------------------------------------------------------
In the class action lawsuit captioned as HERLINDA FRANCISCO, on
behalf of herself, FLSA Collective Plaintiffs, and the Class, v. NY
TEX CARE, INC., d/b/a GREEN & WHITE DRY CLEANERS, and INSUN YUN,
Case No. 1:19-cv-01649-PKC-ST (E.D.N.Y.), the Hon. Judge Pamela K.
Chen entered an order:
1. certifying a Class of "all current and former non-exempt
employees of Green & White who have been employed by the
Defendants since March 22, 2013;" and
2. appointing C.K. Lee and the Lee Litigation Group as Class
Counsel.
The Court sua sponte expands the conditional Fair Labor Standards
Act (FLSA) class to include the same Class Members as the Rule 23
NYLL Class. And the Court directs the parties to Magistrate Judge
Tiscione to draft and issue a notice to the Rule 23 the New York
Labor Law (NYLL) class, to revise and re-issue a notice to the
conditional FLSA class, and to reopen discovery for limited
purposes.
The Plaintiff Herlinda Francisco brings this putative class action
against the Defendants, alleging that several of the Defendants'
employment practices violate the FLSA, and the NYLL.
A copy of the Court's order dated March 28, 2022 is available from
PacerMonitor.com at https://bit.ly/3OjJ9FF at no extra charge.[CC]
OREGON: District Court Certifies Two Classes in Maney v. ODOC
-------------------------------------------------------------
In the case, PAUL MANEY; GARY CLIFT; GEORGE NULPH; THERON HALL;
DAVID HART; SHERYL LYNN SUBLET, and FELISHIA RAMIREZ, a personal
representative for the ESTATE OF JUAN TRISTAN, individually, on
behalf of a class of others similarly situated, Plaintiffs v. STATE
OF OREGON; KATE BROWN; COLETTE PETERS; HEIDI STEWARD; MIKE GOWER;
MARK NOOTH; ROB PERSSON; KEN JESKE; PATRICK ALLEN; and GARRY
RUSSELL, Defendants, Case No. 6:20-cv-00570-SB (D. Or.), Magistrate
Judge Stacie F. Beckerman of the U.S. District Court for the
District of Oregon granted the Plaintiffs' motion for class
certification, or in the alternative, issue certification under
FED. R. CIV. P. 23.
I. Background
Plaintiffs Paul Maney, Gary Clift, George Nulph, Theron Hall, David
Hart, and Sheryl Lynn Sublet, adults in custody ("AIC") at Oregon
Department of Corrections ("ODOC") institutions, along with
Felishia Ramirez, the personal representative for the Estate of
Juan Tristan, filed a sixth amended complaint ("SAC") alleging
constitutional and state law violations against Defendants Governor
Kate Brown, Oregon Health Authority ("OHA") Director Patrick Allen,
several ODOC officials, and the State of Oregon.
Mr. Maney is an AIC at the Oregon State Correctional Institution
("OSCI") in Salem, Oregon, who tested positive for COVID-19 while
incarcerated. Clift is an AIC at OSCI who also tested positive
while incarcerated. Nulph is an AIC at OSCI. Hall is an AIC at the
Oregon State Penitentiary ("OSP") who tested positive while
incarcerated. Hart was previously an AIC at OSP who was diagnosed
with COVID-19 while incarcerated. Sublet was previously an AIC at
Coffee Creek Correctional Facility who tested positive while
incarcerated. Ramirez is the personal representative for the Estate
of Juan Tristan. Mr. Tristan was an AIC at OSP who died while
incarcerated, and COVID-19 caused or contributed to his death.
Defendant State of Oregon is a sovereign state entity within the
United States, and ODOC is a department or division of the State.
Governor Brown is the Governor of the State of Oregon. Peters is
the Director of ODOC, and Heidi Steward is the Deputy Director of
ODOC. Gower is ODOC's Assistant Director of Operations. Nooth is
ODOC's Eastside Institutions Administrator and is responsible for
operations at six ODOC institutions, and Persson is the Westside
Institutions Administrator and is responsible for the remaining
eight ODOC institutions. Jeske is the Oregon Correctional
Enterprises ("OCE") Administrator. Allen is the Director of OHA.
Bugher is the Assistant Director of Health Services for ODOC.
Russell is ODOC's Chief of Security.
The Plaintiffs filed the action in April 2020. On May 12, 2020,
they filed a motion for a temporary restraining order and
preliminary injunction, alleging that the Defendants' response to
the COVID-19 pandemic violated the Eighth Amendment. On June 1,
2020, the Court denied the Plaintiffs' motion.
On June 26, 2020, the Plaintiffs filed a Second Amended Complaint,
alleging that the Defendants (1) violated the Eighth Amendment by
subjecting AICs to cruel and unusual punishment by failing to
provide adequate care during the COVID-19 pandemic and by operating
ODOC facilities without the capacity to treat, test, or prevent the
spread of COVID-19, and (2) were negligent in failing to carry out
proper preventative measures. On Aug. 3, 2020, the Defendants moved
for partial summary judgment on the damages portion of the
Plaintiffs' Eighth Amendment claim and the entirety of the
Plaintiffs' negligence claim. On Dec. 15, 2020, the Court granted
in part and denied in part the Defendants' motion.
On Jan. 22, 2021, the Court granted the Plaintiffs' motion to file
a Third Amended Complaint ("TAC"). The TAC proposed a third class
of AICs (the Vaccine Class) and added Allen as a defendant.
On Jan. 21, 2021, the Plaintiffs moved for a preliminary injunction
requiring ODOC to offer all AICs housed in ODOC facilities a
COVID-19 vaccine, and sought provisional class certification of the
Vaccine Class, which included: "All adults in custody housed at
Oregon Department of Corrections facilities (ODOC) who have not
been offered COVID-19 vaccinations."
On Feb. 2, 2021, the Court granted the Plaintiffs' motion for
provisional class certification of the Vaccine Class and motion for
a preliminary injunction, ordering the Defendants to "offer all
AICs housed in ODOC facilities, who have not been offered a
COVID-19 vaccine, a COVID-19 vaccine as if they had been included
in Phase 1A, Group 2, of Oregon's Vaccination Plan."
On May 3, 2021, the Plaintiffs filed a Fourth Amended Complaint.
The Defendants moved to dismiss and to strike portions of the
Fourth Amended Complaint and requested leave to conduct additional
discovery. The Plaintiffs moved for an order dismissing plaintiff
Micah Rhodes without prejudice and asked the Court to compel the
Defendants to disclose the names of all AICs who had received
positive results on a COVID-19 antibody test.
On Sept. 28, 2021, the Court granted in part and denied in part the
Defendants' motion to dismiss, denied the Defendants' motion to
strike, granted in part the Defendants' motion to compel, granted
the Plaintiffs' request to compel, and granted the Plaintiffs'
motion to dismiss plaintiff Rhodes without prejudice.
On Oct. 5, 2021, the Plaintiffs filed a Fifth Amended Complaint
(Fifth Am. Compl.). Following a status conference held on Oct. 19,
2021, the Plaintiffs filed the SAC on Nov. 2, 2021.
On Nov. 2, 2021, the Defendants moved to dismiss the Plaintiffs'
claim for damages based on the Defendants' alleged "failure to
initially prioritize adults in custody for COVID-19 vaccine
distribution." On Feb. 8, 2022, the Court denied the Defendants'
motion to dismiss as to Governor Brown and Director Allen and
granted the Defendants' motion with respect to the other
defendants.
Specific to the present motion, the Plaintiffs moved to certify the
Damages Class and Wrongful Death Class on May 3, 2021. On Nov. 19,
2021, the Plaintiffs filed a supplemental memorandum in support of
the Class Certification Motion. On Dec. 10, 2021, the Defendants
filed an opposition to the Class Certification Motion. On Jan. 14,
2022, the Plaintiffs replied to the Defendants' Opposition.
Following oral argument on Feb. 14, 2022, the parties filed
supplemental briefing.
II. Analysis
A. The Proposed Classes
The Plaintiffs seek to certify two classes. The Damages Class
"includes all adults incarcerated in ODOC facilities who: (1) were
incarcerated on or after Feb. 1, 2020; (2) while incarcerated,
tested positive or were otherwise diagnosed with COVID-19; and (3)
if they became incarcerated after Feb. 1, 2020, tested positive or
were otherwise diagnosed with COVID-19 at least 14 days after they
entered ODOC custody."
The Wrongful Death Class "includes the estates of those adults
incarcerated at ODOC facilities continuously since Feb. 1, 2020,
who died during the Wrongful Death Class period, and for whom
COVID-19 caused or contributed to their death."
B. Rule 23(a)'s Requirements
Judge Beckerman begins by addressing whether the Plaintiffs have
satisfied the four requirements of FED. R. CIV. P. 23(a) (i.e.,
numerosity, commonality, typicality, and adequacy of
representation) for the proposed classes. She finds that (i) the
Wrongful Death Class is sufficiently numerous such that joinder
would be impracticable, and the Plaintiffs have satisfied the
numerosity requirement; (ii) the Plaintiffs have met the
commonality requirement for both the Damages Class and the Wrongful
Death Class because common questions of law and fact predominate in
the litigation; (iii) the class representatives' claims are
"reasonably co-extensive" with the claims of the putative class
members and therefore satisfy the typicality requirement; (iv) the
proposed representatives have demonstrated adequate knowledge and
engagement in the case to represent the interests of the Damages
Class; and (v) Ramirez has satisfied the adequacy requirement under
Rule 23(a)(4).
For all of these reasons, Judge Beckerman finds that the Plaintiffs
have satisfied FED. R. CIV. P. 23(a)'s requirements for the
proposed Damages Class and the proposed Wrongful Death Class.
C. Rule 23(b)(3)'s Requirements
To qualify for certification under Rule 23(b)(3), a class must meet
two requirements beyond the Rule 23(a) prerequisites: Common
questions must predominate over any questions affecting only
individual members, and class resolution must be superior to other
available methods for the fair and efficient adjudication of the
controversy." The inclusion of Rule 23(b)(3) and its "predominance"
and "superiority" requirements allows courts to certify cases "in
which a class action would achieve economies of time, effort, and
expense, and promote uniformity of decision as to persons similarly
situated, without sacrificing procedural fairness or bringing about
other undesirable results."
Judge Beckerman opines that the Plaintiffs have demonstrated that
based on their theory of liability, common questions present a
significant aspect of the case and those issues are "susceptible to
generalized, classwide proof." Hence, the Plaintiffs have satisfied
Rule 23(b)(3)'s predominance requirement.
