/raid1/www/Hosts/bankrupt/CAR_Public/220620.mbx
C L A S S A C T I O N R E P O R T E R
Monday, June 20, 2022, Vol. 24, No. 116
Headlines
ALFI INC: Faces Kleinschmidt Shareholder Suit in Florida Court
ALFI INC: Faces Steppacher Shareholder Suit in Florida
ALLSTATE PROPERTY: Class Status Hearing Set for August 23-24
AM COMMUNICATIONS: Class Cert. Deadlines & Schedules Extended
AMAZON.COM SERVICES: Parties Seeks to Modify Scheduling Order
AMC ENTERTAINMENT: Delinquently Pays Wages, Pope Class Suit Says
AMERICAN BAR: Disclosed Info Without Consent, Crane Suit Alleges
AMGUARD INSURANCE: Court Dismisses Amir Class Suit With Prejudice
APEX CLEARING: Chavez Suit Moved From S.D.N.Y. to S.D. Florida
APPLE INC: Consolidated Processor Suit Dismissed W/ Leave to Amend
AVALONBAY COMMUNITIES: Williams Labor Code Suit Goes to C.D. Cal.
BGLG INC: Slade Files ADA Suit in S.D. New York
BLACK DIAMOND: Class Settlement in Borelli Suit Has Final Approval
BOB DEAN: Verdin's Bid for Conditional Class Certification Denied
BOFI HOLDING: Class Deal in Securities Suit Gets Prelim. Approval
BRAVO ARKOMA: MRC Seeks Final Approval of Class Settlement
C.R. ENGLAND: Faces Bischoff Suit Over Alleged Data Breach
CAMBER ENERGY: Faces Coggins Shareholder Suit in Texas Court
CG-HHC INC: Fails to Pay OT Compensation to Non-Exempt Employees
CHAPTER NY LLC: Jackson Files ADA Suit in S.D. New York
CIGNA HEALTH: Faces Suit Over Payment of Insurance Claims
CINTAS CORPORATION: Calendar Order Entered in Bearup Class Suit
CORECIVIC INC: Plaintiffs Allowed to File Exhibits Under Seal
CREE INC: Court Junks Wedra Bid for Class Certification
EAST GRAND: Rajabova Class Suit Seeks Minimum Wages Under FLSA
EDUCATION CREDIT: Parties Directed to File Joint Status Report
EVOLENT HEALTH: Class Certification Hearing Extended to July 8
FEDERAL SAVINGS: Filing of Class Certification Bid Due Sept. 27
FIDELITY DESIGN HOUSE: Lawal Files ADA Suit in S.D. New York
FLOWERS FOODS: Settles Bowen and Aucoin Suits in Maine
FOOT SOLUTIONS: Crosson Files ADA Suit in S.D. New York
FORD MOTOR: Seeks Denial of Class Certification in Tucker Suit
GALERIE BUCHHOLZ: Website Not Accessible to Blind, Miller Alleges
GEICO CASUALTY: Court Modifies Class Cert Briefing Schedule in Day
GLENS FALLS: Richard Seeks Final Approval of Class Settlement
GOT GUARD: Hooks Sues Over Unpaid Wages for Security Guards
HAWKINS NEW YORK: Lawal Files ADA Suit in S.D. New York
HEALTH ENROLLMENT: Ketayi Allowed to File Fourth Amended Complaint
HI Q INC: Case Management & Pretrial Deadlines Extension Sought
HIGHMARK BCBSD: Parties Must File Case Management Order by June 21
HILTON RESORTS: Chavez Wage-and-Hour Suit Goes to C.D. California
HOOSIER CONTRACTORS: Denial of Summary Judgments in Gardner Upheld
HUDSON'S BAY: Class Settlement in Data Breach Suit Gets Final Nod
IBM CORP: Adams and Movants to Confer on Appointment of Lead Roles
INGLEWOOD SPORTSERVICE: Fails to Pay Proper Wages, Cyiark Alleges
INMAR INC: Seeks to Stay Holmes' Class Certification Bid
INNOVATIVE HEALTH: Wins Summary Judgment Bid v. Bhambhani Suit
INSTANT BRANDS: Faces Havens Suit Over Pressure Cooker Defect
INTERNATIONAL BUSINESS: Knight Sues Over Unfair Pension Benefits
ISTOGROUP INC: Fails to Pay Proper Wages, Benoit Suit Alleges
JAMES LEBLANC: Filing of Class Cert. Bid Extended in Humphrey
JIGSAW HEALTH: Slade Files ADA Suit in S.D. New York
JUUL LABS: Blaine School Sues Over Youth E-Cigarette Crisis
JUUL LABS: Causes Youth E-Cigarette Crisis, Mead School Suit Says
JUUL LABS: E-Cigarette Ads Target Youth, East Valley Suit Says
JUUL LABS: E-Cigarette Triggers Youth Health Crisis, Crandon Says
JUUL LABS: Entices Youth to Use E-Cigarettes, Hugo Public Alleges
JUUL LABS: Faces Bethel School Suit Over Youth's E-Cigarette Ads
JUUL LABS: Faces Manistee Suit Over Youth E-Cigarette Epidemic
JUUL LABS: Faces Oakfield-Alabama Suit Over E-Cigarette Crisis
JUUL LABS: Frenchtown School Sues Over Youth E-Cigarette Campaign
JUUL LABS: Markets E-Cigarette to Youth, Claiborne Suit Claims
JUUL LABS: Mount Baker Sues Over E-Cigarette's Risks to Youth
JUUL LABS: Oak Harbor Sues Over Youth's E-Cigarette Addiction
JUUL LABS: Promotes E-Cigarette Use Among Youth, Walla Suit Says
JUUL LABS: Steubenville City Sues Over Deceptive E-Cigarette Ads
JUUL LABS: Toutle Lake Sues Over Youth E-Cigarette Crisis in Wash.
KOMATSU MINING: Bid to Dismiss Curtis' Amended Complaint Granted
LANGIS LLC: Slade Files ADA Suit in S.D. New York
LLOYD AUSTIN: Plaintiffs Allowed to Amend Complaint
MAJOR LEAGUE: Casey's Sues Over Alleged Anticompetitive Scheme
MANAGEMENT & TRAINING: Hinton Labor Suit Goes to C.D. California
MARATHON REFINING: Wood Bid for Class Certification Granted in Part
MARKETSOURCE INC: Brum Suit Seeks Certify Class & Subclasses
MERCEDES-BENZ USA: Agrees With Maadanian on Pleading and Due Dates
META PLATFORMS: District Court Consolidates Sloan and Gervat Suits
MEWBOURNE OIL: Hay Creek Seeks Final Approval of Settlement
MGM RESORTS: Lucas, et al., File Bid for Class Certification
MIDNIGHT EXPRESS: Petrea Sues Over Unpaid OT Wages, Retaliation
NATIONWIDE MOTOR: Coady, et al., Seek to Certify FLSA Collective
NATIONWIDE MUTUAL: Amended Scheduling Order Entered in Smith
NEW YORK, NY: Leslie Bid for Class Status Nixed w/o Prejudice
NEW YORK: Cardew, et al., Seek to Stay Class Cert. Bid Deadline
NORTH STAR INSURANCE: Abramson Files TCPA Suit in W.D. Pennsylvania
OAK PARK PLACE: Scheduling Order Entered in Ricker Class Action
PAYSAFE PAYMENT: Order Adopting Schedule Entered in Bitmouni Suit
PEPSICO INC: Irving Labor Suit Moved From E.D. Mo. to S.D.N.Y.
PORTOLA PHARMACEUTICALS: Hearing on Class Certification Vacated
RAPID FINANCIAL: Updated Scheduling Order in Watkins Suit Approved
ROBERT HAMMER: Extension of Class Cert Briefing Deadlines Sought
SANTANDER BANK: Settlement in Tepper Suit Gets Initial Approval
SIMONE SUBAL GALLERY: Jackson Files ADA Suit in S.D. New York
SLACK TECHNOLOGIES: Faces Consolidated Class Action
SLACK TECHNOLOGIES: Faces Securities Suits in CA Court
SOLA SALON: Brown Files ADA Suit in S.D. New York
SPINNAKER RESORTS: Preliminary Pretrial Order Entered in Dudas
STATE FARM: Colorado Court Dismisses RTP Suit Without Prejudice
STATE FARM: Seeks June 30 Extension to File Class Cert Response
SURNAIK HOLDINGS: Loses Bid for Writ of Prohibition in Snider Suit
TALEN ENERGY: Non-Debtor Defendants Seek Leave to File Sur Reply
UNILEVER US: Taylor Bid to Certify Class Denied as Moot
UPHOLD HQ: Sandoval Suit Referred to Magistrate for Pretrial Mgmt.
USA QR: Liang Suit Seeks Unpaid Minimum Wages Under FLSA, NYLL
VALUE SERVICE: Taveras Seeks Minimum Wages & OT Wages Under FLSA
VENTURE HOME: Court Grants Bid to Compel Arbitration in James Suit
VOLKSWAGEN GROUP: Scheduling Order Amended in Connelly Suit
VTECH HEALTHCARE: Conditional Status of FLSA Collective Sought
VVF INTERVEST: Parties Seek to Conditionally Certify Class
VXI GLOBAL: Colleton Seeks to Recover Penalties Under PAGA
WASTE MANAGEMENT: Sued Over Artificially Inflated Senior Notes
WHITE CUBE INC: Jackson Files ADA Suit in S.D. New York
WHOLESOME SPIRITS: Martinez Files ADA Suit in E.D. New York
WILLAMETTE VALLEY: Kelley Suit Seeks to Modify Scheduling Order
WILSON LOGISTICS: Seeks Extension to File Class Cert. Response
*********
ALFI INC: Faces Kleinschmidt Shareholder Suit in Florida Court
--------------------------------------------------------------
Alfi, Inc. disclosed in its Form 10-Q Report for the quarterly
period ended March 31, 2022, filed with the Securities and Exchange
Commission on May 19, 2022, that on December 15, 2021, the company,
certain of its present and former officers and directors, and the
underwriters in the company's IPO were named as defendants in a
putative class action styled "Kleinschmidt v. Alfi, Inc., et al.,"
Case No. 1:21-cv-24338, brought in the United States District Court
for the Southern District of Florida.
The complaint in said action alleges that the company and other
named defendants violated Sections 11 and 15 of the Securities Act
of 1933, with respect to allegedly false and misleading statements
included in the registration statement and prospectus supplements
issued in connection with the company's IPO in May 2021 and
Sections 10(b) and 20(a) of the Securities Exchange Act of 1934 and
Rule 10b-5 by allegedly making false and materially misleading
statements and failing to disclose material adverse facts in the
company's public filings with the Securities and Exchange
Commission. Said complaint assert that the putative plaintiff class
includes persons or entities, other than the defendants, who
purchased or acquired the common stock or warrants to purchase the
common stock pursuant and/or traceable to the Offering Documents
and persons or entities, other than the defendants, who purchased
or acquired the company's securities between May 4, 2021, and
November 15, 2021.
The plaintiffs seek unspecified compensatory damages, including
interest, and costs and expenses, including attorney's and expert
fees.
In February 3, 2022, the court consolidated the action under Case
No. 21-cv-24232-KMW.
Alfi, Inc. operates in the technology sector, specifically,
"software as a service" in the "digital out of home smart
advertising" segment. This segment includes artificial
intelligence, machine & deep learning, edge computing, big data,
telecommunications, and the "internet of things."
ALFI INC: Faces Steppacher Shareholder Suit in Florida
-------------------------------------------------------
Alfi, Inc. disclosed in its Form 10-Q Report for the quarterly
period ended March 31, 2022, filed with the Securities and Exchange
Commission on May 19, 2022, that on December 2, 2021, the company
and certain of its present and former officers and directors were
named as defendants in a putative class action lawsuit styled
"Steppacher v. Alfi, Inc., et al.," Case No. 1:21-cv-24232, brought
in the United States District Court for the Southern District of
Florida.
The complaint in said action alleges that the company and other
named defendants violated Sections 11 and 15 of the Securities Act
of 1933, with respect to allegedly false and misleading statements
included in the registration statement and prospectus supplements
issued in connection with the company's IPO in May 2021 and
Sections 10(b) and 20(a) of the Securities Exchange Act of 1934 and
Rule 10b-5 by allegedly making false and materially misleading
statements and failing to disclose material adverse facts in the
company's public filings with the Securities and Exchange
Commission. Said complaint assert that the putative plaintiff class
includes persons or entities, other than the defendants, who
purchased or acquired the common stock or warrants to purchase the
common stock pursuant and/or traceable to the Offering Documents
and persons or entities, other than the defendants, who purchased
or acquired the company's securities between May 4, 2021, and
November 15, 2021.
The plaintiffs seek unspecified compensatory damages, including
interest, and costs and expenses, including attorney's and expert
fees.
In February 3, 2022, the court consolidated the action under Case
No. 21-cv-24232-KMW
Alfi, Inc. operates in the technology sector, specifically,
"software as a service" in the "digital out of home smart
advertising" segment. This segment includes artificial
intelligence, machine & deep learning, edge computing, big data,
telecommunications, and the "internet of things."
ALLSTATE PROPERTY: Class Status Hearing Set for August 23-24
------------------------------------------------------------
In the class action lawsuit captioned as Durgin v. Allstate
Property & Casualty Insurance, Co., Case No. 6:19-cv-00721 (W.D.
La.), the Hon. Judge Carol B. Whitehurst entered an electronic
order after discussion with counsel.
The Court will hold an evidentiary hearing on the plaintiff's
Motion for Class Certification on Tuesday and Wednesday, August
23-24, 2022. The hearing will begin each morning at 10:00 a.m.
The nature of suit states Torts -- Personal Property -- Other
Personal Property Damage.[CC]
AM COMMUNICATIONS: Class Cert. Deadlines & Schedules Extended
-------------------------------------------------------------
In the class action lawsuit captioned as Grant v. AM
Communications, LTD, et al., Case No. Miroslav Lovric (N.D.N.Y.),
the Hon. Judge entered an order granting the request in status
report insofar as and to the extent that the deadlines and
schedules are extended as follows:
-- All Discovery, Merits and Class Certification shall be
completed by Sept. 1, 2022;
-- The Class Certification Motion and Dispositive Motions
shall be filed by Oct. 3, 2022.
-- The parties are directed to file next status reports by
Aug. 1, 2022.
The suit alleges violation of the Fair Labor Standards Act
involving collection of unpaid wages.
AM Communications is an installation services provider.[CC]
AMAZON.COM SERVICES: Parties Seeks to Modify Scheduling Order
-------------------------------------------------------------
In the class action lawsuit captioned as JAVIER DEL RIO, COLIN
MEUNIER, and AARON DELAROCHE, on behalf of themselves and other
similarly situated Employees, v. AMAZON.COM SERVICES, INC.,
AMAZON.COM.DEDC, LLC, and AMAZON.COM, INC., Case No.
3:21-cv-01152-KAD (D. Conn.), the Parties filed joint motion to
modify the scheduling order as follows:
Deadline Current Requested
Modification
Pre-Class Certification June 30, 2022 Sept. 2, 2022
Discovery:
Plaintiff's Motion for July 30, 2022 Oct. 7, 2022
Class Certification:
Defendants' Motion for July 30, 2022 Oct. 7, 2022
Summary Judgment:
Amazon provides e-commerce services.
A copy of the Parties' motion dated June 14, 2022 is available from
PacerMonitor.com at https://bit.ly/3mMYuCb at no extra charge.[CC]
The Plaintiffs are represented by:
Richard E. Hayber, Esq.
HAYBER, McKENNA & DINSMORE, LLC
750 Main Street, Suite 904
Hartford, CT 06103
Telephone: (860) 522-8888
Facsimile: (860) 218-9555
E-mail: rhayber@hayberlawfirm.com
The Defendants are represented by:
Stephen Rosenberg, Esq.
Joshua B. Waxman, Esq.
Martha J. Keon, Esq.
LITTLER MENDELSON P.C
One Century Tower
265 Church Street, Suite 300
New Haven, CT 06510
Telephone: (203) 974-8700
Facsimile: (203) 974-8799
E-mail: sprosenberg@littler.com
jwaxman@littler.com
mkeon@littler.com
AMC ENTERTAINMENT: Delinquently Pays Wages, Pope Class Suit Says
----------------------------------------------------------------
ROBERT POPE, individually and on behalf of others similarly
situated, v. AMC ENTERTAINMENT HOLDINGS, INC., Case No.
1:22-cv-03419 (E.D.N.Y., June 9, 2022) seeks to recover damages for
delinquent wage payments made to workers who qualify as manual
laborers and who were employed by the Defendant between October 24,
2015 and the present in the State of New York pursuant to New York
Labor Law.
According to the complaint, the Defendant has compensated all its
employees on a bi-weekly (every other week) basis, regardless of
whether the employees qualified as manual laborers under the NYLL.
AMC Entertainment is an American movie theater chain headquartered
in Leawood, Kansas.[BN]
The Plaintiff is represented by:
Brett R. Cohen, Esq.
Jeffrey K. Brown, Esq.
Michael A. Tompkins, Esq.
LEEDS BROWN L W, P.C.
One Old Country Road, Suite 347
Carle Place, NY 11514
Telephone: (516) 873-9550
AMERICAN BAR: Disclosed Info Without Consent, Crane Suit Alleges
----------------------------------------------------------------
MARK CRANE, individually and on behalf of all others similarly
situated, Plaintiff v. AMERICAN BAR ASSOCIATION, Defendant, Case
No. 2:22-cv-11267-TGB-CI ECF (E.D. Mich., June 8, 2022) is a class
action against the Defendant for its intentional and unlawful
disclosure of its customers' Private Reading Information in
violation of the Michigan's Preservation of Personal Privacy Act.
According to the complaint, the Defendant rented, exchanged, and
disclosed detailed information about the Plaintiff's American Bar
Association Journal magazine subscription to data aggregators, data
appenders, data cooperatives, and list brokers, among others, which
in turn disclosed his information to aggressive advertisers,
political organizations, and non-profit companies. As a result, the
Plaintiff has received a barrage of unwanted junk mail.
By renting, exchanging, and otherwise disclosing the Plaintiff's
Private Reading Information during the relevant pre-July 31, 2016
time period, violated the Michigan's Preservation of Personal
Privacy Act, says the suit.
AMERICAN BAR ASSOCIATION operates as a non-profit organization. The
Organization provides law school accreditation, legal education,
and lawyers and judges assistance programs to lawyers, law
students, and other legal professionals. [BN]
The Plaintiff is represented by:
E. Powell Miller, Esq.
Sharon S. Almonrode, Esq.
Dennis A. Lienhardt, Esq.
William Kalas, Esq.
THE MILLER LAW FIRM, P.C.
950 W. University Drive, Suite 300
Rochester, MI 48307
Telephone: (248) 841-2200
Email: epm@millerlawpc.com
ssa@millerlawpc.com
dal@millerlawpc.com
wk@millerlawpc.com
-and-
Joseph I. Marchese, Esq.
Philip L. Fraietta, Esq.
BURSOR & FISHER, P.A.
888 Seventh Avenue
New York, NY 10019
Telephone: (646) 837-7150
Facsimile: (212) 989-9163
Email: jmarchese@bursor.com
pfraietta@bursor.com
-and-
Frank S. Hedin, Esq.
Arun G. Ravindran, Esq.
HEDIN HALL LLP
1395 Brickell Avenue, Suite 1140
Miami, FL 33131
Telephone: (305) 357-2107
Facsimile: (305) 200-8801
Email: fhedin@hedinhall.com
aravindran@hedinhall.com
AMGUARD INSURANCE: Court Dismisses Amir Class Suit With Prejudice
-----------------------------------------------------------------
In the case, Musaid Amir, et al., Plaintiffs v. AmGuard Insurance
Company, Defendant, Case No. 21-12457 (E.D. Mich.), Judge Sean F.
Cox of the U.S. District Court for the Eastern District of
Michigan, Southern Division, grants the Defendant's Motion for
Judgment on the Pleadings and dismisses the action.
I. Introduction
The three named Plaintiffs in the putative class action own or rent
residential properties in Michigan that were insured by the
Defendant insurance company. The Plaintiffs allege that they
purchased "flood insurance" from the Defendant, that their
basements then flooded on June 26, 2021 after a heavy rainfall, but
that the Defendant refused to pay their insurance claims. The
Plaintiffs assert breach of contract claims, based on the insurer's
denial of their claims, along with fraud, innocent
misrepresentation, silent fraud, and promissory estoppel claims
under Michigan law.
The matter is currently before the Court on the Defendant's Motion
for Judgment on the Pleadings. The parties have briefed the issues
and the Court heard oral argument on May 26, 2022.
II. Background
Acting through counsel, Plaintiffs Musaid Amir, Zead Rammouni, and
Ali Yahya, filed the putative class action against Defendant
AmGuard. The Defendant removed the action to the Court based upon
diversity jurisdiction. Each of them obtained a homeowners
insurance policy from the Defendant and allege that they
experienced flooding of their basements on the same date -- June
26, 2021.
The Plaintiffs' "Class Action Complaint And Jury Demand" states
that it is "brought on behalf of current and future insureds who
have entered into contractual agreements whereby the Defendant
represented that it was providing coverage for flood as that term
is commonly understood." It includes the following five causes of
action: 1) "Fraud," 2) "Innocent Misrepresentation," 3) "Silent
Fraud," 4) "Breach of Express Contract," and 5) "Promissory
Estoppel."
The Plaintiffs' "Fraud" count alleges that the Defendant "acting
through its agents made material representations regarding the
nature and scope of its insurance coverage." They allege that the
"Defendant's material representations were false" and that "when
the Defendant made the material representations it knew that they
were false, or made it recklessly, without any knowledge of its
truth and as a positive assertion." The Plaintiffs allege that the
"Defendant made the material representations with the intention
that they should be acted upon by Plaintiffs." They allege that
they "acted in reliance upon the Defendant's material
representations" and that they "suffered injury as a result of
Defendant's material representations."
The Plaintiffs' "Innocent Misrepresentation" count alleges that the
"Defendant acting through its agents made material representations
in transaction between it and the Plaintiffs," that the
"Defendant's material representations were false," and that the
"Defendants material representations actually deceived Plaintiffs."
The Plaintiffs allege that they "relied upon the Defendant's
material representations," and that the "Defendant benefitted from
its material representations by collecting insurance premiums for
coverage that it would never provide thereby selling illusory
insurance coverage to the Plaintiffs." They allege that they
"suffered injury as a result of the Defendant's material
representations, and that the "Plaintiffs acted in reliance upon
Defendant's material representations."
The Plaintiffs' "Silent Fraud" count alleges that the "Defendant
failed to disclose a material fact about the subject matter at
issue, namely that the purported flood insurance coverage that it
sold to the Plaintiffs would not provide actual coverage for a
flood as that term is commonly understood." They allege that the
"Defendant knew that the purported flood insurance coverage that
the Defendant sold to the Plaintiffs would not provide actual
coverage for a flood as that term is commonly understood." They
allege that the "Defendant's failure to disclose that the purported
flood insurance coverage that it sold to them would not provide
actual coverage for a flood as that term is commonly understood
gave the Plaintiffs a false impression that the flood insurance
coverage that it sold to them would in fact provide actual coverage
for a flood as that term is commonly understood." The Plaintiffs
allege that they "in fact relied upon the false impression created
by the Defendant" and that they "suffered damages as a result of
relying upon the false impression created by it."
The "Breach Of Express Contract" count alleges that "contracts
existed between the Plaintiffs and the Defendant whereby it agreed
to provide the Plaintiffs coverage for flood damage to their
respective properties" and that the Defendant breached those
contracts "by refusing to provide them coverage for flood damage to
their respective properties." The Plaintiffs allege that the
"Defendant's breach of said contracts resulted in damages to the
Plaintiffs' respective properties."
The Plaintiffs' "Promissory Estoppel" count alleges that the
"Defendant promised to provide the Plaintiffs coverage for flood
damage to their respective properties," that the Defendant "should
reasonably have expected to induce action of definite and
substantial character by the Plaintiffs," and that the "Defendant
in fact produced reliance or forbearance of that nature in
circumstances such that the promise must be enforced if injustice
is to be avoided."
The December 2, 2021 Scheduling Order in the case provides, among
other things, that any amendments to the pleadings had to be made
by Jan. 13, 2022. The Plaintiffs did not seek to file an amended
complaint.
On Feb. 3, 2022, the Defendant filed a "Motion For Judgment On The
Pleadings."
III. Analysis
A. Fraud, Silent Fraud, And Innocent Misrepresentation Claims
The Defendant contends that it is entitled to dismissal of the
Plaintiffs' extra-contractual claims of fraud, silent fraud, and
innocent misrepresentation because those claims are not pled with
particularity, as is required under Fed. R. Civ. P. 9(b).
Judge Cox agrees. He holds that (i) the Plaintiffs have failed to
allege their fraud counts with that required particularity; (ii)
the Plaintiffs' innocent misrepresentation count alleges that the
"Defendant acting through its agents made material representations
in transactions" with Plaintiffs that "were false," but their
complaint fails to include any supporting factual allegations as to
the time, place, or content of any such representations; and (iii)
the Plaintiffs fail to address the challenges made to their silent
fraud claims and the Plaintiffs do not plead facts that would
support a duty to disclose. Accordingly, Judge Cox dismisses the
Plaintiffs' fraud, silent fraud, and innocent misrepresentation
claims.
B. Breach of Contract Claims
The Defendant contends that it is entitled to judgment on the
pleadings as to the Plaintiffs' breach of contract claims. In
response to the Defendant's challenge to the breach of contract
claims, the Plaintiffs make several arguments in their response
brief that are non-starters and are rejected by the Court.
Judge Cox holds that (i) the Defendant's motion attached copies of
the insurance contracts at issue as exhibits to the motion and the
Plaintiffs did so too; (ii) because the insurance contracts are
central to the Plaintiffs' breach of contract claims, and
referenced in the complaint, the Court can consider those contracts
in evaluating the pending Motion for Judgment on the Pleadings; and
(iii) the Plaintiffs' complaint does not include any factual
allegations that would tend to show that their claims are covered
under the above endorsement. Judge Cox therefore finds that the
Plaintiffs have failed to plausibly allege a breach of contract
claim against the Defendants.
C. Promissory Estoppel Claims
The Defendant contends that it is entitled to judgment on the
pleadings as to the Plaintiffs' promissory estoppel claims because:
1) it is undisputed that valid, enforceable insurance contracts
exist between the parties; and 2) and any alleged oral promises
would contradict the clear, binding language of those policies. As
to that second part of that challenge, the Defendant's motion
states that the Plaintiffs' promissory estoppel claims fail because
"the clear language of the Homeowners Policies precludes coverage
for Plaintiffs' claimed damages, which Policies, including the
Water Exclusions, the Plaintiffs are presumed to have read.
In responding to the Defendant's motion, the Plaintiffs ignore the
second part of this challenge and their response to the first part
of the challenge fails to save this claim. Their complaint asserts
a breach of contract claim against Defendants based upon the
insurance contracts. Nevertheless, in response to the Defendant's
motion, the Plaintiffs take the position that their contracts may
not be valid and enforceable because of the doctrine of illusory
coverage.
Judge Cox finds that the Plaintiffs' promissory estoppel claim is
based on the allegation that the "Defendant promised to provide the
Plaintiffs coverage for flood damage to their respective
properties." The complaint does not include any factual allegations
as to who made the alleged promises to the three named Plaintiffs
on behalf of the Defendant, or the words used to make those alleged
promises. Assuming arguendo that some agent or employee of
Defendant told the Plaintiffs that the insurance contracts provide
coverage for flood damage, the circumstances surrounding such a
statement would preclude an objective finding of a clear and
definite promise of such coverage, and reasonable reliance on same,
because the insurance policies expressly contradict such a
statement. Accordingly, the Plaintiffs have not plausibly alleged a
promissory estoppel claim under Michigan law.
IV. Conclusion & Order
For the reasons he set forth, Judge Cox grants the Defendant's
Motion for Judgment on the Pleadings and dismisses action with
prejudice.
A full-text copy of the Court's June 8, 2022 Opinion & Order is
available at https://tinyurl.com/yu5vhycb from Leagle.com.
APEX CLEARING: Chavez Suit Moved From S.D.N.Y. to S.D. Florida
--------------------------------------------------------------
The case styled ERIK CHAVEZ and PETER JANG, individually and on
behalf of all others similarly situated v. APEX CLEARING
CORPORATION, Case No. 1:22-cv-01233, was transferred from the U.S.
District Court for the Southern District of New York to the U.S.
District Court for the Southern District of Florida on June 8,
2022.
The Clerk of Court for the Southern District of Florida assigned
Case No. 1:22-cv-21747-CMA to the proceeding.
The case arises from the Defendant's alleged negligence, breach of
fiduciary duty, breach of the implied covenant of good faith and
fair dealing, and tortious interference with business relationship
by implementing a unilateral, one-way trading suspension of stocks
for AMC Entertainment Holdings, Inc. (AMC), GameStop Corporation
(GME), and Koss Corporation (KOSS) for approximately three hours,
causing the price of the suspended stocks to spiral downward to
artificially suppressed prices by allowing selling to continue.
Apex Clearing Corporation is a broker-dealer with a principal place
of business at One Dallas Center, 350 N. St. Paul, Suite 1300,
Dallas, Texas. [BN]
The Plaintiffs are represented by:
Gary S. Graifman, Esq.
KANTROWITZ, GOLDHAMER & GRAIFMAN, P.C.
747 Chestnut Ridge Road
Chestnut Ridge, NY 10977
Telephone: (845) 356-2570
Facsimile: (845) 356-4335
E-mail: ggraifinan@kgglaw.com
- and –
Peter Safirstein, Esq.
SAFIRSTEIN LAW LLC
45 N. Broad Street, Suite 100
Ridgewood, NJ 07450
Telephone: (917) 952-9458
E-mail: psafirstein@safirsteinlaw.com
APPLE INC: Consolidated Processor Suit Dismissed W/ Leave to Amend
------------------------------------------------------------------
In the case, IN RE APPLE PROCESSOR LITIGATION, Case No.
18-cv-00147-EJD (N.D. Cal.), Judge Edward J. Davila of the U.S.
District Court for the Northern District of California, San Jose
Division, grants Apple's Motion to Dismiss Plaintiffs' Second
Consolidated Amended Complaint.
I. Introduction
The putative class action Plaintiffs are purchasers or lessors of
certain Apple products, such as iPhones, iPads, and the Apple TV
("iDevices"), each containing a processor that the Plaintiffs
allege suffers from a design defect that allows unauthorized third
parties to access sensitive user data. The Plaintiffs bring the
lawsuit against Defendant Apple, alleging that they paid more for
their iDevices than they were worth because Apple knowingly omitted
the defect; the value of Plaintiffs' products has diminished; and
Apple's attempts to mitigate the defects with patches through
software updates materially slowed down the performance of their
iDevices.
Apple has filed a renewed motion to dismiss the Plaintiffs' second
consolidated amended complaint ("SCAC") with prejudice under
Federal Rule of Civil Procedure 12(b)(6) for inadequate pleading of
their misrepresentation, omission, restitution, and injunctive
relief claims.
II. Background
The Plaintiffs are Jennifer Abrams (CA), Anthony Bartling (NH),
Robert Giraldi (NY), and Jacqueline Olson (NY) who, on behalf of
themselves and all others similarly situated, allege that the
iDevices all contain a central processing unit that is defective.
The Plaintiffs bring their class action pursuant to Federal Rule of
Civil Procedure 23 and seek to represent a class that consists of:
All persons in the United States who purchased or leased from Apple
and/or its authorized retailer sellers one or more iPhones, iPads,
Apple TVs, or other products containing processors designed or
modified by Apple, at any time since Jan. 1, 2010.
The Plaintiffs also seek to represent three subclasses: the
"California Subclass," the "New Hampshire Subclass," and the "New
York Subclass." These classes are comprised of members who
purchased such iDevices within their respected states.
Defendant Apple is a business incorporated in Delaware with a
principal place of business in Cupertino, California. Apple
designs, manufactures, distributes, and sells products including
the iDevices and other computing devices that contain processors.
On June 8, 2018, the Plaintiffs filed a consolidated amended
complaint against Apple alleging sixteen causes of action. On Aug.
7, 2018, Apple filed a motion to dismiss, which the Court granted
on standing grounds with leave to amend. On Feb. 21, 2019, the
Plaintiffs filed the Second Consolidated Amended Complaint,
asserting seven causes of action. Apple again moved to dismiss the
Plaintiffs' SCAC for lack of standing or any cause of action, which
the Court granted again on standing grounds without leave to amend
and entered judgment in favor of Apple.
On appeal, a Ninth Circuit panel held that the Plaintiffs had
sufficiently pled standing but expressly declined to address
Apple's Rule 12(b)(6) arguments, leaving that task to the Court in
the first instance. On remand, the parties stipulated to renewed
and updated briefing on Apple's 12(b)(6) defenses, which is
presently before the Court.
III. Discussion
The Plaintiffs bring seven counts against Apple in the SCAC,
asserting causes of action arising from California, New York, New
Hampshire, and common law. The Plaintiffs' Counts I, III, IV, V,
and VII allege violations of the California Consumers Legal
Remedies Act ("CLRA"), the New Hampshire Consumer Protection Act
("NHCPA"), two sections of the New York General Business Law
("GBL"), and common law fraud, respectively. Because these claims
are all grounded in the same unified course of fraudulent conduct,
the Court refers to these five Counts collectively as the
Plaintiffs' "Fraud Claims" and apply Rule 9(b)'s heightened
pleading requirements to all five Counts.
The Plaintiffs also seek equitable restitution under Cal. Bus. &
Prof. Code Section 17200 ("UCL") as Count II and for unjust
enrichment as Count VI. Additionally, they seek injunctive relief
for their CLRA and UCL claims for Apple to be "permanently enjoined
and restrained from continuing and maintaining the violations
alleged."
A. Fraud Claims
The Plaintiffs assert fraud-based claims under the CLRA, the New
York GBL, and the NHCPA. These theories of fraud are based on both
affirmative misrepresentation and material omissions. Apple argues
that, with respect to all of the Plaintiffs' Fraud Claims, the SCAC
fails to allege at least three necessary elements: An actionable
misrepresentation (either made affirmatively or by omission),
reliance, and damages.
Judge Davila holds that the Plaintiffs have failed to allege an
affirmative misrepresentation, an actionable omission, and actual
reliance, so does not reach Apple's arguments on damages. First, he
finds that because the Plaintiffs are unable to identify any
statement from Apple that is both sufficiently specific to be
actionable and was false when made, the Plaintiffs have failed to
state a claim for fraud under an affirmative misrepresentation
theory. Second, he finds that even if the Plaintiffs had specified
that the Defects arose during their warranty periods, they have
failed to allege facts that show the Defects were central to the
iDevices' function.
Third, Judge Davila finds that the Plaintiffs have failed to state
a claim for fraud under either an affirmative misrepresentations
theory or an omissions theory, and their Fraud Claims may be
dismissed on those grounds alone. However, he notes that the
Plaintiffs have also failed to adequately plead actual reliance on
their theories of Apple's affirmative statements or omissions.
Because the Plaintiffs have failed to plead an actionable
misrepresentation, omission, or actual reliance, Judge Davila
grants Apple's motion to dismiss the Plaintiffs' Fraud Claims,
i.e., Counts I, III, IV, V, and VII. Although this is the third
motion to dismiss that the Court has granted, the previous orders
did not address the substantive sufficiency of the Plaintiffs'
claims, and Judge Davila cannot determine that the presently
identified deficiencies are incurable. Accordingly, he grants the
Plaintiffs leave to amend the SCAC as to these Counts.
B. Equitable Relief Claims
In addition to the Fraud Claims, the SCAC asserts two other claims
for equitable relief: A UCL claim for restitution and injunctive
relief (Count II) and a common law unjust enrichment claim for
restitution (Court VI). With respect to their unjust enrichment
claim, the Plaintiffs "seek appropriate monetary relief" and "the
establishment of a constructive trust, in a sum certain, of all
monies charged and collected." Regarding injunctive relief, the
Plaintiffs have pled that they are entitled to injunctive relief
and seek "[t]hat Defendant be permanently enjoined and restrained
from continuing and maintaining the violations alleged" but do not
otherwise specify what kind of injunction they are seeking.
Because of the foregoing deficiencies with the Plaintiffs' unjust
enrichment claim, Judge Davila grants Apple's motion to dismiss
Count VI. As with the Fraud Claims, he cannot conclude that these
deficiencies are incurable through additional amendment.
Accordingly, he permits the Plaintiffs leave to amend the SCAC as
to Count VI.
Because the Plaintiffs have failed to state a claim under any of
the three UCL prongs, Judge Davila grants Apple's motion to dismiss
Count II of the SCAC pertaining to the Plaintiffs' UCL claim. He
cannot determine that the Plaintiffs' UCL claim would be incurable
with further allegations and grants the Plaintiffs leave to amend
the SCAC as to Count II.
IV. Conclusion
For the foregoing reasons, Apple's Motion to Dismiss Plaintiffs'
Second Consolidated Amended Complaint is granted. All Counts in the
SCAC are dismissed with leave to amend. The Plaintiffs may file and
serve an amended complaint no later than June 30, 2022.
A full-text copy of the Court's June 8, 2022 Order is available at
https://tinyurl.com/2p99tbd9 from Leagle.com.
AVALONBAY COMMUNITIES: Williams Labor Code Suit Goes to C.D. Cal.
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The case styled CHRISTINA WILLIAMS, individually and on behalf of
all others similarly situated v. AVALONBAY COMMUNITIES, INC., and
DOES 1 through 100, inclusive, Case No. 22STCV14614, was removed
from the Superior Court in the State of California for the County
of Los Angeles to the U.S. District Court for the Central District
of California on June 8, 2022.
The Clerk of Court for the Central District of California assigned
Case No. 2:22-cv-03933 to the proceeding.
The case arises from the Defendant's alleged violations of the
California Labor Code and the California's Business and Professions
Code including failure to pay minimum wages, failure to pay
overtime wages, failure to pay timely wages, failure to pay timely
wages, failure to provide meal breaks, failure to provide rest
periods, failure to provide accurate itemized wage statements,
failure to reimburse business expenses, and unlawful business
practices.
AvalonBay Communities, Inc. is a real estate investment trust
company, headquartered in Arlington, Virginia. [BN]
The Defendant is represented by:
Michael S. Kun, Esq.
Kevin D. Sullivan, Esq.
EPSTEIN BECKER & GREEN, P.C.
1925 Century Park East, Suite 500
Los Angeles, CA 90067
Telephone: (310) 556-8861
Facsimile: (310) 553-2165
E-mail: mkun@ebglaw.com
ksullivan@ebglaw.com
BGLG INC: Slade Files ADA Suit in S.D. New York
-----------------------------------------------
A class action lawsuit has been filed against BGLG, Inc. The case
is styled as Linda Slade, individually and as the representative of
a class of similarly situated persons v. BGLG, Inc. doing business
as: Goby, Case No. 1:22-cv-04740 (S.D.N.Y., June 7, 2022).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
BGLG, Inc. doing business as Goby -- http://www.goby.co/-- engages
in the design, manufacture, and marketing of electronic
toothbrushes.[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
BLACK DIAMOND: Class Settlement in Borelli Suit Has Final Approval
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In the case, Edward Borelli, et al., Plaintiffs v. Black Diamond
Aggregates, Inc., et al., Defendants, Case No.
2:14-cv-02093-KJM-KJN (E.D. Cal.), Judge Kimberly J. Mueller of the
U.S. District Court for the Eastern District of California grants
the Plaintiffs' motion for class certification and motion for final
approval of a settlement agreement.
I. Background
According to the operative complaint, Black Diamond used a
compensation scheme that paid drivers less than minimum wages and
wrongfully withheld pay for required rest breaks and other working
time. The complaint also includes claims for wrongfully withheld
meal breaks, faulty pay stubs, and related wage and hour claims,
among others. It seeks certification of a class action as well as a
collective action under the federal Fair Labor Standards Act
(FLSA).
Black Diamond successfully moved to compel arbitration in 2017. The
Court also compelled Basic Resources to participate in the
arbitration, finding the two companies were alter egos. While the
arbitration was still ongoing, the parties participated in
mediation with Lisa Klerman, a mediator whom California district
courts have described as experienced and well-respected in wage and
hour class actions. The parties eventually reached an agreement to
settle on behalf of all former Black Diamond truck drivers with the
same wage and hour claims.
