/raid1/www/Hosts/bankrupt/CAR_Public/220713.mbx
C L A S S A C T I O N R E P O R T E R
Wednesday, July 13, 2022, Vol. 24, No. 133
Headlines
118 HARLEM: Fails to Pay Overtime Pay, Poblano Suit Alleges
3M COMPANY: AFFF Products Can Cause Cancer, Kiess Suit Alleges
3M COMPANY: Williams Suit Claims Complications From AFFF Products
ACCENTURE PLC: Faces Consumers' Suit Over Data Breach
ACUITY BRANDS: Court OKs Settlement in Securities Litigation
AEROVIRONMENT INC: Discovery Ongoing in California Class Suit
ALLSUP EMPLOYMENT: Court Denies Bid to Certify Class in Barnes Suit
ARC ONE: Quinonez Sues Over Security Guards' Unpaid Wages
ARCON CREDIT: Ayala Files FDCPA Suit in D. New Jersey
BED BATH & BEYOND: Settlement in Consolidated Suit Gets Final Nod
BED BATH & BEYOND: Settlement in Vitiello Suit Wins Final Approval
BLACKBERRY LTD: Hearing on Final OK of Settlement Set for Sept. 29
BORSHEIM JEWELRY: Luis Files ADA Suit in S.D. New York
BP EXPLORATION: Cook Expert Testimony Excluded From Harrison Suit
BRAVADA INTERNATIONAL: Velazquez Files ADA Suit in S.D. New York
CALDERA + LAB: Cordero Files ADA Suit in S.D. New York
CELLCO PARTNERSHIP: Can't Compel Arbitration in MacClelland Suit
CG MEDICAL: Fails to Pay Proper Wages, Tannreuther Suit Alleges
CONDE NAST: Fontanez Files ADA Suit in S.D. New York
COROS WEARABLES: Cordero Files ADA Suit in S.D. New York
CUSTOM KRAFT: Flores FLSA Suit Removed to S.D. Florida
DAVOS BRANDS: Fontanez Files ADA Suit in S.D. New York
DEERE & CO: Monopolizes Repair Service Market, Perry Suit Alleges
ELYMAR RESTAURANT: Fails to Pay Proper Wages, De La Verriere Says
F.D. THOMAS: Cardenas Files Suit in Cal. Super. Ct.
FLAGSTAR BANCORP: Fails to Timely Detect Data Breach, Suit Alleges
FRIAR TUX SHOP: Zinnamon Files ADA Suit in S.D. New York
FUNKO INC: Fletcher Sues Over Stock's Artificially Inflated Prices
GENTLEMAN'S GURU: Zinnamon Files ADA Suit in S.D. New York
GOOGLE LLC: Violates Equal Pay Act, Haggan Class Action Suit Says
GQ SOLUTIONS: Faces Ulery Suit Over Illegal Telemarketing Calls
HAIN CELESTIAL: Green Sues Over Earth's Best Infant Formulas' Label
HEALTHNET OF CALIFORNIA: Faces Ahchong Wage-and-Hour Suit in Cal.
HERALD EAST: Zinnamon Files ADA Suit in S.D. New York
HOME DEPOT: Faces Mathews Class Suit Over Breach of Contract
HORNBLOWER CRUISES: Vanantwerp Seeks to Recover Cooks' Unpaid Wages
HOST INTERNATIONAL: Schroeder Wage-and-Hour Suit Goes to C.D. Cal.
IDOLOGY INC: Dover Suit Removed to N.D. Illinois
INOTIV INC: Bernstein Liebhard Reminds of August 22 Deadline
J.M. SMUCKER: Peanut Butter Contaminated With Salmonella, Suit Says
JAXON LANE INC: Cordero Files ADA Suit in S.D. New York
JET DELIVERY: Lynch Files Suit in Cal. Super. Ct.
JK&T WINGS: Fails to Provide Proper OT Wages, Simpson Claims
KENNETH COLE: Lawal Files ADA Suit in S.D. New York
LIFE SPECTACULAR: Cordero Files ADA Suit in S.D. New York
MARYLAND: Gibson Sues Over Preservation of Voting Fraud Evidence
MEGAN RING: Hardy Files Suit in D. Colorado
MORRIS NATIONAL: Cordero Files ADA Suit in S.D. New York
NORTHSIDE ISD: Bid for Summary Judgment in Lartigue Suit Denied
PACCAR INC: Wise Seeks Unpaid Overtime Wages for Production Staff
POLAR ELECTRO: Cordero Files ADA Suit in S.D. New York
PORTABLE THERAPEUTIX: Cordero Files ADA Suit in S.D. New York
REYNOLDS CONSUMER: Gudgel Sues Over Trash Bags' Recyclable Label
SCHELL & KAMPETER: Navarro FCRA Suit Removed to E.D. California
SOCLEAN INC: CPAP Cleaning Device Emits Ozone, Cohen Suit Claims
SOCLEAN INC: Perun Sues Over Mislabeled CPAP Sanitizing Machines
SOCLEAN INC: Smith Sues Over Mislabeled CPAP Sanitizing Machines
STATE FARM: Court Denies Bid to Amend Dec. 2 Order in Manrique Suit
STATE FARM: Court Denies Bid to Dismiss Williams' 1st Amended Suit
SUNSET STRIP: Smith Sues Over Exotic Dancers' Unpaid Minimum Wages
VELODYNE LIDAR: Court Narrows Claims in Moradpour Securities Suit
*********
118 HARLEM: Fails to Pay Overtime Pay, Poblano Suit Alleges
-----------------------------------------------------------
ANGEL CUSTODIO POBLANO MENDOZA, individually and on behalf of
others similarly situated, Plaintiff v. 118 HARLEM BURGER CO., LLC
(d/b/a HARLEM BURGER CO); and UYANIK ALPER, Defendants, Case No.
1:22-cv-05716 (S.D.N.Y., July 5, 2022) is an action against the
Defendant's failure to pay the Plaintiff and the class overtime
compensation for hours worked in excess of 40 hours per week.
Plaintiff Poblano was employed by the Defendants as cook.
118 HARLEM BURGER CO., LLC owns, operates, or controls an American
Restaurant, located New York, NY under the name "Harlem Burger
Co.".
The Plaintiff is represented by:
Catalina Sojo, Esq.
CSM LEGAL, P.C.
60 East 42nd Street, Suite 4510
New York, NY 10165
Telephone: (212) 317-1200
Facsimile: (212) 317-1620
3M COMPANY: AFFF Products Can Cause Cancer, Kiess Suit Alleges
--------------------------------------------------------------
BOBBY KIESS, individually and on behalf of all others similarly
situated, Plaintiff v. 3M COMPANY (f/k/a Minnesota Mining and
Manufacturing Company); ACG CHEMICALS AMERICAS INC.; AMEREX
CORPORATION; ARCHROMA U.S. INC.; ARKEMA, INC.; BUCKEYE FIRE
EQUIPMENT COMPANY; CARRIER GLOBAL CORPORATION; CHEMDESIGN PRODUCTS,
INC.; CHEMGUARD, INC.; CHEMICALS, INC.; CHEMOURS COMPANY FC, LLC;
CHUBB FIRE, LTD; CLARIANT CORP.; CORTEVA, INC.; DEEPWATER
CHEMICALS, INC.; DU PONT DE NEMOURS INC. (f/k/a DOWDUPONT INC.);
DYNAX CORPORATION; E.I. DU PONT DE NEMOURS AND COMPANY;
KIDDE-FENWAL, INC.; KIDDE PLC; NATION FORD CHEMICAL COMPANY;
NATIONAL FOAM, INC.; THE CHEMOURS COMPANY; TYCO FIRE PRODUCTS LP,
as successor-in-interest to The Ansul Company; UNITED TECHNOLOGIES
CORPORATION; UTC FIRE & SECURITY AMERICAS CORPORATION, INC. (f/k/a
GE Interlogix, Inc.), Defendants, Case No. 2:22-cv-02131-RMG
(D.S.C., July 5, 2022) is a class action against the Defendants for
negligence, battery, inadequate warning, design defect, strict
liability, fraudulent concealment, breach of express and implied
warranties, and wantonness.
The case arises from severe personal injuries sustained by the
Plaintiff as a result of his exposure to the Defendants' aqueous
film forming foam (AFFF) products containing synthetic, toxic per-
and polyfluoroalkyl substances collectively known as PFAS. The
Defendants failed to use reasonable and appropriate care in the
design, manufacture, labeling, warning, instruction, training,
selling, marketing, and distribution of their PFAS-containing AFFF
products and also failed to warn public entities and civilian
firefighters, including the Plaintiff, who they knew would
foreseeably come into contact with their AFFF products that use of
and/or exposure to the products would pose a danger to human
health. Due to inadequate warning, the Plaintiff was exposed to
toxic chemicals and was diagnosed with prostate cancer, says the
suit.
3M Company, f/k/a Minnesota Mining and Manufacturing Co., is a
multinational conglomerate corporation and designer, marketer,
developer, manufacturer, distributor of firefighting equipment,
including those with AFFF. It is located at 3M Center, St. Paul.
Minnesota.
ACG Chemicals Americas Inc. is a manufacturer of chemical products
based in Exton, Pennsylvania.
Amerex Corporation is a manufacturer of firefighting products based
in Trussville, Alabama.
Archroma U.S. Inc. is a global specialty chemicals company
headquartered in Charlotte, North Carolina.
Arkema, Inc. is a diversified chemicals manufacturer in North
America, based in King of Prussia, Pennsylvania.
Buckeye Fire Equipment Co. is a manufacturer of line of handheld
and wheeled fire extinguishers, suppressing foam concentrates &
hardware, and kitchen suppression systems, with principal place of
business located at 110 Kings Road, Mountain, North Carolina.
Carrier Global Corporation is a heating, ventilation, and air
conditioning company based in Palm Beach Gardens, Florida.
Chemdesign Products, Inc. is a chemical toll manufacturing company
based in Marinette, Wisconsin.
Chemguard, Inc. is a manufacturer of fire suppression and specialty
chemicals, including AFFF, with principal place of business located
at One Stanton Street, Marinette, Wisconsin.
Chemicals, Inc. is a chemical manufacturing company based in
Baytown, Texas.
Chemours Company FC, LLC is a manufacturer of titanium
technologies, fluoroproducts and chemical solutions based in
Wilmington, Delaware.
Chubb Fire, Ltd is a provider of security and fire protection
systems based in United Kingdom.
Clariant Corp. is a specialty chemical company based in Charlotte,
North Carolina.
Corteva, Inc. is an American agricultural chemical and seed company
based in Wilmington, Delaware.
Deepwater Chemicals, Inc. is a producer of organic and inorganic
iodine derivatives based in Woodward, Oklahoma.
Du Pont De Nemours Inc., f/k/a DowDuPont Inc., is a chemical
company based in Wilmington, Delaware.
Dynax Corporation is a company that specializes in the production
of fluorochemicals based in Pound Ridge, New York.
E.I Dupont De Nemours & Co. is a provider of agriculture and
specialty products with principal place of business at 1007 Market
Street, Wilmington, Delaware.
Kidde-Fenwal, Inc. is a manufacturer of fire protection systems
based in Ashland, Massachusetts.
Kidde PLC is a manufacturer of fire safety products based in
Mebane, North Carolina.
Nation Ford Chemical Company is a manufacturer of specialty organic
chemicals based in Fort Mill, South Carolina.
National Foam, Inc. is a manufacturer of foam concentrate, foam
proportioning systems, fixed and portable foam firefighting
equipment, with principal place of business located at 350 East
Union Street, West Chester, Pennsylvania.
The Chemours Company is a manufacturer of agricultural chemicals
with principal place of business at 1007 Market Street, Wilmington,
Delaware.
Tyco Fire Products L.P., successor-in-interest to The Ansul
Company, is a manufacturer of water-based fire suppression system
components and ancillary building construction products, including
Ansul brand of AFFF, headquartered at One Stanton Street,
Marinette, Wisconsin.
United Technologies Corporation was an American multinational
conglomerate headquartered in Farmington, Connecticut. It merged
with the Raytheon Company in April 2020 to form Raytheon
Technologies.
UTC Fire & Security Americas Corporation, Inc., f/k/a GE
Interlogix, Inc., is a manufacturer of security and fire control
systems based in Bradenton, Florida. [BN]
The Plaintiff is represented by:
Richard Zgoda, Jr., Esq.
Steven D. Gacovino, Esq.
GACOVINO, LAKE & ASSOCIATES, P.C.
270 West Main Street
Sayville, NY 11782
Telephone: (631) 600-0000
Facsimile: (631) 543-5450
- and –
Gregory A. Cade, Esq.
Gary A. Anderson, Esq.
Kevin B. McKie, Esq.
ENVIRONMENTAL LITIGATION GROUP, P.C.
2160 Highland Avenue South
Birmingham, AL 35205
Telephone: (205) 328-9200
Facsimile: (205) 328-9456
3M COMPANY: Williams Suit Claims Complications From AFFF Products
-----------------------------------------------------------------
CHARLES WILLIAMS, individually and on behalf of all others
similarly situated, Plaintiff v. 3M COMPANY (f/k/a Minnesota Mining
and Manufacturing Company); ACG CHEMICALS AMERICAS INC.; AMEREX
CORPORATION; ARCHROMA U.S. INC.; ARKEMA, INC.; BUCKEYE FIRE
EQUIPMENT COMPANY; CARRIER GLOBAL CORPORATION; CHEMDESIGN PRODUCTS,
INC.; CHEMGUARD, INC.; CHEMICALS, INC.; CHEMOURS COMPANY FC, LLC;
CHUBB FIRE, LTD; CLARIANT CORP.; CORTEVA, INC.; DEEPWATER
CHEMICALS, INC.; DU PONT DE NEMOURS INC. (f/k/a DOWDUPONT INC.);
DYNAX CORPORATION; E.I. DU PONT DE NEMOURS AND COMPANY;
KIDDE-FENWAL, INC.; KIDDE PLC; NATION FORD CHEMICAL COMPANY;
NATIONAL FOAM, INC.; THE CHEMOURS COMPANY; TYCO FIRE PRODUCTS LP,
as successor-in-interest to The Ansul Company; UNITED TECHNOLOGIES
CORPORATION; UTC FIRE & SECURITY AMERICAS CORPORATION, INC. (f/k/a
GE Interlogix, Inc.), Defendants, Case No. 2:22-cv-02133-RMG
(D.S.C., July 5, 2022) is a class action against the Defendants for
negligence, battery, inadequate warning, design defect, strict
liability, fraudulent concealment, breach of express and implied
warranties, and wantonness.
The case arises from severe personal injuries sustained by the
Plaintiff as a result of his exposure to the Defendants' aqueous
film forming foam (AFFF) products containing synthetic, toxic per-
and polyfluoroalkyl substances collectively known as PFAS. The
Defendants failed to use reasonable and appropriate care in the
design, manufacture, labeling, warning, instruction, training,
selling, marketing, and distribution of their PFAS-containing AFFF
products and also failed to warn public entities and civilian
firefighters, including the Plaintiff, who they knew would
foreseeably come into contact with their AFFF products that use of
and/or exposure to the products would pose a danger to human
health. Due to inadequate warning, the Plaintiff was exposed to
toxic chemicals and was diagnosed with prostate cancer, the suit
alleges.
3M Company, f/k/a Minnesota Mining and Manufacturing Co., is a
multinational conglomerate corporation and designer, marketer,
developer, manufacturer, distributor of firefighting equipment,
including those with AFFF. It is located at 3M Center, St. Paul.
Minnesota.
ACG Chemicals Americas Inc. is a manufacturer of chemical products
based in Exton, Pennsylvania.
Amerex Corporation is a manufacturer of firefighting products based
in Trussville, Alabama.
Archroma U.S. Inc. is a global specialty chemicals company
headquartered in Charlotte, North Carolina.
Arkema, Inc. is a diversified chemicals manufacturer in North
America, based in King of Prussia, Pennsylvania.
Buckeye Fire Equipment Co. is a manufacturer of line of handheld
and wheeled fire extinguishers, suppressing foam concentrates &
hardware, and kitchen suppression systems, with principal place of
business located at 110 Kings Road, Mountain, North Carolina.
Carrier Global Corporation is a heating, ventilation, and air
conditioning company based in Palm Beach Gardens, Florida.
Chemdesign Products, Inc. is a chemical toll manufacturing company
based in Marinette, Wisconsin.
Chemguard, Inc. is a manufacturer of fire suppression and specialty
chemicals, including AFFF, with principal place of business located
at One Stanton Street, Marinette, Wisconsin.
Chemicals, Inc. is a chemical manufacturing company based in
Baytown, Texas.
Chemours Company FC, LLC is a manufacturer of titanium
technologies, fluoroproducts and chemical solutions based in
Wilmington, Delaware.
Chubb Fire, Ltd is a provider of security and fire protection
systems based in United Kingdom.
Clariant Corp. is a specialty chemical company based in Charlotte,
North Carolina.
Corteva, Inc. is an American agricultural chemical and seed company
based in Wilmington, Delaware.
Deepwater Chemicals, Inc. is a producer of organic and inorganic
iodine derivatives based in Woodward, Oklahoma.
Du Pont De Nemours Inc., f/k/a DowDuPont Inc., is a chemical
company based in Wilmington, Delaware.
Dynax Corporation is a company that specializes in the production
of fluorochemicals based in Pound Ridge, New York.
E.I Dupont De Nemours & Co. is a provider of agriculture and
specialty products with principal place of business at 1007 Market
Street, Wilmington, Delaware.
Kidde-Fenwal, Inc. is a manufacturer of fire protection systems
based in Ashland, Massachusetts.
Kidde PLC is a manufacturer of fire safety products based in
Mebane, North Carolina.
Nation Ford Chemical Company is a manufacturer of specialty organic
chemicals based in Fort Mill, South Carolina.
National Foam, Inc. is a manufacturer of foam concentrate, foam
proportioning systems, fixed and portable foam firefighting
equipment, with principal place of business located at 350 East
Union Street, West Chester, Pennsylvania.
The Chemours Company is a manufacturer of agricultural chemicals
with principal place of business at 1007 Market Street, Wilmington,
Delaware.
Tyco Fire Products L.P., successor-in-interest to The Ansul
Company, is a manufacturer of water-based fire suppression system
components and ancillary building construction products, including
Ansul brand of AFFF, headquartered at One Stanton Street,
Marinette, Wisconsin.
United Technologies Corporation was an American multinational
conglomerate headquartered in Farmington, Connecticut. It merged
with the Raytheon Company in April 2020 to form Raytheon
Technologies.
UTC Fire & Security Americas Corporation, Inc., f/k/a GE
Interlogix, Inc., is a manufacturer of security and fire control
systems based in Bradenton, Florida. [BN]
The Plaintiff is represented by:
Richard Zgoda, Jr., Esq.
Steven D. Gacovino, Esq.
GACOVINO, LAKE & ASSOCIATES, P.C.
270 West Main Street
Sayville, NY 11782
Telephone: (631) 600-0000
Facsimile: (631) 543-5450
- and –
Gregory A. Cade, Esq.
Gary A. Anderson, Esq.
Kevin B. McKie, Esq.
ENVIRONMENTAL LITIGATION GROUP, P.C.
2160 Highland Avenue South
Birmingham, AL 35205
Telephone: (205) 328-9200
Facsimile: (205) 328-9456
ACCENTURE PLC: Faces Consumers' Suit Over Data Breach
-----------------------------------------------------
Accenture PLC disclosed in its Form 10-Q Report for the quarterly
period ended May 31, 2022, filed with the Securities and Exchange
Commission on June 23, 2022, that it is facing a putative class
action lawsuit filed by consumers of Marriott International, Inc.
in the U.S. District Court for the District of Maryland in July 24,
2019.
The complaint alleges negligence by the company, and seeks monetary
damages, costs and attorneys' fees and other related relief,
relating to a data security incident involving unauthorized access
to the reservations database of Starwood Worldwide Resorts, Inc.,
which was acquired by Marriott on September 23, 2016.
Since 2009, the company has provided certain IT infrastructure
outsourcing services to Starwood. On October 27, 2020, the court
issued an order largely denying Accenture's motion to dismiss the
claims against the company. On May 3, 2022, the court issued an
order granting in part the plaintiffs' motion for class
certification, which the company is appealing.
Accenture PLC is a professional services company based in Ireland.
