/raid1/www/Hosts/bankrupt/CAR_Public/221221.mbx
C L A S S A C T I O N R E P O R T E R
Wednesday, December 21, 2022, Vol. 24, No. 248
Headlines
7-ELEVEN INC: Entry of Final Judgment in Haitayan Suit Affirmed
ACTELION PHARMACEUTICALS: Sued Over Blood Pressure Meds' Price Hike
BANCO POPULAR: Bid to Compel Lipsett to Arbitrate Claims Denied
BESTCOMP INC: Louisiana Sup. Ct. Flips $5MM Award in Williams Suit
BG RETAIL: Fails to Pay Proper Wages, Zachary Suit Alleges
BUILDING SERVICES: Guiracocha Sues Over Unpaid Overtime Wages
CALIFORNIA FARMS MEAT: Nava Sues Over Unpaid Overtime Wages
CANADA BREAD: Appeals Court Lacks Jurisdiction to Hear Ruling
CEREBRAL INC: Bilbao Sues Over Unsolicited Text Messages
COMMONWEALTH OF MASSACHUSETTS: Bagni Files Suit in Mass. Super. Ct.
CONSUMER REPORTS: Bid to Dismiss Wallen's First Amended Suit OK'd
CVS PHARMACY INC: Krivca Sues Over False and Misleading Labeling
D'ADDARIO & COMPANY: Tenzer-Fuchs Files ADA Suit in E.D. New York
DARON WORLDWIDE: Fagnani Files ADA Suit in S.D. New York
DELAWARE: Court Denies Bid Class Certification in Crichlow Suit
DEMERT BRANDS: Evans Files Suit in N.D. Illinois
DOWNER EDI: Class Action Lawyers Mull Suit Following Stock Plunge
ECCO RETAIL: Amort Suit Remanded to San Mateo Superior Court
EPIC GAMES: Fortnite Video Game Addictive for Children, Suit Claims
EQUIFAX CANADA: Hoskin & Harcourt Discusses Data Breach Suit Ruling
ETHEREUMMAX: Judge Tosses Fraud Class Suit Involving Celebrities
EXTENDED STAY AMERICA: Brittian Sues Over Denied Refund
FAIRFIELD COLLECTIBLES: Fagnani Files ADA Suit in S.D. New York
FAMILY PRACTICE: Roberts Files Suit in N.D. Illinois
FAMILY SOLUTIONS: Bid to Decertify Class in Stephenson Suit Denied
FAMILY SOLUTIONS: Loses Bid to Exclude Testimony in Stephenson Suit
FANJOY CO: Luis Files ADA Suit in S.D. New York
FRANK & EILEEN: Fagnani Files ADA Suit in S.D. New York
GAIA INC: Rosen Law Firm Investigates Potential Securities Claims
GEICO INDEMNITY: Andrade Suit Removed to D. New Jersey
GOLDWATER BANK: District of Arizona Narrows Claims in Feins Suit
GONCHEZ REALTY CORP: Hanyzkiewicz Files ADA Suit in E.D. New York
HENNEPIN COUNTY PROBATE: Vickerman Files Suit in D. Minnesota
HERTZ CORP: Settles Consumers Lawsuits Over Stolen Vehicles
IDEXX LABORATORIES: Yuen Suit Transferred to D. Maine
JOHNSON & JOHNSON: Faces Class Action Over Neutrogena Sunscreen
JOLIET, IL: Faces Class Suit Over Hefty Fines for Commercial Trucks
JPMORGAN CHASE: Radabaugh FLSA Suit Transferred to S.D. Ohio
KHAYLIE HAZEL: Class Certification Discovery in Martin Suit Denied
KIA AMERICA: Browning Files Suit in D. Arizona
KIK INT'L: Angeles Class Suit Remanded to Los Angeles Super. Court
KIMBERLY-CLARK CORP: Diapers Caused Chemical Burns, Suit Claims
LANGUAGE LINE: Boyce Sues Over Unpaid Minimum and Overtime Wages
LET'S MEAT INC: Kim Sues Over Failure to Pay Minimum Wages
LIZA LUCION: Faces Class Action Over Immigration Scam in Canada
MASTERCARD INC: Merricks to Launch Campaign for GBP17-Bil. Claim
MELVIN PETERSON: Wilson Files Suit in D. Minnesota
META PLATFORMS: C.C. Suit Removed to M.D. North Carolina
MILTON ADAIR TINGLING: Justin Files Suit in S.D. New York
N.Y.C. BICYCLES: Rodriguez Files ADA Suit in E.D. New York
NATIONAL VISION: Maisnier Suit Removed to N.D. California
NEW YORK, NY: Court Dismisses Without Prejudice Goring v. Carter
NEW YORK, NY: Olivierre Files Suit in N.Y. Cty. Clerk
NEW YORK, NY: Taxi Drivers Sue Over Post-Arrest License Suspensions
NEW YORK: Asks Permission to File Up to 30 Pages Memorandum
NEW YORK: Bertrand Sues Over Unpaid Overtime Wages
NEWAGE INC: Bids for Lead Plaintiff Appointment Due February 6
NORTH CAROLINA: Faces Class Action Over Foster Children Abuse
NURSELOOP USA: Johnson Files Suit in Cal. Super. Ct.
OAKHURST PARTNERS: Fagnani Files ADA Suit in S.D. New York
PROVIDENT BANCORP: Rosen Law Firm Investigates Securities Claims
R.J.D. WILLIAMS: Court Certifies Class Action Over School Abuse
RACKSPACE TECHNOLOGY: Q Industries Sues Over Failure to Secure Data
REALPAGE INC: Bohn Sues Over Conspiracy to Fix Housing Prices
RELIABLE POULTRY: Canion Sues Over Failure to Pay Overtime Wages
RINGCENTRAL: Aliav Sues Over Deceptive Advertising and Marketing
SCHOLASTIC INC: Rodriguez Files ADA Suit in E.D. New York
SHERWIN-WILLIAMS COMPANY: Bagley Suit Removed to C.D. California
SINGULARITY FUTURE: Bids for Lead Plaintiff Appointment Due Feb. 7
SINGULARITY FUTURE: Crivellaro Sues Over Decline in Market Value
SIRIUS XM: Stipulated Protective Order Entered in Potts Class Suit
SKIPTHEDISHES: Osler Hoskin Attorneys Discuss Class Action Ruling
SOMNIA INC: Harris Sues Over Data Breach
SOVEREIGN LENDING: Protective Order in DeVivo Suit Granted in Part
SPIRIT AIRLINES: Curd Sues Over Wiretapping of Communications
STANDARD FIRE: Harrington Suit Removed to D. Massachusetts
STATE BAGS: Fagnani Files ADA Suit in S.D. New York
STIIZY LLC: Sued for Allegedly Overstating Cannabis THC Content
STITCHER MEDIA: Luis Files ADA Suit in S.D. New York
STOCKX INC: Court Grants Bid to Compel Arbitration in Valiente Suit
SUKUT CONSTRUCTION: Remand of Rodriguez Suit to State Court Denied
SYNGENTA CROP: Slovak Files Suit in M.D. North Carolina
SYSCO SACRAMENTO: Bid to Compel Discovery in Fite Class Suit Denied
TALIS BIOMEDICAL: Securities Class Suit Tossed With Leave to Amend
TGI FRIDAY'S: Must Face Class Action Over Mozzarella Snack Sticks
TRINKET SHOP: Fagnani Files ADA Suit in S.D. New York
TSLCJ LLC: Fails to Pay Proper Wages, Viera Suit Alleges
UBER TECHNOLOGIES: Holland & Knight Discusses Settlement Ruling
UNITED STATES: Cheng Files Suit in S.D. New York
UNITED STATES: Greene's Bid for Appointment of Counsel Denied
UNIVERSITY OF ILLINOIS: Bid to Certify Class in Brown Suit Denied
USA WASTE: Arellano Suit Removed to E.D. California
VERDECO RECYCLING: Avila Sues Over Unpaid Minimum, Overtime Wages
VILLAGE CAREGIVING: Butler Sues Over Failure to Pay Overtime Wages
VIVERANT PT: Reed Files TCPA Suit in D. Minnesota
VOLVO CAR USA: Smith Sues Over Wiretapping of Website Visitors
WAKEFERN FOOD: Fails to Pay Proper Wages, Smith Suit Alleges
WELLS FARGO & COMPANY: Price Files Suit in Cal. Super. Ct.
YAZAM INC: Faces Class Suit Over Ridesharing Service Empower
YUGA LABS: Celebrities Among Defendants in Bored Ape NFT Scheme
[*] Four Business Interruption Class Suits Return to Court in 2023
[*] NZ Gov't Accepts Key Recommendations on Class Action Reform
*********
7-ELEVEN INC: Entry of Final Judgment in Haitayan Suit Affirmed
---------------------------------------------------------------
In the cases, SERGE HAITAYAN, et al., Plaintiffs-Appellants v.
7-ELEVEN, INC., a Texas corporation, Defendant-Appellee. SERGE
HAITAYAN, et al., Plaintiffs-Appellants v. 7-ELEVEN, INC., a Texas
corporation, Defendant-Appellee, Case Nos. 21-56144, 21-56145 (9th
Cir.), the U.S. Court of Appeals for the Ninth Circuit affirms the
district court's entry of final judgment in favor of 7-Eleven.
Four 7-Eleven franchisees brought the putative diversity class
action, contending that they should be classified as employees
rather than as independent contractors under California law. After
a bench trial, the district court entered a final judgment in favor
of 7-Eleven, and the Plaintiffs have timely appealed.
On appeal, the Plaintiffs argue that the district court erred by
applying the test enunciated in S.G. Borello & Sons, Inc. v.
Department of Industrial Relations, 769 P.2d 399 (Cal. 1989),
rather than the "ABC" test adopted for California wage order
violations in Dynamex Operations West, Inc. v. Superior Court, 416
P.3d 1 (Cal. 2018).
The Ninth Circuit reviews legal issues de novo and factual findings
for clear error. It notes that its recent decision in Bowerman v.
Field Asset Services, Inc., 39 F.4th 652 (9th Cir. 2022), controls
most of the legal issues. The expenses at issue, including employee
compensation and advertising, are just as distinct from Wage Order
9's concept of "tools and equipment" as were the Bowerman
plaintiffs' fuel and insurance costs. Bowerman also holds that
Assembly Bill ("A.B.") 5, which extends the ABC test to govern all
Labor Code claims, Cal. Lab. Code Section 2775(b), does not apply
retroactively to claims not rooted in a wage order.
The Ninth Circuit holds that the district court erred by refusing
to consider the Plaintiffs' claims that accrued after 2020, which
are governed by A.B. 5 and, therefore, are subject to the ABC test.
But that error is harmless, it points out. The district court made
extensive factual findings that all three parts of the ABC test are
met. The three prongs of the ABC test are included within the
Borello test. In particular, the district court properly found that
the Plaintiffs are engaged in a different course of business than
7-Eleven and that they engaged in a distinct business and held
themselves out to be business owners.
A full-text copy of the Court's Dec. 9, 2022 Memorandum is
available at https://tinyurl.com/mnrek4d from Leagle.com.
ACTELION PHARMACEUTICALS: Sued Over Blood Pressure Meds' Price Hike
-------------------------------------------------------------------
Corrado Rizzi, writing for ClassAction.org, reports that Actelion
Pharmaceuticals faces a proposed class action lawsuit that alleges
the company has illegally schemed to raise the unit price and
quantity dispersed of certain high blood pressure drugs, causing
Medicare Advantage and Medicaid health plans -- and, consequently,
their patients -- to pay artificially high prices for the
life-saving treatments.
The 84-page RICO complaint against Actelion, Caring Voice Coalition
(CVC) and CVC successor Adira Foundation alleges the entities have
worked together to circumvent congressionally mandated co-payment
requirements designed to combat the ever-increasing prices of
Actelion's pulmonary arterial hypertension drugs, including
Tracleer, Opsumit, Veletri and Ventavis.
According to the case, the defendants executed their scheme through
"numerous overt acts" that effectively eliminated price sensitivity
for Medicare Advantage and Medicaid patients by covering the cost
of their co-payments. This allowed Actelion to spike prices
"without concern of their product not being dispensed due to
patient financial restrictions," leading to the over-dispensing of
"supra-competitively priced drugs," the suit alleges.
More specifically, Actelion and CVC "colluded and agreed" that the
latter would "act as an illegal conduit, disguised as an
independent charity," through whom Actelion could funnel
"kickbacks" to pharmacies, the suit claims. Per the case, the two
defendants allegedly agreed that CVC would create a pulmonary
arterial hypertension fund that would cater exclusively or
near-exclusively to patients taking Actelion's drugs, and that the
company would be the fund's sole donor. Through the fund, CVC would
pay the co-payment obligations for Medicare Advantage and Medicaid
patients who otherwise may not have been able to afford their
portion of the cost. With price sensitivity eliminated, pharmacies
could dispense more of the drugs and Actelion could raise their
prices while federal health care programs were left to foot the
bill, the lawsuit alleges.
Essentially, Actelion "bribed" CVC to serve as a middleman to
funnel kickbacks to pharmacies, the lawsuit alleges. The filing
claims Actelion's bribes to CVC and the defendants' essentially
illegal payments to federal healthcare program beneficiaries are
violations of the federal Anti-Kickback Statute, which "makes it a
crime to knowingly and willfully offer, pay, solicit, or receive
any remuneration to induce a person to purchase or recommend any
good, service, or item covered under a federal health care
program."
Further, the case says Actelion routinely obtained data from CVC
detailing the number of patients who were taking its drugs, CVC's
spending on those patients and how much it expected to spend on
them in the future. This information was allegedly used to ensure
that CVC used Actelion's donations for only the company's drugs
while allowing Actelion to perform "return on investment
calculations."
The lawsuit also alleges the defendants funneled Medicare Advantage
and Medicaid Plan patients away from Actelion's free drug program
because they were "eligible for participation in federal health
programs."
"In other words," the case says, "Defendants treated customers
differently based on eligibility for participation in the federal
health programs."
According to the suit, Actelion ensured that large sums of money
would continuously be paid to CVC, improperly influencing the
group's actions. Likewise, the lawsuit says, the defendant ensured
that co-payment assistance grants, paid for and facilitated by
Actelion and distributed by CVC, also improperly influenced
patients' receipt of and/or pharmacies' dispensing of the Actelion
blood pressure drugs.
"In doing so, Defendants eliminated the effects of price
sensitivity—because the patients (i.e., consumers) were no longer
incurring any cost—thereby eliminat[ing] price considerations,
thus artificially increasing the quantity dispensed by pharmacies,
and the amount of claims paid by Assignors and Class Members for
Actelion Drugs. Accordingly, with price sensitivity eliminated, the
Co-Payment Scheme allowed Actelion to circumvent congressional
safeguards and artificially increase the price of Actelion Drugs
for all prescriptions to supra-competitive levels."
The complaint relays that Actelion in December 2018 paid $360
million to settle federal claims that it violated the Anti-Kickback
Statute and False Claims Act. The Department of Justice's
allegations against the pharmaceutical company are related to the
conduct alleged in the instant proposed class action, and Actelion
did not address or settle damages allegedly sustained by the
proposed class members, the case says.
"The improper actions alleged here have allowed Actelion to
maintain supra-competitive prices by eliminating price sensitivity
that would have directly benefited consumers and the public at
large," the lawsuit reads. "Price sensitivity counterbalances
Actelion's desire to inflate prices for medically necessary
drugs—which is why Congress relies on price sensitivity as a
vital mechanism for combating supra-competitive pricing for
Government payors."
The plaintiffs behind the case are companies that obtained
assignments from entities (assignors) who provide health insurance
coverage pursuant to Medicare Part C and Part D and Medicaid on
behalf of enrollees. The assignors ultimately became financially
responsible for the cost of the "illegally inflated and excessively
dispensed" Actelion drugs at issue, the filing claims.
The lawsuit looks to cover:
"All Medicare Advantage Organizations, Medicaid Managed Care
Organizations, and at-risk, first-tier, and downstream entities in
the United States and its territories that from at least January 1,
2014 through present, pursuant to Medicare and/or Medicaid
contracts offering Medicare and Medicaid benefits, provided
services, purchased Subject Actelion Drugs, provided reimbursement,
or possess the recovery rights to reimbursement for some or all of
the purchase price of the Actelion Drugs resulting from CVC's or
Adira's co-payment assistance";
And:
"All self-funded, third-party payors and related entities in the
United States and its territories that from at least January 1,
2014 through present, provided services, purchased the subject
pharmaceuticals, provided reimbursement, or possess the recovery
rights to reimbursement for some or all of the purchase price of
Actelion Drugs resulting from CVC's or Adira's co-payment
assistance." [GN]
BANCO POPULAR: Bid to Compel Lipsett to Arbitrate Claims Denied
---------------------------------------------------------------
In the case, FRANKIE LIPSETT, on behalf of himself and all others
similarly situated, Plaintiff v. BANCO POPULAR NORTH AMERICA d/b/a
POPULAR COMMUNITY BANK, Defendant, Case No. 22 Civ. 3901 (VM)
(S.D.N.Y.), Judge Victor Marrero of the U.S. District Court for the
Southern District of New York denies the Defendant's motion to
compel arbitration.
Banco Popular N.A. ("BPNA") seeks an order compelling Lipsett to
arbitrate his claims against it on an individual basis. On May 13,
2022, Lipsett brought the putative class action against BPNA
seeking monetary damages arising from BNPA's alleged "assessment
and collection of 'overdraft fees' on accounts that were never
actually overdrawn."
BPNA is a bank that provides retail banking services to consumers
and is headquartered in New York, New York. Lipsett opened an
account with BPNA on Aug. 9, 2004. Lipsett's use of his account is
governed by BPNA's Personal Banking Disclosure and Agreement
("PBD&A").
In 2004, the then-effective version of the PBD&A was the one dated
March 2002. The 2002 PBD&A did not contain any dispute resolution
provision, let alone a provision requiring mandatory arbitration.
BPNA amended the PBD&A in 2008. Unlike the March 2002 PBD&A, the
2008 version included an arbitration provision. The 2008 PBD&A's
arbitration provision also contained an opt-out clause.
About six years later, on Jan. 17, 2014, BPNA sent a notice to its
customers, including Lipsett. The 2014 Notice advised customers
that BPNA had made "modifications" to its customers' "initial
account disclosures as a result of changes in federal regulations,
state law and bank policy." The 2014 Notice also provided BPNA's
customers an opportunity to reject the Amended Account Agreement in
whole by closing their account. It enclosed the amended agreement
that would control Lipsett's relationship with BPNA.
In 2021, BPNA again amended its PBD&A. The 2021 PBD&A's arbitration
provision included amended language defining "Claim" but otherwise
substantively remained the same as the 2013-2014 PBD&A's provision,
including with respect to how new and existing customers could opt
out.
On Jan. 27, 2022, before the action was commenced, Lipsett's
attorney, Jeffrey D. Kaliel, mailed a letter to BPNA's Arbitration
Administrator Customer Care Center, as designated in the 2021
PBD&A, purporting to opt Lipsett out of the arbitration provision.
On May 17, 2022, after Lipsett filed the action, BPNA responded by
"electing to arbitrate the claims made" by Lipsett. In that letter,
BPNA disputed that Lipsett's Jan. 27, 2022 letter was timely and
asserted its belief that Lipsett remained subject to the
arbitration provision.
BPNA filed its motion to compel arbitration and brief in support on
Sept. 8, 2022. Lipsett opposed the motion on Oct. 13, 2022 and BPNA
filed its reply on Nov. 3, 2022. After considering the arguments,
the Court ordered the parties to submit supplemental briefing
addressing two issues: whether the 2014 and 2021 versions of BPNA's
deposit account agreements constituted a request to Lipsett to
enter into a new agreement, and the extent to which a party subject
to an agreement containing an arbitration provision with an opt-out
clause has a continuing obligation or opportunity to opt-out of
arbitration each time the contract is amended or whether the party
is bound by their assent to or rejection of arbitration at the
first instance the opt-out procedure is offered. The parties filed
their joint supplemental letter brief on Nov. 21, 2022.
BPNA argues that Lipsett is subject to the arbitration provision.
It also contends that Lipsett's claims are covered by the
arbitration provision, and, as a preliminary matter that the
question of arbitrability itself should be decided by an
arbitrator. Lipsett counters that no contract was formed with
respect to the arbitration provision. He argues that the addition
of the 2008 PBD&A's arbitration provision was non-binding because
it exceeded the scope of the 2002 PBD&A's provision that allowed
BPNA to "change" but not "add" terms to the PBD&A.
BPNA responds that Lipsett's arguments have already been rejected
by another court in this District, citing Valle v. ATM National,
LLC, in which a court in this District assessed and rejected
arguments similar to Lipsett's regarding the same change of terms
and arbitration provisions included in BPNA's 2013-2014 PBD&A at
issue. It asserts that Valle is controlling and that the Court
should follow Valle in finding that Lipsett assented to the
arbitration provision by continuing to use his account.
Judge Marrero first assesses whether a valid and enforceable
agreement to arbitrate exists between Lipsett and BPNA. He
concludes that because Lipsett had no meaningful opportunity to opt
out of arbitration in 2008, in other words to clearly manifest
assent to arbitration at that time, no contract to arbitrate was
formed. Accordingly, BPNA's addition of the arbitration provision
is invalid and not binding as to Lipsett. Because heso concludes,
Judge Marrero does not address the parties' remaining arguments
regarding the scope and arbitrability of the arbitration
provision.
For the reasons he stated, Judge Marrero denies BPNA's motion to
compel arbitration with Lipsett under the parties' bank deposit
agreements. He directs the Clerk to terminate the motion pending at
Dkt. No. 20. BPNA is directed to answer or otherwise respond to the
complaint within 21 days from the date of the Order.
A full-text copy of the Court's Dec. 9, 2022 Decision & Order is
available at https://tinyurl.com/59k6c73s from Leagle.com.
BESTCOMP INC: Louisiana Sup. Ct. Flips $5MM Award in Williams Suit
------------------------------------------------------------------
In the case, GEORGE RAYMOND WILLIAMS, M.D., ORTHOPAEDIC SURGERY, A
PROFESSIONAL MEDICAL LLC, ET AL. v. BESTCOMP, INC., ET AL., Case
No. 2022-C-00100, C/W No. 2022-C-00113 (La.), Judge Jay B. McCallum
of the Supreme Court of Louisiana:
a. reverses the court of appeal's judgment affirming the trial
court's order granting the Plaintiffs' motion for summary
judgment and awarding $5 million against both Chartis
Specialty Insurance Co. and Landmark American Insurance
Co.;
b. vacates the judgments of the lower courts; and
c. dismisses the case.
The consolidated matter arises from a class action for damages
filed by Louisiana health care providers for alleged violations of
the Preferred Provider Organizations ("PPO") statute. La. R.S.
40:2201, et seq. The Supreme Court granted writs to interpret the
statute and to determine whether Defendant Stratacare, Inc. is a
"group purchaser" subject to penalties for violating the mandatory
notice provision of the statute.
In 1984, the Louisiana Legislature enacted Chapter 12 of Title 40
of the Louisiana Revised Statutes of 1950 to establish the PPO
statute. The statute was passed in an attempt to reduce and contain
health care costs without jeopardizing: (1) the quality of patient
care and (2) the ability of health care providers to maintain,
update, and expand their facilities to serve their patients and
communities, and to meet federal and state standards and
regulations.
By the late 1990s, with the advent of computerized automated bill
review, "silent" PPOs flourished, causing significant problems for
providers. To address the lack of transparency posed by silent
PPOs, the legislature amended the PPO statute in 1999 to enact La.
R.S. 40:2203.1, effective for all PPOs on Jan. 1, 2001.
The amended statute requires all group purchasers to provide notice
to providers (through a benefit card or other written notice)
informing the providers that they are parties to the provider's PPO
network agreement. Non-silent PPOs are exempt from the notice
requirement under La. R.S. 40:2203. The amended statute allows
providers to institute an action to collect statutory damages and
attorney fees from a group purchaser who fails to comply with the
notice provisions.
BestComp established a PPO network pursuant to the PPO statute.
This network allows payors (including self-insureds, third party
administrators, and insurers) to access the network and pay
discounted rates for medical services performed by health care
providers who contract with BestComp.
The Plaintiffs, a certified class of health care providers4, filed
a petition for damages alleging that BestComp, as a "group
purchaser," failed to comply with the mandatory notice requirements
of La. R.S. 40:2203.1 B because it failed to provide a benefit card
at the time service was rendered or timely written notice. They
sought damages pursuant to La. R.S. 40:2203.1 G, which provides
that failure to follow the notice requirements "shall subject a
group purchaser to damages payable to the provider of double the
fair market value of the medical services provided, but in no event
less than the greater of fifty dollars per day of noncompliance or
two thousand dollars, together with attorney fees to be determined
by the court."
The Plaintiffs amended their petition to add Stratacare, a
technology company who licenses medical billing software and
provides bill review services, as an additional "group purchaser."
They alleged Stratacare entered into PPO agreements for PPO
discounts on its own behalf and on behalf of its clients.
Subsequently, the Plaintiffs amended their petition again to add
Defendants Chartis and Landmark, Stratacare's excess liability
insurers.
Chartis and Landmark filed motions for summary judgment, arguing
Stratacare is not a "group purchaser" under La. R.S. 40:2202(3)
and, thus, is not liable for damages. The Plaintiffs also filed a
motion for summary judgment, claiming Stratacare is a "group
purchaser" that applied PPO discounts to their medical bills by
virtue of its contract with BestComp, and a third-party defendant,
Rehab Review. Further, they contended the claims against Stratacare
are within the scope of their excess liability insurance policies
and liability exceeded the $5 million policy limits.
The trial court found Stratacare to be a "group purchaser" and,
thus, liable for damages for failing to provide mandatory notice
pursuant to the statute. It further found that the Plaintiffs
proved sufficient violations, with each violation supporting a
damage award of $2,000 pursuant to Subsection G. The trial court
relied upon an affidavit from the Plaintiffs' certified public
accountant, Mr. Robert A. Ehlers, who averred that he reviewed
Stratacare's corporate records and identified a total of 11,126 PPO
discounts taken by Rehab Review. The number of discounts multiplied
by 200 equaled $22,252,000, which exceeded the available $5 million
coverage of each excess insurance policy.
Therefore, the trial court granted the Plaintiffs' motion for
summary judgment and awarded $5 million against both Chartis and
Landmark. The court of appeal affirmed, specifically finding
Stratacare served as "all intermediary" within the meaning of the
statute. On the applications of Chartis and Landmark, the Supreme
Court granted writs and held oral argument to review the court of
appeal's judgment.
Judge McCallum states that there is no dispute that the Plaintiffs
qualify as "providers." It is also undisputed that Stratacare did
not have a contract with the Plaintiffs. The Plaintiffs' argument
that Stratacare is an additional "group purchaser" is premised on
two grounds: (1) the statutory scheme contemplates more than one
group purchaser and (2) the permissive part of the definition of
"group purchaser" as set forth in subsection (b) includes "other
intermediaries."
Both observations are true; nevertheless, they ignore the
additional statutory requirement that the contract or contracts be
entered into for the purpose of establishing a PPO. Judge McCallum
holds that the evidence in the record indicates that the contract
between BestComp and Stratacare never obligated Stratacare to
contact, negotiate, or contract with providers, nor did Stratacare
tender payment to them. Moreover, Stratacare had neither the
obligation, nor the ability, to issue benefit cards or provide
advance 30-day written notice. Thus, the very nature of
Stratacare's services is to generate recommendations regarding
payments based on the BestComp PPO rates after the medical services
have already been rendered and invoiced. It would lead to an absurd
result to hold Stratacare, and by extension its insurers, liable
for failing to provide notice before treatment was furnished.
Hence, according to Judge McCallum, the lower courts erred in
failing to give legal effect to the legislature's deliberate
omission, in failing to narrowly construe a punitive provision, and
in failing to apply a plain language interpretation of the statute.
Therefore, he finds Stratacare is not a "group purchaser."
Accordingly, Judge McCallum reverses the court of appeal, vacates
the judgments of the lower courts, and dismisses the case, finding
the statute not applicable to Stratacare or its insurers. All other
issues raised by Chartis and Landmark in their peremptory
exceptions are mooted by the instant decision.
A full-text copy of the Court's Dec. 9, 2022 Order is available at
https://tinyurl.com/y3k7zs69 from Leagle.com.
BG RETAIL: Fails to Pay Proper Wages, Zachary Suit Alleges
----------------------------------------------------------
TOVA ZACHARY, individually and on behalf of all others similarly
situated, Plaintiff v. BG RETAIL, LLC, Defendant, Case No.
7:22-cv-10521 (S.D.N.Y., Dec. 13, 2022) seeks to recover from the
Defendants unpaid wages and overtime compensation, interest,
liquidated damages, attorneys' fees, and costs.
Plaintiff Zachary was employed by the Defendant as staff.
BG RETAIL, LLC is engaged in the retainer store services featuring
footwear. [BN]
The Plaintiff is represented by:
Brett R. Cohen, Esq.
Jeffrey K. Brown, Esq.
Michael A. Tompkins, Esq.
LEEDS BROWN LAW, P.C.
One Old Country Road, Suite 347
Carle Place, NY 11514
Telephone: (516) 873-9550
BUILDING SERVICES: Guiracocha Sues Over Unpaid Overtime Wages
-------------------------------------------------------------
Maria Guiracocha, Benjamin Paredes, Hector Javier Santiago Lopez,
Jose Santiago Hernandez, Scarlet Alexandra Moran Fernandez, and
Deisy Lopez Gomez, individually and on behalf of others similarly
situated v. BUILDING SERVICES, INC. (D/B/A BUILDING SERVICES,
INC.), MICHAEL GOMEZ, and GUADALUPE CASTILLO, Case No.
1:22-cv-07533 (E.D.N.Y., Dec. 12, 2022), is brought for unpaid
overtime wages pursuant to the Fair Labor Standards Act of 1938,
and for violations of the New York Labor Law, including applicable
liquidated damages, interest, attorneys' fees and costs.
The Plaintiffs worked for the Defendants in excess of 40 hours per
week, without appropriate overtime compensation for the hours that
they worked. Furthermore, the Defendants failed to pay the
Plaintiffs wages on a timely basis. In this regard, the Defendants
have failed to provide timely wages to the Plaintiffs. The
Defendants' conduct extended beyond the Plaintiffs to all other
similarly situated employees. The Defendants maintained a policy
and practice of requiring the Plaintiffs and other employees to
work in excess of 40 hours per week without providing the overtime
compensation required by federal and state law and regulations,
says the complaint.
The Plaintiffs were employed as housekeepers by the Defendants.
The Defendants own, operate, or control a janitorial/housekeeping
service located in Huntington, New York, under the name "Building
Services, Inc."[BN]
The Plaintiffs are represented by:
Catalina Sojo, Esq.
CSM LEGAL, P.C.
60 East 42nd Street, Suite 4510
New York, NY 10165
Phone: (212) 317-1200
Facsimile: (212) 317-1620
CALIFORNIA FARMS MEAT: Nava Sues Over Unpaid Overtime Wages
-----------------------------------------------------------
Nubia Nava and Aida Ramos, as aggrieved employees, and on behalf of
all other aggrieved employees under the Labor Code Private
Attorneys' General Act of 2004 v. CALIFORNIA FARMS MEAT COMPANY,
INC., a California corporation; CITISTAFF SOLUTIONS, INC., a
California corporation; and DOES 1 through 100, inclusive, Case No.
22STCV38400 (Cal. Super. Ct., Santa Clara Cty., Dec. 9, 2022), is
brought against the Defendants for violations of the California
Labor Code by failing to pay the Plaintiff overtime wages.
The Defendants had and have a policy or practice of failing to pay
overtime wages to Plaintiffs and other Aggrieved Employees in the
State of California in violation of California state wage and hour
laws as a result of, without limitation, Plaintiffs and other
Aggrieved Employees working over 8 hours per day, 40 hours per
week, and/or 7straight workdays in a workweek without paying them
proper overtime wages, as a result of, without limitation, failing
to accurately track and/or pay for all minutes actually worked;
engaging, suffering, or permitting employees to work off the clock,
including, without limitation, by requiring employees: to go
through COVID-19 screenings and/or temperature checks off the
clock, to come early to work and leave late work without being able
to clock in for all that time, to remain on-call, to suffer under
Defendant's control due to long lines for clocking in and complete
pre-shift tasks before clocking in and post-shift tasks after
clocking out, to clock out for meal periods and continue working,
to don and doff uniforms and/or safety equipment off the clock, to
attend company meetings off the clock, to make phone calls or drive
off the clock; failing to include all forms of remuneration,
including non-discretionary bonuses, incentive pay, meal
allowances, and other forms of remuneration into the regular rate
of pay for the pay periods where overtime was worked and the
additional compensation was earned for the purpose of calculating
the overtime rate of pay; detrimental rounding of employee time
entries, editing and/or manipulation of time entries to show less
hours than actually worked, and for paying straight pay instead of
overtime pay, to the detriment of the Plaintiffs and other
Aggrieved Employees, says the complaint.
The Plaintiffs were employed by Defendants as a non-exempt
employee.
California Farms is a corporation organized and existing under and
by virtue of the laws of the State of California.[BN]
The Plaintiff is represented by:
David D. Bibiyan, Esq.
Jeffrey C. Bils, Esq.
Joshua Shirian, Esq.
BIBIYAN LAW GROUP, P.C.
8484 Wilshire Boulevard, Suite 500
Beverly Hills, CA 90211
Phone: (310) 438-5555
Fax: (310) 300-1705
Email: david@tomorrawlaw.com
jbils@tomorrowlaw.com
josh@tomorrowlaw.com
CANADA BREAD: Appeals Court Lacks Jurisdiction to Hear Ruling
-------------------------------------------------------------
Bernise Carolino, writing for Law Times, reports that the Ontario
Court of Appeal recently said that it lacked the jurisdiction to
hear an appeal from a certification decision since it was a
procedural order describing the constitution of the class for the
purposes of a certified class proceeding.
The plaintiffs filed a motion under s. 2(1) of Ontario's Class
Proceedings Act, 1992 (CPA). The motion sought an order under s. 5
of the CPA to certify a class proceeding alleging a widespread
price-fixing conspiracy by various producers and retailers of
manufactured packaged bread.
Justice Edward Morgan of the Ontario Superior Court of Justice
certified the proceeding against most of the named defendants. He
identified common issues relating to the plaintiff's various claims
and defined the class as all non-excluded Canadian residents who
directly or indirectly bought packaged bread from a defendant
retailer within the class period.
The plaintiffs wanted to appeal the motion judge's definition of
the class for the class action's purposes. The proposed appeal
argued that the class definition was inconsistent with the judge's
earlier reasons and was legally wrong, given the plaintiffs'
evidence.
The moving parties, who were some of the defendants in the
underlying action, moved to quash the plaintiffs' appeal of the
certification order. They contended that the appellate court lacked
the jurisdiction to hear the appeal.
Certification order not final
In David v. Loblaw Companies Limited, 2022 ONCA 833, the Ontario
Court of Appeal quashed the appeal.
First, the appellate court ruled that the CPA's appeal provisions
governed. The certification order was not a final order since it
did not expressly or impliedly decide the claims' ultimate merits,
the court said.
The motion judge never suggested that he was dismissing any part of
the potential plaintiffs' claims, the Court of Appeal noted.
Instead, he defined the class to reflect his understanding of the
nature and scope of the plaintiffs' allegations, the court said.
Counsel for Canada Bread Company, Limited, one of the defendants,
stated that the company was not arguing that res judicata or abuse
of process should bar anyone excluded from the defined class from
raising their claims in a proceeding that described the
conspiracy's nature and scope as including the excluded persons.
Second, the Court of Appeal held that the appeal provisions as they
existed before the CPA's 2020 amendments, including the former s.
30(2) of the CPA, were applicable to the appeal.
The transitional provision in s. 39(1) clearly showed that the
Legislature drew a line between class proceedings brought before
the effectivity of the 2020 amendments and proceedings initiated
after that date, the appellate court said. The language in s. 39(1)
did not suggest that the section was inapplicable to the CPA's
provisions governing rights of appeal, the court added.
Thus, an appeal from the certification order lay to the Divisional
Court with leave from a Superior Court judge, the Court of Appeal
concluded. [GN]
CEREBRAL INC: Bilbao Sues Over Unsolicited Text Messages
--------------------------------------------------------
Axel Bilbao, individually on behalf of all others similarly
situated v. CEREBRAL, INC., Case No. CACE-22-017977 (Fla. 17th Cir.
Ct., Broward Cty., Dec. 9, 2022), is brought against the Defendant
for the Defendant's violations of the Florida Telephone
Solicitation Act by engaging in unsolicited text messages.
The FTSA protects consumers from telemarketers who send them text
message advertisements involving an automated system for the
selection or dialing of telephone numbers ("Automated") without
first obtaining Prior Express Written Consent ("PEWC"). In direct
contravention of these protections, however, telemarketers such as
the defendant routinely send text message advertisements to
consumers while hiding behind telephone numbers that, when called
back, result in no connection between consumer and telemarketer (or
seller) whatsoever and send Automated Text Message Advertisement
without first obtaining PEWC. In order to combat this predatory
telemarketing behavior, the FTSA authorizes an award of damages
whenever a violation occurs and provides a private right of action
for statutory damages for each violation, says the complaint.
The Plaintiff's Cell Phone has been sent Automated Cerebral Text
Message Advertisements sporadically since July 1, 2021.
Cerebral is registered as a Foreign Profit Corporation, which owns
and operates an online platform, Cerebral.com, which services
people throughout Florida and the rest of the country.[BN]
The Plaintiff is represented by:
Joshua A. Glickman, Esq.
Shawn A. Heller, Esq.