Judge Beckerman also opines that there should be no serious dispute
that one liability trial for both classes is superior to and more
manageable than over 5,000 individual liability trials, even if
group or individual trials are later required to determine
individualized damages. She finds that class treatment is clearly
superior to other available methods for the fair and efficient
adjudication of the controversy.
D. Bifurcation
The Plaintiffs propose bifurcation of the trial into two phases
upon certification of the classes: A first phase to determine
"liability, causation, punitive damages common defenses and the
class representatives' claims for damages" ("Phase One"), followed
by a second phase -- should the Plaintiffs prevail in the first
phase—to determine damages for the individual class members
("Phase Two"). Phase Two trials would also address but-for
causation for any wrongful death claims, and any affirmative
defenses related to individual class members.
Judge Beckerman finds that trial bifurcation will likely be
appropriate in the case. Phase One will determine the common issues
of liability, causation, the availability of punitive damages,
common defenses, and the named class members' compensatory damages.
Phase Two, if necessary, will determine individualized damages for
class members, but-for causation for the wrongful death claims, and
whether individualized defenses apply to each class member.
E. Punitive Damages
The Plaintiffs argue that "whether the Plaintiffs and members of
the Damages and Wrongful Death Classes are entitled to an award of
punitive damages, and the amount of such an award," is a common
question that can be decided on a classwide basis. The Defendants
respond that deciding punitive damages on a classwide basis would
violate due process and the Seventh Amendment's Reexamination
Clause.
Judge Beckerman finds that whether the Plaintiffs and the class
members are entitled to punitive damages and the total amount of
that award is a common question that can be adjudicated in Phase
One.
III. Conclusion
For the reasons she stated, Judge Beckerman granted the Plaintiffs'
Motion for Class Certification. She certified the following Damages
Class with respect to the Plaintiffs' Eighth Amendment deliberate
indifference and negligence claims: "All adults incarcerated in
Oregon Department of Corrections facilities who: (1) were
incarcerated on or after Feb. 1, 2020; (2) while incarcerated,
tested positive or were otherwise diagnosed with COVID-19; and (3)
if they became incarcerated after Feb. 1, 2020, tested positive or
were otherwise diagnosed with COVID-19 at least 14 days after they
entered Oregon Department of Corrections custody.
Judge Beckerman certified the following Wrongful Death Class with
respect to the Plaintiffs' wrongful death claim: "Estates of all
adults incarcerated at Oregon Department of Corrections facilities
continuously since Feb. 1, 2020, who died during the Wrongful Death
Class period, and for whom COVID-19 caused or contributed to their
death.
Judge Beckerman appointed (i) Plaintiffs Paul Maney, Gary Clift,
Theron Hall, and David Hart as the representatives of the Damages
Class; (ii) Plaintiff Felishia Ramirez as the representative of the
Wrongful Death Class; and (iii) the counsel of record as the class
counsel for both the Damages Class and Wrongful Death Class.
The parties will confer regarding a proposed case management
schedule, and file a joint status.
A full-text copy of the Court's April 1, 2022 Opinion & Order is
available at https://tinyurl.com/5n77tmrk from Leagle.com.
OS RESTAURANT: Faces Strother Suit Over Managers' Unpaid Wages
--------------------------------------------------------------
SHAPELLE STROTHER, individually and on behalf of all other persons
similarly situated, Plaintiff v. OS RESTAURANT SERVICES, LLC and
BLOOMIN' BRANDS, INC., Defendants, Case No. 8:22-cv-00845-GLS (D.
Md., April 7, 2022) seeks to recover unpaid wages, liquidated
damages, interest, and reasonable attorneys' fees and costs under
the Fair Labor Standards Act, the Maryland Wage and Hour Law, and
the Maryland Wage Payment and Collection Law.
The Plaintiff and other similarly situated current and former
employees work or worked for Defendants in the State of Maryland as
front of house managers and in other comparable positions with
different titles.
Allegedly, the Defendants willfully misclassified Plaintiff and
other FOH managers as salaried employees to evade paying them
overtime wages. The duties performed by Plaintiff and others
similarly situated did not exempt them from the overtime
requirements, says the complaint. They did not have managerial
authority. They did not have the authority to hire and fire other
employees and did not have discretion with regard to any important
issues, adds the complaint.
Bloomin' Brands operates over 700 company-owned and franchised
Outback Steakhouse Restaurants in the United States, 22 of which
are located in the State of Maryland.
OS Restaurant Services, LLC is a wholly owned subsidiary of
Bloomin' Brands.[BN]
The Plaintiff is represented by:
Tiffany Joseph Goodson, Esq.
HKM EMPLOYMENT ATTORNEYS LLP
1617 Eastern Avenue, Suite 20
Baltimore, MD 21231
Telephone: (202) 919-5952
Facsimile: (202) 919-5952
E-mail: tjosephgoodson@hkm.com
PREMIER NUTRITION: Court Names Montera as Class Rep in Fishon Suit
------------------------------------------------------------------
In the case, ERIC FISHON, Plaintiff v. PREMIER NUTRITION
CORPORATION, Defendant, Case No. 16-cv-06980-RS (N.D. Cal.), Judge
Richard Seeborg of the U.S. District Court for the Northern
District of California granted the Plaintiff's motion for leave to
amend the complaint and appointed Mary Beth Montera as the class
representative.
I. Introduction
The Plaintiff brings the motion to file an amended complaint and
appoint a new class representative, Mary Beth Montera. The motion
follows another district court's determination that Eric Fishon,
the previously appointed class representative in the case, did not
meet the adequacy requirement of Federal Rule of Civil Procedure
23(a)(4) in an unrelated class action due to concerns about his
credibility.
When considering the factors relevant to determining whether to
grant the Plaintiff leave to amend the complaint under Rule
15(a)(2), it is in the interest of justice to allow the Plaintiff
to amend the complaint. Further, Montera meets the typicality and
adequacy requirements of Rule 23(a), and thus is appointed class
representative. Pursuant to Civil Local Rule 7-1(b), the motion is
suitable for disposition without oral argument, and the hearing set
for April 7, 2022 is vacated.
II. Background
The case is one of numerous certified class actions pending before
the Court alleging false advertising and other claims in Defendant
Premier's promotion of Joint Juice, a line of joint health dietary
supplements. Each class action concerns a set of the Plaintiffs in
a different state; the action concerns consumers in New York. In
November 2021, the Court set this case for trial on May 23, 2022,
the first of these related cases to proceed to trial.
On Feb. 25, 2022, the Court was notified of concerns from the
Plaintiff's counsel as to the adequacy of named plaintiff Eric
Fishon. On Jan. 19, 2022, a judge in the Southern District of New
York determined that Fishon was not an adequate class
representative in an unrelated proceeding, Fishon v. Peloton
Interactive, due to serious concerns about his credibility. The
Court found that Fishon had "lied to Peloton in the months leading
up to the lawsuit" as he "repeatedly impersonated an attorney in
correspondence with Peloton" in order to gain better service from
the company. Id. The court also noted that his deposition testimony
concerning that correspondence was "evasive at best" and
"perjurious at worst."
Citing concerns about Fishon's ability to lead the class given
these findings in the Peloton case, the Plaintiff now brings the
motion for leave to file a Second Amended Complaint and to appoint
Mary Beth Montera as class representative.
III. Discussion
As a threshold matter, the Defendant argues that decertification,
not amendment, is the proper course of action as the class has
already been certified. The Defendant cites cases in which a court
decertified a class when the class representative was no longer an
adequate or typical representative due to issues concerning their
credibility -- Kaplan v. Pomerantz, 132 F.R.D. 504 (N.D. Ill.
1990); and Dubin v. Miller, 132 F.R.D. 269 (D. Colo. 1990).
However, Judge Seeborg finds that in both of these cases, the
plaintiff's counsel did not propose a substitute class
representative. In contrast, the Plaintiff cites to numerous cases
in which a district court has permitted substitution of the class
representative following certification.
Substitution of a new named plaintiff to address the inadequacy of
a class representative, a routine feature of class actions, lies
within the district court's discretion." Indeed, courts have also
expressed a preference for plaintiff's counsel to locate a new
class representative once the original class representative can no
longer carry on their duties, rather than dismissing or
decertifying a class. Thus, Judge Seeborg may consider the merits
of the Plaintiff's motion for leave to amend.
Consideration of the five factors warrants granting the Plaintiff
leave to amend the complaint, he finds. He says, four factors weigh
strongly in the Plaintiff's favor. First, there is no showing of
bad faith. Second, although it is possible the Plaintiff could have
alerted defense counsel and the Court to the credibility issues
concerning Fishon sooner, the one month between the Southern
District of New York's decision in Peloton and the Plaintiff's
motion in the case does not constitute undue delay. Third, as for
repeated amendments, the Plaintiff has only amended the complaint
once before. Fourth, amendment is not futile. The last factor and
the most important factor is prejudice. Although the Defendant will
have to undertake some additional discovery, the Defendant has not
shown prejudice sufficient to deny the Plaintiff's motion.
The backdrop of the case is key to the motion. The case is one of
numerous cases averring similar state law claims about the same
product. The original complaint averred that Joint Juice packaging
"attracts purchasers who suffer from arthritis and joint pain,"
Complaint, and other class representatives testified in their
depositions that they purchased Joint Juice in order to alleviate
joint pain and arthritis symptoms. Indeed, Fishon testified he
purchased Joint Juice because of his joint stiffness. The Defendant
will undoubtedly need to undertake some new discovery to prepare
for trial with Montera as class representative, such as taking her
deposition. But in the context of thie litigation, in which
significant discovery has occurred over many years and in many
cases, the discovery necessary to adapt the Defendant's case to
Montera as class representative is not sufficient to justify
denying the Plaintiff's motion. In short, when considering the
relevant factors, leave to amend is warranted, and the Plaintiff's
motion is granted.
IV. Conclusion
For these reasons, Judge Seeborg granted the Plaintiff's motion for
leave to amend the complaint. Further, he appointed Mary Beth
Montera as the class representative.
A full-text copy of the Court's March 30, 2022 Order is available
at https://tinyurl.com/56bud5yc from Leagle.com.
RAM PAYMENT: Antico Bid to Certify Class Denied
-----------------------------------------------
In the class action lawsuit captioned as FRANCES ANTICO, Executrix
of the Estate of June Germinario, v. RAM PAYMENT, L.L.C. et al.,
Case No. 1:20-cv-12130-CPO-MJS (D.N.J.), the Hon. Judge Christine
P. O'Hearn entered an order that that Defendant's motion to certify
class is denied and the Plaintiff is granted leave to renew her
Motion at the close of discovery.
