/raid1/www/Hosts/bankrupt/CAR_Public/220816.mbx
C L A S S A C T I O N R E P O R T E R
Tuesday, August 16, 2022, Vol. 24, No. 157
Headlines
3M COMPANY: Court Junks Securities Class Action
3M COMPANY: Faces Water Contamination Suit in Ohio Court
3M COMPANY: Faces Water Contamination Suit in South Carolina Court
3M COMPANY: Mediation in Water Contamination Suit Ongoing
3M COMPANY: Settlement Deal Entered in Class Suit
3M COMPANY: Settlement in Securities Suit Gets Final Approval
ABC APPLIANCE: Dicks Files ADA Suit in S.D. New York
ALFI INC: Directors Breach Fiduciary Duties, Farish Suit Alleges
ALLY BANK: Court Dismisses De Medicis Complaint Without Prejudice
AMAZON.COM: Fails to Provide Nursing Mothers' Mandated Break Time
BAILEY'S SUPER STORE: Tankersley Files FLSA Suit in E.D. Arkansas
BAJCO 100: Underpays Delivery Drivers, Hawn Class Action Suit Says
BANK OF MISSOURI: Hill Sues Over Misleading Collection Letters
BONNIE BRAE: Fails to Pay Employees' Proper OT Wages, Suit Alleges
BUTTERBLU LLC: Russi Sues Over Unsolicited Telephonic Sales Calls
CAPITAL ONE NA: Holmes Files Suit in N.D. New York
CARLOS ROSARIO: Fuentes Suit Seeks Unpaid OT Wages Under FLSA
CASA TUA CUCINA: Mayorga Seeks Unpaid Regular & OT Wages Under FLSA
CITIGROUP INC: Breaches Fiduciary Duties, Motz Securities Suit Says
D&A HOME: Jimenez Seeks Overtime Wages for Construction Workers
DEVON ENERGY: Cowan Files Suit in E.D. Oklahoma
DOWNEAST OUTFITTERS: Dicks Files ADA Suit in S.D. New York
EDGEWELL PERSONAL: California Court Narrows Claims in Moran Suit
ENOCHIAN BIOSCIENCES: Faces Manici Suit Over Share Price Drop
EPIC SPORTS: Montero Files TCPA Suit in S.D. Florida
EXPERIAN INFORMATION: Identity Verification Insufficient, Suit Says
FANDOM INC: Discloses Digital Users' Identities to Meta, Suit Says
FIRSTCREDIT INTERNATIONAL: Luna Sues Over Unfair Debt Collection
FREDDIE MAC: Faces Securities Suit
GERI-CARE PHARMA: Fails to Pay Medicine Packers' Wages, Junco Says
GKN DRIVELINE: Court Certifies Mebane's Automatic Deduction Class
GOLDELM AT CHARTER: Pagan Seeks Overtime Wages Under FLSA
GONZAGA UNIVERSITY: Website Not Accessible to Blind, Young Alleges
HAWAII: DOE Appeals Professional Fees Ruling in E.R.K. Suit
HOFSTRA UNIVERSITY: Stellato Appeals Order in Tuition Fee Suit
HOLLYWOOD MANAGEMENT: Suit Seeks Restaurant Staff's Proper Wages
HYUNDAI MOTOR: Faes Reis Class Suit Over Illegal Use of Child Labor
INSOMNIA COOKIES: Wilkins Files Suit in E.D. Pennsylvania
JAN-PRO FRANCHISING: Class of Franchisees Certified in Roman Suit
JAN-PRO FRANCHISING: Wins Bids for Summary Judgment in Roman Suit
JMCR SAFETY: Fails to Provide Proper Overtime Wages, Escobar Says
JOHNSON & JOHNSON: Deal in Remicade Antitrust Suit Wins Prelim. Nod
LINCARE HOLDINGS: Eichman Suit Removed to E.D. California
LINCARE HOLDINGS: Fails to Secure Patients' Info, Juarez Suit Says
LORDSTOWN CONSTRUCTION: Nagy Files Suit in N.D. Ohio
MARS INCORPORATED: Scruggs Files Suit in C.D. California
MCG HEALTH: Faces Taylor Class Suit Over Alleged Data Breach
MCG HEALTH: Fails to Protect Patients' Personal Info, Hensley Says
MCG HEALTH: Fails to Secure Patients' Personal Info, Taylor Says
MDL 2819: $30MM Class Deal in Restasis Antitrust Suit Gets Final OK
MEMBERS ONLY: Veitia Seeks OT Wages for Club Employees Under FLSA
MISSISSIPPI POWER: Faces Class Action in Mississippi
NEOGENIS LABS: Mag. Judge Recommends Dismissal of Sharifan Suit
NORTH MEMORIAL: Keller Sues for BOD for Breach of Fiduciary Duties
NWA PIZZA: Lawson Seeks Minimum & OT Wages for Delivery Drivers
OCWEN FINANCIAL: Court Decertifies Weiner's Class and Sub-Classes
PG&E CORP: Faces Consolidated Securities Suit
POPEYES LOUISIANA: Faces Suit Over Chicken Tenders' Deceptive Ads
PORTO ALEGRE: Pestana Seeks OT Wages for Restaurant Employees
PROFESSIONAL TRANSPORTATION: Dunner Seeks Damages Under FMLA, FLSA
PROGRESSIVE NORTHWESTERN: Knight Files Suit in E.D. Arkansas
PROTECTIVE ENTERPRISES: Mason Seeks Unpaid Regular Wages Under FLSA
QUOTEWIZARD.COM: Compels Microsoft to Respond to Subpoenas
RESURGENT CAPITAL: Faces Danford Suit Over Illegal Debt Collection
ROBOTIC HAIR: Dicks Files ADA Suit in S.D. New York
SEARS AUTHORIZED: Dicks Files ADA Suit in S.D. New York
SMART CARE: Larraga Seeks Unpaid Minimum & OT Wages Under FLSA
SOCLEAN INC: Clark Suit Transferred to W.D. Pennsylvania
SOCLEAN INC: Simms Suit Transferred to W.D. Pennsylvania
STANLEY BLACK: Breaches Fiduciary Duties, Kistler ERISA Suit Says
TEVA PHARMACEUTICALS: Halman Suit Stayed Pending DOJ Action Verdict
TRIAD PIZZA: Lester Sues Over Delivery Drivers' Unpaid Wages
UNCORKED UPSTAIRS: Fails to Pay Non-exempt Employees' OT, Suit Says
UPSTART HOLDINGS: Directors Breach Fiduciary Duties, Oconnor Says
WAL-MART ASSOCIATES: Fails to Pay Proper Wages, Yslas Suit Says
WEBER INC: Faces Michalski Securities Suit Over Stock Price Drop
WINTRUST FINANCIAL: Breaches Fiduciary Duties, Luckett Suit Says
*********
3M COMPANY: Court Junks Securities Class Action
-----------------------------------------------
3M Company disclosed in its Form 10-Q Report for the quarterly
period ended June 30, 2022, filed with the Securities and Exchange
Commission on July 27, 2022, that the company and a certain of its
officers were named defendant in a class action lawsuit alleging
violations of the Securities Exchange Act of 1934 and SEC Rule
10b-5. The defendants filed a motion to dismiss the action in
January 2021, and in September 2021, the Minnesota federal court
granted 3M's motion to dismiss the securities class action, which
judgment is now final.
In July 2019, Heavy & General Laborers' Locals 472 & 172 Welfare
Fund filed a putative securities class action against 3M Company,
its former Chairman and CEO, current Chairman and CEO, and former
CFO in the U.S. District Court for the District of New Jersey.
In August 2019, an individual plaintiff filed a similar putative
securities class action in the same district. Plaintiffs allege
that defendants made false and misleading statements regarding 3M's
exposure to liability associated with PFAS and bring claims for
damages under Section 10(b) of the Securities Exchange Act of 1934
and SEC Rule 10b-5 against all defendants, and under Section 20(a)
of the Securities and Exchange Act of 1934 against the individual
defendants.
In October 2019, the court consolidated the securities class
actions and appointed a group of lead plaintiffs. In January 2020,
the defendants filed a motion to transfer venue to the U.S.
District Court for the District of Minnesota.
In August 2020, the court denied the motion to transfer venue, and
in September 2020, the defendants filed a petition for writ of
mandamus to the U.S. Court of Appeals for the Third Circuit.
In November 2020, the federal Court of Appeals granted 3M's
petition for a writ of mandamus and directed the New Jersey federal
court to transfer the action to the Minnesota federal court.
3M Company is a technology company based in Minnesota.
3M COMPANY: Faces Water Contamination Suit in Ohio Court
--------------------------------------------------------
3M Company disclosed in its Form 10-Q Report for the quarterly
period ended June 30, 2022, filed with the Securities and Exchange
Commission on July 27, 2022, that a class action lawsuit was filed
against the company alleging an exposure to per-and polyfluoroalkyl
substances (PFAS) chemicals
In October 2018, 3M and other defendants, including DuPont and
Chemours, were named in a putative class action in the U.S.
District Court for the Southern District of Ohio brought by the
named plaintiff, a firefighter allegedly exposed to per-and
polyfluoroalkyl substances (PFAS) chemicals through his use of
firefighting foam, purporting to represent a putative class of all
U.S. individuals with detectable levels of PFAS in their blood.
The plaintiff brings claims for negligence, battery, and conspiracy
and seeks injunctive relief, including an order "establishing an
independent panel of scientists" to evaluate PFAS. 3M and other
entities jointly filed a motion to dismiss in February 2019. In
September 2019, the court denied the defendants' motion to dismiss.
In February 2020, the court denied 3M's motion to transfer the case
to the AFFF MDL. In March 2022, the court certified a class of
"[i]ndividuals subject to the laws of Ohio, who have 0.05 [ppt] of
PFOA (C-8) and at least 0.05 ppt of any other PFAS in their blood
serum."
The judge ordered additional briefing to permit defendants to
narrow the proposed nationwide class by "show[ing] what states do
not recognize the type of claim for relief filed by" the plaintiff.
The defendants have filed a petition for permission to file an
interlocutory appeal of the certification order with the Sixth
Circuit Court of Appeals.
3M Company is a technology company based in Minnesota.
3M COMPANY: Faces Water Contamination Suit in South Carolina Court
------------------------------------------------------------------
3M Company disclosed in its Form 10-Q Report for the quarterly
period ended June 30, 2022, filed with the Securities and Exchange
Commission on July 27, 2022, that in South Carolina, a putative
class action lawsuit was filed in South Carolina state court
against 3M, DuPont and DuPont related entities in March 2022.
The lawsuit alleges property damage and personal injuries from
contamination from per-and polyfluoroalkyl substances (PFAS)
compounds used and disposed of at the textile plant known as the
Galey & Lord plant from 1966 until 2016. The complaint seeks
remedies including damages, punitive damages, and medical
monitoring. The case has been removed to federal court.
3M Company is a technology company based in Minnesota.
3M COMPANY: Mediation in Water Contamination Suit Ongoing
---------------------------------------------------------
3M Company disclosed in its Form 10-Q Report for the quarterly
period ended June 30, 2022, filed with the Securities and Exchange
Commission on July 27, 2022, that the parties in the class action
have engaged in productive mediation sessions and a trial date has
been set for August 2022.
In Michigan, one consolidated putative class action is pending in
the U.S. District Court for the Western District of Michigan
against 3M and Wolverine World Wide. The action arises from
Wolverine's allegedly improper disposal of materials and wastes,
including 3M Scotchgard, related to Wolverine's shoe manufacturing
operations.
Plaintiffs allege Wolverine used 3M Scotchgard in its manufacturing
process and that chemicals from 3M's product contaminated the
environment and drinking water sources after disposal. In June
2021, the court partially denied the defendants' motions to
dismiss, by granting the motions to dismiss the negligence claim
only insofar as the plaintiffs seek damages for personal injuries,
as opposed to property damage.
In September 2021, the plaintiffs filed a motion to amend the
complaint, including to add four new named plaintiffs and putative
class representatives. 3M and Wolverine filed a motion to strike
the plaintiffs' motion for class certification and opposed
plaintiffs' motion to amend the complaint.
The parties also filed several dispositive and expert
witness-related Daubert motions in November 2021, and the parties
have engaged in productive mediation sessions. The court has set a
trial date in August 2022.
3M Company is a technology company based in Minnesota.
3M COMPANY: Settlement Deal Entered in Class Suit
-------------------------------------------------
3M Company disclosed in its Form 10-Q Report for the quarterly
period ended June 30, 2022, filed with the Securities and Exchange
Commission on July 27, 2022, that a class action settlement
agreement has been entered and resolved a class action in March
2022.
In August 2016, a group of over 200 plaintiffs filed a putative
class action against West Morgan-East Lawrence Water and Sewer
Authority (Water Authority), 3M, Dyneon, Daikin, BFI, and the City
of Decatur in state court in Lawrence County, Alabama (the Billings
case). Plaintiffs were residents of Lawrence, Morgan and other
counties who are or have been customers of the Water Authority.
They contended defendants had released PFAS that contaminated the
Tennessee River and, in turn, their drinking water, causing damage
to their health and properties. In January 2017, the court in the
St. John case, discussed above, stayed this litigation pending
resolution of the St. John case. Plaintiffs in the Billings case
have amended their complaint numerous times to add additional
plaintiffs. There were approximately 4,900 named plaintiffs. The
parties entered into a settlement agreement and resolved the
litigation in March 2022.
3M Company is a technology company based in Minnesota.
3M COMPANY: Settlement in Securities Suit Gets Final Approval
-------------------------------------------------------------
3M Company disclosed in its Form 10-Q Report for the quarterly
period ended June 30, 2022, filed with the Securities and Exchange
Commission on July 27, 2022, that a class settlement has been
finally approved by the court and the class action has been
dismissed in June 2022.
A former employee filed a putative class action lawsuit against 3M,
BFI Waste Management Systems of Alabama, and others in the Circuit
Court of Morgan County, Alabama (the St. John case), seeking
property damage from exposure to certain perfluorochemicals at or
near the Company's Decatur, Alabama, manufacturing facility.
The parties have agreed to repeated stays of the St. John case, to
permit ongoing mediation between the parties involved in this case
and another case. Two additional putative class actions filed in
the same court by certain residents in the vicinity of the Decatur
plant seeking relief on similar grounds (the Chandler case and the
Stover case, respectively) are stayed pending the resolution of
class certification issues in the St. John case.
In June 2016, the Tennessee Riverkeeper, Inc. (Riverkeeper), a
non-profit corporation, filed a lawsuit in the U.S. District Court
for the Northern District of Alabama against 3M; BFI Waste Systems
of Alabama; the City of Decatur, Alabama; and the Municipal
Utilities Board of Decatur, Morgan County, Alabama. The complaint
alleges that the defendants violated the Resource Conservation and
Recovery Act in connection with the disposal of certain
perfluoroalkyl and polyfluoroalkyl substances (PFAS) compounds
through their ownership and operation of their respective sites.
The complaint further alleges such practices may present an
imminent and substantial endangerment to health and/or the
environment and that Riverkeeper has suffered and will continue to
suffer irreparable harm caused by defendants' failure to abate the
endangerment unless the court grants the requested relief,
including declaratory and injunctive relief. This case was also
stayed pending ongoing mediation and discussions between the
parties in conjunction with the St. John case.
In October 2021, 3M reached agreements in principle to resolve
litigation with the Tennessee Riverkeeper organization, as well as
the plaintiffs in the St. John (including Stover, Owens and
Chandler) matters. The agreements, if finalized and approved by the
court, will complement the Interim Consent Order that 3M entered
with the Alabama Department of Environmental Management (ADEM) in
2020, as described below. Key provisions of these agreements
include 3M's continued environmental characterization, including
sampling of environmental media, such as soil, ground water, and
sediment, regarding the potential presence of perfluoroalkyl and
polyfluoroalkyl substances (PFAS) at the 3M Decatur facility and
legacy disposal sites, as well as supporting the execution of
appropriate remedial actions.
In December 2021, the court in the St. John action granted
preliminary approval of the class settlement, and in April 2022,
the court granted the final approval of the class settlement. In
June 2022, the court dismissed the Tennessee Riverkeeper case with
prejudice.
3M Company is a technology company based in Minnesota.
ABC APPLIANCE: Dicks Files ADA Suit in S.D. New York
----------------------------------------------------
A class action lawsuit has been filed against ABC Appliance, Inc.
The case is styled as Victoria Dicks, on behalf of herself and all
others similarly situated v. ABC Appliance, Inc., Case No.
1:22-cv-06636 (S.D.N.Y., Aug. 4, 2022).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
ABC Warehouse, Inc. or ABC Appliance, Inc. --
https://www.abcwarehouse.com/ -- is a chain of retail appliance and
electronics stores based in Pontiac, Michigan.[BN]
The Plaintiff is represented by:
Mars Khaimov, Esq.
10826 64th Avenue, Ste. 2nd Floor
Forest Hills, NY 11375
Phone: (917) 915-7415
Email: mars@khaimovlaw.com
ALFI INC: Directors Breach Fiduciary Duties, Farish Suit Alleges
----------------------------------------------------------------
VICTOR FARISH, Derivatively on Behalf of Nominal Defendant ALFI,
INC. v. PAUL PEREIRA, DENNIS MCINTOSH, CHARLES PEREIRA, PETER
BORDES, M. COOK, II, JUSTIN ELKOURI, ALLISON FICKEN, JIM LEE,
RICHARD MOWSER, and FRANK SMITH, the Defendants, and ALFI, INC.,
Nominal Defendant seeks to remedy the Individual Defendants'
breaches of fiduciary duties and violations of federal law.
This shareholder derivative action is brought on behalf of Alfi
against the Individual Defendant for breaching their fiduciary
duties by making and/or authorizing false and misleading statements
and material omissions regarding the Alfi's business, prospects,
and internal controls.
The Company was founded by Defendants P. Pereira, C. Pereira, and
Cook in 2018. On January 8, 2021, the Company filed its
registration statement on Form S-1 with the SEC, which was
subsequently amended seven times and declared effective on May 3,
2021. On May 5, 2021, the Company filed a prospectus on Form 424B4,
which formed a part of the Registration Statement. Alfi's initial
public offering ("IPO") was completed on May 6, 2021.
In connection with the Company's May 6, 2021 IPO, Alfi sold 4.3
shares of common stock and 4.3 warrants for aggregate gross
proceeds of approximately $17.8 million before deducting
underwriting commissions, discounts, and offering expenses.
The Individual Defendants made and/or permitted others to make
materially false and misleading statements in the Offering
Documents and in subsequent statements concerning the Company's
business, prospects, and regulatory standing, the suit says.
The full truth emerged on November 15, 2021 after the Company
disclosed it had received a document preservation request from the
SEC related to an "ongoing [SEC] investigation." On this news, the
price per share of the Company's stock declined $0.24 to close
at $4.37 per share on November 16, 2021, a loss of 5%, alleges the
suit.
Alfi is an advertising-analytics solutions company that operates in
the DOOH marketplace. Using artificial intelligence and data
analytics, among other things, the Company's technology makes
sociological determinations as to individual consumers, and
delivers targeted advertisements to match the identified
demographic information. The Individual Defendants are directors of
the company.[BN]
The Plaintiff is represented by:
Cullin O'Brien, Esq.
CULLIN O'BRIEN LAW, P.A.
6541 NE 21st Way
Fort Lauderdale, FL 33308
Telephone: (561) 676-6370
Facsimile: (561) 320-0285
E-mail: cullin@cullinobrienlaw.com
- and -
Seth D. Rigrodsky, Esq.
Timothy J. MacFall, Esq.
Gina M. Serra, Esq.
Vincent A. Licata, Esq.
RIGRODSKY LAW, P.A.
825 East Gate Boulevard, Suite 300
Garden City, NY 11530
Telephone: (516) 683-3516
E-mail: sdr@rl-legal.com
tjm@rl-legal.com
gms@rl-legal.com
vl@rl-legal.com
ALLY BANK: Court Dismisses De Medicis Complaint Without Prejudice
-----------------------------------------------------------------
In the case, DAVID DE MEDICIS, on behalf of himself and all others
similarly situated, Plaintiff v. ALLY BANK and ALLY FINANCIAL,
INC., Defendants, Case No. 21 Civ. 6799 (NSR) (S.D.N.Y.), Judge
Nelson S. Roman of the U.S. District Court for the Southern
District of New York grants, without prejudice, the Defendants'
motion to dismiss.
The Defendants moved to dismiss the Plaintiff's Complaint under
Federal Rules of Civil Procedure 12(b)(1) and (6).
The putative class action alleges that the Defendants negligently
disclosed their customers' account usernames, passwords, and other
private information to unnamed third parties through a coding error
in their website portal. De Medicis, on behalf of himself and on
all others similarly situated, brings this action against
Defendants asserting claims for negligence, negligence per se,
breach of implied contract, violations of the Virginia Personal
Information Breach Notification Act, and injunctive/declaratory
relief under the Declaratory Judgment Act.
The Plaintiff, a Virginia resident, maintains checking, savings,
and securities accounts with the Defendants, which are a digital
financial-services company and its wholly-owned subsidiary.
On April 12, 2021, during a routine website update, the Defendants
learned of the Coding Error, which affected certain query strings
that transmit information after a customer entered a username and
password to access an online account with them. The Coding Error,
however, resulted in certain query strings that contained usernames
and passwords (embedded within the string of code) being sent to a
limited group of known entities with which Defendants have ongoing
contractual and business relationships.
The Coding Error only occurred in limited circumstances where the
user attempted to log in before the page had fully loaded—that
is, when the user was using software to automatically populate the
username and password. Notably, it did not result from a
sophisticated attack perpetrated by cyber criminals or state
sponsored hackers.
Immediately upon learning of the Coding Error, the Defendants
updated the affected code to eliminate the error. They also
implemented a process that required all potentially affected
customers -- whether or not they were actually affected -- to
change their password. They also began working with the businesses
to which the query strings may have been visible to purge the
information. They represent that all of these entities agreed to
delete the information, and all subsequently confirmed deletion.
The Defendants also immediately began investigating which
customers' usernames and passwords may have been embedded in the
query strings due to the Coding Error. They also began
fraud-monitoring efforts to assess threats or risks of fraud
specific to the Coding Error, including monitoring the accounts of
potentially affected customers for fraudulent, suspicious, or
anomalous activity.
On June 11, 2021, the Defendants sent a letter to those customers
whose information had been embedded in the query strings as a
result of the Coding Error. The letter explained the circumstances
of the Coding Error and the remedial steps that they took after
discovering it, including (1) updating the code; (2) requiring
customers to reset their passwords; (3) confirming that all third
parties would delete the information; and (4) monitoring customers'
accounts. By their letter, the Defendants also offered all affected
customers with free credit monitoring and identity theft insurance
coverage for two years.
The Defendants further represent that, since discovering the Coding
Error on April 12, 2021, their internal cyber risk and fraud teams
have monitored the accounts of affected customers for any increase
in potential fraudulent or other anomalous activity. They represent
to have identified no instances of account takeovers, identity
theft, or similar occurrences attributable to the Coding Error.
Additionally, they represent that they have not identified any
increased rates of potentially fraudulent activity or other
anomalous events attributable to the Coding Error.
Nonetheless, the Plaintiff claims to have suffered "imminent and
impending injury arising from the substantially increased risk of
future fraud, identity theft, and misuse" as a result of Defendants
negligently disclosing his private information through the Coding
Error. He alleges that he has been "compelled to devote time to
deal with the consequences" of the Coding Error. He also claims to
have suffered "actual injury in the form of damages to and
diminution in the value of his Private Information -- a form of
intangible property" that he entrusted to Defendants for purposes
of facilitating his accounts with them.
On Aug. 13, 2021, the Plaintiff filed his operative class action
Complaint. On Sept. 17, 2021, the Defendants filed a letter seeking
leave to file a motion to dismiss, which the Court subsequently
granted and for which it set a briefing schedule. On Dec. 9, 2021,
the parties filed their respective briefing on the instant motion:
The Defendants their notice of motion, memorandum in support,
declaration with supporting exhibits, and supplementary
declaration; and the Plaintiff his response in opposition and
declaration with supporting exhibits.
The Plaintiff asserts claims against the Defendants for (1)
negligence, (2) negligence per se, (3) breach of implied contract,
(4) violations of the Virginia Personal Information Breach
Notification Act, and (5) injunctive/declaratory relief under the
Declaratory Judgment Act. The Defendants seek to dismiss the
Plaintiff's Complaint for lack of standing -- that is, for his
failure to allege an injury in fact -- and in the alternative, for
failure to state a claim.
Accordingly, Judge Nelson first addresses the Defendants' challenge
to subject matter jurisdiction and only analyzes their remaining
arguments if the Court has subject matter jurisdiction.
Judge Nelson holds that the Plaintiff fails to establish that he
suffered a concrete, particularized present injury in fact. His
assertions in his declaration still fail to allege a plausible link
between the Coding Error and these alleged attempts. For one, his
assertions relating to his email account, like his relevant
insufficient allegation in the Complaint, at best only establish an
alleged implied temporal connection between the Coding Error and
the multiple login attempts from other countries: That the
unsuccessful attempts occurred about six months after the Coding
Error.
And moreover, by the rest of his assertions in his declaration, the
Plaintiff inappropriately seems to "shore up a deficient complaint
through extrinsic documents submitted in opposition to a
defendant's motion to dismiss." That is because nowhere in his
Complaint does the Plaintiff allege that there were other attempts
to access any of his other online accounts besides those attempts
he alleged with respect to his email account.
And even if the Court were to consider the Plaintiff's new
allegations in his declaration, such allegations still fail. First,
the Plaintiff's allegations related to his FanDuel account suffer
from the same deficiencies from which the allegations related to
his email account suffer (i.e., failing to establish a plausible
causal connection). Second, as the Defendants' supplementary
declaration shows, the email notification the Plaintiff received of
an attempted access to his online account with them resulted from
failed log-in attempts by financial aggregators that he himself
uses to link his other online accounts to the one he has with them.
And third, as the Defendants' supplementary declaration also shows,
the Plaintiff temporarily lost access to his online account with
them after he commenced the instant action because they instituted
a legal preservation hold that is intended to prevent any record
purges for purposes of litigation -- and not because of "hackers"
attempting to login into his account.
With respect to an alleged substantial risk of future injury, the
Defendants argue that the Plaintiff's allegations about future
injury fail as a matter of law under Second Circuit precedent
because (i) the Coding Error was inadvertent and not the result of
a targeted attack; (ii) the transmitted information has not been
misused; and (iii) the transmitted information was neither
sensitive nor high risk.
Judge Nelson agrees. He says, the Plaintiff fails to present
evidence or make any allegations that an unauthorized third party
purposefully obtained his data. Even when drawing all inferences in
his favor, nowhere in the Complaint does the Plaintiff allege that
the Coding Error resulted in any actual misuses of his username and
password. And finally, the Plaintiff's username and password
appears to be less sensitive information "that can be rendered
useless to cybercriminals and does not pose the same risk of future
identity theft or fraud to him if exposed.
The Plaintiff fails to plausibly allege a substantial risk of
future injury resulting from the Coding Error. And consequently, in
the absence of a substantial risk of future injury, his allegations
about the "time spent" monitoring his accounts, "exploring credit
monitoring and identity theft protection," and changing his
passwords and usernames on various online accounts, cannot
constitute a present injury in fact.
Therefore, Judge Nelson concludes that the Plaintiff fails to
establish the injury requirement for Article III standing, and
accordingly dismisses the Plaintiff's Complaint without prejudice.
The Clerk of the Court is directed to terminate the motion at ECF
No. 18 and the action.
A full-text copy of the Court's Aug. 2, 2022 Opinion & Order is
available at https://tinyurl.com/m2w4hd6r from Leagle.com.
AMAZON.COM: Fails to Provide Nursing Mothers' Mandated Break Time
-----------------------------------------------------------------
FERNANDA TORRES, individually and on behalf of other individuals
similarly situated v. AMAZON.COM SERVICES, LLC, a Delaware
corporation; AMAZON.COM, INC., a Delaware Corporation, Case No.
5:22-cv-01326 (C.D. Cal., July 28, 2022) challenges Amazon's
systemic failure to provide State and Federally mandated
accommodations to postpartum female employees who have returned to
work but must pump breastmilk in order to bottle feed their
babies.
