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C L A S S A C T I O N R E P O R T E R
Tuesday, September 27, 2022, Vol. 24, No. 187
Headlines
419 E. 70TH CAFE: Fails to Pay Minimum & OT Wages, Delgado Alleges
521 HICKS: Faces Erazo Suit Over Unpaid Wages, Retaliation
7-ELEVEN INC: N.D. Illinois Grants in Part Bid to Toss Curtis Suit
ABBVIE INC: Faces Another Class Suit Over Illegal Kickback Scheme
AC2T INC: Parties in Rosenfield File Bid to Amend Scheduling Order
AC2T INC: Stipulated Third Amended Scheduling Order Entered
ADVANCED PHARMACY: Class Cert "Placeholder" Bid Denied as Moot
AEGEAN MARINE: Order and Final Judgment Entered as to PwC Greece
AERIE PHARMACEUTICALS: Juan Monteverde Investigates Securities Suit
AIDS HEALTHCARE: Final Arbitration Award in Caremark Suit Confirmed
ALTRU HEALTH: Plan Participants Class Certified in Rosenkranz Suit
AMAZON.COM INC: May Face Suit Over Refusal to Hire Sex Offenders
AMBASSADOR GROUP: Del Obispo Seeks to Certify Class Action
APRIO LLP: Seeks Oct. 6 Extension to File Opposition Response
ARAMARK SERVICES: Rice Files Suit Over Unpaid Overtime Wages
AT&T MOBILITY: Arbitration Clients Seek Recovery for Illegal Fees
AUSTRALIA: Faces Class Action Over Alleged Age Discrimination
AUTOZONE INC: Intercepts Electronic Communications, Farst Claims
BARTON MALOW: Garcia et al. Sue Over Failure to Pay Overtime Wages
BELMAR CROSSINGS: Inaccessible to Disabled Persons, Cuesta Says
BIOMAT USA: Judge Won't Toss Class Action Over Privacy Violations
BP EXPLORATION: Bid for Summary Judgment in McClendon Suit Granted
BURLINGTON STORES: Misclassifies Asst. Store Managers, Suit Claims
CAIN & ASSOCIATES: Modified Case Management Order Entered in Sake
CANOO INC: Faces Various Shareholder Suits in California Court
CANVAS ENERGY: Wake Sues Over Non Payment of Oil and Gas Proceeds
CARGILL INC: Court Modifies Briefing Schedule in Tavares Suit
CASINO QUEEN: Deadline to Reply to Hensiek Suit Dismissal Moved
CHICAGO, IL: Court Denies Bid to Certify Classes in Williams Suit
CHRISTIAN CENTRE: Faces Sexual Abuse Class-Action Lawsuit
CLUB 360: Hearing on Summary Judgment Bid Set for Oct. 4
COAST DENTAL: Florida Court Dismisses 2 Claims in Davis TCPA Suit
COGIR MANAGEMENT: De Alba Labor Suit Removed to E.D. California
COLORADO CORING: Parties Seek More Time to Respond to Motions
COLOURPOP COSMETICS: Class Action Says Makeup Not Fit For Use
COMSTAR LLC: Woltag Suit Removed to D. Massachusetts
CONSOLIDATED NUCLEAR: Extension of Class Cert Bid Deadline Sought
COOPERATIVE REGIONS: Takahashi-Mendoza Suit Removed to N.D. Calif.
CYBEROPTICS CORP: Juan Monteverde Investigates Securities Suit
DATA STREAM: Emir Sues Over Field Technicians' Unpaid Overtime
DIGNITY HEALTH: Loses Partial Summary Judgment Bid v. Van Bebber
DOLLAR GENERAL: Griffith Labor Suit Removed to W.D. Pennsylvania
DTK FACILITY: Faces Arreola Suit Over Janitors' Unpaid Overtime
DUNGARVIN OHIO: Underpays Home Health Aides, Duvall Suit Claims
EARGO INC: Wolfe Sues Directors for Breach of Fiduciary Duties
ELITE INSURANCE: Underpays Insurance Sales Agents, Grabowski Says
FALKO BAKERY: Jimenez Sues Over Kitchen Staff's Unpaid Wages
FASHION NOVA: Alcazar Wins Class Certification Bid
FEDEX CORP: Summary Judgment Partly Granted in Sobaszkiewicz
FIRST ADVANTAGE: Case Management Order Entered in Stewart Suit
FLORIDA: Faces Class Action Suit for Underfunding of HBCUs
FLORIDA: Faces Migrants Class Action Over Human Trafficking
FLUXPACE DESIGN: Fails to Provide Proper Wages, Lopez Suit Says
FORD MOTOR: Court Enters Scheduling Order in Roe Class Suit
FRANK AKEF: Fails to Pay Proper Wages, Hyde Suit Alleges
FRIGATE'S WATERFRONT: McCann, et al., Seek Hybrid Class Status
FULGENT GENETICS: Bids for Lead Plaintiff Appointment Due Nov. 21
GEMINI THERAPEUTICS: Juan Monteverde Investigates Securities Suit
GENZYME CORP: Massachusetts Court Dismisses Wilkins Class Suit
GOLDMAN SACHS: Court Sets June 2023 as Gender Bias Suit Trial Date
GOLDMAN SACHS: New York Court Dismisses Falberg ERISA Class Suit
GOOGLE LLC: Deadline to File Claim in Photos Lawsuit Set Sept. 28
GRANDSOUTH BANCORP: Monteverde & Assoc. Probes Securities Suit
GRUMA CORP: Samperio Labor Suit Removed to C.D. California
HEARTY HEARTS: Ramirez Seeks Unpaid Home Health Aides' Overtime
I.C. SYSTEM: Seeks Leave to File Brief Sur-Reply in Weber Suit
IKEA US: Court Grants Bid for Summary Judgment in Dukich Class Suit
INDIO, CA: Barragan Suit Seeks Administrative Staff's Unpaid Wages
INFOSYS TECHNOLOGIES: Neumark Testimony Excluded From Koehler Suit
INTERTEK RESOURCE: Underpays Construction Staff, Work Suit Claims
JACKSON, MS: Fails to Provide Clean Water, Sterling Suit Alleges
JADE FARM: Refuses to Pay Legally Required OT Wages, Toxqui Says
JAG CONTRACTORS: Fails to Pay Overtime Wages, Jimenez et al. Claim
KANDI TECHNOLOGIES: Court Trims Claims in Venkataraman Class Suit
KELLER WILLIAMS: Bailey Sues Over Civil Rights, ADA Violations
KELLOGG SALES: Kennard's 1st Amended Suit Dismissed With Prejudice
KONINKLIJKE PHILIPS: Faces Suit Over Defective Breathing Devices
KROGER CO: Valenzuela Privacy Suit Removed to C.D. California
LA GRANDE BOUCHERIE: Cruz Files ADA Suit in S.D. New York
LA-Z-BOY INCORPORATED: Maddy Files ADA Suit in S.D. New York
LIBERTY MUTUAL: Court Enters Scheduling Order in Fralish Suit
LIFE & HEALTH: First $2.5-M FTSA Suit Settlement Seeks Approval
LUCINDAS INC: Dicks Files ADA Suit in S.D. New York
LUXOTTICA OF AMERICA: Court Amends Jan. 10, 2022 Calendar Order
LYONS BANCORP: Celso Sues Over Unlawful Multiple Overdraft Fees
MADISON APOTHECARY: Cruz Files ADA Suit in S.D. New York
MADISON COUNTY, IL: Court Dismisses Brown v. Sheriff and Jail
MALLINCKRODT PHARMACEUTICALS: Stifles Acthar Competition, Suit Says
MAPLEBEAR INC: Williams Files Suit in Cal. Super. Ct.
MAR TILE DESIGN: Salazar Sues to Recover Unpaid Overtime Wages
MARKS JEWELERS: Dicks Files ADA Suit in S.D. New York
MARSHAL SEEMAN: Millstein Seeks Initial OK of Settlement
MAYVENN INC: Parties File Stipulation Extending Briefing Schedule
MBA MORTGAGE: Remsnyder, et al., Seeks to Certify Class, Subclasses
MCKESSON MEDICAL: Colinayo Wage-and-Hour Suit Goes to E.D. Cal.
MEDICAL DISPOSABLES: Midwest Seeks to Withdraw Class Cert Bid
MEDLY HEALTH: Brown Sues Over Mass Layoff Without Advance Notice
MEMORIAL HEALTH: Ct. Certifies FLSA Class in Myers
MERCEDES-BENZ: Hamm Seeks Reconsideration of Class Cert Order
MERIDIAN BIOSCIENCE: Juan Monteverde Investigates Securities Suit
META PLATFORMS: Intercept Online Communications Without Consent
META PLATFORMS: Mitchell Sues Over Browsing Activity Interception
METHODIST MCKINNEY: Gleason Files Suit in E.D. Texas
MGM RESORTS: Refuses to Refund Casino Players' Cash Change
MICHAELS STORES: Farst Sues Over Unlawful Interception
MONOGRAM AEROSPACE: Briceno Wage-and-Hour Suit Goes to C.D. Cal.
MONSANTO CO: Long Beach, et al., Seek Final OK of Class Settlement
MUTUAL OF AMERICA: Goldstein Sues Over Breach of Fiduciary Duties
NANAK GROCERY: Das Sues to Recover Overtime Compensation
NASCAR DIGITAL MEDIA: Ortiz Sues Over Blind-Inaccessible Website
NATIONAL PSYCHIATRIC CARE: Tupper Files Suit in Cal. Super. Ct.
NEIGHBORHOOD HOUSING: Vargas Seeks Overtime Wages Under FLSA
NELNET SERVICING: Bump Sues Over Failure to Safeguard PII
NELNET SERVICING: Sayers Files Suit in D. Nebraska
NEW G NAILS: Sun Sues Over Unpaid Minimum and Overtime Wages
NEW YUNG: Xia, et al., Seek to Certify Rule 23 Class
NFL: James Sues Over Unlawful Disclosure of Personal Data
NORTHERN STATES POWER: Ly Files Suit in Minn. 4th Judicial Dist.
OKCOIN USA: Nguyen Files Suit in Cal. Super. Ct.
ONEIDA NATION ENTERPRISES: Maddy Files ADA Suit in S.D. New York
OVERBY-SEAWELL CO: Fails to Secure Customers' Info, Sheckard Says
OVERTIME SPORTS: Slade Files ADA Suit in S.D. New York
PALO BLANCO: Fails to Provide Proper Wages, Echavarria Says
PATRIOT OUTFITTERS: Ortiz Files ADA Suit in W.D. New York
PBF LOGISTICS: Monteverde & Associates Probes Securities Suit
PERGOLA 36: Faces Racial Discrimination Class Action in New York
PFIZER INC: Lima Files Suit in D. Minnesota
PHL VARIABLE: Advance Trust, et al., Seek Class Certification
PLAINS ALL: $230-M Settlement in Oil Spill Suit Gets Final OK
POP A LOCK: Faces Garcia Suit Over Unpaid Wages, Discrimination
PRIORITY PAYMENT: Celluci Suit Moved From S.D. Fla. to D. Mass.
PROGRESSIVE LEASING: Tidwell Sues Over Debt Collection Practices
PROGRESSIVE UNIVERSAL: Sued Over Improper Payment of Insurance
PROSPECT FINANCIAL: Filing of Class Status Bid Due Dec. 4
PUBLIX SUPER: Lozenges Packaging Misleading, Valiente Class Alleges
PZENA INVESTMENT: Monteverde & Associates Probes Securities Suit
QUDIAN INC: Court Dismisses Amended Greco Suit With Leave to Amend
RENOVACOR INC: M&A Investigates Possible Securities Class Action
ROCKY BRANDS: Website Not Accessible to Blind Consumers, Ortiz Says
SABROSAS EMPANADAS: Rodriguez Seeks Minimum & OT Wages Under FLSA
SCHUTZ CONTAINER: Balderas Wins Class Certification Bid
SIGNATURE FLIGHT: Herrera's Bid to Remand & for Attys.' Fees Denied
STRATFORD UNIVERSITY: Fails to Secure Students' Info, Suit Claims
SUBARU OF AMERICA: Amended Scheduling Order Entered in Weston
TA OPERATING: Daniels Wage-and-Hour Suit Goes to C.D. California
TAKEDA PHARMACEUTICALS: Value Drug Seeks to Certify Class
TD AMERITRADE: Court Dismisses Bruns Suit With Leave to Amend
TERMINIX GLOBAL: Monteverde & Associates Probes Securities Suit
THERANOS INC: Arizona Patients Seek Damages in False Blood Tests
TISHMAN SPEYER: Rent-Stabilization Suit Gets Class-Action Status
TODD UECKER: Salcedo, et al., File Provisional Class Status Bid
TURNER ACCEPTANCE: Garcia Sues Over Abusive Collection Calls
UMG RECORDINGS: Court Tosses Sulton's Copyright Infringement Claim
UNION PACIFIC: Wins Bid for Summary Judgment v. Blankinship
UNITED AIRLINES: N.D. Illinois Dismisses England Suit W/o Prejudice
UNITED PARCEL: Taylor WPCL Suit Removed to E.D. Pennsylvania
UNITED PARKING: Davis Sues Over Improper Parking Fee Charges
UNITED SERVICES: MSP Recovery Allowed to Seal Exhibits
UNITED STATES: Federal Judge Grants Marines Class Action Status
UNITED STATES: Tolling Standards Can Apply in Federal Class Suit
URBAN OUTFITTERS: Faces Tooley Suit Over Telephonic Sales Calls
VALLE DEL SOL: Castaneda Labor Suit Removed to E.D. California
VIRGINIA: Schools, Officials Face Suit Over Specialized Education
VIRGINIA: Violates Rights of Disabled Students, Class Action Says
WAL-MART ASSOCIATES: Carlos Loses Bid for Class Certification
WAL-MART INC: Oettle Seeks to Certify Illinois Class
WELLS FARGO: Agrees to Settle Mortgage Forbearance Suit for $94-M
WEST ORANGE, NJ: Balestiere Suit Removed to D.N.J.
WEST VIRGINIA: Southern Regional Jail Faces Civil Rights Suit
YATSEN HOLDING: Bids for Lead Plaintiff Appointment Due Nov. 22
[*] Washington Court of Appeals Voids Labor Class Action Waivers
*********
419 E. 70TH CAFE: Fails to Pay Minimum & OT Wages, Delgado Alleges
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The case, KAREN DELGADO, on behalf of herself and others similarly
situated, Plaintiff v. 419 E. 70TH CAFE, INC., doing business as
YORK GRILL AND JUICE BAR, and AMINE NAGI and ADEL NAGI,
individually, Defendants, Case No. 1:22-cv-07446 (S.D.N.Y., August
31, 2022) arises from the Defendants' alleged violations of the
Fair Labor Standards Act.
The Plaintiff was employed by the Defendants as a cashier, food
preparer, cleaner and general helper at the Defendants' restaurant
known as "York Grill and Juice Bar" beginning in October 2020
through on or about July 11, 2022.
The Plaintiff alleges that although she and other similarly
situated employees regularly worked more than 40 hours per week,
the Defendants knowingly and willfully denied them of their
lawfully earned overtime compensation at the rate of one and
one-half times their regular rates of pay for all hours worked in
excess of 40 per workweek. In addition, the Defendants failed to
pay her "spread of hours" premium for each day she worked in excess
of 10 hours. Moreover, the Defendants did not provide her with a
wage statement detailing her hours worked, her hourly rate of pay,
the basis for her compensation, itemizing any withholdings, and
setting forth her net pay.
On behalf of herself and all other similarly situated employees,
the Plaintiff seeks to recover against the Defendants all unpaid
wages, minimum wages, overtime, and "spread of hours" premiums, as
well as statutory damages and liquidated damages, pre- and
post-judgment interest, costs and expenses together with reasonable
attorneys' fees, and other relief as the Court determines to be
just and proper.
419 E. 70th Cafe, Inc. operates a restaurant known as "York Grill
and Juice Bar." Amine Nagi and Adel Nagi are co-owners of the
Corporate Defendant. [BN]
The Plaintiff is represented by:
Peter Hans Cooper, Esq.
CILENTE & COOPER, PLLC
60 East 42nd Street - 40th Floor
New York, NY 10165
Tel: (212) 209-3933
Fax: (212) 209-7102
E-mail: pcooper@jcpclaw.com
521 HICKS: Faces Erazo Suit Over Unpaid Wages, Retaliation
----------------------------------------------------------
EDGAR ERAZO, on behalf of himself and others similarly situated,
Plaintiff v. 521 HICKS INC. d/b/a VEKSLERS, ERIC WALTER VEKSLER and
ROBERT GENNADY VEKSLERS, individually, Defendants, Case No.
1:22-cv-05321 (E.D.N.Y., Sept. 7, 2022) is a civil action brought
by Plaintiff to recover from the Defendants injunctive and
declaratory relief through liquidated damages, compensatory
damages, pre-judgment and post-judgment interest, and attorneys'
fees and costs under the Fair Labor Standards Act, the New York
Labor Law, and the Wage Theft Prevention Act.
The Plaintiff worked for the Defendants as a deliveryman,
dishwasher, and cleaner from approximately October 2018 to January
2022. He alleges that the Defendants' failed to pay minimum wages,
and provide wage statements and wage notices. He also alleges the
Defendants' violation of the tip withholding provisions, and for
unlawful retaliation.
521 Hicks Inc., d/b/a Vekslers, is an Asian night market and
southern soul food restaurant in Cobble Hill in Brooklyn, New
York.[BN]
The Plaintiff is represented by:
Jacob Aronauer, Esq.
THE LAW OFFICES OF JACOB ARONAUER
225 Broadway, 3rd Floor
New York, NY 10007
Telephone: (212) 323-6980
E-mail: jaronauer@aronauerlaw.com
7-ELEVEN INC: N.D. Illinois Grants in Part Bid to Toss Curtis Suit
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In the case, DEVON CURTIS, individually and on behalf of all others
similarly situated, Plaintiff v. 7-ELEVEN, INC., Defendant, Case
No. 21-cv-6079 (N.D. Ill.), Judge Steven C. Seeger of the U.S.
District Court for the Northern District of Illinois, Eastern
Division, grants in part and denies in part the Defendant's motion
to dismiss.
7-Eleven operates a multinational chain of retail convenience
stores. It operates, franchises, and licenses thousands of stores
throughout the United States. 7-Eleven manufactures, designs, and
sells products with a store brand called "24/7 Life." The 24/7 Life
brand includes foam cups, foam plates, party cups, and freezer
bags. That brand appears on a "number of plastic products" in the
store. 7-Eleven represents that its 24/7 Life brand is recyclable.
The company includes "various claims regarding their recyclability"
on the packaging, meaning the boxes and bags.
One summer day, Curtis strolled into a 7-Eleven convenience store
in Chicago, and did a little shopping. She bought four products
from 7-Eleven's store brand, "24/7 Life." She picked up foam
plates, foam cups, party cups, and freezer bags, perhaps en route
to a picnic or a backyard BBQ.
Before getting her supplies and going on her way, Curtis took a
close look at the products. She noticed that the packaging used the
term "recyclable." That representation struck a chord with her.
Curtis worries about her environmental footprint, and she wanted to
avoid buying a product that would add another piece of garbage to a
mountain of trash.
Later, Curtis placed the products in a recycling bin, thinking that
they would enjoy new life as a new product someday. But according
to the complaint, the recycling never took place. None of the
products were actually recycled.
The problem, it turns out, wasn't the material used in the
products. According to the complaint, the products are made out of
plastics that could be recycled. But in reality, the products
aren't recycled that often because few recycling facilities take
that type of plastic. Also, some of the products lacked markings --
recycling designations known as RIC labels -- and thus did not give
recycling facilities the necessary information to sort the
products.
Ms. Curtis later realized that she bought products that ended up in
a landfill or an incinerator. Instead of going back to the store,
and demanding a refund, Curtis went to the federal courthouse.
Ms. Curtis brings an assortment of claims on behalf of herself and
a putative class of purchasers of the 24/7 Life products. She
brings three claims. Count I is a claim under the Illinois Consumer
Fraud and Deceptive Business Practices Act ("ICFA"), alleging that
7-Eleven deceptively or unfairly places the term "recyclable" on
the items despite their un-recyclability, in violation of the
Illinois Consumer Fraud and Deceptive Business Practices Act. Count
II alleges breach of express warranty. And Count III is an unjust
enrichment claim
7-Eleven removed the case to federal court. It then filed a motion
to dismiss the complaint for lack of standing to bring claims on
her own behalf, or on behalf of a class, and for failure to state a
claim. 7-Eleven brings a facial challenge to standing, even though
it doesn't use that terminology. It contends that Curtis "does not
allege any factual basis" to support standing. The question, then,
is whether the complaint alleges sufficient facts to give rise to
standing. A motion to dismiss for failure to state a claim
challenges the sufficiency of the complaint, not the merits of the
case. Subject matter jurisdiction, as always, comes first.
Ms. Curtis seeks three kinds of relief: (1) damages on behalf of
herself, (2) damages on behalf of a class, and (3) an injunction.
7-Eleven challenges her standing to seek each type of relief.
Judge Seeger opines that Curtis has sufficiently alleged an
injury-in-fact for Article III standing. 7-Eleven does not
challenge the two remaining prongs of standing (causation and
redressability). The complaint satisfies those requirements, too.
Curtis alleges that 7-Eleven's mislabeling caused her financial
injury, and that monetary relief would make her whole.
The next question involves her standing to represent a class that
includes purchasers of other products. The issue is whether Curtis
has standing to represent consumers who bought products that she
herself did not buy.
Ms. Curtis seeks to represent a class of all purchasers of 24/7
Life plastic products. She proposes a class that includes all
people in the United States who "purchased any of Defendant's 24/7
Life plastic products that were labeled as recyclable and: (1) did
not feature an RIC number on the product itself, and/or (2) was
made from RIC No. 5 plastic, and/or (3) was made from RIC No. 6
plastic."
7-Eleven argues that Curtis lacks standing to represent "classes of
individuals that purchased countless other 7-Eleven products."
According to it, her standing as the class representative is
limited to people who bought the four exact same products within
the 24/7 Life brand.
Judge Seeger holds that pinning down the scope of that putative
class can come later. For now, it is sufficient to conclude that,
for Article III purposes, Curtis has standing to sue on behalf of
buyers of substantially similar products, even if they purchased
different 24/7 Life plastic products from 7-Eleven. If the putative
class is overbroad, the Court can perform trimming down the road.
Finally, 7-Eleven argues that Curtis lacks standing to seek
injunctive relief. It contends that Curtis does not face a risk of
future harm and, therefore, has no standing to seek an injunction.
She has no standing to seek judicial protection that she doesn't
need.
Judge Seeger agrees. The complaint does not allege any facts
suggesting that there is a risk of future harm. The pleading
contains no allegations about the possibility of buying the
products again. It is hard to see how Curtis could be hoodwinked
again by the "recyclable" label, even if she bought the products
again. There is also no apparent need for an injunction, because
there is no reason to think that there is any likelihood that
Curtis will suffer the same harm again. Further, an allegation that
7-Eleven continues to sell the products is not enough to establish
standing for an injunction. The possibility that some class members
might not know about the mislabeling cannot give Curtis standing to
obtain injunctive relief, either. Even if there is a knowledge
disparity now (about the recyclability of the products), it won't
last forever.
So, for now, Judge Seeger dismisses the demand for injunction
relief, because the complaint gives no indication that there is any
likelihood of future injury. That said, the case is at the pleading
stage, so the Court could revisit the issue down the road if the
facts justify it.
Ms. Curtis' first claim alleges a violation of the Illinois
Consumer Fraud Act. A deceptive-practice claim under the ICFA has
five elements: (1) the defendant undertook a deceptive act or
practice; (2) the defendant intended that the plaintiff rely on the
deception; (3) the deception occurred in the course of trade and
commerce; (4) actual damage to the plaintiff occurred; and (5) the
damage complained of was proximately caused by the deception."
7-Eleven challenges two of the five elements. It n argues that the
"recyclable" labeling was not deceptive, and that Curtis failed to
plead actual damages. The first question is whether the complaint
alleges a deceptive act or practice within the meaning of the
statute.
Judge Seeger finds that the complaint offers two theories about why
the products are not recyclable. One theory is about the
availability of recycling facilities, and the other is about the
lack of markings on the products themselves. The second theory
states a claim, but the first theory does not. He holds that the
complaint fails to state a claim, at least in part. The complaint
is dismissed to the extent that the Plaintiff contends that the
products are not recyclable because of the unavailability of
recycling facilities.
The allegations about the lack of RIC markings are another story.
The complaint alleges that the products lack RIC markings on the
products themselves. And without the markings, the products can't
be recycled. Curtis basically alleges that the product is destined
for burial or burning, no matter what happens after it hits the
recycling bin. Even if there was a recycling facility on every
nearby street corner, it would not matter, because there is nothing
that they can do. They can't recycle these products because
7-Eleven did not give them the information that they need to
recycle it.
Judge Seeger holds that the Plaintiff's allegations about the lack
of an RIC number address the products themselves. The products need
to have RIC numbers to be recyclable, but they don't have RIC
numbers. The problem is intrinsic to the products. As is, before
they hit the recycling bin, they are not recyclable. So, the
complaint survives to the extent that it alleges that the products
lack RIC numbers.
The second issue, the existence of actual damages, isn't much of an
issue. Strictly speaking, injury under Article III is distinct from
actual damages under the statute. But in the case, they cover the
same ground. Curtis alleges that she would not have purchased the
24/7 Life products -- or would have paid less for them -- if she
had known that the items were not recyclable. That's enough to
state a claim that Curtis suffered actual damages. A motion to
dismiss is about notice pleading, and 7-Eleven is on notice.
The second claim is breach of warranty. To state a claim under
Illinois law, a plaintiff must allege that a seller: "(1) made an
affirmation of fact or promise; (2) relating to the goods; (3)
which was part of the basis for the bargain; and (4) guaranteed
that the goods would conform to the affirmation or promise."
7-Eleven challenges only the first element, arguing that Curtis
cannot "identify any express statement that the products she
purchased would be recycled." Without an affirmation of fact or
promise, Curtis' express warranty claim must fail. 7-Eleven
contends that the ICFA claim and the express warranty claim should
rise or fall together.
Judge Seeger opines that the Plaintiff's ICFA claim survives, at
least in part. 7-Eleven advances no other argument, so the express
warranty claim survives to the same extent as the ICFA. It survives
to the extent that it covers claims about the lack of RIC
designations.
Ms. Curtis's unjust enrichment claim relies on the same
allegations. She alleges that 7-Eleven deceptively labels its 24/7
Life products as "recyclable" when they are not recyclable.
Where "an unjust enrichment claim rests on the same improper
conduct alleged in another claim, then the unjust enrichment claim
will be tied to this related claim -- and, of course, unjust
enrichment will stand or fall with the related claim." Because he
finds that Curtis's ICFA claim survives in part, Judge Seeger holds
that her unjust enrichment claim survives as well (again, to the
extent that it covers claims about the lack of RIC designations).
For the foregoing reasons, Judge Seeger grants in part and denies
in part the Defendant's motion to dismiss. He grants the motion to
dismiss the demand for injunctive relief. He dismisses the claim
under the ICFA (Count I) to the extent that it rests on the
unavailability of recycling facilities or the likelihood that the
products will, in fact, be recycled. The claim under the ICFA
survives to the extent that it rests on an allegation about the
lack of RIC numbers. The breach of warranty claim (Count II) and
the unjust enrichment claim (Count III) survive to the same extent.
Judge Seeger otherwise denies the motion to dismiss.
A full-text copy of the Court's Sept. 13, 2022 Memorandum Opinion &
Order is available at https://tinyurl.com/5apyxppw from
Leagle.com.
ABBVIE INC: Faces Another Class Suit Over Illegal Kickback Scheme
-----------------------------------------------------------------
Kevin Dunleavy at fiercepharma.com reports that in Delaware, when
an investor filed a lawsuit against AbbVie claiming that a
"white-coat" kickback scheme had exposed the firm to liability, the
story had a familiar ring.
Less than two years ago, AbbVie paid $24 million to settle a fraud
lawsuit from the California Department of Insurance. Last
September, an Illinois judge ruled for investors, allowing that
suit to advance as a class action.
The Delaware suit names 12 defendants-current and former AbbVie
executives and board members-who ran the company when it was
alleged to have provided free "nurse ambassadors" to physicians who
prescribed immunology blockbuster Humira.
"By limiting the nurse ambassadors to only physicians who
prescribed Humira, the company violated the anti-kickback statute,"
the lawsuit read.
AbbVie sent registered nurses to patients' homes who passed
themselves off as working for doctors, when they were instead
serving the interests of the company, according to the suit.
"These ambassadors save physicians time, money, and resources," the
lawsuit read. "At no cost and considerable gain to the physician's
office, AbbVie nurses provide patient care, pharmacy and insurance,
authorization assistance, open enrollment resources, paperwork
help, advice on insurance products, and other services, all of
which provide a substantial value, so long as the doctors prescribe
AbbVie's drug instead of selecting another course of treatment."
An AbbVie spokesperson didn't immediately respond to a request for
comment.
In the California case, insurance officials alleged that AbbVie
also provided physicians with traditional kickbacks such as cash,
meals, drinks, gifts, trips and patient referrals to induce and
reward Humira prescriptions.
The Delaware lawsuit claims AbbVie deceived investors by
attributing the success of Humira to the company's sales and
marketing acumen. Then when the kickback allegations became public,
AbbVie's stock price dropped, and investors lost money.
The California case was initially sparked by a Florida
whistleblower, a former AbbVie nurse, who said that the company
used the ambassadors to prevent patient complaints about Humira
from reaching doctors.
Many other companies have had to fend off charges of similar
tactics, referred to as "white-coat" marketing. In 2017, Novo
Nordisk settled a whistleblower complaint over similar claims about
its diabetes drug promotions.
In 2018, when the National Healthcare Analysis Group and other
organizations sued 11 companies including Amgen, Biogen,
AstraZeneca, AbbVie, Bayer, Lilly and Gilead for their "white-coat"
strategies, it drew the attention of Congress. But the government
quickly concluded that the allegations lacked sufficient merit to
justify the cost of the investigation and prosecution. [GN]
AC2T INC: Parties in Rosenfield File Bid to Amend Scheduling Order
------------------------------------------------------------------
In the class action lawsuit captioned as Rosenfeld v. AC2T, Inc. et
al., Case No. 1:20-cv-04662-HG-PK (E.D.N.Y.), the Parties ask the
Court to enter an order granting an extension of the Plaintiff's
deadline to move for class certification from September 7, 2022 to
January 26, 2023.
There have been two previous requests to amend the Scheduling
Order, both of which were granted. Counsel for Defendant consents
to this request. Currently, in addition to Plaintiff's deadline to
move for class certification on September 7, 2022, the Defendant's
deadline to oppose is October 26, 2022, and the deadline for
Plaintiff's reply brief is November 23, 2022.
A copy of the Parties' motion to certify class dated Sept. 6, 2022
is available from PacerMonitor.com at https://bit.ly/3LyM2le at no
extra charge.[CC]
The Plaintiff is represented by:
Yitzchak Kopel, Esq.
BURSOR & FISHER P.A.
888 Seventh Avenue, Third Floor
New York, NY 10019
www.bursor.com
Telephone: (646) 837-7127
Facsimile: (212) 989-9163
E-mail: ykopel@bursor.com
AC2T INC: Stipulated Third Amended Scheduling Order Entered
-----------------------------------------------------------
In the class action lawsuit captioned as KALMAN ROSENFELD,
individually and on behalf of all others similarly situated, v.
AC2T, INC., Case No. 1:20-cv-04662-HG-PK (E.D.N.Y.), the Hon. Judge
Peggy Kuo entered an order stipulated third amended scheduling
order as follows:
1. Motion for Rule 23 Class Certification shall be due on or
before January 26, 2023.
2. The Opposition to the Motion for Rule 23 Class
Certification shall be due 49 days after the moving brief
is filed.
3. The Reply in Further Support of the Motion for Rule 23
Class Certification shall be due 28 days after the
Opposition is filed.
4. All fact discovery is to be completed 60 days after the
ruling on the motion for class certification.
5. A joint status report certifying the close of fact
discovery and indicating whether expert discovery is
needed is due 60 days after the ruling on the motion for
class certification.
6. Affirmative expert reports are due 60 days after the
ruling on the motion for class certification.
7. Rebuttal expert reports are due 90 days after the ruling
on the motion for class certification.
8. Depositions of experts are to be completed 120 days after
the ruling on the motion for class certification.
9. All discovery is to be completed 120 days after the ruling
on the motion for class certification.
10. A joint status report certifying the close of all
discovery is due 120 days after the ruling on the motion
for class certification.
11. If any party seeks a dispositive motion, the request for a
pre-motion conference (if required) or the briefing
schedule must be filed 127 days after the ruling on the
motion for class certification.
A copy of the Court's order dated Sept. 6, 2022 is available from
PacerMonitor.com at https://bit.ly/3BvE4EQ at no extra charge.[CC]
The Plaintiff is represented by:
Yitzchak Kopel, Esq.
Alec M. Leslie, Esq.
BURSOR & FISHER, P.A.
888 Seventh Avenue
New York, NY 10019
Telephone: (646) 837-7150
E-mail: ykopel@bursor.com
aleslie@bursor.com
The Defendant is represented by
Maria Ruiz, Esq.
KASOWITZ BENSON TORRES LLP
1441 Brickell Avenue, Ste. 1420
Miami, FL 33131
Telephone: (786) 587-1044
E-mail: mruiz@kasoqitz.com
ADVANCED PHARMACY: Class Cert "Placeholder" Bid Denied as Moot
--------------------------------------------------------------
In the class action lawsuit captioned as Sandusky Wellness Center,
LLC v. Advanced Pharmacy Concepts, LLC, Case No. 3:22-cv-01384-JZ
(N.D. Ohio), the Hon. Judge Jack Zouhary entered an order denying
as moot Plaintiff's "Placeholder" Motion for Class Certification
and Brief in Support.
Further, any subsequent Dismissal with prejudice, or setting forth
specific settlement terms and conditions, filed within 45 days,
shall supersede this Order. The Court also retains jurisdiction to
enforce the terms of the settlement, the Court says.
A copy of the Court's order dated Sept. 6, 2022 is available from
PacerMonitor.com at https://bit.ly/3RZ3die at no extra charge.[CC]
AEGEAN MARINE: Order and Final Judgment Entered as to PwC Greece
----------------------------------------------------------------
In the case, IN RE AEGEAN MARINE PETROLEUM NETWORK, INC. SECURITIES
LITIGATION, Case No. 1:18-cv-04993 (NRB) (S.D.N.Y.), Judge Noemi
Reice Buchwald of the U.S. District Court for the Southern District
of New York issued an Order and Final Judgment With Prejudice
Regarding PricewaterhouseCoopers Auditing Company S.A.
The matter came before the Court pursuant to the Order
Preliminarily Approving Partial Settlement and Providing for Notice
dated June 3, 2022, on the application of the Lead Plaintiff Utah
Retirement Systems and Defendant PricewaterhouseCoopers Auditing
Co. S.A. ("PwC Greece") to determine:
(i) whether the terms and conditions of the Nov. 9, 2021 PwC
Greece Stipulation and Agreement of Partial Settlement and the
March 22, 2022 Amendment to the PricewaterhouseCoopers Auditing
Company S.A. Stipulation and Agreement of Partial Settlement Dated
Nov. 9, 2021 (the "PwC Greece Stipulation" or the "PwC Greece
Settlement") are fair, reasonable and adequate for the settlement
of all claims asserted by the Lead Plaintiff on behalf of itself
and the Settlement Class, against Settling Defendant PwC Greece,
and should be approved;
(ii) whether judgment should be entered dismissing the Action
on the merits and with prejudice in favor of the Settling Defendant
and as against the Lead Plaintiff and all persons or entities who
are members of the Settlement Class herein who have not requested
exclusion therefrom;
(iii) whether final judgment should be entered as to the
claims against the Settling Defendant and the Dismissed Defendants
PricewaterhouseCoopers International Limited and
PricewaterhouseCoopers LLP; and
(iv) whether to order the release by the Settlement Class of
the PwC Greece Released Claims against the PwC Greece Released
Parties, as set forth in the PwC Greece Stipulation.
Due and adequate Notice have been given to the Settlement Class as
required in said Notice Order and the Court had considered all
papers filed and proceedings had herein and otherwise being fully
informed in the premises.
Judge Buchwald certifies, for settlement purposes only, pursuant to
Rule 23(a) and 23(b)(3) of the Federal Rules of Civil Procedure, a
Settlement Class defined as: "All Persons who purchased or
otherwise acquired Aegean Marine Petroleum Network, Inc. (Aegean)
securities or sold Aegean put options between Feb. 27, 2014 through
Nov. 5, 2018, inclusive (the Settlement Class Period), and were
allegedly damaged thereby.
Pursuant to Rule 23 of the Federal Rules of Civil Procedure, and
for the purposes of the PwC Greece Settlement only, Judge Buchwald
affirms the Court's determination in its Notice Order that Utah
Retirement Systems is appointed as the Class Representative.
All Settlement Class Members are bound by the Order and Final
Judgment with Prejudice Regarding PwC Greece. No Settlement Class
Member has filed objections to the PwC Greece Settlement.
Pursuant to Rule 23 of the Federal Rules of Civil Procedure, Judge
Buchwald approves the PwC Greece Settlement as set forth in the PwC
Greece Stipulation, and finds that the PwC Greece Settlement is, in
all respects, fair, reasonable and adequate, and in the best
interests of the Settlement Class Members.
The Consolidated Class Action Complaint is dismissed on the merits
with prejudice as against the PwC Greece Released Parties only and
without costs except for the payments expressly provided for in the
PwC Greece Stipulation.
The Court reserves jurisdiction, without affecting in any way the
finality of the Order and Final Judgment with Prejudice Regarding
PwC Greece, over: (a) implementation and enforcement of the PwC
Greece Settlement; (b) the allowance, disallowance or adjustment of
any Settlement Class Member's claim on equitable grounds and any
award or distribution of the PwC Greece Settlement Fund; (c)
disposition of the PwC Greece Settlement Fund; (d) hearing and
determining Lead Counsel's application for attorneys' fees, costs,
interest and expenses, including fees and costs of experts and/or
consultants; (e) enforcing and administering this Order and Final
Judgment with Prejudice Regarding PwC Greece; (f) enforcing and
administering the PwC Greece Stipulation, including any releases
and bar orders executed in connection therewith; and (g) other
matters related or ancillary to the foregoing.
Any plan of allocation submitted by the Lead Counsel or any order
entered regarding any attorneys' fee and reimbursement of costs and
expenses application will in no way disturb or affect this Judgment
and will be considered separate from the Order and Final Judgment
with Prejudice Regarding PwC Greece.
In the event that the PwC Greece Settlement does not become
effective in accordance with the terms of the PwC Greece
Stipulation or in the event that the PwC Greece Settlement Fund, or
any portion thereof, is returned to PwC Greece or any insurer who
might pay on their behalf, then the Order and Final Judgment with
Prejudice Regarding PwC Greece will be rendered null and void to
the extent provided by and in accordance with the PwC Greece
Stipulation, and will be vacated to the extent provided by the PwC
Greece Stipulation.
As a material condition of the PwC Greece Settlement, the Court
permanently bars, enjoins and restrains as follows: The Lead
Plaintiff and all other Settlement Class Members, on behalf of
themselves, their successors and assigns and any other Person
claiming (now or in the future) through or on behalf of them:
a. will be deemed to have, and by operation of the Order and
Final Judgment with Prejudice Regarding PwC Greece will have,
fully, finally and forever released, relinquished, dismissed and
forever discharged all PwC Greece Released Claims (including
Unknown Claims) against each and all of the PwC Greece Released
Parties, with prejudice and on the merits, without costs to any
party, and will have covenanted not to sue the PwC Greece Released
Parties with respect to all such PwC Greece Released Claims, and
b. will be permanently barred and enjoined from asserting,
commencing, prosecuting, instituting, assisting, instigating or in
any way participating in the commencement or prosecution, either
directly, representatively, derivatively or in any other capacity,
of (a) any action or other proceeding, in any forum, asserting any
PwC Greece Released Claim against any of the PwC Greece Released
Parties, or (b) any appeal of the portion of the Court's March 29,
2021 order dismissing the claims asserted in the Action regarding
PwCIL and PwC US.
PwC Greece and each of the other PwC Greece Released Parties will
be deemed to have released, dismissed and forever discharged all
PwC Greece Released Parties' Claims against the Lead Plaintiff, the
Plaintiff's counsel in the Action and any other Settlement Class
Member.
Without further Order of the Court, the parties may agree to
reasonable extensions of time to carry out any of the provisions of
the PwC Greece Stipulation.
There is no just reason for delay in the entry of the Order and
Final Judgment with Prejudice Regarding PwC Greece and immediate
entry by the Clerk of the Court is expressly directed.
A full-text copy of the Court's Sept. 13, 2022 Order & Final
Judgment is available at https://tinyurl.com/yjdjyhbx from
Leagle.com.
AERIE PHARMACEUTICALS: Juan Monteverde Investigates Securities Suit
-------------------------------------------------------------------
Juan Monteverde, founder and managing partner of the class action
firm Monteverde & Associates PC (the "M&A Class Action Firm"), a
national securities firm rated Top 50 in the 2018-2021 ISS
Securities Class Action Services Report and headquartered at the
Empire State Building in New York City, is investigating:
Aerie Pharmaceuticals, Inc. (AERI), relating to its proposed
acquisition by Alcon Inc. Under the terms of the agreement, AERI
shareholders are expected to receive $15.25 in cash per share they
own. Click here for more information:
http://monteverdelaw.com/case/aerie-pharmaceuticals-inc.It is free
and there is no cost or obligation to you.
About Monteverde & Associates PC
We are a national class action securities litigation law firm that
has recovered millions of dollars and is committed to protecting
shareholders from corporate wrongdoing. We were listed in the Top
50 in the 2018-2021 ISS Securities Class Action Services Report.
Our lawyers have significant experience litigating Mergers &
Acquisitions and Securities Class Actions. Mr. Monteverde is
recognized by Super Lawyers as a Rising Star in Securities
Litigation in 2013, 2017-2019, an award given to less than 2.5% of
attorneys in a particular field. He has also been selected by
Martindale-Hubbell as a 2017-2021 Top Rated Lawyer. Our firm's
recent successes include changing the law in a significant victory
that lowered the standard of liability under Section 14(e) of the
Exchange Act in the Ninth Circuit. Thereafter, our firm
successfully preserved this victory by obtaining dismissal of a
writ of certiorari as improvidently granted at the United States
Supreme Court. Emulex Corp. v. Varjabedian, 139 S. Ct. 1407 (2019).
Also, in 2019 we recovered or secured six cash common funds for
shareholders in mergers & acquisitions class action cases.
If you own common stock in any of the above listed companies and
wish to obtain additional information and protect your investments
free of charge, please visit our website or contact Juan E.
Monteverde, Esq. either via e-mail at jmonteverde@monteverdelaw.com
or by telephone at (212) 971-1341. [GN]
AIDS HEALTHCARE: Final Arbitration Award in Caremark Suit Confirmed
-------------------------------------------------------------------
In the case, Caremark LLC, et al., Petitioners v. AIDS Healthcare
Foundation, Respondent, Case No. CV-21-01913-PHX-DJH (D. Ariz.),
Judge Diane J. Humetewa of the U.S. District Court for the District
of Arizona issued an order:
a. denying Petitioner Caremark, L.L.C. and Caremark PCS,
L.L.C's Motion to Vacate or Correct the Arbitration Award;
b. granting Respondent AIDS Healthcare Foundation's Motion to
Confirm Award and Enter Judgment; and
c. denying Petitioner Caremark, L.L.C. and Caremark PCS,
L.L.C.'s Motion for Protective Order to Maintain Redactions
to Documents Filed in Accordance with May 5, 2022, Order.
At issue before the Court is whether to confirm or vacate the
arbitration award issued on Nov. 12, 2021, against Petitioners
Caremark LLC and Caremark PCS LLC (collectively, "Caremark"). On
Nov. 12, 2021, Caremark filed an Amended Motion to Vacate or
Correct the Arbitration Award on the ground that the arbitrator
exceeded his authority. In addition to responding to the Motion to
Vacate, Respondent AIDS Healthcare Foundation ("AHF") filed a cross
Motion to Confirm the Final Award and Entry of Judgment. Both
motions are fully briefed.
In its initial filing, Caremark also sought to seal the entire
action, which the Court subsequently denied. The Court did,
however, allow Caremark to file redacted versions of documents
describing Caremark's "incentive-fee formulas" because it found
Caremark had made an initial showing that its competitors could
obtain an advantage if the formulas were released to the public. It
then issued an Order that permitted the following docket numbers to
remain under seal, without prejudice to later move to unseal: 6,
12, 22, 24, 28, 31, 33, 34, 36, 37, 40, and 46. Caremark now brings
a Motion for Protective Order, which seeks to retain the redactions
to those documents.
AHF owns and operates retail pharmacies that serve HIV/AIDS
patients, including patients enrolled in Medicare Part D
prescription drug program. Each AHF-affiliated pharmacy submits
claims to Caremark for reimbursement.
Caremark contracts with prescription drug plan sponsors to provide
pharmacy benefit management services to the plan's members. It is a
pharmacy benefit manager ("PBM"). In this role, it manages the
prescription drug benefits of its clients, which includes, as
relevant here, government prescription drug plan sponsors. Caremark
offers several services to its clients, including the
administration and maintenance of nation-wide pharmacy networks to
provide pharmacy access to its clients' members. It has over 68,000
pharmacies enrolled in its various networks, including
AHF-affiliated pharmacies.
Under the various contract documents, pharmacies agree to provide
services in accordance with the terms of those agreements. When a
customer fills a prescription at a Caremark network pharmacy,
(e.g., an AHF-affiliated pharmacy), the pharmacy submits a
reimbursement claim to the customer's prescriptions insurance plan
via Caremark, and Caremark adjudicates the claim on behalf of its
client--the plan sponsor. This process confirms the prescribed
product is covered by the customer's health plan and advises the
pharmacy the reimbursement rate at the point of service for the
drug in addition to the amount of co-pay the pharmacy should
collect from the customer based on its plan coverage.
The case arises from an arbitration between the parties involving a
breach of contract claim. At issue was Caremark's operation of the
Performance Network Program ("PNP"). Under the PNP, Caremark was
authorized to take back from pharmacies like AHF public Medicare
Part D monies earmarked to pay for prescriptions for people of
limited financial means. Caremark then paid that money back to the
Part D plan sponsors. The result was that pharmacies like AHF
received less money than the Part D plan sponsors, who received the
negotiated reimbursement rates for public Part D monies.
AHF alleged the manner in which Caremark applied the PNP breached
the agreement between AHF and Caremark and the covenant of good
faith and fair dealing. It also sought a permanent injunction
prohibiting Caremark from operating the PNPs and sought damages
arising out of Caremark's performance network fees ("PNR Fees")
assessed to the pharmacies from Jan. 1, 2016, to 2020.
Beginning in 2007 and prior to November of 2019, each
AHF-affiliated pharmacy entered a separate "Provider Agreement"
with Caremark to participate in Caremark's Networks. On Nov. 4,
2019, the AHF pharmacies became a pharmacy chain in Caremark's
Networks, and Caremark and AHF executed four provider chain
agreements. The Provider Manual contains various arbitration
provisions, which state, "the award of the arbitrator(s) will be
final and binding on the parties, and judgment upon such award may
be entered in any court having jurisdiction thereof."
On July 1, 2016, select Caremark Medicare Part D pharmacy networks
became part of Caremark's PNP. On Jan. 1, 2016, instead of
assessing a flat network fee, pharmacies were assessed a variable
network fee range, contingent on their performance metrics, with
the higher performing pharmacies paying the lower fee. After
November 2019, Caremark scored the AHF pharmacies in the aggregate,
using one Trimester Report for the entire chain instead of an
individual Trimester Report.
On Nov. 12, 2019, AHF filed suit with the American Arbitration
Association, alleging Caremark's operation of the PNPs breached the
agreements between AHF and Caremark and the covenant of good faith
and fair dealing. It also sought a permanent injunction prohibiting
Caremark from operating the PNPs.
On May 4, 2020, Caremark filed a Motion to Sever, arguing AHF's
claims constituted a class action that the Provider Manual
prohibited. On Aug. 1, 2020, the arbitrator, William "Zak" Taylor,
denied Caremark's Motion.
On April 12, 2021, the arbitrator held a five-day evidentiary
hearing, where nine witnesses testified and over 690 exhibits were
entered into evidence. The arbitrator awarded AHF $22.6 million in
damages, an additional $365,799.44 in arbitration expenses,
including reasonable attorney's fees, and held that Caremark was
responsible for the entire sum. The arbitrator held the PNPs and
the NEFs that implemented them were "adhesive," and that Caremark
had "unchecked economic power."
The damages included: $2,164,775 for 2016; $2,503,514 for 2017;
$4,090,475 for 2018; $4,704,095 for 2019; $8,696,289.44 for 2020,
for a total of $22,159,148.44. The arbitrator also granted a
permanent injunction prohibiting Caremark from operating the PNPs
using the methodologies at issue in the arbitration claims because
"the calculations to determine the variable PNRs were not
actuarially based."
On Aug. 29, 2021, Caremark filed a Motion to Recalculate Damages
Computation, arguing the arbitrator should have based the damages
award calculation "on the contractual floor of PNR fees under the
contracts at issue for 2016 through 2020 awarding AHF the lowest
available PNR fees, rather than awarding AHF damages based on a
return of all PNR fees."
On Sept. 11, 2021, the arbitrator denied Caremark's Motion, finding
Caremark "made a tactical decision not to attack the damages amount
sought based on the view that presenting an alternative theory of
damages would undercut and detract from its position that no
damages at all should be awarded." On Nov. 12, 2021, the arbitrator
issued the Final Award.
On Dec. 1, 2021, Caremark filed its Motion to Vacate, arguing the
arbitrator exceeded his authority by an improper consolidation of
claims, adopting an irrational damages computation, and increasing
the amount of the damages award after the deadline for doing so had
passed. On June 24, 2022, AHF filed its Motion to Confirm the Final
Award and for Entry of Judgment, in which AHF essentially argues
the same points it does in its Response to the Amended Motion to
Vacate in addition to requesting attorneys' fees and costs.
Caremark argues that the arbitration award should be vacated for
three reasons: (1) the arbitrator improperly consolidated the
claims of fifty-one separate pharmacies into a single proceeding,
(2) the arbitrator adopted an irrational damages computation, and
(3) the arbitrator increased the damages award amount after the
deadline for doing so had passed.
Judge Humetewa rejects Caremark's argument that the arbitrator
manifestly disregarded the law when he resolved the AHF's claims in
a single proceeding. She similarly finds the arbitrator did not
adopt an irrational damage computation. She agrees with the
arbitrator that Caremark failed to raise its alternative damages
theory in its prehearing brief, during the hearing, in its initial
post-hearing brief, or in its responsive post-hearing brief.
Because she finds the arbitrator did so, he did not exceed his
authority in adopting AHF's damages computation for the years the
variable PNR fees applied. Last, she finds the arbitrator plausibly
interpreted the American Arbitration Association ("AAA") Commercial
Rule 50 as inapplicable to AHF's Motion to Correct the Damages
Award.
Because Caremark has not raised any meritorious argument in favor
of vacatur, Judge Humetewa "must grant" AHF's application for
confirmation of the award and enter judgment.
AHF has requested an award of its reasonable attorneys' fees and
costs incurred in seeking confirmation of the arbitration award,
which Caremark opposes. It also seeks prejudgment interest and
postjudgment interest.
Judge Humetewa award attorneys' fees and costs in the sum of
$114,333.09. She holds that the entries do not describe the time
spent on each individual task and therefore do not comply with Rule
54.2 and thus make it impossible for the Court to ascertain whether
the time spent on each task was reasonable. She therefore finds it
appropriate to reduce the hours expended on these block-billed
activities by 15%.
AHF also seeks prejudgment interest from the date the arbitrator
issued his final arbitration award, Nov. 12, 2021, through the date
their Motion to Confirm was filed, June 24, 2022. Caremark argues
AHF's request is untimely because it failed to make the request for
prejudgment interest before the arbitrator.
The arbitrator issued the Final Award on Nov. 12, 2021. AHF filed
this motion on June 24, 2022. Judge Humetewa thus finds $815,608.64
in prejudgment interest has accrued, calculated as follows:
$23,113,158.57 * 5.75% = $1,329,006.62; $1,329,006.62/365 days =
$3,641.11 per day; 224 days from Nov. 12, 2021, to June 24, 2022;
and 224 days * $3,641.11 = $815,608.64.
AHF also seeks postjudgment interest from the date the Court enters
judgment. Caremark argues AHF's request is untimely because it
failed to make the request for postjudgment interest before the
arbitrator. It further argues postjudgment interest should only
accrue from the date the Court enters its order confirming the
arbitration award, not from the date on which AHF filed its Motion
to Confirm.
First, JUdge Humetewa rejects Caremark's argument about
untimeliness for the same reasons as described. Second, the Ninth
Circuit has stated "post-judgment interest is awarded from the date
of judgment until the judgment is satisfied." On that basis, Judge
Humetewa will award postjudgment interest from the date of this
opinion until the date of payment.
As noted, Caremark now brings a Motion for Protective Order, which
seeks to retain the redactions. AHF opposes Caremark's Motion,
arguing Caremark failed to carry its burden of showing that
information subject to the motion is a trade secret. Caremark
argues trade secrets disclosed in prior court proceedings do not
lose protection in subsequent proceedings.
As an initial matter, Judge Humetewa notes the cases cited by
Caremark to support this proposition are not binding on the Court
because those cases are outside this Circuit. Second, as to the
variable-fee rates, she cannot conclude that Caremark receives a
competitive advantage from the secret or proprietary nature of a
variable network rebate and therefore will not redact this
information from the record. Finally, as to the point-of-sale rates
and the dispensing fees, Caremark fails to "articulate compelling
reasons supported by specific factual findings that outweigh the
general history of access and the public policies favoring
disclosure." Nor has Caremark met its burden of showing that
disclosure of those fees, which the arbitrator found substantively
unconscionable, will work "a clearly defined and serious injury" to
them. For these reasons, Judge Humetewa will deny Caremark's Motion
for Protective Order, and direct the Clerk of the Court to unseal
the entire case.
Accordingly, Judge Humetewa denies Caremark's Motion to Vacate and
grnts AHF's Motion to Confirm Award. The Final Award of the
Arbitration Panel, dated Nov. 12, 2021, is confirmed by the Court
pursuant to Section 9 of the Federal Arbitration Act, 9 U.S.C.
Section 9. AHFis awarded its reasonable attorneys' fees and costs
it incurred in seeking the confirmation of the final arbitration
award in the sum of $114,333.09.
Judge Humetewa denies Caremark's Motion for Protective Order.
Accordingly, the Clerk of the Court is directed to unseal all
filings in the case.
The Clerk of the Court will enter a judgment in favor of AHF
confirming the Final Award of the Arbitration Panel, dated Nov. 12,
2021.
AHF is awarded attorneys' fees and costs in the sum of $114,333.09,
plus pre-judgment interest computed on the total amount of
$23,113,158.57 at the annual rate of 5.75% and at a daily rate of
$3,641.11 running from Nov. 12, 2021, to the date of entry of this
Judgment, plus post-judgment interest on the foregoing sums at the
rate of 2.92% until paid in full.
The action is terminated.
A full-text copy of the Court's Sept. 14, 2022 Order is available
at https://tinyurl.com/b9ct3czt from Leagle.com.
ALTRU HEALTH: Plan Participants Class Certified in Rosenkranz Suit
------------------------------------------------------------------
In the case, Jana R. Rosenkranz, Joan Mondry, and Ramona Driscoll,
individually and on behalf of all others similarly situated,
Plaintiffs v. Altru Health System, the Altru Health System
Retirement Committee, and John Does 1-30, Defendants, Case No.
3:20-cv-168 (D.N.D.), Judge Peter D. Welte of the U.S. District
Court for the District of North Dakota, Eastern Division, grants
the Plaintiffs' motion for class certification.
Per the Court's prior order, the following claims and allegations
survived the Defendants' motion to dismiss: (1) claim of breach of
the fiduciary duty of prudence against the Committee based on the
allegations as to lower-cost class share and recordkeeping fees,
and (2) the entirety of the claim of breach of fiduciary duties by
failing to adequately monitor the Committee against Altru (the
"Remaining Claims").
Defendants Altru and Altru Health System Retirement Committee filed
a response, stating they do "not oppose the Plaintiffs' Motion for
Class Certification on these claims."
After independently reviewing the motion and the class
certification standards under Federal Rule of Civil Procedure 23,
Judge Welte grants the Plaintiffs' unopposed motion for class
certification. Pursuant to Federal Rule of Civil Procedure 23(a)
and (b)(1), the case is certified as a class action under the
Employment Retirement Income Security Act of 1974 ("ERISA"), 29
U.S.C. Section 1001 et seq.
Judge Welte certifies as the Plaintiff class: "All persons, except
Defendants and their immediate family members, who were
participants in or beneficiaries of the Plan, at any time between
Sept. 9, 2014; through the date of judgment (the Class Period)."
The Class claims are the Remaining Claims. The Class will be
represented by named Plaintiffs Jana R. Rosenkranz, Joan Mondry,
and Ramona Driscoll, and Capozzi Adler, P.C., is appointed as the
Class counsel. The parties are to meet and confer to agree on the
proposed notice to potential Class members pursuant to Federal Rule
of Civil Procedure 23(c)(2).
A full-text copy of the Court's Sept. 13, 2022 Order is available
at https://tinyurl.com/bdxtnrnp from Leagle.com.
AMAZON.COM INC: May Face Suit Over Refusal to Hire Sex Offenders
----------------------------------------------------------------
Douglas Jones at wtkr.com reports that Amazon is facing a possible
class action lawsuit in California after claimants allege that it
illegally used the state's online sex offender database when
conducting background checks on potential candidates for jobs with
the company.
Law 360 reported that in one example, a registered sex offender
filed documents in California federal court claiming Amazon used a
background check provider, which illegally used information found
on the state's sex offender database to deny him a job based on a
past rape conviction.
The bias suit prevented the plaintiff and others from getting jobs
with the company, including at its fulfillment centers, the lawsuit
claims, as Reuters reported.
According to Bloomberg Law, the lawsuit, which targets both Amazon
and the background check company it uses, could turn into a
potential class action case against the two entities.
Miguel Lerma Jr. is named in the court filings as suing Amazon.com
Services LLC, Amazon Logistics Inc, and Accurate Background Inc.
Lerma claims he worked at an Amazon fulfillment center in
California as a seasonal employee. Still, his conditional offer for
full-time employment was revoked when Accurate Background found out
about his 2011 felony rape charge. [GN]
AMBASSADOR GROUP: Del Obispo Seeks to Certify Class Action
----------------------------------------------------------
In the class action lawsuit captioned as DEL OBISPO YOUTH BASEBALL,
INC. d/b/a DANA POINT YOUTH BASEBALL, individually and on behalf of
all other similarly situated individuals and entities, v. THE
AMBASSADOR GROUP LLC d/b/a AMBASSADOR CAPTIVE SOLUTIONS;
PERFORMANCE INSURANCE COMPANY SPC; BRANDON WHITE; GOLDENSTAR
SPECIALTY INSURANCE, LLC; DOMINIC GAGLIARDI; and DOES 1 through 50,
Case No. 8:21-cv-00199-SPG-DFM (C.D. Cal.), the Plaintiff asks the
Court to enter an order granting motion for class certification
pursuant to Federal Rule of Civil Procedure 23.
Ambassador Group specializes in the captive insurance marketplace.
A copy of the Plaintiff's motion dated Sept. 2, 2022 is available
from PacerMonitor.com at https://bit.ly/3RU1ISe at no extra
charge.[CC]
The Plaintiff is represented by:
Michael F. Ram, Esq.