The agreement creates three overlapping subclasses of former Black
Diamond employees: One with claims under California labor law, a
second with federal FLSA claims, and a third with claims under the
California Private Attorneys General Act (PAGA). In total the class
includes 85 drivers who worked at Black Diamond between 2010 and
2014, when the company ceased operations. Black Diamond and Basic
Resources agree to pay $340,000 to settle these claims. Of that
sum, the parties agree that up to $112,000 may cover attorneys'
fees, $12,000 may be allocated to costs, and $7,500 will be paid to
each of the three named plaintiffs as service awards.
The parties estimate $5,200 will be paid to administer the
settlement. The settlement amount will be reduced by any resulting
payroll taxes, approximately $11,300, and a $7,500 payment to the
California Labor and Workforce Development Agency (LWDA), as
required by the California Labor Code. These deductions would
result in a net settlement amount of approximately $169,300,
slightly less than half the gross. The settlement administrator
estimates the total net settlement amount is slightly lower:
$167,167.50.
The parties proposed that notice be given to class members and
money distributed from the net settlement fund using the contact
information in Black Diamond's employment records. Members of the
putative Rule 23 subclass could opt out or object; members of the
FLSA collective action were required to either opt in or have
consent as provided in the FLSA; and membership in the PAGA
subclass is automatic under California law. No class member would
receive less than $25.00. The parties proposed that any unclaimed
funds be paid cy pres to the Salvation Army in Modesto.
The Court preliminarily approved the proposed settlement. First, it
found the proposed Rule 23 class was likely to both meet the four
prerequisites of Rule 23(a), and to satisfy the requirements of
Rule 23(b)(3). Second, a significant portion of the difference
between the net award and the maximum potential award flowed "from
the subtraction of $112,200 in fees, $22,500 in incentive awards,
and $12,000 in estimated costs. Third, the 33% fee award made up a
relatively large percentage of the total gross award, higher than
the 25% benchmark against which such awards are normally measured.
Fourth, the proposed incentive awards raised concerns. The named
Plaintiffs would receive $7,500, more than the average recovery
amount. Finally, the Court certified the proposed FLSA collective
action on a preliminary basis for the same reasons, and approved
the parties' proposed notice.
Notice was then sent to the proposed class members. None objected
to the proposed class action, none opted out, and only one claimant
disputed the worksheets used to calculate the pro rata awards. The
average recovery per proposed class member would be a little more
than $2,000. The maximum recovery would be almost $6,000, to
Christiana Pitassi, one of the named Plaintiffs, and no class
member would receive less than $25. The other two named Plaintiffs
would receive $1,305.36 and $5,172.62, respectively.
The Plaintiffs now move for final approval and certification, and
they request an attorneys' fee award of $112,200, the maximum fee
to which the defendants agreed not to object. The counsel also has
lodged confidential copies of the parties' mediations briefs, which
the Court has reviewed in camera. The Defendants do not oppose
these motions. The Court held a hearing on Oct. 8, 2021. Harvey
Sohnen appeared for the plaintiffs, Barbara Cotter appeared for
Black Diamond, and Bryan Hawkins appeared for Basic Resources.
II. Discussion
A. Rule 23 Class
"Rule 23 governs class certification." "As a threshold matter, a
class must first meet the four requirements of Rule 23(a): (1)
numerosity, (2) commonality, (3) typicality, and (4) adequacy of
representation." "In addition, the class must meet the requirements
of at least one of the `three different types of classes' set forth
in Rule 23(b)." For classes proposed under Rule 23(b)(3), such as
the proposed class in the case, "a court must find that 'the
questions of law or fact common to class members predominate over
any questions affecting only individual members, and that a class
action is superior to other available methods for fairly and
efficiently adjudicating the controversy.'"
For the reasons explained in the Court's previous order, Judge
Mueller holds that the proposed classes meet the requirements of
Rule 23. No new evidence or other developments suggest otherwise.
No proposed class member has objected or opted out. The proposed
class is certified.
As when the Court granted the motion for preliminary approval,
several aspects of the proposed settlement agreement weigh in favor
of approving it finally. First, the named Plaintiffs have
represented the class adequately. Second, the mediation that
produced the proposed settlement agreement bears several hallmarks
of arm's-length negotiations. Third, the method the settlement
agreement uses to distribute the net award is objective and lends
support to counsel's claim that the agreement treats class members
equitably. Fourth, the settlement agreement offers class members
monetary compensation sooner than they would receive it if the case
were litigated through the completion of arbitration, the judicial
action, any motion practice related to confirmation of the
arbitration, and any appeals.
Fifth, Judge Mueller holds that the settlement agreement permits
the class members to receive a certain sum now rather than an
uncertain sum later. After considering the parties' confidential
mediation briefs and counsel's analysis, she is satisfied that the
total value of the proposed settlement is not so steeply discounted
that it is not "adequate" under Rule 23(e)(2). She also finds the
settlement agreement to be reasonable despite the substantial
incentive awards to the named Plaintiffs. The proposed cost
reimbursement is also reasonable. The amount, $11,307.99, is modest
for a case of so many years' duration.
Finally, only one of the three commonly cited "red flags" of
collusion might be cause for concern: The parties' clear-sailing
agreement. Judge Mueller is persuaded, however, after reviewing the
parties' supplemental submissions, that the risk of collusion is
low despite the Defendants' agreement not to contest the proposed
attorneys' fees, costs, and incentive awards. The agreed amounts
are relatively modest, and any amounts not awarded would revert to
the class.
B. FLSA Collective Action
For the reasons she discussed, Judge Mueller also approves the
terms of the proposed FLSA collective action settlement. She finds
that the members of the proposed collective action assert
violations of the FLSA, are "similarly situated," have
affirmatively opted in, and the dispute is "bona fide" under the
commonly applied test.
C. PAGA Claims
The PAGA provides that courts may exercise their discretion to
lower the amount of civil penalties awarded "if, based on the facts
and circumstances of the particular case, to do otherwise would
result in an award that is unjust, arbitrary and oppressive, or
confiscatory." Because state law enforcement agencies are the "real
parties in interest" for PAGA claims, the court's task in reviewing
the settlement is to ensure the state's interest in enforcing the
law is upheld. But the PAGA does not establish any more specific
standard for evaluating PAGA settlements. Nor has any California
state court established a "benchmark for PAGA settlements, either
on their own terms or in relation to the recovery on other claims
in the action." The state courts have held only that trial courts
have "discretion" to reduce awards "for technical violations that
cause no injury" and must consider whether the underlying
violations were "inadvertent."
Given the nature of the alleged violations and settlement
agreement, Judge Mueller holds that these considerations are not
relevant. In the absence of specific guidance from the state
courts, the Court and at least one other California federal
district court have referred to the factors in Hanlon v. Chrysler
Corp., 150 F.3d 1011, 1026 (9th Cir. 1998), overruled on other
grounds by Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338 (2011).
These factors are not unique to class action lawsuits. They bear on
the fairness of settlements involving many plaintiffs. The Court,
as it has before, finds these factors useful in evaluating a PAGA
settlement. And for the reasons she discussed, Judge Mueller holds
that those factors favor approval of the settlement agreement.
D. Fees & Costs
Judge Mueller holds that although the proposed 33% award is above
the benchmark, she finds it is reasonable. The case has been
pending for many years, the Plaintiffs' counsel accepted
representation on a contingency basis, the Defendants firmly
contested the Plaintiffs' claims, and the class faced many legal
and evidentiary obstacles. Although the fee award is large in
relative terms, it is not a windfall in absolute terms. And the
total award, inclusive of fees for time recorded by non-lawyer
staff, is approximately $760,000. As a result, awarding the
counsel's proposed $112,200 fee is already equivalent to slashing
the award by more than 80%. Judge Mueller is not persuaded, after
reviewing the line-by-line billing records, that a steeper
reduction would be justified or fair. The amount of the
hypothetical lodestar award supports the counsel's fee request and
confirms it is reasonable.
III. Conclusion
The motions for final approval and fees are granted. The parties
are ordered to comply with and carry out the terms of the
Settlement Agreement. Every person in the California Settlement
Class will be bound by the Settlement Agreement and be deemed to
release and forever discharge all Released State Law Claims, as set
forth in the Settlement Agreement. Every person in the FLSA
Settlement Class who filed a consent form with the court or sent an
opt-in claim form to the Settlement Administrator is an FLSA
Settlement Class Member and will be bound by the Settlement
Agreement and be deemed to release and forever discharge all
Released Federal Law Claims, as set forth in the Settlement
Agreement. Every person in the PAGA Settlement Class will be bound
by the Settlement Agreement and be deemed to release and forever
discharge all Released PAGA Claims, as set forth in the Settlement
Agreement.
The Court retains jurisdiction over the administration and
effectuation of the Settlement including, but not limited to, the
ultimate disbursal to the participating Settlement Class Members,
payment of attorneys' fees and expenses, the service awards to the
Class Representatives, payment to the Settlement Administrator, and
other issues related to the Settlement. Nothing in the Order will
preclude any action to enforce the Parties' obligations under the
Settlement or under this order. The Plaintiff will notify the Court
within seven days after administration and effectuation of the
settlement is complete.
The Order resolves ECF Nos. 104 and 105.
A full-text copy of the Court's June 8, 2022 Order is available at
https://tinyurl.com/4x393edc from Leagle.com.
BOB DEAN: Verdin's Bid for Conditional Class Certification Denied
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In the case, JANICE VERDIN, ET AL. v. BOB DEAN, JR., ET AL.
SECTION: "A" (3), Civil Action No. 21-1976 (E.D. La.), Judge Jay C.
Zainey of the U.S. District Court for the Eastern District of
Louisiana denies the Plaintiffs' Motion for Conditional
Certification as a Collective Action and for Approval of Notice.
Before the Court is the Motion for Conditional Certification filed
by Plaintiffs Janice Verdin, Catherine Naquin, Mary Helmer, Olivia
Helmer, and Lauren Helmer. Defendants Bob Dean, Jr., Maison
De'Ville Nursing Home of Harvey, L.L.C., St. Elizabeth's Caring,
L.L.C., Raceland Manor Nursing Home, Inc., Maison De'Ville Nursing
Home, Inc., River Palms Nursing and Rehab, L.L.C., Uptown
Healthcare Center, L.L.C., Bob Dean Enterprises, Inc., and
Louisiana Healthcare Consultants, L.L.C, oppose the motion. The
motion, noticed for submission on May 25, 2022, is before the Court
on the briefs without oral argument.
The claims in the action arise out of work performed at an
Independence, Louisiana evacuation facility in the days immediately
before, during, and after the landfall of Hurricane Ida in August
2021. Specifically, the named Plaintiffs -- Janice Verdin,
Catherine Naquin, Mary Helmer, Olivia Helmer, and Lauren Helmer --
were among the nursing staff that were directed to report to a
warehouse in Independence to ride out Hurricane Ida along with the
evacuated nursing home residents.
The Plaintiffs allege that during the period Aug. 27, 2021 through
Sept. 2, 2021, they worked excessively long hours and were not paid
in full for the work they performed. All of the named Plaintiffs
were employed by South Lafourche Nursing & Rehab, which is the
operating tradename for Raceland Manor Nursing Home, Inc. Mr. Bob
Dean, Jr. owns South Lafourche Nursing & Rehab, as well as the
other defendant entities.
The crux of the Petition is an unpaid wage claim grounded on a text
message received by the Plaintiffs from one of Dean's employees;
the text message contained hurricane daily pay rates for LPNs,
CNAs, RNs, Ancillary(s), and Salary RNs, and these pay rates were
very generous. For instance, plaintiff Janice Verdin is an LPN who
normally receives an hourly rate of $30.75, with time and a half
for overtime. The hurricane rate that she claims to have been
promised was $2,250 per day. But even though Verdin worked for a
duration of seven days during the period that the hurricane daily
rate was supposed to be in place, her pay stub for the period Aug.
16, 2021 through Aug. 31, 2021, amounted to a net pay of only
$3,770.32.
Ms. Verdin is alleged to be a manager or supervisory level
employee. She claims that she is entitled to the promised hurricane
rate of $2,250 per day plus overtime pay. The Petition contains no
allegations as to the other named plaintiffs except that they are
similarly situated" to each other because they were not paid the
full amount of their wages due for the work that they performed.
A jury trial is scheduled for Dec. 5, 2022.
Relying on the two-step certification process articulated in
Lusardi v. Xerox Corp., 118 F.R.D. 351 (D.N.J. 1987), the
Plaintiffs move for conditional certification of this case as a
collective action pursuant to the Fair Labor Standards Act, 29
U.S.C. Section 201, et seq.
Judge Zainey will deny the motion for three reasons. First, in
Swales v. KLLM Transport Services, LLC, 985 F.3d 430 (5th Cir.
2021), the Fifth Circuit unequivocally rejected the Lusardi
two-step certification process in FLSA cases. Therefore, courts in
this circuit no longer apply that approach. All of the Plaintiffs'
cited cases pre-date the Swales decision.
Second, the Plaintiffs have failed to articulate how the failure to
pay the allegedly promised daily rate presents a cognizable claim
under federal law. The only claim that the Court discerns at this
juncture to which the FLSA would apply is the overtime claim, and
if Verdin proves that she is entitled to the hurricane daily rate,
it is unclear how she believes that an hourly overtime rate would
apply.
Finally, as to the sole FLSA claim asserted, i.e., failure to pay
overtime, Judge Zainey gleans no factual allegations to support the
otherwise conclusory assertion that the putative class members
would be similarly situated to each other. The only connection that
the Court gleans between Ms. Verdin and Mr. Michael Rivers, who is
not a plaintiff but submitted a declaration in support of
certification, is that they both worked for companies owned by Bob
Dean, Jr. and they both contend that they were promised a hurricane
day rate that they were not paid. It is not clear how the other
named plaintiffs are similarly situated to each other or to
Verdin.
In sum, Judge Zainey is not persuaded that the Plaintiffs have
demonstrated that certification of an FLSA collective action is
appropriate. Accordingly, he denies the Plaintiffs' Motion for
Conditional Certification.
A full-text copy of the Court's June 8, 2022 Order & Reasons is
available at https://tinyurl.com/65ztyryk from Leagle.com.
BOFI HOLDING: Class Deal in Securities Suit Gets Prelim. Approval
-----------------------------------------------------------------
In the case, IN RE: BofI HOLDING, INC. SECURITIES LITIGATION, Case
No. 3:15-CV-02324-GPC-KSC (S.D. Cal.), Judge Gonzalo P. Curiel of
the U.S. District Court for the Southern District of California
grants the Plaintiffs' Motion for Preliminary Approval of Class
Action Settlement.
I. Background
A. Plaintiffs' Pleadings and Defendants' Challenges
On Oct. 13, 2015, former BofI auditor Charles Matthew Erhart filed
a federal whistleblower complaint -- Erhart v. BofI Holding, Inc.,
No. 3:15-cv-2287-BAS-NLS (S.D. Cal. Oct. 13, 2015). As the
Plaintiff detailed in the Third Amended Complaint ("TAC"), the New
York Times reported about Mr. Erhart's whistleblower complaint, and
the BofI stock declined by 30% between Oct. 13, 2015 and Oct. 14,
2015 dropping from a closing price of $35.50 to $24.78. Several
BofI investors commenced putative class actions following the
filing of the Erhart Complaint.
The Court consolidated the actions and appointed Houston Municipal
Employees Pension System ("HMEPS" or "Plaintiff") as Lead Plaintiff
and Lieff Cabraser Heimann & Bernstein, LLP as the lead counsel for
the consolidated class. On April 11, 2016, the Plaintiff filed a
consolidated amended complaint ("CAC").
On May 11, 2016, the Defendants moved to dismiss the CAC as to all
claims for failure to sufficiently allege falsity and scienter. On
Sept. 27, 2016, the Court granted in part and denied in part the
Defendants' motion to dismiss. The Court dismissed the Plaintiff's
claims with leave to amend as to the other individual defendants.
On Nov. 25, 2016, the Plaintiff filed a Second Amended Complaint
("SAC"). On Dec. 23, 2016, Defendants moved to dismiss the SAC, as
to all claims, for failure to plead falsity and scienter. On May
23, 2017, the Court denied in part and granted in part Defendants'
motion. The Court upheld the the Plaintiff's claims of alleged
misstatements regarding BofI's loan underwriting practices and
internal controls and compliance infrastructure. It upheld the
Plaintiff's Section 20(a) claims against Defendants Micheletti,
Grinberg, Mosich and Argalas.
On June 20, 2017, the Defendants filed an Answer to the SAC. On
Sept. 29, 2017, the Defendants moved for judgment on the pleadings
under Rule 12(c). On Dec. 1, 2017, the Court granted the
Defendants' motion and dismissed the Plaintiff's claims with leave
to amend.
The Plaintiffs filed the TAC on Dec. 22, 2017. The TAC alleges BofI
made material misrepresentations relating to (1) BofI's internal
controls, compliance infrastructure, and risk management; (2) the
Bank's underwriting standards and loan credit quality; and (3)
government and regulatory investigations. On Jan. 19, 2018, the
Defendants filed a motion to dismiss, arguing again that the
Plaintiffs failed to sufficiently allege loss causation. On March
21, 2018, the Court granted the Defendants' motion, dismissed the
action with prejudice, and entered judgment against the
Plaintiffs.
B. Plaintiff's Ninth Circuit Appeal
The Plaintiff appealed the Court's dismissal and entry of judgment
to the Ninth Circuit. On Oct. 8, 2020, the Ninth Circuit issued its
opinion, reversing and remanding in part. The Ninth Circuit
affirmed the Court's finding that the Seeking Alpha articles did
not quality as corrective disclosures, and that the Plaintiff
failed to allege the falsity of alleged misstatements regarding
government and/or regulatory investigations. It denied the
Defendants' petition for rehearing and petition for rehearing en
banc. The Defendants filed a petition for a writ of certiorari to
the United States Supreme Court which was denied on Oct. 4, 2021.
C. Remand and Discovery
Following the Ninth Circuit's remand to the Court, the Court
directed the Parties to begin discovery. Beginning in December
2020, the Parties exchanged "voluminous discovery and vigorously
litigated a substantial number of issues." At the time the Parties
reached a settlement in principle, three motions regarding
objections to rulings on discovery disputes were pending before the
Court.
D. Class Certification
On May 28, 2021, the Plaintiff moved to certify a class of
investors. The Defendants opposed the motion, arguing primarily
that the Plaintiff failed to satisfy the predominance requirement
under Rule 23(b)(3). On Aug. 20, 2021, the Court held a hearing on
the motion. On Aug. 24, 2021, the Court issued an Order granting
the Plaintiff's motion for class certification.
The Order certified a Class consisting of "all persons and entities
that, during the period from Sept. 4, 2013 through Oct. 13, 2015,
inclusive, purchased or otherwise acquired shares of the publicly
traded common stock of BofI, as well as purchasers of BofI call
options and sellers of BofI put options, and were damaged thereby."
It also appointed HMEPS as Class Representative, and Lieff Cabraser
as Class Counsel. The Court approved the Plaintiff's proposed
notice plan and directed notice to the Class on Dec. 2, 2021. The
notice period concluded on March 21, 2022. The Class Counsel
received only nine requests for exclusion, only one of which was a
timely request.
E. Mediation and Settlement
In late 2021, the Parties retained the Honorable Daniel Weinstein
(Ret.) of JAMS to explore settlement. On Jan. 13, 2022, the parties
held a mediation session with Judge Weinstein over Zoom, attended
by representatives from HMEPS, the Defendants, the Defendants'
insurers, and the counsel for all parties. The parties communicated
through Judge Weinstein thereafter about potential resolution of
the action.
On Feb. 23, 2022, the Parties reached an agreement in principle to
settle all claims in the matter. They notified the Court of the
settlement, and the Court issued an order vacating all deadlines,
scheduling orders, and motion hearings in the action. On Feb. 28,
2022, the parties signed a Term Sheet "reflecting the material
terms of the agreement" which was modified on March 7, 2022. On
April 13, 2022, the parties executed the Stipulation and Agreement
of Settlement.
F. Settlement Terms
The Settlement Agreement provides for a Settlement Amount of $14.1
million to a common Settlement Fund on behalf of the
already-certified Class. It provides that the total Settlement
Amount will be used to pay: (a) any Taxes; (b) any Notice and
Administration Costs; (c) any Fee and Expense Award awarded by the
Court. The balance remaining in the Settlement Fund will be
distributed to Authorized Claimants. No portion of the $14.1
million Settlement Fund will revert to the Defendants. After the
deduction of notice-related costs and Court-approved award of
attorney's fees, reimbursement of litigation expenses, and service
award to HMEPS as Class Representative, the Settlement Fund will be
distributed on a pro rata basis to all the Class Members.
The Plaintiff also seeks appointment of JND Legal Administration to
serve as Settlement Administrator. The Court previously appointed
JND to serve as the Notice Administrator in its order granting the
Plaintiff's motion for issuance of class notice.
The Proposed Notice, attached to the Plaintiff's moving papers at
Exhibit A-1, discloses material information to a Class Member's
decision whether to accept, object to, or opt out of the
Settlement, including: (1) the terms and provisions of the
Settlement Agreement, including the Settlement Amount; (2) the
history of this litigation; (3) the relief to the Class Members and
releases to the Defendants and the Defendants' Releasees that the
Settlement will provide; (4) the maximum award of attorney's fees
and reimbursement of reasonable expenses to the Class Counsel as
well as the service award to the Class Representative; (5) the
date, time and place (to be decided by the Court) of the hearing on
Final Approval of class action settlement; and (6) the procedures
and deadlines for opting out of the settlement or submitting
comments or objections.
II. Discussion
Judge Curiel finds that the Settlement Agreement is an adequate,
fair, and reasonable resolution to the action. He finds that (i)
the Lead Plaintiff and the Class Counsel have adequately
represented Class Members throughout the litigation; (ii) there is
no indication that the distribution and allocation methods proposed
by the Class Counsel and the Settlement Administrator will result
in unequitable treatment of Class Members; (iii) the method of
allocating and distributing relief is simple and effective, and not
"unduly demanding" under Rule 23(e); (iv) a $15,000 service award
is reasonable and does not raise any concerns about the equitable
treatment of the Class Members in the action; (v) the terms of the
forthcoming motion for attorneys' fees ($3,525,000) and expenses
does not present a barrier to finding the Settlement Agreement is
fair, adequate and reasonable; and (vi) the Court is not prepared
to approve the proposed language granting Lead Counsel the
discretion to authorize disbursement, without further approval from
the Court, of up to $350,000 for reasonable costs incurred
notifying the Class Members of the Settlement and administering the
Settlement.
III. Conclusion
Judge Curiel grants the Plaintiff's motion for preliminary approval
of class action settlement.
Judge Curiel conditionally approves of the Proposed Notice Form
subject to revisions consistent with the Court's instructions at
the hearing on the matter, and the Order. The Plaintiff is
instructed to re-submit a Proposed Notice Form that clarifies the
deductions for all fees and costs, including fees for Claims
Administration.
Judge Curiel approves of (i) the Proof of Claim Form and (ii) the
Plan of Allocation detailed by the Plaintiff and the Class Counsel
in their moving papers.
Judge Curiel preliminary approves of the Parties' Settlement
Agreement to resolve the Action, subject to further consideration
at the Final Approval Hearing.
The Court previously certified a Class on Aug. 24, 2021, which is
defined in the Court's Class Certification Order.
The Court will hold a Settlement Hearing on Oct. 7, 2022, at 1:30
p.m. in Courtroom 2D. The hearing will take place at United States
District Court for the Southern District of California, Edward J.
Schwartz United States Courthouse, 221 West Broadway, San Diego, CA
92101. The Notice of Proposed Settlement, Settlement Hearing, and
Motion for Fee and Expense Award (Notice) will be given to the
Class.
The Class Counsel is authorized to retain JND Legal Administration
to supervise and administer the notice procedure in connection with
the proposed Settlement as well as the processing of Claims.
The Notice will be given follows:
a. not later than 21 calendar days after the date of entry of
the Order, the Claims Administrator will cause a copy of the Notice
and the Proof of Claim and Release Form, to be mailed by
first-class mail to potential Class Members at the addresses set
forth in the records provided by BofI or in the records which BofI
caused to be provided, or who otherwise may be identified through
further reasonable effort;
b. contemporaneously with the mailing of the Notice and Claim
Form, the Claims Administrator will cause copies of the Notice, the
Summary Notice, and the Claim Form to be posted on a website to be
developed for the Settlement, from which copies of the Notices and
Claim Form can be downloaded;
c. note later than 10 calendar days after the Notice Date, the
Claims Administrator will cause the Summary Notice, to be published
in PRNewswire and Investors Business Daily; and
d. not later than seven calendar days prior to the Settlement
Hearing, the Class Counsel will serve on the Defendants' Counsel
and file with the Court proof, by affidavit or declaration, of such
mailing and publication.
Judge Curiel (a) approves, as to form and content, the Notice, the
Claim Form, and the Summary Notice. The date and time of the
Settlement Hearing will be included in the Notice and Summary
Notice before they are mailed and published, respectively.
Brokers and other nominees who purchased or otherwise acquired BofI
common stock shares, or purchased BofI call options or sold BofI
put options, during the Class Period for the benefit of another
person or entity shall: (a) within 10 calendar days of receipt of
the Notice, request from the Claims Administrator sufficient copies
of the Notice and Claim Form to forward to all such beneficial
owners/purchasers and within seven calendar days of receipt of
those Notice and Claim Form forward them to all such beneficial
owners/purchasers; or (b) within 10 calendar days of receipt of the
Notice, send a list of the names, addresses, and/or email addresses
of all such beneficial owners/purchasers to the Claims
Administrator in which event the Claims Administrator will promptly
mail/email the Notice and Claim Form to such beneficial
owners/purchasers. Where the Claims Administrator receives a valid
email address, they will email the Notice and Claim Form to
beneficial owners/purchasers.
Upon full compliance with the Order, such nominees may seek
reimbursement of their reasonable expenses actually incurred in
complying with the Order, in an amount not to exceed $0.50 plus
postage; or $0.05 per transmitted by email; or $0.05 per name,
mailing address, and email address (to the extent available)
provided to the Claims Administrator, by providing the Claims
Administrator with proper documentation supporting the expenses for
which reimbursement is sought. Such properly documented expenses
incurred by nominees in compliance with the terms of the Order will
be paid from the Settlement Fund, with any disputes as to the
reasonableness or documentation of expenses incurred subject to
review by the Court.
In order to be eligible to receive a distribution from the
Settlement Fund, in the event the Settlement is effected in
accordance with the terms and conditions set forth in the
Stipulation, each claimant will take the following actions and be
subject to the following:
a. A properly completed and executed Claim Form must be
submitted to the Claims Administrator, at the post office box
indicated in the Notice and Claim Form, postmarked no later than 30
days after the Settlement Hearing. Such deadline may be further
extended by Order of the Court. Each Claim Form will be deemed to
have been submitted when legibly postmarked (if properly addressed
and mailed by first-class mail). Any Claim Form submitted in any
other manner will be deemed to have been submitted when it was
actually received by the Claims Administrator at the address
designated in the Notice. Notwithstanding the foregoing, the Class
Counsel will have the discretion (but not an obligation) to accept
late-submitted claims for processing by the Claims Administrator so
long as distribution of the Settlement Fund to Authorized Claimants
is not materially delayed thereby, but will bear no liability for
failing to accept such late claims.
b. The Claim Form submitted by each Class Member must satisfy
the following conditions: (i) it must be properly filled out,
signed, and submitted in a timely manner in accordance with the
provisions of the preceding subparagraph; (ii) it must be
accompanied by adequate supporting documentation for the
transactions reported therein, in the form of broker confirmation
slips, broker account statements, an authorized statement from the
broker containing the transactional information found in a broker
confirmation slip, or such other documentation as is deemed
adequate by the Claims Administrator or Class Counsel; (iii) if the
person executing the act on behalf of the Class Member must be
provided with the Claim Form; and (iv) the Claim Form must be
complete and contain no material deletions or modifications of any
of the printed matter contained therein and must be signed under
penalty of perjury.
c. Once the Claims Administrator has considered a timely
submitted Claim Form, it will determine whether such claim is
valid, deficient, or rejected. For each claim determined to be
either deficient or rejected, the Claims Administrator will send a
deficiency letter or rejection letter as appropriate, describing
the basis on which the claim was so determined. Persons who timely
submit a Claim Form that is deficient or otherwise rejected will be
afforded a reasonable time (at least 20 calendar days) to cure such
deficiency if it will appear that such deficiency may be cured.
d. For the filing of and all determinations concerning their
Claim Form, each Class Member will submit to the jurisdiction of
the Court.
Any Class Member who does not request exclusion from the Class may
file a written objection to the proposed Settlement, the proposed
Plan of Allocation, and/or Class Counsel's motion for a Fee and
Expense Award (including reimbursement of the reasonable costs and
expenses, including time, to the Lead Plaintiff) and appear and
show cause, if he, she or it has any cause, why the Settlement, the
proposed Plan of Allocation and/or the requested Fee and Expense
Award (including reimbursement to the Lead Plaintiff) should not be
approved; provided, however, that no Class Member will be heard or
entitled to contest the approval of the terms and conditions of the
Settlement, the proposed Plan of Allocation and/or the requested
Fee and Expense Award unless that person or entity has filed a
written objection with the Court and served copies of such
objection on Class Counsel and the Defendants' Counsel at the
addresses set forth below such that they are received no later than
60 calendar days after the Preliminary Approval Order.
The Court will consider all proper objections even if a Class
Member does not attend the Settlement Hearing.
Until otherwise ordered by the Court, the Court stays all
proceedings in the Action other than proceedings necessary to carry
out or enforce the terms and conditions of the Stipulation. Pending
final determination of whether the Settlement should be approved,
the Lead Plaintiff, all the Class Members, and each of them, and
anyone who acts or purports to act on their behalf, will not
institute, commence or prosecute any action which asserts Released
Claims against the Defendants.
Upon requesting and receiving permission from the Court, the Escrow
Agent may disburse all reasonable costs (up to $350,000) incurred
in notifying Class Members of Settlement and administering the
Settlement.
The Class Counsel is authorized and directed to prepare any tax
returns and any other tax reporting form for or in respect to the
Settlement Fund, to pay from the Settlement Fund any Taxes owed
with respect to the Settlement Fund, and to otherwise perform all
obligations with respect to Taxes and any reporting or filings in
respect thereof without further order of the Court in a manner
consistent with the provisions of the Stipulation.
The Defendants will provide timely service of any notices that
might be required pursuant to the Class Action Fairness Act, 28
U.S.C. Section 1715.
The following schedule will govern the Class Counsel's motion for
final approval of the Settlement and Plan of Allocation, and the
Class Counsel's request for a Fee and Expense Award:
a. The Class Counsel's opening papers in support of its Fee
an Expense Award (including reimbursement to Lead Plaintiff) will
be filed 45 days after the entry of the Order;
b. Class Counsel's motion for final approval of the
Settlement and Plan of Allocation, and any responses to any Class
Member objections will be filed 28 days before the Settlement
Hearing.
The Court retains jurisdiction to consider all further applications
arising out of or connected with the Settlement.
A full-text copy of the Court's June 8, 2022 Amended Order is
available at https://tinyurl.com/4m4yh38k from Leagle.com.
BRAVO ARKOMA: MRC Seeks Final Approval of Class Settlement
----------------------------------------------------------
In the class action lawsuit captioned as McKnight Realty Company,
on behalf of itself and all others similarly situated,
v. Bravo Arkoma, LLC, Case No. 6:20-cv-00428-KEW (E.D. Okla.), the
Plaintiff asks the Court to enter an order for final approval of
the:
1. Proposed class action Settlement;
2. Notice of Settlement and Plan of Notice; and
3. Proposed Initial Plan of Allocation.
On April 12, 2022, the Court issued an order preliminarily
approving the settlement, approving the form of notice, and setting
a date of July 18, 2022, for the Final Fairness Hearing.
The Court already certified the following Settlement Class:
"All non-excluded persons or entities who received oil-and-
gas proceeds payments from Defendant Bravo Arkoma, LLC from
oil and/or gas wells located in the State of Oklahoma between
November 1, 2015 and April 30, 2021, or whose oil-and-gas
proceeds were escheated to a government entity by Defendant
between November 1, 2015 and April 30, 2021, or whose
suspended oil- and-gas proceeds were transferred by Defendant
to Mustang or WSGP between November 1, 2015 and April 30,
2021."
Excluded from the Settlement Class are: (1) agencies,
departments, or instrumentalities of the United States of
America or the State of Oklahoma; (2) any Indian tribe as
defined at 30 U.S.C. section 1702(4) or Indian allottee as
defined at 30 U.S.C. section 1702(2); and (3) Defendant, its
affiliates, affiliated predecessors, and their employees,
officers, and directors.
A copy of the Plaintiff's motion dated June 13, 2022 is available
from PacerMonitor.com at https://bit.ly/3HmzM58at no extra
charge.[CC]
The Plaintiff is represented by:
Reagan E. Bradford, Esq.
Ryan K. Wilson, Esq.
BRADFORD & WILSON PLLC
431 W. Main Street, Suite D
Oklahoma City, OK 73102
Telephone: (405) 698-2770
E-mail: reagan@bradwil.com
ryan@bradwil.com
C.R. ENGLAND: Faces Bischoff Suit Over Alleged Data Breach
----------------------------------------------------------
BRUCE BISCHOFF, individually and on behalf of all others similarly
situated, Plaintiff v. C.R. ENGLAND, INC., Defendant, Case No.
2:22-cv-00388-DAO 9D. Utah, June 8, 2022) is class action arising
out of the targeted cyber-attack against the Defendant that allowed
a third party to access its computer systems and data, resulting in
the compromise of highly sensitive personal information belonging
to tens of thousands of current and former students, employees, and
independent contractors (the "Cyber-Attack").
The Plaintiff alleges in the complaint that as a result of the
Cyber-Attack, the Plaintiff and Class Members suffered
ascertainable injury and damages in the form of the substantial and
present risk of fraud and identity theft from their unlawfully
accessed and compromised private and confidential information,
including Social Security numbers, lost value of their private and
confidential information, out-of-pocket expenses and the value of
their time reasonably incurred to remedy or mitigate the effects of
the attack.
The Defendant maintained the Private Information in a reckless
manner. In particular, the Private Information was maintained on
the Defendant's computer network in a condition vulnerable to
cyber-attacks of this type, says the suit.
C.R. ENGLAND, INC. provides transportation services. The Company
offers truck driving training, satellite tracking, communication,
fleet billing, load tracking, electronic commerce, order
consolidation, route optimization, and transport modeling services.
[BN]
The Plaintiff is represented by:
Jason R. Hull, Esq.
Trevor C. Lang, Esq.
MARSHALL OLSON & HULL, PC
Newhouse Building
Ten Exchange Place, Suite 350
Salt Lake City, UT 84111
Telephone: (801) 456-7655
Email: jhull@mohtrial.com
tlang@hohtrial.Com
-and-
Gary M. Klinger, Esq.
John J. Nelson, Esq.
MILBERG COLEMAN BRYSON PHILLIPS
GROSSMAN PLLC
227 W. Monroe Street, Suite 2100
Chicago, IL 60606
Telephone: (866) 252-0878
Email: gklinger@milberg.com
jnelson@milberg.Com
CAMBER ENERGY: Faces Coggins Shareholder Suit in Texas Court
------------------------------------------------------------
Camber Energy, Inc. disclosed in its Form 10-KT Report for the
transition period from April 1, 2020 to December 31, 2020, filed
with the Securities and Exchange Commission on May 19, 2022, that
on October 29, 2021, a class action complaint No. 4:21-cv-03574 was
filed against the company, its CEO and CFO captioned "Ronald E.
Coggins, individually and on behalf of all others similarly
situated v. Camber Energy, Inc., et al." in the U.S. District Court
for the Southern District of Texas, Houston Division.
Plaintiffs are seeking to recover damages alleged to have been
suffered by them as a result of the defendants' violations of
federal securities laws.
Camber is a Nevada corporation primarily engaged in the
acquisition, development and sale of crude oil, natural gas and
natural gas liquids from various known productive geological
formations in Kansas, Louisiana and Texas and holds interests in
non-producing wells in Mississippi.
CG-HHC INC: Fails to Pay OT Compensation to Non-Exempt Employees
----------------------------------------------------------------
DAVID WILLIAMS, on behalf of himself and all others similarly
situated, v. CG-HHC, INC. d/b/a CAREGIVER, A STEP UP c/o
CORPORATION SERVICE COMPANY, Case No. 5:22-cv-01003 (N.D. Ohio,
June 9, 2022) is a collective action arising from Defendant's
practices and policies of not paying its non-exempt employees,
including Plaintiff and other similarly situated employees,
overtime compensation at the rate of one and one-half times their
regular rate of pay for the hours they worked over 40 each
workweek, in violation of the Fair Labor Standards Act, as well as
a "class action" pursuant to Fed. R. Civ. P. 23 to remedy
violations of the Ohio Minimum Wage Standards Act.
Since June 2020, the Defendant has employed Plaintiff as a
residential manager. The Defendant employed similarly-situated
employees at its facilities throughout Ohio.
As a residential manager, Plaintiff and similarly-situated
employees did not engage in "managing" other employees, did not
direct any other employees' work, did not have the authority to
hire, fire, or promote other employees, did not perform work
directly related to Defendant's management or general business
operations, did not exercise discretion or independent judgment
with respect to significant matters, and did not perform work
requiring knowledge of an advanced type in a field of science or
learning customarily acquired by a prolonged course of specialized
intellectual instruction, says the suit.
The Defendant operates residential care centers for adults with
intellectual and/or developmental disabilities throughout
Ohio.[BN]
The Plaintiff is represented by:
Alanna Klein Fischer, Esq.
Anthony J. Lazzaro, Esq.
Lori M. Griffin, Esq.
Matthew S. Grimsley, Esq.
THE LAZZARO LAW FIRM, LLC
The Heritage Bldg., Suite 250
34555 Chagrin Boulevard
Moreland Hills, OH 44022
Telephone: (216) 696-5000
Facsimile: (216) 696-7005
E-mail: anthony@lazzarolawfirm.com
lori@lazzarolawfirm.com
alanna@lazzarolawfirm.com
matthew@lazzarolawfirm.com
CHAPTER NY LLC: Jackson Files ADA Suit in S.D. New York
-------------------------------------------------------
A class action lawsuit has been filed against Chapter NY LLC. The
case is styled as Sylinia Jackson, on behalf of herself and all
other persons similarly situated v. Chapter NY LLC, Case No.
1:22-cv-04752 (S.D.N.Y., June 7, 2022).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Chapter NY -- http://chapter-ny.com/-- is a gallery exhibit
located in New York City.[BN]
The Plaintiff is represented by:
Jeffrey Michael Gottlieb, Esq.
Michael A. LaBollita, Esq.
150 E. 18 St., Suite PHR
New York, NY 10003
Phone: (212) 228-9795
Fax: (212) 982-6284
Email: nyjg@aol.com
michael@gottlieb.legal
CIGNA HEALTH: Faces Suit Over Payment of Insurance Claims
---------------------------------------------------------
BEACH DISTRICT SURGERY CENTER, L.P., individually and on behalf of
all others similarly situated, Plaintiff v. CIGNA HEALTH AND LIFE
INS. CO.; and DOES 1-10, Defendants, Case No. 2:22-cv-03931 (C.D.
Cal., June 8, 2022) is a class action lawsuit against the
Defendants for misrepresenting the nature of payments it would make
to out-of-network California medical providers that had agreements
with a complementary network called Multiplan.
According to the complaint, Cigna imprints a Multiplan logo on its
insureds' insurance cards only for those eligible to receive
discounted rates when using an out-of-network non-participating
medical provider or facility that participates in the Multiplan
Network. The Multiplan logo is intended to and does represent to
patients and out-of-network medical providers, including Plaintiff,
that Cigna will apply the payment rates pursuant to the provider's
Multiplan agreement, if the provider has such an agreement.
However, Cigna's representations in this regard are false, says the
suit.
The Plaintiff has rendered medical services to numerous patients
with Cigna health insurance that have insurance cards bearing the
Multiplan logo. However, when the Plaintiff submitted claims to
Cigna for medical services rendered to such patients, Cigna did not
pay these claims at the rates provided by the Multiplan agreement
despite confirming that Multiplan rates were applicable—instead,
Cigna paid far less, thus damaging the Plaintiff, the suit added.
CIGNA HEALTH AND LIFE INSURANCE COMPANY operates as an insurance
firm. The Company offers life and health insurance services. [BN]
The Plaintiff is represented by:
Jonathan M. Rotter, Esq.
Natalie S. Pang, Esq.