ACUITY BRANDS: Court OKs Settlement in Securities Litigation
------------------------------------------------------------
Acuity Brands, Inc. disclosed in its Form 10-Q Report for the
quarterly period ended May 31, 2022, filed with the Securities and
Exchange Commission on June 30, 2022, that on October 5, 2021, the
parties to the shareholder class action litigation previously
disclosed and styled "In re Acuity Brands, Inc. Securities
Litigation," Civil Action No. 1:18-cv-02140-MHC (N.D. Ga.) executed
a term sheet for settlement of the litigation, subject to
documentation of the settlement and approval of the District court
after notice to class members.
On December 2, 2021, the lead plaintiff in the case filed an
unopposed motion seeking preliminary approval of the settlement
which attaches the settlement stipulation and exhibits thereto. On
June 7, 2022, following an approval hearing, the District court
entered a judgment approving the settlement and dismissing the
action with prejudice.
Acuity Brands, Inc. is a market-leading industrial technology
company based in Georgia.
AEROVIRONMENT INC: Discovery Ongoing in California Class Suit
-------------------------------------------------------------
Aerovironment, Inc. disclosed in its Form 10-K/A Report for the
fiscal year ended December 31, 2021, filed with the Securities and
Exchange Commission on June 29, 2022, that a class action lawsuit
was filed against the company alleging violation of the California
Labor Code. Discovery is ongoing in this lawsuit.
On August 9, 2021, a former employee filed a class action complaint
against AeroVironment in California Superior court in Los Angeles,
California alleging various claims pursuant to the California Labor
Code related to wages, meal breaks, overtime and other
recordkeeping matters.
The complaint seeks a jury trial and payment of various alleged
unpaid wages, penalties, interest and attorneys' fees in
unspecified amounts. The company filed their answer on December 16,
2021. Discovery in this lawsuit has begun and is ongoing.
Aerovironment, Inc. designs, develops, produces, delivers and
supports a technologically-advanced portfolio of intelligent,
multi-domain robotic systems and related services based in
Virginia.
ALLSUP EMPLOYMENT: Court Denies Bid to Certify Class in Barnes Suit
-------------------------------------------------------------------
In the case, ANNETTE BARNES, individually and on behalf of all
others similarly situated, Plaintiff v. ALLSUP EMPLOYMENT SERVICES,
LLC, Defendant, Case No. 21-cv-21121-BLOOM/Otazo-Reyes (S.D. Fla.),
Judge Beth Bloom of the U.S. District Court for the Southern
District of Florida denies the Plaintiff's Motion for Class
Certification.
I. Background
On March 2, 2021, the Plaintiff filed her Complaint against the
Defendant in the Circuit Court of the Eleventh Judicial Circuit in
and for Miami-Dade County, Florida, alleging that the Defendant
violated the Telephone Consumer Protection Act ("TCPA"). According
to the Complaint, the Defendant transmitted calls using an
artificial or prerecorded voice to the telephone numbers of the
Plaintiff and the members of the putative classes in violation of
the TCPA.
The Complaint alleges three counts on behalf of Plaintiff
individually and on behalf of two putative classes: a violation of
47 U.S.C. Section 227(b) brought on behalf of Plaintiff
individually and on behalf of the "No Consent Class" ("Count I"); a
violation of 47 C.F.R. Section 64.1200 brought on behalf of
Plaintiff individually and on behalf of the "No Consent Class"
("Count II"); and a violation of 47 U.S.C. Section 227(b) brought
on behalf of Plaintiff individually and on behalf of the "Do Not
Call Registry Class" ("Count III"). The Defendant subsequently
removed the case to the Court.
On Oct. March 14, 2022, the Plaintiff filed the instant Motion
seeking class certification pursuant to Fed. R. Civ. P. 23(a) and
23(b)(3). She proposes the following class and subclass:
a. Class: All persons who AES called from Dec. 2020 to July
2021 using the OCX Platform and for which AES's call records
reflect a disposition of MESSAGE_PLAYED and ANSWERING_MACHINE.
b. Subclass: All persons whose cellular telephones AES called
from December 2020 to July 2021 using the OCX Platform and for
which AES's call records reflect a disposition of MESSAGE_PLAYED
and ANSWERING_MACHINE.
II. Discussion
District courts have broad discretion in deciding whether to
certify a class. To certify a class action, the putative class must
satisfy "the four requirements listed in Rule 23(a), and the
requirements listed in any of Rule 23(b)(1), (2), or (3)." "Under
Rule 23(a), every putative class first must satisfy the
prerequisites of numerosity, commonality, typicality, and adequacy
of representation." Next, under Rule 23(b)(3), class certification
is appropriate if: (3) the court finds 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.
"The burden of establishing these requirements is on the plaintiff
who seeks to certify the suit as a class action." The moving party
"must affirmatively demonstrate his compliance" with the class
certification requirements. That is, "a party must not only be
prepared to prove that there are in fact sufficiently numerous
parties, common questions of law or fact, typicality of claims or
defenses, and adequacy of representation, as required by Rule 23(a)
but also satisfy through evidentiary proof at least one of the
provisions of Rule 23(b)." "A district court must conduct a
rigorous analysis of the Rule 23 prerequisites before certifying a
class."
The Plaintiff seeks class certification pursuant to Fed. R. Civ. P.
23(a) and 23(b)(3). The Defendant responds that the Plaintiff's
proposed class and subclass do not meet the requirements of Fed. R.
Civ. P. 23(a) and 23(b)(3) because (1) individual fact questions
predominate and are not subject to common proof; (2) the Plaintiff
is an atypical and inadequate class representative; and (3) the
Plaintiff's proposed class and subclass are not superior or
manageable. The Plaintiff replies that Defendant creates a host of
nonexistent individualized issues in its Response and requests that
the Court improperly makes determinations on the merits of the
case.
A. Plaintiff's Standing
The Plaintiff argues in her Motion that she has Article III
standing. She avers that it is undisputed that she suffered an
injury-in-fact that is traceable to the Defendant's TCPA violations
and that the TCPA authorizes statutory and treble damages for
violations. The Defendant does not directly respond to the
Plaintiff's argument with regard to her standing, but it notes that
standing under the TCPA requires an allegation that Defendant
rendered her device "unavailable to receive legitimate calls or
messages for a period of time." It further notes that the Plaintiff
testified that she is seeking to recover damages for only four
recorded voicemails and that she was not deprived of legitimate
uses of her phone as a result of the voicemails.
Judge Bloom agrees with the Plaintiff. She determines that the
Defendant's multiple voicemails and the Plaintiff's repeated losses
of personal time from having to listen to multiple voicemails
constitute an injury-in-fact. In reaching this result, she finds
that "the receipt of more than one unwanted telemarketing call made
in violation of the provisions enumerated in the TCPA is a concrete
injury that meets the minimum requirements of Article III
standing." Lastly, the phone calls are traceable to the Defendant,
and the TCPA authorizes damages for such an injury. As such, Judge
Bloom determines that the Plaintiff does have Article III
standing.
B. Putative Class Members' Standing
Judge Bloom next addresses whether determining the standing of
putative class members is a predominating individualized issue that
forecloses class certification. The Plaintiff argues that for
individuals with such a disposition -- namely, individuals who did
not answer the Defendant's call and who received its voicemail --
common questions of law or fact predominate any individualized
issues. The Defendant responds that whether putative class members
have standing is a predominating individual issue that forecloses
class certification.
Judge Bloom agrees with the Defendant. She finds that the Plaintiff
received multiple calls that she did not answer, which resulted in
repeated losses of personal time. The repeated losses of time
established an injury-in-fact for the Plaintiff. However, as the
Defendant correctly points out, whether other putative class
members received multiple phone calls or one phone call is unclear
and will require an individualized inquiry. One unanswered phone
call that resulted in a voicemail would be insufficient to
establish an injury-in-fact, but multiple unanswered phone calls
resulting in multiple voicemails would be sufficient to establish
an injury-in-fact.
Further, for individuals included in the putative class or subclass
because they did not answer one call and received one voicemail --
who would ordinarily not have standing because they only received
one voicemail -- would have standing if they answered at least two
separate calls from Defendant because two or more answered calls
are sufficient to establish standing. In other words, even after
identifying class members who received one voicemail from one
unanswered phone call and who ordinarily do not have standing, the
Court would then have to ascertain whether those class members
answered two or more separate calls from Defendant because those
class members would have standing by virtue of the answered calls.
Such individualized inquiries predominate any common question.
For these reasons, Judge Bloom holds that the Plaintiff has failed
to meet her burden of satisfying the requirements of Rule 23(b)(3).
The Plaintiff does not seek class certification under Rule 23(b)(1)
or (2). Therefore, class certification is not warranted and the
Court need not proceed further.
C. Request for Hearing
As a final matter, the Plaintiff requests a hearing. Given her
analysis, Judge Bloom does not find a hearing to be necessary to
address the issues presented. As such, he denies the Plaintiff's
request for a hearing.
III. Conclusion
Accordingly, Judge Bloom denies the Plaintiff's Motion for Class
Certification.
A full-text copy of the Court's July 1, 2022 Order is available at
https://tinyurl.com/yhcmv6ns from Leagle.com.
ARC ONE: Quinonez Sues Over Security Guards' Unpaid Wages
---------------------------------------------------------
ESTEBAN OMAR PEREZ QUINONEZ and all others similarly situated v.
ARC ONE PROTECTIVE SERVICES LLC, CHANCE RAMOS, AND AUSTIN WALLACE,
Case No. 1:22-cv-21989 (S.D. Fla., June 29, 2022) seeks to recover
monetary damages, liquidated damages, interest, costs and
attorney's fees for willful violations of overtime and minimum wage
pay under the laws of the United States, the Fair Labor Standards
Act.
The Plaintiff has been employed by Defendants since September 2021
as a security guard providing services at Covid-19 testing cites in
Miami-Dade.
Arc One Protective Services is a full-service private security
company.[BN]
The Plaintiff is represented by:
Yelina Angulo, Esq.
ANGULO DIAZ LAW GROUP, P.A.
780 NW 42 Avenue, Ste. 426
Miami, FL 33126
Telephone: (305) 468-9564
E-mail: service@angulodiazlaw.com
ARCON CREDIT: Ayala Files FDCPA Suit in D. New Jersey
-----------------------------------------------------
A class action lawsuit has been filed against Arcon Credit
Solutions, LLC. The case is styled as Edgard Velez Ayala,
individually and on behalf of all others similarly situated v.
Arcon Credit Solutions, LLC, Case No. 3:22-cv-04402 (E.D.N.Y., July
4, 2022).
The lawsuit is brought over alleged violation of the Fair Debt
Collection Practices Act.
Arcon Credit Solutions, LLC (Arcon) -- https://arconcredit.com/ --
works with consumers and businesses to resolve outstanding
debts.[BN]
The Plaintiff is represented by:
Karra Kingston, Esq.
22 JUNIPER WAY
BASKING RIDGE, NJ 07920
Phone: (973) 979-9078
Email: karralbonomo@gmail.com
BED BATH & BEYOND: Settlement in Consolidated Suit Gets Final Nod
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Bed Bath & Beyond Inc. disclosed in its Form 10-Q Report for the
quarterly period ended May 28, 2022, filed with the Securities and
Exchange Commission on June 29, 2022, that the settlement in a
consolidated class action lawsuit against the company was granted
final approval and was dismissed by the court in June 2022.
Said class action asserts claims under the Securities Exchange Act
of 1934 on behalf of a putative class of purchasers of the
company's securities from October 2, 2019 through February 11,
2020, was filed on April 30, 2020. Said case, captioned "Kirkland
v. Bed Bath & Beyond Inc., et al.," Case No. 1:20-cv-05339-MCA-MAH,
is pending in the United States District court for the District of
New Jersey.
On August 14, 2020, the court consolidated the cases and appointed
Kavin Bakhda as lead plaintiff pursuant to the Private Securities
Litigation Reform Act of 1995. Lead plaintiff and additional named
plaintiff Richard Lipka filed an Amended Class Action Complaint on
October 20, 2020, on behalf of a putative class of purchasers of
the Company's securities from September 4, 2019 through February
11, 2020. Defendants moved to dismiss the Amended Complaint on
December 21, 2020.
After a mediation held in August 2021, a settlement in principle
was reached between the Company and lead plaintiff in the
Securities Class Action. The settlement has been executed and was
preliminarily approved by the New Jersey Federal court in February
2022. The court granted final approval to the settlement and
dismissed the Securities Class Action on June 2, 2022.
Bed Bath & Beyond Inc. and its subsidiaries are an omni-channel
retailer based in New Jersey.
BED BATH & BEYOND: Settlement in Vitiello Suit Wins Final Approval
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Bed Bath & Beyond Inc. disclosed in its Form 10-Q Report for the
quarterly period ended May 28, 2022, filed with the Securities and
Exchange Commission on June 29, 2022, that the settlement in a
consolidated class action lawsuit against the company was granted
final approval and was dismissed by the court in June 2022.
A putative securities class action was filed on April 14, 2020
against the Company and three of its officers and/or directors
(Mark Tritton, Mary Winston and Robyn D'Elia) in the United States
District court for the District of New Jersey.
The case, which is captioned "Vitiello v. Bed Bath & Beyond Inc.,
et al.," Case No. 2:20-cv-04240-MCA-MAH, asserts claims under the
Securities Exchange Act of 1934 on behalf of a putative class of
purchasers of the company's securities from October 2, 2019 through
February 11, 2020.
The complaint alleges that certain of the company's disclosures
about financial performance and certain other public statements
during the putative class period were materially false or
misleading.
In August 14, 2020, the court consolidated the cases and appointed
Kavin Bakhda as lead plaintiff pursuant to the Private Securities
Litigation Reform Act of 1995. Lead plaintiff and additional named
plaintiff Richard Lipka filed an Amended Class Action Complaint on
October 20, 2020, on behalf of a putative class of purchasers of
the Company's securities from September 4, 2019 through February
11, 2020. Defendants moved to dismiss the Amended Complaint on
December 21, 2020.
After a mediation held in August 2021, a settlement in principle
was reached between the company and lead plaintiff in the
Securities Class Action. The settlement has been executed and was
preliminarily approved by the New Jersey Federal court in February
2022. The court granted final approval to the settlement and
dismissed the Securities Class Action on June 2, 2022.
Bed Bath & Beyond Inc. and its subsidiaries are an omni-channel
retailer based in New Jersey.
BLACKBERRY LTD: Hearing on Final OK of Settlement Set for Sept. 29
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BlackBerry Limited disclosed in its Form 10-Q Report for the
quarterly period ended May 31, 2022, filed with the Securities and
Exchange Commission on June 24, 2022, that a settlement for a class
action filed on March 14, 2014 has been granted and a final
approval hearing is scheduled for September 29, 2022.
On March 14, 2014, the four putative U.S. class actions were
consolidated in the U.S. District Court for the Southern District
of New York, and on May 27, 2014, a consolidated amended class
action complaint was filed. On March 13, 2015, the court issued an
order granting the Company's motion to dismiss. The court denied
the plaintiffs' motion for reconsideration and for leave to file an
amended complaint on November 13, 2015.
On August 24, 2016, the U.S. court of Appeals for the Second
Circuit affirmed the District court order dismissing the complaint,
but vacated the order denying leave to amend and remanded to the
District court for further proceedings in connection with the
plaintiffs' request for leave to amend. The court granted the
plaintiffs' motion for leave to amend on September 13, 2017.
On September 29, 2017, the plaintiffs filed a second consolidated
amended class action complaint, which added the Company's former
Chief Legal Officer as a defendant. The court denied the motion to
dismiss the Second Amended Complaint on March 19, 2018. On August
2, 2019, the Magistrate Judge issued a Report and Recommendation
that the court grant the defendants' motion for judgment on the
pleadings dismissing the claims of additional plaintiffs Cho and
Ulug. In September 24, 2019, the District court Judge accepted the
Magistrate Judge's recommendation and dismissed the claims of Cho
and Ulug against all defendants
On January 26, 2021, the district court granted the plaintiffs'
motion for class certification. The class includes "all persons who
purchased or otherwise acquired the common stock of BlackBerry
Limited on the NASDAQ during the period from March 28, 2013,
through and including September 20, 2013". The class excludes (a)
all persons and entities who purchased or otherwise acquired the
Company's common stock between March 28, 2013, and April 10, 2013,
and who sold all their Company common stock before April 11, 2013,
and (b) the defendants, officers and directors of the Company,
members of their immediate families and their legal
representatives, heirs, successors, or assigns, and any entity in
which any of the Defendants have or had a controlling interest.
The Second Circuit Court of Appeals denied the defendants' petition
for review of the class certification order on June 23, 2021. It
affirmed the district court judgment dismissing Cho and Ulug's
claims on March 11, 2021, and denied Cho and Ulug's petition for
panel rehearing and rehearing en banc on April 28, 2021.
In May 5, 2021, the parties participated in a mediation with
retired Judge Layn Phillips, which did not result in an agreement.
In September 10, 2021, the court granted the plaintiffs' unopposed
motion for approval of the class notice plan. Postcard notice was
mailed on October 8, 2021; publication notice was issued starting
on October 18, 2021. On January 3, 2022, the court denied
defendants' motion for summary judgment except with respect to
seven statements the court found were barred by the statute of
repose. In April 6, 2022, the parties accepted a mediator's
proposal, and reached an agreement in principle to settle the U.S.
consolidated actions for $165,000,000.
The settlement is subject to preliminary and final approval by the
court. The Stipulation of Settlement was executed effective June 7,
2022, the court granted plaintiffs' motion for preliminary approval
of the settlement on June 14, 2022, and scheduled the final
approval hearing for September 29, 2022.
BlackBerry Limited provides intelligent security software and
services based in Canada.
BORSHEIM JEWELRY: Luis Files ADA Suit in S.D. New York
------------------------------------------------------
A class action lawsuit has been filed against Borsheim Jewelry
Company, Inc. The case is styled as Kevin Yan Luis, individually
and on behalf of all others similarly situated v. Borsheim Jewelry
Company, Inc., Case No. 1:22-cv-05694-LJL (S.D.N.Y., July 5,
2022).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Borsheims -- https://www.borsheims.com/ -- is a luxury jewelry
store that sells fine jewelry, timepieces, engagement rings and
home decor in Omaha, Nebraska..[BN]
The Plaintiff is represented by:
Noor Abou-Saab, I, Esq.
LAW OFFICE OF NOOR A. SAAB
380 North Broadway, Suite 300
Jericho, NY 11753
Phone: (718) 740-5060
Email: noorasaablaw@gmail.com
BP EXPLORATION: Cook Expert Testimony Excluded From Harrison Suit
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In the case, KENNARD HARRISON, Plaintiff v. BP EXPLORATION &
PRODUCTION INC., ET AL., SECTION: "E" (2) Defendants, Civil Action
No. 17-4346 (E.D. La.), Judge Susie Morgan of the U.S. District
Court for the Eastern District of Louisiana issued her Order and
Reasons granting:
a. the Defendants' motion in limine to exclude Dr. Jerald
Cook's general causation expert testimony; and
b. the Defendants' motion for summary judgment.
I. Introduction
Before the Court is a motion in limine to exclude the opinions of
Plaintiff Harrison's medical causation expert, Cook, filed by BP
Exploration & Production Inc., BP America Production Co., BP
p.l.c., Halliburton Energy Services, Inc., Transocean Holdings LLC,
Transocean Deepwater, Inc., and Transocean Offshore Deepwater
Drilling, Inc. (collectively "Defendants"). Also before the Court
is the Defendants' motion for summary judgment. The Plaintiff has
filed an opposition to both motions, and the Defendants have filed
replies.
II. Background
The instant action is a "B3" case arising out of the 2010 Deepwater
Horizon oil spill in the Gulf of Mexico. B3 cases involve "claims
for personal injury and wrongful death due to exposure to oil
and/or other chemicals used during the oil spill response (e.g.,
dispersant)."
The Plaintiff alleges he worked as a shipyard technician in Alabama
and was responsible for cleanup work after the Deepwater Horizon
oil spill. Specifically, as a shipyard technician, the Plaintiff
entered the tanks of docked ships to scrape and vacuum oil and tar
from tanks into collections trucks. As a result, he was exposed to
crude oil and chemical dispersants for approximately two to three
months, which allegedly caused him to develop temporary symptoms of
heartburn, chest pain, and yellow discharge from his eyes. He filed
the instant civil action, seeking a jury trial with respect to his
claims of negligence.
The Plaintiff relies on Cook to provide medical causation analysis
supporting his claim that his exposure to oil and dispersants
caused his health problems. It is uncontested that Cook is a
qualified expert. What is contested, however, is whether Cook's
testimony can withstand a Daubert challenge.
