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C L A S S A C T I O N R E P O R T E R
Monday, May 30, 2022, Vol. 24, No. 101
Headlines
ADAMAS PHARMACEUTICALS: Faces Zaidi Securities Suit in CA Court
ADVANCED DRAINAGE: Selby Seeks Reconsideration of May 2 Order
ALEJANDRO MAYORKAS: Court Tosses Bid for Class Status as Moot
AMERICAN CAMPUS: Extension of Time to Brief Class Cert. Sought
AMERICAN CAMPUS: Perna, et al., Must File Class Cert Bid by June 6
AMERICAN HONDA: Deadline to File Class Cert. Extended to July 28
AUTO-OWNERS INSURANCE: Mason's Automotive Files Class Cert. Bid
BEND MEMORIAL: Discovery & PTO Deadlines Extended
BRIGHTHOUSE LIFE: Faces Martin Class Suit in Georgia
BRIGHTHOUSE LIFE: Faces Newton Class Suit in Georgia
BUFFALO WILD: Seeks to Stay Response Deadline for Class Cert Bid
CALIFORNIA STATE: Striking of Class Claims in Doe Suit Affirmed
CALIFORNIA: Dismissal of 640 Tenth's Complaint v. Newsom Affirmed
CALIFORNIA: Must File Oppositions in Dunsmore Suit Until May 31
CEDAR REALTY: Faces Kim Securities Suit in Maryland Court
CEDAR REALTY: Faces Sydney Securities Suit in MD Court
CENTURY INT'L: CMP & Scheduling Order Entered in Abreu Class Suit
CINEMARK USA: Faces Neal FACTA Suit in California Court
COMPUTER HAUS: Loses Summary Judgment v. Jahagirdar
CVS PHARMACY: Court Tosses Mier's Bid to Certify Class
DARLING INGREDIENTS: Loses Bid to Enforce Subpoena in Sines Suit
DIAMOND TECHNICAL: Class Settlement in Gunter Suit Gets Final Nod
DISTRICT OF COLUMBIA: Wins Partial Dismissal of Amended Lewis Suit
DOLGEN CALIFORNIA: Gallegos Seeks to Certify 7 Subclasses
DONG BANG: Lee Seeks Conditional Status of Collective FLSA Class
EMBARK TECHNOLOGY: Faces Hardy Shareholder Suit in California Court
EYEMED VISION: Amended Calendar Order Entered in Tate Class Suit
FENNEC PHARMACEUTICALS: Faces Chapman Shareholder Suit in NC Court
FENNEC PHARMACEUTICALS: Faces Fisher Shareholder Suit in NC Court
FORD MOTOR: Punitive Damages Awards in Nolan Suit Reduced to $537K
FOURPOINT ENERGY: Rounds Suit Seek to Certify Settlement Classes
FSM ZA: Patzfahl Seeks to Certify Class of Delivery Drivers
GEICO CHOICE: Class Cert. Deadlines Entered in Jones Suit
GEICO CHOICE: Class Cert. Deadlines Entered in Purcell Suit
GENERAL MOTORS: Interim Class Counsel Appointed in Harrison Suit
GOLDEN RULE: Court Denies Bid to Certify Class in Smith Suit
GOYA FOODS: Ortiz Labor Suit Seeks Class Certification
HOLTZMAN ENTERPRISES: Reply in Support of Class Cert Due August 30
HOMELAND SECURITY: Court Dismisses Fraihat Claims in Lewis v. Wolf
INTEGRATED TECH: Collective Settlement Deal Gets Final Nod
JENNMAR CORP: Ct. Certifies Class, Subclasses in Stacy Labor Suit
KANGMEI PHARMACEUTICAL: Pays US$364MM to Investors in Class Suit
KELLER WILLIAMS: Court Tosses Bid to Certify Class as Moot
KELLER WILLIAMS: St. John Seeks to Certify Class
KOTOBUKI RESTAURANT: Yu, et al., Seek to Certify Class Action
LINEAGE CELL: To Settle Ross Securities Suit
MARRIOTT INTERNATIONAL: Bid to Amend Class Cert Deadlines OK'd
MARUGAME UDON: Filing of Class Status Bid Extended to Dec. 6
MARUGAME UDON: Redick ADA Suit Seeks Class Certification
MDL 2951: Arbitration & Dismissal Bid in Stubhub Refund Suit Denied
MHC HERITAGE: Noel, et al., Seek Rule 23 Class Certification
MOMENTUS INC: Faces Depoy Securities Suit in California Court
MOMENTUS INC: Faces Haenisch Securities Suit in California Court
MOMENTUS INC: Faces Hall Securities Suit in California
MOMENTUS INC: Faces Jensen Securities Suit in California Court
NATIONAL ASSOCIATION: Appeals Class Cert. Ruling in Sitzer Suit
NEONODE INC: Shareholder Suit in Delaware Dismissed w/ Prejudice
NEUBASE THERAPEUTICS: Shareholder Suit in NY Court Dismissed
NEW ORIENTAL: Bernstein Named Lead Counsel in Securities Class Suit
NEW TSI: CMP, Scheduling Order Entered in Rose Class Action
NEW YORK DOC: Allen, et al., Seek to Certify Classes
NORTHERN NATURAL: De Leon Seeks Authorization to Send Notice
NUTRAMAX LABORATORIES: Lytle, et al., Win Class Certification Bid
ON24 INC: Faces Consolidated Shareholder Suit in California Court
ORACLE CORPORATION: Court Grants UAMH Bid for Class Status
OREGON: Two Classes Certified in Maney, Stay Lifted in Blewett
OREGON: Two Classes Certified in Maney, Stay Lifted in Bobo
OREGON: Two Classes Certified in Maney, Stay Lifted in Coronado
OREGON: Two Classes Certified in Maney, Stay Lifted in Coyle
OREGON: Two Classes Certified in Maney, Stay Lifted in Sissell
OS RESTAURANT: Conditional Cert. of Collective Action Partly OK'd
PEOPLECONNECT INC: Class Certification Briefing Schedule Entered
PFIZER INC: Faces Product Liability Suits Over Chantix
PFIZER INC: Faces Product Liability Suits Over Lipitor
PFIZER INC: Faces Product Liability Suits Over Zantac
PFIZER INC: Faces Shareholder Suit Over Merger Deal
PHILADELPHIA SCHOOL DISTRICT: Sargent Loses Class Certification Bid
PUBLIC PARTNERSHIPS: Court Certifies Class of Care Workers
RAVI ZACHARIAS: Court Grants in Part Bids to Dismiss Carrier Suit
RENOVACARE INC: Faces Boller Shareholder Suit in NJ Court
RENTGROW INC: First Cir. Affirms Summary Judgment in McIntyre Suit
RIVIAN AUTOMOTIVE: Faces Class Suit Over IPO
RIVIAN AUTOMOTIVE: Faces Securities in California Court
RIVIAN AUTOMOTIVE: Faces Shareholder Suit in California Court
RUTTER'S INC: Class Cert. Sought in Data Security Breach Suit
S.C. JOHNSON: July 21 Continuance of Class Cert. Hearing Sought
SANTANDER CONSUMER: Certified Question of Law in Lyles Answered
SWEDISH HEALTH: Court Enters Briefing Schedule in Adan Class Suit
SYNGENTA AG: 10th Cir. Reverses Summary Judgment in DeLong Suit
TEAM INDUSTRIAL: Settlement Deal Reached in California Class Suit
UNKNOWN BURGESS: Curtis Loses Class Certification Bid
VASCULAR ASSOCIATES: Conditional Cert of Collective Action Sought
VENTURA COUNTY, CA: White Seeks to Certify Class Action
VI-JON LLC: Discovery Responses in Macormic Suit Partly Compelled
VOYAGER DIGITAL: Cassidy Loses Class Certification Bid
WALMART INC: Ct. Amends Briefing Schedule in Powell Class Suit
WOLVERINE WORLD WIDE: Faces Product Liability Suits in MI Court
ZEETO LLC: June 6 Extension to File Class Cert. Bid Sought
*********
ADAMAS PHARMACEUTICALS: Faces Zaidi Securities Suit in CA Court
---------------------------------------------------------------
Supernus Pharmaceuticals, Inc. disclosed in its Form 10-Q Report
for the quarterly period ended March 31, 2022, filed with the
Securities and Exchange Commission on May 12, 2022, that its
subsidiary, Adamas, is facing a putative class action lawsuit filed
in December 10, 2019, alleging violations of the federal securities
laws.
Said action was filed by Ali Zaidi against Adamas Pharmaceuticals,
Inc. and certain of its former directors and officers in federal
court in the Northern District of California (Case No.
4:19-cv-08051).
This lawsuit alleges violations of the Securities Exchange Act of
1934 by Adamas and certain of Adamas's former directors and
officers. On October 8, 2021, the presiding judge dismissed the
litigation, and granted Plaintiffs leave to amend their complaint.
On November 5, 2021, Plaintiffs filed their second amended class
action complaint. On December 10, 2021, Adamas filed a motion to
dismiss the Second Amended Complaint. Plaintiffs opposed the motion
to dismiss. The motion to dismiss remains pending.
Supernus Pharmaceuticals, Inc. is a biopharmaceutical company
focused on developing and commercializing products for the
treatment of central nervous system diseases based in Maryland.
ADVANCED DRAINAGE: Selby Seeks Reconsideration of May 2 Order
-------------------------------------------------------------
In the class action lawsuit captioned as RONNIE LOSCHIAVO & SHAWN
SELBY, on behalf of themselves and others similarly situated, v.
ADVANCED DRAINAGE SYSTEMS, INC., Case No. 2:21-cv-05069-MHW-CMV
(S.D. Ohio), the Plaintiffs ask the Court to enter an order
granting their motion and reconsidering the portion of its Opinion
and Order from May 2, 2022 denying conditional certification for
locations at which they and Declarants did not themselves work (and
even one location where they did work).
The Plaintiffs contain that the Order contained several clear
errors of law that, if unchanged, would create manifest injustice
by improperly and severely raising the lenient, modest burden at
the conditional certification stage.
Advanced Drainage designs, manufactures and markets polypropylene
and polyethylene pipes, plastic leach field chambers and systems,
septic tanks and accessories, storm retention/detention and septic
chambers, polyvinyl chloride drainage structures, fittings, and
water filters and water separators.
A copy of the Plaintiffs' motion dated May 11, 2022 is available
from PacerMonitor.com at https://bit.ly/3lJn1Ym at no extra
charge.[CC]
The Plaintiffs are represented by:
Matthew J.P. Coffman, Esq.
Adam C. Gedling, Esq.
Kelsie N. Hendren, Esq.
COFFMAN LEGAL, LLC
1550 Old Henderson Rd., Suite No. 126
Columbus, OH 43220
Telephone: (614) 949-1181
Facsimile: (614) 386-9964
E-mail: mcoffman@mcoffmanlegal.com
agedling@mcoffmanlegal.com
khendren@mcoffmanlegal.com
- and -
Matthew B. Bryant, Esq.
Daniel I. Bryant, Esq.
BRYANT LEGAL, LLC
1550 Old Henderson Road, Suite 126
Columbus, OH 43220
Telephone: (614) 704-0546
Facsimile: (614) 573-9826
E-mail: dbryant@bryantlegalllc.com
Mbryant@bryantlegalllc.com
ALEJANDRO MAYORKAS: Court Tosses Bid for Class Status as Moot
--------------------------------------------------------------
In the class action lawsuit captioned as Casa Libre Freedom House,
et al., v. Alejandro Mayorkas, et al., Case No.
2:22-cv-01510-ODW-JPR (C.D. Cal.), the Hon. Judge Otis D. Wright
entered an order denying as moot motion for class certification and
setting class certification deadline as follows:
1. Effect of Stipulation on Motion to Certify Class
The court denies as moot Plaintiffs' motion to certify
class. This denial is without prejudice to any issues
raised. The Court orders that the Plaintiff's future
Motion to Certify Class is due no later than 120 days from
the date of the Court's ruling on Defendants' forthcoming
Motion to Dismiss.
2. Briefing Schedule for Motion to Dismiss
The parties propose an extended briefing schedule for
the Defendants' forthcoming Motion to Dismiss. The
proposed briefing schedule is more elongated than this
Court typically allows, even with a showing that the
issues raised by a motion are complicated. To partially
accommodate the parties, the Court orders that the
Defendants' motion to Dismiss must be filed at least 35
days prior to the selected hearing date. The effect of
this is to give Plaintiffs two weeks to oppose.
A copy of the Court's order dated May 6, 2022 is available from
PacerMonitor.com at https://bit.ly/3a4HhRx at no extra charge.[CC]
AMERICAN CAMPUS: Extension of Time to Brief Class Cert. Sought
--------------------------------------------------------------
In the class action lawsuit captioned as MONIQUE PERNA and JAKE
PERNA, individually and on behalf of all others similarly situated,
v. AMERICAN CAMPUS COMMUNITIES, INC., Case No.
3:20-cv-00846-MMH-LLL (M.D. Fla.), the Plaintiffs move for a
reciprocal 30-day extension of time for the parties to brief Class
Certification.
The 30-day extension would bring the Plaintiffs' deadline to file
their Motion for Class Certification to June 6, 2022, and
Defendant's Response would be due July 21, 2022.
On August 20, 2021, the Plaintiff filed the Second Amended
Complaint. On September 10, 2021, the Defendant filed its Motion to
Dismiss Plaintiff's Second Amended Complaint.
On October 1, 2021, the Plaintiff filed a Response to Defendant's
Motion to Dismiss Plaintiff's Second Amended Complaint. On February
8, 2022, this Court entered an Order for Plaintiff to file their
Motion for Class Certification by May 6, 2022.
American Campus is the largest developer, owner and manager of
student housing communities in the United States. It is
headquartered in Bee Cave, Texas, with an Austin postal address.
A copy of the Plaintiffs' motion dated May 6, 2022 is available
from PacerMonitor.com at https://bit.ly/3sQh53C at no extra
charge.[CC]
The Plaintiffs are represented by:
William "Billy" Peerce Howard, Esq.
Amanda J. Allen, Esq.
THE CONSUMER PROTECTION FIRM, PLLC
401 East Jackson Street, Suite 2340
Tampa, FL 33602
Telephone: (813) 500-1500
Facsimile: (813) 435-2369
E-mail: Amanda@TheConsumerProtectionFirm.com
Billy@TheConsumerProtectionFirm.com
Bonnie@TheConsumerProtectionFirm.com
AMERICAN CAMPUS: Perna, et al., Must File Class Cert Bid by June 6
------------------------------------------------------------------
In the class action lawsuit captioned as Perna, et al., v. American
Campus Communities, Inc., Case No. 3:20-cv-00846 (M.D. Fla.), the
Hon. Judge Laura Lothman Lambert entered an endorsed order granting
the Plaintiffs' unopposed motion to extend deadline for filing
motion for class certification:
-- The Plaintiffs shall have up to and including June 6, 2022
to file a motion for class certification.
-- The Defendant shall have up to and including July 21, 2022
to file a response to the motion for class certification.
-- All other deadlines and terms set forth in the Order
amending the Case Management and Scheduling Order remain in
effect.
The nature of suit states Other Statutes -- Other Statutory
Actions.
American Campus is a developer, owner and manager of student
housing communities in the United States.[CC]
AMERICAN HONDA: Deadline to File Class Cert. Extended to July 28
----------------------------------------------------------------
In the class action lawsuit captioned as RONDA ANN BROWNING, TONY
BOATWRIGHT, CHUEN YONG, and DANIEL PINA individually, and on behalf
of other members of the general public similarly situated, v.
AMERICAN HONDA MOTOR CO., INC., a California corporation, and HONDA
MOTOR COMPANY LTD., a Japanese corporation, Case No.
5:20-cv-05417-BLF (N.D. Cal.), the Parties submit stipulation an
proposed order extending time for plaintiffs to file their motion
for class certification:
-- The Plaintiffs' deadline to file their Motion for Class
Certification shall be July 28, 2023.
-- The Defendant's opposition due on September 16, 2023, and
the Plaintiffs' reply due October 16, 2023.
The American Honda Motor Company, Inc. is the North American Honda
subsidiary of the Honda Motor Company, Ltd.
A copy of the Court's order dated May 9, 2022 is available from
PacerMonitor.com at https://bit.ly/3PAhLnA at no extra charge.[CC]
The Plaintiffs are represented by:
Tarek H. Zohdy, Esq.
Cody R. Padgett, Esq.
Laura E. Goolsby, Esq.
CAPSTONE LAW APC
1875 Century Park East, Suite 1000
Los Angeles, CA 90067
Telephone: (310) 556-4811
Facsimile: (310) 943-0396
E-mail: Tarek.Zohdy@capstonelawyers.com
Cody.Padgett@capstonelawyers.com
Laura.Goolsby@capstonelawyers.com
The Defendants are represented by:
Amir Nassihi, Esq.
Joan R. Camagong, Esq.
SHOOK, HARDY & BACON L.L.P.
555 Mission St. Suite 2300
San Francisco, CA 94105
Telephone: (415) 544-1900
Facsimile: (415) 391-0281
E-mail: anassihi@shb.com
jcamagong@shb.com
- and -
Michael L. Mallow, Esq.
2049 Century Park East, #3000
Los Angeles, CA 90067
Telephone: (424) 285-8330
Facsimile: (424) 204-9093
E-mail: mmallow@shb.com
AUTO-OWNERS INSURANCE: Mason's Automotive Files Class Cert. Bid
---------------------------------------------------------------
In the class action lawsuit captioned as MASON'S AUTOMOTIVE
COLLISION CENTER, LLC, on behalf of itself and all similarly
situated persons and entities, v. AUTO-OWNERS INSURANCE COMPANY,
Case No. 2:21-cv-02153-PKH (W.D. Ark.), the Plaintiff asks the
Court to enter an order:
1. certifying a class under Rule 23 of the Federal Rules of
Civil Procedure:
"All persons or entities who have or had a commercial
property damage policy of insurance with AUTO-OWNERS at
any time from September 24, 2016 to the present', and who
received a payment for a property damage claim which
payment was reduced by the Coinsurance provisions of the
policy pursuant to a property valuation that included the
cost of foundations;"
2. appointing class representatives; and
3. appointing Class Counsel.
Alternatively, the Plaintiff seeks an Order from the Court
Certifying the following class:
"All Arkansas residents who have or had a commercial
property damage policy of insurance with AUTO-OWNERS at
any time from September 24, 2016 to the present, and who
received a payment for a property damage claim which
payment was reduced by the Coinsurance provisions of the
policy pursuant to a property valuation that included the
cost of foundations."
Auto-Owners Insurance Group is a mutual insurance company that
provides life, home, car and business insurance. Their policies are
sold exclusively through local, independent insurance agents within
their 26 operating states.
A copy of the Plaintiff's motion to certify class dated May 6, 2022
is available from PacerMonitor.com at https://bit.ly/3NvtodD at no
extra charge.[CC]
The Plaintiff is represented by:
Will T. Crowder, Esq.
Thomas P. Thrash, Esq.
THRASH LAW FIRM, P.A.
1101 Garland Street
Little Rock, AR 72201-1214
Telephone: (501) 374-1058
Facsimile: (501) 374-2222
E-mail: tomthrash®thrashlawfirmpa.com
willcrowder@thrashlawfinnpa.com
- and -
Phillip J. Milligan, Esq.
MILLIGAN LAW OFFICES
500 So. 16th Street
P.O. Box 2347
Fort Smith, AR 72902-2347
Telephone: (479) 783-2213
Facsimile: (479) 783-4329
E-mail: milliganlaw®sbcglobal.net
The Defendant is represented by:
Jamie Huffman Jones, Esq.
FRIDAY, ELDREDGE & CLARK, LLP
400 W. Capitol Ave., Ste. 2000
Little Rock, AR 72201-3493
Telephone: (501) 370-1430
Facsimile: (501) 244-5347
E-mail: jjones@fridayfirm.com
- and -
Lori McAllister, esq.
DYKEMA GOSSETT PLLC
201 Townsend Street, Suite 900
Lansing, MI 48933-1529
Telephone: (517) 374-9100
Facsimile: (855) 258-3519
E-mail: LMcAllister@dykema.com
BEND MEMORIAL: Discovery & PTO Deadlines Extended
-------------------------------------------------
In the class action lawsuit captioned as Fulkerson et al v. Bend
Memorial Clinic, et al., Case No. 6:20-cv-01579 (D. Or.), the Hon.
Judge Ann L. Aiken entered an order on motion for extension of
discovery & PTO deadlines as follows:
-- Class certification discovery Aug. 15, 2022
shall be completed by:
-- Expert reports as to class Aug. 31, 2022
certification are due by:
-- Depositions of class certification Nov. 4, 2022
experts shall be completed by:
-- The Plaintiffs' Motion for Class Nov. 14, 2022
Certification/Defendants' Motion
for Summary Judgment shall be
filed by:
-- The Defendants' Memorandum in Dec. 19, 2022
Opposition to Class Certification/
Plaintiffs' Memorandum in
Opposition to Summary Judgment
shall be filed by:
-- The Plaintiffs' Reply Memorandum Jan. 6, 2022
in support of class certification/
Defendants' Reply to Motion for
Summary Judgment shall be filed by:
-- Non-dispositive motions, excluding Feb. 27, 2023
trial and trial related motions shall
be filed by:
-- Dispositive Motions are due by: April 14, 2023
The nature of suit Civil Rights – American with Disabilities
Act.[CC]
BRIGHTHOUSE LIFE: Faces Martin Class Suit in Georgia
----------------------------------------------------
Brighthouse Life Insurance Company disclosed in its Form 10-Q
Report for the quarterly period ended March 31, 2022, filed with
the Securities and Exchange Commission on May 11, 2022, that it is
facing a case captioned "Lawrence Martin v. Brighthouse Life
Insurance Company" (April 6, 2021, S.D. N.Y.)
Plaintiff has filed a purported class action lawsuit against
Brighthouse Life Insurance Company as an owner of a universal life
insurance policy issued by Travelers Insurance Company, a
predecessor to Brighthouse Life Insurance Company. Plaintiff seeks
to certify a class of similarly situated owners of universal life
insurance policies issued or administered by defendants and alleges
that cost of insurance charges should have decreased over time due
to improving mortality but did not. Plaintiff alleges, among other
things, causes of action for breach of contract, breach of the
covenant of good faith and fair dealing, and unjust enrichment.
Martin seeks to recover compensatory damages, attorney's fees,
interest, and equitable relief including a constructive trust.
Brighthouse Life Insurance Company filed a motion to dismiss in
June 2021, which was denied in February 2022. Brighthouse Life
Insurance Company of NY was initially named as a defendant when the
lawsuit was filed, but was dismissed as a defendant, without
prejudice, in April 2022.
Brighthouse Life Insurance Company is a wholly-owned subsidiary of
Brighthouse Holdings, LLC and an indirect wholly-owned subsidiary
of Brighthouse Financial, Inc. It offers a range of annuity and
life insurance products to individuals.
BRIGHTHOUSE LIFE: Faces Newton Class Suit in Georgia
----------------------------------------------------
Brighthouse Life Insurance Company disclosed in its Form 10-Q
Report for the quarterly period ended March 31, 2022, filed with
the Securities and Exchange Commission on May 11, 2022, that it is
facing case captioned "Richard A. Newton v. Brighthouse Life
Insurance Company" (May 8, 2020, N.D. Ga.).
Plaintiff in said action filed purported class action lawsuit
against Brighthouse Life Insurance Company as an owner of a
universal life insurance policy issued by Travelers Insurance
Company, a predecessor to Brighthouse Life Insurance Company.
Plaintiff seeks to certify a class of all persons who own or owned
life insurance policies issued where the terms of the life
insurance policy provide or provided, among other things, a
guarantee that the cost of insurance rates would not be increased
by more than a specified percentage in any contract year. Plaintiff
alleges, among other things, causes of action for breach of
contract, fraud, suppression and concealment, and violation of the
Georgia Racketeer Influenced and Corrupt Organizations Act.
Plaintiff seeks to recover damages, including punitive damages,
interest and treble damages, attorneys' fees, and injunctive and
declaratory relief.
Brighthouse Life Insurance Company filed a motion to dismiss in
June 2020, which was granted in part and denied in part in March
2021. Plaintiff was granted leave to amend the complaint.
Brighthouse Life Insurance Company is a wholly-owned subsidiary of
Brighthouse Holdings, LLC and an indirect wholly-owned subsidiary
of Brighthouse Financial, Inc. It offers a range of annuity and
life insurance products to individuals.
BUFFALO WILD: Seeks to Stay Response Deadline for Class Cert Bid
----------------------------------------------------------------
In the class action lawsuit captioned as Kayla Pender, individually
and on behalf of all others similarly situated, v. Flying S. Wings,
Inc. d/b/a Buffalo Wild Wings, Case No. 2:21-cv-04292-ALM-KAJ (S.D.
Ohio), the Defendant asks the Court to enter an order staying the
response deadline for the Motion to Certify and resetting pending
conclusion of the briefing on the issues surrounding the amended
complaint.
The Plaintiff filed her motion for conditional certification on
April 19, 2022. On the same day, the Plaintiff moved to amend her
complaint to, among other things, add additional parties.
The Court ordered accelerated briefing on that issue. However, the
Court has now tolled that briefing. Under the Rule, the Defendant's
response would be due on May 10, 2022. This Motion is not made to
cause undue delay, but rather, to allow all parties adequate time
to brief the relevant issues.
Specifically, the Plaintiff's Motion to Certify seeks to certify
the allegations contained in the proposed amended complaint. The
decision on whether the proposed amended complaint is accepted has
not yet been issued by the Court.
A copy of the Defendant's motion dated May 10, 2022 is available
from PacerMonitor.com at https://bit.ly/3z152o3 at no extra
charge.[CC]
The Plaintiff is represented by:
Robert E. DeRose, Esq.
BARKAN MEIZLISH DEROSE COX, LLP
4200 Regent Street, Suite 210
Columbus, OH 43219
E-mail: bderose@barkanmeizlish.com
- and -
Drew N. Herrman, Esq.
Pamela G. Herrman, Esq.
HERRMANN LAW, PLLC
801 Cherry Street, Suite 2365
Fort Worth, TX 76102
E-mail: drew@herrmannlaw.com
pamela@herrmannlaw.com
The Defendant is represented by:
Melvin Davis, Esq.
Thomas N. Spyker, Esq.
Melvin J. Davis, Esq.
REMINGER CO., L.P.A.
200 Civic Center Dr., Suite 800
Columbus, OH 43215
Telephone No.: (614) 232-2420
Facsimile No.: (614) 232-2410
E-mail: tspyker@reminger.com
CALIFORNIA STATE: Striking of Class Claims in Doe Suit Affirmed
---------------------------------------------------------------
In the case, JOHN DOE, Plaintiff and Appellant v. TIMOTHY P. WHITE,
as Chancellor and Trustee, etc., Defendant and Respondent, Case No.
B307444 (Cal. App.), the Court of Appeals of California for the
Second District, Division Five, affirms the order granting a motion
to strike class certification allegations that was entered in favor
of Respondents Timothy P. White, in his capacity as Chancellor of
the University, and the Board of Trustees of the University.
I. Introduction
Petitioner and Appellant John Doe appeals from an order granting a
motion to strike class certification allegations that was entered
in favor of Respondents White, in his capacity as Chancellor of
University, and the Board of Trustees of the California State
University (collectively "the University") in the action concerning
student discipline procedures in sexual misconduct complaints. On
appeal, Doe contends common issues of law and fact predominate, his
claims and defenses are typical of the class, and a class action is
a superior method to individual litigation.
II. Background
Between July 2015 and July 2019, the University's policies
governing student complaints about sexual misconduct were contained
in Executive Order 1097, as revised in June 2015 (2015 EO 1097) and
in October 2016 (2016 EO 1097). Under both versions of the policy,
after a complaint of sexual misconduct was filed, a Title IX
coordinator conducted an initial intake interview with the
complainant. The coordinator was required to explain the
investigation procedure and inform the complainant of applicable
rights, including the right to have an advisor present, and discuss
interim remedies. The coordinator would inform the complainant of
the right to file a criminal complaint and offer to assist with
filing a criminal complaint.
On Nov. 15, 2016, University student Jane Roe filed a sexual
misconduct complaint against fellow student Doe. Coordinator Mary
Bacerra informed Doe that allegations of sexual misconduct had been
made against him by Roe about an alleged incident that took place
off campus on Oct. 18, 2016. The charges were governed by 2016 EO
1097 and EO 1098.
The coordinator designated investigator Andy Terhorst to
investigate the allegations and determine whether Doe violated
University policy. Doe denied the allegations. There was no hearing
before an "impartial factfinder." Terhorst concluded Roe's
allegations were substantiated. Doe appealed the determination, but
the manager of investigations for the chancellor's office denied
the appeal, because he had not shown the determination was
unsupported by the evidence under the preponderance standard, that
procedural errors had an impact on the outcome, or any new evidence
unavailable at the time of the investigation.
A hearing officer recommended expulsion, which prevented admission
to any Cal State University and cancelled enrollment for upcoming
semesters. The University expelled Doe on June 8, 2017. Doe
appealed, but the University denied his appeal on June 30, 2017.
On July 16, 2019, Doe filed a petition for writ of administrative
mandate on behalf of himself and all persons similarly situated who
were disciplined under the policies at issue. The University filed
a motion to strike the class allegations, which the trial court
granted with leave to amend.
On Feb. 14, 2020, Doe filed an amended petition for writ of
administrative mandate. Doe sought a writ of mandate directing the
University to vacate the findings and sanctions against himself and
all members of the class of persons similarly situated to set aside
findings and sanctions imposed under policies that lacked fairness
and due process.
The class was all California State University students found
responsible for sexual misconduct under 2015 EO 1097, 2016 EO 1097,
and/or EO 1098, from July 16, 2015 through July 16, 2019. The
members of the class were ascertainable from the University's
internal records and required reports. The persons in the class are
so numerous that joinder is impracticable, and the disposition of
their claims in a class action rather than individual actions will
benefit the parties and the court.
On May 29, 2020, the University filed a motion to dismiss the
amended writ petition or strike the class allegations. The
University argued that Doe was an inadequate class representative,
because he failed to assert claims that absent class members would
reasonably expect to be preserved. Each administrative proceeding
was a highly individualized sexual assault proceeding. The class
proceeding would necessarily and impermissibly waive numerous
potentially superior grounds for recovery that could afford
putative class members relief if the grounds raised in the petition
fail, such as lack of jurisdiction or findings unsupported by
evidence. The University asked the court to dismiss the amended
writ petition entirely, or strike the class allegations.
In support of the motion to strike, the University filed a request
for judicial notice of several documents. The University argued the
writ petitions in other cases illustrated the myriad allegations of
error raised with respect to the unique circumstances of each
disciplinary action. In addition, the University provided pleadings
in a matter filed by Doe's attorney on behalf of a different
petitioner against the Regents of the University of California
seeking to bring a class action challenging sexual misconduct
policies. The trial court in that case had sustained a demurrer to
the class allegations, ultimately without leave to amend, on the
grounds that the issues were not subject to common proof and
individual questions would predominate.
In June 2020, Doe filed an opposition to the demurrer and motion to
strike. In support of the opposition, Doe requested the court takes
judicial notice of Executive Order 1097, as revised on March 29,
2019, which superseded the investigation and resolution provisions
of the prior policies as applied in sexual misconduct cases in
which a severe sanction of suspension or expulsion could be imposed
and the credibility of a party or witness was central to the
determination. Doe also filed an objection to the University's
request for judicial notice. The University filed a reply in
support of the demurrer and motion to strike.
After a hearing on July 28, 2020, the trial court issued an order
on Aug. 4, 2020, granting the motion to strike without leave to
amend. Among other things, the court found Doe was an inadequate
representative for the class, because he had not raised all of the
claims that class members would reasonably expect to be asserted,
such as the claim that the University lacked jurisdiction over
their conduct. It also found that there was no community of
interest, because whether witness credibility was a central issue
required an individual determination in every case.
The court overruled the University's demurrer to the petition. The
writ petition did not appear to be barred by any applicable statute
of limitations. Under the doctrine of laches, Doe's 25-month delay
in filing the writ petition was unreasonable, particularly because
his current counsel had represented him in the matter as early as
June 2017, and ample legal authority had been issued providing
timely guidance. No prejudice to the University appeared, however,
at this stage of the proceedings. The court granted the parties'
requests for judicial notice. Doe filed a timely notice of appeal
from the order.
III. Discussion
A. Effect of Education Code Section 66281.8
Doe alleged a class of California State University students that
were found responsible for sexual misconduct under the policies at
issue from July 16, 2015 through July 16, 2019.
The Court of Appeals' resolution of the instant appeal does not
require it to determine any question concerning Education Code
section 66281.8. It opines that it need not determine any question
related to application of section 66281.8, subdivision (g), to
resolve the appeal, because Doe failed to demonstrate that common
questions predominate over individual issues.
B. Individual Issues Predominate
Doe contends the motion to strike should have been denied because
common issues of fact and law predominate over individual issues.
Doe contends the common questions of law and fact to be litigated
include: (1) whether the policies at issue complied with the law;
(2) whether the University failed to implement procedures that
provide adequate due process to students accused of sexual
misconduct at California State Universities; and (3) whether
findings and discipline imposed under the policies must be set
aside and vacated. The common law right to fair procedure
applicable to the claims at issue provided students accused of
sexual misconduct with a right to cross-examine the complainant and
witnesses, directly or indirectly, if the accused faced severe
disciplinary sanctions and the credibility of witnesses was central
to the adjudication of the allegation.
The Court of Appeals disagrees. It opines that Doe does not make
any persuasive argument that these issues are not implicated or
significant in determining whether due process was provided to any
given member of the proposed class. Doe instead suggests that the
litigation could be managed through the creation of subclasses. It
disagrees, saying an examination of the unique facts of each
proceeding, such as the import of credibility, would nevertheless
be required on an individualized basis to create the subclasses.