The Defendant is a payment processor in the debt relief industry.
A copy of the Court's order dated March 28, 2022 is available from
PacerMonitor.com at https://bit.ly/3jMUKzb at no extra charge.[CC]
RED HOOK: Ellington, et al., File Bid for Conditional Certification
-------------------------------------------------------------------
In the class action lawsuit captioned as ERICA ELLINGTON et. al.,
v. RED HOOK CAJUN SEAFOOD & BAR INC et. al., Case No.
2:21-cv-02751-TLP-atc (W.D. Tenn.), the Plaintiffs Erica Ellington
and Ian Daniels ask the Court to enter an order:
1. conditionally certifying this action under the Fair Labor
Standards Act ("FLSA"), 29 U.S.C. section 216(b);
2. authorizing the Plaintiffs' claims to proceed as a FLSA
collective action on behalf of Plaintiffs and other
similarly situated servers and bartenders for minimum wage
and overtime violations;
3. directing the Defendants to immediately provide
Plaintiffs' counsel a computer-readable file containing
the names (last names first), last known physical
addresses, last known email addresses, social security
numbers, dates of employment, and last known telephone
numbers of all individuals it employed as servers and
bartenders during the during the last three years;
4. providing that the Court-approved notice be posted at all
of the Defendants' restaurants, enclosed with all of
Defendants' currently employed putative class members'
next regularly-scheduled paycheck/stub, and be mailed and
emailed to individuals Defendants employed as a server
and/or bartender during the during the relevant period;
5. tolling the statute of limitations for the putative class
as of the date this is fully briefed; and
6. requiring that the Opt-in Plaintiffs' Consent to Join
Forms be deemed "filed" on the date they are postmarked.
A copy of the Plaintiffs' motion to certify class dated March 28,
2022 is available from PacerMonitor.com at https://bit.ly/37j9vXY
at no extra charge.[CC]
The Plaintiffs are represented by:
Robert E. Morelli, III, Esq.
J. Russ Bryant, Esq.
Robert E. Turner, IV, Esq.
JACKSON SHIELDS YEISER HOLT
OWEN & BRYANT
262 German Oak Drive
Memphis, TN 38018
Telephone: (901) 754-8001
Facsimile: (901) 759-1745
E-mail: rbryant@jsyc.com
rturner@jsyc.com
rmorelli@jsyc.com
REVOLUTION TRUCKING: Misclassifies Cargo Van Drivers, Woolf Says
----------------------------------------------------------------
ALLEN WOOLF, on behalf of himself and all others
similarly-situated, Plaintiff v. REVOLUTION TRUCKING, LLC, JAMES
ADAMS, and BRIAN WATSON, Defendants, Case No. 1:22-cv-00562-CEF
(N.D. Ohio, April 7, 2022) arises from the Defendants' alleged
conduct of misclassifying Plaintiff and similarly situated cargo
van drivers as "independent contractors" as part of a company-wide
scheme to avoid paying overtime, in violation of the Fair Labor
Standards Act.
Mr. Woolf was hired by Defendants as a cargo van driver in
September 2021.
Revolution offers brokered shipping and trucking services
throughout the United States, Canada, and Mexico.[BN]
The Plaintiff is represented by:
Chris P. Wido, Esq.
SPITZ, THE EMPLOYEE'S LAW FIRM
25825 Chagrin Boulevard, Suite 200
Beachwood, OH 44122
Telephone: (216) 291-4744
Facsimile: (216) 291-5744
E-mail: chris.wido@spitzlawfirm.com
SAMSUNG ELECTRONICS: Stewart Sues Over Smartphone Throttling Scheme
-------------------------------------------------------------------
MICHAEL STEWART, BRIAN ROEDER, LORENZO HAMILTON, BEN REHKEMBER, ANN
BRUMBACK, AMANDA MCAVOY, and KAREN RYDER, individually and on
behalf of all others similarly situated, Plaintiffs v. SAMSUNG
ELECTRONICS AMERICA, INC., and SAMSUNG ELECTRONICS CO., LTD.,
Defendants, Case No. 2:22-cv-02057-JMV-AME (D.N.J., April 8, 2022)
is a class action suit against Defendants for the design,
manufacturing, marketing, and sale of Samsung smartphones which
engage in "benchmark cheating" for containing a mobile application
called Game Optimizing Service that artificially and selectively
limits access to the devices' processing power and other resources,
purportedly with the intention of preventing overheating and
extending battery life of the devices.
The Defendant allegedly engaged in secretly "throttling" the
performance of apps on its smartphones. That is, Samsung has
programmed the devices to limit access to their fastest processing
cores for numerous popular applications, causing slowdown in
typical workloads such as web browsing and gaming. In turn, Samsung
was able to advertise its devices to consumers, including the
Plaintiffs, as achieving significant speeds and high-level
performance, while maintaining ample battery life. However, the
advertised benchmark results are useless for the user's experience,
as applications on Samsung's smartphones are secretly throttled by
Defendants, says the suit.
Samsung Electronics America, Inc. manufactures electronic products.
The Company offers televisions, digital cameras, cell phones,
storage devices, home appliances, security systems, smartwatches,
and computer products. Samsung Electronics America serves customers
worldwide.[BN]
The Plaintiffs are represented by:
James E. Cecchi, Esq.
Kevin G. Cooper, Esq.
CARELLA, BYRNE, CECCHI, OLSTEIN, BRODY &
AGNELLO P.C.
5 Becker Farm Road
Roseland, NJ 07068
Telephone: (973) 994-1700
E-mail: JCecchi@carellabyrne.com
KCooper@carellabyrne.com
- and -
Steve W. Berman, Esq.
Thomas E. Loeser, Esq.
HAGENS BERMAN SOBOL SHAPIRO LLP
1301 Second Avenue, Ste. 2000
Seattle, WA 98101
Telephone: (206) 623-7292
Facsimile: (206) 623-0594
E-mail: steve@hbsslaw.com
toml@hbsslaw.com
SEDGWICK CLAIMS: S. Siler Can't Intervene in Adams-Gillard Suit
---------------------------------------------------------------
In the case, DENITA ADAMS-GILLARD, KATHRYN HAMANN, AND JAY SYCKS,
individually and on behalf of all others similarly situated,
Plaintiffs v. SEDGWICK CLAIMS MANAGEMENT SERVICES, INC., a
Tennessee for Profit Corporation, Defendant, Case No.
2:21-cv-02038-SHM-cgc (W.D. Tenn.), Judge Samuel H. Mays, Jr., of
the U.S. District Court for the Western District of Tennessee,
Western Division, denied Shondra Siler's initial motion to
intervene and her corrected motion to intervene.
I. Background
The lawsuit is a putative class action. Named Plaintiffs
Adams-Gillard and Sycks assert claims for unpaid overtime against
their employer, Defendant Sedgwick. Siler, another Sedgwick
employee, filed an initial motion to intervene on Nov. 26, 2021.
She filed a corrected motion to intervene on Nov. 29, 2021. The
Named Plaintiffs and Sedgwick filed responses in opposition. Siler
filed a reply.
The Motions to Intervene address the unpaid overtime claims of
certain Sedgwick Disability Representative Senior ("DRS") employees
based in Illinois. Siler, the Named Plaintiffs, and Sedgwick
dispute how and where those claims should be resolved. There are
three relevant cases: 1) Easterwood v. Sedgwick Claims Management
Services, Inc., 6:19-cv-700-Orl-78LRH (M.D. Fla.) ("Easterwood
Action"); 2) Walker v. Sedgwick Claims Management Services, Inc.,
1:19-cv-07482 (N.D. Ill.) ("Walker Action"); and 3) Adams-Gillard
v. Sedgwick Claims Management Services, Inc., 2:21-cv-02038-SHM-cgc
(W.D. Tenn.) ("Adams-Gillard Action"), the present case.
In the Easterwood Action, Sedgwick employees asserted unpaid
overtime claims under the Fair Labor Standards Act ("FLSA"), 29
U.S.C. Sections 201, et seq. The court in the Easterwood Action
certified an opt-in collective that covered Sedgwick DRS employees
whose job was to process disability claims ("DRS-Disability
Employees"). Of approximately 137 Illinois DRS-Disability
Employees, 20 exercised their opt-in right and resolved their FLSA
claims. Adams-Gillard was among the Illinois DRS-Disability
Employees who opted in to the FLSA collective.
In the Walker Action, Sedgwick employees asserted unpaid overtime
claims under the FLSA, the Illinois Minimum Wage Law, 80 ILCS
Sections 105/1, et seq., and the Chicago Minimum Wage Ordinance,
Section 1-24-10 of the Municipal Code of Chicago. An initial
complaint was filed on Nov. 12, 2019. The initial complaint names
Janet Walker and Kimberly Harris as representative plaintiffs.
Walker and Harris sought to represent approximately 40 Sedgwick DRS
employees whose job was to process ADA accommodation requests at
Sedgwick's Chicago locations ("DRS-Accommodation Employees"). An
amended complaint was filed on April 19, 2021. It added Siler as a
representative plaintiff. Walker, Harris, and Siler seek to
represent both the 40 Illinois DRS-Accommodation Employees and the
117 Illinois DRS-Disability Employees who did not opt in to the
Easterwood Action.
In the Adams-Gillard Action, Sedgwick employees asserted unpaid
overtime claims under Illinois state law and Chicago Municipal
Ordinances and Codes. The complaint was filed on Jan. 19, 2021.
Adams-Gillard, as a Named Plaintiff, seeks to represent a class of
Illinois DRS-Disability Employees.
Sedgwick moved to dismiss the complaint in the Adams-Gillard
Action. It argued that the claims in the Walker Action and
Adams-Gillard Action were "nearly identical" and that the Court
should stay or dismiss the Adams-Gillard Action under the
first-to-file rule. The Named Plaintiffs responded in opposition.
Sedgwick withdrew its first-to-file argument on June 30, 2021.
On Oct. 22, 2021, the Named Plaintiffs advised the Court that the
parties to the Adams-Gillard Action had reached a settlement that
resolved the state and municipal overtime claims of Illinois
DRS-Disability Employees. Sedgwick informed Siler and the court in
the Walker Action that it could no longer participate in settlement
discussions about Illinois DRS-Disability employees. The Named
Plaintiffs filed a motion for settlement approval and class
certification on Dec. 16, 2021.
