/raid1/www/Hosts/bankrupt/CAR_Public/221018.mbx
C L A S S A C T I O N R E P O R T E R
Tuesday, October 18, 2022, Vol. 24, No. 202
Headlines
ACADIA HEALTHCARE: Stockholders Class Certified in St. Clair Suit
AMERICAN LANDMARK: Seeks Denial of Diez Class Certification Bid
AT&T INC: Deadline to File Claim in Hidden Fees' Suit Set Oct. 29
ATLAS AIR: Monteverde Firm Probes Possible Securities Violations
AURORA HEALTH: Settles Wage-and-Hour Class Action for $8.75MM
BARCLAYS PLC: Pomerantz Law Firm Probes Securities Violations
BHP GROUP: Appeal to Exclude Group Members From Australia Dismissed
BLOCK INC: Bids for Lead Plaintiff Appointment Due December 12
BOKF NA: Walker Files Writ of Certiorari with Supreme Court
CABELA'S INC: Website Illegally Tracks Florida Consumers' Info
CANADA: Lawyer Seeks Certification in Missing Indigenous Women Suit
CELLCO PARTNERSHIP: Adell Appeals Arbitration Award to Supreme Ct.
CHARTER COMMUNICATIONS: Appeals Arbitration Bid Denial to 9th Cir.
CHILD DEVELOPMENT: Gambill Files Suit Over Discriminatory Practices
CO-OPTIONS INC: Court Denies Bids to Dismiss Urgent One TCPA Suit
CORNELL UNIVERSITY: Faber, Rahman File Class Certification Bid
COWEN INC: Monteverde Firm Probes Possible Securities Violations
DENVER SHERIFFS DEPARTMENT: Bid for Class Certification Due Nov. 30
DFINITY USA: Seeks Disqualification of Freedman as Lead Plaintiff
DOLLAR BANK: Court Narrows Claims in TCS Suit
DUVAL COUNTY SCHOOL: Helm Loses Bid to Certify Class Action
EBIX INC: S.D. New York Dismisses Saraf's Second Amended Complaint
ENVIVA INC: Rosen Law Probes Possible Securities Class Action
EQT CORPORATION: Asbury, et al., File Renewed Bid for Class Status
FAST PACE: Hutchinson Suit Seeks to Certify FLSA Collective
FINAL EXPENSE: Faces Suit Over Unsolicited Telemarketing Calls
FORD MOTOR: Faces Class Action Suit Over Faulty Water Pumps
FUNKO INC: Agrees to Settle Shareholder Class Action for $7 Million
GOSSAMER BIO: Settlement in Kuhne Suit Approved
GRAPEVINE OF NORTH CAROLINA: Filing for Class Cert Bid Extended
HEATHER MUELLER: Court Certifies Class of Special Children
HINO MOTOR: GMP Law Commences Emission Class Action Lawsuit
HOOVESTOL INC: Hardwick's Bid to Certify Class Granted in Part
INTERNATIONAL GAME: Bids for Lead Plaintiff Appointment Due Dec. 13
JOHNSON & JOHNSON: Edley Loses Class Certification Bid
JOLO INC: Court Grants Rule 23 Class Certification in Saad Suit
JUUL LABS: Bay District Schools Join E-Cigarette Class Action Suit
JUUL LABS: Leon County Joins Other Districts in E-cigarette Suit
KIM BIMESTEFER: G.A., et al., Lose Bid to Certify Class
KIRK MILLER: Loses Bid for Partial Summary Judgment vs AP&CIC
KOHL'S CORP: Court OKs Settlement Deal in Mollett Suit
LAKE COUNTY, MT: Judge Certifies Class Lawsuit Over Jail Conditions
LAS CRUCES: Faces Suit Over Illegal Debt Collection Practices
LAUNDRY DEPOT: Leong Seeks to Certify Rule 23 Class Action
LAWN ENFORCEMENT: Conditional Status of Collective Action Sought
LAWPRACTICECLE LLC: Bid to Certify Class Tossed as Moot in Goren
LENNAR CORP: Catenac Alleges Breach of Fiduciary Duties Under ERISA
LINCOLN NATIONAL: Amended Scheduling Order Entered in Bharwani Suit
LINCOLN NATIONAL: Amended Scheduling Order Entered in COI Rate Suit
LINCOLN NATIONAL: Amended Scheduling Order Entered in EFG Bank Suit
LLOYD AUSTIN: Military Chaplains Seek Class Certification
LLOYD AUSTIN: Scheduling Order Entered in Alvarado Class Suit
MARATHON OIL: Kunneman, et al., Seek to Certify Settlement Class
MARYGOLD COMPANIES: Seeks Dismissal from Lucas Class Action
MATTERPORT INC: Wins Bid to Strike Stemmelin Bid to Certify Class
MDL 2151: Ye v. Toyota Motor Suit Transferred to C.D. Cal.
MDL 2627: Stein v. LL Flooring Suit Transferred to E.D. Va.
MDL 2846: Montalbano v. Honor Health Suit Transferred to S.D. Ohio
MDL 2873: Court Vacates Transfer Order in Circle K v. Johnson
MDL 2913: Northwest Allen Cty Schools Sues Over E-Cigarette Crisis
MDL 3014: Newsome v. Philips Transferred to W.D. Pa.
MDL 3026: George v. Children's National Transferred to N.D. Ill.
MDL 3044: Court Consolidates 27 Suits in E.D.N.Y.
MDL 3046: Panel Denies Centralization of 3 Actions in D.D.C.
MDL 3048: Panel Denies Centralization of 7 River Rights Suits
MONTANA UNIVERSITY: Cole Loses Class Certification Bid
MOSQUITO SQUAD: Parties Seek to Certify Class in Lenorowitz Suit
MRS. FIELDS: Unlawfully Disclosed Customer Info, Lawsuit Alleges
NATIONAL EDUCATION: Wilford Brings Suit to U.S. Supreme Court
ND PAPER: Faces Suit Over Facility's Offensive Odor Emissions
NEW MEXICO: Valdez Appeals Vaccine Mandate Case Dismissal
NEW YORK, NY: District Court Dismisses E.F. v. Dep't. of Education
PACIFIC NW: Piece-Rate Employees Win Conditional Class Status
PASCHALL TRUCK: Carter Original Bid to Certify Class Nixed as Moot
PHILADELPHIA, PA: To Install Curb Ramps as Settlement in ADA Suit
PRO CUSTOM: Bid to Dismiss and to Arbitrate in Venson Suit Denied
PROGRESSIVE DIRECT: Freeman Files Bid for Class Certification
PROGRESSIVE PALOVERDE: Class Certification Bid Due Feb. 3, 2023
RESOLUTE FOREST: Monteverde Firm Probes Possible Securities Suit
ROYAL SEAS: McCurley Loses Renewed Bid to Certify Class
RUST-OLEUM CORP: Bush File Bid for Class Certification
SCHMITT INDUSTRIES: Bids for Lead Plaintiff Appointment Due Dec. 12
SHOE SHOW: Smith Bid for Class Cert Denied w/o Prejudice
SILVERBACK THERAPEUTICS: Monteverde Firm Probes Securities Suit
SOLARWINDS CORP: NYC District Council File Bid for Class Status
SOULBOUND STUDIOS: Class Action Over Investment Refund Dismissed
SSM HEALTH: Brashear Seeks to Certify Class of Hourly Employees
STERIGENICS US: Scheduling Order Entered in Vallejo Class Suit
SYNCHRONY BANK: Lucas Seeks to Certify Settlement Class
TETHER LTD: Roche Freedman Removed From Manipulation Class Suit
TRI-COUNTY TELEPHONE: Court Dismisses Fraud Class Action Lawsuit
UNILEVER UNITED: Krause-Pettai Seek to Certify Class Action
UNITED HEALTH: Settlement Final Approval Hearing Set Feb. 8, 2023
UNITED STATES: Civil Rights Lawyer Sues on Behalf of Black Farmers
UNITED STATES: Defends Record Amid Lawsuit From Black Farmers
UNITED STATES: XRP Holders Join Class Action Suit Over Huge Losses
VALLEY BROOK, OK: Class Cert Bid Filing Due April 2, 2023
VENETIAN CASINO: Suit Seeks to Certify Rule 23 Class & Subclass
WALGREEN CO: CMP & Scheduling Order Entered in Stevens Suit
WALMART INC: Merck Loses Bid to Seal Settlement Deal Docs
WELLS FARGO: Handelsbanken, et al., Seek to Certify Class Action
WILLIAMS-SONOMA INC: Rushing Suit Seeks Class Certification
WILLOWS INN: Agrees to Settle Wage Theft Class Suit for $1.37-M
[*] 1st Annual Complex Litigation Ethics Conference This Saturday
[*] Housing Rights Initiative Generates Three Fraud Class Suits
[*] N.D. Illinois Enters $228M Judgment in BIPA Class Action
[*] New Wiretapping Class Actions Target U.S. Technology Companies
*********
ACADIA HEALTHCARE: Stockholders Class Certified in St. Clair Suit
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In the case, ST. CLAIR COUNTY EMPLOYEES' RETIREMENT SYSTEM,
Individually and on Behalf of All Others Similar, Plaintiff v.
ACADIA HEALTHCARE COMPANY, INC., et al., Defendants, Case No.
3:18-cv-00988 (M.D. Tenn.), Judge William L. Campbell of the U.S.
District Court for the Middle District of Tennessee, Nashville
Division, enters a Memorandum:
a. denying the Defendants' Motion for Evidentiary Hearing on
Plaintiffs' Motion for Class Certification;
b. granting the Defendants' Motion for Leave to File a
Sur-Reply;
c. granting the Plaintiffs' Motion for Leave to File a
Sur-Reply; and
d. granting the Motion for Class Certification.
Pursuant to Rule 23(a) and (b)(3) of the Federal Rules of Civil
Procedure, the Plaintiffs seek certification of the following
Class: All persons who purchased or otherwise acquired the common
stock of Acadia Healthcare Company, Inc. (Acadia or the Company)
between April 30, 2014 and Nov. 15, 2018, inclusive (the Class
Period).
The Plaintiffs also request that the Court appoint the Plaintiffs
as the Class Representatives and appoint the law firm of Robbins
Geller Rudman & Dowd LLP as the Class Counsel.
To certify a class, the Court must be satisfied that the
requirements of Federal Rule of Civil Procedure 23(a) and at least
one of Rule 23(b)'s provisions are met.
Rule 23(a) establishes four requirements for class certification:
(1) the class is so numerous that joinder of all members is
impracticable; (2) there are questions of law or fact common to the
class; (3) the claims or defenses of the representative parties are
typical of those of the class; and (4) the representative parties
will fairly and adequately protect the interests of the class.
Rule 23(b), in turn, provides in pertinent part that when the
requirements of Rule 23(a) are met a class action may be maintained
if "the court finds that the questions of law or fact common to
class members predominate over any questions affecting only
individual members, and that a class action is superior to other
available methods for fairly and efficiently adjudicating the
controversy."
The party seeking class certification bears the burden of showing
that the requirements for class certification are met. The decision
whether to certify a class is committed to the sound discretion of
the district judge and turns on the particular facts and
circumstances of each individual case. Similarly, the Court has
discretion to conduct an evidentiary hearing on a motion for class
certification.
The Plaintiffs submits that the four requisite elements of Rule
23(a) are readily established.
Judge Campbell agrees. He holds that the Plaintiffs have met the
numerosity requirement by demonstrating that the class is so
numerous "that joinder of all members is impracticable." They have
also shown that there are common questions of law and fact for
purposes of Rule 23(a)(2), including whether the Defendants were
engaged in a scheme to defraud, whether the Defendants
misrepresented or omitted material facts about Acadia's U.S. and
U.K. facilities, whether the alleged scheme, misstatements, or
omissions caused the putative class to suffer damages, whether the
Defendants acted with scienter, and whether Defendants were
"control persons" within the meaning of Section 20(a) of the
Exchange Act.
The Plaintiffs have also met the typicality prerequisite of Rule
23(a)(3). They submit that their claims are typical of the proposed
Class because they arise out of the same alleged course of conduct
-- that the Defendants artificially inflated Acadia's share prices
by engaging in a scheme to defraud and misrepresenting the true
state of its U.S. and U.K. facilities. They assert that they and
the putative Class have suffered from losses from the same course
of conduct and share identical interests in holding the Defendants
accountable and maximizing the recovery of the Class.
As to the adequacy requirement, Judge Campbell holds that the
Plaintiffs have met this prerequisite of Rule 23(a)(4). He says the
interests and incentives of the Plaintiffs are representative and
adequate of the class at large. He agrees that Robbins Geller will
adequately represent the class in this action. Robbins Geller is
experienced in litigating securities class actions and, through
this litigation, has competently briefed the motion to dismiss, and
has provided competent briefing on the present class certification
motion.
The Plaintiffs submit that the action also satisfies Rule
23(b)(3)'s requirements that: (1) common questions of law or fact
predominate over individual questions; and (2) a class action is
superior to alternative methods of resolving the dispute. As noted,
the Defendants disagree only as to the predominance. Judge Campbell
agrees that class action is superior to other available methods of
fairly and efficiently adjudicating the controversy, and finds that
the Plaintiffs satisfy Rule 23(b)(3)'s superiority requirement.
Next, the Plaintiffs contend that the action meets the predominance
requirement of Rule 23(b)(3) because the core elements of their
Sections 10(b) and 20(a) claims are susceptible to common proof.
They argue that the element of reliance can be presumed on a
class-wide basis under Basic Inc. v. Levinson, 485 U.S. 224 (1988)
and Affiliated Ute Citizens of Utah v. U.S., 406 U.S. 128 (1972),
"each of which allows a plaintiff to establish a 'rebuttable
presumption of reliance,' without the need for individual
information about each plaintiff." The Defendants contend that
predominance is not established as to reliance because they have
rebutted the Basic presumption and because Affiliated Ute does not
apply to the Plaintiffs' claims.
Judge Campbell finds that under the Basic and Affiliated Ute
presumptions, for purposes of class certification, reliance will be
presumed as to the Plaintiffs' claims, including the scheme
claims.
With that, the Plaintiffs have carried their burden in establishing
that their proposed class should be certified under Rule 23(a) and
(b)(3) of the Federal Rules of Civil Procedure.
The Defendants' request to shorten the class period is denied.
An appropriate order will enter.
A full-text copy of the Court's Sept. 30, 2022 Memorandum is
available at https://tinyurl.com/2p8vjtpe from Leagle.com.
AMERICAN LANDMARK: Seeks Denial of Diez Class Certification Bid
---------------------------------------------------------------
In the class action lawsuit captioned as LARA DIEZ, individually
and on behalf of all others similarly situated, v. AMERICAN
LANDMARK LLC, Case No. 1:22-cv-20189-KMM (S.D. Fla.), the Defendant
asks the Court to enter an order denying class certification.
The Plaintiff lacks standing to pursue her claims in this action
either individually or on behalf of the putative class. In the
Corrected First Amended Class Action Complaint, the Plaintiff
asserts a single cause of action against Defendant under the
Telephone Consumer Protection Act (TCPA).
Specifically, the Plaintiff alleges receipt of four text messages
about available rentals from an apartment community -- Midtown --
delivered to a cell phone number registered on National Do-Not-Call
Registry (the DNC laim). The Plaintiff does not allege the use of
an autodialer.
Pending before this Court are two motions which demonstrate that
Plaintiff lacks standing to pursue a TCPA claim in this forum. As
set forth in Defendant’s Motion to Compel Arbitration, the
Plaintiff's DNC Claim must be resolved by mandatory arbitration
pursuant to her assent to the Terms of Use for the Website she
visited when she submitted her contact information, including an
optional telephone number, in search of rental apartments available
at Midtown 24.
American Landmark is a national multifamily owner-operator
specializing in multifamily acquisition, repositioning and property
management.
A copy of the Defendant's motion dated Oct. 4, 2022 is available
from PacerMonitor.com at https://bit.ly/3ytn7de at no extra
charge.[CC]
The Plaintiff is represented by:
Manny S. Hiraldo, Esq.
HIRALDO P.A.
401 E. Las Olas Blvd. Suite 1400
Fort Lauderdale, FL 33301
E-mail: mhiraldo@hiraldolaw.com
- and -
Lara Diez, Esq.
Rachel N. Dapeer, Esq.
DAPEER LAW
20900 N.E. 30th Ave., Suite 417
Aventura, FL 33180
E-mail: rachel@dapeer.com
The Defendant is represented by
Garry W. O'Donnell, Esq.
Sherine Marder, Esq.
GREENSPOON MARDER LLP
2255 Glades Road, Suite 400-E
Boca Raton, FL 33431
Telephone: (561) 994-2212
Facsimile: (561) 807-7527
E-mail: garry.odonnell@gmlaw.com
elaine.hill@gmlaw.com
sherine.marder@gmlaw.com
AT&T INC: Deadline to File Claim in Hidden Fees' Suit Set Oct. 29
-----------------------------------------------------------------
Dan Avery at cnet.com reports that are you a current or former AT&T
customer? You might be eligible for part of a $14 million
settlement the carrier agreed to after a class-action lawsuit
alleged it charged subscribers hidden fees for years.
Plaintiffs in Vianu v. AT&T Mobility argue the telecom company
failed to inform postpaid wireless customers they were being
charged a monthly $1.99 administrative fee they say was really a
way to increase the base rate "without having to advertise the
higher prices." (Unlike prepaid subscribers, postpaid customers
are billed based on usage after the fact.)
AT&T denied the allegations. In an email to CNET, the company said
it "clearly and prominently" discloses all fees. The carrier agreed
to the settlement, it added, "to avoid lengthy, expensive
litigation."
Here's what you need to know about the AT&T hidden fee case,
including who's eligible for a payment, when the deadline to file
is, and how much qualified customers could get. Scroll down for
more on how to file a claim.
Want to find out about more class-action settlements? See if you
qualify for payouts from T-Mobile's $350 million data-breach deal
or Roundup weed killer's $45 million settlement.
What is AT&T accused of in the class-action lawsuit?
In the suit, filed in the US District Court for the Northern
District of California, plaintiffs Ian Vianu, Elizabeth Blum and
Dominic Gutierrez allege a monthly administrative fee attached to
each wireless line in May 2013 is really a way for AT&T to increase
its basic rate "without having to advertise the higher prices."
The fee has been regularly raised since then -- it more than
doubled in 2018 to $1.99 a month -- even though AT&T financial
records allegedly show the company's administrative costs have
actually been decreasing.
According to the complaint, mention of the fee is intentionally
buried in bill statements "to [make] it likely customers will not
notice it."
It's also phrased to suggest that it's akin to a tax or regulatory
fee, the suit reads, "when in fact it is simply a way for AT&T to
advertise and promise lower rates than it actually charges."
Calling the practice a "bait-and-switch scheme," the plaintiffs
maintain AT&T has "unfairly and improperly extracted hundreds of
millions of dollars in ill-gotten gains from California
consumers."
Their complaint accuses the carrier of violating several California
statutes regarding unfair, unlawful and fraudulent business
practices, as well as "the implied covenant of good faith and fair
dealing."
Who is eligible for money from the AT&T settlement?
While all postpaid customers were charged the fees, only California
residents are eligible for payment in this case. That's because the
California Consumers Legal Remedies Act protects residents against
"false advertising, fraud, and other unfair business practices."
AT&T customers in California who were charged administrative fees
on their postpaid wireless service plans between June 20, 2015, and
June 16, 2022, can file a claim for a one-time cash payment.
It's not clear how many subscribers AT&T has in California,
although, with more than 80 million postpaid customers across the
country, it is the third-largest mobile carrier in the US.
How much will eligible customers receive in the settlement?
Class members who successfully file a claim will receive an equal
share of the $14 million settlement. According to the settlement
website that's currently estimated to be $20, but the final amount
may be higher or lower depending on the number of claimants, as
well as attorneys' fees.
Current AT&T subscribers would receive their refund via an
automatic credit to their account, while former customers would get
a check mailed to them.
The payments won't be a full reimbursement: According to AT&T
records, the average customer has paid $180 in fees since 2015, The
Verge reported, two years after the practice began.
How do I file a claim for payment from the AT&T settlement?
If you believe you're eligible for a portion of the settlement, you
can submit a claim on this website or print out a physical form to
mail in.
You'll be asked for your name, mailing and email addresses and AT&T
Wireless phone number or account number. Claims must be submitted
by Oct. 29, 2022.
Some class members received emails or postcards notifying them of
the potential settlement with a Notice ID and Confirmation Code. If
you received a notification, include the ID and code provided when
you file. If you didn't receive a postcard or email -- or do not
know where it is -- you can still file without them.
The deadline to opt out of the settlement and retain the right to
pursue your own lawsuit was Sept. 29, 2022.
When will class members receive payment from the AT&T settlement?
Any compensation will be disbursed after the final approval hearing
for the deal, scheduled for Nov. 3. [GN]
ATLAS AIR: Monteverde Firm Probes Possible Securities Violations
----------------------------------------------------------------
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:
Atlas Air Worldwide Holdings, Inc. (Nasdaq: AAWW), relating to its
proposed acquisition by investors led by Apollo Global Management
Inc. Under the terms of the agreement, AAWW shareholders are
expected to receive $102.50 in cash per share they own. Click here
for more information:
https://www.monteverdelaw.com/case/atlas-air-worldwide-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 in 2013 and 2017-2019 as a Rising Star
and in 2022 as a Super Lawyer in Securities Litigation. 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, we have recovered or secured over a dozen 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]
AURORA HEALTH: Settles Wage-and-Hour Class Action for $8.75MM
-------------------------------------------------------------
Top Class Actions reports that Aurora Health Care Inc. agreed to
pay $8.75 million to resolve claims it failed to pay its hourly
workers all overtime and regular wages they were owed.
The settlement benefits individuals who worked as hourly employees
for Aurora Health Care Inc. in Wisconsin between Aug. 14, 2017, and
Dec. 31, 2021.
Aurora Health Care provides medical services to communities in
eastern Wisconsin and northern Illinois. The health-care system
includes 16 hospitals, over 150 clinics and 70 pharmacies.
According to a wage-and-hour class action lawsuit, Aurora Health
Care violates employees' rights by failing to pay them for all the
work they perform. Plaintiffs in the case say they are owed regular
wages and overtime wages that were denied to them as a result of
Aurora Health Care's policies.
These actions allegedly violated the Fair Labor Standards Act
(FLSA) and Wisconsin wage-and-hour statutes requiring payment of
all hours worked by hourly employees. The class action lawsuit
sought back wages and penalties as compensation.
Aurora Health denies any wrongdoing but agreed to a $8.75 million
class action settlement to resolve these allegations.
Under the terms of the settlement, class members will receive a
cash payment based on the number of workweeks they worked during
the Class period. Class members will receive a proportional share
of the net settlement fund based on the number of weeks worked,
meaning that those who worked a larger number of workweeks during
the class period will be eligible for a larger payment than those
who worked only a handful of workweeks during the class period.
Minimum payments under the settlement are $30.
Unclaimed funds from the settlement will not revert back to Aurora
Health. Any unclaimed checks will be voided and will escheat to the
State of Wisconsin as unclaimed property.
This settlement does not resolve similar claims against Aurora in a
pending federal lawsuit under the FLSA. The plaintiff in this case
claims Aurora automatically deducts 30-minute meal periods from
employee work days despite regularly requiring employees to perform
"off the clock" work through their meal periods. According to the
FLSA class action lawsuit, this work should result in overtime pay.
The deadline for objection and exclusion is Oct. 14, 2022.
The final approval hearing for the settlement is scheduled for Nov.
17, 2022.
No claim form is required to benefit from the settlement. Class
members who do not submit an exclusion request will automatically
receive their calculated settlement share.
Who's Eligible
The settlement benefits individuals who worked as hourly employees
for Aurora Health Care Inc. in Wisconsin between Aug. 14, 2017, and
Dec. 31, 2021.
Potential Award
Varies
Proof of Purchase
No proof of purchase applicable
Objection and Exclusion Deadline
10/14/2022
Case Name
Kenyona Eubanks v. Aurora Health Care, Inc., Case No.
2:20-cv-01253-JPS, in the U.S. District Court for the Eastern
District of Wisconsin
Final Hearing
11/17/2022
Settlement Website
AuroraHealthSettlement.com
Claims Administrator
Aurora Health Settlement
P.O. Box 2009
Chanhassen, MN 55317-2009
info@aurorahealthsettlement.com
844-453-1314
Class Counsel
James X. Bormes
Catherine P. Sons
LAW OFFICE OF JAMES X BORMES PC
Thomas M. Ryan
LAW OFFICE OF THOMAS M RYAN PC
Patrick J. Schott
SCHOTT BUBLITZ & ENGEL SC
Defense Counsel
Jeffrey L. Rudd
Julia S. Wolf
JACKSON LEWIS PC
Mitchell W. Quick
MICHAEL BEST & FRIEDRICH LLP [GN]
BARCLAYS PLC: Pomerantz Law Firm Probes Securities Violations
-------------------------------------------------------------
Pomerantz LLP is investigating claims on behalf of investors of
Barclays PLC (""Barclays" or the "Company") (NYSE: BCS). Such
investors are advised to contact Robert S. Willoughby at
newaction@pomlaw.com or 888-476-6529, ext. 7980.
The investigation concerns whether Barclays and certain of its
officers and/or directors have engaged in securities fraud or other
unlawful business practices.
On March 28, 2022, Barclays announced that Barclays Bank PLC
("BBPLC") had issued approximately $15.2 billion in unregistered
securities under an August 2019 shelf registration statement, that
BBPLC would commence a rescission offer for those unregistered
securities, and that Barclays expected the rescission losses to be
approximately GBP450m.
On this news, Barclays' American Depositary Receipt ("ADR") price
fell $0.96 per ADR, or 10.61%, to close at $8.09 per ADR on March
28, 2022.
Then, on July 28, 2022, Barclays issued interim financial results
for the quarter ending June 30, 2022 and announced for the first
time that BBPLC had also over-issued unregistered securities under
a second BBPLC shelf registration statement. The July 28, 2022
financial results announcement also informed investors that
Barclays had provisioned "GBP1,592m [approximately $1.940 billion]
(December 2021: GBP220m) related to the overissuance of structured
notes and GBP165m [approximately $201 million] (December 2021: nil)
related to liabilities that could be incurred arising out of
ongoing discussions in respect of a potential SEC resolution."
On this news, Barclays' ADR price fell $0.41 per ADR, or 5.2%, to
close at $7.48 per ADR on July 28, 2022.
Pomerantz LLP, with offices in New York, Chicago, Los Angeles,
Paris, and Tel Aviv, is acknowledged as one of the premier firms in
the areas of corporate, securities, and antitrust class litigation.
Founded by the late Abraham L. Pomerantz, known as the dean of the
class action bar, Pomerantz pioneered the field of securities class
actions. Today, more than 85 years later, Pomerantz continues in
the tradition he established, fighting for the rights of the
victims of securities fraud, breaches of fiduciary duty, and
corporate misconduct. The Firm has recovered numerous
multimillion-dollar damages awards on behalf of class members. See
www.pomlaw.com.
CONTACT:
Robert S. Willoughby
Pomerantz LLP
rswilloughby@pomlaw.com
888-476-6529 ext. 7980 [GN]
BHP GROUP: Appeal to Exclude Group Members From Australia Dismissed
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natlawreview.com reports that on 12 October 2022, the Australian
High Court dismissed an appeal brought by BHP Group Limited (BHP),
which sought to exclude group members who were not residents in
Australia from a class action.1 The court was unpersuaded by BHP's
arguments and determined that Part IVA of the Federal Court of
Australia Act 1976 (Cth) (FCA) (Part IVA), which governs
representative proceedings, does not contain any limitation on the
geographic or territorial qualifications that must be satisfied in
order to qualify as a group member.
BHP sought to appeal the decision of the Full Court of the Federal
Court of Australia, seeking a determination on the scope and
application of Part IVA. Proceedings were brought against BHP on
behalf of persons who purchased shares in BHP on the Australian
Stock Exchange (ASX), BHP Billiton PLC on the London Stock Exchange
(LSE) and/or BHP PLC on the Johannesburg Stock Exchange (JSE) as a
result of the failure of the Fundao Dam in Brazil in 2015
(Proceedings). The Proceedings are premised on a claim that group
members have suffered loss as a result of BHP's contravention of
its continuous disclosure obligations and engaging in misleading
and deceptive conduct.
The Proceedings remain on foot in the Federal Court. However, the
appeal was brought arising out of an interlocutory application.
BHP argued that Part IVA must be interpreted in a way to not
include group members who are not residents of Australia within a
representative proceeding. If upheld, that argument would have had
the effect of refining the scope of the Proceedings and limiting
potential group members to those who purchased shares in BHP on the
ASX, LSE or JSE and were domiciled in Australia. The High Court
determined that there was no basis within Part IVA to infer
territorial limitations and considered any person who has a claim
(in accordance with the FCA) could be included within a
representative proceeding, irrespective of whether they are a
resident of Australia.
Implications for Key Stakeholders
The decision carries potentially significant ramifications for
litigation funders, class action proponents, and group members
within a class action, both domestically and internationally. It
also has implications for actual or prospective defendants,
directors and officers, auditors and ASX listed entities who have
related parties listed on foreign exchanges such as the LSE.
Development of a potential class of group members has historically
been limited to those who reside in Australia. Limited classes
often cause complications in ensuring the viability of a claim and
the economics of prosecution. Further, the costs associated with
developing a class focused purely on domestic participants are
often prohibitive and can adversely impact claim-size economics.
The clarification on the scope and application of Part IVA of the
FCA opens the door for overseas-based funds and institutional
investors who may have a claim - or fall within a group member
definition - to commence or participate in proceedings, with little
to no downside. The court's decision has the real potential to
significantly improve claim economics from funding and
classproponent perspectives.
Target defendants to representative proceedings, in particular
directors and officers, auditors and ASX listed entities, will
likely bear increased downside risks. With the potential inclusion
of overseas-based group members in proceedings, claims are likely
to become more complex, result in increasing defendant costs, and
may lead to delays in the resolution of interlocutory and final
court processes. In addition, with potentially larger pools of
group members, the likely damages to be paid by unsuccessful
defendants will likely increase, particularly if overseas-based
funds or institutional investors opt in.
On the Horizon
Class action courts will need to adapt to the potential expansion
of classes. Among other elements, they will need to consider, and
resolve, potentially more complex opt-in and opt-out processes,
notification mechanisms across borders - including in non-English
speaking jurisdictions - and more involved settlement approval
processes where the interests of foreign members will need to be
weighed.
Litigation funders and class proponents will naturally welcome the
High Court's decision. Conversely, target defendants (and their
insurers) will be concerned. The reality is, even before today's
decision, litigation funding has been on the rise following the
abandonment of the previous government's regulatory reforms. The
High Court's decision has the potential to see representative
proceedings in Australia increase and expand to include more
foreign participants. In fact, it would not be surprising if some
claims were recalibrated to specifically include institutional
participants based offshore, particularly from Hong Kong, Singapore
and the US.
FOOTNOTES
1 BHP Group Limited v Impiombato & Anor [2022] HCA 33 [GN]
BLOCK INC: Bids for Lead Plaintiff Appointment Due December 12
--------------------------------------------------------------
Bragar Eagel & Squire, P.C., a nationally recognized stockholder
rights law firm, announces that a class action lawsuit has been
filed against Block, Inc. ("Block" or the "Company") (NYSE: SQ) in
the United States District Court for the Southern District of New
York on behalf of all persons and entities who purchased or
otherwise acquired Block securities between November 4, 2021 and
April 4, 2022, both dates inclusive (the "Class Period"). Investors
have until December 12, 2022 to apply to the Court to be appointed
as lead plaintiff in the lawsuit.
Block, formerly known as Square, Inc., is a technology company that
creates financial service tools. Block's segments include Square,
which offers financial tools for sellers, and Cash App, which
provides financial tools for individuals.
On April 4, 2022, Block announced that a former employee had
improperly downloaded certain reports of Block's subsidiary, Cash
App Investing, on December 10, 2021. The information in the reports
included full customer names and brokerage account numbers, as well
as portfolio value, brokerage portfolio holdings, and/or stock
trading activity. As many as 8.2 million Cash App Investing
customers were affected. Prior to April 4, 2022, Block had not
disclosed this information to shareholders.
On this news, Block's stock price fell by more than 6%, damaging
investors.
The Block class action lawsuit alleges that defendants throughout
the Class Period failed to disclose that: (i) Block lacked adequate
protocols restricting access to customer sensitive information;
(ii) as a result, a former employee was able to download certain
reports of Block's subsidiary, Cash App investing, containing full
customer names and brokerage account numbers, as well as brokerage
portfolio value, brokerage portfolio holdings, and/or stock trading
activity; and (iii) consequently, Block was reasonably likely to
suffer significant damage including reputational harm.
If you purchased or otherwise acquired Block shares and suffered a
loss, are a long-term stockholder, have information, would like to
learn more about these claims, or have any questions concerning
this announcement or your rights or interests with respect to these
matters, please contact Brandon Walker or Melissa Fortunato by
email at investigations@bespc.com, telephone at (212) 355-4648, or
by filling out this contact form. There is no cost or obligation to
you.
About Bragar Eagel
Bragar Eagel & Squire, P.C. is a nationally recognized law firm
with offices in New York, California, and South Carolina. The firm
represents individual and institutional investors in commercial,
securities, derivative, and other complex litigation in state and
federal courts across the country. For more information about the
firm, please visit www.bespc.com. Attorney advertising. Prior
results do not guarantee similar outcomes. [GN]
BOKF NA: Walker Files Writ of Certiorari with Supreme Court
-----------------------------------------------------------
BERKLEY V. WALKER filed on September 16, 2022, a petition for writ
of certiorari -- assigned Case No. 22-262 -- asking the U.S.
Supreme Court to review the judgment of the United States Court of
Appeals for the Tenth Circuit in the case captioned as Berkley V.
Walker, Petitioner vs. BOKF, National Association, dba Bank of
Albuquerque, N.A., Case No. 20-2046.
As previously reported in the Class Action Reporter, the Plaintiff,
individually and on behalf of all others similarly situated,
brought a class action suit against the Defendants captioned
Berkley V. Walker, Plaintiff, v. BOKF, National Association d/b/a
Bank of Albuquerque, N.A., Defendant, Case No.
1:18-cv-00810-SCY-JHR, in the U.S. District Court for the District
of New Mexico. The Plaintiff seeks to recover damages and other
relief from BOKF for its usurious assessment and collection of
interest charged on overdrawn bank accounts in the form of
"Extended Overdraft Fees" in violation of the National Bank Act.
On September 20, 2018, the Defendant filed a motion to dismiss the
case, which the Court granted through an Order entered by Judge
Judith C. Herrera on July 15, 2019.
On August 12, 2019, the Plaintiff filed a motion for
reconsideration, which the Court denied on March 20, 2020.
On April 16, 2020, the Plaintiff appealed the district court's
ruling to the Tenth Circuit.
The Tenth Circuit affirmed the district court's order dismissing
the putative class action lawsuit.
The Tenth Circuit noted that the First Circuit in Fawcett v.
Citizens Bank, N.A., 919 F.3d 133, 136 (1st Cir. 2019), addressed
the same legal question of whether extended overdraft fees
constituted interest under Section 85 and the Fifth Circuit in
Johnson v. BOKF, N.A., 341 F.Supp.3d 675, 681 (N.D. Tex. 2018),
addressed not only the same legal question but many of the same
facts. Echoing Fawcett and Johnson, the Tenth Circuit determined
that Section 7.4001(a) and Section 7.4002 are ambiguous regarding
how it should categorize extended overdraft fees, and it therefore
defers to the Office of the Comptroller of the Currency's ("OCC")
interpretation in Interpretive Letter 1082 that extended overdraft
fees are not "interest" within the meaning of the NBA.