The class action mechanism is not a suitable vehicle to resolve the
claims in the case, because while common questions concerning the
adequacy of the University's policies are relatively easily
resolved at an abstract level, establishing the University's
liability would further require a mini-trial as to each class
member to resolve myriad individual questions. The trial court
properly struck the class allegations from the writ petition in the
case.
IV. Disposition
The Court of Appeals concludes the trial court properly struck the
class action allegations in the case because individual issues
predominate over common questions. Therefore, it affirms.
A full-text copy of the Court's May 17, 2022 Opinion is available
at https://tinyurl.com/jd367ndm from Leagle.com.
Hathaway Parker, Mark M. Hathaway -- mark@hathawayparker.com -- and
Jenna E. Parker -- jenna@hathawayparker.com -- for the Plaintiff
and Appellant.
California State University Office of General Counsel, Susan
Westover -- swestover@calstate.edu -- and William C. Hsu --
whsu@calstate.edu; O'Melveny & Myers, Apalla U. Chopra, Adam J.
Karr -- akarr@omm.com -- and Anton Metlitsky -- ametlitsky@omm.com
-- for the Defendant and Respondent.
CALIFORNIA: Dismissal of 640 Tenth's Complaint v. Newsom Affirmed
-----------------------------------------------------------------
In the case, 640 TENTH, LP, et al., Plaintiffs and Appellants, v.
GAVIN NEWSOM, as Governor, etc., et al., Defendants and
Respondents, Case No. D079339 (Cal. App.), the Court of Appeals of
California for the Fourth District, Division One, affirms the
superior court's order sustaining demurrers to the third amended
complaint without leave to amend and dismissing the action.
I. Background
The putative class action against California (state) and San Diego
County officials challenges Governor Gavin Newsom's emergency
orders and related public health directives restricting business
operations during the COVID-19 pandemic. The Plaintiffs, owners of
affected restaurants and gyms, primarily contend the orders are
procedurally invalid because they were adopted without complying
with the Administrative Procedure Act (APA) (Gov. Code, Section
11340 et seq.). The Owners further maintain that the business
restrictions are substantively invalid because they effected a
taking without compensation, violating the Fifth Amendment to the
United States Constitution.
In response to the COVID-19 pandemic, Governor Newsom declared a
state of emergency in California on March 4, 2020.3 About two weeks
later he issued Executive Order N-33-20, colloquially referred to
as the "stay-at-home order." Among other restrictions, it
prohibited restaurants from providing both indoor and outdoor
dining.
After a July surge of infections, the Health Department issued the
"Guidance on Closure of Sectors in Response to COVID-19"
(Guidance). It prohibited indoor dining in 29 counties, including
San Diego.
The Blueprint for a Safer Economy followed in late August.
Replacing the previous staged reopening plan, it created a
color-coded tiered system, updated weekly, that assigned each
county a color (purple, red, orange, or yellow) based on its
assessed risk level for COVID-19 transmission and imposed
corresponding restrictions for different business sectors. For
restaurants, indoor dining in "purple" counties was prohibited.
Those in "red" counties were limited to operating at 25% capacity
and prohibited from seating more than 100 people. Restaurants in
"orange" counties were prohibited from operating at more than 50%
capacity and could not seat more than 200 people. Those in "yellow"
counties were limited to 50% capacity. The Blueprint was rescinded
by Executive Order N-07-21 in June 2021.
In April 2021, 640 Tenth, LP, O'Frank, LLC, Fit Athletic Club-San
Diego, LLC, and Crossfit East Village Corporation filed a third
amended complaint against Newsom in his capacity as Governor of
California and other state officials (collectively, State
Defendants), as well as the county and Wilma J. Wooten, in her
official capacity as Public Health Officer.
The Owners sued on behalf of themselves and three classes
consisting of: all (1) restaurants and (2) gyms in the County; and
(3) California businesses "whose operations or activities are
misclassified or other improperly [sic] subject to a complete or
total shutdown order(s), under the authority of the Blueprint."
The Complaint alleges six causes of action: (i) Declaratory
Judgment -- alleging that the state defendants exceeded statutory
authority in implementing the Blueprint and associated orders and
directives; or alternatively, caused a regulatory taking; (ii)
Injunctive Relief -- seeking to restrain the Defendants from
enforcing the Blueprint, Guidance and associated orders; (iii)
Orders Exceed Statutory Authority -- alleging the business
shut-down orders are ultra vires and exceed the Governor's
statutory authority; (iv) Equal Protection -- claiming the
Blueprint, orders, and restrictions are based on arbitrary
classifications that are not rationally related to promoting public
health; (v) Inverse Condemnation -- alleging the Blueprint and
related orders effected a taking of property without compensation;
and (vi) Writ of Mandate -- claiming the Defendants failed to
comply with a ministerial duty to comply with the APA.
Rejecting these claims, the superior court sustained demurrers to
the third amended complaint without leave to amend and dismissed
the action.
The Court of Appeals independently reviewed the resulting
judgment.
II. Discussion
A. The Governor's Orders and Public Health Directives Issued Under
the Emergency Act Are Not Subject to the APA
The Emergency Act empowers the Governor to proclaim a state of
emergency when conditions of "extreme peril" caused by, among other
things, an "epidemic" are "likely to be beyond the control of the
services, personnel, equipment, and facilities of any single
county, city and county, or city." In those circumstances, the
Governor has "complete authority over all agencies of the state
government and the right to exercise within the area designated all
police power vested in the state to effectuate the purposes of the
Emergency Act." Police power includes "the power to legislate."
Thus, under the Emergency Act the Governor may "make, amend and
rescind orders and regulations" which "shall have the force and
effect of law" and take effect immediately.
The Court of Appeals holds that to accept the Owners' argument
would mean that orders issued during a state of emergency -- when
time is of the essence -- are subject to the APA, but any issued
before, in contemplation of some possible future state of
emergency, are not. It cannot conceive of any plausible reason for
such a construction, and Owners offer none. Rather, the only
reasonable conclusion is that in enacting section 8567 subdivision
(d), it went without saying that the Governor's orders issued
during a state of emergency would not be subject to the APA.
Accordingly, the superior court correctly sustained the demurrers
to the first (declaratory judgment), third (acts in excess of
Governor's authority), and sixth (writ of mandate) causes of action
because an essential element of each is that the Defendants failed
to comply with the APA.
B. The Complaint Fails To Allege Facts Constituting a Taking
The takings clause of the Fifth Amendment, applicable to the states
through the Fourteenth Amendment, provides: "Nor will private
property be taken for public use, without just compensation." A
physical taking occurs where the government physically intrudes
upon a plaintiff's property or allows others to do so.
Determining whether a partial regulatory taking has occurred
"requires an 'ad hoc' factual inquiry" considering what have become
known as Penn Central factors, citing Pennsylvania Coal Co. v.
Mahon (1922) 260 U.S. 393, 415: (1) the economic impact of the
regulation; (2) its interference with reasonable investment-backed
expectations; and (3) the character of the government action. These
are the principal guidelines for resolving regulatory takings
claims.
The Court of Appeals opines that the Owners have not alleged a
physical taking. They have not alleged a legally sufficient
regulatory taking claim. Their attempt to do so is met first with a
virtual torrent of California federal district court decisions
rejecting similar challenges to Governor Newsom's emergency
COVID-19 orders.
The Court of Appeals independently reached the same conclusion
applying the Penn Central factors. It concludes that the Complaint
fails to allege an actionable regulatory taking. It does not allege
the requisite high degree of economic harm. And although the
business restrictions adversely affected Owners' reasonable
investment-backed expectations, the Governor's emergency orders
"are quintessential examples of regulations that 'adjust the
benefits and burdens of economic life to promote the common good.'"
The character of these actions is akin to that of other historical
examples of governmental actions undertaken to counter serious
threats to the public that were subsequently found not to be
takings.
The Court of Appeals thus joins a large number of other courts that
have reached similar conclusions applying the Penn Central factors
to COVID-19 business restrictions. The superior court correctly
sustained the demurrers to the fifth cause of action.
C. Owners Have Forfeited Their Equal Protection Claim By Not
Raising It in the Opening Brief
The Owners' fourth cause of action alleges that the Blueprint,
orders, and restrictions "are based on arbitrary classifications
and criteria that are not rationally related to promoting public
health" and, therefore, violate their right to equal protection
under the Fourteenth Amendment. Applying rational-basis review, the
superior court sustained demurrers to this cause of action without
leave to amend, noting that "'every court considering equal
protection challenges brought by business owners to COVID-related
restrictions has upheld them.'"
The Owners' 76-page opening brief does not challenge this ruling.
The term "equal protection" does not appear a single time in the
brief. Even after the state and county defendants called this
omission to the ourt of Appeals' attention in the Respondents'
brief, the Owners also failed to even belatedly mention equal
protection in their reply. Accordingly, the issue is forfeited.
D. Owners Did Not Plead Any Due Process Claim
In various places, the Owners' opening brief asserts the Governor's
emergency orders and related Health Department directives denied
them due process. Perhaps its clearest expression is near the end,
where Owners assert that "fundamental principles of due process
come into play" where the challenged orders are made "without
notice or hearing." They further claim the "urgent risk to their
businesses" presents "serious due process violations."
However, as the State Defendants point out, the Complaint does not
contain any cause of action alleging due process violation(s). And
although the three-page "Introduction" to the Complaint asserts the
State Defendants committed "due process violations," that is a
legal conclusion and not contained in the actual charging
allegations. On its own, the Court of Appeals has scoured the
Complaint to see if it alleges a cognizable due process claim. The
first cause of action for "Declaratory Judgment" includes in
various places allegations of due process violations. But
declaratory relief is an equitable remedy, not a cause of action,
and in any event Owners do not seek a declaration that the
Defendants violated their due process rights.
In sum, the Court of Appeals agrees with the State Defendants; the
Complaint does not contain a cause of action for alleged due
process violations.
E. Owners "'Commandeering'" Claim Fails
The Emergency Act empowers the Governor to "commandeer or utilize"
private property "deemed by him necessary and the state will pay
the reasonable value thereof." In a one-sentence argument embedded
in a paragraph discussing the Fifth Amendment claim, the Owners'
opening brief cited section 8572. The issue comes up again in a
very cursory manner in the reply brief, where they claim, "What
constitutes 'commandeering' is a factual question for the trial
court."
Setting aside that this argument is forfeited because it is not
presented in a separate heading, nor developed with reasoned
argument and citation to authority -- the Court of Appeals finds
that it also fails on the merits. Like California, Minnesota law
empowers the governor of that state to declare an emergency and
make "orders" to carry out the provisions of the statute. To the
extent the Complaint purports to allege a compensable
"`commandeering'" under the Emergency Services Act, it fails to
state facts constituting a cause of action.
F. No Leave to Amend
Finally, the Owners ask for leave to amend the Complaint. However,
although they may seek leave to amend even for the first time on
appeal, it is their burden to "show in what manner they can amend
their complaint and how that amendment will change the legal effect
of their pleading." In asking that the Court of Appeals grants
leave to amend, the Owners simply state that "common sense, due
process and fair play unanimously require an opportunity for
amendment on remand." This is insufficient.
III. Disposition
The judgment is affirmed. The Respondents are entitled to costs on
appeal.
A full-text copy of the Court's May 13, 2022 Opinion is available
at https://tinyurl.com/5bm2692c from Leagle.com.
Prometheus Civic Law, Matthew Sean Harrison; Wilson Elser Moskowitz
Edelman & Dicker and Bruno Katz -- bruno.katz@wilsonelser.com --
for the Plaintiffs and Appellants.
Rob Bonta, Attorney General, Mark R. Beckington, Jeffrey T. Fisher
and Alan D. Romero, Deputy Attorneys General, for Defendants and
Respondents Gavin Newsom, Rob Bonta and Tomas J. Aragon.
Lonnie J. Eldridge, County Counsel, Joshua M. Heinlein, Deputy
County Counsel; Paul, Plevin, Sullivan & Connaughton and Jeffrey P.
Michalowski -- jmichalowski@paulplevin.com -- for Defendants and
Respondents County of San Diego and Wilma J. Wooten.
CALIFORNIA: Must File Oppositions in Dunsmore Suit Until May 31
---------------------------------------------------------------
In the class action lawsuit captioned as Dunsmore v. State of
California, et al., Case No. 3:20-cv-00406 (S.D. Cal.), the Hon.
Judge Anthony J. Battaglia entered an order granting in part the
County's ex parte application:
-- The Defendants will have until May 31, 2022 to file their
oppositions, and Plaintiffs reply is due by June 6, 2022.
-- The hearing for Plaintiffs Motions for Preliminary
Injunction and Provisional Class Certification is
continued to June 30, 2022 at 2:00 p.m.
The Plaintiffs oppose the Countys ex parte application, arguing the
County Defendants counsel was put on notice that Plaintiffs would
be moving for a preliminary injunction and provisional class
certification, and that counsel did not raise any scheduling
concerns.Moreover, Plaintiffs assert the parties filed a joint
motion for an extension of pages on these same motions but did not
request additional time for briefing.
The nature of suit states Prisoner Petitions -- Habeas Corpus --
Civil Rights.[CC]
CEDAR REALTY: Faces Kim Securities Suit in Maryland Court
---------------------------------------------------------
Cedar Realty Trust, Inc. disclosed in its Form 10-Q Report for the
quarterly period ended March 31, 2022, filed with the Securities
and Exchange Commission on May 12, 2022, that on May 6, 2022, a
purported holder of the company's outstanding preferred stock filed
a putative class action complaint against the Company and the Board
in the United States District Court for the District of Maryland,
entitled "Kim v. Cedar Realty Trust, Inc., et al.," Civil Action
No. 22-cv-01103.
The complaint alleges on behalf of a putative class of holders of
the company's preferred stock, among other things, claims for
declaratory and injunctive relief with respect to the articles
supplementary governing the terms of the company's preferred stock
and breach of fiduciary duty. Kim complaint seeks, among other
things, a declaration that holders of the company's preferred stock
are entitled to exercise either their conversion rights or
liquidation rights as set forth in the article supplementary,
compensatory damages and an injunction enjoining the distribution
to the company's common shareholders of the proceeds of any of the
transactions pending a determination of the merits of plaintiff's
claims.
Cedar Realty Trust, Inc. is a real estate investment trust based in
Massapequa NY.
CEDAR REALTY: Faces Sydney Securities Suit in MD Court
------------------------------------------------------
Cedar Realty Trust, Inc. disclosed in its Form 10-Q Report for the
quarterly period ended March 31, 2022, filed with the Securities
and Exchange Commission on May 12, 2022, that on April 8, 2022,
several purported holders of the company's outstanding preferred
stock filed a putative class action complaint against the company,
the Board and Wheeler Real Estate Investment Trust, Inc. in
Montgomery County Circuit Court, Maryland, entitled "Sydney, et al.
v. Cedar Realty Trust, Inc., et al.," Case No. C-15-CV-22-00152.
In May 6, 2022, plaintiffs in the Sydney action filed an amended
complaint. The amended complaint alleges on behalf of a putative
class of holders of the company's preferred stock, among other
things, against the company and the board, claims for breach of
contract with respect to the articles supplementary governing the
terms of the company's preferred stock and breach of fiduciary
duty, and, against Wheeler, tortious interference and aiding and
abetting breach of fiduciary duty.
Cedar Realty Trust, Inc. is a real estate investment trust based in
Massapequa NY.
CENTURY INT'L: CMP & Scheduling Order Entered in Abreu Class Suit
-----------------------------------------------------------------
In the class action lawsuit captioned as LUIGI ABREU, on behalf of
himself and all others similarly situated, v. CENTURY INTERNATIONAL
ARMS INC., Case No. 1:22-cv-02103-LGS (S.D.N.Y.), the Hon. Judge
Lorna G. Schofiel entered a civil case management plan and
scheduling order as follows:
-- Amended pleadings may be filed June 17, 2022
without leave of Court until:
-- All fact discovery shall be June 17, 2022
completed no later than:
-- All fact discovery shall be Sept. 15, 2022
completed no later than:
-- Responsive documents shall be July 18, 2022
produced by:
Century International Arms is an importer and manufacturer of
firearms that is based in the United States.
A copy of the Court's order dated May 11, 2022 is available from
PacerMonitor.com at https://bit.ly/3wK5O7f at no extra charge.[CC]
The Plaintiff is represented by:
Edward Y. Kroub, Esq.
MIZRAHI KROUB LLP
200 Vesey Street, 24th Fl
New York, NY 10281
Telephone: 347-284-0146
E-mail: mizrahikroub.com
The Defendant is represented by:
Ryan Erdreich, Esq.
PISCIOTTI LALLIS ERDREICH, PC
Telephone: (973) 245-8100
445 Hamilton Ave, Suite 1102
White Plains, NY 10601
Telephone: (914) 287-7711
Facsimile: (914) 287-7715
E-mail: rerdreich@pisciotti.com
CINEMARK USA: Faces Neal FACTA Suit in California Court
-------------------------------------------------------
Cinemark USA, Inc. disclosed in its Form 10-Q Report for the
quarterly period ended March 31, 2022, filed with the Securities
and Exchange Commission on May 11, 2022, that it is facing a class
action captioned "Lakeenya Neal, et al. v. Cinemark Holdings, Inc.,
et al."
This class action lawsuit was filed against the Company on December
10, 2021, in the Central District of Los Angeles County Superior
Court of the State of California alleging certain violations of the
Fair and Accurate Credit Transactions Act (FACTA).
Cinemark USA, Inc., a wholly-owned subsidiary of Cinemark Holdings,
Inc., and its subsidiaries operate in the motion picture exhibition
industry, with theatres in the United States, Brazil, Argentina,
Chile, Colombia, Peru, Ecuador, Honduras, El Salvador, Nicaragua,
Costa Rica, Panama, Guatemala, Bolivia, Curacao and Paraguay.
COMPUTER HAUS: Loses Summary Judgment v. Jahagirdar
----------------------------------------------------
In the class action lawsuit captioned as SHAILESH JAHAGIRDAR, et
al., v. THE COMPUTER HAUS NC, INC., d/b/a/ CITYMAC, et al., Case
No. 1:20-cv-33-MOC-WCM (W.D.N.C.), the Hon. Judge Max O. Cogburn
entered an order denying the Defendants Troy Curran and The
Computer Haus NC, Inc.'s motion for summary judgment.
However, the Court will allow the parties to be heard on the
Plaintiffs' state law claims at trial, and will permit the parties
to submit supplement briefing addressing which state law claims are
preempted and/or legally insufficient and why or why not. The
parties shall each have 30 days to file supplemental briefing
addressing this issue, and 20 days thereafter to file responses the
Judge says.
The case is a class action concerning wage and hour claims raised
by employees of CityMac alleging violations of the Fair Labor
Standards Act (FLSA) and related state laws.
The Plaintiffs assert numerous violations, including failure to pay
overtime and earned commissions, off-the-clock work, pay deductions
for meal breaks not actually taken, and failure to timely pay final
paychecks.
The Defendants broadly deny Plaintiffs’ allegations. The
Plaintiff Shailesh Jahagirdar began this action by filing a
Complaint on February 5, 2020, seeking unpaid wages and statutory
penalties under the FLSA.
The Defendants broadly denied Mr. Jahagirdar’s allegations, with
the exception of a small amount of unpaid wages for 5.5 hours of
work, in their Answer filed on March 6, 2020. The Plaintiff
Jahagirdar later filed an amended complaint to initiate a putative
class action, alleging FLSA violations on behalf of himself and
other similarly situated employees across five states, and moved to
conditionally certify a collective action, both filed on March 14,
2020.
A copy of the Court's order dated May 11, 2022 is available from
PacerMonitor.com at https://bit.ly/3NvecNA at no extra charge.[CC]
CVS PHARMACY: Court Tosses Mier's Bid to Certify Class
------------------------------------------------------
In the class action lawsuit captioned as JOESPH MIER v. CVS
PHARMACY, INC., ET AL., Case No. (), the Court entered an order
granting in part and denying in part the defendants' motions in
limine; and denying plaintiff's motion to certify class.
The case arises out of the Plaintiff's allegations that CVS's
Advanced Formula Hand Sanitizer misleads consumers by representing
that it kills 99.99% of all germs.
The Plaintiff brought a consumer class action suit against
Defendants for Intentional Misrepresentation; Negligent
Misrepresentation; Violation of the False Advertising Law (FAL);
and Violation of the Unfair Competition Law (UCL).
On March 15, 2021, the Plaintiff filed his Motion to Certify Class.
The Court certified this class under Rule 23(b)(3) on April 29,
2021. Order Granting Plaintiff's Motion for Class Certification.
The Plaintiff brought the instant Renewed Class Cert. Mot. on
February 2, 2022. The Plaintiff seeks certification of a class
consisting of:
"All persons residing in the State of California who
purchased CVS brand hand sanitizer during the period
beginning four years from the date of the filing of the
original Complaint, filed May 26, 2020, to the date of class
certification."
CVS Pharmacy is an American retail corporation. A subsidiary of CVS
Health, it is headquartered in Woonsocket, Rhode Island. It was
also known as, and originally named, the Consumer Value Store and
was founded in Lowell, Massachusetts, in 1963.
A copy of the Court's order dated May 9, 2022 is available from
PacerMonitor.com at https://bit.ly/38cNoTj at no extra charge.[CC]
DARLING INGREDIENTS: Loses Bid to Enforce Subpoena in Sines Suit
----------------------------------------------------------------
In the case, JAMES SINES; MANUELA SINES and JENNELL JONES, on
behalf of themselves and all others similarly situated, Plaintiffs
v. DARLING INGREDIENTS, INC., Defendant, Case No. MC 21-0026 JB
(D.N.M.), Judge James O Browning of the U.S. District Court for the
District of New Mexico:
-- denies Defendant Darling Industries' Motion to Enforce
Subpoena Served on Non-Party Dr. Mark P. Cal, filed
July 27, 2021; and
-- grants the Plaintiffs' request to quash the Subpoena in
their Response to Opposition to Defendant's Motion to
Enforce Subpoena Served on Non-Party Dr. Mark P. Cal and
Request to Quash or Transfer Defendant's Motion to Trial
Court, filed Aug. 17, 2021
I. Introduction
The matter comes before the Court on Defendant Darling Industries'
Motion. The Court held a hearing on Feb. 23, 2022. The primary
issues are: (i) whether Dr. Mark P. Cal is the Plaintiffs James
Sines, Manuela Sines, and Jennell Jones' expert; (ii) whether Dr.
Cal must comply with Defendant Darling Ingredients' subpoena,
because discovery against a party's expert must proceed under rule
26 of the Federal Rules of Civil Procedure rather than under rule
45; and (iii) whether the Court should transfer the Motion to the
United States District Court for the District of New Jersey.
II. Background
Darling Ingredients is a leading producer and developer of
sustainable organic ingredients. One of Darling Ingredients'
practices is to take materials that are headed for the landfill and
recycle them into sustainable ingredients. Darling Ingredients'
facility in Newark, New Jersey, recycles more than 100,000 metric
tons of raw material each year. It owns and operates a facility in
Newark's "heavily industrialized waterfront and is surrounded by
numerous industrial factories and other facilities that create and
emit odors."
In October 2019, the Plaintiffs sued Darling Ingredients in the
U.S. District Court for the District of New Jersey. The Plaintiffs
allege that Darling Ingredients' Newark facility emits "unbearable
noxious odors into the ambient air" that "invade the properties of
the Plaintiffs and putative class." They make claims for nuisance,
negligence, gross negligence, and trespass. The Plaintiffs seek
both damages and injunctive relief.
On April 16, 2021, the Honorable Claire C. Cecchi, United States
District Judge for the United States District Court for the
District of New Jersey, ordered the Plaintiffs and Darling
Ingredients to submit a discovery plan, in accordance with rule
26(f) of the Federal Rules of Civil Procedure. See Response at 3.
The parties submitted jointly their discovery plan on April 22,
2021. See Discovery Plan, filed August 17, 2021 (Doc. 5-2)
("Discovery Plan"). In their Discovery Plan, the parties agree
that: (i) April 15, 2022, is the Plaintiffs' deadline for
disclosing experts and producing expert reports; (ii) May 6, 2022,
is Darling Ingredients' deadline to depose the Plaintiffs' experts;
(iii) May 27, 2022, is Darling Ingredients' deadline for disclosing
expert and producing expert reports; and (iv) June 17, 2022, is the
Plaintiffs' deadline to depose Darling Ingredients' experts.
On April 30, 2021, the Plaintiffs made their introductory
disclosures to Darling Ingredients in accordance with rule 26(a)(1)
of the Federal Rules of Civil Procedure. In their Initial
Disclosures, the Plaintiffs list Dr. Cal as an "Air Modeling/Air
and Odor Dispersion Expert" who is "likely to have discoverable
information that" the Plaintiffs may use "to support its claims or
defenses." Before the April 15, 2022, deadline to disclose the
Plaintiffs' experts and the May 5, 2022, deadline for Darling
Ingredients to depose those experts, Darling Ingredients served a
subpoena duces tecum on Dr. Cal, the Plaintiffs' anticipated -- but
not yet retained -- expert, on either July 2, 2021, or July 3,
2021.
With the subpoena, Darling Ingredients seeks three categories of
"non-privileged, factual" documents: (i) "motive, bias, and
credibility documents such as how much Plaintiffs' counsel has paid
Dr. Cal"; (iii) Dr. Cal's articles, publications, and reports that
relate to "odor and odor emissions"; and (iii) Dr. Cal's articles,
publications, and reports that relate to the AERMOD dispersion
model, which Dr. Cal "has used in other cases for the Plaintiffs'
counsel and will use in the case." Darling Ingredients does not use
the subpoena to seek Dr. Cal's expert opinions.
Dr. Cal did not file any objections to the Subpoena, despite the
July 14, 2021, deadline. On July 19, 2021, the Plaintiffs objected
to the Subpoena. They argue that Darling Ingredient's Subpoena
contains "overwhelmingly irrelevant, non-proportional, and
overbroad requests," and accuse Darling Ingredients of placing
additional burdens and expenses on "the victims of its conduct."
According to the Plaintiffs, the Subpoena is an attempt to
circumvent rule 26(b)(4) of the Federal Rules of Civil Procedure.
The Plaintiffs assert that Darling Ingredients is not entitled to
"irrelevant documents" from Dr. Cal, because "they are irrelevant
and not proportional" to the case's needs. In addition, they
contend that the Subpoena subverts the Discovery Plan, is
overbroad, and places an undue burden on Dr. Cal and on the
Plaintiffs. According to the them, many of the documents that
Darling Ingredients requests are trial preparation materials are
privileged, meaning that they are not su bject to disclosure.
III. Discussion
Darling Ingredients asks the Court to enforce the Subpoena. It
summarizes the documents that it seeks, then more fully explains
its five arguments. First, Darling Ingredients contends that Dr.
Cal waives his Objections by not responding to the Subpoena by July
14, 2021. Second, it asserts that the Plaintiffs' Objections fail,
because they, too, missed the July 14, 2021, deadline, and because
they lack standing to object to the Subpoena. Third, Darling
Ingredients asserts that the Plaintiffs' Objections lack merit,
because parties do not have standing to challenge subpoenas issued
to nonparties on relevance grounds or undue burden grounds. Fourth,
it maintains that rule 45 is the proper vehicle to obtain Dr. Cal's
documents. Fifth and finally, Darling Ingredients reasserts that
they do not seek privileged documents: Darling Ingredients
"expressly represents that it is not seeking privileged documents"
and acknowledges that "such documents can be withheld."
The Plaintiffs respond to Darling Ingredients' Motion, accusing
Darling Ingredients of abusing rule 45 and disregarding rule 26's
"well-established expert discovery limitations." In addition, they
contend that, by issuing a Subpoena to Dr. Cal, Darling Ingredients
is attempting to circumvent the Discovery Plan.
The Plaintiffs ask the Court to quash the Subpoena pursuant to rule
45(d)(3)(A)(iv), because: (i) the Subpoena "provided an
unreasonable time for response"; (ii) the Subpoena violates rule
45(d)(3)(B)(ii) by seeking information from an unretained expert;
and (iii) the Subpoena "seeks information that subjects Dr. Cal to
undue burden and expense," for which Darling Ingredients is
required to pay under rule 26(b)(4)(E)(i). They argue that, if the
Court grants Darling Ingredients' Motion, the Court must order
Darling Ingredients to pay Dr. Cal a "reasonable fee" for the time
it takes to respond to the Subpoena, in compliance with rule
26(b)(4)(E), because Dr. Cal is an expert. Finally, the Plaintiffs
request that, if the Court grants the Motion or declines to quash
the Subpoena, the Court transfers the Motion to the U.S. District
Court for the District of New Jersey, so that court can consider
the Motion instead.
In its Reply, Darling Ingredients makes two arguments. First,
Darling Ingredients contends that both Dr. Cal and the Plaintiffs
have waived their objections by not filing objections by the
Subpoena's July 14, 2021, deadline. Second, it maintains that the
Plaintiffs' Objections lack merit.
The Court held a hearing on Feb. 23, 2022.
Judge Browning opines that Darling Ingredients asks the Court to
enforce the Subpoena, but the Plaintiffs ask the Court to quash the
Subpoena, because it violates rule 45, subjects Dr. Cal to undue
burden and expense, and is an attempt to subvert rule 26 and the
Discovery Plan. First, Dr. Cal is the Plaintiffs' expert. Second,
the Court will quash the Subpoena, because discovery against a
party's expert must proceed under rule 26 and not under rule 45.
Third, transfer to the District of New Jersey is not warranted,
because the Plaintiffs do not show that there are exceptional
circumstances warranting transfer. Accordingly, Judge Browning will
deny the Motion.
IV. Conclusion
Judge Browning concludes: (i) that Dr. Cal is the Plaintiffs'
expert; (ii) that he will quash Darling Ingredients' subpoena,
because the Plaintiffs' have standing to contest the subpoena and
have a legitimate interest in ensuring that the parties follow the
agreed-upon discovery schedule; and (iii) that the transfer to the
District of New Jersey is not warranted. Accordingly, he denies the
Motion and grants the Plaintiffs' request to quash the subpoena.
A full-text copy of the Court's May 17, 2022 Memorandum Opinion &
Order is available at https://tinyurl.com/yxfv2y4e from
Leagle.com.
Matthew Z. Robb -- MRobb@LSCCounsel.com -- Liddle & Dubin, in
Detroit, Michigan, Attorneys for the Plaintiffs.
Steven Rossenwasser -- rosenwassers@gtlaw.com -- Green Traurig,
LLP, in Atlanta, Georgia, -and- Tomas J. Garcia --
tomas.garcia@modrall.com -- Modrall Sperling Roehl Harris & Sisk,
P.A., in Albuquerque, New Mexico, Attorneys for the Defendants.
DIAMOND TECHNICAL: Class Settlement in Gunter Suit Gets Final Nod
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In the class action lawsuit captioned as ANDREW GUNTER, On behalf
of himself and all others similarly situated, v. DIAMOND TECHNICAL
SERVICES, INC., Case No. 2:20-cv-01428-WSS (W.D. Pa.), the Hon.
Judge William S. Stickman IV entered an order granting joint motion
for certification of the settlement class, final approval of the
class action settlement, and other associated relief as follows:
1. The Court certifies a settlement class comprised of
the Plaintiff Andrew Gunter and 88 other (89 total)
individuals, defined as "Plaintiff [Andrew Gunter] and all
individuals who formerly or currently work for Diamond
Technical Services, Inc. under the job title technician,
or its equivalent, during any workweek from September 22,
2017 to September 22, 2020."
2. Under the settlement, Defendant will pay $280,000 plus
any payroll taxes (such as, for example, worker's
compensation insurance, unemployment insurance, the
employer's share of payroll taxes, or the employer's
social security contributions) ordinarily borne by
Defendant as an employer pursuant to normal payroll
practices, to be distributed as follows:
(i) $161,667.60 will be paid to the 89 class members;
(ii) a $5,000 service award will be paid to the
Representative Plaintiff Andrew Gunter;
(iii) a total of $93,332.40 (representing $90,502.40 in
attorneys' fees (32.32% of the total settlement
fund) and $2,830.00 in costs) will be paid to Class
Counsel; and
(iv) $20,000.00 will be paid to Settlement Class
Administrator Settlement Services, Inc. as
necessary costs of settlement administration.
3. The Court approves the $161,667.60 payment to the class
members as "fair, reasonable, and adequate," pursuant to
Fed. R. Civ. P. 23(e)(2), because, based on the evidence
and arguments presented in the Motion papers and during
the fairness hearing, all of the criteria described in
Fed. R. Civ. P. 23(e)(2)(A)-(D) favor approval.
4. The Court approves the Class/Collective Members' release
of the Released Claims as provided in the Settlement
Agreement, as well as the other terms of the Settlement
Agreement because, based on the evidence and arguments
presented in the Motion papers and during the fairness
hearing, the settlement was reached as a result of
contested litigation and it is a fair and reasonable
resolution of a bona fide dispute between the parties.
5. The Court approves the payment of a $5,000 service award
to be paid to Representative Plaintiff Andrew Gunter.
6. The Court appoints the law firm of Scott & Winters Law
Firm, LLC to serve as permanent class counsel because.
7. The Court approves the total payment to class counsel in
the amount of $93,332.40, representing $90,502.40 in
attorneys' fees and $2,830.00 in costs.
8. The Court approves the payment to Settlement Class
Administrator Settlement Services, Inc. in the amount of
$20,000.00 for settlement administration expenses because,
based on the evidence and arguments presented in the
Motion papers and during the fairness hearing, such
settlement administration expenses are necessary and
reasonable.
Diamond Technical provides engineering consulting and technical
services.
