/raid1/www/Hosts/bankrupt/CAR_Public/230126.mbx
C L A S S A C T I O N R E P O R T E R
Thursday, January 26, 2023, Vol. 25, No. 20
Headlines
ACUITY BRANDS: Sued in Georgia Court Over Data Breach
AMERICAN HONDA: Summary Judgment Bid in Quackenbush Granted in Part
AMICA MUTUAL: Merullo Appeals Ruling Dismissing Insurance Suit
ANTELOPE VALLEY: Martinez Sues Over Unpaid Minimum, Overtime Wages
APERION CARE: Underpays Certified Nursing Assistants, Jackson Says
APPLE INC: Herrera Sues Over Unlawful Harvesting of Data
ARC AUTOMOTIVE: Thomas Suit Transferred to N.D. Ga.
BANKSIA HILL: Faces Class Suit Over Alleged Children Maltreatment
BENEDICTINE UNIVERSITY: Murphy Files ADA Suit in S.D. New York
BHAVIN INVESTMENTS: Smith Appeals Judgment, Dismissal Ruling
BIOVENTUS INC: Bids for Lead Plaintiff Appointment Due March 13
BIRD BOX: Fails to Pay Proper Wages, Garcia Suit Alleges
BP EXPLORATION: Bid for Summary Judgment in Griffin Suit Granted
BP EXPLORATION: Bid for Summary Judgment in Martin Suit Granted
BP EXPLORATION: Bid for Summary Judgment in Sherrod Suit Granted
BP EXPLORATION: Court Grants Bid for Summary Judgment in Moore Suit
BP EXPLORATION: Court Grants Summary Judgment Bid in Crawford Suit
BP EXPLORATION: Court Grants Summary Judgment Bid in Waxman Suit
BP EXPLORATION: Wins Bid for Summary Judgment in Beverly B3 Suit
BP EXPLORATION: Wins Bid for Summary Judgment in Binder B3 Suit
BP EXPLORATION: Wins Bid for Summary Judgment in Greene B3 Suit
BURT'S BEES INC: Lester Suit Removed to S.D. Illinois
CANADA: Military Cadet Program Sexual Abuse Class Action Pending
CAR TOYS INC: Karroll Sues Over Failure to Provide Advance Notice
CODY ASKINS: Elzen TCPA Suit Transferred to W.D. Missouri
CORRECTIONS CORP: Tardy's Bid to Intervene in Grae Suit Denied
CYTODYN INC: Faces Shareholder Suit Over COVID Drug Viability
DANGO PRODUCTS: Kaye Sues Over Automated Telephonic Sales Calls
DEN-TEX CENTRAL: Fails to Provide Proper OT Wages, Barranco Says
DR. BERG HOLDINGS: Scheibe Files Suit in S.D. California
ELEVANCE HEALTH: Landis Sues to Recover Overtime Pay
ELON PROPERTY: $500K Class Deal in Yost Suit Wins Final Approval
ENVIRONMENTAL LANDFILL: Faces Class Action Over Landfill Fire
ESS TECH: Bids for Lead Plaintiff Appointment Due March 13
FCTI INC: Loses Bid for Summary Judgment v. Polvay Class
FEGHALI FOODS: Rodriguez Files Suit in Cal. Super. Ct.
GENERAL ELECTRIC: Trivedi Securities Suit Transferred to D. Mass.
GENERAL MOTORS: Class Certification Bid Must be Filed by Feb. 24
GENERAL MOTORS: Must File Class Cert Bid Response by Jan. 27
GENWORTH LIFE: Joint Bid to Extend Deadlines OK'd in McMillan
GEOVERA SPECIALTY: Bid to Strike Class Allegations Junked
GGG DEMOLITION: Garcia Files Suit in Cal. Super. Ct.
GO FLORIDA: Does Not Pay Proper Overtime Wages, Moore Says
GOFUND ADVANCE: Bid to Certify Class in Haymount RICO Suit Denied
HOMEAGLOW INC: Hovis Suit Removed to S.D. Cal.
HOUSING WORKS: Bunting Sues Over Blind-Inaccessible Website
HP INC: Court Dismisses Freund Class Suit With Leave to Amend
HYPER MICROSYSTEMS: Gonzalez Sues Over Unlawful Biometric Scanning
JABIL CIRCUIT: Robertson Sues Over Unpaid Overtime Compensation
JORDAN SCHOOL: 10th Cir. Ruling in Title IX Class Suit Discussed
JPMORGAN CHASE: Pessin Appeals ERISA Suit Dismissal to 2nd Cir.
KEY STAFFING INC: Roby Files Suit in Cal. Super. Ct.
KING UNIVERSITY: Murphy Files ADA Suit in S.D. New York
LITTLE ROCK, AR: Edwards Files ADA Suit in E.D. Arkansas
LUCID GROUP: Motion for Dismissal of Securities Class Suit Granted
MARCO & FAMILY: Cabreja Sues Over Unpaid Minimum, Overtime Wages
MAZDA MOTOR: Filing of Class Status Bid Extended to April 2
MAZDA MOTOR: Fuel Pump Recall Prompts Class Action Lawsuit
MEDIBANK PRIVATE: Law Firms Join Forces to File Data Breach Suit
MEDICAL SECURITY: Extension of Discovery Deadlines Sought
MIDLAND CREDIT: Spence Files Suit Over Deceptive Collection Letters
MIGUEL CARDONA: Intervenors Seek Stay of Judgment Pending Appeal
MYLOCKER.COM LLC: Standing Order Entered on Patagonia Class Suit
NATIONAL MENTOR: Scheduling Order Entered in Hagans Class Suit
NEW JERSEY: Law School Students Played Role in Abuse Suit Deal
OCEAN AVENUE: Bamla Sues Over Unpaid Overtime Compensation
OLIN CORP: Bid to Extend Class Cert Discovery Deadlines OK'd
PAW BRANDS LLC: Fontanez Files ADA Suit in S.D. New York
PEAK TECHNICAL: Walker Files Suit in Cal. Super. Ct.
PENSAR BIG: Faces Sweat Suit Over Shift Managers' Unpaid Wages
PFIZER INC: Walter Suit Transferred to S.D.N.Y.
PRAIRIE HOME: Burayi Sues Over Resident Aides' Unpaid Wages
RICHARD T. AVIS: Baeza Files FDCPA Suit in W.D. Texas
RIVIER UNIVERSITY: Murphy Files ADA Suit in S.D. New York
ROADRUNNER TRANSPORTATION: Gomez Labor Suit Removed to N.D. Cal.
ROSEVILLE, CA: Pretrial Scheduling Order Entered in Hill-Colbert
SHIELDS HEALTH: Faces Class Action Over Alleged $1.9M Data Breach
SNAPCOMMERCE GOODS: Khargie Files Suit in N.D. California
SOUTHWEST AIRLINES: Bids for Lead Plaintiff Naming Due March 13
SPOTIFY USA: Saleh Wiretapping Suit Removed to D.N.J.
STABILITY AI: Faces Class Action in Calif. Over Artists' Copyright
STATEWIDE COLLECTION: Silber Files FDCPA Suit in S.D. New York
SUPERIOR TANK CO: Rodriguez Files Suit in Cal. Super. Ct.
TRANS UNION: Scheduling Order Entered in Thompson Class Suit
TWITTER INC: Laid-Off Workers Can't Pursue Claims Via Class Action
UHG I LLC: Powell Files FDCPA Suit in S.D. California
UNITED HEALTH: Mitchell Sues Over Staff Accountants' Unpaid Wages
UNITED HEALTHCARE: Faces Muccio Class Suit Over Automated Texts
UNITED STATES: Seeks Dismissal of Privacy Invasion Class Action
UNLIMITED ENTERPRISES: Underpays Logistics Drivers, Beltran Says
VIDEOJEEVES INC: Robbins Files Suit in N.D. California
WALMART INC: Hearing on Haro Conditional Status Bid Set for Feb. 22
WEST VIRGINIA: Court Narrows Claims in Jonathan R. v. Justice
WING FINANCIAL: Stoichev Files Suit in N.D. Oklahoma
*********
ACUITY BRANDS: Sued in Georgia Court Over Data Breach
------------------------------------------------------
Acuity Brands, Inc. disclosed in its Form 10-Q report for the
quarterly period ended November 30, 2022, filed with the Securities
and Exchange Commission on January 9, 2023, that a class action was
filed against the company alleging claims for negligence, breach of
contract, breach of implied contract, unjust enrichment and breach
of fiduciary duty.
On December 14, 2022, a former employee filed a putative class
action complaint against the company in the United States District
court for the Northern District of Georgia on behalf of all persons
whose personal information was compromised as a result of data
security incidents the company experienced in October 2020 and/or
December 2021.
The plaintiff alleges that the company failed to exercise
reasonable caution in securing and safeguarding her and the other
putative class members' personal information, and on that basis,
asserts claims for negligence, breach of contract, breach of
implied contract, unjust enrichment, and breach of fiduciary duty.
The plaintiff seeks class certification, unspecified monetary
damages, certain injunctive relief regarding the company's
data-security measures, additional credit-monitoring services,
other equitable relief (including disgorgement), attorneys' fees,
costs, and pre- and post-judgment interest.
Acuity Brands, Inc. is an industrial technology company based in
Georgia.
AMERICAN HONDA: Summary Judgment Bid in Quackenbush Granted in Part
-------------------------------------------------------------------
In the case, MARY QUACKENBUSH, MARISSA FEENEY, and ANNE
PELLETTIERI, on behalf of themselves and all others similarly
situated, Plaintiffs v. AMERICAN HONDA MOTOR COMPANY, INC., and
HONDA MOTOR COMPANY, LTD., a Japanese Corporation, Defendants, Case
No. C 20-05599 WHA (N.D. Cal.), Judge William Alsup of the U.S.
District Court for the Northern District of California grants in
part and denies in part the Defendants' motion for summary
judgment.
Vehicle owners who purchased their cars from authorized Honda
dealers allege that an engine component within their cars, namely,
the variable timing control actuator 14310-R44-A01 ("VTC
actuator"), was defective. Sometimes, the VTC actuator rattled on
vehicle ignition due to the premature disengagement of a stopper
pin located within it. Honda discovered the problem beginning in
2008 after receiving complaints of rattling and pursued an
eight-year investigation. After implementing numerous
countermeasures to cure the problem, Honda ultimately replaced the
VTC actuator model with a new part. The Plaintiffs say Honda's
failure to disclose this defect injured them and posed a
significant safety hazard.
The Plaintiffs filed their class action complaint in August 2020,
then a first amendment in November 2020, the operative complaint. A
motion to dismiss failed in its entirety in February 2021.
Discovery ensued for several months, and plaintiffs moved for class
certification in October 2021. In December 2021, after full
briefing and additional discovery disputes, an order certified
three classes. Both parties filed motions for reconsideration. An
order dated April 27, 2022, redefined the certified classes and
clarified the operative class claims.
There are now three certified classes. First, Quackenbush
represents the "California Repair Class," which consists of all
persons who purchased a new or used class vehicle equipped with a
VTC actuator from an authorized Honda dealer in California, and who
paid to have their VTC actuator repaired by an authorized Honda
dealer in California. This class is pursuing certified claims for
(1) violation of California's Consumer Legal Remedies Act (CLRA);
(2) violation of California's Unfair Competition Law (UCL); and (3)
fraudulent omission.
In her individual capacity, Quackenbush also pursues claims for
breach of implied warranty pursuant to (1) California's
Song-Beverly Act and (2) California Commercial Code Section 2314.
Second, Feeney represents the "Illinois Repair Class," which
consists of all persons who purchased a new or used class vehicle
equipped with a VTC actuator from an authorized dealer in Illinois,
and who paid to have their VTC actuator repaired by an authorized
Honda dealer in Illinois. This class is pursuing claims for (1)
violation of the Illinois Consumer Fraud and Deceptive Business
Practices Act ("ICFA") and (2) fraudulent omission.
In her individual capacity, Feeney also pursues a claim for breach
of implied warranty pursuant to Section 2-316 of the Illinois
Commercial Code.
Third, Pellettieri represents the "Illinois New and Used Purchaser
Class" which consists of current owners of both new and used class
vehicles who purchased their class vehicles equipped with a VTC
actuator from an authorized Honda dealer in Illinois, and former
owners of the same who resold (or traded it in) to an authorized
Honda dealer in Illinois. No member of the Illinois Repair Class
can be a member of this class, and any purchaser who received an
actuator replacement free of charge is excluded. This class is
pursuing the same claims as the Illinois Repair class, namely, (1)
violation of the ICFA and (2) fraudulent omission.
In her individual capacity, Pellettieri also pursues a breach of
implied warranty claim in violation of Section 2-316 of the
Illinois Commercial Code.
The Defendants now move for summary judgment on all named
Plaintiffs' individual implied warranty claims, Pellettieri's ICFA
and fraudulent omission claims, the California Repair Class'
fraudulent omission claim, and various damages arguments under both
Illinois and California law.