The Defendants filed the instant motion in limine to exclude Cook's
general causation expert testimony and, they argue, if this
testimony is excluded, the Court should grant their motion for
summary judgment because the Plaintiff will lack necessary expert
testimony. Alternatively, if Cook's testimony is not excluded, the
Defendants ask the Court to grant summary judgment because the
Plaintiff has not produced expert testimony to establish specific
causation.
III. Analysis
A. BP's motion in limine to exclude Cook's general causation expert
testimony is granted.
B3 plaintiffs must prove that the legal cause of the claimed injury
or illness is exposure to oil or other chemicals used during the
response." Once a plaintiff's diagnoses have been confirmed, the
plaintiff has the burden of establishing general causation and
specific causation. "'First, the district court must determine
whether there is general causation. Second, if it concludes there
is admissible general-causation evidence, the district court must
determine whether there is admissible specific-causation
evidence.'"
"General causation is whether a substance is capable of causing a
particular injury or condition in the general population, while
specific causation is whether a substance caused a particular
individual's injury." With respect to general causation,
"scientific knowledge of the harmful level of exposure to a
chemical, plus knowledge that the plaintiff was exposed to such
quantities, are minimal facts necessary to sustain the plaintiff's
burden in a toxic tort case."
1. Cook fails to verify Harrison's diagnoses.
The Defendants first move the Court to exclude Cook's expert report
because he does not verify the Plaintiff's medical diagnoses of
heartburn, chest pain, and yellow ocular discharge. The American
Medical Association's (AMA) Guide to the Evaluation of Disease and
Injury Causation provides the expert's threshold inquiry or "first
step is to establish or verify the diagnosis. This step is
accomplished by careful review of the available medical records
and/or examination of the patient. Exposure becomes relevant only
when the presence of disease or illness is established." This
threshold inquiry is designed to "avoid wasting time, effort, and
resources pursuing unreasonable hypotheses, while at the same time
not missing the opportunity to find previously unrecognized
hazards." The expert must verify the patient's diagnoses before
proceeding to general or specific causation.
Cook "maintains a copy of this AMA publication and uses it as a
reference." Troublingly, though, according to Judge Morgan, Cook's
report includes no reference to Harrison or his diagnoses and there
is no indication that Cook either interviewed or examined Harrison
before forming his expert opinion. Furthermore, she finds no
indication Cook reviewed Harrison's medical records. The
Plaintiff's opposition admits that Cook "does not base his opinion
on a medical diagnosis specific to Harrison," but asserts that "a
diagnosis is not necessary in a transient symptom case" such as
this one. In support of that contention, the Plaintiff cites cases
like Guidry v. Dow Chemical Company and Bell v. Foster Wheeler
Energy Corporation.
In sum, Guidry and Bell analyzed whether, inter alia, general
causation expert testimony alone could sustain a toxic tort claim
without additional expert testimony on specific causation either
when the injury was within the layperson's common knowledge or when
there was specific evidence regarding the nature of the plaintiff's
exposure. Critically, the courts in Guidry and Bell did not analyze
whether, as a threshold matter, a general causation expert is
required to confirm a plaintiff's diagnoses. The issue now before
this Court relates to Cook's failure to perform the threshold task
of confirming the Plaintiff's diagnoses -- not whether there is a
need for expert testimony to prove specific causation.
Expert testimony "must be reliable at each and every step or else
it is inadmissible." The Court's review of the relevant section of
the AMA Guide -- which BP included in the record -- demonstrates
the AMA's framework is a published technique with explicit
standards controlling its operation. Cook's failure to perform step
one of the AMA Guide's framework is concerning because "exposure
becomes relevant only when the presence of disease or illness is
established." Cook's failure to confirm as a threshold matter that
Harrison had been diagnosed with heartburn, chest pain, and yellow
ocular discharge reveals that Cook has not "reliably applied the
principles and methods to the facts of this case."
This deficiency, according to Judge Morgan, is particularly
concerning because "the fundamental question underlying Cook's
testimony," as well as the Court's ruling on the Defendants' motion
in limine, is "whether the chemicals that Harrison was exposed to
and the type of exposures Harrison experienced caused Harrison's
illnesses." Without verifying Harrison's diagnoses, Cook has not
sufficiently explained how any particular study could provide "a
reliable basis for the opinion that the types of chemicals Harrison
was exposed to could cause hi particular injury in the general
population." This lack of verification of the Plaintiff's diagnoses
weighs against admitting Cook's opinions.
2. Cook does not identify the harmful level of exposure to a
chemical required for complained-of symptoms to manifest, a minimum
standard for general causation set by the Fifth Circuit.
The Defendants also move the Court to exclude Cook's testimony on
general causation because his "report does not include any opinion
as to the level of exposure known to cause any of the plaintiff's
conditions, which the Fifth Circuit described as one of the minimum
requirements for an admissible causation opinion."
In sum, Judge Morgan finds that Cook did not identify the necessary
dose of exposure for each of the Plaintiff's symptoms to manifest.
Cook's failure to satisfy this minimum requirement "weighs heavily
in favor of exclusion" of his testimony on general causation.
Accordingly, the Defendants' motion in limine to exclude Cook's
general causation testimony must be granted because the testimony
is unreliable and, therefore, inadmissible.
B. Plaintiff has failed to present a genuine issue of material fact
with respect to his claims that his injuries were caused by
exposure to oil and dispersants because Plaintiff lacks general
causation expert testimony.
Because Cook's general causation opinions are excluded, the
Defendants are entitled to summary judgment on the Plaintiff's
claims, Judge Morgan holds. The Plaintiff has no other medical
expert to establish general causation, which is required in a toxic
tort case. He has failed to present a genuine issue of material
fact with respect to his claims that his injuries were caused by
exposure to oil and dispersants. Accordingly, the Defendants'
motion for summary judgment should be granted.
IV. Conclusion
Judge Morgan grants the motion in limine and the motion for summary
judgment. Judgment is granted in favor of Defendants BP Exploration
& Production Inc., BP America Production Co., BP p.l.c.,
Halliburton Energy Services, Inc., Transocean Holdings LLC,
Transocean Deepwater, Inc., and Transocean Offshore Deepwater
Drilling, Inc. and against Plaintiff Harrison on all claims.
A full-text copy of the Court's July 1, 2022 Order & Reasons is
available at https://tinyurl.com/2p99jcu2 from Leagle.com.
BRAVADA INTERNATIONAL: Velazquez Files ADA Suit in S.D. New York
----------------------------------------------------------------
A class action lawsuit has been filed against Bravada
International, Ltd. The case is styled as Bryan Velazquez, on
behalf of himself and all others similarly situated v. Bravada
International, Ltd., Case No. 1:22-cv-05721-AT (S.D.N.Y., July 5,
2022).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Bravada International Ltd. -- https://www.bravada.com/ -- retails
clothing, produces reality television programming, and sells
vitamins, fitness machines, exercise equipment, health and fitness
books, and videos over the Internet.[BN]
The Plaintiff is represented by:
Mark Rozenberg, Esq.
STEIN SAKS, PLLC
One University Plaza, Ste. 620
Hackensack, NJ 07601
Phone: (201) 282-6500
Email: mrozenberg@steinsakslegal.com
CALDERA + LAB: Cordero Files ADA Suit in S.D. New York
------------------------------------------------------
A class action lawsuit has been filed against Caldera + Lab, LLC.
The case is styled as Rafael Cordero, individually, and on behalf
of all others similarly situated v. Caldera + Lab, LLC, Case No.
1:22-cv-05707 (S.D.N.Y., July 5, 2022).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Caldera + Lab -- https://calderalab.com/ -- offers men's skincare
products and cosmetics.[BN]
The Plaintiff is represented by:
Edward Y. Kroub, Esq.
MIZRAHI KROUB LLP
200 Vesey Street
New York, NY 10281
Phone: (212) 595-6200
Email: ekroub@mizrahikroub.com
CELLCO PARTNERSHIP: Can't Compel Arbitration in MacClelland Suit
----------------------------------------------------------------
In the case, TERESA MACCLELLAND, et al., Plaintiffs v. CELLCO
PARTNERSHIP, et al., Defendants, Case No. 21-cv-08592-EMC (N.D.
Cal.), Judge Edward M. Chen of the U.S. District Court for the
Northern District of California denies Defendant Verizon's motion
to compel arbitration.
I. Introduction
The Plaintiffs, individually, as private attorneys general, and on
behalf of a putative class of other customers similarly situated,
allege that Defendants Cellco Partnership d/b/a Verizon Wireless
and Verizon Communications Inc. (collectively, "Verizon"), engaged
in false advertising by failing to disclose an "Administrative
Charge" for wireless services, and misrepresenting that the fee is
a tax or government regulation. The Plaintiffs assert claims under
California law pursuant to the Consumer Legal Remedies Act, False
Advertising Law, and Unfair Competition Law seeking public
injunctive relief, private injunctive relief, and restitution.
Now pending is Verizon's motion to compel the entirety of the
action to arbitration subject to an arbitration agreement that
prohibits non-individualized relief.
II. Background
In the operative complaint, the Plaintiffs allege that Verizon has
engaged, and continues to engage, in a false advertising scheme
because Verizon publicly advertises flat monthly rates for its
wireless service plans but then charges higher rates "by padding
the bill with an invented and undisclosed" extra charge of $1.95
per month (which Verizon calls the "Administrative Charge"). The
First Amended Complaint or "FAC" alleges that the "Administrative
Charge" was concocted by Verizon beginning in September 2005 as a
means to covertly increase customers' rates. Since 2005, Verizon
has allegedly improperly collected over $1 billion in additional
charges from its California subscribers through use of
Administrative Charges.
The Plaintiffs bring claims individually, as private attorneys
general, and on behalf of a putative class consisting of "all
individual consumers in California who currently subscribe or
formerly subscribed to a postpaid wireless service plan from
Verizon and were charged what Verizon labeled an 'Administrative
Charge' within the applicable statutes of limitations."
The Plaintiffs bring claims under the Consumer Legal Remedies Act
("CLRA"), California Civil Code Section 1750 et seq., False
Advertising Law ("FAL"), Cal. Bus. & Prof. Code Section 17500 et
seq., and Unfair Competition Law ("UCL"), Cal. Bus. & Prof. Code
Section 17200 et seq. As an alternative to their statutory claims,
the Plaintiffs also bring a claim alleging breach of the implied
covenant of good faith and fair dealing.
The FAC seeks public injunctive relief to stop Verizon's allegedly
ongoing false and deceptive price advertising to the general public
under the UCL, FAL, and CLRA. Under the CLRA, FAL, and UCL, the
Plaintiffs also seek, on behalf of themselves and the proposed
class, restitution, damages, attorneys' fees, and a private
injunction ordering Verizon to "adequately and accurately disclose
to its subscribers the existence of the Administrative Charge, its
true nature or basis, and its amount, including on all of Verizon's
customer bills."
On Nov. 3, 2021, Plaintiffs Teresa MacClelland, Karen Umberger, and
Scott Willits filed the complaint. On Nov. 10, 2021, the Plaintiffs
sent a demand letter to Verizon that described their claims and
this dispute. On Dec. 31, 2021, the Plaintiffs filed the operative
FAC, adding 24 additional Plaintiffs. Verizon then moved to compel
arbitration and stay proceedings. On May 19, 2022, the Court heard
oral argument regarding Verizon's motion to compel arbitration.
Almost three weeks later, Verizon requested leave to file a
"notification of change" to Verizon's Customer Agreement that
addressed a statute of limitations issue that the Court had raised
during the hearing. The Plaintiffs then filed an opposition to
Verizon's motion for leave. On June 23, 2022, the Court granted
leave for the parties to submit supplemental briefing to address
Viking River Cruises, Inc. v. Moriana, 142 S.Ct. 1906 (2022).
III. Discussion
Before activating his or her wireless service, each plaintiff was
required to accept the Agreement. Over time, Verizon has made minor
adjustments to its Agreement over time, but every version of the
Agreement contained an arbitration clause that required arbitration
and expressly prohibited class arbitrations.
The Plaintiffs do not dispute that they assented to the arbitration
agreement. Nor do they contest Verizon's legal argument that their
claims fall within the scope of the arbitration clause. Instead,
the Plaintiffs argue that the dispute resolution provisions are
permeated with unconscionability and are thus unenforceable.
Neither party disputes the application of the Federal Arbitration
Act ("FAA"). Under the FAA, an agreement to arbitrate "shall be
valid, irrevocable, and enforceable, save upon such grounds as
exist at law or in equity for the revocation of any contract." The
final clause of Section 2, its saving clause, "permits agreements
to arbitrate to be invalidated by 'generally applicable contract
defenses, such as fraud, duress, or unconscionability,' but not by
defenses that apply only to arbitration or that derive their
meaning from the fact that an agreement to arbitrate is at issue."
In ruling on a motion to compel arbitration, a district court must
decide "(1) whether a valid agreement to arbitrate exists and, if
it does, (2) whether the agreement encompasses the dispute at
issue." "If the response is affirmative on both counts, then absent
application of the savings clause, the Act requires the court to
enforce the arbitration agreement in accordance with its terms."
A. Whether An Agreement to Arbitrate Exists
The initial question of whether an agreement to arbitrate exists
has a simple answer. The Plaintiffs do not dispute that the
Agreement, and its arbitration provision, constitute an agreement
to which they assented. Before activating his or her wireless
service, each plaintiff was required to accept the Agreement. While
Verizon has made minor adjustments to its Agreement over time,
every version of the Agreement contained an arbitration clause that
required arbitration and expressly prohibited class arbitrations.
Accordingly, an agreement to arbitrate exists.
B. Whether Plaintiffs' Claims Are Covered By the Agreement
The next question is whether Plaintiffs' claims are within the
scope of the arbitration agreement. This again has a
straightforward answer, according to Judge Chen -- the Plaintiffs
do not contest Verizon's legal argument that their claims fall
within the scope of the arbitration clause. Instead, they argue
that the dispute resolution provisions are permeated with
unconscionability and are thus unenforceable. Verizon responds that
the parties agreed to delegate the interpretation and enforcement
of the Agreement to the arbitrator, so any questions of
unconscionability must be determined by the arbitrator in the first
instance.
C. Delegation of Arbitrability
Verizon presents two arguments regarding the purported delegation
of arbitrability. First, on reply, Verizon argues for the first
time that all of the Plaintiffs' arguments about contract
invalidity must be decided in the first instance by the arbitrator
given the arbitration provision's incorporation by reference of the
AAA rules.
Judge Chen finds that the Agreement states, "for claims over
$10,000, the AAA's consumer arbitration rules will apply." The
Agreement provides that for claims of $10,000 or less, the party
bringing the claim can choose either the AAA's consumer arbitration
rules or the BBB's rules for binding arbitration. The BBB rules do
not contain an explicit delegation clause. Judge Chen thus finds
there is not clear and unmistakable evidence that the parties
agreed to arbitrate issues of arbitrability, particularly since it
is not clear that the consumer would consider any individual claim
to be worth over $10,000.
Second, Verizon also argues that several of the provisions that the
Plaintiffs attack as substantively unconscionable are
"fundamentally challenges to the enforceability of the Agreement
itself, not the arbitration clause, and are therefore delegated to
the arbitrator."
According to Judge Chen, Verizon is correct that some of the
provisions in question -- the 180-day notice period, the
pre-dispute jury waiver, the punitive damages waiver, and the
purported exculpatory clause -- are located outside of the
arbitration clause. But this argument, he says, "exalts form over
substance. It places a dispositive premium upon the location of the
objectionable clause -- whether they are written within the
arbitration paragraph or the paragraph preceding it -- even though
the arbitration clause clearly contemplates that all disputes will
be resolved through arbitration and that these clauses would apply
to arbitration." All but one of these provisions are functionally
intertwined with the arbitration clause and thus were anticipated
to affect the scope of arbitration. The presumption that the Court
decides arbitrability (and the terms affecting arbitrability) still
obtains, and there is not clear and unmistakable evidence to the
contrary.
D. Enforceability of the Arbitration Clause
The Plaintiffs argue that the arbitration agreement is both
procedurally and substantively unconscionable and thus
unenforceable. Courts apply state contract law to determine the
enforceability of an arbitration agreement. Under California law,
"a contractual provision is unenforceable if it is both
procedurally and substantively unconscionable." These two prongs
operate on a sliding scale: The lesser the procedural
unconscionability, the greater substantive unconscionability must
be shown, and vice versa. "When evaluating procedural
unconscionability, courts focus on oppression or surprise that
results from unequal bargaining power; while evaluating substantive
unconscionability, courts are more concerned with overly harsh or
one-sided results." If the Court determines that any contractual
provisions are unconscionable, the Court must then decide whether
the unconscionable provisions are severable from the rest of the
contract.
First, Judge Chen finds that the Plaintiffs argue that the
agreement is procedurally unconscionable because it is a contract
of adhesion. Since the Plaintiffs have only established a minimal
amount of procedural unconscionability, they must show significant
substantive unfairness to avoid arbitration.
The Plaintiffs assert that six provisions of the Agreement are
substantively unconscionable: (1) a 180-day contractual statute of
limitations; (2) a pre-dispute jury waiver; (3) a punitive damages
waiver; (4) a public injunctive relief waiver; (5) an exculpatory
clause with unreasonable discovery limits; and (6) a mass
arbitration provision. They maintain that these unconscionable
terms so permeate the agreement that they are non-severable and the
entire agreement is unenforceable. Verizon denies that any term is
unconscionable, and contends that any terms the Court does deem
unconscionable should be severed.
Judge Chen finds that (i) there is at least some degree of
substantive unconscionability associated with the 180-day notice
provision; (ii) because the jury trial waiver does not "limit the
scope of the arbitration," the Court puts no weight on this
provision in assessing the substantive unconscionability of the
arbitration clause; (iii) because the limitation of liability
clause prevents the Plaintiffs from receiving damages that they are
entitled to under CLRA, the punitive damages waiver provision is
substantively unconscionable; (iv) the public injunctive relief
waiver provision of the arbitration agreement is unenforceable; (v)
because "exculpatory clause" and "its discovery limitation" do not
allow for extrinsic evidence to be considered under any
circumstances, including to show fraud; and (vi) the mass
arbitration provision is substantively unconscionable
Because he finds that both procedural and substantive
unconscionability are present, Judge Chen must next analyze whether
the unconscionable parts of the arbitration provision should be
severed or whether it should refuse to enforce the arbitration
agreement altogether because unconscionability permeates the entire
agreement. In making this decision, he looks to the purpose of the
contract. In particular, when an arbitration clause is "permeated"
by unconscionability, severance is not required.
The California Supreme Court in Armendariz v. Found. Health
Psychare Servs., Inc., 24 Cal.4th 83, 89 (2000), weighed three
factors in determining whether severance is appropriate: (1)
whether the substantively unconscionable provision relates to the
arbitration agreement's chief objective; (2) whether the
arbitration agreement contained multiple substantively
unconscionable provisions such that it indicates a systematic
effort to impose arbitration not simply as an alternative to
litigation, but as an inferior forum; and (3) a lack of mutuality
that permeated the entire agreement.
Judge Chen holds that the severance clauses are not dispositive in
the case. He also finds that there is strong evidence that Verizon
was trying to impose an "inferior forum" on its customers. He
reaches this conclusion based on the number of unconscionable
provisions, their nature, and the overall effect which is entirely
foreseeable and intended. It appears that the object of the
Agreement is to force Verizon consumers into an inferior (and, in
many circumstances, wholly ineffective) forum. Judge Chen further
notes that permitting the Agreement to stand because Verizon
proposes to sever any unconscionable provisions creates a "perverse
incentive." The remedy of severance, therefore, may indirectly
reward systemic unconscionability. The remedy of severance deserves
close consideration and scrutiny.
The Court concludes that severance of the unconscionable provisions
is not appropriate and, therefore, denies Verizon's motion to
compel arbitration. Verizon's request to stay proceedings is denied
as moot.
IV. Conclusion
For the foregoing reasons, Judge Chen concludes that severance of
the unconscionable provisions is not appropriate. He denies
Verizon's motion to compel arbitration. Verizon's request for leave
to file notification of change to the Customer Agreement is denied
as moot.
The Order disposes of Docket Nos. 20 and 43.
A full-text copy of the Court's July 1, 2022 Order is available at
https://tinyurl.com/3spnjp86 from Leagle.com.
CG MEDICAL: Fails to Pay Proper Wages, Tannreuther Suit Alleges
---------------------------------------------------------------
JACKIE TANNREUTHER, individually, and on behalf of all others
similarly situated, Plaintiff v. CG MEDICAL ASSOCIATES, INC. d/b/a
CAREFIRST URGENT CARE and CHETAN GUPTA, Defendants, Case No.