SOCIAL JUSTICE LAW COLLECTIVE, PL
974 Howard Ave.
Dunedin, FL 34698
Phone: (202) 709-5744
Fax: (866) 893-0416
Email: josh@sjlawcollective.com
shawn@sjlawcollective.com
COMMONWEALTH OF MASSACHUSETTS: Bagni Files Suit in Mass. Super. Ct.
-------------------------------------------------------------------
A class action lawsuit has been filed against Commonwealth of
Massachusetts, et al. The case is styled as Allicia Bagni, on
behalf of Herself and all others similarly situated v. Commonwealth
of Massachusetts, Joseph D. McDonald, Jr., Sandra M Wright, Thomas
J. O'Brien, Case No. 2283CV00912 (Mass. Super. Ct., Plymouth Cty.,
Dec. 8, 2022).
The case type is stated as "Contract / Business Cases."
Massachusetts -- https://www.mass.gov/ -- officially the
Commonwealth of Massachusetts, is the most populous state in the
New England region of the Northeastern United States.[BN]
The Plaintiff is represented by:
Harold Lichten, Esq.
Matthew D. Patton, Esq.
LICHTEN AND LISS-RIORDAN P.C.
729 Boylston St., Suite 2000
Boston, MA 02116
CONSUMER REPORTS: Bid to Dismiss Wallen's First Amended Suit OK'd
-----------------------------------------------------------------
In the case, JAMES WALLEN, ROYCE LADER, RITA FAHRNER, LEEANN
BIDDIX, FRANK HIGHSMITH, JERRY HILL, HELEN KASSAMANIAN, and ERNEST
BRANIGH, individually and on behalf of all others similarly
situated, Plaintiffs v. CONSUMER REPORTS, INC., Defendant, Case No.
21 CV 8624 (VB) (S.D.N.Y.), Judge Vincent L. Briccetti of the U.S.
District Court for the Southern District of New York grants the
Defendant's motion to dismiss the first amended complaint.
The Plaintiffs bring the putative class action against the
Defendant, arising out of the Defendant's practice of renting or
exchanging data about its subscribers to third parties for profit,
including subscribers' names, titles of publications subscribed to,
and home addresses. They claim this practice misappropriates
subscribers' names, identities, or likenesses in violation of the
right of publicity statutes of Alabama, California, Hawaii,
Indiana, Nevada, Ohio, and Washington (together, the
"Misappropriation Statutes").
The Plaintiffs are residents of Alabama, California, Hawaii,
Indiana, Nevada, Ohio, and Washington and subscribers to the
Defendant's Consumer Reports magazines. They allege the Defendant
provides information about subscribers, including their names,
titles of publications subscribed to, and home addresses, to other
companies that aggregate this information with data about the
subscribers from other sources, such as sex, age, race, and
political party. The aggregated data is then returned to defendant
(the "Subscriber Lists"), which the Defendant sells, licenses,
exchanges, or rents to third parties for a "significant" profit.
The Defendant allegedly does not seek its subscribers' consent
before providing their names and identities on the Subscriber
Lists; thus, "customers remain unaware their identities are being"
disclosed.
Now pending is the Defendant's motion to dismiss the first amended
complaint.
First, the Defendant argues the alleged disclosure of the
Subscriber Lists is not a prohibited commercial use under the
Misappropriation Statutes.
Judge Briccetti agrees. He says each of the Misappropriation
Statutes prohibits certain commercial uses of names or likenesses
on or in a product, without consent. Thus, the Plaintiffs have not
stated a claim for relief under any of the Misappropriation
Statutes.
The Defendant then advances four reasons why its alleged
disclosures are not a proscribed commercial use under the
Misappropriation Statutes: (i) the subscribers' names are not used
to sell, endorse, or draw attention to anything; (ii) the
subscribers' names were not used "on or in" a product that is
separate or distinct from the names themselves; (iii) selling the
Subscriber Lists does not infringe on plaintiffs' property rights
in their identities; and (iv) the names were never used publicly.
Although he finds the Defendant's first three arguments
unpersuasive, Judge Briccetti agrees that the Plaintiffs have not
plausibly alleged their names were publicly used, as required by
each Misappropriation Statute at issue; thus, their claims must be
dismissed. He finds that (i) the Plaintiffs' allegations fit within
the plain meaning of the Misappropriation Statutes in that their
names appear on or in a product sold by the Defendant; (ii)
including the Plaintiffs' names on the Subscriber Lists is enough
under the Misappropriation Statute; (iii) the Plaintiffs plausibly
allege the infringement of property rights in their identities,
which are protected by the Misappropriation Statutes; and (iv)
private disclosure only to the third parties who purchase the
Subscriber Lists as publicity would transform the Misappropriation
Statutes into sweeping data privacy laws.
Drawing all reasonable inferences in the Plaintiffs' favor, Judge
Briccetti finds that Plaintiffs have not plausibly alleged the
Subscriber Lists publicly used their names and information.
Accordingly, he grants the motion to dismiss and dismissed the
Plaintiffs' claims. The Clerk is instructed terminate the motion
(Doc. #28) and close the case.
A full-text copy of the Court's Dec. 9, 2022 Order is available at
https://tinyurl.com/42yhwx5y from Leagle.com.
CVS PHARMACY INC: Krivca Sues Over False and Misleading Labeling
----------------------------------------------------------------
Erzen Krivca, individually and on behalf of all others similarly
situated v. CVS Pharmacy, Inc., Case No. 1:22-cv-10468 (S.D.N.Y.,
Dec. 12, 2022), is brought seeking damages and an injunction to
stop the Defendant's false and misleading labeling practices with
regard to its toothpaste promoted as "Fluoride Free" and
"Antiplaque & Whitening" that is "Certified Natural" under the CVS
Health brand ("Product").
Based on the statements, "Fluoride Free" and "Antiplaque,"
consumers like the Plaintiff expected the Product would contain
fluoride alternative ingredients to remove or reduce plaque to
affect gingivitis. While the ingredients do not include fluoride,
they do not contain any comparable active ingredients which remove
or reduce plaque, thereby preventing gingivitis, by non-mechanical
means.
Though the first ingredient, dicalcium phosphate dihydrate, has
been shown to reduce supragingival plaque and gingivitis more
significantly than when brushing only with water, this was due to
its function as an abrasive to assist plaque removal. The FDA has
concluded that dicalcium phosphate dihydrate is not effective for
use as an antigingivitis agent because there is no evidence that it
chemically interferes with plaque formation or removal. The eighth
ingredient, sodium bicarbonate, has been shown to exert an
antibacterial action on several oral microorganisms, but only in
high dosages and with extended exposure time. When used in
toothpaste, sodium bicarbonate is not effective at reducing plaque
or gingivitis.
Consumers buying the Product expect it will contain non-fluoride
ingredients that have a therapeutically significant effect in
reducing plaque and acting against gingivitis. While the label is
permitted to describe the Product's antiplaque ability, related to
its abrasive ingredient, the "fluoride free" claim tells consumers
that its antiplaque qualities will be based on fluoride
alternatives, when this is false. The Product's ingredients are not
capable of achieving a clinically significant reduction in
gingivitis. Consumers are misled to expect not only will the
Product be "antiplaque," but that it will effect gingivitis when
this is false.
The Product is promoted as "Certified Natural" by the Natural
Products Association ("NPA"), whose standard requires "The Product
must be made up of 95 percent truly natural ingredients or
ingredients that are derived from natural sources, excluding
water." The representation that the Product is "natural" is
misleading. Consumers understand the front label statement of
"Certified Natural" to mean all the ingredients are natural. Only
if they turn around the package will they see the NPA definition
that is inconsistent with their expectations. This is because it
allows for five percent non-natural ingredients and considers
ingredients derived from natural sources as natural. Consumers
expect that natural ingredients will not just be derived from
natural sources, but subject to minimal processing.
The front label picture of peppermint is misleading because the
ingredient list does not indicate peppermint oil or peppermint
extract. To the extent the Product contains any peppermint, the
amount is de minimis or negligible as part of the "Flavor"
ingredient.
The Product contains other representations and omissions which are
false and misleading. As a result of the false and misleading
representations, the Product is sold at a premium price,
approximately no less than $4.99 for 5.5 oz, excluding tax and
sales, says the complaint.
The Plaintiff purchased the Product at CVS locations in New York
City.
CVS Pharmacy, Inc. manufactures, labels and sells toothpaste.[BN]
The Plaintiff is represented by:
Spencer Sheehan, Esq.
SHEEHAN & ASSOCIATES, P.C.
60 Cuttermill Rd Ste 412
Great Neck NY 11021
Phone: (516) 268-7080
Email: spencer@spencersheehan.com
D'ADDARIO & COMPANY: Tenzer-Fuchs Files ADA Suit in E.D. New York
-----------------------------------------------------------------
A class action lawsuit has been filed against D'addario & Company,
Inc. The case is styled as Michelle Tenzer-Fuchs, on behalf of
herself and all others similarly situated v. D'addario & Company,
Inc., Case No. 2:22-cv-07490 (E.D.N.Y., Dec. 9, 2022).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
D'Addario -- https://www.daddario.com/ -- is a family-owned and
operated American multinational company that specializes in musical
instrument accessories headquartered in Farmingdale, Long Island,
New York.[BN]
The Plaintiff is represented by:
Jonathan Shalom, Esq.
SHALOM LAW, PLLC
105-13 Metropolitan Avenue
Forest Hills, NY 11375
Phone: (718) 971-9474
Email: jonathan@shalomlawny.com
DARON WORLDWIDE: Fagnani Files ADA Suit in S.D. New York
--------------------------------------------------------
A class action lawsuit has been filed against Daron Worldwide
Trading, Inc. The case is styled as Mykayla Fagnani, on behalf of
herself and all other persons similarly situated v. Daron Worldwide
Trading, Inc., Case No. 1:22-cv-10463 (S.D.N.Y., Dec. 9, 2022).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Daron Worldwide Trading, Inc. -- https://www.daronwwt.com/ -- is
America's largest source of aviation related collectibles and
transportation themed toys.[BN]
The Plaintiff is represented by:
Michael A. LaBollita, Esq.
GOTTLIEB & ASSOCIATES
150 E. 18 St., Suite PHR
New York, NY 10003
Phone: (212) 228-9795
Email: michael@gottlieb.legal
DELAWARE: Court Denies Bid Class Certification in Crichlow Suit
---------------------------------------------------------------
In the case, KENIO CRICHLOW, Plaintiff v. DELAWARE DEPARTMENT OF
CORRECTION, et al., Defendants, Civil Action No. 22-272-RGA (D.
Del.), Judge Richard G. Andrews of the U.S. District Court for the
District of Delaware:
a. denies Crichlow's request for counsel without prejudice to
renew; and
b. denies Crichlow's motion for class certification.
Crichlow requests counsel on the grounds that he is unable to
afford counsel, he has been unsuccessful in his attempts to retain
pro bono counsel, the case is complex, he has filed a motion for
class certification, he has limited access to legal materials and
no ability to investigate, the case will require discovery and
expert medical testimony, and he is hampered by medical problems
arising from his contraction of COVID-19 in April 2020.
Judge Andrews states that a pro se litigant proceeding in forma
pauperis has no constitutional or statutory right to representation
by counsel. However, representation by counsel may be appropriate
under certain circumstances, after a finding that a plaintiff's
claim has arguable merit in fact and law. After passing this
threshold inquiry, courts should consider a number of factors when
assessing a request for counsel.
The factors to be considered by a court in deciding whether to
request a lawyer to represent an indigent plaintiff include: (1)
the merits of the plaintiff's claim; (2) the plaintiff's ability to
present his or her case considering his or her education, literacy,
experience, and the restraints placed upon him or her by
incarceration; (3) the complexity of the legal issues; (4) the
degree to which factual investigation is required and the
plaintiff's ability to pursue such investigation; (5) the
plaintiff's capacity to retain counsel on his or her own behalf;
and (6) the degree to which the case turns on credibility
determinations or expert testimony.
Assuming, solely for the purpose of deciding this motion, that
Crichlow's claims have merit in fact and law, Judge Andrews finds
that several of the Tabron factors militate against granting his
request for counsel at this time. Based on his review of the
complaint, which centers on a two block march by 21 inmates, who
had tested positive for COVID-19, in the pouring rain on April 30,
2020, the case is not complex, and Crichlow appears to have the
ability to present his claims. In addition, he says the case is in
its very early stages.
As noted, Crichlow alleges that he was among a group of 21 inmates
who were forced in April 2020 to walk in the rain after testing
positive for COVID-19. In his motion, Crichlow seeks to certify a
"class composed of 21 inmates who currently or were required to
walk a distance of about two blocks in drenching rain pushing carts
containing their personals," after testing positive for COVID-19,
with many being severely ill.
Four prerequisites must be met to obtain certification of a class:
(1) the class is so numerous that joinder of all members is
impracticable; (2) there are questions of law or fact common to the
class; (3) the claims or defenses of the representative parties are
typical of the claims or defenses of the class; and (4) the
representative parties will fairly and adequately protect the
interests of the class.
Judge Andrews concludes that joinder would not be impracticable,
noting in particular that judicial economy and Crichlow's 20 fellow
inmates' ability and motivation to litigate as joined plaintiffs
would not be impediments, that there is little to no geographic
dispersion of the inmates, that there is no need to identify future
claimants, and that Crichlow's complaint seeks damages in addition
to injunctive relief.
Furthermore, regarding the fourth and final prerequisite for
certifying a class, adequacy of representation, Judge Andrews notes
that Crichlow is an incarcerated individual and he appears pro se.
Crichlow may not represent other Plaintiffs or proceed as the class
representative. He denies Andrews' request for counsel. Inasmuch as
Crichlow proceeds pro se, he concludes that class certification is
inappropriate for this additional reason.
A full-text copy of the Court's Dec. 9, 2022 Memorandum Order is
available at https://tinyurl.com/yc2bezr9 from Leagle.com.
DEMERT BRANDS: Evans Files Suit in N.D. Illinois
------------------------------------------------
A class action lawsuit has been filed against DeMert Brands, LLC.
The case is styled as Emily Evans, individually and on behalf of
all others similarly situated v. DeMert Brands, LLC, Case No.
1:22-cv-06300 (N.D. Ill., Nov. 10, 2022).
The nature of suit is stated as Other Fraud.
DeMert Brands, Inc. -- https://www.demertbrands.com/ --
manufactures and distributes cosmetic products. The Company
provides beauty and cosmetic products for men and women.[BN]
The Plaintiff is represented by:
Carl V. Malmstrom, Esq.
WOLF HALDENSTEIN ADLER FREEMAN & HERZ LLC
111 W. Jackson Blvd., Suite 2122, Ste. 1700
Chicago, IL 60604
Phone: (312) 984-0000
Fax: (212) 686-0114
Email: malmstrom@whafh.com
DOWNER EDI: Class Action Lawyers Mull Suit Following Stock Plunge
-----------------------------------------------------------------
Jenny Wiggins, writing for Australian Financial Review, reports
that class action lawyers are investigating whether they can pursue
cases against Downer EDI after the contractor's stock plummeted
following revelations of accounting discrepancies and a profit
warning.
Slater and Gordon class actions associate Eleanor Toohey said
Downer's disclosure that pre-tax earnings had been overstated by
$30 million to $40 million was concerning for shareholders, who
were "entitled to assume that a public company's financial
statements are accurate."
"Slater and Gordon is considering whether Downer EDI's conduct
gives rise to an actionable case on behalf of investors and will
continue to monitor developments closely," Ms. Toohey said.
Maurice Blackburn said it was also reviewing developments linked to
Downer's announcement, which included the company cutting its
full-year profits guidance.
"While those efforts are at an early stage, this includes
investigating whether those impacted may be entitled to
compensation," a spokeswoman for Maurice Blackburn Lawyers said.
A third law firm said it was analysing the fall in Downer's share
price and examining how the accounting irregularities were related
to the company's earnings downgrade.
Downer's biggest investors in the most recent financial year were
Aware Super, which held 6.5 per cent of the company as of June 30,
and Tyndall Asset Management, which held a similar amount. Both
Aware Super and Tyndall declined to comment.
Downer did not reveal its accounting issues immediately after
discovering them a week ago because the information it was given
was "insufficiently definite," the company has told the Australian
Securities Exchange.
The services group's share price tumbled almost 25 per cent on Dec.
8 and Dec. 9 after it revealed on Dec. 8 that pre-tax earnings had
been overstated over the past four financial years due to
misreporting of revenues and work-in-progress (which reflects the
costs of completing a contract.)
Downer's shares rebounded only slightly on Dec. 12, rising 1¢ to
close at $3.71.
Downer's senior management team was informed on the evening of
Monday December 5 that the company's utilities business was
carrying an amount of work in progress (WIP) on a particular
contract that had "likely been overstated," the company told the
ASX in response to questions about its share price plunge.
But at the time, the information was "confidential, comprised
supposition, and was insufficiently definite," Downer said.
The amount of overstated WIP was "difficult to assess" on work
orders that were not yet completed and the company needed to
investigate the reasons for and extent of any overstatement, Downer
said.
Downer did detailed investigations on Dec. 6 and Dec. 7, and on
Dec. 7 also analysed its trading results for October and November
and forecast for December.
"As a result of this investigation and analysis, after the close of
the market on Wednesday, 7 December 2022 and based on the
information currently available, it was concluded that there were
accounting irregularities in Downer's Australian utilities business
of the kind described in the announcement and a need to give the
trading update contained in the announcement," Downer said.
The company is doing a detailed internal investigation with the
support of an external accounting specialist, including examining
whether there was any fraud.
Downer has diversified away from big construction projects in
recent years to focus on more stable urban services contracts,
which require the company to invest less capital and provide more
reliable revenue streams.
But on Dec. 8, Downer cut its full-year earnings guidance for
underlying net profit after tax and amortisation to between $210
million and $230 million, blaming "difficult weather conditions and
elevated cost to serve issues".
The guidance includes an $8 million to $10 million impact from the
accounting issues in the current financial year, but does not
include the financial impact of the irregularities in previous
years. [GN]
ECCO RETAIL: Amort Suit Remanded to San Mateo Superior Court
------------------------------------------------------------
In the case, WILLIAM M. AMORT, Plaintiff v. ECCO RETAIL, LLC, et
al., Defendants, Case No. 22-cv-05812-DMR (N.D. Cal.), Judge Donna
M. Ryu of the U.S. District Court for the Northern District of
California grants the Plaintiff's motion to remand to the Superior
Court of the State of California for the County of San Mateo.
Amort filed the putative wage and hour class action in San Mateo
County Superior Court against ECCO Retail; ECCO USA, Inc.; and
ECCO. The Defendants subsequently removed the case to federal
court, invoking the Class Action Fairness Act of 2005 ("CAFA"), 28
U.S.C. Section 1332(d). The Plaintiff now moves to remand. The
Defendants move pursuant to Federal Rules of Civil Procedure
12(b)(2) and 12(b)(6) to dismiss the complaint.
The Plaintiff filed the class action in San Mateo County Superior
Court on July 27, 2022, alleging violations of the California Labor
Code. He seeks damages for unpaid compensation, statutory
penalties, and injunctive relief, among other forms of relief, on
behalf of a putative class of the Defendants' current and former
non-exempt employees in California.
The Plaintiff defines the putative class as follows: "all
California citizens currently or formerly employed by the
Defendants as non-exempt employees in the State of California at
any time between Jan. 23, 2018 and the date of class
certification." He also defines a "Waiting Time Subclass" as "all
members of the Class who separated their employment with Defendant
at any time between Jan. 23, 2019 and the date of class
certification."
The Plaintiff asserts nine claims for relief: (1) failure to pay
minimum wage in violation of California Labor Code sections 1194,
1194.2, and 1197; 2) failure to pay overtime in violation of Labor
Code sections 510, 1194, and 1198; (3) failure to provide meal
periods in violation of Labor Code sections 226.7 and 512; (4)
failure to permit rest breaks in violation of Labor Code section
226.7; (5) failure to reimburse for business expenses in violation
of Labor Code sections 2800 and 2802; (6) failure to provide
accurate and itemized wage statements in violation of Labor Code
section 226(a); (7) failure to timely pay wages in violation of
Labor Code sections 204 and 210; (8) failure to pay all wages due
at termination in violation of Labor Code sections 201, 202, and
203; and (9) violation of California Business and Professions Code
sections 17200 et seq.
The Defendants timely removed the complaint, invoking the CAFA
jurisdiction. In support of removal, it submitted a declaration by
Stacy Holtzclaw. Holtzclaw is ECCO Retail's Human Resources Manager
- Retail Division. Holtzclaw made certain assertions about the size
of the putative class, the average regular rate of pay for
non-exempt employees in California during the relevant time period,
and the number of workweeks and pay periods during the relevant
time period. Based on this evidence, the Defendants originally
estimated that the value of certain class claims is at least
$7,001,708.60, which exceeds the $5 million jurisdictional minimum
under CAFA.
The Plaintiff moves to remand the action, arguing that the
Defendant has failed to establish that the amount in controversy
exceeds the $5,000,000 jurisdictional minimum. The Defendants move
pursuant to Rules 12(b)(2) and 12(b)(6) to dismiss the complaint.
Judge Ryu concludes that the Defendants have not supported their
estimates of the amounts in controversy pertaining to the meal
period and rest break claims or the waiting time penalties claim.
Moreover, the parties agree that the amount in controversy for
attorneys' fees is 25% of the overall claimed amount in
controversy.
Therefore, the Defendants have established only the following
amounts: unpaid minimum wages and liquidated damages of $716,134
and wage statement penalties of $906,150, for a total of
$1,622,284. An award of attorneys' fees equivalent to 25% of the
supported amount in controversy (25% of $1,622,284) equals
$405,571, for a total supported amount in controversy of
$2,027,855, which is far short of the $5 million threshold required
by CAFA.
As the Defendants have failed to prove by a preponderance of the
evidence that the amount in controversy exceeds $5 million, the
Court lacks jurisdiction over this case under CAFA. Judge Ryu
grants the Plaintiff's motion to remand and denies as moot the
Defendants' motion to dismiss. The case is remanded to San Mateo
County Superior Court.
A full-text copy of the Court's Dec. 9, 2022 Order is available at
https://tinyurl.com/ye9jc8da from Leagle.com.
EPIC GAMES: Fortnite Video Game Addictive for Children, Suit Claims
-------------------------------------------------------------------
Stephen Fenech, writing for TechGuide, reports that Epic Games, the
company behind the wildly successful Fortnite game, is being sued
in the Canadian Supreme Court by group of parents who say the game
is too addictive for their children.
Justice Sylvain Lussier has agreed to allow the class action to
proceed after hearing from three parents who described their
children's symptoms of dependence after they played the game.
"The court concludes that there is a serious issue to be argued,
supported by sufficient and specific allegations as to the
existence of risks or even dangers arising from the use of
Fortnite," the judge ruled.
The judge also said the action "does not appear frivolous or
manifestly ill-founded".
There are more than 250 million registered users playing Fortnite
around the world since its release in 2017 and it is rated as
suitable for teenage players.
One of the parents involved in the suit said their son had played
6,923 games and became enraged when his parents tried to restrict
his screen time.
Another child reportedly played more than 7,700 times in two years
for a minimum of three hours a day.
Both children were reported to now have behavioural issues.
The lawsuit is alleging Epic Games deliberately designed Fortnite
to create a dependency among users to continue to play but without
providing warnings about the risks of addiction.
Epic Games legal representatives said the evidence provided by
parents was insufficient while also pointing out that video game
dependence is not a condition recognised in Quebec where the matter
is being heard.
The American Psychiatric Association also says there is
insufficient evidence to put this in the same category as a mental
disorder.
According to CTV News, attorney Alessandra Esposito Chartrand says
Epic games created Fortnite after years of development and even
hired psychologists to make the game as addictive as possible.
"These games are created with algorithms and dark patterns that are
made to addict you," she said.
"And once the pattern starts it's very, very, very hard to get out
of it."
"There's something about Fortnite that is completely unique. There
are no other games that have therapy centres dedicated to players
of that game."
The World Health Organisation has recognised video game addiction
as a mental health disorder.
Epic Games has vowed to fight the lawsuit in court and said in a
statement: "We have industry leading parental controls that empower
parents to supervise their child's digital experience." [GN]
EQUIFAX CANADA: Hoskin & Harcourt Discusses Data Breach Suit Ruling
-------------------------------------------------------------------
Robert Carson and Simon Cameron, Esq., of Osler, Hoskin & Harcourt
LLP, in an article for Mondaq, report that in 2021, the law firm
reported that courts across the country exercised their gatekeeping
role to bring an end to data breach class actions that lacked
evidence of harm to the proposed class members. Ontario courts also
confirmed significant limitations on the intrusion upon seclusion
tort, holding that it does not apply where a defendant merely
failed to prevent a hacking incident. In 2022, in a significant
victory for "database defendants," the Court of Appeal for Ontario
upheld this reasoning.
Many plaintiffs' lawyers now appear to be shifting their focus, at
least in part, away from traditional data breach claims. Common
allegations in new class action filings ranged from misuse of
information to a lack of protections for children and teenagers who
use online services. Canadian courts are also continuing to
consider and grapple with potential new privacy torts.
The Court's decision is a significant vindication of the rights of
database defendants.
Wither intrusion upon seclusion?
In 2021, the Ontario Divisional Court decided in Owsianik v.
Equifax Canada Co. (Owsianik) that the tort of intrusion upon
seclusion was not available in data breach cases where the
information at issue was hacked by a malicious third party and the
defendant merely failed to prevent the intrusion. In November 2022,
the Court of Appeal for Ontario decided the appeals in Owsianik and
other cases involving the tort.
The Court's decision is a significant vindication of the rights of
database defendants. It is also an important articulation of the
limits of the tort of intrusion upon seclusion and any other novel
privacy torts.
The Court reasoned that there are three components to the tort of
intrusion upon seclusion. First there is a conduct component, which
requires the defendant to have invaded or intruded upon the
plaintiff's private affairs or concerns without lawful excuse.
Second, there is a state of mind requirement, which stipulates that
the intrusion must have been done intentionally or recklessly.
Finally, there must be consequences from the intrusion. This
requires that a reasonable person would regard the intrusion as
highly offensive, causing distress, humiliation or anguish. The
Court found that, where information in the possession of a database
defendant is accessed by a third-party hacker, the conduct
component of the tort is not fulfilled for the database defendant
as the database defendant cannot be said to have "invaded or
intruded."
The decision is a notable victory for defendants. The plaintiffs
had argued that the tort of intrusion upon seclusion was necessary
for privacy class actions because "the remedies available in
contract and negligence require proof of pecuniary loss." The Court
expressly rejected this logic, holding that "[it] is true that the
inability to claim moral damages may have a negative impact on the
plaintiffs' ability to certify the claim as a class proceeding. In
my view, that procedural consequence does not constitute the
absence of a remedy. Procedural advantages are not remedies."
Earlier this year – before the release of the Owsianik decision
– several courts had grappled with the nature and limits of the
tort of intrusion upon seclusion. For example, in Stewart v. Demme,
the Ontario Divisional Court overturned an earlier decision
certifying a class proceeding based on the tort of intrusion upon
seclusion. The Divisional Court held that the case should not have
been certified where a hospital employee had only "fleeting and
incidental" access to health information in the course of another
allegedly wrongful act.
In a separate decision, the Court of Appeal for Ontario rejected
the same employee's appeal from a denial of insurance coverage. In
so doing, the Court found that the insurance policy's intentional
act exclusion applied to the claims that the employee had committed
the tort of intrusion upon seclusion. The Court found that the
exclusion applied regardless of whether the pleading was of an
"intentional" or "intentional or reckless" intrusion.
In Campbell v. Capital One Financial Corporation, the B.C. Supreme
Court certified a class action arising from a data breach. Despite
certifying the action, the court declined the plaintiff's request
to revisit B.C. jurisprudence that held that the tort of intrusion
upon seclusion had been ousted by the provincial Privacy Act. We
previously reported on the parallel Ontario action, which was
dismissed.
In Sweet v. Canada, the Federal Court certified a privacy class
action brought against the Government of Canada by taxpayers whose
CRA MyAccount pages were accessed in attacks by a third party. The
Federal Court found that the plaintiffs' allegations of
recklessness in that case were sufficient to certify an intrusion
upon seclusion claim, finding the application of the tort to
database defendants was not "bound to fail."
Employer vicarious liability
Class actions in which the plaintiffs allege that an
employer-defendant is liable for the wrongdoing of an employee are
becoming increasingly common. These cases may become even more
prominent given the Ontario jurisprudence limiting the application
of the tort of intrusion upon seclusion.
For example, in Ari v. ICBC, the B.C. Supreme Court granted summary
judgment on certain certified legal issues in a factually
remarkable privacy class action. The defendant, the Insurance
Company of British Columbia (ICBC), operates B.C.'s public vehicle
insurance scheme. The ICBC had employed an adjuster who, for pay,
looked up and provided address information associated with licence
plates provided by a third party. Unbeknownst to the adjuster, the
third party was acting on behalf of a fourth party who had a
drug-induced paranoid belief that he was being targeted by the
Justice Institute of British Columbia and had observed the licence
plate numbers in the Justice Institute parking lot. The fourth
party subsequently carried out arson and shooting attacks on
certain of the addresses. He was sentenced to a substantial prison
term.
This interesting fact pattern resulted in a class action proceeding
against the ICBC. In its decision, the B.C. Supreme Court found
that the plaintiff had established that the adjuster had breached
the Privacy Act. The Court also found that, although the ICBC
itself was innocent, it was vicariously responsible for the
adjuster's misconduct because her conduct fell within an area of
risk that was created by the ICBC's collection of information. The
Court further rejected the ICBC's argument that the attacks by the
fourth party were unforeseeable or a novus actus interveniens.
The certification requirement of 'some basis in fact' remains a
meaningful hurdle in privacy class actions
Courts across the country continue to confirm that plaintiffs in
privacy actions cannot obtain certification without evidence that
the proposed class was actually affected by the alleged breach of
privacy. Two examples involve claims against Facebook, Inc.
In the first case, Simpson v. Facebook, Inc., the plaintiff alleged
that a third party named Cambridge Analytica had obtained
information about Facebook users from a third-party application
developer. The Ontario Superior Court of Justice dismissed the
plaintiff's certification motion on the basis that there was no
evidence that any Canadian user data was shared with Cambridge
Analytica. As a result, there was no justification for a class
proceeding.
In upholding this decision on appeal, the Divisional Court
emphasized that the plaintiffs bore an evidentiary burden to show
"that a common issue exists beyond a bare assertion in the
pleadings." Osler defended Facebook in this action.
In Chow v. Facebook, Inc., the B.C. Supreme Court declined to
certify a case in which the plaintiffs alleged that Facebook
misused call and text log data from users of its Messenger
application on Android phones. The Court found that plaintiffs had
failed to establish any basis in fact for their allegations that
Facebook "collected, used, retained and commercialized call and
text data and profited from that collection at users' expense."
Absent a basis for the allegations there was similarly no
justification for a class proceeding. Osler also defended Facebook
in this action.
A pivot away from data breach claims
We have previously reported that plaintiffs are increasingly
bringing class actions alleging that the defendants misused or
improperly collected data, rather than claims that they were
victims of a data breach. Numerous misuse of data cases were
commenced in 2022. These include a series of class actions alleging
improper sharing of information regarding new mothers by the
provincial governments. We also saw a number of prominent
data-misuse settlements in 2022, including settlements concerning
the allegedly improper collection and use of geolocation
information. The Owsianik decision will likely contribute to this
trend.
Conclusion
Despite the proliferation of privacy class action filings, courts
across Canada continue to make it clear that certification is not a
rubber stamp and that it will not automatically follow from a data
breach or incident. Courts expect plaintiffs to show that they were
actually affected by the incident. While it remains critical for
businesses to respond quickly and effectively when data incidents
occur, defendants have a variety of tools to defend privacy claims
or to resolve them early on. It can be valuable to seek early
advice on how best to implement such tools in circumstances where
there is a risk of a class action or where a claim is commenced.
[GN]
ETHEREUMMAX: Judge Tosses Fraud Class Suit Involving Celebrities
----------------------------------------------------------------
Brayden Lindrea, writing for Coin Telegraph, reports that a federal
judge in California has dismissed a class action lawsuit against
reality TV star Kim Kardashian, boxing champ Floyd Mayweather and
the founders of EthereumMax, explaining that the submissions failed
to meet the "heightened pleading standards" for fraud claims.
The judge has, however, left room for the plaintiffs to refile the
lawsuit if certain provisions are amended.
In the original Jan. 7 court filing by Scott+Scott Attorneys At
Law, the plaintiffs argued that Kardashian, Mayweather and former
NBA superstar Paul Pierce didn't disclose they were being paid to
promote EthereumMax (EMAX).
The plaintiffs alleged that they used "false or misleading
statements" to "artificially inflate the price of the token."
Kardashian promoted EMAX in a June 2021 post on Instagram, while
Mayweather wore the EMAX logo on his boxing trunks in a match
against YouTube star Logan Paul that same month.
According to reports, Judge Michael Fitzgerald dismissed the
lawsuit Dec. 7 on the grounds that the fraud allegations lacked
merit and that investors at the end of the day have a
responsibility to conduct due diligence on their investments:
"But, while the law certainly places limits on those advertisers,
it also expects investors to act reasonably before basing their
bets on the zeitgeist of the moment."
However, Judge Fitzgerald acknowledged in his dismissal the power
that celebrities have been afforded by new technologies and social
media platforms in establishing potentially fraudulent promotional
schemes.
"This action demonstrates that just about anyone with the technical
skills and/or connections can mint a new currency and create their
own digital market overnight," Fitzgerald reportedly wrote in his
dismissal.
Celebrities now have the ability to "readily persuade millions of
undiscerning followers to buy snake oil with unprecedented ease and
reach," he added.
Despite the dismissal, the investors' fight may not be over.
Fitzgerald reportedly stated that he'd allow the plaintiffs to
refile the lawsuit if their legal team amended a few provisions
from its original filing, with the judge making reference to a
provision of the Racketeer Influenced and Corrupt Organizations Act
(RICO).
Kardashian has already been bitten once before over her promotion
of EthereumMax on her social media account.
On Oct. 3, Kardashian reached a $1.26 million settlement with the
U.S. Securities Exchange Commission after allegedly failing to
disclose she was paid $250,000 to promote EthereumMax.
Mayweather's legal team has long denied any affiliation with the
EthereumMax, with his attorneys stating that the filing did not
"identify a single statement made by Mayweather about eMax tokens
or EthereumMax." [GN]
EXTENDED STAY AMERICA: Brittian Sues Over Denied Refund
-------------------------------------------------------
Latreass ("Lisa") Brittian, individually, and on behalf of all
others similarly situated v. EXTENDED STAY AMERICA, INC.; ESA
MANAGEMENT, LLC; EXTENDED STAY AMERICA SUITES – TWC NORCROSS LLC;
THREE WALL CAPITAL, LLC; and AIMBRIDGE HOSPITALITY, LLC, Case No.
3:22-cv-00663-MOC-DCK (W.D.N.C., Dec. 12, 2022), is brought of
similarly situated individuals who prepaid for a reservation at an
Extended Stay America hotel, were denied accommodation in the
prepaid hotel room, and whose prepayment was not refunded.
Extended Stay America guests have the option of guaranteeing a room
with a credit card or prepaying for a reservation. If a guest
guarantees a room with a credit card, the reservation is cancelable
up until 6 pm of the first night of the reservation. Prepaid
reservations are nonrefundable. Extended Stay America hotels
utilize a central reservation system. The central reservation
system automatically deems a reservation a "no show" and cancels
the reservation if a guest who has not canceled the reservation by
6 pm is not checked in on the first day of the reservation. If the
reservation was guaranteed by a credit card, the credit card is
charged a no-show fee of one night's stay.
If a guest who has prepaid for a reservation is not checked in on
the first day of their prepaid reservation, the reservation system
also automatically deems the prepaid reservation a no-show and
cancels the reservation. If the guest attempts to check-in to their
prepaid hotel room after the reservation system has automatically
deemed their reservation a no-show and cancelled the reservation,
the guest is denied accommodation at the hotel. Since the prepaid
reservation is also nonrefundable, the guest is not refunded the
prepaid amount.
Similarly, if the guest is already staying at the hotel and extends
their stay by prepaying for another reservation but is not
checked-in to the prepaid reservation in the reservation system on
the first day of the prepaid reservation, the reservation system
automatically deems the reservation a no show and cancels the
reservation. The guest is asked to vacate the room and is denied a
refund because the prepaid reservation is nonrefundable.
The Plaintiff extended her stay by prepaying $1,777.50 for a second
reservation from January 11, 2022 through February 8, 2022. The
Plaintiff was designated a "no show" for her second reservation by
the ESA computer system, was told her reservation could not be
accommodated because she was a "no show" and was told to vacate the
hotel room. Although the Extended Stay America hotel denied the
Plaintiff accommodation at the hotel, the Extended Stay Hotel
retained the Plaintiff's prepaid lodging fee of $1,777.50 and
refused to refund the prepaid reservation, says the complaint.
The Plaintiff was a guest at the Extended Stay America hotel
located in Norcross, Georgia from December 14, 2021 through January
11, 2022.
Extended Stay America is the largest integrated owner/operator of
company-branded hotels in North America.[BN]
The Plaintiff is represented by:
Scott C. Harris, Esq.
MILBERG COLEMAN BRYSON PHILLIPS GROSSMAN, PLLC
900 W. Morgan Street
Raleigh, NC 27603
Phone: (919) 600-5000
Facsimile: (919)600-5035
Email: sharris@milberg.com
- and -
James M. Evangelista, Esq.
Kristi Stahnke McGregor, Esq.