First, the Plaintiffs do not challenge dismissal of Pellettieri and
Feeney's claims for breach of implied warranty in violation of
Section 2-316 of the Illinois Commercial Code. Accordingly, Judge
Alsup grants the Defendants' motion for summary judgment on the
Illinois implied warranty claims.
Second, the Defendants offer no argument for summary judgment
regarding Quackenbush's implied warranty claim under the California
Song-Beverly Act. Accordingly, that claim remains ripe for
resolution by a jury. They, however, move for summary judgment on
Quackenbush's implied warranty claim under Section 2314 of the
California Commercial Code. The Plaintiff Quackenbush acknowledges
the general privity requirement, but nevertheless argues Gilbert
Financial Corporation v. Steelform Contracting, 145 Cal.Rptr. 448,
450 (Ct. App. 1978), has since been broadened by Burch v. Superior
Court. 223 Cal.App.4th 1411, 1422-23 (2014).
Judge Alsup disagrees. He says the exception to the privity
requirement derived from Gilbert and Burch is most accurately
summarized as "a real property owner could maintain a cause of
action against a subcontractor for breach of an implied warranty of
quality and fitness despite the lack of a contract between the
owner and the subcontractor." Maintaining the application of the
exception to the real estate context is in alignment with the
California authority and provides deference to California courts to
define their own exceptions.
As California law currently stands, save and except for real estate
construction cases allowing the homeowner to sue the subcontractor,
no third-party beneficiary exception has ever been applied in a
citable decision. The exception simply cannot apply in the present
case. Judge Alsup says if broadened in the manner plaintiff now
seeks, the privity requirement would vanish. All end-user
purchasers of consumer products could claim exempted status.
Accordingly, the Defendants' motion for summary judgment on this
claim is granted.
Third, Honda argues Pellettieri's fraudulent omission and ICFA
claims are time-barred because the limitation period had passed
before she was added to plaintiffs' first amended complaint on Nov.
13, 2020. The applicable limitation periods are five years for
fraudulent omission and three years for the ICFA. The parties are
in dispute as to when Pellettieri had enough information to
reasonably reach a conclusion that her car was defective and that
the defect was wrongfully caused by Honda.
Judge Alsup finds that the evidence is conflicting as to whether
and when Pellettieri had enough information to conclude that she
was injured, and that the injury was wrongfully caused. A jury
could reasonably find that Pellettieri's claim is not time-barred
due to the Defendants' lulling her into a false sense of security
through misleading statements. Thus, summary judgment based on the
statute of limitations as to Pellettieri's fraudulent omission and
ICFA claims is denied. These claims, however, suffer from a
class-wide defect.
Moreover, Judge Alsup finds that the fraudulent omission claim is
not focused on redeeming damages only based on the defect of
rattling itself. A genuine dispute exists as to whether the defect
(the rattling VTC actuator) is causing other physical safety
hazards (various alleged effects on the engine itself). This will
be left to the jury to decide. Hence, summary judgment on the
California Repair Class fraudulent omission claim is denied.
Fourth, the Defendants assert that the cost of repair does not
qualify as a form of restitution under the UCL or CLRA. Judge Alsup
finds the Defendants incorrect. He says reimbursing the class
members for the cost of repair would be a classic form of
restitution under the UCL and CLRA, assuming, of course, that the
Plaintiffs prove liability. Again, members of this class by
definition have already paid out-of-pocket for the repair. He
rejects the Defendants' argument that plaintiffs have failed to
show an inadequate remedy at law and thus cannot also be awarded
restitution.
The Defendants also attempt to make a tracing argument, stating
that Quackenbush and other plaintiffs cannot clearly trace their
particular funds or property to the Defendants, as they have paid
money to a third-party dealership. Thus, the argument goes, the
Plaintiffs cannot successfully establish restitution, which
requires the Defendants to return the Plaintiffs' unfairly obtained
money.
Judge Alsup holds that the Defendants' attempt to distance
themselves from profits gained by their own certified dealers
cannot rightfully prevail, especially given that they refused to
provide evidence during discovery that would permit the Plaintiffs
to make such a showing. In this respect, the Defendants are hoisted
by their own petard. This motion is denied.
Fifth, regarding only the Illinois New and Used Purchaser Class,
the Defendants argued at the hearing that there can be no recovery
for damages for either fraudulent omission or violation of the
ICFA, because the Plaintiffs have not shown that "injury is
imminent or at least quite likely to occur."
Judge Alsup finds that to use repair cost as a proxy for the
diminution of value caused by the risk of a need for repair would
provide a windfall. Under Daubert, he won't not let that theory go
to the jury. There being no class-wide method of proving the
diminution of value, he dismisses these claims with prejudice.
Finally, the Defendants attempt to resolve all the class and the
individual Plaintiffs' claims by globally arguing that there is in
fact no safety-related defect.
As Judge Alsup explained, the Plaintiffs have sufficiently offered
proof of physical damages to their engines as a result of the VTC
actuator rattling at start up. The Defendants attempt to combat
this showing by various counter arguments. Such defenses are not
appropriate for resolution on summary judgment. They will be free
to make all arguments regarding the existence and salience of the
alleged defect and resulting damages to a jury, who will ultimately
decide this hotly contested issue. Hence, summary judgment of all
claims on the basis of a "no-defect" argument is denied.
For the foregoing reasons, Judge Alsup resolves the Defendants'
summary judgment motion as follows: (1) Feeney's and Pellettieri's
individual implied warranty claims are dismissed; (2) Quackenbush's
individual implied warranty claim under Section 2314 is dismissed
(3) the Illinois New and Used Purchaser Class's fraudulent omission
and ICFA claims are dismissed. Summary judgment as to all remaining
claims and arguments is denied. Trial is set for July 24, 2023, at
8:00 a.m.
A full-text copy of the Court's Jan. 13, 2023 Order is available at
https://tinyurl.com/2782myaz from Leagle.com.
AMICA MUTUAL: Merullo Appeals Ruling Dismissing Insurance Suit
--------------------------------------------------------------
Plaintiff MICHAEL MERULLO filed an appeal from the District Court's
Memorandum Order and Judgment dated December 5, 2023, entered in
the lawsuit entitled MICHAEL MERULLO, et al., Plaintiffs v. AMICA
MUTUAL INSURANCE COMPANY, Defendant, Case No. 22-cv-10410-DJC, in
the United States District Court for the District of Massachusetts,
Boston.
As reported in the Class Action Reporter, the Plaintiff brings this
putative class action against the Defendant alleging breach of
contract (Count I), violations of Mass. Gen. L. c. 93A and c. 176D
(Counts II-VI) and seeking declaratory judgment (Count VII).
Defendant Amica has moved to dismiss Merullo's complaint for
failure to state a claim upon which relief can be granted, Fed. R.
Civ. P. 12(b)(6).
On May 29, 2020, Merullo's vehicle was damaged in a collision with
an Amica-insured driver. The driver was insured under the 2016
edition of the Massachusetts standard auto policy ("2016 Standard
Policy"). Part 4 of the 2016 Standard Policy allows for third-party
recovery of property damage.
Mr. Merullo demanded payment from Amica to repair his vehicle and
for the inherent diminution in value ("IDV") the vehicle suffered
as a result of the accident. IDV is calculated as the difference
between the market value of an automobile immediately before a
collision, and its market value after the collision, even assuming
full repair. Amica refused to provide Merullo any recovery for his
vehicle's IDV.
Mr. Merullo instituted this action in Middlesex Superior Court.
Amica removed the action to the Massachusetts District Court, and
moved to dismiss Merullo's complaint pursuant to Fed. R. Civ. P.
12(b)(6). The Court heard the parties on the motion and took the
matter under advisement.
On December 5, Judge Denise J. Casper of the District of
Massachusetts granted the Defendant's motion to dismiss the case.
He concluded that Merullo's underlying claims will be dismissed for
failure to state a claim under Rule 12(b)(6). Dismissal of his
claim for declaratory judgment that he is entitled to IDV under
Part 4 of the 2016 Standard Policy is likewise warranted.
The appellate case is captioned as Merullo v. Amica Mutual
Insurance Company, Case No. 23-1005, in the United States Court of
Appeals for the First Circuit, filed on January 9, 2023.
The briefing schedule in the Appellate Case states that appearance
form, docketing statement, and transcript report/order form were
due on January 23, 2023.[BN]
Plaintiff-Appellant MICHAEL MERULLO, on behalf of himself and all
others similarly situated, is represented by:
Michael Forrest, Esq.
YASI & YASI, P.C.
Two Salem Green
Salem, MA 01970-0000
Telephone: (877) 599-8890
- and -
Kevin J. McCullough, Esq.
MAZOW MCCULLOUGH PC
10 Derby St
Salem, MA 01970
Telephone: (978) 744-8000
Defendant-Appellee AMICA MUTUAL INSURANCE COMPANY is represented
by:
Anthony Joseph Antonellis, Esq.
Christopher Michael Reilly, Esq.
SLOANE & WALSH LLP
1 Boston Pl
201 Washington St., Ste 1600
Boston, MA 02108-0000
Telephone: (617) 523-6010
- and -
Mara E. Finkelstein, Esq.
SLOANE & WALSH LLP
148 Eastern Blvd., Ste 105
Glastonbury, CT 06033
Telephone: (617) 523-6010
ANTELOPE VALLEY: Martinez Sues Over Unpaid Minimum, Overtime Wages
------------------------------------------------------------------
Evalinda Martinez, on behalf of herself and other aggrieved
employees v. ANTELOPE VALLEY OUTPATIENT IMAGING CENTER, LLC, a
California corporation.; and DOES 1 to 100, inclusive, Case No.
23STCV01034 (Cal. Super. Ct., Los Angeles Cty., Jan. 17, 2023), is
brought under Private Attorneys' General Act of 2004 for failure to
pay minimum wages and overtime compensations.
The Defendants violated the Labor Code by failing to pay wages for
all hours worked at minimum wage, all overtime hours worked at the
overtime rate of pay, failing to authorize or permit all legally
required and/or legally compliant meal periods or pay meal period
premium wages, failing to authorize or permit all legally required
and/or legally compliant rest periods or pay rest period premium
wages, statutory penalties for failing to timely pay earned wages;
statutory penalties for failing to provide accurate wage
statements, and waiting time penalties in the form of continuation
wages for failing to timely pay employees all wages due upon
separation of employment, says the complaint.
The Plaintiff was employed by the Defendants in an hourly
non-exempt position at the Defendants' location in Los Angeles.
ANTELOPE VALLEY OUTPATIENT IMAGING CENTER, LLC, is authorized to do
business within the State of California and is doing business in
the State of California.[BN]
The Plaintiff is represented by:
David Lavi, Esq.
Arie Ebrahimian, Esq.
E&L, LLP
8889 W. Olympic Blvd., 2nd Floor
Beverly Hills, CA 90211
Phone: (213) 213-0000
Facsimile: (213) 213-0025
Email: dlavi@ebralavi.com
vgranberry@lelawfirm.com
APERION CARE: Underpays Certified Nursing Assistants, Jackson Says
------------------------------------------------------------------
REGINA JACKSON, individually and for others similarly situated,
Plaintiff v. APERION CARE, INC., Defendant, Case No. 1:23-cv-00139
(N.D. Ill., January 10, 2023) is a class action brought by the
Plaintiff pursuant to the Illinois Minimum Wage Law, the Illinois
Wage Payment and Collection Act, and the Fair Labor Standards Act
to recover from the Defendant unpaid overtime wages and other
damages for time worked off-the-clock during and outside of the
auto deducted meal periods.
Ms. Jackson was a certified nursing assistant for Aperion who
worked from approximately October 2018 through November 2021.
Aperion Care, Inc. provides health care facilities. The Company
offers skilled nursing, long, short term, psychiatric
rehabilitation services with headquarters in Lincolnwood,
Illinois.[BN]
The Plaintiff is represented by:
Douglas M. Werman, Esq.
Maureen A. Salas, Esq.
Sarah J. Arendt, Esq.
WERMAN SALAS P.C.
77 W. Washington St., Ste 1402
Chicago, IL 60602
Telephone: (312) 419-1008
Facsimile: (312) 419-1025
E-mail: dwerman@flsalaw.com
msalas@flsalaw.com
sarendt@flsalaw.com
- and -
Michael A. Josephson, Esq.
Andrew W. Dunlap, Esq.
JOSEPHSON DUNLAP LLP
11 Greenway Plaza, Suite 3050
Houston, TX 77046
Telephone: (713) 352-1100
Facsimile: (713) 352-3300
E-mail: mjosephson@mybackwages.com
adunlap@mybackwages.com
- and -
Richard J. (Rex) Burch, Esq.
