/raid1/www/Hosts/bankrupt/CAR_Public/220719.mbx
C L A S S A C T I O N R E P O R T E R
Tuesday, July 19, 2022, Vol. 24, No. 137
Headlines
3M COMPANY: Harper Suit Claims Complications From AFFF Products
3M COMPANY: Thomas Sues Over Injuries Sustained From AFFF Products
ALTRU HEALTH: Suit Seeks to Certify Class of Plan Beneficiaries
AMAZON.COM INC: Pension Fund Sues Over 14.05% Drop of Stock Price
ARBY'S RESTAURANT: Jaghori Sues Over Mislabeled Steakhouse Burgers
ATBCOIN LLC: Balestra Securities Suit Seeks to Certify Class
BLOOMBERG LP: Adams FLSA Suit Seek to Certify Classes
BOEING EMPLOYEES: Faces Arant Suit Over Zelle's Misrepresentation
BOWES & ASSOCIATES: $30K Fees & Costs Award in McIntire Suit Upheld
BP EXPLORATION: E.D. Louisiana Dismisses Grant Suit With Prejudice
CALIFORNIA: Ninth Circuit Affirms Dismissal of Mendel v. CPUC Suit
CARDINAL HEALTH: Bare Appeals Case Dismissal to 6th Circuit
CONSULATE NYC: Lopez Class Suit Seeks Unpaid Wages Under FLSA, NYLL
CRUNCH LLC: Hanyzkiewicz Files ADA Suit in E.D. New York
DOLE PACKAGED: Jackson Suit Removed from State Ct. to S.D. Illinois
DREAMCATCHER BROADCASTING: King Sues Over Price Fixing Cartel
EARLY WARNING: Faces Hope Suit Over Zelle Money Transfer Fraud
EDISON LIQUIDATING: Waller Appeals Ruling to N.Y. Appellate Court
ENHANCED RECOVERY: Dunn Suit Remanded to Rowan County Super. Court
ESSENTIA HEALTH: Order Setting Class Cert. Deadlines Entered
FIRST AMERICAN: Abramson Sues Over Unsolicited Telemarketing Calls
GRAND DESIGN: Misclassifies Technicians, Witt Suit Claims
HOME DEPOT: Court Denies Utne's Bid to Intervene in Barragan Suit
HOME DEPOT: Court Stays White Suit Pending Conclusion of Utne Suit
ILLINOIS: Davis Appeals Dismissal of Case v. DHS to 7th Circuit
JAAFAR LLC: Boynuince et al. Sue Over Servers' Unpaid Overtime
JUUL LABS: Auburn Sues Over Harm Caused by Youth E-Cigarette Market
JUUL LABS: Randolph Central Sues Over E-Cigarette Crisis in N.Y.
JUUL LABS: Triggers Youth E-Cigarette Crisis, Granada Hills Claims
KANAWAY SEAFOODS: Underpays Employees, Flaherty et al. Claim
KOJI'S JAPAN: Cal. App. Affirms Final Order & Judgment in Turman
LL FLOORING: Faces Melendez Suit Over Failure to Pay Overtime
LOWE'S HOME: Cruz Wage-and-Hour Suit Removed to C.D. California
MULLOOLY JEFFREY: Court Narrows Claims in Valentine FDCPA Suit
NOMI HEALTH: Jaime FLSA Suit Removed to S.D. Florida
ONLINE INFORMATION: Friedman Sues Over Debt Collection Practices
PATSY'S PIZZERIA: Lopez Sues Over Underpayment of Wages
PIT VIPER LLC: Mejia Files ADA Suit in S.D. New York
PROFESSIONAL FIDUCIARY: MacTaggert Seeks to Recover ESOP Losses
PROFESSIONAL FINANCE: Rodriguez Files Suit in D. Colorado
ROCKING CRAB: Illegally Retains Tips, Carpegna Class Suit Says
ROMEO & JULIETTE: Hanyzkiewicz Files ADA Suit in E.D. New York
RUNNINGS SUPPLY: Fails to Timely Pay Wages, Rhoda Suit Alleges
SECURIAN FINANCIAL: Fails to Pay Call Center Agents' OT Wages
SHOE EMPORIUM INC: Hoover Files Suit in Cal. Super. Ct.
SHOW STABLE: Calcano Files ADA Suit in S.D. New York
SIMON PROPERTY: Cafe Gelato Seeks to Certify Six Classes
SKECHERS USA: Whitehurst Sues Over Unsolicited Phone Calls Ads
SOCLEAN INC: Harrell Files Suit in W.D. Oklahoma
SOCLEAN INC: Humphress Files Suit in W.D. Kentucky
SORRENTO THERAPEUTICS: Zenoff Appeals Case Dismissal to 9th Circuit
SPENGA INC: Smith Files TCPA Suit in S.D. Florida
STAR TRIBUNE MEDIA: Feldman Files Suit in D. Minnesota
STONELEDGE FURNITURE: Class Settlement in Parker Suit Has Final OK
SYNCHRONY BANK: Court Extends Time to Complete Discovery in Lucas
T. ROWE PRICE: Class Settlement in Feinberg Suit Wins Final Nod
TIDEWATER FINANCE: Johnson Files Suit in D. Maryland
TRANSOCEAN RESOURCES: Ortiz Files ADA Suit in W.D. New York
TRANSWORLD SYSTEMS: Wins Summary Judgment in Snarr Class Suit
TREE CENTER: Mejia Files ADA Suit in S.D. New York
UNREAL BRANDS: Mejia Files ADA Suit in S.D. New York
UPSTART HOLDINGS: AI-Based Underwriting Model Misleading, Suit Says
VOLCANICA COFFEE: Mejia Files ADA Suit in S.D. New York
WESTSIDE INVESTMENTS: Vaccaro Files TCPA Suit in C.D. California
YUMA REGIONAL MEDICAL: Kircher Suit Removed to D. Arizona
*********
3M COMPANY: Harper Suit Claims Complications From AFFF Products
---------------------------------------------------------------
JOSEPH HARPER, individually and on behalf of all others similarly
situated, Plaintiff v. 3M COMPANY fka MINNESOTA MINING &
MANUFACTURING CO.; BUCKEYE FIRE EQUIPMENT CO.; CHEMGUARD, INC.;
CORTEVA, INC.; DUPONT DE NEMOURS, INC.; DYNAX CORPORATION; E.I.
DUPONT DE NEMOURS & CO.; KIDDE-FENWALL, INC; KIDDE FIRE FIGHTING,
INC; KIDDE PLC INC.; NATIONAL FOAM, INC.; THE CHEMOURS CO.; THE
CHEMOURS COMPANY FC, LLC; TYCO FIRE PRODUCTS, LP; UTC FIRE &
SECURITY AMERICA'S, INC; and DOES 1 to 100, inclusive, Defendants,
Case No. 2:22-cv-02142-RMG (D.S.C., July 6, 2022) is a class action
against the Defendants for negligence, strict liability, defective
design, failure to warn, fraudulent concealment, medical monitoring
trust, and violation of the Uniform Voidable Transactions Act.
According to the complaint, the Defendants have failed to use
reasonable and appropriate care in the design, manufacture,
labeling, warning, instruction, training, selling, marketing, and
distribution of aqueous film forming foam (AFFF) products
containing synthetic, toxic per- and polyfluoroalkyl substances
collectively known as PFAS. The Defendants' AFFF products are
dangerous to human health because PFAS are highly toxic and
carcinogenic chemicals and can accumulate in the blood and body of
exposed individuals. The Defendants have also failed to warn public
entities and military members, including the Plaintiff, who they
knew would foreseeably come into contact with their AFFF products.
The Plaintiff used the Defendants' PFAS-containing AFFF products in
their intended manner, without significant change in the products'
condition due to inadequate warning about the products' danger. The
Plaintiff relied on the Defendants' instructions as to the proper
handling of the products, says the suit.
As a result of the Defendants' omissions and misconduct, the
Plaintiff was diagnosed with ulcerative colitis and commenced
on-going medical treatment, the suit added.
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.
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.
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.
Corteva, Inc. is an American agricultural chemical and seed company
based in Wilmington, Delaware.
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-Fenwall, Inc. is a manufacturer of fire protection systems
based in Ashland, Massachusetts.
Kidde Fire Fighting, Inc. is a manufacturer of fire safety products
based in Mebane, North Carolina.
Kidde PLC is a manufacturer of fire safety products based in
Mebane, North 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.
The Chemours Company FC, LLC is a manufacturer of titanium
technologies, fluoroproducts and chemical solutions based in
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.
UTC Fire & Security America's Inc. is a manufacturer of security
and fire control systems based in Bradenton, Florida. [BN]
The Plaintiff is represented by:
Jeremy C. Shafer, Esq.
VETERAN LEGAL GROUP
700 12th Street N.W., Suite 700
Washington, DC 20005
Telephone: (888) 215-7834
E-mail: jshafer@bannerlegal.com
- and –
S. James Boumil, Esq.
BOUMIL LAW OFFICES
120 Fairmount Street
Lowell, MA, 01852
Telephone: (978) 458-0507
E-mail: sjboumil@boumil-law.com
- and –
Konstantine Kyros, Esq.
KYROS LAW
17 Miles Rd.
Hingham, MA 02043
Telephone: (800) 934-2921
E-mail: kon@kyroslaw.com
3M COMPANY: Thomas Sues Over Injuries Sustained From AFFF Products
------------------------------------------------------------------
PATRICIA THOMAS, individually and on behalf of all others similarly
situated, Plaintiff v. 3M COMPANY fka MINNESOTA MINING &
MANUFACTURING CO.; BUCKEYE FIRE EQUIPMENT CO.; CHEMGUARD, INC.;
CORTEVA, INC.; DUPONT DE NEMOURS, INC.; DYNAX CORPORATION; E.I.
DUPONT DE NEMOURS & CO.; KIDDE-FENWALL, INC; KIDDE FIRE FIGHTING,
INC; KIDDE PLC INC.; NATIONAL FOAM, INC.; THE CHEMOURS CO.; THE
CHEMOURS COMPANY FC, LLC; TYCO FIRE PRODUCTS, LP; UTC FIRE &
SECURITY AMERICA'S, INC; and DOES 1 to 100, inclusive, Defendants,
Case No. 2:22-cv-02143-RMG (D.S.C., July 6, 2022) is a class action
against the Defendants for negligence, strict liability, defective
design, failure to warn, fraudulent concealment, medical monitoring
trust, and violation of the Uniform Voidable Transactions Act.
According to the complaint, the Defendants have failed to use
reasonable and appropriate care in the design, manufacture,
labeling, warning, instruction, training, selling, marketing, and
distribution of aqueous film forming foam (AFFF) products
containing synthetic, toxic per- and polyfluoroalkyl substances
collectively known as PFAS. The Defendants' AFFF products are
dangerous to human health because PFAS are highly toxic and
carcinogenic chemicals and can accumulate in the blood and body of
exposed individuals. The Defendants have also failed to warn public
entities and military members, including the Plaintiff, who they
knew would foreseeably come into contact with their AFFF products.
The Plaintiff used the Defendants' PFAS-containing AFFF products in
their intended manner, without significant change in the products'
condition due to inadequate warning about the products' danger. The
Plaintiff relied on the Defendants' instructions as to the proper
handling of the products, says the suit.
As a result of the Defendants' omissions and misconduct, the
Plaintiff was diagnosed with thyroid disease and commenced on-going
medical treatment inclusive of surgical intervention via a
thyroidectomy, the suit added.
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.
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.
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.
Corteva, Inc. is an American agricultural chemical and seed company
based in Wilmington, Delaware.
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-Fenwall, Inc. is a manufacturer of fire protection systems
based in Ashland, Massachusetts.
Kidde Fire Fighting, Inc. is a manufacturer of fire safety products
based in Mebane, North Carolina.
Kidde PLC is a manufacturer of fire safety products based in
Mebane, North 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.
The Chemours Company FC, LLC is a manufacturer of titanium
technologies, fluoroproducts and chemical solutions based in
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.
UTC Fire & Security America's Inc. is a manufacturer of security
and fire control systems based in Bradenton, Florida. [BN]
The Plaintiff is represented by:
Jeremy C. Shafer, Esq.
BANNER LEGAL
700 12th Street N.W., Suite 700
Washington, DC 20005
Telephone: (888) 215-7834
E-mail: jshafer@bannerlegal.com
- and –
S. James Boumil, Esq.
BOUMIL LAW OFFICES
120 Fairmount Street
Lowell, MA, 01852
Telephone: (978) 458-0507
E-mail: sjboumil@boumil-law.com
- and –
Konstantine Kyros, Esq.
KYROS LAW
17 Miles Rd.
Hingham, MA 02043
Telephone: (800) 934-2921
E-mail: kon@kyroslaw.com
ALTRU HEALTH: Suit Seeks to Certify Class of Plan Beneficiaries
---------------------------------------------------------------
In the class action lawsuit captioned as JANA R. ROSENKRANZ, JOAN
MONDRY and RAMONA DRISCOLL, individually and on behalf of all
others similarly situated, v. ALTRU HEALTH SYSTEM, THE ALTRU HEALTH
SYSTEM RETIREMENT COMMITTEE, and JOHN DOES 1-30, Case No.
3:20-cv-00168-PDW-ARS (D.N.D.), the Plaintiffs ask the Court to
enter an order certifying the following proposed Class:
"All persons, except Defendants and their immediate family
members, who were participants in or beneficiaries of the
Plan, at any time between September 9, 2014 through the date
of judgment."
Altru Health is an American healthcare provider headquartered in
Grand Forks, North Dakota.
A copy of the Plaintiffs' motion dated June 30, 2022 is available
from PacerMonitor.com at https://bit.ly/3RAueZB at no extra
charge.[CC]
The Plaintiffs are represented by:
Mark K. Gyandoh, Esq.
Gabrielle Kelerchian, Esq.
CAPOZZI ADLER, P.C.
312 Old Lancaster Road
Merion Station, PA 19066
Telephone: (610) 890-0200
Facsimile: (717) 233-4103
E-mail: markg@capozziadler.com
gabriellek@capozziadler.com
- and -
Donald R. Reavey, Esq.
CAPOZZI ADLER, P.C.
2933 North Front Street
Harrisburg, PA 17110
Telephone: (717) 233-4101
Facsimile: (717) 233-4103
E-mail: donr@capozziadler.com
AMAZON.COM INC: Pension Fund Sues Over 14.05% Drop of Stock Price
-----------------------------------------------------------------
ASBESTOS WORKERS PHILADELPHIA WELFARE AND PENSION FUND, on behalf
of itself and all others similarly situated, Plaintiff v.
AMAZON.COM, INC., ANDREW R. JASSY, BRIAN T. OLSAVSKY, and DAVID
FILDES, Defendants, Case No. 2:22-cv-00934 (W.D. Wash., July 6,
2022) is a class action against the Defendant for violations of
Sections 10(b) and 20(a) of the Securities Exchange Act of 1934 and
Rule 10b-5, promulgated thereunder.
According to the complaint, the Defendants made materially false
and misleading regarding Amazon's business, operations, and
prospects with the U.S. Securities and Exchange Commission in order
to trade Amazon common stock at artificially inflated prices
between July 30, 2021, and April 28, 2022. Specifically, the
Defendants failed to disclose that rather than necessary to meet
short-term and long-term customer demand, Amazon's rapid expansion
resulted in substantial overcapacity that drove massive losses and
would substantially deplete the company's earnings moving forward.
Indeed, by July 2021 and continuing throughout the Class Period,
Amazon's capacity growth far outpaced demand and, in response, the
Defendants made a series of intensifying cutbacks to warehouse and
fulfillment capacity, without disclosure to investors. As a result
of the foregoing, the Defendants' positive statements about
Amazon's business, operations, and prospects were materially false
and misleading, and lacked a reasonable basis, says the suit.
When the truth emerged, Amazon common stock declined from a closing
price of $2,891.93 per share on April 28, 2022 to a closing price
of $2,485.63 per share on April 29, 2022, a decline of $406.30 per
share, or 14.05 percent.
Asbestos Workers Philadelphia Welfare and Pension Fund is a
multi-employer defined benefit union pension fund based in
Philadelphia, Pennsylvania.
Amazon.com, Inc. is a global technology company headquartered in
Seattle, Washington. [BN]
The Plaintiff is represented by:
Bradley S. Keller, Esq.
John A. Tondini, Esq.
BYRNES KELLER CROMWELL LLP
1000 Second Avenue, 38th Floor
Seattle, WA 98104
Telephone: (206) 622-2000
Facsimile: (206) 622-2522
E-mail: bkeller@byrneskeller.com
jtondini@byrneskeller.com
- and –
Avi Josefson, Esq.
Adam Hollander, Esq.
Scott R. Foglietta, Esq.
BERNSTEIN LITOWITZ BERGER & GROSSMANN LLP
1251 Avenue of the Americas
New York, NY 10020
Telephone: (212) 554-1400
Facsimile: (212) 554-1444
E-mail: avi@blbglaw.com
adam.hollander@blbglaw.com
scott.foglietta@blbglaw.com
ARBY'S RESTAURANT: Jaghori Sues Over Mislabeled Steakhouse Burgers
------------------------------------------------------------------
JASON JAGHORI, individually and on behalf of all others similarly
situated v. ARBY'S RESTAURANT GROUP, INC. and INSPIRE BRANDS, INC.,
Case No. 1:22-cv-05806 (S.D.N.Y., July 7, 2022) challenges the
Defendants' false and deceptive practices in the marketing and sale
of Arby's Bacon Ranch Wagyu Steakhouse Burger and Deluxe Wagyu
Steakhouse Burger.
According to the complaint, the use of the word "wagyu" in the
names and descriptions of the Defendants' Products leads reasonable
consumers to believe that the beef in the Products is entirely
wagyu beef. However, these practices are false and misleading
because the beef used in the Products is not entirely wagyu beef.
Instead, the beef patties used in the Products contain 48% regular
angus beef. As such, the Products are falsely and deceptively
advertised in violation of the New York's consumer protection laws,
says the suit.
The Plaintiff and Class members have reasonably relied on
Defendants' deceptive naming and advertising of the Products,
reasonably believing that the beef in the Products is entirely
wagyu beef.
The Plaintiff and Class members purchased the Products and paid a
premium price based on Defendants' advertising the Products as
"wagyu," which is seen as a premium type of beef due to its unique
taste and marbling of fat. Had Plaintiff and Class members been
aware of the truth about the Products, they would not have
purchased them, or would have paid significantly less for them.
Accordingly, the Plaintiff and Class members have been injured by
Defendants' deceptive business practices, the suit added.[BN]
The Plaintiff is represented by:
Robert Abiri, Esq.
CUSTODIO & DUBEY, LLP
445 S. Figueroa Street, Suite 2520
Los Angeles, CA 90071
Telephone: (213) 593-9095
Facsimile: (213) 785-2899
E-mail: abiri@cd-lawyers.com
ATBCOIN LLC: Balestra Securities Suit Seeks to Certify Class
------------------------------------------------------------
In the class action lawsuit captioned as Balestra v. ATBCOIN LLC et
al., RAYMOND BALESTRA, individually and on behalf of all others
similarly situated, v. ATBCOIN LLC, EDWARD NG, and HERBERT W.
HOOVER, Case No. 1:17-cv-10001-VSB (S.D.N.Y.), the Lead Plaintiff
Raymond Balestra asks the Court to enter an order certifying a
Class consisting of:
"all persons who purchased or otherwise acquired the
securities of ATBCOIN, LLC directly from ATBCoin in its
initial coin offering between June 12, 2017, and September
15, 2017, inclusive, and were damaged thereby."
Excluded from the Class are: (i) all Defendants; (ii) all current
or former officers, directors or partners of ATB, its affiliates,
parents or subsidiaries; any corporation, trust or other entity in
which any Defendant has or had a controlling interest; (iii) the
members of the immediate families of the Individual Defendants;
(iv) the parents, subsidiaries and affiliates of ATB; (v) the legal
representatives, heirs, successors, or assigns of any excluded
Person; and (vi) any Person who timely and validly seeks exclusion
from the Class in accordance with the requirements of the Notice.
A copy of the Plaintiff's motion to certify class dated June 30,
2022 is available from PacerMonitor.com at https://bit.ly/3RwfVoO
at no extra charge.[CC]
The Lead Plaintiff is represented by:
Donald J. Enright, Esq.
LEVI & KORSINSKY, LLP
1101 30th Street, N.W., Suite 115
Washington, DC 20007
Telephone: (202) 524-4290
Facsimile: (202) 333-2121
BLOOMBERG LP: Adams FLSA Suit Seek to Certify Classes
-----------------------------------------------------
In the class action lawsuit captioned as SHEENA ADAMS, both
individually and on behalf of all other similarly situated persons,
v. BLOOMBERG L.P., Case No. 1:20-cv-07724-RA-JLC (S.D.N.Y.), the
Plaintiff asks the Court to enter an order allowing case to proceed
as a Fair Labor Standards Act (FLSA) collective action on behalf of
all similarly situated members of the putative FLSA Customer Sales
Representative (CSR) and Rounding Classes.
Pursuant to the agreed upon briefing schedule, Defendant's
opposition to Plaintiff's Motion is due on August 1, 2022. The
Plaintiff's reply is due on August 16, 2022.
The Plaintiffs also move for an Order:
1) authorizing Plaintiffs to issue the Notice with the
Consent to Sue form to those similarly situated members of
the putative classes by mail and email;
2) issue a reminder notice to those Class Members that have
not responded within 30 days;
3) require Bloomberg to provide Plaintiffs with the Class
Members' names, last known addresses, and email addresses
in manipulable electronic format;
4) require Bloomberg to provide dates of birth and partial
social security numbers for Class Members whose Notices are
returned without a forwarding address; and 4) require
Bloomberg to provide employee identification numbers in
order to avoid confusion between class members.
Bloomberg L.P. is a privately held financial, software, data, and
media company headquartered in Midtown Manhattan, New York City.
A copy of the Plaintiff's motion dated June 30, 2022 is available
from PacerMonitor.com at https://bit.ly/3PpSfAr at no extra
charge.[CC]
The Plaintiff is represented by:
Artemio Guerra, Esq.
HKM EMPLOYMENT ATTORNEYS LLP
153 Main Street, Suite 201
New Paltz, NY 12561
Telephone: (212) 439-5127
E-mail: aguerra@hkm.com
BOEING EMPLOYEES: Faces Arant Suit Over Zelle's Misrepresentation
-----------------------------------------------------------------
ROBERT ARANT, on behalf of himself and all others similarly
situated, Plaintiff v. BOEING EMPLOYEES' CREDIT UNION, Defendant,
Case No. 2:22-cv-00938 (W.D. Wash., July 6, 2022) is a class action
against the Defendant for violations of Washington's Consumer
Protection Act and the Electronic Funds Transfer Act and for breach
of contract including breach of the covenant of good faith and fair
dealing.
The case arises from the Defendant's alleged misrepresentation of
the Zelle money transfer service to its accountholders. The
Defendant promotes the Zelle service to its accountholders as a
fast, secure and safe way of sending money but contrary to the
representation, there is undisclosed security risk of using the
service. The Defendant fails to inform customers that by using the
service, there is no protection for accountholders who are victims
of fraud and virtually no recourse for accountholders attempting to
recoup losses due to fraud. Had the Plaintiff and Class members
known the true operation and risks of the Zelle service they would
not have signed up for and used it, says the suit.
Boeing Employees' Credit Union is a credit union headquartered in
Tukwila, Washington. [BN]
The Plaintiff is represented by:
Kira M. Rubel, Esq.
Maura S. McCoy, Esq.
THE HARBOR LAW GROUP
3615 Harborview Dr., Suite C
Gig Harbor, WA 98332
E-mail: kira@theharborlawgroup.com
maura@theharborlawgroup.com
- and –
Andrew J. Shamis, Esq.
SHAMIS & GENTILE, P.A.
14 NE 1st Ave., Suite 705
Miami, FL 33132
Telephone: (305) 479-2299
E-mail: ashamis@shamisgentile.com
- and –
Jeffrey D. Kaliel, Esq.
Sophia Goren Gold, Esq.
KALIELGOLD PLLC
1100 15the Street NW, 4th Floor
Washington, DC 20005
Telephone: (202) 350-4783
E-mail: jkaliel@kalielpllc.com
sgold@kalielgold.com
- and –
Scott Edelsberg, Esq.
EDELSBERG LAW, PA
20900 NE 30th Ave., Ste. 417
Aventura, FL 33180
Telephone: (305) 975-3320
E-mail: scott@edelsberglaw.com
BOWES & ASSOCIATES: $30K Fees & Costs Award in McIntire Suit Upheld
-------------------------------------------------------------------
In the case, ROY M. BOWES D/B/A ROY M. BOWES AND ASSOCIATES v.
MICHAEL H. McINTIRE, Case No. 21-CA-672 (La. App.), the Court of
Appeal of Louisiana, Fifth Circuit, enters an Opinion:
a. affirming the trial court's award of $20,000 to Bowes for
his attorney fees and costs, and $10,000 for his collection
fees; and
b. remanding for an award of interest agreed to by the parties
in their employment contract.
I. Introduction
After a bench trial on Plaintiff Roy M. Bowes' (d/b/a Roy M. Bowes
and Associates) Petition for Breach of Contract and Open Account
against Defendant Michael H. McIntire, relating to legal
representation, both parties seek review of the trial court's award
of $20,000 to Bowes for his attorney fees and costs relating to his
representation and $10,000 for his collection fees associated with
the prosecution of the action. McIntire further alleges on appeal
that the trial court improperly found no damages were owed on his
reconventional demand. The Court of Appeal finds no error in the
trial court's determination of appropriate attorney fees and
damages, but remands for an award of interest agreed to by the
parties in their employment contract.