EVANGELISTA WORLEY, LLC
500 Sugar Mill Road, Suite 245A
Atlanta, GA 30350
Phone: (404) 205-8400
Facsimile: (404) 205-8395
Email: jim@ewlawllc.com
kristi@ewlawllc.com
FAIRFIELD COLLECTIBLES: Fagnani Files ADA Suit in S.D. New York
---------------------------------------------------------------
A class action lawsuit has been filed against Fairfield
Collectibles Of Georgia, LLC. The case is styled as Mykayla
Fagnani, on behalf of herself and all other persons similarly
situated v. Fairfield Collectibles Of Georgia, LLC, Case No.
1:22-cv-10464 (S.D.N.Y., Dec. 9, 2022).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Fairfield Collectibles Of Georgia --
https://fairfieldcollectibles.com/ -- offers 1000s of diecast model
cars & diecast trucks.[BN]
The Plaintiff is represented by:
Michael A. LaBollita, Esq.
GOTTLIEB & ASSOCIATES
150 E. 18 St., Suite PHR
New York, NY 10003
Phone: (212) 228-9795
Email: michael@gottlieb.legal
FAMILY PRACTICE: Roberts Files Suit in N.D. Illinois
----------------------------------------------------
A class action lawsuit has been filed against Family Practice
Center, PC. The case is styled as Mark Roberts, individually and on
behalf of all others similarly situated v. Family Practice Center,
PC, Case No. 4:22-cv-01804-MWB (N.D. Ill., Nov. 10, 2022).
The nature of suit is stated as Other P.I. for Data Breach.
Family Practice Center, PC -- https://www.fpcdoctors.com/ -- is a
large group of primary care physicians in Central
Pennsylvania.[BN]
The Plaintiff is represented by:
Alex J. Dravillas, Esq.
Seth A Meyer, Esq.
KELLER POSTMAN LLC
150 N. Riverside, Suite 4100
Chicago, IL 60606
Phone: (312) 741-5220
Email: sam@kellerlenkner.com
- and -
Andrew White, Esq.
Todd S. Garber, Esq.
FINKELSTEIN, BLANKINSHIP, FREI-PEARSON & GARBER, LLP
One North Broadway, Suite 900
White Plains, NY 10601
Phone: (914) 298-3281
Email: tgarber@fbfglaw.com
- and -
James Barry, Esq.
Joshua M. Neuman, Esq.
POGUST GOODHEAD, LLC
161 Washington Street Suite 250
Conshohocken, PA 19428
Phone: (610) 941-4204
Fax: (610) 941-4245
Email: jneuman@pogustgoodhead.com
FAMILY SOLUTIONS: Bid to Decertify Class in Stephenson Suit Denied
------------------------------------------------------------------
In the case, Jamal Stephenson, et al., On behalf of himself and All
others similarly situated, Plaintiffs v. Family Solutions of Ohio,
Inc., et al., Defendants, Case No. 1:18cv2017 (N.D. Ohio), Judge
Pamela A. Barker of the U.S. District Court for the Northern
District of Ohio denies Defendants Family Solutions of Ohio, Inc.,
Prostar Management, Inc., John Hopkins, and Dawn Smith's Motion to
Decertify the Class Conditionally Certified under 29 U.S.C. Section
216(b).
Family Solutions is a non-profit organization that provides mental
and behavioral healthcare services for children and families
throughout Ohio. Smith was highly involved in the development of
Family Solutions and currently serves as its Vice President of
Strategic Planning and Program Management.
During the Class Period, Family Solutions had locations in
Cleveland, Bedford Heights, Lorain, Columbus, and Cincinnati. At
each location, it employs a Program Director or Assistant Program
Director, as well as a Clinical Supervisor. Each site's Clinical
Supervisor is the direct supervisor of certain employees based out
of that particular site.
Qualified Mental Health Specialists ("QMHSs") are one of the
categories of employees at Family Solutions that work with patients
in the field. (Decl. of Dawn Smith dated Aug. 31, 2020. The parties
dispute the precise scope and nature of the QMHSs' job duties.
However, in general terms, the parties agree that QMHSs provide
behavioral health services, including counseling services, to
Family Solutions' Medicaid-eligible patients. They also agree that,
as part of their duties, QMHSs schedule appointments with clients
and visit them at various locations, including in schools and
homes. Because they visit clients in the field, virtually all QMHSs
travel between clients during the course of the workday. In
addition, it is undisputed that QMHSs are required to create
progress notes regarding their clients and enter documentation into
their client's files using the "ICANotes" electronic medical record
system.
Representative Plaintiffs Melanie Vilk Baron and Jamal Stephenson
were QMHSs. Baron worked in Family Solutions' Cleveland location
between Aug. 1, 2016 and Oct. 7, 2016. According to the Defendants,
Baron was still in her probationary period at the time she resigned
from Family Solutions. Stephenson worked in Family Solutions'
Cincinnati location from August 2016 to May 2017. (
Representative Plaintiffs Baron and Stephenson testified that they
were paid for whatever time they put on their time sheets. They
testified, however, that QMHSs were not paid for certain categories
of time for which there was no corresponding Medicaid billing code.
Specifically, they testified that they were not paid for time spent
(1) traveling between clients; (2) entering documentation into
clients' electronic health records; and (3) dealing with no-show
appointments.
Rose Marie Pryor, Julie Winston, Sereena Creamer, and Valerie White
(each of whom were employed as Clinical Supervisors at different
Family Solutions office locations) submitted Declarations in this
action. Therein, they aver that one of their jobs was to evaluate
and approve or deny time logged by QMHSs on billing and time
sheets. They each state that, throughout their tenures with Family
Solutions, the company had a uniform policy for timekeeping and
compensation of hourly QMHSs with respect to time spent writing and
reviewing client notes and documentation, on work-related travel,
or for waiting and notating files regarding client no-shows.
On Sept. 4, 2018, Plaintiff Alicia Arends filed a Complaint in the
Court on behalf of herself and all others similarly situated
against Defendants Family Solutions of Ohio, Inc., Prostar
Management, Inc., John Hopkins, and Dawn Smith. Therein, she
asserted that she and the putative class members were employed by
the Defendants as QMHSs and that the Defendants had failed to pay
them for time worked that was not billable to Medicaid or other
health insurance.
The Plaintiff alleged the following six claims for relief: (1)
violations of the minimum wage and overtime provisions of the Fair
Labor Standards Act ("FLSA"), 29 U.S.C. Section 216(b) (Count One);
(2) violations of the Ohio Fair Minimum Wage Amendment ("OFMWA"),
Ohio Constitution, Art. II, Section 34a (Count Two); (3) violations
of Ohio's overtime compensation statute, Ohio Rev. Code Section
4111.03 (Count Three); (4) violations of the OFMWA's record-keeping
requirement (Count Four); (5) breach of contract (Count Five); and
(6) unjust enrichment (Count Six). The Plaintiff sought conditional
certification as a FLSA collective action; certification of the
state law claims under Fed. R. Civ. P. 23; compensatory and
punitive damages; and attorney fees and costs. Jamal Stephenson
subsequently filed an Opt-In and Consent Form.
On Feb. 28, 2019, the Plaintiffs filed a Motion for Conditional
Certification and Court-Authorized Notice with respect to their
FLSA claims. On Sept. 16, 2019, the Court issued a Memorandum
Opinion & Order granting the Plaintiffs' Motion for Conditional
Certification with respect to all current and former employees who
worked as QMHSs between Sept. 16, 2016 and Sept. 16, 2019.
On June 2, 2022, the Defendants filed Motions to Decertify the FLSA
and Rule 23 Classes and to Exclude the Testimony of Dr. Thompson.
The Plaintiffs filed Briefs in Opposition to each of the
Defendants' Motions, and Defendants thereafter filed Reply Briefs.
Several months later, on Dec. 5, 2022, the Defendants filed a
Notice of Supplemental Authority to Support their Motion for
Decertify the Rule 23 Class and Request for Supplemental Briefing.
The Plaintiffs have been ordered to file a response by no later
than Dec. 16, 2022.
In a separate Opinion & Order issued this date, the Court denied
the Defendants' Motion to Exclude the Testimony of Dr. Thompson.
The Defendants argue that the FLSA conditional class should be
decertified for several reasons. First, they maintain that the
Plaintiffs cannot show that they are similarly situated to the
Opt-Ins because "discovery has confirmed that the evidence is
highly individualized" with respect to each Opt-Ins' "alleged hours
worked, but not paid," as well as Defendants' actual or
constructive notice of the same. Second, they assert that they will
rely upon individualized defenses, including questioning each
Opt-In regarding their time sheets; their training regarding
whether they were permitted to report time spent on documentation,
intra-day travel, and no-show appointments; and their respective
patient visits, patient loads, and travel schedules. Third, they
maintain that "judicial fairness dictates decertification" because,
if this matter proceeds as a class action, they will need to call
all of the Opt-Ins, resulting in "twenty-three separate
mini-trials." And, lastly, the Defendants argue that
decertification is warranted because, with only 23 members, the
FLSA conditional class is "not sufficiently numerous."
In response, the Plaintiffs argue substantial evidence demonstrates
that the lead Plaintiffs and the Opt-Ins are similarly situated.
They maintain that they share a common theory of liability with the
Opt-Ins (i.e., that the Defendants improperly failed to pay them
for intraday travel, documentation time, and no-shows) and that
this is sufficient to defeat decertification under Sixth Circuit
precedent. They further assert that, even if there are differences
among the individual Opt-ins regarding their travel schedules and
patient loads, any such differences would only affect the amount of
each Opt-Ins' damages, which is not a basis for decertification.
Lastly, the Plaintiffs argue that the Defendants have failed to
identify any individual defenses that would defeat certification
and, further, that fairness and procedural efficiency dictates that
this matter proceed as a collective action.
Judge Barker explains that although the FLSA does not provide a
definition of what it means for plaintiffs to be similarly
situated, courts in the Sixth Circuit look to three
"non-exhaustive" factors to determine whether members of the
collective action are similarly situated: (1) the "factual and
employment settings of the individual[ ] plaintiffs;"(2) "the
different defenses to which the plaintiffs may be subject on an
individual basis;" and (3) "the degree of fairness and procedural
impact of certifying the action as a collective action, citing
O'Brien v. Ed Donnelly Enterprises, Inc., 575 F.3d 567, 583 (6th
Cir. 2009).
Judge Barker opines that each of the three O'Brien factors weigh
against decertification of the FLSA Collective Action. Among other
things, she finds that (i) the Plaintiffs have sufficiently
demonstrated a common theory of one or more FLSA violations and,
further, that any differences among the Plaintiffs' factual and
employment settings do not outweigh the similarities; (ii) a
collective action would allow the Defendants adequate opportunity
to defend themselves against the Plaintiffs' FLSA claims; and (iii)
the Plaintiffs and the Opt-Ins have come forward with substantial
evidence that the Defendants improperly implemented a company-wide
policy of failing to pay QMHSs for the three categories of time at
issue.
Accordingly, and for all the foregoing reasons, Judge Barker denies
the Defendants' Motion to Decertify the Class.
A full-text copy of the Court's Dec. 9, 2022 Memorandum Opinion &
Order is available at https://tinyurl.com/2tt4y675 from
Leagle.com.
FAMILY SOLUTIONS: Loses Bid to Exclude Testimony in Stephenson Suit
-------------------------------------------------------------------
In the case, Jamal Stephenson, et al., On behalf of himself and All
others similarly situated, Plaintiffs v. Family Solutions of Ohio,
Inc., et al., Defendants, Case No. 1:18cv2017 (N.D. Ohio), Judge
Pamela A. Barker of the U.S. District Court for the Northern
District of Ohio denies Defendants Family Solutions of Ohio, Inc.,
Prostar Management, Inc., John Hopkins, and Dawn Smith's Daubert
Motion to Exclude the Testimony of Plaintiffs' Expert.
On Sept. 4, 2018, Plaintiff Alicia Arends filed a Complaint in the
Court on behalf of herself and all others similarly situated
against Defendants Family Solutions of Ohio, Inc., Prostar
Management, Inc., John Hopkins, and Dawn Smith. Therein, the
Plaintiff asserted that she and the putative class members were
employed by the Defendants as Qualified Mental Health Specialists
("QMHSs") and that the Defendants had failed to pay them for time
worked that was not billable to Medicaid or other health
insurance.
The Plaintiff alleged the following six claims for relief: (1)
violations of the minimum wage and overtime provisions of the Fair
Labor Standards Act ("FLSA"), 29 U.S.C. Section 216(b) (Count One);
(2) violations of the Ohio Fair Minimum Wage Amendment ("OFMWA"),
Ohio Constitution, Art. II, Section 34a (Count Two); (3) violations
of Ohio's overtime compensation statute, Ohio Rev. Code Section
4111.03 (Count Three); (4) violations of the OFMWA's record-keeping
requirement (Count Four); (5) breach of contract (Count Five); and
(6) unjust enrichment (Count Six). She sought conditional
certification as a FLSA collective action; certification of the
state law claims under Fed. R. Civ. P. 23; compensatory and
punitive damages; and attorney fees and costs. (Id.) Jamal
Stephenson subsequently filed an Opt-In and Consent Form.
On Feb. 28, 2019, the Plaintiffs filed a Motion for Conditional
Certification and Court-Authorized Notice with respect to their
FLSA claims. Therein, they argued that the Defendants violated the
overtime provisions of the FLSA by failing to pay potential class
members for documentation time, intra-day travel between clients,
and time spent for client appointments and no-shows. On Sept. 16,
2019, the Court issued a Memorandum Opinion & Order granting the
Plaintiffs' Motion for Conditional Certification with respect to
all current and former employees who worked as QMHSs between Sept.
16, 2016 and Sept. 16, 2019.
On May 5, 2020, the Plaintiffs filed an Amended Class and
Collective Action Complaint, designating Plaintiffs Stephenson and
Baron as the representative plaintiffs. The Amended Complaint
raises the same factual and class allegations and asserts the same
six grounds for relief set forth in the original Complaint. The
Defendants filed an Answer on May 19, 2020. The Plaintiffs then
filed their Motion for Rule 23 Class Certification on July 31, 2020
and the Defendants filed Motions for Summary Judgment with respect
to all claims asserted by the Plaintiffs Baron and Stephenson on
Sept. 1, 2020.
Shortly thereafter, on Sept. 30, 2020, the Plaintiffs produced the
report of their damages expert, forensic labor economist Shane
Thompson, Ph.D. Therein, Dr. Thompson concluded that, between Sept.
4, 2015 and Sept. 29, 2019, 23 Opt-Ins accrued a total of 16,965
hours of unpaid work derived from the following three activities:
(1) documentation time in clients' electronic health records, (2)
travel time intraday from client to client, and (3) time spent on
no-show appointments. Using the hourly rates and unpaid hours
specific to each of the 23 Opt-Ins, Dr. Thompson calculated the
total value of unpaid wages to be $472,591.
On Oct. 7, 2020, Dr. Thompson supplemented his Expert Report based
on newly submitted information relating to several Opt-Ins.
Therein, he revised his Opinion to find that the 23 Opt-Ins had a
total of 18,055.6 hours of unpaid work derived from these same
three activities. He calculated the total value of unpaid wages for
the 23 Opt-Ins to be $496, 248.27. The Plaintiffs' counsel produced
Dr. Thompson's "expert file" to the Defendants on Nov. 23, 2020.
Several months later, the Plaintiffs supplemented Dr. Thompson's
expert file with 14 Declarations of certain Opt-Ins.
The Court conducted a telephonic status conference with lead
counsel on Jan. 8, 2021. On March 2, 2021, it issued a Memorandum
Opinion & Order in which it denied the Defendants' Motions for
Summary Judgment as to the Plaintiff Baron's and Stephenson's FLSA
and state law wage-and-hour claims. It denied the Defendants'
Motion for Summary Judgment with respect to the issue of damages
without prejudice subject to refiling after the close of expert
discovery.
On April 5, 2021, the Court issued a Memorandum Opinion & Order
granting in part and denying in part the Plaintiffs' Motion for
Rule 23 Certification of a state law class. It granted the
Plaintiffs' Motion to the extent it sought certification of the
following Rule 23 class: "All employees who worked in Ohio as QMHSs
for Family Solutions during the period three years preceding the
commencement of this action to the present." It denied the
Plaintiffs' Motion, however, to the extent it included hourly
Therapists in the state-law class, and a class-action breach of
contract claim.
On April 19, 2021, the Defendants filed a Notice of Interlocutory
Appeal to the Sixth Circuit from this Court's Rule 23 Certification
decision. They thereafter filed, in this Court, a Motion for
Certification to File Interlocutory Appeal pursuant to 28 U.S.C.
Section 1292(b). They also filed a Motion for Sanctions, arguing
that Plaintiffs' failure to provide evidence of damages and timely
supplement expert discovery violated Fed. Rules of Civ. Proc. 26
and 33. Lastly, on Feb. 4, 2022, the Defendants filed a Motion to
Compel Discovery of Absent Class Members. The Plaintiffs opposed
the Defendants' Motions.
In a series of Memorandum Opinions & Orders issued in January and
February 2022, the Court denied each of the Defendants' Motions.
The Sixth Circuit Court of Appeals subsequently denied the
Defendants' Petition for Interlocutory Appeal.
The Rule 23 Class consists of 178 Class Members. On March 23, 2022,
Dr. Thompson supplemented his Expert Report to calculate damages
for the Rule 23 Class Members with respect to unpaid work derived
from documentation time, travel time, and time spent dealing with
no-show appointments from September 2015 to March 18, 2022. On June
2, 2022, the Defendants filed the instant Motion to Exclude the
Testimony of Dr. Thompson. The Plaintiffs filed a Brief in
Opposition on June 16, 2022, to which the Defendants responded on
June 23, 2022.
The Defendants argue that Dr. Thompson should not be permitted to
testify because his expert opinions do not satisfy the requirements
of Fed. R. Evid. 702. While they do not dispute that Dr Thompson is
qualified to serve as an expert, they maintain that his testimony
should be excluded because he "did not follow a proper method in
reaching his opinion" in this particular case.
In response, the Plaintiffs emphasize that Dr. Thompson had no
choice but to estimate damages in this case because the Defendants
failed to keep records of employees' time or to produce certain
documents in discovery that would have assisted him in calculating
time spent in the three categories at issue. They maintain that Dr.
Thompson used reliable principles and methods in calculating
damages, both for the 23 Opt-Ins and the 178 Rule 23 Class
Members.
Judge Barker finds that the Defendants have failed (i) to
demonstrate that Dr. Thompson's testimony regarding unpaid hours
and wages relating to documentation time is based on mere
speculation; (ii) to show that Dr. Thompson's testimony regarding
to travel time is inadmissible under Rule 702; and (iii) to
demonstrate that Dr. Thompson's expert testimony is not the product
of reliable principles and methods, or that he failed to reliably
apply those principles and methods to the facts of the instant
case.
For these reasons, Judge Barker concludes that the Defendants have
failed to establish that Dr. Thompson's testimony is based on
speculation or that his methodology is otherwise not reliable, with
respect to any of the three categories of allegedly unpaid work at
issue. She opines the Defendants' arguments go to the factual
sufficiency of Dr. Thompson's analysis and not to the reliability
of his underlying methodology. So long as the expert witness
testimony is not based on speculation, the methodology may be
deemed reliable.
Next, Judge Barker is not persuaded that Dr. Thompson failed to
apply his own expertise or standards with regard to his expert
opinions. She opines that (i) Dr. Thompson's expert testimony is
inadmissible because the Plaintiffs' counsel identified the three
categories of damages; (ii) the Defendants' argument that counsel
told Dr. Thompson how to calculate damages is simply unsupported by
the record and without merit; (iii) there is nothing in Dr.
Thompson's testimony to suggest that the counsel prepared Dr.
Thompson's reports from whole cloth and then asked him to sign
them; and (iv) the Defendants have not directed the Court's
attention to any evidence or legal authority suggesting that the
counsel's procurement of Declarations from the Opt-Ins renders Dr.
Thompson's expert testimony inadmissible. Hence, Judge Barker
denies the Defendants' argument to the contrary as without merit.
Judge Barker also rejects the Defendants' argument that Dr.
Thompson's testimony would not be helpful to the jury because it
consists of only basic math. To the contrary, she finds that Dr.
Thompson's statistical expertise will be helpful to the jury in
evaluating the data and understanding how it can be used to
calculate damages not only for the Opt-Ins, but for the larger Rule
23 Class.
Finally, Judge Barker opines that the Court already considered and
rejected the Defendants' arguments that the Plaintiffs should be
sanctioned for failing to timely respond to the Defendants'
discovery requests regarding damages. The Defendants have not
identified any basis to "reconsider" this ruling at this time. This
argument is rejected. Accordingly, the Defendants'
discovery-related arguments are without merit and rejected.
For all the foregoing reasons, Judge Barker denies the Defendants'
Daubert Motion to Exclude the Testimony of Plaintiffs' Expert.
A full-text copy of the Court's Dec. 9, 2022 Memorandum Opinion &
Order is available at https://tinyurl.com/y4b5epk3 from
Leagle.com.
FANJOY CO: Luis Files ADA Suit in S.D. New York
-----------------------------------------------
A class action lawsuit has been filed against Fanjoy Co. The case
is styled as Kevin Yan Luis, individually and on behalf of all
others similarly situated v. Fanjoy Co., Case No. 1:22-cv-10499
(S.D.N.Y., Dec. 12, 2022).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Fanjoy -- https://fanjoy.co/ -- allows anyone with a fanbase to
create unique merchandise experiences for their fans.[BN]
The Plaintiff is represented by:
Noor Abou-Saab, I, Esq.
LAW OFFICE OF NOOR A. SAAB
380 North Broadway, Suite 300
Jericho, NY 11753
Phone: (718) 740-5060
Email: noorasaablaw@gmail.com
FRANK & EILEEN: Fagnani Files ADA Suit in S.D. New York
-------------------------------------------------------
A class action lawsuit has been filed against Frank & Eileen LLC.
The case is styled as Mykayla Fagnani, on behalf of herself and all
other persons similarly situated v. Frank & Eileen LLC, Case No.
1:22-cv-10465 (S.D.N.Y., Dec. 9, 2022).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Frank & Eileen -- https://www.frankandeileen.com/ -- offers classic
women's shirts, skirts, dresses, and women's pants made with love
in sunny California.[BN]
The Plaintiff is represented by:
Michael A. LaBollita, Esq.
GOTTLIEB & ASSOCIATES
150 E. 18 St., Suite PHR
New York, NY 10003
Phone: (212) 228-9795
Email: michael@gottlieb.legal
GAIA INC: Rosen Law Firm Investigates Potential Securities Claims
-----------------------------------------------------------------
WHY: Rosen Law Firm, a global investor rights law firm, continues
to investigate potential securities claims on behalf of
shareholders of Gaia, Inc. GAIA resulting from allegations that
Gaia may have issued materially misleading business information to
the investing public.
SO WHAT: If you purchased Gaia securities you may be entitled to
compensation without payment of any out of pocket fees or costs
through a contingency fee arrangement. The Rosen Law Firm is
preparing a class action seeking recovery of investor losses.
WHAT TO DO NEXT: To join the prospective class action, go to
https://rosenlegal.com/submit-form/?case_id=9917 or call Phillip
Kim, Esq. toll-free at 866-767-3653 or email pkim@rosenlegal.com or
cases@rosenlegal.com for information on the class action.
WHAT IS THIS ABOUT: On November 7, 2022, Gaia revealed "an
investigation by the staff of the Denver Regional Office (the
'Staff') of the U.S. Securities and Exchange Commission (the
'SEC')" which began in June 2020. According to Gaia, "[i]n
September 2022, Gaia and Gaia's Chief Financial Officer ('CFO')
reached an agreement in principle with the Staff on a framework for
a complete resolution of the investigation." Further, according to
the Company, "[t]he agreement in principle contemplates that Gaia
would consent, without admitting or denying any findings, to the
entry of an administrative order: (1) finding that Gaia (a)
misstated in its April 29, 2019 earnings release and earnings call
the number of paying subscribers for the period ending March 31,
2019, … and (b) failed to comply with SEC whistleblower
protection requirements with respect to the termination of one
employee and the language used in severance agreements for other
employees; and (2) requiring Gaia to pay a total civil monetary
penalty of $2,000[,000] over a one-year period for these
violations. At the same time, the CFO would consent, without
admitting or denying any findings, to the entry of an
administrative order: (1) finding that the CFO caused Gaia's
misstatements in the April 29, 2019 earnings release and earnings
call that is described above; and (2) requiring the CFO to pay a
civil monetary penalty of $50[,000]." Gaia also stated "[t]here can
be no assurance that the contemplated settlement will be finalized
and approved."
WHY ROSEN LAW: We encourage investors to select qualified counsel
with a track record of success in leadership roles. Often, firms
issuing notices do not have comparable experience, resources, or
any meaningful peer recognition. Many of these firms do not
actually litigate securities class actions. Be wise in selecting
counsel. The Rosen Law Firm represents investors throughout the
globe, concentrating its practice in securities class actions and
shareholder derivative litigation. Rosen Law Firm has achieved the
largest ever securities class action settlement against a Chinese
Company. Rosen Law Firm was Ranked No. 1 by ISS Securities Class
Action Services for number of securities class action settlements
in 2017. The firm has been ranked in the top 4 each year since 2013
and has recovered hundreds of millions of dollars for investors. In
2019 alone the firm secured over $438 million for investors. In
2020, founding partner Laurence Rosen was named by law360 as a
Titan of Plaintiffs' Bar. Many of the firm's attorneys have been
recognized by Lawdragon and Super Lawyers.
Attorney Advertising. Prior results do not guarantee a similar
outcome.
Contact Information:
Laurence Rosen, Esq.
Phillip Kim, Esq.
The Rosen Law Firm, P.A.
275 Madison Avenue, 40th Floor
New York, NY 10016
Tel: (212) 686-1060
Toll Free: (866) 767-3653
Fax: (212) 202-3827
lrosen@rosenlegal.com
pkim@rosenlegal.com
cases@rosenlegal.com
www.rosenlegal.com [GN]
GEICO INDEMNITY: Andrade Suit Removed to D. New Jersey
------------------------------------------------------
The case styled as Catherine Basantes Andrade, individually, and on
behalf of all others similarly situated v. GEICO INDEMNITY, GEICO,
ABC Corporations 1-10, John Does 1-10, Case No. BER L 5251 22 was
removed from the Superior Court of Bergen County New Jersey, to the
U.S. District Court for the District of New Jersey on Nov. 8,
2022.
The District Court Clerk assigned Case No. 2:22-cv-06516-MCA-ESK to
the proceeding.
The nature of suit is stated as Insurance for Breach of Contract.
GEICO Indemnity Company -- https://www.geico.com/ -- operates as an
insurance company. The Company provides vehicle, property,
business, and life insurance services.[BN]
The Plaintiff is represented by:
Barry J. Gainey, Esq.
GAINEY McKENNA & EGLESTON
375 Abbott Road
Paramus, NJ 07652
Phone: (201) 225-9001
Fax: (201) 225-9002
Email: bgainey@gme-law.com
The Defendant is represented by:
Curtis J. Turpan, Esq.
HARWOOD LLOYD LLC
130 Main St.
Hackensack, NJ 07601
Phone: (201) 359-3675
Fax: (201) 487-4758
Email: cturpan@harwoodlloyd.com
GOLDWATER BANK: District of Arizona Narrows Claims in Feins Suit
----------------------------------------------------------------
In the case, John Feins, Plaintiff v. Goldwater Bank NA, Defendant,
Case No. CV-22-00932-PHX-JJT (D. Ariz.), Judge John J. Tuchi of the
U.S. District Court for the District of Arizona grants in part and
denies in part the Defendant's Motion to Dismiss Plaintiff's
Amended Complaint.
In the Amended Class Action Complaint for Damages, Injunctive, and
Equitable Relief, the Plaintiff, a citizen and resident of New
Mexico, alleges that he was a customer of the Defendant, a bank
with its principal office in Arizona. In May 2021, the Defendant
experienced "an attempted ransomware attack" by hackers, and,
around November 2021, it notified customers, including the
Plaintiff, who were potentially affected by the incident.
The Defendant acknowledged the compromise of sensitive consumer
information in the Data Breach. Specifically, the hackers accessed
information containing customers' Personally Identifiable
Information ("PII"), including names, addresses, telephone numbers,
Social Security numbers, account numbers, and tax identification
numbers. After an investigation, the Defendant reported that the
Data Breach compromised the PII of 11,376 individuals. In the
November 2021 notification letter, it offered 12 months of identity
monitoring services to its customers.
In December 2021, Wells Fargo Bank notified the Plaintiff that a
fraudulent account was opened in his name, which he links to the
compromise of his PII in the Data Breach suffered by the Defendant.
The Plaintiff claims he has experienced an increase in phishing
attempts on his email, has spent considerable time on issues
related to the Data Breach, and anticipates spending more time and
money to mitigate and address harms caused by the Data Breach.
On behalf of himself and a putative nationwide class, the Plaintiff
now raises four state law claims against the Defendant as a result
of the Data Breach: (1) negligence; (2) invasion of privacy; (3)
breach of implied contract; (4) unjust enrichment. He also raises a
fifth claim on behalf of a putative subclass of New Mexico
plaintiffs: violations of the New Mexico Unfair Trade Practices
Act.
The Defendant has now filed a Motion to Dismiss for failure to
state a claim under Federal Rule of Civil Procedure 12(b)(6).
First, Judge Tuchi agrees with the Plaintiff that, at this early
stage, the allegations point to the application of Arizona law to
both the Plaintiff's tort and contract-based claims. He thus
applies Arizona law to the extent possible, using out-of-state
sources as persuasive authority in the absence of on-point Arizona
law.
Next, taking the Plaintiff's allegations as true for the purpose of
resolving the Defendant's Motion to Dismiss, Judge Tuchi says he
need only find it plausible that the Plaintiff's alleged injury was
proximately caused by the Data Breach. The Plaintiff's factual
allegations are sufficient for the Court plausibly infer a
connection between the Data Breach and the Plaintiff's alleged two
incidents. Accordingly, Judge Tuchi denies the Defendant's request
to dismiss the negligence claim (Count 1) based on insufficient
allegations of proximate cause.
Regarding Count 2, Judge Tuchi holds that the Plaintiff does not
allege non-conclusory facts showing the Defendant intended any PII
disclosure; indeed, the Plaintiff alleges that his PII "was
contained, stored, and managed electronically by the Defendant's
records, computers, and databases that was intended to be secured
from unauthorized access to third-parties." He says the "central
narrative" of the Plaintiff's allegations is that the Defendant
failed "to adequately secure and safeguard" Plaintiff's PII from
hackers. This is not sufficient to show the Defendant intentionally
intruded upon the Plaintiff's private affairs when, as the
Plaintiff alleges, the Plaintiff's PII was stolen. As a result, he
dismisses the Plaintiff's invasion of privacy claim (Count 2).
Judge Tuchi agrees with the Defendant's arguments regarding the
Plaintiff's breach of implied contract claim, that the Amended
Complaint contains no nonconclusory allegations regarding what the
supposed implied contract terms were and that the policy is simply
a promise to do what the law requires and could not have created a
separate implied agreement between the Defendant and the Plaintiff.
Relatedly, to the extent the Plaintiff contends that the Defendant
breached some implied contract by not complying with its own
written policies, the allegations do not suffice to show that any
such non-compliance was beyond what was legally mandated. For these
reasons, the Plaintiff's breach of implied contract claim (Count 3)
fails, and will be dismissed.
To the extent the Defendant derived an enrichment for its privacy
policy, Judge Tuchi holds that it was not unjust because it was
subject to terms and conditions set forth in the service agreement.
The Plaintiff does not allege any facts to show that the Defendant
failed to take reasonable steps to protect PII. The Plaintiff thus
fails to state a claim for unjust enrichment (Count 4) and Judge
Tuchi dismisses it.
As Judge Tuchi finds, the Amended Complaint contains no
non-conclusory allegations regarding how any of those terms are
false or misleading other than the fact that the Data Breach
occurred. As the Defendant argues, the fact of a data breach is not
sufficient by itself to show that it made false or misleading
statements in its privacy policy. Without more, the claim fails,
and Judge Tuchi dismisses Count 5.
The remaining question is whether the Plaintiff has adequately
alleged damages for its sole remaining claim of negligence. Judge
Tuchi explains that courts have recognized the diminished value of
PII as a cognizable injury resulting from a data breach, as small
as that value may be. The Plaintiff alleges there is a high demand
on the market for PII that includes Social Security numbers and he
has plausibly been deprived of the ability to sell his personal
data by the Data Breach. As a result, the Plaintiff's prayer for
the diminished value of his PII also survives the Defendant's Rule
12(b)(6) challenge.
Because he finds the defects in the Plaintiffs' dismissed claims
cannot be cured by amendment when considering the context and
thoroughness of their allegations in the Amended Complaint, Judge
Tuchi dismisses Counts 2 through 5 without leave to amend. He
grants in part and denies in part the Defendant's Motion to Dismiss
Plaintiff's Amended Complaint. The Defendant will file an Answer
to Count 1 of the Amended Complaint within the time specified in
the Federal Rules of Civil Procedure. The Court will set a case
management conference by separate Order.
A full-text copy of the Court's Dec. 9, 2022 Order is available at
https://tinyurl.com/4d3ztdtz from Leagle.com.
GONCHEZ REALTY CORP: Hanyzkiewicz Files ADA Suit in E.D. New York
-----------------------------------------------------------------
A class action lawsuit has been filed against Gonchez Realty Corp.
The case is styled as Marta Hanyzkiewicz, on behalf of herself and
all others similarly situated v. Gonchez Realty Corp., Case No.
1:22-cv-07514-KAM-RER (E.D.N.Y., Dec. 12, 2022).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Gonchez Realty Corp was the owner of the properties.[BN]
The Plaintiff is represented by:
Mark Rozenberg, Esq.
STEIN SAKS, PLLC
One University Plaza, Ste. 620
Hackensack, NJ 07601
Phone: (201) 282-6500
Email: mrozenberg@steinsakslegal.com
HENNEPIN COUNTY PROBATE: Vickerman Files Suit in D. Minnesota
-------------------------------------------------------------
A class action lawsuit has been filed against Hennepin County
Probate Court, et al. The case is styled as M. D. Vickerman, on
behalf of himself and all others similarly situated v. Hennepin
County Probate Court, John Derus, Chairperson, Hennepin County
Board of Commissioners; Honorable Melvin Peterson, Hennepin County
Probate Judge, and their successors in office; Hennepin County
Board of Commissioners; Arthur Noot, individually and in his
capacity as Commissioner of the Department of Public Welfare of the
State of Minnesota, and their successors in office; Case No.
4:78-cv-00376-KMM (D. Minn., Dec. 12, 2022).
The nature of suit is stated as Other Civil Rights for the Civil
Rights Act.
Hennepin County -- https://www.hennepin.us/ -- is a county in the
U.S. state of Minnesota.[BN]
The Defendants are represented by:
Kelly K. Pierce, Esq.
HENNEPIN COUNTY ATTORNEY'S OFFICE
300 South 6th Street, Suite A2000
Minneapolis, MN 55487
Phone: (612) 348-5488
Fax: (612) 348-8299
Email: kelly.pierce@hennepin.us
HERTZ CORP: Settles Consumers Lawsuits Over Stolen Vehicles
-----------------------------------------------------------
Rhiannon Ally, writing for ABC7, reports that Hertz settled
hundreds of lawsuits from customers who were falsely accused of
stealing vehicles. The rental car company said it will pay
approximately $168 million by the end of 2022 to settle the
majority of the 364 pending claims -- some made by customers that
were arrested at gunpoint.
"All of them were pointing guns literally to the back of our head,"
said customer Kelly Grady of Pennsylvania.
In April, CEO Stephen Scherr said that he was working to fix a
glitch in the company's systems that resulted in vehicles being
listed as "stolen" or incorrectly indicating that a customer had
not paid.
Hertz also blamed the computer glitch for not properly recording
rental extensions.
Grady said she was arrested a month after she had returned a Hertz
vehicle because it was reported stolen. She spent 12 days in jail
prior to the incident being cleared up.
"They yelled and screamed, 'Get out of the car, put my hands up'"
said Jonathan Olivares, who was pulled over in Louisiana after his
vehicle was reported stolen.
He said he tried to contact his employer who set up the rental but
was unable to do so. Officers proceeded to charge him with felony
auto-theft.
"I was in a cell the size of a bathroom with two other inmates," he
said.
The company anticipates recovering a "meaningful portion" of the
settlement through its insurance carriers. Hertz does not expect
the resolution of these claims to impact its capital allocation
plans for the remainder of the year, nor for the 2023 year. [GN]
IDEXX LABORATORIES: Yuen Suit Transferred to D. Maine
-----------------------------------------------------
The case styled as Cam Yuen, Arrianna Garcia, Kathryn Heberling,
Susan McVinney, Sunny Stimson, Ellen Berman, Neil Murphy, Dennis
Wild, Andrea Bury, Miranda Smelcer, Marcia Potts, Sheryl Emerson,
Chrysta Cataldo, Marlena Giga, Gina Giorgio, Michelle Carpenter,
Valerie Hitz, Shavonna Armstrong, Hilary Allred, Melissa Marshall,
Joseph Duncan, and Dawn Reynosa, on behalf of themselves and all
others similarly situated v. IDEXX LABORATORIES, INC. and IDEXX
DISTRIBUTION, INC., Case No. 3:22-cv-04297 was transferred from the
U.S. District Court for the Northern District of California, to the
U.S. District Court for the District of Maine on Dec. 12, 2022.
The District Court Clerk assigned Case No. 2:22-cv-00392-JDL to the
proceeding.
The nature of suit is stated as Anti-Trust for Antitrust
Litigation.