BRUCKNER BURCH, PLLC
11 Greenway Plaza, Ste 3025
Houston, TX 77046
Telephone: (713) 877-8788
Facsimile: (713) 877-8065
E-mail: rburch@brucknerburch.com
APPLE INC: Herrera Sues Over Unlawful Harvesting of Data
--------------------------------------------------------
Juan Herrera, on behalf of himself and all others similarly
situated v. APPLE, INC., Case No. 1:23-cv-00411 (S.D.N.Y., Jan. 17,
2023), is brought against Defendant for its practice of harvesting
data from iPhones and Apple's other consumer personal computing
devices, such as iPads, Macs using apps from the Apple "App Store,"
etc., [hereinafter "User Information" or "UI"] which violate state
consumer deceptive practice and advertising laws; federal and state
trespass laws; and breaches of various equitable principles and of
common law.
Apple records vast amounts of User Information without the consent
or even the knowledge of Plaintiff from all of his consumer
computing devices that can utilize "apps" from Apple's online App
Store. UI is, in fact collected, stored, and maintained by
Defendant to, inter alia, sell targeted advertisements to third
parties that are specifically targeted at various demographics.
While the details of the Defendant's violations and illegal
behavior are very technical and complicated, it all boils down to a
very simple idea: for all of Apple's promises about how private
your iPhone is, the company vacuums up a lot of data about
consumers without permission.
The Plaintiff brings this action on behalf of all persons whose UI
was harvested, acquired, and/or misappropriated because of
Defendant's surreptitious and unauthorized access of such UI. The
Defendant's conduct amounts to breach of implied contract,
violation of federal and state criminal computer trespass statutes,
the Computer Fraud and Abuse Act of 1986.
The Defendant disregarded the rights of the Plaintiff and Class
Members by intentionally and willfully accessing, recording,
harvesting, and storing user actions, activities, inputs, and other
metadata and for future financial gain, says the complaint.
The Plaintiff is a current iPhone customer and has bought several
successive iPhones.
Apple describes itself as a company which "designs, manufactures
and markets smartphones, personal computers, tablets, wearables and
accessories, and sells a variety of related services."[BN]
The Plaintiff is represented by:
Paul C. Whalen, Esq.
THE LAW OFFICE OF PAUL C. WHALEN, P.C.
768 Plandome Road
Manhasset, NY 11030
Phone: (516) 426-6870
Email: pcwhalen@pm.me
- and -
John A. Yanchunis, Esq.
MORGAN & MORGAN COMPLEX LITIGATION GROUP
201 N. Franklin Street, 7th Floor
Tampa, FL 33602
Phone: (813) 559-4908
Facsimile: (813) 222-4795
Email: jyanchunis@forthepeople.com
ARC AUTOMOTIVE: Thomas Suit Transferred to N.D. Ga.
---------------------------------------------------
The case styled SHONA THOMAS and MEGAN REYNOLDS, individually and
on behalf of all other similarly situated individuals, Plaintiffs
v. ARC AUTOMOTIVE, INC., TOYODA GOSEI NORTH AMERICA, INC., GENERAL
MOTORS, HYUNDAI MOBIS CO., LTD., MOBIS PARTS AMERICA, LLC, HYUNDAI
MOTOR CO., LTD., HYUNDAI MOTOR AMERICA, INC., HYUNDAI-KIA AMERICA
TECHNICAL CENTER, INC., Defendants, Case No. 1:22-cv-05067, was
removed from the United States District Court for the Northern
District of Illinois to the United States District Court for the
Northern District of Georgia on January 11, 2023.
The Clerk of Court for the Northern District of Georgia assigned
Case No. 1:23-cv-00141-ELR to the proceeding.
The Plaintiffs bring this claim individually and on behalf of the
Class against all Defendants for violation of the Illinois Consumer
Fraud and Deceptive Business Practices Act and the Illinois
Deceptive Trade Practices Act by participating in misleading,
false, and deceptive acts, including by failing to disclose and
concealing the inflator defect of Class purchased vehicles.
The Defendants are automobile manufacturers in the U.S.[BN]
The Plaintiff is represented by:
Peter J. Flowers, Esq.
MEYERS & FLOWERS, LLC
3 N. 2nd Street, Suite 300
St. Charles, IL 60174
Telephone: (630) 232-6333
Facsimile: (630) 845-8982
E-mail: pjf@meyers-flowers.com
BANKSIA HILL: Faces Class Suit Over Alleged Children Maltreatment
-----------------------------------------------------------------
Rebecca Trigger of ABC News reports that a girl with severe autism
was locked in solitary confinement at a West Australian juvenile
detention centre for more than seven months, documents filed in the
Australian Federal Court claim.
The allegations form part of a class action involving more than 500
children and young adults who have been held in Western Australia's
notorious Banksia Hill Detention Centre.
In an affidavit filed to the Federal Court last year but only
published on Wednesday, lawyer Stewart Levitt said the now
18-year-old woman was confined in the "Cue Unit" on and off between
May 2018 and March 2020.
The longest stretch she spent there was from September 10, 2018,
until April 29, 2019, when she was around 13 years of age.
In the affidavit, Mr Levitt alleges that while held there the girl
was regularly locked in a cell alone for 23 hours a day.
She was only allowed out for an hour each day into a small room, or
a three-by-four metre concrete area enclosed by cyclone fencing.
It is alleged that when the girl was taken out of solitary
confinement to see her parents, her legs were shackled and her
hands cuffed.
The affidavit also alleges the girl was denied visits from her
parents as punishment and she was forced to "earn" her bedding.
"She felt that she was being treated like a dog and responded to
this by sleeping on the concrete floor and pretending she was a
dog, " the affidavit reads.
"She would sleep on the bare floor rather than the mattress because
the mattresses were dirty with saliva and excrement."
It is alleged she was forced to spend extended time locked up in
solitary confinement because her autism spectrum disorder (ASD)
caused her to be reactive to disciplinary policies.
It is also alleged that when she refused to change into underwear
and uniforms stained with menstrual blood from other detainees, she
was subjected to "use of force" by officers.
"She found it intolerable to wear underwear and outer garments that
had visible menstrual stains from their use by other detainees,
"the affidavit said.
"She was frequently subjected to strip searches and watched by
officers while she was in the shower. "
"She found these experiences distressing and humiliating."
The document also alleges she was held down and had her head banged
against a wall by multiple officers.
"Many times, officers subjected her to instruments of restraint,
such as handcuffs, leg shackles, and spit hoods," it said.
"She found the use of force and imposition of restraints on her
extremely traumatic and often reacted to these incidents by
escalating her non-compliant behaviour and acts of self-harm."
It is also claimed the girl was given very little access to
education because of her long periods of solitary confinement and
was not given adequate therapeutic support for her ASD.
It is alleged the extended confinement, strip searches and use of
force had a "compounding effect" on her disorder.
The other lead applicant, a young man with an intellectual
disability, was also allegedly subjected to excessive force and
denied family visits.
The affidavit alleges he was held in solitary confinement at one
point for 10 days at a time.
It also alleges he was subjected to a controversial restraint
practice known as "folding up".
The practice involves bending a child's legs over their buttocks
and then pressing down.
Following the airing of footage of the practice being applied to a
detainee on the ABC's Four Corners, the Department of Justice last
month announced it was being phased out.
The affidavit alleges he was taunted about his intellectual and
mental health disabilities by staff and not given access to any
education while in the cell.
The class action claims children held in the detention facility are
subjected to discrimination, unlawful imprisonment, restraint and
assault and battery.
It alleges the state has breached its duty of care obligations to
the children inside Banksia Hill.
In the wake of mounting criticism of the facility, the West
Australian government recently announced it would build a second
youth justice facility in WA's Kimberley region.
It has also announced a $63 million investment in improving and
strengthening security in accommodation, education and training
areas used by "high risk and difficult" detainees.
A new "cultural support and enrichment service" will also be
funded, which will be run by an Aboriginal-controlled
organisation.
A further $22 million will go towards hiring more staff, while $10
million will be spent on expanding multidisciplinary mental health
services.
The class action case is expected to take two to three years.[GN]
BENEDICTINE UNIVERSITY: Murphy Files ADA Suit in S.D. New York
--------------------------------------------------------------
A class action lawsuit has been filed against Benedictine
University. The case is styled as James Murphy, for himself and on
behalf of all other persons similarly situated v. Benedictine
University, Case No. 1:23-cv-00407 (S.D.N.Y., Jan. 17, 2023).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Benedictine University -- https://ben.edu/ -- is a private Roman
Catholic university in Lisle, Illinois.[BN]
The Plaintiff is represented by:
Jeffrey Michael Gottlieb, Esq.
Michael A. LaBollita, Esq.
GOTTLIEB & ASSOCIATES
150 E. 18 St., Suite PHR
New York, NY 10003
Phone: (212) 228-9795
Fax: (212) 982-6284
Email: nyjg@aol.com
michael@gottlieb.legal
BHAVIN INVESTMENTS: Smith Appeals Judgment, Dismissal Ruling
------------------------------------------------------------
Plaintiff Torin Smith filed an appeal from the District Court's
Judgment dated November 15, 2021 and Order dated October 13, 2022,
entered in the lawsuit entitled Torin Smith, individually and on
behalf of all others similarly situated v. Rajan Patel, Bhavin
Investments, Inc., Case No. 4:21-cv-04035-SOH, in the United States
District Court for the Western District of Arkansas-Texarkana.
On April 21, 2021, Plaintiff filed his complaint against
Defendants, bringing claims for violation of the Fair Labor
Standards Act and the Arkansas Minimum Wage Act. The Plaintiff
alleges that he was deprived of owed wages and overtime during his
work while employed at a Super 8 Motel in Texarkana, Arkansas, that
is owned and operated by Defendant Bhavin Investments, Inc.
On August 11, 2021, the Defendants filed a Motion for Default
Judgment.
On November 15, 2021, Honorable Susan O. Hickey entered an Order
granting in part and denying in part Defendants' Motion for Default
Judgment. The Court ruled that the Plaintiff's Motion for Default
Judgment is GRANTED as to Defendant Bhavin Investments, Inc. The
judgment is for the amount of $42,000, with $21,000 calculated from
unpaid minimum wages and overtime, and $21,000 in liquidated
damages pursuant to 28 U.S.C Section 216(d) and Ark. Code Ann.
Section 11-4-218(a)(1).
On October 13, 2022, Judge Hickey further entered an Order
dismissing the case with prejudice.
The appellate case is captioned as Torin Smith v. Rajan Patel, et
al., Case No. 23-1037, in the United States Court of Appeals for
the Eighth Circuit, filed on January 9, 2023.
Plaintiff-Appellant Torin Smith, individually and on behalf of all
others similarly situated, appears pro se.[BN]
BIOVENTUS INC: Bids for Lead Plaintiff Appointment Due March 13
---------------------------------------------------------------
Benzinga of EIN News reports that if you are a shareholder who
purchased or otherwise acquired Bioventus Class A common stock
pursuant and/or traceable to the Offering Documents in connection
to the Company's IPO or Bioventus securities during the Class
Period, you have until March 13, 2023 to ask the Court to appoint
you as Lead Plaintiff for the class action lawsuit has been filed
against Bioventus Inc. ("Bioventus" or the "Company") BVS and
certain officers and directors.
The class action, filed in the United States District Court for the
Middle District of North Carolina, and docketed under 23-cv-00032,
is on behalf of a class consisting of all persons and entities
other than Defendants that purchased or otherwise acquired: (a)
Bioventus Class A common stock pursuant and/or traceable to the
Offering Documents (defined below) issued in connection with the
Company's initial public offering conducted on or about February
11, 2021 (the "IPO" or "Offering"); and/or (b) Bioventus securities
between February 11, 2021 and November 21, 2022, both dates
inclusive (the "Class Period"). Plaintiff pursues claims against
the Defendants under the Securities Act of 1933 and the Securities
Exchange Act of 1934.
Bioventus is a medical device company that focuses on developing
and commercializing clinical treatments to engage and enhance the
body's natural healing process.
On January 20, 2021, Bioventus filed a registration statement on
Form S-1 with the U.S. Securities and Exchange Commission ("SEC")
in connection with the IPO, which, after several amendments, was
declared effective by the SEC on February 10, 2021 (the
"Registration Statement").
On or about February 11, 2021, pursuant to the Registration
Statement, Bioventus conducted the IPO, issuing 8 million shares of
its Class A common stock to the public at the Offering price of
$13.00 per share.
On February 12, 2021, Bioventus filed a prospectus on Form 424B4
with the SEC in connection with the IPO, which incorporated and
formed part of the Registration Statement (the "Prospectus" and,
together with the Registration Statement, the "Offering
Documents").