A copy of the Court's order dated May 6, 2022 is available from
PacerMonitor.com at https://bit.ly/3GdDeyj at no extra charge.[CC]
DISTRICT OF COLUMBIA: Wins Partial Dismissal of Amended Lewis Suit
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In the case, KAYLA DIONNE LEWIS, et al., Plaintiffs v. DISTRICT OF
COLUMBIA, Defendant, Civil Action No. 15-352 (RBW) (D.D.C.), Judge
Reggie B. Walton of the U.S. District Court for the District of
Columbia grants in part and denies in part the District's partial
motion to dismiss the Fourth Amended Complaint.
I. Introduction
The Plaintiffs, Kayla Dionne Lewis, Felton Hill, Mary Kenion,
Dwayne Howard, Rollie Montgomery, Rodney Hamilton, and Tyrell
Barkley, bring this putative class action against the Defendant,
the District of Columbia, pursuant to 42 U.S.C. Section 1983.
Currently pending before the Court is the District's partial motion
to dismiss the Fourth Amended Complaint.
II. Background
In support of their illegal hold claims, the Plaintiffs allege that
the District has a policy and practice of detaining arrestees for
longer than 48 hours, in violation of Gerstein v. Pugh, 420 U.S.
103 (1975), and County of Riverside v. McLaughlin, 500 U.S. 44, 56
(1991). According to the Plaintiffs, arrestees are "taken to the
District of Columbia Superior Court for an initial appearance after
'the administrative steps incident to arrest' have been completed
pursuant to Superior Court Rule of Criminal Procedure 5."
The Plaintiffs allege that, when "the government seeks to hold an
arrestee on a five-day hold pursuant to D.C. Code Section
23-1322(a), which, inter alia, authorizes the five-day detention of
individuals arrested while serving a term of supervised release,
the government must establish probable cause as a predicate to the
five-day hold." According to them, "in the Superior Court, the
practice is that prosecutors requesting detention present the
probable cause facts to the Magistrate Judge or Judge in a sworn
affidavit made by one of the arresting officers," which they refer
to as a "Gerstein" affidavit.
The Plaintiffs allege that, "sometimes for various reasons, the
Gerstein affidavit has a 'defect,' that is, the Gerstein affidavit
does not have enough information to establish probable cause to
believe that an offense has been committed or that a particular
arrestee is the one who committed the offense." They further allege
that the District, "through its Superior Court Judges or Magistrate
Judges and its prosecutors, and its Department of Corrections, has
developed a policy and practice," of "asking the Superior Court
Judge or Magistrate Judge to hold the arrestee until the next day
court is in session under a so-called Gerstein perfection hold."
Through the use of this practice, "the Magistrate Judge or Judge
orders the arrestee held until the next court date to allow the
government to 'perfect' the Gerstein affidavit, that is, obtain a
revised Gerstein affidavit that establishes probable cause." The
Plaintiffs contend that the "Superior Court Magistrate Judge and
Judges follow a statute and receive training that instructs them
that if the prosecutors ask for the 24 hours, they get it."
The Plaintiffs' illegal strip search claims allege that the
District violated their Fourth Amendment rights by
"strip-searching" them "pursuant to the Department of Corrections'
official indiscriminate blanket strip-search policy for intakes at
the District of Columbia Jail," "even though they were Gerstein
perfection hold arrestees who met the requirements of the
exception" to blanket strip-search policies under Florence v. Board
of Chosen Freeholders, 566 U.S. 318 (2012).
The Plaintiffs further allege that the District applied its custom
of holding them at the DC Jail or CTF despite that fact that the
Central Cell Block "has the capacity to house arrestees overnight,"
and the Department of Corrections "stated in a written submission
to the District of Columbia Council that, on average, the Central
Cell Block houses 75 arrestees during the weekdays and 90 arrestees
on weekends," despite being "capable of holding 114 arrestees at
any given time."
On March 5, 2021, the District filed its motion, moving to dismiss
in part the Fourth Amended Complaint. On April 5, 2021, the
Plaintiffs filed their opposition, and, on May 3, 2021, the
District filed its reply. On Jan. 10, 2022, the Court conducted a
hearing on the District's motion and took the motion under
advisement.
III. Analysis
The District moves to dismiss (1) the illegal hold claim asserted
by one of the new plaintiffs -- Montgomery; and (2) the illegal
strip search claims as to all the Plaintiffs.
A. Plaintiff Montgomery's Illegal Hold Claim
The District moves to dismiss Plaintiff Montgomery's illegal hold
claim, arguing that Montgomery was not held for longer than 48
hours on a Gerstein perfection hold and thus his "detention does
not run afoul of the Fourth Amendment." Specifically, the District
contests the Plaintiffs' allegation as to when Montgomery's
Gerstein perfection hold began, arguing that a docket sheet and
transcripts from three hearings from Montgomery's criminal case
(the "court records") reflect that the hold -- which ended on Dec.
18, 2012 -- did not begin until Dec. 17, 2012.
Judge Walton concludes that the court records demonstrate that
Montgomery's Gerstein perfection hold began on Dec. 17, 2012, and
that the Plaintiffs' arguments to the contrary are unavailing.
Judge Walton agrees with the District that Montgomery was not
detained pursuant to a Gerstein perfection hold for longer than 48
hours. Maintaining his conclusion that Montgomery's Gerstein
perfection hold began on Dec. 17, 2012, and ended on Dec. 18, 2012,
Judge Walton grants the District's motion as to Montgomery's
illegal hold claim and dismiss that claim.
B. The Plaintiffs' Illegal Strip Search Claims
Judge Walton now turns to the Plaintiffs' illegal strip search
claims. As to these claims, the Plaintiffs allege that the
"District strip-searched them pursuant to the Department of
Corrections' official indiscriminate blanket strip-search policy
for intakes at the DC Jail," "even though they were Gerstein
perfection hold arrestees who met the requirements of the Florence
exception."
The District seeks to dismiss these claims, raising two arguments.
First, the District argues that the exception only applies to
"arrestees whose detention has not been reviewed by a judicial
officer," whereas "in the case, all the Plaintiffs appeared before
a judge prior to being ordered held at the DC Jail" and therefore
"their detention was ordered by a judicial officer who determined
that a 24-hour Gerstein perfection hold was appropriate." Second,
the District argues that the Plaintiffs were not able to "be held
in available facilities apart from the general population" as the
Florence exception requires, because, for each Plaintiff, "a
Superior Court judge ordered that they be held at the DC Jail
following an initial appearance."
In response, the plaintiffs argue that (1) the District's arguments
either have been or should have been raised previously; and (2) the
Plaintiffs "plausibly alleged that they satisfy the three elements
of the Florence exception: ([a]) they were arrested on minor
charges; ([b]) they did not receive a probable cause determination
before being held for a Gerstein perfection hold; and ([c]) they
were placed in the DC Jail or CTF instead of elsewhere such as the
Central Cell Block where they could have been held outside of the
general population of the DC Jail."
Judge Walton concludes that this issue is controlled by a prior
legal conclusion reached in the case and, therefore, he must deny
the District's motion to dismiss the Plaintiffs' illegal strip
search claims. In their Fourth Amended Complaint, the Plaintiffs
make these exact allegations, asserting that "they did not receive
a probable cause determination before being held for a Gerstein
perfection hold" and "they were placed in the DC Jail or CTF
instead of elsewhere such as the Central Cell Block where they
could have been held outside of the general population of the DC
Jail or CTF."
Because "the same issue presented a second time in the same case in
the same court should lead to the same result," the Plaintiffs'
allegations suffice to plausibly allege that they fall under the
Florence exception. Moreover, although the "law-of-the-case may be
revisited if there is an intervening change in the law or if the
previous decision was clearly erroneous and would work a manifest
injustice," the District has made no such argument.
For these reasons, Judge Walton denies the District's motion to
dismiss the Plaintiffs' illegal strip search claims.
IV. Conclusion
For the foregoing reasons, Judge Walton concludes that he must (1)
grant the District's motion to dismiss Kenion's and Montgomery's
illegal hold claims, but (2) deny the District's motion to dismiss
the Plaintiffs' illegal strip search claims.
A full-text copy of the Court's May 17, 2022 Memorandum Opinion is
available at https://tinyurl.com/yar8rba8 from Leagle.com.
DOLGEN CALIFORNIA: Gallegos Seeks to Certify 7 Subclasses
---------------------------------------------------------
In the class action lawsuit captioned as BRIAN GILE, an individual,
on behalf of himself and all others similarly situated; RANDOLPH
GALLEGOS, an individual, on behalf of himself and all others
similarly situated, v. DOLGEN CALIFORNIA, LLC, a Tennessee limited
liability company; and DOES 1 through 100, inclusive, Case No.
5:20-cv-01863-MCS-SP (C.D. Cal.), Plaintiff Randolph Gallegos ask
the Court to enter an order certifying case as a class action and
that he be determined to be a suitable class representative.
The Plaintiff seeks certification of the following proposed
subclasses:
-- On-Duty Meal Period Subclass
"All individuals who have been employed or are currently
employed by Defendant Dolgen California, LLC as non-exempt,
hourly Key Carriers at any of its Dollar General stores in
California, other than a "market" store, from January 9,
2020 to the present."
-- Expense Reimbursement Subclass
"All individuals who have been employed or are currently
employed by Defendant Dolgen California, LLC as non-exempt,
hourly Key Carriers at any of its Dollar General stores in
California from July 2, 2016 to the present."
-- Opening Shift Off-the-Clock Subclass
"All individuals who have been employed or are currently
employed by Defendant Dolgen California, LLC as non-exempt,
hourly Key Carriers at any of its Dollar General stores in
California, other than a "market" store, from January 9,
2020 to the present."
-- Closing Shift Off-the-Clock Subclass
"All individuals who have been employed or are currently
employed by Defendant Dolgen California, LLC as non-exempt,
hourly employees at any of its Dollar General stores in
California, other than a "market" store, from January 9,
2020 to the present."
-- Former Employee Subclass
"All individuals who were formerly employed by Defendant
Dolgen California, LLC as a non-exempt, hourly employee
from January 9, 2020 to the present who are members of the
On-Duty Meal Period Subclass, Opening Shift Off-the-Clock
Subclass, or Closing Shift Off-the-Clock Subclass."
-- Wage Statements Subclass
"All individuals who have been employed by the Defendant
Dolgen California, LLC as a non-exempt, hourly employee
from January 9, 2020 to the present who are members of the
On-Duty Meal Period Subclass, Opening Shift Off-the-Clock
Subclass, or Closing Shift Off-the-Clock Subclass."
-- PAGA Subclass
"All individuals who have been employed by the Defendant
Dolgen California, LLC from November 9, 2019 to the present
who are members of the On-Duty Meal Period Subclass,
Expense Reimbursement Subclass, Opening Shift Off-the-Clock
Subclass, or Closing Shift Off-the-Clock Subclass."
A copy of the Plaintiffs' motion to certify class dated May 9, 2022
is available from PacerMonitor.com at https://bit.ly/3wFKlwo at no
extra charge.[CC]
The Plaintiffs are represented by:
Mike Arias, Esq.
Craig S. Momita, Esq.
ARIAS SANGUINETTI WANG
& TORRIJOS LLP
6701 Center Drive West, Suite 1400
Los Angeles, CA 90045
Telephone: (310) 844-9696
Facsimile: (310) 861-0168
E-mail: mike@aswtlawyers.com
craig@aswtlawyers.com
- and -
Eric B. Kingsley, Esq.
Liane Katzenstein Ly, Esq.
Ari J. Stiller Esq.
KINGSLEY & KINGSLEY, APC
16133 Ventura Blvd., Suite 1200
Encino, CA 91436
Telephone: (818) 990-8300
Facsimile: (818) 990-2903
E-mail: eric@kingsleykingsley.com
liane@kingsleykingsley.com
ari@kingsleykingsley.com
DONG BANG: Lee Seeks Conditional Status of Collective FLSA Class
----------------------------------------------------------------
In the class action lawsuit captioned as YU JUNG LEE, individually,
and on behalf of others similarly situated, v. DONG BANG
CORPORATION, MI JA KIM, JOO HEE KIM and SANG KYU KIM, Case No.
2:22-cv-01336-MCA-ESK (D.N.J.), the Plaintiff asks the Court to
enter an order, pursuant to Section 16(b) of the Fair Labor
Standards Act (FLSA):
1. Conditionally certifying the proposed collective FLSA
class;
2. Implementing a procedure whereby Court-approved Notice of
Plaintiff's FLSA claims is sent (via U.S. Mail, e-mail,
and text message) to:
"All current and former servers who worked for Defendant
Dong Bang Corporation at any time within three years from
the date this lawsuit was filed through judgment;" and
3. Requiring Defendant to identify all putative collective
action members by providing a list of their names, last
known addresses, dates, and location of employment, phone
numbers, and email addresses in electronic and importable
format within 10 days of the entry of the order.
Dong Bang was founded in 1977. The company's line of business
includes manufacturing fluid power cylinders and actuators.
A copy of the Plaintiff's motion to certify class dated May 9, 2022
is available from PacerMonitor.com at https://bit.ly/3ak3DyL at no
extra charge.[CC]
The Plaintiff is represented by:
Ryan J. Kim, Esq.
RYAN KIM LAW, P.C.
222 Bruce Reynolds Blvd. Suite 490
Fort Lee, NJ 07024
E-mail: ryan@RyanKimLaw.com
EMBARK TECHNOLOGY: Faces Hardy Shareholder Suit in California Court
-------------------------------------------------------------------
Embark Technology, Inc. disclosed in its Form 10-Q Report for
period ended March 31, 2022, filed with the Securities and Exchange
Commission on May 11, 2022, that in April 1, 2022, a Tyler Hardy
filed a putative securities class action lawsuit against Embark and
certain of its executive officers and the former executive officers
of Northern Genesis Acquisition Corp., captioned "Hardy v. Embark
Technology, Inc., et al.," Case No. 3:22-cv-02090-JSC, in the
United States District Court for the Northern District of
California, purportedly on behalf of a class consisting of those
who purchased or otherwise acquired Embark common stock between
January 12, 2021 and January 5, 2022.
The complaint alleges that defendants made false and/or misleading
statements in violations of Sections 10(b) and 20(a) of the
Securities Exchange Act of 1934 and Rule 10b-5 promulgated
thereunder.
Embark Technology, Inc. operates an autonomous vehicle company.
EYEMED VISION: Amended Calendar Order Entered in Tate Class Suit
----------------------------------------------------------------
In the class action lawsuit captioned as CHANDRA TATE, et al., v.
EYEMED VISION CARE, LLC, Case No. 1:21-cv-00036-DRC (S.D. Ohio),
the Hon. Judge Douglas R. Cole entered an order granting the
Parties joint motion to amend the case schedule as follows:
-- Substantial completion of December 16, 2022
document production:
-- The Plaintiffs' class March 5, 2023
certification expert
report(s) and designation(s):
-- The Plaintiffs' class March 25, 2023
certification motion:
-- The Defendant's class April 17, 2023
certification expert
report(s) and designation(s):
-- The Defendant's opposition to June 15, 2023
class certification motion:
-- The Plaintiffs' reply in June 16, 2023
support of class certification
motion:
-- Rebuttal class certification June 29, 2023
expert report(s) and
designation(s):
-- Plaintiffs' merit expert July 10, 2023
report(s) and designation(s):
-- Defendant's merit expert August 14, 2023
report(s) and designation(s):
-- Fact discovery deadline: September 18, 2023
-- Rebuttal merit expert report(s) September 25, 2023
and designation(s):
-- Disclosure of lay witnesses: September 29, 2023
-- Expert discovery deadline: October 24, 2023
-- Dispositive motion deadline: January 15, 2024
Eyemed is located in Mason, Ohio, and is part of the Health and
Personal Care Stores Industry.
A copy of the Court's order dated May 9, 2022 is available from
PacerMonitor.com at https://bit.ly/3wFL8xm at no extra charge.[CC]
FENNEC PHARMACEUTICALS: Faces Chapman Shareholder Suit in NC Court
------------------------------------------------------------------
Fennec Pharmaceuticals Inc. disclosed in its Form 10-Q Report for
the quarterly period ended March 31, 2022, filed with the
Securities and Exchange Commission on May 12, 2022, that it is
facing a putative federal securities class action lawsuit against
the company, its Chief Executive Officer, Rostislav Raykov, and
Chief Financial Officer, Robert Andrade, in the United States
District Court for the Middle District of North Carolina, captioned
"Chapman v. Fennec Pharmaceuticals Inc. et al.," Case No.
1:20-cv-00812 (September 3, 2020).
The complaint alleged that prior to its August 10, 2020 receipt of
the FDA's Complete Response Letter concerning its new drug
application (NDA) for "PEDMARK," defendants made materially false
or misleading statements and failed to disclose material facts
about its third-party PEDMARK product manufacturing facility and
the impact the facility would have on regulatory approval for
Pedmark.
On December 3, 2020, the court appointed a lead plaintiff to
represent the putative class. On February 1, 2021, the lead
plaintiff filed an amended complaint. The amended complaint added
members of its Board of Directors as defendants, asserts a putative
class period from December 20, 2018 through August 10, 2020, makes
allegations similar to those in the original complaint, claims the
defendants violated Sections 10(b) and 20(a) of the Securities
Exchange Act of 1934 and SEC Rule 10b-5, and seeks an unspecified
amount of compensatory damages and attorneys' fees and costs.
On March 3, 2021, defendants filed a motion to dismiss the amended
complaint. On April 2, 2021, plaintiff filed an opposition to the
motion to dismiss. On April 16, 2021, defendants filed a reply in
support of the motion to dismiss, and on December 16, 2021, the
Magistrate Judge entered an order recommending that defendants'
motion to dismiss be granted in its entirety. On January 24, 2022,
plaintiff filed objections to the Magistrate Judge's
recommendation, and defendants filed their response on February 3,
2022. On March 2, 2022, the U.S. District Court Judge adopted the
Magistrate Judge's order and recommendation and entered an order
and judgment dismissing the amended complaint with prejudice.
On March 30, 2022, plaintiff filed a motion for post judgment
relief, seeking leave to file a second amended complaint. In his
proposed second amended complaint, plaintiff seeks to add
allegations stemming from the receipt of a second CRL following the
resubmission of the company's NDA for Pedmark, which the company
received on November 29, 2021, among other things. Defendants filed
an opposition to plaintiff's motion for post judgment relief on
April 20, 2022. Plaintiff submitted a reply in support of his
motion in early May 2022.
Fennec Pharmaceuticals Inc., a British Columbia corporation, is a
biopharmaceutical company focused on the development of Pedmark, a
unique formulation of sodium thiosulfate.
FENNEC PHARMACEUTICALS: Faces Fisher Shareholder Suit in NC Court
-----------------------------------------------------------------
Fennec Pharmaceuticals Inc. disclosed in its Form 10-Q Report for
the quarterly period ended March 31, 2022, filed with the
Securities and Exchange Commission on May 12, 2022, that it is
facing a putative federal securities class action lawsuit against
the company, its Chief Executive Officer, Rostislav Raykov, and
Chief Financial Officer, Robert Andrade, in the United States
District Court for the Middle District of North Carolina, captioned
"Fisher v. Fennec Pharmaceuticals Inc. et al.," Case No.
1:22-cv-00115.
Plaintiff Jeffrey D. Fisher asserts a putative class period from
May 28, 2021 through November 28, 2021, and alleges that defendants
violated Sections 10(b) and 20(a) of the Securities Exchange Act of
1934 and SEC Rule 10b-5 by making materially false and misleading
statements or omissions regarding the status of the company's
third-party "Pedmark" product manufacturing facility, the
facility's compliance with regulations and the impact its status
and compliance would have on regulatory approval for Pedmark in the
period leading up to the company's November 29, 2021 receipt of a
Complete Response Letter from the FDA for a subsequent "new drug
application" for Pedmark.
The complaint seeks an unspecified amount of damages and attorneys'
fees and costs. On April 11, 2022, Fisher filed a motion to be
appointed lead plaintiff and represent the putative class. In early
May 2022, the court appointed Fisher as lead plaintiff.
Fennec Pharmaceuticals Inc., a British Columbia corporation, is a
biopharmaceutical company focused on the development of Pedmark, a
unique formulation of sodium thiosulfate.
FORD MOTOR: Punitive Damages Awards in Nolan Suit Reduced to $537K
------------------------------------------------------------------
In the case, SHAWN NOLAN, et al., Plaintiffs and Appellants v. FORD
MOTOR COMPANY, Defendant and Appellant, Case No. E073850 (Cal.
App.), the U.S. Court of Appeals of California for the Fourth
District, Division Two, reduced the award of punitive damages from
$1 million to $536,714.19.
I. Background
Husband Jerry Nolan and wife Shawn Nolan bought a new Ford
Excursion from a Ford dealership. They chose to buy it with a
6.0-liter diesel engine, because Ford and the dealership both
represented that engine as higher-quality and longer-lasting. In
fact, the truck -- and especially the engine -- required repair
after repair. Several times, it lost power. Once, it broke down and
left the Nolans and their children stranded halfway to Lake Havasu.
By the time it had 120,000 miles on it, it had massive oil leaks
and was mostly inoperable.
The Nolans' expert testified that the 6.0L engine had a defective
air management system. Stuck or mistimed fuel injectors caused
incomplete combustion. Unburned hydrocarbons built up on and
eventually clogged up the turbocharger and the exhaust gas
recirculation (EGR) valve. This resulted in loss of power, oil
leaks, and early part failures, among other things.
Over Ford's objections, the Nolans introduced a number of internal
Ford emails and other internal Ford documents. These showed that
Ford had learned that certain parts of the 6.0L engine, including
fuel injectors, turbochargers, and EGR valves, were failing at
excessive rates. Some emails said that this information should be
kept secret.
The Nolans sued Ford, asserting causes of action premised on fraud
(under common law and under the Consumers Legal Remedies Act
[CLRA], Civ. Code, Section 1750 et seq.) and on breach of warranty
(under the Song-Beverly Consumer Warranty Act, Civ. Code, Section
1790 et seq. [Song-Beverly or Song-Beverly Act].). A jury found for
the Nolans on all causes of action; it awarded $59,634.91 in
compensatory damages, an additional $59,634.91 as a statutory
penalty, and $8.125 million in punitive damages. The trial court
reduced the punitive damages to $1 million.
Ford appeals. It contends that: (1) the trial court erred by
admitting the internal Ford emails and other documents, because
they were inadmissible hearsay; (2) the trial court erred by
admitting depositions of Ford employees taken in a former action,
because they were inadmissible hearsay; (3) the trial court erred
by allowing an expert to testify about the industry standard
punitive damages award; (4) the jury's damages awards under the
CLRA and for common-law fraud are inconsistent; (5) the jury's
damages award under the CLRA is not supported by substantial
evidence; (6) the Nolans cannot recover both a statutory penalty
and punitive damages; and (7) the $1 million punitive damages award
is unconstitutionally excessive.
The Nolans cross-appeal. They contend that the trial court erred by
denying preverdict interest and by basing its award of interest
between the verdict and the entry of judgment on the wrong interest
rate.
II. Discussion
A. The Internal FOrd Documents as Hearsay
Ford contends that the trial court erred by admitting internal Ford
emails and other internal Ford documents, because they were
inadmissible hearsay. Specifically, the documents that Ford
contends were erroneously admitted were Exhibits 39, 43, 47, 52,
56, 61, 62, 63, 64, 65, and 189 (documents).
The Court of Appeals holds that (i) Exhibits 47, 56, 61, 62, 63, 64
(at least as to Koszewnik's statements), 65, and 189 were
admissible as authorized admissions; and (ii) Exhibits 39, 41, 43,
52, and 64 (solely as to Freese's statements) were not admissible
as authorized admission.
B. The Depositions of Ford's Employees as Hearsay
Ford contends that the trial court erred by admitting the
depositions of Ford employees, taken in a former action, because
they were inadmissible hearsay.
The Court of Appeals finds that portions of the Eeley, Freeland,
Frommann, and Ligon depositions were played for the jury; and
because Ford did not object again (or, at least, has not shown us
that it did object again), it has forfeited any contention that the
admission of the depositions was erroneous.
C. Expert Testimony to an "Industry Standard" Germane to Punitive
Damages
Ford contends that the trial court erred by permitting an expert
witness to testify about an "industry standard" punitive damages
award. Ford's motion in limine sought to bar Dr. Luna from
testifying to the legal standards for punitive damages and to the
appropriate amount of punitive damages. The trial court, however,
ruled only that she could testify to Ford's financial condition.
Counsel for Ford agreed to this; they did not press for a ruling on
the issue actually presented in the motion for limine. This
constituted a forfeiture of that issue.
The Court of Appeals finds that Ford's counsel were free to raise
the issue again when Dr. Luna actually testified. However, they did
not. Thus, once again, they forfeited it. In any event, on direct,
Dr. Luna did not give any testimony on the topics specified in
Ford's motion in limine. On cross, Dr. Luna did give some testimony
about the legal standards applicable to punitive damages. However,
this was elicited by Ford's own counsel; Ford's counsel did not
object to Dr. Luna's answers, as nonresponsive or otherwise. Thus,
for the third and final time, they forfeited Ford's present
contention.
D. Inconsistent Damages Awards
The jury awarded $59,634.91 on the Nolans' CLRA claim and $6,115.11
on each of their fraud claims. Ford contends that these amounts are
inconsistent.
The Court of Appeals finds that the special verdict forms simply
never asked the jury what the Nolans' "actual damages" on the fraud
claims were. Had the forms done so, presumably the jury would have
awarded $59,634.91 on those claims, too. Ford also cites the
presumption that the jurors understand and follow the instructions.
However, they followed them in a reasonable manner when answering a
question that used a term that had not been defined in the
instructions. The Court of Appelas does not think that is the same
as not following the instructions; but if it is, then the very fact
that the jury awarded damages in two different amounts rebuts the
presumption.
E. Evidence Supporting the Damages Awards on the CLRA Claim
Ford contends that the amount of the jury's award of damages on the
CLRA claim is not supported by the evidence. The jury awarded the
exact same amount on the CLRA claim as on the Song-Beverly claim --
$59,634.91. The Court of Appeals concludes that the jury's award of
damages on the CLRA claim was supported by substantial evidence.
F. Recovery of Both a Statutory Penalty and Punitive Damages
Ford contends that the Nolans cannot recover both a statutory
penalty under the Song-Beverly Act and punitive damages on their
CLRA and fraud claims. The jury awarded the same amount of punitive
damages on the CLRA claim and on each of the three fraud claims.
The Court of Appeals concludes that the statutory penalty and the
punitive damages did not punish the same conduct. First, Ford's
liability under the CLRA -- including its liability for punitive
damages -- was based on its acts prior to the sale. By contrast,
its liability under the Song-Beverly Act -- including its liability
for a civil penalty -- was based on its acts after the sale.
Second, Anderson v. Ford Motor Co. (2022) 74 Cal.App.5th 946, pet.
for rev. filed Mar. 21, 2022, supports the Court of Appeals'
conclusions. Anderson is dispositive of Ford's present contention.
Nevertheless, because the opinion in Anderson is not yet final, the
Court of Appeals has analyzed the contention independently, and it
has come to the same conclusions as Anderson.
G. The Amount of Punitive Damages
Ford contends that the punitive damages award is unconstitutionally
excessive. The trial court explained its decision to reduce the
punitive damages award from $8.125 million to $1 million only as
follows: "The Court notes that the actual damages in this case are
just under $60,000, and the penalties are just under $60,000. So
using the principle of proportionality, the Court feels that an
adequate award is $1 million."
First, the Court of Appeals holds that the ratio of punitive to
compensatory damages in the case is $1 million to $59,634.91, or
about 16.7 to 1. Second, the maximum Song-Beverly penalty "does not
begin to justify" the $1 million punitive damages award. The award
must be justified, if at all, based on reprehensibility. However,
if Ford's conduct was sufficiently reprehensible, the maximum
Song-Beverly statutory penalty does not set a ceiling on a punitive
damages award.
Third, an award of punitive damages at the high-water mark of 9 to
1 is called for. The Court of Appelas is not convinced that any
lesser ratio will be adequate to deter and punish. At the same
time, it is not convinced that there is any special justification
for any greater ratio. Accordingly, it will reduce the punitive
damages to $536,714.19.
H. Prejudgment Interest
In their cross-appeal, the Nolans contend that the trial court
erred by denying preverdict interest and by basing prejudgment
interest on the wrong interest rate. The trial court ruled that the
appropriate interest rate was seven percent, not ten percent. It
denied prejudgment interest for the period before the verdict,
because until then, the amount of damages was not certain. However,
it did grant prejudgment interest for the period between the
verdict and the entry of judgment.
The Court of Appeals opines that the trial court properly denied
preverdict interest. First, it holds that the Nolans' damages are
not on any "loan or forbearance." The Nolans and Ford did not
"contract in writing" for any interest rate that Ford was to pay.
Hence, it is irrelevant that the truck was primarily for personal,
family, or household use. The applicable interest rate was seven
percent.
Second, the jury had to subtract an uncertain component from a
certain component. Thus, there was not even a certain minimum
amount for which Ford was liable. "The rationale for precluding
prejudgment interest on unliquidated claims is 'that it is
unreasonable to expect a defendant to pay a debt before he or she
becomes aware of it or is able to compute its amount.' It is
unreasonable to expect a defendant to pay a debt when an uncertain
amount must be subtracted from a certain amount.
III. Disposition
The Court of Appeals holds that the trial court erred by admitting
the emails without a limiting instruction; however, the emails were
admissible as evidence of Ford's knowledge, and the trial court's
failure to give a limiting instruction was not prejudicial. We will
also hold that the $1 million punitive damages award is
unconstitutionally excessive and must be reduced to $536,714.19.
Otherwise, the Court of Appeals finds no error that has been
preserved for appeal. Hence, it will modify and affirm.
For these reasons, the award of punitive damages is reversed. In
all other respects, the judgment is affirmed. On remand, the trial
court must enter a modified judgment reducing the award of punitive
damages from $1 million to $536,714.19. In the interest of justice,
each side will bear its own costs on appeal.
A full-text copy of the Court's May 13, 2022 Opinion is available
at https://tinyurl.com/2ke3aevj from Leagle.com.
Lewis Brisbois and Paul Efstratis --
Paul.Efstratis@lewisbrisbois.com; Sanders Roberts, Justin H.
Sanders -- jsanders@sandersroberts.com -- and Sabrina C. Narain;
and Jones Day, Nathaniel P. Garrett -- ngarrett@jonesday.com --
David J. Feder, Margaret A. Maloy, and Emily F. Knox for the
Defendant and Appellant.
Rosner, Barry & Babbitt, Hallen D. Rosner -- Hal@rbblawgroup.com --
and Arlyn L. Escalante -- arlyn@rbblawgroup.com; Knight Law Group,
Roger R. Kirnos, Lauren A. Ungs, and Christopher E. Swanson; the
Altman Law Group and Bryan C. Altman; Greines, Martin, Stein &
Richland, Cynthia E. Tobisman for the Plaintiffs and Appellants.
FOURPOINT ENERGY: Rounds Suit Seek to Certify Settlement Classes
----------------------------------------------------------------
In the class action lawsuit captioned as Kenny Wayne Rounds and
Randy Carl Smith, on behalf of themselves and all others similarly
situated, v. FourPoint Energy, LLC n/k/a Unbridled Resources, LLC,
Case No. 5:20-cv-00052-P (W.D. Okla.), the Plaintiffs ask the Court
to enter an order:
1. certifying the Settlement Classes for Settlement purposes;
2. preliminarily approving the Settlement;
3. appointing Plaintiffs as Class Representatives for the
Settlement Classes;
4. appointing Reagan E. Bradford and Ryan K. Wilson as Co-
Lead Class Counsel, and David R. Gleason and Charles V.
Knutter as Additional Class Counsel;
5. approving the form and manner of the proposed Notice;
6. appointing JND Legal Administration as Settlement
Administrator; and
7. setting a hearing date for final approval of the
Settlement and application for an award of Attorneys'
Fees, Litigation Expenses and Administration, Notice, and
Distribution Costs, and a Case Contribution Award to the
Plaintiff.
The Plaintiffs have obtained a significant recovery for the
Settlement Classes. Specifically, the Plaintiffs have reached a
settlement with Defendant worth $3.65 million in cash value for two
settlement classes:
Class I, underpayment of royalty associated with gas used,
consumed, or lost off the lease premises or in the
manufacture of products; and
Class II, statutory interest owed for late payments of oil-
and-gas proceeds under Oklahoma law.
As an additional benefit obtained for class members, the Defendant
changed its internal policies regarding the payment of statutory
interest to owners for late payments in Oklahoma as a result of
this litigation.
FourPoint is a private energy exploration and production company
headquartered in Denver, Colorado, and focusing on the Anadarko and
Permian Basins.
A copy of the Plaintiffs' motion dated May 5, 2022 is available
from PacerMonitor.com at https://bit.ly/3wCAmbk at no extra
charge.[CC]
The Plaintiffs are represented by:
Reagan E. Bradford, Esq.
Ryan K. Wilson, Esq.
BRADFORD & WILSON PLLC
431 W. Main Street, Suite D
Oklahoma City, OK 73102
Telephone: (405) 698-2770
E-mail: reagan@bradwil.com
ryan@bradwil.com
- and -
David R. Gleason, Esq.
Charles V. Knutter, Esq.
MORICOLI KELLOGG & GLEASON, P.C.
211 N. Robinson
One Leadership Square, St. 1350
Oklahoma City, OK 73102
Telephone: (405) 235-3357
E-mail: dgleason@moricoli.com
cknutter@moricoli.com
FSM ZA: Patzfahl Seeks to Certify Class of Delivery Drivers
-----------------------------------------------------------
In the class action lawsuit captioned as Jason Patzfahl, On behalf
of himself and those similarly situated, v. FSM ZA, LLC, et al.,
Case No. 2:20-cv-1202 (E.D. Wisc.), the Plaintiff asks the Court to
enter an order:
1. certifying this action as a class action pursuant to Rules
23(a) and 23(b)(3) of the Federal Rules of Civil
Procedure:
"All current and former delivery drivers employed by the
Defendants at the Defendants' Toppers Pizza stores in the
State of Wisconsin between the date two years prior to the
filing of the original complaint and the date of final
judgment in this matter (Rule 23 Class)."
