/raid1/www/Hosts/bankrupt/CAR_Public/220609.mbx
C L A S S A C T I O N R E P O R T E R
Thursday, June 9, 2022, Vol. 24, No. 109
Headlines
9F INC: Faces Consolidated Shareholder Suit in New York Court
9F INC: Faces Holland Shareholder Suit in New Jersey Court
ACOSTA TRACTORS: Cook Suit Seeks Damages for City Gas Line Break
AURORA HEALTH: E.D. Wisconsin Narrows Claims in Woznicki ERISA Suit
BERNALILLO COUNTY, NM: Final Judgment Entered in Esquer v. BCMDC
BP EXPLORATION: Wins Bid for Summary Judgment in Dailey BELO Suit
CERTAIN UNDERWRITERS: 11th Cir. Affirms Town Kitchen Suit Dismissal
CHICK-FIL-A INC: Court Removes Docket No. 24-1 From Pittman Suit
CHINACACHE INTERNATIONAL: Settles Likas Shareholder Suit in CA
CHOWNOW INC: Quezada Files ADA Suit in S.D. New York
COMPANHIA ENERGETICA: Faces Suits Over Hydroelectric Plant
COMPANHIA ENERGETICA: Residential Tariff Dispute Ongoing
COMVITA USA: Rodriguez Files ADA Suit in E.D. New York
CUSTOM CARE LOGISTICS: Cotton Files Suit in Cal. Super. Ct.
DEKALB COUNTY, GA: $531K in Attys.' Fees & Costs Awarded in TH Suit
DOMINION VOTING: 10th Cir. Affirms Dismissal of O'Rourke Class Suit
EASTERN ACCOUNT SYSTEM: Zigelman Files FDCPA Suit in E.D. New York
EMC INSURANCE: Court Reverses Denial of Bid to Dismiss Meade Suit
ENTERGY CORP: 5th Cir. Affirms in Part Remand Order in Stewart Suit
FRONTLINE ASSET: Grinblat Files FDCPA Suit in D. New Jersey
GOLDWATER BANK: Feins Suit Removed to D. Arizona
GREENSKY MGMT: Loses Bid for Judgment on Pleadings in Wright Suit
HARRIS & HARRIS: Adler Files FDCPA Suit in E.D. New York
I & S FLOORS: Faces Arevalo Wage-and-Hour Suit in New York
IDAHOAN FOODS: Martinez Files ADA Suit in E.D. New York
LEUS CALIFORNIA: Quezada Files ADA Suit in S.D. New York
LOOP INDUSTRIES: Faces Bazzini Shareholder Suit in NY Court
LOOP INDUSTRIES: Faces Shareholder Suit in Quebec Court
LOOP INDUSTRIES: Faces Tremblay Shareholder Suit in NY Court
LSPACE AMERICA: Quezada Files ADA Suit in S.D. New York
MADSON LLC: Quezada Files ADA Suit in S.D. New York
MERCANTILE ADJUSTMENT: Strasser Files FDCPA Suit in E.D. New York
MIDDLEBURY COLLEGE: Bid to Toss Count 1 in Mooers Suit Partly OK'd
MLD MORTGAGE: Joint Bid to Stay Court's Judgment in Dye Granted
MULLEN AUTOMOTIVE: Faces Schaub Shareholder Suit in CA Court
NEWQUEST LLC: FLSA Class Settlement in Lowe Suit Wins Approval
NVIDIA CORPORATION: Shareholder Suit Dismissed, Appeal Lodged
OPTUMSERVE HEALTH: O'Brien Files Suit Over Unlawful Labor Practices
ORANGE COUNTY, CA: Ahlman, et al., Seek to Certify Class
PETRA LIVING: Smith Files Suit in Cal. Super. Ct.
ROTMANS FURNITURE: Settlement Reached in LaChapelle Labor Suit
ROTMANS FURNITURE: Settles Employees' Labor Suit
RUTH'S HOSPITALITY: To Settle Castillo Labor Suit
RUTH'S HOSPITALITY: To Settle Guerrero Labor Suit
RUTH'S HOSPITALITY: To Settle Patterson Labor Suit
RYDER INTEGRATED: Williams Files Suit in N.D. Illinois
SELECT EMPLOYMENT: Ledesma Suit Removed to C.D. California
SMARTSHEET INC: Laredo Files Suit in Mass. Super. Ct.
SUPERVALU INC: Harris Files Suit in N.D. Illinois
TARGET CORPORATION: Final OK of Class Action Settlement Sought
TTEC SERVICES: Court Names Interim Co-Lead Counsel in Beasley Suit
UNITED STATES: Appeals Preliminary Injunction Ruling in Doster Suit
YAMAGUCHI & FRIENDS: Faces Abe Wage-and-Hour Suit in E.D.N.Y.
*********
9F INC: Faces Consolidated Shareholder Suit in New York Court
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9F Inc. disclosed in its Form 20-F Report for the fiscal year ended
December 31, 2021, filed with the Securities and Exchange
Commission on May 17, 2022, that beginning in September 2020, the
company and certain of its current and former officers, directors
and others were named as defendants in various putative securities
class actions captioned "In re 9F Inc. Securities Litigation,"
Index No. 654654/2020 (Supreme Court of the State of New York
County of New York, Amended Complaint filed Dec. 7, 2020).
Said actions alleges that the named defendants made misstatements
and omissions in connection with public filings and disclosures in
violation of the federal securities laws. Briefings on the motions
to dismiss were completed in April 2021 and decisions on the
motions are currently pending.
9F Inc. is a holding company incorporated in the Cayman Islands
with no material operations of its own but conducts a major part of
its operations through its China subsidiaries.
9F INC: Faces Holland Shareholder Suit in New Jersey Court
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9F Inc. disclosed in its Form 20-F Report for the fiscal year ended
December 31, 2021, filed with the Securities and Exchange
Commission on May 17, 2022, that beginning in September 2020, the
company and certain of its current and former officers, directors
and others were named as defendants in various putative securities
class actions captioned "Holland v. 9F Inc. et al.," No.
2:21-cv-00948 (United States District Court for the District of New
Jersey, filed January 20, 2021).
Said actions alleges that the named defendants made misstatements
and omissions in connection with public filings and disclosures in
violation of the federal securities laws. Briefings on the motions
to dismiss were completed in April 2021 and decisions on the
motions are currently pending.
9F Inc. is a holding company incorporated in the Cayman Islands
with no material operations of its own but conducts a major part of
its operations through its China subsidiaries.
ACOSTA TRACTORS: Cook Suit Seeks Damages for City Gas Line Break
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THE COOK AND THE CORK, INC., on behalf of itself and all others
similarly situated, Plaintiff v. ACOSTA TRACTORS, INC., Defendant,
Case No. CACE-22-007823 (Fla. Cir., 17th Judicial, Broward Cty.,
May 29, 2022) arises from the Defendant's alleged negligent conduct
of hitting a city gas line in Coral Springs, depriving at least 120
customers, mostly businesses, of gas service during the month of
May 2022, and causing extensive economic damages.
According to the complaint, without exercising even the most basic
skill or care, Acosta Tractors materially breached its duty of care
to Plaintiff and the class in one or more of the following ways:
(a) it did not use appropriate equipment or excavation techniques
for checking the location of underground utilities; (b) it did not
perform the excavation in a careful and prudent manner, based on
accepted engineering and construction practices; (c) it failed to
safely confirm and reconfirm, via proper pot holing techniques, the
location of the underground gas line which served the City of Coral
Springs and surrounding areas; and (g) it failed to avoid
disturbing that gas line and proceeded to break into that gas line,
foreseeably causing the Gas Line Break and disruption to several
businesses of critically needed gas service.
The Cook and The Cork is a restaurant operator based in Florida.
Acosta Tractors, Inc. is an engineering contracting firm.[BN]
The Plaintiff is represented by:
Adam M. Moskowitz, Esq.
Joseph M. Kaye, Esq.
THE MOSKOWITZ LAW FIRM, PLLC
2 Alhambra Plaza Suite 601
Coral Gables, FL 33134
Telephone: (305) 740-1423
E-mail: adam@moskowitz-law.com
joseph@moskowitz-law.com
- and -
William R. Scherer, Esq.
CONRAD & SCHERER, LLP
633 South Federal Highway
Fort Lauderdale, FL 33301
Telephone: (954) 462-5500
Facsimile: (954) 463-9244
E-mail: wscherer@conradscherer.com
AURORA HEALTH: E.D. Wisconsin Narrows Claims in Woznicki ERISA Suit
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In the case, LINDA A. WOZNICKI, Plaintiff v. AURORA HEALTH CARE
INC., THE BOARD OF DIRECTORS OF AURORA HEALTH CARE INC.,
Defendants, Case No. 20-cv-1246-bhl (E.D. Wis.), Judge Brett H.
Ludwig of the U.S. District Court for the Eastern District of
Wisconsin grants in part and denies in part the Defendants' motion
to dismiss.
I. Introduction
In the case, Plaintiff Woznicki, a participant in Aurora's defined
contribution plan, claims that Aurora, the Board of Directors of
Aurora, and dozens of unnamed defendants breached their fiduciary
duties to plan participants when they allowed those participants to
suffer exorbitant recordkeeping, managed account service, and
investment management fees. Her class action complaint alleges
violations of the Employee Retirement Income Security Act of 1974
(ERISA) on behalf of herself and thousands of former and current
plan participants. The Defendants have moved to dismiss for failure
to state a claim.
II. Background
From June 2012 until July 31, 2020, Plaintiff Woznicki worked for
Aurora as a project manager. As an Aurora employee, Woznicki was
one of over 36,000 participants in Aurora's Internal Revenue Code
Section 403(b) defined contribution retirement plan, which managed
over $3.5 billion in assets. This kind of plan is underwritten by
participants' voluntary contributions, which are then matched by
the employer and invested in various funds, where, ideally, they
accrue over time.
To effectuate smooth administration, defined contribution
retirement plans rely on third-party service providers often called
"recordkeepers." In the case, from 2014 to 2019, Transamerica
Retirement Solutions served as the Aurora Plan's recordkeeper and
provided recordkeeping and related administrative (RK&A) services
as well as certain investment-related services. In exchange for
these services, participants paid a graduated flat annual RK&A fee
of $10, $30, or $65 based on their account balances.
Defined contribution retirement plans generally offer participants
a menu of investment options. During the relevant class period, the
Aurora Plan's investment options included a mix of 30 mutual funds,
dozens of annuity contracts, and self-directed brokerage accounts.
The selected share classes within the mutual funds had expense
ratios ranging from .02% to 1.25%.
The Aurora Plan also offered managed account services through
Portfolio Xpress, Managed Account (2014-2017), and Managed Advice
(2017-2019). (Id.) All three were elective, individual services
that charged a fee to invest participants' account balances into a
portfolio of preselected investment options. Portfolio express
charged a .03% fee, Managed Advice charged a .25% fee, and Managed
Account charged either an unknown or no fee.
In 2020, Aurora merged with Advocate Health Care Network to form
Advocate Aurora Health. Following this, Empower Retirement replaced
Transamerica as recordkeeper of the now-consolidated plans.
III. Analysis
Ms. Woznicki alleges violations of the ERISA fiduciary duties of
prudence and loyalty and duties to monitor and disclose. At this
stage, the dispute mainly centers on the duty of prudence claim.
Woznicki argues that the Defendants breached that duty when they
failed to offer participants the best share classes in the Aurora
Plan's mutual funds and looked the other way as participants paid
excessive RK&A and managed account service fees. While the parties
treated each of these sets of allegations as standalone claims for
breach of the duty of prudence, the real question at this stage is
whether the cumulative weight of the allegations plausibly alleges
imprudence.
A. Ms. Woznicki Has Stated a Claim for Breach of the Duty of
Prudence.
Considering the totality of the competent evidence Woznicki has
offered, and drawing all reasonable inferences in her favor, the
Court finds that she has plausibly alleged a breach of the
fiduciary duty of prudence. Defendants' motion to dismiss that
claim must therefore be denied
Considering the totality of the competent evidence Woznicki has
offered, and drawing all reasonable inferences in her favor, Judge
Ludwig finds that she has plausibly alleged a breach of the
fiduciary duty of prudence. He finds that (i) the allegations
support a reasonable inference that the Defendants breached their
fiduciary duty by permitting Aurora Plan participants to pay for
services that could have been offered for free; and (ii) there are
sufficient allegations to plausibly suggest that reflects an
imprudent process; (iii) the turnover rate of the Aurora Plan's
mutual funds is no absolute defense at the motion to dismiss stage.
The Defendants' motion to dismiss that claim must therefore be
denied.
B. Ms. Woznicki Has Stated a Claim for Breach of the Duty to
Monitor Other Fiduciaries.
The parties agree that Woznicki's failure to monitor claims is
derivative of her breach of fiduciary duty claims. Because her
breach of the duty of prudence claim survives, so too must her
claim that the Defendants breached their duty to monitor other
fiduciaries.
C. Ms. Woznicki Has Not Stated a Breach of Duty of Loyalty Claim.
Ms. Woznicki's complaint treats prudence and loyalty as coextensive
duties. In the Seventh Circuit, though, a plaintiff only states a
claim for breach of the duty of loyalty if she includes allegations
of self-dealing, citing See Martin v. CareerBuilder, LLC, No.
19-cv-6463, 2020 WL 3578022, at *6 (N.D. Ill. July 1, 2020);
Daugherty v. Univ. of Chicago, No. 17-C-3736, 2017 WL 4227942, at
*9 (N.D. Ill. Sept. 22, 2017). The Plaintiff's complaint contains
no such allegations, so her claim for breach of the duty of loyalty
must be dismissed.
D. Ms. Woznicki Has Not Stated a Claim for Breach of the Duty to
Disclose.
Ms. Woznicki alleges that the Defendants' failure to disclose
revenue sharing rates and managed account service fees prevented
Aurora Plan participants from making sound and informed investment
decisions. C.F.R. Section 2550.404a-5 requires plan fiduciaries to
make certain public disclosures. The fiduciary satisfies this
requirement if it complies with either Section 2550.404a-5(a) or
Sections 2550.404a-5(c)-(d). Woznicki does not dispute that the
Defendants' disclosures complied with Sections 2550.404a-5(c)-(d).
She merely claims a violation of paragraph (a). But a fiduciary who
complies with paragraphs (c) and (d) cannot violate paragraph (a),
so Woznicki has no claim.
IV. Conclusion
For the foregoing reasons, Judge Ludwig grants in part and denies
in part the Defendants' motion to dismiss. The motion is granted
with respect to the breach of the duty of loyalty and failure to
disclose claims. The motion is denied with respect to the breach of
the duty of prudence and failure to monitor claims.
A full-text copy of the Court's May 27, 2022 Order is available at
https://tinyurl.com/ywhyju5h from Leagle.com.
BERNALILLO COUNTY, NM: Final Judgment Entered in Esquer v. BCMDC
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Judge James O. Browning of the U.S. District Court for the District
of New Mexico enters Final Judgment in the case, MARKOS ESQUER,
JOHN WITHERS and DANIEL TRUJILLO, Plaintiffs v. FNU RICHARDSON, in
his official and unofficial capacities, Defendants, Case No. CIV
21-0657 JB/GBW (D.N.M.).
I. Background
The matter comes before the Court on the Human Rights Complaint
Civil Rights Complaint U.S.C. Title Section 1983, filed July 16,
2021. Plaintiffs Markos Esquer, John Withers, and Daniel Trujillo,
acting pro se, filed the Complaint on July 16, 2021. When the
Plaintiffs filed the Complaint, they were incarcerated at the
Bernalillo County Metropolitan Detention Center ("BCMDC").
The Complaint states:
Nature of Action
6) Article 5 UDHR 1948[1] — No one will be subjected
to torture, or to cruel, inhuman, or degrading treatment or
punishment.
7) BCMDC leadership mismanages coordination of staff
resulting in gross cruel, inhuman, degrading treatment of
inmates[.]
Cause of Action
8) Every weekend BCMDC locks down entire facility and
runs on skeleton crew.
9) Upon information and belief, reason for lockdowns is
due to entitled senior staff believe they are entitled to leisure
joint activities to promote camaraderie by having barbeques and
'get togethers' called `choir practice' where they engage in
activities drinking beer smoking cigars and fantasy football, etc.
10) Upon information and belief, skeleton crews that
are tasked with running the facility are composed of subordinate
staff with less time.
