/raid1/www/Hosts/bankrupt/CAR_Public/220824.mbx
C L A S S A C T I O N R E P O R T E R
Wednesday, August 24, 2022, Vol. 24, No. 163
Headlines
3M COMPANY: Burton Sues Over Exposure to Toxic Foams
3M COMPANY: D'orta Sues Over Exposure to Toxic Chemicals & Foams
3M COMPANY: Nepon Sues Over Exposure to Toxic Aqueous Foams
3M COMPANY: Zelny Sues Over Exposure to Toxic Film-Forming Foams
ACTS RETIREMENT: Faces Class Action Over Alleged Data Breach
ALLIANZ LIFE: Small Suit Removed to C.D. California
ALLIED CREW: Beckford Sues Over Unpaid Minimum and Overtime Wages
AMAZON.COM INC: Heck Suit Removed to N.D. California
AMERICAN CORADIUS: Jones FDCPA Suit Removed to D. New Jersey
BEECH-NUT NUTRITION: Cullors Suit Transferred to S.D. New York
BHG XXXIV: Lawson Files Suit in E.D. Kentucky
BLUE DIAMOND GROWERS: Muller Suit Removed to E.D. Missouri
BMW OF NORTH AMERICA: Moininazeri Files Suit in Cal. Super. Ct.
COINBASE GLOBAL: Samuel Law Firm Files Investors' Class Action
FAT BRANDS: Offers $2.5M, Stock Issuance to Settle Securities Suit
FORD MOTOR: E.D. California Narrows Claims in Miller Class Suit
HARLEY-DAVIDSON INC: Suits Filed Over Antitrust Law Violations
HCA HEALTHCARE: Brevard, NC Moves to Consolidate Antitrust Suits
ILLINOIS: Refusal to Vacate 1972 Decree in Shakman Suit Reversed
JELD-WEN INC: Court Grants in Part Bid to Dismiss Rivera Class Suit
LIFESTANCE HEALTH: Bernstein Liebhard Discloses Securities Suit
LIFESTANCE HEALTH: Bids for Lead Plaintiff Appointment Due Oct. 17
MCG HEALTH: Saiki Bid to Consolidate Denied w/o Prejudice
MCG HEALTH: Saiki Bid to Consolidate Denied w/o Prejudice
MCG HEALTH: Saiki Bid to Consolidate Nixed w/ Prejudice
NEILMED PHARMACEUTICALS: Bid to Certify Class in Cooper Suit Denied
NESPRESSO USA: Faces Class Action Over Deceptive Product Warranties
NEW YORK LIFE: S.D. New York Narrows Claims in Krohnengold Suit
NEW YORK: Tucker Files Appeal to N.Y. Appellate Div.
NUMERICA CREDIT: Nixing of Silvey's Contract-Related Claims Upheld
SOLANA LABS: Bronstein Gewirtz & Grossman Files Securities Suit
SOUTHEASTERN PROVISION: Judge OKs Suit Status for Immigrant Workers
TASMANIA: Ex Detainees Lodge Class Action Over Sexual Abuse
TENNESSEE: Court Certifies Class and Subclass in A.M.C. v. Smith
TEXAS: Lt. Gov. Appeals Ruling Enforcing Subpoenas to 5th Cir.
TUYA INC: Robbins LLP Files Lawsuit Over Securities Violations
WAL-MART STORES: N.M. App. Flips Award of Attys.' Fees in Puma Suit
WELLS FARGO: Bids for Lead Plaintiff Appointment Due August 29
*********
3M COMPANY: Burton Sues Over Exposure to Toxic Foams
----------------------------------------------------
Robert Burton, and other similarly situated v. 3M COMPANY (f/k/a
Minnesota Mining and Manufacturing, Co.), AGC CHEMICALS AMERICAS,
INC., AMEREX CORPORATION, ARCHROMA MANAGEMENT, LLC, ARCHROMA U.S.,
INC., ARKEMA, INC., individually and as successor-in-interest to
Atofina, S.A., BASF CORPORATION, individually and as
successor-in-interest to Ciba, Inc., BUCKEYE FIRE EQUIPMENT CO.,
CARRIER GLOBAL CORPORATION, individually and as successor-interest
to Kidde-Fenwal, Inc., CHEMDESIGN PRODUCTS, INC., CHEMGUARD, INC.,
CHEMICALS, INC., CHUBB FIRE, LTD., CLARIANT CORPORATION, CORTEVA,
INC., individually and as successor-in-interest to DuPont Chemical
Solutions Enterprise, DEEPWATER CHEMICALS, INC., DUPONT DE NEMOURS,
INC., individually and as successor-in-interest to DuPont Chemical
Solutions Enterprise, DYNAX CORPORATION, E.I. DUPONT DE NEMOURS &
COMPANY, individually and as successor-in-interest to DuPont
Chemical Solutions Enterprise, KIDDE-FENWAL, INC., individually and
as successor-in-interest to Kidde Fire Fighting, Inc., KIDDE PLC,
INC., NATION FORD CHEMICAL COMPANY, NATIONAL FOAM, INC., THE
CHEMOURS COMPANY, individually and as successor-in-interest to
DuPont Chemical Solutions Enterprise, THE CHEMOURS COMPANY FC, LLC,
individually and as successor-in-interest to DuPont Chemical
Solutions Enterprise, TYCO FIRE PRODUCTS LP, as
successor-in-interest to The Ansul Company, UNITED TECHNOLOGIES
CORPORATION, and UTC FIRE & SECURITY AMERICAS CORPORATION (f/k/a GE
Interlogix, Inc.), Case No. 2:22-cv-02171-RMG (D.S.C., July 7,
2022), is brought for damages for personal injury resulting from
exposure to aqueous film-forming foams ("AFFF") containing the
toxic chemicals collectively known as per and polyfluoroalkyl
substances ("PFAS"). PFAS includes, but is not limited to,
perfluorooctanoic acid ("PFOA") and perfluorooctane sulfonic acid
("PFOS") and related chemicals including those that degrade to PFOA
and/or PFOS.
AFFF is a specialized substance designed to extinguish
petroleum-based fires. It has been used for decades by military and
civilian firefighters to extinguish fires in training and in
response to Class B fires. The Defendants collectively designed,
marketed, developed, manufactured, distributed, released, trained
users, produced instructional materials, promoted, sold, and/or
otherwise released into the stream of commerce AFFF with knowledge
that it contained highly toxic and bio persistent PFASs, which
would expose end users of the product to the risks associated with
PFAS. Further, the Defendants designed, marketed, developed,
manufactured, distributed, released, trained users, produced
instructional materials, promoted, sold and/or otherwise handled
and/or used underlying chemicals and/or products added to AFFF
which contained PFAS for use in firefighting.
PFAS binds to proteins in the blood of humans exposed to the
material and remains and persists over long periods of time. Due to
their unique chemical structure, PFAS accumulates in the blood and
body of exposed individuals. PFAS are highly toxic and carcinogenic
chemicals. Defendants knew, or should have known, that PFAS remain
in the human body while presenting significant health risks to
humans.
The Defendants' PFAS-containing AFFF products were used by the
Plaintiff in their intended manner, without significant change in
the products' condition. Plaintiff was unaware of the dangerous
properties of the Defendants' AFFF products and relied on the
Defendants' instructions as to the proper handling of the products.
Plaintiff's consumption, inhalation and/or dermal absorption of
PFAS from Defendant's AFFF products caused Plaintiff to develop the
serious medical conditions and complications alleged herein.
Through this action, the Plaintiff seeks to recover compensatory
and punitive damages arising out of the permanent and significant
damages sustained as a direct result of exposure to the Defendants'
AFFF products at various locations during the course of Plaintiff's
training and firefighting activities. Plaintiff further seeks
injunctive, equitable, and declaratory relief arising from the
same, says the complaint.
The Plaintiff regularly used, and was thereby directly exposed to,
AFFF in training and to extinguish fires during his working career
as a military and/or civilian firefighter and was diagnosed with
Colon cancer as a result of exposure to the Defendants' AFFF
products.
The Defendants are designers, marketers, developers, manufacturers,
distributors, releasers, instructors, promotors and sellers of PFAS
containing AFFF products or underlying PFAS containing chemicals
used in AFFF production.[BN]
The Plaintiff is represented by:
Richard Zgoda, Jr. , Esq.
Steven D. Gacovino, Esq.
GACOVINO, LAKE & ASSOCIATES, P.C.
270 West Main Street
Sayville, NY 11782
Phone: 631-600-0000
Facsimile: 631-543-5450
- and -
Gregory A. Cade, Esq.
Gary A. Anderson, Esq.
Kevin B. McKie, Esq.
ENVIRONMENTAL LITIGATION GROUP, P.C.
2160 Highland Avenue South
Birmingham, AL 35205
Phone: 205-328-9200
Facsimile: 205-328-9456
3M COMPANY: D'orta Sues Over Exposure to Toxic Chemicals & Foams
----------------------------------------------------------------
Dominic D'orta, and other similarly situated v. 3M COMPANY (f/k/a
Minnesota Mining and Manufacturing, Co.), AGC CHEMICALS AMERICAS,
INC., AMEREX CORPORATION, ARCHROMA MANAGEMENT, LLC, ARCHROMA U.S.,
INC., ARKEMA, INC., individually and as successor-in-interest to
Atofina, S.A., BASF CORPORATION, individually and as
successor-in-interest to Ciba, Inc., BUCKEYE FIRE EQUIPMENT CO.,
CARRIER GLOBAL CORPORATION, individually and as successor-interest
to Kidde-Fenwal, Inc., CHEMDESIGN PRODUCTS, INC., CHEMGUARD, INC.,
CHEMICALS, INC., CHUBB FIRE, LTD., CLARIANT CORPORATION, CORTEVA,
INC., individually and as successor-in-interest to DuPont Chemical
Solutions Enterprise, DEEPWATER CHEMICALS, INC., DUPONT DE NEMOURS,
INC., individually and as successor-in-interest to DuPont Chemical
Solutions Enterprise, DYNAX CORPORATION, E.I. DUPONT DE NEMOURS &
COMPANY, individually and as successor-in-interest to DuPont
Chemical Solutions Enterprise, KIDDE-FENWAL, INC., individually and
as successor-in-interest to Kidde Fire Fighting, Inc., KIDDE PLC,
INC., NATION FORD CHEMICAL COMPANY, NATIONAL FOAM, INC., THE
CHEMOURS COMPANY, individually and as successor-in-interest to
DuPont Chemical Solutions Enterprise, THE CHEMOURS COMPANY FC, LLC,
individually and as successor-in-interest to DuPont Chemical
Solutions Enterprise, TYCO FIRE PRODUCTS LP, as
successor-in-interest to The Ansul Company, UNITED TECHNOLOGIES
CORPORATION, and UTC FIRE & SECURITY AMERICAS CORPORATION (f/k/a GE
Interlogix, Inc.), Case No. 2:22-cv-02173-RMG (D.S.C., July 7,
2022), is brought for damages for personal injury resulting from
exposure to aqueous film-forming foams ("AFFF") containing the
toxic chemicals collectively known as per and polyfluoroalkyl
substances ("PFAS"). PFAS includes, but is not limited to,
perfluorooctanoic acid ("PFOA") and perfluorooctane sulfonic acid
("PFOS") and related chemicals including those that degrade to PFOA
and/or PFOS.
AFFF is a specialized substance designed to extinguish
petroleum-based fires. It has been used for decades by military and
civilian firefighters to extinguish fires in training and in
response to Class B fires. The Defendants collectively designed,
marketed, developed, manufactured, distributed, released, trained
users, produced instructional materials, promoted, sold, and/or
otherwise released into the stream of commerce AFFF with knowledge
that it contained highly toxic and bio persistent PFASs, which
would expose end users of the product to the risks associated with
PFAS. Further, the Defendants designed, marketed, developed,
manufactured, distributed, released, trained users, produced
instructional materials, promoted, sold and/or otherwise handled
and/or used underlying chemicals and/or products added to AFFF
which contained PFAS for use in firefighting.
PFAS binds to proteins in the blood of humans exposed to the
material and remains and persists over long periods of time. Due to
their unique chemical structure, PFAS accumulates in the blood and
body of exposed individuals. PFAS are highly toxic and carcinogenic
chemicals. Defendants knew, or should have known, that PFAS remain
in the human body while presenting significant health risks to
humans.
The Defendants' PFAS-containing AFFF products were used by the
Plaintiff in their intended manner, without significant change in
the products' condition. Plaintiff was unaware of the dangerous
properties of the Defendants' AFFF products and relied on the
Defendants' instructions as to the proper handling of the products.
Plaintiff's consumption, inhalation and/or dermal absorption of
PFAS from Defendant's AFFF products caused Plaintiff to develop the
serious medical conditions and complications alleged herein.
Through this action, the Plaintiff seeks to recover compensatory
and punitive damages arising out of the permanent and significant
damages sustained as a direct result of exposure to the Defendants'
AFFF products at various locations during the course of Plaintiff's
training and firefighting activities. Plaintiff further seeks
injunctive, equitable, and declaratory relief arising from the
same, says the complaint.
The Plaintiff regularly used, and was thereby directly exposed to,
AFFF in training and to extinguish fires during his working career
as a military and/or civilian firefighter and was diagnosed with
basal cell carcinoma cancer as a result of exposure to the
Defendants' AFFF products.
The Defendants are designers, marketers, developers, manufacturers,
distributors, releasers, instructors, promotors and sellers of PFAS
containing AFFF products or underlying PFAS containing chemicals
used in AFFF production.[BN]
The Plaintiff is represented by:
Richard Zgoda, Jr. , Esq.
Steven D. Gacovino, Esq.
GACOVINO, LAKE & ASSOCIATES, P.C.
270 West Main Street
Sayville, NY 11782
Phone: 631-600-0000
Facsimile: 631-543-5450
- and -
Gregory A. Cade, Esq.
Gary A. Anderson, Esq.
Kevin B. McKie, Esq.
ENVIRONMENTAL LITIGATION GROUP, P.C.
2160 Highland Avenue South
Birmingham, AL 35205
Phone: 205-328-9200
Facsimile: 205-328-9456
3M COMPANY: Nepon Sues Over Exposure to Toxic Aqueous Foams
-----------------------------------------------------------
Richard Nepon, and other similarly situated v. 3M COMPANY (f/k/a
Minnesota Mining and Manufacturing, Co.), AGC CHEMICALS AMERICAS,
INC., AMEREX CORPORATION, ARCHROMA MANAGEMENT, LLC, ARCHROMA U.S.,
INC., ARKEMA, INC., individually and as successor-in-interest to
Atofina, S.A., BASF CORPORATION, individually and as
successor-in-interest to Ciba, Inc., BUCKEYE FIRE EQUIPMENT CO.,
CARRIER GLOBAL CORPORATION, individually and as successor-interest
to Kidde-Fenwal, Inc., CHEMDESIGN PRODUCTS, INC., CHEMGUARD, INC.,
CHEMICALS, INC., CHUBB FIRE, LTD., CLARIANT CORPORATION, CORTEVA,
INC., individually and as successor-in-interest to DuPont Chemical
Solutions Enterprise, DEEPWATER CHEMICALS, INC., DUPONT DE NEMOURS,
INC., individually and as successor-in-interest to DuPont Chemical
Solutions Enterprise, DYNAX CORPORATION, E.I. DUPONT DE NEMOURS &
COMPANY, individually and as successor-in-interest to DuPont
Chemical Solutions Enterprise, KIDDE-FENWAL, INC., individually and
as successor-in-interest to Kidde Fire Fighting, Inc., KIDDE PLC,
INC., NATION FORD CHEMICAL COMPANY, NATIONAL FOAM, INC., THE
CHEMOURS COMPANY, individually and as successor-in-interest to
DuPont Chemical Solutions Enterprise, THE CHEMOURS COMPANY FC, LLC,
individually and as successor-in-interest to DuPont Chemical
Solutions Enterprise, TYCO FIRE PRODUCTS LP, as
successor-in-interest to The Ansul Company, UNITED TECHNOLOGIES
CORPORATION, and UTC FIRE & SECURITY AMERICAS CORPORATION (f/k/a GE
Interlogix, Inc.), Case No. 2:22-cv-02170-RMG (D.S.C., July 7,
2022), is brought for damages for personal injury resulting from
exposure to aqueous film-forming foams ("AFFF") containing the
toxic chemicals collectively known as per and polyfluoroalkyl
substances ("PFAS"). PFAS includes, but is not limited to,
perfluorooctanoic acid ("PFOA") and perfluorooctane sulfonic acid
("PFOS") and related chemicals including those that degrade to PFOA
and/or PFOS.
AFFF is a specialized substance designed to extinguish
petroleum-based fires. It has been used for decades by military and
civilian firefighters to extinguish fires in training and in
response to Class B fires. The Defendants collectively designed,
marketed, developed, manufactured, distributed, released, trained
users, produced instructional materials, promoted, sold, and/or
otherwise released into the stream of commerce AFFF with knowledge
that it contained highly toxic and bio persistent PFASs, which
would expose end users of the product to the risks associated with
PFAS. Further, the Defendants designed, marketed, developed,
manufactured, distributed, released, trained users, produced
instructional materials, promoted, sold and/or otherwise handled
and/or used underlying chemicals and/or products added to AFFF
which contained PFAS for use in firefighting.
PFAS binds to proteins in the blood of humans exposed to the
material and remains and persists over long periods of time. Due to
their unique chemical structure, PFAS accumulates in the blood and
body of exposed individuals. PFAS are highly toxic and carcinogenic
chemicals. Defendants knew, or should have known, that PFAS remain
in the human body while presenting significant health risks to
humans.
The Defendants' PFAS-containing AFFF products were used by the
Plaintiff in their intended manner, without significant change in
the products' condition. Plaintiff was unaware of the dangerous
properties of the Defendants' AFFF products and relied on the
Defendants' instructions as to the proper handling of the products.
Plaintiff's consumption, inhalation and/or dermal absorption of
PFAS from Defendant's AFFF products caused Plaintiff to develop the
serious medical conditions and complications alleged herein.
Through this action, the Plaintiff seeks to recover compensatory
and punitive damages arising out of the permanent and significant
damages sustained as a direct result of exposure to the Defendants'
AFFF products at various locations during the course of Plaintiff's
training and firefighting activities. Plaintiff further seeks
injunctive, equitable, and declaratory relief arising from the
same, says the complaint.
The Plaintiff regularly used, and was thereby directly exposed to,
AFFF in training and to extinguish fires during his working career
as a military and/or civilian firefighter and was diagnosed with
prostate cancer as a result of exposure to the Defendants' AFFF
products.
The Defendants are designers, marketers, developers, manufacturers,
distributors, releasers, instructors, promotors and sellers of PFAS
containing AFFF products or underlying PFAS containing chemicals
used in AFFF production.[BN]
The Plaintiff is represented by:
Richard Zgoda, Jr. , Esq.
Steven D. Gacovino, Esq.
GACOVINO, LAKE & ASSOCIATES, P.C.