2. Certifying the Wisconsin state claims as a class action
under Rule 23;
3. Appointing Jason Patzfahl as class representative;
4. Appointing Biller & Kimble, LLC and Walcheske & Luzi, LLC
as class counsel;
5. Approving the notices to be delivered to class members by
mail and email; and
6. providing a 60-day class action certification notice
period.
A copy of the Plaintiff's motion to certify class dated May 11,
2022 is available from PacerMonitor.com at https://bit.ly/3lFDhJR
at no extra charge.[CC]
The Plaintiff is represented by:
Andrew R. Biller, Esq.
Andrew P. Kimble, Esq.
Riley E. Kane, Esq.
BILLER & KIMBLE, LLC
www.billerkimble.com
8044 Montgomery Rd., Suite 515
Cincinnati, OH 45236
Telephone: (513) 202-0710
Facsimile: (614) 340-4620
E-mail: abiller@billerkimble.com
akimble@billerkimble.com
rkane@billerkimble.com
- and -
Scott S. Luzi, Esq.
WALCHESKE & LUZI, LLC
15850 W. Bluemound Road, Suite 304
Brookfield, WI 53005
Telephone: (262) 780-1953
Facsimile: (262) 565-6469
E-mail: sluzi@walcheskeluzi.com
GEICO CHOICE: Class Cert. Deadlines Entered in Jones Suit
---------------------------------------------------------
In the class action lawsuit captioned as ISIAH A. JONES v. GEICO
CHOICE INSURANCE COMPANY, Case No. 2:22-cv-00558-GEKP (E.D. Pa.),
the Hon. Judge Gene E.K. Pratter entered an order that the
following deadlines apply:
1. Any motions for class certification must be filed on or
before November 1, 2022;
2. Any motions in opposition to class certification must be
filed on or before December 16, 2022; and
3. All discovery, including expert discovery and depositions,
must be completed on or before Jan. 27, 2023.
GEICO Choice operates as an insurance company.
A copy of the Court's order dated May 12, 2022 is available from
PacerMonitor.com at https://bit.ly/3Gi9Zuo at no extra charge.[CC]
GEICO CHOICE: Class Cert. Deadlines Entered in Purcell Suit
-----------------------------------------------------------
In the class action lawsuit captioned as MICHAEL PURCELL v. GEICO
CHOICE INSURANCE COMPANY, Case No. 2:22-cv-00825-GEKP (E.D. Pa.),
the Hon. Judge Gene E.K. Pratter entered an order that the
following deadlines apply:
1. Any motions for class certification must be filed on or
before November 1, 2022;
2. Any motions in opposition to class certification must be
filed on or before December 16, 2022; and
3. All discovery, including expert discovery and depositions,
must be completed on or before Jan. 27, 2023.
GEICO Choice operates as an insurance company.
A copy of the Court's order dated May 12, 2022 is available from
PacerMonitor.com at https://bit.ly/3wPBUgR at no extra charge.[CC]
GENERAL MOTORS: Interim Class Counsel Appointed in Harrison Suit
----------------------------------------------------------------
In the case, DANNY HARRISON, et al., individually and on behalf of
similarly situated individuals, Plaintiffs v. GENERAL MOTORS, LLC,
Defendant, Case No. 21-12927 (E.D. Mich.), Judge Laurie J.
Michelson of the U.S. District Court for the Eastern District of
Michigan, Southern Division, appoints Miller Law Firm, Berger
Montague, Capstone Law, and Gordon & Partners as interim class
counsel.
Danny Harrison and 40 other named Plaintiffs, both individually and
on behalf of a proposed nationwide and 23 statewide classes, are
suing GM for allegedly manufacturing, marketing, distributing, and
selling certain vehicles with defective valve train systems. The
Plaintiffs allege 71 counts in their amended complaint under the
Magnuson-Moss Warranty Act and the laws of 22 states.
Though the classes that the Plaintiffs seek to represent have not
yet been certified under Federal Rule of Civil Procedure 23, four
firms ask the Court to appoint them as interim class counsel. These
firms are the Miller Law Firm, Berger Montague, Capstone Law, and
Gordon & Partners.
Judge Michelson agrees with the Plaintiffs' counsel that it would
benefit the purported class members to designate interim class
counsel at this point. That way, there is a clear leadership
structure in place for the litigation, and both the named
Plaintiffs and the purported class members know who is responsible
for advancing their interests. And as the counsel points out,
designating interim class counsel early on makes it so the parties
can focus on litigating the case, rather than dealing with disputes
over who truly represents the purported classes.
GM disagrees and opposes the motion because it is "premature and
unnecessary." Judge Michelson holds that is correct that, to the
Court's knowledge, no other related cases have been filed. So
there does not seem to be an imminent dispute over who will
represent the purported classes. And courts in this District
typically grant motions for interim class counsel only when there
are related pending lawsuits.
But the Plaintiffs' counsel have provided some evidence that other
lawsuits may be forthcoming. Further, and perhaps most importantly,
GM has not identified any prejudice it would face if the Court
granted the motion. In fact, it may be better for GM to have a
clear understanding of the attorneys responsible for representing
the purported classes' interests.
So because the interests of the potential class members would be
better protected and GM claims no prejudice, Judge Michelson finds
that it is appropriate to appoint interim class counsel at this
time.
That leaves the question of whether the four firms asking to be
appointed -- the Miller Law Firm, Berger Montague, Capstone Law,
and Gordon & Partners—are suitable to act as interim class
counsel. Judge Michelson finds that they are.
The same Rule 23 considerations govern appointing class counsel
both before and after class certification. Rule 23 provides four
factors the Court must consider when appointing counsel: "the work
counsel has done in identifying or investigating potential claims
in the action"; "counsel's experience in handling class actions,
other complex litigation, and the types of claims asserted in the
action"; "counsel's knowledge of the applicable law"; "and the
resources that counsel will commit to representing the class."
As to the first factor, Judge Michelson finds that the firms have
done substantial work to identify and investigate the Plaintiffs'
claims, as demonstrated in the complaint and amended complaint. The
firms' experience in handling car-related products liability class
actions and knowledge of applicable law likewise show they would be
adequate interim class counsel. All four firms have worked on
numerous class actions, many of which have involved car-part
defects. This indicates not only knowledge of how to handle complex
litigation, but familiarity with the legal and factual bases of the
claims at issue.
And given the counsel's experience with litigating and settling
class-action suits, Judge Michelson is confident that the counsel
is familiar with the resources it takes to represent a class and is
willing to employ such resources to best represent the purported
classes. This is further demonstrated by their conduct in the case
so far, which has included filing two extensive complaints and
corresponding with GM's counsel on the issue of arbitration.
Between the four law firms, there will be sufficient resources
available for this litigation.
In all, the Rule 23 considerations each favor appointing the Miller
Law Firm, Berger Montague, Capstone Law, and Gordon & Partners as
interim class counsel. Thus, the motion to appoint interim class
counsel is granted by Judge Michelson.
A full-text copy of the Court's May 13, 2022 Opinion & Order is
available at https://tinyurl.com/2dvnempn from Leagle.com
GOLDEN RULE: Court Denies Bid to Certify Class in Smith Suit
------------------------------------------------------------
In the case, COLLYER SMITH, individually and on behalf of all those
similarly situated, Plaintiff v. GOLDEN RULE INSURANCE COMPANY,
SAVVYSHERPA ADMINISTRATIVE SERVICES, LLC, and UNITED HEALTHCARE
SERVICES, INC., Defendants, Case No. 1:20-cv-02066-JMS-TAB (S.D.
Ind.), Judge Jane Magnus-Stinson of the U.S. District Court for the
Southern District of Indiana, Indianapolis Division, denies Mr.
Smith's Motion for Class Certification.
I. Introduction
Defendant Golden Rule Insurance Co. issued a health insurance
policy to Plaintiff Collyer Smith ("Mr. Smith") that also provided
coverage for Mr. Smith's son, Collyer C. Smith. After coverage was
denied for certain substance-abuse-related treatments received by
Collyer C., Mr. Smith initiated the litigation on behalf of two
putative classes of similarly situated individuals against Golden
Rule Insurance Co., Savvsherpa Administrative Services, LLC, and
United HealthCare Services, Inc. (collectively, "Golden Rule").
Presently pending is Mr. Smith's Motion for Class Certification,
which is ripe for the Court's decision. In reviewing the parties'
briefs on the Motion for Class Certification, the Court identified
potential issues with Mr. Smith's standing to assert his individual
claims. The Court sought additional information from the parties,
and that information confirmed the Court's concerns.
Judge Magnus-Stinson's Order sets forth the factual and procedural
background of the case, then discusses standing -- which is a
threshold issue that the Court must consider at the outset -- and
Mr. Smith's Motion for Class Certification. While some of the
background facts relate exclusively to class certification, they
provide an important backdrop for the Court's discussion.
II. Background
On Feb. 1, 2013, Golden Rule issued an All Family Health Insurance
Policy to Mr. Smith. It provided coverage to Mr. Smith, Mr. Smith's
wife, and Collyer C. (as a dependent), including coverage for
mental health and substance abuse treatment.
When Golden Rule receives a claim under the Policy, it obtains the
necessary medical records in connection with the services and: (1)
generally sends the information to one of three companies --
Medical Examiners Services ("MES"), Medical Review Institute of
America ("MRIOA"), and MCMC, LLC ("MCMC") (collectively, the
"Third-Party Review Companies") -- who employ medical professionals
("Third-Party Reviewers") to review the services for a medical
necessity determination; or (2) sometimes sends the information to
Golden Rule's internal medical director to review the claim. This
process is used for determining medical necessity for all types of
medical treatment, not just substance abuse treatment.
Collyer C. had battled substance addiction since he was a teenager,
and had sought treatment for mental health problems and opioid
addiction. In 2017, Collyer C. voluntarily enrolled in a five-month
program at PACE Recovery Center ("PACE"), a nationally recognized
mental health and addiction treatment center. Part of this
treatment was what the Smiths claimed was an intensive outpatient
program ("IOP"), which treated addiction and mental health illness
by providing support mechanisms and coping strategies and assisting
with relapse management. IOPs are geared toward individuals, like
Collyer C., who are more stable and do not require daily
detoxification or round-the-clock supervision. Collyer C. incurred
$44,290 in costs for his treatment at PACE.
While at PACE and also after his discharge, Collyer C. had random
urine analysis tests ("UAs") to assess and monitor his condition.
Collyer C. incurred $1,560.30 in costs for the UAs he had during
this time. He died from a drug overdose on Jan. 12, 2018, shortly
after completing his treatment at PACE.
Leading up to his treatment at PACE, Golden Rule had paid some of
the claims for substance abuse treatment which Collyer C. had
submitted over a period of several years, including
hospitalizations and outpatient therapy. After Collyer C.'s
treatment at PACE, Mr. Smith submitted the $44,290 in claimed IOP
costs and the $1,560.30 in UA costs to Golden Rule for coverage
under the Policy.
On March 9, 2018, Golden Rule sent a letter to Mr. Smith regarding
the IOP claims related to Collyer C.'s treatment at PACE. Teh
Letter stated that a physician has reviewed Collyer C.'s medical
information and determined that the services are not medically
necessary as defined by his health insurance plan. Therefore,
benefits are not available for these services. Mr. Smith appealed
Golden Rule's decision regarding coverage for the IOP claims and in
a May 3, 2018 letter, Golden Rule advised him that it was upholding
its initial decision.
As for costs associated with the UAs, the Third-Party Reviewers
concluded that the UAs Mr. Smith submitted to Golden Rule were not
clinically appropriate or medically necessary. Mr. Smith appealed
Golden Rule's decision regarding coverage for the UA claims and in
a May 3, 2018 letter, Golden Rule advised him that it was upholding
its initial decision.
A total of four Third-Party Reviewers who were all Board-certified
psychiatrists reviewed Collyer C.'s medical records and other
claim-specific details, and after each review, all of the
Third-Party Reviewers concluded that in their medical judgment the
IOP and UA services were not medically necessary. Golden Rule's
expert, Dr. Steven Batki, reviewed Collyer C.'s medical records and
relevant medical literature and concluded that Golden Rule's
denials of the IOP services and UA charges were reasonable.
After Golden Rule denied coverage for the $44,290 in IOP costs and
the $1,560.30 in UA costs, Mr. Smith initiated this litigation. He
seeks to represent two classes of similarly situated individuals:
The "UA Class," defined as: All Golden Rule policyholders (a) whose
health insurance contracts covered mental health and substance
abuse services (b) on whose behalf claims for urine drug tests in
connection with substance abuse treatment were submitted; (c) that
were denied (d) because the tests were deemed not medically
necessary (or verbiage to the same effect).
The "IOP Class," defined as: All Golden Rule policyholders (a)
whose health insurance contracts covered mental health and
substance abuse services (b) on whose behalf claims for IOP
services in connection with substance abuse treatment were
submitted; (c) that were denied (d) because the services were
deemed not medical necessary (or verbiage to the same effect).
Mr. Smith sets forth claims for: (1) breach of contract related to
coverage for UAs; (2) breach of contract related to coverage for
IOP treatment; (3) breach of contract for violating the Paul
Wellstone and Pete Domenici Mental Health Parity and Addiction
Equity Act of 2008 in connection with the denial of UA claims; and
(4) breach of contract for violating the Parity Act in connection
with the denial of IOP claims. He originally sought prospective and
injunctive relief, but the Court granted Golden Rule's Motion to
Dismiss as to any claims seeking that type of relief on March 11,
2021. Accordingly, only Mr. Smith's claims for monetary damages
remain.
III. Discussion
A. Article III Standing
1. The UA Class
Judge Magnus-Stinson holds that Mr. Smith has maintained throughout
this litigation, up until just a few weeks ago, that he paid
$1,560.30 (or maybe even just $1,377.15) in UA charges and that he
is seeking that amount in this lawsuit in connection with his UA
claims. Discovery in the case closed on Dec. 6, 2021, and Mr. Smith
never sought to supplement his interrogatory answers or any other
filings or representations containing the $1,560.30 figure until
now.
Judge Magnus-Stinson determines that this attempt to salvage the UA
claim, in the face of a standing challenge, comes too late in the
litigation for justice to allow it. Mr. Smith will be bound by his
numerous and consistent representations that he is seeking
$1,560.30 for his UA claims. That amount is undisputedly well
within the Policy's $8,000 deductible. Because the amount is within
the deductible, Mr. Smith did not suffer an injury in fact as a
result of Golden Rule's denial of his UA claims. Accordingly, Mr.
Smith lacks standing, the Court does not have subject-matter
jurisdiction over Mr. Smith's UA claims, and they are dismissed.
2. The IOP Class
Mr. Smith has not sustained his burden of showing that the amounts
he paid for IOP services provided by PACE to Collyer C. exceeded
the Policy's deductible. Rather, Collyer C.'s medical records show
that he was receiving inpatient treatment at PACE from September
2017 to early December 2017 when he transitioned to a sober living
environment and began receiving IOP treatment. The cost of that IOP
treatment, incurred only after Collyer C. moved to a sober living
environment, was at most $4,000, which is well within the Policy's
$16,000 deductible for IOP services.
Accordingly, Judge Magnus-Stinson holds that Mr. Smith does not
have standing to assert claims for IOP services received by Collyer
C. and the Court lacks subject-matter jurisdiction over those
claims. Mr. Smith's IOP claims are dismissed for lack of
jurisdiction.
B. Motion for Clss Certification
Judge Magnus-Stinson has already found that Mr. Smith does not have
standing to assert his individual claims related to unpaid UA and
IOP expenses in the case, resulting in the dismissal of his claims
for lack of subject-matter jurisdiction. Accordingly, because Mr.
Smith has no individual claims, his Motion for Class Certification
is denied. This is a final, appealable order, but the Court takes
the time to note that even if standing were found upon appellate
review, class treatment would likely not be appropriate.
IV. Conclusion
The case involves tragic circumstances, and Judge Magnus-Stinson is
sympathetic to Mr. Smith and his loss. But Congress limits the
Court's power to decide controversies to those where the plaintiff
has suffered an injury in fact at the hands of a defendant. Because
Mr. Smith has only asserted UA and IOP claims in the case, and
since he has not shown that his payments for UA and IOP services
fell outside of the Policy's deductible, he has not shown a
concrete injury. He therefore does not have standing to assert his
claims and the Court does not have the power to decide those
claims. The Court is required to adhere to Congress's limitation on
its jurisdiction.
Accordingly, for the foregoing reasons, Judge Magnus-Stinson
dismisses without prejudice all of Mr. Smith's claims for lack of
subject-matter jurisdiction. She denies as moot Golden Rule's
Motion for Leave to File Limited Surreply to Respond to New Facts
and Arguments in Plaintiff's Class Certification Reply Brief. She
grants in part and denies in part Mr. Smith's Motion for Leave to
File Corrected Report. Lastly, Judge Magnus-Stinson denies Mr.
Smith's Motion for Class Certification. Final judgment will be
entered accordingly.
A full-text copy of the Court's May 13, 2022 Order is available at
https://tinyurl.com/y4h6w236 from Leagle.com.
GOYA FOODS: Ortiz Labor Suit Seeks Class Certification
------------------------------------------------------
In the class action lawsuit captioned as JOSE ORTIZ, and SAUL
HERNANDEZ, individually and on C.A. NO. 2:19-CV-19003-SRC-CLW
behalf of all others similarly situated, v. GOYA FOODS, INC., and
A.N.E. SERVICES, INC., Case No. 2:19-cv-19003-SRC-CLW (D.N.J.), the
Plaintiffs ask the Court to enter an order granting their motion
for class certification, pursuant to and finding the requirements
of Federal Rule of Civil Procedure 23(a) and (b) met, and
certifying a class consisting of:
"All persons who worked, on a full time basis, for Defendants
in the Commonwealth of Pennsylvania from October 15, 2016 to
the time of trial as sales representatives and signed a
Broker Agreement, directly or on behalf of a business
entity."
Goya Foods is an American producer of a brand of foods sold in the
United States and many Spanish-speaking countries. It has
facilities in the United States, Puerto Rico the Dominican Republic
and Spain.
A copy of the Plaintiffs' motion to certify class dated May 11,
2022 is available from PacerMonitor.com at https://bit.ly/3wLqIC4
at no extra charge.[CC]
The Plaintiffs are represented by:
Anthony L. Marchetti, Jr., Esq.
MARCHETTI LAW, P.C.
317 Delsea Drive, PO BOX 656
Sewell, NJ 08080
Telephone: (856) 824-1001
Facsimile: (267) 219-4838
E-mail: amarchetti@marchettilawfirm.com
- and -
Ravi Sattiraju, Esq.
SATTIRAJU & THARNEY, LLP
50 Millstone Road
Building 300, Suite 202
East Windsor, NJ 08520
Telephone: (609) 469-2110
E-mail: rsattiraju@s-tlawfirm.com
- and -
Harold I. Lichten, Esq.
Benjamin Weber, Esq.
Anastasia Doherty, Esq.
LICHTEN & LISS-RIORDAN, P.C.
729 Boylston St. No. 2000
Boston, MA 02114
Telephone: (617) 994-5800
Facsimile: (617) 994-5801
E-mail: hlichten@llrlaw.com
bjweber@llrlaw.com
adoherty@llrlaw.com
HOLTZMAN ENTERPRISES: Reply in Support of Class Cert Due August 30
-------------------------------------------------------------------
In the class action lawsuit captioned as German, et al., v.
Holtzman Enterprises, Inc., Case No. 1:19-cv-03540 (D. Colo), the
Hon. Judge Philip A. Brimmer entered an order that:
-- The Plaintiffs shall file a reply in support of Plaintiffs'
Motion for class certification and a response to the
Defendant's motion to Decertify Fair Labor Standards Act
(FLSA) Collective Action on or before August 30, 2022.
-- The Defendant shall file a reply in support of Defendant's
Objection to Courtroom Minutes/Minute Order on or before
August 30, 2022.
The suit alleges violation of the FLSA involving states civil
rights -- employment.
Holtzman is located in Westminster, Colorado and is part of the
hair care services industry.[CC]
HOMELAND SECURITY: Court Dismisses Fraihat Claims in Lewis v. Wolf
------------------------------------------------------------------
In the case, LAURELL DAWIN LEWIS, Petitioner v. CHAD T. WOLF, et
al., Respondents, Case No. EDCV 21-00153-JGB (AGR) (C.D. Cal.),
Judge Jesus G. Bernal of the U.S. District Court for the Central
District of California, granted the Respondents' motion to dismiss
the Fraihat claims in the Petition for Writ of Habeas Corpus.
Pursuant to 28 U.S.C. Section 636, Judge Bernal has reviewed the
entire file de novo, including the magistrate judge's Report and
Recommendation. No objections to the Report have been filed. Judge
Bernal accepts the findings and recommendation of the Report.
Accordingly, he granted the Respondents' motion to dismiss the
Fraihat claims in the Petition for Writ of Habeas Corpus. The
Petitioner's non-Fraihat claims are stayed pending resolution of
the Roman class action, Roman v. Wolf, C.D. Cal., CV-20-768 TJH
(PVCx). The Petitioner's motion to amend the Petition is denied as
moot in light of this disposition.
The parties are directed to file a motion to lift the stay after
resolution of the Roman class action if the Petitioner wishes to
pursue the action.
The Clerk is directed to administratively close the matter.
A full-text copy of the Court's May 13, 2022 Order is available at
https://tinyurl.com/5ajyhxyn from Leagle.com.
INTEGRATED TECH: Collective Settlement Deal Gets Final Nod
----------------------------------------------------------
In the class action lawsuit captioned as PAUL MONPLAISIR, et al.,
v. INTEGRATED TECH GROUP, LLC, et al., Case No. 3:19-cv-01484-WHA
(N.D. Cal.), the Hon. Judge William Alsup entered an order granting
final certification and approval of the collective's settlement
agreement with defendants.
In particular, as discussed at oral argument, the publicity
provision should be removed and the notice to the collective should
be modified to clarify the probable effect of the release. The
collective's FLSA claims against defendants are hereby dismissed
with prejudice as provided in the settlement agreement.
The Court shall retain exclusive jurisdiction over the settlement
agreement as described therein, including the administration and
consummation of the settlement.
Counsel's further request for authorization for counsel and CPT
Group to begin administration and distribution of the proceeds of
the settlement in accordance with the plan of allocation is
granted. Counsel's further request for approval of Florida Legal
Services as the cy pres beneficiary of unclaimed funds as provided
in the settlement agreement is granted. This order further awards
attorney's fees in the amount of $227,000.
This order further awards counsel costs in the amount of $100,000,
also divided proportionately between the two law firms as
originally requested. This amount shall be paid promptly from the
settlement fund. Further costs and expenses under $12,500 that may
be incurred in connection with the settlement administration
process may be disbursed from the settlement fund without further
application to the Court.
In brief, plaintiff worked as a technician for the defendants,
which provide home installation services for cable and
telecommunications equipment. The complaint alleges that defendants
required its technicians to work significant portions of their day
off-the-clock, including during meal periods and time spent
driving. Additionally, the defendants allegedly pressured employees
to alter or underreport time and systemically undercalculated their
pay.
The Plaintiff sued in March 2019. An August 2019 order
conditionally certified a nationwide collective under FLSA. A March
2020 order, however, compelled many 1 members of the collective to
arbitration, which appeared to cut the collective from nearly 380
to 132 members. Undaunted, the plaintiff moved to certify a Rule 23
class composed solely of California employees, the vast majority of
which had signed arbitration agreements.
Integrated Tech was founded in 2013. The Company's line of business
includes the warehousing and storage of a general line of goods.
A copy of the Court's order dated May 12, 2022 is available from
PacerMonitor.com at https://bit.ly/3z7hUZI at no extra charge.[CC]
JENNMAR CORP: Ct. Certifies Class, Subclasses in Stacy Labor Suit
-----------------------------------------------------------------
In the class action lawsuit captioned as CHARLIE STACY and CLIFFORD
ALLEN, individually and on behalf of all others similarly situated,
v. JENNMAR CORPORATION OF VIRGINIA, INC., ET AL., Case No.
1:21-cv-00015-JPJ-PMS (W.D.Va.), the Hon. Judge James P. Jones
entered an order:
1. granting the motion for class certification and Court-
Authorized Notice, pursuant to Federal Rule 23(a) and
23(b)(3);
2. certifying a class defined as follows:
"All current and former non-exempt employees employed by
defendants, in the Commonwealth of Virginia, within three
years prior to the filing of this action to the present;"
3. certifying certified subclasses defined as follows:
-- VMWA/VWPA Subclass One: All individuals who work or
have worked for Defendants as non-exempt hourly
employees performing compensable duties for Defendants'
benefit, in Virginia, at anytime within the three year
period prior to filing this lawsuit who were: (i) paid
on an hourly basis and; (ii) were not paid all wages
due and owing for work duties performed in the
Commonwealth of Virginia as a result of the Defendants'
class-wide payroll practice of shaving shift minutes
and/or hours worked; (iii) who were subject to
Defendants' payroll policies and practices denying
payment of wages for all hours worked and/or payment of
overtime wages at the time-and-one-half rate for
overtime worked over 40 hours per week; and/or (vi) who
were not paid all wages due and owing upon separation
of employment.
-- Breach of Contract Subclass Two: All individuals who
work or have worked for Defendants as non-exempt hourly
employees performing compensable work duties for the
Defendants' benefit, in Virginia, at any time within
the five year period prior to the filing of this
lawsuit who were: (i) paid on an hourly basis and; (ii)
were not paid all wages contractually due and owing for
work duties performed as a result of Defendants' class-
wide payroll practice of shaving shift minutes and/or
hours worked; (iii) were subject to Defendants' payroll
policies and practices denying payment of wages for all
hours worked each week; and/or (vi) who were not paid
all wages due and owing upon separation of employment.
-- Quantum Meruit Subclass Three: All individuals who work
or have worked for Defendants as non-exempt hourly
employees performing compensable work duties for
Defendants' benefit, in Virginia, at any time within
the five year period prior to the filing of this
lawsuit who were: (i) paid on an hourly basis and; (ii)
were not paid all wages reasonably due and owing for
compensable work duties performed for the benefit of
Defendants as a result of Defendants' class-wide
payroll practice of shaving shift minutes and/or hours
worked; (iii) who were subject to the Defendants'
payroll policies and practices denying payment of wages
for all hours worked for the Defendants' benefit each
week; and/or (vi) who were not paid all wages due and
owing upon separation of employment.
4. appointing Zipin, Amster & Greenberg, LLC, and The Spiggle
Law Firm, PLLC, as class counsel; and
5. directing the defendants to provide to class counsel an
updated mailing list, in alphabetical order by employee
last name, with the job title, last known mailing address,
dates of employment, shift assignments, and location of
employment of all potential members of this class action;
The Plaintiffs Charlie Stacy and Clifford Allen filed this class
action on behalf of themselves and all individuals similarly
situated, alleging that defendants violated Virginia law by not
paying overtime or minimum wage to its workers and failing to
provide accurate itemized wage statements.
A copy of the Court's order dated May 6, 2022 is available from
PacerMonitor.com at https://bit.ly/39KUMpf at no extra charge.[CC]
KANGMEI PHARMACEUTICAL: Pays US$364MM to Investors in Class Suit
----------------------------------------------------------------
Caixin Global reports that China's scandal-plagued drugmaker
Kangmei Pharmaceutical Co. Ltd. paid CNY2.46 billion ($364 million)
in compensation to investors, closing the country's first
securities class-action lawsuit against a fraudulent issuer.
More than 52,000 Kangmei investors received cash payments under the
company's reorganization plan, according to Li Chao, vice chairman
of the China Securities Regulatory Commission (CSRC), at a briefing
on May 26, Caixin relays.
Among the investors, 99.4% are small retail investors with losses
of less than CNY500,000, Li said.
Kangmei, one of China's biggest publicly traded drugmakers, was
accused of financial reporting fraud involving CNY88.6 billion of
overstatements between 2016 and 2018. Regulators found that the
company used fake bank deposit slips to inflate cash reserves,
forged documents for nonexistent business activities and
transferred company funds to related parties to trade in its own
stock.
In November 2021, a court in Guangzhou made a landmark ruling in
the country's first securities class-action lawsuit, ordering
Kangmei to pay CNY2.46 billion to more than 50,000 shareholders who
lost money because of the fraud, Caixin recalls.
In January, Ma Xingtian, the former chairman of Kangmei, was
sentenced to 12 years in prison and fined CNY1.2 million for
manipulating the securities market, failure to disclose important
information and bribery, the report says.
Kangmei Pharmaceutical became the first listed company to default
on a bond issue when the market reopened on Feb. 3, 2021, after the
extended Lunar New Year holiday, according to Caixin Global. The
supplier of traditional Chinese medicines said in a statement Feb.
2, 2021, that it couldn't make principal and interest payments and
on CNY2.4 billion (US$340 million) of bonds because of tight
liquidity. The bonds were issued in 2015 and due in 2022, but the
issuer had an option to raise the coupon rate and investors had an
option to sell back the bonds at the end of the fifth year.
KELLER WILLIAMS: Court Tosses Bid to Certify Class as Moot
----------------------------------------------------------
In the class action lawsuit captioned as St John, et al., v. Keller
Williams Realty, Inc., Case No. 6:19-cv-01347 (M.D. Fla.), the Hon.
Judge Paul G. Byron entered an endorsed order denying as moot
motion to certify class because an unredacted version of the Motion
was filed.
The nature of suit states statutory actions involving restrictions
on use of telephone equipment.
Keller Williams is an American technology and international real
estate franchise with headquarters in Austin, Texas. It claimed to
be the largest real estate franchise in number of agents and sales
volume for 2018 and 2019.[CC]
KELLER WILLIAMS: St. John Seeks to Certify Class
------------------------------------------------
In the class action lawsuit captioned as DANNA ST JOHN AND LUIS
PENUELA, individually and on behalf of all others similarly
situated, v. KELLER WILLIAMS REALTY, INC., Case No.
6:19-cv-01347-PGB-DCI (M.D. Fla.), the Plaintiff Danna St. John
asks the Court to enter an order:
1. certifying a class of:
"All persons in the United States who from four years
prior to the filing of this action through class
certification (1) one or more KW realtors called on their
NDNCR registered residential number, (2) two or more times
total in a twelve month period starting at least 31 days
after the number was registered with the NDNCR, (3) using
a Vulcan7 dialer and/or a Mojo dialer, (4) resulting in a
call with a duration of greater than zero seconds and, (a)
if using the Vulcan7 dialer, a disposition of "Answer,"
"Contacted," "Good Number," "Just Hung Up," "Not
Interested," "Relisted," or "Voicemail," and/or, (b) if
using the Mojo dialer, a disposition of "Contact," "DNC
Contact," "DNC Number," "Drop Message," or "Left Message,"
and (5) for whom the lead source for the call is
identified as either Vulcan7, Mojo, Landvoice, RedX, Data
Concierge Services, or Cole Realty;"
2. appointing her as class representative and Kaufman P.A.
and Law Offices of Stefan Coleman, P.A. as class counsel;
and
3. establishing a deadline for submitting a proposed notice
plan.
This case is similar to another Telephone Consumer Protection Act
case against a different national real estate brokerage in which
this Court recently certified a class based on calls made by the
brokerage's affiliated realtors using no-consent leads and dialers
purchased from companies Vulcan7, Mojo, and Landvoice.
The same outcome is warranted here for essentially the same
reasons. Keller Williams's realtors purchased no-consent leads of
potential property sellers or buyers from the same companies as in
the other case (Vulcan7, Mojo, and Landvoice), and a few other
similar companies selling the same types of leads generated in the
same manner (RedX, Data Concierge Services, and Cole Realty), and
called them with Vulcan7 and Mojo dialers regardless of whether the
phone numbers were registered with the National Do Not Call
Registry ("NDNCR").
Neither KW, KW's realtors, nor the companies that sold the leads
had consent of any kind from, or a relationship with, any of the
consumers whose leads were sold. To the contrary, without
consumers' knowledge, the lead sellers generated the leads
by aggregating public records data (including names, addresses, and
telephone numbers) linked to properties that (1) were listed on the
Multiple Listing Services and were removed from the MLS without a
sale ("expireds"); (2) were listed for sale by owner ("FSBOs");
and/or (3) were within a certain zip code or radius of another
specific property such as one that recently listed or sold ("circle
prospecting").
KW is a "real estate franchise company" "focused on training,
coaching, and technology."
A copy of the Plaintiff's motion to certify class dated May 6, 2022
is available from PacerMonitor.com at https://bit.ly/3wzjsdx at no
extra charge.[CC]
The Plaintiff is represented by:
Avi R. Kaufman, Esq.
Rachel E. Kaufman, Esq.
KAUFMAN P.A.
237 S Dixie Hwy, 4 th Flr
Coral Gables, FL 33133
Telephone: (305) 469-5881
E-mail: kaufman@kaufmanpa.com
rachel@kaufmanpa.com
- and -
Stefan Coleman, Esq.
LAW OFFICES OF STEFAN COLEMAN, P.A.
201 S. Biscayne Blvd, 28th Floor
Miami, FL 33131
Telephone: (877) 333-9427
Facsimile: (888) 498-8946
E-mail: law@stefancoleman.com
KOTOBUKI RESTAURANT: Yu, et al., Seek to Certify Class Action
-------------------------------------------------------------
In the class action lawsuit captioned as SHENG WEI YU, KENICHI
MURAKI, WEI JIE YU, and AIMEE LACADEN, on behalf of themselves and
others similarly situated in the Potential Rule 23 Class, v.