The Plaintiffs allege that, for years, inmates have been submitting
grievances, but grievance officers stop the grievances "dead in
their tracks," without any proof produced to the inmates. The
Plaintiffs seek a jury trial, and relief in the form of an
independent monitor maintaining proper order of BCMDC, proof of
every lockdown notifying inmate population, and damages.
On May 13, 2022, Esquer filed a document stating: "Complainant
prays the court will dismiss this case." Motion to Dismiss, filed
May 13, 2022. The Court construes the document as a request for
voluntary dismissal under rule 41(a)(2) of the Federal Rules of
Civil Procedure and will grant Esquer's request. The Court will
dismiss without prejudice all of Esquer's claims.
When the Plaintiffs filed the Complaint, the Plaintiffs did not pay
the filing fee or submit an application to proceed in forma
pauperis. On July 19, 2021, the Honorable Gregory B. Wormuth, U.S.
Magistrate Judge for the U.S. District Court for the District of
New Mexico, entered an Order to Cure Deficiency directing the
Plaintiffs either to pay the $402 filing fee or submit an
application to proceed in forma pauperis within 30 days.
The Cure Order notifies the Plaintiffs that, if they fail to cure
the deficiency, the Court could dismiss the Complaint without
further notice. It informs the Plaintiffs that, "if they elect not
to pay the filing fee and, instead, to proceed in forma pauperis,
each Plaintiff must submit an Application to Proceed in District
Court Without Prepaying Fees or Costs, signed under penalty of
perjury by that Plaintiff."
On Aug. 16, 2021, Esquer filed an Application to Proceed in
District Court Without Prepaying Fees or Costs, filed Aug. 16,
2021. Withers and Trujillo have not paid the filing fee or
submitted applications to proceed in forma pauperis.
II. Discussion
Judge Browning will dismiss Withers and Trujillo's claims pursuant
to rule 41(b) for not complying with Magistrate Judge Wormuth's
Order, for not complying with 28 U.S.C. Section 1914 and 1915, and
for not prosecuting this proceeding.
The record also reflects that mailings to Trujillo were returned as
undeliverable and indicate that he has been released from custody.
The Court's research indicates that BDMDC released Trujillo from
custody around October 2021. It appears that Trujillo has been
transferred or released from custody without advising the Court of
his new address, as D.N.M. LR-Civ. 83.6 requires, thus severing
contact with the Court.
Pro se litigants must follow the federal rules of procedure and
simple, nonburdensome local rules. Judge Browning will, therefore,
dismiss Trujillo's claims without prejudice pursuant to rule 41(b)
for not complying with the Court's orders and for not prosecuting
this proceeding.
Also pending before the Court are: (i) Esquer's Motion to Enjoin
Two (2) Inmates as Plaintiffs/Injunction to Stop Weekend Lockdowns,
filed October 12, 2021 (Doc. 6)("Motion to Enjoin"); (ii) non-party
Ledonta Jenkins' Motion for Leave to Proceed In Forma Pauperis,
filed October 12, 2021 (Doc. 7); and (iii) non-party Jese
Villagrama's Motion for Leave to Proceed In Forma Pauperis, filed
October 12, 2021 (Doc. 8). In light of the Complaint's dismissal,
the Court will deny the pending Motions.
In the Motion to Enjoin, Esquer seeks to "enjoin" two inmates as
plaintiffs "in order to meet criteria required for a class action
civil suit." "The right to proceed pro se in a civil action in
federal court is guaranteed by 28 U.S.C. Section 1654. Because pro
se means to appear for one's self, however, a person may not appear
on another person's behalf in the other's cause; rather, a person
must be litigating an interest personal to him."
In Fymbo v. State Farm Fire and Casualty Co., 213 F.3d 1320 (10th
Cir. 2000), the Tenth Circuit concludes that a litigant may bring
his own claims to federal court without counsel, but not the claims
of others because "the competence of a layman is 'clearly too
limited to allow him to risk the rights of others.'"
Plaintiff Esquer may not proceed in federal court on behalf of
other inmates and may not maintain a class action acting pro se
Judge Browning holds. She will, therefore, deny the Motion to
Enjoin. She will also deny the Motion for Leave to Proceed In Forma
Pauperis filed on behalf of non-party LeDonta Jenkins, and the
Motion for Leave to Proceed In Forma Pauperis filed on behalf of
non-party Jese Villagrama as moot.
III. Conclusion
Judge Browning (i) dismisses without prejudice the Human Rights
Complaint Civil Rights Complaint U.S.C. Title Section 1983, filed
July 16, 2021; (ii) denies Plaintiff Esquer's Motion to Enjoin Two
(2) Inmates as Plaintiffs/Injunction to Stop Weekend Lockdowns,
filed Oct. 12, 2021; (iii) denied non-party Ledonta Jenkins' Motion
for Leave to Proceed In Forma Pauperis, filed Oct. 12, 2021; (iv)
denies non-party Jese Villagrama's Motion for Leave to Proceed In
Forma Pauperis, filed Oct. 12, 2021; and (v) enters Final
Judgment.
A full-text copy of the Court's May 27, 2022 Memorandum Opinion &
Order is available at https://tinyurl.com/36r57njh from
Leagle.com.
BP EXPLORATION: Wins Bid for Summary Judgment in Dailey BELO Suit
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In the case, REGINALD DAILEY, Plaintiff v. BP EXPLORATION &
PRODUCTION INC., et al., Defendants, Civil Action No.
1:21-CV-00360-KD-MU-C (S.D. Ala.), Judge Kristi K. DuBose of the
U.S. District Court for the Southern District of Alabama, Southern
Division, grants the Motion for Summary Judgment filed by
Defendants BP Exploration & Production Inc. and BP America
Production Co.
I. Background
Plaintiff Dailey was employed by BP as a truck driver in 2011
during the Deepwater Horizon oil spill cleanup. His duties included
cleaning, loading, and unloading tanks. He filed a Notice of Intent
to Sue with the Deepwater Horizon Medical Benefits Claims
Administrator. He listed the following conditions allegedly
resulting from exposure to toxic chemicals while performing the
cleanup work: Sarcoidosis, sialolithiasis, neck pain, shortness of
breath, chest pain, and chronic back pain.
BP elected not to mediate Dailey's claim and he was instructed to
file a Back-End Litigation Option (BELO) lawsuit pursuant to the
"Medical Benefits Class Action Settlement Agreement" (MSA) approved
by the U.S. District Court for the Eastern District of Louisiana.
It is undisputed that Mr. Dailey is a member of the settlement
class for the Medical Benefits Class Action Settlement.
Mr. Dailey's BELO complaint was initially filed in the Middle
District of Louisiana, transferred to the Eastern District of
Louisiana, and later transferred to the Court. In his complaint, he
alleges that his "symptoms started with a nosebleed, high blood
pressure, migraine, and headaches" and his "second symptom" was
"back pain, shortness of breath, chest pain and neck pain." r.
Dailey alleges that he showed no symptoms until 2011 when he "went
to work for BP." He believes that these symptoms are a result of
exposure to the chemical Corexit 9500. He claims that BP was
negligent by not requiring him to wear a mask or providing training
on the chemicals involved which resulted in the development of
these medical conditions.
Mr. Dailey has provided his medical records. His medical record
from Dec. 28, 2012, shows that he was treated at the emergency
department for a headache. During this examination, he reported
treatment that morning for a nosebleed, which he has experienced in
the past, and a headache, but "denied any neck pain or meningeal
signs." Mr. Dailey reported a past medical history of Hypertension.
He was given Lortab during this visit. He was diagnosed with
headache, hyperglycemia, and hypertension and was discharged with a
recommendation for follow-up at Franklin Clinic for these
conditions.
In October 2013, Mr. Dailey was treated for foot pain and diagnosed
with gout. He was prescribed two pain medications, a medication to
treat his gout, and a hypertension medication. In November 2013, he
was treated for back pain and hypertension. The nurse practitioner
reported that Mr. Dailey had outpatient records which verified
"bulging discs in lumbar area." In December 2013, Mr. Dailey was
treated for "worsening migraine, shakes, and musculoskeletal pain"
occurring for the past month. He was assessed with "degeneration of
intervertebral disc hypertension, malignant headache and anxiety.
He was referred for a vision evaluation "ASAP-today." He was
prescribed medications for back pain, hypertension, migraine pain
and anxiety.
II. Analysis
To prevail on his BELO claim, Mr. Dailey must show through expert
testimony a relation between his alleged medical diagnosis with the
exposure to toxic chemicals in the oil spill cleanup. Causation is
an essential element of Mr. Dailey's toxic tort claim and therefore
he is required to prove causation through expert testimony
BP argues that Mr. Dailey has failed to disclose expert testimony
to prove that his alleged medical conditions were a result of
exposure to oil or chemical dispersants from the Deepwater Horizon
cleanup. It argues that because Mr. Dailey cannot prove an
essential element of his claim -- that the chemicals to which he
was exposed caused his illnesses -- it is entitled to judgment in
its favor.
In response, Mr. Dailey contends that he "does not need an expert
medical doctor" to prove causation. He argues that he did not cause
his own injury and that his medical records show his symptoms
started after exposure and therefore were caused by the exposure.
Mr. Dailey argues that as a result of exposure to the chemical
Corexit 9500, he now suffers lifelong medical conditions such as
Sarcoidosis.
Judge DuBose holds that Mr. Daily has failed to present sufficient
evidence that any of his medical conditions resulted from exposure
to the toxic chemicals Mr. Dailey's opinion is speculation and does
not create a genuine dispute for trial. Under these facts the
failure to provide expert testimony is fatal to his claim. Judge
Dubose finds that BP is entitled to judgment as a matter of law.
III. Conclusion
For the reasons set forth, BP's motion for summary judgment is
granted.
A full-text copy of the Court's May 27, 2022 Order is available at
https://tinyurl.com/yrd28tjz from Leagle.com.
CERTAIN UNDERWRITERS: 11th Cir. Affirms Town Kitchen Suit Dismissal
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In the case, TOWN KITCHEN LLC, individually and on behalf of those
similarly situated, Plaintiff-Appellant v. CERTAIN UNDERWRITERS AT
LLOYD'S, LONDON, Known As Syndicate ENH 5151, NEO 2468 XLC 2003,
TAL 1183, TRV 5000, AGR 3268, ACS 1856, NVA 2007, HDU 382, PPP
1980, AMA 1200, ASC 1414 and VSM 5678, INDIAN HARBOR INSURANCE
COMPANY, HDI GLOBAL SPECIALTY SE, Defendants-Appellees, Case No.
21-10992 (11th Cir.), the U.S. Court of Appeals for the Eleventh
Circuit affirms the district court's dismissal of the
Plaintiff-Appellant's amended complaint for failure to state a
plausible claim for insurance coverage.
I. Background
Town Kitchen owns and operates Town, a popular restaurant in Miami.
Like many other businesses, Town Kitchen purchased an all-risk
commercial property insurance policy from Defendant-Appellee
Certain Underwriters at Lloyd's, London.
Following the suspension of business operations because of the
COVID-19 pandemic and government closure orders, Town Kitchen
sought coverage for losses and expenses under the Business Income,
Extra Expense, and Civil Authority provisions of its policy. As
relevant here, those provisions require direct physical loss of or
damage to the property.
Specifically, the Business Income coverage section states, "We will
pay for the actual loss of Business Income you sustain due to the
necessary 'suspension' of your 'operations' during the 'period of
restoration.' The 'suspension' must be caused by direct physical
loss of or damage to property at premises."; Extra Expense is
defined as "necessary expenses you incur during the 'period of
restoration' that you would not have incurred if there had been no
direct physical loss or damage to property"; and the Civil
Authority coverage applies only when a Covered Cause of Loss
(defined as "direct physical loss unless the loss is excluded or
limited in this policy") causes "damage to property other than
property at the described premises."
After the Defendants denied coverage, Town Kitchen filed a putative
class action in Florida state court "on behalf of all entities that
do business in Florida: (1) having commercial property insurance
policies issued by Defendants including business interruption and
extra expense coverage that does not exclude coverage for
pandemics; and (2) which have suffered losses due to measures put
in place by civil authorities to stop the spread of COVID-19."
The Defendants removed the action to federal court under the Class
Action Fairness Act and moved under Rule 12(b)(6), Fed. R. Civ. P.,
to dismiss Town Kitchen's amended complaint for failure to state a
claim. The district court granted the motion.
Town Kitchen appeals.
II. Discussion
The Eleventh Circuit reviews de novo the district court's order
granting a motion to dismiss under Rule 12(b)(6), Fed. R. Civ. P.,
for failure to state a claim, accepting the allegations in the
complaint as true and construing them in the light most favorable
to the plaintiff. It explains that when the district court decided
the instant case, neither the Florida Supreme Court nor any
intermediate appellate court had yet construed "an all-risk
commercial insurance policy providing coverage for 'direct physical
loss of or damage to' property in the context of the COVID-19
pandemic."
But while Town Kitchen's appeal was pending, it decided SA Palm
Beach, LLC v. Certain Underwriters at Lloyd's London, 20-14812, ___
F.4th ___, 2022 WL 1421414, at *7 (11th Cir. May 5, 2022). It held
in that case that, under Florida law, physical loss or damage
requires "some tangible alteration of the property," so "there is
no coverage for loss of use based on intangible and incorporeal
harm to the property due to COVID-19 and the closure orders that
were issued by state and local authorities even though the property
was rendered temporarily unsuitable for its intended use."
Since then, Florida's Third District Court of Appeal confirmed that
the Eleventh Circuit correctly predicted how Florida courts would
construe the physical-damage provisions of these types of policies.
It also went further. Plus, the court favorably cited the
district-court opinion in the present case in holding that COVID-19
does not cause physical damage to property: "And to the extent
COVID-19 is a physical harm, such as COVID-19 particles present on
surfaces in the restaurant, those can be easily cleaned." Id.
Not only is the Eleventh Circuit bound by its prior-panel-precedent
rule to follow SA Palm, but also Erie Railroad Co. v. Tompkins, 304
U.S. 64 (1938) requires it to follow Commodore, Inc. v. Certain
Underwriters at Lloyd's London, 3D21-0671, ___ So.3d ___, 2022 WL
1481776, at *6 (Fla. 3d DCA May 11, 2022). Under both SA Palm and
Commodore, coverage under Town Kitchen's policy requires direct
physical loss or damage to the covered property, and the losses
here resulted from intangible harm caused by COVID-19. So Town
Kitchen failed to plead that its losses and expenses are covered
under the policy. Nor could it correct that deficiency upon
repleading, given the holdings in SE Palm and Commodore. So the
Eleventh Circuit affirms the dismissal of Town Kitchen's amended
complaint.
III. Disposition
The Eleventh Circuit affirms.
A full-text copy of the Court's May 27, 2022 Order is available at
https://tinyurl.com/mr86tjvk from Leagle.com.
CHICK-FIL-A INC: Court Removes Docket No. 24-1 From Pittman Suit
----------------------------------------------------------------
In the case, ANEISHA PITTMAN and SUSAN UKPERE, individually and on
behalf of all others similarly situated, Plaintiffs v. CHICK-FIL-A,
INC., Defendant, Civil Case No. 1:21-cv-08041-VM (S.D.N.Y.), Judge
Victor Marrero of the U.S. District Court for the Southern District
of New York grants the Plaintiff's Motion to Remove Filed Document:
Docket No. 24-1.
The Plaintiff has moved to remove filed Docket No. 24-1 at the
request of the Defendant. Having considered the arguments of the
parties and the papers submitted, and finding good cause therefore,
Judge Marrero grants the Plaintiff's Motion and removes Docket No.
24-1 from the publicly available docket.
A full-text copy of the Court's May 27, 2022 Order is available at
https://tinyurl.com/jw6bw8ew from Leagle.com.
CHINACACHE INTERNATIONAL: Settles Likas Shareholder Suit in CA
--------------------------------------------------------------
ChinaCache International Holdings Ltd. disclosed in its Form 20-F
Report for the fiscal year ended December 31, 2021, filed with the
Securities and Exchange Commission on May 17, 2022, that in March
14, 2022, the Central California District Court entered an order
and final judgment approving the agreement of settlement of a
shareholder class action lawsuit filed in the U.S. District Court
for the Central District of California captioned "William Likas v.
ChinaCache International Holdings Ltd. et al," Civil Action No.