According to the complaint, Amazon is one of the largest companies
in the world, and though it undoubtedly has the resources to comply
with such regulations, it chooses instead to blatantly flout these
rules.
The Defendants illegal and widespread conduct has led to direct
harm to the class of mothers working for them. The Defendants'
policies have been willfully implemented to harm women who breast
feed their infants, resulting in lost wages, discriminatory
policies, and violations of the California Labor Code along with
the Fair Labor Standards Act, the lawsuit says.[BN]
The Plaintiff is represented by:
Marcus J. Bradley, Esq.
Kiley L. Grombacher, Esq.
Lirit A. King, Esq.
BRADLEY/GROMBACHER, LLP
31365 Oak Crest Drive, Suite 240
Westlake Village, CA 91361
Telephone: (805) 270-7100
Facsimile: (805) 270-7589
E-Mail: mbradley@bradleygrombacher.com
kgrombacher@bradleygrombacher.com
lking@bradleygrombacher.com
BAILEY'S SUPER STORE: Tankersley Files FLSA Suit in E.D. Arkansas
-----------------------------------------------------------------
A class action lawsuit has been filed against Bailey's Super Store
Inc., et al. The case is styled as Destany Tankersley, Brandon
Hill, Amanda Pinckard, individually and on behalf of all others
similarly situated v. Bailey's Super Store Inc., Dennis Bailey,
Case No. 4:22-cv-00696-BSM (E.D. Ark., Aug. 4, 2022).
The lawsuit is brought over alleged violation of the Fair Labor
Standards Act for Denial of Overtime Compensation.
Bailey's Super Store, Inc. operates as a restaurant.[BN]
The Plaintiffs are represented by:
Christopher Wesley Burks, Esq.
Stewart Alexander Whaley, Esq.
WH LAW
1 Riverfront Place, Suite 745
North Little Rock, AR 72114
Phone: (501) 891-6000
Email: chris@whlawoffices.com
stewart@whlawoffices.com
BAJCO 100: Underpays Delivery Drivers, Hawn Class Action Suit Says
------------------------------------------------------------------
Teresa Hawn; Nichole Hawn; and Dewitt Slade On behalf of themselves
and those similarly situated v. Bajco 100, LLC, et al., Case No.
4:22-cv-01337 (N.D. Ohio, July 28, 2022) seeks appropriate
monetary, declaratory, and equitable relief based on the
Defendants' willful failure to compensate Plaintiffs and
similarly-situated individuals with minimum wages as required by
the Fair Labor Standards Act, the Illinois Minimum Wage Law, and
the Illinois Wage Payment and Collection Act, and unjust
enrichment.
The Defendants own and operate approximately 125 Papa John's Pizza
locations in the United States. The Defendants repeatedly and
willfully violated the FLSA, the IMWL, the IWPCA, and the Florida
Constitution, by failing to adequately reimburse delivery drivers
for their delivery-related expenses, thereby failing to pay
delivery drivers the legally mandated minimum wage for all hours
worked, says the suit.
All delivery drivers at the Defendants' Papa John's stores,
including Plaintiffs, have been subject to the same employment
policies and practices, including policies and practices with
respect to wages and reimbursement for expenses, the suit alleges.
The Defendants include Bajco Arizona, LLC; Bajco Central, LLC;
Bajco Florida, LLC; Bajco Global Management, LLC ; Bajco Global
Management II, LLC; Bajco Gulf, LLC; Bajco Illinois, LLC; Bajco
International Holdings, Inc.; Bajco International Investments, LLC;
Bajco International, LLC; Bajco Michiana, LLC; Bajco Michiana II ,
LLC; Bajco Michiana III, LLC; Bajco Michiana IV, LLC; Bajco
Michiana V, LLC; Bajco New York, LLC; Bajco North, LLC Bajco Ohio,
LLC; Bajco Ontario, Inc.; Bajco Real Venture II, LLC; Bajco Real
Venture III, LLC; Bajco Restaurant Holdings, LLC; Bajco Venture
Funding II, LLC; Bajco Venture Funding, LLC; Bajco Williamsport,
LLC; Bajco Wisconsin, LLC; Bajco, LLC; Nadeem Bajwa; and Faisal
Bajwa; John Doe 1-10; and Doe Corporation 1-10.[BN]
The Plaintiff is represented by:
Samuel Elswick, Jr., Esq.
Andrew R. Biller, Esq.
Andrew P. Kimble, Esq.
Samuel D. Elswick, Jr., Esq.
Biller & Kimble, LLC
www.billerkimble.com
8044 Montgomery Road, Suite 515
Cincinnati, OH 45236
Telephone: (513) 202-0710
Facsimile: (614) 340-4620
E-mail: abiller@billerkimble.com
akimble@billerkimble.com
selswick@billerkimble.com
BANK OF MISSOURI: Hill Sues Over Misleading Collection Letters
--------------------------------------------------------------
ANDREW HILL, individually and on behalf of all others similarly
situated, Plaintiff v. THE BANK OF MISSOURI and GENESIS FS CARD
SERVICES, INC., Defendants, Case No. 37-2022-00030529-CU-NP-CTL
(Cal. Sup. Ct., August 2, 2022) brings this class action complaint
to recover damages from the Defendant's alleged unfair or deceptive
collection practices that violated the Rosenthal Fair Debt
Collection Practices Act.
The Plaintiff allegedly incurred some financial obligations owed to
the Defendants sometime prior to April 26, 2022.
Consequently, on Aril 26, 2022, the Plaintiff received an email
from Defendant Genesis advertising that he has been selected to
have his debt reduced by 75% off his total balance of $894.33, but
he has to pay $670 to settle his account in full. The Defendants
allegedly provides contradictory statements by offering a reduction
of 75% of the debt, but then only provides a number that is 25%
discount. The Plaintiff asserts that the Defendants' communication
was misleading and confusing.
According to the complaint, the Defendants have violated 15 U.S.C.
Sections 1692e and 1692e(10) by using deceptive means to collect or
attempt to collect ay debt or to obtain information concerning a
consumer.
As a result of the Defendants' unlawful debt collection practices,
the Plaintiff has suffered emotional and mental damages. Thus, on
behalf of himself and on behalf of the Class, the Plaintiff seeks
an injunction requiring the Defendants to cease all misleading
emails. The Plaintiff also seeks an award of actual and statutory
damages, attorneys' fees and costs, and other relief as the Court
deems necessary, says the suit.
The Bank of Missouri and Genesis FS Card Services, Inc. are debt
collectors. Genesis is a financial lender. [BN]
The Plaintiff is represented by:
Ryan L. McBride, Esq.
KAZEROUNI LAW GROUP, APC
4455 E. Camelback Road, Suite C250
Phoenix, AZ 85018
Tel: (800) 400-6808
Fax: (800) 520-5523
E-mail: ryan@kazlg.com
- and –
Patric A. Lester, Esq.
CONSUMER ATTORNEY ADVOCATES INC.
5694 Mission Center Road #358
San Diego, CA 92108
Tel: (619) 655-3888
Fax: (314) 241-5777
E-mail: pl@lesterlaw.com
BONNIE BRAE: Fails to Pay Employees' Proper OT Wages, Suit Alleges
------------------------------------------------------------------
JULIO L. PLASCENCIA, as an aggrieved employee, and on behalf of all
other aggrieved under the Labor Code Private Attorneys' General Act
of 2004 v. BONNIE BRAE CONVALESCENT HOSPITAL, INC., a California
corporation; BONNIE BRAE CONVALESCENT INC, a California
corporation; MICHELLE CAYTON, an individual; and DOES 1 through
100, inclusive, Case No. 22STCV24428 (Cal Super., Los Angeles Cty.,
July 28, 2022) is a representative action, pursuant to the Labor
Code Private Attorneys General Act of 2004 against the Defendants,
on behalf of Plaintiff and all other current and former non-exempt
employees of Defendants working within the Civil Penalty Period.
According to the complaint, the Defendants had and have a policy or
practice failing to pay overtime wages to the Plaintiff and other
Aggrieved Employees in the State of California in violation of
California state wage and hour laws as a result of, without
limitation.
The Plaintiff and other Aggrieved Employees working over eight
hours per day, 40 hours per two week, and/or seven straight
workdays in a workweek without paying them proper overtime wages.
Bonnie Brae is a nursing facility offering the best therapy and
care in Los Angeles, California.[BN]
The Plaintiff is represented by:
David D. Bibiyan, Esq.
Jeffrey D. Klein, Esq.
BIBIYAN LAW GROUP, P.C.
8484 Wilshire Boulevard, Suite 500
Beverly Hills, CA 90211
Telephone: (310) 438-5555
Facsimile: (310) 300-1705
E-mail: david@tomorrawlaw.com
jeff@tomorrowlaw.com
BUTTERBLU LLC: Russi Sues Over Unsolicited Telephonic Sales Calls
-----------------------------------------------------------------
The case, PAULA RUSSI, individually and on behalf of all others
similarly situated, Plaintiff v. BUTTERBLU, LLC, Defendant, Case
No. 154485794 (Fla. 17th Jud. Cir. Ct., August 2, 2022) arises from
the Defendant's alleged violations of the Florida Telephone
Solicitation Act.
According to the complaint, the Defendant engages in telephonic
sales calls to consumers to promote its goods and services despite
failing to obtain the called party's prior express written consent
as required by the FTSA. The Plaintiff asserts that he received a
telephonic sales call from the Defendant to his telephone number on
or after July 1, 2021 without his prior express consent to receive
such calls. The Defendant's telephonic sales calls allegedly
involved an automated system for the selection of dialing of
telephone numbers or the playing of a recorded message when a
connection is completed, the suit says.
As a result of the Defendant's unsolicited telephonic sales calls,
the Plaintiff and other similarly situated consumers were
aggrieved. Thus, on behalf of them, the Plaintiff brings this
complaint as a class action against the Defendant seeking an award
of statutory damages, and an injunction requiring the Defendant to
cease all telephonic sales calls made without express written
consent, as well as reasonable attorney's fees and court costs, and
other relief as the Court deems necessary, alleges the suit.
Butterblu, LLC offers Rainbow baby clothings. [BN]
The Plaintiff is represented by:
Benjamin W. Raslavich, Esq.
KUHN RASLAVICH, P.A.
2110 West Platt Street
Tampa, FL 33606
Tel: (813) 422-7782
Fax: (813) 422-7783
E-mail: ben@theKRfirm.com
CAPITAL ONE NA: Holmes Files Suit in N.D. New York
--------------------------------------------------
A class action lawsuit has been filed against Capital One, N.A. The
case is styled as Christina Holmes, individually, and on behalf of
all others similarly situated v. Capital One, N.A., Case No.
3:22-cv-00823-GTS-ML (N.D.N.Y., Aug. 4, 2022).
The nature of suit is stated as Other Contract.
Capital One Bank (USA), National Association --
https://www.capitalone.com/ -- operates as a bank.[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@shamisgentile.com
- and -
Jeffrey D. Kaliel, Esq.
KALIEL GOLD PLLC
1100 15th Street NW-4th Floor
Washington, DC 20005
Phone: (202) 615-3948
Email: jkaliel@kalielpllc.com
- and -
Sophia Goren Gold, Esq.
KALIEL GOLD PLLC
950 Gilman Street-Suite 200
Berkeley, CA 94710
Phone: (202) 350-4783
Email: sgold@kalielgold.com
CARLOS ROSARIO: Fuentes Suit Seeks Unpaid OT Wages Under FLSA
-------------------------------------------------------------
IRMA T. FUENTES and other similarly situated individuals v. CARLOS
ROSARIO CLEANING, CORP. d/b/a ROSARIO CLEANING SERVICES 1, and
CARLOS ROSARIO, individually, Case No. 1:22-cv-22404 (S.D. Fla.,
July 29, 2022) seeks to recover money damages for unpaid half-time
overtime wages and retaliation under the Fair Labor Standards Act.
The Plaintiff worked under the supervision of the owner of the
business Carlos Rosario and supervisor Carel Rosario. The
Defendants provided Plaintiff with equipment and materials to
perform her work. While employed by Defendants, Plaintiff worked
more than 40 hours every week, but she was not paid overtime hours
as required by law, the lawsuit says.
The Plaintiff is a resident of Miami-Dade County, Florida.
Corporate Defendant is a janitorial company providing cleaning
services to commercial accounts.[BN]
The Plaintiff is represented by:
Zandro E. Palma, Esq.
9100 S. Dadeland Blvd., Suite 1500
Miami, FL 33156
Telephone: (305) 446-1500
Facsimile: (305) 446-1502
E-mail: zep@thepalmalawgroup.com
CASA TUA CUCINA: Mayorga Seeks Unpaid Regular & OT Wages Under FLSA
-------------------------------------------------------------------
JAVIER B. MAYORGA,and other similarly situated individuals v. CASA
TUA CUCINA (MIAMI) ASSOCIATES LLC, and JAZ DEPOT SUPPLIES, INC.,
Case No. 1:22-cv-22403 (S.D. Fla., July 29, 2022) is an action to
recover money damages for unpaid regular and overtime wages and
retaliation under the Fair Labor Standards Act.
The Plaintiff contends that he and all other current and former
employees similarly situated worked in excess of 40 hours during
the material time.
The Plaintiff is a resident of Miami-Dade County, Florida.
The Defendants are the employers of the Plaintiff and other
similarly situated employees under the FLSA's broad definition of
"employer" (29 U.S.C. section 203 (d)), and they are jointly liable
for Plaintiff's damages, the lawsuit says.[BN]
The Plaintiff is represented by:
Zandro E. Palma, Esq.
ZANDRO E. PALMA, P.A.
9100 S. Dadeland Blvd., Suite 1500
Miami, FL 33156
Telephone: (305) 446-1500
Facsimile: (305) 446-1502
E-mail: zep@thepalmalawgroup.com
CITIGROUP INC: Breaches Fiduciary Duties, Motz Securities Suit Says
-------------------------------------------------------------------
JULIETTE MOTZ and VIVEK SHAH, individually and as representatives
of a of similarly situated persons, on behalf of the CITI
RETIREMENT SAVINGS PLAN v. CITIGROUP INC.; THE BOARD OF TRUSTEES OF
CITIGROUP INC.; THE COMMITTEE OF THE CITI RETIREMENT SAVINGS PLAN;
and No. 1-20, Whose Names Are Currently Unknown, Case No.
3:22-cv-00965 (D. Conn., July 29, 2022) is a class action suit
against the Defendants for breach of fiduciary duties under the
Employee Retirement Income Security Act.
The defined contribution plans (e.g., 401(k) and 401(a) plans) that
are qualified as tax-deferred vehicles have become the primary form
of retirement saving in the United States and, as a result,
America's de facto retirement system. Unlike traditional defined
benefit retirement plans, in which the employer typically promises
a calculable benefit and assumes the risk with respect to high fees
or underperformance of pension plan assets used to fund defined
benefits, the participants in defined contribution plans bear the
risk of high fees and investment underperformance. The importance
of defined contribution plans to the United States retirement
system has become pronounced as employer-provided defined benefit
plans are increasingly rare as an offered and meaningful employee
benefit.
As of December 31, 2020, the Plan had 109,634 participants with
account balances and assets totaling approximately $17.91 billion,
placing it in the top 0.1% of all defined contribution plans by
plan size. Defined contribution plans with substantial assets,
like
the Plan, have significant bargaining power and the ability to
demand low-cost administrative and investment management services
within the marketplace for administration of defined contribution
plans and the investment of defined contribution assets. The
marketplace for defined contribution retirement plan services is
well established and can be competitive when fiduciaries of defined
contribution retirement plans act in an informed and prudent
fashion, says the suit.
The Defendants have breached their fiduciary duties to the Plan by
selecting, retaining, and/or otherwise ratifying poorly-performing
investments instead of offering more prudent alternative
investments that were readily available at the time the Defendants
selected and retained the funds at issue and throughout the Class
Period, the suit alleges.
The Plaintiffs are former employees of Citi and former participants
in the Plan under 29 U.S.C. section 1002(7).
Citi is an American multinational investment bank and financial
services corporation. The Board appointed "authorized
representatives" of Citi, including the Administrative Committee,
as plan fiduciaries.[BN]
The Plaintiffs are represented by:
James E. Miller, Esq.
Laurie Rubinow, Esq.
James C. Shah, Esq.
Alec J. Berin, Esq.
Kolin C. Tang, Esq.
MILLER SHAH LLP
65 Main Street
Chester, CT 06412
Telephone: (866) 540-5505
Facsimile: (866) 300-7367
E-mail: jemiller@millershah.com
lrubinow@millershah.com
jcshah@millershah.com
ajberin@millershah.com
kctang@millershah.com
D&A HOME: Jimenez Seeks Overtime Wages for Construction Workers
---------------------------------------------------------------
Santiago Jimenez and other similarly situated individuals v. D&A
Home Specialty Services LLC, and Francisco Febles, individually,
Case No. 8:22-cv-01719 (M.D. Fla., July 29, 2022) seeks to recover
money damages for unpaid half-time overtime wages and retaliation
under the Fair Labor Standards Act.
The Defendants employed the Mr. Jimenez as a construction employee
from September 01, 2020, to May 20, 2022, or 89 weeks.
According to the complaint, the Plaintiff was hired as a
non-exempted full-time construction employee. Plaintiff's wage rate
was set at $200.00 daily or $1,000 weekly. The Plaintiff worked
under the supervision of the owner of the business, Francisco
Febles. The Plaintiff's duties included all kinds of construction
work.
D&A is a construction and remodeling company located at 12007 Hope
Lane, Tampa, Florida, where Plaintiff worked. The individual
Defendant Francisco Febles is the owner/partner and manager of D&A
Specialty.[BN]
The Plaintiff is represented by:
Zandro E. Palma, Esq.
ZANDRO E. PALMA, P.A.
Florida Bar No.: 0024031
9100 S. Dadeland Blvd., Suite 1500
Miami, FL 33156
Telephone: (305) 446-1500
Facsimile: (305) 446-1502
E-mail: zep@thepalmalawgroup.com
DEVON ENERGY: Cowan Files Suit in E.D. Oklahoma
-----------------------------------------------
A class action lawsuit has been filed against Devon Energy
Corporation, et al. The case is styled as Chuck Travis Cowan, on
behalf of himself and all others similarly situated v. Devon Energy
Corporation, Devon Energy Production Company, L. P., Case No.
6:22-cv-00220-JAR (E.D. Okla., Aug. 6, 2022).
The nature of suit is stated as Other Contract for Contract
Dispute.
Devon Energy Corporation -- https://www.devonenergy.com/ -- is an
energy company engaged in hydrocarbon exploration in the United
States.[BN]
The Plaintiff is represented by:
Reagan E. Bradford, Esq.
Ryan K. Wilson, Esq.
BRADFORD & WILSON, PLLC
431 W Main St, Ste D
Oklahoma City, OK 73102
Phone: (405) 698-2770
Fax: (405) 234-5506
Email: reagan@bradwil.com
ryan@bradwil.com
DOWNEAST OUTFITTERS: Dicks Files ADA Suit in S.D. New York
----------------------------------------------------------
A class action lawsuit has been filed against Downeast Outfitters,
Inc. The case is styled as Valerie Dicks, on behalf of herself and
all others similarly situated v. Downeast Outfitters, Inc., Case
No. 1:22-cv-06632-JPO (S.D.N.Y., Aug. 4, 2022).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Downeast -- https://www.downeastbasics.com/ -- provides the highest
quality and most affordable women's clothing available.[BN]
The Plaintiff is represented by:
Mars Khaimov, Esq.
10826 64th Avenue, Ste. 2nd Floor
Forest Hills, NY 11375
Phone: (917) 915-7415
Email: mars@khaimovlaw.com
EDGEWELL PERSONAL: California Court Narrows Claims in Moran Suit
----------------------------------------------------------------
In the case, MICHELLE MORAN, Plaintiff v. EDGEWELL PERSONAL CARE,
LLC, et al., Defendants, Case No. 21-cv-07669-RS (N.D. Cal.), Judge
Richard Seeborg of the U.S. District Court for the Northern
District of California grants in part and denies in part EPC's
motion to dismiss.
EPC brings the motion to dismiss pursuant to Federal Rules of Civil
Procedure 8, 9(b), 12(b)(1), 12(b)(2), 12(b)(6), and 12(f).
Ms. Moran brings the putative class action on behalf of consumers
nationwide who purchased Defendant EPC's Banana Boat branded
sunscreen products. According to Moran, these products, of which
over 10 are at issue, contain a claim on the label stating "Reef
Friendly -- No Oxybenzone or Octinoxate." She avers that statements
on Banana Boat products indicating that the sunscreen is "Reef
Friendly" are false as the products contain ingredients harmful to
coral reefs, and that she would not have purchased a Banana Boat
sunscreen with that claim had she known the statement was false.
On behalf of a proposed nationwide class and a subclass of
California consumers, Moran brings breach of warranty and unjust
enrichment/restitution claims. She also brings three additional
claims on behalf of the proposed California subclass: violation of
the California Unfair Competition Law, Cal. Bus. & Prof. Code
Sections 17200, et seq.; California False Advertising Law, Cal.
Bus. & Prof. Code Sections 17500, et seq.; and the California
Consumers Legal Remedies Act, Cal. Civ. Code Sections 1750, et
seq.
The Defendant raises multiple arguments under Federal Rule of Civil
Procedure 12(b)(6): (1) the Plaintiff's CLRA, UCL, and FAL claims
should be dismissed because she fails to meet the reasonable
consumer standard, and (2) the breach of warranty claim should also
be dismissed because the Defendant did not make an express or
implied warranty and because the implied warranty claim fails for
lack of privity.
First, the Defendant argues that the inclusion of "No Oxybenzone or
Octinoxate" below the statement "Reef Friendly" on the label means
that no reasonable consumer would be misled, because a reasonable
consumer would only interpret the label to mean that there was no
oxybenzone or octinoxate in the product. Judge Seeborg finds that
this inquiry is "fact-intensive and not well-suited for resolution
at the pleading stage."
The Plaintiffs aver -- with support from some scientific studies
and regulators -- that some of the chemicals in the challenged
products damage coral reefs. Judge Seeborg holds that it is
inappropriate to conclude at the pleadings stage that a reasonable
consumer would have interpreted the label to mean that the product
was only free from oxybenzone or octinoxate, regardless of possible
harms from other chemicals. The questions of whether the other
chemicals in the products are harmful to reefs, and how a
reasonable consumer would have interpreted the claim on the label,
can only be resolved after the development of evidence.
Hence, the motion to dismiss is therefore denied as to the
Defendant's theory that the reasonable consumer standard cannot be
met as a matter of law.
Second, the Defendant argues that the Plaintiff has failed to state
a claim for breach of an express or implied warranty. It also
argues that the breach of implied warranty claim fails because the
Plaintiff cannot show privity. The Plaintiff argues that courts
have "relaxed" this requirement "when the plaintiff relies on
written labels or advertisements of a manufacturer.
Judge Seeborg finds that the Plaintiffs have adequately pled that
the "Reef Friendly" label indicated more than just the absence of
oxybenzone and octinoxate, and thus she has pled a claim for breach
of express warranty. The motion is therefore denied as to the
breach of express warranty claim. And, as the Court has previously
noted, the holding from the California Supreme Court in Burr v.
Sherwin Williams that the privity exception only applies to express
warranties has never been overruled. The motion to dismiss is thus
granted as to the breach of implied warranty claim.
Third, the Defendant contends that the Plaintiff has not met the
heightened pleading standard of Federal Rule of Civil Procedure
9(b). It argues that "it is facially impossible for Plaintiff to
explain what is false about the 'Reef Friendly - No Oxybenzone or
Octinoxate' claim and why it is false." Judge Seeborg finds that
the Plaintiff has set out in her Complaint "what representation is
allegedly misleading, where and how defendants make the
representation, and why she contends it is misleading." The motion
to dismiss for failure to plead with particularity is therefore
denied.
The Defendant also argues that the Plaintiff makes vague references
to "advertising" and "marketing" without any further explanation,
and that to "the extent her claims rely on any marketing or
advertising aside from the 'Reef Friendly - No Oxybenzone or
Octinoxate' claim, they must be dismissed." The Plaintiff does not
identify any other marketing claims or forms of advertisements in
her Complaint. To the extent the Plaintiff's claims are predicated
on anything other than the "Reef Friendly - No Oxybenzone or
Octinoxate" claim, Judge Seeborg grants the motion to dismiss.
Fourth, the Defendant raises a variety of arguments concerning
standing. It first argues that the Plaintiff has not sustained an
injury-in-fact because she did not use the product near any coral
reef or in the ocean. However, that is not the Plaintiff's theory
of injury; instead, she argues that she has suffered an
injury-in-fact due to purchasing a product at a higher price than
she would have, had she known that the reef-friendly claim was
false as she alleges. As for the challenge to her standing to bring
nationwide claims and the inclusion of products she did not
purchase, Judge Seeborg holds that challenges to the Plaintiff's
standing with respect to specific sunscreen products she did not
purchase and to her ability to represent a nationwide class both
represent matters that are better addressed at the class
certification stage.
The Defendant further challenges the Plaintiff's statutory
standing. Judge Seeborg says, statutory standing concerns the
elements of a claim and "whether a plaintiff states a claim for
relief," which "relates to the merits of a case, not to the
dispute's justiciability," and thus this argument falls more
appropriately under the realm of Rule 12(b)(6) rather than Rule
12(b)(1). The Defendant argues that the Plaintiff does not meet the
injury requirement of the California statutes. The California
statutes she pleads, however, "demand no more than the
corresponding requirement under Article III of the U.S.
Constitution." Thus, the Plaintiff has satisfied the injury
requirement of statutory standing.
The Plaintiff has also adequately alleged reliance on the "Reef
Friendly" claim. Reliance under the FAL, CLRA, and UCL "requires
that a plaintiff allege she saw and read deceptive statements." She
alleges that she saw and read the allegedly deceptive statements on
the label, and thus has adequately alleged reliance.
Fifth, citing Sonner v. Premier Nutrition, 971 F.3d 834, 844 (9th
Cir. 2020) for the proposition that a plaintiff "must establish
that she lacks an adequate remedy at law before securing equitable
restitution for past harm under the UCL and CLRA,", the Defendant
argues that the equitable claims should be dismissed because the
Plaintiff has failed to establish she lacks an adequate remedy at
law. The Plaintiff points out that the Defendant's argument only
addresses her claim for restitution, not her forward-facing claim
for injunctive relief. Further, she argues that at the pleading
stage, she may plead claims in the alternative, and need not allege
that she does not have an adequate remedy at law. Notably, the
Defendant does not respond in its reply to Plaintiff's arguments
concerning whether she has an adequate remedy at law.
Judge Seeborg holds that as a number of other courts in this
district have concluded, "Sonner does not preclude a plaintiff from
pleading equitable remedies in the alternative." The motion to
dismiss the claims for equitable relief due to the availability of
remedies at law is therefore denied. "The issue of the Plaintiff's
entitlement to seek the equitable remedy of restitution may be
revisited at a later stage."
Additionally, the Defendant argues that the Plaintiff has failed to
allege facts to establish she is entitled to restitution,
contending that "she fails to allege any facts indicating that the
Product she allegedly purchased was worth any less than what she
paid or, indeed, that she did not receive the benefit of her
bargain because she did not or could not use the product for its
intended purpose to protect her from harmful rays of the sun." This
argument, according to Judge Seeborg, essentially repeats the same
arguments the Defendant makes concerning the lack of an
injury-in-fact, and is rejected for the same reason. The Plaintiff
has adequately pled that she paid more for a "Reef Friendly"
product than a product that did not contain those advertised
qualities. She has therefore adequately pled facts that she is
entitled to restitution.
Finally, the Defendant argues that dismissal is warranted because
the state law claims are preempted by federal law, and because the
primary jurisdiction doctrine permits the Court to stay or dismiss
claims which fall within the jurisdiction of a federal agency.
As Judge Seeborg explained, dismissal is not warranted under either
doctrine. He finds that the Defendant has failed to demonstrate
that the claims are expressly or impliedly preempted. He also finds
that the possibility that FDA regulations will change in a way that
will materially impact the outcome of this litigation "is too
remote at this juncture to warrant a stay or dismissal." The
primary jurisdiction doctrine therefore does not apply.