The Offering Documents were negligently prepared and, as a result,
contained untrue statements of material fact or omitted to state
other facts necessary to make the statements made not misleading
and were not prepared in accordance with the rules and regulations
governing their preparation. Additionally, throughout the Class
Period, Defendants made materially false and misleading statements
regarding the Company's business, operations, and compliance
policies. Specifically, the Offering Documents and Defendants made
false and/or misleading statements and/or failed to disclose that:
(i) Bioventus suffered from significant liquidity issues; (ii) the
Company's rebate practices were unsustainable; (iii) accordingly,
Defendants overstated the Company's business and financial
prospects; (iv) Bioventus maintained deficient disclosure controls
and procedures and internal control over financial reporting with
respect to the timely recognition of quarterly rebates; (v) all the
foregoing increased the risk that the Company would be forced to
recognize a significant non-cash impairment charge, could not
timely file one or more of its financial reports, would have to
amend one or more of its financial statements, and could not meet
its financial obligations as they came due; and (vi) as a result,
the Offering Documents and Defendants' public statements throughout
the Class Period were materially false and/or misleading and failed
to state information required to be stated therein.
On November 16, 2022, Bioventus issued a press release announcing
that it could not timely file its quarterly report for third
quarter of 2022 because "of the recent decline in the Company's
market capitalization subsequent to its previously announced
financial results for the third quarter of 2022," which resulted in
the Company needing "additional time . . . to assess whether a
non-cash impairment charge is required for the third quarter of
2022." Bioventus also revealed that it "is seeking resolution
related to the validity of a revised invoice" for certain "rebate
claims" and that "[t]he recognition of additional rebates may
impact Bioventus' recently announced revenue guidance." In
addition, Bioventus disclosed that "its internal controls related
to the timely recognition of quarterly rebates were inadequate
specifically for the period ended October 1, 2022" and that the
Company "is also evaluating whether [it] will be able to meet all
of its financial obligations as they come due within one year after
the date its financial statements for the period ended October 1,
2022, are issued."
Bioventus's stock price fell $1.00 per share, or 33.67%, to close
at $1.97 per share on November 17, 2022.
Then, on November 21, 2022, Bioventus issued a press release
announcing revised third quarter 2022 results to account for
"additional rebate claims related to certain of the Company's
products and a non-cash impairment charge" that amounted to $189.2
million "due to the recent decline in our market capitalization
subsequent to our previously announced financial results for the
three and nine months ended October 1, 2022." That same day,
Bioventus belatedly filed its quarterly report on Form 10-Q with
the SEC for the third quarter of 2022, advising of various changes
to Bioventus's historical practices that were necessary to account
for rebates, stating that these changes materially impacted the
Company's evaluation of its ability to meet debt covenants,
resulting in liquidity and going concern disclosures.
Bioventus's stock price fell $0.07 per share, or 3.72%, to close at
$1.81 per share on November 22, 2022, representing a total decline
of 86.08% from the IPO price.
As of the time this Complaint was filed, Bioventus's Class A common
stock continues to trade below the $13.00 per share Offering price,
damaging investors.
Pomerantz LLP, with offices in New York, Chicago, Los Angeles,
London, Paris, and Tel Aviv, is acknowledged as one of the premier
firms in the areas of corporate, securities, and antitrust class
litigation. Founded by the late Abraham L. Pomerantz, known as the
dean of the class action bar, Pomerantz pioneered the field of
securities class actions. Today, more than 85 years later,
Pomerantz continues in the tradition he established, fighting for
the rights of the victims of securities fraud, breaches of
fiduciary duty, and corporate misconduct. The Firm has recovered
numerous multimillion-dollar damages awards on behalf of class
members. See www.pomlaw.com
If you are a shareholder who purchased or otherwise acquired
Bioventus Class A common stock pursuant and/or traceable to the
Offering Documents in connection to the Company's IPO or Bioventus
securities during the Class Period, you have until March 13, 2023
to ask the Court to appoint you as Lead Plaintiff for the class. A
copy of the Complaint can be obtained at www.pomerantzlaw.com. To
discuss this action, contact Robert S. Willoughby at
newaction@pomlaw.com or 888.476.6529 (or 888.4-POMLAW), toll-free,
Ext. 7980. Those who inquire by e-mail are encouraged to include
their mailing address, telephone number, and the number of shares
purchased.
CONTACT:
Robert S. Willoughby
Pomerantz LLP
rswilloughby@pomlaw.com
888-476-6529 ext. 7980 [GN]
BIRD BOX: Fails to Pay Proper Wages, Garcia Suit Alleges
--------------------------------------------------------
INAKI GARCIA, on behalf of herself and other similarly situated
aggrieved employees, Plaintiff v. BIRD BOX; ARTUR KASABYAN; and
DOES 1 to 25, inclusive, Defendants, Case No. 23STCV00613 (Cal.
Super., Los Angeles Cty., January 11, 2023) arises from the
Defendants' unlawful labor practices in violation of the California
Labor Code and the California Business and Professions Code.
The Plaintiff files this suit over the Defendants' failure: to
compensate for all hours worked; pay minimum wages; pay overtime;
provide accurate itemized wage statements; pay wages owed every pay
period; pay wages when employment ends; give rest breaks; give meal
breaks; reimburse business expenses; provide personnel records; and
provide pay records; as well as for unlawful tip collection,
retaliation, and wrongful termination in violation of Public
Policy.
The Plaintiff started working for Bird Box in June 2021 with his
employment ending in late 2021. The Plaintiff was classified as an
hourly, non-exempt employee and earned $15/hour.
Bird Box is a fast-food restaurant based in Los Angeles,
California.[BN]
The Plaintiff is represented by:
Harout Messrelian, Esq.
MESSRELIAN LAW INC.
500 N. Central Ave., Suite 840
Glendale, CA 91203
Telephone: (818) 484-6531
Facsimile: (818) 956-1983
E-mail: hm@messrelianlaw.com
BP EXPLORATION: Bid for Summary Judgment in Griffin Suit Granted
----------------------------------------------------------------
In the case, ALICE M. GRIFFIN, et al. v. BP EXPLORATION &
PRODUCTION INC., et al., SECTION M (4), Civil Action No. 17- 3244
(E.D. La.), Judge Barry W. Ashe of the U.S. District Court for the
Eastern District of Louisiana:
a. denies Griffin's motion to deem admissible the opinions of
their purported causation experts, Patricia Williams,
Ph.D., C. Ann Conn, M.D., and Lee Lemond;
b. grants BP's motion to exclude causation opinions of
Williams; and
c. grants BP's motion for summary judgment due to Griffin's
inability to prove general causation.
Before the Court is a motion by Plaintiffs Dannette Barthelemy and
Kully Griffin, individually and on behalf of the decedent, Alice
Griffin (collectively, "Griffin"), to deem admissible the opinions
of their purported causation experts, Williams and Lemond, because
of the Defendants' alleged spoliation of evidence related to the
oil-spill cleanup workers' exposure to oil and other chemicals.
Defendants BP Exploration & Production Inc., BP America Production
Co., and BP p.l.c. (collectively, "BP") respond in opposition.
Also before the Court are three Daubert motions filed by BP to
strike and exclude the causation opinions of Griffin's purported
experts, Susan Andrews, Ph.D., Williams, and Conn. Griffin responds
in opposition, and BP replies in further support of the motions.
And, finally, before the Court is BP's motion for summary judgment
arguing that the case should be dismissed because Griffin cannot
prove general causation without an admissible expert opinion.
Griffin responds in opposition, and BP replies in further support
of the motion.
The case is one of the "B3 cases" arising out of the Deepwater
Horizon oil spill that occurred on April 20, 2010. The B3
plaintiffs all make claims for personal injury and wrongful death
due to exposure to oil and/or other chemicals used during the oil
spill response (e.g. dispersant). These cases were originally part
of a multidistrict litigation ("MDL") pending in another section of
the Court before Judge Carl J. Barbier. When Judge Barbier approved
the Deepwater Horizon medical benefits class action settlement
agreement, the B3 plaintiffs either opted out of the settlement or
were excluded from the class definition. Judge Barbier then severed
the B3 cases from the MDL, and those cases were reallotted among
the judges of the Court.
Griffin alleges that she was exposed to weathered oil and
dispersants when she worked at Moran's Motel in Port Fourchon,
Louisiana, from April 20, 2010, until August of 2012 laundering
clothes belonging to the spill cleanup workers housed at the motel.
She originally sued for a whole host of medical conditions, but her
claim for chronic toxic encephalopathy ("CTE") is the only one
currently being pursued. Griffin opted out of the medical benefits
class action settlement agreement. In this action, she asserts
claims for negligence with respect to the oil spill and cleanup.
In the case management order for the B3 bundle of cases, Judge
Barbier noted that, to prevail, B3 plaintiffs must prove that the
legal cause of the claimed injury or illness is exposure to oil or
other chemicals used during the response. He further observed that
causation will likely be the make-or-break issue for many B3 cases,
and the issue of causation in these toxic tort cases will require
an individualized inquiry.
Griffin offers the opinions of three purported experts in her
attempt to prove causation: neuropsychologist Andrews, toxicologist
Williams, and neurologist Conn. BP seeks to exclude all these
experts, and consequently, the dismissal of Griffin's case for
failure to prove causation. Griffin opposes BP's motions on the
merits but also argues that her causation experts' opinions should
be admitted due to BP's spoliation of evidence.
First, Judge Ashe examines Griffin's spoliation motion. Griffin's
spoliation motion is substantially the same as those filed by the
plaintiffs and denied by the Court in other B3 cases, citing
Fairley v. BP Expl. & Prod. Inc., 2022 WL 16731817 (E.D. La. Nov.
3, 2022); Moore v. BP Expl. & Prod. Inc., 2022 WL 16694238 (E.D.
La. Nov. 3, 2022). As did the plaintiff in Fairley, Griffin argues
that the Court should deem admissible the opinions of her purported
general causation expert because BP spoliated evidence by failing
to undertake a monitoring program to develop evidence of the
cleanup workers' actual toxic exposures to the specific chemicals
that were in the weathered oil.
In Fairley, the Court found that the plaintiff did not meet his
burden to prove spoliation because there was no allegation that BP
destroyed, altered, or failed to preserve any existing evidence,
there was no proof that BP had a duty to conduct a monitoring
program to create evidence in order to preserve it, there was no
evidence that BP acted in bad faith, and finally, the proposed
remedy of deeming the purported general causation expert's opinions
relevant would not cure the deficiencies in his expert report.
As have other B3 plaintiffs, Griffin attempts to avoid this same
outcome by attaching to her motion an affidavit executed by Dr.
Linda Birnbaum, former director of the National Institute of
Environmental Health and Safety, in which she states that a
monitoring program would have improved worker safety, would have
helped to protect workers from long- and short- term health
effects, and would have been the only way to obtain quantitative
data on spill workers' exposures that could now be used to
establish a person's exposure to a "given chemical at a given
level." Dr. Birnbaum also attests that the Gulf Study is the best
available evidence of the workers' exposures, and that it is not
"plausible" to establish an oil-spill responder's quantitative
exposure to a particular chemical at a given level based on the
data that was collected during the spill response when considering
the thousands of chemicals and other variables at play.
The addition of Dr. Birnbaum's affidavit does not save Griffin's
spoliation motion, Judge Ashe holds. Dr. Birnbaum's affidavit does
not establish that BP destroyed, altered, or failed to preserve any
existing evidence, nor that BP had a duty to conduct a monitoring
program to create evidence in order to preserve it. Moreover, Dr.
Birnbaum's affidavit does not provide evidence that BP acted in bad
faith. Thus, like the plaintiff in Fairley, Griffin has not met her
burden on spoliation. Accordingly, for the reasons stated in the
Order & Reasons issued in Fairley, which are not altered by Dr.
Birnbaum's affidavit, Griffin's spoliation motion must be denied.
Next, Judge Ashe examines BP's Daubert motion to exclude Williams.
Griffin offers Williams, a board-certified toxicologist with a
doctorate in anatomy, as a general and specific causation expert.
Williams offers a general causation opinion that there is a
cause-and-effect relationship between arsenic exposure and CTE, and
a specific causation opinion that Griffin's CTE was caused by
arsenic exposure sustained while washing clothes of the cleanup
workers. BP argues that Williams's opinions should be excluded
because she does not identify the dose of arsenic known to cause
any form of CTE or Griffin's dose of exposure to arsenic.
Judge Ashe holds that because identification of the harmful level
of exposure to a chemical is one of the minimal facts necessary to
sustain the Plaintiff's burden in a toxic tort case, and Williams
has not provided this information with respect to the general
population, her report is unreliable and her general causation
opinions inadmissible. This is not the first court to so hold.
Accordingly, BP's motion in limine to exclude Williams' testimony
must be granted.
Finally, Judge Ashe examines BP's motion for summary judgment. BP
argues that it is entitled to summary judgment because Griffin
lacks general causation expert testimony. As he explained, Judge
Ashe has excluded Williams as a general causation expert. Without a
general causation expert, Griffin's claims arising from chemical
exposure must be dismissed with prejudice. Like the plaintiff in
Jenkins v. BP Exploration & Production Inc., Griffin attempts to
save her case with Dr. Birnbaum's affidavit, but for the same
reasons given in that case, the affidavit neither cures nor
explains the deficiencies in the report of Griffin's purported
general causation expert.