2:2019-cv-06942, filed in August 9, 2019.
The action purportedly was brought on behalf of a class of persons
who allegedly suffered damages as a result of their trading
activities related to the its American Depository Shares from April
10, 2015 to May 17, 2019, alleging that certain of the its public
statements and filings contained materially false and misleading
statements or omissions in violation of US securities laws.
In October 2, 2019, the Central California District Court appointed
a group of two purported shareholders of as the Lead Plaintiff of
the class. In December 15, 2020, the parties reached an agreement
to a stipulation and agreement of settlement to settle this
purported class action. On April 26, 2021, the court granted
preliminary approval of the settlement and scheduled a settlement
hearing on August 27, 2021.
In March 14, 2022, the Central California District Court entered an
order and final judgment approving the agreement of settlement.
ChinaCache is a holding company with no operations of its own,
conduct operations primarily through subsidiaries.
CHOWNOW INC: Quezada Files ADA Suit in S.D. New York
----------------------------------------------------
A class action lawsuit has been filed against ChowNow, Inc. The
case is styled as Jose Quezada, individually, and on behalf of all
others similarly situated v. ChowNow, Inc., Case No. 1:22-cv-04478
(S.D.N.Y., May 31, 2022).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
ChowNow -- https://get.chownow.com/ -- is an online food ordering
platform that connects customers with local restaurants.[BN]
The Plaintiff is represented by:
Edward Y. Kroub, Esq.
MIZRAHI KROUB LLP
200 Vesey Street
New York, NY 10281
Phone: (212) 595-6200
Email: ekroub@mizrahikroub.com
COMPANHIA ENERGETICA: Faces Suits Over Hydroelectric Plant
-----------------------------------------------------------
Companhia Energetica De Minas Gerais (CEMIG) disclosed in its Form
20-F Report for the year ended December 31, 2021, filed with the
Securities and Exchange Commission on May 17, 2022, that the Public
Attorneys' Office of Minas Gerais State has filed class actions
requiring the formation of a Permanent Preservation Area (APP)
around the reservoir of the Capim Branco hydroelectric plant,
suspension of the effects of the environmental licenses, and
recovery of alleged environmental damage.
CEMIG is a state-controlled mixed capital company organized under
the laws of the Federative Republic of Brazil.
COMPANHIA ENERGETICA: Residential Tariff Dispute Ongoing
--------------------------------------------------------
Companhia Energetica De Minas Gerais (CEMIG) disclosed in its Form
20-F Report for the year ended December 31, 2021, filed with the
Securities and Exchange Commission on May 17, 2022, that the
Federal Public Attorneys' Office filed a class action against CEMIG
to avoid exclusion of customers from classification in the
Low-income Residential Tariff Sub-category and requesting an order
for CEMIG to pay 200% of the amount allegedly paid in excess by
customers in that sub-category. Judgment at first instance was
given in favor of the Federal Public Attorneys and CEMIG has filed
an appeal.
A decision by the Court in this case has been pending since March
2008.
CEMIG is a state-controlled mixed capital company organized under
the laws of the Federative Republic of Brazil.
COMVITA USA: Rodriguez Files ADA Suit in E.D. New York
------------------------------------------------------
A class action lawsuit has been filed against Comvita USA Inc. The
case is styled as Angel Rodriguez, individually and as the
representative of a class of similarly situated persons v. Comvita
USA Inc., Case No. 1:22-cv-03186 (E.D.N.Y., May 31, 2022).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Comvita -- https://www.comvita.com/ -- is the global leader in
Manuka Honey and a pioneering name in the natural health and
wellness category.[BN]
The Plaintiff is represented by:
Dan Shaked, Esq.
SHAKED LAW GROUP, P.C.
14 Harwood Court, Suite 415
Scarsdale, NY 10583
Phone: (917) 373-9128
Email: shakedlawgroup@gmail.com
CUSTOM CARE LOGISTICS: Cotton Files Suit in Cal. Super. Ct.
-----------------------------------------------------------
A class action lawsuit has been filed against Custom Care Logistics
LLC, et al. The case is styled as Akim Cotton, on behalf of other
members of the general public similarly situated v. Custom Care
Logistics LLC, Does 1-100, Case No. 34-2022-00320283-CU-OE-GDS
(Cal. Super. Ct., Sacramento Cty., May 19, 2022).
The case type is stated as "Other Employment - Civil Unlimited."
Custom Care Logistics -- https://www.customcarelogistics.com/ -- is
an Amazon Delivery Service Partner who provide last mile delivery
and logistics services.[BN]
The Plaintiff is represented by:
Douglas Han, Esq.
JUSTICE LAW CORPORATION
751 N Fair Oaks Ave, Ste. 101
Pasadena, CA 91103-3069
Phone: (818) 230-7502
Fax: (818) 230-7259
Email: dhan@justicelawcorp.com
DEKALB COUNTY, GA: $531K in Attys.' Fees & Costs Awarded in TH Suit
-------------------------------------------------------------------
In the case, T.H., as next friend T.B., et al., Plaintiffs v.
DEKALB COUNTY SCHOOL DISTRICT, et al., Defendants, Civil Action No.
1:19-CV-3268-TWT (N.D. Ga.), Judge Thomas W. Thrash, Jr., of the
U.S. District Court for the Northern District of Georgia, Atlanta
Division, grants the Plaintiffs' Motion for Attorney's Fees and
Costs.
I. Introduction
The lawsuit is a civil rights action. It is before the Court on the
Plaintiffs' Motion for Attorney's Fees and Costs. In light of the
Plaintiffs' recent settlement of this issue as to Defendants
Georgia Department of Education ("GaDOE") and Superintendent
Richard Woods, the Motion for Attorney's Fees and Costs remains
pending only as to Defendant Sheriff Melody Maddox.
II. Background
On Sept. 16, 2021, the Court granted the Plaintiffs' Motion for
Summary Judgment as to Liability in part and denied it in part, and
likewise granted Defendant Sheriff Maddox's Motion for Summary
Judgment in part and denied it in part. The Court found that the
Sheriff could be held liable for violations of the IDEA and, more
specifically, that the Sheriff violated her child find duty and her
obligation to facilitate the DeKalb County School District's
("DCSD") access to IDEA Class members requiring special education,
resulting in a denial of the free and appropriate public education
("FAPE") required by law. The Court also found that the Plaintiffs'
claims under Title II of the Americans with Disabilities Act
("ADA"), 42 U.S.C. Section 12131 et seq. and Section 504 of the
Rehabilitation Act, 29 U.S.C. Section 794 failed as a matter of
law.
On April 29, 2022, the Court granted in part and denied in part the
Plaintiffs' Motion for a Remedial Order, entering a permanent
injunction and remedial order against the Sheriff. The Plaintiffs
now move for attorney's fees and costs against the Sheriff, having
previously settled the same against the remaining Defendants. As
part of the settlement between the Plaintiffs and DeKalb County
School District ("DCSD") and Cheryl Watson-Harris, Superintendent
of DCSD, DCSD and Harris agreed to pay $75,000 in attorney's fees.
After the Court ruled on the summary judgment motions, and after
the Plaintiffs settled with Defendants Georgia Department of
Education ("GaDOE"), the Plaintiffs filed a Motion for Attorney's
Fees and Costs against the Defendant Sheriff and GaDOE. The
Plaintiffs then settled their attorney's fees claim as to GaDOE,
who agreed to pay the Plaintiffs $400,000 in attorney's fees and
costs. In light of this recent settlement, the Plaintiffs filed a
Notice of Updated Schedule of Attorney's Fees and Costs, explaining
that they are still seeking $1,244,954.13 in attorney's fees and
costs from the Sheriff.
III. Discussion
As noted previously, the Plaintiffs seek $1,244,954.13 in
attorney's fees and costs from the Sheriff. They arrive at this
figure by adding the fees and costs they believe they are owed from
the Sheriff only, and from the Sheriff and GaDOE jointly, and
subtracting their recent $400,000 settlement with the GaDOE and
$668 owed to errors in their time entries.
Judge Thrash finds that the Plaintiffs are entitled to an award of
attorney's fees, though not in the amount they seek, and that they
are entitled to a full award of costs.
First, after careful consideration of the Court's own knowledge of
the current Atlanta legal market and of the uncontested $190 per
hour rate charged by the Children's Rights paralegals, Judge Thrash
concludes that a rate of $200 per hour as to paralegals Catherine
Anderson, Lindsey Harrison, and Tanya Reed is reasonable. Even
still, paralegal work is only recoverable to the extent it is work
traditionally performed by an attorney.
Second, as Judge Thrash has elected not to conduct an hour-by-hour
analysis of the Plaintiffs' voluminous fee request, he exercises
his discretion to impose a 30 percent across-the-board reduction to
the hours billed by each attorney and paralegal that the Plaintiffs
have requested fees for. He finds a 30% reduction in the hours
billed to be reasonable, concluding that the reduction will account
for the excessive number of hours billed, any duplicity or
redundancy in the Plaintiffs' time entries, and the inclusion of
any hours that are not legally recoverable, as previously
discussed. The 30% reduction is reflected in the hours used in the
lodestar calculation.
Third, as to the portion of attorney's fees that the Plaintiffs
have billed against Sheriff and the GaDOE jointly, Judge Thrash
finds that joint and several liability for those fees is not
appropriate. As he sees it, the Sheriff and the GaDOE were at least
equally liable for the IDEA violations that took place. The Court's
lodestar calculation for the jointly billed fees is reduced by 50%
to reflect the percentage of those fees that are fairly
attributable to the Sheriff.
Judge Thrash also agrees that the Plaintiffs' claims sought a
unitary result, but that is not the yardstick for measuring success
in attorney's fees disputes. He concludes that an overall reduction
of 30% to the total lodestar calculation will appropriately account
for the Plaintiffs' limited success in the matter.
Based on the foregoing, the total award of attorney's fees to the
Plaintiffs against the Sheriff is $499,086.80. This figure takes
into account the total, 30% hours' reduced fee amount of
$428,126.93 for the Sheriff-only fees, plus the total, 30% hours'
reduced and 50-percent overall reduced fee amount of $284,854.22
for the jointly billed fees. That overall total of $712,981.15 was
then reduced by 30 percent to account for the Plaintiffs' partial
success, which comes out to $499,086.80. Accordingly, the
Plaintiffs' Motion for Attorney's Fees and Costs will be granted,
and the Court awards the Plaintiffs attorney's fees against the
Sheriff in the amount of $499,086.80.
Lastly, the Plaintiffs have requested an award of $31,728.89 in
costs. The Sheriff has not opposed this request in her brief, and
therefore concedes that issue. Similarly, as the Plaintiffs have
not moved for interest on any award of attorney's fees and costs,
Judge Thrash declines to order the same. Accordingly, the
Plaintiff's Motion for Attorney's Fees and Costs will be granted as
to their request for costs in the amount of $31,728.89.
IV. Conclusion
Judge Thrash grants the Plaintiffs' Motion for Attorney's Fees and
Costs. He awards the Plaintiffs attorney's fees in the amount of
$499,086.80 and costs in the amount of $31,728.89 against the
Sheriff.
A full-text copy of the Court's May 27, 2022 Opinion & Order is
available at https://tinyurl.com/2p8a4vb3 from Leagle.com.
DOMINION VOTING: 10th Cir. Affirms Dismissal of O'Rourke Class Suit
-------------------------------------------------------------------
In the case, KEVIN O'ROURKE, NATHANIEL L. CARTER, LORI CUTUNILLI,
LARRY D. COOK, ALVIN CRISWELL, KESHA CRENSHAW, NEIL YARBROUGH, AMIE
TRAPP, Plaintiffs-Appellants v. DOMINION VOTING SYSTEMS, INC., a
Delaware corporation; FACEBOOK, INC., a Delaware corporation;
CENTER FOR TECH AND CIVIC LIFE; MARK E. ZUCKERBERG, individually;
PRISCILLA CHAN, individually, Defendants-Appellees, Case No.
21-1161 (10th Cir.), the U.S. Court of Appeals for the Tenth
Circuit affirms the district court's dismissal of the Plaintiffs'
42 U.S.C. Section 1983 suit for lack of standing.
I. Background
After the Nov. 3, 2020, election for President of the United
States, eight registered voters from several states filed a class
action complaint in the District of Colorado alleging that the
Defendants (all private entities and individuals) had influenced or
interfered with the election in violation of various constitutional
provisions. Relying on their status as registered voters for
standing, the Plaintiffs alleged that the Defendants' conduct "hurt
every registered voter in the country, no matter whose side the
voter is on"; "damaged the Plaintiffs, but more broadly, every
registered voter in America, all of whom have an interest in free
and fair elections to determine the President of the United States
of America"; and "violated the rights of the Plaintiffs and all
registered voters in the United States."
As recompense, they requested a declaratory judgment, a permanent
injunction enjoining the Defendants "from continuing to burden the
rights of the Plaintiffs and all similarly situated registered
voters," and "nominal" damages of $1,000 per registered voter,
totaling approximately $160 billion.
Defendants Dominion Voting Systems, Inc., Facebook, Inc. (now known
as Meta Platforms, Inc.), and Center for Tech and Civic Life moved
to dismiss. The Plaintiffs then moved for leave to file an amended
complaint.
After hearing oral arguments on the motions, the district court
dismissed the suit for lack of Article III standing. The court held
that Plaintiffs asserted a non-justiciable generalized grievance,
because "by their own admission, the Plaintiffs' claimed injuries
are no different than the supposed injuries experienced by all
registered voters." The "Plaintiffs allege no particularized injury
traceable to the conduct of the Defendants, other than their
general interest in seeing elections conducted fairly and their
votes fairly counted." The court also denied the Plaintiffs' motion
to amend, holding that their proposed amended complaint failed to
remedy the lack of standing.
II. Discussion
A. Lack of Standing
It is the Plaintiffs' burden to establish their standing. To do so,
they must show three elements: (1) an injury in fact, that (2) has
a causal connection to Defendants' action(s), and that (3) is
likely to be redressed by a favorable decision.
The Tenth Circuit holds that no matter how strongly the Plaintiffs
believe that the Defendants violated voters' rights in the 2020
election, they lack standing to pursue the litigation unless they
identify an injury to themselves that is distinct or different from
the alleged injury to other registered voters. The Plaintiffs state
generally that they each suffered a "particularized injury," and
they recognize that they "must demonstrate a personal stake in the
outcome." Yet their appellate briefs fail to identify any injury to
any named plaintiff that is in any way different than the alleged
injuries to every registered voter in the United States.
Accordingly, the Plaintiffs have not established that the district
court erred in dismissing the action for lack of standing.
B. Denial of Leave to Amend
The Tenth Circuit generally reviews denial of leave to amend for
abuse of discretion, "but when a district court denies leave to
amend because amendment would be futile, its review for abuse of
discretion includes de novo review of the legal basis for the
finding of futility."
The proposed amended complaint sought to add 152 additional
plaintiffs, bringing the total number of plaintiffs to 160 from 38
states. It further sought to certify a class of all registered
voters in the United States, alleging that the class "consists of
millions of registered voters that make up the people of the United
States of America, and whose rights and interests have been
directly burdened."
But, the Tenth Circuit finds that the Plaintiffs fail to show that
any of the proposed additional plaintiffs had any injuries that
were distinct or different from the injuries allegedly suffered by
every registered voter in the United States. Therefore, for the
reasons discussed, the proposed amended complaint failed to
establish any plaintiff had Article III standing, and the district
court did not err in concluding that allowing amendment would be
futile.
III. Conclusion
The district court's judgment is affirmed.
A full-text copy of the Court's May 27, 2022 Order & Judgment is
available at https://tinyurl.com/45c2w4ha from Leagle.com.
EASTERN ACCOUNT SYSTEM: Zigelman Files FDCPA Suit in E.D. New York
------------------------------------------------------------------
A class action lawsuit has been filed against Eastern Account
System of Connecticut, Inc. The case is styled as Israel Zigelman,
individually and on behalf of all others similarly situated v.
Eastern Account System of Connecticut, Inc., Case No. 1:22-cv-03182
(E.D.N.Y., May 31, 2022).
The lawsuit is brought over alleged violation of the Fair Debt
Collection Practices Act.
Eastern Account System -- https://easternaccounts.com/ -- is a
third party collection agency that works on the original creditor's
behalf.[BN]
The Plaintiff is represented by:
Christofer Merritt, Esq.