In light of the foregoing, the motion to dismiss is granted as to
the Plaintiff's ability to pursue liability for advertisements
other than the "Reef Friendly - No Oxybenzone or Octinoxate" claim
on the sunscreen labels, and as to the claim for breach of implied
warranty. The motion to dismiss is denied in all other respects.
Although it appears unlikely the defects in the Complaint can be
cured, Judge Seeborg grants the Plaintiff leave to amend. Any
amended complaint must be filed by 21 days from the date of his
Order.
A full-text copy of the Court's Aug. 2, 2022 Order is available at
https://tinyurl.com/bdh7kps8 from Leagle.com.
ENOCHIAN BIOSCIENCES: Faces Manici Suit Over Share Price Drop
-------------------------------------------------------------
PIER LUIGI MANICI and SARA CAVAGNA MANICI, Individually and On
Behalf of All Others Similarly Situated v. ENOCHIAN BIOSCIENCES,
INC. f/k/a DANDRIT BIOTECH USA, INC., ERIC LEIRE, MARK DYBUL,
ROBERT WOLFE and LUISA PUCHE, Case No. 2:22-cv-05237 (C.D. Cal.,
July 28, 2022) is a class action on behalf of persons and entities
that purchased or otherwise acquired Enochian securities between
January 17, 2018 and June 27, 2022, inclusive, including common
stock issued by Enochian in a private placement offering on or
about February 16, 2018.
The Plaintiffs pursue claims against the the Defendants under the
Securities Exchange Act of 1934.
On May 25, 2022, the U.S. Department of Justice announced that
Serhat Gumrukcu, the co-founder and inventor of Enochian, had been
arrested in a murder-for-hire conspiracy.
On this news, the Company's shares fell $2.17, or 37%, to close at
$3.70 25 per share on May 25, 2022, on unusually heavy trading
volume.
On June 1, 2022, Hindenburg Research published a research report
alleging, among other things, that the charge related to the murder
of Gregory Davis, just days before Gumrukcu was to defend himself
against felony fraud allegations related to a deal with Davis.
According to the report, "federal prosecutors argued that the
prospective merger deal that eventually resulted in Enochian going
public served as a key motive for the murder." The report also
alleged that Gumrukcu is not a licensed doctor in any jurisdiction
in the world, that he had pled guilty to felony charges in the
midst of the Company's merger, and that he "had siphoned tens of
millions of dollars in shareholder cash from Enochian to his
privately-owned entities."
Moreover, Hindenburg alleged that Enochian has been aware of the
foregoing allegations.
On this news, the Company's shares fell $1.495, or 28.4%, to close
at 10 $3.77 on June 1, 2022, on unusually heavy trading volume.
On June 27, 2022, The Wall Street Journal published an article
about Gumrukcu's participation in the murder-for-hire conspiracy,
claiming that Gumrukcu owed Davis over $900,000 after Gumrukcu
coaxed Davis into entering into a fraudulent oil deal with him. The
article further alleged that FBI agents were suspicious that
Gumrukcu "had fabricated his resume and held neither a medical
degree nor a doctoral degree."
On this news, the Company's shares fell $0.73, or 21.9%, to close
at $2.60 per share on June 27, 2022, on unusually heavy trading
volume.
Throughout the Class Period, the Defendants made materially false
and/or misleading, and failed to disclose material adverse facts
about the Company's business, operations, and prospects.
Specifically, Defendants failed to disclose to investors that
co-founder and inventor Gumrukcu was engaged in a variety of
frauds, says the suit.
As a result of Defendants' wrongful acts and omissions, and the
precipitous decline in the market value of the Company's
securities, Plaintiffs and other Class members have suffered
significant losses and damages.
The Plaintiffs purchased Enochian securities during the Class
Period, and suffered damages as a result of the alleged federal
securities law violations and false and/or misleading statements
and/or material omissions.
Enochian is a pre-clinical stage biotechnology company that is
developing cures and treatment for HIV, HBV, influenza,
coronavirus, and cancer. The Individual Defendants are officers of
the company.[BN]
The Plaintiffs are represented by:
Robert V. Prongay, Esq.
Charles H. Linehan, Esq.
Pavithra Rajesh, Esq.
GLANCY PRONGAY & MURRAY LLP
1925 Century Park East, Suite 2100
Los Angeles, CA 90067
Telephone: (310) 201-9150
Facsimile: (310) 201-9160
E-mail: rprongay@glancylaw.com
clinehan@glancylaw.com
prajesh@glancylaw.com
- and -
Frank R. Cruz, Esq.
THE LAW OFFICES OF FRANK R. CRUZ
1999 Avenue of the Stars, Suite 1100
Los Angeles, CA 90067
Telephone: (310) 914-5007
EPIC SPORTS: Montero Files TCPA Suit in S.D. Florida
----------------------------------------------------
A class action lawsuit has been filed against Epic Sports, Inc. The
case is styled as Niko Montero, individually and on behalf of all
others similarly situated v. Epic Sports, Inc., Case No.
0:22-cv-61459-XXXX (S.D. Fla., Aug. 4, 2022).
The lawsuit is brought over alleged violation of the Telephone
Consumer Protection Act for Restrictions of Use of Telephone
Equipment.
Epic Sports -- https://www.epicsports.com/ -- offers the largest
selection of baseball gear, soccer gear, football equipment,
customizable uniforms, closeouts, and more.[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
EXPERIAN INFORMATION: Identity Verification Insufficient, Suit Says
-------------------------------------------------------------------
WALTER HOPGOOD, individually and on behalf of all other similarly
situated v. EXPERIAN INFORMATION SOLUTIONS, INC., a corporation,
Case No. 8:22-cv-01400 (C.D. Cal., July 28, 2022) arises from
Experian's violations of the Fair Credit Reporting Act that have
allowed for a spate of identity thefts perpetrated using Experian
consumer accounts.
The Plaintiff, along with similarly situated Class Members, allege
that these identity thefts resulted from a combination of
Experian's inadequate security measures and insufficient identity
verification procedures related to the Plaintiff's and Class
Members' Experian consumer accounts. The Plaintiff further alleges
that, because of Experian's insufficient security measures, hackers
and cybercriminals can easily and repeatedly take control of the
victims' Experian consumer accounts or create new Experian accounts
in victims' names. The cybercriminals can then use the victims'
Experian accounts to facilitate identity theft (Security Failure),
says the Plaintiff.
The Defendant's actions or inactions that allowed for the Security
Failure also violate its duties and obligations as a credit
reporting agency under the FCRA. This action seeks to hold
Defendant accountable for its conduct and its repeated refusal to
remedy its security issues and/or deploy additional security
measures readily available to Defendant, such as two-factor or
multi-factor authentication. This case seeks vindication and
recompense on behalf of the individual consumers whose Consumer
Data and PII was collected, maintained, and inadequately protected
by Experian, the suit asserts.
The Plaintiff seeks to recover FCRA statutory damages to the
fullest extent allowable by law. In addition Plaintiff also seeks
injunctive relief requiring Defendant to conduct a full-system
audit to finally properly verify the identity of each Experian
consumer account holder using its “robust identity verification
services.
Experian is an American–Irish multinational consumer credit
reporting company. Experian collects and aggregates information on
over 1 billion people and businesses, including 235 million
individual U.S. consumers and more than 25 million U.S.
businesses.[BN]
The Plaintiff is represented by:
Michael F. Ram, Esq.
MORGAN & MORGAN COMPLEX
LITIGATION GROUP
633 West Fifth Street, Suite 2652
Los Angeles, CA 90071
Telephone: (415) 358-6913
Facsimile: (415) 418-6293
E-mail: mram@ForThePeople.com
- and-
JOHN A. YANCHUNIS, Esq.
PATRICK A. BARTHLE II, Esq.
MORGAN & MORGAN COMPLEX
LITIGATION GROUP
201 N. Franklin Street, 7th Floor
Tampa, FL 33602
Telephone: (813) 559-4908
Facsimile: (813) 222-4795
E-mail: jyanchunis@ForThePeople.com
pbarthle@ForThePeople.com
FANDOM INC: Discloses Digital Users' Identities to Meta, Suit Says
------------------------------------------------------------------
RONDA LEE HAINES, QUANA WILLIAMS, and MARIXA KELLY, individually
and on behalf of all others similarly situated v. FANDOM, INC.,
Case No. 3:22-cv-04423 (N.D. Cal., July 29, 2022) is a consumer
privacy class action against Fandom for violating the Video
Privacy
Protection Act by disclosing its digital users' identities and
video-viewing preferences to Meta Platforms, Inc. without proper
consent.
Fandom is a self-described "world's largest entertainment & gaming
fan platform."
Meta owns the popular social media platforms Facebook and
Instagram.
The VPPA prohibits "video tape service providers," such as Fandom,
from knowingly disclosing consumers' personally identifiable
information ("PII"), including "information which identifies a
person as having requested or obtained specific video materials or
services from a video tape provider," without the person having
expressly given consent in a standalone consent form.
According to the complaint, Fandom collects and shares users'
personal information with Meta using a "Meta Pixel" or "Pixel" -- a
snippet of programming code that, once installed on a webpage,
sends information to Meta. In this case, the information shared
with Meta includes the user's Facebook Profile ID and the title of
the video that the user watched. A user's Facebook Profile ID is
linked to their Facebook profile, which generally contains a wide
range of demographic and other information about the user,
including pictures, personal interests, work history, relationship
status, and other details.
Fandom discloses the user's Facebook Profile ID and viewing content
to Meta together in a single, unencrypted transmission in violation
of the VPPA. Because the user's Facebook Profile ID uniquely
identifies an individual's Facebook account, Meta -- or any other
person -- can use the Facebook Profile ID to quickly and easily
locate, access, and view the user's corresponding Facebook profile.
In other words, the Pixel allows Meta to know what video content
one of its users viewed on Fandom's website. Fandom users do not
consent to Fandom's disseminations of users' viewing content along
with Facebook Profile IDs to a third party through a standalone
consent form, as required by the VPPA. As a result, Fandom violates
the VPPA by disclosing this information to Meta, says the suit.
On behalf of a Class of similarly situated Fandom users, Plaintiffs
seek relief through this action. Based on the facts set forth in
this Complaint, Fandom violated the VPPA and is liable for unjust
enrichment.
The Plaintiffs used their Internet-connected devices and
Web-browsing software installed on those devices to visit and watch
video content on Fandom's website, http://www.fandom.com,during
the Class Period.[BN]
The Plaintiffs are represented by:
Adam E. Polk, Esq.
Simon Grille, Esq.
Kimberly Macey, Esq.
Jordan Isern, Esq.
GIRARD SHARP LLP
601 California Street, Suite 1400
San Francisco, CA 94108
Telephone: (415) 981-4800
E-mail: apolk@girardsharp.com
sgrille@girardsharp.com
kmacey@girardsharp.com
jisern@girardsharp.com
FIRSTCREDIT INTERNATIONAL: Luna Sues Over Unfair Debt Collection
----------------------------------------------------------------
GRICEL LUNA, individually and on behalf of all those similarly
situated v. FIRSTCREDIT INTERNATIONAL CORP D/B/A FIRSTCREDIT, Case
No. CACE-22-011095 (Fla. Cir., Broward Cty., July 28, 2022) sues
FirstCredit for violations of the Fair Debt Collection Practices
Act (FDCPA) and Florida Consumer Collection Practices Act.
On a date better known by Defendant, the Defendant began attempting
to collect a consumer debt from the Plaintiff. The Consumer Debt is
an obligation allegedly had by the Plaintiff to pay money arising
from a transaction between the original creditor of the Consumer
Debt, Cleveland Clinic, and Plaintiff. The Subject Service was
primarily for personal, family, or household purposes. The
Defendant is a business entity engaged in the business of
soliciting consumer debts for collection.
On April 08, 2022, Defendant sent a collection letter to Plaintiff
in an attempt to collect the Consumer Debt. The Collection Letter
is an action to collect a debt by Defendant. The Defendant is an
entity required to register as a consumer collection agency with
the Florida Department of State, to lawfully collect consumer debts
from Florida consumers. When attempting to collect the Consumer
Debt from Plaintiff, Defendant was not lawfully licensed to collect
consumer debts from Florida consumers in accordance with Fla. Stat.
section 559.553, the Plaintiff contends.[BN]
The Plaintiff is represented by:
Thomas Patti, Esq.
Victor Zabaleta, Esq.
PATTI ZABALETA LAW GROUP
3323 Northwest 55th Street
Fort Lauderdale, FL 33309
Telephone: (561) 542-8550
E-mail: Tom@pzlg.legal
Victor@pzlg.legal
FREDDIE MAC: Faces Securities Suit
-----------------------------------
Federal Home Loan Mortgage Corporation (Freddie Mac) disclosed in
its Form 10-Q Report for the quarterly period ended June 30, 2022,
filed with the Securities and Exchange Commission on July 28, 2022,
that it is facing a putative securities class action lawsuit filed
against it and certain former officers on January 18, 2008 in the
U.S. District Court for the Northern District of Ohio purportedly
on behalf of a class of purchasers of Freddie Mac stock from August
1, 2006 through November 20, 2007. T
he Federal Housing Finance Agency later intervened as Conservator,
and the plaintiff amended its complaint on several occasions.
The plaintiff alleged, among other things, that the defendants
violated federal securities laws by making false and misleading
statements concerning the company's business, risk management, and
the procedures put into place to protect the company from problems
in the mortgage industry. The plaintiff seeks unspecified damages
and interest, and reasonable costs and expenses, including attorney
and expert fees.
In October 2013, defendants filed motions to dismiss the complaint.
In October 2014, the District Court granted defendants' motions and
dismissed the case in its entirety against all defendants, with
prejudice.
In November 2014, plaintiff filed a notice of appeal in the U.S.
Court of Appeals for the Sixth Circuit. In July 2016, the Sixth
Circuit reversed the District Court's dismissal and remanded the
case to the District Court for further proceedings. In August 2018,
the District Court denied the plaintiff's motion for class
certification, and in January 2019, the Sixth Circuit denied
plaintiff's petition for leave to appeal that decision.
On September 17, 2020, the District Court granted a request from
the plaintiff for summary judgment and entered final judgment in
favor of Freddie Mac and the other defendants. On October 9, 2020,
the plaintiff filed a notice of appeal in the Sixth Circuit. On
January 27, 2021, Freddie Mac filed a motion to dismiss the appeal,
which the Sixth Circuit denied on January 6, 2022.
Federal Home Loan Mortgage Corporation is a government sponsored
enterprise based in Virginia.
GERI-CARE PHARMA: Fails to Pay Medicine Packers' Wages, Junco Says
------------------------------------------------------------------
EPIFANIA JUNCO, individually and on behalf of all others similarly
situated, Plaintiff v. GERI-CARE PHARMACEUTICALS CORP., ELLIOT
SHINDLER an SHEINDY SHINDLER, as individuals, Defendants, Case No.
1:22-cv-04532 (E.D.N.Y., August 2, 2022) is a collective action
complaint brought against the Defendants for their alleged
violations of the Fair Labor Standards Act and the New York Labor
Law.
The Plaintiff was employed by the Defendants as a medicine packer
while also performing related miscellaneous duties for the
Defendants from in or around March 2000 until in or around March
2022. The Plaintiff also worked at the House of the Individual
Defendants as a cleaner and housekeeper while also performing other
miscellaneous duties from in or around March 2000 until in or
around December 2021.
The Plaintiff asserts these claims:
-- The Defendants willfully failed to pay him overtime wages
for all hours regularly worked over 40 hours per week at the rate
of one and one-half times his regular rate of pay;
-- The Defendants failed to pay wages on a weekly basis;
-- The Defendants failed to provide him with wage statements
upon each payment of his wages; and
-- The Defendants failed to provide him with a written notice
of their rate of pay, regular pay day, and such other information
as required by NYLL.
On behalf of himself and all other similarly situated employees of
the Defendants, the Plaintiff seeks unpaid overtime wages and
unpaid wages on timely basis, liquidated damages, pre- and
post-judgment interest, litigation costs with reasonable attorneys'
fees, and other relief as the court deems necessary and proper.
Geri-Care Pharmaceuticals Corp. is a company that manufactures
medicines. Elliot Shindler and Sheindy Shindler are co-owners of
the Corporate Defendants. [BN]
The Plaintiff is represented by:
Roman Avshalumov, Esq.
HELEN F. DALTON & ASSOCIATES, P.C.
80-02 Kew Gardens Road, Suite 601
Kew Gardens, NY 11415
Tel: (718) 263-9591
GKN DRIVELINE: Court Certifies Mebane's Automatic Deduction Class
-----------------------------------------------------------------
In the case, JAMES MEBANE and ANGELA WORSHAM, on behalf of
themselves and all others similarly situated, Plaintiffs v. GKN
DRIVELINE NORTH AMERICA, INC., Defendant, Case No. 1:18-CV-892
(M.D.N.C.), Judge Loretta C. Biggs of the U.S. District Court for
the Middle District of North Carolina:
(i) grants in part and denies in part the Plaintiffs' Motion
to Amend Previously Certified Class or, in the
alternative, to Certify Class Claims, filed on March 31,
2022; and
(ii) denies without prejudice their Motion for Summary
Judgment, filed on Nov. 29, 2021.
The Defendant operates three manufacturing facilities in North
Carolina. The Plaintiffs worked for it as non-exempt, hourly
employees until April 2018. They filed the suit on their own behalf
and on behalf of similarly situated employees on Oct. 23, 2018,
alleging that the Defendant failed to pay its employees for all
hours worked in violation of the Fair Labor Standards Act and North
Carolina Wage and Hour Act. Among other charges, the Plaintiffs
alleged that the Defendant did not compensate employees for work
performed before shifts began or after shifts ended due to its
"Rounding Policy," even though employees notified it of actual
hours worked by clocking in and out.
On Nov. 5, 2020, the Court conditionally certified the Plaintiffs'
FLSA claims and certified the following NCWHA class: Individuals
who were, are, or will be employed at Defendant GKN's North
Carolina facilities on the manufacturing floor in non-managerial
positions, were not compensated all promised, earned, and accrued
wages due to Defendant's rounding policy, including, but not
limited to, compensation for all hours worked up to 40 in a week
and for hours worked above 40 in a week within two years prior to
the commencement of the action, through the present.
On June 23, 2021, the Plaintiffs requested leave to file a Fourth
Amended Complaint to add allegations that the class members were
also not compensated when they worked during scheduled lunch breaks
due to Defendant's "Automatic Deduction Policy." Under the
Defendant's Automatic Deduction Policy, the Defendant generally
scheduled an unpaid thirty-minute meal break during each hourly
employee's shift. Until January 2020, employees did not clock-out
during these meal periods unless they left the Defendant's
premises. Instead, the Defendant automatically deducted thirty
minutes from each employee's total hours worked each shift. It
ended the automatic deduction in approximately January 2020 and now
requires employees to clock in and out during their meal period.
The Named Plaintiffs and 16 Class Members testify that they worked
during unpaid meals or otherwise did not receive full 30-minute
meal breaks. The Plaintiffs also offer evidence that supervisors
directed or witnessed unpaid mealtime work. The Defendants offer
rebuttal evidence that employees did not work during unpaid
mealtimes. They offer additional testimony from 30 employees that
never performed unpaid meal break work. These 38 employees have
opted out of the certified Rounding Policy Class.
The Court granted the Plaintiffs' motion to amend their complaint
on March 10, 2022 but clarified that their newly asserted claim
that Class members were not paid for hours worked during lunch
falls outside the scope of the NCWHA Class certified by this Court"
and "Plaintiffs must file a separate motion to amend the Court's
Order to certify a new Class. The Plaintiffs' motion followed.
Discovery has now closed, and a trial is scheduled for Jan. 9,
2023.
The Plaintiffs seek to amend the NCWHA class to include claims for
wages lost due to Defendant's Automatic Deduction Policy or, in the
alternative, certify a separate Automatic Deduction class. Judge
Biggs finds it appropriate to separate the Rounding Policy and
Automatic Deduction claims into separate classes pursuant to Rule
23(c)(4). The two claims involve different questions of law and
fact that require nuanced analysis of each under Rule 23.
First, the two classes are not coextensive. Employee testimony
shows that employees engaged in different conduct during unpaid
mealtimes that may or may not be compensable, and some testified
that they never worked during lunch. Second, the Plaintiffs'
Rounding Policy claim is supported by the Defendant's time records,
which document which employees clocked in before or clocked out
after their shifts began or ended. Employees did not typically
clock out during lunch, so the Plaintiffs' Automatic Deduction
claim must be supported by evidence that individual Class members
worked during unpaid mealtimes on particular occasions. Third, the
Court has not received briefing on the relevant legal standard for
assessing whether the Defendant's Automatic Deduction Policy
violated the NCWHA and will not offer an opinion here on what the
relevant standard is. It appears, however, that whether an
employee's mealtime activities are compensable may be a "flexible
and realistic" question that requires the trier of fact to
determine "whether, on balance, employees use mealtime for their
own, or for their employer's benefit."
It appears, therefore, that the Automatic Deduction claims depend
on issues of law and fact that will vary significantly between
members of the Rounding Policy Class. It would consequently be
inappropriate to merely amend the Rounding Policy Class to include
the Plaintiffs' Automatic Deduction claims.
Moreover, the Plaintiffs' evidence does not show a uniform theory
of liability for their Automatic Deduction claims. Mebane and
approximately 11 putative class members testify that they completed
normal work at their workstations or responded to emergencies
during meal breaks, primarily because of understaffing. Worsham, on
the other hand, testifies that she took every meal break but lost
time due to washing her hands and walking to and from her
workstation. Other Class members spent unpaid time removing and
storing protective equipment or waiting in line for the microwave.
Thus, it appears that resolving whether Mebane or Worsham completed
compensable work during unpaid mealtimes will resolve the same
question for some, but not all, putative class members.
Accordingly, Judge Biggs examines two potential classes for
certification: One, represented by Mebane, that conducted ordinary
or emergency work during unpaid mealtimes; and a second,
represented by Worsham, that were otherwise unable to take a full
thirty-minutes for lunch.
Under Rule 23(a), a class must meet the requirements of numerosity,
commonality, typicality, and adequacy. When a plaintiff can satisfy
each element of Rule 23(a), they must additionally meet one of the
requirements under 23(b). The Plaintiffs seek class certification
under Rule 23(b)(3), which requires (1) that "questions of law or
fact common to class members predominate over any questions
affecting only individual members"; and (2) that "a class action is
superior to other available methods" of adjudication, Fed. R. Civ.
P. 23(b)(3).
Regarding Mebane's Automatic Deduction class, Judge Biggs finds
that (i) a sufficiently numerous group of employees worked during
unpaid mealtimes; (ii) it is undisputed that all putative class
members were subject to the challenged Automatic Deduction policy;
(iii) Mebane's claim is typical of putative class members' claims;
(iv) Mebane's interests are aligned with other employees who worked
during unpaid mealtimes and were not compensated, and there is no
evidence that his loyalties are divided; (v) the putative class
members share a common theory of liability and substantially
similar facts; and (vi) manageability concerns are outweighed by
the advantages and economies of class litigation.
The Court certifies the following Rule 23 Automatic Deduction
Class: Individuals who were, are, or will be employed at Defendant
GKN's North Carolina facilities on the manufacturing floor in
non-managerial positions, were not compensated all promised,
earned, and accrued wages for hours worked during unpaid meals due
to Defendant's automatic deduction policy, including, but not
limited to, compensation for all hours worked up to 40 in a week
and for hours worked above 40 in a week within two years prior to
the commencement of this action, through the present.
Unlike Mebane's class, Judge Marston opines that numerous problems
with Worsham's class are readily apparent. First, questions of
liability may not be resolvable class-wide, since whether an
employees' activities were compensable may require a detailed
factual analysis and balancing that is specific to each employee.
Second, Worsham's experience is typical of some, but not all,
putative class members. Third, extrapolating the amount of time
employees engaged in compensable work would likely prove
impossible. Since Worsham's putative class does not meet the
requirements of commonality or typicality, and since individual
issues predominate, Judge Marston does not certify a separate class
to include employees who spent mealtime conducting these
activities.
The Plaintiffs attached a proposed "Additional Notice of Rights" to
their motion. Since she grants in part and denies in part the
Plaintiffs' motion and certify a separate Automatic Deduction
Class, their proposed "Additional Notice of Rights" is insufficient
notice pursuant to Rule 23(c)(2)(B).
Based on the foregoing, Judge Marston grants in part and denies in
part the Plaintiffs' Motion to Amend Previously Certified Class or,
in the alternative, to Certify Class Claims. She grants it with
respect to claims that employees were not paid for ordinary, or
emergency work conducted during mealtimes due to the Defendant's
Automatic Deduction Policy. She denies it with respect to all other
claims.
The Plaintiffs will submit within 15 days of the Order a proposed
Notice to be sent to members of the newly certified Automatic
Deduction class that complies with Rule 23(c)(2)(B). The Defendant
may, but need not, submit a response to such proposed Notice within
10 days of being served therewith.
Judge Marston denies without prejudice the Plaintiffs' Motion for
Summary Judgment. The Plaintiffs may refile their motion within 30
days of the Order.
A full-text copy of the Court's Aug. 2, 2022 Memorandum Opinion &
Order is available at https://tinyurl.com/nhbmz9cu from
Leagle.com.
GOLDELM AT CHARTER: Pagan Seeks Overtime Wages Under FLSA
---------------------------------------------------------
Felix M. Pagan and other similarly situated individuals v. Goldelm
At Charter Pointe, LLC, d/b/a Charter Pointe Apartments, Case No.
6:22-cv-01353 (M.D. Fla., July 29, 2022) seeks to recover money
damages for unpaid overtime wages under the Fair Labor Standards
Act.
The Plaintiff contends that he and all other current and former
employees similarly situated worked more than 40 hours during one
or more weeks on or after August 2021 without being adequately
compensated.
The Plaintiff was hired as a maintenance employee and porter for
Charter Pointe Apartments, a residential complex with 2 stories and
312 units. Plaintiff had multiple responsibilities, including
maintenance, emergency repairs, plumbing, electricity, and
painting.
Goldelm At Charter Pointe is a property management company. The
Defendant provided property management, leasing, and maintenance
services to Charter Pointe Apartments, located at 919 Ballard
Street, Altamonte Springs, Florida 32701.[BN]
The Plaintiff is represented by:
Zandro E. Palma, Esq.
ZANDRO E. PALMA, P.A.
9100 S. Dadeland Blvd., Suite 1500
Miami, FL 33156
Telephone: (305) 446-1500
Facsimile: (305) 446-1502
E-mail: zep@thepalmalawgroup.com
GONZAGA UNIVERSITY: Website Not Accessible to Blind, Young Alleges
------------------------------------------------------------------
LAWRENCE YOUNG, ON BEHALF OF HIMSELF AND ALL OTHER PERSONS
SIMILARLY SITUATED v. THE CORPORATION OF GONZAGA UNIVERSITY, Case
No. 1:22-cv-06421 (S.D.N.Y., July 28, 2022) alleges that the
Defendant failed to design, construct, maintain, and operate its
interactive website to be fully accessible to and independently
usable by Plaintiff and other blind or visually-impaired persons.
The Defendant's denial of full and equal access to its website, and
therefore denial of its products and services offered thereby, is a
violation of Plaintiff's rights under the Americans with
Disabilities Act ("ADA") and The Rehabilitation Act of 1973 ("RA")
prohibiting discrimination against the blind, the Plaintiff
contends.
Because Defendant's interactive website, https://www.gonzaga.edu/,
including all portions thereof or accessed thereon, including, but
not limited to, https://gozags.com/, is not equally accessible to
blind and visually-impaired consumers, it violates the ADA and the
RA, says the suit.
The Plaintiff seeks a permanent injunction to cause a change in
Defendant's corporate policies, practices, and procedures so that
Defendant's website will become and remain accessible to blind and
visually-impaired consumers.
By failing to make its Website available in a manner compatible
with computer screen reader programs, Defendant deprives blind and
visually-impaired individuals the benefits of its online goods,
content, and services -- all benefits it affords nondisabled
individuals -- thereby increasing the sense of isolation and stigma
among those persons that Title III was meant to redress.