Marie N. Appel, Esq.
Ra O. Amen, Esq.
MORGAN & MORGAN
COMPLEX LITIGATION GROUP
711 Van Ness Avenue, Suite 500
San Francisco, CA 94102
Telephone: (415) 358-6913
Facsimile: (415) 358-6293
E-mail: mram@forthepeople.com
mappel@forthepeople.com
Ramen@forthepeople.com
- and -
Gretchen M. Nelson, Esq.
Gabriel S. Barenfeld, Esq.
NELSON & FRAENKEL LLP
601 S. Figueroa Street., Suite 2050
Los Angeles, CA 90017
Telephone: (213) 622-6469
Facsimile: (213) 622-6019
E-mail: gnelson@nflawfirm.com
gbarenfeld@nflawfirm.com
APRIO LLP: Seeks Oct. 6 Extension to File Opposition Response
-------------------------------------------------------------
In the class action lawsuit captioned as ANDREW LECHTER; SYLVIA
THOMPSON; LAWSON F. THOMPSON; RUSSELL DALBA; and KATHRYN DALBA, on
behalf of themselves and all other similarly situated, v. APRIO,
LLP f/k/a HABIF, AROGETI & WYNNE, LLP; and ROBERT GREENBERGER, Case
No. 1:20-cv-01325-AT (N.D. Ga.), the DefendantS asks the Court for
an extension of time to and through October 6, 2022 to file their
response in opposition to the Plaintiffs' motion for class
certification, filed August 23, 2022.
Aprio is a financial consulting and CPA firm.
A copy of the Defendants' motion dated Sept. 6, 2022 is available
from PacerMonitor.com at https://bit.ly/3UogEtK at no extra
charge.[CC]
The Defendants are represented by:
John E. Floyd, Esq.
John H. Rains IV, Esq.
Jennifer L. Peterson, Esq.
BONDURANT, MIXSON & ELMORE, LLP
3900 One Atlantic Center
1201 West Peachtree Street, N.W.
Atlanta, GA 30309
Telephone: (404) 881-4100
Facsimile: (404) 881-4111
E-mail: floyd@bmelaw.com
rains@bmelaw.com
peterson@bmelaw.com
ARAMARK SERVICES: Rice Files Suit Over Unpaid Overtime Wages
------------------------------------------------------------
LATRECHA RICE, individually and on behalf of all others similarly
situated, Plaintiff v. ARAMARK SERVICES, INC., Defendant, Case No.
1:22-cv-01545 (N.D. Ohio, August 31, 2022) is a collective action
complaint brought against the Defendant for its alleged widespread,
repeated, systematic, and consistent illegal policies that have
resulted in willful violations of the Fair Labor Standards Act and
the Ohio Minimum Fair Wage Standards Act.
The Plaintiff was hired by the Defendant as a Food Service Manager
in March 2022.
According to the complaint, the Plaintiff and other similarly
situated employees were suffered and permitted by the Defendant to
work more than 40 hours. However, instead of paying them overtime
compensation at the rate of one and one-half times their regular
rates of pay for all hours worked in excess of 40 per workweek, the
Defendant compensated on a regular salary basis, says the suit.
The Plaintiff seeks to recover unpaid overtime pay, an additional
and equal amount as liquidated damages, pre- and post-judgment
interest, costs and expenses of this action together with
reasonable attorney's fees and expert fees, and other legal and
equitable relief as the Court deems appropriate.
Aramark Services, Inc. provides food services, facilities
management, uniform services, refreshment services, hospitality
management, and supply chain services. [BN]
The Plaintiff is represented by:
Claire I. Wade, Esq.
Sean H. Sobel, Esq.
SOBEL, WADE & MAPLEY, LLC
55 Erieview Plaza, Suite 370
Cleveland, OH 44114
Tel: (216) 223-7213
Fax: (216) 223-7213
E-mail: wade@swmlawfirm.com
sobel@swmlawfirm.com
AT&T MOBILITY: Arbitration Clients Seek Recovery for Illegal Fees
-----------------------------------------------------------------
topclassactions.com reports that if you are a current or former
AT&T Wireless customer who does not reside in California, then you
may have a claim for monthly overcharges.
Customers complain that AT&T has been imposing an invented
"Administrative Fee" of $1.99 per line per month, and a so-called
"Regulatory Cost Recovery Charge" of $1.50 per line per month,
above and beyond AT&T's advertised price for the service. Customers
say that AT&T does not disclose the Administrative Fee or the
Regulatory Cost Recovery Charge when customers sign up. Customers
say that AT&T then falsely indicates on the bill that the
Administrative Fee is a government-related surcharge. Customers
also allege that both the Regulatory Cost Recovery Charge and the
Administrative Fee are not actually related to AT&T's costs, and
instead are simply used as revenue levers to covertly jack up
AT&T's monthly service prices and to pad its profits whenever AT&T
desires.
To date, AT&T has collected more than $7 billion in charges from
its subscribers through these "Administrative Fees" and "Regulatory
Cost Recovery Charges."
The law firm is working to recover money for AT&T Wireless
subscribers (excluding Californians) and to get the company to
change its ways and comply with the law.
Specifically, the law firm will pursue recovery of payments of
AT&T's "Administrative Fee" and "Regulatory Cost Recovery Charge"
for arbitration clients nationwide with the exception of
Californians.
Taking Legal Action Against AT&T Wireless
Recovering the extra fees you paid to AT&T may start with a process
called arbitration.
Currently, AT&T's "Consumer Service Agreement" attempts to prohibit
consumers from bringing or being part of a class action in court.
AT&T's Service Agreement instead states that each customer must
separately bring an individual private "arbitration" to be decided
by a private organization.
A law firm working with Top Class Actions, Hattis & Lukacs, is
seeking to represent AT&T Wireless customers in arbitrations.
Lawyers will file many separate arbitrations against AT&T Wireless
simultaneously before the American Arbitration Association (the
organization that the AT&T Consumer Service Agreement specifies
will hold the arbitrations).
AT&T may try to dodge the arbitration rules or proceedings. There
is a possibility the American Arbitration Association (AAA) will be
unable to hold these arbitrations because AT&T refuses to
participate in, or pay the required fees for, the arbitrations.
If that occurs, and if the law firm had accepted you to be a client
in arbitration, then at that point the attorney-client relationship
will end, and the law firm will no longer represent you.
Instead, the law firm will file one or more class action lawsuits
in court on behalf of AT&T's customers for a refund of the
"Administrative Fees" and the "Regulatory Cost Recovery Charges"
they paid. Although you would not be a client of the law firm at
that point, you could potentially be a class member in one of those
cases. We would update you about any such class action cases that
may apply to you.
Apply To Be A Client In the AT&T Wireless Deceptive Fees
Arbitrations
If you are a current or former AT&T Wireless customer who does not
reside in California, you may be able to get legal help to recover
the deceptive fees you paid.
Apply to be a client by completing the form on this page.
If the law firm accepts your application to be a client in
arbitration, then the law firm will contact you directly.
The law firm responsible for the content of this page is: Hattis
Law PLLC d/b/a Hattis & Lukacs. [GN]
AUSTRALIA: Faces Class Action Over Alleged Age Discrimination
-------------------------------------------------------------
sbs.com.au reports that Peter Freckleton has been disabled since he
was six years old, but is currently not eligible for the National
Disability Insurance Scheme (NDIS).
He developed infantile paralysis in both legs during the polio
pandemic in the 1950s.
When the NDIS rolled out, he was already over 65, and was therefore
deemed ineligible to access the scheme.
Now, he is one of the dozens of claimants in a class action, who
say they are being discriminated against due to their age.
"They made the restriction not whether you had your disability
before the age of 65, but what age you were when you applied," Mr
Freckleton said.
"I was really quite stunned to find that they had an age
restriction, because I, and other people, we've had (our
disability) since we were kids," he said.
"And I thought this is really unjust, and there are a lot of people
far worse off when I was, just not getting the help they need when
there's a national system already in place and they're banned from
it . . . I just thought that was totally cruel and unfair, and
something should be done about it."
Mr Freckleton said the funding available through the My Aged Care
program is not enough to fund care and equipment needed by people
with disabilities, such as a particular type of wheelchair, leg
braces, or home modifications.
"Disability is not in itself the end of the world, you can have a
perfectly good life provided you get some of the assistance you
need just to get around and participate in society," he said.
"There are various forms of equipment and so on that you need, but
once you have those . . . you can carry on living quite well and
contributing, but to deprive people of that just randomly because
of their birthday is what I call a calendar crime."
The class action is being launched against the federal government
by Mitry Lawyers.
According to Mitry Lawyers, the exclusion of disabled people 65
years and over from the NDIS has resulted in "hardship and
inequality for thousands of individuals" who require disability
support but are limited to accessing funds through My Aged Care
rather than the NDIS.
The class action would aim to remove the exclusion so all age
groups can access the NDIS.
Rick Mitry, principal lawyer at Mitry Lawyers, said he had had over
200 people express interest in joining the class action since it
became public over the weekend.
"There are too many people suffering needlessly . . . the
incapacity these people have is unbearable in my opinion," Mr Mitry
told SBS News.
"It doesn't take much to get them out of the situation and back
into some sort of normal life . . . that's essentially why we're
(doing it)."
"I think the only way to bring this to the attention of the
government is if these poor people make a claim."
What is the class action claiming?
The case is seeking compensation for those who are missing out on
NDIS plans, which Mitry Lawyers say are valued at approximately
$111,000 per year on average.
Mitry Lawyers is also considering psychological or health impacts
due to not being able to access the NDIS, as well as carers'
expenses, travel expenses, medical bills and loss of
opportunities.
The case will claim the government has acted beyond their
constitutional power due to the enactment of the 'Age Requirement'
of section 22 of the National Disability Insurance Scheme Act
2013.
The overall aim of the legal proceedings is to remove section 22
from the NDIS Act.
'We're just asking for equal treatment'
Under section 22, a person applying to access the NDIS must be aged
under 65 when the request was made in order to be eligible.
Mr Freckleton believes this amounts to both age discrimination and
disability discrimination.
He feels legal action is the only way forward.
"We have tried, we have spoken to both major parties and . . . they
will not budge on it," he said.
"And when governments go astray, the only thing you can do is try
and appeal to the courts . . . it's not something you do lightly,
but it seems to be - in desperation - the only way forward."
"We're not asking for special treatment. We're just asking for
equal treatment."
A spokesperson for the Department of Social Services told SBS News
the NDIS, which operates in all states and territories, is one part
of a broader system of disability support in Australia.
"People over the age of 65 are able to access support through the
aged care system," the spokesperson said.
"Those people who are receiving support under the NDIS and turn 65
can choose either to remain in the NDIS or to move to the aged care
system."
What is the NDIS and how does it work?
The NDIS is an Australia-wide government initiative designed to
help cover costs faced by people with disability.
The NDIS legislation was passed in 2013, and the scheme was rolled
out in 2020.
Through the NDIS, eligible people can access funding for
"reasonable and necessary" support needs related to their
disability.
In order to be eligible, applicants must be aged between seven and
65, hold Australian citizenship, permanent visa or protected
special category visa, reside in Australia, and have a "disability
caused by a permanent impairment".
After being approved to access the NDIS, individual plans are
created based on needs. [GN]
AUTOZONE INC: Intercepts Electronic Communications, Farst Claims
----------------------------------------------------------------
MATTHEW FARST, individually and on behalf of all others similarly
situated, Plaintiff v. AUTOZONE, INC., Defendant, Case No.
1:22-cv-01435-CCC (M.D. Pa., September 14, 2022) is a class action
against the Defendant for violation of the Pennsylvania Wiretapping
and Electronic Surveillance Control Act.
According to the complaint, the Defendant utilized a session replay
spyware to intercept the Plaintiff's and Class members' electronic
computer-to-computer data communications with the Defendant's
website, including how they interacted with the website, their
mouse movements and clicks, keystrokes, search terms, information
inputted into the website, and pages and content viewed while
visiting the website. The Defendant intercepted the electronic
communications at issue without the knowledge or prior consent of
the Plaintiff or Class members, says the suit.
Autozone, Inc. is an owner and operator of the website
www.autozone.com, with its principal place of business in
Tennessee. [BN]
The Plaintiff is represented by:
Ari H. Marcus, Esq.
MARCUS ZELMAN LLC
701 Cookman Avenue, Suite 300
Asbury Park, NJ 07712
Telephone: (732) 695-3282
Facsimile: (732) 298-6256
E-mail: Ari@marcuszelman.com
BARTON MALOW: Garcia et al. Sue Over Failure to Pay Overtime Wages
------------------------------------------------------------------
VERONICA GARCIA, SARAI GARCIA and VERONICA SANCHEZ, on behalf of
themselves and others similarly situated, Plaintiffs v. BARTON
MARLOW COMPANY, MBA CONSTRUCTION, INC., MARCOS ALBAY, and BLANCA
VALLEJO, Defendants, Case No. 3:22-cv-00590-JAG (E.D. Va., August
31, 2022) bring this complaint to recover unpaid overtime against
the Defendant pursuant to the Fair Labor Standards Act and the
Virginia Law.
The Plaintiffs have performed construction work for the benefit of
all the Defendants at several construction projects located in
Virginia. Plaintiff Sarai Garcia was employed from approximately
2020 until approximately June 2022, Plaintiff Veronica Sanchez was
from February 2019 until approximately June 2022, and Plaintiff
Veronica Garcia was from February 2019 through approximately June
2022.
The Plaintiffs claim that they and other similarly situated
construction workers frequently worked more than 40 hours in a
week. Specifically, they worked 10 hours per day Monday through
Thursday, 8 hours on Friday, and in many cases, an additional 8
hours on Saturday. However, the Defendant did not pay them the
legally required hourly premium for their overtime work. Instead,
they were paid at their regular hourly rate for all overtime hours
they have worked, says the suit.
On behalf of themselves and all other similarly situated
construction workers, the Plaintiffs seek all unpaid compensation,
all liquidated damages, reasonable attorneys' fees and expenses,
litigation costs, interest, and any additional relief as the Court
deems just.
Barton Malow Company is a construction contractor which provides
construction services in various locations, including substantial
services within the Richmond Division of the Eastern District of
Virginia. MBA Construction, Inc. provides construction workers for
Barton Marlow to use on construction projects. Marcos Albay is in
charge of MBA. Blanca Vallejo is responsible for MBA's finances.
[BN]
The Plaintiffs are represented by:
Matthew B. Kaplan, Esq.
THE KAPLAN LAW FIRM
1100 N Glebe Rd. Suite 1010
Arlington, VA 22201
Tel: (703) 665-9529
E-mail: mbkaplan@thekaplanlawfirm.com
- and -
Rachel Nadas, Esq.
Matthew K. Handley, Esq.
HANDLEY FARAH & ANDERSON PLLC
200 Massachusetts Ave., NW
7th Floor, Washington, DC 20001
Tel: 202-899-2991
E-mail: madas@hfajustice.com
BELMAR CROSSINGS: Inaccessible to Disabled Persons, Cuesta Says
---------------------------------------------------------------
CARLOS CUESTA and ACCESS 4 ALL INCORPORATED, individually and on
behalf of all other similarly situated mobility-impaired
individuals, Plaintiffs v. BELMAR CROSSINGS, LLC D/B/A BELMAR
CROSSING SHOPPING CENTER and SHOE CARNIVAL, INC. D/B/A SHOE
CARNIVAL, Defendants, Case No. 1:22-cv-02298-REB (D. Colo., Sept.
7, 2022) is an action for injunctive relief, a declaration of
rights, attorneys' fees, litigation expenses, and costs pursuant to
the Americans with Disabilities Act.
According to the complaint, the Plaintiff visited the Defendants'
commercial shopping center as a patron/customer. He attended a
quarterly meeting for member of the ACCESS 4 ALL INCORPORATED
organization, as a member. The Plaintiff has allegedly encountered
architectural barriers that are in violation of the ADA at the
subject commercial property and business therein.
The complaint asserts that the barriers to access at Defendants'
commercial property and Defendants' business within the commercial
property have each denied or diminished Plaintiff's ability to
visit the commercial property and endangered his safety. The
barriers to access have likewise posed a risk of injury(ies),
embarrassment, and discomfort to Plaintiff and others similarly
situated, says the suit.
The Defendants have discriminated against the individual Plaintiff
by denying him access to full and equal enjoyment of the goods,
services, facilities, privileges, advantages and/or accommodations
of their places of public accommodation or commercial facility,
adds the suit.
The Plaintiff is an individual with disabilities as defined by and
pursuant to the ADA. The Plaintiff is, among other things, a
hemiplegic with partial paralysis on his left side of the body.
Belmar Crossings, LLC owns and operates a commercial shopping
center located in Lakewood, Colorado.[BN]
The Plaintiff is represented by:
Anthony J. Perez, Esq.
GARCIA-MENOCAL & PEREZ, P.L.
1600 Broadway, Suite 1600
Denver, CO 80202
Telephone: (303) 386-7208
Facsimile: (305) 553-3031
E-mail: ajperez@lawgmp.com
BIOMAT USA: Judge Won't Toss Class Action Over Privacy Violations
-----------------------------------------------------------------
Scott Holland at cookcountyrecord.com reports that a federal judge
has refused to dismiss a class action complaint accusing plasma
collection firms of violating a state biometrics privacy law.
In June 2020, attorneys with Naperville's Fish Law Firm filed the
lawsuit in Cook County Circuit Court against Biomat USA and
Talecris Plasma Resources. An amended complaint included Interstate
Blood Bank as a defendant; all three entities operate under the
same parent company, Grifols, based in Barcelona, Spain. The action
alleges the blood plasma centers in Chicago, the suburbs and
downstate violated the Illinois Biometric Information Privacy Act
in the use of fingerprint scanning technology to identify and track
donors and donations.
The complaint is similar to BIPA actions brought against other
plasma collecting firms like Biolife and Octapharma, both of which
recently ended litigation through multimillion dollar settlements.
But the Grifols companies, after removing the complaint to federal
court, asked U.S. District Judge Marvin Aspen to dismiss the
complaint, a motion he denied in an opinion filed Sept. 19.
Aspen's motion explains the procedural history, including a stay he
issued pending resolution of an Illinois First District Appellate
Court panel's consideration of Tims v. Black Horse Carriers, which
was to determine if statutory limitations on relevant BIPA claims
should be one or five years. In September 2021, the panel said the
five-year limit applies, a decision currently on appeal with the
Illinois Supreme Court.
After lifting the stay, Aspen dismissed the first amended complaint
for improper group pleading. The second amended complaint added
plaintiffs, proposed classes of more than 100 members against each
Grifols entity and suggested more than $5 million is at stake in
terms of liquidated damages.
Aspen then determined the plaintiffs do have standing to sue
because they alleged the plasma collectors failed to comply with
BIPA's guidelines on data retention schedules and didn't properly
destroy their biometric data.
In arguing for dismissal, the collectors said they complied with
U.S. Food and Drug Administration regulations for donor
identification, which obligated them to keep records for a decade.
BIPA, however, requires destruction within three years. But Aspen
agreed with the plaintiffs, who said the FDA allows but doesn't
require biometric data for donor identity verification, which means
the centers "can comply with both federal and Illinois law by
obtaining proof of identity and establishing a donor identification
system using photographic identification, a valid driver's license
or any other non-biometric means."
The ruling, however, does not address other cases in which
plaintiffs have argued that photos of people's faces, including
driver's license photos, also can qualify as biometric identifiers
subject to protection under BIPA.
Biomat and Talecris also said some of the plaintiffs signed written
waivers before presenting their fingerprints, but Aspen noted those
consent agreements don't provide the information BIPA requires to
establish informed consent to collect personal information. He also
rejected the argument a plasma collector qualifies as a health care
provider to establish a BIPA exemption and that the prints were
stored for health care treatment or used to validate scientific
testing.
"Nothing that we can infer from the Second Amended Complaint makes
plasma sellers 'patients' or plasma centers 'health care settings,'
" Aspen wrote. "Plasma donors are not 'under medical care or
treatment' by virtue of selling a component of their blood.
Plaintiffs nowhere allege that they had conditions that required
removing the plasma from their blood as a course of medical care or
treatment."
Aspen further refused to either guess the Supreme Court would
overturn the appellate ruling on Tims or, in the alternative, stay
the complaint pending that decision. One reason, he said, is
because at the time of the first stay there was only one named
plaintiff, and a different statutory limitation ruling might've
ended the entire complaint.
"That is no longer true, meaning two of the three putative classes
and two of the four individual plaintiffs must proceed regardless
of the outcome in the Illinois Supreme Court," Aspen wrote. "Thus,
even if the Illinois Supreme Court reverses, the issues will be
nearly as complex and burdensome as they are now."
Although Aspen denied the motion to dismiss, he granted their
motion for leave to file supplemental authority - specifically
citing a Sept. 8 opinion from U.S. District Judge Harry Leinenweber
in Svoboda v. Frames for America - gave them until Oct. 3 to answer
the second amended complaint and set a status hearing for Oct. 27.
Biomat has been represented in the case by attorneys Jason A.
Selvey and Julia S. Wolf, of the firm of Jackson Lewis P.C., of
Chicago.
Plaintiffs continue to be represented by attorneys David A. Fish
and Mara Baltabols, of the firm now known as Fish Potter Bolaños,
of Naperville. [GN]
BP EXPLORATION: Bid for Summary Judgment in McClendon Suit Granted
------------------------------------------------------------------
In the case, DOROTHY McCLENDON v. BP EXPLORATION & PRODUCTION, INC.
ET AL., SECTION: H, Civil Action No. 17-3379 (E.D. La.), Judge Jane
Triche Milazzo of the U.S. District Court for the Eastern District
of Louisiana grants the Motion for Summary Judgment filed by BP
Exploration & Production, Inc., BP America Production Co., BP
p.l.c., Halliburton Energy Services, Inc., Transocean Deepwater
Inc., Transocean Offshore Deepwater Drilling, Inc., and Transocean
Holdings, LLC.
The case is one among the "B3 bundle" of cases arising out of the
Deepwater Horizon oil spill. This bundle comprises "claims for
personal injury and wrongful death due to exposure to oil and/or
other chemicals used during the oil spill response (e.g.,
dispersant)." These cases were originally part of a multidistrict
litigation ("MDL") pending in the Eastern District of Louisiana
before Judge Barbier. During this MDL, Judge Barbier approved the
Deepwater Horizon Medical Benefits Class Action Settlement
Agreement, but the B3 plaintiffs either opted out of this agreement
or were excluded from its class definition. Subsequently, Judge
Barbier severed the B3 cases from the MDL to be reallocated among
the judges of the Court. This case was reassigned to Section H.
Ms. McClendon claims a myriad of medical conditions resulting from
continuous toxic exposure suffered after the Deepwater Horizon oil
spill. Specifically, she claims to suffer from "headaches, nausea,
fatigue, eye irritation and burning, watering eyes, nose bleeds,
breathing problems, abdominal pain and cramps, skin rashes and
irritation." The Plaintiff asserts claims for general maritime
negligence, negligence per se, and gross negligence with respect to
the spill and its cleanup.
Now before the Court is the Defendants' Motion for Summary
Judgment. To date, the Plaintiff has filed no opposition to the
Defendants' Motion.
The Defendants move for summary judgment on the ground that the
Plaintiff cannot prove that exposure to oil or dispersants was the
legal cause of her alleged injuries. They argue that she cannot do
so because she has produced no expert testimony to support her
claims, and in a toxic tort case such as this, expert testimony as
to causation is required. Having filed no opposition, the Plaintiff
provides no response to this argument.
In the case, the causal connection between exposure to oil or
dispersants and the Plaintiff's injuries is not within the common
knowledge of a layperson. In a toxic tort suit such as this one,
the plaintiff must present admissible expert testimony to establish
general causation as well as specific causation. The Plaintiff's
deadline for expert disclosures and reports was June 17, 2022. She
neither met this deadline nor moved for its extension.
Additionally, to date, she has failed to oppose the Defendants'
motion or put forth any evidence of causation. Therefore, the
Plaintiff cannot prove a necessary element of her claims against
the Defendants, and her claims must be dismissed.
For the foregoing reasons, Judge Milazzo grants the Defendants'
Motion for Summary Judgment and dismisses the case with prejudice.
A full-text copy of the Court's Sept. 13, 2022 Order & Reasons is
available at https://tinyurl.com/mr2dbs2 from Leagle.com.
BURLINGTON STORES: Misclassifies Asst. Store Managers, Suit Claims
------------------------------------------------------------------
Abraham Jewett at topclassactions.com reports that Burlington
Stores, Inc. misclassified assistant store managers at its
Burlington Coat Factory locations as exempt from overtime pay
despite having to perform work that makes them non-exempt, a new
class action lawsuit alleges.
Plaintiff Kim Payton-Fernandez claims Burlington failed to provide
overtime pay to its assistant store managers and other employees
holding comparable positions due to misclassifying them as exempt
under federal overtime laws.
Payton-Fernandez wants to represent a nationwide class of current
and former Burlington Coat Factory workers who worked more than 40
hours during a week without receiving overtime pay within the last
three years.
Payton-Fernandez says she regularly worked 50 to 55 hours per week
without receiving overtime pay while employed as an assistant store
manager at Burlington Coat Factory.
Payton-Fernandez claims not being paid overtime constituted wage
theft and violated the Fair Labor Standards Act (FLSA), which
requires companies to pay time-and-a-half for all hours worked over
40.
"Defendants' unlawful conduct, as described above, was willful or
in reckless disregard of the applicable wage and hour laws pursuant
to defendants' centralized, companywide policy, pattern and
practice of attempting to minimize labor costs by violating the
FLSA," the class action lawsuit states.
Assistant Store Managers Required To Do Non-Exempt Work
Payton-Fernandez argues she should not have been classified as
exempt from overtime pay due to her job requiring her to do
non-exempt work, such as stocking shelves, working the cash
register, building displays, cleaning and folding, among other
things.
"The primary job duties of Plaintiff and the members of the
Collective did not materially differ from the duties of Defendants'
non-exempt hourly paid employees, which included many duties that
were manual and non-exempt in nature," the class action lawsuit
states.
Further, Payton-Fernandez claims Burlington was aware that its
assistant store managers were performing non-exempt work but were
still unwilling to provide them with overtime pay as a way to save
money.
"Defendants knew that Plaintiff and other similarly situated
employees were performing the work of non-exempt employees and,
based on their actual job duties, Plaintiff and similarly situated
employees did not fall under any exemptions under the FLSA," the
class action lawsuit states.
Payton-Fernandez is demanding a jury trial and requesting
declaratory relief, an award of unpaid wages for all hours worked
over 40 and liquidated and punitive damages for herself and all
class members.
A similar class action lawsuit was filed last month by former
Sheraton Hotel employees who argue they were denied minimum wage
and tips they had earned.
The plaintiff is represented by Seth R. Lesser and Christopher M.
Timmel of Klafter Lesser LLP, and Michael A. Galpern of Javerbaum
Wurgaft Hicks Kahn Wikstrom and Sinins, P.C. [GN]
CAIN & ASSOCIATES: Modified Case Management Order Entered in Sake
------------------------------------------------------------------
In the class action lawsuit captioned as SAKE TN, LLC, and SEANACHE
HOMES, INC., for themselves and all others similarly situated, v.
TREY CAIN, KALI CAIN, CAIN & ASSOCIATES, PLLC, TENNESSEE TITLE &
ESCROW AFFILIATES, LLC, KNOX VALLEY PARTNERS, LLC, MORRIS FAMILY
HOLDINGS, LLC, PATRICK MOSS, IRA INNOVATIONS, LLC, MARY M. WESTER,
individually and as Trustee of the Mary M. Wester Revocable Trust,
MIKE TODD, and ALYCIA WHITE as Executrix of the Estate of William
J. Gulas, Case No. 3:21-cv-00108 (M.D. Tenn.), the Hon. Judge Aleta
A. Trauger entered an modified case management order as follows:
Event Current Date New Date
-- Plaintiffs' Class Cert. Aug. 27, 2022 Oct. 26, 2022
Motion:
-- Plaintiffs' Merits Sept. 14, 2022 Nov. 14, 2022
Expert Disclosure and
Report:
-- Defendants' Class Sept. 26, 2022 Nov. 25, 2022
Expert Report:
-- Plaintiffs' Class Oct.20, 2022 Dec. 19, 2022
Expert Report
-- Defendants' Merits Aug. 15, 2022 Nov. 14, 2022
Expert Disclosure
and Report:
-- Defendants' Response Oct. 30, 2022 Nov. 18, 2022
to Plaintiff’s Class
Certification Motion
Mediation Report Nov. 1, 2022 Jan. 2, 20231
Close of Discovery, Dec. 15, 2022 Feb. 1, 2023
including depositions
of all fact and expert
witnesses Motions for
Summary Judgment
Motions for Summary Jan. 15, 2023 March 1,2023
Judgment
A copy of the Court's order dated Sept. 6, 2022 is available from
PacerMonitor.com at https://bit.ly/3QXDzsS at no extra charge.[CC]
The Plaintiffs are represented by:
J. Brad Scarbrough, Esq.
Gregory H. Oakley, Esq.
BUILDLAW, PLC
4300 Sidco Dr., Suite 200
Nashville, TN 37204
Telephone: (615) 369-9996
E-mail: brad@build.law
greg@build.law
The Attorneys for IRA Innovations, LLC, are:
Richard N. Bien, Esq.
LATHROP GPM, LLP
2345 Grand Boulevard, Suite 2200
Kansas City, MO 64108
Telephone: (816) 292-2000
Email: Richard.bien@lathropgpm.com
- and -
John R. Tarpley, Esq.
LEWIS, THOMASON, KING, KRIEG &
WALDROP, P.C.
424 Church Street, Suite 2500
PO Box 198615
Nashville, TN 37219
Telephone: 615-259-1366
E-mail: jtarpley@lewisthomason.com
The Attorney for Defendant Patrick Moss, is:
Robert M. Burns, Esq.
HOWELL & FISHER, PLLC
3310 West End Avenue, Suite 550
Nashville, TN 37203
Telephone: (615) 921-5211
E-mail: rburns@howell-fisher.com
The Attorneys for the Defendants Mary M. Wester, individually and
as Trustee of the Mary M. Wester Revocable Trust, are:
Phillip G. Young, Jr., Esq.
THOMPSON BURTON, PLLC
1801 West End Avenue, Suite 1550
Nashville, TN 37203
Telephone: (615) 465-6008
E-mail: phillip@thompsonburton.com
CANOO INC: Faces Various Shareholder Suits in California Court
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Canoo Inc. disclosed in its Form 10-Q Report for the quarterly
period ended June 30, 2022, filed with the Securities and Exchange
Commission on August 8, 2022, that on April 2, 2021 and April 9,
2021, the company was named as a defendant in putative class action
complaints filed in California on behalf of individuals who
purchased or acquired shares of the company's stock during a
specified period. Through the complaint, plaintiffs are seeking,
among other things, compensatory damages.
Canoo, Inc. is a mobility technology company based in California
CANVAS ENERGY: Wake Sues Over Non Payment of Oil and Gas Proceeds
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WAKE ENERGY, LLC, individually and on behalf of all others
similarly situated, Plaintiff v. CANVAS ENERGY LLC, formerly known
as CHAPARRAL ENERGY, L.L.C., Defendant, Case No. 5:22-cv-00822-G
(W.D. OK., Sept. 16, 2022) is a class action concerning the
Defendant's willful and ongoing violations of Oklahoma's Production
Revenue Standards Act related to the interest owed on untimely
payments of proceeds derived from the sale of oil and gas
production to those legally entitled thereto.
According to the Plaintiff in the complaint, Oklahoma's PRSA
requires holders of proceeds derived from the sale of oil and gas
production, like the Defendant here, to pay interest on "proceeds
from the sale of oil or gas production or some portion of such
proceeds that are not paid prior to the end of the applicable time
periods provided by statute.
The PRSA imposes automatic interest on late payments. Compliance
with the PRSA is not optional, and the statute contains no demand
requirement before an owner is entitled to statutory interest. The
Defendant knows it is bound by statute to pay interest on late
payments, but has consistently ignored these obligations and
deliberately violated the Oklahoma PRSA, says the suit.
CANVAS ENERGY LLC provides exploration and production services. The
Company produces oil and natural gas. [BN]
The Plaintiff is represented by:
Brady L. Smith, Esq.
Harry "Skeeter" Jordan, Esq.
BRADY SMITH LAW, PLLC
One Leadership Square, Suite 1320
211 N. Robinson Ave.
Oklahoma City, OK 73102
Telephone: (405) 293-3029
Email: Brady@BLSmithLaw.com
Skeeter@BLSmithLaw.com
CARGILL INC: Court Modifies Briefing Schedule in Tavares Suit
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In the class action lawsuit captioned as MARIBEL TAVARES,
individually, and on behalf of other members of the general public
similarly situated and on behalf of other aggrieved employees
pursuant to the California Private Attorneys General Act, v.
CARGILL INCORPORATED, an unknown business entity; CARGILL MEAT
SOLUTIONS CORP, an unknown business entity; and DOES 1 through 100,
inclusive, Cargill, Incorporated et al., Case No.
1:18-cv-00792-ADA-SKO (E.D. Cal.), the Hon. Judge Sheila K. Oberto
entered an order modifying the prior briefing schedule and setting
the following dates and deadlines as follows:
1. The Plaintiff's motion for class certification shall be
filed on or before May 1, 2023;
2. The Defendants' opposition shall be filed on or before May
30, 2023;
3. The motion for class certification shall be heard on
August 2, 2023;
4. A status conference to set further scheduling dates is set
for January 18, 2024.
Cargill is a privately held American global food corporation based
in Minnetonka, Minnesota, and incorporated in Wilmington,
Delaware.
A copy of the Court's order dated Sept. 2, 2022 is available from
PacerMonitor.com at https://bit.ly/3BLuUFA at no extra charge.[CC]
The Plaintiff is represented by:
Stanley D. Saltzman, Esq.
Cody R. Kennedy, Esq.
Marissa A. Mayhood, Esq.
MARLIN & SALTZMAN, LLP
29800 Agoura Road, Suite 210
Agoura Hills, CA 91301
Telephone: (818) 991-8080
Facsimile: (818) 991-8081
E-mail: ssaltzman@marlinsaltzman.com
ckennedy@marlinsaltzman.com
The Defendant is represented by
Jason E. Barsanti, Esq.
COZEN O'CONNOR
501 W. Broadway, Suite 1610
San Diego, CA 92101
Telephone: (619) 234-1700
Facsimile: (619) 234-7831
E-mail: jbarsanti@cozen.com
CASINO QUEEN: Deadline to Reply to Hensiek Suit Dismissal Moved
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In the case, TOM HENSIEK, et al., Plaintiffs v. BD. OF DIRECTORS OF
CASINO QUEEN HOLDING CO., INC., et al., Defendants. BD. OF
DIRECTORS OF CASINO QUEEN HOLDING CO., INC., et al.,
Crossclaim/Third-Party Plaintiffs v. CHARLES BIDWILL, III, et al.,
Crossclaim/Third-Party Defendants. CHARLES BIDWILL, III, TIMOTHY J
RAND, Defendants/Counterclaimants, Crossclaim/Third Party
Plaintiffs v. TOM HENSIEK, et al.,
Counterclaim/Crossclaim/Third-Party Defendants, Case No.
20-cv-377-DWD (S.D. Ill.), Judge David W. Dugan of the U.S.
District Court for the Southern District of Illinois grants the
Joint Motion for Extension of Time filed by the
Defendants/Third-Party Plaintiffs.
The Third-Party Plaintiffs jointly move for an extension of their
response deadlines to motions to dismiss.
Now before the Court is the Joint Motion for Extension of Time
filed by Defendants/Third-Party Plaintiffs the Board of Directors
of Casino Queen Holding Co., Inc., the Administrative Committee of
the Casino Queen Employee Stock Ownership Plan, Jeffrey Watson, and
Robert Barrows (the "Casino Queen Defendants"), Charles Bidwill and
Timothy J. Rand (hereinafter "Bidwill and Rand", and sometimes
collectively referred to together with the Casino Queen Defendants
as the "Third-Party Plaintiffs").
On April 14, 2022, Plaintiffs Tom Hensiek, Jason Gill, and Lillian
Wrobel filed their Amended Class-Action Complaint for purported
ERISA violations against multiple parties, including The Casino
Queen Defendants, and Bidwill and Rand. On May 19, 2022, Bidwill
and Rand filed a motion to dismiss the claims asserted against them
in the Amended Complaint, arguing that those claims are time-barred
by the statute of repose in 29 U.S.C. Section 1113. This Motion to
Dismiss is still under advisement with the Court.
Also, on May 19, 2022, Bidwill and Rand filed a Third-Party
Complaint naming Philip B. Kenny as a Third-Party Defendant. They
assert contingent claims for contribution or indemnification
against Third-Party Defendant Phillip B. Kenny in the event they
are found liable to the Plaintiffs.
Likewise, on May 19, 2022, the Casino Queen Defendants also filed a
Third-Party Complaint, naming Phillip B. Kenny, James C. Kenny,
John E. Kenny, Patrick B. Kenny, and Joan Kenny Rose as Third-Party
Defendants. They also assert contingent claims for contribution or
restitution against the Third-Party Defendants in the event they
are found liable to the Plaintiffs.
On Aug. 15, 2022, the Third-Party Defendants moved to dismiss the
Third-Party Complaints. The Third-Party Plaintiffs now jointly move
for an extension of their response deadlines to those motions to
dismiss.
The Third-Party Plaintiffs seek to extend their response deadline
until 30 days after the resolution of the pending motion to dismiss
filed by Bidwill and Rand. They represent that counsel for the
Third-Party Defendants, Phillip B. Kenny, James C. Kenny, John E.
Kenny, Patrick B. Kenny, and Joan Kenny Rose, consent to their
request for an extension. They also argue that good cause exists to
extend their deadlines until after the resolution of Bidwill and
Rand's motion to dismiss because if the motion is granted, the
claims against Bidwill and Rand will be dismissed, and thus their
third-party claims against Third-Party Defendant Phillip B. Kenny
will likewise be resolved.
However, Judge Dugan observes that the Motion does not suggest how
the resolution of Bidwill and Rand's motion to dismiss would impact
the claims pending against the Casino Queen Defendants or those
third-party claims the Casino Queen Defendants assert against the
Third-Party Defendants. Indeed, a resolution in Bidwill and Rand's
favor would presumably have little, if any, effect on the claims
asserted against the Casino Queen Defendants in the Amended
Complaint, or the claims the Casino Queen Defendants now assert
against Third-Party Defendants Phillip B. Kenny, James C. Kenny,
John E. Kenny, Patrick B. Kenny, and Joan Kenny Rose in their
Third-Party Complaint.
Nevertheless, Judge Dugan observes that the Third-Party Plaintiffs
have consented to the proposed extension, and the Third-Party
Plaintiffs represent that the Motion will not be used to delay the
discovery process. Accordingly, he grants the Motion.
The Third-Party Plaintiffs, the Board of Directors of Casino Queen
Holding Company, Inc., the Administrative Committee of the Casino
Queen Employee Stock Ownership Plan, Jeffrey Watson, and Robert
Barrows, Charles Bidwill, and Timothy J. Rand will file their
responses to the motions to dismiss filed by Third-Party
Defendants, Phillip B. Kenny, James C. Kenny, John E. Kenny,
Patrick B. Kenny, and Joan Kenny Rose, 30 days after the entry of
an Order disposing of Rand and Bidwill's Motion to Dismiss.
A full-text copy of the Court's Sept. 13, 2022 Order is available
at https://tinyurl.com/ey778pdz from Leagle.com.
CHICAGO, IL: Court Denies Bid to Certify Classes in Williams Suit
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In the case, AMONTAE WILLIAMS, individually and as a representative
for all similarly situated persons; and DARRYL WILLIAMS,
individually and as a representative for all similarly situated
persons, Plaintiffs v. BOARD OF EDUCATION OF THE CITY OF CHICAGO;
THE DAVID LYNCH FOUNDATION; and the UNIVERSITY OF CHICAGO,
Defendants, Case No. 20 C 4540 (N.D. Ill.), Judge Matthew F.
Kennelly of the U.S. District Court for the Northern District of
Illinois, Eastern Division, denies the Plaintiffs' motion to
certify various classes.
Amontae and Darryl Williams have sued the Board of Education of the
City of Chicago, the David Lynch Foundation, and the University of
Chicago, on behalf of a putative class for violations of the
Establishment Clause of the federal constitution and the Illinois
Religious Freedom Restoration Act.
Amontae Williams was a student at Bogan Computer Technical High
School in Chicago from fall 2017 until he graduated in spring 2019,
and Darryl Williams is his father. Bogan was one of eight schools
that implemented the Quiet Time program between 2015 and 2019.
The Defendants were involved in implementing Quiet Time in Bogan
and other Chicago schools. The Foundation created the Quiet Time
program, the University conducted a research study evaluating its
effects, and the Board permitted it to be incorporated into the
schools' schedules.
Quiet Time involved two fifteen-minute periods of quiet activity
during each school day, and some participating students could learn
Transcendental Meditation as part of the program. Only those
students who learned Transcendental Meditation and participated in
the training were present for a "Puja" initiation ceremony. During
the initiation, instructors placed items in front of a painting of
an influential teacher of Transcendental Meditation and spoke in
Sanskrit for approximately four minutes. The instructors also gave
students a "mantra" and instructed them to repeat it while
meditating. The parties dispute whether the mantra was a
meaningless sound or a Sanskrit word of religious significance.
Students who did not learn Transcendental Meditation were neither
present for the ceremony nor given a mantra.
On occasion, Transcendental Meditation instructors would come to
classrooms and lead the students through a meditation. Leading a
meditation involved telling the students to think of their mantra
and ringing a bell to let students know when to start or stop
meditating. Students who did not learn Transcendental Meditation
were in the classrooms during the instructor-led meditations, but
they were not required to meditate and could engage in other quiet
activities during that time. Chicago Public Schools teachers would
sometimes lead the meditations when instructors were not present.
Amontae began participating in Quiet Time in October 2017, but no
students at Bogan meditated until Transcendental Meditation
instructors came to the school during the 2018-19 academic year.
Amontae was not present for any initiation ceremonies or
instructor-led meditations while he was a minor. He turned eighteen
in September 2018, signed a consent form in early October, and
began learning Transcendental Meditation in mid-October. After
completing four training sessions, Amontae sporadically practiced
Transcendental Meditation during Quiet Time until spring 2019.
Amontae is now 21 years old.
The Plaintiffs retained counsel and brought the suit in October
2020. The legal services agreement between Amontae and his counsel
states that Amontae "grants the Steering Committee authority to
make final litigation decisions on behalf of the Client." The
agreement also states that the Steering Committee is "the Client's
primary avenue of communication with the law firm" and that the
committee will consist of two of Amontae's attorneys -- one of whom
is the proposed class counsel -- and "other adult followers of
Jesus who are parents of children in the Chicago Public Schools or
otherwise have a stake in the litigation." here is an option in the
agreement for the client to join the Steering Committee, but
Amontae did not select that option.
Amontae testified during his deposition that he was not a member of
the committee, did not participate in its decisions, did not know
who was on the committee other than his counsel, and did not know
how often the committee made final litigation decisions for him. In
response to defense counsel's questions during the deposition,
proposed class counsel instructed Amontae, "Don't answer questions
about what the committee has decided for you."
The legal services agreement also states that it is the policy and
practice of the Plaintiffs' counsel "to recommend denial of any
offer of settlement that does not include recovery which the Firm
considers adequate of the attorney's fees, costs, and expenses the
Firm has incurred." During his deposition, Amontae testified that
he understood the clause to mean his counsel would recommend denial
of any settlement offers that lacked sufficient attorneys' fees and
costs—including offers that are in the best interests of Amontae
and his proposed classes.
The Plaintiffs move to certify two classes. The first proposed
class includes all students who participated in the Quiet Time
program between 2015 and 2019; the second includes all parents,
legal guardians, or other persons acting in loco parentis for any
student who participated in Quiet Time while a minor. They also
propose two subclasses within the proposed student class: (1) all
students who participated in Transcendental Meditation training,
and (2) all students who participated in the Quiet Time program but
not Transcendental Meditation training.
In order for the case to proceed as a class action, the Williamses
must show that their proposed classes satisfy all the requirements
of Rule 23, which sets out the criteria for class certification.
First, under Rule 23(a), a putative class must satisfy four
requirements: numerosity, commonality, typicality, and adequacy of
representation. Rule 23(a) requires the class to be so numerous
that joinder of all members is impracticable; there are common
questions of law or fact; the representatives' claims are typical
of those of the class; and the representatives fairly and
adequately protect the interests of the class.
Second, the proposed class must fall within one of the three
categories in Rule 23(b). The Plaintiffs argue for certification
under Rule 23(b)(1)(A) and Rule 23(b)(3). Rule 23(b)(1)(A) applies
when there is a risk of "inconsistent or varying adjudications with
respect to individual class members that would establish
incompatible standards of conduct for the party opposing the
class." Rule 23(b)(3) requires finding "that the questions of law
or fact common to class members predominate over any questions
affecting only individual members, and that a class action is
superior to other available methods for fairly and efficiently
adjudicating the controversy."
The Plaintiffs propose a class of all students who participated in
the Quiet Time program -- and in the alternative, various
subclasses -- with Amontae as the class representative. As a
result, even if these classes satisfy the other requirements of
Rule 23(a) or Rule 23(b)(3), the motion for class certification
fails if Amontae cannot adequately represent the proposed classes.
The Defendants contend that Amontae is not an adequate class
representative for three reasons: his lack of credibility, his
purportedly minimal knowledge about the case, and his lack of
control over the litigation.
Judge Kennelly finds that the Plaintiffs are unable to establish by
a preponderance of the evidence that Amontae is adequate in this
regard. The legal services agreement between him and his counsel is
clear: Amontae has surrendered his responsibility to make final
litigation decisions to a "Steering Committee" composed of proposed
class counsel and other individuals unknown to the Court, not
including Amontae himself. Amontae's lack of any knowledge about
the decisions, operations, or membership of the committee to which
he has delegated control of the litigation further underscores his
inability to take an "active and honest and attentive" role in the
litigation or be more than just a "placeholder for the attorneys
driving the case."
By excluding Amontae from the Steering Committee's membership while
subjecting him to its decisions, the legal services agreement has
impermissibly shifted his duties as named class plaintiff to his
counsel, deprived him of any means of monitoring his counsel's
conduct, and reduced him to little more than a figurehead. The
Plaintiffs fail to meaningfully address this issue in their reply
brief. Given that the Plaintiffs' counsel has so little trust in
his own client's abilities that he created a committee to remove
decision-making authority from that client, there is no basis for
the Court to find the named Plaintiff "trustworthy enough to
protect the interests of the class."
For all of these reasons, Judge Kennelly concludes that Amontae is
an inadequate class representative. He denies his motion for class
certification on this basis and thus need not address whether the
proposed student classes satisfy the other requirements of Rule
23(a) or Rule 23(b).
Judge Kennelly denies Darryl's motion for class certification, as
it turns out that Darryl lacks standing to bring his claim. The
problem is that none of the events giving rise to Darryl's claim
occurred before Amontae's eighteenth birthday. The parties do not
dispute that when Amontae began learning Transcendental Meditation,
he was already a legal adult. During his deposition, Amontae
testified that he was present for an initiation ceremony in October
2018, after he had turned eighteen a month earlier. To the extent
that Darryl's claim is based on either the Transcendental
Meditation initiation or instructor-led meditation, it must be
dismissed, and his motion for class certification must be denied
for lack of standing. Darryl contends that he has standing despite
these facts, but none of his arguments are persuasive.
Judge Kennelly therefore denies Darryl's motion for class
certification and dismisses his section 1983 claim for lack of
standing.
For the foregoing reasons, Judge Kennelly denies the Plaintiffs'
motions for class certification and dismisses Darryl's section 1983
claim for lack of standing.
A full-text copy of the Court's Sept. 13, 2022 Memorandum Opinion &
Order is available at https://tinyurl.com/bdf8xmxm from
Leagle.com.
CHRISTIAN CENTRE: Faces Sexual Abuse Class-Action Lawsuit
---------------------------------------------------------
Nicole Alcindor at christianpost.com reports that three women have
filed a class-action lawsuit against a Christian school and
affiliated church in Canada, alleging that a former Sunday school
teacher abused them in the 1990s and that administrator covered it
up.
The women claim that administrators at Christian Centre Academy and
Saskatoon Christian Centre church, now known as Legacy Christian
Academy and Mile Two Church, knew about alleged abuse that they
claim was done to them by a former school employee, Nathan
Schultz.
Schultz is one of the over 20 defendants named in the proposed
$25-million class-action lawsuit claiming that multiple officials
at Christian Centre Academy and Saskatoon Christian Centre were
sexually abusive.
The complaint alleges that Schultz, who no longer works at the
school, abused the students when they were 4 to 7 years old, and
that school and church officials allegedly hid what transpired.
The allegations, which were reported to police, have not yet been
proven in court, nor has a statement of defense been filed,
according to a CBC News report.
Schultz and his parents are all named in the suit, with the abuse
allegedly occurring when his father was director of the school and
both of his parents were elders at the church.
Caitlin Erickson, one of the plaintiffs, told CBC that she had
attended the school and church for 13 years until 2005. Erickson
said she was sexually abused by Schultz when she was as young as 6.
Schultz, a graduate of the school and a Sunday school teacher,
would have been 16 or 17 years old at the time.
Erickson recalled that when children's church took place on
Sundays, Schultz was "always the guy that would volunteer to take
the girls to the bathroom."
Erickson alleged that, on three occasions, Schultz took her to a
nearby equipment room first and urged her to reach into his pants
pocket.
On one of the occasions, he pressured her to do so after she said
no multiple times. Erickson claimed that Schultz had cut out the
pocket so that she touched his penis instead.
"After that, I would not go to the bathroom when I was at church,"
Erickson told CBC.
Earlier this year, 18 former students of Legacy Christian Academy
filed criminal abuse complaints against the school and Mile Two
Church, alleging that they were coerced into exorcisms and suffered
corporal punishment at the hands of school officials.
One of the students, Christina Hutchinson, told Global News about
an experience when she was 8 and attended Christian Centre Academy.
She allegedly endured spankings and treatment, which she said
mirrored an "exorcism."
Hutchinson recounted that she and other students were asked to
recite a morning prayer in front of a school instructor. She
refused to join because she was too nervous.
"The teacher at the time seemed to think that that meant I had a
demon, so she would keep me in at break times and rock me in her
lap while she spoke in tongues," Hutchinson said.
"It was an exorcism in the sense that she was trying to drive a
demon out of me. I didn't know what she was doing, and I didn't
have any control over it."
The church and the school sent a statement to Global News
expressing remorse over the reported incidents, noting that "the
people that are accused of these actions are no longer here or
affiliated with us in any way."
"We are all heartbroken to learn the stories of some former
students about their experiences from over 15 years ago. The
current staff and leadership are hearing some of these stories for
the first time, and we condemn any acts of abuse that previous
leaders committed," they stated. [GN]
CLUB 360: Hearing on Summary Judgment Bid Set for Oct. 4
--------------------------------------------------------
In the class action lawsuit captioned as EDWIN BAZARGANFARD and
BARAK GOLAN, on behalf of themselves and all others
similarly situated, et al v. CLUB 360 LLC; ABC FINANCIAL SERVICES,
LLC; JEHANGIR MEHER; and DOES 1-10, Case No. 2:21-cv-02272-CBM-PLA
(C.D. Cal.), the Hon. Judge Consuelo B. Marshall entered an order
granting stipulation to continue hearing on plaintiffs' motion to
amend and motion class certification after hearing the defendants'
pending motion for summary judgment, as follows:
1. The Hearing on Defendants' Motion for Summary Judgment
will remain set for October 4, 2022 at 10:00 a.m.;
2. The Hearing on Plaintiffs' Motion for Leave To Amend is
continued to October 25, 2022 at 10:00 a.m.
3. The Hearing on Plaintiffs' Motion for Class Certification
is continued to January 10, 2023 at 10:00 a.m.;
4. The Defendants' Opposition to Plaintiffs' Motion for Class
Certification shall be filed by October 18, 2022;
5. To the extent the Court grants Plaintiffs' Motion for
Leave to Amend, the Plaintiffs are to file an amended
Motion for Class Certification within one week of the
filing of the Second Amended Complaint.
6. The Defendant's Opposition to Class Certification shall be
due by November 21, 2022 and Plaintiffs' reply shall be
due November 30, 2022.
Club 360 offers personal training, fitness classes, boxing,
physiotherapy and sports massage.
A copy of the Court's order dated Sept. 2, 2022 is available from
PacerMonitor.com at https://bit.ly/3RTRcuh at no extra charge.[CC]
COAST DENTAL: Florida Court Dismisses 2 Claims in Davis TCPA Suit
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In the case, AMANDA DAVIS, individually and on behalf of all others
similarly situated, Plaintiff v. COAST DENTAL SERVICES, LLC,
Defendant, Case No. 8:22-cv-941-KKM-TGW (M.D. Fla.), Judge Tom
Barber of the U.S. District Court for the Middle District of
Florida, Tampa Division, grants the Defendant's Motion to Dismiss
Counts I and II.
In a putative class action, Davis alleges that she received an
unsolicited automated text message from Coast Dental in violation
of the federal Florida Telephone Solicitation Act (FTSA) and the
Telephone Consumer Protection Act (TCPA). Coast Dental Services
moves to dismiss both claims, arguing that Davis fails to state a
plausible FTSA or TCPA claim, and that Section 8(a) of the FTSA is
unconstitutional under the First Amendment, Fourteenth Amendment,
and the Dormant Commerce Clause.
Davis brings a class action against the Defendant, alleging
violations of the TCPA and Florida's similar statute, the FTSA
based on her receipt of an unsolicited text message she received on
Jan. 27, 2022. Davis alleges that Coast Dental used a "computer
software system that automatically selected and dialed" her
telephone number to advertise dental services. A screenshot of the
message indicates that the message is from +1 (850) 920-7342 and
reads: "Introducing Online Booking from Coast Dental. Whether you
have a dental emergency, need a dental check-up, or want to
transform your smile, you can count on us to keep your smile
healthy and beautiful. Schedule Your Appointment Online Today!
https://www.coastdental.com/appointments/appointment-request Sent
via NexHealth To unsubscribe, reply STOP."
Ms. Davis alleges that she never provided Coast Dental with her
written consent for them to contact her by phone. On March 14,
2022, she filed a complaint in state court in Hillsborough County,
Florida alleging: (1) a violation of the FTSA for making a
telephonic sales call from an automated system without prior
express written consent and (2) a violation of Section 8(a) of the
TCPA for failing to disclose the name of the individual caller.
Coast Dental removed the action to federal court on April 21, 2022
and moved to dismiss the complaint for failure to state a claim on
May 13, 2022. In response, Davis filed an Amended Complaint on June
17, 2022, which Coast Dental moved to dismiss on June 1, 2022.
In its motion to dismiss, Coast Dental argues that Davis fails to
state plausible facts sufficient to allege that it used an
"automated system" to send the unsolicited text message to a
"residential" telephone line and that section 8(a) of the FTSA is
unconstitutionally vague, restrictive of free speech, and violative
of the dormant commerce clause. Coast Dental further argues that
Davis fails to state a claim under the TCPA because the regulation
Davis pleads (47 C.F.R. Section 64.1200(d)(4)) does not provide a
private cause of action.
Ms. Davis argues that Section 8(a) of the FTSA survives
intermediate scrutiny as a proper regulation of commercial speech,
is not vague, does not improperly discriminate against or burden
out of state businesses, and that she pleaded sufficient facts to
demonstrate that the unsolicited text message was sent as part of
an automated mass marketing campaign. While not raised in the
motions, the Court also considers pleading standards, and the
Amended Class Action Complaint's sufficiency under the Federal
Rules.
Judge Barber finds that Davis fails to allege sufficient facts to
plead a plausible violation of the FTSA as a matter of law. He says
her allegation is conclusory and he need not accept it as true. The
fact that Coast Dental sent Davis an unsolicited text message is
consistent with the idea that it used an automated machine to send
advertisements en masse. However, these facts are also consistent
with Coast Dental hiring a marketing firm to send individual
messages from a personal cell phone in full compliance with the
FTSA. From the facts pleaded, it is merely possible that it
violated the FTSA, but not plausible as the pleading standard
requires. Without more, Davis's FTSA claim fails.
Ms. Davis alleges in her Count II heading a "violation of 47 U.S.C.
Section 227(b)." She goes on to cite only a regulation and 47
U.S.C. Section 227(c) in the paragraphs that follow. Although she
cites Section 227(c), no allegation of receiving multiple calls or
text messages within the statutory period appears in her Amended
Class Action Complaint. Thus, Davis does not make clear whether she
is pursuing an action under 47 U.S.C. Section 227(b) or Section
227(c).
According Judge Barber, mixing causes of action and failing to
separate them into separate counts is problematic because it
muddles which facts go to which claims and prevents each claim from
standing on its own merit before the Court. This is especially true
in the instant case where each section of the statute provides a
separate cause of action. Accordingly, the proper course of action
is to strike a shotgun pleading and allow an opportunity to remedy
the deficiencies.
Judge Barber concludes that Davis alleges two claims, one state and
one federal. The first fails to state a plausible claim under the
FTSA and the second fails to clearly specify which cause of action
she pleads under the TCPA. Because the pleadings are deficient and
fail to state a claim under the FTSA or the TCPA, Judge Barber does
not reach the constitutional issues raised by the parties.
Accordingly, the Defendant's Motion to Dismiss Count I of Davis's
complaint is granted. Davis' claim is dismissed without prejudice.
The Defendant's Motion to Dismiss Count II of Davis' complaint is
granted. Her claim is stricken with leave to amend.
The Plaintiff's amended complaint was due Sept. 26, 2022. Ten days
after the Defendant answers any amended complaint, the parties are
directed to file an amended case management report.
A full-text copy of the Court's Sept. 13, 2022 Order is available
at https://tinyurl.com/5vt5hfba from Leagle.com.
COGIR MANAGEMENT: De Alba Labor Suit Removed to E.D. California
---------------------------------------------------------------
The case styled XENIA CESILIA DE ALBA, individually and on behalf
of all others similarly situated, Plaintiff v. COGIR MANAGEMENT USA
INC.; WELLTOWER COGIR TENANT, LLC; and DOES 1 through 20,
inclusive, Defendants, Case No. STK-CV-UOE-2022-5540, was removed
from the Superior Court of the State of California for the County
of San Joaquin, to the U.S. District Court for the Eastern District
of California on Sept. 7, 2022.
The Clerk of Court for the Eastern District of California assigned
Case No. 2:22-at-00924 to the proceeding.
The Plaintiff's complaint asserts the following nine causes of
action: (1) failure to pay minimum wages; (2) failure to pay
overtime compensation; (3) failure to provide meal periods; (4)
failure to authorize and permit rest breaks; (5) failure to
reimburse necessary business expenses; (6) failure to provide
accurate itemized wage statements; (7) failure to timely pay wages
during employment; (8) failure to pay all wages due upon separation
of employment; and (9) violation of the California Business and
Professions Code.
Cogir Management USA Inc. is a senior living facility based in
California.[BN]
The Defendant is represented by:
Diane Marie O'Malley, Esq.
Winston K. Hu, Esq.
Maribel Lopez, Esq.
HANSON BRIDGETT LLP
25 Market Street, 26th Floor
San Francisco, CA 94105
Telephone: (415) 777-3200
Facsimile: (415) 541-9366
E-mail: domalley@hansonbridgett.com
whu@hansonbridgett.com
mlopez@hansonbridgett.com
COLORADO CORING: Parties Seek More Time to Respond to Motions
-------------------------------------------------------------
In the class action lawsuit captioned as THOMAS SNIDER, on behalf
of himself and all other plaintiffs similarly situated, known and
unknown, v. COLORADO CORING & CUTTING, INC., a Colorado
Corporation; RICK GONZALEZ, individually; and REAL CONCRETE AND
CORING, INC., a Colorado Corporation d/b/a COLORADO CORING &
CUTTING, Case No. 1:22-cv-01289-RMR-SKC (D. Colo.), the Parties
file unopposed motion for extensions of time to respond to pending
motions.