STEIN SAKS LLC
1 University Plaza, Suite 620
Hackensack, NJ 07601
Phone: (540) 907-8248
Email: cmerritt@SteinSaksLegal.com
EMC INSURANCE: Court Reverses Denial of Bid to Dismiss Meade Suit
-----------------------------------------------------------------
In the case, KENDALL J. MEADE, Individually and on behalf of all
others similarly situated, Appellee, v. PETER S. CHRISTIE, STEPHEN
A. CRANE, JONATHAN R. FLETCHER, and GRETCHEN H. TEGELER,
Appellants, and EMC INSURANCE GROUP, INC., BRUCE G. KELLEY, and
EMCC CASUALTY COMPANY, Defendants, Case No. 21-0098 (Iowa), the
Supreme Court of Iowa reverses the business court's ruling on the
directors' motion to dismiss.
I. Introduction
The appeal involves a shareholder's challenge to a corporate merger
involving the purchase of a publicly-traded company's shares in
what's known as a "going private transaction." The shareholder
alleges that the corporation's directors abdicated their fiduciary
duties by agreeing to a flawed merger process with the acquirer
that resulted in too low a price for the minority shareholders'
stock. The corporate directors filed a motion to dismiss the
shareholder's claims, invoking statutory director protections --
known as "director shield" laws -- that prevent holding directors
liable for many types of claims for money damages. The Iowa
Business Specialty Court rejected the directors' arguments and
denied their motion to dismiss.
The directors filed an application for interlocutory review, which
the Supreme Court granted. The case presents the Supreme Court's
first opportunity to examine Iowa's director shield protections and
the procedural requirements that accompany them.
II. Background
Employers Mutual Casualty Co. (EMCC) was founded in 1911 in Des
Moines as a mutual insurance company. A "mutual" company is owned
by its policyholders; a "stock" company, in contrast, is owned by
stockholders.
EMCC formed EMC Insurance Group, Inc. (EMCI) in 1974 as a special
type of subsidiary called a "downstream subsidiary" that would
serve as EMCC's holding company. Under this structure, EMCC, the
old insurance company, became a subsidiary of EMCI, the new
company.
Bruce Kelley was EMCC's president and CEO and served on its board
of directors throughout the events of the case. Kelley was also
EMCI's president and CEO. EMCI's shareholders elected its board of
directors. Kelley served on EMCI's board of directors (at times
relevant to the lawsuit) with four other members: Peter S.
Christie, Stephen A. Crane, Jonathan R. Fletcher, and Gretchen H.
Tegeler.
In October 2018, EMCC decided to attempt to purchase the publicly
traded stock of EMCI that it didn't own, commonly referred to as a
"going private transaction." EMCC soon retained investment bank
Boenning & Scattergood, Inc., to provide financial analysis and to
assist EMCC's board in the going private transaction. On November
15, EMCC sent a nonbinding proposal letter to EMCI's board offering
to purchase the EMCI stock that EMCC didn't already own for $30 per
share. The next day, EMCC filed the proposal letter with the
Securities and Exchange Commission (SEC) and issued a press release
announcing the offer.
After EMCI's board received the proposal letter and EMCC made the
offer public, EMCI established a "Special Committee" consisting of
its four directors other than Kelley. In December 2018, the Special
Committee retained Willkie Farr & Gallagher, LLP, for legal
representation. The Special Committee also retained investment bank
Sandler O'Neill & Partners, L.P., to act as its financial advisor.
In January 2019, the Special Committee instructed Sandler O'Neill
to perform a due diligence investigation of EMCI, including
requesting business and financial information, and to schedule
management meetings to discuss EMCI's business and future.
Meanwhile, EMCC had received an unsolicited proposal from a group
of investors proposing a joint venture transaction involving EMCI.
EMCC's board of directors unanimously rejected the proposal without
notifying EMCI's board. EMCI's Special Committee received notice of
the proposal on January 24, about a month after EMCC received it.
The next day, EMCI received notice of a proposal from one of its
shareholders, Gregory Shepard, requesting that he be made a
candidate for its board of directors and a member of the Special
Committee. A few days later, Shepard filed a Schedule 13D (a form
required when a person or group acquires more than 5% of a voting
class of a company's stock) with the SEC, stating that he owned
5.09% of EMCI's common stock and that he believed EMCI's "common
stock was significantly undervalued." On February 25, the Special
Committee decided not to invite Shepard to be a board member of
EMCI.
Meanwhile, on January 31, EMCC publicly announced that it would not
"consider any alternative merger or transaction involving a third
party" that would involve EMCC merging with or into a third party.
On February 22, the Special Committee met with Willkie Farr and
Sandler O'Neill and discussed an alternative proposal (prepared by
Sandler O'Neill) that would replace certain insurance pooling
agreements between EMCI and EMCC. The alternative proposal was
presented to EMCC's board in early March. EMCC's senior executives
met with the deputy commissioner-supervisor of the Iowa Insurance
Division, who informed the executives that the alternative proposal
was unlikely to receive regulatory approval. EMCC's board rejected
the alternative proposal and kept the $30-per-share proposal on the
table.
On March 20, the Special Committee responded to EMCC with a
counteroffer of $40 per share of EMCI stock based on financial
projections by Sandler O'Neill. On March 25, Shepard sent another
letter to the Special Committee raising his concerns about its
independence, Kelley's and EMCC's control, and the "gross
inadequacy of EMCC's offer," and stating his belief that the fair
price was $50 per share.
The Special Committee and EMCC exchanged counteroffers until, on
April 20, the Special Committee accepted EMCC's offer to buy out
the minority shareholders at $36 per share. The final merger
agreement included a "no shop" provision, which prohibited EMCI
from soliciting bids from other potential purchasers. On September
18, EMCI held a special meeting of shareholders to vote on the
transaction. A majority of the minority shareholders -- that is, a
majority of the non-EMCC shareholders -- voted to approve the
merger at $36 per share. The shareholders were paid cash for their
shares the next day and had their shares canceled.
Kendall Meade, the plaintiff in the instant case, owned shares of
EMCI at the time of EMCC's buyout. Meade filed a class action
lawsuit on behalf of himself and the other former owners of common
stock of EMCI.
The petition alleges three causes of action. Meade's first cause of
action, against EMCI's individual directors (Christie, Crane,
Fletcher, Tegeler, and Kelley), alleges that the directors breached
"fiduciary duties of care, loyalty, good faith, and candor owed to
the public shareholders of EMCI." His second cause of action,
against EMCC, alleges that EMCC breached fiduciary duties it owed
to the minority shareholders of EMCI. And Meade's third cause of
action, against EMCI, alleges that EMCI aided and abetted the other
defendants' breaches of fiduciary duties.
EMCC, EMCI, and Kelley filed separate motions to dismiss. The four
other individual directors (Christie, Crane, Fletcher, and Tegeler)
filed a joint motion to dismiss. Each Defendant argued that Meade's
claims were derivative rather than direct and that, because Meade
had failed to comply with the Iowa Code's requirements for bringing
derivative claims, Meade's claims must be dismissed. Meade
resisted. The business court held that Meade's claims were direct
rather than derivative because the alleged wrongful actions injured
the shareholders rather than EMCI, and the shareholders had
suffered separate and distinct injuries from EMCI.
The four individual directors further argued that Meade failed to
plead around the statutory defenses available to the directors
under these circumstances. The business court rejected this
argument, reasoning that Iowa is a notice pleading state and that
Meade's allegations satisfied the pleading standard set forth in
the statute in any event, and denied the motion.
The business court granted Kelley's, EMCC's, and EMCI's motions to
dismiss. Those issues are not before us on this appeal. The only
defendants not dismissed by the business court were the EMCI
directors other than Kelley: Christie, Crane, Fletcher, and
Tegeler. These four defendants (whom for simplicity we will refer
to simply as "the directors" in this opinion even though Kelley
isn't included among them) filed an application for interlocutory
appeal. A week later, the directors filed an answer denying
liability. The Supreme Court granted the application and stayed
further proceedings in the case.
III. Analysis
The directors in this appeal raise two issues: (1) that Meade
failed to affirmatively plead facts showing that Iowa's director
shield statute, Iowa Code Section 490.831 (2019), did not protect
the directors against his claims; and (2) that Meade's claims were
derivative, not direct, and thus could not be brought unless Meade
had complied with our statutory requirements for derivative
proceedings. A finding in the directors' favor on either issue
would entitle them to dismissal from the case.
Corporate directors in Iowa must adhere to "standards of conduct"
that require directors to discharge their duties (1) in good faith,
and (2) in a manner that the director reasonably believes to be in
the best interests of the corporation. Meade must establish two
conditions to avoid the dismissal of his claims against the
directors. First, he must show that the directors have "interposed"
no defense that would shield them from liability. Second, he must
show that the directors' conduct violated one of the statutory
standards of conduct, meaning that their actions were either not in
good faith, not in the best interests of the corporation, or that
the directors were not reasonably informed about the transaction.
The Supreme Court opines that opines that the Plaintiffs do not
bear some duty of raising defenses for directors, and thus need not
themselves plead and negate in their petitions each statutory
defense that a director might interpose. The directors recited the
director shield protections in the articles of incorporation as a
defense to Meade's claim.
Having interposed the judicially-noticed director shield
protections as a defense in their motion to dismiss, the directors
argue that Meade in resistance to their motion needed to draw
reasonable inferences from the petition's factual allegations to
overcome the director shield defenses.
The Supreme Court disagrees with the business court's
interpretation of the statute, and thus its application of the
general pleading standard to the statute. Accepting Meade's
allegations as true, it finds Meade's allegations insufficient to
establish "intentional infliction of harm on the corporation or the
shareholders" by the directors. Meade has failed to share any facts
suggesting that he has claims that are not barred by the director
shield provision that would warrant leave to amend. Thus, the
Supreme Court denies Meade's request to amend his petition.
IV. Conclusion
Because the Supreme Court reverses the business court's ruling on
the directors' motion to dismiss for the reasons stated, and
because that holding is dispositive of the appeal, the Supreme
Court need not address the directors' other arguments seeking
dismissal of the claims. It remands to the business court to enter
judgment consistent with its Opinion and for further proceedings in
the case.
A full-text copy of the Court's May 27, 2022 Opinion is available
at https://tinyurl.com/58t8daez from Leagle.com.
Michael W. Thrall -- mwt@nyemaster.com -- (argued), Mark C.
Dickinson, Lynn C. Herndon, and Angel A. West, (until withdrawal)
of Nyemaster Goode, P.C., Des Moines, for the Appellants.
Juan Monteverde -- jmonteverde@monteverdelaw.com -- (argued) of
Monteverde & Associates PC, New York, New York, and Gary Dickey --
gary@iowajustice.com -- of Dickey, Campbell, & Sahag Law Firm, PLC,
Des Moines, for the Appellee.
William C. Brown of Brown -- william.brown@brownwinick.com --
Winick, Graves, Gross and Baskerville, P.L.C., Des Moines, for
amici curiae Iowa Association of Business and Industry and the Iowa
Business Council.
ENTERGY CORP: 5th Cir. Affirms in Part Remand Order in Stewart Suit
-------------------------------------------------------------------
In the case, Anthony J. Stewart, Diane Raley, Tomika Jordan, Sheena
Altine, Tyelga J. Kearney, et al., Plaintiffs-Appellees v. Entergy
Corporation; Entergy New Orleans, L.L.C.; Entergy Louisiana,
L.L.C., Defendants-Appellants, Case No. 22-30177 (5th Cir.), the
U.S. Court of Appeals for the Fifth Circuit affirms in part and
dismisses in part the district court's order granting the
Plaintiffs' motion to remand.
I. Background
The Plaintiffs-Appellees, individuals who were adversely affected
by power outages following Hurricane Ida, filed a class action
lawsuit in state court against the Defendants-Appellants
(collectively, "Entergy"). The Plaintiffs allege that Entergy
negligently designed, operated, and maintained the electricity
transmission system, which led to power outages in the wake of the
hurricane.
Entergy removed the case to federal court under 28 U.S.C. Section
1441, asserting three bases for original jurisdiction: Dederal
question jurisdiction, 28 U.S.C. Section 1331; jurisdiction under
the Class Action Fairness Act ("CAFA"), 28 U.S.C. Section 1453(b);
and federal bankruptcy jurisdiction, 28 U.S.C. Section 1452. The
Plaintiffs moved to remand, and the district court granted the
remand motion.
Typically, a case's foray into federal court ends there -- an order
remanding a case to state court is generally not appealable. But,
for actions removed under CAFA, appellate courts "may accept an
appeal from an order of a district court granting or denying a
motion to remand a class action to the State court from which it
was removed if application is made to the court of appeals" within
10 days after entry of the remand order. Entergy timely petitioned
for such an appeal, and the Fifth Circuit granted that request.
II. Discussion
A. CAFA Jurisdiction
The Plaintiffs concede that CAFA's statutory requirements are met
but assert that the local controversy and home state exceptions
preclude federal jurisdiction. Concluding, among other things, that
more than two-thirds of the proposed class members are Louisiana
citizens, the district court agreed and granted the Plaintiffs'
remand motion. The Fifth Circuit reviews that jurisdictional
determination de novo but review factual findings regarding the
citizenship of parties for clear error.
Based on the class definition and facts alleged, the Fifth Circuit
holds that it's evident that the class will consist overwhelmingly
of Louisiana citizens and corporations. To support that reasonable
assumption, the Plaintiffs adduced an informal survey establishing
that many of the proposed class members are indeed Louisiana
citizens. Entergy takes issue with the survey, asserting that its
informal nature renders it "essentially useless" in assessing the
citizenship of the full proposed class.
The Fifth Circuit understands Entergy's arguments regarding the
survey's methodology and reliability, but the latter's conclusions
merely support what a commonsense presumption based on the class
definition and the factual allegations dictates. At the very least,
it was not clearly erroneous for the district court to rely on the
survey in reaching its conclusion that at least two-thirds of the
proposed class members are Louisiana citizens.
The Fifth Circuit's decision accords with its prior precedent
holding that a class action stemming from a hurricane hitting
southeast Louisiana was a truly local controversy. It similarly
concludes that "the crux of the case revolves around a narrowly
defined class and claims stemming from a localized chain of
events." It's quite clear this controversy uniquely affects
Louisiana to the exclusion of other states. Accordingly, the
district court did not clearly err in assuming that at least
two-thirds of proposed class members are Louisiana citizens. CAFA's
local controversy and home state exceptions therefore apply, and
the case was properly remanded to state court.
B. Other Potential Appellate Jurisdiction
Entergy urges the Fifth Circuit to review its non-CAFA-related
jurisdictional assertions, arguing that the Supreme Court's recent
decision in BP P.L.C. v. Mayor of Baltimore, 141 S.Ct. 1532 (2021),
overrules its prior precedent.
The Fifth Circuit disagrees and, accordingly, must follow its prior
precedent. It concludes that BP did not overrule its prior
precedent, so the Fifth Circuit is required to continue following
the rule "that its jurisdiction to review a CAFA remand order stops
at the edge of the CAFA portion of the order." Thus, the Fifth
Circuit dismisses that portion of the appeal. As to the CAFA
portion of the district court's remand order, it agrees that the
local controversy and home state exceptions bar federal
jurisdiction, so it affirms that portion.
III. Conclusion
For the reasons set forth, the Fifth Circuit holds that CAFA's
local controversy and home state exceptions bar federal
jurisdiction. It also holds that, under governing precedent, its
appellate jurisdiction extends only to the CAFA-related claim. The
Fifth Circuit, therefore, affirms in part and dismisses in part.
A full-text copy of the Court's May 27, 2022 Order is available at
https://tinyurl.com/5bnfz7dw from Leagle.com.
FRONTLINE ASSET: Grinblat Files FDCPA Suit in D. New Jersey
-----------------------------------------------------------
A class action lawsuit has been filed against Frontline Asset
Strategies, LLC, et al. The case is styled as Simcha Grinblat,
individually and on behalf of all others similarly situated v.
Frontline Asset Strategies, LLC, LVNV Funding LLC, Case No.
7:22-cv-04467 (D.N.J., May 31, 2022).
The lawsuit is brought over alleged violation of the Fair Debt
Collection Practices Act.
Frontline Asset Strategies -- https://frontlineas.com/ -- is a
collection agency based out of Minnesota.[BN]
The Plaintiff is represented by:
Christofer Merritt, Esq.