II. Background
On March 29, 2019, Michael H. McIntire hired Roy M. Bowes (and his
firm Roy M. Bowes and Associates) to represent him in an
intervention suit relating to the legal fee settlement in a mass
tort suit. A motion for leave to file an intervention had been
filed against McIntire by his former co-counsel, Henry Dart, to
determine the division of the legal fees. McIntire and Bowes signed
an attorney-client employment agreement, specifying that legal
services would be billed at $350/hour, but a handwritten provision
provided for deferred payment of fees, costs, and interest "due and
payable upon the resolution of the above captioned Roache v. Alpha
case." The contract also specifies that attorney fees for
collection efforts will be charged at hourly rate of $350 or 33
1/3% of gross amount due.
Bowes and his associate, Mitchell Palmer, drafted and filed an
answer to Dart's intervention suit and represented McIntire at an
April 12, 2019 hearing on the motion to intervene. Both parties
testified that the answer, listing several pages of Dart's
professional misconduct, was anticipated to lead to a settlement.
The trial judge granted the motion to intervene, and he ordered the
parties to refile their petition and answer, as well as to submit
briefing on the issue of whether the parties were entitled to a
jury trial.
While there is disagreement over whether a jury trial was desired
before this hearing, emails between Palmer and McIntire during
April 13 and 15, 2019 reveal their agreement that a jury trial may
be best. Bowes' billing records indicate that April 26, 2019 was
the first time Palmer reviewed the "status of record and issues for
jury" when a request for jury trial would already have been
untimely. Palmer drafted a first and supplemental answer requesting
a jury trial and filed it on May 2, 2019. A supplemental memorandum
in support of jury trial was prepared and filed on May 31, 2019.
Palmer also worked on responding to Dart's discovery with McIntire,
resulting in several agitated emails from Bowes and Palmer to
McIntire regarding McIntire's responses. Bowes' billing slips show
that Palmer and Bowes met on May 31, 2019 for a half hour to
discuss whether they should withdraw due to McIntire's "failure to
properly provide appropriate discovery documents."
At a hearing on June 7, 2019, the trial judge heard motions on the
mode of the trial and substitution of Dane Ciolino as new counsel
for Dart. The trial judge found that the request for jury trial was
untimely, as it was filed more than 10 days after service of the
last pleading directed to any issue triable by a jury under La.
C.C.P. art. 1733(C). The trial judge also denied the motion for
substitution of counsel. A trial date was set for October 28, 2019.
Thereafter, McIntire inquired of Bowes as to the status of his case
with regard to the jury issue, but he received no response.
Palmer began working on a reconventional demand on June 12, 2019,
and emails from McIntire show that he was not satisfied with
Palmer's draft. Bowes and McIntire met on June 14, 2019, presumably
for a status conference, during which Bowes presented him with
copies of the invoices, and informed him that he would provide no
further services without approval of the invoiced amount. McIntire
concluded the meeting. After a June 18, 2019 telephone call between
Bowes and McIntire, Bowes sent McIntire an email attached to which
was a letter of discharge that McIntire was requested to sign.
On June 20, 2019, Palmer sent McIntire a copy of the Motion to
Withdraw by Bowes, Palmer, and Bowes & Associates, which he
intended to file if McIntire refused to discharge them from
representation. The draft motion alleged that the client failed to
"fulfill an obligation to the lawyer" and "representation will
result in unreasonable financial burden on lawyer or has been
rendered unreasonably difficult by the client." It specified that
the counsel was unable to "effectively communicate with, meet with,
and/or reach agreement with McIntire," which resulted in difficulty
completing responses to opposing counsel's discovery, inability to
analyze Dart's responses to discovery, a lack of thorough and clear
input from McIntire regarding the reconventional demand, failure to
transmit information regarding an economic/accounting expert, and a
lack of input on specifics for the Scheduling Order.
Bowes left McIntire a voicemail on June 27, 2019 stating that he
had not heard from him since June 18, and did not want to file the
motion as drafted and put in the court record all the troubles they
had experienced with him. On July 8, 2019, McIntire proposed a
joint motion to substitute himself as counsel, and mentioned that
he was still considering their bill, but wanted another attorney
familiar with the case, Damon Manning, to comment on the
reasonableness of the fees. He also requested an explanation of the
billable time for the jury issues. On July 18, 2019, McIntire went
to Bowes' office and picked up his file, signing an acknowledgment
and receipt of original documents pertaining to the entire office
file. He also notated that he was reviewing his statement of July
10, 2019.
Bowes filed a Petition for Breach of Contract and Open Account on
Aug. 24, 2019, against McIntire seeking $34,799.44 for outstanding
fees and 12% interest. On Oct. 14, 2019, McIntire filed an
exception of prematurity, alleging that fees would not be due and
payable until resolution of the Roache case. The intervention in
the Roache case was settled on Nov. 13, 2019, and a judgment
disposing of it was signed on Nov. 22, 2019. A hearing on the
exception was held on Dec. 4, 2019. The trial court denied the
motion as moot due to the settlement of the Roache case.
On Dec. 13, 2019, McIntire filed an answer and reconventional
demand claiming he was damaged as a result of being required to
expend time, costs, and expenses to defend himself, as well as
mental distress and inconvenience. Bowes answered the
reconventional demand on Jan. 23, 2020. McIntire hired counsel to
represent him in this matter, but the Bowes & Associates billing
form reflects that Bowes handled the matter himself, with minimal
assistance from Palmer and a legal assistant.
McIntire filed a motion in limine on Feb. 26, 2021, to exclude
evidence reflecting that Bowes was entitled to attorney fees for
pro se work, and to admit evidence to prove that McIntire made
settlement offers to Bowes from Dec. 2, 2019 until May 20, 2020,
which were declined without counteroffer.
A bench trial was held on March 29 and 30, 2021, and continued on
April 12 and 13, 2021. The trial court also requested post-trial
memoranda. The judgment, finding in favor of Bowes in the amount of
$20,000 for his representation of defendant, including attorney
fees and all costs associated with representation, was signed and
filed on May 13, 2021. The court additionally found in favor of
Bowes in the amount of $10,000 for prosecution of the instant case,
including all attorney fees and costs associated with this case.
The court dismissed McIntire's reconventional demand. Bowes filed a
timely motion to appeal, and McIntire filed a cross appeal.
III. Discussion
A. First Assignment of Error
Both parties claim that the trial court erred in awarding Bowes
$20,000 in attorney fees and costs for his prosecution of
McIntire's case in the class action intervention. Bowes argues that
the trial court arbitrarily reduced his fees without justification
or explanation in a breach of contract case where McIntire agreed
to the hourly rate. In contrast, McIntire contends that because
Bowes' evidence was insufficient to support an award for the amount
claimed (due to improper and excessive charges) and had declined to
render performance called for under the contract, Bowes should
receive payment under the theory of quantum meruit. McIntire
further argued that the value of Bowes' services was reduced due to
his errors and unprofessional conduct.
The Court of Appeal opines that it is well-settled that a court, in
awarding an appropriate attorney fee, should reduce the number of
hours submitted in the fee application if the claimed time is
"excessive, redundant, or otherwise unnecessary." Although the
trial court did not include a numerical breakdown in its reasons
for judgment, it says, it appears that the reduction of the hours
was not arbitrary, but rather, was supported by its finding that
the hours were unreasonable based on the court's regulation of the
legal profession. As the trial court correctly relied upon the RPC
in reviewing and reducing Bowes' fees, McIntire's quantum meruit
arguments lack merit.
B. Second Assignment of Error
Both parties claim the trial court erred in awarding Bowes $10,000
for attorney fees and costs in the collection suit. Bowes argues
that the trial judge gave no numerical/mathematical elaboration for
the collection work she thought unreasonable to support her
reduction of the contractual fee owed. McIntire claims that Bowes
should not be able to collect attorney fees for representing
himself in the collection lawsuit.
The Court of Appeal opines that giving deference to the trial
court's assessment of witnesses, we find the record supports a
reduction of the collection fee owed to Bowes based upon his lack
of credibility and veracity after the court confronted him for
apparent dishonesty in pleading that there was "no dispute of
amount owed." Furthermore, it finds no error in the trial court's
finding that Bowes' failure to compromise inflated the fees. It was
the client who requested that they avail themselves of the fee
dispute program. The trial court reasonably found that Bowes chose
to inflate his fees by refusing McIntire's request in favor of
spending two years litigating a fee that was less than the fees
spent attempting to recover the underlying debt. Attorneys should
consider that "litigation between attorneys and clients reflects
poorly upon the entire profession." Given the discretion afforded
to the trial court, we find no manifest error in its reduction of
the attorney's fees owed in the collection case.
C. Assignment of Error Three
Bowes claims the trial court erred by failing to award interest on
either the contractual amount or the collection suit amount.
In reviewing Bowes' petition, the Court of Appeal finds that the
trial judge erred in failing to award judicial interest as agreed
to by the parties in their contract, from the date the fees were
owed, upon settlement of the Roache case. While the Court of Appeal
has the authority to amend the judgment to reflect interest, there
are additional factual determinations that must be made by the
trial court upon remand.
Although McIntire's brief states that on June 14, 2021, he sent
Bowes a cashier's check for $30,000 which was returned, the Court
of Appeal is unable to consider evidence that is not in the record.
It has no authority to consider, on appeal, facts referred to in
appellate briefs if those facts are not found in the record that is
lodged in the appellate court. Therefore, it remands the case to
the trial court to determine if there was a valid tender that the
obligee failed to accept without justification in accordance with
La. C.C. art. 1869, which would "produce the effects of
performance, including termination of future interest and costs."
D. Assignment of Error 4 (McIntire's Assignment of Error)
Mr. McIntire claims the trial court erred in failing to award
damages on his reconventional demand for abuse of process.
McIntire's reconventional demand claims he suffered damages by
expending time, court costs, and expenses to defend himself, as
well as mental distress and inconvenience. The trial court found
that the Defendant did not present any evidence to support an
award.
A review of the record reveals no evidence was presented by
McIntire to prove he suffered mental distress or inconvenience. Nor
did he submit any evidence of the hours spent on this litigation,
his court costs, or attorney fees, from which the court could make
an award if it found merit in his abuse-of-process claim. The
record also lacks evidentiary support for proof of an ulterior
motive and irregularity in the process. Although the lawsuit may
have initially been premature, it was not abusive to file it when
McIntire had not made any payment of the uncontested amounts,
despite his trial testimony that he received some benefits from
Bowes' work. Thus, the Court of Appeal finds the trial court was
not manifestly erroneous in its failure to award damages on
McIntire's reconventional demand.
E. Costs of Appeal
Bowes requests that McIntire be taxed with 100% of the costs of the
appeal where McIntire also appealed.
La. C.C.P. art. 2164 allows the Court of Appeal to tax the costs of
the lower or appellate court against any party to the suit as it
may consider equitable. Although McIntire appealed the denial of
his reconventional demand, it finds that the majority of the focus
of the Court's review was dedicated to the claims made by Bowes.
Therefore, it denies his request as it finds it equitable for him
to bear the costs of this appeal.
IV. Conclusion
The Court of Appeals finds no merit in the errors relating to the
determination of reasonable attorney fees owed to Appellant Roy
Bowes. However, it remands the case to the district court for a
determination of interest properly owed from the due date.
Furthermore, it finds no merit to the assignment of error raised by
Appellee Michael McIntire, regarding the trial court's findings
relating to his reconventional demand.
A full-text copy of the Court's July 6, 2022 Opinion is available
at https://tinyurl.com/33r32nxk from Leagle.com.
Roy M. Bowes -- rmb@rboweslaw.com -- Mitchell A. Palmer, COUNSEL
FOR PLAINTIFF/APPELLANT, ROY M. BOWES D/B/A ROY M. BOWES AND
ASSOCIATES.
S. Catherine Leary, Michael H. McIntire, COUNSEL FOR
DEFENDANT/APPELLEE-2ND APPELLANT, MICHAEL H. McINTIRE.
BP EXPLORATION: E.D. Louisiana Dismisses Grant Suit With Prejudice
------------------------------------------------------------------
In the case, MARCUS GRANT v. BP EXPLORATION & PRODUCTION, INC., ET
AL., SECTION "R" (4), Civil Action No. 17-4334 (E.D. La.), Judge
Sarah S. Vance of the U.S. District Court for the Eastern District
of Louisiana grants the Defendants' motion to exclude the testimony
of Dr. Jerald Cook and their motion for summary judgment.
I. Introduction
Before the Court is BP Exploration & Production, Inc., BP American
Production Co., and BP p.l.c.'s (collectively the "BP parties")
motion to exclude the testimony of the Plaintiff's general
causation expert, Dr. Cook. Plaintiff Grant opposes the motion.
Also before the Court is the BP parties' motion for summary
judgment. The Plaintiff also opposes this motion.
II. Background
The case arises from Plaintiff Grant's alleged exposure to toxic
chemicals following the Deepwater Horizon oil spill in the Gulf of
Mexico. The Plaintiff alleges that he worked as a "recovery
technician" on the beaches of Pascagoula, Jackson, and Horn Island,
Mississippi from Sept. 1, 2011 through Dec. 31, 2011.
Mr. Grant asserts that he "cleaned oil and oilcovered debris from
sand and coastal areas," and as a result, was exposed to both oil
and dispersants. He also represents that this exposure has resulted
in the following conditions that "persist today:" breathing
difficulties, bronchitis, "SOB," throat irritation, congestion,
headaches, anxiety, impetigo, convulsions, seizures, eye burning,
eye irritation, skin itchiness, lesions, boils, cellulitis of lower
extremities, dermatitis tinea corpus, and decreased sense of
smell.
Mr. Grant's case was originally part of the multidistrict
litigation ("MDL") pending before Judge Carl J. Barbier. His case
was severed from the MDL as one of the "B3" cases for plaintiffs
who either opted out of, or were excluded from, the Deepwater
Horizon Medical Benefits Class Action Settlement Agreement. Grant
is a plaintiff who opted out of the settlement. After the
Plaintiff's case was severed, it was reallocated to the Court. The
Plaintiff asserts claims for general maritime negligence,
negligence per se, and gross negligence against the defendants as a
result of the oil spill and its cleanup.
To demonstrate that exposure to crude oil, weathered oil, and
dispersants can cause the symptoms Grant alleges in his complaint,
he offers the testimony of Dr. Jerald Cook, an occupational and
environmental physician. Dr. Cook is the Plaintiff's sole expert
offering an opinion on general causation.
In his report, Dr. Cook utilizes a "general causation approach to
determine if a reported health complaint can be from the result of
exposures sustained in performing oil spill cleanup work." Cook
concludes that "general causation analysis indicates" that the
following conditions "can occur in individuals exposed to crude
oil, including weathered crude oil:" chronic rhinitis, chronic
sinusitis, allergic rhinitis, chronic obstructive pulmonary
disease, bronchitis, asthma, reactive airway disease, dermatitis,
skin irritation, skin rash, skin itching, acute conjunctivitis,
chronic conjunctivitis, and dry eye disease.
The BP parties now move to exclude Dr. Cook's expert opinion,
arguing that it is unreliable and unhelpful. The Defendants also
move for summary judgment, asserting that if Dr. Cook's general
causation opinion is excluded, the Plaintiff is unable to carry his
burden on causation. The Plaintiff opposes both motions.
III. Discussion
A. Motion to Exclude
At issue is whether the Plaintiff has produced admissible general
causation evidence. To prove that exposure to the chemicals in oil
and dispersants can cause the medical conditions Grant alleges, the
Plaintiff offers the testimony of an environmental toxicologist,
Dr. Cook. Dr. Cook asserts that his report is "based on the
scientific methods used in the field of environmental toxicology."
More specifically, he states that his "causation analysis regarding
health effects of oil spill exposures draws on the process of
evaluating epidemiology studies and the work from established
expert groups similar to the Surgeon General's Advisory Committee
to make a more likely than not conclusion."
Based on Dr. Cook's report, the Defendants argue that Grant is
unable to prove general causation with relevant and reliable expert
testimony. They contend that Dr. Cook's general causation report is
unreliable because he failed to: (1) verify Grant's diagnoses; (2)
follow the accepted methodology for analyzing epidemiology and
adequately evaluate the scientific literature; and (3) identify the
harmful level of exposure to any chemical that can cause any of the
Plaintiff's alleged medical conditions. The Defendants further
argue that even if Dr. Cook's report were reliable, it is unhelpful
because it addresses "few if any" of Grant's medical complaints,
and fails to specify what particular toxins can cause which
particular conditions. They also note that two other sections of
the Court have excluded Dr. Cook's report for similar reasons.
Judge Vance holds that Dr. Cook's failure to identify the level of
exposure to a relevant chemical that can cause the conditions
asserted in the Plaintiff's complaint renders his opinion
unreliable, unhelpful, and incapable of establishing general
causation. Despite the acknowledged importance of determining the
dose-response relationship, Dr. Cook's report fails to identify
what level of exposure is necessary to be capable of producing the
adverse health effects that he analyzes. Notably, neither Dr. Cook,
nor the two studies, specify a base level of exposure that is
necessary to cause rhinosinusitis.
In addition to finding Dr. Cook's general causation analysis
unreliable, Judge Vance also finds that Dr. Cook's report is
unhelpful to the factfinder for many of the same reasons. Dr.
Cook's opinion is unhelpful because of his inability to link any
specific chemical that Grant was allegedly exposed to, at the level
to which he was exposed, to the conditions that he alleges in his
complaint.
In sum, the Plaintiff, as the party offering the testimony of Dr.
Cook, has failed to meet his burden of establishing the reliability
and relevance of Dr. Cook's report. Given that Dr. Cook's report is
unreliable and fails to provide the "minimal facts necessary" to
establish general causation in the case, Judge Vance grants the
Defendants' motion to exclude Dr. Cook's testimony.
B. Motion for Summary Judgment
In their motion for summary judgment, the Defendants contend that
they are entitled to summary judgment "on two independent bases"
because the Plaintiff has cannot establish either general or
specific causation. Although the parties dispute whether the
Plaintiff is required to present admissible expert testimony to
establish specific causation, neither party contests that expert
testimony is necessary to establish general causation.
Because she excludes Dr. Cook's opinion on general causation, and
the Plaintiff has produced no other admissible general causation
evidence in the case, Judge Vance need not reach the question of
specific causation. Accordingly, she grants the Defendants' motion
for summary judgment.
IV. Conclusion
For the foregoing reasons, Judge Vance grants the BP parties'
motion to exclude the testimony of Dr. Cook. She also grants their
motion for summary judgment. The Plaintiff's claims are dismissed
with prejudice.
A full-text copy of the Court's July 6, 2022 Order & Reasons is
available at https://tinyurl.com/2p88nthn from Leagle.com.
CALIFORNIA: Ninth Circuit Affirms Dismissal of Mendel v. CPUC Suit
------------------------------------------------------------------
In the case, S. PATRICK MENDEL, Plaintiff-Appellant v. LIANE
RANDOLPH, in her individual and official capacity as Commissioner,
California Public Utilities Commission, et al.,
Defendants-Appellees and Defendants, Case No. 21-15910 (9th Cir.),
the U.S. Court of Appeals for the Ninth Circuit affirms the
district court's order dismissing with prejudice his civil action.
The other Defendants-Appellees and Defendants are CLIFFORD
RECHTSCHFFEN, in his individual and official capacity as
Commissioner, California Public Utilities Commission; MARTHA GUZMAN
ACEVES, in her individual and official capacity as Commissioner,
California Public Utilities Commission; MARITZA PEREZ, in her
individual and official capacity as Section Supervisor Badge #11
Transportation License Section California Public Utilities
Commission; CALIFORNIA PUBLIC UTILITIES COMMISSION; UBER
TECHNOLOGIES, INC.; RAISER-CA LLC; UBER USA, LLC; TRAVIS KALANICK,
Board Member, former CEO; CITY AND COUNTY OF SAN FRANCISCO; LICHTEN
& LISS-RIORDAN P.C., a law firm; SHANNON LISS-RIORDAN, Attorney of
the law firm Lichten & Liss-Riordan, PC; ADELAIDE PAGANO, Attorney
of the law firm Lichten & Liss-Riordan, P.C.; ANNE KRAMER, Attorney
of the law firm Lichten & Liss-Riordan, P.C., Defendants-Appellees,
and ELAINE L. CHAO, in her official capacity as U.S. Secretary of
Transportation; XAVIER BECERRA, in his official capacity as
Attorney General of the State of California; RAYMOND MARTINEZ, in
his official capacity as Administrator, Federal Motor Carrier
Safety Administration; LORETTA BITNER, in her official capacity as
Chief, Office of Enforcement and Compliance, Federal Motor Carrier
Safety Administration; MICHAEL PICKER, in his individual and
official capacity as President, Commissioner, California Public
Utilities Commission; CARLA J. PETERMAN, in her individual and
Official Capacity as Commissioner, California Public Utilities
Commission; GARRETT CAMP, Board Member and Founder; RYAN GRAVES,
Board Member, former CEO; LYFT, INC.; LOGAN GREEN, CEO of Lyft and
Board Member; JOHN ZIMMER, President of Lyft and Board Member;
WILLIAM P. BARR, Attorney General; SIDNEY R. THOMAS, Chief United
States Circuit Judge of the United States Court of Appeals for the
Ninth Circuit, in his individual and official Administrative
capacity; PHYLLIS J. HAMILTON, Chief District Judge, in her
individual and official Administrative Capacity of the United
States District Court of the Northern District of California;
JOSEPH J. SIMONS, in his official capacity as Chairman, Federal
Trade Commission, Defendants.
Plaintiff Mendel appeals pro se from the district court's order
dismissing with prejudice his civil action against the Uber
Defendants, the California Public Utilities Commission (CPUC)
Defendants, the City Defendants, and the LLR Defendants. Mendel
alleged a variety of federal claims arising from the purported
unlawfulness of the Uber Defendants' ridesharing business model and
certain taxes, permits, and fees required by local authorities.
The Ninth Circuit reviews de novo. It holds that the district court
properly dismissed Mendel's federal claims against the Uber
Defendants because they were barred by res judicata arising from
the judgment in Overton v. Uber Technologies, Inc., 333 F.Supp.3d
927, 952 (N.D. Cal. 2018). See Tahoe-Sierra Pres. Council, Inc. v.
Tahoe Reg'l Plan. Agency, 322 F.3d 1064, 1077-78 (9th Cir. 2003).
Mendel's claims that Uber was violating federal motor carrier and
antitrust laws were "based on the same nucleus of facts" as the
claims adjudicated in Overton.
The district court also properly dismissed Mendel's claims against
the CPUC Defendants as barred by res judicata arising from the
Overton judgment. The Ninth Circuit notes that both suits alleged
that certain CPUC programs and fees violated federal law, and those
claims were already rejected by Overton. That Mendel's permit was
suspended for non-payment of fees after the Overton judgment was
rendered is simply a new alleged damage from the
supposedly-unlawful earlier conduct and does not defeat the
application of res judicata.
The district court further properly dismissed Mendel's claims
against the City Defendants for failing to state cognizable claims.
The Ninth Circuit finds that Mendel did not adequately plead that
federal laws regulating interstate commerce or transportation
between states apply to the transportation services he provides.
Lastly, the Ninth Circuit holds that he district court also
properly dismissed Mendel's California breach of fiduciary duty
claim against the LLR Defendants. It says, Mendel's claim premised
on the LLR Defendants' conduct in O'Connor v. Uber Technologies,
Inc., No. 13-cv-03826-EMC, 2019 WL 4394401, at *4-6 (N.D. Cal.
Sept. 13, 2019), was barred by issue preclusion because the
district court there had overruled Mendel's objections to that
settlement and determined that counsel's representation of the
class had been adequate. The allegations of Mendel's complaint were
wholly insufficient to state any claim premised on the LLR
Defendants' purported violations of their duties to unspecified
class action claimants in other unspecified cases.
The Ninth Circuit does not consider arguments raised for the first
time on appeal or matters not specifically and distinctly raised
and argued in the opening brief.
A full-text copy of the Court's July 6, 2022 Memorandum is
available at https://tinyurl.com/mr2xz73b from Leagle.com.
CARDINAL HEALTH: Bare Appeals Case Dismissal to 6th Circuit
-----------------------------------------------------------
AARON BARE is taking an appeal from a court ruling dismissing his
lawsuit entitled Aaron Bare, Plaintiff, on behalf of himself and
all others similarly situated, v. Cardinal Health, Inc., Defendant,
Case No. 3:21-cv-00389, in the United States District Court for the
Eastern District of Tennessee.
On August 21, 2021, Cardinal Health instituted a COVID-19 policy
that required all salaried employees receive a COVID-19 vaccine by
October 4, 2021. The Plaintiff, a senior pharmacist for Cardinal
Health, applied for a religious accommodation, which Cardinal
Health initially denied.
As previously reported in the Class Action Reporter, the lawsuit,
filed on November 17, 2021, sought a temporary restraining order
against Cardinal Health to prevent it from firing the Plaintiff
after the vaccination deadline of December 6, 2021.
On December 3, 2021, the Plaintiff filed his first amended
complaint, seeking class certification under Rule 23(a) of the
Federal Rules of Civil Procedure and asserting that Cardinal
Health's COVID-19 policy was discriminatory because it provided a
sham religious accommodation process. He requested the court to
force Cardinal Health to provide permanent religious
accommodations, not subject to further review, to its mandatory
vaccination policy.
Cardinal Health moved to dismiss the Plaintiff's first amended
complaint for failure to state a claim on December 13, 2021.
On December 22, 2021, the Plaintiff filed a second amended
complaint in which he sought to add Christopher Davis as an
additional named Plaintiff.
On March 8, 2022, Judge Clifton L. Corker granted the Defendant's
motion to dismiss and denied the Plaintiff's second amended
complaint. The court reasoned that Bare lacked standing because he
received a religious accommodation and there was no certainly
impending injury that he faced. The court also dismissed with
prejudice the Plaintiff's first amended complaint.
On April 5, 2022, the Plaintiff filed a motion to alter judgment
under Rule 59(e) of the Federal Rules of Civil Procedure. Judge
Clifton L. Corker denied his motion on June 7, 2022, and ruled that
Bare fails to rest his Rule 59(e) motion on any of the grounds that
would support altering the court's judgment.
The appellate case is captioned as Aaron Bare v. Cardinal Health,
Inc., Case No. 22-5557, in the United States Court of Appeals for
the Sixth Circuit, filed on June 29, 2022.