GLANCY PRONGAY & MURRAY LLP
1925 Century Park East, Suite 2100
Los Angeles, CA 90067
Telephone: (310) 201-9150
Facsimile: (310) 201-9160
Email: jrotter@glancylaw.com
npang@glancylaw.com
- and -
Jonathan A. Stieglitz, Esq.
THE LAW OFFICES OF JONATHAN A. STIEGLITZ
11845 Olympic Blvd., Suite 800
Los Angeles, CA 90064
Telephone: (323) 979-2063
Facsimile: (323) 488-6748
Email: jonathan@stieglitzlaw.com
CINTAS CORPORATION: Calendar Order Entered in Bearup Class Suit
---------------------------------------------------------------
In the class action lawsuit captioned as THOMAS BEARUP, JR., et
al., v. CINTAS CORPORATION NO. 2, Case No. 1:21-cv-00151-MWM (S.D.
Ohio), the Hon. Judge Matthew W. McFarland entered an calendar
order pursuant to the filing of the Rule 26(f) Report by the
parties on May 20, 2022 as follows:
1. Deadline to begin making initial July 18, 2022
disclosures:
2. Deadline to complete initial September 26, 2022
disclosures:
3. Deadline for motion to amend April 27, 2023
pleadings/add parties:
4. Deadline for motions related June 27, 2023
to pleadings:
5. Deadline for disclosure of June 27, 2023
non-expert (fact) witnesses:
6. Fact Discovery deadline: February 27, 2024
7. Deadlines for disclosure of
expert witnesses and
submission of expert reports:
Plaintiff expert report(s): March 28, 2024
Defendant expert report(s): May 28, 2024
Disclosure and report of July 12, 2024
rebuttal experts:
8. Expert Discovery deadline: September 25, 2024
9. Deadline for Motion for November 26, 2024
Class Certification:
10. Deadline for Opposition to January 28, 2025
Motion for Class Certification:
11. Deadline for Reply in Support February 27, 2025
of Motion for Class Certification:
12. Dispositive motions deadline: 45 days after
decision on Motion
for Class
Certification
Cintas Corporation No. 2 provides corporate identity uniforms. The
Company offers flame resistant clothing, mats, mops, shop towels,
and other ancillary items, as well as specializes in first aid,
safety, and fire protection products and services.
A copy of the Court's order dated June 13, 2022 is available from
PacerMonitor.com at https://bit.ly/3xmJMqq at no extra charge.[CC]
CORECIVIC INC: Plaintiffs Allowed to File Exhibits Under Seal
-------------------------------------------------------------
In the class action lawsuit captioned as WILHEN HILL BARRIENTOS, et
al., v. CORECIVIC, INC., Case No. 4:18-cv-00070-CDL (M.D. Ga.), the
Hon. Judge Clay D. Land entered an order granting the plaintiffs'
motion for leave to file class certification brief and exhibits
under seal.
The Court grants Plaintiffs' motion for leave to file class
certification brief and exhibits under seal to the extent that
Plaintiffs may file the requested documents under
restricted access.
The Plaintiffs are ordered to:
(1) file under restricted access complete, unredacted versions
of the Class Certification Brief and certain exhibits
thereto on June 17, 2022; and
(2) file public versions of the Class Certification Brief,
deposition transcript excerpts, and Plaintiffs' experts'
reports redacting quotations from or references to
information designated CONFIDENTIAL or ATTORNEY’S EYES
ONLY no later than July 1, 2022.
CoreCivic, formerly the Corrections Corporation of America, is a
company that owns and manages private prisons and detention centers
and operates others on a concession basis.
A copy of the Court's order dated June 13, 2022 is available from
PacerMonitor.com at https://bit.ly/3aXfpPD at no extra charge.[CC]
CREE INC: Court Junks Wedra Bid for Class Certification
--------------------------------------------------------
In the class action lawsuit captioned as STEPHANIE WEDRA,
individually and on behalf of all others similarly situated, v.
CREE, INC., Case No. 7:19-cv-03162-VB (S.D.N.Y.), the Hon. Judge
Vincent L. Briccetti entered an order denying the motion for class
certification.
The motions to strike and exclude the reports and opinions of
plaintiff's experts are denied without prejudice. The Clerk is
instructed to terminate the motions. All counsel are directed to
appear for a status conference on July 15, 2022, at 11:30 a.m.,
in Courtroom 620 at the White Plains courthouse. By July 8, 2022,
the parties are directed to submit a joint letter addressing all
case management issues going forward, including inter alia a
proposed schedule for the completion of discovery on the merits of
plaintiff's claims, Judge Briccetti says.
The Plaintiff Stephanie Wedra brings this purported class action
against defendant Cree, Inc., for allegedly misrepresenting the
longevity of defendant's lightbulbs. Plaintiff brings state law
claims for violations of Sections 349 and 350 of New York's General
Business Law ("GBL") and for fraudulent misrepresentation and
concealment.
The parties have submitted briefs and declarations with supporting
exhibits, which reflect the following factual background.
The Defendant manufactures and sells light emitting diode ("LED")
lightbulbs, which are generally advertised as energy-saving
alternatives to traditional incandescent bulbs and compact
fluorescent lamps. The Defendant manufactures three categories of
LED lightbulbs: Standard A-1 Type, Reflector, and Specialty.
The Plaintiff contends the packaging for each of defendant's LED
lightbulbs makes at least one of the following types of claims
regarding the lightbulb's longevity: (i) cost savings, such as
"$226 Lifetime Energy Savings"; (ii) longevity and performance
comparisons to other LED bulbs, such as "Our LED bulbs work better
and last longer"; and (iii) guaranty or warranty claims, such as
"100% Satisfaction Guaranteed."
The Plaintiff claims she purchased a two-pack of defendant's
60-watt lightbulbs at a Home Depot store for approximately $10 to
$20. She alleges she reviewed and relied on the representations on
the packaging of the lightbulbs regarding their longevity as part
of her decision to purchase the lightbulbs.
A copy of the Court's order dated June 13, 2022 is available from
PacerMonitor.com at https://bit.ly/3aWnlAG at no extra charge.[CC]
EAST GRAND: Rajabova Class Suit Seeks Minimum Wages Under FLSA
--------------------------------------------------------------
RUSHANA RAJABOVA, on behalf of herself and all others similarly
situated, v. EAST GRAND MARKET INC., and ABROR SAIDOV,
individually, Case No. 516688/2022 (NY Sup., Kings Cty., June 9,
2022) is a civil action for damages and equitable relief based upon
violations that Defendants committed of Plaintiff's rights
guaranteed to her by:
(i) the minimum wage provisions of the New York Labor Law
(NYLL) section 652(1); and
(ii) the requirement that employers furnish employees with
wage statements on each payday containing specific
categories of accurate requirement that employers
furnish employees with a wage notice at hire containing
specific categories of accurate information, NYLL
section 195(1).
The Plaintiff worked for Defendants, a Brooklyn supermarket and its
owner, which employed Plaintiff as a cashier from June 25, 2021
through July 14, 2021.
The Defendants allegedly failed to pay the Plaintiff the wages
lawfully owed to her under the NYLL, as the Defendants failed to
compensate the Plaintiff at the statutorily required minimum wage
for the hours that Plaintiff worked each workweek under the NYLL.
Additionally, the Defendants violated the NYLL by failing to
provide the Plaintiff with a wage statement on each payday that
accurately stated the hours that Plaintiff worked each week or a
wage notice upon her date of hire that accurately stated her
regular and overtime rates of pay. The Defendants' failure to pay
minimum wage was not limited to Plaintiff, but also extended to all
of Defendants' non-managerial employees, says the suit.
Accordingly, the Plaintiff brings this lawsuit as a class action
pursuant to Civil Practice Rules and Laws (CPLR) section 901, on
her own behalf, as well as on behalf of those who are
similarly-situated who, during the applicable statute of
limitations, were subjected to violations of NYLL and NYCRR, the
suit asserts.
Grand Market is a corporation that owns and operates a supermarket
located at 1201 Quentin Road, Brooklyn, New York.
On or around June 25, 2021, the Defendants hired Plaintiff to work
in the store as a cashier. As a non-managerial employee, Plaintiff
was responsible to manage the cash register and assist customers
with their purchases. The Plaintiff worked in this role until
around July 14, 2021. For her work, the Defendants paid Plaintiff
$11.00 per hour for all hours that she worked. As a result,
Defendants failed to pay Plaintiff for at the legally-mandated
minimum wage rate of $15.00 per hour for all hours that she worked.
The Defendants paid Plaintiff on a weekly basis by cash. On each
occasion when Defendants paid Plaintiff, the Defendants failed to
provide the Plaintiff with a wage statement that accurately listed
Plaintiff's actual hours worked for that week, added the suit.[BN]
The Plaintiff is represented by:
Jeffrey R. Maguire
STEVENSON MARINO LLP
105 Maxess Road, Suite 124
Melville, NY 11747
Telephone: (212) 939-7229
EDUCATION CREDIT: Parties Directed to File Joint Status Report
--------------------------------------------------------------
In the class action lawsuit captioned as Kincaid v. Education
Credit Mgt. Corp., et al., Case No. 2:21-cv-00863 (E.D. Cal.), the
Hon. Judge Troy L. Nunley entered an order directing the parties to
file a joint status report within 30 days with proposed dates for
filing of Plaintiff's Motion for Class Certification.
The nature of suit states Other Labor Litigation.
ECMC operates as a non-profit organization.[CC]
EVOLENT HEALTH: Class Certification Hearing Extended to July 8
--------------------------------------------------------------
In the class action lawsuit captioned as PLYMOUTH COUNTY RETIREMENT
SYSTEM, et al., v. EVOLENT HEALTH, INC., et al., Case No.
1:19-cv-01031-MSN-TCB (E.D.Va.), the Hon. Judge Michael S.
Nachmanoff entered an order:
1. denying the Defendants' motion for Leave to Present Live
Expert Testimony and To File Supplemental Brief Opposing
Class Certification;
2. extending the hearing on Plaintiffs' Motion for Class
Certification scheduled for June 24, 2022 to July 8, 2022
at 10:00 a.m.;
3. directing the parties to confer and shall file a joint
motion by June 17, 2022 setting forth the parties'
proposed schedule addressing briefing and hearing on
motions for summary judgment; and
4. suspending the Final Pretrial Conference scheduled for
June 30, 2022 pending resolution of the motions for
summary judgment.
The Plymouth County Retirement System provides retirement,
disability, and survivor benefits.
Evolent Health is a population health management services
organization.
A copy of the Court's order dated June 14, 2022 is available from
PacerMonitor.com at https://bit.ly/3xTMJAr at no extra charge.[CC]
FEDERAL SAVINGS: Filing of Class Certification Bid Due Sept. 27
---------------------------------------------------------------
In the class action lawsuit captioned as Scott v. Federal Savings
Bank, Case No. 3:21-cv-00291 (D. Or.), the Hon. Judge Marco A.
Hernandez entered an order that class certification deadline is
Sept. 27, 2022.
The nature of suit states Restrictions of Use of Telephone
Equipment.
The Federal Savings Bank is a veteran-owned bank, with a focus on
VA loans and FHA loans for military and first time home buyers.[CC]
FIDELITY DESIGN HOUSE: Lawal Files ADA Suit in S.D. New York
------------------------------------------------------------
A class action lawsuit has been filed against Fidelity Design House
US, Inc. The case is styled as Rafia Lawal, on behalf of herself
and all others similarly situated v. Fidelity Design House US,
Inc., Case No. 1:22-cv-04745 (S.D.N.Y., June 7, 2022).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Fidelity Design House US, Inc. doing business as Fidelity Denim --
https://fidelitydenim.com/ -- makes the world's best jeans crafted
in Los Angeles using only the finest Italian and Japanese
denim.[BN]
The Plaintiff is represented by:
Yitzchak Zelman, Esq.
MARCUS & ZELMAN LLC
701 Cookman Avenue, Suite 300
Asbury Park, NJ 07712
Phone: (845) 367-7146
Fax: (732) 298-6256
Email: yzelman@marcuszelman.com
FLOWERS FOODS: Settles Bowen and Aucoin Suits in Maine
-------------------------------------------------------
Flowers Foods, Inc. disclosed in its Form 10-Q Report for the
quarterly period ended April 23, 2022, filed with the Securities
and Exchange Commission on May 19, 2022, that on April 26, 2022,
the court approved an agreement to settle the cases pending in the
U.S. District Court for the District of Maine captioned "Bowen et
al. v. Flowers Foods, Inc. et al.," Case No. 1:20-cv-00411 and
"Aucoin et al. v. Flowers Foods, Inc. et al," Case No.
1:20-cv-00410) for a payment of $16.5 million, comprising $9
million in settlement funds and $7.5 million in attorneys' fees.
Flowers Foods, Inc. is a bakery chain based in Thomasville GA.
FOOT SOLUTIONS: Crosson Files ADA Suit in S.D. New York
-------------------------------------------------------
A class action lawsuit has been filed against Foot Solutions, Inc.
The case is styled as Aretha Crosson, individually and as the
representative of a class of similarly situated persons v. Foot
Solutions, Inc., Case No. 1:22-cv-03348 (S.D.N.Y., June 7, 2022).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Foot Solutions -- https://footsolutions.com/ -- is a global
franchise retailer in the health and wellness industry specializing
in custom orthotics and complementary footwear.[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
FORD MOTOR: Seeks Denial of Class Certification in Tucker Suit
--------------------------------------------------------------
In the class action lawsuit captioned as MICHAEL TUCKER v. FORD
MOTOR COMPANY, Case No. (), the Defendant asks the Court to enter
an order denying class certification and striking class allegations
from the Third Amended Petition filed by Plaintiff Michael Tucker.
The Plaintiff in this putative class action seeks to certify two
classes: a class of all Missouri purchasers of 2011–2018 Focus
vehicles (the Declaratory Relief Class), and a class of all
Missouri purchasers of 2011–2018 Focus vehicles that exhibited
any degree of rust on the subframe or undercarriage (the
Manifestation Class).
But it is apparent from the outset that neither class can legally
be certified. The putative Declaratory Relief Class cannot be
certified because it includes countless putative class members who
have not sustained an Article III injury and therefore lack
standing -- and because Plaintiff himself lacks standing to pursue
declaratory relief, the Defendant contends.
The putative Manifestation Class cannot be certified because (1) it
includes putative class members who have no standing and cannot be
ascertained, and (2) the need to determine the existence of
corrosion and its cause defeats predominance.
If this Court nevertheless determines that Plaintiff can continue
to pursue his class claims, at least until he moves for class
certification and is required to prove all of the requirements of
Rule 23, any class should be limited now to purchasers of 2018
Focus vehicles, i.e., the model vehicle Plaintiff purchased.
Plaintiff has no standing to represent consumers who purchased
vehicles he did not purchase, and he should not be allowed to
pursue discovery with respect to those vehicles. Further, Plaintiff
is precluded by the terms of his express warranty from litigating
his warranty-related claims on a class basis.
Ford Motor Company is an American multinational automobile
manufacturer headquartered in Dearborn, Michigan.
A copy of the Defendant's motion dated June 13, 2022 is available
from PacerMonitor.com at https://bit.ly/3QoR2uv at no extra
charge.[CC]
The Defendant is represented by:
John M. Thomas, Esq.
Krista L. Lenart, Esq.
DYKEMA GOSSETT PLLC
2723 South State Street, Suite 400
Ann Arbor, MI 48104
Telephone: (734) 214-7660
E-mail: jthomas@dykema.com
klenart@dykema.com
- and -
Laura K. Brooks, Esq.
Stephen Bledsoe, Esq.
Berkowitz Oliver LLP
2600 Grand Boulevard, Suite 1200
Kansas City, MO 64108
Telephone: (816) 561-7007
Facsimile: (816) 561-1888
E-mail: lbrooks@berkowitzoliver.com
sbledsoe@berkowitzoliver.com
GALERIE BUCHHOLZ: Website Not Accessible to Blind, Miller Alleges
-----------------------------------------------------------------
KIMBERLY MILLER, ON BEHALF OF HERSELF AND ALL OTHER PERSONS
SIMILARLY SITUATED v. GALERIE BUCHHOLZ NY INC., Case No.
1:22-cv-04843 (S.D.N.Y., June 9, 2022) alleges that the Defendant
failed to design, construct, maintain, and operate its website to
be fully accessible to and independently usable by Plaintiff and
other blind or visually-impaired people.
The Defendant's denial of full and equal access to its website, and
therefore denial of its products and services offered thereby, is a
violation of rights under the Americans with Disabilities Act, says
the suit.
The Plaintiff is a visually-impaired and legally blind person who
requires screen-reading software to read website content using her
computer. The Plaintiff uses the terms "blind" or
"visually-impaired" to refer to all people with visual impairments
who
meet the legal definition of blindness in that they have a visual
acuity with correction of less than or equal to 20 x 200. Some
blind people who meet their definition have limited vision. Others
have no vision.
In a September 25, 2018 letter to U.S. House of Representative Ted
Budd, U.S. Department of Justice Assistant Attorney General Stephen
E. Boyd confirmed that public accommodations must make the websites
they own, operate, or control equally accessible to individuals
with disabilities. Assistant Attorney General Boyd's letter
provides:
The Department [of Justice] first articulated its interpretation
that the ADA applies to public accommodations' websites over 20
years ago. This interpretation is consistent with the ADA's title
III requirement that the goods, services, privileges, or
activities
provided by places of public accommodation be equally accessible to
people with disabilities.
Based on a 2010 U.S. Census Bureau report, approximately 8.1
million people in the United States are visually-impaired,
including 2.0 million who are blind, and according to the American
Foundation for the Blind's 2015 report, approximately 400,000
visually-impaired persons live in the State of New York.
Because Defendant's website, https://www.galeriebuchholz.de/, is
not equally accessible to blind and visually-impaired consumers, it
violates the ADA. Plaintiff seeks a permanent injunction to cause a
change in Defendant's corporate policies, practices, and procedures
so that the Defendant's website will become and remain accessible
to blind and visually-impaired consumers, the suit added.
The Plaintiff is a blind, visually-impaired handicapped person and
a member of member of a protected class of individuals under the
ADA.
Defendant Galerie Buchholz operates the Galerie Buchholz online and
physical art gallery as well as the Galerie Buchholz website and
advertises, markets, and operates in the State of New York and
throughout the United States. This online and physical art gallery
constitutes a place of public accommodation. The Defendant's
Website provides consumers with access to an array of goods
including information about purchasing art pieces and other
products available in their gallery location, and to ascertain
information relating to location and hours of their physical art
gallery, and pricing, exhibit information, featured artwork and
artists, and privacy policies on their website.[BN]
The Plaintiff is represented by:
Michael A. LaBollita, Esq.
Jeffrey M. Gottlieb, Esq.
Dana L. Gottlieb, Esq.
GOTTLIEB & ASSOCIATES
150 East 18th Street, Suite PHR
New York, NY 10003
Telephone: (212) 228-9795
Facsimile: (212) 982-6284
E-mail: Michael@gottlieb.legal
Jeffrey@gottlieb.legal
Dana@gottlieb.legal
GEICO CASUALTY: Court Modifies Class Cert Briefing Schedule in Day
------------------------------------------------------------------
In the class action lawsuit captioned as JESSICA DAY v. GEICO
CASUALTY COMPANY, GEICO INDEMNITY COMPANY, and GEICO GENERAL
INSURANCE COMPANY, Case No. 5:21-cv-02103-BLF (N.D. Cal.), the
Hon. Judge Beth Labson Freeman entered an order granting the
parties' joint stipulation to modify class certification briefing
schedule as follows:
-- The Defendants' deadline to August 10, 2022
file response:
-- The Plaintiff's deadline to September 15, 2022
file reply:
GEICO operates as an insurance company.
A copy of the Parties' motion dated June 13, 2022 is available from
PacerMonitor.com at https://bit.ly/3OfLlx6 at no extra charge.[CC]
The Plaintiff is represented by:
Matthew Morgan, Esq.
NICHOLS KASTER, LLP
80 S 8th St
Minneapolis, MN 55402
Telephone: (877) 448-0492
The Defendant is represented by:
Damon N. Vocke, Esq.
Ronald M. Lepinskas, Esq.
Daniel B. Heidtke, Esq.
DUANE MORRIS LLP
30 S 17th St.,
Philadelphia, PA 19103-4196
GLENS FALLS: Richard Seeks Final Approval of Class Settlement
-------------------------------------------------------------
In the class action lawsuit captioned as DAPHNE RICHARD,
Individually and on behalf of all others similarly situated, v.
GLENS FALLS NATIONAL BANK, ARROW FINANCIAL CORPORATION, AND
SARATOGA NATIONAL BANK & TRUST COMPANY, Case No.
1:20-cv-00734-BKS-DJS (N.D.N.Y.), the Plaintiff asks the Court to
enter an order:
1. granting final approval of the class action settlement;
2. granting final certification of the Settlement Class;
3. granting Plaintiff's request for attorney's fees and
costs;
4. granting Plaintiff's request for approval of class
administrator expenses; and
5. granting Plaintiff's request for a service award to the
class representative, together with such other and further
relief as the Court may deem just and proper.
Glens Falls is one of two subsidiary banks of the multi-bank
holding company Arrow Financial Corporation. The Bank was founded
in 1851 in Glens Falls.
A copy of the Plaintiff's motion dated June 13, 2022 is available
from PacerMonitor.com at https://bit.ly/3tzrcdJ at no extra
charge.[CC]
The Plaintiff is represented by:
J. Patrick Lannon, Esq.
CHERUNDOLO LAW FIRM, PLLC
AXA Tower I, 15th Floor
100 Madison Street
Syracuse, New York 13202
Telephone: (315) 449-9500
Facsimile: (315) 449-0804
E-mail: plannon@cherundololawfirm.com
- and -
Taras Kick, Esq.
THE KICK LAW FIRM, APC
815 Moraga Drive
Los Angeles, CA 90401
Telephone: (310) 395-2988
Facsimile: (310) 395-2088
E-mail: taras@kicklawfirm.com
- and -
Kevin P. Roddy, Esq.
WILENTZ, GOLDMAN
& SPITZER, P.A.
90 Woodbridge Center Drive, Suite 900
Woodbridge, NJ 07095
Telephone: (732) 636-8000
Facsimile: (732) 726-6686
E-mail: kroddy@wilentz.com
GOT GUARD: Hooks Sues Over Unpaid Wages for Security Guards
-----------------------------------------------------------
ALEX HOOKS, on behalf of himself and all others similarly situated,
Plaintiff v. GOT GUARD, INC.; WARNER SECURITY, INC.; NIYAZ NOMAIR;
and DOES 1-10, inclusive, Defendants, Case No. 22VECV00776 (Cal.
Super., Los Angeles Cty., June 8, 2022) is a class action against
the Defendants for violations of the California Labor Code and the
California's Business and Professions Code including failure to pay
overtime wages, failure to pay minimum wages, failure to provide
proper meal periods, failure to provide proper rest periods,
failure to provide proper wage statements, failure to timely pay
wages upon termination, and unfair competition.
The Plaintiff worked for the Defendants as a security guard from
2020 through approximately September of 2021.
Got Guard, Inc. is a provider of security services in California.
Warner Security, Inc. is a provider of security services in
California. [BN]
The Plaintiff is represented by:
Brent S. Buchsbaum, Esq.
Laurel N. Haag, Esq.
LAW OFFICES OF BUCHSBAUM & HAAG, LLP
100 Oceangate, Suite 1200
Long Beach, CA 90802
Telephone: (562) 733-2498
Facsimile: (562) 628-5501
E-mail: brent@buchsbaumhaag.com
laurel@buchsbaumhaag.com
HAWKINS NEW YORK: Lawal Files ADA Suit in S.D. New York
-------------------------------------------------------
A class action lawsuit has been filed against Hawkins New York,
LLC. The case is styled as Rafia Lawal, on behalf of herself and
all others similarly situated v. Hawkins New York, LLC, Case No.
1:22-cv-04763 (S.D.N.Y., June 7, 2022).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Hawkins New York -- https://www.hawkinsnewyork.com/ -- offers
luxurious, accessible, responsibly sourced home goods.[BN]
The Plaintiff is represented by:
Yitzchak Zelman, Esq.
MARCUS & ZELMAN LLC
701 Cookman Avenue, Suite 300
Asbury Park, NJ 07712
Phone: (845) 367-7146
Fax: (732) 298-6256
Email: yzelman@marcuszelman.com
HEALTH ENROLLMENT: Ketayi Allowed to File Fourth Amended Complaint
------------------------------------------------------------------
In the case, ERIC KETAYI, and MIRYAM KETAYI, both individually and
on behalf of all others similarly situated and for the benefit of
the general public, Plaintiffs v. HEALTH ENROLLMENT GROUP, et al.,
Defendants, Case No.: 20-cv-1198-GPC-KSC (S.D. Cal.), Judge Gonzalo
P. Curiel of the U.S. District Court for the Southern District of
California issued an order:
(i) granting the Plaintiffs' Motion for Leave to File Fourth
Amended Complaint; and
(ii) denying as moot Defendant Alliance for Consumers USA,
Inc.'s Motion to Partially Dismiss the Third Amended Class
Action Complaint.
II. ACUSA's Motion to Dismiss
On Sept. 27, 2021, the Clerk of Court entered default against
Defendant Alliance for Consumers USA ("ACUSA"). The Court issued an
order granting ACUSA's motion to set aside default, finding that
"ACUSA's failure to plead or otherwise respond, which led to the
Clerk's entry of default, was excusable and not culpable conduct."
It ordered ACUSA to respond to the Plaintiffs' complaint by Dec.
23, 2021. On Dec. 23, 2021, ACUSA filed the Motion to Partially
Dismiss Plaintiffs' Third Amended Complaint now before the Court.
While ACUSA awaited the Court's ruling on the motion to set aside
default, the Court considered motions to dismiss filed by the other
Defendants in the action. It granted in part the Defendants'
motions to dismiss in a Dec. 3, 2021 Order. As relevant to the
instant motions, in opposing the motions to dismiss on
jurisdictional grounds, the Plaintiffs requested leave to conduct
jurisdictional discovery to clarify Defendant Cost Containment
Group's involvement in the conduct alleged in the Plaintiffs' TAC.
The Court's Order granted in part the Defendants' motion to dismiss
with leave to amend for lack of personal jurisdiction, but also
granted in part the Plaintiffs' request to conduct jurisdictional
discovery, allowing "limited jurisdictional discovery into Cost
Containment Group ("CCG")'s involvement in the verification,
enrollment, and fulfillment process for the Plaintiffs' insurance
plans."
On Dec. 17, 2021, the Plaintiffs served jurisdictional discovery on
CCG, including a notice of a Rule 30(b)(6) deposition. CCG informed
the Plaintiffs that they would not produce a witness for the
deposition, and the Parties alerted the Court to the impasse
concerning whether CCG would be required to provide a Rule 30(b)(6)
deponent on jurisdictional issues. Ultimately, Magistrate Judge
Crawford ordered that the deposition be completed by March 4, 2022,
and ordered that the Plaintiffs move to amend their complaint by
March 18, 2022. The Plaintiffs filed the instant motion for leave
to amend their complaint on March 18, 2022.
Upon Judge Curiel's review of the proposed Fourth Amended Complaint
("4AC"), it appears that the Plaintiffs have now omitted the cause
of action that was Count One of the Third Amended Complaint
("TAC"). ACUSA's motion to partially dismiss the Plaintiffs' TAC
seeks only to dismiss Count One of the Complaint, "on the basis
that they lack standing to seek injunctive relief."
At this stage in the proceedings, the Plaintiffs no longer seek to
pursue Count One of their TAC, which alleged the Defendants'
violation of California's Unfair Competition Law. Judge Curiel
grants the Plaintiffs' motion for leave to amend their complaint
and file a 4AC. Accordingly, ACUSA's motion to dismiss Count 1 of
the Complaint is now moot. Judge Curiel denies as moot ACUSA's
motion to partially dismiss the TAC.
III. Plaintiffs' Motion for Leave to Amend the Complaint
The Plaintiffs now ask for leave to file a 4AC. In support of the
motion, they assert that the changes to the TAC reflected in the
proposed 4AC "serve two primary purposes: (1) to add additional
jurisdictional allegations uncovered during the jurisdictional
discovery against CCG" as authorized by the Court's December Order
granting in part CCG's motion to dismiss and allowing Plaintiffs to
pursue limited jurisdictional discovery. Defendant CCG opposed the
motion.
The first three factors the Court considers under Rule 15(a)(2) is
whether the amended pleading is the product of undue delay, whether
the request for leave to amend is made in bad faith or with
dilatory motive, and whether the movant has repeatedly failed to
cure deficiencies by amendment. CCG's opposition to the Plaintiffs'
motion presents no arguments on these three factors.
First, taking into consideration the procedural history of the
case, and the Plaintiffs' specific efforts to gain a better
understanding of CCG's role in the alleged conduct, Judge Curiel
finds that the Plaintiffs' request for leave to amend the complaint
is not due to repeated failures to cure previously identified
deficiencies. Under the circumstances in the case, Judge Curiel
finds that the filing of the motion and the proposed amended
complaint incorporating jurisdictional allegations, is not the
product of undue delay. Indeed, the Plaintiffs heeded the Court's
instructions and Judge Crawford's deadlines to complete such
discovery and file an amended pleading within the tight timelines
set forth. Similarly, there is no indication that the motion for
leave to amend was made in bad faith. Last, while this amended
pleading would be the Plaintiffs' 4AC, the amended pleadings in the
case have not been the result of the Plaintiffs' neglect or failure
to make sufficient efforts to prosecute the case.
Second, the party opposing the amendment has the burden of
demonstrating the prejudice they expect to face because of the
proposed amendment. CCG has made no representations that they will
face undue prejudice if the Plaintiffs are permitted to amend their
complaint. To be sure, allowing the Plaintiffs to amend their
complaint will require CCG to continue to participate in and
litigate the case. However, CCG has the burden to demonstrate that
they will be unduly prejudiced by amendment, and having failed to
make any such claims of prejudice, Judge Curiel finds that this
factor weighs in favor of the Plaintiffs.
Finally, Judge Curiel holds that the inquiry at this stage is
whether the Plaintiffs' proposed amendment is futile, not a sua
sponte review of the pleading for whether it passes Rule 12(b)(2)
or 12(b)(6) muster. He reiterates that Rule 15 provides a liberal
amendment standard. From a review of the proposed 4AC, it appears
the Plaintiffs have incorporated jurisdictional allegations in the
4AC that were developed through discovery. That "CCG will once
again move to dismiss for lack of personal jurisdiction," is not
sufficient reason to find that amendment is futile.
Accordingly, having found that the five factors under Rule 15(a)
weigh in favor of granting the Plaintiffs' motion for leave to
amend their complaint, Judge Curiel grants the motion. The
Plaintiff is directed to file the proposed 4AC, as it appears at
ECF No. 211-2, as their 4AC.
IV. Conclusion
For the foregoing reasons, Judge Curiel grants the Plaintiffs'
Motion for Leave to File a Fourth Amended Complaint. He denies as
moot ACUSA's motion to partially dismiss the Plaintiffs' TAC.
A full-text copy of the Court's June 8, 2022 Order is available at
https://tinyurl.com/35kfywpm from Leagle.com.
HI Q INC: Case Management & Pretrial Deadlines Extension Sought
---------------------------------------------------------------
In the class action lawsuit captioned as TOBY HOY, individually,
and on behalf of all others similarly situated, v. HI Q., Inc.
d/b/a Heath IQ, Case No. 4:21-cv-04875-YGR (N.D. Cal.), the Parties
jointly request an adjustment to the Case Management and Pretrial
Order to extend the outstanding deadlines, specifically, the
Parties request the following:
Event Old New
Deadline Deadline
-- Case Management Conference Oct. 3, 2022 At the Court's
preference
-- Referred for Private May 17, 2022 Nov. 17, 2022
Mediation to be Completed
by:
-- Non-Expert Discovery Cutoff: July 1, 2022 Jan. 13, 2023
-- Disclosure of Expert Reports:
Opening: July 26, 2022 Feb. 2, 2023
Rebuttal: Aug. 26, 2022 March 2, 2023
-- Expert Discovery Cutoff: Sept. 22, 2022 March 23, 2023
A copy of the Parties' motion dated June 13, 2022 is available from
PacerMonitor.com at https://bit.ly/3HoHlbj at no extra charge.[CC]
HIGHMARK BCBSD: Parties Must File Case Management Order by June 21
------------------------------------------------------------------
In the class action lawsuit captioned as WALKER v. HIGHMARK BCBSD
HEALTH OPTIONS, INC., Case No. 2:20-cv-01975 (W.D. Pa.), the Hon.
Judge Christy Criswell Wiegand entered an order that the parties
shall file a joint proposed case management order on or before June
21,2022.
The Court said, "The parties should propose an appropriate
discovery and motions schedule that takes into account the pending
mediation and related considerations. The Court appreciates the
parties' efforts to explore settlement and recognizes their
interest in avoiding spending time and resources on discovery
matters that may prove unnecessary in the event of a successful
mediation; however, this case approximately 18 months old and is
still in the discovery phase, with neither class certification nor
summary judgment motions (if any) having even been filed yet."
The nature of suit Other Statutory Actions.
Highmark Health is a Medicaid managed care organization.[CC]
HILTON RESORTS: Chavez Wage-and-Hour Suit Goes to C.D. California
-----------------------------------------------------------------
The case styled JUAN MANUEL PARRA CHAVEZ, individually and on
behalf of all others similarly situated v. HILTON RESORTS
CORPORATION, HILTON RESERVATIONS WORLDWIDE, LLC, HILTON HOTEL
EMPLOYER LLC, and HILTON MANAGEMENT, LLC, and DOES 1-50, inclusive,
Case No. 30-2022-01248249-CU-OE-CXC, was removed from the Superior
Court in the State of California for the County of Orange to the
U.S. District Court for the Central District of California on June
8, 2022.
The Clerk of Court for the Central District of California assigned
Case No. 8:22-cv-01133 to the proceeding.
The case arises from the Defendants' alleged violations of the
California Labor Code and the California's Business and Professions
Code including failure to pay minimum wages, failure to pay
overtime wages, failure to pay timely wages, failure to pay timely
wages, failure to provide meal breaks, failure to provide rest
periods, failure to provide and maintain accurate itemized wage
statements and maintain records, failure to pay timely wages upon
termination, failure to pay for necessary expenses, and unlawful
business practices.
Hilton Resorts Corporation is a hospitality company headquartered
in Orlando, Florida.
Hilton Reservations Worldwide, LLC is a hospitality company
headquartered in Virginia.
Hilton Hotel Employer LLC is a hospitality company headquartered in
Virginia.
Hilton Management, LLC is a hospitality company headquartered in
Virginia. [BN]
The Defendants are represented by:
Cynthia L. Filla, Esq.
Connie L. Chen, Esq.
Paul J. Cohen, Esq.
JACKSON LEWIS P.C.
725 South Figueroa Street, Suite 2500
Los Angeles, CA 90017-5408
Telephone: (213) 689-0404
Facsimile: (213) 689-0430
E-mail: Cynthia.Filla@jacksonlewis.com
Connie.Chen@jacksonlewis.com
Paul.Cohen@jacksonlewis.com
HOOSIER CONTRACTORS: Denial of Summary Judgments in Gardner Upheld
------------------------------------------------------------------
In the case, Hoosier Contractors, LLC,
Appellant-Plaintiff/Cross-Appellee/Counterclaim Defendant v. Sean
Gardner, Appellee-Defendant/Cross-Appellant/Counterclaimant, Court
of Appeals Case No. 21A-CT-1331 (Ind. App.), the Court of Appeals
of Indiana issued an order affirming the trial court's:
a. denial of Hoosier's motion for partial summary judgment;
b. denial of Gardner's motion for partial summary judgment;
c. order addressing notice of class action.
I. Introduction
Hoosier filed a complaint against Sean Gardner alleging that he
breached a contract that provided for Hoosier to make roof repairs
on Gardner's home. Gardner filed a counterclaim, on behalf of
himself and a class of those similarly situated, alleging that
Hoosier violated the Indiana Deceptive Consumer Sales Act (the
DCSA).
Following the trial court's certification of the class, the parties
filed several motions that have given rise to this appeal. Hoosier
filed a motion for partial summary judgment asserting that the
class lacked standing under the DCSA because they had not suffered
actual damages, which the trial court denied. Gardner filed a
motion to approve class action notice.
In response, the trial court issued an order addressing notice of
class action, which required that the notice advises potential
class members that they could be liable for Hoosier's attorney fees
under the DCSA if Hoosier prevailed at trial. Gardner also filed a
motion for partial summary judgment contending that the Contract
was null and void and that its liquidated damages provision was
unenforceable, which the trial court denied.
Hoosier and Gardner appeal these rulings.
II. Background
In December 2015, Gardner contacted Hoosier to request a roof
inspection and obtain an estimate for roof repairs on his
Indianapolis home. On Dec. 12, 2015, two Hoosier representatives
visited Gardner's home. Prior to performing the inspection, Hoosier
required Gardner to sign the Contract, a document entitled
"Replacement Work Agreement." The Contract provided that if the
owner's insurance company did not agree to pay for the proposed
repairs, then the Contract "shall be null and void." It also
contained a clause providing for liquidated damages in the event of
breach of twenty percent of the total Contract price. Gardner
signed the Contract, and Hoosier inspected his roof. Gardner
submitted a claim for roof repairs to his homeowner's insurance
provider, Cincinnati Insurance.
On Jan. 6, 2016, Cincinnati issued a "Scope of Work" document,
which was provided to Hoosier and Gardner, containing an itemized
list of the work Hoosier would perform on Gardner's home and the
estimated cost for each item. The total estimated cost of the work
was $50,619.46. According to Joshua White, Hoosier's president, the
Scope of Work indicated Cincinnati's approval of the repair work
and the estimated cost. Gardner's deductible for his homeowner's
insurance policy was $5,000.
Mr. Gardner informed Hoosier that he believed that some of the
items outlined in the Scope of Work were unnecessary, "asked for an
adjustment of the insurance claim, and retained Spartan Claims, LLC
to work with Cincinnati on the adjustment." For approximately two
weeks during January, Cincinnati exchanged emails with Spartan
"regarding supplements and adjustments to the Scope of Work
originally approved by Cincinnati." On January 22, Cincinnati
issued an updated Scope of Work, which "was substantially the same
as the original claim, except for pricing and costs assigned to
certain line items associated with replacement of the roof." The
total estimated cost of the updated Scope of Work was $59,489.78.
Hoosier paid Spartan's fee of $2,217.58. According to White, "This
is money Gardner did not pay but received the benefit of as the
supplement was paid by Cincinnati."
At some point, Hoosier provided Gardner with a written notice of
his right to cancel. This notice provided that if Gardner was
notified by his insurance company that all or any part of the claim
or the Contract was not a covered loss, he could "cancel the
Contract by mailing or delivering a signed and dated copy of this
cancellation notice." Although Hoosier attempted to schedule
repairs "approved by Cincinnati Insurance, Gardner refused to agree
to a scheduled time for completion of the repairs." "Hoosier never
performed the agreed-upon repairs to Gardner's roof." "Gardner did
not indicate to Hoosier any desire or intent to cancel or repudiate
the Contract."
Cincinnati paid Gardner for the claim he filed. Hoosier alleges
that Cincinnati paid Gardner "nearly $60,000" for roof repairs, but
the portion of the record that it cites does not specify the amount
Gardner received from Cincinnati. The record shows that Gardner
received two or three checks from Cincinnati for roof repairs but
does not indicate the amount of money he actually received from
Cincinnati. Gardner paid another company approximately $18,000 to
repair his roof.
In February 2016, Hoosier filed a breach of contract claim against
Gardner. Gardner filed a counterclaim with a putative class action,
which he later amended. In his amended counterclaim, Gardner
alleged that the Contract violated numerous requirements under the
Home Improvement Contractors Act (the HICA), Indiana Code Chapter
24-5-11. Further, Gardner alleged that the HICA violations were
used by Hoosier as part of a "scheme, artifice, or device" intended
to mislead Indiana residents into executing home improvement
contracts, which constituted an "incurable deceptive act"
actionable by a consumer under the DCSA, Indiana Code Chapter
24-5-0.5.
In January 2017, Hoosier filed a motion for summary judgment, which
the trial court denied. In so doing, the trial court found as
follows: Hoosier's contract appears to contain at least two prima
facie violations of HICA's requirements. First, the Contract does
not contain a price for the home improvement work to be performed
as required by IC Section 24-5-11-10(a)(8). Second, the Contract
does not include a description of the work to be performed as
required by IC Section 24-5-11-10(a)(4).