Accordingly, for the foregoing reasons, Judge Ashe denies Griffin's
spoliation motion; grants BP's motion to strike and exclude the
general causation opinion of Williams, grants BP's motion for
summary judgment; and dismissed with prejudice Griffin's claims.
A full-text copy of the Court's Jan. 13, 2023 Order & Reasons is
available at https://tinyurl.com/525brar5 from Leagle.com.
BP EXPLORATION: Bid for Summary Judgment in Martin Suit Granted
---------------------------------------------------------------
In the case, STERLING MARTIN v. BP EXPLORATION & PRODUCTION INC.,
et al., SECTION M (5), Civil Action No. 17-3249 (E.D. La.), Judge
Barry W. Ashe of the U.S. District Court for the Eastern District
of Louisiana:
a. denies Martin's motion to deem admissible the opinions of
their purported causation experts, Patricia Williams,
Ph.D., C. Ann Conn, M.D., and Lee Lemond;
b. grants BP's motion to exclude causation opinions of
Williams; and
c. grants BP's motion for summary judgment due to Martin's
inability to prove general causation.
Before the Court is a motion by Martin to deem admissible the
opinions of their purported causation experts, Williams, Conn, and
Lemond, because of the Defendants' alleged spoliation of evidence
related to the oil-spill cleanup workers' exposure to oil and other
chemicals. Defendants BP Exploration & Production Inc., BP America
Production Co., and BP p.l.c. (collectively, "BP") respond in
opposition.
Also before the Court are three Daubert motions filed by BP to
strike and exclude the causation opinions of Martin's purported
experts, Susan Andrews, Ph.D., Williams, and Conn. Martin responds
in opposition, and BP replies in further support of the motions.
And, finally, before the Court is BP's motion for summary judgment
arguing that the case should be dismissed because Martin cannot
prove general causation without an admissible expert opinion.
Martin responds in opposition, and BP replies in further support of
the motion.
The case is one of the "B3 cases" arising out of the Deepwater
Horizon oil spill that occurred on April 20, 2010. The B3
plaintiffs all make claims for personal injury and wrongful death
due to exposure to oil and/or other chemicals used during the oil
spill response (e.g. dispersant). These cases were originally part
of a multidistrict litigation ("MDL") pending in another section of
the Court before Judge Carl J. Barbier. When Judge Barbier approved
the Deepwater Horizon medical benefits class action settlement
agreement, the B3 plaintiffs either opted out of the settlement or
were excluded from the class definition. Judge Barbier then severed
the B3 cases from the MDL, and those cases were reallotted among
the judges of the Court.
Martin alleges that he was exposed to weathered oil and dispersants
when he performed oil-spill cleanup work for 79 days in the summer
of 2010, near Horn Island, Mississippi, as the captain of a
vessel.16 He originally sued for a whole host of medical
conditions, but his claim for chronic toxic encephalopathy ("CTE")
is the only one currently being pursued. He opted out of the
medical benefits class action settlement agreement. In this action,
he asserts claims for negligence with respect to the oil spill and
cleanup.
In the case management order for the B3 bundle of cases, Judge
Barbier noted that, to prevail, B3 plaintiffs must prove that the
legal cause of the claimed injury or illness is exposure to oil or
other chemicals used during the response. He further observed that
causation will likely be the make-or-break issue for many B3 cases,
and the issue of causation in these toxic tort cases will require
an individualized inquiry.
Martin offers the opinions of three purported experts in his
attempt to prove causation: neuropsychologist Andrews, toxicologist
Williams, and neurologist Conn. BP seeks to exclude all these
experts, and consequently, the dismissal of Martin's case for
failure to prove causation. Martin opposes BP's motions on the
merits but also argues that his causation experts' opinions should
be admitted due to BP's spoliation of evidence.
First, Judge Ashe examines Martin's spoliation motion. Martin's
spoliation motion is substantially the same as those filed by the
plaintiffs and denied by the Court in other B3 cases, citing
Fairley v. BP Expl. & Prod. Inc., 2022 WL 16731817 (E.D. La. Nov.
3, 2022); Moore v. BP Expl. & Prod. Inc., 2022 WL 16694238 (E.D.
La. Nov. 3, 2022). As did the plaintiff in Fairley, Martin argues
that the Court should deem admissible the opinions of her purported
general causation expert because BP spoliated evidence by failing
to undertake a monitoring program to develop evidence of the
cleanup workers' actual toxic exposures to the specific chemicals
that were in the weathered oil.
In Fairley, the Court found that the plaintiff did not meet his
burden to prove spoliation because there was no allegation that BP
destroyed, altered, or failed to preserve any existing evidence,
there was no proof that BP had a duty to conduct a monitoring
program to create evidence in order to preserve it, there was no
evidence that BP acted in bad faith, and finally, the proposed
remedy of deeming the purported general causation expert's opinions
relevant would not cure the deficiencies in his expert report.
As have other B3 plaintiffs, Martin attempts to avoid this same
outcome by attaching to her motion an affidavit executed by Dr.
Linda Birnbaum, former director of the National Institute of
Environmental Health and Safety, in which she states that a
monitoring program would have improved worker safety, would have
helped to protect workers from long- and short- term health
effects, and would have been the only way to obtain quantitative
data on spill workers' exposures that could now be used to
establish a person's exposure to a "given chemical at a given
level." Dr. Birnbaum also attests that the Gulf Study is the best
available evidence of the workers' exposures, and that it is not
"plausible" to establish an oil- spill responder's quantitative
exposure to a particular chemical at a given level based on the
data that was collected during the spill response when considering
the thousands of chemicals and other variables at play.
The addition of Dr. Birnbaum's affidavit does not save Martin's
spoliation motion, Judge Ashe holds. Dr. Birnbaum's affidavit does
not establish that BP destroyed, altered, or failed to preserve any
existing evidence, nor that BP had a duty to conduct a monitoring
program to create evidence in order to preserve it. Moreover, Dr.
Birnbaum's affidavit does not provide evidence that BP acted in bad
faith. Thus, like the plaintiff in Fairley, Martin has not met her
burden on spoliation. Accordingly, for the reasons stated in the
Order & Reasons issued in Fairley, which are not altered by Dr.
Birnbaum's affidavit, Martin's spoliation motion must be denied.
Next, Judge Ashe examines BP's Daubert motion to exclude Williams.
Martin offers Williams, a board-certified toxicologist with a
doctorate in anatomy, as a general and specific causation expert.
Williams offers a general causation opinion that there is a
cause-and-effect relationship between arsenic exposure and CTE, and
a specific causation opinion that Martin's CTE was caused by
arsenic exposure sustained while washing clothes of the cleanup
workers. BP argues that Williams' opinions should be excluded
because she does not identify the dose of arsenic known to cause
any form of CTE or Martin's dose of exposure to arsenic.
Judge Ashe holds that because identification of the harmful level
of exposure to a chemical is one of the minimal facts necessary to
sustain the Plaintiff's burden in a toxic tort case, and Williams
has not provided this information with respect to the general
population, her report is unreliable and her general causation
opinions inadmissible. This is not the first court to so hold.
Accordingly, BP's motion in limine to exclude Williams' testimony
must be granted.
Finally, Judge Ashe examines BP's motion for summary judgment. BP
argues that it is entitled to summary judgment because Martin lacks
general causation expert testimony. As he explained, Judge Ashe has
excluded Williams as a general causation expert. Without a general
causation expert, Martin's claims arising from chemical exposure
must be dismissed with prejudice. Like the plaintiff in Jenkins v.
BP Exploration & Production Inc., Martin attempts to save her case
with Dr. Birnbaum's affidavit, but for the same reasons given in
that case, the affidavit neither cures nor explains the
deficiencies in the report of Martin's purported general causation
expert.
Accordingly, for the foregoing reasons, Judge Ashe denies Martin's
spoliation motion; grants BP's motion to strike and exclude the
general causation opinion of Williams; grants BP's motion for
summary judgment; and dismissed with prejudice Martin's claims.
A full-text copy of the Court's Jan. 13, 2023 Order & Reasons is
available at https://tinyurl.com/3daupuuw from Leagle.com.
BP EXPLORATION: Bid for Summary Judgment in Sherrod Suit Granted
----------------------------------------------------------------
In the case, CHRISTOPHER SHERROD v. BP EXPLORATION & PRODUCTION,
INC., ET AL., SECTION: D (1), Civil Action No. No. 17- 3410 (E.D.
La.), Judge Windy B. Vitter of the U.S. District Court for the
Eastern District of Louisiana grants:
a. BP's Daubert Motion to Exclude the Causation Testimony of
Plaintiff's Expert, Dr. Jerald Cook; and
b. the Defendants' Motion for Summary Judgment.
Before the Court is BP's Daubert Motion to Exclude the Causation
Testimony of Plaintiff's Expert, Dr. Jerald Cook filed by
Defendants BP Exploration & Production Inc., BP America Production
Co., and BP p.l.c. as well as the Defendants' Motion for Summary
Judgment. Halliburton Energy Services, Inc., Transocean Holdings,
LLC, Transocean Deepwater, Inc., and Transocean Offshore Deepwater
Drilling, Inc. (collectively "Defendants") have joined in both
motions. Sherrod opposes both Motions. The Defendants have filed
Replies in support of their Motions and the Plaintiff has filed a
Supplemental Memorandum in Opposition to BP's Daubert Motion to
Exclude the Causation Testimony of Plaintiffs' Expert, Dr. Jerald
Cook.
The case arises from the Deepwater Horizon oil spill in the Gulf of
Mexico in 2010 and the subsequent cleanup efforts of the Gulf
Coast. On Jan. 11, 2013, United States District Judge Carl J.
Barbier, who presided over the multidistrict litigation arising out
of the Deepwater Horizon incident, approved the Deepwater Horizon
Medical Benefits Class Action Settlement Agreement (the "MSA").
However, certain individuals, referred to as "B3" plaintiffs,
either opted out of or were excluded from the MSA. Moore opted out
of the MSA and, accordingly, is a B3 plaintiff.
The Plaintiff filed this individual action against Defendants on
April 12, 2017 to recover for injuries allegedly sustained as a
result of the oil spill. For approximately 14 months in 2010 and
2011, he worked as a cleanup worker, tasked with cleaning up oil
and oil-covered debris from the beaches and coastal areas in
Biloxi, Pascagoula, Horn Island, Ship Island, Cat Island, and Petit
Bois Island, Mississippi.
The Plaintiff alleges that the Defendants' negligence and
recklessness in both causing the Gulf oil spill and subsequently
failing to properly design and implement a clean-up response caused
him to suffer myriad injuries including rashes, irritation,
itching, dermatitis, eczema, pruritic boils, dermatophytosis,
weakness, fatigue, headaches, nasal congestion, sinusitis,
depression, panic attacks, anxiety, psychosis, hallucinations,
suicidal and homicidal ideations, GERD, abdominal pains, vomiting,
diarrhea, dental pain, caries, and pulpitis. Specifically, he seeks
to recover economic damages, personal injury damages -- including
damages for past and future medical expenses and for pain and
suffering -- punitive damages, and attorneys' fees, costs, and
expenses.
To help support his claims that exposure to the chemicals present
in the oil spilled by the Defendants caused his particular health
symptoms, the Plaintiff offers the report and testimony of Dr.
Jerald Cook. Dr. Cook is a retired Navy physician with expertise
specifically as an occupational and environmental physician. His
Report is not tailored directly to the Plaintiff's claims; rather,
Dr. Cook's generic causation Report has been utilized by numerous
B3 plaintiffs, including many plaintiffs currently before the Court
as well as in other cases before other sections of the Court.
Accordingly, Dr. Cook's Report pertains only to general causation
and not to specific causation.
The Defendants filed the instant Motion in limine and Motion for
Summary Judgment on Sept. 5, 2022. In their Motion in limine, the
Defendants contend that Dr. Cook's Report should be excluded from
testifying due to, inter alia, Dr. Cook's failure to identify the
harmful level of exposure capable of causing the Plaintiff's
particular injuries for each chemical that Plaintiff alleges to
have been exposed to. Because Dr. Cook should be excluded from
testifying, the Defendants argue, the Court should grant their
Motion for Summary Judgment as the Plaintiff is unable to establish
general causation through expert testimony, a necessary requirement
under controlling Circuit precedent. The Plaintiff opposes both
Motions, arguing that Dr. Cook's Report satisfies the Daubert
standards for reliability and relevancy and, therefore, that
summary judgment is inappropriate.
Judge Vitter explains that the burden of proof is on the B3
plaintiffs to prove that the legal cause of the claimed injury or
illness is exposure to oil or other chemicals used during the
response. To prove causation, the B3 plaintiffs are required to
provide reliable expert testimony. A plaintiff in such a case
cannot expect lay fact-finders to understand medical causation;
expert testimony is thus required to establish causation.