STEIN SAKS LLC
1 University Plaza, Suite 620
Hackensack, NJ 07601
Phone: (540) 907-8248
Email: cmerritt@SteinSaksLegal.com
GOLDWATER BANK: Feins Suit Removed to D. Arizona
------------------------------------------------
The case styled as John Feins, individually and on behalf of all
others similarly situated v. Goldwater Bank NA, Case No.
CV2022-005047 was removed from the Maricopa County Superior Court,
to the U.S. District Court for the District of Arizona on May 31,
2022.
The District Court Clerk assigned Case No. 2:22-cv-00932-CDB to the
proceeding.
The nature of suit is stated as Other Contract for Personal
Injury.
Goldwater Bank -- https://www.goldwaterbank.com/ -- is a bank
specializing in financial products and services.[BN]
The Plaintiff is represented by:
Cristina Perez Hesano, Esq.
PEREZ LAW GROUP PLLC
7508 N 59th Ave.
Glendale, AZ 85301
Phone: (623) 826-5593
Email: cperez@perezlawgroup.com
The Defendant is represented by:
Abbey M Krysak, Esq.
Meagan Lynn Allen, Esq.
Sean Charles Wagner, Esq.
WAGNER HICKS PLLC
831 E Morehead St., Ste. 860
Charlotte, NC 28202
Phone: (704) 705-7942
Fax: (704) 525-0600
Email: abbey.krysak@wagnerhicks.law
sean.wagner@wagnerhicks.law
- and -
Benjamin John Naylor, Esq.
BURNS BARTON LLP
2201 E Camelback Rd., Ste. 360
Phoenix, AZ 85016
Phone: (602) 753-4500
Email: ben@burnsbarton.com
GREENSKY MGMT: Loses Bid for Judgment on Pleadings in Wright Suit
-----------------------------------------------------------------
In the case, ALEXISS WRIGHT, an individual, on behalf of herself
and others similarly situated, Plaintiff v. GREENSKY MANAGEMENT
COMPANY, LLC, GREENSKY, INC., GREENSKY HOLDINGS, LLC, and GREENSKY,
LLC, Defendants, Case No. 20-cv-62441-BLOOM/Valle (S.D. Fla.),
Judge Beth Bloom of the U.S. District Court for the Southern
District of Florida denies Greensky's Motion for Judgment on the
Pleadings as to Class Allegations Subsequent to Oct. 26, 2016, or,
Alternatively, to Partially Deny Certification as to Any Class
Subsequent to Oct. 26, 2016.
I. Background
On July 17, 2020, Wright initiated the class action against
GreenSky, Inc., GreenSky, LLC, GreenSky Holdings, LLC's, and
GreenSky Management Co., LLC (collectively, "Defendants" or
"Greensky") in the Circuit Court of the Seventeenth Judicial
Circuit in and for Broward County, Florida. On Dec. 1, 2020, the
Defendants removed the case to the Court, alleging jurisdiction
under the Class Action Fairness Act ("CAFA") of 28 U.S.C. Section
1332(d).
On Dec. 16, 2020, Wright filed a First Amended Class Action
Complaint, which added the Bucks and Maria C. Poza as named
Plaintiffs. The Complaint asserts the following three counts
against Defendants: Count I — Violations of Florida's Loan Broker
Law ("FLBL") (Fla. Stat. Section 687.14, et seq.); Count II —
Violations of Florida's Credit Service Organizations Act ("CSOA")
(Fla. Stat. Section 817.7001, et seq.); and Count III —
Injunctive Relief.
According to the Complaint, the Defendants are financial technology
companies that allow various types of merchants to apply for
point-of-sale loans on behalf of their customers through the
Defendants' mobile application that streamlines the entire lending
process. The Defendants fund these loans through partnerships with
lending institutions that serve as the lenders. They orchestrate
the loan origination process from the initial loan application
through funding, and after brokering the loan, the Defendants act
as the loan servicer.
In July 2016, the Bucks purchased a solar system financed by a
$25,000 Greensky loan. Unbeknownst to the Bucks, Greensky took a
merchant fee of approximately 13% of the principal. The Bucks
repaid the loan entirely within the first year and unknowingly paid
some or all of the undisclosed merchant fee. In June 2016, Wright
purchased an air-conditioning system financed by a $9,522 Greensky
loan. Unbeknownst to Wright, Greensky took a merchant fee of
approximately 16% of the principal. Wright repaid the loan in late
2018 and unknowingly paid some or all of the undisclosed merchant
fee. In November 2016, Poza contracted with Paradise Exteriors to
purchase and install storm shutters, which were financed by a
Greensky loan. Poza unknowingly paid some or all of Greensky's
merchant fee of approximately 6.75% of the principal.
The claims asserted in the Complaint are premised on the allegation
that the Defendants concealed the nature and amount of the merchant
fees charged to consumers and failed to comply with loan broker
disclosure requirements, in violation of the FLBL. The Complaint
also alleges that the Defendants acted as a credit service
organization ("CSO") without a surety bond, accepted valuable
consideration for referring customers to lenders who were offering
substantially the same loan terms to the general public, and made
false or misleading statements in violation of the CSOA.
On June 14, 2021, the Court directed the Defendants and Poza to
arbitration pursuant to an arbitration provision in Poza's loan
documents. However, the loan documents for the remaining named
Plaintiffs Wright and the Bucks do not have a similar arbitration
provision.
The Defendants now move for judgment on the pleadings as to the
Plaintiffs' class allegations based on loans obtained subsequent to
October 26, 2016. They argue that the Court should dismiss the
class allegations after that date, or alternatively deny
certification as to class allegations after that date, because
Greensky's loans after that date had arbitration provisions,
similar to the one in Poza's loan documents and unlike Plaintiffs'
loan documents.
The Plaintiffs respond that there is nothing in the pleadings or
elsewhere in the record to justify entry of judgment on the
pleadings, and the Defendants' alternative argument that the Court
deny certification pursuant to Rule 23 is premature and without
merit. The Defendants reply that their sworn discovery responses
indicate that every Greensky loan after Oct. 26, 2016 contained an
arbitration provision.
II. Discussion
A. Motion for Judgment on the Pleadings
The Defendants argue that the Plaintiffs do not have standing to
represent putative class members who obtained loans after Oct. 26,
2016 and agreed to the arbitration provision. They also contend
that even if the Plaintiffs have standing, the Plaintiffs cannot
satisfy the Rule 23 standards as a matter of law. As such, the
Defendants submit that the Court should dismiss the Plaintiffs'
class allegations based on any loans obtained after Oct. 26, 2016.
The Plaintiffs respond that nothing in the pleadings supports an
entry of judgment on the pleadings. Critically, nothing in the
pleadings supports the Defendants' contention that every putative
class member who received a Greensky loan after Oct. 26, 2016
agreed to an arbitration provision. The Plaintiffs argue that, even
if the Court were to look beyond the pleadings, nothing in the
record supports the Defendants' contention that every putative
class member who received a Greensky loan after October 26, 2016
agreed to an arbitration provision. They further contend that the
Defendants' substantive arguments that they lack standing or that
they cannot meet the Rule 23 standards are unavailing.
The Defendants reply that they provided discovery responses, under
oath, that "every Installment Loan Agreement GreenSky has serviced
through the GreenSky Program after Oct. 26, 2016, has contained an
arbitration provision and accompanying class action waiver
provision.
Upon review, Judge Bloom finds that nothing in the pleadings or the
record evidence -- that is central to the Plaintiffs' class
allegations and whose authenticity is undisputed -- supports the
Defendants' contention that every putative class member who
received a Greensky loan after Oct. 26, 2016 agreed to an
arbitration provision. Further, although the Defendants rely on the
Court's previous Orders, neither Order establishes the key
contention that every putative class member who received a Greensky
loan after Oct. 26, 2016 agreed to an arbitration provision.
Without establishing this key contention through the pleadings or
filings that are central to the Plaintiffs' class allegations,
Judge Bloom cannot find as a matter of law that the Defendants are
entitled to judgment on the pleadings.
B. Motion to Deny Class Certification
Judge Bloom now addresses the Defendants' alternative request that
the Court partially deny certification of class allegations based
on loans obtained after Oct. 26, 2016. The Defendants style their
alternative request as a motion to deny class certification, but
the alternative request is premised on the same arguments. To
reiterate, the Defendants maintain that the Plaintiffs have no
standing to represent any borrowers who agreed to arbitrate their
disputes, and even if the Plaintiffs had standing, they cannot
satisfy the Rule 23 standards as a matter of law.
The Plaintiffs respond that the Defendants' alternative request to
partially deny class certification is premature and without merit.
They argue that the Defendants must wait until the Plaintiffs have
filed a Motion for Class Certification to oppose class
certification and must wait until the class has been certified to
compel arbitration against class members who have agreed to
arbitration provisions.
The Defendants reply that the Plaintiffs are under the mistaken
belief that Defendants are invoking arbitration for the putative
class members.
Judge Bloom agrees with the Defendants to the extent that their
Motion seeks to deny class certification, not invoke the putative
class members' arbitration provisions. She also agrees with
Defendants to the extent that the Court can consider a motion to
deny class certification before a motion for class certification is
filed. She finds instructive Turner v. Food Corp., No.
08-61042-CIV, 2009 WL 10668616, at *2 (S.D. Fla. Feb. 3, 2009),
which the Defendants cite.
However, Judge Bloom is not persuaded by the merits of the
Defendants' arguments. As she stated, the Defendants' arguments
rely on the key contention that all loan agreements after Oct. 26,
2016 contained an arbitration provision. In support, the Defendants
only cite, in their Reply, a single self-serving response to the
Plaintiffs' interrogatories in their Responses. Judge Bloom does
not consider the self-serving response to be sufficient in
establishing that the class should not be certified, especially
before the close of class certification discovery.
Thus, while she has considered the Defendants' request to deny
class certification at this stage, Judge Bloom determines that the
Defendants' arguments are unpersuasive. She is willing to address
the arguments again, should the need arise at the class
certification phase, after the Plaintiffs have had the benefit of
class certification discovery and filed a Motion for Class
Certification in keeping with the Court's Scheduling Order.
To the extent that the Defendants' Motion was motivated by concerns
regarding the burden of additional discovery, Judge Bloom notes
that the Scheduling Order specifically contemplated such concerns
and bifurcated the class certification discovery and general
discovery in order to minimize the burden of discovery to the
extent possible.
III. Conclusion
Accordingly, the Motion is denied.
A full-text copy of the Court's May 27, 2022 Order is available at
https://tinyurl.com/435ayysv from Leagle.com.
HARRIS & HARRIS: Adler Files FDCPA Suit in E.D. New York
--------------------------------------------------------
A class action lawsuit has been filed against Harris & Harris of
Chicago. The case is styled as Sheva Adler, individually and on
behalf of all others similarly situated v. Harris & Harris of
Chicago, Case No. 1:22-cv-03180 (E.D.N.Y., May 31, 2022).
The lawsuit is brought over alleged violation of the Fair Debt
Collection Practices Act.
Harris & Harris -- https://www.harriscollect.com/ -- is a proud
member of the Innovation Council (powered by The iA Institute),
where business leaders converge to solve problems.[BN]
The Plaintiff is represented by:
Christofer Merritt, Esq.
STEIN SAKS LLC
1 University Plaza, Suite 620
Hackensack, NJ 07601
Phone: (540) 907-8248
Email: cmerritt@SteinSaksLegal.com
I & S FLOORS: Faces Arevalo Wage-and-Hour Suit in New York
----------------------------------------------------------
WILLIAM ROMEO AREVALO, on behalf of himself and all other persons
similarly situated, Plaintiffs v. I & S Floors, Inc., DAVID "DOE,"
and "ABC CORP.," Defendants, Case No. 1:22-cv-03149 (E.D.N.Y., May
27, 2022) is brought against the Defendants pursuant to the Fair
Labor Standards Act and the New York Labor Law for failing to pay
Plaintiff and similarly situated current and former employees
minimum wages, overtime and spread-of-hours compensation, and for
statutory damages for violation of the Wage Theft Prevention Act.
I & S Floors, Inc. owns and operates a flooring business in the New
York City area. The Plaintiff worked as an installer and polisher
from June of 2013 until January 15, 2020. [BN]
The Plaintiff is represented by:
Michael Samuel, Esq.
THE SAMUEL LAW FIRM
1441 Broadway, Suite 6085
New York, NY 10018
Telephone: (212) 563-9884
E-mail: michael@samuelandstein.com
IDAHOAN FOODS: Martinez Files ADA Suit in E.D. New York
-------------------------------------------------------
A class action lawsuit has been filed against Idahoan Foods, LLC.
The case is styled as Pedro Martinez, individually and as the
representative of a class of similarly situated persons v. Idahoan
Foods, LLC, Case No. 1:22-cv-03184 (E.D.N.Y., May 31, 2022).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Idahoan Foods, LLC -- https://idahoan.com/ -- is a manufacturer of
dehydrated potato products.[BN]
The Plaintiff is represented by:
Dan Shaked, Esq.
SHAKED LAW GROUP, P.C.
14 Harwood Court, Suite 415
Scarsdale, NY 10583
Phone: (917) 373-9128
Email: shakedlawgroup@gmail.com
LEUS CALIFORNIA: Quezada Files ADA Suit in S.D. New York
--------------------------------------------------------
A class action lawsuit has been filed against Leus California, LLC.
The case is styled as Jose Quezada, individually, and on behalf of
all others similarly situated v. Leus California, LLC, Case No.
1:22-cv-04479 (S.D.N.Y., May 31, 2022).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Leus California -- https://www.leustowels.com/ -- is a manufacturer
of ECO towels.[BN]
The Plaintiff is represented by:
Edward Y. Kroub, Esq.
MIZRAHI KROUB LLP
200 Vesey Street
New York, NY 10281
Phone: (212) 595-6200
Email: ekroub@mizrahikroub.com
LOOP INDUSTRIES: Faces Bazzini Shareholder Suit in NY Court
-----------------------------------------------------------
Loop Industries, Inc. disclosed in its Form 10-K Report for the
fiscal year ended February 28, 2022, filed with the Securities and
Exchange Commission on May 27, 2022, that the company and certain
of its officers were named as defendants in a proposed class action
lawsuit filed in the United States District Court for the Southern
District of New York in October 28, 2020 captioned "Michelle
Bazzini, individually and on behalf of all other similarly situated
v. Loop Industries, Inc., Daniel Solomita and Nelson Gentiletti,"
Case No. 7:20-cv-09031-NSR.
The complaint alleges that the defendants violated Sections 10(b)
and 20(a) and Rule 10b-5 of the Securities Exchange Act of 1934 by
allegedly making materially false and/or misleading statements, as
well as allegedly failing to disclose material adverse facts about
the company's business, operations, and prospects, which caused the
company's securities to trade at artificially inflated prices. The
complaint seeks unspecified damages on behalf of a class of
purchasers of Loop's securities between September 24, 2018 and
October 12, 2020.
In January 4, 2021, the United States District Court for the
Southern District of New York consolidated the class-action
lawsuits as "In re Loop Industries, Inc. Securities Litigation,"
Master File No. 7:20-cv-08538-NSR.
Plaintiffs served a consolidated amended complaint in February 18,
2021, which alleges that the defendants violated Sections 10(b) and
20(a) and Rule 10b-5 of the Securities Exchange Act of 1934 by
allegedly making materially false and/or misleading statements, as
well as allegedly failing to disclose material adverse facts about
the company's business, operations, and prospects, which caused the
company's securities to trade at artificially inflated prices.
Defendants served a motion to dismiss the consolidated amended
complaint on April 27, 2021. Plaintiffs' opposition to the motion
to dismiss was served on May 27, 2021 and defendants' reply in
support of the motion to dismiss is due on June 11, 2021.
Loop owns patented and proprietary technology that depolymerizes no
and low-value waste PET plastic and polyester fiber, including
plastic bottles and packaging, carpets and textiles of any color,
transparency or condition and even ocean plastics that have been
degraded by the sun and salt, to its base building blocks.
LOOP INDUSTRIES: Faces Shareholder Suit in Quebec Court
-------------------------------------------------------
Loop Industries, Inc. disclosed in its Form 10-K Report for the
fiscal year ended February 28, 2022, filed with the Securities and
Exchange Commission on May 27, 2022, that the company and certain
of its officers were named as defendants in a proposed class action
lawsuit filed in the Superior Court of Québec (District of
Terrebonne, Province of Québec, Canada), in file no.