The Tenth Circuit concluded that Auer deference to Interpretive
Letter 1082 is appropriate. Interpretive Letter 1082 represents
OCC's reasonable interpretation of genuinely ambiguous regulations,
and OCC's determination that fees like BOKF's Extended Overdraft
Fees are "non-interest charges" is neither plainly erroneous nor
inconsistent with the regulations it interprets. As "non-interest
charges" under Section 7.4002, BOKF's Extended Overdraft Fees are
not subject to the NBA's usury limits, and Walker fails to state a
claim. The district court also did not abuse its discretion in
denying Walker's motion for reconsideration, it added. [BN]
Plaintiff-Petitioner BERKLEY V. WALKER, individually and on behalf
of all others similarly situated, is represented by:
Ryan David Andrews, Esq.
EDELSON PC
350 North Lasalle, Suite 1400
Chicago, IL 60654
Telephone: (312) 589-6370
Facsimile: (312) 589-6378
E-mail: randrews@edelson.com
CABELA'S INC: Website Illegally Tracks Florida Consumers' Info
--------------------------------------------------------------
Erin Shaak at classaction.org reports that Cabela's faces a
proposed class action that alleges the outdoor equipment retailer
unlawfully tracks and records the electronic communications of
Cabelas.com visitors through "session replay" software embedded on
the website.
According to the 36-page lawsuit, Cabela's fails to notify or
obtain consent from consumers who visit its website before
recording their interactions with the site, including mouse
movements, clicks, keystrokes, information entered into text
fields, and pages and content viewed. The session replay code used
by Cabela's is more robust than a traditional website cookie or
other analytics tool given that it records in real time each
website visitors' "entire visit" to Cabelas.com, the suit says.
"Defendant's procurement of the Session Replay Providers to
secretly deploy the Session Replay Code results is the electronic
equivalent of 'looking over the shoulder' of each visitor to the
www.cabelas.com website for the entire duration of their website
interaction."
The case claims Cabela's has violated a Florida privacy law by
intercepting website visitors' online communications without
consent and against their reasonable expectation of privacy.
Although session replay software, which allows a website operator
to essentially record and play back a user's entire session, is
purportedly deployed to identify broken website features and
improve user experience, Cabela's uses the tool for a much broader
purpose, the case claims. According to the suit, the extent of
consumer data collected by Cabela's "far exceeds" website visitors'
expectations and allows the retailer to assemble detailed profiles
of each person who visits its site.
Per the case, Cabela's uses the collected information "for its own
financial gain" in that the data allows the retailer to learn
consumers' preferences and market its goods and services to them.
The case says consumers "reasonably believed" upon visiting
Cabelas.com that they were interacting with the site privately and
not being "watched and recorded," especially since the defendant
provided no warning that it was using session replay software to
track their interactions with the site.
According to the case, Cabela's use of Microsoft's Clarity session
replay code and similar technology is an illegal wiretap in
violation of Florida law.
The suit looks to represent anyone in Florida who visited
Cabelas.com and whose website communications were watched and
captured in the state without their consent through the use of
session replay code embedded in the defendant's website. [GN]
CANADA: Lawyer Seeks Certification in Missing Indigenous Women Suit
-------------------------------------------------------------------
Kathleen Martens at aptnnews.ca reports that as Manitoba recorded
another killing of an Indigenous woman, a Saskatchewan lawyer said
his national class-action lawsuit could help stem the violence.
Tony Merchant is fighting to certify a class-action on behalf of
family and community members of some missing and murdered
Indigenous women and girls (MMIWG).
If approved, the class-action would force the federal government to
act on recommendations from the National Inquiry into Missing and
Murdered Indigenous Women and Girls instead of leaving the country
waiting for action, he said.
"It would order the government to do it - not have them talk about
ways to protect missing and murdered but never seem to do them."
Merchant originally filed the claim in 2018.
It alleges the federal government and its national police force -
the RCMP - failed to properly investigate and prosecute cases
involving MMIWG as well as members of the 2SLGBTQQIA community.
The claim lists 43 victims whose disappearances and deaths occurred
in Canada between 1968 and 2016. It would seek "monetary damages"
for their families and community members.
Merchant first argued the motion in September 2020.
His attempt was quashed by Federal Court Justice Glennys McVeigh in
June 2021.
The issues "span far more issues than the common issues," McVeigh
wrote in her decision.
"This is an overly broad claim that when the Pleading(s) were
reviewed had no material facts to support a rational connection to
the arguments made."
Notice of appeal
Merchant filed a notice of appeal and is expected back in a Regina
courtroom to argue it on Oct. 24.
"We've had hundreds and hundreds of people contact us," he said in
a telephone interview. "In part, we're trying to get compensation
for those families. I view that to be very important.
"But I also view getting action out of the government to be an
important part of what we are doing."
Taking race- and gender-based violence to civil court in this way
is unique, added Merchant.
"Oftentimes, a class action is just about money. . . .this is far
beyond money. It impacts families and (their) happiness, and (the
loss) just goes on hurting."
Members of the class
Merchant said some members of the class haven't received an update
on their loved one from police for years, while others blame police
for failing to respond quickly in the early days of the reported
disappearances.
The RCMP apologized during the inquiry for their failings when it
came to MMIWG cases.
The inquiry, which ran between 2016 and 2018, was unable to tally
the number of MMIWG in Canada due to lack of reporting, poor
record-keeping and inconsistent data over the years.
While some advocates put the figure at more than 4,000 between 1980
and 2012, the RCMP estimate the number at 1,200.
Yet the figure keeps growing.
Seven Indigenous women
Winnipeg, with the highest urban Indigenous population in Canada,
has seen seven Indigenous women die under suspicious circumstances
in 2022 alone.
Outside Winnipeg, Manitoba RCMP said four Indigenous women have
been killed this year, including Geraldine Miranda Chubb, 33, whose
suspected homicide was announced.
Chubb, of Bunibonibee Cree Nation, was found dead in an apartment
in Thompson, Man., where police said a 25-year-old man was taken
into custody. No charges have yet been laid.
"In Manitoba, the amount of women and girls who have been taken
though violence - it's too many," said Heidi Spence, director of
the MMIWG Liaison Unit at Manitoba Keewatinowi Okimakanak.
"It's too many - and as a community we can't allow this to be
normalized. The numbers are so high and it keeps happening."
After proclaiming the epidemic of violence a genocide, the inquiry
concluded "persistent and deliberate human and Indigenous rights
violations and abuses were the root cause behind Canada's
staggering rates of violence against Indigenous women, girls and
2SLGBTQQIA people."
It called for "transformative legal and social changes to resolve
the crisis that has devastated Indigenous communities across the
country."
But only a fraction of its 231 recommendations or calls to justice
have been implemented. And the Trudeau government, which initiated
and funded the inquiry, has announced millions of dollars for
programs but not a national action plan.[GN]
CELLCO PARTNERSHIP: Adell Appeals Arbitration Award to Supreme Ct.
------------------------------------------------------------------
LORRAINE ADELL filed on September 14, 2022, a petition for writ of
certiorari -- assigned Case No. 22-257 -- asking the U.S. Supreme
Court to review the judgment of the United States Court of Appeals
for the Sixth Circuit in the case captioned Lorraine Adell,
Petitioner vs. Cellco Partnership, dba Verizon Wireless, Case No.
21-3570.
On March 19, 2018, the Plaintiff filed her Class Action Complaint.
She asserted a Breach of Contract Claim on behalf of a class of
Verizon Wireless customers, seeking damages arising from the
Defendant's practices in connection with the imposition of an
"administrative charge." The Plaintiff also asserted a claim for
Declaratory Relief on behalf of all Verizon Wireless telephone
customers. She contended that the waiver of an Article III
adjudication of her class-wide Breach of Contract Claim against
Defendant is not "voluntary" because of the inability to refuse
Federal Arbitration Association ("FAA") arbitration and still
receive the Verizon equipment and services. She also argued that
the arbitration provision in the wireless phone agreement is not
enforceable because of the "inherent conflict" between arbitration
under the FAA and the express purposes of the Class Action Fairness
Act of 2005 ("CAFA").
The Defendant filed a Motion to Compel Arbitration and to Stay
Proceedings and the Plaintiff moved for Partial Summary Judgment on
her individual Declaratory Judgment claims.
On March 5, 2019, the Court issued an Opinion and Order holding
that: (1) the Plaintiff's consent to arbitrate disputes pursuant to
the Verizon Customer Agreement was knowing and voluntary; (2) to
allow the Plaintiff to refuse to arbitrate disputes on an
individual basis but still retain the Verizon equipment and
services would necessarily deprive the Defendant of its rights and
force Defendant to accept contractual terms without its voluntary
consent; and (3) the arbitration provision is enforceable because
if Congress had wanted to override the FAA and ban arbitration
class action waivers, it could have done so manifestly and
expressly in the CAFA statute. Accordingly, the Court granted the
Motion to Compel Arbitration and Stay Proceedings and denied the
Plaintiff's Motion for Partial Summary Judgment.
On October 16, 2020, the Plaintiff filed a motion to vacate a July
22, 2020 Arbitration Award entered in the case. In response, the
Defendant filed an alternative request to confirm the Arbitration
Award.
On May 24, 2021, the Court denied the Plaintiff's motion to vacate
July 22, 2020 Arbitration Award and granted the Defendant's
alternative request to confirm the Arbitration Award through an
Order entered by Judge Christopher A. Boyko.
On June 22, 2021, the Plaintiff appealed the district court's
ruling to the Sixth Circuit.
The Sixth Circuit affirmed the district court's March 2019 opinion
and order compelling arbitration and the opinion and order denying
the Plaintiff's motion to vacate the arbitration award. According
to the Sixth Circuit Panel, "Adell has not pointed to evidence that
could overcome the high barrier for displacement of the FAA, and no
other argument she makes in support of her reading requires a
different outcome. CAFA undoubtedly discusses class actions, but it
neither mentions arbitration nor offers the "clear and manifest
congressional intention" signaling FAA displacement. Ultimately,
the jurisdictional changes wrought through CAFA do not show an
obvious conflict with the FAA that would make Adell's arbitration
agreement with Verizon unenforceable. The Court can, and the
district court did, give effect to both. The district court had
jurisdiction over Adell's case through CAFA and exercised that
jurisdiction when compelling arbitration and enforcing the
arbitration award." [BN]
Plaintiff-Petitioner LORRAINE ADELL, individually and on behalf of
all others similarly situated, is represented by:
William Robert Weinstein, Esq.
LAW OFFICES OF WILLIAM R. WEINSTEIN
199 Main Street, 4th Floor
White Plains, NY 10601
Telephone: (914) 997-2205
E-mail: wrw@wweinsteinlaw.com
CHARTER COMMUNICATIONS: Appeals Arbitration Bid Denial to 9th Cir.
------------------------------------------------------------------
CHARTER COMMUNICATIONS, LLC is taking an appeal from a court order
denying its motion to compel arbitration in the lawsuit entitled
Lionel Harper, et al., individually and on behalf of others
similarly situated, Plaintiffs, v. Charter Communications, LLC,
Defendant, Case No. 2:19-cv-00902-WBS-DMC, in the U.S. District
Court for the Eastern District of California.
The Plaintiffs brought this putative class action against the
Defendant alleging various violations of the California Labor
Code's Private Attorney General Act ("PAGA") and California's
Business and Professions Code.
The Court previously ruled on a motion by Charter to compel
arbitration of all claims brought by the Plaintiffs, except for
Harper's PAGA claims, deciding the motion in Charter's favor. It
subsequently stayed the action in its entirety, in part because of
a case that was then pending before the U.S. Supreme Court, Viking
River Cruises, Inc. v. Moriana, 142 S.Ct. 1906, 1914 (2022), which
had the potential to impact the PAGA claims in this action.
On August 2, 2022, the Defendant filed a motion to compel Harper to
arbitrate his "individual" PAGA claims, as distinct from his
"representative" PAGA claims, which the Court denied through an
Order entered by Judge William B. Shubb on September 7, 2022.
The question before the Court was whether the Solution Channel
Agreement provides for the splitting of PAGA claims into
"individual" and "non-individual" claims, as discussed in Viking
River Cruises, such that the individual PAGA claims may be
compelled to arbitration and the non-individual claims dismissed.
Judge Shubb held that the Solution Channel Agreement includes a
similar waiver of representative claims, although it does not
reference PAGA by name. Like the arbitration agreement in Viking
River Cruises, it also contains a severability clause. The Solution
Channel Agreement's waiver of representative actions, like the
"representative PAGA" action waiver in the arbitration agreement in
Viking River Cruises, is ambiguous as to the meaning of
"representative" as it applies to PAGA actions.
Accordingly, Judge Shubb concluded that the Solution Channel
Agreement does not bar any portion of Harper's PAGA claims or
require arbitration thereof. Charter's motion to compel arbitration
of Harper's PAGA claims is, therefore, denied.
The appellate case is captioned as Lionel Harper, et al. v. Charter
Communications, LLC, Case No. 22-16429, in the United States Court
of Appeals for the Ninth Circuit, filed on September 20, 2022.
The briefing schedule in the Appellate Case states that:
-- Appellant Charter Communications, LLC Mediation Questionnaire
was due on September 27, 2022;
-- Transcript is due on November 18, 2022;
-- Appellant Charter Communications, LLC opening brief is due on
December 29, 2022;
-- Appellees Pedro Abascal, Lionel Harper, Daniel Sinclair,
Hassan Turner and Luis Vazquez answering brief is due on January
30, 2023; and
-- Appellant's optional reply brief is due 21 days after service
of the answering brief. [BN]
Plaintiffs-Appellees LIONEL HARPER, et al., individually and on
behalf of all others similarly situated, are represented by:
Jamin S. Soderstrom, Esq.
SODERSTROM LAW PC
1 Park Plaza, Suite 600
Irvine, CA 92614
Telephone: (949) 667-4700
Defendant-Appellant CHARTER COMMUNICATIONS, LLC is represented by:
Joseph Scott Carr, Esq.
KABAT CHAPMAN & OZMER LLP
515 S. Flower Street, 36th Floor
Los Angeles, CA 90071
Telephone: (404) 213-3987
- and -
Joseph W. Ozmer, II, Esq.
KABAT CHAPMAN & OZMER LLP
171 17th Street NW, Suite 1550
Atlanta, GA 30363
Telephone: (470) 447-0603
CHILD DEVELOPMENT: Gambill Files Suit Over Discriminatory Practices
-------------------------------------------------------------------
DEBORAH GAMBILL, SUPRENA HAWKINS, NENA HUDSON-ESTRELLA, ROYAL
JOHNSON, VERONICA MCCALLUM, DEASIA MOORE, MILTON ORTIZ, MARTHA
TATE, AND GARRY WILLIAMS, Plaintiffs v. Child Development Centers,
Inc., Defendant, Case No. 1:22-cv-00286-SPB (W.D. Pa., Oct. 5,
2022) is a class action against the Defendant for violations of the
Title VII of the Civil Rights Act of 1964.
The Plaintiffs are initiating this action to address Defendant's
deliberate misstatements and the concealment of evidence which
demonstrate that the company's application of facially neutral
policies during the COVID-19 pandemic had the effect of
"whitewashing" the racial composition of its workforce. Indeed, as
of April 8, 2020, Defendant received at least $662,500 in pandemic
relief funds while business operations were interrupted due to
mandated quarantine and alleged decreased enrollment. Thereafter,
the Defendant utilized these circumstances to terminate the vast
majority of its minority employees, including Plaintiffs, and
replaced them with white employees. The Defendant continues to
represent that the termination of any employees following the onset
of the COVID-19 pandemic was based on legitimate and
nondiscriminatory business reasons, says the suit.
The Plaintiffs are seeking to hold Defendant accountable for its
actions which have disproportionately impacted the company's
non-white employees for years.
Child Development Centers, Inc. is a private, non-profit
organization that provides child care and early childhood
education.[BN]
The Plaintiffs are represented by:
Joshua P. Ward, Esq.
Sammy Y. Sugiura, Esq.
J.P. WARD & ASSOCIATES, LLC
201 South Highland Ave Suite 201
Pittsburgh, PA 15206
Telephone: (412) 545-3016
Facsimile: (412) 540-3399
E-mail: jward@jpward.com
sammys@jpward.com
CO-OPTIONS INC: Court Denies Bids to Dismiss Urgent One TCPA Suit
-----------------------------------------------------------------
In the case, URGENT ONE MEDICAL CARE, PC, doing business as DAVID
E. SIMAI PEDIATRICS, individually and on behalf of the class
defined herein, Plaintiff v. CO-OPTIONS, INC., doing business as
THE SAMPLING STORE; KRAFT HEINZ FOODS COMPANY; and KRAFT FOOD
BRANDS LLC, Defendants, Case No. 21-CV-4180 (JS) (SIL) (E.D.N.Y.),
Judge Joanna Seybert of the U.S. District Court for the Eastern
District of New York denies the Dismissal Motions filed by
Defendants Co-Options, Kraft Heinz Foods Co., and Kraft Foods Group
Brands LLC.
Urgent One, individually and on behalf of all others similarly
situated, commenced this junk-fax advertising action, pursuant to
the Telephone Consumer Protection Act ("TCPA"), 47 U.S.C. Section
227, against Defendants Co-Options and the Kraft Defendants.
Because the Plaintiff contends the Faxes violate the TCPA's express
prohibition on unsolicited fax advertising, Dr. David Simai, as
Urgent One's owner, initiated this putative class action on July
26, 2021. More particularly, he alleged the "Plaintiff and each
class member suffered damages as a result of receipt of the
unsolicited faxes, in the form of time, paper and ink or toner
consumed as a result. Furthermore, the Plaintiff's statutory right
of privacy was invaded."
The Plaintiff brought his TCPA claim: on behalf of a class,
consisting of (a) all persons (b) who, on or after a date four
years prior to the filing of this action (28 U.S.C. Section 1658),
(c) were sent faxes by or on behalf of Defendant Co-Options Inc.,
(d) promoting commercially available goods or services (d) where
the Defendants do not have evidence of consent or an established
business relationship prior to the sending of the faxes. The
Plaintiff also defines a subclass, consisting of class members sent
a fax on behalf of the Kraft Defendants.
After timely amending the Complaint solely to "substitute Urgent
One as Plaintiff in place of Dr. Simai," Co-Options and the Kraft
Defendants each moved to dismiss the Plaintiff's First Amended
Complaint ("FAC") or, alternatively, to strike the class
allegations; the Plaintiff opposed the Dismissal Motions. On April
7, 2022, the Court referred the fully-briefed Dismissal Motions to
Magistrate Judge Locke.
On June 1, 2022, the Magistrate Judge issued his R&R, recommending:
(1) disregarding the declarations of four putative class members
submitted by the Defendants; (2) rejecting the Defendants' Rule
12(b)(1) arguments regarding lack of standing since "Urgent One
specifically alleges that it, and each class member suffered a
'concrete injury' in the form of 'time, paper and ink or toner
consumed as a result' of receiving the Faxes"; (3) rejecting the
Defendants' Rule 12(b)(6) arguments, which rely heavily upon a
not-yet-final declaratory ruling issued by the Federal
Communication Commission's Consumer & Governmental Affairs Bureau,
known as the "AmeriFactors Ruling," since "the Second Circuit has
not yet addressed the AmeriFactors Ruling" and the AmeriFactors
Ruling is inconsistent with binding Second Circuit precedent, i.e.,
Gorss Motels, Inc. v. Lands' End, Inc., 997 F.3d 470 (2d Cir.
2021); and (4) rejecting the Defendants' Rule 12 (f) arguments
finding they "have failed to carry their burden on their motions to
strike" in light of the Plaintiff having "established the existence
of legal and factual issues which, if permitted to be borne out by
the discovery process, might allow the Class Claim to succeed" and,
alternatively, finding the Defendants "have failed to demonstrate
that the Class Claim definition would include members who lack
Article III standing." In sum, Magistrate Judge Locke recommends
the Court denies the Defendants' Dismissal Motions in their
entireties.
Co-Options first contends that the Magistrate Judge erred by
misallocating the burden of proof regarding jurisdiction from the
Plaintiff to the Defendants and improperly concluding "that
Co-Options has failed to prove a lack of jurisdiction." In a
similar vein, relying upon the receipt-of-Faxes-by-email
distinction, it argues the R&R errs by not addressing whether
putative class members have suffered an injury sufficient to
trigger Article III standing, since receipt of faxes by email does
not entail the waste of paper and ink or the occupation of fax
machines and fax lines.
Relatedly, Co-Options would have the Court finds error in the
Report's failure to consider whether businesses have privacy
interests to assert as a basis for Article III standing. It further
alleges error in the Report on the basis that it "failed to
consider Denney v. Deutsche Bank, AG, 443 F.3d 253 (2d Cir. 2006),
in its jurisdictional analysis," arguing it "is central to the
question of whether the Court has subject jurisdiction over the
putative class claim in this case."
Regarding its Rule 12(b)(6) motion to dismiss, i.e., that putative
class members who receive faxes as emails do not have TCPA claims
to assert, Co-Options asserts the Magistrate Judge erred in
concluding the AmeriFactors Ruling is not binding on this Court.
Finally, it contends the R&R is erroneous because it ignores an
overly broad class "that reaches four years of business conduct
completely unrelated to the facts the Plaintiff alleged regarding
the Defendants' July 2020 'Creative Roots' ad campaign.'"
As a preliminary matter, the Kraft Defendants assert that it was
error for Magistrate Judge Locke to refuse to consider the
Declarations in determining that the Plaintiff has plausibly
alleged the suffering of a concrete injury by each putative class
member. As to their Rule 12(b)(1) Motion seeking dismissal for lack
of standing, they would similarly fault the Magistrate Judge for
not considering their proffered 2017 International Data Corp.
Survey in the context of their Rule 12(b)(1) motion as "authority"
that businesses are transitioning from phone-line faxes to
digital-based fax services and (again, implicitly,) therefore, that
the Plaintiff cannot show the purported class members have suffered
any concrete injury warranting a showing of Article III standing.
As to their Rule 12(b)(6) Motion, the Kraft Defendants content
Magistrate Judge Locke erred in relying upon the Second Circuit's
Gorss decision and not the AmeriFactors Ruling. As to their Rule
12(f) Motion to Strike, they assert that the R&R "largely ignores"
their arguments that: (1) "the class should not include those who
received the Faxes through online fax services"; (2) "the alleged
class definition encompasses a class broader than the facts
pleaded" in the FAC; and (3) the Plaintiff "improperly alleges a
'fail-safe' class." Finally, they claim the R&R incorrectly asserts
that certain factual issues have been conceded when no such
concessions have been made.
As an initial matter, the Plaintiff asserts that in raising
objections to the R&R, the "Defendants largely restate the
arguments previously presented," thereby implying that the
appropriate standard of review is clear error. As to the
Defendants' Rule 12(b)(6) Dismissal Motions, he would have the
Court overrules the Defendants' objections to the Magistrate
Judge's rejection of the AmeriFactors Ruling, highlighting that the
"R&R makes a considered and in depth analysis of the AmeriFactors
Ruling -- which is currently on appeal and pending review by the
full FCC," and "explains in detail how a review of binding
precedent in fact weighs against adherence to the AmeriFactors
decision."
As to the Defendants' motion to strike the class allegations,
unsurprisingly, the Plaintiffs maintain the Report got it right;
Defendants have failed to carry their burden and the "Plaintiff has
established the existence of legal and factual issues which, if
permitted to be borne out by the discovery process, might allow the
Class Claim to succeed."
As a preliminary matter, Judge Seybert has reviewed the underlying
Dismissal Motions and agrees with the Plaintiff's contention that
the Defendants' Objections are largely reiterations of the
arguments they advanced in support of those Dismissal Motions.
Hence, she reviews the R&R for clear error.
To the extent the Defendants argue it was erroneous for the
Magistrate Judge not to consider Co-Options' proffered Declarations
in ruling on the Dismissal Motions, Judge Seybert overrules all
objections on that basis. Indeed, by averring to having "agreed to
receive fax offers like this one from the Sampling Store," each
declarant also establishes exclusion from the proposed class. In
turn, any distinction regarding the method of receipt of those
faxes has no relevance.
To the extent the Defendants would assign error to the Report
because, in ruling on their Dismissal Motions, the Magistrate Judge
would not consider other proffered evidence regarding the receipt
of faxes via emails and/or cloud servers, e.g., the 2017 Survey,
those objections are also overruled. Judge Seybert says at this
nascent stage of the case, such proffered evidence is immaterial
because it does not contradict plausible allegations that are
themselves sufficient to show standing. Based upon his plausible
allegations, the Plaintiff has stated an injury in fact, which is:
(1) concrete, particularized, and actual; (2) fairly traceable to
the Defendants' challenged actions; and (3) likely to be redressed
by a favorable decision, thereby establishing standing.
To the extent Defendants object to the Magistrate Judge's
recommendation that the Defendants' Rule 12(b)(6) Dismissal Motions
be denied based upon his refusal to apply the AmeriFactors Ruling,
those objections are overruled. As the Report correctly observes,
the Second Circuit has not specifically addressed the AmeriFactors
Ruling, which is currently on appeal and pending review by the full
FCC.
To the extent the Defendants rely upon Denney v. Deutsche Bank AG,
443 F.3d 253 (2d Cir. 2006), in their alternative bid to strike the
class allegations, and assert the Magistrate Judge erred by
disregarding same, Judge Seybert overrules that objection. She
holds that Denney was decided in the context of a fairness hearing
on a final class action settlement, which included certifying the
class, and not on a motion to dismiss before discovery and before
any motion for class certification has been made. There is relevant
significance in these different procedural postures. For now, the
"Plaintiff has established the existence of legal and factual
issues which, if permitted to be borne out by the discovery
process, might allow the Class Claim to succeed." Therefore, the
Defendants are unable to meet their burden in moving to strike.
To the extent not specifically addressed, Judge Seybert has
considered the Defendants remaining objections, but finds them
unpersuasive. Rather, finding no clear error in Magistrate Judge
Locke's thorough and well-reasoned Report, she overrules all of the
Defendants' objections.
Accordingly, in the absence of clear error, the Defendants'
Objections are overruled, the R&R is adopted in its entirety, and
Defendant Co-Options' Dismissal Motion and the Kraft Defendants'
Dismissal Motion are each denied in their entirety.
A full-text copy of the Court's Sept. 30, 2022 Adoption Order is
available at https://tinyurl.com/ms9ywbna from Leagle.com.
Adam J. Fishbein, Esq. -- fishbeinadamj@gmail.com -- ADAM J.
FISHBEIN, P.C., Woodmere, New York.
Daniel A. Edelman, Esq., Dulijaza (Julie) Clark, Esq., EDELMAN,
COMBS, LATTURNER & GOODWIN, LLC Chicago, Illinois, for Plaintiff.
Stephen R. Markman, Esq. -- stephen@markmanlaw.com -- LAW OFFICES
OF STEPEHN R. MARKMAN, New York, New York
C. Sanders McNew, Esq. -- mcnew@mcnew.net -- McNEW P.A., Boca
Raton, Florida, for Defendant Co-Options.
Tara Pehush, Esq. -- tara.pehush@klgates.com -- Justin Roeber,
Esq., David R. Osipovich, Esq. -- david.osipovich@klgates.com --
K&L GATES LLP New York, New York.
Molly K. McGinley, Esq. -- mmcginley@honigman.com -- HONIGMAN LLP
Chicago, Illinois, for the Kraft Defendants.
CORNELL UNIVERSITY: Faber, Rahman File Class Certification Bid
--------------------------------------------------------------
In the class action lawsuit captioned as ALEC FABER, individually
and on behalf of all others similarly situated; and AHNAF RAHMAN,
individually and on behalf of others similarly situated, v. Cornell
University, Case No. 3:20-cv-00467-MAD-ML (N.D.N.Y.), the
Plaintiffs ask the Court to enter an order granting their motion
for class certification and appointment of class representatives
and counsel.
The Plaintiffs contend that their move for class certification is
based on the requirements of Federal Rules of Civil Procedure
23(a), as well as pursuant to Rule 23(b)(2) and (3) and (c)(4), for
a class defined as:
"All students who enrolled at Cornell University and paid a
Student Health Fee and/or Student Activity Fee for the Spring
2020 semester."
The Plaintiffs also move to certify each named Plaintiff as class
representative and Plaintiffs' counsel, Poulin | Willey |
Anastopoulo and Lynch Carpenter, LLP, as co-class counsel.
Cornell University is a private research university that provides
an exceptional education for undergraduates and graduate and
professional students.
A copy of the Plaintiffs' motion dated Oct. 3, 2022 is available
from PacerMonitor.com at https://bit.ly/3Ex3XqO at no extra
charge.[CC]
The Plaintiffs are represented by:
(Eddie) Jae K. Kim, Esq.
LYNCH CARPENTER LLP
117 East Colorado Blvd., Suite 600
Pasadena, CA 91105
Telephone: (626) 550-1250
E-mail: ekim@lcllp.com
- and -
Blake G. Abbott, Esq.
Paul J. Doolittle, Esq.
Eric M. Poulin, Esq.
Roy T. Willey, IV, Esq.
POULIN | WILLEY |
ANASTOPOULO, LLC
32 Ann Street Charleston, SC 29403
Telephone: (843) 614-8888
Facsimile: (843) 494-5536
E-mail: eric@akimlawfirm.com
roy@akimlawfirm.com
blake@akimlawfirm.com
pauld@akimlawfirm.com
- and -
John C. Cherundolo, Esq.
CHERUNDOLO LAW FIRM, PLLC
AXA Tower One 15th Floor
100 Madison Street
Syracuse, NY 13202
- and -
Gary F. Lynch, Esq.
Edward W. Ciolko, Esq.
LYNCH CARPENTER LLP
1133 Penn Avenue, 5th Floor
Pittsburgh, PA 15222
Telephone: (412) 322-9243
E-mail: gary@lcllp.com
eciolko@lcllp.com
- and -
Edward Toptani, Esq.
TOPTANI LAW OFFICES
375 Pearl St Ste 1410
New York, NY 10038
Telephone: 212-699-8930
Facsimile: 212-699-8939
E-mail: edward@toptanilaw.com
COWEN INC: Monteverde Firm Probes Possible Securities Violations
----------------------------------------------------------------
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:
Cowen Inc. (Nasdaq: COWN), relating to its proposed acquisition by
TD Bank Group. Under the terms of the merger, COWN shareholders are
expected to receive $39.00 in cash per share they own. Click here
for more information: https://www.monteverdelaw.com/case/cowen-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 in 2013 and 2017-2019 as a Rising Star
and in 2022 as a Super Lawyer in Securities Litigation. 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, we have recovered or secured over a dozen 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]
DENVER SHERIFFS DEPARTMENT: Bid for Class Certification Due Nov. 30
-------------------------------------------------------------------
In the class action lawsuit captioned as Johnson v. Denver Sheriffs
Department, Case No. 1:20-cv-01795 (D. Colo.), the Hon. Judge John
L. Kane entered an order granting joint motion of the Parties to
modify amended stipulated scheduling and discovery order in
connection with deadlines for class discovery and motion for class
certification:
-- The Amended Stipulated Scheduling and Discovery Order is
amended again to reflect: Discovery Cutoff, Class Phase,
is extended to November 15, 2022;
-- The Deadline for 30(b)(6) Deposition of Defendant Denver
for purposes of Class Discovery is November 15, 2022;
-- Motion for Class Certification is due on or before
November 30, 2022;
-- Response to Motion for Class Certification is January 4,
2023;
-- Reply in Support of Class Certification is January 18,
2023.
The nature of suit states Prisoner Petitions -- Habeas Corpus --
Civil Rights.
The Denver Sheriff Department is a criminal justice agency based in
Denver, Colorado, United States. The department is responsible for
the care and custody of inmates within Denver's jail system, for
the city's court services, and other responsibilities assigned by
the executive director of safety.[CC]
DFINITY USA: Seeks Disqualification of Freedman as Lead Plaintiff
-----------------------------------------------------------------
In the class action lawsuit captioned as DANIEL VALENTI,
Individually and on Behalf of All Others Similarly Situated, v.
DFINITY USA RESEARCH LLC, DFINITY FOUNDATION and DOMINIC WILLIAMS,
Case No. 3:21-cv-06118-JD (N.D. Cal.), the Defendants ask the Court
to enter an order that Roche Freedman be disqualified from
representing Lead Plaintiff and the putative class in this Action.
The Defendants contend that Mr. Roche details his misuse of the
legal system to advance the commercial interests of Ava Labs, a
cryptocurrency client in which he owns substantial equity. Mr.
Roche boasts that he uses litigation as a tool for competition"
by:
(1) filing lawsuits against Ava Labs' competitors on behalf
of purported classes he refers to as "10,000 idiots,"
(2) obtaining confidential information by "su[ing] half the
companies in this space" in order to "seethe insides" of
other blockchain companies to advise Ava Labs,
(3) "making sure the SEC and the CFTC have other magnets to
go after" to deflect attention from Ava Labs, and
(4) enforcing the personal vendettas of Ava Labs' CEO.
DFINITY Foundation is a not-for-profit organisation developing the
Internet Computer. The Internet Computer is a public blockchain
platform which is based on a network of sub-blockchains governed by
an ownerless master blockchain.
A copy of the Defendants' motion dated Oct. 4, 2022 is available
from PacerMonitor.com at https://bit.ly/3EzL9qW at no extra
charge.[CC]
The Defendants are represented by
Antony L. Ryan, Esq.
Kevin J. Orsini, Esq.
Lauren M. Rosenberg, Esq.
CRAVATH, SWAINE & MOORE LLP
Worldwide Plaza
825 Eighth Avenue
New York, New York 10019
Telephone: (212) 474-1000
Facsimile: (212) 474-3700
E-mail: aryan@cravath.com
korsini@cravath.com
lrosenberg@cravath.com
- and -
Michael E. Liftik, Esq.
Emily C. Kapur, Esq.
QUINN EMANUEL URQUHART & SULLIVAN LLP
1300 I Street, Suite 900
Washington, D.C. 20005
Telephone: (202) 538-8000
E-mail: michaelliftik@quinnemanuel.com
emilykapur@quinnemanuel.com
DOLLAR BANK: Court Narrows Claims in TCS Suit
---------------------------------------------
In the class action lawsuit captioned as THE COLUMBIAN SPOT, LLC,
and KITTY JOHNSON, individually and on behalf of all others
similarly situated, v. DOLLAR BANK, Case No. 2:21-cv-01171-CB (W.D.
Pa.), the Hon. Judge Cathy Bissoon entered an order granting in
part and denying in part motion to dismiss filed by the Defendant
Dollar Bank:
-- The Motion to Dismiss Count 3 is granted
.
-- Count 3 is dismissed without prejudice.
-- The Motion is denied in all other respects.
-- Once Dollar Bank answers, the Court will enter an order
setting an initial case management conference.
The Plaintiffs have brought this putative class action challenging
Dollar Bank's alleged policy and practice of charging its customers
improper fees in violation of federal law and in a manner not
contracted for.
Columbian Spot is a Pennsylvania limited liability company that had
a Dollar Bank checking account during the class period.
Dollar Bank is a Federal Savings Bank. It is headquartered in
Pittsburgh, Pennsylvania and has branches in Ohio, Pennsylvania and
Virginia.