On August 12, 2022, the court granted the Joint Motion for
Extension of Time. The Defendants' Response to the Plaintiff's
Amended Motion to Enter and Continue is due September 1, 2022 and
Plaintiff's Reply in support of his Amended Motion for Class
Certification is due September 2, 2022.
The Parties continue to have settlement discussions but have not
yet reached a resolution. On September 1, 2022, the Plaintiff
provided the Defendants with a revised class settlement framework
proposal. Defendants are still considering that proposal, and will
advise Plaintiff no later than September 8, 2022, whether they will
agree to move forward with Plaintiff's proposal.
On May 24, 2022, the Plaintiff filed his class and collective
action complaint on behalf of himself and all other past and
present employees of the Defendants.
The Plaintiff seeks unpaid overtime wages and additional damages on
behalf of himself and other allegedly similarly situated
employees.
Shortly after filing the Complaint, the Plaintiff moved for
collective and class certification pursuant to 29 U.S.C. section
216(b) and Fed. R. Civ. P. 23. See Plaintiff's Amended Motion for
Stage-One Conditional Certification of Collective Action Pursuant
To 29 U.S.C. § 216(b) and Motion for Class Certification Under
Fed. R. Civ. P. 23.
A copy of the Parties' motion dated Sept. 1, 2022 is available from
PacerMonitor.com at https://bit.ly/3QITP0y at no extra charge.[CC]
The Plaintiff is represented by:
Samuel D. Engelson, Esq.
John William Billhorn, Esq.
BILLHORN LAW FIRM
7900 E. Union Avenue, Suite 1100
Denver, CO 80237
E-mail: sengelson@billhornlaw.com
jbillhorn@billhornlaw.com
The Defendants are represented by
Susan S. Sperber, Esq.
Abby C. Harder, Esq.
LEWIS ROCA ROTHGERBER CHRISTIE LLP
1601 19th Street, Suite 1000
Denver, CO 80202
E-mail: ssperber@lewisroca.com
aharder@lewisroca.com
COLOURPOP COSMETICS: Class Action Says Makeup Not Fit For Use
-------------------------------------------------------------
John O'Brien at Legal Newsline reports that eye makeup from
ColourPop Cosmetics contains harmful chemicals, a new class action
lawsuit alleges.
Plaintiff Kacey Wilson and her lawyers at Bursor & Fisher sued the
company on Sept. 12 in California federal court, alleging makeup
that can be applied around the eye area features color additives
that are designated by the Food and Drug Administration as unsafe
for that part of the body.
"The products are thus adulterated and misbranded under the federal
Food, Drug and Cosmetics Act," the suit says. "Accordingly, it is
unlawful for Defendant to advertise, promote, market or sell
ColourPop Eye Makeup."
The color additives have names like FD&C Red No. 4. The complete
list can be seen in the complaint here.
The lawsuit doesn't allege Wilson suffered any harm to her eye but
rather complains she was duped into paying for makeup that wasn't
as safe as it was marketed as. [GN]
COMSTAR LLC: Woltag Suit Removed to D. Massachusetts
----------------------------------------------------
The case styled as Robert Woltag, Michael Frechette, individually
and on behalf of all others similarly situated v. Comstar, LLC,
Case No. 2277CV00641 was removed from the Essex County Superior
Court, to the U.S. District Court for District of Massachusetts on
Sept. 16, 2022.
The District Court Clerk assigned Case No. 1:22-cv-11527-PBS to the
proceeding.
The nature of suit is stated as Other Personal Property.
Comstar -- https://comstar.biz/ -- specializes in internet
marketing, web design, e-commerce, CMS, hosting, app and web
development solutions.[BN]
The Plaintiffs are represented by:
Gary M Klinger, Esq.
MASON LIETZ & KLINGER LLP - CHICAGO, IL
227 W Monroe St., Ste. 2100
Chicago, IL 60606
Phone: (312) 283-3814
Fax: (773) 496-8617
Email: gklinger@milberg.com
- and -
Randi A. Kassan, Esq.
MILBERG COLEMAN BRYSON PHILLIPS GROSSMAN, PLLC
100 Garden City Plaza, Suite 500
Garden City, NY 11530
Phone: (516) 741-5600
Fax: (516) 741-0128
Email: rkassan@thesandersfirm.com
The Defendant is represented by:
Sean Andres Rapela, Esq.
FREEMAN MATHIS & GARY
60 State Street, Suite 600
Boston, MA 02109
Phone: (617) 963-5975
Fax: (833) 226-4728
Email: sean.rapela@fmglaw.com
CONSOLIDATED NUCLEAR: Extension of Class Cert Bid Deadline Sought
-----------------------------------------------------------------
In the class action lawsuit captioned as JAMES MYERS, JAMES YOUNG,
and DOUGLAS MESSERLI, and all those similarly situated, v.
CONSOLIDATED NUCLEAR SECURITY, LLC, Case No. 3:20-cv-142-KAC-JEM
(E.D. Tenn.), the Plaintiffs ask the Court to enter an order
enlarging the deadline for class certification to Oct. 27, 2022.
On August 4, 2022, the Court entered a scheduling order providing
for a motion for class certification deadline of September 23,
2022.
Consolidated Nuclear is an American federal contractor. They are
one of the 100 largest federal contractors in the United States.
A copy of the Plaintiffs' motion dated Sept. 6, 2022 is available
from PacerMonitor.com at https://bit.ly/3QRzy97 at no extra
charge.[CC]
The Plaintiffs are represented by:
Justin S. Gilbert, Esq.
GILBERT LAW, PLC
100 W. Martin Luther King Blvd, Suite 1067
Chattanooga, TN 37402
Telephone: (423) 756-8203
E-mail: justin@schoolandworklaw.com
- and -
Ronald A. Rayson, Esq.
LAW OFFICE OF RONALD A. RAYSON
P.O. Box 10346
Knoxville, TN 37939-5890
Telephone: (865) 368 5890
Facsimile: (865) 971 4355
E-mail: Ron@raysonlaw.com
COOPERATIVE REGIONS: Takahashi-Mendoza Suit Removed to N.D. Calif.
------------------------------------------------------------------
The case styled AMBER TAKAHASHI-MENDOZA, an individual, on behalf
of herself and all others similarly situated, Plaintiff v.
COOPERATIVE REGIONS OF ORGANIC PRODUCER POOLS D/B/A ORGANIC VALLEY,
a Wisconsin Corporation, Defendant, Case No. 22CV014564, was
removed from the Superior Court of the State of California, County
of Alameda, to the U.S. District Court for the Northern District of
California on Sept. 7, 2022.
The Clerk of Court for the Northern District of California assigned
Case No. 4:22-cv-05086-JST to the proceeding.
The Plaintiff asserts claims under California's Consumer Legal
Remedies Act and the Unfair Competition Law after the Defendant
made "false and misleading" representations, such as "Humane Animal
Practices," on the package labeling of the Defendant's Organic
Valley brand dairy products.
Cooperative Regions of Organic Producer Pools, d/b/a Organic
Valley, supplies food products. The Company offers milk, sour
cream, soy, butter, cheese, juices, fruits, vegetables, eggs,
meats, and poultry products.[BN]
The Defendant is represented by:
David A. Belcher, Esq.
FAEGRE DRINKER BIDDLE & REATH LLP
1800 Century Park East, Suite 1500
Los Angeles, CA 90067
Telephone: (310) 203-4000
Facsimile: (310) 229-1285
E-mail: david.belcher@faegredrinker.com
CYBEROPTICS CORP: Juan Monteverde Investigates Securities Suit
--------------------------------------------------------------
Juan Monteverde, founder and managing partner of the class action
firm Monteverde & Associates PC (the "M&A Class Action Firm"), a
national securities firm rated Top 50 in the 2018-2021 ISS
Securities Class Action Services Report and headquartered at the
Empire State Building in New York City, is investigating:
CyberOptics Corp. (CYBE), relating to its proposed acquisition by
Nordson Corp. Under the terms of the agreement, CYBE shareholders
are expected to receive $54.00 in cash per share they own. Click
here for more information:
https://www.monteverdelaw.com/case/cyberoptics-corp. It is free and
there is no cost or obligation to you.
About Monteverde & Associates PC
We are a national class action securities litigation law firm that
has recovered millions of dollars and is committed to protecting
shareholders from corporate wrongdoing. We were listed in the Top
50 in the 2018-2021 ISS Securities Class Action Services Report.
Our lawyers have significant experience litigating Mergers &
Acquisitions and Securities Class Actions. Mr. Monteverde is
recognized by Super Lawyers as a Rising Star in Securities
Litigation in 2013, 2017-2019, an award given to less than 2.5% of
attorneys in a particular field. He has also been selected by
Martindale-Hubbell as a 2017-2021 Top Rated Lawyer. Our firm's
recent successes include changing the law in a significant victory
that lowered the standard of liability under Section 14(e) of the
Exchange Act in the Ninth Circuit. Thereafter, our firm
successfully preserved this victory by obtaining dismissal of a
writ of certiorari as improvidently granted at the United States
Supreme Court. Emulex Corp. v. Varjabedian, 139 S. Ct. 1407 (2019).
Also, in 2019 we recovered or secured six cash common funds for
shareholders in mergers & acquisitions class action cases.
If you own common stock in any of the above listed companies and
wish to obtain additional information and protect your investments
free of charge, please visit our website or contact Juan E.
Monteverde, Esq. either via e-mail at jmonteverde@monteverdelaw.com
or by telephone at (212) 971-1341. [GN]
DATA STREAM: Emir Sues Over Field Technicians' Unpaid Overtime
--------------------------------------------------------------
ABDEL EMIR, and other similarly situated individuals, Plaintiff(s)
v. DATA STREAM MOBILE TECHNOLOGIES, INC. and SEAN LEE, Defendants,
Case No. 0:22-cv-61665-XXXX (S.D. Fla., Sept. 7, 2022) seeks to
recover money damages from the Defendants for unpaid overtime wages
pursuant to the Fair Labor Standards Act.
The Plaintiff was employed by the Corporate Defendant as a field
technician from approximately June 4, 2021, through December 31,
2021. When Plaintiff worked for the Defendants, he worked
approximately 50 hours per week on average. However, the Defendants
did not pay Plaintiff time and one half for hours that he worked in
excess of 40 per week. The Defendants did not pay Plaintiff any
overtime, says the suit.
Data Stream Mobile Technologies, Inc. is a telecommunications
service provider in Miramar, Florida.[BN]
The Plaintiff is represented by:
Julisse Jimenez, Esq.
R. Martin Saenz, Esq.
SAENZ & ANDERSON, PLLC
20900 NE 30th Avenue, Ste. 800
Aventura, FL 33180
Telephone: (305) 503-5131
Facsimile: (888) 270-5549
E-mail: julisse@saenzanderson.com
msaenz@saenzanderson.com
DIGNITY HEALTH: Loses Partial Summary Judgment Bid v. Van Bebber
----------------------------------------------------------------
In the class action lawsuit captioned as ROBERT VAN BEBBER, on
behalf of himself and all others similarly situated and the general
public, v. DIGNITY HEALTH d/b/a MERCY MEDICAL CENTER -- MERCED, and
DOES 1 to 100, Case No. 1:19-cv-00264-ADA-EPG (E.D. Cal.), the Hon.
Judge Dale Alan Drozd entered an order denying the defendant's
motion for partial summary judgment as follows:
-- The Defendant's motion for summary judgment is denied in
its entirety;
-- The Clerk of the Court is directed to now reassign this
case to U.S. District Judge Ana I. deAlba and the parties
are advised that all future filings in this case shall bear
the new case number of 1:19-cv-00264-ADA-EPG; and
-- The parties are directed to contact Courtroom Deputy Mamie
Hernandez at (559) 499-13 5652, or
MHernandez@caed.uscourts.gov, within fourteen days of
service of this order regarding the rescheduling of the
Final Pretrial Conference and Jury Trial in this action.
This is a wage and hour class action suit stemming from various
alleged state labor law violations by Dignity Health, an acute care
hospital in Merced, California.
The Plaintiffs are former Dignity Health employees who were
employed by the defendant for at least some of the class period,
which covers the period from July 13, 2013 to September 8, 2021,
the date of the class certification order.
Throughout the class period, the defendant employed a rounding
policy pursuant to which all employee timeclock entries were
rounded either up or down to the nearest quarter-hour. Except for
one entry that demonstrated a 65-minute rounding window, no
individual employee time entry was rounded by more than seven
minutes either up or down.
The Plaintiffs have asserted the following causes of action in
their second amended complaint:
1. violations of California Business and Professions Code
section 17200;
2. unpaid wages and penalties pursuant to California Labor
Code sectionsection 218, 226, 510, 511, 1194, and 1998
(i.e. overtime);
3. failure to pay all wages due to illegal rounding;
4. failure to provide 3 meal breaks;
5. failure to provide accurate itemized wage statements
pursuant to California Labor Code section 226;
6. violations of the Private Attorneys General Act
(California Labor Code section 2698–2699);
7. failure to provide rest periods; and
8. failure to pay wages of terminated or resigned employees.
Dignity Health is a California-based not-for-profit public-benefit
corporation that operates hospitals and ancillary care facilities
in three states.
A copy of the Court's order dated Sept. 6, 2022 is available from
PacerMonitor.com at https://bit.ly/3BQAre0 at no extra charge.[CC]
DOLLAR GENERAL: Griffith Labor Suit Removed to W.D. Pennsylvania
----------------------------------------------------------------
The case styled MELISSA M. GRIFFITH, individually and on behalf of
all others similarly situated v. DOLLAR GENERAL CORPORATION and
DOLGENCORP, LLC, Case No. 10656-2022, was removed from the Court of
Common Pleas for Lawrence County, Pennsylvania, to the U.S.
District Court for the Western District of Pennsylvania on
September 14, 2022.
The Clerk of Court for the Western District of Pennsylvania
assigned Case No. 2:22-cv-01319-NBF to the proceeding.
The case arises from the Defendants' alleged unjust enrichment and
violations of the Pennsylvania's Wage Payment and Collection Law
and the Pennsylvania's Minimum Wage Act by failing to pay
appropriate minimum wages and overtime wages.
Dollar General Corporation is a is an American chain of variety
stores, with its principal place of business in Tennessee.
Dolgencorp LLC is a wholly-owned company of Dollar General
Corporation, with its principal place of business in Tennessee.
[BN]
The Defendants are represented by:
Adam T. Simons, Esq.
MCGUIREWOODS LLP
500 East Pratt Street, Suite 1000
Baltimore, MD 21202
Telephone: (410) 659-4417
E-mail: asimons@mcguirewoods.com
DTK FACILITY: Faces Arreola Suit Over Janitors' Unpaid Overtime
---------------------------------------------------------------
JUAN ARREOLA, individually and on behalf of all others similarly
situated, Plaintiff v. DTK FACILITY SERVICES, LLC and RYAN BISHOP,
Defendants, Case No. 4:22-cv-03144 (S.D. Tex., September 14, 2022)
is a class action against the Defendants for failure to compensate
the Plaintiff and similarly situated workers overtime pay for all
hours worked in excess of 40 hours in a workweek in violation of
the Fair Labor Standards Act.
Mr. Arreola was hired by the Defendants to perform performing
cleaning, janitorial, and maintenance work from November of 2021
until June of 2022.
DTK Facility Services, LLC is a provider of cleaning services based
in Texas. [BN]
The Plaintiff is represented by:
Josef F. Buenker, Esq.
THE BUENKER LAW FIRM
P.O. Box 10099
Houston, TX 77206
Telephone: (713) 868-3388
Facsimile: (713) 683-9940
E-mail: jbuenker@buenkerlaw.com
DUNGARVIN OHIO: Underpays Home Health Aides, Duvall Suit Claims
---------------------------------------------------------------
LORA DUVALL and ALEXIS ROSS, on behalf of themselves and others
similarly situated, Plaintiffs v. DUNGARVIN OHIO, LLC, and
DUNGARVIN, INC., Defendants, Case No. 2:22-cv-03372-SDM-KAJ (S.D.
Ohio, Sept. 7, 2022) arises from the Defendants' failure to pay
employees overtime wages, seeking all available relief under the
Fair Labor Standards Act, the Ohio Minimum Fair Wage Standards Act,
and the Ohio Prompt Pay Act.
Plaintiff Duvall worked for the Defendants as a direct support
professional/caregiver, also referred to as a home health aide. He
primarily worked as an hourly, non-exempt employee as defined in
the FLSA and the Ohio Acts.
Dungarvin Ohio, LLC is a provider of in-home healthcare
services.[BN]
The Plaintiff is represented by:
Matthew J.P. Coffman, Esq.
Adam C. Gedling, Esq.
Kelsie N. Hendren, Esq.
COFFMAN LEGAL, LLC
1550 Old Henderson Rd. Suite 126
Columbus, OH 43220
Telephone: (614) 949-1181
Facsimile: (614) 386-9964
E-mail: mcoffman@mcoffmanlegal.com
agedling@mcoffmanlegal.com
khendren@mcoffmanlegal.com
EARGO INC: Wolfe Sues Directors for Breach of Fiduciary Duties
--------------------------------------------------------------
ADAM C. WOLFE, directly on behalf of himself and all other
similarly situated stockholders of Eargo, Inc., Plaintiff v.
CHRISTIAN GORMSEN, DOUG HUGHES, DAVID WU, JOSH MAKOWER, KATHERINE
BAYNE, NINA RICHARDSON, and A. BROOKE SEAWELL, Defendants, Case No.
2022-0812 (Del. Ch., September 14, 2022) is a class action against
the Defendants for breach of their fiduciary duties.
According to the complaint, the Defendants breached their fiduciary
duties by failing to disclose: (a) the process and negotiations
considered before entering into an agreement to issue and sell up
to $125 million in senior secured convertible notes and the related
rights offering, (b) any analysis performed by the company's
financial advisors, (c) any projections or financial information
shared with Patient Square Capital, and (d) the alternatives
considered by the board before entering into the mentioned
agreement and the related rights offering. As a result, Eargo
stockholders are not given with all material information necessary
for them to make a fully informed decision whether to vote in favor
of the share increase amendment or the Nasdaq approval proposal or
participate in the rights offering, says the suit.
Eargo, Inc. is an American hearing aid manufacturer based in San
Jose, California. [BN]
The Plaintiff is represented by:
Joseph L. Christensen, Esq.
MCCOLLOM D'EMILIO SMITH UEBLER LLC
2751 Centerville Road, Suite 401
Wilmington, DE 19808
Telephone: (302) 468-5960
- and -
D. Seamus Kaskela, Esq.
Adrienne Bell, Esq.
KASKELA LAW LLC
18 Campus Boulevard, Suite 100
Newtown Square, PA 19073
Telephone: (484) 258-1585
ELITE INSURANCE: Underpays Insurance Sales Agents, Grabowski Says
-----------------------------------------------------------------
TRISTAN GRABOWSKI, individually and on behalf of all others
similarly situated, Plaintiff v. ELITE INSURANCE PARTNERS LLC and
JAGGER ESCH, Defendants, Case No. 8:22-cv-02135 (M.D. Fla.,
September 14, 2022) is a class action against the Defendants for
failure to compensate the Plaintiff and similarly situated Medicare
insurance sales agents (ISA) overtime pay for all hours worked in
excess of 40 hours in a workweek in violation of the Fair Labor
Standards Act.
Mr. Grabowski worked for Elite Insurance Partners as a Medicare ISA
at Elite's physical office located in Palm Harbor, Florida from
January 2019 until February 2021.
Elite Insurance Partners LLC is a health insurance agency,
headquartered in Palm Harbor, Florida. [BN]
The Plaintiff is represented by:
Mitchell Feldman, Esq.
FELDMAN LEGAL GROUP
6916 W. Linebaugh Ave., Ste. 101
Tampa, FL 33625
Telephone: (813) 639-9366
Facsimile: (813) 639-9376
FALKO BAKERY: Jimenez Sues Over Kitchen Staff's Unpaid Wages
------------------------------------------------------------
BERENICE JIMENEZ, on behalf of herself and all others similarly
situated, Plaintiff v. FALKO BAKERY SHOP INC. d/b/a COFFEE BREAK
and JOEL WEISSMAN, Defendants, Case No. 1:22-cv-05327 (E.D.N.Y.,
Sept. 7, 2022) is brought by the Plaintiff to recover from
Defendants her unpaid minimum and overtime wages, spread-of-hours
pay, liquidated damages, statutory damages, pre- and post-judgment
interest, and attorneys' fees and costs pursuant to the Fair Labor
Standards Act, the New York Labor Law, and the New York Wage Theft
Prevention Act.
Ms. Jimenez was employed by the Defendants since approximately
January 2018 as a cook and kitchen helper.
Falko Bakery Shop Inc., d/b/a Coffee Break, is a coffee and
sandwich shop located in Brooklyn, New York.[BN]
The Plaintiff is represented by:
Louis Pechman, Esq.
Gianfranco J. Cuadra, Esq.
PECHMAN LAW GROUP PLLC
488 Madison Avenue, 17th Floor
New York, NY 10022
Telephone: (212) 583-9500
E-mail: pechman@pechmanlaw.com
cuadra@pechmanlaw.com
FASHION NOVA: Alcazar Wins Class Certification Bid
--------------------------------------------------
In the class action lawsuit captioned as JUAN ALCAZAR v. FASHION
NOVA, INC., Case No. 4:20-cv-01434-JST (N.D. Cal.), the Hon. Judge
Jon S. Tigar entered an order granting motion for class
certification.
Alcazar seeks to certify two classes. The first is "a nationwide
class comprised of:
"all legally blind individuals who have attempted to access
Defendant’s website by the use of a screen software during
the applicable limitations period up to and including final
judgment in this action."
The second is "a California class, comprised of:
"all legally blind individuals in the State of California who
have attempted to access Defendant's website by the use of a
screen reading software during the applicable limitations
period up to and including final judgment in this action."
Alcazar is visually impaired. In this putative class action,
Alcazar seeks to certify a class in a lawsuit alleging that
Defendant Fashion Nova operates its website in violation of the
Americans with Disabilities Act (ADA) and the Unruh Civil Rights
Act. He alleges that he was "denied access to the goods and
services of Fashion Nova's stores, which are places of public
accommodation" when he unsuccessfully tried accessing Fashion
Nova's website "using screen-reader software."
Fashion Nova is an American fast fashion retail company.
A copy of the Court's order dated Sept. 6, 2022 is available from
PacerMonitor.com at https://bit.ly/3xAOrWJ at no extra charge.[CC]
FEDEX CORP: Summary Judgment Partly Granted in Sobaszkiewicz
------------------------------------------------------------
In the class action lawsuit captioned as SHANNON SOBASZKIEWICZ, et
al., v. FEDEX CORPORATION, et al., Case No. 4:18-cv-07553-PJH (N.D.
Cal.), the Hon. Judge Phyllis J. Hamilton entered an order granting
in part and denying in part motion for summary judgment.
The court rules as follows:
-- As to the first cause of action for fraudulent
misrepresentation, FedEx's motion for summary judgment is
granted as to all plaintiffs.
-- As to the second cause of action for conversion, FedEx's
motion for summary judgment is granted as to all
plaintiffs.
-- As to the third cause of action for failure to pay for all
hours worked, FedEx's motion for summary judgment is
granted to the extent it is based on benefits claims,
granted as to Sobaczkiewicz and Overpeck to the extent this
claim is derivative of overtime or meal/rest break claims,
and denied as to Sterling on the same basis to the extent
that he drove light vehicles and/or short-haul routes.
-- As to the fourth cause of action for failure to provide
meal periods, FedEx's motion for summary judgment is
granted as to Sobaczkiewicz and Overpeck and denied as to
Sterling to the extent that he drove light vehicles and/or
short-haul routes.
-- As to the fifth cause of action for failure to provide rest
periods, FedEx's motion for summary judgment is granted as
to Sobaczkiewicz and Overpeck and DENIED as to Sterling to
the extent that he drove light vehicles and/or short-haul
routes.
-- As to the sixth cause of action for failure to pay minimum
wage, FedEx's motion for summary judgment is granted to the
extent it is based on benefits claims, granted as to
Sobaczkiewicz and Overpeck to the extent this claim is
derivative of overtime or meal/rest break claims, and
denied as to Sterling on the same basis to the extent that
he drove light vehicles and/or short-haul routes.
-- As to the seventh cause of action for failure to pay
overtime, FedEx's motion for summary judgment is granted as
to Sobaczkiewicz and Overpeck and denied as to Sterling to
the extent that he drove light vehicles and/or short-haul
routes.
-- As to the eighth cause of action for failure to maintain
payroll records, FedEx's motion for summary judgment is
denied as to all plaintiffs.
-- As to the ninth cause of action for inaccurate wage
statements, FedEx's motion for summary judgment is granted,
except to the extent that this claim derives from
Sterling's overtime and meal/rest break claims.
This is a wage and hour suit brought by long-haul and local
delivery drivers who provided transportation and delivery services
in California for defendants FedEx Ground Package System, Inc. and
FedEx Corporation.
The Plaintiffs allege that FedEx's labor force was previously made
up of individual drivers that FedEx hired directly and labeled as
independent contractors. The Plaintiffs allege that, following
litigation challenging the "independent contractor" classification,
FedEx then pivoted to an "independent service provider" (ISP)
model. The Plaintiffs allege that the ISPs are "little more than
job placement outfits," and that the ISP model is "just a
continuation of FedEx's continuing practice of misrepresenting and
obscuring the true relationship between FedEx and its drivers: that
of employer-employee."
The complaint was initially filed as a class action, but class
certification was denied, leaving twelve causes of action asserted
on behalf of individual plaintiffs Shannon Sobaszkiewicz, Herman
Overpeck, and Kevin Sterling:
(1) Common Law Fraudulent Misrepresentation;
(2) Common Law Conversion;
(3) Failure to Pay for All Hours Worked, Cal. Labor Code
section 201, 202, 204, 221-23, and 226.2;
(4) Failure to Provide Meal Periods, Cal. Labor Code section
226.7, 512 and 8 Cal. Code Regs. Section 11090;
(5) Failure to Provide Rest Periods, Cal. Labor Code section
226.7 and 8 Cal. Code Regs. Section 11090;
(6) Failure to Pay Minimum Wages, Cal. Labor Code sections
1182.11–82.12, 1194, and 1197–97.1;
(7) Failure to Pay Overtime Compensation, Cal. Labor Code
section 510, 515.5, 1194, and 1198 et seq.;
(8) Failure to Keep Accurate Payroll Records, Cal. Labor Code
sections 1174–74.5;
(9) Failure to Furnish Accurate Wage Statements, Cal. Labor
Code section 226;
(10) Waiting Time Penalties, Cal. Labor Code sections 201–03;
(11) Unfair Competition and Unlawful Business Practices, Cal.
Bus. & Prof. Code section 17200, et seq.; and
(12) Private Attorneys General Act violations, Cal. Labor Code
section 2698, et seq.
A copy of the Court's order dated Sept. 1, 2022 is available from
PacerMonitor.com at https://bit.ly/3QDkiwz at no extra charge.[CC]
FIRST ADVANTAGE: Case Management Order Entered in Stewart Suit
--------------------------------------------------------------
In the class action lawsuit captioned as DEMARCUS STEWART v. FIRST
ADVANTAGE BACKGROUND SERVICES CORP., Case No. 5:22-cv-02998-VKD
(N.D. Cal.), the Hon. Judge Virginia K. Demarchi entered a case
management order as follows:
-- Deadline for joint status report June 5, 2023
re Alternative Dispute
Resolution (ADR):
-- Deadline to complete discovery March 29, 2024
re class certification and Mr.
Stewart's individual claims:
-- Deadline to file motion for May 3, 2024
class certification no later
than:
The parties indicate that they have agreed to bifurcate discovery
relating to class certification and Mr. Stewart's individual claims
from discovery relating to the merits of the class claims.
If the parties wish to proceed in this manner, they must file a
stipulation documenting their agreement and a proposed order for
the Court's approval. In the event discovery disputes arise, the
parties shall comply with the discovery dispute procedure outlined
in Judge DeMarchi's Standing Order for Civil Cases, which sets
forth the requirements for filing joint discovery letter briefs
rather than noticed discovery motions, the Court says.
The Parties are encouraged to promptly address discovery disputes.
At the latest, discovery disputes relating to class certification
and Mr. Stewart's individual claims must be submitted to the Court
no later than seven days after the deadline to complete such
discovery, the Court adds.
A copy of the Court's order dated Sept. 6, 2022 is available from
PacerMonitor.com at https://bit.ly/3ShEB3T at no extra charge.[CC]
FLORIDA: Faces Class Action Suit for Underfunding of HBCUs
----------------------------------------------------------
Leading plaintiffs' law firm Grant & Eisenhofer and noted civil
rights attorney Joshua Dubin filed a class action complaint in
federal court in Florida, alleging that the state deliberately and
systematically maintains a racially segregated higher-education
structure that favors traditionally white schools over Historically
Black Colleges & Universities, known as HBCUs.
The suit was filed on behalf of six graduate and undergraduate
students at Florida Agricultural and Mechanical University (FAMU),
in Tallahassee, whose more than 9,000 students make it one of the
nation's largest HBCUs. Their complaint names the state, the board
of governors of the State University System and system chancellor
Marshall M. Criser III as defendants. The complaint was filed in
U.S. District Court for the Northern District of Florida.
Plaintiffs seek declaratory and injunctive relief under Title VI of
the 1964 Civil Rights Act, the equal protection clause of the 14th
Amendment and federal and state laws. Specifically, the suit
demands that the state of Florida commit to complete parity in its
support of HBCUs and traditionally white institutions (aka TWIs)
within five years.
The five-year horizon would not be the first time the state has
pledged to enhance minority access to quality higher education: it
has faced investigation and intervention by the US Dept. of
Education going as far back as 1970. In the late 1990s Florida
agreed to improve HBCU education through enhanced recruitment of
students and staff, upgraded activities and programming, capital
improvements, more reliable and substantial funding, and unique
courses of study not duplicated nearby. In all of these areas, the
lawsuit asserts, the state has failed FAMU.
The complaint filed outlines the stark discrepancy in state
treatment of FAMU and Florida's TWIs, as illustrated by examples of
FAMU as compared to other traditionally white universities in the
state. According to the complaint, the University of Florida
receives a larger state appropriation per student than FAMU - over
33 years, from 1987 to 2020, that shortfall amounted to
approximately $1.3 billion, though the two schools share the
distinction of being the state's only public land-grant colleges.
Moreover, the complaint alleges that the state supports programming
and courses of study at Florida State University (FSU), a
traditionally white university also located in Tallahassee, that
unnecessarily duplicates programming at FAMU, which steers
prospective students toward FSU. The state's underfunding and
allowance of program duplication serves to perpetuate the "separate
but equal" standard that was in place during the Jim Crow era and
was ended by the US Supreme Court's decision in Brown v. Board of
Education in 1954. Comparatively under-supported and -financed,
FAMU has greater difficulty recruiting and retaining students and
quality faculty and staff.
Mr. Dubin said, "FAMU is more than 130 years old, opened as the
result of a federal land grant to the state. It produces more
African-American BA graduates than any four-year public college in
the nation. Yet it's still playing catch-up in the state of
Florida, which we feel has acted with an astonishing lack of good
faith, despite decades of directives from the federal government
that all students in the state receive equal educational
opportunities. This deliberate indifference toward HBCUs is not
unique to Florida, but FAMU is where we're joining the fight to
ensure the education is fair for everyone."
There are approximately 100 HBCUs in the US. Their uphill battle
for fair treatment was recently the subject of a New York Times
article on the rocky road of the FAMU Rattlers, the school's
Division I football team, to prepare for the new season. "Athletes
at historically Black colleges and universities often are no
stranger to struggle, their institutions routinely deprived of the
resources common at predominantly white institutions," said the
Times.
This past August FAMU football players released an open letter to
the university's president over poorly maintained, inadequate or
incomplete facilities. Recent housing shortages partly prompted by
flooding damage and insect infestations forced the relocation of
hundreds of FAMU students; some slept in their cars. "Florida has
continually failed to provide the appropriate contracts,
contractors, supplies, and appropriations for timely completion of
projects at HBCUs," says the complaint.
Britney Denton, a first-year doctoral student at FAMU's College of
Pharmacy and Pharmaceutical Studies and a named plaintiff in the
suit, said, "Our school has always made a little go a long way, but
we shouldn't have to. There are bright and determined people here
who deserve the same level of support and quality of resources as
FSU next door or any other state school in Florida. We're proud to
be here, and we want Florida to be proud to support us, and other
HBCUs, equally."
Bobby Brown, an attorney in Grant & Eisenhofer's Civil Rights
group, added, "As I was growing up in Florida, the son and brother
of proud HBCU grads, most of the professionals I admired had gone
to HBCUs. The complaint filed isn't about simple state oversight or
forgetfulness: FAMU and FSU are neighbors - literally and
figuratively across the railroad tracks from one another - yet the
shortfall in Florida's support for FAMU is starkly evident. Britney
and her fellow plaintiffs are standing up for nothing less than
just and equal funding for all state schools in Florida."
Mr. Dubin's co-counsel, Barbara Hart, a partner at Grant &
Eisenhofer and a leader of the firm's Civil Rights group, said,
"While Florida works to provide a quality education at
traditionally white institutions, its treatment of HBCUs has hardly
evolved from the middle of the 20th century. FAMU is more dependent
on state funding than other schools, yet Florida education policy
treats it as little more than an after-thought. Thirty years ago,
the US Supreme Court held that Mississippi's education system
violated the equal protection clause of the 14th Amendment - it
remained for all intents and purposes segregated. Here we are well
into the 21st century and Florida treats its HBCUs as Mississippi
did then. This lawsuit isn't about history, though - it's about
changing things here and now and for the future."
In addition to injunctive relief and a declaration that the state
of Florida and its education system violate the Civil Rights Act
and the 14th Amendment, the FAMU students seek appointment of a
special referee or mediator to draw up recommendations for
alleviating the state's statutory and constitutional violations.
About Grant & Eisenhofer
Grant & Eisenhofer is one of the nation's leading litigation firms,
with a highly successful track record representing plaintiffs in
complex litigation and arbitration matters. The firm has offices in
Wilmington (Delaware), New York, Chicago and San Francisco, and an
international docket of high-profile cases. In the past 15 years,
the Firm has obtained recoveries totaling over $29 billion for its
clients across its many practice areas, and has twice been cited by
RiskMetrics for securing the highest average investor recovery in
securities class actions. G&E has been named one of the country's
top plaintiffs' law firms by The National Law Journal for more than
a decade, and was named one of the nation's "Most Feared Plaintiffs
Firms" as well as one of Delaware's "Regional Powerhouses" by
Law360. For more information, visit www.gelaw.com.
About Josh Dubin
Attorney Josh Dubin has litigated numerous matters involving
exoneration and innocence claims alongside leading social justice
and civil rights lawyers for decades. Mr. Dubin has successfully
litigated numerous high-profile cases. His most recent wins include
a $441 million settlement on behalf of Tinder co-founders, in a
stock valuation lawsuit against IAC and Match Group. Mr. Dubin is
also one of the country's leading trial strategists and jury
consultants. [GN]
FLORIDA: Faces Migrants Class Action Over Human Trafficking
-----------------------------------------------------------
Jorge Rodriguez-Jimenez at remezcla.com reports that a civil rights
law firm filed a lawsuit against Governor Ron DeSantis and the
State of Florida after 50 Venezuelan migrants were flown from Bexar
County, Texas to Martha's Vineyard, Massachusetts. Lawyers for
Civil Rights in conjunction with Alianza Americas, a migrant-led
nonprofit filed the suit claiming that the migrants were
fraudulently coerced into being flown to Martha's Vineyard .
The federal class action lawsuit also names Florida Department of
Transportation Secretary Jared Perdue, and their accomplices as
defendants in what some lawmakers have called human trafficking.
According to NPR, Alianza Americas state that Gov. DeSantis's
actions are part of pushing a "hate-filled agenda" targeting Latine
migrants. This is something we have seen playing out from
Republican lawmakers and governors for cheap political points.
In Texas, Bexar County Sheriff Javier Salazar announced a criminal
investigation into how the migrants, who were lawfully seeking
asylum, ended up on flights to Florida and then on to
Massachusetts.
"The Bexar County Sheriff's Office has opened an investigation into
the migrants that were lured from the Migrant Resource Center,
located in Bexar County, TX, and flown to Florida, where they were
ultimately left to fend for themselves in Martha's Vineyard, MA,"
Sheriff Salazar said in a statement.
As part of the investigation, Sheriff Salazar states that the Bexar
County Sheriff's Office is working closely with the attorneys
representing the migrant advocacy organizations. The Bexar County
Sheriff's Office is also prepared to work with federal agencies if
the needs should arise in the matter.
Taryn Fenske, the spokesperson for Gov. DeSantis, released a
statement condemning the nonprofit and law firm claiming them to be
opportunistic for the sake of political theater.
"If these activists spent even a fraction of this time and effort
at the border, perhaps some accountability would be brought to the
Biden administration's reckless border policies that entice illegal
immigrants to make dangerous and often lethal journeys through
Central America and put their lives in the hands of cartels and
Coyotes," reads part of the statement released by Fenske. [GN]
FLUXPACE DESIGN: Fails to Provide Proper Wages, Lopez Suit Says
---------------------------------------------------------------
Juan Lopez, on behalf of himself and others similarly situated in
this proposed FLSA Collective Action, Plaintiff v. Fluxpace Design
& Build LLC, Fluxpace Inc., and Victor Sierra, Defendants, Case No.
1:22-cv-07605 (S.D.N.Y., Sept. 7, 2022) arises from the Defendants'
alleged violations of the Fair Labor Standards Act, the New York
State Labor Law and their supporting New York State Department of
Labor regulations.
Plaintiff Lopez was employed as a construction worker, foreman and
manual laborer at Defendants' construction company from August 2021
until July 2022. He alleges that the Defendants failed to pay
overtime wages; provide wage notices and proper wage statements;
pay spread-of-hours compensation; and pay timely wages.
Fluxpace Design & Build LLC is a construction company.[BN]
The Plaintiff is represented by:
Joshua Levin-Epstein, Esq.
Jason Mizrahi, Esq.
LEVIN-EPSTEIN & ASSOCIATES, P.C.
60 East 42nd Street, Suite 4700
New York, NY 10165
Telephone: (212) 792-0046
E-mail: Joshua@levinepstein.com
FORD MOTOR: Court Enters Scheduling Order in Roe Class Suit
-----------------------------------------------------------
In the class action lawsuit captioned as BOBBY ROE, DONALD M.
CHRISTENSON, DARRYL MORI, JOSEPH ALBANESI, DAVID KROW, FRANKLIN
LOWERY, WILLIAM SCHUETTE, CHRISTOPHER STACK, and FERRIS MOGY
individually and on behalf of all others similarly situated, v.
FORD MOTOR COMPANY, Case No. 2:18-cv-12528-LJM-APP (E.D. Mich.),
the Court entered a scheduling order:
-- Fact Discovery Cutoff: February 24, 2023
-- Plaintiffs' Expert Reports: March 10, 2023
-- Defendants' Expert Reports: May 5, 2023
-- Plaintiffs' Rebuttal Expert June 5, 2023
Reports:
-- Expert Discovery Cutoff: June 30, 2023
-- Plaintiffs' Motion for Class August 4, 2023
Certification and Any
Dispositive Motions Due:
-- Defendants' Opposition to October 6, 2023
Plaintiffs' Motion for
Class Certification and
Responses to Any Dispositive
Motions Due:
-- Plaintiffs' Reply to Motion November 3, 2023
for Class Certification due
and Replies in Support of
Any Dispositive Motions Due:
Ford Motor is an American multinational automobile manufacturer
headquartered in Dearborn, Michigan, United States. It was founded
by Henry Ford and incorporated on June 16, 1903.
A copy of the Court's order dated Sept. 1, 2022 is available from
PacerMonitor.com at https://bit.ly/3S1dEBg at no extra charge.[CC]
FRANK AKEF: Fails to Pay Proper Wages, Hyde Suit Alleges
--------------------------------------------------------
BONNIE HYDE, individually and on behalf of all others similarly
situated, Plaintiff v. FRANK AKEF & CO., INC.; and DOES 1 through
50, inclusive, Defendants, Case No. 22SMCV01601 (Cal. Super., Los
Angeles Cty., Sept. 16, 2022) is an action against the Defendants
for failure to pay minimum wages, overtime compensation, authorize
and permit meal and rest periods, provide accurate wage statements,
and reimburse necessary business expenses.
Plaintiff Hyde was employed by the Defendants as staff.
FRANK AKEF & CO., INC. provides accounting, tax services, payroll,
business management, wealth preservation, estate and financial
planning. [BN]
The Plaintiff is represented by:
Haig B. Kazandjian, Esq.
Cathy Gonzalez, Esq.
Kevin P. Crough, Esq.
HAIG B. KAZANDJIAN LAWYERS, APC
801 North Brand Boulevard, Suite 970
Glendale, CA 91203
Telephone: (818) 696-2306
Facsimile: (818) 696-2307
Email: haig@hbklawyers.com
cathy@hbklawyers.com
kevin@hbklawyers.com
FRIGATE'S WATERFRONT: McCann, et al., Seek Hybrid Class Status
--------------------------------------------------------------
In the class action lawsuit captioned as FITZJOHN MCCANN and
ROBINSON ROMAN, v. FRIGATE'S WATERFRONT BAR & GRILL, INC., a
Florida profit corporation, Case No. 9:22-cv-80464-WM (S.D.Fla.),
the Plaintiffs file a motion for hybrid certification as a class
action under Federal Rule of Civil Procedure 23 and conditional
certification as a collective action under 29 U.S.C. section
216(b).
The Plaintiffs filed an Amended complaint in this action on May 25,
2022, alleging failure to pay minimum wage, and improper retention
of tips, in violation of the Florida Constitution, Article X,
Section 24, as well as violation of the Fair Labor Standards Act
[FLSA].
The Defendant allegedly deducted from its employees, including
Plaintiffs and other similarly situated tipped employees, $2.00
each paycheck for breakage. The Defendant deducted this breakage
fee from April 16, 2021, through January 7, 2022.
As a result of this unlawful deduction made from tipped employees,
the Defendant was not permitted to claim a tip credit for
Plaintiffs and other similarly situated employees' wages. Because
the Defendant still claimed a tip credit, Defendant failed to
properly pay their tipped employees the Florida minimum wage and,
for weeks where those employees worked over 40 hours, overtime.
The Plaintiffs brings both a state-law claim for violation of
Article X, Section 24, of the Florida Constitution and a
federal-law claim under the FLSA.
A copy of the Plaintiffs' motion dated Sept. 2, 2022 is available
from PacerMonitor.com at https://bit.ly/3UbWEdH at no extra
charge.[CC]
The Plaintiffs are represented by:
Cathleen Scott, Esq.
Gabriel "Gabe" Roberts, Esq.
SCOTT LAW TEAM, LLC
Jupiter Gardens
250 South Central Boulevard, Suite 104-A
E-mail: CScott@scottlawteam.com
mail@scottlawteam.com
groberts@scottlawteam.com
mail@scottlawteam.com
The Defendant is represented by
Gary A. Isaacs, Esq.
COHEN NORRIS WOLMER RAY
TELEPMAN BERKOWITZ & COHEN
712 U.S. Highway One, Suite 400
North Palm Beach, FL 33401
Telephone: (561) 844-3600
E-mail: gai@fcohenlaw.com
FULGENT GENETICS: Bids for Lead Plaintiff Appointment Due Nov. 21
-----------------------------------------------------------------
Bronstein, Gewirtz & Grossman, LLC notifies investors that a class
action lawsuit has been filed against Fulgent Genetics, Inc.
("Fulgent" or the "Company") (NASDAQ: FLGT) and certain of its
officers, on behalf of all persons and entities that purchased, or
otherwise acquired Fulgent securities between March 22, 2019 and
August 4, 2022, both dates inclusive (the "Class Period"). Such
investors are encouraged to join this case by visiting the firm's
site: www.bgandg.com/flgt.
This class action seeks to recover damages against Defendants for
alleged violations of the federal securities laws.
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: (1) Fulgent had been conducting
medically unnecessary laboratory testing, engaging in improper
billing practices in relation to laboratory testing, and providing
or receiving remuneration in violation of the Anti-Kickback Statute
and Stark Law; (2) accordingly, Fulgent was likely to become
subject to enhanced legal and regulatory scrutiny; (3) Fulgent's
revenues, to the extent they were derived from the foregoing
unlawful conduct, were unsustainable; (4) the foregoing, once
revealed, was likely to subject the Company to significant
financial and/or reputational harm; and (5) as a result, the
Company's public statements were materially false and misleading at
all relevant times.
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/flgt 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 Fulgent you have until November 21, 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.
Contact:
Bronstein, Gewirtz & Grossman, LLC
Peretz Bronstein or Yael Nathanson
212-697-6484 | info@bgandg.com [GN]
GEMINI THERAPEUTICS: Juan Monteverde Investigates Securities Suit
-----------------------------------------------------------------
Juan Monteverde, founder and managing partner of the class action
firm Monteverde & Associates PC (the "M&A Class Action Firm"), a
national securities firm rated Top 50 in the 2018-2021 ISS
Securities Class Action Services Report and headquartered at the
Empire State Building in New York City, is investigating:
Gemini Therapeutics, Inc. (GMTX), relating to its proposed merger
with Disc Medicine, Inc. Under the terms of the agreement, GMTX
shareholders are expected to own 28% of the newly combined company.
Click here for more information:
http://monteverdelaw.com/case/gemini-therapeutics-inc.It is free
and there is no cost or obligation to you.
About Monteverde & Associates PC
We are a national class action securities litigation law firm that
has recovered millions of dollars and is committed to protecting
shareholders from corporate wrongdoing. We were listed in the Top
50 in the 2018-2021 ISS Securities Class Action Services Report.
Our lawyers have significant experience litigating Mergers &
Acquisitions and Securities Class Actions. Mr. Monteverde is
recognized by Super Lawyers as a Rising Star in Securities
Litigation in 2013, 2017-2019, an award given to less than 2.5% of
attorneys in a particular field. He has also been selected by
Martindale-Hubbell as a 2017-2021 Top Rated Lawyer. Our firm's
recent successes include changing the law in a significant victory
that lowered the standard of liability under Section 14(e) of the
Exchange Act in the Ninth Circuit. Thereafter, our firm
successfully preserved this victory by obtaining dismissal of a
writ of certiorari as improvidently granted at the United States
Supreme Court. Emulex Corp. v. Varjabedian, 139 S. Ct. 1407 (2019).
Also, in 2019 we recovered or secured six cash common funds for
shareholders in mergers & acquisitions class action cases.
If you own common stock in any of the above listed companies and
wish to obtain additional information and protect your investments
free of charge, please visit our website or contact Juan E.
Monteverde, Esq. either via e-mail at jmonteverde@monteverdelaw.com
or by telephone at (212) 971-1341. [GN]
GENZYME CORP: Massachusetts Court Dismisses Wilkins Class Suit
--------------------------------------------------------------
Judge Douglas P. Woodlock of the U.S. District Court for the
District of Massachusetts dismisses the case, TRINA WILKINS, ET
AL., Plaintiffs v. GENZYME CORPORATION, Defendant, Civil Action No.
21-10023-DPW (D. Mass.), in its entirety with respect to all
Plaintiffs.
Fabrazyme is a drug prescribed to treat a rare genetic disorder,
Fabry disease. A shortage of the drug several years ago led
numerous Fabry patients -- among them the Plaintiffs -- to sue
Genzyme, Fabrazyme's manufacturer.
The Plaintiffs are 26 named individuals, who either suffer from
Fabry disease and have taken Fabrazyme or are relatives of such
individuals, according to the now-operative complaint. Among the
named Plaintiffs are citizens of California, Florida, Indiana,
Massachusetts, Michigan, Nevada, New York, North Carolina,
Pennsylvania, Washington, Tennessee, and Virginia. Genzyme is a
Massachusetts corporation with a principal place of business in
Cambridge, Massachusetts; the company markets and sells Fabrazyme
throughout the United States.
In the Second Amended Complaint ("SAC"), the Plaintiffs allege that
a Fabrazyme shortage arose in June 2009 when Genzyme's production
stalled due to various problems at its manufacturing facility --
Hochendoner v. Genzyme Corp., 95 F.Supp.3d 15, 18 (D. Mass. 2015)
("Hochendoner I"), aff'd in part, vacated in part, remanded, 823
F.3d 724 (1st Cir. 2016) ("Hochendoner II"). These problems
included a contamination of Genzyme's bioreactors with vesivirus.
During this shortage, Genzyme adopted a rationing plan under which
United States Fabry sufferers would be allocated less than the
recommended dose, and newly diagnosed Fabry patients would not be
prescribed the drug.
Following the shortage, patients filed lawsuits against Genzyme in
the Western District of Pennsylvania ("the Hochendoner action") and
in this Court ("the Adamo action") (collectively, "the
Hochendoner/Adamo actions"). Upon transfer by the Western District
of Pennsylvania to this Court in Hochendoner I, Judge Woodlock
consolidated the two actions and ruled on motions to dismiss in
both matters. He granted the motions to dismiss, finding that the
complaint failed under Rules 8 and 12(b)(6) of the Federal Rules of
Civil Procedure. The First Circuit affirmed -- "with one small
exception" -- based on standing, an issue not raised until appeal.
The Plaintiffs now were unsuccessful in settling their claims in
the wake of remand. Nearly four years later, on Feb. 29, 2020, they
filed the present action in the U.S. District Court for the
Southern District of Indiana -- Wilkins v. Genzyme Corp.,
20-cv-00051-TWP-DML (S.D. Ind. filed Feb. 29, 2020) ("Hochendoner
III"). On May 6, 2020, they filed a First Amended Complaint ("FAC")
changing identification of the entity or entities alleged to be the
defendant. On Oct. 5, 2020, the Plaintiffs filed the now-operative
SAC, naming Genzyme as the sole defendant.
In the wake of remand, the Plaintiffs entered into settlement
negotiations with Genzyme. During these negotiations, they and
Genzyme struck an agreement on May 17, 2017 that tolled "any
applicable statutes of limitations pertaining to any matters
asserted" during the Hochendoner I and Adamo lawsuits. They now
before the Court were unsuccessful in settling their claims. Judge
Woodlock came to preside over this matter, now Hochendoner IV,
following transfer pursuant to 28 U.S.C. Section 1404(a).
Meanwhile, in response to the pending motion to dismiss the SAC,
the Plaintiffs moved to file a Third Amended Complaint ("TAC").
The operative SAC makes class allegations as to payments for
defective and/or ineffective Fabrazyme, in addition to 24
individual counts. The class allegations are under Fed. R. Civ. P.
23 on behalf of five representative plaintiffs, the other
plaintiffs named in the complaint, and "all others similarly
situated," defined to include "any and all individuals residing in
the United States of America and who have been diagnosed with Fabry
disease, received Fabrazyme at any time from July 1, 2009 through
March 2012 in a reduced dose amount, and who paid for the reduced
dose Fabrazyme, either directly or through an insurance plan and
the spouses of any such person."
The Plaintiffs say that Judge Woodlock has subject matter
jurisdiction under the Class Action Fairness Act ("CAFA"), 28
U.S.C. Section1332(d). The individual claims include nine counts
under common law (Counts 1-4, 20-24) and several under state
statutes concerned with deceptive and unfair trade practices
(Counts 5, 9, 11-14, and 18), product liability (Counts 6-7, 10,
and 19), consumer protection (Counts 8 and 15), false advertising
(Count 16), and wrongful death/survival (Count 17).
The individual claims, stated in the order presented in the Second
Amended Complaint, are as follows: Negligence, Negligence per se,
Strict Liability, Breach of Warranty, Florida Deceptive and Unfair
Trade Practices Act Violation, Indiana Products Liability Action
Violation, Product Liability Act of Kentucky Violation, Kentucky
Consumer Protection Act Violation, Massachusetts Unfair and
Deceptive Trade Practices Act Violation, Michigan State Product
Liability Act Violation, Michigan State Law Deceptive Trade
Practice Violation, Nevada State Law Deceptive Trade Practice
Violation, North Carolina Unfair and Deceptive Trade Practices Act
Violation, Pennsylvania Unfair Trade Practices Consumer Protection
Law Violation, Virginia Consumer Protection Act Violation, Virginia
Prohibition of False Advertising Violation, Virginia Wrongful Death
or in the alternative Survival Action Claims, Washington Uniform
Deceptive Trade Practices Act, Washington Product Liability Act
Violation, Fraud, Fraudulent Concealment, Breach of Fiduciary Duty,
Unjust Enrichment, and Loss of Consortium.
Although the SAC remains the operative pleading, the Plaintiffs
seek to file a TAC, which they say is appropriate in response to
Genzyme's Motion to Dismiss. The TAC would bring four small
changes. First, it would attach a tolling agreement the parties
entered into after the decision in Hochendoner II. Second, it would
add allegations based on a draft of a letter that Genzyme included
with its Motion to Dismiss. Third, it would drop causes of action
under the Massachusetts Deceptive Trade Practices Act, Washington
Uniform Deceptive Trade Practices Act, and Washington Product
Liability Act. Fourth, it would drop claims related to 2013 and
2015 contaminations at the Framingham Plant.
The Defendant presents four grounds for dismissal. First, it says
the litigation should be dismissed pursuant to Fed. R. Civ. P.
12(b)(1) for lack of subject matter jurisdiction, because all
putative class claims that support federal jurisdiction are
untimely and complete diversity is lacking between the parties. In
any event, Genzyme contends the Court should decline to exercise
supplemental jurisdiction over any remaining state law claims.
Second, it contends each Plaintiff lacks standing as another reason
to dismiss under Fed. R. Civ. P.12(b)(1). Third, it contends the
Plaintiffs' claims all essentially sound in fraud and fail to meet
the Fed. R. Civ. P.9(b) particularity standard. Fourth, Genzyme
contends the Plaintiffs have failed to state a claim under Fed. R.
Civ. P.8 and Fed. R. Civ. P.12(b)(6).
As to the proposed TAC, Genzyme says the Court should deny this
request outright, because presenting another complaint at this
point in the litigation would be prejudicial and is futile, since
the proposed TAC will not overcome the inadequacies of the Second
Amended Complaint that provide the basis for dismissal.
Judge Woodlock must identify at the outset two basic threshold
considerations -- choice of law and whether and how to treat a
proposed amended complaint -- that shape his approach to
consideration of Genzyme's motion to dismiss contentions.
For questions of state law, Judge Woodlock follows Indiana
choice-of-law rules, as would an Indiana federal court sitting in
diversity. For questions of federal law, he applies federal law as
interpreted by the First Circuit. With recognition that Genzyme
suggests the proposed TAC is futile, he turns first to Genzyme's
Motion to Dismiss as applied to the currently operative SAC. But he
references points that would be added by the proposed TAC, when
relevant. In addressing the Motion to Dismiss, Judge Woodlock
starts with the arguments about subject matter jurisdiction.
Genzyme contends the Court lacks subject matter jurisdiction
because the claims underlying the CAFA class claims -- the only
aspect of this litigation that could support federal jurisdiction
in the first place -- are all time-barred. For their part, the
Plaintiffs say tolling under American Pipe & Const. Co. v. Utah,
414 U.S. 538 (1974), Indiana's Journey Account Statute, and a May
2017 tolling agreement between the parties' work to preserve their
claims.
Judge Woodlock holds that Indiana's statutes of limitations apply
for all the common law claims -- as well as the claim under the
Indiana Product Liability Act. The common law claims are for
negligence, negligence per se, strict liability, breach of
warranty, fraud, fraudulent concealment, breach of fiduciary duty,
unjust enrichment, and loss of consortium. A two-year statute of
limitations applies for the common law claims.
In Count Four, the Plaintiffs allege various breaches of express
and implied warranties under common law. These claims are subsumed
under the Indiana Product Liability Act for two reasons, and
accordingly a two-year statute of limitations applies.
First, where a breach of warranty claim is "tort-based," "several
federal district courts and other panels of the Indiana Court of
Appeals" have found the claim "subsumed into the Indiana Product
Liability Act." Second, the Plaintiffs did not bring their claim
for breach of warranty under the Indiana adoption of the Uniform
Commercial Code, which is "independent" from the Indiana Products
Liability Act and provides for different damages. Similarly, the
claims sounding in fraud and in unjust enrichment are subject to
the two-year statute of limitations, since the litigation continues
to present a products liability case and the fraud and unjust
enrichment claims arise out of that framework.
Loss of consortium is a derivative claim, and thus tied to the
relevant statute of limitations for the loved one's claim;
consequently, it does not have a set statute of limitations but
will rely upon that of the claim from which it is derived. All
other claims brought are under statutes of other states. Judge
Woodlock finds it unnecessary to scrutinize whether Indiana courts
would identify these claims as originating separately at common
law, because the claims in all events have expired for purposes of
Indiana law or the law of the other states.
With the expiration framework in place, Judge Woodlock turns to the
issue of when the Plaintiffs' claims accrued. Examining the
operative SAC, he can identify three types of harm alleged for
purposes of accrual of claims. He considers at what point in time
claims would have accrued in Indiana, using Indiana standards. Of
course, statutes from Florida, Kentucky, Michigan, Nevada, North
Carolina, Pennsylvania, and Virginia are still theoretically in
play, since he has left to the side the question of whether any of
these statutes cover claims originating at common law. However,
none of these states would apply a discovery rule substantially
more plaintiff-friendly than Indiana's.
The first type of harm is said to be caused by some combination of
low dosing and contamination. Both low dosing and contaminated
doses are alleged to have begun in 2009. Thus, the Plaintiffs'
claims accrued by the end of 2009. The second type of harm is that
identified by the Court of Appeals in Hochendoner II; the
sensitization harm asserted by Mr. Mooney. That harm is alleged to
have arisen for some plaintiffs upon return to a full dose. It
applies for three named Plaintiffs: Trina Wilkins, Tom Stanziano,
and Damon LaForce (and also Mr. Stanziano's wife, who brings a
derivative action for loss of consortium). Their return to full
dosage was in 2012, so accrual would have been by no later than the
end of that year. The third type of harm concerns fraud. These
allegations derived from the 2009 contamination. Thus, there is a
fair argument that the Plaintiffs should have been aware of this
injury by the end of 2009.
To synthesize these conclusions, for purposes of Indiana law, the
low-dose/contaminant-based claims and fraud-based claims likely
expired by the end of 2011 and certainly by March 2013. The
sensitization claims appear to have expired by the end of 2014. The
fraud claims conceivably expired by the end of 2011 and certainly
by March 2013.
Turning to consider statutes of other states, any
low-dose/contaminant-based claims or fraud-based claims under: The
Florida Deceptive and Unfair Trade Practices Act likely expired by
the end of 2013 and certainly by March 2015; The Kentucky Products
Liability Act likely expired by the end of 2012 and certainly by
March 2013; The Kentucky Consumer Protection Act likely expired by
the end of 2011 and certainly by March 2013; The Michigan Product
Liability Act likely expired by the end of 2012 and certainly by
March 2014; The Michigan Consumer Protection Act likely expired by
the end of 2015 and certainly by March 2017; The Nevada Deceptive
Trade Practices Act likely expired by the end of 2013 and certainly
by March 2015; The Pennsylvania Consumer Protection Act likely
expired by the end of 2015 and certainly by the end of March 2017;
The Virginia Consumer Protection Act likely expired by the end of
2011 and certainly by the end of March 2013; and The Virginia False
Advertising Act likely expired by the end of 2011 and certainly by
the end of March 2013.
As for sensitization, Judge Woodlock observes Ms. Wilkins is
alleged to be a resident of both Kentucky as well as Indiana. Her
Kentucky Product Liability claim expired by the end of 2013. And
her Kentucky Consumer Protection claim expired by the end of 2014.