KOTOBUKI RESTAURANT, INC. d/b/a Kotobuki d/b/a Kotobuki-Hauppauge,
KOTOBUKI ROSLYN, INC. d/b/a Kotobuki d/b/a Kotobuki-Roslyn,
KOTOBUKI BABYLON, INC. d/b/a Kotobuki d/b/a Kotobuki-Babylon,
KOTOBUKI MANHATTAN, INC. d/b/a Kotobuki d/b/a Kotobuki-Manhattan,
KOTOBUKI MANAGEMENT, INC. d/b/a Kotobuki, ERIC KIM; and YOSHIHIRO
NARITA, Case No. 2:17-cv-04202-JMA-JMW (E.D.N.Y.), the Plaintiffs
ask the Court to enter an order:
1. certifying the action as a class action pursuant to Rule
23 of the Federal Rules of Civil Procedure;
2. appointing them as class representatives;
3. appointing Troy Law, PLLC and its attorneys John Troy,
Aaron B. Schweitzer, and Tiffany Troy as class counsel;
4. permitting Plaintiffs to circulate a notice of class
action by direct mail to class members and by publication;
and
5. granting such other and further relief as the Court shall
deem just and proper.
Kotobuki is in the Japanese Restaurant business.
A copy of the Plaintiff's motion to certify class dated May 6, 2022
is available from PacerMonitor.com at https://bit.ly/3lAsTTI at no
extra charge.[CC]
The Plaintiffs are represented by:
John Troy, Esq.
TROY LAW, PLLC
41-25 Kissena Boulevard, Suite 103
Flushing, NY 11355
Telephone: (718) 762-1324
E-mail: troylaw@troypllc.com
LINEAGE CELL: To Settle Ross Securities Suit
--------------------------------------------
Lineage Cell Therapeutics, Inc. disclosed in its Form 10-Q Report
for the quarterly period ended March 31, 2022, filed with the
Securities and Exchange Commission on May 12, 2022, that it will be
settling a putative class action lawsuit filed in October 2019,
challenging Lineage's acquisition of Asterias Biotherapeutics,
Inc.
This action is captioned "Ross v. Lineage Cell Therapeutics, Inc.,
et al.," C.A. No. 2019-0822 was filed in Delaware Chancery Court
and names Lineage, the Asterias board of directors, one member of
Lineage’s board of directors, and certain stockholders of both
Lineage and Asterias as defendants. The action was brought by a
purported stockholder of Asterias, on behalf of a putative class of
Asterias stockholders, and asserts breach of fiduciary duty and
aiding and abetting claims under Delaware law. The complaint
alleges, among other things, that the process leading up to the
Asterias merger was conflicted, that the consideration was
inadequate, and that the proxy statement filed by Asterias with the
SEC omitted certain material information, which allegedly rendered
the information disclosed materially misleading. The complaint
seeks, among other things, that a class be certified, the recovery
of monetary damages, and attorneys' fees and costs.
In December 2019, the defendants moved to dismiss the complaint. In
June 2020, a hearing on the motions to dismiss occurred. In
September 2020, the Chancery Court denied the motion to dismiss as
to Lineage and certain members of the Asterias board of directors,
and it granted the motion to dismiss as to all other defendants. In
October 2020, the remaining defendants filed an answer to the
complaint. The parties are currently engaged in discovery. A
five-day trial before the Chancery Court is currently scheduled for
October 17-21, 2022.
In April 2022, the parties reached an agreement in principle to
settle this litigation, which would result in payment to the
putative class of approximately $10.7 million and dismissal of the
lawsuit with prejudice and without any admission of liability or
fault by defendants. Of such amount, Lineage expects to contribute
approximately $3.5 million, with the balance to be paid by
insurance. The proposed settlement is subject to the negotiation
and execution of a settlement agreement and court approval thereof.
Although the parties have reached an agreement in principle to
settle, there is no assurance that a final settlement will be
achieved and approved by the court.
Lineage Cell Therapeutics, Inc. is a clinical-stage biotechnology
company into the design, development and manufacture of specialized
human cells with anatomical and physiological functions similar or
identical to cells found naturally in the human body.
MARRIOTT INTERNATIONAL: Bid to Amend Class Cert Deadlines OK'd
--------------------------------------------------------------
In the class action lawsuit captioned as Hall v. Marriott
International, Inc., Case No. 3:19-cv-01715 (S.D. Cal.), the Hon.
Judge Jinsook Ohta entered an order granting joint motion to amend
the deadlines for the parties to file oppositions and replies to
motions for summary judgment and class certification.
-- The Plaintiffs' opposition to July 8, 2022
Defendant's motion for summary
judgment is due by:
-- The Defendant's opposition to July 15, 2022
Plaintiffs' motion for partial
summary judgment is due by:
-- The Defendant's opposition to July 15, 2022
class certification is due by:
-- The Defendant's reply in support July 29, 2022
of its motion for summary judgment
is due by:
-- The Plaintiffs' reply in support August 5, 2022
of its motion for partial summary
judgment is due by:
-- The Plaintiffs' reply in support August 5, 2022
of class certification is due by:
-- The hearing dates on the motions
for summary judgment and class
certification are rescheduled from
The nature of suit states Torts -- Personal Property -- Other
Fraud.
Marriott International, Inc. is an American multinational company
that operates, franchises, and licenses lodging including hotel,
residential, and timeshare properties. It is headquartered in
Bethesda, Maryland. The company was founded by J. Willard Marriott
and his wife Alice Marriott.
A copy of the Court's order dated May 12, 2022 is available from
PacerMonitor.com at at no extra charge.[CC]
MARUGAME UDON: Filing of Class Status Bid Extended to Dec. 6
------------------------------------------------------------
In the class action lawsuit captioned as CRYSTAL REDICK,
individually and on behalf of all others similarly situated, v.
MARUGAME UDON USA, LLC, a Delaware Limited Liability Company and
DOES 1 to 10, inclusive, Case No. 2:22-cv-00794-RGK-KS (C.D. Cal.),
the Court entered an order granting joint stipulation to allow
plaintiff an extension to file a motion for class certification as
follows:
1. The current deadline for Plaintiff to file a Motion for
Class Certification is vacated.
2. The new deadline for Plaintiff to file a Motion for Class
Certification is December 6, 2022.
Marugame Udon is a cafeteria-style restaurant serving Japanese Udon
noodles.
A copy of the Court's order dated May 6, 2022 is available from
PacerMonitor.com at https://bit.ly/3MA5NbE at no extra charge.[CC]
MARUGAME UDON: Redick ADA Suit Seeks Class Certification
--------------------------------------------------------
In the class action lawsuit captioned as CRYSTAL REDICK,
individually and on behalf of all others similarly situated, v.
MARUGAME UDON USA, LLC, a Delaware Limited Liabiity Company; and
DOES 1 to 10, inclusive, Case No. 2:22-cv-00794-RGK-KS (C.D. Cal.),
the Plaintiff asks the Court to enter an order granting class
certification on the grounds that all the prerequisites of Fed. R.
Civ. P. 23, including both Rule 23(b)(2) and Rule 23(b)(3) have
been satisfied:
The Plaintiff seeks to certify a nationwide class comprised of:
"all legally blind individuals who have attempted to access
the Defendant's website by the use of a screen reading
software during the applicable limitations period up to and
including final judgment in this action."
The Defendant provides hand crafted udon bowls, tempura, and
beverages from a plethora of restaurant locations in states such as
Calirofrnia, Texas, and Hawaii. The Defendant created and knowingly
operates www.marugameudon.com (the "Website") in violation of the
Plaintiff's civil rights under the Americans with Disabilities Act
("ADA") and the Unruh Civil Rights Act 10 ("Unruh Act").
The Plaintiff represents a class of similarly situated, visually
impaired individuals who tried to access Defendant's Website, using
screen-reader software, but could not. Thus, Plaintiff and the
Class Members were denied accesss to the goods and services of
Defendant's restaurants, places of public accomodation.
The Plaintiff is a legally blind person who uses screen-reading
software to experience the internet. The Plaintiff and visually
impaired persons use screen-reading software to browse and shop on
the internet.
Screen-reading software reads aloud both textual and visual
elements on websites. This popular and readily available software
enables visually impaired persons to navigate the Website through
auditory cues. It is widely used by millions of Americans
nationwide. The Plaintiff first attempted to access the Website on
October 19, 2021.
The Plaintiff contends that her experience was not unique. Readily
obtainable public statistics demonstrate the numbers of persons
impacted by the Defendant's failure to make its Website accessible.
The Defendant owes a duty to visually impaired consumers to ensure
its Website is ADA compliant because a sufficient nexus exists
between its Website and corresponding restaurants.
The Defendant is a well-known and sophisticated American company
that sells and delivers Japanese noodles and tempura, including but
not limited to udon noodles, rice bowls, tempura, soups, sides and
beverages, in convenient locations, using discounts, gift cards,
delivery and other sales strategies.
A copy of the Plaintiff's motion to certify class dated May 9, 2022
is available from PacerMonitor.com at https://bit.ly/3Px9Wz7 at no
extra charge.[CC]
The Plaintiff is represented by:
Thiago M. Coelho, Esq.
Binyamin I. Manoucheri, Esq.
E-mail: thiago@wilshirelawfirm.com
binyamin@wilshirelawfirm.com
WILSHIRE LAW FIRM, PLC
3055 Wilshire Blvd., 12th Floor
Los Angeles, CA 90010
Telephone: (213) 381-9988
Facsimile: (213) 381-9989
MDL 2951: Arbitration & Dismissal Bid in Stubhub Refund Suit Denied
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In the case, IN RE: STUBHUB REFUND LITIGATION. This Document
Relates to All Cases, Case No. 20-md-02951-HSG (N.D. Cal.), Judge
Haywood S. Gilliam, Jr., of the U.S. District Court for the
Northern District of California denies Defendant StubHub's renewed
motion to compel arbitration and motion to dismiss.
I. Background
The putative nationwide class action concerns StubHub's refund
policy for events affected by the COVID-19 pandemic. The Plaintiffs
allege that StubHub wrongfully changed its policies for refunds for
cancelled or rescheduled events as a result of COVID-19.
In November 2021, the Court granted in part and denied in part
StubHub's first motion to compel arbitration. In the order, the
Court granted the motion as to the named Plaintiffs who purchased
tickets on the StubHub website. It reasoned that the checkout
process on the website put the Plaintiffs on constructive notice of
the arbitration agreement. However, the Court found that StubHub
had failed to meet its burden to establish that the eight
Plaintiffs who purchased their tickets on the mobile application
had entered into an agreement to arbitrate. StubHub did not provide
sufficient information that the "sign in" and "checkout" processes
on the mobile application contained an adequate disclosure of any
arbitration agreement.
The Court also rejected StubHub's argument that the Plaintiffs
agreed to an arbitration provision in the User Agreement when they
registered for a StubHub account because StubHub did not provide
information about (1) whether the Plaintiffs registered through the
website or mobile application; (2) what the sign-up screen on the
mobile application looked like at the time these Plaintiffs signed
up; and (3) what version of the User Agreement was in place at the
time each Plaintiff registered.
StubHub has renewed its motion to compel arbitration, arguing that
the Court should also compel arbitration as to the eight remaining
Plaintiffs who purchased their tickets using the mobile
application. In the same motion, and to the extent any claims
remain before this Court, StubHub moves to dismiss the majority of
the Plaintiffs' causes of action as deficiently pled under Federal
Rule of Civil Procedure 12(b)(6).
II. Discussion
A. Motion to Compel
In support of its renewed motion to compel arbitration, StubHub
contends that the eight named Plaintiffs who purchased their
tickets through StubHub's mobile application -- like the other
Plaintiffs -- agreed to StubHub's User Agreement, which contained
an arbitration provision. StubHub thus urges that their claims
should also be compelled to arbitration.
StubHub does not offer evidence that these Plaintiffs assented to
the arbitration agreement at the time they purchased tickets on the
mobile application. Rather, it argues that they assented to the
arbitration agreement when they visited the StubHub website at
various points before and after they purchased their tickets on the
mobile application. As before, Judge Gilliam finds StubHub's
evidence deficient.
First, StubHub suggests that some Plaintiffs agreed to the User
Agreement after they purchased their tickets. It argues that
Plaintiff Mignault signed in to his online account five days after
his purchase, and should have known that doing so would subject his
earlier ticket purchase to the terms of the User Agreement. StubHub
has simply failed to provide any authority to support this
argument.
Second, StubHub suggests that some Plaintiffs agreed to the User
Agreement days or months before they purchased their tickets on the
mobile application. Although the Plaintiffs may have signed into
their accounts and been on notice that they were subject to a User
Agreement at that time, StubHub fails to explain why Plaintiffs
would be on notice that they were bound by the User Agreement for
all future purchases. At the time they signed into their accounts
on the website, they were not purchasing tickets. StubHub appears
to concede that they did so later on the mobile application, which
did not contain any disclosure of the User Agreement. StubHub does
not address this issue directly.
At this point, Judge Gilliam holds that StubHub has had several
opportunities to provide sufficient evidence that the eight
Plaintiffs who purchased their tickets on the mobile application
had notice of the arbitration provision in the User Agreement. But
again, it has failed to do so. Judge Giliam therefore denies the
motion to compel arbitration. The claims brought by Plaintiffs
Dahl, Glaspey, Koble, Matlock, McDaniel, Mignault, Williams, and
Wutz therefore remain before the Court.
B. Motion to Dismiss
As an initial matter, the Plaintiffs challenge StubHub's attempt to
file an "amended" version of its renewed motion to compel
arbitration without first seeking leave from the Court. It first
filed its renewed motion to compel on January 24. Four days later,
on January 28, StubHub amended the motion. StubHub suggests that it
did so simply to "clarify" the scope of its motion. To that end,
StubHub added a footnote in its amended motion stating: "All
challenges to the sufficiency of the pleading of the California
statutory claims in this Motion apply equally to all named
Plaintiffs in the case." In short, StubHub has filed a motion to
dismiss all causes of action in the case approximately a year after
the Plaintiffs filed their consolidated amended complaint.
Judge Gilliam only considers arguments as to the eight named
Plaintiffs who purchased their tickets through the mobile
application. The parties are cautioned that the Court expects --
and will continue to enforce -- strict compliance with all its
orders, the Federal Rules of Civil Procedure, and the Local Rules.
Judge Gilliam further notes his dismay that years after the case
was filed, it remains mired in litigation regarding the pleadings.
StubHub could have -- and should have -- raised the arguments about
the sufficiency of the complaint much earlier. The motion to compel
did not automatically extend or stay the time for StubHub to file a
responsive pleading.
A. Standing
StubHub first argues that Plaintiffs Koble and Wutz lack standing
to sue StubHub because they have not alleged an injury. Judge
Gilliam finds that StubHub has not provided sufficient evidence
that Plaintiff Koble actually saw -- let alone agreed to -- the
User Agreement at the time he purchased his tickets. Even if he
had, StubHub appears to misapprehend the Plaintiffs' theory of
liability. Judge Gilliam denies the motion on this basis.
StubHub also argues that all eight Plaintiffs lack statutory
standing to bring their California statutory causes of action
because they did not plead actual reliance on any misrepresentation
about the FanProtect Guarantee. However, the Plaintiffs allege that
they relied on and were misled by StubHub's prior representations
-- and actual policy -- that they would receive a cash refund for
canceled events. Hence, when read in their totality, such
allegations are sufficient under the circumstances, and Judge
Gilliam denies the motion on this basis.
B. CLRA
Next, StubHub argues that the Plaintiffs fail to state a CLRA cause
of action because there are no allegations that StubHub knew, or
had reason to know, that its statements about the FanProtect
Guarantee were false at the time the Plaintiffs purchased their
tickets.
Judge Gilliam finds that with the exception of Plaintiff Koble, the
Plaintiffs do not allege that StubHub knew that it would change its
refund policy as a result of the COVID-19 pandemic at the time they
purchased their tickets. StubHub's ability to unilaterally change
the terms of any refund undermines the idea that the FanProtect
Guarantee actually "guaranteed" or promised users any protection
for their ticket purchases. Although relatively thin, Judge Gilliam
finds this theory sufficient to survive the motion to dismiss, and
denies the motion on this basis.
C. Negligent Misrepresentation
StubHub argues that the Plaintiffs' negligent misrepresentation
claims similarly fail because the Plaintiffs did not allege (1) any
misrepresentations at the time the Plaintiffs purchased their
tickets; or (2) that the Plaintiffs relied on any such statement(s)
when they purchased their tickets. Because the Court already
rejected these arguments above, Judge Gilliam denies the motion on
this basis as well.
D. Non-California Statutory Claims
Lastly, StubHub argues that the Court should dismiss the
Plaintiffs' non-California statutory claims because they have
agreed that California law should apply. The Plaintiffs respond
that they have simply pled these claims in the alternative to the
California claims. Judge Gilliam agrees that it need not decide any
choice of law issues at this stage, and therefore denies the motion
on this basis.
III. Conclusion
Accordingly, Judge Gilliam denies the motion. The case schedule
remains in place, and the Court expects the parties to work
together efficiently and cooperatively to move the case forward.
A full-text copy of the Court's May 13, 2022 Order is available at
https://tinyurl.com/bdde6nvk from Leagle.com.
MHC HERITAGE: Noel, et al., Seek Rule 23 Class Certification
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In the class action lawsuit captioned as MICHAEL NOEL, KATHLEEN
WIKSTEN, and CLAIRE LADOUCEUR, on behalf of themselves and all
others similarly situated, v. MHC HERITAGE PLANTATION, LLC, MHC
OPERATING LIMITED PARTNERSHIP, MHC PROPERTY MANAGEMENT, L.P., MHC
PROPERTY MANAGEMENT GP, L.L.C. and EQUITY LIFESTYLE PROPERTIES,
INC. f/k/a MANUFACTURED HOME COMMUNITIES, INC., Case No.
2:21-cv-14492-DMM (S.D. Fla.), the Plaintiffs Michael Noel,
Kathleen Wiksten, and Claire Ladouceur ask the Court to enter an
order seek certifying a class pursuant to Rule 23 of the Federal
Rules of Civil Procedure:
"All persons who leased a lot in the Heritage Plantation
mobile home park since October 6, 2003."
The Defendants, the owners and operators of Heritage Plantation
Mobile Home Park in Vero Beach, Florida since at least 2003, owe
duties pursuant to statute, contract and at common law to provide
essential services in the Park, such as paved streets, sewer lines,
water lines, and an adequate stormwater drainage system.
The Plaintiffs and the Class members own mobile homes and lease
lots from Defendants in the Park where their mobile homes sit.
The Plaintiffs allege that Defendants have breached their duties to
the Class by, among other things, failing to have an adequate
stormwater drainage system to serve the Park. The current
antiquated system creates severe flooding throughout the Park
during ordinary rainfall. The flooding and constant wet ground in
the Park significantly affect both common areas and personal
property. Despite their knowledge, Defendants have failed to
adequately replace or repair the stormwater drainage system to
prevent flooding. These facts raise questions common to all
Plaintiffs and Class members, i.e. whether Defendants failed to
adequately maintain and repair the stormwater drainage system and
whether the inadequacies and disrepair of the stormwater drainage
system are the cause of the flooding in the Park, making this case
ideal for class treatment.
The Defendants "are a fully integrated owner of lifestyle-oriented
properties consisting of property operations and home sales and
rental operations primarily within manufactured home (MH)
communities."
A copy of the Plaintiff's motion to certify class dated May 6, 2022
is available from PacerMonitor.com at https://bit.ly/39JCTr0 at no
extra charge.[CC]
The Plaintiffs are represented by:
Robert C. Gilbert, Esq.
Daniel E. Tropin, Esq.
KOPELOWITZ OSTROW FERGUSON
WEISELBERG GILBERT
2800 Ponce de Leon Blvd., Ste. 1100
Coral Gables, FL 33134
Telephone: (305) 384-7269
E-mail: gilbert@kolawyers.com
tropin@kolawyers.com
- and -
Elizabeth A. Fegan, Esq.
Lynn A. Ellenberger, Esq.
FEGAN SCOTT LLC
150 S. Wacker Dr., 24th Floor
Chicago, IL 60606
Telephone: (312) 741-1019
E-mail: beth@feganscott.com
lynn@feganscott.com
MOMENTUS INC: Faces Depoy Securities Suit in California Court
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Momentus Inc. disclosed in its Form 10-Q Report for the quarterly
period ended March 31, 2022, filed with the Securities and Exchange
Commission on May 11, 2022, that Stable Road Acquisition Corp
(SRAC) a subsidiary of the company since its merger in August 12,
2021, is facing a purported stockholder putative class action
complaint against it, Brian Kabot (CEO), James Norris (CFO),
Momentus and the company's co-founder and former CEO, Mikhail
Kokorich.
Said action was filed in the United States District Court for the
Central District of California in July 22, 2021 in a case captioned
"Depoy v. Stable Road Acquisition Corp., et al." Case No.
2:21-cv-06287. The complaint alleges that the defendants omitted
certain material information in their public statements and
disclosures regarding the above mentioned merger, in violation of
the securities laws, and seeks damages on behalf of a putative
class of stockholders who purchased SRAC stock between October 7,
2020 and July 13, 2021.
Momentus Inc. is a U.S. commercial space company that offers
in-space infrastructure services, including in-space
transportation, hosted payloads and in-orbit services.
MOMENTUS INC: Faces Haenisch Securities Suit in California Court
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Momentus Inc. disclosed in its Form 10-Q Report for the quarterly
period ended March 31, 2022, filed with the Securities and Exchange
Commission on May 11, 2022, that Stable Road Acquisition Corp
(SRAC) a subsidiary of the company since its merger in August 12,
2021, is facing a purported stockholder putative class action
complaint against it, Brian Kabot (CEO), James Norris (CFO),
Momentus and the company's co-founder and former CEO, Mikhail
Kokorich.
In November 12, 2021, plaintiff Hartmut Haenisch filed an Amended
Consolidated Class Action Complaint alleging that the defendants
omitted certain material information in their public statements and
disclosures regarding the above mentioned merger, in violation of
the securities laws, and seeks damages on behalf of a putative
class of stockholders who purchased SRAC stock between October 7,
2020 and July 13, 2021.
In February 14, 2022, Momentus filed a motion to dismiss the
Amended Complaint.
Momentus Inc. is a U.S. commercial space company that offers
in-space infrastructure services, including in-space
transportation, hosted payloads and in-orbit services.
MOMENTUS INC: Faces Hall Securities Suit in California
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Momentus Inc. disclosed in its Form 10-Q Report for the quarterly
period ended March 31, 2022, filed with the Securities and Exchange
Commission on May 11, 2022, that Stable Road Acquisition Corp
(SRAC) a subsidiary of the company since its merger in August 12,
2021, is facing a purported stockholder putative class action
complaint against it, Brian Kabot (CEO), James Norris (CFO),
Momentus and the company's co-founder and former CEO, Mikhail
Kokorich.
Said action was filed in the United States District Court for the
Central District of California in July 22, 2021 in a case captioned
"Hall v. Stable Road Acquisition Corp., et al." Case No.
2:21-cv-05943. The complaint alleges that the defendants omitted
certain material information in their public statements and
disclosures regarding the above mentioned merger, in violation of
the securities laws, and seeks damages on behalf of a putative
class of stockholders who purchased SRAC stock between October 7,
2020 and July 13, 2021.
Momentus Inc. is a U.S. commercial space company that offers
in-space infrastructure services, including in-space
transportation, hosted payloads and in-orbit services.
MOMENTUS INC: Faces Jensen Securities Suit in California Court
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Momentus Inc. disclosed in its Form 10-Q Report for the quarterly
period ended March 31, 2022, filed with the Securities and Exchange
Commission on May 11, 2022, that Stable Road Acquisition Corp
(SRAC) a subsidiary of the company since its merger in August 12,
2021, is facing a purported stockholder putative class action
complaint against it, Brian Kabot (CEO), James Norris (CFO),
Momentus and the company's co-founder and former CEO, Mikhail
Kokorich.
Said action was filed in the United States District Court for the
Central District of California in July 15, 2021 in a case captioned
"Jensen v. Stable Road Acquisition Corp., et al.," Case No.
2:21-cv-05744. The complaint alleges that the defendants omitted
certain material information in their public statements and
disclosures regarding the above mentioned merger, in violation of
the securities laws, and seeks damages on behalf of a putative
class of stockholders who purchased SRAC stock between October 7,
2020 and July 13, 2021.
Momentus Inc. is a U.S. commercial space company that offers
in-space infrastructure services, including in-space
transportation, hosted payloads and in-orbit services.
NATIONAL ASSOCIATION: Appeals Class Cert. Ruling in Sitzer Suit
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The National Association of Realtors, et al., appeal from a court
ruling granting class certification in the lawsuit entitled JOSHUA
SITZER AND AMY WINGER, SCOTT AND RHONDA BURNETT, and RYAN
HENDRICKSON, on behalf of themselves and all others similarly
situated, Plaintiffs, v. THE NATIONAL ASSOCIATION OF REALTORS,
REALOGY HOLDINGS CORP., HOMESERVICES OF AMERICA, INC., BHH
AFFILIATES, LLC, HSF AFFILIATES, LLC, RE/MAX LLC, and KELLER
WILLIAMS REALTY, INC. Defendants, Case No. 4:19-cv-00332-SRB, in
the U.S. District Court for the Western District of Missouri,
Western Division.
Plaintiffs Joshua Sitzer and Amy Winger brought this action, on
behalf of themselves and on behalf of the Plaintiff classes,
consisting of all persons and entities who listed properties on one
of four Multiple Listing Services and paid a broker commission from
at least April 29, 2015 until the Present. The Defendants are the
National Association of Realtors and the four largest national real
estate broker franchisors: Realogy Holdings Corp.; HomeServices of
America, Inc.; RE/MAX Holdings, Inc.; and Keller Williams Realty,
Inc., each of which has a significant presence in the Kansas City
metropolitan area and the other areas identified in this complaint.
Together, the Defendants have conspired to require home sellers to
pay the broker representing the buyer of their homes, and to pay an
inflated amount, in violation of federal antitrust law and the
Missouri Merchandising Practices Act, says the complaint.
The Plaintiffs seek treble damages, injunctive relief, and the
costs of this lawsuit, including reasonable attorneys' fees, and
demand a trial by jury.
On May 24, 2021, the Plaintiffs filed Motion for Class
Certification which the Court granted on April 22, 2022, through an
Order entered by District Judge Stephen R. Bough.
The Defendants seek a review of the Court's order granting class
certification.
The questions presented are: 1) May a district court accept an
expert's purported "common" method for proving antitrust injury
without resolving challenges to the adequacy of that method to show
predominance under Federal Rule of Civil Procedure 23? 2) May a
district court find an expert opinion sufficient to show
predominance under Rule 23 on the basis of a bare conclusion,
without explanation, that the opinion is admissible under Daubert
v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993)?
The appellate case is captioned as Scott Burnett, et al. v.
National Association of Realtors, et al., Case No. 22-8009, in the
United States Court of Appeals for the Eighth Circuit, filed on May
6, 2022.[BN]
Defendants-Petitioners National Association of Realtors, et al.,
are represented by:
Jack R. Bierig, Esq.
ARENTFOX SCHIFF LLP
233 S. Wacker Dr., Suite 7100
Chicago, IL 60606
Telephone: (312) 258-5500
E-mail: jack. bierig@afslaw.com
- and -
Robert J. Wierenga, Esq.
Suzanne L. Wahl, Esq.
ARENTFOX SCHIFF LLP
350 S. Main Street, Suite 210
Ann Arbor, MI 48104
Telephone: (734) 222-1500
E-mail: robert.wierenga@afslaw.com
suzanne.wahl@afslaw.com
- and -
Ethan Glass, Esq.
COOLEY LLP
1299 Pennsylvania Avenue, Suite 700
Washington, DC 20004
Telephone: (202) 776-2244
E-mail: eglass@cooley.com
- and -
Charles W. Hatfield, Esq.
Alexander Barrett, Esq.
STINSON LLP
230 W. McCarty Street
Jefferson City, MO 65101
Telephone: (573) 636-6827
E-mail: chuck.hatfield@stinson.com
alexander.barrett@stinson.com
NEONODE INC: Shareholder Suit in Delaware Dismissed w/ Prejudice
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Neonode Inc. disclosed in its Form 10-Q Report for the quarterly
period ended March 31, 2022, filed with the Securities and Exchange
Commission on May 11, 2022, that in November 4, 2021 a purported
class action lawsuit (Case No. 1:20-cv-01174-UNA) filed in the
United States District Court for the District of Delaware against
the company was dismissed with prejudice.
On September 2, 2020, a putative stockholder of Neonode filed said
action against Neonode, the Board of Directors of Neonode, and the
Chief Executive Officer of Neonode for alleged violations of
Sections 14(a) and 20(a) of the Securities Exchange Act of 1934, as
amended, in connection with disclosure of information concerning
Proposal 5 and Proposal 6 in the proxy statement filed with the SEC
by Neonode on August 20, 2020 for the 2020 Annual Meeting of
Stockholders of Neonode. These proposals for shareholder approval
related to the Private Placement by Neonode on August 5, 2020 in
which two directors and the chief executive officer of Neonode
participated.
The relief sought by the plaintiff included a preliminary
injunction to enjoin the stockholder votes on Proposal 5 and
Proposal 6. On October 20, 2020, the plaintiff voluntarily
dismissed the lawsuit in the United States District Court. However,
on February 11, 2021, the plaintiff's counsel informed Neonode that
they would file a fee petition as a result of Neonode filing the
definitive additional materials to the Proxy Statement on September
18, 2020.
In September 9, 2021, the plaintiff's counsel filed a complaint in
the Supreme Court of the State of New York, County of Nassau, to
recover plaintiff's attorneys' fees and expenses in the amount of
$400,000 incurred in connection with the Proceeding.
In November 3, 2021, the company entered into a settlement
agreement with plaintiff's counsel, which was accrued for as of
September 30, 2021. On November 4, 2021, the case was dismissed
with prejudice.
Neonode Inc. develops advanced optical sensing solutions for
contactless touch, touch, gesture sensing, and scene analysis
solutions using advanced machine learning algorithms to detect and
track persons and objects in video streams for cameras and other
types of imagers.
NEUBASE THERAPEUTICS: Shareholder Suit in NY Court Dismissed
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Neubase Therapeutics, Inc. disclosed in its Form 10-Q Report for
the quarterly period ended March 31, 2022, filed with the
Securities and Exchange Commission on May 12, 2022, that a class
action lawsuit filed in the Southern District of New York, against
Ohr Pharmaceutical, Inc. has been dismissed in December 16, 2021.
On February 14, 2018, plaintiff Jeevesh Khanna, commenced an action
in the Southern District of New York, against Ohr Pharmaceutical,
Inc., which entered into a merger agreement with NeuBase
Therapeutics, Inc. on January 2, 2019 and which merger closed on
July 12, 2019, and several of its current and former officers and
directors, alleging that they violated federal securities laws
between June 24, 2014 and January 4, 2018.
On August 7, 2018, the lead plaintiffs, now George Lehman and
Insured Benefit Plans, Inc. filed an amended complaint, alleging a
putative class period of April 8, 2014 through January 4, 2018.
They seek to maintain the action as a class action and to recover
damages on behalf of themselves and other persons who purchased or
otherwise acquired Ohr common stock during the putative class
period and purportedly suffered financial harm as a result. Ohr and
the individuals dispute these claims and are defending the matter
vigorously.
On September 17, 2018, Ohr filed a motion to dismiss the complaint.
On September 20, 2019, the district court issued an opinion and
order granting the motion to dismiss. On October 23, 2019, the
plaintiffs filed a notice of appeal of that order dismissing the
action. After full briefing and oral argument, on October 9, 2020,
the U.S. Court of Appeals for the Second Circuit issued a summary
order affirming the district court's order granting the motion to
dismiss and remanding the action to the district court to make a
determination on the record related to plaintiffs' request for
leave to file an amended complaint. On remand, the district court
denied plaintiffs' subsequent request to amend and dismissed with
prejudice plaintiffs' claims.
On December 16, 2020, plaintiffs filed a notice of appeal of that
order denying plaintiffs leave to amend. On December 16, 2021, the
Second Circuit affirmed the decision and order of the district
court denying plaintiffs' motion for leave to amend, thereby
dismissing the appeal and action in its entirety. Plaintiffs have
neither sought reconsideration of the Second Circuit's decision nor
filed a writ of certiorari for review by the Supreme Court. This
matter is now considered closed.
NeuBase Therapeutics, Inc. and subsidiaries design, build, and
validate a new technology platform to address the three
disease-causing mechanisms, without the limitations of early
precision genetic medicine.
NEW ORIENTAL: Bernstein Named Lead Counsel in Securities Class Suit
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In the cases, BRICKLAYERS' & ALLIED CRAFTWORKERS LOCAL #2 ALBANY,
NY PENSION FUND, Plaintiff v. NEW ORIENTAL EDUCATION & TECHNOLOGY
GROUP INC., MICHAEL MIHONG YU, ZHIHUI YANG, CHENGGANG ZHOU,
Defendants. ANDRES MIJARES-ORTEGA, Plaintiff, v. NEW ORIENTAL
EDUCATION & TECHNOLOGY GROUP INC., MICHAEL MIHONG YU, ZHIHUI YANG,
CHENGGANG ZHOU, Defendants, Case Nos. 22 Civ. 1014 (VM), 22 Civ.
1876 (VM) (S.D.N.Y.), Judge Victor Marrero of the U.S. District
Court for the Southern District of New York appoints ACATIS
Investment Kapitalverwaltungsgesellschaft mpH as the Lead Plaintiff
and appoints Bernstein Litowitz Berger & Grossmann LLP as the Lead
Counsel.
I. Introduction
Before the Court are pending motions from (1) Pavers & Road
Builders District Council Pension Fund; (2) Granite Point Capital 8
Dragons China Opportunities Fund, Granite Point Capital Master
Fund, Granite Point Capital Scorpion Focused Ideas Fund
(collectively, "Granite Point"); (3) Public Employees' Retirement
System of Mississippi ("Mississippi PERS"); (4) Potrero LLC and (5)
ACATIS; and (5) Neng Guo for the consolidation of cases and
approval of a lead plaintiff and lead counsel under the Private
Securities Litigation Reform Act ("PSLRA").
