/raid1/www/Hosts/bankrupt/CAR_Public/221027.mbx
C L A S S A C T I O N R E P O R T E R
Thursday, October 27, 2022, Vol. 24, No. 209
Headlines
A. OCHOA CONCRETE: Cuchimaque Sues Over Laborers' Unpaid Wages
AMERICAN HONDA: Loses Bid to Toss Browning's 3rd Amended Complaint
AMERICARE CERTIFIED: Melamed Wins Bid for HHAs Class Certification
APPLE COMMUTER: Abuladze FLSA Suit Removed to S.D.N.Y.
BIG LOTS: N.Y. Court Dismisses Devey Suit Over Deceptive Marketing
BLINKS DELI: Faces Catalan Suit Over Failure to Pay Proper Wages
BP EXPLORATION: Court Grants Summary Judgment Bid in Wilson Suit
CACIQUE LLC: Faces Rodriguez Suit Over Unlawful Labor Practices
CIGNA HEALTHCARE: California Court Dismisses Saloojas Class Suit
CINCINNATI INSURANCE: Hirschfield-Louik Suit Dismissed W/ Prejudice
CONCHO RESOURCES: Corral May File Surreply to RUSCO's Reply
EMPRESS AMBULANCE: Fails to Protect Customers' Info, Castaldo Says
EPIC AIRCRAFT: Hanney's Bid to Strike Affirmative Defenses Granted
FENNEC PHARMACEUTICALS: Court Dismisses Fisher Securities Suit
FIVE BELOW: Magistrate Judge Recommends Dismissal of Gastelum Suit
GOFUND ADVANCE: Bid to Strike Class Claims in Haymout Suit Denied
ILLINOIS: District Court Grants Bids to Dismiss Simmons v. Prizker
IMPERIAL PACIFIC: Genc Allowed to File 2nd Amended Labor Complaint
IPPT CAREER: Lawson Suit Removed to S.D. Fla.
LA PETITE ACADEMY: Bid to Move Thompson Suit to State Court Denied
MDL 2873: Faces Stone Personal Injury Suit Over PFAS Exposure
MDL 2873: PFAS Exposure Caused Cancer, Brown Suit Says
MDL 2913: CHAMPS Charter High School Sues Over E-Cigarette Crisis
MDL 2913: Detroit Enterprise Sues Over E-Cigarette Crisis
MDL 2913: Escondido Union Says E-Cigarette Ads Target Youth Market
MDL 2913: Hinsdale Central Balks at Vaping Ads Targeting Youth
MDL 2969: Four Claims Tossed From Covid-19 Business Insurance Suit
MDL 3014: Van Ginkel Suit Transferred to W.D. Pa.
MILOS HY: N.Y. Court Grants in Part Bid to Dismiss Mera Labor Suit
NATIONAL CREDIT: Distribution of $48.7K in Unclaimed Funds OK'd
NATROL LLC: Eighth Cir. Affirms Summary Judgment in Vitello Suit
NELNET INC: Court Grants Bid to Strike Johansson's Class Claims
NIBCO INC: Final Approval of Matson's Class Settlement Affirmed
OREGON: Dismissal of Mendoza v. DOT Over License Suspension Upheld
PERSONAL CAPITAL: Greenberg Sues Over Unsolicited Telemarketing
RANCHO MURIETA: Segismundo Suit Remanded to Sacramento Super. Court
ROCKHILL INSURANCE: Partly Wins Summary Judgment Bid in Savers Suit
SERVICE KING: Hassanpoor's FLSA Collective OT Wage Claim Dismissed
ST. LOUIS, MO: District Court Denies Bid to Stay Williams Suit
TARGET CORP: Bid to Remand Dedloff Suit to Circuit Court Denied
UNITED STATES: Healthcare Providers Class Certified in Neese Suit
UNITED STATES: Short v. Defense Sec. Berger Dismissed W/o Prejudice
UNIVERSAL SERVICES: Small Sues for Breach of Fiduciary Duties
W.S. BADCOCK: Loses Bid to Dismiss Miernik's 1st Amended Class Suit
WALMART INC: Court Allows Deposition of 7 Declarants in Haro Suit
WAYNE COUNTY, MI: Sabree Files 6th Cir. Appeal in Bowles Class Suit
WELLS FARGO: Approval of Class Settlement in Kang Suit Affirmed
WORLEY & OBETZ: Loses Bid for Summary Judgment in Daveler Suit
*********
A. OCHOA CONCRETE: Cuchimaque Sues Over Laborers' Unpaid Wages
--------------------------------------------------------------
Wilman Cuchimaque, on behalf of himself and others similarly
situated in this proposed collective action, Plaintiff v. A. Ochoa
Concrete Corp., and Alcides Ochoa, Defendants, Case No.
1:22-cv-06136 (E.D.N.Y., Oct. 12, 2022) arises from the Defendants'
alleged violations of the Fair Labor Standards Act, the New York
State Labor Law, and their supporting New York State Department of
Labor regulations, seeking injunctive and declaratory relief and to
recover unpaid overtime wages, untimely paid wages, liquidated and
statutory damages, pre- and post-judgment interest, and attorneys'
fees and costs.
The Plaintiff was employed by the Defendants as a manual laborer
from approximately May 2022 until July 2022.
Ochoa Concrete Corp. is a construction company based in Bay Shore,
New York.[BN]
The Plaintiff is represented by:
Joshua Levin-Epstein, Esq.
Jason Mizrahi, Esq.
LEVIN-EPSTEIN & ASSOCIATES, P.C.
60 East 42nd Street, Suite 4700
New York, NY 10165
Telephone: (212) 792-0048
E-mail: Jason@levinepstein.com
AMERICAN HONDA: Loses Bid to Toss Browning's 3rd Amended Complaint
------------------------------------------------------------------
Judge Beth Labson Freeman of the U.S. District Court for the
Northern District of California, San Jose Division, denies American
Honda's partial motion to dismiss the third amended complaint in
the lawsuit captioned RONDA ANN BROWNING, et al., Plaintiffs v.
AMERICAN HONDA MOTOR CO., INC., et al., Defendants, Case No.
20-cv-05417-BLF (N.D. Cal.).
In this putative class action, the Plaintiffs allege a defect in
their 2018-2019 Honda Odyssey vehicles, which are equipped with the
ZF 9HP Automatic Transmission. They allege the Transmission has two
software modules that fail to communicate properly. Four named
Plaintiffs seek to represent a nationwide class and five
subclasses, which assert various implied warranty, express
warranty, and state consumer protection claims.
As alleged in the Third Amended Complaint ("TAC"), Honda designs,
manufactures, markets, distributes, sells, and services the Honda
Odyssey vehicle. The Plaintiffs allege that in 2014, Honda began
equipping certain of its vehicles with a 9-speed automatic
transmission called the ZF 9HP Automatic Transmission. They allege
that the Transmission suffers from a design and/or workmanship
defect: there is improper design and/or calibration of the software
in control of the Transmission, including the Transmission Control
Module and the Powertrain Control Module in the Odyssey vehicles.
The Transmission Control Module and the Powertrain Control Module
control the function of the transmission and its interaction with
the engine. While the Transmission may be delivered by a component
manufacturer with software already programmed, Honda must ensure
that the software is properly calibrated to function in its own
vehicles. The Plaintiffs allege that Honda has failed to do this
properly, resulting in mistimed gear shifting. This causes
illumination of the Malfunction Indicator Light; a rough, delayed,
or sudden failure to shift; grinding or other loud noises during
shifting; harsh engagement of gears; sudden or harsh accelerations
or decelerations; and sudden loss of power.
Plaintiffs Ronda Ann Browning, Tony Boatwright, Chuen Yong, and
Daniel Pina each purchased a Honda Odyssey vehicle in the model
years 2018 or 2019. They have filed suit against Honda asserting
claims for breach of implied warranty (South Carolina, California),
breach of express warranty (Texas, California), and violation of
state consumer protection statutes (Florida, Texas, California).
Each claim is brought by the Plaintiff or Plaintiffs in that
respective state.
The Plaintiffs further seek to represent a nationwide class of
individuals, who purchased 2018-2019 Honda Odyssey vehicles
equipped with the Transmission. Each Plaintiff seeks to represent a
subclass in their individual state, with Pina seeking to represent
both a California subclass and a Consumer Legal Remedies Act
("CLRA") subclass.
The Plaintiffs assert three claims under the consumer protection
statutes in Florida, Texas, and California. In its motion, Honda
seeks to dismiss these claims on the basis that it did not have a
duty to disclose the defect.
In its order dismissing the Second Amended Complaint, the Court
held that the Plaintiffs had not adequately pled Honda's pre-sale
knowledge of the defects. Honda argues that the Plaintiffs still
have not pled facts to support a finding that it had exclusive
knowledge of the alleged defect. The Plaintiffs assert they have
amended their complaint to address the deficiencies the Court
identified in its order dismissing the Second Amended Complaint.
The Plaintiffs allege five sources of Honda's exclusive knowledge
of the defects: pre-sale testing of predecessor vehicles and
pre-release Class Vehicles; consumer complaints made to Honda and
posted online; complaints filed with the NHTSA; technical services
bulletins ("TSBs"); and dealership repair orders.
The Plaintiffs point to nine TSBs that they allege stem from the
Transmission Programming Defect. The Court previously directed the
Plaintiffs to connect the issues described in the TSBs--i.e.,
incorrect battery current, malfunctioning indicator lights,
independent shifting, or 'loss-of-communication' issues--to Honda's
failure to properly calibrate the control modules interacting with
the Transmission during manufacturing. Honda asserts that the
Plaintiffs still have not adequately connected the TSBs to the
Transmission Programming Defect.
But the Court finds that the Plaintiffs have adequately done so at
the pleading stage, as they have further elaborated on the
definition of the Defect, and they have connected each TSB to the
Defect.
Honda also asserts that the Court should not rely on the TSBs
because (1) eight of the nine TSBs concern non-class vehicles for
which Plaintiffs did not assert the same manufacturing process with
respect to software calibration, and (2) the one TSB that involves
class vehicles was issued on Dec. 23, 2019, following the sales to
the Plaintiffs.
With regard to the first argument, Judge Freeman notes that TSBs
issued for other vehicles can support a plausible inference of
knowledge when the other vehicles had the same defective component
as the vehicle at issue. The Plaintiffs allege that the vehicle
models in the TSBs have the same Transmission and Transmission
Programming Defect as the class vehicles. Further, they connect the
remedies in the TSBs for the non-class vehicles to the Transmission
Programming Defect. Therefore, the TSBs for non-class vehicles
permit a plausible inference of knowledge.
As to Honda's second argument, Judge Freeman explains that courts
have held that even when TSBs post-date a purchase, it is
reasonable to infer that the TSBs were proceeded by an accretion of
knowledge by the manufacturer, citing Philips v. Ford Motor Co.,
No. 14-CV-02989-LHK, 2015 WL 4111448, at *9 (N.D. Cal. July 7,
2015). Here, the Plaintiffs purchased their vehicles in July,
September, and October 2018 and January 2019, and the TSB involving
class vehicles was issued on Dec. 23, 2019.
Judge Freeman holds that the December 2019 TSB supports a plausible
allegation that Honda knew of the Transmission Programming Defect
in 2018.
The Court also looks to the Plaintiffs' allegations regarding
pre-sale testing. Honda asserts that these allegations are
insufficient because the Plaintiffs assert that manufacturers often
identify calibration problems at the testing stage, not that Honda
actually identified the defect here through pre-sale testing.
At this stage, Judge Freeman opines the allegations permit a
reasonable inference that Honda knew of the Transmission
Programming Defect at the time the Plaintiffs purchased their
vehicles.
A full-text copy of the Court's Order dated Oct. 6, 2022, is
available at https://tinyurl.com/2p95hmtp from Leagle.com.
AMERICARE CERTIFIED: Melamed Wins Bid for HHAs Class Certification
------------------------------------------------------------------
Judge Ingrid Joseph of the New York Supreme Court, Kings County,
grants the Plaintiffs' motion for class certification in the
lawsuit styled RAISA MELAMED, GALYNA MALYARUK, TAMARA BADZIO and
LARYSA SALO, individually and on behalf of all others similarly
situated, Plaintiffs v. AMERICARE CERTIFIED SPECIAL SERVICES, INC.,
and AMERICARE, INC., Defendants, Index No. 506155/2016 (N.Y.
Sup.).
In this matter, Plaintiffs Raisa Melamed, Galyna Malyaruk, Tamara
Badzio and Larysa Salo, individually and op behalf of members of
the proposed class, move by Notice of Motion (Motion Sequence 11),
for Class Certification pursuant to New York Civil Practice Law and
Rules ("CPLR") Sections 901 and 902 for all Home Health Aides
("HHAs") who worked 24-hour shifts from Sept. 27, 2005, to
present.
The Plaintiffs, and the putative class members, who were employed
as home health aides, for Defendants AMERICARE CERTIFIED SPECIAL
SERVICES, INC. and AMERICARE, INC., seek to recover damages for
underpayment of minimum, overtime, and spread-of-hours wages
pursuant to the New York Labor Law and New York Department of Labor
wage orders and regulations for work performed during 24-hour
shifts.
The Court, by order dated Dec. 5, 2019, consolidated the instant
matter, initially captioned Tamara Badzio, et al. v. Americare
Certified Special Services, Inc., et al., with a previously filed
action, Melamed, et al. v. Americare, et al. (Index No.
503171/2012).
Prior consolidation, the Defendants in the Melamed matter moved to
dismiss the Plaintiffs' amended complaint, and the Plaintiffs cross
moved for an order granting class certification. The Court
(Schmidt, J.) by order dated Dec. 11, 2014 ("2014 decision") denied
the Defendants' motion in its entirety and denied the Plaintiffs'
cross motion as premature with leave to renew upon further
discovery.
Also pre-consolidation, the Defendants in this matter moved to
dismiss Plaintiffs Tamara Badzio and Larysa Salo's causes of
action, as time-barred by the six-year statute of limitations under
Section 198(3) of the Labor Law. A predecessor justice rendered a
decision and order denying the Defendants' motion (Solomon, J.,
June 15, 2017).
On appeal, the Appellate Division, Second Department affirmed the
Supreme Court's June 15, 2017 decision and order, holding that
Plaintiffs Badzio and Salo's claims prior to April 18, 2010, and
Jan. 30, 2011, respectively, were, tolled in accordance with a
culmination of tolling rules set forth in Americare Pipe & Constr.
v. Utah, 414 U.S. 538 [1974], Crown Cork & Seal Co. v. Parker, 462
U.S. 345, 350 [1983], and China Agritech, Inc. v. Resh, 138 S.Ct.
1800 [2018].
The parties requested varied relief thereafter, including the
Defendants' request for an order temporarily staying the instant
action, or alternatively a protective order, pending the outcome of
other, unrelated class action lawsuits that were appealed and
awaiting determinations from the Appellate Division, Second
Department. The Plaintiffs, in the interim, sought orders
compelling the Defendants to provide class-wide payroll data and
other discovery. These matters, among other issues, were addressed
in multiple orders that initially imposed temporary stays, then,
addressed outstanding discovery-related matters.
On Nov. 20, 2020, the presiding justice in the centralized
Compliance Part (Knipel, J.) issued an order addressing the
Plaintiffs' motion to compel and for the imposition of sanctions as
follows: The Defendant will provide the payroll records sought,
with personal identifying information (employees name, address and
social security numbers only) redacted. The Defendants' request for
representative sampling is denied. Said documents to be served by
Feb. 11, 2021, or the issue of class certification will be deemed
resolved in the Plaintiffs' favor, pursuant to 3126(1), without the
need for a further motion. This is a self-executing order.
In the instant motion, neither party discloses whether the
Defendants provided payroll records in accordance with the Nov. 20,
2020 order, and there is no evidence that the order has been
reversed, vacated or modified. Consequently, the issue of class
certification would already be resolved in the Plaintiffs' favor,
if the Defendants failed to comply with the self-executing, Nov.
2020 order, Judge Joseph opines.
If the issue of class certification is outstanding, Judge Joseph
holds that the decision and order on the Plaintiffs' motion is as
follows: It is the Plaintiffs' burden to establish that the
requirements of CPLR article 9 are satisfied. The five
prerequisites are numerosity, commonality, typicality, adequacy of
representation and superiority. Such requirements are to be
liberally construed in keeping with the goals of CPLR article 9.
In this matter, the criteria for class certification was previously
discussed in the 2014 decision, wherein it was determined that five
of the six statutory requirements set forth in CPLR Section 901
were satisfied, despite scant discovery and the limited information
that was available to the Plaintiffs' counsel at the time. The
predecessor justice found that adequacy of representation was the
only element lacking. While the 2014 decision is not binding to
this Court, after consideration of the documents submitted and the
arguments presented, Judge Joseph concurs with the predecessor
justice's reasoning.
Consistent with the findings in the 2014 decision and evidence
submitted in support of the instant Motion, this Court finds that
the number of home health aides, who performed 24-hour shifts
during the requisite period may exceed 2,000 members, well beyond
the numerosity threshold.
In the 2014 decision, it was also determined that the elements of
commonality and predominance were satisfied, notwithstanding the
Defendants' argument that the issues of liability and damages
varied too widely among class members. The Court rejects the same
argument as presented by the Defendants in opposition to the
instant Motion.
The Court finds that the representative parties claims arise, out
of the same course of conduct that is typical of the entire class.
That is, the Defendants allegedly engaged in a practice of paying
24-hour shift home health aides a flat rate, as opposed to paying
such workers in accordance with the pay provisions outlined under
New York law.
Superiority considerations also enure in favor of certifying the
class, Judge Joseph holds. The Court, having reviewed the
information provided by the Plaintiffs' counsel, is satisfied that
counsel is competent and has amassed significant experience
prosecuting wage and hour class action lawsuits. Additionally, the
Plaintiffs' counsel, who was retained on contingency, has incurred
costs, attended depositions, appeared in court engaged in
discovery, and extensive motion practice.
In the 2014 decision, the prior court denied the Plaintiffs'
previous motion for class certification for the stated reason that
they failed to proffer sufficient admissible evidence concerning
the class representatives. That is not the case here, Judge Joseph
holds. The 2014 decision has since been consolidated with the
instant case, which increased the number of proposed
representatives from two to four. The class representatives, Raisa
Melamed, Tamara Badzio, Larysa salo, and Gaylyna Malyaruk, have
since been deposed. They also submitted affidavits, wherein each
person demonstrated familiarity and awareness of the central issues
in this case.
Additionally, Judge Joseph says there is no showing of an existing,
or potential, conflict of interest among the proposed
representatives, or that any such representative is pursuing an
issue unique to herself but discordant with the dispute common to
all Class members. These factors weigh in favor of finding that the
proposed representatives will fairly and adequately represent the
interests of each member of the class.
Based upon the foregoing, Judge Joseph rules that the Plaintiffs'
motion for class certification is granted.
The class is certified to the extent that it includes Home Health
Aides, who worked 24-hour shifts for Defendants Americare Certified
Special Services, Inc., and Americare, Inc., between Sept. 27,
2005, and the date the Defendants ceased failing to pay those
individual the minimum, overtime, rand spread-of hour wages
required under the New York Labor Law and wage regulations.
The Plaintiffs are authorized to serve notice Of the instant action
to the individual class members by first class mail. The Plaintiffs
will serve a copy of this order upon the Defendants with Notice of
Entry within twenty (20) days of such entry.
A full-text copy of the Court's Order dated Oct. 6, 2022, is
available at https://tinyurl.com/485pk23f from Leagle.com.
APPLE COMMUTER: Abuladze FLSA Suit Removed to S.D.N.Y.
------------------------------------------------------
The case styled KAKHA ABULADZE, ERKEGUL ALSHIMBAY, TEMURBEK AMONOV,
ALBERT ARTABAEV, OLESYA BALAKIREVA, PARVIZ BASHIROV, EKATERINA
LEYBER CHABOT, KETEVAN CHACHUA, TATIANA DAVID, SAYANA DOMSHOEVA,
NATIA DUDUCHAVA, GIORGI GABISONIA, LOBSANG GYAMTSO, ALISHER
JABBAROV, ILYA KALPAKBAYEVA, REINA KAZAKBAEVA, NADEZHDA KHALTANOVA,
BEKA KHIPASHVILI, ILIA KHUBASHVILI, NATALIA LAPINA, ANUKI LOMIDZE,
GVANTSA MIERZEJEWSKI A/K/A CHRISTINA MARGALITASHVILI, CHINGIZ
MIRZAMSEITOV, IRINA MITROKHINA, ASSEL NORBOEVA, AIDAR ORYNBEKOV,
LUMINITA PERDE, VALENTINA POKROVSKAIA, NASAR SALDZHUKI, SHEIKH
SOBUR, ANA STATI, NURSULU TAUKEBAYEVA, DZERASSA TEMIRAEVA,
AKZHARKYN YEDRISSOVA, TAMAR ZABAKHIDZE, SVETLANA ZEMTSOVA, SAYANA
ERDYNIEVA, AYNUR CARLSON, KSENIA BEREZOVSKAIA, ANNA TCEBEKOVA,
ALMAGUL ZHUMANTAYEVA, individually and on behalf of all Others
similarly situated, Plaintiffs v. APPLE COMMUTER INC., BIREN J.
SHAH, EDISON MANAGEMENT CO. LLC A/K/A EDISON HOTEL, 237 WEST 54
OWNER LLC A/K/A HILTON GARDEN INN (54), HHLP 52 LESSEE LLC A/K/A
HILTON GARDEN INN (52), PNY III LLC A/K/A HILTON
MANHATTAN/WESTGATE, CDL HOTELS USA INC. A/K/A MILLENNIUM HILTON,
HHLP DUO THREE LESSEE LLC A/K/A HOLIDAY INN EXPRESS, BRISAM
MANAGEMENT DE LLC A/K/A HOLIDAY INN CHELSEA, PATEL
KHANBUDHAI/COMFORT INN A/K/A COMFORT INN CHELSEA/HERITAGE HOTEL,
COMFORT INN A/K/A COMFORT INN TIMES SQUARE, NEW GENERATION
MANAGEMENT CORP. A/K/A LA QUINTA/HOTEL @ 5TH AVENUE, IMPERIAL HOTEL
LLC A/K/A IMPERIAL COURT HOTEL, WOLCOTT HOTEL CO. A/K/A WOLCOTT
HOTEL, S&G HOTEL CORP. A/K/A ST. JAMES HOTEL, EROS MANAGEMENT &
REALTY LLC A/K/A TRYP BY WYNDHAM, THE SHOREHAM LLC A/K/A SHOREHAM
HOTEL, ALPHONSE HOTEL CORP. A/K/A HOTEL CARTER, RPH HOTELS 51
STREET OWNER LLC A/K/A HAMPTON INN TIMES SQ NORTH, HAMPTON INN
A/K/A HAMPTON INN TIMES SQ SOUTH, NEW YORK MARKETING INC A/K/A
NYMA, MOOSAZADEH, HAMAYOON DIEDERICH, MICHAEL A/K/A HOTEL AT TIMES
SQUARE, HHLP DUO TWO LESSEE LLC CANDLEWOOD SUITES, NEW GENERATION
MANAGEMENT CORP. A/K/A BEST WESTERN PLUS PLAZA HOTEL, EXECUTIVE LE
SOLEIL NEW YORK LLC A/K/A EXECUTIVE HOTEL LE SOLEIL NEW YORK,
COMMACK NEW YORK HOTEL LIMITED PARTNERSHIP A/K/A HOWARD JOHNSON,
GEMINI 37 W 24 STREET LLC A/K/A WYNDHAM GARDEN, 228 WEST 47 STREET
XYZ CORP., 237 WEST 54 STREET XYZ CORP., 206 EAST 52 STREET XYZ
CORP., 304 EAST 42 STREET XYZ CORP., ONE UNITED NATIONS PLAZA XYZ
CORP., 343 WEST 39 STREET XYZ CORP., 232 WEST 29 STREET XYZ CORP.,
18 WEST 25 STREET XYZ CORP., 305 WEST 39 STREET XYZ CORP., 17 WEST
32 STREET XYZ CORP., 307 WEST 79 STREET XYZ CORP., 4 WEST 31 STREET
XYZ CORP., 109 WEST 45 STREET XYZ CORP., 345 WEST 35 STREET XYZ
CORP., 33 WEST 55 STREETXYZ CORP., 250 WEST 43 STREET XYZ CORP.,
851 EIGHTH AVENUE XYZ CORP., 337 WEST 39 STREET XYZ CORP., 6 WEST
32 STREET XYZ CORP., 59 WEST 46 STREET XYZ CORP., 111 8TH AVENUE
XYZ CORP., 3934 21ST STREET LONG ISLAND CITY XYZ CORP., 38 WEST 36
STREET XYZ CORP., 38-61 12TH STREET LONG ISLAND CITY XYZ CORP., 37
WEST 24 STREET XYZ CORP. AND JOHN/JANE DOE, Defendants, Case No.
153930/2022, was removed from the Supreme Court of the State of New
York, County of New York, to the U.S. District Court for the
Southern District of New York on Oct. 12, 2022.
The Clerk of Court for the Southern District of New York assigned
Case No. 1:22-cv-08684 to the proceeding.
The Plaintiffs in this complaint allege multiple violations of the
Fair Labor Standards Act and seek to maintain a collective action
under the FLSA.
Apple Commuter Inc. is a hospitality company based in New
York.[BN]
The Defendants are represented by:
Daniel F. Carrascal, Esq.
Gerald C. Waters, Jr., Esq.
Larry R. Martinez, Esq.
MELTZER, LIPPE, GOLDSTEIN & BREITSTONE LLP
190 Willis Avenue
Mineola, NY 11501
Telephone: (516) 747-0300
E-mail: dcarrascal@meltzerlippe.com
gwaters@meltzerlippe.com
lmartinez@meltzerlippe.com
BIG LOTS: N.Y. Court Dismisses Devey Suit Over Deceptive Marketing
------------------------------------------------------------------
In the case, AMY DEVEY, individually and on behalf of all others
similarly situated, Plaintiff v. BIG LOTS, INC., Defendant, Case
No. 21-CV-6688L (W.D.N.Y.), Judge David G. Larimer of the U.S.
District Court for the Western District of New York grants the
Defendant's motion to dismiss the complaint.