The other relevant individuals are Mr. LaForce, who was a Virginia
resident during low-dose treatment, and Mr. Stanziano and his wife,
who are both Florida residents. His claims under the Virginia
Consumer Protection Act and the Virginia False Advertising Act
would have expired by the end of 2014. Mr. Stanziano's claim under
the Florida Deceptive and Unfair Trade Practices Act would have
expired by the end of 2016. And any derivative claim for loss of
consortium by his wife, Wendy Stanziano, would have expired by the
end of 2016 as well.
Lastly, the Virginia Wrongful Death/Survival actions raised by
Eddie Viers and Jeanne Wallace do not fit neatly into the paradigm
just employed for the other claims. As noted, these claims must be
raised within two years of the deceased's death. The complaint
specifies that Mr. Viers lost his wife Teresa Viers in September
2019. Based on this information, the complaint is insufficient as
to Ms. Wallace's claim. However, Mr. Viers' claim would have
accrued in September 2019 and he would have until September 2021 to
bring a claim. Thus, Mr. Viers has the only claim for Wrongful
Death Survival not barred under a statute of limitation enforced by
Indiana.
On a different front, the Plaintiffs and Genzyme debate the
applicability of the Supreme Court's American Pipe tolling
doctrine, which preserves the claims of putative class members when
a class action is filed in court. Although this debate is
interesting, the parties overlook an important consideration.
American Pipe does not by its terms apply where a court sits in
diversity, presiding over state law claims, as Judge Woodlock does
now. Given this context and the fact that the doctrine seems
inappropriate in this circumstance, in any event, he finds American
Pipe tolling unavailable for the Plaintiffs.
The Plaintiffs also contend their claims are preserved by a tolling
agreement. The parties entered into an agreement on May 17, 2017.
Judge Woodlock finds as an initial matter the tolling agreement
unambiguously preserves the claims that the Plaintiffs made in the
Hochendoner I litigation. It is then an open question the exact
extent of what is preserved and what the Plaintiffs are allowed to
argue in a new action reliant on this tolling agreement.
Judge Woodlock turns meanwhile to Indiana's Journey's Account
statute, which the Plaintiffs say is of further help in saving
their claims. Genzyme argues that statute cannot apply because
American Pipe tolling doctrine makes clear that the right to file a
new class action cannot be tolled.
Judge Woodlock finds that the operative SAC is close to satisfying
the requirements of the Journey's Account Statute (except for the
timing component), but he also finds that it differs from that
statute's customary function. On the one hand, most of the claims
are the same and use the same elements. But on the other hand,
entirely new causes of action have been added (wrongful
death/survival; fraud; fraudulent concealment; breach of fiduciary
duty; unjust enrichment), and the facts have been substantially
enhanced.
Turning to standing, although the Plaintiffs embellish their
pleadings from their initial suit in an attempt to establish
standing, they are unsuccessful, with the exception of four
Plaintiffs. Overall, the Plaintiffs improve on showing
particularized harm compared with Hochendoner/Adamo, but none of
the harm they successfully show is fairly traceable to misconduct
by Genzyme (again with the exception of four Plaintiffs). And other
harm they allege fails because it is speculative or insufficiently
alleged.
Judge Woodlock can discern five theories of injury in the SAC. The
first is an acceleration theory. This theory posits that patients
received defective Fabrazyme that caused Plaintiffs' Fabry symptoms
to worsen at a faster pace than would have occurred with proper
Fabrazyme. The second is a sensitization theory. This theory posits
that some Plaintiffs (Ms. Wilkins, Mr. LaForce, and Mr. Stanziano)
became sensitized from low doses of Fabrazyme and consequently
experienced dangerous reactions upon returning to full doses.
The third is a vesivirus theory. This theory posits that the
presence of vesivirus in the Fabrazyme doses given to Plaintiffs
caused "vesivirus-induced vesiculating non-anaphylactic rashes," as
well as an increased "risk of developing fulminating vesivirus
infection, and vesivirus induced hematological cancer." The fourth
is a life expectancy theory. This theory posits that low doses of
Fabrazyme decreased the Plaintiffs' life expectancy. The fifth is a
financial theory. This theory posits that the Plaintiffs spent
money on medically worthless medication, worthless "because it was
ineffective for treating Fabry disease and unsafe to administer at
the dosage and purity which it was sold."
Judge Woodlock addresses whether any of the five theories of harm
satisfy the requirements of constitutional standing. Like the Court
of Appeals in Hochendoner II, he finds that only the sensitization
theory succeeds. The acceleration theory fails for insufficiently
showing causation. The vesisvirus theory fails as well for
insufficiently showing causation and for being too speculative.
Finally, the financial theory also fails because it is
insufficiently pled to show injury.
Nevertheless, the sensitization theory of standing succeeds, as it
did before the First Circuit in Hochendoner II. Mr. LaForce, Mr.
Stanziano, and Ms. Wilkins all say they experienced anaphylactic
response upon returning to a full dose. The allegations here mirror
the allegations in the prior suit but with some specificity. And
Genzyme does not dispute the success of this theory for the four
remaining plaintiffs in their motion to dismiss.
To this point, Judge Woodlock has found that the May 2017 tolling
agreement between the parties preserved the Plaintiffs' claims --
at least in some form -- but that only four Plaintiffs succeed in
establishing standing, and then on a narrow, idiosyncratic basis
(with one of these Plaintiffs doing so with a derivative
loss-of-consortium claim). To maintain this action as a class
action under Rule 23 requires that the class be "so numerous that
joinder of all members is impracticable." Genzyme has not
challenged whether the Plaintiffs satisfy the numerosity
requirements. But with only four Plaintiffs who experienced a very
specific type of injury, Judge Woodlock has about whether the suit
may proceed on a class action basis. He evaluates the claims of
these plaintiffs only on an individual basis.
He finds that although the Plaintiffs make many allegations of
Genzyme concealing information in their other claims, those claims
are fundamentally about product liability and Rule 9(b) does not
apply. The Plaintiffs' allegations also are insufficient to support
a failure-to-warn claim. Further, the Stanzianos' claims fail
because they do not identify what portions, if any, of Florida law
Genzyme violated. Mr. LaForce's claim for strict liability stumbles
at the threshold because, as he admits, Virginia does not permit
strict product liability claims.
Judge Woodlock also finds that the plaintiffs do not show how the
breach of any such warranties led to their anaphylactic reactions
upon returning to a full dose. The Stanzianos' claims under the
Florida Deceptive and Unfair Trade Practices Act also fails because
the law "expressly states that it 'does not apply to a claim for
personal injury." Ms. Wilkins' claims under the Indiana Product
Liability Act and the Kentucky Product Liability Act fail for
reasons similar to those that render the negligence product
liability claims of the Stanzianos and Mr. LaForce inadequate. The
breach of the express warranty must have caused the injury," which
Ms. Wilkins does not demonstrate.
In addition, Judge Woodlock finds that the Mr. LaForce also may not
bring a claim under the Virginia Consumer Protection Act, because
sales of Fabrazyme are regulated by the U.S. Food and Drug
Administration. Mr. LaForce's claim under the Virginia False
Advertising Act fails for the same reason Judge Woodlock found
inadequate a claim under the Act in Hochendoner I. The fraud claims
asserted by Mr. LaForce and the Stanzianos fail because they cannot
trace the harm they experienced to information that Genzyme is
alleged to have withheld intentionally. The claims brought by Mr.
LaForce and the Stanzianos for breach of fiduciary duty fail
because they do not establish a fiduciary duty between Genzyme and
customers taking Fabrazyme.
The unjust enrichment claims that Mr. LaForce and the Stanzianos
bring against Genzyme also fail. The Plaintiffs may have been
harmed by the product, but that is an issue for tort law. Lastly,
Ms. Stanziano's loss of consortium claim fails because it is
derivative of Mr. Stanziano's claims, which as indicated in this
general discussion Judge Woodlock will dismiss.
Having found the Plaintiffs' SAC inadequate, even incorporating the
new information asserted in the proposed TAC, Judge Woodlock denies
the request to file a TAC because doing so would be futile in light
of the shortcomings identified for dismissing the SAC.
For the reasons he set forth, Judge Woodlock grants Genzyme's
Motion to Dismiss with respect to all claims made by the
Plaintiffs. All claims are dismissed without prejudice, except for
the claims he addresses on the merits, which are claims asserted by
Mr. LaForce, Mr. Stanziano, Ms. Stanziano, and Ms. Wilkins
concerning harm they experienced due to sensitization to Fabrazyme.
He denies as futile the Motion to file a TAC.
A full-text copy of the Court's Sept. 14, 2022 Memorandum & Order
is available at https://tinyurl.com/24r92m3h from Leagle.com.
GOLDMAN SACHS: Court Sets June 2023 as Gender Bias Suit Trial Date
------------------------------------------------------------------
A gender class action lawsuit against Goldman Sachs pending since
2010 is finally headed to a federal trial in New York, while a set
of previously sealed claims against the bank has been made public.
The major developments were announced by law firms Lieff Cabraser
Heimann & Bernstein LLP and Outten & Golden LLP, who represent a
large group of current and former Goldman executives comprising a
discrimination class action, captioned as Chen-Oster v. Goldman,
Sachs & Co., No. 10 Civ. 6950.
Background: The court previously granted plaintiffs' request to
certify a class in 2018. The court certified the intentional gender
discrimination as well as disparate impact discrimination claims of
a class of thousands of current and former associates and
vice-presidents in Goldman's Securities, Investment Banking and
Investment Management Divisions since July 2002 (in New York City)
and since September 2004 (nationally). The class certification
order can be found here.
Trial Date Set for June 2023 After Court Rejects Goldman's Serial
Attacks on Class Membership: In the dozen years since the case was
filed, Goldman Sachs has launched repeated attacks on class
membership, including: five failed attempts to undo the class
entirely; adding a hidden arbitration clause in an attempt to
remove nearly 700 class members employed by Goldman between 2016-18
(nearly one-half of whom subsequently expressly requested not to be
removed); and imposing waivers in severance agreements on over 750
class members who left the firm and were removed from the class by
Goldman non-disclosure agreements.
Despite these persistent attacks against their own employees, a
class of over 1,400 women is heading to trial. In its most recent
order, the court set a starting trial date for June 5, 2023 for
this long-running case. It will be held in the U.S. District Court
for the Southern District of New York.
Unsealing of Critical Evidence Against Goldman: Pursuant to the
latest court order, plaintiffs have filed newly unsealed records
concerning submissions and evidence underlying their motion for
class certification. In their motion, plaintiffs identified 133
internal complaints of gender discrimination at Goldman Sachs and 9
charges of discrimination filed with the Equal Employment
Opportunity Commission, as well as company policy and task force
documents, plus expert opinions regarding the challenged promotion,
performance and pay systems, which Plaintiffs contend show evidence
of gender discrimination. Today, plaintiffs lodged 47 of the
previously-referenced complaint and charge records in the public
record, which can be found here. (Names of complainants were not
filed publicly.)
Shareholder Opposition to Arbitration of Harassment Claims Has Not
Stopped Goldman from Using Arbitration to Remove 1,500 Women
Involuntarily from the Class: Plaintiffs allege that during its
2021 annual meeting Goldman disregarded shareholder outcry that
mandatory arbitration unjustly allows gender discrimination and
harassment to go unseen and unaddressed. Goldman defended its
forced arbitration policy in a December 2021 public corporate
governance communication as "appropriate" and finding "no
indication" that its use limited access to legal representation.
These findings flatly contradict expert, judicial and scholarly
recognition that mandatory arbitration closes the courtroom doors
against too many discrimination victims. Notably, among those
removed from the class due to forced arbitration provisions is
former Goldman managing director Jamie Fiore Higgins, who recounted
her own experience facing discrimination in a recently published
book, Bully Market: My Story of Money and Misogyny at Goldman
Sachs.
Key Players: All 1,400-plus class members are women who worked for
Goldman as associates or vice-presidents, with class claims for
discrimination in performance pay and promotion, with the named
plaintiffs also bringing claims for retaliation, unlawful or
constructive termination, and pregnancy discrimination.
Experts: Plaintiffs' experts include labor economist Dr. Henry
Farber, of Princeton University, and human resources expert Dr.
Caren Goldberg, currently the Marie Curie Research Fellow at the
University of Seville. Dr. Farber reviewed Goldman's data and
determined that women at Goldman had less favorable outcomes than
their male counterparts to a statistically significant degree.
Female vice-presidents and associates were paid substantially less
than comparable men with the same position, seniority, division,
and business unit. He also found that women were under-promoted to
managing director. Dr. Farber's report can be found here.
Dr. Caren Goldberg conducted a deep review of Goldman's policies,
complaints, diversity & inclusion work, and HR processes, work
groups, and committees. She determined that Goldman maintains a
climate tolerant of sexual harassment and gender bias. Her report
can be found here.
Next Steps: The court will set deadlines for pre-trial filings
concerning evidence and witnesses. More information - including key
court filings in the case - is available at the website:
https://goldmangendercase.com/
Statements by named plaintiffs and lawyers:
Lead Plaintiff Cristina Chen-Oster stated: "I hope this case will
help to finally break the glass ceiling for women on Wall Street
and set a precedent for other industries where gender
discrimination is pervasive. We need to bring transparency to
practices that previously seemed untouchable. Looking forward to
sharing our experiences at trial."
Plaintiff Allison Gamba said: "When I joined Goldman Sachs I had
such high hopes for the future. I loved being a trader and excelled
at the top of my field in multiple divisions at the firm for many
years. Despite all of my accomplishments including earning record
profits for the firm during the year when I became a mother, I
believe I was passed over for Managing Director multiple times and
retaliated against because I decided to start a family. If Goldman
tried to make me a cautionary tale, I refuse to let this be the end
of my story."
Plaintiff Shanna Orlich stated: "I joined Goldman Sachs after
completing a joint MBA/JD program at Columbia University, but soon
came to understand that my credentials were not as important as my
gender, as I watched a male classmate get brought into the boys'
club based on pushup contests on the trading floor. I regret
joining Goldman, as I think my career never had a chance there. I
want to see a better future for other women and men in the
industry."
Plaintiffs' co-counsel Kelly Dermody of Lieff Cabraser stated, "It
has been a long road for our clients and the many other women in
the class who have been waiting for accountability at Goldman, and
we look forward to finally trying our case in an open courtroom
next spring. While Goldman may even try to claim it is no longer
the same place it was when our case was first filed, recent news
accounts suggest otherwise. We intend to demonstrate that the
careers of so many accomplished women were derailed and stifled by
Goldman's discriminatory actions."
Plaintiffs' co-counsel Adam Klein of Outten & Golden said: "We are
looking forward to presenting our case to a jury and seeking
justice long overdue for our clients. We are also pleased that a
large portion of evidence, including testimony from class members
as well as internal Goldman documents, can finally be shared."
Information about Plaintiffs' Counsel
Lieff Cabraser Heimann & Bernstein, LLP: Lieff Cabraser is one of
the country's largest and most successful firms exclusively
representing plaintiffs in civil litigation, having secured
verdicts or settlements worth over $127 billion for clients
nationwide. With 120 attorneys, the firm has led some of the most
significant litigation of the last decade, including the VW clean
diesel emissions case, which resulted in over $15 billion for VW
owners (In re: Volkswagen 'Clean Diesel' Marketing, Sales
Practices, and Products Liability Litigation, MDL No. 2672
(Northern District of California federal court)); and the high-tech
cold-calling wage conspiracy case alleging an agreement among
prominent technology companies to not poach each other's employees,
which resulted in settlements totaling $435 million (In re:
High-Tech Employee Antitrust Litigation, 11-cv-2509-LJK (Northern
District of California federal court)). Lieff Cabraser is currently
class counsel in the gender pay equity class action, Ellis v.
Google LLC, No. CGC-17-561299, which recently settled for $118
million. Lieff Cabraser represents employees in all variety of
class, collective, and #metoo actions.
Outten & Golden LLP: Outten & Golden LLP focuses on advising and
representing individuals in employment, partnership, and related
workplace matters both domestically and internationally. The firm
counsels individuals on employment and severance agreements;
handles complex compensation and benefits issues (including
bonuses, equity agreements, and partnership interests); and advises
professionals (including doctors and lawyers) on contractual
issues. It also represents employees with a wide variety of claims,
including discrimination and harassment based on sex, sexual
orientation, gender identity and expression, race, disability,
national origin, religion, and age, as well as retaliation,
whistleblower, and contract claims. The firm handles class actions
involving a wide range of employment issues, including economic
exploitation, gender- and race-based discrimination, wage-and-hour
violations, violations of the WARN Act, and other systemic workers'
rights issues. Outten & Golden has nine practice groups: Executives
& Professionals, Financial Services, Sexual Harassment & Sex
Discrimination, Family Responsibilities & Disabilities
Discrimination, Lesbian Gay Bisexual Transgender and Queer (LGBTQ)
Workplace Rights, Discrimination & Retaliation, Whistleblower
Retaliation, Class & Collective Actions, and WARN Act. Outten &
Golden has offices in New York, San Francisco, and Washington, D.C.
[GN]
GOLDMAN SACHS: New York Court Dismisses Falberg ERISA Class Suit
----------------------------------------------------------------
In the case, Leonid Falberg, as representative of a class of
similarly situated persons, and on behalf of the Goldman Sachs
401(k) Plan, Plaintiff, v. The Goldman Sachs Group, Inc., The
Goldman Sachs 401(k) Plan Retirement Committee, and John Does 1-20,
Defendants, Case No. 19 Civ. 9910 (ER) (S.D.N.Y.), Judge Edgardo
Ramos of the U.S. District Court for the Southern District of New
York issued an Opinion and Order:
a. granting the Defendants' motion for summary judgment;
b. denying Falberg's motions for partial summary judgment and
to compel documents; and
c. denying Defendants' motions to strike and to compel
arbitration.
Mr. Falberg, a participant in the Goldman Sachs 401(k) Plan, brings
the putative class action on behalf of the Plan and those similarly
situated. Falberg alleges violations of the Employment Retirement
Income Security Act of 1974 ("ERISA") by the Plan's sponsor, the
Defendants.
Goldman Sachs sponsors a defined-contribution 401(k) plan for
eligible employees. Participants in the Plan are responsible for
directing the investments in their accounts. During the class
period, Oct. 25, 2013, to June 6, 2017, Plan participants could set
up their accounts either through a "target date fund," based on a
target retirement date, or by selecting funds from a menu of 35
single-strategy investment options.
Mr. Falberg worked for Goldman Sachs from 1999 until 2008 and has
participated in the Plan since 1999. During the class period, less
than one third of the Plan's investment options were managed by
Goldman Sachs Asset Management ("GSAM"), an investment manager with
over $1.5 trillion of assets under supervision (as of 2018).
Mr. Falberg challenges the availability of five proprietary mutual
funds managed by GSAM -- the Mid Cap Value Fund, Large Cap Value
Fund, High Yield Fund, Core Fixed Income Fund, and Short Duration
Government Fund -- as investment options in the Plan. These five
funds were included in the Plan's investment menu from before 2013
until their removal in 2017.
Mr. Falberg claims that the Defendants breached their fiduciary
duties under ERISA by (1) "only reluctantly and belatedly" removing
underperforming GSAM funds as Plan investment options, (2) failing
to consider lower-cost institutional investment vehicles, and (3)
failing to claim "fee rebates" on behalf of the Plan that allegedly
were available to other similarly situated retirement plans that
invested in the GSAM funds.
With respect to the retention and "belated" removal of the funds,
Falberg's expert Fender noted that the Committee should have
carefully scrutinized and removed the Mid Cap Value Fund, Large Cap
Value Fund, and High Yield Fund from the Plan by Jan. 1, 2014, if
not earlier. In particular, Fender opined these three funds should
have been removed because they consistently and substantially
underperformed benchmark indices and peer universe medians, because
they were not recommended by Rocaton Investment Advisors LLC, as a
fiduciary to provide the Committee with investment advice, and
because they were retained as higher-cost mutual funds instead of
lower-cost investment vehicles. Fender also maintained the
Committee should not "have been satisfied with an average
investment product."
In all, Falberg claims the Defendants breached their duties of
loyalty and prudence by "retaining high-cost, poorly performing
mutual funds in the Plan" based on their "own selfinterest" and in
"disregard for participants." He also alleges that the Committee's
purported failure to claim fee rebates that supposedly were avail
to other plans violated ERISA's prohibited transaction
restrictions, and that Goldman Sachs breached its duty to monitor
the Retirement Committee.
The Defendants move for summary judgment on all claims. Falberg
separately moves for partial summary judgment only on the issues of
loss and loss causation. Also before the Court are Falberg's motion
to compel certain documents designated as privileged; the
Defendants' motion to strike certain opinions of Dr. Brian C.
Becker, Falberg's expert; and the Defendants' motion to compel
arbitration of certain class members.
First, Falberg's claim that the Defendants breached their duty of
prudence rests on a single factor: the Committee did not adopt an
IPS. He argues that a prudent fiduciary in the Defendants' shoes
would have "acted differently" by maintaining an IPS, and that,
because the Committee did not have an IPS, it had no criteria by
which to evaluate and monitor Plan investments, and therefore its
decisions relating to the GSAM funds were not the result of a
deliberative process.
In any event, Judge Ramos finds that Falberg does not point to any
evidence that an IPS would have caused the Committee to act
differently. Falberg does not dispute that in advance of Committee
meetings, Committee members received a packet of information from
Rocaton and reviewed those materials in preparation for the
meetings. He also does not dispute that Rocaton began each
quarterly meeting by presenting information about Plan performance
and that Committee members often heard presentations from
investment managers of current or prospective Plan investment
options.
Mr. Falberg's claim that the Committee did not engage in a prudent
process because it did not set out in writing an IPS is at best
speculation and as such is unavailing. Indeed, as Falberg's expert
Fender recognized, an opinion on whether an IPS might have improved
Plan performance would be "hindsight or hypothetical." Because
Falberg cannot show that a prudent fiduciary, in the Defendants'
position, would have acted differently, his breach of the duty of
prudence claim fails.
Next, Falberg raises four arguments in support of his claim that
the Defendants breached their duty of loyalty: (1) they failed to
acknowledge their conflicts of interest, (2) they retained the
challenged funds even though they were "outliers", (3) they gave
preferential treatment to the challenged funds, and (4) they
removed the funds only to protect themselves from litigation risk.
In all, Falberg argues the Defendants violated the duty of loyalty
by "succumbing to their conflicts and maintaining a different
standard for proprietary funds than for nonproprietary funds."
None of these arguments is supported by evidence sufficient to
defeat summary judgment, Judge Ramos finds. First, the mere
possibility that Committee members may have been influenced by a
desire to benefit Goldman Sachs is not enough to show a breach of
the duty of loyalty; Falberg has not pointed to any evidence
demonstrating the Committee "acted for the purpose" of advancing
Goldman Sachs' interests. As a result, his conflict of interest
argument cannot support a claim of the breach of the duty of
loyalty. Second, beyond the broad contention that the Defendants'
treatment of the GSAM funds overall creates an inference of
favoritism, Falberg does not point to any authority showing a
failure to expeditiously remove underperforming funds amounts to a
breach of the duty of loyalty.
Third, Falberg again cannot overcome the fact that in considering
these funds, as it did when it considered the challenged funds, the
Committee looked to and weighed a range of information beyond the
Rocaton ratings and was not obligated simply to defer to Rocaton's
ratings or its suggestions. Last, Falberg does not and cannot show
that the Committee's consideration of the litigation environment in
choosing to remove the challenged funds in any way amounts to a
breach of its duty of loyalty.
Because Falberg cannot point to any evidence showing a breach of
the duty of loyalty, he cannot defeat summary judgment on those
claims.
Mr. Falberg then argues the Committee's failure to collect fee
rebates, in the form of revenue sharing, on behalf of the Plan that
supposedly were available to other plans invested in GSAM mutual
funds resulted in a "prohibited transaction" under ERISA.
Specifically, he argues that the lack of rebates for the Plan
"placed Plan participants in a less favorable position than other
investors." The Defendants argue that they are exempt from any
violations of Section 1106 under the Department of Labor's
Prohibited Transaction Exemption 77-3.
Judge Ramos opines that Falberg cannot show that any difference in
treatment is traceable to some less favorable basis and not,
instead, to the fact that these plans simply did not use the same
recordkeeper or, if they did, did not open their accounts until
after April 1, 2009. In other words, the Defendants are right that
the Plan was treated no less favorably "than other comparably
situated plans." Accordingly, the Defendants are exempt, and
Falberg's prohibited transactions claim fails.
Mr. Falberg's claim that Goldman Sachs breached its duty to monitor
Plan fiduciaries is predicated on his allegation that the Committee
breached its fiduciary duties. Because this claim is derivative of
Falberg's other claims, Judge Ramos holds that it fails for the
same reasons. In any event, there is no evidence to support this
claim: Falberg does not suggest that the Committee members were
unqualified or failed to perform their duties.
Mr. Falberg separately brings a partial motion for summary judgment
on the issues of loss and loss causation. Specifically, he argues
that there is no dispute that (1) the Plan suffered losses as a
result of Defendants' use of the challenged GSAM funds and (2)
those losses were caused by the Defendants' decision to maintain
the funds in the Plan and the manner in which they were
maintained.
Because he finds that the Defendants did not breach any of their
fiduciary duties under ERISA, Judge Ramos does not reach questions
of loss and loss causation. As such, Falberg's motion for partial
summary judgment on these issues is denied.
For the reasons he set forth, Judge Ramos grants the Defendants'
motion for summary judgment and denies Falberg's motion for partial
summary judgment. In addition, Judge Ramos denies as moot Falberg's
motion to compel documents designated as privileged and the
Defendants' motions to strike expert opinions and to compel
arbitration of certain class members.
The Clerk of Court is respectfully directed to terminate the
motions, Docs. 131, 170, 174, 188, 195, and 213, and to close the
case. The Clerk of Court is further directed to restrict access to
the Opinion to the "selected party" viewing level.
A full-text copy of the Court's Sept. 14, 2022 Opinion & Order is
available at https://tinyurl.com/2zh7nmu3 from Leagle.com.
GOOGLE LLC: Deadline to File Claim in Photos Lawsuit Set Sept. 28
-----------------------------------------------------------------
Eligible Illinois residents have just one day left to submit their
claims as part of a multi-million dollar settlement in a
class-action lawsuit involving Google.
The lawsuit, which mirrors one recently settled with Facebook that
resulted in many residents receiving checks worth nearly $400 this
year, claimed the company violated the Illinois Biometric
Information Privacy Act by "collecting and storing biometric data
of individuals who, while residing in Illinois, appeared in a
photograph in the photograph sharing and storage service known as
Google Photos, without proper notice and consent."
A settlement agreement was reached in the case earlier this year
and now, eligible residents can file their claims. Google did not
respond to NBC 5's request for comment, but did not admit any
wrongdoing as part of the settlement agreement and denied all
claims made in the lawsuit.
So how much could eligible residents receive and when? Here's what
to know if you're planning to file a claim:
Who is eligible?
According to the settlement website, residents are eligible "if, at
any time between May 1, 2015 and April 25, 2022, you appeared in a
photograph in Google Photos while you were an Illinois resident."
When can I submit a claim and what is the deadline?
Eligible residents can submit a claim now through Sept. 24. All
claims must be submitted by that date to be eligible for a
payment.
For those wishing to object or exclude themselves from the
settlement, that deadline was Aug. 10.
A final approval hearing is slated for Sept. 28.
How do I submit my claim?
Those looking to submit a claim can do so here.
How much money could I get?
Those who are eligible will receive a portion of the $100 million
settlement fund, after court fees, costs and expenses are deducted.
But how much each person will get remains unclear.
"No one knows in advance how much each valid claim payment will be
until the deadline for submitting claims passes and the Court
awards the Fee and Expense Award and Service Payments," the
settlement website states. "Each Class Member who submits a valid
claim will receive an equal proportionate share of the Net
Settlement Fund."
Attorneys in the case estimate, based on their experience and
similar cases, that each claim could be worth between $200 and
$400.
When would I get my payment?
If the final approval is granted and any potential appeal process
is completed, eligible participants could receive their payments
within 90 days. The final approval hearing is set for 10:30 a.m. on
Sept. 28.
Attorneys warn, however, that even if the court approves the
settlement, there may still be appeals in the case.
"It is always uncertain whether and when appeals can be resolved,
and resolving them can take time," the website states.
What is the Illinois Biometric Information Privacy Act?
Illinois' Biometric Privacy Act prohibits private sector companies
and institutions from collecting biometric data from unsuspecting
citizens in the state or online, no matter where the business is
based. Data cannot be sold, transferred or traded. Unlike any other
state, citizens can sue for alleged violations, which has sparked
hundreds of David-and-Goliath legal battles against some of the
world's most powerful companies.
If a company is found to have violated Illinois law, citizens can
collect civil penalties up to $5,000 per violation compounded by
the number of people affected and days involved. No state
regulatory agency is involved in enforcement.
Since BIPA is an Illinois law, it only applies to state residents.
Which other companies are being accused of violating the Illinois
law?
So far, no company associated with the lawsuits surrounding the law
has admitted fault, though many have agreed to settlements.
Most recently, a federal judge in Illinois granted final approval
for a $92 million class-action lawsuit settlement between the
social media network TikTok and users of the platform, with
Illinois residents set to receive the largest share of the payout
due to BIPA.
A class-action lawsuit has also been brought against Snapchat's
parent company, accusing the social network of violating the act. A
$35 million settlement was recently announced in that case, though
a final approval hearing still has to take place.
Earlier this year, more than one million Illinois Facebook users
began receiving checks following a $650 million settlement in a
class-action suit alleging it violated residents' rights by
collecting and storing digital scans of their faces without
permission.
Microsoft and Amazon are also among the companies that have been
accused of violations. [GN]
GRANDSOUTH BANCORP: Monteverde & Assoc. Probes Securities Suit
--------------------------------------------------------------
Juan Monteverde, founder and managing partner of the class action
firm Monteverde & Associates PC (the "M&A Class Action Firm"), a
national securities firm rated Top 50 in the 2018-2021 ISS
Securities Class Action Services Report and headquartered at the
Empire State Building in New York City, is investigating:
GrandSouth Bancorporation (OTC:GRRB), relating to its proposed
acquisition by First Bancorp. Under the terms of the agreement,
GRRB shareholders will receive 0.910 shares of First Bancorp common
stock per share they own. Click here for more information:
https://www.monteverdelaw.com/case/grandsouth-bancorporation. It is
free and there is no cost or obligation to you.
About Monteverde & Associates PC
We are a national class action securities litigation law firm that
has recovered millions of dollars and is committed to protecting
shareholders from corporate wrongdoing. We were listed in the Top
50 in the 2018-2021 ISS Securities Class Action Services Report.
Our lawyers have significant experience litigating Mergers &
Acquisitions and Securities Class Actions. Mr. Monteverde is
recognized by Super Lawyers as a Rising Star in Securities
Litigation in 2013, 2017-2019, an award given to less than 2.5% of
attorneys in a particular field. He has also been selected by
Martindale-Hubbell as a 2017-2021 Top Rated Lawyer. Our firm's
recent successes include changing the law in a significant victory
that lowered the standard of liability under Section 14(e) of the
Exchange Act in the Ninth Circuit. Thereafter, our firm
successfully preserved this victory by obtaining dismissal of a
writ of certiorari as improvidently granted at the United States
Supreme Court. Emulex Corp. v. Varjabedian, 139 S. Ct. 1407 (2019).
Also, in 2019 we recovered or secured six cash common funds for
shareholders in mergers & acquisitions class action cases.
If you own common stock in any of the above listed companies and
wish to obtain additional information and protect your investments
free of charge, please visit our website or contact Juan E.
Monteverde, Esq. either via e-mail at jmonteverde@monteverdelaw.com
or by telephone at (212) 971-1341. [GN]
GRUMA CORP: Samperio Labor Suit Removed to C.D. California
----------------------------------------------------------
The case styled MIGUEL ANGEL SAMPERIO on behalf of himself and all
others similarly situated, Plaintiff v. GRUMA CORPORATION dba
MISSION FOODS, a Nevada corporation; and DOES 1 through 50,
inclusive, Defendants, Case No. 5:22-cv-00969-SVW-SP, was removed
from the Superior Court of the State of California, County of San
Bernardino, to the U.S. District Court for the Central District of
California on Sept. 7, 2022.
The Clerk of Court for the Central District of California assigned
Case No. 5:22-cv-01572 to the proceeding.
The Plaintiff's complaint purportedly asserts representative claims
on behalf of himself and similarly situated aggrieved non-exempt
employees who were employed in California directly by Defendant at
any time from one year and 65 days prior to the filing of the
initial complaint through the present, pursuant to the Private
Attorneys General Act, California Labor Code.
Gruma Corporation, dba Mission Foods, manufactures and distributes
food products. The Company offers corn and wheat tortillas, wraps,
sauces, naan, pita bread, chapattis, pizza bases, and other food
products.[BN]
The Defendant is represented by:
Dan M. Forman, Esq.
Wanja S. Guy, Esq.
CDF LABOR LAW LLP
707 Wilshire Boulevard, Suite 5150
Los Angeles, CA 90017
Telephone: (213) 612-6300
E-mail: dforman@cdflaborlaw.com
wguy@cdflaborlaw.com
HEARTY HEARTS: Ramirez Seeks Unpaid Home Health Aides' Overtime
---------------------------------------------------------------
HILDA RAMIREZ, on behalf of herself and all others similarly
situated, Plaintiff v. HEARTY HEARTS HOME HEALTH, LLC, and EMINELY
GARCED, Defendants, Case No. 1:22-cv-01542-CEF (N.D. Ohio, August
31, 2022) is a class and collective action complaint brought
against the Defendants for their alleged violations of the Fair
Labor Standards Act.
The Plaintiff has worked for the Defendant as a non-exempt Home
Health Aide (HHA) from 2016 through early August 2022.
According to the complaint, the Plaintiff and other similarly
situated HHAs frequently worked more than 40 hours in a single
workweek. However, the Defendant failed to pay them overtime
compensation at the rate of one and one-half times their regular
rates of pay for all hours worked in excess of 40 per workweek. In
addition, although the Defendants required them to go to the
Defendants' corporate office every Monday morning to turn in weekly
timesheets before going to their first client of the day, the
Defendants did not pay them for their intraday travel after arrival
at their first worksite of the day, and did not compensate them for
this working time, says the suit.
The Plaintiff brings this complaint seeking to recover unpaid wages
and commissions, for himself and all other similarly situated HHAs,
as well as liquidated damages in an equal amount, costs and
attorneys' fees incurred, and other relief as the Court deems
equitable and just.
Hearty Hearts Home Health, LLC provides home healthcare services
throughout Ohio. Eminely Garced is the owner, operator, and
principal manager of the Corporate Defendant. [BN]
The Plaintiff is represented by:
Scott D. Perlmuter, Esq.
4106 Bridge Avenue
Cleveland, OH 44113
Tel: 216-285-9991
Fax: (888) 604-9299
E-mail: scott@tittlelawfirm.com
I.C. SYSTEM: Seeks Leave to File Brief Sur-Reply in Weber Suit
--------------------------------------------------------------
In the class action lawsuit captioned as GAVRIEL WEBER, v. I.C.
SYSTEM, INC., Case No. 1:22-cv-02176-JGK (S.D.N.Y.), the Defendant
seeks leave to file a brief sur-reply to Plaintiff's Reply to its
Response in Support of Plaintiff Gavriel Weber's Motion for Class
Certification.
IC System is an accounts receivable management provider.
A copy of the Defendant's motion dated Sept. 1, 2022 is available
from PacerMonitor.com at https://bit.ly/3RIrSas at no extra
charge.[CC]
The Defendant is represented by
Joseph C. Proulx, Esq.
GOLDEN SCAZ GAGAIN, PLLC
1135 Marbella Plaza Drive
Tampa, FL 33619
Telephone: (813) 251-5500
Facsimile: (813) 251-3675
E-mail: jproulx@gsgfirm.com
IKEA US: Court Grants Bid for Summary Judgment in Dukich Class Suit
-------------------------------------------------------------------
In the case, DIANA and JOHN DUKICH, et al. v. IKEA US RETAIL LLC,
et al., Civil Action No. 20-2182 (E.D. Pa.), Judge Harvey Bartle,
III, of the U.S. District Court for the Eastern District of
Pennsylvania grants the motion for summary judgment filed by IKEA
US Retail LLC and IKEA North America Services LLC.
Plaintiffs Diana and John Dukich, Audra Andrews, Janet Bou, Ana
Medina, Samantha Meyers, Christine Ross, Chelsey Sinclair,
Christopher Slater, Keri Strauch, Jason Thompson, and Erin Wallace
all purchased furniture from Defendants IKEA US Retail and IKEA
North America Services LLC ("IKEA") that are the subject of a
recall issued by IKEA. They bring the putative class action under
the Class Action Fairness Act, 28 U.S.C. Section 1332(d), for
violation of the Pennsylvania Unfair Trade Practices and Consumer
Protection Law ("UTPCPL"), 73 Pa. C.S. Section 201-1 et seq., and
for negligence. They seek property damages related to the refund
process.
IKEA is a major retail chain that designs and sells furniture. On
June 28, 2016, IKEA announced, in connection with the U.S. Consumer
Product Safety Commission ("CPSC"), a voluntary recall for 29
million chests and dressers after learning about multiple deaths
and injuries from tip-over incidents involving these chests and
dressers. This recall included the MALM dresser line. The 2016
recall announcement stated that "the recalled chests and dressers
are unstable if they are not properly anchored to the wall, posing
a serious tip-over and entrapment hazard that can result in death
or injuries to children."
The 2016 recall advised consumers to stop using the recalled
products immediately and to put them in a place without
child-access. It stated that "consumers are entitled to a full
refund for chests and dressers manufactured between January 2002
and June 2016. Consumers with chests and dressers manufactured
prior to January 2002 will be eligible for a partial store credit."
The 2016 recall provided ways to contact IKEA to participate in the
recall or obtain additional information. It also described ways to
order and install a free wall-anchoring kit. Both the CPSC and IKEA
announced the recall on their websites.
Before announcing the 2016 recall, IKEA entered into a "corrective
action plan" ("CAP") with the CPSC on June 15, 2016. The CAP covers
all MALM and non-MALM chests and dressers in specified sizes that
do not comply with safety performance requirements. The remedies
listed in the CAP for the recall provide that IKEA will refund the
purchase price as follows: refund for the full purchase price of
the Subject Products (i) for all MALM Subject Products, and (ii)
for all non-MALM Subject Products manufactured after Jan. 1, 2002;
store credit for 50% of the purchase price for non-MALM Subject
Products manufactured before Jan. 1, 2002; or store credit for $50
if the original price cannot be identified.
The CAP stated that IKEA would notify customers by issuing a joint
press release with the CPSC, posting recall notices in stores,
posting recall notices on social media platforms using its "top
tier" social media accounts, sending recall notices to consumers
and retailers, and sending emails to purchasers of the subject
products.
After learning about more injuries and another death from a dresser
tip-over, IKEA re-announced the recall on Nov. 21, 2017 which
subjected 17.3 million dressers to recall and again instructed
consumers to "immediately stop using any recalled chest or dresser
that is not properly anchored to the wall and place it in an area
that children cannot access." The 2017 recall again provided
information on how to contact IKEA to obtain a refund or a
wall-anchoring kit.
Plaintiffs Diana and John Dukich ("the Dukich Plaintiffs")
purchased two four-drawer MALM dressers in or around April 2013.
John Dukich testified that they paid about a hundred dollars
apiece. On June 28, 2016, Diana Dukich emailed an article
discussing the 2016 recall announcement to herself and John Dukich.
The following year, on June 20, 2017, John Dukich contacted IKEA
via e-mail about the recall and asked what was needed to obtain a
full refund. He does not remember taking any other actions with
respect to the recall before that date.
On June 21, 2017, IKEA responded and told him to "immediately stop
using any recalled chest or dresser that is not properly anchored
to the wall and place in an area not accessible to children." It
advised that he could return his merchandise "as-is" to any IKEA
store and that "no receipt is required." The e-mail stated that
IKEA would provide 1) a full refund if the chest or dresser was
manufactured between Jan. 1, 2002 and June 28, 2016; 2) a store
credit for 50% of the original purchase price if the product was
manufactured before January 2002; or 3) a $50 store credit if the
date stamp is unidentifiable. John Dukich testified that he read
and understood the e-mail.
In August 2018, the Dukich Plaintiffs attempted to return their
dressers to an IKEA store and requested a refund. The store clerk
asked if they had a receipt or a sticker label for the dressers to
determine the date they were manufactured. They did not have
either. They were told they could not get a full refund and were
offered partial store credit or two wall-anchoring kits for their
dressers. The Dukiches refused the partial store credit, and they
returned home with their dressers and two wall-anchoring kits. They
stored the dressers in their garage until their attorneys in this
litigation took possession of them. After commencing the case, the
Dukich Plaintiffs identified credit card statements that
approximated the date they purchased the dressers and found that
their dressers qualified for a full refund.
Plaintiff Slater purchased a chest and a dresser that were subject
to the recall. IKEA sent two emails to Mr. Slater's personal email
address -- first on Aug. 16, 2017 and a second time on March 7,
2020 -- to notify him of the recall. Although he testified that he
did not recall receiving or reading either email, it is undisputed
that IKEA's records show that he opened the Aug. 16, 2017 email on
the same day and followed a link included in the email to the
recall website. Mr. Slater owned the chest and dresser for six
years, and he never tried to participate in the recall.
Plaintiff Ross purchased two MALM dressers that were subject to the
recall. Although Ms. Ross testified that she was not aware of the
recall until she learned about the litigation, she does not dispute
that IKEA sent an email notifying her of the recall on March 7,
2020 to the email address she provided IKEA. She never tried to
participate in the recall.
Plaintiff Thompson bought three dressers from IKEA in 2014. Mr.
Thompson did not have a receipt for this purchase, but two of the
dressers had date stamp labels showing that they were subject to
the recall. He testified that he learned of the recall through a
website promoting this litigation. Although he learned that he
qualified for compensation and searched for information about the
recall, he did not visit the IKEA website or discuss the recall
with anyone from the store. It is undisputed that IKEA sent an
email on August 16, 2017 notifying the Thompsons of the recall to
Mr. Thompson's wife on the personal email address that he provided
to IKEA. He never tried to participate in the recall.
Plaintiff Wallace purchased a MALM dresser in 2013 with a date
stamp showing that it is subject to the recall. Ms. Wallace
testified that she became aware of the recall from a website
promoting the litigation. It is not in dispute that IKEA sent an
email to her on July 14, 2016, which she first opened on the day it
was sent and opened again on July 16, 2016. She never tried to
participate in the recall.
The Defendants seek summary judgment on Count I, in which the
Plaintiffs bring a claim under the UTPCPL. The Plaintiffs allege
that IKEA violated the UTPCPL by failing to notify the Plaintiffs
of the recall and failing to comply with the terms of the recall.
Before the Court is the motion of IKEA for summary judgment against
the Dukich Plaintiffs, Ms. Ross, Mr. Slater, Mr. Thompson, and Ms.
Wallace. They also seek summary judgment on Count II, in which the
Plaintiffs allege that IKEA carried out the recall negligently. The
Defendants argue that the Dukich Plaintiffs were aware of the
remedies available to them under the CPSC approved recall and that
IKEA offered them the remedies to which they were entitled. They
assert that, as a result, IKEA did not engage in any misleading or
deceptive behavior, nor was IKEA negligent in how it carried out
its recall policy.
The Defendants argue that IKEA notified personally the remaining
Plaintiffs, Ms. Ross, Mr. Slater, Mr. Thompson, and Ms. Wallace,
about the recall by sending emails containing information about the
recall to their personal email addresses. These Plaintiffs all
concede that they received the notices. The Defendants assert that,
as a result, IKEA did not act deceptively or misleadingly, nor did
IKEA act negligently, in how it notified these Plaintiffs of the
recall.
Judge Bartle agrees that there is no evidence that IKEA violated
the UTPCPL. IKEA made no misleading or deceptive statements
promising the Dukich Plaintiffs a full refund. Likewise, there is
no evidence that IKEA acted negligently in failing to provide the
Dukich Plaintiffs a full refund.
Judge Bartle also finds that IKEA sent all the remaining four
Plaintiffs emails about the recall to their personal email
addresses. Although two of these Plaintiffs, that is Ms. Ross and
Mr. Thompson, did not open these emails, that is not the fault of
IKEA. IKEA provided adequate notice to these Plaintiffs. They have
provided no evidence that IKEA violated the UTPCPL by acting
misleadingly or deceptively and no evidence that IKEA acted
negligently.
Accordingly, the motion of Defendants for summary judgment in their
favor and against the Dukich Plaintiffs, Mr. Dukich, Ms. Ross, Mr.
Slater, Mr. Thompson, and Ms. Wallace is granted.
A full-text copy of the Court's Sept. 13, 2022 Memorandum is
available at https://tinyurl.com/yhupbu9c from Leagle.com.
INDIO, CA: Barragan Suit Seeks Administrative Staff's Unpaid Wages
------------------------------------------------------------------
CLEMENTINA BARRAGAN, individually and on behalf of all others
similarly situated, Plaintiff v. CITY OF INDIO and DOES 1 through
25, inclusive, Defendants, Case No. 5:22-cv-01623 (C.D. Cal.,
September 14, 2022) is a class action against the Defendants for
failure to compensate the Plaintiff and similarly situated
employees proper minimum wage and overtime pay for all hours worked
in excess of 40 hours in a workweek in violation of the Fair Labor
Standards Act.
The Plaintiff was employed by Defendant City of Indio as an
administrative assistant in the City's Community Development
Department. She began working at the City of Indio in 2021 through
a staffing agency. In late December 2021, the City made her a
direct offer of employment and she became a municipal employee in
January 2022. She left her employment with the City in March 2022,
says the Plaintiff.
City of Indio is a political subdivision of the State of
California, located in the County of Riverside. [BN]
The Plaintiff is represented by:
Armand R. Kizirian, Esq.
KIZIRIAN LAW FIRM, PC
550 North Brand Boulevard, Suite 1500
Glendale, CA 91203
Telephone: (818) 221-2800
Facsimile: (818) 221-2900
E-mail: armand@kizirianlaw.com
- and -
Michael H. Boyamian, Esq.
BOYAMIAN LAW, INC.
550 North Brand Boulevard, Suite 1500
Glendale, CA 91203
Telephone: (818) 547-5300
Facsimile: (818) 547-5678
E-mail: michael@boyamianlaw.com
INFOSYS TECHNOLOGIES: Neumark Testimony Excluded From Koehler Suit
------------------------------------------------------------------
In the case, BRENDA KOEHLER, KELLY PARKER, LAYLA BOLTEN, and
GREGORY HANDLOSER, Plaintiffs v. INFOSYS TECHNOLOGIES LIMITED INC.,
and INFOSYS PUBLIC SERVICES INC., Defendants, Case No. 13-cv-885-pp
(E.D. Wis.), Judge Pamela Pepper of the U.S. District Court for the
Eastern District of Wisconsin issued an order:
a. denying without prejudice the Plaintiffs' motion for class
certification;
b. denying without prejudice the Plaintiffs' motion for
partial summary judgment; and
c. granting the Defendant's motion to exclude the opinions of
the Plaintiff's expert witness, Dr. David Neumark.
The Defendants -- Infosys Technologies Limited, Inc. and its
wholly-owned subsidiary Infosys Public Services, Inc. (collectively
Infosys) -- are an international IT company headquartered in India.
The Plaintiffs are Caucasian American nationals who claim they
either were not hired, were not promoted, or were fired based on
the Defendants' "systematic pattern and practice of discriminating
against non-South Asian employees and in many instances replacing
them with South Asian employees."
The four Plaintiffs allege that they are Caucasian individuals of
American national origin, against whom Infosys made adverse hiring
or employment decisions on the basis of their race and national
original. They seek to represent a class of similarly situated
individuals.
The complaint alleges that the two entities that make up Infosys
are corporations organized and headquartered in India. The
corporations have many offices located in the United States that
are comprised predominately -- or in some cases, entirely -- of
employees of the South Asian race and of Indian, Bangladeshi, and
Nepalese national original. The complaint contains allegations
describing the Defendants' discriminatory treatment of each of the
Plaintiffs, and describing the Defendants' alleged employment
practices that cause a disparate impact against Caucasians.
In addition to the Plaintiffs' individual experiences, the
complaint contains allegations regarding the Defendants' purported
intent to discriminate on the basis of race. They allege that the
Defendants achieve their discriminatory objectives, at least in
part, by their practice of setting annual visa quotas to support
the growth of their United States offices, hiring South Asian
workers in sufficient numbers to meet those quotas, and securing
visas for foreign workers to enter and work in the U.S. The
complaint alleges that this practice results in annual visa quotas
of South Asian workers to be hired and employed within the U.S.,
irrespective of the fact that qualified workers exist in the U.S.
that Infosys could use to support its U.S. business.
The Court concluded that the second amended complaint stated
"causes of action for disparate treatment and disparate impact on
the basis of race and national original in violation of Title VII,
and for disparate treatment on the basis of race in violation of
Section 1981."
Discovery disputes began shortly after the scheduling conference
and the Court's issuance of the scheduling order. The Court agreed
to refer the discovery issues to a magistrate judge for mediation.
The parties worked with Magistrate Judge Nancy Joseph for about
four months -- unsuccessfully; Judge Joseph reported that mediation
had not "resulted in resolution or settlement of all the discovery
issues in this case." The Court held another status conference. The
Plaintiffs' counsel listed four categories of information the
Plaintiffs still sought; the defense counsel indicated that the
parties might be able to work through those issues if they had more
time to talk.
The Court scheduled another status conference. It also referred the
case to Magistrate Judge David Jones, hoping that he could assist
the parties in working through the discovery issues. Judge Jones
worked with the parties regularly -- often weekly -- for over two
years, stopping only when he left the Court.
The Plaintiffs filed a motion for partial summary judgment. The
Defendants filed their own motion for summary judgment. The
following day, the Plaintiffs filed a motion under Federal Rule of
Civil Procedure 23 for certification of three classes.
The motion defined the classes as follows:
A. Hiring Class: All individuals who are not of South Asian
race or Indian national origin who sought a position with Infosys
in the United States and were not hired from Aug. 1, 2009 through
the date of class certification.
B. Promotion Class: All individuals who are not of South
Asian race or Indian national origin who were employed by Infosys
in the United States between Aug. 1, 2009 and the date of class
certification for a period of at least 18 months and were not
promoted.
C. Termination Class: All individuals who are not of South Asian
race or Indian national origin who were employed by Infosys in the
United States between Aug. 1, 2009 and the date of class
certification and were terminated.
The Plaintiffs attached as an exhibit to both their motion for
partial summary judgment and the motion for class certification a
September 2016 expert report from Neumark. Neumark, a professor of
economics at the University of California-Irvine, described himself
as "a labor economist who haf done extensive research on labor
market discrimination, including methods for measuring and testing
for discrimination that have been adopted by many other
researchers."
Neumark stated that the Plaintiffs had hired him "as a statistical
expert to evaluate claims of discrimination at Infosys Technologies
Limited, Inc. with respect to its hiring, promotions, and
terminations in the United States." Specifically, he said that the
plaintiffs had asked him "to evaluate whether the data are
consistent with discrimination against applicants and employees at
Infosys who were non-South Asian or non-Indian (and,
correspondingly, who were white, black, Hispanic, or other
categories not in the South Asian or Indian groups)."
The Defendants simultaneously filed a motion to exclude Neumark's
opinion, their brief in opposition to the Plaintiffs' motion for
partial summary judgment, and their brief in opposition to the
Plaintiffs' motion to certify classes. Their brief in support of
the motion to exclude Neumark's opinion asserted that the
Plaintiffs' motion for partial summary judgment and their motion
for conditional class certification "depend entirely on the
opinions of their statistics expert, Dr. David Neumark." They
argued that the Court should strike Neumark's opinions and exclude
them from the case because his opinions were based on
"pseudoscience."
The Plaintiffs filed a brief in opposition to that motion, arguing
that Neumark is a "highly-qualified professor who performed
straightforward and reliable statistical analyses" and that his
statistical findings "are relevant to proving their prima facie
case under the International Brotherhood of Teamsters v. United
States, 431 U.S. 324 (1977) framework." They explained that after
seeing the Defendants' "attacks" on Neumark's methodologies,
Neumark "produced a short, supplemental report, addressing, among
other things," what the plaintiffs characterized as "ancillary
issues" raised by the Defendants.
The Defendants replied that faced with their critique of Neumark's
methodologies, the Plaintiffs had shifted from asserting that
Neumark's statistics proved discrimination to arguing that Neumark
had offered no opinion on causation and had opined only that the
disparities he observed could not have occurred by chance.
On June 11, 2020, the Court heard argument on the motion. After
advising the parties that it did not agree with either of their
interpretations of Adams v. Ameritech Services, Inc., 231 F.3d 414
(7th Cir. 2000), line 17 through 19, line 20, the Court heard
argument regarding Neumark's methodologies and analyses, line 2
through 64, line 12. It took the motion under advisement.
In the September 2016 report the Plaintiffs attached to their
motion for class certification, Dr. Neumark considered an Infosys
employee to be Indian or South Asian if (a) the employee was born
in India or South Asia, or (b) the employee's last name matched the
last name of another Infosys employee born in India or South Asia
and was not one of the 63 "Western" names removed from the list. He
considered an applicant to be Indian or South Asian if the
applicant's last name matched the last name of an Infosys employee
born in India or South Asia and was not one of the 63
"Western-sounding" names removed from the list. If an employee or
applicant did not meet one of the preceding criteria, that employee
or applicant was considered non-Indian or non-South Asian.
In his February 2017 report Neumark prepared after seeing the
Defendants' critiques of his methodology, he stated that he'd
rank-ordered the observations by the number of Infosys employees,
"so it is easy to look at the evidence for the states where Infosys
has the largest presence." Next, as to promotions, Neumark said
he'd modified his analysis "to exclude promotions that occurred
outside the United States," and that he had included only
individuals "employed at Infosys for a minimum of 18 months,
consistent with the class definition." For terminations, he
compared the rate of "Company Initiative" involuntary terminations
"for base employees, relative to all base employees, for
terminations occurring in the United States."
After discussing the purported flaws in Neumark's reports, the
Defendants turn to their legal argument. They begin by asserting
that the Court should not wait until after it decides the class
certification motion to decide whether to exclude Neumark's
opinions. They then argue that Neumark's opinion is not admissible
because it is not relevant, linking this to the requirement that an
expert's opinion must assist the trier of fact. They argue that
Neumark did not consider any variables other than race -- that he
did not eliminate any alternative explanations for the disparities
he observed and did not control for factors as obvious as, among
others, work history or job performance when analyzing termination
data.
The Defendants also argue that even if they are "incrementally"
relevant, Neumark's opinions are unreliable. And they argue that
Neumark provides no justification for limiting the labor market to
the United States. They say that Neumark's name recognition
methodology is flawed and unreliable. The Defendants also argue
that the Court cannot determine the error rate for Neumark's
name-matching methodology because it does not have one -- the
methodology was created for the case. Finally, they asserted that
Neumark's individual analyses were based on flawed assumptions.
Among other things, the Plaintiffs reiterate Neumark's
qualifications and assert that the Defendants haven't challenged
them. They argue that Neumark's opinion that the disparities could
not have occurred by chance is relevant in a pattern or practice
case brought under Teamsters. They urge the Court to look at what
Neumark did, rather than what he or any other expert might have
done. They also disagree that Neumark improperly defined the
relevant labor market. The Plaintiffs assert that Neumark's
supplemental report also corrects for errors in his termination
analysis, focusing only on the termination rates among base hire
employees.
In performing its gatekeeper role under Rule 702 and Daubert, the
district court must engage in a three-step analysis before
admitting expert testimony. It must determine whether the witness
is qualified; whether the expert's methodology is scientifically
reliable; and whether the testimony will 'assist the trier of fact
to understand the evidence or to determine a fact in issue. In
other words, the district court must evaluate: (1) the proffered
expert's qualifications; (2) the reliability of the expert's
methodology; and (3) the relevance of the expert's testimony. The
party seeking to introduce expert witness testimony bears the
burden of showing by a preponderance of the evidence that the
witness' testimony satisfies the Daubert standard.
Initially, Judge Pepper finds that despite his education,
experience and expertise in labor economics, Neumark has no
expertise in name recognition. There is no evidence that he was
qualified to create a method for determining whether someone is or
is not Indian or South Asian based on surname. The Plaintiffs have
presented no evidence that Neumark was qualified to identify an
employee's or applicant's race by name. In the area of identifying
an individual's race by name, Neumark's method does not pass muster
and he is not qualified as an expert.
Next, Judge Pepper holds that Neumark's failure to follow methods
he previously espoused renders his analyses so unreliable that they
should not be admitted. Because the only evidence upon which the
Plaintiffs rely to carry that burden is Neumark's statistical
analyses, those analyses must pass scrutiny under Daubert -- they
must be based on reliable methodology. The question of whether the
expert considered alternative variables is a component in
determining whether he utilized reliable methodology.
While Neumark's failure to consider alternate variables does not
render his analyses and opinions unreliable, his race
identification methodology bears none of the hallmarks of
reliability. If Neumark had used reliable methodology in reaching
his conclusions, those weaknesses might have gone to the weight a
factfinder would give the conclusions, but he did not use a
reliable methodology and the Plaintiffs have not come close to
demonstrating that he did.
Judge Pepper cannot conclude that Neumark's race identification
methodology was reliable. He used that methodology to determine the
race of incumbent employees and applicants and used the results to
conduct the comparative studies that resulted in the disparities he
identified in his report and upon which the Plaintiffs rely.
Having determined that Neumark was not qualified to determine the
race of Infosys employees or applicants by surnames and that the
methodology he used to do so was unreliable, Judge Pepper must
conclude that his analyses are not relevant under Daubert. Her
conclusion that Neumark's report must be excluded because it does
not pass muster under Daubert is not a condemnation of the
Plaintiffs' case or of Neumark, nor is it a prediction of how a
trier of fact might ultimately decide their claims.
Judge Pepper will grant the Defendants' motion to exclude Neumark's
expert opinions; she deems both the September 2016 and February
2017 reports and the analyses and opinions contained in them
inadmissible.
The Plaintiffs' motion for partial summary judgment is based
entirely on Neumark's analyses. Hence, Judge Pepper will deny that
motion without prejudice.
The Plaintiffs' motion for class certification explicitly relies on
Neumark's analysis to show numerosity and predominance, and it
likely ought to have done so for commonality. Judge Pepper will
also deny that motion without prejudice.
The Court's extreme delay in ruling on the motion to exclude
Neumark's opinions caused the parties to seek a hearing for the
purpose of determining whether they could do anything to assist the
court in making its decision. Judge Pepper's ruling renders that
motion moot.
The Plaintiffs' brief in opposition to the Defendants' motion for
summary judgment and its combined additional proposed findings of
fact and response to the Defendants' proposed findings of fact rely
on and are replete with reference to Neumark's analyses.
Given the Court's delay in ruling on the Daubert motion and the
impact this ruling has on the Plaintiffs' case, Judge Pepper will
give the parties an opportunity to digest this decision. The Court
will schedule a status conference to discuss with the parties
proposed next steps.
Based on the foregoing, Judge Pepper grants the Defendants' motion
to exclude the expert opinions of David Neumark. She denies without
prejudice the Plaintiffs' motion for partial summary judgment and
their motion for class certification. She denies as moot the
parties' joint motion for status conference. D
Judge Pepper orders the parties to appear for a telephonic status
conference on Nov. 10, 2022 at 1:30 PM. The parties are to appear
by calling the Court's conference line at 888-557-8511 and entering
access code 4893665#.
A full-text copy of the Court's Sept. 14, 2022 Order is available
at https://tinyurl.com/3eyt2fab from Leagle.com.