After all motions were filed, Potrero and Guo filed notices of
non-opposition to the competing motions for appointing lead
plaintiff, in recognition of the fact that they did not suffer the
greatest financial loss. Pavers & Road Builders filed a response
that did not expressly note its non-opposition but acknowledged
that it did not suffer the greatest financial loss. Granite Point,
Mississippi PERS, and ACATIS filed briefs opposing all other
parties' appointment as lead plaintiff.
II. Background
On Feb. 3, 2022, Plaintiff Bricklayers' and Allied Craftworkers
Local #2 Albany, NY Pension Fund filed this action on behalf of all
persons who purchased New Oriental American Depository Shares ("ADS
shares") between April 24, 2018 and July 22, 2021, alleging New
Oriental and certain senior officers violated the Securities Act of
1934.
On March 4, 2022, Andres Mijares-Ortega filed suit against the same
parties, on behalf of the same purported group of people, alleging
the same securities law violations over the same Class Period. New
Oriental is a Cayman Islands corporation, headquartered in Beijing,
China, whose ADS shares are traded on the New York Stock Exchange.
New Oriental provides private educational and tutoring services in
China, operating both online and in over 120 schools and 1,500
learning centers across the nation.
Several times throughout the Class Period, the Chinese government
implemented new regulations impacting the tutoring industry.
Acknowledging that these regulations were of material importance to
investors, in its filings with the Securities and Exchange
Commission ("SEC"), New Oriental continuously asserted its
compliance with government regulations. But despite these
reassurances, the Complaint alleges New Oriental "routinely engaged
in illicit business practices designed to artificially inflate the
Company's financial results." In short, it is alleged that New
Oriental made materially false and misleading statements and
omitted to share material information throughout the Class Period.
New Oriental continued to, allegedly, misrepresent its business
practices and downplay the severity of impending regulatory changes
despite numerous media reports that the Chinese government was
implementing harsher rules and regulations.
On June 1, 2021, the Chinese government announced it had fined
several tutoring companies, including New Oriental, for "illegal
activities such as false advertising and fraud." A month later,
China revealed its education overhaul, which included a new
prohibition on "companies that teach the school curriculum from
making profits, raising capital, or going public," essentially
banning for-profit tutoring. New Oriental's stock plummeted 70%
after this news release, and the value of its ADS shares had fallen
over 90 percent in five months.
Stemming from this course of events, the Complaints allege (1)
violations of Section 10(b) of the Securities Act and Rule 10b-5;
and (2) violations of Section 20(a) of the Securities Act.
III. Discussion
A. Consolidation
Section 78u-4(a)(3)(B)(ii) of Title 15 of the United States Code
requires the Court to decide any motions to consolidate one or more
securities actions prior to the appointment of a lead plaintiff.
Per Rule 42 of the Federal Rules of Civil Procedure, actions before
a federal court may be consolidated where they involve "a common
question of law or fact."
All parties in the matter agree that both related actions concern
common issues of both law and fact, as both cases allege New
Oriental and its officers violated the Securities Act and Rule
10b-5 by making materially false and misleading statements, as well
as omitting material facts, during the same period from April 24,
2018 through July 22, 2021. Thus, Judge Marrero finds consolidation
is appropriate and the motions to consolidate the cases is
granted.
B. Appointment of Lead Plaintiff
Because all potential lead plaintiffs timely filed their motions to
serve as lead plaintiff pursuant to 15 U.S.C. Section
78u-4(a)(3)(A), Judge Marrero focuses his discussion on the latter
two statutory factors for determining the most adequate lead
plaintiff: (1) which prospective lead plaintiff has the "largest
financial interest in the relief sought by the class" and (2)
whether that plaintiff "otherwise satisfies the requirements of
Rule 23 of the Federal Rules of Civil Procedure."
First, after consideration of all relevant factors and the parties'
submissions, he finds that ACATIS has the largest financial
interest in this dispute, meaning it is the presumptive lead
plaintiff so long as it satisfies the requirements of Rule 23. Per
the moving papers, ACATIS suffered the largest financial loss by a
significant margin -- $8,599,214 compared to Granite Point's
$3,464,461 loss and Mississippi PERS' $3,307,010. Similarly,
ACATIS, having spent over 10 million dollars, expended the most
funds during the Class Period. Granite Point purchased the largest
number of shares, but ACATIS had the greatest number of net shares,
meaning that three of the four Lax/Olsten factors weigh in favor of
finding ACATIS has the largest financial interest. Neither Granite
Point nor Mississippi PERS disputes that ACATIS has the greatest
financial interest in the matter.
Second, Judge Marrero holds that ACATIS has adequately established
the requirements of Rule 23 are satisfied, and because it also has
the largest financial interest in the matter, its motion for
appointment as lead plaintiff is granted. He finds that ACATIS has
made the preliminary showing of typicality by explaining that it
purchased New Oriental ADS shares during the Class Period, relied
on New Oriental's alleged misrepresentations, and suffered damages
as a result -- the same injury alleged by the other class members,
caused by the same conduct over the same time period. ACATIS
similarly demonstrated that it will serve as an adequate class
representative because it has a significant interest in the outcome
of the case, has not identified any interests antagonistic to other
class members, and has selected qualified, capable counsel.
C. Lead Counsel
ACATIS has selected Bernstein Litowitz as lead counsel. Bernstein
Litowitz has served as lead counsel in several PSLRA class actions
before courts in this District, and it has provided the Court with
an extensive firm resume detailing its qualifications and past
success in representing class interests and securing significant
recoveries for injured shareholders. Judge Marrero is persuaded
that Bernstein Litowitz can capably represent the class, given the
firm's experience in litigating class action lawsuits. Accordingly,
he approves of the ACATIS's selection of Bernstein Litowitz as its
choice of lead counsel.
IV. Order
For the reasons he stated, Judge Marrero grants the motion of
ACATIS for consolidation of cases 22 Civ. 1014 and 22 Civ. 1876,
and the Clerk of Court is respectfully ordered to consolidate the
cases.
He also grants the motion of ACATIS for appointment of lead
plaintiff for the proposed class in the action and its motion for
appointment of Bernstein Litowitz Berger & Grossmann LLP as lead
counsel for the class.
Judge Marrero denies all other motions for the appointment of lead
plaintiff or lead counsel.
A full-text copy of the Court's May 13, 2022 Decision & Order is
available at https://tinyurl.com/2p8n6m5m from Leagle.com.
NEW TSI: CMP, Scheduling Order Entered in Rose Class Action
------------------------------------------------------------
In the class action lawsuit captioned as Patrick Rose, v. New TSI
Holdings, Inc., Case No. 1:21-cv-05519-JPO (S.D.N.Y. ), the Hon.
Judge Paul Oetken entered a civil case management plan and
scheduling order as follows:
-- All fact discovery shall be completed Sept. 23, 2022
no later than:
-- Initial requests for production of June 13, 2022
documents shall be served by:
-- Interrogatories shall be served by: July 29, 2022
-- Depositions shall be completed by: August 31, 2022
-- Requests to admit shall be served by: August 23, 2022
-- All expert discovery, including Dec. 7, 2022
expert depositions, shall be
completed no later than:
-- The Plaintiff's expert disclosures October 24, 2022
pursuant to Fed. R. Civ. P. 26(a)(2)
shall be made on:
-- The Defendant's expert disclosures November 24, 2022
pursuant to Fed. R. Civ. P. 26(a)(2)
shall be made on or before:
A copy of the Court's order dated May 5, 2022 is available from
PacerMonitor.com at https://bit.ly/3MCfVk5 at no extra charge.[CC]
NEW YORK DOC: Allen, et al., Seek to Certify Classes
----------------------------------------------------
In the class action lawsuit captioned as Allen, et al., v. New York
State Department of Corrections and Community Supervision, et al.,
Case No. 1:19-cv-08173-LAP (S.D.N.Y.), the Plaintiffs ask the Court
to enter an order granting Plaintiffs' and Plaintiff-Intervenors'
motion to certify classes pursuant to Federal Rule of Civil
Procedure 23(b)(1)-(3) and/or 23(c)4.
-- Liability Class
"All incarcerated individuals in the care and custody of
the New York State Department of Corrections and Community
Supervision who suffered or will suffer from chronic pain
and/or neuropathies for whom medications defined as
Medication with Abuse Potential (MWAP) were denied or
discontinued without an individualized assessment of
medical need or efficacy.
-- Injunctive Class
"All incarcerated individuals who are or will be in the
care and custody of the New York State Department of
Corrections and Community Supervision who suffer or will
suffer from chronic pain and/or neuropathies who require
individualized assessments of medical need for treatment
with MWAP medications.
The Class Period starts June 1, 2015 and extends to the date on
which the New York State Department of Corrections and Community
Supervision, through its Chief Medical Officer, is enjoined from,
or otherwise ceases, allowing the policy, practice and custom of
denying or discontinuing MWAP treatment to incarcerated individuals
without medical justification.
The Plaintiffs include PETER ALLEN, BRIAN BERNARD, MARK DANIELS,
SHANNON DICKINSON, AARON DOCKERY, EDDIE FIELDS, JOHN GRADIA, ANGEL
HERNANDEZ, HUGH KNIGHT, TERRY MATHIS, HAROLD ORTIZ, SEAN PRITCHETT,
RASHID RAHMAN, FELIPE RIVERA-CRUZ, WAYNE STEWART, and DERRICK
WILLIAMS, on behalf of themselves and others similarly situated.
The Defendants include CARL KOENGISMANN, MD; JOHN MORLEY, MD; SUSAN
MUELLER, MD; DEFENDANT S. DINELLO, MD; JOHN HAMMER, MD; ANN ANDOLA,
MD; MIKHAIL GUSMAN, MD; CHUN LEE, MD; KATHLEEN MANTARO, MD; ALBERT
ACRISH, NP; KRISTIN SALOTTI, NP; MARY ASHONG, NP; JOHN DOE #2, MD;
JANE OR JOHN DOE, MD No. 3 - No. 50; AND JANE OR JOHN DOE, NP OR
PA, No. 1 - No. 50.
The New York State Department of Corrections and Community
Supervision is the department of the New York State government that
maintains the state prisons and parole system.
A copy of the Plaintiffs' motion to certify class dated May 12,
2022 is available from PacerMonitor.com at https://bit.ly/3LOqlfh
at no extra charge.[CC]
The Plaintiff is represented by:
Amy Jane Agnew, Esq.
LAW OFFICE OF AMY JANE AGNEW, P.C.
24 Fifth Avenue, Suite 1701
New York, NY 10011
Telephone: (973) 600-1724
E-mail: aj@ajagnew.com
NORTHERN NATURAL: De Leon Seeks Authorization to Send Notice
------------------------------------------------------------
In the class action lawsuit captioned as JESSIE DE LEON,
Individually and for Others Similarly Situated, v. NORTHERN NATURAL
GAS COMPANY, Case No. 7:20-cv-00179-DC-RCG (W.D. Tex.), De Leon
seeks authorization to send notice to:
"All Construction Inspectors working on Northern Natural Gas
projects who were paid a day-rate with no overtime in the
past 3 years (Putative Class Members)."
The Court should conditionally certify this class because De Leon
has more than satisfied his burden of demonstrating that he and
NNG's other Construction Inspectors are similarly situated, as they
performed almost identical duties and were all subjected to NNG's
uniform day rate policy that deprived them of overtime compensation
in violation of the Fair Labor Standards Act (FLSA).
De Leon's proposed class is similarly situated because Northern
Natural Gas (NNG) imposed a uniform common pay practice on its
Construction Inspectors.
De Leon and the Putative Class Members customarily worked more than
40 hours a week. NNG generally scheduled its Construction
Inspectors to work 10-12-hour shifts (though they often worked
more) for weeks at a time. According to NNG's Corporate
representative, Construction Inspectors would typically work 10
hours a day. Despite regularly working 84 or more hours in a week,
De Leon and the Putative Class Members did not receive overtime
compensation under NNG's day rate policy. While working for NNG,
Putative Class Members were paid a day rate with no overtime
compensation, the lawsuit says.
NNG owns and operates natural gas pipeline system.
A copy of the Plaintiff's motion dated May 6, 2022 is available
from PacerMonitor.com at https://bit.ly/39MVWk4 at no extra
charge.[CC]
The Plaintiff is represented by:
Richard M. Schreiber, Esq.
Michael A. Josephson, 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, TX 77046
Telephone: (713) 877-8788
Facsimile: (713) 877-8065
E-mail: rburch@brucknerburch.com
NUTRAMAX LABORATORIES: Lytle, et al., Win Class Certification Bid
-----------------------------------------------------------------
In the class action lawsuit captioned as Justin Lytle, et al., v.
Nutramax Laboratories, Inc. et al., Case No. (), the Hon. Judge
Fernando M. Olguin entered an order that:
1. The Plaintiffs' Motion for Class Certification is granted.
The court certifies the following class pursuant to Rule
23(b)(3) with respect to plaintiffs' claim under the CLRA:
"All persons residing in California who purchased during
the limitations period the following canine Cosequin
products for personal use: Cosequin DS Maximum Strength
Chewable Tablets; Cosequin DS Maximum Strength Plus MSM
Chewable Tablets; and Cosequin DS Maximum Strength Plus
MSM Soft Chews."
2. Excluded from the class are defendants, as well as its
officers, employees, agents or affiliates, and any judge
who presides over this action, as well as all of
defendants' past and resent employees, officers and
directors.
3. The court hereby appoints Justin Lytle and Christine
Musthaler as the representatives of the certified class.
4. The court hereby appoints Milberg Coleman Bryson Phillips
Grossman, PLLC and Levin Papantonio Rafferty as class
counsel.
5. Defendants' Motion to Exclude the Testimony of Bruce
Silverman and Motion to Exclude the Opinions and Testimony
of Dr. Jean Pierre Dubé are denied.
A copy of the Court's order dated May 6, 2022 is available from
PacerMonitor.com at https://bit.ly/3Nr4kEE at no extra charge.[CC]
ON24 INC: Faces Consolidated Shareholder Suit in California Court
-----------------------------------------------------------------
ON24, Inc. disclosed in its Form 10-Q Report for the quarterly
period ended March 31, 2022, filed with the Securities and Exchange
Commission on May 12, 2022, that a class action was filed against
the company alleging that the company's registration statement and
prospectus contained untrue statements of material fact.
The company, its Chief Executive Officer, its Chief Financial
Officer, the members of its Board of Directors and the underwriters
that participated in the Company's IPO are named as defendants in a
consolidated putative class action, captioned "In re ON24, Inc.
Securities Litigation," Case No. 4:21-cv-08578-YGR (filed November
3, 2021), that is currently pending in the United States District
Court for the Northern District of California.
The consolidated complaint purports to assert claims under Sections
11 and 15 of the Securities Act of 1933 on behalf of all persons
and entities that purchased, or otherwise acquired, the company's
common stock issued in connection with the company's IPO.
The complaints allege that the company's registration statement and
prospectus contained untrue statements of material fact and/or
omitted material facts about ON24's growth and customer base.
Plaintiffs seek, among other things, an award of damages and
attorneys' fees and costs.
ON24, Inc. is into cloud-based platform for digital engagement
based in California.
ORACLE CORPORATION: Court Grants UAMH Bid for Class Status
----------------------------------------------------------
In the class action lawsuit captioned as CITY OF SUNRISE PENSION
FUND, et al., FIREFIGHTERS' ORACLE CORPORATION, et al., v. ORACLE
CORPORATION, et al., Case No. 5:18-cv-04844-BLF (N.D. Cal.), the
Hon. Judge Beth Labson Freeman entered an order granting Lead
Plaintiff Union Asset Management Holding AG's motion for class
certification.
The Court said, "Union argues that each of the Rule 23(b)(3)
factors demonstrates that a class action is a superior method of
adjudicating its claims. For the first factor, Union argues that
the Class consists of a large number of geographically dispersed
individuals with small damages -- which renders individual
litigation prohibitively expensive. See id. For the second factor,
Union indicates that it is unaware of any other litigation
asserting these claims on behalf of individual class members. For
the third factor, Union argues that it is undisputed that this
venue is desirable and convenient, since it is "home" to Oracle.
For the fourth factor, Union argues that managing this case as a
class action presents no unusual difficulties. See id. Oracle does
not dispute that a class action is a superior method of
adjudication here. The Court agrees with Union. The Rule 23(b)(3)
factors support that a class action is a superior method of
adjudicating Union's claims. Accordingly, Union has met the
superiority requirement of Rule 23(b)(3)."
Oracle is a Delaware technology company with its headquarters in
California. Oracle trades on the New York Stock Exchange under the
ticker symbol "ORCL."
A copy of the Court's order dated May 9, 2022 is available from
PacerMonitor.com at https://bit.ly/3sTsIXx at no extra charge.[CC]
OREGON: Two Classes Certified in Maney, Stay Lifted in Blewett
--------------------------------------------------------------
In the class action lawsuit captioned as Ross v. Blewett, et al.,
Case No. 2:20-cv-01338 (D. Or.), the Hon. Judge Stacie F. Beckerman
entered an order certifying two classes of plaintiffs in the Maney
class action:
-- the Damages Class, which includes all adults incarcerated
in Oregon Department of Corrections (ODOC) facilities who
were incarcerated on or after February 1, 2020, and while
incarcerated, tested positive or were otherwise diagnosed
with COVID-19 (and if they became incarcerated after
February 1, 2020, tested positive or were otherwise
diagnosed with COVID-19 at least 14 days after they
entered ODOC custody); and
-- the Wrongful Death Class.
However, the defendants in the Maney case are seeking to appeal the
Court's class certification opinion. In light of the further delay,
the Court lifts the stay of this action. The Court invites Maney
class counsel to appear in this case with Plaintiff's consent. The
parties shall submit a joint proposed case management schedule by
June 3, 2022, Judge Beckerman says.
This case was stayed pending resolution of a class certification
motion in a related case (Maney, et al. v. Brown et al., Case No.
6:20-cv-00570-SB).
The nature of suit states Prisoner Petitions -- Habeas Corpus --
Civil Rights.[CC]
OREGON: Two Classes Certified in Maney, Stay Lifted in Bobo
-----------------------------------------------------------
In the class action lawsuit captioned as Bobo v. Brown et al., Case
No. 6:21-cv-00499 (D. Or.), the Hon. Judge Stacie F. Beckerman
entered an order certifying two classes of plaintiffs in the Maney
class action:
-- the Damages Class, which includes all adults incarcerated
in Oregon Department of Corrections (ODOC) facilities who
were incarcerated on or after February 1, 2020, and while
incarcerated, tested positive or were otherwise diagnosed
with COVID-19 (and if they became incarcerated after
February 1, 2020, tested positive or were otherwise
diagnosed with COVID-19 at least 14 days after they
entered ODOC custody); and
-- the Wrongful Death Class.
However, the defendants in the Maney case are seeking to appeal the
Court's class certification opinion. In light of the further delay,
the Court lifts the stay of this action. The Court invites Maney
class counsel to appear in this case with Plaintiff's consent. The
parties shall submit a joint proposed case management schedule by
June 3, 2022, Judge Beckerman says.
This case was stayed pending resolution of a class certification
motion in a related case (Maney, et al. v. Brown et al., Case No.
6:20-cv-00570-SB).
The nature of suit states Prisoner Petitions -- Habeas Corpus --
Civil Rights.[CC]
OREGON: Two Classes Certified in Maney, Stay Lifted in Coronado
---------------------------------------------------------------
In the class action lawsuit captioned as Coronado v. Brown et al.,
Case No. 6:21-cv-00148 (D. Or.), the Hon. Judge Stacie F. Beckerman
entered an order certifying two classes of plaintiffs in the Maney
class action:
-- the Damages Class, which includes all adults incarcerated
in Oregon Department of Corrections (ODOC) facilities who
were incarcerated on or after February 1, 2020, and while
incarcerated, tested positive or were otherwise diagnosed
with COVID-19 (and if they became incarcerated after
February 1, 2020, tested positive or were otherwise
diagnosed with COVID-19 at least 14 days after they
entered ODOC custody); and
-- the Wrongful Death Class.
However, the defendants in the Maney case are seeking to appeal the
Court's class certification opinion. In light of the further delay,
the Court lifts the stay of this action. The Court invites Maney
class counsel to appear in this case with Plaintiff's consent. The
parties shall submit a joint proposed case management schedule by
June 3, 2022, Judge Beckerman says.
This case was stayed pending resolution of a class certification
motion in a related case (Maney, et al. v. Brown et al., Case No.
6:20-cv-00570-SB).
The nature of suit states Prisoner Petitions -- Habeas Corpus --
Civil Rights.[CC]
OREGON: Two Classes Certified in Maney, Stay Lifted in Coyle
------------------------------------------------------------
In the class action lawsuit captioned as Coyle v. Brown et al.,
Case No. 6:21-cv-00149 (D. Or.), the Hon. Judge Stacie F. Beckerman
entered an order certifying two classes of plaintiffs in the Maney
class action:
-- the Damages Class, which includes all adults incarcerated
in Oregon Department of Corrections (ODOC) facilities who
were incarcerated on or after February 1, 2020, and while
incarcerated, tested positive or were otherwise diagnosed
with COVID-19 (and if they became incarcerated after
February 1, 2020, tested positive or were otherwise
diagnosed with COVID-19 at least 14 days after they
entered ODOC custody); and
-- the Wrongful Death Class.
However, the defendants in the Maney case are seeking to appeal the
Court's class certification opinion. In light of the further delay,
the Court lifts the stay of this action. The Court invites Maney
class counsel to appear in this case with Plaintiff's consent. The
parties shall submit a joint proposed case management schedule by
June 3, 2022, Judge Beckerman says.
This case was stayed pending resolution of a class certification
motion in a related case (Maney, et al. v. Brown et al., Case No.
6:20-cv-00570-SB).
The nature of suit states Prisoner Petitions -- Habeas Corpus --
Civil Rights.[CC]
OREGON: Two Classes Certified in Maney, Stay Lifted in Sissell
--------------------------------------------------------------
In the class action lawsuit captioned as Sissell v. Brown et al.,
Case No. 6:21-cv-00253 (D. Or.), the Hon. Judge Stacie F. Beckerman
entered an order certifying two classes of plaintiffs in the Maney
class action:
-- the Damages Class, which includes all adults incarcerated
in Oregon Department of Corrections (ODOC) facilities who
were incarcerated on or after February 1, 2020, and while
incarcerated, tested positive or were otherwise diagnosed
with COVID-19 (and if they became incarcerated after
February 1, 2020, tested positive or were otherwise
diagnosed with COVID-19 at least 14 days after they
entered ODOC custody); and
-- the Wrongful Death Class.
However, the defendants in the Maney case are seeking to appeal the
Court's class certification opinion. In light of the further delay,
the Court lifts the stay of this action. The Court invites Maney
class counsel to appear in this case with Plaintiff's consent. The
parties shall submit a joint proposed case management schedule by
June 3, 2022, Judge Beckerman says.
This case was stayed pending resolution of a class certification
motion in a related case (Maney, et al. v. Brown et al., Case No.
6:20-cv-00570-SB).
The nature of suit states Prisoner Petitions -- Habeas Corpus --
Civil Rights.[CC]
OS RESTAURANT: Conditional Cert. of Collective Action Partly OK'd
-----------------------------------------------------------------
In the class action lawsuit captioned as TROY MOXLEY and THOMAS
SPIEGAL Individually and on Behalf of All Other Persons Similarly
Situated, v. OS RESTAURANT SERVICES, LLC and BLOOMIN' BRANDS, INC.,
together doing business as BONEFISH GRILL, Case No.
8:21-cv-01760-JLB-JSS (M.D. Fla.), the Hon. Judge John L.
Badalamenti entered an order granting in part the Plaintiffs'
motion to conditionally certify a Fair Labor Standards Act (FLSA)
Collective Action and Authorize Notice.
-- As to the FLSA claim set forth in Count I of the complaint,
this action is conditionally certified to proceed as a
collective action under 29 U.S.C. section 216(b).
-- The parties are directed to meet and confer about the
information needed to send notice, as well as its content
and method of.
-- The Plaintiffs are directed to file a proposed notice and
consent form, along with a memorandum indicating the method
of dissemination, on or before June 1, 2022.
-- In accordance with Local Rule 3.01(g), Plaintiffs shall
include certification of good faith conferral with opposing
counsel and note whether Defendants have any objections to
the proposed notice, consent form, and method of
dissemination. The Court notes that the certification of
good faith conferral with opposing counsel is not a
perfunctory exercise in the Middle District of Florida.
The case is an unpaid overtime compensation action. In short, the
Defendants own and operate Bonefish Grill restaurants throughout
the United States. The Defendants employed the Plaintiffs, who both
worked as assistant managers at Bonefish Grill restaurants.
Specifically, Mr. Moxley worked as a kitchen/culinary manager and
front of house manager, and Mr. Spiegel worked as a
kitchen/culinary manager. As to their job duties, Plaintiffs allege
that the work they performed "required little skill and no capital
investment, nor did said work include managerial responsibilities
or the exercise of meaningful independent judgment and discretion,"
that the work included "preparing food and drinks, cleaning, and
customer service," and did not include "hiring, firing,
disciplining, or directing the work of other employees, or
exercising meaningful independent judgment or discretion."
A copy of the Court's order dated May 11, 2022 is available from
PacerMonitor.com at https://bit.ly/3wN7QSX at no extra charge.[CC]
PEOPLECONNECT INC: Class Certification Briefing Schedule Entered
----------------------------------------------------------------
In the class action lawsuit captioned as MEREDITH CALLAHAN, et al.,
v. PEOPLECONNECT, INC., Case No. 3:20-cv-09203-EMC (N.D. Cal.), the
Hon. Judge Edward M. Chen entered a class certification briefing
schedule order:
-- The Plaintiffs' Opening Brief due: August 5, 2022
-- The Defendant's Opposition November 7, 2022.
Brief due:
-- The Plaintiffs' Reply Brief due: December 5, 2022
-- Class Certification Motion Hearing: January 12, 2022
Peopleconnect provides online social network services.
A copy of the Court's order dated May 11, 2022 is available from
PacerMonitor.com at https://bit.ly/3lJnh9M at no extra charge.[CC]
PFIZER INC: Faces Product Liability Suits Over Chantix
------------------------------------------------------
Pfizer Inc. disclosed in its Form 10-Q Report for the quarterly
period ended April 3, 2022, filed with the Securities and Exchange
Commission on May 11, 2022, that beginning in August 2021, a number
of putative class actions have been filed against Pfizer in various
U.S. federal courts following Pfizer's voluntary recall of
"Chantix" due to the presence of a nitrosamine,
N-nitroso-varenicline.
Plaintiffs assert that they suffered economic harm purportedly as a
result of purchasing Chantix or generic varenicline medicines sold
by Pfizer. Plaintiffs seek to represent nationwide and
state-specific classes and seek various remedies, including damages
and medical monitoring. Similar putative class actions have been
filed in Canada and Israel, where the product brand is "Champix."
PFIZER INC: Faces Product Liability Suits Over Lipitor
------------------------------------------------------
Pfizer Inc. disclosed in its Form 10-Q Report for the quarterly
period ended April 3, 2022, filed with the Securities and Exchange
Commission on May 11, 2022, that beginning in 2011, purported class
actions relating to "Lipitor" were filed in various federal courts
against, among others, Pfizer, certain Pfizer affiliates, and, in
most of the actions, Ranbaxy Laboratories Ltd. (Ranbaxy) and
certain Ranbaxy affiliates.
The plaintiffs in these various actions seek to represent
nationwide, multi-state or statewide classes consisting of persons
or entities who directly purchased, indirectly purchased or
reimbursed patients for the purchase of Lipitor (or, in certain of
the actions, generic Lipitor) from any of the defendants from March
2010 until the cessation of the defendants' allegedly unlawful
conduct. The plaintiffs allege delay in the launch of generic
Lipitor, in violation of federal antitrust laws and/or state
antitrust, consumer protection and various other laws, resulting
from the 2008 agreement pursuant to which Pfizer and Ranbaxy
settled certain patent litigation involving Lipitor and Pfizer
granted Ranbaxy a license to sell a generic version of Lipitor in
various markets beginning on varying dates, and in certain of the
actions, the procurement and/or enforcement of certain patents for
Lipitor. Each of the actions seeks, among other things, treble
damages on behalf of the putative class for alleged price
overcharges for Lipitor (or, in certain of the actions, generic
Lipitor) during the Class Period. In addition, individual actions
have been filed against Pfizer, Ranbaxy and certain of their
affiliates, among others, that assert claims and seek relief for
the plaintiffs that are substantially similar to the claims
asserted and the relief sought in the purported class actions
described above. These various actions have been consolidated for
pre-trial proceedings in a Multi-District Litigation in the U.S.
District Court for the District of New Jersey.
In September 2013 and 2014, the District Court dismissed with
prejudice the claims of the direct purchasers. In October and
November 2014, the District Court dismissed with prejudice the
claims of all other Multi-District Litigation plaintiffs. All
plaintiffs have appealed the District Court's orders dismissing
their claims with prejudice to the U.S. Court of Appeals for the
Third Circuit. In addition, the direct purchaser class plaintiffs
appealed the order denying their motion to amend the judgment and
for leave to amend their complaint to the Court of Appeals. In
2017, the Court of Appeals reversed the District Court’s
decisions and remanded the claims to the District Court.
PFIZER INC: Faces Product Liability Suits Over Zantac
-----------------------------------------------------
Pfizer Inc. disclosed in its Form 10-Q Report for the quarterly
period ended April 3, 2022, filed with the Securities and Exchange
Commission on May 11, 2022, that a number of lawsuits have been
filed against Pfizer in various federal and state courts alleging
that plaintiffs developed various types of cancer, or face an
increased risk of developing cancer, purportedly as a result of the
ingestion of Zantac.
The significant majority of these cases also name other defendants
that have historically manufactured and/or sold Zantac. Pfizer has
not sold Zantac since 2006, and only sold an over-the-counter
version of the product. Plaintiffs seek compensatory and punitive
damages.
In February 2020, the federal actions were transferred for
coordinated pre-trial proceedings to a Multi-District Litigation in
the U.S. District Court for the Southern District of Florida.
Plaintiffs in the Multi-District Litigation have filed against
Pfizer and many other defendants a master personal injury
complaint, a consolidated consumer class action complaint alleging,
among other things, claims under consumer protection statutes of
all 50 states, and a medical monitoring complaint seeking to
certify medical monitoring classes under the laws of 13 states. In
addition, Pfizer has received service of Canadian class action
complaints naming Pfizer and other defendants, and seeking
compensatory and punitive damages for personal injury and economic
loss, allegedly arising from the defendants' sale of Zantac in
Canada and the State of New Mexico and the Mayor and City Council
of Baltimore separately filed civil actions against Pfizer and many
other defendants in state court, alleging various state statutory
and common law claims in connection with the defendants' alleged
sale of Zantac in those jurisdictions.
In April 2021, a Judicial Council Coordinated Proceeding was
created in the Superior Court of California in Alameda County to
coordinate personal injury actions against Pfizer and other
defendants filed in California state court.
PFIZER INC: Faces Shareholder Suit Over Merger Deal
---------------------------------------------------
Pfizer Inc. disclosed in its Form 10-Q Report for the quarterly
period ended April 3, 2022, filed with the Securities and Exchange
Commission on May 11, 2022, that in October 2021, a putative class
action was filed in the Court of Common Pleas of Allegheny County,
Pennsylvania on behalf of former Mylan N.V. shareholders who
received Viatris common stock in exchange for Mylan shares in
connection with the spin-off of the Upjohn Business and its
combination with Mylan. Viatris, Pfizer, and certain of each
company's current and former officers, directors and employees are
named as defendants.
The complaint alleges that the defendants violated certain
provisions of the Securities Act of 1933 in connection with certain
disclosures made in or omitted from the registration statement and
related prospectus issued in connection with the transactions.
Plaintiff seeks damages, costs and expenses and other equitable and
injunctive relief.
PHILADELPHIA SCHOOL DISTRICT: Sargent Loses Class Certification Bid
-------------------------------------------------------------------
In the class action lawsuit captioned as SHARICE SARGENT, et al.,
v. THE SCHOOL DISTRICT OF PHILADELPHIA, et al., Case No.
2:22-cv-01509-CFK (E.D. Pa.), the Hon. Judge entered an order
denying without prejudice motion for class certification.
The Plaintiffs' motion is denied without prejudice to be
resubmitted for consideration after the close of pleadings and a
ruling is made on the demand for a preliminary injunction.
A copy of the Court's order dated May 12, 2022 is available from
PacerMonitor.com at https://bit.ly/3z1vHBm at no extra charge.[CC]
PUBLIC PARTNERSHIPS: Court Certifies Class of Care Workers
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In the class action lawsuit captioned as RALPH TALARICO,
individually and on behalf of all others similarly situated, v.
PUBLIC PARTNERSHIPS, LLC, d/b/a PCG, PUBLIC PARTNERSHIPS, Case No.
5:17-cv-02165-JLS (E.D. Pa.), the Hon. Judge Jeffrey L. Schmehl
entered an order granting the Plaintiff's motion for class
certification and final collective action certification and
Defendant's response thereto, as well as Plaintiff's reply, and
after oral argument held, as follows:
1. The Plaintiff's motion for class certification and final
collective action certification is granted;
2. The Plaintiff Ralph Talarico is designated the class
representative and his counsel is designated as Class
Counsel;
3. The class shall be defined as follows:
"All direct care workers in Pennsylvania who provided
services to participants in the Medicaid Home and
Community-Based Services waiver program and were paid
through Public Partnerships, LLC, who worked more than 40
hours in a work week at any time from May 11, 2014 through
date of trial without receiving an overtime premium for
all hours over 40."
4. The parties shall provide the Court with a status report
within 30 days regarding the form of notice to be sent to
class members under Section 216(b) of the Fair Labor
Standards Act; and
5. The Plaintiff's motion to Allow Late Opt-Ins is granted.
Public Partnerships provides financial services. The Company offers
financial management, budget planning, consulting, and other
related services.