270 West Main Street
Sayville, NY 11782
Phone: 631-600-0000
Facsimile: 631-543-5450
- and -
Gregory A. Cade, Esq.
Gary A. Anderson, Esq.
Kevin B. McKie, Esq.
ENVIRONMENTAL LITIGATION GROUP, P.C.
2160 Highland Avenue South
Birmingham, AL 35205
Phone: 205-328-9200
Facsimile: 205-328-9456
3M COMPANY: Zelny Sues Over Exposure to Toxic Film-Forming Foams
----------------------------------------------------------------
Andrzej Zelny, and other similarly situated v. 3M COMPANY (f/k/a
Minnesota Mining and Manufacturing, Co.), AGC CHEMICALS AMERICAS,
INC., AMEREX CORPORATION, ARCHROMA MANAGEMENT, LLC, ARCHROMA U.S.,
INC., ARKEMA, INC., individually and as successor-in-interest to
Atofina, S.A., BASF CORPORATION, individually and as
successor-in-interest to Ciba, Inc., BUCKEYE FIRE EQUIPMENT CO.,
CARRIER GLOBAL CORPORATION, individually and as successor-interest
to Kidde-Fenwal, Inc., CHEMDESIGN PRODUCTS, INC., CHEMGUARD, INC.,
CHEMICALS, INC., CHUBB FIRE, LTD., CLARIANT CORPORATION, CORTEVA,
INC., individually and as successor-in-interest to DuPont Chemical
Solutions Enterprise, DEEPWATER CHEMICALS, INC., DUPONT DE NEMOURS,
INC., individually and as successor-in-interest to DuPont Chemical
Solutions Enterprise, DYNAX CORPORATION, E.I. DUPONT DE NEMOURS &
COMPANY, individually and as successor-in-interest to DuPont
Chemical Solutions Enterprise, KIDDE-FENWAL, INC., individually and
as successor-in-interest to Kidde Fire Fighting, Inc., KIDDE PLC,
INC., NATION FORD CHEMICAL COMPANY, NATIONAL FOAM, INC., THE
CHEMOURS COMPANY, individually and as successor-in-interest to
DuPont Chemical Solutions Enterprise, THE CHEMOURS COMPANY FC, LLC,
individually and as successor-in-interest to DuPont Chemical
Solutions Enterprise, TYCO FIRE PRODUCTS LP, as
successor-in-interest to The Ansul Company, UNITED TECHNOLOGIES
CORPORATION, and UTC FIRE & SECURITY AMERICAS CORPORATION (f/k/a GE
Interlogix, Inc.), Case No. 2:22-cv-02166-RMG (D.S.C., July 7,
2022), is brought for damages for personal injury resulting from
exposure to aqueous film-forming foams ("AFFF") containing the
toxic chemicals collectively known as per and polyfluoroalkyl
substances ("PFAS"). PFAS includes, but is not limited to,
perfluorooctanoic acid ("PFOA") and perfluorooctane sulfonic acid
("PFOS") and related chemicals including those that degrade to PFOA
and/or PFOS.
AFFF is a specialized substance designed to extinguish
petroleum-based fires. It has been used for decades by military and
civilian firefighters to extinguish fires in training and in
response to Class B fires. The Defendants collectively designed,
marketed, developed, manufactured, distributed, released, trained
users, produced instructional materials, promoted, sold, and/or
otherwise released into the stream of commerce AFFF with knowledge
that it contained highly toxic and bio persistent PFASs, which
would expose end users of the product to the risks associated with
PFAS. Further, the Defendants designed, marketed, developed,
manufactured, distributed, released, trained users, produced
instructional materials, promoted, sold and/or otherwise handled
and/or used underlying chemicals and/or products added to AFFF
which contained PFAS for use in firefighting.
PFAS binds to proteins in the blood of humans exposed to the
material and remains and persists over long periods of time. Due to
their unique chemical structure, PFAS accumulates in the blood and
body of exposed individuals. PFAS are highly toxic and carcinogenic
chemicals. Defendants knew, or should have known, that PFAS remain
in the human body while presenting significant health risks to
humans.
The Defendants' PFAS-containing AFFF products were used by the
Plaintiff in their intended manner, without significant change in
the products' condition. Plaintiff was unaware of the dangerous
properties of the Defendants' AFFF products and relied on the
Defendants' instructions as to the proper handling of the products.
Plaintiff's consumption, inhalation and/or dermal absorption of
PFAS from Defendant's AFFF products caused Plaintiff to develop the
serious medical conditions and complications alleged herein.
Through this action, the Plaintiff seeks to recover compensatory
and punitive damages arising out of the permanent and significant
damages sustained as a direct result of exposure to the Defendants'
AFFF products at various locations during the course of Plaintiff's
training and firefighting activities. Plaintiff further seeks
injunctive, equitable, and declaratory relief arising from the
same, says the complaint.
The Plaintiff regularly used, and was thereby directly exposed to,
AFFF in training and to extinguish fires during his working career
as a military and/or civilian firefighter and was diagnosed with
prostate cancer as a result of exposure to the Defendants' AFFF
products.
The Defendants are designers, marketers, developers, manufacturers,
distributors, releasers, instructors, promotors and sellers of PFAS
containing AFFF products or underlying PFAS containing chemicals
used in AFFF production.[BN]
The Plaintiff is represented by:
Richard Zgoda, Jr. , Esq.
Steven D. Gacovino, Esq.
GACOVINO, LAKE & ASSOCIATES, P.C.
270 West Main Street
Sayville, NY 11782
Phone: 631-600-0000
Facsimile: 631-543-5450
- and -
Gregory A. Cade, Esq.
Gary A. Anderson, Esq.
Kevin B. McKie, Esq.
ENVIRONMENTAL LITIGATION GROUP, P.C.
2160 Highland Avenue South
Birmingham, AL 35205
Phone: 205-328-9200
Facsimile: 205-328-9456
ACTS RETIREMENT: Faces Class Action Over Alleged Data Breach
------------------------------------------------------------
natlawreview.com reports that ACTS Retirement Services, Inc.
(ACTS), a non-profit corporation that manages retirement
communities, suffered a data breach in April 2022, which led to
unauthorized access to thousands of current and former employees'
personal information. Specifically, names, Social Security numbers,
and financial information were effected. As a result of this
incident, ACTS now faces a data breach class action suit in which
the plaintiffs allege that ACTS failed to implement adequate
security systems to protect employee information, which led to the
access of their information by cyber criminals. The complaint
alleges that the incident will lead to a heightened risk of
identity theft and fraud for all affected individuals. Furthermore,
the complaint alleges that the credit monitoring and identity theft
protection services offered were insufficient to protect the
proposed class members.
The lead plaintiff in the action claims that ACTS retains
employees' information for years and "even decades" after they stop
working at the business.
This class action may act as a reminder to reassess the data your
own company collects, how it is stored, maintained and protected,
and to determine your business need and any legal requirements
around retention of those data so that you can destroy or delete
any data that you no longer need or are required to retain. [GN]
ALLIANZ LIFE: Small Suit Removed to C.D. California
---------------------------------------------------
Lawanda Small, Individually, and on Behalf of the Class v. ALLIANZ
LIFE INSURANCE COMPANY OF NORTH AMERICA, a Minnesota Corporation,
and DOES 1-10; inclusive, Case No. 22STCV17838 was removed from the
Los Angeles County Superior Court, to the United States District
Court for the Central District of California on July 7, 2022, and
assigned Case No. 2:22-cv-04640-TJH-KES.
The Plaintiff alleges that Allianz Life wrongfully terminated a
Flexible Premium Adjustable Life Policy, Policy No. xxx053 (the
"Policy"), insuring the life of her husband, Carl L. Small, with a
face amount of $75,000 or more, following nonpayment of sufficient
premium to keep the policy in force. The Plaintiff asserts a
purported claim for violation of California's Unfair Competition
Law.[BN]
The Defendant is represented by:
Zoe K. Wilhelm, Esq.
FAEGRE DRINKER BIDDLE & REATH LLP
1800 Century Park East, Suite 1500
Los Angeles, CA 90067
Phone: (310) 203-4000
Fax: (310) 229-1285
Email: zoe.wilhelm@faegredrinker.com
ALLIED CREW: Beckford Sues Over Unpaid Minimum and Overtime Wages
-----------------------------------------------------------------
Livingston Beckford, on behalf of himself and others v. ALLIED CREW
TRANSPORT SERVICES, LLC; ANTONIO WAITE; RENEE WAITE; UTON BRIGHT;
CELSO BRIGHT; and DOES 1 to 25, inclusive, Case No. 22STCV23375
(Cal. Super. Ct., Los Angeles Cty., July 19, 2022), is brought
against the Defendant for their failure to pay minimum and overtime
wages in violation of the California Labor Code.
The Plaintiff and others were not paid for all hours worked and
consistently worked "off the clock." This is so because the company
had a policy and practice of rounding down hours to the detriment
of employees, who were not being paid for all hours worked.
Furthermore, to the extent employees such as Plaintiff and others
worked through their meal periods, they were not compensated for
that time, which would be akin to a minimum wage violation. The
Defendant violated Labor Code because it failed to pay the
Plaintiff and other similarly situated aggrieved employees
overtime, even though they worked more than 8 hours per day, 12
hours per day, and/or 40 hours per week throughout their
employment, says the complaint.
The Plaintiff was a driver for ALLIED CREW.
ALLIED CREW TRANSPORT SERVICES, LLC is and was a California
corporation, doing business in Los Angeles County, California.[BN]
The Plaintiff is represented by:
Harout Messrelian, Esq.
MESSRELIAN LAW INC.
500 N. Central Ave., Suite 840
Glendale, CA 91203
Phone: (818) 484-6531
Facsimile: (818)956-1983
Email: hm@messrelianlaw.com
AMAZON.COM INC: Heck Suit Removed to N.D. California
----------------------------------------------------
Julia Heck, on behalf of herself and all others similarly situated
v. AMAZON.COM, INC., Case No. CV2200665 was removed from the
Superior Court of California for the County of Humboldt, to the
United States District Court for the Northern District of
California on July 7, 2022, and assigned Case No.
4:22-cv-03986-JSW.
In the Complaint, the Plaintiff seeks damages, declaratory and
injunctive relief, and other relief individually and on behalf of a
class of California consumers based on allegations that Amazon
violated California's Consumer's Legal Remedies Act ("CLRA"), and
Unfair Competition Law ("UCL"), by failing to comply with
California's Automatic Renewal Law, when Amazon charged Amazon
Prime customers on a recurring basis for an Audible
subscription.[BN]
The Defendant is represented by:
Jedediah Wakefield, Esq.
Matthew Becker, Esq.
Esther D. Galan, Esq.
FENWICK & WEST LLP
555 California Street, 12th Floor
San Francisco, CA 94104
Phone: 415.875.2300
Facsimile: 415.281.1350
Email: jwakefield@fenwick.com
mbecker@fenwick.com
egalan@fenwick.com
- and -
Brian D. Buckley, Esq.
FENWICK & WEST LLP
1191 Second Avenue, 10th Floor
Seattle, WA 98101
Phone: 206.389.4510
Facsimile: 206.389.4511
Email: bbuckley@fenwick.com
- and -
Janie Yoo Miller, Esq.
FENWICK & WEST LLP
228 Santa Monica Boulevard, Suite 300
Santa Monica, CA 90401
Phone: 310.434.5400
Facsimile: 650.938.5200
Email: jmiller@fenwick.com
AMERICAN CORADIUS: Jones FDCPA Suit Removed to D. New Jersey
------------------------------------------------------------
The case styled as Amber Jones, individually and on behalf of those
similarly situated v. American Coradius International LLC, John
Does 1 to 10, Case No. MRS-L-000895-22 was removed from the
Superior Court Morris County, to the U.S. District Court for the
District of New Jersey on June 30, 2022.
The District Court Clerk assigned Case No. 2:22-cv-04353-CCC-MAH to
the proceeding.
The lawsuit is brought over alleged violation of the Fair Debt
Collection Practices Act.
American Coradius International LLC --
https://www.americancoradiusinternational.com/ -- is a full service
financial service agency representing banks and finance companies
on a national level.[BN]
The Plaintiff is represented by:
Philip D. Stern, Esq.
Yongmoon Kim, Esq.
KIM LAW FIRM, LLC
411 Hackensack Ave Ste 701
Hackensack, NJ 07601
Phone: (201) 273-7117
Fax: (201) 273-7117
Email: pstern@kimlf.com
ykim@kimlf.com
The Defendants are represented by:
Aaron Raphael Easley, Esq.
SESSIONS, ISRAEL& SHARTLE, LLC
3 Cross Creek Drive
Flemington, NJ 08822
Phone: (908) 237-1660
Fax: (908) 237-1663
Email: aeasley@sessions.legal
BEECH-NUT NUTRITION: Cullors Suit Transferred to S.D. New York
--------------------------------------------------------------
The case styled as Stacia Cullors, an individual, L.C., N.C., V.C.,
through their guardian ad litem Stacia Cullors; Anthony Bacani, an
individual, D.B., E.B. through their guardian ad litem Anthony
Bacani; Jennifer Cullors, an individual, A.C., J.C., through their
guardian ad litem Jennifer Cullors v. Beech-Nut Nutrition Company;
Nurture, Inc. formerly known as: Nurture, LLC; Plum, Inc. doing
business as: Plum Organics; Gerber Products Company; Walmart Inc.,
Sprout Foods, Inc., Does 1 through 20 inclusive, Case No.
2:22-cv-02324 was transferred from the Superior Court of the State
of California, County of Orange, to the U.S. District Court for the
Southern District of New York on June 27, 2022.
The District Court Clerk assigned Case No. 1:22-cv-05402-MKV to the
proceeding.
The nature of suit is stated as Other Fraud.
Beech-Nut Nutrition Corporation -- https://www.beechnut.com/ -- is
a baby food company owned by the Swiss branded consumer-goods firm
Hero Group.[BN]
The Plaintiff is represented by:
Azar Mouzari, Esq.
GIBSON, DUNN & CRUTCHER LLP
333 South Grand Avenue
Los Angeles, CA 90071-3197
Phone: (213) 229-7659
Fax: (213) 229-6659
- and -
Azar Mouzari, Esq.
BEVERLY HILLS TRIAL ATTORNEYS
468 N. Camden Drive, Suite 238
Beverly Hills, CA 90210
Phone: (310) 926-5645
Fax: (424) 286-0963
Email: azar@bhtrialattorneys.com
- and -
Dayton P. Haigney, Esq.
DAYTON PETER HAIGNEY, III
233 Broadway, Suite 2348
New York, NY 10279
Phone: (212) 557-5590
Email: dphlaw@msn.com
- and -
Nilofar Nouri, Esq.
BEVERLY HILLS TRIAL ATTORNEYS PC
468 N. Camden Drive Suite 238
Beverly Hills, CA 90210
Phone: (818) 645-7532
Fax: (424) 286-0963
The Defendants are represented by:
Livia M. Kiser, Esq.
LATHAM & WATKINS LLP (IL)
330 North Wabash Avenue, Suite 2800
Chicago, IL 60611
Phone: (312) 876-6568
Fax: (312) 993-9767
Email: lkiser@kslaw.com
- and -
Colleen Gulliver, Esq.
DLA PIPER US LLP (NY)
1251 Avenue of the Americas, 27th Floor
New York, NY 10020
Phone: (212) 335-4500
Fax: (212) 335-4501
Email: Colleen.Gulliver@us.dlapiper.com
- and -
Angela Christine Agrusa, Esq.
DLA PIPER LLP US
North Tower
2000 Avenue of the Stars Suite 400
Los Angeles, CA 90067-4704
Phone: (310) 595-3000
Fax: (310) 595-3300
- and -
Shannon Elizabeth Ponek, Esq.
STROOCK AND STROOCK AND LAVAN LLP
2029 Century Park East Suite 1600
Los Angeles, CA 90067-3086
Phone: (310) 556-5800
Fax: (310) 556-5959
Email: sponek@stroock.com
- and -
Dale J. Giali, Esq.
KING & SPALDING LLP
633 W. Fifth Street, Suite 1600
Los Angeles, CA 90071
Phone: (213) 443-4329
Fax: (213) 443-4310
Email: dgiali@kslaw.com
- and -
Keri E Borders, Esq.
MAYER BROWN LLP
350 South Grand Avenue, 25th Floor
Los Angeles, CA 90071
Phone: (213) 229-9500
Fax: (213) 625-0248
Email: kborders@mayerbrown.com
- and -
Bryan A. Merryman, Esq.
WHITE & CASE LLP (CA)
633 West Fifth Street, Suite 1900
Los Angeles, CA 90071
Phone: (213) 620-7802
Email: bmerryman@whitecase.com
- and -
Christopher William Keegan, Esq.
Shayne Hunter Henry, Esq.
KIRKLAND & ELLIS LLP(SF)
555 California Street, Suite 2700
San Francisco, CA 94104
Phone: (415) 439-1882
Fax: (415) 439-1500
Email: chris.keegan@kirkland.com
- and -
Rita Mansuryan, Esq.
FAEGRE DRINKER BIDDLE AND REATH LLP
1800 Century Park East Suite 1500
Los Angeles, CA 90067
Phone: (310) 500-2134
Fax: (310) 229-1285
BHG XXXIV: Lawson Files Suit in E.D. Kentucky
---------------------------------------------
A class action lawsuit has been filed against BHG XXXIV, LLC, et
al. The case is styled as Gary Lawson, on behalf of himself and all
others similarly situated v. BHG XXXIV, LLC, BHG Holdings, LLC
doing business as: Behavioral Health Group, Case No.
6:22-cv-00150-CHB-HAI (E.D. Ky., Aug. 15, 2022).
The nature of suit is stated as Other Contract for Breach of
Fiduciary Duty.
BHG XXXIV, LLC doing business as Behavioral Health Group --
https://www.bhgrecovery.com/ -- is the largest network of Joint
Commission-accredited outpatient opioid treatment and recovery
centers in the U.S., delivering comprehensive, personalized
evidence-based medical and behavioral therapies.[BN]
The Plaintiff is represented by:
John A. Yanchunis, Esq.
JAMES HOYER NEWCOMER & SMILJANICH
3301 Thomasville Road, Suite A-200
Tampa, FL 32308
Phone: (813) 286-4100
Fax: (813) 286-4174
Email: jyanchunis@jameshoyer.com
- and -
Josh Autry, Esq.
MORGAN & MORGAN PLLC - LEX
233 W. Vine Street, Suite 1200
Lexington, KY 40507
Phone: (859) 899-8785
Fax: (859) 899-8806
Email: jautry@forthepeople.com
- and -
Ryan D. Maxey, Esq.
GREENBERG TRAURIG, P.A. - TAMPA
625 E. Twiggs Street, Suite 100
Tampa, FL 33602
Phone: (813) 318-5700
Fax: (813) 318-5900
BLUE DIAMOND GROWERS: Muller Suit Removed to E.D. Missouri
----------------------------------------------------------
The case styled as Beth Peacock Muller, individually and on behalf
of all others similarly situated v. Blue Diamond Growers, Does 1
through 10, Case No. 22SL-CC02735 was removed from the Circuit
Court for St. Louis, to the U.S. District Court for the Eastern
District of Missouri on July 1, 2022.