INTERTEK RESOURCE: Underpays Construction Staff, Work Suit Claims
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JOSEPH WORK, individually and on behalf of others similarly
situated, Plaintiff v. INTERTEK RESOURCE SOLUTIONS, INC.,
Defendant, Case No. 4:22-cv-02960 (S.D. Tex., August 31, 2022)
brings this complaint as a collective action to recover unpaid
overtime and other damages against the Defendant pursuant to the
Fair Labor Standards Act.
The Plaintiff has started working for the Defendant as a
Construction Planner in September 2013.
The Plaintiff claims that he and other similarly situated
construction employees were typically scheduled for 12-hour shifts
by the Defendant. In fact, the Plaintiff regularly worked at least
80 hours in a work week. However, the Defendant did not pay them
their lawfully earned overtime compensation at the applicable
overtime rate in accordance with the FLSA. Instead, they were paid
a flat daily rate only regardless of the number of hours they
worked, says the Plaintiff.
Intertek Resource Solutions, Inc. is an industry leader in testing,
inspecting, and certifying products, construction, and projects
“with more than 46,000 employees locations in over 100
countries” including the U.S. and in Texas. [BN]
The Plaintiff is represented by:
Michael A. Josephson, Esq.
Andrew W. Dunlap, Esq.
Richard M. Schreiber, Esq.
JOSEPHSON DUNLAP LLP
11 Greenway Plaza, Suite 3050
Houston, TX 77005
Tel: (713) 352-1100
Fax: (713) 352-3300
E-mail: mjosephson@mybackwages.com
adunlap@mybackwages.com
rschreiber@mybackwages.com
- and -
Richard J. (Rex) Burch, Esq.
BRUCKNER BURCH PLLC
11 Greenway Plaza, Suite 3025
Houston, TX 77046
Tel: (713) 877-8788
Fax: (713) 877-8065
E-mail: rburch@brucknerburch.com
JACKSON, MS: Fails to Provide Clean Water, Sterling Suit Alleges
----------------------------------------------------------------
PRISCILLA STERLING; RAINE BECKER; SHAWN MILLER; and JOHN BENNETT,
individually and on behalf of all others similarly situated,
Plaintiffs v. THE CITY OF JACKSON, MISSISSIPPI; CHOKWE A. LUMUMBA;
TONY YARBER; KISHIA POWELL; ROBERT MILLER; JERRIOT SMASH; SIEMENS
CORPORATION; SIEMENS INDUSTRY, INC.; and TRILOGY ENGINEERING
SERVICES LLC, Defendants, Case No. 3:22-cv-00531-KHJ-MTP (S.D.,
Miss., Sept. 16, 2022) is an action against the Defendants for
failure to provide clean water.
According to the complaint, the City of Jackson's water supply has
been neglected for decades, culminating in its complete shutdown in
August 2022, leaving over 150,000 residents, 82.5% of whom are
Black and over 24% are living in poverty, without access to running
water. These residents lack more than just drinking water, or water
for making powdered baby formula, cooking, showering, or laundry.
During the long period where the city pipes had no water
pressure—and were unable to facilitate the flow of water,
residents of Jackson could not flush their toilets for days at a
time, says the suit.
Allegedly, the Plaintiffs were poisoned by lead and other
contaminants released into Jackson's drinking water as a result of
the Defendants' conscience, shocking conduct and deliberate
indifference. The Plaintiffs assert claims for personal injuries
based on Defendants' deprivation of the Plaintiffs' rights to
bodily integrity protected by the Due Process Clause of the
Fourteenth Amendment to the United States Constitution.
CITY OF JACKSON is the capital and most populous city of the U.S.
State of Mississippi. [BN]
The Plaintiffs are represented by:
Robert L. Gibbs, Esq.
Gibbs Travis PLLC
210 East Capitol Street, Suite 1801
Jackson, MS 39201
Telephone: (601) 487-2640
Facsimile: (601) 366-4295
Email: rgibbs@gibbstravis.com
- and -
Mark P. Chalos, Esq.
Kenneth S. Byrd, Esq.
LIEFF CABRASER HEIMANN & BERNSTEIN, LLP
222 2nd Avenue South, Suite 1640
Nashville, TN 37201-2379
Telephone: (615) 313-9000
Facsimile: (615) 313-9965
Email: mchalos@lchb.com
kbyrd@lchb.com
- and -
Tiseme G. Zegeye, Esq.
Jacob H. Polin, Esq.
Amelia A. Haselkorn, Esq.
LIEFF CABRASER HEIMANN & BERNSTEIN, LLP
275 Battery Street, 29th Floor
San Francisco, CA 94111-3339
Telephone: (415) 956-1000
Facsimile: (415) 956-1008
Email: tzegeye@lchb.com
jpolin@lchb.com
ahaselkorn@lchb.com
- and -
Stuart C. Talley, Esq.
KERSHAW TALLEY BARLOW, P.C.
401 Watt Avenue, Suite 1
Sacramento, CA 95864
Telephone: (916) 779-7000
Email: stuart@ktblegal.com
- and -
Larry Moffett, Esq.
LAW OFFICE OF LARRY D. MOFFETT PLLC
P.O. Box 1418
39 CR 231
Oxford, MS 38655
Telephone: (662) 298-4435
Email: larry@larrymoffett.com
JADE FARM: Refuses to Pay Legally Required OT Wages, Toxqui Says
----------------------------------------------------------------
JOSE LUIS TOXQUI, on behalf of himself and others similarly
situated v. THE JADE FARM LLC d/b/a JUE LAN CLUB, NAOMI RAM,
MOHAMMAD ALI AMANOLLAHI, and ANYA ARGWELLO, Case No. 1:22-cv-07899
(S.D.N.Y., Sept. 15, 2022) sues over the Defendants' decision,
policy, plan and common policies, programs, practices, procedures,
protocols, routines, and rules willfully failing and refusing to
pay the legally required overtime wage for all hours worked over 40
hours in a workweek, and willfully misappropriating the Plaintiff's
tips.
The Plaintiff brings the First and Second Claims for Relief as a
collective action pursuant to Fair Labor Standards Act (FLSA)
Section 16(b), 29 U.S.C. section 216(b), on behalf of all service
employees, other than service managers, employed by Defendants at
the Club on or after the date that is three years before the filing
of the Original Complaint in this case.
Jue Lan Club is a high-end restaurant with an all-star list of
regular customers that come to party. The Club is extremely
accommodating to these high-end patrons, which include NBA players
such as Carmelo Anthony and James Harden and Hip Hop stars like
Sean "Diddy" Combs and Nas. Apart from its reputation for high end
party services, the Jue Lan Club is a hot bed of abusive, violent,
and racist behavior.
Specifically, the owner and manager of the club, the Defendant
Naomi Ram, violently harasses and demeans her employees based on
their race. On August 18, 2022, the Defendant Ram ordered
Plaintiff, a Mexican employee who worked as a bar back and who
speaks little to no English, into the back office at the Club and
proceeded to physically assault him -- punching him in the face and
chest -- and to verbally harass, demean, and humiliate him.
Specifically, Defendant Ram screamed into Plaintiff’s face: "you
little fucking Mexican illegal pieces of shit like you shouldn't
fuck with people who fucking have money and fucking who know
fucking shit." After screaming at Plaintiff, during which she
physically assaulted him, for over twenty minutes, she fired
Plaintiff and had the police escort Plaintiff out of the Club, says
the suit.
As a result, Defendant Ram has caused Plaintiff to suffer severe
emotional distress and significant psychological harm, the suit
alleges.[BN]
The Plaintiff is represented by:
D. Maimon Kirschenbaum
JOSEPH KIRSCHENBAUM LLP
32 Broadway, Suite 601
New York, NY 10004
Telephone: (212) 688-5640
Facsimile: (212) 688-2548
JAG CONTRACTORS: Fails to Pay Overtime Wages, Jimenez et al. Claim
------------------------------------------------------------------
PEDRO JIMENEZ and ESTANISLAO RIOS, individually and on behalf of
themselves and others similarly situated, Plaintiffs v. J A G
CONTRACTORS INC., JOSUE GUZMAN, and HENSEL PHELPS DEVELOPMENT,
L.L.C., Defendants, Case No. 1:22-cv-00994 (E.D. Va., August 31,
2022) bring this collective and class action complaint alleging the
Defendants of willful and intentional violations of the Fair Labor
Standards Act and the Maryland Wage Payment and Collection Law.
The Plaintiffs were employed by the Defendants as construction
workers at various locations, including the Bethesda Marriot
Project. Plaintiff Rios has worked for Defendant JAG from
approximately 2019 through 2021 while Plaintiff Jimenez was from
approximately 2021 through 2022.
The Plaintiffs claim that they and other similarly situated
construction workers typically worked more than 40 hours per
workweek. However, the Defendants did not compensate them with a
overtime premium for their hours worked in excess of 40 per
workweek. Allegedly, the Defendants improperly classified them as
independent contractors. In addition, the Defendants failed to give
them their final checks, thereby failing to compensate them for all
hours worked, say the Plaintiffs.
The Plaintiffs seek all unpaid wages, plus an additional equal
amount as liquidated damages, pre-judgment interest, litigation
costs and disbursements together with reasonable attorneys' fees
and other associated costs, and other relief as the Court may deem
just and proper.
JAG Contractors is a construction company based in Virginia that
engages in the construction business in Maryland, Virginia, and the
District of Columbia. Josue Guzman is the principal owner of JAG
Contractors. Hensel Phelps Development, L.L.C. is a general
contractor based in Colorado that engages in the construction
business in Maryland, Virginia, and the District of Columbia. [BN]
The Plaintiffs are represented by:
Rachel Nadas, Esq.
Matthew K. Handler, Esq.
HANDLEY FARAH & ANDERSON PLLC
200 Massachusetts Ave., NW - Seventh Floor
Washington, DC 20001
Tel: 202-899-2991
E-mail: rnadas@hfajustice
- and -
Matthew B. Kaplan, Esq.
THE KAPLAN LAW FIRM
1100 N Glebe Rd, Suite 1010
Arlington, VA 22201
Tel: (703) 665-9529
E-mail: mbkaplan@thekaplanlawfirm.com
KANDI TECHNOLOGIES: Court Trims Claims in Venkataraman Class Suit
-----------------------------------------------------------------
In the case, SRINIVASAN VENKATARAMAN, Plaintiff v. KANDI
TECHNOLOGIES GROUP, INC., et al., Defendants, Case No. 20 Civ. 8082
(LGS) (S.D.N.Y.), Judge Lorna G. Schofield 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 Second Amended
Complaint.
Plaintiff Venkataraman, individually and purportedly on behalf of
all others similarly situated, brings the action alleging
violations of (1) Section 10(b) of the Exchange Act, 15 U.S.C.
Section 78j(b), and Rule 10b-5 by Defendants Xiaoming Hu, Cheng
Wang, Bing Mei, Liming Chen, Jerry Lewin and Henry Yu
(collectively, the "Individual Defendants") and Kandi and (2)
Section 20(a) of the Exchange Act by the Individual Defendants. The
Plaintiff's Revised Amended Complaint was dismissed with leave to
amend.
Kandi, a Delaware corporation, designs, manufactures and
distributes electric vehicles ("EVs") and off-road vehicles in the
People's Republic of China and internationally. Its shares trade on
the NASDAQ under the ticker symbol "KNDI." The Second Amended
Complaint ("SAC") asserts claims on behalf of a putative class of
shareholders who purchased Kandi stock during the period June 10,
2015, to March 13, 2017.
During the Class Period, Defendant Hu was the CEO, President and
Chairman of the Board at Kandi. Defendant Wang served as Kandi's
CFO from May 1, 2015, until Nov. 14, 2016, and Defendant Mei
succeeded Wang as CFO from Nov. 14, 2016, until Jan. 29, 2019.
Defendants Chen, Lewin and Yu each sat on Kandi's Board of
Directors and served on its Audit Committee during the Class
Period.
Before, during and apparently after the Class Period, Kandi's
financial statements failed to disclose the full extent of Kandi's
related-party transactions. In March 2013, Kandi entered into a
joint venture (the "JV") of which it owned 50%. Kandi sold parts to
the JV, which used them to manufacture EVs. The JV then sold
vehicles to Zhejiang ZuoZhongYou Electric Vehicle Service Co., Ltd.
("Service Company"), which sold and leased the vehicles. Kandi
owned 9.5% of the Service Company, and Hu owned another 13%. At the
time, the Chinese government made subsidies available to both
producers and purchasers of EVs, so through the JV and Service
Company, Kandi was able to "double dip."
Kandi's Form 10-K for the year ended Dec. 31, 2014 was filed on
March 16, 2015, prior to the commencement of the Class Period. The
only related-party transactions reported in the 2014 10-K were with
"Kandi USA Inc. carrying trade name of Eliteway" amounting to
$2,981,944, $6,906,807 and $5,297,548, for the years 2014, 2013 and
2012, respectively. The 2014 10-K also disclosed a policy regarding
the reporting of related-party transactions and stated that Kandi's
internal financial reporting controls were effective. Kandi's 2014
10-K included a certification by Hu pursuant to the Sarbanes-Oxley
Act of 2002 ("SOX") of the accuracy of the 10-K, including
disclosure of any fraud or significant deficiencies or material
weaknesses in internal controls.
On Aug. 10, 2015, Kandi filed its Q2 2015 Form 10-Q with the SEC.
That filing was signed by Hu and Wang and attached SOX
certifications from Hu and Wang. The 2Q 2015 10-Q reported Kandi's
related party transactions and stated that there were no changes in
cashflow attributable to related-party transactions, nor in the
company's internal controls. Kandi's 3Q 2015 10-Q, filed on
November 9, 2015, included the same statements, signatures and SOX
certifications.
Kandi's 2015 10-K, filed on March 14, 2016, also stated that
Kandi's "internal controls over financial reporting were effective
as of December 31, 2015" and included SOX certifications from Hu
and Wang. Prior to that filing, in a meeting between Kandi's
management and auditor, Kandi identified both Kandi USA and the
Service Company as related parties. Kandi stated that it engaged in
no related-party transactions with Kandi USA in 2015, but it had
engaged in such transactions, mainly battery sales, with the
Service Company. The only related-party transactions disclosed in
the 2015 10-K, however, were the 2014 and 2013 transactions with
Kandi USA, as previously reported in the 2014 10-K.
On March 22, 2016, Kandi's Audit Committee approved related-party
transactions with the Service Company totaling $42,032,060 and
authorized Kandi to engage in further related-party transactions
with the Service Company throughout the rest of 2016. In an August
1, 2016, meeting, Kandi and its auditor discussed related-party
transactions with the Service Company totaling $4 million in sales
and $11 million in receivables. They also discussed the fact that
the Chinese government had decided to delay subsidy payments to the
JV. There was a discussion about reducing Kandi's reliance on those
subsidies.
In September 2016, the Chinese government announced an end to the
subsidies, after an investigation into companies structuring their
operations to take advantage of subsidies for both purchasers and
producers of EVs. Throughout 2016, Kandi filed its 1Q, 2Q and 3Q
10-Qs with the SEC, each of which was signed by Hu and Wang,
included Hu and Wang's SOX certifications and disclosed no changes
in internal controls. There is no allegation that those 10-Qs said
anything about related-party transactions.
On March 13, 2017, the last day of the Class Period, Kandi filed a
Form 8-K disclosing that its financial statements for 2014, 2015
and the first three quarters of 2016 would need to be restated. The
8-K reported that, while Kandi did not intend to restate its
quarterly reports for 2014 and 2015, they should no longer be
relied upon. The 8-K stated that Kandi's restatements would include
"corrections to the classification of notes receivable and notes
payable in the Company's statements of cash flow," "revisions to
separately identify certain related party accounts on the face of
the Balance Sheets and the Consolidated Statements of Income (Loss)
and Comprehensive Income (Loss)" and changes to its accounting for
its equity investment in a certain joint venture company. The 8-K
also stated that the restatements "will have no effect on the net
income of the Company as reported in the Previously Issued
Financial Statements."
After the announcement of this news, Kandi's share price fell $0.30
per share, or approximately 6%, from its prior closing price. On
March 16, 2017, Kandi filed its 2016 10-K, in which it restated its
financial results as previously announced and admitted that there
were material weaknesses in its internal controls. One year later,
when Kandi filed its 2017 10-K on March 16, 2018, Kandi disclosed
that the material weaknesses in financial controls had "existed as
of Dec. 31, 2015," and "had not yet been fully remediated as of
Dec. 31, 2017."
On Nov. 30, 2020, Hindenburg Research published a report titled
"Kandi: How This China-Based NASDAQ Listed Company Used Fake Sales,
EV Hype to Nab $160 Million From U.S. Investors." The Report, among
other things, opines that nearly 64% of Kandi's "last twelve months
(LTM) sales have been to undisclosed related parties." In response
to the Hindenburg Report, Defendant Hu released a letter that
responded to some, but not all, of the Report's opinions and
assertions.
The Defendants now move to dismiss the Second Amended Complaint
("SAC") pursuant to Federal Rules of Civil Procedure 12(b)(6) and
9(b) and the Private Securities Litigation Reform Act ("PSLRA"), 15
U.S.C. Section 78u-4(b)(2).
Judge Schofield opines that all but a few of the many alleged
misstatements identified in the SAC fail because they are barred by
the statute of repose, or because the SAC does not allege that the
Plaintiff relied on them or that they were false. First, many of
the alleged statements were made before June 10, 2015. Second, of
the alleged misstatements in the class period, several appear to
have been made only in internal meetings or to Kandi's auditor.
Third, the statements from Kandi's 2017 and 2018 10-Ks referenced
in the SAC are corrective in nature and not alleged to have been
false, even though Plaintiff alleges that they are evidence of
earlier statements' falsity. Fourth, the Hindenburg Report
references some potentially false statements that apparently were
made within approximately one year of the report's issuance on Nov.
30, 2020, but the SAC does not allege with specificity what those
statements were, when they were made, by whom, etc. Any claims as
to those statements thus fail to meet Rule 9(b)'s pleading
standard.
However, the SAC sufficiently and specifically alleges that the
statements about related-party transactions during the class period
were false to the extent they concealed transactions with the
Service Company. Whether the Defendants knew of their falsity when
making the statements is the scienter question, not the falsity
question.
The Plaintiff's opposition to the Defendants' motion suggests that
other inaccuracies identified in Kandi's restatement of financial
results are actionable misstatements. In restating its financials,
Kandi acknowledged that it had erred in "classification of notes
receivable and notes payable" and "accounting for the Company's
equity investment in the JV Company." But the SAC alleges only that
those issues were identified in the restatement and does not allege
any of the specific, false statements about those accounting issues
that the restatement addressed. That is insufficient to state a
claim under Rule 9(b).
Only two categories of alleged misstatements are sufficiently
viable to require analysis of scienter: statements concerning (1)
related-party transactions with the Service Company and (2)
material weaknesses in internal controls. Judge Schofield opines
that the SAC alleges facts supporting a "strong inference of
scienter" with respect to the first category, related-party
transactions, and the second, internal controls, to the extent
material weaknesses pertained to reporting of related-party
transactions. The SAC does not sufficiently allege scienter as to
any other alleged material weaknesses, because the SAC does not
allege what other weaknesses existed, how any person would or
should have known about them or why they would seek to conceal
them.
The SAC alleges the requisite strong inference of scienter as to
each of the Defendants except for Defendant Mei. It alleges that
Mei joined Kandi as CFO after all the culpable conduct of 2015 and
2016 had taken place and shortly before Kandi began the process of
restating its prior financials. The SAC contains no substantive
allegations about Mei whatsoever. To the extent any alleged
misstatements were made on Mei's watch according to the Hindenburg
Report, they are not alleged with specificity in the SAC.
The Defendants' misstatements during the Class Period -- that is,
within the applicable five-year statute of repose -- are not barred
by the two-year statute of limitations, Judge Schofield opines. The
Defendants argue that a reasonably diligent plaintiff would have
discovered all the facts constituting the alleged violation on
March 16, 2017, the date on which Kandi announced the restatement
of its financials and that another securities fraud action had been
filed against Kandi. But "it is the Defendants' burden to show how
these events did alert or should have alerted the Plaintiff to
discover facts with sufficient detail and particularity to
demonstrate each element of the alleged violations, including the
scienter of each Defendant. The events cited by the Defendants are
no more than storm warnings, however. While they may be useful,
these events do not disclose information concerning the Defendants'
scienter, and thus plainly do not trigger the statute of
limitations."
Finally, the SAC's Second Claim pleads a Section 20(a) claim
against Defendants Hu, Chen, Lewin, Yu and Wang in relation to the
Section 10(b) claim. The Defendants' only arguments in opposition
to the Section 20(a) claim are that there is no viable primary
claim and that no Individual Defendant can be a "culpable
participant" in the fraud because scienter is not sufficiently
pleaded. Because the SAC pleads a primary violation under Section
10(b) as to Defendants Hu, Chen, Lewin, Yu and Wang, the Section
20(a) claim also survives as to those Defendants. Because the SAC
contains no substantive allegations about Defendant Mei's
culpability, the Section 20(a) claim is dismissed as to Mei.
For these reasons, Judge Schofield grants in part and denies in
part the Defendants' motion to dismiss. The Plaintiff's Section
10(b) claim as to Defendants Kandi, Hu, Chen, Lewin, Yu and Wang
survives to the extent it is based on alleged misstatements about
related-party transactions, including general statements about the
accuracy of financial statements, disclosure of fraud and the
adequacy of internal controls only to the extent the alleged
misstatements pertain to related-party transactions. The
Plaintiff's Section 20(a) claim against Defendants Hu, Chen, Lewin,
Yu and Wang survive to the same extent based on the surviving
Section 10(b) claim. The Plaintiff's Section 10(b) and Section
20(a) claims are dismissed to the extent they rely on any other
alleged misstatements identified in the SAC. All claims against
Defendant Mei are dismissed.
The Clerk of Court is respectfully directed to close the motion at
Docket Number 57 and to terminate Bing Mei as a Defendant.
A full-text copy of the Court's Sept. 13, 2022 Opinion & Order is
available at https://tinyurl.com/4u63utbv from Leagle.com.
KELLER WILLIAMS: Bailey Sues Over Civil Rights, ADA Violations
--------------------------------------------------------------
JACOB BAILEY and STEVEN BANASIAK, on behalf of themselves and all
others similarly situated, Plaintiffs v. KELLER WILLIAMS REALTY
INC. a/k/a KELLER WILLIAMS REALTY INTERNATIONAL, SAFE HARBOR REALTY
OF PORT ST. LUCIE, LLC d/b/a KELLER WILLIAMS REALTY OF PORT ST.
LUCIE, and SAFE HARBOR REALTY OF MARTIN COUNTY, LLC d/b/a KELLER
WILLIAMS OF THE TREASURE COAST, Defendants, Case No.
2:22-cv-14324-JEM (S.D. Fla., September 14, 2022) is a class action
against the Defendants for violations of the Title VII of the Civil
Rights Act of 1964 and the Americans with Disabilities Act.
According to the complaint, the Plaintiffs and similarly situated
male employees are allegedly subjected to gender discrimination
following the implementation of Women Empowered (WE) program at
Keller Williams International. In some franchises, such as
Defendants Safe Harbor PSL and Safe Harbor Martin, instead of
empowering women, WE was creating discrimination against men. Mr.
Bailey was being passed over for a position for which he was more
qualified than the female employee who was promoted. Meanwhile, Mr.
Banasiak was diagnosed with congestive heart failure and was placed
under around the clock cardiac care. However, despite his
condition, Defendant Safe Harbor Martin failed to accommodate his
disability and pressured him to work. The Plaintiffs were
constructively discharged and submitted their resignations on
August 17, 2020, says the suit.
Keller Williams Realty Inc., also known as Keller Williams Realty
International, is a real estate company headquartered in Austin,
Texas.
Safe Harbor Realty of Port St. Lucie, LLC, doing business as Keller
Williams Realty of Port St. Lucie, is a real estate company,
headquartered in Port St. Lucie, Florida.
Safe Harbor Realty of Martin County, LLC, doing business as Keller
Williams of the Treasure Coast, is a real estate company,
headquartered in Florida. [BN]
The Plaintiffs are represented by:
Beth Coke, Esq.
COKE EMPLOYMENT LAW
131 N. 2nd Street, Suite 204
Fort Pierce, FL 34950
Telephone: (772) 252-4230
Facsimile: (772) 252-4575
E-mail: Beth@cokeemploymentlaw.com
KELLOGG SALES: Kennard's 1st Amended Suit Dismissed With Prejudice
------------------------------------------------------------------
In the case, ANGELA KENNARD, Plaintiff v. KELLOGG SALES COMPANY,
Defendant, Case No. 21-cv-07211-WHO (N.D. Cal.), Judge William H.
Orrick of the U.S. District Court for the Northern District of
California grants Kellogg's motion to dismiss the First Amended
Complaint with prejudice.
The Plaintiff alleges in her class action complaint that Kellogg
misleadingly and illegally labels specific MorningStar Farms
"VEGGIE" products, including varieties of "VEGGIE BURGERS," "VEGGIE
DOGS," "VEGGIE CHIK'N," "VEGGIE MEAL STARTERS," "VEGGITIZERS," and
"VEGGIE BREAKFAST," collectively "Veggie Products." She asserts
that Kellogg violates: (i) California's Consumer Legal Remedies Act
("CLRA," Cal. Civ. Code Section 1750 et seq.); (ii) California's
False Advertising Law ("FAL," Cal. Bus. & Prof. Code Section 17500
et seq.); (iii) California Unfair Competition Law ("UCL," Cal. Bus.
& Prof. Code Section 17200 et seq.); and (iv) breach of Express and
Implied Warranties.
In essence, the Plaintiff contends that "reasonable consumers" --
as demonstrated by consumer survey evidence and the customary usage
of the term "veggie" by Kellogg and other retailers and restaurants
-- understand the term "veggie" as used by Kellogg to mean that the
products are "made primarily of vegetables." She alleges that
Kellogg's use of the term VEGGIE in the Veggie Products' packaging
"is false or at least highly misleading because ingredients in the
Veggie Products are not primarily vegetables Instead they are
predominantly cheaper, non-vegetable ingredients like wheat gluten,
oil, and corn syrup solids." She states that consumers "understand
ingredient 'call-outs' in product names for meat-alternatives" --
like the use of VEGGIE by defendant means -- "to signal" that the
Veggie Products are primarily made from vegetables "rather than
from other non-vegetable plant-based ingredients."
Kellogg moved to dismiss the initial complaint, arguing that no
reasonable consumer would be misled by the use of the term VEGGIE
in the Veggie Products because reasonable consumers understand that
term -- whether considered by itself or in connection with other
information on the Veggie Products' packaging -- as referring to
vegetarian/meat substitute foods and not a reference or "call out"
to being primarily made of "vegetables" as opposed to grains and
oils.
After hearing oral argument, Judge Orrick agreed with Kellogg and
dismissed the complaint with leave to amend. He gave the Plaintiff
leave to amend so that she could add to her complaint "facts to
support her allegation and shows why a significant portion of the
general consuming public acting reasonably could be misled into
thinking the challenged products were made from vegetables as
opposed to grains, legumes, and oil."
In her FAC, the Plaintiff asserts the same causes of action based
on the same central theory: Kellogg's use of VEGGIE to describe its
meat substitute products is inherently misleading as it implies to
the reasonable consumer that vegetables are the primary ingredient,
as opposed to oil, legumes, and grains. The one significant
addition to the FAC is reference to consumer surveys commissioned
for the case. The surveys, according to the Plaintiff, demonstrate
that California consumers are interested in purchasing
"meat-alternative" products and those consumers are "misled" by the
Veggie Products' VEGGIE labeling into believing the products they
are purchasing are "primarily made of vegetables rather than other
non-vegetable plant-based ingredients."
The Plaintiff also has added allegations regarding Kellogg's'
trademark registrations to support her contention that "Veggie"
means vegetables as opposed to mere meat-alternatives. She notes
that in a "previous version" of the MorningStar Farms' website,
Kellogg described MorningStar Farms products as being made with
"sun-ripened vegetable goodness" and offering the "widest selection
of full flavored veggie foods available." And she cites one
advertisement that "veggies look good with grill marks" showing
grilled MorningStar Farms "Grillers." Finally, she points to a
product description written by one retailer (BJ's Wholesale Club),
which describes MorningStar Farms' "Veggie Chick'n Nuggets" as
"Vegetable Nuggets," and one restaurant chain, which describes
MorningStar Farms' veggie burgers as a "vegetable patty."
First, Judge Orrick agrees that the survey cannot save the
Plaintiff's claim given the facial deficiencies, as well as the
lack of any support for her preferred definition of VEGGIE on the
Products' packaging. The Plaintiff's survey asked the wrong
question -- what plant-based ingredients the consumers believed
were primarily in a product. The right question is whether use of
the term VEGGIE in light of the types of products challenged and
those Products' packaging conveyed that the Veggie Products were
meat-alternative or whether those sources conveyed the challenged
Products were made with vegetables as opposed to other ingredients.
.
Finally, assuming that the use of the term VEGGIE is ambiguous, any
ambiguity is dispelled by the packaging, which describes the
products as free of meat and contains photos of products that do
not obviously contain vegetables or represent that they contain any
plant-based ingredient in particular. And any ambiguity is also
easily dispelled by reviewing the ingredient list on the packaging.
Because there is no deceptive act to dispel, the Ninth Circuit case
most heavily relied on by the Plaintiff is inapposite. The case is
closer to Ebner v. Fresh, Inc., 838 F.3d at 966, where there is "no
deceptive act to be dispelled" and disclosures elsewhere on the
packaging (i.e., the ingredient list) defeat the deception claim
where that list eliminates the ambiguity, citing Gudgel v. Clorox
Co., 514 F.Supp.3d 1177, 1187 (N.D. Cal. 2021).
The Plaintiff separately alleges that Kellogg's use of VEGGIE
violates various laws and regulations, constituting illegal
behavior under the UCL. Specifically, she contends that Kellogg's
conduct violates California Health and Safety Code Sections 109875,
et. seq. (the "Sherman Law"), which has expressly adopted federal
food labeling requirements, by: (i) making false and misleading
representations that the products are primarily made from
vegetables in violation of 21 U.S.C. Section 343(a), which deems
misbranded any food whose "label is false or misleading in any
particular"; (2) violating 21 C.F.R. Section 101.18(b), by
describing the Products as VEGGIE despite that they are primarily
composed of non-vegetable ingredients, like wheat, gluten, and oil;
and (3) violating 21 C.F.R. Section 102.5(b) by using product names
that include the term VEGGIE while failing to disclose the
percentage of vegetables in the Products, which has a material
bearing on the price and consumer acceptance of the Veggie
Products.
Judge Orrick finds that (i) Kellogg's use of the term VEGGIE is not
false and misleading in violation of federal food labeling law or
California's Sherman Law.; (ii) the packing does not show, picture,
or mention vegetables or make any reference to vegetables or any
amount of vegetables being in the product; and (iii) he rejects the
Plaintiff's allegation that VEGGIE refers to the presence of
vegetables in the products, as opposed to products that are
vegetarian or meat-alternatives.
As to breach of warranty, Judge Orrick holds that an ambiguous
statement is insufficient to create an express warranty. And,
because there is no argument that its Products are not fit for
consumption or are not in fact vegetarian/meat substitutes, the
products cannot breach the implied warranty of merchantability
under this theory.
Finally, Kellogg moves to dismiss the Plaintiff's claim for
equitable relief -- restitution under the FAL and UCL and
injunctive relief -- because the Plaintiff has failed to allege
facts demonstrating the inadequacy of her claims for damages under
the CLRA and breach theories such that she could proceed with her
equitable UCL claim. Judge Orrick need not reach this argument
because he has found that the Plaintiff's misrepresentation and
illegality claims fail as a matter of law. There are no bases left
on which to allege a violation of the UCL.
For the foregoing reasons, Judge Orrick dismisses the Plaintiff's
FAC. As the Plaintiff has been given ample opportunity to allege
additional facts in support, and as Judge Orrick has rejected her
theories as implausible and otherwise not actionable, dismissal is
with prejudice.
A full-text copy of the Court's Sept. 14, 2022 Order is available
at https://tinyurl.com/2krz26sv from Leagle.com.
KONINKLIJKE PHILIPS: Faces Suit Over Defective Breathing Devices
----------------------------------------------------------------
LAWRENCE J. SPIEKERMEIER, individually and on behalf of all others
similarly situated, Plaintiff v. KONINKLIJKE PHILIPS N.V.; PHILIPS
NORTH AMERICA LLC; and PHILIPS RS NORTH AMERICA LLC, Defendants,
Case No.9:22-cv-00158-DLC (D. Mont., Sept. 16, 2022) seeks to
obtain relief for the injuries caused by the Defendants' defective
CPAP and BiPAP breathing devices.
According to the complaint, the Defendants manufacture and sell a
variety of products intended to help people breathe. Among these
breathing devices are Continuous Positive Airway Pressure machines
("CPAP") and Bilevel Positive Airway Pressure machines ("BiPAP"),
which are used to treat sleep apnea.
On June 14, 2021, Philips issued a recall of many of its CPAPs,
BiPAPs, and ventilators (the "Recalled Devices"). The "Urgent
Medical Device Recall" explained that the sound abatement foam in
the Recalled Devices, which contains polyester-based polyurethane
("PE-PUR"), is "susceptible to degradation and volatile organic
compound emission."
Philips timed its recall notice to coincide with the launch of its
next generation of products, which apparently do not suffer from
the same PE-PUR issues. Thus, whenever Philips fulfills its promise
to replace the Recalled Devices, it will enjoy further profits when
patients pay for the replacements. Most patients must use the
Recalled Devices every day, but Philips has no plan or concrete
timeline for replacing or repairing any of the Recalled Devices,
says the suit.
KONINKLIJKE PHILIPS NV is a health technology company focused on
improving people's health across the health continuum from healthy
living and prevention, to diagnosis, treatment, and home care. The
Company offers products and services in diagnostic imaging,
image-guided therapy, patient monitoring and health informatics, as
well as in consumer health and home care. [BN]
The Plaintiff is represented by:
Dwight Schulte, Esq.
SCHULTE LAW FIRM P.C.
2425 Mullan Road
Missoula, MT 59808
Telephone: (406) 721-6655
Email: dwight@jschultelaw.com
- and -
Alexander G. Cabeceiras, Esq.
DEREK SMITH LAW GROUP, PLLC
One Penn Plaza, Suite 4905
New York, NY 10119
Telephone: (332) 910-5631
Facsimile: (212) 587-4169
Email: alexc@dereksmithlaw.com
KROGER CO: Valenzuela Privacy Suit Removed to C.D. California
-------------------------------------------------------------
The case styled SONYA VALENZUELA, individually and on behalf of all
others similarly situated, Plaintiff v. THE KROGER CO., an Ohio
Corporation; and DOES 1 through 25, inclusive, Defendants, Case No.
22STCV25119, was removed from the Superior Court of the State of
California for the County of Los Angeles to the U.S. District Court
for the Central District of California on Sept. 7, 2022.
The Clerk of Court for the Central District of California assigned
Case No. 2:22-cv-06382 to the proceeding.
In the complaint, Ms. Valenzuela alleges Kroger surreptitiously
recorded and stored customers' interactions with a customer service
"chatbot" on Kroger's website, then shared these interactions with
a third-party technology vendor. She characterizes the chatbot as
"wiretapping technology," and claims Kroger's use of the chatbot
violates the California Invasion of Privacy Act, California Penal
Code.
The Kroger Co. is an American retail company that operates
supermarkets and multi-department stores throughout the United
States.[BN]
The Defendant is represented by:
Jacob M. Harper, Esq.
James H. Moon, Esq.
Sancho Accorsi, Esq.
DAVIS WRIGHT TREMAINE LLP
865 South Figueroa Street, 24th Floor
Los Angeles, CA 90017-2566
Telephone: (213) 633-6800
Facsimile: (213) 633-6899
E-mail: jacobharper@dwt.com
jamesmoon@dwt.com
sanchoaccorsi@dwt.com
LA GRANDE BOUCHERIE: Cruz Files ADA Suit in S.D. New York
---------------------------------------------------------
A class action lawsuit has been filed against La Grande Boucherie,
LLC. The case is styled as Miriam Cruz, on behalf of herself and
all others similarly situated v. La Grande Boucherie, LLC, Case No.
1:22-cv-05505 (S.D.N.Y., Sept. 14, 2022).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
La Grande Boucherie -- https://boucherie.nyc/ -- is a polished
French restaurant in an expansive art nouveau–style space with an
elegant heated atrium.[BN]
The Plaintiff is represented by:
Mars Khaimov, Esq.
10826 64th Avenue, Ste. 2nd Floor
Forest Hills, NY 11375
Phone: (917) 915-7415
Email: mars@khaimovlaw.com
LA-Z-BOY INCORPORATED: Maddy Files ADA Suit in S.D. New York
------------------------------------------------------------
A class action lawsuit has been filed against La-Z-Boy
Incorporated. The case is styled as Veronica Maddy, on behalf of
herself and all others similarly situated v. La-Z-Boy Incorporated,
Case No. 1:22-cv-07826-AT (S.D.N.Y., Sept. 13, 2022).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
La-Z-Boy Inc. -- https://www.la-z-boy.com/ -- is an American
furniture manufacturer based in Monroe, Michigan, that makes home
furniture, including upholstered recliners, sofas, stationary
chairs, lift chairs and sleeper sofas.[BN]
The Plaintiff is represented by:
Mars Khaimov, Esq.
10826 64th Avenue, Ste. 2nd Floor
Forest Hills, NY 11375
Phone: (917) 915-7415
Email: mars@khaimovlaw.com
LIBERTY MUTUAL: Court Enters Scheduling Order in Fralish Suit
-------------------------------------------------------------
In the class action lawsuit captioned as JOHN FRALISH, individually
and on behalf of others similarly situated, v. LIBERTY MUTUAL
INSURANCE COMPANY, Case No. 3:22-cv-00336-DRL-MGG (N.D. Ind.), the
Hon. Judge Michael G. Gotsch, Sr. entered a scheduling order as
follows:
-- The last date for the parties to amend the pleadings
without leave of court is February 10, 2023.
-- The serving of reports from experts retained under Rule
26(a)(2) for purposes of class certification are due from
the party with the burden of proof by May 30, 2023, with
response expert reports due June 30, 2023. Expert
depositions shall be completed by August 31, 2023.
-- The last date for the completion of all discovery is August
31, 2023.
-- To facilitate this status conference and a prompt trial
date, the last date to file any discovery-related
nondispositive motion is July 31, 2023.
Liberty Mutual is an American diversified global insurer and the
sixth-largest property and casualty insurer in the United States.
A copy of the Court's order dated Sept. 2, 2022 is available from
PacerMonitor.com at https://bit.ly/3QSLXKb at no extra charge.[CC]
LIFE & HEALTH: First $2.5-M FTSA Suit Settlement Seeks Approval
---------------------------------------------------------------
manatt.com reports that what is believed to be the first settlement
under Florida's mini-Telephone Consumer Protection Act (TCPA) law
is seeking judicial approval for a payout of more than $2.5
million.
After coming into effect on July 1, 2021, the Florida Telephone
Solicitation Act yielded immediate lawsuits and copycat laws in
other states.
One of the first actions filed was by Luis Alvarez, who accused
Sunshine Life & Health Advisors of sending marketing text messages
using an automated system without permission to Florida residents.
Rather than proceed in the federal forum that is generally
associated with TCPA litigation, Plaintiff elected to file suit in
Florida state court and omitted the TCPA claim entirely. After the
trial court denied the defendant's motion to dismiss, the parties
reached a settlement.
The proposed deal would include a $2,556,000 settlement fund used
to pay $300 to each class member, a $5,000 incentive award for
Alvarez, the costs of notice and settlement administration, and
class counsel attorneys' fees of approximately 20 percent of the
total fund (roughly $511,200).
Any part of the settlement fund that is not used to provide relief
to these four categories "shall remain with defendant."
Class members are defined as "[a]ll persons who (1) received a text
message (2) by or on behalf of defendant (3) between July 1, 2021,
and the date of final approval (4) regarding defendant's goods
and/or services." The parties estimate the class includes
approximately 4,260 persons.
The defendant also promised to adopt policies and procedures to
achieve compliance with the FTSA, including obtaining express
written consent from recipients of text messages.
In his motion in support of approval of the settlement, Alvarez
told the court the deal "meets all requirements" supporting the
fairness, adequacy, and reasonableness of the settlement.
Plaintiff has requested that The Motion for Final Approval of the
Settlement go forward on November 4, 2022.
To read the motion for preliminary approval of a class action
settlement in Alvarez v. Sunshine Life & Health Advisors LLC click
here.
Why it matters: Florida's mini-TCPA law has been the subject of
many headlines and even more lawsuits since its enactment last
year. The first settlement could provide a road map for other
cases, with plaintiffs and their attorneys taking note of the $300
per class member payment and total settlement fund of more than
$2.5 million. Readers should also take note that the prevalence of
these new state mini-TCPAs increases the risk that you may be
required to litigate what are essentially TCPA claims in a state
court forum-forums that are typically more unpredictable than their
federal counterparts. [GN]
LUCINDAS INC: Dicks Files ADA Suit in S.D. New York
---------------------------------------------------
A class action lawsuit has been filed against Lucindas, Inc. The
case is styled as Valerie Dicks, on behalf of herself and all
others similarly situated v. Lucindas, Inc., Case No. 1:22-cv-07824
(S.D.N.Y., Sept. 13, 2022).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Lucindas, Inc. is a full-service interior design company that
specializes in custom window treatments throughout East Central
Indiana and West Central Ohio.[BN]
The Plaintiff is represented by:
Mars Khaimov, Esq.
10826 64th Avenue, Ste. 2nd Floor
Forest Hills, NY 11375
Phone: (917) 915-7415
Email: mars@khaimovlaw.com
LUXOTTICA OF AMERICA: Court Amends Jan. 10, 2022 Calendar Order
---------------------------------------------------------------
In the class action lawsuit captioned as Doyle v. Luxottica of
America, Inc., Case No. 1:20-cv-00908-MRB (S.D. Ohio), the Hon.
Judge Michael R. Barrett entered an order amending Jan. 10, 2022
calendar order as follows:
Event Current Proposed
Deadline Deadline
-- Substantial completion of Mar. 29, 2022 Dec. 30, 2022
document production
-- Plaintiffs' class July 22, 2022 April 21, 2023
certification motion:
-- Defendant's opposition Sept. 6, 2022 June 2, 2023
to Plaintiffs' class
certification motion:
-- Plaintiffs' reply to Oct. 18, 2022 July 14, 2023
Defendants' opposition
to Plaintiffs' class
certification motion:
-- Plaintiffs' disclosure Nov. 8, 2022 Aug. 11, 2023
and report of experts:
-- Defendant's disclosure Dec. 20, 2022 Oct. 6, 2023
and report of experts:
-- Disclosure and report of Jan. 20, 2023 Nov. 3, 2023
rebuttal experts:
-- Fact discovery deadline Jan. 20, 2023 Nov. 3, 2023
-- Expert discovery deadline: Jan. 24, 2023 Nov. 24, 2023
-- Disclosure of non-expert Feb. 28, 2023 Dec. 15, 2023
(fact) witnesses:
-- Dispositive motion May 16, 2023 March 15, 2024
deadline:
-- Settlement conference: June 12, 2023 May 17, 2024
-- Joint final pretrial Oct. 17, 2023 July 26, 2024
order/jury instructions:
-- Final pretrial Oct. 24, 2023 Aug. 2024
conference:
-- Jury trial Dec. 2023 Sept. 2024
Luxottica offers prescription glasses and sunglasses.
A copy of the Court's order dated Sept. 6, 2022 is available from
PacerMonitor.com at https://bit.ly/3BT7YnN at no extra charge.[CC]
LYONS BANCORP: Celso Sues Over Unlawful Multiple Overdraft Fees
---------------------------------------------------------------
Michael Celso, on behalf of himself and all others similarly
situated v. LYONS BANCORP, INC. d/b/a THE LYONS NATIONAL BANK, Case
No. 6:22-cv-06393-CJS (W.D.N.Y., Sept. 14, 2022), is brought
concerning the Defendant's unlawful business practices of assessing
multiple overdraft fees and insufficient funds fees ("NSF fees") of
$36 fees on an item.
The Federal Deposit Insurance Corporation (the "FDIC") has
expressed concern with the practice of assessing multiple fees on
an item. In 2012, the FDIC determined that one bank's assessment of
more than one NSF Fee on the same item was a "deceptive and unfair
act." In its latest issue of Consumer Compliance Supervisory
Highlights, the FDIC again addressed the charging of multiple
non-sufficient funds fees for transactions presented multiple times
against insufficient funds in the customer's account.
This abusive practice is not universal in the financial services
industry. Indeed, major banks like Chase—the largest consumer
bank in the country—do not undertake the practice of charging
more than one fee on the same item when it is reprocessed. Instead,
Chase charges one fee even if an item is reprocessed for payment
multiple times. Despite this, the Defendant assesses multiple fees
on an item and breaches the Contract. Through the imposition of
these fees, the Defendant has made substantial revenue to the tune
of tens of millions of dollars, seeking to turn its customers'
financial struggles into revenue, says the complaint.
The Plaintiff is a citizen and resident of Walworth, New York.
The Defendant is a bank with more than $1.7 billion in assets.[BN]
The Plaintiff is represented by:
James J. Bilsborrow, Esq.
WEITZ & LUXENBERG, PC
700 Broadway
New York, NY 10003
Phone: (212) 558-5500
Email: jbilsborrow@weitzlux.com
- and -
Christopher D. Jennings, Esq.
Tyler B. Ewigleben, Esq.
JOHNSON FIRM
610 President Clinton Avenue, Suite 300
Little Rock, AK 72201
Phone: (501) 372-1300
Email: chris@yourattorney.com
tyler@yourattorney.com
MADISON APOTHECARY: Cruz Files ADA Suit in S.D. New York
--------------------------------------------------------
A class action lawsuit has been filed against Madison Apothecary,
Inc. The case is styled as Miriam Cruz, on behalf of herself and
all others similarly situated v. Madison Apothecary, Inc., Case No.
1:22-cv-05459 (S.D.N.Y., Sept. 13, 2022).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
The Madison Apothecary -- https://themadisonapothecary.com/ -- is a
pharmacy skincare in New York that provides luxury wellness
products, including cosmetics, vitamins, and home fragrances.[BN]
The Plaintiff is represented by:
Mars Khaimov, Esq.
10826 64th Avenue, Ste. 2nd Floor
Forest Hills, NY 11375
Phone: (917) 915-7415
Email: mars@khaimovlaw.com
MADISON COUNTY, IL: Court Dismisses Brown v. Sheriff and Jail
-------------------------------------------------------------
In the case, DAVID F. BROWN, #17579, on behalf of himself and other
similarly situated persons, Plaintiff v. JOHN D. LAKIN, CHRISTOPHER
THARP, MADISON COUNTY, ILLINOIS, MADISON COUNTY SHERIFF'S OFFICE,
and MADISON COUNTY JAIL ADMINISTRATION AND STAFF, Defendants, Case
No. 22-cv-00887-JPG (S.D. Ill.), Judge J. Phil Gilbert of the U.S.
District Court for the Southern District of Illinois:
(i) dismisses the Complaint, including Counts 1 and 2,
without prejudice; and
(ii) denies the Plaintiff's request for class certification
without prejudice.
Petitioner Brown, a detainee in Madison County Jail, filed two
complaints stemming from the same incident in the Circuit Court of
the Third Judicial Circuit, Madison County, Illinois, Case No.
2022-MR-000048 (filed Jan. 31, 2022) ("first complaint") and Case
No. 2022-LA-000391 (filed March 18, 2022) ("second complaint").
This case only involves the second complaint. He names himself and
other "similarly situated persons" as plaintiffs and refers to the
matter as a "class action."
In the complaint, the Plaintiff names Madison County Sheriff (John
Lakin), Madison County Jail Administrator (Christopher Tharp),
Madison County Sheriff's Office, Madison County Jail Administration
and Staff, and Madison County, Illinois (collectively "Madison
County Defendants"), for constitutional deprivations caused by his
exposure to a COVID-positive detainee on Jan. 6, 2022. He claims
that the Madison County Defendants knowingly housed him with the
sick detainee and then denied him medical care when he contracted
the virus. He seeks money damages.
The Defendants removed the case to the Court on the basis of
original federal question jurisdiction under 28 U.S.C. Sections
1441 and 1446. The Plaintiff brings claims against the Defendants
under the Eighth and/or Fourteenth Amendment(s) of the United
States Constitution, and he made no objection to removal. The Court
finds that removal is proper.
The Complaint is subject to preliminary review under 28 U.S.C.
Section 1915A. Section 1915A requires the Court to screen prisoner
complaints to filter out non-meritorious claims. Any portion of a
complaint that is legally frivolous, malicious, meritless, or asks
for money damages from a defendant who by law is immune from such
relief must be dismissed. At this juncture, the factual allegations
of the pro se complaint are liberally construed.
The Plaintiff sets forth the following allegations in the
Complaint: The Madison County Defendants (including "guards,"
"administration and staff," and a "nurse") allegedly violated his
rights under the Eighth and/or Fourteenth Amendments when they
moved a detainee with COVID-19 into his cellblock on Jan. 6, 2022.
From Jan. 7 to 10, 2022, the Defendants also failed to bring
cleaning supplies, masks, or other safety gear to the cellblock for
use in disinfecting the cells. As a result, the Plaintiff
contracted the virus on Jan. 12, 2022. Although he suffered from
numerous symptoms, the Defendants denied him treatment.
Based on the allegations in the Complaint, Judge Gilbert finds it
convenient to designate the following count in this pro se action:
Count 1: The Defendants subjected the Plaintiff to
unconstitutional conditions of confinement at Madison County Jail
by placing an inmate who tested positive for COVID-19 into his
cellblock and causing him to become ill on Jan. 6, 2022.
Count 2: The Defendants denied Plaintiff adequate medical
care for COVID-19 beginning on Jan. 6, 2022.
Any other claim that is mentioned in the Complaint but not
addressed in the Memorandum and Order is considered dismissed
without prejudice as inadequately pled under Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 570 (2007).
Judge Gilbert finds that the Plaintiff names specific individuals
(John Lakin and Christopher Tharp) and general groups (Madison
County Sheriff's Office, Madison County Jail Administration and
Staff, and Madison County, Illinois) of defendants. He collectively
refers to them as "Madison County Defendants" or "Defendants" in
the opening paragraphs of the Complaint. However, he fails to
mention anyone other than "defendants," "guards," "administration
and staff," and a "nurse" in the statement of his claim.
The Plaintiff cannot proceed with any claims against Jail
Administrator Tharp or Sheriff Lakin based on their supervisory
role over subordinates who violated his constitutional rights
because the doctrine of respondeat superior is inapplicable under
Section 19. He can identify the actual defendants with
particularity at a later stage in the case. Sheriff Lakin and Jail
Administrator Tharp will be dismissed without prejudice.
Madison County may be a proper defendant, according to Judge
Gilbert, if the Plaintiff intends to pursue a claim of municipal
liability. Such claims arise from a policy, custom, or practice
that causes a constitutional deprivation. The Plaintiff has
described no such policy, custom, or practice. Therefore, he has
articulated no claim against this defendant, and the county will be
dismissed without prejudice.
Judge Gilbert also finds that the Madison County City Sheriff's
Office is not a "person" subject to suit under Section 1983. The
Sheriff's Office is not even a suable entity. Pursuant to Federal
Rule of Civil Procedure 17, a defendant must have the legal
capacity to be sued. The "Madison County Sheriff's Office" will be
dismissed with prejudice.
Finally, Madison County Jail Administration and Staff is too poorly
defined to satisfy the personal involvement requirement under
Section 1983. The Plaintiff must name specific individuals as
defendants in the case caption, list of defendants, and statement
of his claim. This is the only way to put a defendant on notice of
the claim(s) against him or her, so that the defendant can answer
the complaint. This nebulous group of defendants will be dismissed
with prejudice.
If the Plaintiff wishes to proceed any further with the suit, Judge
Gilbert says the Plaintiff must file an amended complaint in the
Court naming the individuals who exposed him to the
unconstitutional conditions of confinement and who denied him
medical care. The Plaintiff must name these defendants in the case
caption of the amended complaint, and he must also describe what
each defendant did (or failed to do) to violate his constitutional
rights in the body of the amended complaint. Merely naming a
potential defendant without describing his or her misconduct is not
enough. Likewise describing the misconduct of individuals who are
not identified as defendants is also insufficient. The Plaintiff
must do both.
Judge Gilbert denies the Plaintiff's Motion for Recruitment of
Counsel without prejudice. He concludes the Plaintiff has not shown
sufficient efforts to locate counsel on his own, and he identifies
no impediments, whatsoever, to self-representation (e.g.,
educational, medical, mental health, language, communication, law
library access). Given that the Plaintiff is a college graduate who
has demonstrated his ability to prepare and file coherent
complaints and related motions in two cases removed to the Court,
Judge Gilbert deems counsel unnecessary at this stage.
The Plaintiff may renew his request for representation, after
making a good faith attempt to find an attorney or law firm to
represent him; he should ask family members or friends to assist
him with this process, if he is unable to do so himself. When
filing a new motion for recruitment of counsel, the Plaintiff
should attach proof of his efforts to find counsel on his own
(i.e., at least three attorneys/firms contacted, dates of each
contact, and responses received).
Based on the foregoing, Judge Gilbert dismisses the Complaint,
including Counts 1 and 2, without prejudice for failure to state a
claim upon which relief may be granted. He denies the Plaintiff's
request for class certification without prejudice.
Judge Gilbert dismisses Defendants Lakin, Tharp, and Madison Court,
Illinois without prejudice because the Complaint fails to
articulate a colorable claim against these defendants. The
Sheriff's Office and Madison County Jail Administration and Staff
are dismisses with prejudice because both are improper defendants
in this Section 1983 case.
The Plaintiff is granted leave to file a "First Amended Complaint"
by Oct. 12, 2022. Should he fail to file his First Amended
Complaint within the allotted time or consistent with the
instructions set forth in the Order, the entire case will be
dismissed with prejudice for failure to comply with a court order
and/or for failure to prosecute his claims.
It is strongly recommended that the Plaintiff use the civil rights
complaint form designed for use in this District. He should label
the form, "First Amended Complaint," and he should use the case
number for this action (No. 22-cv-00887-JPG). To enable him to
comply with the Order, the Clerk is directed to mail the Plaintiff
a blank civil rights complaint form.
An amended complaint supersedes and replaces the original
complaint, rendering the original complaint void. Therefore, the
First Amended Complaint must stand on its own without reference to
any previous pleading. The Plaintiff must re-file any exhibits he
wishes the Court to consider along with it. The First Amended
Complaint is also subject to review pursuant to 28 U.S.C. Section
1915A.
Finally, the Plaintiff is advised that he is under a continuing
obligation to keep the Clerk of Court and each opposing party
informed of any change in his address; the Court will not
independently investigate his whereabouts. This will be done in
writing and not later than seven days after a transfer or other
change in address occurs. Failure to comply with the Order will
cause a delay in the transmission of court documents and may result
in dismissal of the action for want of prosecution.
A full-text copy of the Court's Sept. 13, 2022 Memorandum & Order
is available at https://tinyurl.com/2wsujj3f from Leagle.com.
MALLINCKRODT PHARMACEUTICALS: Stifles Acthar Competition, Suit Says
-------------------------------------------------------------------
Eric Sagonowsky at fiercepharma.com reports that after paying $100
million to settle charges that it quashed competition for its
blockbuster H.P. Acthar Gel, Mallinckrodt is facing more legal
heat. In a lawsuit (PDF) filed, plaintiffs representing Medicare
Advantage Organizations accuse the company of blocking competition
and dramatically raising prices on its lead medication.
The plaintiffs say Mallinckrodt and Questcor have raised H.P.
Acthar Gel prices 85,000% since 2001. Mallinckrodt purchased
Questcor in 2014 and inherited some of the legal issues tied to the
drug, including a Federal Trade Commission probe.
To stifle competition, the plaintiffs argue, Questcor's U.S. unit
purchased the rights to a potential competitor from Novartis in
2011, then sidelined that drug and continued raising prices on
Acthar. After Mallinckrodt bought Questor, price hikes and
anticompetitive behavior continued, the lawsuit claims.
A company spokesperson told FiercePharma, "Mallinckrodt strongly
believes that none of the company actions outlined in the
plaintiff's complaint constitute a violation of any law and,
therefore, believes that the complaint should be dismissed in its
entirety. We will vigorously defend the company in this matter."
H.P. Acthar Gel, which boasts 19 FDA approvals and generated more
than $1 billion last year, now costs the payer-plaintiffs more than
$34,000 per vial, according to the lawsuit. In 2001, the price was
$40 per vial, the suit claims. The product is an important
treatment for infants with epilepsy, and it's also approved to
treat a variety of inflammatory conditions.
The company's price increases on Acthar have been smaller than
Questcor's were before the buyout, according to recent research,
but the drug's growth has been fueled partly by doctors who
prescribe the medication frequently. A company spokesperson said
the current price per vial for Acthar is $36,382 and that the
drugmaker provides discounts to both public and private payers.
The same research found that government programs cover the majority
of Acthar scripts. Researchers from Oregon State University's
College of Pharmacy found that the blockbuster drug's sales have
been paid for primarily by Medicare and Medicaid for conditions
that often could be treated with less expensive corticosteroids.
Spending by Medicare for Acthar increased tenfold and totaled $1.3
billion from 2011 to 2015, the researchers found, in a study
published last month in JAMA Internal Medicine.
According to the company's spokesperson, that's a result of
practitioners learning more about the drug over time, resulting in
"increased usage in aging patient populations, particularly in the
rheumatology and pulmonology spaces, where Medicare coverage is
more likely to be utilized."
"H.P. Acthar Gel is typically used episodically and acutely with
patients, as opposed to a drug that is used regularly or
chronically with patients," he said. "Additionally, these patients
are often on concurrent treatments."
RELATED: Embattled Mallinckrodt exits PhRMA ahead of tough new R&D
investment rules
Plaintiffs allege violations of the Sherman Act and other consumer
antitrust and consumer protection laws, plus unjust enrichment.
They're seeking disgorgement of "ill-gotten gains" and other
damages.
Mallinckrodt has faced plenty of heat during the yearslong Acthar
saga. Earlier this year, it agreed to pay $100 million to the FTC
to wrap up a probe it inherited with the Questcor purchase. As part
of that deal, the company had to license the competing drug it
purchased, Synacthen Depot, for infantile spasms and nephrotic
syndrome in the U.S. to West Pharmaceuticals.
According to a New York Post report, it was actually infamous
pharma executive Martin Shkreli who blew the whistle on Questcor
with a 2014 lawsuit that triggered the FTC investigation. Shkreli
now awaits sentencing on securities fraud charges relating to his
time at Retrophin.
Since the FTC settlement, Mallinckrodt also left industry trade
group PhRMA ahead of new rules requiring members to spend
significant money on R&D. The company left the organization only 15
months after joining. [GN]
MAPLEBEAR INC: Williams Files Suit in Cal. Super. Ct.
-----------------------------------------------------
A class action lawsuit has been filed against Maplebear Inc. The
case is styled as Eboni Williams, individually and on behalf of
all, others similarly situated v. Maplebear Inc. doing business as
Instacart, Case No. CGC22601761 (Cal. Super. Ct., San Francisco
Cty., Sept. 13, 2022).
The case type is stated as "Business Tort."
Maplebear Inc. doing business as Instacart --
https://www.instacart.com/ -- is an American company that operates
a grocery delivery and pick-up service in the United States and
Canada.[BN]
The Plaintiff is represented by:
Jonas B. Jacobson, Esq.
DOVEL & LUNER, L.L.P.