IDEXX Laboratories, Inc. -- http://www.idexx.com/-- is an American
multinational corporation engaged in the development, manufacture,
and distribution of products and services for the companion animal
veterinary, livestock and poultry, water testing, and dairy
markets.[BN]
The Plaintiffs are represented by:
Brent W. Johnson, Esq.
Richard A. Koffman, Esq.
Daniel McCuaig, Esq.
Daniel H. Silverman, Esq.
COHEN MILSTEIN SELLERS & TOLL PLLC
1100 New York Ave., NW, Fifth Floor
Washington, DC 20005
Phone: (202) 408-4600
Email: bjohnson@cohenmilstein.com
rkoffman@cohenmilstein.com
dmccuaig@cohenmilstein.com
dsilverman@cohenmilstein.com
- and -
Joshua P. Davis, Esq.
BERGER MONTAGUE PC
59A Montford Avenue
Mill Valley, CA 94941
Phone: (800) 424-6690
Email: jdavis@bm.net
- and -
Eric L. Cramer, Esq.
Michael J. Kane, Esq.
Andrew C. Curley, Esq.
Najah A. Jacobs, Esq.
BERGER MONTAGUE PC
1818 Market Street, Suite 3600
Philadelphia, PA 19103
Phone: (215) 875-3000
Email: ecramer@bm.net
mkane@bm.net
acurley@bm.net
njacobs@bm.net
- and -
Daniel Walker, Esq.
BERGER MONTAGUE PC
2001 Pennsylvania Avenue, NW, Suite 300
Washington, DC 20006
Phone: (202) 559-9745
Email: dwalker@bm.net
- and -
Jennie Lee Anderson, Esq.
Lori E. Andrus, Esq.
ANDRUS ANDERSON LLP
155 Montgomery Street, Suite 900
San Francisco, CA 94104
Phone: (415) 986-1400
Facsimile: (415) 986-1474
Email: jennie@andrusanderson.com
lori.andrus@andrusanderson.com
The Defendants are represented by:
Glenn D. Pomerantz, Esq.
Stuart N. Senator, Esq.
Adam R. Lawton, Esq.
MUNGER, TOLLES & OLSON LLP
350 S. Grand Avenue, Ste 50th Floor
Los Angeles, CA 90071-3426
Phone: (213) 683-9100
Email: glenn.pomerantz@mto.com
stuart.senator@mto.com
adam.lawton@mto.com
- and -
Adrianne E. Fouts, Esq.
James T. Kilbreth, Esq.
DRUMMOND WOODSUM & MACMAHON
84 Marginal Way, Suite 600
Portland, ME 04101
Phone: (207) 772-1941
Email: afouts@dwmlaw.com
jkilbreth@dwmlaw.com
- and -
Stephen A. Hylas, Esq.
MUNGER, TOLLES & OLSON LLP
560 Mission Street, 27th Floor
San Francisco, CA 94105
Phone: (415) 512-4053
Fax: (415) 644-6953
Email: stephen.hylas@mto.com
JOHNSON & JOHNSON: Faces Class Action Over Neutrogena Sunscreen
---------------------------------------------------------------
Medtruth reports that a sunscreen marketed for children and sold by
the Neutrogena Corporation, a Johnson & Johnson brand, is at the
center of a proposed class action lawsuit over allegations that the
product costs more than a virtually identical adult-marketed
Neutrogena sunscreen.
Neutrogena Pure & Free baby zinc oxide SPF 50, a sunscreen stick,
costs almost twice as much as Neutrogena Mineral Ultra Sheer
sunscreen stick, despite the fact that both products contain the
same amount of the active ultraviolet light-blocking active
ingredient, zinc oxide.
In addition, 12 of the 13 inactive ingredients contained in both
products are found in near-identical quantities, a 12-page lawsuit
alleges, according to a class action news site. The only difference
in the formulation between the two products, according to the
lawsuit, is that the thirteenth and least-predominant ingredient is
oat kernel oil in the baby sunscreen, while the adult version uses
tocopheryl acetate, a form of vitamin E.
The difference between the thirteenth ingredient in the respective
formulas does not account for the price discrepancy, the lawsuit
alleges, adding that parents who purchase Neutrogena's Pure & Free
baby zinc oxide are misled into believing that the product is a
superior product for their infant's needs in comparison to the
adult version of the sunscreen.
Neutrogena's Pure & Free baby zinc oxide sunscreen stick costs
$16.96 on a per-ounce basis while Mineral Ultra Sheer costs $8.65.
"This price discrepancy confirms to parents they are buying
different products, because they will not, at the
point-of-purchase, theorize as to other explanations," reads the
complaint.
The complaint also alleges that Johnson & Johnson's marketing
practices in selling Neutrogena Pure & Free baby sunscreen amount
to a "kid tax," which is similar to the so-called "pink tax"
allegation against companies who sell products geared to women at a
higher price than a virtually-identical product sold to men.
"The 'kids' tax' exists because studies have shown that demand for
children's versions of personal care products is inelastic, since
parents are less sensitive to paying higher prices when they
believe they are buying products specifically formulated for their
children," the lawsuit contends. [GN]
JOLIET, IL: Faces Class Suit Over Hefty Fines for Commercial Trucks
-------------------------------------------------------------------
John Ferak, writing for Patch, reports that long-time Joliet
attorney Frank Andreano intends to move ahead with a class action
lawsuit against City Hall, accusing Joliet officials of "an illegal
scheme" to generate millions of dollars of extra revenue for itself
by targeting commercial truckers passing through Joliet.
"Joliet put itself in the position of being the fox guarding the
henhouse," Andreano's class action lawsuit against Joliet states.
"Because the fines due under those tickets are hefty, Joliet uses
this scheme to generate millions of dollars for itself."
According to the civil lawsuit at the Will County Courthouse,
Joliet is known as the Crossroads of Mid-America because of the
intersection of Interstate 55 and Interstate 80 as well as major
railways and a series of canals. Joliet is one of the most heavily
trafficked area for commercial trucks in the entire United States.
The main legal issue, according to Andreano, is that Joliet's
municipal ordinances for commercial truck moving violations and
offenses reportable to the Illinois Secretary of State are instead
being handled by Joliet City Hall as "administrative adjudications
of tickets for violating Joliet's over length or overweight truck
ordinances" in violation of state law.
"Joliet's administrative adjudication scheme is motivated by
financial gain," Andreano argues in his class action lawsuit
In 2017, Joliet established its Joliet Police Department commercial
truck enforcement to issue more tickets to truckers. "In the first
14 months after this new unit was created, Joliet issued tickets
totaling over $2.2 million," Andreano revealed. "Joliet retains all
of the funds generated through its scheme. If these tickets were
adjudicated in an Illinois court, Joliet would have to share the
proceeds from the fines with other units of government."
Joliet Patch visited the city's legal department on Dec. 7, leaving
a message seeking comment from Joliet Corporation Counsel Sabrina
Spano, but she did not call back.
A city employee told Patch the office is well aware of Andreano's
class action lawsuit involving the truck traffic enforcement.
"To bypass the distribution of fines paid for alleged violations of
the ordinances to other units of government, Joliet established for
itself an in-house administrative traffic court system that allowed
the city of Joliet to keep traffic court monies for itself,"
Andreano's lawsuit stated. "In gaming terms, Joliet stacks the deck
in its favor and then keep all of the winnings."
Incidentally, Andreano, along with Chicago attorney Karl Leinberger
of Markoff Leinberger LLC filed their lawsuit Nov. 29 —just three
days before the Illinois Court of Appeals for the Third District
issued an important legal opinion in a totally separate case called
Cammacho versus City of Joliet.
"Plaintiffs, Robert Cammacho Jr., James A. Jones, Bruce D. Oliver,
David B. Speer, and Jorge Urbina, were cited for violating the
defendant City of Joliet's ordinance, which imposed weight limits
for vehicles on designated roads. The citations were adjudicated
through the City's administrative process. The administrative
hearing officer imposed fines against plaintiffs. The trial court
affirmed the decision of an administrative officer. Plaintiffs
appeal, contending that the City lacked jurisdiction to
administratively adjudicate the violations in question. We
reverse," the Court of Appeals announced in its ruling.
The plaintiff's lawyer in the Cammacho case against Joliet? Frank
Andreano of Andreano Law, 58 North Chicago St. As for the losing
side, Joliet was represented by assistant corporation counsel Todd
Lenzie. You can read the entire Cammacho case eight-page Illinois
Appeals Court opinion against Joliet here.
As it stands, Andreano is now representing four professional truck
drivers, three from the U.S. and one from Canada, who were busted
by Joliet Police between 2019 and 2022 and all four men quickly
paid their fines to the city of Joliet to avoid further escalating
fines for failing to do so.
According to the class action lawsuit:
Iuri Culev resides in California and on Jan. 6, 2021, Joliet police
"pulled Iuri's truck over near the intersection of Millsdale Road
and Holland drive in Joliet. The Iuri ticket stated that Iuri owed
a $500 municipal fine . . . in violation of the Overlength
Ordinance." On March 9, 2021, Iuri paid $500 to Joliet for his
allegedly over length vehicle.
Richard Bagley resides in Missouri and this past Sept. 17, Joliet
police gave him a $250 ticket for driving an over length vehicle on
a non-designated city street at North Joliet Street and West
Jefferson Street in downtown Joliet. He paid the $250 ticket to
Joliet on Oct. 6 and "Joliet administratively adjudicated the
Richard ticket, which provided no method for adjudicating the
Richard ticket in an Illinois court."
Vasan Tharamalingham resides in Ontario, Canada and this past June
2, Joliet police gave him a $250 municipal fine for an overweight
vehicle at Millsdale Road and Bridge Road in Joliet. On June 13, he
paid $250 to Joliet.
Maciej Gasienica Sobczak resides in Illinois and on Nov. 4, 2019,
he drove a Volvo semi-truck near Millsdale Road and Holland Drive
where Joliet police gave him a $500 municipal ticket for driving on
a non-designated city street. He paid the $500 fine to Joliet on
Dec. 10, 2019.
"Even though Joliet illegally used its administrative adjudication
system, plaintiffs had no choice but to pay the fines by their
tickets," Andreano's lawsuit argued. "Joliet had no right to
collect any of those monies . . . Joliet's wrongful conduct
inflicted damage upon plaintiffs Class Members by causing them to
pay illegal fines ranging from $250 to over $1,000 per ticket."
If the plaintiffs did not pay their fines in quick fashion, they
faced higher fines for payments made after certain deadlines,
collection agency proceedings, garnished wages, payment of Joliet's
fees and expenses incurred in collecting the fines, interest
payments, negative reporting to credit bureaus and more, Andreano
noted.
"Joliet's ticket scheme strong-armed plaintiffs and Class Members
into paying their fines by making threats to plaintiff's
pocketbooks," his lawsuit noted. "Most commercial truck drivers do
not receive significant compensation for being a truck driver.
Joliet's fines, in contrast, are significant amounts of money."
Andreano believes that if his class action lawsuit gets a judge's
permission to proceed, the number of plaintiffs may climb into the
thousands against the city of Joliet.
"Plaintiffs do not know the exact number of members of the Class
because that is information under the exclusive control of the
Defendant, but on information and belief, there (are) thousands of
members in the Class," the lawsuit states. "Joliet is the
third-largest city in Illinois and contains hundreds of businesses
that involve commercial trucking." [GN]
JPMORGAN CHASE: Radabaugh FLSA Suit Transferred to S.D. Ohio
------------------------------------------------------------
The case styled as Jodi Radabaugh and Barbara J. Vernon,
individually and on behalf of all others similarly situated v.
JPMORGAN CHASE & CO. and JPMORGAN CHASE BANK, NATIONAL ASSOCIATION,
Case No. 1:22-cv-08336 was transferred from the U.S. District Court
for the Southern District of New York, to the U.S. District Court
for the Southern District of Ohio on Dec. 12, 2022.
The District Court Clerk assigned Case No. 2:22-cv-04356-MHW-CMV to
the proceeding.
The lawsuit is brought over alleged violation of the Fair Labor
Standards Act.
JPMorgan Chase & Co. -- https://www.jpmorganchase.com/ -- is an
American multinational investment bank and financial services
holding company headquartered in New York City and incorporated in
Delaware.[BN]
The Plaintiff is represented by:
Jason T. Brown, Esq.
Nicholas Conlon, Esq.
BROWN, LLC
111 Town Square Pl Suite 400
Jersey City, NJ 07310
Phone: (877) 561-0000
Fax: (855) 582-5297
Email: jtb@jtblawgroup.com
nicholasconlon@jtblawgroup.com
The Defendants are represented by:
Stephanie R Reiss, Esq.
MORGAN LEWIS & BOCKIUS, LLP
One Oxford Centre, 32nd Floor
Pittsburgh, PA 15219-6401
Phone: (412) 560-3378
Fax: (412) 560-7001
Email: stephanie.reiss@morganlewis.com
- and -
Samuel S. Shaulson, Esq.
MORGAN, LEWIS & BOCKIUS LLP
101 Park Avenue
New York, NY 10178-0060
Phone: (212) 309-6718
Fax: (212) 309-6001
Email: sam.shaulson@morganlewis.com
- and -
Thomas Anton Linthorst, Esq.
MORGAN LEWIS & BOCKIUS, LLP (NJ)
502 Carnegie Center
Princeton, NJ 08540
Phone: (609) 919-6642
Email: thomas.linthorst@morganlewis.com
KHAYLIE HAZEL: Class Certification Discovery in Martin Suit Denied
------------------------------------------------------------------
In the case, ANDREW MARTIN ON BEHALF OF HIMSELF AND ALL OTHERS
SIMILARLY SITUATED, Plaintiff v. KHAYLIE HAZEL YEARNING LLC,
Defendant, Civil Action No. 3:22-CV-176-SA-JMV (N.D. Miss.),
Magistrate Judge Jane M. Virden of the U.S. District Court for the
Northern District of Mississippi, Oxford Division, grants in part
and denies in part the Plaintiff's motion for leave to conduct
class certification discovery.
The lawsuit is a Fed. R. Civ. P. 23 putative class action under the
TCPA. In particular, the Plaintiff seeks to have certified two
nationwide classes certified. He brings the action under Fed. R.
Civ. P. 23 on behalf of the DNC Class and Time Class:
a. DNC Class: Plaintiff and all persons within the United
States (1) to whose telephone number Defendant placed (or had
placed on its behalf) two or more text messages, (2) from four
years prior to the filing of the Compliant to the date of
certification, (3) for the purpose of encouraging the purchase of
Defendant's CBD Oil Products (4) in a 12-month period (5) when the
telephone number to which the text messages were sent was on the
National Do-Not-Call Registry at the time of the messages.
b. Time Class: Plaintiff and all persons within the United
States (1) to whose telephone number Defendant placed (or had
placed on its behalf) two or more text messages, (2) from four
years prior to the filing of the Compliant to the date of
certification, (3) between the hours of 9:00 pm and 8:00 am local
time, (4) for the purpose of encouraging the purchase of
Defendant's CBD Oil Products (5) in a 12-month period.
The complaint was served on Sept. 19, 2022, and was unanswered.
Accordingly, entry of default was made on Oct. 19, 2022. Entry of
default, however, does not cut off the Plaintiff's right to pursue
certification of a class(es) under Fed. R. Civ. P. 23.
Plaintiffs seeking to certify a class must make certain showings
under Rule 23(a): (1) numerosity, (2) commonality of issues, (3)
typicality of the class representatives' claims in relation to the
class, and (4) adequacy of the class representatives and their
counsel to represent the class. In addition to Rule 23(a)'s four
requirements, a plaintiff must also satisfy the requirements of
Rule 23(b)(1), (2), or (3).
In the instant case, according to the Plaintiff, for purposes of
having the proposed classes certified, factual development, and
therefore, discovery, is needed only as concerns one of the four
factors listed in Rule 23(a), namely, numerosity.
Judge Virden explains that in light of Rule 23's mandate to
determine class certification at "an early practicable time," the
district court must be permitted to limit precertification
discovery to "evidence that, in its sound judgment, would be
helpful or necessary to the certification decision." Nevertheless,
she finds that the Plaintiff seeks discovery beyond that relevant
and proportional to the issues pertinent to a decision on class
certification.
To begin, unless and until a class has been certified, Judge Virden
holds that discovery as to the damages such class might be entitled
to is premature. Accordingly, the Plaintiff is not permitted leave
to conduct such discovery (except as might be relevant to his own
individual claim for damages). Secondly, according to the
Plaintiff, for purposes of having the proposed classes certified,
factual development, and therefore, discovery, is needed only as
concerns one of the four factors listed in Rule 23(a), namely
numerosity, and on the subject, generally, of "administrative
feasibility." Therefore, no discovery except as to these factors
will be permitted at this juncture.
On the other hand, as concerns the need for discovery on numerosity
and administrative feasibility, each relevant to the class
certification analysis, Judge Virden permits delineated discovery
as follows:
As to the Defendant, a 30(b)(6) deposition pursuant to subpoena of
Keisha Merrit, which lists in the subpoena the documents and topics
requested, for the limited purpose of a) producing any call logs in
her possession or that of the Defendant covering a two-year period
prior to today, provided such call logs are related to the
solicitation of sales or promotion of the Defendants' CBD Oil
products; b) discovering the identity and contact information of
any 3rd party engaged on behalf of Defendant to solicit or promote
sales of its CBD Oil products via telephone in the past two years;
and c) the types of information maintained by Defendant which could
be reviewed to ascertain the identity and contact information of
putative class members (for the past two years) and/or whether a
person otherwise meets a purported class definition.
As to third parties engaged by the Defendant to promote by phone
its CBD Oil products in the last two years, Judge Virden allows at
this juncture up to five subpoenas for production of a) their
respective call logs as described above; and b) seeking an
exemplar(s) or sample(s) of such information, if any, maintained by
such third party that could be reviewed to ascertain whether a
person meets a purported class definition and their identity.
For the reasons she explained, Judge Virden grants in part and
denies in part the Plaintiff's motion for leave to conduct class
certification discovery. The Plaintiff will have 90 days from the
date of the Order to conduct the discovery outlined. The Plaintiff
will have 30 days after expiration of the discovery period to file
a motion for class certification.
A full-text copy of the Court's Dec. 9, 2022 Order is available at
https://tinyurl.com/43rc7f9f from Leagle.com.
KIA AMERICA: Browning Files Suit in D. Arizona
----------------------------------------------
A class action lawsuit has been filed against Kia America, Inc., et
al. The case is styled as Patricia Browning, Melvin Essomba,
individually and on behalf of all similarly situated individuals v.
Kia America, Inc., Hyundai Motor America Incorporated, Case No.
2:22-cv-02074-JJT (D. Ariz., Dec. 8, 2022).
The nature of suit is stated as Personal Injury: Motor Vehicle
Prod. Liability for the Magnuson-Moss Warranty Act.
Kia America, Inc. -- http://www.kiamedia.com/-- provides a wide
range of cars that meet your lifestyle. Browse our luxury or sports
sedans, hybrids, electric cars, SUVs & hatchbacks.[BN]
The Plaintiffs are represented by:
Richard Phillip Traulsen, Esq.
BEGAM MARKS & TRAULSEN PA
11201 N Tatum Blvd., Ste. 110
Phoenix, AZ 85028
Phone: (602) 254-6071
Fax: (602) 252-0042
Email: rtraulsen@BMT-law.com
KIK INT'L: Angeles Class Suit Remanded to Los Angeles Super. Court
------------------------------------------------------------------
Judge Stanley Blumenfeld, Jr., of the U.S. District Court for the
Central District of California remands the case, CARMEN ANGELES,
Plaintiff v. KIK INTERNATIONAL LLC et al., Defendants, Case No.
2:22-cv-07342-SB-AFM (C.D. Cal.), to the Superior Court of the
State of California for the County of Los Angeles.
Angeles brought the wage and hour case in state court, and KIK
removed it to federal court. In the notice of removal, KIK asserts
that the Court has federal question jurisdiction because Angeles is
subject to collective bargaining agreements (CBAs) and therefore
Section 301 of the Labor Management Relations Act (LMRA), 29 U.S.C.
Sections 141-197, completely preempts Angeles's claims. It also
claims that the Court has diversity jurisdiction. Angeles moved to
remand and KIK opposes.
Angeles filed the case in state court as a putative class action.
Another class action involving similar claims and parties was
pending in state court. The other class action settled, and Angeles
opted out of that settlement. With Angeles' consent, the state
court dismissed her class action allegations, leaving Angeles as
the sole Plaintiff in this case. KIK removed on Oct. 7, 2022.
Angeles does not contest the timeliness of KIK's removal.
In the complaint, Angeles brings the following claims: (1) failure
to pay overtime wages in violation of Cal. Lab. Code Section 510,
(2) failure to pay the minimum wage in violation of Cal. Lab. Code
Section 1197, (3) failure to pay sick leave in violation of Cal.
Lab. Code Section 246, (4) failure to provide meal periods in
violation of Cal. Lab. Code Section 512, (5) failure to pay all
wages upon termination in violation of Cal. Lab. Code Sections
201-02, (6) failure to provide accurate wage statements in
violation of Cal. Lab. Code Section 226, and (7) unfair competition
in violation of Cal. Bus. and Prof. Code Section 17200-17210
(UCL).
To determine whether the LMRA preempts a cause of action, courts in
the Ninth Circuit employ a two-part test cited in Burnside v.
Kiewit Pac. Corp., 491 F.3d 1053, 1059 (9th Cir. 2007). First, a
court determines "whether the asserted cause of action involves a
right conferred upon an employee by virtue of state law, not by a
CBA. Second, a court interprets the CBAs in adjudicating claims.
Judge Blumenfeld begins by analyzing whether any of Angeles' claims
arise solely from the CBAs. He finds that Angeles' complaint does
not refer to the CBAs but rather invokes various provisions of the
California Labor Code and California Business & Professions Code.
Angeles' claims therefore arise under state law. Accordingly, KIK
has not shown that any of Angeles' claims arise solely under the
CBAs. Rather, her claims arise under California law. He proceeds to
assess the second Burnside element, which asks whether the Court
will be required to interpret the CBAs in adjudicating Angeles'
claims.
The parties dispute whether the Court will be required to interpret
the CBAs' provisions.
Judge Blumenfeld states that when the meaning of contract terms is
not the subject of dispute, the bare fact that a CBA will be
consulted in the course of state-law litigation does not result in
preemption. He finds that none of Angeles' claims requires anything
more than such consultation. In short, since Angeles' claims will
at most require a court to apply or "look to," rather than
interpret, the CBAs, Section 301 does not completely preempt these
claims. Therefore, Section 301 does not confer federal question
jurisdiction.
Judge Blumenfeld now considers whether the Court has diversity
jurisdiction, which requires complete diversity among the parties
and an amount in controversy that exceeds $75,000. Angeles does not
dispute that there is complete diversity among the parties but
challenges KIK's showing that the amount in controversy exceeds the
statutory minimum.
A removing defendant must prove the amount in controversy by a
preponderance of the evidence. Relying on conclusory allegations
without support is insufficient. Judge Blumenfeld finds that KIK
fails to carry its burden. KIK has not provided relevant evidence
of the likely fees to be incurred in this action. The probative
value of rates charged and hours expended in other lawsuits depends
on the similarity of the compared cases. KIK has not made a proper
apples-to-apples comparison, and there are reasons to believe that
the circumstances of the case are meaningfully different. Thus, KIK
has not demonstrated that the Court has diversity jurisdiction.
Since KIK has not met its burden of showing that the Court has
federal question or diversity jurisdiction over any of Angeles'
claims, removal was improper, especially in light of the maxim that
"any doubt about the right of removal requires remand." Judge
Blumenfeld grants Angeles' motion to remand and remands the case to
the Los Angeles Superior Court.
A full-text copy of the Court's Dec. 9, 2022 Order is available at
https://tinyurl.com/39x7e3sb from Leagle.com.
KIMBERLY-CLARK CORP: Diapers Caused Chemical Burns, Suit Claims
---------------------------------------------------------------
New York Attorney C.K. Lee and the Lee Litigation Group have filed
a federal class action complaint bringing consumer fraud and
personal injury claims against the Kimberly-Clark Corporation, the
manufacturer of Huggies diapers and a wide range of other hygiene
products. The named plaintiffs -- four parents along with their
minor children -- allege that Huggies diapers caused severe
chemical burns to their infants, which in one case involved a
life-threatening ulcer. The complaint was lodged in the United
States District Court for the Northern District of Texas
(3:22-cv-02717-N), where Kimberly-Clark is headquartered, but the
plaintiffs hail from four different states and seek to represent a
nationwide class of consumers defrauded by Kimberly-Clark.
As detailed in the class action complaint, concerns about the
safety of Huggies diapers have been proliferating for years.
Kimberly-Clark's response to parents' concerns about the safety of
Huggies has always been to dismiss these as about run-of-the-mill
diaper rashes. The company has stated, "We can assure you our
Huggies products can't cause a chemical burn because they're made
of materials which do not create any chemical reaction, nor will
they react with stool and urine."
Relying on the insider knowledge of a whistleblower, former
Kimberly-Clark quality assurance specialist Frank Fritz Kromenaker,
the class action complaint alleges that these assurances are a
bald-faced lie. Mr. Kromenaker explains that Huggies diapers rely
on a proprietary chemical known as Ahcovel, which reacts with an
infant's urine to make it absorbable by the diaper. Ahcovel is a
known skin irritant that can cause serious injury when present in
sufficient quantities. Mr. Kromenaker alleges that Kimberly-Clark
fails to rigorously inspect and maintain the machinery that
dispenses Ahcovel on Huggies diapers, frequently causing excessive
amounts to be dispensed. The complaint alleges that the
disproportionate number of serious injuries reported by parents
using Huggies is the result of Kimberly-Clark's persistent
negligence on this front.
The complaint includes records showing that Kimberly-Clark was
aware of both Ahcovel's potential dangers and its own failure to
properly regulate how much of it is dispensed on diapers.
Additional information about the complaint can be found at
www.huggiesinvestigation.com, or contact C.K. Lee, Esq., at the
following details:
C.K. Lee
Lee Litigation Group, PLLC
148 West 24th Street, 8th Floor
New York, NY 10011
Tel./Text: 1-909-LAWYERS (1-909-529-9377)
Email: info@leelitigation.com [GN]
LANGUAGE LINE: Boyce Sues Over Unpaid Minimum and Overtime Wages
----------------------------------------------------------------
Simone Franco de Andrade Boyce, individually and on behalf of
herself and all others similarly situated v. Language Line
Services, Inc., a Delaware corporation, On Line Interpreters, Inc.,
a Delaware corporation, and DOES 1 through 10, inclusive, Case No.
5:22-cv-08076 (N.D. Cal., Dec. 12, 2022), is brought under the Fair
Labor Standards Act, California Labor Code, and applicable
Industrial Welfare Commission Order ("Wage Order"); and California
Business & Profession ("UCL"), premised on the Defendants' failure
to pay Plaintiff and other similarly-situated employees all earned
minimum and overtime wages, failure to provide compliant
meal-and-rest periods, failure to furnish accurate wage statements,
failure to reimburse reasonable and necessary business expenses,
failure to pay all earned wages due upon separation, and violations
of the UCL.
Under the FLSA and California law, employers must pay all
non-exempt employees an overtime wage premium of pay one and
one-half times their regular rates of pay for all time they spend
working over 40 hours in a workweek. The Defendants failed to pay
the Plaintiff, the Collective Members and the Class Members one and
one-half times their regular rate of pay for all time they spent
working over 40 hours in a workweek. In addition to the minimum
protections of the FLSA, California law requires employers to pay
non-exempt employees an overtime wage premium of pay one and
on-half times their regular rate of pay for all time they spend
working over 8 hours in a day, says the complaint.
The Plaintiff was a full-time employee of the Defendants, who
worked as an Interpreter within the state of California from March
8, 2020 through December 17, 2021.
Language Line Services, Inc. and OLI provide remote translation and
interpretation services to its clients worldwide.[BN]
The Plaintiff is represented by:
Brian S. Kabateck, Esq.
Shant Karnikian, Esq.
Jerusalem F. Beligan, Esq.
KABATECK LLP
633 W. Fifth Street, Suite 3200
Los Angeles, CA 90071
Phone: (213) 217-5000
Email: bsk@kbklawyers.com
sk@kbklawyers.com
jfb@kbklawyers.com
- and -
James L. Simon, Esq.
THE LAW OFFICES OF SIMON & SIMON
5000 Rockside Road
Liberty Plaza – Suite 520
Independence, OH 44131
Phone: (216) 525-8890
Email: james@bswages.com
- and -
Michael L. Fradin, Esq.
8401 Crawford Ave., Ste. 104
Skokie, IL 60076
Phone: (847) 986-5889
Email: mike@fradinlaw.com
LET'S MEAT INC: Kim Sues Over Failure to Pay Minimum Wages
----------------------------------------------------------
Katie Kim and Miguelina Ortega on behalf of themselves and all
others similarly situated v. Let's Meat Inc. d/b/a Let's Meat and
Jung H. Lee aka Jayden, Case No. 1:22-cv-10481 (S.D.N.Y., Dec. 12,
2022), is brought against the Defendants' violations of the Fair
Labor Standards Act and the New York Labor Law, including failure
to pay minimum wages, failure to pay overtime wages in violation of
the FLSA and NYLL; illegal retention of employee gratuities in
violation of FLSA and NYLL; failure to pay for all hours worked in
violation of NYLL; failure to provide accurate wage notices in
violation of NYLL.
The Defendants were/are permitted, under the FLSA and NYLL, to pay
certain tipped employees at a statutory hourly rate that is less
than the standard hourly minimum wage rate so long as the "tips" or
"gratuities" that such tipped employee is expected to receive, when
added to the hourly wages, meet or exceed the standard hourly
minimum wage, and so long as all tips received by the employees are
retained by the employee, and no portion of the tips are retained
by Defendants or given to employees in non-tipped positions.
However, the Defendants have not entitled to avail themselves of
the reduced minimum wage by applying the tip credit allowance for
the Plaintiffs because the Defendants would retain tips and would
pay a portion of the tips earned by Plaintiffs to managerial staff.
The Defendants also siphoned off a portion of the tips earned by
the Plaintiffs to pay the salaries of other staff, including the
salaries of the Restaurant's other employees who were not tipped
employees and did not participate in the tip pool. As such, the
Defendants were obligated to pay the Plaintiffs the standard hourly
minimum wage rate, and not any reduced minimum wage through the
application of a tip credit, says the complaint.
The Plaintiffs were employed by the Defendants as hostesses,
servers, and assistant managers at Let's Meat.
Let's Meat is a Korean BBQ restaurant located in New York
City.[BN]
The Plaintiffs are represented by:
Ryan J. Kim, Esq.
RYAN KIM LAW, P.C.
222 Bruce Reynolds Blvd. Suite 490
Fort Lee, NJ 07024
Email: ryan@RyanKimLaw.com
LIZA LUCION: Faces Class Action Over Immigration Scam in Canada
---------------------------------------------------------------
Zak Vescera, writing for The Mirror, reports that Andres Medellin
thought he had struck gold.
In 2021, Medellin says a Vancouver immigration consultant pitched
him and a room full of other Latin American workers on a wunderkind
Canadian immigration program that could allow anyone to legally
remain and work in the country.
Instead, Medellin is back home in Mexico, his dreams of studying in
Canada on hold and his immigration file full of red flags that will
cause future problems.
Medellin and dozens of other migrant workers, mostly Mexicans, are
suing that consultant, Liza Lucion, alleging she collected
thousands in fees to apply for a Canadian immigration program that
never existed.
The proposed class action lawsuit against Lucion, which is not yet
certified, alleges the consultant's actions deprived clients of
their chance to apply for other, legitimate ways of staying in the
country.
The lawsuit has been filed with the B.C. Supreme Court and Lucion
has filed a statement of defence. The next step is a hearing on
whether the class action lawsuit can proceed.
Some of the clients, like Medellin, have since either chosen or
been forced to leave. Lucion's licence to work as an immigration
consultant has since been indefinitely suspended by the College of
Immigration and Citizenship Consultants.
Lucion categorically denies the allegations against her, which have
yet to be tested in a court of law.
In a statement sent by her lawyer, Lucion said she "made her best
efforts to honestly and in good faith provide foreign nationals in
Canada during the COVID-19 pandemic with information regarding the
options available to maintain legal status in Canada based on
relevant government policies."
She said complainants "likely misunderstood what she told them and
have been encouraged by others to make this vicious attack on her
business and reputation."
Susanna Quail, co-counsel for the proposed class action lawsuit
against Lucion, says the case highlights deep flaws in Canada's
immigration system.
The system is "so prone to exploitation and preying on vulnerable
people," Quail said.
Medellin says he met Lucion at a time of uncertainly. He arrived in
Vancouver in August 2019 on a visitor visa. Medellin had visited
the city when he was 15 and was staying with friends in town.
Then the COVID-19 pandemic began. Medellin said he had
apprehensions about returning home, fearful he would spread the
virus to his mother and family. "I considered myself a visitor that
was stranded in Canada," Medellin said in a phone interview from
Mexico City.
Over time, Medellin said, he began working construction jobs to
make ends meet, getting paid in cash. He knew it was illegal, he
said, and felt ashamed for going around the law.
"I know I was doing that illegally. I don't want people in Canada
to get me wrong. We are proud of working very hard, but shameful at
the same time because of being illegal. It's a sentiment that is
not very easy to communicate," Medellin said. "We feel ashamed
because we really respect the country. It could sound a little
contradictory."
Medellin said a job site supervisor recommended he see Lucion. He
remembers sitting in the waiting room of her consulting firm with
between 10 and 12 other people, mostly Latin American. He said they
received a presentation -- translated by an interpreter into
Spanish -- about a new program, which Lucion said had been opened
to all migrants in response to the COVID-19 pandemic regardless of
their legal status in the country. Medellin said Lucion told them
she had special knowledge of the program, which is why it was not
publicly advertised.
In her filed court response, Lucion said those meetings happened
but argued she had only promoted existing and legitimate
immigration programs into Canada. In the chaos of the early
COVID-19 pandemic, the federal government had implemented policy
changes aimed at helping migrant workers stay in the country,
including temporary measures giving migrant workers more time to
restore temporary residence status. Her statement of defence says
she had an "honestly held belief" that applicants would be legally
eligible for the programs they applied for.
Medellin said Lucion told the crowd the process cost $7,000 -- half
to start, and the other half upon completion. He says she urged
them to apply soon, since spots were limited.
Medellin was suspicious but desperate. He had a dream of getting
legal status in Canada and eventually going to graduate school at
the University of British Columbia to study art history. "My
impression was, if something good comes out from this, I do not
want to be out of it," Medellin said.
He described himself as holding out the money with one hand while
using the other to cover his eyes and turn his head away.
Quail says the roughly 50 other migrant workers who have come
forward describe a similar pattern: an information session of eight
to 12 people, a request for cash, then silence.
"For some people, it appears she took their money and did nothing.
And then for some people she took their money and did other kinds
of applications they weren't actually eligible for," Quail said.
Medellin alleges Lucion had promised she could secure a visa in as
little as two weeks. But his messages to her went largely
unanswered.
At one point, he said Lucion told him she could not explain the
delay because he did not speak English, a language he commanded
well enough to conduct a 45-minute interview with The Tyee.
Concerns about the promises began to spread through the Mexican
community in the Lower Mainland. Medellin said he hosted
information sessions with workers in Stanley Park and the issue was
discussed on social media.
Court filings show Lucion sued two separate people she alleged had
defamed her in a Facebook group. She also sued three other people
after a tense office meeting, where one of the defendants claimed
Lucion had threatened to have the three of them deported. None of
those cases appear to have moved forward in the court system beyond
statements of defence.
It is not the first time Lucion took court action against a critic.
In 2017, she sued a fellow member of a Filipino volleyball team
for, among other things, "purposely hitting the ball aiming to the
plaintiff."
Word about the allegations reached Berenice Díaz Ceballos,
Mexico's consul general in Vancouver, who said the consulate began
to direct affected migrants towards Quail's legal team.
"Some had to leave Canada, because there were no options and they
were in a risky situation. They didn't have status anymore,"
Ceballos said in a November interview. She worries some people may
not know about the lawsuit.
"Here you are deciding or obstructing the opportunities of real
people, of real families," Ceballos said. "When humans are
involved, it's a very sensitive issue."
Quail believes the case highlights longstanding problems with the
Canadian immigration system that place desperate, vulnerable
workers at risk.
Many economic migrant workers coming to the country are on strict
closed permits, allowing them to work only for a specific employer
in a specific location at a specific time. Getting an open work
permit is considerably more difficult.
"At each step of this process, we have people who are very
vulnerable to being scammed by consultants, because people are
really desperate for a way to get status in Canada. They hear it
and they want to believe it. If you can get status in Canada, it's
life-changing," Quail said.
Immigration consultants in Canada do have a regulatory college. In
July, its disciplinary council passed a decision to indefinitely
suspend Lucion's right to practise after it received 11 complaints
about her in the span of two years. But Quail believes oversight of
consultants is lax compared to other professions, like lawyers.
On the other hand, expectations of would-be immigrants are strict.
Amanda Aziz is Quail's co-counsel on the lawsuit and a lawyer at
the Migrant Workers Centre. She says many of her clients are often
stuck untangling themselves from legal trouble after an issue with
an immigration application or being misrepresented by a consultant.
"For the most part, people aren't coming to Canada and enjoying
living here without status and just being flagrant about the
immigration system," Aziz said. "For the most part, people are
trying very hard to make sure their status is legal, working very
hard to make sure they can get their next status. We make it
difficult, and when a mistake is made, we make it very hard for
them to fix."
In October 2021, months after he met Liza Lucion, Medellin got a
visit from immigration officials. He was not deported, he said, but
was told he had to leave the country, an order he complied with. He
is now back in Mexico City. He is currently appealing a rejected
application for a student visa in Canada. He hopes the lawsuit, if
it is certified and successful, will help clear his name with
Canada's immigration officials.