700-06-000012-205.
The application for authorization of a class action and for
authorization to bring an action pursuant to section 225.4 of the
Québec Securities Act was filed by an individual shareholder on
behalf of himself and a class of buyers who purchased its
securities. Plaintiff alleges that throughout the class period, the
defendants allegedly made false and/or misleading statements and
allegedly failed to disclose material adverse facts concerning the
company's technology, business model, operations and prospects,
thus causing the company's stock price to be artificially inflated
and thereby causing plaintiff to suffer damages.
Plaintiff seeks unspecified damages stemming from losses he claims
to have suffered as a result of the foregoing. In December 13,
2020, the application was amended in order to add allegations
regarding specific misrepresentations. The authorization hearing
was held on February 24, 2022 and the matter is currently under
advisement.
Loop owns patented and proprietary technology that depolymerizes no
and low-value waste PET plastic and polyester fiber, including
plastic bottles and packaging, carpets and textiles of any color,
transparency or condition and even ocean plastics that have been
degraded by the sun and salt, to its base building blocks.
LOOP INDUSTRIES: Faces Tremblay Shareholder Suit in NY Court
------------------------------------------------------------
Loop Industries, Inc. disclosed in its Form 10-K Report for the
fiscal year ended February 28, 2022, filed with the Securities and
Exchange Commission on May 27, 2022, that the company and certain
of its officers were named as defendants in a proposed class action
lawsuit filed in the United States District Court for the Southern
District of New York in October 13, 2020 captioned "Olivier
Tremblay, individually and on behalf of all other similarly
situated v. Loop Industries, Inc., Daniel Solomita, and Nelson
Gentiletti," Case No. 7:20-cv-0838-NSR.
The complaint alleges that the defendants violated Sections 10(b)
and 20(a) and Rule 10b-5 of the Securities Exchange Act of 1934 by
allegedly making materially false and/or misleading statements, as
well as allegedly failing to disclose material adverse facts about
the company's business, operations, and prospects, which caused the
company's securities to trade at artificially inflated prices. The
complaint seeks unspecified damages on behalf of a class of
purchasers of Loop's securities between September 24, 2018 and
October 12, 2020.
In January 4, 2021, the United States District Court for the
Southern District of New York consolidated the class-action
lawsuits as "In re Loop Industries, Inc. Securities Litigation,"
Master File No. 7:20-cv-08538-NSR.
Plaintiffs served a consolidated amended complaint in February 18,
2021, which alleges that the defendants violated Sections 10(b) and
20(a) and Rule 10b-5 of the Securities Exchange Act of 1934 by
allegedly making materially false and/or misleading statements, as
well as allegedly failing to disclose material adverse facts about
the company's business, operations, and prospects, which caused the
company's securities to trade at artificially inflated prices.
Defendants served a motion to dismiss the consolidated amended
complaint on April 27, 2021. Plaintiffs' opposition to the motion
to dismiss was served on May 27, 2021 and defendants' reply in
support of the motion to dismiss is due on June 11, 2021.
Loop owns patented and proprietary technology that depolymerizes no
and low-value waste PET plastic and polyester fiber, including
plastic bottles and packaging, carpets and textiles of any color,
transparency or condition and even ocean plastics that have been
degraded by the sun and salt, to its base building blocks.
LSPACE AMERICA: Quezada Files ADA Suit in S.D. New York
-------------------------------------------------------
A class action lawsuit has been filed against LSpace America, LLC.
The case is styled as Jose Quezada, individually, and on behalf of
all others similarly situated v. LSpace America, LLC, Case No.
1:22-cv-04484 (S.D.N.Y., May 31, 2022).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
LSpace America -- https://www.lspace.com/ -- offers bikinis,
swimwear, & resort wear apparel.[BN]
The Plaintiff is represented by:
Edward Y. Kroub, Esq.
MIZRAHI KROUB LLP
200 Vesey Street
New York, NY 10281
Phone: (212) 595-6200
Email: ekroub@mizrahikroub.com
MADSON LLC: Quezada Files ADA Suit in S.D. New York
---------------------------------------------------
A class action lawsuit has been filed against Madson, LLC. The case
is styled as Jose Quezada, individually, and on behalf of all
others similarly situated v. Madson, LLC, Case No. 1:22-cv-04485
(S.D.N.Y., May 31, 2022).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Madson provide quick easy offers to property in need of work and
providing quality remodeled homes.[BN]
The Plaintiff is represented by:
Edward Y. Kroub, Esq.
MIZRAHI KROUB LLP
200 Vesey Street
New York, NY 10281
Phone: (212) 595-6200
Email: ekroub@mizrahikroub.com
MERCANTILE ADJUSTMENT: Strasser Files FDCPA Suit in E.D. New York
-----------------------------------------------------------------
A class action lawsuit has been filed against Mercantile Adjustment
Bureau, LLC. The case is styled as Sara Strasser, individually and
on behalf of all others similarly situated v. Mercantile Adjustment
Bureau, LLC, Case No. 1:22-cv-03201 (E.D.N.Y., May 31, 2022).
The lawsuit is brought over alleged violation of the Fair Debt
Collection Practices Act.
Mercantile Adjustment Bureau -- https://mercantilesolutions.com/ --
is recognized as a leader in receivables management services.[BN]
The Plaintiff is represented by:
Robert Thomas Yusko, Esq.
STEIN SAKS LLC
One University Plaza, Suite 620
Hackensack, NJ 07601
Phone: (201) 282-6500
Email: ryusko@steinsakslegal.com
MIDDLEBURY COLLEGE: Bid to Toss Count 1 in Mooers Suit Partly OK'd
------------------------------------------------------------------
In the case, HENRY MOOERS, on behalf of himself and all others
similarly situated, Plaintiff v. MIDDLEBURY COLLEGE, Defendant,
Case No. 2:20-cv-00144 (D. Vt.), Judge Christina Reiss of the U.S.
District Court for the District of Vermont grants in part and
denies in part the Defendant's partial motion to dismiss Count 1 of
the Second Amended Complaint.
I. Introduction
Plaintiff Mooers brings the putative class action against Defendant
Middlebury College alleging claims of breach of contract and unjust
enrichment stemming from the Defendant's tuition and fee policy
during semesters in which the Defendant moved to online classes due
to the COVID-19 pandemic. The Plaintiff seeks a disgorgement and
return of a prorated portion of tuition and fees, proportionate to
the amount of time that he was deprived of in-person education.
II. Background
On Jan. 22, 2021, the Defendant moved to dismiss the Plaintiff's
original Complaint. Thereafter, the parties entered a Stipulation
and Proposed Order permitting the Plaintiff to file an Amended
Complaint (the "AC") which the court adopted on Feb. 26, 2021. The
Plaintiff filed his AC on March 12, 2021.
On April 12, 2021, the Defendant moved to dismiss the AC pursuant
to Federal Rule of Civil Procedure 12(b)(6). On Sept. 16, 2021, the
court entered an Opinion and Order granting the motion to dismiss
as to Count 1 (Breach of Contract), Count 3 (Conversion), and Count
4 (Violation of the Vermont Consumer Protection Act ("VCPA")) and
denying the motion to dismiss as to Count 2 (Unjust Enrichment).
The Plaintiff was granted leave to amend within 20 days.
On Oct. 6, 2021, the Plaintiff filed the SAC which alleges: Count 1
(Breach of Contract) and Count 2 (Unjust Enrichment). On Oct. 20,
2021, the Defendant filed a motion to dismiss the SAC's breach of
contract claim. The Plaintiff opposed the motion on Nov. 19, 2021,
and on Dec. 3, 2021, the Defendant replied, at which time the Court
took the pending motion under advisement.
Although the Plaintiff's SAC includes allegations regarding student
motivations for pursuing a college education and the current
student debt crisis, these allegations are not material to the
pending motion. The Plaintiff alleges that he paid approximately
$28,940 for undergraduate tuition and approximately $218 in student
activity fees to attend Middlebury College during the Spring 2020
semester, which started on Feb. 10, 2020, and ended on May 19,
2020. Although the Court previously addressed and dismissed his
contract-based claims, the SAC asserts that the Plaintiff entered
into a contractual agreement with Defendant whereby he agreed to
pay tuition and fees in exchange for on-campus, in-person education
and other related services.
The SAC characterizes the Defendant as having "offered three
fundamental educational services: (1) instruction, (2) access to
campus, and (3) access to community and shared resources," based on
an array of postings and publications regarding the value of an
on-campus, in-person, educational experience. As a result of remote
learning, the Plaintiff asserts he "did not receive two of these
services." The Plaintiff alleges that he "reasonably expected" to
receive "access to facilities, labs, libraries, buildings,
technologies, and other tangible things" in addition to "access to
students, scholars, professors, and other academic professionals"
when he "enrolled, registered for, and paid for the Spring 2020
semester." He also "reasonably expected that Middlebury would
refund or credit him with the tuition and fees he paid."
III. Conclusions of Law & Analysis
A. Whether Plaintiff Plausibly Pleads a Breach of Contract Claim
for Tuition.
The SAC's breach of contract allegations are substantially similar
to those set forth in the Plaintiff's AC. He cites from the
Defendant's handbooks, manuals, websites, press releases, and other
materials and alleges that, collectively, they constitute "explicit
promises of in-person and on-campus educational services,"
including during a global pandemic, however, he fails to identify a
single "explicit promise" to this effect.
Judge Reiss holds that the Plaintiff's argument that if he is not
permitted to enforce a contractual right to in-person campus life
at Middlebury, "there would be no obligation on Middlebury to
provide anything to its students -- no instruction, no credits, no
degrees, not any type of teaching, and not any other educational
service," overstates the facts of his claim. Defendant Middlebury
did not provide the Plaintiff with nothing. It provided the
Plaintiff with a remote education and full credits in exchange for
his tuition. The court has allowed the Plaintiff's unjust
enrichment claim to proceed.
Against this backdrop, to claim that any student-university
contract between the parties is "entirely illusory" if the
Plaintiff is left without contractual rights based on Defendant's
aspirational statements is without merit. The Defendant's motion to
dismiss the Plaintiff's breach of contract claim with regard to a
tuition refund is therefore granted.
B. Whether Plaintiff Plausibly Pleads a Breach of Contract Claim
for Activity Fees.
The Plaintiff fares better with his activity fee claim by asserting
he was charged a "'Spring Student Activity Fee' of $213" but
received nothing because "no student activities were offered to the
Plaintiff and similarly situated students" during this "material"
time. Although the Plaintiff alleges the "Defendant has breached
its contract as to Mandatory Fees," he does not describe the
intended purpose of the activity fee which arguably renders his
remaining allegations "unavailing due to their conclusory nature."
Judge Reiss holds that to the extent the Defendant argues that the
activity fee pertains to services other than solely those offered
on campus, that evidence is not before the court. Drawing all
reasonable inferences in the Plaintiff's favor, she denies without
prejudice the Defendant's motion to dismiss with regard to the
activity fee component of the Plaintiff's breach of contract
claim.
C. Plaintiff's Post-Spring 2020 Claims.
In its pending motion to dismiss the SAC, the Defendant asserts
that although the Plaintiff "appears to expand his claims to
encompass every semester after spring 2020," there can be no
recovery "for transitions to remote learning after spring 2020
because the Plaintiff and other Middlebury students had actual
knowledge and express notice before enrolling in each subsequent
semester that Middlebury might transition courses to remote
modalities in response to COVID-19."
Judge Reiss finds that the Plaintiff's opposition does not address
this argument, nor does it clarify whether he intends to assert
claims pertaining to post-Spring 2020 semesters. As a result, his
post-Spring 2020 claims have been abandoned. The Defendant's motion
to dismiss those claims is therefore granted.
IV. Conclusion
For the foregoing reasons, Judge Reiss grants in part and denies in
part the Defendant's partial motion to dismiss Count 1 of the SAC.
A full-text copy of the Court's May 27, 2022 Opinion & Order is
available at https://tinyurl.com/79363xez from Leagle.com.
MLD MORTGAGE: Joint Bid to Stay Court's Judgment in Dye Granted
---------------------------------------------------------------
In the class action lawsuit captioned as ROGER DYE, et. al., v. MLD
MORTGAGE, INC., dba THE MONEY STORE, Case No. e 1:19-cv-03304-ELH
(D. Md.), the Hon. Judge Ellen Hollander entered granting joint
motion to stay the Court's Judgment of Plaintiffs' Motion for Class
Certification, pending final approval of the Parties settlement
Agreement.
On January 17, 2022, the Plaintiffs filed their Motion for Class
Certification. On February 8, 2022, the Defendants filed their
Opposition.
On February 28, 2022, the Plaintiffs filed their Reply. The
Plaintiffs' Motion for Class Certification is fully briefed and
pending before the Court.
On May 27, 2022, the Parties reached an Agreement settling both the
individual and class claims alleged in the Complaint. The Agreement
proposes and will seek approval of a Settlement Class thereby
rendering unnecessary a decision on the pending motion for class
certification.
MLD Mortgage provides financing services.
A copy of the Court's order dated June 1, 2022 is available from
PacerMonitor.com at https://bit.ly/3tjZpOi at no extra charge.[CC]
The Plaintiffs are represented by:
Timothy F. Maloney, Esq.
Veronica B. Nannis, Esq.
JOSEPH, GREENWALD & LAAKE
6404 Ivy Lane, Suite 400
Greenbelt, MD 20770
Telephone: (301) 220-2200
Facsimile: (301) 220-1214
E-mail: tmaloney@jgllaw.com
vnannis@jgllaw.com
- and -
Michael Paul Smith, Esq.
Melissa L. English, Esq.
SMITH, GILDEA & SCHMIDT, LLC
600 Washington Avenue, Suite 200
Towson, MD 21204
Telephone: (410) 821-0070
Facsimile: (410) 821-0071
E-mail: mpsmith@sgs-law.com
menglish@sgs-law.com
The Defendant is represented by:
Harry Levy, Esq.
SHUMAKER WILLIAMS P.C.
Dulaney Center II
901 Dulaney Valley Road, Suite 610
Towson, MD 21204
Telephone: (410) 825-5426
Facsimile: (410) 825-5426
E-mail: hlevy@shumakerwilliams.com
MULLEN AUTOMOTIVE: Faces Schaub Shareholder Suit in CA Court
------------------------------------------------------------
Mullen Automotive Inc. disclosed in its Form 10-Q/A Report for the
quarterly period ended March 31, 2022, filed with the Securities
and Exchange Commission on May 17, 2022, that on May 5, 2022 a
purported class action lawsuit was filed by Margaret Schaub,
individually and on behalf of all others similarly situation, in
the U.S. District Court of Central California.
The lawsuit alleges that during the period between June 15, 2020
and April 6, 2022 the company made materially false and misleading
statements regarding its business, operations, and compliance
policies in violation of federal securities laws.
Mullen Automotive, Inc. is a development-stage electronic vehicle
manufacturer.
NEWQUEST LLC: FLSA Class Settlement in Lowe Suit Wins Approval
--------------------------------------------------------------
In the case, LIZABETH LOWE, Plaintiff v. NEWQUEST, LLC and CIGNA
CORPORATION, Defendants, Case No. 8:21-cv-2320-TPB-JSS (M.D. Fla.),
Judge Tom Barber of the U.S. District Court for the Middle District
of Florida, Tampa Division, grants the Joint Motion to Approve FLSA
Settlement and to Dismiss his Action with Prejudice.
The matter is before the Court on consideration of the report and
recommendation Julie S. Sneed, U.S. Magistrate Judge, entered on
May 11, 2022. Judge Sneed recommends the "Joint Motion to Approve
FLSA Settlement and to Dismiss his Action with Prejudice" be
granted. No objection to the report and recommendation was filed,
and the time to object has expired.
After conducting a careful and complete review of the findings and
recommendations, a district judge may accept, reject, or modify the
magistrate judge's report and recommendation. A district court must
"make a de novo determination of those portions of the report and
recommendation to which an objection is made. When no objection is
filed, a court reviews the report and recommendation for clear
error.
Upon due consideration of the record, including Judge Sneed's
report and recommendation, in conjunction with an independent
examination of the file, Judge Barber adopts the report and
recommendation in all respects. He agrees with Judge Sneed's
detailed and well-reasoned factual findings and legal conclusions.