1:22-cv-00391-MWM (S.D. OH., July 5, 2022) seeks to recover from
the Defendants unpaid wages and overtime compensation, interest,
liquidated damages, attorneys' fees, and costs under the Fair Labor
Standards Act.
Plaintiff Tannreuther was employed by the Defendants as medical
receptionist.
CG MEDICAL ASSOCIATES, INC. d/b/a CAREFIRST URGENT CARE is an
independent provider of urgent care in Cincinnati, OH. [BN]
The Plaintiff is represented by:
Bradley L. Gibson, Esq.
Angela J. Gibson, Esq.
GIBSON LAW, LLC
9200 Montgomery, Rd., Suite 11A
Cincinnati, OH 45242
Telephone: (513) 834-8254
Facsimile: (513) 834-8253
Email: brad@gibsonemploymentlaw.com
angela@gibsonemploymentlaw.com
CONDE NAST: Fontanez Files ADA Suit in S.D. New York
----------------------------------------------------
A class action lawsuit has been filed against Conde Nast
Entertainment LLC. The case is styled as Ramon Fontanez,
individually, and on behalf of all others similarly situated v.
Conde Nast Entertainment LLC, Case No. 1:22-cv-05712 (S.D.N.Y.,
July 5, 2022).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Conde Nast -- https://www.condenast.com/entertainment -- is a
global media company that produces some of the world's leading
print, digital, video and social brands.[BN]
The Plaintiff is represented by:
Edward Y. Kroub, Esq.
MIZRAHI KROUB LLP
200 Vesey Street
New York, NY 10281
Phone: (212) 595-6200
Email: ekroub@mizrahikroub.com
COROS WEARABLES: Cordero Files ADA Suit in S.D. New York
--------------------------------------------------------
A class action lawsuit has been filed against Coros Wearables Inc.
The case is styled as Rafael Cordero, individually, and on behalf
of all others similarly situated v. Coros Wearables Inc., Case No.
1:22-cv-05692 (S.D.N.Y., July 5, 2022).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
COROS Wearables Inc. -- https://www.coros.com/ -- is an American
multinational GPS technology company specialising in fitness and
sports wearables.[BN]
The Plaintiff is represented by:
Edward Y. Kroub, Esq.
MIZRAHI KROUB LLP
200 Vesey Street
New York, NY 10281
Phone: (212) 595-6200
Email: ekroub@mizrahikroub.com
CUSTOM KRAFT: Flores FLSA Suit Removed to S.D. Florida
------------------------------------------------------
The case styled EDWIN ORLANDO AGUIRRE FLORES, on behalf of himself
and all others similarly situated v. CUSTOM KRAFT, LLC, and RAUL
AGUILAR, individually, Case No. 2022-009467-CA-01, was removed from
the Circuit Court of the Eleventh Judicial Circuit in and for
Miami-Dade County, Florida, to the U.S. District Court for the
Southern District of Florida on July 5, 2022.
The Clerk of Court for the Southern District of Florida assigned
Case No. 1:22-cv-22022 to the proceeding.
The case arises from the Defendants' alleged failure to pay
overtime wages in violation of the Fair Labor Standards Act.
Custom Kraft, LLC is a limited liability company based in Florida.
[BN]
The Defendants are represented by:
Jorge L. Fors, Esq.
FORS | ATTORNEYS AT LAW
1108 Ponce de Leon Blvd.
Coral Gables, FL 33134
Telephone: (305) 448-5977
Facsimile: (305) 446-1898
E-mail: jfors@forslegal.com
DAVOS BRANDS: Fontanez Files ADA Suit in S.D. New York
------------------------------------------------------
A class action lawsuit has been filed against Davos Brands LLC. The
case is styled as Ramon Fontanez, individually, and on behalf of
all others similarly situated v. Davos Brands LLC, Case No.
1:22-cv-05711 (S.D.N.Y., July 5, 2022).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Davos Brands LLC -- https://www.davosbrands.com/ -- wholesales and
distributes alcoholic beverages. The Company offers products such
as spirits and liquor, gin, wines, and tequila.[BN]
The Plaintiff is represented by:
Edward Y. Kroub, Esq.
MIZRAHI KROUB LLP
200 Vesey Street
New York, NY 10281
Phone: (212) 595-6200
Email: ekroub@mizrahikroub.com
DEERE & CO: Monopolizes Repair Service Market, Perry Suit Alleges
-----------------------------------------------------------------
RICHARD PERRY, individually and on behalf of all others similarly
situated v. DEERE & CO. (d/b/a JOHN DEERE), Case No. 1:22-cv-03416
(N.D. Ill., June 29, 2022) is a class action suit about John
Deere's monopolization of the repair service market for John Deere
brand agricultural equipment with onboard central computers known
as engine control units ("ECUs").
Throughout history, farmers have been able to maintain and repair
their own tractors as needed when necessary. Elsewise, they have
had the option to bring their tractors to any mechanic who could
fix them. However, in newer generations of its agricultural
equipment, Deere has deliberately monopolized the market for Dealer
Repair Services ("DRS"), the repair and maintenance services of its
agricultural equipment with ECUs. Deere has made necessary tools
and software needed to perform repairs inaccessible to farmers and
independent repair shops, says the suit.
Furthermore, Deere's network of highly-consolidated independent
dealerships (the "Dealerships") is not allowed, as expressly laid
out in their agreements with Deere, to provide farmers or repair
shops with access to the same software and repair tools the
Dealerships have.
As a result of Deere's deliberate excluding of farmers and
independent repair shops from accessing the necessary resources for
repairs, Deere and the Dealerships have cornered the DRS Market in
the United States for agricultural equipment controlled by ECUs
that are Deere branded and have thus derived supra-competitive
profits from the sale of repair and maintenance services, the suit
alleges.
This is an antitrust class action pursuant to Sections 1 and 2 of
the Sherman Act brought by Plaintiffs on their own behalf and on
behalf of a class of persons and entities similarly situated. The
Plaintiffs seek to represent those persons and entities who
purchased DRS from Defendant Deere and Co. and Deere affiliated
independent Dealerships and technicians in the DRS Market for Deere
agricultural equipment from June 29, 2018 to the present.
John Deere is the biggest member of the agricultural machinery
market in the United States.[BN]
The Plaintiff is represented by:
Bryan J. O'Connor, Esq.
WHITESIDE & GOLDBERG, LTD.
155 N. Michigan Ave. - Suite 540
Chicago, IL 60601
Telephone: (312) 334-6875
Facsimile: (800) 334-6034
- and -
Ruth Rizkalla, Esq.
John Fabry, Esq.
THE CARLSON LAW FIRM, P.C.
1500 Rosecrans Avenue, Suite 500
Manhattan Beach, CA 90266
Telephone: (800) 359-5690
Facsimile: (254) 526-2325
- and -
William M. Audet, Esq.
Ling Y. Kuang, Esq.
Kurt D. Kessler, Esq.
AUDET & PARTNERS, LLP
711 Van Ness, Suite 500
San Francisco, CA 94102-3229
Telephone: (415) 568-2555
E-mail: waudet@audetlaw.com
lkuang@audetlaw.com
kkessler@audetlaw.com
ELYMAR RESTAURANT: Fails to Pay Proper Wages, De La Verriere Says
-----------------------------------------------------------------
JEANINE DE LA VERRIERE, individually and on behalf of all others
similarly situated, Plaintiff v. ELYMAR RESTAURANT CORPORATION;
ELYANE VASCHETTA (a/k/a Elyane Bruno); and WILLIAM WELLES,
Defendants, Case No. 1:22-cv-05700 (S.D.N.Y., July 5, 2022) seeks
to recover from the Defendants unpaid wages and overtime
compensation, interest, liquidated damages, attorneys' fees, and
costs under the Fair Labor Standards Act.
Plaintiff De la Verriere was employed by the Defendants as server.
ELYMAR RESTAURANT CORPORATION owns and operates a French
restaurant, known as "Chez Napoleon", located at New York, NY.
[BN]
The Plaintiff is represented by:
Jason Mizrahi, Esq.
Joshua Levin-Epstein, Esq.
LEVIN-EPSTEIN & ASSOCIATES, P.C.
60 East 42nd Street, Suite 4700
New York, NY 10165
Telephone: (212) 792-0048
Email: Jason@levinepstein.com
F.D. THOMAS: Cardenas Files Suit in Cal. Super. Ct.
---------------------------------------------------
A class action lawsuit has been filed against F.D. Thomas, Inc., et
al. The case is styled as Francisco Miguel Pena Cardenas, and
individual on behalf of himself and all others similarly situated
v. F.D. Thomas, Inc., Does 1-50, Case No.
34-2022-00322853-CU-OE-GDS (Cal. Super. Ct., Sacramento Cty., July
5, 2022).
The case type is stated as "Other Employment – Civil Unlimited."
F.D. Thomas (FDT) -- https://www.fdthomas.com/ -- is one of the
largest coating and specialty contractors in the U.S., with offices
in California, Oregon, Washington, and the East coast.[BN]
The Plaintiff is represented by:
Meghan Higday, Esq.
MELMED LAW GROUP P.C.
1801 Century Park E., Ste. 850
Los Angeles, CA 90067-2346
Phone: 310-612-2627
Email: mh@melmedlaw.com
FLAGSTAR BANCORP: Fails to Timely Detect Data Breach, Suit Alleges
------------------------------------------------------------------
ALLIE MCLAUGHLIN, on behalf of herself and all other similarly
situated v. FLAGSTAR BANCORP, INC., d/b/a FLAGSTAR BANK, a Michigan
corporation, and FLAGSTAR BANK, FSB, a Michigan-based federally
chartered bank, Case No. 2:22-cv-11470-MFL-CI (E.D. Mich., June 29,
2022) alleges that Flagstar's failed to timely detect and report
the Data Breach made its consumers vulnerable to identity theft
without any warnings to monitor their financial accounts or credit
reports to prevent unauthorized use of their personally
identifiable information (PII).
According to the complaint, Flagstar, a Michigan-based full-service
bank and mortgage originator with 150 national branches, lost
control over at least 1.5 million of its consumers' highly
sensitive personal information in a data breach ("Data Breach"),
and then failed to adequately notify victims about the breach.
The alleged Data Breach occurred between December 3 and 4, 2021. It
is unclear when Flagstar first discovered the Data Breach, but on
or around June 2, 2022, Flagstar's investigations revealed that
cybercriminals gained unauthorized access to consumers' PII stored
on Defendants' network. The stolen PII included, at least,
consumers' names, Social Security numbers, addresses, Tax ID
numbers, dates of birth, and financial account information and
numbers, says the suit.
On June 17, 2022 -- over six months after the Data Breach first
occurred -- Flagstar finally began notifying victims about the
breach (the "Breach Notice"). Flagstar's Breach Notice obfuscated
the nature of the breach and the threat it posed -- refusing to
tell its consumers how many people were impacted, how the breach
happened, or why it took so long for Flagstar to discover that
hackers had gained access to highly sensitive consumer information.
Worse yet, the Breach Notice deliberately underplayed the breach's
severity and misrepresented that "[Flagstar has] no evidence that
any of the information has been misused," even though Flagstar knew
cybercriminals had infiltrated its systems and stolen highly
sensitive nonpublic information, the suit added.
The Plaintiff, on her own behalf and on behalf of a class of
similarly situated individuals, brings this lawsuit seeking
injunctive relief, damages, and restitution, together with costs
and reasonable attorneys' fees, the calculation of which will be
based on information in Defendants' possession.
Flagstar Bancorp, Inc. operates as a savings and loan holding
company for Flagstar Bank, FSB that provides commercial and
consumer banking services.[BN]
The Plaintiff is represented by:
Nathan J. Fink, Esq.
FINK BRESSACK
38500 Woodward Ave, Suite 350
Bloomfield Hills, MI 48304
Telephone: (248) 971-2500
E-mail: nfink@finkbressack.com
- and -
Samuel Strauss, Esq.
Raina Borrelli, Esq.
TURKE & STRAUSS, LLP
613 Williamson Street, Suite 201
Madison, WI 53703
Telephone: (608) 237-1775
E-mail: Sam@turkestrauss.com
Raina@turkestrauss.com
FRIAR TUX SHOP: Zinnamon Files ADA Suit in S.D. New York
--------------------------------------------------------
A class action lawsuit has been filed against Friar Tux Shop. The
case is styled as Warren Zinnamon, on behalf of himself and all
others similarly situated v. Friar Tux Shop, Case No. 1:22-cv-05719
(S.D.N.Y., July 5, 2022).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Friar Tux Shop -- https://www.friartux.com/ -- is Southern
California and Las Vegas's premier provider of suits and tuxedos
for weddings, quinceañeras, and proms.[BN]
The Plaintiff is represented by:
Mark Rozenberg, Esq.
STEIN SAKS, PLLC
One University Plaza, Ste. 620
Hackensack, NJ 07601
Phone: (201) 282-6500
Email: mrozenberg@steinsakslegal.com
FUNKO INC: Fletcher Sues Over Stock's Artificially Inflated Prices
------------------------------------------------------------------
RICHARD FLETCHER, derivatively on behalf of FUNKO, INC., Plaintiff
v. BRIAN MARIOTTI, JENNIFER FALL JUNG, RUSSELL NICKEL, GINO
DELLOMO, MICHAEL LUNSFORD, CHARLES DENSON, ADAM KRIGER, KEN
BROTMAN, SARAH KIRSHBAUM LEVY, and DIANE IRVINE, Defendants, Case
No. 1:20-cv-01031-UNA (D. Del., July 5, 2022) is a verified
stockholder derivative complaint against the Defendants for
breaches of fiduciary duty, unjust enrichment, insider selling, and
violations of Sections 10(b) and 20(a) of the Securities Exchange
Act of 1934.
According to the complaint, the Defendants made materially false
and/or misleading statements, as well as failed to disclose
material adverse facts about Funko's business, operations, and
prospects in order to trade Funko stock at artificially inflated
prices from August 8, 2019 through the present. Specifically, the
Defendants failed to disclose to the market, inter alia, that: (i)
the company was experiencing lower than expected sales; (ii)
consequently, the company was reasonably likely to incur a
write-down for slower moving inventory; and (iii) as a result of
the foregoing, the Defendants' positive statements about the
company's business, operations, and prospects were materially false
and misleading, says the suit.
When the truth emerged, Funko's share price fell from $27.89 to
$6.92 on March 6, 2020. As a result of the Defendants' actions,
Funko's market capitalization has been substantially damaged,
losing approximately $730 million in value, the suit alleges.
Funko, Inc. is a toy manufacturer, with principal executive offices
located at 2802 Wetmore Avenue, Everett, Washington. [BN]
The Plaintiff is represented by:
Jeremy A. Lieberman, Esq.
Cara David, Esq.
POMERANTZ LLP
600 Third Ave., 20th Fl.
New York, NY 10016
Telephone: (212) 661-1100
E-mail: jalieberman@pomlaw.com
cdavid@pomlaw.com
- and –
Jennifer Pafiti, Esq.
POMERANTZ LLP
1100 Glendon Avenue, 15th Floor
Los Angeles, CA 90024
Telephone: (310) 405-7190
E-mail: jpafiti@pomlaw.com
- and –
Stanley D. Bernstein, Esq.
Stephanie Beige, Esq.
Laurence J. Hasson, Esq.
Peter J. Harrington, Esq.
BERNSTEIN LIEBHARD LLP
10 East 40th Street
New York, NY 10016
Telephone: (212) 779-1414
Facsimile: (212) 779-3218
E-mail: bernstein@bernlieb.com
beige@bernlieb.com
lhasson@bernlieb.com
pharrington@bernlieb.com
- and –
Peretz Bronstein, Esq.
BRONSTEIN, GEWIRTZ & GROSSMAN, LLC
60 East 42nd Street, Suite 4600
New York, NY 10165
Telephone: (212) 697-6484
E-mail: peretz@bgandg.com
GENTLEMAN'S GURU: Zinnamon Files ADA Suit in S.D. New York
----------------------------------------------------------
A class action lawsuit has been filed against Gentleman's Guru,
LLC. The case is styled as Warren Zinnamon, on behalf of himself
and all others similarly situated v. Gentleman's Guru, LLC, Case
No. 1:22-cv-05718 (S.D.N.Y., July 5, 2022).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Gentleman's Guru -- https://www.gentlemansguru.com/ -- offers the
latest styles in men's formal wear and accessories.[BN]
The Plaintiff is represented by:
Mark Rozenberg, Esq.
STEIN SAKS, PLLC
One University Plaza, Ste. 620
Hackensack, NJ 07601
Phone: (201) 282-6500
Email: mrozenberg@steinsakslegal.com
GOOGLE LLC: Violates Equal Pay Act, Haggan Class Action Suit Says
-----------------------------------------------------------------
SHEREE HAGGAN and EMI NIETFELD, on behalf of themselves and all
others similarly-situated, v. GOOGLE LLC, Case No. 518739/2022
(N.Y. Sup., Kings Cty., June 29, 2022) is a class action lawsuit
alleging violations of the Equal Pay Act of 1963, Title VII of the
Civil Rights Act of 1964, the New York’s Equal Pay Law and the
New York State Human Rights Law.
Plaintiff Haggan was hired as a Level 2 and was a Level 3 at the
time of her constructive termination. Plaintiff Nietfeld is a white
woman who resides in New York. Nietfeld was employed by Google LLC
as a Software Engineer in Google's California office from August
2015 to February 2017, and in Google's New York office from
February 2019 until she was constructively terminated from Google
in November 2019.
Google is one of the largest companies currently operating in the
technology industry. Google maintains offices throughout the United
States, including in New York, and in Latin America, Canada, Asia
and Africa.[BN]
The Plaintiffs are represented by:
Cara E. Greene, Esq.
Adam T. Klein, Esq.
Nantiya Ruan, Esq.
Michael C. Danna, Esq.
Shira S. Gelfand, Esq.
OUTTEN & GOLDEN LLP
685 Third Avenue, 2 th Floor
New York, NY 1001
Telephone: (212) 245-1000
- and -
Jahan C. Sagafi, Esq.
One California Street, 12th Floor
San Francisco, CA 94111
Telephone: (415) 638-8800
- and -
Chris Baker, Esq.
Deborah Schwartz, Esq.
BAKER CURTIS AND SCHWARTZ, P.C.
One California Street, Suite 1250
San Francisco, CA 94111
Telephone: (415) 433-1064
Facsimile: (415) 366-2525
- and -
Maya S. Jumper, Esq.
ROCHE FREEDMAN LLP
99 Park Avenue, Suite 1910
New York, NY 10016
Telephone: (646) 970-752
GQ SOLUTIONS: Faces Ulery Suit Over Illegal Telemarketing Calls
---------------------------------------------------------------
DAVID ULERY, individually and on behalf of all others similarly
situated, Plaintiff v. GQ SOLUTIONS, LLC, Defendants, Case No.
1:22-cv-01581 (D. Colo., June 27, 2022) seeks damages, injunctive
relief, and any other available legal or equitable remedies,
resulting from the illegal actions of Defendant in negligently or
willfully contacting Plaintiff on his cellular telephone, in
violation of the Telephone Consumer Protection Act.
According to the complaint, the Defendant and/or its agents placed
thousands of nonconsensual, automated or prerecorded calls to
Plaintiff and other consumers' telephone numbers nationwide using
an automatic telephone dialing system in the course of promoting
and selling its services.
The Plaintiff and each Class Member received unwanted telephone
robocalls from Defendant without proper regard to the TCPA, the
National Do-Not-Call Registry Rules, and in disregard for
individual privacy, says the suit.
GQ Solutions, LLC is an auto warranty company and/or a marketer or
seller of auto warranties.[BN]
The Plaintiff is represented by:
Jordan Richards, Esq.
JORDAN RICHARDS, PLLC
1800 Southeast 10th Ave., Suite 205
Fort Lauderdale, FL 33316
Telephone: (954) 871-0050
E-mail: Jordan@jordanrichardspllc.com
- and -
Joshua H. Eggnatz, Esq.
EGGNATZ | PASCUCCI
7450 Griffin Road, Suite 230
Davie, FL 33314
Telephone: (954) 889-3359
E-mail: JEggnatz@JusticeEarned.com
HAIN CELESTIAL: Green Sues Over Earth's Best Infant Formulas' Label
-------------------------------------------------------------------
CALLIE GREEN, individually and on behalf of all others similarly
situated, Plaintiff v. THE HAIN CELESTIAL GROUP, INC., Defendant,
Case No. 3:22-cv-03931 (N.D. Cal., July 5, 2022) is a class action
against the Defendant for breach of express and implied warranties,
for intentional and negligent misrepresentation, unjust enrichment,
and violations of the California Civil Code and the California's
Business and Professions Code.