201 Santa Monica Boulevard
Santa Monica, CA 90405
Phone: 310-656-7066
MAR TILE DESIGN: Salazar Sues to Recover Unpaid Overtime Wages
--------------------------------------------------------------
Roneld J. Salazar, Antonio J. Scaramella, and other similarly
situated individuals v. Mar Tile Design Corp., and Jose J. Herrera,
individually, Case No. 6:22-cv-01678-RBD-DAB (M.D. Fla., Sept. 15,
2022), is brought to recover money damages for unpaid overtime
wages and retaliation under the Fair Labor Standards Act.
The Defendants willfully failed to pay the Plaintiffs overtime
wages, at the rate of time and a half their regular rate, for every
hour that they worked in excess of 40 in violation of the FLSA. The
Plaintiffs seek to recover unpaid half-time overtime wages for
every hour worked over 40 during their entire employment,
liquidated damages, and any other relief as allowable by law, says
the complaint.
The Plaintiffs were tile installers.
Mar Tile Design is a remodeling contractor specializing in tile
design and installations.[BN]
The Plaintiffs are represented by:
Zandro E. Palma, Esq.
ZANDRO E. PALMA, P.A.
9100 S. Dadeland Blvd., Suite 1500
Miami, FL 33156
Phone: (305) 446-1500
Facsimile: (305) 446-1502
Email: zep@thepalmalawgroup.com
MARKS JEWELERS: Dicks Files ADA Suit in S.D. New York
-----------------------------------------------------
A class action lawsuit has been filed against Marks Jewelers, Inc.
The case is styled as Valerie Dicks, on behalf of herself and all
others similarly situated v. Marks Jewelers, Inc., Case No.
1:22-cv-07702 (S.D.N.Y., Sept. 9, 2022).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Marks Jewelers -- https://www.marks-jewelers.com/ -- is a jeweler
offering both Mined Diamonds and Lab-Grown Diamonds.[BN]
The Plaintiff is represented by:
Mars Khaimov, Esq.
10826 64th Avenue, Ste. 2nd Floor
Forest Hills, NY 11375
Phone: (917) 915-7415
Email: mars@khaimovlaw.com
MARSHAL SEEMAN: Millstein Seeks Initial OK of Settlement
--------------------------------------------------------
In the class action lawsuit captioned as FANNY B. MILLSTEIN v.
MARSHAL SEEMAN, et al., Case No. 0:21-cv-61179-RAR (S.D. Fla.), the
Plaintiff and the Class ask the Court to enter an order:
1. granting preliminary approval of the Settlement;
2. certifying for settlement purposes the proposed Settlement
Class, pursuant to Rule 23(b)(3) and (e) of the Federal
Rules of Civil Procedure;
3. approving the Notice Program set forth in the Agreement
and approve the form and content of the Notice, attached
as Exhibits to this Motion;
4. appointing Plaintiff as the Settlement Class
Representative;
5. appointing as Settlement Class Counsel; and
6. scheduling a Final Approval Hearing at the time the Order
on Preliminary Approval is entered so that the Final
Approval Hearing date can be included in the notice.
A copy of the Plaintiff and Class' motion dated Sept. 6, 2022 is
available from PacerMonitor.com at https://bit.ly/3dpoUZB at no
extra charge.[CC]
The Plaintiff and the class are represented by:
Joshua A. Katz, Esq.
James D. Sallah, Esq.
Joshua A Katz, Esq.
SALLAH ASTARITA & COX, LLC
One Boca Place
2255 Glades Rd., Ste. 300E
Boca Raton, FL 33431
Telephone: (561) 989-9080
Facsimile: (561) 989-9020
E-mail: jds@sallahlaw.com
jak@sallahlaw.com
- and -
Gary S. Menzer, Esq.
Michael S. Hill, Esq.
MENZER & HILL, P.A.
7280 W. Palmetto Park Rd., Ste. 103
Boca Raton, FL 33433
Telephone: (888) 923-9223
Facsimile: (561) 880-8449
E-mail: gmenzer@menzerhill.com
mhill@menzerhill.com
- and -
Scott L. Silver, Esq.
Ryan A. Schwamm, Esq.
Peter M. Spett, Esq.
SILVER LAW GROUP
11780 W. Sample Road
Coral Springs, FL 33065
Telephone: (954) 755-4799
Facsimile: (954) 755-4684
E-mail: ssilver@silverlaw.com
rschwamm@silverlaw.com
pspett@silverlaw.com
- and -
David M. Buckner, Esq.
Brett E. von Borke, Esq.
BUCKNER + MILES
2020 Salzedo Street, Ste. 302
Coral Gables, FL 33134
Telephone: (305) 964-8003
Facsimile: (786) 523-0585
E-mail: david@bucknermiles.com
vonborke@bucknermiles.com
MAYVENN INC: Parties File Stipulation Extending Briefing Schedule
-----------------------------------------------------------------
In the class action lawsuit captioned as LUCINE TRIM, individually
and on behalf of all others similarly situated,
v. MAYVENN, INC., Case No. 3:20-cv-03917-MMC (N.D. Cal.), the
Parties file joint stipulation extending briefing schedule and
hearing date on the Defendant's motion to deny class certification
as follows:
On August 19, 2022, the Defendant filed a motion to deny class
certification, thereby making the Plaintiff's response due on
September 2, 2022.
The parties agree to and request that Plaintiff’s response
deadline be extended up to and including September 23, 2022, and
the Defendant's reply deadline be extended up to and including
October 7, 2022. The parties further request that the hearing on
this motion be rescheduled to October 28, 2022.
Mayvenn provides personal care products. The Company offers virgin
human hair and hair extensions products.
A copy of the Court's order dated Sept. 1, 2022 is available from
PacerMonitor.com at https://bit.ly/3qwW7p9 at no extra charge.[CC]
The Plaintiff is represented by:
Rachel E. Kaufman, Esq.
KAUFMAN P.A.
237 South Dixie Highway, 4th Floor
Coral Gables, FL 33133
Telephone: (305) 469-5881
E-mail: rachel@kaufmanpa.com
The Defendant is represented by
Tiffany Cheung, Esq.
MORRISON & FOERSTER LLP
TIFFANY CHEUNG (CA SBN 211497)
425 Market Street
San Francisco, CA 94105
Telephone: (415) 268-7000
Facsimile: (415) 268-7522
E-mail: TCheung@mofo.com
MBA MORTGAGE: Remsnyder, et al., Seeks to Certify Class, Subclasses
-------------------------------------------------------------------
In the class action lawsuit captioned as Matthew S. Remsnyder, et
al., on behalf of themselves and the entire class of persons
similarly situated, v. MBA Mortgage Services, Inc., Case No.
1:19-cv-00492-CCB (D. Md.), the Plaintiffs ask the Court to enter
an order certifying the following Class and Subclasses:
-- The MBA Class
"All individuals in the United States who were borrowers
on a mortgage loan originated or brokered by MBA Mortgage
Services, Inc., for which All Star Title, Inc., provided a
settlement service, as identified in Section 1100 on the
borrower’s HUD-1 or on the Closing Disclosure 1 between
July 1, 2009 and December 31, 2015;"
Exempted from this class is any person who, during the
period of July 1, 2009 through December 31, 2015, was an
employee, officer, member and/or agent of MBA Mortgage
Services, Inc. or All Star Title, Inc.; any judicial
officer who handles this case, and the immediate family
members of such judicial officer(s);
-- The RESPA Subclass
"The RESPA Subclass is comprised of all members of the MBA
Class who were borrowers on a federally related mortgage
loans (as defined under the Real Estate Settlement
Procedures Act, 12 U.S.C. section 2602); and
-- The RESPA Subclass
"The RICO Subclass is comprised of all members of the MBA
class."
The Plaintiffs are Matthew S. Remsnyder and Kimberly I. McMillen,
Lucy Strausbaugh, Vernon and Crystal Miller, Bonnie S. Vaughn,
Edward and Karen Leech, Jr., Ellen T. Geiling, Ted and Andrea
Doederlein, Randall Taylor, and Edward F. and Anna M. Barth, Jr.
MBA Mortgage is a full service mortgage company.
A copy of the Plaintiffs' motion to certify classes dated Sept. 1,
2022 is available from PacerMonitor.com at https://bit.ly/3qxWFL8
at no extra charge.[CC]
The Plaintiffs are represented by:
Timothy F. Maloney, Esq.
Veronica B. Nannis, Esq.
JOSEPH, GREENWALD & LAAKE
6404 Ivy Lane, Suite 400
Greenbelt, MD 20770
Telephone: (301) 220-2200
Facsimile: (301) 220-1214
E-mail: tmaloney@jgllaw.com
vnannis@jgllaw.com
- and -
Michael Paul Smith, Esq.
Melissa L. English, Esq.
SMITH, GILDEA & SCHMIDT, LLC
600 Washington Avenue, Suite 200
Towson, MD 21204
Telephone: (410) 821-0070
Facsimile: (410) 821-0071
E-mail: mpsmith@sgs-law.com
menglish@sgs-law.com
MCKESSON MEDICAL: Colinayo Wage-and-Hour Suit Goes to E.D. Cal.
---------------------------------------------------------------
The case styled DARWIN COLINAYO, individually and on behalf of all
others similarly situated v. MCKESSON MEDICAL-SURGICAL INC. and
DOES 1 through 50, inclusive, Case No. S-CV-0048672, was removed
from the Superior Court of the State of California for the County
of Placer to the U.S. District Court for the Eastern District of
California on September 14, 2022.
The Clerk of Court for the Eastern District of California assigned
Case No. 2:22-cv-01616-JAM-KJN to the proceeding.
The case arises from the Defendant's alleged violations of the
California Labor Code and the California's Unfair Competition Law
including failure to pay minimum wages, failure to pay overtime
owed, failure to provide lawful meal periods, failure to authorize
and permit rest periods, failure to timely pay wages during
employment, failure to timely pay wages owed upon separation from
employment, failure to reimburse necessary expenses, knowing and
intentional failure to comply with itemized wage statement
provisions, and unfair competition.
McKesson Medical-Surgical Inc. is a distributor of medical supplies
and equipment, with its headquarters in Richmond, Virginia. [BN]
The Defendant is represented by:
Mia Farber, Esq.
Nicky Jatana, Esq.
JACKSON LEWIS P.C.
725 South Figueroa Street, Suite 2500
Los Angeles, CA 90017-5408
Telephone: (213) 689-0404
Facsimile: (213) 689-0430
E-mail: Mia.Farber@jacksonlewis.com
Nicky.Jatana@jacksonlewis.com
MEDICAL DISPOSABLES: Midwest Seeks to Withdraw Class Cert Bid
-------------------------------------------------------------
In the class action lawsuit captioned as MIDWEST HEMORRHOID
TREATMENT CENTER TOWN & COUNTRY, LLC, individually and on behalf of
all others similarly-situated, v. MEDICAL DISPOSABLES CORP., RALPH
HERNANDEZ, JENNIFER MUNOZ and JOHN DOES 1-10, Case No.
4:22-cv-00844-SEP (E.D. Mo.), the Plaintiff asks the Court to enter
an order withdrawing its motion for class certification without
prejudice.
Midwest Hemorrhoid specializes in advanced medical treatment and
surgical options for hemorrhoids and other colorectal conditions.
Medical Disposables is a privately owned Bio Medical Technology
company.
A copy of the Plaintiff's motion dated Sept. 1, 2022 is available
from PacerMonitor.com at https://bit.ly/3eLbiZc at no extra
charge.[CC]
The Plaintiff is represented by:
Max G. Margulis, Esq.
MARGULIS LAW GROUP
28 Old Belle Monte Road
Chesterfield, MO 63017
Telephone: (636) 536-7022
Facsimile: (636) 536-6652
E-mail: MaxMargulis@MargulisLaw.com
- and -
Ryan M. Kelly, Esq.
ANDERSON + WANCA
3701 Algonquin Road, Suite 500
Rolling Meadows, IL 60008
Telephone: (847) 368-1500
Facsimile: (847) 368-1501
E-mail: rkelly@andersonwanca.com
MEDLY HEALTH: Brown Sues Over Mass Layoff Without Advance Notice
----------------------------------------------------------------
NELLISA BROWN, CHRISTINE COX, YU CHANG KUO, DIEGO GARCIA, JUAN
GARCIA, REBECCA LANDERS, TAMIKAH LINTON, DAVID MCLAUGHLIN, RICKY
MELENDEZ, ANIKET THAKAR, RONALD TEICHER, and SHARON WILSON-HUGHES,
on behalf of themselves and all others similarly situated,
Plaintiffs v. MEDLY HEALTH INC., Defendant, Case No.
1:22-cv-05490-FB-CLP (E.D.N.Y., September 14, 2022) is a class
action against the Defendant for violations of the federal Worker
Adjustment and Retraining Notification Act and the New York WARN
Act.
The case arises from the Defendant's failure to provide 60 days'
notice of a mass layoff as required by the federal WARN Act and 90
days' notice of a mass layoff as required by the New York WARN Act.
The Defendant terminated the Plaintiffs and all similarly situated
employees in two mass layoffs on August 4 and August 31, 2022,
without any advance notice. Moreover, the Defendant failed to pay
the Plaintiffs and Class members their respective wages, salary,
commissions, bonuses, accrued holiday pay and accrued vacation, and
failed to contribute to 401(k) plans, employee benefit plans
including COBRA coverage, and other benefit plans after the
termination, says the suit.
Medly Health Inc. is an operator of a digital pharmacy,
headquartered in Brooklyn, New York. [BN]
The Plaintiffs are represented by:
Jordan F. Harlow, Esq.
GLASS HARLOW & HOGROGIAN LLP
85 Broad Street, 16th Floor
New York, NY 10004
Telephone: (212) 537-6859
MEMORIAL HEALTH: Ct. Certifies FLSA Class in Myers
--------------------------------------------------
In the class action lawsuit captioned as LYNNETT MYERS, et al., v.
MEMORIAL HEALTH SYSTEM and MARIETTA MEMORIAL HOSPITAL, Case No.
2:15-cv-02956-ALM-CMV (S.D. Ohio), the Hon. Judge Algenon L.
Marbley entered an order:
-- Certifying the class under the Fair Labor Standards Act
(FLSA);
-- Granting the Plaintiffs' unopposed motion for settlement
approval finding the settlement fair, adequate and
reasonable;
-- Awarding the Plaintiffs' attorney fees amounting to
$750,000, litigation expenses and costs of $174,613.87,
administration costs of $25,000, and class representative
awards totaling $45,000; and
-- Dismissing the case and retaining jurisdiction to enforce
the Settlement Agreement;
The Plaintiffs Lynnett Myers, Carol Butler, and Arva Lowther, on
behalf of themselves and all other persons similarly situated,
initiated this lawsuit by filing a collective and class action
complaint with the Court on October 29, 2015.
THe Plaintiffs alleged that Memorial Area Healthcare engaged in
employment practices that violated the FLSA, and the Ohio Minimum
Fair Wage Standards Act. The Plaintiff requested opt-in class
certification for FLSA violations under section 216(b) of the FLSA,
and Federal Rule of Civil Procedure 23 opt-out class certification
for violations of their Ohio-law claim.
On May 20, 2016, the Plaintiffs filed their first Amended
Complaint, adding claims for unjust enrichment on behalf of the
entire Rule 23 class and violations of Ohio's Prompt Pay Act.
Memorial Health is a leading healthcare organization in Illinois.
Marietta Memorial Hospital is part of a not-for-profit integrated
health system.
A copy of the Court's order dated Sept. 6, 2022 is available from
PacerMonitor.com at https://bit.ly/3Lr9hgN at no extra charge.[CC]
MERCEDES-BENZ: Hamm Seeks Reconsideration of Class Cert Order
-------------------------------------------------------------
In the class action lawsuit captioned as TERRY HAMM, On Behalf of
Himself And All Others Similarly Situated, v. MERCEDES-BENZ USA,
LLC, Case No. 5:16-cv-03370-EJD (N.D. Cal.), the Plaintiff files a
motion under Civil Local Rule 7-9 for partial reconsideration of
the Court's April 2, 2021 Order denying his motion for class
certification.
This motion follows the Court's Order Granting Hamm's Motion For
Leave To File A Motion For Partial Reconsideration in which Hamm
argued, and the Court evidently agreed, that Hamm met Civil L.R.
7-9(b)(3)'s criteria for filing a motion for reconsideration.
Reconsideration of the Court's denial of class certification of
Hamm's claim under California's Consumer Legal Remedies Act is
warranted. On reconsideration, Hamm's class certification motion
should be granted as to that claim.
Mercedes-Benz is a Mercedes-Benz Group-owned distributor for
passenger cars in the United States, headquartered in Sandy
Springs, Georgia that sells cars from the Mercedes-Benz brand.
A copy of the Plaintiff's motion dated Sept. 1, 2022 is available
from PacerMonitor.com at https://bit.ly/3LemSIf at no extra
charge.[CC]
The Plaintiff is represented by:
Roy A. Katriel, Esq.
THE KATRIEL LAW FIRM, P.C.
2262 Carmel Valley Road, Suite 201
Del Mar, CA 92014
Telephone: (619) 363-3333
E-mail: rak@katriellaw.com
- and -
Gary S. Graifman, Esq.
Jay I. Brody, Esq.
KANTROWITZ GOLDHAMMER
& GRAIFMAN, P.C.
747 Chestnut Ridge Road
Chestnut Ridge, NY 10977
Telephone: (845) 356-2570
E-mail: ggraifman@kgglaw.com
MERIDIAN BIOSCIENCE: Juan Monteverde Investigates Securities Suit
-----------------------------------------------------------------
Juan Monteverde, founder and managing partner of the class action
firm Monteverde & Associates PC (the "M&A Class Action Firm"), a
national securities firm rated Top 50 in the 2018-2021 ISS
Securities Class Action Services Report and headquartered at the
Empire State Building in New York City, is investigating:
Meridian Bioscience, Inc. (VIVO) relating to its proposed
acquisition by SD Biosensor, Inc. and SJL Partners LLC. Under the
terms of the agreement, VIVO shareholders will receive $34.00 in
cash per share they own. Click here for more information:
https://www.monteverdelaw.com/case/meridian-bioscience-inc. It is
free and there is no cost or obligation to you.
About Monteverde & Associates PC
We are a national class action securities litigation law firm that
has recovered millions of dollars and is committed to protecting
shareholders from corporate wrongdoing. We were listed in the Top
50 in the 2018-2021 ISS Securities Class Action Services Report.
Our lawyers have significant experience litigating Mergers &
Acquisitions and Securities Class Actions. Mr. Monteverde is
recognized by Super Lawyers as a Rising Star in Securities
Litigation in 2013, 2017-2019, an award given to less than 2.5% of
attorneys in a particular field. He has also been selected by
Martindale-Hubbell as a 2017-2021 Top Rated Lawyer. Our firm's
recent successes include changing the law in a significant victory
that lowered the standard of liability under Section 14(e) of the
Exchange Act in the Ninth Circuit. Thereafter, our firm
successfully preserved this victory by obtaining dismissal of a
writ of certiorari as improvidently granted at the United States
Supreme Court. Emulex Corp. v. Varjabedian, 139 S. Ct. 1407 (2019).
Also, in 2019 we recovered or secured six cash common funds for
shareholders in mergers & acquisitions class action cases.
If you own common stock in any of the above listed companies and
wish to obtain additional information and protect your investments
free of charge, please visit our website or contact Juan E.
Monteverde, Esq. either via e-mail at jmonteverde@monteverdelaw.com
or by telephone at (212) 971-1341. [GN]
META PLATFORMS: Intercept Online Communications Without Consent
---------------------------------------------------------------
Taylor Hatmaker at techcrunch.com reports that Apple's major
privacy update to iOS last year made it much more difficult for
apps to track user behavior beyond their own borders, but a new
lawsuit alleges that Facebook and Instagram parent company Meta
kept snooping through a workaround.
The complaint, filed in the U.S. District Court for the Northern
District of California and embedded below, alleges that Meta evaded
Apple's new restrictions by monitoring users through Facebook's
in-app browser, which opens links within the app. The proposed
class-action lawsuit, first reported by Bloomberg, could allow
anyone affected to sign on, which in Facebook's case might mean
hundreds of millions of U.S. users.
In the lawsuit, a pair of Facebook users allege that Meta is not
only violating Apple's policies, but breaking privacy laws at the
state and federal level, including the Wiretap Act, which made it
illegal to intercept electronic communications without consent.
Another similar complaint (Mitchell v. Meta Platforms Inc.) was
filed last week.
The plaintiffs allege that Meta follows users' online activity by
funneling them into the web browser built into Facebook and
injecting JavaScript into the sites they visit. That code makes it
possible for the company to monitor "every single interaction with
external websites," including where they tap, and what passwords
and other text they enter:
Now, even when users do not consent to being tracked, Meta tracks
Facebook users' online activity and communications with external
third-party websites by injecting JavaScript code into those sites.
When users click on a link within the Facebook app, Meta
automatically directs them to the in-app browser it is monitoring
instead of the smartphone's default browser, without telling users
that this is happening or they are being tracked.
Apple introduced iOS 14.5 in April of last year, striking a massive
blow to social media companies like Meta that relied on tracking
users' behavior for advertising purposes. The company cited the iOS
changes specifically in its earning calls as it prepped investors
to adjust to the new normal for its ad targeting business,
describing Apple's privacy changes as a "headwind" that it would
need to overcome.
In a statement emailed to TechCrunch, a Meta spokesperson said the
allegations were "without merit" and that the company would defend
itself "vigorously." "We have carefully designed our in-app browser
to respect users' privacy choices, including how data may be used
for ads," the spokesperson said.
In the new iOS privacy prompt, Apple asks if a user consents to
have their activity tracked "across other companies' apps and
websites." Users who opt out might reasonably believe that they are
on an external web browser when opening links within Facebook or
Instagram, though the company would likely argue the opposite.
Security researcher Felix Krause surfaced concerns around Facebook
and Instagram's in-app browsers last month and the lawsuit draws
heavily from his report. He urged Meta to send users to Safari or
another external browser to close up the loophole.
"Do what Meta is already doing with WhatsApp: Stop modifying third
party websites, and use Safari or SFSafariViewController for all
third party websites," Krause wrote in a blog post. "It's what's
best for the user, and the right thing to do." [GN]
META PLATFORMS: Mitchell Sues Over Browsing Activity Interception
-----------------------------------------------------------------
Wayne Mitchell, individually and on behalf of all others similarly
situated v. META PLATFORMS, INC., Case No. 3:22-cv-05267-DMR (N.D.
Cal., Sept. 15, 2022), is brought seeking relief for all persons
who used Meta's Facebook or Messenger app and whose private
browsing activity and communications were surreptitiously
intercepted, monitored and recorded by Meta's in-app internet
browsers.
Beginning in April 2021, Apple's iOS 14 update required Meta to
obtain its users' informed consent before tracking their internet
activity on apps and third-party websites. As a result, Meta lost
access to its primary stream of revenue, derived from the user data
it obtained from this tracking. Now, even when users do not consent
to being tracked, Meta tracks Facebook users' online activity and
communications with external third-party websites by injecting
JavaScript code into those sites. When a user clicks on a web link
within the Facebook, Instagram, or Messenger app, Meta
automatically directs them to the in-app browser Meta monitors
instead of the user's default browser. Meta does not tell its users
this is happening or explain that they are being tracked.
The user information Meta intercepts, monitors, and records
includes personally identifiable information, private health
details, text entries, and other sensitive confidential facts.
Meta's undisclosed tracking of citizens' browsing activity and
communications violates federal and state wiretap laws and other
laws, entitling Plaintiff and Class members to damages. Plaintiff
and Class members also seek injunctive relief and equitable
remedies to stop Meta's undisclosed and nonconsensual tracking
practices, says the complaint.
The Plaintiff has had an active Facebook account for several years
and regularly accesses his account using the Facebook App on his
iPhone.
Meta is a multinational technology conglomerate that owns Facebook,
Instagram, and several other social media platforms, and offers a
widearray of products and services, including advertising and
marketing.[BN]
The Plaintiff is represented by:
John J. Nelson, Esq.
MILBERG COLEMAN BRYSON PHILLIPS GROSSMAN, PLLC
280 S. Beverly Drive
Beverly Hills, CA 90212
Phone: (858) 209-6941
Email: jnelson@milberg.com
- and -
Gary M. Klinger, Esq.
Alexandra M. Honeycutt, Esq.
MILBERG COLEMAN BRYSON PHILLIPS GROSSMAN, PLLC
227 W. Monroe Street, Suite 2100
Chicago, IL 60606
Phone: 866.252.0878
Email: gklinger@milberg.com
ahoneycutt@milberg.com
- and -
Nick Suciu III, Esq.
MILBERG COLEMAN BRYSON PHILLIPS GROSSMAN, PLLC
6905 Telegraph Rd., Suite 115
Bloomfield Hills, MI 48301
Phone: 313-303-3472
Fax: (865) 522-0049
Email: nsuciu@milberg.com
METHODIST MCKINNEY: Gleason Files Suit in E.D. Texas
----------------------------------------------------
A class action lawsuit has been filed against Methodist McKinney
Hospital, LLC. The case is styled as Sandra Gleason, individually
and on behalf of all others similarly situated v. Methodist
McKinney Hospital, LLC, Case No. 4:22-cv-00791-ALM (E.D. Tex.,
Sept. 13, 2022).
The nature of suit is stated as Other P.I. for Personal Injury.
Methodist McKinney Hospital --
https://methodistmckinneyhospital.com/ -- provides patient-focused
inpatient and outpatient services to the residents of McKinney,
Texas, and surrounding communities.[BN]
The Plaintiff is represented by:
John Charles Sherwood, Esq.
LAW OFFICE OF JOHN CHARLES SHERWOOD
The MAS Law Firm Building
212 W. Spring Valley Road
Richardson, TX 75081
Phone: (214) 696-1100
Fax: (888) 599-3005
Email: jsherwood@sherwoodlawoffice.com
- and -
William B. Federman, Esq.
FEDERMAN & SHERWOOD
10205 North Pennsylvania Ave
Oklahoma City, OK 73102
Phone: (405) 235-1560
Fax: (405) 239-2112
Email: wbf@federmanlaw.com
MGM RESORTS: Refuses to Refund Casino Players' Cash Change
----------------------------------------------------------
Abraham Jewett at topclassactions.com reports that MGM Resorts
International refuses to refund cash change to individuals gambling
at its casinos, a new class action lawsuit alleges.
Plaintiff Leane Scherer claims MGM has gotten "millions of dollars
in profits" by "shortchanging" thousands of its casino players.
Scherer argues MGM is effectively taxing players at its casino by
"manipulating the cash-out system employed by their electronic
gaming systems" to not pay any change on cash-out vouchers.
Instead of paying out the amount on the cash-out vouchers, MGM
rounds the ticket down to the nearest dollar, while, instead of
coins, providing a player with a "TRU Ticket" that shows the amount
of change leftover, according to the MGM class action.
"For the last few years, Defendants have essentially been keeping
the change off of hundreds of thousands of Gaming Vouchers,
essentially robbing their customers a few cents at a time, on
millions of transactions," states the MGM class action.
MGM accused of failing to provide instructions to players wanting
to obtain their change
Scherer argues further that MGM does not provide any instructions
on how players can use the TRU Ticket-which she says expires thirty
days after they are issued-to obtain their change.
"The Casinos fail to put an average player on reasonable notice
that the TRU Ticket can only be converted into cash at the cage,"
states the MGM class action.
Scherer wants to represent a nationwide class of individuals who,
since Sept. 19, 2012, visited a casino owned or operated by MGM and
was deprived of their change from a cash-out gaming voucher.
Scherer claims MGM is guilty of unjust enrichment and breach of
contract, among other things. She is asking for class certification
and for the complaint to be certified as a class action.
MGM agreed to pay $12.5 million in July to resolve claims it paid
tipped employees working as dealers at its Borgata Hotel Casino and
Spa and MGM National Harbor Casino below the legal minimum wage.
Have you been unable to obtain your change after gambling at an MGM
casino? Let us know in the comments!
The plaintiff is represented by Ryan J. Richmond, Scott L.
Sternberg, M. Suzanne Montero, Keith J. Naccari, and Graham H.
Williams of Sternberg Naccari & White LLC, and Lawrence J. Centola
III and Jason Z. Landry of Martzell Bickford & Centola.
The MGM casino skimming class action lawsuit is Scherer v. MGM
Resorts International, Case No. 1:22-cv-00258, in the U.S. District
Court for the Southern District of Mississippi.[GN]
MICHAELS STORES: Farst Sues Over Unlawful Interception
------------------------------------------------------
Jennifer Farst, individually and on behalf of all others similarly
situated v. MICHAELS STORES, INC., Case No. 1:22-cv-01433-CCC (M.D.
Pa., Sept. 14, 2022), is brought under the Pennsylvania Wiretapping
and Electronic Surveillance Control Act ("WESCA") stemming from the
Defendant's unlawful interception of the Plaintiff's and Class
members' electronic communications through the use of "session
replay" spyware that allowed the Defendant to watch and record
Plaintiff's and the Class members' visits to its website.
The Defendant utilized "session replay" spyware to intercept the
Plaintiff's and the Class members' electronic computer-to-computer
data communications with Defendant's website, including how they
interacted with the website, their mouse movements and clicks,
keystrokes, search terms, information inputted into the website,
and pages and content viewed while visiting the website. The
Defendant intercepted, stored, and recorded electronic
communications regarding the webpages visited by Plaintiff and the
Class members, as well as everything Plaintiff and the Class
members did on those pages, e.g., what they searched for, what they
looked at, the information they inputted, and what they clicked
on.
The Defendant intercepted the electronic communications at issue
without the knowledge or prior consent of Plaintiff or the Class
members. The Defendant did so for its own financial gain and in
violation of the Plaintiff's and the Class members' substantive
legal privacy rights under the WESCA, says the complaint.
The Plaintiff visited the Defendant's website 12 or more times over
the past year and recently visited on August 2022.
The Defendant owns and operates the following website:
www.michaels.com.[BN]
The Plaintiff is represented by:
Ari H. Marcus, Esq.
MARCUS ZELMAN LLC
701 Cookman Avenue, Suite 300
Asbury Park, NJ 07712
Phone: (732) 695-3282
Facsimile: (732) 298-6256
Email: Ari@marcuszelman.com
MONOGRAM AEROSPACE: Briceno Wage-and-Hour Suit Goes to C.D. Cal.
----------------------------------------------------------------
The case styled MARIO BRICENO, individually and on behalf of all
others similarly situated v. MONOGRAM AEROSPACE FASTENERS, INC.,
TRIMAS CORPORATION, and DOES 1-100, inclusive, Case No.
22STCV22010, was removed from the Superior Court of the State of
California, in and for the County of Los Angeles, to the U.S.
District Court for the Central District of California on September
14, 2022.
The Clerk of Court for the Central District of California assigned
Case No. 2:22-cv-06582 to the proceeding.
The case arises from the Defendants' alleged violations of the
California Labor Code and the California's Unfair Competition Law
including failure to pay minimum wages, failure to pay overtime
wages, failure to provide meal periods or compensation in lieu
thereof, failure to provide rest periods or compensation in lieu
thereof, failure to furnish accurate itemized wage statements,
failure to timely pay all wages due upon separation of employment,
failure to reimburse business expenses, and unfair competition.
Monogram Aerospace Fasteners, Inc. is an aviation and aerospace
component manufacturer based in Bloomfield Hills, Michigan.
TriMas Corporation is a manufacturer of engineered products,
headquartered in Bloomfield Hills, Michigan. [BN]
The Defendants are represented by:
Shareef S. Farag, Esq.
Christopher M. Habashy, Esq.
Nicholas D. Poper, Esq.
Kerri H. Sakaue, Esq.
BAKER & HOSTETLER LLP
11601 Wilshire Boulevard, Suite 1400
Los Angeles, CA 90025-0509
Telephone: (310) 820-8800
Facsimile: (310) 820-8859
E-mail: sfarag@bakerlaw.com
chabashy@bakerlaw.com
npoper@bakerlaw.com
ksakaue@bakerlaw.com
MONSANTO CO: Long Beach, et al., Seek Final OK of Class Settlement
------------------------------------------------------------------
In the class action lawsuit captioned as City of Long Beach, et
al., all individually and on behalf of all others similarly
situated, v. MONSANTO COMPANY; SOLUTIA INC., and PHARMACIA LLC, and
DOES 1 through 100, Case No. 2:16-cv-03493-FMO-AS (C.D. Cal.), the
Plaintiffs ask the Court to enter an order granting final approval
of the class action settlement.
The Plaintiffs are CITY OF LONG BEACH, a municipal corporation;
COUNTY OF LOS ANGELES, a political subdivision; CITY OF CHULA
VISTA, a municipal; CITY OF SAN DIEGO, a municipal corporation;
CITY OF SAN JOSE, a municipal corporation; CITY OF OAKLAND, a
municipal corporation; CITY OF BERKELEY, a municipal corporation;
CITY OF SPOKANE, a municipal corporation; CITY OF TACOMA, a
municipal corporation; CITY OF PORTLAND, a municipal corporation;
PORT OF PORTLAND, a port district of the State of Oregon; BALTIMORE
COUNTY, a political subdivision; MAYOR AND CITY COUNCIL OF
BALTIMORE.
The Monsanto Company was an American agrochemical and agricultural
biotechnology corporation founded in 1901 and headquartered in
Creve Coeur, Missouri.
A copy of the Plaintiffs' motion dated Sept. 1, 2022 is available
from PacerMonitor.com at https://bit.ly/3BchLDV at no extra
charge.[CC]
The Plaintiffs are represented by:
John Fiske, Esq.
Scott Summy, Esq.
Carla Burke Pickrel, Esq.
BARON & BUDD, P.C.
11440 W. Bernardo Court, Suite 265
San Diego, CA 92127
Telephone: (858) 251-7424
E-mail: SSummy@baronbudd.com
cburkepickrel@baronbudd.com
MUTUAL OF AMERICA: Goldstein Sues Over Breach of Fiduciary Duties
-----------------------------------------------------------------
Eric Goldstein, Matt Sudol, and Bonnie Zelazek, individually and as
representatives of a class of similarly situated persons, and on
behalf of the Mutual of America Life Insurance Company Savings Plan
v. Mutual of America Life Insurance Company, Case No. 1:22-cv-07862
(S.D.N.Y., Sept. 14, 2022), is brought under the Employee
Retirement Income Security Act of 1974 against Defendant who
breached its fiduciary duties with respect to the Plan at the
expense of the Plan and its participants and beneficiaries in
violation of ERISA.
By using its own proprietary recordkeeping platform and by failing
to monitor or control the Plan's administrative expenses, Mutual of
America caused plan participants to pay excessive administrative
fees. Mutual of America also applied an imprudent and disloyal
preference for its own proprietary funds within the Plan ("Mutual
of America Funds"), despite their poor performance and high costs.
Mutual of America's imprudent and disloyal conduct has cost plan
participants millions of dollars over the putative class period.
Mutual of America used its own proprietary closed-architecture
recordkeeping platform, causing participants to pay annual
administrative fees roughly ten times higher than what participants
would have paid for administrative services had Mutual of America
diligently investigated the marketplace and hired a third-party
recordkeeper to provide either the same set of services or services
of superior quality.
Mutual of America's imprudent and disloyal conduct has cost the
Plan and its participants millions of dollars in excessive fees and
lost investment returns since the start of the putative class
period. Based on Mutual of America's actions and omissions,
Plaintiffs assert a claim against Mutual of America for breaching
its fiduciary duties of loyalty and prudence. In connection with
this claim, Plaintiffs seek to recover all losses to the Plan
resulting from Mutual of America's fiduciary breaches, all profits
earned by Mutual of America in connection with its breaches or the
Plan's assets, and other appropriate relief, says the complaint.
The Plaintiffs has participated in the Plan or is a current
participant.
Mutual of America Life Insurance Company is an insurance company
headquartered and incorporated in New York.[BN]
The Plaintiffs are represented by:
Paul J. Lukas, Esq.
Brock J. Specht, Esq.
Grace I. Chanin, Esq.
NICHOLS KASTER, PLLP
4600 IDS Center, 80 S 8th Street
Minneapolis, MN 55402
Phone: 612-256-3200
Facsimile: 612-338-4878
Email: lukas@nka.com
bspecht@nka.com
gchanin@nka.com
NANAK GROCERY: Das Sues to Recover Overtime Compensation
--------------------------------------------------------
Mutki Das, on her own behalf and on behalf of similarly situated
individuals v. NANAK GROCERY, INC., KHADAG SINGH, Individually, and
DALBIR SINGH, Individually, Case No. 2:22-cv-05566 (D.N.J., Sept.
14, 2022), is brought to recover the overtime compensation that the
Plaintiff was deprived of, liquidated damages, treble damages, as
applicable, attorneys' fees, and costs as a result of the
Defendants' violation of the Fair Labor Standards Act and the New
Jersey State Wage and Hour Law, as amended under the New Jersey
Wage Theft Act.
The Plaintiff regularly worked 40 to 50 hours per workweek. The
Plaintiff rarely worked less than 40 hours in a workweek. The
Defendants refused to pay Plaintiff and similarly situated
employees' overtime for all of the overtime hours that they worked
in a work week in excess of 40 hours. The Defendants engaged in a
policy and practice of requiring Plaintiff and members of the
putative collective to regularly work in excess of 40 hours per
week, without providing overtime compensation as required by
applicable federal and New Jersey state law, says the complaint.
The Plaintiff was employed by Defendants as a cashier and stocker
performing duties in furtherance of Defendants' retail grocery
business, from in 2019 through in June 2022.
Nanak is a New Jersey corporation with its main business in Dayton,
New Jersey.[BN]
The Plaintiff is represented by:
Andrew Glenn, Esq.
Jodi J. Jaffe, Esq.
300 Carnegie Center, Suite 150
Princeton, NJe 08540
Phone: (201) 687-9977
Fax: (201) 595-0308
Email: aglenn@jaffeglenn.com
jjaffe@jaffeglenn.com
NASCAR DIGITAL MEDIA: Ortiz Sues Over Blind-Inaccessible Website
----------------------------------------------------------------
Joseph Ortiz, on behalf of himself and all other persons similarly
situated v. NASCAR DIGITAL MEDIA, LLC, Case No. 1:22-cv-00694-JLS
(W.D.N.Y., Sept. 13, 2022), is brought against the Defendant for
its failure to design, construct, maintain, and operate its website
to be fully accessible to and independently usable by Plaintiff and
other blind or visually-impaired people.
The Defendant's denial of full and equal access to its website, and
therefore denial of its products and services offered thereby, is a
violation of Plaintiff's rights under the Americans with
Disabilities Act. Because Defendant's website,
https://www.nascar.com/, is not equally accessible to blind and
visually-impaired consumers, it violates the ADA. The Plaintiff
seeks a permanent injunction to cause a change in the Defendant's
corporate policies, practices, and procedures so that the
Defendant's website will become and remain accessible to blind and
visually-impaired consumers, says the complaint.
The Plaintiff is a visually-impaired and legally blind person who
requires screen-reading software to read website content using his
computer.
The Defendant operates the NASCAR online retail store and
entertainment venue across the United States.[BN]
The Plaintiff is represented by:
Michael A. LaBollita, Esq.
Jeffrey M. Gottlieb, Esq.
Dana L. Gottlieb, Esq.
GOTTLIEB & ASSOCIATES
150 East 18th Street, Suite PHR
New York, NY 10003
Phone: 212.228.9795
Fax: 212.982.6284
Email: Michael@Gottlieb.legal
NATIONAL PSYCHIATRIC CARE: Tupper Files Suit in Cal. Super. Ct.
---------------------------------------------------------------
A class action lawsuit has been filed against National Psychiatric
Care and Rehabilitation Services Inc., et al. The case is styled as
Terra J. Tupper, individually and on behalf of all others similarly
situated v. National Psychiatric Care and Rehabilitation Services
Inc., National Home Health Services Inc., Fair Oaks Residential
Treatment Facility LLC, Does 1-20, Case No.
34-2022-00326696-CU-OE-GDS (Cal. Super. Ct., Sacramento Cty., Sept.
14, 2022).
The case type is stated as "Other Employment - Civil Unlimited."
National Psychiatric Care & Rehabilitation Services --
https://www.npcrs.com/ -- is a specialized treatment program. Call
our San Jose board certified psychiatrists.[BN]
The Plaintiff is represented by:
Samuel A. Wong, Esq.
AEGIS LAW FIRM, PC
9811 Irvine Center Drive Suite 100
Irvine, CA 92618
Phone: (949) 379-6250
Fax: (949) 379-6251
Email: swong@aegislawfirm.com
NEIGHBORHOOD HOUSING: Vargas Seeks Overtime Wages Under FLSA
------------------------------------------------------------
Alcides Vargas and other similarly situated individuals v.
Neighborhood Housing Services of South Florida, Inc., Case No.
1:22-cv-22952 (S.D. Fla., Sept. 15, 2022) seeks to recover money
damages for unpaid half-time overtime wages under the Fair Labor
Standards Act.
The Plaintiff and all other current and former employees similarly
situated to Plaintiff worked more than 40 hours during one or more
weeks on or after July 2021 without being adequately compensated,
the suit says.
NHSSF employed Plaintiff Alcides Vargas as a non-exempted,
full-time, salaried employee from July 16, 202, to May 25, 2022, or
45 weeks.
NHSSF is a Non-Profit Company dedicated to assisting first-time
buyers with homebuyer education, financial capability, and
homeownership Counseling services. NHSSF is also a full-service
mortgage broker company performing regular Real Estate Loans.[BN]
The Plaintiff is represented by:
Zandro E. Palma, Esq.
ZANDRO E. PALMA, P.A.
Florida Bar No.: 0024031
9100 S. Dadeland Blvd., Suite 1500
Miami, FL 33156
Telephone: (305) 446-1500
Facsimile: (305) 446-1502
E-mail: zep@thepalmalawgroup.com
NELNET SERVICING: Bump Sues Over Failure to Safeguard PII
---------------------------------------------------------
Pamela Bump, Melissa Charbonneau, Douglas Conley, Noah Helvey,
Dallin Iler, Dustin Jones, Devinne Peterson, Justin Randall, Sofia
Rodriguez, And Rachel Woods, individually and on behalf of all
others similarly situated v. NELNET SERVICING, LLC, Case No.
4:22-cv-03204-JMG-CRZ (D. Neb., Sept. 14, 2022), is brought against
Nelnet for its failure to properly secure and safeguard highly
valuable, protected personally identifiable information, including
without limitation, names, addresses, email addresses, phone
numbers, and Social Security numbers (collectively "PII"); failure
to comply with industry standards to protect information systems
that contain PII; unlawful disclosure of Plaintiffs' and Class
Members' PII; and failure to provide adequate notice to Plaintiffs
and other Class Members that their PII had been disclosed and
compromised.
On August 26, 2022, Nelnet began publicly notifying state Attorneys
General and 2,501,324 impacted current and former Nelnet account
holders that the PII of the 2,501,324 impacted individuals had been
accessed and stolen by an unauthorized third-party (the "Data
Breach"). By August 26, 2022, Nelnet had known of the data breach
for over a month but had failed to notify a single impacted
individual. Nelnet chose to notify individuals via U.S Mail in
letters entitled "Notice of Security Incident."
As a result of Nelnet's failures and lax security protocols,
hackers gained access to Nelnet's computer systems and/or servers
and were able to steal the personal information of millions of
customers, including their Social Security numbers, phone numbers,
emails, and addresses (the "Data Breach"). The Data Breach was a
direct and proximate result of Nelnet's flawed online system
configuration and design and Nelnet's failure to implement and
follow basic security procedures.
Because of Nelnet's failures, unauthorized individuals were able to
access and pilfer Plaintiffs' and Class Members' PII. As a result,
Plaintiffs and Class Members are at substantially increased risk of
future identity theft, both currently and for the indefinite
future. Plaintiffs' and Class Members' PII, including their Social
Security numbers, that were compromised by cyber criminals in the
Data Breach, is highly valuable because it is readily useable to
commit fraud and identity theft, says the complaint.
The Plaintiffs provided the Defendants their student loan account
registration information.
Nelnet is one of the largest student loan servicers in the United
States, servicing $589 billion in student loans for over 17 million
borrowers.[BN]
The Plaintiffs are represented by:
Joel M. Carney, Esq.
Jeana L. Goosmann, Esq.
Joseph V. Messineo, Esq.
GOOSMANN LAW FIRM, PLC
17838 Burke Street, Ste. 250
Omaha, NE 68118
Phone: (402) 280-7648
Email: carneyj@goosmannlaw.com
goosmannj@goosmannlaw.com
messineoj@goosmannlaw.com
- and -
Steven L. Bloch, Esq.
Ian W. Sloss, Esq.
Zachary Rynar, Esq.
SILVER GOLUB & TEITELL LLP
One Landmark Square
Fifteenth Floor
Stamford, CN 06901
Phone: (203) 325-4491
Fax: (203) 325-3769
Email: sbloch@sgtlaw.com
isloss@sgtlaw.com
zrynar@sgtlaw.com
- and -
Christian Levis, Esq.
Johnathan Seredynski, Esq.
LOWEY DANNENBERG, P.C.
44 South Broadway, Suite 1100
White Plains, NY 10601
Phone: (914) 997-0500
Fax: (914) 997-0035
Email: clevis@lowey.com
jseredynski@lowey.com
- and -
Anthony M. Christina, Esq.
LOWEY DANNENBERG, P.C.
One Tower Bridge
100 Front Street, Suite 520
West Conshohocken, PA 19428
Phone: (215) 399-4770
Fax: (914) 997-0035
Email: achristina@lowey.com
NELNET SERVICING: Sayers Files Suit in D. Nebraska
--------------------------------------------------
A class action lawsuit has been filed against Nelnet Servicing,
LLC. The case is styled as Mia Sayers, Kylee Williams, individually
and on behalf of all others similarly situated v. Nelnet Servicing,
LLC, Case No. 4:22-cv-03203-JMG-CRZ (E.D.N.Y., Sept. 14, 2022).
The nature of suit is stated as Other P.I. for Personal Injury.
Nelnet -- https://nelnetinc.com/ -- is the largest operating
businesses engage in student loan servicing, tuition payment
processing and school information systems, and communications.[BN]
The Plaintiffs are represented by:
Maureen M. Brady, Esq.
MCSHANE, BRADY LAW FIRM
1656 Washington Street, Suite 120
Kansas City, MO 64108
Phone: (816) 888-8010
Email: mbrady@mcshanebradylaw.com
- and -
William B. Federman, Esq.
FEDERMAN, SHERWOOD LAW FIRM
10205 North Pennsylvania Avenue
Oklahoma City, OK 73120
Phone: (405) 235-1560
Email: wbf@federmanlaw.com
NEW G NAILS: Sun Sues Over Unpaid Minimum and Overtime Wages
------------------------------------------------------------
Chengxue Sun, on her own behalf and on behalf of others similarly
situated v. NEW G NAILS & SPA INC d/b/a G Nails & Spa; MINGDA LIU
a/k/a Ming Da Liu, and LINGYAN GAO a/k/a Ling Yan Gao, Case No.
2:22-cv-05523-GRB-ST (E.D.N.Y., Sept. 15, 2022), is brought
pursuant the Fair Labor Standards Act and New York Labor Law to
recover from the Defendants unpaid minimum wage and unpaid overtime
wages, unpaid spread-of-hours premium, liquidated damages,
prejudgment and post-judgement interest; and or attorney's fees and
cost.
The Defendants have willfully, maliciously, and intentionally
committed widespread violations of the FLSA and NYLL by engaging in
pattern and practice of failing to pay its employees, including the
Plaintiff, minimum wage for each hour worked and overtime
compensation for all hours worked over 40 each workweek, says the
complaint.
The Plaintiff was employed by the Defendants to work as a Nail
salon worker,
NEW G NAILS & SPA INC d/b/a G Nails & Spa is a domestic business
corporation organized under the laws of the State of New York.[BN]
The Plaintiff is represented by:
John Troy, Esq.
TROY LAW, PLLC
41-25 Kissena Boulevard Suite 103
Flushing, NY 11355
Phone: (718) 762-1324
Email: johntroy@troypllc.com
NEW YUNG: Xia, et al., Seek to Certify Rule 23 Class
-----------------------------------------------------
In the class action lawsuit captioned as Xia, et al., v. New Yung
Wah Carrier LLC, et al., Case No. 1:21-cv-04475-HG-VMS (E.D.N.Y.),
the Plaintiffs ask the Court to enter an order granting their
motion for class certification pursuant to FRCP 23.
The Plaintiffs include CHUNYU XIA, SIAN GAO, PING AN LI, FNU
LOBSANG MONLAM, DESHENG JIANG, ENLIN GU, on behalf of themselves
and all others similarly situated, BAO JIN XU, JIN FU HUANG,
JIANPING WU, QIANG LI, YING JIE WANG, JIAN HUA ZHENG, TIN SOON
WONG, YI TIM CHENG, YUE G. CHEN, YOUWEN YUAN, KUN WANG, MIN CHEN,
JIANGNIE CHEN, CHONGLI YANG, YUN DENG ZHANG, JIAXIN ZHOU, NAIQI LI,
QINGWEI YUAN, YA CHEN, GENGHAI ZHANG, GUO QIANG LI, BAOZHOU LIAN,
JUN LIANG, SHIGANG TIAN, XIANMING WANG, ZUNCHANG LIN, SHI HAN YAN,
and XIUCHUN WANG.
The Defendants include NEW YUNG WAH CARRIER, LLC, NEW YUNG WAH
TRADING, LLC, XIN PING ZHENG, JUAN QING LIN, JOHN DOE 1-5, JANE DOE
1 a/k/a LINDA P. ZHENG a/k/a YU JIE ZHENG a/k/a YU MEI ZHENG a/k/a
YU ZHENG N. ZHENG, JANE DOE 2 a/k/a LINDA P. ZHENG a/k/a YU JIE
ZHENG a/k/a YU MEI ZHENG a/k/a YU ZHENG N. ZHENG, JANE DOE 3-5,
COMPANY ABC 1-5.
A copy of the Plaintiffs' motion dated Sept. 2, 2022 is available
from PacerMonitor.com at https://bit.ly/3xTAp2L at no extra
charge.[CC]
The Plaintiffs are represented by:
Heng Wang, Esq.
HENG WANG & ASSOCIATES, P.C.
305 Broadway, 7 th Floor
New York, NY 10007
Telephone: (212) 203-5231
Facsimile: (212) 203-5237
E-mail: heng.wang@wanggaolaw.com
NFL: James Sues Over Unlawful Disclosure of Personal Data
---------------------------------------------------------
Israel James, individually and on behalf of all others similarly
situated v. NATIONAL FOOTBALL LEAGUE, Case No. 1:22-cv-04984 (N.D.
Ill., Sept. 14, 2022), is brought against Defendant for violations
of the federal Video Privacy Protection Act from Defendant's
practice of knowingly disclosing to a third party, Meta Platforms,
Inc. ("Facebook"), data containing the Plaintiff's and other
digital-subscribers Class Members' (i) personally identifiable
information or Facebook ID ("FID") and (ii) the computer file
containing video and its corresponding URL viewed ("Video Media")
(collectively, "Personal Viewing Information").
This is a consumer digital privacy class action complaint against
National Football League, as the owner of NFL.com, for violating
the VPPA by disclosing its digital subscribers' identities and
Video Media to Facebook without the proper consent. The VPPA
prohibits "video tape service providers," such as NFL.com, from
knowingly disclosing consumers' personally identifiable
information, including "information which identifies a person as
having requested or obtained specific video materials or services
from a video tape provider," without express consent in a
stand-alone consent form.
The Facebook pixel is a code Defendant installed on NFL.com
allowing it to collect users' data. More specifically, it tracks
when digital subscribers enter NFL.com or NFL.com's accompanying
App and view Video Media. NFL.com tracks and discloses to Facebook
the digital subscribers' viewed Video Media, and most notably, the
digital subscribers' FID. This occurs even when the digital
subscriber has not shared (nor consented to share) such
information. Importantly, Defendant shares the Personal Viewing
Information--i.e., digital subscribers' unique FID and video
content viewed--together as one data point to Facebook. Because the
digital subscriber's FID uniquely identifies an individual's
Facebook user account, Facebook--or any other ordinary person--can
use it to quickly and easily locate, access, and view digital
subscribers' corresponding Facebook profile. Put simply, the pixel
allows Facebook to know what Video Media one of its users viewed on
NFL.com.
Thus, without telling its digital subscribers, Defendant profits
handsomely from its unauthorized disclosure of its digital
subscribers' Personal Viewing Information to Facebook. It does so
at the expense of its digital subscribers' privacy and their
statutory rights under the VPPA. Because NFL.com digital
subscribers are not informed about this dissemination of their
Personal Viewing Information--indeed, it is automatic and
invisible--they cannot exercise reasonable judgment to defend
themselves against the highly personal ways NFL.com has used and
continues to use data it has about them to make money for itself.
The Defendant chose to disregard Plaintiff's and hundreds of
thousands of other NFL.com digital subscribers' statutorily
protected privacy rights by releasing their sensitive data to
Facebook. Accordingly, the Plaintiff brings this class action for
legal and equitable remedies to redress and put a stop to the
Defendant's practices of intentionally disclosing its digital
subscribers' Personal Viewing Information to Facebook in knowing
violation of VPPA, says the complaint.
The Plaintiff began a digital subscription to NFL.com in 2015 which
continues to this day.
Move, Inc. is a private corporation headquartered in Santa Clara,
California, and the owner of NFL.com.[BN]
The Plaintiff is represented by:
Brandon M. Wise, Esq.
Paul A. Lesko, Esq.
Adam Florek, Esq.
PEIFFER WOLF CARR KANE CONWAY & WISE, LLP
818 Lafayette Ave., Floor 2
St. Louis, MO 63104
Phone: 314-833-4825
Email: bwise@peifferwolf.com
plesko@peifferwolf.com
aflorek@peifferwolf
- and -
Patrick Muench, Esq.
BAILEY & GLASSER LLP
318 W. Adams St., Ste. 1512
Chicago, IL 60606
Phone: 312.500.8680
Email: pmuench@baileyglasser.com
- and -
Michael L. Murphy, Esq.
BAILEY & GLASSER LLP
1055 Thomas Jefferson Street NW, Suite 540
Washington, DC 20007
Phone: 202.494.3531
Email: mmurphy@baileyglasser.com
NORTHERN STATES POWER: Ly Files Suit in Minn. 4th Judicial Dist.
----------------------------------------------------------------
A class action lawsuit has been filed against Northern States Power
Company. The case is styled as Amanda Ly, Casey Finne, Michele
Dutcher, Muhammed Jackson, Lisa Kieffer, Todd Knust, individually
and on behalf of all others similarly situated v. Northern States
Power Company d/b/a XCEL ENERGY, Case No. 27-CV-22-13356 (Minn. 4th
Judicial Dist., Hennepin Cty., Sept. 13, 2022).
The case type is stated as "Other Civil."
Northern States Power Company d/b/a Xcel Energy --
https://my.xcelenergy.com/ -- is a public utility that provides
natural gas service to customers throughout the
State of Minnesota.[BN]
The Plaintiff is represented by:
Adam J. Kress, Esq.
Zackary S. Kaylor, Esq.
JOHNSON BECKER PLLC
444 Cedar Street, Suite 1800
St. Paul, MN 55101
Phone: (612) 436-1908
Fax: (612) 436-4801
Email: akress@johnsonbecker.com
zkaylor@johnsonbecker.com
- and –
Michael Steifman, Esq.
Steven P. Knowlton, Esq.
STEIFMAN LLP
292 Montauk Highway
South Hampton, New York 11968
Phone: 718-645-4100
Email: ms@steifmanlaw.com
sknowlton@steifmanlaw.com
- and –
James R. DeMay, Esq.
Patrick M. Wallace, Esq.
Victoria J. Maniatis, Esq.
Melissa K. Sims, Esq.
MILBERG COLEMAN BRYSON PHILLIPS GROSSMAN, PLLC
100 Garden City Plaza
Garden City, NY 11530
Phone: (800) 530-9800
Email: jdemay@milberg.com
pwallace@milberg.com
vmaniatis@milberg.com
msims@milberg.com
OKCOIN USA: Nguyen Files Suit in Cal. Super. Ct.
------------------------------------------------
A class action lawsuit has been filed against Okcoin USA Inc. The
case is styled as Michael Nguyen, Nader George, individually and on
behalf of other similarly situated individuals v. Okcoin USA Inc.,
Does 1-10, Case No. CGC22601712 (Cal. Super. Ct., San Francisco
Cty., Sept. 13, 2022).
The case type is stated as "Business Tort."
Okcoin -- https://www.okcoin.com/ -- is a secure cryptocurrency
exchange which makes it easy buy Bitcoin, Ethereum, Dogecoin, and
other cryptos.[BN]
The Plaintiff is represented by:
Elizabeth A. Kramer, Esq.
ERICKSON KRAMER OSBORNE LLP
44 Tehama St.
San Francisco, CA 94105-3110
Phone: 415-635-0631
Fax: 415-599-8088
Email: elizabeth@eko.law
- and -
Trenton R. Kashima, Esq.
MILBERG COLEMAND BRYSON PHILLIPS GROSSMA
402 W Broadway, Ste.1760
San Diego, CA 92101-8546
Email: TKashima@milberg.com
ONEIDA NATION ENTERPRISES: Maddy Files ADA Suit in S.D. New York
----------------------------------------------------------------
A class action lawsuit has been filed against Oneida Nation
Enterprises, LLC. The case is styled as Veronica Maddy, on behalf
of herself and all others similarly situated v. Oneida Nation
Enterprises, LLC, Case No. 1:22-cv-07872 (S.D.N.Y., Sept. 14,
2022).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Oneida Nation Enterprises (ONE) -- https://www.onenterprises.com/
-- is a diverse organization comprised of thriving hospitality,
gaming, recreation, retail and service brands.[BN]
The Plaintiff is represented by:
Mars Khaimov, Esq.
10826 64th Avenue, Ste. 2nd Floor
Forest Hills, NY 11375
Phone: (917) 915-7415
Email: mars@khaimovlaw.com
OVERBY-SEAWELL CO: Fails to Secure Customers' Info, Sheckard Says
-----------------------------------------------------------------
SCOTT SHECKARD and MARGARET SHECKARD, individually, and on behalf
of all others similarly situated, v. OVERBY-SEAWELL COMPANY and
FULTON BANK, N.A., Case No. 1:22-cv-03708-SDG (N.D. Ga., Sept. 14,
2022) alleges that the Defendants failed to secure and safeguard
their and over 100,774 other individuals' personally identifiable
information (PII), including names, loan numbers, mailing
addresses, collateral addresses, telephone numbers, loan amounts,
loan maturity dates, insurance policy information, and Social
Security numbers.
According to the complaint, between May 26, 2022 and July 5, 2022,
unauthorized individuals had access to OSC's network systems and
acquired the PII of Plaintiffs and Class members (the Data Breach).
The Defendants owed a duty to Plaintiffs and Class members to
implement and maintain reasonable and adequate security measures to
secure, protect, and safeguard their PII against unauthorized
access and disclosure. The Defendants breached that duty by, among
other things, failing to implement and maintain reasonable security
procedures and practices to protect their PII from unauthorized
access and disclosure, says the suit.
As a result of the Defendants' inadequate security and breach of
their duties and obligations, the Data Breach occurred, and the
Plaintiffs' and Class members' PII was accessed and disclosed. The
action seeks to remedy these failings and their consequences.
Plaintiffs bring this action on behalf of themselves and all
persons whose PII was exposed as a result of the Data Breach, which
OSC learned of on or about July 5, 2022.
The Plaintiffs, on behalf of themselves and all other Class
members, assert claims for negligence, negligence per se, breach of
implied contract, unjust enrichment, and violation of the
Pennsylvania Unfair Trade Practices and Consumer Protection Law,
and seek declaratory relief, injunctive relief, monetary damages,
statutory damages, punitive damages, equitable relief, and all
other relief authorized by law.
OSC is a company that provides various services to financial
companies, such as compliance, tracking, outsourcing, and insurance
services.