The Plaintiff, on behalf of herself and a putative class of
individuals who purchased the subject product in the state of New
York, brings the action against Big Lots. She alleges that the
Defendant manufactured, marketed and sold 24.2 oz. canisters of
Fresh Finds-brand Columbian coffee which were incapable of
producing the "up to 210 suggested strength 6 fl. oz. servings"
advertised on the label, when prepared according to the label's
instructions.
The Plaintiff asserts causes of action for deceptive marketing
under N.Y. General Business Law ("GBL") Sections 349 and 350,
breach of express warranty, breach of the implied warranty of
merchantability, violation of the Magnuson Moss Warranty Act
("MWWA), 15 U.S.C. Section 2301 et seq., negligent
misrepresentation, fraud, and unjust enrichment, and seeks
compensatory, statutory, and punitive damages.
The Defendant now moves to dismiss the complaint for failure to
state a claim pursuant to Fed. R. Civ. Proc. 12(b)(1) and 12(b)(6),
and failure to plead fraud with particularity.
Judge Larimer finds that because the Plaintiff's disjointed
allegations of label reading and Product purchases at various times
and places do not plausibly give rise to the inference that she
actually saw and read the Product's label prior to making a
specific purchase decision, let alone that such exposure or
purchase was one of those alleged to have taken place in in New
York, within the applicable three-year statute of limitations, her
complaint fails to state a claim under N.Y. GBL Sections 349 and
350. Hence, those claims are dismissed.
Judge Larimer also finds that the Plaintiff alleges only that she
"provided or will provide notice to the Defendant, its agents,
representatives, retailers, and their employees," and that the
Defendant "should have been aware of these issues" due to
unspecified "complaints by regulators, competitors, and consumers,
to its main offices and through online forums." He says, it is well
settled that such allegations are insufficient to indicate proper
notice, or to avoid dismissal. The Plaintiff's breach of express
warranty claim is accordingly dismissed.
The Plaintiff's claim for breach of the implied warranty of
merchantability is also dismissed. Judge Larimer holds that the
Plaintiff's breach of implied warranty claim fails for the same
reason as her express warranty: She fails to allege compliance with
New York's notice requirement. Moreover, her implied warranty of
merchantability claim is insufficiently stated because she does not
plausibly allege that the Product was unfit for human consumption.
The dismissal of the Plaintiff's express and implied warranty
claims accordingly vitiates her MMWA claim: That claim is
dismissed, Judge Larimer holds.
Judge Larimer dismisses the Plaintiff's negligent misrepresentation
claim as well. He says the Plaintiff's self-serving and conclusory
claims that Big Lots enjoys a "best-in-class" reputation for
"customer service and integrity," with an attendant duty to
accurately represent its products, could be applied to millions of
manufacturers and retailers: They do not plausibly describe a
relationship of unique "trust and confidence" beyond that of a
typical manufacturer and purchaser, or otherwise suggest that any
special relationship existed.
The Plaintiff has also failed to plausibly allege fraudulent
intent. She does not set forth any facts that establish a
fraudulent motive on the part of the Defendant, or that strongly
suggest reckless disregard for accurate labeling. Her allegations
are manifestly insufficient to satisfy the Fed. R. Civ. Proc. 9(b)
standard for fraudulent intent, and Judge Larimer accordingly
dismisses the Plaintiff's fraud claim.
Finally, Judge Larimer rules that the Plaintiff's unjust enrichment
claim relies on the same operative facts as her other claims. Thus,
to the extent these claims ultimately succeed, the unjust
enrichment claim would be duplicative, and to the extent the claims
fail, the basis for her unjust enrichment claim would necessarily
crumble. The Plaintiff's unjust enrichment claim is dismissed.
For the foregoing reasons, the Defendant's motion to dismiss the
complaint is granted, and the complaint is dismissed in its
entirety.
A full-text copy of the Court's Oct. 12, 2022 Decision & Order is
available at https://tinyurl.com/5n8h7n6v from Leagle.com.
BLINKS DELI: Faces Catalan Suit Over Failure to Pay Proper Wages
----------------------------------------------------------------
SANTIAGO CATALAN, on behalf of himself and all others similarly
situated, Plaintiff v. BLINKS DELI, INC., d/b/a BLINKS DELI AND
PIZZA, and CHUNG PAK, individually, Defendants, Case No.
2:22-cv-06159-NM-ST (E.D.N.Y., Oct. 12, 2022) arises from the
Defendants' alleged violations of the Fair Labor Standards Act and
the New York Labor Law by failing to pay proper minimum wages and
overtime compensation, failing to provide annual wage notices, and
failing to provide wage statements.
The Plaintiff was employed as a deliveryman and cook at Blinks Deli
and Pizza from June 2017 until June 2021.
Blinks Deli, Inc., d/b/a Blinks Deli and Pizza, is a domestic
corporation in the restaurant industry, having its principal place
of business in Long Island City, New York.[BN]
The Plaintiff is represented by:
Yale Pollack, Esq.
THE LAW OFFICES OF YALE POLLACK
66 Split Rock Road
Syosset, NY 11791
Telephone: (516) 634-6340
E-mail: ypollack@yalepollacklaw.com
BP EXPLORATION: Court Grants Summary Judgment Bid in Wilson Suit
----------------------------------------------------------------
Judge Wendy B. Vitter of the U.S. District Court for the Eastern
District of Louisiana grants BP's Motion for Summary Judgment in
the lawsuit captioned MARK WILSON v. BP EXPLORATION & PRODUCTION
INC., ET AL., SECTION: D (4), Case No. 17-4278-WBV-KWR (E.D. La.).
The Motion was filed by Defendants BP Exploration & Production
Inc., BP America Production Company, and BP p.l.c. (collectively,
"BP"). Defendants Halliburton Energy Services, Inc., Transocean
Holdings, LLC, Transocean Deepwater, Inc., and Transocean Offshore
Deepwater Drilling, Inc., have also joined in the Motion. The
Motion is unopposed.
Judge Vitter grants the Motion and Wilson's claims against BP
Exploration & Production Inc., BP America Production Company, BP
p.l.c., Halliburton Energy Services, Inc., Transocean Offshore
Deepwater Drilling, Inc., Transocean Holdings, LLC, and Transocean
Deepwater, Inc., are dismissed with prejudice.
The case arises from Mark Wilson's alleged exposure to toxic
chemicals following the Deepwater Horizon ("DWH") oil spill that
took place on April 20, 2010. On Jan. 11, 2013, while presiding
over the multidistrict litigation arising out of the DWH incident,
United States District Judge Carl J. Barbier approved the Deepwater
Horizon Medical Benefits Class Action Settlement Agreement (the
"MSA"). The MSA includes a Back-End Litigation Option ("BELO") that
permits certain class members to sue BP for Later-Manifested
Physical Conditions ("LMPC's").
After opting out of the MSA, Wilson filed a Complaint on April 29,
2017, against BP Explorations & Production Inc., BP America
Production Company, Inc., BP p.l.c., Transocean Holdings LLC,
Transocean Deepwater Inc., Transocean Offshore Deepwater Drilling
Inc., and Halliburton Energy Services, Inc. In the Complaint,
Wilson alleges that he was exposed to oil and/or oil-dispersing
chemicals and/or decontaminants used during the oil spill cleanup
by virtue of his environment.
In the Complaint, Wilson also "adopts and incorporates by reference
all matters originally pled" in the Complaint filed in Civ. A. No.
13-2329-CJB-JCW, Marina Pacheco-Ruz, et al. v. BP Exploration &
Production Inc., et al. (E.D. La.), wherein Wilson and
approximately 29 other plaintiffs alleged that they experienced
"headaches, nausea, vomiting, respiratory problems, and eye
irritation, among other adverse health effects associated with
exposure to crude oil and dispersants and other harmful chemicals
in the environment resulting from the Oil Spill."
On Oct. 18, 2021, with the Court's consent, Wilson filed a First
Amended Complaint, providing additional information to support his
claims and maintain his allegation that he "has been exposed to
crude oil, chemical dispersants, and the hazardous substances that
are contained therein and, as a direct and proximate cause, has
suffered both acute and chronic injury, including but not limited
to the injuries set forth in Exhibit 'A'." The Court notes that
there is no "Exhibit A" attached to the First Amended Complaint,
but that there is an "Exhibit A" attached to Wilson's original
Complaint.
BP filed the instant Motion on Sept. 2, 2022, asserting that it is
entitled to summary judgment under Fed. R. Civ. P. 56 because
Wilson has provided insufficient admissible evidence to connect his
alleged conditions with exposure to oil or dispersants. BP points
out that while his case was part of the MDL, Wilson alleged that he
suffered from "nausea and other injuries as may be shown by further
evidence" as a result of the oil spill response and cleanup. BP
also points out that Wilson failed to provide an expert report by
the Aug. 22, 2022 deadline set forth in the Court's Amended
Scheduling Order.
BP further asserts that, because of the technical nature of the
proof, courts have uniformly held that toxic tort plaintiffs must
provide expert testimony to meet their burden of proving causation.
BP contends that, since the nature of the proof is technical,
courts have repeatedly dismissed claims of plaintiffs who alleged
injuries from exposure to the DWH spill but failed to provide
expert support for their claims. BP argues that, for these reasons,
Wilson's claims lack the expert support required to carry his
burden of proof on causation, which is a foundational element of
his claim. As such, BP asks the Court to grant its Motion and
dismiss Wilson's claims with prejudice.
As BP highlights, Judge Barbier previously described the BELO and
B3 cases in similar terms.
Judge Vitter notes that BELO cases and the B3 cases are similar in
several important respects. Both allege personal injuries or
wrongful death due to exposure to oil or other chemicals used
during the oil spill response. Furthermore, both BELO plaintiffs
and B3 plaintiffs must prove that the legal cause of the claimed
injury or illness is exposure to oil or other chemicals used during
the response.
In a separate matter, the Court recently explained that the Fifth
Circuit and at least nine Sections of this Court have uniformly
held that, with regard to BELO plaintiffs, absent expert testimony,
a BELO plaintiff cannot meet his burden of proof on causation.
The Court finds that because Wilson failed to identify a causation
expert in this case by the Court's Aug. 22, 2022 deadline and did
not move for an extension of that deadline, or for an extension of
his deadline to respond to the instant Motion, he cannot meet his
burden of proof on causation. Indeed, the record reveals no
admissible evidence whatsoever to support general causation. Thus,
Wilson cannot meet his burden of proof on causation and BP is
entitled to summary judgment as a matter of law.
A full-text copy of the Court's Order and Reasons dated Oct. 6,
2022, is available at https://tinyurl.com/ac33hfb5 from
Leagle.com.
CACIQUE LLC: Faces Rodriguez Suit Over Unlawful Labor Practices
---------------------------------------------------------------
ISMAEL ARRIETA RODRIGUEZ, on behalf of himself and other current
and former aggrieved employees, Plaintiff v. CACIQUE LLC; and
CACIQUE FOODS LLC; and DOES 1 to 100, inclusive, Defendants, Case
No. 22STCV33354 (Cal. Super., Los Angeles Cty., Oct. 12, 2022) is a
Private Attorneys' General Act of 2004, Labor Code representative
action brought by Plaintiff on behalf of the State of California,
himself and other current and former aggrieved employees, arising
from the Defendant' unlawful labor policies and practices.
The Plaintiff seeks civil penalties associated with Defendants'
violations based on their failure to pay wages for all hours worked
at the employees' minimum wage rate or overtime rate, failure to
pay reporting time pay, failure to provide all legally required and
legally compliant meal and rest periods, failure to indemnify
employees for employment-related expenditures, failure to timely
pay earned wages during employment, failure to produce requested
employment records, failure to provide complete and accurate wage
statements, failure to timely pay all unpaid wages following
separation of employment, failure to maintain temperatures
providing reasonable comfort, and failure to provide suitable
seating.
The Plaintiff was employed by the Defendants in an hourly position
from approximately September 30, 2020 until October 26, 2021.
Founded in 1973 and headquartered in Monrovia, California, Cacique
Inc. is a purveyor of Mexican cheeses, creams, yogurts, and
chorizos.[BN]
The Plaintiff is represented by:
Joseph Lavi, Esq.
Vincent C. Granberry, Esq.
Danielle Montero, Esq.
LAVI & EBRAHIMIAN, LLP
8889 W. Olympic Blvd., Suite 200
Beverly Hills, CA 90211
Telephone: (310) 432-0000
Facsimile: (310) 432-0001
E-mail: jlavi@lelawfirm.com
vgranberry@lelawfirm.com
dmontero@lelawfirm.com
CIGNA HEALTHCARE: California Court Dismisses Saloojas Class Suit
----------------------------------------------------------------
Judge Charles R. Breyer of the U.S. District Court for the Northern
District of California grants the Defendant's motion to dismiss the
lawsuit styled SALOOJAS, INC., Plaintiff v. CIGNA HEALTHCARE OF
CALIFORNIA, INC., Defendant, Case No. 22-cv-03270-CRB (N.D. Cal.).
The Plaintiff alleges that Cigna violated the Families First
Coronavirus Response Act ("the FFCRA") and the Coronavirus Aid,
Relief, and Economic Security Act ("the CARES Act"), as well as
other federal and state laws, by failing to reimburse Saloojas for
COVID-19 testing services it provided to its patients.
Saloojas is a provider of COVID-19 diagnostic testing services. It
brings this putative class action against Cigna, claiming that
Cigna has failed to properly reimburse Saloojas for tests it
provided to its patients. As an out-of-network provider, Saloojas
argues that the CARES Act entitles it to full reimbursement of the
COVID-19 testing services it billed to Cigna, without the
imposition of cost-sharing, prior authorization or other medical
management requirements, and that Cigna intentionally disregarded
its obligations to comply with those requirements.
Saloojas brings six claims: (1) A violation of Section 6001 of the
FFCRA and Section 3202 of the CARES Act; (2) a violation of Section
502(a)(1)(B) of ERISA; (3) a violation of 18 U.S.C. Section 1962(c)
(Racketeer Influenced and Corrupt Organizations Act, RICO); (4)
promissory estoppel; (5) injunctive relief; and (6) a violation of
California's Unfair Competition Law ("UCL").
In its motion to dismiss, Cigna argues that Section 3202 of the
CARES Act confers no private cause of action on providers, and this
claim should, thus, be dismissed as a matter of law. In line with
Judge Jacqueline Scott Corley and Judge Maxine M. Chesney's recent
conclusions on the same issue, the Court agrees, and dismisses this
claim.
Judge Breyer notes that Saloojas has filed many similar complaints
against different insurers in this district, including Saloojas,
Inc. v. Aetna Health of California, Inc., 22-cv-1696, 22-cv-1702,
22-cv-1703, 22-cv-1704, 22-cv-1706, 2022 WL 2267786 (N.D. Cal. June
23, 2022) (Aetna I); Saloojas, Inc. v. Aetna Health of California,
Inc., 22-cv-2887, dkt. 36 (N.D. Cal. Sept. 30, 2022) (Aetna II);
and Saloojas, Inc. v. Blue Shield of Cal. Life & Health Ins. Co.,
22-cv-3267, dkt. 27 (N.D. Cal. Oct. 3, 2022).
Saloojas has not argued, and no court has found, an express right
of action for COVID-19 testing providers in Section 3202 of the
CARES Act, Judge Breyer holds. Therefore, the issue is whether the
CARES Act provides an implied private cause of action for providers
like Saloojas to enforce Section 3202.
Under Alexander v. Sandoval 532 U.S. 275, 286 (2001), which governs
this inquiry, Judge Breyer says the judicial task is to interpret
the statute Congress has passed to determine whether it displays an
intent to create not just a private right but also a private
remedy.
The factors laid out in Cort v. Ash, 422 U.S. 66 (1975), also guide
the analysis: "First, is the plaintiff one of the class for whose
especial benefit the statute was enacted,--that is, does the
statute create a federal right in favor of the plaintiff? Second,
is there any indication of legislative intent, explicit or
implicit, either to create such a remedy or to deny one? Third, is
it consistent with the underlying purposes of the legislative
scheme to imply such a remedy for the plaintiff? And finally, is
the cause of action one traditionally relegated to state law, in an
area basically the concern of the States, so that it would be
inappropriate to infer a cause of action based solely on federal
law?"
Despite the fact that the other Cort factors point toward
recognizing an implied cause of action, because Congress has given
no indication that it intended to confer a private cause of action
on providers like Saloojas, which is the Supreme Court's primary
concern in Alexander, the Court finds that no private cause of
action was created, and this claim should be dismissed.
Judge Breyer also holds that because amendment to this claim would
be futile, it is dismissed without leave to amend.
As in Aetna II and Blue Shield, Judge Breyer points out that
Saloojas cannot claim a violation of Section 502(a)(1)(B) of ERISA
because it has not alleged a valid assignment, and, to the extent
that Saloojas argues that the FFCRA and CARES Act repealed the
requirement to plead an assignment, that is nowhere to be found in
the text of those acts.
To the extent that Saloojas argues that the FFCRA and CARES Act
gave providers standing to pursue claims under ERISA without
securing an assignment, that argument too should fail, as it did in
Aetna II, Judge Breyer also opines, among other things.
As a result, Saloojas's claim under ERISA Section 502(a)(1)(B) is
dismissed with leave to amend, so Saloojas may file a complaint
alleging facts sufficient to find that Saloojas's patients assigned
their healthcare benefits under Section 502(a)(1)(B) to Saloojas.
While Cigna argues many grounds upon which to grant their motion to
dismiss on the RICO claim, because the complaint clearly fails to
plead predicate acts with 9(b) particularity, as in Aetna II and
Blue Shield, the Court dismisses this claim on that ground alone.
Because it is not clear that amendment would be futile, Judge
Breyer holds that Saloojas's RICO claim is dismissed with leave to
amend.
Because Saloojas has failed to allege an unambiguous promise by
Cigna, the Promissory Estoppel claim is dismissed with leave to
amend, Judge Breyer holds. The claim is dismissed with leave to
amend so Saloojas may allege any clear and unambiguous promise
Cigna has made.
Because injunctive relief is a remedy, not a cause of action, Judge
Breyer holds this claim is dismissed with prejudice.
Because the California UCL claim, like Saloojas's RICO claim, fails
to satisfy Federal Rule of Civil Procedure 9(b), it is also
dismissed, Judge Breyer holds. Because it is not entirely clear
that amendment would be futile, this dismissal is with leave to
amend.
For these reasons, the Court grants Cigna's motion to dismiss.
Claim I (Violation of the FFCRA and the CARES Act) and Claim V
(Injunctive Relief) are dismissed without leave to amend. Claim II
(Section 502(a)(1)(B) of ERISA), Claim III (RICO), Claim IV
(Promissory Estoppel) and Claim VI (California UCL) are dismissed
with leave to amend. Saloojas may file an amended complaint within
21 days of this order.
A full-text copy of the Court's Order dated Oct. 6, 2022, is
available at https://tinyurl.com/yfbexphv from Leagle.com.
CINCINNATI INSURANCE: Hirschfield-Louik Suit Dismissed W/ Prejudice
-------------------------------------------------------------------
In the case, BETTY JO HIRSCHFIELD-LOUIK, DMD, t/a UPTOWN DENTAL,
individually and on behalf of others similarly situated, et al.,
Plaintiffs v. CINCINNATI INSURANCE COMPANY, et al., Defendants.
(Applies to all Member Cases), Case Nos. 2:20-cv-00386,
2:20-cv-00604, 2:20-cv-00816 (Lead Case), 2:20-cv-01238,
2:20-cv-01245, 2:20-cv-01261, 2:20-cv-01266, 2:20-cv-01727 (W.D.
Pa.), Judge Mark R. Hornak of the U.S. District Court for the
Western District of Pennsylvania grants Cincinnati's Motion to
Dismiss Plaintiffs' claims.
The Plaintiffs consist of dental practices, restaurants, minor
league baseball operations organizations, and a salon, all of whom
bring claims against their commercial property insurance carrier --
Cincinnati -- alleging that Cincinnati wrongfully denied them
coverage for claims stemming from the global coronavirus pandemic.
As the Court explained in its Opinion granting the Defendants'
Motion to Dismiss in In re: Erie COVID-19 Business Interruption
Protection Insurance Litigation, Case No. 21-mc-1 (W.D. Pa. Oct.
14, 2022) -- a multidistrict litigation (MDL) consisting of over 30
cases brought by policyholders of Erie Insurance Group based on
nearly identical claims as the Plaintiffs' claims -- the types of
claims that the Plaintiffs assert are far from unique, as they
mirror those asserted by business owners in thousands of similar
cases nationwide.
The Plaintiffs allege that starting in March 2020, they began to
suffer significant financial consequences when they reduced their
business operations or temporarily closed their businesses
altogether following the outbreak of COVID-19, which has been one
of the most serious public health events in history with
devastating consequences across all aspects of life, including the
loss of life itself. They filed insurance claims for their business
losses with Cincinnati under the commercial property insurance
policies Plaintiffs had purchased from it. Cincinnati denied those
claims.
The resulting lawsuits that the Plaintiffs filed are eight of a
multitude of actions in state and federal courts in which property
owners with commercial insurance policies with Cincinnati and other
carriers have alleged that their property insurers wrongfully
denied COVID-19-related claims covered by their policies.
Beginning in 2020, all the Plaintiffs initially filed individual
actions against Cincinnati. On Nov. 23, 2020, this Court
consolidated five of those actions because it concluded that the
actions raised sufficiently common questions of law and that
consolidation would further sound administration of justice in
those actions. On May 14, 2021, the parties notified the Court that
Cincinnati and the Plaintiffs in two other actions against
Cincinnati before this Court sought to have those actions
consolidated with those in this case. And on Aug. 25, 2021, the
Court consolidated those two actions, as well as one other similar
action against Cincinnati before the Court, with those in this
case.
Prior to the Court's August 25, 2021 consolidation Order, the Court
also noted the approach that the Court had taken in its oversight
of the multidistrict litigation in In re: Erie, namely giving the
Plaintiffs in the actions already consolidated in this case and
those that wished to have their actions consolidated the
opportunity to file a Consolidated Amended Complaint ("CAC").
The Plaintiffs filed their CAC on Oct. 7, 2021. In it, they assert
two claims for relief: (1) declaratory relief for the Plaintiffs
and class members in the form of a declaratory judgment that their
asserted business interruption losses are covered under their
Cincinnati commercial insurance policies (Count One); and (2)
relief on behalf of the Plaintiffs and the class members for
Cincinnati's alleged breach of contract in failing to provide
claimed coverage under Cincinnati's insurance policies.
On Dec. 23, 2021, the Defendants filed the pending Motion to
Dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6), and
the Plaintiffs filed their Brief in Opposition to the Motion to
Dismiss on Jan. 27, 2022. Oral argument as to the Motion to Dismiss
occurred on May 16, 2022.
As the Court observed in its Erie Opinion, Judge Hornak holds that
the COVID-19 pandemic has had detrimental consequences to people
all over the world that cannot be overstated. Nevertheless, he
concludes that the Plaintiffs have not plausibly pleaded that they
are entitled to coverage under the Cincinnati Policies for the
additional property loss consequences that they assert they
suffered as a result of the pandemic and the associated government
orders limiting how the properties could be used.
Judge Hornak further concludes that the Plaintiffs could not amend
their CAC to allege additional facts or law that would plausibly
show that they are entitled to such coverage. Thus, any amendment
to the CAC would be futile. He therefore grants Cincinnati's Motion
to Dismiss and dismisses these actions with prejudice.
An appropriate Order will be issued.
A full-text copy of the Court's Oct. 14, 2022 Order is available at
https://tinyurl.com/4bm625mw from Leagle.com.
CONCHO RESOURCES: Corral May File Surreply to RUSCO's Reply
-----------------------------------------------------------
In the case, SAMUEL CORRAL, Individually and on Behalf of All
Others Similarly Situated, Plaintiff v. CONCHO RESOURCES, INC., and
CONOCOPHILLIPSCOMPANY, Defendants, and RUSCO OPERATING, LLC, and
ALLY CONSULTING, LLC, Intervening Defendants, Case No. 21-0390
KG/SMV (D.N.M.), Judge Kenneth J. Gonzales of the U.S. District
Court for the District of New Mexico grants the Plaintiff's Motion
for Leave to File a Surreply to RUSCO's Reply.
The Plaintiff may file a surreply to RUSCO's Reply of no more than
10 pages.
A full-text copy of the Court's Oct. 12, 2022 Order is available at
https://tinyurl.com/mwxtrmaa from Leagle.com.
EMPRESS AMBULANCE: Fails to Protect Customers' Info, Castaldo Says
------------------------------------------------------------------
PIERLUIGI CASTALDO individually and on behalf of all others
similarly situated, Plaintiff v. EMPRESS AMBULANCE SERVICES, LLC,
d/b/a EMPRESS EMS, Defendant, Case No. 7:22-cv-08663 (S.D.N.Y.,
Oct. 12, 2022) is a class action against Defendant for its failure
to properly secure and safeguard the private and sensitive
information it collected, maintained, stored, analyzed, and used to
provide its services in violation of the New York Deceptive Acts
and Practices Act.
According to the complaint, the Plaintiff and other patients
trusted Defendant with their personally identifiable information
and protected health information but Defendant betrayed that trust.
The Defendant failed to use reasonable, up-to-date security
practices and protocols to prevent the occurrence of data breach
from May 26, 2022, to July 14, 2022. The Defendant further failed
to provide a timely, adequate, and accurate notice to Plaintiff and
members of the proposed Class, says the suit.
As a result of Defendant's conduct, the Plaintiff and the Class
have and will be required to continue to undertake and incur
out-of-pocket, expensive, and time-consuming efforts to mitigate
the actual and potential impact of the data breach on their lives
by, among other things, placing freezes and alerts with credit
reporting agencies, contacting their financial institutions,
closing or modifying financial accounts, closely reviewing and
monitoring their credit reports and accounts for unauthorized
activity, changing passwords on medical portals, and requesting and
maintaining accurate medical records outside of those kept by
medical providers, the suit asserts.
Empress Ambulance Services, Inc., d/b/a Empress EMS, is a New
York-based ambulance services provider.[BN]
The Plaintiff is represented by:
Michael R. Reese, Esq.