A copy of the Court's order dated May 12, 2022 is available from
PacerMonitor.com at https://bit.ly/3wObL1W at no extra charge.[CC]
RAVI ZACHARIAS: Court Grants in Part Bids to Dismiss Carrier Suit
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In the case, DEREK CARRIER, et al., Plaintiffs v. RAVI ZACHARIAS
INTERNATIONAL MINISTRIES, INC. a 501(2)(3) Corporation, et al.,
Defendants, Civil Action File No. 1:21-CV-3161-TWT (N.D. Ga.),
Judge Thomas W. Thrash, Jr., of the U.S. District Court for the
Northern District of Georgia, Atlanta Division, grants in part and
denies in part Defendant Margaret Zacharias' Motion to Dismiss and
Defendants Ravi Zacharias International Ministries, Inc. and RZIM
Productions, Inc.'s Motion to Dismiss.
I. Background
Ravi Zacharias was a well-known Christian apologist and evangelical
minister who founded the eponymous Ravi Zacharias International
Ministries, Inc. (collectively, with RZIM Productions, Inc.,
"RZIM") in 1984. Christian apologetics is a branch of theology
devoted to defending the Christian faith through an evidence-based
or "more philosophical and propositional" approach; the aim is "to
fortify the believer against personal doubts and to remove the
intellectual stumbling blocks that inhibit the conversion of
unbelievers." Built on this "strong evangelistic and apologetic
foundation," RZIM describes its mission as "to support, expand, and
enhance the preaching and teaching ministry of Ravi Zacharias
intended to touch both the heart and the intellect of the thinkers
and opinion-makers of society with the Truth of the Gospel of Jesus
Christ." In the same vein, the organization's stated "vision" is
"to build a team with a fivefold thrust of evangelism, apologetics,
spiritual disciplines, training, and humanitarian support."
RZIM works toward this vision through conferences, lectures, and
seminars held around the world; it also produces podcast and radio
shows as well as online videos which featured Zacharias until his
death on May 19, 2020. For many years, these programs found a
dedicated audience in the Plaintiffs: Dora and Derek Carrier
listened to the "Let My People Think" podcast and watched YouTube
videos of Zacharias from early 2019 until his death in 2020, and
Elizabeth Nelson listened to Zacharias's radio shows for about 15
years and the "Let My People Think" podcast since 2014 or 2015.
Mrs. Nelson would also discuss Zacharias's Christian apologetics
preaching and mission with her husband Chris Nelson. Over time, the
Carriers "came to believe they were hearing teachings of the Gospel
from a moral, righteous, and humble Christian leader." The Nelsons
likewise considered Zacharias and RZIM to be "spiritually aligned
with the Gospel of Jesus Christ and completely dedicated to a
mission of spreading the Gospel, teaching new apologists, and
trying to help people through humanitarian efforts."
While listening to RZIM's programs, the Plaintiffs recall hearing
Zacharias and other speakers solicit donations to RZIM. The
Plaintiffs heeded these calls for donations, with the Carriers
giving $30,000 to RZIM on Jan. 21, 2020, and the Nelsons giving a
total of $5,422.50 between June 2014 and December 2020. Both
couples allege that they "reasonably relied on Zacharias's and
RZIM's uniform messaging that they were dedicated to a mission of
Christian apologetics and that contributions made by people like
the Plaintiffs would be used to financially support that mission."
According to the Complaint, though, Zacharias "was not who he
claimed to be" but was instead "a serial sexual and spiritual
predator and a prolific sex offender" since at least October 2014.
Zacharias invested in and frequented two health spas -- Touch of
Eden and Jivan Wellness -- which were operated, one after the
other, at the same Alpharetta location starting in 2004. Nearly two
dozen therapists at the spas have reported inappropriate, sexual
behavior by Zacharias during massages, including nudity,
maintaining an erection, asking therapists to touch his genitals,
and groping.
The Plaintiffs continued making contributions to RZIM while it
defended Zacharias and he remained the organization's leader. The
Complaint asserts that RZIM's actions and failure to respond
appropriately to reports of Zacharias's sexual misconduct furthered
the public deception that Zacharias was a faith-filled, moral, and
upstanding Christian leader. RZIM's acts and omissions further
allowed Zacharias to continue sexually abusing women under the
cover of Christian ministry and permitted Zacharias's ongoing,
deceptive fundraising efforts for RZIM.
On Sept. 29, 2020, a few months after Zacharias's death,
Christianity Today published an article revealing sexual misconduct
allegations by three women. Following the article, RZIM hired a law
firm, Miller & Martin PLLC, to investigate these and other
accusations levied against Zacharias. The Miller & Martin Report,
which RZIM made public on Feb. 9, 2021, revealed that some women
did not come forward with their stories earlier out of fear no one
would believe them. It also found that Zacharias funneled RZIM
funds to his victims: He gave them large tips after massages,
showered them with expensive gifts, and provided monthly financial
support through "Touch of Hope," a discretionary RZIM fund
earmarked for humanitarian efforts. In one instance, Zacharias paid
$40,000 for a woman's culinary education. He also traveled with a
personal massage therapist paid for by RZIM.
The Plaintiffs allege that "at no point prior to February 2021 did
anyone at RZIM inform them that contributed funds were also used to
further serious sexual misconduct or to cover up that misconduct."
They would not have donated to RZIM, the Complaint continues, "had
they been aware of these facts and of Zacharias's moral failings."
RZIM has since admitted its "failures in 2017, including its
failure to commission an independent investigation at that time,
allowing tremendous pain to continue."
The Plaintiffs initiated the class action on Aug. 4, 2021, against
RZIM and Margaret Zacharias, in her capacity as administrator of
Zacharias's estate. They allege that the Defendants "bilked
hundreds of millions of dollars from well-meaning contributors who
believed RZIM and Zacharias to be faith-filled Christian leaders,"
when "in fact, Zacharias was a prolific sexual predator who used
his ministry and RZIM funds to perpetrate sexual and spiritual
abuse against women."
To that end, the proposed class includes "all persons in the United
States who made contributions of monetary value to Ravi Zacharias
and/or the Ravi Zacharias International Ministry from 2004 through
Feb. 9, 2021."
The Complaint asserts three claims, on behalf of the Plaintiffs and
the proposed class, against the Defendants: violation of the
Georgia Charitable Solicitations Act (Count I), unjust enrichment
(Count II), and violation of the Georgia Fair Business Practices
Act (Count III). The Estate and RZIM now move separately to dismiss
all of the claims against them.
II. Discussion
A. Ecclesiastical Abstention Doctrine
First, the Defendants contend that the Court lacks subject matter
jurisdiction to adjudicate the many ecclesiastical questions raised
in the Plaintiffs' claims.
The Plaintiffs argue, as a threshold matter, that the
ecclesiastical abstention doctrine should be treated not as a
jurisdictional issue but as an affirmative defense. Next, they
contend that ecclesiastical abstention does not foreclose this
action because (1) RZIM is not a church; (2) the Plaintiffs are not
members of any RZIM church; and (3) the Plaintiffs do not challenge
any ecclesiastical decisions taken by RZIM. The Plaintiffs' third
point -- that the case "does not present or concern an
ecclesiastical decision RZIM made and to which this Court could
defer" -- goes to the heart of the ecclesiastical abstention
doctrine.
Judge Thrash will exercise jurisdiction over the Plaintiffs' claims
to the extent they are predicated on misuse-of-funds allegations
but not faith-based allegations. At bottom, he says, the
faith-based allegations ask the Court to examine the theology and
customs of Christianity and Christian apologetics to determine
whether Zacharias and RZIM fulfilled the religion's (and the
Plaintiffs') moral standards. The Court would have to make
inherently ecclesiastical determinations as part of this inquiry,
such as what it means to be a "faith-filled, moral, and upstanding
Christian leader" and whether Zacharias's alleged sexual misconduct
is "diametrically opposed to the teachings of Christianity." It is
not the role of federal courts to answer these kinds of questions
"because that would require defining the very core of what the
religious body as a whole believes." In doing so, a court risks
"establishing" a religion by "putting the enforcement power of the
state behind a particular religious faction."
On the other hand, Judge Thrash believes that the Plaintiffs'
misuse-of-funds allegations do not pose the same First Amendment
concerns. Those allegations, and the claims associated with them,
raise what amounts to a secular factual question: whether the
Defendants solicited funds for one purpose (i.e., Christian
evangelism) but instead used those funds for another purpose (i.e.,
to perpetrate and cover up sexual abuse). That dispute "concerns
the Defendants' actions, not their beliefs," and can be decided
according to state statutes and common law principles. Nothing in
the statute, when applied to the misuse-of-funds allegations, would
require the Court to pass judgment on questions of religious faith
or doctrine. The same is true of the Plaintiffs' claims for unjust
enrichment and violation of the Fair Business Practices Act. Thus,
Judge Thrash is satisfied that neutral principles can be used to
resolve this aspect of the case.
B. Article III Standing
Next, the Defendants argue that the Plaintiffs' unrestricted
charitable gifts to RZIM cannot constitute an injury-in-fact for
purposes of Article III standing. They point to several
out-of-circuit decisions as support that "donating money to a
charitable fund does not confer standing to challenge the
administration of that fund."
But, Judge Thrash finds that the Plaintiffs have not properly
pleaded any fraud stemming from RZIM's past defense and support of
Zacharias. Thompson informed RZIM leadership in 2017 about
Zacharias's inappropriate sexual conversations and interactions
with her, including his requests for indecent photographs. In
response, RZIM allegedly made "reckless misrepresentations in
defending Zacharias against Thompson's allegations despite having
been provided with 'a notebook of evidence.'"
Those misrepresentations, the Complaint states, "allowed Zacharias
to continue sexually abusing women under the cover of Christian
ministry and permitted Zacharias's ongoing, deceptive fundraising
efforts for RZIM." The Plaintiffs claim that they made
contributions to RZIM "during the time of RZIM's continued defense
and support of Zacharias and Zacharias's continued leadership of
RZIM." But none of these allegations cite any statements (general
or specific) made by RZIM about the Thompson incident or
Zacharias's culpability at that time, nor do the Plaintiffs allege
that they ever relied on any (non-existent) statements in donating
to RZIM. This aspect of the Complaint does not hold up under Rule
9(b)'s pleading standard.
C. Charitable Immunity
Next, RZIM argues that the Plaintiffs' claims -- where based on
negligent, and not intentional, conduct -- are barred by the
charitable immunity doctrine. In Georgia, "the general rule is that
charitable trust funds are not to be depleted by subjection to
liability for negligence except where the organization failed to
exercise ordinary care in selecting and retaining its employees and
servants." The Plaintiffs counter that the charitable immunity
doctrine has no place here because the Complaint alleges numerous
intentional, fraudulent acts by RZIM and Zacharias, as well as
wrongful retention and inadequate oversight of Zacharias, RZIM's
employee. Hearing no disagreement on reply, Judge Thrash declines
to extend charitable immunity to RZIM.
D. Statute of Limitations
The Defendants seek to dismiss most of the proposed class claims as
time barred under the applicable statutes of limitations. The
Plaintiffs' Charitable Solicitations Act and unjust enrichment
claims are subject to a four-year statute of limitations, and their
Fair Business Practices Act claim carries an even shorter two-year
limitations period. The proposed class spans a much longer
timeframe -- to include all persons in the United States who made
monetary contributions to Zacharias or RZIM from 2004 through Feb.
9, 2021.
Judge Thrash holds that the Plaintiffs' cause of action is based on
fraudulent and deceptive conduct by RZIM and Zacharias in
soliciting public donations. The Plaintiffs claim that they "did
not learn the truth about Zacharias's sexual misconduct until after
RZIM published the Miller & Martin Report on Feb. 9, 2021." On
reply, the Defendants do not argue that the Plaintiffs could have
discovered the fraud sooner by reasonable diligence; instead, they
urge that "mere silence, without an intentional act to deter a
plaintiff from filing a lawsuit, does not toll the statute of
limitations." But that principle, and the cases on which it relies,
do not apply where fraud is the gravamen of the Plaintiff's
underlying case. For these reasons, the limitations period should
be tolled until Feb. 9, 2021.
E. Unjust Enrichment (Count II)
The Court turns now to the Defendants' claim-specific arguments for
dismissal, beginning with unjust enrichment. The Plaintiffs assert
a claim for unjust enrichment on the grounds that it would be
inequitable for the Defendants to keep donations raised on false
pretenses. The Defendants counter that "donors who make voluntary
contributions are not entitled to restitution," and the Estate
separately argues that it cannot be liable because the Plaintiffs
made donations solely to RZIM, not Zacharias or the Estate.
Judge Thrash inds that the Estate should be dismissed from this
claim since it apparently received no donations. Though the
Plaintiffs argue otherwise in their brief, the Complaint
specifically alleges that the Plaintiffs made their contributions
to RZIM, not Zacharias or the Estate. The Court does not credit
contradictory, conclusory allegations that all of the "Defendants
received payments in the form of charitable contributions from
Plaintiffs and Class Members." Nor is the Court persuaded, absent
any supporting authority, that Zacharias is liable because he was
paid as an officer and employee of RZIM from donor contributions.
If accepted, that theory would expose all RZIM employees to
liability for unjust enrichment merely by accepting a paycheck.
F. Violation of the Charitable Solicitations Act (Count I)
The Court next considers the Plaintiffs' claim under the Charitable
Solicitations Act. The Charitable Solicitations Act creates a
private cause of action against a "charitable organization" or a
"paid solicitor" to recover damages resulting from a violation of
the statute. RZIM and the Estate contend that the "religious
organization" and "bona fide officer" exceptions preclude the
Plaintiffs' claim against them, respectively.
Judge Thrash rules that the Complaint's characterization of
Zacharias -- as "a bona fide officer and employee of RZIM" who
founded the organization in 1984 and led it since at least 2004 --
qualifies him as an executive officer. While it is common sense
that an officer of a charitable organization cannot also be the
organization, other provisions of the statute confirm this
distinction. Relatedly, the Plaintiffs' expansive interpretation of
a charitable organization would make certain terms and provisions
in the statute superfluous. Judge Thrash concludes then that
Zacharias was not a charitable organization within the meaning of
the Charitable Solicitations Act, and that the Plaintiffs have no
right of action thereunder against the Estate.
G. Violation of the Fair Business Practices Act (Count III)
Finally, the Plaintiffs assert a claim under the Fair Business
Practices Act on the grounds that the Defendants' charitable
solicitations were unfair and deceptive consumer practices. They do
not allege (nor could they) that charitable solicitation is a
"consumer act or practice" as defined in the Fair Business
Practices Act. Rather, their claim relies on a provision of the
Charitable Solicitations Act which provides that "a solicitation
will be deemed to be a consumer act or practice or consumer
transaction under" the Fair Business Practices Act.
Judge Thrash finds that (i) since there is no religious
organization exclusion for solicitation in the Charitable
Solicitations Act, the Defendants are not immune to a private
action under the Fair Business Practices Act; (ii) RZIM cites no
authority condoning, as the Complaint alleges, an organization to
solicit donations by fraud or deceit, so the regulatory exemption
does not apply to the case; (iii) the Defendants did not commit any
deceptive consumer practices involving the use of donations on
Touch of Eden or Jivan Wellness; and (iv) although the Miller &
Martin Report "did not find evidence that anyone within RZIM or on
its Board knew that Mr. Zacharias had engaged in sexual
misconduct," this finding does not establish RZIM's state of mind
in the face of contrary, well-pleaded allegations.
III. Conclusion
For the foregoing reasons, Judge Thrash grants in part and denies
in part Defendant Margaret Zacharias's Motion to Dismiss and
Defendants Ravi Zacharias International Ministries, Inc. and RZIM
Productions, Inc.'s Motion to Dismiss.
A full-text copy of the Court's May 13, 2022 Opinion & Order is
available at https://tinyurl.com/3nxhbrwm from Leagle.com.
RENOVACARE INC: Faces Boller Shareholder Suit in NJ Court
---------------------------------------------------------
Renovacare, Inc. disclosed in its Form 10-Q Report for the
quarterly period ended March 31, 2022, filed with the Securities
and Exchange Commission on May 12, 2022, that a class action suit
was filed against the company alleging that the defendants made
false and misleading statements.
On July 16, 2021, Gabrielle A. Boller filed a class action lawsuit
in the U.S. District Court for the District of New Jersey against
the company and certain past and current officers and members of
the company's board of directors. It alleges, among other things,
that in connection with the facts and circumstances underlying the
allegations in the SEC Action, the Boller Defendants engaged in
fraudulent conduct and made false and misleading statements of
material fact or omitted to state material facts necessary to make
the statements not misleading.
The plaintiff seeks a determination that said lawsuit is a proper
class action, compensatory damages in favor of the plaintiff and
other class members, reasonable costs and expenses incurred in the
suit, including counsel fees and expert fees, and such other relief
as the Court may deem proper.
Renovacare, Inc. is a development-stage biotechnology and medical
device company based in Arizona.
RENTGROW INC: First Cir. Affirms Summary Judgment in McIntyre Suit
------------------------------------------------------------------
In the case, PATRICIA McINTYRE, on behalf of herself and all others
similarly situated, Plaintiff, Appellant v. RENTGROW, INC., d/b/a
Yardi Resident Screening, Defendant, Appellee, Case No. 21-1637
(1st Cir.), the U.S. Court of Appeals for the First Circuit
affirmed the district court's entry of summary judgment in favor of
RentGrow.
I. Introduction
The principal question in the putative class action is whether the
facts, taken in the light most congenial to the Plaintiff-Appellant
McIntyre, would permit a rational jury to find that
Defendant-Appellee RentGrow willfully violated the Fair Credit
Reporting Act (FCRA), 15 U.S.C. Sections 1681-1681x. The district
court answered this question in the negative and entered summary
judgment in favor of RentGrow.
II. Background
RentGrow is a consumer reporting agency (CRA) that generates
reports used by landlords and property managers to screen
prospective tenants. The information contained in these
tenant-screening reports includes summaries of public records of
court proceedings involving each prospective tenant. RentGrow
neither obtains nor reviews these court records itself but, rather,
purchases reports synthesizing the court records from TransUnion
Background Data Solutions (TUBDS), which is a subsidiary of
TransUnion (one of the three largest CRAs in the United States).
RentGrow conducts some modest filtering to sift out some of the
court-records information it receives and then synopsizes the
remainder into its tenant-screening reports. In a declaration
signed under penalty of perjury by Patrick Hennessey, RentGrow's
vice president of resident screening, RentGrow describes the
arrangement. In deposition testimony, Hennessey indicated that
RentGrow was largely unaware of the procedures that TUBDS used to
collect its court-records information and what procedures it had in
place to ensure the accuracy of that data.
In 2017, McIntyre expressed interest in renting an apartment in
Philadelphia, Pennsylvania. The property manager of the apartment
complex used RentGrow's services to screen prospective tenants and
asked RentGrow for a tenant-screening report. RentGrow, in turn,
asked TUBDS for court-records information pertaining to McIntyre.
As matters turned out, McIntyre had a somewhat checkered housing
history: Three previous landlords had taken her to court in
eviction proceedings and related matters. The original
tenant-screening report that RentGrow prepared, using court-records
information supplied by TUBDS, reflected this history but (McIntyre
alleges) contained some meaningful inaccuracies. Those inaccuracies
related to things like the current status of the cases brought
against McIntyre and whether the arrearages allegedly owed by
McIntyre were still outstanding.
RentGrow delivered this original tenant-screening report to the
property manager, recommending that McIntyre's application be
rejected. The property manager determined that McIntyre was
ineligible to rent an apartment in the complex.
The rejection of McIntyre's bid to lease the apartment was not the
end of the matter. After learning the contents of RentGrow's
original tenant-screening report, McIntyre notified RentGrow that
she disputed portions of certain entries in the civil court records
section. RentGrow promptly notified TUBDS of McIntyre's complaints
and updated its tenant-screening report within a month (using newly
acquired information from TUBDS). Even with updates to the report,
McIntyre remained ineligible to lease the apartment. And in her
view, the revisions were too little and too late.
The FCRA furnishes a private right of action to consumers who claim
to be harmed by violations of its strictures. Invoking this private
right of action and noting that RentGrow maintained its principal
place of business in Waltham, Massachusetts, McIntyre commenced a
civil action in the U.S. District Court for the District of
Massachusetts. She sued RentGrow both on her own behalf and as the
representative of a putative class of similarly situated persons.
In her complaint, she alleged that the inaccurate information in
the original tenant-screening report, coupled with RentGrow's
reliance on TUBDS's court-records information, transgressed section
1681e(b) of the FCRA, and gave rise to liability for both negligent
and willful noncompliance with the statute.
Negligent noncompliance and willful noncompliance are two different
bases of liability for violation of the same substantive
obligation. McIntyre's complaint, though, pleaded RentGrow's
alleged violation of the statute in a single count. The district
court treated that count as a unitary claim, asserting dual
theories of liability.
Following pretrial discovery, RentGrow moved for summary judgment.
McIntyre opposed this motion and cross-moved for class
certification. Because neither negligent noncompliance nor willful
noncompliance could in its view supply a basis for liability, the
court entered summary judgment in RentGrow's favor. This ruling
also served to sound the death knell for McIntyre's motion for
class certification. Accordingly, the district court denied class
certification and dismissed McIntyre's action. This timely appeal
followed.
II. Analysis
A district court may grant summary judgment only if "the record,
construed in the light most congenial to the nonmovant, presents no
genuine issue as to any material fact and reflects the movant's
entitlement to judgment as a matter of law." Where, as in the
present case, the motion is premised on the absence of a genuine
issue of material fact, the nonmovant bears the burden of adducing
evidence showing "an issue of fact that is `more than merely
colorable.'"
A. The Willfulness Framework.
On appeal, McIntyre challenges only the district court's
determination that she did not adduce evidence sufficient to show
that RentGrow willfully failed to comply with its obligations under
section 1681e(b). In Safeco Ins. Co. of Am. v. Burr, 551 U.S. 47,
52 (2007), the Supreme Court clarified that, under the FCRA as
under the common law, willfulness encompasses not only intentional
or knowing violations but also reckless ones. McIntyre does not
contend that RentGrow intentionally or knowingly failed to comply
with section 1681e(b). Instead, she contends that the summary
judgment record, construed in the requisite light, suffices to show
recklessness on RentGrow's part.
The First Circuit finds that RentGrow concedes that section
1681e(b), which requires that a CRA "follow reasonable procedures
to assure maximum possible accuracy" of reported information,
presents just such a situation, that is, a situation in which
compliance does not turn squarely on statutory interpretation but,
rather, on the facts. In such a case, the First Circuit must
evaluate whether a CRA acted in disregard of facts that would make
it obvious, considering the totality of the circumstances, that
there was an unjustifiably high risk that it was not complying with
the statute.
B. McIntyre's Willful Noncompliance Claim.
Against this backdrop, the First Circuit trains the lens of our
inquiry upon McIntyre's claim that RentGrow recklessly failed to
comply with section 1681e(b). The essence of this inquiry is
whether, considering the totality of the circumstances, a jury
could find that RentGrow implemented its procedures in disregard of
facts that would have made it obvious that it was running an
unjustifiably high risk of failing to satisfy its compliance
obligations under section 1681e(b).
To reach this question, though, the First Circuit first considers
two antecedent queries. First, could a jury find that McIntyre's
report contained material inaccuracies resulting from the
procedures employed by RentGrow? Second, could a jury find that
RentGrow failed to follow reasonable procedures to assure maximum
possible accuracy? The First Circuit addresses these queries
sequentially, mindful that -- if the answer to either is in the
negative -- RentGrow cannot be liable for willful noncompliance
with section 1681e(b).
As to accuracy, the First Circuit holds that the district court did
not err in concluding that the question of whether McIntyre's
report contained materially inaccurate information was for the
jury. Thus, McIntyre has checked the first box necessary for a
willful noncompliance claim.
As to compliance with reasonable procedures, the First Circuit
finds that the evidence as to the reasonableness of RentGrow's
procedures to assure maximum possible accuracy was conflicting and,
thus, presented a question of fact for the jury. It follows that
McIntyre has checked the second box needed for prosecution of her
willful noncompliance claim.
As to recklessness, the First Circuit determines that no reasonable
jury could find that the publication relied on by McIntyre was
sufficient to put RentGrow on clear notice that its battery of
procedures to assure accuracy was inadequate under the
circumstances to satisfy its compliance obligations. Accordingly,
it concludes that McIntyre has not adduced, by means of the
Supervisory Highlights publication on which she stakes her case on
appeal, sufficient evidence to show that RentGrow was acting
recklessly. Put another way, no reasonable jury could conclude,
based on that publication, that RentGrow was disregarding an
unjustifiably high risk, of which it knew or had reason to know,
that it was failing to follow reasonable procedures to assure
maximum possible accuracy of the information contained in its
tenant-screening reports.
III. Conclusion
The First Circuit need go no further. In order to thwart the swing
of the summary judgment axe, a plaintiff must adduce competent
evidence sufficient to prove each and every element of her claim.
McIntyre has failed to carry this burden with respect to proof of
recklessness. And because McIntyre premised her willful
noncompliance claim solely on recklessness, RentGrow was entitled
to summary judgment on that claim. The district court, therefore,
did not err either in granting RentGrow's Rule 56(a) motion or in
denying McIntyre's motion for class certification. Accordingly, the
First Circuit affirmed.
A full-text copy of the Court's May 13, 2022 Order is available at
https://tinyurl.com/bdemkure from Leagle.com.
John Soumilas -- jsoumilas@consumerlawfirm.com -- with whom James
A. Francis -- jfrancis@consumerlawfirm.com -- Jordan M. Sartell --
jsoumilas@consumerlawfirm.com -- and Francis Mailman Soumilas, P.C.
were on brief, for the Appellant.
Keith Levenberg -- klevenberg@goodwinlaw.com -- with whom James W.
McGarry -- jmcgarry@goodwinlaw.com -- Joseph F. Yenouskas --
jyenouskas@goodwinlaw.com -- Tierney E. Smith and Goodwin Procter
LLP were on brief, for the Appellee.
RIVIAN AUTOMOTIVE: Faces Class Suit Over IPO
--------------------------------------------
Rivian Automotive, Inc. disclosed in its Form 10-Q Report for the
quarterly period ended March 31, 2022, filed with the Securities
and Exchange Commission on May 11, 2022, that on March 7, 2022 an
alleged stockholder filed suit against Rivian Automotive, Inc.,
certain of its officers and directors, and Rivian's IPO
underwriters in the United States District Court, Central District
of California, on behalf of a putative class of purchasers of
Rivian common stock in its IPO.
The complaint alleges violations of Section 11 of the Securities
Act in connection with the IPO and, more specifically, that there
were misstatements and omissions in Rivian's registration statement
in connection with the IPO.
Rivian Automotive, Inc. is into designing, developing,
manufacturing, and selling category-defining electric vehicles,
accessories and related services directly to customers in the
consumer and commercial markets.
RIVIAN AUTOMOTIVE: Faces Securities in California Court
-------------------------------------------------------
Rivian Automotive, Inc. disclosed in its Form 10-Q Report for the
quarterly period ended March 31, 2022, filed with the Securities
and Exchange Commission on May 11, 2022, that in April 19, 2022, an
alleged stockholder filed a securities class action against Rivian
Automotive, Inc. and certain of its officers and directors in the
Central District of California, on behalf of a putative class of
purchasers of our common stock between November 10, 2021 and March
10, 2022.
The complaint alleges violations of Sections 11 and 15 of the
Securities Act and Sections 10(b) and 20(a) of the Exchange Act and
seeks damages and attorneys' fees, among other things.
Rivian Automotive, Inc. is into designing, developing,
manufacturing, and selling category-defining electric vehicles,
accessories and related services directly to customers in the
consumer and commercial markets.
RIVIAN AUTOMOTIVE: Faces Shareholder Suit in California Court
-------------------------------------------------------------
Rivian Automotive, Inc. disclosed in its Form 10-Q Report for the
quarterly period ended March 31, 2022, filed with the Securities
and Exchange Commission on May 11, 2022, that on March 22, 2022, an
alleged stockholder filed a securities class action against Rivian
Automotive, Inc., certain of its officers and directors, and its
IPO underwriters in the Central District of California, on behalf
of a putative class of purchasers of its common stock between
November 10, 2021 and March 10, 2022.
The complaint, in addition to alleging violations of Sections 11
and 15 of the Securities Act, alleges violations under Sections
10(b) and 20(a) of the Exchange Act.
Rivian Automotive, Inc. is into designing, developing,
manufacturing, and selling category-defining electric vehicles,
accessories and related services directly to customers in the
consumer and commercial markets.
RUTTER'S INC: Class Cert. Sought in Data Security Breach Suit
-------------------------------------------------------------
In the class action lawsuit re Rutter's Inc. Data Security Breach
Litigation, Case No. 1:20-cv-00382-CCC-KM (M.D. Pa.), the Plaintiff
asks the Court to enter an order:
1. certifying the following Class and Subclass:
-- The Class: All person s whose payment card information
was compromised 2 in the Data Breach.
-- The Subclass: All members of the Class that either: (1)
experienced a fraudulent charge on a compromised
payment card, and/or (2) incurred out-of-pocket
expenses or spent time and effort in responding to the
Data Breach.; and
2. appointing Lloyd F. Collins as Class Representative and
appointing Benjamin F. Johns of Chimicles Schwartz Kriner
& Donaldson-Smith LLP and Christian Levis of Lowey
Dannenberg, P.C. as Class Counsel in this Action.
Rutter's is a chain of convenience stores and gas stations with 78
locations in Central Pennsylvania.
A copy of the Plaintiff's motion dated May 10, 2022 is available
from PacerMonitor.com at https://bit.ly/3wHw01g at no extra
charge.[CC]
The Plaintiff is represented by:
Benjamin F. Johns, Esq.
Samantha E. Holbrook, Esq.
Alex M. Kashurba, Esq.
CHIMICLES SCHWARTZ KRINER
& DONALDSON-SMITH LLP
One Haverford Centre
361 Lancaster Avenue
Haverford, PA 19041
Telephone: (610) 642-8500
Facsimile: (610) 649-3633
E-mail: bfj@chimicles.com
seh@chimicles.com
amk@chimicles.com
- and -
Amanda Fiorilla, Esq.
Anthony M. Christina, Esq.
Christian Levis, Esq.
LOWEY DANNENBERG, P.C.
44 South Broadway, Suite 1100
White Plains, NY 10601
Telephone: (914) 997-0500
E-mail: clevis@lowey.com
afiorilla@lowey.com
achristina@lowey.com
S.C. JOHNSON: July 21 Continuance of Class Cert. Hearing Sought
---------------------------------------------------------------
In the class action lawsuit captioned as ELIZABETH MAISEL,
individually and on behalf of all others similarly situated, v.
S.C. JOHNSON & SON, INC., a Wisconsin Corporation, Case No.
3:21-cv-00413-TSH (N.D. Cal.), the Parties ask the Court to enter
an order to continue the hearing on the Plaintiff's motion for
class certification from June 30, 2022 to July 21, 2022.
On February 16, 2021, the Court granted SC Johnson's administrative
motion to extend SC Johnson's time to respond to Plaintiff's
complaint by two weeks.
On May 26, 2021 the Court entered an initial Case Management Order
setting a case schedule. On April 22, 2022, the Court sua sponte
continued the hearing on Plaintiff's Motion for Class Certification
from May 19, 2022 to June 30, 2022.
S. C. Johnson & Son, Inc. is an American multinational,
privately-held manufacturer of household cleaning supplies and
other consumer chemicals based in Racine, Wisconsin.
A copy of the Parties' motion dated May 10, 2022 is available from
PacerMonitor.com at https://bit.ly/3GeRXJr at no extra charge.[CC]
The Plaintiff is represented by:
Katherine A. Bruce, Esq.
CLARKSON LAW FIRM
22525 Pacific Coast Hwy
Malibu, CA 90265
Telephone: (213) 788-4050
E-mail: clarksonlawfirm.com
The Defendant is represented by:
Purvi G. Patel, Esq.
Kelsey Harrison, Esq.
MORRISON & FOERSTER LLP
707 Wilshire Boulevard, Suite 6000
Los Angeles, CA 90017-3543
Telephone: (213) 892-5200
Facsimile: (213) 892-5454
E-mail: PPatel@mofo.com
KHarrison@mofo.com
- and -
Thomas P. Schult, Esq.
BERKOWITZ OLIVER LLP
2600 Grand Boulevard, Suite 1200
Kansas City, MO 64108
Telephone: (816) 561-7007
Facsimile: (816) 561-1888
E-mail: TSchult@berkowitzoliver.com
- and -
Camila A. Tapernoux, Esq.
MORRISON & FOERSTER LLP
425 Market Street
San Francisco, CA 94105
Telephone: (415) 268-7000
Facsimile: (415) 268-7522
E-mail: CTapernoux@mofo.com
SANTANDER CONSUMER: Certified Question of Law in Lyles Answered
---------------------------------------------------------------
In the case, JABARI MORESE LYLES v. SANTANDER CONSUMER USA INC.,
Misc. No. 3, September Term, 2021 (Md. App.), the Court of Appeals
of Maryland holds that CL Section 12-1018(b) requires a credit
grantor that is found to have knowingly violated the Credit Grantor
Closed End Credit Provisions to forfeit three times the amount of
interest, fees, and charges collected in violation of the
subtitle.
Before the Court is a certified question of law from the U.S.
District Court for the District of Maryland ("federal district
court") regarding the calculation of damages under Maryland Code
("Md. Code"), Commercial Law Article Section 12-1018(b). The
Appellant initiated the underlying class action against Appellee
Santander for alleged violations of Credit Grantor Closed End
Credit Provisions ("CLEC").