The Plaintiff is a visually-impaired and legally blind person who
requires screen-reading software to read website content using his
computer. The Plaintiff uses the terms "blind" or
"visually-impaired" to refer to all people with visual impairments
who meet the legal definition of blindness in that they have a
visual acuity with correction of less than or equal to 20 x 200.
Some blind people who meet their definition have limited vision.
Others have no vision.
The Defendant operates the Gonzaga University online interactive
Website and retail store across the United States.[BN]
The Plaintiff is represented by:
Michael A. LaBollita, Esq.
Jeffrey M. Gottlieb, Esq.
Dana L. Gottlieb, Esq.
GOTTLIEB & ASSOCIATES
150 East 18th Street, Suite PHR
New York, NY 10003
Telephone: (212) 228-9795
Facsimile: (212) 982-6284
E-mail; Michael@Gottlieb.legal
Jeffrey@gottlieb.legal
Dana@Gottlieb.legal
HAWAII: DOE Appeals Professional Fees Ruling in E.R.K. Suit
-----------------------------------------------------------
STATE OF HAWAII DEPARTMENT OF EDUCATION filed an appeal from a
court ruling entered in the lawsuit entitled E.R.K, through his
legal guardian, R.K., et al., Plaintiffs v. DEPARTMENT OF
EDUCATION, State of Hawaii, Defendant, Civil No. 10-00436 SOM/KSC,
in the U.S. District Court for the District of Hawaii, Honolulu.
As reported in the Class Action Reporter on June 13, 2022, Judge
Susan Oki Mollway of the U.S. District Court for the District of
Hawaii adopted in part and rejected in part a Findings and a
Recommendation on the Settlement Administrator's Application for
Additional Administrative Fees filed in the case.
Objections to the Order Granting Settlement Administrator's
Application for Additional Administrative Fees, which the Court
construes as Findings and a Recommendation ("F&R"), arise out of
the settlement of this certified class action. The underlying
claims concerned whether the State of Hawaii Department of
Education ("DOE") wrongfully denied services under the Individuals
with Disabilities Education Act to individuals the DOE viewed as
having "aged out" of being eligible to receive services. The Court
has previously awarded various expenses and fees in this case.
Specifically, in an order dated April 28, 2022, the Magistrate
Judge, acting pursuant to the consent of the parties under 28
U.S.C. Section 636(c), awarded $430,608.50 in additional attorneys'
fees. In an F&R issued the same day, the Magistrate Judge
recommended approval of additional administrative fees of
$316,443.31. Of this amount, the DOE objects to $287,919.50 awarded
in "Class Counsel's Fees." In other words, the Magistrate Judge had
before him two requests for attorneys' fees, one for $430,608.50
and one for $287,919.50. The latter amount was sought as
administrative expenses rather than as attorneys' fees.
The Court adopted the F&R in part and rejected it in part without
holding a hearing. It declined to award attorneys' fees as
administrative expenses, as the Court has a local rule governing
motions for attorneys' fees that must be followed. However, it
adopted the F&R to the extent it awarded $28,523.81 in other
administrative fees ($316,443.31 - $287,919.50 = $28,523.81). The
denial of attorneys' fees sought under the guise of administrative
fees is without prejudice to another motion seeking those fees.
The Defendant seeks a review of this order.
The appellate case is captioned as E. K., et al. v. EDU-HI, Case
No. 22-16023, in the United States Court of Appeals for the Ninth
Circuit, filed on July 14, 2022.
The briefing schedule in the Appellate Case states that:
-- Appellant State of Hawaii Department of Education Mediation
Questionnaire was due on July 21, 2022;
-- Transcript shall be ordered by August 15, 2022;
-- Transcript is due on September 14, 2022;
-- Appellant State of Hawaii Department of Education opening
brief is due on October 24, 2022;
-- Appellees R. T. D., Hawai'i Disability Rights Center and E.
R. K. answering brief is due on November 25, 2022; and
-- Appellant's optional reply brief is due 21 days after service
of the answering brief.[BN]
Defendant-Appellant STATE OF HAWAII DEPARTMENT OF EDUCATION is
represented by:
Kevin M. Richardson, Esq.
Ryan W. Roylo, Esq.
Carter K. Siu, Esq.
AGHI - OFFICE OF THE ATTORNEY GENERAL HAWAII
235 S Beretania Street
Honolulu, HI 96813-2406
Telephone: (808) 586-1255
Plaintiffs-Appellees E. R. K., by his legal guardian R.K., et al.,
are represented by:
Paul D. Alston, Esq.
Erika L. Amatore, Esq.
DENTONS US, LLP
1001 Bishop Street, Suite 1800
Honolulu, HI 96813
Telephone: (808) 524-1800
- and -
Kristin L. Holland, Esq.
KATTEN MUCHIN ROSENMAN, LLP
2029 Century Park, E, Suite 2600
Los Angeles, CA 90067
Telephone: (310) 788-4647
HOFSTRA UNIVERSITY: Stellato Appeals Order in Tuition Fee Suit
--------------------------------------------------------------
Plaintiff Gabriel Stellato filed an appeal from a court ruling
entered in the lawsuit entitled Gabriel Stellato, on behalf of
himself and all others similarly situated v. HOFSTRA UNIVERSITY,
Case No. 1:20-cv-01999, in the U.S. District Court for the Eastern
District of New York.
As reported in the Class Action Reporter, the lawsuit, filed on May
1, 2020 is brought on behalf of all people, who paid tuition and
fees for the Spring 2020 academic semester at the Hofstra, and who,
because of the Defendant's response to the Novel Coronavirus
Disease 2019 pandemic, lost the benefit of the education for which
they paid, and/or the educational and related services and
facilities for which they paid, without having their tuition and
fees refunded to them.
On March 20, 2020, Hofstra, through a news release, announced that
because of the global COVID-19 pandemic, all in-person classes
would be suspended, and that virtual classes would begin on March
23, 2020. Hofstra has not held in-person classes since March 6,
2020. Classes that have continued since then have only been offered
in an online format, at times with little or no actual, real-time
instruction from professors. As a result of the closure of the
Defendant's facilities, the Defendant has not delivered the
educational services, facilities, access and/or opportunities that
Mr. Stellato and the putative class contracted and paid for, says
the suit.
The Plaintiff and the putative class are, therefore, entitled to a
refund of tuition and fees for in-person educational services,
facilities, access and/or opportunities that the Defendant has not
provided, says the complaint. Even if the Defendant claims it did
not have a choice in cancelling in-person classes, it nevertheless
has improperly retained funds for services that have diminished in
value or are not being provided at all.
On September 23, 2021, the Defendant filed a motion to dismiss the
case.
On June 17, 2022, the Court entered a Memorandum & Order declining
to exercise its jurisdiction as required by Class Action Fairness
Act Section 1332(d)(4)(B). In the alternative, the Court declined
to exercise its jurisdiction as permitted by Section 1332(d)(3).
The Clerk of the Court was directed to close the case.
On June 21, 2022, the Motion to Dismiss was rendered moot by the
Court.
The appellate case is captioned as Stellato v. Hofstra University,
Case No. 22-1534, in the United States Court of Appeals for the
Second Circuit, filed on July 15, 2022.[BN]
Plaintiffs-Appellants Gabriel Stellato, on behalf of himself and
all others similary situated, et al., are represented by:
Joseph Ignatius Marchese, Esq.
BURSOR & FISHER, P.A.
888 7th Avenue
New York, NY 10019
Telephone: (646) 837-7410
Defendant-Appellee Hofstra University is represented by:
Stephanie M. Campbell, Esq.
BOND, SCHOENECK & KING, PLLC
1 Lincoln Center
110 West Fayette Street
Syracuse, NY 13202
Telephone: (315) 218-8391
HOLLYWOOD MANAGEMENT: Suit Seeks Restaurant Staff's Proper Wages
----------------------------------------------------------------
Rossy Estephany Polanco Estrella, Juana Ramos Cabrera, Jocelyn
Rodriguez Pena on behalf of themselves and all other persons
similarly situated v. Hollywood Management LLC, Mike Doe and Prince
Doe, Case No. 1:22-cv-04444 (E.D.N.Y. July 28, 2022) seeks
compensation for wages paid at less than the statutory minimum
wage, unpaid wages for overtime work, and liquidated damages
pursuant to the Fair Labor Standards Act and the New York Labor
Law.
The Plaintiffs seek to prosecute their FLSA claims as a collective
action on behalf of a collective group of persons defined as
follows:
"All persons who are or were formerly employed by the
defendants
in the United States at any time since July 27, 2019, to the
entry of judgment in this case, who were restaurant employees,
and who were not paid statutory minimum wages and/or overtime
compensation at rates at least one-and-one-half times the
regular rate of pay for hours worked in excess of forty hours."
The Defendants owned and operated the Hollywood Motel, a motel
located at 400 Route 109, Farmingdale, New York.[BN]
The Plaintiffs are represented by:
Michael Samuel, Esq.
THE SAMUEL LAW FIRM
1441 Broadway, Suite 6085
New York, NY 10018
Telephone: (212) 563-9884
E-mail: michael@thesamuellawfirm.com
HYUNDAI MOTOR: Faes Reis Class Suit Over Illegal Use of Child Labor
-------------------------------------------------------------------
LEA REIS on behalf of herself and all others similarly situated v.
HYUNDAI MOTOR AMERICA and HYUNDAI MOTOR COMPANY, Case No.
8:22-cv-01405 (C.D. Cal., July 28, 2022) is a class action lawsuit
seeking to stop and prevent Defendants' illegal use of child
labor.
This class action lawsuit is brought by the Plaintiff on behalf of
herself and a national class of current and former owners and
lessees of Hyundai vehicles that were assembled at Hyundai Motor
Manufacturing Alabama, LLC using parts or labor supplied by SMART
Alabama LLC, which is a wholly owned subsidiary of HMC.
This action arises from the Defendants' alleged failure to
disclose to Plaintiff and similarly situated consumers that SMART
has used illegal child labor at its manufacturing plant located in
Montgomery, Alabama, to manufacture car parts provided to HMMA for
the manufacture of Hyundai vehicles.
On July 22, 2022, various news outlets reported that underage
workers, in some cases as young as years old, have recently worked
at SMART's Montgomery, Alabama metal stamping plant.
Reuters reported that the exact number of underage workers at the
SMART plant is unknown, but at least three underage employees have
been identified as having recently worked at the plant this year
and were not attending school.
Reuters further reported that based upon dozens of interviews with
former and current SMART employees, these three identified underage
employees were part of a larger cohort consisting of as many as 50
underage workers at the SMART plant, many of whom have ceased
attending school in order to work long shifts at the plant.
The SMART plant has a documented history of health and safety
violations, including amputation hazards, that make it a dangerous
environment for employees, especially underage laborers who are
prohibited by federal law from working at stamping plants until the
age of 18.
The International Labour Organization has deemed such known
hazardous environments and work around dangerous machinery,
equipment, or tools as one of the "Worst Forms of Child Labor."
Accordingly, the Defendants' conduct described herein violates the
California's Consumer Legal Remedies Act, the California Unfair
Competition Law, the California False Advertising Law, and
constitutes fraudulent concealment under California law, says the
suit.
The Plaintiff Reis purchased a vehicle from the Defendants, which
was used for personal, family and/or household uses. The Plaintiff
Reis would not have purchased the vehicle had she known that the
Defendants used child labor to manufacture the class vehicles.
HMC is a multinational South Korean corporation with over 123,000
employees worldwide. HMC, through its various entities, designs,
manufactures, markets, distributes and sells Hyundai automobiles in
California and throughout the United States.
HMC operates only one manufacturing facilities in the United
States, its subsidiary HMMA, which manufactures Class Vehicles.
HMC's wholly owned subsidiary, SMART, manufactures parts that it
provides to HMMA for the manufacture of Class Vehicles.[BN]
The Plaintiff is represented by:
Joseph G. Sauder, Esq.
Matthew D. Schelkopf, Esq.
SAUDER SCHELKOPF LLC
1109 Lancaster Avenue
Berwyn, PA 19312
E-mail: jgs@sstriallawyers.com
mds@sstriallawyers.com
- and -
Alison M. Bernal, Esq.
NYE, STIRLING, HALE &
MILLER, LLP
33 West Mission Street, Suite 201
Santa Barbara, CA 93101
Telephone: (805) 963-2345
Facsimile: (805) 284-9590
E-mail: alison@nshmlaw.com
INSOMNIA COOKIES: Wilkins Files Suit in E.D. Pennsylvania
---------------------------------------------------------
A class action lawsuit has been filed against Insomnia Cookies,
LLC, et al. The case is styled as Robert Wilkins, individually and
on behalf of all others similarly situated v. Insomnia Cookies,
LLC, Insomnia Cookies Operators, LLC, Case No. 2:22-cv-03040-GAM
(E.D. Pa., Aug. 2, 2022).
The nature of suit is stated as Other Personal Property for
Property Damage.
Insomnia Cookies -- https://insomniacookies.com/ -- is a chain of
bakeries in the United States that specializes in delivering warm
cookies, baked goods, and ice cream.[BN]
The Plaintiff is represented by:
Kenneth J. Grunfeld, Esq.
GOLOMB SPIRT GRUNFELD, P.C.
1835 Market Street, Suite 2900
Philadelphia, PA 19103
Phone: (215) 985-9177
Fax: (215) 985-4169
Email: kgrunfeld@GolombLegal.com
JAN-PRO FRANCHISING: Class of Franchisees Certified in Roman Suit
-----------------------------------------------------------------
In the case, GLORIA ROMAN, GERARDO VAZQUEZ, and JUAN AGUILAR,
Plaintiffs v. JAN-PRO FRANCHISING INTERNATIONAL, INC., Defendant,
Case No. C 16-05961 WHA (N.D. Cal.), Judge William Alsup of the
U.S. District Court for the Northern District of California:
(i) grants in part and denies in part the Plaintiffs' motion
for class certification and motion for summary judgment,
and;
(ii) denies the Defendant's motion for summary judgment as to
all certified issues.
The Plaintiffs performed janitorial services on behalf of the
Defendant. They claim the Defendant misclassified them and the
putative class members as independent contractors. They allege it
violated California minimum wage, overtime, expense reimbursement,
and unlawful deduction laws, and they seek compensation on behalf
of the putative class.
A prior order granted summary judgment in favor of the Defendant as
to the misclassification claim. The Plaintiffs appealed that order.
During the appeal, the California Supreme Court adopted the "ABC
test" for determining employee classification for claims governed
by California wage orders. Thereafter, the court of appeals
directed the parties to brief the effect of Dynamex on the merits.
It certified the issue of whether Dynamex applied retroactively to
the California Supreme Court. The high court answered yes. Based on
that answer and the parties' briefing, the court of appeals vacated
the previous summary judgment order and remanded to consider the
merits in light of Dynamex Operations W., Inc. v. Super. Ct., 4
Cal. 5th 903 (2018).
At all material times, the Defendant has been an international
janitorial cleaning business. It uses a franchising model with
three tiers. The top tier consists of the Defendant. The middle
tier consists of "master franchisees" or "master owners" --
regional, third-party entities -- to whom the Defendant sells
exclusive rights to use the trademarked "Jan-Pro" logo. As of 2009,
there were at least 91 master franchisees in the United States. The
bottom tier consists of "unit franchisees" who contract with master
franchisees to clean businesses. Unit franchisees do not contract
with the Defendant. A given unit franchisee can be an individual or
a few partners, and those persons can hire additional workers to
help them clean.
The Plaintiffs were and are unit franchisees who purchased their
unit franchises from two different master franchisees. Plaintiff
Vazquez purchased a unit franchise from New Venture of San
Bernardino, LLC, for $2,800. Plaintiff Roman purchased a unit
franchise from Connor-Nolan, Inc., for $2,800. Plaintiff Aguilar,
with a business partner, also purchased a unit franchise from
Connor-Nolan, for which he and his partner paid $9,000.
Cleaning customers (CCs) pay master franchisees (MFs) for cleaning
services based on "pricing agreements" between them. For some
cleaning customers, master franchisees supplement the pricing
agreements with "bid worksheets," which show calculations of
cleaning costs. Master franchisees then pay unit franchisees (UFs)
from that revenue (because unit franchisees do the cleaning), with
the exception that master franchisees deduct and pay four percent
of that revenue to the Defendant.
The Plaintiffs seek to certify the following class: All unit
franchisees who have signed franchise agreements with master
franchisees in the state of California and have performed cleaning
services for defendant since Dec. 12, 2004.
Judge Alsup explains that when a wage order encompasses a labor
code claim (or a discrete issue within a claim), courts determine
employee classification under Dynamex for purposes of that claim or
issue. When the wage orders do not cover a labor code claim (or a
discrete issue within a claim), such as expense reimbursements for
gas and tolls, courts determine employee classification under
Borello for purposes of that claim or issue.
Given this legal framework, first, Judge Alsup applies the FRCP
23(a) criteria (numerosity, commonality, typicality, and adequacy)
to the misclassification claim and simultaneously to the labor code
claims. He finds the FRCP 23(a) criteria satisfied for all claims.
He says (i) given there were many master franchisees in California,
numerosity is satisfied; (ii) the common misclassification
contention is necessarily central to the labor code claims because
no class member can recover if the Defendant's classification of
unit franchisees as independent contractors was proper; (iii) the
Plaintiffs and the putative class members allege the same injuries
arising from the same conduct; and (iv) the Plaintiffs' counsel
have vigorously litigated the case.
Second, Judge Alsup considers whether the Plaintiffs have met their
burden under FRCP 23(b)(3) to establish predominance and
superiority as to the misclassification question under (1) Dynamex
and (2) S. G. Borello & Sons, Inc. v. Dep't of Indus. Rels., 48
Cal.3d 341 (1989). Those considerations show that the Plaintiffs
satisfy FRCP 23(b)(3) for the misclassification question under
Dynamex, but not under Borello, he holds.
Judge Alsup finds that the policies within the template agreement
were applicable to all unit franchisees. Those common policies will
help to adjudicate the misclassification question. For the same
reasons, it would be inefficient to try the misclassification issue
on an individual basis for the numerous putative class members when
common questions predominate. Accordingly, the Plaintiffs have
satisfied FRCP 23(b)(3) as to the misclassification claim under
Dynamex. The misclassification claim under Dynamex is certified and
certification of the misclassification claim under Borello is
denied.
Judge Alsup then applies FRCP 23(b)(3) to each of the labor code
claims that rely on misclassification under Dynamex. He finds that
those applications show that the Plaintiffs satisfy FRCP 23(b)(3)
for only the following labor code issues: (1) failure to pay
minimum wage for mandatory training; (2) failure to reimburse for
expenses incurred for (a) required uniforms, and (b) necessary
cleaning supplies and equipment; and (3) unlawful deductions of (a)
management fees, and (b) sales and marketing fees.
Third, Judge Alsup considers whether summary judgment is
appropriate, on a class-wide basis, for the Plaintiffs or for the
Defendant as to the misclassification claim under Dynamex. He finds
that those considerations show summary judgment in favor of the
Plaintiffs is warranted as to the misclassification claim under
Dynamex. Summary judgment for the Plaintiffs on the
misclassification claim under Dynamex is granted and the
Defendant's motion for summary judgment as to misclassification
under Dynamex is denied.
Fourth, Judge Alsup considers whether summary judgment is
appropriate as to the certified labor code issues. He says, those
considerations show summary judgment in favor of the Plaintiffs is
appropriate as to all certified labor code issues. Thus, as to the
Plaintiffs' motion for summary judgment, there is no genuine
dispute of material fact, and summary judgment in favor of
plaintiffs on the mandatory training issue is granted. The
Defendant's motion for summary judgment fails to meet its burden
and, as to the mandatory training issue, is denied.
As to the Plaintiffs' motion for summary judgment, there is no
genuine dispute of material fact, and summary judgment in favor of
the Plaintiffs for reimbursement for uniforms and cleaning supplies
is granted. The Defendant's motion for summary judgment fails to
meet its burden and, as to those issues, is denied.
In turn, as to the Plaintiffs' motion for summary judgment, there
is no genuine dispute of material fact, and summary judgment in
favor of the Plaintiffs for management fees and sales and marketing
fees is granted. The Defendant's motion for summary judgment fails
to meet its burden and, as to those issues, is denied.
Fifth, Judge Alsup denies as moot both parties' motions for summary
judgment regarding itemized wage statements. The Plaintiffs request
damages for the Defendant's failure to provide itemized wage
statements under Labor Code Section 226. This issue is governed by
Wage Order 5-2001(7). But the Plaintiffs failed to claim such a
violation in the operative complaint. Judge Alsup construes the
Plaintiffs' actions as a request to amend pursuant to FRCP 15(b),
but he denies that request for undue delay and prejudice to the
Defendant. Thus, the Section 226 issue is not certifiable.
Judge Alsup certifies: (1) the Plaintiffs' minimum wage claim, but
only as to the issue of mandatory training; (2) their expense
reimbursement claim, but only as to the issues of (a) required
uniforms, and (b) necessary cleaning supplies and equipment; and
(3) their unlawful deduction claim, but only as to the issues of
(a) management fees, and (b) sales and marketing fees.
Certification of the overtime claim and other issues deriving from
the minimum wage, expense reimbursement, and unlawful deduction
claims is denied. Certification of a claim for itemized wage
statements is denied as moot.
For the foregoing reasons, and to the extent stated in the Order,
Judge Alsup grants in part and denies in part the Plaintiffs'
motion for class certification and their motion for summary
judgment; and denies the Defendant's motion for summary judgment as
to all certified issues.
Specifically, he grants the Plaintiffs' motion for class
certification as to (1) failure to pay minimum wage for mandatory
training, (2) failure to reimburse for expenses incurred for (a)
required uniforms and (b) necessary cleaning supplies and
equipment, and (3) unlawful deductions of (a) management fees and
(b) sales and marketing fees for the following group: All unit
franchisees who signed a franchise agreement with a master
franchisee in the state of California and who performed cleaning
services for defendant from Dec. 12, 2004, to the latest date on
which a named plaintiff terminated employment. The limit on the
class period is proper because the Plaintiffs cannot show that
their experience was similar to that of persons who worked for the
Defendant after the last of them was terminated. He denies class
certification as to the remaining labor code claims and issues.
Judge Alsup grants summary judgment in favor of the Plaintiffs on
all certified issues. As to Labor Code Section 226, he denies as
moot both parties' motions for summary judgment. A separate order
on the instant briefing will resolve the parties' motions for
summary judgment as to the uncertified, individual claims and
issues that remain.
The parties will please provide a form of class notice for
approval. They will also provide a plan of distribution (which must
include first-class mail) and a timetable for distribution of
notice and for opt outs. Given the need for these steps, trial and
the pretrial conference will not be held in September. Those events
will be set for early 2023. The counsel will meet and confer and
propose a window of trial dates convenient to both sides.
A full-text copy of the Court's Aug. 2, 2022 Order is available at
https://tinyurl.com/283vpksp from Leagle.com.
JAN-PRO FRANCHISING: Wins Bids for Summary Judgment in Roman Suit
-----------------------------------------------------------------
In the case, GLORIA ROMAN, GERARDO VAZQUEZ, and JUAN AGUILAR,
Plaintiffs v. JAN-PRO FRANCHISING INTERNATIONAL, INC., Defendant,
Case No. C 16-05961 WHA (N.D. Cal.), Judge William Alsup of the
U.S. District Court for the Northern District of California issued
an order:
a. granting summary judgment in favor of Plaintiff Vazquez as
to his individual minimum wage claim for cleaning work;
b. granting summary judgment in favor of the Defendant as to
Plaintiff Roman's individual minimum wage claim for
cleaning work;
c. denying both parties' motions for summary judgment as to
Plaintiff Aguilar's individual minimum wage claim for
cleaning work;
d. granting the summary judgment in favor of the Plaintiffs as
to all their claims for travel time pay;
e. denying both parties' motions for summary judgment as to
all of the Plaintiffs' individual overtime claims; and
f. denying both parties' motions for summary judgment as to
all of the Plaintiffs' individual claims for expense
reimbursements and unlawful deductions.
At all material times, the Defendant has been an international
janitorial cleaning business. It uses a franchising model with
three tiers. The top tier consists of the Defendant. The middle
tier consists of "master franchisees" or "master owners" --
regional, third-party entities -- to whom the Defendant sells
exclusive rights to use the trademarked "Jan-Pro" logo. As of 2009,
there were at least 91 master franchisees in the United States. The
bottom tier consists of "unit franchisees" who contract with master
franchisees to clean businesses. Unit franchisees do not contract
with defendant. A given unit franchisee can be an individual or a
few partners, and those persons can hire additional workers to help
them clean.
The Plaintiffs were and are unit franchisees who purchased their
unit franchises from two different master franchisees. Plaintiff
Vazquez purchased a unit franchise from New Venture of San
Bernardino, LLC, for $2,800. Plaintiff Roman purchased a unit
franchise from Connor-Nolan, Inc., for $2,800. Plaintiff Aguilar,
with a business partner, also purchased a unit franchise from
Connor-Nolan, for which he and his partner paid $9,000.
The general structure of the Defendant's three-tier business is as
follows: Cleaning customers pay master franchisees for cleaning
services based on "pricing agreements" between them. For some
cleaning customers, master franchisees supplement the pricing
agreements with "bid worksheets," which show calculations of
cleaning costs. Master franchisees then pay unit franchisees from
that revenue (because unit franchisees do the cleaning), with the
exception that master franchisees deduct and pay four percent of
that revenue to the Defendant. Unit franchisees each pay master
franchisees a franchise fee. Then, master franchisees pay ten
percent of the franchise fee to the Defendant. Additionally, master
franchisees profit by collecting other fees from unit franchisees,
such as "management fees" and "sales and marketing fees," which the
Defendant does not collect.
As to the relevant legal framework of the Defendant's business, the
Industrial Welfare Commission of California publishes wage orders
that regulate the hours, wages, and working conditions of
California employees. The wage orders encompass some, but not all,
of the provisions in the labor code.
Whether a wage order encompasses a labor code claim dictates the
applicable misclassification test. When a wage order encompasses a
labor code claim (or a discrete issue within a claim), courts
determine employee classification under Dynamex for purposes of
that claim or issue. When the wage orders do not cover a labor code
claim (or a discrete issue within a claim), such as expense
reimbursements for gas and tolls, courts determine employee
classification under Borello for purposes of that claim or issue,
citing Dynamex Operations W., Inc. v. Super. Ct. of L.A. Cnty., 4
Cal. 5th 903, 915-16 n. 5 (2018); and S. G. Borello & Sons, Inc. v.
Dep't of Indus. Rels., 48 Cal.3d 341, 350-51 (1989).
In this wage-and-hour class action involving misclassification of
janitorial workers, the Plaintiffs previously moved for class
certification and summary judgment as to all claims. The Defendant
also moved for summary judgment as to all claims. A prior order
granted in part and denied in part plaintiffs' motion for class
certification. That order granted summary judgment in favor of
plaintiffs as to all certified issues. Namely, it found that all of
the Defendant's janitorial workers were employees for purposes of
the California wage orders. And, it found the Defendant liable for
mandatory training pay, reimbursement for necessary expenses
covered under the California wage orders, and pay for unlawful
deductions covered under the California wage orders. It denied the
Plaintiffs' request to amend the complaint to include a claim
regarding itemized wage statements.
The prior order, however, did not consider summary judgment as to
the following uncertified, individual labor code issues that remain
in this action: minimum wages for cleaning work and travel time;
overtime wages for cleaning work; reimbursement for necessary
expenses not covered under the California wage orders; and pay for
unlawful deductions not covered under the California wage orders.
Judge Alsup now considers whether summary judgment is appropriate
as to each remaining, uncertified labor code issue for each
Plaintiff.
Wage Order 5-2001(4) encompasses claims for minimum wage under
Labor Code Section 1194. Thus, Judge Alsup considers
misclassification under Dynamex for purposes of minimum wage.
Because a prior order found all unit franchisees, including the
Plaintiffs, to have been employees under Dynamex, the Plaintiffs
are entitled to minimum wage.
First, he finds that the evidence shows Plaintiff Roman's rate of
pay was greater than the minimum wage in her heaviest workweeks,
regardless of whether this order uses her declaration or the bid
worksheets to estimate that rate. So, summary judgment in favor of
the Defendant on Plaintiff Roman's claim for minimum wage for
cleaning work is granted. Next, Judge Alsup finds that there is a
genuine dispute of material fact as to Plaintiff Aguilar's rate of
pay. Hence, both parties' motions for summary judgment as to
Plaintiff Aguilar's individual minimum wage claim for cleaning work
are denied.