REESE LLP
100 West 93rd Street, 16th Floor
New York, NY 10025
Telephone: (212) 643-0500
E-mail: mreese@reesellp.com
- and -
Brian C. Gudmundson, Esq.
Jason P. Johnston, Esq.
Michael J. Laird, Esq.
Rachel K. Tack, Esq.
ZIMMERMAN REED LLP
1100 IDS Center 80 South 8th Street
Minneapolis, MN 55402
Telephone: (612) 341-0400
Facsimile: (612) 341-0844
E-mail: brian.gudmundson@zimmreed.com
jason.johnston@zimmreed.com
michael.laird@zimmreed.com
rachel.tack@zimmreed.com
- and -
Christopher D. Jennings, Esq.
Nathan I. Reiter III, Esq.
THE JOHNSON FIRM
610 President Clinton Ave., Suite 300
Little Rock, AR 72201
Telephone: (501) 372-1300
E-mail: chris@yourattorney.com
nathan@yourattorney.com
EPIC AIRCRAFT: Hanney's Bid to Strike Affirmative Defenses Granted
------------------------------------------------------------------
Magistrate Judge Mustafa T. Kasubhai of the U.S. District Court for
the District of Oregon, Eugene Division, issued a Corrected Opinion
and Order in the lawsuit captioned BRUNO HANNEY and PAUL TAYLOR,
individually and on behalf of all others similarly situated,
Plaintiffs v. EPIC AIRCRAFT LLC, a Delaware limited liability
company, Defendant, Case No. 6:21-cv-01199-MK (D. Or.).
The Corrected Opinion and Order grants in part and denies in part
the Plaintiffs' motion to strike affirmative defenses.
The Plaintiffs filed this putative class action against the
Defendant alleging breach of contract, breach of the implied
covenant of good faith and fair dealing, and for violating the
Oregon Unlawful Trade Practices Act ("UTPA"), Or. Rev. Stat.
("ORS") Sections 646.605, et seq. The Defendant responded with 19
affirmative defenses. The Plaintiffs move to strike nine of those
affirmative defenses.
Epic manufactures airplanes. In 2014, it announced its plan to
design, develop, and manufacture a single-engine, six-seat
turboprop E1000 aircraft, with hopes of receiving Federal Aviation
Administration ("FAA") certification in 2015. Epic took
reservations for the E1000 aircraft at a price of $2.75 million.
Epic's customers, including the Plaintiffs, entered into aircraft
customer reservation agreements and submitted the required monetary
deposits. After several years of reassuring customers that their
E1000 aircraft orders would be fulfilled, Epic received FAA type
and production certification in November 2019 and July 2020.
After FAA certification for the E1000, Epic informed its customers
with reservation agreements that the aircraft would not be
available for sale. Instead, Epic offered to sell a "new" E1000 GX
aircraft model to its existing E1000 customers for a retail price
of $3.85 million. Epic refused to honor its customer reservation
agreements to manufacture and sell E1000 aircraft to the Plaintiffs
and other aircraft reservation holders.
In August 2021, the Plaintiffs filed this lawsuit on behalf of
themselves and other reservation agreement holders, alleging that
Epic breached the terms of E1000 aircraft customer reservation
agreements and made material misrepresentations and omissions in
connection with the marketing and sale of E1000 aircraft. The
Defendant moved to dismiss and moved to strike.
The Court recommended that those motions be denied. The Defendant
filed an Answer with 19 affirmative defenses, nine of which the
Plaintiffs now move to strike.
The Plaintiffs assert that the Defendant's first, sixth, twelfth,
sixteenth, seventeenth, and eighteenth affirmative defenses are
either not legally cognizable defenses or improperly challenge the
elements of the Plaintiffs' prima facie case. The Plaintiffs also
assert that the Defendant's eighth, ninth, and tenth affirmative
defenses are insufficiently pled and, thus, fail to give the
Plaintiffs sufficient notice of the defense.
The Court concludes that the Plaintiffs will not be prejudiced by
the Defendant's affirmative defenses, nor has the Plaintiffs
explained how the defenses could have no possible bearing on the
subject matter of the litigation. Accordingly, the Plaintiffs'
motion as to the Defendant's first, sixth, twelfth, seventeenth,
and eighteenth affirmative defenses is denied.
Next, the Plaintiffs contend that the Defendant's eighth, ninth,
and tenth affirmative defenses are insufficiently pled. The Court
agrees with the Plaintiffs that the Defendant's eighth, ninth, and
tenth affirmative defenses are insufficiently pled. Those defenses
were pled as:
* EIGHTH AFFIRMATIVE DEFENSE -- The Plaintiffs failed to
mitigate their damages;
* NINTH AFFIRMATIVE DEFENSE -- The Plaintiffs assumed the risk
of damages incurred if any; and
* TENTH AFFIRMATIVE DEFENSE -- The Plaintiffs have delayed in
asserting their rights, and, because of this delay, they are
no longer entitled to bring an equitable claim.
The Defendant has stated the nature of its affirmative defenses but
not the grounds. Judge Kasubhai holds that some factual bases, even
brief, is necessary to be sufficiently pled.
Judge Kasubhai says the Defendant may still seek leave to amend its
answer. For instance, if the Defendant requires discovery to
determine the factual basis to assert an affirmative defense, it
may seek leave to amend its answer once it discovers such facts.
For the reasons stated, Judge Kasubhai rules that the Plaintiffs'
motion to strike is denied as to the Defendant's first, sixth,
twelfth, sixteenth, seventeenth, and eighteenth affirmative
defenses, and granted as to the Defendant's eighth, ninth, and
tenth affirmative defenses. The Defendant may seek leave to amend
its eighth, ninth, and tenth affirmative defenses to make those
defenses more definite.
A full-text copy of the Court's Corrected Opinion and Order dated
Oct. 6, 2022, is available at https://tinyurl.com/zj98y662 from
Leagle.com.
FENNEC PHARMACEUTICALS: Court Dismisses Fisher Securities Suit
--------------------------------------------------------------
In the case, JEFFREY D. FISHER, Individually and on Behalf of All
Others Similarly Situated, Plaintiff v. FENNEC PHARMACEUTICALS
INC., ROSTISLAV RAYKOV, and ROBERT ANDRADE, Defendants, Case No.
1:22-CV-115 (M.D.N.C.), Judge Catherine C. Eagles of the U.S.
District Court for the Middle District of North Carolina:
a. grants the Defendants' motion to dismiss the amended
complaint; and
b. denies as moot the Defendants' request for consideration
and judicial notice, and their second request for judicial
notice.
Mr. Fisher bought stock in Fennec while Fennec's application for
approval of a new prescription drug was pending with the Food and
Drug Administration. He contends that in its public statements
about this process beginning on May 28, 2021, Fennec misled
investors about the likelihood the application would be approved.
These misrepresentations and omissions, he contends, violated
Section 10(b) of the Exchange Act and a related regulation known as
Rule 10b-5.
Fennec is a biotech company with its principal place of business in
Research Triangle Park, North Carolina. The company's main focus is
the development of the new drug known as Pedmark, a formulation of
sodium thiosulfate that purports to prevent hearing loss in
children undergoing certain types of chemotherapy treatment.
Because Pedmark is a new pharmaceutical drug, the FDA requires
Fennec to seek and obtain approval for Pedmark through the FDA's
New Drug Application (NDA) process before Fennec can sell, market,
and distribute Pedmark for commercial use in the United States.
If the FDA does not approve an NDA, it will send the sponsor a
Complete Response Letter (CRL), which describes all the specific
deficiencies that the FDA identified in the NDA and when possible,
recommends actions that the sponsor could take to place its NDA in
condition for approval. After receiving a CRL, the sponsor may
resubmit its NDA.
In August 2020, the FDA issued a CRL for the Pedmark NDA. According
to Fennec's announcement, the FDA did not approve the drug because
of the manufacturing deficiencies identified in a Form 483, and no
concerns about the drug's safety or efficacy were identified. On
Nov. 30, 2021, Fennec announced that it received another CRL from
the FDA for the Resubmitted Pedmark NDA as a result of identified
manufacturing deficiencies which need to be satisfactorily resolved
before the Pedmark NDA can be approved. As a result of the CRL
news, Fennec's stock price dropped significantly. The FDA had not
approved Pedmark at the time Mr. Fisher filed the operative
complaint.
Mr. Fisher claims Fennec misled investors "by knowingly or
recklessly failing to disclose known material deficiencies related
to its third-party drug manufacturer," and by making "materially
false and misleading statements" about (or failing to disclose)
these manufacturing deficiencies and their investigation into PII's
efforts to cure those deficiencies.
The Defendants move to dismiss this securities fraud class action
brought by Mr. Fisher for failure to state a claim.
Judge Eagles opines that the complaint contains multiple conclusory
statements that the Defendants acted knowingly or recklessly, but
such conclusory allegations are insufficient. She says perhaps the
factual allegations support an inference of negligence, but they do
not give rise to a strong inference that the Defendants acted with
an "intent to deceive, manipulate, or defraud" that is "at least as
compelling as any opposing inference one could draw.
The Defendants asked the Court to consider 12 documents, 10 as
"incorporated by reference" into the complaint and two upon
judicial notice. But they barely refer to these documents in their
briefs, nor does Mr. Fisher's complaint rely upon them in any
meaningful way. Judge Eagles says there is no need to consider
these documents in evaluating whether the Mr. Fisher's complaint
meets the heightened pleading standards of the PSLRA, so the motion
is denied.
Similarly, the Defendants ask the Court to take judicial notice of
a recent FDA press release. Again, Judge Eagles finds consideration
of this document not needed in evaluating Mr. Fisher's complaint
and ruling on the Defendants' motion to dismiss, so the motion is
also denied.
Mr. Fisher's allegations, taken as a whole, do not raise a strong
inference that the alleged misrepresentations or omissions were in
fact false, or that defendants acted with scienter as to any
misrepresentation or omission, Judge Eagles concludes. Therefore,
she grants the motion to dismiss and denies the Defendants' request
for consideration and judicial notice and second request for
judicial notice. Final judgment will be entered as time permits.
A full-text copy of the Court's Oct. 12, 2022 Memorandum Opinion &
Order is available at https://tinyurl.com/3k2nhkst from
Leagle.com.
FIVE BELOW: Magistrate Judge Recommends Dismissal of Gastelum Suit
------------------------------------------------------------------
Magistrate Judge Stanley A. Boone of the U.S. District Court for
the Eastern District of California issued a Findings and
Recommendations that recommends the dismissal of the lawsuit titled
FERNANDO GASTELUM, Plaintiff v. FIVE BELOW, INC., Defendant, Case
No. 1:22-cv-00825-AWI-SAB (E.D. Cal.).
The Plaintiff is proceeding pro se in this accessibility litigation
pursuant to the Americans with Disabilities Act (ADA) and state law
against the Defendant. The Court sua sponte screened the complaint
pursuant to its independent obligation under Federal Rule of Civil
Procedure 12(h)(3) to determine whether it has subject-matter
jurisdiction over this matter on July 12, 2022.
Currently before the Court for screening is the Plaintiff's first
amended complaint (FAC). For the reasons discussed here, the Court
finds it lacks subject-matter jurisdiction and recommends
dismissal.
The Plaintiff alleges that he is a senior citizen and is missing a
leg; sometimes he uses a wheelchair for mobility, whereas at other
times, he uses a prosthetic leg and a cane.
Five Below owns two "public accommodations," located at (1) 6467
Riverside Drive, Suite 112, in Fresno, California 93722 (the
"Riverside Store"); and (2) at 7628 North Blackstone Ave., in
Fresno, California 93720 (the "Blackstone Store"). The Defendant's
stores are specialty discount stores that sell products that are
less than $5, plus a small assortment of products from $6 to $25,
and create a pleasant flea market-type atmosphere which the
Plaintiff enjoys.
The Plaintiff resides in Casa Grande, Arizona; however, he has
family in California (Shafter, Bakersfield, Fresno, San Jose,
Modesto, and Merced). The Plaintiff alleges that when he visits
Fresno, he "visits various big box stores, including Five Below, to
shop there and, in part, to determine whether they are compliant
with accessibility laws." The Plaintiff alleges he visited the
Defendant's Riverside Store on Jan. 26, 2022, with the intention to
avail himself of their goods or services. During that trip, he
discovered the Riverside Store was not compliant with either the
ADA or state law.
After initiating the instant lawsuit, the Plaintiff visited the
Riverside Store again on Aug. 10, 2022, to conduct business there
and to determine whether the Riverside Store had attempted to
remove the identified barriers; it had not. He alleges he was
denied full and equal access based on the same
previously-identified barriers. That same day, the Plaintiff also
visited the Defendant's Blackstone Store. He alleges that, during
this visit, he discovered the Blackstone Store was also not
compliant with either the ADA or state law, and had the exact same
"barriers" as the Riverside Store.
The FAC asserts the following causes of action: (1) a new cause of
action, titled "Federal Pre-Emption of Unruh's 'Heightened' and
'Special Procedural Requirements Aimed at Limiting Suits by
[Disabled Individuals]'"; (2) Violations of the ADA; (3) Violations
of California's Unruh Act; and (4) Violations of the Disabled
Persons Act.
Accepting the Plaintiff's allegations as true, Judge Boone opines
that the identified areas in the Store are in violation of the ADA
Accessibility Guidelines for Buildings and Facilities (ADAAG) and
are, therefore, not "readily accessible," but constitute
architectural barriers.
The Plaintiff has also alleged that the barriers are readily
removable. At this stage of the litigation and the Court's facial
review of the complaint, the Court finds the redressability element
is sufficiently met. He also alleged his belief, based on
attempting to contact the Defendant's President, that no
remediations are imminent. Thus, Judge Boone finds the Plaintiff
has sufficiently alleged injury in fact.
The Court previously found the Plaintiff's complaint asserted only
conclusory allegations relating to intent to return. Judge Boone
finds the FAC does not appear to cure these deficiencies. The
Plaintiff asserts that he is deterred from returning to the Five
Below Stores until he has been advised that the violations have
been remediated fully and completely and that each store is fully
accessible to him.
Judge Boone holds that these deterrence allegations are conclusory.
The Court cannot conclude the allegations establish a "genuine"
intent to return to the Riverside or Blackstone Store. To this
point, the Court feels compelled to note the internal
inconsistencies within the FAC: the Plaintiff's allegations suggest
the Defendant's Riverside and Blackstone Five Below stores are
uniform in both their goods and their alleged barriers.
The Court notes that, at present, the Plaintiff has filed at least
55 federal accessibility cases across the federal district courts
of California (18 cases in the Eastern District, 14 cases in the
Central District, 14 in the Southern District, and 9 cases in the
Northern District). The Plaintiff also filed approximately 150
cases in the District of Arizona, prior to initiating litigation in
California.
The Court finds the Plaintiff's allegations are insufficient to
establish a genuine intent to return to the Riverside Store or the
Blackstone Store. Because the Plaintiff fails to sufficiently
allege a genuine intent to return to the Riverside Store or the
Blackstone Store, he lacks Article III standing and the Court lacks
jurisdiction over the action. This deficiency warrants dismissal,
Judge Boone holds.
Alternatively, if the District Judge concludes intent to return has
been adequately alleged as to one or both of the Fresno Five Below
stores, the Court recommends the FAC proceed on the ADA claim only
and that the District Judge decline to exercise supplemental
jurisdiction over the Plaintiff's remaining state law claims, or
issue an order to show cause as to why it should not decline
supplemental jurisdiction.
In the instant FAC, the Court notes the Plaintiff has added an
entire cause of action, titled "Federal Pre-Emption of Unruh's
'Heightened' and 'Special Procedural Requirements Aimed at Limiting
Suits by [Disabled Individuals]'." Judge Boone says the Plaintiff
did not seek leave to add this cause of action and doing so now
exceeds the leave he was previously granted. The cause of action
should, therefore, be dismissed.
Finally, to the extent the Plaintiff has anticipated the Court's
recommendation to decline to retain supplemental jurisdiction over
his state law claims and is attempting to assert this new cause of
action as a means of bolstering his argument that supplemental
jurisdiction over the Unruh Act claim is appropriate, the
Plaintiff's arguments will be addressed infra. However, with
respect to the instant purported cause of action, the Plaintiff's
legal arguments devoid of any factual basis are insufficient to
state a claim on which relief may be granted. This "cause of
action" must, therefore, be dismissed, Judge Boone points out.
Similarly, the Court notes the Plaintiff has added a number of
"others similarly situated" phrases to his various allegations
throughout the FAC, which were not included in the original
complaint. The phrase "others similarly situated" may signify an
attempt to recast this litigation as a class action; however, the
Plaintiff did not seek, nor was he granted leave, to convert his
instant individual claims into a putative class. Accordingly, to
the extent the Plaintiff seeks to bring his ADA claim on behalf of
an otherwise unidentified putative class, the FAC does not assert
sufficient factual allegations to do so. Any such claim should,
therefore, be dismissed, Judge Boone holds.
The Court finds the Plaintiff's state law claims substantially
predominate over his ADA claim, and there are compelling reasons to
decline supplemental jurisdiction. The Court recommends declining
to exercise supplemental jurisdiction over the Plaintiff's Unruh
Act and Disabled Persons Act claims for these reasons.
In light of the potential for the Plaintiff to seek far greater
state law damages and his inclusion of a state-law specific legal
theory, the Court finds that his Unruh Act claim substantially
predominates over his federal claim under the ADA.
To the extent the District Judge finds the Plaintiff has adequately
alleged jurisdiction and stated a claim for violations of the ADA,
Judge Boone recommends that the District Judge nonetheless decline
to exercise supplemental jurisdiction over the Plaintiff's state
law claims.
Based on the foregoing, the Court finds the Plaintiff has failed to
establish Article III standing exists; therefore, the Court lacks
jurisdiction over the instant matter. Further, in its July 12, 2022
screening order, the Court provided the Plaintiff the applicable
legal standards and gave Plaintiff an opportunity to amend his
complaint to cure the identified pleading deficiencies.
The Plaintiff's failure to cure the identified pleading defects
demonstrates either an inability or unwillingness to do so, and the
Court concludes that granting further leave to amend is
unwarranted. Accordingly, the Court recommends that the complaint
be dismissed, without prejudice.
However, if the District Judge finds the Plaintiff has alleged
facts sufficient to establish Article III standing, the Court would
then find the compelling interests of comity, as well as
discouraging forum shopping by serial litigants, such as the
Plaintiff support the Court's recommendation to proceed only on his
ADA claim and to decline exercising supplemental jurisdiction over
the state law claims.
Accordingly, Judge Boone recommends that:
1. The first amended complaint be dismissed, without leave to
amend, as frivolous due to lack of subject-matter
jurisdiction and failure to state a claim; and
2. The Clerk of the Court be directed to close this case.
Alternatively, if the District Judge finds the amended complaint
adequately establishes Article III standing and states a claim
under the ADA, the Court recommends the following:
a. The first amended complaint proceed only on the Plaintiff's
ADA claim;
b. The Court either decline to exercise supplemental
jurisdiction over the Plaintiff's state law claims or order
him to show cause why it should not decline to exercise
supplemental jurisdiction over his state law claims; and
c. All other claims, to the extent the Plaintiff has attempted
to assert any, be dismissed.
Judge Boone says these findings and recommendations are submitted
to the district judge assigned to this action, pursuant to 28
U.S.C. Section 636(b)(1)(B) and this Court's Local Rule 304. Within
twenty-one (21) days of service of this recommendation, any party
may file written objections to these findings and recommendations
with the Court and serve a copy on all parties. Such a document
should be captioned "Objections to Magistrate Judge's Findings and
Recommendations."
A full-text copy of the Court's Findings and Recommendations dated
Oct. 6, 2022, is available at https://tinyurl.com/295n3hda from
Leagle.com.
GOFUND ADVANCE: Bid to Strike Class Claims in Haymout Suit Denied
-----------------------------------------------------------------
In the case, HAYMOUNT URGENT CARE PC, et al., Plaintiffs v. GOFUND
ADVANCE, LLC, et al., Defendants, Case No. 22-cv-1245 (JSR)
(S.D.N.Y.), Judge Jed S. Rakoff of the U.S. District Court for the
Southern District of New York denies the Defendants' motion to
strike the Plaintiffs' class allegations.
The Defendants collectively move to strike the class allegations
from the Plaintiffs' First Amended Complaint ("FAC"), pointing to a
class action waiver provision included in various merchant cash
advance ("MCA") agreements that the Plaintiffs allege are
unlawfully usurious loans.
Judge Rakoff notes that it is undisputed that the MCA agreements at
issue contain broadly worded class action waiver provisions
purporting to waive any right to assert any claims against the
other party as a representative or member in any class
representative action. The Defendants contend that these provisions
require striking the Plaintiffs' class allegations before they move
for class certification. The Plaintiffs respond that, at least at
the pleading stage, they have plausibly alleged that the MCA
agreements are void in their entirety, meaning that their class
action waivers cannot be enforced against them.
Judge Rakoff opines that the Plaintiffs have adequately alleged
that the MCA agreements, although styled as purchases of accounts
receivable, in fact operate as and would be considered usurious
loans under New York law. If the MCA agreements are usurious loans
under New York law, then, he says, New York law would also consider
them void. As such, if the MCA agreements are in fact usurious
loans under New York law as the Plaintiffs have alleged, then the
class action waiver provisions contained therein -- like all
aspects of the agreements -- are and were void from the outset.
If Judge Rakoff were to grant the Defendants the relief they
request and strike the Plaintiffs' class allegations on the
pleadings, he would necessarily have to enforce against the
Plaintiffs a provision in an allegedly void contract before any
determination as to the validity of that contract has been made.
Because the Defendants seek to enforce a provision of a contract
that the Plaintiffs have plausibly alleged is void in its entirety,
he declines to strike the Plaintiffs' class allegations at this
stage.
For the sake of clarity as the case proceeds to the certification
stage, Judge Rakoff addresses another of the Plaintiff's arguments
against enforcement of the class action waivers: that they are
unconscionable. He concludes that the class action waiver
provisions, at least to the extent the Defendants seek to enforce
them as to claims clearly arising under the MCA agreements, are not
unconscionable.
Judge Rakoff denies the Defendants' motion, ultimately concluding
that the Plaintiffs have plausibly alleged that the MCA agreements
are entirely void under New York law, which would mean that none of
their provisions -- including the class action waivers -- can be
enforced. As such, the Defendants cannot enforce the MCA
agreements' class action waivers against them at this preliminary
stage based solely on the pleadings.
A full-text copy of the Court's Oct. 12, 2022 Opinion & Order is
available at https://tinyurl.com/3ftprm5s from Leagle.com.
ILLINOIS: District Court Grants Bids to Dismiss Simmons v. Prizker
------------------------------------------------------------------
In the case, CHRISTINE SIMMONS, et al., Plaintiffs v. JAY ROBERT
PRITZKER, in his official capacity, et al., Defendants, Case No. 22
CV 0123 (N.D. Ill.), Judge Manish S. Shah of the U.S. District
Court for the Northern District of Illinois, Eastern Division,
grants the Defendants' motions to dismiss the complaint.
Plaintiffs Christine Simmons and Hsinyi Liu filed suit on behalf of
themselves, their children, and all others similarly situated. They
allege that the state of Illinois, the City of Chicago School
District 299, and Ottawa Township High School #140, among others,
violated students' rights by failing to comply with the Individuals
with Disabilities in Education Act, the Americans with Disabilities
Act, the Rehabilitation Act, the Fourteenth Amendment's Equal
Protection and Due Process Clauses, and Illinois law. They also
allege violations of the Racketeer Influenced and Corrupt
Organizations Act.
On March 13, 2020, at the beginning of the COVID-19 pandemic,
Illinois Governor J.B. Pritzker issued an executive order
instructing all public and private schools serving pre-kindergarten
through 12th grade students to close through March 30, 2020. The
order suspended a state law that requires school districts to
receive approval before implementing virtual learning, and to hold
a public hearing and communicate to teachers, students, and staff
30 days before moving to virtual learning.
The school-shutdown order lasted until the end of the 2019-2020
school year. On June 4, 2020, the governor issued an order allowing
schools to "transition to limited in-person instruction" after the
end of the school year, as long as they complied with certain
public-health measures.
The Plaintiffs allege that the Defendants committed multiple
violations of the IDEA by changing the Plaintiffs' educational
placements without offering prior notice and reconvening IEP
meetings; by not complying with the IDEA's "stay-put provision,"
which requires schools to keep children with disabilities in their
current educational placements while administrative or judicial
due-process proceedings are pending; and failing to reimburse them
for the out-of-pocket expenses they spent on their children to make
up for the schools' failures.
The Plaintiffs say the Defendants violated the ADA and
Rehabilitation Act by denying them equal access to educational
services and programs compared to their non-disabled peers. They
also claim the Defendants violated their Fourteenth Amendment
equal-protection rights by taking actions that disparately impacted
students with disabilities, and violated plaintiffs' Fourteenth
Amendment substantive-due-process rights by ending in-person
instruction. They also claim that the Defendants violated Illinois
law governing special education and a free appropriate public
education. Finally, they claim that the Defendants violated RICO by
committing mail and wire fraud in their applications for IDEA
funding.
The Plaintiffs ask for injunctive and retrospective relief. They
ask that Judge Shah certifies the purported class, and enjoins the
Defendants "and other similarly situated local educational
agencies" from violating the IDEA, the ADA, the Rehabilitation Act,
the Fourteenth Amendment, and state law. They also ask that Judge
Shah appoints a special monitor to figure out how much purported
class members regressed as a result of the changes in their
educational placements, to reconvene IEP meetings, and to make
recommendations to him about compensatory education or pendency
payments for purported class members. But they also specify what
that compensatory education should be: an additional year of
education, or more, for each year that plaintiffs received remote
or hybrid education. Finally, they ask that Judge Shah appoints a
special monitor to ensure that the Defendants don't violate RICO.
Judge Shah finds no reasonable expectation that the governor will
reissue a shutdown order. Nor is there any evidence that the
non-state Defendants can be reasonably expected to shut down
schools. The Plaintiffs' requests for injunctive relief are,
therefore, moot.
Judge Shah further finds that Governor Pritzker and State
Superintendent Ayala are immune from the state-law
injunctive-relief claims. Any nominal-damages RICO claim the
Plaintiffs may be bringing against them in their official
capacities is therefore dismissed.