In July 2018, Gardner filed a motion to certify class action. In
December 2018, the trial court granted the motion and certified the
class as follows: "All persons who entered into a Home Improvement
Contract with Hoosier Contractors, LLC from Feb. 12, 2014 until
such time that Hoosier stopped utilizing said Contract(s) and began
utilizing a Home Improvement Contract that was in compliance with
the HICA."
In February and March 2020, the parties filed the motions that led
to this appeal. Hoosier filed a motion for partial summary judgment
asserting that the class members lacked standing under the DCSA
because they had not suffered actual damages. Gardner filed a
motion to approve class action notice. He also filed a motion for
partial summary judgment arguing that the Contract was null and
void and that the liquidated damages clause was unenforceable.
Following a hearing, in April 2021, the trial court issued separate
orders denying each party's motion for partial summary judgment. It
also issued an order addressing notice of class action, in which
the court ruled that the notice was required to advise potential
class members that they could be liable for Hoosier's attorney fees
if Hoosier prevails at trial. The appeal and cross-appeal ensued.
III. Discussion
Hoosier appeals the trial court's denial of its motion for partial
summary judgment, and Gardner cross-appeals the trial court's
denial of his motion for partial summary judgment as well as the
court's order addressing notice of class action.
A. Section 1 - The class has standing to bring a claim for
statutory damages under Indiana Code Section 24-5-0.5-4(a).
Hoosier argues that because the class has not suffered actual
damages, the trial court erred in concluding that the class has
standing under Indiana Code Section 24-5-0.5-4(a) of the DCSA. This
argument raises a question of statutory interpretation. "Statutory
interpretation presents a pure question of law for which summary
judgment is particularly appropriate.
Hoosier maintains that because the class members have suffered no
actual injury, they do not have standing to maintain an action.
Gardner contends that a plain reading of the statute conveys
standing on a person who relies on an uncured or incurable
deceptive act to bring an action against the supplier and provides
one of two possible remedies, either the actual damages suffered or
a statutory damage remedy of $500, whichever is greater.
The Court of Appeals agrees with Gardner's interpretation of
Section 24-5-0.5-4(a). It concludes that Section 24-5-0.5-4(a)
provides for a statutory damages award of $500. Accordingly, the
trial court did not err in finding that the class has standing and
in denying Hoosier's motion for partial summary judgment.
B. Section 2 - Pursuant to Section 24-5-0.5-4(b), the trial court
has discretion to award attorney fees to the prevailing party.
Mr. Gardner challenges the court's requirement that the notice
advise potential class members that if the class is unsuccessful at
trial, they could be liable for Hoosier's attorney fees if they are
awarded by the court. He contends that the trial court erred in
applying Section 24-5-0.5-4(b).
The Court of Appeals applies the unambiguous language of the
statute and leaves it to the trial court's discretion to determine
whether the circumstances of the case warrant an award of attorney
fees to the prevailing party. That said, it would certainly be
within the trial court's discretion to consider whether the
Plaintiff's action is frivolous, unreasonable, or groundless, but
other factors could be consequential depending on the case. And it
is too soon at this early stage of the proceedings to conclude that
Gardner and the class members cannot be held liable for Hoosier's
attorney fees should Hoosier prevail. Accordingly, he Court of
Appeals concludes that the trial court did not err in requiring the
notice of class action to advise potential class members that they
may be liable for Hoosier's attorney fees.
C. Section 3 - Genuine issues of material fact exist as to whether
the Contract is null and void.
Mr. Gardner asserts that he is entitled to summary judgment on
Hoosier's breach of contract claim because the Contract is null and
void. The parties do not dispute that if Cincinnati did not agree
to pay for the proposed repair, the Contract would be null and
void. However, the parties dispute whether Cincinnati agreed to pay
for Hoosier's repairs. Gardner contends that the designated
evidence shows that there was never a final agreement between
Hoosier and Cincinnati on the price Cincinnati would pay for the
repairs.
Considering the evidence in support of Hoosier as the nonmovant and
the reasonable inferences arising therefrom, the Court of Appeals
concludes that the possibility exists that after the email,
Cincinnati and Spartan reached an agreement on the estimated cost
reflected in the updated Scope of Work. Therefore, a genuine issue
of material fact exists as to whether the Contract is null and
void. Accordingly, the Court of Appeals affirms the trial court's
denial of Gardner's partial summary judgment motion on this issue.
D. Section 4 - A determination as to whether the liquidated damages
clause is enforceable is premature.
Last, Gardner contends that he is entitled to summary judgment on
his claim that the Contract's liquidated damages clause is an
unenforceable penalty. The Contract provided for liquidated damages
of twenty percent of the total Contract price if the homeowner
breached any obligation under the Contract. "While liquidated
damages clauses are ordinarily enforceable, contractual provisions
that constitute penalties are not."
In this stage of the proceedings, the Court of Appeals holds that
there are numerous unresolved issues as to whether the Contract
violates the HICA, whether such violations constitute an incurable
deceptive act under the DCSA, whether the Contract is null and void
because Cincinnati failed to agree to the requested repairs, and
whether Gardner breached the Contract. These issues make a
determination regarding the liquidation clause premature.
Accordingly, the Court of Appeals affirms the trial court's denial
of summary judgment on this issue.
IV. Decision
The Court of Appeals affirms.
A full-text copy of the Court's June 8, 2022 Order is available at
https://tinyurl.com/msenjm8n from Leagle.com.
William N. Riley -- wriley@rileycate.com -- Russell B. Cate --
rcate@rileycate.com -- Sundeep Singh -- ssingh@rileycate.com --
RileyCate, LLC, in Fishers, Indiana, Attorneys for the Appellant.
Paul L. Jefferson -- PJefferson@McNeelyLaw.com -- Scott A. Milkey
-- SMilkey@McNeelyLaw.com -- Bradley J. Buchheit --
BBuchheit@McNeelyLaw.com -- McNeely Law, LLP, in Indianapolis,
Indiana, Attorneys for the Appellee.
HUDSON'S BAY: Class Settlement in Data Breach Suit Gets Final Nod
-----------------------------------------------------------------
In the case, IN RE HUDSON'S BAY COMPANY DATA SECURITY INCIDENT
CONSUMER LITIGATION, Case No. 18-cv-8472 (PKC) (S.D.N.Y.), Judge P.
Kevin Castel of the U.S. District Court for the Southern District
of New York:
(i) grants the Plaintiffs' unopposed motion for final approval
of class action settlement; and
(ii) grants in part and denies in part their motion for an
award of attorneys' fees and expenses.
I. Background
The Plaintiffs have filed an unopposed motion for final approval of
class action settlement and separately move for an award of
attorneys' fees and expenses. Judge Castel's Opinion sets forth the
Court's reasons for granting final approval to the class action
settlement and granting a reduced award of attorneys' fees. He
separately enters a Final Approval Order and Judgment that conforms
with the conclusions set forth therein.
The Plaintiffs bring numerous state law claims directed to a breach
of payment-card information belonging to customers who made
purchases at the brick-and-mortar retail locations of Lord &
Taylor, Saks and Saks OFF 5TH stores between May 1, 2017, and April
1, 2018. The Defendants are Hudson's Bay Company ULC, Saks Inc.,
Saks Fifth Avenue LLC, Saks & Co. LLC and Lord & Taylor LLC.
A Second Consolidated Class Action Complaint consolidated the
claims of plaintiffs who originally commenced three separate
consumer class actions directed to the defendants' data breach.
Before consolidation, three putative consumer class actions brought
claims directed to the data breach: Beekman v. Lord & Taylor, LLC,
19 Civ. 4199 (PKC), which was originally filed in the District of
Delaware; Sacklow, et al. v. Saks Inc., 19 Civ. 4186 (PKC), which
was originally filed in the Middle District of Tennessee; and
Rudolph v. Saks & Co. LLC, 18 Civ. 8472 (PKC), which was originally
filed in the Central District of California. The Rudolph action was
transferred to this District following a joint stipulation of the
parties, and the Beekman and Sacklow actions were transferred after
defendants successfully moved pursuant to 28 U.S.C. Section
1404(a). The Court consolidated the three cases and
administratively closed the Beekman and Sacklow cases.
The Second Consolidated Amended Class Action Complaint brings
common law claims of negligence, breach of implied contract, unjust
enrichment and "breach of confidence," as well as statutory claims
under consumer-protection and data-privacy laws of Arizona,
California, Connecticut, Florida, Illinois, New Jersey, New York,
Texas, Nevada and Georgia. The parties reached an agreement in
principle, to settle the case after a motion to dismiss the Second
Consolidated Amended Class Action Complaint was fully briefed but
before it was decided.
The Plaintiffs assert that a syndicate called "JokerStash" or
"Fin7" accessed cardholder information, and then sold it on the
so-called dark web. They assert that the breach caused them to
spend time monitoring their accounts, safeguarding account
information, and, for some plaintiffs, resolving fraudulent charges
and withdrawals. Subject matter jurisdiction is premised on the
Class Action Fairness Act of 2005, 28 U.S.C. Section 1332(d).
The Plaintiffs filed a motion for preliminary approval of the class
action settlement on May 27, 2021. The Court granted the motion for
preliminary approval but modified the proposed procedures for
objecting to the settlement.
The settlement provides for a $30 payment to any "Tier 1" claimant
who submits proof of a payment transaction during the period of the
breach and confirms that he or she spent some amount of time
monitoring account information after the breach. A "Tier 2"
claimant will be reimbursed for documented out-of-pocket expenses
incurred as a result of the breach, such as costs and expenses
related to identity theft or fraud, late fees, and unauthorized
charges and withdrawals, in an amount not to exceed $5,000 per
claimant.
Unlike a common fund settlement, this settlement is structured with
aggregate caps in the amounts of a $2 million payment to class
members, $1.4 million in attorneys' fees and expenses, $250,000 for
the costs of claims administration, and $15,000 total for service
awards to the Individual Plaintiffs. As will be seen, the claims
sought by the class members are far below the aggregate cap of
payments allocated to class members.
The deadline for class members to submit claims has passed, and the
total amount to be paid to the class is $278,483.81 -- less than
14% of the $2 million "Aggregate Cap." The Plaintiffs' application
for attorneys' fees nevertheless treats the settlement as something
akin to a common fund with an overall value of $3,665,000, and
seeks a percentage-based fees award of 36.7% from that amount,
totaling $1,346,799.40. There is, in fact, no common fund, as that
term is commonly understood in class action litigation. Plaintiffs
do not seek a lodestar-based award and have not submitted billing
records or other documentation that details the work of counsel on
this case.
No class members have opted out of the class and no objections have
been made to the settlement. Judge Castel conducted a fairness
hearing on Jan. 11, 2022, which was continued to March 1, 2022.
Among other things, he inquired about the adequacy of notice to the
class, the details of the claims-submission process and the number
of claims submitted by the class members. The fairness hearing
confirmed, among other things, that the unclaimed portions of the
"Aggregate Cap" were not and would never be paid by Hudson's Bay,
explored the means used to provide notice to the class members as
compared to other alternatives, and the manner in which claims
could be submitted. Judge Castel reserved decision on final
approval and the fees application.
II. Discussion
A. Motion for Final Settlement Approval
Having reviewed the factors set forth by Rule 23(e)(2) and the
additional factors set forth in the Second Circuit's Grinnell
decision, Judge Castel concludes that the proposed settlement is
fair, reasonable and adequate to the class. The settlement will
therefore be finally approved, as set forth in a separate Order.
Among other things, Judge Castel finds that (i) the adequacy of
class representation on the part of the Plaintiffs' counsel and the
Plaintiffs weighs in favor of the proposed settlement; (ii) the
settlement was negotiated at arm's length; (iii) the plan of
allocation compensates members of the class equitably relative to
each other; (iv) the size of settlement in the range of possible
recovery; and (v) the class received the best notice that was
practicable under the circumstances, mindful of the practical
problems presented in this case in contacting cardholders
directly.
B. Motion for Attorneys' Fees
The Plaintiffs' counsel seeks $1,346,799.40 in attorneys' fees and
$53,200.60 for the reimbursement of expenses, for a total award of
$1.4 million. They state that the combined lodestar of their fees
is $3,161,788.36, based on 4,666.03 hours of attorney and
professional time, and that the application reflects a negative
lodestar multiplier of 0.44. In support of the application, the
Plaintiffs have submitted attorney declarations from the fourteen
law firms that have participated in the case.
No matter which method is chosen, district courts should continue
to be guided by the traditional criteria, known as the Goldberger
factors, in determining a reasonable common fund fee, including:
(1) the time and labor expended by counsel; (2) the magnitude and
complexities of the litigation; (3) the risk of the litigation; (4)
the quality of representation; (5) the requested fee in relation to
the settlement; and (6) public policy considerations." "A district
court can avoid a 'windfall' by adjusting 'the percentage awarded
in order to come up with a fee it deems reasonable in light of the
Goldberger factors.'"
Having reviewed the Goldberger factors and considered the structure
of the parties' settlement, Judge Castel applies a one-third
reduction to the Plaintiffs' requested fees award of $1,346,799.40,
and award fees in the total amount of $897,866.26. Among other
things, he finds that (i) the unpaid portions of the "Aggregate
Cap" did not inure to the benefit of the class; (ii) the hourly
rates of the attorneys and legal support staff are reasonable;
(iii) the risks of litigation weigh in favor of an award of an
attorneys' fees award; (iv) the quality of representation weighs in
favor of an award of attorneys' fees; (v) the requested fee's
relation to the settlement weighs against the size of the fees
request; (vi) public policy weighs in favor of an attorneys' fees
award; and (vii) there have been no objections to the settlement
and no requests to opt out of the class.
The out-of-pocket expenses are summarized in the attorney
affidavits submitted by the 14 Plaintiff firms. They include
routine expenses such as the mediator fee, expert fees, travel,
meals, filing fees, legal research, photocopying and service of
process expenses. Judge Castel finds that expenses are reasonable
and the application for their reimbursement will be granted.
C. The Plaintiffs' Application for Service Awards
The Plaintiffs seek a service award of $1,000 to each of the 15
Individual Plaintiffs. Each Plaintiff has submitted a declaration
that describes his or her participation in the litigation, as well
as time spent personally responding to the data breach.
Judge Castel finds that the Plaintiffs do not identify any special
risks or burdens that warrant a service award. Therefore, to the
extent that the Plaintiffs' declarations seek a service award for
time spent monitoring their accounts, resolving fraudulent
withdrawals and charges, or any out-of-pocket expenses connected to
the breach, their application is denied.
The Plaintiffs also have not identified risks associated with their
roles as plaintiffs in the case, or, for example, travel expenses,
lost wages, lost opportunities or lost vacation time that they
incurred as a result of their work on behalf of the class. So, they
have not demonstrated that a service award is warranted, and their
application for a service award will be denied.
III. Conclusion
For the reasons he explained, Judge Castel grants the Plaintiffs'
motion for final approval of the class action settlement. He grants
the Plaintiffs' motion for an award of attorneys' fees in the
amount of $897,866.26, and their application for the reimbursement
of reasonable expenses in the amount of $53,200.60. He denies the
Plaintiffs' application for service awards.
The Plaintiffs are directed to file a revised Proposed Final
Approval Order and Judgment that conforms to the Opinion.
The Clerk is respectfully directed to terminate motions 183 and
185.
A full-text copy of the Court's June 8, 2022 Opinion is available
at https://tinyurl.com/2cxheypr from Leagle.com.
IBM CORP: Adams and Movants to Confer on Appointment of Lead Roles
------------------------------------------------------------------
Judge Vincent L. Briccetti of the U.S. District Court for the
Southern District of New York issues an Order regarding the
appointment of the Lead Plaintiff(s) and the Lead Counsel in the
case, JUNE E. ADAMS IRREVOCABLE TRUST DATED 7/21/14 FBO EDWARD
ROBERT ADAMS, individually and on behalf of all others similarly
situated, Plaintiff v. INTERNATIONAL BUSINESS MACHINES CORPORATION,
VIRGINIA M. ROMETTY, MARTIN J. SCHROETER, JAMES J. KAVANAUGH, and
ARVIND KRISHNA, Defendants, Case No. 22 CV 2831 (VB) (S.D.N.Y.).
Before the Court are motions filed by each of the following Movants
on June 6, 2022, to be appointed the Lead Plaintiff(s) and to
approve each Movant's selection of counsel as the lead counsel in
the putative securities class action: (i) the June E. Adams
Irrevocable Trust Dated 7/21/14 FBO Edward Robert Adams; (ii)
Michael Churton; (iii) the Iron Workers Local 580 Joint Funds; (iv)
Bruce Scotland, Sarah Scotland, Rebecca Scotland, Priscilla
Scotland, and Jessica Ploeger; and (v) the City of Hallendale Beach
Police Officers' and Firefighters' Personnel Retirement Trust.
In the interest of efficient case management, Judge Briccetti
orders the Movants to (i) meet and confer in good faith about
whether the Movants can agree on the appointment of one or more of
the Movants as Lead Plaintiff(s) and (ii) submit a single joint
letter of no more than three pages by June 22, 2022, informing the
Court whether each Movant intends to pursue their motion, as well
as whether the Movants consent to the appointment of one or more of
them as the Lead Plaintiff(s).
If the Movants do not consent to the appointment of one or more of
them as the Lead Plaintiff(s), in the joint letter, they will
propose a briefing schedule for the filing of any responses to the
pending motions. No replies will be permitted without leave of the
Court.
A full-text copy of the Court's June 8, 2022 Order is available at
https://tinyurl.com/5n8jz3nb from Leagle.com
INGLEWOOD SPORTSERVICE: Fails to Pay Proper Wages, Cyiark Alleges
-----------------------------------------------------------------
DEJONE CYIARK, individually and on behalf of other individuals
similarly situated, Plaintiff v. INGLEWOOD SPORTSERVICE, INC.,
Defendant, Case No. 2:22-cv-03906 (C.D. Cal., July 8, 2022) is an
action against the Defendants for failure to pay minimum wages,
overtime compensation, authorize and permit meal and rest periods,
provide accurate wage statements, and reimburse necessary business
expenses.
Plaintiff Cyiark was employed by the Defendant as staff.
INGLEWOOD SPORTSERVICE, INC. provides hospitality and food
services. The Company offers hospitality management, lodging,
travel hospitality, sports facilities management, gaming, and
racetrack operating services. [BN]
The Plaintiff is represented by:
Marcus J. Bradley, Esq.
Kiley L. Grombacher, Esq.
Lirit A. King, Esq.
BRADLEY GROMBACHER, LLP
31365 Oak Crest Drive, Suite 240
Westlake Village, CA 91361
Telephone: (805) 270-7100
Facsimile: (805) 270-7589
Email: mbradley@bradleygrombacher.com
kgrombacher@bradleygrombacher.com
lking@bradleygrombacher.com
INMAR INC: Seeks to Stay Holmes' Class Certification Bid
--------------------------------------------------------
In the class action lawsuit captioned as BRENT D. HOLMES, On Behalf
of Himself and All Others Similarly Situated, v. INMAR, INC., a/k/a
INMAR INTELLIGENCE, INMAR BRAND SOLUTIONS, INC. and W.J. DEUTSCH
SPIRITS, LLC, Case No. 2:21-cv-02093-CSB-EIL (C.D. Ill., the
Defendant asks the Court to enter an order granting its motion to
stay class certification.
Contemporaneously with the filing of its Amended Complaint,
Plaintiff filed a Motion to Certify Suit as Class Action. The
Court's consideration of Plaintiff's Motion for Class Certification
would be premature at this time in light of threshold issues that
Inmar intends to raise in a motion to dismiss, such as whether the
Court has personal jurisdiction over Inmar in Illinois to hear this
matter and whether Holmes has failed to state a claim upon which
relief can be granted. Because of these threshold but significant
issues, this Court should stay ruling on the Plaintiff's Motion for
Class Certification until Inmar's motion to dismiss has been
resolved. This result is permitted by Rule 23, promotes judicial
economy, prevents prejudice to Inmar, and will not prejudice
Holmes, the Defendant said.
Inmar develops technology and data analytics services.
A copy of the Defendant's motion dated June 13, 2022 is available
from PacerMonitor.com at https://bit.ly/3MQPFC7 at no extra
charge.[CC]
The Defendant is represented by:
Jason M. Wenker, Esq.
Elizabeth L. Winters, Esq.
Christin J. Jones, Esq.
KILPATRICK TOWNSEND & STOCKTON LLP
1001 West Fourth Street
Winston-Salem, NC 27101
Telephone: (336) 607-7300
Facsimile: (336) 734-2652
E-mail: jwenker@kilpatricktownsend.com
bwinters@kilpatricktownsend.com
cjones@kilpatricktownsend.com
- and -
John P. Heil, Jr., Esq.
Bryan J. Vayr, Esq.
HEYL, ROYSTER, VOELKER & ALLEN, P.C.
300 Hamilton Boulevard
P.O. Box 6199
Peoria, IL 61601
Telephone: (309) 676-0400
Facsimile: (309) 676-3374
E-mail: JHeil@heylroyster.com
BVayr@helroyster.com
INNOVATIVE HEALTH: Wins Summary Judgment Bid v. Bhambhani Suit
--------------------------------------------------------------
In the class action lawsuit captioned as RITU BHAMBHANI, M.D., et
al., v. INNOVATIVE HEALTH SOLUTIONS, INC., et al., Case No.
1:19-cv-00355-LKG (D. Md.), the Hon. Judge Lydia Kay Griggsby
entered an order:
1. granting the defendants' motion for summary judgment;
2. denying the plaintiffs' motion for leave; and
3. dismissing the third amended complaint.
In sum, the undisputed material facts, in this case, show that
plaintiffs lack standing to pursue their civil Racketeer Influenced
and Corrupt Organizations (RICO) Act and state law claims in this
case. The Plaintiffs also have not shown that good cause exists to
warrant further amendment of the amended complaint.
The Plaintiffs, Dr. Ritu Bhambhani and Dr. Sudhir Rao, bring this
putative class action lawsuit on behalf of themselves and other
similarly situated individuals alleging civil violations of RICO;
fraudulent misrepresentation; intentional misrepresentation by
concealment or non-disclosure; and civil conspiracy claims against
the defendants
The Defendants have moved for summary judgment in their favor with
regards to plaintiffs' claims, upon the ground that plaintiffs lack
standing to bring this action. The Plaintiffs also seek leave to
file a fourth amended complaint.
Innovative Health is a developer of medical devices.
A copy of the Court's order dated June 14, 2022 is available from
PacerMonitor.com at https://bit.ly/3NX2YC7 at no extra charge.[CC]
INSTANT BRANDS: Faces Havens Suit Over Pressure Cooker Defect
-------------------------------------------------------------
MICHELLE HAVENS and ELSIE WILKERSON, on behalf of themselves and
all others similarly situated, Plaintiffs v. INSTANT BRANDS, INC.,
f/k/a DOUBLE INSIGHT INC., d/b/a INSTANT POT(R) COMPANY, Defendant,
Case No. 1:22-cv-02909 (N.D. Ill., June 2, 2022) arises from the
Defendant's alleged violations of the common law of warranty and
unjust enrichment, the Magnuson-Moss Warranty Act, and the
California and Florida consumer protection statutes by selling
defective Instant Pot(R) Electric pressure cooker products.
According to the complaint, the product has a dangerously defective
lid-locking assembly, allowing the lid to open while the contents
of the cooker are under pressure during normal and expected use, so
that its super-heated contents erupt from the cooker, in violation
of UL Standard for Safety for Pressure Cookers, UL 136, scalding
consumers with second- and third-degree burns.
Instant Brands has been aware of this dangerous defect since at
least the year 2016, if not earlier, but fraudulently concealed it,
failed to disclose it, and continued to sell products that had the
defective lid-locking assembly, says the suit.
Instant Brands, Inc. is a Canadian company and brand selling a
range of kitchen appliances.[BN]
The Plaintiffs are represented by:
Shannon M. McNulty, Esq.
CLIFFORD LAW OFFICES, P.C.
120 N. LaSalle Street, 31st Floor
Chicago, IL 60602
Telephone: (312) 899-9090
E-mail: SMM@cliffordlaw.com
- and -
Michael F. Ram, Esq.
Marie N. Appel, Esq.
MORGAN & MORGAN COMPLEX LITIGATION GROUP
711 Van Ness Avenue, Suite 500
San Francisco, CA 94102
Telephone: (415) 358-6913
Facsimile: (415) 358-6923
E-mail: mram@forthepeople.com
mappel@forthepeople.com
- and -
George E. McLaughlin, Esq.
MCLAUGHLIN LAW FIRM, P.C.
1890 Gaylord St.
Denver, IL 80206
Telephone: (720) 420-9800
E-mail: gem@mcllf.com
INTERNATIONAL BUSINESS: Knight Sues Over Unfair Pension Benefits
----------------------------------------------------------------
Joshua Knight, on behalf of himself and all others similarly
situated, Plaintiff v. International Business Machines Corporation,
the Plan Administrator Committee, and the IBM Personal Pension
Plan, Defendants, Case No. 7:22-cv-04592 (S.D.N.Y., June 2, 2022)
is a civil enforcement action brought under Sections 502(a)(2) and
502(a)(3) of the Employee Retirement Income Security Act of 1974,
concerning Defendants' alleged violations of ERISA's actuarial
equivalence, anti-forfeiture, and joint and survivor annuity
requirements with respect to an IBM Personal Pension Plan.
According to the complaint, the Plaintiff and the Class members are
vested participants in the IBM Plan, which denies them their full
ERISA-protected pension benefits. Specifically, Plaintiff and Class
members receive pension benefits in the form of a joint and
survivor annuity -- a benefit that pays an annuity both to the
participant for his life and for the life of the participant's
surviving spouse. In determining the amount of Plaintiff's and
Class members' joint and survivor annuities, however, Defendants
employed actuarial assumptions over 40 years out of date. That
means Plaintiff and Class members receive less than the "actuarial
equivalent" of their vested accrued benefit, contrary to ERISA,
alleges the suit.
As a result, these Participants and their beneficiaries receive
significantly less than the actuarial equivalent of their single
life annuity, directly contrary to ERISA's requirements, the suit
adds.
International Business Machines Corporation is world-wide
technology company that specializes in software, technological
infrastructure, and consulting. It is headquartered in Armonk, New
York and operates throughout the U.S.[BN]
The Plaintiff is represented by:
Michael B. Eisenkraft, Esq.
COHEN MILSTEIN SELLERS & TOLL PLLC
88 Pine Street 14th Floor
New York, NY 10005
Telephone: (212) 838-7797
Facsimile: (212) 838-7745
E-mail: meisenkraft@cohenmilstein.com
- and -
Michelle C. Yau, Esq.
Daniel R. Sutter, Esq.
Laura Older, Esq.
COHEN MILSTEIN SELLERS & TOLL PLLC
1100 New York Ave. NW Fifth Floor
Washington, DC 20005
Telephone: (202) 408-4600
Facsimile: (202) 408-4699
E-mail: myau@cohenmilstein.com
dsutter@cohenmilstein.com
lolder@cohenmilstein.com
- and -
Peter K. Stris, Esq.
Rachana A. Pathak, Esq.
Victor O'Connell, Esq.
John Stokes, Esq.
STRIS & MAHER LLP
777 S. Figueroa St. Suite 3850
Los Angeles, CA 90017
Telephone: (213) 995-6800
Facsimile: (213) 261-0299
- and -
Shaun P. Martin, Esq.
5998 Alcala Park Warren Hall
San Diego, CA 92110
Telephone: (619) 260-2347
Facsimile: (619) 260-7933
ISTOGROUP INC: Fails to Pay Proper Wages, Benoit Suit Alleges
-------------------------------------------------------------
JEFF BENOIT, individually and on behalf of all others similarly
situated, Plaintiff v. ISTOGROUP INC., Defendant, Case No.
8:22-cv-01321 (M.D. Fla., June 8, 2022) seeks to recover from the
Defendant unpaid wages and overtime compensation, interest,
liquidated damages, attorneys' fees, and costs under the Fair Labor
Standards Act.
Plaintiff Benoit was employed by the Defendant as driver.
ISTOGROUP INC. operates a freight transportation company operating
in Tampa, Florida, in Hillsborough County. [BN]
The Plaintiff is represented by:
Brandon J. Hill, Esq.
Amanda E. Heystek, Esq.
WENZEL FENTON CABASSA, P.A.
1110 N. Florida Avenue, Suite 300
Tampa, FL 33602
Telephone: (813) 224-0431
Facsimile: (813) 229-8712
Email: bhill@wfclaw.com
aheystek@wfclaw.com
aketelsen@wfclaw.com
JAMES LEBLANC: Filing of Class Cert. Bid Extended in Humphrey
-------------------------------------------------------------
In the class action lawsuit captioned as BRIAN HUMPHREY v. JAMES
LEBLANC, Case No. 3:20-cv-00233 (M.D. La.), the Hon. Judge Scott D.
Johnson entered an order granting the Plaintiffs' unopposed motion
for extension of time to file class certification motion.
The Scheduling Order in this case is modified as follows:
-- the deadline for Plaintiffs to file a Motion for
Conditional Class Certification of Collective Action and
for Notice to Prospective Class Members is July 1, 2022;
-- Opposition thereto is due by August 1, 2022; and
-- a Reply by Plaintiffs is due by August 16, 2022.
The suit alleges violation of the Civil Rights Act.[CC]
JIGSAW HEALTH: Slade Files ADA Suit in S.D. New York
----------------------------------------------------
A class action lawsuit has been filed against Jigsaw Health, LLC.
The case is styled as Linda Slade, individually and as the
representative of a class of similarly situated persons v. Jigsaw
Health, LLC, Case No. 1:22-cv-04738 (S.D.N.Y., June 7, 2022).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Jigsaw Health -- https://www.jigsawhealth.com/ -- has been
developing science-based dietary supplements since 2005.[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
JUUL LABS: Blaine School Sues Over Youth E-Cigarette Crisis
-----------------------------------------------------------
BLAINE SCHOOL DISTRICT, on behalf of itself and all others
similarly situated, Plaintiff v. JUUL LABS, INC. F/K/A PAX LABS,
INC.; JAMES MONSEES; ADAM BOWEN; NICHOLAS PRITZKER; HOYOUNG HUH;
RIAZ VALANI; ALTRIA GROUP, INC.; ALTRIA CLIENT SERVICES LLC; ALTRIA
GROUP DISTRIBUTION COMPANY; and PHILIP MORRIS USA, INC.,
Defendants, Case No. 3:22-cv-03370 (N.D. Cal., June 8, 2022) is a
class action against the Defendants for negligence, gross
negligence, and violations of the Public Nuisance Law and the
Racketeer Influenced and Corrupt Organizations Act.
According to the complaint, the Defendants used three tactics to
maintain market dominance in the cigarette industry: (1) product
design to maximize addiction, (2) mass deception, and (3) targeting
of youth. Defendants JUUL Labs and Adam Bowen designed an
e-cigarette device allegedly intended to create and sustain
addiction, but without the stigma associated with cigarettes and
promoted them to vulnerable young population. JUUL Labs and other
Defendants developed and implemented a marketing scheme to mislead
users into believing that JUUL products contained less nicotine
than they actually do and were healthy and safe. The Defendants
enticed newcomers to nicotine with kid-friendly flavors without
ensuring the flavoring additives were safe for inhalation. The
Defendants targeted the youth market by placing vaporized campaigns
on youth-oriented websites and media and using influencers and
affiliates to amplify their message to a teenage audience. The
Defendants have successfully caused more young people to start
using e-cigarettes, creating a youth e-cigarette epidemic and
public health crisis, says the suit.
Blaine School District is a unified school district with its
offices located at 765 H. Street in Blaine, Washington.
JUUL Labs, Inc., formerly known as Pax Labs, Inc., is an American
electronic cigarette company, with its principal place of business
in San Francisco, California.
Altria Group, Inc. is a producer of tobacco products, with its
principal place of business in Richmond, Virginia.
Philip Morris USA, Inc. is a wholly-owned subsidiary of Altria
Group, Inc., with its principal place of business in Richmond,
Virginia.
Altria Client Services LLC is a tobacco company, with its principal
place of business in Richmond, Virginia.
Altria Group Distribution Company is a tobacco company, with its
principal place of business in Richmond, Virginia. [BN]
The Plaintiff is represented by:
James Frantz, Esq.
William B. Shinoff, Esq.
FRANTZ LAW GROUP, APLC
402 W. Broadway, Ste. 860
San Diego, CA 92101
Telephone: (619) 233-5945
Facsimile: (619) 525-7672
E-mail: jpf@frantzlawgroup.com
wshinoff@frantzlawgroup.com
JUUL LABS: Causes Youth E-Cigarette Crisis, Mead School Suit Says
-----------------------------------------------------------------
MEAD SCHOOL DISTRICT, on behalf of itself and all others similarly
situated, Plaintiff v. JUUL LABS, INC. F/K/A PAX LABS, INC.; JAMES
MONSEES; ADAM BOWEN; NICHOLAS PRITZKER; HOYOUNG HUH; RIAZ VALANI;
ALTRIA GROUP, INC.; ALTRIA CLIENT SERVICES LLC; ALTRIA GROUP
DISTRIBUTION COMPANY; and PHILIP MORRIS USA, INC., Defendants, Case
No. 3:22-cv-03362 (N.D. Cal., June 8, 2022) is a class action
against the Defendants for negligence, gross negligence, and
violations of the Public Nuisance Law and the Racketeer Influenced
and Corrupt Organizations Act.
According to the complaint, the Defendants used three tactics to
maintain market dominance in the cigarette industry: (1) product
design to maximize addiction, (2) mass deception, and (3) targeting
of youth. Defendants JUUL Labs and Adam Bowen designed an
e-cigarette device allegedly intended to create and sustain
addiction, but without the stigma associated with cigarettes and
promoted them to vulnerable young population. JUUL Labs and other
Defendants developed and implemented a marketing scheme to mislead
users into believing that JUUL products contained less nicotine
than they actually do and were healthy and safe. The Defendants
enticed newcomers to nicotine with kid-friendly flavors without
ensuring the flavoring additives were safe for inhalation. The
Defendants targeted the youth market by placing vaporized campaigns
on youth-oriented websites and media and using influencers and
affiliates to amplify their message to a teenage audience. The
Defendants have successfully caused more young people to start
using e-cigarettes, creating a youth e-cigarette epidemic and
public health crisis, says the suit.
Mead School District is a unified school district with its offices
located at 2323 East Farwell Road in Mead, Washington.
JUUL Labs, Inc., formerly known as Pax Labs, Inc., is an American
electronic cigarette company, with its principal place of business
in San Francisco, California.
Altria Group, Inc. is a producer of tobacco products, with its
principal place of business in Richmond, Virginia.
Philip Morris USA, Inc. is a wholly-owned subsidiary of Altria
Group, Inc., with its principal place of business in Richmond,
Virginia.
Altria Client Services LLC is a tobacco company, with its principal
place of business in Richmond, Virginia.
Altria Group Distribution Company is a tobacco company, with its
principal place of business in Richmond, Virginia. [BN]
The Plaintiff is represented by:
James Frantz, Esq.
William B. Shinoff, Esq.
FRANTZ LAW GROUP, APLC
402 W. Broadway, Ste. 860
San Diego, CA 92101
Telephone: (619) 233-5945
Facsimile: (619) 525-7672
E-mail: jpf@frantzlawgroup.com
wshinoff@frantzlawgroup.com
JUUL LABS: E-Cigarette Ads Target Youth, East Valley Suit Says
--------------------------------------------------------------
EAST VALLEY (SPOKANE) SCHOOL DISTRICT #361 SCHOOL, on behalf of
itself and all others similarly situated, Plaintiff v. JUUL LABS,
INC. F/K/A PAX LABS, INC.; JAMES MONSEES; ADAM BOWEN; NICHOLAS
PRITZKER; HOYOUNG HUH; RIAZ VALANI; ALTRIA GROUP, INC.; ALTRIA
CLIENT SERVICES LLC; ALTRIA GROUP DISTRIBUTION COMPANY; and PHILIP
MORRIS USA, INC., Defendants, Case No. 3:22-cv-03368 (N.D. Cal.,
June 8, 2022) is a class action against the Defendants for
negligence, gross negligence, and violations of the Public Nuisance
Law and the Racketeer Influenced and Corrupt Organizations Act.
According to the complaint, the Defendants used three tactics to
maintain market dominance in the cigarette industry: (1) product
design to maximize addiction, (2) mass deception, and (3) targeting
of youth. Defendants JUUL Labs and Adam Bowen designed an
e-cigarette device allegedly intended to create and sustain
addiction, but without the stigma associated with cigarettes and
promoted them to vulnerable young population. JUUL Labs and other
Defendants developed and implemented a marketing scheme to mislead
users into believing that JUUL products contained less nicotine
than they actually do and were healthy and safe. The Defendants
enticed newcomers to nicotine with kid-friendly flavors without
ensuring the flavoring additives were safe for inhalation. The
Defendants targeted the youth market by placing vaporized campaigns
on youth-oriented websites and media and using influencers and
affiliates to amplify their message to a teenage audience. The
Defendants have successfully caused more young people to start
using e-cigarettes, creating a youth e-cigarette epidemic and
public health crisis, says the suit.
East Valley (Spokane) School District #361 School is a unified
school district with its offices located at 3830 North Sullivan
Road in Spokane Valley, Washington.
JUUL Labs, Inc., formerly known as Pax Labs, Inc., is an American
electronic cigarette company, with its principal place of business
in San Francisco, California.
Altria Group, Inc. is a producer of tobacco products, with its
principal place of business in Richmond, Virginia.
Philip Morris USA, Inc. is a wholly-owned subsidiary of Altria
Group, Inc., with its principal place of business in Richmond,
Virginia.
Altria Client Services LLC is a tobacco company, with its principal
place of business in Richmond, Virginia.
Altria Group Distribution Company is a tobacco company, with its
principal place of business in Richmond, Virginia. [BN]
The Plaintiff is represented by:
James Frantz, Esq.
William B. Shinoff, Esq.
FRANTZ LAW GROUP, APLC
402 W. Broadway, Ste. 860
San Diego, CA 92101
Telephone: (619) 233-5945
Facsimile: (619) 525-7672
E-mail: jpf@frantzlawgroup.com
wshinoff@frantzlawgroup.com
JUUL LABS: E-Cigarette Triggers Youth Health Crisis, Crandon Says
-----------------------------------------------------------------
SCHOOL DISTRICT OF CRANDON, on behalf of itself and all others
similarly situated, Plaintiff v. JUUL LABS, INC. F/K/A PAX LABS,
INC.; JAMES MONSEES; ADAM BOWEN; NICHOLAS PRITZKER; HOYOUNG HUH;
RIAZ VALANI; ALTRIA GROUP, INC.; ALTRIA CLIENT SERVICES LLC; ALTRIA
GROUP DISTRIBUTION COMPANY; and PHILIP MORRIS USA, INC.,
Defendants, Case No. 3:22-cv-03360 (N.D. Cal., June 8, 2022) is a
class action against the Defendants for negligence, gross
negligence, and violations of the Public Nuisance Law and the
Racketeer Influenced and Corrupt Organizations Act.
According to the complaint, the Defendants used three tactics to
maintain market dominance in the cigarette industry: (1) product
design to maximize addiction, (2) mass deception, and (3) targeting
of youth. Defendants JUUL Labs and Adam Bowen designed an
e-cigarette device allegedly intended to create and sustain
addiction, but without the stigma associated with cigarettes and
promoted them to vulnerable young population. JUUL Labs and other
Defendants developed and implemented a marketing scheme to mislead
users into believing that JUUL products contained less nicotine
than they actually do and were healthy and safe. The Defendants
enticed newcomers to nicotine with kid-friendly flavors without
ensuring the flavoring additives were safe for inhalation. The
Defendants targeted the youth market by placing vaporized campaigns
on youth-oriented websites and media and using influencers and
affiliates to amplify their message to a teenage audience. The
Defendants have successfully caused more young people to start
using e-cigarettes, creating a youth e-cigarette epidemic and
public health crisis, says the suit.
School District of Crandon is a unified school district with its
offices located at 9750 US-8 in Crandon, Wisconsin.
JUUL Labs, Inc., formerly known as Pax Labs, Inc., is an American
electronic cigarette company, with its principal place of business
in San Francisco, California.
Altria Group, Inc. is a producer of tobacco products, with its
principal place of business in Richmond, Virginia.
Philip Morris USA, Inc. is a wholly-owned subsidiary of Altria
Group, Inc., with its principal place of business in Richmond,
Virginia.
Altria Client Services LLC is a tobacco company, with its principal
place of business in Richmond, Virginia.