The Plaintiffs, and all members of the proposed Classes, contracted
with Dollar Bank for checking account services, including debit
card services.
A copy of the Court's order dated Sept. 30, 2022 is available from
PacerMonitor.com at https://bit.ly/3SMvngP at no extra charge.[CC]
DUVAL COUNTY SCHOOL: Helm Loses Bid to Certify Class Action
-----------------------------------------------------------
In the class action lawsuit captioned as KYLE HELM, et al., v.
DUVAL COUNTY SCHOOL BOARD (DCSB), Case No. 3:21-cv-00900-TJC-LLL
(M.D. Fla.), the Hon. Judge Timothy J. Corrigan entered an order
denying the Plaintiffs' motion for class action certification
without prejudice:
"Parents or legal guardians, who are residents of Duval
County, Florida, with children between the ages of five and
18, who attend or previously attended a Duval County Public
School between August and December 2021, and were subject to
the Emergency Rule adopted August 23, 2021 (Mask Mandate);
but would have chosen to have their children attend school
unmasked without any pre-conditions if given the option."
The parties shall confer and file a Case Management Report no later
than October 20, 2022.
In sum, the Plaintiffs have not affirmatively demonstrated their
compliance with all the Rule 23 requirements, the Court says.
This case is again before the Court, this time in the context of a
motion for class certification.
The Plaintiffs, a group of parents and children challenging DCSB
mask policy, filed their Motion for Class Action Certification, to
which DCSB responded. The Plaintiffs' Second Amended Complaint
alleges that DCSB’s mask policy violated Plaintiffs'
constitutional rights.
A copy of the Court's order dated Oct. 3, 2022 is available from
PacerMonitor.com at https://bit.ly/3fPSrfY at no extra charge.[CC]
EBIX INC: S.D. New York Dismisses Saraf's Second Amended Complaint
------------------------------------------------------------------
In the case, RAHUL SARAF, individually and on behalf of all other
similarly situated, Plaintiff v. EBIX, INC., et al., Defendants,
Case No. 21-CV-1589 (JMF) (S.D.N.Y.), Judge Jesse M. Furman of the
U.S. District Court for the Southern District of New York grants
the Defendants' Motion to Dismiss the Second Amended Complaint.
In this putative class action, Lead Plaintiff Saraf brings
securities fraud claims against Ebix and two Ebix executives, Robin
Raina and Steven Hamil (the "Individual Defendants"). The operative
Second Amended Complaint alleges that, between Nov. 9, 2020, and
Feb. 19, 2021, the Defendants made material misstatements regarding
Ebix's internal control over its financial reporting, in violation
of Sections 10(b) and 20(a) of the Securities Exchange Act of 1934
(the "Exchange Act"), 15 U.S.C. Sections 78j(b), 78t(a); and
Securities and Exchange Commission ("SEC") Rule 10b-5 ("Rule
10b-5"), 17 C.F.R. Section 240.10b-5.
Ebix is a Delaware corporation headquartered in Georgia; its common
stock trades on the NASDAQ exchange. It provides "software and
e-commerce services" to a variety of industries worldwide. Raina is
Ebix's CEO and Chairman of the Board. Hamil was, during the class
period, its Chief Financial Officer.
In 2017, Ebix acquired an 80% stake in ItzCash, an Indian digital
payment company subsequently renamed EbixCash. In its press release
announcing the acquisition, Ebix noted that ItzCash was "India's
leading payment solutions Exchange" and emphasized that ItzCash was
"the only profitable payment solutions provider out of all its
peers." According to the Second Amended Complaint, EbixCash's
portfolio includes "domestic and international money remittance,
foreign exchange (Forex), travel, prepaid and gift cards, utility
payments, software solutions for lending and wealth management in
India and other markets." EbixCash's revenues are derived
"primarily from the sales of prepaid gift cards and consideration
paid by customers for financial transaction services, including
services like transferring or exchanging money."
On Nov. 9, 2020, the first day of the class period, Raina informed
investors during Ebix's third quarter 2020 earnings call that
"EbixCash revenues grew 268% in the third quarter of 2020 versus
the third quarter of 2019," and grew 82% compared to the second
quarter of 2020. He advised investors that EbixCash was
outperforming its "key competitors," which "delivered much less top
line growth than EbixCash." In its Form 10-Q for the third quarter
of 2020, Ebix further noted that the "$98 million increase in
payment solutions revenue, primarily in India, reflects the strong
demand for prepaid cards and other electronic payment solutions
since the COVID-19 pandemic arose." Throughout this period, the
Individual Defendants planed an IPO for EbixCash. According to a
confidential witness, Ebix was "betting the ranch on EbixCash."
The statements at the heart of Saraf's claims are certifications in
Ebix's Form 10-Q for the third quarter of 2020.
Additionally, Raina and Hamil attested in their Sarbanes-Oxley
("SOX") certifications that, based on their knowledge, the Form
10-Q "did not contain any untrue statement of a material fact."
Further, they both confirmed that they were responsible for
designing the Company's internal control procedures, designed such
procedures "to provide reasonable assurance regarding the
reliability of financial reporting," evaluated the internal control
procedures, and disclosed to the Company's auditors "all
significant deficiencies and material weaknesses in the design or
operation of" the internal control procedures.
In November 2020, Ebix's external auditor, RSM US LLP ("RSM"),
began an audit of the Company's 2020 financials. On Feb. 15, 2021,
however, RSM resigned without having completed the audit. RSM
informed the Company that it was resigning due to its inability,
"despite repeated inquiries, to obtain sufficient appropriate audit
evidence that would allow it to evaluate the business purpose of
significant unusual transactions that occurred in the fourth
quarter of 2020." Moreover, it informed Ebix in writing that the
Company's "internal control over financial reporting was not
effective as of Dec. 31, 2020 due to the identification of a
material weakness." The weakness, according to RSM, was Ebix's
failure to "design or implement the necessary procedures and
controls over the gift or prepaid card revenue transaction cycle
sufficient to prevent or detect a material misstatement." Following
disclosure of RSM's resignation, Ebix's stock price fell
approximately 40%.
After RSM resigned, Ebix hired a new auditor -- K.G. Somani & Co.
("KGS"). Ebix authorized RSM to respond to any inquiries from KGS.
On April 27, 2021, KGS issued a "clean, unqualified audit opinion"
and did not identify any material weaknesses in the Company's
internal control. Ebix also engaged outside an outside law firm and
consulting firm to look into the issues raised by RSM's
resignation. Based on their review, Ebix determined that "no steps
were necessary with respect to any gift card business issues raised
by RSM."
A complaint alleging securities fraud will survive "only if a
reasonable person would deem the inference of scienter cogent and
at least as compelling as any opposing inference one could draw
from the facts alleged." In this Circuit, a plaintiff may satisfy
the scienter pleading requirement in either of two ways: "by
alleging facts (1) showing that the defendants had both motive and
opportunity to commit the fraud or (2) constituting strong
circumstantial evidence of conscious misbehavior or recklessness."
The former requires a plaintiff to allege that the defendant
"benefitted in some concrete and personal way from the purported
fraud." The latter requires allegations of either actual intent or
"conscious recklessness -- i.e., a state of mind approximating
actual intent, and not merely a heightened form of negligence."
More specifically, a plaintiff must allege conduct by a defendant
that is, "at the least, conduct which is highly unreasonable and
which represents an extreme departure from the standards of
ordinary care to the extent that the danger was either known to the
defendant or so obvious that the defendant must have been aware of
it." As a general matter, courts have approved of claims when
plaintiffs "have specifically alleged defendants' knowledge of
facts or access to information contradicting their public
statements. Under such circumstances, defendants knew or, more
importantly, should have known that they were misrepresenting
material facts related to the corporation."
Applying the foregoing standards, Judge Furman concludes that
Saraf's claims must be and are dismissed for failure to adequately
allege that any Defendant acted with the requisite state of mind.
For starters, Saraf's "motive and opportunity" arguments -- which
he makes only as to Raina -- are easily rejected. He does not
allege that Raina sold shares during the class period. Put simply,
Saraf fails to allege that any Defendant received a "concrete and
personal" benefit from the alleged scheme. Accordingly, his motive
and opportunity arguments fail.
Mr. Saraf's "conscious misbehavior or recklessness" arguments
require more discussion, but they too ultimately fall short. Judge
Furman opines that Saraf does not allege that EbixCash constituted
"nearly all" of Ebix's business. Moreover, core-operations
allegations are "supplementary"; that is, they are not
"independently sufficient means to plead scienter." And in the
case, Saraf does not allege other supporting facts sufficient to
establish scienter.
Indeed, Saraf makes no non-conclusory showing that Raina or Hamil
had access to "specific contradictory information at the same time"
that they signed the Form 10-Q. The Second Amended Complaint
contains no non-conclusory allegations that RSM informed the
Individual Defendants prior to its resignation in February 2021,
let alone in or before November 2020, that it had identified a
material weakness in Ebix's internal control. Nor does Saraf allege
that any of the confidential witnesses brought their concerns about
Ebix's accounting to either Raina or Hamil before they issued the
Form 10-Q.
And, without any showing that Raina or Hamil had access to
information suggesting material weaknesses in Ebix's internal
control, the fact that they were "continually monitoring" the
effects of COVID-19 on their internal controls does not suggest
that they were aware of facts contradicting their Form 10-Q
statements. Put simply, Saraf fails to allege that Raina or Hamil
knew that the Form 10-Q statements were false or otherwise
misleading.
Nor, absent evidence of contemporaneous knowledge of falsity, do
Raina's and Hamil's SOX certifications support a finding of
scienter. Saraf fails to point to any document, report, or oral
statement showing that the Individual Defendants knew at the time
that their statements regarding the effectiveness of Ebix's
internal control were false or misleading. Accordingly, he does not
adequately plead scienter on that basis, the Court holds.
Mr. Saraf's other effort to establish conscious misbehavior or
recklessness -- on the ground that the Defendants recklessly
disregarded red flags regarding the Company's insufficient internal
control -- fares no better. Judge Furman holds that Saraf makes no
allegations at all about a reduction in the size of the EbixCash
accounting team. His allegations regarding Ebix's growth do not
support an inference of scienter that is at least as cogent as a
non-fraudulent inference. More broadly, he does not describe the
types of red flags that could support an inference of recklessness.
As such, Saraf fails to show that Raina or Hamil "should have known
that they were misrepresenting" the strength of the company's
internal control in their SOX certifications.
Judge Furman further opines that Saraf's allegations about other
actions or wrongs do not support an inference that the Individual
Defendants knew about or recklessly disregarded material weaknesses
in internal control. Saraf "does not explain how any of these
actions or offenses are tied" to the allegedly misleading Form 10-Q
statements. Nor does he allege that Ebix has either admitted to
weakness in its internal controls or restated its 2020 financials.
Finally, Saraf points to the resignation of RSM to support his
scienter arguments. But RSM's resignation in February 2021 says
nothing about the knowledge (or lack thereof) of Raina and Hamil
three months earlier, in November 2020. That is, there is no
evidence or allegation that RSM advised Defendants of weaknesses in
Ebix's internal control in or before November 2020. To the
contrary: RSM's audit began, at the earliest, in November 2020. For
these reasons, the cases cited by Saraf are inapposite. In addition
to the resignation of an independent auditor, each of these cases
also included well-pleaded facts showing that the defendant company
was aware of weak internal controls over their financial
reporting.
In sum, Judge Furman holds that Saraf does not adequately plead
scienter with respect to either Raina or Hamil. It follows that no
scienter can be "imputed to Ebix." Accordingly, his claims all fail
as a matter of law.
For the reasons he stated, Judge Furman dismisses Saraf's claims
under the Exchange Act and SEC Rule 10b-5. That leaves only the
question of whether Saraf should be granted leave to amend his
complaint, which he has requested. Notably, Saraf already had two
opportunities to amend, and he does not identify facts in his
possession that would cure the defects discussed above. That said,
mindful that leave to amend a complaint should be freely given
"when justice so requires," and that "complaints dismissed under
Rule 9(b)" or the PSLRA "are almost always dismissed with leave to
amend," Judge Furman grants Saraf one final chance to amend. Saraf
will file any Third Amended Complaint within 30 days of the date of
the Opinion and Order.
The Clerk of Court is directed to terminate ECF No. 64.
A full-text copy of the Court's Sept. 30, 2022 Opinion & Order is
available at https://tinyurl.com/mvahjahd from Leagle.com.
ENVIVA INC: Rosen Law Probes Possible Securities Class Action
-------------------------------------------------------------
Rosen Law Firm, a global investor rights law firm, continues to
investigate potential securities claims on behalf of shareholders
of Enviva Inc. (NYSE: EVA) resulting from allegations that Enviva
may have issued materially misleading business information to the
investing public.
SO WHAT: If you purchased Enviva securities you may be entitled to
compensation without payment of any out of pocket fees or costs
through a contingency fee arrangement. The Rosen Law Firm is
preparing a class action seeking recovery of investor losses.
WHAT TO DO NEXT: To join the prospective class action, go to
https://rosenlegal.com/submit-form/?case_id=9162 or call Phillip
Kim, Esq. toll-free at 866-767-3653 or email pkim@rosenlegal.com or
cases@rosenlegal.com for information on the class action.
WHAT IS THIS ABOUT: On October 12, 2022, before markets opened,
market researcher Blue Orca Capital published a report alleging
issues with Enviva. In relevant part, the Blue Orca report alleged
that, contrary to Enviva's public representations, Enviva was
purchasing wood from clear-cut forests. This, according to the
report, would disincentivize large numbers of Enviva customers from
purchasing wood pellets from Enviva. Wood pellets produced from
clear-cut forests would not qualify for an important 'renewable
energy' classification.
Furthermore, the Blue Orca report alleged that Enviva was engaging
in an equipment-lease scheme to inflate its EBITDA, wherein Enviva
would purchase and capitalize equipment, then lease the equipment
to loggers who would sell wood pellets to Enviva for a reduced
price. This allowed Enviva to lower the cost of materials, allowing
Enviva to report artificially boosted EBITDA numbers.
On this news, Enviva's share price dropped by $7.74 per share, or
approximately 13%, to close at $51.23 per share on October 12,
2022.
WHY ROSEN LAW: We encourage investors to select qualified counsel
with a track record of success in leadership roles. Often, firms
issuing notices do not have comparable experience, resources, or
any meaningful peer recognition. Many of these firms do not
actually litigate securities class actions. Be wise in selecting
counsel. The Rosen Law Firm represents investors throughout the
globe, concentrating its practice in securities class actions and
shareholder derivative litigation. Rosen Law Firm has achieved the
largest ever securities class action settlement against a Chinese
Company. Rosen Law Firm was Ranked No. 1 by ISS Securities Class
Action Services for number of securities class action settlements
in 2017. The firm has been ranked in the top 4 each year since 2013
and has recovered hundreds of millions of dollars for investors. In
2019 alone the firm secured over $438 million for investors. In
2020, founding partner Laurence Rosen was named by law360 as a
Titan of Plaintiffs' Bar. Many of the firm's attorneys have been
recognized by Lawdragon and Super Lawyers. [GN]
EQT CORPORATION: Asbury, et al., File Renewed Bid for Class Status
------------------------------------------------------------------
In the class action lawsuit captioned as PATRICIA ASBURY, ET AL.,
v. EQT CORPORATION, EQUITRANS, L.P., EQT PRODUCTION COMPANY, and
EQT MIDSTREAM PARTNERS, L.P., Case No. 2:18-cv-01005-CB (W.D. Pa.),
the Plaintiff asks the Court to enter an order that:
1. The class as defined in the Brief be certified under Rule
23;
2. Domenic Laudato, Jr., be appointed class representative;
3. Any and all issues described in the Brief be certified
under Rule 23(c)(4);
4. If necessary, this proceeding and proposed class (or sub-
classes), be bifurcated, modified, or amended to the extent
necessary by this Court to achieve class certification;
5. Identified counsel be appointed class counsel; and
6. Any and all relief this Court finds just and proper.
EQT is an American energy company engaged in hydrocarbon
exploration and pipeline transport. It is headquartered in EQT
Plaza in Pittsburgh, Pennsylvania.
A copy of the Plaintiffs' motion to certify class dated Sept. 30,
2022 is available from PacerMonitor.com at https://bit.ly/3yoEsUZ
at no extra charge.[CC]
The Plaintiff is represented by:
Jordan H. Walker, Esq.
SEVER STOREY, LLP
881 3rd Ave. SW, Suite 101
Carmel, IN 46032
Telephone: (317) 575-9942
- and -
Elizabeth M. Tarasi, Esq.
Louis M. Tarasi, Jr., Esq.
TARASI & TARASI P.C.
510 Third Avenue
Pittsburgh, PA 15219
FAST PACE: Hutchinson Suit Seeks to Certify FLSA Collective
-----------------------------------------------------------
In the class action lawsuit captioned as CHRISTY HUTCHINSON,
CHRISTINA COURTNEY, and KAREN HARRIS, Individually and On Behalf of
All Others Similarly Situated, v. FAST PACE MEDICAL CLINIC PLLC
d/b/a FAST PACE HEALTH, Case No. 3:22-cv-511 (M.D. Tenn.), the
Plaintiffs asks the Court to enter an order:
1. Conditionally certifying an FLSA Collective, defined as:
"All persons who are or were, at any time within the
period of 3 years preceding the commencement of this
action through the date of judgment, employed by Defendant
in any of its healthcare centers in the United States as
hourly-paid, non-exempt healthcare workers, who held job
positions including but not limited to Clinical
Technician, Medical Assistant, Certified Medical
Assistant, Licensed Practical Nurse, Medical Receptionist,
and X-ray Technician, and are/were subject to Defendant’s
automatic meal-break deduction policy, and/or received
quarterly bonuses that were not included in their overtime
rates";
2. Directing the Defendants to identify all putative members
of the Collective by providing their names, last known
addresses, dates, and locations of employment, job titles,
phone numbers, and e-mail addresses, in an electronic and
importable format such as an unrestricted Excel
spreadsheet, within 14 calendar days of the entry of this
Order;
3. Approving the Plaintiffs' proposed "Notice of Right to
Join Lawsuit" and "Consent to Join Lawsuit" Form and
proposed language of the email and text message to be sent
to the putative members of the Collective;
4. Authorizing the Plaintiffs' Counsel to direct a claims
administrator to maintain a case website displaying the
text of the approved "Notice of Right to Join Lawsuit" and
"Consent to Join Lawsuit" forms, through which members of
the Collective may sign their Consent to Join forms
electronically;
5. Authorizing Plaintiffs' counsel to disseminate the
approved notice to the putative members of the Collective
via U.S. Mail, e-mail and text message, and to send a
reminder notice via e-mail and text message halfway
through the notice period; and
6. Affording the putative members of the Collective 60 days
from the date the notice is issued to join this case by
completing either paper or electronic consent forms.
Fast Pace provides medical services. The Hospital offers treatment
for a wide range of illnesses, injuries, and common conditions.
A copy of the Plaintiffs' motion dated Sept. 30, 2022 is available
from PacerMonitor.com at https://bit.ly/3e9epu5 at no extra
charge.[CC]
The Plaintiff is represented by:
Jason T. Brown, Esq.
Nicholas Conlon, Esq.
BROWN, LLC
111 Town Square, Suite 400
Jersey City, NJ 07310
Telephone: (877) 561-0000
Facsimile: (855) 582-5297
E-mail: jtb@jtblawgroup.com
nicholasconlon@jtblawgroup.com
- and -
Justin G. Day, Esq.
MILBERG COLEMAN BRYSON
PHILLIPS GROSSMAN, PLLC
First Tennessee Plaza
800 S. Gay Street, Suite 1100
Knoxville, TN 37929
Telephone: (856) 247-0080
Facsimile: (865) 522-0049
E-mail: jday@milberg.com
FINAL EXPENSE: Faces Suit Over Unsolicited Telemarketing Calls
--------------------------------------------------------------
Kelly Mehorter at classaction.org reports that a proposed class
action alleges Final Expense Assistant and TZ Insurance Solutions
have illegally placed unsolicited telemarketing calls to phone
numbers they supposedly obtained through the ruse of a
sweepstakes.
According to the 19-page case, telemarketer Final Expense and
insurance broker TZ "inundated" a Florida woman's cell phone with
unwanted telemarketing calls throughout the early months of 2020,
even though her number had been registered on the National Do Not
Call registry.
The lawsuit contends that the companies obtained the plaintiff's
phone number in January 2020 after her name and phone number were
entered into Super-Sweepstakes.com for the chance to "win $50,000,"
although the consumer claims to not recall entering the contest.
Shortly after entering the sweepstakes, the plaintiff began to
receive an onslaught of calls from Final Expense on behalf of TZ,
the case alleges. The calls apparently solicited burial and "final
expense" insurance, which the plaintiff found to be "morbid and
unsettling," the complaint states.
"Rather than winning money, Plaintiff and the putative class member
received disruptive and unwanted telemarketing calls regarding the
unsettling topic of burial insurance," the filing scathes.
The suit alleges the companies have violated the Telephone Consumer
Protection Act (TCPA) by illegally contacting phone numbers
registered on the Do Not Call Registry without securing consent
through a "clear and conspicuous disclosure."
Per the complaint, Final Expense tried to persuade the plaintiff
that she had provided express written consent to receive the
telemarketing calls. The telemarketer showed the plaintiff a
"Trusted Form" document, which the company claimed indicated that
her information was used to "opt-in" to the sweepstakes, the case
asserts.
As the filing tells it, the "opt-in" page contained "a hyperlink on
the camouflaged words 'marketing partners,' which directs a visitor
who clicks the hyperlink to a webpage listing hundreds of
companies, including Final Expense." The suit contests that the
"sweepstakes" website exists merely to obtain consumer data.
"The Super-Sweepstakes website was designed to present a loud,
clear and conspicuous promotion of a 'sweepstakes' to win $50,000
with a conspicuous [sic], overshadowed and camouflaged disclosure
as to the true purpose of the website: obtaining consumer data for
telemarketing purposes- including facilitating the sale of 'burial
insurance.'"
The suit argues that camouflaged "marketing partners" disclosure is
not a valid form of consent under the TCPA because it is not
apparent to a reasonable consumer. Instead, Final Expense's
disclosure is "deliberately deceptive," the complaint alleges.
The lawsuit looks to represent the following class:
"For the period from four years prior to the filing of this suit
until the date a class is certified, all persons in the United
States whose: (1) phone numbers in Defendants' records that
purportedly show the numbers were submitted through the
'Super-Sweepstakes.com' website; (2), where such person received
more than one telephone call on behalf of TZ or from Final Expense
(or someone acting on its behalf) during a 12-month period; (3)
that person's number was registered on the Do Not Call Registry for
more than 31 days at the time the calls were received; and (4) the
person's phone number was either a landline or a cell phone, for
which the subscriber was an individual, rather than a business."
[GN]
FORD MOTOR: Faces Class Action Suit Over Faulty Water Pumps
-----------------------------------------------------------
David A. Wood, writing for CarComplaints.com, reports that a Ford
water pump class action lawsuit alleges New York customers are
driving faulty Ford and Lincoln vehicles equipped with Cyclone
(Duratec) engines.
Ford has allegedly refused to issue a water pump recall and has not
fixed the vehicles or compensated owners.
According to the plaintiff who filed the Ford water pump class
action lawsuit, the automaker has known for more than 10 years the
Duratec engines are equipped with faulty water pumps.
The internal chain-driven water pump allegedly fails prematurely
before the end of the useful life of the Ford vehicle. The lawsuit
alleges the Ford water pump should last at least 150,000 miles.
"Plaintiff and members of the New York Class relied on Ford's
representation and had a reasonable expectation that the Internal
Water Pump in the Class Vehicles did not require costly
maintenance, service, repair, or replacement before the vehicles
were driven at least 150,000 miles." -- Ford water pump class
action lawsuit
The lawsuit says since 2007 through at least 2020, Ford installed
the Cyclone engines with the allegedly defective water pumps in
thousands of these models.
* Ford Edge
* Ford Explorer
* Ford Flex
* Ford Fusion
* Ford Taurus
* Lincoln MKT
* Lincoln MKX
* Lincoln MKZ
The Ford class action lawsuit was filed by the New York owner of a
2016 Ford Explorer.
"Plaintiff Mark Militello ("Plaintiff") brings this class action
against Ford, individually and on behalf of all persons in New York
who purchased a Class Vehicle from an authorized Ford dealer."
Ford Water Pump Replacement Cost
Plaintiff Militello bought the 2016 Ford Explorer in March 2019 but
in September 2019 the Ford water pump failed from a coolant leak
when the Explorer had about 61,300 miles on it. The plaintiff
asserts he had to pay about $2,000 to replace the water pump.
The water pump class action alleges a Cyclone engine water pump
costs about $200, but an owner can easily pay $1,500 for a water
pump replacement due to labor costs.
The high replacement cost is allegedly caused by the location of
the Ford water pump behind the timing cover of the Duratec engine.
The plaintiff contends a mechanic must remove the passenger front
wheel fender liner, coolant reservoir, air filter box, throttle
body, intake manifold, ignition coils, valve covers, engine mount
and bracket, AC compressor belt, AC drive tensioner, power steering
pump, crank shaft pulley and timing cover.
A simple inspection of the Ford water pump can allegedly cost about
$1,000, and replacing the water pump can allegedly require about
12-14 hours of work and the replacement of several gaskets and
seals.
Additionally, the location of the water pump in the Cyclone engine
is in line with the crankshaft and over the main body of the
engine, allowing coolant to leak from the water pump into the oil
pan.
This causes oil and coolant to mix and circulate through the
Duratec engine, forcing an owner to pay up to $9,000 to replace the
engine.
The water pump lawsuit also alleges the Ford vehicles contain
defective unreinforced bearing oil seals which allow coolant to
leak across the mechanical seals to penetrate the bearing seals
which contaminate and washes out the bearing lubricant.
The Ford water pump class action lawsuit alleges the vehicle
warranties are "unconscionable" and the Ford vehicles are allegedly
"defective, unsafe, and unfit for their intended use and purpose."
The Ford water pump class action lawsuit was filed in the U.S.
District Court for the Western District of New York: Mark Militello
v. Ford Motor Company.
The plaintiff is represented by Robbins Geller Rudman & Dowd LLP,
Kessler Topaz Meltzer & Check, LLP, The Miller Law Firm, P.C., Keil
& Goodson, P.A., and The Edwards Firm, PLLC. [GN]
FUNKO INC: Agrees to Settle Shareholder Class Action for $7 Million
-------------------------------------------------------------------
Abraham Jewett, writing for Top Class Actions, reports that Funko
Inc. agreed to pay $7 million as part of a settlement made to
resolve claims the company misled its investors about its inventory
and sales projections.
Shareholders argued that Funko misled its investors by saying it
accumulated a large amount of inventory that was actually obsolete,
Law360 reports.
The shareholders claimed further that executives for Funko sold off
their shares at an inflated price prior to the company announcing
an inventory write-down due to underperforming sales.
The Funko class action settlement will allow shareholders to
recover 8.7% of the maximum $80 million in estimated damages,
according to a motion for final settlement approval.
Funko class action alleges CEO engaged in 'illegal insider
trading'
The Funko class action alleges the company withheld the inventory
write-down from its shareholders when it made a statement to them
in October 2019, Law360 reports.
It also claims Funko's then-CEO Brian Mariotti sold off 400,000
company shares during its secondary public offering. The
shareholders argue that Mariotti's move to sell shares was akin to
illegal insider trading since it was done with information that was
not available to the public, Law360 reports.
A consumer filed a similar class action lawsuit against Twitter
last month, arguing that the company and its top executives failed
to disclose security concerns to the public.
The plaintiffs are represented by Michael J. Wernke, Jeremy A.
Lieberman and Jennifer Pafiti of Pomerantz LLP; Stephanie M. Beige
and Stanley D. Bernstein of Bernstein Liebhard LLP; and Peretz
Bronstein of Bronstein Gewirtz & Grossman LLC.
The Funko class action lawsuit is Ferreira v. Funko Inc., et al.,
Case No. 2:20-cv-02319, in the U.S. District Court for the Central
District of California. [GN]
GOSSAMER BIO: Settlement in Kuhne Suit Approved
-----------------------------------------------
In the class action lawsuit captioned as SCOTT KUHNE, individually
and on behalf of all others similarly situated, v. GOSSAMER BIO,
INC., SHEILA GUJRATHI, M.D., BRYAN GIRAUDO, FAHEEM HASNAIN, JOSHUA
H. BILENKER, M.D., KRISTINA BUROW, RUSSELL COX, THOMAS DANIEL,
M.D., RENEE GALA, OTELLO STAMPACCHIA, Ph.D., MERRILL LYNCH, PIERCE,
FENNER & SMITH INCORPORATED, SVB LEERINK LLC, BARCLAYS CAPITAL
INC., and EVERCORE GROUP L.L.C., Case No. (), the Hon. Judge Dana
M. Sabraw entered judgment approving class action settlement as
follows:
-- Certification of the Class for Purposes of Settlement
Pursuant to Rule 23 of the Federal Rules of Civil
Procedure, this Court certifies, solely for purposes of
effectuating the Settlement, this Action as a class action
on behalf of the Class defined as:
"all Persons who purchased Gossamer common stock between
February 8, 2019 and December 13, 2019, inclusive, and/or
who acquired Gossamer shares pursuant or traceable to
Gossamer's Registration Statement and Prospectus in
connection with the IPO;"
Excluded from the Class are Defendants and their families,
the officers, directors, and affiliates, and their legal 6
representatives, heirs, successors or assigns, and any
entity in which Defendants have or had a controlling
interest.
The foregoing exclusion shall not cover Investment
Vehicles. Also excluded from the Class are the Persons who
timely and validly submitted a request for exclusion from
the Class that was accepted by the Court.
Lead Plaintiff is hereby appointed, for purposes of
effectuating the Settlement only, as representative for
the Class for purposes of Federal Rule of Civil Procedure
23. Block & Leviton LLP, who was appointed by the Court
to serve as Lead Counsel, is hereby appointed, for
settlement purposes only, as counsel for the Class
pursuant to Rules 23(c)(1)(B) and (g) of the Federal
Rules of Civil Procedure.
-- Final Settlement Approval and Dismissal of Claims
Pursuant to, and in accordance with, Rule 23 of the
Federal Rules of Civil Procedure, this Court hereby fully
and finally approves the Settlement set forth in the
Stipulation in all respects (including, without
limitation: the amount of the Settlement; the Releases
provided for therein; and the dismissal with prejudice of
the claims asserted against Defendants in the Action),
and finds that the Settlement is, in all respects, fair,
reasonable and adequate to the Class.
Gossamer Bio is a clinical-stage biopharmaceutical company focused
on discovering, acquiring, developing and commercializing
therapeutics in the disease areas of immunology, inflammation and
oncology.
A copy of the Court's order dated Sept. 30, 2022 is available from
PacerMonitor.com at https://bit.ly/3RIlcsm at no extra charge.[CC]
GRAPEVINE OF NORTH CAROLINA: Filing for Class Cert Bid Extended
---------------------------------------------------------------
In the class action lawsuit captioned as GLYMPH-DOZIER et al., v.
GRAPEVINE OF NORTH CAROLINA, INC. et al., Case No.
1:21-cv-748-CCE-JEP (M.D.N.C.), the Court entered an order granting
joint motion for extension of time.
The Court grants the parties' bid for more time within which the
parties may file revised Motions for Class Certification and for
Preliminary Approval of the Settlement Agreement, supporting
memorandums, and Exhibits to the Joint Motion for Preliminary
Approval so that the motion can take into account the Court's
preferences about the form of the notices.
The Court advises the parties that it prefers separate notices to
the North Carolina class and the South Carolina class.
Grapevine of North Carolina, Inc. operates as a distributor of
alcoholic beverages. The Company offers beer, cider, and wine
products.
A copy of the Court's order dated Sept. 27, 2022 is available from
PacerMonitor.com at https://bit.ly/3yauUNd at no extra charge.[CC]
HEATHER MUELLER: Court Certifies Class of Special Children
-----------------------------------------------------------
In the class action lawsuit captioned as K.O., et al., v. Heather
Mueller, Case No. 0:21-cv-01837-PJS-DJF (D. Minn,), the Hon. Judge
Patrick J. Schiltz entered an order:
1. certifying a class of:
"All children (a) who are receiving or received special
instruction and services pursuant to the Individuals with
Disabilities Education Act and Minnesota Special
Instruction laws from a local educational agency in
Minnesota, (b) who became 21 years old after July 1, 2019,
or will become 21 during the pendency of this action, (c)
whose special instruction and services ended, or will end,
on July 1 after their 21st birthday pursuant to Minn.
Stat. section 125A.03(b), (d) whose special instruction
and services ended, or will end, before they complete the
graduation requirements to receive a regular high school
diploma as defined in 34 C.F.R. 300.102(a)(3)(iv)."
2. appointing Plaintiffs K.O. (suing through his parent J.O.)
and A.C. (suing through her parents D.C. and J.C.) as
class representatives; and
3. appointing Jason H. Kim of Schneider Wallace Cottrell
Konecky and Sonja Peterson of the Minnesota Disability Law
Center as class counsel pursuant to Federal Rule of Civil
Procedure 23(g).
A copy of the Court's order dated Sept. 29, 2022 is available from
PacerMonitor.com at https://bit.ly/3Eo2fI9 at no extra charge.[CC]
HINO MOTOR: GMP Law Commences Emission Class Action Lawsuit
-----------------------------------------------------------
Gerard Malouf & Partners (GMP Law) has commenced a Class Action
proceeding against Hino Motor Sales Australia Pty Ltd and Hino
Motors Limited in the Supreme Court of Victoria on 30 September
2022.
The proceeding seeks compensation on behalf of all purchasers or
lessees of affected Hino Vehicles in Australia which were the
subject of misconduct in relation to the certification in Japan in
respect of emissions and fuel economy from as early as 2003.
Such misconduct has now been admitted by the companies in respect
of numerous Hino vehicles.
Compensatory damages are being claimed against both companies with
an additional claim for exemplary or punitive damages against the
Japanese parent company.
It is claimed that the misconduct in relation to emissions and fuel
economy of Hino vehicles has caused not only financial loss to
consumers of these vehicles but also environmental damage and
damage to human health through excess emissions.
To learn more and to register please visit our website:
www.hinoclassaction.com.au [GN]
HOOVESTOL INC: Hardwick's Bid to Certify Class Granted in Part
--------------------------------------------------------------
In the class action lawsuit captioned as Thomas Hardwick, as an
individual and on behalf of all others similarly situated, v.
HOOVESTOL, INC., a Minnesota corporation; 10 ROADS EXPRESS, LLC,
and DOES 1 through 10, inclusive, v. Case No. CV 20-7505-DMG-MAAx
(C.D. Cal.), the Hon. Judge Dolly M. Gee entered an order granting
in part and denying in part Hardwick's motion to certify class as
follows:
1. The Court certifies the following Class:
"All current and former hourly drivers employed by the
Defendants in the State of California at any time from May
22, 2017 through the present, who are not members of the
Terry class or who performed work after December 7, 2018."
2. The Court certifies the following subclasses:
a. Wage Statement Subclass:
"All Class Members employed by the Defendants in the
State of California at any time from May 22, 2019 to
the present;"
b. Waiting Time Penalty Subclass:
"All former hourly drivers employed by the Defendants
in the State of California at any time from 22, 2017
through the present, who are not members of the Terry
class or who performed work after December 7, 2018, and
who received hourly fringe pay and sick pay during the
same pay period.
3. The Court appoints Thomas Hardwick as the representative
of the Class.