The Plaintiffs' requests for nominal, compensatory, and punitive
damages under the IDEA, ADA, Rehabilitation Act, and Fourteenth
Amendment are not moot, but they are all subject to
administrative-exhaustion requirements. However, Judge Shah opines
that the Plaintiffs haven't exhausted the administrative process
for any of these claims. He opines that the Plaintiffs haven't
offered evidence that an administrative officer would be incapable
of granting them the compensatory relief they request. The
Plaintiffs also don't contest that they are seeking a free
appropriate public education. Hence, their claims under the ADA,
Rehabilitation Act, and Fourteenth Amendment are therefore
dismissed for failure to exhaust.
With respect to their RICO claim, Judge Shah opines that almost all
of the Plaintiffs' fraud-related who, what, when, where, and how
information is asserted on information and belief, and they offer
no grounds to suspect fraud. What's more, their who, what, when,
where, and how information is too vague to meet Rule 9(b)'s
particularly requirement. And because amending the RICO claims
would be futile, those claims are dismissed with prejudice.
Because he dismisses the federal claims, Judge Shah declines to
exercise jurisdiction over the supplemental state-law claims for
damages and dismiss them without prejudice.
In light of the foregoing, Judge Shah grants the motions to
dismiss. The claims for injunctive relief and for relief under the
IDEA, ADA, Rehabilitation Act, and Fourteenth Amendment are
dismissed without prejudice for lack of jurisdiction and failure to
exhaust administrative remedies. The RICO claims are dismissed with
prejudice, and the remaining state-law claims are dismissed without
prejudice under 28 U.S.C. Section 1367(c)(3). Judgment will be
entered and the civil case will be terminated.
A full-text copy of the Court's Oct. 12, 2022 Memorandum Opinion &
Order is available at https://tinyurl.com/ym3h4yev from
Leagle.com.
IMPERIAL PACIFIC: Genc Allowed to File 2nd Amended Labor Complaint
------------------------------------------------------------------
In the case, OZCAN GENC, HASAN GOKCE, and SULEYMAN KOS, on behalf
of themselves and all others similarly situated, Plaintiffs v.
IMPERIAL PACIFIC INTERNATIONAL (CNMI), LLC and IMPERIAL PACIFIC
INTERNATIONAL HOLDINGS LTD., Defendants, Case No. 1:22-CV-00002
(D.N. Mar. I.), Judge Ramona V. Manglona of the U.S. District Court
for the District of Northern Mariana Islands enters a Memorandum
Decision memorializing reasons granting IPI's motion to dismiss the
first amended complaint without prejudice and granting the
Plaintiffs leave to amend to file a second amended complaint.
The Plaintiffs are three men of Turkish national origin and who
were, at all relevant times, employees of IPI admitted to the
United States under the H-2B temporary foreign worker program as
construction workers to build the Imperial Palace casino/hotel
resort in Garapan, Saipan. All three Plaintiffs started working for
IPI in January 2020 on a six-month contract.
The Plaintiffs bring their Title VII claim on behalf of themselves
and as a class action pursuant to Federal Rule of Civil Procedure
23(b)(3), seeking to represent an estimated class of 107 "persons
of Turkish national origin who were employed by IPI under the H-2B
visa program in 2020 or later."
Towards the end of June 2020, when H-2B workers were negotiating
with IPI to extend their contracts for another six months, one
Taiwanese worker showed the Plaintiffs his paycheck, and that is
when they learned that the Taiwanese were being paid $23 an hour,
nearly three times what IPI was paying them, for the same work. The
Plaintiffs further learned that the Italians were being paid $30 an
hour, also for the same work that they were doing.
IPI started to then miss paydays sometime around June 2020, and the
Plaintiffs filed a lawsuit with the Court in November 2020 pursuant
to the Fair Labor Standards Act (FLSA). They were subsequently
terminated on Dec. 16, 2020. Around December 2020, the Plaintiffs
individually/separately filed a charge of discrimination with the
Equal Employment Opportunity Commission (EEOC), alleging
discrimination on the basis of both national origin and
retaliation.
After they received their Notice of Right to Sue letters from the
EEOC, the Plaintiffs filed the instant employment discrimination
lawsuit against IPI and IPI's parent company IPIH. Having received
leave to amend their complaint after the Court granted IPI's motion
to dismiss, the Plaintiffs timely filed their first amended
complaint alleging employment discrimination under Title VII of the
Civil Rights Act of 1964, 42 U.S.C. Sections 2000e et seq., and
asserting the Court's original jurisdiction under Title VII.
The Plaintiffs assert that IPI and IPIH's "upper-level management,
meaning those persons who were actually in control of IPI's
policies and management-level decision-making, intentionally
discriminated against employees with Turkish national origin and
that both Defendants never had a system for setting wage rates for
construction workers based on objective criteria. Because of IPI's
discriminatory conduct, the Plaintiffs assert class members,
including themselves, suffered damages.
The Plaintiffs also sue IPIH under an alter ego theory. As relief,
they seek: for the case to be expedited pursuant to 42 U.S.C.
Section 2000e-5(f)(5); class certification; compensatory and
punitive damages; costs, expenses, and attorneys' fees pursuant to
42 U.S.C. 2000e-5(k); and any other such relief that is just.
IPI seeks to dismiss with prejudice the Plaintiffs' Title VII claim
for failure to state a claim pursuant to Federal Rule of Civil
Procedure 12(b)(6). The main issue raised is whether the Plaintiffs
plead sufficient facts to plausibly satisfy the fourth element of
the prima facie case of employment discrimination that similarly
situated employees not in their protected class received more
favorable treatment. And because the Court previously dismissed the
Plaintiffs' complaint for the same deficiency, IPI contends this
Court should grant the dismissal with prejudice.
After reviewing the parties' arguments and the applicable law,
Judge Manglona agrees with IPI that the Plaintiffs have not
sufficiently plead facts about similarly situated comparators, but
grants the Plaintiffs leave to amend their complaint. Among other
things, she finds that the Plaintiffs have not plead sufficient
facts to conclude that the Italians and Taiwanese are similarly
situated -- that the Turkish "have similar jobs and display similar
conduct" to the Italians and Taiwanese.
Notably absent from the first amended complaint are facts that
state the Taiwanese and/or Italian individuals who had similar jobs
to the Plaintiffs and were performing similar work to Plaintiffs
were paid more than them. In the beginning of their opposition
brief, the Plaintiffs provide a narrative of facts about the pay
disparity, including claims that Turkish electricians were paid
substantially less than Taiwanese and Italian electricians;
however, the amended complaint does not contain such facts.
Plaintiffs have not plead sufficient facts to conclude that the
Italians and Taiwanese are similarly situated — that the Turkish
"have similar jobs and display similar conduct" to the Italians and
Taiwanese.
At the hearing, the Plaintiffs argued that leave to amend should be
granted because the first amended complaint could be ameliorated to
allege sufficiently similar comparators with changes discussed
during the hearing. Judge Manglona exercises her discretion and
provides the Plaintiffs leave to amend; however, the Court may be
less forgiving if the Plaintiffs fail to plausibly allege
sufficiently similar comparators in their second amended
complaint.
Because the first amended complaint fails to adequately plead facts
that show non-Turkish, similarly situated individuals were paid
more than Plaintiffs, Judge Manglona dismisses the first amended
complaint as to the three named Plaintiffs. As such, she also
dismisses the class action claim because the underlying individual
claims fail.
Judge Manglona grants the Plaintiffs leave to amend. Furthermore,
at the hearing, she granted the Plaintiffs' oral motion for an
extension of time to file the second amended complaint such that it
is due by Nov. 4, 2022. Additionally, should IPI require additional
time to respond to the second amended complaint, whether by answer
or motion, such request for additional time will not be opposed by
the Plaintiffs and will be granted by the Court.
A full-text copy of the Court's Oct. 14, 2022 Memorandum Decision
is available at https://tinyurl.com/bdcrh69z from Leagle.com.
IPPT CAREER: Lawson Suit Removed to S.D. Fla.
---------------------------------------------
The case styled VICTORIA LAWSON, individually and on behalf of all
others similarly situated, Plaintiff v. IPPT CAREER SCHOOL d/b/a
SOUTHERN CALIFORNIA HEALTH INSTITUTE, Defendant, Case No.
2022-015542-CA-01, was removed from the State of Florida, Eleventh
Judicial Circuit Court in and for Miami-Dade County to the U.S.
District Court for the Southern District of Florida on Oct. 12,
2022.
The Clerk of Court for the Southern District of Florida assigned
Case No. 1:22-cv-23303 to the proceeding.
In the complaint, Plaintiff contends IPPT violated the Florida
Telephone Solicitation Act by allegedly sending telephonic sales
calls to solicit the sale of consumer goods and/or services to
individuals residing in Florida without express written consent.
IPPT Career School, d/b/a Southern California Health Institute,
provides education in medical and physical therapy.[BN]
The Defendant is represented by:
Elaine M. Rice, Esq.
JOHNSON, CASSIDY, NEWLON & DECORT, P.A.
3242 Henderson Blvd., Ste. 210
Tampa, FL 33609
Telephone: (813) 699-4859
Facsimile: (813) 235-0462
E-mail: ERice@jclaw.com
LA PETITE ACADEMY: Bid to Move Thompson Suit to State Court Denied
------------------------------------------------------------------
Judge Andre Birotte, Jr., of the U.S. District Court for the
Central District of California denies the Plaintiff's Motion for
Order Remanding Action to State Court in the lawsuit captioned ASIA
THOMPSON, an individual and on behalf of all others similarly
situated, Plaintiff v. LA PETITE ACADEMY, INC., a Delaware
corporation; LEARNING CARE GROUP (MI), INC., a Michigan
corporation; AIMEE WARD, an individual; and DOES 1 through 100,
inclusive, Defendants, Case No. 2:22-CV-04348-AB (JPRx) (C.D.
Cal.).
The Plaintiff initiated this action by filing a Complaint in the
Superior Court of the State of California for the County of Los
Angeles on May 11, 2022. The Complaint alleges that the Plaintiff
and the putative class members were not paid all wages, provided
meal and rest periods, issued accurate wage statements, or paid all
wages due upon termination. She alleges that these violations arise
out of and were caused by the Defendants' common course of conduct
in violation of laws and regulations, and that their policies
and/or practices have resulted in the violation of the Labor Code.
She also consistently alleges that the violations occurred only "at
times."
The Defendants removed the action to this Court on June 24, 2022,
on the basis of the Class Action Fairness Act ("CAFA"). On July 25,
2022, the Plaintiff filed the present Motion along with Objections
to Evidence and the Declaration of Jeffrey C. Bils.
The Plaintiff argues that the Court lacks subject matter
jurisdiction because the Defendants cannot demonstrate that the
amount in controversy exceeds $5 million as required by CAFA. The
Complaint does not allege an amount in controversy.
In their Notice of Removal, the Defendants allege that based on the
violations alleged by the Plaintiff, the amount in controversy is
estimated to be $7,272,433.77. Because the Plaintiff contests the
amount in controversy, the Defendants must provide evidence to
support their calculations. To satisfy that requirement, the
Defendants filed declarations from Andrew Cook, labor economist and
consultant; Monica Howard, senior counsel of Childtime Childcare,
Inc., a subsidiary of Defendant LCG; and David Szwarcsztejn,
counsel to the Defendants.
Based on the evidence discussed in those declarations, the
Defendants submit figures regarding the damages estimated for
certain of the Plaintiff's claims. The Defendants did not calculate
damages for all of the Plaintiff's claims because they contend that
the below claims alone exceed CAFA's amount in controversy
requirement: Unpaid Meal Premiums - $1,472,660.26; Waiting Time
Penalties - $3,997,572.50; Wage Statement Penalties - $1,802,200;
for a total of $7,272,433.77.
The Court notes that the Plaintiff does not provide any evidence to
rebut the Defendants' showing.
The Plaintiff filed evidentiary objections to the Defendants'
evidence, in particular to the Cook Declaration. She objects that
parts of the Cook Declaration violate the best evidence rule, fail
to authenticate, and are hearsay. She objects to certain parts of
the Cook Declaration based on Federal Rules of Evidence (FRE) 1002,
the best evidence rule. She contends that the actual contents of
the payroll database or certain of the Excel sheets referred to
should be provided rather than simply referred to in a declaration
in order to prove the amount of her wages and other figures relied
upon.
Judge Birotte notes that under FRE 1002, "payment may be proved
without producing the written receipt which was given. Earnings may
be proved without producing books of account in which they are
entered." Further, the Plaintiff has had an opportunity to claim
that the figures reported are incorrect, but has not done so.
Accordingly, Judge Birotte holds that this objection is overruled.
Judge Birotte also overrules the objections based on lack of
foundation, inadmissible opinion of lay witness, hearsay and
speculation. More significantly, and as to her remaining
evidentiary objections, Judge Birotte finds that the Plaintiff does
not argue that the Defendants' declarations and evidence would not
be admissible under any circumstances at a trial, and the material
does not present any insurmountable evidentiary obstacles.
Accordingly, the Court may consider this evidence; hence, the
Plaintiff's evidentiary objections are overruled.
The Plaintiff also asserts that the Defendants improperly rely on a
100 percent violation rate in estimating the waiting time
penalties.
To make their calculation of almost $4 million in waiting time
penalties, the Defendants assume that each of the terminated
putative class members did not receive "at least one" fully
compliant meal break during the tenure of their employment and were
not paid the meal premium pay in lieu thereof.
As an initial matter, Judge Birotte notes the Plaintiff does not
challenge the Defendants' evidence or methodology of calculating
the number of putative class members or their hourly wages.
Further, while the Plaintiff does allege that the failure to pay
wages owed upon termination or resignation occurred "at times," she
also alleges that this failure was an intentional policy.
The Court finds, among other things, that the Defendants'
assumption that each putative class member would be owed waiting
time penalties was reasonable. Accordingly, the Defendants have
properly supported their calculation of damages based on waiting
time penalties. The Court also finds that the Defendants' wage
statement estimate reasonable, and that meal period damages
estimates are not exaggerated.
In sum, the Court finds that the Defendants have demonstrated by a
preponderance of the evidence that the amount in controversy
exceeds $5 million.
A full-text copy of the Court's Order dated Oct. 6, 2022, is
available at https://tinyurl.com/ttt6w8dr from Leagle.com.
MDL 2873: Faces Stone Personal Injury Suit Over PFAS Exposure
-------------------------------------------------------------
JESSIE STONE and other similarly situated v. 3M COMPANY fka
MINNESOTA MINING & MANUFACTURING CO.; BUCKEYE FIRE EQUIPMENT CO.;
CHEMGUARD, INC.; CORTEVA, INC.; DUPONT DE NEMOURS, INC.; DYNAX
CORPORATION; E.I. DUPONT DE NEMOURS & CO.; KIDDE-FENWALL, INC.;
KIDDE FIRE FIGHTING, INC.; KIDDE PLC, INC.; NATIONAL FOAM, INC.;
THE CHEMOURS CO.; THE CHEMOURS COMPANY FC, LLC; TYCO FIRE PRODUCTS,
LP; UTC FIRE & SECURITY AMERICA'S, INC; and DOES 1 to 100,
INCLUSIVE; Case No. 2:22-cv-03520-RMG (D.S.C., Oct. 12, 2022) is a
class action against the Defendants for negligence, strict
liability, defective design, failure to warn, fraudulent
concealment, medical monitoring trust, and violations of the
Uniform Voidable Transactions Act.
This suit deals with Aqueous Film Forming Foams (AFFF) that were
designed, manufactured and sold as firefighting compounds. AFFF
compounding includes Perfluoro octane Sulfonate (commonly known as
PFOS), PerfluorooctanoicAcid (commonly known as PFOA), and/or other
Per-and Polyfluoroalkyl substances (together, with PFOS and PFOA,
commonly known as PFAS) which are manmade organofluorine compounds
(in this case commonly referred to as fluorinated
surfactants/fluorocarbon surfactants). The compounds are designed
to lower the surface tension of water so as to create a
firefighting foam to quell/smother (cutting off oxygen), for
example, jet fuel fires.
Plaintiff Stone, at all times relevant hereto, was the dependent
spouse of Westley Stone, U.S. Army, which was stationed at, inter
alia, Fort Ord, a military installation identified as being
contaminated through use of the toxic chemicals which are the
subject of this action. In about 2005, Stone was diagnosed with
thyroid disease/cancer and commenced on-going medical treatment
inclusive of surgical intervention thyroidectomy. As known by
Defendants, thyroid disease is a disease linked to PFAS
contamination, says the suit.
The Stone case has been consolidated in MDL No. 2873, In Re:
Aqueous Film-Forming Foams Products Liability Litigation. The case
is assigned to the Hon. Judge Richard Gergel.
3M Company, f/k/a Minnesota Mining and Manufacturing Co., is a
multinational conglomerate corporation and designer, marketer,
developer, manufacturer, distributor of firefighting equipment,
including those with AFFF. It is located at 3M Center, St. Paul,
Minnesota.[BN]
The Plaintiff is represented by:
Jeremy C. Shafer, Esq.
VETERAN LEGAL GROUP
700 12th Street N.W., Suite 700
Washington, D.C. 20005
Telephone: (888) 215-7834
E-mail: jshafer@bannerlegal.com
- and -
S. James Boumil, Esq.
BOUMIL LAW OFFICES
120 Fairmount Street
Lowell, MA, 01852
Telephone: (978) 458-0507
E-mail: sjboumil@boumil-law.com
- and -
Konstantine Kyros, Esq.
KYROS LAW
17 Miles Rd.
Hingham, MA 02043
Telephone: (800) 934-2921
E-mail: kon@kyroslaw.com
MDL 2873: PFAS Exposure Caused Cancer, Brown Suit Says
------------------------------------------------------
TOMMY BROWN, Plaintiff v. 3M COMPANY (f/k/a Minnesota Mining and
Manufacturing Company); AGC CHEMICALS AMERICAS INC.; AMEREX
CORPORATION; ARCHROMA USS. INC.; ARKEMA, INC.; BUCKEYE FIRE
EQUIPMENT COMPANY; CARRIER GLOBAL CORPORATION; CHEMDESIGN PRODUCTS,
INC.; CHEMGUARD, INC.; CHEMICALS, INC.; CHEMOURS COMPANY FC, LLC;
CHUBB FIRE, LTD; CLARIANT CORP.; CORTEVA, INC.; DEEPWATER
CHEMICALS, INC; DU PONT DE NEMOURS INC. (f/k/a DOWDUPONT INC.);
DYNAX CORPORATION; E.I. DU PONT DE NEMOURS AND COMPANY;
KIDDE-FENWAL, INC.; KIDDE PLC; NATION FORD CHEMICAL COMPANY;
NATIONAL FOAM, INC.,; THE CHEMOURS COMPANY; TYCO FIRE PRODUCTS LP,
as successor-in-interest to The Ansul Company; UNITED TECHNOLOGIES
CORPORATION; UTC FIRE & SECURITY AMERICAS CORPORATION, INC. (f/k/a
GE Interlogix, Inc.), Defendants, Case No. 2:22-cv-03529-RMG
(D.S.C., Oct. 12, 2022) is a class action brought by the Plaintiff
and those similarly situated individuals seeking damages for
personal injury resulting from exposure to aqueous film-forming
foams (AFFF) containing the toxic chemicals collectively known as
per and polyfluoroalkyl substances (PFAS).
According to the complaint, the Defendants have failed to use
reasonable, ordinary and appropriate care in the design,
manufacture, labeling, warning, instruction, training, selling,
marketing, and distribution of AFFF products containing synthetic,
toxic PFAS. The Defendants' AFFF products are dangerous to human
health because PFAS are highly toxic and carcinogenic chemicals and
can accumulate in the blood and body of exposed individuals. The
Defendants have also failed to warn public entities and firefighter
trainees who they knew would foreseeably come into contact with
their AFFF products. The Plaintiff used the Defendants'
PFAS-containing AFFF products in their intended manner, without
significant change in the products' condition due to inadequate
warning about the products' danger. He relied on the Defendants'
instructions as to the proper handling of the products, says the
suit.
The Plaintiff regularly used, and was thereby directly exposed to,
AFFF in training and to extinguish fires during his working career
as a military and/or civilian firefighter.
As a result of Defendants' conduct and the resulting contamination,
Plaintiff was diagnosed with prostate cancer by exposure to AFFF
containing PFAS, the suit alleges.
The Brown case has been consolidated in MDL No. 2873, In Re:
Aqueous Film-Forming Foams Products Liability Litigation. The case
is assigned to the Hon. Judge Richard Gergel.
3M Company, f/k/a Minnesota Mining and Manufacturing Co., is a
multinational conglomerate corporation and designer, marketer,
developer, manufacturer, distributor of firefighting equipment,
including those with AFFF. It is located at 3M Center, St. Paul,
Minnesota.[BN]
The Plaintiff is represented by:
Richard Zgoda, Jr., Esq.
Steven D. Gacovino, Esq.
GACOVINO, LAKE & ASSOCIATES, P.C.
270 West Main Street
Sayville, NY 11782
Telephone: (631) 600-0000
Facsimile: (631) 543-5450
- and -
Gregory A. Cade, Esq.
Gary A. Anderson, Esq.
Kevin B. McKie, Esq.
ENVIRONMENTAL LITIGATION GROUP, P.C.
2160 Highland Avenue
South Birmingham, AL 35205
Telephone: (205) 328-9200
Facsimile: (205) 328-9456
MDL 2913: CHAMPS Charter High School Sues Over E-Cigarette Crisis
-----------------------------------------------------------------
CHAMPS Charter High School, 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-06016 (N.D. Cal., Oct. 12, 2022) is a class action
against the Defendants for negligence, gross negligence, and
violations of the Public Nuisance Law and the Racketeer Influenced
and Corrupt Organizations Act.
According to the complaint, the Defendants used three tactics to
maintain market dominance in the cigarette industry: (1) product
design to maximize addiction, (2) mass deception, and (3) targeting
of youth. Defendants JUUL Labs and Adam Bowen designed an
e-cigarette device allegedly intended to create and sustain
addiction, but without the stigma associated with cigarettes and
promoted them to vulnerable young population. JUUL Labs and other
Defendants developed and implemented a marketing scheme to mislead
users into believing that JUUL products contained less nicotine
than they actually do and were healthy and safe. The Defendants
enticed newcomers to nicotine with kid-friendly flavors without
ensuring the flavoring additives were safe for inhalation. The
Defendants targeted the youth market by placing vaporized campaigns
on youth-oriented websites and media and using influencers and
affiliates to amplify their message to a teenage audience. The
Defendants have successfully caused more young people to start
using e-cigarettes, creating a youth e-cigarette epidemic and
public health crisis, says the suit.
The CHAMPS Charter High School 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.
CHAMPS Charter High School is a charter agency organized and
operating pursuant to the laws of the State of California.
JUUL Labs, Inc., formerly known as Pax Labs, Inc., is an American
electronic cigarette company, with its principal place of business
in San Francisco, California.[BN]
The Plaintiff is represented by:
James Frantz, Esq.
William B. Shinoff, Esq.
FRANTZ LAW GROUP, APLC
402 W. Broadway, Ste. 860
San Diego, CA 92101
Telephone: (619) 233-5945
Facsimile: (619) 525-7672
E-mail: jpf@frantzlawgroup.com
wshinoff@frantzlawgroup.com
MDL 2913: Detroit Enterprise Sues Over E-Cigarette Crisis
---------------------------------------------------------
Detroit Enterprise Academy, 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-05999 (N.D. Cal., Oct. 12, 2022) is a class action
against the Defendants for negligence, gross negligence, and
violations of the Public Nuisance Law and the Racketeer Influenced
and Corrupt Organizations Act.
According to the complaint, the Defendants used three tactics to
maintain market dominance in the cigarette industry: (1) product
design to maximize addiction, (2) mass deception, and (3) targeting
of youth. Defendants JUUL Labs and Adam Bowen designed an
e-cigarette device allegedly intended to create and sustain
addiction, but without the stigma associated with cigarettes and
promoted them to vulnerable young population. JUUL Labs and other
Defendants developed and implemented a marketing scheme to mislead
users into believing that JUUL products contained less nicotine
than they actually do and were healthy and safe. The Defendants
enticed newcomers to nicotine with kid-friendly flavors without
ensuring the flavoring additives were safe for inhalation. The
Defendants targeted the youth market by placing vaporized campaigns
on youth-oriented websites and media and using influencers and
affiliates to amplify their message to a teenage audience. The
Defendants have successfully caused more young people to start
using e-cigarettes, creating a youth e-cigarette epidemic and
public health crisis, says the suit.
The Detroit Enterprise Academy 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.
Detroit Enterprise Academy is a charter agency organized and
operating pursuant to the laws of the State of Michigan.
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:
James Frantz, Esq.
William B. Shinoff, Esq.
FRANTZ LAW GROUP, APLC
402 W. Broadway, Ste. 860
San Diego, CA 92101
Telephone: (619) 233-5945
Facsimile: (619) 525-7672
E-mail: jpf@frantzlawgroup.com
wshinoff@frantzlawgroup.com
MDL 2913: Escondido Union Says E-Cigarette Ads Target Youth Market
------------------------------------------------------------------
Escondido Union School District, 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-06015 (N.D. Cal., Oct. 12, 2022) is a class action
against the Defendants for negligence, gross negligence, and
violations of the Public Nuisance Law and the Racketeer Influenced
and Corrupt Organizations Act.
According to the complaint, the Defendants used three tactics to
maintain market dominance in the cigarette industry: (1) product
design to maximize addiction, (2) mass deception, and (3) targeting
of youth. Defendants JUUL Labs and Adam Bowen designed an
e-cigarette device allegedly intended to create and sustain
addiction, but without the stigma associated with cigarettes and
promoted them to vulnerable young population. JUUL Labs and other
Defendants developed and implemented a marketing scheme to mislead
users into believing that JUUL products contained less nicotine
than they actually do and were healthy and safe. The Defendants
enticed newcomers to nicotine with kid-friendly flavors without
ensuring the flavoring additives were safe for inhalation. The
Defendants targeted the youth market by placing vaporized campaigns
on youth-oriented websites and media and using influencers and
affiliates to amplify their message to a teenage audience. The
Defendants have successfully caused more young people to start
using e-cigarettes, creating a youth e-cigarette epidemic and
public health crisis, says the suit.