Fulton is a bank that operates in Pennsylvania, New Jersey,
Delaware, Maryland, and Virginia. Fulton provides PII to OSC in
connection with receiving property insurance validation.[BN]
The Plaintiff is represented by:
James M. Evangelista, Esq.
Kristi Stahnke McGregor, Esq.
EVANGELISTA WORLEY, LLC
500 Sugar Mill Road, Ste. 245A
Atlanta, GA 30350
Telephone: (404) 205-8400
E-mail: jim@ewlawllc.com
- and -
Ben Barnow, Esq.
Anthony L. Parkhill, Esq.
Riley W. Prince, Esq.
BARNOW AND ASSOCIATES, P.C.
205 West Randolph Street, Ste. 1630
Chicago, IL 60606
Telephone: (312) 621-2000
Facsimile: (312) 641-5504
E-mail: b.barnow@barnowlaw.com
aparkhill@barnowlaw.com
rprince@barnowlaw.com
OVERTIME SPORTS: Slade Files ADA Suit in S.D. New York
------------------------------------------------------
A class action lawsuit has been filed against Overtime Sports, Inc.
The case is styled as Linda Slade, individually and as the
representative of a class of similarly situated persons v. Overtime
Sports, Inc., Case No. 1:22-cv-07844 (S.D.N.Y., Sept. 14, 2022).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Overtime -- https://overtime.tv/ -- is a sports media company
geared towards Generation Z sports fans. The company distributes
original sports content on social media outlets, including
Facebook, Snapchat, and YouTube and sells apparel with its logos
and branding.[BN]
The Plaintiff is represented by:
Dan Shaked, Esq.
SHAKED LAW GROUP, P.C.
14 Harwood Court, Suite 415
Scarsdale, NY 10583
Phone: (917) 373-9128
Email: shakedlawgroup@gmail.com
PALO BLANCO: Fails to Provide Proper Wages, Echavarria Says
-----------------------------------------------------------
YENSI MIGUEL SOTO ECHAVARRIA, on behalf of himself and all other
persons similarly situated, Plaintiff v. PALO BLANCO DELI GROCERY,
CORP., 750 ASTOR DELI & GROCERY, CORP., JOSE A. CASTILLO, and
VLADIMIR CASTILLO, Defendants, Case No. 1:22-cv-07614 (S.D.N.Y.,
Sept. 7, 2022) arises from the Defendants' alleged violations of
the Fair Labor Standards Act, the New York Labor Law, and the New
York Wage Theft Prevention Act.
The Plaintiff was employed performing labor and deli work at
Defendants' corner store from approximately June 2019 until
approximately August 19, 2022. He regularly worked more than 40
hours per week. Throughout his employment, Plaintiff did not
receive statutory minimum wage, overtime pay for hours worked over
40 per week, or spread of hours pay. Additionally, the Plaintiff
did not receive wage notices or statements at the end of each
period, says the suit.
Palo Blanco Deli Grocery, Corp. owns, operates, and does business
as seafood restaurant in Bronx, New York.[BN]
The Plaintiff is represented by:
Clifford Tucker, Esq.
SACCO & FILLAS, LLP
31-19 Newtown Avenue Seventh Floor
Astoria, NY 11102
Telephone: (718) 269-2243
E-mail: CTucker@SaccoFillas.com
PATRIOT OUTFITTERS: Ortiz Files ADA Suit in W.D. New York
---------------------------------------------------------
A class action lawsuit has been filed against Patriot Outfitters,
LLC. The case is styled as Joseph Ortiz, on behalf of himself and
all other persons similarly situated v. Patriot Outfitters, LLC,
Case No. 1:22-cv-00698 (W.D.N.Y., Sept. 14, 2022).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Patriot Outfitters -- https://www.patriotoutfitters.com/ -- is an
online shop for the military & tactical gear, including authorized
uniforms, boots & equipment, from Nike, Oakley, 5.11 & other top
brands.[BN]
The Plaintiff is represented by:
Jeffrey M. Gottlieb, Esq.
GOTTLIEB & ASSOCIATES
150 E. 18th Street, Suite PHR
New York, NY 10003
Phone: (212) 228-9795
Fax: (212) 982-6284
Email: jeffrey@gottlieb.legal
- and -
Michael A. LaBollita, Esq.
GOTTFRIED & GOTTFRIED, LLP
122 East 42nd. St., Suite 620
New York, NY 10168
Phone: (212) 228-9795
Email: michael@gottlieb.legal
PBF LOGISTICS: Monteverde & Associates Probes Securities Suit
-------------------------------------------------------------
Juan Monteverde, founder and managing partner of the class action
firm Monteverde & Associates PC (the "M&A Class Action Firm"), a
national securities firm rated Top 50 in the 2018-2021 ISS
Securities Class Action Services Report and headquartered at the
Empire State Building in New York City, is investigating:
PBF Logistics LP (NYSE:PBFX), relating to its proposed acquisition
by PBF Energy Inc. (PBF) Under the terms of the merger, each
outstanding common unit of PBFX that PBF does not own will be
converted into 0.270 shares of PBF Energy Class A common stock and
$9.25 in cash. Click here for more information:
https://www.monteverdelaw.com/case/pbf-logistics-lp. It is free and
there is no cost or obligation to you.
About Monteverde & Associates PC
We are a national class action securities litigation law firm that
has recovered millions of dollars and is committed to protecting
shareholders from corporate wrongdoing. We were listed in the Top
50 in the 2018-2021 ISS Securities Class Action Services Report.
Our lawyers have significant experience litigating Mergers &
Acquisitions and Securities Class Actions. Mr. Monteverde is
recognized by Super Lawyers as a Rising Star in Securities
Litigation in 2013, 2017-2019, an award given to less than 2.5% of
attorneys in a particular field. He has also been selected by
Martindale-Hubbell as a 2017-2021 Top Rated Lawyer. Our firm's
recent successes include changing the law in a significant victory
that lowered the standard of liability under Section 14(e) of the
Exchange Act in the Ninth Circuit. Thereafter, our firm
successfully preserved this victory by obtaining dismissal of a
writ of certiorari as improvidently granted at the United States
Supreme Court. Emulex Corp. v. Varjabedian, 139 S. Ct. 1407 (2019).
Also, in 2019 we recovered or secured six cash common funds for
shareholders in mergers & acquisitions class action cases.
If you own common stock in any of the above listed companies and
wish to obtain additional information and protect your investments
free of charge, please visit our website or contact Juan E.
Monteverde, Esq. either via e-mail at jmonteverde@monteverdelaw.com
or by telephone at (212) 971-1341. [GN]
PERGOLA 36: Faces Racial Discrimination Class Action in New York
----------------------------------------------------------------
Larry McShane at nydailynews.com reports that a Manhattan class
action lawsuit filed charged two Black customers were turned away
from a popular hookah lounge in what they call a "clear pattern" of
racial discrimination.
A bouncer at the Flatiron district's Pergola lounge asked the pair
to leave in January, declaring the manager "doesn't let your kind
of Black people in here," according to the federal court filing.
Joshua Smith and Cameron Niles were initially rebuffed for dressing
too casually before learning the real motivation for what occurred,
the lawsuit alleged.
The two left the lounge "utterly humiliated to be barred from a
restaurant because of their race, as though they were living in the
Jim Crow South instead of New York City circa 2022," the 29-page
suit recounted.
"Pergola's history of casual racism has caused untold humiliation
and psychological harm to dozens, if not hundreds of Black patrons
over the years," said Susan Crumiller, lawyer for Smith, Niles and
proposed clients in the class action suit.
"Our hope is that by pursuing these claims on a class-wide basis,
we are sending a message to Pergola that its racist behavior has
got to stop. Period."
Smith and Niles, dressed in button-down shirts and pants, were
described as bewildered by their rejection shortly after they
arrived in an Uber for their dinner reservation.
"Their confusion turned to pain and humiliation when they
immediately observed a group of white patrons leaving the
restaurant in jeans and sweatpants," the lawsuit charged. "It
became clear that Pergola was selectively invoking its dress code
as a pretext to deny Smith and Niles entry due to their race."
The class action suit intends to cover all "black and brown patrons
and/or attempted patrons" denied entry to the lounge, noting that
Smith and Niles later learned "they were far from the only black
people to be barred . . . or otherwise treated as second-class
citizens based on their race," court papers said.
A former bouncer at the business also came forward with first-hand
details "regarding the systematic exclusion of Black and/or brown
patrons," the lawsuit asserted.
The filing included multiple social media posts showing white
customers inside the business wearing ripped jeans, baseball caps,
T-shirts and denim shirts, while no people of color were
represented.
Pergola owner Moutaz Ali dismissed the racism charge as unfounded
and inaccurate.
"More than 50% of Pergola guests are people of color," he wrote in
an email. "The head of security and four out of five security
guards are African-Americans. Anyone who came to Pergola knows how
ridiculous these allegations are."
The restaurant web site boasts that "from formal dining to late
night revelry, PERGOLA truly is A CULTURE OF ITS OWN."
The lawsuit seeks punitive and compensatory damages along with
"further relief as the court may deem proper."
According to the court filing, both men remain deeply affected by
their mistreatment at the restaurant.
"To this day, they become anxious when approaching bar, restaurants
. . . which trigger painful memories," the paperwork said. [GN]
PFIZER INC: Lima Files Suit in D. Minnesota
-------------------------------------------
A class action lawsuit has been filed against Seed to Pfizer, Inc.
The case is styled as Kathleen Lima, individually and on behalf of
all others similarly situated v. Pfizer, Inc., Case No.
0:22-cv-02243-JRT-DJF (D. Minn., Sept. 14, 2022).
The nature of suit is stated as Contract Product Liability.
Pfizer Inc. -- https://www.pfizer.com/ -- is an American
multinational pharmaceutical and biotechnology corporation
headquartered on 42nd Street in Manhattan, New York City.[BN]
The Plaintiff is represented by:
Ashleigh Raso, Esq.
MESHBESHER & SPENCE, LTD
1616 Park Avenue
Minneapolis, MN 55404
Phone: (612) 339-9121
Fax: (612) 339-9188
Email: araso@meshbesher.com
PHL VARIABLE: Advance Trust, et al., Seek Class Certification
-------------------------------------------------------------
In the class action lawsuit captioned as ADVANCE TRUST & LIFE
ESCROW SERVICES, LTA, AS NOMINEE OF LIFE PARTNERS POSITION HOLDER
TRUST, and KENNEY, on behalf of themselves and all others similarly
situated, v. PHL VARIABLE INSURANCE COMPANY, Case No.
1:18-cv-03444-MKV (S.D.N.Y.), the Plaintiffs ask the Court to enter
an order certifying this case, which consists of claims for breach
of contract, as a class action pursuant to Federal Rule of Civil
Procedure 23(b)(3) on behalf of the following 2017 COI Increase
Class:
"All owners of PAUL and PEL policies issued by PHL Variable
Insurance Company whose policies experienced a cost of
insurance rate increase between (i) November 5, 2017 and (ii)
the policy anniversary date following December 31, 2020
(excluding Defendant PHL Variable Insurance Company, its
officers and directors, members of their immediate families,
and the heirs, successors or assigns of any of the
foregoing)."
Also excluded are Conestoga Trust and Conestoga Trust
Services, LLC, which are plaintiffs in separate litigation
against PHL. For the avoidance of doubt, a policy did not
experience a COI rate increase if—due to an agreement with
PHL Variable Insurance Company, or an affiliate thereof—the
amount charged pursuant to a COI rate increase was reimbursed
or rebated.
The Plaintiffs move, alternatively, for the certification of the
following Alternative Classes and the appointment of the
corresponding Class Representatives:
-- Four-Corners States Class
"Members of the 2017 COI Increase Class, excluding owners
of record with PHL whose policies were issued in Alaska,
Arizona, California, Iowa, Montana, New Mexico, Tennessee,
Texas, Utah, Vermont, Washington, and Wyoming (Plaintiffs
Advance Trust and James Kenney);"
-- Four-State Class
"Members of the 2017 COI Increase Class whose policies
were issued in California, Delaware, Minnesota, or
Missouri (Plaintiffs Advance Trust and James Kenney)’"
-- Enumerated Factors Class
"Members of the 2017 COI Increase Class, excluding owners
of record with PHL whose policies were issued under policy
form U612 (Plaintiffs Advance Trust and James Kenney);"
-- Previously Redetermined Products Class
"Members of the 2017 COI Increase Class who own policies
in the PAUL 2C, PAUL 3, PAUL 3A, PAUL 3B, or PAUL 3C
product/series (Plaintiffs Advance Trust and James
Kenney);"
-- Unfair Discrimination Class
"Members of the 2017 COI Increase Class who own policies
issued under policy forms 05PAUL and 08PAUL, which provide
that changes in COI rates must “not discriminate unfairly
within any class of insureds;"
-- Uniformity Class
"Members of the 2017 COI Increase Class who own policies
issued under policy forms U606 and U612, which provide
that "any change in rates will be made on a uniform
basis for all insureds in the same class" (Plaintiffs
Advance Trust and James Kenney)."
-- PAUL 2C Class
"Members of the 2017 COI Increase Class who own policies
in the PAUL 2C product/series (Plaintiffs Advance Trust
and James Kenney);"
-- PAUL 3 Class
"Members of the 2017 COI Increase Class who own policies
in the PAUL 3A product/series (Plaintiff Advance Trust);"
PAUL 3A Class
"Members of the 2017 COI Increase Class who own policies
in the PAUL 3A product/series (Plaintiff Advance Trust).
The Plaintiffs also move for the appointment of Susman Godfrey
L.L.P. as Class Counsel for the Classes.
PHL operates as an insurance firm. The Company offers life
insurance and annuity services.
A copy of the Plaintiffs' motion dated Sept. 2, 2022 is available
from PacerMonitor.com at https://bit.ly/3UjgzqT at no extra
charge.[CC]
The Plaintiffs are represented by:
Seth Ard, Esq.
Ryan Kirkpatrick, Esq.
Komal Patel, Esq.
SUSMAN GODFREY L.L.P.
1301 Avenue of the Americas, 32nd Floor
New York, NY 10019-6023
Telephone: (212) 336-8330
Facsimile: (212) 336-8340
E-mail: sard@susmangodfrey.com
rkirkpatrick@susmangodfrey.com
kpatel@susmangodfrey.com
- and -
Steven G. Sklaver, Esq.
Krysta Kauble Pachman, Esq.
Michael Adamson, Esq.
SUSMAN GODFREY LLP
1900 Avenue of the Stars, Suite 1400
Los Angeles, CA 90067-6029
Telephone: (310) 789-3100
Facsimile: (310) 789-3150
E-mail: ssklaver@susmangodfrey.com
kpachman@susmangodfrey.com
madamson@susmangodfrey.com
PLAINS ALL: $230-M Settlement in Oil Spill Suit Gets Final OK
-------------------------------------------------------------
edhat.com reports that a Federal Judge gave final approval of a
$230 million class action settlement from the Plains All American
Pipeline oil spill at Refugio Beach in 2015.
On September 20, Federal District Court Judge Philip S. Gutierrez's
final approval clears the way for the settlement administrator to
begin processing and paying claims submitted by affected fishers
and property owners. The settlement was achieved by Class Counsel
Cappello & Noel LLP, Lieff Cabraser Heimann & Bernstein LLP, Keller
Rohrback LLP, and Audet & Partners.
The settlement includes $184 million to a class of fishers and
processors who operated in the areas impacted by the oil spill, as
well as $46 million to compensate owners and lessees of property
affected by the spill. These amounts, net of attorneys' fees,
costs, and administration expenses, will be distributed to class
members who timely submit claims, based on a court-approved
distribution plan.
Before the spill, 130 miles of Plains-operated pipeline was used to
transport crude oil from the Gaviota coast in Santa Barbara County
to inland refineries in California. Due to failed maintenance and
extensive pipeline corrosion, the pipeline ruptured and spilled,
killing wildlife, devastating the fishing industry, and soiling
coastal properties from Santa Barbara County to Los Angeles
County.
Plains was found criminally liable in 2018 for the oil spill, and
this civil settlement was reached as the parties prepared for a
civil jury trial slated for June 2022.
Individuals who believe they may be eligible may contact the
court-appointed administrator, JND Legal, to obtain further
information about the settlement, determine whether they are
members of the class and, if so, submit their claim forms. The
deadline to file a claim is October 31, 2022.
Information about the settlement, including copies of the claim
form and instructions on how to submit a claim, are available via
the dedicated settlement website, or by contacting JND via email
(info@PlainsOilSpilSettlement.com), telephone (1-844-202-9486) or
mail (Plains Oil Spill Settlement c/o JND Legal Administration,
P.O. Box 91450, Seattle, WA 98111). [GN]
POP A LOCK: Faces Garcia Suit Over Unpaid Wages, Discrimination
---------------------------------------------------------------
TALIK GARCIA, on behalf of himself, FLSA Collective Plaintiffs, and
the Class, Plaintiff v. POP A LOCK NEW YORK INC., AUTOMOTIVE
LOCKSMITH SUPPLY INC., ALL CITY SERVICES & DISPATCH INC., CARL
NAPOLITANO, NICHOLAS NAPOLITANO, and JENNIFER CANNIZZARO,
Defendant, Case No. 1:22-cv-05305 (E.D.N.Y., Sept. 7, 2022) arises
from the Defendants' alleged violations of the Fair Labor Standards
Act, the New York Labor Law, the New York State Human Rights Law,
and the New York City Human Rights Law.
The Plaintiff seeks to recover from Defendants unpaid wages,
including overtime, due to an impermissible policy of rounding
hours down; unreimbursed costs for tools of the trade; liquidated
damages; statutory penalties; and attorneys' fees and costs
pursuant to FLSA and NYLL. She also asserts that she is entitled to
recover from Defendants for hostile work environment created by
racial discrimination, back wages, compensatory and punitive
damages, as well as attorneys' fees and costs pursuant to NYSHRL
and NYCHRL.
Plaintiff Garcia was hired by Defendants in October 2021 to work as
a driver out of a building located in Staten Island, New York. His
employment with Defendants was terminated on June 26, 2022.
Pop A Lock New York Inc. owns and operates a locksmith in Staten
Island, New York.[BN]
The Plaintiff is represented by:
C.K. Lee, Esq.
Anne Seelig, Esq.
LEE LITIGATION GROUP, PLLC
148 West 24th Street, 8th Floor
New York, NY 10011
Telephone: (212) 465-1188
Facsimile: (212) 465-1181
PRIORITY PAYMENT: Celluci Suit Moved From S.D. Fla. to D. Mass.
---------------------------------------------------------------
The case styled ANTHONY CELLUCI, individually and on behalf of all
others similarly situated v. KEVIN STATEN, EDWIN GONZALEZ, NATALIA
YENATSKA, PRIORITY PAYMENT CORP., and THOMAS A. WELLS, Case No.
1:22-cv-22083, was transferred from the U.S. District Court for the
Southern District of Florida to the U.S. District Court for the
District of Massachusetts on September 14, 2022.
The Clerk of Court for the District of Massachusetts assigned Case
No. 4:22-cv-40100-TSH to the proceeding.
The case arises from the Defendants' tortious aiding and abetting
the Ponzi schemes of TelexFree, Inc., TelexFree LLC, TelexFree
Financial, Inc., and their related entities, insiders and
associates. In reality, TelexFree had virtually no income from its
purported business.
Priority Payment Corp. is a payment technology company, with its
principal place of business in Stuart, Florida. [BN]
The Plaintiff is represented by:
Adriana Contartese, Esq.
LAW OFFICE OF ADRIANA CONTARTESE
1348 Washington Ave., Ste. 256
Miami Beach, FL 33139
Telephone: (617) 268-3557
E-mail: Adriana911@juno.com
PROGRESSIVE LEASING: Tidwell Sues Over Debt Collection Practices
----------------------------------------------------------------
CAMERON TIDWELL, individually and on behalf of all other similarly
situated, Plaintiff v. PROGRESSIVE LEASING, LLC d/b/a PROG LEASING,
LLC, Defendant, Case No. 157583655 (Fla., Cir., Hillsborough Cty.,
Sept. 16, 2022) seeks to stop the Defendant's unfair and
unconscionable means to collect a debt.
PROGRESSIVE LEASING, LLC offers lease-purchase program that is an
alternative to traditional financing. [BN]
The Plaintiff is represented by:
Jennifer G. Simil, Esq.
Jibrael S. Hindi, Esq.
THE LAW OFFICES OF JIBRAEL S. HINDI
110 SE 6th Street, Suite 1744
Fort Lauderdale, FL 33301
Telephone: (954) 907-1136
Email: jen@jibraellaw.com
jibrael@jibraellaw.com
PROGRESSIVE UNIVERSAL: Sued Over Improper Payment of Insurance
--------------------------------------------------------------
KAREN STROMQUIST, individually and on behalf of all others
similarly situated, Plaintiff vs. PROGRESSIVE UNIVERSAL INSURANCE
COMPANY, Defendant, Case No. 8:22-cv-00332-MDN (D. Neb., Sept. 16,
2022) is a class action on behalf of Plaintiff and all other
similarly situated claimants in Nebraska who received a payment for
the loss of a totaled vehicle from Defendant, where Defendant used
valuation reports prepared by Mitchell International, Inc. to
determine the actual cash value of the loss vehicles.
The Plaintiff alleges in the complaint that through Mitchell's
valuation, Defendant systemically thumbs the scale when calculating
the ACV of claimants' loss vehicles by applying so-called
"Projected Sold Adjustments" that are: (a) arbitrary; (b) contrary
to appraisal standards and methodologies; (c) not based in fact, as
they are contrary to the used car industry's market pricing and
inventory management practices; (d) not applied by the major
competitor of Defendant's vendor Mitchell; and (e) not applied by
the Defendant and Mitchell to insureds in other states like
California and Washington.
PROGRESSIVE UNIVERSAL INSURANCE COMPANY operates as an insurance
firm. The Company provides property and casualty insurance
services. [BN]
The Plaintiff is represented by:
Andrew J. Shamis, Esq.
Mariam Grigorian, Esq.
SHAMIS & GENTILE, P.A.
14 NE 1st Avenue, Suite 705
Miami, FL 33132
Telephone: (305) 479-2299
Email: ashamis@shamisgentile.com
mgrigorian@shamisgentile.com
- and -
Scott Edelsberg, Esq.
Christopher Gold, Esq.
EDELSBERG LAW, P.A.
20900 NE 30th Ave., Suite 417
Aventura, FL 33180
Telephone: (786) 289-9471
Facsimile: (786) 623-0915
Email: scott@edelsberglaw.com
chris@edelsberglaw.com
PROSPECT FINANCIAL: Filing of Class Status Bid Due Dec. 4
---------------------------------------------------------
In the class action lawsuit captioned as Garcia-Cortez v. Prospect
Financial Group Inc., Case No. 1:22-cv-20417 (S.D. Fla,), the Hon.
Judge Darrin P. Gayles entered an order on motion for extension of
time:
-- The Plaintiff shall move for class certification on or
before December 4, 2022 and for final default judgment on
or before January 12, 2023.
-- Terminate Motions Motions for class certification shall be
filed on or before December 4, 2022, as instructed in the
Court's prior Order.
-- All remaining deadlines in the Scheduling Order, shall be
continued until further Order of the Court.
-- This case is set for a Telephonic Status Conference on
December 7, 2022 at 10:00 A.M. Counsel shall enter their
appearances telephonically using the following dial-in
information.
The nature of suit states restrictions of use of telephone
equipment.
Prospect Financial is a San Diego-based mortgage lender.[CC]
PUBLIX SUPER: Lozenges Packaging Misleading, Valiente Class Alleges
-------------------------------------------------------------------
Heriberto Valiente, individually and on behalf of all others
similarly situated v. Publix Super Markets, Inc., Case No.
1:22-cv-22930-RNS (S.D. Fla., Sept. 14, 2022) alleges that Publix's
cough suppressant and oral anesthetic lozenges packaging and
labeling are misleading because they give consumers the impression
the Product contains a greater amount of lemon ingredients than it
does.
The complaint asserts that the Product's representations include
the statement "lemon," and pictures of a yellow-colored lozenge and
a halved lemon. These representations are false, deceptive, and
misleading, because the Product lacks the amount and type of lemon
ingredients expected by Plaintiff and consumers, says the suit.
The Plaintiff seeks certification under Fed. R. Civ. P. 23 of the
following classes:
-- Florida Class
"All persons in the State of Florida who purchased the
Product
during the statutes of limitations for each cause of action
alleged;" and
-- Consumer Fraud Multi-State Class
"All persons in the States of Alabama, Georgia, North
Carolina, Carolina, Tennessee, and Virginia, who purchased the
Product during the statutes of limitations for each cause of
action alleged."
Publix Super manufactures, labels, markets, and sells cough
suppressant and oral anesthetic lozenges purporting to contain an
appreciable amount of lemon ingredients under the Publix
brand.[BN]
The Plaintiff is represented by:
Will Wright, Esq.
THE WRIGHT LAW OFFICE, P.A.
515 N Flagler Dr Ste P-300
West Palm Beach FL 33401
Telephone: (561) 514-0904
E-mail: willwright@wrightlawoffice.com
- and -
Spencer Sheehan, Esq.
SHEEHAN & ASSOCIATES, P.C.
60 Cuttermill Rd Ste 412
Great Neck NY 11021
Telephone: (516) 268-7080
E-mail: spencer@spencersheehan.com
PZENA INVESTMENT: Monteverde & Associates Probes Securities Suit
----------------------------------------------------------------
Juan Monteverde, founder and managing partner of the class action
firm Monteverde & Associates PC (the "M&A Class Action Firm"), a
national securities firm rated Top 50 in the 2018-2021 ISS
Securities Class Action Services Report and headquartered at the
Empire State Building in New York City, is investigating:
Pzena Investment Management, Inc. (NYSE:PZN), relating to its
proposed merger with Pzena Investment Management, LLC. Under the
terms of the merger, PZN shareholders are expected to receive $9.60
in cash per share they own. Click here for more information:
https://www.monteverdelaw.com/case/pzena-investment-management-inc.
It is free and there is no cost or obligation to you.
About Monteverde & Associates PC
We are a national class action securities litigation law firm that
has recovered millions of dollars and is committed to protecting
shareholders from corporate wrongdoing. We were listed in the Top
50 in the 2018-2021 ISS Securities Class Action Services Report.
Our lawyers have significant experience litigating Mergers &
Acquisitions and Securities Class Actions. Mr. Monteverde is
recognized by Super Lawyers as a Rising Star in Securities
Litigation in 2013, 2017-2019, an award given to less than 2.5% of
attorneys in a particular field. He has also been selected by
Martindale-Hubbell as a 2017-2021 Top Rated Lawyer. Our firm's
recent successes include changing the law in a significant victory
that lowered the standard of liability under Section 14(e) of the
Exchange Act in the Ninth Circuit. Thereafter, our firm
successfully preserved this victory by obtaining dismissal of a
writ of certiorari as improvidently granted at the United States
Supreme Court. Emulex Corp. v. Varjabedian, 139 S. Ct. 1407 (2019).
Also, in 2019 we recovered or secured six cash common funds for
shareholders in mergers & acquisitions class action cases.
If you own common stock in any of the above listed companies and
wish to obtain additional information and protect your investments
free of charge, please visit our website or contact Juan E.
Monteverde, Esq. either via e-mail at jmonteverde@monteverdelaw.com
or by telephone at (212) 971-1341. [GN]
QUDIAN INC: Court Dismisses Amended Greco Suit With Leave to Amend
------------------------------------------------------------------
In the case, PABLO GRECO, GALESSI HOLDING CORP., and JUAN PABLO DI
BENEDETTO, individually and on behalf of all others similarly
situated, Lead Plaintiffs v. QUDIAN INC., MIN LUO, and CARL YEUNG,
Defendants, Case No. 1:20-cv-577-GHW (S.D.N.Y.), Judge Gregory H.
Woods of the U.S. District Court for the Southern District of New
York grants the Defendants' motion to dismiss the amended
complaint.
Qudian is a leading provider of micro-loans to consumers in China.
In June 2019, it raised its guidance for its total non-GAAP net
income for the year from 3.5 billion renminbi to 4.5 billion
renminbi. Qudian attributed the increase to its strong early
results and confidence in its ability to grow through the second
half of the year. Not long after it raised its guidance, the
company's performance plummeted. By the time the smoke settled,
Qudian missed not only its increased guidance, but its initial
guidance as well -- Qudian's non-GAAP net income for 2019 was 3.4
billion renminbi.
The Lead Plaintiffs in the action, Juan Pablo di Benedetto, Galessi
Holding Corp., and Pablo Greco, brought the securities class action
on behalf of themselves and other similarly situated investors who
purchased or otherwise acquired Qudian securities between Dec. 13,
2018 and Jan. 15, 2020. They allege that the Defendants made a
number of false and misleading statements and omissions, including
by misrepresenting that Qudian's business was compliant with
China's regulations, and by misrepresenting that Qudian was
experiencing significant growth while remaining conservative in its
lending practices. They allege that Defendants violated Section
10(b) of the Securities Exchange Act of 1934 and Rule 10b-5, and
that Min Luo and Carl Yeung violated Section 20(a) of the Exchange
Act.
Stephen Bellingham, an investor who purchased Qudian's ADS during
the Class Period, initiated the action on Jan. 22, 2020 against
Qudian, Luo, and Yeung. On April 7, 2020, the parties stipulated to
appoint the Lead Plaintiffs as lead plaintiffs. The Lead Plaintiffs
filed an amended complaint on June 17, 2020.
The amended complaint asserts two claims for relief. First, the
amended complaint alleges violations of section 10(b) of the
Securities Exchange Act of 1934, 15 U.S.C. Section 78j(b), and rule
10b-5 promulgated thereunder, 17 C.F.R. Section 240.10b-5. Second,
it alleges control person liability against Luo and Yeung under
section 20(a) of the Exchange Act, 15 U.S.C. Section 78t for the
same violations alleged in the first cause of action.
On Sept. 4, 2020, the Defendants moved to dismiss the amended
complaint, on the basis that the Lead Plaintiffs had failed to
state a claim. The Lead Plaintiffs opposed the Defendants' motion
on Oct. 2, 2020. The Defendants replied on Oct. 16, 2020. On March
10, 2022, the Lead Plaintiffs submitted a notice of supplemental
authority, notifying the Court of the Feb. 16, 2022 opinion in the
case France v. Jiayin Grp. Inc., 161 N.Y.S.3d 755 (N.Y. Sup. Ct.
2022). The Defendants responded on March 17, 2022.
Judge Woods explains that under Section 10(b) and Rule 10b-5, it is
unlawful to "make any untrue statement of a material fact or to
omit to state a material fact necessary in order to make the
statements made, in the light of the circumstances under which they
were made, not misleading." To survive a defendant's motion to
dismiss a Section 10(b) claim, a plaintiff must plausibly plead
"(1) a material misrepresentation (or omission); (2) scienter,
i.e., a wrongful state of mind; (3) a connection with the purchase
or sale of a security; (4) reliance; (5) economic loss; and (6)
loss causation." The Defendants challenge the first and second
elements.
The Lead Plaintiffs allege that the Defendants made a myriad of
statements during the Class Period that were false and misleading
because Defendants misrepresented and failed to disclose the
following information: (1) that the core loan book violated
Circular 141; (2) that the Chinese government narrowed the
geographic scope of Qudian's lending license in May 2019; (3) that
Qudian lowered its lending standards in the core loan book to such
a degree that at least 20% of the loans in its core loan book were
made to borrowers that did not meet Qudian's lending standards; (4)
that Open Platform took the best, highest-quality borrowers from
Qudian's user base; and (5) that Open Platform was developed to
address regulatory problems in the core loan book.
The amended complaint frames the allegations around these five
buckets. For each individual statement, the amended complaint
alleges that the statement was false or misleading "for the reasons
set forth" with respect to the bucket. Similarly, rather than
focusing on whether any specific statement was false or misleading,
the parties' briefing focuses on whether the information in each
bucket was properly disclosed or whether the information was
material.
Judge Woods holds that the Lead Plaintiffs have not plausibly
alleged that the Defendants' statements violated federal securities
laws. First, he opines that most of the Defendants'
misrepresentation or failure to disclose that "the core loan book
violated Circular 141's prohibition on Qudian conducting credit
assessments on behalf of other financial institutions," are
actionable. Second, he opines that the Lead Plaintiffs are
improperly attempting to plead fraud by hindsight and have not
established that any of these statements contain misrepresentations
of existing fact regarding Qudian's lending license. Nor could they
-- none of these statements, either directly or indirectly,
Qudian's lending licenses. Third, given that Qudian had disclosed
that it periodically lowered its lending standards, the Lead
Plaintiffs have failed to sufficiently allege that the Defendants'
omission of the size of the Credit Trial Program was necessary to
prevent the challenged statements from being misleading.
Fourth, Judge Woods opines that the Lead Plaintiffs have failed to
sufficiently allege that the Defendants' omission -- namely, that
Open Platform targeted the "best" and "highest-quality" borrowers
from the core loan book and not just "users with better credit
profiles" -- was necessary to prevent the challenged statements
from being misleading. Finally, to the extent that the Lead
Plaintiffs assert that the Defendants' November 2019 statements
regarding Open Platform support their allegation, they are
mistaken. None of the statements address the Defendants' original
motivation for developing Open Platform; instead, the statements
only describe the Defendants' view of Open Platform at the time the
statements were made. Accordingly, because the Lead Plaintiffs have
not pleaded with particularity facts on which their belief that
Open Platform was intended to address regulatory problems in the
core loan book is based, this allegation cannot serve as a basis
for securities fraud liability.
Turning to scienter, Judge Woods states that Rule 9(b) requires
that in a case involving multiple defendants, plaintiffs must plead
circumstances providing a factual basis for scienter for each
defendant; guilt by association is impermissible. He has determined
that only certain statements made by the Defendants are actionable.
The Lead Plaintiffs have not adequately alleged that the Defendants
had the requisite scienter when making those statements.
Judge Woods opines that the Lead Plaintiffs (i) have not adequately
pleaded facts showing that Defendants had an improper motive to
commit fraud; (ii) have not alleged that Luo or Yeung sold
securities, or otherwise directly profited in any way from the
alleged misstatements and omissions; (iii) have not sufficiently
alleged that Luo or Yeung knew or had access to information
suggesting that their statements were not accurate; (iv) do not
identify any information that was available to Luo and Yeung which
suggested that banks were not conducting independent credit
assessments and instead were relying on Qudian's credit
assessments; and (v) have not sufficiently alleged scienter for Luo
and Yueng, so there is no basis to impute corporate scienter to
Qudian. Accordingly, the Lead Plaintiffs have not adequately
alleged scienter.
The amended complaint asserts that Defendants violated Item 303 of
Regulation S-K, 17 C.F.R. Section 228.303(a)(3)(ii).
Judge Woods holds that the Lead Plaintiffs have not adequately
alleged that these disclosures were insufficient. Further, the
amended complaint does not adequately plead scienter with respect
to the Lead Plaintiffs' allegations regarding Circular 141. The
failure to plead scienter mandates dismissal of the Plaintiff's
claim under Item 303. The Lead Plaintiffs' theory that the core
loan book would suffer because of Open Platform is premised on
hindsight. Accordingly, their claims under Item 5 of Form 20-F are
dismissed.
Because the Lead Plaintiffs failed to adequately plead a violation
of Section 10(b) or Rule 10b-5, their Section 20(a) claims also
fail.
The Lead Plaintiffs are granted leave to amend their complaint.
Although they have already amended their complaint, they have not
yet had an opportunity to do so in response to an opinion of the
Court. Accordingly, the Court does not conclude that allowing them
to amend once again would be futile.
In light of the foregoing, Judge Woods grants the Defendants'
motion to dismiss the amended complaint. He grants the Lead
Plaintiffs leave to amend their complaint. The Lead Plaintiffs are
directed to file any amended complaint within 30 days of the date
of the Order.
The Clerk of Court is directed to terminate the motion pending at
Dkt. No. 54.
A full-text copy of the Court's Sept. 13, 2022 Memorandum Opinion &
Order is available at https://tinyurl.com/2k94hy36 from
Leagle.com.
RENOVACOR INC: M&A Investigates Possible Securities Class Action
----------------------------------------------------------------
Juan Monteverde, founder and managing partner of the class action
firm Monteverde & Associates PC (the "M&A Class Action Firm"), a
national securities firm rated Top 50 in the 2018-2021 ISS
Securities Class Action Services Report and headquartered at the
Empire State Building in New York City, is investigating Renovacor,
Inc. (RCKT), relating to its proposed acquisition by Rocket
Pharmaceuticals, Inc. Under the terms of the agreement, RCKT
shareholders will receive 0.1676 shares of Rocket per share they
own. Click here for more information:
http://monteverdelaw.com/case/renovacor-inc.It is free and there
is no cost or obligation to you.
About Monteverde & Associates PC
We are a national class action securities litigation law firm that
has recovered millions of dollars and is committed to protecting
shareholders from corporate wrongdoing. We were listed in the Top
50 in the 2018-2021 ISS Securities Class Action Services Report.
Our lawyers have significant experience litigating Mergers &
Acquisitions and Securities Class Actions. Mr. Monteverde is
recognized by Super Lawyers as a Rising Star in Securities
Litigation in 2013, 2017-2019, an award given to less than 2.5% of
attorneys in a particular field. He has also been selected by
Martindale-Hubbell as a 2017-2021 Top Rated Lawyer. Our firm's
recent successes include changing the law in a significant victory
that lowered the standard of liability under Section 14(e) of the
Exchange Act in the Ninth Circuit. Thereafter, our firm
successfully preserved this victory by obtaining dismissal of a
writ of certiorari as improvidently granted at the United States
Supreme Court. Emulex Corp. v. Varjabedian, 139 S. Ct. 1407 (2019).
Also, in 2019 we recovered or secured six cash common funds for
shareholders in mergers & acquisitions class action cases.
If you own common stock in RCKT and wish to obtain additional
information and protect your investments free of charge, please
visit our website or contact Juan E. Monteverde, Esq. either via
e-mail at jmonteverde@monteverdelaw.com or by telephone at (212)
971-1341. [GN]
ROCKY BRANDS: Website Not Accessible to Blind Consumers, Ortiz Says
-------------------------------------------------------------------
JOSEPH ORTIZ, ON BEHALF OF HIMSELF AND ALL OTHER PERSONS SIMILARLY
SITUATED, v. ROCKY BRANDS, INC., Case No. 1:22-cv-00699 (W.D.N.Y.,
Sept. 9, 2022) alleges that Defendant failed to design, construct,
maintain, and operate its website to be fully accessible to and
independently usable by Plaintiff and other blind or
visually-impaired people in violation of the Americans with
Disabilities Act (ADA).
Because Defendant's website, https://www.muckbootcompany.com/, is
not equally accessible to blind and visually-impaired consumers, it
violates the ADA. The Plaintiff seeks a permanent injunction to
cause a change in Defendant's corporate policies, practices, and
procedures so that Defendant's website will become and remain
accessible to blind and visually-impaired consumers.
By failing to make its Website available in a manner compatible
with computer screen reader programs, Defendant deprives blind and
visually-impaired individuals the benefits of its online goods,
content, and services -- all benefits it affords nondisabled
individuals -- thereby increasing the sense of isolation and stigma
among those persons that Title III was meant to redress.
Based on a 2010 U.S. Census Bureau report, approximately 8.1
million people in the United States are visually-impaired,
including 2.0 million who are blind, and according to the American
Foundation for the Blind's 2015 report, approximately 400,000
visually-impaired persons live in the State of New York.
The Plaintiff is a visually-impaired and legally blind person who
requires screen-reading software to read website content using his
computer. The Plaintiff uses the terms "blind" or
"visually-impaired" to refer to all people with visual impairments
who meet the legal definition of blindness in that they have a
visual acuity with correction of less than or equal to 20 x 200.
Some blind people who meet their definition have limited vision.
Others have no vision.
Rocky Brands operates the Muck online retail store across the
United States. This online retail store constitutes a place of
public accommodation. The Defendant's Website provides consumers
with access to an array of goods including information about
purchasing men's, women's, and children's boots and other products
available online for purchase, and to ascertain information
relating to pricing, shipping, ordering merchandise and return and
privacy policies.[BN]
The Plaintiff is represented by:
Michael A. LaBollita, Esq.
Jeffrey M. Gottlieb, Esq.
Dana L. Gottlieb, Esq.
GOTTLIEB & ASSOCIATES
150 East 18th Street, Suite PHR
New York, NY 10003
Telephone: (212) 228-9795
Facsimile: (212) 982-6284
E-mail: Michael@Gottlieb.legal
Jeffrey@gottlieb.legal
Dana@Gottlieb.legal
SABROSAS EMPANADAS: Rodriguez Seeks Minimum & OT Wages Under FLSA
-----------------------------------------------------------------
CARMEN RODRIGUEZ, individually and on behalf of others similarly
situated v. SABROSAS EMPANADAS CORP. (D/B/A EMPANADA MONUMENTAL)
and YOKASTA PEREZ, Case No. 1:22-cv-07876 (S.D.N.Y., Sept. 14,
2022) seeks to recover unpaid minimum and overtime wages pursuant
to the Fair Labor Standards Act of 1938 and the New York Labor
Law.
The complaint alleges that the Defendants maintained a policy and
practice of requiring Plaintiff Rodriguez and other employees to
work in excess of 40 hours per week without providing the minimum
wage and overtime compensation required by federal and state law
and regulations. Rather, Defendants failed to maintain accurate
recordkeeping of the hours worked and failed to pay the Plaintiff
appropriately for any hours worked, either at the straight rate of
pay or for any additional overtime premium, says the suit.
Plaintiff Rodriguez was employed as a cashier and a cook at the
restaurant located at a Defendant's restaurant. She worked for
Defendants in excess of 40 hours per week, without appropriate
minimum wage and overtime compensation for the hours that she
worked, the suit alleges.
The Defendants own, operate, or control a Dominican Restaurant,
located at 1457 Westchester Ave the Bronx, New York.[BN]
The Plaintiff is represented by:
CSM L EGAL , P.C.
60 East 42nd Street, Suite 4510
New York, NY 10165
Telephone: (212) 317-1200
Facsimile: (212) 317-1620
SCHUTZ CONTAINER: Balderas Wins Class Certification Bid
-------------------------------------------------------
In the class action lawsuit captioned as Eli Balderas, On behalf of
himself and those similarly situated, v. Schutz Container Systems,
Inc., Case No. 3:21-cv-02427-JZ (N.D. Ohio), the Hon. Judge Jack
Zouhary entered an order granting conditional and class
certification and approving notice and consent forms.
Schutz Container manufactures carbon fiber, drums, and containers.
The Company produces bulk containers for transport and storage of
fluids.
A copy of the Court's order dated Sept. 1, 2022 is available from
PacerMonitor.com at https://bit.ly/3eLzCtZ at no extra charge.[CC]
SIGNATURE FLIGHT: Herrera's Bid to Remand & for Attys.' Fees Denied
-------------------------------------------------------------------
In the case, DENNIS HERRERA, as an individual and on behalf of all
others similarly situated, Plaintiff v. SIGNATURE FLIGHT SUPPORT
LLC, a Delaware limited company; and DOES 1 to 100, inclusive,
Defendants, Case No. 2:22-cv-03082-SSS (AGRx) (C.D. Cal.), Judge
Sunshine S. Sykes of the U.S. District Court for the Central
District of California denies the Plaintiff's Motion to Remand
Action to State Court and Request for Attorneys' Fees.
The Plaintiff works for Signature as a non-exempt, hourly-paid
employee. Signature provides aircraft fueling and non-fuel aviation
services, including technical support, aircraft maintenance and
repair service, flight support, charter services, and aircraft
management for business and private aviation.
On March 16, 2022, the Plaintiff filed a class action complaint
against the Defendant in the Superior Court of California, County
of Los Angeles alleging seven causes of action: 1) recovery of
unpaid minimum wages and liquidated damages, 2) recovery of unpaid
overtime wages, 3) failure to provide meal periods or compensation
in lieu thereof, 4) failure to provide rest periods or compensation
in lieu thereof, 5) failure to furnish accurate itemized wage
statements, 6) failure to reimburse business expenses, and 7)
unfair competition. On May 2, 2022, the Defendant filed its
Answer.
On May 6, 2022, the Defendant filed a Notice of Removal alleging
jurisdiction under 28 U.S.C. Section 1332(d), the Class Action
Fairness Act of 2005 ("CAFA"). On July 8, 2022, the Plaintiff filed
the instant motion to remand the case back to state court.
The Plaintiff argues the Defendant failed to establish the amount
in controversy for the Plaintiff's meal and rest period claims
because it has not provided sufficient evidence to show that its
assumptions are reasonable. In the Defendant's Notice of Removal,
it calculated the amount in controversy for the meal and rest
period claims by multiplying the number of aggregate workweeks
worked by class members during the class period (62,192), the
average hourly rate ($20.29), and the number of violations per
workweek.
The Plaintiff only disputes the number of Class Members and number
of violations per workweek ("violation rate") the Defendant used in
its calculations. He does not dispute that an employee who works
eight hours in one day is entitled to at least one meal break and
one rest period that day. He also does not dispute the mathematical
formula, number of workweeks, or average hourly rate the Defendant
used.
Initially, the Plaintiff argues "while he may have worked eight
hour shifts each workweek which entitled him to one meal period and
at least one rest period, that does not mean that each proposed
Class Member also worked eight-hour shifts." But the Defendant's
assumptions "need not be proven; they instead must only have 'some
reasonable ground underlying them.'" "An assumption is reasonable
when it is supported by the allegations of the Plaintiff's
complaint."
Judge Sykes holds that the Defendant's assumption that each
proposed Class Member also worked eight-hour shifts is reasonable
and supported by the allegations in the complaint. Throughout the
complaint, the Plaintiff does not qualify his allegations to be on
behalf of anything less than all the Class Members.
Moreover, the Plaintiff fails to identify any allegations or
evidence that suggest Defendant's assumption that each Class Member
worked eight-hour shifts is unreasonable, and he does not even
suggest what proportion of Class Members did work eight-hour shifts
and what number should be used instead. Thus, it was reasonable for
the Defendant to assume each Class Member worked at least an
eight-hour shift.
The Plaintiff also disputes the number of violations per workweek
Defendant used in its calculations. In the complaint, he alleges
"his meal periods were interrupted, worked through, and/or late at
least three out of every five shifts he worked," a 60% violation
rate. In its Notice of Removal, the Defendant used a conservative
20% violation rate for the meal and rest period claims, meaning it
assumed only one missed meal per week, and one missed rest break
per week. In its opposition brief, it also provided calculations
for two, three, and five meal period and rest period violations per
week. According to the Plaintiff, his "allegation that he missed
three of five meal periods per workweek does not mean that every
single one of the proposed Class Members similarly did not receive
meal periods for majority of their shifts."
Based on the Plaintiff's own allegations of a 60% violation rate,
Judge Sykes holds that it is reasonable for the Defendant to assume
that other Class Members also experienced at least a 60% violation
rate (three violations per week). Based on a 60% violation rate, he
finds by the preponderance of the evidence that the requisite
amount in controversy for purposes of CAFA jurisdiction is met. For
the Plaintiff's Third Cause of Action (Meal Periods), with a 60%
violation rate, the amount in controversy is $3,785,627.04.
Similarly, for his Fourth Cause of Action, with a 60% violation
rate, the amount in controversy is the same, $3,785,627.04. Thus,
the total amount in controversy based on the meal and rest period
claims is $7,571,254.08, well over the $5 million requirement.
For these reasons, Judge Sykes concludes that the Defendant's
calculations for the amount in controversy for the Plaintiff's
Third and Fourth Causes of Action (meal and rest period claims) are
reasonable and satisfy the CAFA jurisdictional threshold of $5
million. Thus, he need not reach the Plaintiff's arguments
regarding the calculations for the other causes of action.
Therefore, Judge Sykes denies the Plaintiff's Motion for Remand.
Accordingly, because the Defendant's removal was not improper, he
also denies the Plaintiff's request for attorneys' fees.
A full-text copy of the Court's Sept. 13, 2022 Order is available
at https://tinyurl.com/5c27e5h7 from Leagle.com.
STRATFORD UNIVERSITY: Fails to Secure Students' Info, Suit Claims
-----------------------------------------------------------------
Ana Rodriguez, individually and on behalf of all others similarly
situated v. Stratford University, Inc., Case No. 1:22-cv-01048
(E.D. Va., Sept. 14, 2022) is a class action for damages with
respect to Stratford University for its failure to exercise
reasonable care in securing and safeguarding its students'
sensitive personal data, collectively known as Personally
Identifiable Information.
The class action is brought on behalf of students at Stratford
University whose sensitive PII was stolen by cybercriminals in a
cyber-attack that accessed student information through on Stratford
University’s systems on or around April 6, 2022 (the Data
Breach).
Stratford University reported to Plaintiff that information
compromised in the Data Breach included her PII. As a result of the
Data Breach, the Plaintiff and other Class members have experienced
or will experience various types of misuse of their PII in the
coming years, including but not limited to unauthorized credit card
charges, unauthorized access to email accounts, and other
fraudulent use of their financial accounts, says the suit.[BN]
The Plaintiff is represented by:
Matthew T. Sutter, Esq.
SUTTER & TERPAK, PLLC
7540 Little River Tnpk.
Suite A, First Floor
Annandale, VA 22003
Telephone: (703) 256-1800
Facsimile: (703) 991-6116
E-mail: matt@sutterandterpak.com
- and -
Nicholas A. Migliaccio, Esq.
Jason S. Rathod, Esq.
MIGLIACCIO & RATHOD LLP
412 H Street N.E., Suite 302
Washington, D.C. 20002
Telephone: (202) 470-3520
Facsimile: (202) 800-2730
SUBARU OF AMERICA: Amended Scheduling Order Entered in Weston
-------------------------------------------------------------
In the class action lawsuit captioned as Danny Weston, et al.,
individually and on behalf of all others similarly situated, v.
Subaru of America, Inc. and Subaru Corporation f/k/a Fuji Heavy
Industries, LTD., Case No. 1:20-cv-05876-CPO-SAK (D.N.J.), the Hon.
Judge Sharon A. King entered an amended scheduling order as
follows:
-- Pretrial factual discovery is April 21, 2023
extended to:
-- Plaintiffs' class certification May 22, 2023
expert reports and disclosures
pursuant to FED. R. CIV. P.
26(a)(2) shall be served upon
counsel for Defendants no later
than:
-- The Defendants' class July 17, 2023
certification expert reports and
disclosures pursuant to FED.
R.CIV. P. 26(a)(2) shall be
served upon counsel for
the Plaintiffs no later than:
Subaru of America is the United States-based distributor of
Subaru's brand vehicles, a subsidiary of Subaru Corporation of
Japan.
A copy of the Court's order dated Sept. 1, 2022 is available from
PacerMonitor.com at https://bit.ly/3Bfm5Cg at no extra charge.[CC]
The Plaintiff is represented by:
Russell D. Paul, Esq.
Amey J. Park, Esq.
Abigail J. Gertner, Esq.
BERGER MONTAGUE PC
1818 Market Street, Suite 3600
Philadelphia, PA 19103
Telephone: (215) 875-3000
Facsimile: (215) 875-4604
E-mail: rpaul@bm.net
apark@bm.net
agertner@bm.net
- and -
Neal Walters, Esq.
BALLARD SPAHR LLP
700 East Gate Drive, Suite 330
Mt. Laurel, NJ 08054-0015
E-mail: waltersn@ballardspahr.com
TA OPERATING: Daniels Wage-and-Hour Suit Goes to C.D. California
----------------------------------------------------------------
The case styled PHILLIP DANIELS and MARKUS BEGAY, individually and
on behalf of all others similarly situated v. TA OPERATING LLC and
DOES 1 through 100, inclusive, Case No. CIVSB2215247, was removed
from the Superior Court of the State of California for the County
of San Bernardino to the U.S. District Court for the Central
District of California on September 14, 2022.
The Clerk of Court for the Central District of California assigned
Case No. 5:22-cv-01634-JGB-SHK to the proceeding.
The case arises from the Defendant's alleged violations of the
California Labor Code and the California's Unfair Competition Law
including failure to pay overtime wages, failure to pay minimum
wages, failure to provide meal periods, failure to provide rest
periods, waiting time penalties, wage statement violations, failure
to timely pay wages, failure to indemnify, and unfair competition.
TA Operating LLC is an owner and operator of gasoline service
stations, headquartered in Ohio. [BN]
The Defendant is represented by:
Mia Farber, Esq.
Eric J. Gitig, Esq.
JACKSON LEWIS P.C.
725 South Figueroa Street, Suite 2500
Los Angeles, CA 90017-5408
Telephone: (213) 689-0404
Facsimile: (213) 689-0430
E-mail: Mia.Farber@jacksonlewis.com
Eric.Gitig@jacksonlewis.com
TAKEDA PHARMACEUTICALS: Value Drug Seeks to Certify Class
---------------------------------------------------------
In the class action lawsuit captioned as VALUE DRUG COMPANY, on
behalf of itself and all others similarly situated, v. TAKEDA
PHARMACEUTICALS U.S.A., INC., PAR PHARMACEUTICAL INC., WATSON
LABORATORIES, INC., TEVA PHARMACEUTICAL INDUSTRIES LTD., TEVA
PHARMACEUTICALS USA, INC., and AMNEAL PHARMACEUTICALS LLC, Case No.
2:21-cv-03500-MAK (E.D. Pa.), the Plaintiff asks the Court to enter
an order pursuant to the Federal Rules of Civil Procedure for an
order certifying the class pursuant to Fed. R. Civ. P. 23(b)(3):
"All persons or entities in the United States and its
territories and possessions, including the Commonwealth of
Puerto Rico, who directly purchased branded or generic
Colcrys tablets from Takeda, Prasco, or Par at any time from
July 29, 2016 until December 1, 2020."
Excluded from the Class are the Defendants, their officers,
directors, management, employees, subsidiaries, and
affiliates, and all federal governmental entities.
The Plaintiff also requests that the Court appoint Value Drug
Company as the representative of the Class. The Plaintiff also
moves for the Court pursuant to Fed. R. Civ. P. 23(c)(1)(B) and
23(g) to appoint Bruce E. Gerstein of Garwin Gerstein & Fisher, LLP
and Peter Kohn of Faruqi & Faruqi LLP as Lead Counsel for the
Class.
A copy of the Plaintiff's motion to certify class dated Sept. 6,
2022 is available from PacerMonitor.com at https://bit.ly/3UmT3cM
at no extra charge.[CC]
The Plaintiff is represented by:
Bruce E. Gerstein, Esq.
Dan Litvin, Esq.
Kimberly M. Hennings, Esq.
Deborah Elman, Esq.
GARWIN GERSTEIN & FISHER LLP
88 Pine Street, 10th Floor
New York, NY 10005
Telephone: (212) 398-0055
E-mail: bgerstein@garwingerstein.com
dlitvin@garwingerstein.com
khennings@garwingerstein.com
delman@garwingerstein.com
- and -
David F. Sorensen, Esq.
Caitlin G. Coslett, Esq.
BERGER MONTAGUE PC
1818 Market Street, Suite 3600
Philadelphia, PA 19103
Telephone: (215) 875-3000
E-mail: dsorensen@bm.net
ccoslett@bm.net
- and -
Susan Segura, Esq.
David C. Raphael, Esq.
Erin R. Leger, Esq.
SMITH SEGURA RAPHAEL
LEGER LLP
221 Ansley Blvd.
Alexandria, LA 71303
Telephone: (318) 445-4480
E-mail: ssegura@ssrllp.com
draphael@ssrllp.com
eleger@ssrllp.com
- and -
Peter Kohn, Esq.
Joseph Lukens, Esq.
FARUQI & FARUQI LLP
1617 JFK Blvd, Suite 1550
Philadelphia, PA 19103
Telephone: (215) 277-5770
E-mail: pkohn@faruqilaw.com
jlukens@faruqilaw.com
- and -
Bradley J. Demuth, Esq.
FARUQI & FARUQI LLP
685 Third Avenue
New York, NY 10017
Telephone: (212) 983-9330
E-mail: bdemuth@faruqilaw.com
- and -
Stuart E. Des Roches, Esq.
Andrew W. Kelly, Esq.
ODOM & DES ROCHES LLC
650 Poydras Street, Suite 2020
New Orleans, LA 70130
Telephone: (504) 522-0077
E-mail: stuart@odrlaw.com
akelly@odrlaw.com
- and -
Russell Chorush, Esq.
HEIM PAYNE & CHORUSH LLP
1111 Bagby Street, Suite 2100
Houston, TX 77002
Telephone: (713) 221-2000
E-mail: rchorush@hpcllp.com
TD AMERITRADE: Court Dismisses Bruns Suit With Leave to Amend
-------------------------------------------------------------
Judge M. James Lorenz of the U.S. District Court for the Southern
District of California dismisses the case, DEREK BRUNS, DAVID
KAUFFMAN and CHRISTOPHER JORGENS, individually and on behalf of
others similarly situated, Plaintiffs v. TD AMERITRADE, INC.,
Defendant, Case No. 22cv1369-L-JLB (S.D. Cal.), with leave to
amend.
In this action for violations of the California Invasion of Privacy
Act, the Plaintiffs allege federal jurisdiction based on diversity
of citizenship under the Class Action Fairness Act ("CAFA"), 28
U.S.C. Section 1332(d).
The complaint names Bruns, Kauffman, and Jorgens, as Plaintiffs
individually and on behalf of others similarly situated, and TD
Ameritrade as Defendant. For diversity purposes, natural persons
like the Plaintiffs are citizens of the state where they are
domiciled. The Plaintiffs allege that they are residents of the
State of California.
Additionally, "a corporation will be deemed to be a citizen of
every State and foreign state by which it has been incorporated and
of the State or foreign state where it has its principal place of
business." This corporate dual citizenship rule applies to CAFA
actions. The Plaintiffs allege that the Defendant is a corporation
with it principal place of business located outside of California.
Without more, this is insufficient to establish that the parties
meet all the requirements of diversity jurisdiction.
Because the Plaintiffs do not allege the facts necessary to
establish diversity jurisdiction, Judge Lorenz dismisses the
complaint for lack of subject matter jurisdiction. He grants the
Plaintiffs leave to file an amended complaint to supplement the
jurisdictional allegations. If they choose to file an amended
complaint, they must do so no later than Oct. 4, 2022.
A full-text copy of the Court's Sept. 13, 2022 Order is available
at https://tinyurl.com/476dbdu8 from Leagle.com.
TERMINIX GLOBAL: Monteverde & Associates Probes Securities Suit
---------------------------------------------------------------
Juan Monteverde, founder and managing partner of the class action
firm Monteverde & Associates PC (the "M&A Class Action Firm"), a
national securities firm rated Top 50 in the 2018-2021 ISS
Securities Class Action Services Report and headquartered at the
Empire State Building in New York City, is investigating:
Terminix Global Holdings, Inc. (NYSE:TMX), relating to its merger
with Rentokil Initial plc. Click here for more information:
https://www.monteverdelaw.com/case/terminix-global-holdings-inc. It
is free and there is no cost or obligation to you.
About Monteverde & Associates PC
We are a national class action securities litigation law firm that
has recovered millions of dollars and is committed to protecting
shareholders from corporate wrongdoing. We were listed in the Top
50 in the 2018-2021 ISS Securities Class Action Services Report.
Our lawyers have significant experience litigating Mergers &
Acquisitions and Securities Class Actions. Mr. Monteverde is
recognized by Super Lawyers as a Rising Star in Securities
Litigation in 2013, 2017-2019, an award given to less than 2.5% of
attorneys in a particular field. He has also been selected by
Martindale-Hubbell as a 2017-2021 Top Rated Lawyer. Our firm's
recent successes include changing the law in a significant victory
that lowered the standard of liability under Section 14(e) of the
Exchange Act in the Ninth Circuit. Thereafter, our firm
successfully preserved this victory by obtaining dismissal of a
writ of certiorari as improvidently granted at the United States
Supreme Court. Emulex Corp. v. Varjabedian, 139 S. Ct. 1407 (2019).