"We know that we could get money out of the class action, but we're
not really concerned about this… Money is not important to us,"
Medellin said. "We want justice." [GN]
MASTERCARD INC: Merricks to Launch Campaign for GBP17-Bil. Claim
----------------------------------------------------------------
John Hyde, writing for The Law Society Gazette, reports that
representatives leading the GBP17bn consumer claim against
Mastercard will launch an 'unprecedented' marketing campaign to
attract millions of people to join the action.
Following his success in the Court of Appeal, lead claimant Walter
Merricks said this will represent the 'largest public noticing
campaign in UK legal history'. Funders will pump GBP600,000 into
the print and digital advertising push targeting national, regional
and social media channels.
The claim relies on a finding by the European Commission that
Mastercard imposed unlawful fees on transactions processed through
its network. The Competition Appeal Tribunal ruled earlier this
year that anyone living in the UK when the claim form was filed in
2016 should be part of the class action. The Court of Appeal
dismissed an appeal against the landmark decision to allow about
three million now-dead people to be included.
Merricks said some 46 million people are in line for a pay-out of
up to GBP300 each and he stressed that no-one will have to pay
anything or risk anything to join.
He added: 'Totalling up to GBP17bn, it's the biggest claim in UK
legal history. Not surprisingly Mastercard have been trying slow up
the case ever since I started it six years ago. Its attempts to
stop the case from proceeding have all failed. It'll still take a
while yet, but today is a key milestone.'
Merricks is being advised on the case by litigation firm Willkie
Farr & Gallagher. Its team is led by partners Boris Bronfentrinker
and Nicola Chesaites. Competition silks Marie Demetriou KC and
Victoria Wakefield KC of Brick Court Chambers are instructed to
represent the class of UK consumers. The 'noticing campaign' has
been undertaken by class action administrators Epiq and its global
noticing arm Hilsoft Notifications.
The case is the first mass consumer claim brought under the
collective action regime introduced by parliament in the Consumer
Rights Act 2015. The legislation was designed to enable collective
actions to be brought by a class that has suffered loss due to
competition law breaches.
A Mastercard spokesperson said: 'This case isn't about helping
consumers. This flawed claim is being pushed by lawyers and their
financial backers trying to make money for themselves and is likely
to take years to conclude. We'll continue to fight it and are
confident that, once the facts are presented in court, the case
will be thrown out.' [GN]
MELVIN PETERSON: Wilson Files Suit in D. Minnesota
--------------------------------------------------
A class action lawsuit has been filed against Melvin Peterson, et
al. The case is styled as Edward William Wilson, Linnea Gatton, on
behalf of themselves and all others similarly situated v. Honorable
Melvin Peterson, Hennepin County Probate Judge, and their
successors in office; Chris Stange, William Dorsey, Jeff Spartz,
Thomas Ticen, Richard Kremer, John Derus, E. R. Robb, Sam Sivanich,
Nancy Olkon, Golden Valley Health Center, Inc., Hennepin County
Probate Court, Hennepin County Board of Commissioners, Hennepin
County, Arthur Noot, individually and in his capacity as
Commissioner of the Department of Public Welfare of the State of
Minnesota, and their successors in office, Case No.
4:78-cv-00153-WMW (D. Minn., Dec. 12, 2022).
The nature of suit is stated as Other Civil Rights for the Civil
Rights Act.
Hennepin County -- https://www.hennepin.us/ -- is a county in the
U.S. state of Minnesota.[BN]
The Defendants are represented by:
Kelly K. Pierce, Esq.
HENNEPIN COUNTY ATTORNEY'S OFFICE
300 South 6th Street, Suite A2000
Minneapolis, MN 55487
Phone: (612) 348-5488
Fax: (612) 348-8299
Email: kelly.pierce@hennepin.us
META PLATFORMS: C.C. Suit Removed to M.D. North Carolina
--------------------------------------------------------
The case styled as C.C., individually and on behalf of similarly
situated persons v. Meta Platforms, Inc. formerly known as:
Facebook, Inc., Novant Health, Inc., Case No. 22-CVS-4687 was
removed from the Forsyth County Superior Court, to the U.S.
District Court for the Middle District of North Carolina on Nov.
10, 2022.
The District Court Clerk assigned Case No. 1:22-cv-00970-UA-JEP to
the proceeding.
The nature of suit is stated as Other P.I.
Meta Platforms, Inc. -- https://investor.fb.com/home/default.aspx
-- doing business as Meta and formerly named Facebook, Inc., and
TheFacebook, Inc., is an American multinational technology
conglomerate based in Menlo Park, California.[BN]
The Defendant is represented by:
Gabriel G. Snyder, Esq.
Janet Ward Black, Esq.
WARD BLACK LAW
208 W. Wendover Ave.
Greensboro, NC 27401
Phone: (336) 510-2152
Fax: (336) 510-2169
Email: gsnyder@wardblacklaw.com
jwblack@wardblacklaw.com
The Defendant is represented by:
Lauren R Goldman, Esq.
GIBSON, DUNN & CRUTCHER LLP
200 Park Avenue
New York, NY 10166-0193
Phone: (212) 351-4000
Email: lgoldman@gibsondunn.com
- and -
Matthew T. Martens, Esq.
WILMER CUTLER PICKERING HALE AND DORR, LLP
1875 Pennsylvania Ave., NW
Washington, DC 20006
Phone: (202) 663-6921
Email: matthew.martens@wilmerhale.com
- and -
Trenton James Van Oss, Esq.
GIBSON, DUNN & CRUTCHER LLP
1050 Connecticut Avenue, N.W.
Washington, DC 20036
Phone: (202) 887-3716
Email: tvanoss@gibsondunn.com
- and -
Jennifer K. Van Zant, Esq.
Jim W Phillips, Jr.
BROOKS PIERCE MCLENDON HUMPHREY LEONARD
P.O. BOX 26000
230 N. ELM ST., STE 2000
Greensboro, NC 27420
Phone: (336) 373-8850
Email: jvanzant@brookspierce.com
jphillips@brookspierce.com
- and -
David Balser, Esq.
KING & SPALDING
1180 Peachtree St. NE, Suite 1700
Atlanta, GA 30309
Phone: (404) 572-5109
Email: dbalser@kslaw.com
- and -
Marisa Maleck, Esq.
KING & SPALDING
1700 Pennsylvania Ave., NW
Washington, DC 20006
Phone: (202) 626-9117
Email: mmaleck@kslaw.com
- and -
Robert Griest, Esq.
KING & SPALDING
1180 Peachtree Street
Atlanta, GA 30309
Phone: (404) 572-2824
Email: rgriest@kslaw.com
- and -
Steven Wilson Quick, Esq.
BROOKS PIERCE MCLENDON HUMPHREY & LEONARD, LLP
POB 1800
Raleigh, NC 27602
Phone: (919) 839-0300
Email: wquick@brookspierce.com
MILTON ADAIR TINGLING: Justin Files Suit in S.D. New York
---------------------------------------------------------
A class action lawsuit has been filed against Milton Adair
Tingling. The case is styled as Mr. Daudi Justin, and all others
similarly situated, Community Service Society v. Milton Adair
Tingling, in his official capacity as County Clerk of New York
County and Commissioner of, Case No. 1:22-cv-10370 (S.D.N.Y., Dec.
8, 2022).
The nature of suit is stated as Other Civil Rights for the Civil
Rights Act.
Milton Adair Tingling was Clerk of County of New York in the State
of New York.[BN]
The Plaintiffs are represented by:
Perry Grossman, Esq.
NEW YORK CIVIL LIBERTIES UNION
125 Broad St. 19th Floor
New York, NY 10004
Phone: (212) 607-3300
Fax: (212) 607-3318
Email: pgrossman@nyclu.org
N.Y.C. BICYCLES: Rodriguez Files ADA Suit in E.D. New York
----------------------------------------------------------
A class action lawsuit has been filed against N.Y.C. Bicycles, Inc.
The case is styled as Daniel Rodriguez, on behalf of himself and
all others similarly situated v. N.Y.C. Bicycles, Inc., Case No.
1:22-cv-07510 (E.D.N.Y., Dec. 11, 2022).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
NYC Bicycles -- https://www.bicyclesnyc.com/ -- is a bikes,
electric bike shop serving New York City.[BN]
The Plaintiff is represented by:
Mark Rozenberg, Esq.
STEIN SAKS, PLLC
One University Plaza, Ste. 620
Hackensack, NJ 07601
Phone: (201) 282-6500
Email: mrozenberg@steinsakslegal.com
NATIONAL VISION: Maisnier Suit Removed to N.D. California
---------------------------------------------------------
The case captioned as Paul F. Maisnier, individually and on behalf
of all others similarly situated v. NATIONAL VISION, INC. dba
AMERICA'S BEST CONTACTS AND EYEGLASSES; and DOES 1-50, inclusive,
Case No. 22CV018224 was removed from the Superior Court of the
State of California for the County of Alameda, to the United States
District Court for the Northern District of California on Dec. 9,
2022, and assigned Case No. 3:22-cv-07859.
The Complaint alleged causes of action for: failure to pay wages
including overtime as required by Labor Code; failure to provide
meal periods as required by Labor Code and IWC Wage Orders; failure
to provide rest periods as required by Labor Code; failure to pay
timely wages required by Labor Code; failure to provide accurate
itemized wage statements as required by Labor Code; failure to
indemnify necessary business expenses as required by Labor Code;
Unlawful Deductions from Wages; Violation of Business & Professions
Code.[BN]
The Defendants are represented by:
Coby M. Turner, Esq.
Phillip J. Ebsworth, Esq.
SEYFARTH SHAW LLP
400 Capitol Mall, Suite 2300
Sacramento, CA 95814-4428
Phone: (916) 448-0159
Facsimile: (916) 558-483
Email: cturner@seyfarth.com
pebsworth@seyfarth.com
NEW YORK, NY: Court Dismisses Without Prejudice Goring v. Carter
----------------------------------------------------------------
Judge Ronnie Abrams of the U.S. District Court for the Southern
District of New York dismisses the case, LASALLE GORING, Plaintiff
v. N.Y.C./D.O.C./V.C.B.C. WARDEN CARTER; N.Y.C./D.O.C./V.C.B.C.
CAPTAIN GUERRA; 3-AA HOUSING UNIT CAPTAIN; N.Y.C./D.O.C./V.C.B.C.
CAPTAIN JOHN DOE INTAKE SUPERVISING CAPTAIN; N.Y.C./D.O.C./V.C.B.C.
CAPTAIN HORTON, Defendants, Case No. 21-CV-8989 (RA) (S.D.N.Y.),
without prejudice.
Goring, proceeding pro se, filed the action alleging that his
constitutional rights were violated while in the custody of the New
York City Department of Correction.
On Oct. 19, 2021, Goring, along with lead pro se Plaintiff Michael
Lee and several other Individual Plaintiffs, filed a putative class
action complaint alleging that his constitutional rights were
violated while he was in custody at the Vernon C. Bain Center ("VCB
Center") on Rikers Island.
On Nov. 1, 2021, Chief Judge Swain severed the original action into
individual cases, including Goring's. On Dec. 9, 2021, the Court
directed the New York City Law Department to identify the Defendant
"Captain John Doe" on duty during the day of the complained of
conduct, and ordered the Plaintiff to file an amended complaint,
naming the newly identified individual as a defendant, within 30
days of receiving that information.
On March 7, 2022, the defense counsel notified the Court that three
captains had been identified and that she had served Plaintiff with
their names by mail at the VCB Center. The next day, defense
counsel informed the Court that the Plaintiff was no longer in
custody of the Department of Correction.
On March 10, 2022, the Plaintiff failed to appear for an initial
case management conference with Magistrate Judge Parker. That same
day, Judge Parker issued a briefing schedule on the Defendants'
motion to dismiss, and instructed the Defendants to obtain
Plaintiff's updated contact information from the Department of
Correction and mail him a copy of the order. On March 23, 2022, an
order from the Court dated Feb. 9, 2022 and mailed to the
Plaintiff's VCB Center address, was returned as undeliverable with
no forwarding address.
On April 22, 2022, the defense counsel notified the Court that she
had communicated with the Plaintiff by phone and email "for the
first time" and had informed the Plaintiff that he was ordered to
amend the complaint and to update the Court with his address. On
April 29, 2022, the Defendants filed their motion to dismiss.
On Aug. 8, 2022, after the Plaintiff failed to amend his complaint
or otherwise respond, the Court directed him to submit his
opposition by Aug. 30, 2022, and reminded him of his obligation to
notify the Court of any change of address -- and that the Court may
dismiss the action if he fails to do so.
On Sept. 1, 2022, the Court again issued an order directing the
Plaintiff to file an opposition, or a letter indicating that he
intends to pursue the action, and warned that failure to do so
could result in dismissal. After receiving no communication from
the Plaintiff, on Oct. 17, 2022, the Court issued a final order,
warning that if the Plaintiff fails to respond to the Court's Sept.
1, 2022 order by Nov. 11, 2022, the Court will dismiss the action
for failure to prosecute. The Plaintiff did not comply with that
order; indeed, he has not responded or communicated with the Court
since the complaint was filed.
Judge Abrams finds that the Plaintiff's non-compliance warrants
dismissal. On balance, however, and in light of the Plaintiff's pro
se status, he concludes that a "less drastic" sanction than
dismissal with prejudice is appropriate. Any prejudice to the
Defendants has been minor: the case is at an early stage, and based
on the record, it does not appear that the delay "caused any
particular, or specially burdensome, prejudice to defendants beyond
the delay itself." Moreover, the action has not substantially
burdened the Court's docket: the Court has not decided any
substantive motions, presided over any discovery, or scheduled
trial.
Under these circumstances, Judge Abrams finds that dismissal
without prejudice is a less harsh, and more appropriate, sanction
for the Plaintiffs' failure to communicate with the Court or to
comply with the Court's orders. Accordingly, the action is
dismissed without prejudice pursuant to Federal Rule of Civil
Procedure 41(b). The Clerk of Court is respectfully directed to
terminate all pending motions and to close the case.
A full-text copy of the Court's Dec. 9, 2022 Order is available at
https://tinyurl.com/2fxb6pea from Leagle.com.
NEW YORK, NY: Olivierre Files Suit in N.Y. Cty. Clerk
-----------------------------------------------------
A class action lawsuit has been filed against The Board of
Education of The City School District. The case is styled as Mawuli
M. Olivierre, and similarly situated employee v. The Board of
Education of The City School District, Case No. 101178/2022 (N.Y.
Cty. Clerk., Dec. 12, 2022).
The case type is stated as "Supreme Court General Index Reg.
(General)."[BN]
The Plaintiff appears pro se.
NEW YORK, NY: Taxi Drivers Sue Over Post-Arrest License Suspensions
-------------------------------------------------------------------
David Meyer, writing for New York Post, reports that more than
5,600 taxi and for-hire vehicle drivers with arrests on their
records claim the Taxi and Limousine Commission unjustly suspended
their licenses as their criminal cases played out in court -- and
are now seeking damages, advocates told The Post.
The drivers' suspensions -- which occurred between 2003 and 2020 --
were ultimately resolved, but only after months out of work and an
arduous legal process, according to the impacted cabbies.
A federal judge ruled in 2019 that the TLC's process for appealing
license suspensions was unconstitutional because the agency
declined to consider "evidence of a driver's ongoing danger to
health and public safety."
Such evidence must now be considered as a result. Since then, the
portion of suspensions that get reversed has increased from
virtually none to 65%, said Daniel Ackman, the lead attorney on the
class-action suit.
"The suspensions have all been resolved by other means by now, but
what they do have to do is pay damages to people that should not
have been suspended at all, which to my mind is almost all of
them," Ackman said, referring to TLC officials.
"The TLC has no process for making anyone whole."
For-hire advocates estimate over 20,000 drivers could be eligible
for damages, which the judge, Richard Sullivan, now of the New York
City-based Second Circuit Court of Appeals, has ordered to be
adjudicated separately from the main lawsuit.
At least 5,600 plaintiffs in the class-action have signed up for
hearings in Manhattan federal court to determine what if any
monetary damages they are owed, advocates said.
Among them is Eddison Damian, 36, who said he spent three weeks out
of work in 2018 after TLC suspended his license and vehicle plate
over an arrest in a case that was quickly dismissed.
It's unclear what Damian, of Astoria, Queens, was charged with, but
he said he was taken into custody after a man robbed and assaulted
him at a convenience store -- and then released a day later when a
judge heard the case.
"The next day they said, 'Apologies, Mr. Damian. This should have
never happened. Go home,'" he recalled. "TLC, right away they
suspended my license. My wife was getting her bachelor's degree. I
was the only income in the house."
Other drivers seeking to sign onto the effort have until Jan. 13,
said New York Taxi Workers Alliance Director Bhairavi Desai.
"These hearings, they were just a sham," Desai said. "The TLC did
not conduct proper hearings to determine whether or not someone
actually met the criteria under the rule to have suspension."
The TLC did not comment. [GN]
NEW YORK: Asks Permission to File Up to 30 Pages Memorandum
-----------------------------------------------------------
In the class action lawsuit captioned as Disability Rights New York
(DRNY ), et al. v. New York State, et al., Case No.
1:17-cv-06965-RRM-MMH (E.D.N.Y.), the Defendants ask permission to
serve and later file with the Court a memorandum up to 30 pages in
length.
Counsel for DRNY have consented to this request. Defendants thank
the Court for its consideration.
Pursuant to the Court's Scheduling Order dated September 19, 2022,
the Defendants will be serving their memorandum in opposition to
the Plaintiff's motion for class certification on Monday, December
12, 2022. Due to the number and complexity of the issues presented
by the motion, Defendants' opposition is expected to be 30 pages,
which is five pages more than the presumptive limit of 25.
A copy of the Defendants' motion dated Dec. 9, 2022 is available
from PacerMonitor.com at https://bit.ly/3UNnE21 at no extra
charge.[CC]
The Defendants are represented by:
Letitia James, Esq.
James Miro, Esq.
STATE OF NEW YORK
OFFICE OF THE ATTORNEY GENERAL
WWW.AG.NY.GOV
28 Liberty Street
NEW YORK, NY 10005
Telephone: (212) 416-8610
E-mail: James.Mirro@ag.ny.gov
NEW YORK: Bertrand Sues Over Unpaid Overtime Wages
--------------------------------------------------
Troy D. Bertrand, individually and on behalf of all other similarly
situated employees v. DEPARTMENT OF EDUCATION, ARCHDIOCESE OF NEW
YORK, CATHOLIC COMMUNCAL FUND OF THE ARCHDIOCESE OF NY, INC.,
CATHOLIC CHARITIES OF THE ARCHDIOCESE OF NEW YORK, CATHOLIC
CHARITIES COMMUNITY SERVICES, ARCHDIOCESE OF NEW YORK, and OUR LADY
OF ANGELS CHURCH, Case No. 1:22-cv-10445 (S.D.N.Y., Dec. 9, 2022),
is brought seeking damages and other appropriate relief for their
claims, including violations of the Fair Labor Standards Act, New
York Labor Law, as well as the supporting New York State Department
of Labor Regulations for the Defendants' failure to pay the
Plaintiff and Class Members overtime compensation, straight-time
minimum wage compensation, and comply with timeliness of pay,
notice, and record keeping requirements.
During his workday, the Plaintiff was allotted 1 hour for breaks
and meals, which was supposed to result in a standard 8 hour
workday. However, due to the administrative requirements of the
Plaintiff's employment following his promotion, the Plaintiff
consistently worked in excess of 40 hours per week throughout his
employment with the Defendants. As a result of working from home in
addition to his regular on-site work hours, the Plaintiff worked an
additional of 10 to 21 hours overtime each week, depending on the
week. The Defendants failed to pay the Plaintiff any straight-time
or overtime compensation for all hours worked in excess of 40 hours
per week. The Plaintiff was a non-exempt employee entitled to
overtime compensation for all hours worked in excess of 40 hours
per week, says the complaint.
The Plaintiff was employed by the Defendants as a maintenance
worker, custodian, and porter.
ADNY DOE is a not-for-profit organization with a principal place of
business located in Bronx, New York.[BN]
The Plaintiff is represented by:
Gregory A. Nahas, Esq.
PARDALIS & NOHAVICKA, LLP
950 Third Avenue, 11th Floor
New York, NY 10022
Phone: (212) 213-8511
Fax: (347) 897-0094
Email: Greg@pnlawyers.com
NEWAGE INC: Bids for Lead Plaintiff Appointment Due February 6
--------------------------------------------------------------
Rosen Law Firm, a global investor rights law firm, on Dec. 7
disclosed that it has filed a class action lawsuit on behalf of
purchasers of the securities of NewAge, Inc. (NASDAQ: NBEV) (OTC:
NBEVQ) between January 18, 2018 and October 18, 2022, both dates
inclusive (the "Class Period"). The lawsuit seeks to recover
damages for NewAge investors under the federal securities laws.
To join the NewAge class action, go to
https://rosenlegal.com/submit-form/?case_id=10143 or call Phillip
Kim, Esq. toll-free at 866-767-3653 or email pkim@rosenlegal.com or
cases@rosenlegal.com for information on the class action.
According to the lawsuit, defendants throughout the Class Period
made false and/or misleading statements and/or failed to disclose,
among other things, that: (1) NewAge never entered into a
"distribution agreement" or "initiative in partnership" with the
military and never had plans to sell its products at all
commissaries and exchanges around the world; (2) NewAge did not
have adequate inventory of its products to fulfill this reported
agreement; (3) NewAge did not actually expand its product lines or
distribution agreements as represented; (4) the Company lacked
adequate internal controls; (5) as a result the Company had a
heightened risk of regularly scrutiny and ultimately subject to an
SEC investigation and action; and (6) as a result of the foregoing,
defendants' statements about its business, operations, and
prospects, were materially false and misleading and/or lacked a
reasonable basis at all relevant times. When the true details
entered the market, the lawsuit claims that investors suffered
damages.
A class action lawsuit has already been filed. If you wish to serve
as lead plaintiff, you must move the Court no later than February
6, 2023. A lead plaintiff is a representative party acting on
behalf of other class members in directing the litigation. If you
wish to join the litigation, go to
https://rosenlegal.com/submit-form/?case_id=10143 or to discuss
your rights or interests regarding this class action, please
contact Phillip Kim, Esq. of Rosen Law Firm toll free at
866-767-3653 or via e-mail at pkim@rosenlegal.com or
cases@rosenlegal.com.
NO CLASS HAS YET BEEN CERTIFIED IN THE ABOVE ACTION. UNTIL A CLASS
IS CERTIFIED, YOU ARE NOT REPRESENTED BY COUNSEL UNLESS YOU RETAIN
ONE. YOU MAY RETAIN COUNSEL OF YOUR CHOICE. YOU MAY ALSO REMAIN AN
ABSENT CLASS MEMBER AND DO NOTHING AT THIS POINT. AN INVESTOR'S
ABILITY TO SHARE IN ANY POTENTIAL FUTURE RECOVERY IS NOT DEPENDENT
UPON SERVING AS LEAD PLAINTIFF.
Rosen Law Firm represents investors throughout the globe,
concentrating its practice in securities class actions and
shareholder derivative litigation. Rosen Law Firm was Ranked No. 1
by ISS Securities Class Action Services for number of securities
class action settlements in 2017. The firm has been ranked in the
top 4 each year since 2013. Rosen Law Firm has achieved the largest
ever securities class action settlement against a Chinese Company.
Rosen Law Firm's attorneys are ranked and recognized by numerous
independent and respected sources. Rosen Law Firm has secured
hundreds of millions of dollars for investors.
Attorney Advertising. Prior results do not guarantee a similar
outcome.
CONTACT:
Laurence Rosen, Esq.
Phillip Kim, Esq.
The Rosen Law Firm, P.A.
275 Madison Avenue, 40thFloor
New York, NY 10016
Tel: (212) 686-1060
Toll Free: (866) 767-3653
Fax: (212) 202-3827
lrosen@rosenlegal.com
pkim@rosenlegal.com
cases@rosenlegal.com
www.rosenlegal.com [GN]
NORTH CAROLINA: Faces Class Action Over Foster Children Abuse
-------------------------------------------------------------
Matthew Prensky, writing for Wilmington StarNews, reports that
Crystal Klunk's daughter suffers inside one of North Carolina's
psychiatric residential treatment facilities -- a place that
resembles solitary prison confinement more than a care facility
meant to help kids with mental health issues, the mom says.
Spotty supervision, sporadic treatment and only occasional
schooling have been part of the girl's experience, Klunk said. They
have not seen their daughter, who first tried to kill herself at
age 10, in months. The staff at their daughter Alexis' center
reportedly has not updated Klunk on the teen's status.
"She needs to be in a place that is able to keep eyes on her and
needs to know what's going on, and they don't," said the mother
from Canton, North Carolina. "That's consistent with any PRTF. I
can't tell you that any PRTF has been good, because if they were,
our kid wouldn't still be in one."
A six-month investigation in 2021 by North Carolina and Virginia
journalists in the USA TODAY Network featured Klunk and other
families, plus shocking details of neglect and abuse inside these
locked centers. Now, citing the "Locked Away" reporting series, a
potentially landmark class-action lawsuit has been filed in federal
court against the state of North Carolina.
The lawsuit aims to reduce North Carolina's focus on these
institutions and to shift many children to more appropriate support
services based in their home communities. The Middle District Court
filing by Disability Rights North Carolina, the state NAACP and
children themselves cites gruesome allegations of kids subjected to
physical, psychological and sexual abuse at these psychiatric
centers -- reports that were brought to light in the multi-part
Locked Away investigation.
Plaintiffs claim there is a systemic effort by North Carolina
health and human services officials to warehouse foster children
with mental health disabilities in these locked wards. The state's
decisions have failed vulnerable children and wasted taxpayer money
on what is a punishing and expensive system of centers, the filing
says.
The plaintiffs, which include four children and their guardians,
want North Carolina to provide adequate and appropriate services in
the community for foster kids who need mental health care. It will
take an investment in a web of services at multiple stages of a
kid's mental health journey -- and could be financed in part with
ample dollars the state is currently sending to PRTFs.
The lawsuit alleges children inside PRTFs are confined to
prison-like settings "under the care of a poorly trained and
understaffed workforce, where they are subject to broken bones,
sprains, bruises, and dangerous physical and chemical restraints;
withstand sexual and physical abuse, bullying, and hate speech by
both youth and staff; and face mental health deterioration and
cocktails of strong psychotropic medications."
"DHHS is failing hundreds of children with disabilities in foster
care, warehousing them in dangerous, expensive, damaging
institutions," said Virginia Knowlton Marcus, chief executive
officer of Disability Rights North Carolina. "These children
deserve and have the right to a family and place in our communities
where they can meet their full potential. Instead, they receive
institutionalization and irreparable harm to their childhood and
wellbeing."
The state Department of Health and Human Services said it is
reviewing the suit, but that beyond this filing, North Carolina
government is aware it needs to improve help for these children
with complex mental health issues. The head of DHHS is the named
defendant in the lawsuit, representing the state.
An emailed response from DHHS said it was undertaking a few
planning steps and making a new division in the department. Also,
it listed some future needed action, from the state's perspective:
"More quality placement options for children with complex
behavioral health needs. The number of kinship and foster families,
acute care options, and high-quality, therapeutic residential
facility placements is not enough to meet demand."
"Access to quality community-based crisis, treatment, and
prevention services in all 100 counties."
"More staff and better pay for workers who serve these children via
local and state DSS agencies, service providers, and facilities."
Locked away investigation:Punching, predators, neglect: Kids suffer
inside dismal North Carolina psychiatric centers
Failing children:Psychiatric centers fail many children. North
Carolina keeps spending gobs of money on them.
Lawsuit targets horrifying reports of abuse in state system
The new lawsuit alleges state officials are aware of the dangers
children face inside these centers, yet they've more than doubled
North Carolina's use of the facilities since 2010.
At one PRTF in Brunswick County, Carolina Dunes Behavioral Health,
a 12-year-old boy had his wrist fractured during an encounter when
the staffer forced the child up against a door. The facility didn't
report the child's injury initially. The boy only was taken to the
hospital after four days had passed, according to investigative
reports.
A child at another PRTF threw milk, provoking a staff member to
throw it back and take away the child's food as punishment for her
behavior, according to allegations in the lawsuit. The
confrontation upset the child, and the staff dealt with that
dangerously. "The staff pulled the child's head down by her braids
and shoved her face into a pillow, even though this type of
life-threatening prone restraint was forbidden by DHHS over ten
years ago," according to the lawsuit.
As of November 2021, more than 500 children involved in the state's
child welfare system had been placed in a PRTF during the previous
12 months, according to the lawsuit.
PRTFs are designed to provide intensive, temporary treatment of a
child's mental health. However, the state of North Carolina uses
the facilities "as a long-term 'place to live,'" where children
stay for extended periods of time.
In the case of the Klunks' daughter, Alexis, she first went to a
PRTF in 2015.
The Klunks took Alexis in as a therapeutic foster child when she
was 3. At 6, they adopted her. Klunk and her husband had no plans
of adopting a child, but when they met Alexis, it felt as though
she belonged in the family.
She's bounced around PRTFs both in North Carolina and elsewhere
consistently since 2019. Alexis is still at a center, which says it
works tirelessly to ensure all children are healthy and that
families are thriving.
Alexis would not be eligible for the class-action because she was
adopted by the family and is not in state custody, but her story
was one that helped USA TODAY Network bring realities of these
psychiatric centers to light.
The USA TODAY Network's North Carolina newsrooms also reached out
in 2021 to competitor McClatchy newspapers in Charlotte and Raleigh
so that the series could support even more statewide reporting.
Those newsrooms advanced the reporting on PRTFs in 2021 with added
local interviews and storytelling. News outlets have continued to
follow the statewide health crisis first fully documented by Locked
Away and its reporting team featuring veteran investigator Fred
Clasen-Kelly.
We contacted an expert not associated with the class-action lawsuit
for context about these types of legal filings.
Jessica Feierman, senior managing director of the Juvenile Law
Center, said similar litigation can help force an issue and prevent
harm that is happening. "Young people tend to have a really hard
time having their voices heard, and they're uniquely vulnerable
when they're placed under state custody," she said.
"The law can play a really important role in discovering what's
happening to young people behind closed doors, lifting up their
voices and having them heard, and of course creating legal
protections to protect their rights."
Feierman said it takes more than a court action to fashion a
successful environment -- it's a community decision about caring
for children.
"In the justice system and the child welfare system, what we see is
that having young people in large locked facilities is a failed
model, and what they really need is comprehensive supports in their
homes and communities," she said.
'Locked Away' investigation cited in lawsuit
Using dozens of expert interviews, an extensive review of
investigative reports and discussions with survivors and families,
the USA TODAY Network' s Locked Away series highlighted a flawed
system of public care that repeatedly fails children.
The investigation revealed that North Carolina spends more than
$100 million each year to send children to psychiatric residential
treatment facilities with no proof that these centers work.
The investigation found that center workers used physical
restraints, seclusion and other inventions hundreds of times,
despite experts saying those tactics should be used sparingly to
avoid traumatizing children. In some cases, PRTF staff used methods
that were banned, or used chemical interventions that DHHS staff
admitted it didn't monitor.
The Locked Away investigation also discovered children spent 184
days in PRTFs on average, more than twice the stated goal, and that
at least 227 kids were sent to facilities in other states,
including centers with histories of alleged abuse and/or
mistreatment.
"It feels like they get these kids in there, and instead of
providing treatment, they're just housing kids," Klunk said.
"That's not what these children need. They don't need to be in
housing. They need treatment." [GN]
NURSELOOP USA: Johnson Files Suit in Cal. Super. Ct.
----------------------------------------------------
A class action lawsuit has been filed against Nurseloop USA, et al.
The case is styled as Keaishi Johnson, on behalf of herself and
others similarly situated v. Nurseloop USA, Nurseloop, Inc., Pierre
Martin Reyes, Does 1-20, Case No. 34-2022-00331126-CU-OE-GDS (Cal.
Super. Ct., Sacramento Cty., Dec. 8, 2022).
The nature of suit is stated as "Other Employment - Civil
Unlimited."
Nurseloop -- https://www.nurseloopusa.com/ -- is a mobile
application based healthcare staffing medium that helps both nurses
and facilities.[BN]
The Plaintiff is represented by:
Ashkan Shakouri, Esq.
SHAKOURI LAW FIRM
11601 Wilshire Blvd Fl 5
Los Angeles, CA 90025
Phone: (310) 575-1827
OAKHURST PARTNERS: Fagnani Files ADA Suit in S.D. New York
----------------------------------------------------------
A class action lawsuit has been filed against Oakhurst Partners,
LLC. The case is styled as Mykayla Fagnani, on behalf of herself
and all other persons similarly situated v. Oakhurst Partners, LLC,
Case No. 1:22-cv-10491 (S.D.N.Y., Dec. 12, 2022).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Oakhurst Partners, LLC was founded in 2003. The Company's line of
business includes manufacturing textile products.[BN]
The Plaintiff is represented by:
Michael A. LaBollita, Esq.
GOTTLIEB & ASSOCIATES
150 E. 18 St., Suite PHR
New York, NY 10003
Phone: (212) 228-9795
Email: michael@gottlieb.legal
PROVIDENT BANCORP: Rosen Law Firm Investigates Securities Claims
----------------------------------------------------------------
WHY: Rosen Law Firm, a global investor rights law firm, continues
to investigate potential securities claims on behalf of
shareholders of Provident Bancorp, Inc. (NASDAQ:PVBC) resulting
from allegations that Provident may have issued materially
misleading business information to the investing public.
SO WHAT: If you purchased Provident securities you may be entitled
to compensation without payment of any out of pocket fees or costs
through a contingency fee arrangement. The Rosen Law Firm is
preparing a class action seeking recovery of investor losses.
WHAT TO DO NEXT: To join the prospective class action, go to
https://rosenlegal.com/submit-form/?case_id=10252 or call Phillip
Kim, Esq. toll-free at 866-767-3653 or email pkim@rosenlegal.com or
cases@rosenlegal.com for information on the class action.
WHAT IS THIS ABOUT: On November 15, 2022, Provident filed a Form NT
10-Q Notification of inability to timely file Form 10-Q for the
quarter ended September 30, 2022. The Form NT 10-Q stated the delay
was due to "estimates that [Provident] will report net loss of
approximately $27.5 million for the quarter ended September 30,
2022, compared to net income of $5.1 million for the quarter ended
September 30, 2021."
On this news, Provident's stock price fell $2.20, or over 21%, to
close on November 16, 2022 at $7.90 on unusually high trading
volume.
WHY ROSEN LAW: We encourage investors to select qualified counsel
with a track record of success in leadership roles. Often, firms
issuing notices do not have comparable experience, resources, or
any meaningful peer recognition. Many of these firms do not
actually litigate securities class actions. Be wise in selecting
counsel. The Rosen Law Firm represents investors throughout the
globe, concentrating its practice in securities class actions and
shareholder derivative litigation. Rosen Law Firm has achieved the
largest ever securities class action settlement against a Chinese
Company. Rosen Law Firm was Ranked No. 1 by ISS Securities Class
Action Services for number of securities class action settlements
in 2017. The firm has been ranked in the top 4 each year since 2013
and has recovered hundreds of millions of dollars for investors. In
2019 alone the firm secured over $438 million for investors. In
2020, founding partner Laurence Rosen was named by law360 as a
Titan of Plaintiffs' Bar. Many of the firm's attorneys have been
recognized by Lawdragon and Super Lawyers.
Attorney Advertising. Prior results do not guarantee a similar
outcome.
Contact Information:
Laurence Rosen, Esq.
Phillip Kim, Esq.
The Rosen Law Firm, P.A.
275 Madison Avenue, 40th Floor
New York, NY 10016
Tel: (212) 686-1060
Toll Free: (866) 767-3653
Fax: (212) 202-3827
lrosen@rosenlegal.com
pkim@rosenlegal.com
cases@rosenlegal.com
www.rosenlegal.com [GN]
R.J.D. WILLIAMS: Court Certifies Class Action Over School Abuse
---------------------------------------------------------------
Jessie Anton, writing for CBC News, reports that after more than a
decade, a class-action lawsuit against the now-closed R.J.D.
Williams Provincial School for the Deaf in Saskatoon has been
certified.
In 2009, more than 50 former students formally signed on to the
suit, alleging they were physically, sexually and psychologically
abused at the school between 1955 and 1991.
Last month, a Saskatchewan Court of King's Bench judge certified
the class action with three plaintiffs -- referred to only by
initials -- now listed on the court documents.
"A class proceeding would be a fair, efficient and manageable
method of advancing the claim of the class members in a meaningful
way and the relative advantages of a class action outweigh the
other alternatives," said Saskatchewan Chief Justice Martel
Popescul in the Nov. 9 decision.
Tony Merchant, the plaintiff's lead counsel on the case, said this
certification is a long time coming for many of his clients.
With many students having lived at the school, often throughout
holidays, Merchant said the institution had complete control over
their lives, making it especially difficult for them to raise
concern.
"The students really were the perfect victims in a sense. They
couldn't pick up a telephone and complain to their families because
they couldn't talk," he said in an interview with CBC News
"It was really hard for them."
Despite only a trio of plaintiffs listed on the current court
documents, Merchant said his office has received hundreds of calls
over the years from former students alleging abuse at the school --
both at the hands of staff and other students -- and he expects
more people to come forward.
According to court documents, a revised litigation plan is to be
served to the defendant -- the Government of Saskatchewan, which
ran the school -- within 60 days of the certification for comment.
The compensation the complainants are seeking will be on an
individual basis, Merchant noted. However, it's his hope the
province will come forward with a proposal.