Judge Alsup also finds at all relevant times, Plaintiff Vazquez
earned less than minimum wage for cleaning Supercuts. The Defendant
is liable to him, therefore, for failure to pay minimum wage.
Plaintiff Vazquez may have earned less than minimum wage for work
at other customer locations as well. The extent to which the
Defendant is liable, i.e., damages, can be adjudicated in a later
phase. So, summary judgment in favor of Plaintiff Vazquez on his
claim for minimum wage for cleaning work is granted.
A prior order found that travel time during the workday is governed
by the wage orders. Because that order also found all unit
franchisees, including the Plaintiffs, to have been employees under
Dynamex, Judge Alsup holds that the Plaintiffs are entitled to
minimum wage for travel time.
As to all of the Plaintiffs' individual motions for summary
judgment, there is no genuine dispute of material fact, and summary
judgment in favor of the Plaintiffs as to minimum wage for travel
time is granted. The Defendant's motion for summary judgment fails
to meet its burden and, as to the travel time issue, is denied. To
the extent that the Plaintiffs altered their schedules or sent
other persons to customer locations in their place, those issues
can be dealt with at the damages stage.
Wage Order 5-2001(3) encompasses claims for overtime under Labor
Code Section 510. Thus, Judge Alsup considers misclassification
under Dynamex for purposes of overtime. Because a prior order found
all unit franchisees, including the Plaintiffs, to have been
employees under Dynamex, he says, the Plaintiffs are entitled to
overtime pay.
As to all Plaintiffs, however, the Defendant argues it is not
liable for overtime pay because it had no knowledge of unit
franchisees' overtime work. It cites Forrester v. Roth's I. G. A.
Foodliner, Inc. in support of its position, which stated that "an
employer who knows or should have known that an employee is or was
working overtime" must comply with overtime pay laws.
Judge Alsup finds that there is a genuine dispute of material fact
as to whether the Defendant should have known the Plaintiffs were
working overtime. The Defendant especially should not benefit from
its failure to maintain adequate records of work hours. Thus, as to
all of the Plaintiffs' individual overtime claims, the parties'
motions for summary judgment are denied.
The California wage orders do not encompass any of the remaining,
individual expense reimbursement and unlawful deduction issues --
reimbursements for gas and insurance premiums, and deductions of
franchise fees, cleaning revenue fees, chargeback fees (i.e.,
service fees), and insurance fees. The Plaintiffs' classification
status for those issues, therefore, relies on the Borello
standard.
Judge Alsup holds that the right to control test under Borello
reveals conflicting evidence. The Borello factors, moreover,
provide mixed answers on the classification question. Thus, whether
the Plaintiffs were misclassified under Borello is a question
suitable for jury determination. Hence, both parties' motions for
summary judgment as to all of the Plaintiffs' individual claims for
expense reimbursements and unlawful deductions are denied.
A trial on class damages for the certified issues (not discussed in
the Order) will be set for early 2023. Thus, the trial on remaining
liability and damages issues for the individual claims and issues
discussed will immediately follow the class damages trial. The
final pretrial conferences will be held together. To simplify
matters, both sides are requested to stipulate to a bench trial as
to the remaining individual claims and issues (the class issues
will be by jury). The parties are to advise in the final pretrial
statement whether both sides so agree.
A full-text copy of the Court's Aug. 2, 2022 Order is available at
https://tinyurl.com/3v3k6vwb from Leagle.com.
JMCR SAFETY: Fails to Provide Proper Overtime Wages, Escobar Says
-----------------------------------------------------------------
WILMER ESCOBAR, DEONICIO LOPEZ-MAGANA, JOSE MARTINEZ ALVAREZ, RAUL
URIAS, HUGO GARCIA CRUZ, ERIC LOPEZ and NICOLAS ASCENCIO on behalf
of themselves and others similarly situated v. JOSE R. HERNANDEZ
and JMCR SAFETY SURFACING CORP., Case No. 2:22-cv-04482 (E.D.N.Y.,
July 29, 2022) seeks to recover unpaid wages for overtime work
performed, liquidated damages, attorneys' fees, interest, and all
costs and disbursements associated with this action pursuant to the
Fair Labor Standards Act and the New York Labor Law.
The Plaintiffs largely reside in Nassau County, New York. They
bring these claims as a collective action pursuant to FLSA Section
16(b), 29 U.S.C. 216(b), on behalf of all non-exempt persons
employed by the Defendants at any New York on or after the date
that is three years before the filing of the Complaint in this
case.
JMCR SAFETY SURFACING CORP. is a company that provides surfaces,
mostly for playgrounds, throughout the U.S.[BN]
The Plaintiff is represented by:
Marcus Monteiro, Esq.
MONTEIRO & FISHMAN LLP
91 N. Franklin Street, Suite 108
Hempstead, NY 11550
Telephone: (516) 280-4600
Facsimile: (516) 280-4530
E-mail: mmonteiro@mflawny.com
JOHNSON & JOHNSON: Deal in Remicade Antitrust Suit Wins Prelim. Nod
-------------------------------------------------------------------
In the case, IN RE REMICADE ANTITRUST LITIGATION, Civil Action No.
17-cv-04326 (E.D. Pa.), Judge Karen Spencer Marston of the U.S.
District Court for the Eastern District of Pennsylvania grants the
Plaintiffs' Uncontested Motion for an Order Certifying a Settlement
Class; Granting Preliminary Approval of the Settlement Agreement;
Appointing Class Counsel; Appointing a Settlement Administrator and
Escrow Agent; and Approving the Form and Manner of Notice to the
Settlement Class.
The lawsuit is a consolidated, putative class indirect-purchaser
antitrust action in which Named Plaintiffs Local 295 Employer Group
Welfare Fund and National Employees Health Plan allege that
Defendants Johnson & Johnson and Janssen Biotech, Inc. engaged in
anticompetitive conduct related to their infliximab biologic,
Remicade, in violation of federal and state antitrust laws and
state consumer protection laws.
In 2017, three putative class indirect-purchaser antitrust actions
were filed against the Defendants, alleging that the Defendants had
violated an array of state and federal antitrust and state consumer
protection laws and engaged in anticompetitive conduct in
connection with the sale and marketing of Remicade. On Nov. 21,
2017, the actions were consolidated under the caption In re
Remicade Antitrust Litigation, No. 2:17-cv-04326.
On Jan. 23, 2018, the Court appointed Robbins Geller Rudman & Dowd
LLP as Interim Class Counsel and Jayne A. Goldstein of Shepherd,
Finkelman, Miller & Shah LLP as Interim Liaison Counsel. On Feb.
21, 2018, the Plaintiffs filed a Consolidated Amended Complaint
("CAC") on behalf of the class.
In the CAC, the Plaintiffs alleged that the Defendants "worked to
suppress competition and raise prices to purchases of Remicade by
imposing a web of exclusionary contracts on both health insurers
and healthcare providers" and "engaged in other anticompetitive
conduct." They asserted causes of action for violations of Section
2 of the Sherman Antitrust Act, 15 U.S.C. Section 2 (monopolization
and attempted monopolization of the relevant product market)
(Counts I and II); violation of Section 1 of the Sherman Antitrust
Act, 15 U.S.C. Section 1 (unreasonable restraint of trade) (Count
III); violation of Section 1 of the Clayton Act, 15 U.S.C. Section
14 (unlawful exclusive dealing) (Count IV); violation of state
antitrust statutes (Count V); violation of state law for Walker
Process fraud (Count VI); and violation of state consumer
protection statutes (Count VII).
On April 9, 2018, the Defendants filed a motion to dismiss, which
the Court granted in part and denied in part on Dec. 7, 2018.
Following over four years of litigation, including extensive fact
and expert discovery and several weeks' worth of arms-length
settlement negotiations, the parties entered into a Stipulation of
Class Action Settlement on April 15, 2022. The Plaintiffs filed the
unopposed Motion that same day. The Court held a hearing on the
Motion on July 28, 2022.
The Settlement Class consists of "all persons and entities in the
United States and its territories who indirectly purchased, paid
and/or provided reimbursement for some or all of the purchase price
of the Defendants' infliximab between April 5, 2016 and Feb. 28,
2022."
The Defendants will deposit $25 million into a Settlement Fund for
the benefit of the Class. The Net Settlement Fund amount will be
determined by "subtracting any court-approved award of attorneys'
fees and expenses, service awards, settlement administrators'
costs, taxes and tax expenses, and any other Court-approved
deduction from the total Settlement Fund of $25 million." It will
be distributed to Class Members pursuant to the Plan of Allocation
and Distribution.
To be eligible for a distribution, a Class Member must submit a
Claim Form. Claim Forms will be due 120 days after entry of the
Preliminary Approval Order. If an Authorized Claimant's
Distribution Amount is less than $25, no distribution will be made
to that claimant.
After the Net Settlement Fund is distributed among the Class in
accordance with the Plan of Allocation and Distribution, any
remaining balance will be reallocated among the Class Members and,
afterwards, any de minimis balance of the Net Settlement Fund will
be donated to the Crohn's & Colitis Foundation or another approved
non-profit organization.
The parties have chosen Giraldi & Co., LLC to serve as the
Settlement "Selected States" include Arizona, Arkansas, California,
District of Columbia, Florida, Hawaii, Iowa, Kansas, Maine,
Michigan, Minnesota, Mississippi, Montana, Nebraska, Nevada, New
Hampshire, New Mexico, New York, North Carolina, North Dakota,
Oregon, Rhode Island, South Dakota, Tennessee, Utah, Vermont, West
Virginia, and Wisconsin. Administrator and Huntington Bank to serve
as the Escrow Agent. Gilardi will establish a website and a
toll-free number to allow Class Members to obtain information about
the Settlement. Notice will be completed within 60 days after entry
of the Preliminary Approval Order.
Giraldi has outlined plans for notice to third-party payors
("TPPs") and to consumers. As for notice to TPPs, Gilardi will send
notice via email to all TPPs in its database, which is
approximately 26,000 contacts The email will contain the notice in
the body of the email and will also contain a link to the
settlement website. If an email bounces back or is known not to
have successfully been delivered, Gilardi will send a single
postcard notice via the United States Postal Service (USPS) to the
TPP's corresponding postal address." Further, Gilardi will send one
postcard notice via USPS to all TPP entities for which it possesses
a postal address (approximately 24,000 contacts). Gilardi will also
advertise digital notices on trade websites and in digital trade
e-newsletters. As for notice to consumers, a summary notice will
appear in the national edition of People magazine, both online and
print editions, which reaches 11.6% of the target audience.
Moreover, "over 67.2 million internet impressions will be purchased
programmatically and distributed over various websites," including
Facebook. Gilardi's digital specialists will routinely monitor
these digital media campaigns.
In addition to these TPP and consumer notice plans, Gilardi will
also contact various organizations and provide them with
information regarding the settlement and ask them to share the
information with their audiences. It will also research support
groups (e.g., the REMICADE (infliximab) Users and Support Group on
Facebook) and post messages to their respective pages. Further,
Gilardi will issue a national press release.
Class Members will have an opportunity to either opt out10 of the
Settlement or to object and/or intervene by following the
procedures set forth in the Settlement Agreement and Notice.
Objections and opt-outs are due 120 days after entry of the
Preliminary Approval Order.
After the Settlement is finally approved, the Settlement Class will
release the Defendants from claims and causes of action arising
before Feb. 28, 2022 related to "any antitrust, unfair competition,
consumer protection, Lanham Act or similar common law cause of
action regarding Remicade, Inflectra, or any other infliximab
product." Claims to enforce the terms of the Settlement Agreement
are not released.
All potential classes must initially satisfy four prerequisites to
be certified under Rule 23(a) of the Federal Rules of Civil
Procedure: (1) numerosity, (2) commonality, (3) typicality, and (4)
adequacy of the representation. If the Rule 23(a) conditions are
met, then a case may proceed as a class action if one of the
conditions of Rule 23(b) is also satisfied. The Plaintiffs seek
certification for a class under Rule 23(b)(3), which requires that
"the court finds that the questions of law or fact common to class
members predominate over any questions affecting only individual
members, and that a class action is superior to other available
methods for fairly and efficiently adjudicating the controversy."
The Plaintiffs propose that the Settlement Class consist of "all
persons and entities in the United States and its territories who
indirectly purchased, paid and/or provided reimbursement for some
or all of the purchase price of Defendants' infliximab between
April 5, 2016 and Feb. 28, 2022."
This class meets all six requirements of Rules 23(a) and 23(b),
Judge Marston holds. She finds that (i) the Settlement Class is
sufficiently large to satisfy the numerosity requirement.; (ii) the
commonality is met because each Class Member's claim depends on
whether the Defendants unlawfully engaged in anticompetitive
behavior; (iii) because the Named Plaintiffs' and the Class
Members' claims arise out of the same conduct and are based on the
same legal theories -- i.e., the Defendants' alleged
anticompetitive behavior related to Remicade and whether they
violated antitrust and consumer protection laws, resulting in
suppressed competition and artificially inflated prices -- the
typicality factor is satisfied; (iv) the Named Plaintiffs have
standing and do not have interests antagonistic to the Settlement
Class; and (v) the proposed Class Counsel -- Robbins Geller Rudman
& Dowd LLP -- is qualified to "fairly and adequately represent the
interests of the class."
Judge Marston further finds that (i) the common issues of law and
fact predominate over any individual differences, such as the
amount of compensation that each member will be entitled to under
the settlement's distribution plan and (ii) class-wide adjudication
is superior because individual consumer class members are likely to
have small claims in relation to the cost of litigating the
lawsuit.
Judge Marston appoints Local 295 Employer Group Welfare Fund and
National Employees Health Plan as the representatives of the
Settlement Class; Robbins Geller is appointed as the Class Counsel;
and Gilardi as the Settlement Administrator.
After review of the proposed Settlement Agreement and the proposed
Notice, Judge Marston is satisfied that the proposed settlement
meets the criteria for preliminary approval. In the preliminary
approval phase, the Court is tasked only with determining whether
"the proposed settlement discloses grounds to doubt its fairness or
other obvious deficiencies such as unduly preferential treatment of
class representatives or segments of the class, or excessive
compensation of attorneys, and whether it appears to fall within
the range of possible approval." The proposed settlement at issue
does not raise any doubts as to fairness or otherwise reveal any
deficiencies. Judge Marston preliminarily approves the parties'
proposed settlement agreement.
In light of the foregoing, Judge Marston is satisfied that
preliminary approval is appropriate. Accordingly, she grants the
Plaintiffs' Motion. The Final Settlement Hearing is scheduled for
Feb. 27, 2023, at 2:00 p.m.
An appropriate Order follows.
A full-text copy of the Court's Aug. 2, 2022 Memorandum is
available at https://tinyurl.com/343nv2d7 from Leagle.com.
LINCARE HOLDINGS: Eichman Suit Removed to E.D. California
---------------------------------------------------------
The case styled as Kenneth Eichman, an individual, and on behalf of
classes of similarly situated individuals v. Lincare Holdings Inc.,
Lincare Inc., Lincare Pharmacy Services Inc., Case No. 22C-0225 was
removed from Supreme Court of the Kings County Superior Court -
Hanford Courthouse, to the U.S. District Court for the Eastern
District of California on Aug. 4, 2022.
The District Court Clerk assigned Case No. 1:22-cv-00973-AWI-EPG to
the proceeding.
The nature of suit is stated as Other Contract for Breach of
Contract.
Lincare Holdings Inc. -- https://www.lincare.com/ -- is a provider
of oxygen and other respiratory therapy services to patients in the
home.[BN]
The Plaintiff is represented by:
Kiley Grombacher, Esq.
Lirit Ariella King, Esq.
Marcus Bradley, Esq.
BRADLEY/GROMBACHER, LLP
31365 Oak Crest Dr., Suite 240
Westlake Village, CA 91361
Phone: (805) 270-7100
Email: kgrombacher@bradleygrombacher.com
lking@bradleygrombacher.com
mbradley@bradleygrombacher.com
The Defendants are represented by:
Alyssa Michelle Engstrom, Esq.
Wesley D. Hurst, Esq.
POLSINELLI LLP
2049 Century Park East, Ste. 2900
Los Angeles, CA 90067
Phone: (310) 556-1801
Email: aengstrom@polsinelli.com
whurst@polsinelli.com
LINCARE HOLDINGS: Fails to Secure Patients' Info, Juarez Suit Says
------------------------------------------------------------------
Victor Juarez, on behalf of himself and all others similarly
situated v. LINCARE HOLDINGS INC., Case No. 8:22-cv-01704-MSS-MRM
(M.D. Fla., July 28, 2022) alleges that Lincare did not adequately
protect and secure patient personally identifiable information and
personal health information leaving the data an unguarded target
for theft and misuse.
According to the complaint, Lincare's failures allowed
cybercriminals to steal patient data. Lincare, one of the leading
respiratory care providers in the United States operating, in
approximately 1,000 locations, lost control over its patients'
highly sensitive medical and personal information in a data breach
by cybercriminals (Data Breach). The Data Breach compromised the
PII and PHI of patients in its system. As a result, patients are at
risk of identity theft and harm, says the suit.
Plaintiff Juarez was a victim of the Data Breach and brings this
Class Action lawsuit on behalf of himself and all California
citizens who are current or former Lincare patients and victims of
the Data Breach.
On September 26, 2021, Lincare learned that cybercriminals breached
its data systems and potentially accessed patients' PII and PHI.
Lincare purportedly spent over nine months investigating the
breach, but it has nonetheless failed to identify exactly what the
cybercriminals stole and from which patients. The investigation
did, however, reveal that hackers began accessing Lincare's data
systems on September 10, 2021 and continued to have access to
Lincare's systems through September 29, 2021, the suit further
asserts.
Lincare is a leading provider of in-home respiratory care,
providing oxygen, durable medical equipment, and other respiratory
care products and services to patients in their homes, nursing
homes, and hundreds of Lincare centers across the country.[BN]
The Plaintiff is represented by:
Jonathan B. Cohen, Esq.
Alexandra Honeycutt, Esq.
Gary M. Klinger, Esq.
MILBERG COLEMAN BRYSON PHILLIPS
GROSSMAN, PLLC
100 Garden City Plaza, Suite 500
Garden City, NY 11530
Telephone: (212) 594-5300
E-mail: jcohen@milberg.com
ahoneycutt@milberg.com
gklinger@milberg.com
LORDSTOWN CONSTRUCTION: Nagy Files Suit in N.D. Ohio
----------------------------------------------------
A class action lawsuit has been filed against Lordstown
Construction Recovery, LLC. The case is styled as Mari Nagy, on
behalf of herself and all others similarly situated v. Lordstown
Construction Recovery, LLC, Case No. 4:22-cv-01376-BYP (N.D. Ohio,
Aug. 4, 2022).
The nature of suit is stated as Other Real Property for Property
Damage.
Lordstown Construction Recovery --
https://www.lordstownlandfill.com/ -- is a state of the art
demolition and construction debris landfill located in Lordstown
Ohio.[BN]
The Plaintiff is represented by:
Daniel P. Petrov, Esq.
THORMAN PETROV GROUP
20046 Walker Avenue
Shaker Heights, OH 44122
Phone: (216) 621-3500
Fax: (216) 621-3422
Email: dpetrov@tpgfirm.com
MARS INCORPORATED: Scruggs Files Suit in C.D. California
--------------------------------------------------------
A class action lawsuit has been filed against Mars, Incorporated.
The case is styled as Brent Scruggs, individually, and on behalf of
all others similarly situated v. Mars, Incorporated, Case No.
2:22-cv-05617-JAK-AFM (C.D. Cal., Aug. 9, 2022).
The nature of suit is stated as Other Fraud.
Mars, Incorporated -- https://www.mars.com/ -- is an American
multinational manufacturer of confectionery, pet food, and other
food products and a provider of animal care services.[BN]
The Plaintiff is represented by:
Robert Abiri, Esq.
CUSTODIO AND DUBEY LLP
445 South Figueroa Street Suite 2520
Los Angeles, CA 90071
Phone: (213) 593-9095
Fax: (213) 785-2899
Email: abiri@cd-lawyers.com
MCG HEALTH: Faces Taylor Class Suit Over Alleged Data Breach
------------------------------------------------------------
TIFFANY TAYLOR, individually and on behalf of all others similarly
situated v.MCG HEALTH, LLC, a Washington limited liability company;
DOES 1 to 100, inclusive, Case No. 5:22-cv-01359-SSS-SHK (C.D.
Cal., July 29, 2022) is a class action suit to secure redress
against MCG for its reckless and negligent violation of the
Plaintiff and Class Members privacy rights.
The Plaintiff and Class Members are patients and former patients of
MCG customer hospitals who had their PII and PHI collected, stored
and ultimately breached by MCG.
In or around December of 2021, MCG had their data servers breached
by unauthorized third-party hackers, who stole the highly sensitive
personal and medication information of 1,100,000 individuals across
the country. MCG is a technology vender that provides patient care
guidelines and clinical guidance software to hospitals and
healthcare providers across the United States. As a result, MCG
collects and stores the Personal Identifying Information ("PII")
and Protected Health Information ("PHI") of hundreds of patients
each day, says the suit.
Under statute and regulation, MCG had a duty to implement
reasonable, adequate industry-standard data security policies
safeguards to protect patient PII and PHI. MCG failed to do so,
despite specifically promising in its privacy policy that it would
use "reasonable efforts to protect your information" using "a
variety of security technologies and procedures to protect
information from unauthorized access, use or disclosure."
The Plaintiff and Class Members have suffered injuries and damages.
As a result of MCG's wrongful actions and inactions, Plaintiff and
Class Members' names, social security numbers, medical codes,
postal addresses, telephone numbers, email addresses, dates of
birth and gender have all been compromised.
The Plaintiff is a California resident residing in Victorville,
California. The Plaintiff is a former patient of Desert Valley
Hospital, who is a customer of MCG. On or around June 20, 2022,
Plaintiff received a data breach notice from MCG informing her that
her personal information, including her name, social security
number, medical code, postal address, telephone number, email
address, date of birth and gender, had been implicated in the data
breach.
MCG is a HIPAA business associate that provides informed care
strategies and clinical guidance software to hospitals and
healthcare providers using artificial intelligence technology. In
providing it's services, MCG collects and stores patient PII and
PHI from its customers.[BN]
The Plaintiff is represented by:
Thiago M. Coelho, Esq.
Robert J. Dart, Esq.
Jesse S. Chen, Esq.
WILSHIRE LAW FIRM, PLC
3055 Wilshire Blvd., 12th Floor
Los Angeles, CA 90010
Telephone: (213) 381-9988
Facsimile: (213) 381-9989
E-mail: thiago@wilshirelawfirm. com
rdart@wilshirelawfirm. com
jchen@wilshirelawfirm. com
MCG HEALTH: Fails to Protect Patients' Personal Info, Hensley Says
------------------------------------------------------------------
KENNETH HENSLEY, as legal guardian of R.H., individually and on
behalf of all others similarly situated, Plaintiff v. MCG HEALTH,
LLC, a Washington limited liability company, Defendant, Case No.
2:22-cv-00978 (W.D. Wash., July 15, 2022) is brought against the
Defendant for negligence, breach of third-party beneficiary
contract, breach of implied contract, invasion of privacy, breach
of fiduciary duty of confidentiality, declaratory and injunctive
relief, and violation of the Washington Consumer Protection Act.
According to the complaint, on March 25, 2022, MCG Health
determined that cybercriminals had previously gained unauthorized
access to its systems and acquired confidential personal
information about patients and members whose information was stored
on MCG Health's systems. The patient and member information
obtained by cybercriminals includes: names, dates of birth, Social
Security numbers, medical codes, addresses, telephone numbers,
email addresses, gender, and potentially other PII and PHI
collected and stored by Defendant. Following a forensic
investigation, MCG Health determined that cybercriminals accessed
and acquired the personally identifiable information (PII) and
protected health information (PHI) of approximately 1,100,000
patients and members during the data breach, says the suit.
Allegedly, the Defendant's misconduct -- failing to implement
adequate and reasonable data security measures to protect
Plaintiff's and Class members' PHI and PII, failing to timely
detect the data breach, failing to take adequate steps to prevent
and stop the data breach, failing to disclose the material facts
that it did not have adequate security practices and employee
training in place to safeguard the PHI and PII, failing to honor
its promises and representations to protect Plaintiff's and Class
members' PHI and PII, and failing to provide timely and adequate
notice of the Data Breach -- caused substantial harm and injuries
to Plaintiff and Class members across the United States, the suit
adds.
The Plaintiff is a recipient of a letter from MCG Health dated June
10, 2022, advising that his minor child R.H.'s information was
acquired by cybercriminals in the data breach.
MCG Health, LLC provides patient care guidelines to health care
providers and health plans, including care strategies, consulting,
analytics, and other services.[BN]
The Plaintiff is represented by:
Jason T. Dennett, Esq.
Rebecca L. Solomon, Esq.
TOUSLEY BRAIN STEPHENS PLLC
1200 Fifth Avenue, Suite 1700
Seattle, WA 98101-3147
Telephone: (206) 682-5600
Facsimile: (206) 682-2992
E-mail: jdennett@tousley.com
rsolomon@tousley.com
- and -
William B. Federman, Esq.
FEDERMAN & SHERWOOD
10205 North Pennsylvania Avenue
Oklahoma City, OK 73120
Telephone: (405) 235-1560
Facsimile: (405) 239-2112
E-mail: wbf@federmanlaw.com
- and -
A. Brooke Murphy, Esq.
MURPHY LAW FIRM
4116 Will Rogers Pkwy, Suite 700
Oklahoma City, OK 73108
Telephone: (405) 389-4989
E-mail: abm@murphylegalfirm.com
MCG HEALTH: Fails to Secure Patients' Personal Info, Taylor Says
----------------------------------------------------------------
TIFFANY TAYLOR, individually and on behalf of all others similarly
situated v. MCG HEALTH, LLC, a Washington limited liability
company; DOES 1 to 100, inclusive, Case No. 8:22-cv-01416 (C.D.
Cal., July 29, 2022) is a class action suit to secure redress
against MCG for its reckless and negligent violation of the
Plaintiff and Class Members privacy rights.
The Plaintiff and Class Members are patients and former patients of
MCG customer hospitals who had their PII and PHI collected, stored
and ultimately breached by MCG, alleges the suit.
In or around December of 2021, MCG had their data servers breached
by unauthorized third-party hackers, who stole the highly sensitive
personal and medication information of 1,100,000 individuals across
the country.
MCG is a technology vender that provides patient care guidelines
and clinical guidance software to hospitals and healthcare
providers across the United States. As a result, MCG collects and
stores the Personal Identifying Information ("PII") and Protected
Health Information ("PHI") of hundreds of patients each day.
Under statute and regulation, MCG had a duty to implement
reasonable, adequate industry-standard data security policies
safeguards to protect patient PII and PHI. MCG failed to do so,
despite specifically promising in its privacy policy that it would
use "reasonable efforts to protect your information" using "a
variety of security technologies and procedures to protect
information from unauthorized access, use or disclosure."
The Plaintiff and Class Members have suffered injuries and damages.
As a result of MCG's wrongful actions and inactions, Plaintiff and
Class Members' names, social security numbers, medical codes,
postal addresses, telephone numbers, email addresses, dates of
birth and gender have all been compromised, the suit asserts.
The Plaintiff is a California resident residing in Victorville,
California. The Plaintiff is a former patient of Desert Valley
Hospital, who is a customer of MCG. On or around June 20, 2022,
Plaintiff received a data breach notice from MCG informing her that
her personal information, including her name, social security
number, medical code, postal address, telephone number, email
address, date of birth and gender, had been implicated in the data
breach.
MCG is a HIPAA business associate that provides informed care
strategies and clinical guidance software to hospitals and
healthcare providers using artificial intelligence technology. In
providing it's services, MCG collects and stores patient PII and
PHI from its customers.[BN]
The Plaintiff is represented by:
Thiago M. Coelho, Esq.
Robert J. Dart, Esq.
Jesse S. Chen, Esq.