The Escondido Union School District case has been consolidated in
MDL No. 2913, IN RE: JUUL LABS, INC. MARKETING, SALES PRACTICES,
AND PRODUCTS LIABILITY LITIGATION. The case is assigned to the Hon.
Judge William H. Orrick.
Escondido Union School District is a local school district
organized and operating pursuant to the laws of the State of
California.
JUUL Labs, Inc., formerly known as Pax Labs, Inc., is an American
electronic cigarette company, with its principal place of business
in San Francisco, California.[BN]
The Plaintiff is represented by:
James Frantz, Esq.
William B. Shinoff, Esq.
FRANTZ LAW GROUP, APLC
402 W. Broadway, Ste. 860
San Diego, CA 92101
Telephone: (619) 233-5945
Facsimile: (619) 525-7672
E-mail: jpf@frantzlawgroup.com
wshinoff@frantzlawgroup.com
MDL 2913: Hinsdale Central Balks at Vaping Ads Targeting Youth
--------------------------------------------------------------
Hinsdale Central School District, 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-05951 (N.D. Cal., Oct. 11, 2022) is a
class action against the Defendants for negligence, gross
negligence, and violations of the Public Nuisance Law and the
Racketeer Influenced and Corrupt Organizations Act.
According to the complaint, the Defendants used three tactics to
maintain market dominance in the cigarette industry: (1) product
design to maximize addiction, (2) mass deception, and (3) targeting
of youth. Defendants JUUL Labs and Adam Bowen designed an
e-cigarette device allegedly intended to create and sustain
addiction, but without the stigma associated with cigarettes and
promoted them to vulnerable young population. JUUL Labs and other
Defendants developed and implemented a marketing scheme to mislead
users into believing that JUUL products contained less nicotine
than they actually do and were healthy and safe. The Defendants
enticed newcomers to nicotine with kid-friendly flavors without
ensuring the flavoring additives were safe for inhalation. The
Defendants targeted the youth market by placing vaporized campaigns
on youth-oriented websites and media and using influencers and
affiliates to amplify their message to a teenage audience. The
Defendants have successfully caused more young people to start
using e-cigarettes, creating a youth e-cigarette epidemic and
public health crisis, says the suit.
The Hinsdale Central School District case has been consolidated in
MDL No. 2913, IN RE: JUUL LABS, INC. MARKETING, SALES PRACTICES,
AND PRODUCTS LIABILITY LITIGATION. The case is assigned to the Hon.
Judge William H. Orrick.
Hinsdale Central School District is a local school district
organized and operating pursuant to the laws of the State of New
York.
JUUL Labs, Inc., formerly known as Pax Labs, Inc., is an American
electronic cigarette company, with its principal place of business
in San Francisco, California.[BN]
The Plaintiff is represented by:
James Frantz, Esq.
William B. Shinoff, Esq.
FRANTZ LAW GROUP, APLC
402 W. Broadway, Ste. 860
San Diego, CA 92101
Telephone: (619) 233-5945
Facsimile: (619) 525-7672
E-mail: jpf@frantzlawgroup.com
wshinoff@frantzlawgroup.com
MDL 2969: Four Claims Tossed From Covid-19 Business Insurance Suit
------------------------------------------------------------------
In the case, IN RE: ERIE COVID-19 BUSINESS INTERRUPTION PROTECTION
INSURANCE LITIGATION. This Document Relates to: All Cases, Master
Docket No. 1:21-mc-1, MDL No. 2969 (W.D. Pa.), Judge Mark R. Hornak
of the U.S. District Court for the Western District of Pennsylvania
grants Erie's Motion to Dismiss Counts One, Two, Three, and Four of
the Consolidated Amended Complaint.
The Plaintiffs in this multidistrict litigation all operate
distinct businesses -- from a retail clothing store in the
Shadyside neighborhood of Pittsburgh, Pennsylvania, to a
Ford/Lincoln car dealership in Cook County, Illinois, to a mussel
bar in the Nation's Capital, and more. Different as their
businesses may be, the Plaintiffs' legal claims are far less so --
as compared to each other and to claims asserted by business owners
in a multitude of similar cases nationwide.
Beginning in March 2020, the Plaintiffs began to suffer significant
financial consequences when they reduced their business operations
or temporarily closed their businesses altogether following the
outbreak of the global coronavirus pandemic (referred to herein as
COVID-19), which has been one of the most serious public health
events in history with devastating consequences across all aspects
of life, including the loss of life itself. They filed insurance
claims for their business losses with Defendant Erie Insurance
Group under the commercial property insurance policies they had
purchased from Erie. Erie denied those claims.
The resulting legal actions making up this litigation are 32 of
thousands of actions in state and federal courts in which property
owners with commercial insurance policies issued by Erie and other
insurance carriers have alleged that their property insurers
wrongfully denied COVID-19-related claims covered by their
policies. On Jan. 7, 2021, the Judicial Panel on Multidistrict
Litigation created and transferred to this Court this multidistrict
litigation ("MDL").
After the actions in this MDL were transferred to this Court, the
Court sought and received the parties' input on case administration
matters, including whether the parties suggested that the Court
resolve the fully briefed dispositive motions already pending in
some of the member cases or instead sought to file a Consolidated
Amended Complaint ("CAC").
All but one Plaintiff requested to move forward with a CAC, and the
Court allowed the Plaintiffs to file a CAC on behalf of all but
that one Plaintiff, Steven A. Udesky OD & Associates P.C., finding
good cause to do so based on briefing from all parties. The Court
then stayed without prejudice the action by Plaintiff Udesky
pending the Court's disposition of an anticipated dispositive
motion as to the CAC.
The Plaintiffs filed the CAC on Oct. 28, 2021. In it, they assert
nine claims for relief: (1) declaratory relief for the Plaintiffs
and the class members under Erie's Ultrapack Plus Policy (one of
the two Erie policies at issue in this case), specifically a
declaratory judgment that the Plaintiffs' asserted business
interruption losses are covered under that Policy (Count One); (2)
the same declaratory relief sought at Count One but as to the
Plaintiffs and class members under Erie's UltraFlex Policy (the
other of the two Erie polices at issue in this case) (Count Two);
(3) relief for breach of contract on behalf of the Plaintiffs and
class members under the Ultrapack Plus Policy (Count Three); (4)
relief for breach of contract on behalf of the Plaintiffs and class
members under the UltraFlex Policy (Count Four); (5) relief under
Illinois law for bad faith denial of insurance on behalf of
Illinois-based Plaintiffs and class members (Count Five); (6)
relief under New York General Business Law Section 349 on behalf of
New York-based Plaintiffs and class members (Count Six); (7) relief
under New York law for breach of the fiduciary duty of good faith
and fair dealing on behalf of New York-based Plaintiffs and class
members (Count Seven); (8) relief under West Virginia law for
breach of the duty of good faith and fair dealing on behalf of West
Virginia-based Plaintiffs and class members (Count Eight); and (9)
relief under Tennessee law for breach of the duty of good faith and
fair dealing on behalf of Tennessee-based Plaintiffs and class
members (Count Nine).
On Jan. 10, 2022, Erie filed the pending Motion to Dismiss Counts
One, Two, Three, and Four of the CAC pursuant to Federal Rule of
Civil Procedure 12(b)(6). Pursuant to a stipulation by the parties
that this Court approved, the Motion to Dismiss seeks dismissal
only of Counts One, Two, Three, and Four, and Erie's deadline to
respond to the remaining asserted Counts is currently stayed
without prejudice pending the Court's decision as to the Motion to
Dismiss Counts One through Four. Oral argument as to the Motion to
Dismiss occurred on May 16, 2022.
Having thoroughly reviewed those sources and considered the
parties' arguments, Judge Hornak concludes that it is self-evident
that the COVID-19 pandemic has had detrimental consequences to
people all over the world that cannot be overstated. However, it
can also be accurate that the Erie Policies to which the Plaintiffs
in this MDL were parties do not provide coverage for the additional
consequences that they assert that they as property and business
owners suffered as a result of the pandemic and the associated
government orders limiting how the properties could be used. He
concludes that the Plaintiffs have not plausibly pleaded that they
are entitled to coverage for their claimed losses under the Erie
Policies.
For these reasons, Judge Hornak grants Erie's Motion to Dismiss.
A full-text copy of the Court's Oct. 14, 2022 Order is available at
https://tinyurl.com/yc2hhv49 from Leagle.com.
MDL 3014: Van Ginkel Suit Transferred to W.D. Pa.
-------------------------------------------------
The case styled JEFFREY VAN GINKEL, Plaintiff, v. KONINKLIJKE
PHILIPS N.V.; PHILIPS NORTH AMERICA LLC; AND PHILIPS RS NORTH
AMERICA LLC, Defendants, Case No. 4:22-cv-332, was transferred from
the U.S. District Court for the Southern District of Iowa to the
U.S. District Court for the Western District of Pennsylvania on
Oct. 12, 2022.
The Clerk of Court for the Western District of Pennsylvania
assigned Case No. 2:22-cv-01435-JFC to the proceeding.
The Plaintiff seeks to recover damages based on, inter alia,
Philips' breach of express warranty, breach of implied warranties,
misrepresentations, and omissions, in connection with its
manufacture, marketing, and sales of Philips Respironics System I
Continuous Positive Airway Pressure containing polyester-based
polyurethane sound abatement foam.
The Van Ginkel case will be consolidated to the multi-district
action captioned "In Re: Philips Recalled CPAP, Bi-Level PAP and
Mechanical Ventilator Products Liability Litigation," MDL No.
3014.
Koninklijke Philips N.V. is a health technology company with its
principal executive offices in Amsterdam, The Netherlands.[BN]
MILOS HY: N.Y. Court Grants in Part Bid to Dismiss Mera Labor Suit
------------------------------------------------------------------
In the case, DANILO MERA, AMIDOU ABOUDOU, CARLOS COCOLOTL, ERICK
MARQUEZ, FIKRET USLU, HECTOR LOPEZ, MARIO SACRAMENTO, DAVID
MELENDEZ, WILSON HERAS, MARIJA NIKCEVIC, Plaintiffs v. MILOS HY,
INC., MILOS, INC., CONSTANTINOS SPILIADIS, GEORGE SPILIADIS, COSTAS
SPILIADIS, EVRIDIKI SPILIADIS, DAVID DANGOOR, IOANNA SOURIAS,
Defendants, Index No. 150880/2022, Motion Seq. No. 001 (N.Y. Sup.),
Judge Lori S. Sattler of the U.S. Supreme Court, New York County,
grants in part and denies in part the motion to dismiss filed by
Defendants Milos HY, Inc., and Milos, Inc.
The Plaintiffs commenced the action on behalf of themselves and all
non-exempt employees of two restaurants pursuant to Civil Practice
Law and Rules ("CPLR") Article 9, seeking, inter alia, unpaid
wages, damages, and reasonable counsel fees due to alleged
violations of the New York Labor Law. Seven of the 10 Plaintiffs
also allege a hostile work environment in violation of the New York
State Human Rights Law, Executive Law Section 296, et seq.
("NYSHRL") and the New York City Human Rights Law, New York City
Administrative Code Section 8-107, et seq. ("NYCHRL"), and seek
injunctive relief, back pay, damages, and counsel fees. After
filing, the Plaintiffs agreed to discontinue against the
individually named Defendants. The remaining Defendants are Milos
HY and Milos, Inc.
The Defendants operate two Greek restaurants in New York County
under the name Estiatorio Milos. According to the Complaint,
Defendant Milos HY operates a location in Hudson Yards, while
Defendant Milos, Inc. runs a restaurant at 125 West 55th Street.
The Plaintiffs are former servers, bussers, bartenders, or runners
who worked at the two restaurants at varying times between February
2019 and March 2020. According to the Complaint, all the Plaintiffs
worked at the Hudson Yards location, except that Plaintiff Aboudou
worked at the 55th Street location and Plaintiff Lopez trained at
the 55th Street location.
The Plaintiffs bring their Labor Law claims on behalf of themselves
and all non-exempt employees, "including but not limited to
bartenders, barbacks, servers, bussers, runners, cooks, line cooks,
porters, and dishwashers" employed by Defendants within six years
of the filing of the Complaint. They further assert that the
proposed class must include a subclass of tipped employees, of
which all named Plaintiffs are a part.
The Defendants move, pre-answer, to dismiss the Complaint in its
entirety pursuant to CPLR 3211(a)(1) and (7). They argue that the
Complaint's Labor Law claim contains "boilerplate," "kitchen sink"
allegations that are "nothing more than legal conclusions," and to
the extent they plead specific facts, those can be rebutted by
documentary evidence. They further assert that in the event the
Plaintiffs' Labor Law claims are not dismissed for failure to state
a cause of action, the Court should find that the Plaintiffs are
unable to pursue those claims on a class basis in accordance with
CPLR Section 901(b). With respect to the NYSHRL and NYCHRL causes
of action, they contend the Complaint fails to include any facts
suggesting the comments pled were repeated and continuous, and
"offers nothing more than stray remarks" insufficient to support a
claim.
The Complaint's first cause of action for violation of the Labor
Law is threefold. First, the Plaintiffs allege the Defendants
adopted what the Complaint refers to as a policy of "time shaving"
by requiring them to work through unpaid meal breaks. Second, they
allege the Defendants violated tipping regulations by requiring
tipped employees to perform non-tipped work for more than twenty
percent of their shifts, adopted a violative tip-pooling scheme,
and illegally retained tips. Third, they allege that because the
Defendants failed to properly compensate them, the tip credit
notices, wage statements, and tip record-keeping required by the
Labor Law were inaccurate.
Judge Sattler finds that the Defendants fail to present documentary
evidence conclusively establishing a defense to the Plaintiffs'
claims. She also finds that the Plaintiffs' allegations that they
"observed managers and supervisors improperly taking tips from the
tip pool" and including non-eligible tip employees in the tip pool
fits within a cognizable legal theory that violates the Labor Law.
The Plaintiffs also cannot maintain a cause of action based on
Section 195(3). Accordingly, the Defendants' motion to dismiss the
Plaintiffs' Labor Law claims is denied, except as to their claims
pursuant to Labor Law Sections 195(1) and 195(3) and 12 NYCRR
Section 146-2.17, which is granted.
The Defendants contend that in the event the Plaintiffs' Labor Law
claims are not dismissed for failure to state a cause of action,
the Court should find they are precluded by CPLR Section 901(b)
from pursuing these claims on behalf of a class because the
Complaint seeks liquidated damages.
While the Defendants contend the inclusion of liquidated damages
precludes the Plaintiffs' class action claims, that finding is
premature. Judge Sattler finds that once the Plaintiffs have had an
opportunity to conduct discovery and develop a factual record, they
may then decide whether to pursue class certification and waive
certain remedies or to pursue those remedies. The Defendants
therefore fail to conclusively show that there is no basis for
class action relief as a matter of law.
Finally, the Defendants additionally move to dismiss the
Complaint's second and third causes of action alleging a hostile
work environment on behalf of seven of the ten Plaintiffs, arguing
that the Complaint offers nothing more than stray remarks which are
not sufficiently sever or pervasive to support a claim at law.
Contrary to the Defendants' contention, Judge Sattler holds the
Plaintiffs' allegations are not conclusory or unparticularized. All
seven of the Plaintiffs asserting a hostile work environment claim
detailed specific comments made in the workplace during a 14-month
period. Accordingly, the Defendants' motion to dismiss the
Plaintiffs' second and third causes of action is denied.
For these reasons, Judge Sattler denies the Defendants' motion to
dismiss the First Cause of Action except as to the Plaintiff's
claims regarding improper tip credit notices, wage statements, and
tip record keeping which is granted. She also denies the
Defendants' motion to dismiss the Second and Third Causes of
Action.
The Defendants will file and serve via NYSCEF an Answer to the
Complaint within 20 days of service of a copy of the Decision and
Order with Notice of Entry.
This constitutes the Decision and Order of the Court.
A full-text copy of the Court's Oct. 12, 2022 Decision + Order is
available at https://tinyurl.com/2tmwaxpb from Leagle.com.
NATIONAL CREDIT: Distribution of $48.7K in Unclaimed Funds OK'd
---------------------------------------------------------------
Judge Morrison C. England, Jr., of the U.S. District Court for the
Eastern District of California grants the Plaintiff's Motion for Cy
Pres Distribution of Residual Settlement Funds in the lawsuit
captioned MIKE CORTES, on behalf of himself and all others
similarly situated, Plaintiff v. NATIONAL CREDIT ADJUSTERS, L.L.C.,
Defendant, Case No. 2:16-cv-00823-MCE-EFB (E.D. Cal.).
The motion seeks approval for the distribution of $48,689.41 in
residual settlement funds to the parties' proposed cy pres
recipient, Consumer Reports. In response, Defendant filed a
Statement of Non-Opposition.
The Plaintiff brought the class action lawsuit against the
Defendant for violations of the Telephone Consumer Protection Act
("TCPA"), the Fair Debt Collection Practices Act ("FDCPA"), and
California's Rosenthal Fair Debt Collection Practices Act,
California Civil Code Sections 1788, et seq. ("Rosenthal Act").
On Dec. 7, 2020, the Court granted final approval of the parties'
class action settlement, which established a $1.8 million
non-reversionary settlement fund for the payment of individual
class member awards, attorneys' fees and costs, administration
costs, and a service award to the class representative. Those funds
have since been distributed but there remains $48,689.41 in
unclaimed funds.
Presently before the Court is the Plaintiff's Motion for Cy Pres
Distribution of Residual Settlement Funds, which seeks approval for
the distribution of $48,689.41 in residual settlement funds to the
parties' proposed cy pres recipient, Consumer Reports. In response,
the Defendant filed a Statement of Non-Opposition.
The Court finds Consumer Reports to be an appropriate cy pres
beneficiary. Regarding the nature of the lawsuit, the Plaintiff
alleges that the Defendant made numerous calls to his cell phone
using an autodialer and/or artificial or prerecorded voice and that
these calls were attempts to collect a consumer debt that the
Plaintiff purportedly owed.
In selecting Consumer Reports as the cy pres beneficiary, the
Plaintiff cites its work "to protect consumers against invasions of
their privacy and peace by phone and other telecommunications," and
asserts that "Consumer Reports has worked to ensure compliance with
the TCPA since its enactment in 1991."
Not only is Consumer Reports' advocacy related to the Plaintiff's
lawsuit, but it demonstrates "a clear connection between the aims
of the statutes at issue in this litigation, including the TCPA,
FDCPA, and the Rosenthal Act" and shows that Consumer Reports, a
nationwide organization, represents the interests of the silent
class members, Judge England opines.
Accordingly, the Plaintiff's Motion for Cy Pres Distribution of
Residual Settlement Funds is granted. The Court approves Consumer
Reports as the cy pres recipient of the $48,689.42 in residual
settlement funds.
A full-text copy of the Court's Order dated Oct. 6, 2022, is
available at https://tinyurl.com/42abpuyd from Leagle.com.
NATROL LLC: Eighth Cir. Affirms Summary Judgment in Vitello Suit
----------------------------------------------------------------
In the lawsuit entitled Christine Vitello, on behalf of herself and
others similarly situated, Plaintiff-Appellant v. Natrol, LLC,
Defendant-Appellee, Case No. 21-3150 (8th Cir.), the United States
Court of Appeals for the Eighth Circuit affirms the grant of
summary judgment in favor of Natrol.
The primary issue on this appeal is whether a pharmaceutical
purchaser suffers an ascertainable loss caused by the seller's
misrepresentation of supporting clinical studies when the product's
packaging states that it does not provide the benefit the purchaser
is seeking. The district court answered this question in the
negative and, based on Christine Vitello's discovery admissions,
granted Natrol, LLC's motion for summary judgment dismissing
Vitello's claim under the Missouri Merchandising Practices Act
("MMPA") and unjust enrichment claim. Vitello appeals.
Ms. Vitello was diagnosed with attention-deficit disorder ("ADD")
in 2004 and was prescribed Adderall to treat symptoms that included
being forgetful, disorganized, scatterbrained and not being able to
retain anything. Apart from isolated pauses to avoid negative side
effects, Vitello used Adderall as prescribed for thirteen years,
noticing a pretty significant difference in memory and
concentration.
On June 22, 2017, Vitello saw Cognium, a "nutraceutical"
manufactured by Natrol, on sale in Arnold, Missouri. Cognium,
according to Natrol's advertising, improves memory and
concentration. Its packaging stated that Cognium is "powered by
Cera-Q, a natural protein from silkworm cocoons," and can improve
"Memory Recall Efficiency" by 90% when taken twice daily for four
weeks. The box claimed that nine clinical studies in adults,
seniors and children showed statistically significant improvements
in memory and cognition in 4 weeks or less when taken as directed.
The Cognium bottle also contained two disclaimers that frame the
issue on appeal: first, below "Clinically Proven to Improve Memory
and Concentration" statements, an FDA-mandated disclaimer for all
nutritional supplements: "These statements have not been evaluated
by the Food and Drug Administration. This product is not intended
to diagnose, treat, cure or prevent any disease."
Second, at the end of the "Supplement Facts" statements: "Consult
your healthcare professional prior to use if you have or suspect a
medical condition, are taking prescription drugs, or if you are
pregnant or lactating."
After reading the packaging, Vitello purchased a box of Cognium for
$19.97. Without consulting her doctor, Vitello quit Adderall and
started taking Cognium five to seven days later. She took Cognium
twice daily for sixty days. She noticed no positive effect in
memory or concentration, feeling "almost exactly the same on
Cognium as before I was on Adderall."
In June 2018, Vitello filed a putative class action complaint
against Natrol, seeking damages for herself and establishment of a
National Class and Missouri Consumer Subclass. She alleged that,
prior to her purchases of Cognium, two of the nine clinical studies
noted on its packaging had been retracted, including one for "data
fabrication and falsification"; that Natrol did not update its
packaging or inform consumers of the retractions; and that Vitello
would not have purchased the Cognium and sustained the loss had
Natrol disclosed in its box/packaging, bottle, and brochure that
two (2) of the nine (9) clinical studies had been retracted for
data manipulation and fraud/fabrication.
The Plaintiff asserted causes of action for violations of the MMPA
and unjust enrichment. After suit was filed, consistent with its
advertised money back guarantee, Natrol issued a refund check to
Vitello for the purchase price of the two bottles of Cognium she
bought. Vitello refused to cash the check.
In December 2018, the district court denied Natrol's Rule 12(b)(6)
motion to dismiss the Class Action Complaint for failure to state a
claim, concluding that Vitello alleged sufficient facts to support
the elements of her MMPA and unjust enrichment damage claims. The
court issued a case management order directing that discovery first
proceed on class certification issues.
After discovery including interrogatories, document production, and
depositions of Vitello and a Natrol representative, Vitello moved
for class certification. Natrol opposed and moved for summary
judgment dismissing Vitello's individual claims, submitting in
support a Statement of Uncontroverted Material Facts. Rather than
respond to the Statement, Vitello filed a motion seeking additional
discovery from two Natrol potential expert witnesses.
After considering both parties' motions and reviewing the completed
discovery, the district court concluded that one of Natrol's
summary judgment arguments posed a purely legal question -- whether
Vitello's admissions at her deposition that she took Cognium as a
substitute for Adderall without consulting her doctor precluded her
from proving an MMPA or unjust enrichment claim. The court denied
Vitello's Rule 56(d) motion because it sought additional discovery
not relevant to this issue of law and ordered her to respond to
Natrol's summary judgment motion.
After Vitello did so, the district court found her brief largely
unresponsive. The court granted summary judgment for Natrol on both
the MMPA and unjust enrichment claims, concluding that Vitello's
admissions that she purchased Cognium as a substitute for the
Adderall prescribed to treat her ADD, without consulting her
physician, was direct non-compliance with the disclaimers printed
on the Cognium packaging that precluded her from proving her MMPA
and unjust enrichment claims as a matter of law. With Vitello's
individual claims dismissed, the court determined the sole named
plaintiff could not represent the purported class and dismissed the
entire action.
On appeal, Vitello argues the district court erred in granting
summary judgment dismissing her MMPA and unjust enrichment claims.
Judge James B. Loken, writing for the Panel, notes that Vitello
purchased a product that expressly stated on the label it was "not
intended to" do what she stated she purchased it for, serve as a
substitute treatment for her prescription medication. Thus, for
Vitello, the actual value of the Cognium she purchased, and the
value of Cognium without Natrol's alleged marketing
misrepresentations, was the same -- as Vitello said in her
interrogatory answers, "zero."
Judge Loken holds that the benefit of the bargain rule does not
apply in this situation, so Vitello cannot prove that she suffered
ascertainable loss "as a result of" Natrol's unlawful practice.
Ms. Vitello's arguments to the contrary are unpersuasive, Judge
Loken opines. She argues that summary judgment was improper because
whether she would have purchased Cognium if she had known about the
two retracted studies is a triable issue of fact. Maybe so, Judge
Loken notes. But that fact would not establish MMPA ascertainable
loss.
Alternatively, Vitello relies on Missouri cases holding that
certain affirmative defenses cannot, as a matter of law, defeat an
MMPA claim. Assuming without deciding that Natrol's claims
regarding the nine clinical studies were unlawful acts under the
MMPA and that the packaging disclaimers would not lead a reasonable
consumer to question those fraudulent claims, Vitello has still
failed to show ascertainable loss resulting from the unlawful acts,
Judge Loken holds, among other things.
Ms. Vitello also appeals the district court's grant of summary
judgment dismissing her claim of unjust enrichment, an issue her
briefs barely address. To prove this claim, Vitello must show (1)
she conferred a benefit and enriched Natrol; (2) the enrichment was
at Vitello's expense; and (3) it would be unjust for Natrol to
retain the benefit.
Judge Loken notes that the third element is most significant.
Natrol received a benefit at Vitello's expense -- the wholesale
price of the Cognium she purchased. However, the district court
concluded, because Vitello purchased Cognium to replace Adderall
despite her awareness of the two disclaimers, her disadvantage is
unconnected to Natrol's alleged wrongful conduct and she cannot
establish that it was 'unjust' for Natrol to retain the purchase
price.
The Court of Appeals agrees. The Panel further notes that Vitello's
refusal of Natrol's check refunding the purchase price, the only
disadvantage Vitello claimed in her deposition testimony, might
foreclose this claim.