4. The Court appoints James R. Hawkins, Christina M. Lucio,
and Mitchell J. Murray of James Hawkins APLC as Class
Counsel.
A copy of the Court's order dated Sept. 28, 2022 is available from
PacerMonitor.com at https://bit.ly/3ViEsj8 at no extra charge.[CC]
INTERNATIONAL GAME: Bids for Lead Plaintiff Appointment Due Dec. 13
-------------------------------------------------------------------
Pomerantz LLP announces that a class action lawsuit has been filed
against International Game Technology PLC ("IGT" or the "Company")
(NYSE: IGT) and certain of its officers. The class action, filed in
the United States District Court for the District of New Jersey,
and docketed under 22-cv-06094, is on behalf of a class consisting
of all persons and entities other than Defendants that purchased or
otherwise acquired IGT securities between March 16, 2018 and August
29, 2022, both dates inclusive (the "Class Period"), seeking to
recover damages caused by Defendants' violations of the federal
securities laws and to pursue remedies under Sections 10(b) and
20(a) of the Securities Exchange Act of 1934 (the "Exchange Act")
and Rule 10b-5 promulgated thereunder, against the Company and
certain of its top officials.
If you are a shareholder who purchased or otherwise acquired IGT
securities during the Class Period, you have until December 13,
2022 to ask the Court to appoint you as Lead Plaintiff for the
class. A copy of the Complaint can be obtained at
www.pomerantzlaw.com. To discuss this action, contact Robert S.
Willoughby at newaction@pomlaw.com or 888.476.6529 (or
888.4-POMLAW), toll-free, Ext. 7980. Those who inquire by e-mail
are encouraged to include their mailing address, telephone number,
and the number of shares purchased.
IGT describes itself as "a global leader in gaming that delivers
entertaining and responsible gaming experiences for players across
all channels and regulated segments, from gaming machines and
lotteries to sports betting and digital."
In June 2017, IGT completed the sale of DoubleDown Interactive LLC
("DDI"), the operator of an online casino called DoubleDown Casino,
to DoubleU Diamond LLC ("DoubleU").
The Complaint alleges that, throughout the Class Period, Defendants
made materially false and misleading statements regarding the
Company's business, operations, and compliance policies.
Specifically, Defendants made false and/or misleading statements
and/or failed to disclose that: (i) IGT overstated its compliance
with gaming and lottery laws and applicable regulations; (ii) IGT
and/or one or more of its current and/or former subsidiaries
engaged in illegal gambling operations; (iii) the foregoing conduct
subjected the Company and/or its current and/or former subsidiaries
to a heightened risk of litigation and significant related costs;
(iv) the Company downplayed the full scope and severity of its
financial exposure to, and/or liabilities in connection with, the
Benson Action (defined below); and (v) as a result, the Company's
public statements were materially false and misleading at all
relevant times.
On April 9, 2018, a putative class action was filed in federal
court against DDI and a wholly-owned subsidiary of the Company
called International Game Technology ("IGT Subsidiary"), styled
Benson v. Double Down Interactive, LLC et al., No. 2:18-cv-00525
(W.D. Wash.) (the "Benson Action"). The Benson Action alleges,
among other things, that IGT Subsidiary and DDI illegally profited
from tens of thousands of consumers in violation of Washington law
in connection with their operation of DoubleDown Casino.
On May 10, 2018, DDI and DoubleU sent a claim notice (the "DDI
Claim Notice") to IGT Subsidiary seeking indemnification and
reimbursement of defense costs for all claims against DoubleU and
its affiliates in the Benson Action pursuant to the terms of
certain agreements with DoubleU.
On August 29, 2022, IGT and DDI issued a joint press release
"announc[ing] an agreement in principle to settle the Benson v.
DoubleDown Interactive LLC, et. al. lawsuit and associated
proceedings (the 'Benson Matters')." The press release stated that,
pursuant to the settlement, "[a] total of $415 million will be paid
into a settlement fund of which IGT's subsidiaries will contribute
$269.75 million" and that "[a]s a result of the settlement
agreement, IGT will accrue a $119.75 million non-operating expense
in the third quarter related to the incremental loss associated
with the Benson Matters and related claims between IGT and
DoubleDown and their respective subsidiaries and affiliates ($150
million was accrued in the second quarter)."
On this news, IGT's ordinary share price fell $0.46 per share, or
2.45%, to close at $18.28 per share on August 30, 2022.
Pomerantz LLP, with offices in New York, Chicago, Los Angeles,
London, Paris, and Tel Aviv, is acknowledged as one of the premier
firms in the areas of corporate, securities, and antitrust class
litigation. Founded by the late Abraham L. Pomerantz, known as the
dean of the class action bar, Pomerantz pioneered the field of
securities class actions. Today, more than 85 years later,
Pomerantz continues in the tradition he established, fighting for
the rights of the victims of securities fraud, breaches of
fiduciary duty, and corporate misconduct. The Firm has recovered
numerous multimillion-dollar damages awards on behalf of class
members. [GN]
JOHNSON & JOHNSON: Edley Loses Class Certification Bid
------------------------------------------------------
In the class action lawsuit captioned as DANIEL EDLEY and ROGER
EDLEY individually; as personal representatives of the Estate of
Laszlo "Louis" Edley, deceased on behalf of said estate; and as
representative of others similarly situated, v. JOHNSON & JOHNSON;
John/Jane Doe Attorneys 1-1000; and John/Jane Doe J&J Corporate
Members 1-1000, Case No. 3:22-cv-02970-FLW-TJB (D.N.J.), the
Defendant asks the Court to enter an order denying class
certification and/or striking the Complaint's class allegations
with prejudice.
Johnson & Johnson is an American multinational corporation founded
in 1886 that develops medical devices, pharmaceuticals, and
consumer packaged goods.
A copy of the Defendant's motion dated Sept. 30, 2022 is available
from PacerMonitor.com at https://bit.ly/3fFcoWE at no extra
charge.[CC]
The Defendant Johnson & Johnson is represented by
Peter C. Harvey, Esq.
Jonah M. Knobler, Esq.
Thomas P. Kurland, Esq.
PATTERSON BELKNAP WEBB & TYLER LLP
1133 Avenue of the Americas
New York, NY 10036
Telephone: (212) 336-2000
E-mail: pcharvey@pbwt.com
jknobler@pbwt.com
tkurland@pbwt.com
- and -
John C. Garde, Esq.
Penelope M. Taylor, Esq.
McCARTER & ENGLISH, LLP
Four Gateway Center
100 Mulberry Street
Newark, NJ 07102
Telephone: (973) 622-4444
E-mail: jgarde@mccarter.com
ptaylor@mccarter.com
JOLO INC: Court Grants Rule 23 Class Certification in Saad Suit
---------------------------------------------------------------
In the class action lawsuit captioned as LEAH SAAD, DEANNA GALLO,
BRITTANY DUCHAINE AND SANCHERE KELLY, on behalf of themselves and
all other similarly situated, v. JOLO, INC. d/b/a HURRICANE
BETTY'S, Case No. 4:20-cv-11377-TSH (D. Mass.), the Hon. Judge
Timothy S. Hillman entered an order granting the Plaintiffs' motion
for class certification under Fed.R.Civ.P. 23 and appointment of
class counsel Under Fed. R. Civ. P. 23(g).
On October 31, 2022, the Plaintiff shall provide the Court with a
proposed class certification Order defining the class, the class
claims, issues, or defenses, and appointing class counsel under
Fed.R.Civ.P. 23(g).
The Plaintiffs shall also file a proposed form of notice in
accordance with Fed.R.Civ.P. 23(c)(2)(B). If Defendants object to
the proposed Order and/or form of notice, they shall file their own
proposed Order/form of notice by November 14, 2022.
A copy of the Court's order dated Sept. 30, 2022 is available from
PacerMonitor.com at https://bit.ly/3efwkzc at no extra charge.[CC]
JUUL LABS: Bay District Schools Join E-Cigarette Class Action Suit
------------------------------------------------------------------
Emma Riley at mypanhandle.com reports that Bay District Schools is
joining more than 1300 other school districts in a class action
lawsuit against Juul Labs Inc.
They're accusing the e-cigarette manufacturer of creating a teenage
nicotine epidemic by designing, marketing and selling its products
to minors.
"This is your chance to sue the bad guys," Lawyer Joel Wright
said.
A number of school districts have been frustrated with vaping in
their schools for the last few years now, Bay District Schools
agreed to join the lawsuit against Juul during board meeting.
Joel Wright, a lawyer involved in the litigation, spoke with board
members during the meeting.
"Our group of law firms connected with some of these larger school
districts and said this reminds us of the opioid epidemic they know
what they are doing they know they are causing tremendous harm and
they don't care cause they are making a lot of money from it, so
several school districts signed up, Los Angeles, San Francisco,
Seattle, Palm Beach Florida, and we filed this lawsuit," Wright
said.
Local doctor questions proposed Walton County sales tax
Not only is vaping a distraction in schools but, more importantly,
young kids are becoming addicted at a very young age.
"Juul took nicotine, took vaping and they invented basically what
they call the iPhone of vaping," Wright said. "They made it very
simple, they made it convenient and added a number of extraordinary
flavors, they were extremely popular with kids."
In 2018, Philip Morris bought a third of Juul for $13 billion.
Wright said the team of lawyers also filed a RICO claim, meaning
that everyone that has made a profit from Juul will be held
liable.
"It is an enormous problem in the schools," BDS Attorney Franklin
Harrison said. "It is something the administrators and teachers
have to deal with on a constant basis all over the nation. They can
go in the bathrooms, in the cars, in the hallways, anywhere and use
it and we have to control all of that and try to discipline them
and it is just besides that is an awful thing for our kids to get
involved in."
The trial is set to begin on November 4. [GN]
JUUL LABS: Leon County Joins Other Districts in E-cigarette Suit
----------------------------------------------------------------
tallahassee.com reports that Leon County Schools will join more
than a thousand other school districts in the fight against one of
the most popular e-cigarette makers.
The school board voted to join a class action lawsuit with
approximately 1,400 other school districts against Juul, alleging
the e-cigarette manufacturer used unfair marketing practices to
make youth addicted to vaping products.
"This is important for us to make a stand to our community that we
are against this, and that we don't appreciate these companies
seducing our children with banana-flavored nicotine," said school
board member Rosanne Wood. "If this lawsuit prevails, and we get an
award, we'll be able to educate our students."
Juul settlement:Juul to pay nearly $440M to settle states' probe
into marketing of vaping products for teens
As of early September, 14 other school districts in Florida had
joined the lawsuit.
Leon County Schools will be represented by Kirton McConkie PC, a
law firm based out of Salt Lake City, Utah.
According to the contract, the district will owe 25% of the
settlement and 25% of any non-monetary settlement to attorneys if
the case closes by June 1, 2023. If the case closes after, that
payment increases to 30% each.
Youth vaping:36% of Santa Rosa high schoolers have tried vaping.
The school district may sue over it
Superintendent Rocky Hanna supported joining the lawsuit and said
he's spoken to students about vaping during his sit-down lunches at
middle and high schools.
"After visiting with our kids, there's there's no doubt we're doing
the right thing," Hanna said.
Juul recently agreed to pay nearly $440 million to 34 states and
territories to settle an investigation into the company's vaping
products.
The investigation found that Juul marketed its e-cigarettes to
underage teens with launch parties, giveaways and ads and social
media posts using youthful models, according to a statement from
the Connecticut's Attorney General William Tong.
Connecticut will receive a minimum of $16.2 million through the
settlement. [GN]
KIM BIMESTEFER: G.A., et al., Lose Bid to Certify Class
-------------------------------------------------------
In the class action lawsuit captioned as G.A. et al., v. Kim
Bimestefer, Case No. 1:21-cv-02381 (D. Colo.), the Hon. Judge
Regina M. Rodriguez entered an order denying without prejudice
motion to certify class.
The the Court denies without prejudice the Plaintiffs' motion for
class certification, with leave to re-file. Without commenting on
the merits of any such motion, should Plaintiffs successfully move
to amend the Complaint, the Plaintiffs may re-file their motion for
class certification within 30 days of the Court's order granting
leave to amend, the Court adds.
The suit alleges violation of the Americans With Disabilities
Act.[CC]
KIRK MILLER: Loses Bid for Partial Summary Judgment vs AP&CIC
-------------------------------------------------------------
In the class action lawsuit captioned as ALPS PROPERTY & CASUALTY
INSURANCE COMPANY, a foreign insurer, v. KIRK D. MILLER, an
individual, KIRK D. MILLER, P.S., a Washington Professional Service
corporation, BRIAN CAMERON, an individual,
SHAYNE SUTHERLAND, an individual, and CAMERON SUTHERLAND PLLC, a
Washington Professional Limited Liability Company, Case No.
2:22-cv-00064-TOR (E.D. Wash.), the Hon. Judge Thomas O. Rice
entered an order granting the plaintiff's motion for partial
summary judgment and denying the defendants' motion for partial
summary judgment.
This case concerns a legal malpractice insurance dispute. On April
7, 2022, the Plaintiff ALPS filed the present complaint seeking
declaratory relief regarding insurance coverage.
The Defendants filed counterclaims for cross-declaratory relief,
breach of contract, promissory estoppel, and the breach of duty of
good faith and fair dealing.
The parties filed motions for partial summary judgment regarding
insurance coverage and Plaintiff's alleged duty to defend. The
parties filed their respective response and reply to each motion.
Except where noted, the following facts are not in dispute.
A copy of the Court's order dated Sept. 30, 2022 is available from
PacerMonitor.com at https://bit.ly/3rDo7YB at no extra charge.[CC]
KOHL'S CORP: Court OKs Settlement Deal in Mollett Suit
------------------------------------------------------
In the class action lawsuit captioned as MARIANNA MOLLETT, v.
KOHL'S CORPORATION, Case No. 2:21-cv-00707-PP (E.D. Wisc.), the
Hon. Judge Pamela Pepper entered an order:
1. granting the plaintiffs' unopposed motion for settlement
approval;
2. approving the settlement agreement;
3. approving awards of $160,000 in attorneys' fees and $5,000
to the collective representative;
4. certifying the following Fair Labor Standards Act (FLSA)
collective for settlement purposes only:
"All current or former hourly call-center employees who
worked for the defendant in a position involved in
customer service/contact, anywhere in the United States,
at any time from August 13, 2018 through July 13, 2022,
who were identified in the timekeeping and payroll data
produced by the defendant for purposes of facilitating the
plaintiffs' and defendant's settlement discussions and all
hourly-call-center employees who have previously filed a
consent to join this lawsuit.
5. approving the FLSA notice of collective action settlement,
and the claim form;
6. dismissing with prejudice the FLSA collective members'
released FLSA claims; and
7. dismissing with prejudice the Mollet case.
Kohl's is an American department store retail chain, operated by
Kohl's Corporation.
A copy of the Court's order dated Sept. 30, 2022 is available from
PacerMonitor.com at https://bit.ly/3fEgVIT at no extra charge.[CC]
LAKE COUNTY, MT: Judge Certifies Class Lawsuit Over Jail Conditions
-------------------------------------------------------------------
Seaborn Larson at ravallirepublic.com reports that a lawsuit filed
against Lake County and the Montana governor will proceed as a
class action case on behalf of all current and future inmates of
the county jail, a federal judge ruled.
The lawsuit aimed at improving conditions at the jail began
gathering steam earlier this year, when 38 inmates saw their
complaints - hanging largely on dangerous and unsanitary
conditions, lack of health care access and refusal of religious
practices - consolidated into one case. The case now bears 54
individual plaintiffs, several of them members of the Confederated
Salish and Kootenai Tribes, whose reservation overlaps with much of
Lake County.
Constance Van Kley, one of the attorneys representing the
plaintiffs, said the class certification ensures any benefit
awarded in the lawsuit will benefit all inmates.
"If the plaintiffs succeed on their constitutional claims, all
inmates will be entitled to constitutionally adequate conditions of
confinement," Van Kley said in an email. "And if the plaintiffs
succeed but the conditions at the Lake County Jail do not improve,
all inmates will be able to enforce the judgment."
Lake County meanwhile is playing both offense and defense in the
legal arena over the conditions at its jail.
Just because the inmates' case took hold, Lake County made its own
public plea to the state for funding toward a 60-year-old
arrangement called Public Law 280, in which tribal police
coordinate with state and local law enforcement in their
jurisdiction, rather than federal law enforcement.
The state, the county argues, has not paid into the resources for
that arrangement, leaving Lake County on the $4 million hook for
expenses outside its taxable population and pushing conditions at
the jail to what local officials described as a "breaking point."
In that dispute, Lake County first sought to negotiate funding from
the state. After that approach met an impasse, the county sued the
state in July in District Court to recover the costs going back to
1963, when Public Law 280 was enacted.
In the case at hand, Lake County also filed a crossclaim against
Gov. Greg Gianforte, arguing he is responsible for the ultimate
funding and administration of the costs associated with Public Law
280.
U.S. District Court Judge Donald Molloy noted the defense argument
that many of the inmates who had filed complaints were no longer
housed at the jail, and that some of those complaints had been
varied. However, the judge noted the conditions at the jail are
suffered equally by those currently incarcerated there, as well as
those who will be housed there in the future.
"Each inmate might have a slightly different concern on a different
day, but they are all subject to living in the same conditions and
suffering the same harms," Molloy wrote. [GN]
LAS CRUCES: Faces Suit Over Illegal Debt Collection Practices
-------------------------------------------------------------
Olivier Uyttebrouck at abqjournal.com reports that a woman sued by
a Las Cruces hospital filed a counterclaim alleging that Mountain
View Regional Medical Center violated a state law that protects
low-income patients from collection actions for medical debt.
The class action counterclaim alleges that the hospital has
illegally sued more than 200 patients without first verifying
whether their income protects them from debt collection actions
under a 2021 law.
Mountain View responded in a written statement that it has policies
in place to ensure compliance with the law.
The action was filed by the New Mexico Center on Law and Poverty on
behalf of a Las Cruces woman who was sued by the hospital in July
for nonpayment of about $6,000.
"If they want to sue someone - if they want to send someone to
collections - their burden is to first check that person's income,"
said Nicolas Cordova, an attorney at the New Mexico Center on Law
and Poverty who filed the claim.
"Basically, they have to do their homework and make sure that they
legally can sue that person," he said.
Lawmakers in 2021 approved the Patient's Debt Collection Protection
Act, which prohibits collection actions against patients with a
household income less than 200% of the federal poverty level, or
$55,500 for a family of four.
Gov. Michelle Lujan Grisham signed the bill into law in April
2021.
The law also prohibits hospitals from hiring "third parties" to
perform collection actions from indigent patients.
Cordova said the counterclaim marks the first attempt to use the
law to represent a class of patients.
Mountain View Regional Medical Center responded that it has taken
steps to comply with the law.
"MountainView Regional Medical Center is aware of the requirements
of the state law regarding medical debt collection and previously
implemented policies and procedures to ensure compliance with the
law," the hospital said in a written statement.
"We are not aware of any departure from those policies and
procedures," the statement said. "We will review the allegations in
the lawsuit and work with the New Mexico Center on Law and Poverty
if the review identifies mistakes or departures from the hospital's
policies and procedures."
Mountain View Regional Medical Center is owned by Tennessee-based
Community Health Systems Inc., according to the firm's website.
Mountain View filed a lawsuit in July against Ruby Ramirez of Las
Cruces demanding payment of $6,205 for unspecified services. The
counterclaim was filed in response to that lawsuit.
"Ms. Ramirez has a qualifying income that should protect her from
this exact type of lawsuit," Cordova said. "But as with so many
other patients in New Mexico, Mountain View did not check Ms.
Ramirez's income before filing this lawsuit."
The suit against Ramirez was filed by the Missouri-based law firm
Faber & Brand, which is also named as a defendant in the
counterclaim.
The law firm unlawfully files debt collection suits on behalf of
Mountain View "without first inquiring of the hospital whether the
patients had been determined to be indigent patients," the
counterclaim alleges.
Faber & Brand did not immediately respond to email messages seeking
comment. Efforts to reach the firm by phone were not successful.
The counterclaim was filed in 3rd Judicial District Court against
Las Cruces Medical Center LLC, doing business as the Mountain View
Regional Medical Center.
It also names the Missouri law firm Faber & Brand as a defendant,
alleging the firm acts as the hospital's debt collector.
The claim asks a 3rd Judicial District Court judge to certify the
case as a class action on behalf of at least 200 indigent patients
sued by Mountain View since the law took effect on July 1, 2021.
It also asks the judge to order the hospital to stop filing
lawsuits without checking patients' income status, to dismiss
pending lawsuits against indigent patients, and return money it
received by garnishing patients' wages. [GN]
LAUNDRY DEPOT: Leong Seeks to Certify Rule 23 Class Action
----------------------------------------------------------
In the class action lawsuit captioned as NYOK MOY LEONG, on behalf
of herself and others similarly situated, v. LAUNDRY DEPOT, LLC, et
al., Case No. 2:19-cv-03545-HG-PK (E.D.N.Y.), the Plaintiff asks
the Court to enter an order:
1. certifying this action as a class action pursuant
to Rule 23 of the Federal Rules of Civil Procedure;
2. appointing him as class representative;
3. appointing Troy Law, PLLC and its attorneys John Troy,
Aaron B. Schweitzer, and Tiffany as class counsel;
4. permitting him to circulate a notice of class action by
direct mail to class members and by publication; and
5. granting such other and further relief as the Court shall
deem just and proper.
The Defendants include d/b/a Laundry Depot Four, LAUNDRY DEPOT No.
IV, LLC d/b/a Laundry Depot, LAUNDRY DEPOT No. V, LLC d/b/a Laundry
Depot, FA SUPER LAUNDROMAT CORP. d/b/a Laundry Depot Fifth Avenue,
LAUNDRY DEPOT II LLC d/b/a Laundry Depot Fifth Avenue d/b/a Laundry
Depot, EAST ISLIP SUPER LAUNDROMAT CORP. d/b/a Laundry Depot, ITP
LAUNDROMAT CORP d/b/a I.T.P. Laundromat, LAUNDRY DEPOT, III LLC
d/b/a Laundry Depot, BAYSHORE LAUNDRY, LLC d/b/a Laundry Depot
d/b/a/ South Shore Laundromat, NGAI LAU a/k/a Tommy Lau a/k/a Ngai
Lau, JENNY QIANJUN LAU a/k/a Jenny Lau a/k/a Qianjun Lau, EILEEN
ZHANG, and SING OI LAU a/k/a Oi Sing Lau.
A copy of the Plaintiff's motion to certify class dated Oct. 3,
2022 is available from PacerMonitor.com at https://bit.ly/3T9EqIe
at no extra charge.[CC]
The Plaintiff is represented by:
Aaron B. Schweitzer, Esq.
John Troy, Esq.
Tiffany Troy, Esq.
TROY LAW, PLLC
41-25 Kissena Boulevard, Suite 103
Flushing, NY 11355
Telephone: (718) 762-1324
E-mail: troylaw@troypllc.com
LAWN ENFORCEMENT: Conditional Status of Collective Action Sought
----------------------------------------------------------------
In the class action lawsuit captioned as Alfredo Teran, Eliberto
Perez Ambrosio, Baltazar Calderon, Jr., Ismael Guel, Patricio
Martinez, Ricardo Teran, Trinidad Teran, Xavier Teran, on behalf of
themselves and all others similarly situated, v. Lawn Enforcement,
Inc., Jamie Walker, individually, and Jason Braden, individually,
Case No. 2:22-cv-02338-JTF-tmp (W.D. Tenn.), the Plaintiffs ask the
Court to enter an order:
1. granting authorization to proceed case as a collective
action for overtime violations under the Fair Labor
Standards Act (FLSA), on behalf of themselves and
similarly-situated past and present Lawn Enforcement, Inc.
employees, with the collective to be defined as follows:
"all individuals employed by Lawn Enforcement from June 8,
2019 to present and compensated on an hourly basis who
were denied the statutorily required overtime premium for
all hours worked in excess of forty hours in a work week;"
2. directing the Defendants to produce to the Plaintiffs'
counsel within 10 days of the Order granting this Motion a
list containing the names, the last known addresses, last
known email addresses, and phone numbers for hourly-paid
personnel employed by Defendants from June 8, 2019 to
present;
3. granting authorization to send notice and consent to join,
to all individuals whose names appear on the list produced
by the Defendants' counsel by first-class mail and email
so that they can assert their claims on a timely basis as
part of this litigation; and
4. tolling the statute of limitations for the putative class
as of the date this action was filed.
Lawn Enforcement is a professional full service local lawn care /
landscaping, skid steer, company in Martinsburg, West Virginia,
Charles Town.
A copy of the Plaintiffs' motion dated Sept. 30, 2022 is available
from PacerMonitor.com at https://bit.ly/3SG60gu at no extra
charge.[CC]
The Plaintiffs are represented by:
Philip Oliphant, Esq.
Alan G. Crone, Esq.
THE CRONE LAW FIRM, PLC
88 Union Avenue, 14 th Floor
Memphis, TN 38103
Telephone: (901) 737-7740
Facsimile: (901) 474-7926
E-mail: acrone@cronelawfirmplc.com
poliphant@cronelawfirmplc.com
LAWPRACTICECLE LLC: Bid to Certify Class Tossed as Moot in Goren
----------------------------------------------------------------
In the class action lawsuit captioned as Goren v. LawPracticeCLE,
L.L.C., Case No. 8:21-cv-01503 (M.D. Fla.), the Hon. Judge William
F. Jung entered an endorsed order denying as moot motion to certify
class.
The suit alleges violation of the Americans with Disabilities Act.
LawPracticeCLE is a national continuing legal education
company.[CC]
LENNAR CORP: Catenac Alleges Breach of Fiduciary Duties Under ERISA
-------------------------------------------------------------------
GARY CATENAC and AYANA KNOWLES, individually and as representatives
of a class of participants and beneficiaries on behalf of the
Lennar Corporation 401(K) Plan, Plaintiffs v. LENNAR CORPORATION,
Defendant, Case No. 1:22-cv-23232-KMW (S.D. Fla., Oct. 5, 2022) is
a class action against the Defendant for breaching its fiduciary
duties of prudence in violation of the Employee Retirement Income
Security Act.
According to the complaint, the Defendant's Lennar Corporation
401(K) Plan has tremendous leverage to secure low fees and
excellent investment options for Plan participants and
beneficiaries including Plaintiffs. However, instead of leveraging
the Plan's tremendous bargaining power to benefit participants and
beneficiaries, the Defendant caused the Plan to pay excessive fees
and compensation to Prudential Retirement Insurance and Annuity
Company.
The complaint asserts that the Defendant violated its ERISA's duty
of prudence in three important ways. First, Defendant caused the
Plan and its participants to pay Prudential excessive and
unreasonable fees for administrative services. The Defendant caused
the Plan and its participants to pay Prudential more than triple
the market rate for administrative services. Second, the Defendant
selected and retained on the Plan investment menu the Prudential
Stable Value Fund. As a result, there is more Plan participant
money in the imprudent Prudential Stable Value Fund than in any
other investment offered by the Plan. Third, whenever a Plan
participant deposits or withdraws money from his/her Plan account,
the money is transferred to a clearing account owned by Prudential.
The money is in Prudential's possession, usually for several days
while, until eventually the money is directed to wherever Plan
participants initially requested. The Plaintiffs allege that
Defendant never monitored, tracked, negotiated, or factored the
amount of float income that Prudential was receiving from Plan
participants when assessing Prudential's compensation from the
Plan.
Lennar Corporation is a home construction company based in the
census-designated place of Fontainebleau, Florida. Lennar is the
Plan sponsor and a statutory fiduciary of the Plan within the
meaning of ERISA.[BN]
The Plaintiffs are represented by:
Brandon J. Hill, Esq.
Luis A. Cabassa, Esq.
Amanda E. Heystek, Esq.
WENZEL FENTON CABASSA, P.A.
1110 N. Florida Avenue, Suite 300
Tampa, FL 33602
Telephone: (813) 224-0431
Facsimile: (813) 229-8712
E-mail: bhill@wfclaw.com
lcabassa@wfclaw.com
aheystek@wfclaw.com
gnichols@wfclaw.com
- and -
Marc R. Edelman, Esq.
MORGAN & MORGAN, P.A.
201 N. Franklin Street, Suite 700
Tampa, FL 33602
Telephone: (813) 223-5505
Facsimile: (813) 257-0572
E-mail: medelman@forthepeople.com
LINCOLN NATIONAL: Amended Scheduling Order Entered in Bharwani Suit
-------------------------------------------------------------------
In the class action lawsuit captioned as BHARWANI, et al v. LINCOLN
NATIONAL CORP. et al., Case No. 2:16-cv-06605-GJP (E.D. Pa.), the
Hon. Judge Gerald J. Pappert Jr., entered an amended scheduling
order as follows:
1. Class Plaintiffs' New Motion December 21, 2022
for Class Certification shall
be filed on or before:
2. Opening expert reports on December 21, 2022
issues where parties have the
burden of proof due on or
before:
3. The parties' shall produce December 23, 2022
materials relied on by
experts in opening reports
on or before:
4. Rebuttal expert reports due February 10, 2023
on or before:
5. The parties' shall produce February 14, 2023.
materials relied on by
experts in rebuttal reports
on or before:
6. Expert Discovery shall be May 3, 2023
completed on or before:
7. Defendants' opposition to May 24, 2023.
New Motion for Class
Certification, and any
Daubert Motion relating to
expert opinions relied upon
by Class Plaintiffs in
connection with class
certification shall be filed
on or before:
8. Class Plaintiffs' Reply in June 9, 2023
Support of New Motion for
Class Certification, and
Opposition to Defendants'
Daubert Motion(s) shall be
filed on or before:
9. Class Plaintiffs' Daubert June 9, 2023
Motion(s) relating to expert
opinions relied upon by
the Defendants in connection
with class certification
shall be filed on or before:
10. Defendants' Reply in support June 23, 2023
of any Daubert Motion and
Opposition to any Daubert
Motion Plaintiffs file shall
be filed on or before:
11. The Plaintiffs' Reply in July 7, 2023
Support of any Daubert Motion
shall be filed on or before:
A copy of the Court's order dated Oct. 3, 2022 is available from
PacerMonitor.com at https://bit.ly/3SNxeBZ at no extra charge.[CC]
LINCOLN NATIONAL: Amended Scheduling Order Entered in COI Rate Suit
-------------------------------------------------------------------
In the class action lawsuit re: LINCOLN NATIONAL 2017 COI RATE
LITIGATION, Case No. 2:17-cv-04150-GJP (E.D. Pa.), the Hon. Judge
Gerald J. Pappert Jr., entered an amended scheduling order as
follows:
1. Class Plaintiffs' New Motion December 21, 2022
for Class Certification shall
be filed on or before:
2. Opening expert reports on December 21, 2022
issues where parties have the
burden of proof due on or
before:
3. The parties' shall produce December 23, 2022
materials relied on by
experts in opening reports
on or before:
4. Rebuttal expert reports due February 10, 2023
on or before:
5. The parties' shall produce February 14, 2023.
materials relied on by
experts in rebuttal reports
on or before:
6. Expert Discovery shall be May 3, 2023
completed on or before:
7. Defendants' opposition to May 24, 2023.
New Motion for Class
Certification, and any
Daubert Motion relating to
expert opinions relied upon
by Class Plaintiffs in
connection with class
certification shall be filed
on or before:
8. Class Plaintiffs' Reply in June 9, 2023
Support of New Motion for
Class Certification, and
Opposition to Defendants'
Daubert Motion(s) shall be
filed on or before:
9. Class Plaintiffs' Daubert June 9, 2023
Motion(s) relating to expert
opinions relied upon by
the Defendants in connection
with class certification
shall be filed on or before:
10. Defendants' Reply in support June 23, 2023
of any Daubert Motion and
Opposition to any Daubert
Motion Plaintiffs file shall
be filed on or before:
11. The Plaintiffs' Reply in July 7, 2023
Support of any Daubert Motion
shall be filed on or before:
A copy of the Court's order dated Oct. 3, 2022 is available from
PacerMonitor.com at https://bit.ly/3Vc0jsl at no extra charge.[CC]
LINCOLN NATIONAL: Amended Scheduling Order Entered in EFG Bank Suit
-------------------------------------------------------------------
In the class action lawsuit captioned as EFG BANK AG, CAYMAN
BRANCH, et al., v. THE LINCOLN NATIONAL LIFE INSURANCE COMPANY,
Case No. 2:17-cv-02592-GJP (E.D. Pa.), the Hon. Judge Gerald J.
Pappert Jr., entered an amended scheduling order as follows:
1. Class Plaintiffs' New Motion December 21, 2022
for Class Certification shall
be filed on or before:
2. Opening expert reports on December 21, 2022
issues where parties have the
burden of proof due on or
before:
3. The parties' shall produce December 23, 2022
materials relied on by
experts in opening reports
on or before:
4. Rebuttal expert reports due February 10, 2023
on or before:
5. The parties' shall produce February 14, 2023.
materials relied on by
experts in rebuttal reports
on or before:
6. Expert Discovery shall be May 3, 2023
completed on or before:
7. Defendants' opposition to May 24, 2023.
New Motion for Class
Certification, and any
Daubert Motion relating to
expert opinions relied upon
by Class Plaintiffs in
connection with class
certification shall be filed
on or before:
8. Class Plaintiffs' Reply in June 9, 2023
Support of New Motion for
Class Certification, and
Opposition to Defendants'
Daubert Motion(s) shall be
filed on or before:
9. Class Plaintiffs' Daubert June 9, 2023
Motion(s) relating to expert
opinions relied upon by
the Defendants in connection
with class certification
shall be filed on or before:
10. Defendants' Reply in support June 23, 2023
of any Daubert Motion and
Opposition to any Daubert
Motion Plaintiffs file shall
be filed on or before:
11. The Plaintiffs' Reply in July 7, 2023
Support of any Daubert Motion
shall be filed on or before:
A copy of the Court's order dated Oct. 3, 2022 is available from
PacerMonitor.com at https://bit.ly/3fUzQiX at no extra charge.[CC]
LLOYD AUSTIN: Military Chaplains Seek Class Certification
---------------------------------------------------------
In the class action lawsuit captioned as ISRAEL ALVARADO, et al.,
v. LLOYD AUSTIN, III, et al., Case No. 1:22-cv-00876-AJT-JFA (E.D.
Va.), the 42 military chaplain Plaintiffs, on behalf of themselves
and similarly situated class members, respectfully move the Court
to enter an order certifying the following class and subclasses
under Rule 23(b)(2) of the Federal Rules of Civil Procedure:
-- Military Chaplain Class
"the class of all military chaplains who are subject to
the Department of Defense's (DOD) COVID-19 vaccine
mandate and who have submitted a Religious Accommodation
Request (RAR);"
-- Constructively Discharged Subclass
"a subclass of the Military Chaplain Class who have
sufficient time in service to retire and who do not wish
to retire, but are faced with the draconian threat either
to retire or face disciplinary actions and forfeit
everything they have worked for their entire careers"
-- Sanctuary Subclass
"a subclass of the Military Chaplain Class who have
reached or almost reached 18 years of service, entitling
them to "sanctuary" status until they reach 20 years of
service and are eligible for retirement;" and
-- Natural Immunity Subclass
"a subclass of the Military Chaplain Class who have
natural immunity from a previous documented COVID-19
infection and should be eligible either for religious
accommodation or a medical exemption."
The Plaintiffs further request that the Court enter an order:
1. appointing Plaintiffs' counsel as class counsel under
Rule 23(g) of the Federal Rules of Civil Procedure, and
2. designating twelve specific identified plaintiffs as Class
and subclass Representatives.