The briefing schedule in the Appellate Case states that:
-- Appellant brief is due on August 8, 2022; and
-- Appellee brief is due on September 7, 2022. [BN]
Plaintiff-Appellant AARON BARE, on behalf of himself and all others
similarly situated, is represented by:
Russell Lee Egli, Esq.
LAW OFFICE OF RUSSELL L. EGLI
11109 Lake Ridge Drive
Knoxville, TN 37934
Telephone: (865) 304-4125
E-mail: russelleglilaw@gmail.com
Defendant-Appellee CARDINAL HEALTH, INC. is represented by:
Craig A. Cowart, Esq.
JACKSON LEWIS
999 S. Shady Grove Road, Suite 110
Memphis, TN 38120
Telephone: (901) 462-2600
E-mail: craig.cowart@jacksonlewis.com
CONSULATE NYC: Lopez Class Suit Seeks Unpaid Wages Under FLSA, NYLL
-------------------------------------------------------------------
CINDY LOPEZ, on behalf of herself, FLSA Collective Plaintiffs, and
the Class v. THE CONSULATE NYC LLC d/b/a THE CONSULATE, MMI 2020
LLC d/b/a RECETTA NYC, METODIJA MIHAJLOV, MILJAN KOMNENIC, and IGOR
DRCA, Case No. 1:22-cv-05768 (S.D.N.Y., July 7, 2022) seeks to
recover unpaid overtime, unpaid wages, including overtime, due to
time shaving; unpaid wages, including overtime, due to
misclassification of non-exempt workers as exempt; statutory
penalties; liquidated damages; and attorney's fees and costs
pursuant to Fair Labor Standards Act and the New York Labor Law.
The Defendants collectively own and operate two (2) restaurants.
Both Restaurants are operated as a single integrated enterprise
under the common control of the Corporate and Individual
Defendants. Specifically, the Restaurants are engaged in related
activities, share common ownership, and have a common business
purpose.[BN]
The Plaintiff is represented by:
C.K. Lee, Esq.
Anne Seelig, Esq.
LEE LITIGATION GROUP, PLLC
148 West 24th Street, 8th Floor
New York, NY 10011
Telephone: (212) 465-1180
Facsimile: (212) 465-1181
CRUNCH LLC: Hanyzkiewicz Files ADA Suit in E.D. New York
--------------------------------------------------------
A class action lawsuit has been filed against Crunch, LLC. The case
is styled as Marta Hanyzkiewicz, on behalf of herself and all
others similarly situated v. Crunch, LLC, Case No. 1:22-cv-03984
(E.D.N.Y., July 7, 2022).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Crunch Fitness -- https://www.crunch.com/ -- is a U.S.-based brand
of over 400 franchised and corporate owned fitness clubs located in
the United States, Canada, Spain, Portugal, Costa Rica, and
Australia.[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
DOLE PACKAGED: Jackson Suit Removed from State Ct. to S.D. Illinois
-------------------------------------------------------------------
The class action lawsuit captioned as JAMIE JACKSON, individually
and on behalf of all other similarly-situated citizens of Illinois
and the United States v. DOLE PACKAGED FOODS, LLC, Case No.
22-LA-0022, (Filed Jan. 12,2022) was removed from the Circuit Court
for the Twentieth Judicial Circuit, St. Clair County to the United
States District Court for the Southern District of Illinois on July
7, 2022.
The Southern District of Illinois Court Clerk assigned Case No.
3:22-cv-01448 to the proceeding.
The suit arises out of Dole's alleged false and misleading
marketing and advertising of the Dole(TM) Fruit Bowl(TM) products
labeled "in 100% fruit juice" including Cherry Mixed Fruit, Diced
Apples, Diced Pears, Mandarin Oranges, Mixed Fruit, Pineapple
Tidbits, Red Grapefruit Sunrise, Tropical Fruit, and Yellow Cling
Diced Peaches.
In the Complaint, the Plaintiff alleges four causes of action
against Dole:
a. Violation of the Illinois Consumer Fraud and Deceptive
Business Practices Act. (Deceptive Practices);
b. Violation of the Illinois Consumer Fraud and Deceptive
Business Practices Act. (Unfair Practices)
c. Breach of Express Warranty Applicable to the Nationwide
Class.
d. Unjust Enrichment Applicable to the Nationwide Class.
The Plaintiff brings this action as a putative class action. The
Plaintiff seeks to certify both an Illinois Class and a Nationwide
Class, which allegedly consist of "thousands of purchasers."
The Plaintiff seeks injunctive relief, compensatory damages,
statutory and punitive damages, pre- and post- judgment interest,
and attorneys' fees, among other relief.[BN]
The Plaintiff is represented by:
David C. Nelson, Esq.
NELSON & NELSON, ATTORNEYS AT LAW, P.C.
429 North High Street, P.O. Box Y
Belleville IL 62220
Telephone: (618) 277-4000
E-mail: dnelson@nelsonlawpc.com
- and -
Matthew H. Armstrong, Esq.
ARMSTRONG LAW FIRM LLC
8816 Manchester Road No. 109
St. Louis, MO 6344
Telephone: (314) 258-0212
E-mail: matt@mattarmstronglaw.com
- and -
Stuart L. Cochran, Esq.
COCHRAN LAW PLLC
12720 Hillcrest Road Suite 1045
Dallas, TX 75230
Telephone: (972) 387-4040
E-mail: stuart@scochranlaw.com
The Defendant is represented by:
Ruben I. Gonzalez, Esq.
Sarah L. Brew, Esq.
Tyler A. Young, Esq.
Rory Collins, Esq.
FAEGRE DRINKER BIDDLE & REATH LLP
2200 Wells Fargo Center
90 S. Seventh Street
Minneapolis, MN
Telephone: (612) 766-7000
Facsimile: (612) 766-1600
E-mail: sarah.brew@faegredrinker.com
tyler.young@faegredrinker.com
rory.collins@faegredrinker.com
ruben.gonzalez@faegredrinker.com
DREAMCATCHER BROADCASTING: King Sues Over Price Fixing Cartel
-------------------------------------------------------------
KING FURS, INC., individually and on behalf of all other similarly
situated v. DREAMCATCHER BROADCASTING, LLC; THE E.W. SCRIPPS
COMPANY; GRIFFIN COMMUNICATIONS, LLC; FOX CORPORATION; MEREDITH
CORPORATION; NEXSTAR MEDIA GROUP, INC.; GRAY MEDIA GROUP; SINCLAIR
BROADCAST GROUP, INC.; , INC.; TRIBUNE BROADCASTING COMPANY, LLC;
AND TRIBUNE MEDIA COMPANY, Case No. 1:22-cv-03492 (W.D. Tenn., July
7, 2022) arises from a price fixing cartel facilitated by an
anticompetitive information exchange between and among certain
major television station -- firms that collectively account for
billions of dollars in annual broadcast television spot advertising
revenue -- secretly orchestrated a unitary, overarching scheme to
supra-competitively impact the price levels of broadcast television
spot advertisements by agreeing to fix prices and exchange
competitively sensitive historic, current, and forward-looking
sales data, including inventory or pacing data.
According to the complaint, pacing data is used to compare a
broadcast station's revenues booked for a certain time period to
the revenues booked for the same point in time in the previous year
(the exchange of which allows the Defendants to forecast their
would-be competitors' remaining inventory of broadcast television
spot advertising), typically expressed as a plus or minus
percentage (e.g., plus or minus 20%).
Plaintiff King Furs is a furrier and jeweler located in Memphis,
Tennessee, and is incorporated under Tennessee state law. King Furs
purchased broadcast television spot advertising during the Class
Period directly from at Memphis WREG, which is owned by the
Defendant Nexstar Media. In addition, King Furs purchased broadcast
television spot advertising during the Class Period directly from
WMC, which is owned by the Defendant Gray Television, Inc.[BN]
The Plaintiff is represented by:
Edward M. Bearman, Esq.
JG LAW FIRM
780 Ridge Lake Blvd., No. 202
Memphis, TN 38120
Telephone: (901) 682-3450
E-mail: ebearman@jglawfirm.com
- and -
Todd M. Schneider, Esq.
Matthew S. Weiler, Esq.
Sunny S. Sarkis, Esq.
SCHNEIDER WALLACE
COTTRELL KONECKY LLP
2000 Powell Street, Suite 1400
Emeryville, CA 94608
Telephone: (415) 421-7100
E-mail: tschneider@schneiderwallace.com
mweiler@schneiderwallace.com
ssarkis@schneiderwallace.com
- and -
Christopher T Hellums, Esq.
Emily Irvin Curran, Esq.
PITTMAN, DUTTON, HELLUMS,
BRADLEY & MANN, P.C.
2001 Park Place North, No. 1100
Birmingham, AL 35203
Telephone: (205) 322-8880
E-mail: emily@pittmandutton.com
chrish@pittmandutton.com
EARLY WARNING: Faces Hope Suit Over Zelle Money Transfer Fraud
--------------------------------------------------------------
DELE HOPE, individually, and on behalf of all others similarly
situated v. EARLY WARNING SERVICES, LLC D/B/A/ ZELLE, Case No.
2:22-cv-04639 (C.D. Cal., July 7, 2022) is a lawsuit brought as a
class action on behalf of Plaintiff and thousands of similarly
situated Zelle money transfer users who have been the victim of
fraud on the Zelle service; who incurred losses due to fraud that
have not been reimbursed by their banks or credit unions; and who
were deceived by the marketing representations of Zelle into using
its service, despite the major risks associated therewith.
Zelle is a payment transfer service wholly owned and operated by
seven of the largest banks in the U.S.
According to the complaint, Zelle encourages bank accountholders to
sign up for the service by marketing itself as a fast, safe and
secure way for consumers to send money. This is false. In fact,
there are huge, undisclosed security risks of using the service,
including from fraudsters who regularly exploit the service, the
lawsuit says.
Zelle's marketing representations never inform users that consumers
-- not Zelle or the banks through whom money is transferred -- bear
the full risk of these grave security and fraud threats, the
lawsuit added.[BN]
The Plaintiff is represented by:
Scott Edelsberg, Esq.
EDELSBERG LAW, P.A.
1925 Century Park East, Suite 1700
Los Angeles, CA 90067
Telephone: (305) 975-3320
Facsimile: (786) 623-0915
E-mail: scott@edelsberglaw.com
- and -
Sophia G. Gold, Esq.
Jeffrey D. Kaliel, Esq.
KALIELGOLD PLLC
1100 15th Street NW, 4th Floor
Washington, D.C. 20005
Telephone: (202) 350-4783
E-mail: jkaliel@kalielpllc.com
sgold@kalielgold.com
EDISON LIQUIDATING: Waller Appeals Ruling to N.Y. Appellate Court
-----------------------------------------------------------------
BARBARA WALLER, et al., are taking an appeal from a court order
entered in the lawsuit entitled Barbara Waller, et al., Plaintiffs,
individually and on behalf of all others similarly situated, v.
Edison Liquidating, LLC, et al., Defendants, Case No. 152254/2019,
in the New York Supreme Court, County of New York.
As previously reported in the Class Action Reporter, the lawsuit,
filed on March 4, 2019, seeks to recover wages and benefits which
Plaintiffs were statutorily and contractually entitled to receive
pursuant to New York Labor Law, New York Codes, Rules and
Regulations, New York Public Health Law and Title 6, Section 6-109
of the New York City Administrative Code.
Edison Liquidating operates as Edison Home Health Care where
Waller
worked as a home health aide, providing personal care, assistance,
health-related tasks and other home care services to clients
within
the State of New York. Waller worked 24-hour shifts, generally
working more than 40 hours per week but was only paid for
approximately 13 hours of her 24-hours shifts. She was forced to
eat her meals between her daily duties and did not receive the
"spread of hours" premium of one additional hour at the minimum
wage rate for the days in which she worked 10 or more hours, notes
the complaint.
The appellate case is captioned Barbara Waller, et al. v. Edison
Liquidating, LLC, et al., Case No. 22-02852, in the New York
Appellate Division - 1st Dept, filed on July 5, 2022. [BN]
Plaintiffs-Petitioners BARBARA WALLER, et al., individually and on
behalf of all others similarly situated, are represented by:
Lloyd R. Ambinder, Esq.
VIRGINIA & AMBINDER, LLP
40 Broad Street, Seventh Floor
New York, NY 10004
Telephone: (212) 943-9080
Facsimile: (212) 943-9082
- and -
Laureve D. Blackstone, Esq.
LEVY RATNER
80 Eighth Avenue, 8th Floor
New York, NY 10011
Telephone: (212) 627-8100
Facsimile: (212) 627-8182
E-mail: lblackstone@levyratner.com
ENHANCED RECOVERY: Dunn Suit Remanded to Rowan County Super. Court
------------------------------------------------------------------
In the case, DEDE DUNN and MURIEL LYTLE, on behalf of themselves
and others similarly situated, Plaintiffs v. ENHANCED RECOVERY
COMPANY, LLC, Defendant, Case No. 21-CV-665 (M.D.N.C.), Judge
Thomas D. Schroeder of the U.S. District Court for the Middle
District of North Carolina grants the Plaintiffs' motion to remand
and denies as moot the Plaintiffs' motion for partial judgment.
I. Background
The putative class action alleges violations of state and federal
law related to debt collection activity. Defendant Enhanced
Recovery Co. ("ERC") is a debt collector and collection agency
incorporated under the laws of Delaware with a principal place of
business in Florida. ERC is regularly engaged in the business of
collecting debts owed by consumers in North Carolina. Plaintiffs
Dede Dunn and Muriel Lytle are citizens and residents of North
Carolina and allegedly owe debts to ERC.
The Plaintiffs commenced the action by filing their complaint in
the General Court of Justice, Superior Court Division, of Rowan
County, North Carolina, on July 9, 2021. The complaint alleges that
in the process of seeking to collect the alleged debt, ERC
unlawfully shared their sensitive financial information with
unauthorized third-party vendors in violation of the Fair Debt
Collection Practices Act, 15 U.S.C. Section 1692 ("FDCPA"), the
North Carolina Debt Collection Act, N.C. Gen. Stat. Section 58-50
et seq. ("NCDCA"), and the North Carolina Unfair and Deceptive
Trade Practices Act, N.C. Gen. Stat. Section 75-1.1.
On August 25, ERC removed the action to this court asserting
federal question jurisdiction pursuant to 28 U.S.C. Section 1331.
The Plaintiffs filed an amended complaint on October 10, adding a
claim under the North Carolina Collection Agency Act, N.C. Gen.
Stat. Section 58-70. ERC filed an answer, generally denying the
Plaintiffs' allegations.
The Plaintiffs now move the court to remand the case to state
court, arguing they lack standing for the federal claim and
therefore the court lacks jurisdiction. They also move the Court
for partial judgment on the pleadings, arguing that the briefing
makes clear that ERC violated the FDCPA and NCDCA, and the only
issues to be determined at a later date are class certification and
damages. ERC opposes both motions.
II. Analysis
The Court applies the usual test for analyzing standing at the
pleadings stage and will accept as true the factual allegations in
the complaint. A party invoking federal jurisdiction must establish
standing for a court to review his claims. As ERC is the party
invoking federal jurisdiction, it must show that the complaint
includes "clearly alleged facts demonstrating each element" of
standing. To establish standing, a party must first show that the
plaintiff has suffered an "injury in fact." That injury must be
"fairly traceable to the challenged conduct of the defendant, and
likely to be redressed by a favorable judicial decision."
To suffice, the allegations in the complaint must claim that a
plaintiff has suffered a concrete harm. Tangible harms, such as
physical or monetary harms, "readily qualify as concrete injuries
under Article III," citing TransUnion LLC v. Ramirez, 141 S.Ct.
2190, 2204 (2021). Intangible harms may also qualify as concrete
injuries. Those harms are sufficiently concrete when they have a
"close relationship to harms traditionally recognized as providing
a basis for lawsuits in American courts."
A plaintiff does not "automatically satisfy the injury-in-fact
requirement whenever a statute grants a person a statutory right
and purports to authorize that person to sue to vindicate that
right." Put differently, "an injury in law is not an injury in
fact." At the pleading stage, "general factual allegations of
injury resulting from the defendant's conduct may suffice."
Judge Schroeder opines that the allegations in the complaint and
amended complaint, even if true, merely assert that ERC violated
the FDCPA without the Plaintiffs' consent. Because the Plaintiffs
have alleged only a statutory violation and not a concrete injury
in fact, subject matter jurisdiction is lacking and remand is
necessary.
Among other things, Judge Schroder finds that the Plaintiffs here
have alleged no concrete injury because there is no allegation that
the information disseminated by ERC to the third-party mailing
vendor contained any misleading information akin to the credit
files at issue in TransUnion. The original complaint is also silent
on the type of harm the Plaintiffs are alleged to have suffered
from ERC's illegal sharing of information to the third-party
vendor. Nowhere do the Plaintiffs allege what harm was caused by
ERC's actions, merely alleging instead that ERC violated a statute
and that doing so was "unfair." The Plaintiffs' amended complaint
provides no additional insight. ERC has not "identified specific
allegations of injury in fact from the alleged disclosure at
issue," and, as such, "the Court does not have subject matter
jurisdiction and remand is appropriate.
ERC proffers numerous arguments against this conclusion. Each is
unpersuasive, according to Judge Schroder. Section 1447(c) clearly
states that "if at any time before final judgment it appears that
the district court lacks subject matter jurisdiction, the case will
be remanded." In addition, because the Plaintiffs' motion to remand
is based on the sufficiency of the allegations of the complaint
which the Court accepts as true, no discovery is needed. Moreover,
as already noted, a sufficient showing can be made where the
allegations of the complaint are themselves deficient. Finally, the
conclusion that a violation of the FDCPA, without an articulation
of any concrete harm, is insufficient to confer standing is
consistent with the vast majority of cases to have addressed the
issue.
III. Conclusion
For the reasons stated, Judge Schroeder grants the motion to remand
for lack of subject matter jurisdiction over the FDCPA claim, and
remands the case to the General Court of Justice, Superior Court
Division, of Rowan County, North Carolina. He denies without
prejudice as moot the Plaintiffs' motion for partial judgment on
the pleadings as the Court lacks subject matter jurisdiction.
A full-text copy of the Court's July 6, 2022 Memorandum Opinion &
Order is available at https://tinyurl.com/mpb6495e from
Leagle.com.
ESSENTIA HEALTH: Order Setting Class Cert. Deadlines Entered
------------------------------------------------------------
In the class action lawsuit captioned as Kraft, et al., v. Essentia
Health et al., Case No. 3:20-cv-00121 (D.N.D), the Hon. Judge
entered an order setting class certification deadlines / hearings
as follows:
-- The Plaintiffs' Class Certification March 15, 2023
Expert Disclosures and Reports due by:
-- The Defendants' Class Certification May 1, 2023
Expert Disclosures and Reports due by:
-- The Plaintiffs' Rebuttal ClassJ June 5, 2023
Certification Expert Reports due by:
-- The Plaintiffs' Motion for Class March 15, 2023
Certification due by:
-- The Defendants' Response due by: May 1, 2023
-- The Plaintiffs' Reply due by: June 5, 2023
The nature of suit states Contract -- contract product liability.
Essentia Health is an integrated healthcare system with facilities
in Minnesota, Wisconsin, and North Dakota.[BN]
FIRST AMERICAN: Abramson Sues Over Unsolicited Telemarketing Calls
------------------------------------------------------------------
The case, STEWART ABRAMSON, individually and on behalf of a class
of all persons and entities similarly situated, Plaintiff v. FIRST
AMERICAN HOME WARRANTY CORPORATION, Defendant, Case No.
2:22-cv-01003-MRH (W.D. Penn., July 9, 2022) is brought by the
Plaintiff as a class action against the Defendant to obtain redress
for its alleged illegal telemarketing practice that violated the
Telephone Consumer Protection Act.
The Plaintiff asserts that he received a pre-recorded telemarketing
call from the Defendant to his residential telephone line number
412-XXX-0916 on July 5, 2022. The Plaintiff alleges that the
Defendant uses automated telemarketing calls in an attempt to
promote its “Premier Plan” warranty and solicit new clients
without obtaining prior express consent from the called parties.
According to the complaint, the Plaintiff and other similarly
situated individuals were harmed by the Defendant's unsolicited
telemarketing calls because they were deprived of legitimate use of
their phones, and their privacy was improperly invaded. Thus, on
behalf of himself and all other similarly situated individuals, the
Plaintiff seeks an injunctive relief prohibiting the Defendant from
calling residential telephone numbers using a pre-recorded message
to promote its products and services. The Plaintiff also seeks
statutory damages of $500 for each violation of the TCPA and $1,500
for each knowing or willful violation, and other relief as the
Court deems just and proper, says the suit.
First American Home Warranty Corporation provides home warranty
services to consumers. [BN]
The Plaintiff is represented by:
Jeremy C. Jackson, Esq.
BOWER LAW ASSOCIATES, PLLC
403 S. Allen St., Suite 210
State College, PA 16801
Tel: (814) 234-2626
E-mail: jjackson@bower-law.com
- and –
Anthony I. Paronich, Esq.
PARONICH LAW, P.C.
350 Lincoln St., Suite 2400
Hingham, MA 02043
Tel: (617) 485-0018
E-mail: anthony@paronichlaw.com
GRAND DESIGN: Misclassifies Technicians, Witt Suit Claims
---------------------------------------------------------
The case, MICHAEL E. WITT, individually and on behalf of those
similarly situated, Plaintiff v. GRAND DESIGN RV, LLC and DONALD
CLARK, Defendants, Case No. 3:22-cv-00526 (N.D. Ind., July 8, 2022)
arises from the Defendants' alleged intentional and willful
violations of the Fair Labor Standards Act.
The Plaintiff has worked for the Defendants as a Service Response
Team technician for more than the previous three years until June
23, 2022.
According to the complaint, the Plaintiff and other similarly
situated employees were misclassified by the Defendants as exempt
from the overtime provisions of the FLSA. Throughout their
employment with the Defendants, they were paid on a salary basis.
Despite regularly working more than 40 hours per workweek, the
Defendants did not pay them overtime premium at the rate of one and
one-half times their regular rate of pay for all hours worked in
excess of 40 per workweek, says the suit.
The Plaintiff brings this complaint as a collective action against
the Defendants for himself and all other similarly situated
technicians to recover all unpaid back wages, liquidated damages
equal in amount to the unpaid compensation, litigation costs,
reasonable attorney's fees, and other relief as may be necessary
and appropriate.
Grand Design RV, LLC operates a business manufacturing and selling
recreational vehicles and providing warranty service and repairs on
such vehicles throughout the U.S. Defendant Donald Clark is the
owner and operator of the Corporate Defendant. [BN]
The Plaintiff is represented by:
Robert F. Hunt, Esq.
Robert J. Hunt, Esq.
THE LAW OFFICES OF ROBERT J. HUNT, LLC
1905 South New Market St., Suite 168
Carmel, IN 46032
Tel: (317) 743-0614
Fax: (317) 743-0615
E-mail: rfh@indianawagelaw.com
rob@indianawagelaw.com
HOME DEPOT: Court Denies Utne's Bid to Intervene in Barragan Suit
-----------------------------------------------------------------
In the case, DONNIE SANCHEZ BARRAGAN, Lead ARACELI BARRAGAN, and
JEREMEY BURCHAM, individually and on behalf of others similarly
situated, Plaintiffs v. HOME DEPOT U.S.A., INC., a Delaware
Corporation, Defendant, Case No. 19-cv-01766-AJB-AGS (S.D. Cal.),
Judge Anthony J. Battaglia of the U.S. District Court for the
Southern District of California denies nonparty John Utne's Motion
in Right to Intervene, for Appointment of Interim Class Counsel,
and Transfer and/or Stay Action.
I. Background
Mr. Utne, the named Plaintiff in a separate class action lawsuit
against Defendant, seeks to intervene in the instant action,
appoint his counsel as interim lead counsel for the instant case
and consolidated cases, and stay, or alternatively, transfer each
of the actions to the Northern District of California. This motion
arose in the context of an upcoming mediation that was held on May
10, 2022, in four intertwined putative class actions: the instant
action, Barragan v. Home Depot U.S.A., Inc., No.
19-cv-01766-AJB-AGS; Davey v. The Home Depot U.S.A., Inc., No.
3:10-cv-02541-AJB-AGS; Sandoval v. Home Depot U.S.A. Inc., No.
3:21-cv-00461-AJB-AGS; and Flores v. Home Depot U.S.A., Inc., No.
3:21-cv-00462-AJB-AGS, (collectively, the "Consolidated Cases").
All cases concern alleged wage and hour violations by Defendant
Home Depot.
On Jan. 25, 2022, the counsel for each of the Consolidated Cases
participated in a conference call to discuss settlement and agreed
to mediate the consolidated claims, setting mediation for May 10,
2022. The cases did not settle.
On April 13, 2022, Utne filed the instant Motion in Right to
Intervene, for Appointment of Interim Class Counsel, and Transfer
and/or Stay Action. The Defendant and all the Plaintiffs oppose.
Utne filed a reply. At this stage, the parties have litigated a
motion to dismiss, two motions for summary judgment, and a motion
for class certification.
A. The Instant Case
In the instant case, the Plaintiffs and the classes received
compensation in the form of an hourly wage and cash incentive
bonuses, including Home Depot's minimum Success Sharing bonus. The
Plaintiffs assert that because the reporting time pay and meal
period premium pay were paid at the Plaintiffs' base hourly rate
and not their regular rate, which should have reflected an increase
from the minimum Success Sharing payments, they were underpaid
wages. The Third Amended Complaint ("TAC") alleges causes of action
for: (1) failure to pay overtime by Plaintiff Burcham and (2)
failure to pay all wages earned each pay period by all the
Plaintiffs.
The TAC defined the Overtime Class as "all non-exempt Home Depot
employees in California who received a minimum (e.g., $100)
'Success Sharing' bonus and worked overtime during the same Success
Sharing plan period, within three years of the filing of the
complaint in the action until June 20, 2018." Subsequently, the
Court granted Plaintiff Burcham's motion for class certification as
to this class.