II. Analysis
A. Mandatory Intervention
Ms. Siler asks the Court to grant her Motions to Intervene so that
she can protect her own interests and the interests of the Walker
Action putative class
First, Judge Mays holds that Siler has not established that she is
entitled to intervention as of right. Siler filed her Motions to
Intervene before the terms of the proposed settlement were publicly
available. She raised additional concerns after the Named
Plaintiffs provided a proposed settlement with their motion for
settlement approval and class certification. Sedgwick and the Named
Plaintiffs were not prejudiced by undue delay.
Next, Judge Mays finds that Siler has a substantial legal interest
in the Adams-Gillard Action. Resolution of the Adams-Gillard Action
might affect Siler's claims in the Walker Action.
Moreover, Judge Mays finds that Siler has opportunities to protect
her interests and the interests of the Walker Action putative
class. She may opt out of any class certified in the Adams-Gillard
Action or may object to settlement terms at a future fairness
hearing. Siler has failed to show an impairment of her ability to
protect her interests in the absence of intervention.
Lastly, Siler has not established that Adam-Gillard represents an
adverse interest or has failed to fulfill her duty as a Named
Plaintiff. She does not explain why release of FLSA claims in the
Easterwood Action impedes Adam-Gillard's ability to act as a Named
Plaintiff in the present action. The record shows that
Adams-Gillard did hold an Illinois DRS position and that her
interests are consistent with Siler's interests. Hence, Siler has
not established inadequacy of representation.
B. Permissive Intervention
Exercising discretion, Judge Mays denies permissive intervention.
The Motions to Intervene are timely, and there is at least one
common question of law or fact. However, permissive intervention
would result in undue delay and prejudice to the parties. Allowing
intervention at this stage for the purpose of opposing the
settlement would delay the outcome of the litigation. Intervention
for the purpose of disrupting the settlement is prejudicial to the
parties. So, permissive intervention is denied.
III. Conclusion
Judge Mays denied the Initial Motion to Intervene and the Corrected
Motion to Intervene.
A full-text copy of the Court's March 30, 2022 Order is available
at https://tinyurl.com/2db6r58z from Leagle.com.
SIMPLY AMAZING: Iskhakova Sues Over Blind-Inaccessible Website
--------------------------------------------------------------
MARINA ISKHAKOVA, on behalf of herself and all others similarly
situated, Plaintiff v. SIMPLY AMAZING, LLC, Defendant, Case No.
1:22-cv-02014 (E.D.N.Y., April 8, 2022) arises from the Defendant's
failure to design, construct, maintain, and operate its website
http://www.amazingsavings.com/to be fully accessible to and
independently usable by the Plaintiff and other blind or visually
impaired people in violation of the Americans with Disabilities Act
and the New York City Human Rights Law.
The Plaintiff alleges that the Defendant engaged in acts of
intentional discrimination due to the inaccessibility of its
website, and seeks a permanent injunction to cause Defendant to
change its corporate policies, practices, and procedures so that
its website will become and remain accessible to blind and visually
impaired consumers.
Simply Amazing LLC was founded in 2005. The company's line of
business includes the retail sale of products by television,
catalog, and mail-order.[BN]
The Plaintiff is represented by:
Mark Rozenberg, Esq.
STEIN SAKS, PLLC
One University Plaza, Suite 620
Hackensack, NJ 07601
Telephone: (201) 282-6500
Facsimile: (201) 282-6501
E-mail: mrozenberg@steinsakslegal.com
SOUTHERN THERAPY: Bailey Conditional Certification Bid Nixed
-------------------------------------------------------------
In the class action lawsuit captioned as JENNIFER BAILEY and LANA
LUFT, on behalf of themselves and all others similarly situated, v.
SOUTHERN THERAPY SERVICES, INC. and BO HAMIL, Case No.
1:20-cv-02445-SDG (N.D. Ga.), the Hon. Judge Steven D. Grimberg
entered an order denying without prejudice the Plaintiffs' motion
for conditional certification.
Within 30 days after entry of this Order, the Plaintiffs may file a
renewed motion for conditional certification supported by the
requisite evidence, the Court says.
The Plaintiffs Jennifer Bailey and Lana Luft sue the Defendants
under the Fair Labor Standards Act for unpaid overtime wages. The
Plaintiffs initiated this action on June 8, 2020. On June 24, 2020,
Plaintiffs filed their First Amended Complaint.
On April 28, 2021, the Court entered an order granting Plaintiffs
leave to file their Second Amended Complaint, which Plaintiffs
filed on May 6 against Southern and Defendant Bo Hamil, mooting
Southern's motion for leave to file an amended answer and
Plaintiffs' motion for conditional certification. On June 3, 2021,
the Plaintiffs filed a second motion for conditional certification
and for approval of a proposed notice to be sent to potential class
members.
Southern Therapy Services is a therapist-owned rehabilitation
company.
A copy of the Court's order dated March 28, 2022 is available from
PacerMonitor.com at https://bit.ly/3KMRMXh at no extra charge.[CC]
SOUTHWEST AIRLINES: Court Grants Bid to Dismiss Weaver Class Suit
-----------------------------------------------------------------
In the case, BARRY WEAVER, et al., Plaintiffs v. SOUTHWEST
AIRLINES, CO., Defendant, Civil Action No. RDB-21-1891 (D. Md.),
Judge Richard D. Bennett of the U.S. District Court for the
District of Maryland granted the Defendant's Motion to Dismiss.
I. Background
Plaintiff Weaver, a Lieutenant Colonel in the Air National Guard,
brings the putative class action against Defendant Southwest,
alleging violations of the Uniformed Services Employment and
Reemployment Rights Act of 1994, 38 U.S.C. Sections 4301 et seq.
("USERRA"). Specifically, Weaver alleges that Southwest violated
USERRA through the establishment and implementation of its COVID-19
Extended Emergency Time Off program ("ExTO"), which he contends
resulted in his being denied certain pay and benefits.
Plaintiff Weaver is a Virginia resident and a Lieutenant Colonel in
the District of Columbia Air National Guard. He was hired by
Southwest Airlines on Aug. 14, 2018 and is based in Baltimore,
Maryland as a Boeing 737 pilot. Defendant Southwest is a Texas
corporation with its principal place of business in Texas. On July
16, 2019, Weaver began a long-term military leave of absence which
was scheduled to run through July 31, 2021.
In an effort to save costs in response to the global COVID-19
pandemic, Southwest encouraged employees in March and May 2020 to
take the maximum military leave possible over the course of that
year and into early 2021. It informed employees that military leave
from March 1, 2020 through at least August 2021 would not be
included as part of an employee's five-year cumulative USERRA
exempt duty calculation.
On June 1, 2020, Southwest announced a policy called the ExTO or
the Program. Under the Program, employees are eligible to take a
leave of absence with no employment commitments during which they
receive a reduced amount of pay and full benefits, such as medical
coverage and vacation accrual. Employees were permitted to
volunteer to participate in the ExTO program for a period of six
months, one year, two years, three years, or five years.
Under the terms of the Program, active employees were eligible to
participate so long as they were not on a leave of absence. While
covered under the Program, employees would receive approximately
50% of their base pay, or for pilots, approximately 55 pay credits
or hours for each month of Program participation.
On June 30, 2020, Southwest issued a Memorandum addressed to its
military pilots explaining that while pilots currently on military
leave would be permitted to bid for ExTO by July 15, 2020, their
ExTO leave and benefits would not begin until their return from
military service. Following return from military leave, the Program
benefits would commence and be provided for the remainder of the
originally awarded ExTO period.
As noted, at the time the COVID-19 pandemic began, Weaver was on a
long-term military leave of absence that had been scheduled to last
through July 31, 2021. Following Soutwest's requests in March and
May 2020 that military employees take the maximum possible military
leave, Weaver was able to extend his military duty to allow for a
later return to Southwest. Weaver applied for the ExTO Program
during the enrollment window and was awarded a five-year ExTO term.
Because Weaver was on military leave during the ExTO bidding
process, he alleges that he was denied Program pay and benefits. On
July 28, 2021, Weaver filed suit in the Court.
II. Analysis
The Plaintiff brings claims against Southwest pursuant to two
provisions of USERRA: Sections 4316(b)(1)(B) and 4311(a). Southwest
argues that the Plaintiff has failed to state a plausible claim for
relief under either provision.
Judge Hazel of the Court has recently explained the purposes and
framework of USERRA: Congress enacted USERRA to (1) encourage
non-career military service by eliminating or minimizing
disadvantages to civilian careers; (2) minimize disruption to
service member's lives and their employers by providing for prompt
reemployment; and (3) prohibit discrimination against members of
the armed forces. 38 U.S.C. Section 4301(a). Because USERRA was
enacted to protect the rights of veterans and members of the
uniformed services, it must be broadly construed in favor of its
military beneficiaries. Four sections of USERRA outline its
framework: 4311, 4312, 4313, and 4316. Section 4311 prohibits
discrimination on the basis of military service, sections 4312 and
4313 entitle veterans to reemployment after military service and
prescribe the positions to which they may return, and section 4316
prohibits discharge of reemployed veterans without cause within a
set period of time.
A. Section 4316(b)(1)(B) Claims
Judge Bennett opines that the Plaintiff's claims under section
4316(b)(1)(B) fail because he has not pled that the Program treats
military leave less favorably than any other form of leave. In the
case, the Plaintiff has alleged that employees were eligible for
the Program "so long as they were not absent due to a leave of
absence." Thus, both employees who were "absent from a position of
employment by reason of service in the uniformed forces" and
employees "having similar seniority, status, and pay who were on
leaves of absence" were treated the same for the purposes of the
Program in that they were not eligible to receive the benefits of
the Program during their period of leave.
Because he has not alleged that employees on military leave were
excluded from the Program while employees on other types of leave
were included in it, the Plaintiff has failed to plead an essential
element of a claim under Section 4316(b)(1)(B). Hence, the
Defendant's Motion to Dismiss is granted as to the claims under
Section 4316(b)(1)(B) of USERRA, and those claims are dismissed
with prejudice.
B. Section 4311(a) Claims
Judge Bennett also finds that the Plaintiff has also failed to
state a plausible claim for relief under section 4311(a). The
Plaintiff has failed to set forth allegations sufficient to show
that Southwest took an adverse employment action against him. He
alleges merely that Southwest subjected him to the requirements for
participation in the ExTO program. He does not, for example, allege
"any decrease in compensation, job title, level of responsibility,
or opportunity for promotion," nor does he allege that his
employment was terminated. Accordingly, the Plaintiff's Section
4311(a) claims fail.
Even assuming the Plaintiff had properly pled an adverse employment
action, Judge Bennett holds that he has not sufficiently alleged
that his military service was a motivating factor for that action.