WILSHIRE LAW FIRM, PLC
3055 Wilshire Blvd., 12th Floor
Los Angeles, CA 90010
Telephone: (213) 381-9988
Facsimile: (213) 381-9989
E-mail: thiago@wilshirelawfirm.com
rdart@wilshirelawfirm. com
jchen@wilshirelawfirm. com
MDL 2819: $30MM Class Deal in Restasis Antitrust Suit Gets Final OK
-------------------------------------------------------------------
In the case, IN RE RESTASIS (CYCLOSPORINE OPHTHALMIC EMULSION)
ANTITRUST LITIGATION. THIS DOCUMENT APPLIES TO: ALL END-PAYOR
PLAINTIFF CLASS CASES, Case No. 18-MD-2819 (NG) (LB) (E.D.N.Y.),
Judge Nina Gershon of the U.S. District Court for the Eastern
District of New York grants the End-Payor Plaintiffs':
(i) motion for final approval of the settlement, approval of
the Plan of Allocation, and an order of dismissal with
prejudice; and
(ii) motion for reimbursement of counsel's expenses and an
award of attorneys' fees and service awards.
In this multi-district antitrust litigation, End-Payor Plaintiffs
or ("EPPs") 1199SEIU National Benefit Fund; 1199SEIU Greater New
York Benefit Fund; 1199SEIU National Benefit Fund for Home Care
Workers; 1199SEIU Licensed Practical Nurses Welfare Fund; American
Federation of State, County, and Municipal Employees District
Council 37 Health and Security Plan; Fraternal Order of Police,
Miami Lodge 20, Insurance Trust Fund; Ironworkers Local 383 Health
Care Plan; Self-Insured Schools of California; Sergeants Benevolent
Association Health & Welfare Fund; St. Paul Electrical Workers'
Health Plan; and United Food and Commercial Workers Unions and
Employers Midwest Health Benefits Fund, sued Defendant Allergan.
On May 5, 2020, the Court certified the following End-Payor Class,
which consisted of both consumers and third-party payors ("TPPs"):
All persons or entities who indirectly purchased, paid and/or
provided reimbursement for some or all of the purchase price for
Restasis, other than for resale, who made their purchases in
Arizona, Arkansas, California, Colorado, the District of Columbia,
Florida, Hawaii, Illinois, Iowa, Kansas, Maine*, Massachusetts*,
Michigan, Minnesota, Mississippi, Missouri*, Montana*, Nebraska,
Nevada, New Hampshire, New Mexico, New York, North Carolina, North
Dakota, Oregon, Rhode Island, South Dakota, Tennessee, Utah,
Vermont*, West Virginia, and Wisconsin from May 1, 2015, through
the present (in the case of Arkansas only, July 31, 2017), for
consumption by themselves, their families, or their members,
employees, insureds, participants, or beneficiaries.
On Sept. 23, 2021, EPPs, on behalf of themselves and the End-Payor
Class, entered into a settlement with Allergan in which the
Defendant agreed to pay the class $29,999,999.99. On Jan. 18, 2022,
after my careful review of the Settlement Agreement, the Plan of
Allocation, and the proposed notice forms, and after conducting two
hearings with the parties, Judge Gershon granted preliminary
approval of the settlement and the Plan of Allocation, approved the
form and manner of notice to the class, appointed A.B. Data, Ltd.
as claims administrator, appointed an escrow agent, and set a date
for a final Fairness Hearing. In the Preliminary Approval Order,
for purposes of settlement, the class period set forth in the class
definition was amended, with respect to all states except for
Arkansas, to end on July 31, 2021.
Notice of settlement was given by publication beginning on Feb. 1,
2022; by direct mail and e-mail beginning on Feb. 8, 2022; by
toll-free telephone helpline beginning Feb. 1, 2022; and by
website, www.RestasisLitigation.com, beginning Feb. 1, 2022.
On May 17, 2022, the EPPs, by the Class Counsel, filed a timely
motion for reimbursement of their expenses as well as an award of
attorneys' fees and service awards for the class representatives.
The deadline to e-mail or postmark requests to opt out from the
End-Payor Class and Settlement Agreement was May 3, 2022, and the
deadline for Class Members to object to the settlement, to oppose
the Plaintiffs' motions, or to file notices of intent to appear at
the Fairness Hearing was June 7, 2022. Based upon their requests,
five End-Payor Class Members have been excluded from the class. No
End-Payor Class Member has filed any objection, opposition, or
notice of intent to appear.
On July 12, 2022, Judge Gershon held a virtual Fairness Hearing at
which she heard from the counsel.
First, she finds that class members received due and adequate
notice of the settlement, the settlement's terms, these
proceedings, and their rights to opt out of the class or to object
to the settlement. She also finds that class members had a full and
fair opportunity to request exclusion or to object.
Second, she finds that the settlement is fair, reasonable, and
adequate based on the factors set forth in Rule 23(e)(2). It also
complies with all applicable requirements of the Federal Rules of
Civil Procedure, the United States Constitution (including the Due
Process Clause), and the Class Action Fairness Act (including 28
U.S.C. Section 1715). She therefore grants the EPPs' motion for
final approval of the settlement. Neither the contents of her
Opinion and Order nor the Settlement Agreement nor any other
Settlement-related document or related proceedings will constitute,
be construed as, or be deemed to be evidence of or an admission or
concession by the Defendant as to the validity of any claim that
has been or could have been asserted against it or as to any
liability by it to the End-Payor Class.
Third, Judge Gershon approves the Plan of Allocation, finding it
fair, reasonable, and adequate. She authorizes the Class Counsel
and A.B. Data to administer and distribute the net proceeds of the
settlement according to the terms of the Settlement Agreement, the
Plan of Allocation, and the Opinion and Order.
A.B. Data will provide weekly updates to Class Counsel regarding
the status of the claims administration process. The Class Counsel
will provide bi-weekly updates to the Court regarding the status of
claims administration. The Class Counsel will also designate at
least one primary point of contact for claims administration issues
within each of their respective firms. As of the date of the
Opinion and Order, those attorneys are Scott Grzenczyk of Girard
Sharp LLP, Robert S. Schachter of Zwerling, Schachter & Zwerling,
LLP, Joseph R. Saveri of Joseph Saveri Law Firm, LLP, and David
Rudolph of Lieff Cabraser Heimann & Bernstein, LLP. The Class
Counsel will continue to supervise A.B. Data throughout the claims
administration process.
Once the claims administration process has been completed, the
Class Counsel will file a motion for distribution of settlement
funds and for payment of A.B. Data's fees, discussed below (both
additional accrued costs and any anticipated costs related to the
distribution of settlement funds). The Class Counsel anticipates
filing this motion within four to six months from the date the
Opinion and Order is entered.
Lastly, the EPPs' counsel seeks reimbursement of their expenses
totaling $4,635,684, plus the additional payment to A.B. Data. for
work done to finalize the processing of claims and the distribution
of settlement proceeds to Class Members. They also request an
attorneys' fee award of $10 million, which is one-third of the
settlement amount. The counsel seeks service awards capped at
$200,000 in total, to be divided equally among the named
plaintiffs. The class members were provided notice of the counsel's
intention to seek these monetary awards and that the matters would
be addressed at the Fairness Hearing. No class member has
objected.
Judge Gershon approves the requested attorneys' fee award as the
EPPs' counsel worked efficiently. The counsel is also entitled to
reimbursement of their expenses incurred, in significant part, as a
result of the expert-driven nature of the case. She also awards
each of the 11 named Plaintiffs a service award of $18,000. She is
satisfied that the work that the named class representatives did,
including the decision to settle the case, was for the benefit of
the class as a whole.
Based on the foregoing, Judge Gershon grants the Plaintiffs' final
approval motion. She also grants their motion for reimbursement of
the counsel's expenses and award of attorneys' fees and service
awards, to the extent that she approves the following payments for
distribution from the settlement fund: (1) reimbursement of the
class counsel's expenses in the amount of $4,635,684; (2) an
attorneys' fee award of $10 million; and (3) service awards of
$18,000 to each of the named class representatives, for a total of
$198,000.
The Class Counsel will submit to the Court, upon completion of
claims processing, a request for the authorization of a final,
additional payment to A.B. Data for work done to finalize the
processing of claims and the distribution of settlement proceeds to
class members. The total fees paid to A.B. Data will be capped at
$750,000. Except as provided for, no costs or attorneys' fees, are
recoverable or sought under 15 U.S.C. Section 15(a). Attorneys'
fees, service awards, and reimbursement of litigation costs and
expenses will be paid upon the occurrence of the Effective Date.
The settlement will be consummated in accordance with its terms as
set forth in the Settlement Agreement.
The Class Counsel and A.B. Data are authorized to administer and
distribute the net proceeds of the settlement according to the
terms of the Settlement Agreement, the Plan of Allocation, and this
Opinion and Order. The Class Counsel will file a motion for
distribution of settlement funds and for payment of A.B. Data's
fees once the claims administration process has been completed.
All the EPPs and End-Payor Class Members' claims against Allergan
in the Action are dismissed with prejudice and without costs,
except as provided for in Section F of the Settlement Agreement.
The Court retains exclusive jurisdiction over the implementation
and enforcement of the Settlement Agreement.
Releasors' Released Claims with respect to Releasees are released,
such releases being effective as of the Effective Date.
Releasors are permanently enjoined and barred from instituting,
commencing, or prosecuting any action or other proceeding asserting
any Released Claims against the Releasees.
With respect to any non-released claim, no rulings, orders, or
judgments in the Action will have any res judicata, collateral
estoppel, or offensive collateral estoppel effect.
There being no just reason for delay, Judge Gershon directs that
her Opinion and Order and judgment be final and appealable. She
finds that no order under Fed. R. Civ. P. 54(b) is necessary, but
that, if such an order were necessary, the requirements of Rule
54(b) are satisfied.
The Clerk of Court is directed to enter judgment in accordance with
the Opinion and Order.
A full-text copy of the Court's Aug. 2, 2022 Opinion & Order is
available at https://tinyurl.com/3j6twz25 from Leagle.com.
MEMBERS ONLY: Veitia Seeks OT Wages for Club Employees Under FLSA
-----------------------------------------------------------------
Raymond Veitia and other similarly situated individuals v. Members
Only Management, LLC d/b/a Trapeze a/k/a Trapeze Swingers Club, and
Alan Mostow, individually, Case No. 0:22-cv-61430 (S.D. Fla., July
29, 2022) seeks to recover money damages for unpaid overtime wages
under the Fair Labor Standards Act.
The Plaintiff contends that he and all other current and former
employees similarly situated worked more than 40 hours during one
or more weeks on or after December 2021, without being adequately
compensated.
Plaintiff Raymond Veitia is a resident of Polk County, Florida
working in Broward County.
Trapeze Swingers Club is an adult entertainment nightclub located
at 5213 N. State Road 7, Tamarac, Florida. The individual Defendant
Alan Mostow is the owner/partner and manager of Defendant
Corporation Trapeze Swingers Club.[BN]
The Plaintiff is represented by:
Zandro E. Palma, Esq.
ZANDRO E. PALMA, P.A.
9100 S. Dadeland Blvd., Suite 1500
Miami, FL 33156
Telephone: (305) 446-1500
Facsimile: (305) 446-1502
E-mail: zep@thepalmalawgroup.com
MISSISSIPPI POWER: Faces Class Action in Mississippi
----------------------------------------------------
Southern Co. Gas disclosed in its Form 10-K Report for the fiscal
year ended December 31, 2021, filed with the Securities and
Exchange Commission on July 28, 2022, that it is facing a putative
class action complaint against its subsidiary Mississippi Power and
the three then-serving members of the Mississippi Public Service
Commission in the U.S. District Court for the Southern District of
Mississippi.
In 2018, Ray C. Turnage and 10 other individual plaintiffs filed
said action which was then amended in March 2019 to include four
additional plaintiffs.
Mississippi Power received Mississippi Public Service Commission
approval in 2013 to charge a mirror construction work in progress
rate premised upon including in its rate base pre-construction and
construction costs for the Kemper IGCC prior to placing the Kemper
integrated coal gasification combined cycle into service.
The Mississippi Supreme Court reversed that approval and ordered
Mississippi Power to refund the amounts paid by customers under the
previously-approved mirror construction work in progress rate. The
plaintiffs allege that the initial approval process, and the amount
approved, were improper and make claims for gross negligence,
reckless conduct, and intentional wrongdoing. They also allege that
Mississippi Power underpaid customers by up to $23.5 million in the
refund process by applying an incorrect interest rate.
The plaintiffs seek to recover, on behalf of themselves and their
putative class, actual damages, punitive damages, pre-judgment
interest, post-judgment interest, attorney's fees, and costs. The
district court dismissed the amended complaint; however, in March
2020, the plaintiffs filed a motion seeking to name the new members
of the Mississippi Public Service Commission, the Mississippi
Development Authority, and Southern Company as additional
defendants and add a cause of action against all defendants based
on a dormant commerce clause theory under the U.S. Constitution.
In July 2020, the plaintiffs filed a motion for leave to file a
third amended complaint, which included the same federal claims as
the proposed second amended complaint, as well as several
additional state law claims based on the allegation that
Mississippi Power failed to disclose the annual percentage rate of
interest applicable to refunds. In November 2020, the court denied
each of the plaintiffs' pending motions and entered final judgment
in favor of Mississippi Power.
On January 22, 2021, the court denied further motions by the
plaintiffs to vacate the judgment and to file a revised second
amended complaint. On February 19, 2021, the plaintiffs filed a
notice of appeal with the U.S. Court of Appeals for the Fifth
Circuit.
On March 21, 2022, the U.S. Court of Appeals for the Fifth Circuit
issued an opinion affirming the dismissal of the claims against the
Mississippi PSC defendants but reversing the dismissal of the
claims against Mississippi Power.
The appellate court remanded the case to the U.S. District Court
for the Southern District of Mississippi for further proceedings.
On May 31, 2022, the U.S. Court of Appeals for the Fifth Circuit
denied a petition by Mississippi Power for a rehearing en banc and
the case was remanded back to the trial court for further
proceedings. On June 17, 2022, Mississippi Power filed with the
trial court a motion to dismiss the complaint.
Southern Company is a holding company that owns all of the
outstanding common stock of three traditional electric operating
companies, Southern Power Company, and Southern Company Gas based
in Georgia.
NEOGENIS LABS: Mag. Judge Recommends Dismissal of Sharifan Suit
---------------------------------------------------------------
In the case, ABDEE SHARIFAN, on behalf of himself and for all
others similarly situated, Plaintiff v. NEOGENIS LABS, INC. D/B/A
HUMANN, Defendant, Civil Action No. 4:21-cv-01940 (S.D. Tex.),
Magistrate Judge Andrew M. Edison of the U.S. District Court for
the Southern District of Texas, Houston Division, recommends that
the Defendant's Motion to Dismiss Plaintiff's First Amended
Complaint be granted.
Defendant HumanN markets functional foods and dietary supplements
that incorporate beetroot power and other ingredients under the
brand name "SuperBeets(R)." Its product line includes its original
SuperBeets Powder -- containing beetroot and fermented beetroot
powder that is mixed with water -- and SuperBeets Soft Chews, a
dietary supplement containing beetroot powder and grape seed
extract in a chewable form.
In June 2021, Plaintiff Sharifan sued HumanN, on behalf of himself
and other similarly situated individuals, for violations of the
Texas Deceptive Trade Practices Act and common-law fraud. The
general thrust of his lawsuit is that HumanN falsely and
deceptively marketed its Soft Chews as if they contained the same
formula as its SuperBeets Powder. More specifically, he alleges
HumanN advertised that its "Soft Chews had the exact same health
benefits as the original SuperBeets products" and that "this
advertising convinced him to purchase the SuperBeets Soft Chews."
In support of his claims that HumanN deceptively marketed its Soft
Chews, Sharifan's Amended Complaint includes images of HumanN's
purportedly misleading advertisements and social media posts.
HumanN has moved to dismiss Sharifan's Amended Complaint for
failure to state a claim under Federal Rule of Civil Procedure
12(b)(6), arguing that the advertisements or communications
Sharifan cites in his Amended Complaint objectively demonstrate
that no reasonable consumer would believe its Soft Chews "contained
the exact same formula and ingredients" as its SuperBeets Powder.
Subsumed within this argument is HumanN's claim that Sharifan's
pleadings fail to satisfy Rule 9(b)'s heightened pleading standard
for claims grounded in fraud. HumanN also argues Sharifan has
failed to allege facts that demonstrate his reliance on its alleged
misrepresentations was reasonable -- an essential element for both
DTPA and fraud claims.
In response, Sharifan argues that he is not required to identify
the specific advertisement(s) he relied upon or articulate exactly
when or where he saw the advertisement(s) to survive the
motion-to-dismiss stage. Rather, under Rule 12(b)(6)'s deferential
standard, he maintains it is sufficient that he has alleged that
"HumanN launched an extensive television and print advertising
campaign in which HumanN marketed the SuperBeets Soft Chews as
containing the same formula as SuperBeets Powder" and that he
relied on those advertisements. But even if he were required to
specify the advertisements upon which he relied, Sharifan insists
that he has done so.
Mr. Sharifan essentially divides his allegations into three parts.
He begins by describing, generally, HumanN's development of its
SuperBeets products. The second section concerns HumanN's marketing
campaign for its new product line, which includes Soft Chews, and
its purported misrepresentations about those products. Finally, in
the third section, Sharifan cursorily explains how HumanN
supposedly duped him into purchasing its Soft Chews.
According to Sharifan, "for years he saw HumanN's advertising for
its SuperBeets Powder," but "it was not until it began heavily
advertising SuperBeets Soft Chews in 2020 that he actually began
purchasing HumanN's products." Specifically, advertisements
claiming that HumanN's "Soft Chews had the exact same health
benefits" and "contained the exact same formula and ingredients as
the original SuperBeets products" "convinced Sharifan to purchase
the SuperBeets Soft Chews in late 2020 and early 2021." Sharifan
concludes that he "would not have purchased the SuperBeets Soft
Chews if he had known the product did not contain the original
SuperBeets formula or did not contain nitric oxide."
Rule 9(b)'s particularity requirement generally demands the
complaint identify the "who, what, when, where, and how" of the
allegedly fraudulent content. That is, a plaintiff pleading fraud
must "specify the statements contended to be fraudulent, identify
the speaker, state when and where the statements were made, and
explain why the statements were fraudulent." "What constitutes
particularity will necessarily differ with the facts of each case."
Nonetheless, Rule 9(b) sets a "high bar." Naked assertions devoid
of further factual enhancement will not suffice.
HumanN contends that Sharifan's allegations do not contain nearly
all the requisite detail required under Rule 9(b).
To begin, Judge Edison explains that the term "advertising
campaign" is nowhere to be found in Sharifan's Amended Complaint,
though it repeatedly appears in his response to the Motion to
Dismiss. His vague mention of a nebulous advertising campaign is of
such a high level of generality that it fails to provide even the
most minimal context so that HumanN can identify the
advertisement(s) at issue and prepare its defense accordingly.
Those issues aside, the advertisements and social media posts
Sharifan has included in his Amended Complaint belie the
allegations that accompany them. If anything, they prove the
opposite.
Given that Sharifan accuses HumanN of repeatedly misleading
consumers with claims that its Soft Chews are, for all intents and
purposes, identical to its SuperBeets Powder, Judge Edison says it
is difficult to fathom why Sharifan is not able to come forward
with more detailed facts. But even if the Court were to buy
Sharifan's argument that his laconic -- not to mention vague --
discussion of HumanN's advertising campaign satisfied Rule 9(b)'s
who, what, where, and how elements, Sharifan's claims still fail as
he does not identify when the fraudulent statements were made.
Stated differently, he is unable to point to a single advertisement
or social media post supporting his claim that HumanN's Soft Chews
contained the same formula as its SuperBeets Powder.
Without belaboring the point, for the reasons he discussed, Judge
Edison holds that Sharifan's Amended Complaint falls well short of
Rule 9(b)'s heightened pleading requirement.
Mr. Sharifan concludes his response to the motion to dismiss with a
cursory request for leave to amend his pleadings pursuant to Rule
15(a)(2).
However, Judge Edison finds that Sharifan provides absolutely no
basis or detail for the requested amendment. In an ideal world,
Sharifan would have provided me with a proposed amended complaint
to review. Nonetheless, his "failure to attach a copy of the
proposed complaint is not, on its own, fatal to a motion to amend."
What does, however, doom Sharifan's request to amend is his failure
to apprise me of what additional facts he would include in a Second
Amended Complaint. Because Sharifan has failed to explain what
facts would be included in yet another amended pleading, his latest
request to amend should be denied as futile.
For these reasons, Judge Edison recommends that the Court grants
HumanN's Motion to Dismiss and dismisses Sharifan's claims with
prejudice to refiling.
The Clerk will provide copies of the Memorandum and Recommendation
to the respective parties who have 14 days from the receipt to file
written objections pursuant to Federal Rule of Civil Procedure
72(b) and General Order 2002-13. Failure to file written objections
within the time period mentioned will bar an aggrieved party from
attacking the factual findings and legal conclusions on appeal.
A full-text copy of the Court's Aug. 2, 2022 Memorandum &
Recommendation is available at https://tinyurl.com/bdhxwuuh from
Leagle.com.
NORTH MEMORIAL: Keller Sues for BOD for Breach of Fiduciary Duties
------------------------------------------------------------------
KATHLEEN M. KELLER and CRYSTAL SMITH, individually and on behalf of
others similarly situated, Plaintiffs v. NORTH MEMORIAL HEALTH
CARE, THE BOARD OF DIRECTORS OF NORTH MEMORIAL HEALTH CARE, and
JOHN DOES 1–25, Defendants, Case No. 0:22-cv-01794 (D. Min., July
15, 2022) is a putative class action brought pursuant to the
Employee Retirement Income Security Act of 1974 against the North
Memorial Health 401(k) Plan's fiduciaries, which include North
Memorial Health Care and the Board of Directors of North Memorial
Health Care and its members during the Class Period for breaches of
their fiduciary duties.
The Plaintiffs allege that, during the putative Class Period,
Defendants, as "fiduciaries" of the Plan, as that term is defined
under ERISA Section 3(21)(A), 29 U.S.C. Section 1002(21)(A),
breached the duties they owed to the Plan, to Plaintiffs, and to
the other participants of the Plan by, inter alia, (1) failing to
objectively and adequately review the Plan's investment portfolio
with due care to ensure that each investment option was prudent, in
terms of cost; (2) maintaining certain funds in the Plan despite
the availability of identical or similar investment options with
lower costs and/or better performance histories; and (3) failing to
control the Plan's recordkeeping costs.
The Defendants' mismanagement of the Plan, to the detriment of
participants and beneficiaries, constitutes a breach of the
fiduciary duty of prudence, in violation of 29 U.S.C. Section 1104.
Their actions were contrary to actions of a reasonable fiduciary
and cost the Plan and its participants millions of dollars, says
the suit.
North Memorial Health Care is a community hospital located in
Robbinsdale, Minnesota.[BN]
The Plaintiffs are represented by:
Shawn J. Wanta, Esq.
Nicholas P. DeMaris, Esq.
BAILLON THOME JOZWIAK & WANTA LLP
100 South Fifth Street, Suite 1200
Minneapolis, MN 55402
Telephone: (612) 252-3570
E-mail: sjwanta@baillonthome.com
npdemaris@baillonthome.com
NWA PIZZA: Lawson Seeks Minimum & OT Wages for Delivery Drivers
---------------------------------------------------------------
Gary Lawson, On behalf of herself and others similarly situated v.
NWA Pizza, LLC, Case No. 4:22-cv-00798 (E.D. Mo., July 29, 2022)
seeks appropriate monetary, declaratory, and equitable relief based
on the Defendant's willful failure to compensate the Plaintiff and
similarly-situated individuals with minimum and overtime wages as
required by the Fair Labor Standards Act and Missouri Minimum Wage
Law.
The Plaintiff brings this action on behalf of himself and similarly
situated current and former delivery drivers who worked for the
Defendant at any point in the past three years and who elect to opt
in pursuant to FLSA, to remedy violations of the FLSA wage and hour
provisions by the Defendant.
The Plaintiff worked as a delivery driver for the Defendant's Papa
John's Pizza store located at 2715 W Hwy 76, Ste 100, Branson,
Missouri from 2006 through August 15, 2020.
NWA Pizza owns and operates a chain of several Papa John's Pizza
stores, including stores within Missouri and Arkansas.[BN]
The Plaintiff is represented by:
James L. Simon, Esq.
LAW OFFICES OF SIMON & SIMON
5000 Rockside Road
Liberty Plaza -- Suite 520
Independence, OH
Telephone: (216) 525-8890
E-mail: james@simonsayspay.com
- and -
Michael L. Fradin, Esq.
THE LAW OFFICE OF MICHAEL L. FRADIN
8401 Crawford Ave. Ste. 104
Skokie, IL 60076
Telephone: (847) 644-3425
Facsimile: (847) 673-1228
E-mail: mike@fradinlaw.com
OCWEN FINANCIAL: Court Decertifies Weiner's Class and Sub-Classes
-----------------------------------------------------------------
In the case, DAVID WEINER, individually, and on behalf of other
members of the public similarly situated, Plaintiff v. OCWEN
FINANCIAL CORPORATION, a Florida corporation, and OCWEN LOAN
SERVICING, LLC, a Delaware limited liability company, Defendants,
Case No. 2:14-cv-02597-TLN-DB (E.D. Cal.), Judge Troy L. Nunley of
the U.S. District Court for the Eastern District of California
grants the Defendants' Motion for Decertification.
The Plaintiff alleges that his mortgage servicer, Ocwen Loan
Servicing ("OLS") and its parent company, Ocwen Financial Corp.
(collectively, "Ocwen") improperly assessed default-related service
fees that contained substantial, undisclosed mark-ups that violated
the terms of Plaintiff's mortgage contract. He further alleges that
Ocwen misapplied his payments in violation of the terms of the
applicable Deed of Trust.
Ocwen assumed the servicing of the Plaintiff's home mortgage in
late 2012 or 2013. According to the Complaint, the previous
servicer on the loan, GMAC, had paid the Plaintiff's property taxes
in 2010 and accordingly had established an escrow account for
Plaintiff's pre-payment of those expenses in the future. The
Plaintiff nonetheless claims that after fully reimbursing GMAC for
the taxes it paid in early 2011 and paying a $400 escrow fee, he
arranged with GMAC to pay his own property taxes going forward and
to provide timely proof of his payments. Despite meeting his
commitment in that regard, he asserts that after Ocwen became his
loan servicer it began charging a $600 annual escrow account fee
and further began diverting funds to that escrow account such that
the account carried a positive balance of more than $10,000, none
of which was accessible by him.
According to the Plaintiff, this diversion of funds resulted in
Ocwen failing to properly apply his interest and principal
payments, which he alleges are supposed to be credited before any
escrow amounts are withheld. This misallocation resulted ultimately
in Ocwen's refusal to accept the Plaintiff's interest and principal
payments altogether on grounds that they were insufficient to
satisfy the defaulted amount on the loan. The Plaintiff states that
Ocwen's conduct has prevented him from claiming interest deductions
on his federal and state tax returns, subjected him to harassing
phone calls, precluded him from refinancing his loan, and placed
him in constant fear of imminent foreclosure of his home.
In addition to misallocation of loan payments and being denied
access to surplus funds diverted to his escrow account, the
Plaintiff also claims that once Ocwen succeeded in forcing him into
default by misapplying his loan payments, it proceeded to
improperly assess marked-up fees for default-related services on
his mortgage accounts, including so-called Broker Price Opinion
("BPO") fees and Hybrid Valuations, along with title report and
search fees. In addition, he alleges that through the
reconciliation process, Ocwen uses a related company, Altisource,
and Altisource's unlicensed analysts to alter the value placed on
properties like his by licensed brokers. Similarly, with respect to
fees for services related to the examination of title, he claims
Ocwen significantly marked up its BPO, Hybrid Valuation, and title
search fees.
The Plaintiff asserts that Ocwen profited from these arrangements
and was able to avoid detection by the fact that computer
management programs designed to assess fees were spun off by Ocwen,
on Aug. 10, 2009, to Altisource. The Chairman of the Board for both
Altisource and Ocwen was the same individual, William C. Erbey, and
according to the Complaint, Erbey owns some 27% of the common stock
of Altisource.