Moreover, the Unpaid Regular Wages Class consists of two
subclasses. The Meal/Rest Premium Subclass is defined as "all
non-exempt Home Depot employees in California who (1) received a
flat sum, non-percentage based Success Sharing payment (e.g. $100)
for a given Success Sharing plan period and (2) received a meal or
rest period premium payment for a non-complaint meal and/or rest
period during the same Success Sharing plan period, within three
years of the filing of the complaint in this action through
present."
Next, the Reporting Time Pay Subclass is defined as "all non-exempt
Home Depot employees in California who (1) received a flat sum,
non-percentage based Success Sharing payment (e.g. $100) for a
given Success Sharing payment and (2) received reporting time pay
for a shift qualifying for reporting time pay under California law
during the same Success Sharing plan period, within three years of
the filing of the complaint in this action through present."
B. Davey
In Davey, the plaintiff similarly asserts she and class members
earned non-discretionary incentive pay in the form of "Success
Sharing Bonuses" and "Homer Award(s)" which were not factored into
the regular rate of pay for purposes of paying rest period
premiums. The Davey plaintiff also alleges a number of other
improper practices, including Defendant's failure to provide lawful
on-duty meal periods. The Davey First Amended Complaint ("FAC")
alleges causes of action for: (1) failure to provide meal periods,
(2) failure to provide rest periods, (3) failure to pay timely
wages, (4) failure to provide accurate itemized wage statements,
and (5) violation of Business & Professions Code Section 17200, et
seq.
The Davey FAC defines the class as "all current and former
California non-exempt employees of Defendants who received
non-discretionary remuneration, including but not limited to
'Success Sharing Bonus' and 'Homer Award(s)' and was paid any meal
and rest period premium payments in the same period that the
non-discretionary remuneration was earned, at any time between May
26, 2016 through the present." The Davey plaintiff also seeks to
represent five sub-classes, composed of a (1) Meal Period Subclass,
(2) Rest Period Subclass, (3) Wage Statement/Regular Rate Subclass,
(4) Waiting Time Penalty Subclass, and (5) Unfair Business Practice
Subclass.
C. Sandoval
The plaintiff in Sandoval alleges Defendant failed to pay all wages
owed to separated employees and to provide accurate itemized wage
statements, in violation of Labor Codes Sections 201-203 and 226.
The Sandoval FAC seeks certification of two classes.
The Paycard Class is defined as "all employees of Defendants in the
State of California, who during their employment received their
normal payroll wages through check or direct deposit, but upon
their separation of employment (voluntary or involuntary) at any
time from Jan. 31, 2017, through the present, received their
terminating wages in the form of a paycard."
Next, the Wage Statement Class is defined as "all current and
former California non-exempt employees of Defendants who were paid
overtime Premium wages at any time from Jan. 31, 2019, through the
present and whose respective wage statement did not identify the
applicable rate of pay for the OT Premium wage."
D. Flores
In Flores, the plaintiff argues she was not paid her final wages
upon separation of her employment, and that rather, the Defendant
paid her in the form of a payroll card that required the incurrence
of charges and expenses which reduced the wages she was entitled
to. The Flores plaintiff also alleges a number of other improper
practices, including the Defendant's failure to provide accurate
wage statements.
The Flores FAC alleges causes of action for: (1) failure to pay
overtime, (2) failure to pay minimum wage, (3) failure to pay
timely wages upon termination, (4) failure to provide and maintain
accurate itemized wage statements, (5) failure to provide meal
breaks, (6) failure to provide uninterrupted rest periods, (7)
unlawful discount and deductions, in violation of Labor Code
Sections 212 & 213, (8) unlawful discount and deductions, in
violation of Labor Code Sections 221 & 224, (9) unlawful secret
discount, (10) unlawful business practices, and (11) violation of
the Private Attorneys General Act of 2004.
The Flores FAC defines the class as "all persons who were employed
by Home Depot as nonexempt employees, in California at any time
from four years prior to the date of filing of the action through
the date of trial." The FAC also seeks to classify 27 subclasses.
II. Requests for Judicial Notice
Mr. Utne asks the Court to take judicial notice of fifteen exhibits
in support of his motion to intervene: (1) the Court's docket in
Utne v. Home Depot, No. 3:16-CV-01854-RS; (2) the Court's docket in
White v. Home Depot U.S.A. Inc., Case No. 3:22-cv-00276-AJB-AGS;
(3) the original complaint in the Utne action; (4) the class
certification order in the Utne action; (5) the first amended
complaint in the Utne action; (6) the third amended complaint in
the Utne action; (7) the Complaint filed in the instant action; (8)
the Notice of Related Cases filed by the Defendant in the instant
action; (9) the complaint filed in the White action; (10) the
October 6, 2021 Motion to Consolidate, filed by the Defendant, in
the instant action; (11) the Court's Nov. 3, 2021 Consolidation
Order in the instant action; (12) the motion to dismiss filed by
the defendant in the White action; (13) the Stipulation to Transfer
and Vacate Hearing Date filed in the White action; (14) the Joint
Motion to Continue Class Certification Motion Deadline filed in the
instant action; and (15) the court's March 28, 2022 Order filed in
the Utne action.
Additionally, in support of his Motion to Intervene, Utne
supplementally requests judicial notice of seven exhibits: (1) the
Administrative Motion to Consider Whether Cases Should Be Related,
filed by the plaintiff, in Henry v. Home Depot et al., Case No.
3:14-cv-04858; (2) the Defendant's Opposition to Plaintiff's
Administrative Motion to Consider Whether Cases Should Be Related
in the Henry action; (3) the Court's April 25, 2016 Order Denying
Motion to Relate Cases in the Henry action; (4) the Court's April
25, 2016 Order Denying Motion to Relate Cases in the Utne action;
(5) the Sept. 8, 2016 Joint Case Management Statement filed by the
parties in the Utne action; (6) the PAGA complaint filed in the
White action; and (7) the Feb. 2, 2022 Stipulation to Transfer and
Vacate Hearing Date, filed by the Defendant, in the White action.
Neither the Plaintiffs nor the Defendant oppose judicial notice of
these documents. However, Judge Battaglia need not take judicial
notice of the Court's own docket or documents filed on the docket
in the case. Because Exhibits G, H, J, K, and N are publicly filed
on the docket, he denies as moot Utne's request for judicial notice
as to these exhibits.
III. Discussion
Mr. Utne seeks to intervene in the matter as a named class
representative pursuant to Rule 24(a) or, alternatively, Rule
24(b). Utne asserts that intervention under either provision is
appropriate, as many class members of the Consolidated Cases
overlap with members of the certified class in the Utne Action, and
the Consolidated Cases pending before the Court pose an "imminent
and material threat" to the damages, penalties, and interest at
issue in Utne v. Home Depot U.S.A., Inc., Case No. 3:16-cv-01854.
A. Rule 24(a) Intervention as of Right
Federal Rule of Civil Procedure 24(a)(2) requires that a court
permit anyone to intervene who "claims an interest relating to the
property or transaction that is the subject of the action, and is
so situated that disposing of the action may as a practical matter
impair or impede the movant's ability to protect its interest,
unless existing parties adequately represent that interest." There
are four requirements for intervention as of right: (1) timeliness;
(2) an interest relating to the property or transaction that is the
subject of the action; (3) disposition of the action may impair or
impede the movant's ability to protect the interest; and (4) the
movant's interest is not adequately represented by existing
parties.
The party seeking to intervene bears the burden of showing that all
of the requirements for intervention are satisfied. Failure to
satisfy even one of these elements prohibits the applicant from
intervening as of right. In deciding a motion to intervene, courts
need not take as true allegations that are a sham or frivolous.
First, Judge Battaglia finds that timeliness is not at issue.
Although Utne filed his initial motion to intervene roughly two and
a half years after Plaintiffs filed their complaint, the Barragan
Plaintiffs' have not yet filed their motion for class
certification, discovery is ongoing with no set cut-off date, and a
scheduling order establishing a trial date has not been entered.
Utne's motion is timely.
Second, he finds that in light of the fact that the Third Amended
Complaint in Utne and the various complaints in the Consolidated
Cases bring similar causes of action, involve similar classes of
people, and seek similar relief, Utne has sufficient legal interest
in this action. Third, because Utne cannot show that his interests
will be impaired absent intervention, he may not intervene under
Rule 24(a). Lastly, Utne fails to assert how counsel for Plaintiffs
in the Consolidated Cases is inadequate.
Accordingly, Utne's motion to intervene under Rule 24(a) is
denied.
B. Rule 24(b) Permissive Intervention
Mr. Utne alternatively seeks permissive intervention pursuant to
Rule 24(b), contending the three prongs for such intervention are
clearly met. Plaintiffs and Defendant oppose intervention. In the
Defendant's opposition, it contends Utne shares no common questions
of law or fact with the Consolidated Cases, and that intervention
will only unduly delay the Consolidated Cases and unfairly
prejudice the existing parties.
To this latter point, Judge Battaglia agrees. He finds permissive
intervention is not warranted because Utne's interests are already
adequately represented through the class action settlement process.
In addition, he finds that allowing permissive intervention would
not significantly add to the full development of the underlying
factual issues in the case nor the equitable adjudication of the
legal questions involved but, instead, would significantly delay
the proceedings and prejudice the rights of the original parties.
Therefore, Judge Battaglia declines to allow permissive
intervention pursuant to Rule 24(b).
C. Motion to Transfer and/or Stay Case Pursuant to First-to-File
Rule
Courts must consider three factors in deciding whether to apply the
first-to-file rule: (1) the chronology of the two actions; (2) the
similarity of the parties; and (3) the similarity of the issues. To
begin, it is undisputed that the Utne action was filed first. Thus,
Judge Battaglia focuses his analysis on whether there is
substantial similarity of the parties and issues between the two
actions to warrant application of the rule.
Judge Battaglia finds that the parties are substantially similar
under the first-to-file rule. However, as noted by the Defendant,
only the two claims mentioned remain. Moreover, although many of
the Consolidated Cases involve claims alleging failure to pay
overtime wages and to provide accurate itemized wage statements,
the first-to-file rule does not apply here. The factual allegations
of the TAC in the instant case are premised on an alleged
miscalculation of the "regular rate of pay," due to the Defendant's
Success Sharing bonus program, while the complaint in Utne alleges
Defendant maintained a policy or practice of requiring the
plaintiffs to wait off-the-clock to be released from the
Defendant's stores following the end of their shift. Additionally,
Sandoval and Davey are premised on the Defendant's alleged
miscalculation of the "regular rate of pay," its alleged use of a
paycard to pay final wages in Sandoval and Flores, and its alleged
failure to provide meal and rest breaks in Flores and Davey.
Accordingly, Judge Battaglia denies Utne's motion to transfer
and/or stay the Consolidated Cases based on the first-to-file
rule.
IV. Conclusion
For the foregoing reasons, Judge Battaglia (i) denies Utne's Motion
to Intervene without prejudice, as Utne has not demonstrated he is
entitled to intervene of right or that permissive intervention is
warranted at this time; (ii) denies Utne's Motion to Transfer
and/or Stay the Consolidated Actions; and (iii) denies as moot
Utne's Motion for Appointment of Interim Class Counsel.
A full-text copy of the Court's July 6, 2022 Order is available at
https://tinyurl.com/ms7v7uja from Leagle.com.
HOME DEPOT: Court Stays White Suit Pending Conclusion of Utne Suit
------------------------------------------------------------------
In the case, NYIESHA WHITE, on behalf of herself and others
similarly situated, Plaintiff v. HOME DEPOT U.S.A., INC., a
Delaware Corporation, and DOES 1 to 100, inclusive, Defendant, Case
No. 22-cv-00276-AJB-AGS (S.D. Cal.), Judge Anthony J. Battaglia of
the U.S. District Court for the Southern District of California
grants in part and denies in part nonparty John Utne's Motion in
Right to Intervene, for Appointment of Interim Class Counsel, and
Transfer and/or Stay Action.
I. Background
Mr. Utne, the named Plaintiff in a separate class action lawsuit
against Defendant, seeks to intervene in the instant action,
appoint his counsel as interim lead counsel for the instant case
and consolidated cases, and stay, or alternatively, transfer each
of the actions to the Northern District of California. This motion
arose in the context of an upcoming mediation that was held on May
10, 2022, in four intertwined putative class actions: the instant
action, Barragan v. Home Depot U.S.A., Inc., No.
19-cv-01766-AJB-AGS; Davey v. The Home Depot U.S.A., Inc., No.
3:10-cv-02541-AJB-AGS; Sandoval v. Home Depot U.S.A. Inc., No.
3:21-cv-00461-AJB-AGS; and Flores v. Home Depot U.S.A., Inc., No.
3:21-cv-00462-AJB-AGS, (collectively, the "Consolidated Cases").
All cases concern alleged wage and hour violations by Defendant
Home Depot.
On Aug. 23, 2021, the Plaintiff filed the instant case in Los
Angeles Superior Court. After removal to the U.S. District Court
for the Central District of California, the case was transferred to
the Southern District of California and assigned to the Court.
The Complaint alleges causes of action for: (1) failure to pay
minimum wage, (2) failure to pay overtime, (3) failure to provide
meal breaks, (4) failure to provide uninterrupted rest periods, (5)
failure to pay timely wages, (6) failure to provide and maintain
accurate itemized wage statements, (7) failure to pay timely wages
upon termination, and (8) violation of Business & Professions Code
Section 17200, et seq. The Complaint seeks to certify seven
classes: the Minimum Wage Class, Overtime Class, Meal Period Class,
Rest Period Class, Pay Day Class, Wage Statement Class, and Waiting
Time Class.
On April 13, 2022, Utne filed the instant Motion in Right to
Intervene, for Appointment of Interim Class Counsel, and Transfer
and/or Stay Action. The Defendant and all the Plaintiffs oppose.
Utne filed a reply. At this stage, the parties have litigated a
motion to dismiss, two motions for summary judgment, and a motion
for class certification.
II. Requests for Judicial Notice
Mr. Utne asks the Court to take judicial notice of 15 exhibits in
support of his motion to intervene: (1) the Court's docket in Utne
v. Home Depot, No. 3:16-CV-01854-RS; (2) the Court's docket in the
instant action; (3) the original complaint in the Utne action; (4)
the class certification order in the Utne action; (5) the first
amended complaint in the Utne action; (6) the third amended
complaint in the Utne action; (7) the original complaint filed in
Barragan; (8) the Notice of Related Cases filed by Defendant in
Barragan; (9) the complaint filed in the instant action; (10) the
Oct. 6, 2021 Motion to Consolidate, filed by the Defendant, in
Barragan; (11) the Court's Nov. 3, 2021 Consolidation Order in
Barragan; (12) the motion to dismiss filed by the Defendant in the
instant action; (13) the Stipulation to Transfer and Vacate Hearing
Date filed in the instant action; (14) the Joint Motion to Continue
Class Certification Motion Deadline filed in Barragan; and (15) the
Court's March 28, 2022 Order filed in the Utne action.
Additionally, in support of his Motion to Intervene, Utne
supplementally requests judicial notice of seven exhibits: (1) the
Administrative Motion to Consider Whether Cases Should Be Related,
filed by the plaintiff, in Henry v. Home Depot et al., Case No.
3:14-cv-04858; (2) the Defendant's Opposition to Plaintiff's
Administrative Motion to Consider Whether Cases Should Be Related
in the Henry action; (3) the Court's April 25, 2016 Order Denying
Motion to Relate Cases in the Henry action; (4) the Court's April
25, 2016 Order Denying Motion to Relate Cases in the Utne action;
(5) the Sept. 8, 2016 Joint Case Management Statement filed by the
parties in the Utne action; (6) the PAGA complaint filed in the
instant action; and (7) the Feb. 2, 2022 Stipulation to Transfer
and Vacate Hearing Date, filed by the Defendant, in the instant
action.
Neither the Plaintiffs nor the Defendant oppose judicial notice of
these documents. However, Judge Battaglia need not take judicial
notice of the Court's own docket or documents filed on the docket
in the case. Because Exhibits B, I, L, M, U, and V are publicly
filed on the docket, he denies as moot Utne's request for judicial
notice as to these exhibits.
As to the remaining exhibits, a "court may take judicial notice of
court records in another case." However, "while the authenticity
and existence of a particular order, motion, pleading or judicial
proceeding, which is a matter of public record, is judicially
noticeable, veracity and validity of its contents are not."
Accordingly, Judge Battaglia grants Utne's request for judicial
notice for the stated purpose that these documents exist.
III. Discussion
Mr. Utne seeks to intervene in the matter as a named class
representative pursuant to Rule 24(a) or, alternatively, Rule
24(b). He asserts that intervention under either provision is
appropriate, as many class members in the instant case overlap with
members of the certified class in the Utne Action, and any
resolution in the instant action poses an "imminent and material
threat" to the damages, penalties, and interest at issue in Utne.
A. Rule 24(a) Intervention as of Right
Federal Rule of Civil Procedure 24(a)(2) requires that a court
permit anyone to intervene who "claims an interest relating to the
property or transaction that is the subject of the action, and is
so situated that disposing of the action may as a practical matter
impair or impede the movant's ability to protect its interest,
unless existing parties adequately represent that interest." There
are four requirements for intervention as of right: (1) timeliness;
(2) an interest relating to the property or transaction that is the
subject of the action; (3) disposition of the action may impair or
impede the movant's ability to protect the interest; and (4) the
movant's interest is not adequately represented by existing
parties.
The party seeking to intervene bears the burden of showing that all
of the requirements for intervention are satisfied. Failure to
satisfy even one of these elements prohibits the applicant from
intervening as of right. In deciding a motion to intervene, courts
need not take as true allegations that are a sham or frivolous.
First, Judge Battaglia finds that timeliness is not at issue.
Although Utne filed his initial motion to intervene roughly two and
a half years after Plaintiffs filed their complaint, the Barragan
Plaintiffs' have not yet filed their motion for class
certification, discovery is ongoing with no set cut-off date, and a
scheduling order establishing a trial date has not been entered.
Utne's motion is timely.
Second, he finds that in light of the fact that the Third Amended
Complaint in Utne and the Complaint bring similar causes of action,
involve similar classes of people, and seek similar relief, Utne
has sufficient legal interest in this action. Third, because Utne
cannot show that his interests will be impaired absent
intervention, he may not intervene under Rule 24(a). Lastly, Utne
fails to assert how the counsel for the Plaintiff is inadequate.
Accordingly, Utne's motion to intervene under Rule 24(a) is
denied.
B. Rule 24(b) Permissive Intervention
Mr. Utne alternatively seeks permissive intervention pursuant to
Rule 24(b), contending the three prongs for such intervention are
clearly met. Plaintiffs and Defendant oppose intervention. In the
Defendant's opposition, it contends Utne shares no common questions
of law or fact with the Consolidated Cases, and that intervention
will only unduly delay the Consolidated Cases and unfairly
prejudice the existing parties.
To this latter point, Judge Battaglia agrees. He finds permissive
intervention is not warranted because Utne's interests are already
adequately represented through the class action settlement process.
In addition, he finds that allowing permissive intervention would
not significantly add to the full development of the underlying
factual issues in the case nor the equitable adjudication of the
legal questions involved but, instead, would significantly delay
the proceedings and prejudice the rights of the original parties.
Therefore, Judge Battaglia declines to allow permissive
intervention pursuant to Rule 24(b).
C. Motion to Transfer and/or Stay Case Pursuant to First-to-File
Rule
Courts must consider three factors in deciding whether to apply the
first-to-file rule: (1) the chronology of the two actions; (2) the
similarity of the parties; and (3) the similarity of the issues. To
begin, it is undisputed that the Utne action was filed first. Thus,
Judge Battaglia focuses his analysis on whether there is
substantial similarity of the parties and issues between the two
actions to warrant application of the rule.
Judge Battaglia finds that the parties are substantially similar
under the first-to-file rule. He also finds that Utne and the
instant action share substantial overlap because they share
strikingly similar factual allegations regarding the Defendant's
alleged pattern and practice of store lockdowns, or requiring the
Plaintiffs to wait off-the-clock to be released from the
Defendant's stores following the end of their shift. Additionally,
Utne involves an employer-employee relationship where the employer
allegedly failed to pay wages under several California Labor Code
Provisions. The instant case involves a similar employer-employee
relationship and shares underlying violations.
Given that all three factors weigh in favor of a stay, the
First-to-File rule applies. In addition to the factors
contemplated, Judge Battaglia is also mindful of limited judicial
resources, as well as the potential for inconsistent adjudication,
which also weigh in favor of a stay. "Efficiency is lost, and
judicial resources are wasted" where multiple actions, comprised of
substantially similar claims and parties, continue simultaneously.
IV. Conclusion
For the foregoing reasons, Judge Battaglia (i) denies Utne's Motion
to Intervene without prejudice, as Utne has not demonstrated he is
entitled to intervene of right or that permissive intervention is
warranted at this time; (ii) denies as moot Utne's Motion for
Appointment of Interim Class Counsel; and (iii) grants Utne's
Motion to Stay.
The matter is stayed, in its entirety, pending the conclusion of
Utne v. Home Depot, No. 3:16-CV-01854-RS. All pending hearings are
ordered off calendar until further order by the Court. The parties
must notify the Court within 14 days of the conclusion of said
proceedings. They must file a joint status report on or before Oct.
7, 2022, and every ninety days thereafter.
A full-text copy of the Court's July 6, 2022 Order is available at
https://tinyurl.com/s5kdfvxu from Leagle.com.
ILLINOIS: Davis Appeals Dismissal of Case v. DHS to 7th Circuit
---------------------------------------------------------------
DYAMOND DAVIS and ANTIONETTE BURNS are taking an appeal from a
court ruling dismissing their lawsuit entitled Dyamond Davis, et
al., Plaintiffs, on behalf of themselves and all others similarly
situated, v. Illinois Department of Human Services, Defendant, Case
No. 2:18-cv-02246-CSB-EIL, in the United States District Court for
the Central District of Illinois.
As reported in the Class Action Reporter, the lawsuit, filed by
Dyamond Davis on September 26, 2018, alleges that the Defendant
denied her request for leave under the Family and Medical Leave Act
of 1993 (FMLA). She said when she requested FMLA leave for
qualifying absences, DHS denied her the FMLA leave, and instead
used her other available paid leave time or designated the absences
as unexcused.
On July 29, 2021, the Plaintiffs filed a motion for leave to file a
fourth amended complaint. On July 30, 2021, the Plaintiffs filed a
motion to certify a class under the FMLA, which consists of current
and former employees who worked for the Illinois Department of
Human Services (DHS) at the Shapiro Developmental Center in
Kankakee, Illinois from January 1, 2016 through December 31, 2019,
were approved for FMLA, and were interfered with in the exercise of
or the attempt to exercise FMLA protections for FMLA qualifying
absences because of DHS's written policy requiring all employees to
exhaust paid leave before using FMLA leave.
On December 20, 2021, the Defendant filed a motion for summary
judgment.
On March 30, 2022, Magistrate Judge Eric I. Long denied the
Plaintiffs' motion to certify class as moot. Judge Long granted the
Plaintiff leave to renew her motion, if necessary, after the
Court's ruling on the pending Motion for Summary Judgment. If the
Court grants the Motion for Summary Judgment, the case will be
terminated.
On April 7, 2022, Dyamond Davis filed a motion for the Court to
reconsider its order, and argued that even if the court grants
summary judgment with respect to herself, there still remains
another Class Plaintiff, Antoinette Burns. The Defendant's Motion
for Summary Judgment, however, seeks judgment with respect to both
Plaintiff Davis and Plaintiff Burns. Thus, as the Court observed in
its prior Order, if the Court grants the Motion for Summary
Judgment, the case will be terminated.
On April 27, 2022, Judge Colin Stirling Bruce denied Plaintiff
Davis' motion for reconsideration.
On May 31, 2022, Judge Bruce dismissed Plaintiff Antionette Burns'
claim in the fourth amended complaint for lack of standing and
granted the Defendant's motion for summary judgment with respect to
the claim raised by Plaintiff Dyamond Davis in the fourth amended
complaint. "This matter is terminated," ruled the Court.
The appellate case is captioned as Dyamond Davis, et al. v.
Illinois Department of Human Services, Case No. 22-2118, in the
United States Court of Appeals for the Seventh Circuit, filed on
June 23, 2022.
The briefing schedule in the Appellate Case states that:
-- Docketing statement was due on June 30, 2022 for Appellants
Antionette Burns and Dyamond Davis;
-- Transcript information sheet was due July 7, 2022 for
Antionette Burns and Dyamond Davis; and
-- Appellants' brief is due on August 2, 2022 for Antionette
Burns and Dyamond Davis. [BN]
Plaintiffs-Appellants DYAMOND DAVIS and ANTIONETTE BURNS, on behalf
of themselves and all others similarly situated, are represented
by:
Tammy Jo Lenzy, Esq.
LEGAL COUNSEL PC
1018 W. Madison Street
Chicago, IL 60607
Telephone: (312) 624-9973
E-mail: tjlenzy@legalcounselpc.net
Defendant-Appellee ILLINOIS DEPARTMENT OF HUMAN SERVICES is
represented by:
Nadine J. Wichern, Esq.
OFFICE OF THE ATTORNEY GENERAL
100 W. Randolph Street
State of Illinois Center
Chicago, IL 60601-0000
Telephone: (312) 814-1497
E-mail: dgrady@atg.state.il.us
JAAFAR LLC: Boynuince et al. Sue Over Servers' Unpaid Overtime
--------------------------------------------------------------
TUGANA BOYNUINCE and MADISON BITTING, on behalf of themselves and
all others similarly situated, Plaintiffs v. JAAFAR LLC d/b/a LA V
NIGHT CLUB, a Florida Corporation, and FADI JAAFAR, individually,
Defendants, Case No. 1:22-cv-22077-XXXX (S.D. Fla., July 8, 2022)
is a collective action complaint brought against the Defendants to
recover compensation and other relief as a result of their alleged
unlawful employment practices in violation of the Fair Labor
Standards Act.