Also, in 2019 we recovered or secured six cash common funds for
shareholders in mergers & acquisitions class action cases.
If you own common stock in any of the above listed companies and
wish to obtain additional information and protect your investments
free of charge, please visit our website or contact Juan E.
Monteverde, Esq. either via e-mail at jmonteverde@monteverdelaw.com
or by telephone at (212) 971-1341. [GN]
THERANOS INC: Arizona Patients Seek Damages in False Blood Tests
----------------------------------------------------------------
Kristen Mosbrucker at phoenixnewtimes.com reports that the founder
of the once high-flying, now failed Silicon Valley blood-testing
startup Theranos, was convicted of fraud by a California jury this
week, but that might not be the end of legal troubles for Elizabeth
Holmes.
A class-action lawsuit filed on behalf of Arizona patients who said
they got misleading blood test results is winding its way through
the legal system. Attorneys are seeking at least $5 million in
damages for more than 100 potential claimants.
Holmes, the Stanford dropout who created Theranos in 2003 at 19,
faces 20 years in prison for misleading investors to pour money
into the company which promised blood tests based on merely a prick
of the finger with a proprietary machine.
"There are many things I wish I did differently," Holmes told the
jury in late November when asked whether she should have disclosed
that blood tests were run on commercially available machines.
A class-action lawsuit filed on behalf of Arizona patients who said
they got misleading blood test results is winding its way through
the legal system. Attorneys are seeking at least $5 million in
damages for more than 100 potential claimants.
Holmes, the Stanford dropout who created Theranos in 2003 at 19,
faces 20 years in prison for misleading investors to pour money
into the company which promised blood tests based on merely a prick
of the finger with a proprietary machine.
"There are many things I wish I did differently," Holmes told the
jury in late November when asked whether she should have disclosed
that blood tests were run on commercially available machines.
Holmes was found guilty by jurors on four counts of wire fraud and
conspiracy to commit fraud against investors in the U.S. District
Court for the Northern District of California.
"She chose fraud over business failure," said U.S. prosecutor Jeff
Schenk. "She chose to be dishonest with investors and patients."
However, she was acquitted on four counts of wire fraud in
connection to several patients' laboratory blood tests and no
verdict was reached on three other counts related to investor
fraud. Several Arizona patients testified during Holmes' criminal
trial that they had gotten false results about HIV and a potential
miscarriage during pregnancy.
Brittany Gould, a 31-year-old medical assistant in Mesa, took a
Theranos blood test while pregnant, which suggested she was a risk
for a miscarriage. But eventually, she gave birth to a healthy
baby. Theranos claimed that it was a data entry error.
But other patients who relied on test results from Theranos in
Arizona want justice for themselves and attorneys filed a civil
lawsuit filed in 2016 in U.S. District Court in Arizona.
"People were diagnosed falsely with serious conditions . . . people
took medication that they weren't supposed to take as a result,"
said attorney Roger Heller, who represents the patients, during a
March 2018 hearing. "This is not your run-of-the-mill consumer
case. The harms here went well beyond just money that these people
paid out of pocket."
Heller later said that the patients were "treated as human guinea
pigs" by Theranos.
In court filings, Theranos denies all the allegations, including
that its tests were inaccurate, claiming that in many cases the
company didn't use its own machines for tests or relied on a finger
prick of blood.
"Seven million tests were unchallenged," said Frederick Burnside,
attorney for Theranos' executive Ramesh Balwani.
But according to the lawsuit, one woman who purchased $59 worth of
Theranos blood tests from a Walgreens in Chandler was misdiagnosed
with Hashimoto's disease, an autoimmune condition. She didn't have
the disease and the false result was "devastating to her and
required lifestyle changes, medical appointments, and taking
necessary medication," according to the lawsuit.
While the woman, only identified in court documents by the initials
of L.M. to protect her medical privacy, had the blood tests ordered
by a doctor it wasn't required to access the Theranos tests.
That's because Theranos wooed the Arizona legislature to pass a new
law in 2015 which enabled patients to get blood tests and their
results without a doctor's oversight. Governor Doug Duecy swooned
over Theranos. He described the company's "innovative disruption of
the healthcare industry" roll out in Arizona as "awesome" in 2015
on social media.
Through its partnership with Walgreens, Theranos sold 1.5 million
blood tests among 175,000 Arizona residents between 2013 and 2016.
The tests were sold at 40 Walgreens stores during the partnership
which ended several years ago. About 10 percent of the tests were
either voided or corrected, according to Theranos.
Arizona Attorney General Mark Brnovich fought for a refund and the
company agreed to pay $4.65 million back to patients in 2017.
"Everyone who paid for a test will receive a full refund, period,"
said Brnovich in a statement at the time. "This is a great result
and a clear message that Arizona's consumer protection laws will be
vigorously enforced."
But the lawsuit claims that's not enough.
"In many cases, it took months (or even a year or more) to inform
customers and their doctors that the test results should not be
relied on," according to the lawsuit.
Patients in the lawsuit claim that blood tests from Theranos came
back positive for a variety of diseases they didn't have at all,
from Sjogren's syndrome to HIV and diabetes. One man whose blood
tests were false negatives for heart health indicators suffered a
heart attack within a month of getting his results, according to
the complaint.
Attorneys are still in the discovery phase of the lawsuit which is
expected to wrap up by September 30, 2022. [GN]
TISHMAN SPEYER: Rent-Stabilization Suit Gets Class-Action Status
----------------------------------------------------------------
Shelby Rosenberg at crainsnewyork.com reports that Manhattan-based
developer Tishman Speyer is facing a class-action lawsuit from
tenants who claim the company illegally inflated rents at its
1,871-unit, three-tower complex at 28-10 Jackson Ave. in Long
Island City, according to court documents filed in state Supreme
Court in Manhattan.
A judge granted the February lawsuit, initially filed on behalf of
one tenant, class certification regarding claims that Tishman
Speyer circumvented New York’s rent-stabilization laws by
systematically registering the initial registered rents of the
apartments at inflated and illegal amounts, then increasing the
rents afterward.
As a recipient of a 421-a tax abatement for the Jackson Avenue
complex in 2015, the landlord was required to treat all of those
units as rent-stabilized, said Newman Ferrara attorneys Lucas
Ferrara and Roger Sachar, who will represent all the tenants in the
class action. [GN]
TODD UECKER: Salcedo, et al., File Provisional Class Status Bid
---------------------------------------------------------------
In the class action lawsuit captioned as Brenda Salcedo et al., v.
Todd J. Uecker, et al., Case No. 0:22-cv-02045-DWF-ECW (D. Minn.),
the Plaintiffs ask the Court to enter an order granting their
motion for a provisional class certification, pursuant to Federal
Rules of Civil Procedure 23(a), 23(b)(1)(B), 23(b)(2), 23(b)(3).
A copy of the Court's order Plaintiffs' motion to certify class
dated Sept. 2, 2022 is available from PacerMonitor.com at
https://bit.ly/3S6FtrS at no extra charge.[CC]
The Plaintiffs are represented by:
Zachary M. Crosby, Esq.
FOR YOU LAW PLC
1528 Huron Street
St. Paul, MN 55108
Telephone: (612) 380-0827
Facsimile: (612) 412-4443
E-mail: zachary@foryoulaw.us
- and -
Lawrence H. Crosby, Esq.
Crosby & Associates, P.A.
2416 Como Avenue
St. Paul, MN 55108
Telephone: (651) 635-0818
E-mail: lhcrosby@uslink.net
TURNER ACCEPTANCE: Garcia Sues Over Abusive Collection Calls
------------------------------------------------------------
JOSE GARCIA, individually and on behalf of all others similarly
situated, Plaintiff v. TURNER ACCEPTANCE, CORP. and JOHN DOES 1-10,
Defendant, Case No. 1:22-cv-22767-XXXX (S.D. Fla., August 31, 2022)
is a class action complaint brought against the Defendant for its
alleged violations of the Telephone Consumer Protection Act.
According to the complaint, the Defendant began sending numerous
collection calls to the Plaintiff's cellular telephone number
ending in 1751 consequently when the Plaintiff became very ill in
May 2022 and fell behind on his payments of the loan which he took
with the Defendant to finance a vehicle in March 2022. Despite the
Plaintiff's request that the erroneous collection calls cease, the
Defendant continued placing collection calls to the Plaintiff's
cellular phone. The Plaintiff claims that the Defendant's erroneous
collection calls have invaded the Plaintiff's privacy and have
caused him actual harm, including aggravation, nuisance, annoyance,
mental anguish, and waste of time. Moreover, the Plaintiff was
forced to retain counsel to compel the Defendant to cease its
abusive collection practices, says the suit.
Thus, on behalf of himself and all other similarly situated
individuals, the Plaintiff seeks an order enjoining the Defendant
from placing further unlawful calls, as well as an award of $500.00
in damages, treble damages up to $1,500.00, and other relief as the
Court deems just and proper.
Turner Acceptance offers loans. [BN]
The Plaintiff is represented by:
Alexander J. Taylor, Esq.
SULAIMAN LAW GROUP, LTD.
2500 South Highland Avenue, Suite 200
Lombard, IL 60148
Tel: (630) 575-8180
E-mail: ataylor@sulaimanlaw.com
UMG RECORDINGS: Court Tosses Sulton's Copyright Infringement Claim
------------------------------------------------------------------
In the case, JOHN WAITE, an individual, et al., Plaintiffs v. UMG
RECORDINGS, INC., et al., Defendants, Case No. 19-cv-1091 (LAK)
(S.D.N.Y.), Judge Lewis A. Kaplan of the U.S. District Court for
the Southern District of New York grants the Defendants' motion for
summary judgment dismissing Plaintiff Kasim Sulton's copyright
infringement claim.
Aspiring singers, musicians, authors and other artists -- sometimes
young and inexperienced and often not well known -- tend to have
little bargaining power in negotiating financial arrangements with
recording companies, publishers, and others who promote and
commercialize the artists' work. They often grant copyright in that
work as part of the bargain they strike for promotion and
commercialization. Accordingly, when an artistic work turns out to
be a "hit," the lion's share of the economic returns often goes to
those who commercialized the works rather than to the artist who
created them.
Section 203 of the Copyright Act of 1976 established a limited
opportunity for artists to terminate the copyright ownership that
they had granted to commercializers decades earlier in order to
address this issue. The idea was that termination of these rights
would more fairly balance the allocation of the benefits derived
from the artists' creativity. Termination is effectuated by serving
the grantee with written notice.
The lawsuit is a purported class action by recording artists whose
albums were released by predecessors in interest of UMG and Capitol
Records, LLC pursuant to agreements the artists signed in the 1970s
and 1980s that granted copyright in their works to UMG's and
Capitol's predecessor recording companies. These grants allowed
those companies (and now UMG and Capitol) to market, distribute,
and sell the artists' sound recordings.
Each member of the class allegedly has terminated that grant as to
the sound recordings comprising certain albums. The Defendants
dispute the validity of those terminations. The matter, however,
now is before the Court on a far more limited issue. The Defendants
seek summary judgment dismissing the copyright infringement claim
of Sulton on the basis that the Defendants -- even assuming that
Sulton's putative notice of termination was effective on the date
claimed, and thus that he has held the copyright in question since
then -- have not violated Sulton's exclusive rights under the
Copyright Act and therefore have not infringed his copyright.
On Sept. 29, 1980, Sulton and EMI America Records, Inc. entered
into a recording agreement for Sulton's exclusive personal services
as a performer on phonograph records. Capitol subsequently
succeeded to EMI's rights and obligations under the Agreement,
including ownership of the copyright to Kasim, an album published
thereunder.
On Dec. 1, 2011, EMI Records Ltd. and Demon Music Group Limited
entered into an agreement pursuant to which Demon licensed the
album Kasim for a three-year term from Feb. 25, 2013 to Feb. 24,
2016. The License applied to compact disc, or "CD," releases only
(i.e., no streaming or other digital rights) and the territory of
the License was limited to the United Kingdom and Ireland. Pursuant
to the License, Demon released a compact disc re-issue of Kasim
through its label Edsel Records in the United Kingdom in 2013.
On July 20, 2016, Sulton, through his representative and counsel
Evan Cohen, transmitted a putative "Notice of Termination Under 17
U.S.C. Section 203 and 37 C.F.R. Section 201.10" to "Universal
Music Group." In the Notice, Sulton purported to terminate "all
grants or transfers of copyright and all rights of the copyright
proprietor" in the album Kasim, "including, without limitation the
grant dated in or about 1981 between the recording artist Kasim
Sulton and EMI America Records, a division of Capitol Records,
Inc." The Notice also listed an "Effective Date of Termination" of
July 21, 2018 for Kasim.
On June 5, 2019, Sulton joined this action as a plaintiff asserting
claims against the Defendants for copyright infringement. He seeks
to be appointed a class representative of a putative class of
artists seeking compensatory damages for alleged copyright
infringement against Capitol, defined as follows: "All recording
artists (and statutory heirs and personal representatives of those
recording artists, if applicable) who have served Defendants with
Notices of Termination pursuant to Section 203 of the Copyright Act
describing an effective date of termination for a particular work
(i) occurring on or after Jan. 1, 2013 and (ii) occurring no later
than the date the Court grants class certification of Class A."
Sulton contends that the Defendants allegedly continued to exploit
Kasim and generate revenue from such exploitation after July 21,
2018, the album's putative termination date. The Defendants,
however, have submitted a declaration asserting that they have "no
record of having exploited Kasim in the United States on or after
July 21, 2018, and likewise have no record of any revenue activity
associated with exploitation of Kasim in the United States after
July 21, 2018" and, on that basis, assert in their Rule 56.1
Statement that they have neither exploited Kasim in the United
States nor received any revenue associated with its exploration
after the putative July 21, 2018 termination date. Sulton has
adduced no evidence to the contrary. Indeed, Sulton's Rule 56.1
Statement does not dispute defendants' foregoing assertions.
As to the copyright infringement, Judge Kaplan opines that assuming
arguendo (as the Defendants do, solely for the purposes of this
motion) that Sulton's termination notice was effective as of July
21, 2018, the question whether the Defendants are entitled to
judgment as a matter of law dismissing Sulton's copyright
infringement claim resolves into whether there is a genuine issue
of material fact as to whether they have violated any of Sulton's
exclusive rights after that date.
The Plaintiff has the burden of proof of infringement. He has
adduced no evidence whatsoever that the Defendants have exploited
in the United States any of the exclusive rights conferred by
Section 106 after the purported termination date. Accordingly, by
conventional standards, Judge Kaplan holds that the Defendants are
entitled to dismissal of the infringement claim. The Plaintiff,
however, contends otherwise, offering three theories. None has any
merit.
Sulton characterizes the first of his theories of copyright
infringement as the Defendants' "wrongfully failing and refusing to
relinquish the rights to Sulton in and to the sound recordings he
created and as set forth in the Notice of Termination served on the
Defendants. In other words, he characterizes the Defendants'
contention that the termination notice was ineffective as
infringement.
Judge Kaplan opines that reading the Act in such a way, likely
would give rise to serious constitutional questions. And the
Plaintiff's attempt to stretch the limits of the Act by contending
that the Defendants' action in contesting the efficacy of Sulton's
notice of termination deprives him of the benefit of copyright
ownership and therefore is inconsistent with Section 106 and
constitutes infringement is unpersuasive. Indeed, it assumes the
very point at issue -- whether Sulton or Capitol owns the exclusive
rights.
Mr. Sulton characterizes his two remaining theories as in this way:
teh Defendants are: "(2) preventing him from exercising any or all
of the bundle of rights enumerated in Section 106" and "(3)
threatening Sulton with litigation if he attempted to exercise
those rights."
A moment's reflection, however, according to Judge Kaplan yields
the conclusion that these amount to the same argument already
rejected. This is a lawsuit about whether Sulton or Capitol owns
the exclusive rights of which Sulton writes. Sulton's argument
assumes that he owns those rights and, moreover, that anyone
claiming otherwise is a copyright infringer because those claims
may interfere with Sulton's ability to have the benefits of the
exclusive rights in question. While it theoretically might prove to
be the case that Capitol's advocacy of its position is so baseless,
so corrupt, and so otherwise devoid of legitimacy that its actions
might give rise to some commercial tort or, perhaps, even
infringement liability, there is nothing in Sulton's infringement
claim that would permit such a conclusion at this point.
Judge Kaplan has considered Sulton's remaining arguments of found
and them all wanting, essentially for the reasons advanced by the
Defendants. Accordingly, he grants the Defendants' motion for
summary judgment dismissing Sulton's copyright infringement claim.
A full-text copy of the Court's Sept. 13, 2022 Memorandum Opinion
is available at https://tinyurl.com/fy5jntbp from Leagle.com.
Ryan E. Cronin -- ryan.cronin@blankrome.com -- Gregory M. Bordo --
GBordo@BlankRome.com -- David M. Perry -- Perry@BlankRome.com --
BLANK ROME LLP, Evan S. Cohen -- esc@cohenmusiclaw.com -- Maryann
R. Marzano -- mmarzano@cohenmusiclaw.com -- COHEN MUSIC LAW,
Attorneys for the Plaintiffs.
Steven M. Bierman, Melanie Berdecia -- MBERDECIA@SIDLEY.COM --
Rollin A. Ransom -- RRANSOM@SIDLEY.COM -- Lisa M. Gilford --
LGILFORD@SIDLEY.COM -- Adriane Peralta --
ADRIANE.PERALTA@SIDLEY.COM -- SIDLEY AUSTIN LLP, Attorneys for the
Defendants.
UNION PACIFIC: Wins Bid for Summary Judgment v. Blankinship
-----------------------------------------------------------
In the class action lawsuit captioned as James Blankinship v. Union
Pacific Railroad Company, Case No. CV-21-00072-TUC-RM (D. Ariz.),
the Hon. Judge Rosemary Marquez entered an order granting the
Defendant's motion for summary judgment.
The remaining claims in this action -- Plaintiff's ADA disparate
treatment and disparate impact claims asserted in Counts One and
Two of the First Amended Complaint -- are dismissed with prejudice
as time-barred, the Court says.
In its Motion for Summary Judgment, the Defendant argues that the
Plaintiff's remaining claims are time-barred and that they fail on
the merits. The Court finds that the Plaintiff's claims are
time-barred. The Court therefore declines to address the parties'
arguments concerning the merits of the claims.
Union Pacific is a freight-hauling railroad that operates 8,300
locomotives over 32,200 miles routes in 23 U.S. states west of
Chicago and New Orleans.
A copy of the Court's order dated Sept. 6, 2022 is available from
PacerMonitor.com at https://bit.ly/3S7qnCG at no extra charge.[CC]
UNITED AIRLINES: N.D. Illinois Dismisses England Suit W/o Prejudice
-------------------------------------------------------------------
In the case, KENNETH ENGLAND, Plaintiff v. UNITED AIRLINES, INC.,
Defendant, Case No. 20-cv-02877 (N.D. Ill.), Judge Martha M. Pacold
of the U.S. District Court for the Northern District of Illinois,
Eastern Division, grants United's motion to dismiss and dismisses
the complaint without prejudice.
On March 25, 2020, in response to covid and the resulting emergency
economic conditions, Congress enacted the Coronavirus Aid, Relief,
and Economics Security Act (CARES Act), Pub. L. No. 116-136, 134
Stat. 281 (2020). The Act directed the United States Department of
the Treasury to provide payroll support funds of up to $25 billion
in the aggregate to passenger airlines for the exclusive use of
paying employee wages, salaries, and benefits. The Act required
that, to be eligible for funds, an airline provide certain
assurances to Treasury, including that the airline would refrain
from conducting involuntary furloughs or reducing pay rates and
benefits until Sept. 30, 2020.
On April 20, 2020, as authorized by the CARES Act, United and
Treasury entered into a Payroll Support Program Agreement ("PSP
Agreement"), reflecting the assurances required by the Act --
including that United would refrain from furloughing employees or
reducing their pay rates and benefits through Sept. 30, 2020. It
received initial payroll support of approximately $2.5 billion and
ultimately received payroll support of approximately $5 billion in
total.
In return, United made the assurances required by the CARES Act,
including to "use the Payroll Support exclusively for the
continuation of Wages, Salaries, and Benefits" of its employees;
not to conduct "an Involuntary Termination or Furlough of any
Employee between the date of this Agreement and Sept. 30, 2020";
and (with specified exceptions) not to reduce, through Sept. 30,
2020, the pay rate of any employee earning a salary, the pay rate
of any employee earning wages, or employee benefits.
On May 4, 2020, United announced that the CARES Act assistance only
covered part of its payroll costs and that United would be
implementing an unpaid time off program for certain employees
(domestic management and administrative employees). According to
the complaint, despite receiving payroll support, United mandated
unpaid leave, requiring domestic management and administrative
employees to take 20 unpaid days off between May 16, 2020 and Sept.
30, 2020.
After United announced the mandatory unpaid leave, England, a
United employee, brought the putative class action against it,
alleging breach of contract. England alleges that by mandating
unpaid leave, United breached its agreement with Treasury. England
seeks to proceed on the breach of contract claim as a third-party
beneficiary of the agreement between United and Treasury.
United moved to dismiss, contending that the third-party
beneficiary breach of contract claim is foreclosed by Astra USA,
Inc. v. Santa Clara County, 563 U.S. 110 (2011). Dismissal is
appropriate where "the allegations in a complaint, however true,
could not raise a claim of entitlement to relief." England does not
assert that the CARES Act creates a private right of action to
enforce the Act. Instead, the complaint alleges that United
breached the PSP Agreement between United and Treasury, and that
England can remedy that breach as an intended third-party
beneficiary of the PSP Agreement.
United contends that Astra forecloses any attempt by England to
enforce the PSP Agreement between United and Treasury as a
third-party beneficiary. Astra held that the third-party
beneficiary suits were "incompatible with the statutory regime."
The Seventh Circuit in dicta has read Astra as holding that "a
government contract that involves no negotiable terms but merely
brings the other party to the contract under a statute (or, we can
assume, a regulation) does not confer third-party beneficiary
status on anyone." Similarly, other courts have read Astra as
generally prohibiting third-party beneficiary claims for government
contracts that mirror a statutory obligation when the statute lacks
a private right of action.
As in Astra, the PSP Agreement mirrors the statute; the agreement
"simply incorporates statutorily required terms and otherwise fails
to demonstrate any intent to allow beneficiaries to enforce those
terms." For example, the CARES Act requires United to "refrain from
conducting involuntary furloughs or reducing pay rates and benefits
until Sept. 30, 2020." The PSP Agreement likewise requires United
to refrain from conducting "an Involuntary Termination or Furlough
of any Employee between the date of this Agreement and Sept. 30,
2020." The "statutory and contractual obligations are one and the
same"; permitting a third-party suit to enforce the PSP Agreement
would render "meaningless" the absence of a private right of action
to enforce United's statutory obligations under the CARES Act.
Mr. England observes that the CARES Act authorizes Treasury to
provide funding to airlines exclusively for employees' wages,
salaries, and benefits. But as Judge Pacold says, in Astra, the
argument that the form agreements specifically named 340B entities
"as the recipients of discounted drugs" and that the "very object"
of the agreements was to benefit those entities (by capping the
price they would be charged) did not overcome the circumstances
that the agreements simply incorporated statutory obligations and
that there was no statutory private right of action. The same is
true in the present case.
Further, the CARES Act provides a means for enforcement that, as in
Astra, rests with the government. Permitting third-party
beneficiary suits could interfere with Treasury's efforts to
administer and monitor CARES Act funding for the airline industry
"on a uniform, nationwide basis," especially considering the rapid
timeframe directed by Congress.
Mr. England contends that Astra is distinguishable because the
CARES Act did not create a regulatory enforcement program. But,
according to Judge Pacold, the CARES Act does include a means of
enforcement in Section 4113(b)(1)(A), as noted. And, as noted (and
as in Astra), permitting third-party beneficiary suits could
interfere with Treasury's efforts to administer and monitor CARES
Act funding for the airline industry "on a uniform, nationwide
basis." Courts have reached a similar conclusion in the context of
another program administered by Treasury involving a response to
emergency economic conditions.
Mr. England also argues that Astra is distinguishable because
unlike the form agreements in Astra, the PSP Agreement resulted
from protracted negotiations between United and Treasury.
Judge Pacold opines that since the terms of the PSP Agreement that
United allegedly breached simply mirror the CARES Act, a
third-party beneficiary breach of contract claim is inconsistent
with the absence of a private right of action in the CARES Act. Nor
does the PSP Agreement itself (apart from the statute) confer
third-party beneficiary rights. "A nonparty becomes legally
entitled to a benefit promised in a contract only if the
contracting parties so intend." The PSP Agreement does not display
an intent for third parties to enforce the Agreement. The Agreement
does not confer third-party beneficiary rights.
In light of the foregoing, Judge Pacold grants the motion to
dismiss. She dismisses the complaint without prejudice. England is
granted leave to file an amended complaint.
A full-text copy of the Court's Sept. 13, 2022 Memorandum Opinion &
Order is available at https://tinyurl.com/2p8cy7pf from
Leagle.com.
UNITED PARCEL: Taylor WPCL Suit Removed to E.D. Pennsylvania
------------------------------------------------------------
The case styled RHONDA TAYLOR and TONYA ANDERSON, individually and
on behalf of all others similarly situated v. UNITED PARCEL
SERVICE, INC., individually and d/b/a UPS, Case No. 2022-T-1901,
was removed from the Pennsylvania Court of Common Pleas,
Philadelphia County, to the U.S. District Court for the Eastern
District of Pennsylvania on September 14, 2022.
The Clerk of Court for the Eastern District of Pennsylvania
assigned Case No. 2:22-cv-03676 to the proceeding.
The case arises from the Defendant's alleged failure to pay
overtime wages in violation of the Pennsylvania's Wage Payment and
Collection Law.
United Parcel Service, Inc. is an American multinational shipping
and supply chain management company, headquartered in Atlanta,
Georgia. [BN]
The Defendant is represented by:
Garrett D. Kennedy, Esq.
DLA PIPER LLP (US)
One Liberty Place
1650 Market Street, Suite 5000
Philadelphia, PA 19103-7300
Telephone: (212) 335-4708
Facsimile: (212) 335-4501
E-mail: garrett.kennedy@us.dlapiper.com
UNITED PARKING: Davis Sues Over Improper Parking Fee Charges
------------------------------------------------------------
FRED MICHAEL DAVIS; and LISA FRANKFORT individually and on behalf
of all others similarly situated, Plaintiffs v. UNITED PARKING,
LLC, Defendant, Case No. CACE-22-013961 (Fla., Cir., Broward Cty.,
Sept. 16, 2022) alleges violation of the Florida Deceptive and
Unfair Trade Practices Act.
According to the complaint, the Defendant advertises and solicits
its services for payment of $10 for valet services or $25)for VIP
services. However, consumers who pay the Defendant with a credit or
debit card are charged an undisclosed fee, in violation of the
FDUTPA. The Defendant's improper charging of an undisclosed
surcharge for credit or debit card use violates FDUTPA, says the
suit.
UNITED PARKING, LLC is a premier parking provider specializing in
boutique hotels and large scale parking operations. [BN]
The Plaintiff is represented by:
Mason A. Pertnoy, Esq.
Justin M. Henning, Esq.
KRINZMAN HUSS LUBETSKY FELDMAN & HOTTE
Alfred I. duPont Building
169 E. Flagler St., Suite 500
Miami, FL 33131
Telephone: (305) 854-9700
Facsimile: (305) 854-0508
Email: map@khllaw.com
mschneider@khllaw.com
eservicemia@khllaw.com
- and -
Gary N. Mansfield, Esq.
Ariane Wolinsky, Esq.
MANSFIELD BRONSTEIN & STONE
500 E. Broward Blvd., Ste. 1450
Fort Lauderdale, FL 33394
Telephone: (954) 601-5600
Facsimile: (954) 961-4756
Email: gary@mblawpa.com
ariane@.mblawpa.com
Litigation@mblawpa.com
UNITED SERVICES: MSP Recovery Allowed to Seal Exhibits
------------------------------------------------------
In the class action lawsuit captioned as MSP RECOVERY CLAIMS,
SERIES LLC, et al., v. United Services Automobile Association
(USAA) et al., Case No. 1:20-cv-21530 (S.D. Fla.), the Hon. Judge
Darrin P. Gayles entered an order granting the Plaintiff's motion
to file under seal Exhibits in Support of Its Motion for Class
Certification.
The suit alleges violation of the Medicare Act involving medicare
recovery.
MSP Recovery is a Medicaid and Medicare Secondary Payer Act
recovery specialist.
USAA is a San Antonio-based Fortune 500 diversified financial
services group of companies.[CC]
UNITED STATES: Federal Judge Grants Marines Class Action Status
---------------------------------------------------------------
Bethany Blankley at The Center Square reports that a federal judge
has granted class action status for U.S. Marines in their fight
against Secretary of Defense Lloyd Austin's COVID-19 vaccine
mandate. The ruling is another blow to the Biden administration and
consistent with other court rulings that have found military
branches are violating federal law.
Judge Steven Merryday of the U.S. District Court Middle District of
Florida Tampa Division granted a classwide preliminary injunction
for Marines serving in active and reserve duty who were denied
religious accommodation requests from taking the COVID-19 vaccine.
Merryday preliminarily enjoined the Department of Defense from
"enforcing against a member of the class any order, requirement, or
rule to accept COVID-19 vaccination, . . . . from separating or
discharging from the Marine Corps a member of the class who
declines COVID-19 vaccination, and . . . . from retaliating against
a member of the class for the member's asserting statutory rights
under RFRA [Religious Freedom Restoration Act]."
He defined the class as "all persons on active duty or in the ready
reserve (1) who serve under the command of the Marine Corps, (2)
who were affirmed by a chaplain as harboring a sincere religious
objection, (3) who timely submitted an initial request for a
religious accommodation, (4) who were denied the initial request,
(5) who timely appealed the denial of the initial request, and (6)
who were denied or will be denied after appeal."
According to federal data, 3,733 Marines requested religious
accommodations and only 11, 0.295%, were granted among those who
were already retiring.
In response, Merryday asked, "Is it more likely than not - in
nearly all 3,733 cases - that no reasonable accommodation was
available?"
He said, "the record reveals the substantial likelihood of a
systemic failure by the Marine Corps to discharge the obligations
established by RFRA." Granting the class wide preliminary
injunction was warranted "to preserve the status quo, to permit the
full development of the record without prejudice to the plaintiffs,
and to permit both a trial and a detailed, fact-based resolution of
the controlling issues of fact and law."
He, like the DOD-OIG, argue those in the military must comply with
RFRA.
"RFRA includes everyone from the President to a park ranger,"
Merryday said; "from the Chief Justice of the United States to a
probation officer, from the Speaker of the House to a member's
district office staffer, from the Chairman of the Joint Chiefs of
Staff to a military recruiter - even if they don't like it and even
if they don't agree with it. The Free Exercise Clause and RFRA are
the law of the land."
The Marine Corps granted religious accommodations "only to the rare
applicant both eligible to, and electing to, retire," Merryday
said. "In the instance of all other applicants, the Marine Corps in
denying each appeal relies on an almost identical letter, a
template, a form rejection. In denying the appeals, the letter
invariably finds - even if the chaplain affirms the sincerity of
the religious objection to the COVID-19 vaccine - that the COVID-19
vaccination requirement imposes no 'substantial burden' on the
applicant's Free Exercise."
The Marine Corps and other branches have argued federal courts
don't have jurisdiction over military matters and their command
discretion isn't curtailed by the RFRA. They've asserted, "The
Supreme Court has made clear: 'Judges are not given the task of
running the Army,'" citing a 1953 case, Orloff v. Willoughby, for
example.
But federal judges in multiple states have disagreed, including
Merryday, arguing the 1953 case was 40 years before Congress
enacted RFRA.
Merryday said district courts were "selected by Congress and
enacted in RFRA to resolve a dispute under RFRA (in other words,
Congress and the President, not the district court, chose the
district court as the proper forum for service members to assert
the RFRA claim asserted in this action.)"
"Although certainly not 'given the task of running the Army,' the
courts in the narrow instance of RFRA are assigned to, and
entrusted to, ensure that those who run the Marine Corps (and the
military in general and every other component of the federal
government) conform their actions to the governing law, to RFRA, to
which the admirals and the generals and the commandants are
unquestionably subordinate - just like the President, the Speaker
of the House, the Chief Justice, and every other person in the
federal government," he said.
Merryday also addressed the fact that plaintiffs were given only
two days' notice to be discharged, ordered to move, and fined $100
daily rent if they stayed in military housing.
He said this "suggests retribution and retaliation, the existence
of which detracts from the Marine Corps's claim elsewhere in this
action to good faith treatment of a religious objector."
The mandate forced religious objectors to choose "between betraying
a sincere religious conviction and suffering court martial or
separation from the military and, likely, visiting adverse
consequences on the Marine's family (such as the abrupt eviction
from military housing and disenrollment from military schools)," he
added. [GN]
UNITED STATES: Tolling Standards Can Apply in Federal Class Suit
----------------------------------------------------------------
jdsupra.com reports that in a recent case addressing the novel
issue of whether foreign law trumped United States law for purposes
of class action tolling, the U.S. Court of Appeals for the Eleventh
Circuit concluded that Colombian law on equitable tolling applied,
even though the defendant was based in New Jersey.
The case has its origins in the mid-2000s, when Chiquita pleaded
guilty in federal court to engaging in transactions with a
terrorist group in Colombia. In 2007, following Chiquita's guilty
plea, family members (the putative class) of banana workers who had
been targeted by the terrorist group filed a putative class action
against Chiquita in a New Jersey federal court. The putative class
plaintiffs brought their claims under the Alien Tort Statute, the
Torture Victim Protection Act, and New Jersey and Colombia law. The
litigation was centralized in the Southern District of Florida.
After the district court mostly denied Chiquita's motion to
dismiss, the Eleventh Circuit, on interlocutory appeal, dismissed
the ATS and TVPA claims.
The putative class plaintiffs had filed a second amended complaint
in November 2012, naming Chiquita and several of its executives and
employees as defendants. The putative class plaintiffs then moved
to file a third amended complaint in March 2017 to add several
hundred additional plaintiffs. The district court denied that
motion and, in 2019, denied class certification.
The plaintiffs to the immediate matter, no longer members of the
putative class, then filed a new complaint against Chiquita in New
Jersey federal court, alleging claims under New Jersey law and
violations of Colombian civil and criminal law. The case was once
again transferred to the Southern District of Florida..
The question then became whether the new matter-which was not a
class action-was timely. That determination rested on whether
federal or state tolling principles applied.
Under American Pipe & Construction Co. v. Utah, 414 U.S. 538 (1974)
("American Pipe"), the Supreme Court held that a timely filed
complaint under Rule 23 tolled the limitations period for potential
class members and that if class certification were denied, the
unsuccessful class could intervene in the original case without
risking an untimely filing.
However, the district court in this case, like most other federal
courts, rejected that American Pipe tolling applied to a diversity
action, which under the Erie doctrine, is governed by state law.
The district court then looked to New Jersey's choice of law
principles and ultimately determined that Colombia had a greater
interest in the matter and, therefore, Colombia's 10-year
limitations period applied. The district court then dismissed the
case, holding that it was untimely under Colombian law and that the
putative class proceedings did not toll the limitations period for
the new complaint.
On appeal, the plaintiffs argued that New Jersey law should apply.
The application of New Jersey law would have recognized that the
plaintiffs' claims had been tolled at the outset of the litigation
in 2007. However, the court could not simply just apply New Jersey
law, which required-under choice-of-law principles-to determine
which jurisdiction (New Jersey or Colombia) had the greater
connection to the matter. The court noted that the plaintiffs'
connection to New Jersey was weak because the substantive claims
underlying their lawsuit were all governed by Colombian law. The
only connection the lawsuit had with New Jersey was that Chiquita
was incorporated there, and, as such, the court concluded that
Colombia had a more "significant relationship" with the case.
The plaintiffs maintained that Colombian law still permitted
tolling and that because the difference in tolling regimes
presented a procedural question, the court could still look to New
Jersey law on tolling. However, the Eleventh Circuit rejected this
argument, specifically noting that because Colombia employs a civil
law system that imposes "strict limits" on judges, it does not have
the flexibility to "delegate equitable power to judges," as do
civil systems of law. Rather, as the court explained, "their
legislatures make the deliberate choice to delegate power in
limited, carefully defined circumstances."
To that end, the court noted that the Colombian legislature had not
codified any rules regarding class action tolling nor any
indication that its judges could create a doctrine similar to that
of American Pipe. The court explained that because the difference
in tolling principles between New Jersey and Colombia was
"outcome-determinative." As such, Colombia law's governing
equitable tolling prevailed.
Even though the court rejected the plaintiffs' argument that
Colombia law applied, it also concluded that the district court had
erred in not permitting the plaintiffs to amend their complaint to
provide allegations which would support minority tolling, under
which certain plaintiffs could argue that their claims were tolled
until they reached the age of majority. For that reason, the court
remanded the case for further consideration on that issue.
The variety of equitable tolling regimes is ever-growing, and this
case illustrates the complexities of deciding which jurisdiction's
equitable tolling rules apply in a diversity case in federal class
actions. Although it is rare that foreign law will govern these
matters, this case provides a strong blueprint as to how federal
courts will assess that law's applicability as to equitable
tolling. [GN]
URBAN OUTFITTERS: Faces Tooley Suit Over Telephonic Sales Calls
---------------------------------------------------------------
MARTIN TOOLEY, individually and on behalf of all others similarly
situated v. URBAN OUTFITTERS, INC., Case No. 6:22-cv-01686 (M.D.
Fla., Sept. 15, 2022) contends that the Defendant promotes and
markets its merchandise, in part, by placing unsolicited phone
calls to wireless phone users, in violation of the Florida
Telephone Solicitation Act.
The Defendant is a multinational lifestyle retail corporation that
sells a variety of clothing and products to consumers.
To promote its goods and services, Defendant engages in aggressive
telephonic sales calls to consumers without having secured prior
express written consent as required under the FTSA and with no
regard to consumer rights under the TCPA, says the suit.
The Defendant's alleged telephonic sales calls have caused
Plaintiff and the Class members harm, including violations of their
statutory rights, statutory damages, annoyance, nuisance, and
invasion of their privacy. Through this action, the Plaintiff seeks
an injunction and statutory damages on behalf of himself and the
Class members, as defined below, and any other available legal or
equitable remedies resulting from the unlawful actions of the
Defendant.[BN]
The Plaintiff is represented by:
Andrew J. Shamis, Esq.
Garrett O. Berg, Esq.
SHAMIS & GENTILE P.A.
14 NE 1st Ave., Suite 705
Miami, FL 33132
Tel: (305) 479-2299
E-mail: ashamis@shamisgentile.com
gberg@shamisgentile.com
- and -
Scott Edelsberg, Esq.
Christopher Gold, Esq.
EDELSBERG LAW, P.A.
20900 NE 30th Ave., Suite 417
Aventura, FL 33180
Telephone: (786) 289-9471
Facsimile: (305) 975-3320
E-mail: scott@edelsberglaw.com
chris@edelsberglaw.com
VALLE DEL SOL: Castaneda Labor Suit Removed to E.D. California
--------------------------------------------------------------
The case styled ADELA CASTANEDA, individually and on behalf of all
others similarly situated v. VALLE DEL SOL, LLC, SUN VALLEY PACKING
LC, and DOES 1-10, inclusive, Case No. VCU292443, was removed from
the Superior Court of the State of California for the County of
Tulare to the U.S. District Court for the Eastern District of
California on September 14, 2022.
The Clerk of Court for the Eastern District of California assigned
Case No. 1:22-cv-01174-ADA-SKO to the proceeding.
The case arises from the Defendants' alleged violations of the
California Labor Code and the California's Unfair Competition Law
including failure to pay overtime wages, failure to provide meal
periods or compensation in lieu thereof, failure to provide rest
periods or compensation in lieu thereof, failure to furnish
accurate itemized wage statements, failure to timely pay all wages
due upon separation of employment, and unfair competition.
Valle Del Sol, LLC is a restaurant owner and operator in
California.
Sun Valley Packing LC is a packaging supply store based in
California. [BN]
The Defendants are represented by:
Thomas E. Campagne, Esq.
CAMPAGNE & CAMPAGNE
Airport Office Center
1685 North Helm Avenue
Fresno, CA 93727
Telephone: (559) 255-1637
Facsimile: (559) 252-9617
E-mail: tcampagne@campagnelaw.com
VIRGINIA: Schools, Officials Face Suit Over Specialized Education
-----------------------------------------------------------------
Jack Moore at wtop.com reports that Fairfax County Public Schools
and the Virginia Department of Education have been hit with a
federal class-action lawsuit claiming families of disabled children
who challenge schools' decisions about specialized education plans
don't get a fair shake.
The lawsuit, filed by Trevor and Vivian Chaplick, the parents of a
disabled child, names as defendants Fairfax County School Board;
Michelle Reid, superintendent of the school system; the Virginia
Department of Education and Jillian Balow, superintendent of public
instruction at VDOE.
The suit was filed in the Eastern District of Virginia.
The federal Individuals with Disabilities Education Act guarantees
a free appropriate public education to disabled children, and also
gives parents the right to challenge schools' decisions about
education provided to their children in a due process hearing
before an impartial hearing officer.
But the lawsuit says families in Northern Virginia who challenge
schools' decisions face a "near-insurmountable hurdle" in getting a
fair hearing, because the state's "carefully curated system of
crony hearing officers" are biased toward schools.
The lawsuit includes previously unreported data showing that
parents in Northern Virginia who seek a hearing challenging a
school's decision on educational decisions for disabled students
prevail less than 1% of the time, and that several of the nearly
two dozen hearing officers who issue rulings had never ruled in
favor of a family.
The suit claims the state's practices violate the IDEA law, as well
as constitutional rights to due process, and seeks a decision that
forces changes to Virginia's policies.
The Chaplick's son, who is now 19, is profoundly disabled according
to the suit, and was placed in a special education building in an
FCPS school. After he struggled to make progress academically and
behaviorally, his parents sought his residential educational
placement at a special school in Winchester, according to the
lawsuit.
However, FCPS rejected the parents' request. Later, the Chaplick's
appeal before a hearing officer was also rejected.
The lawsuit claims the data it obtained through FOIA requests show,
"Parents and disabled students in Virginia almost always lose,
especially in Northern Virginia."
For example, in the 11 years between 2010 and July 2021, there were
395 cases brought by parents challenging a school's decision under
the IDEA law. In just three cases - less than 1% of all cases - the
hearing officer ruled in favor of the parents who brought the
challenge.
Statewide, over the same time period, there were 847 cases brought
under the IDEA law and just 13 rulings - 1.5% - in favor of
parents, according to the lawsuit.
The lawsuit said studies have shown that, nationally, parents
prevail in about 30% of cases brought under the IDEA law.
The lawsuit claims the state's department of education and local
school systems work together to maintain a "carefully curated"
group of just 22 hearing officers who take cases, and "who nearly
always rule in favor of school districts and against parents."
Of the 22 hearing officers who issued rulings between 2010 and
2021, 14 of them never ruled fully in favor of a disabled student
or family in a due process hearing, according to the lawsuit.
While a significant number of cases filed by parents never make it
to a hearing and are withdrawn by parents, the suit says, "it is
likely that many parents gave up, rather than face significant
legal bills, with very little chance of success. Unfortunately,
such parental deterrence is the intended consequence of Virginia's
carefully curated system of crony hearing officers."
In a statement, Trevor Chaplick said the suit aims to "shine a
light on and reveal the deeply troubling ruling record of Virginia
hearing officers against parents of disabled children in IDEA due
process cases. We believe this is a scandal that has existed for at
least twenty years."
The Civil Right Clinic of Georgetown Law School and law firms
Susman Godfrey LLP and Merritt Law PLLC are all part of the legal
team representing the Chaplicks.
In an email, Charles Pyle, a VDOE spokesman, said the department is
aware of the filing but does not comment on pending litigation.
"The department is committed to ensuring that students with
disabilities receive all services and supports that they are
entitled to under federal and state law," Pyle said.
WTOP has requested comment from FCPS. [GN]
VIRGINIA: Violates Rights of Disabled Students, Class Action Says
-----------------------------------------------------------------
Nathaniel Cline at Virginia Mercury reports that a federal
class-action suit has been filed against the Virginia Department of
Education and Fairfax County School Board, claiming they are
violating the rights of disabled students under the federal
Individuals with Disabilities Education Act.
The plaintiffs in the case - the parents of an anonymous Fairfax
County student and their nonprofit, Hear Our Voices, an
organization focused on supporting disabled and special needs
students - argue that VDOE and the Fairfax school board "have
actively cultivated an unfair and biased" hearing system to oversee
challenges to local decisions about disabled students.
The parents claim that state hearing officers, who are responsible
for holding impartial hearings to resolve disagreements over issues
related to special education services, have ruled
disproportionately against parents for two decades.
Between 2010 and 2021, Virginia parents who initiated a due process
hearing "received a favorable hearing" in only 13 of 847 cases, the
lawsuit says.
"Moreover, during the last twenty years, approximately two-thirds
of the hearing officers have never ruled in favor of parents, not
even once," the plaintiffs wrote. "Even worse, 83% of hearing
officers in Northern Virginia never once ruled in favor of parents
over the eleven-plus years from 2010 to July 2021."
The lawsuit says that the low success rate for parental challenges
in Virginia "is a glaring outlier compared to other states," where
studies have found rulings in favor of parents hovering around
30%.
Charles Pyle, a spokesperson with the Virginia Department of
Education, said in an email that the department does not comment on
pending litigation but is "committed to ensuring that students with
disabilities receive all services and supports that they are
entitled to under federal and state law."
Fairfax County Public Schools did not immediately respond to a
request for comment.
Trevor Chaplick, the father of the Fairfax student, said the
lawsuit was brought forward to reveal the "deeply troubling ruling
record" of Virginia's hearing officers against parents of disabled
children.
"The parents of disabled and special needs children deserve a
better fate from the Virginia public school system," said Chaplick
in a statement.
The Chaplicks allege that the Department of Education developed a
roster of "school-friendly" hearing officers, allowed local
education agencies to communicate improperly with hearing officers,
hired biased officers due to financial interests, and declined to
certify new officers for more than a decade.
The Civil Rights Clinic of Georgetown Law School, the law firm of
Susman Godfrey, LLP, and Merritt Law, PLLC represent the family.
The case is being heard in the Alexandria Division of the U.S.
District Court for the Eastern District of Virginia.
"Children with disabilities and their families deserve 'a life like
yours,'" said Aderson Francois, director for the Georgetown Civil
Rights Clinic, in a statement. "This lawsuit is the first step in
making sure that the commonwealth of Virginia provides these
children with an education that meets their needs." [GN]
WAL-MART ASSOCIATES: Carlos Loses Bid for Class Certification
-------------------------------------------------------------
In the class action lawsuit captioned as NICO CARLOS, individually
and on behalf of all others similarly situated, v. WAL-MART
ASSOCIATES, INC., a Delaware corporation; and DOES 1 through 50,
inclusive, Case No. 5:21-cv-00294-AB-KK (C.D. Cal.), the Hon. Judge
Aandre Birotte Jr. entered an order denying the Plaintiff's motion
for class certification.
The Court finds that class certification is inappropriate because
the Plaintiff has not established the degree of commonality
required by Rule 23(a) nor the predominance requirement under Rule
23(b)(3).
On September 3, 2021, the Plaintiff filed the operative Fifth
Amended Complaint on an individual basis and on behalf of all
others similarly situated. The Fifth Amended Complaint asserts the
following seven causes of action:
1. failure to pay overtime in violation of the California
Labor Code;
2. failure to pay minimum wage in violation of the Labor
Code;
3. failure to pay timely wages upon termination in violation
of the Labor Code;
4. failure to reimburse for necessary expenses in violation
of the Labor Code;
5. penalties under the Private Attorneys General Act (PAGA);
6. unpaid overtime wages in violation of the Fair Labor
Standards Act (FLSA); and
7. unpaid minimum wages in violation of the FLSA.
On May 3, 2022, the Court granted Defendant's motion for partial
summary judgment and dismissed the fourth and fifth causes of
action to the extent they related to the failure to reimburse for
face mask-related expenses.
Walmart is an American multinational retail corporation that
operates a chain of hypermarkets.
A copy of the Court's order dated Sept. 6, 2022 is available from
PacerMonitor.com at https://bit.ly/3xDKaBY at no extra charge.[CC]
WAL-MART INC: Oettle Seeks to Certify Illinois Class
----------------------------------------------------
In the class action lawsuit captioned as TRISTA OETTLE,
individually and on behalf of all others similarly situated, v.
WAL-MART, INC., Case No. 3:20-cv-00455-DWD (S.D. Ill.), the Hon.
Judge entered an order certifying the following class and herself
as class representative, and Maag Law Firm, LLC, as class counsel:
1. Illinois Class -- Implied Warranty of Merchantability --
Walmart, Inc.
"All citizens and residents of Illinois that purchased
the product from Walmart, Inc. within four years of the
filing of this action, until final judgment."
2. Illinois Class -- Magnuson-Moss Warranty Act – Walmart,
Inc.
"All citizens and residents of Illinois that purchased
the product from Walmart, Inc. within four years of the
filing of this action, until final judgment."
Excluded from the Class are members of the judiciary,
the Defendant, and any entity in which they have a
controlling interest, including officers and directors
and the members of its immediate corporate family and
the Plaintiff's counsel.
The First Amended Complaint in this case alleges that Defendant
breached the Implied Warranty of Merchantability and the
Magnuson-Moss Warranty Act, with the alleged breaches denied by
Defendant.
Walmart is an American multinational retail corporation that
operates a chain of hypermarkets, discount department stores, and
grocery stores from the United States, headquartered in
Bentonville, Arkansas.
A copy of the Plaintiff's motion to certify class dated Sept. 6,
2022 is available from PacerMonitor.com at https://bit.ly/3qNV4kC
at no extra charge.[CC]
The Plaintiff is represented by:
Peter J. Maag, Esq.
MAAG LAW FIRM, LLC
22 West Lorena Avenue
Wood River, IL 62095
Telephone: (618) 216-5291
Facsimile: (618) 551-0421
E-mail: lawmaag@gmail.com
WELLS FARGO: Agrees to Settle Mortgage Forbearance Suit for $94-M
-----------------------------------------------------------------
Brad Beckett at omahadailyrecord.com reports that Wells Fargo
agreed to pay $94 million to settle a class-action lawsuit that
placed more than 200k mortgage borrowers into forbearance during
the pandemic, unlawfully and without their consent. According to
the report, customers who inquired about forebearance, but did not
formerly request it, got it anyway, damaging their credit scores
and making it more difficult for them to refinance. Wells Fargo
denied any wrongdoing in the settlement that includes over 212k
loans.
" . . . Chief Financial Officer Mike Santomassimo said the company
was content to lose ground in mortgage originations and is "really
focused on our consumer and wealth clients." He added that the
servicing business would shrink over time. [GN]
WEST ORANGE, NJ: Balestiere Suit Removed to D.N.J.
--------------------------------------------------
The case styled FRANK BALESTIERE, JOSEPH DELUISE, SEAN GAYNOR,
DANIEL KEENAN, SERGIO RIVAS, CARMINE RUTA, and JOSEPH NETO
Plaintiffs v. TOWNSHIP OF WEST ORANGE, JONATHAN GROSS, ANTHONY
VECCHIO, and ROBERT D. PARISI, Defendants, Case No. ESX-L-1734-22,
was removed from the Superior Court of New Jersey, Law Division,
Essex County, to the U.S. District Court for the District of New
Jersey on Sept. 7, 2022.
The Clerk of Court for the District of New Jersey assigned Case No.
2:22-cv-05447 to the proceeding.
The complaint is brought over Defendants' alleged violations of the
federal and state civil rights statutes in placing the Plaintiffs
on unpaid leave pursuant to the Township's mandatory COVID-19
vaccination policy which required Township employees to obtain the
COVID-19 vaccine. The Plaintiffs argue that the Township failed to
provide accommodations for Plaintiffs.
The Township of West Orange is a suburban township in Essex County,
New Jersey.[BN]
The Defendants are represented by:
Richard D. Trenk, Esq.
TRENK ISABEL SIDDIQI & SHAHDANIAN P.C.
290 W. Mt. Pleasant Avenue, Suite 2350
Livingston, NJ 07039
E-mail: rtrenk@trenkisabel.law
WEST VIRGINIA: Southern Regional Jail Faces Civil Rights Suit
-------------------------------------------------------------
Annie Moore at wvva.com reports that a federal class action civil
rights lawsuit has been filed on behalf of hundreds of current and
former inmates at Southern Regional Jail (SRJ). The suit was filed
by attorneys Steve New, Russell Williams, Zach Whitten, Robert
Dunlap, and Tim Lupardus.
WVVA News was given permission by attorney Steve New to share some
of the exhibits, photographs, and videos taken by correctional
officers that will be part of the court filing.
The complaint references a lack of access to water, food, and beds
off the floor. It also references overcrowded conditions and fights
that were allowed to go on to the point of injury. Backing up those
claims in the suit are five different correctional officers who
provided pictures and videos inside the jail.
A spokesperson for the Dept. of Homeland Security said the they
could not comment on ongoing litigation. But in April, in the
department's own investigation into the jail, investigators found
no evidence of inhumane living conditions.
"If I would have seen that one of these allegations was true, it
would have been immediately taken care of and these individuals
would have been terminated," said Sec. Jeff Sandy at the
investigation's conclusion in April.
The suit filed names not only the regional jail system, but the
county commissions as well, which, under state code are responsible
for contracting the protection of inmates to the state.
"At what levels were decisions being made not to spend money on
things like broken toilets, showers, bunks, or another facility to
alleviate the 150 percent overcrowding? We're going to get answers
in this litigation," New said.
The company previously contracted to provide health care to
inmates, PrimeCare, is also named in the suit. But New said
Wexford, the latest state-contracted company, may also be included
after the death of inmate Alvis Shrewsbury over the weekend. His
family claims he was beaten by other inmates and refused medical
care.
"That's after your news stories and so much attention has been
brought to this. If we have evidence that Wexford is doing the same
thing that Primecare did, Wexford will also be a defendant.
Whitten said it is a suit they hope will bring justice for their
clients, but even more so, bring light to an issue that for too
long has been locked in the dark.
"It's a jail. It's not supposed to be a five star hotel. But when
somebody's brother, son, mother goes into jail, they shouldn't be
left wondering if they'll ever see them alive again."
New said the first hearing on the case is expected within 45 days.
[GN]
YATSEN HOLDING: Bids for Lead Plaintiff Appointment Due Nov. 22
---------------------------------------------------------------
Shareholder rights law firm Johnson Fistel, LLP announces that a
class action lawsuit has commenced on behalf of investors of Yatsen
Holding Limited (NYSE: YSG) ("Yatsen" or the "Company"). The class
action is on behalf of shareholders who purchased or otherwise,
acquired Yatsen American Depository Shares ("ADS") between November
19, 2020 and March 10, 2022 (the "Class Period"), including in,
pursuant to, and/or traceable to the Company's IPO. Investors are
hereby notified that they have until November 22, 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/yatsen-ysg-class-action-ipo
There is no cost or obligation to you.
According to the complaint filed, during the Class Period,
including in the registration statement and IPO prospectus, Yatsen,
and the other named defendants misled investors into believing that
Perfect Diary and Little Ondine were thriving, thereby driving
Yatsen's "healthy" top-line growth at the time of its IPO and
quarter after quarter thereafter. In truth, however, cosmetic and
skincare sales of Perfect Diary and Little Ondine products were
declining in the period leading up to (and including at the time
of) the IPO and throughout 2021. Moreover, as the truth about
Yatsen's business reached the market, the value of the Company's
shares declined dramatically, causing Yatsen investors to suffer
significant damages.
A lead plaintiff will act on behalf of all other class members in
directing the Yatsen 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 Yatsen 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]
[*] Washington Court of Appeals Voids Labor Class Action Waivers
----------------------------------------------------------------
jdsupra.com reports that in a recently published decision, the
Washington Court of Appeals declared class action waivers in
certain employment agreements unenforceable.
In Oakley v. Domino's Pizza, LLC, plaintiff Oakley brought claims
under the Washington Minimum Wage Act (WMWA) and wage rebate act.
Oakley was a delivery driver for Domino's supply chain (not a pizza
delivery driver), where Oakley delivered raw materials to franchise
locations, and some routes required he cross state lines. When he
began working for Domino's, he signed an agreement to arbitrate his
claims under the Federal Arbitration Act (FAA) and also waived his
right to participate in class actions. Despite this, he filed a
class action lawsuit asserting wage and hour claims on his own
behalf and on behalf of a class of drivers.
Two primary legal issues determined whether Domino's request to
force the claim into arbitration would succeed: (1) Whether the
agreement was governed by State or Federal law; and (2) if State
law applied, whether the class action waiver was enforceable.
As to the first issue, the Court found that the Federal Arbitration
Act (FAA), which specifically exempts "seamen, railroad employees,
or any other class of workers engaged in foreign or interstate
commerce" did not apply to this contract, because of the exemption.
The Court first acknowledged that "a narrow interpretation [of the
exemption] is appropriate" but then relied on 9th Circuit precedent
finding even local drivers were "engaged in" interstate commerce if
the goods they were transporting were in the interstate chain of
commerce. That Oakley himself drove goods over state lines somewhat
frequently led the Court to declare that this contract was exempt
from the FAA.
The Court then examined the class action waiver contained within
the contract under Washington contract law, finding it
unconscionable, and therefore unenforceable. To find a contrary
public policy necessary to establish unconscionability of the class
action waiver, the Court looked to the State laws protecting
concerted activities and collective bargaining. The Court
effectively equated class action litigation to collective
bargaining, finding "class action suits uphold the same public
policy."
One surprising factor in the Court's analysis was that class
actions are more profitable for plaintiffs' attorneys. Oakley's
attorney claimed, and the Court found important, that the attorney
would have been less inclined to take this case on an individual
basis because it was a small claim and not lucrative enough for the
attorney. No mention was made of the fact that claims under the
WMWA and wage rebate act include recovery of reasonable attorney's
fees, making even small claims financially viable for the
attorneys. Instead, the Court concluded that Oakley could not
afford to hire an attorney, ignoring that such claims nearly always
are litigated on a contingent basis.
Employer takeaways:
First, until the U.S. Supreme Court further clarifies what a
"narrow" view of the "interstate commerce" exemption to the FAA
actually means, any worker whose employment includes transportation
of anything that has been out of state (for example, an Amazon
"last mile" driver) could fall outside coverage of the FAA. The
Federal Circuit courts are currently split on what level of
interstate transportation is necessary to trigger the exemption.
Second, if the employees even arguably are engaged in
transportation, employers in Washington should place less reliance
in class action waivers, particularly when such waivers affect
statutorily protected rights. Of course, the existence and
enforceability of such waivers is perhaps the most important early
issue to be decided in class action litigation. When class action
waivers are enforceable, usually quick settlements follow. However,
if a Washington court finds a class action waiver conflicts with
litigant's potential scope or availability of recovery-the purpose
of the class action waiver-at least one Division of Washington
Courts may find such clauses unconscionable. Plaintiff's attorneys
now have yet another avenue of attacking those waivers: they will
make less money (that until now was merely implied).
One final reminder:
Even if the FAA is otherwise applicable, due to recent changes in
that statute, an employee cannot be required to arbitrate or waive
class action claims of sexual harassment or sexual assault. [GN]
*********
S U B S C R I P T I O N I N F O R M A T I O N
Class Action Reporter is a daily newsletter, co-published by
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USA, and Beard Group, Inc., Washington, D.C., USA. Rousel Elaine T.
Fernandez, Joy A. Agravante, Psyche A. Castillon, Julie Anne L.
Toledo, Christopher G. Patalinghug, and Peter A. Chapman, Editors.
Copyright 2022. All rights reserved. ISSN 1525-2272.
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