The case arises from the Defendant's alleged false, deceptive, and
misleading advertising, labeling, and marketing of Earth's Best
Infant Formulas. The Defendant represents that the product can make
58 4 fl. oz. bottles with a picture of a baby bottle and the
statement "50% MORE." However, the back-label of the product
explains the directions for preparation and use which only yields
52 4-oz. bottles, not 58. The Plaintiff seeks to enjoin Hain
Celestial from continuing to falsely advertise the Earth's Best
Powder Formulas in this manner, and to recover restitution and
damages for herself and other purchasers, says the suit.
The Hain Celestial Group, Inc. is a manufacturer of baby food
products, with its principal place of business in Lake Success, New
York. [BN]
The Plaintiff is represented by:
Jack Fitzgerald, Esq.
Paul K. Joseph, Esq.
Melanie Persinger, Esq.
Trevor M. Flynn, Esq.
Caroline S. Emhardt, Esq.
FITZGERALD JOSEPH LLP
2341 Jefferson Street, Suite 200
San Diego, CA 92110
Telephone: (619) 215-1741
E-mail: jack@fitzgeraldjoseph.com
paul@fitzgeraldjoseph.com
melanie@fitzgeraldjoseph.com
trevor@fitzgeraldjoseph.com
caroline@fitzgeraldjoseph.com
HEALTHNET OF CALIFORNIA: Faces Ahchong Wage-and-Hour Suit in Cal.
-----------------------------------------------------------------
JOSIE AHCHONG, individually and on behalf of all others similarly
situated, Plaintiff v. HEALTHNET OF CALIFORNIA INC.; KELLY SERVICES
USA, LLC; and DOES 1-50, inclusive, Defendants, Case No.
30-2022-01268297-CU-OE-CXC-ROA (Cal. Super., Orange Cty., July 5,
2022) is a class action against the Defendants for violations of
California Labor Code including failure to accurately pay wages
including overtime wages, failure to provide meal periods or
provide payment in lieu thereof, failure to provide rest breaks or
provide payment in lieu thereof, failure to pay all wages earned
and owed upon separation from employment, and failure to provide
accurate itemized wage statements.
The Plaintiff was employed by the Defendants as a customer service
representative from 2014 until May 2021.
Healthnet of California Inc. is a healthcare provider that
maintains call centers in Huntington Beach, California.
Kelly Services USA, LLC is a staffing agency in California. [BN]
The Plaintiff is represented by:
James R. Hawkins, Esq.
Gregory Mauro, Esq.
Michael Calvo, Esq.
Lauren Falk, Esq.
Ava Issary, Esq.
JAMES HAWKINS APLC
9880 Research Drive, Suite 200
Irvine, CA 92618
Telephone: (949) 387-7200
Facsimile: (949) 387-6676
E-mail: James@jameshawkinsaplc.com
Greg@jameshawkinsaplc.com
Michael@jameshawkinsaplc.com
Lauren@jameshawkinsaplc.com
Ava@jameshawkinsaplc.com
HERALD EAST: Zinnamon Files ADA Suit in S.D. New York
-----------------------------------------------------
A class action lawsuit has been filed against Herald East, Inc. The
case is styled as Warren Zinnamon, on behalf of himself and all
others similarly situated v. Herald East, Inc. d/b/a Suits Outlets,
Case No. 1:22-cv-05720 (S.D.N.Y., July 5, 2022).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Herald East, Inc. is doing business as Suits Outlets --
https://suitsoutlets.com/ -- is a leading men's fashion platform
offering men's suits, shirts, shoes and accessories with true
craftsmanship.[BN]
The Plaintiff is represented by:
Mark Rozenberg, Esq.
STEIN SAKS, PLLC
One University Plaza, Ste. 620
Hackensack, NJ 07601
Phone: (201) 282-6500
Email: mrozenberg@steinsakslegal.com
HOME DEPOT: Faces Mathews Class Suit Over Breach of Contract
------------------------------------------------------------
DARIN MATHEWS, individually and on behalf of all others similarly
situated v. HOME DEPOT USA, INC., Case No. 1:22-cv-02605-ELR (N.D.
Ga., June 29, 2022) is a nation-wide class action lawsuit by
Plaintiff, individually, and on behalf of a putative class and
subclasses of persons who rented tools from Home Depot pursuant to
the form contract and who elected and paid for "Damage Protection"
under the Contract.
According to the complaint, under the Contract, if a customer rents
a tool from Home Depot and the tool is damaged during the rental,
the contract requires Home Depot, and not the customer, to cover
the cost of repair or replacement of the damaged tool if the
customer pays an extra 15% of the tool rental fee to purchase
Damage Protection, and the damage is not caused by "theft, abuse,
or intentional acts."
The Plaintiff asserts that Home Depot is in breach of the contract
because only tool damage caused by "theft abuse, or intentional
acts" is excluded from coverage, yet in practice Home Depot's
Damage Protection excludes all "damage" and only covers "normal
wear and tear".
In the alternative to breach of contract, a unilateral mistake by
Home Depot in its drafting of the Contract renders the entirety of
the Damage Protection of the Contract meaningless and illusory and
incapable of being enforced by a customer. Accordingly, Plaintiff
brings claims for rescission and return of all for all Damage
Protection fees and associated sales taxes paid by members of the
Class, as well as other damages, says the suit.
On July 17, 2021, the Plaintiff rented a Drain Camera from the Home
Depot store number 0580 Windsor Park, located at 4909 Windsor Hill,
San Antonio, Texas. The Drain Camera was due to be rented for four
hours, and was due to be returned to the Windsor Park Home Depot
that same day, July 17, 2021, at 3:33 p.m. A Drain Camera is a
snake-like device with a camera at one end that allows its user to
execute complete inspection of pipes and drains.
Home Depot is an American multinational home improvement retail
corporation that sells tools, construction products, appliances,
and services.[BN]
The Plaintiff is represented by:
Bradley W. Pratt, Esq.
PRATT CLAY LLC
4401 Northside Parkway, Suite 520
Atlanta, GA 30327
Telephone: (404) 949-8118
E-mail: bradley@prattclay.com
- and -
John A. Lockett, III, Esq.
Benjamin J. Warlick, Esq.
THE LOCKETT LAW FIRM LLC
1397 Carroll Drive
Atlanta, Georgia 30318
Telephone: (404) 806-7448
E-mail: john@lockettlawfirm.com
ben@lockettlawfirm.com
HORNBLOWER CRUISES: Vanantwerp Seeks to Recover Cooks' Unpaid Wages
-------------------------------------------------------------------
Tony Vanantwerp, on behalf of himself and others similarly situated
in this proposed collective action, Plaintiff v. Hornblower Cruises
and Events, LLC, Defendant, Case No. 1:22-cv-05445 (S.D.N.Y., June
27, 2022) is brought against the Defendant seeking to recover
Plaintiff's unpaid minimum wages, unlawful deductions, liquidated
and statutory damages, pre- and post-judgment interest, and
attorneys' fees and costs pursuant to the Fair Labor Standards Act,
the New York Labor Law, and supporting New York State Department of
Labor regulations.
Plaintiff Vanantwerp was employed as a cook at Defendant's cruise
line known as "Hornblower Cruises" from July 15, 2021 to June 15,
2022.
Hornblower Cruises and Events, LLC offers day cruises and
sight-seeing tours.[BN]
The Plaintiff is represented by:
Joshua Levin-Epstein, Esq.
Jason Mizrahi, Esq.
LEVIN-EPSTEIN & ASSOCIATES, P.C.
60 East 42nd Street, Suite 4700
New York, NY 10165
Telephone: (212) 792-0046
E-mail: Joshua@levinepstein.com
HOST INTERNATIONAL: Schroeder Wage-and-Hour Suit Goes to C.D. Cal.
------------------------------------------------------------------
The case styled KARLA SCHROEDER, on behalf of herself and all
others similarly situated v. HOST INTERNATIONAL, INC.; DIANA
FLORES; and DOES 1 through 50, inclusive, Case No. 20STCV37525, was
removed from the Superior Court of the State of California for the
County of Los Angeles to the U.S. District Court for the Central
District of California on July 5, 2022.
The Clerk of Court for the Central District of California assigned
Case No. 2:22-cv-04572 to the proceeding.
The case arises from the Defendant's alleged violations of the Fair
Labor Standards Act, the California Labor Code, and the
California's Business and Professions Code including failure to pay
all wages due upon ending of employment, failure to provide
accurate itemized wage statements, failure to provide meal periods,
failure to provide rest breaks, failure to pay overtime wages,
failure to pay minimum wages, failure to timely pay wages during
employment, failure to reimburse business expenses, failure to
provide payroll records, and unfair business practices.
Host International, Inc. is a provider of catering services,
headquartered in Bethesda, Maryland. [BN]
The Defendant is represented by:
Margaret Rosenthal, Esq.
Vartan S. Madoyan, Esq.
Jennifer F. Delarosa, Esq.
BAKER & HOSTETLER LLP
11601 Wilshire Boulevard, Suite 1400
Los Angeles, CA 90025-0509
Telephone: (310) 820-8800
Facsimile: (310) 820-8859
E-mail: mrosenthal@bakerlaw.com
vmadoyan@bakerlaw.com
jdelarosa@bakerlaw.com
IDOLOGY INC: Dover Suit Removed to N.D. Illinois
------------------------------------------------
The case styled as R.S., a Minor, by and through her Guardian SARAH
DOVER, individually and on behalf of all similarly situated
individuals v. Idology, Inc., Case No. 2022 LA 000252 was removed
from the Twelfth Judicial Circuit, Will County, Illinois, to the
U.S. District Court for the Northern District of Illinois on July
5, 2022.
The District Court Clerk assigned Case No. 1:22-cv-03479 to the
proceeding.
The nature of suit is stated as Other Labor.
IDology -- https://www.idology.com/ -- offers real-time, on-demand
identity verification and fraud prevention solutions for
organizations operating in the digital environment.[BN]
The Plaintiff appears pro se.
The Defendant is represented by:
Corey Thomas Hickman, Esq.
COZEN O'CONNOR
123 N. Wacker Drive, Suite 1800
Chicago, IL 60606
Phone: (312) 382-3100
Email: chickman@cozen.com
INOTIV INC: Bernstein Liebhard Reminds of August 22 Deadline
------------------------------------------------------------
Bernstein Liebhard LLP, a nationally acclaimed investor rights law
firm, reminds investors of the deadline to file a lead plaintiff
motion in a securities class action lawsuit that has been filed on
behalf of investors who purchased or acquired the publicly-traded
securities of Inotiv, Inc. ("Inotiv" or the "Company") (NASDAQ:
NOTV) between September 21, 2021 and June 13, 2022, inclusive (the
"Class Period"). The lawsuit was filed in the United States
District Court for the Northern District of Indiana and alleges
violations of the Securities Exchange Act of 1934.
Inotiv is a contract research organization which provides, among
other things, nonclinical and analytical drug discovery and
development services. On September 21, 2021, Inotiv announced the
acquisition of Envigo RMS, LLC ("Envigo"), which acquisition it
completed on November 5, 2021.
Plaintiff alleges that Defendants made materially false and
misleading statements throughout the Class Period. Specifically,
Plaintiff alleges that Defendants failed to disclose that: (1)
Envigo and Inotiv's Cumberland, Virginia facility (the "Cumberland
Facility") engaged in widespread and flagrant violations of the
Animal Welfare Act ("AWA"); (2) Envigo and Inotiv did not properly
remedy issues with regards to animal welfare at the Cumberland
Facility; (3) as a result, Inotiv was likely to face increased
scrutiny and governmental action; (4) Inotiv would imminently shut
down two facilities, including the Cumberland Facility; and (5)
Inotiv did not engage in proper due diligence.
On May 20, 2022, after market hours, Inotiv filed a Form 8-K with
the SEC that stated that on May 18, 2022, the Department of
Justice, together with federal and state law enforcement agents,
executed a search and seizure warrant on the Cumberland, Virginia
facility. Subsequently, on May 19, 2022, a complaint was filed
against Envigo in the U.S. District Court for the Western District
of Virginia. alleging violations of the Animal Welfare Act at the
Cumberland, Virginia facility.
On this news, the Company's share price fell $5.19 per share, or
28%, to close at $13.14 per share on May 23, 2022.
Then, on June 13, 2022, after trading hours, Inotiv issued a press
release entitled "Inotiv, Inc. Announces Site Closures and
Consolidation Plans." The release announced the closure of two
Envigo facilities in Virginia - a purpose-bred canine facility in
Cumberland and a rodent breeding facility in Dublin - as part of
restructuring activities following its acquisition of Envigo in
November 2021.
On this news, the Company's share price fell $0.25 per share, or
2%, to close at $12.78 per share on June 14, 2022.
If you wish to serve as lead plaintiff, you must move the Court no
later than August 22, 2022. A lead plaintiff is a representative
party acting on behalf of other class members in directing the
litigation. Your ability to share in any recovery doesn't require
that you serve as lead plaintiff. If you choose to take no action,
you may remain an absent class member.
If you purchased NOTV securities, and/or would like to discuss your
legal rights and options please visit Inotiv, Inc. Shareholder
Class Action Lawsuit or contact Peter Allocco at (212) 951-2030 or
pallocco@bernlieb.com.
Since 1993, Bernstein Liebhard LLP has recovered over $3.5 billion
for its clients. In addition to representing individual investors,
the Firm has been retained by some of the largest public and
private pension funds in the country to monitor their assets and
pursue litigation on their behalf. As a result of its success
litigating hundreds of lawsuits and class actions, the Firm has
been named to The National Law Journal's "Plaintiffs' Hot List"
thirteen times and listed in The Legal 500 for ten consecutive
years.
Contact:
Peter Allocco
Bernstein Liebhard LLP
https://www.bernlieb.com
(212) 951-2030
pallocco@bernlieb.com[GN]
J.M. SMUCKER: Peanut Butter Contaminated With Salmonella, Suit Says
-------------------------------------------------------------------
JOE PISCIOTTI, individually, and on behalf of all others similarly
situated, v. THE J.M. SMUCKER COMPANY, Case No. 5:22-cv-01151-SL
(N.D. Ohio, June 29, 2022) is a consumer class action arises out of
the Defendant's unlawful and unreasonable conduct directly causing
a Salmonella outbreak impacting potentially thousands of U.S.
consumers who purchased and/or consumed certain lots of Jif peanut
butter.
On May 20, 2022, Defendant announced that it was "recalling select
Jif(R) peanut butter products sold in the U.S. due to potential
salmonella contamination." "The recalled peanut butter was
distributed nationwide in retail stores and other outlets" and
include the lot codes 1274425–2140425. Also on May 20, 2022, the
Food and Drug Administration ("FDA") published "Outbreak
Investigation of Salmonella: Peanut Butter (May 2022)."
Accordingly, Plaintiff brings this suit on behalf of himself and
the Class of similarly situated individuals for out-of-pocket
losses, compensation, personal injuries, medical and healthcare
bills, emotional distress, pain and suffering, and all other relief
to which they are lawfully entitled, resulting from Defendant's
sale of the Contaminated Products, says the suit.
The Contaminated Products are present throughout the United States.
The first reported case of Salmonellosis from the Contaminated
Products occurred in February 20, 2022. Given the rapidly
developing story, cases are likely occurring as of the filing of
this complaint, the suit added.
The Defendant manufactures, distributes, advertises, markets, and
sells Jif peanut butter. There are many sizes and varieties of Jif
available.[BN]
The Plaintiff is represented by:
Marc E. Dann, Esq.
Brian D. Flick, Esq.
Michael A. Smith, Jr., Esq.
DANN LAW
15000 Madison Avenue
Lakewood, OH 44107
Telephone: (216) 373-0539
Facsimile: (216) 373-0536
E-mail: notices@dannlaw.com
- and -
Thomas A. Zimmerman, Jr., Esq.
Sharon A. Harris, Esq.
Matthew C. De Re, Esq.
Jeffrey D. Blake
ZIMMERMAN LAW OFFICES , P.C.
www.attorneyzim.com
77 W. Washington Street, Suite 1220
Chicago, IL 60602
Telephone: (312) 440-0020
Facsimile: (312) 440-4180
E-mail: tom@attorneyzim.com
sharon@attorneyzim.com
matt@attorneyzim.com
jeff@attorneyzim.com
JAXON LANE INC: Cordero Files ADA Suit in S.D. New York
-------------------------------------------------------
A class action lawsuit has been filed against Jaxon Lane, Inc. The
case is styled as Rafael Cordero, individually, and on behalf of
all others similarly situated v. Jaxon Lane, Inc., Case No.
1:22-cv-05706 (S.D.N.Y., July 5, 2022).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Jaxon Lane -- https://jaxonlane.com/ -- is a California-based
skincare brand offering products are designed in California, and
made in Korea.[BN]
The Plaintiff is represented by:
Edward Y. Kroub, Esq.
MIZRAHI KROUB LLP
200 Vesey Street
New York, NY 10281
Phone: (212) 595-6200
Email: ekroub@mizrahikroub.com
JET DELIVERY: Lynch Files Suit in Cal. Super. Ct.
-------------------------------------------------
A class action lawsuit has been filed against Jet Delivery, Inc.,
et al. The case is styled as Kayla Lynch, on behalf of other
members of the general public similarly situated, and on behalf of
aggrieved employees pursuant to the Private Attorneys General Act
of 2004 v. Jet Delivery, Inc., Jet Delivery LLC, Does 1-10, Case
No. 34-2022-00322822-CU-OE-GDS (Cal. Super. Ct., Sacramento Cty.,
July 5, 2022).
The case type is stated as "Other Employment – Civil Unlimited."
Jet Delivery -- https://www.jetdelivery.com/ -- specializes in
providing nationwide same day courier delivery, messenger service
on a local and national basis.[BN]
The Plaintiff is represented by:
Douglas Han, Esq.
JUSTICE LAW CORPORATION
751 N Fair Oaks Ave, Ste. 101
Pasadena, CA 91103-3069
Phone: (818) 230-7502
Fax: (818) 230-7259
Email: dhan@justicelawcorp.com
JK&T WINGS: Fails to Provide Proper OT Wages, Simpson Claims
------------------------------------------------------------
DOUGLAS SIMPSON, individually and on behalf of all similarly
situated individuals, Plaintiff v. JK&T WINGS, INC., Defendant,
Case No. 2:22-cv-11435-RHC-APP (E.D. Mich., June 27, 2022) is a
collective and class action brought by the Plaintiff under the Fair
Labor Standards Act and the Improved Workforce Opportunity Wage Act
for unpaid overtime wages, liquidated damages, prejudgment
interest, attorneys' fees, and other relief against the Defendant.
The Plaintiff was employed from October 2020 through June 2022 at
the restaurants located in Farmington Hills, Michigan, and Canton,
Michigan owned and operated by the Defendant. The Plaintiff
performed non-managerial tasks most of the time, including checking
on patrons, serving patrons, bussing tables and working as a
cashier.
JK&T Wings, Inc. is a domestic profit corporation and franchisee
that owns and operates more than 80 Buffalo Wild Wing
restaurants.[BN]
The Plaintiff is represented by:
Noah S. Hurwitz, Esq.
Grant M. Vlahopoulos, Esq.
Kara F. Krause, Esq.
HURWITZ LAW PLLC
617 Detroit St., Ste. 125
Ann Arbor, MI 48104
Telephone: (844) 487-9489
E-mail: noah@hurwitzlaw.com
grant@hurwitzlaw.com
kara@hurwitzlaw.com
KENNETH COLE: Lawal Files ADA Suit in S.D. New York
---------------------------------------------------
A class action lawsuit has been filed against Kenneth Cole
Productions, Inc. The case is styled as Rafia Lawal, on behalf of
herself and all others similarly situated v. Kenneth Cole
Productions, Inc., Case No. 1:22-cv-05710 (S.D.N.Y., July 5,
2022).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Kenneth Cole Productions, Inc. -- https://www.kennethcole.com/ --
is an American fashion house that was founded in 1982 by Kenneth
Cole and Sam Edelman.[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
LIFE SPECTACULAR: Cordero Files ADA Suit in S.D. New York
---------------------------------------------------------
A class action lawsuit has been filed against Life Spectacular,
Inc. The case is styled as Rafael Cordero, individually, and on
behalf of all others similarly situated v. Life Spectacular, Inc.,
Case No. 1:22-cv-05708 (S.D.N.Y., July 5, 2022).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Life Spectacular doing business as PROVEN Skincare --
https://www.provenskincare.com/ -- is a private company that
develops, produces and distributes skincare products.[BN]
The Plaintiff is represented by:
Edward Y. Kroub, Esq.