"It would be beneficial for [former students] to have the
government recognize the wrong and put the hurt behind them, but
the compensation is late in their lives in many instances," he
said, adding it's possible some initial plaintiffs have died since
the suit was filed.
In an email to CBC News on Dec. 5, a spokesperson for the Ministry
of Justice said the province has "no further comment at this time,"
as the matter remains before the courts. [GN]
RACKSPACE TECHNOLOGY: Q Industries Sues Over Failure to Secure Data
-------------------------------------------------------------------
Q Industries, Inc., John Moser, and Dana Moser Wilkinson,
individually and on behalf of all others similarly situated v.
RACKSPACE TECHNOLOGY, INC., Case No. 5:22-cv-01322-JKP (W.D. Tex.,
Dec. 12, 2022), is brought for damages brought by the Plaintiffs
against the Defendant, for its failure to exercise reasonable care
in securing and safeguarding the sensitive, proprietary data of its
customers, and its failure to exercise reasonable care to maintain
the stable, reliable cloud computing services its customers rely on
in conducting their respective businesses.
Rackspace's business is predicated on provision of secure and
resilient email and cloud storage services because of the
sensitivity of the information stored within its hosted Exchange
environment, as well as the messaging and calendaring features that
make up its core business functions. The Plaintiffs and Class
members relied on these services to conduct their business and
other related matters.
On December 2, 2022, unauthorized parties gained access to
Rackspace's servers, disrupting its cloud services and exfiltrating
sensitive customer data, including sensitive proprietary
information belonging to Plaintiffs (the "Data Breach").
As of the filing of this Complaint, the Plaintiffs and Class
members are still unable to access their business email account or
propriety data stored on Rackspace's servers, nor do they know when
they will be able to access their email or data. Moreover, there
has been no assurance offered from Rackspace that the compromised
Private Information has been recovered or destroyed. Rackspace only
offered its impacted customers free access to Microsoft Exchange
Plan 1 licenses on Microsoft 365 for the duration of the Data
Breach, which does not guarantee security of the Plaintiffs'
Private Information and, as Rackspace itself warned, would make it
difficult to preserve data for those with hybrid environments as
archives would not be available.
Accordingly, the Plaintiffs assert claims for negligence, gross
negligence, negligent misrepresentation, breach of express
contract, breach of implied contract, breach of confidence, breach
of implied covenant of good faith and fair dealing, unfair and
deceptive trade practices, breach of implied warranty of
merchantability, breach of express warranty of merchantability,
unjust enrichment, and declaratory relief, says the complaint.
The Plaintiff Q Industries is a Rackspace customer and uses
Rackspace services in the usual course of its business.
Rackspace Technology, Inc. is a San Antonio, Texas based cloud
computing company, with a principal place of business located in
SanAntonio, Texas.[BN]
The Plaintiffs are represented by:
Jorge A. Herrera, Esq.
Javier L. Herrera, Esq.
Laura E. Gutierrez Tamez, Esq.
Frank Herrera, Jr., Esq.
THE HERRERA LAW FIRM, INC.
1800 W. Commerce Street
San Antonio, Texas 78207
Phone: (210) 224-1054
Facsimile: (210) 228-0887
Email: jherrera@herreralaw.com
javier@herreralaw.com
ltamez@herreralaw.com
fherrera@herreralaw.com
- and -
Jason S Rathod, Esq.
Nicholas A Migliaccio, Esq.
MIGLIACCIO & RATHOD LLP
412 H Street NE
Washington, DC 20002
Phone: (202) 470-3520
Fax: (202) 800-2730
Email: jrathod@classlawdc.com
nmigliaccio@classlawdc.com
- and -
Robert Mackey, Esq.
LAW OFFICES OF ROBERT MACKEY
P.O. Box 279
Sewickley PA 15143
Phone: 412-370-9110
Email: bobmackeyesq@aol.com
REALPAGE INC: Bohn Sues Over Conspiracy to Fix Housing Prices
-------------------------------------------------------------
Christopher Bohn, Cameron Pond, and Destinee Sanders, individually
and on behalf of all others similarly situated v. REALPAGE, INC.;
GREYSTAR REAL ESTATE PARTNERS, LLC; LINCOLN PROPERTY CO.; FPI
MANAGEMENT, INC.; MID-AMERICA APARTMENT COMMUNITIES, INC.; AVENUE5
RESIDENTIAL, LLC; EQUITY RESIDENTIAL; CAMDEN PROPERTY TRUST; ESSEX
PROPERTY TRUST, INC.; THRIVE COMMUNITIES MANAGEMENT, LLC; SECURITY
PROPERTIES INC.; B/T WASHINGTON, LLC d/b/a BLANTON TURNER; and
INDEPENDENCE REALTY TRUST, INC., Case No. 2:22-cv-01743 (W.D.
Wash., Dec. 9, 2022), is brought arising from the Defendants'
conspiracy to fix, raise, maintain, and stabilize rental housing
prices.
Defendants are RealPage, Inc., the developer of a software platform
called "AI Revenue Management" (previously known as "YieldStar"),
and several managers of large-scale residential apartment buildings
that used RealPage's software platform to coordinate and agree upon
rental housing pricing, among other things, throughout the United
States.
AI Revenue Management works by collecting vast amounts of
non-public data from its client property managers regarding lease
transactions, rent prices, occupancy levels, and virtually every
other possible data point relevant to rent prices. This data is fed
into an algorithm, along with additional data collected from
RealPage's myriad other data analytics and rental management
software products. The algorithm then generates a rental price for
each of RealPage's client's available units, which is updated
daily. RealPage makes sure all of its clients know that to maximize
revenues, they must accept the software's rental price at least
80-90 percent of the time, and RealPage's "Revenue Management
Advisors" monitor clients to ensure compliance. As the allegations
and evidence set forth below demonstrate, RealPage and the property
managers who use its revenue management services constitute a
price-fixing cartel, and the revenue growth they have achieved is
possible only through coordinated price setting.
With the assurance that other cartel members are setting prices
using the same algorithm, property managers can allow a larger
share of their units to remain vacant while maintaining higher
rental prices across their properties, and thereby obtain greater
revenue. This strategy is only effective because of the pricing
coordination among competing property managers enabled by this
cartel, which is why RealPage repeatedly and explicitly emphasizes
that for the software to work properly, everyone needs to accept
its suggested price at least 80-90 percent of the time. Beyond the
anticompetitive exchange of nonpublic and competitively sensitive
information among competing property managers, RealPage uses
additional mechanisms to facilitate coordination among cartel
members and prevent cheating by conspiracy participants.
First, by allowing property managers to outsource their
rent-setting process, RealPage causes them to consider higher rent
prices than they ever would have before. Second, RealPage polices
cartel members by applying heavy pressure on them to accept the
algorithm's suggested price at least 80-90 percent of the time. The
AI Revenue Management service includes more than its rent-setting
algorithm. Third, the software also recommends lease renewal dates
for its clients' properties. Using RealPage's vast store of data on
lease transactions, the algorithm suggests dates that are staggered
to avoid temporary periods of oversupply resulting from the natural
ebb and flow of the market. This further reduces the incentive for
property managers to undercut would-be competitors, which is the
strongest during these temporary oversupply periods. Fourth,
RealPage facilitates direct information exchanges between
competitors and provides opportunities for direct coordination of
prices. It hosts online forums, organizes in-person events for its
clients, and maintains standing committees of cartel members to
advise on pricing strategy.
As the property managers acknowledge, they are competitors. Yet,
RealPage's clients shared a common goal of increasing rent prices
across the board and understood that RealPage—which has been
explicit that its aim is to help its clients "outperform the market
by 3% to 7%"6—was the means by which to do it. RealPage's clients
include many of the nation's largest property managers who often
control a majority of rental units in desirable neighborhoods of
major cities.
The Defendants' price fixing conspiracy is a per se unlawful
restraint of trade under Section 1 of the Sherman Act. It has
resulted in artificially inflated rent prices and a diminished
supply of affordable rental units. Plaintiffs and the Class, who
rent in residential markets throughout the United States from
property managers that use RealPage's software, paid significant
overcharges on rent and suffered harm from the reduced availability
of rental units they could reasonably afford, says the complaint.
The Plaintiffs paid higher rental prices by reason of the
Defendants' violation.
RealPage provides software and services to managers of residential
rental apartments, including the YieldStar/AI Revenue Management
software.[BN]
The Plaintiffs are represented by:
Steve W. Berman, Esq.
Breanna Van Engelen, Esq.
HAGENS BERMAN SOBOL SHAPIRO LLP
1301 Second Avenue, Suite 2000
Seattle, WA 98101
Phone: (206) 623-7292
Email: steve@hbsslaw.com
breannav@hbsslaw.com
- and -
Gregory S. Asciolla, Esq.
Karin E. Garvey, Esq.
Veronica M. Bosco, Esq.
Johnny M. Shaw, Esq.
DICELLO LEVITT, LLC
485 Lexington Avenue, Suite 1001
New York, NY 10017
Phone: (646) 933-1000
Email: gasciolla@dicellolevitt.com
kgarvey@dicellolevitt.com
vbosco@dicellolevitt.com
jshaw@dicellolevitt.com
- and -
Brian M. Hogan, Esq.
DICELLO LEVITT, LLC
Ten North Dearborn Street, Sixth Floor
Chicago, IL 60602
Phone: (312) 214-7900
Email: bhogan@dicellolevitt.com
RELIABLE POULTRY: Canion Sues Over Failure to Pay Overtime Wages
----------------------------------------------------------------
Jeffery Canion, individually and on behalf of all others similarly
situated v. RELIABLE POULTRY LLC, Case No. 5:22-cv-05236-TLB (W.D.
Ark., Dec. 12, 2022), is brought under the Fair Labor Standards Act
and the Arkansas Minimum Wage Act, for declaratory judgment,
monetary damages, liquidated damages, prejudgment interest, and
costs, including reasonable attorneys' fees, as a result of the
Defendant's failure to pay Plaintiff and other hourly-paid
employees lawful overtime compensation for hours worked in excess
of 40 hours per week.
The Plaintiff and other hourly-paid employees regularly worked in
excess of 40 hours per week throughout their tenure with Defendant.
Plaintiff and other hourly-paid employees were not paid
one-and-one-half times their base hourly rate for each hour they
worked over 40 in a workweek. Instead, the Defendant calculated the
overtime rate for the Plaintiff and other hourly-paid employees as
beginning at forty-five or fifty hours a week, based on their
position. The Defendant violated the FLSA and AMWA by not paying
the Plaintiff and other hourly paid employees an overtime rate of
one-and-one-half times their regular rate for all hours worked over
40 in a workweek, says the complaint.
The Plaintiff was employed as a generator technician from August
2017 until May 2021.
Reliable Poultry LLC is a manufacturer and supplier of poultry farm
buildings, supplies, and equipment.[BN]
The Plaintiff is represented by:
Chris Burks, Esq.
WH LAW | WE HELP
1 Riverfront Pl. – Suite 745
North Little Rock, AR 72114
Phone: (501) 891-6000
Email: chris@wh.law
RINGCENTRAL: Aliav Sues Over Deceptive Advertising and Marketing
----------------------------------------------------------------
Alon Aliav, on behalf of himself and all others similarly situated
v. RINGCENTRAL, INC., a, California Corporation; and DOES 1 through
50, Inclusive, Case No. 22STCV38543 (Cal. Super. Ct., Dec. 12,
2022), is brought arising out of the the Defendant's deceptive
advertising and marketing of its "Unlimited Services Package" (the
"Challenged Service"), in violation of the California's False
Advertising Law; as well as California's Unfair Competition Law and
the California Legal Remedies Act; and to seek redress for the
Defendant's contractual breaches, and for the Defendant's unjust
enrichment.
The Defendant advertised and marketed, the Challenged Service to
consumers and profited from the Challenged Service throughout
California and the United States based on the misrepresentations
about the Challenged Service's purported advantages, quality, and
characteristics. Furthermore, the Defendant owns, controls and
oversees the distribution of the Challenged Service.
The Challenged Service is purchased by consumers to communicate
with others through unlimited phone and SMS texting mediums.
Through its uniform marketing and advertising claims, the Defendant
falsely advertises the Challenged Service as unlimited. When a
consumer sees the Defendant's advertising scheme for the Challenged
Service, s/he reasonable relied on the term "unlimited" and
believes that purchasing the Defendant's services will include
unlimited SMS texting. However, the Defendant's "unlimited
services" are not actually unlimited. In reality, the Defendant
places restrictions on buyers' SMS texts and constricts consumers
to one hundred text messages. Moreover, the Defendant's deceptive
advertising is further perpetuated by the fact that the Defendant
fails to disclose any notice to consumers that the so-called
unlimited service actually entails limits on SMS texts.
Hence, the Defendant has made, and continue to make, false,
deceptive, and misleading claims and promises to consumers about
the characteristics quality and advantages of the Challenged
Service in a pervasive, statewide, and nationwide marketing scheme
that falsely touts the benefits of the Challenged Service and
pricing. Based on the fact that the Defendant's advertising misled
the Plaintiff and all others like him, the Plaintiff brings this
class action against the Defendant to seek reimbursement of the
monetary damages he and the Class Members incurred due to the
Defendant's false and deceptive representations about the benefits
and value of the Challenged Service.
The Plaintiff seeks relief in this action individually and on
behalf of all persons statewide in California who used the
Defendant's services for common law fraud, intentional
misrepresentation, and negligent misrepresentation, says the
complaint.
The Plaintiff initially purchased the Challenged Service in May
2022.
RingCentral is a corporation that provides cloud-based
communication and collaboration products and services, including
SMS texting.[BN]
The Plaintiff is represented by:
Shalini Dogra, Esq.
DOGRA LAW GROUP PC
2219 Main Street, Unit 239
Santa Monica, CA 90405
Phone: (747) 234-6673
Fax: (310) 868-0170
SCHOLASTIC INC: Rodriguez Files ADA Suit in E.D. New York
---------------------------------------------------------
A class action lawsuit has been filed against Scholastic, Inc. The
case is styled as Daniel Rodriguez, on behalf of himself and all
others similarly situated v. Scholastic, Inc., Case No.
1:22-cv-07508 (E.D.N.Y., Dec. 11, 2022).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Scholastic Corporation -- https://www.scholastic.com/home -- is an
American multinational publishing, education and media company that
publishes and distributes books, comics, and educational materials
for schools, parents, and children.[BN]
The Plaintiff is represented by:
Mark Rozenberg, Esq.
STEIN SAKS, PLLC
One University Plaza, Ste. 620
Hackensack, NJ 07601
Phone: (201) 282-6500
Email: mrozenberg@steinsakslegal.com
SHERWIN-WILLIAMS COMPANY: Bagley Suit Removed to C.D. California
----------------------------------------------------------------
The case styled as Brandi Bagley, on behalf of herself and all
others similarly situated v. The Sherwin-Williams Company, Case No.
30-02022-01279963-CU-FR-CXC was removed from the Superior Court of
California, County of Orange, to the U.S. District Court for the
Central District of California on Nov. 10, 2022.
The District Court Clerk assigned Case No. 8:22-cv-02061-JVS-ADS to
the proceeding.
The nature of suit is stated as Other Fraud.
Sherwin-Williams Company -- http://www.sherwin-williams.com/-- is
an American Cleveland, Ohio–based company in the paint and
coating manufacturing industry.[BN]
The Plaintiff is represented by:
Jeffrey Douglas Kaliel, Esq.
KALIELGOLD PLLC
1100 15th Street NW 4th Floor
Washington, DC 20005
Phone: (202) 350-4783
Email: jkaliel@kalielpllc.com
- and -
Sophia Goren Gold, Esq.
KALIEL GOLD PLLC
950 Gilman Street Suite 200
Berkeley, CA 94710
Phone: (202) 350-4783
Email: sgold@kalielgold.com
The Defendant is represented by:
Darren K Cottriel, Esq.
JONES DAY
3161 Michelson Drive Suite 800
Irvine, CA 92612
Phone: (949) 851-3939
Fax: (949) 553-7539
Email: dcottriel@jonesday.com
- and -
Louis A. Chaiten, Esq.
JONES DAY
901 Lakeside Avenue
Cleveland, OH 44114
Phone: (216) 586-3939
Fax: (216) 579-0212
Email: lachaiten@jonesday.com
- and -
Sharyl A. Reisman, Esq.
JONES DAY
250 Vesey Street
New York, NY 10281
Phone: (212) 326-3405
Fax: (212) 755-7306
Email: sareisman@JonesDay.com
SINGULARITY FUTURE: Bids for Lead Plaintiff Appointment Due Feb. 7
------------------------------------------------------------------
WHY: Rosen Law Firm, a global investor rights law firm, on Dec. 11
disclosed that it has filed a class action lawsuit on behalf of
purchasers of the securities of Singularity Future Technology Ltd.
f/k/a Sino-Global Shipping America Ltd. (NASDAQ: SGLY) between
February 12, 2021 and November 17, 2022, both dates inclusive (the
"Class Period"). A class action has already been filed. If you wish
to serve as lead plaintiff, you must move the Court no later than
February 7, 2023.
SO WHAT: If you purchased Singularity securities during the Class
Period you may be entitled to compensation without payment of any
out of pocket fees or costs through a contingency fee arrangement.
WHAT TO DO NEXT: To join the Singularity class action, go to
https://rosenlegal.com/submit-form/?case_id=9855 or call Phillip
Kim, Esq. toll-free at 866-767-3653 or email pkim@rosenlegal.com or
cases@rosenlegal.com for information on the class action. A class
action lawsuit has already been filed. If you wish to serve as lead
plaintiff, you must move the Court no later than February 7, 2023.
A lead plaintiff is a representative party acting on behalf of
other class members in directing the litigation.
WHY ROSEN LAW: We encourage investors to select qualified counsel
with a track record of success in leadership roles. Often, firms
issuing notices do not have comparable experience, resources, or
any meaningful peer recognition. Many of these firms do not
actually litigate securities class actions. Be wise in selecting
counsel. The Rosen Law Firm represents investors throughout the
globe, concentrating its practice in securities class actions and
shareholder derivative litigation. Rosen Law Firm has achieved the
largest ever securities class action settlement against a Chinese
Company. Rosen Law Firm was Ranked No. 1 by ISS Securities Class
Action Services for number of securities class action settlements
in 2017. The firm has been ranked in the top 4 each year since 2013
and has recovered hundreds of millions of dollars for investors. In
2019 alone the firm secured over $438 million for investors. In
2020, founding partner Laurence Rosen was named by law360 as a
Titan of Plaintiffs' Bar. Many of the firm's attorneys have been
recognized by Lawdragon and Super Lawyers.
DETAILS OF THE CASE: According to the lawsuit, throughout the Class
Period, Defendants made materially false and/or misleading
statements and/or failed to disclose: (1) the Company's former
Chief Executive Officer ("CEO") Yang Jie's true educational
background, that he had an outstanding arrest warrant in China,
committed forgery, was the largest shareholder and Vice President
of Finance, for a Nasdaq-listed lending company, China Commercial
Credit ("CCC"), which failed after reporting massive losses; (2)
material related party transactions with SOS Information Technology
New York Inc. ("SOS") (where Jie's wife was Vice President) and
Rich Trading Co. Ltd USA ("Rich Trading") ; (3) independent
director John Levy's long tenure as a director of CCC; (4) the
Company lacked adequate internal controls and as a result had a
heightened risk of scrutiny and ultimately was subject to a United
States Attorney's Office for the Southern District of New York and
SEC investigation and action as well as a potential delisting by
NASDAQ; and as a result (5) the Company's statements during the
Class Period about the historical financial and operational metrics
and purported market opportunities did not accurately reflect the
actual business, operations, and financial results and trajectory
of the Company, and were materially false and misleading, and
lacked a factual basis. When the true details entered the market,
the lawsuit claims that investors suffered damages.
To join the Singularity class action, go to
https://rosenlegal.com/submit-form/?case_id=9855 or call Phillip
Kim, Esq. toll-free at 866-767-3653 or email pkim@rosenlegal.com or
cases@rosenlegal.com for information on the class action.
No Class Has Been Certified. Until a class is certified, you are
not represented by counsel unless you retain one. You may select
counsel of your choice. You may also remain an absent class member
and do nothing at this point. An investor's ability to share in any
potential future recovery is not dependent upon serving as lead
plaintiff.
Rosen Law Firm represents investors throughout the globe,
concentrating its practice in securities class actions and
shareholder derivative litigation. Rosen Law Firm was Ranked No. 1
by ISS Securities Class Action Services for number of securities
class action settlements in 2017. The firm has been ranked in the
top 4 each year since 2013. Rosen Law Firm has achieved the largest
ever securities class action settlement against a Chinese Company.
Rosen Law Firm's attorneys are ranked and recognized by numerous
independent and respected sources. Rosen Law Firm has secured
hundreds of millions of dollars for investors.
Attorney Advertising. Prior results do not guarantee a similar
outcome.
Contact Information:
Laurence Rosen, Esq.
Phillip Kim, Esq.
The Rosen Law Firm, P.A.
275 Madison Avenue, 40th Floor
New York, NY 10016
Tel: (212) 686-1060
Toll Free: (866) 767-3653
Fax: (212) 202-3827
lrosen@rosenlegal.com
pkim@rosenlegal.com
cases@rosenlegal.com
www.rosenlegal.com [GN]
SINGULARITY FUTURE: Crivellaro Sues Over Decline in Market Value
----------------------------------------------------------------
Piero Crivellaro, Individually and on behalf of all others
similarly situated v. SINGULARITY FUTURE TECHNOLOGY, LTD. F/K/A
SINO-GLOBAL SHIPPING AMERICA LTD., YANG JIE, LEI CAO, ZHIKANG
HUANG, TUO PAN, XIAOHUAN HUANG, JING SHAN, TIELING LIU, JING WANG,
and LEI NIE, Case No. 1:22-cv-07499 (E.D.N.Y., Dec. 9, 2022), is
brought on behalf of persons or entities who purchased or otherwise
acquired publicly traded Singularity securities between February
12, 2021 and November 17, 2022, inclusive (the "Class Period"),
seeking to recover compensable damages caused by the Defendants'
violations of the federal securities laws under the Securities
Exchange Act of 1934 as a result of the Defendants' wrongful acts
and omissions, and the precipitous decline in the market value of
the Company's common shares.
Singularity represented itself during the Class Period as global
logistics company that pivoted to develop a presence in the
blockchain supply management area and distribute, sell and market
crypto mining equipment. During the Class Period, Singularity and
the Individual Defendants, failed to disclose to investors (a) the
CEO's true adverse background; (b) related party transactions; and
(3) inadequate internal controls which resulted in United States
Attorney's Office for the Southern District of New York and SEC
investigations as well as a potential delisting by NASDAQ. As a
result of this adverse information, Plaintiffs and the Class were
damaged.
The statements were materially false and/or misleading because they
misrepresented and failed to disclose the following adverse facts
pertaining to the Company's business, operations, and prospects,
which were known to Defendants or recklessly disregarded by them.
Specifically, Defendants made false and/or misleading statements
and/or failed to disclose, among other things: (1) Jie's true
educational background, that he had an outstanding arrest warrant
in China, committed forgery, and was the largest shareholder and VP
of Finance for a Nasdaq-listed lending company, CCC, which failed
after reporting massive losses; (2) material related party
transactions with SOS and Rich Trading; (3) Director John Levy's
prior tenure from January 2013 through December 2016 as a director
of CCC which failed amidst detailed allegations that Jie, when he
was an executive and shareholder in CCC, misappropriated assets;
and (4) the Company lacked adequate internal controls and as a
result had a heightened risk of scrutiny and ultimately was subject
to a United States Attorney's Office for the Southern District of
New York and SEC investigation and action as well as a potential
delisting by NASDAQ.
On May 5, 2022, Hindenburg Research issued its Report about
Singularity entitled "Singularity Future Technology: This Nasdaq
Listed Company's CEO Is A Fugitive, On The Run For Allegedly
Operating A Massive Ponzi Scheme". On this news, Singularity's
stock fell 40.63% to close at $4.80 per share on May 5, 2022 on
unusually heavy trading volume, damaging investors. It fell further
on May 6, 2022 13.21% to close at $4.24 per share. On November 16,
2022, Singularity filed with the SEC its Form 8-K signed by Shan.
The November 16, 2022 Form 8-K disclosed governmental
investigations of Singularity related to the claims raised by
Hindenburg Research on May 5, 2022 and other related matters. On
this news, on November 16, 2022, Singularity's stock fell 22.97% to
close at $2.09 per share on unusually heavy trading volume,
damaging investors. It fell further on November 17, 2022 84.96% to
close at $1.13 per share.
As a result of Defendants' wrongful acts and omissions, and the
precipitous decline in the market value of the Company's common
shares, Plaintiff and other Class members have suffered significant
losses and damages, says the complaint.
The Plaintiff purchased Singularity securities during the Class
Period.
Singularity is incorporated in Virginia and its head office is
located in Great Neck Plaza, New York.[BN]
The Plaintiff is represented by:
Philip Kim, Esq.
Laurence Rosen, Esq.
THE ROSEN LAW FIRM, P.A.
275 Madison Avenue, 40th Floor
New York, NY 10016
Phone: (212) 686-1060
Fax: (212) 202-3827
Email: pkim@rosenlegal.com
lrosen@rosenlegal.com
SIRIUS XM: Stipulated Protective Order Entered in Potts Class Suit
------------------------------------------------------------------
In the case, JESSICA POTTS, an individual, on behalf of herself,
the State of California, as a private attorney general, and on
behalf of all others similarly situated, Plaintiff v. SIRIUS XM
RADIO INC., a Delaware Corporation; PANDORA MEDIA, LLC, a Delaware
Limited Liability Company; and DOES 1 to 50, Defendants, Case No.
2:21-cv-09755 DMG (KSx) (C.D. Cal.), Magistrate Judge Karen L.
Stevenson of the U.S. District Court for the Central District of
California, Western Division, enters the Parties' Stipulated
Protective Order.
The Defendants maintain that discovery in the Action is likely to
involve the production of confidential, proprietary, or private
information for which special protection from public disclosure and
from use for any purpose other than prosecuting the litigation may
be warranted. Accordingly, the Parties stipulate to and petition
the Court to enter the Stipulated Protective Order.
The Parties acknowledge that the Stipulated Protective Order does
not confer blanket protections on all disclosures or responses to
discovery and that the protection it affords from public disclosure
and use extends only to the limited information or items that are
entitled to confidential treatment under the applicable legal
principles. They further acknowledge that the Stipulated Protective
Order does not entitle them to file confidential information under
seal; Civil Local Rule 79-5 sets forth the procedures that must be
followed and the standards that will be applied when a Party seeks
permission from the court to file material under seal.
The protections conferred by the Stipulated Protective Order cover
not only Protected Material, but also (1) any information copied or
extracted from Protected Material; (2) all copies, excerpts,
summaries, or compilations of Protected Material; and (3) any
testimony, conversations, or presentations by Parties or their
Counsel that might reveal Protected Material. Any use of Protected
Material at trial will be governed by the orders of the trial
judge. This Stipulated Protective Order does not govern the use of
Protected Material at trial.
Even after final disposition of the litigation, the confidentiality
obligations imposed by this Stipulated Protective Order will remain
in effect until a Designating Party agrees otherwise in writing or
a court order otherwise directs. Final disposition will be deemed
to be the later of (1) dismissal of all claims and defenses in this
Action, with or without prejudice; and (2) final judgment herein
after the completion and exhaustion of all appeals, rehearings,
remands, trials, or reviews of the Action, including the time
limits for filing any motions or applications for extension of time
pursuant to applicable law.
Any Party or Non-Party may challenge a designation of
confidentiality at any time that is consistent with the Court's
Scheduling Order.
If a Receiving Party learns that, by inadvertence or otherwise, it
has disclosed Protected Material to any person or in any
circumstance not authorized under this Stipulated Protective Order,
the Receiving Party must immediately (a) notify in writing the
Designating Party of the unauthorized disclosures, (b) use its best
efforts to retrieve all unauthorized copies of the Protected
Material, (c) inform the person or persons to whom unauthorized
disclosures were made of all the terms of the Stipulated Protective
Order, and (d) request such person or persons to execute the
"Acknowledgment and Agreement to Be Bound."
After the final disposition of the Action, within 60 days of a
written request by the Designating Party, each Receiving Party must
return all Protected Material to the Producing Party or destroy
such material.
Any violation of this Stipulated Protective Order may be punished
by any and all appropriate measures including, without limitation,
contempt proceedings and/or monetary sanctions.
A full-text copy of the Court's Dec. 9, 2022 Stipulated Protective
Order is available at https://tinyurl.com/bdh6wtbe from
Leagle.com.
Amanda C. Sommerfeld -- asommerfeld@jonesday.com - Donna C.
Saadati-Soto -- dsaadatisoto@jonesday.com -- JONES DAY, Los
Angeles, CA.
Aileen H. Kim -- aileenkim@jonesday.com -- JONES DAY, Irvine, CA,
Attorneys for DEFENDANTS SIRIUS XM RADIO INC. and PANDORA MEDIA,
LLC.
Jonathan Melmed -- jm@melmedlaw.com -- Kyle D. Smith --
ks@melmedlaw.com -- Joanne Kim -- joanne@melmedlaw.com -- MELMED
LAW GROUP P.C., Los Angeles, California.
Daniel B. Swerdlin -- daniel@allbridgeslegal.com -- ALL BRIDGES
LEGAL, P.C., San Francisco, CA, Attorneys for the PLAINTIFF, the
PUTATIVE CLASS, and the AGGRIEVED EMPLOYEES.
SKIPTHEDISHES: Osler Hoskin Attorneys Discuss Class Action Ruling
-----------------------------------------------------------------
Laura Fric, Mary Angela Rowe and Sarah Firestone, of Osler, Hoskin
& Harcourt LLP, in an article for Mondaq, report that when can
parties unilaterally implement arbitration clauses "after the fact"
to cover existing claims?
Earlier this year, a class action was certified against Uber
despite a late-breaking amendment to the underlying agreement that
would have included an arbitration clause. In that case, the court
left the effect of the arbitration clause to the common issues
judge. More recently, a Manitoba court concluded that part of the
"specific purpose" of such an arbitration clause was to prevent
putative class action proceedings, and the defendant company "would
obtain an unfair advantage" if the arbitration clause was enforced
to terminate the plaintiff's proposed class action: Pokornik v.
SkipTheDishes Restaurant Services Inc., 2022 MBKB 178. Justice
Chartier specifically noted the arbitration provision did not
permit class arbitration.
Pokornik illustrates that courts will permit class actions to
proceed in the face of arbitration clauses if those clauses are
unconscionable. Pokornik follows in the wake of a 2020 Supreme
Court of Canada decision which found that an arbitration clause
that would have required a proposed class of Uber drivers to
dispute their claims at great cost (and seemingly in the Hague) was
unconscionable and unenforceable: Uber Technologies Inc. v. Heller,
2020 SCC 16 (Uber). (Osler reviewed that decision here and the
certification decision, mentioned above, here.)
Factual background
The plaintiff started working as a courier for SkipTheDishes
(Skip), a restaurant delivery service, in 2014. Her original
courier agreement did not contain an arbitration clause.
In July 2018, the plaintiff was notified by email that Skip was
implementing a new courier agreement which, for the first time,
contained a mandatory arbitration clause. The new agreement was to
take effect a week later, and couriers had to agree to keep driving
for Skip.
One day before the new agreement took effect, the plaintiff filed
her class action claim.
Analysis
The Court of King's Bench of Manitoba held that the original
courier agreement governed the relationship between the parties.
Even though the new agreement said it governed disputes arising
under "any previous agreement", the plaintiff brought her claim
before the new agreement came into effect, and the arbitration
clause did not expressly cover an existing court action (paras
28–29).
Moreover, and in any event, Justice Chartier concluded that the
plaintiff had not agreed to the terms of the new agreement. The
plaintiff informed Skip that she did not agree to the terms of the
agreement and was doing so only under protest to continue to work
— and so advised before clicking "I Agree". Because Skip never
responded or objected to her email, the court considered the
defendant to have acquiesced to the plaintiff's position (paras
30–31).
Justice Chartier, applying the framework in Uber, held in the
alternative that the arbitration agreement was invalid on the
grounds of unconscionability due to the absence of consideration
(para 32). Justice Chartier was satisfied that there was a clear
inequality of bargaining power, and that, under the circumstances,
the arbitration agreement constituted an improvident bargain (paras
34 and 39). (This is in tension with the Court's earlier finding
that the arbitration clause in the new agreement would not have
barred Ms. Pokornik's class proceeding.)
Interestingly, factoring into this analysis was that Justice
Chartier inferred that part of the "specific purpose" of the
arbitration agreement was to prevent putative class action
proceedings. Justice Chartier looked to Skip's 2020 Annual Report,
which stated that the arbitration clause could " . . .
significantly reduc[e] the size of any class action and the related
risks" (para 40). As such, Justice Chartier held that "the
defendant would obtain an unfair advantage if the arbitration
provisions were found to be valid" (para 40).
Justice Chartier noted that, while arbitration should be respected
as a cost-effective and efficient method of dispute resolution,
clauses that preclude the possibility of class arbitration -- such
as the one in Skip's new agreement -- "undermine that principle of
efficient adjudication of claims on a class basis" (para 41).
Finally, Justice Chartier considered the arbitration clause invalid
under Section 7(2) of the Act because there was no consideration to
the plaintiff for entering the new courier agreement. The removal
of a class action would benefit the defendant rather than the
plaintiff, and the mandatory arbitration provision precludes class
arbitration. Additionally, there was particular detriment in this
instance, given the plaintiff had already filed an action.
Takeaways
Courts have emphasized respect for arbitration clauses because
parties may have a legitimate interest in arbitrating disputes.
However, Pokornik suggests that courts will carefully consider
arbitration clauses in the class action context. Standalone class
action waivers have been sharply criticized, and Pokornik suggests
arbitration clauses may be less likely to be enforced where there
is specific evidence the clauses were intended to circumvent class
proceedings.
Pokornik also suggests courts may be reluctant to enforce
arbitration clauses that apply retroactively. This may have
factored into the Uber certification decision.
Pokornik continues to develop case law following the Uber decision
in the class action context, and when arbitration agreements are
contained in contracts of adhesion specifically. Following Uber,
Pokornik suggests that arbitration clauses may not be enforced on
the basis of unconscionability when there is unequal bargaining
power and when the bargain was improvident. Requiring the parties
to arbitrate would -- as the court held in this case --
disadvantage one party by prohibiting class arbitrations. While
post-Uber case law is still developing, parties may wish to keep
this analysis in mind when drafting arbitration provisions. [GN]
SOMNIA INC: Harris Sues Over Data Breach
----------------------------------------
Thomas Booth Harris, on behalf of himself and all others similarly
situated v. SOMNIA, INC. and PALM SPRINGS ANESTHESIA SERVICES,
P.C., Case No. 7:22-cv-09550-PMH (S.D.N.Y., Nov. 8, 2022), is
brought seeking to remedy these harms on behalf of himself and all
similarly situated individuals whose personally identifiable
information ("PII") and protected health information ("PHI") was
accessed during the Data Breach.
The Defendant lost control over highly sensitive personal
information stored in its computer system in a July 2022 data
breach by cybercriminals ("Data Breach"). The Defendant Palm
Springs Anesthesia Services, P.C. ("PSAS"), a provider of
anesthetic services with an office in Palm Springs, California,
contracts with Somnia to manage PSAS' business and gives Somnia
access to PSAS' highly sensitive patient information.
On July 11, 2022, Somnia detected suspicious activity in its
computer systems. Cybercriminals were able to pilfer the sensitive
and confidential PII and PHI belonging to over 386,000 consumers.
The stolen PII and PHI included names, Social Security numbers,
dates of birth, driver's license numbers, financial account
information, health insurance policy number, medical record
numbers, Medicaid and Medicare identification numbers and health
information such as treatment and diagnosis information.
PSAS's patient information was among the PII and PHI that was
stolen in the Data Breach. After discovering the Data Breach in
July 2022, Somnia and PSAS waited more than 3 months to alert the
victims about the Data Breach. The unreasonable delay between
detection of the Data Breach and providing notice left impacted
patients in the dark, with no means to prevent or stop
cybercriminals from using their PII and PHI. By entrusting its
patient PII and PHI with Somnia, PSAS had a duty to ensure Somnia
was appropriately safeguarding this highly sensitive patient
information. PSAS failed in that regard. PSAS acknowledges in the
Data Breach Notice that Somnia's security measures were not
sufficient.
The Defendants failed in their respective duties to protect PII and
PHI from unauthorized disclosure because Somnia did not implement
or adhere to cybersecurity measures that would have prevented or
stopped cybercriminals from accessing PII and PHI, and PSAS failed
to ensure such measures were followed. The Defendants' negligent
conduct puts the Plaintiff and other current and former patients at
risk. As a result of the Data Breach, the Defendants' current and
former patients have been exposed to a heightened and imminent risk
of fraud and identity theft. They must now and in the future
closely monitor their financial accounts to guard against identity
theft, says the complaint.
The Plaintiff is a Data Breach victim and received electronic
notice of the Breach Notice on October 28, 2022.
Somnia is a practice management company for anesthesia providers
and clinics across the country.[BN]
The Plaintiff is represented by:
James J. Bilsborrow, Esq.
WEITZ & LUXENBERG, PC
700 Broadway
New York, NY 10003
Phone: (212) 558-5500
Fax: (212) 344-5461
Email: jbilsborrow@weitzlux.com
- and -
Samuel J. Strauss, Esq.
Raina C. Borrelli, Esq.