The District Court Clerk assigned Case No. 4:22-cv-00707-RWS to the
proceeding.
The nature of suit is stated as Other Contract.
Blue Diamond Growers -- https://www.bluediamond.com/ -- is an
agricultural cooperative and marketing organization that
specializes in California almonds.[BN]
The Plaintiff is represented by:
Daniel F. Harvath, Esq.
HARVATH LAW GROUP LLC
75 W. Lockwood, Suite 1
St. Louis, MO 63119
Phone: (314) 550-3717
Email: dharvath@harvathlawgroup.com
The Defendants are represented by:
Matthew T. Nickel
DLA PIPER US LLP - Dallas
1900 N. Pearl St., Suite 2200
Dallas, TX 75201
Phone: (214) 743-4553
Fax: (972) 813-6253
Email: matt.nickel@dlapiper.com
- and -
W. Jason Rankin
HEPLER BROOM LLC - St. Louis
701 Market Street, Suite 1400
St. Louis, MO 63101
Phone: (314) 241-6160
Fax: (314) 241-6116
Email: wjr@heplerbroom.com
BMW OF NORTH AMERICA: Moininazeri Files Suit in Cal. Super. Ct.
---------------------------------------------------------------
A class action lawsuit has been filed against BMW of North America,
LLC, et al. The case is styled as Jasmin Moininazeri, and on behalf
of herself and all other similarly situated v. BMW of North
America, LLC, Does 1 through 500, inclusive, Case No. CGC22600514
(Cal. Super. Ct., San Francisco Cty., July 1, 2022).
The case type is stated as "Contract / Warranty."
BMW of North America, LLC -- http://www.bmwusa.com/-- is an
importer and distributor of BMW luxury and performance vehicles,
and light trucks.[BN]
The Plaintiff is represented by:
Alexander A. Guillen, Esq.
GUILLEN & OTTO LAW, PC
2603 Camino Ramon, Ste. 200
San Ramon, CA 94583-9137
Phone: 510-363-9981
Fax: 888-458-8927
Email: aguillen@ottoguillenlaw.com
COINBASE GLOBAL: Samuel Law Firm Files Investors' Class Action
--------------------------------------------------------------
New York resident and Coinbase shareholder A. Manny Alicandro has
filed a class action in federal court in Manhattan alleging that
Coinbase, Global Inc. and several senior executives and insiders
misled prospective investors about their true intentions to sell
shares in Coinbase's Direct Listing public offering on April 14,
2021.
While the prospectus stated that there was no assurance that any
shareholders would sell any shares in the offering, nine of the
defendants took actions to rapidly and significantly increase the
amount of readily saleable Coinbase Class A common shares they held
in the days leading up to the offering and then sold more than
seven million shares of Coinbase stock on April 14, 2021, the first
day of public trading, receiving more than $2.7 billion in
proceeds. More than 1.3 million of those shares were sold
immediately at the market opening that day at a price of $381 per
share.
In a direct listing public offering, unlike an IPO, the issuing
company's insiders sell their shares directly to the public. Mr.
Alicandro, who purchased Coinbase stock on April 14, 2021, alleges
in the complaint that this distinction means that information
disclosed to prospective investors about the intentions of company
insiders to sell stock is important to prospective investors in
deciding whether to buy stock in the offering and that Coinbase and
the insiders who sold should have disclosed their true intentions
to sell millions of shares collectively.
Mr. Alicandro is represented by Michael Samuel and Andrew D.
Beresin of the Samuel Law Firm in New York. [GN]
FAT BRANDS: Offers $2.5M, Stock Issuance to Settle Securities Suit
------------------------------------------------------------------
restaurantdive.com reports that Fat Brands has reached an agreement
in principle to settle a consolidated securities class action
lawsuit filed by shareholders against the company and some current
and former officers and directors, according to a press release.
Following a voluntary mediation process, Fat agreed to provide a
cash payment of $2.5 million and an issuance of $500,000 in Class A
common stock to impacted shareholders to settle the suit.
The class action lawsuit was filed in April after a February Los
Angeles Times report revealed CEO Andy Weiderhorn and his son
Thayer Weiderhorn, COO of Fat Brands, were under federal
investigation for alleged violations including possible money
laundering, fraud and misrepresentations to investors.
Following this news, stock prices fell sharply after high trading
volume in the first two months of the year. Specifically, Common A
stock prices were at $10.56 per share on Feb. 18 and fell to $7.51
per share by Feb. 25. The lawsuit, which was filed on behalf of
people who purchased stocks between Dec. 4, 2017 and Feb. 18, 2022,
alleged that the declines in stock prices damaged investors.
The lawsuit also alleged the company made false or misleading
statements because it "misrepresented and failed to disclose"
various facts related to the reported investigation into the CEO
and COO.
Pending court approval of the settlement, Fat expects this
litigation to be dismissed with prejudice, meaning the plaintiffs
cannot refile the same claim again in court.
Fat said it continues to deny any liability and that "eliminating
the distraction, expense and risk of continued litigation is in the
best interests of the Company and its stockholders," according to
the press release. [GN]
FORD MOTOR: E.D. California Narrows Claims in Miller Class Suit
---------------------------------------------------------------
In the case, VANESSA MILLER, et al., as individuals and on behalf
of all others similarly situated, Plaintiffs v. FORD MOTOR COMPANY,
Defendant, Case No. 2:20-cv-01796-TLN-CKD (E.D. Cal.), Judge Troy
L. Nunley of the U.S. District Court for the Eastern District of
California grants in part and denies in part Ford's Motion to
Dismiss and denies as moot its Motion to Stay Discovery.
The Plaintiffs, 24 individuals spanning 15 states, purchased new
and used 2013-19 Ford Edge, Escape, and Fusion vehicles equipped
with 1.5L, 1.6L, or 2.0L Ecoboost engines. They allege the vehicles
have a defect that causes engine coolant to leak, which purportedly
can cause engine overheating and engine cylinder head cracking,
corrosion in the cylinders, or "total engine failure." They
allegedly experienced engine-related issues at various times after
purchase such as vehicles shaking violently while in use,
overheating, running rough, or catching on fire.
The Plaintiffs bring 51 claims based on an express and implied
breach of warranty and fraud. They further bring Magnuson-Moss
Warranty Act ("MMWA"), California's Legal Remedies Act,
California's Unfair Competition Law, implied warranty, fraud by
concealment, and unjust enrichment claims on behalf of a putative
nationwide class.
The action was initiated on Sept. 4, 2020. On May 5, 2021, the
Court issued an Order consolidating three related actions. The
operative Consolidated Complaint was filed on June 21, 2021. The
Defendant filed the instant motion to dismiss on Aug. 2, 2021. The
Plaintiffs opposed on Sept. 24, 2021. The Defendant replied on Oct.
14, 2021. Additionally, it filed a motion to stay discovery on
Sept. 21, 2021. The Plaintiffs opposed on Oct. 14, 2021, and the
Defendant replied on Oct. 21, 2021.
The Defendant moves to dismiss all 51 of the Plaintiffs' claims.
Judge Nunley first addresses the express warranty claims, followed
by the implied warranty claims, then turns to the fraud-based
claims, and concludes with the nationwide class claims.
The Defendant moves to dismiss the Plaintiffs' express warranty
claims on the bases that: (1) the Plaintiffs' claims occurred
outside the warranty's timeframe; (2) successful in-warranty
repairs were completed; (3) some Plaintiffs brought their vehicle
to independent mechanics; (4) the Plaintiffs pleaded insufficient
allegations to support a breach of express warranty claim; and (5)
certain states impose specific bars on the Plaintiffs' claims.
First, because similarly standard warranties have been upheld, and
because Hoffer, Butcher, the Morfords, the Manfras, Coppock,
Simonds, Schiavi, and Techlin do not allege they lacked other
viable options to purchase a similar product or for obtaining
additional warranty protections from the Defendant, JUdge Nunley
finds the Defendant's warranty is not procedurally or substantively
unconscionable. As Hoffer, Butcher, the Morfords, the Manfras,
Coppock, Simonds, Schiavi, and Techlin sought repair after the
express warranty period expired, their express warranty claims
fail. For that reason, amendment would be futile. Therefore, their
express warranty claims are dismissed without leave to amend.
Second, Bozhinov does not allege he was charged for this repair or
that he experienced any issues since. Accordingly, his express
warranty claim fails because the Defendant abided by the terms of
the warranty by providing a free successful in-warranty repair. To
the extent he complains the Defendant only made a temporary fix
instead of resolving the root of the problem, his claim similarly
fails. Absent any allegations that Bozhinov experienced any further
issues after Defendant complied with the terms of the express
warranty, Bozhinov's express warranty claim is dismissed with leave
to amend.
Third, Judge Nunley agrees with the Defendant that Constable does
not allege the vehicle was under warranty when it was repaired.
Accordingly, her express warranty claim is dismissed with leave to
amend.
Fourth, while it is possible that Balaszek's vehicle was under
warranty, as it had only been four years since she purchased the
vehicle, absent any allegations of the vehicle's mileage at the
time, Judge Nunley cannot conclude the vehicle was under warranty.
Therefore, Glade and Balaszek's express warranty claims are
dismissed with leave to amend.
Fifth, Judge Nunley agrees the Plaintiffs failed to allege
sufficient factual support demonstrating their engine problems
occurred within the warranty time and mileage limits or that
Defendant refused to provide a covered repair. urther, in the
instances of Christodaro (CO) and Padgett (FL), the warranty did
not require Ford to go beyond repairs allowing the vehicle to
function properly during the warranty. Therefore, Lund, Goodrich,
Pirog, Damm and Gates, Christodaro, and Padgett's express warranty
claims are dismissed with leave to amend.
Lastly, the Plaintiffs' allegations are sufficient to create a
question of fact as to whether their conduct, typically bringing
their vehicle to the dealer for repairs, is sufficient pre-suit
notice such that they have stated a plausible breach of warranty
claim. Therefore, dismissal of their claims at this stage would be
inappropriate.
The Defendant moves to dismiss the Plaintiffs' implied warranty
claims on the bases that: (1) the Plaintiffs' vehicles were
merchantable; (2) the Plaintiffs' issues occurred after the
warranty expired; (3) the Plaintiffs were not in contractual
privity with Defendant; and (4) Miller's Song-Beverly Consumer
Warranty Act implied warranty claim fails because she purchased her
car used from a third-party retailer.
First, Judge Nunley finds that the degree of safety risk posed by
the alleged engine issues cannot be decided on a Rule 12(b)(6)
motion. Second, he finds that the Defendant's own Limited Warranty
acknowledges not all states permit a durational limit on implied
warranties. Therefore, as amendment would be futile, given Hoffer,
Butcher, Coppock, Simonds, and Schiavi's implied warranty claims
occurred outside the enforceable durational limits of the Limited
Warranty, their claims are dismissed without leave to amend.
However, the Defendant's motion to dismiss the implied warranty
claims of the Morfords, the Manfras, and Techlin is denied in the
absence of controlling state law to the contrary.
Third, Judge Nunley (i) dismisses the Wests and Miller's implied
warranty claims without leave to amend; (ii) denies the dismissal
of Christodaro's (CO) implied warranty claim for lack of privity as
the Defendant cites no contrary authority; (iii) denies the
Defendant's motion to dismiss Padgett and Constable's implied
warranty claims for lack of privity because though Florida law
requires privity, they have adequately plead an exception to the
requirement; (iv) dismisses Bozhinov and Glade's implied warranty
claims without leave to amend as allegations of an agency
relationship are insufficient; (v) holds that it is ambiguous how
to apply this law, given the Defendant sells to retailers but also
provides the warranty in tandem with the retailer; (vi) finds that
the Plaintiffs' failure to respond to the Defendant's arguments is
a concession of the arguments so he grants the Defendant's motion
to dismiss Techlin's (WI) implied warranty claim with leave to
amend.
Lastly, though the Song-Beverly Act covers used vehicles, Judge
Nunley holds that the Defendant, as the manufacturer, is not liable
for implied warranties where the Plaintiffs purchased their vehicle
from a third-party retailer. Therefore, Miller's (CA) Song-Beverly
Act implied warranty claim is dismissed. As amendment would be
futile, given the Defendant cannot be liable on an implied warranty
claim as a matter of law, the claim is dismissed without leave to
amend.
The Defendant moves to dismiss the Plaintiffs' fraud-based claims
on the grounds that: (1) they have not alleged an affirmative
misrepresentation; (2) there was no failure to disclose; (3) they
have not alleged it knew of a material fact prior to sale it failed
to disclose; and (4) certain state fraud claims fail for
individualized reasons.
First, Judge Nunley holds that the Plaintiffs adequately allege the
"who, what, when, where, and how," given the inherent limitations
of an omission claim. The "who" is Defendant, the "what" is its
knowledge of a defect, the "when" is prior to the sale of the
Plaintiffs' vehicles, the "where" is the various channels of
information through which the Defendant sold its vehicles, and the
"how" is the Defendant's omission -- a failure to disclose a known
defect. Accordingly, the Plaintiffs have sufficiently alleged a
theory of omission-based fraud.
Second, Judge Nunley finds that the Plaintiffs sufficiently allege
the Defendant's knowledge of the defect at the time of sale of
Hoffer, Padgett, Butcher, Bozhinov, Glade, Goodrich, and Techlin's
vehicles. However, they have failed to allege knowledge of the
defect at the time of sale for the remaining thirteen vehicles.
Thus, the Defendant's motion to dismiss Miller, the Wests, Coppock,
the Morfords, Schiavi, Lund, Christodaro, Constable, Balaszek, the
Manfras, Simonds, Pirog, Damm and Gates's fraud-based claims is
granted with leave to amend.
Third, Judge Nunley (i) denies the Defendant's motion to dismiss
Goodrich's MCPA claim as it has not met its burden; (ii) dismisses
Glade's ICFA claim with leave to amend; (iii) denies the
Defendant's motion to dismiss Butcher's FBPA claim; and (iv)
dismisses Techlin's DTPA claim with leave to amend as the Wisconsin
Supreme Court has clearly articulated a DTPA claim cannot be based
on an omission and the Plaintiffs fail to provide any authority to
the contrary.
The Defendant moves to dismiss or strike all nationwide claims on
the basis that the Plaintiffs lack standing. In opposition, the
Plaintiffs argue it is premature to dismiss nationwide claims
before discovery or class certification.
Judge Nunley concludes the Plaintiffs do not have standing to
maintain a nationwide class action. He says, though they have not
expressed a willingness to identify additional named plaintiffs to
adequately represent class members in other states, based on the
liberal standard in favor of granting leave to amend, he dismisses
the nationwide claims with leave to amend. Accordingly, he need not
address the parties' remaining arguments on these claims, with the
exception of unjust enrichment.
The Plaintiffs appear to be attempting to describe an exception to
the valid express contract rule but cite no authority to support
the exception. Such an exception must be developed in the
legislature, not in a federal district court, Judge Nunley holds.
As amendment of these claims would be futile, as the Plaintiffs
pleaded the existence of express agreements, the Plaintiffs' unjust
enrichment claims are dismissed without leave to amend.
The Plaintiffs are granted 30 days from the electronic filing date
of the Order to file an amended complaint in conformity with the
Order. The Defendant will file a response to the amended complaint
within 21 days from the electronic filing date of the amended
complaint.
A full-text copy of the Court's Aug. 9, 2022 Order is available at
https://tinyurl.com/4cz6uecj from Leagle.com.
HARLEY-DAVIDSON INC: Suits Filed Over Antitrust Law Violations
--------------------------------------------------------------
Janaki Jitchotvisut at rideapart.com reports that in late June,
2022, the U.S. Federal Trade Commission officially ordered
Harley-Davidson to honor right-to-repair rules. At the time, the
FTC said it was taking action against both the Bar and Shield and
MWE Investments (the company that manufactures Westinghouse
generators), due to both companies' restrictions on a customer's
right to repair products they had purchased. The FTC deems such
practices illegal.
Consumer advocacy groups, enthusiasts, and just about anyone
concerned with the ongoing, broader right-to-repair battle that is
ongoing in multiple industries considered this a step in the right
direction. Now, in early August, 2022, two federal class-action
lawsuits have been filed against the Motor Company; one in
California, and one in Wisconsin.
Both lawsuits offer slightly different allegations that complement
each other. The California lawsuit alleges violations of
competition laws at the state level, among other complaints.
Meanwhile, the Wisconsin one focuses on allegations of federal
antitrust law violations. Both lawsuits specifically mention what
they refer to as "tying conduct," referring to Harley's tying of
its warranty (which owners could not read in full prior to their
purchase of their motorcycles) to specific and exclusive use of
Harley dealers and Harley parts.
Additionally, both lawsuits state that they wish to recoup
unspecified damages from Harley on behalf of both their plaintiffs
and all additional class members. "In June 2022, the Federal Trade
Commission ordered Harley to stop this practice going forward, but
did not and indeed lacks the authority to recoup the past
overpayments for parts from all affected Harley owners," reads the
Wisconsin lawsuit, in part.
"As a result of Harley-Davidson's anticompetitive conduct, its
faithful following of Harley owners has been harmed in two ways.
First, Harley-Davidson has been able to and has charged more for
its parts than it would have been able to, had it limited its
warranty terms to what the law allows, it continues."
"Second, Harley-Davidson's riders have been deprived of access to
the full range of aftermarket parts that the market could support.
While there is already a robust market for parts, Harley owners
whose bikes were under warranty were not free to choose from that
array of parts because the choice to use competitor parts came with
the threat of loss of warranty coverage."
Both law firms that filed these class-action lawsuits on behalf of
their clients did not comment when contacted by Reuters. Similarly,
Harley-Davidson also provided no comment when asked by Reuters.
Given the fact of this ongoing litigation, lack of comment is to be
expected from all parties concerned. [GN]
HCA HEALTHCARE: Brevard, NC Moves to Consolidate Antitrust Suits
----------------------------------------------------------------
Two separate lawsuits, one filed by the city of Brevard, N.C., and
a second filed jointly by Buncombe County and the city of
Asheville, N.C., could merge into a single large antitrust,
class-action lawsuit against Nashville, Tenn.-based HCA Healthcare
and Asheville-based Mission Health, according to an Aug. 5 report
from the Asheville Citizen Times.
While not identical, the Brevard and Buncombe-Asheville cases share
several similarities. Both allege noncompetitive and monopolistic
behavior by HCA Healthcare, which is a for-profit organization.
The Buncombe-Asheville case was filed July 27, and the Brevard case
was filed June 3. Brevard Mayor Maureen Copelof said that both
suits represent similar issues.
"I think that, in terms of identifying the problem and the redress
that we're looking at moving forward, our goals and our issues are
closely aligned," Ms. Copelof said.