In the case, the Plaintiffs must provide reliable expert testimony
establishing the requisite level of exposure necessary to cause
each alleged physical harm. Accordingly, failure to properly
identify the level of exposure to a particular chemical at which
harmful effects occur necessarily renders a general causation
opinion to be unreliable and, thus, inadmissible.
Judge Vitter explains that the Court has previously considered the
June 21, 2022 version of Dr. Cook's Report offered the Plaintiff,
finding that the Report fails to meet the Daubert standards for
reliability and helpfulness to the trier of fact. For the same
reasons set forth in detail in that Order and Reasons, she
determines that the Plaintiff has failed in his burden of
establishing the reliability and relevance of his expert's report
and finds it appropriate to grant the Defendants' Motion in limine
to exclude Dr. Cook's Report. The Plaintiff accordingly lacks
expert testimony on general causation.
Without expert testimony, which is required to prove general
causation, Judge Vitter holds that the Plaintiff has failed to
demonstrate a genuine dispute of material fact regarding his claims
that his injuries were caused by exposure to oil. When a plaintiff
has no expert testimony to prove his medical diagnosis or causation
at trial, the plaintiff's suit may be dismissed at the summary
judgment stage. Thus, the Defendants' Motion for Summary Judgment
must be granted as they are entitled to judgment as a matter of law
due to the Plaintiff's failure to establish general causation.
For these reasons, Judge Vitter grants the Defendants' Daubert
Motion to Exclude the Causation Testimony of Plaintiff's Expert,
Dr. Jerald Cook; grants the Defendants' Motion for Summary
Judgment; and dismissed with prejudice the Plaintiff's claims
against the Defendants.
A full-text copy of the Court's Jan. 13, 2023 Order is available at
https://tinyurl.com/5a4htd4e from Leagle.com.
BP EXPLORATION: Court Grants Bid for Summary Judgment in Moore Suit
-------------------------------------------------------------------
In the case, FELICIA MOORE v. BP EXPLORATION & PRODUCTION, INC., ET
AL., SECTION: D (5), Civil Action No. No. 17-3576 (E.D. La.), Judge
Windy B. Vitter of the U.S. District Court for the Eastern District
of Louisiana grants:
a. BP's Daubert Motion to Exclude the Causation Testimony of
Plaintiff's Expert, Dr. Jerald Cook; and
b. the Defendants' Motion for Summary Judgment.
Before the Court is BP's Daubert Motion to Exclude the Causation
Testimony of Plaintiff's Expert, Dr. Jerald Cook filed by
Defendants BP Exploration & Production Inc., BP America Production
Co., and BP p.l.c. as well as the Defendants' Motion for Summary
Judgment. Halliburton Energy Services, Inc., Transocean Holdings,
LLC, Transocean Deepwater, Inc., and Transocean Offshore Deepwater
Drilling, Inc. (collectively "Defendants") have joined in both
motions. Moore opposes both Motions. The Defendants have filed
Replies in support of their Motions and the Plaintiff has filed a
Supplemental Memorandum in Opposition to BP's Daubert Motion to
Exclude the Causation Testimony of Plaintiffs' Expert, Dr. Jerald
Cook.
The case arises from the Deepwater Horizon oil spill in the Gulf of
Mexico in 2010 and the subsequent cleanup efforts of the Gulf
Coast. On Jan. 11, 2013, United States District Judge Carl J.
Barbier, who presided over the multidistrict litigation arising out
of the Deepwater Horizon incident, approved the Deepwater Horizon
Medical Benefits Class Action Settlement Agreement (the "MSA").
However, certain individuals, referred to as "B3" plaintiffs,
either opted out of or were excluded from the MSA. Moore opted out
of the MSA and, accordingly, is a B3 plaintiff.
The Plaintiff filed this individual action against the Defendants
on April 18, 2017 to recover for injuries allegedly sustained as a
result of the oil spill. For approximately one month in 2010, she
worked as a beach cleanup worker, tasked with cleaning up oil and
oil-covered debris from the beaches and coastal areas in Gulf
Shores, Fort Morgan, Theodore, and Earnest Beach, Alabama.
The Plaintiff alleges that the Defendants' negligence and
recklessness in both causing the Gulf oil spill and subsequently
failing to properly design and implement a clean-up response caused
her to suffer myriad injuries including rash, itching, contact
dermatitis, eczema, boils, skin blistering, crusting, dryness,
flaking, inflammation, redness or swelling, welts, chemical
pneumonitis, dyspnea, respiratory abnormalities, headaches,
migraines, sore nose, difficulty swallowing, allergic
rhinosinusitis, sinus congestion, chronic rhinitis, decreased sense
of smell, facial pain, sinus pain, atypical chest pain, loss of
visual acuity, eye irritation, joint pain, weakness, body aches,
fevers, abdominal cramps and pain, and diarrhea. Specifically, she
seeks to recover economic damages, personal injury damages --
including damages for past and future medical expenses and for pain
and suffering -- punitive damages, and attorneys' fees, costs, and
expenses.
To help support her claims that exposure to the chemicals present
in the oil spilled by the Defendants caused her particular health
symptoms, the Plaintiff offers the report and testimony of Dr.
Cook. Dr. Cook is a retired Navy physician with expertise
specifically as an occupational and environmental physician. His
Report is not tailored directly to the Plaintiff's claims; rather,
Dr. Cook's generic causation Report has been utilized by numerous
B3 plaintiffs, including many plaintiffs currently before this
Court as well as in other cases before other sections of this
court. Accordingly, Dr. Cook's Report pertains only to general
causation and not to specific causation.
The Defendants filed the instant Motion in limine and Motion for
Summary Judgment on Sept. 19, 2022. In their Motion in limine, the
Defendants contend that Dr. Cook's Report should be excluded from
testifying due to, inter alia, Dr. Cook's failure to identify the
harmful level of exposure capable of causing the Plaintiff's
particular injuries for each chemical that Plaintiff alleges to
have been exposed to. Because Dr. Cook should be excluded from
testifying, the Defendants argue, the Court should grant their
Motion for Summary Judgment as the Plaintiff is unable to establish
general causation through expert testimony, a necessary requirement
under controlling Circuit precedent. The Plaintiff opposes both
Motions, arguing that Dr. Cook's Report satisfies the Daubert
standards for reliability and relevancy and, therefore, that
summary judgment is inappropriate.
Judge Vitter explains that the burden of proof is on the B3
plaintiffs to prove that the legal cause of the claimed injury or
illness is exposure to oil or other chemicals used during the
response. To prove causation, the B3 plaintiffs are required to
provide reliable expert testimony. A plaintiff in such a case
cannot expect lay fact-finders to understand medical causation;
expert testimony is thus required to establish causation.
In the case, the Plaintiffs must provide reliable expert testimony
establishing the requisite level of exposure necessary to cause
each alleged physical harm. Accordingly, failure to properly
identify the level of exposure to a particular chemical at which
harmful effects occur necessarily renders a general causation
opinion to be unreliable and, thus, inadmissible.
Judge Vitter explains that the Court has previously considered the
June 21, 2022 version of Dr. Cook's Report offered the Plaintiff,
finding that the Report fails to meet the Daubert standards for
reliability and helpfulness to the trier of fact. For the same
reasons set forth in detail in that Order and Reasons, she
determines that the Plaintiff has failed in her burden of
establishing the reliability and relevance of her expert's report
and finds it appropriate to grant the Defendants' Motion in limine
to exclude Dr. Cook's Report. The Plaintiff accordingly lacks
expert testimony on general causation.
Without expert testimony, which is required to prove general
causation, Judge Vitter holds that the Plaintiff has failed to
demonstrate a genuine dispute of material fact regarding her claims
that her injuries were caused by exposure to oil. When a plaintiff
has no expert testimony to prove his medical diagnosis or causation
at trial, the plaintiff's suit may be dismissed at the summary
judgment stage. Thus, the Defendants' Motion for Summary Judgment
must be granted as they are entitled to judgment as a matter of law
due to the Plaintiff's failure to establish general causation.
For these reasons, Judge Vitter grants the Defendants' Daubert
Motion to Exclude the Causation Testimony of Plaintiff's Expert,
Dr. Jerald Cook; grants the Defendants' Motion for Summary
Judgment; and dismissed with prejudice the Plaintiff's claims
against the Defendants.
A full-text copy of the Court's Jan. 13, 2023 Order is available at
https://tinyurl.com/4xfznt4b from Leagle.com.
BP EXPLORATION: Court Grants Summary Judgment Bid in Crawford Suit
------------------------------------------------------------------
In the case, PATRICK CRAWFORD v. BP EXPLORATION & PRODUCTION, INC.,
ET AL., SECTION: D (5), Civil Action No. 17-3136 (E.D. La.), Judge
Windy B. Vitter of the U.S. District Court for the Eastern District
of Louisiana grants:
a. BP's Daubert Motion to Exclude the Causation Testimony of
Plaintiff's Expert, Dr. Jerald Cook; and
b. the Defendants' Motion for Summary Judgment.
Before the Court is BP's Daubert Motion to Exclude the Causation
Testimony of Plaintiff's Expert, Dr. Jerald Cook filed by
Defendants BP Exploration & Production Inc., BP America Production
Co., and BP p.l.c. as well as the Defendants' Motion for Summary
Judgment. Halliburton Energy Services, Inc., Transocean Holdings,
LLC, Transocean Deepwater, Inc., and Transocean Offshore Deepwater
Drilling, Inc. (collectively "Defendants") have joined in both
motions. Crawford opposes both Motions. The Defendants have filed
Replies in support of their Motions and the Plaintiff has filed a
Supplemental Memorandum in Opposition to BP's Daubert Motion to
Exclude the Causation Testimony of Plaintiffs' Expert, Dr. Jerald
Cook.
The case arises from the Deepwater Horizon oil spill in the Gulf of
Mexico in 2010 and the subsequent cleanup efforts of the Gulf
Coast. On Jan. 11, 2013, United States District Judge Carl J.
Barbier, who presided over the multidistrict litigation arising out
of the Deepwater Horizon incident, approved the Deepwater Horizon
Medical Benefits Class Action Settlement Agreement (the "MSA").
However, certain individuals, referred to as "B3" plaintiffs,
either opted out of or were excluded from the MSA. Moore opted out
of the MSA and, accordingly, is a B3 plaintiff.
The Plaintiff filed this individual action against Defendants on
April 10, 2017 to recover for injuries allegedly sustained as a
result of the oil spill. For approximately four months in 2010, he
worked as a beach cleanup worker, tasked with cleaning up oil and
oil-covered debris from the beaches and coastal areas in Gulfport,
Long Beach, Pass Christian, and Bay St. Louis, Mississippi.
The Plaintiff alleges that Defendants' negligence and recklessness
in both causing the Gulf oil spill and subsequently failing to
properly design and implement a clean-up response caused him to
suffer myriad injuries including rash, skin irritation, URI, acute
bronchitis, nasal congestion, sinus problems, dizziness, acute
migraine, bodily aches, hypertension, chest pain, shortness of
breath, numbness, conjunctivitis, and blurred vision. Specifically,
he seeks to recover economic damages, personal injury damages --
including damages for past and future medical expenses and for pain
and suffering -- punitive damages, and attorneys' fees, costs, and
expenses.
To help support his claims that exposure to the chemicals present
in the oil spilled by the Defendants caused his particular health
symptoms, the Plaintiff offers the report and testimony of Dr.
Jerald Cook. Dr. Cook is a retired Navy physician with expertise
specifically as an occupational and environmental physician. His
Report is not tailored directly to the Plaintiff's claims; rather,
Dr. Cook's generic causation Report has been utilized by numerous
B3 plaintiffs, including many plaintiffs currently before the Court
as well as in other cases before other sections of the Court.
Accordingly, Dr. Cook's Report pertains only to general causation
and not to specific causation.
The Defendants filed the instant Motion in limine and Motion for
Summary Judgment on Aug. 8, 2022. In their Motion in limine, the
Defendants contend that Dr. Cook's Report should be excluded from
testifying due to, inter alia, Dr. Cook's failure to identify the
harmful level of exposure capable of causing the Plaintiff's
particular injuries for each chemical that Plaintiff alleges to
have been exposed to. Because Dr. Cook should be excluded from
testifying, the Defendants argue, the Court should grant their
Motion for Summary Judgment as the Plaintiff is unable to establish
general causation through expert testimony, a necessary requirement
under controlling Circuit precedent. The Plaintiff opposes both
Motions, arguing that Dr. Cook's Report satisfies the Daubert
standards for reliability and relevancy and, therefore, that
summary judgment is inappropriate.