According to the Plaintiff, when a BPO is ordered and assessed
against a borrower's account, Ocwen communicates this charge in the
borrower's monthly statement, but fails to disclose that it
unlawfully marked up the actual cost paid to an independent
third-party broker to perform the BPO. He points out that the
applicable Deed of Trust7 provides that, in the event of default,
the loan servicer is authorized to pay for whatever is reasonable
or appropriate to protect the note holder's interest in the
property and rights under the security instrument
The Plaintiff therefore asserts that the mortgage instruments
provide that the servicer will "pay for default-related services
when reasonably necessary, and will be reimbursed or 'paid back' by
the homeowner for amounts 'disbursed.'" He maintains that nowhere
is it disclosed to borrowers that Ocwen may engage, as it
purportedly does, in self-dealing to mark up the actual cost of
those services to make a profit.
Based on the foregoing, the Plaintiff initiated the class action
alleging violations of: (1) California's Unfair Competition Law,
Cal. Bus. & Prof. Code Sections 17200-17210; (2) the Racketeer
Influenced and Corrupt Organizations Act ("RICO"), 182 U.S.C.
Sections 1962(c) and (d); and (3) the Rosenthal Fair Debt
Collection Practices Act, Cal. Civ. Code Sections 1788-1788.33. He
also alleges state law claims for unjust enrichment, fraud, and
breach of contract.
On Sept. 29, 2017, Judge England granted the Plaintiff's Motion for
Class Certification. The Court found that all four prerequisites of
Federal Rule of Civil Procedure ("Rule") 23(a) were met, as well as
the requirements of Rule 23(b)(3).
Judge England certified the following classes:
Nationwide Class: All residents of the United States of
America who have or had a loan serviced by Ocwen Financial
Corporation or Ocwen Loan Servicing, LLC and who paid for one or
more Broker Price Opinions or Hybrid Valuations charged by Ocwen
Financial Corporation or Ocwen Loan Servicing, LLC through
Altisource, from Nov. 5, 2010 through the present.
California Paid Sub-Class: All residents of the State of
California who have or had a loan serviced by Ocwen Financial
Corporation or Ocwen Loan Servicing, LLC and who paid for one or
more Broker Price Opinions or Hybrid Valuations charged by Ocwen
Financial Corporation or Ocwen Loan Servicing, LLC through
Altisource, from Nov. 5, 2010 through the present.
California Assessed Sub-Class: All residents of the State of
California who have or had a loan serviced by Ocwen Financial
Corporation or Ocwen Loan Servicing, LLC and to whom charges for
one or more Broker Price Opinions or Hybrid Valuations were
assessed to their mortgage account by Ocwen Financial Corporation
or Ocwen Loan Servicing, LLC through Altisource, from Nov. 5, 2010
through the present.
On April 12, 2021, the case was reassigned to the Court. On Sept.
20, 2021, Ocwen filed the instant motion for decertification. On
Nov. 4, 2021, the Plaintiff filed the instant motion to compel
testimony.
Ocwen argues the previously-certified classes must be decertified
because the Plaintiff fails the predominance inquiry after the
Supreme Court's decision in TransUnion LLC v. Ramirez, 141 S.Ct.
2190 (2021).8 (ECF No. 197-1 at 16-22.) It notes that Judge England
previously found "there is a factual dispute between the parties
about whether numerous class members ever paid any of the fees at
issue here and therefore whether they suffered concrete harm," and
that after TransUnion "individual issues surrounding whether each
class member suffered concrete harm, and therefore whether they can
be part of the class, will predominate over any common issues if
the class claims proceed to trial." It contends this individualized
inquiry "would dwarf any common issues in the litigation" because
it would involve the Plaintiff producing evidence as to each of the
321,226 class members if the class claims proceed to trial.
In opposition, the Plaintiff argues TransUnion is inapposite to the
instant case because it did not involve a factual dispute as to
whether class members suffered an injury but rather whether
TransUnion's statutory violation alone conferred Article III
standing. He maintains TransUnion involved stipulated facts,
whereas Judge England found there is a disputed factual issue as to
whether Plaintiff and class members suffered any injury, an issue
to be resolved at trial.
He further contends that he has sufficient evidence to demonstrate
at trial that all class members suffered an Article III injury, as
Ocwen admitted in its discovery responses that he can prove
standing on a class-wide basis, the Plaintiff's expert repeatedly
demonstrated he can establish economic injury and thus standing on
a class-wide basis, Ocwen's expert is not qualified or credible,
and Plaintiff repeatedly established that he paid valuation fees.
The Plaintiff finally notes that the members of the "California
Assessed Sub-Class" have sufficient evidence to establish at trial
they suffered an Article III injury because "the law is clear that
class members who merely had the unlawful charges assessed on their
accounts also suffered Article III injury regardless of whether
they paid."
In reply, Ocwen asserts that the Plaintiff mischaracterizes
TransUnion, which does not state that trial is the appropriate
venue to resolve disputes regarding standing Ocwen notes that
"after the Supreme Court in TransUnion found standing lacking for a
significant percentage of class members, it remanded to the Ninth
Circuit to determine whether class certification was still
appropriate in light of its decision." It argues the Plaintiff's
attempt to distinguish TransUnion on the basis that certain facts
in that case were stipulated fails because a stipulation of certain
facts does not limit its holding. Ocwen also disputes that the
Plaintiff has class-wide proof with respect to standing and
maintains that class members who were only assessed but did not pay
fees (such as the California Assessed Sub-Class) cannot remain part
of the class after TransUnion.
In light of TransUnion, Judge Nunley finds Ocwen's argument
persuasive. The decision in TransUnion compels an inquiry as to
whether the alleged injuries the class members assert have "a
'close relationship' to a harm 'traditionally' recognized as
providing a basis for a lawsuit in American courts." Judge Nunley
concludes Ocwen is correct that "these individualized inquiries"
into whether all the class members actually paid the fees in
question "would predominate because there are several different
categories of borrowers who suffered no concrete harm, and, in
order for each borrower to remain in the class, the Plaintiff will
need to establish that each borrower does not fall into any of
these categories." The Ninth Circuit has also found that
maintenance of a class action is inappropriate where common
questions do not predominate the class.
The Court at this juncture cannot take at face value Ocwen's
assertion that "almost half of the borrowers in the Plaintiff's
purported class never paid and will never have to pay the fee"
because that is disputed. Similar to the foregoing cases, however,
Judge Nunley is convinced that ascertaining which class members
have or have not paid the fees will entail an individualized
inquiry. At issue in the case is the class members' payment of
allegedly unlawfully assessed fees, which is a monetary harm
recognized by the Supreme Court as one "with a close relationship
to harms traditionally recognized as providing a basis for lawsuits
in American courts."
Pursuant to TransUnion, every class member must have suffered this
monetary harm in order to establish Article III standing to proceed
before the Court. Because the Plaintiff cannot definitively
establish at this juncture that each class member in each of the
three classes certified by Judge England has suffered this concrete
harm, the Court finds "that the questions of law and fact common to
class members" does not "predominate over any questions affecting
only individual members" under Rule 23(b)(3).
Based on the foregoing, Judge Nunley grants Ocwen's Motion for
Decertification. He orders the parties to file a Joint Status
Report within 30 days of the electronic filing date of the Order
indicating: (1) their willingness to attend a Settlement Conference
before a magistrate judge; (2) their willingness to proceed to
trial if they are not willing to attend a Settlement Conference;
and (3) what impact, if any, this Order has on the pending Motion
to Compel Testimony.
A full-text copy of the Court's Aug. 2, 2022 Order is available at
https://tinyurl.com/2rd53f57 from Leagle.com.
PG&E CORP: Faces Consolidated Securities Suit
----------------------------------------------
PG&E Corporation disclosed in its Form 10-Q Report for the
quarterly period ended June 30, 2022, filed with the Securities and
Exchange Commission on July 28, 2022, that it is facing a
consolidated class action suit filed against the company filed in
June 2018.
Said purported securities class action was filed in the United
States District Court for the Northern District of California,
naming PG&E Corporation and certain of its then-current and former
officers as defendants, entitled "David C. Weston v. PG&E
Corporation, et al."
The complaint alleged material misrepresentations and omissions
related to, among other things, vegetation management and
transmission line safety in various PG&E Corporation public
disclosures. The complaints asserted claims under Section 10(b) and
Section 20(a) of the Exchange Act and Rule 10b-5 promulgated
thereunder, and sought unspecified monetary relief, interest,
attorneys' fees and other costs.
Said complaint identified a proposed class period of April 29, 2015
to June 8, 2018. On September 10, 2018, the court consolidated said
case, and the litigation is now denominated "In re PG&E Corporation
Securities Litigation, U.S. District Court for the Northern
District of California," Case No. 18-03509.
The court also appointed the Public Employees Retirement
Association (PERA) as lead plaintiff. PERA filed a consolidated
amended complaint on November 9, 2018. On December 14, 2018, PERA
filed a second amended consolidated complaint to add allegations
regarding the 2018 camp fire. The proceedings were stayed as to
PG&E Corporation and the Utility.
In May 28, 2019, the plaintiffs in the consolidated securities
actions filed a third amended consolidated class action complaint,
which includes the claims asserted in the previously filed actions
and names as defendants PG&E Corporation, certain current and
former officers and former directors, and the underwriters.
On August 28, 2019, the Bankruptcy Court denied PG&E Corporation's
request to extend the stay to the claims against the officer,
director, and underwriter defendants. On October 4, 2019, the
officer, director, and underwriter defendants filed motions to
dismiss the third amended complaint, which motions are under
submission with the District Court.
The securities action has been enjoined as to PG&E Corporation and
the Utility pursuant to the Plan with any such claims submitted
through a proof of claim to be resolved by the Bankruptcy Court as
part of the claims reconciliation process in the Chapter 11 Cases.
In April 29, 2021, the District Court issued a notice of intent to
stay this action pending completion of the claims procedures in the
bankruptcy proceedings. PERA filed objections to the notice of
intent to stay on May 28, 2021. PG&E Corporation filed a response
to PERA's objections on June 10, 2021, the officer, director, and
underwriter defendants filed a response to PERA's objections on
June 11, 2021, and PERA filed a sur-response on June 21, 2021. The
District Court has not taken further action with respect to its
notice of intent to stay.
PG&E Corporation is a holding company based in California.
POPEYES LOUISIANA: Faces Suit Over Chicken Tenders' Deceptive Ads
-----------------------------------------------------------------
Natasha Sanders, individually and on behalf of all others similarly
situated v. Popeyes Louisiana Kitchen, Inc., Case No.
1:22-cv-04477-KAM-PK (E.D.N.Y., July 29, 2022) challenges the
Defendant's false and deceptive practices in the marketing and sale
of its Popeyes Chicken Tenders.
According to the complaint, the Defendant falsely and deceptively
advertises the Products as chicken "tenders," leading reasonable
consumers to believe that the Products are made from chicken
tenderloins. However, unbeknownst to consumers, the Products are
not made from tenderloins, but the remainder of the chicken breast.
As a result, the Products are not chicken tenders and are therefore
falsely and deceptively advertised, says the suit.
The Plaintiff and other consumers purchased the Products and paid a
premium price based upon their reliance on the Defendant's
representation that the chicken meat in the Products is comprised
entirely of chicken tenderloin. Had Plaintiff and Class members
been aware that the chicken meat in the Products was not comprised
of solely chicken tenderloin, Plaintiff and Class members would not
have purchased the Products or would have paid significantly less
for them. Accordingly, Plaintiff and Class members have been
injured by Defendant's deceptive business practices, the suit
further asserts.
The Plaintiff purchased the Products from a Popeyes in Flushing,
New York. In purchasing the Products, Plaintiff saw that the
Product was advertised as a chicken "tender."
Popeyes Louisiana Kitchen, Inc. is a Minnesota corporation and
maintains its headquarters in Miami, Florida. Defendant is
responsible for the formulation, ingredients, manufacturing,
naming, marketing, and sale of the Products in the United
States.[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
PORTO ALEGRE: Pestana Seeks OT Wages for Restaurant Employees
-------------------------------------------------------------
ALEJANDRO J. PESTANA and other similarly situated individuals v.
PORTO ALEGRE BRAZILIAN GRILL & BAR, CORP., and JANOUSKY A. TORRES,
individually, Case No. 1:22-cv-22405 (S.D. Fla., July 29, 2022)
seeks to recover money damages for unpaid overtime wages under the
the Fair Labor Standards Act.
The Plaintiff contends that she worked consistently more than 40
hours weekly. However, the Defendants did not pay her overtime
hours, as required by law.
The Defendants employed the Plaintiff as a non-exempted full-time
restaurant employee from June 1, 2021, to March 3, 2022, or 39
weeks. During the relevant employment period, the Plaintiff had
duties as a cook and server.[BN]
The Plaintiff is represented by:
Zandro E. Palma, Esq.
ZANDRO E. PALMA, P.A.
9100 S. Dadeland Blvd., Suite 1500
Miami, FL 33156
Telephone: (305) 446-1500
Facsimile: (305) 446-1502
E-mail: zep@thepalmalawgroup.com
PROFESSIONAL TRANSPORTATION: Dunner Seeks Damages Under FMLA, FLSA
------------------------------------------------------------------
WILFRED DUNNER V. PROFESSIONAL TRANSPORTATION INC., Case No.
2:22-cv-00953-AMM (N.D. Ala., July 28, 2022) is brought on behalf
of the Plaintiff and all others similarly situated for injunctive
relief and damages under the Family and Medical Leave Act, the
Americans with Disabilities Act, the Age Discrimination in
Employment Act, and the Fair Labor Standards Act.
The Plaintiff began his employment with Defendant on February 27,
2017, as a transporter. Norfolk Southern Railroad contracts with
the Defendant to transport railroad crews to its work locations. As
part of his job, the Plaintiff would drive a 7-passenger van to
railroad worksites carrying employees to their work assignments.
The Plaintiff was scheduled to work 12 hour shifts five days per
week.
On August 11, 2020, Plaintiff transported railroad crews about 40
or 50 miles to the railroad yard in Irondale, Alabama. When
Plaintiff arrived home on August 11, 2020, his fiancee told him she
tested positive for COVID-19. The next day Plaintiff told the
Respondent that he needed to get tested for COVID-19 and did not
report to work.
On August 24, 2020, Plaintiff returned to the doctor as required
and tested negative for COVID-19. The Plaintiff contacted Avery and
told him he was cleared to return. Avery told Plaintiff to place
the results on his car's windshield, and he would contact him. On
August 26, 2020, Avery called and told Plaintiff he could not
return to work because the Defendant terminated him.
During the three years preceding filing this Complaint, the
Plaintiff, and all others similarly situated transport drivers were
employees of the Defendant. The Defendant recorded the Plaintiff's
hours worked over 40 hours for a work week on at least one
or more occasion. The Defendant failed to pay Plaintiff for all
hours worked over 40 in a work week, says the suit.
As the result of Defendant's willful and intentional violation of
the FLSA, Plaintiff has been damaged, suffering loss of overtime
pay, the suit alleges.
PTI provides crew transportation services.[BN]
The Plaintiff is represented by:
Kira Fonteneau, Esq.
BARRETT & FARAHANY
2 20th N. St. Suite 900
Birmingham AL 35203
PROGRESSIVE NORTHWESTERN: Knight Files Suit in E.D. Arkansas
------------------------------------------------------------
A class action lawsuit has been filed against Progressive
Northwestern Insurance Company. The case is styled as Erik Knight,
individually and on behalf of all others similarly situated v.
Progressive Northwestern Insurance Company, Case No.
3:22-cv-00203-JM (E.D. Ark., Aug. 4, 2022).
The nature of suit is stated as Insurance for Declaratory
Judgement.
Progressive Northwestern Insurance Company --
https://www.progressivecommercial.com/ -- provides insurance
services. The Company provides different types of insurance
policies, including automotive, home, and business insurance
policies.[BN]
The Plaintiff is represented by:
Andrew J. Shamis, Esq.
SHAMIS & GENTILE, PA
14 NE 1st Ave., Suite 705
Miami, FL 33132
Phone: (305) 479-2299
Fax: (786) 623-0915
Email: ashamis@shamisgentile.com
- and -
Christopher Gold, Esq.
Scott Edelsberg, Esq.
EDELSBERG LAW PA
20900 North East 30th Avenue, Suite 417
Aventura, FL 33180
Phone: (786) 289-9471
- and -
Jake G. Windley, Esq.
Joseph Henry (Hank) Bates, III, Esq.
Tiffany M. Wyatt Oldham, Esq.
CARNEY BATES & PULLIAM, PLLC
519 West Seventh Street
Little Rock, AR 72201
Phone: (501) 312-8500
Email: jwindley@cbplaw.com
hbates@cbplaw.com
toldham@cbplaw.com
PROTECTIVE ENTERPRISES: Mason Seeks Unpaid Regular Wages Under FLSA
-------------------------------------------------------------------
Eriel Mason, Jane Doe (a minor), and other similarly situated
individuals v. Protective Enterprises Public Safety, LLC, and
Marcus D. Williams, individually, Case No. 3:22-cv-00821 (M.D.
Fla., July 29, 2022) seeks to recover money damages for unpaid
regular wages and retaliation under the Fair Labor Standards Act.
Plaintiffs Eriel Mason and Jane Doe as dispatchers. During their
time of employment with Defendants, the Plaintiffs were not
compensated for their working hours adequately, says the suit.
Protective Enterprises is a for-profit organization dedicated to
providing security and surveillance services to residential and
commercial accounts. It has offices located at 4305 Plymouth
Street, Jacksonville, where Plaintiff worked.[BN]
The Plaintiff is represented by:
Zandro E. Palma, Esq.
ZANDRO E. PALMA, P.A.
9100 S. Dadeland Blvd., Suite 1500
Miami, FL 33156
Telephone: (305) 446-1500
Facsimile: (305) 446-1502
E-mail: zep@thepalmalawgroup.com
QUOTEWIZARD.COM: Compels Microsoft to Respond to Subpoenas
----------------------------------------------------------
In the class action complaint, JOSEPH MANTHA, on behalf of himself
and all others similarly situated v. QUOTEWIZARD.COM, LLC, Case No.
2:22-mc-00066-RSM (D. Mass., July 28, 2022), QuoteWizard.com moves
the Court for an Order compelling non-party Microsoft Corporation
to substantively respond to QuoteWizard's Fed. R. Civ. P. 45
Subpoenas seeking subscriber information believed to be related to
Fenix Media Solutions, the company that allegedly originated/sold
the lead(s) at issue in this case.
QuoteWizard issued two subpoenas to non-party Microsoft in an
attempt to find United States-based connections or contact
information for Fenix, the company that allegedly originated and
sold Plaintiff Mantha) disputed lead, which QuoteWizard ultimately
purchased.
QuoteWizard's and Microsoft's counsel met and conferred by Teams
meeting in an attempt to resolve the dispute. Microsoft was willing
to waive various objections it had raised, and QuoteWizard even
remitted a check as requested by Microsoft, as QuoteWizard was
expecting a substantive response. However, Microsoft's counsel
later stated that it would refuse to produce the responsive
information on the ground that the information was subject or
possibly subject to EU Regulation 2016/679, the General Data
Protection Regulation.
QuoteWizard agrees to accept the responsive information from
Microsoft as confidential pursuant to its confidentiality agreement
with Plaintiff, and maintain the information as such, meaning that
any subscriber information produced by Microsoft will be kept
confidential and not subject to public disclosure.
QuoteWizard.com, LLC provides online insurance services.[BN]
The Defendant is represented by:
Kevin P. Polansky, Esq.
Christine M. Kingston, Esq.
NELSON MULLINS RILEY & SCARBOROUGH LLP
One Financial Center, Suite 3500
Boston, MA 02111
Telephone: (617) 217-4700
Facsimile: (617) 217-4710
E-mail: kevin.polansky@nelsonmullins.com
christine.kingston@nelsonmullins.com
RESURGENT CAPITAL: Faces Danford Suit Over Illegal Debt Collection
------------------------------------------------------------------
JACQUELINE DANFORD, individually and on behalf of those similarly
situated, Plaintiff v. RESURGENT CAPITAL SERVICES L.P. and LVNV
FUNDING LLC, Defendants, Case No. 1:22-cv-00198-TBM-RPM (S.D.
Miss., August 2, 2022) is a class action complaint brought against
the Defendants for their alleged violations of the Fair Debt
Collection Practices Act.
According to the complaint, the Plaintiff received two emails from
TrueAccord in an attempt to collect a defaulted account. The first
email was dated May 2, 2020 sent by a representative from
TrueAccord regarding an account owned by Defendant LVNV Funding LLC
associated with an account number with the last four digits 2063.
The second email-dated May 27, 2020 was regarding an account
bearing the last four digits of 3959 purportedly originally owed by
her to Synchrony Bank. Both emails stated the amount owed, the
original creditor, the balance, and identified Defendant LVNV
Funding LLC as "Current Creditor." Upon receipt of the second
email, the Plaintiff sent a letter by certified mail to TrueAccord
stating that she refused to be contacted by them and to "cease and
desist" contact and collections, says the suit.
Consequently, Defendant Resurgent sent the Plaintiff a letter dated
June 10, 2020 informing the Plaintiff that it began managing the
accounts owed to Defendant LVNV and in response to a letter sent by
the Plaintiff disputing the debt to TrueAccord dated June 1, 2020.
According to Defendant Resurgent's letter dated June 10, 2020, it
did not acknowledge the Plaintiff's disputing of the debt.
To sum it up, the Plaintiff has sent dispute letters to the
Defendants advising the Defendants that she had previously disputed
and attempted to request validation of the debt and that the
Defendants had failed to acknowledge this. Unfortunately, the
Defendants ignored the request to cease and desist and instead
responded to the Plaintiff's dispute letter with different letters
for each account. From June 10, 2020 to May 17, 2022, the Plaintiff
has received at least 43 letter from the Defendants, the suit
asserts.
Moreover, the Defendant has furnished information regarding the
Plaintiff's Accounts to various Credit Reporting Agencies,
including Equifax Information Services, LLC. However, it allegedly
includes false information regarding the date the account was
opened, reporting it as the date that the account was acquired by
LVNV and not the correct date that the account was opened. Also,
the Defendants failed to report to Credit Reporting Agencies that
the accounts were disputed.
As a result of the Defendants' unlawful conduct, the Plaintiff has
suffered actual damages, including postage, attorneys' fees, and
treatment costs related to emotional distress. Thus, on behalf of
herself and on behalf of members of the Putative Class, the
Plaintiff requests an order enjoining the Defendants from further
violations of the FDCPA. The Plaintiff also seeks an award of such
amount not to exceed the lesser of $500,000.00 or 1 per centum of
the net worth of the Defendant, as well as of litigation costs,
together with reasonable attorney's fees, and other relief as the
Court deems just and proper, the suit further alleges.
Resurgent Capital Services L.P. and LVNV Funding LLC are debt
collectors. [BN]
The Plaintiff is represented by:
Michael T. Ramsey, Esq.
SHEEHAN & RAMSEY, PLLC
429 Porter Avenue
Ocean Springs, MI 39564
Tel: (228) 875-0572
E-mail: mike@sheehanramsey.com
ROBOTIC HAIR: Dicks Files ADA Suit in S.D. New York
---------------------------------------------------
A class action lawsuit has been filed against Robotic Hair
Restoration Center of New York, Inc. The case is styled as Victoria
Dicks, on behalf of herself and all others similarly situated v.
Robotic Hair Restoration Center of New York, Inc., Case No.
1:22-cv-06638-LGS (S.D.N.Y., Aug. 4, 2022).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Robotic Hair Restoration Center --
https://www.robotichairrestoration.com/ -- offers the latest & most
advance robotic hair restoration surgery, robotic hair transplant
and artas robot surgeon.[BN]
The Plaintiff is represented by:
Mars Khaimov, Esq.
10826 64th Avenue, Ste. 2nd Floor
Forest Hills, NY 11375
Phone: (917) 915-7415
Email: mars@khaimovlaw.com
SEARS AUTHORIZED: Dicks Files ADA Suit in S.D. New York
-------------------------------------------------------
A class action lawsuit has been filed against Sears Authorized
Hometown Stores, LLC. The case is styled as Valerie Dicks, on
behalf of herself and all others similarly situated v. Sears
Authorized Hometown Stores, LLC, Case No. 1:22-cv-06634 (S.D.N.Y.,
Aug. 4, 2022).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Sears Authorized Hometown Stores, LLC --
https://www.searshometownstores.com/ -- operates as a departmental
store.[BN]
The Plaintiff is represented by:
Mars Khaimov, Esq.
10826 64th Avenue, Ste. 2nd Floor
Forest Hills, NY 11375
Phone: (917) 915-7415
Email: mars@khaimovlaw.com
SMART CARE: Larraga Seeks Unpaid Minimum & OT Wages Under FLSA
--------------------------------------------------------------
MARIA G. LARRAGA and other similarly situated individuals v. SMART
CARE JANITORIAL, INC., and JEFFERSON A. RODRIGUEZ, individually,
Case No. 1:22-cv-22402 (S.D. Fla., July 29, 2022) seeks to recover
money damages for unpaid minimum and overtime wages under the Fair
Labor Standards Act.
The Plaintiff contends the she and all other current and former
employees similarly situated worked more than 40 hours during one
or more weeks on or after March 2022, without being adequately
compensated.
Corporate Defendant is a residential and commercial janitorial
company specializing in cleaning restaurants and hotels.
The Plaintiff is a resident of Miami-Dade County, Florida.[BN]
The Plaintiff is represented by:
Zandro E. Palma, Esq.
ZANDRO E. PALMA, P.A.
9100 S. Dadeland Blvd., Suite 1500
Miami, FL 33156
Telephone: (305) 446-1500
Facsimile: (305) 446-1502
E-mail: zep@thepalmalawgroup.com
SOCLEAN INC: Clark Suit Transferred to W.D. Pennsylvania
--------------------------------------------------------
The case styled as Susan Clark, on behalf of herself and all others
similarly situated v. SoClean Inc., Case No. 0:22-cv-02335 was
transferred from the U.S. District Court for the District of South
Carolina, to the U.S. District Court for the Western District of
Pennsylvania on Aug. 4, 2022.
The District Court Clerk assigned Case No. 2:22-cv-01138-JFC to the
proceeding.
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:
Harper Todd Segui, Esq.
MILBERG COLEMAN BRYSON PHILLIPS GROSSMAN, PLLC
825 Lowcountry Blvd., Suite 101
Mount Pleasant, SC 29465
Phone: (919) 600-5000
Fax: (919) 600-5035
Email: hsegui@milberg.com
SOCLEAN INC: Simms Suit Transferred to W.D. Pennsylvania
--------------------------------------------------------
The case styled as Amin Simms, on behalf of himself and all others
similarly situated v. SoClean Inc., Case No. 1:22-cv-00633 was
transferred from the U.S. District Court for the Western District
of Texas, to the U.S. District Court for the Western District of
Pennsylvania on Aug. 4, 2022.
The District Court Clerk assigned Case No. 2:22-cv-01139-JFC to the
proceeding.
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:
Rex A Sharp, Esq.
SHARP LAW, LLP
4820 W. 75th Street
Prairie Village, KS 66208
Phone: (913) 901-0505
Fax: (913) 901-0419
Email: rafrenchhodson@midwest-law.com
STANLEY BLACK: Breaches Fiduciary Duties, Kistler ERISA Suit Says
-----------------------------------------------------------------
JAMES KISTLER and LISA LANG, individually and as representatives of
a class of similarly situated persons, on behalf of the STANLEY
BLACK & DECKER RETIREMENT ACCOUNT PLAN v. STANLEY BLACK & DECKER,
INC.; THE BOARD OF TRUSTEES OF STANLEY BLACK & DECKER, INC.; THE
ADMINISTRATIVE COMMITTEE OF THE BLACK & DECKER RETIREMENT ACCOUNT
PLAN; and DOES No. 1-20, Whose Names Are Currently Unknown, Case
No. 3:22-cv-00966 (D. Conn., July 29, 2022) is a class action suit
on behalf of the Stanley Black & Decker Retirement Account Plan and
a class of similarly-situated participants and beneficiaries of the
Plan, against the Defendants for breach of their fiduciary duties
under the Employee Retirement Income Security Act.