TURKE & STRAUSS LLP
613 Williamson St., Suite 201
Madison, WI 53703
Phone: (608) 237-1775
Fax: (608) 509-4423
Email: sam@turkestrauss.com
raina@turkestrauss.com
SOVEREIGN LENDING: Protective Order in DeVivo Suit Granted in Part
------------------------------------------------------------------
In the case, ANDREW DeVIVO, on behalf of himself and all others
similarly situated, Plaintiffs v. SOVEREIGN LENDING GROUP
INCORPORATED, Defendant, Case No. C22-5254RSM (W.D. Wash.), Judge
Ricardo S. Martinez of the U.S. District Court for the Western
District of Washington, Seattle, grants in part the Defendant's
Motion for a Protective Order and to Quash Third Party Subpoenas.
The lawsuit is a putative class action alleging SLG violated the
Telephone Consumer Protection Act ("TCPA") by calling (1) members
of the National Do Not Call Registry without consent; and (2)
individuals that had previously made "do-not-call" requests.
SLG moves to quash subpoenas issued by DeVivo seeking documents
from two non-party Better Business Bureau ("BBB") locations, "BBB
Great West + Pacific" in Tacoma, Washington, and "Better Business
Bureau Serving the Pacific Southwest" in Newport Beach, California.
Both subpoenas seek "all documents related to complaints regarding
Sovereign Lending Group, Incorporated," from Jan. 1, 2018, to the
present.
In the alternative, SLG moves to limit responses to the Subpoenas
"to complaints involving (1) calls to individuals who claimed they
were on the National Do Not Call Registry and were called without
consent; and (2) calls to individuals who claimed they were called
after they had made a 'do-not-call' request to SLG." It also moves
to block BBB from providing identifying information for consumers
who submitted complaints.
SLG does not claim any privilege or protectable interest in the
subpoenaed material and that it has no standing to quash the
subpoenas under Rule 45. It argues that BBB complaints are publicly
available and that subpoenas are unnecessary. The Plaintiff
concedes he is essentially seeking the contact information for
complainants, which is not public information.
SLG speculates, without evidence, that the BBB offices would be
burdened by these subpoenas. To be clear, neither BBB location has
filed anything with the Court. SLG also argues that the Plaintiff
is on a fishing expedition for a replacement named Plaintiff to
represent the class. These arguments are not persuasive, Judge
Martinez finds. He says the issue of the viability of this named
Plaintiff's claims is not properly before the Court.
Judge Martinez also finds that the Plaintiff's requested
information is relevant and generally proportional to the needs of
the case under the Rule 26(b) standard. However, SLG arguably has
an interest in the production of complaints made to the BBB, and he
agrees that these requests are overly broad. He imposes SLG's
proposed limitation, argued in the alternative. Any BBB complaint
against SLG that includes the words "Do Not Call," "Do Not Call
Registry," or the like would be relevant, and Judge Martinez trusts
the Plaintiff to properly word the subpoenas to capture only such
complaints. He say requesting records that contain a limited number
of specific search terms will reduce the burden on the two BBB
offices.
SLG's request to prevent the Plaintiff from obtaining contact
information is meritless. The Plaintiff has presented at least some
basis for obtaining the information other than identifying new or
replacement class members: to substantiate class allegations, and
to discover whether the putative class suffered the same alleged
injury in order to establish commonality and typicality. Judge
Martinez holds that courts routinely allow the collection of this
kind of information in putative class actions.
Accordingly, having reviewed the relevant briefing and the
remainder of the record, Judge Martinez grants in part the
Defendants' Motion for Protective Order as stated. He directs the
Plaintiffs to immediately send revised subpoenas to the two BBB
locations consistent with the above. Neither party is entitled to
costs given the split nature of the Court's ruling. The parties are
directed to attempt to resolve any issues related to these
subpoenas in good faith and consistent with the Order prior to
seeking further assistance from the Court.
A full-text copy of the Court's Dec. 9, 2022 Order is available at
https://tinyurl.com/mr2234pz from Leagle.com.
SPIRIT AIRLINES: Curd Sues Over Wiretapping of Communications
-------------------------------------------------------------
Frances Curd, individually and on behalf of all others similarly
situated v. SPIRIT AIRLINES, INC., Case No. 1:22-cv-03174-GLR (D.
Md., Dec. 8, 2022), is brought against the Defendant for
wiretapping the electronic communications of visitors to its
website, www.spirit.com in violation of the Maryland Wiretapping
and Electronic Surveillance Act, and constitutes an invasion of the
privacy rights of website visitors.
The Defendant procures third-party vendors, such as FullStory, to
embed snippets of JavaScript computer code ("Session Replay Code")
on the Defendant's website, which then deploys on each website
visitor's internet browser for the purpose of intercepting and
recording the website visitor's electronic communications with the
Defendant's website, including their mouse movements, clicks,
keystrokes (such as text being entered into an information field or
text box), URLs of web pages visited, and/or other electronic
communications in real-time ("Website Communications"). These
third-party vendors (collectively, "Session Replay Providers")
create and deploy the Session Replay Code at the Defendant's
request.
After intercepting and capturing the Website Communications, the
Defendant and the Session Replay Providers use those Website
Communications to recreate website visitors' entire visit to
www.spirit.com. The Session Replay Providers create a video replay
of the user's behavior on the website and provide it to the
Defendant for analysis. The Defendant's procurement of the Session
Replay Providers to secretly deploy the Session Replay Code results
in the electronic equivalent of "looking over the shoulder" of each
visitor to the Defendant's website for the entire duration of their
website interaction.
The Plaintiff brings this action individually and on behalf of a
class of all Maryland citizens whose Website Communications were
intercepted through the Defendant's procurement and use of Session
Replay Code embedded on the webpages of www.spirit.com and seeks
all civil remedies provided under the causes of action, including
but not limited to compensatory, statutory, and/or punitive
damages, and attorneys' fees and costs, says the complaint.
The Plaintiff has visited www.spirit.com on her computer while in
Maryland.
Spirit is an airline serving more than ninety destinations across
the country, including Baltimore/Washington International Thurgood
Marshall Airport (BWI).[BN]
The Plaintiff is represented by:
James J. Pizzirusso, Esq.
HAUSFELD LLP
888 16th Street N.W., Suite 300
Washington, D.C. 20006
Phone: 202.540.7200
Email: jpizzirusso@hausfeld.com
- and -
Steven M. Nathan, Esq.
HAUSFELD LLP
33 Whitehall Street
Fourteenth Floor
New York, NY 10004
Phone: 646.357.1100
Email: snathan@hausfeld.com
- and -
Katrina Carroll, Esq.
LYNCH CARPENTER, LLP
111 W. Washington St., Suite 1240
Chicago IL 60602
Phone: 312.750.1265
Email: katrina@lcllp.com
- and -
Jonathan M. Jagher, Esq.
FREED KANNER LONDON & MILLEN LLC
923 Fayette Street
Conshohocken, PA 19428
Phone: 610.234.6486
Email: jjagher@fklmlaw.com
STANDARD FIRE: Harrington Suit Removed to D. Massachusetts
----------------------------------------------------------
The case styled as Mary Harrington, on behalf of herself and all
others similarly situated v. The Standard Fire Insurance Company
d/b/a Travelers of Massachusetts, Case No. ESX-L-006509-22 was
removed to the U.S. District Court for the District of
Massachusetts on Dec. 12, 2022.
The District Court Clerk assigned Case No. 1:22-cv-12095-ADB to the
proceeding.
The nature of suit is stated as Insurance for Insurance Contract.
The Standard Fire Insurance Company doing business as Travelers of
Massachusetts -- https://www.travelers.com/ -- offers Massachusetts
car insurance information and coverage limits.[BN]
The Plaintiff appears pro se.
The Defendant is represented by:
Kevin P. Daly, Esq.
Wystan M. Ackerman, Esq.
ROBINSON & COLE LLP
280 Trumbull Street
Hartford, CT 06103
Phone: (860) 275-8200
Email: kdaly@rc.com
wackerman@rc.com
STATE BAGS: Fagnani Files ADA Suit in S.D. New York
---------------------------------------------------
A class action lawsuit has been filed against State Bags, LLC. The
case is styled as Mykayla Fagnani, on behalf of herself and all
other persons similarly situated v. State Bags, LLC, Case No.
1:22-cv-10492 (S.D.N.Y., Dec. 12, 2022).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
STATE -- https://statebags.com/ -- designs fashionable bags for
work, travel, gym, & play.[BN]
The Plaintiff is represented by:
Michael A. LaBollita, Esq.
GOTTLIEB & ASSOCIATES
150 E. 18 St., Suite PHR
New York, NY 10003
Phone: (212) 228-9795
Email: michael@gottlieb.legal
STIIZY LLC: Sued for Allegedly Overstating Cannabis THC Content
---------------------------------------------------------------
Holly Barker, writing for Bloomberg Law, reports that Stiizy LLC
and Ironworks Collective Inc. have been hit with a proposed class
action alleging they overcharged millions of California consumers
by grossly overstating the THC content of "Stiizy" brand cannabis
products.
THC, or tetrahydrocannabinol, is the psychoactive ingredient in
cannabis that gets people high, and products with a higher THC
content fetch a much higher price than low-THC products, according
to the lawsuit.
"Like other consumer products, cannabis must be truthfully and
accurately labeled," plaintiff Shanti Gallard says.
According to Gallard, independent laboratory testing of Stiizy
products revealed that the THC content was overstated by as much as
33%. [GN]
STITCHER MEDIA: Luis Files ADA Suit in S.D. New York
----------------------------------------------------
A class action lawsuit has been filed against Stitcher Media LLC.
The case is styled as Kevin Yan Luis, individually and on behalf of
all others similarly situated v. Stitcher Media LLC, Case No.
1:22-cv-10498 (S.D.N.Y., Dec. 12, 2022).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Stitcher -- https://www.stitcher.com/ -- is a media company that
specializes in the creation, distribution, and monetization of
podcasts.[BN]
The Plaintiff is represented by:
Noor Abou-Saab, I, Esq.
LAW OFFICE OF NOOR A. SAAB
380 North Broadway, Suite 300
Jericho, NY 11753
Phone: (718) 740-5060
Email: noorasaablaw@gmail.com
STOCKX INC: Court Grants Bid to Compel Arbitration in Valiente Suit
-------------------------------------------------------------------
In the case, HERIBERTO VALIENTE, Plaintiff v. STOCKX, INC.,
Defendant, Case No. 22-cv-22432-BLOOM/Otazo-Reyes (S.D. Fla.),
Judge Beth Bloom of the U.S. District Court for the Southern
District of Florida grants StockX's Motion to Compel Individual
Arbitration and Dismiss Litigation.
The Plaintiff initiated the class action against the Defendant on
Aug. 2, 2022, by filing his Complaint. He alleges the Defendant:
(1) violated Florida's Deceptive and Unfair Trade Practices Act
("FDUTPA"); (2) violated State Consumer Fraud Acts; (3) breached an
express warranty, an implied warranty of merchantability/fitness
for a particular purpose, and Magnuson Moss Warranty Act; (4) made
negligent misrepresentations; (5) committed fraud; and (6) was
unjustly enriched.
In the instant Motion, the Defendant requests that the Court
compels the parties to arbitration and dismiss the case. It argues
that the Plaintiff agreed to the StockX Terms of Service when he
created a Stock X account, which includes an arbitration provision
directing the parties to resolve any and all disputes exclusively
through arbitration. It further contends that the Plaintiff
acknowledged his agreement to the Terms each time he logged into
his account.
The Plaintiff responds that (1) Florida law must be applied; (2)
the Arbitration Provision is not valid because the agreement
constituted an improper browsewrap agreement which did not put him
on notice of the Terms; (3) unconscionability bars compelling
arbitration; and (4) the issue of arbitrability should be decided
by the Court.
Initially, Judge Bloom finds that the Terms provide that "except to
the extent inconsistent with the Federal Arbitration Act ("FAA") or
preempted by federal law, the laws of the State of Michigan,
without regard to principles of conflict of laws will govern these
Terms and any claim or dispute that has arisen or may arise between
you and StockX." Because there is a threshold issue of whether the
Plaintiff assented to the Terms, which includes the choice of law
clause therein, Florida's law of contract formation applies to
first determine the existence of a contract.
According to the Plaintiff there was no agreement to arbitrate and,
although the Defendant contends the Terms were presented as a
clickwrap agreement, he contends the agreement is more properly
considered a browsewrap agreement.
Judge Bloom agrees with the Defendant that the website, depicted in
relevant part below, required the Plaintiff to click a box
acknowledging that he read the terms and conditions prior to
creating his account, constituting a clickwrap agreement. She finds
that there was a valid and enforceable clickwrap agreement
containing the Terms and Arbitration Provision. Judge Bloom need
not address the Plaintiff's argument that the subsequent times he
logged in he did not assent to the browsewrap agreement contained
on the login page because she has already determined that the
Plaintiff agreed to be bound by the terms at the time he created
his StockX account.
The Plaintiff then argues that unconscionability bars compelling
arbitration because the Arbitration Provision was procedurally and
substantively unconscionable.
Judge Bloom holds that the Plaintiff fails to demonstrate that the
Arbitration Provision was procedurally unconscionable because it
presented a take-it-or-leave-it dilemma. She also determines that
the Arbitration Provision was not minimized or hidden so as to make
it procedurally unconscionable. Because the Plaintiff has not met
his burden of demonstrating procedural unconscionability a
requisite for finding unconscionability under Florida law, Judge
Bloom declines to address the Plaintiff's argument that the
Arbitration Provision is substantively unconscionable.
The Defendant argues that the Plaintiff agreed to delegate gateway
issues of arbitrability to the arbitrator. The Plaintiff contends
that the Court must retain jurisdiction to decide arbitrability
because the validity of the Arbitration Provision is in dispute.
Judge Bloom states that the question of arbitrability is expressly
delegated to the arbitrator and she declines to retain jurisdiction
to determine the question of arbitrability.
As a final matter, the Defendant requests that the Court dismisses
the case as all claims are subject to arbitration. The Plaintiff
does not address the Defendant's request for dismissal in his
Response. Because the Plaintiff's claims are subject to
arbitration, Judge Bloom finds that dismissal of the action is
appropriate.
Accordingly, the Defendant's Motion is granted. The parties will
proceed to arbitration pursuant to the Arbitration Provision. Judge
Bloom dismisses the Plaintiff's claims against the Defendant
without prejudice. The Clerk of Court will close the case. To the
extent not otherwise disposed of, any scheduled hearings are
cancelled, all pending motions are denied as moot, and all
deadlines are terminated.
A full-text copy of the Court's Dec. 9, 2022 Order is available at
https://tinyurl.com/mppshrn5 from Leagle.com.
SUKUT CONSTRUCTION: Remand of Rodriguez Suit to State Court Denied
------------------------------------------------------------------
In the case, JIMMY RODRIGUEZ, individually and on behalf of all
others similarly situated, Plaintiff v. SUKUT CONSTRUCTION, INC.
d/b/a Sukut, a JV, a California corporation; DRAGADOS USA INC
d/b/a/Dragados, a Delaware corporation; FLATIRON CONSTRUCTION
CORPORATION d/b/a/Flatiron, a Delaware Construction Corporation and
Does 1-50 inclusive, Defendants, Case No. 1:22-cv-01181-CDB (E.D.
Cal.), Magistrate Judge Christopher D. Baker of the U.S. District
Court for the Eastern District of California denies the Plaintiffs'
Motion to Remand.
The lawsuit is a labor and employment action in which Rodriguez
alleges that his former employers -- the three named Defendant
construction/contracting companies -- failed to remit to him
numerous types of compensation and other benefits that he was
entitled to receive during the approximate two-year period he
worked for the Defendants (between May 2019 and June 2021).
Specifically, he alleges that the Defendants failed to: (1) pay
overtime wages; (2) provide meal periods; (3) authorize and permit
rest periods; (4) pay all wages owed timely upon the Plaintiff's
separation from employment; (5) provide accurate itemized wage
statements; (6) pay reporting time pay; (7) indemnify necessary
business expenses; and (8) accurately record and pay sick leave.
The Plaintiff also alleges Defendants committed unfair business
practices.
On June 27, 2022, the Plaintiff filed a class action complaint on
behalf of himself and all others similarly situated against
Defendants in the Superior Court of California, in Kern County on
June 27, 2022. In the complaint, he seeks to recover, among other
things, unpaid wages, liquidated damages, premium pay, statutory
penalties, restitution, attorneys' fees, interest, and costs.
On Sept. 16, 2022, Defendant Flatiron timely filed a Notice of
Removal. In the Notice, it asserted that removal from state court
was appropriate on two separate and independent grounds. First,
that this Court has jurisdiction pursuant to the Class Action
Fairness Act ("CAFA"). 28 U.S.C. Sections 1332(d)(3), 1441, and
1446. Second, that there is federal question jurisdiction under
Section 301 of the Labor Management Relations Act of 1947 ("LMRA").
29 U.S.C. Section 152(2), 28 U.S.C. Sections 1331, 1441, and 1446.
Attached to Flatiron's Notice of Removal is a "Declaration of Shawn
Golden" which contains a copy of the Plaintiffs' Collective
Bargaining Agreement (CBA).
In his motion, the Plaintiff argues that the Defendants "improperly
and erroneously" removed the action and that remand to state court
is required. First, as to CAFA-conferred jurisdiction under 28
U.S.C. Section 1332(d)(2), he argues that the Defendants fail to
satisfy the $5 million dollar amount in controversy threshold. He
complains that the calculations set forth in the Defendants' Notice
of Removal are speculative, conclusory, and not sufficiently
supported with evidence such that the Defendants fail to carry
their burden of proving amount in controversy by a preponderance of
evidence. Second, as to federal question jurisdiction under 28
U.S.C. Section 1331, he argues that the Defendants are incorrect in
asserting that his claims are preempted by the LMRA.
The Defendants' opposition maintains that removal is appropriate
under both CAFA and federal question jurisdiction. In support of
satisfying the amount in controversy threshold, they proffer the
declaration of Christine Denio, a Payroll and Accounts Payable
Shared Services Director for Flatiron. Ms. Denio attests to having
reviewed the Defendant's business information and records relevant
to the time associated with the Plaintiff's claims. Based on Ms.
Denio's calculations, the Defendants conclude that the damages and
other relief the Plaintiff seeks exceeds $5 million dollars. They
also argue that the Court maintains original jurisdiction of the
action because the Plaintiff's principal claims are preempted under
Section 301 of the LMRA and any remaining non-preempted claims are
derivative of the preempted claims (and, thus, properly removed).
Based only on amounts in controversy relating to allegedly withheld
rest breaks and meal periods, along with waiting time and wage
statements penalties, Judge Baker holds that a preponderance of the
evidence demonstrates the Plaintiff's complaint conservatively puts
far more than $5 million dollars at issue. As such, he declines to
address other amounts that potentially could increase the amount in
controversy (i.e., attorney's fees).
Next, Judge Barker states that Cal. Labor Code Section 514's
exemption clause provides that Sections 510 and 511 do not apply to
an employee covered by a valid collective bargaining agreement if
the agreement expressly provides for the wages, hours of work, and
working conditions of the employees, and if the agreement provides
premium wage rates for all overtime hours worked and a regular
hourly rate of pay for those employees of not less than 30 percent
more than the state minimum wage.
So, if the CBA at issue meets the requirements set forth in Section
514, then the Plaintiff's overtime compensation claim is preempted
by Section 301 of the LMRA as it exists "solely as a result of the
CBA." Judge Baker agrees with the Defendants that the CBA provides
for wages, hours of work, working conditions, as well as premium
wages to be paid, and an hourly rate above the statutory threshold.
Accordingly, the Plaintiff's overtime claim is preempted, and the
Court has federal question jurisdiction over this cause of action.
In addition, if the CBA at issue meets the requirements set forth
in Section 514, then the Plaintiff's overtime compensation claim is
preempted by Section 301 of the LMRA as it exists "solely as a
result of the CBA." Accordingly, the Plaintiff's meal break claim
is preempted, and the Court has federal question jurisdiction over
this cause of action.
Finally, because the Plaintiff's remaining claims largely are
derivate from the preempted overtime and meal break claims, Judge
Baker will exercise supplemental jurisdiction over the claims
pursuant to 28 U.S.C. Section 1367(a) to avoid needless expense of
judicial resources and the potential for inconsistent judgments due
to parallel proceedings.
For these reasons, Judge Baker denies the Plaintiffs' motion for
remand.
A full-text copy of the Court's Dec. 9, 2022 Order is available at
https://tinyurl.com/34r3szrd from Leagle.com.
SYNGENTA CROP: Slovak Files Suit in M.D. North Carolina
-------------------------------------------------------
A class action lawsuit has been filed against Syngenta Crop
Protection AG, et al. The case is styled as Richard J. Slovak, on
behalf of himself and all other similarly situated persons and
entities v. Syngenta Crop Protection AG, Syngenta Crop Protection,
LLC, Syngenta Corporation, Corteva, Inc., Case No. 1:22-cv-01059
(M.D.N.C., Dec. 8, 2022).
The nature of suit is stated as Anti-Trust for the Sherman-Clayton
Act.
Syngenta Crop Protection -- https://www.syngenta.com/en -- is a
world leader in protecting crops, with a complete range of
high-quality, sustainable solutions.[BN]
The Plaintiff is represented by:
Kevin Guy Williams, Esq.
BELL DAVIS & PITT, P.A.
POB 21029
Winston-Salem, NC 27120-1029
Phone: (336) 714-4150
Fax: (336) 722-8153
Email: kwilliams@belldavispitt.com
SYSCO SACRAMENTO: Bid to Compel Discovery in Fite Class Suit Denied
-------------------------------------------------------------------
In the case, GLENN FITE, Plaintiff v. SYSCO SACRAMENTO, INC.,
Defendant, Case No. 2:21-cv-01633 DAD AC (E.D. Cal.), Magistrate
Judge Allison Claire of the U.S. District Court for the Eastern
District of California denies the Plaintiff's motion to compel
discovery.
The discovery dispute was referred to Judge Claire pursuant to E.D.
Cal. R. 302(c)(1). The motion was initially set for hearing on the
papers on Oct. 19, 2022. On Oct. 19, 2022, the Court vacated the
hearing and ordered the parties to engage in additional meet and
confer efforts, as it was clear from the joint statement that the
meet and confer process had not been exhausted. The parties filed a
revised joint statement on Nov. 30, 2022. On Dec. 6, 2022, the
Defendant filed a motion for judgment on the pleadings. That motion
is set to be heard before the District Judge on Jan. 17, 2023.
The lawsuit is a putative class action alleging a single claim for
relief: Violation of Unfair Competition Law, California Business &
Professions Code Sections 17200, et seq. The discovery cutoff is
currently set for June 15, 2023. At issue in the pending motion for
judgment on the pleadings are several matters that directly impact
the scope of discovery, including the Plaintiff's standing and the
scope of the putative class.
In light of the procedural posture of the case, Judge Claire has
determined that it would be premature to rule on the pending
discovery motion at this time. In the interest of judicial economy,
she denies the motion to compel without prejudice to re-filing
after a ruling has been issued on the pending motion for judgment
on the pleadings. She orders the parties to meet and confer
following a ruling on the pending motion for judgment on the
pleadings to determine whether a new motion to compel is
necessary.
A full-text copy of the Court's Dec. 9, 2022 Order is available at
https://tinyurl.com/2hnt8zw5 from Leagle.com.
TALIS BIOMEDICAL: Securities Class Suit Tossed With Leave to Amend
------------------------------------------------------------------
In the case, IN RE: TALIS BIOMEDICAL CORPORATION SECURITIES
LITIGATION, Case No. 22-cv-00105-SI (N.D. Cal.), Judge Susan
Illston of the U.S. District Court for the Northern District of
California grants the Defendants' motion to dismiss the
consolidated complaint with leave to amend.
Co-Lead Plaintiffs Martin Dugan, Leon Yu, and Max Wisdom Technology
Ltd., on behalf of a putative class of shareholders, allege that
Talis and various current and former Talis officers and board
members misled the investing public about Talis' ability to bring
its first product -- a molecular diagnostic platform for COVID-19
tests called the "Talis One" -- to market. The Plaintiffs allege
that the Defendants misled investors about Talis' initial
application for an Emergency Use Authorization ("EUA") from the
Food and Drug Administration ("FDA"); the accuracy and
functionality of the Talis One; and about Talis' ability to
manufacture the Talis One on a commercial scale on projected
timelines. They allege that the Defendants made numerous false and
misleading statements and omissions in connection with Talis'
February 2021 initial public offering ("IPO") and in post-IPO
filings with the Securities and Exchange Commission ("SEC") and
during quarterly investor calls from March 2021 until March 2022.
Talis is a biotechnology company that was founded in 2010 to
develop point-of-care ("POC") diagnostic tests for infectious
diseases. It developed the Talis One System, a diagnostic platform
comprised of (1) single-use test cartridges that prepare and store
patient samples, (2) a box-shaped instrument that analyzes the
samples, and (3) software.
In 2018, Talis was developing rapid POC diagnostic tests for
sexually transmitted infection such as chlamydia and gonorrhea.
After the onset of the COVID-19 pandemic in early 2020, Talis
abandoned its original focus on STI testing, and by summer 2020
started to develop a molecular test for COVID-19. Talis' COVID-19
test was slated to be the source of substantially all of its
initial revenue.
In January and February of 2022, two putative class actions were
filed against Talis and the Individual Defendants. In June 2022,
those cases were consolidated into the present action, and on July
1, 2022, the Plaintiffs filed the consolidated complaint ("CC").
They bring claims under: (1) the Securities Act of 1933, 15 U.S.C.
Section 77 et seq, on behalf of all persons and entities that
purchased or otherwise acquired common stock issued by Talis
pursuant and/or traceable to the Registration Statement issued in
connection with the Company's February 2021 initial public
offering; and (2) the Securities Exchange Act of 1934, 15 U.S.C.
Section 78 et seq., on behalf of all persons and entities who
purchased or otherwise acquired Talis common stock between March
30, 2021 and March 15, 2022, both inclusive.
The Plaintiffs allege violations of Sections 11 and 15 of the
Securities Act, 15 U.S.C. Section 77k, against Talis and nine
individuals who signed the Registration Statement: Brian Coe
(co-founder, former CEO, President and member of the Board); CFO
Roger Moody; and current and former members of the Board of
Directors (Rustem Ismagliov, Felix Baker, Raymond Cheong, Melissa
Gilliam, Kimberly Popovits, Matthew Posard, Randal Scott)
("Securities Act Defendants"). They allege that Talis, as the
issuer, is strictly liable under the Securities Act, and that the
Individual Defendants — who are experienced medical diagnostics
investors, executives, and scientists -- are liable because they
acted negligently and failed to perform any reasonable
investigation before the offering.
The Plaintiffs allege that the Securities Act Defendants are liable
for issuing materially false or misleading statements and/or
failing to disclose material facts concerning the testing performed
on the Talis One and the data submitted to the FDA; Talis' ability
to manufacture the Talis One at commercial scale, including a false
claim that Talis had ordered 5,000 instruments before the IPO; and
the performance, reliability, safety, and convenience of the Talis
One.
In addition, they allege that the Registration Statement omitted
material information about known uncertainties and specific risks
in violation of Items 105 and 303 of SEC Regulation S-K. They
further allege violations of Section 15 of the Securities Act, 15
U.S.C. Section 77o, against the Individual Securities Act
Defendants in their roles as control persons of Talis.
The Plaintiffs allege violations of Section 10(b) of the Exchange
Act, 15 U.S.C. Section 78j(b), against Talis, Coe, Moody and
current CEO Rob Kelley. They allege that these Defendants acted
knowingly or were deliberately reckless in making false and
misleading statements regarding the progress, production levels,
and validation of the Talis One cartridge manufacturing lines;
Talis' ability to ship the Talis One promptly following FDA
approval; the quality of results; the reasons for Talis adopting a
"phased approach" to launching the Talis One; and Talis' purported
order of 5,000 Talis One "instruments." They also allege violations
of Section 20(a) of the Exchange Act, 15 U.S.C. Section 78t(a),
against Defendants Coe, Moody and Kelley by virtue of their role as
control persons of Talis.
The Defendants move to dismiss the CC, asserting that Talis
consistently disclosed to investors that it faced extraordinary
circumstances bringing its first product to market, including
supply-chain and other manufacturing challenges arising from the
COVID-19 pandemic; uncertainty about receiving approval for an EUA
from the FDA; challenges related to launching a new instrument
system and COVID-19 test at the same time; and building and scaling
complex manufacturing processes operated by third party
contractors. They contend, inter alia, that none of the statements
challenged by the Plaintiffs were false or misleading when made,
that they have not pled fraud with particularity, and that many of
the challenged statements are inactionable corporate optimism,
forward-looking, or opinions.
First, the Defendants request consideration of 20 documents
consisting of SEC filings, earnings call transcripts, analyst
reports, and press releases. Judge Illston finds it is appropriate
to consider the SEC filings and the earnings call transcripts, as
the CC quotes extensively from all of these materials and because
the Plaintiffs challenge various statements within these documents
as false or misleading, but the CC often does not contain the
surrounding context of the statements at issue and/or omits
cautionary language contained in those materials. Accordingly, she
grants the Defendants' request for consideration of Exhibits B, C,
D, E, F, G, H, I, J, L, M, O, P, and Q on the ground that those
documents have been incorporated by reference in the CC.
Judge Illston denies the requests for consideration of the balance
of the Defendants' exhibits. These documents are only briefly
referenced in the CC, consideration of the documents would not add
anything to the Court's review of the present motion, and/or the
Court cannot consider the documents for the reasons sought by the
Defendants. To the extent the Defendants wish to make the point
that the press release stated that Coe "stepped down" and not
"terminated," that language is quoted in Paragraph 101.
Judge Illston also denies the Plaintiffs' request for judicial
notice. She says the asserted relevancy of some of the documents
has been mooted by the Court's denial of the Defendants' request
for judicial notice of certain documents. She adds it is difficult
to understand how documents not referenced in a complaint and on
which the allegations of the complaint do not necessarily rely can
be relevant to the Court's determination."
Next the parties disagree on whether the Plaintiffs' Section 11
claims sound in fraud, and thus whether a heightened pleading
standard applies. Although section 11 does not contain an element
of fraud, a plaintiff may nonetheless be subject to Rule 9(b)'s
particularity mandate if his complaint sounds in fraud. The
Defendants argue that the Section 11 claim sounds in fraud because
the Section 11 and Section 10(b) claims rely on the same factual
allegations and the Plaintiffs describe the entire course of
conduct in fraudulent terms, such as "adverse facts were concealed
in the Registration Statement." The Plaintiffs counter that Section
11 imposes liability for material omissions and "misleading"
statements, and they argue that the Section 11 claims are based on
different statements made at different times than the Section 10(b)
claims.
Judge Illston finds it unnecessary to resolve this issue at this
time because she agrees with the Defendants that the Plaintiffs'
Section 11 allegations do not meet Rule 8 as explicated in Ashcroft
v. Iqbal, 556 U.S. 662, 678 (2009) and Bell Atl. Corp. v. Twombly,
550 U.S. 544, 570 (2007). For the most part, she finds that the
allegations in support of falsity are based on FE allegations that
are conclusory, state opinions without factual support, sometimes
based on vague hearsay and rumors, and are often vague or silent as
to time period, and thus plaintiffs have not alleged facts showing
that the challenged statements were false or misleading at the time
of the IPO.
In addition, Judge Illston holds that many of the challenged
statements appear to be protected by the bespeaks caution doctrine,
as the Registration Statement contained fulsome risk disclosures.
When amending, she encourages the Plaintiffs to add as much
specificity as possible to cure the defects identified in this
order and to show that the challenged statements were false or
misleading when made (particularly since plaintiffs rely on the
same FE allegations for both the Section 11 and 10(b) claims).
For the reasons she set forth, Judge Illston concludes that the
Plaintiffs have not alleged facts showing that Talis "knew" or had
reason to believe that its EUA submission was deficient and that
the FDA would likely not approve it, or that there were high
invalid rates at the time of the IPO. Accordingly, she grants the
Defendants' motion to dismiss the Section 11 claims with leave to
amend. Because she has found that the Plaintiffs have not
adequately alleged a Section 11 claim, she says the Plaintiffs have
also failed to state any claims under Section 15.
Finally, Defendants Talis, Coe, Kelley, and Moody move to dismiss
the Plaintiffs' Section 10(b) claim against them on the basis that
the CC fails to adequately allege any actionable misstatements or
omissions and fails to plead scienter. They also argue that a
number of the challenged statements are protected by the "safe
harbor" provision of the PSLRA, are inactionable opinions and/or
corporate optimism. They also move to dismiss the Plaintiffs'
Section 20(a) claim on the grounds that the complaint fails to
adequately allege a primary violation under Section 10(b).
Judge Illston finds that the Plaintiffs have failed to allege with
particularity why the August 2021 statement about being in the
"final stages of validation for the first set of automated
production lines" was false or misleading. Because she concludes
that the Plaintiffs have failed to allege with particularity that
any of the challenged statements were false or misleading when
made, Judge Illston finds it unnecessary to reach the parties'
additional arguments about scienter. In addition, because the
Plaintiffs have failed to state a claim under Section 10(b), they
have failed to state a claim under Section 20.
In light of the foregoing, Judge Illston concludes that Plaintiffs
have failed to state a claim under Sections 11 or 10(b). Further,
as the Plaintiffs have failed to allege primary liability, they
have failed to state a claim under Sections 15 or 20. She grants
the Defendants' motion to dismiss. The Plaintiffs are granted leave
to amend, and may file the amended complaint by Jan. 13, 2023.
A full-text copy of the Court's Dec. 9, 2022 Order is available at
https://tinyurl.com/3uxzer78 from Leagle.com.
TGI FRIDAY'S: Must Face Class Action Over Mozzarella Snack Sticks
-----------------------------------------------------------------
Zachary Rogers, writing for NBC Montana, reports that a federal
judge in Chicago has ruled that a potential nationwide class action
lawsuit can proceed against the makers of "TGI Friday's Mozzarella
Snack Sticks," but not against the restaurant chain that shares the
same name.
The lawsuit claims that TGI Friday's packaged cheese snacks found
in grocery store frozen food sections are labeled "mozzarella
sticks," but they actually only contain cheddar cheese. Only fine
print on the back of the product package reportedly reveals the
truth about the cheese.
Plaintiff Amy Joseph accused both TGI Friday's Inc. and the makers
of the cheese sticks, Inventure Foods Inc., of misleading customers
with the packaging label. Customers would not pay as much or buy as
much of the product if it was accurately labeled, Joseph said in
her lawsuit.
This Monday, U.S. District Judge Robert M. Dow Jr. denied a motion
from Inventure Foods to dismiss the lawsuit, according to Reuters.
Judge Dow Jr. did, however, reportedly grant TGI Friday's request
to be removed as a defendant in the case, as he found the chain
restaurant's only involvement in the "mozzarella sticks" product to
be as a licensor.
While Plaintiff makes wide-ranging allegations in her complaint
about TGIF's role in the creation of the Product, the Product's
packaging - and the complaint - show that TGI Fridays is only the
licensor of the mark," Judge Dow Jr. wrote in a memorandum on
Monday, according to USA Today.
Simply having a company's label on a product does not make it
liable for misleading or false advertisement, the judge reportedly
ruled.
Inventure reportedly argued that it never really said the product
contained mozzarella cheese, adding that no "reasonable" customer
would think a "shelf-stable, crunchy snack product" actually
contained mozzarella.
The snack maker also questioned Joseph's "motives for purchasing
the product," Reuters reports, adding that Inventure Foods said
that Joseph has filed multiple consumer class action lawsuits with
at least eight being in the last decade.
Joseph's lead attorney, Thomas Zimmerman Jr. of Zimmerman Law
Offices, celebrated the ruling, telling USA Today that the class
action against Inventure Foods will proceed.
We are pleased with the judge's ruling. The judge agreed with us
that the claims in the lawsuit have merit, the case should not be
dismissed," Zimmerman Jr. reportedly said in a statement. "We
intend to proceed against Inventure Foods on behalf of the
nationwide class of purchasers of TGI Fridays mozzarella sticks."
The official name of the case is "Joseph v. TGI Friday's Inc, U.S.
District Court for the Northern District of Illinois No.
21-cv-1340."
Following Judge Dow Jr.'s ruling, attorneys were instructed to
participate in a "preliminary settlement discussion" on December 5,
according to Reuters. [GN]
TRINKET SHOP: Fagnani Files ADA Suit in S.D. New York
-----------------------------------------------------
A class action lawsuit has been filed against Trinket Shop, LLC.
The case is styled as Mykayla Fagnani, on behalf of herself and all
other persons similarly situated v. Trinket Shop, LLC, Case No.
1:22-cv-10493 (S.D.N.Y., Dec. 12, 2022).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Trinket Shop, LLC is a specialty retailer of premium holiday and
lifestyle products.[BN]
The Plaintiff is represented by:
Michael A. LaBollita, Esq.
GOTTLIEB & ASSOCIATES
150 E. 18 St., Suite PHR
New York, NY 10003
Phone: (212) 228-9795
Email: michael@gottlieb.legal
TSLCJ LLC: Fails to Pay Proper Wages, Viera Suit Alleges
--------------------------------------------------------
JOSE MAGDALENO VIERA; SANTOS MINGLEY MORALES RODRIGUEZ; and BARTOLA
RODRIGUEZ GALO, individually and on behalf of all others similarly
situated, Plaintiffs v. TSLCJ LLC d/b/a JEWEL AUTO SPA; LAURENCE
LYNCH; and STEFAN LYNCH, Defendants, Case No. 2:22-cv-07558
(E.D.N.Y., Dec. 13, 2022) is an action against the Defendant for
failure to pay minimum wages, overtime compensation, and provide
accurate wage statements.
The Plaintiffs were employed by the Defendants as car cleaner.
TSLCJ LLC d/b/a JEWEL AUTO SPA provides auto detailing services.