MIZRAHI KROUB LLP
200 Vesey Street
New York, NY 10281
Phone: (212) 595-6200
Email: ekroub@mizrahikroub.com
MARYLAND: Gibson Sues Over Preservation of Voting Fraud Evidence
----------------------------------------------------------------
LOIS ANN GIBSON, a Private Citizen/Voter; MARYLAND 20-20 WATCH, a
Private Unincorporated Association of Maryland Citizens and Voters;
AMICUS CURIAE, Charlton Scientific Educational and Engineering
Foundation, Inc.; and a Committee of Injured Citizen/Voters, on
behalf of themselves and all others similarly situated, Plaintiffs
v. FREDERICK COUNTY, MARYLAND; HOWARD COUNTY, MARYLAND; and CARROLL
COUNTY, MARYLAND, Defendants, Case No. 1:22-cv-01642-GLR (D. Md.,
July 5, 2022) is a class action against the Defendants for alleged
voting fraud in Maryland during the 2020 federal election.
The case seeks to investigate the pattern of alleged fraud during
the 2020 federal election, particularly in three counties in
Maryland, and attempts to invoke the power of the court to correct
the corrupted voting system. The Plaintiffs request a temporary
restraining order to protect all evidence and related documents
from destruction; and permission to immediately conduct several
depositions, says the suit.
Frederick, Howard and Carroll are counties located in Maryland.
[BN]
The Plaintiffs are represented by:
Walter T. Charlton, Esq.,
WALTER T. CHARLTON & ASSOCIATES
11213 Angus Way
Woodsboro, MD 21798
Telephone: (410) 571-8764
E-mail: charltonwt@comcast.net
MEGAN RING: Hardy Files Suit in D. Colorado
-------------------------------------------
A class action lawsuit has been filed against Megan Ring, et al.
The case is styled as Ralph Hardy, and those similarly situated
under the jurisdiction of the state of Colorado criminal justice
system v. Megan Ring, Brian Mason, Richard Reigenborn, Case No.
1:22-cv-01666-GPG (D. Colo., July 5, 2022).
The nature of suit is stated as Prisoner Civil Rights.
Megan Ring stepped into the role of Colorado state public defender
on Aug. 1, 2018. She is the first woman to hold the position in
Colorado.[BN]
The Plaintiff appears pro se.
MORRIS NATIONAL: Cordero Files ADA Suit in S.D. New York
--------------------------------------------------------
A class action lawsuit has been filed against Morris National, Inc.
The case is styled as Rafael Cordero, individually, and on behalf
of all others similarly situated v. Morris National, Inc., Case No.
1:22-cv-05697 (S.D.N.Y., July 5, 2022).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Morris National -- https://www.morrisnational.com/ -- is an
importer that distributes confectionery, specialty food and gift
packs.[BN]
The Plaintiff is represented by:
Edward Y. Kroub, Esq.
MIZRAHI KROUB LLP
200 Vesey Street
New York, NY 10281
Phone: (212) 595-6200
Email: ekroub@mizrahikroub.com
NORTHSIDE ISD: Bid for Summary Judgment in Lartigue Suit Denied
---------------------------------------------------------------
In the case, KAYLEE LARTIGUE, Plaintiffs v. NORTHSIDE INDEPENDENT
SCHOOL DISTRICT, Defendant, Case No. SA-19-CV-00393-JKP (W.D.
Tex.), Judge Jason Pulliam of the U.S. District Court for the
Western District of Texas, San Antonio Division, denies the
Defendant's Motion for Summary Judgment.
I. Background
Before the Court is a Motion for Summary Judgment filed by
Defendant Northside Independent School District (NISD). The Court
held this Motion in abeyance pending mediation with Magistrate
Judge Henry J. Bemporad. On June 22, 2022, Judge Bemporad advised
the Court the parties failed to settle. The Motion is now ripe for
ruling.
The action was initiated as a putative class action brought by
parents of students with hearing impairments who attended NISD
schools. Jose and Linda Lartigue moved to sever their case and
opt-out of the class action on behalf of their daughter, Kaylee
Lartigue, because she no longer attended an NISD school. All other
plaintiffs settled with NISD and dismissed their cases, and
Lartigue is the sole remaining Plaintiff. The Court issued a
Memorandum Opinion and Order on March 23, 2021, granting in part
and denying in part NISD's Motion to Dismiss. Pursuant to that
Order, only Lartigue's claim under Title II of the Americans with
Disabilities Act (ADA) remains. In her Third Amended Complaint,
which is the live pleading, Lartigue updated the caption to reflect
her new status as an adult and amended her requested remedies.
According to her complaint, Lartigue, who is deaf and hearing
impaired, received special education services while attending
NISD's Science & Engineering Academy. Persons who are deaf and
hearing impaired must actively work to both receive and send
communications. Consequently, cognitive fatigue is common in
students with hearing impairments. Because Lartigue can hear with
the assistance of a hearing aid, she alleges she must work "that
much harder" to concentrate and her cognitive fatigue eventually
impacted her educationally, socially, physically, and emotionally.
A dedicated quiet space to study at school (as opposed to spaces --
like the cafeteria -- with sounds and stimuli) would have helped,
but Lartigue alleges NISD refused to provide such a space.
Ms. Lartigue's Individualized Educational Plan (IEP) included
sign-language interpreting services; auditory impaired (AI)
counseling services for forty-five minutes a month to address
self-advocacy and coping abilities; specialized transportation
services; a transition plan to set specific post-high school goals;
and consultative itinerant support from an AI certified teacher to
help coordinate all the above. Lartigue alleges she never received
such services.
Further, Lartigue alleges her peers met with their counselors
privately, while her counselor met with her in the hall and for a
limited amount of time. Lartigue's peers attending the Regional
School for the Deaf participated in group counseling. As the only
AI student at the Academy, Lartigue did not have the same
opportunity. Lartigue alleges she experienced loneliness and social
isolation at the Academy because none of her classmates or teachers
could communicate with her in sign language. With no interpreter on
the bus, Lartigue alleges she panicked during an emergency. With no
flashing lights at school, she alleges she did not know when an
emergency had been called.
Additionally, Lartigue alleges NISD failed to provide equal access
to academic and non-academic services by refusing to provide
Communication Access Realtime Translation Services (CARTS) so she
could participate in a University Interscholastic League (UIL)
competition called Congress. Lartigue alleges she was not given a
copy of class notes before each class, even though NISD
acknowledged these were necessary both to Lartigue's IEP goals and
her receiving a free and appropriate public education (FAPE).
Further, Lartigue alleges failure to provide closed-captioning for
all films and videos shown in class and two sign-language
interpreters at all times negatively impacted her educational,
physical, and neurological needs.
Ms. Lartigue alleges she attended School Board meetings on four
separate occasions where she advocated for change. Specifically,
Lartigue alleges she requested NISD highlight successful deaf or
hard of hearing students in the same way they highlighted
successful hearing students; NISD encourage a mentoring program for
deaf students, help support the younger generation of deaf
students, and offer American Sign Language (ASL) as a foreign
language; and NISD ensure closed captioning was included in all
NISD videos whether presented in school or at NISDsponsored public
events. Lartigue alleges the Special Education Director promised a
mentoring program that was never realized and the Board did not
respond to her other requests.
In summary, Lartigue alleges NISD failed to provide the following:
(1) two interpreters at all times; (2) closed captioning for films
and educational materials in class; (3) specialized consultative
itinerant services to coordinate academic and non-academic needs;
(4) private counseling; and (5) CART services. She further alleges
NISD failed to respond to her cognitive fatigue, her feelings of
isolation, and her inability to communicate with her peers.
Lartigue alleges as a result of NISD's indifference to her needs;
her cognitive fatigue, loneliness, and social isolation; and the
academic rigors of the Academy, she began having panic attacks and
ultimately left school.
II. Discussion
NISD moves for summary judgment on the basis of three theories:
administrative exhaustion, collateral estoppel, and insufficient
evidence of NISD's refusal to provide services.
A. Administrative Exhaustion
NISD argues Latrigue's ADA claim is improper because a plaintiff
who sues a school district seeking relief that is also available
under the Individuals with Disabilities Act (IDEA) must first meet
IDEA's administrative exhaustion requirements, and Latrigue has
failed to do so. Latrigue avers she has met IDEA's administrative
exhaustion requirements.
The parties do not dispute that Latrigue pursued a due process
hearing on her IDEA claim before a Special Education Hearing
Officer for the State of Texas, which was held on Aug. 21 to 22,
2019. The question is whether she had to appeal the Hearing
Officer's decision to meet IDEA's exhaustion requirement.
Judge Pulliam holds that the fact that Texas does not provide an
opportunity to appeal a hearing officer's decision to the state
education agency does not impose an additional burden on Latrigue
to appeal in state or federal court. To the contrary, it simply
means that she has exhausted her administrative remedies by
pursuing the one opportunity for relief that the state provides, a
due process hearing. For this reason, NISD is not entitled to
summary judgment on administrative exhaustion grounds.
B. Collateral Estoppel
NISD alleges Latrigue's "collateral attack" on the findings of the
due process hearing officer are barred by the collateral estoppel
doctrine. Latrigue asserts the collateral estoppel doctrine does
not apply because the issues in the case are fundamentally
different from those considered in the due process hearing.
Judge Pulliam finds that the legal standards applied by the hearing
officer in Latrigue's due process hearing and the Court in the case
are significantly different. The purpose of the due process hearing
was to determine whether NISD provided an educational program
reasonably calculated to enable Latrigue's progress. Latrigue's ADA
claim turns on whether NISD discriminated against her on account of
her disability. That issue was not considered in the due process
hearing. Therefore, Judge Pulliam finds Latrigue's ADA claim is not
precluded by the due process hearing and is not barred by the
collateral estoppel doctrine.
C. Evidence of NISD's Refusal to Provide Services
NISD argues Latrigue failed to provide sufficient evidence to show
NISD refused to provide her reasonable accommodations, as required
under the ADA. To support this contention, NISD notes the school
district agreed to provide closed captioning and translation
services for debate. Latrigue acknowledges NISD agreed to provide
these accommodations, but argues NISD either failed to follow
through on its commitment or did so too late to be of use.
Judge Pulliam holds that the question of whether the accommodations
NISD provided were adequate under the ADA is a question of fact
best resolved by the jury. Furthermore, although the Court
identified closed captioning and translation services as factual
allegations sufficient to deny NISD's Motion to Dismiss, it has not
restricted Latrigue's claim to those facts. Therefore, NISD is not
entitled to summary judgment for lack of evidence of its refusal to
provide services.
III. Conclusion
For the reasons he stated, Judge Pulliam concludes that NISD has
failed to demonstrate the absence of a genuine dispute of material
fact and the appropriateness of judgment as a matter of law.
Therefore, NISD's Motion for Summary Judgment is denies. The case
is ready to be set for trial. On July 15, 2022, the parties will
confer and advise the Court of three potential trial dates by Dec.
31, 2022.
The advisory will include the estimated number of days needed for
trial. The Court will provide the parties the potential dates if
available. If the parties do not file an advisory, or the provided
dates are not available on the Court's trial schedule, the Court
will assign a trial date, at which time the Court will enter a
trial scheduling order. If the parties wish, they may call the
Court's Courtroom Deputy, Magda Muzza, for information regarding
open trial dates. Ms. Muzza may be reached at 210-244-5021. The
parties may engage in private settlement negotiations, including
mediation with a private mediator any time prior to trial. If the
parties elect to request mediation before a Magistrate Judge, their
joint request for referral to a Magistrate Judge for mediation must
be filed no later than 45 days before trial.
A full-text copy of the Court's July 1, 2022 Memorandum Opinion &
Order is available at https://tinyurl.com/2p85rmm2 from
Leagle.com.
PACCAR INC: Wise Seeks Unpaid Overtime Wages for Production Staff
-----------------------------------------------------------------
CHRISTOPHER S. WISE, on behalf of himself and all others similarly
situated, Plaintiff v. PACCAR, INC., Defendant, Case No.
2:22-cv-02689-MHW-CMV (S.D. Ohio, July 5, 2022) is a class action
against the Defendant for its failure to pay employees overtime
wages in violation of the Fair Labor Standards Act of 1938, the
Ohio Minimum Fair Wage Standards Act, the Ohio Prompt Pay Act,
Section 34a of the Ohio Constitution, and the Ohio's Criminal Acts
statute.
Mr. Wise worked as an assembly line worker at the Defendant's
facility located at 65 Kenworth Drive, Chillicothe, Ohio from
November, 2011 until his departure in August, 2020.
PACCAR, Inc. is a manufacturer of light, medium, and heavy-duty
trucks, headquartered in Bellevue, Washington. [BN]
The Plaintiff is represented by:
Matthew J.P. Coffman, Esq.
COFFMAN LEGAL, LLC
1550 Old Henderson Road, Suite 126
Columbus, OH 43220
Telephone: (614) 949-1181
Facsimile: (614) 386-9964
E-mail: mcoffman@mcoffmanlegal.com
- and –
Daniel I. Bryant, Esq.
BRYANT LEGAL, LLC
1550 Old Henderson Road, Suite 126
Columbus, OH 43220
Telephone: (614) 704-0546
Facsimile: (614) 573-9826
E-mail: dbryant@bryantlegalllc.com
POLAR ELECTRO: Cordero Files ADA Suit in S.D. New York
------------------------------------------------------
A class action lawsuit has been filed against Polar Electro Inc.
The case is styled as Rafael Cordero, individually, and on behalf
of all others similarly situated v. Polar Electro Inc., Case No.
1:22-cv-05688-MKV (S.D.N.Y., July 5, 2022).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Polar Electro -- https://polar.com/ -- researches, develops,
manufactures, and sells heart rate monitoring products, activity
trackers, and training computers..[BN]
The Plaintiff is represented by:
Edward Y. Kroub, Esq.
MIZRAHI KROUB LLP
200 Vesey Street
New York, NY 10281
Phone: (212) 595-6200
Email: ekroub@mizrahikroub.com
PORTABLE THERAPEUTIX: Cordero Files ADA Suit in S.D. New York
-------------------------------------------------------------
A class action lawsuit has been filed against Portable Therapeutix,
LLC. The case is styled as Rafael Cordero, individually, and on
behalf of all others similarly situated v. Portable Therapeutix,
LLC, Case No. 1:22-cv-05705 (S.D.N.Y., July 5, 2022).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Portable Therapeutix doing business as Squid --
https://squidcompression.com/ -- is a powerful, portable pain
relief and recovery system for use by athletic trainers and medical
professionals.[BN]
The Plaintiff is represented by:
Edward Y. Kroub, Esq.
MIZRAHI KROUB LLP
200 Vesey Street
New York, NY 10281
Phone: (212) 595-6200
Email: ekroub@mizrahikroub.com
REYNOLDS CONSUMER: Gudgel Sues Over Trash Bags' Recyclable Label
----------------------------------------------------------------
SHANA GUDGEL, individually and on behalf of all others similarly
situated, Plaintiff v. REYNOLDS CONSUMER PRODUCTS, INC. & REYNOLDS
CONSUMER PRODUCTS, LLC, Defendants, Case No. 6:22-cv-01149-PGB-DCI
(M.D. Fla., July 4, 2022) is a class action against the Defendants
for false and misleading advertising and violations of Florida's
Deceptive and Unfair Trade Practices Act.
According to the complaint, the Defendants are engaged in false,
deceptive, and misleading advertising, labeling, and marketing of
the Hefty Recycling Trash Bags. The Defendants represent the trash
bags as suitable for recycling. In reality, the trash bags are made
from low-density polyethylene and are not recyclable at Florida's
solid waste disposal facilities. Had the Plaintiff and Class
members known that the bags were not suitable for recycling and not
recyclable, they would not have purchased them, or at a minimum,
they would not have paid a premium for them, says the suit.
Reynolds Consumer Products, Inc. is a manufacturer of consumer
products, with its principal place of business located in Lake
Forest, Illinois.
Reynolds Consumer Products, LLC is a wholly-owned subsidiary of
Reynolds Consumer Products, Inc., with its principal place of
business located in Lake Forest, Illinois. [BN]
The Plaintiff is represented by:
William Wright, Esq.
THE WRIGHT LAW OFFICE, P.A.
515 N. Flagler Drive, Suite P-300
West Palm Beach, FL 33410
Telephone: (561) 514-0904
E-mail: willwright@wrightlawoffice.com
- and –
Daniel Faherty, Esq.
TELFER, FAHERTY, & ANDERSON, PL
815 S. Washington Avenue, Suite 201
Titusville, FL 32780
Telephone: (321) 269-6833
E-mail: danfaherty@hotmail.com
SCHELL & KAMPETER: Navarro FCRA Suit Removed to E.D. California
---------------------------------------------------------------
The case styled GEORGINA NAVARRO, on behalf of herself and all
others similarly situated v. SCHELL & KAMPETER, INC. (doing
business as DIAMOND PET FOODS); DIAMOND PET FOOD PROCESSORS OF
CALIFORNIA, LLC; and DOES 1 through 10, inclusive, Case No.
STK-CV-UCC-2022-4305, was removed from the Superior Court of the
State of California for the County of San Joaquin to the U.S.
District Court for the Eastern District of California on July 5,
2022.
The Clerk of Court for the Eastern District of California assigned
Case No. 1:22-at-00505 to the proceeding.
The case arises from the Defendants' alleged violations of the
Federal Fair Credit and Reporting Act by providing job applicants
with a non-compliant disclosure form for the background
investigation.
Schell & Kampeter, Inc., doing business as Diamond Pet Foods, is a
manufacturer of animal food products based in Meta, Missouri.
Diamond Pet Food Processors of California, LLC is a manufacturer of
pet foods in California. [BN]
The Defendant is represented by:
John P. Nordlund, Esq.
JACKSON LEWIS P.C.
225 Broadway, Suite 2000
San Diego, CA 92101
Telephone: (619) 573-4900
Facsimile: (619) 573-4901
E-mail: John.Nordlund@jacksonlewis.com
- and –
Robert Yang, Esq.
Swaja Khanna, Esq.
JACKSON LEWIS P.C.
50 California Street, 9th Floor
San Francisco, CA 94111
Telephone: (415) 394-9400
Facsimile: (415) 394-9401
E-mail: Rob.Yang@jacksonlewis.com
Swaja.Khanna@jacksonlewis.com
SOCLEAN INC: CPAP Cleaning Device Emits Ozone, Cohen Suit Claims
----------------------------------------------------------------
ELYSE COHEN, individually and on behalf of all others similarly
situated, Plaintiff v. SOCLEAN, INC., Defendant, Case No.
1:22-cv-11075 (D. Mass., July 5, 2022) is a class action against
the Defendant for breach of express warranty, breach of implied
warranty of merchantability, fraudulent misrepresentation, fraud by
omission, negligent misrepresentation, unjust enrichment, and
violations of deceptive acts or practices prohibited by
Massachusetts law.
According to the complaint, the Defendant is engaged in false,
deceptive, and misleading advertising and marketing of its
continuous positive airway pressure (CPAP) cleaning device. The
Defendant advertised that its device used activated oxygen and was
safe and healthy. However, the Defendant failed to disclose to
consumers that the device emits ozone. Had the Plaintiff and
similarly situated consumers known the truth, they would not have
purchased the device or paid a premium for it, says the suit.
SoClean, Inc. is a manufacturer of cleaning devices, with its
principal place of business in Peterborough, New Hampshire. [BN]
The Plaintiff is represented by:
Patrick J. Vallely, Esq.
SHAPIRO HABER & URMY LLP
Seaport East
Two Seaport Lane
Boston, MA 02210
Telephone: (617) 208-4705
E-mail: pvallely@shulaw.com
- and –
Ruth Anne French-Hodson, Esq.
Sarah T. Bradshaw, Esq.
SHARP LAW FIRM
4820 W. 75th St.
Prairie Village, KS 66208
Telephone: (913) 901-0505
E-mail: rafrenchhodson@midwest-law.com
sbradshaw@midwest-law.com
- and –
Gary E. Mason, Esq.
Danielle L. Perry, Esq.