A full-text copy of the Court's Opinion dated Oct. 6, 2022, is
available at https://tinyurl.com/bdd8b7mm from Leagle.com.
NELNET INC: Court Grants Bid to Strike Johansson's Class Claims
---------------------------------------------------------------
Judge John M. Gerrard of the U.S. District Court for the District
of Nebraska grants the Defendants' motion to strike the Plaintiffs'
class action allegations in the lawsuit entitled ANDREW JOHANSSON,
et al., on behalf of themselves and the Class of Members described
herein, Plaintiffs v. NELNET, INC., a Nebraska Corporation, et al.,
Defendants, Case No. 20-CV-3069 (D. Neb.).
The matter is before the Court on the Plaintiffs' objection to the
Magistrate Judge's findings and recommendation, recommending that
the Court grant the Defendants' Motion to Strike the Plaintiffs'
class action allegations and Motion for Class Certification. The
Court has conducted a de novo review of the Magistrate Judge's
proposed findings and recommendation and will adopt them.
While the Magistrate Judge thoroughly addressed the relevant
issues, the Court briefly addresses the alternative modified class
definition that the Plaintiffs raised for the first time in their
objection to the Magistrate Judge's findings and recommendation.
The Court agrees with the Defendants that since this alternative
definition does not change the substance of the modified class
definition, it fails to adequately address the issues outlined by
the Magistrate Judge, as it still expands the size and scope of the
putative class and advances a theory of liability that is not
foreseeable based on the allegations in the operative complaint.
In other words, the Plaintiffs' alternative modified definition
does not bring the Court any closer to identifying a workable class
definition that is supported by the operative complaint and would
not prejudice the Defendants, Judge Gerrard opines.
Additionally, the Court agrees that the Plaintiffs have abandoned
the class allegations in their original complaint. The class
allegations in the Plaintiffs' complaint were centered on a theory
of liability that Nelnet improperly processed IDR plan renewal
applications that were properly and timely submitted. But the
Plaintiffs acknowledged that these allegations created "issues of
individualized proof." And since the Plaintiffs have indicated they
are unable to conceive of a viable class definition that tracks
these allegations and overcomes the issue of individualized proof,
the Court agrees these allegations have been abandoned.
Having concluded that the Plaintiffs' modified and alternative
modified class definitions offered in support of their Motion for
Class Certification are unsupported by the operative complaint, and
that the Plaintiffs have abandoned their original class allegations
outlined in the operative complaint, the Court will adopt the
Magistrate Judge's findings and recommendation.
Accordingly, Judge Gerrard rules that:
1. the Magistrate Judge's Findings and Recommendation are
adopted;
2. the Plaintiffs' objection is overruled; and
3. the Defendants' Motion to Strike the Plaintiffs' class
action allegations and Motion for Class Certification is
granted.
A full-text copy of the Court's Order dated Oct. 6, 2022, is
available at https://tinyurl.com/yjr6atns from Leagle.com.
NIBCO INC: Final Approval of Matson's Class Settlement Affirmed
---------------------------------------------------------------
In the case, Jose Garcia, Movant-Appellant v. David Matson; Barbara
Matson; Yolanda Garret, individually and on behalf of all others
similarly situated, Plaintiffs-Appellees v. NIBCO, Incorporated,
Defendant-Appellee, Case No. 21-51151 (5th Cir.), the U.S. Court of
Appeals for the Fifth Circuit affirms the district court's order
overruling Garcia's objections to the settlement and entering a
final order certifying the class and approving the settlement.
Mr. Garcia is a member of a class action filed by David Matson,
Barbara Matson, and Yolanda Garret on behalf of themselves and
those similarly situated. Garret and the Matsons alleged that NIBCO
manufactured defective products that were used in residential
plumbing and that its manufacturing defects caused or could cause
leaks and subsequent damage to class-member homes.
NIBCO manufactured and sold polyethylene tubes, fittings, and
clamps ("PEX products"), which were utilized nationally in the
plumbing systems of various new residential constructions. Some
homes that had been built with NIBCO PEX products later experienced
leaks, and in December 2013, homeowners in seven states—New
Jersey, Pennsylvania, Alabama, Georgia, Texas, Oklahoma, and
Tennessee -- brought a nationwide putative class action against
NIBCO for alleged manufacturing defects -- Cole v. NIBCO, Inc., No.
13-CV-07871, 2015 WL 2414740, at *1, *4 (D.N.J. May 20, 2015). On
April 11, 2019, that case ended with a settlement between NIBCO and
the Cole class members; however, that settlement excluded
homeowners in Texas, like the Matsons, and homeowners in Alabama,
like Garret.
As a result, on June 19, 2019, the Matsons brought their own
putative class action against NIBCO, alleging that NIBCO PEX
products were defective and "caused or will cause them and others
to suffer water damage to their residences." They sought to certify
a Rule 23(b)(3) class, and Garret later joined the Matsons as a
class representative.
The Plaintiffs reached a settlement with NIBCO, which the lower
court provisionally approved. During the notice period, Garcia
objected to the settlement, arguing that the prerequisites for
class certification under Rule 23(a) of the Federal Rules of Civil
Procedure could not be met because the affected individuals in the
class had interests adverse to those class members that were not
yet affected but could be in the future. He also argued that the
settlement was otherwise inadequate. The district court overruled
his objections and entered a final order certifying the class and
approving the settlement.
Mr. Garcia's first objection to the settlement was based upon an
argument that the class certification was improper because both
class representatives were "wet class members" (as was he), so they
could not, in his view, properly represent the "dry class members."
Class certification, among other things, requires "adequacy of
representation" as described in Fed.R. Civ. P. 23(a)(4).
Although Garcia's briefing discusses the merits of the adequacy
issue at length, the Fifth Circuit finds that he failed to appeal
the district court's ruling on standing. In fact, his opening brief
completely failed to mention standing. Accordingly, the Fifth
Circuit does not address the merits of the objection regarding the
adequacy of representation.
Mr. Garcia's objection to the settlement itself is properly before
the Fifth Circuit, as the standing ruling does not affect that
issue. As to this objection, he contends that the settlement fund
is inadequate. Rule 23(e) provides that to approve a settlement,
the district court must first find that the settlement "is fair,
reasonable, and adequate."
The Fifth Circuit holds that the district court here thoroughly
engaged with the Rule 23(e)(2). It sees no abuse of discretion in
the district court's well-reasoned analysis and highlights the
facts that best capture the fairness and adequacy of the
settlement.
For these reasons, the Fifth Circuit affirms.
A full-text copy of the Court's Oct. 12, 2022 Order is available at
https://tinyurl.com/mr3u22cm from Leagle.com.
OREGON: Dismissal of Mendoza v. DOT Over License Suspension Upheld
------------------------------------------------------------------
In the case, CINDY MENDOZA; GLORIA BERMUDEZ; REBECCA HEATH; KARL
WADE ROBERTS; CEKAIS TONI GANUELAS; LORI SPANO,
Plaintiffs-Appellants v. KRIS STRICKLER, in his official capacity
as Director of the Oregon Department of Transportation; AMY JOYCE,
in her official capacity as Administrator of the Driver and Motor
Vehicle Services Division, Oregon Department of Transportation,
Defendants-Appellees, Case No. 19-35506 (9th Cir.), the U.S. Court
of Appeals for the Ninth Circuit affirms the district court's
dismissal of the Second Amended Complaint for failure to state a
claim.
The Plaintiffs appeal the district court's dismissal of their
claims challenging the constitutionality of Oregon's since-repealed
system of suspending, without an inquiry into ability to pay, the
driver's licenses of persons who fail to pay the fines imposed on
them in connection with traffic violations.
Ms. Mendoza and others filed the putative class action in September
2018, alleging that Oregon's practice of automatically suspending
the driver's licenses of individuals who fail to pay their traffic
debts, without any inquiry into ability to pay, violates the Due
Process and Equal Protection Clauses of the Fourteenth Amendment.
The parties agree that the claims of many of the Plaintiffs are now
moot and that the only claims currently before the Court on appeal
are certain individual claims asserted by Mendoza in the operative
Second Amended Complaint.
At the time of the district court's decision, the Oregon Vehicle
Code provided that, in the event that a defendant convicted of a
traffic offense "fails or refuses to pay a fine imposed by the
court," the court could choose to "issue a notice of suspension" to
the Oregon Department of Transportation ("DOT") directing it,
through its Driver and Motor Vehicles Services Division ("DMV"),
"to implement procedures under ORS 809.416" to suspend the person's
driver's license.
At the time the operative complaint was filed, Mendoza was a
28-year-old who lived with her three children in subsidized housing
in Portland. She received a speeding ticket in Wasco County, Oregon
in June 2010, with a presumptive fine of $400. The amount of the
ensuing court judgment, with court costs and fees added, was
ultimately $812. After she failed to pay, the debt was referred to
a collection agency and her license was suspended. After five
years, she was able to pay off that debt and her license was
reinstated in April 2015. However, during the period that her
license was suspended, Mendoza received a ticket for driving with a
suspended license in August 2013, and that ultimately led to a
$2,020.40 judgment from the Beaverton Municipal Court for fines and
associated fees. After Mendoza failed to pay that judgment, her
license was again suspended in July 2015.
Ms. Mendoza was also charged with various traffic violations in the
Milwaukie Municipal Court, including driving with a suspended
license in January 2016, and these resulted in additional fines and
fees totaling $1,660.37. She also failed to appear at her
misdemeanor arraignment in January 2016, which arose out of a
traffic accident in Clackamas County. As a result of the ensuing
judgment against her, she owes an additional $7,602 in fines and
fees. As of the time of the filing of the operative complaint, her
license had not yet been suspended based on this further violation,
but the complaint alleges that that is expected to occur.
Ms. Mendoza alleges that she is too poor to make the payments
necessary to clear her various traffic debts and to reinstate her
driver's license. Although the Beaverton Municipal Court has a
payment-plan policy, it requires a "$50 minimum monthly payment,"
and it "would not have been feasible for her" to make such periodic
payments.
Based on these allegations, Mendoza alleges that the application of
Oregon's license-suspension scheme violated her equal protection
and due process rights in multiple respects. She seeks only
injunctive and declaratory relief, as well as attorney's fees,
against the director of the Oregon DOT and the Administrator of the
DMV, in their official capacities.
The Defendants moved to dismiss the operative complaint for lack of
jurisdiction and for failure to state a claim. The district court
granted the motion to dismiss for failure to state a claim under
Rule 12(b)(6). The Plaintiffs timely appealed.
The Defendants contend that Mendoza's claims are barred by the
sovereign immunity recognized in the Eleventh Amendment. They also
argue that Mendoza's claims are jurisdictionally barred under the
Rooker-Feldman doctrine, citing See Rooker v. Fidelity Tr. Co., 263
U.S. 413 (1923); D.C. Ct. of Appeals v. Feldman, 460 U.S. 462
(1983).
The Ninth Circuit rejects both contentions. It opines that under
the challenged provisions of Oregon law, it is the Defendants and
their subordinates who effectuated the suspension of Mendoza's
license, thereby confirming their relevant "enforcement authority"
under the challenged scheme. The Rooker-Feldman doctrine also
provides no bar to consideration of the merits of Mendoza's
claims.
As noted earlier, the only claims remaining before are Mendoza's
claims for injunctive and declaratory relief against the continued
suspension of her license based on the Defendants' prior
application of Section 809.210 to her. Reviewing the dismissal of
these claims de novo, the Ninth Circuit concludes that the district
court properly held that Mendoza failed to state a claim on which
relief may be granted.
Ms. Mendoza's first cause of action alleges that the Defendants'
suspension of her driver's license based on her failure to pay
traffic fines, "without first determining that she had the ability
to pay and had willfully refused to make a monetary payment,"
violates the due process and equal protection principles recognized
in Bearden v. Georgia, 461 U.S. 660 (1983), and Griffin v.
Illinois, 351 U.S. 12 (1956).
The Ninth Circuit disagrees. It says the principles applied in
these cases prohibit making certain wealth-based distinctions in
the context of (1) granting access to judicial procedures; and (2)
converting a non-carceral sentence into a term of imprisonment.
Because the case involves neither such context, Mendoza's reliance
on these cases fails.
Because Mendoza's first cause of action is thus governed by the
rational basis standard, the Ninth Circuit says it is duplicative
of her third cause of action, which specifically alleges that the
Defendants' suspension of her license for non-payment of traffic
fines rests on a wealth distinction that does not survive rational
basis review. It concludes that Mendoza failed to plead facts
establishing that her suspension lacks a rational basis, and the
district court therefore correctly dismissed her third cause of
action.
Ms. Mendoza's second cause of action alleges that the Defendants
violated the Equal Protection Clause by suspending her driver's
license for non-payment of her traffic debts while "not suspending
the driver's licenses of other indigent judgment debtors" with
non-traffic debt. She contends that the State's distinction between
traffic debt and non-traffic debt violates the equal protection
principles set forth in James v. Strange, 407 U.S. 128 (1972)
The Ninth Circuit opines that the district court correctly
dismissed this claim as well. The challenged Oregon statutes
address only the suspension of a driver's license in the event of
an unpaid traffic fine. The Oregon statutes thus lack the specific
"offending aspect" of the Kansas statute invalidated in James and
are "wholly free of the kind of discrimination" that led to the
invalidation of that statute.
Finally, in her fourth cause of action, Mendoza alleges that the
Defendants violated her procedural due process rights by suspending
her license without affording either a "pre-suspension hearing" or
a "post-suspension hearing" concerning her ability to pay her
traffic debt.
This claim was also correctly dismissed. The Ninth Circuit holds
that the procedural aspects of the Due Process Clause do not
require that the State afford a process for evaluating a factor
that, under the applicable substantive law, is not relevant to the
ultimate decision at issue.
For the foregoing reasons, the district court correctly dismissed
Mendoza's complaint for failure to state a claim on which relief
can be granted.
A full-text copy of the Court's Oct. 12, 2022 Opinion is available
at https://tinyurl.com/4fd3t5s9 from Leagle.com.
Kelsey M. Heilman (argued) -- kheilman@oregonlawcenter.org -- and
Emily Teplin Fox (argued) -- efox@oregonlawcenter.org -- Oregon Law
Center, Portland, Oregon, for the Plaintiffs-Appellants.
Peenesh H. Shah (argued), Assistant Attorney General; Denise G.
Fjordbeck, Staff Attorney; Beth Andrews, Assistant Attorney
General; Benjamin Gutman, Solicitor General; Ellen F. Rosenbaum,
Attorney General; Office of the Attorney General of Oregon, Salem,
Oregon, for the Defendants-Appellees.
Lisa Foster, Fines and Fees Justice Center, New York, New York, for
Amicus Curiae Fees Justice Center.
William R. Maurer -- wmaurer@ij.org -- Institute for Justice,
Seattle, Washington, for Amicus Curiae Institute for Justice.
Nicole S. Thompson and Sonja Good Stefani; Aliza B. Kaplan --
akaplan@lclark.edu -- Certified Law Student; Lewis & Clark Law
School, Portland, Oregon, for Amici Curiae Metropolitan Public
Defender Services Inc and Lewis & Clark Law School's Criminal
Justice Reform Clinic.
Claudia Wilner and Edward P. Krugman -- info@nclej.org -- National
Center for Law and Economic Justice, New York, New York; Tara
Mikkilineni, Civil Rights Corps, Washington, D.C.; for Amici Curiae
Members of the Free to Drive Coalition.
PERSONAL CAPITAL: Greenberg Sues Over Unsolicited Telemarketing
---------------------------------------------------------------
CHARLES GREENBERG, individually and on behalf of all others
similarly situated, Plaintiff v. PERSONAL CAPITAL CORPORATION,
Defendant, Case No. 4:22-cv-06003-KAW (N.D. Cal., Oct. 12, 2022) is
brought against the Defendant to secure redress for violations of
the Telephone Consumer Protection Act.
This case arises from the Defendant's transmission of prerecorded
messages to the cellular telephones of Plaintiff and other
consumers, promoting Defendant's services and goods. To gain an
advantage over its competitors and increase its revenue, the
Defendant engages in unsolicited telemarketing, with no regard for
consumers' privacy rights, says the suit.
Through this action, Plaintiff seeks injunctive relief to halt
Defendant's illegal conduct, which has resulted in the invasion of
privacy, harassment, aggravation, and disruption of the daily life
of thousands of individuals. The Plaintiff also seeks statutory
damages on behalf of himself and members of the Class, and any
other available legal or equitable remedies.
Personal Capital Corporation is an online financial advisor and
personal wealth management company that offers financial tools and
wealth management services.[BN]
The Plaintiff is represented by:
Scott Edelsberg, Esq.
EDELSBERG LAW, P.A.
1925 Century Park E #1700
Los Angeles, CA 90067
Telephone: (305) 975-3320
E-mail: scott@edelsberglaw.com
RANCHO MURIETA: Segismundo Suit Remanded to Sacramento Super. Court
-------------------------------------------------------------------
Judge Dale A. Drozd of the U.S. District Court for the Eastern
District of California remanded the case, MARIA SEGISMUNDO,
Plaintiff v. RANCHO MURIETA COUNTRY CLUB, Defendant, Case No.
2:21-cv-02272-DAD-JDP (E.D. Cal.), to the Superior Court of the
State of California for the County of Sacramento.
On Sept. 23, 2021, Segismundo filed a class action lawsuit against
Rancho in Sacramento County Superior Court.
In her complaint, the Plaintiff asserts ten causes of action under
state law: (1) unfair competition in violation of California
Business and Professions Code Section 17000, et seq. ("UCL"); (2)
failure to pay minimum wages in violation of California Labor Code
Sections 1197 and 1197.1; (3) failure to pay overtime wages in
violation of California Labor Code Section 510; (4) failure to
provide required meal periods in violation of California Labor Code
Sections 226.7 and 512 and the applicable Industrial Welfare
Commission ("IWC") wage order; (5) failure to provide required rest
periods in violation of California Labor Code Sections 226.7 and
512 and the applicable IWC wage order; (6) failure to provide
accurate itemized statements in violation of California Labor Code
Section 226; (7) failure to reimburse employees for required
expenses in violation of California Labor Code Section 2802; (8)
failure to provide wages when due in violation of California Labor
Code Sections 201 to 203; (9) failure to provide gratuities in
violation of California Labor Code Section 351; and (10)
constructive discharge and other adverse employment actions in
violation of public policy.
On Dec. 9, 2021, the Defendant removed the action to this federal
court pursuant to 28 U.S.C. Sections 1331 and 1441(a) on the
grounds that federal question jurisdiction exists because the
Plaintiff's claims are preempted under Section 301 of the Labor
Management Rights Act ("LMRA"), 29 U.S.C. Section 185.
On Jan. 6, 2022, the Plaintiff filed the pending motion to remand,
asserting that none of her claims are preempted. The Defendant
filed an opposition on Feb. 15, 2022, and the Plaintiff filed her
reply thereto on Feb. 22, 2022.
In its notice of removal, the Defendant asserts that this Court has
federal question jurisdiction over the action because adjudication
of the Plaintiff's claims requires interpretation of the terms of
the collective bargaining agreements ("CBAs") between Rancho and
certain unions, and, therefore, her claims are preempted by Section
301 of the LMRA. In the pending motion to remand, the Plaintiff
argues that none of her claims are preempted because those claims
do not rely on the CBAs or depend on interpretation of the CBAs'
provisions.
The central question is whether, as the Defendant argues, the
Plaintiff's claims are preempted by federal law.
Judge Drozd explains that the determination of whether a claim is
preempted by Section 301 is made by way of a two-step inquiry,
citing Burnside v. Kiewit Pac. Corp., 491 F.3d 1053, 1059 (9th Cir.
2007). The first question is "whether the asserted cause of action
involves a right conferred upon an employee by virtue of state
law," or if instead the right is conferred by a CBA. Under the
second step, there will only be preemption if there is an active
dispute concerning the meaning of the agreement's terms.
Judge Drozd concludes that the Defendant has failed to show by a
preponderance of the evidence that any of the Plaintiff's claims
trigger preemption under Burnside. He finds that the Plaintiff's
claims are not dependent on an interpretation of the relevant CBAs.
Federal jurisdiction must be rejected when there is any doubt as to
the right of removal. Such doubt exists in the case. Accordingly,
the case must be remanded to the Sacramento County Superior Court.
For these reasons, the Plaintiff's motion to remand is granted and
the action is remanded to the Sacramento County Superior Court due
to the Court's lack of subject matter jurisdiction. The Clerk of
the Court is directed to close the case.
A full-text copy of the Court's Oct. 14, 2022 Order is available at
https://tinyurl.com/y7dsy3pr from Leagle.com.
ROCKHILL INSURANCE: Partly Wins Summary Judgment Bid in Savers Suit
-------------------------------------------------------------------
In the case, SAVERS PROPERTY & CASUALTY INSURANCE COMPANY,
Plaintiff v. ROCKHILL INSURANCE COMPANY, et al., Defendants.
CLARK-FLOYD LANDFILL, LLC., Counter Claimant v. SAVERS PROPERTY &
CASUALTY INSURANCE COMPANY, Counter Defendant. CLARK-FLOYD
LANDFILL, LLC., Cross Claimant v. NAUTILUS INSURANCE COMPANY,
ROCKHILL INSURANCE COMPANY, Cross Defendants, Case No.
1:21-cv-01802-MJD-TWP (S.D. Ind.), Magistrate Judge Mark J.
Dinsmore of the U.S. District Court for the Southern District of
Indiana, Indianapolis Division, enters an order:
a. granting Savers' Motion for Judgment on the Pleadings;
b. granting in part and denying in part Rockhill's Motion for
Summary Judgment;
c. granting in part and denying in part CFL's Motion for
Partial Summary Judgment; and
d. granting Nautilus' Motion to Dismiss.
Clark County, Floyd County, and CFL entered a Franchise and License
agreement, effective Jan. 1, 2004, with regard to a landfill owned
by the Counties, in which CFL agreed to. In connection with CFL's
operation of the Landfill, the Indiana Department of Environmental
Management has issued operating permits to CFL, including a solid
waste permit that governs how CFL operates under applicable solid
waste laws and rules as well as an air permit. Pursuant to the
Franchise Agreement and Indiana law, CFL had a certified operator
as well as a V.P. of Environmental Affairs involved in its
operation.
On Aug. 12, 2016, residents within a three-mile radius of the
Landfill (the "Underlying Plaintiffs") filed a class action lawsuit
for injunctive relief and damages. The Underlying Plaintiffs filed
a first amended complaint on Dec. 20, 2016, naming CFL as a
defendant.
The Underlying Plaintiffs allege that -- because of CFL's negligent
and/or intentional and improper construction, maintenance, and/or
operation of the Landfill -- their properties, including their
neighborhoods, residences, and yards, have been and continue to be
invaded by noxious odors, pollutants, and air contaminants
originating from the Landfill.
As a result of the alleged invasion of their properties by
pollutants, noxious odors, and air contaminants, they have
allegedly suffered injuries, including exposure to the pollutants,
horrific odors, and air contaminants themselves, as well as loss of
use and enjoyment of their properties. They assert causes of action
for public and private nuisance as well as negligence/gross
negligence and seek compensatory and punitive damages from CFL in
excess of $5 million.
CFL purchased policies from four different insurers during the
relevant period covered by the Underlying Lawsuit, three of which
are parties to this suit. Savers sold CFL two years of coverage
under a Commercial General Liability ("CGL") and Pollution
Liability Coverage policy, effective Jan. 1, 2012, to Jan. 1, 2014.
Rockhill sold CFL three years of coverage under primary and excess
CGL and Site-Specific Pollution Liability ("SSPL") policies,
effective Jan. 1, 2010, to Jan. 1, 2012, and Jan. 1, 2014, to Jan.
1, 2015. Lastly, Nautilus sold CFL one year of coverage under CGL
and SSPL policies, effective Jan. 1, 2016, to Jan. 1, 2017.
The matter is before the Court on Savers' Motion for Judgment on
the Pleadings, Rockhill's Motion for Summary Judgment, CFL's Motion
for Partial Summary Judgment, and Nautilus's Motion to Dismiss. Two
main issues are raised by all of the pending motions: (1) whether
Rockhill has a duty to defend CFL in the Underlying Lawsuit, and
(2) whether all three insurers have a duty to indemnify.
Nautilus brings its motion to dismiss pursuant to Federal Rule of
Civil Procedure 12(b)(1), arguing that the Court must dismiss as
unripe CFL's claim against it for a declaratory judgment regarding
its duty to indemnify CFL in the Underlying Lawsuit.
Judge Dinsmore finds that the Underlying Lawsuit is still pending,
with a jury trial set for July 25, 2023. The insurers' duties to
indemnify will depend significantly upon the facts and outcome of
the Underlying Lawsuit, and even if all the claims are covered by
the policies, it is possible that not all of the damages will be,
as two of the insurers have clear and unambiguous punitive damages
exclusions. In such instances, the proper course of action is to
dismiss the claim without prejudice.
Accordingly, Nautilus' motion to dismiss is granted, and CFL's
claim seeking declaratory judgment that Nautilus has a duty to
indemnify CFL is dismissed without prejudice. For the same reason,
CFL's cross-claim against Rockhill and counterclaim against Savers
seeking declaratory judgment that Savers and Rockhill have a duty
to indemnify CFL are also dismissed without prejudice. In light of
this ruling, CFL's motion for partial summary judgment and
Rockhill's motion for summary judgment are both denied as to the
duty to indemnify issue.
Rockhill moves for summary judgment pursuant to Federal Rule of
Civil Procedure 56, requesting, in relevant part, that the Court
enters declaratory judgment that Rockhill does not have a duty to
defend CFL in the Underlying Action. Savers' motion for judgment on
the pleadings and CFL's motion for partial summary judgment, both
request a declaratory judgment that Rockhill does have a duty to
defend CFL.
Judge Dinsmore holds that the duty CFL owes to the Underlying
Plaintiffs is not a contractually assumed duty. This duty exists
outside of and in spite of the contract between CFL and the
Counties. Whether the contract between the Counties and CFL was
breached is irrelevant to the Underlying Plaintiffs -- the duty not
to create a nuisance does not arise from the contract, nor does it
exist purely because of the contract. Thus, the Underlying Lawsuit
is not alleging a contractually assumed business risk, but an
occurrence.