[BN]
The Plaintiffs are represented by:
Roman Avshalumov, Esq.
Helen F. Dalton & Associates, P.C.
80-02 Kew Gardens Road, Suite 601
Kew Gardens, NY 11415
Telephone: (718) 263-9591
Facsimile: 718) 263-9598
UBER TECHNOLOGIES: Holland & Knight Discusses Settlement Ruling
---------------------------------------------------------------
Ariel Simone Wossene and Travis A. Sabalewski, Esq., of Holland &
Knight LLP, in an article for Lexology, report that the U.S. Court
of Appeals for the Ninth Circuit recently rendered a decision on
whether a class action settlement is a "coupon settlement" and
therefore subject to the restrictions on the award of attorneys'
fees to class counsel imposed by the Class Action Fairness Act
(CAFA). 28 U.S.C. Section 1712.
In rendering its decision in McKnight v. Hinojosa, the Ninth
Circuit affirmed the district court's application of the Online DVD
factors from a 2015 case, in concluding that the class action
settlement (the Settlement) was not a coupon settlement subject to
the restrictions on attorneys' fees awards to class counsel under
CAFA by reasoning that two of the three factors weighed against
determining that the Settlement was a "coupon settlement."
The U.S. Court of Appeals for the Ninth Circuit in McKnight v.
Hinojosa, No. 21-16623, 2022 WL 17333820 (9th Cir. Nov. 30, 2022)
considered whether the proposed class action settlement was a
"coupon settlement" and therefore subject to the restrictions on
the award of attorneys' fees to class counsel imposed by the Class
Action Fairness Act (CAFA). 28 U.S.C. Section 1712. Congress
enacted CAFA in part out of "concern about settlements when class
members receive little or no value, including settlements in which
counsel are awarded large fees, while leaving class members with
coupons or other awards of little or no value." CAFA, Pub. L. No.
109-2, Section 2, 119 Stat. 4 (2005). Section 1712 only applies if
the settlement is a "coupon settlement" and addresses this concern
in two ways. First, under Section 1712(e), courts must apply
"heightened scrutiny" when approving settlement agreements awarding
coupon relief. Id. at 949. Second, courts must apply "a series of
specific rules" to attorneys' fees awards in coupon settlements
under Section 1712(a)–(c). In re HP Inkjet Printer Litig., 716
F.3d 1173, 1178 (9th Cir. 2013).
The Ninth Circuit affirmed the district court's judgment awarding
attorneys' fees by holding that the parties' settlement was not a
coupon settlement and affirmed the district court's application of
the percentage-of-fund method, reducing the requested award of
$8.125 million to $5,689,440, representing 17.5% of the value of
the fund and 2.9 times the lodestar, which represents the value of
the work performed based on the number of hours reasonable spent
and reasonable hourly rates for that work.
Case Background
In McKnight v. Hinojosa, the Ninth Circuit heard the consolidated
appeal of the Plaintiff-Appellees who represented a class that
brought breach of contract and consumer law claims against Uber
Technologies Inc. and Raiser LLC (Uber) alleging the
misrepresentation of "Safe Rides Fees" and the safety measures,
background checks and other efforts taken to provide safety for
customers.
The parties reached an initial settlement in 2016, and the district
court approved a revised settlement in August 2019 (the
Settlement). The district court then approved and certified a
settlement class of approximately 22.4 million members. The class
included anyone who used Uber ridesharing services in the United
States between Jan. 1, 2013, and Jan. 31, 2016, and was charged a
Safe Rides Fee. The Settlement provided both monetary and
injunctive relief, including $32.5 million into a "non-reversionary
settlement fund" with class members receiving $0.25 each for the
first Safe Ride Fee and $0.05 for each subsequent fee, with the
average class member receiving $1.07. Settlement funds were to be
paid in three stages: first, through the submission of a claim form
and payments through cash, PayPal or eCheck; second as credits to
the Uber account; and third, after one year, Uber would make a
one-time attempt to remit any unused credit to the class member's
payment account with Uber. For injunctive relief, the Settlement
prohibited Uber from charging a Safe Rides Fee and limited
representations that Uber can make as to its driver background
check policies and the safety of its services.
The district court approved the settlement and reasoned the CAFA's
attorney fee restrictions applicable to coupon settlements did not
apply. Accordingly, the district court applied the
percentage-of-fund method, granting fees but reducing the award
because the settlement amount fell near the bottom of the "range of
possible approval" and because on a lodestar cross-check, "even the
reduced fee award granted a healthy multiplier of the fees actually
incurred." Three objectors appealed by contending the district
court erred by not applying CAFA's attorney fee provisions and
abused its discretion when calculating the award. The Ninth Circuit
affirmed.
Ninth Circuit's Decision
On appeal, the Ninth Circuit addressed the applicability of CAFA's
coupon provisions to the class action settlement agreement. The
court applied the three factors identified in In re Online
DVD-Rental Antitrust Litig., 779 F.3d 934, 950-951 (9th Cir. 2015)
to determine whether a particular instance of class relief
qualifies as a coupon settlement including: "(1) whether class
members have 'to hand over more of their own money before they can
take advantage of' a credit, (2) whether the credit is valid only
'for select products or services,' and (3) how much flexibility the
credit provides, including whether it expires or is freely
transferrable."
Applying the first of these factors, the court reasoned the class
payouts provided the number of "Safe Rides Fees" incurred by each
class member valued at approximately $1.07. The court reasoned the
first factor weighed against defining the credits as coupons
because class members could claim their reward upfront in cash and
also receive cash if they do not use their credit. The second
Online DVD factor weighed in favor of construing the Settlement as
a coupon settlement because the credit is valid for Uber services.
The court determined the third factor weighed against holding the
Settlement was a coupon settlement because, while the credits were
not transferable and expire after one year, the credits still
become cash without requiring further action and there were no
blackout dates. However, relying on precedent, the court reasoned
no one factor was dispositive.
Ultimately, the Ninth Circuit reasoned that the district court did
not err in concluding that the Settlement was not a coupon
settlement because two of the three Online DVD factors favored
characterizing the Settlement as a non-coupon settlement within the
meaning of the CAFA. The court acknowledged that the amounts to be
distributed were "modest, even minuscule, " but did not find this
dispositive. The Ninth Circuit noted the amount paid in settlement
is properly the subject of a fairness hearing — unless the amount
is disproportionate to the actual value but is still not
determinative of whether the Settlement is a coupon settlement or
not. As such, the Court affirmed the district court's attorneys'
fees award and held that the district court did not err in awarding
fees for hours spent pursuing unsuccessful settlements. Since the
final Settlement only amended the first settlement, the hours spent
in negotiation were not held to be redundant or unnecessary. Thus,
the Court held it was reasonable in comparison with other awards to
reduce the fee award below the 25 percent benchmark because of the
modest degree of success and because awarding the 25 percent
benchmark would have overcompensated class counsel compared to
their lodestar.
Attorneys' Fees and Additional Clarification
CAFA's attorney fee restrictions were reduced from the requested
$8.125 million in fees (25% of the face value of the fund and a
4.14 multiplier on the lodestar of $1,961,905) to $5,689,440, or
15.5% of the face value of the fund and 2.9 times the lodestar.
The Ninth Circuit held that the district court did not abuse its
discretion in calculating the fee award: "While recognizing that
25% of the fund is a 'presumptively reasonable amount,' the
district court reduced the award because the Settlement amount fell
near the bottom of the 'range of possible approval,' and because on
a lodestar cross-check, even the reduced fee award granted a
healthy multiplier on the fees actually incurred."
It is important to analyze class action fee awards for their
reasonableness by reviewing the standards outlined by the Ninth
Circuit's decision. [GN]
UNITED STATES: Cheng Files Suit in S.D. New York
------------------------------------------------
A class action lawsuit has been filed against United States of
America. The case is styled as Sheng-Wen Cheng, individually and on
behalf of a class of all others similarly situated v. United States
of America, Case No. 1:22-cv-10536-UA (S.D.N.Y., Dec. 12, 2022).
The nature of suit is stated as Prisoner Civil Rights.
The U.S. -- https://www.usa.gov/ -- is a country of 50 states
covering a vast swath of North America, with Alaska in the
northwest and Hawaii extending the nation's presence into the
Pacific Ocean.[BN]
The Plaintiff appears pro se.
UNITED STATES: Greene's Bid for Appointment of Counsel Denied
-------------------------------------------------------------
In the case, TONY LAMONTE GREENE, et al., Plaintiffs v. THE UNITED
STATES, Defendant, Case No. 22-1064 (Fed. Cl.), Judge Kathryn C.
Davis of the U.S. Court of Federal Claims denies the Plaintiff's
Motion for Appointment of Counsel and all relief requested therein,
including the Plaintiff's request for class certification.
The Plaintiffs, who are incarcerated at the James Crabtree
Correctional Center in Oklahoma and are proceeding pro se, filed
the Complaint in the case on Aug. 19, 2022. According to the
Complaint, the Plaintiffs claim to be "members/descendants of the
Cherokee Nation and/or those freedmen subject to treaties between
the Cherokee Nation and the United States," and they allege that
their incarceration under Oklahoma state law constitutes unlawful
violations of Cherokee treaty rights. They seek $300,000 plus $100
per day of their detention in compensatory damages and $1,000,000
in punitive damages for their allegedly wrongful incarceration.
They also requested through the Complaint appointment of counsel
and class certification.
On Oct. 25, 2022, the Court granted the requests of Plaintiffs
Greene, Byrd, Jackson, Smallen, Wilson, and Day to proceed in forma
pauperis. On Nov. 23, 2022, Greene filed a Motion for Appointment
of Counsel, which is now before the Court. The Defendant did not
file a response to the Motion by the Dec. 7, 2022, deadline. By his
Motion, the Plaintiff requests both appointment of counsel and
class certification.
First, the Plaintiff requests that the Court appoints counsel
pursuant to 25 U.S.C. Section 175 and Maclin v. Freake, 650 F.2d
885, 886 (7th Cir. 1981), which held that a district court's denial
of an indigent, incarcerated pro se plaintiff's request for
appointment of counsel was an abuse of discretion under 28 U.S.C.
Section 1915.
Judge Davis holds that neither source of law provides a basis for
appointment of counsel in the case. The present case, in which the
Plaintiff seeks monetary damages from the United States for the
actions of officials and individuals in his criminal proceedings,
involves neither the type of extraordinary circumstances nor
extreme hardship warranting the exercise of the Court's power under
Section 1915(e)(1). Because the Plaintiff only seeks monetary
compensation, there is no risk that the outcome of the case will
prolong his incarceration or otherwise further divest him of
personal liberty.
Even if he were to follow the Maclin standard, Judge Davis would
conclude counsel should not be appointed to represent the Plaintiff
in the case. The Court's holding in Maclin rested in significant
part on the fact that the plaintiff faced severe medical
complications that prevented him from prosecuting his case. The
Plaintiff does not allege that he faces the same physical
restraints, and the Plaintiff's concerns regarding fact-finding and
fact witnesses have relatively less pertinence here where
adjudication of the Plaintiff's claims will likely focus more on
legal arguments. Accordingly, while the Plaintiff may have no
professional legal training, that fact alone would not warrant
appointment of counsel even under the balancing test of Maclin.
Because the Plaintiff's suit seeks monetary damages, the outcome of
the case will not prolong the Plaintiff's incarceration and will
not otherwise implicate his personal liberty. The absence of
"extreme circumstances," such as a threat to the Plaintiff's
liberty, belies any call for the Court to appoint counsel in the
case. Accordingly, Judge Davies denies the Plaintiff's request for
appointment of counsel.
In addition to appointment of counsel, the Plaintiff requests
"certification of class status." His proposed class includes
"members and descendants of members of the Cherokee Nation and
those freedmen and their descendants subject to treaties between
the Cherokee Nation and the United States."
Because all the Plaintiffs in the case are proceeding pro se, the
adequacy requirement of RCFC 23 is not met. The Plaintiff is acting
pro se and lacks formal legal training, and thus has not
demonstrated that he can fairly represent the alleged rights of a
class of individuals.
For the foregoing reasons, Judge Davis denies the Plaintiff's
Motion for Appointment of Counsel and all relief requested therein,
including his request for class certification.
A full-text copy of the Court's Dec. 9, 2022 Memorandum & Order is
available at https://tinyurl.com/4y2p3yf3 from Leagle.com.
UNIVERSITY OF ILLINOIS: Bid to Certify Class in Brown Suit Denied
-----------------------------------------------------------------
In the case, DERICK BROWN, ATIBA FLEMONS, & JEFFREY TAYLOR, on
behalf of themselves and others similarly situated, Plaintiffs v.
THE BOARD OF TRUSTEES OF THE UNIVERSITY OF ILLINOIS, Defendant,
Case No. 2:19-cv-02020 (C.D. Ill.), Judge Joe Billy McDade of the
U.S. District Court for the Central District of Illinois, Peoria
Division, denies the Plaintiffs' Motion to Certify Class.
The Plaintiffs are three Black employees who currently work at
Defendant's Urbana-Champaign campus (UIUC). They charge the
Defendant with discrimination against Black employees in violation
of Title VII of the Civil Rights Act of 1964, 42 U.S.C. Section
2000e et seq., and have filed this putative class action lawsuit on
behalf of themselves and their colleagues to seek redress.
According to the Plaintiffs, the University's Nondiscrimination
Policy (NDP) is discriminatory and the University's Office of
Access and Equity (OAE) -- the unit tasked with investigating
alleged violations of the NDP -- has engaged in a pattern and
practice of discrimination by systematically failing to promptly
evaluate and ameliorate NDP complaints arising from alleged
race-based misconduct. Regarding the former claim, the Plaintiffs
allege the NDP creates a more demanding standard of proof than is
appropriate under Title VII in addressing complaints of race-based
misconduct without the protections and benefits afforded to
litigants formally pursuing a Title VII claim in court. And
regarding the latter, they allege the "OAE's standard operating
procedure is to guarantee a finding that a violation of the NDP has
not occurred, thus perpetuating racial hostility."
To maintain this "inexorable zero," the Plaintiffs claim OAE staff
members "refer draft investigatory findings for Legal Review only
where there is a preliminary recommendation that a violation of the
NDP is indicated, ensuring that UIUC's legal department will
override the preliminary determination." They further claim the OAE
maintains a practice of nonenforcement by purposefully disregarding
provisions of the NDP aimed at preventing harassment, and by taking
no measures to mete out discipline, mandate reporting of racial
harassment, or mandate training on the NDP for all employees. To
remedy these claims, the Plaintiffs seek injunctive relief
directing Defendant to overhaul the NDP and its complaint
procedure.
The Plaintiffs now seek certification of a class comprising "all
individuals identifying as Black and/or African American who are
currently employed at UIUC, or who have been employed by UIUC at
any point since Jan. 1, 2014, and who have not held a supervisory
position within System Human Resources, Illinois Human Resources,
campus unit offices for human resources, or the Office of Access
and Equity at any point since Jan. 1, 2014."
Of the Rule 23(a) requirements, the Defendant only challenges
commonality and typicality. Judge McDade accepts the implicit
concession that the Plaintiffs' proposal meets the requirements of
numerosity and fair and adequate representation by the named
parties and finds the Plaintiffs' Memorandum in support of their
Motion for Class Certification demonstrates by a preponderance of
the evidence that these elements are satisfied. The same cannot be
said for the requirements of commonality and typicality.
Judge McDade holds that the Plaintiffs have not demonstrated the
OAE's NDP complaint procedure is the only avenue to avoid the
application of that defense. If, as he suspects, employees can and
do report race-based misconduct directly to University officials or
units other than the OAE, the propriety and efficacy of the NDP and
its complaint procedure do not present issues common to such
individuals. For these reasons, Judge McDade finds that the
Plaintiffs have failed to meet their burden to prove commonality
such that the answers to their putative common questions will
resolve an issue that is central to the validity of each one of the
claims in one stroke.
The Plaintiffs' claims are not typical of the putative class
members' claims as well, Judge McDade opines. He says the named
Plaintiffs and the two class exemplars represent five of the
approximately 60 NDP complaints asserting race-based misconduct
evaluated by the OAE during the class period. As stated, the number
of NDP complaints filed in the relevant time period represents an
infinitesimal fraction of the putative class, meaning the vast
majority of the putative class members were not subject to the same
practice or conduct that comprises the gravamen of the Plaintiffs'
and the class exemplars' claims: the OAE's NDP and complaint
procedure.
As these experiences vary wildly it cannot be said that the
Plaintiffs' experience is typical of the entire class; rather, it
appears the Plaintiffs' and the exemplars' experiences are an
extreme minority. For these reasons and those discussed in the
commonality analysis, the Plaintiffs have failed to adequately
prove typicality.
Because the Plaintiffs have failed to meet their burden to prove
commonality and typicality, Judge McDade does not consider the
parties' arguments relating to Rule 23(b)(2) or (c)(4).
The Plaintiffs' Motion for Class Certification id denied. The
matter is referred to Magistrate Judge Long for a case management
hearing to establish the procedures moving forward.
A full-text copy of the Court's Dec. 9, 2022 Order & Opinion is
available at https://tinyurl.com/5n8er3pm from Leagle.com.
USA WASTE: Arellano Suit Removed to E.D. California
---------------------------------------------------
The case captioned as Lori Arellano, as an individual and on behalf
of all others similarly situated v. USA WASTE OF CALIFORNIA, INC.,
a Delaware corporation; and DOES 1 through 50, inclusive, Case No.
200801 was removed from the Superior Court for the State of
California, in and for the County of Shasta, to the United States
District Court for the Eastern District of California on Dec. 9,
2022, and assigned Case No. 2:22-at-01246.
The Complaint asserts a single cause of action for violation of
California Labor Code for alleged failure to issue accurate wage
statements.[BN]
The Defendants are represented by:
David J. Dow, Esq.
LITTLER MENDELSON, P.C.
501 W. Broadway, Suite 900
San Diego, Ca 92101.3577
Phone: 619.232.0441
Fax: 619.232.4302
Email: ddow@littler.com
VERDECO RECYCLING: Avila Sues Over Unpaid Minimum, Overtime Wages
-----------------------------------------------------------------
Alfonso Avila, on behalf of himself and others similarly situated
v. VERDECO RECYCLING, INC.; and DOES 1 to 100, inclusive, Case No.
22STCV38384 (Cal. Super. Ct., Los Angeles, Cty., Dec. 9, 2022), is
brought seeking unpaid wages and interest thereon for failure to
pay wages for all hours worked at minimum wage; overtime wages for
overtime hours worked; overtime hours at the proper overtime rate
of pay; failure to authorize or permit all legally required and/or
compliant meal periods or pay meal period premium wages; failure to
authorize or permit all legally required and/or compliant rest
periods or pay rest period premium wages; statutory penalties for
failure to timely pay earned wages during employment; statutory
penalties for failure to provide accurate wage statements;
statutory waiting time penalties in the form of continuation wages
for failure to timely pay employees all wages due upon separation
of employment; injunctive relief and other equitable relief;
reasonable attorneys' fees pursuant to the Labor Code.
The Plaintiff and similarly situated hourly non-exempt employees
worked more minutes per shift than Defendants credited them with
having worked. The Defendants failed to pay Plaintiff and similarly
situated employees all wages at the applicable minimum wage for all
hours worked due to Defendants' policies, practices, and/or
procedures including, but not limited to: Requiring Plaintiff and
similarly situated employees to routinely remain on-duty during
off-the-clock meal breaks.
The Defendants failed to pay Plaintiff and similarly situated
employees all wages at the applicable minimum wage for all hours
worked due to Defendants' policies, practices, and/or procedures
including, but not limited to: Requiring Plaintiff and similarly
situated employees to routinely remain on-duty during off-the-clock
meal breaks. The Plaintiff was not paid for this time. To the
extent the employees had already worked 8 hours in the day and on
workweeks they had already worked 40 hours in a workweek, the
employees should have been paid overtime for this unpaid time, says
the complaint.
The Plaintiff was employed by the Defendants as an hourly
non-exempt employee from August 2021 until May 30, 2022.
VERDECO RECYCLING, INC. is authorized to do business within the
State of California.[BN]
The Plaintiff is represented by:
Joseph Lavi, Esq.
Vincent C. Granberry, Esq.
Pooja V. Patel, Esq.
LAVI & EBRAHIMIAN, LLP
8889 W. Olympic Boulevard, Suite 200
Beverly Hills, CA 90211
Phone: (310) 432-0000
Facsimile: (310) 432-0001
Email: jlavi@lelawfirm.com
vgranberry@lelawfirm.com
ppatel@lelawfirm.com
WHT1@lelawfirm.com
VILLAGE CAREGIVING: Butler Sues Over Failure to Pay Overtime Wages
------------------------------------------------------------------
Jennifer Butler, on behalf of herself and others similarly situated
v. VILLAGE CAREGIVING, LLC, Case No. 2:22-cv-04359-ALM-EPD (S.D.
Ohio, Dec. 12, 2022), is brought against the Defendant for its
failure to pay employees overtime wages, seeking all available
relief under the Fair Labor Standards Act of 1938; the Ohio Minimum
Fair Wage Standards Act; and the Ohio Prompt Pay Act.
The Plaintiff regularly worked more than 40 hours in a workweek.
During her employment with the Defendant, the Plaintiff worked as
an HHA and provided companionship services, domestic services, home
care, and other in-home services for the Defendant's
clients/patients. During her employment with the Defendant, the
Plaintiff regularly performed overtime work without compensation.
The Plaintiff cared for multiple patients (i.e., clients)
throughout the day, and, as such, they were required to drive
between patients' homes. However, the Defendant did not pay the
Plaintiff for their travel time between patients' homes. As a
result of the Defendant's failure to compensate the Plaintiff for
their travel time between the Defendant's patients' homes, the
Plaintiff was not paid one-and-one-half times their regular rates
of pay for all hours worked over 40 in a workweek, says the
complaint.
The Plaintiff primarily worked as an hourly, non-exempt employee of
the Defendants.
The Defendant is a provider of in-home healthcare services and is
the largest privately owned home care agency in the United
States.[BN]
The Plaintiff is represented by:
Matthew J.P. Coffman, Esq.
Adam C. Gedling, Esq.
Kelsie N. Hendren, Esq.
Tristan T. Akers, Esq.
COFFMAN LEGAL, LLC
1550 Old Henderson Rd., Suite 126
Columbus, OH 43220
Phone: 614-949-1181
Fax: 614-386-9964
Email: mcoffman@mcoffmanlegal.com
agedling@mcoffmanlegal.com
khendren@mcoffmanlegal.com
takers@mcoffmanlegal.com
VIVERANT PT: Reed Files TCPA Suit in D. Minnesota
-------------------------------------------------
A class action lawsuit has been filed against Viverant PT LLC. The
case is styled as Mitchell Reed, on behalf of himself and all
others similarly situated v. Viverant PT LLC, Case No.
0:22-cv-03043-WMW-JFD (D. Minn., Dec. 8, 2022).
The lawsuit is brought over alleged violation of the Telephone
Consumer Protection Act for Restrictions of Use of Telephone
Equipment.
Viverant -- https://viverant.com/ -- provides physical therapy
services such as general orthopedics, pelvic health, dry cupping
and pilates.[BN]
The Plaintiff is represented by:
Carter B Lyons, Esq.
Thomas J. Lyons, Jr., Esq.
CONSUMER JUSTICE CENTER P.A.
367 Commerce Court
Vadnais Heights, MN 55127
Phone: (612) 770-4221
Fax: (651) 704-0907
Email: carter@consumerjusticecenter.com
tommy@consumerjusticecenter.com
VOLVO CAR USA: Smith Sues Over Wiretapping of Website Visitors
--------------------------------------------------------------
RUSSELL SMITH, individually and on behalf of others similarly
situated, Plaintiff v. VOLVO CAR USA, LLC, Defendant, Case No.
3:22-cv-01965-AJB-AGS (S.D. Cal., Dec. 13, 2022) alleges violation
of the Federal Wiretap Act and the California Invasion of Privacy
Act in relation to the Defendant's unauthorized interception,
collection, recording, and dissemination to the Plaintiff's and
Class Members' communications and data.
The Plaintiff alleges in the complaint that the Defendant made
unauthorized interception and connection to the Plaintiff's and
Class Members' electronic communications through the use of
"session replay" spyware that allowed Defendant to read, learn the
contents of, and make reports on the Plaintiff's and Class Members'
interactions on Defendant's website.
The Defendant utilized "session replay" spyware to intercept the
Plaintiff's and the Class Members' electronic computer-to-computer
data communications, including how the Plaintiff and Class Members
interacted with the website, mouse movements and clicks,
keystrokes, search items, information inputted into the website,
and pages and content viewed while visiting the website. Defendant
intentionally tapped and made unauthorized interceptions and
connections to Plaintiff and Class Members' electronic
communications to read and understand movement on the website. The
Defendant never sought consent and the Plaintiff and Class Members
never provided consent the for Defendant's unauthorized access to
their electronic communications, says the suit.
VOLVO CAR USA, LLC manufactures, markets, and sells automobiles.
The Company offers wholesale distribution of new and used passenger
automobiles, trucks, trailers, and components. [BN]
The Plaintiff is represented by:
Joshua B. Swigart, Esq.
SWIGART LAW GROUP, APC
2221 Camino del Rio S, Ste 308
San Diego, CA 92108
Telephone: (866) 219-3343
Email: Josh@SwigartLawGroup.com
- and -
Daniel G. Shay, Esq.
LAW OFFICE OF DANIEL G. SHAY
2221 Camino del Rio S, Ste 308
San Diego, CA 92108
Telephone: (619) 222-7429
Email: DanielShay@TCPAFDCPA.com
WAKEFERN FOOD: Fails to Pay Proper Wages, Smith Suit Alleges
------------------------------------------------------------
BENJAMIN SMITH, individually and on behalf of all others similarly
situated, Plaintiff v. WAKEFERN FOOD CORP.; ABC CORPS. 1-55; XYZ
COMPANIES 1-55; and JANE & JOHN DOES 1-50, Defendants, Case No.
3:22-cv-07247 (D.N.Y., Dec. 13, 2022) seeks to recover from the
Defendants unpaid wages and overtime compensation, interest,
liquidated damages, attorneys' fees, and costs under the Fair Labor
Standards Act.
Plaintiff Smith was employed by the Defendants as warehouseman.
WAKEFERN FOOD CORP. supplies food and consumer products. The
Company offers grocery, meat, frozen food, and dairy products, as
well as provides private label brand development, advertising
support, and category management services. [BN]
The Plaintiff is represented by:
Ravi Sattiraju, Esq.
SATTIRAJU & THARNEY, LLP
50 Millstone Road
Building 300, Suite 202
East Windsor, NJ 08520
Telephone: (609) 469-2110
Facsiimile: (609) 228-5649
Email: rsattiraju@s-tlawfirm.com
- and -
Harold I. Lichten, Esq.
LICHTEN & LISS-RIORDAN, P.C.
729 Boylston Street, #2000
Boston, MA 02114
Telehone: (617) 994-5800
Facsimile: (617) 994-5801
Email: hlichten@llrlaw.com
WELLS FARGO & COMPANY: Price Files Suit in Cal. Super. Ct.
----------------------------------------------------------
A class action lawsuit has been filed against Wells Fargo &
Company, et al. The case is styled as Janisha Lee Price, Carmen
Zamarippa, and on behalf of all employees similarly situated v.
Gonchez Realty Corp., Case No. 34-2022-00331236-CU-OE-GDS (Cal.
Super. Ct., Sacramento Cty., Dec. 12, 2022).
The case type is stated as "Other Employment - Civil Unlimited."
Wells Fargo & Company -- https://www.wellsfargo.com/ -- is an
American multinational financial services company with corporate
headquarters in San Francisco, California.[BN]
The Plaintiff is represented by:
Christina A. Humphrey, Esq.
CHRISTINA HUMPHREY LAW, P.C.
1117 State St
Santa Barbara, CA 93101
Phone: (805) 618-2924
- and -
Richard E. Quintilone, II, Esq.
QUINTILONE & ASSOCIATES
El Toro Road, Suite 100
Lake Forest, CA 92630
Phone: (949) 458-9675
YAZAM INC: Faces Class Suit Over Ridesharing Service Empower
------------------------------------------------------------
Regan Zambri Long PLLC filed a class action lawsuit on behalf of
consumers who used new ridesharing service Empower, alleging that
the service violates the District of Columbia Consumer Protection
Procedures Act.
The complaint alleges that Empower's business model is designed to
underprice market leaders Uber and Lyft. According to the
complaint, Empower is consciously violating District of Columbia
consumer protection laws requiring that it perform background
checks of its drivers and that it maintain $1 million of liability
insurance to protect passengers, drivers, and other people on the
road in the event of an auto accident.
According to the complaint, the plaintiff, Alicia Woodford,
requested a ride through the Empower app on August 6, 2022. While
driving Ms. Woodford to her destination, the driver collided with a
concrete median, resulting in injuries to Ms. Woodford. It was
later discovered that neither Empower nor the driver had any
insurance to cover her injuries.
The complaint further states: "By, in violation of District of
Columbia law, choosing not to obtain the required insurance
coverage, not to require its Drivers to obtain the required
insurance coverage, not to disclose the insurance requirements on
its website, and to remain willfully blind as to whether or not its
Drivers are in fact carrying any insurance coverage, Defendant
Empower not only fraudulently misleads its passenger-consumers; it
also exposes them, other road users, and even its own drivers to
the risk of financial ruin in the event of a crash."
In addition to failing to provide the required liability insurance,
the complaint also alleges that Empower does not perform background
checks on its drivers. District of Columbia law requires that
rideshare companies retain an accredited third party to conduct a
background check on each driver, which includes a local and
national criminal background check, a full driving record check,
and a national sex offender database background check. However, the
complaint alleges Empower does not perform these checks on its
drivers.
The plaintiff is represented by Regan Zambri Long personal injury
attorneys Patrick Regan, Christopher Regan, and Emily Lagan. For
more information about the complaint, visit reganfirm.com.
About Regan Zambri Long PLLC
Washington, DC personal injury law firm Regan Zambri Long PLLC
strives to provide legal representation of the highest caliber to
our clients. Focusing primarily on personal injury law, we
passionately advocate for those who have been negligently injured.
For more information, visit rhllaw.com.
Contact Information:
Name: Sue Vester
Email: sue@bobdigitalmarketing.com
Job Title: Marketing Representative [GN]
YUGA LABS: Celebrities Among Defendants in Bored Ape NFT Scheme
---------------------------------------------------------------
Shirley Halperin, writing for Variety, reports that a class-action
lawsuit contends that stakeholders in Yuga Labs, the parent company
of NFT series Bored Ape Yacht Club and its affiliated digital
products, engaged in a conspiracy with celebrities to defraud
potential investors.
In the complaint, filed Dec. 8 in federal district court in L.A.,
Yuga partners -- including veteran music manager Guy Oseary -- are
named among the 37 defendants, who include Kevin Hart, Gwyneth
Paltrow, Madonna, Justin Bieber, Serena Williams, Jimmy Fallon,
Paris Hilton, Snoop Dogg, The Weeknd, Post Malone and NBA star
Steph Curry. Also named is Amy Wu, who recently exited troubled
cyptocurrency exchange FTX and served as a consultant and board
member of the ApeDAO.
The lawsuit seeks monetary damages of at least $5 million on behalf
of the plaintiffs and the putative class of "all others similarly
situated."
Reached by Variety, a Yuga Labs spokesperson said, "In our view,
these claims are opportunistic and parasitic. We strongly believe
that they are without merit, and look forward to proving as much."
Plaintiffs Adonis Real and Adam Titcher claim that in promoting or
endorsing the Bored Ape community through social media and other
mediums, these entertainers and athletes caused the value of
non-fungible tokens (NFTs) to balloon to "artificially inflated and
distorted prices" and engaged in misleading promotions that did not
disclose alleged financial compensation. The two also allege that
the "scheme" involved MoonPay, which facilitated transfers of
ownership to the celebrities named, some of whom were backers of
the service. One such investor named is Fallon, whose on-air
name-check of MoonPay as "the PayPal of crypto" on a Nov. 11, 2021,
episode featuring Mike Winkelmann, the digital artist known as
Beeple, is cited, as is a Jan. 24, 2022, appearance on "The Tonight
Show" by Hilton.
Another prominent piece of promotion came by way of an FTX teaser
commercial featuring Steph Curry carving an ice sculpture of a
Bored Ape with the tagline, "When learning about crypto, you'll be
anything but bored."
The complaint states that there exist more than 103,000 unique
account holders of Yuga securities -- which includes the Bored Ape
offshoot Mutant Ape Club; the metaverse "Otherside," which offered
virtual land sales; and the token ApeCoin -- of which Yuga receives
a 2.5% royalty rate "every time one of its NFTs is resold on the
secondary market."
The period specified in the class action is from April 24, 2021, to
present. At its portfolio height in early 2022, Bored Ape NFTs were
fetching in the hundreds of thousands of dollars with what were
deemed rare characteristics. Plaintiff Titcher purchased a Mutant
Ape and an Otherdeed for the Bored Ape metaverse Otherside, and
Real purchased ApeCoin tokens, according to the lawsuit.
Investing in NFTs is not without risk, particularly as the trade of
such assets remains unregulated. Also affecting the market is the
crypto crash which began in early summer and saw another blow in
November with the collapse of FTX. A class-action lawsuit filed
Nov. 15 accused FTX celebrity "brand ambassadors" including Larry
David, Tom Brady, Giselle Bündchen, Shaquille O'Neal and Steph
Curry of deceptively encouraging consumers to invest in the
company.
The lawsuit against Yuga Labs and others was filed in the U.S.
District Court for the Central District of California, Western
Division. The case is docket no. 2:22-CV-08909-FMO-PLA. The
plaintiffs are represented by San Diego firm Scott & Scott, which
went public with its intention to form a class action in July. In
November, the firm also targeted, via a series of "investigation
alerts," Warner Music Group, Live Nation, Beyond Meat and Poshmark,
among others, for breach of fiduciary duties.
A class action lawsuit against Kim Kardashian, Floyd Mayweather and
other celebrity promoters of EthereumMax, was dismissed by a
federal judge. Per a CNBC report, judge Michael Fitzgerald of the
Central District of California noted in his dismissal, "While the
law certainly places limits on those advertisers, it also expects
investors to act reasonably before basing their bets on the
zeitgeist of the moment." [GN]
[*] Four Business Interruption Class Suits Return to Court in 2023
------------------------------------------------------------------
InsuranceNEWS.com.au reports that four business interruption class
actions will return to the Federal Court next year, after a
preliminary hearing was held.
Lawyers for the insureds have been asked to file amended
applications and statements of claims following outcomes from the
Insurance Council of Australia second test case. Insurers maintain
the matters shouldn't proceed as class actions.
Chief Justice James Allsop ordered at a hearing in Sydney that the
proceedings be stood over for a case management hearing before
Justice Michael Lee on a date to be fixed.
Separately, a preliminary Federal Court hearing was also held for a
dispute filed by Shine Lawyers on behalf of Joyo-Kin Pty Ltd, the
operator of Jetts Fitness Ocean Gove, which is contesting a claim
denial by Hollard.
Shine National Practice Leader - Commercial Disputes Bree Smith
says the number of policies that may respond has narrowed
significantly since the ICA test case decisions, but the firm
believes the gym's policy is one of those that's valid.
"The problem we are facing is that the onus is actually on the
policyholder to prove that there were people within 20 kilometres
of their business who were infected with Covid-19 at the time they
were forced into lockdown," she told insuranceNEWS.com.au.
Ms Bree says the firm is having to make freedom of information
requests to obtain more specific data around community
transmission, and that generally insurers are making it challenging
for businesses that may have valid claims.
"They are making it really difficult to get these ones over the
line," she said. "We are nearly three years down the track and
these small business owners are still out of pocket."
Chief Justice Allsop ordered both sides in the Jetts policy dispute
to next year provide evidence they are seeking to rely on, ahead of
a further case management hearing. [GN]
[*] NZ Gov't Accepts Key Recommendations on Class Action Reform
---------------------------------------------------------------
Simpson Grierson disclosed that the New Zealand Government has
accepted in principle the key recommendations of Te Aka Matua o te
Ture | Law Commission on class action and litigation funding law
reform, with policy work set to start in 2023. But don't expect to
see changes coming into effect anytime soon.
The Law Commission tabled its report in late June 2022 after a
substantial review of the law relating to class actions and
litigation funding, which took over two years. A summary of its key
recommendations can be found here.
Government's response
While the report contained 121 recommendations, it is not clear at
this stage to what extent these will be adopted. The Government has
said it accepts the following key recommendations 'in principle':
a statutory regime for class actions (via a new Class Actions Act)
will provide clarity and could enhance access to justice;
abolishing the torts of maintenance and champerty would clarify the
permissibility of litigation funding; and
court oversight of litigation funding agreements in class actions
should aid in ensuring the terms of agreements are fair and
reasonable.
However, the Government noted that some areas would require further
work, including policy and implementation considerations of the Law
Commission's more controversial recommendation in relation to the
introduction of a public fund for public interest class actions.
Additional work is also needed on whether litigation funding
oversight should be restricted only to class actions, and the
impacts of both class actions and court oversight of litigation
funding agreements on court resources and processes (when weighed
against the increase in the number of active cases currently before
the High Court).
Where to next?
The Government intends to undertake policy work to advance the
principles of the Law Commission's recommendations. However, this
is expected to take some time with the Government stating:
Due to the technical nature of the issues and the need for
legislative reform to give effect to the recommendations, advancing
these reforms will take a period of time and resourcing this work
will need to be balanced against other Government priorities.
Given other priorities currently facing the Government, it seems
unlikely we will see any real progress ahead of the next election.
[GN]
*********
S U B S C R I P T I O N I N F O R M A T I O N
Class Action Reporter is a daily newsletter, co-published by
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 ***