MASON LLP
5101 Wisconsin Ave., Suite 305
Washington, DC 20016
Telephone: (202) 429.2290
E-mail: gmason@masonllp.com
dperry@masonllp.com
- and –
Ronald Verdell Johnson, IV, Esq.
Russell L. Johnson, Esq.
DEAKLE-JOHNSON LAW FIRM, PLLC
P.O. Box 2072
Hattiesburg, MS 39403
Telephone: (601) 544-0631
E-mail: rljohnson@djlawms.com
rvjohsnon@djlawms.com
SOCLEAN INC: Perun Sues Over Mislabeled CPAP Sanitizing Machines
----------------------------------------------------------------
JOHN PERUN, individually and on behalf of all others similarly
situated, Plaintiff v. SOCLEAN, INC., Defendant, Case No.
3:22-cv-00842, (D. Conn., July 5, 2022) is an action alleging that
the Defendant concealed and omitted material information on the
presence and risk of ozone exposure from the SoClean 2 CPAP
Sanitizing Machine, the SoClean 2 Go CPAP Sanitizing machine, and
their predecessor devices (collectively "the SoClean devices").
According to the complaint, SoClean manufactured and marketed
devices used to clean continuous positive airway pressure ("CPAP")
machines. SoClean concealed and omitted material information on the
presence and risk of ozone exposure from the SoClean 2 CPAP
Sanitizing Machine, the SoClean 2 Go CPAP Sanitizing machine, and
their predecessor devices (collectively "the SoClean devices").
The SoClean devices work by generating ozone to sterilize and
deodorize CPAP machines. Ozone (O3) is an unstable toxic gas with a
pungent characteristic odor that can kill bacteria and viruses.
SoClean's marketing materials fail to disclose that its devices
emit ozone, which is a longstanding requirement of federal law.
Instead, SoClean falsely represents that its devices use "activated
oxygen" to clean CPAP machines. SoClean markets the devices as
"safe" and "healthy," which is false give that they generate toxic
ozone gas at levels that substantially exceed federal regulations.
SoClean falsely represents that its devices use "no water or
chemicals" or "no harsh chemicals" to clean CPAP machines, despite
using ozone gas – a harsh chemical that causes respiratory
problems in humans, says the suit.
SOCLEAN, INC. manufactures cleaning devices. The Company produces
automated continuous positive airway pressure (CPAP) cleaners and
sanitizers which improves health outcomes and quality of life for
those suffering from obstructive sleep apnea and other sleeping
disorders. [BN]
The Plaintiff is represented by:
Joseph P. Guglielmo, Esq.
SCOTT SCOTT ATTORNEYS AT LAW LLP
156 S. Main St.
Colchester, CT 06415
Telephone: (860) 537-5537
Email: jguglielmo@scott-scott.com
- and -
Ruth Anne French-Hodson, Esq.
SHARP LAW FIRM
Sarah T. Bradshaw
4820 W. 75th St.
Prairie Village, KS 66208
Telephone: (913) 901-0505
Email: rafrenchhodson@midwest-law.com
sbradshaw@midwest-law.com
- and -
Gary E. Mason, Esq.
Danielle L. Perry, Esq.
MASON LLP
5101 Wisconsin Ave., Suite 305
Washington, DC 20016
Telephone: (202) 429-2290
Email: gmason@masonllp.com
dperry@masonllp.com
SOCLEAN INC: Smith Sues Over Mislabeled CPAP Sanitizing Machines
----------------------------------------------------------------
MARGUERITE SMITH, individually and on behalf of all others
similarly situated, Plaintiff v. SOCLEAN, INC., Defendant, Case No.
3:22-cv-00298-FDW-DSC (W.D.N.C., July 5, 2022) is an action
alleging that the Defendant concealed and omitted material
information on the presence and risk of ozone exposure from the
SoClean 2 CPAP Sanitizing Machine, the SoClean 2 Go CPAP Sanitizing
machine, and their predecessor devices (collectively "the SoClean
devices").
According to the complaint, SoClean manufactured and marketed
devices used to clean continuous positive airway pressure ("CPAP")
machines. SoClean concealed and omitted material information on the
presence and risk of ozone exposure from the SoClean 2 CPAP
Sanitizing Machine, the SoClean 2 Go CPAP Sanitizing machine, and
their predecessor devices (collectively "the SoClean devices").
The SoClean devices work by generating ozone to sterilize and
deodorize CPAP machines. Ozone (O3) is an unstable toxic gas with a
pungent characteristic odor that can kill bacteria and viruses.
SoClean's marketing materials fail to disclose that its devices
emit ozone, which is a longstanding requirement of federal law.
Instead, SoClean falsely represents that its devices use "activated
oxygen" to clean CPAP machines. SoClean markets the devices as
"safe" and "healthy," which is false give that they generate toxic
ozone gas at levels that substantially exceed federal regulations.
SoClean falsely represents that its devices use "no water or
chemicals" or "no harsh chemicals" to clean CPAP machines, despite
using ozone gas – a harsh chemical that causes respiratory
problems in humans, the suit alleges.
SOCLEAN, INC. manufactures cleaning devices. The Company produces
automated continuous positive airway pressure (CPAP) cleaners and
sanitizers which improves health outcomes and quality of life for
those suffering from obstructive sleep apnea and other sleeping
disorders. [BN]
The Plaintiff is represented by:
Joel R. Rhine, Esq.
RHINE LAW FIRM, P.C.
1612 Military Cutoff Road Suite 300
Wilmington, NC 28403
Telephone: (910) 772-9960
Email: jrr@rhinelawfirm.com
- and -
Ruth Anne French-Hodson, Esq.
Sarah T. Bradshaw, Esq.
SHARP LAW FIRM
4820 W. 75th St.
Prairie Village, KS 66208
Telephone: (913) 901-0505
Email: sbradshaw@midwest-law.com
- and -
Gary E. Mason, Esq.
Danielle L. Perry, Esq.
MASON LLP
5101 Wisconsin Ave., Suite 305
Washington, DC 20016
Telephone: 202.429.2290
Email: gmason@masonllp.com
dperry@masonllp.com
- and -
Ronald Verdell Johnson, IV, Esq.
Russell L. Johnson, Esq.
DEAKLE-JOHNSON LAW FIRM, PLLC
P.O. Box 2072
Hattiesburg, MS 39403
Telephone: (601) 544-0631
Email: rljohnson@djlawms.com
rvjohsnon@djlawms.com
STATE FARM: Court Denies Bid to Amend Dec. 2 Order in Manrique Suit
-------------------------------------------------------------------
In the case, JOSE MANRIQUE, suing individually on his own behalf
and representatively on behalf of a class of plaintiffs similarly
situated, Plaintiff v. STATE FARM MUTUAL AUTOMOBILE INSURANCE
COMPANY, Defendant, Case No. 21-CV-224 (KMK) (S.D.N.Y.), Judge
Kenneth M. Karas of the U.S. District Court for the Southern
District of New York denies the Defendant's Motion for an Order
amending the Court's Dec. 2, 2021, Opinion & Order, to permit
interlocutory appeal.
I. Introduction
Plaintiff Manrique brings a putative class action lawsuit against
the Defendant, seeking damages as well as declaratory and
injunctive relief for the Defendant's alleged violations of the New
York Insurance Law and New York General Business Law and for breach
of contract with respect to automobile insurance policies the
Defendant issued. Before the Court is the Defendant's Motion for an
Order amending the Court's Dec. 2, 2021, Opinion & Order, to permit
interlocutory appeal pursuant to 28 U.S.C. Section 1292(b).
II. Background
On Dec. 2, 2021, the Court granted in part and denied in part the
Defendant's motion to dismiss; specifically, it denied the motion
with respect to the Plaintiff's claim under New York Insurance Law
Section 5102, as well as with respect to the Plaintiff's breach of
contract claim, but granted the motion with respect to the
Plaintiff's claims under New York General Business Law Section 349
and for declaratory and injunctive relief.
On Jan. 31, 2022, pursuant to the Court's Motion Scheduling Order,
the Defendant filed the instant Motion as well as a memorandum of
law in support of the Motion and a declaration by counsel. On Feb.
19, 2022, the Plaintiff filed a memorandum of law in opposition to
the Motion as well as a declaration by counsel. Finally, the
Defendant submitted a reply memorandum of law in support of the
motion as well as another declaration by different counsel.
III. Analysis
"Interlocutory orders that are otherwise non-appealable may be
reviewed under Section 1292(b) if the district court is of the
opinion that such an order (1) involves a controlling question of
law (2) as to which there is a substantial ground for a difference
of opinion and (3) that immediate appeal could materially advance
the ultimate termination of the litigation."
Broadly speaking, the Defendant asserts that the "portion of the
Court's Order denying State Farm's motion to dismiss meets all
three of the elements set forth in Section 1292(b) to qualify for
interlocutory appeal." The Plaintiff, on the other hand, asserts
that the Defendant falls short on the second necessary condition, a
substantial ground for a difference of opinion, and that even if
the Defendant could meet this requirement, the Action lacks the
exceptional circumstances required to permit interlocutory appeal.
Judge Karas reviews the three necessary factors as well as whether
the Action presents exceptional circumstances.
A. First and Third Requirements
The first requirement for a district court to certify an order for
interlocutory appeal is that the order "involves a controlling
question of law." The third requirement for a district court to
certify an order for interlocutory appeal is that "an immediate
appeal from the order may materially advance the ultimate
termination of the litigation."
Although technically the question of whether there is a controlling
issue of law is distinct from the question of whether certification
would materially advance the ultimate termination of the
litigation, in practice the two questions are closely connected."
The Defendant, the movant and thus the party that bears the burden
of proving these elements, argues that these two criteria have been
met. The Plaintiff essentially concedes these points, having failed
to respond to them. Accordingly, Judge Karas considers the first
and third requirements met.
B. Substantial Ground For A Difference Of Opinion
A substantial ground for difference of opinion exists when (1)
there is conflicting authority on the issue, or (2) the issue is
particularly difficult and of first impression for the Second
Circuit. The Defendant asserts that there exists "conflict between
the decisions of this Court and two other New York federal district
courts, on the one hand, and the decisions of New York State
appellate and trial courts, on the other." It follows, the
Defendant argues, that because federal courts are generally bound
to apply state law as interpreted by state courts, substantial
ground for a difference of opinion exists.
The Defendant has not identified any such conflict, however, only
its frustration with the Court's reading of the case law and
statutory text, Judge Karas opines. He says, the Defendant's
resuscitation of an argument that has been roundly rejected by
three federal courts -- including the present one -- does little to
persuade him that there is substantial ground for a difference of
opinion. Rather, he says, the "Defendant's motion consists entirely
of assertions and precedent rejected in the Court's prior opinion,
and a motion for certification may not be used to simply 'repeat
arguments made in a motion to dismiss.'" Accordingly, he finds that
the Defendant's repetition of arguments previously made concerning
the applicability of inapposite state case law does not create
substantial grounds for a difference of opinion.
C. Exceptional Circumstances
The Second Circuit has suggested that the subject matter of a given
action should not serve as a litmus test or guidepost vis-à-vis if
it is "exceptional," but instead that "Section 1292(b)'s
legislative history reveals that its use is reserved for those
cases where an intermediate appeal may avoid protracted
litigation."
Judge Karas explains that the broader impact of the issue to be
litigated on appeal is one of the Second Circuit's factors to
consider in whether to accept a certified interlocutory appeal, not
whether the potential appeal of an issue constitutes "exceptional
circumstances" -- an entirely separate calculus. Thus, in
determining whether such exceptional circumstances worthy of
interlocutory appeal exist, the Court focuses solely on whether
litigation would be expensive and protracted, as opposed to its
importance or its impact on "New York public policy concerns."
With respect to the narrow question of whether an interlocutory
appeal would avoid costly and protracted litigation, Judge Karas
finds that he would not. He says, the Defendant's argument
regarding the duration of time until the Second Circuit could hear
an analogous case is accorded little weight, if any. The
Defendant's concerns about the cost and timeliness of its own
discovery and litigation are also unpersuasive. At this juncture,
Judge Karas sees no reason as to why discovery would not be
constrained and efficient in the Action.
Given the absence of a conflict with state law cases and a lack of
exceptional circumstances, dovetailing the understanding that
"interlocutory appeals are strongly disfavored in federal
practice," he finds it inappropriate to certify the Defendant's
appeal at this juncture.
IV. Conclusion
For the foregoing reasons, Judge Karas denies the Defendant's
Motion. The Clerk of Court is respectfully directed to terminate
the pending Motion. In light of the Plaintiff's unfortunate
passing, the Court will schedule a status conference following the
counsel's motion to substitute the decedent's Administrator in his
place.
A full-text copy of the Court's July 1, 2022 Opinion & Order is
available at https://tinyurl.com/3jcspzcb from Leagle.com.
Kevin P. Fitzpatrick, Esq. -- kevin@vlmc-law.com -- Marschhausen &
Fitzpatrick, P.C., in Hicksville, New York, Counsel for the
Plaintiff.
John K. Weston, Esq. -- jweston@sackslaw.com -- Sacks Weston
Petrelli Diamond & Millstein LLC, in Philadelphia, Pennsylvania,
Counsel for the Plaintiff.
Brian L. Bank, Esq. -- brian.bank@rivkin.com -- Evan H. Krinick,
Esq. -- evan.krinick@rivkin.com -- Rivkin Radler LLP, in Uniondale,
New York, Counsel for the Defendant.
Douglas W. Dunham, Esq. -- douglas.dunham@dechert.com -- Ellen P.
Quackenbos, Esq. -- ellen.quackenbos@dechert.com -- Dechert LLP, in
New York City, Counsel for the Defendant.
STATE FARM: Court Denies Bid to Dismiss Williams' 1st Amended Suit
------------------------------------------------------------------
In the case, ALTON WILLIAMS, BRANDON HERNDON, MARKUS TOLSON,
JEFFREY FLOWERS, BROOKE CLUSE, VVONAKA RICHARDSON, and VERA DIXON,
on behalf of themselves and all others similarly situated,
Plaintiffs v. STATE FARM MUTUAL AUTOMOBILE INSURANCE CO., STATE
FARM LIFE INSURANCE CO., STATE FARM FIRE AND CASUALTY CO., STATE
FARM GENERAL INSURANCE CO., and STATE FARM BANK, F.S.B, Defendants,
Case No. 20-cv-01121 (N.D. Ill.), Judge Franklin U. Valderrama of
the U.S. District Court for the Northern District of Illinois,
Eastern Division, denies State Farm's Motion to Dismiss the First
Amended Complaint.
I. Background
Plaintiffs Alton Williams, Brandon Herndon, Markus Tolson, Jeffrey
Flowers, Vvonaka Richardson, Vera Dixon and Brooke Cluse, all
former or current State Farm Agents, have filed a two-count Amended
Complaint against State Farm Mutual Automobile Insurance Co., State
Farm Life Insurance Co., State Farm Fire and Casualty Co., State
Farm General Insurance Co., and State Farm Bank, F.S.B.
(collectively, State Farm), on behalf of themselves and a similarly
situated class, alleging racial discrimination in violation of 42
U.S.C. Section 1981 (Count I) and retaliation in violation of 42
U.S.C. Section 1981 (Count II). State Farm's Motion to Dismiss the
First Amended Complaint (FAC) pursuant to Federal Rule of Civil
Procedure 12(b)(6) is before the Court.
In this lawsuit, the Plaintiffs allege that through a uniform set
of firm-wide policies and practices, State Farm systematically
discriminates against its African American Agents, resulting in
lower pay, differential treatment, and higher rates of attrition
for African American Agents. State Farm's motion presents questions
about the level of pleading required to survive a motion to dismiss
with respect to the intent and causation elements of a Section 1981
racial discrimination claim.
State Farm Mutual Automobile Insurance Co. is a leading auto and
home insurer in the United States. State Farm offers insurance and
financial products to customers through its network of agents
across the United States.
The Plaintiffs are African American individuals who have worked as
State Farm Agents and State Farm Term Independent Contract Agents
(TICA Agents). Plaintiff Williams worked as a State Farm Agent in
Chicago's north side from 1999 until he was terminated on Dec. 31,
2017. Plaintiff Herndon worked as a State Farm Agent in the Houston
area from 2010 until he was terminated in March 2017. Plaintiff
Tolson worked as a State Farm Agent, also in the Houston area, from
October 2009 until he was terminated in approximately August 2016.
Plaintiff Flowers worked as a State Farm Agent in Michigan from
December 2002 until approximately December 2019. Plaintiff Cluse
became a TICA Agent in 2011, signed an Agent Agreement in 2013, and
is currently working as a State Farm Agent in Houston.
Plaintiff Richardson worked as a State Farm TICA Agent in Alabama
from June 2019 until she was terminated in approximately July 2020.
Plaintiff Dixon worked as a State Farm TICA Agent in Virginia from
June 2019 until she was terminated in approximately July 2020.
II. Analysis
The Plaintiffs assert two Section 1981 claims against State Farm in
the FAC: racial discrimination (Count I) and retaliation (Count
II).
To state a racial discrimination claim under Section 1981, the
Plaintiffs must allege: (1) that they are members of a racial
minority; (2) that State Farm had an intent to discriminate on the
basis of race; and (3) the discrimination concerned one or more of
the activities enumerated in the statute (i.e., the making and
enforcing of a contract). In addition, under Comcast Corp. v. Nat'l
Ass'n of African American-Owned Media, 140 S.Ct. 1009, 1014 (2020),
a Section 1981 racial discrimination plaintiff must plead that "but
for race, the plaintiff would not have suffered the loss of a
legally protected right."
State Farm advances four arguments for dismissal of the FAC. First,
State Farm argues that the Plaintiffs fail to plausibly allege that
State Farm intentionally discriminates against African American
agents. Second, it contends the Plaintiffs have not plausibly
alleged "but for" causation as required to state a viable Section
1981 racial discrimination claim. Third, State Farm argues the
Plaintiffs have failed to plausibly allege that they were
retaliated against as a result of protected activity. Fourth, it
asserts that the four-year statute of limitations for Section 1981
claims bars much of the Plaintiffs' claims.
A. Intent to Discriminate
Among othner things, State Farm argues that the Plaintiffs fail to
plausibly allege that State Farm intentionally discriminated
against African American Agents. Instead, asserts State Farm, the
Plaintiffs rely on conclusory allegations which are insufficient to
plead intent (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007) and Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)).
Judge Valderrama disagrees holding that the FAC contains plausible
allegations on the issue of intent. All in all, the Plaintiffs have
alleged that they were discriminated against because of their race.
At this Rule 12(b)(6) juncture, the FAC's general pleadings
suffice.
The Plaintiffs have sufficiently explained the who, what, and when
in a way that presents a story that holds together. The FAC
identifies CEO Michael Tipsord, the Plaintiffs' managers, Cluse's
Sales Leader and Vice President of Agency, and others at State Farm
as the actors, or the "who" of the Plaintiffs' discrimination
claims. The Plaintiffs allege the "what," i.e., that State Farm
engages in a firm-wide pattern and practice of race discrimination
and discriminatory policies and practices, and that pursuant to
those policies and practices, the Plaintiffs were assigned to less
lucrative territories, began their careers from scratch or with a
significantly smaller book of business, were denied valuable
policies and resources, were subjected to differential discipline,
and were paid lower wages because of their race. The Plaintiffs
also allege that these acts took place throughout their tenures as
State Farm agents, which provides the "when."
Along similar lines, the State Farm suggests that the FAC is
deficient because the Plaintiffs fail to adequately plead facts
identifying similarly situated non-African American agents who were
not subjected to the same adverse actions. However, such comparator
evidence are not required at the pleading stage. In any event, the
FAC does allege that similarly situated non-African American agents
received better territories, better policy assignments, and less
severe discipline. State Farm's comparator argument consequently
does not support dismissal of the FAC.
At this stage, the Plaintiffs have done enough to plead intent, so
Judge Valderrama turns to State Farm's causation arguments.
B. Causation
State Farm argues that the Court should dismiss the complaint
because the Plaintiffs do not plausibly allege "but for" causation
as required to state a viable Section 1981 claim. A plaintiff,
asserts State Farm, "must initially plead and ultimately prove
that, but for race, it would not have suffered the loss of a
legally protected right." It submits that the Plaintiffs cannot
state a Section 1981 claim by simply alleging that race played a
role in State Farm's conduct. Rather, the Plaintiffs "must
plausibly allege facts that establish that their race was the
actual cause of the injury for which they seek redress." The
Plaintiffs, according to State Farm, fail to do so.