The city of Brevard's motion to consolidate the cases states that
they "present nearly identical questions of law and fact. Each
alleges the same underlying conduct: that Defendants (HCA and
Mission) unlawfully restrained competition and monopolized the
inpatient and outpatient health care markets in Western North
Carolina, thereby inflating health care prices paid by Plaintiffs
and proposed class member health plans."[GN]
ILLINOIS: Refusal to Vacate 1972 Decree in Shakman Suit Reversed
----------------------------------------------------------------
In the case, MICHAEL L. SHAKMAN and PAUL M. LURIE, individually and
on behalf of others similarly situated, Plaintiffs-Appellees v.
J.B. PRITZKER, in his official capacity as Governor of the State of
Illinois, Defendant-Appellant, Case No. 21-1739 (7th Cir.), the
U.S. Court of Appeals for the Seventh Circuit issued an order:
a. reversing the district court's denial of the motion to
vacate the 1972 consent decree and its expansion of the
special master's duties; and
b. remanding with instructions to vacate the 1972 consent
decree as it applies to the Governor of Illinois.
By the 1960s political patronage too often influenced public
employment decisions in Illinois, with state officials awarding
jobs based on who showed loyalty to the dominant political party.
In 1969, aiming to curb the corruption, independent political
candidate Michael Shakman and voter Paul Lurie brought a putative
class action against several political organizations and various
arms of county and city government. They alleged that the
conditioning of employment opportunities on campaign contributions
and pledged votes prevented the election of independent candidates
and violated the First, Fifth, and Fourteenth Amendments.
In 1970, the Seventh Circuit reversed the district court's
dismissal of the case -- Shakman v. Democratic Org. of Cook County,
435 F.2d 267 (7th Cir. 1970) ("Shakman I"). The parties then
commenced the settlement negotiations that led to the 1972 Shakman
consent decree -- the mutually agreed-upon and court-approved
remedy for the past practices that infected state and local
employment decisions ("Shakman II").
As part of those negotiations, the Plaintiffs added several
Defendants, including the Governor of Illinois -- Richard Ogilvie
at that time -- to the eventual consent decree. It is that original
agreement from 1972, plus a couple of subsequent decrees (against
new units of local government) expanding the scope of the court's
supervision of government employment decisions, that the Seventh
Circuit now knows collectively as the Shakman decrees.
The express terms of the 1972 decree made its purpose clear: the
state could no longer "condition, base or knowingly prejudie or
affect any term or aspect of governmental employment, with respect
to one who is at the time already a governmental employee, upon or
because of any political reason or factor." On a prior occasion we
recognized that the decree and its attendant federal supervision
were necessary to safeguard the speech and associational rights of
candidates and voters.
In the years after the decree took effect, the Supreme Court issued
two cases affirming the unlawfulness of political patronage in
government employment decisions -- Elrod v. Burns, 427 U.S. 347,
356-59 (1976) (holding that local government could not
constitutionally base public employment opportunities on political
affiliation or nonaffiliation); and Rutan v. Republican Party of
Ill., 497 U.S. 62, 79 (1990) (qualifying Elrod and holding that a
state generally may not consider political affiliation in hiring
except as to certain exempted political positions). In time the
Shakman decrees found themselves cemented on the district court
docket. And for decades little seemed to happen other than the
district court receiving annual or quarterly reports on the status
of ongoing compliance efforts.
Fast forward from 1972 to 2014. After decades of quiet, the Shakman
decrees experienced something of a revival. It was then that the
Illinois Office of Executive Inspector General, which the Illinois
General Assembly authorized in 2009 to investigate and redress
political patronage in state employment, reported multiple decree
violations between 2003 and 2013, most especially at the Illinois
Department of Transportation. The Department, the Inspector
General's report explained, had improperly hired, promoted, and
transferred hundreds of individuals based on political
considerations under the Rod Blagojevich administration and for at
least part of Pat Quinn's tenure as Governor of Illinois.
By this time, and with the parties' consent, a magistrate judge had
assumed responsibility for overseeing the Shakman cases. The
magistrate responded to the Inspector General's findings by
granting a motion to appoint a special master to investigate the
extent of the Department of Transportation's noncompliance with the
Shakman decree and to recommend and evaluate the implementation of
remedial measures. The magistrate judge expanded the special
master's duties to include review of all positions under the
Governor's authority.
Each of these measures has proven effective, though the parties
dispute to what degree. As recently as 2019 the special master
reported that Governor J.B. Pritzker has made "significant
progress" in complying with the 1972 Shakman decree, including by
continuing efforts to implement the state's Comprehensive
Employment Plan. To be sure, however, the special master has
emphasized that more remains to be done. "Opportunities for
manipulation" cannot be ruled out, she has explained, especially
given the history of political patronage in Illinois.
In November 2019 the Clerk of Cook County -- itself, too, still a
separate party the Shakman decrees -- filed a motion to vacate the
decree. The magistrate judge denied that motion and the Clerk
appealed, affording the Seventh Circuit its sixth opportunity to
speak on the case.
Although it affirmed the denial of the motion to vacate, the
Seventh Circuit sounded serious concerns about the duration and
seemingly never-ending nature of the Shakman decrees: "Do not let
today's result cloud the grave federalism concerns we have with the
fact that the Clerk of Cook County has been under the thumb of a
federal consent decree for the last 50 years," it underscored.
"Such entrenched federal oversight should have raised red flags
long ago."
It was against that backdrop -- and reassignment of the case from
the magistrate judge to the district court -- that Governor
Pritzker moved under Federal Rule of Civil Procedure 60(b)(5) to
vacate the decree. The Governor pressed two positions. First, he
claimed that, as evidenced by the special master's praise of the
state's ongoing efforts to institute durable remedies and her
inability to find constitutional violations in recent years, the
state had satisfied the requirements of the decree. Second, the
Governor argued that, separate and apart from the state's showing
of recent compliance, continuing the decree would be inequitable
because the named plaintiffs lack standing and, regardless, ongoing
enforcement after this long offends principles of federalism.
In a thorough opinion, the district court denied Governor
Pritzker's motion to vacate the 1972 decree. Like the special
master, it found that while "direct evidence of political
motivation is absent" in recent state employment decisions, there
were "areas of ongoing concern from which inferences of First
Amendment violations can be drawn." Most notably, the district
court echoed the special master's concern with the Governor's
failure to fully implement certain administrative policies and
processes prescribed by the Comprehensive Employment Plan, like
adoption of a new electronic hiring system. Deficiencies like
these, the district court determined, did not violate the decree
but did reveal an ongoing and yet unmitigated risk of potential
future violations. Put another way, it was the full implementation
of certain risk management policies—like those within the
Governor's Employment Plan—that would serve as "the cornerstone
of a sunset plan" to the decree.
So too did the district court conclude that the Governor had not
shown the Inspector General and Hiring & Employment Monitoring
Division to be sufficient solutions to prevent the patronage
practices of the past. Although those offices closely supervised
the state's compliance with the law, in the district court's view,
neither had achieved the durability necessary to release the
Governor from federal supervision. Until then, both the special
master and the federal court would continue close watch over the
Governor of Illinois and every agency under his authority.
In denying the Governor's motion to vacate, the district court also
granted in part Shakman and Lurie's request to expand the scope of
the special master's duties. In addition to supervising the
Governor's compliance with the Shakman decree, the special master
was also now expressly tasked with monitoring the state's
implementation of the Governor's Comprehensive Employment Plan and
related policies.
Governor Pritzker then appealed.
The Seventh Circuit finds that leaving the Governor subject to the
1972 decree is no longer warranted or tolerable. Governor Pritzker
has demonstrated substantial compliance with the decree and
identified and instituted durable remedies to help ensure that
compliance sticks. He has earned the right to make employment
decisions for the state on his own and not under the terms and
conditions of the 1972 decree or the watchful eyes of a special
master and federal court. The Seventh Circuit cannot let perfect be
the enemy of the constitutionally adequate.
The Seventh Circuit further finds that Shakman decree's continued
application has put a federal court in a role tantamount to serving
as an indefinite institutional monitor -- not much different than
an executive or legislative branch oversight agency --focused much
more on ensuring that the Governor implements best practices rather
than eliminates "an ongoing violation of federal law." This is
antithetical to the limited role the Constitution created for the
Third Branch: Article III does not "confer on federal judges some
amorphous power to supervise the operations of government and
reimagine from the ground up" the employment practices of
Illinois.
The district court is not closing. To the contrary, it will remain
open and receptive to individual claims brought by persons able to
allege concrete and particularized injuries as a result of unlawful
patronage practices by the Governor or departments under his
supervision. And nothing will prevent such plaintiffs from
requesting not just money damages, but also appropriate injunctive
relief. So, while today's decision relieves the Governor of
complying with the Shakman decree, the First Amendment remains
alive and well. Future violations of the rules announced in Elrod
and Rutan may see new plaintiffs bringing new cases requesting new
and stiff remedies, all the while emphasizing the tragic history
that led to the Shakman decrees.
The Seveth Circuit concludes that in 1972, a federal district court
entered the first of many consent decrees preventing the Governor
of Illinois and units of local government from conditioning
employment decisions on political patronage. And so were born the
Shakman decrees.
The Governor remains subject to the original 1972 decree to this
day -- 50 years later -- despite having demonstrated substantial
compliance with its terms and objectives in recent years.
Principles of federalism do not permit a federal court to oversee
the Governor's employment practices for decades on end in
circumstances like this.
The power to hire, fire, and establish accompanying policies needs
to return to the people of Illinois and the Governor they elected.
The federal courts will remain open to decide individual cases of
alleged constitutional violations should they arise. But no longer
will the Governor's employment practices and policies have to win
the approval of a United States court.
For these reasons, the Seventh Circuit reverses the district
court's denial of the motion to vacate and its expansion of the
special master's duties and remands with instructions to vacate the
1972 consent decree as it applies to the Governor of Illinois.
A full-text copy of the Court's Aug. 5, 2022 Order is available at
https://tinyurl.com/497uh2ft from Leagle.com.
JELD-WEN INC: Court Grants in Part Bid to Dismiss Rivera Class Suit
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In the case, PATRICK RIVERA JR., CHRISTOPHER GONZALEZ, ARIS
GUERRERO, ASHDEN RUSSELL, JESSE RAMOS, individually, and on behalf
of other members of the general public similarly situated,
Plaintiffs v. JELD-WEN, INC., a Delaware corporation; and DOES 1
through 100, inclusive, Defendants, Case No. 21-cv-01816-AJB-AHG
(S.D. Cal.), Judge Anthony J. Battaglia of the U.S. District Court
for the Southern District of California grants in part and denies
in part Defendant Jeld-Wen's partial motion to dismiss the
Plaintiffs' Second Amended Complaint and denies as moot its partial
motion to strike the Plaintiffs' ninth cause of action.
On Feb. 18, 2022, the Plaintiffs, all former employees of Jeld-Wen,
filed a SAC against it for: (1) failure to pay overtime; (2) unpaid
meal period premiums; (3) unpaid rest period premiums; (4) unpaid
minimum wage violations; (5) waiting time penalties; (6) itemized
wage statement penalties; (7) failure to reimburse expenses; (8)
violation of California Business and Professions Code Sections
17200 et seq.; and (9) violations of the Fair Credit Reporting Act,
15 U.S.C. Section 1681b. The SAC realleges all claims previously
dismissed by the Court.
The Defendant now seeks to dismiss Plaintiffs' seventh, eighth, and
ninth causes of action for failure to state a claim pursuant to
Federal Rule of Civil Procedure 12(b)(6) and/or, in the
alternative, to partially strike the Plaintiffs' ninth cause of
action pursuant to Federal Rule of Civil Procedure 12(f).
The Court previously dismissed the Plaintiffs' second and third
causes of action with leave to amend and instructed them to include
specific instances of the alleged missed meal and rest periods. The
SAC now alleges facts supporting specific instances of missed meal
and rest periods as to each named Plaintiff except Plaintiff
Russell.
Judge Battaglia finds that the Plaintiffs have sufficiently pled
claims for missed and/or unpaid meal and rest periods. Plaintiff
Russell has alleged he, like the other named Plaintiffs, suffered
"short and/or interrupted meal periods while waiting in line to
clock in and out and answering work related questions from
supervisors and coworkers" while employed by the Defendant. He
further alleges he "was not provided a single off-duty rest period
due to the heavy workload, and was not allowed to leave the
premises during rest periods." This is sufficient to support a
reasonable inference for the Court to find Defendant violated
California Labor Code Sections 226.7 and 512(a).
The Plaintiffs' Labor Code Sections 201 and 202 claims survived the
Defendant's first motion to dismiss, though the Court dismissed
their Section 203 claim. The SAC does not allege new or additional
facts as to this claim that would warrant a different disposition.
The Plaintiffs again fail to plead facts that the Defendant acted
willfully in failing to pay them their wages after their respective
separations from its employ. Accordingly, Judge Battaglia dismisses
the Plaintiffs' Section 203 claim (claim five) without leave to
amend.
The Plaintiffs also now claim injury arising from wage statements
that did not include "the correct name of the legal entity that is
Defendant." However, Judge Battaglia finds that the SAC does not
include the name or address that appeared on the Plaintiffs' wage
statements. Nor does the SAC include any other details which would
assist the Court in determining why the name included on the wage
statements was purportedly incorrect. Thus, he dismisses the
Plaintiffs' sixth cause of action with leave to amend.
The Court previously determined the Plaintiffs had failed to
sufficiently specify how "specialty footwear" was both a
requirement of their employment and how they were denied
reimbursement for the same. They had also failed to specify why the
footwear was a "necessary expense" under Labor Code Section 2802.
They now assert the Defendant maintained a uniform and/or dress
code requiring "specialty footwear" -- steel-toed boots -- and that
the boots were bought within the scope of Section 2802 by its
written "safety policies.
Judge Battaglia dismisses the Plaintiffs' seventh cause of action
with leave to amend, finding that the Plaintiffs make no mention of
where or how the Defendant required the maintenance of the boots.
Moreover, they have not alleged any facts detailing the actual
expenses they incurred to maintain the boots, nor any attempt by
Defendant to reimburse those costs.
In its previous order, the Court dismissed the Plaintiffs' eighth
cause of action and emphasized that a claim for equitable relief
under the UCL must plead inadequate legal remedies at law. As
amended, the Plaintiffs now assert the remedies available to them
under the California Labor Code are inadequate because of its
three-year statute of limitations period as compared with four
years under the UCL.
Judge Battaglia rules that when equitable relief is sought under
the UCL in tandem with damages under a "borrowed" statute, the
shorter statutory limitations period of the "borrowed" statute
renders legal remedies available under that statute inadequate.
Thus, he finds the Plaintiffs have adequately pled an inadequate
remedy at law and therefore denies the Defendant's motion to
dismiss the Plaintiff's eighth cause of action.
The Court previously dismissed the Plaintiffs' ninth cause of
action because the FAC failed to allege a concrete injury, a
threshold requirement to establish Article III standing. Finding
this threshold unsatisfied, the Court did not analyze the remaining
two elements.
Judge Battaglia now addresses these three elements in turn. He
finds that (i) the Plaintiffs' confusion, as currently pled,
satisfies the injury-in-fact element of Article III standing; (ii)
the Plaintiffs have not plausibly alleged an injury that is fairly
traceable to the Defendant's unlawful conduct; and (iii) the
Plaintiffs have not averred facts supporting their allegations that
the Defendant violated the FCRA, and that those violations caused
their injury. The Plaintiffs have not satisfied the causation
element of Article III standing as to their FCRA claim. Therefore,
the Defendant's motion to dismiss the Plaintiffs' ninth cause of
action is granted with leave to amend.
The Defendant seeks to strike the Plaintiffs' invocation of a
five-year statute of limitations for the ninth cause of action.
Judge Battaglia agrees with the Plaintiff to the extent it is
premature to strike the FCRA class allegation. However, he finds
the Plaintiffs' FCRA claims are time-barred under both limitations
periods. He says, the Plaintiffs appear to concede their actual or
constructive knowledge that the consumer reports at issue were
pulled by the time their employment commenced. Therefore, the
Plaintiffs may not avail themselves of the five-year statute of
limitations period under the FCRA. They also fail to offer a viable
theory that would toll the two-year statute of limitations under
the FCRA. However, Judge Battaglia has dismissed the Plaintiffs'
ninth cause of action and therefore denies as moot the Defendant's
motion to strike the start date of the putative FCRA class period
as Aug. 9, 2016.
Finally, the Court previously dismissed injunctive and declaratory
relief for the Plaintiffs' sixth, eighth, and ninth causes of
action for lack of Article III standing. The Plaintiffs again
request injunctive relief for the sixth and eighth causes of
action, and declaratory relief for the ninth cause of action.
However, the fact remains that all named Plaintiffs are former
employees and continue to lack standing for such relief.
Accordingly, Judge Battaglia dismisses the Plaintiffs' claims for
injunctive relief under their sixth and eighth causes of action.
A full-text copy of the Court's Aug. 9, 2022 Order is available at
https://tinyurl.com/mm8d6bux from Leagle.com.
LIFESTANCE HEALTH: Bernstein Liebhard Discloses Securities Suit
---------------------------------------------------------------
Bernstein Liebhard LLP announces that a securities class action
lawsuit has been filed on behalf of investors who purchased or
otherwise acquired the common stock of LifeStance Health Group,
Inc. pursuant and/or traceable to the Registration Statement and
Prospectus (collectively, the "Registration Statement") issued in
connection with LifeStance's June 10, 2021 initial public stock
offering (the "IPO"). The lawsuit was filed in the United States
District Court for the Southern District of New York and alleges
violations of the Securities Exchange Act of 1933.
LifeStance is one of the nation's largest providers of virtual and
in-person outpatient mental health care. At the time of its IPO,
the Company operated 370 centers and employed 3,300 psychiatrists,
advanced practice nurses, psychologists, and therapists across 27
states. The Company provides virtual and in-person outpatient
mental health care for children, adolescents, and adults
experiencing a variety of mental health conditions including
depression, anxiety disorder, schizophrenia, and post-traumatic
stress disorder.
The Company benefitted from the state and local lockdown orders
necessitated by the COVID-19 pandemic starting in the spring of
2020. However, by December 2020, several COVID-19 vaccines were
being approved and administered, meaning LifeStance's access to
clients seeking virtual mental health services would significantly
decline while demand for in-person services would increase.
Meanwhile, LifeStance internal company records demonstrated that
providing virtual services cost LifeStance far less as its service
providers could work from home, avoiding the costs of high rents
for offices, office personnel staff, and related expenses. Also,
because LifeStance had been utilizing physicians from around the
country to meet strong patient demand during the COVID-19
lockdowns, increasing inpatient service demand was increasing the
workload on certain of its physicians, many of whom were getting
burned out and resigning, requiring that new physicians be hired
and trained.
Plaintiff alleges that Defendants' statements in the Registration
Statement were materially false and misleading when made because
they failed to disclose the following material facts which existed
at the time of the IPO: (1) the number of virtual visits clients
were undertaking utilizing LifeStance was decreasing as the
COVID-19 lockdowns were being lifted, thereby flatlining the
Company's out-patient/virtual revenue growth; (2) the percentage of
in-person visits clients were undertaking utilizing LifeStance was
increasing as the COVID-19 lockdowns were being lifted, thereby
causing the Company's operating expenses to increase substantially;
and (3) LifeStance had lost a large number of physicians due to
burn-out and, as a result, the Company had been expending
additional costs to onboard new physicians who were less productive
than the outgoing physicians they were replacing.