The Plaintiff appears to contend that in March and May 2020,
Southwest specifically encouraged employees like himself to take
extended military leave for the purpose of later excluding them
from the ExTO program, which it announced in June 2020. As noted,
the Plaintiff, however, had been on pre-planned military leave
since July 2019. The Plaintiff offers only speculative allegations
to support his contention that military service was a motivating
factor driving Southwest to engage in some discriminatory action
against him.
Accordingly, the Defendant's Motion to Dismiss is granted as to the
Plaintiff's claims under 38 U.S.C. Section 4311(a), and those
claims are dismissed without prejudice.
III. Conclusion
For the reasons he stated, Judge Bennett granted the Defendant's
Motion to Dismiss. Specifically, Weaver's claims under Section
4316(b)(1)(B) are dismissed with prejudice. His claims under
Section 4311(a) are dismissed without prejudice. A separate Order
follows.
A full-text copy of the Court's April 1, 2022 Memorandum Opinion is
available at https://tinyurl.com/y28zatxu from Leagle.com.
STAKE CENTER: Walker Seeks to Certify Class of Utility Locators
---------------------------------------------------------------
In the class action lawsuit captioned as DUSTIN WALKER,
individually and for others similarly situated, v. STAKE CENTER
LOCATING, INC., Case No. 2:21-cv-00183-RJS-DAO (D. Utah), the
Plaintiff asks the Court to enter an order certifying a putative
class consisting of:
"all Utility Locators who performed services for Stake Center
Locating, Inc. who were, at any point in the past three
years, not paid time and a half for hours worked over 40 in a
workweek."
SCL allegedly failed to properly compensate Walker and its other
non-exempt hourly Utility Locators for all hours worked each week.
SCL boasts it is "the expert and market leader in high-risk
infrastructure and fiber optic network locating" and bills itself
as "a locating powerhouse" employing "700+ employees" "operating in
48 states" performing "600,000+ locates per month."
To provide these locating services to its clients, SCL employs
Utility Locators (including Walker and opt-in plaintiffs) who it
classifies as non-exempt employees and pays on an hourly basis.
SCL's Utility Locators like the Plaintiffs and the Putative Class
Members:
-- All performed non-exempt job duties such as locating,
identifying, and marking underground utility lines for gas,
electrical, and telecom related to construction and other
projects for SCL's clients.
-- Regularly worked over 40 hours per week, including working
through lunches and on the weekends to complete the work
required by SCL and were expected to be "on-call" at all
times.
A copy of the Plaintiff's motion to certify class dated March 28,
2022 is available from PacerMonitor.com at https://bit.ly/3uOdjZS
at no extra charge.[CC]
The Plaintiff is represented by:
M. Paige Benjamin, Esq.
PO Box No. 1464
Provo, UT 84603
E-mail: Paigebenjamin@mac.com
- and -
Michael A. Josephson, Esq.
Richard M. Schreiber, Esq.
JOSEPHSON DUNLAP LLP
11 Greenway Plaza, Suite 3050
Houston, TX 77046
Telephone: (713) 352-1100
Facsimile: (713) 352-3300
E-mail: mjosephson@mybackwages.com
rschreiber@mybackwages.com
- and -
Richard J. (Rex) Burch, Esq.
BRUCKNER BURCH PLLC
11 Greenway Plaza, Suite 3025
Houston, TeX 77046
Telephone: (713) 877-8788
Facsimile: (713) 877-8065
E-mail: rburch@brucknerburch.com
STATE FARM: Court Narrows Claims in Bauer Suit
----------------------------------------------
In the class action lawsuit captioned as KATHY BAUER, on behalf of
herself and others similarly situated, v. STATE FARM LIFE INSURANCE
COMPANY, Case No. 1:21-cv-00464-SDG (N.D. Ga.), the Court entered
an order that:
1. State Farm's motion to dismiss the First Amended Complaint
in part and motion to strike is granted;
2. Bauer's claims for conversion (Count III) and for a
declaratory judgment (Count IV) are dismissed without
prejudice, and Bauer's prayer for punitive and exemplary
damages is stricken.
The following well-pled allegations are accepted as true for
purposes of this Order. Kathy Bauer purchased, and still owns, a
flexible premium adjustable whole life insurance policy.
State Farm administers all aspects of the Policy, including
collecting premiums and setting and deducting Policy charges.
Bauer's Policy provides for death benefits as well as an
interest-bearing component, which operates like a savings account
for premium dollars, referred to as "Account Value."
The Account Value is Bauer's property. On a monthly basis, State
Farm deducts from the Account Value an amount comprised of the cost
of insurance (COI), the monthly charge for any riders, and the
monthly expense charge. The monthly expense charge is five dollars.
The COI is calculated from a monthly cost of insurance (MCI) rate,
defined in the Policy as follows: "[R]ates for each policy year are
based on the Insured’s age on the policy anniversary, sex, and
applicable rate class." 8 Despite this Policy language, State Farm
allegedly calculates the monthly MCI and, in turn, the monthly COI,
based on factors other than the insured’s age, sex, and
applicable rate class, including profit and expenses.
State Farm charges higher rates and, as a result, raises the COI
and deducts more from the Account Value than is authorized by the
Policy. Bauer further contends that State Farm intentionally
concealed its rate calculations and that she could not discover
these unauthorized deductions despite reasonable diligence. Bauer,
on behalf of herself and others similarly situated, filed suit
against State Farm for deducting unauthorized amounts from her
Account Value. In her First Amended Complaint, Bauer asserts two
claims for breach of contract, for determining the COI
inconsistently with the terms of the Policy and for charging
amounts in excess of the fixed expense charges; for conversion; and
for declaratory and injunctive relief. Bauer seeks compensatory,
punitive, and exemplary damages.
A copy of the Court's order dated March 28, 2022 is available from
PacerMonitor.com at https://bit.ly/3M775u6 at no extra charge.[CC]
SUBURBAN PROPANE: Whitney Files Suit Over Billing Errors
--------------------------------------------------------
Linnea Whitney, on behalf of herself and others similarly situated,
Plaintiff v. Suburban Propane, L.P., Defendant, Case No.
2:22-cv-00633-WBS-AC (E.D. Cal., April 8, 2022) is a class action
concerning unlawful billing practices imposed on Plaintiff and
other consumers by Defendant Suburban Propane, L.P. involving
quantities of propane gas that were not and could not have been
reasonably consumed by Plaintiff and the Class in violation of the
California's Rosenthal Fair Debt Collection Practices Act.
According to the complaint, the Plaintiff and the Class were
besieged by unconscionably high bills proffered by Defendant for
volumes of propane gas that far exceed any reasonable amount that
would be consumed by Plaintiff and the Class, shortly after the
start of the COVID-19 pandemic in early 2020 and the imposition of
a State of Emergency by the Governor of California.
Allegedly, the Defendant has steadfastly refused to correct its
egregious billing errors and reissue billing statements that
accurately reflect the propane gas consumed by Plaintiff and the
putative Class, despite numerous and vociferous challenges to
Defendant's bills by Plaintiff.
Plaintiff Linnea Whitney is a former resident of Siskiyou County
and still maintains an account with Defendant for past delivery of
propane gas to her previous residence in Siskiyou County.
Suburban Propane, L.P. is a Delaware limited partnership
headquartered in Whippany, New Jersey. Suburban Propane is a wholly
owned limited partnership entity of Suburban Propane Partners,
L.P., a publicly traded Delaware limited partnership.[BN]
The Plaintiff is represented by:
Manfred P. Muecke, Esq.
MANFRED, APC
600 West Broadway, Suite 700
San Diego, CA 92101
Telephone: (619) 550-4005
Facsimile: (619) 550-4006
E-mail: mmuecke@manfredapc.com
TAKEDA PHARMACEUTICAL: Compelled to Show Emails in Antitrust Suit
-----------------------------------------------------------------
In the case, IN RE ACTOS ANTITRUST LITIGATION, THIS DOCUMENT
RELATES TO: ALL ACTIONS, Master File No. 1:13-cv-09244 (RA) (SDA)
(S.D.N.Y.), Magistrate Judge Stewart D. Aaron of the U.S. District
Court for the Southern District of New York granted in part and
denied in part the Plaintiffs' Letter Motion seeking Takeda to
compel to:
(1) produce all nonprivileged, responsive earlier-in-time
emails that are part of the most-inclusive email threads
Takeda already has produced or will produce to the
Plaintiffs; and
(2) provide privilege log entries for earlier-in-time emails
that are part of email threads redacted or withheld for
privilege.
The Takeda Defendants are Takeda Pharmaceutical Co. Ltd., Takeda
America Holdings, Inc., Takeda Pharmaceuticals U.S.A., Inc. and
Takeda Development Center Americas, Inc. (collectively, "Takeda").
I. Background
The lawsuit is a complex antitrust class action in which the
Plaintiffs allege that the Takeda prevented competitors from timely
marketing a generic version of Takeda's diabetes drug ACTOS by
falsely describing two patents to the Food and Drug Administration.
The Plaintiffs are drug purchasers who allege that they wrongfully
were obliged to pay monopoly prices for ACTOS from January 2011,
when Takeda's patent on the active ingredient in ACTOS expired, to
at least February 2013, when the mass of generic market entry
occurred.
The action was filed on Dec. 31, 2013. On March 18, 2015, the Court
approved the Order Governing Protocol for Discovery of
Electronically Stored Information and Hard Copy Documents that the
parties had proposed. The Discovery Protocol calls for the
production of electronically stored information ("ESI") in native
format, together with the metadata and coding fields set forth in
Exhibit 1 to the Protocol. The Protocol requires the parties to
de-duplicate the ESI that is produced, so as to avoid the
production of "exact duplicate documents." However, the Protocol
nowhere provides for the production of only the most inclusive
email threads.
After motion practice and two appeals to the Second Circuit, on
Aug. 25, 2021, the Circuit remanded the action to the Court.
Beginning in February 2022, Takeda made multiple rolling
productions of non-privileged documents from 25 agreed custodians,
including six in-house lawyers. In its production, Takeda used
email threading, "by which a party reviews and produces the
most-inclusive email in a thread."
The Plaintiffs object to Takeda's use of email threading and seek
to compel Takeda to produce what they refer to as "earlier-in-time
emails," as well as the metadata associated with those emails. They
also seek to compel Takeda to provide privilege log entries for all
emails, including the earlier-in-time emails. Takeda responds that
compelling such an approach "would impose an enormous burden." The
parties have exchanged drafts of a privilege log protocol, but have
been unable to agree to the terms.
The Court held a telephone conference on March 29, 2022, during
which the Plaintiffs' Letter Motion was addressed.