I. Introduction
Consumers may use "closed end credit" and "revolving credit" in
making purchases for a variety of consumer goods by borrowing funds
through a credit plan. "Closed end credit" requires a borrower to
repay the amount owed in multiple installments, generally of an
equal amount, over a fixed period of time. "Revolving credit"
enables a borrower to purchase goods or secure loans on a
continuing basis as long as the borrower's total balance does not
exceed a specified limit. The borrower has the option of paying the
minimum required monthly payment, paying any amount above the
minimum payment each month, or paying off the entire balance.
Borrowers frequently access closed end credit to finance the
purchase of a motor vehicle. In Maryland, if the purchase of a
motor vehicle is financed by an installment sale, the lender may
elect for the contract to be governed by either of two statutes
located in Title 12 of the Commercial Law Article ("CL") of the
Maryland Code -- the CLEC CL Sections 12-1001 et seq., or the
Maryland Retail Installment Sales Act, CL Sections 12-601 et seq.
The present matter involves a borrower who purchased a motor
vehicle and financed it by closed end credit pursuant to an
agreement governed by CLEC.
Before the Court is a certified question of law from the U.S.
District Court for the District of Maryland ("federal district
court") regarding the calculation of damages under Maryland Code
("Md. Code"), (1983, 2013 Repl. Vol., 2021 Supp.), Commercial Law
Article Section 12-1018(b). Appellant Jabari Morese Lyles initiated
the underlying class action against Appellee Santander for alleged
violations of CLEC.
The matter comes before the Court with unique posturing. The
question posed to the Court will inform the federal district
court's analysis of its subject matter jurisdiction after
resolution of the certified question. Mr. Lyles, the Plaintiff in
the federal district court, advocates for a damages calculation
that would entitle him to lesser monetary relief than the
interpretation Santander argued before the federal district court.
II. Background
On Jan. 11, 2021, Mr. Lyles initiated the underlying class action
in the Circuit Court for Baltimore City alleging that Santander
violated CLEC. Mr. Lyles entered into a Retail Installment Sales
Contract ("RISC") to finance the purchase of a motor vehicle. The
RISC, subsequently assigned to Santander, expressly invoked CLEC as
the governing law. Mr. Lyles financed $20,657 in the RISC with
finance charges of $15,596.44 throughout the duration of the RISC.
Mr. Lyles completed several payments to Santander under the RISC.
As of the filing of the underlying class action, Santander
collected at least $27,029.67 on the RISC, which amounts to
$6,372.67 more than the amount Mr. Lyles financed under the RISC.
According to Santander, $15,603.54 remains due on the RISC.
Santander charges a convenience fee to its customers "for making a
payment by phone through a live representative or through an
automated system or through the internet." On Mr. Lyles' RISC,
Santander charged and collected twelve convenience fees, each for
$10.95, totaling $131.40.
Mr. Lyles maintains that Santander knowingly violated CLEC by
charging the twelve convenience fees and asserts that he and the
purported class are entitled to relief under CL Section
12-1018(a)(2) and CL Section 12-1018(b). Santander removed the
action to the federal district court on March 4, 2021 pursuant to
28 U.S.C. Section 1332(d)1, which, in part, requires the class
action's amount in controversy to exceed $5 million.
Presently, a Motion for Remand is pending before the federal
district court. As such, the federal district court's subject
matter jurisdiction over the matter is dependent on the proper
amount in controversy -- i.e., the appropriate amount of damages
Mr. Lyles may be entitled to under CL Section 12-1018(b).
The federal district court certified the following question of law
to the Court of Appeals to determine the appropriate interpretation
of CL Section 12-1018(b): If a credit grantor is found to have
knowingly violated Credit Grantor Closed End Credit Provisions
(CLEC), Maryland Code Annotated, Commercial Law Sections 12-1001,
et seq., does CL Section 12-1018(b) require the credit grantor to
return three times: (1) all amounts collected by the credit grantor
in excess of the principal amount financed; (2) only those amounts
collected that the borrower contends violate CLEC (in this case,
the convenience fees); or (3) some other amount?
III. Discussion
Mr. Lyles maintains that if a credit grantor knowingly violates
CLEC, CL Section 12-1018(b) requires the credit grantor to forfeit
three times the amount of the unauthorized charges. In the present
case, that would total $394.20, which is three times $131.40, the
total amount collected for the twelve convenience fees charged. In
support of this contention, Mr. Lyles relies upon the recent Court
of Special Appeals' holding in Bolling v. Bay Country Consumer
Finance, Inc., 251 Md.App. 575 (2021). He asserts that the Court of
Special Appeals' interpretation of CL Section 12-1018(a)(2), in
conjunction with the plain language of CL Section 12-1018(b),
indicates that a knowing violation of CLEC entitles the borrower to
treble the unauthorized amounts charged.
In addition, Mr. Lyles emphasizes that the legislative history of
CL Section 12-1018(b) demonstrates that the penalty provisions set
forth in CLEC are identical to the penalties set forth in CL
Section 12-413, the Maryland Secondary Mortgage Loan Law.
Accordingly, Mr. Lyles asserts that caselaw and regulatory
decisions interpreting CL Section 12-413 provide the appropriate
calculation of damages under CL Section 12-1018(b).
Before the federal district court, Santander argued that under CL
Section 12-1018(b) a credit grantor would be required to pay three
times the amount collected in excess of the principal amount
financed under the RISC. In this matter, that would total
$19,118.01, which is three times $6,372.67, the amount Santander
has collected above the amount financed under the RISC.
However, before the Court of Appeals, Santander did not
substantively oppose Mr. Lyles' interpretation of CL Section
12-1018(b). The counsel for Santander emphasized at oral arguments
the "interesting position" Santander maintains of "having an
adversary reducing the amount sought by two million dollars."
Santander cautions that the Bolling decision is not properly before
the Court. Therefore, it would be imprudent to endorse that
holding. Further, Santander maintains that Bolling did not
specifically analyze CL Section 12-1018(b) and, accordingly, should
not influence this Court's statutory interpretation.
The Court of Appeals holds that, based upon prior caselaw regarding
CLEC, a plain language analysis of CL Section 12-1018(b), and a
review of the pertinent legislative history, CL Section 12-1018(b)
requires a credit grantor who knowingly violates CLEC to forfeit
three times the amounts of interest, fees, and charges collected in
violation of CLEC, (in the present case, the convenience fees).
First, the Court of Appeals holds that the issue of when a borrower
is permitted to bring a claim under CL Section 12-1018(a)(2) is not
presently before the Court. Nonetheless, the principle that CL
Section 12-1018(a)(2) limits a credit grantor's collection to the
principal loan amount informs this Court's understanding of CL
Section 12-1018(b).
Second, the plain language of CL Section 12-1018(b) makes no
reference to amounts collected in excess of the principal amount
financed. The General Assembly only expressly authorized forfeiture
of "the amount of interest, fees, and charges" that are "collected
in excess of that authorized by the subtitle." As such, the amount
to be trebled under CL Section 12-1018(b) are those amounts
collected that are not authorized under CLEC.
Lastly, the Court of Appeals finds that nothing in the legislative
history indicates that the General Assembly intended for CL Section
12-1018(b) to be interpreted inconsistently with its plain meaning.
This penalty is distinctly separate from CL Section 12-1018(a)(2),
which addresses the amounts collected in excess of the principal
loan amount. CL Section 12-1018(b) provides an additional penalty
for credit grantors that knowingly violate CLEC, and, therefore,
are liable for treble the amounts that were collected in violation
of the subtitle. Accordingly, assuming Santander knowingly
collected the convenience fees alleged by Mr. Lyles in violation of
CLEC, the appropriate calculation of damages under CL Section
12-1018(b) is treble the amount of convenience fees collected.
IV. Conclusion
For the foregoing reasons, the Court of Appeals holds that CL
Section 12-1018(b) requires a credit grantor that is found to have
knowingly violated CLEC to forfeit three times the amount of
interest, fees, and charges collected in violation of the
subtitle.
The certified question of law is answered as set forth. The costs
will be divided equally.
A full-text copy of the Court's May 13, 2022 Opinion is available
at https://tinyurl.com/5n6ww6vc from Leagle.com.
SWEDISH HEALTH: Court Enters Briefing Schedule in Adan Class Suit
-----------------------------------------------------------------
In the case, ISMAHAN ADAN, individually and on behalf of all others
similarly situated, Plaintiff v. SWEDISH HEALTH SERVICES d/b/a
SWEDISH MEDICAL GROUP and PROVIDENCE HEALTH & SERVICES, Defendants,
Case No. 2:22-cv-00078-JHC (W.D. Wash.), Judge John H. Chun of the
U.S. District Court for the Western District of Washington,
Seattle, approves the parties' stipulation relating to the briefing
schedule for collective and class certification motions.
The parties, by and through their counsel, stipulate and jointly
request the Court to enter the proposed Order approving the
following briefing schedule:
a. Jan. 31, 2023: Last day for the Plaintiff to file a motion
for collective action certification;
b. Feb. 28, 2023: Last day for Defendants to file opposition
to collective action certification;
c. March 21, 2023: Last day for Plaintiff to file a reply in
support of collective action certification;
d. April 4, 2023: Proposed date for Hearing on Plaintiff's
motion for collective certification, depending on the Court's
availability;
e. 6 months after the close of any Court-authorized opt-in
period or the Court's denial of conditional certification: Deadline
for the Plaintiff to file a motion for class action certification;
f. 28 days after the Plaintiff files a motion for class
certification: The Defendants will file opposition to class action
certification;
g. 21 days after the Defendants file their opposition to class
certification: The Plaintiff will file a reply in support of class
action certification; and
h. 30 days after briefing on class certification is complete:
Proposed date for Hearing on the Plaintiff's motion for class
certification, depending on the Court's availability.
Should discovery require unanticipated Court intervention, or
otherwise be delayed despite due diligence, the parties will
discuss in good faith amendments to the above dates as may become
necessary.
Judge Chun has considered and approves the parties' stipulation. It
is so ordered.
A full-text copy of the Court's May 13, 2022 Order is available at
https://tinyurl.com/2fynn2dx from Leagle.com.
Beth E. Terrell -- bterrell@terrellmarshall.com -- Jennifer Rust
Murray -- jmurray@terrellmarshall.com -- Erika L. Nusser --
enusser@terrellmarshall.com -- Terrell Marshall Law Group PLLC, in
Seattle, Washington, Attorneys for the Plaintiff.
Carolyn H. Cottrell -- ccottrell@schneiderwallace.com -- Pro Hac
Vice, Samantha A. Smith, Pro Hac Vice, Andrew D. Weaver, Pro Hac
Vice, Schneider Wallace Cottrell Konecky LLLP, Emeryville,
California, Jordyn D. Rystrom Emmert, Pro Hac Vice, in Houston,
Texas, Attorneys for the Plaintiff.
Paula Lehmann -- paulalehmann@dwt.com -- Melissa Mordy --
missymordy@dwt.com -- Margaret Burnham -- megburnham@dwt.com --
Davis Wright Tremaine LLP, Bellevue, WA, Kathryn S. Rosen, Scott
Prange, in Seattle, Washington, Attorneys for Defendants Providence
Health & Services and Swedish Health Services.
SYNGENTA AG: 10th Cir. Reverses Summary Judgment in DeLong Suit
---------------------------------------------------------------
In the case, THE DELONG COMPANY, INC., Plaintiff-Appellant v.
SYNGENTA AG; SYNGENTA CROP PROTECTION AG; SYNGENTA CORPORATION;
SYNGENTA CROP PROTECTION, LLC; SYNGENTA BIOTECHNOLOGY, INC.;
SYNGENTA SEEDS, LLC, Defendants-Appellees, Case No. 21-3044 (10th
Cir.), Judge Harris L. Hartz of the U.S. Court of Appeals for the
Tenth Circuit reverses the district court's order granting
Syngenta's motion for summary judgment.
I. Background
In 2010, Syngenta (the name by which we will refer to the
Defendants collectively) began selling corn seeds containing the
genetically modified trait MIR 162 under the label Viptera, for
planting in spring 2011. Syngenta did not have import approval from
China for MIR 162 at the time Viptera was released, but it
represented to customers that MIR 162 would be approved by China by
the spring of 2012. Syngenta was mistaken; approval did not come
and China began rejecting shipments of U.S. corn products
containing MIR 162 in November 2013. The trait was not approved
until December 2014.
The DeLong, headquartered in Clinton, Wisconsin, is an exporter of
dried distiller grains with solubles (DDGS), a corn-based ethanol
byproduct frequently used as livestock feed. DeLong typically
receives its DDGS from ethanol producers or other suppliers and
then loads the product into containers bound for export. It has
been exporting DDGS to China since at least 2010.
Alleging that its export business was damaged when China began
rejecting its DDGS shipments in December 2013, DeLong sued Syngenta
on Oct. 11, 2017, in the U.S. District Court for the Western
District of Wisconsin. As relevant in the case, the complaint
asserted a common-law negligence claim against Syngenta, and DeLong
sought damages for trade disruption caused by Syngenta's conduct.
The suit was transferred to the U.S. District Court for the
District of Kansas as part of an ongoing multidistrict litigation
(MDL).
Syngenta raised a statute-of-limitations defense and moved for
summary judgment on that ground. The district court granted the
motion, holding that DeLong had not satisfied the applicable
Wisconsin six-year statute of limitations because it suffered
actual harm from Syngenta's negligence more than six years before
commencing suit.
DeLong appeals from this dismissal, arguing that the district court
erred in finding actual harm before October 2011 and that in any
event the limitations period was tolled by a putative class action
brought against Syngenta by a third party.
II. Discussion
DeLong filed suit on Oct. 11, 2017. To show that the suit was
untimely, Syngenta pointed to several examples of alleged actual
harm suffered by DeLong before October 2011. The evidence is
certainly suggestive. But at this stage of litigation, all
inferences must be drawn in favor of the nonmovant DeLong, and
Syngenta failed to pin down the facts so that no reasonable person
could disbelieve that DeLong suffered harm before October 2011.
The Tenth Circuit proceeds to address Syngenta's examples.
A. Preparations for Isolating MIR 162 Corn
The primary harm identified by Syngenta was the alleged cost
associated with protective steps DeLong took in arranging to deal
with the possible receipt of MIR 162 corn products. Syngenta relies
on deposition testimony of Bo DeLong, a company vice president, who
discussed the arrangements. Syngenta suggests that there must have
been costs associated with these preparations. But Mr. DeLong never
admitted that his company incurred any costs.
The Tenth Circuit thinks it is not obvious that setting aside an
area and certain equipment for MIR 162 corn required Mr. DeLong's
company to incur any equipment costs or even additional labor
expenses. Perhaps a jury could infer that there were additional
costs; but it could also decline to infer that. For whatever
reason, the counsel for Syngenta decided not to try to pin the
matter down.
Syngenta contends that the Wisconsin Supreme Court decision in
State v. Service Electric & Supply, Inc., 316 N.W.2d 390, 395 (Wis.
1982), stands for the proposition that "the need to redirect
corporate resources such as employee time constitutes a compensable
injury." But the Tenth Circuit does not read that opinion so
broadly. As it understands it, the court was recognizing an
exception to the longstanding rule that overhead expenses, such as
normal salary expenses of an employee, are not recoverable. What
was special in Service Electric was that the supervisor whose
salary was to be recovered had been assigned specifically to the
breached contract to obtain a new contractor and otherwise would
have been working on other projects that instead went undone.
Of particular relevance to the present case, the court
distinguished the decision in Walker Manufacturing Co. v. Henkel
Construction Co., 346 F.Supp. 621, 633 (N.D. Iowa 1972), with the
following parenthetical: "Company denied recovery of salaries of
three of its workers whose services were expended supervising the
replacement of a defective roof installed by the original
contractor because there was no sufficient indication at trial as
to what these employees would have been doing had they not been
working on the roof problem. The amount of time the employees spent
working on this project has not been shown as an expense solely
attributable to the breach." That description fits the record in
the present case better than Service Electric does.
B. Bo DeLong's Proposal
Syngenta also argues that Mr. DeLong admitted his company had
incurred expenses when he submitted a proposal in August 2011. The
proposal was a single-page document setting forth a number of steps
that Syngenta and others in the industry should take to keep DDGS
produced from Viptera corn from entering the export channel to
China. The steps that "the Agricultural Community should adopt"
were to mitigate possible negative effects from the introduction of
Viptera. Of particular note, the final step was for Syngenta to pay
"all costs of testing/diversion both on inbound corn and outbound
DDGS."
The Tenth Circuit finds that the proposal is forward looking.
Syngenta points to testimony by Mr. DeLong that it reads as a
concession that DeLong had already incurred expenses resulting from
Syngenta's alleged negligence. The language relied on by Syngenta
-- "additional costs that DeLong was incurring" -- did not come
from Mr. DeLong himself, but was part of a multipart complex
question. Again, if Syngenta believed this proposal reflected
ongoing MIR 162 expenses as of August 2011, its attorney could have
asked Mr. DeLong follow-up questions to specify what those expenses
were. That was not done. A rational jury could infer that there
were no such expenses.
C. Contractual Changes
Third, and finally, Syngenta argues that DeLong must have lost
money as a result of insisting before October 2011 that its
customers agree to a new contractual provision requiring them to
assume all financial risk that DDGS shipments would be rejected by
China. In support of this argument Syngenta points to an email from
one of DeLong's brokers stating that the proposed contractual
provision would prevent sales of its product as the terms would
"not be accepted by the customers." DeLong responds, however, that
there is no evidence anywhere in the record, much less before
October 2011, that it lost any customers or suffered any harm from
the revision. It contends that the brokers were simply mistaken and
their fears unfounded.
The Tenth Circuit finds that Syngenta is correct that harm does not
need to be monetary, but it has not identified any other harm that
would start the limitations period. DeLong is seeking only monetary
damages, and there appears to be no other legal interest, such as
the right to file a patent, that has been lost.
III. Conclusion
The Tenth Circuit, exercising jurisdiction under 28 U.S.C. Section
1291, reverses. In its view there is a genuine issue of fact
concerning when DeLong first suffered harm from the use of MIR 162.
The Tenth Circuit need not consider whether there was any tolling
by the class action. The suit is remanded for further proceedings
consistent with the Order.
A full-text copy of the Court's May 13, 2022 Order & Judgment is
available at https://tinyurl.com/xactrzy5 from Leagle.com.
TEAM INDUSTRIAL: Settlement Deal Reached in California Class Suit
-----------------------------------------------------------------
Team, Inc. disclosed in its Form 10-Q Report for the quarterly
period ended March 31, 2022, filed with the Securities and Exchange
Commission on May 11, 2022, that in March 2022, parties in a class
action labor case filed in June 24, 2019 against Team Industrial
Services, Inc. in the Superior Court for the County of Los Angeles,
California, have entered into a formal settlement agreement and
agreed to remand the case to the Los Angeles Superior Court for
approval of the settlement.
Plaintiff Michael Thai asserts claims for alleged wage and hour
violations under the California Labor Code (for alleged unpaid
wages, failure to provide meal and rest breaks, and derivative
related claims). It also asserts a putative class claim for
violation of the Fair Credit Reporting Act. Both cases were stayed
shortly after filing to allow the parties to mediate the claims.
In April 16, 2021, Team Industrial Services, Inc. moved both the
Thai action to the United States District Court for the Central
District of California. Plaintiff's motion for remand was denied,
and these matters remain in federal court.
In November 2021, the parties agreed in principle to settle all
claims in this litigation and all parties entered into a formal
settlement agreement in March 2022. As part of the settlement
agreement, the parties have agreed to remand the case to the Los
Angeles Superior Court for approval of the settlement. All class
action settlements of this nature are subject to approval of the
court.
Team Inc. is a global provider of integrated, digitally-enabled
asset performance assurance and optimization solutions.
UNKNOWN BURGESS: Curtis Loses Class Certification Bid
------------------------------------------------------
In the class action lawsuit captioned as WILLIE CURTIS v. UNKNOWN
BURGESS et al., Case No. 1:22-cv-00163-RSK (W.D. Mich.), the Hon.
Judge Ray Kent entered an order denying the Plaintiff's motion for
class certification or consolidation.
The Plaintiff has filed a motion for class certification or
alternatively for consolidation with Ashley v. Burgess (2022),
which he claims asserts the same issue.
The Plaintiff requests class certification seeking to represent the
interests of other prisoners who are enrolled in the START program
at the Oaks Correctional Facility (ECF). The Plaintiff's complaint
asserts that he was denied the ability to attend Protestant
Christian religious services because of his enrollment in the START
program.
The purposes of class action suits are judicial economy and the
opportunity to bring claims that would not be brought absent the
class action because it might not be economically feasible to bring
them as individual claims.
A copy of the Court's order dated May 10, 2022 is available from
PacerMonitor.com at https://bit.ly/3x6RR2z at no extra charge.[CC]
VASCULAR ASSOCIATES: Conditional Cert of Collective Action Sought
-----------------------------------------------------------------
In the class action lawsuit captioned as NICOLE BUCKLEY,
Individually and on Behalf of All Others Similarly Situated, v.
VASCULAR ASSOCIATES OF MICHIGAN, PC, JOHN ILJAS and MAZEN BAZZI,
Case No. 5:21-cv-12539-JEL-KGA (E.D. Mich.), the Plaintiff asks the
Court to enter an order:
A. Conditionally certifying this case as a collective action;
B. Approving the Plaintiff's proposed Notice and Consent to
Join and proposed method of distribution including mailing
and emailing;
C. Approving the form and content of Exhibits 1–5;
D. Directing the Defendants to produce the requested contact
information of each putative collective member in an
electronically importable and malleable format, such as
Excel, within seven days after this Court's Order is
entered;
The Plaintiff brought this suit individually and on behalf of
certain former and current Medical Assistants for the Defendants,
to recover overtime wages and other damages pursuant to the Fair
Labor Standards Act ("FLSA"), among other claims.
A copy of the Plaintiff's motion dated May 10, 2022 is available
from PacerMonitor.com at https://bit.ly/39UIPO9 at no extra
charge.[CC]
The Plaintiff is represented by:
Josh Sanford, Esq.
SANFORD LAW FIRM, PLLC
Kirkpatrick Plaza
10800 Financial Centre Parkway, Suite 510
Little Rock, AR 72211
Telephone: (800) 615-4946
Facsimile: (888) 787-2040
E-mail: josh@sanfordlawfirm.com
The Defendant is represented by:
David F. Greco, Esq.
Ertis Tereziu, Esq.
Northwestern Highway, Suite 425
Farmington Hills, MI 48334
Telephone: (248) 865-0001
E-mail: dgreco@gmgmklaw.com
eterezui@gmgmklaw.com
VENTURA COUNTY, CA: White Seeks to Certify Class Action
-------------------------------------------------------
In the class action lawsuit captioned as DAVID WHITE, individually,
and on behalf of all others similarly situated, v.
VENTURA COUNTY CREDIT UNION and DOES 1 through 5, inclusive, Case
No. 2:21-cv-05960-DSF-GJS (C.D. Cal.), the Plaintiff asks the Court
to enter an order certifying this action as a class action against
the Defendant Ventura County Credit Union.
The Plaintiff also seeks an order that the prerequisites and
requirements for class certification under Rules 23(a) and 23(b)(3)
of the Federal Rules of Civil Procedure have been satisfied, in
that:
1. The number of Class members is so numerous that joinder of
all class members thereof is impracticable;
2. Common questions of law and fact are common among the
proposed Classes;
3. The proposed class representative's claims are typical of
those of the Classes;
4. The proposed class representative will fairly and
adequately represent the interests of each Class;
5. The law firm of McCune Wright Arevalo, LLP, will fairly
and adequately represent each of the proposed Classes as
Class Counsel;
6. The questions of law and fact common to each class member
predominate over any questions affecting only individual
class members; and
7. A class action is superior to other available methods for
the fair and efficient adjudication of the controversy.
Ventura County Credit Union is a federally insured financial
institution offering great rates and friendly service in Ventura
County, California.
A copy of the Court's order dated May 10, 2022 is available from
PacerMonitor.com at https://bit.ly/3lIklKG at no extra charge.[CC]
The Plaintiff is represented by:
Richard D. McCune, Esq.
David C. Wright, Esq.
McCUNE WRIGHT AREVALO, LLP
3281 East Guasti Road, Suite 100
Ontario, CA 91761
Telephone: (909) 557-1250
Facsimile: (909) 557-1275
E-mail: rdm@mccunewright.com
dcw@mccunewright.com
- and -
Emily J. Kirk, Esq.
McCUNE WRIGHT AREVALO, LLP
231 N. Main Street, Suite 20
Edwardsville, IL 62025
Telephone: (618) 307-6116
Facsimile: (618) 307-6161
E-mail: ejk@mccunewright.com
VI-JON LLC: Discovery Responses in Macormic Suit Partly Compelled
-----------------------------------------------------------------
In the case, MATTHEW MACORMIC, ERIC HOWARD, CONNOR HENRICHS, And
JOYCE FRYER-KAUFFMAN, individually and on behalf of others
similarly situated, Plaintiffs v. VI-JON, LLC, Defendant, Case No.
4:20CV1267 HEA (E.D. Mo.), Judge Henry Edward Autrey of the U.S.
District Court for the Eastern District of Missouri, Eastern
Division, grants in part and denies in part the Plaintiffs' Motion
to Compel Discovery Responses.
I. Background
The Plaintiffs bring the action against the Defendant as a consumer
protection putative class action. They allege the Defendant's hand
sanitizing products are advertised and labelled in a false and
misleading way, specifically the Defendant's claim that the
Products are able to kill 99.99% of germs. The Plaintiffs allege
violation of Missouri's Merchandising Practices Act, breach of
express warranty, breach of implied warranty, and unjust
enrichment.
The Defendant's Motion to Dismiss was denied by the Court on Aug.
6, 2021, and parties then engaged in discovery. The Plaintiffs now
bring forth their Motion to Compel to resolve discovery issues
between parties.
II. Discussion
The Plaintiffs request discovery consistent with the definition of
"Products" set forth in the Complaint, nationwide sales
information, and substantial response to each of the Plaintiffs'
interrogatories. The Plaintiffs also request production of
documents and provide testimony in response to Document Request No.
9 and 30(b)(6) Topic No. 18.
A. Products Scope
The Defendant objects to production of information on its products
beyond those that the Plaintiffs purchased, arguing that the
Plaintiffs lack standing to sue on these other unpurchased products
and thus they should be excluded from discovery. The Plaintiffs
argue that, under relevant precedence, they do have standing on
unpurchased products. They argue these other products are covered
under the scope of the Products as defined in the Complaint, and
they are substantially similar to the products that they purchased.
As the Plaintiffs' discovery request is relevant and proportional
to their claim, Judge Autrey finds that the Plaintiffs are entitled
to evidence of the Defendant's other hand sanitizer products.
B. Nationwide Sales Information
The Plaintiffs seek information regarding the Defendant's
nationwide sales; however, the Defendant has only agreed to
information related to Missouri sales, with nationwide sales
information contingent upon the certification of a nationwide
class. Prior to class certification, the Defendant argues that
nationwide sales information is not proportional to the needs of
the case and is premature. While the Defendant alleges that as the
Plaintiffs will soon drop the nationwide allegations, the Motion to
Compel nationwide sales information in this regard is moot. The
Plaintiffs disagree, arguing that until the Plaintiffs file a
motion to limit the nationwide class, the Defendant should be
required to produce nationwide information.
Judge Autrey finds that the Defendant's allegation that the
Plaintiffs' request is not proportional to the claim lacks further
support in the Defendant's response. The Court has previously
interpreted Rule 26 to decree that boilerplate objections as
insufficient to exempt production in discovery. In general, the
scope of discovery under Rule 26 is extremely broad. As such, Judge
Autrey overrules the Defendant's objection and compels it to
produce nationwide sales information.
C. Substantial Replies to Interrogatories
The Defendant has relied on Fed. R. Civ. P. 33(d) in response to
the Plaintiffs' interrogatories and has produced thousands of
documents for the Plaintiffs' interrogatories, and thousands more
since the filing of this Motion. The Plaintiffs seek to compel the
Defendant to substantially respond to the interrogatories due to
alleged improper reliance and execution of Rule 33(d). However, the
purpose of Rule 33(d) is to shift the burden of perusing documents
from the producing party to the requesting party. The Defendant has
responded with documents that clearly correspond to the
interrogatories and has satisfied the requirements of Rule 33(d).
D. Document Request No. 9 and 30(b)(6) Topic No. 18
The Plaintiffs request production of information related to
"lawsuits, administrative actions, complaints, consumer inquiries,
and other claims that have been filed, made, or threatened by any
Person or entity relating to the Product Representations, including
any settlements attempted or reached to resolve such matters."
While much of this information, though not all, is publicly
available information, Judge Autrey holds that the Defendant is in
the best position to identify and produce this information. The
Plaintiffs have requested information on lawsuits related to
representations of the products at issue, a relevant request. Their
request is not overly broad. Judge Autrey compels the Defendant to
respond to Document Request No. 9 and 30(b)(6) Topic No. 18.
III. Conclusion
For these reasons, the Plaintiffs' Motion to Compel Discovery
Responses granted in part and denied in part.
A full-text copy of the Court's May 13, 2022 Opinion, Memorandum &
Order is available at https://tinyurl.com/3mwkmzwx from
Leagle.com.
VOYAGER DIGITAL: Cassidy Loses Class Certification Bid
------------------------------------------------------
In the class action lawsuit captioned as MARK CASSIDY v. VOYAGER
DIGITAL LTD, et al., Case No. 1:21-cv-24441-CMA (S.D. Fla.), the
Hon. Judge Cecilia M. Altonaga entered an order denying without
prejudice Mark Cassidy's motion to certify a Liability Issue Only
Class Action Against Voyager Digital.
The Plaintiff shall have an opportunity to file a renewed motion to
certify a liability class if he prevails against the Defendants'
impending motion.
A copy of the Court's order dated May 10, 2022 is available from
PacerMonitor.com at https://bit.ly/3sVXBur at no extra charge.[CC]
WALMART INC: Ct. Amends Briefing Schedule in Powell Class Suit
--------------------------------------------------------------
In the class action lawsuit captioned as DEARL POWELL, CHRISTINA
GAST, and ELIJHA GONZALEZ, as individuals and on behalf of all
others similarly situated, v. WALMART, INC.; WAL-MART ASSOCIATES,
INC.; WAL-MART STORES, INC.; and DOES 1 through 50, inclusive, Case
No. 3:20-cv-02412-JLS-MSB (S.D. Cal.), the Hon. Judge Jannis L.
Sammartino entered an order amending the briefing schedule on
Plaintiffs' motion for class certification as follows:
-- The Defendants shall file a response to the motion on or
before July 21, 2022, and Plaintiffs may MAY a reply in
support of the Motion, on or before July 28, 2022.
-- The Court continues the hearing on this matter to 1:30 p.m.
on August 11, 2022.
-- The Court amends the briefing schedule on Defendants'
Motion for Judgment on the Pleadings as follows: The
Plaintiffs shall file a response to the motion on or before
July 21, 2022, and Defendants may file a reply in support
of the Motion, on or before July 28, 2022.
-- The Court continues continues hearing on this matter to
1:30 p.m. on August 11, 2022.
Walmart is an American multinational retail corporation that
operates a chain of hypermarkets, discount department stores, and
grocery stores from the United States.
A copy of the Court's order dated May 4, 2022 is available from
PacerMonitor.com at https://bit.ly/3lB5PE8 at no extra charge.[CC]
WOLVERINE WORLD WIDE: Faces Product Liability Suits in MI Court
---------------------------------------------------------------
Wolverine World Wide, Inc. disclosed in its Form 10-Q Report for
the quarterly period ended April 2, 2022, filed with the Securities
and Exchange Commission on May 12, 2022, that beginning in late
2017, three putative class action lawsuits were filed against the
company that raise a variety of claims, including claims related to
property, remediation, and human health effects.
The three putative class action lawsuits were subsequently refiled
in the U.S. District Court for the Western District of Michigan as
a single consolidated putative class action lawsuit with the 3M
Company named as a co-defendant in the individual lawsuits and
consolidated putative class action lawsuit.
Wolverine World Wide, Inc. is a designer, marketer and licensor of
branded footwear, apparel and accessories based in Michigan.
ZEETO LLC: June 6 Extension to File Class Cert. Bid Sought
----------------------------------------------------------
In the class action lawsuit captioned as EDWIN WILLIAMS,
individually and on behalf of all others similarly situated,
Plaintiff, v. ZEETO, LLC, a Delaware limited liability company,
Case No. 3:21-cv-01646-L-BLM (S.D. Cal.), the Plaintiff moves for
an extension of time to move for class certification, up to and
including June 6, 2022.
The Plaintiff filed the instant lawsuit on September 20, 2021. On
December 10, 2021, the Parties submitted a Joint Discovery Plan,
setting forth November 11, 2022, as the proposed deadline to move
for class certification.
On December 20, 2021, the Parties attended an Early Neutral
Evaluation conference before Magistrate Judge Barbara Lynn Major.
A copy of the Court's order dated May 6, 2022 is available from
PacerMonitor.com at https://bit.ly/3aiupHJ at no extra charge.[CC]
The Plaintiff is represented by:
Michael Robert Lozeau, Esq.
LOZEAU DRURY LLP
1939 Harrison Srtreet, Suite 150
Oakland, CA 94612
Telephone: (510) 836-4200
E-mail: michael@lozeaudrury.com
- and -
Rory Pendergast, Esq.
THE PENDERGAST LAW FIRM, PC
3019 Polk Avenue
San Diego, CA 92104
Telephone: (619) 344-8699
Facsimile: (619) 344-8701
E-mail: Rory@rorylaw.com
- and -
Stephen A. Klein, Esq.
WOODROW & PELUSO, LLC
3900 East Mexico Avenue, Suite 300
Denver, CO 80210
Telephone: (720) 907-4654
Facsimile: (303) 927-0809
E-mail: sklein@woodrowpeluso.com
*********
S U B S C R I P T I O N I N F O R M A T I O N
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