In addition, because the liability for the odors allegedly stems
from any number of errors or combination thereof in constructing,
maintaining, and/or operating the landfill, Rockhill has a duty to
defend CFL in the Underlying Lawsuit.
Accordingly, Rockhill's motion for summary judgment is denied with
regard to the duty to defend. For the same reasons, Savers' motion
for judgment on the pleadings and CFL's motion for summary judgment
are granted as to their requests for declaratory judgment that
Rockhill has a duty to defend CFL. Savers' motion is also granted
as to its request for declaratory judgment that Rockhill has a duty
to reimburse Savers for Rockhill's pro rata share of defense costs
Savers has paid to date in the Underlying Litigation.
In addition to seeking declaratory judgment that Rockhill has a
duty to defend, CFL seeks several additional types of relief in its
motion for partial summary judgment.
First, Judge Dinsmore finds that at no time during the pendency of
this lawsuit has there been a controversy between CFL and Savers or
CFL and Nautilus regarding those insurers' duty to defend CFL. Both
have recognized their contractual duty to defend CFL and have
undertaken that duty under a reservation of rights. Accordingly,
CFL's motion for summary judgment is denied as to its request for
declaratory judgment that Savers and Nautilus have a duty to defend
CFL, and those claims are dismissed without prejudice for lack of
subject matter jurisdiction.
Second, because CFL has not demonstrated that it is entitled to
summary judgment on the issue of prejudgment interest, its motion
for partial summary judgment is denied as to that issue.
Finally, CFL seeks a declaration that "CFL can, from September 2020
onward, recover from Nautilus and Rockhill the difference between
its counsel's reasonable market rates and the reduced rates paid by
Savers" per a negotiated agreement between CFL and Savers. Judge
Dinsmore finds that Nautilus has accepted its duty to defend CFL,
and there is simply no indication that it has interpreted that duty
as being limited by CFL's agreement with Savers. Accordingly, CFL
is not entitled to this requested relief, and CFL's motion for
partial summary judgment is denied as to this issue.
Because not all of the issues raised in the pleadings were resolved
by the motions addressed, Judge Dinsmore will not enter judgment at
this time. Based on his ruling, the following are included in the
Court's final judgment when it is entered:
1. Judgment is entered in favor of Savers on Count I of its
Second Amended Complaint against Rockhill; the Court will enter a
declaration that Rockhill has a duty to defend CFL in the
Underlying Litigation and that Rockhill has a duty to reimburse
Savers for Rockhill's pro rata share of defense costs Savers has
paid to date in the Underlying Litigation;
2. Judgment is entered in favor of CFL on its claim against
Rockhill for a declaration that Rockhill has a duty to defend CFL
in the Underlying Litigation;
3. CFL's counterclaim for declaratory judgment that Savers has
a duty to indemnify it in the Underlying Litigation is dismissed
without prejudice as premature;
4. CFL's counterclaim against Savers seeking a declaration
that Savers has a duty to defend CFL in the Underlying Litigation
is dismissed without prejudice for lack of subject matter
jurisdiction because there is no case or controversy as to this
claim;
5. Count I of CFL's crossclaims against Nautilus and Rockhill
for breach of contract seeking payment of outstanding defense costs
is dismissed without prejudice for lack of subject matter
jurisdiction because it is moot;
6. CFL's request in Count II of its crossclaims seeking
declaratory judgment that Rockhill and Nautilus have a duty to
indemnify it in the Underlying Litigation is dismissed without
prejudice as premature; and
7. CFL's request in Count II of its crossclaim against
Nautilus seeking a declaration that Nautilus has a duty to defend
CFL in the Underlying Litigation is dismissed without prejudice for
lack of subject matter jurisdiction because there is no case or
controversy as to this claim.
Judge Dinsmore believes that the only other outstanding issues in
the case are (1) CFL's claims for prejudgment interest against
Rockhill and Nautilus; and (2) Savers' claim for a money judgment
against Rockhill for Rockhill's share of defense costs paid by
Savers to date (Count II of Savers' Second Amended Complaint),
including a calculation of Rockhill's pro rata share.
The case was set for a telephonic status conference on Oct. 26,
2022, at 9:30 a.m. (ET) to discuss how those issues will be
resolved. Counsel will attend the status conference by calling the
designated telephone number, to be provided by the Court via email
generated by the Court's ECF system. If any party believes there
are any additional issues to be resolved before final judgment is
entered, a notice was to be filed by Oct. 24, 2022, identifying
those issues and the pleading in which each such issue is raised.
A full-text copy of the Court's Oct. 14, 2022 Order is available at
https://tinyurl.com/52zjenx from Leagle.com.
SERVICE KING: Hassanpoor's FLSA Collective OT Wage Claim Dismissed
------------------------------------------------------------------
In the lawsuit titled Mohammad Hassanpoor, Plaintiff v. Service
King Paint & Body, LLC, Defendant, Case No. 2:22-cv-00917-KJM-JDP
(E.D. Cal.), Chief District Judge Kimberly J. Mueller of the U.S.
District Court for the Eastern District of California:
(1) grants the Defendant's motion to dismiss the Plaintiff's
FLSA collective overtime wage claim, with leave to amend;
(2) denies the Defendant's motion to dismiss the Plaintiff's
individual overtime and minimum wage claims;
(3) denies as moot the Defendant's motions to strike and to
stay the Plaintiff's collective overtime wage claim;
(4) rules that the Plaintiff may file any amended complaint
within 14 days of this Order; and
(5) rules that the Order resolves ECF No. 15.
Service King moves to dismiss the Plaintiff's individual overtime
and minimum wage claims under the Fair Labor Standards Act (FLSA).
It also moves to dismiss, strike, and stay Hassanpoor's FLSA
collective overtime wage claim.
Mr. Hassanpoor was a body technician, a non-exempt, hourly
employee, for Service King in California, where he repaired
vehicles after motor vehicle collisions. He alleges Service King
has a nationwide practice of not paying overtime wages to its body
technicians. For example, for one workweek in March 2022, he worked
approximately 98 hours, but Service King paid him for only 31.39
hours without any overtime compensation. When he complained about
his pay, Service King changed his name in the company record to
"Good Animal" and fired him.
Mr. Hassanpoor brings three FLSA claims against Service King: (1)
failure to pay overtime wages, (2) failure to pay minimum wages,
and (3) retaliation. He styles his overtime wage claim as a FLSA
collective action, without defining the collective's members.
A related wage-and-hour class action against Service King is
proceeding in the U.S. District Court for the Northern District of
California (Moniz v. Service King, Inc. No. 5:18-cv-07372-EJD (N.D.
Cal.).
Service King now moves to dismiss Hassanpoor's individual overtime
and minimum wage claims, and moves to dismiss, strike, and stay his
collective overtime wage claim pending resolution of the related
case.
Judge Mueller holds that Hassanpoor has demonstrated there was at
least one workweek where he was not paid overtime or minimum wages.
He alleges he worked 98 hours in one workweek but was paid for only
31.39 hours, none of which was compensated as overtime.
Although Service King argues Hassanpoor's allegations are
implausible because they are inconsistent with the company's
payment scheme, Judge Mueller says this is a factual question
better left for summary judgment. At the motion to dismiss stage,
the Court assumes Hassanpoor's factual allegations to be true.
Construing his allegations "in the light most favorable" to him,
Judge Mueller finds he has pled plausible individual overtime and
minimum wage claims.
Thus, the Court denies Service King's motion to dismiss
Hassanpoor's individual overtime and minimum wage claims.
However, Judge Mueller finds Hassanpoor has not adequately pled his
collective overtime wage claim because his complaint does not
define his collective. Without a proposed definition, Service King
can only speculate regarding the scope and nature of Hassanpoor's
collective action and who might comprise the collective; thus, the
complaint does not give the Defendant fair notice of what the claim
is and the grounds upon which it rests.
Judge Mueller notes this issue is apparent from the online reviews
Hassanpoor quotes in his opposition to argue in support of
maintaining his collective claim. The reviews are from employees
with vastly different job titles, including "Customer Experience
Representative," "Repair Planner," "Service Writer," "Collision
Repair Technician," "Collision General Manager," and "Retail
Planner."
Without a proposed definition pled in the complaint, moreover,
Hassanpoor's collective claim cannot proceed to the preliminary
certification stage, Judge Mueller holds.
The Court grants Defendant's motion to dismiss Hassanpoor's
collective claim with leave to amend. Because the Court dismisses
Hassanpoor's collective claim, Service King's motions to strike and
to stay the collective claim are denied as moot.
A full-text copy of the Court's Order dated Oct. 6, 2022, is
available at https://tinyurl.com/4v9yf6kh from Leagle.com.
ST. LOUIS, MO: District Court Denies Bid to Stay Williams Suit
--------------------------------------------------------------
The U.S. District Court for the Eastern District of Missouri,
Eastern Division, denies the Defendants' motion to stay the lawsuit
titled RICARDO WILLIAMS, Plaintiff v. CITY OF ST. LOUIS, et al.,
Defendants, Case No. 4:21 CV 140 CDP (E.D. Mo.).
As the Plaintiff intends to opt out of the Cody class action (Cody
v. City of St. Louis, 4: 17 CV 2707 AGF) and proceed on his
individual claims and the Defendants make no other compelling
arguments in favor of granting a stay, the Court denies the
Defendants' motion to stay.
A full-text copy of the Court's Memorandum and Order dated Oct. 6,
2022, is available at https://tinyurl.com/3uuwwbap from
Leagle.com.
TARGET CORP: Bid to Remand Dedloff Suit to Circuit Court Denied
---------------------------------------------------------------
Judge John A. Ross of the U.S. District Court for the Eastern
District of Missouri, Eastern Division, denies the Plaintiff's
Motion to Remand in the lawsuit titled KATTIE DEDLOFF, individually
and on behalf of all others similarly situated, Plaintiff v. TARGET
CORPORATION, Defendant, Case No. 4:22-CV-00868 JAR (E.D. Mo.).
The Plaintiff originally filed the putative class action in the
Circuit Court of St. Charles County, Missouri, arising from the
purchase of over-the-counter cough and flu medication marketed and
sold by Defendant Target Corporation. She alleges Target has
misrepresented its cough and flu medications and misled consumers
by marketing them as "non-drowsy" when in fact they contain
dextromethorphan hydrobromide ("DXM"), a substance scientifically
proven to cause drowsiness.
The Plaintiff brings claims for breach of warranty (Count I);
implied contract (Count II); unjust enrichment (Count III); and
violation of the Missouri Merchandising Practices Act ("MMPA"). In
her petition, the Plaintiff requests compensatory damages,
restitution, attorneys' fees, and injunctive relief on behalf of a
purported class of "thousands" of Missouri citizens, who purchased
the products at issue, over a five-year period in Missouri.
Ms. Dedloff also included a stipulation that states that although
aggregate damages derived from a percentage of the Product will not
exceed $5 million, nonetheless she, on behalf of herself and the
purported class, disclaims and/or abandons any and all recovery
exceeding $5 million. The Plaintiff and her counsel, Daniel
Harvath, Esq., further stipulate that the Plaintiffs will not
recover, and completely disclaim recovery of, any combination of
damages and/or attorneys' fees related to this Action meeting or
exceeding $5 million. If Ms. Dedloff is replaced as named
representative in this Action, the Plaintiffs' counsel stipulates
and affirms and covenants that any and all potential class
representatives for this Action must similarly stipulate and affirm
the limitation of recovery.
Target timely removed the case to this Court based on diversity
jurisdiction, and moved to dismiss the case.
The Plaintiff filed a motion to remand the case asserting that her
stipulation to not recover more than $5 million makes it "legally
impossible" for the amount in controversy to exceed $5 million such
that the Court lacks jurisdiction under CAFA.
Target opposes remand, arguing inter alia, that the Plaintiff's
"stipulation" has no effect because a plaintiff, who files a
proposed class action, cannot legally bind members of the proposed
class before the class is certified and citing Standard Fire Ins.
Co. v. Knowles, 568 U.S. 588 (2013). The Plaintiff replies that
even though the proposed class is not legally bound before
certification, her stipulation guarantees that any future class
will be bound upon certification, or such certification cannot
occur. She further argues the action does not satisfy the requisite
amount in controversy.
In support of remand, the Plaintiff relies on Rolwing v. Nestle
Holdings, Inc., 666 F.3d 1069, 1072 (8th Cir. 2012), which held
that a damages stipulation could preclude removal under CAFA, to
argue that her in-petition stipulation disclaiming -- on behalf of
herself and the purported class -- any damages exceeding $5 million
prevents removal. Two courts in this District recently rejected
this exact argument based on the Supreme Court's decision in
Standard Fire Ins. Co. v. Knowles, 568 U.S. 588, 596 (2013),
abrogating Rolwing and holding that a pre-certification damages
stipulation can tie a plaintiff's own hands, but it does not
resolve the amount-in-controversy question for purposes of
determining whether CAFA jurisdiction exists.
The Court likewise concludes that the Plaintiff's reliance on
Rolwing is misplaced as it is no longer good law.
In any event, the Plaintiff contends that her full stipulation
binding "any and all potential class representatives for this
Action" addresses the concerns in Standard Fire about the
contingent quality of a pre-certification stipulation. Again, the
Court has found this attempted work-around of Standard Fire
unavailing.
Lastly, the Plaintiff argues that Target has not met its burden to
show the amount in controversy exceeds $5 million. Target has
submitted an affidavit from Tinzing Artmann, its Lead Litigation
Paralegal. Artmann asserts that based on his review of sales data
for all Target branded products containing DMH and labeled
"non-drowsy," the total Missouri sales for the products at issue
exceed $1 million. Target concedes that this alone does not justify
removal but argues that potential attorneys' fees must also be
considered in the amount-in-controversy calculation. The Plaintiff
does not respond to Target's argument regarding attorneys' fees.
When considering total sales together with the Plaintiff's request
for attorney's fees and injunctive relief, the Court finds Target
has carried its burden to show that CAFA's amount in controversy is
met. Thus, the case belongs in federal court unless the Plaintiff
can establish to a legal certainty that the claim is for less than
the requisite amount. Even if it is "highly improbable" that the
Plaintiff will recover more than $5 million, the legally impossible
standard has not been met, Judge Ross points out.
Because Target has shown by a preponderance of the evidence that
the amount in controversy exceeds CAFA's jurisdictional minimum,
the Court denies the Plaintiff's motion to remand.
Pursuant to the parties' joint stipulation, no later than Nov. 4,
2022, the Plaintiff will file her response to the Defendant's
pending Motion to Dismiss.
A full-text copy of the Court's Memorandum and Order dated Oct. 6,
2022, is available at https://tinyurl.com/2asyhwbf from
Leagle.com.
UNITED STATES: Healthcare Providers Class Certified in Neese Suit
-----------------------------------------------------------------
In the case, SUSAN NEESE, M.D., et al., Plaintiffs v. XAVIER
BECERRA, in his official capacity as Secretary of the United States
Department of Health and Human Services, et al., Defendants, Case
No. 2:21-CV-163-Z (N.D. Tex.), Judge Matthew J. Kacsmaryk of the
U.S. District Court for the Northern District of Texas, Amarillo
Division, grants the Plaintiffs' Motion to Certify Class.
Section 1557 of the Affordable Care Act provides "an individual
will not, on the grounds prohibited under" any of four civil rights
statutes, "be excluded from participation in, be denied the
benefits of, or be subjected to discrimination under, any health
program or activity, any part of which is receiving Federal
financial assistance, or under any program or activity that is
administered by an Executive Agency or any entity established under
this title (or amendments)."
On May 10, 2021, Becerra announced the Department of Health and
Human Services ("HHS") will "interpret and enforce" Section 1557 to
prohibit: (1) "discrimination on the basis of sexual orientation";
and (2) "discrimination on the basis of gender identity."
Plaintiffs Susan Neese, M.D., and James Hurly, M.D., allege
Becerra's announced interpretation of Section 1557 inflicts
immediate, present-day injury on them. This is because they "can
only wonder whether they or their practices will lose federal money
if they ever refuse to provide gender-affirming care to a
transgender patient."
The Plaintiffs allege Becerra's notification is "not in accordance
with law" under Section 706(2)(A) of the Administrative Procedure
Act because it wrongfully equates discrimination on account of
sexual orientation and gender identity with "sex discrimination."
They also seek declaratory relief under 28 U.S.C. Section 2201 and
ask the Court to declare Section 1557 does not prohibit
discrimination based on sexual orientation and gender identity.
The Plaintiffs now move the Court to certify a class of all
healthcare providers subject to Section 1557 of the Affordable Care
Act under Federal Rule of Civil Procedure 23(b)(2).
Judge Kacsmaryk holds that the named Plaintiffs have standing. To
begin, she says the Plaintiffs' injuries are "fairly traceable" to
this action -- even if they are not injured by every single word in
the notification. Second, a notice of proposed rulemaking does not
withdraw or nullify the earlier agency "action" that Plaintiffs
challenge. Third, a notice of proposed rulemaking does not withdraw
or nullify the earlier agency "action" that the Plaintiffs
challenge.
Turning to the putative class, Judge Kacsmaryk explains that to
establish class certification, parties must satisfy Rule 23(a)'s
four threshold requirements, commonly known as numerosity,
commonality, typicality, and adequacy of representation, as well as
requirements of Rule 23(b)(1), (2), or (3). A party seeking class
certification must also satisfy at least one ground listed in Rule
23(b).
Judge Kacsmaryk finds that the Requirements of Rule 23(a) are met.
She finds that (i) the class consists of more than 40 members; (ii)
the Plaintiffs propose at least two questions of law common to all
class members: whether Becerra's interpretation of Section 1557 is
consistent with the statutory definition of "sex" discrimination,
as construed by the Supreme Court in Bastock; and to what extent
does Section 1557's prohibition on "sex" discrimination compel
healthcare providers to provide "gender-affirming care" to patients
suffering from gender dysphoria?; (iii) the Plaintiffs' claims are
"more than typical" of the claims of the class; (iv) the Plaintiffs
will adequately prosecute the action; and (iv) the putative class
lacks ascertainability problems.
The Plaintiffs' putative class also satisfies Rule 23(b)(2). Rule
23(b)(2) allows class treatment when "the party opposing the class
has acted or refused to act on grounds that apply generally to the
class, so that final injunctive relief or corresponding declaratory
relief is appropriate respecting the class as a whole." Judge
Kacsmaryk holds that the Defendants again repeat their argument
that class certification is inappropriate because some proposed
class members disagree with the Plaintiffs. But, this argument
fails.
Finally, Judge Kacsmaryk holds that the Plaintiffs' putative class
satisfies Article III and Rule 23. She says requiring the claims of
the class representatives to be identical to those of each class
member to establish standing would also "confuse the requirements
of Article III and Rule 23." In any event each class member suffers
the same injury from the legal uncertainty created by Becerra's
notification of May 10, 2021. This is true regardless of whether
some class members disagree with the Plaintiffs.
For the foregoing reasons, Judge Kacsmaryk grants the Plaintiffs'
Motion and certifies the class under Rule 23(b)(2).
A full-text copy of the Court's Oct. 14, 2022 Opinion & Order is
available at https://tinyurl.com/48ymm3b6 from Leagle.com.
UNITED STATES: Short v. Defense Sec. Berger Dismissed W/o Prejudice
-------------------------------------------------------------------
In the case, Thomas Short, Major Short v. David Berger, et al.,
Defendants, Case No. CV-22-00444-PHX-DJH (D. Ariz.), Judge Diane J.
Humetewa of the U.S. District Court for the District of Arizona
enters an order:
a. granting the Defendants' Motion to Dismiss or, in the
Alternative, Stay Proceedings; and
b. denying as moot their Motion to Dismiss filed on June 21,
2022, and their Motion to Dismiss Plaintiff's First Amended
Complaint filed on July 27, 2022.
In August 2021, the Secretary of Defense issued a memorandum that
imposed a mandatory COVID-19 vaccine requirement on all service
members on active duty or in the Ready Reserves. Berger, Commandant
of the United States Marine Corps and Carlos Del Toro, Secretary of
the Navy, carried out enforcement of the COVID-19 vaccine mandate
by implementing various regulations.
Major Short is a Major in the United States Marine Corp ("USMC")
with the occupational specialty of judge advocate and is currently
stationed in Yuma, Arizona. After seeking an accommodation, he was
denied a religious exemption from the COVID-19 vaccine mandate.
Consequently, he was placed on the Officer Disciplinary Notebook
("ODN") and issued a Report of Misconduct.
Major Short filed suit in this Court on March 21, 2022, and applied
for a temporary restraining order and preliminary injunction the
same day. He sought to enjoin the Defendants from enforcing the
COVID-19 vaccine mandate against him and taking any adverse action
against him on the basis of his COVID-19 vaccine refusal. The Court
denied Major Short's request.
On July 12, 2022, Major Short filed a First Amended Complaint,
asserting three causes of action against the Defendants: (1)
violation of his rights under the Religious Freedom Restoration Act
("RFRA"); (2) violation of his First Amendment rights to free
exercise of religion; and (3) violation of the Administrative
Procedure Act ("APA") in failing to adhere to the substantive
requirements of 10 U.S.C. Section 1107a, 21 U.S.C. Section
360bbb-3, and 21 U.S.C. 355. After the Defendants filed their
Motion to Dismiss Major Short's First Amended Complaint, the Court
stayed proceedings while it awaited the parties' briefing regarding
the Defendants' Motion.
On Aug. 25, 2022, the parties notified the Court that on Aug. 18,
2022, the U.S. District Court for the Middle District of Florida
had issued an order certifying a class and issuing a classwide
preliminary injunction relating to Marines seeking religious
exemptions from the COVID-19 vaccine mandate -- Colonel Fin. Mgmt.
Officer, et al v. Austin, III, et. al, 8:22-CV-1275-SDM-TGW, 2022
WL 3643512 (M.D. Fla. Aug. 18, 2022) ("CFMO Class Action" "Class
Action").
Pursuant to Federal Rule of Civil Procedure 23(b)(2), the Florida
court certified the following class: All persons on active duty or
in the ready reserve (1) who serve under the command of the Marine
Corps, (2) who were affirmed by a chaplain as harboring a sincere
religious objection, (3) who timely submitted an initial request
for a religious accommodation [from the COVID-19 vaccination
requirement], (4) who were denied the initial request, (5) who
timely appealed the denial of the initial request, and (6) who were
denied or will be denied after appeal.
The Florida court further preliminary enjoined defendants Lloyd J.
Austin, III, Secretary of Defense, and Commandant Berger from the
following: (1) enforcing against a member of the class any order,
requirement, or rule to accept COVID-19 vaccination, (2) separating
or discharging from the Marine Corps a member of the class who
declines COVID-19 vaccination, and (3) retaliating against a member
of the class for the member's asserting statutory rights under
RFRA.
To enforce the Florida Order, on Sept. 14, 2022, the USMC issued
Marine Administration Message 464/22 entitled "Interim Guidance
Regarding Marines Requesting Religious Accommodation From COVID-19
Vaccination Requirements" ("MARADMIN 464/2").
This Court ordered the parties to file a brief on the impact, if
any, the recent Florida Order has on this matter. Thereafter, the
Defendants move to dismiss the case without prejudice or, in the
alternative, stay proceedings in lieu of the Florida Order and
pending CFMO Class Action, on the basis that Major Short is a class
member of the CFMO Class Action and may not opt out of the matter.
Judge Humetewa concludes that Major Short seeks a religious
exemption from the vaccine mandate, that the USMC cease to treat
his COVID-19 vaccine refusal as criminal conduct, and any other
just and proper relief. Each of Major Short's contested remedies
fall within the scope of the remedies sought and obtained by the
CFMO Class Action. His requested remedies are duplicative, not
discrete from the claims for systemic reform addressed in the Class
Action. Pursuant to the Court's inherent power to avoid
circumscribing the actions of another court handling a
prior-certified action, Major Short's case must be dismissed
without prejudice.
Accordingly, Judge Humetewa grants the Defendants' Motion to
Dismiss or, in the Alternative, Stay Proceedings and dismisses the
matter without prejudice. She denies as moot their Motion to
Dismiss the Plaintiff's First Amended Complaint.
A full-text copy of the Court's Oct. 14, 2022 Order is available at
https://tinyurl.com/mr4d2r8b from Leagle.com.
UNIVERSAL SERVICES: Small Sues for Breach of Fiduciary Duties
-------------------------------------------------------------
CHARLES SMALL, individually and on behalf of all others similarly
situated, Plaintiff v. UNIVERSAL SERVICES OF AMERICA, and DOES
1-10, inclusive, Defendants, Case No. 8:22-cv-01865 (C.D. Cal.,
Oct. 12, 2022) is a class action against the Defendants for
breaching their fiduciary duties of prudence in violation of the
Employee Retirement Income Security Act.
According to the complaint, the Defendants caused an "Allied
Universal 401(k) Plan" to pay unreasonable and excessive fees and
compensation to third-parties for recordkeeping, administrative
services, and in some cases for no reason at all, instead of
leveraging the Plan's tremendous bargaining power to benefit
participants and beneficiaries. The Defendants did not adhere to
fiduciary best practices to control Plan costs when looking at
certain aspects of the Plan's administration such as monitoring
investment management fees for the Plan's investments, resulting in
several funds during the Class Period being more expensive than
identical funds found in similarly sized plans, says the suit.
The Plaintiff has standing to bring this action on behalf of the
Plan because he participated in the Plan and was injured by
Defendants' imprudent conduct. The Plan is entitled to be restored
its losses caused by Defendants' imprudence. The Plaintiff and all
Plan participants are entitled to receive benefits in the amount of
the difference between the value of their accounts currently, or as
of the time their accounts were distributed, and what their
accounts is or would have been worth, but for Defendants' breaches
of fiduciary duty as alleged herein, the suit asserts.
Allied Universal is the Plan sponsor and a statutory fiduciary of
the Plan within the meaning of ERISA.[BN]
The Plaintiff is represented by:
Conal Doyle, Esq.
Stephen Beke, Esq.
DOYLE LAW, APC
280 S. Beverly Drive, Penthouse
Beverly Hills, CA 90212
Telephone: (310) 385-0567
E-mail: conal@conaldoylelaw.com
sbeke@conaldoylelaw.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
- and -
Brandon J. Hill, Esq.