Altria Group Distribution Company is a tobacco company, with its
principal place of business in Richmond, Virginia. [BN]
The Plaintiff is represented by:
James Frantz, Esq.
William B. Shinoff, Esq.
FRANTZ LAW GROUP, APLC
402 W. Broadway, Ste. 860
San Diego, CA 92101
Telephone: (619) 233-5945
Facsimile: (619) 525-7672
E-mail: jpf@frantzlawgroup.com
wshinoff@frantzlawgroup.com
JUUL LABS: Entices Youth to Use E-Cigarettes, Hugo Public Alleges
-----------------------------------------------------------------
HUGO PUBLIC SCHOOLS, on behalf of itself and all others similarly
situated, Plaintiff v. JUUL LABS, INC. F/K/A PAX LABS, INC.; JAMES
MONSEES; ADAM BOWEN; NICHOLAS PRITZKER; HOYOUNG HUH; RIAZ VALANI;
ALTRIA GROUP, INC.; ALTRIA CLIENT SERVICES LLC; ALTRIA GROUP
DISTRIBUTION COMPANY; and PHILIP MORRIS USA, INC., Defendants, Case
No. 3:22-cv-03358 (N.D. Cal., June 8, 2022) is a class action
against the Defendants for negligence, gross negligence, and
violations of the Public Nuisance Law and the Racketeer Influenced
and Corrupt Organizations Act.
According to the complaint, the Defendants used three tactics to
maintain market dominance in the cigarette industry: (1) product
design to maximize addiction, (2) mass deception, and (3) targeting
of youth. Defendants JUUL Labs and Adam Bowen designed an
e-cigarette device allegedly intended to create and sustain
addiction, but without the stigma associated with cigarettes and
promoted them to vulnerable young population. JUUL Labs and other
Defendants developed and implemented a marketing scheme to mislead
users into believing that JUUL products contained less nicotine
than they actually do and were healthy and safe. The Defendants
enticed newcomers to nicotine with kid-friendly flavors without
ensuring the flavoring additives were safe for inhalation. The
Defendants targeted the youth market by placing vaporized campaigns
on youth-oriented websites and media and using influencers and
affiliates to amplify their message to a teenage audience. The
Defendants have successfully caused more young people to start
using e-cigarettes, creating a youth e-cigarette epidemic and
public health crisis, says the suit.
Hugo Public Schools is a unified school district with its offices
located at 208 North 2nd Street in Hugo, Oklahoma.
JUUL Labs, Inc., formerly known as Pax Labs, Inc., is an American
electronic cigarette company, with its principal place of business
in San Francisco, California.
Altria Group, Inc. is a producer of tobacco products, with its
principal place of business in Richmond, Virginia.
Philip Morris USA, Inc. is a wholly-owned subsidiary of Altria
Group, Inc., with its principal place of business in Richmond,
Virginia.
Altria Client Services LLC is a tobacco company, with its principal
place of business in Richmond, Virginia.
Altria Group Distribution Company is a tobacco company, with its
principal place of business in Richmond, Virginia. [BN]
The Plaintiff is represented by:
James Frantz, Esq.
William B. Shinoff, Esq.
FRANTZ LAW GROUP, APLC
402 W. Broadway, Ste. 860
San Diego, CA 92101
Telephone: (619) 233-5945
Facsimile: (619) 525-7672
E-mail: jpf@frantzlawgroup.com
wshinoff@frantzlawgroup.com
JUUL LABS: Faces Bethel School Suit Over Youth's E-Cigarette Ads
----------------------------------------------------------------
BETHEL SCHOOL DISTRICT, on behalf of itself and all others
similarly situated, Plaintiff v. JUUL LABS, INC. F/K/A PAX LABS,
INC.; JAMES MONSEES; ADAM BOWEN; NICHOLAS PRITZKER; HOYOUNG HUH;
RIAZ VALANI; ALTRIA GROUP, INC.; ALTRIA CLIENT SERVICES LLC; ALTRIA
GROUP DISTRIBUTION COMPANY; and PHILIP MORRIS USA, INC.,
Defendants, Case No. 3:22-cv-03361 (N.D. Cal., June 8, 2022) is a
class action against the Defendants for negligence, gross
negligence, and violations of Public Nuisance Law and the Racketeer
Influenced and Corrupt Organizations Act.
According to the complaint, the Defendants used three tactics to
maintain market dominance in the cigarette industry: (1) product
design to maximize addiction, (2) mass deception, and (3) targeting
of youth. Defendants JUUL Labs and Adam Bowen designed an
e-cigarette device allegedly intended to create and sustain
addiction, but without the stigma associated with cigarettes and
promoted them to vulnerable young population. JUUL Labs and other
Defendants developed and implemented a marketing scheme to mislead
users into believing that JUUL products contained less nicotine
than they actually do and were healthy and safe. The Defendants
enticed newcomers to nicotine with kid-friendly flavors without
ensuring the flavoring additives were safe for inhalation. The
Defendants targeted the youth market by placing vaporized campaigns
on youth-oriented websites and media and using influencers and
affiliates to amplify their message to a teenage audience. The
Defendants have successfully caused more young people to start
using e-cigarettes, creating a youth e-cigarette epidemic and
public health crisis, says the suit.
Bethel School District is a unified school district with its
offices located at 516 176th Street East in Spanaway, Washington.
JUUL Labs, Inc., formerly known as Pax Labs, Inc., is an American
electronic cigarette company, with its principal place of business
in San Francisco, California.
Altria Group, Inc. is a producer of tobacco products, with its
principal place of business in Richmond, Virginia.
Philip Morris USA, Inc. is a wholly-owned subsidiary of Altria
Group, Inc., with its principal place of business in Richmond,
Virginia.
Altria Client Services LLC is a tobacco company, with its principal
place of business in Richmond, Virginia.
Altria Group Distribution Company is a tobacco company, with its
principal place of business in Richmond, Virginia. [BN]
The Plaintiff is represented by:
James Frantz, Esq.
William B. Shinoff, Esq.
FRANTZ LAW GROUP, APLC
402 W. Broadway, Ste. 860
San Diego, CA 92101
Telephone: (619) 233-5945
Facsimile: (619) 525-7672
E-mail: jpf@frantzlawgroup.com
wshinoff@frantzlawgroup.com
JUUL LABS: Faces Manistee Suit Over Youth E-Cigarette Epidemic
--------------------------------------------------------------
MANISTEE AREA PUBLIC SCHOOLS, on behalf of itself and all others
similarly situated, Plaintiff v. JUUL LABS, INC. F/K/A PAX LABS,
INC.; JAMES MONSEES; ADAM BOWEN; NICHOLAS PRITZKER; HOYOUNG HUH;
RIAZ VALANI; ALTRIA GROUP, INC.; ALTRIA CLIENT SERVICES LLC; ALTRIA
GROUP DISTRIBUTION COMPANY; and PHILIP MORRIS USA, INC.,
Defendants, Case No. 3:22-cv-03353 (N.D. Cal., June 8, 2022) is a
class action against the Defendants for negligence, gross
negligence, and violations of the Public Nuisance Law and the
Racketeer Influenced and Corrupt Organizations Act.
According to the complaint, the Defendants used three tactics to
maintain market dominance in the cigarette industry: (1) product
design to maximize addiction, (2) mass deception, and (3) targeting
of youth. Defendants JUUL Labs and Adam Bowen designed an
e-cigarette device allegedly intended to create and sustain
addiction, but without the stigma associated with cigarettes and
promoted them to vulnerable young population. JUUL Labs and other
Defendants developed and implemented a marketing scheme to mislead
users into believing that JUUL products contained less nicotine
than they actually do and were healthy and safe. The Defendants
enticed newcomers to nicotine with kid-friendly flavors without
ensuring the flavoring additives were safe for inhalation. The
Defendants targeted the youth market by placing vaporized campaigns
on youth-oriented websites and media and using influencers and
affiliates to amplify their message to a teenage audience. The
Defendants have successfully caused more young people to start
using e-cigarettes, creating a youth e-cigarette epidemic and
public health crisis, says the suit.
Manistee Area Public Schools is a unified school district with its
offices located at 550 Maple Street in Manistee, Michigan.
JUUL Labs, Inc., formerly known as Pax Labs, Inc., is an American
electronic cigarette company, with its principal place of business
in San Francisco, California.
Altria Group, Inc. is a producer of tobacco products, with its
principal place of business in Richmond, Virginia.
Philip Morris USA, Inc. is a wholly-owned subsidiary of Altria
Group, Inc., with its principal place of business in Richmond,
Virginia.
Altria Client Services LLC is a tobacco company, with its principal
place of business in Richmond, Virginia.
Altria Group Distribution Company is a tobacco company, with its
principal place of business in Richmond, Virginia. [BN]
The Plaintiff is represented by:
James Frantz, Esq.
William B. Shinoff, Esq.
FRANTZ LAW GROUP, APLC
402 W. Broadway, Ste. 860
San Diego, CA 92101
Telephone: (619) 233-5945
Facsimile: (619) 525-7672
E-mail: jpf@frantzlawgroup.com
wshinoff@frantzlawgroup.com
JUUL LABS: Faces Oakfield-Alabama Suit Over E-Cigarette Crisis
--------------------------------------------------------------
OAKFIELD-ALABAMA CENTRAL SCHOOL DISTRICT, on behalf of itself and
all others similarly situated, Plaintiff v. JUUL LABS, INC. F/K/A
PAX LABS, INC.; JAMES MONSEES; ADAM BOWEN; NICHOLAS PRITZKER;
HOYOUNG HUH; RIAZ VALANI; ALTRIA GROUP, INC.; ALTRIA CLIENT
SERVICES LLC; ALTRIA GROUP DISTRIBUTION COMPANY; and PHILIP MORRIS
USA, INC., Defendants, Case No. 3:22-cv-03352 (N.D. Cal., June 8,
2022) is a class action against the Defendants for negligence,
gross negligence, and violations of the Public Nuisance Law and the
Racketeer Influenced and Corrupt Organizations Act.
According to the complaint, the Defendants used three tactics to
maintain market dominance in the cigarette industry: (1) product
design to maximize addiction, (2) mass deception, and (3) targeting
of youth. Defendants JUUL Labs and Adam Bowen designed an
e-cigarette device allegedly intended to create and sustain
addiction, but without the stigma associated with cigarettes and
promoted them to vulnerable young population. JUUL Labs and other
Defendants developed and implemented a marketing scheme to mislead
users into believing that JUUL products contained less nicotine
than they actually do and were healthy and safe. The Defendants
enticed newcomers to nicotine with kid-friendly flavors without
ensuring the flavoring additives were safe for inhalation. The
Defendants targeted the youth market by placing vaporized campaigns
on youth-oriented websites and media and using influencers and
affiliates to amplify their message to a teenage audience. The
Defendants have successfully caused more young people to start
using e-cigarettes, creating a youth e-cigarette epidemic and
public health crisis, says the suit.
Oakfield-Alabama Central School District is a unified school
district with its offices located at 7001 Lewiston Road in
Oakfield, New York.
JUUL Labs, Inc., formerly known as Pax Labs, Inc., is an American
electronic cigarette company, with its principal place of business
in San Francisco, California.
Altria Group, Inc. is a producer of tobacco products, with its
principal place of business in Richmond, Virginia.
Philip Morris USA, Inc. is a wholly-owned subsidiary of Altria
Group, Inc., with its principal place of business in Richmond,
Virginia.
Altria Client Services LLC is a tobacco company, with its principal
place of business in Richmond, Virginia.
Altria Group Distribution Company is a tobacco company, with its
principal place of business in Richmond, Virginia. [BN]
The Plaintiff is represented by:
James Frantz, Esq.
William B. Shinoff, Esq.
FRANTZ LAW GROUP, APLC
402 W. Broadway, Ste. 860
San Diego, CA 92101
Telephone: (619) 233-5945
Facsimile: (619) 525-7672
E-mail: jpf@frantzlawgroup.com
wshinoff@frantzlawgroup.com
JUUL LABS: Frenchtown School Sues Over Youth E-Cigarette Campaign
-----------------------------------------------------------------
FRENCHTOWN SCHOOL DISTRICT, on behalf of itself and all others
similarly situated, Plaintiff v. JUUL LABS, INC. F/K/A PAX LABS,
INC.; JAMES MONSEES; ADAM BOWEN; NICHOLAS PRITZKER; HOYOUNG HUH;
RIAZ VALANI; ALTRIA GROUP, INC.; ALTRIA CLIENT SERVICES LLC; ALTRIA
GROUP DISTRIBUTION COMPANY; and PHILIP MORRIS USA, INC.,
Defendants, Case No. 3:22-cv-03359 (N.D. Cal., June 8, 2022) is a
class action against the Defendants for negligence, gross
negligence, and violations of the Public Nuisance Law and the
Racketeer Influenced and Corrupt Organizations Act.
According to the complaint, the Defendants used three tactics to
maintain market dominance in the cigarette industry: (1) product
design to maximize addiction, (2) mass deception, and (3) targeting
of youth. Defendants JUUL Labs and Adam Bowen designed an
e-cigarette device allegedly intended to create and sustain
addiction, but without the stigma associated with cigarettes and
promoted them to vulnerable young population. JUUL Labs and other
Defendants developed and implemented a marketing scheme to mislead
users into believing that JUUL products contained less nicotine
than they actually do and were healthy and safe. The Defendants
enticed newcomers to nicotine with kid-friendly flavors without
ensuring the flavoring additives were safe for inhalation. The
Defendants targeted the youth market by placing vaporized campaigns
on youth-oriented websites and media and using influencers and
affiliates to amplify their message to a teenage audience. The
Defendants have successfully caused more young people to start
using e-cigarettes, creating a youth e-cigarette epidemic and
public health crisis, says the suit.
Frenchtown School District is a unified school district with its
offices located at 17620 Frenchtown Frontage Road in Frenchtown,
Montana.
JUUL Labs, Inc., formerly known as Pax Labs, Inc., is an American
electronic cigarette company, with its principal place of business
in San Francisco, California.
Altria Group, Inc. is a producer of tobacco products, with its
principal place of business in Richmond, Virginia.
Philip Morris USA, Inc. is a wholly-owned subsidiary of Altria
Group, Inc., with its principal place of business in Richmond,
Virginia.
Altria Client Services LLC is a tobacco company, with its principal
place of business in Richmond, Virginia.
Altria Group Distribution Company is a tobacco company, with its
principal place of business in Richmond, Virginia. [BN]
The Plaintiff is represented by:
James Frantz, Esq.
William B. Shinoff, Esq.
FRANTZ LAW GROUP, APLC
402 W. Broadway, Ste. 860
San Diego, CA 92101
Telephone: (619) 233-5945
Facsimile: (619) 525-7672
E-mail: jpf@frantzlawgroup.com
wshinoff@frantzlawgroup.com
JUUL LABS: Markets E-Cigarette to Youth, Claiborne Suit Claims
--------------------------------------------------------------
CLAIBORNE COUNTY SCHOOLS, on behalf of itself and all others
similarly situated, Plaintiff v. JUUL LABS, INC. F/K/A PAX LABS,
INC.; JAMES MONSEES; ADAM BOWEN; NICHOLAS PRITZKER; HOYOUNG HUH;
RIAZ VALANI; ALTRIA GROUP, INC.; ALTRIA CLIENT SERVICES LLC; ALTRIA
GROUP DISTRIBUTION COMPANY; and PHILIP MORRIS USA, INC.,
Defendants, Case No. 3:22-cv-03345 (N.D. Cal., June 8, 2022) is a
class action against the Defendants for negligence, gross
negligence, and violations of Public Nuisance Law and the Racketeer
Influenced and Corrupt Organizations Act.
According to the complaint, the Defendants used three tactics to
maintain market dominance in the cigarette industry: (1) product
design to maximize addiction, (2) mass deception, and (3) targeting
of youth. Defendants JUUL Labs and Adam Bowen designed an
e-cigarette device allegedly intended to create and sustain
addiction, but without the stigma associated with cigarettes and
promoted them to vulnerable young population. JUUL Labs and other
Defendants developed and implemented a marketing scheme to mislead
users into believing that JUUL products contained less nicotine
than they actually do and were healthy and safe. The Defendants
enticed newcomers to nicotine with kid-friendly flavors without
ensuring the flavoring additives were safe for inhalation. The
Defendants targeted the youth market by placing vaporized campaigns
on youth-oriented websites and media and using influencers and
affiliates to amplify their message to a teenage audience. The
Defendants have successfully caused more young people to start
using e-cigarettes, creating a youth e-cigarette epidemic and
public health crisis, says the suit.
Claiborne County Schools is a unified school district with its
offices located at 1403 Tazewell Road in Tazewell, Tennessee.
JUUL Labs, Inc., formerly known as Pax Labs, Inc., is an American
electronic cigarette company, with its principal place of business
in San Francisco, California.
Altria Group, Inc. is a producer of tobacco products, with its
principal place of business in Richmond, Virginia.
Philip Morris USA, Inc. is a wholly-owned subsidiary of Altria
Group, Inc., with its principal place of business in Richmond,
Virginia.
Altria Client Services LLC is a tobacco company, with its principal
place of business in Richmond, Virginia.
Altria Group Distribution Company is a tobacco company, with its
principal place of business in Richmond, Virginia. [BN]
The Plaintiff is represented by:
James Frantz, Esq.
William B. Shinoff, Esq.
FRANTZ LAW GROUP, APLC
402 W. Broadway, Ste. 860
San Diego, CA 92101
Telephone: (619) 233-5945
Facsimile: (619) 525-7672
E-mail: jpf@frantzlawgroup.com
wshinoff@frantzlawgroup.com
JUUL LABS: Mount Baker Sues Over E-Cigarette's Risks to Youth
-------------------------------------------------------------
MOUNT BAKER SCHOOL DISTRICT, on behalf of itself and all others
similarly situated, Plaintiff v. JUUL LABS, INC. F/K/A PAX LABS,
INC.; JAMES MONSEES; ADAM BOWEN; NICHOLAS PRITZKER; HOYOUNG HUH;
RIAZ VALANI; ALTRIA GROUP, INC.; ALTRIA CLIENT SERVICES LLC; ALTRIA
GROUP DISTRIBUTION COMPANY; and PHILIP MORRIS USA, INC.,
Defendants, Case No. 3:22-cv-03369 (N.D. Cal., June 8, 2022) is a
class action against the Defendants for negligence, gross
negligence, and violations of the Public Nuisance Law and the
Racketeer Influenced and Corrupt Organizations Act.
According to the complaint, the Defendants used three tactics to
maintain market dominance in the cigarette industry: (1) product
design to maximize addiction, (2) mass deception, and (3) targeting
of youth. Defendants JUUL Labs and Adam Bowen designed an
e-cigarette device allegedly intended to create and sustain
addiction, but without the stigma associated with cigarettes and
promoted them to vulnerable young population. JUUL Labs and other
Defendants developed and implemented a marketing scheme to mislead
users into believing that JUUL products contained less nicotine
than they actually do and were healthy and safe. The Defendants
enticed newcomers to nicotine with kid-friendly flavors without
ensuring the flavoring additives were safe for inhalation. The
Defendants targeted the youth market by placing vaporized campaigns
on youth-oriented websites and media and using influencers and
affiliates to amplify their message to a teenage audience. The
Defendants have successfully caused more young people to start
using e-cigarettes, creating a youth e-cigarette epidemic and
public health crisis, says the suit.
Mount Baker School District is a unified school district with its
offices located at 4956 Deming Road in Deming, Washington.
JUUL Labs, Inc., formerly known as Pax Labs, Inc., is an American
electronic cigarette company, with its principal place of business
in San Francisco, California.
Altria Group, Inc. is a producer of tobacco products, with its
principal place of business in Richmond, Virginia.
Philip Morris USA, Inc. is a wholly-owned subsidiary of Altria
Group, Inc., with its principal place of business in Richmond,
Virginia.
Altria Client Services LLC is a tobacco company, with its principal
place of business in Richmond, Virginia.
Altria Group Distribution Company is a tobacco company, with its
principal place of business in Richmond, Virginia. [BN]
The Plaintiff is represented by:
James Frantz, Esq.
William B. Shinoff, Esq.
FRANTZ LAW GROUP, APLC
402 W. Broadway, Ste. 860
San Diego, CA 92101
Telephone: (619) 233-5945
Facsimile: (619) 525-7672
E-mail: jpf@frantzlawgroup.com
wshinoff@frantzlawgroup.com
JUUL LABS: Oak Harbor Sues Over Youth's E-Cigarette Addiction
-------------------------------------------------------------
OAK HARBOR SCHOOL DISTRICT NO. 201, on behalf of itself and all
others similarly situated, Plaintiff v. JUUL LABS, INC. F/K/A PAX
LABS, INC.; JAMES MONSEES; ADAM BOWEN; NICHOLAS PRITZKER; HOYOUNG
HUH; RIAZ VALANI; ALTRIA GROUP, INC.; ALTRIA CLIENT SERVICES LLC;
ALTRIA GROUP DISTRIBUTION COMPANY; and PHILIP MORRIS USA, INC.,
Defendants, Case No. 3:22-cv-03354 (N.D. Cal., June 8, 2022) is a
class action against the Defendants for negligence, gross
negligence, and violations of the Public Nuisance Law and the
Racketeer Influenced and Corrupt Organizations Act.
According to the complaint, the Defendants used three tactics to
maintain market dominance in the cigarette industry: (1) product
design to maximize addiction, (2) mass deception, and (3) targeting
of youth. Defendants JUUL Labs and Adam Bowen designed an
e-cigarette device allegedly intended to create and sustain
addiction, but without the stigma associated with cigarettes and
promoted them to vulnerable young population. JUUL Labs and other
Defendants developed and implemented a marketing scheme to mislead
users into believing that JUUL products contained less nicotine
than they actually do and were healthy and safe. The Defendants
enticed newcomers to nicotine with kid-friendly flavors without
ensuring the flavoring additives were safe for inhalation. The
Defendants targeted the youth market by placing vaporized campaigns
on youth-oriented websites and media and using influencers and
affiliates to amplify their message to a teenage audience. The
Defendants have successfully caused more young people to start
using e-cigarettes, creating a youth e-cigarette epidemic and
public health crisis, says the suit.
Oak Harbor School District No. 201 is a unified school district
with its offices located at 350 South Oak Harbor Street in Oak
Harbor, Washington.
JUUL Labs, Inc., formerly known as Pax Labs, Inc., is an American
electronic cigarette company, with its principal place of business
in San Francisco, California.
Altria Group, Inc. is a producer of tobacco products, with its
principal place of business in Richmond, Virginia.
Philip Morris USA, Inc. is a wholly-owned subsidiary of Altria
Group, Inc., with its principal place of business in Richmond,
Virginia.
Altria Client Services LLC is a tobacco company, with its principal
place of business in Richmond, Virginia.
Altria Group Distribution Company is a tobacco company, with its
principal place of business in Richmond, Virginia. [BN]
The Plaintiff is represented by:
James Frantz, Esq.
William B. Shinoff, Esq.
FRANTZ LAW GROUP, APLC
402 W. Broadway, Ste. 860
San Diego, CA 92101
Telephone: (619) 233-5945
Facsimile: (619) 525-7672
E-mail: jpf@frantzlawgroup.com
wshinoff@frantzlawgroup.com
JUUL LABS: Promotes E-Cigarette Use Among Youth, Walla Suit Says
----------------------------------------------------------------
WALLA WALLA PUBLIC SCHOOLS, on behalf of itself and all others
similarly situated, Plaintiff v. JUUL LABS, INC. F/K/A PAX LABS,
INC.; JAMES MONSEES; ADAM BOWEN; NICHOLAS PRITZKER; HOYOUNG HUH;
RIAZ VALANI; ALTRIA GROUP, INC.; ALTRIA CLIENT SERVICES LLC; ALTRIA
GROUP DISTRIBUTION COMPANY; and PHILIP MORRIS USA, INC.,
Defendants, Case No. 3:22-cv-03356 (N.D. Cal., June 8, 2022) is a
class action against the Defendants for negligence, gross
negligence, and violations of the Public Nuisance Law and the
Racketeer Influenced and Corrupt Organizations Act.
According to the complaint, the Defendants used three tactics to
maintain market dominance in the cigarette industry: (1) product
design to maximize addiction, (2) mass deception, and (3) targeting
of youth. Defendants JUUL Labs and Adam Bowen designed an
e-cigarette device allegedly intended to create and sustain
addiction, but without the stigma associated with cigarettes and
promoted them to vulnerable young population. JUUL Labs and other
Defendants developed and implemented a marketing scheme to mislead
users into believing that JUUL products contained less nicotine
than they actually do and were healthy and safe. The Defendants
enticed newcomers to nicotine with kid-friendly flavors without
ensuring the flavoring additives were safe for inhalation. The
Defendants targeted the youth market by placing vaporized campaigns
on youth-oriented websites and media and using influencers and
affiliates to amplify their message to a teenage audience. The
Defendants have successfully caused more young people to start
using e-cigarettes, creating a youth e-cigarette epidemic and
public health crisis, says the suit.
Walla Walla Public Schools is a unified school district with its
offices located at 346 South Park Street in Walla Walla,
Washington.
JUUL Labs, Inc., formerly known as Pax Labs, Inc., is an American
electronic cigarette company, with its principal place of business
in San Francisco, California.
Altria Group, Inc. is a producer of tobacco products, with its
principal place of business in Richmond, Virginia.
Philip Morris USA, Inc. is a wholly-owned subsidiary of Altria
Group, Inc., with its principal place of business in Richmond,
Virginia.
Altria Client Services LLC is a tobacco company, with its principal
place of business in Richmond, Virginia.
Altria Group Distribution Company is a tobacco company, with its
principal place of business in Richmond, Virginia. [BN]
The Plaintiff is represented by:
James Frantz, Esq.
William B. Shinoff, Esq.
FRANTZ LAW GROUP, APLC
402 W. Broadway, Ste. 860
San Diego, CA 92101
Telephone: (619) 233-5945
Facsimile: (619) 525-7672
E-mail: jpf@frantzlawgroup.com
wshinoff@frantzlawgroup.com
JUUL LABS: Steubenville City Sues Over Deceptive E-Cigarette Ads
----------------------------------------------------------------
STEUBENVILLE CITY SCHOOL DISTRICT, on behalf of itself and all
others similarly situated, Plaintiff v. JUUL LABS, INC. F/K/A PAX
LABS, INC.; JAMES MONSEES; ADAM BOWEN; NICHOLAS PRITZKER; HOYOUNG
HUH; RIAZ VALANI; ALTRIA GROUP, INC.; ALTRIA CLIENT SERVICES LLC;
ALTRIA GROUP DISTRIBUTION COMPANY; and PHILIP MORRIS USA, INC.,
Defendants, Case No. 3:22-cv-03349 (N.D. Cal., June 8, 2022) is a
class action against the Defendants for negligence, gross
negligence, and violations of the Public Nuisance Law and the
Racketeer Influenced and Corrupt Organizations Act.
According to the complaint, the Defendants used three tactics to
maintain market dominance in the cigarette industry: (1) product
design to maximize addiction, (2) mass deception, and (3) targeting
of youth. Defendants JUUL Labs and Adam Bowen designed an
e-cigarette device allegedly intended to create and sustain
addiction, but without the stigma associated with cigarettes and
promoted them to vulnerable young population. JUUL Labs and other
Defendants developed and implemented a marketing scheme to mislead
users into believing that JUUL products contained less nicotine
than they actually do and were healthy and safe. The Defendants
enticed newcomers to nicotine with kid-friendly flavors without
ensuring the flavoring additives were safe for inhalation. The
Defendants targeted the youth market by placing vaporized campaigns
on youth-oriented websites and media and using influencers and
affiliates to amplify their message to a teenage audience. The
Defendants have successfully caused more young people to start
using e-cigarettes, creating a youth e-cigarette epidemic and
public health crisis, says the suit.
Steubenville City School District is a unified school district with
its offices located at 611 North 4th Street in Steubenville, Ohio.
JUUL Labs, Inc., formerly known as Pax Labs, Inc., is an American
electronic cigarette company, with its principal place of business
in San Francisco, California.
Altria Group, Inc. is a producer of tobacco products, with its
principal place of business in Richmond, Virginia.
Philip Morris USA, Inc. is a wholly-owned subsidiary of Altria
Group, Inc., with its principal place of business in Richmond,
Virginia.
Altria Client Services LLC is a tobacco company, with its principal
place of business in Richmond, Virginia.
Altria Group Distribution Company is a tobacco company, with its
principal place of business in Richmond, Virginia. [BN]
The Plaintiff is represented by:
James Frantz, Esq.
William B. Shinoff, Esq.
FRANTZ LAW GROUP, APLC
402 W. Broadway, Ste. 860
San Diego, CA 92101
Telephone: (619) 233-5945
Facsimile: (619) 525-7672
E-mail: jpf@frantzlawgroup.com
wshinoff@frantzlawgroup.com
JUUL LABS: Toutle Lake Sues Over Youth E-Cigarette Crisis in Wash.
------------------------------------------------------------------
TOUTLE LAKE SCHOOL DISTRICT, on behalf of itself and all others
similarly situated, Plaintiff v. JUUL LABS, INC. F/K/A PAX LABS,
INC.; JAMES MONSEES; ADAM BOWEN; NICHOLAS PRITZKER; HOYOUNG HUH;
RIAZ VALANI; ALTRIA GROUP, INC.; ALTRIA CLIENT SERVICES LLC; ALTRIA
GROUP DISTRIBUTION COMPANY; and PHILIP MORRIS USA, INC.,
Defendants, Case No. 3:22-cv-03355 (N.D. Cal., June 8, 2022) is a
class action against the Defendants for negligence, gross
negligence, and violations of the Public Nuisance Law and the
Racketeer Influenced and Corrupt Organizations Act.
According to the complaint, the Defendants used three tactics to
maintain market dominance in the cigarette industry: (1) product
design to maximize addiction, (2) mass deception, and (3) targeting
of youth. Defendants JUUL Labs and Adam Bowen designed an
e-cigarette device allegedly intended to create and sustain
addiction, but without the stigma associated with cigarettes and
promoted them to vulnerable young population. JUUL Labs and other
Defendants developed and implemented a marketing scheme to mislead
users into believing that JUUL products contained less nicotine
than they actually do and were healthy and safe. The Defendants
enticed newcomers to nicotine with kid-friendly flavors without
ensuring the flavoring additives were safe for inhalation. The
Defendants targeted the youth market by placing vaporized campaigns
on youth-oriented websites and media and using influencers and
affiliates to amplify their message to a teenage audience. The
Defendants have successfully caused more young people to start
using e-cigarettes, creating a youth e-cigarette epidemic and
public health crisis, says the suit.
Toutle Lake School District is a unified school district with its
offices located at 5050 Spirit Lake Highway in Toutle, Washington.
JUUL Labs, Inc., formerly known as Pax Labs, Inc., is an American
electronic cigarette company, with its principal place of business
in San Francisco, California.
Altria Group, Inc. is a producer of tobacco products, with its
principal place of business in Richmond, Virginia.
Philip Morris USA, Inc. is a wholly-owned subsidiary of Altria
Group, Inc., with its principal place of business in Richmond,
Virginia.
Altria Client Services LLC is a tobacco company, with its principal
place of business in Richmond, Virginia.
Altria Group Distribution Company is a tobacco company, with its
principal place of business in Richmond, Virginia. [BN]
The Plaintiff is represented by:
James Frantz, Esq.
William B. Shinoff, Esq.
FRANTZ LAW GROUP, APLC
402 W. Broadway, Ste. 860
San Diego, CA 92101
Telephone: (619) 233-5945
Facsimile: (619) 525-7672
E-mail: jpf@frantzlawgroup.com
wshinoff@frantzlawgroup.com
KOMATSU MINING: Bid to Dismiss Curtis' Amended Complaint Granted
----------------------------------------------------------------
In the case, TREVOR CURTIS, Plaintiff v. KOMATSU U.S. PENSION PLAN,
KOMATSU PENSION AND INVESTMENT COMMITTEE, Defendants, Case No.
20-cv-1611-bhl (E.D. Wis.), Judge Brett H. Ludwig of the U.S.
District Court for the Eastern District of Wisconsin grants the
Defendants' Motion to Dismiss the Plaintiff's Amended Complaint.
I. Background
Mr. Curtis worked for Komatsu Mining Corp. for 45 years. On the day
he retired -- July 19, 2019 -- he received a "Retirement Kit" in
the mail from the Komatsu Pension and Investment Committee. The
materials included information about a certain "Additional Benefit"
related to his pension plan. A week later, Curtis received another
Retirement Kit with the same Additional Benefit language.
After receiving these Retirement Kits, Curtis contacted the Pension
Committee and requested the Additional Benefit described in them.
Soon thereafter a Komatsu benefits supervisor told Curtis that the
Pension Committee had sent him the Additional Benefit information
inadvertently and that the benefit did not pertain to his plan.
When Curtis challenged this explanation and insisted on receiving
the Additional Benefit, the Pension Committee denied his request
and then rejected his appeal from that denial. In Curtis'
calculations, the Additional Benefit language indicates he is owed
an additional $280,347 under his pension plan.
With his administrative remedies exhausted, Curtis filed a
complaint, and an amended complaint, in the Court, claiming that
the Komatsu U.S. Pension Plan had unlawfully denied him the benefit
guaranteed in the kits he received. Curtis alternatively claims
that the Pension Committee breached its fiduciary duty to a class
of similarly situated individuals who were participants and
beneficiaries of the pension plan by telling them they were not
entitled to receive the benefit.
The Defendants have moved to dismiss.
II. Analysis
Curtis' first claim for relief, against the Pension Plan, is for
unlawful denial of benefits under ERISA Section 502(a)(1)(B), 29
U.S.C. Section 1132(a)(1)(B). He argues that the Additional Benefit
language in the Retirement Kits represents the terms of his pension
plan and that the denial of this benefit is therefore unlawful.
In response, the Defendants argue that the Additional Benefit
language was sent to Curtis errantly and did not constitute a part
of the pension plan. They point out that the Plan Document itself
"restates the Plan 'in its entirety,'" makes no mention of the
Additional Benefit, and requires a "resolution of the Company's
Board of Directors or the Plan Sponsor Committee" to be amended. A
mistakenly included paragraph in ministerial summary documents, the
Defendants insist, cannot be construed as a resolution amending the
Plan Document.
Mr. Curtis relies upon a "Descriptions of Payment Options" (DOPO)
in the Retirement Kits. He highlights that this document is neither
a summary plan description, nor an election form. In fact, the kits
contain other documents labeled as "election forms," and the DOPO
is not so labeled. He also points out that the DOPO refers to the
Additional Benefit as being "under the Plan" and contends that this
phrase distinguishes the document from summary plan descriptions
and election forms.
Judge Ludwig agrees that the DOPO is a separate document in the
Retirement Kit, distinct from other materials, including election
forms, "information-only" forms, and forms that appear to summarize
elements of Curtis' pension plan. That the DOPO is distinct from
the summary plan documents and election forms does not alter the
principle that it is the plain terms of a pension plan that govern
the benefits a retiree receives. The Plan Document does not
reference the Additional Benefit Curtis seeks. Moreover, it
provides that its terms can be amended only by formal resolution.
Because Curtis does not allege that the Retirement Kits included or
were based on resolutions that amend the plan, his
denial-of-benefits claim must be dismissed.
Mr. Curtis' second claim, against the Pension Committee, is a
class-action breach-of-duty-to-inform claim under ERISA Section
502(a)(3), 29 U.S.C. Section 1132(a)(3). He argues that the Pension
Committee misrepresented the plan's terms to Curtis by telling him
he was not owed the Additional Benefit.
Because he concludes that the Additional Benefit language does not
constitute part of Curtis' pension plan, Judge Ludwig holds that
the Pension Committee's communications to Curtis that he was not
owed the Additional Benefit were accurate and therefore not
misrepresentations in violation of the fiduciary duty to inform.
Curtis insists that Supervisor Kevin Tschudy's specific explanation
about why the pension plan did not include the Additional Benefit
could be nothing other than a lie. But even assuming that Tschudy's
explanation was flawed, his message to Curtis was undisputedly true
-- the Additional Benefit was not part of the pension plan. At
most, Curtis alleges Tschudy misstated the reason why the
Additional Benefit was not part of the plan. But he identifies no
harm resulting from this purportedly deceptive explanation. This
claim must, therefore, also be dismissed.
III. Conclusion
For the reasons, Judge Ludwig grants the Defendants' Motion to
Dismiss. He dismisses the Plaintiff's Amended Complaint. The Clerk
of Court is directed to enter judgment for the Defendants.
A full-text copy of the Court's June 8, 2022 Order is available at
https://tinyurl.com/ycyns3ct from Leagle.com.
LANGIS LLC: Slade Files ADA Suit in S.D. New York
-------------------------------------------------
A class action lawsuit has been filed against Langis LLC. The case
is styled as Linda Slade, individually and as the representative of
a class of similarly situated persons v. Langis LLC, Case No.
1:22-cv-04739 (S.D.N.Y., June 7, 2022).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Langis LLC is an e-commerce service in the Las Vegas Valley, Nevada
and is part of the Electronic Shopping and Mail-Order Houses
Industry.[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
LLOYD AUSTIN: Plaintiffs Allowed to Amend Complaint
---------------------------------------------------
In the class action lawsuit captioned as STATE DEPARTMENT EMPLOYEE
1, et al., v. LLOYD J. AUSTIN, III, et al., Case No.
8:22-cv-00364-SDM-TGW (M.D. Fla.), the Hon. Judge Steven D.
Merryday entered an order granting the unopposed motion to amend
the complaint.
Not later than June 24, 2022, the plaintiffs may amend the
complaint to add the claims of Staff Psychologist. The motion to
dismiss the second amended complaint is denied as moot. The motion
for injunctive relief, the motion to certify a class, and the
motion to proceed anonymously are denied without prejudice to the
renewal of each motion on behalf of the plaintiffs named in the
forthcoming third amended complaint.
A copy of the Court's order dated June 14, 2022 is available from
PacerMonitor.com at https://bit.ly/3Ob1hRa at no extra charge.[CC]
MAJOR LEAGUE: Casey's Sues Over Alleged Anticompetitive Scheme
--------------------------------------------------------------
Casey's Distributing, Inc., individually and on behalf of all
others similarly situated, v. THE OFFICE OF THE COMMISSIONER OF
BASEBALL, doing business as MAJOR LEAGUE BASEBALL, et al., Case No.
1:22-cv-04832 (S.D.N.Y., June 9, 2022) is a class action on behalf
of the Plaintiff and other online retailers of MLB Licensed
Products who have been denied the opportunity to sell on
third-party online marketplaces (TPOMs) due to the Defendants'
anticompetitive conduct in violation of the Sherman Act, 15 U.S.C.
section 1, 2, and 3, and seeks only injunctive and declaratory
relief against Defendants to restore competition on TPOMs to the
status quo.
The MLB Licensed Products industry operates much like other
licensed merchandise industries. Trademark owners (e.g., individual
sports teams) license their marks to licensees who make products
that are then sold to distributors, who then re-sell the products
to retailers, who in turn re-sell them directly to consumers. But
instead of competing independently, the teams that comprise the MLB
have formed a cartel to jointly organize the licensing of their
marks (as a single group) through Defendant MLBP.
Unlike real competitors in an open and competitive marketplace, the
Clubs' collusive marketing agreements disincentivize competition
between the Clubs. The MLB's operation as a business cartel is key
to understanding the collusive agreements at issue in this
complaint, the Plaintiff contends.
Plaintiff Casey's is a Nebraska corporation with its principal
address at 8921 J Street, No. 300, Omaha, Nebraska. Casey's product
line primarily focuses on licensed hardgoods, which includes
automotive accessories, banners, blankets, collectibles, displays,
full-size authentic and mini helmets, flags, home and office
products, toys, drinkware, and items for dining, the kitchen, and
tailgating. Casey's also sells licensed apparel.
Casey's purchased MLB licensed hardgoods directly from WinCraft,
which was acquired by Fanatics on or around December 2020, and
other licensees during the Class Period.
Every year, consumers spend billions of dollars on MLB Licensed
Products. Many of these transactions take place through online
channels, especially TPOMs such as Amazon.com, Inc. In fact, TPOMs,
including Amazon's TPOM, serve as a sole source of income for many
small merchants that sell MLB Licensed Products to consumers.
The Office of the Commissioner of Baseball, doing business as Major
League Baseball, is an unincorporated association composed of the
thirty Major League baseball clubs. MLB has unified operation and
common control over the Franchises. All do business as MLB.