A copy of the Plaintiffs' motion dated Sept. 30, 2022 is available
from PacerMonitor.com at https://bit.ly/3ecTvtX at no extra
charge.[CC]
The Plaintiff is represented by:
Arthur A. Schulcz, Sr.
CHAPLAINS COUNSEL, PLLC
21043 Honeycreeper Place
Leesburg, VA 20175
Telephone: (703) 645-4010
E-mail: art@chaplainscounsel.com
- and -
Brandon Johnson, Esq.
DEFENDING THE REPUBLIC
2911 Turtle Creek Blvd., Suite 300
Telephone: (214) 707-1775
E-mail: bcj@defendingtherepublic.org
- and -
J. Andrew Meyer, Esq.
FINN LAW GROUP, P.A.
8380 Bay Pines Blvd
St. Petersburg, Florida 33709
Telephone.: (727) 709-7668
E-mail: ameyer@finnlawgroup.com
LLOYD AUSTIN: Scheduling Order Entered in Alvarado Class Suit
-------------------------------------------------------------
In the class action lawsuit captioned as ISRAEL ALVARADO, et al.,
v. LLOYD AUSTIN, III, et al., Case No. 1:22-cv-00876-AJT-JFA (E.D.
Va.), the Hon. Judge Anthony J. Trenga entered an order granting
the Consent Motion to Grant Scheduling Order:
-- The Defendants shall file their Opposition on or before
October 21, 2022; and
-- The Plaintiffs shall file a Reply on or before October 31,
2022.
A copy of the Court's order dated Oct. 3, 2022 is available from
PacerMonitor.com at https://bit.ly/3s0l3WR at no extra charge.[CC]
MARATHON OIL: Kunneman, et al., Seek to Certify Settlement Class
----------------------------------------------------------------
In the class action lawsuit captioned as Kunneman Properties, LLC,
et al., on behalf of themselves and all others similarly situated,
v. Marathon Oil Company, Case No. 6:22-cv-00274-KEW (E.D. Okla.),
the Plaintiff asks the Court to enter an order:
1. certifying the Settlement Class for settlement purposes;
2. preliminarily approving the Settlement;
3. appointing the Plaintiffs as Class Representatives for the
Settlement Class;
4. appointing Reagan E. Bradford and Ryan K. Wilson, of
Bradford & Wilson PLLC, and Rex A. Sharp, of Sharp Law,
LLP, as Co-Lead Class Counsel for the Settlement Class;
5. approving the form and manner of the proposed Notices;
6. appointing a Settlement Administrator;
7. appoint an Escrow Agent; and
8. setting a hearing date for final approval of the
Settlement and application for an award of Plaintiffs'
Attorneys' Fees, Litigation Expenses and Administration,
Notice, and Distribution Costs, and a Case Contribution
Award to Plaintiffs.
This case has been fiercely litigated for five years, as reflected
by the attached docket sheet from the Northern District of
Oklahoma. Rather than closely detail each and every development --
all of which are reflected on Exhibit 2—Plaintiffs provide a
high-level summary of the major events in the litigation to date.
The Plaintiffs initiated this case in on August 7, 2017, in the
Northern District of Oklahoma, alleging that the Defendant
underpaid royalty under Oklahoma law by improperly deducting costs
necessary to place natural gas in marketable condition.
On September 11, 2017, the Defendant filed a combined motion to
dismiss or motion to transfer venue. On January 9, 2018, the Court
denied Defendant’s motion to transfer venue. The parties then
began engaging in discovery, and Plaintiffs filed their First
Motion to Compel on July 9, 2019, and the motion was fully briefed
by August 27.
The Settlement consists of a cash payment of $35 million as well as
a go-forward agreement that delineates, for a period of 10 years,
the costs that Defendant can and cannot deduct from the Settlement
Class's royalty payments. The Plaintiffs and their counsel submit
that this agreement presents an outstanding recovery for the
Settlement Class, both in terms of the upfront cash and the
go-forward benefits and clarity.
A copy of the Plaintiff's motion dated Oct. 4, 2022 is available
from PacerMonitor.com at https://bit.ly/3EucRW4 at no extra
charge.[CC]
The Plaintiff is represented by:
Reagan E. Bradford, Esq.
Ryan K. Wilson, Esq.
BRADFORD & WILSON PLLC
431 W. Main Street, Suite D
Oklahoma City, OK 73102
Telephone: (405) 698-2770
E-mail: reagan@bradwil.com
ryan@bradwil.com
– and –
Rex A. Sharp, Esq.
Ryan C. Hudson, Esq.
Scott B. Goodger, Esq.
HARP LAW, LLP
5301 W. 75th Street
Prairie Village, KS 66208
Telephone: (913) 901-0505
Facsimile: (913) 901-0419
E-mail: rsharp@midwest-law.com
rhudson@midwest-law.com
sgoodger@midwest-law.com
MARYGOLD COMPANIES: Seeks Dismissal from Lucas Class Action
-----------------------------------------------------------
The Marygold Companies Inc. disclosed in its Form 10-K Report for
the fiscal year ended June 30, 2022 filed with the Securities and
Exchange Commission on September 28, 2022, that the defendants
moved for their dismissal in the "Amended Lucas Class Complaint."
On June 19, 2020, USCF, USO, John P. Love, and Stuart P. Crumbaugh
were named as defendants in a putative class action filed by
purported shareholder Robert Lucas (the "Lucas Class Action"). The
Court thereafter consolidated the Lucas Class Action with two
related putative class actions filed on July 31, 2020 and August
13, 2020, and appointed a lead plaintiff.
The consolidated class action is pending in the U.S. District Court
for the Southern District of New York under the caption In re:
United States Oil Fund, LP Securities Litigation, Civil Action No.
1:20-cv-04740.
On November 30, 2020, the lead plaintiff filed an amended complaint
(the "Amended Lucas Class Complaint"). The Amended Lucas Class
Complaint asserts claims under the 1933 Act, the 1934 Act, and Rule
10b-5.
The Amended Lucas Class Complaint challenges statements in
registration statements that became effective on February 25, 2020
and March 23, 2020 as well as subsequent public statements through
April 2020 concerning certain extraordinary market conditions and
the attendant risks that caused the demand for oil to fall
precipitously, including the COVID-19 global pandemic and the Saudi
Arabia-Russia oil price war. The Amended Lucas Class Complaint
purports to have been brought by an investor in USO on behalf of a
class of similarly-situated shareholders who purchased USO
securities between February 25, 2020 and April 28, 2020 and
pursuant to the challenged registration statements. The Amended
Lucas Class Complaint seeks to certify a class and to award the
class compensatory damages at an amount to be determined at trial
as well as costs and attorney's fees. The Amended Lucas Class
Complaint named as defendants USCF, USO, John P. Love, Stuart P.
Crumbaugh, Nicholas D. Gerber, Andrew F Ngim, Robert L. Nguyen,
Peter M. Robinson, Gordon L. Ellis, and Malcolm R. Fobes III, as
well as the marketing agent, ALPS Distributors, Inc., and the
Authorized Participants: ABN Amro, BNP Paribas Securities
Corporation, Citadel Securities LLC, Citigroup Global Markets,
Inc., Credit Suisse Securities USA LLC, Deutsche Bank Securities
Inc., Goldman Sachs & Company, J.P. Morgan Securities Inc., Merrill
Lynch Professional Clearing Corporation, Morgan Stanley & Company
Inc., Nomura Securities International Inc., RBC Capital Markets
LLC, SG Americas Securities LLC, UBS Securities LLC, and Virtu
Financial BD LLC.
The lead plaintiff has filed a notice of voluntary dismissal of its
claims against BNP Paribas Securities Corporation, Citadel
Securities LLC, Citigroup Global Markets Inc., Credit Suisse
Securities USA LLC, Deutsche Bank Securities Inc., Morgan Stanley &
Company, Inc., Nomura Securities International, Inc., RBC Capital
Markets, LLC, SG Americas Securities LLC, and UBS Securities LLC.
USCF, USO, and the individual defendants in In re: United States
Oil Fund, LP Securities Litigation intend to vigorously contest
such claims and have moved for their dismissal.
MATTERPORT INC: Wins Bid to Strike Stemmelin Bid to Certify Class
-----------------------------------------------------------------
In the class action lawsuit captioned as JOHN STEMMELIN v.
MATTERPORT, INC., et al., Case No. 3:20-cv-04168-WHA (N.D. Cal.),
the Hon. Judge William Alsup entered an order that:
-- the motion to strike is granted, and
-- the second class certification motion is stricken.
In this false and deceptive advertising action, the plaintiff seeks
a second opportunity to certify a national class of those who
enrolled in the defendant's 3D camera partner program, this time
under Rule 23(b)(2). The Defendant moves to strike plaintiff's
motion. To the following extent, the motion to strike is granted.
In brief, the plaintiff John Stemmelin brought this lawsuit against
Matterport and its officers as a putative class action in June
2020, alleging violations of unfair and false advertising laws as
well as numerous states' business opportunity laws connected to
Matterport's 3D camera business.
Matterport operates as a software company.
A copy of the Court's order dated Oct. 3, 2022 is available from
PacerMonitor.com at https://bit.ly/3Vhd5FS at no extra charge.[CC]
MDL 2151: Ye v. Toyota Motor Suit Transferred to C.D. Cal.
----------------------------------------------------------
In the products liability litigation captioned IN RE: TOYOTA MOTOR
CORP. UNINTENDED ACCELERATION MARKETING, SALES PRACTICES, AND
PRODUCTS LIABILITY LITIGATION, MDL No. 2151, Chairperson Karen K.
Caldwell of the U.S. Judicial Panel on Multidistrict Litigation has
entered an order transferring the case captioned "Ye v. Toyota
Motor North America," C.A. No. 7:22−00695, to the U.S. District
Court for the Central District of California and assigned to Judge
James V. Selna for inclusion in the coordinated or consolidated
pretrial proceedings.
The actions in this litigation involve allegations of a defect in
certain Toyota vehicles that causes sudden, unintended
acceleration.
Ye moved to vacate the order that conditionally transferred her
action to the Central District of California for inclusion in MDL
No. 2151. Defendant Toyota Motor North America opposed the motion
to vacate. Ye argued "health reasons," and that the transferee
district is too far from her state of residence.
The panel held repeatedly that transfer of a particular action
often is necessary to further the expeditious resolution of the
litigation taken as a whole, even if it might inconvenience some
parties to that action and added that the transfer may benefit the
Plaintiff by providing her access to the common discovery already
produced in the litigation.
A full-text copy of the court's October 7, 2021 transfer order is
available at https://bit.ly/3TfKrTT
MDL 2627: Stein v. LL Flooring Suit Transferred to E.D. Va.
-----------------------------------------------------------
In the products liability litigation captioned IN RE: LUMBER
LIQUIDATORS CHINESE-MANUFACTURED FLOORING PRODUCTS MARKETING, SALES
PRACTICES AND PRODUCTS LIABILITY LITIGATION, MDL No. 2627,
Chairperson Karen K. Caldwell of the U.S. Judicial Panel on
Multidistrict Litigation entered an order transferring the case
captioned "Stein v. LL Flooring, Inc., et al.," C.A. No.
2:22−04736 to the U.S. District Court for the Eastern District of
Virginia and assigned to Judge Anthony J. Trenga for inclusion in
the coordinated or consolidated pretrial proceedings.
The Actions in this litigation involve allegations that the
defendants' laminate flooring emits illegal and unsafe levels of
formaldehyde, a known carcinogen, despite being marketed as
compliant with regulations of the California Air Resources Board
and other applicable regulations. Stein brings wrongful death
claims in connection with alleged injuries her daughter suffered
arising from Lumber Liquidators' Chinese-manufactured laminate
flooring, which plaintiff alleges emitted excessive levels of
formaldehyde.
Plaintiff opposed transfer for three reasons. First, she stresses
that she does not bring claims on behalf of her late daughter's
estate, so the transferee judge's previous dismissal order does not
apply to her claims. Second, she argued that she does not seek
recovery for personal injuries to the decedent but instead for her
own loss of relations with the decedent. Finally, plaintiff argued
that transfer of her California-based case is inconvenient to all
parties except defendant, which prefers litigating in its home
district.
The panel held that the underlying facts of the current Stein
action are without doubt related to the core controversy of the
MDL. The Stein personal injury action proceeded from its filing in
September 2016 through expert discovery until plaintiff died in
October 2018, which suggests that the transferee judge will be
familiar with the allegations in the current wrongful death action.
In his order dismissing the personal injury claims, the transferee
judge clearly expressed his concern that LL Flooring would suffer
prejudice and placed limits on future actions brought by or on
behalf of plaintiff's estate to prevent such prejudice. That the
current wrongful death action is brought by decedent's mother, a
surviving heir (who was not a party to the initial action and was
not before the court), and not the decedent's estate is an
irrelevant distinction, given the extensive factual overlap with
the MDL cases.
A full-text copy of the court's October 7, 2021 transfer order is
available at https://bit.ly/3RT1REU
MDL 2846: Montalbano v. Honor Health Suit Transferred to S.D. Ohio
------------------------------------------------------------------
In the products liability litigation captioned IN RE: DAVOL,
INC./C.R. BARD, INC., POLYPROPYLENE HERNIA MESH PRODUCTS LIABILITY
LITIGATION, MDL No. 2846, Chairperson Karen K. Caldwell of the U.S.
Judicial Panel on Multidistrict Litigation, entered an order
transferring the case captioned "Montalbano v. Honor Health, et
al.," C.A. No. 2:22−01112 to the Southern District of Ohio and
assigned to Judge Edmund A. Sargus, Jr. for inclusion in the
coordinated or consolidated pretrial proceedings.
The Actions in this litigation involve factual questions arising
out of allegations that defects in defendants' polypropylene hernia
mesh products can lead to complications when implanted in patients
including, inter alia, adhesions, damage to organs and infections.
Montalbano moved to vacate said order that conditionally
transferred his action to the Southern District of Ohio for
inclusion in MDL No. 2846. Defendant C.R. Bard, Inc. (Bard) opposed
the motion. The panel established that this action involves common
questions of fact with the actions transferred to MDL No. 2846, and
that transfer will serve the convenience of the parties and
witnesses and promote the just and efficient conduct of the
litigation. In support of the motion to vacate, Plaintiff argued
that removal of the action was improper and the transferor court
should decide his motion for remand to state court. However, the
Panel held that jurisdictional objections generally do not present
an impediment to transfer.
A full-text copy of the court's October 6, 2021 transfer order is
available at https://bit.ly/3eqgvpq
MDL 2873: Court Vacates Transfer Order in Circle K v. Johnson
-------------------------------------------------------------
In the product liability litigation captioned "In Re: Aqueous
Film-Forming Foams Products Liability Litigation," MDL No. 2873,
Judge Karen K. Caldwell, Chairperson of the U.S. Judicial Panel on
Multidistrict Litigation has entered an order vacating a
conditional transfer order.
Plaintiff Circle K Terminal Alabama, LLC, moved to vacate the order
that conditionally transferred Circle K Terminal Alabama LLC v.
Johnson Controls, Inc., C.A. No. 2:22—00583 (Northern District of
Alabama) to the District of South Carolina for inclusion in MDL No.
2873. Defendant Johnson Controls, Inc. (JCI), and non-parties Tyco
Fire Products LC and Chemguard, Inc., opposed the motion.
MDL No. 2873 involves allegations that aqueous film-forming foams
(AFFFs) used at airports, military bases, or other locations to
extinguish liquid fuel fires caused the release of perfluorooctane
sulfonate (PFOS) and/or perfluorooctanoic acid (PFOA; collectively,
these and other per- or polyfluoroalkyl substances are referred to
as PFAS) into local groundwater and contaminated drinking water
supplies. Circle K Terminal, however, alleges that a JCI employee,
either negligently or recklessly, activated the fire suppression
system at plaintiff's fuel terminal while conducting a routine
inspection of the system, that it had to engage an environmental
services company to contain the spread of the foam, which caused a
suspension of terminal operations. Circle K seeks to recover
damages to the terminal, the costs of the clean-up, and lost sales.
Unlike other actions transferred to the MDL and involving a single
release of AFFF, Circle K does not allege that groundwater at or
near the site was contaminated, nor does it allege that first
responders were injured by exposure to AFFF.
This action appears primarily to be about the alleged negligence of
JCI in its operation of the fire suppression at the terminal, not
the potential environmental or individual harm posed by the AFFF
itself.
The opposing parties argued that Circle K Terminal will share
common questions of fact with the cases in the MDL, such as
questions relating to the toxicity, health effects, and chemical
properties of PFAS. It is true that the complaint makes passing
mention of plaintiff's potential liability if the AFFF release is
later found to have caused groundwater contamination. But the
complaint, as currently presented, is overwhelmingly directed at
JCI's allegedly negligent or reckless actions that caused the
release of the foam and the immediate damages this caused to the
operation of the fuel terminal. There is no allegation that the
toxicity of the foam is the cause of plaintiff's damages, except to
the extent that it made the clean-up more expensive. It thus
appears unlikely that Circle K Terminal will entail significant
overlap in discovery or pretrial proceedings with the actions in
the MDL. Both the MDL and Circle K Terminal will proceed more
efficiently if Circle K Terminal remains outside the MDL, says the
Panel.
Accordingly, after considering the parties' arguments, the Panel
finds that transfer of the action will not serve the convenience of
the parties and witnesses or promote the just and efficient conduct
of the litigation without foreclosing the possibility that
discovery and pleading practice in Circle K Terminal may
demonstrate that transfer of this action to the MDL ultimately is
warranted. But, based upon consideration of the pleadings, it must
appear that transfer to the MDL will enhance efficiency and
convenience of the litigation. Should Circle K Terminal evolve into
a more typical AFFF action, the parties or the court at that time
can re-notice the action for transfer to MDL No. 2873 as a
potential tag-along.
A full-text copy of the court's October 5, 2022 order to vacate is
available at https://bit.ly/3CNNHR1
MDL 2913: Northwest Allen Cty Schools Sues Over E-Cigarette Crisis
------------------------------------------------------------------
Northwest Allen County Schools, on behalf of itself and all others
similarly situated, Plaintiff v. JUUL Labs, Inc. F/K/A PAX Labs,
Inc.; James Monsees; Adam Bowen; Nicholas Pritzker; Hoyoung Huh;
Riaz Valani; Altria Group, Inc.; Altria Client Services LLC; Altria
Group Distribution Company; AND Philip Morris USA, Inc. Defendants,
Case No. 3:22-cv-05699 (N.D. Cal., Oct. 4, 2022) is a class action
against the Defendants for negligence, gross negligence, and
violations of the Indiana Public Nuisance Law and the Racketeer
Influenced and Corrupt Organizations Act.
According to the complaint, the Defendants used three tactics to
maintain market dominance in the cigarette industry: (1) product
design to maximize addiction, (2) mass deception, and (3) targeting
of youth. Defendants JUUL Labs and Adam Bowen designed an
e-cigarette device allegedly intended to create and sustain
addiction, but without the stigma associated with cigarettes and
promoted them to vulnerable young population. JUUL Labs and other
Defendants developed and implemented a marketing scheme to mislead
users into believing that JUUL products contained less nicotine
than they actually do and were healthy and safe. The Defendants
enticed newcomers to nicotine with kid-friendly flavors without
ensuring the flavoring additives were safe for inhalation. The
Defendants targeted the youth market by placing vaporized campaigns
on youth-oriented websites and media and using influencers and
affiliates to amplify their message to a teenage audience. The
Defendants have successfully caused more young people to start
using e-cigarettes, creating a youth e-cigarette epidemic and
public health crisis, says the suit.
The Northwest Allen County Schools case has been consolidated in
MDL No. 2913, IN RE: JUUL LABS, INC. MARKETING, SALES PRACTICES,
AND PRODUCTS LIABILITY LITIGATION. The case is assigned to the Hon.
Judge William H. Orrick.
Northwest Allen County Schools is a public school district serving
approximately 8,100 students. The Plaintiff's administrative
offices are in Fort Wayne, Indiana.
JUUL Labs, Inc., formerly known as Pax Labs, Inc., is an American
electronic cigarette company, with its principal place of business
in San Francisco, California.[BN]
The Plaintiff is represented by:
Thomas P. Cartmell, Esq.
Jonathan P. Kieffer, Esq.
Tyler W. Hudson, Esq.
WAGSTAFF & CARTMELL LLP
4740 Grand Ave., Ste. 300
Kansas City, MO 64112
Telephone: (816) 701-1100
Facsimile: (816) 531-2372
E-mail: tcartmell@wcllp.com
jpkieffer@wcllp.com
thudson@wcllp.com
- and -
Rahul Ravipudi, Esq.
PANISH SHEA & BOYLE LLP
11111 Santa Monica Boulevard, Suite 700
Los Angeles, California 90025
Telephone: (310) 477-1700
Facsimile: (310) 477-1699
- and -
Khaldoun Baghdadi, Esq.
WALKUP MELODIA KELLY & SCHOENBERGER, P.C.
650 California Street, 26th Floor
San Francisco, CA 94108
Telephone: (415) 617-1269
E-mail: kbaghdadi@walkuplawoffice.com
- and -
Andy D. Birchfield, Jr., Esq.
Joseph G. VanZandt, Esq.
BEASLEY ALLEN CROW METHVIN PORTIS & MILES, LLC
234 Commerce Street
Montgomery, AL 36103
Telephone: (334) 269-2343
E-mail: Andy.Birchfield@BeasleyAllen.com
Joseph.VanZandt@BeasleyAllen.com
- and -
John P. Fiske, Esq.
BARON & BUDD, P.C.
11440 West Bernardo Court Suite 265
San Diego, CA 92127
Telephone: (858) 251-7424
Facsimile: (214) 520-1181
E-mail: jfiske@baronbudd.com
MDL 3014: Newsome v. Philips Transferred to W.D. Pa.
----------------------------------------------------
Judge Karen K. Caldwell, Chairperson of the U.S. Judicial Panel on
Multidistrict Litigation, ordered the consolidation of case
captioned "Newsome et al. v. Philips North America LLC, et al.,"
C.A. No. 4:22−04101 to the multi-district action captioned "In
Re: Philips Recalled CPAP, Bi-Level PAP and Mechanical Ventilator
Products Liability Litigation," MDL No. 3014, in U.S. District
Court for the Western District of Pennsylvania.
Plaintiffs moved to vacate the transfer order to the Western
District of Pennsylvania for inclusion in MDL No. 3014 while
defendants opposed this motion. The actions in the MDL assert
overlapping claims for violations of state consumer protection
statutes, breach of warranties and unjust enrichment arising from
recalled ventilators and the potential harm that can be caused by
their alleged inherent defect.
Plaintiffs argued that federal subject matter jurisdiction over
said case is lacking and the transferor court should decide their
pending remand motion before any transfer, but the Panel held that
this is not an impediment to transfer.
A full-text copy of the court's October 5, 2022 order is available
at https://bit.ly/3VaWkfA
MDL 3026: George v. Children's National Transferred to N.D. Ill.
----------------------------------------------------------------
In the multi-district litigation captioned IN RE: ABBOTT
LABORATORIES, ET AL., PRETERM INFANT NUTRITION PRODUCTS LIABILITY
LITIGATION, MDL No. 3026, Judge Karen K. Caldwell, Chairperson of
the U.S. Judicial Panel on Multidistrict Litigation transfers
"George, et al. v. Children's National Medical Center," C.A. No.
1:20−03108 to the Northern District of Illinois and, with the
consent of that court, assigned it to Judge Rebecca R. Pallmeyer
for coordinated or consolidated pretrial proceedings.
The action is brought solely against Children's National Medical
Center, where plaintiffs' infant was administered a cow's
milk-based human milk fortifier marketed under the "Similac" and
"Enfamil" brand names. Said infant formula products have allegedly
a higher propensity to cause necrotizing enterocolitis (NEC) in
infants born prematurely than other, allegedly safer alternatives.
The George action falls within the MDL's ambit because it involves
injuries arising from an infant's ingestion of cow's milk-based
preterm infant formulas manufactured by Abbott Laboratories and/or
Mead Johnson. Although some cases are slightly advanced, the Panel
is of the opinion that the parties can obtain significant
efficiencies by placing all actions before a single judge.
Centralization offers substantial opportunity to streamline
pretrial proceedings, reduce duplicative discovery and conflicting
pretrial obligations, prevent inconsistent rulings and summary
judgment motions and conserve the resources of the parties, their
counsel and the judiciary.
A full-text copy of the court's October 7, 2022 Transfer Order is
available at https://bit.ly/3Tf4HF1
MDL 3044: Court Consolidates 27 Suits in E.D.N.Y.
-------------------------------------------------
In the product litigation regarding knee/hip replacement devices'
premature failure captioned IN RE: EXACTECH POLYETHYLENE ORTHOPEDIC
PRODUCTS LIABILITY LITIGATION, MDL No. 3044, Judge Karen K.
Caldwell, Chairperson of the U.S. Judicial Panel on Multidistrict
Litigation, transfers seven cases from the U.S. District Court for
the Eastern District of New York, six from the Southern District of
New York, four from the District of Maryland, two each from the
District of New Jersey and South Carolina, and one each from the
Eastern District of Arkansas, District of Colorado, District of
Connecticut, Eastern District of Missouri, Northern District of
Texas and Eastern District of Louisiana all to the Eastern District
of New York and, with the consent of that court, assigned to Judge
Nicholas G. Garaufis for coordinated or consolidated pretrial
proceedings.
This litigation concerns two events concerning polyethylene
components of Exactech medical devices. On June 28, 2021, Exactech
issued a product safety alert regarding the clinical performance of
the polyethylene liner used in its Connexion GXL hip systems. On
August 31, 2021, Exactech initiated a recall related to
polyethylene inserts used in its knee and ankle devices because
such devices were packaged in out-of-specification vacuum bags that
are oxygen resistant but do not contain a secondary oxygen barrier
of ethylene vinyl alcohol. In August 2022, Exactech expanded its
June 2021 recall to include additional Connexion GXL hip liners and
other polyethylene liners.
Plaintiffs in the actions allege that their knee or hip replacement
devices (Optetrak and Truliant and Connexion GXL, respectively)
failed prematurely because of degradation of the device's
polyethylene component, which resulted in the premature removal (or
planned removal) of the prosthesis at issue. All actions are
expected to share factual questions concerning the design,
manufacture, testing, marketing, packaging and performance of the
polyethylene components of their Exactech devices. Plaintiffs
allege that oxidation of the moderately cross-linked polyethylene
used in the Exactech hip, knee and ankle devices causes
inflammatory responses when implanted, generates polyethylene
debris, crack, and loosen the device, all of which in turn requires
revision surgery.
According to the Panel, centralization offers substantial
opportunity to streamline pretrial proceedings, reduce duplicative
discovery and conflicting pretrial obligations, as well as prevent
inconsistent rulings on common Daubert challenges and other issues.
While any number of proposed transferee districts could ably handle
this litigation, the Eastern District of New York is the
appropriate transferee district for these cases, where 26 cases are
pending (over a third of the 75 total actions and potential
tag-along actions), and is a relatively underutilized transferee
district, the Panel adds.
A full-text copy of the Court's October 7, 2022 order is available
at https://bit.ly/3EshPTk
MDL 3046: Panel Denies Centralization of 3 Actions in D.D.C.
------------------------------------------------------------
In the case captioned "In re: U.S. Postal Services Next Generation
Delivery Vehicle Acquisitions Program - Record Of Decision
Litigation," MDL No. 3046, Chairperson Karen K. Caldwell of the
U.S. Judicial Panel on Multidistrict Litigation, has entered an
order denying the transfer of three actions, two of which are
pending in the Northern District of California and one in the
Southern District of New York, to the District of Columbia.
These actions involve challenges under the National Environmental
Policy Act (NEPA) to the February 23, 2022 record of decision in
which the U.S. Postal Service (USPS) announced its plans for
purchasing up to 165,000 new delivery vehicles, of which at least
10 percent were to have battery electric powertrains rather than
internal combustion engines. The record of decision incorporates a
final environmental impact statement (EIS) issued by USPS in
January 2022.
In June 2022, USPS issued a notice of intent to prepare a
supplemental EIS to address the impacts of potential changes in its
delivery operations and routes that may warrant increasing the
minimum number of electric vehicles to be procured. And, in July
2022, USPS announced that the supplemental EIS would take into
account additional proposed operational and other changes. As a
result of these changes, USPS stated, it now expects that at least
40 percent of the total quantity of vehicles to be procured will be
electric-powered. It also stated that additional vehicle
procurements beyond those being analyzed in the forthcoming
supplemental EIS will be assessed in subsequent supplements to the
EIS, based on then-current market and operational conditions.
Because of these changes in USPS's vehicle acquisition plans and
the impending issuance of a supplemental EIS, USPS states that it
intends to move to stay the three involved actions. Consequently,
it is not clear when pretrial proceedings in the actions will
commence. Moreover, if the actions are not stayed, or after any
stays are lifted, plaintiffs likely will amend their complaints in
response to USPS's altered plans and the new EIS. Given these
uncertainties about when and how the litigation may progress, the
panel concluded that centralization at this time would not be
appropriate.
A full-text copy of the court's October 7, 2022 order is available
at https://bit.ly/3EAVJ0S
MDL 3048: Panel Denies Centralization of 7 River Rights Suits
-------------------------------------------------------------
In the multi-district litigation captioned IN RE: KLAMATH RIVER
BASIN LITIGATION, MDL No. 3048, Judge Karen K. Caldwell,
Chairperson of the U.S. Judicial Panel on Multidistrict Litigation
denied a move to centralize five actions from the U.S. District
Court for the District of Oregon and two actions from the Northern
District of California to the District of Oregon or, alternatively,
in the District of Nevada or the District of New Mexico.
This litigation involves different aspects of the operation of the
Klamath Project, a federal reclamation project that provides water
for irrigation in southern Oregon and northern California, and in
particular releases of water from Upper Klamath Lake in Oregon to
the Klamath River downstream of the Project.
One action is brought on behalf of the Yurok Tribe seeking to
protect endangered salmon that live or spawn in the Klamath River.
Another is brought by the Yurok Tribe seeking the release of water
for the Tribe's Boat Dance ceremony. The Klamath Tribes bring two
actions seeking to protect the Lost River and short-nose suckers,
endangered species of fish that live in Upper Klamath Basin and
nearby waters.
Plaintiffs sued the Bureau of Reclamation seeking to protect their
alleged rights to water from the project for agricultural purposes
and to assert the water rights in an Oregon state proceeding known
as the Klamath Basin Adjudication. The United States, in turn,
seeks a declaration that its obligations under the Endangered
Species Act supersede the water rights of agricultural interests.
The United States also sued Klamath Drainage District for breach of
contract based on water releases used for agricultural purposes.
While these actions involve the same bodies of water and many of
the same parties, the panel contended that these actions will not
entail significant discovery or particularly complex pretrial
proceedings. These actions primarily involve legal questions, in
particular the determination of the Bureau of Reclamation's
obligations under the Endangered Species Act to protect certain
species of fish in Upper Klamath Lake and the Klamath River, the
Bureau's obligations to release water for tribal religious
ceremonies and the Bureau's obligation under the Reclamation Act,
to abide by the declaration of water rights in the Klamath Basin
Adjudication. Many, if not most, of the actions will be decided on
an administrative record, such that discovery will be minimal and
summary judgment motion practice likely will resolve the parties'
disputes. For this reason, centralization of record-review cases is
often inappropriate. Plaintiffs have argued that centralization is
necessary because of the potential for inconsistent rulings
regarding a limited resource--the water in Upper Klamath Lake.
Notably, however, the procedural posture of this litigation also
differs from those prior litigations and weighs against
centralization, notes the Pane;. These actions already are being
conducted in a coordinated fashion, such that many of the most
important legal questions will be resolved in short order.
Centralization at this juncture would only delay these
adjudications and increase the procedural complexity of an already
complex litigation. The panel, hence, concluded that these cases
can be more effectively and efficiently advanced and resolution
achieved more quickly, without centralization.
A full-text copy of the Court's October 4, 2022 order is available
at https://bit.ly/3V8HG8H
MONTANA UNIVERSITY: Cole Loses Class Certification Bid
------------------------------------------------------
In the class action lawsuit captioned as CATHERINE COLE, BARBARA
KOOSTRA, MARY-ANN SONTAG BOWMAN, RHONDIE VOORHEES, COURTNEY
BABCOCK, LAURA BERKHOUSE, RUTH ANN BURGAD, JANE DOE 1, JENNIFER
COOPER, CINDY FERGUSON, FRIEDA HOUSER, SHERRIE LINDBO, JENNIFER
MCNULTY, KATHLEEN REEVES, JANE DOE 2, and VIDA WILKINSON,
individually and on behalf of all others similarly situated, v.
MONTANA UNIVERSITY SYSTEM, UNIVERSITY OF MONTANA–MISSOULA, and
JOHN DOE DEFENDANTS 1-50, Case No. 9:21-cv-00088-BMM (D. Mont.),
the Hon. Judge Brian Morris entered an order:
-- granting the Defendants' motion to deny class
certification; and
-- denying without prejudice the Plaintiffs' motion for class
certification.
The Court believes it appropriate to permit Plaintiffs "a second
bite at the class certification apple," given the importance of the
issues in this case and the previously discussed evidentiary
difficulties discrimination cases present. The Court will deny
without prejudice Plaintiffs’ Motion for Class Certification.
The University of Montana is a public research university in
Missoula, Montana.
A copy of the Court's order dated Oct. 3, 2022 is available from
PacerMonitor.com at https://bit.ly/3MhzsXI at no extra charge.[CC]
MOSQUITO SQUAD: Parties Seek to Certify Class in Lenorowitz Suit
----------------------------------------------------------------
In the class action lawsuit captioned as SAMUEL LENOROWITZ,
individually, And on behalf of all other similarly situated, v.
MOSQUITO SQUAD OF FAIRFILED AND WESTCHESTER COUNTY, Case No.
3:20-cv-01922-JBA (D. Conn.), the Parties ask the Court to enter an
order:
-- granting a 21-day extension to comply with the Court's
September 21, 2022 Order;
-- granting the Plaintiff's Motion for Class Certification and
directing the parties to submit a proposed class notice and
a class notice plan.
On Thursday, September 21, 2022, the Court issued its Order
granting the Plaintiff's Motion for Class Certification and
directing the parties to submit a proposed class notice and a class
notice plan within 14 days.
On Friday, September 23, counsel for the Plaintiff reached out to
the Defendant's counsel to set up a time to discuss the class
notice and discovery plan.
Because of Plaintiff’s counsel’s observance of the intervening
Rosh Hashanah holiday (September 26 and 27) and Defendant's
counsel’s availability, that conference did not happen until
September 29.
A copy of the Parties' motion dated Oct. 3, 2022 is available from
PacerMonitor.com at https://bit.ly/3SP4zwo at no extra charge.[CC]
The Plaintiff is represented by:
Yitzchak Zelman, Esq.
701 Cookman Avenue, Suite 300
Asbury Park, NJ 07712
Telephone: (732) 695-3282
Facsimile: (732) 298-6256
E-mail: yzelman@marcuszelman.com
The Defendant is represented by
Christopher Sovak, Esq.
BUSHELL, SOVAK & KANE LLP
274 Madison Avenue, Suite 901
New York, NY 10016
Telephone: (212) 949-4700
Facsimile: (212) 286-0573
E-mail: csovak@bushellsovak.com
- and -
Joseph Patrick Sargent, Esq.