The Plaintiffs have worked for the Defendants as servers at the
Defendants' nightclub. Plaintiff Tugana began her employment with
the Defendant on or about December 2020, while Plaintiff Bitting
was hired on or about February 2021.
The Plaintiffs complain that although they worked more than 40
hours per week, the Defendants denied them of their lawfully earned
overtime compensation at the rate of one and one-half times their
regular rate of pay for all hours worked in excess of 40 per
workweek. They added that the Defendants allegedly failed to
properly track and maintain all records concerning the number of
hours actually worked by them.
Jaafar LLC operates a night club that is owned by Fadi Jaafar.
[BN]
The Plaintiffs are represented by:
Chad E. Levy, Esq.
David M. Cozad, Esq.
LAW OFFICES OF LEVY & LEVY, P.A.
1000 Sawgrass Corporate Parkway, Suite 588
Sunrise, FL 33323
Tel: (954) 763-5722
Fax: (954) 763-5723
E-mail: chad@levylevylaw.com
assistant@levylevylaw.com
david@levylevylaw.com
JUUL LABS: Auburn Sues Over Harm Caused by Youth E-Cigarette Market
-------------------------------------------------------------------
AUBURN SCHOOL DISTRICT, on behalf of itself and all others
similarly situated, Plaintiff v. JUUL LABS, INC., et al.,
Defendants, Case No. 3:22-cv-03952 (N.D. Cal., July 6, 2022) is a
class action against the Defendants for negligence, gross
negligence, and violations of Public Nuisance Law and the Racketeer
Influenced and Corrupt Organizations Act.
According to the complaint, the Defendants used three tactics to
maintain market dominance in the cigarette industry: (1) product
design to maximize addiction, (2) mass deception, and (3) targeting
of youth. Defendants JUUL Labs and Adam Bowen designed an
e-cigarette device allegedly intended to create and sustain
addiction, but without the stigma associated with cigarettes and
promoted them to vulnerable young population. JUUL Labs and other
Defendants developed and implemented a marketing scheme to mislead
users into believing that JUUL products contained less nicotine
than they actually do and were healthy and safe. The Defendants
enticed newcomers to nicotine with kid-friendly flavors without
ensuring the flavoring additives were safe for inhalation. The
Defendants targeted the youth market by placing vaporized campaigns
on youth-oriented websites and media and using influencers and
affiliates to amplify their message to a teenage audience. The
Defendants have successfully caused more young people to start
using e-cigarettes, creating a youth e-cigarette epidemic and
public health crisis, says the suit.
The Auburn School District case has been consolidated in MDL No.
2913, IN RE: JUUL LABS, INC. MARKETING, SALES PRACTICES, AND
PRODUCTS LIABILITY LITIGATION. The case is assigned to the Hon.
Judge William H. Orrick.
Auburn School District is a unified school district with its
offices located at 915 4th Street Northeast in Auburn, Washington.
JUUL Labs, Inc., formerly known as Pax Labs, Inc., is an American
electronic cigarette company, with its principal place of business
in San Francisco, California.
Altria Group, Inc. is a producer of tobacco products, with its
principal place of business in Richmond, Virginia.
Philip Morris USA, Inc. is a wholly-owned subsidiary of Altria
Group, Inc., with its principal place of business in Richmond,
Virginia.
Altria Client Services LLC is a tobacco company, with its principal
place of business in Richmond, Virginia.
Altria Group Distribution Company is a tobacco company, with its
principal place of business in Richmond, Virginia. [BN]
The Plaintiff is represented by:
James Frantz, Esq.
William B. Shinoff, Esq.
FRANTZ LAW GROUP, APLC
402 W. Broadway, Ste. 860
San Diego, CA 92101
Telephone: (619) 233-5945
Facsimile: (619) 525-7672
E-mail: jpf@frantzlawgroup.com
wshinoff@frantzlawgroup.com
JUUL LABS: Randolph Central Sues Over E-Cigarette Crisis in N.Y.
----------------------------------------------------------------
RANDOLPH CENTRAL SCHOOL DISTRICT, on behalf of itself and all
others similarly situated, Plaintiff v. JUUL LABS, INC., et al.,
Defendants, Case No. 3:22-cv-03950 (N.D. Cal., July 6, 2022) is a
class action against the Defendants for negligence, gross
negligence, and violations of the Public Nuisance Law and the
Racketeer Influenced and Corrupt Organizations Act.
According to the complaint, the Defendants used three tactics to
maintain market dominance in the cigarette industry: (1) product
design to maximize addiction, (2) mass deception, and (3) targeting
of youth. Defendants JUUL Labs and Adam Bowen designed an
e-cigarette device allegedly intended to create and sustain
addiction, but without the stigma associated with cigarettes and
promoted them to vulnerable young population. JUUL Labs and other
Defendants developed and implemented a marketing scheme to mislead
users into believing that JUUL products contained less nicotine
than they actually do and were healthy and safe. The Defendants
enticed newcomers to nicotine with kid-friendly flavors without
ensuring the flavoring additives were safe for inhalation. The
Defendants targeted the youth market by placing vaporized campaigns
on youth-oriented websites and media and using influencers and
affiliates to amplify their message to a teenage audience. The
Defendants have successfully caused more young people to start
using e-cigarettes, creating a youth e-cigarette epidemic and
public health crisis, says the suit.
The Randolph Central School District case has been consolidated in
MDL No. 2913, IN RE: JUUL LABS, INC. MARKETING, SALES PRACTICES,
AND PRODUCTS LIABILITY LITIGATION. The case is assigned to the Hon.
Judge William H. Orrick.
Randolph Central School District is a unified school district with
its offices located at 18 Main Street in Randolph, New York.
JUUL Labs, Inc., formerly known as Pax Labs, Inc., is an American
electronic cigarette company, with its principal place of business
in San Francisco, California.
Altria Group, Inc. is a producer of tobacco products, with its
principal place of business in Richmond, Virginia.
Philip Morris USA, Inc. is a wholly-owned subsidiary of Altria
Group, Inc., with its principal place of business in Richmond,
Virginia.
Altria Client Services LLC is a tobacco company, with its principal
place of business in Richmond, Virginia.
Altria Group Distribution Company is a tobacco company, with its
principal place of business in Richmond, Virginia. [BN]
The Plaintiff is represented by:
James Frantz, Esq.
William B. Shinoff, Esq.
FRANTZ LAW GROUP, APLC
402 W. Broadway, Ste. 860
San Diego, CA 92101
Telephone: (619) 233-5945
Facsimile: (619) 525-7672
E-mail: jpf@frantzlawgroup.com
wshinoff@frantzlawgroup.com
JUUL LABS: Triggers Youth E-Cigarette Crisis, Granada Hills Claims
------------------------------------------------------------------
GRANADA HILLS CHARTER, on behalf of itself and all others similarly
situated, Plaintiff v. JUUL LABS, INC., et al., Defendants, Case
No. 3:22-cv-03951 (N.D. Cal., July 6, 2022) is a class action
against the Defendants for negligence, gross negligence, and
violations of the Public Nuisance Law and the Racketeer Influenced
and Corrupt Organizations Act.
According to the complaint, the Defendants used three tactics to
maintain market dominance in the cigarette industry: (1) product
design to maximize addiction, (2) mass deception, and (3) targeting
of youth. Defendants JUUL Labs and Adam Bowen designed an
e-cigarette device allegedly intended to create and sustain
addiction, but without the stigma associated with cigarettes and
promoted them to vulnerable young population. JUUL Labs and other
Defendants developed and implemented a marketing scheme to mislead
users into believing that JUUL products contained less nicotine
than they actually do and were healthy and safe. The Defendants
enticed newcomers to nicotine with kid-friendly flavors without
ensuring the flavoring additives were safe for inhalation. The
Defendants targeted the youth market by placing vaporized campaigns
on youth-oriented websites and media and using influencers and
affiliates to amplify their message to a teenage audience. The
Defendants have successfully caused more young people to start
using e-cigarettes, creating a youth e-cigarette epidemic and
public health crisis, says the suit.
The Granada Hills Charter case has been consolidated in MDL No.
2913, IN RE: JUUL LABS, INC. MARKETING, SALES PRACTICES, AND
PRODUCTS LIABILITY LITIGATION. The case is assigned to the Hon.
Judge William H. Orrick.
Granada Hills Charter is a charter school with its offices located
at 17081 Devonshire Street in Northridge, California.
JUUL Labs, Inc., formerly known as Pax Labs, Inc., is an American
electronic cigarette company, with its principal place of business
in San Francisco, California.
Altria Group, Inc. is a producer of tobacco products, with its
principal place of business in Richmond, Virginia.
Philip Morris USA, Inc. is a wholly-owned subsidiary of Altria
Group, Inc., with its principal place of business in Richmond,
Virginia.
Altria Client Services LLC is a tobacco company, with its principal
place of business in Richmond, Virginia.
Altria Group Distribution Company is a tobacco company, with its
principal place of business in Richmond, Virginia. [BN]
The Plaintiff is represented by:
James Frantz, Esq.
William B. Shinoff, Esq.
FRANTZ LAW GROUP, APLC
402 W. Broadway, Ste. 860
San Diego, CA 92101
Telephone: (619) 233-5945
Facsimile: (619) 525-7672
E-mail: jpf@frantzlawgroup.com
wshinoff@frantzlawgroup.com
KANAWAY SEAFOODS: Underpays Employees, Flaherty et al. Claim
------------------------------------------------------------
CODY FLAHERTY, JERRY ROSS, and KEGAN FLAHERTY, individually and on
behalf of all others similarly situated, Plaintiffs v. KANAWAY
SEAFOODS, INC. d/b/a ALASKA GENERAL SEAFOODS, Defendant, Case No.
3:22-cv-00155-HRH (D. Alaska, July 8, 2022) bring this class and
collective action complaint against the Defendant to recover unpaid
compensation under Fair Labor Standards Act, the Portal-to-Portal
Act, and the Alaska Wage and Hour Act.
The Plaintiffs, who were employed by the Defendant as hourly-paid
and non-exempt employees, claim that prior to "clocking-in" at the
Defendant's worksite and at various times throughout their
employment, they were required to take a COVID-19 screening tests
pursuant to its COVID-19 testing policy. However, the Defendant did
not compensate them for all the time they spent traveling to a
COVID-19 test site, testing for COVID-19, and awaiting test results
at the testing site, the Plaintiffs say.
The Plaintiffs also assert that they were not compensated for the
off-the-clock hours when they were confined to their workstation
and to their dorm room during the Defendant's "closed campus"
policy that was enacted at or around April 2020. The "closed
campus" policy was allegedly for the Defendant's benefit to, among
other things, ensure productivity and avoid spoliation of fish and
fish products.
In addition, despite frequently working more than 40 hours per
week, the Plaintiffs were not paid overtime premium compensation at
the rate of one and one-half times their regular rate of pay for
all hours worked in excess of 40 per workweek. Moreover, the
Defendant failed to maintain and preserve payroll records which
accurately show the total hours worked by the Plaintiffs and other
similarly situated no-exempt and hourly-paid employees, the suit
asserts.
Kanaway Seafoods, Inc. d/b/a Alaska General Seafoods operates as a
seafood processing company. [BN]
The Plaintiffs are represented by:
Daniel I. Pace, Esq.
PACE LAW OFFICES
101 E 9th Ave., Ste. 7A
Anchorage, AK 99501
Tel: (907) 222-4003
Fax: (907) 222-4006
E-mail: dan@pacelawoffices.com
- and –
Ricardo J. Prieto, Esq.
Melinda Arbuckle, Esq.
SHELLIST LAZARS SLOBIN LLP
11 Greenway Plaza, Suite 1515
Houston, TX 77046
Tel: (713) 621-2277
Fax: (713) 621-0993
E-mail: rprieto@eeoc.net
marbuckle@eeoc.net
KOJI'S JAPAN: Cal. App. Affirms Final Order & Judgment in Turman
----------------------------------------------------------------
In the case, HEATHER TURMAN, et al., Plaintiffs and Appellants v.
ARTHUR PARENT, JR., Defendant and Respondent, Case No. G060330
(Cal. App.), the Court of Appeals of California for the Fourth
District, Division Three, affirms the trial court's final order and
judgment granting the Plaintiff's unopposed motions for final
approval of class action settlement by incorporating the terms set
forth in its prior minute order.
I. Introduction
Former restaurant employees initially filed the case in 2010 as a
wage and hour class action against Defendants Koji's and Arthur
Parent, Jr., who had been Koji's president, sole shareholder, and
director. After over a decade of litigation which produced several
appellate court opinions, the trial court preliminarily approved
the parties' class action settlement agreement. As relevant to the
issues presented in the appeal, the preliminarily approved
agreement provided for the Defendants to make a non-reversionary
settlement payment in the total gross amount of $2.2 million, which
included an attorney fee award in the amount of $1,040,000 and
enhancement awards totaling $100,000 to be distributed among the
named Plaintiffs and declarants. That agreement also provided that
unclaimed class payments would be allocated to a designated cy pres
recipient.
The trial court's final order and judgment, however, provided for a
reduced attorney fee award in the total amount of $880,000 and
reduced enhancement awards totaling $55,500. The trial court's
final order and judgment did not provide for application of the
designated cy pres recipient and instead provided that unclaimed
class payments would be tendered to the State Controller's Office
under the Unclaimed Property law. The Plaintiffs argue the trial
court abused its discretion by reducing the attorney fee and the
enhancement awards and also by rejecting the proposed cy pres
recipient.
II. Background
In 2000, Koji's was incorporated by Parent. At all relevant times,
Parent was Koji's president, sole shareholder, and director. Koji's
owned one sushi and shabu-shabu restaurant in Hollywood, and
another such restaurant in Orange County. The individually named
Plaintiffs had been employed by Koji's and worked at one or both of
its restaurants at some point during November 2006 through February
2012. Koji's was not a profitable business and, by early 2012, had
closed both restaurants.
In November 2010, Amanda Quiles, Heather Turman, and Kimberly Dang,
as individuals and "on behalf of all others similarly situated, and
on behalf of the general public," filed a proposed class action
against Koji's and Parent, asserting several state and federal wage
and hour claims and alleging violation of California's unfair
competition law. Quiles, Turman, and Dang amended their complaint
several times to add, among other things, Quiles's individual
wrongful employment termination claim in violation of the Fair
Labor Standards Act of 1938 (FLSA) (29 U.S.C. Section 201 et seq.).
In early 2015, the trial court presided over a bench trial to
determine joint employer and alter ego theories of liability. At
the conclusion of the bench trial, the trial court found Parent
qualified as a joint employer under the FLSA.
In October 2015, Quiles, Turman, and Dang were joined by
co-plaintiffs, Shannon Payne, Lonnie Finley, Joshua Allen, JW
Perkins, and Kellianne Ryan in their individual capacities, in
filing the operative complaint against Koji's and Parent, styled
the "fifth amended individual, class and collective action
complaint for damages and restitution."
The fifth amended complaint contained claims for (1) failure to pay
overtime wages in violation of Labor Code sections 510, 1194, and
1198, and Industrial Welfare Commission (IWC) wage order No. 5-2001
(Cal. Code Regs., tit. 8, Section 11050) (IWC wage order No.
5-2001) (first cause of action); (2) failure to pay earned wages
upon discharge and waiting time penalties in violation of Labor
Code sections 201 through 203 (second cause of action); (3) failure
to provide timely, accurate, and itemized wage statements in
violation of Labor Code section 226 (third cause of action); (4)
failure to provide rest breaks and meal periods in violation of IWC
wage order No. 5-2001, and Labor Code sections 226.7 and 512
(fourth cause of action); (5) failure to compensate for all hours
worked in violation of Labor Code sections 221 and 223 and IWC wage
order No. 5-2001 (fifth cause of action); (6) misappropriation of
tips by the employer and the employer's agents in violation of
Business and Professions Code section 17200 et seq. (sixth cause of
action); (7) failure to pay the minimum wage in violation of Labor
Code sections 1182.11, 1182.12, 1182.13, 1194, and 1197, and "the
California Minimum Wage Order, MW-2001" (Cal. Code Regs., tit. 8,
Section 11000) (seventh cause of action); (8) violation of the FLSA
(29 U.S.C. Sections 206, 207, 216) (eighth cause of action); (9)
unlawful and/or unfair business practices in violation of Business
and Professions Code section 17200 et seq.) (ninth cause of
action); (10) retaliation for protected activity in violation of
Labor Code section 98.6 on behalf of Quiles only (tenth cause of
action); (11) retaliation for protected activity in violation of
the FLSA (29 U.S.C. Section 215(a)(3)) on behalf of Quiles only
(eleventh cause of action); and (12) recovery of civil penalties
pursuant to the Labor Code Private Attorneys General Act of 2004
(PAGA) (Lab. Code, Section 2698 et seq.) (twelfth cause of
action).
In 2020, the Plaintiffs filed a motion for preliminary approval of
the settlement of the class action, the FLSA action, and the PAGA
action (collectively the class action settlement) in which, subject
to final court approval, Koji's and Parent agreed "to make a total,
all-in, non-reversionary settlement payment in the amount of $2.2
million." The class action settlement and related stipulation
provided that, at the final approval hearing, the class counsel
would apply to the court to approve the apportionment of the gross
settlement amount to include, inter alia, (1) an attorney fee award
of no more than $1.040 million to the Plaintiffs' counsel, an
amount described as "approximately 47.27% of the Gross Settlement
Amount, and far less than the Class Counsel's claimed lodestar of
over $2.5 million"; (2) a costs award of no more than $160,000; (3)
"an award reimbursing the Settlement Administrator for up to
$20,000 for fee and costs"; (4) "enhancement awards totaling up to
$100,000 to be distributed among the Named Plaintiffs and
declarants and/or deponents for their services and for assuming the
risks associated with the Action"; (5) the payment of $50,000 for
claims asserted under PAGA of which $37,500 would be paid to the
Labor and Workforce Development Agency (LWDA) and the remaining
$12,500 allocated to aggrieved employees, applying the specified
formula and conditions; (6) distribution of the remaining amount of
the gross settlement amount, following the deductions specified
ante, to class members on a pro rata basis based on the respective
number of shifts worked during the class period; and (7) any
uncashed checks to class members after the specified time period
and notice procedures were exhausted would be voided and the amount
equally divided and allocated to designated cy pres recipients Wage
Justice Center and Legal Aid at Work.
After the class counsel provided further information as requested
by the trial court, in August 2020, the trial court issued a minute
order preliminarily approving the class action settlement amended
to, inter alia, remove Legal Aid at Work as a cy pres designated
recipient.
In December 2020, the clerk notified the parties that the case had
been reassigned for all purposes to a new trial court judge. The
Plaintiffs thereafter filed an unopposed motion for final approval
of the class action settlement. They also filed an unopposed motion
for attorney fees, reimbursement of costs and enhancement payments,
formally seeking the following awards: (1) $1,040,000 in attorney
fees; (2) $160,000 in costs; (3) $16,000 "to compensate Rust
Consulting, Inc. and $1,200 to reimburse Rutan for settlement
administration-related costs"; (4) a $25,000 enhancement payment
each for named Plaintiffs Turman and Allen; (5) a $15,000
enhancement payment for named Plaintiff Dang; (6) a $7,500
enhancement payment for named Plaintiff Payne; (6) a $6,000
enhancement payment for named Plaintiff Finley; (7) a $5,000
enhancement payment each for named Plaintiffs Perkins and Ryan; and
(8) a $1,000 enhancement each for declarants Daryl Swords, Zak
Hawkins, Benjamin Morris, Nicole Pacuk, Toni Davidson, and Jessie
Musmecci.
At the hearing on the motions, the trial court took the matter
under submission. In May 2021, the trial court issued a minute
order granting the motion for Final Approval with the distributions
as noted. It approved the following distributions: (i) attorney's
fees in the amount of $880,000; (ii) litigation costs in the
requested amount of $160,000; (iii) PAGA penalties in the amount of
$37,500 to the LWDA, representing the LWDA's 75% share of the
$50,000 allocated to the PAGA claims; (iv) administration costs in
the amount of $16,000; and (v) the Court has discretion to set any
incentives. Accordingly, the Court awarded the enhancement payments
in the amount of $55,500 as follows: $15,000 for Heather Turman,
$15,000 for Joshua Allen, $7,500 for Kimberly Dang, $5,000 for
Shannon Payne, $4,000 for Lonnie Finley, $3,000 for JW Perkins,
$3,000 for Kellianne Ryan, $500 for Daryl Swords, $500 for Zak
Hawkins, $500 for Benjamin Morris, $500 for Nicole Pacuk, $500 for
Toni Davidson, and $500 for Jessie Musmecci.
A final accounting was set for Nov. 18, 2021 at 2:00 p.m. The trial
court thereafter issued an order granting the Plaintiff's unopposed
motions for final approval of class action settlement by
incorporating the terms set forth in its prior minute order;
judgment was entered accordingly.
The Plaintiffs appealed.
III. Discussion
The Plaintiffs challenge the trial court's final order approving an
attorney fee award in the amount of $880,000 which is $160,000 less
than the attorney fee award of $1,040,000 that had been proposed in
the Plaintiffs' motions seeking preliminary and final approval of
the class action settlement.
The Court of Appeals holds that the Plaintiffs' challenge is
without merit. First, it finds no basis for concluding the trial
court abused its discretion in awarding class counsel attorney
fees. The Plaintiffs do not offer any authority that the trial
court's final attorney fee award, constituting 40% of a
multimillion dollar class action gross settlement amount, is
inappropriate, unreasonable, or arbitrary given the history and
circumstances of this case. They do not show that the trial court
applied an inappropriate methodology, considered improper factors,
failed to consider relevant factors, whether under Code of Civil
Procedure section 1021.54 or otherwise, or engaged in calculation
errors in determining the amount of the attorney fees that were
ultimately awarded.
Second, the Court of Appeals holds that the Plaintiffs fail to
explain why the amount of enhancement awards they proposed should
be afforded deference as there is no '"presumption of fairness"' in
review of an incentive fee award. Given the trial court's
statements that it had become familiar with the history of the
lengthy litigation and the evidence before the court, the trial
court's enhancement awards did not constitute an abuse of
discretion. Moreover, the trial court did not explain its reasons
for not finally approving the cy pres provision of the proposed
class action settlement, but it was not required to do so. Absent a
strong demonstration the trial court clearly abused its discretion
in ordering final approval of the class action settlement, sans the
cy pres provision, the Court of Appeals must affirm.
IV. Disposition
The Court of Appeals reviews the trial court's final order and
judgment for an abuse of discretion. It concludes that the trial
court was not required to explain the reasons why it reduced the
attorney fee award or enhancement awards, or why it declined to
accept the parties' designated cy pres recipient. The record does
not show the trial court misapprehended the governing legal
principles or otherwise abused its discretion in approving the
class action settlement and entering judgment.
The Court of Appeals, therefore, affirms the judgment. As the
Respondent did not appear, no costs are awarded.
A full-text copy of the Court's July 6, 2022 Order is available at
https://tinyurl.com/2mrpzhs8 from Leagle.com.
Bryan Schwartz Law, Bryan J. Schwartz and Cassidy Clark; Altshuler
Berzon and Michael Rubin -- mrubin@altber.com -- for the Plaintiffs
and Appellants.
No appearance for Defendant and Respondent.
LL FLOORING: Faces Melendez Suit Over Failure to Pay Overtime
-------------------------------------------------------------
EDDY MELENDEZ, individually and on behalf of all others similarly
situated, Plaintiff v. LL FLOORING, INC. f/k/a LUMBER LIQUIDATORS
INC. a/k/a LL FLOORING DESIGNS, and LESTER LOCKWOOD, Defendants,
Case No. 2:22-cv-04507 (D.N.J., July 8, 2022) seeks equitable and
legal relief for the Defendants' alleged willful violations of the
Fair Labor Standards Act of 1938, the New Jersey Wage and Hour Law,
and the New Jersey Wage Payment Law.
The Plaintiff was employed by the Defendants as a construction
worker in or around April 2018 until on or around April 11, 2022.
The Plaintiff alleges that the Defendants have engaged in an
unlawful corporate policy of minimizing labor costs and denying
employees of their lawfully earned compensation. Throughout his
employment with the Defendant, he was compensated by the Defendants
at a fixed hourly rate for all hours worked. Despite routinely
working more than 40 hours per week, the Defendant did not pay him
overtime compensation at the rate of one and one-half times his
regular rate of pay for all hours worked in excess of 40 per
workweek, says the Plaintiff.
LL Flooring, Inc. provides flooring services. Lester Lockwood owns
and operates the Corporate Defendant. [BN]
The Plaintiff is represented by:
Nicole Grunfeld, Esq.
KATZ MELINGER PLLC
370 Lexington Avenue, Suite 1512
New York, NY 10017
Tel: (212) 460-0047
E-mail: ndgrunfeld@katzmelinger.com
LOWE'S HOME: Cruz Wage-and-Hour Suit Removed to C.D. California
---------------------------------------------------------------
The case styled ROSA CRUZ, individually and on behalf of all others
similarly situated v. LOWE'S HOME CENTERS, LLC; LOWE'S HIW, INC.;
and DOES 1 through 20, inclusive, Case No. CVRI2201885, was removed
from the Superior Court of the State of California, Riverside
County, to the U.S. District Court for the Central District of
California on July 6, 2022.
The Clerk of Court for the Central District of California assigned
Case No. 5:22-cv-01130 to the proceeding.
The case arises from the Defendants' alleged violations of the
California Labor Code and the California's Business and Professions
Code including failure to pay minimum wages, failure to pay
overtime wages, failure to provide meal periods, failure to permit
rest breaks, failure to provide accurate itemized wage statements,
failure to timely pay final wages during employment, failure to pay
all wages due upon separation of employment, and unfair business
practices.
Lowe's Home Centers, LLC is a retailer of home improvement,
building materials, and home appliances, headquartered in North
Carolina.
Lowe's HIW, Inc. is an American retail company specializing in home
improvement, headquartered in North Carolina. [BN]
The Defendants are represented by:
Michele L. Maryott, Esq.
Katie M. Magallanes, Esq.