Major League Baseball Properties, Inc. is a wholly-owned subsidiary
of Major League Baseball Enterprises, Inc., an entity in which each
of the 30 current MLB Clubs owns an equal interest.
The Defendants include MAJOR LEAGUE BASEBALL PROPERTIES, INC.;
KANSAS CITY ROYALS BASEBALL CLUB LLC d/b/a KANSAS CITY ROYALS;
MIAMI MARLINS, L.P. d/b/a MIAMI MARLINS; SAN FRANCISCO GIANTS
BASEBALL CLUB LLC d/b/a SAN FRANCISCO GIANTS; BOSTON RED SOX
BASEBALL CLUB L.P. d/b/a BOSTON RED SOX; ROGERS BLUE JAYS BASEBALL
PARTNERSHIP d/b/a TORONTO BLUE JAYS; CHICAGO WHITE SOX LTD. d/b/a
CHICAGO WHITE SOX; CLEVELAND GUARDIANS BASEBALL COMPANY LLC d/b/a
CLEVELAND GUARDIANS; HOUSTON BASEBALL PARTNERS LLC d/b/a HOUSTON
ASTROS; ANGELS BASEBALL LP d/b/a LOS ANGELES ANGELS OF ANAHEIM;
ATHLETICS INVESTMENT GROUP, LLC d/b/a OAKLAND ATHLETICS; BASEBALL
CLUB OF SEATTLE, LLP d/b/a SEATTLE MARINERS; THE CINCINNATI REDS,
LLC d/b/a CINCINNATI REDS; ST. LOUIS CARDINALS, LLC d/b/a ST. LOUIS
CARDINALS; COLORADO ROCKIES BASEBALL CLUB, LTD. d/b/a COLORADO
ROCKIES; PADRES L.P., and the SAN DIEGO PADRES BASEBALL CLUB, L.P.
d/b/a SAN DIEGO PADRES; MINNESOTA TWINS, LLC d/b/a MINNESOTA TWINS;
WASHINGTON NATIONALS BASEBALL CLUB, LLC d/b/a WASHINGTON NATIONALS;
DETROIT TIGERS, INC. d/b/a DETROIT TIGERS; and LOS ANGELES DODGERS,
LLC.[BN]
The Plaintiff is represented by:
Justin S. Nematzadeh, Esq.
NEMATZADEH PLLC
101 Avenue of the Americas, 9th Floor
New York, NY 10013
Telephone: (646) 799-6729
E-mail: jsn@nematlawyers.com
- and -
Solomon B. Cera, Esq.
Thomas C. Bright, Esq.
CERA LLP
595 Market Street, Suite 1350
San Francisco, CA 94105
Telephone: (415) 777-2230
E-mail: scera@cerallp.com
tbright@cerallp.com
- and -
William E. Hoese, Esq.
Craig W. Hillwig, Esq.
Zahra R. Dean, Esq.
KOHN SWIFT & GRAF, P.C.
1600 Market Street, Suite 2500
Philadelphia, PA 19103-7225
Telephone: (215) 238-1700
E-mail: whoese@kohnswift.com
chillwig@kohnswift.com
zdean@kohnswift.com
MANAGEMENT & TRAINING: Hinton Labor Suit Goes to C.D. California
----------------------------------------------------------------
The case styled SHIRLEY HINTON, individually and on behalf of all
others similarly situated v. MANAGEMENT & TRAINING CORPORATION and
DOES 1 to 100, inclusive, Case No. 22STCV13813, was removed from
the Superior Court in the State of California for the County of Los
Angeles to the U.S. District Court for the Central District of
California on June 8, 2022.
The Clerk of Court for the Central District of California assigned
Case No. 2:22-cv-03936 to the proceeding.
The case arises from the Defendant's alleged violations of the
California Labor Code and the California's Business and Professions
Code including failure to pay for all hours worked, failure to
provide off-duty meal breaks and failure to pay missed meal break
premiums, failure to pay all wages within a timely manner, failure
to provide complete wage statements, waiting time penalties,
failure to pay all overtime wages, failure to reimburse business
expenses, and unfair competition.
Management & Training Corporation is a contractor that manages
private prisons and United States Job Corps centers, headquartered
in Centerville, Utah. [BN]
The Defendant is represented by:
Veronica T. Hunter, Esq.
JACKSON LEWIS P.C.
717 Texas Avenue, Suite 1700
Houston, TX 77002
Telephone: (713) 650-0404
Facsimile: (713) 650-0405
E-mail: Veronica.Hunter@jacksonlewis.com
- and –
Martin P. Vigodnier, Esq.
JACKSON LEWIS P.C.
725 South Figueroa Street, Suite 2500
Los Angeles, CA 90017-5408
Telephone: (213) 689-0404
Facsimile: (213) 689-0430
E-mail: Martin.Vigodnier@jacksonlewis.com
MARATHON REFINING: Wood Bid for Class Certification Granted in Part
-------------------------------------------------------------------
In the class action lawsuit captioned as JANICE WOOD ET. AL., v.
MARATHON REFINING LOGISTICS SERVICE LLC, Case No. 4:19-cv-04287-YGR
(N.D. Cal.), the Hon. Judge Yvonne Gonzalez Rogers entered an order
granting in part, denying in part, and deferring in part motion for
class certification.
Finding the requirements of Rule 23 met, the plaintiffs' motion to
certify the Operators Class is granted. The Plaintiffs' requests to
appoint former operators Warren Kostenuk and Anthony Alfaro as
class representatives is also granted. The Court also grants
plaintiffs' motion to appoint Weinberg, Roger & Rosenfeld as Class
Counsel. The Court Defers on the certification of the Operator
Subclass, the modified Maintenance Worker Class and Subclass, and
the appointment of former maintenance worker Aaron Dietrich as a
class representative. Certification of these classes will be
granted if numerosity is met, the Court says.
Appointment of Dietrich will be granted upon certification of the
Maintenance Worker Class and a showing that Dietrich is a member of
the class as redefined, i.e. that he was not a chemical plant
maintenance worker. The Court orders the parties to meet and confer
on this issue and to submit a joint stipulation to this Court
within 21 days of the issuance of this Order either stipulating to
certification of these classes or detailing the reasons the parties
cannot do so. The Court reminds the parties that there is a
Judicial Emergency and that the Court's limited resources should
not be used on unnecessary motion practice, the Court adds.
A copy of the Court's order dated June 14, 2022 is available from
PacerMonitor.com at https://bit.ly/3N1yvSo at no extra charge.[CC]
MARKETSOURCE INC: Brum Suit Seeks Certify Class & Subclasses
------------------------------------------------------------
In the class action lawsuit captioned as JENNIFER BRUM and MICHAEL
CAMERO, individually, and on behalf of other members of the general
public similarly situated, v. MARKETSOURCE, INC. WHICH WILL DO
BUSINESS IN CALIFORNIA AS MARYLAND MARKETSOURCE, INC., a
corporation; ALLEGIS GROUP, INC., a Maryland corporation; and DOES
1 through 10, inclusive, Case No. 2:17-cv-00241-KJM-JDP (E.D.
Cal.), the Plaintiffs ask the Court to enter an order:
1. Certifying the following Class and Subclasses:
-- Class
"All individuals employed by Defendants in California
as non-exempt, hourly paid employees who worked for
Marketsource in a retail capacity at any time from
January 3, 2013, through the date of class
certification;"
-- Regular Rate Subclass
"All Class Members employed from January 3, 2013, to
April 1, 2015, who earned a non-discretionary bonus
and/or incentive payment during the same week they
earned overtime wages.
-- Off the Clock Subclass
"All Class Members required to attend off the clock
meetings and/or conference calls from January 3, 2013,
to the date of certification.
-- Rest Break and Rest Break Premium Subclass
"All Class Members who worked at least one shift of
three and one-half hours or more during the Class
Period;"
-- Meal Break Subclass
"All Class Members who worked at least one shift of
more than five hours during the Class Period;"
-- Business Expense Subclass
"All Class Members, excluding Field Service
Representatives, employed by Defendants from January 3,
2014, though the date of class certification;"
-- Final Pay Subclass
"All Class Members who ended their employment with the
Defendants at any time from January 3, 2014, through
the date of class certification;" and
-- Wage Statement Subclass
"All Class Members who received at least one wage
statement from January 3, 2016, though the date of
class certification."
2. Appointing the Plaintiff Jennifer Brum and Michael Camero
as representatives for the proposed Class and Subclasses;
and
3. Appointing Capstone Law APC and Lebe Law as Class Counsel
for the proposed Class and Subclasses.
MarketSource designs and delivers marketing and sales-team
solutions for companies of all sizes.
A copy of the Plaintiffs' motion dated June 14, 2022 is available
from PacerMonitor.com at https://bit.ly/3O1qnmc at no extra
charge.[CC]
The Plaintiffs are represented by:
Melissa Grant, Esq.
Brandon Brouillette, Esq.
Mark Ozzello, Esq.
John E. Stobart, Esq.
Capstone Law APC
1875 Century Park East, Suite 1000
Los Angeles, CA 90067
Telephone: (310) 556-4811
Facsimile: (310) 943-0396
E-mail: Melissa.Grant@capstonelawyers.com
Brandon.Brouillette@capstonelawyers.com
Mark.Ozzello@capstonelawyers.com
John.Stobart@capstonelawyers.com
- and -
Jonathan M. Lebe, Esq.
LEBE LAW
777 S. Alameda Street, Floor 2
Los Angeles, CA 90021-1657
Telephone: (213) 358-7046
E-mail: Jon@lebelaw.com
- and -
Rodney Mesriani, Esq.
MESRIANI LAW GROUP
A Professional Law Corporation
5723 Melrose Avenue
Los Angeles, CA 90038
Telephone: (310) 826-6300
Facsimile: (310) 820-1258
E-mail: Rodney@mesriani.com
MERCEDES-BENZ USA: Agrees With Maadanian on Pleading and Due Dates
------------------------------------------------------------------
In the case, SEYYED JAVAD MAADANIAN, individually and on behalf of
all others similarly situated, Plaintiff v. MERCEDES-BENZ USA, LLC,
a Delaware limited liability company; and DOES 1 through 10,
inclusive, Defendants, Case No. 2:22-cv-00665-RSL (W.D. Wash.),
Judge Robert S. Lasnik of the U.S. District Court for the Western
District of Washington, Tacoma, approved the parties' stipulation
and order regarding amended pleading and related dates.
The Plaintiff intends to file an Amended Class Action Complaint,
which will supersede the original class action complaint. As such,
the and Defendant Mercedes-Benz USA, LLC ("MBUSA"), through their
respective attorneys, stipulate that (1) MBUSA need not respond to
the original class action complaint; (2) the Plaintiff will file
the Amended Class Action Complaint no later than June 27, 2022; (3)
MBUSA's answer or other responsive pleading to the Amended Class
Action Complaint will be due 30 days following the filing of the
Amended Class Action Complaint; (4) if MBUSA chooses to file a
motion to dismiss under Rule 12, then the Plaintiff's opposition
will be due 30 days following the filing of the motion; and (5)
MBUSA's Reply will be due 14 days following the filing of the
opposition.
Judge Lasnik finds good cause exists for the proposed dates set
forth as the Plaintiffs will be filing an Amended Class Action
Complaint and because the counsel for MBUSA has only recently been
retained and requires time to become knowledgeable about the case.
The Plaintiff's counsel has consented to the filing of this
document.
Based on the foregoing stipulation of the parties, and good cause
having been found to exist, Judge Lasnik so ordered.
A full-text copy of the Court's June 8, 2022 Order is available at
https://tinyurl.com/5n6bxxmw from Leagle.com.
EMERY REDDY, PLLC, Timothy W. Emery -- Tim@emeryreddy.com -- WSBA
No. 34078 Patrick B. Reddy -- Patrick@emeryreddy.com -- WSBA No.
42092, in Seattle, Washington, Attorneys for Plaintiff Seyyed Javad
Maandanian.
DLA PIPER LLP (US) Anthony Todaro -- anthony.todaro@dlapiper.com --
WSBA No. 30391, in Seattle, Washington, Attorney for Defendant
Mercedes-Benz USA, LLC.
META PLATFORMS: District Court Consolidates Sloan and Gervat Suits
------------------------------------------------------------------
Judge Jon S. Tigar of the U.S. District Court for the Northern
District of California consolidates the cases, MARK SLOAN,
Plaintiff v. MARK ZUCKERBERG, et al., Defendants. HUGHES GERVAT,
Plaintiff v. MARK ZUCKERBERG, et al., Defendants, Case Nos.
22-cv-00903-JST, 22-cv-01206-JST (N.D. Cal.).
Judge Tigar has reviewed the parties' and Proposed Intervenors'
joint response to the order to show cause as to why these cases
should not be consolidated and stayed. The Plaintiffs, the
Defendants, and the Proposed Intervenors all agree that these cases
should be consolidated. They also all agree that the action should
be stayed at least until after the Court has resolved any
challenges to the complaint in the related securities class action,
Ohio Public Employees Retirement System v. Meta Platforms, Inc.,
Case No. 21-cv-08812-JST.
The only dispute is whether the Court should grant the Plaintiffs'
request, on which the Defendants take no position but which the
Proposed Intervenors oppose, to appoint co-lead counsel for the
Plaintiffs now.
Judge Tigar declines to do so. He finds that the Plaintiffs have
identified no reason to appoint lead counsel while the case is
stayed. Nor is he persuaded, as the Plaintiffs argue, that the
Proposed Intervenors have waived any objections to the Plaintiffs'
appointment request. The Plaintiffs filed their request on March 7,
2022. The Proposed Intervenors filed their motion to intervene and
stay on March 8, 2022 -- the following day. Although the Proposed
Intervenors' motion did not specifically ask the Court to defer
ruling on the Plaintiffs' appointment request, that was implicit in
their motion to stay.
With good cause appearing, Judge Tigar consolidates these cases for
all purposes under Rule 42(a) of the Federal Rules of Civil
Procedure. The consolidated action will be maintained under Case
No. 4:22-cv-00903 and captioned as "In re Meta Platforms, Inc.,
Derivative Litigation." The Clerk will close Case No.
4:22-cv-01206.
The consolidated action is stayed until the Court has resolved any
challenges to the complaint in the related securities class action,
Case No. 21-cv-08812, or the defendants in that case indicate that
they will not challenge the pleadings. This is without prejudice to
the parties' seeking to extend the stay, either by motion or
stipulation.
Any subsequently filed, removed, or transferred shareholder
derivative action that alleges the same or substantially similar
claims as the consolidated action will be consolidated for all
purposes. Any party objecting to such consolidation must file a
motion requesting relief from the Order within 14 days after the
action is consolidated.
Judge Tigar denies as moot the Proposed Intervenors' motions to
intervene and stay. If they continue to seek intervention after the
stay has been lifted, they will meet and confer with the parties to
attempt to reach agreement. If they cannot reach agreement, they
may file a new motion to intervene.
The parties' stipulation regarding the deadline to respond to the
complaint and appointing co-lead counsel for the Plaintiffs is
denied without prejudice. The parties may renew these requests once
the stay has been lifted.
A full-text copy of the Court's June 8, 2022 Order is available at
https://tinyurl.com/2fevxu4d from Leagle.com.
MEWBOURNE OIL: Hay Creek Seeks Final Approval of Settlement
-----------------------------------------------------------
In the class action lawsuit captioned as Hay Creek Royalties, LLC,
on behalf of itself and all others similarly situated, v.
Mewbourne Oil Company, Case No. e 5:20-cv-01199-F (W.D. Okla.), the
Class Representative Hay Creek ask the Court to enter an order for
final approval of the:
1. Proposed class action Settlement;
2. Notice of Settlement and Plan of Notice; and
3. Proposed Initial Plan of Allocation.
The Court should grant final approval of the Settlement. The
procedure for reviewing a proposed class action settlement is a
well-established two-step process. First, the Court conducts a
preliminary analysis to determine if the settlement should be
preliminarily approved such that the class should be notified of
the pendency of a pro-posed settlement, Hay Creek contends.
The Court preliminarily certified the following Settlement Class:
"All non-excluded persons or entities who: (1) received late
payments under the PRSA from Defendant (or Defendant's
designee) for oil-and-gas proceeds from Oklahoma wells during
the Claim Period; or (2) whose proceeds were remitted to
unclaimed property divisions of any government entity by
Defendant during the Claim Period; and (3) whose payments or
whose unclaimed property did not include the statutory
interest required by the PRSA."
Excluded from the Class are: (1) Defendant, its affiliates,
predecessors, and employees, officers, and directors; and (2)
agencies, departments, or instrumentalities of the United
States of America or the State of Oklahoma.
Mewbourne Oil is a privately owned oil and gas producers in
America.
A copy of the Plaintiffs' motion dated June 13, 2022 is available
from PacerMonitor.com at https://bit.ly/3aXjDaj at no extra
charge.[CC]
The Plaintiff is represented by:
Reagan E. Bradford, Esq.
Ryan K. Wilson, Esq.
BRADFORD & WILSON PLLC
431 W. Main Street, Suite D
Oklahoma City, OK 73102
Telephone: (405) 698-2770
E-mail: reagan@bradwil.com
ryan@bradwil.com
- and -
David R. Gleason, Esq.
Charles V. Knutter, Esq.
MORICOLI KELLOGG & GLEASON, P.C.
211 N. Robinson
One Leadership Square, St. 1350
Oklahoma City, OK 73102
Telephone: (405) 235–3357
E-mail: dgleason@moricoli.com
cknutter@moricoli.com
MGM RESORTS: Lucas, et al., File Bid for Class Certification
------------------------------------------------------------
In the class action lawsuit captioned as EBONI D. LUCAS, JEREMY
GOARD, CHRISTOPHER MANLONGAT and SHAWNDREA STAFFORD, individually
and on behalf of all others similarly situated, v. MGM RESORTS
INTERNATIONAL, THE INTERNAL COMPENSATION COMMITTEE OF MGM RESORTS
INTERNATIONAL, THE ADMINSTRATIVE COMMITTEE OF MGM RESORTS
INTERNATIONAL, and JOHN DOES 1-30, Case No. 2:20-cv-01750-JAD-NJK
(D. Nev.), the Plaintiffs ask the Court to enter an order
certifying the following proposed Class:
"All persons, except Defendants and their immediate family
members, who were participants in or beneficiaries of the
Plan, at any time between September 22, 2014 through the date
of judgment."
In the Amended Complaint, the Plaintiffs assert the following
claims: (1) Count I against the Defendants for their failure to
prudently manage the Plan’s assets because during the Class
Period, "[t]hey did not make decisions regarding the Plan's
investment lineup based solely on the merits of each investment and
what was in the best interest of Plan participants" and "[i]nstead,
the Prudence Defendants selected and retained investment options in
the Plan despite the high cost 8 of the funds in relation to other
comparable investments."
The Complaint alleges breaches of fiduciary duties under ERISA.
Therefore, the only remedy available to participants in the Plan is
Plan-wide relief, including the restoration of losses. Thus, the
proposed Class meets the requirements of FED. R. CIV. P. 23(b)(1),
given the nature of this action and the relief sought on behalf of
the Class.
MGM is the 401(k) Savings Plan sponsor and a named fiduciary of the
Plan.
A copy of the Plaintiffs' motion to certify class dated June 13,
2022 is available from PacerMonitor.com at https://bit.ly/3xrbfr4
at no extra charge.[CC]
The Plaintiffs are represented by:
Donald R. Reavey, Esq.
Mark K. Gyandoh, Esq.
Gabrielle Kelerchian, Esq.
CAPOZZI ADLER, P.C.
2933 North Front Street
Harrisburg, PA 17110
Telephone: (717) 233-4101
Facsimile: (717) 233-4003
E-mail: donr@capozziadler.com
markg@capozziadler.com
gabriellek@capozziadler.com
MIDNIGHT EXPRESS: Petrea Sues Over Unpaid OT Wages, Retaliation
---------------------------------------------------------------
KRISTIE PETREA, individually and on behalf of all others similarly
situated, Plaintiffs v. MIDNIGHT EXPRESS AUTO RECOVERY, INC.,
STACEY WILLETTE, and TONY WILLETTE, Case No. 3:22-cv-00415 (E.D.
Va., June 2, 2022) asserts a claim for unpaid overtime compensation
pursuant to the Fair Labor Standards Act of 1938 and the Virginia
Overtime Wage Act, arising from work that Plaintiff, and others
similarly situated, performed as employees of Defendants; and a
claim that MEAR misclassified its employees as independent
contractors in violation of the Virginia Misclassification Law.
The Plaintiff worked for MEAR as a member of its office staff in a
position called "Case Worker" from approximately March 2010 to June
2018 and July 2019 through April 15, 2022.
The Plaintiff also individually asserts a claim that MEAR
terminated her for reporting to a supervisor that MEAR was
violating the law by misclassifying her as an independent
contractor when she was really an employee, and/or for refusing to
sign a document incorrectly calling her an independent contractor
when she was really an employee under the law, in violation of the
Virginia Whistleblower Protection Law, the FLSA's anti-retaliation
provision, and the Virginia public policy underlying numerous
statutes.
Midnight Express Auto Recovery, Inc. is a repossession company. It
specializes in repossessing vehicles and equipment for its
clients.[BN]
The Plaintiff is represented by:
Timothy Coffield, Esq.
COFFIELD PLC
106-F Melbourne Park Circle
Charlottesville, VA 22901
Telephone: (434) 218-3133
Facsimile: (434) 321-1636
E-mail: tc@coffieldlaw.com
NATIONWIDE MOTOR: Coady, et al., Seek to Certify FLSA Collective
----------------------------------------------------------------
In the class action lawsuit captioned as MICHAEL COADY, et al., v.
NATIONWIDE MOTOR SALES CORP., et al., Case No. 1: 20-cv-1142 SAG
(D. Md.), the Plaintiffs ask the Court to enter an order, pursuant
to section 16(b) of the Fair Labor Standards Act ("FLSA"), 29
U.S.C. section 216(b) for conditional certification of the
following collective:
"All individuals who were previously employed and compensated
in part or entirely on a commissioned basis by Defendants
from May 4, 2017 to the present."
Nationwide Motor Sales Corp. operates as a car dealer. The Company
offers retail sale of new and used automobiles, as well as provides
financing services.
A copy of the Plaintiff's motion to certify class dated June 16,
2022 is available from PacerMonitor.com at https://bit.ly/3HzhKwo
at no extra charge.[CC]
The Plaintiffs are represented by:
Brian J. Markovitz, Esq.
Michal Shinnar, Esq.
JOSEPH GREENWALD & LAAKE, P.A.
6404 Ivy Lane, Suite 400
Greenbelt, MD 20770
Telephone: (301) 220-2200
Facsimile: (301) 220-1214
E-mail: bmarkovitz@jgllaw.com
mshinnar@jgllaw.com
- and -
Jonathan Rudnick, Esq.
THE LAW OFFICE OF JONATHAN RUDNICK LLC
788 Shrewsbury Avenue, Suite 204
Tinton Falls, NJ 07724
Telephone: (732) 842-2070
Facsimile: (732) 879-0213
E-mail: jonr@jonrudlaw.com
NATIONWIDE MUTUAL: Amended Scheduling Order Entered in Smith
-------------------------------------------------------------
In the class action lawsuit captioned as BRENDAN SMITH,
INDIVIDUALLY AND ON BEHALF OF A CLASS OF SIMILARLY SITUATED
PERSONS, v. NATIONWIDE MUTUAL INSURANCE COMPANY, Case No.
2:19-cv-01217-MMB (E.D. Pa.), the Hon. Judge Michael M. Baylson
entered an order amending scheduling order as follows:
1. All class discovery and discovery July 1, 2022
regarding the damage claims of
plaintiff, Brendan Smith, to be
completed by:
2. Expert reports regarding the July 15, 2022
damages claims of plaintiff,
Brendan Smith, if necessary, to
be exchanged by:
3. Plaintiff's Motion for Class August 1, 2022
Certification to be filed by:
Nationwide Mutual Insurance Company and affiliated companies,
commonly shortened to Nationwide, is a group of large U.S.
insurance and financial services companies based in Columbus, OH.
A copy of the Court's order dated June 13, 2022 is available from
PacerMonitor.com at https://bit.ly/3b1zx3p at no extra charge.[CC]
NEW YORK, NY: Leslie Bid for Class Status Nixed w/o Prejudice
-------------------------------------------------------------
In the class action lawsuit captioned as SHAKIRA LESLIE and SHAMILL
BURGOS, on behalf of themselves and all others similarly situated,
v. CITY OF NEW YORK; KENNETH COREY, Chief of Department for the New
York City Police Department, in his official capacity; KEECHANT
SEWELL, Police Commissioner for the City of New York, in her
official capacity; JAMES ESSIG, Chief of Detectives for the New
York City Police Department, in his official capacity; EMANUEL
KATRANAKIS, Deputy Chief in the Forensic Investigations Division of
the New York City Police Department, in his official capacity; and
DR. JASON GRAHAM, Acting Chief Medical Examiner for the City of New
York, in his official capacity, Case No. 1:22-cv-02305-NRB
(S.D.N.Y.), the Hon. Judge Naomi Reice Buchwald entered an order
that the motion for class certification is denied without prejudice
to its renewal (on the original papers if plaintiffs so choose)
following the resolution of the proposed motion to dismiss.
New York City comprises 5 boroughs sitting where the Hudson River
meets the Atlantic Ocean. At its core is Manhattan, a densely
populated borough that is among the world's major commercial,
financial and cultural centers.
A copy of the Court's order dated June 13, 2022 is available from
PacerMonitor.com at https://bit.ly/3xOZThU at no extra charge.[CC]
NEW YORK: Cardew, et al., Seek to Stay Class Cert. Bid Deadline
---------------------------------------------------------------
In the class action lawsuit captioned as Cardew et al v. New York
State Department of Corrections and Community Supervision et al.,
Case No. 6:21-cv-06557-CJS-MJP (W.D.N.Y.), the Plaintiffs ask the
Court to enter an order staying deadline for Plaintiffs' motion for
class certification (currently set for June 28, 2022) pending the
resolution of Plaintiffs' Motion to Compel.
This is the second request for an adjournment of the class
certification motion deadline. The Plaintiffs believe that staying
the class certification deadline is warranted, given that
Plaintiffs recently filed a Motion to Compel discovery relevant to
class certification.
New York is a state in the northeastern U.S., known for New York
City and towering Niagara Falls. NYC’s island of Manhattan is
home to the Empire State Building, Times Square and Central Park.
A copy of the Plaintiffs' motion dated June 13, 2022 is available
from PacerMonitor.com at https://bit.ly/3xNtwjC at no extra
charge.[CC]
The Plaintiffs are represented by:
Hallie Mitnick, Esq.
Megan Welch, Esq.
Andrew Stecker, Esq.
PRISONERS' LEGAL SERVICES OF NY
114 Prospect Street
Ithaca, NY 14850
Telephone: (607) 273-2283
E-mail: hmitnick@plsny.org
mwelch@plsny.org
astecker@plsny.org
- and -
Torie Atkinson, Esq.
Chloe Holzman, Esq.
DISABILITY RIGHTS ADVOCATES
655 Third Ave, 14th Floor
New York, NY 10017
Telephone: (212) 644-8644
E-mail: tatkinson@dralegal.org
cholzman@dralegal.org
NORTH STAR INSURANCE: Abramson Files TCPA Suit in W.D. Pennsylvania
-------------------------------------------------------------------
A class action lawsuit has been filed against North Star Insurance
Advisors, LLC. The case is styled as Stewart Abramson, individually
and on behalf of a class of all persons and entities similarly
situated v. North Star Insurance Advisors, LLC, Case No.
2:22-cv-00827-AJS (W.D. Pa., June 7, 2022).
The lawsuit is brought over alleged violation of the Telephone
Consumer Protection Act for Restrictions of Use of Telephone
Equipment.
North Star Insurance Advisors -- https://northstaria.com/ -- is a
life insurance agency in Wentzville, Missouri.[BN]
The Plaintiff is represented by:
Jeremy C. Jackson, Esq.
P.O. Box 244
Bellefonte, PA 16823
Phone: (814) 777-5080
Email: jjackson@bower-law.com
OAK PARK PLACE: Scheduling Order Entered in Ricker Class Action
----------------------------------------------------------------
In the class action lawsuit captioned as NAUSIA RICKER, v. OAK PARK
PLACE OF OAK CREEK LLC, and OAK PARK PLACE AL 1 HOLDING LLC, Case
No. 22-cv-383-pp (E.D. Wisc.), the Hon. Judge Pamela Pepper entered
a scheduling order as follows:
-- The parties shall exchange their July 20, 2022
Rule 26(a)(1) disclosures by the
end of the day on:
-- Parties wishing to amend pleadings July 20, 2022
or join parties without leave of
the court shall do so no later
than the end of the day on:
-- The plaintiff shall file a motion October 12, 2022
for conditional certification under
Fair Labor Standards Act (FLSA) no
later than the end of the day on:
-- Motions for final certification, April 26, 2023
class certification, and
decertification shall be filed no
later than the end of the day on:
-- The parties shall complete all August 23, 2023
discovery no later than the end
of the day on:
-- A party wishing to file dispositive September 20, 2023
motions must do so by the end of
the day on:
-- The parties shall file a joint September 20, 2023
status report by:
Oak Park Place is a Senior Living Community that provides both
Assisted Living and Memory Care services.
A copy of the Court's order dated June 14, 2022 is available from
PacerMonitor.com at https://bit.ly/3NWKYrw at no extra charge.[CC]
PAYSAFE PAYMENT: Order Adopting Schedule Entered in Bitmouni Suit
-----------------------------------------------------------------
In the class action lawsuit captioned as KAMAL BITMOUNI v. PAYSAFE
PAYMENT PROCESSING SOLUTIONS LLC, Case No. 3:21-cv-00641-JCS (N.D.
Cal.), the Hon. Judge Joseph C. Spero entered an order, except as
modified, adopting the discovery schedule listed in the joint case
management conference statement as follows:
1. The further case management conference set for June 17,
2022 at 2:00 PM by Zoom Webinar is continued to August 5,
2022 at 2:00 PM by Zoom Webinar.
2. Updated case management statement due July 29, 2022.
3. The non-expert discovery deadline of July 28, 2022 is
extended to October 28, 2022.
4. The expert disclosure deadline of July 28, 2022, is
extended to October 28, 2022.
5. The expert rebuttal deadline of August 12, 2022 is
extended to November 10, 2022.
6. The expert discovery deadline of September 16, 2022 is
extended to December 16, 2022.
7. The Motion for Class Certification shall be filed on
January 6, 2023. The response/opposition to the Motion
shall be filed by January 20, 2023. Any reply brief to the
Motion shall be filed by January 27, 2023. The Motion will
be heard on February 24, 2023 at 27 9:30 AM by Zoom
Webinar.
8. The deadline to file dispositive motions and Daubert shall
be 30 days after the Court's ruling on class
certification.
Paysafe is a leading global provider of specialized payment
solutions.
A copy of the Court's order dated June 14, 2022 is available from
PacerMonitor.com at https://bit.ly/3NTuNLO at no extra charge.[CC]
PEPSICO INC: Irving Labor Suit Moved From E.D. Mo. to S.D.N.Y.
--------------------------------------------------------------
The case styled ROBNEY IRVING-MILLENTREE, individually and on
behalf of all others similarly situated v. PEPSICO, INC., Case No.
4:22-cv-00440, was transferred from the U.S. District Court for the
Eastern District of Missouri to the U.S. District Court for the
Southern District of New York on June 8, 2022.
The Clerk of Court for the Southern District of New York assigned
Case No. 1:22-cv-04784-RA to the proceeding.
The case arises from the Defendant's alleged breach of contract,
unjust enrichment, and failure to pay wages, including proper
overtime, for all hours worked in violation of Missouri's Minimum
Wage and Maximum Hour Law and Missouri common law.
The Plaintiff has worked for PepsiCo as a non-exempt worker since
February 2007.
PepsiCo, Inc. is a food, snack, and beverage corporation, with its
headquarters and principal place of business in New York. [BN]
The Plaintiff is represented by:
Matthew S. Parmet, Esq.
PARMET PC
3 Riverway, Ste. 1910
Houston, TX 77056
Telephone: (713) 999-5228
E-mail: matt@parmet.law
PORTOLA PHARMACEUTICALS: Hearing on Class Certification Vacated
---------------------------------------------------------------
In the class action lawsuit captioned as PAUL HAYDEN, et al., v.
PORTOLA PHARMACEUTICALS INC., et al., Case No. 3:20-cv-00367-VC
(N.D. Cal.), the Hon. Judge Vince Chhabria entered an order
vacating hearing on class certification and further deadlines due
to settlement as follows:
-- The discovery hearing currently scheduled for Tuesday, June
14, 2022, before Magistrate Judge Robert M. Illman is
vacated;
-- The hearing on Lead Plaintiffs' motion for class
certification currently scheduled for Thursday, July 7,
2022, is vacated;
-- All further deadlines set forth in the Court's scheduling
order dated February 22, 2022, are suspended; and
-- A motion for preliminary approval of the parties'
settlement shall be filed not later than August 8, 2022.
On March 16, 2022, the parties to the above-captioned matter filed
a Joint Case Management Statement, in which they stated that "the
Parties have now engaged in substantive discovery and are in the
process of briefing Lead Plaintiff's Motion for Class
Certification" and "now believe that it is appropriate to consider
scheduling initial mediation discussion and are meeting and
conferring accordingly."
On February 17, 2022, Lead Plaintiff filed its motion for class
certification. On April 25, 2022, the Defendants filed their
opposition to the motion for class certification. On June 2, 2022,
Lead Plaintiff filed its reply brief in support of class
certification; and a hearing is scheduled on the pending motion for
class certification before this Court on Thursday, July 7, at 9:30
a.m.
On May 24, 2022, Lead Plaintiffs and Defendants engaged in private
mediation conducted at JAMS by neutral Robert A. Meyer, Esq.
Portola is an American clinical stage biotechnology company that
researches, develops, and commercializes drugs.
A copy of the Court's order dated June 14, 2022 is available from
PacerMonitor.com at https://bit.ly/39phh3x at no extra charge.[CC]
The Attorneys for Lead Plaintiff Alameda County Employees'
Retirement Association and Lead Counsel for the Class, are:
Nicole Lavallee, Esq.
Daniel E. Barenbaum, Esq.
Jeffrey V. Rocha, Esq.
BERMAN TABACCO
425 California Street, Suite 2300
San Francisco, CA 94104
Telephone: (415) 433-3200
Facsimile: (415) 433-6382
E-mail: nlavallee@bermantabacco.com
dbarenbaum@bermantabacco.com
jrocha@bermantabacco.com
The Attorneys for Portola Pharmaceuticals, Inc., Director and
Officer Defendants, are:
Daniel J. Kramer, Esq.
Audra J. Soloway, Esq.
Joshua Hill, Esq.
Shane D. Avidan, Esq.
PAUL, WEISS, RIFKIND, WHARTON
& GARRISON LLP
- and -
Mark R. Conrad, Esq.
CONRAD | METLITZKY | KANE LLP
The Attorneys for Underwriter Defendants, are:
James J. Beha II, Esq.
Anna Erickson White, Esq.
David J. Wiener, Esq.
MORRISON FOERSTER LLP
RAPID FINANCIAL: Updated Scheduling Order in Watkins Suit Approved
------------------------------------------------------------------
In the case, CHRISTOPHER WATKINS on behalf of himself and all
others similarly situated, Plaintiff v. RAPID FINANCIAL SOLUTIONS,
INC. d/b/a ACCESS FREEDOM CARDS; AXIOM BANK N.A.; KEEFE COMMISSARY
NETWORK, LLC, d/b/a ACCESS SECURE RELEASE; and DOES 1-50,
Defendants, Case No. 3:20-cv-00509-MMD-CSD (D. Nev.), Magistrate
Judge Craig S. Denney of the U.S. District Court for the District
of Nevada approves the Parties' Updated Joint Stipulated Discovery
Plan and Scheduling Order.
I. Introduction
The Parties met and conferred pursuant to Federal Rule of Civil
Procedure ("FRCP") 26(f) and Local Rule ("LR") 26-1 on June 7,
2022. Because the Plaintiff added an additional Defendant, Keefe
Commissary, since the previous discovery plan and scheduling order
was entered by the Court, and because the case was filed as a class
action, the Parties request additional time for discovery purposes
and a special scheduling review is requested pursuant to LR
26-1(a). The Parties submit their Updated Joint Stipulated
Discovery Plan and Scheduling Order ("DPSO").
II. Background
The case was originally filed in the First Judicial District Court
of the State of Nevada In and For Carson City, on July 31, 2020,
bearing Case Number 20 TRT 00089 1B against Defendants Rapid
Financial and Axiom Bank. The Plaintiff's complaint is based on his
allegation that upon release from a Nevada state and/or federal
prison, inmates who have a balance in their inmate trust account
(whether from earned wages in prison labor camps, deposited money,
or money confiscated upon incarceration) are forced to take the
Defendants' electronic release pay card that charges the Plaintiff
a fee to access the funds on the card.
The Plaintiff alleges five causes of action for violations of: (1)
Electronic Funds Transfers Act, 15 U.S.C. Section 1693; (2) Nevada
Deceptive Trade Practices Acct, NRS Section 598.092 (8 and 14) and
NRS 508,0923(3); (3) Conversion; (4) Unjust Enrichment; and (5)
Unconstitutional Taking. The Defendants removed to the Court on
Sept. 8, 2020. Other than service of the complaint and summons on
the Rapid Financial and Axiom Bank Defendants on Aug. 18, 2020,
there were no other proceedings while the case was pending in the
First Judicial District Court.
After removal, the Plaintiff and Defendants Rapid Financial and
Axiom Bank each filed certificates of interested parties on Sept.
8, 2020. The Court granted the Parties stipulation to extend the
time for Defendants Rapid Financial and Axiom Bank to respond to
the Complaint on Sept. 17, 2020. Defendants Rapid Financial and
Axiom Bank filed a Statement Concerning Removal pursuant to the
Court's Sept. 9, 2020 Minute Order on Sept. 17, 2021.
On Sept. 29, 2020, Defendants Rapid Financial and Axiom Bank filed
a motion to compel arbitration which was fully briefed as of Oct.
30, 2020. On Feb. 10, 2021, the Parties requested a stay of
discovery pending the Court's decision on the Defendants' Rapid
Financial and Axiom Bank motion to compel arbitration, which was
granted by the Court The Court's Order required the Plaintiff and
Defendants Rapid Financial and Axiom Bank to file a discovery plan
and scheduling order within 14 days of the Court's decision on the
motion to compel.
On Aug. 30, 2021, the Court entered its Order denying the
Defendants' Rapid Financial and Axiom Bank Motion in its entirety.
The Plaintiff and Defendants Rapid Financial and Axiom Bank timely
submitted a Joint Stipulated Discovery Plan and Scheduling Order
for the Court's review, which was approved on Sept. 13, 2021.
On Sept. 30, 2021, the Plaintiff provided his initial disclosures
to Defendants Rapid Financial and Axiom Bank, and on Oct. 1, 2021,
Defendants Rapid Financial and Axiom Bank provided their initial
disclosure to the Plaintiff.
On Oct. 1, 2021, Defendants Rapid Financial and Axiom Bank answered
the Plaintiff's original complaint.
On Jan. 7, 2022, the Plaintiff propounded his first sets of
requests for production and interrogatories to each Defendant,
Defendant Rapid Financial and Axiom Bank. Defendants Rapid
Financial and Axiom Bank timely responded on Feb. 22, 2022.
The Plaintiff disclosed his expert on damages to Defendants Rapid
Financial and Axiom Bank on March, 13, 2022; however, no expert
report was included because no data had been disclosed upon which
the Plaintiff's damages expert could opine.
The Plaintiff provided his first supplemental disclosures to
Defendants Rapid Financial and Axiom Bank on April 22, 2022, along
with Plaintiff's timely responses to Defendants Rapid Financial and
Axiom Bank first sets of requests for production and
interrogatories.
On April 1, 2022, the Court granted the Plaintiff and Defendants
Rapid Financial and Axiom Bank stipulation to file the Plaintiff's
First Amended Complaint ("FAC" and operative complaint). The
Plaintiff filed his FAC adding Defendant Keefe Commissary on April
2, 2022.
The Court granted the Plaintiff and Defendant Keefe Commissary
extension of time for Defendant Keefe to respond. Defendant Keefe
timely answered the Plaintiff's FAC and filed its certification of
interested parties on May 18, 2022.
The Plaintiff filed his motion for FRCP 23 class certification on
May 10, 2022. The Parties propose the updated following deadlines
for Defendants Rapid Financial and Axiom Bank, as well as Defendant
Keefe Commissary to opposed by July 19, 2022, and the Plaintiff's
reply in support by Aug. 2, 2022.