On August 11, 2021, less than two months after the IPO, LifeStance
announced its second quarter 2021 ("2Q21") financial results for
the period ended June 30, 2021, disclosing a net loss of $70
million. During the 2Q21, the Company's operating expenses had more
than tripled and the Company had experienced a significant,
negative "recent change in clinician retention levels" during the
2Q21.
On November 8, 2021, the Company reported its third quarter 2021
results, now explaining in its press release that "[c]linician
retention [had] stabilized to approximately 80% annualized in the
third quarter." Defendants also stated LifeStance was also having
to increase spending on "enhanced clinician engagement and
continued support for workplace and work-life flexibility," i.e.
lowering physician productivity, in order to keep its existing
physicians.
On March 10, 2022, Defendants reported LifeStance's fiscal 2021
results. During a conference call that day, LifeStance's CEO,
defendant Michael Lester, admitted that a recent large clinical
study by Stanford had confirmed that three quarters of mental
health patients prefer in-person services, stating that "[w]hen
COVID first emerged in 2020, our patient visits moved from 5%
virtual to over 90% virtual within weeks," but that "[t]hrough
2021, our telehealth mix trended downward to the low 80s, and we
expect that mix to be approximately 50-50 virtual versus in-person
over the long term." .
Since the IPO, the price of LifeStance's common stock has fallen
over 56%, closing at $7.86 per share on August 10, 2022.
If you wish to serve as lead plaintiff, you must move the Court no
later than October 11, 2022. A lead plaintiff is a representative
party acting on behalf of other class members in directing the
litigation. Your ability to share in any recovery doesn't require
that you serve as lead plaintiff. If you choose to take no action,
you may remain an absent class member.
If you purchased or otherwise acquired LFST common stock, and/or
would like to discuss your legal rights and options please visit
LifeStance Health Group, Inc. Shareholder Class Action Lawsuit or
contact Peter Allocco at (212) 951-2030 or pallocco@bernlieb.com.
Since 1993, Bernstein Liebhard LLP has recovered over $3.5 billion
for its clients. In addition to representing individual investors,
the Firm has been retained by some of the largest public and
private pension funds in the country to monitor their assets and
pursue litigation on their behalf. As a result of its success
litigating hundreds of lawsuits and class actions, the Firm has
been named to The National Law Journal's "Plaintiffs' Hot List"
thirteen times and listed in The Legal 500 for ten consecutive
years.
ATTORNEY ADVERTISING. (C) 2022 Bernstein Liebhard LLP. The law firm
responsible for this advertisement is Bernstein Liebhard LLP, 10
East 40th Street, New York, New York 10016, (212) 779-1414. Prior
results do not guarantee or predict a similar outcome with respect
to any future matter. [GN]
LIFESTANCE HEALTH: Bids for Lead Plaintiff Appointment Due Oct. 17
------------------------------------------------------------------
Shareholder rights law firm Johnson Fistel, LLP announces that a
class action lawsuit has commenced on behalf of investors of
LifeStance Health Group, Inc. (NASDAQ: LFST). The class action is
on behalf of shareholders who purchased or otherwise acquired
LifeStance Health in or traceable to LifeStance Health June 2021
initial public offering (the "IPO"). The LifeStance Health class
action lawsuit charges LifeStance Health, certain of its top
executives and directors, as well as the IPO's underwriters with
violations of the Securities Act of 1933 Investors are hereby
notified that they have until October 11, 2022 to move the Court to
serve as lead plaintiff in this action.
What actions may I take at this time? If you suffered a loss and
are interested in learning more about being a lead plaintiff,
please contact Jim Baker (jimb@johnsonfistel.com) by email or phone
at 619-814-4471. If emailing, please include a phone number.
To join this action, you can click or copy and paste the link below
in a browser:
https://www.johnsonfistel.com/investigations/lifestance-ipo-lfst-stock-class-action
The LifeStance Health class action lawsuit alleges, the IPO's
registration statement failed to disclose the following material
facts: (i) that the number of virtual visits clients were
undertaking utilizing LifeStance Health was decreasing as the
COVID-19 lockdowns were being lifted, thereby flatlining LifeStance
Health's out-patient/virtual revenue growth; (ii) that the
percentage of in-person visits clients were undertaking utilizing
LifeStance Health was increasing as the COVID-19 lockdowns were
being lifted, thereby causing LifeStance Health's operating
expenses to increase substantially; (iii) that LifeStance Health
had lost a large number of physicians due to burn-out and, as a
result, its physician retention rate had fallen significantly below
the 87% highlighted in the IPO's registration statement and
LifeStance Health had been expending additional costs to onboard
new physicians who were less productive than the outgoing
physicians they were replacing; and (iv) as a result, LifeStance
Health's business metrics and financial prospects were not as
strong as the IPO's registration statement represented.
A lead plaintiff will act on behalf of all other class members in
directing the LifeStance Health class-action lawsuit. The lead
plaintiff can select a law firm of its choice to litigate the
class-action lawsuit. An investor's ability to share any potential
future recovery of the LifeStance Health class action lawsuit is
not dependent upon serving as lead plaintiff. For more information
regarding the lead plaintiff process please refer to
https://www.johnsonfistel.com/lead-plaintiff-deadlines.
About Johnson Fistel
Johnson Fistel, LLP is a nationally recognized shareholder rights
law firm with offices in California, New York and Georgia. The firm
represents individual and institutional investors in shareholder
derivative and securities class action lawsuits. Johnson Fistel
seeks to recover losses incurred due to violations of federal
securities laws. For more information about the firm and its
attorneys, please visit http://www.johnsonfistel.com.Attorney
advertising. Past results do not guarantee future outcomes. [GN]
MCG HEALTH: Saiki Bid to Consolidate Denied w/o Prejudice
---------------------------------------------------------
In the class action lawsuit captioned as DIANA SAIKI, v. MCG HEALTH
LLC, Case No. 2:22-cv-00849-RSM-DWC (W.D. Wash.), the Hon. Judge
David W. Christel entered an order denying without prejudice
Saiki's motion to consolidate cases.
The Court said, "On June 22, 2022 Plaintiff's counsel in Saiki v.
MCG Health, LLC, Case No. 2:22-cv-00849-DWC (W.D. Wash., filed June
16, 2022) filed a motion to consolidate three cases. However, since
that time several additional cases have been filed. Therefore,
Saiki's Motion to Consolidate is denied without prejudice."
Federal Rule of Civil Procedure 42 provides the Court discretion to
consolidate actions that involve a common question of law or fact.
The Court's review reveals that the Plaintiffs in the cases have
filed virtually identical Complaints against the MCG Health, each
alleging similar causes of action predicated on parallel facts.
Under the circumstances, consolidation appears to be in the
interest of judicial efficiency and appropriate to promote the fair
and just resolution of these disputes.
Accordingly, all parties are hereby ordered to meet-and-confer in
accordance with Local Civil Rule 42(b) and either file a
stipulation to consolidate or file a response of no more than five
pages (excluding supporting declarations) showing cause why the
cases should not be consolidated (without prejudice to later
bifurcation, as appropriate) on or before August 22, 2022. Either
way, all parties must employ and file their stipulation or response
in each of the cases.
At this time the Court will not hear argument regarding appointment
of interim lead counsel or any other matters preliminary to a
motion for class certification. The Clerk is directed to file this
order in all above captioned cases and to send uncertified copies
of this Order to all counsel of record, the Court says.
MCG Health is part of the Hearst Health network, is an industry
leader in evidence-based care guidelines, analytics, and software.
A copy of the Court's order dated Aug. 3, 2022 is available from
PacerMonitor.com at https://bit.ly/3c0FyOq at no extra charge.[CC]
MCG HEALTH: Saiki Bid to Consolidate Denied w/o Prejudice
---------------------------------------------------------
In the class action lawsuit captioned as Cynthia Strecker v. MCG
Health LLC, Case No. 2:22-cv-00862-RSM-DWC (W.D. Wash), the Hon.
Judge David W. Christel entered an order denying without prejudice
Diana Saiki's motion to consolidate cases.
The Court said, "On June 22, 2022 Plaintiff's counsel in Saiki v.
MCG Health, LLC, Case No. 2:22-cv-00849-DWC (W.D. Wash., filed June
16, 2022) filed a motion to consolidate three cases. However, since
that time several additional cases have been filed. Therefore,
Saiki's Motion to Consolidate is denied without prejudice."
Federal Rule of Civil Procedure 42 provides the Court discretion to
consolidate actions that involve a common question of law or fact.
The Court's review reveals that the Plaintiffs in the cases have
filed virtually identical Complaints against the MCG Health, each
alleging similar causes of action predicated on parallel facts.
Under the circumstances, consolidation appears to be in the
interest of judicial efficiency and appropriate to promote the fair
and just resolution of these disputes.
Accordingly, all parties are hereby ordered to meet-and-confer in
accordance with Local Civil Rule 42(b) and either file a
stipulation to consolidate or file a response of no more than five
pages (excluding supporting declarations) showing cause why the
cases should not be consolidated (without prejudice to later
bifurcation, as appropriate) on or before August 22, 2022. Either
way, all parties must employ and file their stipulation or response
in each of the cases.
At this time the Court will not hear argument regarding appointment
of interim lead counsel or any other matters preliminary to a
motion for class certification. The Clerk is directed to file this
order in all above captioned cases and to send uncertified copies
of this Order to all counsel of record, the Court says.
MCG Health is part of the Hearst Health network, is an industry
leader in evidence-based care guidelines, analytics, and software.
A copy of the Court's order dated Aug. 3, 2022 is available from
PacerMonitor.com at https://bit.ly/3AkXTz6 at no extra charge.[CC]
MCG HEALTH: Saiki Bid to Consolidate Nixed w/ Prejudice
-------------------------------------------------------
In the class action lawsuit captioned as EVA DRESCH v. MCG HEALTH
LLC, Case No. 2:22-cv-00892-RSM-DWC (W.D. Wash.), the Hon. Judge
David W. Christel entered an order denying without prejudice Diani
Saiki's motion to consolidate cases.
The Court said, "On June 22, 2022 Plaintiff's counsel in Saiki v.
MCG Health, LLC, Case No. 2:22-cv-00849-DWC (W.D. Wash., filed June
16, 2022) filed a motion to consolidate three cases. However, since
that time several additional cases have been filed. Therefore,
Saiki's Motion to Consolidate is denied without prejudice."
Federal Rule of Civil Procedure 42 provides the Court discretion to
consolidate actions that involve a common question of law or fact.
The Court's review reveals that the Plaintiffs in the cases have
filed virtually identical Complaints against the MCG Health, each
alleging similar causes of action predicated on parallel facts.
Under the circumstances, consolidation appears to be in the
interest of judicial efficiency and appropriate to promote the fair
and just resolution of these disputes.
Accordingly, all parties are hereby ordered to meet-and-confer in
accordance with Local Civil Rule 42(b) and either file a
stipulation to consolidate or file a response of no more than five
pages (excluding supporting declarations) showing cause why the
cases should not be consolidated (without prejudice to later
bifurcation, as appropriate) on or before August 22, 2022. Either
way, all parties must employ and file their stipulation or response
in each of the cases.
At this time the Court will not hear argument regarding appointment
of interim lead counsel or any other matters preliminary to a
motion for class certification. The Clerk is directed to file this
order in all above captioned cases and to send uncertified copies
of this Order to all counsel of record, the Court says.
MCG Health is part of the Hearst Health network, is an industry
leader in evidence-based care guidelines, analytics, and software.
A copy of the Court's order dated Aug. 3, 2022 is available from
PacerMonitor.com at https://bit.ly/3QJMv5c at no extra charge.[CC]
NEILMED PHARMACEUTICALS: Bid to Certify Class in Cooper Suit Denied
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In the case, RUTH ANN COOPER, D.P.M., on behalf of herself and all
others similarly situated, Plaintiff v. NEILMED PHARMACEUTICALS,
INC., Defendant, Case No. 1:16-cv-945 (S.D. Ohio), Judge Douglas R.
Cole of the U.S. District Court for the Southern District of Ohio,
Western Division, denies Dr. Cooper's Motion for Class
Certification.
Dr. Cooper contends that Defendant NeilMed violated the Junk Fax
Prevention Act of 2005 when it sent a fax offering product samples
to over 50,000 recipients, including her. Seeking to vindicate her
own rights, as well as the rights of all others who received the
same fax, Dr. Cooper now moves the Court to certify the matter as a
class action under Federal Rule of Civil Procedure 23.
NeilMed is a purveyor of sinus rinses and other first-aid products.
NeilMed sent a fax (the "P3990 Fax") to some 54,000 unique fax
numbers -- numbers belonging mostly to physicians and physicians'
offices -- between August 24 and 25, 2016. The P3990 Fax told
recipients that NeilMed wanted to send them "product samples," and
asked recipients to "verify their address and confirmation for
samples" by filling in their contact information and faxing the
form back to NeilMed. It also invited recipients to opt out of
future faxes by checking a "remove my name" box and returning the
fax.
Less than a month after receiving the P3990 Fax, Dr. Cooper
initiated this putative class action, alleging that NeilMed's
transmission of the fax violated the Telephone Consumer Protection
Act of 1991, as amended by the Junk Fax Prevention Act of 2005, 47
U.S.C. Section 227. In broad terms that statute makes it unlawful
"to send, to a telephone facsimile machine, an unsolicited
advertisement." Dr. Cooper contends that the P3990 Fax is just such
an "unsolicited advertisement"; "unsolicited" because NeilMed did
not obtain her "prior express invitation or permission" before
sending it, and an "advertisement" because NeilMed directly sells
and profits from the products mentioned in the P3990 Fax.
Shortly after the action was filed, NeilMed moved to dismiss the
Complaint for failure to state a claim. The then-assigned Judge
denied NeilMed's Motion in September 2017. That Judge then stayed
the action for about 8 months in 2019, awaiting the outcome of a
potentially relevant Supreme Court decision.
After the court lifted that stay, Dr. Cooper filed the motion for
class certification, seeking to certify a class of "all
persons/entities who successfully received the P3990 Fax on Aug.
24, 2016 or Aug. 25, 2016 and have not signed a NeilMed
Declaration."
NeilMed responded in opposition on April 21, 2020, and Dr. Cooper
replied in support on May 8, 2020. The matter was transferred to
Judge Cole on Nov. 20, 2020.
Under Federal Rule of Civil Procedure 23(a), the named plaintiff(s)
must show that: (1) the class is so numerous that joinder of all
members is impracticable; (2) there are questions of law or fact
common to the class; (3) the claims or defenses of the
representative parties are typical of the claims or defenses of the
class; and (4) the representative parties will fairly and
adequately protect the interests of the class. These requirements
-- commonly known as numerosity, commonality, typicality, and
adequacy -- limit abuse of the class action mechanism by ensuring,
among other things, that the class claims are "fairly encompassed
by the named plaintiff's claims."
Beyond satisfying Rule 23(a), the putative class must also comply
with one of the provisions of Rule 23(b). Dr. Cooper seeks
certification under Rule 23(b)(3). First, under Rule 23(b)(3), the
court must "find that the questions of law or fact common to class
members predominate over any questions affecting only individual
members." Second, the court must find that "a class action is
superior to other available methods for fairly and efficiently
adjudicating the controversy."
Dr. Cooper must clear six hurdles to succeed in her motion for
class certification: Rule 23(a)'s requirements of numerosity,
commonality, adequacy, and typicality, as well as Rule 23(b)(3)'s
requirements of predominance and superiority. Of these, NeilMed
meaningfully contests only three: adequacy and typicality under
Rule 23(a), and predominance under Rule 23(b)(3).
Because Judge Cole concludes that the predominance inquiry is
dispositive, he begins and ends his analysis there. He finds that
NeilMed has adduced sufficient evidence supporting its affirmative
defense of prior express invitation or permission, and Dr. Cooper
has failed to offer generalized proof to the contrary.
NeilMed has provided sufficient evidence for the Court to conclude
that it is at least likely that the consent issue will be
individualized. As noted, NeilMed offered essentially unrebutted
testimony that it grew its list organically based on individualized
interactions with potential clients. As a factual matter, that
creates almost a sort of presumption that the consent issue will be
individualized. Against that backdrop, it would be incumbent upon
Dr. Cooper to show why that is not the case. On that front, she
offers nothing. She offers no evidence, for example, that NeilMed
in fact purchased the fax numbers, nor does she have any meaningful
basis to dispute NeilMed's account that it gathered numbers at some
571 trade shows, or through other individualized contacts.
In sum, Judge Cole concludes based on the record that
individualized factual determinations about if, when, and how
certain putative class members (i.e., fax recipients) consented
would likely become the "driver" of the litigation. Thus, Dr.
Cooper has failed to establish the predominance of common questions
as Federal Rule of Civil Procedure 23(b)(3) requires.
A full-text copy of the Court's Aug. 9, 2022 Opinion & Order is
available at https://tinyurl.com/2p8sm54y from Leagle.com.
NESPRESSO USA: Faces Class Action Over Deceptive Product Warranties
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Kendall Heebink at lawstreetmedia.com reports that a complaint was
filed in the Southern District of New York by Abigail Shaughnessy
against Nespresso USA, Inc. The putative class action complaint
alleges that the defendant's product warranties condition the
continuation of the warranties based on the consumer's usage of an
authorized repair service.
The warranties of Nespresso products are described in the complaint
as tying arrangements, which "state or imply that a consumer must
buy or use an item or service from a particular company to keep
their warranty coverage." In this case, the consumer must use the
defendant's authorized repair service to maintain their warranty,
the complaint says.
The plaintiff owns one of the defendant's espresso and coffee
machines called the Nespresso Vertuo. The complaint explains that
Nespresso's tying arrangement violate both state and federal law
since it adds unlawful restrictions against third parties who
provide repair services and implies that consumers must continually
buy Nespresso branded coffee capsules in order to maintain their
warranty.
The warranty explicitly states that users of the defendant's
product should only use capsules that are intended for the
appliance. However, plaintiff Shaughnessy alleges that the
Nespresso coffee capsules are sold at inflated prices, yet
consumers have to buy them for the sake of their warranty.
Plaintiff Shaughnessy asserts that had she known about the unlawful
tying arrangement, she would not have purchased the defendant's
product or she would have paid significantly less for it.
The complaint cites violations of the Magnuson-Moss Warranty Act,
unjust enrichment, fraud, fraudulent omission, and declaratory
judgement. The plaintiff seeks class certification, favorable
judgement on each count, compensatory, statutory, and punitive
damages, pre-judgement interest, restitution, litigation fees, and
a trial by jury.