Accordingly, the report and recommendation is affirmed and adopted
and incorporated by reference into the Order for all purposes,
including appellate review. The "Joint Motion to Approve FLSA
Settlement and to Dismiss this Action with Prejudice" is granted in
part and denied in part to the extent stated in the report and
recommendation.
The Settlement Agreement and Release is approved, with the
exception of the general release (section 5(a)), individual
remedies release (section 5(c)), class action waiver (section
5(d)), and non-disparagement clause (section 6(i)).
The general release, individual remedies release, class action
waiver, and non-disparagement clause of the Settlement Agreement
are stricken.
Judge Barber dismissed without prejudice the Plaintiff's claims
against the Defendants.
The Clerk is directed to terminate any pending motions and
deadlines, and thereafter close the case.
A full-text copy of the Court's May 27, 2022 Order is available at
https://tinyurl.com/5fnth3y7 from Leagle.com.
NVIDIA CORPORATION: Shareholder Suit Dismissed, Appeal Lodged
-------------------------------------------------------------
NVIDIA Corporation disclosed in its Form 10-Q Report for the
quarter ended May 1, 2022, filed with the Securities and Exchange
Commission on May 27, 2022, that a dismissed shareholder suit is
currently on appeal in the Ninth Circuit.
Plaintiffs in the putative securities class action lawsuit No.
4:18-cv-07669-HSG, initially filed on December 21, 2018 in the
United States District Court for the Northern District of
California, and titled "In Re NVIDIA Corporation Securities
Litigation," filed an amended complaint on May 13, 2020.
The amended complaint asserted that NVIDIA and certain NVIDIA
executives violated Section 10(b) of the Securities Exchange Act of
1934, as amended, or the Exchange Act, and SEC Rule 10b-5, by
making materially false or misleading statements related to channel
inventory and the impact of cryptocurrency mining on GPU demand
between May 10, 2017 and November 14, 2018. Plaintiffs also alleged
that the NVIDIA executives who they named as defendants violated
Section 20(a) of the Exchange Act and sought class certification,
an award of unspecified compensatory damages, an award of
reasonable costs and expenses, including attorneys' fees and expert
fees, and further relief as the Court may deem just and proper.
In March 2, 2021, the district court granted NVIDIA's motion to
dismiss the complaint without leave to amend, entered judgment in
favor of NVIDIA and closed the case. In March 30, 2021, plaintiffs
filed an appeal from judgment in the United States Court of Appeals
for the Ninth Circuit, case number 21-15604. Oral argument on the
appeal was held in May 10, 2022.
NVIDIA is into semiconductors and related devices. It is based in
Santa Clara, California.
OPTUMSERVE HEALTH: O'Brien Files Suit Over Unlawful Labor Practices
-------------------------------------------------------------------
DAMETA O'BRIEN, individually, and on behalf of all others similarly
situated, Plaintiff v. OPTUMSERVE HEALTH SERVICES, INC., a
Wisconsin corporation; MEDIX STAFFING SOLUTIONS, INC., an Illinois
corporation; and DOES 1 through 10, inclusive, Defendants, Case No.
CGC-22-599848 (Cal. Super., San Francisco Cty., May 27, 2022) is
brought against the Defendants for California Labor Code violations
and unfair business practices stemming from Defendants' failure to
pay minimum wages, failure to pay overtime wages, failure to
provide meal periods, failure to authorize and permit rest periods,
failure to maintain accurate records of hours worked and meal
periods, failure to timely pay all wages to terminated employees,
failure to indemnify necessary business expenses, and failure to
furnish accurate wage statements.
The Plaintiff is a California resident who worked for the
Defendants as a data administrator from approximately January 2022
to March 2022.
OptumServe Health Services, Inc., a Wisconsin corporation, is a
health service provider.[BN]
The Plaintiff is represented by:
Kane Moon, Esq.
Allen Feghali, Esq.
Jacquelyne P. VanEmmerik, Esq.
MOON & YANG, APC
1055 W. Seventh St., Suite 1880
Los Angeles, CA 90017
Telephone: (213) 232-3128
Facsimile: (213) 232-3125
E-mail: kane.moon@moonyanglaw.com
allen.feghali@moonyanglaw.com
jacquelyne.vanemmerik@moonyanglaw.com
ORANGE COUNTY, CA: Ahlman, et al., Seek to Certify Class
--------------------------------------------------------
In the class action lawsuit captioned as MELISSA AHLMAN, on behalf
of themselves and all others similarly situated, et al., v. DON
BARNES, in his official capacity as Sheriff of Orange County,
California; and ORANGE COUNTY, CALIFORNIA, Case No.
8:20-cv-00835-JGB-SHK (C.D. Cal.), the Plaintiffs ask the Court to
enter an order certifying a class consisting of:
"all current and future detainees incarcerated in the Orange
County Jail."
Orange County is a region in Southern California. It's known for
Anaheim's Disneyland Resort, a huge complex of rides, restaurants
and shops.
A copy of the Plaintiffs' motion to certify class dated May 31,
2022 is available from PacerMonitor.com at https://bit.ly/3xjJa6g
at no extra charge.[CC]
The Plaintiffs are represented by:
Mitchell Kamin, Esq.
Elizabeth R. Archer, Esq.
COVINGTON & BURLING LLP
1999 Avenue of the Stars
Los Angeles, CA 90067-4643
Telephone: (424) 332-4800
Facsimile: (424) 332-4749
E-mail: mkamin@cov.com
earcher@cov.com
- and -
Corene T. Kendrick, Esq.
Kyle Virgien, Esq.
AMERICAN CIVIL LIBERTIES UNION FOUNDATION
39 Drumm Street
San Francisco, CA 94111
Telephone: (202) 393-4930
E-mail: ckendrick@aclu.org
kvirgien@aclu.org
- and -
Laura Beth Cohen, Esq.
Andrew Leff, Esq.
Marta Cook, Esq.
COVINGTON & BURLING LLP
One CityCenter
850 Tenth Street, N.W.
Washington, D.C. 20001
Telephone: (202) 662-6000
Facsimile: (202) 778-5906
E-mail: lcohen@cov.com
aleff@cov.com
mcook@cov.com
- and -
Somil Trivedi, Esq.
AMERICAN CIVIL LIBERTIES UNION FOUNDATION
915 15th Street, N.W.
Washington, D.C. 20005
Telephone: (202) 715-0802
E-mail: strivedi@aclu.org
- and -
Paul Hoffman, Esq.
John Washington, Esq.
SCHONBRUN, SEPLOW, HARRIS,
HOFFMAN & ZELDES LLP
11543 W. Olympic Blvd.
Los Angeles, CA 90064
Telephone: (310) 399-7040
Facsimile: (310) 399-7040
E-mail: hoffpaul@aol.com
jwashington@sshhlaw.com
- and -
Peter Eliasberg, Esq.
AMERICAN CIVIL LIBERTIES
FUND OF SOUTHERN CALIFORNIA
1313 W. 8th Street
Los Angeles, CA 90017
Telephone: (213) 977-9500
E-mail: peliasberg@aclu.org
- and -
Peter Eliasberg, Esq.
AMERICAN CIVIL LIBERTIES FUND OF SOUTHERN
CALIFORNIA
1313 W. Eighth St.
Los Angeles, CA 90017
- and -
John Washington, Esq.
SCHONBRUN, SEPLOW, HARRIS, HOFFMAN &
ZELDES LLP
11543 W. Olympic Blvd.
Los Angeles, CA 90064
Telephone: (310) 399-7040
E-mail: jwashington@sshhlaw.com
PETRA LIVING: Smith Files Suit in Cal. Super. Ct.
-------------------------------------------------
A class action lawsuit has been filed against Petra Living, Inc.,
et al. The case is styled as Giovonnie Smith, as an individual and
on behalf of others similarly situated v. Petra Living, Inc., a
Delaware corporation d/b/a Oliver Space, Does 1 through 80,
Inclusive, Case No. CGC22599900 (Cal. Super. Ct., San Francisco
Cty., May 31, 2022).
The case type is stated as "Other Non-Exempt Complaints."
Petra Living, Inc. doing business as Oliver Space --
https://www.oliver.space/ -- is a home furnishing company that
makes living spaces easy and affordable.[BN]
The Plaintiff is represented by:
Jared Osborne, Esq.
HENNING KRAMER RUIZ & SINGH
3600 Wilshire Blvd., Ste. 1908
Los Angeles, CA 90010-2623
Phone: 213-310-8301
Email: jared@employmentattorneyla.com
ROTMANS FURNITURE: Settlement Reached in LaChapelle Labor Suit
--------------------------------------------------------------
Vystar Corporation disclosed in its Form 10-K Report for the fiscal
year ended December 31, 2021, filed with the Securities and
Exchange Commission on May 17, 2022, that in January 2022, the
parties in a class action complaint against its subsidiary Rotmans
Furniture and two of its prior owners (including Steve Rotman,
President of the Company) in the Worcester Superior Court, agreed
to a settlement. The Stipulation of Dismissal is expected to be in
June 2022 after the settlement payment is made.
On March 13, 2020, Robert LaChapelle, a former employee of Rotmans
Furniture, the company's majority owned subsidiary, on behalf of
himself and all others similarly situated, filed a class action
complaint against Rotmans and two of its prior owners in the
Worcester Superior Court alleging non-payment of overtime pay and
Sunday premium pay pursuant to the Massachusetts Blue Laws, the
Massachusetts Overtime Law and the Massachusetts Payment of Wages
Law. Specifically, LaChapelle alleged that Rotmans failed to pay
him and other sales people who were paid on a commission-only basis
overtime pay at a rate of least 1.5 times the basic minimum wage or
premium pay (also at 1.5 times the basic minimum wage) for hours
they worked on Sundays. The parties settled with the named
Plaintiffs, Robert LaChapelle and certain other employees, each on
an individual basis, for a de minimus amount which was paid in
March 2021. plaintiffs' counsel then filed a Stipulation of
Dismissal of the plaintiffs' complaint with prejudice.
Vystar Corporation uses patented technology to produce a line of
innovative air purifiers, which destroy viruses and bacteria
through the use of ultraviolet light. In addition, Vystar
manufactures and sells reduced allergen natural rubber latex used
primarily in various bedding products.
ROTMANS FURNITURE: Settles Employees' Labor Suit
------------------------------------------------
Vystar Corporation disclosed in its Form 10-K Report for the fiscal
year ended December 31, 2021, filed with the Securities and
Exchange Commission on May 17, 2022, that on May 21, 2021, one
former and one current employee of its subsidiary Rotmans Furniture
filed suit in the Worcester District Court alleging non-payment of
overtime pay and Sunday premium pay pursuant to the Massachusetts
Blue Laws, the Massachusetts Overtime Law and the Massachusetts
Payment of Wages Law.
In January 2022, the parties settled and the Stipulation of
Dismissal is expected to be in June 2022 after the settlement
payment is made.
Vystar Corporation uses patented technology to produce a line of
innovative air purifiers, which destroy viruses and bacteria
through the use of ultraviolet light. In addition, Vystar
manufactures and sells reduced allergen natural rubber latex used
primarily in various bedding products.
RUTH'S HOSPITALITY: To Settle Castillo Labor Suit
-------------------------------------------------
Ruth's Hospitality Group, Inc. disclosed in its current Form 8-K
Report as of May 24, 2022, filed with the Securities and Exchange
Commission on May 27, 2022, that as of May 24, 2022, Ruth's
Hospitality Group Inc. and the class representatives have agreed to
a Memorandum of Understanding regarding settlement of a class
action litigations styled "Castillo v. RCSH Operations, Inc., et
al., Case No. 21SMCV01530, Superior Court of California, Los
Angeles County.
The parties have agreed to prepare and execute a settlement
agreement, the terms of which are subject to court approval. The
Memorandum of Understanding provides for an aggregate settlement
payment by the company of $6.0 million which includes all
settlement funds, the class representatives' enhancement payments,
settlement administrator's expenses, payment to the Labor Workforce
Development Agency with regard to the California Private Attorney's
General Act portion of the settlement, and class counsel's
attorneys' fees and costs.
Ruth's Hospitality Group, Inc. is a Florida-based retail chain.
RCSH operates Ruth's Chris Steak House.
RUTH'S HOSPITALITY: To Settle Guerrero Labor Suit
-------------------------------------------------
Ruth's Hospitality Group, Inc. disclosed in its current Form 8-K
Report as of May 24, 2022, filed with the Securities and Exchange
Commission on May 27, 2022, that as of May 24, 2022, Ruth's
Hospitality Group Inc. and the class representatives have agreed to
a Memorandum of Understanding regarding settlement of a class
action litigations styled "Guerrero, et al. v. Ruth's Hospitality
Group, Inc., et al.," Case No. RIC1804127, Superior Court of
California, Riverside County,
The parties have agreed to prepare and execute a settlement
agreement, the terms of which are subject to court approval. The
Memorandum of Understanding provides for an aggregate settlement
payment by the company of $6.0 million which includes all
settlement funds, the class representatives' enhancement payments,
settlement administrator's expenses, payment to the Labor Workforce
Development Agency with regard to the California Private Attorney's
General Act portion of the settlement, and class counsel's
attorneys' fees and costs.
Ruth's Hospitality Group, Inc. is a Florida-based retail chain.
RUTH'S HOSPITALITY: To Settle Patterson Labor Suit
--------------------------------------------------
Ruth's Hospitality Group, Inc. disclosed in its current Form 8-K
Report as of May 24, 2022, filed with the Securities and Exchange
Commission on May 27, 2022, that as of May 24, 2022, Ruth's
Hospitality Group Inc. and the class representatives have agreed to
a Memorandum of Understanding regarding settlement of a class
action litigations styled "Patterson v. Ruth's Hospitality Group,
Inc., et al., Case No. MSC21-02077, Superior Court of California,
Contra Costa County.
The parties have agreed to prepare and execute a settlement
agreement, the terms of which are subject to court approval. The
Memorandum of Understanding provides for an aggregate settlement
payment by the company of $6.0 million which includes all
settlement funds, the class representatives' enhancement payments,
settlement administrator's expenses, payment to the Labor Workforce
Development Agency with regard to the California Private Attorney's
General Act portion of the settlement, and class counsel's
attorneys' fees and costs.
Ruth's Hospitality Group, Inc. is a Florida-based retail chain.
RYDER INTEGRATED: Williams Files Suit in N.D. Illinois
------------------------------------------------------
A class action lawsuit has been filed against Ryder Integrated
Logistics, Inc. The case is styled as Dejuan Williams, individually
and on behalf of all others similarly situated v. Ryder Integrated
Logistics, Inc., Case No. 3:22-cv-50177 (N.D. Ill., May 31, 2022).
The nature of suit is stated as Other P.I. for Account Receivable.
Ryder System, Inc., commonly known as Ryder --
https://lms.ryder.com/ -- is an American transportation and
logistics company.[BN]
The Plaintiff is represented by:
Eric Donald Coleman, Esq.
Nathan Charles Volheim
SULAIMAN LAW GROUP, LTD.
2500 South Highland Avenue, Suite 200
Lombard, IL 60148
Phone: (630) 575-8181
Email: ecoleman@sulaimanlaw.com
nvolheim@sulaimanlaw.com
SELECT EMPLOYMENT: Ledesma Suit Removed to C.D. California
----------------------------------------------------------
The case styled as Yvonne Ledesma, on behalf of herself and others
similarly situated v. Select Employment Services, Inc., Concentra
Health Services, Inc., Select Medical Corporation, Does 1 to 100,
inclusive, Case No. 22STCV03360 was removed from the Los Angeles
Superior Court, to the U.S. District Court for the Central District
of California on May 31, 2022.
The District Court Clerk assigned Case No. 2:22-cv-03716-AB-MAA to
the proceeding.
The nature of suit is stated as Other Labor for Labor/Mgmnt.
Relations.
Select Employment Services -- https://select-tx.com/ -- is a
locally-owned staffing company with experience serving the Laredo
and surrounding markets.[BN]
The Plaintiff is represented by:
Cecile Vue, Esq.
Joseph Lavi, Esq.
Pooja Virendra Patel, Esq.
Vincent Charles Granberry, Esq.