There are no other pending motions before the Court at this time.
III. Proposed Discovery Schedule
Pursuant to FRCP 26(f) and Local Rule 26-1(d), a telephonic meet
and confer was held on June 7, 2022, and was attended by Leah L.
Jones on behalf of the Plaintiff, and Robert McCoy and George
Verschelden on behalf of Defendants Rapid Financial and Axiom Bank
and by Sheri Thome and Russell Ponessa on behalf of Defendant Keefe
Commissary.
The Parties submit the following DPSO:
A. Subjects upon which Discovery may be needed: The Parties
agree that discovery may be needed on all matters set forth in the
operative Complaint and any defenses raised by the Defendants
thereto. They agree to take all reasonable steps to prevent
protracted discovery disputes regarding discovery. They affirm
their requirement to meet and confer pursuant to LR 26-6 prior to
involving the Court in any discovery disputes.
B. Limitations on Discovery: Because the case is filed as a
Nevada state class action, the Parties request additional time for
discovery purposes and thus a special scheduling review is
requested pursuant to LR 26-1(a).
C. Discovery Disputes: The Parties agree that before moving
for an order relating to discovery, they must comply with the
Federal Rules of Civil Procedure and applicable Local Rules of the
District.
D. Electronically Stored Information: All Parties will make
efforts to preserve ESI in their possession, custody or control
where the ESI may include information relevant to the litigation.
The Parties may confer prior to production to discuss formatting of
ESI. If the receiving party has an objection to the formatting of
ESI received, that party must confer with the producing party prior
to filing any motion or otherwise contacting the Court.
E. Privileged Materials: The Parties agree that a Party who
produces a document protected from disclosure by the
attorney-client privilege, attorney-work product doctrine or any
other recognized privilege without intending to waive the claim of
privilege associated with such document may promptly, meaning
within 30 days after the producing party actually discovers that
such inadvertent disclosure occurred, amend its discovery response
and notify the other Party that such document was inadvertently
produced and should have been withheld. Once the producing Party
provides such notice to the requesting Party, the requesting Party
must promptly, meaning within five business days, return the
specified document(s) and any copies thereof. By complying with
this obligation, the requesting Party does not waive any right to
challenge the assertion of privilege and request an order of the
Court denying such privilege.
F. Initial Disclosures: On Sept. 30, 2021, the Plaintiff
provided his initial disclosures to Defendants Rapid Financial and
Axiom Bank, and on Oct. 1, 2021, Defendants Rapid Financial and
Axiom Bank provided their initial disclosure to the Plaintiff. The
Plaintiff provided his initial disclosures to Defendant Keefe on
June 6, 2022. Defendants Rapid Financial and Axiom Bank provided
their initial and supplemental disclosures to Defendant Keefe
Commissary on June 7, 2022. Defendant Keefe Commissary will provide
its initial disclosures by June 30, 2022.
G. Discovery Cut-Off Date: In compliance with LR 26-2 the
Parties request additional time to complete discovery given the
potential for motion practice, the nature of issues involved in the
case, because the Plaintiff has asserted the case as a class
action, and because Defendant Keefe Commissary was recently added
to the case. The Parties propose an additional 123-day discovery
period in addition to the July 11, 2022 deadline set forth in ECF
No. 26. Thus, the due date for the proposed discovery plan to
complete all discovery related to the scope of any class and/or
subclasses, merits, and liability: Nov. 11, 2022.
H. Amending the Pleadings: The last day to file motions to
amend pleadings will be no later than 91 days prior to the
discovery cut-off date, or Aug. 12, 2022.
I. Motion for Class Certification: Plaintiff filed his motion
for FRCP 23 class certification on May 10, 2022. Defendants Rapid
Financial and Axiom Bank will oppose or no later than July 19,
2022. The Plaintiff's reply in support will be due 14 days
thereafter or Aug. 9, 2022.
J. Disclosure of Expert Witnesses: The Plaintiff disclosed his
expert witness on March 14, 2022, to Defendants Rapid Financial and
Axion Bank. The Plaintiff disclosed his expert witness to Defendant
Keefe Commissary on June 6, 2022. The Parties propose, pursuant to
FRCP 26(a)(2) identifying rebuttal experts will be made 91 days
prior to the discovery cut-off date, or Aug. 12, 2022.
K. Dispositive Motions: Because the viability and scope of any
class action has not been decided by the Court, it is the Parties'
position that it would be premature to establish a dispositive
motion deadline at this time. The Parties propose that they confer
and make a good faith effort to agree and submit an updated
proposed scheduling order which includes deadlines regarding any
additional interim status reports, dispositive motions, and trial
14 days after the Court rules on any FRCP 23 class certification.
An updated scheduling order regarding relevant deadlines should be
entered after FRCP class certification has been decided.
L. Pre-Trial Order: Because the viability and scope of any
class action has not been decided by the Court, it is the Parties'
position that it would be premature to establish a pre-trial order
deadline. The Parties propose that they confer and make a good
faith effort to agree and submit an updated proposed scheduling
order which includes deadlines regarding any additional interim
status reports, dispositive motions, and trial 14 days after the
Court rules on any motion directly related to FRCP 23 class
certification. An updated scheduling order regarding relevant
deadlines should be entered after FRCP class certification has been
decided.
M. FRCP 26(a)(3) Disclosures: The Parties agree to include
their disclosures required by FRCP 26(a)(3) and any objections
thereto in the joint pretrial order.
N. Alternative Dispute Resolution: In compliance with LR
26-1(b)(7) the Parties certify that they have met and conferred
about the possibility of using alternative dispute-resolution
process including mediation, arbitration, and neutral evaluation.
Given that the action is brought as a class action, the Parties
reserve the right to further confer about the possibility of using
alternative dispute resolution processes at the close discovery.
O. Alternative Forms of Case Disposition: In compliance with
LR 26-1(b)(8), the Parties have considered consenting to the
assigned Magistrate Judge, as well as the Short Trial Program.
P. Use of Electronic Evidence in Jury Trial: A jury trial has
not been demanded and in compliance with LR 26-1(b)(9) but the
Parties anticipate that they will be presenting evidence in an
electronic format, in the event the case is not resolved prior to
trial. The Parties stipulate and agree that any electronic evidence
will be reduced to searchable.pdf documents or other reasonably
usable formats, to the extent practicable, in compliance with the
Court's requirements for the electronic evidence.
Q. Extension of Scheduled Deadlines: The Parties agree to
comply with LR 26-4. All motions or stipulations to extend a
deadline set forth in a discovery plan will be received by the
Court no later than 21 days before the expiration of the subject
deadline.
R. Final Pretrial Conference: The Final Pretrial Conference
will be held two weeks prior to the scheduled Trial Date.
S. Trial Date: The Parties believe setting a proposed trial
date and length would be premature at this time.
IV. Disposition
Judge Denney approves the Parties DPSO.
A full-text copy of the Court's June 8, 2022 Order is available at
https://tinyurl.com/575nhpn5 from Leagle.com.
Mark R. Thierman -- mark@thiermanbuck.com -- Joshua D. Buck --
josh@thiermanbuck.com -- Leah L. Jones -- leah@thiermanbuck.com --
Joshua R. Hendrickson -- joshh@thiermanbuck.com -- THIERMAN BUCK,
LLP, in Reno, Nevada, Christian Gabroy -- christian@gabroy.com --
Kaine Messer -- kmesser@gabroy.com -- GABROY LAW OFFICES, in
Henderson, Nevada, Lance J. Hendron, Esq. -- lance@hlg.vegas --
HENDRON LAW GROUP, LLC, in Las Vegas, Nevada, Attorneys for the
Plaintiff.
KAEMPFER CROWELL, Robert McCoy -- rmccoy@kcnvlaw.com -- Ryan M.
Lower -- rlower@kcnvlaw.com -- Sihomara L. Graves --
sgraves@kcnvlaw.com -- in Las Vegas, Nevada, STINSON LLP, George
Verschelden (admitted pro hac vice), in Kansas City, Missouri,
Attorneys for Defendants Rapid Financial d/b/a Access Freedom
Cards; Axiom Bank.
WILSON, ELSER, MOSKOWITZ, EDELMAN & DICKER, LLP, Sheri M. Thome --
sheri.thome@wilsonelser.com -- Taylor A. Buono --
aylor.buono@wilsonelser.com -- in Las Vegas, Nevada, HINSHAW &
CULBERTSON LLP, Russell S. Ponessa (admitted pro hac vice), in
Minneapolis, Minnesota, Attorneys for Defendant Keefe Commissary
Network, LLC.
ROBERT HAMMER: Extension of Class Cert Briefing Deadlines Sought
----------------------------------------------------------------
In the class action lawsuit captioned as ISABEL ZELAYA, et al., v.
ROBERT HAMMER, et al., Case No. 3:19-cv-00062-TRM-CHS (E.D. Tenn.),
the Individual Defendants move the Court to:
– extend the deadline for their response to Plaintiffs'
Motion for Class Certification by one day from June 20,
2022, to June 21, 2022; and
-- extend the deadline for Plaintiffs to file a reply brief in
support of their motion by one day from June 27, 2022, to
June 28, 2022.
Under the Court's December 21, 2021 Scheduling Order, the
Plaintiffs' motion for class certification was due on or before May
2, 2022.
On April 18, 2022, the Plaintiffs moved to extend their deadline to
file a class certification motion from May 2, 2022, to May 31,
2022. In their motion, the Plaintiffs proposed that "any opposition
filed by the Defendants would be due three weeks after Plaintiffs'
brief and any reply would be filed a week after the opposition,
consistent with the timing in the current Scheduling Order."
The parties conferred regarding Plaintiffs' motion for an extension
of time and, on Thursday, April 21, 2022, reached an agreement
regarding deadlines for class certification filings. The agreement
was memorialized in an email among counsel for the parties, which
confirmed that the Defendants consented to extending Plaintiffs'
deadline to file a motion for class certification to May 31, 2022.
The parties also agreed that the deadline for Defendants' response
to Plaintiffs' motion would be extended to June 21, 2022 (21 days
after the filing of the motion), and that the deadline for
Plaintiffs' reply in support of their motion would be extended to
June 28, 2022 (seven days after the filing of the response).
On the following Monday, April 25, 2022, the Court entered an order
granting Plaintiffs' motion and setting May 31, 2022, as the
deadline for Plaintiffs' motion for class certification.
The Court's order also set June 20, 2022, as the deadline for
Defendants' response and June 27, 2022, as the deadline for
Plaintiffs' reply. The Plaintiffs timely filed their Motion for
Class Certification on May 31, 2022.
The parties respectfully request that the Court extend each of the
remaining class certification briefing deadlines by one day to give
Defendants the benefit of three full weeks to respond to
Plaintiffs' lengthy and detailed class certification motion, and to
give Plaintiffs the benefit of one full week in which to prepare a
reply.
A copy of the Plaintiffs' motion dated June 14, 2022 is available
from PacerMonitor.com at https://bit.ly/3b0IUQW at no extra
charge.[CC]
The Defendants are represented by:
Donald J. Aho, Esq.
Zachary H. Greene, Esq.
Bradford G. Harvey, Esq.
Russ F. Swafford, Esq.
MILLER & MARTIN PLLC
1200 Volunteer Building
832 Georgia Avenue
Chattanooga, TN 37402
Telephone (423) 756-6600
E-mail: don.aho@millermartin.com
zac.greene@millermartin.com
brad.harvey@millermartin.com
- and -
Lynsey M. Barron, Esq.
Alexander C. Vey, Esq.
1180 Peachtree Street, N.E., Suite 2100
Atlanta, GA 30309
Telephone (404) 962-6100
E-mail: lynsey.barron@millermartin.com
alex.vey@millermartin.com
SANTANDER BANK: Settlement in Tepper Suit Gets Initial Approval
---------------------------------------------------------------
In the class action lawsuit captioned as DANIEL TEPPER and REBECCA
RUFO-TEPPER, on behalf of themselves and all others similarly
situated, v. SANTANDER BANK, N.A., and DOES 1 through 10,
inclusive, Case No. 7:20-cv-00501-KMK (S.D.N.Y.), the Hon. Judge
Kenneth M. Karas entered an amended order preliminarily approving
class action settlement, granting preliminary certification of
settlement class, and providing for notice as follows:
-- Preliminary Class Certification for Settlement Purposes
Only:
The Court preliminarily certifies a class (the "Settlement
Class") for settlement purposes only, of:
"all persons, including individuals and entities, who are
holding, or have held, during the Class Period, a mortgage
loan secured by real property in the states of Connecticut,
Iowa, Maine, Maryland, Massachusetts, New York, Oregon,
Rhode Island, Vermont, Utah or Wisconsin who would have
been due interest on an escrow account maintained by
Santander under the law of the state in which the property
was located but were not paid such interest."
Excluded from the Settlement Class are Defendant;
Defendant's officers and directors at all relevant times,
as well as members of their immediate families and their
legal representatives, heirs, successors, or assigns; and
any entity in which Defendant has or had a controlling
interest.
"Class Period" means the period beginning, for Settlement
Class Members whose mortgage loan is secured by real
property in Iowa or Rhode Island, on January 1, 2010; in
Connecticut, Maine, Massachusetts, New York, Oregon, Utah,
Vermont, or Wisconsin, on January 1, 2014; and in Maryland,
on January 1, 2017; and ending on the date this Order is
entered by the Court.
-- Class Representative and Class Counsel
The Court appoints Janine L. Pollack and Michael Liskow of
Calcaterra Pollack LLP as Class Counsel for the Settlement
Class. Daniel Tepper and Rebecca Rufo-Tepper are hereby
appointed as Class Representatives.
-- Preliminary Settlement Approval
The Court preliminarily approves the Settlement set forth
in the Agreement as being within the range of possible
approval as fair, reasonable, and adequate, within the
meaning of Federal Rule of Civil Procedure 23 and the Class
Action Fairness Act of 2005, based on the Parties'
information provided to the Court and subject to final
consideration at the Final Approval Hearing provided for
below. Accordingly, and because the Court is likely to be
able to certify the proposed Settlement Class for purposes
of judgment on the Settlement proposal, the Court has
adequate grounds to direct Notice to the Settlement Class.
-- Final Approval Hearing
The Final Approval Hearing shall take place before the
Honorable Kenneth M. Karas on October 27, 2022 at 10:00 am.
-- The Court sets the following schedule for the Final
Approval Hearing and the actions which must precede it:
a. The Plaintiffs shall file their Motion for Final
Approval of the Settlement no later than [42 calendar
days before Final Approval Hearing] September 15, 2022.
b. The Plaintiffs shall file their Fee & Expense Motion and
Motion for Service Award no later than [42 calendar days
before Final Approval Hearing] September 15, 2022.
c. Settlement Class Members must file any objections to the
Settlement, the Fee & Expense Motion and/or the Motion
for Service Award by no later than [28 calendar days
before Final Approval Hearing] September 29, 2022
d. Settlement Class Members must exclude themselves, or
opt-out, from the Settlement by no later than [28
calendar days before Final Approval Hearing] September
29, 2022.
e. Settlement Class Members who intend to appear at the
Final Approval Hearing must file a Notice of Intention
to Appear at the Final Approval Hearing by no later than
[5 calendar days before Final Approval Hearing] October
23, 2022.
f. Class Counsel and Defendant shall have the right to
respond to any objection no later than [7 calendar days
prior to the Final Approval] October 20, 2022.
g. The Final Approval Hearing will take place on October
27, 2022 at 10:00 am.
Santander Bank, formerly Sovereign Bank, is a wholly owned
subsidiary of the Spanish Santander Group. It is based in Boston
and its principal market is the northeastern United States.
A copy of the Court's order dated June 14, 2022 is available from
PacerMonitor.com at https://bit.ly/3zDGwK1 at no extra charge.[CC]
SIMONE SUBAL GALLERY: Jackson Files ADA Suit in S.D. New York
-------------------------------------------------------------
A class action lawsuit has been filed against Simone Subal Gallery
LLC. The case is styled as Sylinia Jackson, on behalf of herself
and all other persons similarly situated v. Simone Subal Gallery
LLC, Case No. 1:22-cv-04753 (S.D.N.Y., June 7, 2022).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Simone Subal Gallery -- https://simonesubal.com/ -- is an art
gallery in New York City.[BN]
The Plaintiff is represented by:
Jeffrey Michael Gottlieb, Esq.
Michael A. LaBollita, Esq.
150 E. 18 St., Suite PHR
New York, NY 10003
Phone: (212) 228-9795
Fax: (212) 982-6284
Email: nyjg@aol.com
michael@gottlieb.legal
SLACK TECHNOLOGIES: Faces Consolidated Class Action
---------------------------------------------------
Salesforce, Inc. disclosed in its Form 10-Q Report for the
quarterly period ended April 30, 2022, filed with the Securities
and Exchange Commission on June 1, 2022, that its subsidiary Slack
Technologies, Inc., its directors, certain of its officers and
certain investment funds associated with certain of its directors
are facing a consolidated class action captioned "In re Slack
Technologies, Inc. Shareholder Litigation."
Slack and the other defendants filed a motion to dismiss the
complaint in January 2020. In April 2020, the court granted in part
and denied in part the motion to dismiss. In May 2020, Slack and
the other defendants filed a motion to certify the court's order
for interlocutory appeal, which the court granted. Slack and the
other defendants filed a petition for permission to appeal the
district court's order to the Ninth Circuit Court of Appeals, which
was granted in July 2020. Oral argument was heard in May 2021. On
September 20, 2021, the Ninth Circuit affirmed the district court's
ruling. Slack filed a petition for rehearing with the Ninth Circuit
on November 3, 2021, which was denied on May 2, 2022. The state
court actions were consolidated in November 2019, and the
consolidated action was captioned "In re Slack Technologies, Inc.
Shareholder Litigation," Lead Case No. 19CIV05370.
Salesforce, Inc. provides customer relationship management
technology. In July 2021, it acquired Slack Technologies, Inc.
SLACK TECHNOLOGIES: Faces Securities Suits in CA Court
-------------------------------------------------------
Salesforce, Inc. disclosed in its Form 10-Q Report for the
quarterly period ended April 30, 2022, filed with the Securities
and Exchange Commission on June 1, 2022, that beginning September
2019, seven purported class action lawsuits were filed against its
subsidiary Slack Technologies, Inc., its directors, certain of its
officers and certain investment funds associated with certain of
its directors, each alleging violations of securities laws in
connection with Slack's registration statement filed with the
Securities and Exchange Commission (SEC).
All but one of these actions were filed in the Superior Court of
California for the County of San Mateo, though one plaintiff
originally filed in the County of San Francisco before refiling in
the County of San Mateo. The remaining action was filed in the U.S.
District Court for the Northern District of California.
Salesforce, Inc. provides customer relationship management
technology. In July 2021, it acquired Slack Technologies, Inc.
SOLA SALON: Brown Files ADA Suit in S.D. New York
-------------------------------------------------
A class action lawsuit has been filed against Sola Salon Studios,
LLC. The case is styled as Lamar Brown, on behalf of himself and
all others similarly situated v. Sola Salon Studios, LLC, Case No.
1:22-cv-04737 (S.D.N.Y., June 7, 2022).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Sola Salon Studios -- https://www.solasalonstudios.com/ -- operates
as a franchisor and operation of salon suites. The Company offers
hair and skin related services.[BN]
The Plaintiff appears pro se.
SPINNAKER RESORTS: Preliminary Pretrial Order Entered in Dudas
--------------------------------------------------------------
In the class action lawsuit captioned as JOSEPH DUDAS, v. SPINNAKER
RESORTS, INC., et al., Case No. 2:20-cv-06008-MHW-CMV (S.D. Ohio),
the Hon. Magistrate Judge Chelsey M. Vascura entered an preliminary
pretrial order as follows:
-- The parties have agreed to make June 30, 2022
initial disclosures by:
-- Motions or stipulations addressing October 1, 2022.
the parties or pleadings, if any,
must be filed no later than:
-- The Plaintiff's motion for class April 28, 2023.
certification must be filed by
-- Primary expert reports must be Jan. 31, 2023
produced by:
-- Rebuttal expert reports must be March 31, 2023
produced by:
-- All discovery shall be completed by April 14, 2023
-- Case dispositive motions relating April 28, 2023
to individualized issues and claims
to be filed by:
-- Settlement:
The Plaintiff shall make a April 14, 2023
settlement demand:
The Defendants will respond: April 28, 2023
Spinnaker Resorts is a travel & tourism company specializing in
luxury real estate and property management services.
A copy of the Court's order dated June 13, 2022 is available from
PacerMonitor.com at https://bit.ly/3MOveWqat no extra charge.[CC]
STATE FARM: Colorado Court Dismisses RTP Suit Without Prejudice
---------------------------------------------------------------
In the case, RTP ROOFING CO., Plaintiff v. STATE FARM FIRE AND
CASUALTY COMPANY, Defendant, Civil Action No. 21-cv-1816-WJM-SKC
(D. Colo.), Judge William J. Martinez of the U.S. District Court
for the District of Colorado grants the Defendant's Motion to
Dismiss and the Plaintiff's Motion to Replead.
I. Introduction
Plaintiff RTP Roofing Co. ("RTP" or "Plaintiff") sues Defendant
State Farm for unreasonable delay or denial of insurance benefits
in violation of Colorado Revised Statutes Sections 10-3-1115 and
-1116, unjust enrichment, and a declaratory judgment that the
Defendant's insurance-payment practices violate Sections 10-3-1115
and -1116. The Plaintiff seeks monetary damages on behalf of itself
and those similarly situated, and to permanently enjoin Defendant
from continuing the insurance-payment practices that it claims
violate Sections 10-3-1115 and -1116.
Currently before the Court is the Defendant's Motion to Dismiss and
the Plaintiff's Motion to Replead.
II. Background
Plaintiff RTP is a roofing contractor based in Colorado. Typically,
when a homeowner requires roof repairs covered by insurance, the
contractor works directly with the insurance company once the
homeowner has made a claim. This process includes the preparation
of materials and labor cost estimates by both the roofing
contractor and the insurance company. When a structure must be
re-roofed due to damage, existing roofing materials must first be
removed; RTP asserts this "tear-off" work "requires the same skill
and care as installing roofing materials" and must, therefore, be
performed by the same skilled (and more expensive) laborers it
employs to install roofing materials.
Defendant State Farm is an insurance company based in Illinois. It
provides homeowners' insurance in Colorado and, according to RTP,
controls the largest share of the Colorado market. According to
RTP, over the last 10 years, it has frequently performed roofing
work for State Farm insureds.
RTP notes three specific instances of roofing work it performed in
Sedalia, Highlands Ranch, and Parker, Colorado, for homeowners
insured by State Farm. For each instance raised by RTP, both RTP
and State Farm estimated the labor costs for the removal of
existing roofing materials using the lower, demolition rate. For
its part, RTP acknowledges its labor estimates used the demolition
rate but explains that it uses this rate when performing work for
homeowners insured by State Farm only because State Farm has
consistently refused to pay more than the skilled-labor rate for
tear-off work. RTP does not assert that the tear-off work it
performed for State Farm insureds was uncompensated or that its
costs to perform tear-off work exceed what it charged insureds
using the demolition rate prescribed by State Farm. Nor does RTP
assert or provide facts suggesting that other insurance companies
or their customers pay the higher skilled-labor rate for roofing
tear-off work.
According to RTP, State Farm's refusal to pay the appropriate
skilled-labor rate has caused other roofing contractors in Colorado
to change their labor estimation practices and accept less money
for roof tear-off work than they otherwise would. As such, it seeks
certification of a class under Federal Rule of Civil Procedure Rule
23(b)(3) consisting of "All persons or entities who performed
roofing work for a State Farm insured in connection with a claim
for roof damage covered under a State Farm insurance policy and
were denied payment of the roofing labor rate for removal of
roofing materials by State Farm in the period of July 2, 2019, to
the present."
The policy states, in relevant part: State Farm will pay the cost
to repair or replace the damaged part of the property, subject to
the following: (1) until actual repair or replacement is completed,
we will pay only the actual cash value of the damaged part of the
property, not to exceed the cost to repair or replace the damaged
part of the property.
III. Analysis
A. Motion to Dismiss
a. Nature of the Jurisdictional Attack
Judge Martinez first considers whether the Defendant brings a
facial or factual attack for lack of subject-matter jurisdiction.
Both parties consider the Defendant's jurisdictional attack as
factual, and Judge Martinez agrees. The Defendant attacks the
allegations in the Plaintiff's Complaint and supports the Motion to
Dismiss with extrinsic evidence. Accordingly, Judge Martinez
considers facts outside the pleadings without converting the Motion
to Dismiss into one for summary judgment. In addition, he does not
"presume the truthfulness of the Plaintiff's factual allegations."
b. Standing
For a court to have subject-matter jurisdiction, a plaintiff must
have standing. At its "irreducible constitutional minimum,"
standing has three elements. First, a plaintiff must suffer an
"injury in fact" that is concrete and particularized, and actual or
imminent, not conjectural or hypothetical. Second, the injury must
be traceable to the challenged action of the defendant. Third, it
must be likely that the injury will be redressed by the relief
requested. Standing is determined as of the time the action is
brought. In the case, the Plaintiff seeks both retrospective
(monetary) and prospective (injunctive) relief.
1. Standing to Seek Damages
In its Motion to Dismiss, the Defendant argues that the Plaintiff
has no standing to seek damages because it has not been harmed and
its claims should be dismissed for lack of subject-matter
jurisdiction.
Giving due consideration to the parties' competing contentions and
arguments on this issue, Judge Martinez concludes that the
Plaintiff lacks standing because it has failed to demonstrate that
it has suffered an injury in fact. As the Defendant correctly
points out, its policy expressly limits any payment based on
"actual cash value" to the "cost to repair or replace the damaged
part of the property," and the Plaintiff fails to present evidence
that either its costs to perform removal work or the amount charged
to its customers exceeded its own estimates.
2. Standing to Seek Injunctive Relief
The Defendant does not address the Plaintiff's standing to seek
prospective relief in its Motion to Dismiss; however, the Defendant
argues that the Plaintiff fails to allege it is suffering a
continuing injury or faces a real and immediate threat of being
injured in the future. For its part, the Plaintiff argues that it
alleges in its First Amended Complaint that the Defendant's
wrongful conduct is "continuous and ongoing" and seeks an
injunction to prevent future harm.
The Plaintiff does not allege that it charges customers for roof
tear-off work -- or intends to charge them in the future -- based
on the skilled-labor rate it claims is appropriate. Nor does it
allege ever having done so. Therefore, much like the alleged past
damages, Judge Martinez holds that the Plaintiff's alleged future
damages are merely hypothetical. He says, the Plaintiff's
speculation that in the future it may be able to charge a higher
rate for roof tear-off work and be paid by the Defendant at that
higher rate is beyond the bounds of the Court's jurisdiction. T
3. Class Action Allegations
Finally, the fact that the Plaintiff brought the lawsuit as a
putative class action does not save its claims. It is
well-established that a named plaintiff of a class must
individually and independently have standing, and that such a
putative class representative cannot rely on potential class
members' injuries to satisfy his burden.
Based on the foregoing, Judge Martinez finds that the Plaintiff
lacks standing because it has not demonstrated it suffered an
injury in fact. Accordingly, its lawsuit must be dismissed for lack
of subject-matter jurisdiction.
B. Plaintiff's Motion to Replead
In its Motion to Replead, the Plaintiff requests that "to the
extent the Court believes State Farm's motion is meritorious and
finds re-pleading necessary and/or appropriate, RTP respectfully
requests the opportunity to further amend its pleading." It argues
that, under Rule 15(a) and related precedent, a district court's
refusal to permit amendment "is generally only justified in the
case of undue delay, undue prejudice to the opposing party, bad
faith or a dilatory motive, failure to cure deficiencies by
amendments the court has previously allowed, or futility." It
further points out that the Court has never previously noted a
deficiency in its pleading or granted a motion to amend.
The Defendant responds that the Plaintiff has failed to adhere to
the Local Rules and Revised Practice Standards of the Court and, in
doing so, has also failed to provide the Court and the Defendant
with adequate notice of the basis of its proposed amendment. The
Court notes that Plaintiff's failure to familiarize itself with its
Revised Practice Standards resulted in its first Motion to Replead
being stricken. The Plaintiff subsequently refiled its motion after
complying with its obligation to meet and confer with defense
counsel. The Defendant also argues that the fact that the Plaintiff
has already amended its complaint once weighs against allowing
further amendment, because the Plaintiff has already had two
opportunities to file an adequate pleading.
Judge Martinez finds that the Court has not previously noted a
deficiency and allowed amendment. Where the Defendant has a point,
however, is the Plaintiff's failure follow the Local Rules and
Revised Practice Standards of the Court. Despite the clear
directives in Local Rule 15.1(b) and Revised Practice Standard
III.E, the Plaintiff failed to attach as exhibits either a clean
copy of their proposed amended pleading or a redline comparing that
proposed amended pleading to the currently operative complaint.
Without the Plaintiff's proposed amendments, it is difficult for
either the Court or the Defendant to assess whether further
amendment would be futile.
Still, Judge Martinez cannot definitively conclude that there are
no set of facts the Plaintiff might be able to plausibly allege to
cure the significant jurisdictional problem identified by the
Defendant. Therefore, and solely in the interest of justice, he
overlooks the Plaintiff's second failure to comply with Local Rules
and its Revised Practice Standards and permits the Plaintiff to
file a second amended complaint.
IV. Conclusion
For the reasons he set forth, Judge Martinez grants the Defendant's
Motion to Dismiss and dismisses the Plaintiff's First Amended
Complaint without prejudice for lack of subject-matter
jurisdiction.
Judge Martinez also grants the Plaintiff's Motion to Amend. The
Plaintiff will file a Second Amended Complaint by no later than
June 21, 2022. The Defendant will file its Answer or other
responsive pleading by no later than July 8, 2022.
A full-text copy of the Court's June 8, 2022 Order is available at
https://tinyurl.com/49nmz8h9 from Leagle.com.
STATE FARM: Seeks June 30 Extension to File Class Cert Response
---------------------------------------------------------------
In the class action lawsuit captioned as DANNY PEDERSEN, as
Personal Representative of the Estate of Robert L. Lindsay; BETTY
L. RADOVICH; WANDA WOODICK; and ROSALIE KIERNAN, as Personal
Representative of the Estate of Rebecca Nicholson; individually and
on behalf of those similarly situated, v. STATE FARM MUTUAL
AUTOMOBILE INSURANCE COMPANY, an Illinois Corporation, Case No.
4:19-cv-00029-BMM-JTJ (D. Mont.), the Defendant asks the Court to
enter an order granting its two-week extension, up to and including
June 30, 2022, to file its response to Plaintiffs' Motion for Class
Certification.
The Plaintiffs filed their Motion on May 19, 2022. Pursuant to Doc.
207, State Farm's response is due June 16, 2022, and Plaintiffs'
reply is due June 30, 2022.
State Farm requests a two-week extension to finish preparing an
appropriate response and allow adequate time for review, up to and
including June 30, 2022.
Accordingly, the Parties request a two-week extension for
Plaintiffs' to file their reply in support of their Motion, up to
and including July 14, 2022. Pursuant to Local Rule 7.1(c)(1),
undersigned counsel for State Farm has conferred with counsel for
Plaintiffs regarding this motion, and Plaintiffs do not oppose the
requested extension.
State Farm Insurance is a large group of mutual insurance companies
throughout the United States with corporate headquarters in
Bloomington, Illinois.
A copy of the Defendant's motion dated June 13, 2022 is available
from PacerMonitor.com at https://bit.ly/3MRAAQB at no extra
charge.[CC]
The Defendant is represented by:
Dale R. Cockrell, Esq.
MOORE, COCKRELL,
GOICOECHEA & JOHNSON, P.C.
145 Commons Loop, Suite 200
P.O. Box 7370
Kalispell, MT 59904-0370
Telephone: (406) 751-6000
Facsimile: (406) 756-6522
E-mail: dcockrell@mcgalaw.com
- and -
Jeremy A. Moseley, Esq.
Hannah S. McCalla, Esq.
SPENCER FANE LLP
1700 Lincoln Street, Suite 2000
Denver, CO 80203
Telephone: (303) 839-3800
Facsimile: (303) 839-3838
E-mail: jmoseley@spencerfane.com
hmccalla@spencerfane.com
SURNAIK HOLDINGS: Loses Bid for Writ of Prohibition in Snider Suit
------------------------------------------------------------------
In the case, STATE OF WEST VIRGINIA, EX REL., SURNAIK HOLDINGS OF
WV, LLC, Petitioner v. HONORABLE THOMAS A. BEDELL, sitting by
assignment as Judge of the Circuit Court of Wood County; and PAUL
SNIDER, Respondents, Case No. 21-0610 (W. Va. App.), the Supreme
Court of Appeals of West Virginia denies the Petitioner's petition
for a writ of prohibition.
I. Introduction
The Court notes that this is the second time the class action case,
pursued under Rule 23 of the West Virginia Rules of Civil
Procedure, has come to the Court on a petition for relief under its
original jurisdiction. In the Court's prior decision, it granted a
writ of prohibition and dissolved the circuit court's former class
certification order -- State ex rel. Surnaik Holdings of WV, LLC v.
Bedell, 244 W.Va. 248, 852 S.E.2d 748 (2020) ("Surnaik I").
The Petitioner again seeks a writ of prohibition to stop the
circuit court's most recent order certifying the case for class
action relief.
II. Background
In October of 2017, a week-long fire consumed a warehouse in
Parkersburg, West Virginia, owned by the Petitioner, Surnaik. The
warehouse tenant at the time was in the business of purchasing and
recycling chemical waste and other byproducts from chemical
manufacturers. The fire was massive, causing the county commission
to declare it a disaster and the governor to declare a state of
emergency. In just the first twelve hours, firefighters pumped six
million gallons of water on the fire.
Respondent Paul Snider is a resident of Parkersburg. He alleges
that the fire generated poisonous smoke filled with particulate
matter and gasses that blanketed much of Parkersburg and the
surrounding area. The Respondent filed the instant action and,
under Rule 23, sought to form a class action composed of all
residents and businesses within an 8.5-mile radius of Surnaik's
warehouse. The Respondent's complaint (and later amended complaint)
alleged that Surnaik had allowed the warehouse's fire protection
system to fall into a state of disrepair. He asserted causes of
action for negligence and sought various forms of compensatory
damages on behalf of himself and the putative class members
including for diminution in the value of property, loss of use and
enjoyment of property, lost profits of businesses, and personal
injuries.
After the parties conducted discovery, the Respondent filed a
motion for class certification. He proposed defining the putative
class as containing individuals who lived in certain geographic
areas (called "isopleths") surrounding the burned warehouse. Those
isopleths met two conditions: beginning with the start of the
warehouse fire, (1) there were concentrations of fine particles 2.5
micrometers or less in size ("PM2.5") that had been emitted by the
fire; and (2) the fine particles averaged three micrograms per
cubic meter ("3 ug/m3") or more over any24r-hour period during the
fire. Surnaik opposed the respondent's motion for class
certification.
In an order entered Sept. 12, 2019, the circuit court granted the
Respondent's motion for class certification. The circuit court
adopted respondent's definition of the class.
Surnaik then petitioned the Court for a writ of prohibition to halt
the circuit court's September 2019 class certification order. After
hearing oral argument by the parties, the Court granted the writ of
prohibition on Nov. 20, 2020. Overall, its opinion observed that
"class certification determinations are not perfunctory" and that a
"circuit court must give careful consideration" to whether a party
seeking class certification has met the burdens imposed by Rule 23
of the West Virginia Rules of Civil Procedure. In Surnaik I,
because of the circuit court's insufficient discussion of the
predominance and superiority requirements of Rule 23(b), the Court
granted the writ of prohibition. Accordingly, it vacated the
circuit court's September 2019 order granting class certification.
When the case returned to the circuit court, the Respondent renewed
his bid to have the circuit court grant class certification to his
case. The Defendant again opposed class certification. In an order
signed June 15, 2021, the circuit court again granted class
certification to the Respondent's case.
Despite the circuit court's findings, on July 30, 2021, Petitioner
Surnaik filed a second petition for a writ of prohibition with the
Court. Surnaik's petition asserts it is challenging the circuit
court's June 2021 certification order because it contains "the same
flaws that plagued the first certification" order. The Court
granted a rule to show cause to review the circuit court's order,
and it allowed the parties oral argument.
III. Discussion
In its petition to the Court, Surnaik asserts six properly raised
assignments of error. Most of these assignments were previously
raised in Surnaik I.
Surnaik's first, second, third, fifth, and sixth arguments are
virtually identical to arguments made in Surnaik I. First, Surnaik
"argues that the circuit court erred by certifying a class in which
only 10% of the class is likely to have been injured, thereby
failing to satisfy the predominance requirement of West Virginia
Rule of Civil Procedure 23(b)(3)." Second and third, "Surnaik
contends that mass accident and toxic tort matters, such as this
one, are not appropriate for class adjudication," and that federal
courts refuse to certify similar personal injury claims.
Surnaik insists that the certified class is fatally deficient
because the number of uninjured individuals vastly exceeds the
injured and weeding out uninjured class members eviscerates any
efficiencies gained through the class mechanism. Surnaik's fifth
and sixth assignments mirror its third in Surnaik I, which was that
a class cannot be certified "because the Respondent conceded he did
not suffer any property damage, and the requirements of standing
and typicality preclude him from representing a class seeking that
relief."
The Court rejects these five arguments because they misapprehend
the circuit court's order. It finds no error in the circuit court's
conclusion that Surnaik's breach of any applicable duties owed to
the individuals in the class-defined areas presents at least one
common question that predominates over other questions and that the
question merits class action resolution. The Court likewise finds
no error in the circuit court's determination that the Respondent,
who was deprived of the enjoyment of his home by transient smoke
without his property being physically damaged, is a typical and
proper representative of the class. Accordingly, it rejects
Surnaik's first, second, third, fifth, and sixth assignments of
error.
Surnaik's fourth assignment of error is identical to its fourth
assignment of error in Surnaik I, that is, "Surnaik alleges that
the circuit court erred by certifying a class whose members are not
readily identifiable by reference to objective criteria." It argues
that members must "be identified with sufficient specificity so
that it is administratively feasible for the court to ascertain
whether a particular individual is a member." Surnaik contends the
circuit court's order lacked sufficient specificity to define the
individuals within the class.
The Court rejects this argument because the class is clearly
defined by a geographical boundary. It is well-established that
Rule 23 permits courts to certify classes defined by geography. The
circuit court order narrowed the class to individuals within
geographically defined isopleths of potential exposure.
Accordingly, the Court finds no merit in Surnaik's fourth
assignment of error.
IV. Conclusion
After consideration of Surnaik's assignments of error, the Court
finds no clear error as a matter of law in the circuit court's June
2021 class certification order. Hence, it cannot say the lower
tribunal exceeded its legitimate powers, and it must, therefore,
deny the requested writ of prohibition. Accordingly, writ is
denied.
A full-text copy of the Court's June 8, 2022 Order is available at
https://tinyurl.com/y588jxu7 from Leagle.com.
Ryan McCune Donovan, Esq., J. Zak Ritchie, Esq. --
zritchie@hfdrlaw.com -- Andrew C. Robey, Esq. -- arobey@hfdrlaw.com
-- Hissam Forman Donovan Ritchie PLLC, in Charleston, West
Virginia, Counsel for the Petitioner.
Alex McLaughlin, Esq., John H. Skaggs, Esq., Calwell Luce diTrapano
PLLC, in Charleston, West Virginia, Counsel for Respondent Snider.
TALEN ENERGY: Non-Debtor Defendants Seek Leave to File Sur Reply
----------------------------------------------------------------
In the class action lawsuit captioned as ANNETTE M. DURNACK, et
al., v. RET. PLAN COMM. OF TALEN ENERGY CORP., et al., Case No.
5:20-cv-05975-JLS (E.D. Pa.), the Non-Debtor Defendants request
leave to file the Sur-Reply in Opposition to Plaintiffs' Motion for
Class Certification, pursuant to this Court's Local Rules and
Standing Order and Procedures on Civil Motion Practice.
On May 18, 2022, the Plaintiffs filed their Reply Memorandum in
Support of Their Motion for Class Certification. In their Reply,
Plaintiffs raised entirely new arguments regarding, inter alia,
their and the putative class members' alleged entitlement to
benefits under the Talen Energy Retirement Plan (the Plan).