1595 Black Rock Turnpike
Fairfield, CT 06824
Telephone: 203-325-2323
Facsimile: 203-659-7360
E-mail: josephpsargent@yahoo.com
- and -
Shannon Z. Petersen, Esq.
Sheppard Mullin, Esq.
12275 El Camino Real, Suite 200
San Diego, CA 92130-4092
TelephoneL (858) 720-7483
E-mail: spetersen@sheppardmullin.com
MRS. FIELDS: Unlawfully Disclosed Customer Info, Lawsuit Alleges
----------------------------------------------------------------
Kelly Mehorter at classaction.org reports that Mrs. Fields Gifts
faces a proposed class action for allegedly failing to notify its
catalog customers before disclosing their personal information to
third parties for compensation.
The 32-page case more specifically alleges Mrs. Fields has violated
Utah's Notice of Intent to Sell Nonpublic Personal Information Act
(NISNPIA) by failing to notify people who purchased products
through the company's catalog that it rents and sells their
information to list brokers and data aggregators, appenders and
cooperatives. Under the NISNPIA, a business must inform customers
in writing or orally that it "may choose to disclose nonpublic
personal information" about them for compensation, or provide a
"substantially" similar notice, before sharing the data with a
third party for profit, the suit relays.
According to the complaint, the snack-food company has compiled
data about its customers into mailing lists-including their full
names, home addresses, status as Mrs. Fields customers, and myriad
demographic details-to sell or rent to third-party data aggregators
or appenders. Mrs. Fields also sells its mailing lists to
"aggressive advertisers, political organizations, and non-profit
companies," all without warning consumers, the case contends.
The filing argues that Mrs. Fields' "intentional, systematic, and
unlawful" practice allows it to "profit handsomely" at the expense
of its customers' privacy rights.
As a result of Mrs. Fields' alleged misconduct, direct-mail
advertisers have sent catalog customers excessive amounts of
unwanted junk mail, which can be dangerous to unsuspecting
consumers who may fall victim to scammers, the case asserts.
Per the complaint, the sensitive information of 284,780 Mrs.
Fields consumers is available for 11 cents apiece through list
broker Nextmark.
The lawsuit looks to cover anyone in the United States who, during
the applicable statutory period, had their private purchase
information obtained by Mrs. Fields on or after January 1, 2004 as
a result of a consumer transaction.[GN]
NATIONAL EDUCATION: Wilford Brings Suit to U.S. Supreme Court
-------------------------------------------------------------
SCOTT WILFORD, et al. filed on September 15, 2022, a petition for
writ of certiorari -- assigned Case No. 22-255 -- asking the U.S.
Supreme Court to review the judgment of the United States Court of
Appeals for the Ninth Circuit in the case captioned as Scott
Wilford, et al., Petitioners vs. National Education Association, et
al., Case No. 19-55712.
As previously reported in the Class Action Reporter, the
Plaintiffs, on behalf of themselves and all other similarly
situated non-member public school and community college employees
in California, brought a class action suit against the Defendants
alleging First Amendment and state law claims arising out of
compulsory agency fees. The case is captioned Scott Wilford, et
al., individually and on behalf of others similarly situated,
Plaintiffs, v. National Education Association, et al., Defendants,
Case No. 8:18-cv-01169-JLS-DFM, in the U.S. District Court for the
Central District of California.
On November 15, 2018, the Defendants filed a motion to dismiss the
case, which the Court granted through an Order entered by Judge
Josephine L. Staton on May 8, 2019.
On June 19, 2019, the Plaintiffs appealed the district court's
ruling to the Ninth Circuit.
The Ninth Circuit affirmed the district court's judgment dismissing
the Plaintiffs' 42 U.S.C. Section 1983 putative class action. The
Ninth Circuit panel held that the district court properly dismissed
the Plaintiffs' claim for retrospective monetary relief because a
public sector union can, as a matter of law, "invoke an affirmative
defense of good faith to retrospective monetary liability under
section 1983 for the agency fees it collected" prior to the Supreme
Court's decision in Janus v. American Federation of State, County &
Municipal Employees, Council 31, 138 S.Ct. 2448, 2486 (2018).
The Ninth Circuit also held that the district court properly
dismissed as moot the Plaintiffs' claims for prospective relief
because the Defendants stopped deducting and receiving agency fees
after the Supreme Court's decision in Janus disallowed the
deduction or receipt of agency fees in their collective bargaining
agreements, stopped enforcing statutes permitting the deduction of
agency fees, and demonstrated that they are unlikely to rescind the
policy changes.
Lastly, the Panel found that the district court properly dismissed
the Plaintiffs' state law claims because they failed to allege
facts sufficient to state a plausible claim.
A petition for panel rehearing and petition for rehearing en banc
were denied. [BN]
Plaintiffs-Petitioners SCOTT WILFORD, et al., individually and on
behalf of all others similarly situated, are represented by:
John J. Bursch, Esq.
BURSCH LAW PLLC
9339 Cherry Valley SE, Ste. 78
Caledonia, MI 49316
Telephone: (616) 450-4235
E-mail: jbursch@burschlaw.com
Defendants-Respondents NATIONAL EDUCATION ASSOCIATION OF THE UNITED
STATES, et al., are represented by:
Scott A. Kronland, Esq.
ALTSHULER BERZON, LLP
177 Post Street, Suite 300
San Francisco, CA 94108
Telephone: (415) 421-7151
Facsimile: (415) 362-8064
E-mail: skronland@altshulerberzon.com
ND PAPER: Faces Suit Over Facility's Offensive Odor Emissions
-------------------------------------------------------------
Kelly Mehorter at classaction.org reports that a proposed class
action claims that "noxious odors" emanating from Old Town, Maine's
ND Paper facility have negatively impacted roughly 5,900 nearby
private residences.
The 15-page case alleges a "harsh rotten-egg" smell originating
from the paper pulp manufacturing mill has invaded nearby private
properties on "frequent, recurrent, and intermittent occasions too
numerous to list individually."
Per the complaint, more than 120 neighboring residents have
contacted the plaintiff's counsel to report that the offensive odor
emissions have interfered with their ability "to use and enjoy
their homes and property." According to one resident's account, the
odor is so strong that they can no longer open the windows or go
for walks. Another citizen stated that the smell makes having
guests over "embarrassing," the suit relays.
The lawsuit contends that ND Paper, who bought the Old Town paper
pulp mill in 2018 and resumed operations after the facility had
been idle since 2015, is liable for the "objectionable" odor due to
its failure to adequately maintain its facilities.
ND Paper's pulp production process, which involves breaking down
wood chips into wood pulp using heat, chemical treatment and water,
creates as a byproduct a waste sludge that gets treated in an
aerated lagoon, the case relays. Per the suit, the "rotten egg"
smell comes from the chemicals used to break down wood fibers, a
process that produces gas emissions in the form of total rotten
egg-smelling total reduced sulfur and sulfur dioxide.
"If the lagoon is not properly maintained," the complaint explains,
"the waste sludge can produce noxious odor emissions."
The filing states that the Maine Department of Environmental
Protection (DEP) Non-Compliance Board has received a high volume of
complaints from community members concerning the odor diffusing
from the facility. The DEP Bureau of Air Quality has also received
at least 50 similar complaints since 2020, the suit asserts. ND
Paper now has a link on its website for submitting grievances due
to the influx of complaints received by the DEP. [GN]
NEW MEXICO: Valdez Appeals Vaccine Mandate Case Dismissal
---------------------------------------------------------
TALISHA VALDEZ, et al. are taking an appeal from a court order
dismissing their lawsuit entitled Talisha Valdez, et al.,
individually and on behalf of others similarly situated,
Plaintiffs, v. Michelle Lujan Grisham, officially and individually,
Acting Under the Color of Law, et al., Defendants, Case No.
1:21-CV-00783-MV-JHR, in the U.S. District Court for the District
of New Mexico.
As reported in the Class Action Reporter, the original lawsuit was
filed two days after Gov. Grisham and the New Mexico Department of
Health ("DOH") issued a public health order (the "August 2021 PHO")
mandating that certain individuals, including health care and
congregate care workers, receive booster COVID-19 vaccines.
The Plaintiffs claim that the August 2021 PHO's vaccine
requirements violate the Federal Food, Drug, and Cosmetic Act
("FDCA"), their federal constitutional rights to equal protection,
substantive due process, and procedural due process, their rights
under Article 1, Section 10 of the United States Constitution, and
their rights under the New Mexico Constitution. As a result of
these alleged violations, they request declaratory relief, "a
temporary restraining order to prohibit the Defendants from
enforcing public health orders against them and the other putative
class members that are similarly situated," a preliminary
injunction "to prohibit the Defendants from enforcing public health
orders in the arbitrary and capricious manner and fashion engaged
by the Defendants," and actual and punitive damages.
On September 2, 2021, the Defendants filed a motion to dismiss the
Plaintiffs' complaint for failure to state a claim, which the Court
granted through an Order entered by Judge Martha Vazquez on August
19, 2022. Judge Vazquez concluded that the Plaintiffs have failed
to state a claim upon which relief can be granted on any of their
claims allegedly arising under federal law, namely, their FDCA
claims, their substantive due process claims, their equal
protection claims, their procedural due process claims, and their
contractual impairment claims. As a result, those claims will be
dismissed with prejudice, and the Court need not reach the issue of
qualified immunity. Judge Vazquez declined to exercise supplemental
jurisdiction over the Plaintiffs' state law claims and,
accordingly, those claims were dismissed without prejudice.
The appellate case is captioned as Valdez, et al v. Lujan Grisham,
et al., Case No. 22-2112, in the United States Court of Appeals for
the Tenth Circuit, filed on September 20, 2022.
The briefing schedule in the Appellate Case states that:
-- Appellants Jennifer Blackford and Talisha Valdez docketing
statement and transcript order form were due on October 4, 2022;
and
-- Appellants Jennifer Blackford, Michelle Lujan Grisham, David
Scrase, and Talisha Valdez notice of appearance was due on October
4, 2022. [BN]
Plaintiffs-Appellants TALISHA VALDEZ, et al., individually and on
behalf of all others similarly situated, are represented by:
A. Blair Dunn, Esq.
WARBA
400 Gold Ave SW, Suite 1000
Albuquerque, NM 87102
Defendants-Appellees MICHELLE LUJAN GRISHAM, et al., officially and
individually, Acting Under the Color of Law, are represented by:
Holly Agajanian, Esq.
OFFICE OF THE GOVERNOR
490 Old Santa Fe Trail, Suite 400
Santa Fe, NM 87501
- and -
Maria Dudley, Esq.
Kyle P. Duffy, Esq.
STATE OF NEW MEXICO
490 Old Santa Fe Trail, Suite 400
Santa Fe, NM 87501
Telephone: (505) 476-2200
NEW YORK, NY: District Court Dismisses E.F. v. Dep't. of Education
------------------------------------------------------------------
In the case, E.F., a minor, by and through her parent and natural
guardian, Marie Farrell; A.S., a minor, by and through his parent
and natural guardian, Mariya Pustovalova; L.P., a minor, by and
through his parent and natural guardian, Jennifer Petri, on behalf
of themselves and a class of those similarly situated, and
Disability Rights New York, Plaintiffs v. THE NEW YORK CITY
DEPARTMENT OF EDUCATION; THE CITY OF NEW YORK; RICHARD CARRANZA, in
his official capacity as Chancellor of the New York City Department
of Education, Defendants, Case No. 21-cv-419 (LDH) (E.D.N.Y.),
Judge Lashann Dearcy Hall of the U.S. District Court for the
Eastern District of New York grants the Defendants' motion to
dismiss the Complaint.
Minors E.F., A.S., and L.P. (the "Individual Plaintiffs"), and
Disability Rights New York ("DRNY") (collectively, "Plaintiffs")
bring this putative class action on behalf of themselves and
similarly situated students, against the New York City Department
of Education ("DOE"), the City of New York, and Richard Carranza,
in his capacity as Chancellor of the DOE, for violations of the
Americans with Disabilities Act ("ADA"), Section 504 of the
Rehabilitation Act, the Individuals with Disabilities Education Act
("IDEA"), and the New York City Human Rights Law ("NYCHRL").
The DOE operates the public school system in all five boroughs of
New York City. In total, it provides educational programs and
services to well over one million students in 1,866 schools.
Approximately 227,000 students, nearly one quarter of the entire
New York student population, receive special education under the
IDEA. The system is divided into 32 community school districts,
which provide educational services largely based on geographic
criteria. District 31 is the only community school district on
Staten Island. It is comprised of over 75 different schools and
serves approximately 62,000 students.
In addition to the community school districts, the DOE operates
District 75 to serve as a citywide school district for students
with autism spectrum disorders, significant cognitive delays,
sensory impairments, emotional disturbances, and other
disabilities. On Staten Island, District 75 is comprised of four
schools with roughly 2,000 students. Some of the Staten Island
District 75 schools are standalone campuses, while other District
75 schools are co-located on the same campuses as District 31
schools. Additionally, while many students with disabilities attend
a District 75 school, some disabled students attend community
schools in District 31.
The Plaintiffs allege that students with disabilities at standalone
District 75 campuses spend each school day "totally segregated"
from students without disabilities. Even disabled students at
co-located campuses "spend all or almost all of their school day
segregated from students without disabilities." The Plaintiffs also
allege that many of District 75's "segregated campuses lack
essential educational facilities such as libraries, cafeterias,
gymnasiums, or playgrounds."
According to the Complaint, most District 75 students are "denied
the opportunity to be educated in the community schools, magnet or
specialized schools, public charter schools, and other schools
available to their non-disabled peers." The Plaintiffs also allege
that many District 75 students "have no or minimal access to
after-school or extracurricular activities, such as clubs, sports
teams, or other non-academic enrichment opportunities, as compared
to their peers in DOE community schools, thereby denying them the
opportunity to develop ties to a local neighborhood and community."
Finally, they allege that the academic achievement data that the
DOE provides indicates that many District 75 students "fail to
achieve basic learning standards." Ultimately, the Plaintiffs
maintain that the DOE "continues to maintain a segregated system of
education for the students" instead of developing and investing
resources to serve students with disabilities in District 31
community schools.
E.F. is an 18-year-old student, who has had an individual education
plan ("IEP") since she was four years old. She then transferred to
a co-located District 75 school, following concerns from her mother
that she was not receiving appropriate academic support at her
District 31 school. E.F. currently attends a Staten Island District
75 school at its co-located site on the campus of a community high
school. She has had limited interaction with her peers without
disabilities. As a result, E.F. is shy and socially awkward around
students her age.
A.S. is a nine-year-old student with ADHD. He has had an IEP since
he was three years old. A.S. began kindergarten at a District 31
school. According to the complaint, A.S. was not challenged
academically at his District 75 school. Because only students with
disabilities attended A.S.'s District 75 school, A.S. had no
opportunity to be educated with students without disabilities. In
December of 2019, A.S. had a classroom observation at his District
75 school. As a result of his observation, it was determined that
A.S. did not require an education in a District 75 school. Thus, in
March 2020, A.S. was enrolled in a District 31 community school
near his home.
L.P. is a 14-year-old student with ADHD. He has had an IEP since he
was three years old. L.P. has attended District 31 schools since
kindergarten. In sixth grade, he was placed in an integrated
transition assistance program ("TAP") with students without
disabilities. L.P. was subsequently removed from TAP. L.P. is
currently a freshman at a District 31 school. He remains at risk
for transfer to a District 75 school because of the DOE's "failure
to provide him with appropriate services and supports."
DRNY is a non-profit Protection and Advocacy system (P&A system).
As a P&A system, they are defined under the Developmental
Disabilities Assistance and Bill of Rights Act, the Protection and
Advocacy for Individuals with Mental Illness Act of 1986, and the
Protection and Advocacy of Individual Rights Act. As a P&A system,
DRNY is expressly authorized to pursue legal, administrative, and
other remedies to ensure the protection of, and advocacy for, the
rights of individuals with disabilities.
The Plaintiffs purport to bring three independent federal claims;
one under each the ADA, Section 504, and the IDEA. The Defendants
maintain that notwithstanding the Plaintiffs' characterization of
the claims, the gravamen of this suit relates to the Defendants'
failure to provide a FAPE, which is subject to the IDEA's
exhaustion requirement and which Plaintiffs have failed to meet.
Judge Hall agrees. Admittedly, she finds the Plaintiffs' complaint
to be confusing, at best. It purports to bring claims on behalf of
"students with disabilities who receive education in a Staten
Island District 75 School or classroom or are at a significant risk
of being placed in a Staten Island District 75 School or
classroom." Yet, of the three named Plaintiffs, only one, E.F.,
actually attends a District 75 school. That said, even a
consideration of those allegations only related to E.F., does not
save the Plaintiffs from the IDEA's exhaustion requirement.
The Plaintiffs also allege that "E.F. could be educated in a
District 31 school."
Judge Hall is at a loss as to how their allegations would permit
E.F. to pursue a claim under the ADA, the IDEA, or Section 504 if
this conduct occurred in another public setting. Indeed, she cannot
see how that conduct could even occur elsewhere. Likewise, there is
no basis to conclude that any adult could advance the claims raised
on these facts.
The Plaintiffs' generalized allegations concerning the structure
and programming at District 75 schools fare no better. In sum, the
Plaintiffs complain that the Defendants deny District 75 students
"the many positive benefits of being educated in classrooms with
their peers without disabilities, including access to a curriculum
that meets the requirements of a regular high school diploma,
higher educational expectations set by both teachers and peers, and
learning appropriate social skills and behaviors modeled by
classmates without disabilities."
Judge Hall sees no meaningful distinction between this hypothetical
and the Plaintiffs' complaints concerning District 75's curriculum,
provision of educational tools, access to extracurricular
activities, and the type of diploma awarded. Although the complaint
pleaded disability-based discrimination by unnecessarily
segregating students with disabilities in separate and unequal
educational programs, the "crux of the complaint was that the
Defendants failed to provide the educational instruction and
related services that the class Plaintiffs need to access an
appropriate education in an appropriate environment.
Ultimately, on the facts alleged in the case, the exhaustion
requirement is similarly triggered. Certainly, as the Plaintiffs
note, the exhaustion requirement can be excused under certain
circumstances, including where exhaustion would be futile. This is
so where a plaintiff alleges a systemic violation. As ably put by
one court, where a complaint alleges a systemic violation rooted in
DOE policies or practices, hearing officers "have no power to alter
the City's policies or general practices and cannot issue
prospective relief," citing M.G. v. New York City Dep't of Educ.,
15 F.Supp.3d 296, 305 (S.D.N.Y. 2014). Hence, in such a case,
exhaustion must be excused.
The Plaintiffs maintain, consistent with this principle, they can
avoid the exhaustion requirement because they complain of a
systemic unlawful practice: "namely, that 'by unnecessarily
segregating students with disabilities from their peers without
disabilities, the Defendants violate the ADA, Section 504, the IDEA
and the NYCHRL, which all require public school districts to
provide programs, services, and activities to students with
disabilities in the most integrated setting appropriate."
Judge Hall does not disagree that the law demands as much. However,
absent from the Plaintiffs' complaint are any allegations that
support the existence of a policy or practice to the contrary. The
Plaintiffs urge the Court not to focus on E.F. alone, but rather
the totality of their allegations. Yet, she still cannot discern
any alleged practice or policy to "unnecessarily segregate"
students with disabilities. None of the generalized allegations
concerning District 75 suggest as much. And the Individual
Plaintiffs allegations do violence to any such claim. Absent from
these allegations is any suggestion that E.F.'s ultimate placement
was based on a system or practice employed by the DOE rather than
an individualized assessment of E.F.
Absent any identifiable system or practice to segregate students
with disabilities, Judge Hall is left with a challenge to an
individualized placement. Of course, such challenges can and must
first be brought before a hearing officer. Contrary to the
Plaintiffs' assertion under these circumstances, a hearing officer
has the power and authority to issue relief.
For the foregoing reasons, Judge Hall grants the Defendants' motion
to dismiss the Complaint.
A full-text copy of the Court's Sept. 30, 2022 Memorandum & Order
is available at https://tinyurl.com/ycxh8kk4 from Leagle.com.
PACIFIC NW: Piece-Rate Employees Win Conditional Class Status
-------------------------------------------------------------
In the class action lawsuit captioned as Jack Daniel v. Pacific NW
LLC, Case No. 2:21-cv-02187-MTL (D. Ariz.), the Hon. Judge Michael
T. Liburdi entered an order:
1. granting the Plaintiff's motion for conditional
certification, for approval and distribution of notice and
for disclosure of contact information to the extent that
the following FLSA collective action is certified:
"All piece-rate employees who were employed by Pacific NW,
LLC, on or after December 21, 2018;" and
2. granting the Plaintiff's Motion, to the extent that it
seeks approval for notice and consent procedures;
Pacific NW LLC, doing business as Hilton Cabinets, operates as a
building products manufacturing company.
A copy of the Court's order dated Sept. 28, 2022 is available from
PacerMonitor.com at https://bit.ly/3rBv6RI at no extra charge.[CC]
PASCHALL TRUCK: Carter Original Bid to Certify Class Nixed as Moot
------------------------------------------------------------------
In the class action lawsuit captioned as Carter, et al., v.
Paschall Truck Lines, Inc., et al., Case No. 5:18-cv-00041 (W.D.
Ky.), the Hon. Judge Benjamin Beaton entered an order denying the
original motion to certify class as moot.
The Plaintiff previously filed a motion to certify a class, which
was then superseded by an amended motion for class certification.
In light of the Plaintiff's decision to amend the original motion,
and the Court's subsequent decision to deny that amended motion,
the Court denies the original motion to certify as moot.
The suit alleges violation of the Fair Labor Standards Act.[CC]
PHILADELPHIA, PA: To Install Curb Ramps as Settlement in ADA Suit
-----------------------------------------------------------------
Danielle McLean at smartcitiesdive.com reports that
Dive Brief:
Philadelphia has agreed to build, install or remediate at least
10,000 curb ramps over the next 15 years - hitting 2,000-ramp
milestones every three years - in a lawsuit settlement with a class
of disabled city residents, according to disability rights groups
in a press release.
If approved by the court, the settlement would require city
officials to install accessible curb ramps where they are missing
or whenever it is feasible during roadway construction projects
involving pedestrian walkways and to fix existing inaccessible
ramps. The city also agreed to establish a system for residents to
request new curb ramps or repairs to existing ramps and post
progress reports on the required work on the city's website.
"Activists and advocates fighting for disability rights in
Philadelphia, like myself, now have a victory here in our city that
we've wanted for a long time," said Tony Brooks, a plaintiff in the
lawsuit, in a statement. "I'm very happy that, with this
settlement, we're going to have safer and more accessible
sidewalks."
Dive Insight:
People with disabilities have often turned to the courts to make
U.S. cities accessible and compliant with the federal Americans
with Disabilities Act and Rehabilitation Act standards.
In 2019, New York City, for instance, settled with disability
rights groups to address the city's inaccessible curb cuts,
potholes, sloped ramps, and lack of detectable warnings for blind
pedestrians. Last year, a class of wheelchair users sued the city
of Baltimore, claiming the city's sidewalks failed to meet ADA
requirements. And Uber reached a multimillion-dollar settlement
with U.S. Justice Department in July over its practice of imposing
wait time fees for passengers who need more time to board vehicles
due to their disability.
In Philadelphia, the plaintiffs, represented by the nonprofit legal
center Disability Rights Advocates and Philadelphia attorney David
Ferleger, filed a class-action lawsuit in 2020, claiming the city
failed to install, remediate and maintain curb ramps in violation
of the ADA.
In the settlement agreement, the city did not admit that it
violated or failed to comply with the ADA or admit any liability to
the plaintiffs or the settlement class.
Latoya Maddox, president of Disabled in Action of Pennsylvania,
said in a statement that thousands of people with disabilities in
Philadelphia would benefit from the settlement agreement.
"Having a plan to make curb ramps more accessible will benefit many
members of the disability community including people like myself,
who use wheelchairs, people who use other mobility devices, and
people who are blind or have low vision for years to come," Maddox
said. [GN]
PRO CUSTOM: Bid to Dismiss and to Arbitrate in Venson Suit Denied
-----------------------------------------------------------------
In the case, MARK VENSON, ALISSA WINFREY, AHMED SUNKINS, O'NEIL
HALL, and BASIL OGUEKWE, Plaintiffs v. PRO CUSTOM SOLAR LLC d/b/a
MOMENTUM SOLAR, JEFFREY ANCLIEN and BRIAN ALPER, Defendants, Civil
Action No. 19-19227 (ES) (MAH) (D.N.J.), Judge Esther Salas of the
U.S. District Court for the District of New Jersey denies the
Defendants' motion to dismiss the Second Amended Complaint and to
compel arbitration against Plaintiffs Sunkins, Hall, and Oguekwe
only without prejudice pending limited fact discovery on the issue
of arbitrability.
The Plaintiffs filed this putative class action on behalf of
themselves and all other similarly situated employees against the
Defendants for alleged violations of the Civil Rights Act of 1866,
42 U.S.C. Section 1981, the New Jersey Law Against Discrimination
("NJLAD"), N.J.S.A. Section 10:5-12, and Title VII of the Civil
Rights Act of 1964, 42 U.S.C. Section 2000e.
The Plaintiffs are former Momentum employees who worked in
Momentum's New Jersey call center at various times from 2018 to
2020. According to the SAC, the Defendants regularly subjected the
Plaintiffs and other "Black call center employees who worked for
Momentum" to racial hostility and discrimination, including "highly
offensive and patently racist comments;" lower pay than
"similarly-situated white employees;" and retaliation for reporting
or complaining "about Defendants' discriminatory conduct." The
Plaintiffs allege that "discrimination and retaliation are not
unusual at Momentum" but are "part and parcel to its standard
operating patterns."
Mr. Venson initiated this action on Oct. 22, 2019, alleging five
causes of action against the Defendants on behalf of himself and
"all Black call center employees who worked for Momentum out of its
New Jersey call center during the full statutory period." The
initial complaint raised claims for discrimination and retaliation
under Section 1981 and the NJLAD.
On April 2, 2021, Venson filed an amended complaint which raised
two additional claims under Title VII against Momentum. On Aug. 30,
2021, Venson filed a motion for leave to amend the amended
complaint to add four putative class members, those being Winfrey,
Sunkins, Hall, and Oguekwe.
The Defendants opposed, arguing in part that the claims of Sunkins,
Hall, and Oguekwe would be futile because they are subject to
binding arbitration. Magistrate Judge Hammer granted in part
Venson's motion for leave to amend and rejected Defendants'
argument "without prejudice to their right to later file a motion
to compel arbitration or to dismiss the SAC."
Mr. Venson filed the SAC on Nov. 30, 2021, adding Winfrey, Sunkins,
Hall, and Oguekwe as plaintiffs. As permitted by Judge Hammer, the
SAC asserts the following claims: (i) discrimination in violation
of Section 1981 against all Defendants by all Plaintiffs; (ii)
retaliation in violation of Section 1981 against all Defendants by
Venson and Oguekwe; (iii) discrimination in violation of NJLAD
against Momentum by all Plaintiffs; (iv) retaliation in violation
of NJLAD against Momentum by Venson and Oguekwe; (v) aiding and
abetting violations of the NJLAD against Defendants Anclien and
Alper by all Plaintiffs; (vi) discrimination in violation of Title
VII against Momentum by Venson; and (vii) retaliation in violation
of Title VII against Momentum by Venson.
On Dec. 8, 2021, the Defendants moved to dismiss the SAC and to
compel Plaintiffs Sunkins, Hall, and Oguekwe to arbitrate their
claims pursuant to Federal Rule of Civil Procedure 12(b)(1), or,
alternatively, to dismiss the SAC pursuant to Rule 12(b)(6). The
Motion is fully briefed.
In their moving brief, the Defendants assert, and the NJLAD. The
Plaintiffs do not dispute, that Oguekwe, Sunkins, and Hall executed
individual arbitration agreements with Momentum on Aug. 2, 2019,
Sept. 9, 2019, and Oct. 19, 2019, respectively.
The Defendants first assert pursuant to Rule 12(b)(1) that the
Court lacks subject matter jurisdiction over Sunkins, Hall, and
Oguekwe's claims in light of the Arbitration Agreements.
Alternatively, they request that the Court dismisses these
Plaintiffs' claims and order them to arbitrate pursuant to Rule
12(b)(6). The Plaintiffs oppose, arguing that the Arbitration
Agreements should be set aside because they were obtained with the
intention of diminishing the putative class action brought by
Venson and the conditions surrounding the signing of the
Arbitration Agreements were coercive.
As an initial matter, Judge Salas must determine which standard of
review governs the Defendants' Motion -- Rule 12(b)(1) or Rule
12(b)(6). The Defendants contend that the Court lacks subject
matter jurisdiction under Rule 12(b)(1), which "provides for the
efficient disposal of litigation that is barred from the courts by
an arbitration agreement." The Plaintiffs oppose, asserting that
"Rule 12(b)(1) is not the appropriate mechanism to seek to compel
arbitration because a motion to compel arbitration is not
jurisdictional in nature."
Judge Salas declines to consider the Motion under Rule 12(b)(1).
She holds that with no clear authority on whether Rule 12(b)(1) is
the proper vehicle for dismissing a suit based on an arbitration
agreement within this Circuit, an examination of the FAA is
instructive. If the presence of an arbitration agreement between
the parties divested the court of its subject matter jurisdiction,
the Court would have no power to stay the case and would be
required to dismiss it instead. Further, Section 4 of the FAA
states that "upon being satisfied that the making of the agreement
for arbitration or the failure to comply therewith is not in issue,
the court will make an order directing the parties to proceed to
arbitration." This language suggests that a court at least "retains
jurisdiction to determine the threshold question of whether there
is a valid arbitration agreement between the parties."
Accordingly, given the lack of clear authority on this issue, Judge
Salas "is of the view that the better course is to address the
Defendants' motion under Rule 12(b)(6)" rather than under Rule
12(b)(1). She now turns to the Defendants' motion to compel
arbitration pursuant to Rule 12(b)(6).
The Defendants argue that the claims of Sunkins, Hall, and Oguekwe
can be properly dismissed under Rule 12(b)(6) because the
Arbitration Agreements prohibit them from pursuing their claims in
Court. In response, the Plaintiffs argue that resolution of the
motion under Rule 12(b)(6) is inappropriate because "the Complaint
says nothing about arbitration or the arbitration agreements at
issue."
Because (i) the affirmative defense of arbitrability is not
apparent on the face of the SAC or documents integral to or relied
upon therein, and (ii) the Plaintiffs have come forth with
additional facts to place their Arbitration Agreements at issue,
Judge Salas declines to consider the Motion under Rule 12(b)(6).
She opines that the Plaintiffs' SAC makes no explicit reference to
the Arbitration Agreements, nor are the Arbitration Agreements
attached to the SAC as exhibits. Further, the Arbitration
Agreements are not integral to or relied upon in the SAC nor are
they incorporated by reference in the SAC.
In addition, Judge Salas opines that the Plaintiffs' claims do not
arise under the Arbitration Agreements. Nor do their allegations
"turn on the 'terms and conditions' of the Agreement that contains
the subject arbitration provision." Similarly, the SAC never
mentions, much less discusses Sunkins, Hall, or Oguekwe's
Arbitration Agreements, or any documents that contain or
incorporate the Arbitration Agreements. Even if the SAC does
reference terms of the Plaintiffs' employment, as the Defendants
argue, it does not reference the Arbitration Agreements purportedly
entered into by Sunkins, Hall, and Oguekwe. Finally, the Plaintiffs
raise facts that place the Arbitration Agreements at issue.
Therefore, evaluating the motion under Rule 56, rather than
12(b)(6), is proper. Accordingly, Judge Salas will not evaluate the
Defendants' Motion pursuant to Rule 12(b)(6).
The Defendants maintain that in the event the Court declines to
apply Rule 12, it should decide the Motion under Rule 56 without
further discovery. The Plaintiffs contend that there are
significant questions of fact regarding the enforceability of their
Arbitration Agreements that require additional discovery.
Judge Salas opines that courts routinely deny motions to compel
arbitration and allow limited discovery where the complaint is
unclear regarding the parties' agreement to arbitrate, and the
asserted claims do not arise under the parties' arbitration
agreement at issue. Further, she is mindful of the fact that "'a
party may, in an effort to avoid arbitration, contend that it did
not intend to enter into the agreement which contained an
arbitration clause.'" At the same time, there may be legitimate
disputes over an alleged agreement to arbitrate and limited
discovery is appropriate where, as in the case, the "parties have
come forth with facts that put the formation of the arbitration
agreement at issue," such as whether coercive tactics were
employed, the sophistication of the Plaintiffs, and whether there
was a disparity in bargaining power
Accordingly, limited discovery on the issue of arbitrability is
appropriate because the Motion requires the Court to examine
documents extraneous to the pleading and because the Plaintiffs
have put the formation of the Arbitration Agreements at issue.
After the necessary discovery is complete, the Defendants may renew
their arbitrability arguments in a motion for summary judgment
pursuant to Rule 56.
Finally, the Defendants argue that should the Court determines the
Motion requires resolution as a Rule 56 Motion with the need for
discovery on the issue of arbitrability, it should stay all other
discovery and pleadings pending its decision on the Motion. The
Plaintiffs also ask the Court to stay discovery pending a decision
on the Motion.
Courts consider a number of factors when determining whether a
request to stay is appropriate, including "(1) whether a stay would
unduly prejudice or present a clear tactical disadvantage to the
non-moving party; (2) whether denial of the stay would create a
clear case of hardship or inequity for the moving party; (3)
whether a stay would simplify the issues and the trial of the case;
and (4) whether discovery is complete and/or a trial date has been
set."
Judge Salas holds that the balance of the factors weighs against a
stay of discovery. First, prejudice to the nonmoving party does not
weigh heavily in the Court's analysis because the Plaintiffs make
the same request. Second, fact discovery is nearly complete and has
been ongoing with respect to the newly added putative class members
for nearly a year. Third, granting a stay when fact discovery is
nearly complete and has been ongoing for almost a year would not
simplify the issues and trial of the case but would rather create
case management problems and unnecessary delay. Fourth, discovery
in the matter is nearly complete. Accordingly, Judge Salas declines
to stay discovery.
For the same reasons, she declines the Defendants' request to stay
the pleadings. Since the Plaintiffs have not opposed the request to
stay the pleadings, the first factor does not weigh heavily in the
Court's analysis. On the one hand, Judge Salas finds that denying a
stay of the pleadings could create a hardship for the Defendants,
because they would be required to file a responsive pleading with
respect to the claims of Sunkins, Hall, and Oguekwe regardless of
whether those plaintiffs' claims proceed to arbitration. However,
staying the pleadings altogether will not simplify the trial of the
case, but will rather unnecessarily delay its progression with
respect to the claims of Venson and Winfrey, who the Defendants do
not contend are subject to arbitration.
Alternatively, if Judge Salas were to stay the pleadings as to
Sunkins, Hall, and Oguekwe only, she says the Defendants would
still be required to file a responsive pleading as to Venson and
Winfrey. This could potentially require the Defendants to file
multiple answers for allegations that are overlapping -- which
would burden both the Defendants and the Court. Thus, the third
factor weighs against a stay. The fourth factor also weighs against
a stay of the pleadings because discovery is nearly complete.
Accordingly, on balance, Judge Salas declines the Defendants'
request to stay the pleadings.
For the reasons she stated, Judge Salas denies the Defendants'
Motion without prejudice to their ability to renew their
arbitrability arguments in a motion for summary judgment pursuant
to Rule 56, pending limited fact discovery on the issue of
arbitrability. The Defendants may file a renewed motion to compel
arbitration under Rule 56 within 30 days of the close of discovery.