II. Discussion
A. Email Threading
The first issue before the Court, i.e., regarding email threading,
highlights the importance of negotiating a comprehensive ESI
protocol before data production is undertaken. The issue arises
because Takeda made its initial rolling productions using email
threading even though the Discovery Protocol, by its terms, did not
permit such approach.
Judge Aaron opines that Takeda's exclusion of lesser included
emails from production has resulted in the exclusion of the
metadata associated with earlier emails in a chain (which may be
weeks or even months prior to the last email in a chain). This
exclusion materially has reduced the Plaintiffs' ability to search
for all correspondence within a date range. In addition, in certain
email chains, only the sender of particular emails earlier in a
chain are reflected, and not the recipients of such emails.
Finally, Takeda's email threading has removed the Plaintiffs'
ability to see if anyone was blind-copied on lesser included
emails, even though this information was among the metadata the
parties agreed in the Discovery Protocol to produce.
If the issue of email threading had been raised at the time the
parties were negotiating the Discovery Protocol, the Plaintiffs may
have been able to ameliorate the foregoing issues. However, the
Plaintiffs were not provided the opportunity to negotiate how email
threading might be accomplished in an acceptable manner.
In the circumstances presented, and based upon careful review of
the parties' submissions, Judge Aaron declines to impose email
threading on the Plaintiffs. Moreover, although he recognizes that
the production of earlier-in-time emails will cause some additional
burden on Takeda, Judge Aaron finds that any additional burden is
not undue since Takeda agreed to the Discovery Protocol and likely
already has reviewed many of the emails at issue. Thus, Takeda will
produce all responsive ESI to the Plaintiffs, including
earlier-in-time emails.
B. Privilege Log
The parties have exchanged drafts of a privilege log protocol, but
have been unable to agree to terms regarding how email threads
should be logged. However, because Judge Aaron now is requiring
Takeda to produce earlier-in-time emails, which will affect the
scope of the privilege log, the parties may be able to reach an
agreement on the privilege log issue. Accordingly, the parties are
directed to meet and confer to seek to agree on a revised privilege
log protocol, taking into account the Court's ruling. The
discussion is designed to provide guidance to the parties regarding
the terms of such protocol.
Now that the Court now is requiring the production of all
responsive ESI, the parties are directed to meet and confer with
respect to the privilege log protocol, consistent with the
principles set forth, and seek to agree to terms.
III. Conclusion
By reason of the foregoing, Judge Aaron granted in part and denied
in part the Plaintiffs' Letter Motion. Takeda will produce all
responsive ESI to Plaintiffs, including earlier-in-time emails. In
addition, the parties are directed to meet and confer and seek to
agree to terms of a privilege log protocol. The parties will file
to the ECF docket the agreed-upon privilege log protocol, for
approval by the Court. If the parties are unable to agree to the
terms of a privilege log protocol, then they will file to the ECF
docket their competing proposals.
A full-text copy of the Court's March 30, 2022 Opinion & Order is
available at https://tinyurl.com/2frcrup4 from Leagle.com.
TRANSCORE LP: Plaintiff Brewer's Bid to Remand Thomas Suit Denied
-----------------------------------------------------------------
In the case, JULIE E. THOMAS v. TRANSCORE, LP, et al., Civ. No.
1:21-CV-1040 (M.D. Pa.), Judge Sylvia H. Rambo of the U.S. District
Court for the Middle District of Pennsylvania denied without
prejudice Plaintiff Linda Brewer's motion for remand.
I. Background
Defendant Pennsylvania Turnpike Commission ("PTC") is a
transportation agency of the Commonwealth of Pennsylvania that
operates and maintains Turnpike and other roadways within
Pennsylvania. PTC in charge of operating the Pennsylvania
Turnkpike's E-ZPass system, an electronic tolling system that
automatically withdraws toll payments from customers' pre-paid
accounts. Various toll plazas along the Turnpike are equipped with
ZPass equipment that is used to electronically assess tolls on
users with E-ZPass transponders attached to their vehicles. PTC is
a member of the E-ZPass Group, which facilitates the use of the
E-ZPass system across multiple states, including Pennsylvania.
Users who obtain E-ZPass transponders from a participating state
agency may use them to travel on roadways operated by other states'
agencies, including the Turnpike.
Defendant Transcore is a Delaware limited corporation with a
principal place of business in Tennessee, which holds contracts
with the Commission to implement and maintain its tolling and EZ
Pass systems. Its duties on behalf of the Commission include
obtaining transaction data from the electronic tolling systems;
obtaining images of vehicle tags; obtaining violation images,
video, and data; and viding the functionality to inventory,
program, test, issue, recall, and track transponders.
In order to activate the E-ZPass account, the customer must provide
PTC with a driver's license and the license plate number that will
be associated with the transponder agree to automatically or
manually replenish their account. If the customer chooses to have
their account replenish automatically, they must agree to secure an
account with a credit card or ACH bank card and provide the card
information to PTC on the application. The card is then used to
automatically replenish the EZ-Pass account when it dips below $10,
at which point the customer's credit or bank card is charged a
minimum of $35 per transponder.
According to the complaint, Plaintiff Julie E. Thomas opened an
E-ZPass account with PTC in 2012 and regularly uses her transponder
while driving on the Turnpike and roads in and around Pennsylvania.
In June 2019, Thomas noticed that her bank account was being
debited more frequently by E-ZPass for replenishment of her
account, and she eventually discovered that the additional debits
did not coincide with the toll rate for her travel on the
Turnpike.
Upon discovering the discrepancies, Thomas contacted the E-ZPass
Electronic Toll Collection Customer Service Center to inquire about
the debits. The Service Center responded by "accusing Thomas,
without basis, of incorrectly mounting the transponder her
windshield." Yet it also informed her that the transponder for her
vehicle needed to be replaced. The Service Center thereafter
refunded some of Thomas's money back to her E-ZPass account, but
not to her bank account. It also sent Thomas a replacement
transponder, which appeared to be identical to her original one,
yet Thomas was still sporadically assessed V-TOLL debits against
her account despite the transponder being affixed to the same
location in her vehicle.
In November 2019, the Plaintiff again contacted the Service Center,
which refunded her additional money to her EZ-Pass Account, and
again claimed that the V-TOLL debits were caused by an
incorrectly-mounted transponder. A few days later, Thomas's E-ZPass
account was assessed even more V-TOLL debits, but since the account
was so inflated from prior refunds, she never received any
replenishment notifications. Despite Thomas's partial refunds, she
still has not received all the funds that were improperly debited
from her bank account, and the Defendants continue to earn interest
on those debits that were refunded to her E-ZPass account.
In April 2021, Thomas initiated the action by filing a putative
class action complaint in the Court of Common Pleas for Dauphin
County, asserting claims for breach of contract, fraudulent
misrepresentation, fraudulent concealment, negligent conversion,
unjust enrichment, and violations of the UTPCPL. According to the
complaint, the Defendants unlawfully charged Thomas, as well as
thousands of other drivers with transponders that were properly
affixed, excessive fees and penalties without any meaningful
warning or notice.
The complaint alleges that in many cases, the violations reported
by Defendants were actually caused by their own malfunctioning or
incompatible--Pass technology, and attempts by consumers to appeal
the fees run head long into a complicated dispute process and
customer service representatives who provide incorrect misleading
information. Even where a refund is secured, the complaint alleges,
the automatic replenishment feature of EZ-Pass means that the error
results in funds being transferred from the consumer's bank account
to their pre-paid EZ-Pass account, on which the Defendants earn
interest.
Thomas seeks judgment against Defendants for injunctive and
monetary relief on behalf of herself and the following class and
sub-classes:
(1) Unreimbursed Class -- All persons with a PTC E-ZPass
account who were assessed V-Toll debits and not refunded;
(2) Credit Card Class -- All persons who maintain an E-ZPass
through PTC and who were assessed V-Toll fees that were withdrawn
from their credit card and thereafter refunded by Defendants to
their E-Z pass accounts, thereby not receiving a full refund
because the money was not returned to their credit card and the
individual still had to pay interest on the amounts withdrawn from
the credit card;
(3) Bank Card Class -- All persons who maintain an E-ZPass
through PTC and who were assessed V-Toll fees that were withdrawn
from their debit card and refunded to their E-ZPass accounts,
thereby not receiving a full refund because the money was not
returned to their bank account and they were not compensated for
interest they would have earned from the funds while in their bank
accounts; and
(4) Out-of-State Account Holders: All persons who maintain an
EZ-Pass account through an out-of-state agency and were assessed
V-Tolls, and either not refunded the money for the tolls or
incurred additional expenses as a result of the policies of the
out-of-state agency.
After the complaint was filed, the Defendants removed the action to
the Court. The Plaintiff has filed a motion for remand under 28
U.S.C. Section 1332(d)(4)(A)-(B), which has been fully briefed and
is ripe for review.
II. Discussion
Judge Rambo finds that the Plaintiff has not shown that the case
should be remanded under Section 1332(d)(4)(B), which requires a
district court to decline to exercise jurisdiction over a class
action where primary defendants, as well as two-thirds or more of
all proposed class members, are citizens of the State in which the
action was originally filed. The complaint names as Defendants the
PTC and TransCore, which is not a Pennsylvania citizen. The
Plaintiff makes substantive argument that Transcore does not have
potential exposure to a significant portion of the class, and she
does not seriously contend that TransCore would not sustain a
substantial loss as compared to the PTC if found liable. Because
she has failed to show TransCore is not the "real target" of their
allegations, Judge rambo says remand is inappropriate under the
section.
The same is true with respect to Section 1332(d)(4)(A), which
requires a district court to decline to exercise jurisdiction over
a class action if four requirements are met. First, more than
two-thirds of the members of all proposed plaintiff classes in
aggregate must be citizens of the state in which the action was
originally filed. Second, at least one defendant rom whom
significant relief is sought by class members and whose alleged
conduct forms significant basis for the claims must be a citizen of
the state in which the action was originally filed. Third, the
principal injuries resulting from the alleged conduct or any
related conduct of each defendant must have been incurred in the
state in which the action originally filed. Fourth, there must not
have been another class action filed asserting same or similar
claims against any of the defendants during the three-year period
preceding the filing of the action.
In the case, the Plaintiff's motion for remand fails to satisfy the
first requirement of Section 1332 (d)(4)(B) because it offers no
evidence that more than two-thirds of the members of the proposed
total class are citizens of Pennsylvania. The Plaintiff relies on
conclusions to argue that the two-thirds threshold is met, but the
Court cannot simply assume the citizenship of those who have driven
on Pennsylvania's toll roadways.