Moreover, the Plaintiffs submitted approximately 80 pages of new
"evidence" that they contend support their Motion for Class
Certification. But a reply brief "is intended only to provide an
opportunity to respond to the arguments raised in the response
brief; it is not intended as a forum to raise new issues." And when
a party introduces new arguments or evidence on reply, the
non-moving party should be afforded an opportunity to respond if
the Court intends to consider those arguments or evidence.
Accordingly, Non-Debtor Defendants request leave to file the
attached Sur-Reply to address Plaintiffs’ new arguments and
evidence so that this Court may have a full record of the actual
issues regarding Plaintiffs’ Motion for Class Certification. It
is entirely within this Court's discretion whether to grant
permission for leave to file a sur-reply.
Talen Energy is an independent power producer founded in 2015. It
was formed when the competitive power generation business of PPL
Corporation was spun off and immediately combined with competitive
generation businesses owned by private equity firm Riverstone
Holdings.
A copy of the Defendants' motion dated June 13, 2022 is available
from PacerMonitor.com at https://bit.ly/3Hq6R0a at no extra
charge.[CC]
The Defendants are represented by:
Jeremy P. Blumenfeld, Esq.
Brandon J. Brigham, Esq.
Ashley E. Baxter, Esq.
MORGAN, LEWIS & BOCKIUS LLP
1701 Market Street
Philadelphia, PA 19103
Telephone: (215) 963-5000
Facsimile: (215) 963-5001
E-mail: jeremy.blumenfeld@morganlewis.com
brandon.brigham@morganlewis.com
ashley.baxter@morganlewis.com
UNILEVER US: Taylor Bid to Certify Class Denied as Moot
--------------------------------------------------------
In the class action lawsuit captioned as Taylor v. Unilever US,
Inc., Case No. 2:20-cv-02803 (W.D. Tenn.), the Hon. Judge Sheryl H.
Lipman entered an order denying as moot without prejudice motion to
certify class.
The suit alleges violation of the Fair Labor Standards Act.
Unilever manufactures personal care products.[CC]
UPHOLD HQ: Sandoval Suit Referred to Magistrate for Pretrial Mgmt.
------------------------------------------------------------------
Magistrate Judge Barbara Moses of the U.S. District Court for the
Southern District of New York issued an order regarding general
pretrial management in the case, ADDISON SANDOVAL, et al.,
Plaintiffs v. UPHOLD HQ INC., Defendant, Case No. 21-CV-07579 (VSB)
(BCM) (S.D.N.Y.).
The action has been referred to Magistrate Judge Barbara Moses for
general pretrial management, including scheduling, discovery,
non-dispositive pretrial motions, and settlement, pursuant to 28
U.S.C. Section 636(b)(1)(A). All pretrial motions and applications,
including those related to scheduling and discovery, but excluding
motions to dismiss or for judgment on the pleadings, for injunctive
relief, for summary judgment, or for class certification under Fed.
R. Civ. P. 23, must be made to Judge Moses and in compliance with
the Court's Individual Practices in Civil Cases, available on the
Court's website.
I. Background
The putative class action was filed on Sept. 10, 2021, by four
Plaintiffs who allege that Defendant Uphold, a "digital currency
money platform," defrauded them and others, in violation of N.Y.
Gen. Bus. L. Section 349 and related laws, when it "actively,
uniformly, and deceptively promoted an investment in a product
called 'Uphold Earn,'" which it knew to be "a worthless product, or
at minimum, one with undisclosed material risks," causing the
Plaintiffs to lose their Earn investments "when the company behind
'Earn,'" known as "Cred, Inc.," went bankrupt following egregious
mismanagement."
Uphold has filed a motion to dismiss all of the Plaintiffs' claims
which is pending before the Hon. Vernon S. Broderick, United States
District Judge. Uphold has also "reserved the right" to file
counterclaims and affirmative defenses if and when it answers the
Amended Complaint. Fact discovery is ongoing.
II. The Parties' Discovery Dispute
By joint letter dated June 3, 2022, the parties seek a ruling as to
certain third-party subpoenas issued by Uphold to Bank of America,
where plaintiff Lionel Ducote maintains an account, and to Wells
Fargo Bank, where plaintiff Nicholas King maintains an account.
Although the parties did not attach the subpoenas themselves to
their letter, they agree that each subpoena seeks "all documents
and communications" concerning "any accounts" maintained by the
subject bank to or for the benefit of Ducote or King since July 1,
2020, "including, but not limited to, any and all" accounts,
statements, or other documents "concerning unauthorized use or
disputed transactions on any accounts."
Defendant Uphold explains that a third plaintiff, Addison Sandoval,
purchased cryptocurrency from Uphold -- using funds transferred
from his bank account at Ally Bank -- and then lent that
cryptocurrency to Cred. When Cred filed for bankruptcy protection,
plaintiff Sandoval, "instead of seeking claims against Cred," filed
numerous applications with Ally "asserting that his own ACH
withdrawals from his Ally account to his Uphold account were
'unauthorized' at the time the transfers were made." Uphold states
that it intends to file fraud-based counterclaims against Sandoval
arising out of this conduct, id., and that the subpoenas now at
issue -- addressed to Bank of America and Wells Fargo Bank -- are
intended to "discover whether Messrs. King and Ducote have engaged
in similar conduct as their co-plaintiff, Mr. Sandoval."
The Plaintiffs seek an order quashing or modifying the subpoenas.
They argue that the information sought is not relevant to any claim
or defense actually asserted in the present action. They further
contend that even if certain banking transactions "with Uphold" are
relevant, the subpoenas as written (which would require the banks
to turn over all of Ducote's and King's banking records for the
past two years) are impermissibly "broad and intrusive."
Judge Moses agrees. He says, no fraud claims have been pleaded
against King or Ducote. Nor does the Defendant suggest that it has
any non-speculative basis, at present, for believing that either of
these plaintiffs attempted to cancel or reverse transfers from
their accounts to Uphold by claiming that they were "unauthorized."
As to these two plaintiffs, therefore, the subpoenas appear to
constitute a classic "fishing expedition" beyond the scope of Fed.
R. Civ. P. 26(b)(1). The fact that there is a confidentiality
stipulation in place among the parties to this action does not
expand the scope of discovery permitted under Rule 26(b)(1), which
applies to non-party as well as party discovery.
Consequently, the subpoenas addressed to Bank of America and Wells
Fargo Bank are quashed pursuant to Fed. R. Civ. P. 26(b)(2)(C)(iii)
and 45(d)(3). This ruling is without prejudice to the future
service of narrowly-tailored subpoenas to the Plaintiffs' banks
seeking relevant and proportional discovery.
III. General Pretrial Management
On a going-forward basis, Judge Moses cautioned the parties and the
counsel that:
1. All discovery must be initiated in time to be concluded by
the close of discovery set by the Court.
2. Future discovery applications, including letter-motions
requesting discovery conferences, must be made promptly after the
need for such an application arises and must comply with Local
Civil Rule 37.2 and Section 2(b) of Judge Moses's Individual
Practices. It is the Court's practice to decide discovery disputes
at the Rule 37.2 conference, based on the parties' letters, unless
a party requests or the Court requires more formal briefing. Absent
extraordinary circumstances, discovery applications made later than
30 days prior to the close of discovery may be denied as untimely.
3. For motions other than discovery motions, pre-motion
conferences are not required, but may be requested where counsel
believe that an informal conference with the Court may obviate the
need for a motion or narrow the issues.
4. Requests to adjourn a court conference or other court
proceeding (including a telephonic court conference) or to extend a
deadline must be made in writing and in compliance with Section
2(a) of Judge Moses's Individual Practices. Telephone requests for
adjournments or extensions will not be entertained.
5. In accordance with Section 1(d) of Judge Moses' Individual
Practices, letters and letter-motions are limited to four pages,
exclusive of attachments. Courtesy copies of letters and
letter-motions filed via ECF are required only if the filing
contains voluminous attachments. Courtesy copies should be
delivered promptly, should bear the ECF header generated at the
time of electronic filing, and should include tabs for the
attachments.
Teleconferences are held on the Court's AT&T line. If a
teleconference is scheduled, the parties are directed to call (888)
557-8511 and enter the access code 7746387 a few minutes before the
scheduled time. Videoconferences are held using the Court's
videoconferencing technology (Microsoft Teams) or (with the prior
approval of the Court) such alternative videoconferencing
technology as the parties agree upon and arrange. If the Court's
technology is used, the Court will provide the link and further
instructions in an email to the counsel closer to the date of the
conference. In person conferences are held in Courtroom 20A of the
Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street,
New York, New York.
Pursuant to Fed. R. Civ. P. 30(b)(3) and (b)(4), all depositions in
the action may be taken via telephone, videoconference, or other
remote means, and may be recorded by any reliable audio or
audiovisual means. The Order does not dispense with the
requirements set forth in Fed. R. Civ. P. 30(b)(5), including the
requirement that, unless the parties stipulate otherwise, the
deposition be "conducted before an officer appointed or designated
under Rule 28," and that the deponent be placed under oath by that
officer. For avoidance of doubt, a deposition will be deemed to
have been conducted "before" an officer so long as that officer
attends the deposition via the same remote means (e.g., telephone
conference call or video conference) used to connect all other
remote participants, and so long as all participants (including the
officer) can clearly hear and be heard by all other participants.
A full-text copy of the Court's June 8, 2022 Order is available at
https://tinyurl.com/3967485k from Leagle.com.
USA QR: Liang Suit Seeks Unpaid Minimum Wages Under FLSA, NYLL
--------------------------------------------------------------
KAIYUN LIANG and XIAOHAO FANG, individually and on behalf of all
others similarly situated v. USA QR CULTURE INDUSTRIAL DEVELOPMENT
LLC d/b/a HUTAOLI MUSIC & BAR, WEI YOU, and "JANE" YOU, Case No.
1:22-cv-04841 (S.D.N.Y., June 9, 2022) is a putative collective and
class action alleging violations of the Fair Labor Standards Act,
the New York Labor Law, and the New York Wage Theft Prevention Act
and any other cognizable cause of action established upon the facts
alleged herein, arising from the Defendants' various willful,
malicious, and unlawful employment policies, patterns and
practices.
According to the complaint, the Defendants have willfully,
maliciously, and intentionally committed widespread violations of
the FLSA and NYLL by engaging in a pattern and practice of failing
to pay their employees, including Plaintiffs, minimum wage for each
hour worked within the time limitations prescribed by the FLSA and
NYLL.
The Plaintiffs allege pursuant to the FLSA that they are entitled
to recover from the Defendants: (a) unpaid minimum wages; (b)
liquidated damages; (c) prejudgment and post-judgment interest; and
(d) attorneys' fees and costs.[BN]
The Plaintiffs are represented by:
Alex Rissmiller, Esq.
RISSMILLER PLLC
5 Pennsylvania Plaza, 19th Floor
New York, NY 10001
Telephone: (646) 664-1412
E-mail: arissmiller@rissmiller.com
- and -
Matthew L. Berman, Esq.
VALLI KANE & VAGNINI LLP
600 Old Country Road, Suite 519
Garden City, NY 11530
Telephone: (516) 203-7180
Facsimile: (516) 706-0248
E-mail: mberman@vkvlawyers.com
VALUE SERVICE: Taveras Seeks Minimum Wages & OT Wages Under FLSA
----------------------------------------------------------------
Tristan Taveras, on behalf of himself and others similarly situated
in the proposed FLSA Collective Action v. Value Service & Repair
Corp., Value Service Corp., Yuval, Inc., Steven Bach, and Susan
Bach, Case No. 1:22-cv-03416 (E.D.N.Y., June 9, 2022) seeks
injunctive and declaratory relief and to recover unpaid minimum
wages, overtime wages, spread-of-hours, liquidated and statutory
damages, pre- and post-judgment interest, and attorneys' fees and
costs pursuant to the Fair Labor Standards Act, the New York State
Labor Law, and their supporting New York State Department of Labor
regulations.
Plaintiff Taveras worked also as a general worker at the
Defendants' used car business ("Yuval"). Taveras was employed as a
non-managerial employee at Value Service from on or around January
2018 to through and including March 2020. Plaintiff Taveras was
employed as a non-managerial employee at Yuval from on around
February 2021 to through and including May 2022.
The Defendants own, operate and/or control the repair service
company (i.e., Value Service); and used car business (i.e., Yuval)
where Plaintiff worked.
The Individual Defendants possess operational control over the
Corporate Defendants, possesses an ownership interest in the
Corporate Defendants, and control significant functions of the
Corporate Defendants.[BN]
The Plaintiff is represented by:
Joshua Levin-Epstein, Esq.
Jason Mizrahi, Esq.
LEVIN-EPSTEIN & ASSOCIATES, P.C.
60 East 42 nd Street, Suite 4700
New York, NY 10165
Telephone: (212) 792-0046
E-mail: Joshua@levinepstein.com
VENTURE HOME: Court Grants Bid to Compel Arbitration in James Suit
------------------------------------------------------------------
In the case, KURT JAMES, JULIE STEWART, and ZAKER AHMED, on behalf
of themselves and all others similarly situated, Plaintiffs v.
VENTURE HOME SOLAR, LLC, and VENTURE SOLAR COMMERCIAL, LLC,
Defendants, Civil Action No. 3:21-CV-1306 (CSH) (D. Conn.), Judge
Charles S. Haight, Jr., of the U.S. District Court for the District
of Connecticut issued an order:
a. granting in part and denying as moot in part the
Defendants' Motion to Compel Arbitration;
b. staying the action; and
c. denying as moot the Defendants' alternative Motion to
Dismiss the action.
I. Background
The lawsuit is a purported class action arising out of the quest
for solar energy, a pursuit (together with wind energy) generated
by the global perception of fossil fuels as a cause of climate
change.
The individual Plaintiffs own residential homes. The affiliated
Defendants market and install electricity-producing solar panel
systems on residential properties, and did so at the Plaintiffs'
homes.
The Plaintiffs allege that the Defendants' solar panel systems did
not and could not produce the substantial savings in their
electricity usage bills that the Defendants had promised would be
achieved. The Plaintiffs claim "compensatory, restitutionary,
punitive, and treble damages."
The individual Plaintiffs, residential home owners, sue on their
own behalf, and also purport to sue on behalf of a Class of "all
residential persons or commercial entities residing or located in
Connecticut, New York, New Jersey, Rhode Island, Massachusetts, and
New Hampshire, who leased or purchased a solar panel system
marketed by Defendants and who did not receive the offset on their
electricity usage charges promised by the the Defendants."
The theory of the Plaintiffs' case, spelled out in the First Claim
of the Complaint, alleging violation of the Connecticut Unfair
Trade Practices Act ("CUTPA"), Conn. Gen. Stat. Section 42-110a, et
seq., is that Venture Home "falsely promised" them that "by
installing and using a solar panel system marketed by the
Defendants their electricity usage bills would be fully or
substantially offset and they would pay little or no money for
electricity usage to their incumbent electricity provider." The
Plaintiffs "were induced to install and use the Defendants' solar
panel systems because of the promise that their electricity usage
bills would be fully or substantially offset and they would pay
little or no money for electricity usage." They "have not received
the offset in electricity usage costs as promised by the
Defendants," and have "suffered substantial damages" in
consequence.
In addition to the First Claim under CUTPA, the Complaint also
asserts claims for negligent misrepresentation (Second Claim) and
for unjust enrichment (Third Claim).
The Defendants now move to compel the Plaintiffs to submit their
claims against them to arbitration, pursuant to one or another of
the contracts between or involving the parties. One of the
Plaintiffs, Kurt James, concedes his obligation to submit his
claims to arbitration. The other two Plaintiffs, Julie Stewart and
Zaker Ahmed, resist the Defendants' motion to compel them to do
so.
Judge Haight's Ruling resolves the contested aspects of the
Defendants' motion.
II. Discussion
Further pertinent facts are found in a sworn declaration by Alex
Yackery, a member of the Venture LLCs.
A. The Contracts Involved
According to Yackery, "Venture Home installs solar panel systems
onto residential properties." "The power generated from the solar
panel systems is then used to power the residence, thereby
providing a clean energy source, and offsetting the property
owner's energy bill from traditional energy services." At times,
Venture Home "directly contracts with a residential client." On
those occasions, "the client enters into a Solar Electric
Installation Contract with Venture." At other times, "Venture Home
also contracts with third-party solar companies to install solar
panels onto the residences of the customers of these third-party
companies."
In the case at bar, Plaintiff Kurt James entered into the former
type of arrangement on Jan. 29, 2020. He thus contracted directly
with Venture Homes for the installation of a solar panel system at
his residence.
Plaintiffs Julie Stewart and Zaker Ahmed followed the second path,
entering contracts with "third-party solar companies" with which
Venture had contracted to install solar panels. On Jan. 21, 2020,
Stewart entered into a contract with a company called Sunnova
Energy Corp. for the installation of solar panels on her residence.
Stewart's contract with Sunnova listed Venture Home as the
"Subcontractor/Installer" and recited that "Venture Home Solar, LLC
and Sunnova will install a 6.650-kW solar system on your home." The
contract further specified that "Venture Home Solar, LLC will
complete the design and engineering drawings for your system, and
Sunnova will review the final design to ensure it meets our high
quality standards."
Plaintiff Zaker Ahmed entered into a contract with Sun Power
Capital LLC on Nov. 10, 2017, for the installation of solar panels
on his residence. That contract listed Venture as the
"Dealer/Installer" of the solar panel system.
Under these circumstances, Yackery declares that Venture had and
"has no direct contractual relationship" with Plaintiff Julie
Stewart or with Plaintiff Zaker Ahmed.
B. The Arbitration Clauses
Each of the three existing contracts contains a broadly stated
arbitration clause. The arbitration clauses in the contracts are
reproduced in full in the parties' submissions on the present
motion.
C. The Question Presented on the Motion
The basic question presented by the Venture Defendants' motion is
whether the Individual Plaintiffs should be compelled to arbitrate
their claims against Venture that arise out of these three
contracts. Certain Plaintiffs oppose that proposition, but only
with respect to two of the three contracts involved.
The dispute presented by the motion is whether the other two
Plaintiffs -- Stewart and Ahmed -- should be compelled to arbitrate
their claims against Venture. The case for these Plaintiffs is that
since they contracted with non-parties (Sunnova and Sun Power,
respectively), the arbitration clauses contained in those contracts
have nothing to do with Stewart's and Ahmed's claims in the
litigation against Venture, and Venture cannot compel them to
arbitrate those claims.
The case for Venture is that while arbitration "is a creature of
contract" and "a party therefore cannot be required to submit to
arbitration any dispute which it has not agreed to submit,"
nevertheless the Second Circuit has "recognized a number of common
law principles of contract law that may allow non-signatories to
enforce an arbitration agreement, including equitable estoppel,"
citing Doe v. Trump Corp., 6 F.4th 400, 412 (2d Cir.
2021)(citations omitted).
D. Equitable Estoppel and Second Circuit Precedent
In Doe v. Trump Corporation, decided 10 months ago, the Second
Circuit undertook a comprehensive review of "the equitable estoppel
inquiry as governed by Second Circuit precedent," in cases deciding
whether to compel arbitration. Judge Sack's opinion explains the
decision in Doe, and also instructs district courts on how to
resolve other comparable cases. As a recipient of that instruction,
Judge Haight pays close attention to the Second Circuit's reasoning
in Doe.
The individual plaintiffs in Doe invested in a non-party entity
called ACN Opportunity, LLC, a marketing company which offered
various business opportunities to investors. The defendants in Doe
were the Trump Corporation and individuals: Donald J. Trump and his
three adult children, Donald J. Trump, Jr., Eric Trump, and Ivanka
Trump (collectively "the Trump defendants"). According to the
Plaintiffs' complaint, their recruitment by ACN into business
relationships did not work to their advantage. They alleged that
"none of them succeeded in making a profit from the relationship or
even earning back the money that they had invested in ACN." The Doe
plaintiffs' contracts with non-party ACN contained arbitration
clauses.
The district court denied the Trump defendants' motion to compel
arbitration; and the Second Circuit affirmed. The Second Circuit's
reasoning in Doe explains why the court denied the Trump
defendants' motion to compel arbitration of the ACN
investor-plaintiffs' claims against them. The Trump defendants
sought to enforce, on their behalf, an arbitration clause contained
in contracts ("the IBO agreements") between ACN and the plaintiffs.
Rejecting that effort, the Second Circuit said that there was no
corporate relationship between the defendants and ACN of which the
plaintiffs had knowledge, the defendants do not own or control ACN,
and the defendants are not named in the IBO agreements between ACN
and the plaintiffs.
E. Resolution of The Case
Judge Haight finds that the Second Circuit's decision in Doe, and
the other cases cited, lead to the conclusion that the claims of
Plaintiffs Julie Stewart and Zaker Ahmed against Defendant Venture
Home must be submitted to arbitration. That is so, even though
Venture Home, which moves to compel arbitration, is not a party to
the underlying solar panel system contracts containing arbitration
clauses, which the Plaintiffs entered into with other entities. In
the circumstances presented by the case, the Plaintiffs are
equitably estopped from avoiding arbitration of their claims
against Venture Home.
The Second Circuit precedents identify two elements which mandate
arbitration of claims by or against non-signatories of arbitration
agreements. These are the intertwining of contractual obligations;
and a relationship between signatory and non-signatory parties
whose nature justifies the invocation of equitable estoppel as a
bar to avoiding arbitration of disputes between them.
Both elements are present in the case at bar, Judge Haight holds.
First, the solar panel system contracts between these Plaintiffs
and the non-party entities (Sunnova or Sun Power) specifically
identified non-signatory Venture Home as the designer and installer
of the systems. Second, the specific identification of Venture Home
in Plaintiffs' contracts with Sunnova or Sun Power as the
"subcontractor," "dealer" or "installer" of the solar panel
systems, leads readily to the inference that in signing those
contracts, the Plaintiffs "had knowledge of, and consented to, the
extension of their agreement to arbitrate to the non-signatories."
Judge Haight concludes that the case at bar mirrors the elements
which the cited Second Circuit cases hold mandate the application
of the equitable estoppel principle. The Second Circuit decisions
rejecting equitable estoppel do so because of entirely different
circumstances, not present in the case. He concludes that these
Plaintiffs are equitably estopped from avoiding Venture Home's
demand for arbitration of the Plaintiffs' claims against it.
IV. Conclusion
For the foregoing reasons, Judge Haight grants the Defendants'
Motion to Compel Arbitration as to Plaintiff Stewart. Those parties
are directed to proceed to arbitration in the manner provided in
the arbitration agreement between Plaintiff Stewart and non-party
Sunnova.
Judge Haight also grants the Defendants' Motion to Compel
Arbitration as to Plaintiff Ahmed. Those parties are directed to
proceed to arbitration in the manner provided in the arbitration
agreement between Plaintiff Ahmed and non-party Sun Power.
Judge Haight denies as moot the Defendants' Motion to Compel
Arbitration as to Plaintiff James, who has conceded through counsel
that his claims against the Defendants are subject to arbitration
in the manner provided in the arbitration agreement between him and
Venture. Those parties are directed to proceed to arbitration
accordingly.
The action between the Plaintiffs and the Defendants is stayed as
to all parties, pending completion of the arbitrations.
Judge Haight denies as moot the Defendants' alternative Motion to
Dismiss the action.
A full-text copy of the Court's June 8, 2022 Ruling is available at
https://tinyurl.com/4jcpvfa4 from Leagle.com.
VOLKSWAGEN GROUP: Scheduling Order Amended in Connelly Suit
-----------------------------------------------------------
In the class action lawsuit captioned as BRIAN CONNELLY et al., v.
VOLKSWAGEN GROUP OF AMERICA, INC. et al., Case No.
1:19-cv-01487-RDA-IDD (E.D. Va.), the Hon. Judge Ivan D. Davis
entered an order granting in part and denying in part the Parties'
renewed joint motion to amend the discovery order entered May 17,
2022 and scheduling order entered May 31, 2022 to provide adequate
time in this complex putative class action to conduct fact and
expert discovery and to brief class certification and summary
judgment.
The Court further ordered that the Scheduling Order's deadlines
shall be amended as follows:
-- The Plaintiffs' expert disclosures: Dec. 19, 2022
-- The Defendants' expert disclosures: Jan. 24, 2023
-- The Plaintiffs' rebuttal expert Feb. 8, 2023
disclosures:
-- Close of discovery: March 10, 2023
-- Deadline for Plaintiffs to file Aug. 12, 2023
motion for class certification:
-- The Defendants' opposition to Oct. 4, 2023
class certification:
-- The Plaintiffs' reply in support Nov. 3, 2023
of to class certification:
Volkswagen Group of America, Inc., is the North American
operational headquarters, and subsidiary of the Volkswagen Group of
automobile companies of Germany.
A copy of the Court's orderdated June 14, 2022 is available from
PacerMonitor.com at https://bit.ly/3xAGuAa at no extra charge.[CC]
VTECH HEALTHCARE: Conditional Status of FLSA Collective Sought
--------------------------------------------------------------
In the class action lawsuit captioned as SHAVADA WHEELER,
Individually and for Others Similarly Situated, v. VTECH
HEALTHCARE, INC., Case No. 1:22-cv-00561-PTG-IDD (E.D. Va.), the
Plaintiff asks the Court to enter an order approving conditional
certification of this matter as an Fair Labor Standards Act (FLSA)
collective action pursuant to 29 U.S.C. section 216(b).
The Plaintiff seeks approval to send notice to putative collective
members via U.S. Mail, email and text, and further have Defendant
post notice.
The Plaintiff moves for conditional certification and notice to be
sent to:
"All persons employed by vTech Healthcare, Inc., who were
paid on an hourly basis and whose overtime rate did not
include Nontaxable Per Diem compensation at any time since
three years prior to filing the Complaint."
vTech delivers healthcare staffing solution.
A copy of the Plaintiff's motion to certify class dated June 13,
2022 is available from PacerMonitor.com at https://bit.ly/3zwmukG
at no extra charge.[CC]
The Plaintiff is represented by:
Zev H. Antell, Esq.
Craig J. Curwood, Esq.
Paul Falabella, Esq.
BUTLER CURWOOD, PLC
140 Virginia Street, Suite 302
Richmond, VA 23219
Telephone: (804) 648-4848
Facsimile: (804) 237-0413
E-mail: craig@butlercurwood.com
zev@butlercurwood.com
paul@butlercurwood.com
- and -
Philip Bohrer, Esq.
Scott E. Brady, Esq.
BOHRER BRADY , LLC
8712 Jefferson Highway, Suite B
Baton Rouge, LA 70809
Telephone: (225) 925-5297
Facsimile: (225) 231-7000
E-mail: phil@bohrerbrady.com
scottt@bohrerbrady.com
VVF INTERVEST: Parties Seek to Conditionally Certify Class
----------------------------------------------------------
In the class action lawsuit captioned as MARLON ROBERTSON,
individually, and on behalf of all others similarly situated, v.
VVF INTERVEST, LLC, VVF KANSAS, LLC, & VVF KANSAS SERVICES, LLC,
Case No. 2:21-cv-02507-EFM-KGG (D. Kan.), the Parties ask the Court
to enter an order:
1. conditionally certifying the class for the purpose of
sending notice:
"Current and former non-exempt hourly employees who were
employed by VVF at its Kansas facility any time from
November 2, 2018 through the present;"
2. approving the Parties plan to provide notice of the
collective action;
3. approving the Parties' Notice to the Class; and
4. tolling the statute of limitations during the notice
period.
On November 2, 2021, the Plaintiff Robertson filed a complaint,
collectively and as a class action, against the Defendants alleging
the underpayment of straight time and overtime compensation due and
owing to all hourly, non-exempt, workers Defendants employed within
the United States at its multiple facilities in Kansas, Illinois,
and Ohio in violation of the Fair Labor Standards Act ("FLSA") and
state law.
First, the Plaintiff alleged that Defendants imposed a rounding
policy, practice, and/or procedure, applicable at each of its
subsidiary companies throughout the United States, in which hourly,
non-exempt, employees' clock-in and clock-out times are rounded up
to the scheduled shift start time or rounded down to scheduled
shift end time in favor of Defendants.
Second, Plaintiff alleged that Defendants manipulated the FLSA
workweek to avoid the payment of overtime compensation to Plaintiff
and the putative class members.
Finally, Plaintiff alleges that the Defendants unlawfully deduct
compensable time from Plaintiff and the putative class members'
weekly hours worked, resulting in a failure to pay all straight
time and overtime compensation due and owing.
Specifically, the Plaintiff and the putative class members are
automatically deducted each shift for a 30-minute lunch break
regardless of whether they are actually able to take the break. The
Defendants deny all of Plaintiff's material allegations.
On March 10, 2022, Plaintiff filed a Motion for FLSA Conditional
Certification Pursuant to 29 U.S.C section 216(b) for the following
collectives:
-- Unlawful Rounding Policy Collective
"All persons currently or formerly employed by the
Defendants in hourly positions who worked and clocked in
and out on an automated timeclock at any time from November
2, 2018 to the present;"
-- Unlawful Workweek Manipulation Collective
"All persons currently or formerly employed by the
Defendants in hourly positions who worked a shift that
began on a Saturday and ended on a Sunday during any
workweek from November 2, 2018 to the present;"
-- Unlawful Deduction Policy Collective
"All persons currently or formerly employed by the
Defendants in hourly positions whose hours worked were
automatically deducted for lunch breaks at any time from
November 2, 2018 to the present."
A copy of the Parties' motion dated June 13, 2022 is available from
PacerMonitor.com at https://bit.ly/3Qn5MKo at no extra charge.[CC]
The Plaintiff is represented by:
Matthew E. Osman, Esq.
David S. Kim, Esq.
OSMAN & SMAY LLC
7111 W. 151 st St., No. 316
Overland Park, Kansas 66223
Telephone: (913) 667-9243
Facsimile: (866) 470-9243
E-mail: mosman@workerwagerights.com
dkim@workerwageright.com
- and -
Patricia A. Konopka, Esq.
Emily N. K. Monroe, Esq.
STINSON LLP
1201 Walnut Street, Suite 2900
Kansas City, MO 64106-2150
Telephone: (816) 842-8600
Facsimile: (816) 691-3495
E-mail: pat.konopka@stinson.com
emily.monroe@stinson.com
VXI GLOBAL: Colleton Seeks to Recover Penalties Under PAGA
----------------------------------------------------------
SHERRY COLLETON, on behalf of the general public as private
attorney general, v. VXI GLOBAL SOLUTIONS LLC; a California Limited
Liability Company, and DOES 1-50, inclusive, Case No. 22STCV18978
(Cal. Super., Los Angeles Cty., June 9, 2022) seeks to recover
penalties under the Private Attorneys General Act of 2004 (PAGA),
Cal. Labor Code.
According to the complaint, the Defendants violated various
provisions of the California Labor Code. The Defendants implemented
policies and practices which led to unpaid wages resulting from
Defendant's:
-- (a) failure to accurately pay wages including overtime
wages,
-- (b) failure to provide meal periods for every work period
exceeding more than 10 hours per day and failure to pay
an additional hour's of pay or accurately pay an
additional hour's of pay in lieu of providing a meal
period; and
-- (c) failure to provide rest breaks for every four hours or
major fraction thereof worked and failure to pay an
additional hour's of pay or accurately pay an additional
hour's of pay in lieu of providing a rest period.[BN]
The Plaintiff is represented by:
James R. Hawkins, Esq.
Gregory Mauro, Esq.
Michael Calvo, Esq.
Ava Issary, Esq.
Lauren Falk, Esq.
JAMES HAWKINS APLC
9880 Research Drive, Suite 200
Irvine, CA 92618
Telephone: (949) 387-7200
Facsimile: (949) 387-6676
E-mail: James@j ameshawkinsaplc.com
Greg@jameshawkinsaplc.com
Michael@jameshawkinsaplc.com
Ava@jameshawkinsaplc.com
Lauren@jameshawkinsaplc.com
WASTE MANAGEMENT: Sued Over Artificially Inflated Senior Notes
--------------------------------------------------------------
UNITED INDUSTRIAL WORKERS PENSION PLAN, Individually and on Behalf
of All Others Similarly Situated, v. WASTE MANAGEMENT, INC., JAMES
C. FISH, JR., DEVINA A. RANKIN, JOHN J. MORRIS, and LESLIE K. NAGY,
Case No. 1:22-cv-04838 (S.D.N.Y., June 9, 2022) is a securities
class action on behalf of all purchasers of certain WM redeemable
senior notes between February 13, 2020 and June 23, 2020, both
dates inclusive, seeking to pursue remedies under sections 10(b)
and 20(a) of the Securities Exchange Act of 1934, and SEC Rule
10b-promulgated thereunder, 17 C.F.R. section 240.10b-5, against WM
and certain of the Company's senior officers and directors.
The case arises from the defendants' materially false and
misleading statements regarding the regulatory antitrust review of
the merger between WM and ADS, which caused the prices of the notes
to trade at artificially inflated levels during the Class Period.
The Defendant is a waste management and environmental services
company. WM shares trade on the NYSE under the ticker symbol "WM."
WM is the largest waste management and environmental services
company in the United States. Prior to its acquisition by WM, ADS
was the fourth-largest waste management and environmental services
company in the United States. Although they did not overlap in
certain areas, WM and ADS competed against each other in 57
geographical markets covering 10 states in the eastern half of the
United States, including Florida, where ADS was headquartered.
Small container commercial waste (SCCW) collection is the business
of collecting municipal solid waste ("MSW") from commercial and
industrial accounts, usually in small containers (i.e., dumpsters
with one to ten cubic yards capacity), and transporting or hauling
that waste to a disposal site.
Typical SCCW collection customers include office and apartment
buildings and retail stores and restaurants. Commercial customers
typically generate substantially more MSW than a residential
customer. To handle this high volume of waste efficiently, haulers
often provide commercial customers with dumpsters for storing the
waste. Haulers organize their commercial accounts into routes,
using a single driver/operator who collects and transports the MSW
in front-end load trucks ("FEL") to a disposal facility, such as a
transfer station, landfill, or incinerator, where the FEL truck
operator empties the waste.[BN]
The Plaintiff is represented by:
Samuel H. Rudman, Esq.
Brian E. Cochran, Esq.
ROBBINS GELLER RUDMAN
& DOWD LLP
58 South Service Road, Suite 200
Melville, NY 11747
Telephone: (631) 367-7100
Facsimile: (631) 367-1173
E-mail: srudman@rgrdlaw.com
bcochran@rgrdlaw.com
- and -
David Harrison, Esq.
Andrea Farah, Esq.
Luke Goveas, Esq.
LOWEY DANNENBERG, P.C.
44 South Broadway, Suite 1100
White Plains, NY 10601
Telephone: 914/997-0500
E-mail: dharrison@lowey
afarah@lowey.com
lgoveas@lowey.com
WHITE CUBE INC: Jackson Files ADA Suit in S.D. New York
-------------------------------------------------------
A class action lawsuit has been filed against White Cube Inc. The
case is styled as Sylinia Jackson, on behalf of herself and all
other persons similarly situated v. White Cube Inc., Case No.
1:22-cv-04755 (S.D.N.Y., June 7, 2022).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
White Cube -- https://whitecube.com/ -- is one of the world's
leading contemporary art galleries.[BN]
The Plaintiff is represented by:
Jeffrey Michael Gottlieb, Esq.
Michael A. LaBollita, Esq.
150 E. 18 St., Suite PHR
New York, NY 10003
Phone: (212) 228-9795
Fax: (212) 982-6284
Email: nyjg@aol.com
michael@gottlieb.legal
WHOLESOME SPIRITS: Martinez Files ADA Suit in E.D. New York
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A class action lawsuit has been filed against Wholesome Spirits
Inc. The case is styled as Pedro Martinez, individually and as the
representative of a class of similarly situated persons v.
Wholesome Spirits Inc., Case No. 1:22-cv-03349-WFK-PK (E.D.N.Y.,
June 7, 2022).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Wholesome Spirit, Inc. is located in New York City and is part of
the Beverage Manufacturing Industry.[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
WILLAMETTE VALLEY: Kelley Suit Seeks to Modify Scheduling Order
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In the class action lawsuit captioned as CHARLENE KELLEY,
Individually and on Behalf of the Class Members, v. WILLAMETTE
VALLEY MEDICAL CENTER, LLC, Case No. 3:20-cv-02196-SB (D. Or.), the
Plaintiff asks the Court to enter an order granting her opposed
motion to modify the scheduling order.
Ms. Kelley contends that Court should grant her motion and modify
the current Scheduling Order deadlines to vacate the current Rule
23 class certification briefing schedule and reset that deadline to
align with any deadline for Defendants to move to decertify the
Fair Labor Standards Act (FLSA) collective.
On December 18, 2020, the Plaintiff filed her Original Class Action
Complaint, asserting claims under Oregon wage and hour laws and the
FLSA. The Court adopted a Case Management Schedule on April 5,
2021. The Parties jointly requested a prior extension on September
14, 2021, citing the recent surge of COVID-19 cases in Oregon that
arose at that time.
The Court granted the Parties' request and set Plaintiff's deadline
to move for Rule 23 class certification on June 27, 2022. The Court
further noted it would "reset other case management deadlines after
resolution of the motion for class certification." Thus, currently,
there is no discovery deadline or trial date.
Willamette Valley Medical Center is a for-profit Level III acute
care hospital in McMinnville, Oregon, United States, adjacent to
the McMinnville Airport on Oregon Route 18.
A copy of the Plaintiff's motion dated June 14, 2022 is available
from PacerMonitor.com at https://bit.ly/3aRlzko at no extra
charge.[CC]
The Plaintiff is represented by:
Ori Edelstein, Esq.
Carolyn H. Cottrell, Esq.
Eugene Zinovyev, Esq.
SCHNEIDER WALLACE
COTTRELL KONECKY LLP
2000 Powell Street, Suite 1400
Emeryville, CA 94608
Telephone: (415) 421-7100
Facsimile: (415) 421-7105
E-mail: ccottrell@schneiderwallace.com
oedelstein@schneiderwallace.com
ezinovyev@schneiderwallace.com
- and -
Jordyn D. Rystrom Emmert, Esq.
Taylor A. Jones, Esq.
SCHNEIDER WALLACE
COTTRELL KONECKY LLP
3700 Buffalo Speedway, Suite 960
Houston, TX 77098
Telephone: (713) 338-2560
Facsimile: (415) 421-7105
E-mail: jemmert@schneiderwallace.com
tajones@schneiderwallace.com
- and -
Jennifer R. Murray, Esq.
TERRELL MARSHALL LAW GROUP PLLC
936 North 34th Street, Suite 300
Seattle, Washington 98103
Telephone: (206) 816-6603
Facsimile: (206) 319-5450
E-mail: jmurray@terrellmarshall.com
WILSON LOGISTICS: Seeks Extension to File Class Cert. Response
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In the class action lawsuit captioned as JOSEPH MOORE, on behalf of
himself and all other similarly situated persons, v. WILSON
LOGISTICS, INC., Case No. 6:21-cv-03212-BP (W.D. Mo.), the
Defendant asks the Court to enter an order granting it an extension
of time to June 30, 2022, within which to respond to Plaintiff's
motion for class certification and conditional certification as a
collective action.
The Plaintiff filed this action on August 12, 2021, raising minimum
wage claims under the Fair Labor Standards Act (FLSA), the Missouri
Minimum Wage Law (MMWL) and common law.
The Court entered its Scheduling Order on November 1, 2021. The
Scheduling Order provides for two phases of discovery -- Phase I
for discovery of all issues related to conditional/class
certification, and Phase II for discovery relating to alleged
damages and completion of any other merits issues.
The Court also set a deadline of April 15, 2022, to complete Phase
I discovery and to file any motion for conditional/class
certification. The Court granted the parties' Joint Motion to move
this deadline to May 16, 2022.
The Plaintiff filed his Motion for Class Certification and
Conditional Certification as a Collective Action on May 16, 2022.
Pursuant to the Court's Scheduling Order, Defendant's opposition to
the Motion is due on June 15, 2022.
Wilson Logistics is a family-owned and operated organization with a
diverse portfolio of solutions to solve clients' logistical needs.
A copy of the Defendant's motion dated June 14, 2022 is available
from PacerMonitor.com at https://bit.ly/3b3Ty9u at no extra
charge.[CC]
The Defendant is represented by:
James C. Sullivan, Esq.
FISHER & PHILLIPS LLP
4900 Main Street, Suite 650
Kansas City, MO 64112
Telephone: (816) 842-8770
Facsimile: (816) 842-8767
E-mail: jsullivan@fisherphillips.com
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S U B S C R I P T I O N I N F O R M A T I O N
Class Action Reporter is a daily newsletter, co-published by
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Toledo, Christopher G. Patalinghug, and Peter A. Chapman, Editors.
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