The plaintiff is represented by Bursor & Fisher, P.A. [GN]
NEW YORK LIFE: S.D. New York Narrows Claims in Krohnengold Suit
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In the case, STUART KROHNENGOLD, et al., Plaintiffs v. NEW YORK
LIFE INSURANCE COMPANY, et al., Defendants, Case No. 21-CV-1778
(JMF) (S.D.N.Y.), Judge Jesse M. Furman of the U.S. District Court
for the Southern District of New York grants in part and denies in
part the Defendants' motion to dismiss the Plaintiffs' claims.
Former and current participants in certain 401(k) plans bring the
putative class action alleging violations of the Employee
Retirement Income Security Act, 29 U.S.C. Section 1001 et seq. More
specifically, the Plaintiffs allege that New York Life Insurance
Co. ("NYL"), its Fiduciary Investment Committee, and the members
thereof breached their fiduciary duties, engaged in prohibited
transactions, and violated ERSIA's anti-inurement provision in
connection with their management of two NYL 401(k) plans.
The allegations center on the Defendants' use of NYL's Fixed Dollar
Account as the default investment option for the Plans, as well as
their selection and retention of certain proprietary funds (the
"MainStay Funds") that allegedly cost more than similar investment
options and underperformed benchmarks chosen by NYL itself.
According to them, the Defendants' imprudent decisions with respect
to these investments cost Plan participants hundreds of millions of
dollars in retirement assets from 2015 to the present.
The Plaintiffs are seven former and current participants in two
401(k) plans sponsored by NYL: The Employee Progress Sharing
Investment Plan (the "Employee Plan") and the Agents Progress
Sharing Investment Plan (the "Agents Plan"). Krohnengold, Antoine,
Webber, and Gilbert are participants in the Employee Plan; Musni is
a participant in the Agents Plan; and Medici and Bendrihem are
participants in both.
The Plans are defined contribution plans. As of the end of 2019,
the two Plans combined had more than $4.3 billion in assets and
more than 29,600 participants. The Plans provides participants with
a menu of investment options, selected by the Committee, from which
to choose. During the proposed Class Period (from March 1, 2015, to
the present), the Committee selected and retained various NYL
proprietary funds as investment options, including, as relevant
here, the Fixed Dollar Account and nine other proprietary mutual
funds, known as the MainStay Funds.
The Plaintiffs challenge the Defendants' use of the Fixed Dollar
Account as the Plans' default investment option as well as their
selection and retention of the MainStay Funds despite these funds'
high costs and poor performance. More specifically, they bring five
claims: (1) a claim against the Committee and its members
(together, the "Committee Defendants") for breach of fiduciary
duties under ERISA Section 404, 29 U.S.C. Section 1104; (2) a claim
against NYL and the Committee Defendants for engaging in prohibited
transactions under Section 406(a), 29 U.S.C. Section 1106(a); (3) a
claim against NYL and the Committee Defendants for self-dealing in
violation of Section 406(b), 29 U.S.C. Section 1106(b); (4) a claim
against NYL for co-fiduciary liability under Section 405(a), 29
U.S.C. Section 1105(a); and, finally, (5) a claim against NYL and
the Committee Defendants for violating ERISA's anti-inurement
provision, Section 403(c)(1), 29 U.S.C. Section 1103(c).
The Plaintiffs allege that, in total, Plan participants could have
saved over $930 million more for retirement from 2015 to 2020 if
the Committee Defendants had chosen a more appropriate default
investment option for the Plan than the Fixed Dollar Account. They
further claim that the Committee Defendants' decision to include
and retain the MainStay Funds as investment options "resulted in
more than $68 million in losses to Plan participants compared to
NYL's selected benchmarks."
The Defendants move to dismiss the Plaintiffs' claims regarding the
Fixed Dollar Account, pursuant to Rule 12(b)(1); and move to
dismiss the entirety of the Amended Complaint, pursuant to Rule
12(b)(6), for failure to state a claim. They contend that the
Plaintiffs lack Article III standing to bring their claims
regarding the Fixed Dollar Account. In addition, they argue that
each of the Plaintiffs' claims related to the Fixed Dollar Account
and the Mainstay Funds -- for breach of fiduciary duties,
prohibited transactions, self-dealing, co-fiduciary liability, and
violation of ERISA's anti-inurement provision -- fails to state a
claim.
Initially, Judge Furman concludes that four of the seven Plaintiffs
(Bendrihem, Gilbert, Medici, and Musni) lack standing to bring
fiduciary-duty claims challenging the Defendants' designation of
the Fixed Dollar Account as the default investment option and that
the corresponding claims of the other three Plaintiffs
(Krohnengold, Antoine, and Webber) are time barred. As to the said
four Plaintiffs, he deems abandoned their claims regarding the
Fixed Dollar Account because they do not dispute the Defendants'
assertion that Musni "affirmatively chose to allocate all of his
contributions to investments other than the Fixed Dollar Account"
when he enrolled in the Agents Plan. Nor did they submit any
affidavit from Musni averring that his contributions were in fact
defaulted into the Fixed Dollar Account.
In short, the claims of Bendrihem, Gilbert, Medici, and Musni with
respect to the Fixed Dollar Account must be and are dismissed
without prejudice for lack of standing. Because the remaining three
Plaintiffs were participants in the Employee Plan, not the Agents
Plan, the upshot is that the Plaintiffs' claim related to the Fixed
Dollar Account is limited to the Employee Plan.
With that, Judge Furman turns to the merits of the Plaintiffs'
claims. The Defendants argue that each of the Plaintiffs' five
claims -- for breach of fiduciary duties, prohibited transactions,
self-dealing, co-fiduciary liability, and violation of ERISA's
anti-inurement provision -- fails to state a claim. He concludes
that the Plaintiffs fail to allege a plausible fiduciary-duty claim
based on the MainStay MacKay International Equity Fund and a
plausible claim for violation of ERISA's anti-inurement provision.
Based on the foregoing, Judge Furman dismisses (i) the claims of
Musni, Bendrihem, Gilbert, and Medici with respect to the Fixed
Dollar Account, without prejudice, for lack of standing; (ii) the
claims of Krohnengold, Antoine, and Webber for breach of fiduciary
duties related to the Fixed Dollar Account; (iii) the Plaintiffs'
claims for breach of fiduciary duties in Count One based on the
MacKay International Equity Fund; and (iv) the Plaintiffs' claims
for violation of ERISA's anti-inurement provision in Count Five,
with leave to amend. Judge Furman otherwise denies the Defendants'
motion.
The Plaintiffs may well be able to cure some of the deficiencies
identified. In particular, Judge Furman says, they may be able to
clarify that their fiduciary duty claims with respect to the Fixed
Dollar Account do implicate conduct within the relevant six-year
period.) Accordingly, he exercises discretion to grant them leave
to amend the claims that have been dismissed.
The Plaintiffs will file any Second Amended Complaint within four
weeks of the date of the Opinion and Order. If they do so, the
Defendants will answer or otherwise respond within three weeks of
the date on which the Plaintiffs' Second Amended Complaint is
filed. If the Plaintiffs fail to file a Second Amended Complaint,
the Defendants will answer the Plaintiffs' remaining claims within
six weeks of the date of the Opinion and Order. By separate Order
to be issued, the Court will reschedule an initial pretrial
conference.
The Clerk of Court is directed to terminate ECF No. 41.
A full-text copy of the Court's Aug. 9, 2022 Opinion & Order is
available at https://tinyurl.com/4yxzywfz from Leagle.com.
NEW YORK: Tucker Files Appeal to N.Y. Appellate Div.
----------------------------------------------------
TAMARA TUCKER, et al., individually and on behalf of all parents
and guardians of New York City public school students, is taking an
appeal from a court ruling in her lawsuit entitled Tamara Tucker,
et al., Plaintiffs, v. The City of New York, et al., Defendants,
Case No. 155933/2022, in the Supreme Court of the State of New
York, New York County.
The Plaintiffs filed a civil action against the City of New York,
the New York City Department of Education (DOE), and the DOE
Chancellor, David C. Banks, seeking injunctive relief for alleged
annulment of the DOE Fiscal Year (FY) 2023 education budget. The
Plaintiffs alleged that the DOE and Chancellor failed to require
the adoption of the DOE FY 2023 estimated education budget by the
New York City Board of Education prior to the vote by City Council
to adopt the City FY23 Budget, which thereby deprived the City
Council of the benefit of the public hearing, public comments, and
vote by the City Board. The Plaintiffs requested a restraining
order against the budget cuts to schools and for the City Council
to have an opportunity to revote on the education budget.
On July 22, 2022, Judge Lyle Frank granted the Plaintiffs a TRO.
The Defendants' requested to reconsider and vacate the TRO on July
25, 2022.
The appellate case is captioned as Tamara Tucker, et al. v. The
City of New York, et al., Case No. 22-03187, in the New York
Appellate Division, First Judicial Department, filed on July 26,
2022. [BN]
Plaintiffs-Petitioners TAMARA TUCKER, et al., individually and on
behalf of others similarly situated, are represented by:
Arthur Z. Schwartz, Esq.
ADVOCATES FOR JUSTICE
225 Broadway
New York, NY 10007
Telephone: (212) 285-1400
E-mail: info@arthurzschwartz.com
Defendants-Respondents THE CITY OF NEW YORK, et al., are
represented by:
Tahirih Mehrie Sadrieh, Esq.
NEW YORK CITY LAW DEPARTMENT
100 Church St.
New York, NY 10007
Telephone: (212) 356-0847
NUMERICA CREDIT: Nixing of Silvey's Contract-Related Claims Upheld
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In the case, BARBARA SILVEY, on behalf of herself and all others
similarly situated, Appellants v. NUMERICA CREDIT UNION,
Respondent, Case No. 38047-5-III (Wash. App.), the Court of Appeals
of Washington, Division Three, affirms the trial court's order
granting Numerica's CR 12(b)(6) motion to dismiss Silvey's
contract-related claims.
Ms. Silvey brought a putative class action against Numerica Credit
Union for breach of contract and related claims, contending that
contrary to its contracts with members, Numerica used her
"available" checking account balance rather than her larger
"ledger" or "actual" balance to determine her liability for
overdraft fees. She, a resident of Spokane, has a personal checking
account with Numerica. She alleges that Numerica breached its
contract by charging fees between Dec. 17, 2017, and April 4, 2018,
on five items that did not overdraw her account. The payments on
which she alleges she was assessed fees ranged in amount from $12
to $50.
As evidence of her contract with Numerica, Ms. Silvey attaches
three documents to her complaint. The first, attached as exhibit A,
is entitled Membership and Account Agreement. The second, attached
to Ms. Silvey's complaint as exhibit B, is a several-page personal
fee schedule showing changes in terms effective Sept. 1, 2017. The
document and its attachments predate all of her complained-of
transactions. Finally, attached to her complaint as exhibit C is
what Ms. Silvey describes as "another contract document," entitled
Member Overdraft Protection.
Ms. Silvey's Account Agreement describes a handful of other
documents to whose terms and conditions she agreed to by opening an
on-line account or by signing an account card: an "Account Card, if
applicable, the Funds Availability Policy Disclosure,
Truth-in-Savings Disclosure, Electronic Funds Transfer Agreement
and Disclosure, Privacy Notice Disclosure and any Account Receipt
accompanying this Agreement, and the Credit Union's Bylaws and
policies, and any amendments to these documents from time to time
which collectively govern your Membership and Accounts." None of
these is attached to her complaint.
In granting Numerica's motion to dismiss Ms. Silvey's claim, the
trial court relied in part on provisions of the Account Agreement
that disclose delays that apply before funds will be fully
available in her account. It also relied on provisions disclosing
that payments and transfers from her account may not be made unless
the funds in her account are both sufficient and available. The
trial court identified the other agreements incorporated by the
Account Agreement including the Funds Availability Policy
Disclosure and quoted the Overdraft Protection document's
explanation of events that affect the availability of funds.
From these provisions, the trial court concluded that Numerica's
contracts consistently made clear that the available balance of an
account is used, not the settled ledger or actual balance, in
determining whether an overdraft occurs. Finding no reasonable
basis for a consumer to construe "available funds" and "available
balance" as meaning ledger or actual balance, the trial court
granted the motion to dismiss. Ms. Silvey appeals.
The first issue on appeal is Ms. Silvey's allegation that Numerica
breached what she contends was its promise to assess overdraft and
NSF fees on the basis of a member's ledger balance, not their
available balance.
The Court of Appeals opines that (i) the parties' contracts provide
no textual support for Ms. Silvey's contention that Numerica
promised to assess overdraft and NSF fees on the basis of a
member's ledger balance; (ii) the agreements unambiguously disclose
that there are policies under which the availability of deposits
credited to a customer's Numerica account will be delayed; (iii)
the parties' contracts disclose that both sufficiency and
availability of funds are conditions to Numerica's obligation to
make transfers; and (iv) better-reasoned cases from other
jurisdictions having similar fact patterns support its analysis.
In addition to alleging breach of contract, Ms. Silvey's complaint
had asserted a claim for violation of the Washington Consumer
Protection Act (CPA), chapter 19.86 RCW. She argues that even if we
affirm dismissal of her breach of contract claim, the Court of
Appeals should hold that Numerica failed to demonstrate that there
are no facts under which the trial court could find that the credit
union's practices are unfair and deceptive under the CPA.
The Court of Appeals opines that (i) Ms. Silvey does not
demonstrate why it is unreasonable or deceptive for Numerica to
protect itself and other members from risk by treating those
approved, pending but unsettled transactions as reducing the
available funds in the member's account; and (ii) for Numerica to
impose an overdraft fee where it discloses that payments and fees
are based on a member's available balance, but without real-time
reporting of that balance, bears no relation to the deceptive
conduct. Hence, Ms. Silvey fails to state a Consumer Protection Act
claim.
Finally, Ms. Silvey's complaint alleged a breach of the covenant of
good faith and fair dealing that she argues can survive the
dismissal of her breach of contract claim. She argues she can
challenge Numerica's good faith in exercising its discretion
whether to pay overdrafts and assess an NSF or overdraft fee -- but
her challenge is not to the overdraft decision, it is to Numerica's
alleged bad faith in employing the available balance method.
The Court of Appeals has already held that the available balance
method is the method contractually provided by Numerica's
agreements. Numerica's agreement does not give it "discretion" to
apply the available balance or ledger balance method. Its agreement
calls for using the available balance method. Its agreement gives
it discretion, when applying the available balance method, whether
to pay an overdraft and assess a fee. Ms. Silvey has not
articulated any respect in which Numerica has abused that
discretion. No claim for breach of the covenant is stated.
A majority of the panel has determined the Opinion will not be
printed in the Washington Appellate Reports, but it will be filed
for public record pursuant to RCW 2.06.040.
A full-text copy of the Court's Aug. 9, 2022 Opinion is available
at https://tinyurl.com/2tmmfunn from Leagle.com.
Beth Ellen Terrell, Terrell Marshall Law Group PLLC, 936 N 34th St
Ste 300, Seattle, WA, 98103-8869, Ari Y. Brown, Attorney at Law,
3909 47th Ave S, Seattle, WA, 98118-1215, Howard Mark Goodfriend --
howard@washingtonappeals.com -- Smith Goodfriend PS, 1619 8th Ave
N, Seattle, WA, 98109-3007, Jeffrey Kaliel -- admin@kalielgold.com
-- Kaliel Gold, PLLC, 1100 15th St Nw 4th Floor, Washington, DC,
20005, Andrea Gold, Tycko & Zavareei LLP, 1828 L St Nw, Suite 1000,
Washington, DC, 20036, Jonathan Streisfeld, 1 W Las Olas Boulevard,
Suite 500, Fort Lauderdale, WA, 33301, Counsel for the
Appellant(s).
Matthew A. Mensik -- mam@witherspoonkelley.com -- Witherspoon
Kelley, 422 W Riverside Ave Ste 1100, Spokane, WA, 99201-0300,
Casey Morgan Bruner -- cmb@witherspoonkelley.com -- Witherspoon
Kelley, 422 W Riverside Ave Ste 1100, Spokane, WA, 99201-0300, Eric
Werlinger -- eric.werlinger@katten.com -- Katten, Muchin, Rosenman
LLP, 2900 K Street Nw, North Tower Suite 200, Washington, DC,
20007, Stuart Richter -- stuart.richter@katten.com -- Katten,
Muchin, Rosenman LLP, 2029 Century Park East, Suite 2600, Los
Angeles, CA, 90067-3012, Counsel for the Respondent(s).
SOLANA LABS: Bronstein Gewirtz & Grossman Files Securities Suit
---------------------------------------------------------------
Bronstein, Gewirtz & Grossman, LLC notifies investors that a class
action lawsuit has been filed against Solana Labs, Inc., the Solana
Foundation, Anatoly Yakovenko, Multicoin Capital Management LLC,
Kyle Samani, and FalconX LLC, on behalf of all persons and entities
who purchased or otherwise acquired SOL tokens ("SOL," the
"Tokens," or the "Securities") on or since March 24, 2020 (the
"Class Period"). Such investors are encouraged to join this case by
visiting the firm's site: www.bgandg.com/sol.
This class action seeks to recover damages against Defendants for
alleged violations of the federal securities laws.
Solana issues securities that are required to be but are not,
registered with the U.S. Securities and Exchange Commission. The
Complaint alleges that, during the Class Period, Defendants
promoted SOL securities (SOL tokens) and sold them to investors,
who have suffered losses from purchasing SOL securities.
A class action lawsuit has already been filed. If you wish to
review a copy of the Complaint you can visit the firm's site:
www.bgandg.com/sol or you may contact Peretz Bronstein, Esq. or his
Law Clerk and Client Relations Manager, Yael Nathanson of
Bronstein, Gewirtz & Grossman, LLC at 212-697-6484. If you suffered
a loss in SOL you have until September 6, 2022, to request that the
Court appoint you as lead plaintiff. Your ability to share in any
recovery doesn't require that you serve as a lead plaintiff.
Bronstein, Gewirtz & Grossman, LLC represents investors in
securities fraud class actions and shareholder derivative suits.
The firm has recovered hundreds of millions of dollars for
investors nationwide. Attorney advertising. Prior results do not
guarantee similar outcomes. [GN]
SOUTHEASTERN PROVISION: Judge OKs Suit Status for Immigrant Workers
-------------------------------------------------------------------
Jamie Satterfield at tennesseelookout.com reports that a judge shot
down a bid by the federal government to force each of the 104
Grainger County slaughterhouse workers rounded up in a legally
suspect raid to file suit against agents accused of targeting them
solely based on their race or ethnicity.
U.S. District Judge Travis McDonough agreed to grant class action
status in a lawsuit initially filed on behalf of a handful of the
104 Hispanic workers at Southeastern Provision slaughterhouse in
Bean Station impacted by the April 2018 raid.
The Department of Justice, which is representing dozens of federal
agents in the case, has been fighting for months now to avoid the
class-action designation. If the DOJ prevailed, it would mean each
worker - even those deported after the raid - would be forced to
hire attorneys and pursue individual trials, an expensive process
that could span years.
But McDonough ruled there is ample evidence showing federal agents
targeted all Hispanic workers at the plant under a single plan to
turn what was supposed to be a search for proof of tax evasion by
the slaughterhouse owner into the largest immigration raid in
recent Tennessee history.