Despite the Plaintiff's failure to satisfy her burden under Section
1332(d)(4)(B), basic notions of fairness support her request for
limited discovery on the matter. Judge Rambo finds that the
Plaintiff's motion makes plausible arguments that the putative
class satisfies the two-thirds requirement, and it convincingly
shows that the information she seeks is within the exclusive
control of Defendants themselves.
III. Conclusion
Accordingly, Judge Rambo denied the Plaintiffs' motion for remand
without prejudice and granted her request for a brief discovery
period on the limited issue of whether she can satisfy the
citizenship requirement under Section 1332(d)(4)(B). At the close
of days, or after the discovery is complete, the Plaintiff may
refile her motion for remand. All other discovery will be stayed
for that period of time, and until such time as the Court decides
whether remand is appropriate.
A full-text copy of the Court's March 30, 2022 Memorandum is
available at https://tinyurl.com/3hnwpz25 from Leagle.com.
UNITED STATES: Navy Seals' Bid for Class Status Granted in Part
---------------------------------------------------------------
In the class action lawsuit captioned as U.S. NAVY SEALs 1–26, et
al., v. LLOYD J. AUSTIN, III, et al., Case No. 4:21-cv-01236-O
(N.D. Tex.), the Hon. Judge Reed O'Connor entered an order:
1. granting in part the Plaintiffs' Motion for Class
Certification as to the Navy Class, NSW/SO Subclass, and
SEALs Subclass, subject to the amended class definitions
removing unascertainable language;
2. appointing Plaintiffs' counsel as class counsel under Rule
23(g);
3. granting the Plaintiffs' Motion for Class-Wide Preliminary
Injunction;
4. enjoining the Defendants from applying MANMED section 15-
105(3)(n)(9); NAVADMIN 225/21; Trident Order No. 12; and
NAVADMIN 256/21 to members of the Navy Class and
Subclasses; and
5. immediately staying in part the class-wide injunction,
"insofar as it precludes the Navy from considering
respondents' vaccination status in making deployment,
assignment, and other operational decisions."
The Court said, "The Defendants have repeatedly argued that the
Plaintiffs can only speculate as to the final outcome of the
appeals proceedings. But the Plaintiffs are statistically far more
likely -- in fact, almost guaranteed -- to be denied a religious
accommodation request than to contract a severe case of COVID-19.
The Plaintiffs' vaccinated colleagues are becoming infected and
contributing towards the "massive loss of time and readiness" that
the Navy fears. The Defendants' claims that the unvaccinated class
members "present an unacceptable risk to naval operations" is
hyperbolic, especially because these servicemembers successfully
carried out their tasks in the pre-vaccine era of the pandemic.
Since this Court issued its January preliminary injunction order,
COVID-19 cases have dropped dramatically worldwide. The Navy's
interest in vaccinating the remaining 0.6% of its personnel -- or
less -- does not outweigh the harm the Plaintiffs are facing as
they try to exercise their constitutional rights. Thus, the Court
finds that the class members have satisfied the final two
requirements for preliminary injunction."
On January 3, 2022, the Court granted Plaintiffs' Motion for
Preliminary Injunction, enjoining enforcement of the Navy's
COVID-19 vaccination policies against the thirty-five Plaintiffs,
who object to the vaccine on religious grounds.
On January 24, 2022, the Defendants filed a Motion to Stay the
injunction, asking the Court to allow Defendants to consider
Plaintiffs' vaccination status when making assignment decisions,
including those involving deployment and training. The Court denied
Defendants' Motion on February 13, 2022.
The Defendants appealed, and the Fifth Circuit likewise denied the
Motion to Stay. On March 7, the Defendants submitted an Application
for Partial Stay to the Supreme Court.
The Supreme Court granted the partial stay of the preliminary
injunction, "insofar as it precludes the Navy from considering
respondents' vaccination status in making deployment, assignment,
and other operational decisions."
A copy of the Court's order dated March 28, 2022 is available from
PacerMonitor.com at https://bit.ly/3xwKh2M at no extra charge.[CC]
VMSB LLC: Bid to certify Class Denied as Moot in Rossell Suit
-------------------------------------------------------------
In the class action lawsuit captioned as ISRAEL ROSELL and ROBERTO
GONZALEZ, Plaintiffs, v. VMSB, LLC, d/b/a GIANNI’S and d/b/a CASA
CASUARINA, Case No. 20-20857-CIV-WILLIAMS (S.D. Fla.), the Hon.
Judge Kathleen M. Williams entered an order that:
1. The Chief Magistrate Judge Edwin G. Torres' Report and
Recommendation is affirmed and adopted.
2. The Plaintiffs' motion to certify class is denied as moot.
In the Report, the Magistrate Judge Torres recommended that
Plaintiffs' motion be denied.
A copy of the Court's order dated March 28, 2022 is available from
PacerMonitor.com at https://bit.ly/37owJMf at no extra charge.[CC]
WAL-MART ASSOCIATES: Rodriguez Seeks to Certify Class of Employees
------------------------------------------------------------------
In the class action lawsuit captioned as CECILIA RODRIGUEZ and
BREANA STEWART, on behalf of themselves and all others similarly
situated, v. WAL-MART ASSOCIATES, INC., a Delaware limited
liability company; and DOES 1 to 100, inclusive, Case No.
2:20-cv-07045-AB-KK (C.D. Cal.), the Plaintiffs ask the Court to
enter an order:
1. certifying the following Class 1 -- Off Premise Rest
Class:
"All California based hourly-paid nonexempt employees
employed by Defendant (excluding Defendant's Distribution
Centers, Fulfillment Centers and Warehouses) during the
time period from July 29, 2016, to June 8, 2020 to whom
the Defendant did not provide an off premise rest period
(or a one hour payment for any violations)"; and
2. appointing their counsel as class counsel.
The Plaintiff Rodriguez alleges that Wal-Mart violated its
obligation to authorize and permit rest periods. The Plaintiff's
claim is well suited for class treatment because this is a simply a
policy case. The main issue is whether Defendant's on-premise rest
period policy and failure to pay rest period premiums without
completing a California Rest Break/Meal Period Investigation
Worksheet are lawful. It is undisputed that these policies apply to
all of the Class Members, and the only question is whether
Defendant's policies are legal, the lawsuit says.
Wal-Mart is a nationwide store that sells a wide variety of
products to its customers. During the class period, from July 29,
2016 to June 8, 2020, Wal-Mart employed approximately 293,700
hourly-paid, non-exempt employees in California.
A copy of the Plaintiffs' motion to certify class dated March 28,
2022 is available from PacerMonitor.com at https://bit.ly/3OfqHxU
at no extra charge.[CC]
The Plaintiffs are represented by:
Kevin T. Barnes, Esq.
Gregg Lander, Esq.
LAW OFFICES OF KEVIN T. BARNES
1635 Pontius Avenue, Second Floor
Los Angeles, CA 90025-3361
Telephone: (323) 549-9100
Facsimile: (323) 549-0101
E-mail: Barnes@kbarnes.com
- and -
Raphael A. Katri, Esq.
LAW OFFICES OF RAPHAEL A. KATRI
8549 Wilshire Boulevard, Suite 200
Beverly Hills, CA 90211-3104
Telephone: (310) 940-2034
Facsimile: (310) 733-5644
E-mail: RKatri@socallaborlawyers.com
WELLS FARGO: Court Grants Bid to Dismiss McCraner Class Suit
------------------------------------------------------------
In the case, JOHN McCRANER, SHARON STIANSEN, JANET POLLARD, MICHAEL
DARLINGTON, SUSAN R. LANDREAU, JOHN N. TUFFIELD, individually and
on behalf of all others similarly situated, Plaintiffs v. WELLS
FARGO & COMPANY, a corporation, WELLS FARGO BANK, N.A., a national
banking association, Defendants, Case No. 21cv1246-LAB-LL (S.D.
Cal.), Judge Larry Alan Burns of the U.S. District Court for the
Southern District of California granted Wells Fargo's Motion to
Dismiss and denied as moot Wells Fargo's Motion to Strike.
I. Background
Phillip Peikos, David Barnett, Brian Phillips, Richard Fowler, Ryan
Fowler, and Nathan Martinez (collectively, the "Principals")
operated three separate online subscription scams through their
companies Apex Capital Group, LLC, controlled by Peikos and
Barnett, Triangle Media Corp., controlled by Phillips, and Tarr
Inc. (collectively, the "Enterprises"), controlled by the Fowlers
and Martinez. Each of the Enterprises relied on banking services
from defendants Wells Fargo & Company and Wells Fargo Bank, N.A.
(together, "Wells Fargo" or the "Bank") to effect their fraudulent
schemes.
The Enterprises allegedly defrauded Plaintiffs John McCraner,
Sharon Stiansen, Janet Pollard, Michael Darlington, Susan R.
Landreau, and John N. Tuffield. The Plaintiffs filed the putative
class action against Wells Fargo asserting four claims: Aiding and
abetting fraud; conspiracy to commit fraud; violation of Cal. Penal
Code Section 496; and violation of Cal. Bus. & Prof. Code Section
17200. Wells Fargo moves to dismiss each claim.
II. Discussion
A. The Complaint Fails to Allege the Knowledge Necessary for the
Plaintiffs' First Three Claims
Judge Burns explains that each of the Plaintiffs' first three
claims -- aiding and abetting fraud, conspiracy to commit fraud,
and violation of Cal. Penal Code Section 496 through receipt of
stolen property -- require allegations that Wells Fargo had actual
knowledge of the fraud against the Plaintiffs. For aiding and
abetting, the defendant must have "actual knowledge of the specific
primary wrong that it substantially assisted." For conspiracy, the
defendant "must have actual knowledge that a tort is planned and
concur in the scheme with knowledge of its unlawful purpose." And
for violations of Cal. Penal Code Section 496 involving receipt of
stolen funds, the defendant must know that the funds are stolen --
it's not enough to allege or prove that the defendant knew "that
the legality of the challenged transaction was doubtful."
A plaintiff can state a claim by alleging circumstantial facts
that, if proven, would support the same inference. But allegations
supporting only the inference that the defendant "should have
known" aren't enough. Judge Burns holds that the Complaint doesn't
meet this standard. He can't find, on such equivocal allegations,
that Wells Fargo "must have known" that the Enterprises were
defrauding consumers. Without that knowledge, Wells Fargo can't
have known of the specific primary wrong it allegedly aiding and
abetting, it can't have known that the Enterprises planned to
defraud the Plaintiffs and concurred in that scheme as necessary
for conspiracy, and it can't have known that the funds deposited
into the Enterprises' accounts were stolen under Cal. Penal Code
Section 496.