The defined contribution plans (e.g., 401(k) and 401(a) plans) that
are qualified as tax-deferred vehicles have become the primary form
of retirement saving in the United States and, as a result,
America's de facto retirement system. Unlike traditional defined
benefit retirement plans, in which the employer typically promises
a calculable benefit and assumes the risk with respect to high fees
or underperformance of pension plan assets used to fund defined
benefits, the participants in defined contribution plans bear the
risk of high fees and investment underperformance. The importance
of defined contribution plans to the United States retirement
system has become pronounced as employer-provided defined benefit
plans are increasingly rare as an offered and meaningful employee
benefit.
According to the complaint, as of December 31, 2020, the Stanley
Black & Decker Retirement Account Plan had 20,603 participants with
account balances and assets totaling approximately $2.18 billion,
placing it in the top 0.1% of all defined contribution plans by
plan size. Defined contribution plans with substantial assets, like
the Plan, have significant bargaining power and the ability to
demand low-cost administrative and investment management services
within the marketplace for administration of defined contribution
plans and the investment of defined contribution assets. The
marketplace for defined contribution retirement plan services is
well-established and can be competitive when fiduciaries of defined
contribution retirement plans act in an informed and prudent
fashion.
The Defendants maintain the Plan, and are responsible for
selecting, monitoring, and retaining the service provider(s) that
provide investment, recordkeeping, and other administrative
services. The Defendants are fiduciaries under ERISA, and, as such,
owe specific duties to the Plan and its participants and
beneficiaries, including obligations to act for the exclusive
benefit of participants, ensure that the investment options offered
through the Plan are prudent and diverse, and ensure that Plan
expenses are fair and reasonable in relation the services
obtained.
The Defendants have breached their fiduciary duties to the Plan by
allowing unreasonable expenses to be charged to participants, says
the suit.
Kistler & Lang are former employees of Stanley Black and former
participants in the Plan under 29 U.S.C. section 1002(7).[BN]
The Plaintiff is represented by:
Laurie Rubinow, Esq.
James E. Miller, Esq.
Laurie Rubinow, Esq.
Miller Shah LLP
65 Main Street
Chester, CT 06412
Telephone: (866) 540-5505
Facsimile: (866) 300-7367
E-mail: jemiller@millershah.com
lrubinow@millershah.com
- and -
James C. Shah, Esq.
Alec J. Berin, Esq.
Kolin C. Tang, Esq.
MILLER SHAH LLP, ESQ.
1845 Walnut Street, Suite 806
Philadelphia, PA 19103
Telephone: (866) 540-5505
Facsimile: (866) 300-7367
E-mail: jcshah@millershah.com
ajberin@millershah.com
kctang@millershah.com
TEVA PHARMACEUTICALS: Halman Suit Stayed Pending DOJ Action Verdict
-------------------------------------------------------------------
In the case, HALMAN ALDUBI PROVIDENT AND PENSION FUNDS LTD.,
Individually and On Behalf of All Others Similarly Situated,
Plaintiff v. TEVA PHARMACEUTICALS INDUSTRIES LIMITED, et al.,
Defendants, Civil Action No. 20-4660-KSM (E.D. Pa.), Judge Karen S.
Marston of the U.S. District Court for the Eastern District of
Pennsylvania grants the Defendants' motion to stay the case, except
as to class certification, pending the resolution of a related
enforcement action brought against Teva by the U.S. Department of
Justice.
Lead Plaintiff Gerald Forsythe, individually and on behalf of all
others similarly situated, alleges that Defendants Teva and Teva
executives Erez Vigodman, Eyal Desheh, Robert Koremans, Michael
Derkacz, Kåre Schultz, Michael McClellan, and Brendan O'Grady
violated Section 10(b) of the Securities Exchange Act of 1934 and
Securities and Exchange Commission Rule 10b-5 by making false and
misleading statements and by failing to disclose material
information about Teva's drug Copaxone. The Plaintiff also claims
the Individual Defendants violated Section 20(a) of the Exchange
Act because they knew or recklessly disregarded that Teva was
making materially false and misleading statements and material
omissions.
Teva is a global pharmaceutical company that sells generics,
specialty medicines, and over-the-counter products. One of its
products is Copaxone (glatiramer acetate injection), an injectable
drug used to treat patients with multiple sclerosis. Copaxone is
"one of the leading" therapies for multiple sclerosis in the United
States, and in the mid-2010s, it was responsible for nearly half of
the revenue in Teva's specialty medicines portfolio. In 2006, in
connection with the Shared Solutions program, Teva contracted with
Advanced Care Scripts, Inc. ("ACS"), a specialty pharmacy. Teva
sent ACS prescriptions for patients participating in Shared
Solutions who "either had or were eligible for Medicare Part D
coverage."
ACS referred Teva's Copaxone patients to two PAPs for co-pay
assistance: the Chronic Disease Fund ("CDF") and The Assistance
Fund ("TAF"). Both CDF and TAF maintained funds dedicated to
assisting multiple sclerosis patients, through which they "provided
co-pay assistance to patients for, ostensibly, any of the multiple
sclerosis drugs on the market." Teva regularly donated to both
PAPs. Under the applicable regulations, pharmaceutical companies
may donate to PAPs; however, "the funds received through donations
must be applied generally to all beneficiaries, and it is illegal
for a Charitable PAP to apply the funds received to any particular
drug."
Teva allegedly ran afoul of those regulations. It did not intend
its donations to CDF and TAF to cover co-payments for multiple
sclerosis treatments generally; rather, it intended its donations
to CDF and TAF to cover patients' co-pays on Copaxone specifically.
In fact, Teva executives regularly described the company's
donations to CDF and TAF as "Copaxone donations." While Teva was
donating to CDF and TAF, it "raised the price of Copaxone at a rate
over 19 times the rate of inflation, from approximately $17,000 per
year to $73,000 per year."
On March 21, 2017, the United States Attorney's Office for the
District of Massachusetts subpoenaed Teva for information about the
company's donations to charitable organizations, including PAPs.
Teva disclosed the subpoena in the next Form 6-K it filed on May
11, 2017. Despite receiving this subpoena, Teva continued operating
the Shared Solutions program and making donations to CDF and TAF
through at least 2018.
Both before and after receiving the subpoena, Teva made various
statements regarding Copaxone and the Shared Solutions program. But
Teva never disclosed its scheme to make "Copaxone donations" to
PAPs. The Plaintiff also contends that Teva and its executives'
omissions caused the company's disclosures regarding its compliance
with federal law to be false and misleading.
On Aug. 18, 2020, the U.S. Attorney's Office for the District of
Massachusetts filed a complaint against Teva for alleged violations
of the False Claims Act. Specifically, the Government alleges that
Teva's payments to CDF and TAF were "kickbacks" that allowed the
Company to increase the price of Copaxone while leaving "American
taxpayers to shoulder the high prices that Teva set." In September
2021, the Honorable Nathaniel M. Gorton denied Teva's motion to
dismiss. Discovery is underway, dispositive motions will be fully
briefed on May 21, 2023, and the case is set for trial on Sept. 18,
2023.
On Sept. 23, 2020, Halman Aldubi Provident and Pension Funds Ltd.
commenced the lawsuit individually and on behalf of all others
similarly situated. It alleged that Teva committed securities fraud
by making false and misleading statements regarding Copaxone and
the Shared Solutions program. On March 26, 2021, the Court named
The Investor Group, consisting only of Gerald Forsythe, as lead
plaintiff and appointed Faruqi & Faruqi, LLP as lead counsel. S
On May 25, 2021, the Plaintiff filed an Amended Complaint. On Aug.
10, 2021, he moved to strike the Amended Complaint and file a
corrected amended complaint to correct the inaccuracy, which the
Defendants did not oppose. The Court granted the motion, and the
Plaintiff's Corrected Amended Complaint became the operative
complaint.
In August 2021, the Defendants filed a motion to dismiss, which the
Court granted in part and denied in part in March 2022. On May 23,
the Defendants filed an answer, and the Court scheduled a
telephonic pretrial conference to be held on June 14, 2022.
On June 28, the Defendants filed a motion to stay all proceedings,
except those related to class certification, pending resolution of
the DOJ Action. They argue the stay is necessary to "avoid
inefficiencies and the risk of inconsistent adjudications" given
the connection between this matter and the DOJ action. Although
they contend the case must be stayed, the Defendants argue
discovery and briefing related to class certification must proceed
to "increase efficiency and further the interests of judicial
economy."
The Plaintiff opposes the motion. He argues this matter does not
"inextricably overlap" with the DOJ Action and it may take years to
resolve the DOJ Action, so an indefinite stay pending resolution of
the DOJ Action "would unfairly prejudice Plaintiff and other class
members." He also opposes the Defendants' request to allow class
certification proceedings to move forward. He argues bifurcating
class and merits discovery would be "particularly prejudicial," as
"class certification issues and merits issues may overlap.
In considering whether to stay a case pending a related criminal
action (or civil enforcement action), courts in this district
consider the following factors: (1) the interest of the plaintiffs
in proceeding expeditiously with this litigation or any particular
aspect of it, and the potential prejudice to plaintiffs of a delay;
(2) the burden which any particular aspect of the proceedings may
impose on defendants; (3) the convenience of the court in the
management of its cases, and the efficient use of judicial
resources; (4) the interests of persons not parties to the civil
litigation; and (5) the interest of the public in the pending civil
and criminal [or civil enforcement] litigation, citing Golden
Quality Ice Cream Co. v. Deerfield Specialty Papers, Inc., 87
F.R.D. 53, 56 (E.D. Pa. 1980).
Weighing these factors together, Judge Marston finds that it is
appropriate to stay the matter pending the resolution of the DOJ
Action. She recognizes that the Plaintiff has an interest in the
expedient resolution of this matter; however, he will not be
unfairly prejudiced by a delay, and any delay is likely to be
limited, as the DOJ Action is set to be resolved by fall of next
year.
Unlike the Plaintiff, Judge Marston says, the Defendants are likely
to be prejudiced were the action to proceed -- they will be forced
to undertake two similar (and likely very complex) discovery
processes simultaneously, which could spread potential witnesses
and other points of contact at Teva thin. The interest of third
parties and the public interest also weigh in favor of granting the
stay. But perhaps the most important factor counseling in favor of
staying the matter is the interest in preserving judicial economy
and avoiding the risk of inconsistent adjudications. Considering
these factors together, Judge Marston finds a stay is warranted.
Having determined that a stay is warranted, Judge Marston must now
decide whether to allow proceedings relating to class certification
to move forward. The Defendants argue the Court should bifurcate
discovery because "proceeding with class certification now is not
only practicable, but will actually increase the interests of
judicial economy." The Plaintiff opposes the request to bifurcate,
arguing that it "will serve only to needlessly complicate matters
to Plaintiff's detriment," especially given the potential overlap
between class certification and merits issues.
Judge Marston agrees with the Defendants -- despite the stay, class
certification should move forward. Given the interest in certifying
a class "as early as practicable," the fact that duplicative
discovery is not a major concern, and the fact that this litigation
may not continue if a class is certified, she finds that
bifurcation is appropriate, and discovery and briefing into class
certification should continue despite the stay.
For these reasons, Judge Marston grants the Defendants' motion and
stays the action, except as to class certification, pending the
resolution of the DOJ Action. An appropriate Order follows.
A full-text copy of the Court's Aug. 2, 2022 Memorandum is
available at https://tinyurl.com/nhenu8va from Leagle.com.
TRIAD PIZZA: Lester Sues Over Delivery Drivers' Unpaid Wages
------------------------------------------------------------
SCOTT LESTER JR., individually and on behalf of similarly situated
persons, Plaintiff v. TRIAD PIZZA LLC, BD PIZZA CO. LLC, and
BRADLEY C. DAVIS, Defendants, Case No. 1:22-cv-00616 (M.D.N.C.,
August 2, 2022) brings this complaint as a collective action
against the Defendants seeking to recover unpaid minimum wages and
other damages and relief owed to himself and other similarly
situated delivery drivers pursuant to the Fair Labor Standards
Act.
The Plaintiff was employed by the Defendants from approximately May
2020 to February 2021 as a delivery driver at the Defendants'
Domino's store located in King, North Carolina.
The Plaintiff alleges that the Defendants failed to adequately
reimburse his and other similarly situated delivery drivers'
automobile expenses, which they have incurred as per the
Defendants' requirement while performing their duties for the
primary benefits of the Defendants. The Defendants allegedly
employed a flawed reimbursement policy, which reimburses its
delivery drivers below the IRS business mileage reimbursement rate.
As a result of the Defendants' failure to reasonably approximate
the amount of their drivers' automobile expenses, their net wages
diminished beneath the federal minimum wage requirements, says the
Plaintiff.
Triad Pizza LLC and BD Pizza Co. LLC operate Domino's stores.
Bradley C. Davis is the director of the Corporate Defendants.[BN]
The Plaintiff is represented by:
Jacob J. Modla, Esq.
THE LAW OFFICE OF JASON E. TAYLOR P.C.
115 Elk Avenue
Rock Hill, SC 29730
Tel: (803) 328-0898
E-mail: jmodla@jasonetaylor.com
UNCORKED UPSTAIRS: Fails to Pay Non-exempt Employees' OT, Suit Says
-------------------------------------------------------------------
WILSON MALDONADO, on behalf of himself and all others similarly
situated v. UNCORKED UPSTAIRS, LLC d/b/a PINONS PIZZA COMPANY,
ANDREW RUBINSTEIN and HEATHER RUBINSTEIN, Case No. 2:22-cv-04451
(E.D.N.Y., July 28, 2022) seeks declaratory and injunctive relief,
unpaid wages including unpaid overtime, liquidated damages,
reasonable attorneys' fees, costs, and all other appropriate legal
and equitable relief, pursuant to the Fair Labor Standards Act and
the New York Labor Law.
According to the complaint, the Defendants never paid Plaintiff,
members of the FLSA Collective, and the Class Members overtime at
the rate of one and one half times their regular hourly rate for
the hours over 40 that they worked in a workweek although they
regularly worked between 5-20 or more overtime hours per week.
The Plaintiff was employed by the Defendants as a non-exempt
employee within the hospitality industry, assigned to work in
Defendants' pizzeria, for about six months in 2019 and then from
early 2020 until the end of 2020.
The Defendants operate Pinons Pizza Company. To prepare and serve
the food and drinks that they sell to the public, the Defendants
employed and continue to employ numerous non-exempt employees,
including Plaintiff, members of the FLSA Collective, and the Class
Members.[BN]
The Plaintiff is represented by:
David Harrison, Esq.
Julie Salwen, Esq.
HARRISON, HARRISON & ASSOCIATES, LTD.
110 State Highway 35, Suite 10
Red Bank, NJ 07701
Telephone: (718) 799-9111
E-mail: dharrison@nynjemploymentlaw.com
UPSTART HOLDINGS: Directors Breach Fiduciary Duties, Oconnor Says
-----------------------------------------------------------------
WILLIAM OCONNOR, Derivatively on Behalf of Nominal Defendant
UPSTART HOLDINGS, INC. v. JEFF HUBER, KERRY COOPER, SUKHINDER SINGH
CASSIDY, HILLIARD TERRY, MARY HENTGES, CIARAN O'KELLY, DAVE
GIROUARD, PAUL GU, and SANJAY DATTA, Defendants, and UPSTART
HOLDINGS, INC., Nominal Defendant, Case No. 2:22-cv-02961-EAS-KAJ
(S.D. Ohio, July 28, 2022) is a shareholder derivative action
brought on behalf of Upstart against certain officers and members
of the Company's Board for breaches of their fiduciary duties to
the Company and its shareholders.
Upstart is a financial technology company that uses artificial
intelligence ("AI") to underwrite personal loans predominantly to
borrowers whose limited or poor credit history precludes them from
obtaining loans from more traditional sources. The Company's
platform aggregates consumer demand for high-quality loans and
connects it a network of Upstart AI-enabled bank partners. Upstart
claims that its underwriting process enables banking partners to
originate loans with higher approval rates and lower loss rates
than traditional underwriting processes, while consumers
purportedly benefit from higher approval rates and lower interest
rates.
The Company'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.
As alleged, the Individual Defendants repeatedly stated that
Upstart's AI-based models could underwrite loans in a way that was
superior to traditional underwriting processes and lead to the
origination of less risky credit. Upstart touted the predictive
capabilities of its AI technology, which would purportedly allow it
to handle a recession "far better than a traditional system would."
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, says the suit.
These and similar statements were false and misleading. In reality,
the Company's AI-based underwriting model was unable to adequately
account for changing macroeconomic conditions, such as rising
interest rates, inflation, and changes from government stimulus
programs related to the Covid-19 pandemic, the suit asserts.
As a result, Upstart had been increasingly underwriting
progressively less creditworthy loans, requiring the Company to
fund a significant amount of loans from its balance sheet to
support loan transaction volume and stabilize its business, thereby
exposing Upstart to significant credit risk. As a result of the
Individual Defendants' misrepresentations, Upstart securities
traded at artificially inflated prices.
On May 9, 2022, the Company announced its financial results for the
first quarter of 2022. Upstart reported that it held approximately
$604 million worth of loans, notes, residuals on its balance sheet,
an amount significantly higher than previous periods and more than
double the $261 million that it held at the end of the previous
quarter.
The Company also confirmed that it had recently "loosened" its loan
modification policy to make it easier for Upstart borrowers to
obtain forbearance of their loan payments. This had the effect of
converting the status of "delinquent" loans to "current," and
likely masked the true extent of delinquent Upstart loans.
On this news, the Company's share price fell $43.52, or over 56%,
from a closing price of $77.13 per share on May 9, 2022, to a
closing price of $33.61 per share on May 10, 2022.
Additionally, the price of Upstart's Convertible Senior Notes
declined by $13.37, or approximately 18.2%, based on a comparison
of the last trade price on May 9, 2022 before the Company's
disclosures and the last trade price on May 10, 2022, the suit
contends.
The is, and has been at all relevant times, a shareholder of
Upstart.
Founded in 2012, Upstart purports to leverage the power of AI to
more accurately quantify the true risk of a loan by targeting fee
optimization, income fraud, acquisition targeting, loan stacking,
prepayment prediction, identity fraud and time-delimited default
prediction. The Company aims to enable lenders to approve more
loans with fewer defaults than traditional underwriting processes.
The Company went public through an initial public offering on
December 16, 2020. The Individual Defendants are directors of the
company.[BN]
The Plaintiff is represented by:
Seth D. Rigrodsky, Esq.
Timothy J. MacFall, Esq.
Gina M. Serra, Esq.
Vincent A. Licata, Esq.
RIGRODSKY LAW, P.A.
825 East Gate Boulevard, Suite 300
Garden City, NY 11530
Telephone: (516) 683-3516
E-mail: sdr@rl-legal.com
tjm@rl-legal.com
gms@rl-legal.com
vl@rl-legal.com
- and -
Daniel R. Mordarski, Esq.
LAW OFFICES OF DANIEL R.
MORDARSKI LLC
5 East Long Street, Suite 1100
Columbus, OH 43215
Telephone: (614) 221-3200
Facsimile: (614) 221-3201
E-mail: dan@mordarskilaw.com
WAL-MART ASSOCIATES: Fails to Pay Proper Wages, Yslas Suit Says
---------------------------------------------------------------
CHERYL YSLAS, on behalf of herself, and all other plaintiffs
similarly situated, known and unknown v. WAL-MART ASSOCIATES, INC.,
D/B/A SAM'S CLUB, AND SAM'S CLUB, A DIVISION OF WAL-MART STORES,
INC., Case No. 1:22-cv-01880-WJM (D. Colo., July 29, 2022) is class
action suit brought under the Fair Labor Standards Act, the
Colorado Minimum and Pay Standards, and the Colorado Wage Act as to
unpaid, earned and vested compensation that remains unpaid by the
Defendants.
The Defendants are Arkansas corporations that own and operate
approximately 15 Sam's Club membership-only warehouse retail stores
across the Denver-metro area and other locations in Colorado. Sam's
Club sells a wide variety of products including perishable food
products, alcohol, over-the-counter medications, and other consumer
products such as clothing, furniture, electronics (TVs, home
theatre equipment, computers), jewelry, and a host of other
consumer items.
While Plaintiff was initially advised at the start of her
employment with Sam's Club that she would be training lower-level,
hourly associates on Sam's Club's upselling techniques, including
selling Premium Memberships and Sam's Club credit cards, Plaintiff
spent much of her time working the registers like a regular
cashier, while associates simply watched Plaintiff work. The
Plaintiff was compensated on a salary basis during her entire
employment with Sam's Club. At times, Plaintiff was provided with
certain, non-discretionary bonuses for sales performance, says the
suit.[BN]
The Plaintiff is represented by:
Samuel D. Engelson, Esq.
BILLHORN LAW FIRM
53 W. Jackson Blvd., Suite 1137
Chicago, IL 60604
Telephone: (312)-853-1450
WEBER INC: Faces Michalski Securities Suit Over Stock Price Drop
----------------------------------------------------------------
ROBERT MICHALSKI, Individually and On Behalf of All Others
Similarly Situated v. WEBER INC., et al., Case No. 1:22-cv-03966
(N.D. Ill., July 29, 2022) is a class action on behalf of persons
and entities that purchased or otherwise acquired Weber Class A
common stock pursuant and/or traceable to the registration
statement and prospectus issued in connection with the Company's
August 2021 initial public offering pursuing claims against the the
Defendants under the Securities Act of 1933.
On August 6, 2021, the Company filed its prospectus on Form 424B4
with the U.S. Securities and Exchange Commission (SEC), which forms
part of the Registration Statement. In the IPO, the Company sold
approximately 17,857,143 shares of Class A common stock at a price
of $14.00 per share. The Company received proceeds of approximately
$237.5 million from the Offering, net of underwriting discounts and
commissions. The proceeds from the IPO were purportedly to be used
to effectuate certain reorganization transactions, for general
corporate purposes, and to repay certain debts.
On July 25, 2022, before the market opened, Weber announced its
preliminary third quarter 2022 financial results, including net
sales between $525 million and $530 million. The Company expected
to report a net loss, noting that "profitability was negatively
impacted by" several factors, including "promotional activity to
enhance retail sell through." Additionally, Weber announced that
Chris Scherzinger "is departing" from his roles as Chief Executive
Officer and director of the Company.
On this news, the Company's stock price fell $1.21 per share, or
16%, to close at $6.30 per share on July 25, 2022, on unusually
heavy trading volume.
By the commencement of this action, the Company's stock was trading
as low as $6.25 per share, a nearly 55% decline from the $14 per
share IPO price.
The Registration Statement was materially false and misleading and
omitted to state that Weber was reasonably likely to implement
price increases, says the suit.
As a result of Defendants' wrongful acts and omissions, and the
precipitous decline in the market value of the Company's
securities, Plaintiff and other Class members have suffered
significant losses and damages, the suit alleges.
The Plaintiff purchased Weber Class A common stock pursuant or
traceable to the Registration Statement issued in connection with
the Company's IPO, and suffered damages as a result of the alleged
federal securities law violations and false and/or misleading
statements and/or material omissions.
The Defendants include CHRISTOPHER SCHERZINGER, WILLIAM HORTON,
MARLA KILPATRICK, KELLY D. RAINKO, ELLIOTT HILL, MARTIN MCCOURT,
MELINDA R. RICH, JAMES C. STEPHEN, GOLDMAN SACHS & CO. LLC, BOFA
SECURITIES, INC., J.P. MORGAN SECURITIES LLC, BMO CAPITAL MARKETS
CORP., CITIGROUP GLOBAL MARKETS INC., UBS SECURITIES LLC, WELLS
FARGO SECURITIES, LLC, KEYBANC CAPITAL MARKETS INC., ACADEMY
SECURITIES, INC. CABRERA CAPITAL MARKETS LLC, SIEBERT WILLIAMS
SHANK & CO., LLC, and TELSEY ADVISORY GROUP LLC.
Weber is an outdoor cooking company that sells grills, smokers,
grilling accessories, and solid fuel products across the world. The
Individual Defendants are officers of the Company.[BN]
The Plaintiff is represented by:
Marvin A. Miller, Esq.
MILLER LAW LLC
145 S. Wells Street, 18th Floor
Chicago, IL 60606
Telephone: (312) 332-3400
E-mail: mmiller@millerlawllc.com
- and -
Robert V. Prongay, Esq.
Charles H. Linehan, Esq.
Pavithra Rajesh, Esq.
GLANCY PRONGAY & MURRAY LLP
1925 Century Park East, Suite 2100
Los Angeles, CA 90067
Telephone: (310) 201-9150
Facsimile: (310) 201-9160
WINTRUST FINANCIAL: Breaches Fiduciary Duties, Luckett Suit Says
----------------------------------------------------------------
LYNETTA LUCKETT, individually and as a representative of a class of
similarly situated persons, on behalf of the WINTRUST FINANCIAL
CORP. SAVINGS PLAN v. WINTRUST FINANCIAL CORP.; THE BOARD OF
TRUSTEES OF WINTRUST FINANCIAL CORP; THE ADMINISTRATIVE COMMITTEE
OF THE WINTRUST FINANCIAL CORP. RETIREMENT SAVINGS PLAN; and DOES
No. 1-20, Whose Names Are Currently Unknown, Case No. 1:22-cv-03968
(N.D. Ill., July 29, 2022) is class action suit against the
Defendants for breach of fiduciary duties under the Employee
Retirement Income Security Act.
The Defined contribution plans (e.g., 401(k) and 401(a) plans) that
are qualified as tax-deferred vehicles have become the primary form
of retirement saving in the United States and, as a result,
America's de facto retirement system. Unlike traditional defined
benefit retirement plans, in which the employer typically promises
a calculable benefit and assumes the risk with respect to high fees
or underperformance of pension plan assets used to fund defined
benefits, the participants in defined contribution plans bear the
risk of high fees and investment underperformance. The importance
of defined contribution plans to the United States retirement
system has become pronounced as employer-provided defined benefit
plans are increasingly rare as an offered and meaningful employee
benefit.
According to the complaint, as of December 31, 2020, the Plan had
5,902 participants with account balances and assets totaling
approximately $541 million, placing it in the top 0.2% of all
defined contribution plans by plan size. 1 Defined contribution
plans with substantial assets, like the Plan, have significant
bargaining power and the ability to demand low-cost administrative
and investment management services within the marketplace for
administration of defined contribution plans and the investment of
defined contribution assets. The marketplace for defined
contribution retirement plan services is well-established and can
be competitive when fiduciaries of defined contribution retirement
plans act in an informed and prudent fashion.
The Defendants are fiduciaries under ERISA, and, as such, owe
specific duties to the Plan and its participants and beneficiaries,
including obligations to act for the exclusive benefit of
participants, ensure that the investment options offered through
the Plan are prudent and diverse, and ensure that Plan expenses are
fair and reasonable in relation the services obtained.
The Defendants have breached their fiduciary duties to the Plan by
selecting, retaining, and/or otherwise ratifying poorly-performing
investments instead of offering more prudent alternative
investments that were readily available at the time Defendants
selected and retained the funds at issue and throughout the Class
Period, says the suit.
The Plaintiff is a former employee of Wintrust and former
participant in the Plan under 29 U.S.C. section 1002(7). The
Plaintiff is a resident of Chicago, Illinois. During the Class
Period, Plaintiff maintained an investment through the Plan in the
BlackRock LifePath Index 2050 Fund and the JPMorgan U.S. Government
Money Market Fund.
Wintrust is a public Illinois corporation headquartered in
Rosemont, Illinois. Wintrust is a financial holding company that
operates 15 chartered community banks in northern Illinois and
southern Wisconsin.
The Plan is a participant-directed defined contribution plan,
meaning participants direct the investment of their contributions
into various investment options offered by the Plan.[BN]
The Plaintiff is represented by:
Ronald S. Kravitz, Esq.
James E. Miller, Esq.
Laurie Rubinow, Esq.
James C. Shah, Esq.
Alec J. Berin, Esq.
Kolin C. Tang, Esq.
MILLER SHAH LLP
Embarcadero Center, Suite 1650
San Francisco, CA 94111
Telephone: (866) 540-5505
Facsimile: (866) 300-7367
E-mail: rskravitz@millershah.com
jemiller@millershah.com
lrubinow@millershah.com
jcshah@millershah.com
ajberin@millershah.com
kctang@millershah.com
*********
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