GIBSON, DUNN & CRUTCHER LLP
3161 Michelson Drive
Irvine, CA 92612-4412
Telephone: (949) 451-3800
Facsimile: (949) 451-4220
E-mail: mmaryott@gibsondunn.com
kmagallanes@gibsondunn.com
- and –
Katherine V.A. Smith, Esq.
GIBSON, DUNN & CRUTCHER LLP
333 South Grand Avenue
Los Angeles, CA 90071-3197
Telephone: (213) 229-7000
Facsimile: (213) 229-7520
E-mail: ksmith@gibsondunn.com
MULLOOLY JEFFREY: Court Narrows Claims in Valentine FDCPA Suit
--------------------------------------------------------------
In the case, CASSANDRA A. VALENTINE, individually and on behalf of
all others similarly situated, Plaintiffs v. MULLOOLY, JEFFREY,
ROONEY & FLYNN LLP, et al., Defendants, Civ. No. 2:20-cv-14152
(WJM) (D.N.J.), Judge William J. Martini of the U.S. District Court
for the District of New Jersey grants in part and denies in part
the Defendants' motion to dismiss the complaint for failure to
state a claim.
I. Introduction
In this putative class action, Plaintiff Valentine claims that a
collection letter sent by Defendants Mullooly, Jeffrey, Rooney &
Flynn LLP and its general partner, John Sheerin, (together,
"Defendants") violates the Fair Debt Collection Practices Act
("FDCPA"), 15 U.S.C. Section 1692 et seq. More specifically, the
Plaintiff alleges that the Defendants are attempting to collect
consumer debts on behalf of debt buyers who had not obtained the
proper licenses from the New Jersey Department of Banking and
Insurance as required under the New Jersey Consumer Finance
Licensing Act, N.J. Stat. Ann. Section 17:11C-3. The matter is now
before the Court on the Defendants' motion to dismiss the Complaint
pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to
state a claim.
II. Background
The Plaintiff allegedly incurred a financial obligation to Capital
One Bank and then defaulted. After the account was in default,
Distressed Asset Portfolio III, LLC ("DAP III") purchased the
account and either directly or through intermediate transactions
placed the account with the Defendants for collection. The
Defendants then mailed to the Plaintiff a collection letter dated
Oct. 8, 2019.
After receiving the Letter, the Plaintiff filed the present action.
She alleges that DAP III, the current creditor to whom the debt is
owed, impermissibly bought and assigned the debt without first
obtaining a license as a "consumer lender" or "sales finance
company" from the New Jersey Department of Banking and Insurance
("NJDOBI"), as required under the New Jersey Consumer Finance
Licensing Act ("NJCFLA"), N.J. Stat. Ann. Section 17:11C-3. The
Plaintiff alleges that the Defendants' Letter attempting to collect
the debt on behalf of DAP III consequently violates Sections 1692e,
1692f, and 1692g of the FDCPA by misrepresenting that DAP III had
the right to purchase and then collect payment on the debt when in
fact it did not. In seeking dismissal of the Complaint under Rule
12(b)(6), the Defendants argue that DAP III is exempt from the
NJCFLA's licensing requirements, and even if it were not exempt,
several courts outside the District of New Jersey have determined
that unlicensed debt collection is not a per se violation of the
FDCPA.
III. Discussion
A. The FDCPA
To succeed on an FDCPA claim, a plaintiff must demonstrate that
"(1) she is a consumer, (2) the defendant is a debt collector, (3)
the defendant's challenged practice involves an attempt to collect
a 'debt' as the Act defines it, and (4) the defendant has violated
a provision of the FDCPA in attempting to collect the debt." The
only element at issue in the case is the fourth -- whether the
Defendants violated the FDCPA when they attempted to collect a debt
on behalf of DAP III, an unlicensed debt collector.
B. The Valentine I Action
The Honorable John M. Vazquez, U.S.D.J., addressed this very issue
as it pertains to DAP III in this case's earlier-filed companion
case involving the same underlying Capital One debt, citing
Valentine v. Unifund CCR, Inc., No. 20-5024, 2021 WL 912854 (D.N.J.
Mar. 10, 2021) ("Valentine I"). In Valentine I, the Plaintiff sued
Unifund CCR, LLC and DAP III based on a collection letter sent by
Unifund attempting to collect the debt on behalf of DAP III. The
present case adds one more link in the chain: The Defendants are
now attempting to collect the debt on behalf of DAP III, which
remains the current creditor to whom the debt is owed, with Unifund
as DAP III's assignee for collection purposes. Both cases are
premised on the Plaintiff's allegation that the respective
collection letters violate Sections 1692e, 1692f and 1692g of the
FDCPA because DAP III is not licensed pursuant to the NJCFLA. .
In Valentine I, Unifund and DAP III moved to dismiss the complaint
on the grounds that the NJCFLA, read in conjunction with certain
regulatory changes issued by the Federal Deposit Insurance
Corporation ("FDIC") and the Office of the Comptroller of the
Currency ("OCC"), provides a licensing exception for federal
depository institutions like Capital One that subsequently applies
to DAP III as the successor-in-interest for the Plaintiff's
account. More specifically, Unifund and DAP III argued that the
FDIC and OCC's recently adopted "valid when made" rules "ensure
that subsequent purchasers of paper from a national bank are
afforded the same rights and privileges as the national bank when
it comes to enforcing the collectability of the paper." Unifund and
DAP III further argued that the line of cases from this District
recognizing that a debt collector's lack of license may constitute
an FDCPA violation is no longer good law because of the regulatory
changes, and that courts outside this District have determined that
unlicensed debt collection is not a per se FDCPA violation.
Judge Vazquez rejected each of these arguments, finding that the
NJCFLA licensing requirements applied to DAP III and that DAP III
qualified as a "consumer lender" required to obtain a license from
the NJDOBI to buy or collect debt. Now, on the instant motion to
dismiss, and without addressing the decision in Valentine I, the
Defendants advance arguments identical to those made by Unifund and
DAP III concerning the NJCFLA's applicability to DAP III. Finding
no basis to depart from Judge Vazquez's reasoning in Valentine I,
which Judge Martini incorporates into his own analysis, the
Defendants' motion will be denied on these same grounds.
C. DAP III's Lack of License
The Plaintiff's debt originated with Capital One. The Defendants
ask the Court to take judicial notice of the fact that Capital One
is a federal depository institution, as recognized by the FDIC, and
is therefore exempt from the NJCFLA's licensing requirements. The
Defendants argue, as Unifund and DAP III argued in Valentine I,
that recent regulatory changes by the OCC and FDIC ensure that DAP
III, the subsequent purchaser of the debt from an exempt entity, is
entitled to the same treatment as Capital One and is thus exempt
from the licensing requirements. Judge Martini disagrees and
declines to read the regulatory changes, which specifically address
the interest that national banks may charge, with such breadth.
In 2020, the OCC and FDIC both adopted final rules codifying the
"valid when made" rule, a longstanding common law principle that if
an interest rate was legal when a bank made the loan, the rate
remains valid after the bank sells, assigns, or transfers the loan.
The rule changes were prompted by the Second Circuit's decision in
Madden v. Midland Funding, LLC, 786 F.3d 246, 250-51 (2d Cir.
2015), in which the court held that the National Bank Act's
preemption of statelaw usury claims did not extend to non-national
bank assignees of national banks, thereby subjecting those
assignees to state-law usury restrictions with respect to interest
that accrued after assignment. The Second Circuit did not directly
address the application of the "valid when made" rule to the facts
of the case, but the OCC and FDIC determined that its holding
highlighted the need to issue "regulations clarifying the law that
governs the interest rates banks may charge."
The OCC's final rule therefore amended the federal regulation
corresponding to Section 85 of the National Bank Act, 12 U.S.C.
Section 85, by adding the following new paragraph: "(e) Transferred
Loans. Interest on a loan that is permissible under Section 85 will
not be affected by the sale, assignment, or other transfer of the
loan." Similarly, the FDIC rule amended the federal regulation
corresponding to Section 27 of the Federal Deposit Insurance Act,
12 U.S.C. Section 1831d, by clarifying: "Whether interest on a loan
is permissible under section 27 is determined as of the date the
loan was made" and "shall not be affected by the sale, assignment,
or other transfer of the loan, in whole or in part."
Considering the plain language of the amended regulations, along
with the OCC and FDIC's aims in issuing the clarifying regulations
in the aftermath of Madden, Judge Martini cannot find that the OCC
and FDIC's rules encompass state licensing requirements. Indeed,
the OCC expressly rejected requests to change its proposed
regulatory text to "clarify that the rule does not affect the
applicability of other state law requirements, including licensing
requirements," as unnecessary because "the OCC reads the regulatory
text to be consistent with these recommendations."
The FDIC likewise confirmed that its "proposed rule would not
exempt State banks or nonbanks from State laws and regulations,"
nor would it "address or affect the broader licensing or regulatory
requirements that apply to banks and non-banks under applicable
State law." "The rule would only clarify the application of section
27 with respect to the interest rates permitted for State banks'
loans." To that end, and as the Defendants have not identified any
cases that apply the OCC and FDIC's newly adopted rules or the
"valid when made" rule to licensing requirements, Judge Martini
finds that the rules did not affect DAP III's licensing
requirements under the NJCFLA.
The Defendants also argue that cases from this District recognizing
that a debt collector's failure to obtain a license pursuant to the
NJCFLA may constitute an FDCPA violation are no longer good law in
light of the regulatory changes. They point to cases from outside
this District in which courts have determined that unlicensed debt
collection is not a per se violation of the FDCPA. Because the
Court finds that the regulatory changes did not impact licensing
requirements, the regulatory changes likewise did not impact the
line of cases with which the Defendants takes issue. Judge Martini
therefore finds the decisions from this District to be persuasive.
Finally, the Defendants filed a Notice of Supplemental Authority
after their motion was fully briefed, and without first seeking
leave, advising the Court of a recent, unpublished New Jersey
Superior Court, Law Division decision, Woo-Padva v. Midland Funding
LLC, 2022 WL 267938, (N.J. Super. Ct. Law Div. Jan. 21, 2022).
There, the Superior Court determined that a debt buyer was not
required to obtain a license under the NJCFLA because it did not
meet the statutory definition of "consumer lender." The Defendants
acknowledge that they did not contest DAP III's status as a
"consumer lender" in their motion to dismiss, but they maintain
that the Woo-Padva decision provides an alternative basis for the
requested relief -- dismissal of the Complaint because DAP III does
not need to be licensed under the NJCFLA.
Judge Martini disagrees. He says, the Superior Court's decision is
neither binding nor necessarily persuasive in his determination
that DAP III is a "consumer lender." Courts in this District have
invoked that part of the NJCFLA -- the part reading: "directly or
indirectly engages in the business of buying, discounting or
endorsing notes" -- when classifying debt collection practices as
falling within the "consumer loan business." Accordingly, for the
reasons explained, the Defendants' motion to dismiss the Complaint
on the grounds that DAP III is exempt from the NJCFLA's licensing
requirements is denied.
D. Violations of Section 1692g
In the Complaint, the Plaintiff alleges that the Defendants
violated Section 1692g of the FDCPA, which requires debt collectors
to provide the consumer with written notice of certain rights and
information related to the debt, such as the amount of the debt and
the name of the creditor to whom the debt is owed. The Defendants
maintain that because the Plaintiff fails to allege conduct that
demonstrates any violation of Section 1692g, these claims must be
dismissed. The Plaintiff does not address this argument in her
opposition brief.
Judge Martini agrees with the Defendants that the Plaintiff's
Complaint fails to include sufficient allegations demonstrating
that they violated Section 1692g. This aspect of the Defendants'
motion is granted and the Section 1692g claims are dismissed
without prejudice.
IV. Conclusion
For the reasons set forth, Judge Martini grants in part and denies
in part the Defendants' motion to dismiss. The Plaintiff has 30
days to file an amended complaint that cures the deficiencies
articulated. If the Plaintiff does not file an amended pleading
within that time, the claims dismissed will be dismissed with
prejudice.
An appropriate Order accompanies the Opinion.
A full-text copy of the Court's July 6, 2022 Opinion is available
at https://tinyurl.com/uut9f89j from Leagle.com.
NOMI HEALTH: Jaime FLSA Suit Removed to S.D. Florida
----------------------------------------------------
The case styled ELIAS JAIME, individually and on behalf of all
others similarly situated v. NOMI HEALTH, INC., Case No.
2022-001819-CC-24, was removed from the County Court in and for the
Eleventh Judicial Circuit, Miami-Dade County, Florida, to the U.S.
District Court for the Southern District of Florida on July 6,
2022.
The Clerk of Court for the Southern District of Florida assigned
Case No. 1:22-cv-22044 to the proceeding.
The case arises from the Defendant's alleged violations of the Fair
Labor Standards Act.
The Plaintiff seeks relief in the form of statutory and actual
damages, along with the attorneys' fees and the costs of
litigation, for alleged injuries, actual damages, and harm, as well
as such other relief the court may deem equitable.
Nomi Health, Inc. is a healthcare company based in Florida. [BN]
The Defendant is represented by:
Andrew M. McKinley, Esq.
SEYFARTH SHAW LLP
1075 Peachtree Street, N.E., Suite 2500
Atlanta, GA 30309-3958
Telephone: (404) 885-1500
Facsimile: (404) 892-7056
ONLINE INFORMATION: Friedman Sues Over Debt Collection Practices
----------------------------------------------------------------
LEOPOLD FRIEDMAN, individually and on behalf of all others
similarly situated v. ONLINE INFORMATION SERVICES, INC., Case No.
519377/2022 (N.Y. Sup., Kings Cty., July 7, 2022) is a class action
on behalf of a class of New York consumers under section 1692 et
seq. of Title 15 of the United States Code, also known as the Fair
Debt Collection Practices Act.
The Plaintiff brings this claim on behalf of the following class,
pursuant to Article 9 of the New York Laws of Civil Practice Law &
Rules:
a. all individuals with addresses in the State of New York;
b. to whom the Defendant OIS sent an initial collection letter;
c. attempting to collect a consumer debt that the individual(s)
did not owe; and
d. which letter was sent on or after a date one (1) year prior
to the filing of this action and on or before a date twenty-
one (21) days after the filing of this action.
The identities of all class members are readily ascertainable from
the records of the Defendant and those companies and entities on
whose behalf it attempts to collect and/or have purchased debts.
Excluded from the Plaintiff Class are the Defendant and all
officers, members, partners, managers, directors and employees of
the Defendant and their respective immediate families, and legal
counsel for all parties to this action, and all members of their
immediate families.
The Plaintiff seeks damages and declaratory relief. He is a
resident of the State of New York, County of Kings.
The Defendant OIS is a "debt collector."[BN]
The Plaintiff is represented by:
Robert T. Yusko, Esq.
STEIN SAKS, PLLC
One University Plaza, Suite 620
Hackensack, NJ 07601
Telephone: (201) 282-6500
E-mail: ryusko@steinsakslegal.com
PATSY'S PIZZERIA: Lopez Sues Over Underpayment of Wages
-------------------------------------------------------
ROSALIO MENDEZ LOPEZ, individually and on behalf of others
similarly situated, Plaintiff v. PATSY'S PIZZERIA ROCKLAND LLC
d/b/a Patsy's Pizzeria, Defendant, Case No. 1:22-cv-05844
(S.D.N.Y., July 8, 2022) brings this complaint as a collective and
class action against the Defendant for allegedly failing to
properly pay wages in violations of the Fair Labor Standards Act
and New York Labor Law.
The Plaintiff was employed by the Defendant as a cook from on or
about July 9, 2021 until June 19, 2022.
The Plaintiff asserts that the Defendant misclassified him and
other similarly situated employees as exempt from overtime
compensation. Although they regularly worked more than 40 hours per
week, the Defendant did not pay them overtime compensation at the
rate of one and one-half times their regular rate of pay for all
hours worked in excess of 40 per workweek. Instead, they were only
paid straight time with no premium hours. The Defendant also failed
to pay them spread of hour compensation as required by federal and
state laws. Moreover, the Defendant failed to maintain accurate and
complete timesheets and payroll records, and failed to provide them
with accurate wage statement and with a written notice of their
rate of pay and such other information, added the Plaintiff.
On behalf of himself and all other similarly situated workers, the
Plaintiff seeks all unpaid wages and other monetary damages, pre-
and post-judgment interest, litigation costs and expenses and
attorney's fees, and other relief as the Court deems just and
proper.
Patsy's Pizzeria Rockland LLC operates a pizzeria company. [BN]
The Plaintiff is represented by:
Lina Stillman, Esq.
STILLMAN LEGAL, P.C.
42 Broadway, 12th Floor
New York, NY 10004
Tel: (212) 203-2417
Website: www.FightForUrRights.com
PIT VIPER LLC: Mejia Files ADA Suit in S.D. New York
----------------------------------------------------
A class action lawsuit has been filed against Pit Viper, LLC. The
case is styled as Richard Mejia, individually and on behalf of all
others similarly situated v. Pit Viper, LLC, Case No. 1:22-cv-05790
(S.D.N.Y., July 7, 2022).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Pit Viper -- https://www.pitviper.com/ -- manufactures and retails
sunglasses.[BN]
The Plaintiff is represented by:
Edward Y. Kroub, Esq.
MIZRAHI & KROUB LLP
200 Vesey Street, 24th Floor
New York, NY 10281
Phone: (212) 595-6200
Email: ekroub@mizrahikroub.com
PROFESSIONAL FIDUCIARY: MacTaggert Seeks to Recover ESOP Losses
---------------------------------------------------------------
SCOTT MacTAGGERT, on behalf of the Extreme Engineering Solutions,
Inc. Employee Stock Ownership Plan, and on behalf of a class of all
other persons similarly situated v. PROFESSIONAL FIDUCIARY
SERVICES, LLC; JOHN MICHAEL MAIER; ROBERT S. SCIDMORE; and BRET
FARNUM, Case No. 3:22-cv-00371 (W.D. Wis., July 7, 2022) is a class
action lawsuit brought under Sections 404, 406, 409, 410, and
502(a) of the Employee Retirement Income Security Act of 1974
("ERISA"), for losses suffered by the Plan and its participants
caused by the Trustee when it caused the Plan to buy shares of
Extreme Engineering for more than fair market value and other
relief.
The Plan has been injured and its participants have been deprived
of hard-earned retirement benefits resulting from Defendants'
violations of ERISA.
The Plaintiff brings this suit against Professional Fiduciary
Services, LLC and its president John Michael Maier, the trustee for
the Extreme Engineering Solutions, Inc. Employee Stock Ownership
Plan when the Plan acquired shares of Extreme Engineering
Solutions, Inc.in 2019; and selling shareholders Robert S.
Scidmore, Bret Farnum, and other individuals or entities that will
be identified after a reasonable opportunity for further
investigation or discovery.
The Plaintiff is a participant in the Plan, who was vested in
shares of Extreme Engineering allocated to his account in the
Plan.
Extreme Engineering was a privately held company and a party in
interest to the Plan. Extreme Engineering adopted the Plan
effective January 1, 2018. In January 2019, Selling Shareholders
sold 896,000 shares of Extreme Engineering common stock to Extreme
Engineering, representing 100% of the outstanding shares of the
company's common stock.
Simultaneously, the Plan purchased 358,400 shares of Extreme
Engineering common stock from Extreme Engineering for $80,377,400,
representing 100% of the outstanding common stock of the company,
which was financed by a term loan agreement that the Plan entered
into with Extreme Engineering at an interest rate of 3.15% to be
repaid over 50 years. As a result of the ESOP Transaction, Extreme
Engineering became 100% employee owned, says the suit.
The Trustee represented the Plan and its participants as trustee in
the ESOP Transaction. It had sole and exclusive authority to
negotiate the terms of the ESOP Transaction and to authorize the
Transaction on the Plan's behalf.
The ESOP Transaction allowed Selling Shareholders to unload their
interests in Extreme Engineering above fair market value and saddle
the Plan with tens of millions of dollars of debt over a 50-year
repayment period to finance the Transaction. The Trustee failed to
fulfill its ERISA duties, as trustee and fiduciary, to the Plan and
its participants, including Plaintiff, the suit added.[BN]
The Plaintiff is represented by:
William E. Parsons, Esq.
Connor J. Clegg, Esq.
HAWKS QUINDEL S.C.
409 E. Main Street
Madison, WI 53703
Telephone: (608) 257-0040
Facsimile: (608) 256-0236
E-mail: wparsons@hq-law.com
cclegg@hq-law.com
- and -
Gregory Y. Porter, Esq.
Ryan T. Jenny, Esq.
BAILEY & GLASSER LLP
1055 Thomas Jefferson Street, NW, Suite 540
Washington, DC 20007
Telephone: (202) 463-2101
Facsimile: (202) 463-2103
E-mail: gporter@baileyglasser.com
rjenny@baileyglasser.com
- and -
Patrick O. Muench, Esq.
BAILEY & GLASSER LLP
318 W. Adams Street, Suite 1512
Chicago, IL 60606
Telephone: (312) 500-8680
Facsimile: (304) 342-1110
E-mail: pmuench@baileyglasser.com
PROFESSIONAL FINANCE: Rodriguez Files Suit in D. Colorado
---------------------------------------------------------
A class action lawsuit has been filed against Professional Finance
Company, Inc. The case is styled as Maritza Rodriguez, Carlos
Martinez, on behalf of themselves and all others similarly situated
v. Professional Finance Company, Inc., Case No. 1:22-cv-01680-STV
(D. Colo., July 7, 2022).
The nature of suit is stated as Other P.I. for Personal Injury.
Professional Finance Company -- https://www.pfcusa.com/ -- is a
full-service accounts receivable management company located in
Greeley, Colorado.[BN]
The Plaintiffs are represented by:
Gary Michael Klinger, Esq.
MILBERG COLEMAN BRYSON PHILLIPS GROSSMAN, PLLC
227 West Monroe Street, Suite 2100
Chicago, IL 60606
Phone: (847) 208-4585
Email: gklinger@milberg.com
ROCKING CRAB: Illegally Retains Tips, Carpegna Class Suit Says
--------------------------------------------------------------
MARIA CARPEGNA, on behalf of herself and others similarly situated
v. ROCKING CRAB, LLC, Case No. 52883343 (Fla. Cir., Pinellas Cty.,
July 7, 2022) alleges that the Defendant violated the Florida
Constitution by illegally retaining tips that should have been
distributed to Plaintiff and the Class Members.
The Plaintiff worked for Defendant as a server from June 14, 2021
to September 12, 2021.
At its restaurant, Defendant employs servers like Plaintiff. The
Defendant allegedly paid its "tipped" servers a sub-minimum wage
for their work performed, says the suit.
The Defendant owns and operates a chain of restaurants in Florida
called Rocking Crab Seafood & Bar. At its restaurant, Defendant
employs servers like Plaintiff. The Defendant paid its "tipped"
servers a sub-minimum wage for their work performed.[BN]
The Plaintiff is represented by:
C. Ryan Morgan, Esq.
Jolie N. Pavlos, Esq.
MORGAN & MORGAN, P.A.
20 N. Orange Ave., 14 th Floor
P.O. Box 4979
Orlando, FL 32802-4979
Telephone: (407) 420-1414
Facsimile: (407) 245-3401
E-mail: RMorgan@forthepeople.com
JPavlos@forthepeople.com
ROMEO & JULIETTE: Hanyzkiewicz Files ADA Suit in E.D. New York
--------------------------------------------------------------
A class action lawsuit has been filed against Romeo & Juliette
Laser Hair Removal, Inc. The case is styled as Marta Hanyzkiewicz,
on behalf of herself and all others similarly situated v. Romeo &
Juliette Laser Hair Removal, Inc., Case No. 1:22-cv-03981
(E.D.N.Y., July 7, 2022).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Romeo & Juliette -- https://www.romeojuliettelaserhairremoval.com/
-- offers expert laser hair removal in NYC.[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
RUNNINGS SUPPLY: Fails to Timely Pay Wages, Rhoda Suit Alleges
--------------------------------------------------------------
PHILLIP RHODA, individually and on behalf of all others similarly
situated, Plaintiff v. RUNNINGS SUPPLY, INC., Defendant, Case No.
1:22-cv-00534 (W.D.N.Y., July 8, 2022) is a class action complaint
brought against the Defendant for its alleged violations of the New
York Labor Law.
The Plaintiff was employed by the Defendant as a department manager
from approximately 2014 to 2018 and from approximately 2018 to the
present.
The Plaintiff alleges the Defendant of failure to timely pay wages
as required by NYLL Section 191(1)(a). Thus, on behalf of himself
and all other similarly situated employees, the Plaintiff seeks to
recover the amount of their untimely paid wages as liquidated
damages, reasonable attorneys' fees and costs, and pre- and
post-judgment interest.
Runnings Supply, Inc. operates a chain of Runnings retail stores.
[BN]
The Plaintiff is represented by:
Andrew M. Debbins, Esq.
CONNORS LLP
1000 Liberty Building
Buffalo, NY 14202
Tel: (716) 852-5533
E-mail: amd@connorsllp.com
- and –
Yitzchak Kopel, Esq.
Alec M. Leslie, Esq.
BURSOR & FISHER, P.A.
888 Seventh Avenue
New York, NY 10019
Tel: (646) 837-7150
Fax: (212) 989-9163
E-mail: ykopel@bursor.com
aleslie@bursor.com
SECURIAN FINANCIAL: Fails to Pay Call Center Agents' OT Wages
-------------------------------------------------------------
Breshaunda Hartwell, individually, and on behalf of others
similarly situated v. Securian Financial Group, Inc., Case No.
0:22-cv-01728 (D. Minn., July 7, 2022) seeks unpaid overtime wages,
liquidated damages, and reasonable attorneys' fees and costs as a
result of the Defendant's willful violations of the Fair Labor
Standards Act and the Minnesota Payment of Wages Act.
The Plaintiff brings this action, individually and as a Rule 23
class action on behalf of all call center agents to recover earned
wages for all hours worked, including overtime hours, liquidated
damages, pre- and post-judgment interest, and reasonable attorneys'
fees and costs as a result of the Defendant's violation of the
Minnesota Payment of Wages Act.