Hence, the Complaint fails to state each of these claims as a
result, so they are dismissed without prejudice.
B. The Complaint Fails to State a Claim under California's Unfair
Competition Law
The Plaintiffs' final claim seeks relief under California's Unfair
Competition Law ("UCL"). That statute prohibits "unlawful, unfair
or fraudulent business acts and practices." The Complaint alleges
that Wells Fargo is liable only because of its "substantial
assistance in unlawful business acts and practices" including
"inter alia, aiding and abetting fraud, conspiring to commit fraud,
and violating California Penal Code Section 496." This assistance,
the Plaintiffs allege, amounts to "aiding and abetting" a UCL
violation.
Judge Burns states that UCL liability under such a theory requires
allegations that Wells Fargo "knew the Enterprises'] conduct
constituted a breach." And as he discussed, the Complaint fails to
allege that Wells Fargo knew the Enterprises were engaged in any
misconduct toward Plaintiffs. Because the Plaintiffs haven't
alleged that knowledge, their UCL claim is dismissed without
prejudice.
III. Conclusion
Judge Burns granted Wells Fargo's Motion to Dismiss. The Complaint
is dismissed without prejudice. The Plaintiffs may amend their
pleading without further leave within 21 days of the Order.
Wells Fargo's Motion to Strike seeks to strike allegations from a
now-dismissed pleading, so that Motion is denied as moot.
A full-text copy of the Court's March 30, 2022 Order is available
at https://tinyurl.com/5x9e7chw from Leagle.com.
WYNNDALCO ENTERPRISES: Wins Cross-Bid for Judgment in Citizens Suit
-------------------------------------------------------------------
In the case, CITIZENS INSURANCE COMPANY OF AMERICA, a Michigan
corporation, Plaintiff v. WYNNDALCO ENTERPRISES, LLC; an Illinois
limited liability company; DAVID ANDALCIO; JOSE FLORES; MELISSA
THORNLEY; DEBORAH BENJAMIN-KOLLER; and JOSUE HERRERA; individually
and on behalf of all others similarly situated; and MARIO CALDERON
and JENNIFER ROCIO, individually and on behalf of all others
similarly situated, Defendant, Case No. 20 C 3873 (N.D. Ill.),
Judge John Z. Lee of the U.S. District Court for the Northern
District of Illinois, Eastern Division:
(i) denied Citizens' motion for judgment on the pleadings;
and
(ii) granted Wynndalco's cross-motion for judgment on the
pleadings.
I. Background
Plaintiff Citizens sold a business liability insurance policy to
Defendant Wynndalco. While the policy was in effect, Wynndalco was
sued in two separate class action lawsuits (Thornley v. CDW-Gov't,
LLC, No. 2020 CH 04346 (Cir. Ct. Cook Cnty. May 27, 2020) and
Calderon v. Clearview AI, Inc., No. 1:20-cv-01296-CM (S.D.N.Y. July
22, 2020)) for allegedly selling biometric information in violation
of the Illinois Biometric Information Privacy Act ("BIPA"), 740
Ill. Comp. Stat. 14/1 et seq.
The litigation that prompted the insurance coverage dispute
involves the secret collection of more than three billion facial
scans by Clearview AI, an artificial intelligence company that
specializes in facial recognition software. Clearview AI allegedly
extracted, or "scraped," photographs from social media and content
sharing platforms like Facebook, Twitter, Instagram, YouTube, and
Venmo to create a database of facial scans ("Clearview Database").
Clearview AI also created a facial recognition application that
allows its customers to identify individuals by comparing facial
pictures they take to the Clearview Database. Wynndalco, an
information technology ("IT") services and consulting firm,
licensed and sold access to the Clearview Database and Clearview
App to customers in Illinois.
Melissa Thornley and Mario Calderon, on behalf of themselves and
others similarly situated, each filed class action lawsuits (the
"Thornley Lawsuit" and the "Calderon Lawsuit;" together, the
"Lawsuits") against Wynndalco, alleging that Wynndalco had violated
BIPA—an Illinois statute that regulates the collection,
disclosure, retention, and destruction of biometric information, by
selling Clearview's products in Illinois.
In turn, Wynndalco and its officers, David Andalcio and Jose
Flores, notified Citizens of the lawsuits and requested defense
under the insurance policy. Citizens then filed the present
lawsuit, seeking a declaratory judgment that the policy does not
cover the two underlying lawsuits. Wynndalco filed a counterclaim
seeking the opposite.
Now Citizens and Wynndalco have filed cross-motions for judgment on
the pleadings.
II. Discussion
As a preliminary matter, the parties agree that Illinois law
applies. Furthermore, all material facts are undisputed, and
Citizens does not contest that, if it has a duty to defend
Wynndalco, it also must defend its officers. With that, Judge Lee
turns to the question at hand, namely, whether the policy Citizens
issued to Wynndalco provides coverage for the defense of the
Lawsuits. To answer this question, he must look to the language of
the insurance policy.
In the case, the dispute focuses on whether the Statutory Violation
exclusion precludes coverage for the Lawsuits. Judge Lee begins
with the language of the exclusion. As noted, the Statutory
Violation exclusion disavows coverage for "personal and advertising
injury arising directly or indirectly out of any action or omission
that violates or is alleged to violate the TCPA, CAN-SPAM, FCRA, or
FACTA or any other laws, statutes, ordinances, or regulations that
address, prohibit or limit the printing, dissemination, disposal,
collecting, recording, sending, transmitting, communicating or
distribution of material or information.
Citizens argues, as an initial matter, that this language is not
ambiguous because BIPA is a "statute" that regulates the
"dissemination, disposal, collecting, recording, sending,
transmitting, communicating or distribution of material or
information." But the Supreme Court of Illinois recently held that
a nearly identical provision was ambiguous, citing W. Bend Mut.
Ins. Co. v. Krishna Schaumburg Tan, Inc., ___ N.E.3d ___, 2021 WL
2005464, at *10 (Ill. May 20, 2021). As an authoritative
construction of Illinois law by the state's highest court,
Krishna's holding is binding on the Court unless it can be
distinguished.
Citizens' attempt to do so is not persuasive. First, Judge Lee is
not convinced that the difference in the titles makes these
exclusions substantively different. He refuses to adopt such a
nonsensical reading of the Policy. Further, in the case, the
exclusion also includes FCRA and FACTA. Neither of these statutes
are directed towards regulating methods of communication.
Because the language of the exclusion is ambiguous on its face,
Judge Lee turns, as did the Supreme Court of Illinois in Krishna,
to canons of statutory construction for guidance. Unfortunately,
these are of limited utility. Krishna employed ejusdem generis,
which counsels that, "where general words follow specific words the
general words are usually construed to embrace only objects similar
in nature to those objects enumerated by the preceding specific
words."
The Krishna court found that BIPA did not fall within the catchall
because, unlike the TCPA and the CAN-SPAM Act, BIPA does not
regulate "methods of communication." In the case, however, the
exclusion also includes FCRA and FACTA. Neither of these statutes
are directed towards regulating methods of communication. Thus, the
interpretive tool of ejusdem generis is unhelpful in the present
case, because ejusdem generis requires the general term to share a
characteristic that is common to all the specific terms.
But, even if the Court were to apply ejusdem generis, the result is
not what Citizens advocates. According to Citizens, the application
of ejusdem generis shows that BIPA is "like" the TCPA, CAN-SPAM
Act, FCRA, and FACTA because "those statutes all protect privacy
interests generally, and BIPA and the FCRA/FACTA more specifically
protect against identity theft." To support its ejusdem generis
argument, Citizens points to Massachusetts Bay Insurance Co. v.
Impact Fulfillment Services, LLC, No. 1:20CV926, 2021 WL 4392061
(M.D.N.C. Sept. 24, 2021). That case applied ejusdem generis to
hold that BIPA fell within a nearly identical exclusion, which
listed the TCPA, the CAN-SPAM Act, FCRA, and FACTA as specific
examples followed by a catchall term.
But the Massachusetts Bay court did not grapple with the
distinction between the two types of privacy that are implicated in
the enumerated statutes—privacy of personal information (as
concerns FCRA and FACTA), versus privacy from unwanted
communications (as concerns the TCPA and the CAN-SPAM Act). Thus,
Judge Lee respectfully disagrees with the holding in Massachusetts
Bay. Nor does the noscitur a sociis canon (a broader relative of
ejusdem generis) add clarity. That rule provides that "a word is
known by the company it keeps," or, in other words, an ambiguous
term should be read to mean something similar to the words that
surround it.
With neither the plain text nor these canons of construction
pointing to a clear meaning, Judge Lee concludes that the Statutory
Violation exclusion is intractably ambiguous. Thus, Citizens has
not met its burden to "affirmatively establish" that the exclusion
applies, much less that its application is "clear and free from
doubt," as it must in order to rebut Wynndalco's initial showing of
coverage.
Accordingly, the BIPA claims in the Thornley and Calderon Lawsuits
trigger Citizens' duty to defend Wynndalco. Moreover, because
Citizens has a duty to defend Wynndalco with respect to the BIPA
claims, it also has a duty to defend Wynndalco with respect to the
common law claims in the Thornley Lawsuit.
III. Conclusion
For the foregoing reasons, Judge Lee granted Wynndalco's motion for
judgment on the pleadings, and denied as moot Citizens' motion for
judgment on the pleadings. He holds that the Policy covers the
Thornley and Calderon Lawsuits and that Citizens has a duty to
defend Wynndalco and its officers, David Andalcio and Jose Flores,
against the Thornley and Calderon Lawsuits.
A full-text copy of the Court's March 30, 2022 Memorandum Opinion &
Order is available at https://tinyurl.com/bdz39wdy from
Leagle.com.
XTO ENERGY: Must File Response to Class Cert. Bid by April 27
-------------------------------------------------------------
In the class action lawsuit captioned as SALVATORA et al v. XTO
ENERGY INC., Case No. 2:19-cv-01097 (W.D. Pa.), the Hon. Judge
Cynthia Reed Eddy entered an order that the Defendant shall file a
Response to the amended motion to certify class on or before April
27, 2022.
The nature of suit diversity-contract dispute.
XTO is an American energy company, principally operating in North
America, specializing in the drilling and production of
unconventional oil and natural gas assets, typically from shale
rock through a process known as hydraulic fracturing. It is a
subsidiary of ExxonMobil.
A copy of the Court's order dated March 28, 2022 is available from
PacerMonitor.com at at no extra charge.[CC]
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