Luis A. Cabassa, 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
- and -
Michael C. McKay, Esq.
MCKAY LAW, LLC
5635 N. Scottsdale Road, Suite 170
Scottsdale, AZ 85250
Telephone: (480) 681-7000
E-mail: mckay@mckay.law
W.S. BADCOCK: Loses Bid to Dismiss Miernik's 1st Amended Class Suit
-------------------------------------------------------------------
Judge Tom Barber of the U.S. District Court for the Middle District
of Florida, Tampa Division, denies the Defendant's motion to
dismiss the Plaintiff's first amended class action complaint in the
lawsuit entitled KRISTINA MIERNIK, Plaintiff v. W.S. BADCOCK
CORPORATION, Defendant, Case No. 8:22-cv-1395-TPB-AAS (M.D. Fla.).
W.S. Badcock sells and finances home furniture and electronics to
consumers with lower credit scores. According to the Plaintiff, for
around six months, the Defendant placed 23 prerecorded debt
collection calls to her phone. She alleges that she never provided
the Defendant with her phone number, and she never gave the
Defendant consent to contact her with prerecorded voice calls.
On June 20, 2022, the Plaintiff filed a class-action lawsuit
against the Defendant alleging it violated Section 227(b) of the
Telephone Consumer Protection Act ("TCPA") by initiating illegal
telemarketing calls to the Plaintiff and other non-consenting
individuals. On Aug. 15, 2022, she filed an amended complaint. The
Defendant now moves to dismiss the complaint for lack of standing.
In its motion, the Defendant argues that the Court lacks subject
matter jurisdiction because the constitutional standing
requirements of Article III are not satisfied.
In the amended complaint, the Plaintiff alleges that she received
23 unsolicited phone calls with a pre-recorded message. She further
alleges that she and other call recipients were harmed by these
calls because they were temporarily deprived of legitimate use of
their phones and their privacy was improperly invaded.
Judge Barber holds that the Plaintiff has presented sufficient
facts to confer Article III standing. Hence, the Defendant's motion
to dismiss is denied. The Defendant is directed to file an answer
by Oct. 20, 2022.
A full-text copy of the Court's Order dated Oct. 6, 2022, is
available at https://tinyurl.com/33jzewdc from Leagle.com.
WALMART INC: Court Allows Deposition of 7 Declarants in Haro Suit
-----------------------------------------------------------------
Magistrate Judge Sheila K. Oberto of the U.S. District Court for
the Eastern District of California grants the Defendant's motion to
compel depositions in the lawsuit entitled AMADO HARO and ROCHELLE
ORTEGA, on behalf of themselves and all others similarly situated,
Plaintiffs v. WALMART, INC., Defendant, Case No.
1:21-cv-00239-ADA-SKO (E.D. Cal.).
On Sept. 21, 2022, the Defendant filed a motion to compel the
depositions of seven of the 13 individuals, who submitted
declarations in support of Plaintiffs' pending motions for class
certification and for conditional certification (the "Motion"). The
parties filed their "Joint Statement re Discovery Disagreement"
directed to the Motion, as required by the Court's Local Rule 251,
on Sept. 28, 2022. The Court has reviewed the parties' papers and
all supporting material and finds the matter suitable for decision
without oral argument; hence, the hearing set for Oct. 12, 2022,
was vacated.
In this action, the Plaintiffs, individually and on behalf of all
others similarly situated, allege that Walmart implemented an
unlawful policy requiring its non-exempt workers to undergo a
COVID-19 screening each shift without pay. Specifically, the
Plaintiffs contend that the COVID-19 screening constitutes a
physical and medical examination that is compensable time under
both the Fair Labor Standards Act ("FLSA") and the California Labor
Code, and that, by failing to pay for all of the time in the
COVID-19 screenings spent by the Plaintiffs and the putative class
and collective members, Walmart has violated California and federal
law. The Plaintiffs seek compensation for the time that was worked
but not paid, overtime wages, liquidated damages, statutory
penalties for improper wage statements, attorney' fees, costs, and
interest.
The class and collective action commenced in February 2021. Prior
to the Scheduling Conference, which occurred on May 18, 2021, the
parties filed a Joint Scheduling Report, in which they stated under
"Subjects on which discovery may be needed": "Prior to class
certification, Walmart may also take discovery from putative class
members, and in particular, from putative class member [sic] who
might provide testimony in support of Plaintiffs' motion for class
certification."
On May 19, 2021, following the Scheduling Conference, the Court
issued a Scheduling Order setting forth class certification
discovery and class certification motion briefing deadlines. After
multiple stipulated enlargements of time, the Court ultimately
continued the deadline for completion of class certification
discovery to May 19, 2022, the class certification motion deadline
to Aug. 15, 2022, and the opposition deadline to Oct. 14, 2022.
The Plaintiffs filed their class certification and collective
action motions on Aug. 15, 2022. In support of the motions, the
Plaintiffs submitted declarations from thirteen current or former
employees of Walmart. Beginning on Aug. 22, 2022, defense counsel
began conferring with the Plaintiffs' counsel in an effort to
secure the depositions of all thirteen declarants. On Sept. 6,
2022, after conferring with the Plaintiffs' counsel, who
represented they would not agree to the depositions, defense
counsel proposed a "compromise" to depose no more than seven of the
13 declarants via the Zoom application, to limit the depositions to
no more than three hours of examination, and to produce "time, pay,
and screening records" in advance of each declarant's deposition.
The Plaintiffs' counsel rejected Walmart's proposal.
On Sept. 21, 2022, defense counsel once again emailed the
Plaintiffs' counsel to request their contribution to the joint
statement. Later that same day, Walmart filed the present Motion
and noticed it for hearing seven days later.
The Court observed that the hearing date for the Motion did not
comport with the applicable Local Rules, and re-set the hearing on
the Motion for Oct. 12, 2022. The Court also directed the parties
to "meet and confer about the discovery dispute by speaking with
each other in person, over the telephone, or via video
conferencing, and file their Joint Statement re Discovery
Disagreement by no later than 14 days before the hearing date." The
parties timely filed their Joint Statement on Sept. 28, 2022.
As a preliminary matter, Plaintiffs contend the Motion is untimely
because Walmart has "known of the identities of each of the Opt-In
Plaintiffs for over one year," yet waited until four months after
the close of class certification discovery to seek to depose those
individuals. Walmart does not dispute that the Plaintiffs disclosed
the names of those who opted-into the lawsuit, which would include
the declarants, as early as April 2021. However, that disclosure
included over 100 individuals.
Judge Oberto notes that it appears that Walmart learned of the
identities of the 13 declarants for the first time on Aug. 15,
2021, the day the Plaintiffs filed their motions. After exchanging
several emails with the Plaintiffs' counsel regarding the dispute,
Walmart ultimately declared an "impasse." The Court cannot
conclude, based on this chronology, the Motion is untimely.
The Plaintiffs also assert the Motion is "defective" because
Walmart has not issued deposition notices for the declarants it
wishes to depose. The Court disagrees with the Plaintiffs'
characterization, but does observe that a "motion to compel
depositions" is not the correct procedural mechanism where no
depositions have yet been noticed. Instead, the Motion should
properly be characterized as one to modify the scheduling order
under Federal Rule of Civil Procedure 16, as argued by the
Plaintiffs, or a motion to re-open discovery under Federal Rule of
Civil Procedure 6(b)(1)(B). Either way, the Court is guided by the
good cause standard.
The Court finds good cause to permit Walmart to take the
depositions of seven of the Plaintiffs' declarants before their
opposition to the Plaintiffs' class and collective certification
motions is due. While generally courts do not permit discovery from
absent class members, the policies related to absent class members
is "flexible," where, as here, the proposed deponents have
"injected" themselves into the litigation by signing declarations
in support of the Plaintiffs' motions.
The Court further finds the Plaintiffs will not be prejudiced by
the Court re-opening class discovery to allow Walmart time to
depose seven of the Plaintiffs' declarants.
The Court grants the Defendant's motion to compel depositions of
the Plaintiffs' declarants. It is further ordered that:
1. The hearing on the motion, set for Oct. 12, 2022, is
vacated;
2. Walmart is permitted to conduct seven (7) depositions of
the putative class members, who have submitted declarations
in support of the Plaintiffs' class certification and
collective action motions;
3. Walmart was to identify the seven deponents by Oct. 12,
2022, and the parties will meet and confer to work out a
schedule for these depositions, to be conducted using the
Zoom application;
4. At a reasonable time prior to the deposition, Walmart will
produce the deponent's time records, screening records, and
pay records, as previously proposed by Walmart;
5. Walmart is limited to three hours for each deposition of
the seven deponents;
6. All depositions must be completed no later than Nov. 14,
2022;
7. The current case schedule is modified as follows:
a. Walmart's opposition to the Plaintiffs' class
certification and collective action motions will be
filed by no later than Dec. 14, 2022;
b. Any reply brief in support of the motions will be filed
by no later than Jan. 11, 2023;
c. The motion for class certification will be heard on
Feb. 22, 2023; and
d. A further conference to set further scheduling dates is
set for Aug. 3, 2023, at 9:30 A.M., before Magistrate
Judge Sheila K. Oberto.
A full-text copy of the Court's Order dated Oct. 6, 2022, is
available at https://tinyurl.com/yc6pu9h9 from Leagle.com.
WAYNE COUNTY, MI: Sabree Files 6th Cir. Appeal in Bowles Class Suit
-------------------------------------------------------------------
ERIC R. SABREE, et al. filed a notice of appeal in the lawsuit
styled Tonya Bowles, et al., individually and on behalf of others
similarly situated, Plaintiffs, v. Eric R. Sabree, in his official
and personal capacity, et al., Defendants, Case No. 2:20-cv-12838,
in the U.S. District Court for the Eastern District of Michigan.
As previously reported in the Class Action Reporter, Plaintiffs
Tonya Bowles and Bruce Taylor, former real property owners, filed a
putative class action complaint on behalf of themselves and other
similarly situated individuals against the following Defendants:
(i) County of Wayne by its Board of Commissioners, also sometimes
known as Charter County of Wayne by its Board of Commissioners;
(ii) County of Oakland; (iii) Wayne Treasurer, Eric Sabree; and
(iv) Oakland Treasurer, Andrew Meisner. The action arises out of
property tax foreclosures in Wayne and Oakland counties. The
Plaintiffs allege violations of their constitutional rights and
Michigan law in connection with the tax foreclosure process.
In their pleading, the Plaintiffs do not challenge the foreclosure
of their property; instead, they assert violations of their rights
under the Fifth, Eighth, and Fourteenth Amendments of the United
States and Michigan Constitutions and state law in connection with
the tax auction sales. Specifically, they claim that the Defendants
wrongfully retained the sales proceeds exceeding the taxes they
owed on the properties and seek unpaid "just compensation" and
other monetary damages. The Plaintiffs are suing Sabree and Meisner
in their individual and official capacities.
The Defendants filed motions to dismiss, which the Court granted in
part and denied in part on January 14, 2022. The Court also granted
class certification.
On January 28, 2022, the Defendants filed a motion for
reconsideration.
On July 26, 2022, Defendant County of Oakland filed a joint motion
for approval of notice plan and appointment of claims administrator
and a joint motion for preliminary approval of settlement.
Plaintiff Bruce Taylor also filed a petition for attorney fees.
On August 11, 2022, Defendant County of Oakland filed a motion to
strike.
On September 6, 2022, District Judge Linda V. Parker issued an
opinion and order denying Defendants' motion for reconsideration;
granting Defendant County of Oakland's Joint Motion for approval of
Notice Plan and appointment of claims administrator; granting
Defendant County of Oakland's joint motion for preliminary approval
of settlement; granting Bruce Taylor's petition for attorneys'
fees; and denying County of Oakland's motion to strike.
The Court finds no mistake in its January 14, 2022 decision that,
when corrected, changes the outcome of that decision. Nor does "a
need to correct a clear error or prevent manifest injustice"
warrant reconsideration of the decision, ruled the Court.
The appellate case is captioned Tonya Bowles, et al. v. Eric
Sabree, et al., Case No. 22-1912, in the United States Court of
Appeals for the Sixth Circuit, filed on October 12, 2022. [BN]
Defendants-Appellants ERIC R. SABREE, et al., individually and on
behalf of all others similarly situated, are represented by:
Nasseem Sara Ramin, Esq.
DYKEMA GOSSETT
400 Renaissance Center, Suite 1800
Detroit, MI 48075
Telephone: (313) 568-6800
- and -
Theodore W. Seitz, Esq.
DYKEMA
201 Townsend Street, Suite 900
Lansing, MI 48933
Telephone: (517) 374-9100
- and -
William H. Horton, Esq.
GIARMARCO, MULLINS & HORTON
101 W. Big Beaver Road, Suite 1000
Troy, MI 48084
Telephone: (248) 457-7000
Plaintiffs-Appellees TONYA BOWLES, et al., individually and on
behalf of all others similarly situated, are represented by:
Aaron D. Cox, Esq.
Law Office
23820 Eureka Road
Taylor, MI 48180
Telephone: (734) 287-3664
- and -
Mark K. Wasvary, Esq.
Law Office
645 Griswold, Suite 4300
Penobscot Building
Detroit, MI 48226
Telephone: (248) 649-5667
- and -
Philip Lee Ellison, Esq.
Outside Legal Counsel
P.O. Box 107
Hemlock, MI 48626
Telephone: (989) 642-0055
- and -
David J. Shea, Esq.
SHEA LAW
26100 American Drive, Second Floor
Southfield, MI 48034
Telephone: (248) 354-0224
WELLS FARGO: Approval of Class Settlement in Kang Suit Affirmed
---------------------------------------------------------------
In the case, JAMES C. KANG, et al., Plaintiffs-Appellees v. KIRK E.
FYSON, Objector-Appellant, v. WELLS FARGO BANK, N.A.,
Defendant-Appellee, Case No. 22-15694 (9th Cir.), the U.S. Court of
Appeals for the Ninth Circuit affirms the district court's approval
of the class action settlement and denial of Fyson's motion to
intervene.
Mr. Fyson challenges the district court's approval of a class
action settlement of a labor dispute between Wells Fargo and the
Ibarra and Kang classes, two certified classes of which Fyson is a
member. He also challenges the district court's denial of his
motion to intervene.
The Ninth Circuit previously affirmed in part a district court
judgment in favor of the Ibarra class in Ibarra v. Wells Fargo
Bank, N.A., 809 F. App'x 361, 365-66 (9th Cir. 2020). It ordered
payment of some damages (about $24 million) but stayed the
determination of any remaining damages pending the decision of the
California Supreme Court in Ferra v. Loews Hollywood Hotel, LLC,
No. S259172, which would impact whether further damages were owed.
Following that order and the issuance of the related mandate, it
administratively closed the separate appeal the Plaintiffs had
filed challenging the district court's attorney's fee award.
The parties entered the settlement now at issue, and the district
court tentatively approved it, after the Ninth Circuit's prior
orders but before the California Supreme Court's decision in Ferra.
The district court subsequently gave final approval to the parties'
settlement, awarding the Plaintiffs $70 million in additional
damages, and approving a $21 million award of attorney's fees, or
about 22% of the plaintiff classes' total recovery of $95 million.
Mr. Fyson filed an objection to the settlement and a motion to
intervene, both of which were denied by the district court. He now
appeals the district court's approval of the settlement, grant of
attorney's fees, and denial of his motion to intervene.
Mr. Fyson argues that, in approving the settlement, the district
court: (1) failed to comply with the Ninth Circuit's prior mandate,
(2) invaded the Ninth Circuit's jurisdiction by determining
attorney's fees while the attorney fee appeal was still "pending,"
(3) violated the Class Action Fairness Act ("CAFA") by allowing a
"net loss" for 89 class members, and (4) abused its discretion in
disregarding the allegedly collusive and unfair nature of the
settlement. Fyson also argues that the district court (5) erred in
denying his motion to intervene.
The Ninth Circuit holds that the district court's approval of the
settlement did not violate its mandate because nothing in its order
precluded the parties from reaching a settlement or the district
court from approving a settlement. The district court also did not
exceed its jurisdiction in granting attorney's fees in conjunction
with the settlement because the administratively closed appeal
posed no hurdle to the district court's consideration, once the
parties reached a global settlement, of the amount of attorney's
fees to be awarded in conjunction with that settlement. Nor did the
district court violate CAFA because the Fifth Circuit says the
settlement did not result in a "net loss" for any class members.
The Ninth Circuit further holds that the district court did not
abuse its discretion in concluding that the settlement was "fair,
reasonable, and adequate" because the district court carefully
scrutinized the fee amount. Nor did the district court violate Rule
23(e)(2)(D) because proposed settlement agreements treat the claims
of class members "equitably relative to each other." Nor did the
district court violate Rule 23(c)(2) since all class members were
provided an opportunity to opt out and none did so. Fyson instead
made only an untimely objection to the settlement.
Lastly, the district court did not err in denying Fyson's motion to
intervene on grounds of untimeliness and adequate representation.
Fyson offers no evidence of inadequacy of representation beyond the
failed arguments he makes in his objection to the settlement, the
Ninth Circuit finds.
A full-text copy of the Court's Oct. 12, 2022 Memorandum is
available at https://tinyurl.com/2pkrmu33 from Leagle.com.
WORLEY & OBETZ: Loses Bid for Summary Judgment in Daveler Suit
--------------------------------------------------------------
In the case, In re: Worley & Obetz, et al., Chapter 7, Debtors. Amy
Daveler and Marco Perez, on behalf of themselves and all others
similarly situated, Plaintiffs v. Worley & Obetz, Inc., Amerigreen
Energy, Inc., and Amerigreen Propane, LLC, Defendants. Christine C.
Shubert, Chapter 7 Trustee for the Estates of Worley & Obetz, Inc.,
Amerigreen Energy, Inc., and Amerigreen Propane, LLC, Bankruptcy
No. 18-13774-MDC, Adversary No. 18-00132-MDC (E.D. Pa.), Judge
Magdeline D. Coleman of the U.S. Bankruptcy Court for the Eastern
District of Pennsylvania grants the Plaintiffs' Summary Judgment
Motion and denies the Defendants' Summary Judgment Motion.
The Plaintiffs have filed a class action adversary proceeding
against the Defendants. The Plaintiffs, on behalf of themselves and
other similarly situated former employees of the Defendants, allege
the Defendants violated the Worker Adjustment and Retraining
Notification Act, 29 U.S.C. Sections 2101, et seq. (the "WARN Act")
when ceasing operations and terminating their former employees in
2018.
Worley was in the business of commercial and residential energy
services, as well as heating, ventilation, and air conditioning
services. Jeffrey Lyons was the CEO of Worley, and Joel Hagaman was
the Chief Financial Officer. Seth Obetz was an owner of Worley and
also held a senior management role. Worley maintained its corporate
headquarters at 85 White Oak Road in Manheim, Pennsylvania and also
maintained a facility on Greenfield Road in Lancaster,
Pennsylvania.
Amerigreen Energy was an affiliate of Worley and was a wholesale
distributor of petroleum products. Mr. Lyons held a senior
management role with Amerigreen Energy, and Mr. Hagaman was the
Chief Financial Officer. Mr. Obetz also held a senior management
role with Amerigreen Energy. Amerigreen Propane was a division of
Amerigreen Energy until at least 2017. Amerigreen Energy maintained
offices at 1650 Manheim Pike in Lancaster, Pennsylvania and in New
Jersey.
Mr. Lyons is central to the Defendants' cessation of operations in
2018. It is undisputed that Mr. Lyons engaged in corporate fraud in
his position as CEO of Worley. Mr. Lyons, together with two of
Worley's controllers, falsified profit and loss figures to inflate
Worley's accounts receivable, thereby making Worley look more
profitable than it actually was. He would receive the actual profit
and loss statements from most or every Worley department, then add
fictional profits. He also falsified a contract with Giant
Supermarkets to inflate the account receivable from Giant.
By 2018, Mr. Lyons had been falsely inflating revenue and accounts
receivable for approximately 13 years. He also worked with
Amerigreen Energy's controller to fraudulently move cash between
Amerigreen Energy and Worley and concealed those transfers by
making them appear to be transactions from legitimate customers.
Mr. Lyons' fraudulent activity began to unravel, however, when, in
2017, Worley hired a consulting firm named Strategic Resources,
Inc. to help develop a strategic plan. Fulton Bank, the primary
funder of the Defendants' operations, had lent tens of millions of
dollars based in part on receivables from Giant that did not exist.
The Defendants had no ability to satisfy the $80 million debt to
Fulton from operations or assets. Subsequently Fulton had swept the
Defendants' accounts and was shutting them down. Once Fulton seized
their remaining funds, the Defendants immediately ceased operations
and terminated all employees on June 4, 2018.
Two days after ceasing operations, on June 6, 2018, the Defendants,
together with eight affiliates, filed voluntary bankruptcy
petitions under chapter 7 of the Bankruptcy Code. The Trustee was
appointed on that date. The following day, the Plaintiffs initiated
the Adversary Proceeding.
The Complaint alleges the Plaintiffs and approximately 250 other
former employees of the Defendants (the "WARN Class") were
terminated as part of a mass layoff ordered by the Defendants on
May 21, 2018, triggering the WARN Act's notice requirements. The
Plaintiffs allege the Defendants failed to give the members of the
WARN Class 60 days advance notice of their terminations as required
by the WARN Act, and failed to pay the members of the WARN Class
their respective wages, salary, commissions, bonuses, accrued
vacation and personal time off for 60 days following their
respective terminations, and failed to make the pension and 401(k)
contributions and provide employee benefits under COBRA for 60 days
after their respective terminations (the "WARN Act Damages").
With respect to monetary relief, the Complaint seeks (a) an allowed
priority wage claim up to $12,850 for each WARN Class member
pursuant to Sections 507(a)(4) and (a)(5) of the Bankruptcy Code,
with the remainder of any WARN Class member's claim being a general
unsecured claim, or alternatively, a post-petition administrative
expense claim for each WARN Class member's WARN Act Damages, and
(b) reasonable attorneys' fees, costs, and disbursements, as
authorized by the WARN Act.
The Defendants filed an Answer generally denying the allegations of
the Complaint, after which the Parties engaged in discovery.
Pending in the Adversary Proceeding are (i) the Defendants' Motion
for Partial Summary Judgment and (ii) the Plaintiffs' Motion for
Partial Summary Judgment.
The Plaintiffs seek partial summary judgment on the limited issue
of whether the Affiliated Entities constituted a single employer
under the WARN Act, such that they are aggregated and are jointly
and severally liable for any WARN Act violations the Defendants
committed. In response, the Defendants concede, solely for purposes
of responding to the Plaintiffs' Summary Judgment Motion, that
Worley and Amerigreen Energy were a single employer under the WARN
Act.
Judge Coleman holds that Worley, Amerigreen Energy, and Ranck
constituted a single employer for purposes of the WARN Act, and
therefore were, together, an "employer" under Section 2101(a)(1) of
the WARN Act. Among other things, she finds that (i) there is no
genuine dispute of material fact that Worley and Ranck shared
ownership and there was a unity of personnel policies emanating
from a common source for the Affiliated Entities; (ii) Mr. Obetz
was the President of Ranck in addition to holding a director and
officer position with Worley; and(iii) Ranck's operations were
sufficiently dependent on Worley and Amerigreen. The Plaintiffs'
Summary Judgment Motion will therefore be granted on this limited
issue.
The Defendants seek partial summary judgment on a broader basis
than the Plaintiffs. With the exception of a fraction of the May
21st Laid Off Employees, they assert that they are entitled to
summary judgment with respect to all other terminated employees
because the unforeseeable business circumstance exemption to the
WARN Act applies.
Judge Coleman holds that material factual disputes preclude
granting partial summary judgment to the Defendants on this basis.
She says at trial, it will be the Defendants' burden to establish
that the unforeseen business circumstance exception applies.
However, she cannot find on the present record that the exception
is or is not applicable as a matter of law.
The Defendants assert that even if the unforeseen business
circumstances exemption does not apply, they are at least entitled
to partial summary judgment with respect to any WARN Class members
who were employed at locations with less than 50 employees, because
such locations did not qualify as "plant closings" under the WARN
Act.
Judge Coleman concludes, however, that the Worley Manheim Office
and the Amerigreen Lancaster Office are in reasonable geographic
proximity of each other. A material factual dispute exists as to
whether the Worley and Amerigreen Energy facilities shared the same
staff, as opposed to outlier senior management members working from
both locations, precluding summary judgment. Likewise, the Court
needs further factual development regarding whether the Worley
Manheim Office and the Amerigreen Lancaster Office were "used for
the same purpose."
Finally, the Defendants argue that Amerigreen Propane had no
employees at the time the Defendants closed, and therefore is not
an employer under the WARN Act and is entitled to summary judgment.
The Plaintiffs respond that Amerigreen Propane directly employed
three people, including Perez. Judge Coleman finds this issue is
subject to a material factual dispute, precluding summary judgment
in favor of the Defendants.
For these reasons, Judge Coleman (a) grants the Plaintiffs' Summary
Judgment Motion, and (b) denies the Defendants' Summary Judgment
Motion. An Order consistent with her Memorandum will be entered.
A full-text copy of the Court's Oct. 12, 2022 Memorandum is
available at https://tinyurl.com/4eysum45 from Leagle.com.
*********
S U B S C R I P T I O N I N F O R M A T I O N
Class Action Reporter is a daily newsletter, co-published by
Bankruptcy Creditors' Service, Inc., Fairless Hills, Pennsylvania,
USA, and Beard Group, Inc., Washington, D.C., USA. Rousel Elaine T.
Fernandez, Joy A. Agravante, Psyche A. Castillon, Julie Anne L.
Toledo, Christopher G. Patalinghug, and Peter A. Chapman, Editors.
Copyright 2022. All rights reserved. ISSN 1525-2272.
This material is copyrighted and any commercial use, resale or
publication in any form (including e-mail forwarding, electronic
re-mailing and photocopying) is strictly prohibited without prior
written permission of the publishers.
Information contained herein is obtained from sources believed to
be reliable, but is not guaranteed.
The CAR subscription rate is $775 for six months delivered via
e-mail. Additional e-mail subscriptions for members of the same
firm for the term of the initial subscription or balance thereof
are $25 each. For subscription information, contact
Peter A. Chapman at 215-945-7000.
*** End of Transmission ***