The Plaintiff and the members of the putative collective and class
were employed as call center agents who were responsible for
handling inbound and outbound telephone calls from Defendant's
clients and customers.
The Defendant provides insurance, investment, and retirement
services to clients in the United States and Canada.[BN]
The Plaintiff is represented by:
Michele R. Fisher, Esq.
4700 IDS Center
80 South Eighth Street
Minneapolis, MN 55402
Telephone: (612) 256-3200
Facsimile: (612) 338-4878
E-mail: fisher@nka.com
SHOE EMPORIUM INC: Hoover Files Suit in Cal. Super. Ct.
-------------------------------------------------------
A class action lawsuit has been filed against Shoe Emporium Inc.,
et al. The case is styled as Melissa Hoover, on behalf of herself
and on behalf of all persons similarly situated v. Shoe Emporium
Inc., Does 1-50, Case No. 34-2022-00322906-CU-OE-GDS (Cal. Super.
Ct., Sacramento Cty., July 6, 2022).
The case type is stated as "Other Employment - Civil Unlimited."
Shoe Emporium Inc. is a footwear and accessories retail & wholesale
company.[BN]
The Plaintiff is represented by:
Nicholas J. De Blouw, Esq.
BLUMENTHAL NORDREHAUG BHOWMIK DE BLOUW
2255 Calle Clara
La Jolla, CA 92037-3107
Phone: 858-952-0354
Fax: 858-551-1232
Email: DeBlouw@bamlawca.com
SHOW STABLE: Calcano Files ADA Suit in S.D. New York
----------------------------------------------------
A class action lawsuit has been filed against Show Stable Artisans
LLC. The case is styled as Marcos Calcano, on behalf of himself and
all other persons similarly situated v. Show Stable Artisans LLC,
Case No. 1:22-cv-05807 (S.D.N.Y., July 7, 2022).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Show Stable Artisans -- https://www.equestrianjewelry.com/ -- is an
on-line catalog of equestrian jewelry.[BN]
The Plaintiff is represented by:
Jeffrey Michael Gottlieb, Esq.
Dana Lauren Gottlieb, Esq.
GOTTLIEB & ASSOCIATES
150 E. 18 St., Suite PHR
New York, NY 10003
Phone: (917) 796-7437
Fax: (212) 982-6284
Email: nyjg@aol.com
danalgottlieb@aol.com
SIMON PROPERTY: Cafe Gelato Seeks to Certify Six Classes
--------------------------------------------------------
In the class action lawsuit captioned as CAFE, GELATO & PANINI LLC,
d/b/a/ CAFE GELATO PANINI, on behalf of itself and all others
similarly situated, v. SIMON PROPERTY GROUP, INC., SIMON PROPERTY
GROUP, L.P., M.S. MANAGEMENT ASSOCIATES, INC., and THE TOWN CENTER
AT BOCA RATON TRUST, Case No. 0:20-cv-60981-AMC (S.D. Fla.), the
Plaintiff asks the Court to enter an order certifying classes.
The proposed Nationwide Class is:
"All tenants at the Simon 50 1 whose electricity consumption
was determined by Valquest within the applicable limitations
period.
The proposed Nationwide Rate Subclass is:
"All Nationwide Class members whose lease stated they would
be charged for electricity "at the same cost as would be
charged to Tenant from time to time by the utility company"
within the applicable limitations period.
The proposed Florida Statutory Class is:
"All tenants at the Simon Florida 5 3 whose electricity
consumption was determined by Valquest within the applicable
limitations period."
The proposed Florida Statutory Subclass is:
"All Florida Statutory Class members whose lease stated they
would be charged for electricity “at the same cost as would
be charged to Tenant from time to time by the utility
company” within the applicable limitations period."
The proposed Unjust Enrichment Class is:
"All tenants at the Simon 50 malls in Florida, Georgia,
Kansas, Maine, Maryland, Massachusetts, Minnesota, Missouri,
Nevada, North Carolina, Ohio, Pennsylvania, South Carolina,
and Virginia whose electricity consumption was determined by
Valquest within the applicable limitations period.
The proposed Unjust Enrichment Rate Subclass is:
"All Unjust Enrichment Class members whose lease stated they
would be charged for electricity "at the same cost as would
be charged to Tenant from time to time by the utility
company" within the applicable limitations period.
The Plaintiff moves to be appointed representative of all classes
and subclasses and that certain of its attorneys be appointed Class
Counsel.
The Defendants own and operate shopping malls and through uniform
practices, procedures, invoices, and lease provisions, have stolen
more than $32 million from Class members at 50 of their shopping
malls in 25 states by marking up their electric rates and billing
them for 173 million kilowatt hours ("kWh") more than the Class
members used. The profits from this nearly two-decade-old scheme
flowed directly to Defendants, who used them to fund the scheme and
pay its co-conspirator, Valquest. This lawsuit seeks to recover
those ill-gotten gains.
Simon Property is an American real estate investment trust that
invests in shopping malls, outlet centers, and community/lifestyle
centers.
A copy of the Plaintiffs' motion to certify classes dated June 30,
2022 is available from PacerMonitor.com at https://bit.ly/3cdahYC
at no extra charge.[CC]
The Plaintiffs are represented by:
David M. Buckner, Esq.
Seth Miles, Esq.
Brett E. von Borke, Esq.
BUCKNER + MILES
2020 Salzedo Street, Suite 302
Coral Gables, FL 33134
Telephone: (305) 964-8003
Facsimile: (786) 523-0485
E-mail: david@bucknermiles.com
seth@bucknermiles.com
vonborke@bucknermiles.com
- and -
John J. Uustal, Esq.
Cristina M. Pierson, Esq.
Matthew DellaBetta, Esq.
KELLEY | UUSTAL
500 N. Federal Highway, Suite 200
Fort Lauderdale, FL 33301-1103
Telephone: 954-522-6601
E-mail: jju@kulaw.com
cmp@kulaw.com
mdb@kulaw.com
SKECHERS USA: Whitehurst Sues Over Unsolicited Phone Calls Ads
--------------------------------------------------------------
BRYAN WHITEHURST, individually and on behalf of all others
similarly situated, Plaintiff v. SKECHERS USA, INC., Defendant,
Case No. 3:22-cv-00755-BJD-PDB (M.D. Fla., July 8, 2022) brings
this complaint as a class action against the Defendant for its
alleged violations of the Telephone Consumer Protection Act and the
Florida Telephone Solicitation Act.
The Plaintiff claims that in on or about April 2022, he received
telephonic sales call from the Defendant to his cellular telephone
number that was registered on the National Do-Not-Call Registry on
August 30, 2003. In an attempt to promote its products and
services, the Defendant allegedly engages in unsolicited text
messaging to individuals without obtaining their prior express
written consent. In addition, the Defendant did not provide opt-out
instructions to its telephonic sales text message call. Moreover,
the Defendant has utilized a computer software system that
automatically selected and dialed the Plaintiff's and other
persons' telephone numbers, says the Plaintiff.
According to the complaint, the Defendant's unsolicited telephonic
sales calls have caused the Plaintiff and other similarly situated
individuals harm, including statutory damages, inconvenience,
invasion of privacy, aggravation, annoyance, and violation of their
statutory privacy rights. Thus, on behalf of himself and all other
similarly situated individuals, the Plaintiff seeks an injunction
requiring the Defendant to cease all telephonic sales calls made
without express written consent, and an injunction requiring the
Defendant to comply with 47 C.F.R. Section 64.1200(d). The
Plaintiff also seeks statutory damages, and other relief as the
Court deems necessary.
Skechers USA, Inc. is an American multinational footwear company.
[BN]
The Plaintiff is represented by:
Jibrael S. Hindi, Esq.
THE LAW OFFICES OF JIBRAEL S. HINDI
110 SE 6th St., Suite 1744
Ft. Lauderdale, FL 33301
- and –
Manuel S. Hiraldo, Esq.
HIRALDO P.A.
401 E. Las Olas Boulevard, Suite 1400
Ft. Lauderdale, FL 33301
Tel: (954) 400-4713
E-mail: mhiraldo@hiraldolaw.com
SOCLEAN INC: Harrell Files Suit in W.D. Oklahoma
------------------------------------------------
A class action lawsuit has been filed against SoClean, Inc. The
case is styled as Sabrina Harrell, on behalf of herself and all
others similarly situated v. SoClean, Inc., Case No.
5:22-cv-00571-G (W.D. Okla., July 7, 2022).
The nature of suit is stated as Contract Product Liability.
SoClean, Inc. -- https://www.soclean.com/ -- 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:
Michael E Grant, Esq.
GRANT LAW FIRM
512 NW 12th St
Oklahoma City, OK 73103
Phone: (405) 232-6357
Fax: (405) 232-6358
Email: de1471@coxinet.net
- and -
Rex A Sharp, Esq.
Ruth A French-Hodson, Esq.
SHARP LAW, LLP
4820 W. 75th Street
Prairie Village, KS 66208
Phone: (913) 901-0505
Fax: (913) 901-0419
Email: rsharp@midwest-law.com
rafrenchhodson@midwest-law.com
SOCLEAN INC: Humphress Files Suit in W.D. Kentucky
--------------------------------------------------
A class action lawsuit has been filed against SoClean, Inc. The
case is styled as Teresa Humphress, George Mayes, Jr., on behalf
of themselves and all others similarly situated v. SoClean, Inc.,
Case No. 3:22-cv-00351-RGJ (W.D. Ky., July 6, 2022).
The nature of suit is stated as Contract Product Liability.
SoClean, Inc. -- https://www.soclean.com/ -- 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 Plaintiffs are represented by:
Andrew E. Mize, Esq.
BRANSTETTER, STRANCH & JENNINGS, PLLC
515 Park Avenue
Louisville, KY 40208
Phone: (502) 636-4333
Fax: (502) 636-4342
Email: andrewm@bsjfirm.com
- and –
Danielle L. Perry, Esq.
Gary Edward Mason, Esq.
MASON LLP
5101 Wisconsin Avenue NW, Suite 305
Washington, DC 20016
Phone: (202) 429-2290
Fax: (202) 429-2294
Email: gmason@masonllp.com
- and –
J. Gerard Stranch, IV, Esq.
BRANSTETTER STRANCH & JENNINGS, PLLC - NASHVILLE
223 Rosa L. Parks Ave., Suite 200
Nashville, TN 37203
Phone: (615) 254-8801
Fax: (615) 255-5419
Email: gerards@bsjfirm.com
- and –
Ronald Verdell Johnson, IV, Esq.
Russell L. Johnson, Esq.
DEAKLE JOHNSON LAW FIRM, PLLC
P.O. Box 2072
Hattiesburg, MS 39403
Phone: (601) 544-0631
- and –
Ruth Anne French-Hodson, Esq.
Sarah T. Bradshaw, Esq.
SHARP LAW FIRM
4820 W. 75th STreet
Prairie Village, KS 66208
Phone: (913) 901-0505
SORRENTO THERAPEUTICS: Zenoff Appeals Case Dismissal to 9th Circuit
-------------------------------------------------------------------
ANDREW ZENOFF is taking an appeal from a court ruling dismissing
his lawsuit entitled Andrew Zenoff, Plaintiff, on behalf of himself
and all others similarly situated, v. Sorrento Therapeutics, Inc.,
et al., Defendants, Case No. 3:20-cv-00966-AJB-DEB, in the United
States District Court for the Southern District of California.
As previously reported in the Class Action Reporter, the lawsuit
originally captioned as Wasa Medical Holdings, individually and on
behalf of all others similarly situated v. Sorrento Therapeutics,
Inc., Henry Ji, and Mark R. Brunswick, Case No.
3:20-cv-00966-AJB-AGS, filed on May 26, 2020, seeks to recover
damages caused by the Defendants' violations of the federal
securities laws and to pursue remedies under the Securities
Exchange Act of 1934, arising from the decline in the market value
of the company's securities due to the Defendants' materially false
and misleading statements. Judge Anthony J. Battaglia and
Magistrate Judge Andrew G. Schopler were assigned to the case.
On June 18, 2020, the case was reassigned from Judge Andrew G.
Schopler to Judge Daniel E. Butcher with the new Case No.
3:20-cv-00966-AJB-DEB. Andrew R. Zenoff was appointed as lead
Plaintiff in this case on July 27, 2020.
On November 30, 2021, the Plaintiff filed a first amended
consolidated class complaint against the Defendants.
The Defendants moved to dismiss the Plaintiff's first amended
consolidated class complaint for failure to state a claim on
December 30, 2021.
On April 11, 2022, Judge Anthony J. Battaglia granted the
Defendants' motion to dismiss as well as Defendants' request for
incorporation by reference and judicial notice.
The appellate case is captioned Andrew Zenoff v. Sorrento
Therapeutics, Inc., et al., Case No. 22-55641, in the United States
Court of Appeals for the Ninth Circuit, filed on July 1, 2022.
The briefing schedule in the Appellate Case states that:
-- Appellant Andrew R. Zenoff Mediation Questionnaire was due
July 8, 2022;
-- Appellant Andrew R. Zenoff opening brief is due on September
2, 2022;
-- Appellees Mark R. Brunswick, Henry Ji and Sorrento
Therapeutics, Inc. answering brief is due on October 3, 2022; and
-- Appellant's optional reply brief is due 21 days after service
of the answering brief. [BN]
Plaintiff-Appellant ANDREW R. ZENOFF, individually and on behalf of
all others similarly situated, is represented by:
Steven Francis Hubachek, Esq.
Trig Smith, Esq.
ROBBINS GELLER RUDMAN & DOWD, LLP
655 West Broadway, Suite 1900
San Diego, CA 92101
Telephone: (619) 231-1058
Defendants-Appellees SORRENTO THERAPEUTICS, INC., et al., are
represented by:
Peter Marshall Stone, Esq.
PAUL HASTINGS, LLP
1117 S California Avenue
Palo Alto, CA 94304
Telephone: (650) 320-1800
SPENGA INC: Smith Files TCPA Suit in S.D. Florida
-------------------------------------------------
A class action lawsuit has been filed against Spenga Inc. The case
is styled as Linda Masi Smith, individually and on behalf of all
others similarly situated v. Spenga Inc., Case No.
9:22-cv-80992-XXXX (S.D. Fla., July 7, 2022).
The lawsuit is brought over alleged violation of the Telephone
Consumer Protection Act for Restrictions of Use of Telephone
Equipment.
SPENGA -- https://spenga.com/ -- is a one-of-a-kind fitness
franchise that combines spin, strength training, and yoga to create
a group training workout unlike any other.[BN]
The Plaintiff is represented by:
Andrew John Shamis, Esq.
SHAMIS & GENTILE, PA
14 NE 1st Ave., Suite 705
Miami, FL 33132
Phone: (305) 479-2299
Fax: (786) 623-0915
Email: ashamis@sflinjuryattorneys.com
STAR TRIBUNE MEDIA: Feldman Files Suit in D. Minnesota
------------------------------------------------------
A class action lawsuit has been filed against Star Tribune Media
Company LLC. The case is styled as Kyle Feldman, on behalf of
himself and all others similarly situated v. Star Tribune Media
Company LLC, Case No. 0:22-cv-01731-ECT-TNL (D. Minn., July 7,
2022).
The nature of suit is stated as Other Statutory Actions.
Star Tribune Media Company LLC --
https://www.startribunecompany.com/ -- is a locally owned,
award-winning media company serving Minnesota and the upper
Midwest.[BN]
The Plaintiff is represented by:
Nathaniel James Weimer, Esq.
TEWKSBURY & KERFELD, P.A.
88 South Tenth St., Ste. 300
Minneapolis, MN 55403
Phone: (612) 334-3399
Email: nweimer@tkz.com
STONELEDGE FURNITURE: Class Settlement in Parker Suit Has Final OK
------------------------------------------------------------------
In the case, MICHAEL PARKER, individually and on behalf of all
others similarly situated, Plaintiff v. STONELEDGE FURNITURE, LLC
and SOUTHWESTERN FURNITURE OF WISCONSIN, LLC d/b/a ASHLEY
FURNITURE, Defendants, Case No. 8:21-cv-00740-CEH-AEP (M.D. Fla.),
Judge Charlene Edwards Honeywell of the U.S. District Court for the
Middle District of Florida, Tampa Division, grants the parties'
Unopposed Motion for Final Approval of Settlement and enters Final
Judgment.
The matter comes before the Court on the parties' Unopposed Motion
for Final Approval of Settlement. It heard argument on the motion
on June 17, 2022.
On Sept. 21, 2021, the parties notified the Court a settlement had
been reached between Plaintiff Parker, individually and on behalf
of all others similarly situated, and the Defendants related to the
Plaintiff's claims in this action under the Telephone Consumer
Protection Act, 47 U.S.C. Sections 227, et seq., ("TCPA").
On Feb. 2, 2022, the Plaintiff filed an Unopposed Motion for
Preliminary Approval of Settlement and Notice to the Settlement
Class.
On Feb. 17, 2022, the Court entered an Order Preliminarily
Certifying Settlement Class, Preliminarily Approving Class Action
Settlement and Approving Settlement Class Notice, approving the
form, content, and procedure of Notice to the Settlement Class.
It preliminarily and conditionally certified for settlement
purposes only, a class defined as: All persons throughout the
United States to whom Defendants and/or their agent(s) sent, or
caused to be sent, a text message, directed to a number assigned to
a cellular telephone service, utilizing an automatic telephone
dialing system, without prior express consent during the Class
Period, between May 1, 2017 and Sept. 30, 2020 (the Settlement
Class).
In addition, the Court set a Final Approval Hearing to take place
on June 17, 2022.
On May 6, 2022, the Plaintiff filed a Motion for Final Approval of
Class Action Settlement and Award of Attorney's Fees and Costs.
On June 17, 2022, the Court held a duly noticed Final Approval
Hearing to consider: (1) whether to finally certify a Settlement
Class for settlement purposes only; (2) whether the terms and
conditions of the Settlement Agreement are fair, reasonable, and
adequate and should be finally approved; (3) whether the Notice and
claim procedures comply with Federal Rule of Civil Procedure 23 and
due process; (4) what amount to award Class Counsel Attorneys' Fees
and Expenses; and (5) whether to enter this Final Approval Order
and Judgment, dismissing all claims asserted in this action on the
merits and binding the Settlement Class Members to the Releases set
forth in the Settlement Agreement ("Final Approval Order").
Having considered the motion, heard argument of the counsel, and
being otherwise advised in the premises, Judge Honeywell grants the
parties' Unopposed Motion for Final Approval of Settlement.
Pursuant to Fed. R. Civ. P. 23, Judge Honeywell finally certifies
the Settlement Class, as identified in the Settlement Agreement and
the Preliminary Approval Order as: All persons throughout the
United States to whom Defendants and/or their agent(s) sent, or
caused to be sent, a text message, directed to a number assigned to
a cellular telephone service, utilizing an automatic telephone
dialing system, without prior express consent during the Class
Period, between May 1, 2017 and Sept. 30, 2020 (the Settlement
Class). She finally designates Plaintiff Parker as the Class
Representative and finally appoints Abbas Kazerounian and Mona
Amini of Kazerouni Law Group, APC; and Kevin J. Cole of KJC Law
Group, APC as the Class Counsel for the Settlement Class.
The Settlement Agreement is finally approved in all respects as
fair, reasonable and adequate. The terms and provisions of the
Settlement Agreement, including all Exhibits thereto, have been
entered into in good faith and are fully and finally approved as
fair, reasonable, and adequate as to, and in the best interests of,
each of the Parties and the Settlement Class Members.
The Parties are directed to implement the Settlement Agreement
according to its terms and provisions. Judge Honeywell appoints
Kurtzman Carson Consultants LLC as the third-party Claims
Administrator. The Claims Administrator is directed to provide to
those Settlement Class Members who submit valid, timely, and
complete Claim Forms reflecting that they meet the criteria
established in the Settlement Agreement to be eligible for a
Settlement Award, a Settlement Award consisting, at the Settlement
Class Member's election, of either (1) payment by check of $10 for
the first text received from Defendants and $7 for the second text
received from Defendants, if any (a "Cash Settlement Payment"); or,
alternatively, (2) a $25 voucher for the first text received from
Defendants and a $15 voucher for the second text from the
Defendants, if any (a "Voucher Award").
Any Settlement Class Member who has not indicated their preferred
form of Settlement Award will by default receive the minimum Cash
Settlement Payment or the Cash Settlement Payment corresponding
with the number of texts claimed on the Settlement Class Member's
Claim Form (i.e., $10 for one text claimed received from Defendants
or a total of $17 for two or more texts claimed received from
Defendants). The additional terms, conditions and limitations on
the number of Settlement Awards that may be issued to a Settlement
Class Member and on the use and expiration of Settlement Awards set
forth in Sections III.5 through III.8 of the Settlement Agreement
and in the Notice are hereby approved and incorporated by reference
as if fully set forth herein.
Judge Honeywell approves the Class Counsel's request for attorney
fees, costs, and expenses, and awards the Class Counsel $400,000 as
reasonable attorneys' fees and costs incurred in the Action. The
award of attorneys' fees and costs to Class Counsel will be paid by
the Defendants within the time period and manner set forth in the
Settlement Agreement. She awards the Class Counsel for their time
incurred and expenses advanced.
Upon entry of the Final Approval Order, all members of the
Settlement Class who did not validly and timely submit Requests for
Exclusion in the manner provided in the Agreement shall, by
operation of the Final Approval Order, be bound by the terms of the
Settlement Agreement and the Order, and have fully, finally and
forever released, relinquished and discharged the Defendants and
the Released Parties from the Released Claims as set forth in the
Settlement Agreement and also set forth.
Without further order of the Court, the Settling Parties may agree
to reasonably necessary extensions of time to carry out any of the
provisions of the Settlement Agreement.
The Action, including all individual claims and class claims
presented, is dismissed on the merits and with prejudice against
the Plaintiff and all other Settlement Class Members, without fees
or costs to any party except as otherwise provided in the Final
Approval Order.
Finding that there is no just reason for delay, Judge Honeywell,
orders that the Final Approval Order will constitute a final
judgment pursuant to Fed. R. Civ. P. 54.
The Clerk is directed to close the case.
A full-text copy of the Court's July 6, 2022 Order is available at
https://tinyurl.com/3yztseed from Leagle.com.
SYNCHRONY BANK: Court Extends Time to Complete Discovery in Lucas
-----------------------------------------------------------------
In the class action lawsuit captioned as Lucas v. Synchrony Bank,
Case No. 4:21-cv-00070 (N.D. Ind.), the Hon. Judge John E. Martin
entered an order granting motion for extension of time to complete
discovery related to class certification.
-- Discovery deadline: Nov. 3, 2022
-- Expert Discovery deadline: Nov. 3, 2022
-- The Defendant expert witness Oct. 5, 2022
disclosures and reports to be
delivered to the plaintiff by:
-- Brief seeking class certification Dec. 5, 2022
due by:
-- Reply to be filed by: Feb. 17, 2023
-- Response to be filed by: Jan. 18, 2023
The nature of suit states Restrictions of Use of Telephone
Equipment.
Synchrony Financial is a consumer financial services company
headquartered in Stamford, Connecticut, United States.[CC]
T. ROWE PRICE: Class Settlement in Feinberg Suit Wins Final Nod
---------------------------------------------------------------
In the case, DAVID G. FEINBERG, et al., and all others similarly
situated, Plaintiff v. T. ROWE PRICE GROUP, INC., et al.,
Defendants, Civil No. JKB-17-0427 (D. Md.), Judge James K. Bredar
of the U.S. District Court for the District of Maryland grants the
Plaintiffs' Unopposed Motion for Final Approval of Class Action
Settlement and the Plaintiffs' Motion for Award of Attorneys' Fees,
Reimbursement of Expenses, and Service Awards to Class
Representatives.
I. Background
The case involves a challenge to the administration of the T. Rowe
Price U.S. Retirement Program (the "Plan") and was brought pursuant
to the Employee Retirement Income Security Act of 1974 ("ERISA").
The Plaintiffs alleged violations of ERISA's fiduciary duties and
prohibited transactions provisions stemming from the practice
wherein financial services organizations' 401(k) plans offer the
organizations' own proprietary investment vehicles. In essence,
they alleged that the Defendants favored the economic interests of
T. Rowe Price over the interests of their employees and of the Plan
by offering only in-house investment funds in the Plan, despite
such funds allegedly having higher fees and poorer performance than
non-T. Rowe Price funds.
Plaintiff Feinberg filed the original complaint on Feb. 14, 2017,
and the Defendants filed a motion to dismiss. The Plaintiffs
thereafter filed an amended complaint, adding 10 additional named
plaintiffs, and the Defendants filed another motion to dismiss,
which the Court denied. The Court certified the class on May 17,
2019 pursuant to Federal Rule of Civil Procedure 23(b)(1).
Following extensive fact discovery, the parties prepared summary
judgment motions accompanied by voluminous records. On Feb. 10,
2021, the Court largely denied those motions, but expressed
skepticism regarding the Plaintiffs' ability to recover at trial.
The Court set a trial date, with trial anticipated to last two and
a half weeks.
The parties participated in settlement negotiations before
Magistrate Judge Copperthite, reached a tentative agreement to
settle the case on July 23, 2021, and continued to exchange
settlement papers into October 2021. Further mediation -- both
before Judge Copperthite and a private mediator -- was necessary to
fully resolve the remaining disagreements between the parties, and
a full settlement agreement was ultimately finalized on Dec. 16,
2021.
The Court preliminarily approved the proposed settlement agreement
on Jan. 18, 2022. The proposed settlement agreement was amended to
correct non-substantive items, (and to revise the release language.
The proposed settlement agreement provides for a cash payment of $7
million and for the addition of a feature that will allow Plan
participants to invest in non-T. Rowe Price funds for the first
time (the "Brokerage Window"). It also describes a $6.6 million
payment (the "Special Payment") made in 2019 by the Defendants to
certain class members.