Judge Salas denies the Defendants' and the Plaintiffs' requests to
stay discovery and the Defendants' request to stay the pleadings.
An appropriate Order accompanies Judge Salas' Opinion.
A full-text copy of the Court's Sept. 30, 2022 Opinion is available
at https://tinyurl.com/muxzn4ry from Leagle.com.
PROGRESSIVE DIRECT: Freeman Files Bid for Class Certification
-------------------------------------------------------------
In the class action lawsuit captioned as Lynn Freeman, on behalf of
herself and all others similarly situated, v. Progressive Direct
Insurance Company, Case No. 1:21-cv-03798-DCC (D.S.C.), the
Plaintiff asks the Court to enter an order certifying the following
class of individuals:
"All persons who made a first-party claim on a policy of
insurance issued by Progressive Direct Insurance Company
to a South Carolina resident who, from October 15, 2018
through the date an order granting class certification is
entered, received compensation for the total loss of a
covered vehicle, where that compensation was based on an
Instant Report prepared by Mitchell and the actual cash
value was decreased based upon Projected Sold Adjustments
to the comparable vehicles used to determine actual cash
value."
Progressive Direct Insurance Company has implemented a systemic and
uniform practice of undervaluing the amount owed to its insureds
when their vehicle is totaled. It is undisputed that when insureds
suffer a total loss to their vehicles, Progressive's form insurance
policy calls for payment of the vehicle’s actual cash value
(ACV), less any deductible.
Progressive, through its vendor, Mitchell, calculates ACV by using
the comparable, or "comp," methodology, which involves taking the
price of comparable vehicles listed for sale and then making
standard adjustments based on differences between the comparable
vehicles and the totaled vehicle for options, mileage, and
condition, which is an appropriate method to determine ACV.
For the entirety of the Class Period, Progressive used form
insurance policies with materially identical language for Plaintiff
and all Class members. The Policy explains that ACV will be
calculated based on the "market value, age, and condition" of the
vehicle.
The Plaintiff and all Class members experienced what Progressive
determined to be a total loss of their insured vehicles. A total
loss occurs where Progressive determines it is impossible or
uneconomical to repair the vehicle. Consistent with its Policy
terms, Progressive’s uniform practice is to base the total-loss
payment on the vehicle's ACV.
A copy of the Plaintiff's motion to certify class dated Sept. 30,
2022 is available from PacerMonitor.com at https://bit.ly/3McFCbH
at no extra charge.[CC]
The Plaintiff is represented by:
Beattie B. Ashmore, Esq.
BEATTIE B. ASHMORE, P.A.
650 E. Washington Street
Greenville, SC 29601
Telephone: (864) 467-1001
Facsimile: (864) 672-1406
E-mail: beattie@beattieashmore.com
- and -
Jeffrey S. Cashdan, Esq.
Zachary A. McEntyre, Esq.
J. Matthew Brigman, Esq.
Allison Hill White, Esq.
Julia C. Barrett, Esq.
KING & SPALDING LLP
1180 Peachtree Street, N.E.
Atlanta, Georgia 30309
Telephone: (404) 572-4600
Facsimile: (404) 572-5100
E-mail: jcashdan@kslaw.com
zmcentyre@kslaw.com
mbrigman@kslaw.com
awhite@kslaw.com
jbarrett@kslaw.com
PROGRESSIVE PALOVERDE: Class Certification Bid Due Feb. 3, 2023
---------------------------------------------------------------
In the class action lawsuit captioned as ROBIE KINSLEY,
individually and on behalf of others similarly situated, v.
PROGRESSIVE PALOVERDE INSURANCE COMPANY, Case No.
3:22-cv-00048-SDD-RLB (M.D. La.), the Hon. Judge Richard L.
Bourgeois, Jr. entered an order that the joint motion to amend
scheduling order is granted, and the scheduling order is amended as
follows:
1. Exchanging initial disclosures Expired
required by F.R.C.P. 26(a)(1) is:
2. The deadline to join other Expired.
parties or to amend the pleadings
is:
3. Disclosure of identities and
resumes of experts for class
certification:
Plaintiff(s): December 5, 2022
Defendant(s): January 11, 2023
4. Class certification motion and
exchange expert reports:
Plaintiffs' motion for class February 3, 2023
certification:
Plaintiffs' class certification February 3, 2023
expert report:
Defendant's opposition to motion April 7, 2023
for class certification:
Defendant's class certification April 7, 2023
expert report:
Plaintiffs' reply in support of May 8, 2023
class certification:
A copy of the Court's order dated Oct. 3, 2022 is available from
PacerMonitor.com at https://bit.ly/3T5QDOf at no extra charge.[CC]
RESOLUTE FOREST: Monteverde Firm Probes Possible 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:
Resolute Forest Products Inc. (NYSE: RFP), relating to its proposed
acquisition by The Paper Excellence Group, via Domtar Corp. Under
the terms of the agreement, RFP shareholders will receive $20.50 in
cash plus one Contingent Value Right per share they own. Click here
for more information:
https://www.monteverdelaw.com/case/resolute-forest-products-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 in 2013 and 2017-2019 as a Rising Star
and in 2022 as a Super Lawyer in Securities Litigation. 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, we have recovered or secured over a dozen 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]
ROYAL SEAS: McCurley Loses Renewed Bid to Certify Class
--------------------------------------------------------
In the class action lawsuit captioned as JOHN McCURLEY,
individually and on behalf of all other similarly situated, v.
ROYAL SEAS CRUISES, INC., Case No. 3:17-cv-00986-RSH-AGS (S.D.
Cal.), the Hon. Judge Robert S. Huie entered an order denying the
defendant's renewed motion to certify class and provisionally
granting defendant's motions to exclude reports and testimony, as
follows:
1. The Defendant's renewed motion to decertify class is
denied.
2. The Parties' objections filed in connection with the
above-mentioned motion, are overruled as moot.
3. The Defendant's Second Renewed Motion to Exclude Testimony
and Reports of Wesley Weeks is granted as to the witness's
reports on the grounds of hearsay, and is provisionally
granted as to the witness's testimony on grounds of 9
relevance, without prejudice to Plaintiff seeking leave to
present such testimony.
4. The Defendant's Second Renewed Motion to Exclude Testimony
and Reports of Christina Peters-Stasiewicz is granted as
to the witness's reports on the grounds of hearsay; and is
provisionally granted as to the witness's testimony on
grounds of relevance, without prejudice to Plaintiff
seeking leave to present such testimony.
5. The Defendant's Renewed Motion to Exclude Testimony and
Reports of Nathan Bacon is granted as to the witness's
report on the grounds of hearsay and is provisionally
granted as to the witness's testimony on grounds of
relevance, without prejudice to Plaintiff seeking leave to
present such testimony.
On the basis of relevance, the Court provisionally grants the Bacon
Motion and excludes any testimony to be offered by Bacon at trial.
The Plaintiffs must seek and obtain leave of Court before
presenting such testimony. Such a request must:
1. be tailored to the testimony that Plaintiffs actually seek
to present,
2. establish admissibility under Fed. R. Evid. 702 and
Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993),
and
3. identify how the testimony is consistent with the
disclosure requirements of Fed. R. Civ. P. 26.
On July 30, 2018, Plaintiffs filed a Motion to Certify Class. On
March 17, 2020, the Defendant filed a Motion to Decertify Class.
On March 23, 2020, the Defendant filed a motion to exclude the
testimony and report of Bacon. On March 27, 2020, both the
Defendant and Plaintiffs moved for summary judgment.
A copy of the Court's order dated Sept. 30, 2022 is available from
PacerMonitor.com at https://bit.ly/3Cb5TCC at no extra charge.[CC]
RUST-OLEUM CORP: Bush File Bid for Class Certification
------------------------------------------------------
In the class action lawsuit captioned as ANTHONY BUSH, individually
and on behalf of all others similarly situated, v. RUST-OLEUM
CORPORATION, Case No. 3:20-cv-03268-LB (N.D. Cal.), the Plaintiff
asks the Court to enter an order:
1. certifying a California Subclass of:
"All residents of California who, within four years prior
to the filing of this Complaint, purchased the Products;"
Excluded from the Class are: (i) Defendant, its assigns,
successors, and legal representatives; (ii) any entities
in which Defendant has controlling interests; (iii)
federal, state, and/or local governments, including, but
not limited to, their departments, agencies, divisions,
bureaus, boards, sections, groups, counsels, and/or
subdivisions; and (iv) any judicial officer presiding over
this matter and person within the third degree of
consanguinity to such judicial officer;
2. appointing him as Class Representative; and
3. appoinitng Ryan J. Clarkson, Katherine A. Bruce, and
Kelsey J. Elling of Clarkson Law Firm, P.C., and
Christopher D. Moon and Kevin O. Moon of Moon Law APC as
Class Counsel pursuant to Rule 23(g).
Rust-Oleum is a manufacturer of protective paints and coatings for
home and industrial use.
A copy of the Plaintiff's motion to certify class dated Sept. 28,
2022 is available from PacerMonitor.com at https://bit.ly/3V7Zgtp
at no extra charge.[CC]
The Plaintiff is represented by:
Ryan J. Clarkson, Esq.
Shireen M. Clarkson, Esq.
Katherine A. Bruce, Esq.
Kelsey J. Elling, Esq.
CLARKSON LAW FIRM, P.C.
22525 Pacific Coast Highway
Malibu, CA 90265
Telephone: (213) 788-4050
Facsimile: (213) 788-4070
E-mail: rclarkson@clarksonlawfirm.com
sclarkson@clarksonlawfirm.com
kbruce@clarksonlawfirm.com
kelling@clarksonlawfirm.com
- and -
Christopher D. Moon, Esq.
Kevin O. Moon, Esq.
MOON LAW APC
228 Hamilton Ave., 3 rd Fl
Palo Alto, CA 94301
Telephone: (619) 915-9432
Facsimile: (650) 618-0478
E-mail: chris@moonlawapc.com
kevin@moonlawapc.com
SCHMITT INDUSTRIES: Bids for Lead Plaintiff Appointment Due Dec. 12
-------------------------------------------------------------------
The Class: Robbins LLP informs investors that a shareholder filed a
class action on behalf of all persons who acquired shares of
Schmitt Industries, Inc. SMIT securities between September 1, 2020
and September 20, 2022, for violations of the Securities Exchange
Act of 1934.
What Now: Similarly situated shareholders may be eligible to
participate in the class action against Schmitt. Shareholders who
want to be appointed lead plaintiff for the class must file their
papers by December 12, 2022. A lead plaintiff is a representative
party acting on behalf of other class members in directing the
litigation. You do not have to participate in the case to be
eligible for a recovery. For more information, click here.
All representation is on a contingency fee basis. Shareholders pay
no fees or expenses.
What is this Case About: Schmitt Industries, Inc. (SMIT) Had
Deficient Internal Controls Over Financial Reporting
According to the complaint, defendants failed to disclose that: (1)
Schmitt continuously downplayed it serious issues with internal
controls; (2) Schmitt's financial statements from August 31, 2021
to the present included "certain errors"; and (3) as a result,
Schmitt would have to restate its previously filed financial
statements for certain periods.
On September 20, 2022, Schmitt announced it would restate its
financial statements from August 31, 2021 to the present, and
expected to report at least one material weakness. Further, the
Company's financial statements from August 31, 2021 through
February 28, 2022, should no longer be relied upon due to errors in
the treatment of certain general and administrative expenses that
were excluded from the statement of operations. On this news,
Schmitt's stock fell 17% to close at $3.12 per share on September
21, 2022. [GN]
SHOE SHOW: Smith Bid for Class Cert Denied w/o Prejudice
---------------------------------------------------------
In the class action lawsuit captioned as SARAH SMITH, MICHAEL
CRISCO, JEFFREY MORROW, Individually and as representatives of a
class of similarly situated persons, v. SHOE SHOW, INC., BOARD OF
TRUSTEES OF SHOE SHOW RETIREMENT SAVINGS PLAN; JOHN VAN DER POEL,
ROBERT TUCKER, LISA TUCKER, and SPENCER NORTHCUTT, Case No.
1:20-cv-00813-WO-JEP (M.D.N.C.), the Court entered an order denying
without prejudice motion for class certification and motion for
appointment of Fitzgerald Law as Class Counsel.
The Court said, "On September 29, 2022, the Plaintiffs filed their
Motion for preliminary approval of class Action settlement,
preliminarily certifying a class for settlement purposes, approving
form and manner of settlement notice, preliminarily approving plan
of allocation and scheduling a date for a fairness hearing. In that
motion, Plaintiffs move for appointment of Class Representatives
and Class Counsel.
Shoe Show is an American footwear retailer based in Concord, North
Carolina. It operates shoe stores throughout the United States
under the brands Shoe Show, The Shoe Dept., The Shoe Dept. Encore,
Shoebilee!, Burlington Shoes, and Shoe Show Mega.
A copy of the Court's order dated Sept. 30, 2022 is available from
PacerMonitor.com at https://bit.ly/3VdqE9B at no extra charge.[CC]
SILVERBACK THERAPEUTICS: Monteverde Firm 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:
Silverback Therapeutics, Inc. (Nasdaq: SBTX), relating to its
proposed merger with ARS Pharmaceuticals, Inc. Under the terms of
the agreement, SBTX equity holders are expected to own
approximately 37% of the combined company. Click here for more
information:
https://www.monteverdelaw.com/case/silverback-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 in 2013 and 2017-2019 as a Rising Star
and in 2022 as a Super Lawyer in Securities Litigation. 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, we have recovered or secured over a dozen 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]
SOLARWINDS CORP: NYC District Council File Bid for Class Status
---------------------------------------------------------------
In the class action lawsuit re SolarWinds Corporation Securities
Litigation, Case No. 1:21-cv-00138-RP (W.D. Tex.), the Lead New
York City District Council of Carpenters Pension Fund asks the
Court to enter an order:
1. certifying this action as a class action under Federal
Rule of Civil Procedure 23;
2. appointing Lead Plaintiff as the Class Representative; and
3. approving Lead Plaintiff'’s selection of Bernstein
Litowitz as Class Counsel.
The action asserts claims under Sections 10(b) and 20(a) of the
Securities Exchange Act against SolarWinds, two of its top
executives, and the Private Equity companies that control it.
Like most securities-fraud actions, this case is ideally suited for
class certification because it arises from common public
misrepresentations and omissions that harmed tens-of-thousands of
investors in SolarWinds stock in a like manner during the Class
Period, the lawsuit says.
A copy of the Plaintiff's motion dated Sept. 30, 2022 is available
from PacerMonitor.com at https://bit.ly/3SUBZcC at no extra
charge.[CC]
The Plaintiff is represented by:
Gerald T. Drought, Esq.
Frank B. Burney, Esq.
MARTIN & DROUGHT, P.C.
Weston Centre
112 E. Pecan Street, Suite 1616
San Antonio, TX 78205
Telephone: (210) 227-7591
Facsimile: (210) 227-7924
E-mail: gdrought@mdtlaw.com
- and -
Jonathan D. Uslaner, Esq.
John J. Rizio-Hamilton, Esq.
Benjamin W. Horowitz, Esq.
Thomas Z. Sperber, Esq.
BERNSTEIN LITOWITZ BERGER
& GROSSMANN LLP
1251 Avenue of the Americas
New York, NY 10020
Telephone: (212) 554-1400
Facsimile: (212) 554-1444
E-mail: JonathanU@blbglaw.com
Johnr@blbglaw.com
Benjamin.Horowitz@blbglaw.com
Thomas.Sperber@blbglaw.com
SOULBOUND STUDIOS: Class Action Over Investment Refund Dismissed
----------------------------------------------------------------
Joseph Bradford at mmorpg.com reports that for those who have been
wondering about the status of the ongoing class action lawsuit
against Chronicles of Elyria developer Soulbound Studios, it looks
as though that lawsuit has been dismissed in court. As such, Elyria
founder Jeromy Walsh took to the quarterly update to do a victory
lap of sorts over the news.
The lawsuit, which was filed in response to Chronicles of Elyria
abruptly shutting down after delivering not more than a basic
parkour demo in 2020, was filed by backers who were demanding
refunds of their investment in Elyria. This is because Elyria, a
Kickstarted MMORPG, failed to deliver on the promises made by Walsh
when the funding began.
Walsh a few weeks later rolled this back, claiming that he
effectively misspoke and that the studio hadn't shuttered. However,
a few weeks later, backers who were filing suit had already started
to hear from the Washington State Attorney General on the case.
The lawsuit has progressed since then, with updates over the last
two years such as the fact the California suit was merged with the
Washington lawsuit as well as the news that the suit against SBS
had to conclude before the Xsolla fight could be taken up coming in
slowly. However, in an update to the Elyria website, Walsh himself
is stating that the lawsuit itself has been dismissed. And the fact
that he's publicly talking about it lends weight to the claim, as
legally speaking most companies will not speak directly on ongoing
litigation.
However, discussion in the ongoing COE Lawsuit Discord channel
where many of those who have filed suit against SBS have gathered
started to talk around the 6th of October about the possibility the
lawsuit itself was dismissed. The official court document, filed on
the 3rd of October, confirms this.
As such, Walsh took to the most recent quarterly update to give
readers an update on the studio, Kingdoms of Elyria, and do a weird
victory lap regarding the lawsuit's dismissal.
Walsh goes on to spin this as a victory for those companies who are
looking at crowdsource funding as their primary way to make a game
happen, stating that those who raise the funds to build the game
need to feel "secure" in that they won't be required to pay back
funds in the result of a failed project.
Weirdly, while this is an obvious victory for Walsh himself, he
extends that victory to the backers of Chronicles of Elyria as
well, spinning it as a way for the team to now focus all its
efforts on making CoE finally come to fruition. This is also before
Walsh admits that there hasn't been any meaningful work done on
Kingdoms of Elyria, the stand-alone sim that is meant to fuel the
development of the MMO that was actually promised, from an
engineering standpoint, in months.
Instead, Walsh has been working as a software engineer outside of
Chronicles of Elyria to keep the studio afloat, and in line with
the previous Quarterly update where he basically claimed he had no
more money, Walsh talks about how he's effectively mortgaged his
future on this game in order to fund the studio.
Claiming to be $500K in debt without any actual income coming in
for two years (as well as taking out over $250K of taxpayer dollars
in Covid-19 PPP Loans), Walsh acknowledges too that the dream of
being picked up by an investor or publisher is likely out of the
window thanks to the lawsuit. He also blames "the current sentiment
and misinformation" that exists about SBS on the internet as not
being an attractive candidate to be acquired.
Walsh also states that he hopes that this prompts the most
"cynical" of backers to give this another try, though if future
tests try to throw shady NDA language at them as has been done in
the past, they might not.
As it stands now, the decision can likely be appealed in court,
though whether those will be willing to move forward on appeals
remains to be seen. What also remains to be seen is whether Walsh
can hit the updated timeline of 2024 for the release of Chronicles
of Elyria. [GN]
SSM HEALTH: Brashear Seeks to Certify Class of Hourly Employees
---------------------------------------------------------------
In the class action lawsuit captioned as SARAH J. BRASHEAR,
Individually and on behalf of all others similarly situated, v. SSM
HEALTH CARE CORPORATION, Case No. 4:22-cv-00569-SRC (E.D. Mo.), the
Plaintiff asks the Court to enter an order:
1. conditionally certifying a class of:
"all hourly employees who worked for SSM Health Care
Corporation, or any of its subsidiaries, anywhere in the
United States, at any time from May 24, 2019 through the
final disposition of this matter, and were subject to an
automatic meal break pay deduction pursuant to the Fair
Labor Standards Act (FLSA;"
2. approving the form of Plaintiffs' proposed Notice;
3 setting a 60 day notice period;
4. authorizing Plaintiffs' counsel to mail, e-mail, and text-
message the Notice at the beginning of the 60 day notice
period;
5. authorizing the Plaintiffs' counsel to send a reminder
Notice 30 days prior to the notice deadline;
6. directing SSM to post the Court-approved Notice in a
conspicuous location next to the time clocks at all SSM
worksites for the duration of the 60-day opt-in period;
7. directing SSM to produce a list of all Putative Class
Members, in a computer readable format (such as Excel),
who worked for SSM at any time from May 24, 2019 through
the final disposition of this matter and were subject to
an automatic meal break pay deduction, including each
Putative Class Members' contact information;
SSM Health is a Catholic, not-for-profit United States health care
system with 11,000 providers and nearly 39,000 employees in four
states, including Wisconsin, Oklahoma, Illinois, and Missouri.
A copy of the Plaintiff's motion to certify class dated Sept. 30,
2022 is available from PacerMonitor.com at https://bit.ly/3ebSQJ6
at no extra charge.[CC]
The Plaintiff is represented by:
Sarah Jane Hunt, Esq.
LAW OFFICES OF KENNEDY HUNT, P.C.
906 Olive Street, Suite 200
St. Louis, MO 63101
Telephone: (314) 872-9041
Facsimile: (314) 872-9043
E-mail: sarahjane@kennedyhuntlaw.com
- and -
Clif Alexander, Esq.
Carter T. Hastings, Esq.
ANDERSON ALEXANDER , PLLC
819 N. Upper Broadway
Corpus Christi, TX 78401
Telephone: (361) 452-1279
Facsimile: (361) 452-1284
E-mail: clif@a2xlaw.com
carter@a2xlaw.com
STERIGENICS US: Scheduling Order Entered in Vallejo Class Suit
--------------------------------------------------------------
In the class action lawsuit captioned as ALEXANDER VALLEJO,
individually and on behalf of others similarly situated, v.
STERIGENICS U.S., LLC, et al., Case No. 3:20-cv-01788-AJB-AHG (S.D.
Cal.), the Hon. Judge Allison H. Goddard entered a scheduling order
setting discovery deadlines and class certification motion deadline
as follows:
1. Any motion to join other parties, November 21, 2022
amend the pleadings, or file
additional pleadings shall be
filed by:
2. Fact and class discovery are not February 3, 2023
bifurcated, but class discovery
must be completed by:
3. The Plaintiff must file a motion March 17, 2023
for class certification by:
Sterigenics provides bio-technological services. The Company offers
medical and pharmaceutical sterilization, laboratory testing, and
food safety.
A copy of the Court's order dated Oct. 3, 2022 is available from
PacerMonitor.com at https://bit.ly/3Miu86w at no extra charge.[CC]
SYNCHRONY BANK: Lucas Seeks to Certify Settlement Class
-------------------------------------------------------
In the class action lawsuit captioned as DIANNE BEAR KING LUCAS, on
behalf of herself and others similarly situated, v. SYNCHRONY BANK,
Case No. 4:21-cv-00070-PPS-JEM (N.D. Ind.), the Plaintiff asks the
Court for an order preliminarily approving the settlement she
reached with Synchrony, on behalf of herself and the following
settlement class:
"All persons and entities throughout the United States
(1) to whom Synchrony Bank placed, or caused to be placed
(either by one of its own employees or by an agent or
vendor), a call,
(2) directed to a telephone number assigned to a cellular
telephone service,
(3) in connection with which Synchrony Bank or one of its
agents or vendors used an artificial or prerecorded
voice,
(4) from October 16, 2020 through the date of the preliminary
approval order,
(5) where the subject of the call was a Synchrony Bank
account that did not belong to the recipient of the
call, and
(6) where the recipient of the call did not provide
Synchrony Bank the telephone number to which it placed,
or caused to be placed, the call."
The settlement requires Synchrony to create a non-reversionary cash
settlement fund of $2,600,000. Each participating member of the
class will be entitled to his or her pro rata share of the
settlement fund, less the costs of notice and claims
administration, and any attorneys' fees, litigation costs,
expenses, and service award that this Court approves.
Ms. Lucas and her counsel -- whose qualifications include
substantial experience with Telephone Consumer Protection Act
(TCPA) class actions -- believe the settlement is fair,
reasonable, and adequate under Federal Rule of Civil Procedure
23(e), and in the best interests of the members of the class.
A copy of the Plaintiff's motion to certify class dated Sept. 30,
2022 is available from PacerMonitor.com at https://bit.ly/3fOXvBc
at no extra charge.[CC]
The Plaintiff is represented by:
Max S. Morgan, Esq.
THE WEITZ FIRM, LLC
1515 Market Street, #1100
Philadelphia, PA 19102
Telephone: (267) 587-6240
E-mail: max.morgan@theweitzfirm.com
- and -
Aaron Radbil, Esq.
Michael Greenwald, Esq.
GREENWALD DAVIDSON RADBIL PLLC
5550 Glades Road, Suite 500
Boca Raton, FL 33431
Telephone: (512) 803-1578
E-mail: aradbil@gdrlawfirm.com
mgreenwald@gdrlawfirm.com
- and -
Anthony I. Paronich
PARONICH LAW, P.C.
350 Lincoln Street, Suite 2400
Hingham, MA 02043
Telephone: (617) 485-0018
E-mail: anthony@paronichlaw.com
TETHER LTD: Roche Freedman Removed From Manipulation Class Suit
---------------------------------------------------------------
Jamie Redman at bitcoin.com reports that after a Manhattan federal
judge blasted Roche Freedman LLP founding partner Kyle Roche's
public statements, the judge has removed the crypto boutique law
firm from the market manipulation lawsuit against Tether and
Bitfinex. The recent hearing has shown that U.S. district judge,
Katherine Polk Failla, believes the litigation process could be
derailed. She further stressed that "the metaphorical baggage"
Roche Freedman carries "is not in the best interests of the
class."
Judge Boots Roche Freedman From Class Action Lawsuit Against Tether
and Bitfinex
At the end of August, the Roche Freedman LLP founding partner Kyle
Roche found himself amid a lot of controversies, as a series of
videos published by Crypto Leaks saw him discussing specific
relationships with certain crypto businesses. On August 31, Roche
removed himself from a number of crypto-related class action
lawsuits and he further addressed the Crypto Leaks videos. He said
that the leaked videos contained "numerous unsourced false
statements" that were "illegally obtained." Roche added:
[The] highly edited video clips [are] not presented with accurate
context.
However, following the leaks, Tether's legal representation, Elliot
Greenfield of Debevoise & Plimpton LLP, asked the court to remove
the law firm Roche Freedman from the class-action lawsuit. Tether's
lawyer Elliot Greenfield said that the leaks and Roche's
involvement with the class-action lawsuit raises "grave concerns
for the defendants regarding the motivations behind the lawsuit."
Furthermore, the crypto exchange companies Bittrex and Poloniex
sent a request to the judge as well, asking her to remove Kyle
Roche's law firm from the court proceedings.
Following the requests from Tether, Poloniex, and Bittrex,
law360.com reported that the "Manhattan federal judge blasted Roche
Freedman LLP founding partner Kyle Roche's 'uniquely stupid'
comments." Then, both Bloomberg Law and law360.com published
reports that indicate U.S. district judge Katherine Polk Failla has
removed Roche Freedman from the lawsuit. Failla explained that
Roche's public comments were "too detailed to dismiss out of
hand."
The law firms Selendy Gay Elsberg and Schneider Wallace will take
the reins in the class action lawsuit, after Roche Freedman's
official disqualification. Failla said that the law firm could
still serve as counsel, but she stressed that "the metaphorical
baggage" Roche Freedman carries "is not in the best interests of
the class." Bloomberg Law contributor Justin Wise further adds that
"Roche Freedman faces disqualification motions in at least four
other cases, according to federal court filings." [GN]
TRI-COUNTY TELEPHONE: Court Dismisses Fraud Class Action Lawsuit
----------------------------------------------------------------
Caleb Nelson at mybighornbasin.com reports that on October 11th,
2022, the Fifth Judicial District Court, Park County, Wyoming,
entered summary judgment in favor of Neil Schlenker, Chris
Davidson, Steve Harper, Dalin Winters, Clifford Alexander, J.O.
Sutherland, Daniel Greet, John K. Johnson, and Tri-County Telephone
Association, together with its affiliated companies, dismissing the
class action lawsuit filed against those defendants and pursued by
Joe Campbell, Barbara Campbell, and William (Bill) Loveland.
In their lawsuit, the Campbells and Loveland make the accusations
that TCT was acquired through a grand scheme of fraud, deceit, and
collusion. Through their filings with the court and through various
statements previously made on the Plaintiffs' behalf to news
outlets, without factual support, the Plaintiffs disparaged the
character of the former officers and directors of TCT and the
parties to the transaction.
While noting the repeated arguments of Plaintiffs filled with what
was characterized in the order as "vitriolic assertions, beliefs,
and opinions regarding the issue of fraud," the Court determined
that the Plaintiffs had failed to show any evidence that fraud or
other wrongful conduct occurred. The Court's order, which dismisses
the class action lawsuit, states, "Plaintiffs have failed to
present specific facts demonstrating that a genuine issue of
material fact exists as to intentional torts or illegal acts."
The Court's order states that the "Plaintiffs must do more than
loudly and repeatedly state their allegations and opinions. They
must provide some measure of proof, evidentiary facts to support
their position and overcome the business judgment rule, which they
have failed to do."
TCT, together with its parent company, BHT, is "pleased with the
court's ruling." Having intimate knowledge of the extraordinary and
honest efforts of all involved in the transaction, TCT has
vigorously defended this litigation with the expectation of
receiving an order dismissing the claims, which were brought by the
Plaintiffs without factual support.
The court's recent order is seen as a full vindication of the
honest and diligent efforts of the former officers and directors to
negotiate and present to the cooperative members, for their
approval, a transaction in the interests of those members, the
company, and our community.
TCT looks forward to rediverting resources, which have for many
years been spent on unnecessary litigation defending against false
accusations, to the core function of providing state-of-the-art
telecommunications services to our customers and community.[GN]
UNILEVER UNITED: Krause-Pettai Seek to Certify Class Action
-----------------------------------------------------------
In the class action lawsuit captioned as NICOLE KRAUSE-PETTAI,
KEVIN BOLDEN, ERROL CARREON, CHRISTY STEVENS, individually and on
behalf of all others similarly situated, v. UNILEVER UNITED STATES,
INC., a corporation; and DOES 1-10, inclusive, Case No.
3:20-cv-01672-LL-BLM (S.D. Cal.), the Plaintiff asks the Court to
enter an order:
1. Certifying this case as a class action;
2. Appointing the above-named Plaintiffs as class
representatives;
3. Appointing Marlin & Saltzman, LLP as Class Counsel.
This class action is brought on behalf of California consumers of
top-selling deodorant and antiperspirant products manufactured by
Unilever. For more than a half-century, Congress has recognized the
inherently deceptive nature of some packaging to consumers.
Unilever manufactures personal care products.
A copy of the Plaintiffs' motion dated Sept. 30, 2022 is available
from PacerMonitor.com at https://bit.ly/3rBPbr5 at no extra
charge.[CC]
The Plaintiff is represented by:
Stanley D. Saltzman, Esq.
Joel M. Gordon, 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
jgordon@marlinsaltzman.com
UNITED HEALTH: Settlement Final Approval Hearing Set Feb. 8, 2023
-----------------------------------------------------------------
You are a person who was potentially impacted by a Data Security
Incident in the United States affecting United Health Centers of
the San Joaquin Valley's computer network that occurred on or
around August 28, 2021.
A State Court authorized this notice. This is not a solicitation
from a lawyer.
Why Did I Get This Notice? A class action Settlement agreement and
release ("Settlement Agreement") has been reached in a lawsuit
entitled Avetisyan v. United Health Centers of the San Joaquin
Valley, No. 22-CEG-285, pending in the California Superior Court,
Fresno County. The lawsuit alleges that as the result of a
cyberattack by an unauthorized third party to certain computer
systems of United Health Centers of the San Joaquin Valley ("UHC"),
personal information and protected health information stored by
UHC, including names, Social Security Numbers, dates of birth,
medical treatment information, health insurance information, and
other information may have been compromised on or about August 28,
2021 (the "Data Security Incident"). UHC maintains that it had
meritorious defenses, and it was prepared to vigorously defend the
lawsuit but encourages all persons who qualify as members of the
Settlement Class to participate in the Settlement.
Who Is Included? UHC's records indicate you are included in the
Settlement as a Settlement Class Member because your information
may have been involved in the Data Security Incident.
What Are The Settlement Benefits?
-- All persons potentially affected by the Data Security
Incident, including Settlement Class Members, shall have the option
to sign-up for the Settlement Offering and are being provided with
three years of free credit monitoring and identity restoration
services regardless of whether they otherwise exclude themselves
from the Settlement.
-- Any Settlement Class Member may submit a Claim for
reimbursement for documented Economic Losses related to the Data
Security Incident that have not been reimbursed by other third
parties, up to an aggregate total of $2,500.00 per Settlement Class
Member. Economic Losses shall be deemed fairly traceable to the
Data Security Incident if (i) the alleged wrongdoing occurred on
August 28, 2021 or thereafter, (ii) the Settlement Class Member
executes a statement signed under penalty of perjury indicating
that the Economic Losses claimed are fairly traceable to the Data
Security Incident, (iii) the alleged wrongdoing involved misuse of
the type of personal information impacted by the Data Security
Incident (i.e., name, address, Social Security Number, date of
birth, medical treatment information, health insurance information,
etc.), and (iv) the Settlement Administrator determines by a
preponderance of evidence that it is fairly traceable to the Data
Security Incident.
-- Any Settlement Class Member may submit a Claim for
Non-Economic Losses fairly traceable to the Data Security Incident,
up to $500.00 per Settlement Class Member.
How Do I Receive Settlement Benefits? To enroll in the credit
monitoring and identity restoration services, utilize the code and
instructions indicated on the correspondence within this package.
To receive the other Settlement Benefits, Settlement Class Members
must submit a Claim Form to the Settlement Administrator by
November 19, 2022. The forms are available at
www.UHCofSJVdatabreach.com by calling 1-877-354-3821, or by writing
to the Settlement Administrator at Avetisyan v. United Health
Centers of the San Joaquin Valley, c/o A.B. Data, Ltd., P.O. Box
173005, Milwaukee, WI 53217. Both forms may be submitted through
the Settlement Website or by mail to the Settlement Administrator.
What Are My Options? You can do nothing, enroll in the three years
of free credit monitoring and identity restoration services, submit
a Claim Form or a Reimbursement Form, or exclude yourself from the
Settlement. If you do nothing or submit a Claim or Reimbursement
Form, your rights will be affected. You will not be able to sue UHC
in a future lawsuit about the claims addressed in the Settlement.
If you exclude yourself, you will not receive the listed Settlement
Benefits (except you may still enroll in the three years of credit
monitoring and identity restoration services) -- but you will keep
your right to sue UHC in a separate lawsuit on the issues covered
by the Settlement. You must contact the Settlement Administrator by
mail to exclude yourself. If you do not exclude yourself, you can
object to the Settlement, Class Counsel's request for fees and
expenses, or the Settlement Class Representative's requests for
service awards.
All Requests for Exclusion and Objections must be postmarked or
filed in person by November 19, 2022.
The Final Approval Hearing. The Court will hold a Final Approval
Hearing at 3:30 p.m. Pacific Time, on February 8, 2023, at the
Fresno County Superior Court, 1100 Van Ness Ave., Fresno, CA 93724.
At the Final Approval Hearing, the Court will consider whether the
proposed Settlement is fair, reasonable, and adequate. The Court
may also consider Settlement Class Counsel's request for attorneys'
fees and costs of up to $562,674.78 and a service award of $5,000
to the Settlement Class Representative that filed this lawsuit. If
there are objections, the Court will consider them.