Judge Vitter explains that the burden of proof is on the B3
plaintiffs to prove that the legal cause of the claimed injury or
illness is exposure to oil or other chemicals used during the
response. To prove causation, the B3 plaintiffs are required to
provide reliable expert testimony. A plaintiff in such a case
cannot expect lay fact-finders to understand medical causation;
expert testimony is thus required to establish causation.
In the case, the Plaintiffs must provide reliable expert testimony
establishing the requisite level of exposure necessary to cause
each alleged physical harm. Accordingly, failure to properly
identify the level of exposure to a particular chemical at which
harmful effects occur necessarily renders a general causation
opinion to be unreliable and, thus, inadmissible.
Judge Vitter explains that the Court has previously considered the
June 21, 2022 version of Dr. Cook's Report offered the Plaintiff,
finding that the Report fails to meet the Daubert standards for
reliability and helpfulness to the trier of fact. For the same
reasons set forth in detail in that Order and Reasons, she
determines that the Plaintiff has failed in his burden of
establishing the reliability and relevance of his expert's report
and finds it appropriate to grant the Defendants' Motion in limine
to exclude Dr. Cook's Report. The Plaintiff accordingly lacks
expert testimony on general causation.
Without expert testimony, which is required to prove general
causation, Judge Vitter holds that the Plaintiff has failed to
demonstrate a genuine dispute of material fact regarding his claims
that his injuries were caused by exposure to oil. When a plaintiff
has no expert testimony to prove his medical diagnosis or causation
at trial, the plaintiff's suit may be dismissed at the summary
judgment stage. Thus, the Defendants' Motion for Summary Judgment
must be granted as they are entitled to judgment as a matter of law
due to the Plaintiff's failure to establish general causation.
For these reasons, Judge Vitter grants the Defendants' Daubert
Motion to Exclude the Causation Testimony of Plaintiff's Expert,
Dr. Jerald Cook; grants the Defendants' Motion for Summary
Judgment; and dismissed with prejudice the Plaintiff's claims
against the Defendants.
A full-text copy of the Court's Jan. 13, 2023 Order & Reasons is
available at https://tinyurl.com/2xsde5jm from Leagle.com.
BP EXPLORATION: Court Grants Summary Judgment Bid in Waxman Suit
----------------------------------------------------------------
In the case, DAVID WAXMAN v. BP EXPLORATION & PRODUCTION, INC., ET
AL., SECTION: D (2), Civil Action No. No. 17-4222 (E.D. La.), Judge
Windy B. Vitter of the U.S. District Court for the Eastern District
of Louisiana grants:
a. BP's Daubert Motion to Exclude the Causation Testimony of
Plaintiff's Expert, Dr. Jerald Cook; and
b. the Defendants' Motion for Summary Judgment.
Before the Court is BP's Daubert Motion to Exclude the Causation
Testimony of Plaintiff's Expert, Dr. Jerald Cook filed by
Defendants BP Exploration & Production Inc., BP America Production
Co., and BP p.l.c. as well as the Defendants' Motion for Summary
Judgment. Halliburton Energy Services, Inc., Transocean Holdings,
LLC, Transocean Deepwater, Inc., and Transocean Offshore Deepwater
Drilling, Inc. (collectively "Defendants") have joined in both
motions. Waxman opposes both Motions. The Defendants have filed
Replies in support of their Motions and the Plaintiff has filed a
Supplemental Memorandum in Opposition to BP's Daubert Motion to
Exclude the Causation Testimony of Plaintiffs' Expert, Dr. Jerald
Cook.
The case arises from the Deepwater Horizon oil spill in the Gulf of
Mexico in 2010 and the subsequent cleanup efforts of the Gulf
Coast. On Jan. 11, 2013, United States District Judge Carl J.
Barbier, who presided over the multidistrict litigation arising out
of the Deepwater Horizon incident, approved the Deepwater Horizon
Medical Benefits Class Action Settlement Agreement (the "MSA").
However, certain individuals, referred to as "B3" plaintiffs,
either opted out of or were excluded from the MSA. Moore opted out
of the MSA and, accordingly, is a B3 plaintiff.
The Plaintiff filed this individual action against Defendants on
April 28, 2017 to recover for injuries allegedly sustained as a
result of the oil spill. For approximately 12 months in 2010 and
2011, he worked as a mechanic and cleanup worker, tasked with
cleaning up oil and oil-covered debris from the beaches and coastal
areas near Theodore, Alabama.
The Plaintiff alleges that the Defendants' negligence and
recklessness in both causing the Gulf oil spill and subsequently
failing to properly design and implement a clean-up response caused
him to suffer myriad injuries including abdominal pain, pelvic
mass, diastasis of abdomen, boils, abscess, shortness of breath,
COPD, asthma, wheezing, pneumonia, respiratory failure, fatigue,
dizziness, diarrhea, vomiting, abdominal pain, nausea, acute
bronchitis, upper respiratory infection, cough, sore throat,
sensorineural hearing loss, nosebleed, difficulty swallowing,
difficulty hearing, earache, ringing in ears, chest pain, joint
pain, elevated blood pressure, and headaches. Specifically, he
seeks to recover economic damages, personal injury damages --
including damages for past and future medical expenses and for pain
and suffering -- punitive damages, and attorneys' fees, costs, and
expenses
To help support his claims that exposure to the chemicals present
in the oil spilled by the Defendants caused his particular health
symptoms, the Plaintiff offers the report and testimony of Dr.
Jerald Cook. Dr. Cook is a retired Navy physician with expertise
specifically as an occupational and environmental physician. His
Report is not tailored directly to the Plaintiff's claims; rather,
Dr. Cook's generic causation Report has been utilized by numerous
B3 plaintiffs, including many plaintiffs currently before the Court
as well as in other cases before other sections of the Court.
Accordingly, Dr. Cook's Report pertains only to general causation
and not to specific causation.
The Defendants filed the instant Motion in limine and Motion for
Summary Judgment on Sept. 19, 2022. In their Motion in limine, the
Defendants contend that Dr. Cook's Report should be excluded from
testifying due to, inter alia, Dr. Cook's failure to identify the
harmful level of exposure capable of causing the Plaintiff's
particular injuries for each chemical that Plaintiff alleges to
have been exposed to. Because Dr. Cook should be excluded from
testifying, the Defendants argue, the Court should grant their
Motion for Summary Judgment as the Plaintiff is unable to establish
general causation through expert testimony, a necessary requirement
under controlling Circuit precedent. The Plaintiff opposes both
Motions, arguing that Dr. Cook's Report satisfies the Daubert
standards for reliability and relevancy and, therefore, that
summary judgment is inappropriate.
Judge Vitter explains that the burden of proof is on the B3
plaintiffs to prove that the legal cause of the claimed injury or
illness is exposure to oil or other chemicals used during the
response. To prove causation, the B3 plaintiffs are required to
provide reliable expert testimony. A plaintiff in such a case
cannot expect lay fact-finders to understand medical causation;
expert testimony is thus required to establish causation.
In the case, the Plaintiffs must provide reliable expert testimony
establishing the requisite level of exposure necessary to cause
each alleged physical harm. Accordingly, failure to properly
identify the level of exposure to a particular chemical at which
harmful effects occur necessarily renders a general causation
opinion to be unreliable and, thus, inadmissible.
Judge Vitter explains that the Court has previously considered the
June 21, 2022 version of Dr. Cook's Report offered the Plaintiff,
finding that the Report fails to meet the Daubert standards for
reliability and helpfulness to the trier of fact. For the same
reasons set forth in detail in that Order and Reasons, she
determines that the Plaintiff has failed in his burden of
establishing the reliability and relevance of his expert's report
and finds it appropriate to grant the Defendants' Motion in limine
to exclude Dr. Cook's Report. The Plaintiff accordingly lacks
expert testimony on general causation.
Without expert testimony, which is required to prove general
causation, Judge Vitter holds that the Plaintiff has failed to
demonstrate a genuine dispute of material fact regarding his claims
that his injuries were caused by exposure to oil. When a plaintiff
has no expert testimony to prove his medical diagnosis or causation
at trial, the plaintiff's suit may be dismissed at the summary
judgment stage. Thus, the Defendants' Motion for Summary Judgment
must be granted as they are entitled to judgment as a matter of law
due to the Plaintiff's failure to establish general causation.
For these reasons, Judge Vitter grants the Defendants' Daubert
Motion to Exclude the Causation Testimony of Plaintiff's Expert,
Dr. Jerald Cook; grants the Defendants' Motion for Summary
Judgment; and dismissed with prejudice the Plaintiff's claims
against the Defendants.
A full-text copy of the Court's Jan. 13, 2023 Order is available at
https://tinyurl.com/yjkwyjhk from Leagle.com.
BP EXPLORATION: Wins Bid for Summary Judgment in Beverly B3 Suit
----------------------------------------------------------------
In the case, CLEOPHUS BEVERLY v. BP EXPLORATION & PRODUCTION, INC.,
ET AL., SECTION: D (5), Civil Action No. No. 17-3482 (E.D. La.),
Judge Windy B. Vitter of the U.S. District Court for the Eastern
District of Louisiana grants:
a. BP's Daubert Motion to Exclude the Causation Testimony of
Plaintiff's Expert, Dr. Jerald Cook; and
b. the Defendants' Motion for Summary Judgment.
Before the Court is BP's Daubert Motion to Exclude the Causation
Testimony of Plaintiff's Expert, Dr. Jerald Cook filed by
Defendants BP Exploration & Production Inc., BP America Production
Co., and BP p.l.c. as well as the Defendants' Motion for Summary
Judgment. Halliburton Energy Services, Inc., Transocean Holdings,
LLC, Transocean Deepwater, Inc., and Transocean Offshore Deepwater
Drilling, Inc. (collectively "Defendants") have joined in both
motions. Beverly opposes both Motions. The Defendants have filed
Replies in support of their Motions and the Plaintiff has filed a
Supplemental Memorandum in Opposition to BP's Daubert Motion to
Exclude the Causation Testimony of Plaintiffs' Expert, Dr. Jerald
Cook.
The case arises from the Deepwater Horizon oil spill in the Gulf of
Mexico in 2010 and the subsequent cleanup efforts of the Gulf
Coast. On Jan. 11, 2013, United States District Judge Carl J.
Barbier, who presided over the multidistrict litigation arising out
of the Deepwater Horizon incident, approved the Deepwater Horizon
Medical Benefits Class Action Settlement Agreement (the "MSA").
However, certain individuals, referred to as "B3" plaintiffs,
either opted out of or were excluded from the MSA. Moore opted out
of the MSA and, accordingly, is a B3 plaintiff.
The Plaintiff filed this individual action against Defendants on
April 17, 2017 to recover for injuries allegedly sustained as a
result of the oil spill. For approximately 16 months in 2010 and
2011, he worked as a cleanup worker, tasked with, inter alia,
cleaning up oil and oil-covered debris from the beaches and coastal
areas in Pascagoula, Biloxi, Gulfport, and Bay St. Louis,
Mississippi.
The Plaintiff alleges that the Defendants' negligence and
recklessness in both causing the Gulf oil spill and subsequently
failing to properly design and implement a clean-up response caused
him to suffer myriad injuries including diarrhea, gastroenteritis,
colitis, abdominal pain, headache, nausea, shortness of breath,
asthma, wheezing, chest pain and tightness, tingling in feet,
allergic rhinitis, decreased sense of smell, facial pain or sinus
pain, nasal congestion, throat irritation, dizziness, eye
irritation, skin blistering, crusting, dryness, flaking, itching,
lesions, peeling, and scaling. Specifically, the Plaintiff seeks to
recover economic damages, personal injury damages -- including
damages for past and future medical expenses and for pain and
suffering -- punitive damages, and attorneys' fees, costs, and
expenses.
To help support his claims that exposure to the chemicals present
in the oil spilled by the Defendants caused his particular health
symptoms, the Plaintiff offers the report and testimony of Dr.
Jerald Cook. Dr. Cook is a retired Navy physician with expertise
specifically as an occupational and environmental physician. His
Report is not tailored directly to the Plaintiff's claims; rather,
Dr. Cook's generic causation Report has been utilized by numerous
B3 plaintiffs, including many plaintiffs currently before the Court
as well as in other cases before other sections of the Court.
Accordingly, Dr. Cook's Report pertains only to general causation
and not to specific causation.
The Defendants filed the instant Motion in limine and Motion for
Summary Judgment on Aug. 8, 2022. In their Motion in limine, the
Defendants contend that Dr. Cook's Report should be excluded from
testifying due to, inter alia, Dr. Cook's failure to identify the
harmful level of exposure capable of causing the Plaintiff's
particular injuries for each chemical that Plaintiff alleges to
have been exposed to. Because Dr. Cook should be excluded from
testifying, the Defendants argue, the Court should grant their
Motion for Summary Judgment as the Plaintiff is unable to establish
general causation through expert testimony, a necessary requirement
under controlling Circuit precedent. The Plaintiff opposes both
Motions, arguing that Dr. Cook's Report satisfies the Daubert
standards for reliability and relevancy and, therefore, that
summary judgment is inappropriate.