LAVI AND EBRAHIMIAN LLP
8889 West Olympic Boulevard Suite 200
Beverly Hills, CA 90211
Phone: (310) 432-0000
Fax: (310) 432-0001
Email: cvue@lelawfirm.com
jlavi@lelawfirm.com
ppatel@lelawfirm.com
vgranberry@lelawfirm.com
The Defendants are represented by:
Alexander Miller Chemers, Esq.
OGLETREE DEAKINS NASH SMOAK AND STEWART PC
400 South Hope Street Suite 1200
Los Angeles, CA 90071
Phone: (213) 239-9800
Fax: (213) 239-9045
Email: alexander.chemers@ogletreedeakins.com
- and -
Charles Louis Thompson, Esq.
OGLETREE DEAKINS NASH SMOAK AND STEWART PC
Steuart Tower
One Market Plaza Suite 1300
San Francisco, CA 94105
Phone: (415) 442-4810
Fax: (415) 442-4870
Email: charles.thompson@ogletree.com
- and -
Jared Lee Palmer, Esq.
OGLETREE DEAKINS NASH SMOAK AND STEWART PC
1 Embarcadero Center Suite 900
San Francisco, CA 94105
Phone: (415) 442-4810
Fax: (415) 442-4870
Email: jared.palmer@ogletree.com
SMARTSHEET INC: Laredo Files Suit in Mass. Super. Ct.
-----------------------------------------------------
A class action lawsuit has been filed against Smartsheet, Inc. The
case is styled as Josh Laredo, Michael Corcoran, individually and
on behalf of all others similarly situated v. Smartsheet, Inc.,
Case No. 2281CV02357 (Mass. Super. Ct., Middlesex Cty., May 31,
2022).
The case type is stated as "Contract / Business Cases."
Smartsheet -- https://www.smartsheet.com/ -- is a software as a
service offering for collaboration and work management, developed
and marketed by Smartsheet Inc.[BN]
The Plaintiffs are represented by:
Matthew W. Thomson, Esq.
LICHTEN AND LISS-RIORDAN
729 Boylston St., Ste. 2000
Boston, MA 02116
SUPERVALU INC: Harris Files Suit in N.D. Illinois
-------------------------------------------------
A class action lawsuit has been filed against SuperValu, Inc. The
case is styled as Adrion Harris, Lashawnda Sharkey, Brenda
Donelson, Linda Rizza, Debra Seedler, Marcia Brown, on behalf of
themselves and all others similarly situated v. SuperValu, Inc.,
Case No. 1:22-cv-02863 (N.D. Ill., May 31, 2022).
The nature of suit is stated as Other P.I. for Personal Injury.
SuperValu -- https://supervalu.ie/ -- is part of the Musgrave
Group, Ireland's largest grocery and food distributor.[BN]
The Plaintiffs are represented by:
Gary M. Klinger, Esq.
MILBERG, COLEMAN LAW FIRM - ILLINOIS
227 West Monroe Street, Suite 2100
Chicago, IL 60606
Phone: (847) 208-4585
Email: gklinger@milberg.com
TARGET CORPORATION: Final OK of Class Action Settlement Sought
--------------------------------------------------------------
In the class action lawsuit captioned as SERGIO GARCIA, on behalf
of himself and all others similarly situated, v. TARGET
CORPORATION, a Minnesota corporation, and DOES 1 through 50,
inclusive, Case No. 2:19-cv-01249-TLN-DB (E.D. Cal.), the Parties
ask the Court to enter an order granting final approval of their
class action settlement.
Target Corporation is an American big box department store chain
headquartered in Minneapolis, Minnesota. It is the eighth largest
retailer in the United States, and a component of the S&P 500
Index. Target was established as the discount division of Dayton's
department store of Minneapolis in 1962.
A copy of the Parties' motion dated May 31, 2022 is available from
PacerMonitor.com at https://bit.ly/3NTz4hJ at no extra charge.[CC]
The Plaintiff is represented by:
James R. Hawkins, Esq.
Isandra Fernandez, Esq.
JAMES HAWKINS APLC
9880 Research Drive, Suite 200
Irvine, CA 92618
Telephone: (949) 387-7200
Facsimile: (949) 387-6676
E-mail: james@jameshawkinsaplc.com
isandra@jameshawkinsaplc.com
The Defendant is represented by:
Sergio Garcia, Esq.
Jeffrey D. Wohl, Esq.
Eric D. Distelburger, Esq.
PAUL HASTINGS LLP
101 California Street, 48th Floor
San Francisco, CA 94111
Telephone: (415) 856-7000
Facsimile: (415) 856-7100
E-mail: jeffwohl@paulhastings.com
ericdistelburger@paulhastings.com
TTEC SERVICES: Court Names Interim Co-Lead Counsel in Beasley Suit
------------------------------------------------------------------
In the case, YOLANDA BEASLEY, KIMBERLY SHEARS-BARNES, SHENEEQUA
CARRINGTON, and JOLYNN FROST, on behalf of themselves and all
others similarly situated, Plaintiffs v. TTEC SERVICES CORPORATION,
Defendant. DAVID ANDERSON, individually and on behalf of all others
similarly situated, Plaintiff v. TTEC SERVICES CORPORATION,
Defendant, Civil Action No. 22-cv-00097-PAB-NYW, Consolidated with
Civil Action No. 22-cv-00347-PAB-NYW, Civil Action No.
22-cv-00347-PAB-NYW, Consolidated with Civil Action No.
22-cv-00097-PAB-NYW (D. Colo.), Magistrate Judge Nina Y. Wang of
the U.S. District Court for the District of Colorado grants the
Plaintiffs' Motion to Appoint Interim Co-Lead Counsel Under Fed. R.
Civ. P. 23(g)(3).
I. Background
On Jan. 13, 2022, Plaintiffs Yolanda Beasley, Kimberly
Shears-Barnes, Sheneequa Carrington, and Jolynn Frost initiated a
putative class action against Defendant TTEC, alleging that a
cyberattack against the Defendant and a subsequent data breach led
to the improper disclosure of the Plaintiffs' personal
information.
Then, on Feb. 8, 2022, Plaintiff David Anderson initiated a second
putative class action against the Defendant arising out of the same
cyberattack and data breach -- Civil Action No.
22-cv-00347-PAB-NYW, Anderson v. TTEC Servs. Corp., ECF No. 1.
All the Plaintiffs subsequently moved to consolidate the two cases
in light of the common questions of law or fact and the Plaintiffs'
overlapping claims. Chief Judge Philip A. Brimmer granted the
Plaintiffs' request and consolidated the instant matter with the
Anderson case. The Plaintiffs filed a Consolidated Class Action
Complaint and Demand for Jury Trial in the case on April 18, 2022.
The Plaintiffs filed the instant Motion on April 28, 2022,
requesting that the court appoint Gary M. Klinger and Jean S.
Martin as interim co-lead counsel in this matter pursuant to Rule
23(g)(3) of the Federal Rules of Civil Procedure. They represent
that the Defendant "takes no position on this Motion," and the
Defendant did not file a response to the Motion within the
timeframe permitted by the Local Rules of Practice. The Motion is
thus ripe for disposition, and Judge Wang considers the Plaintiffs'
arguments
II. Analysis
Rule 23(g) of the Federal Rules of Civil Procedure governs the
appointment of class counsel. Relevant in the case, the Rule
provides that a court "may designate interim counsel to act on
behalf of a putative class before determining whether to certify
the action as a class action." "When appointing interim class
counsel, courts generally look to the same factors used in
determining the adequacy of class counsel under Rule 23(g)(1)(A)."
These factors include: (1) the work counsel has done in identifying
or investigating potential claims in the action; (2) counsel's
experience in handling class actions, other complex litigation, and
the types of claims asserted in the action; (3) counsel's knowledge
of the applicable law; and (4) the resources that counsel will
commit to representing the class.
The court may also "consider any other matter pertinent to
counsel's ability to fairly and adequately represent the interests
of the class." Upon review of these factors, Judge Wang determines
that appointment of Mr. Klinger and Ms. Martin as interim co-lead
counsel is appropriate in the matter.
First, she finds that it is apparent that counsel have performed
substantial work in identifying or investigating the potential
claims in the action. The Plaintiffs represent that immediately
after the public announcement of the data breach, Ms. Martin and
Mr. Klinger began investigating potential legal claims for victims
of the alleged data breach. This work is reflected in the detailed
Consolidated Class Action Complaint and Demand for Jury Trial, as
well as the Parties' agreement to engage in mediation to explore
early resolution of the case.
With respect to the remaining factors, Judge Wang finds that Ms.
Martin and Mr. Klinger each have extensive experience in handling
class actions and in litigating matters arising out of data
breaches. In addition, the counsel's law firms have substantial
experience in complex litigation and are currently involved in a
number of cases involving major data breaches. Judge Wang concludes
that counsel's experience will be valuable in the case. And based
on counsel's and their firms' considerable experience in
data-breach class actions, she similarly concludes that counsel are
well-versed in the applicable areas of the law and have the
resources to vigorously prosecute this case.
Finally, aside from the described determinations, Judge Wang notes
that "the proposed leadership structure has the support of all
Plaintiffs and firms involved in the cases filed in the
litigation," and the Defendant has not formally opposed the
Plaintiffs' request. Moreover, the counsel's firms have experience
working together in data breach class actions, and the counsel
represent that they "operate as a cohesive, well-organized group."
For all of these reasons, Judge Wang finds that appointment of Ms.
Martin and Mr. Klinger as the interim co-lead counsel in the case
is appropriate under Rule 23(g)(3).
III. Conclusion
For the foregoing reasons, Judge Wang grants the Plaintiffs' Motion
to Appoint Interim Co-Lead Counsel Under Fed. R. Civ. P. 23(g)(3)
Motion to Dismiss. She appoints Gary M. Klinger of Milberg Coleman
Bryson Phillips Grossman, PLLC and Jean S. Martin of Morgan &
Morgan Complex Litigation Group as the interim co-lead counsel in
the matter.
A full-text copy of the Court's May 27, 2022 Order is available at
https://tinyurl.com/3db7ndxj from Leagle.com.
UNITED STATES: Appeals Preliminary Injunction Ruling in Doster Suit
-------------------------------------------------------------------
The Secretary of the U.S. Department of the Air Force, et al., are
taking an appeal from a court order granting in part and denying in
part a motion for preliminary injunction filed in the lawsuit
entitled Hunter Doster, et al., on behalf of themselves and all
others similarly situated, Plaintiffs, v. Secretary of the U.S.
Department of the Air Force, et al., Defendants, Case No.
1:22-cv-00084, in the U.S. District Court for the Southern District
of Ohio.
Hunter Doster, et al., brought this action, on behalf of themselves
and on behalf of the Plaintiff classes, consisting of all
active-duty, and active reserve members of the United States Air
Force and Space Force who: (i) submitted a religious accommodation
request to the Air Force from the Air Force's COVID-19 vaccination
requirement, where the request was submitted or was pending, from
September 1, 2021 to the present; (ii) were confirmed as having had
a sincerely held religious belief by or through Air Force
Chaplains; and (iii) either had their requested accommodation
denied or have not had action on that request. The Defendants are
the Secretary of the U.S. Department of the Air Force, in his
official capacity; Surgeon General of the Airforce, in his official
capacity; Commander, Air Education and Training Command, in his
official capacity; Commander, Air Force Reserve Command, in his
official capacity; Commander, Air Force Special Operations Command,
in his official capacity; United States of America.
The Plaintiffs claim that their constitutional and Religious
Freedom Restoration Act (RFRA) rights have been violated because of
the Defendants' failure to grant religious accommodation from the
COVID-19 vaccine requirement. The Plaintiffs seek declaratory and
injunctive relief.
On February 22, 2022, the Plaintiffs filed an emergency motion for
temporary restraining order and a motion for preliminary
injunction.
On March 31, 2022, Judge Matthew W. McFarland granted in part and
denied in part Plaintiff's motion for preliminary injunction, and
issued a preliminary injunction order, holding that: (1)
Defendants, as well as any persons acting in concert with
Defendants, are enjoined and restrained from taking any
disciplinary or separation measures against the Plaintiffs named in
this action for their refusal to get vaccinated for COVID-19 due to
their sincerely held religious beliefs. Such disciplinary or
separation measures include, but are not limited to, "adverse
administrative actions, non-judicial punishment, administration
demotions, administrative discharges, and courts-martial"; (2)
Defendants, as well as any person acting in concert with
Defendants, are enjoined and restrained from taking any adverse
action against Plaintiffs on the basis of this lawsuit or their
request for religious accommodation from the COVID-19 vaccine; (3)
Thus, the temporary exemptions from taking the COVID-19 vaccine
currently in place for these Plaintiffs will remain in place during
the resolution of this litigation; (4) In accordance with Federal
Rule of Civil Procedure 65(d)(2), this Order binds the following
who receive actional notice of it by personal service or otherwise:
the parties; the parties' officers, agents, servants, employees,
and attorneys; and other persons who are in active concert or
participation with the parties or the parties' officers, agents,
servants, employees, and attorneys; (5) Pursuant to Federal Rule of
Civil Procedure 65(c), the Court has considered the need for
Defendants to post security and concludes that no sum is required
under the facts of this case; and (6) Plaintiffs' Emergency Motion
for Temporary Restraining Order as to Hunter Doster is denied as
moot.
The appellate case is captioned Hunter Doster, et al. v. Secretary
of the U.S. Department of the Air Force, et al., Case No. 22-3497,
in the United States Court of Appeals for the Sixth Circuit, filed
on May 31, 2022. [BN]
Defendants-Appellants Secretary of the U.S. Department of the Air
Force, et al., are represented by:
Sarah Jane Clark, Esq.
DEPARTMENT OF JUSTICE
950 Pennsylvania Avenue, N.W.
Washington, DC 20530
Telephone: (202 305-8727
Plaintiffs-Appellees Hunter Doster, et al., individually and on
behalf of all others similarly situated, are represented by:
Christopher David Wiest, Esq.
Law Office
25 Town Center Boulevard, Suite 104
Crestview Hills, KY 41017
Telephone: (513) 257-1895
E-mail: chris@cwiestlaw.com
- and -
Thomas Bernard Bruns, Esq.
BRUNS, CONNELL, VOLLMAR & ARMSTRONG
4555 Lake Forest Drive, Suite 330
Cincinnati, OH 45242
Telephone: (513) 312-9890
E-mail: tbruns@bcvalaw.com
- and -
Aaron Siri, Esq.
SIRI & GLIMSTAD
200 Park Avenue, 17th Floor
New York, NY 10166
Telephone: (212) 532-1091
E-mail: aaron@sirillp.com
YAMAGUCHI & FRIENDS: Faces Abe Wage-and-Hour Suit in E.D.N.Y.
-------------------------------------------------------------
HISAMI ABE and TAISEI ABE, on their own behalf and on behalf of
others similarly situated Plaintiffs v. YAMAGUCHI & FRIENDS, INC.
d/b/a Taka Sushi; TAKAFUMI YAMAGUCHI, and RIE YAMAGUCHI Defendants,
Case No. 2:22-cv-03164 (E.D.N.Y., May 29, 2022) is a class action
brought by the Plaintiffs arising from Defendants' various willful,
malicious, and unlawful employment policies, patterns and practices
in violation of the Fair Labor Standards Act and the New York Labor
Law.
The Plaintiffs allege the Defendants' failure to pay minimum wages
and overtime compensation, illegal retention of tips, unlawful
kickbacks, unlawful deductions, failure to provide spread of time
pay, and failure to furnish time of hire wage notices and wage
statements.
Plaintiff Hisami Abe was employed by the Defendants to work as a
waitress, receptionist, and packer from May 15, 2019 to February
15, 2022 and again from September 21, 2021 to the present day.
Plaintiff Taisei Abe was employed by Defendants to work as a packer
and receptionist on Fridays and Saturdays from September 21, 2021
to the present day.
Yamaguchi & Friends, Inc., d/b/a Taka Sushi, is a family-owned and
operated Japanese restaurant that specializes in sushi and sashimi
cuisine.[BN]
The Plaintiffs are represented by:
John Troy, Esq.
Aaron Schweitzer, Esq.
Tiffany Troy, Esq.
TROY LAW, PLLC
41-25 Kissena Boulevard Suite 103
Flushing, NY 11355
Telephone: (718) 762-1324
*********
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Toledo, Christopher G. Patalinghug, and Peter A. Chapman, Editors.
Copyright 2022. All rights reserved. ISSN 1525-2272.
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