The $7 million will be allocated to the class members pursuant to a
plan of allocation. Each class member will receive a $20 minimum
payment and a pro rata amount based on the class members' quarterly
balances in the 39 challenged funds between 2011 and 2022. To the
extent that a class member received a portion of the Special
Payment, the pro rata share attributable to quarterly balances from
2011 to 2013 will be reduced. This reduction will then in turn be
divided pro rata to those class members who did not receive the
Special Payment. The Brokerage Window will allow Plan participants
to invest in non-T. Rowe Price investment funds.
The Defendants will be required to offer this feature for at least
ten years unless (1) "upon the determination by an experienced,
competent, and professional independent fiduciary that there has
been a change in circumstances and it would violate ERISA's duty of
prudence to continue to offer such a Brokerage Window to
participants under such circumstances" or (2) "if the Defendants
reasonably conclude that there has been a change in law or
regulation relating to fiduciary monitoring or reporting
requirements for investment offerings available through the
Brokerage Window that makes such monitoring or reporting materially
more burdensome or costly than it is today."
The Special Payment was paid to Plan participants who had a balance
in their Plan accounts and were T. Rowe Price employees at the end
of the years 2011, 2012, or 2013. Over 6,000 class members were'
eligible for, and received, distributions from the Special Payment.
The purpose of the Special Payment Was to retroactively provide the
benefit of certain payments T. Rowe Price has made beginning in
2014. As the Court explained in a prior Memorandum -- and as the
parties agreed during the Fairness Hearing -- the Special Payment
was "a discretionary 2019 payment made in response to the
initiation of litigation."
The Plaintiffs filed the instant Motion for Final Approval of Class
Action Settlement and Motion for Award of Attorneys' Fees,
Reimbursement of Expenses, and Service Awards to Class
Representatives. The Court held a Fairness Hearing on June 10,
2022. No class members have objected to the proposed settlement.
II. Discussion
A. Motion for Final Approval of Class Action Settlement
The Plaintiffs' Motion for Final Approval of Class Action
Settlement seeks final approval of the proposed settlement
agreement. Because the proposed settlement meets the requirements
under Federal Rule of Civil Procedure 23, Judge Bredar approves the
proposed settlement.
B. Motion for Award of Attorneys' Fees, Reimbursement of Expenses,
and Service Awards to Class Representatives
The Plaintiffs have also filed a Motion for Award of Attorneys'
Fees, Reimbursement of Expenses, and Service Awards to Class
Representatives, seeking $3.5 million in attorneys' fees;
reimbursement of litigation expenses in the amount of $707,908.79;
and service awards to the eleven class representatives ranging from
$10,000 to $15,000.
Judge Bredar also grants this motion and the requested amounts. He
finds that (i) the requested award of $3.5 million in attorneys'
fees is reasonable pursuant to the percentage-of-recovery method
and confirms the reasonableness with a lodestar cross-check; (ii)
the expense is reasonable in light of the reliance other district
courts in similar ERISA excessive fee litigation have placed on
expert testimony and the complex nature of ERISA litigation; and
(iii) the requested incentive awards are reasonable and he approves
the incentive awards to these 11 class representatives for their
important contributions to the case.
III. Conclusion
For the foregoing reasons, Judge Bredar grants the Plaintiffs'
Motion for Final Approval of Class Action Settlement, and the
Plaintiffs' Motion for Award of Attorneys' Fees, Reimbursement of
Expenses, and Service Awards to Class Representatives. He dismisses
the case.
A full-text copy of the Court's July 6, 2022 Memorandum is
available at https://tinyurl.com/2p93a5wn from Leagle.com.
TIDEWATER FINANCE: Johnson Files Suit in D. Maryland
----------------------------------------------------
A class action lawsuit has been filed against Tidewater Finance
Company, et al. The case is styled as Abriale Johnson, on behalf of
herself and others similarly situated v. Tidewater Finance Company
doing business as: Tidewater Motor Credit, Tidewater Credit
Services, Case No. 1:22-cv-01656-ADC (D. Md., July 6, 2022).
The nature of suit is stated as Banks and Banking.
Tidewater Finance Company doing business as Tidewater Motor Credit
-- https://www.tidewatermotor.com/ -- is a financial services
company that provides alternate financing and auto lending
services.[BN]
The Plaintiff is represented by:
Thomas A. Pacheco, Esq.
MILBERG COLEMAN BRYSON PHILLIPS GROSSMAN, PLLC
15453 Indianola Drive
Derwood, MD 20855
Phone: (443) 980-6119
Fax: (865) 522-0049
Email: tpacheco@milberg.com
TRANSOCEAN RESOURCES: Ortiz Files ADA Suit in W.D. New York
-----------------------------------------------------------
A class action lawsuit has been filed against Transocean Resources
Management, Inc. The case is styled as Joseph Ortiz, on behalf of
himself and all other persons similarly situated v. Transocean
Resources Management, Inc., Case No. 1:22-cv-00531-GWC (W.D.N.Y.,
July 7, 2022).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Transocean Resources Management, Inc. provides Internet based
services.[BN]
The Plaintiff is represented by:
Jeffrey M. Gottlieb, Esq.
GOTTLIEB & ASSOCIATES
150 E. 18th Street, Suite PHR
New York, NY 10003
Phone: (212) 228-9795
Fax: (212) 982-6284
Email: jeffrey@gottlieb.legal
- and -
Michael A. LaBollita, Esq.
GOTTFRIED & GOTTFRIED, LLP
122 East 42nd. St., Suite 620
New York, NY 10168
Phone: (212) 228-9795
Email: michael@gottlieb.legal
TRANSWORLD SYSTEMS: Wins Summary Judgment in Snarr Class Suit
-------------------------------------------------------------
In the case, JAMES T. SNARR, Plaintiff v. TRANSWORLD SYSTEMS, INC.,
and NATIONAL COLLEGIATE STUDENT LOAN TRUST 2006-3, Defendants, Case
No. 2:21-cv-3 (D. Utah), Judge Howard C. Nielson, Jr. of the U.S.
District Court for the District of Utah grants summary judgment in
Transworld's favor and dismisses the claims against the Trust.
I. Introduction
Plaintiff Snarr sued the National Collegiate Student Loan Trust
2006-3 and Transworld System, Inc. (whom the parties frequently
refer to as TSI), on behalf of himself and a putative class of
similarly situated individuals, asserting claims for (1) civil
conspiracy to violate the Utah Consumer Sales Practices Act; (2)
violation of the Fair Debt Collection Practices Act; (3)
"Injunctive Relief"; and (4) invasion of privacy/intrusion upon
seclusion. The Defendants moved to dismiss the claims and the Court
converted TSI's motion to a motion for summary judgment pursuant to
Federal Rule of Civil Procedure 12(d).
II. Background
On Dec. 3, 2019, the Trust sued Mr. Snarr in Utah state court. The
Trust is an investment vehicle "engaged in the practice of buying
large numbers of education-related consumer loans and collecting
payments from the borrowers for the benefit of investors." At the
time of the suit, TSI operated as the default loan servicer for the
Trust. In the collection action, the Trust alleged that Mr. Snarr
was delinquent on a loan owned by the Trust, which it had obtained
through a consolidated loan pool purchase. To support these
allegations, the Trust submitted an affidavit signed by Aaron
Motin, a TSI employee.
In his affidavit, Mr. Motin represented that he had personal
knowledge of the loan records, that the loan had an outstanding
principal balance, and that the "loan had been transferred, sold,
and assigned" to the Trust. Mr. Motin further stated that he was
authorized to make these representations. The affidavit purported
to incorporate several exhibits, including Exhibit B, a "Credit
Agreement/Promissory Note" and "Note Disclosure Statement" signed
by Mr. Snarr; and Exhibit C, the "Pool Supplement" and the
"Roster"—a redacted excerpt of the complete loan schedule that
accompanied the Pool Supplement -- which purportedly showed that
the Trust had purchased the loans comprising the "pool" and that
Mr. Snarr's loan was among these loans.
None of these exhibits was actually attached to the Motin Affidavit
when it was filed in the state court case, however, and Mr. Snarr
alleges that no documents establishing the Trust's ownership of his
loan were ever submitted in that case. Regardless, Mr. Snarr failed
to appear in state court or otherwise defend against the Trust's
suit and that court accordingly entered default judgment against
him.
Mr. Snarr then initiated this suit, alleging that the Defendants
are unable to prove ownership of his loan and therefore engaged in
"unfair, deceptive, and otherwise unconscionable debt collection
practices" when they sued him to collect on that loan in state
court. The Defendants removed the case to federal court, asserting
both federal question jurisdiction and minimum diversity
jurisdiction under the Class Action Fairness Act, 28 U.S.C. Section
1332(d). They then moved to dismiss the complaint for failure to
state a claim. Among other things, TSI asserted that the missing
exhibits do in fact exist and attached them to its motion to
dismiss. TSI also attached the complete loan schedule that
accompanied the Pool Supplement and from which the Roster was
excerpted.
On Sept. 20, 2021, the court heard arguments on the motions. The
court recognized that "that the crux of plaintiff's claims is that
the Motin affidavit is false and fraudulent because the exhibits it
references do not exist, and that Transworld has falsified similar
documents in other cases." Thus, according to Mr. Snarr, "the
defendants cannot establish that they own the loan in question" and
"this alleged wrongdoing forms the basis of the Plaintiff's
conspiracy, FDCPA, and intrusion upon seclusion claims." The
counsel for Mr. Snarr agreed that if the documents proffered by TSI
were legitimate, he would not have a case. But Mr. Snarr further
argued that the documents submitted by TSI were "not the actual
exhibits" that had accompanied the sales agreements through which
the Trust claims it ultimately obtained his loan and that he could
"show that these are not the original documents that they claim to
be."
Because Mr. Snarr contested the authenticity of these exhibits, and
because the exhibits apparently would, if authentic and admissible,
dispose of Mr. Snarr's claims, the Court converted the motion to
dismiss to a motion for summary judgment pursuant to Federal Rule
of Civil Procedure 12(d). As required by this Rule, it offered Mr.
Snarr "a reasonable opportunity to test and possibly challenge the
authenticity and accuracy of Transworld's exhibits, specifically
these attachments, if he wishes to do so or otherwise to argue that
these exhibits do not dispose of his claims."
The Court then entered a stipulated discovery scheduling order on
Oct. 14, 2021. The order provided for "limited discovery regarding
the accuracy or authenticity of the loan schedule and, by
extension, the printed excerpt of the loan schedule" The order
further permitted Mr. Snarr to take a single one-hour deposition
and to request five interrogatories and a single admission.
Finally, the parties were ordered to file supplemental briefs after
discovery was completed "addressing the authenticity or accuracy of
the loan schedule/schedule excerpt."
The parties filed three status reports detailing the progress of
the limited discovery. The first status report, filed Nov. 29,
2021, informed the court that TSI had provided responses to Mr.
Snarr's interrogatories, requests for production, and request for
admission. On Jan. 14, 2022, the parties represented that Mr. Snarr
was working with his expert to address TSI's proposed protocol for
inspecting the electronic loan schedule and that Mr. Snarr's expert
would "forensically examine the file" once the parties agreed on an
appropriate protocol. The final report was filed on April 1, 2022.
The report explained that Mr. Snarr "has decided not to proceed
with an inspection of the loan schedule source file" or to complete
the "fact deposition of TSI's corporate representative" -- meaning
that limited discovery was now complete. The parties then filed
supplemental briefs and the Court heard further argument on the
converted motion.
III. Discussion
The case turns on two issues: Whether the Roster -- or the loan
schedule from which it was purportedly derived -- is authentic and
establishes the Trust's ownership of Mr. Snarr's loan and whether
the Roster or the loan schedule could be admitted as evidence at
trial. The counsel for Mr. Snarr conceded at oral argument that if
court concludes that the loan schedule or the Roster is both
authentic and admissible, those conclusions would foreclose all of
his claims against TSI and the Trust. Judge Nielson accordingly
begins his analysis there.
A.
Mr. Snarr first argues that the Pool Supplement expressly
transferred the "Bank One Loans described in Schedule 1" and
therefore could not have included his loan because it is a Chase
Bank loan. And Mr. Snarr's loan agreement does state that his loan
is a "Education One Undergraduate Loan" issued by JPMorgan Chase
Bank, N.A. The Note Disclosure Statement, however, expressly
indicates that Mr. Snarr's lender is "Bank One (JPMorgan Chase Bank
N.A.)."
Judge Nielson holds that the Court's conclusion that the two sale
agreements and corresponding loan schedule are sufficient to
establish ownership is consistent with Judge Jenkins's prior
treatment of this issue in Taylor v. National Collegiate Student
Loan Trust 2007-1, 2021 WL 673458 (D. Utah Feb. 22, 2021). In that
case, which also involved TSI, the plaintiffs argued that the loan
schedule excerpt could not be trusted.
There, the court explained the same two-step transaction and noted
that the defendants had produced an excerpt of the loan schedule
that included the last four digits of the plaintiff's social
security number as well as the same loan number, amount, and date
as those shown in his loan agreement. It had also previously
ordered the defendants to produce the metadata for the complete
loan schedule and noted that "Mr. Luke's affidavit states the
schedule 1 excerpt 'was taken directly from the full schedule and
the substance has not been altered in any way'" and that the
plaintiffs did not depose him or contest the adequacy of the
metadata until nearly six months after it was produced. Judge
Jenkins concluded that these facts were sufficient to establish
that the plaintiff's loan was part of the pool acquired by the
Trust.
As in Taylor, Mr. Snarr had the opportunity to depose TSI's
corporate representative and to conduct a forensic analysis of the
metadata for Schedule 1 but he declined to do so. For this reason,
as well as all of the other reasons discussed, Mr. Snarr has failed
to demonstrate that there is any genuine dispute of material fact
regarding the Trust's ownership of his loan.
B.
Mr. Snarr's final argument is that even if the Roster is authentic,
it is not admissible as evidence. Specifically, he argues that this
document is hearsay and that TSI cannot lay an adequate foundation
for its admission under the business-record exception because
neither Mr. Motin nor Mr. Luke is familiar with the recordkeeping
practices of the entity that created the loan schedule in the first
place.
Mr. Snarr's argument, however, is not supported by Federal Rule of
Evidence 803(6), Judge Nielson finds. He says, Mr. Snarr points to
unrelated proceedings that he claims demonstrate that the loan
schedule and Roster cannot be trusted. But having carefully
reviewed Mr. Snarr's submission -- most of which question the
accuracy of TSI affidavits between 2013 to 2016, far before the
state court action at issue was filed against Mr. Snarr -- Judge
Nielson finds them insufficient to call into question either the
veracity of the declarations submitted by Mr. Luke and Mr. Motin in
the case or the trustworthiness of the loan schedule.
For all of these reasons, Judge Nielson concludes that TSI has
proffered uncontroverted evidence that would be admissible at trial
establishing that the Trust owned Mr. Snarr's loan at the time it
initiated the collection action in state court. It follows that TSI
is entitled to summary judgment.
C.
The counsel for Mr. Snarr acknowledged at the summary judgment
hearing that "probably nothing" would be left of his claims against
the Trust if the Court granted TSI's motion and that "as TSI goes,
the Trust goes." Judge Nielson agrees that the Court's conclusions
regarding the authenticity and admissibility of the Roster and loan
schedule are fatal to all of Mr. Snarr's remaining claims.
Among other things, Mr. Snarr's claim under the Fair Debt
Collection Practices Act is premised on the theory that TSI falsely
asserted that the loan schedule existed when it actually did not
and that TSI could not produce evidence that the Trust actually
owned his loan. Mr. Snarr's invasion of privacy or intrusion upon
seclusion claim cannot be based on the Defendants' actions to
collect on a loan that the Trust lawfully owned.
IV. Disposition
For all of these reasons, Judge Nielson grants summary judgment in
favor of TSI on all of the Plaintiff's claims against TSI and
dismisses all of the Plaintiff's claims against the Trust.
A full-text copy of the Court's July 6, 2022 Memorandum Decision &
Order is available at https://tinyurl.com/3x5ywd8z from
Leagle.com.
TREE CENTER: Mejia Files ADA Suit in S.D. New York
--------------------------------------------------
A class action lawsuit has been filed against The Tree Center LLC.
The case is styled as Richard Mejia, individually and on behalf of
all others similarly situated v. The Tree Center LLC, Case No.
1:22-cv-05794 (S.D.N.Y., July 7, 2022).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
The Tree Center -- https://www.thetreecenter.com/ -- offers a huge
inventory of trees, shrubs & plants for sale.[BN]
The Plaintiff is represented by:
Edward Y. Kroub, Esq.
MIZRAHI & KROUB LLP
200 Vesey Street, 24th Floor
New York, NY 10281
Phone: (212) 595-6200
Email: ekroub@mizrahikroub.com
UNREAL BRANDS: Mejia Files ADA Suit in S.D. New York
----------------------------------------------------
A class action lawsuit has been filed against Unreal Brands, Inc.
The case is styled as Richard Mejia, individually and on behalf of
all others similarly situated v. Unreal Brands, Inc., Case No.
1:22-cv-05784 (S.D.N.Y., July 7, 2022).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Unreal Brands -- https://unrealsnacks.com/ -- is a company that
produces candy products without artificial flavors, color and other
non-food additives.[BN]
The Plaintiff is represented by:
Edward Y. Kroub, Esq.
MIZRAHI & KROUB LLP
200 Vesey Street, 24th Floor
New York, NY 10281
Phone: (212) 595-6200
Email: ekroub@mizrahikroub.com
UPSTART HOLDINGS: AI-Based Underwriting Model Misleading, Suit Says
-------------------------------------------------------------------
HANDELSBANKEN FONDER AB, on behalf of itself and all others
similarly situated v. UPSTART HOLDINGS, INC., DAVID J. GIROUARD,
and SANJAY DATTA, Case No. 1:22-cv-03492 2:22-cv-02706-SDM-EPD
(S.D. Ohio, July 7, 2022) is a securities class action on behalf of
all investors that purchased Upstart securities between March 18,
2021 and May 9, 2022, inclusive (the "Class Period"), including
common stock and Convertible Senior Notes due 2026 issued by
Upstart in a private offering to qualified institutional buyers on
or around August 18, 2021 (the "Convertible Senior Notes").
Upstart is a financial technology company that uses artificial
intelligence ("AI") and data science to underwrite personal loans
predominantly to borrowers whose limited or poor credit history
generally precludes them from obtaining loans from more traditional
sources. Upstart claims that its underwriting process enables
banking partners to originate loans with higher approval rates and
lower loss rates than traditional underwriting processes.
The Company partners with banks to offer credit to consumers,
either directly through Upstart's website or through its banking
partners' websites that are embedded with Upstart's technology, and
charges fees for the use of Upstart's technology. Upstart's
fee-based business model is predicated on moving large volumes of
loans through its platform and then placing the loans the Company
underwrites with banks or institutional credit investors, thereby
keeping loans off its balance sheet and largely insulating itself
from credit risk.
Throughout the Class Period, Defendants repeatedly stated that
Upstart's AI-based models could underwrite loans in a way that was
far superior to traditional underwriting processes and lead to the
origination of less risky credit. Upstart heralded the predictive
capabilities of its AI technology, which would purportedly allow it
to handle a recession "far better than a traditional system would,"
says the suit.
The Company also represented that it would fund a limited amount of
loans from its balance sheet only to support the research and
development of new loan products, and that it would maintain
limited exposure to credit risk. These and similar statements made
during the Class Period were false and misleading. In reality, the
Company's AI-based underwriting model was unable to adequately
assess credit risk in changing macroeconomic conditions, such as
rising interest rates and inflation, the suit added.
As a result, Upstart had been increasingly underwriting
progressively less creditworthy loans throughout the Class Period,
requiring the Company to fund a significant amount of loans from
its balance sheet to support loan transaction volume and stabilize
its business, and thereby exposing Upstart to significant credit
risk. As a result of Defendants' misrepresentations, Upstart
securities traded at artificially inflated prices throughout the
Class Period, the suit further asserts.
According to the complaint, the truth emerged after the market
closed on May 9, 2022, when the Company announced its financial
results for the first quarter of 2022. Specifically, Upstart
reported that it held approximately $604 million worth of loans,
notes, residuals on its balance sheet—more than double the $261
million it held at the end of the previous quarter. Upstart
acknowledged that the significant increase in the amount of loans
retained on its balance sheet was the result of rising "default
rates" on loans originated in the second half of 2021 as well as
"rising interest rates and rising consumer delinquencies putting
downward pressure on conversion." Further, Upstart revealed that,
while the Company had historically used its balance sheet "almost
exclusively" for the research and development of new loan products,
in the first quarter of 2022 Upstart used its balance sheet as "a
market-clearing mechanism" to support the Company's loan
transaction volume and stabilize its business, says the suit.
Upstart is an AI lending platform that partners with banks and
credit unions to provide consumer loans using non-traditional
variables, such as education and employment, to predict
creditworthiness.[BN]
The Plaintiff is represented by:
Edward M. Bearman, Esq.
JG LAW FIRM
780 Ridge Lake Blvd., No. 202
Memphis, TN 38120
Telephone: (901) 682-3450
E-mail: ebearman@jglawfirm.com
- and -
Todd M. Schneider, Esq.
Matthew S. Weiler, Esq.
Sunny S. Sarkis, Esq.
SCHNEIDER WALLACE
COTTRELL KONECKY LLP
2000 Powell Street, Suite 1400
Emeryville, CA 94608
Telephone: (415) 421-7100
E-mail: tschneider@schneiderwallace.com
mweiler@schneiderwallace.com
ssarkis@schneiderwallace.com
- and -
Christopher T Hellums, Esq.
Emily Irvin Curran, Esq.
PITTMAN, DUTTON, HELLUMS,
BRADLEY & MANN, P.C.
2001 Park Place North, No. 1100
Birmingham, AL 35203
Telephone: (205) 322-8880
E-mail: emily@pittmandutton.com
chrish@pittmandutton.com
VOLCANICA COFFEE: Mejia Files ADA Suit in S.D. New York
-------------------------------------------------------
A class action lawsuit has been filed against Volcanica Coffee
Enterprises LLC. The case is styled as Richard Mejia, individually
and on behalf of all others similarly situated v. Volcanica Coffee
Enterprises LLC, Case No. 1:22-cv-05793-JPC (S.D.N.Y., July 7,
2022).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Volcanica Coffee -- https://volcanicacoffee.com/ -- is a
family-owned business with all members involved in running the
specialty coffee brand and importing the highest quality beans
worldwide.[BN]
The Plaintiff is represented by:
Edward Y. Kroub, Esq.
MIZRAHI & KROUB LLP
200 Vesey Street, 24th Floor
New York, NY 10281
Phone: (212) 595-6200
Email: ekroub@mizrahikroub.com
WESTSIDE INVESTMENTS: Vaccaro Files TCPA Suit in C.D. California
----------------------------------------------------------------
A class action lawsuit has been filed against Westside Investments,
Inc., et al. The case is styled as Dave Vaccaro, individually and
on behalf of all others similarly situated v. Westside Investments,
Inc. doing business as: Marina Del Rey Toyota, Does 1-10,
Inclusive, Case No. 2:22-cv-04656 (C.D. Cal., July 7, 2022).
The lawsuit is brought over alleged violation of the Telephone
Consumer Protection Act for Restrictions of Use of Telephone
Equipment.
Westside Investment Management -- https://www.westsideim.com/ -- is
an independent investment management firm that provides Wealth
Consultation Services.[BN]
The Plaintiff is represented by:
Todd M. Friedman, Esq.
LAW OFFICES OF TODD M. FRIEDMAN PC
21031 Ventura Boulevard, Suite 340
Woodland Hills, CA 91364
Phone: (323) 306-4234
Fax: (866) 633-0228
Email: tfriedman@toddflaw.com
YUMA REGIONAL MEDICAL: Kircher Suit Removed to D. Arizona
---------------------------------------------------------
The case styled as Brian Kircher, individually and on behalf of all
others similarly situated v. Yuma Regional Medical Center, Unknown
Parties John and Jane Does I-X; ABC Corporations I-X; Def LLCs I-X;
and XYZ Partnerships I-X, Case No. S1400-CV-202200322 was removed
from the Yuma County Superior Court, to the U.S. District Court for
the District of Arizona on July 7, 2022.
The District Court Clerk assigned Case No. 2:22-cv-01142-DJH to the
proceeding.
The nature of suit is stated as Other Personal Injury for Breach of
Contract.
Yuma Regional Medical Center -- https://www.yumaregional.org/Home
-- is a hospital in Yuma, Arizona.[BN]
The Plaintiff is represented by:
Cristina Perez Hesano, Esq.
PEREZ LAW GROUP PLLC
7508 N 59th Ave.
Glendale, AZ 85301
Phone: (623) 826-5593
Email: cperez@perezlawgroup.com
- and -
Joseph M Lyon, Esq.
LYON FIRM
2754 Erie Avenue
Cincinnati, OH 45208
Phone: (513) 381-2333
Fax: (513) 721-1178
- and -
Terence R Coates, Esq.
MARKOVITS STOCK & DEMARCO LLC
3825 Edwards Rd., Ste. 650
Cincinnati, OH 45209
The Defendants are represented by:
Michelle Marie Buckley, Esq.
POLSINELLI PC - PHOENIX, AZ
1 E Washington St., Ste. 1200
Phoenix, AZ 85004
Phone: (602) 650-2000
Fax: (602) 264-7033
Email: mmbuckley@polsinelli.com
- and -
Paul Gregory Karlsgodt, Esq.
BAKER & HOSTETLER LLP - DENVER, CO
1801 California St., Ste. 4400
Denver, CO 80202
Phone: (303) 861-0600
Fax: (303) 861-7805
Email: pkarlsgodt@bakerlaw.com
*********
S U B S C R I P T I O N I N F O R M A T I O N
Class Action Reporter is a daily newsletter, co-published by
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USA, and Beard Group, Inc., Washington, D.C., USA. Rousel Elaine T.
Fernandez, Joy A. Agravante, Psyche A. Castillon, Julie Anne L.
Toledo, Christopher G. Patalinghug, and Peter A. Chapman, Editors.
Copyright 2022. All rights reserved. ISSN 1525-2272.
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