The Plaintiffs respond that, contrary to State Farm's suggestion,
Comcast did not "radically alter the landscape of Section 1981
litigation." Rather, following Comcast, a plaintiff need only plead
that the "employer instituted a (specified) adverse employment
action against the plaintiff on the basis of her race." The
Plaintiffs further assert that in Bostock v. Clayton Cnty.,
Georgia, 140 S.Ct. 1731, 1740 (2020), the Supreme Court found that
an adverse action can have multiple but for causes. In Bostock, the
Supreme Court held that discrimination on the basis of sexual
orientation or transgender status constitutes discrimination
because of an individual's sex and therefore violates Title VII.
Judge Valderrama finds that throughout the FAC, the Plaintiffs
allege that, because of their race, they were, among other things,
"race matched" to less lucrative territories, denied advancement
opportunities, disciplined more harshly, and even terminated. The
FAC thus passes muster under the Comcast decision alone because the
Supreme Court in Comcast recognized that Section 1981, like Section
1982, requires a plaintiff pleading causation to allege that the
defendant's challenged conduct was "because of race." Judge
Valderrama thereby recognized that but-for causation can be
satisfied by pleading that a defendant's challenged conduct was
"because of" race.
In the case, the Plaintiffs have done just that. The Plaintiffs
allege that they would not have been subject to these purportedly
adverse events had they been white. Their allegations, moreover,
are plausible because they support their "because of their race"
allegations with specifics and do not merely tack "because of race"
onto their allegations. Applying Comcast's definition of but-for
causation, Judge Valderrama finds the Plaintiffs have satisfied the
pleading requirements for causation.
State Farm's arguments to the contrary misfire. As an initial
matter, State Farm at least partially misreads the FAC. However,
even if the FAC did allege that the Plaintiffs' relationships with
State Farm ended after the Plaintiffs violated State Farm policies,
that still would not defeat the FAC. So long as the Plaintiffs have
alleged that State Farm took adverse actions against them because
of their race, they have sufficiently pled causation.
Turning to State Farm's contention that the Agent Plaintiffs
(Plaintiffs Cluse, Flowers, Herndon, Tolson, and Williams) have not
plausibly alleged that "but for" their race they would not have
been subjected to audit and compliance evaluations, Judge
Valderrama is unpersuaded for similar reasons. Again, this is not
summary judgment. For now, the Court must accept the FAC's well
pled allegations as true. When the Court does so, it is clear that
the Plaintiffs have alleged causation and State Farm's audit and
compliance evaluation argument fails.
Judge Valderrama is even less swayed by State Farm's arguments with
respect to the TICA Plaintiffs (Plaintiffs Dixon and Richardson).
To begin, State Farm argues that because the TICA agreement
boilerplate language does not obligate State Farm to offer an
additional agreement to a TICA agent, the Plaintiffs cannot plead
that race was the but-for cause of their failure to obtain
additional agent agreements. This argument is dead on arrival
because the TICA agreements are not central to the Plaintiffs'
claims, so the Court cannot consider them on the motion to dismiss.
Even if the TICA agreements were fair play, boilerplate language
giving a company the right to not renew a contract does not mean
that the company could not discriminate on the basis of race by
offering white agents additional contracts while denying additional
contracts to non-white agents.
State Farm additionally asserts that the Plaintiffs "admitted that
they failed to meet their business plan production goals used to
evaluate their performance." That is not what the FAC says. State
Farm's TICA Plaintiffs causation arguments, like its intent and
other causation arguments, fail to persuade the Court that the
Plaintiffs' intentional discrimination claim should be dismissed.
Judge Valderrama therefore denies State Farm's motion to dismiss on
Count I.
C. Retaliation
In Count II, Plaintiffs Herndon, Tolson, Cluse, Richardson, and
Dixon assert retaliation in violation of 42 U.S.C. Section 1981. To
state a claim for Section 1981 retaliation, the Plaintiffs must
plead: (1) a statutorily protected activity; (2) a materially
adverse action taken by State Farm; and (3) a causal connection
between the two. State Farm argues that the Plaintiffs fail to
plausibly allege the second and third elements.
Judge Valderrama opines that (i) the Plaintiffs need only plead
that they were subject to a materially adverse action in
retaliation for engaging in a protected activity and they have done
so; and (ii) the Plaintiffs have met the Rule 8 pleading standard
by giving enough details about the retaliation to present a story
that holds together. In Short, State Farm has failed to show that
the Plaintiffs' retaliation claims should be dismissed, so its
motion with respect to Count II is denied.
D. Statute of Limitations
Lastly, State Farm argues that some of the Plaintiffs' claims are
time-barred. As the parties agree, Section 1981 claims for
discriminatory conduct during the term of a contract have a
four-year limitations period. Because the complaint was filed on
Feb. 14, 2020, State Farm argues that all alleged acts of
discrimination that arose prior to Feb. 14, 2016 are untimely and
must be dismissed.. In support of its limitations argument, State
Farm classifies the Plaintiffs' claims into two categories for
dismissal pursuant to the statute of limitations: (a) agency and
territory assignments; and (b) claims of other discriminatory
acts.
In viewing the allegations of the FAC in the light most favorable
to the Plaintiffs, as it must, Judge Valderrama cannot say that the
Plaintiffs have pled themselves out of court as it pertains to the
agency territory and policy assignments. So, he declines to dismiss
claims relating to agency and territory assignments at this
juncture based on State Farm's affirmative defense. As with the
agency and territory assignment argument, Judge Valderrama holds
that it cannot be said that from the face of the FAC, the
Plaintiffs have pled themselves out of court. The Plaintiffs
sufficiently allege that they were denied business opportunities
throughout their tenure, and the FAC provides years relating to
their relationships with State Farm showing that at least part of
those tenures fell within the statute of limitations. As such, in
viewing the allegations of the complaint in the light most
favorable to the Plaintiffs, that they have not pled themselves out
of court. Therefore, the motion to dismiss the FAC on the basis of
the statute of limitations is denied.
III. Conclusion
For the foregoing reasons, State Farm's motion to dismiss is
denied. State Farm will answer the FAC by July 25, 2022.
A full-text copy of the Court's July 1, 2022 Memorandum Opinion &
Order is available at https://tinyurl.com/bdcvmmda from
Leagle.com.
SUNSET STRIP: Smith Sues Over Exotic Dancers' Unpaid Minimum Wages
------------------------------------------------------------------
DOMINIQUE BISHOP SMITH, on behalf of herself and all other
similarly situated individuals, Plaintiff v. SUNSET STRIP, INC.,
Defendant, Case No. 1:22-cv-01277-TWP-MJD (S.D. Ind., June 27,
2022) is brought against the Defendant for failing to pay Plaintiff
and all other members of the class and collective minimum wage
compensation they were entitled to under the under the Federal Fair
Labor Standards Act and the Indiana Minimum Wage Law.
According to the complaint, the Defendant misclassified Plaintiff
and all other members of the class and collective that worked for
Defendant as exotic dancers at Defendant's Sunset Strip Gentlemen's
Club as non-employee "independent contractors." As a result of
Defendant's class-wide misclassification of all exotic dancer
employees during the relevant period, the Plaintiff and similarly
situated were denied proper minimum wage compensation, says the
suit.
The Plaintiff was employed by the Defendant as an exotic dancer
from 2012 through about March 2021.
Sunset Strip, Inc. is an adult entertainment establishment located
in Indianapolis, Indiana.[BN]
The Plaintiff is represented by:
Brian R. Drummy, Esq.
BUNGER & ROBERTSON
211 South College Avenue
Bloomington, IN 47404
Telephone: (812) 332-9295
E-mail: bdrummy@lawbr.com
- and -
Gregg C. Greenberg, Esq.
ZIPIN, AMSTER & GREENBERG, LLC
8757 Georgia Avenue, Suite 400
Silver Spring, MD 20910
Telephone: (301) 587-9373
E-mail: GGreenberg@ZAGFirm.com
VELODYNE LIDAR: Court Narrows Claims in Moradpour Securities Suit
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In the case, MEYSAM MORADPOUR, et al., Plaintiffs v. VELODYNE
LIDAR, INC., et al., Defendants, Case No. 21-cv-01486-SI (N.D.
Cal.), Judge Susan Illston of the U.S. District Court for the
Northern District of California grants in part and denies in part
the Defendants' motion to dismiss the Plaintiffs' Consolidated
Amended Class Action Complaint.
I. Background
The securities class action arises from a merger between Velodyne
Lidar and Graf Industrial. Through its founder, David Hall,
Velodyne invented a proprietary pulsed laser sensing technology
(i.e., "LiDAR") for real-time 3D vision in autonomous systems. Graf
Industrial was a special purpose acquisition company ("SPAC")
founded in 2018 for the "sole purpose" of raising money through an
IPO to fund a merger with a private company, which would then be
taken public. Graf Industrial acquired Velodyne through a reverse
merger on Sept. 29, 2020.
The class action complaint, amended on Feb. 11, 2022, is brought on
behalf of all persons who purchased Velodyne securities between
July 2, 2020 and March 17, 2021. The complaint alleges the
Defendants advanced four categories of false or misleading
statements or omissions in order to drum up support for the merger
and inflate the price of Velodyne securities. The Defendants'
conduct, the complaint alleges, caused the price of Velodyne's
common stock to fall from $30.34 on Sept. 9, 2020, to just over $13
on March 18, 2021.
The present shareholder class action complaint names as Defendants:
(i) Velodyne, Inc.; (ii) Anand Gopalan, former Velodyne CEO; (iii)
Andrew Hamer, Velodyne CFO; (iv) Michael Dee, former President and
CFO of Graf Industrial, and current Chairman of Velodyne's Board of
Directors; (v) James Graf, former CEO of Graf Industrial and
Velodyne director; and (vi) Joseph Culkin, former Velodyne Board
Chairman and a current director of the Board. he complaint alleges
that between July 2, 2020 and March 17, 2021, the Defendants
engaged in a "fraudulent or deliberately reckless course of
business conduct" that deceived investors into approving the merger
and purchasing Velodyne securities at inflated prices.
Three counts are alleged in the complaint. Count I asserts all
defendants are liable under Section 10(b) of the Exchange Act and
SEC Rule 10b-5 for making misleading statements during the class
period. Count II asserts defendants Graf and Dee are liable under
Section 10(b) of the Exchange Act and SEC Rule 10b-5(a) for
employing "devices, schemes, and artifices to defraud" and engaging
"in acts, practices, and a course of business that operated as a
fraud or deceit." Count III asserts all Individual Defendants are
derivatively liable under Section 20(a) of the Exchange Act as
"controlling persons" who caused violations of the securities
laws.
Counts I and II are based on alleged misstatements that fall into
four categories. First, the complaint alleges that the Defendants
falsely assured shareholders about Hall's continued role in the
company while secretly trying to oust him. Second, the complaint
alleges the Defendants misrepresented Velodyne's revenue and growth
trajectory in the run-up to the merger's approval and in the months
that followed. Third, the complaint alleges the Defendants misled
shareholders about Ford's continued involvement in Velodyne as a
strategic investor and customer. And fourth, the complaint alleges
the efendants misled shareholders about the quality of Velodyne's
corporate governance and internal controls over financial
reporting.
On March 4, 2022, the Defendants moved under Fed. R. Civ. P. 9(b)
and 12(b)(6) to dismiss the Consolidated Amended Complaint for
failure to state a claim under Sections 10(b) and 20(a) of the
Securities Exchange Act or SEC Rule 10b-5. As to the Section 10(b)
and SEC Rule 10b-5 claims under Counts I and II, the Defendants
assert the Complaint fails to plead facts (1) showing that any
statement was materially false or misleading when made, or (2)
raising a strong inference that any statement was made with
scienter. For the Section 20(b) claim under Count III, the
Defendants assert the complaint fails to plead a primary violation
of the Exchange Act or the Individual Defendant's control over
Velodyne, and as such, cannot state a claim for derivative
liability.
The motion to dismiss has been fully briefed, and the Court held
oral argument on June 10, 2022.
II. Discussion
A. Hall's Ouster
Judge Illston holds that the complaint adequately alleges that
Defendants Velodyne, Gopalan, and Dee intentionally touted Hall's
continued involvement in Velodyne throughout the Class Period while
taking actions that "directly contradicted" the notion that Hall
maintained a key leadership role. While Velodyne did not need to
prematurely disclose the results of the Audit Committee's
investigation into Hall, the existence of an investigation, along
with all the other facts and circumstances, creates a strong
inference of scienter for the statements made in the FY2020
Release.
The complaint has thus adequately alleged a violation of Section
10(b) of the Exchange Act and SEC Rule 10b-5(c) against Velodyne,
Gopalan, and Dee for the statements pertaining to Hall's leadership
in the company during the class period. The complaint also
adequately alleges a violation of Section 20(a) against Gopalan,
Dee, and Graf as control persons of Velodyne. However, the
complaint does not adequately allege that Graf or Dee "employed a
device, scheme, or artifice to defraud" under SEC Rule 10b-5(a).
B. Velodyne's Financial Outlook
The complaint further alleges various statements made between July
2, 2020 and Jan. 7, 2021 misled investors by overstating business
growth and anticipated revenue from "existing" contracts.
Judge Illston finds that all but two of the challenged statement
were accompanied with appropriate cautionary language. As to the
two statements that were not accompanied by cautionary language,
she finds the complaint fails to plead actual knowledge of
falsity.
First, Judge Illston holds that all the written statements cited in
the complaint were accompanied by cautionary language. Even if the
statements about Velodyne's projected revenue from "signed and
awarded" contracts could be construed as "mixed" (because they
contained assertions about present facts), the safe harbor still
applies. As to the written revenue projections themselves, which
the Plaintiffs concede are purely forward-looking, Judge Illston
finds such statements accompanied by adequate cautionary language.
The safe harbor thus applies to the written financial projections.
That leaves oral statements made in a July 2, 2020 conference call,
a Sept. 1, 2020 conference call, and a Nov. 5, 2020 quarterly
earnings presentation. Judge Illston has reviewed the transcripts
for the conference call on July 2, 2020 and Sept. 1, 2020 and
cannot conclude that Defendants Gopalan, Graf, or Hamer made
cautionary oral statements or referred to documents where such
cautionary statements could be found. However, she finds that the
CAC does not present sufficient facts from which the Court could
infer that Defendants Gopalan, Graf, or Hamer made the statements
on those calls with "actual knowledge" of their falsity at the time
the statements were made.
Without identifying when Hall expressed his "grave concerns," and
to whom, Judge Illston cannot draw an inference of actual knowledge
against Defendants Gopalan, Graf, or Hamer based on this
allegation. She thus finds none of the statements pertaining to
Velodyne's finances and revenue outlook adequately plead a
violation of Section 10(b) of the Exchange Act or SEC Rule 10b. The
complaint accordingly fails to plead a Section 20(a) violation as
well.
C. Ford's Departure
The complaint asserts that the Defendants falsely represented that
Ford would remain a strategic investor in Velodyne and retain a
"major contract" with the company after the consummation of the
merger. Judge Illston finds the complaint fails to allege falsity
as to any of the statements pertaining to Ford. None of the
statements pertaining to Ford plead a violation of Section 10(b) of
the Exchange Act or SEC Rule 10b, nor Section 20(a) of the Exchange
Act, against any Defendant.
In the July 2, 2020 merger announcement, Velodyne stated that Ford,
along with other strategic investors, would be "'rolling over' its
equity into the transaction" subject to a six-month lockup after
the consummation of the merger. In the Aug. 21, 2020 Preliminary
Proxy Statement, Velodyne disclosed that pursuant to a Letter
Agreement, Ford would be exempt from the lockup period. The
Plaintiffs argue that the Defendants' repeated assertion that "Ford
is expected to hold greater than 5%" of Velodyne post-merger was
misleading in light of the Letter Agreement and Ford's eventual
sale of its entire stake on Dec. 31, 2020.
The Defendant's statements were not false or misleading, Judge
Illston holds. Even assuming any intervening statements could be
described as false or misleading, the complaint fails to plead
factual basis from which a strong inference of scienter may be
drawn as to any defendant. And, even if Ford were a noncommittal
investor, the fact that it had invested in Velodyne in 2016 and
stuck around through 2020 only strengthens the case for the
truthfulness of the statement that Ford was "expected" to hold onto
its stake post-merger -- which it in fact did for a short period.
Other than the repeated and unsubstantiated assertion that Ford
"planned to terminate a major contract with Velodyne" after the
merger closed, the complaint does not contain any facts describing
the putative contract, Ford's plan to terminate the contract, or
the Defendant's knowledge of such a plan. The Plaintiff's entire
theory regarding Ford's contract turns on two allegations: (1) that
on Feb. 25, 2021, Defendant Gopalan told investors that Velodyne
"had lost multiple contracts to its competitors," and (2) that at
some unspecified time after Feb. 25, 2021, some unspecified
"analysts later identified Ford as likely one of those contracts."
Judge Illston declines to draw the "unwarranted deductions of fact,
or unreasonable inferences" that would be required to find such
allegations adequate to plead falsity or scienter.
D. Velodyne's Internal Controls
Finally, the Plaintiffs allege the Defendants falsely represented
the quality of Velodyne's internal controls. However, Judge Illston
finds that the allegations in the CAC are simply threadbare
recitals of the legal elements of the claim, and are thus
insufficient. The CAC alleges that Defendant Gopalan's "hands-on
management style" evinces that he intentionally made false
assurances regarding Velodyne's internal controls. But the
complaint fails to state with particularity the alleged problems to
which Gopalan turned a blind eye. Similarly, the CAC alleges that
"Gopalan and Hamer knew or recklessly disregarded that Velodyne did
not have adequate internal controls, and failed to remedy the
internal control deficiencies or disclose a material weakness until
almost a year after the problem was first identified." Yet, the
only facts offered to suggest scienter are Gopalan and Hamer's Nov.
9, 2020 SOX Certifications. This alone is not sufficient. S
None of the statements pertaining to Velodyne's internal controls
plead a violation of Section 10(b) of the Exchange Act or SEC Rule
10b, nor Section 20(a) of the Exchange Act, against any Defendant.
III. Conclusion
Based on careful review of the facts alleged in the CAC, the
arguments raised by the parties, and documents incorporated by
reference or facts judicially noticed, Judge Illston concludes the
CAC adequately alleges: (i) Section 10(b) and SEC Rule 10b-5(c)
claims against Velodyne, Gopalan, and Dee based on Hall's ouster;
and (ii) a Section 20(a) claim against Gopalan, Dee, and Graf based
on Hall's ouster. No other claims in the CAC satisfy the PSLRA's
stringent pleading requirements.
Accordingly, she grants in part and denies the motion to dismiss.
Judge Illston orders as follows.
a. Claims based on Hall's Ouster
1. The CAC adequately alleges Defendants Velodyne,
Gopalan, and Dee violated Section 10(b).
2. The CAC adequately alleges Defendants Gopalan, Dee,
and Graf violated Section 20(a) of the Exchange Act against as
control persons of Velodyne.
b. Claims based on Financial Projections
1. The CAC fails to allege a violation of Section 10(b)
of the Exchange Act against any defendant based on financial
projections and revenue outlook.
2. The CAC accordingly fails to allege a Section 20(a)
violation against any defendant based on financial projections and
revenue outlook.
c. Claims based on Ford
1. The CAC fails to allege a violation of Section 10(b)
of the Exchange Act against any defendant based on Ford's
investment and contracts.
2. The CAC accordingly fails to allege a Section 20(a)
violation against any defendant based on Ford's investment and
contracts.
d. Claims based on Internal Controls
1. The CAC fails to allege a violation of Section 10(b)
of the Exchange Act against any Defendant based on Velodyne's
internal controls.
2. The CAC accordingly fails to allege a Section 20(a)
violation against any Defendant based on Velodyne's internal
controls.
Judge Illston, thus, denies the motion to dismiss as it pertains
to: (i) the Section 10(b) claims against Velodyne, Gopalan, and Dee
based on Hall's ouster; and (ii) the Section 20(a) claims against
Gopalan, Dee, and Graf based on Hall's ouster.
Judge Illston grants the balance of the motion. When granting a
motion to dismiss, the court is generally required to grant the
plaintiff leave to amend, even if no request to amend the pleading
was made, unless amendment would be futile." Judge Illston denies
leave to amend claims against Joseph Culkin, as no actionable
statements have been attributed to Culkin in the present CAC or any
of the preceding complaints. She grants leave to amend the
remaining claims.
The Plaintiffs may file an amended complaint no later than July 15,
2022.
A full-text copy of the Court's July 1, 2022 Order is available at
https://tinyurl.com/d6bczndy from Leagle.com.
*********
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