"All class members are Latino and were, according to (the original
lawsuit), targeted for that reason," McDonough wrote in the order.
"They were all detained and taken to (a nearby National Guard)
Armory for processing . . . . The officers were all trained on the
same policy and plan, and all class members were subject to the
same treatment according to this plan.
"The class mechanism is likely the only way that individuals
injured during the raid could bring these claims," the order
stated. "The . . . . class members are low income and
geographically dispersed across the United States and South and
Central America, and many do not possess the English skills
necessary to navigate the American legal system . . . . The court
finds it difficult to believe that the damages in this case would
be so large as to influence deported and affrighted individuals to
come forward, locate counsel and sue the appropriate parties."
Records reviewed by the Tennessee Lookout show the plant raid,
which garnered national headlines and spurred at least one
documentary, was not supposed to be an immigration raid at all, and
the plant's workers were not supposed to be targets.
An IRS agent, instead, told a federal magistrate judge just days
before the raid that he and fellow agents wanted permission to go
inside the plant to collect records to use in a tax-evasion probe
against plant owner James Brantley.
But court records show agents and federal prosecutors had been
meeting for months prior to the search warrant request to plan a
round-up of Latinos working at the plant as part of then-President
Donald Trump's campaign promise to get tough on illegal
immigration.
White workers at the plant were allowed to roam free, while all
Hispanic workers were detained, handcuffed and held for hours
without any proof of wrongdoing, court records show. Dozens wound
up deported.
Attorneys 'Pleased' With Ruling
Attorneys with nonprofit groups including the Southern Poverty Law
Center and National Immigration Law Center filed suit in 2019 on
behalf of roughly six of those workers against the agents and the
U.S. government, alleging a conspiracy to violate rights to equal
protection and due process guaranteed under the U.S. Constitution.
The lawsuit alleges Hispanic workers were not only targeted because
of their race and ethnicity but were subjected to humiliation and,
in at least two instances, brutality.
The nonprofit groups' attorneys have been pushing McDonough to
classify that initial lawsuit as a class-action litigation, which
would allow them to mount a single case on behalf of all impacted
workers.
In a statement released, the two nonprofit legal groups praised
McDonough's ruling.
"This raid was conducted in an unnecessarily violent, humiliating
and demeaning manner toward Latino workers, National Immigration
Law Center senior staff attorney Michelle Lapointe said in the
statement. "We are pleased the court will allow the case to proceed
as a class action, and look forward to proving our claims in
court."
Southern Poverty Law Center Meredith senior supervising attorney
Meredith Stewart said the ruling "is a significant step in our
fight for justice for our clients and their families."
"The Constitution protects all people from law enforcement
overreach, and (the workers) look forward to vindicating those
rights in court," Stewart said. [GN]
TASMANIA: Ex Detainees Lodge Class Action Over Sexual Abuse
-----------------------------------------------------------
Lucy MacDonald at abc.net.au reports that more than 100 former
detainees of Tasmania's Ashley Youth Detention Centre have lodged a
class action in Tasmania's Supreme Court, alleging they were
whipped, kicked, bullied, encouraged to join gangs, sexually abused
and stripped naked.
The court documents include numerous allegations made by four
plaintiffs, with the action launched on behalf of another 101
former detainees.
Out of the 101, the earliest claimant alleges abuse dating back to
1961, while the most recent is from 2019.
"That's a span of just under 60 years, " lawyer for the plaintiffs
Angela Sdrinis said.
"On one level it was surprising and appalling. On another level we
know children in care, not just in Tasmania but in Australia and
around the world, have been victims of abuse."
The court documents detail the claims of the four men, dating back
to the early 1990s.
They allege the former detainees were physically or sexually
assaulted by staff or other detainees at the Ashley Youth Detention
Centre (AYDC) and their complaints about the incidents were
dismissed.
The plaintiffs say that as far as they were aware, complaints were
not recorded and no action was taken.
In particular, it is claimed that staff would enter detainees'
cells to commit physical and sexual assaults or deliberately leave
doors unlocked, knowing that detainees would enter the rooms,
sometimes as gangs, "to commit violent physical and sexual assaults
on each other".
One man, known as JC, alleged that he found the body of another
inmate the morning after the inmate was beaten by staff. A coronial
inquest found the assault had taken place two weeks earlier and
cleared the staff.
Another plaintiff, known as CA, alleged that after he fought off a
sexual attack by a staff member, he was assaulted by other staff
members, knocked unconscious, and locked in an isolation cell naked
for five days with only a blanket.
He also said that on numerous occasions he was exposed to the
sounds of other detainees being sexually assaulted in their cells
by staff at night.
The third plaintiff, RI, claimed that after he refused to perform
oral sex on a staff member, he was "punched and knocked out by
other staff" and had to go to Launceston General Hospital.
All four men allege they now have post-traumatic stress disorder
due to their time there, with some experiencing frequent
flashbacks, nightmares and suicide attempts.
AYDC 'didn't vet staff properly'
The claim also takes aim at staff hiring, training and supervision
at the detention centre.
It is alleged that not only did some of the staff have sexual or
physical allegations against them, but there were also members of
outlaw motorcycle gangs such as the Rebels and Outlaws working at
the centre.
One plaintiff claimed that on numerous occasions he saw staff
members encouraging detainees to contact gang members when they
were released.
It is alleged that AYDC did not vet staff properly and had no - or
at least not adequate - systems for de-escalating confrontations
with detainees or supervising staff to ensure they were not
verbally, physically or sexually abusive.
Instead, it claimed staff used inappropriate force, punished
detainees who tried to make complaints against other staff,
assaulted them and exposed them to other detainees who were known
or alleged to have engaged in physical or sexual violence against
previous detainees.
In one example, JC alleged that after he misbehaved, he was removed
by four guards who proceeded to abuse him.
"[They] grabbed him by the neck, threw him to the ground, kicked
him in the ribs, and dragged him across the yard to his cell, where
he was thrown onto a wooden bed and held down with pressure to his
neck until he lost consciousness," the document says.
"When JC regained consciousness three hours later, he was naked and
handcuffed. JC was not provided with medical attention."
'Don't forget, children as young as 10 were sent to Ashley'
Plaintiffs also described instances of being shoved, throttled,
punched, whipped, stripped naked, almost drowned, abused to the
point where they needed to be hospitalised, and denied medical
attention after suicide attempts.
The claims also detail degrading strip searches with guards who
would harass and laugh at detainees.
"A common occurrence when children were admitted to Ashley was that
they would be strip searched," Ms Sdrinis said.
"They'd have the scabies cream applied to them whether or not they
had scabies . . . . we've been told it burnt the skin, including
in the genital area.
"Don't forget, children as young as 10 were sent to Ashley."
But these allegations are not revelations.
The issues with the detention centre are well known and just last
year the state government announced it would close it down.
It is also about to be the subject of the Commission of Inquiry
into Institutional Responses to Child Sexual Abuse, with hearings
set to start soon.
"I believe the evidence that will come out of the public hearing
into Ashley will be very confronting as well," Ms Sdrinis said.
A spokesperson for the state government said they were unable to
comment as "legal action has been flagged".
"The Commission of Inquiry will be examining the AYDC in the
upcoming hearings and as we have shown, we will not hesitate to act
where required to ensure our children and young people are safe,"
they said. [GN]
TENNESSEE: Court Certifies Class and Subclass in A.M.C. v. Smith
----------------------------------------------------------------
In the case, A.M.C., et al., Plaintiffs v. STEPHEN SMITH,
Defendant, Case No. 3:20-cv-00240 (M.D. Tenn.), Judge Waverly D.
Crenshaw, Jr., of the U.S. District Court for the Middle District
of Tennessee, Nashville Division, grants in part the Plaintiffs'
Motion for Class Certification and denies without prejudice their
Motion for Preliminary Injunction.
The Plaintiffs are current and former enrollees in TennCare, which
is Tennessee's Medicaid program. The Defendant is Tennessee's
Director of the Division of TennCare. The Plaintiffs allege
TennCare's policies and practices violate the Medicaid Act, the
Fourteenth Amendment, and the Americans with Disabilities Act,
resulting in unlawful terminations of enrollees' health insurance
coverage. TennCare worked with multiple vendors to design the
TennCare Eligibility Determination System ("TEDS") to assist in the
processes.
The Plaintiffs were all disenrolled from TennCare after it
implemented TEDS in March 2019 (though, by now, TennCare has
restored coverage to all but one of them). They allege their
terminations stemmed from TennCare policies and practices that are
unlawful under the Medicaid Act, the Fourteenth Amendment, and the
ADA. They seek declaratory and injunctive relief regarding those
policies and practices.
The Plaintiffs have moved for class certification. They seek
certification of one primary class, as well as a "disability
subclass" and a "reinstatement subclass."
The Plaintiffs define the class as "all individuals who meet the
eligibility criteria for TennCare coverage and who, since March 19,
2019, have been or will be disenrolled from TennCare." Their
definition "excludes individuals, and the parents and legal
guardians of individuals, who requested withdrawal from the
TennCare program." Next, they define the disability subclass as
members of the class "who are 'qualified individuals with a
disability' as defined in 42 U.S.C. Section 12131(2)." Finally,
they define the reinstatement subclass as members of the class "who
were involuntarily disenrolled from TennCare between March 19, 2019
and March 18, 2020, and are not currently enrolled."
The Plaintiffs' motion for preliminary injunction incorporates the
class definition. They ask the Court to "prospectively reinstate
TennCare coverage" for all members of the class. They also ask the
Court to "prohibit the Defendant from involuntarily terminating any
class member's TennCare coverage until the person receives notice
and an opportunity for a fair hearing that complies with due
process."
The Plaintiffs' motions for class certification and a preliminary
injunction have been fully briefed. Post-briefing, the Court held a
hearing concerning the motions. Based on issues raised in the
hearing, the parties submitted supplemental briefs.
With respect to motion for class certification, Judge Crenshaw
explains that Rule 23 governs class certification. Rule 23(a) bars
certification unless "(1) the class is so numerous that joinder of
all members is impracticable; (2) there are questions of law or
fact common to the class; (3) the claims or defenses of the
representative parties are typical of the claims or defenses of the
class; and (4) the representative parties will fairly and
adequately protect the interests of the class." If a class
satisfies Rule 23(a), it must fall into one of the categories in
Rule 23(b). The category under which the Plaintiffs seek
certification is in Rule 23(b)(2).
Judge Crenshaw grants the motion for class certification and
certifies the class. He finds that the class satisfies Rule 23(a)
and Rule 23(b), subject to a caveat: collective litigation is only
appropriate regarding particular issues under Rule 23(c).
Judge Crenshaw finds that (i) the Defendant does not contest
numerosity; (ii) the Plaintiffs' claims depend on common
contentions capable of classwide resolution; (iii) although not all
injuries the Plaintiffs suffered were uniform, the "relevant
injuries" are the ones they seek to remedy through declaratory and
injunctive relief; and (iv) the Plaintiffs are adequate class
representatives and their attorneys are "qualified, experienced and
generally able to conduct the litigation.
Judge Crenshaw further finds that (i) the Defendant has acted on
grounds that apply generally to the class; (ii) indivisibility is
present; and (iii) the Plaintiffs' class is cohesive for the same
reasons the relief they seek is indivisible: Either the Defendant's
notices and practices violate his legal obligations to all class
members or to none.
Although he is certifying the class to resolve the common questions
outlined in Section III.A.1, Judge Crenshaw is not certifying the
class with respect to all issues raised by the Plaintiffs. Whereas
all class members received the same generic regulatory citation in
their notices of decision ("NODs"), the NODs did not all list the
same reasons for termination. TennCare has not acted "on a ground
that is applicable to the entire class" regarding the NODs' reasons
for termination. Judge Crenshaw would have to make "individualized
determinations" among class members' NODs to resolve the broad
question of whether they provide sufficiently clear and detailed
reasons supporting termination. This issue is not suitable for
collective litigation under Rule 23(b)(2).
Judge Crenshaw certifies a disability subclass, as requested.
However, he only does so with respect to particular issues. The
subclass meets the requirements of Rule 23, he says. He finds that
(i) the subclass is sufficiently numerous; (ii) the subclass shares
common issues; (iii) the alleged "injury to the named plaintiffs
and the conduct affecting the class," are identical; (iv) the
subclass' attorneys are adequate; (v) the subclass falls within
Rule 23(b)(2).
Judge Crenshaw does not certify the reinstatement subclass holding
that the issues raised on behalf of that subclass are either
incorporated in those certified for the class or are not
appropriate for class treatment.
Based on the foregoing, Judge Creshaw certifies a "Plaintiff Class"
consisting of "all individuals who, since March 19, 2019, have been
or will be disenrolled from TennCare, excluding individuals, and
the parents and legal guardians of individuals, who requested
withdrawal from TennCare." All named Plaintiffs will serve as
representatives of the Plaintiff Class.
Judge Creshaw certifies a "Disability Subclass" consisting of
"Plaintiff Class members who are 'qualified individuals with a
disability' as defined in 42 U.S.C. Section 12131(2)." Plaintiffs
S.F.A., Vivian Barnes, Carlissa Caudill, S.L.C., Charles E. Fultz,
Michael S. Hill, William C. Monroe, Linda Rebeaud, Kerry A. Vaughn,
and Johnny Walker will serve as representatives of the Disability
Subclass.
Having considered the requirements of Rule 23(g), Judge Crenshaw
appoints the Plaintiffs' current counsel to represent both the
Plaintiff Class and the Disability Subclass.
The Plaintiff Class and the Disability Subclass will collectively
litigate the particular issues outlined in the Memorandum Opinion
and Order.
Turning to motion for preliminary injunction, Judge Crenshaw
explains that a preliminary injunction is an "extraordinary
remedy." The Plaintiffs must make a "clear showing" that they are
entitled to one. Certainly, "scant evidence" will not support an
injunction.
Judge Creshaw opines that the Plaintiffs have not shown they are
entitled to a preliminary injunction. They attack a wide variety of
TennCare's policies, practices, and alleged errors. However,
several considerations prevent Plaintiffs from converting their
attacks into a showing of irreparable harm. To start, TennCare has
a disenrollment moratorium in place. So, there is no immediate
danger of new, erroneous coverage terminations. Moreover, TennCare
has corrected the errors that led to its previous, mistaken
disenrollments. And it has reinstated the coverage of impacted
class members. Finally, though the Plaintiffs allege past
constitutional harms, they do not show current or ongoing
impairments of their constitutional rights. All this means there is
neither a risk of impending irreparable injury nor a need for
immediate injunctive relief. For these reasons, the Plaintiffs'
Motion for Preliminary Injunction is denied without prejudice.
A full-text copy of the Court's Aug. 9, 2022 Memorandum Opinion &
Order is available at https://tinyurl.com/2p8r7wx6 from
Leagle.com.
TEXAS: Lt. Gov. Appeals Ruling Enforcing Subpoenas to 5th Cir.
---------------------------------------------------------------
DAN PATRICK, in his official capacity as Lieutenant Governor of the
State of Texas, et al. are taking an appeal from a court ruling
granting the United States' motion to enforce third-party subpoenas
in the lawsuit entitled United States of America, Plaintiff, v.
State of Texas, et al., Defendants, Case No. 3:21-CV-00299, in the
U.S. District Court for the Western District of Texas.
The Plaintiffs, individually and on behalf of similarly situated
registered voters and a coalition of organizations, brought this
class action suit against the Defendants for the Texas Legislature
for the State House's approval of redistricting plans in violation
of their rights under the Fourteenth Amendment of the U.S.
Constitution and the Voting Rights Act of 1965. The Plaintiffs seek
a declaratory judgment that the redistricting plans for the Texas
House (Plan H2316), Senate (Plan S2168), State Board of Education
(SBOE) (Plan E2106), and Congress (C2193) violate their civil
rights because the plans unlawfully dilute the voting strength of
Latinos. The Plaintiffs further seek a declaratory judgment that
the challenged redistricting plans intentionally discriminate
against them on the basis of race and national origin.
The Court had consolidated this action with the case styled League
of United Latin American Citizens, et al., individually and on
behalf of all others similarly situated, Plaintiffs, v. GREG
ABBOTT, in his official capacity as Governor of the State of Texas,
et al., Defendants, Lead Case No. 3:21-CV-00259.
On June 17, 2022, the United States filed a motion to enforce
third-party subpoenas duces tecum against Texas legislators, their
staff, and a staff member of the Texas Legislative Council seeking
both tangible and electronically stored information. The United
States argued the legislators have inappropriately (1) asserted
attorney-client privilege, work-product protection, and state
legislative privilege over factual data; (2) claimed work-product
protections over materials not prepared in anticipation of
litigation, including documents drafted almost two decades ago; and
(3) advanced an overbroad conception of the common-law state
legislative privilege, withholding even communications with members
of the public.
District Judge David C. Guaderrama granted the United States'
motion on July 25, 2022. The Court ordered the legislators to
produce the requested documents within 7 days of the Order.
The appellate case is captioned as League of United Latin Amer v.
Patrick, Case No. 22-50662, in the United States Court of Appeals
for the Fifth Circuit, filed on July 26, 2022. [BN]
Plaintiffs-Appellees LEAGUE OF UNITED LATIN AMERICAN CITIZENS, on
behalf of themselves and all others similarly situated, are
represented by:
Nina Perales, Esq.
MEXICAN-AMERICAN LEGAL DEFENSE & EDUCATIONAL FUND
110 Broadway Street
San Antonio, TX 78205
Telephone: (210) 224-5476
- and –
Molly Danahy, Esq.
CAMPAIGN LEGAL CENTER
1101 14th Street, N.W.
Washington, DC 20005
Telephone: (202) 736-2200
- and –
David Robert Fox, Esq.
ELIAS LAW GROUP, L.L.P.
10 G. Street, N.E.
Washington, DC 20002
Telephone: (202) 968-4546
- and –
Richard Scott Gladden, Esq.
LAW OFFICE OF RICHARD GLADDEN
1200 W. University Drive
Denton, TX 76201
Telephone: (940) 323-9300
- and –
Abha Khanna, Esq.
ELIAS LAW GROUP, L.L.P.
1700 7th Avenue
Seattle, WA 98101
Telephone: (206) 656-0177
- and –
George A. Quesada, Esq.
SOMMERMAN, MCCAFFITY, QUESADA & GEISLER, L.L.P.
3811 Turtle Creek Boulevard
Dallas, TX 75219
Telephone: (214) 720-0720
- and –
Mark P. Gaber, Esq.
CAMPAIGN LEGAL CENTER
1101 14th Street, N.W.
Washington, DC 20005
Telephone: (202) 736-2200
- and –
Robert Stephen Notzon, Esq.
LAW OFFICE OF ROBERT S. NOTZON
1502 West Avenue
Austin, TX 78701-0000
Telephone: (512) 474-7563
- and –
David A. Donatti, Esq.
AMERICAN CIVIL LIBERTIES UNION OF TEXAS
5225 Katy Freeway
Houston, TX 77007
Telephone: (713) 942-8146
- and –
Allison Jean Riggs, Esq.