Getting More Information. More information, including the
Settlement Agreement and other related documents, is available at
www.UHCofSJVdatabreach.com.
Source:
Meyer Wilson Co., LPA [GN]
UNITED STATES: Civil Rights Lawyer Sues on Behalf of Black Farmers
------------------------------------------------------------------
Stacy M. Brown at washingtoninformer.com reports that renowned
civil rights attorney Ben Crump, informally known as "Black
America's Attorney General," announced a class-action suit against
the U.S. government on behalf of the National Black Farmers
Association.
The lawsuit comes amid findings that Black farmers lost about $326
billion of land in America because of discrimination during the
20th century.
During the announcement of the suit on the National Mall in
Washington, Crump and the farmers claimed the federal government
breached its contract with socially disadvantaged farmers under the
American Rescue Plan Act.
Farmers contend that the law included provisions to pay off USDA
loans held by 15,000 African Americans, Native Americans, Alaskan
Natives, Asian Americans, Pacific Islanders, and Hispanics and
Latinos in the farming industry.
In August, Congress repealed section 1005 of the American Rescue
Plan Act of 2021, which provided funding and authorization for the
federal government to pay up to 120% of direct and guaranteed loan
outstanding balances as of Jan. 1, 2021, for socially disadvantaged
farmers and ranchers, breaking the government's promise and leaving
farmers in foreclosure.
Black farmers said they relied on the federal government to keep
its promise to fund $5 billion to the farmers when it passed the
American Rescue Plan Act.
"Black and other farmers of color did exactly what the government
asked them to do - they maintained or expanded their operations to
strengthen America's food supply during the COVID-19 crisis," Crump
said. "They believed the U.S. government's promises. They took
Congress and the [Biden] administration at their word, expecting
that the government would pay off their debt, as the USDA promised
in writing.
"Instead, it was 40 acres and a mule all over again, 150 years
later - broken promises that doomed generations of Black farmers to
become sharecroppers and robbed Black families of billions in
intergenerational wealth," he said.
With Crump at the helm, Black farmers across the country said
they're prepared to fight for the money promised.
"I'm very disappointed in this legislative action," said John
Wesley Boyd Jr., founder and president of the National Black
Farmer's Association, a nonprofit representing African American
farmers and their families. "I'm prepared to fight for debt relief
for Black, Native American, and other farmers of color all the way
to the Supreme Court. I'm not going to stop fighting this."
A 2019 report highlighted how many federal agencies have
systemically discriminated against Black farmers, including the
USDA.
"If you are Black and you're born south of the Mason-Dixon Line,
and you tried to farm, you've been discriminated against," Lloyd
Wright, director of the USDA Office of Civil Rights under Bill
Clinton and Barack Obama, and a Black Virginia farmer, said in the
report.
The report noted that the debts Black farmers consequently accrued
"cost them millions of acres, which white buyers then snapped up."
In 1920, Black farmers peaked at nearly 1 million, constituting 14%
of all farmers. But between 1910 and 1997, they lost 90% of their
property. By contrast, white farmers lost only 2% in the same
period.
As of 2017, there were just 35,470 Black-owned farms, representing
1.7% of all farms.
Black farmers lost some 16 million acres, Conservatively estimated
to be worth between $250 billion and $350 billion in current
dollars.
Lawrence Lucas, president emeritus of the USDA Coalition of
Minority Employees and representative of the Justice for Black
Farmers Group, said USDA Secretary Thomas Vilsack had done nothing
to help Black farmers.
"The amount of wealth loss could be in the trillions of dollars,"
Lucas said. "We've had administration after administration,
president after president, and Congress after Congress does
nothing. Secretary Vilsack was a disaster even when he worked under
President Obama, who wasn't good to us."
In a letter to the agriculture secretary, Lucas expressed his
disappointment.
"We have watched with disbelief and discouragement as a sequence of
events played out in a self-fulfilling prophesy: a Vilsack
agriculture transition team member declared that what we wanted,
debt relief for Black farmers, was unconstitutional," Lucas wrote.
"We contend that there was an unnecessary length of time spent on
Senator Warnock's two bills, voted into the American Rescue Plan
Act of 2021, and the decision by a Florida judge to issue a
temporary restraining order against you, which stopped relief for
Black farmers."
"We contend that you slow-walked the processing of these claims
with a process that went beyond 100 days," Lucas continued. "With
the stroke of your pen, we are fully aware that you could have
removed the debt these farmers have suffered because of USDA's long
history of discrimination, not a process but debt relief.
"Instead, we have white privilege that continues to be a part of
the USDA landscape at the pain and suffering of Black farmers and
others.
"[Former President Donald] Trump paid out $16 billion in allotments
to white farmers quickly, and Black farmers received only a small
fraction of those funds," he wrote. "Why for them and not us?"[GN]
UNITED STATES: Defends Record Amid Lawsuit From Black Farmers
-------------------------------------------------------------
April Ryan at thegrio.com reports that the White House on touted
its efforts to provide relief for Black American farmers on the
same day that the federal government was hit with a class action
lawsuit by said farmers, who say the government broke its promise
to keep their farms afloat throughout and after the COVID-19
pandemic.
The Biden administration reacted to the lawsuit with a statement
from the United States Department of Agriculture (USDA) that does
not explicitly mention the lawsuit that was announced and filed in
the United States Court of Federal Claims on Oct. 7. However, the
government sought to clarify its position after lawsuits filed by
white farmers, who claimed they were discriminated against, led to
court injunctions that froze the $5 billion intended to relieve
Black and minority farmers.
The funding was earmarked in the American Rescue Plan, which was
signed into law by President Joe Biden in March 2021. It quickly
drew outrage from Republicans like Sen. Lindsey Graham, R-S.C., who
called the policy "reparations," while others claimed it was
reverse discrimination.
A group of Black farmers, represented by famed civil rights
attorney Ben Crump, says the U.S. government breached its
"contractual rights" when it repealed the provision in ARP that
would've provided the federal funding for "socially disadvantaged"
farmers, particularly Black farmers who had been historically
discriminated against by USDA.
Crump compared the "breached contract" to the 40 acres and a mule
that was promised to enslaved African Americans during the American
Civil War - a pledge of land that never came to fruition. The civil
rights attorney is calling for the exact amount of funding ($5
billion) initially included in ARP to be awarded to the
plaintiffs.
He told theGrio the objective of the lawsuit is to "make the
federal government live up to the promise that the Black farmers
and the brown farmers relied on when they passed the American
Rescue Plan."
"The powers that be, for whatever reason, started to scream reverse
discrimination. And then the government broke their promise," said
Crump. "They did not stand up and fight for the Black farmers to
get equal justice and equal opportunity after it was clear that so
many times Black farmers and brown farmers, Asian farmers and
native farmers have been discriminated against."
Crump also noted that Black and minority farmers relied on the
promise of debt relief by the federal government, so much so that
they invested in new equipment and land. The plaintiffs say they
are now in jeopardy of losing their farms and livelihood.
Leon W. Russell, chair of the National Board of Directors at NAACP,
told theGrio that Crump's lawsuit on behalf of Black and brown
farmers is an "excellent strategy," noting that Black farmers have
been promised relief for decades. "Promises have not been kept," he
said.
While the administration says it is adamant about fighting for
Black farmers, it defended its decision to repeal the ARP
provision. In a statement, USDA said had they not, the legal battle
"would likely have not been resolved for years."
The Biden-Harris administration noted that in the Inflation
Reduction Act, Democratic senators provided $3.1 billion for
"distressed borrowers" and an additional $2.2 billion to provide
financial assistance for farmers who "have suffered discrimination
by USDA farm loan programs." However, the bill's language no longer
mentioned race as a specific criterion.
In a previous statement at the time of the IRA's passage on Capitol
Hill, Sen. Cory Booker, D-N.J., who co-sponsored the new
provisions, said "those farmers, particularly Black farmers, who
have suffered USDA discrimination, this legislation sets in motion
a process to right those wrongs."
In the early 20th century, there were many Black farmers in the
United States. In a previous interview with theGrio, Black farmers
advocate and former USDA state director, Shirley Sherrod, estimated
that there were "almost a million Black farmers somewhere around
1910 or so," who she said, "owned about 15 million acres of
farmland."
Today, the number of Black farmers is said to be dismal, as many of
them had to shut down their businesses due to a lack of capital.
Additionally, many were denied loans from the Department of
Agriculture because of alleged discrimination. A settlement was
eventually reached during the Obama administration to the tune of
$1.25 billion. [GN]
UNITED STATES: XRP Holders Join Class Action Suit Over Huge Losses
------------------------------------------------------------------
Lele Jima at thecryptobasic.com reports that the number of Ripple
(XRP) holders represented by attorney John Deaton in a class action
against the Securities and Exchange Commission has continued to
increase.
Over 75,000 XRP holders have joined Deaton's class action against
the SEC. A few weeks after, attorney Deaton disclosed that the
number of XRP holders in the suit had surpassed 71,000.
As the lawsuit between the SEC and Ripple enters the summary
judgment phases, more XRP holders see the need to join Deaton's
class action.
The class action is due to the huge losses XRP investors suffered
following a lawsuit filed by the SEC against Ripple. The Securities
and Exchange Commission claims that XRP is a security, adding that
Ripple breached U.S. securities laws by conducting an unregistered
offering for the cryptocurrency in 2013.
After the SEC filed the lawsuit, several United States-based crypto
exchanges like Coinbase were prompted to discontinue support for
XRP. These cryptocurrency exchanges fear that the SEC could probe
them for facilitating the trading of XRP, which it claims to be a
security.
Following the de-listing of XRP from various U.S.-based exchanges,
the value of XRP crashed tremendously, plunging many investors into
huge losses. Ripple General Counsel Stuart Alderoty described the
SEC lawsuit against the SEC as a rug pull on XRP investors.
Attorney Deaton's Push for Justice
Meanwhile, attorney Deaton is determined to get justice for XRP
victims of the SEC lawsuit, and the process has continued to gain
momentum.
In a recent tweet, the Crypto Law founder called on the XRP
community to provide info about Ripple, Bitcoin, and Ethereum's
market capitalization as of January 3, 2018.
"I need help with something. How can I determine how much of the
total market cap Bitcoin, ETH, and XRP made up in January 2018?. .
. " Deaton requested.
The official Crypto Law Twitter account also echoed Attorney
Deaton's request, asking community members to engage with Deaton
for the required information as he continues to work on behalf of
75K XRP holders. [GN]
VALLEY BROOK, OK: Class Cert Bid Filing Due April 2, 2023
---------------------------------------------------------
In the class action lawsuit captioned as KIMIESHA HILL, et al., on
behalf of themselves and all others similarly situated, v. TOWN OF
VALLEY BROOK, et al., Case No. 5:21-cv-00097-SLP (W.D. Okla.), the
Hon. Judge Scott L. Palk entered an order that the Plaintiffs shall
file a motion for class certification on or before March 2, 2023.
Any response(s) to that motion shall be filed on or before April
17, 2023.
The filing of any reply in support of the class certification
motion shall be governed by the Local Civil Rules of this Court.
Further deadlines may be established in a Phase II Specialized
Scheduling Order after the Court's ruling on the motion for class
certification.
Valley Brook is a town in Oklahoma County, Oklahoma, United States
and is part of the Oklahoma City Metropolitan Area.
A copy of the Court's order dated Oct. 3, 2022 is available from
PacerMonitor.com at https://bit.ly/3elSIac at no extra charge.[CC]
VENETIAN CASINO: Suit Seeks to Certify Rule 23 Class & Subclass
---------------------------------------------------------------
In the class action lawsuit captioned as MUSTAFA YOUSIF and SHARONE
WALKER on behalf of themselves and all others similarly situated,
v. The Venetian Casino Resort, LLC, et al., Case No.
2:16-cv-02941-RFB-NJK (D. Nev.), the Plaintiff asks the Court to
enter an order:
1. granting certification of the following class and subclass
of persons pursuant to Rule 23 of the Federal Rules of
Civil Procedure:
-- Nevada Class
"All current and former non-exempt hourly paid
employees employed as housekeepers by Defendant The
Venetian Casino Resort, LLC, at any time from October
27, 2014, to the present;"
-- Wages Due and Owing Subclass
"All members of the Nevada Class who, at any time
during the Class Period, were terminated or otherwise
separated from employment."
2. appointing them as Class Representatives of the Class and
Subclass;
3. appointing Joshua D. Buck, Mark R. Thierman, Leah L.
Jones, and Joshua R. Hendrickson, of Thierman Buck LLP as
Counsel for the Class and Subclass;
4. approving the proposed notice to the Class and Subclass;
and
5. directing the Class Notice be sent to all Class and
Subclass members as soon as practicable.
Venetian Casino owns and operates casinos to provide recreational
services.
A copy of the Plaintiff's motion to certify class dated Sept. 30,
2022 is available from PacerMonitor.com at https://bit.ly/3ysaq2r
at no extra charge.[CC]
The Plaintiffs are represented by:
Mark R. Thierman, Esq.
Joshua D. Buck, Esq.
Leah L. Jones, Esq.
Joshua R. Hendrickson, Esq.
THIERMAN BUCK LLP
7287 Lakeside Drive
Reno, NE 89511
Telephone: (775) 284-1500
Facsimile: (775) 703-5027
E-mail: mark@thiermanbuck.com
josh@thiermanbuck.com
leah@thiermanbuck.com
joshh@thiermanbuck.com
WALGREEN CO: CMP & Scheduling Order Entered in Stevens Suit
-----------------------------------------------------------
In the class action lawsuit captioned as Delenator Stevens v.
Walgreen, Co., Case No. 1:21-cv-10603-JPO (S.D.N.Y.), the Hon.
Judge Paul Oetken entered a civil case management plan and
scheduling order as follows:
-- All fact discovery shall be May 24, 2023
completed no later than:
-- Initial requests for production Oct. 14, 2022
of documents shall be served by:
-- All expert discovery, including Sept. 29, 2023
expert depositions, shall be
completed no later:
A copy of the Court's order dated Oct. 3, 2022 is available from
PacerMonitor.com at https://bit.ly/3MgIN2b at no extra charge.[CC]
WALMART INC: Merck Loses Bid to Seal Settlement Deal Docs
---------------------------------------------------------
In the class action lawsuit captioned as Merck v. Walmart Inc.,
Case No. 2:20-cv-02908-SDM-EPD (S.D. Ohio), the Hon. Judge
Elizabeth A. Preston Deavers entered an order denying Walmart's
motion to seal.
However, given the alleged nature of certain information, this
denial is without prejudice to Walmart's ability to re-file a
properly supported motion, the Court says.
The Court further entered an order that:
-- The Plaintiff's motion to seal is granted, in part. The
Plaintiff's motion as it relates to references and
quotations in the briefing that are the subject of
Walmart's motion to seal is denied, in part, without
prejudice to refiling.
-- Plaintiff's motion to seal as it relates to the Settlement
Agreement is denied.
-- Walmart's motion to seal is denied without prejudice. Any
renewed motions to seal should be filed within 14 days of
the date of this Order. If renewed motions to seal are not
filed, on the 15th day unredacted versions of the
documents currently remaining at issue shall be filed on
the public docket.
A copy of the Court's order dated Oct. 3, 2022 is available from
PacerMonitor.com at https://bit.ly/3efRn4y at no extra charge.[CC]
WELLS FARGO: Handelsbanken, et al., Seek to Certify Class Action
----------------------------------------------------------------
In the class action lawsuit captioned as IN RE WELLS FARGO &
COMPANY SECURITIES LITIGATION, Case No. 1:20-cv-04494-GHW
(S.D.N.Y.), the Lead Plaintiffs Handelsbanken Fonder AB, the Public
Employees' Retirement System of Mississippi, State of Rhode Island,
Office of the General Treasurer, on behalf of the Employees'
Retirement System of Rhode Island, and the Louisiana Sheriffs'
Pension & Relief Fund move the Court for an Order:
1. certifying case as a class action pursuant to Rule 23(a)
and (b)(3) of the Federal Rules of Civil Procedure;
2. certifying them as Class Representatives; and
3. appointing Cohen Milstein Sellers & Toll PLLC and
Bernstein Litowitz Berger & Grossmann LLP as Class
Counsel.
Wells Fargo is an American multinational financial services company
with corporate headquarters in San Francisco, California;
operational headquarters in Manhattan; and managerial offices
throughout the United States and internationally.
Handelsbanken is a mutual fund management company that manages
approximately 100 funds.
A copy of the Lead Plaintiff's motion dated Oct. 3, 2022 is
available from PacerMonitor.com at https://bit.ly/3EKt61B at no
extra charge.[CC]
The Counsel for Lead Plaintiffs Public Employees;' Retirement
System of Mississippi, State of Rhode Island, Office of the General
Treasurer, on behalf of the Employees' Retirement System
of Rhode Island, and Lead Counsel for the Class, are:
Steven J. Toll, Esq.
S. Douglas Bunch, Esq.
Molly J. Bowen, Esq.
COHEN MILSTEIN SELLERS & TOLL PLLC
1100 New York Avenue, N.W., Suite 500
Washington, DC 20005
Telephone: (202) 408-4600
Facsimile: (202) 408-4699
E-mail: stoll@cohenmilstein.com
dbunch@cohenmilstein.com
mbowen@cohenmilstein.com
- and -
Laura H. Posner, Esq.
88 Pine Street, Fourteenth Floor
New York, NY 10005
Telephone: (212) 220-2925
Facsimile: (212) 838-7745
E-mail: lposner@cohenmilstein.com
The Counsel for Lead Plaintiffs Handelsbanken Fonder AB and
Louisiana Sheriffs’ Pension & Relief Fund, and Lead Counsel for
the Class, are:
John C. Browne, Esq.
Jeroen van Kwawegen, Esq.
Michael D. Blatchley, Esq.
Benjamin W. Horowitz, Esq.
BERNSTEIN LITOWITZ BERGER
& GROSSMANN LLP
1251 Avenue of the Americas
New York, NY 10020
Telephone: (212) 554-1400
Facsimile: (212) 554-1444
E-mail: johnb@blbglaw.com
jeroen@blbglaw.com
michaelb@blbglaw.com
will.horowitz@blbglaw.com
- and -
Jonathan D. Uslaner, Esq.
Lauren M. Cruz, Esq.
2121 Avenue of the Stars
Los Angeles, CA 90067
Telephone: (310) 819-3470
E-mail: jonathanu@blbglaw.com
lauren.cruz@blbglaw.com
The Additional Counsel for Louisiana Sheriffs' Pension & Relief
Fund, are:
Robert D. Klausner, Esq.
KLAUSNER, KAUFMAN, JENSEN &
LEVINSON
7080 NW 4th Street
Plantation, FL 33317
Telephone: (954) 916-1202
Facsimile: (954) 916-1232
E-mail: bob@robertdklausner.com
WILLIAMS-SONOMA INC: Rushing Suit Seeks Class Certification
-----------------------------------------------------------
In the class action lawsuit captioned as WILLIAM RUSHING and
ELIZABETH PERLIN, individually and on behalf of all others
similarly situated, v. WILLIAMS-SONOMA, INC., et al., Case No.
3:16-cv-01421-WHO (N.D. Cal.), the Plaintiff asks the Court to
enter an order:
1. certifying a nationwide injunctive relief Class under Rule
23(b)(2) for all causes of action seeking injunctive
relief in Plaintiff's Eighth Amended Complaint defined as:
"All persons 1 in the United States who from January 19,
2007, to the present who purchased 2 bedding, including
sheets, sheet sets, pillowcases, duvet covers, and/or
shams, directly from Williams-Sonoma, Inc. 3 from any of
the following seven lines of bedding:
1) Williams-Sonoma Home Signature 600-Thread-Count Sateen
Bedding (n/k/a Chambers 600TC Sateen Bedding)
2) Williams-Sonoma Home Greek Key Jacquard 600-Thread-
Count Bedding
3) Williams-Sonoma Home Suzani Jacquard Bedding (500 TC)
4) Pottery Barn Foundations Hotel Sateen Bedding (600 TC)
5) Pottery Barn Morgan 400-Thread-Count Bedding
6) Pottery Barn PB Organic 400-Thread-Count Bedding
7) Pottery Barn PB Classic 400-Thread-Count Bedding; and
2. certifying a California Subclass under Rule 23(b)(3) for
all causes of action in the Complaint seeking monetary
relief defined as:
"All persons in California who from January 19, 2007, to
the present who purchased bedding, including sheets, sheet
sets, pillowcases, duvet covers, and/or shams, directly
from Williams-Sonoma, Inc. from any of the following seven
lines of bedding:
. 1) Williams-Sonoma Home Signature 600-Thread-Count Sateen
Bedding (n/k/a Chambers 600TC Sateen Bedding)
2) Williams-Sonoma Home Greek Key Jacquard 600-Thread-
Count Bedding
3) Williams-Sonoma Home Suzani Jacquard Bedding (500 TC)
4) Pottery Barn Foundations Hotel Sateen Bedding (600 TC)
5) Pottery Barn Morgan 400-Thread-Count Bedding
6) Pottery Barn PB Organic 400-Thread-Count Bedding
7) Pottery Barn PB Classic 400-Thread-Count Bedding
The Injunctive Relief Class seeks injunctive relief under the
Unfair Competition Law (UCL); False Advertising Law (FAL), Business
and Professions Code; and Consumer Legal Remedies Act (CLRA). The
California Subclass seeks monetary relief, and all other available
relief, under the UCL, FAL, CLRA, and common law unjust enrichment.
The Plaintiff further requests that the Court appoint:
(1) Plaintiff Perlin as class representative forall claims,
and
(2) Hagens Berman Sobol Shapiro LLP and Haeggquist & Eck, LLP
as class counsel.
A copy of the Plaintiff's motion to certify class dated Sept. 28,
2022 is available from PacerMonitor.com at https://bit.ly/3EiWMT6
at no extra charge.[CC]
The Plaintiffs are represented by:
Amber L. Eck, Esq.
HAEGGQUIST & ECK, LLP
225 Broadway, Suite 2050
San Diego, CA 92101
Telephone: (619) 342-8000
E-mail: ambere@haelaw.com
- and -
Robert B. Carey, Esq.
Leonard W. Aragon, Esq.
HAGENS BERMAN SOBOL SHAPIRO LLP
11 West Jefferson Street, Suite 1000
Phoenix, AZ 85003
Telephone: (602) 840-5900
E-mail: rob@hbsslaw.com
leonard@hbsslaw.com
WILLOWS INN: Agrees to Settle Wage Theft Class Suit for $1.37-M
---------------------------------------------------------------
Jackie Varriano at Seattle Times reports that The Willows Inn, a
nationally acclaimed restaurant on Lummi Island, has agreed to pay
more than $1.37 million to settle a class-action lawsuit over
accusations of wage theft involving 137 employees.
This settlement comes a year after the restaurant, owned by
two-time James Beard award-winning chef Blaine Wetzel and his
business partner Tim McEvoy, paid $600,000 to settle a similar wage
theft lawsuit, in which employees claimed they weren't provided
adequate rest breaks and were not paid for all hours worked.
Filed in Whatcom County Superior Court on March 10, the most recent
suit is considered an amendment to the earlier class-action
lawsuit, filed in July 2017.
The earlier suit was settled last year and encompassed
nonsupervisory employees who had worked at the restaurant from July
2014 to December 2017.
However, when checks began going out to the claimants, the attorney
for the plaintiffs, Greg Wolk, said he started hearing from
multiple employees who had worked at the Willows Inn from June 2018
to February 2022 and who alleged that they, too, had not been paid
for all hours worked, had not been granted adequate meal and rest
breaks and were not paid automatic service charges that were due to
them.
Wetzel and his attorney did not respond to repeated requests for
comment.
The Willows Inn is the latest in a string of Washington or
Seattle-area restaurants that have settled significant wage theft
cases since Seattle made it illegal in 2011. The list includes Tom
Douglas Restaurants, the Queen Anne location of the national chain
Melting Pot, Pagliacci Pizza and Lowell's in Pike Place Market.
Wage theft has long been a problem in the restaurant industry - in
2018, the U.S. Department of Labor found that 84% of more than
9,000 restaurants investigated had violated wage laws.
In an interview, Julia Olmos, a cook at Willows Inn from June 2018
to December 2019, said she was often expected to work outside of
paid hours. She said she was frequently asked to run errands for
the restaurant before her shift and was not paid for the time it
took to complete those tasks, nor reimbursed for the money she
spent to purchase the items she was asked to obtain.
Olmos, who now works in the food industry in New York City, says
that since she left The Willows Inn she has never again been asked
to work off the clock. At the time however, it didn't feel wrong to
forage or grab ingredients from the grocery store before clocking
in. Instead, that was the accepted culture of the restaurant where
the kitchen staff "went into it being like, 'foraging is a part of
our job,' " she said.
But in hindsight, "It definitely was not cool for being out for 18
hours to forage ingredients for the restaurant that they could've
paid foragers to get for them," Olmos said.
The Willows Inn has come under fire for a number of issues in
recent years, and has been accused of wage theft in several
instances.
The posh 30-seat restaurant and adjoining hotel has cultivated a
strong reputation under Wetzel and the restaurant has been highly
regarded internationally for its unique menu that, Wetzel has
claimed, relied exclusively on ingredients found or grown on the
island.
However, in April 2021, The New York Times reported that many of
the ingredients that the Willows Inn had advertised as locally
sourced often came from global distributors and grocery store
chains. The story also accused Wetzel and his management staff of
an array of toxic workplace behaviors, including racism and sexual
harassment. (According to The New York Times, Wetzel denied most of
the allegations, though he admitted to sourcing some ingredients
off-island.)
In 2017, the U.S. Department of Labor fined The Willows Inn
$149,624 for illegally requiring some entry-level kitchen staffers
to work a one-month trial period for free, and then afterward, for
wages as low as $50 per day. The Willows Inn said at the time that
they had operated a staging/internship program - in which
entry-level kitchen workers work for free in hope of a resume boost
- but that once the Justice Department informed them that the
practice was illegal, they ended the program.
The wage theft lawsuit filed by Wolk that resulted in the $600,000
settlement in 2021 included several employees who were affected by
the Department of Labor case. Under that settlement, 99
nonsupervisory employees recovered about 75% of unpaid wage
claims.
Wetzel denied those allegations in a phone interview with The
Seattle Times in March 2021, saying his attorneys advised him to
settle or risk a long, expensive court battle.
Wolk said he determined the class date range in that initial
lawsuit after The Willows Inn's attorneys told him that the
restaurant had ended its controversial stage program and was making
sure employees were clocking in and out for all work. But more
employees who'd worked at The Willows Inn after the December 2017
end date started coming to him to say they, too, had not been
adequately paid for labor.
The Willows Inn also currently faces three civil cases in state and
federal courts. All three were brought against the restaurant by
former employees.
This $1,375,000 settlement was finalized on July 8. According to
Wolk, The Willows Inn chose not to appeal the settlement and checks
were distributed to the 137 members of the claimant class in
September. Under the settlement, the class will recover about 75%
of unpaid wage claims.
"[The Willows Inn] has the capacity to do great things, the food is
fantastic. If they would just treat their employees fairly, none of
this would be happening," Wolk said.[GN]
[*] 1st Annual Complex Litigation Ethics Conference This Saturday
-----------------------------------------------------------------
The Center For Litigation and Courts, UC Hastings Law, and
Huntington National Bank invite you to the first annual Complex
Litigation Ethics Conference. This program will bring together
luminaries in the field -- judges, scholars, lawyers, and others --
to discuss a cutting-edge topic that is of critical importance to
our justice system.
The event will be held on campus and virtually on Saturday, October
22, 2022, from 8:45 a.m. to 4:45 p.m. Pacific Time at UC Hastings
College of the Law in San Francisco. 7.0 Ethics CLE Credits are
available.
Expert panelists will discuss important industry topics including:
* Adapting Ethics to Complex Litigation
* Ethics in Funding Complex Litigation
* Diversity, Equity, and Inclusivity in Complex Litigation
* Communications with Absent Class Members
The program will also include a special presentation of an
inaugural Annual Award for Excellence in Ethics in Complex
Litigation. The honoree will be recognized for accomplishments in
promoting ethics in class actions, MDLs, or other complex
litigation.
Capacity is limited, so please register today at
https://bit.ly/3rpycs7
View the agenda at https://bit.ly/3Cv2tMv
[*] Housing Rights Initiative Generates Three Fraud Class Suits
---------------------------------------------------------------
Isabel Song Beer at amny.com reports that following an
investigation by national housing watchdog group the Housing Rights
Initiative (HRI), three class action lawsuits have been filed
against New York City real estate companies for allegedly
defrauding tenants by abusing the 412-a tax incentive program.
The 421-a program is a partial tax exemption that lowers property
taxes and is granted to property developers who construct units
that include affordable housing.
Atlas Capital Group, Heatherwood and Artimus Construction - the
real estate companies being sued - were apparently receiving tens
of millions of dollars worth of 421-a benefits for developing their
buildings. Conditionally under 421-a, 100% of the units developed
were required to be rent stabilized.
However, the landlords allegedly cheated NYC rent stabilization
laws by maximizing rent increases as well as falsely registering
rental rates of apartments at inflated and illegal prices.
"The 421-a program costs taxpayers $1.7 billion a year, which is
larger than the entire budget of the City of Denver," said Aaron
Carr, founder and executive director of Housing Rights Initiative
in a statement on Oct. 12. "The fact that the New York State
government continues to defer its tax enforcement obligations to an
organization that has a fraction of a fraction of a fraction of
their budget is not just an unmitigated tragedy, it is a full blown
scandal."
According to HRI, thousands of current and former tenants at 54
Noll Street, Brooklyn, NY, 27-03 42nd Road Long Island City, NY,
and 260 West 26th Street New York, NY - the buildings affected by
the lawsuits - may be entitled to tens of millions of dollars in
damages. Legally, tenants being overcharged on rent are entitled to
properly stabilized leases, rent refunds and rent reduction. [GN]
[*] N.D. Illinois Enters $228M Judgment in BIPA Class Action
------------------------------------------------------------
buckleyfirm.com reports that on October 12, the U.S. District Court
for the Northern District of Illinois entered a judgment for $228
million after a jury found that a defendant railway company
committed 45,600 reckless or intentional violations of the Illinois
Biometric Information Privacy Act (BIPA). The jury's judgment,
which does not include pre-judgment interest, was entered against
the defendant in the amount of $228 million (BIPA provides for
statutory damages of $5,000 for every willful or reckless violation
and $1,000 for every negligent violation). Class members consisting
of more than 44,000 truck drivers alleged in their second amended
complaint that the defendant violated BIPA when it collected,
captured, and stored their biometric identifiers and biometric
information without obtaining their informed written consent or
providing written disclosures explaining the purpose and duration
of such use. The defendant countered that it should not be held
liable for biometric data collection conducted on its behalf by a
third-party contractor because BIPA does not impose liability for
the acts of a third party. The court disagreed, ruling, among other
things, that BIPA's language "makes clear that [the defendant] need
not have 'collected' the data itself to be liable," and that there
is evidence that the defendant "ultimately called the shots on
whether and how biometric information is collected."[GN]
[*] New Wiretapping Class Actions Target U.S. Technology Companies
------------------------------------------------------------------
Duane Morris disclosed that a new wave of class action lawsuits
filed in California, Pennsylvania and Florida target companies that
use technologies to track user activity on their websites, alleging
such practices, when done without obtaining a user's consent,
violate electronic interception provisions of various state laws.
The two technologies at issue are: 1) session replay software and
2) coding tools embedded in chat features. Session replay software
tracks a user's interactions with the website -- their clicking,
scrolling, swiping, hovering and typing -- and creates a stylized
recording of those interactions and inputs. Coding tools create and
store transcripts of the conversations users have in a website's
chat feature. The plaintiffs in this new string of class actions
allege that recording their interactions with a website and sending
that recording to a third party for analysis without their consent
is an illegal invasion of their privacy.
State Wiretapping Statutes
Plaintiffs ground their claims in the electronic interception
provisions of state laws—for example, the California Invasion of
Privacy Act, the Pennsylvania Wiretapping and Electronic
Surveillance Act and the Florida Security of Communications Act.
Generally, these wiretap statutes prohibit the unauthorized
interception or disclosure of communications transmitted
electronically. At least 15 states require mutual consent to any
recording, meaning the interception is "unauthorized" if the
intercepting party has not obtained the consent of all parties to
the communication.[1] It is in these two-party consent states that
the plaintiffs behind this new litigation trend allege that a
company's recording or storing their interactions with a website
(e.g., their clicks, scrolls and chat inputs) and sending those
recordings to a third party for analysis without their prior
consent is illegal.
Recent Decisions from the Ninth and Third Circuits
Recent decisions from the Ninth and Third Circuits are fueling the
swell of lawsuits alleging violations of state wiretap statutes. In
May, the Ninth Circuit held in Javier v. Assurance IQ, LLC that the
California Invasion of Privacy Act requires prior consent, and
explicitly rejected the argument that this wiretap statute allows a
business to obtain consent to the use of session replay software
after the recording has already begun. However, the Ninth Circuit
did not comment on what would amount to effective consent to the
websites' use of session reply software under the wiretap statute.
A few months later, the Third Circuit in Popa v. Harriet Carter
Gifts ruled that an electronic interception violating the
Pennsylvania Wiretapping and Electronic Surveillance Act occurred
when the plaintiff visited a website to purchase a pet product and
her interactions on that site were recorded and transmitted to a
third-party marketing firm. The Third Circuit further concluded
that the location of the interception was the plaintiff's browser,
rejecting the defendants' argument that the wiretap statute did not
apply because the third-party marketing firm's servers -- where the
information was sent -- were located in Virginia. Thus, if other
circuits follow the Third Circuit's approach, companies could be
subject to liability under a state wiretap statute each time a user
accesses their website from that state.
The Risks Posed by the Lawsuits
This new wave of suits alleging wiretap violations threatens to
subject businesses to a substantial amount in penalties. Fines
range from $1,000 to $50,000 per violation, depending on the state.
Since a violation arguably occurs every time a user accesses a
website in one of these states, the amount of penalties to which a
company may be subject can balloon quickly. For example, in each of
the three lawsuits brought thus far in Pennsylvania, the class
consisted of allegedly more than 5,000 plaintiffs.
What Safeguards Businesses Can Employ
Companies can employ several proactive measures to protect them
from exposure to a class action lawsuit or potentially incurring
fines under state wiretap statutes.
-- First, because user consent is a defense under state wiretap
statutes, companies should review their websites' terms of use and
privacy policies and consider whether they provide substantive
disclosures of how a user's interactions with the website is
recorded and shared with service providers.
-- Companies should ensure that the disclosure of those terms is
conspicuous enough to make users' consent to them enforceable.
Given that there is not yet a clear standard as to what constitutes
enforceable consent to the use of these technologies, obtaining
affirmative consent from website users before starting any
recordings or chat transcriptions may be the strongest safeguard
against lawsuits alleging violations of state wiretap statutes.
-- Additionally, companies can negotiate for indemnification
rights when selecting a provider of the software that tracks users'
website interactions.
Second, companies should seek counsel to consider what defenses
exist under the relevant statutes. The case law in this area is
still developing, and each state wiretapping statute provides a set
of defenses, from showing that a user expressly or impliedly
consented to the use of the technology, to establishing that the
party accused of intercepting or disclosing an electronic
communication was a direct party to the communication.
About Duane Morris
Duane Morris attorneys assist clients both in implementing
safeguards that will prevent them from facing a lawsuit alleging a
wiretapping violation and in defending any wiretapping lawsuit
brought against them. [GN]
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S U B S C R I P T I O N I N F O R M A T I O N
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