SOUTHERN COALITION FOR SOCIAL JUSTICE
1415 W. Highway 54
Durham, NC 27707
Telephone: (919) 323-3909
- and –
Daniel Joshua Freeman, Esq.
U.S. DEPARTMENT OF JUSTICE
950 Pennsylvania Avenue, N.W.
Washington, DC 20530
Telephone: (202) 305-4355
- and –
Bonnie Ilene Robin-Vergeer, Esq.
U.S. DEPARTMENT OF JUSTICE
950 Pennsylvania Avenue, N.W.
Washington, DC 20530
Telephone: (202) 353-2464
- and –
Martin Golando, Esq.
405 N. St. Mary's Street
San Antonio, TX 78205
Telephone: (210) 471-1185
- and –
Gary Lynn Bledsoe, Esq.
BLEDSOE LAW FIRM, L.L.P.
7901 Cameron Road
Austin, TX 78754
Telephone: (512) 322-9992
Defendants-Appellants DAN PATRICK, in his Official Capacity as
Lieutenant Governor and Presiding Officer of the Texas Senate, et
al., are represented by:
Ryan Baasch, Esq.
OFFICE OF THE ATTORNEY GENERAL OF TEXAS
P.O. Box 12548 (MC-059)
Austin, TX 78711-2548
Telephone: (512) 936-2878
- and -
Taylor A.R. Meehan, Esq.
Frank H. Chang, Esq.
CONSOVOY MCCARTHY, P.L.L.C.
1600 Wilson Boulevard
Arlington, VA 22209
Telephone: (703) 243-9423
- and -
Patrick K. Sweeten, Esq.
OFFICE OF THE ATTORNEY GENERAL OF TEXAS
P.O. Box 12548
Austin, TX 78711-2548
TUYA INC: Robbins LLP Files Lawsuit Over Securities Violations
--------------------------------------------------------------
The Class: Shareholder rights law firm Robbins LLP informs
investors that a shareholder filed a class action on behalf of all
persons or entities that purchased Tuya, Inc. (NYSE: TUYA) American
Depository Shares ("ADSs") in or traceable to the Company's March
2021 initial public offering ("IPO"), for violations of the
Securities Act of 1933. Tuya developed and offers a purpose-built
"Internet of Things" ("IoTs") cloud platform that delivers a suite
of offerings, including Platform-as-a-Service, or PaaS, and
Software-as-a-Service, or SaaS, to businesses and developers. The
Company's proprietary products and services enable so-called "smart
devices," e.g., household items and appliances connected to the
internet, to communicate and interact with end users and online
information and services.
If you would like more information about Tuya, Inc.'s misconduct,
click here.
What is this Case About: Tuya, Inc. (TUYA) Misled Investors in
Connection With the Company's IPO
According to the complaint, the offering documents in support of
the IPO contained untrue statements of material fact. Leading up to
the IPO, Tuya claimed to be experiencing phenomenal growth. Tuya
claimed to be the "largest IoT PaaS business in the global market
of IoT PaaS in terms of the volume of smart devices powered" and
stated that its "business ha[d] scaled rapidly in recent periods,"
growing revenue by 70% year-over-year to $179.9 million in 2020.
Tuya held its IPO in March 2021, selling over 45 million ADSs at
$21 per ADS. However, unbeknownst to investors, a material portion
of Tuya's China-based customers were engaged in widespread illicit
activities to misleadingly promote and sell their products on
e-commerce marketplaces such as Amazon.com. Many of Tuya's most
significant customers were engaged in the systematic practice of
writing fake reviews and paying for positive reviews, in direct
violation of Amazon.com's seller policies and practices. The
ratings manipulation by a large contingent of Tuya's customer base
posed a significant undisclosed risk that Amazon.com would
terminate or limit the sale of products containing Tuya's
technology on its platform, thereby materially negatively impacting
the Company's financial results. Further, on March 1, 2021, more
than two weeks before the IPO, a data security organization, Safety
Detectives, had recovered a database that exposed 13 million
records of organized fake review scams linked to over 200,000
Amazon account profiles, many of which implicated Tuya's clients.
On May 11, 2021, it was reported that "several top Chinese sellers
disappeared from Amazon." The article noted that the "suspended
accounts contributed over a billion dollars in gross merchandise
value (GMV) to Amazon." Then, on July 9, 2021, it was reported that
Amazon had "closed 340 online stores of one of its largest Chinese
retailers in the first half of this year" as it cracked down
against paid reviews and other violations of Amazon's terms of use.
In subsequent weeks, Amazon banned hundreds of Chinese brands
across thousands of sellers' accounts, many of which were clients
of Tuya. Amazon stated that these sellers knowingly, repeatedly,
and significantly violated Amazon's seller policies, especially the
ones around review abuse.
Finally, Tuya announced its financial results for the second
quarter of 2021 and a disappointing outlook for third quarter of
2021. By August 2022, Tuya ADSs had dropped below $2 per ADS, or
90% below the price at which they were sold to the investing
public.
Next Steps: If you acquired shares of Tuya, Inc. pursuant to the
Company's IPO, you have until October 11, 2022, to ask the court to
appoint you lead plaintiff for the class. A lead plaintiff is a
representative party acting on behalf of other class members in
directing the litigation. You do not have to participate in the
case to be eligible for a recovery.
All representation is on a contingency fee basis. Shareholders pay
no fees or expenses. [GN]
WAL-MART STORES: N.M. App. Flips Award of Attys.' Fees in Puma Suit
-------------------------------------------------------------------
In the case, BRUCE PUMA and KATHLEEN PUMA, for Themselves and All
Others Similarly Situated, Plaintiffs-Appellees/Cross-Appellants v.
WAL-MART STORES EAST, LP; APPLICA CONSUMER PRODUCTS, INC.; and THE
BLACK & DECKER CORPORATION, Defendants-Appellants/Cross-Appellees,
Case No. A-1-CA-38023 (N.M. App.), the Court of Appeals of New
Mexico issued an Opinion:
a. reversing the district court's decision to award the Pumas'
attorney fees related to class certification and remanding
for recalculation of the attorney fees award without
inclusion of those fees, and for calculation of the Pumas'
reasonable attorney fees and costs of the appeal; and
b. otherwise affirming.
The appeal and cross-appeal arise in response to the district
court's decisions relating to the Pumas' claim that the Defendants
violated the Unfair Practices Act (the UPA), NMSA 1978, Sections
57-12-1 to -26 (1967, as amended through 2019).
The case arises from the Pumas' purchase of a Black & Decker Corp.
branded CM1050 B coffeemaker from a Wal-Mart store in Albuquerque,
New Mexico in May 2013. At the time, Wal-Mart displayed models of
various coffeemakers, including the Coffeemaker. Apart from its
display model and box, Wal-Mart did not display any advertising for
the Coffeemaker. The Pumas compared various coffeemakers, reviewing
the boxes of various models, including the box in which the
Coffeemaker was packaged. They also saw the display model of the
Coffeemaker. Wording on both the Coffeemaker and its box stated it
was a Black & Decker product. The Coffeemaker and its box also
displayed the Black & Decker hexagon logo used at the time.
The Pumas sought a reliable coffeemaker, and Mr. Puma had owned
Black & Decker tools in the past without any concerns about
quality. Black & Decker is a well-known company that has a
reputation for producing well-built products for good value. Mr.
Puma believed that the Coffeemaker was a Black & Decker product
that he could purchase without any problems, Mrs. Puma believed the
Coffeemaker was a better product than Wal-Mart's lower-priced
store-brand coffeemaker, and the Pumas were willing to pay more for
the Coffeemaker than the store-brand coffeemaker to the extent the
Coffeemaker was a better, more reliable product. They paid $19.92
for the Coffeemaker, believing it was a Black & Decker product.
Although Black & Decker has at all relevant times continued to
produce and sell consumer products with the Black & Decker name and
logos, it did not design, manufacture, distribute, or warrant the
Coffeemaker. Rather, the Coffeemaker was an Applica Consumers
Products, Inc. product. Applica and Black & Decker were parties to
a trademark licensing agreement whereby Applica paid royalties to
Black & Decker in exchange for Applica's ability to use the Black &
Decker name and trademarks in the sale of small kitchen appliances,
including the Coffeemaker. There is no corporate affiliation
between them, and a consumer reading the information on the
Coffeemaker's box would not know of any relationship between them.
The Pumas sued the Defendants, asserting various claims, including
violations of the UPA based on the Coffeemaker's branding (the UPA
name brand claim) and capacity (the 12-cup claim), unjust
enrichment, and breach of duty on behalf of other individuals who
bought the Coffeemaker. The district court certified a class
defined to include persons who purchased the Coffeemaker at a New
Mexico Wal-Mart store from 2009 to 2013, approximately 40,600 class
members.
Following a bench trial, the district court entered findings of
fact and conclusions of law. As to the Pumas' UPA name brand claim,
it concluded that the Defendants' conduct constituted an "unfair or
deceptive trade practice." It also concluded that, pursuant to the
UPA, the Pumas were entitled to $300 in statutory damages and
attorney fees, but because the class could not establish actual
damages, it was not entitled to damages. With regard to the unjust
enrichment claim, the district court concluded that, although the
Pumas and class members had not received a Black & Decker product
in purchasing the Coffeemaker, the Pumas were not entitled to
damages for unjust enrichment because they had not met their burden
of proof in establishing the amount of these damages.
The Pumas moved for attorney fees and requested a lodestar amount
representing the fees billed for the entire case and a 2.0
multiplier. After a hearing on the motion, the district court
awarded a lodestar that represented a reduction of the amount
requested by the Pumas, but that was not reduced as significantly
as Defendants argued was appropriate. Further, the district court
applied a multiplier of 1.5 to the lodestar.
The Defendants appeal, and the Pumas cross-appeal. The parties
argue whether the district court correctly determined or erred in
(1) concluding that the Defendants violated the UPA; (2) denying
the Pumas damages based on unjust enrichment; and (3) awarding the
Pumas certain attorney fees.
First, the Court of Appeals opines that the district court did not
err in concluding the Defendants violated the UPA. He finds that
the district court did not err in declining the Defendants'
invitation to apply Lanham Act precedent in ruling on the Pumas'
UPA name brand claim as the Legislature did not intend to require
courts to apply Lanham Act precedent in deciding UPA claims. And,
based on the district court's factual findings, it cannot say the
court erred in concluding that the Defendants' knowing and wilful
use of ambiguity as to a material fact, which tended to deceive a
reasonable consumer, constituted an unfair or deceptive trade
practice as defined in Section 57-12-2(D)(14). Hence, the district
did not err in concluding the Defendants' conduct constituted an
unfair or deceptive trade practice under the UPA.
The Court of Appeals takes a moment to emphasize what its decision
does not conclude. It does not conclude that the use of a trademark
by a licensee pursuant to a trademark licensing agreement by itself
constitutes an unfair or deceptive trade practice. Nor does it
conclude that evidence regarding the existence of a trademark
licensing agreement or the widespread use of these agreements is
per se irrelevant in determining whether the use of a trademark
constitutes an unfair or deceptive trade practice. Finally, it does
do not conclude that evidence concerning the quality of a product
marketed pursuant to a trademark licensing agreement is also per se
irrelevant. Rather, its decision is limited to concluding that the
district court was not required to apply Lanham Act precedent in
ruling on the Pumas' UPA claim, and that, under the circumstances,
the Defendants' knowing and wilful use of ambiguity as to material
fact, which tended to deceive a reasonable consumer, constituted an
unfair or deceptive trade practice.
Second, the Court of Appeals opines that the district court did not
err in denying damages for unjust enrichment. It finds that the
district court found that the expert's opinions were based on the
assumption that "the entirety of the various transactions that
resulted in a consumer purchasing the Coffeemaker from Wal-Mart
were unjust" and "made no effort to disaggregate the profit
generated from the lawful aspects of the transaction from those
aspects of the transaction that the Pumas alleged were wrongful."
Again it reiterates that the Pumas' own expert conceded that it was
possible for a transaction to have a just and unjust component to
it. Construing the district court's findings to uphold rather than
defeat its judgment, the Court of Appeals cannot say that its
findings, taken together, contradict its conclusion.
Finally, the Court of Appeals examines that attorneys' fees. The
Pumas prevailed on only one of their claims, their UPA name brand
claim, whereas the class members were not prevailing parties and
they were not entitled to attorney fees. Notwithstanding their
failure to prevail on most of their claims, the Pumas requested a
lodestar amount of $1,170,332.50 representing the fees billed for
the entire case and a 2.0 multiplier. The Defendants objected to
the hours claimed by the Pumas as the basis for their fees and
argued for a significant reduction. After a hearing on the motion,
the district court awarded a lodestar that represented a reduction
of the amount of hours requested by the Pumas, but not as much as
the Defendants argued was appropriate. Further, the district court
applied a multiplier of 1.5 to the lodestar.
The Court of Appeals opines that because the Pumas did not benefit
from the work related to certification and the work was not
reasonably necessary for the Pumas to prevail in their claim, it
was an abuse of discretion to award the Pumas attorney fees related
to certification. And, based on the district court's explanation of
its award and the significant decrease in the award, the Court of
Appeals concludes that the remainder of the lodestar award for the
Pumas' attorney fees was not an abuse of discretion. Finally, based
on the evidence presented and the district court's explanation of
its award, it cannot say that applying a 1.5 multiplier was against
the "logic and effect of the facts and circumstances."
A full-text copy of the Court's Aug. 9, 2022 Opinion is available
at https://tinyurl.com/267jc5a9 from Leagle.com.
Floyd D. Wilson, P.C., Floyd D. Wilson -- floydwilsonlaw@gmail.com
-- Cedar Crest, NM.
Freedman Boyd Hollander Goldberg Urias & Ward, P.A., David A.
Freedman, Christopher A. Dodd, Albuquerque, NM, for the Appellee.
Holland & Hart LLP, Larry J. Montano -- lmontano@hollandhart.com --
Santa Fe, NM.
Modrall, Sperling, Roehl, Harris & Sisk, P.A., Jennifer G.
Anderson, Albuquerque, NM.
Mitchell, Silberberg & Knupp LLP, Jeffrey Richardson -- jlr@msk.com
-- Gilbert S. Lee -- gsl@msk.com -- Los Angeles, CA, for the
Appellants.
McCoy Leavitt Laskey LLC, H. Brook Laskey -- blaskey@mlllaw.com --
Albuquerque, NM.
Goldberg Segalla LLP, Laura A. Colca -- lcolca@goldbergsegalla.com
-- Buffalo, NY, for Amicus Curiae Society of Product Licensors
Committed to Excellence.
WELLS FARGO: Bids for Lead Plaintiff Appointment Due August 29
--------------------------------------------------------------
Bragar Eagel & Squire, P.C., a nationally recognized shareholder
rights law firm, reminds investors that class actions have been
commenced on behalf of stockholders of Wells Fargo & Company (NYSE:
WFC), Unity Software, Inc. (NYSE: U), Amazon.com, Inc. (NASDAQ:
AMZN), and Outset Medical, Inc. (NASDAQ: OM). Stockholders have
until the deadlines below to petition the court to serve as lead
plaintiff. Additional information about each case can be found at
the link provided.
Wells Fargo & Company (NYSE: WFC)
Class Period: February 24, 2021 - June 9, 2022
Lead Plaintiff Deadline: August 29, 2022
In 2020, Wells Fargo expanded its so-called "Diverse Search
Requirement," also referred to as a diverse slate hiring policy,
requiring that at least 50% of interview candidates must represent
a historically underrepresented group with respect to at least one
diversity dimension (including race/ethnicity, gender, LGBTQ,
veterans, and people with disabilities) for most posted roles in
the U.S. with total direct compensation greater than $100,000 per
year. In addition, at least one interviewer on the hiring panel
must represent a historically underrepresented group with respect
to at least one diversity dimension.
On May 19, 2022, the New York Times published an article entitled
"At Wells Fargo, a Quest to Increase Diversity Leads to Fake Job
Interviews." Citing discussions with "seven current and former
Wells Fargo employees," including Joe Bruno, a former executive in
the Company's wealth management division, the article reported, in
relevant part, that "[f]or many open positions, employees would
interview a 'diverse' candidate," but that "often, the so-called
diverse candidate would be interviewed for a job that had already
been promised to someone else." The article further reported that
Mr. Bruno was fired after "complain[ing] to his bosses" about the
practice.
On this news, Wells Fargo's common stock price fell $-.44 per
share, or 1.04%, over two trading sessions, closing at $41.67 per
share on May 20, 2022.
On June 6, 2022, Reuters published an article entitled "Wells Fargo
Pauses Diverse Slate Hiring Policy after Reports of Fake Job
Interviews." The article reported that "Wells Fargo. . . . is
pausing a hiring policy that requires recruiters to interview a
diverse pool of candidates, after the New York Times reported such
interviews were often fake and conducted even though the job had
already been promised to someone else." The same article also
reported that "[t]he bank also plans to conduct a review of its
diverse slate guidelines, Chief Executive Officer Charles Scharf
told staff, according to a memo seen by Reuters."
Then, on June 9, 2022, the New York Times published an article
entitled "Federal Prosecutors Open Criminal Inquiry of Wells
Fargo's Hiring Practices." The article reported that federal
prosecutors are investigating whether Wells Fargo violated federal
laws by conducting fake job interviews in order to meet the
Company's Diverse Search Requirement. The article also revealed
that, since the New York Times ' May 19, 2022 article focusing on
the bank's wealth management business, "another 10 current and
former employees have shared stories about how they were subject to
fake interviews, or conducted them, or saw paperwork documenting
the practice," and that "sham interviews occurred across multiple
business lines, including its mortgage servicing, home lending and
retail banking operations."
That same day, Wells Fargo issued a press release entitled "Wells
Fargo Response to New York Times Article," which confirmed that
"[e]arlier, the [C]ompany temporarily paused the use of its diverse
slate guidelines," and that, "[d]uring this pause, the [C]ompany is
conducting a review so that hiring managers, senior leaders and
recruiters fully understand how the guidelines should be
implemented - and so we have confidence that our guidelines live up
to their promise."
Following these disclosures, Wells Fargo's common stock price fell
$3.68 per share, or 8.62%, over the following two trading sessions,
closing at $38.99 per share on June 13, 2022.
The complaint alleges that, throughout the Class Period, Defendants
made materially false and misleading statements regarding the
Company's business, operations, and compliance policies.
Specifically, Defendants made false and/or misleading statements
and/or failed to disclose that: (i) Wells Fargo had misrepresented
its commitment to diversity in the Company's workplace; (ii) Wells
Fargo conducted fake job interviews in order to meet its Diverse
Search Requirement; (iii) the foregoing conduct subjected Wells
Fargo to an increased risk of regulatory and/or governmental
scrutiny and enforcement action, including criminal charges; (iv)
all of the foregoing, once revealed, was likely to negatively
impact Wells Fargo's reputation; and (v) as a result, the Company's
public statements were materially false and misleading at all
relevant times. [GN]
*********
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