Judge Vitter explains that the burden of proof is on the B3
plaintiffs to prove that the legal cause of the claimed injury or
illness is exposure to oil or other chemicals used during the
response. To prove causation, the B3 plaintiffs are required to
provide reliable expert testimony. A plaintiff in such a case
cannot expect lay fact-finders to understand medical causation;
expert testimony is thus required to establish causation.
In the case, the Plaintiffs must provide reliable expert testimony
establishing the requisite level of exposure necessary to cause
each alleged physical harm. Accordingly, failure to properly
identify the level of exposure to a particular chemical at which
harmful effects occur necessarily renders a general causation
opinion to be unreliable and, thus, inadmissible.
Judge Vitter explains that the Court has previously considered the
June 21, 2022 version of Dr. Cook's Report offered by the
Plaintiff, finding that the Report fails to meet the Daubert
standards for reliability and helpfulness to the trier of fact. For
the same reasons set forth in detail in that Order and Reasons, she
determines that the Plaintiff has failed in his burden of
establishing the reliability and relevance of his expert's report
and finds it appropriate to grant the Defendants' Motion in limine
to exclude Dr. Cook's Report. The Plaintiff accordingly lacks
expert testimony on general causation.
Without expert testimony, which is required to prove general
causation, Judge Vitter holds that the Plaintiff has failed to
demonstrate a genuine dispute of material fact regarding her claims
that her injuries were caused by exposure to oil. When a plaintiff
has no expert testimony to prove his medical diagnosis or causation
at trial, the plaintiff's suit may be dismissed at the summary
judgment stage. Thus, the Defendants' Motion for Summary Judgment
must be granted as they are entitled to judgment as a matter of law
due to the Plaintiff's failure to establish general causation.
For these reasons, Judge Vitter grants the Defendants' Daubert
Motion to Exclude the Causation Testimony of Plaintiff's Expert,
Dr. Jerald Cook; grants the Defendants' Motion for Summary
Judgment; and dismissed with prejudice the Plaintiff's claims
against the Defendants.
A full-text copy of the Court's Jan. 13, 2023 Order is available at
https://tinyurl.com/4a8rfehw from Leagle.com.
BP EXPLORATION: Wins Bid for Summary Judgment in Binder B3 Suit
---------------------------------------------------------------
In the case, SAMMIE BINDER v. BP EXPLORATION & PRODUCTION, INC., ET
AL., SECTION: D (4), Civil Action No. No. 17-3636 (E.D. La.), Judge
Windy B. Vitter of the U.S. District Court for the Eastern District
of Louisiana grants:
a. BP's Daubert Motion to Exclude the Causation Testimony of
Plaintiff's Expert, Dr. Jerald Cook; and
b. the Defendants' Motion for Summary Judgment.
Before the Court is BP's Daubert Motion to Exclude the Causation
Testimony of Plaintiff's Expert, Dr. Jerald Cook filed by
Defendants BP Exploration & Production Inc., BP America Production
Co., and BP p.l.c. as well as the Defendants' Motion for Summary
Judgment. Halliburton Energy Services, Inc., Transocean Holdings,
LLC, Transocean Deepwater, Inc., and Transocean Offshore Deepwater
Drilling, Inc. (collectively "Defendants") have joined in both
motions. Binder opposes both Motions. The Defendants have filed
Replies in support of their Motions and the Plaintiff has filed a
Supplemental Memorandum in Opposition to BP's Daubert Motion to
Exclude the Causation Testimony of Plaintiffs' Expert, Dr. Jerald
Cook.
The case arises from the Deepwater Horizon oil spill in the Gulf of
Mexico in 2010 and the subsequent cleanup efforts of the Gulf
Coast. On Jan. 11, 2013, United States District Judge Carl J.
Barbier, who presided over the multidistrict litigation arising out
of the Deepwater Horizon incident, approved the Deepwater Horizon
Medical Benefits Class Action Settlement Agreement (the "MSA").
However, certain individuals, referred to as "B3" plaintiffs,
either opted out of or were excluded from the MSA. Moore opted out
of the MSA and, accordingly, is a B3 plaintiff.
The Plaintiff filed this individual action against the Defendants
on April 18, 2017 to recover for injuries allegedly sustained as a
result of the oil spill. For approximately nine months in 2010, the
Plaintiff worked as a cleanup worker, tasked with cleaning up oil
and oil-covered debris from the beaches and coastal areas in
Biloxi, Mississippi, Theodore and Dauphin Island, Alabama, and
Panama City, Florida.
The Plaintiff alleges that the Defendants' negligence and
recklessness in both causing the Gulf oil spill and subsequently
failing to properly design and implement a clean-up response caused
him to suffer myriad injuries including sore throat, cough,
nosebleed, congestion, nasal discharge, headache, blurred vision,
eye burning, nausea, stomach pain, gastrointestinal complaints,
vomiting, abdominal cramps, burning in chest, bronchospasm,
wheezing, shortness of breath, onset asthma, hemoptysis, COPD with
chronic bronchitis, renal calculi, sleep apnea, seizure, acne
vulgaris, boils, crusting, dryness, flaking, inflammation, redness,
swelling, itching, scaling, welts, and fatigue. Specifically, the
Plaintiff seeks to recover economic damages, personal injury
damages -- including damages for past and future medical expenses
and for pain and suffering -- punitive damages, and attorneys'
fees, costs, and expenses.
To help support his claims that exposure to the chemicals present
in the oil spilled by the Defendants caused his particular health
symptoms, the Plaintiff offers the report and testimony of Dr.
Jerald Cook. Dr. Cook is a retired Navy physician with expertise
specifically as an occupational and environmental physician. His
Report is not tailored directly to the Plaintiff's claims; rather,
Dr. Cook's generic causation Report has been utilized by numerous
B3 plaintiffs, including many plaintiffs currently before the Court
as well as in other cases before other sections of the Court.
Accordingly, Dr. Cook's Report pertains only to general causation
and not to specific causation.
The Defendants filed the instant Motion in limine and Motion for
Summary Judgment on Sept. 19, 2022. In their Motion in limine, the
Defendants contend that Dr. Cook's Report should be excluded from
testifying due to, inter alia, Dr. Cook's failure to identify the
harmful level of exposure capable of causing the Plaintiff's
particular injuries for each chemical that Plaintiff alleges to
have been exposed to. Because Dr. Cook should be excluded from
testifying, the Defendants argue, the Court should grant their
Motion for Summary Judgment as the Plaintiff is unable to establish
general causation through expert testimony, a necessary requirement
under controlling Circuit precedent. The Plaintiff opposes both
Motions, arguing that Dr. Cook's Report satisfies the Daubert
standards for reliability and relevancy and, therefore, that
summary judgment is inappropriate.
Judge Vitter explains that the burden of proof is on the B3
plaintiffs to prove that the legal cause of the claimed injury or
illness is exposure to oil or other chemicals used during the
response. To prove causation, the B3 plaintiffs are required to
provide reliable expert testimony. A plaintiff in such a case
cannot expect lay fact-finders to understand medical causation;
expert testimony is thus required to establish causation.
In the case, the Plaintiffs must provide reliable expert testimony
establishing the requisite level of exposure necessary to cause
each alleged physical harm. Accordingly, failure to properly
identify the level of exposure to a particular chemical at which
harmful effects occur necessarily renders a general causation
opinion to be unreliable and, thus, inadmissible.
Judge Vitter explains that the Court has previously considered the
June 21, 2022 version of Dr. Cook's Report offered the Plaintiff,
finding that the Report fails to meet the Daubert standards for
reliability and helpfulness to the trier of fact. For the same
reasons set forth in detail in that Order and Reasons, she
determines that the Plaintiff has failed in his burden of
establishing the reliability and relevance of his expert's report
and finds it appropriate to grant the Defendants' Motion in limine
to exclude Dr. Cook's Report. The Plaintiff accordingly lacks
expert testimony on general causation.
Without expert testimony, which is required to prove general
causation, Judge Vitter holds that the Plaintiff has failed to
demonstrate a genuine dispute of material fact regarding her claims
that her injuries were caused by exposure to oil. When a plaintiff
has no expert testimony to prove his medical diagnosis or causation
at trial, the plaintiff's suit may be dismissed at the summary
judgment stage. Thus, the Defendants' Motion for Summary Judgment
must be granted as they are entitled to judgment as a matter of law
due to the Plaintiff's failure to establish general causation.
For these reasons, Judge Vitter grants the Defendants' Daubert
Motion to Exclude the Causation Testimony of Plaintiff's Expert,
Dr. Jerald Cook; grants the Defendants' Motion for Summary
Judgment; and dismissed with prejudice the Plaintiff's claims
against the Defendants.
A full-text copy of the Court's Jan. 13, 2023 Order is available at
https://tinyurl.com/4yvw8vrv from Leagle.com.
BP EXPLORATION: Wins Bid for Summary Judgment in Greene B3 Suit
---------------------------------------------------------------
In the case, TIMOTHY GREENE v. BP EXPLORATION & PRODUCTION, INC.,
ET AL., SECTION: D (4), Civil Action No. No. 17-3997 (E.D. La.),
Judge Windy B. Vitter of the U.S. District Court for the Eastern
District of Louisiana grants:
a. BP's Daubert Motion to Exclude the Causation Testimony of
Plaintiff's Expert, Dr. Jerald Cook; and
b. the Defendants' Motion for Summary Judgment.
Before the Court is BP's Daubert Motion to Exclude the Causation
Testimony of Plaintiff's Expert, Dr. Jerald Cook filed by
Defendants BP Exploration & Production Inc., BP America Production
Co., and BP p.l.c. as well as the Defendants' Motion for Summary
Judgment. Halliburton Energy Services, Inc., Transocean Holdings,
LLC, Transocean Deepwater, Inc., and Transocean Offshore Deepwater
Drilling, Inc. (collectively "Defendants") have joined in both
motions. Greene opposes both Motions. The Defendants have filed
Replies in support of their Motions and the Plaintiff has filed a
Supplemental Memorandum in Opposition to BP's Daubert Motion to
Exclude the Causation Testimony of Plaintiffs' Expert, Dr. Jerald
Cook.
The case arises from the Deepwater Horizon oil spill in the Gulf of
Mexico in 2010 and the subsequent cleanup efforts of the Gulf
Coast. On Jan. 11, 2013, United States District Judge Carl J.
Barbier, who presided over the multidistrict litigation arising out
of the Deepwater Horizon incident, approved the Deepwater Horizon
Medical Benefits Class Action Settlement Agreement (the "MSA").
However, certain individuals, referred to as "B3" plaintiffs,
either opted out of or were excluded from the MSA. Moore opted out
of the MSA and, accordingly, is a B3 plaintiff.
The Plaintiff filed this individual action against Defendants on
April 25, 2017 to recover for injuries allegedly sustained as a
result of the oil spill. For approximately six months in 2010, he
worked as both an onshore and offshore cleanup worker, tasked with
cleaning up oil and oil-covered debris from the beaches and coastal
areas in Hopedale, Louisiana, Gulfport and Biloxi, Mississippi, and
Loxely, Alabama.
The Plaintiff alleges that the Defendants' negligence and
recklessness in both causing the Gulf oil spill and subsequently
failing to properly design and implement a clean-up response caused
him to suffer myriad injuries including skin irritation, itching,
rashes, severe headaches, sleep disturbance, profuse perspiration,
mood swings, respiratory symptoms, shortness of breath, chest pain,
restlessness, cold sweats, fatigue, diarrhea, migraines, nausea,
eating problems, and dizziness. Specifically, he seeks to recover
economic damages, personal injury damages -- including damages for
past and future medical expenses and for pain and suffering --
punitive damages, and attorneys' fees, costs, and expenses.
To help support his claims that exposure to the chemicals present
in the oil spilled by the Defendants caused his particular health
symptoms, the Plaintiff offers the report and testimony of Dr.
Jerald Cook. Dr. Cook is a retired Navy physician with expertise
specifically as an occupational and environmental physician. His
Report is not tailored directly to the Plaintiff's claims; rather,
Dr. Cook's generic causation Report has been utilized by numerous
B3 plaintiffs, including many plaintiffs currently before the Court
as well as in other cases before other sections of the Court.
Accordingly, Dr. Cook's Report pertains only to general causation
and not to specific causation.
The Defendants filed the instant Motion in limine and Motion for
Summary Judgment on Sept. 19, 2022. In their Motion in limine, the
Defendants contend that Dr. Cook's Report should be excluded from
testifying due to, inter alia, Dr. Cook's failure to identify the
harmful level of exposure capable of causing the Plaintiff's
particular injuries for each chemical that Plaintiff alleges to
have been exposed to. Because Dr. Cook should be excluded from
testifying, the Defendants argue, the Court should grant their
Motion for Summary Judgment as the Plaintiff is unable to establish
general causation through expert testimony, a necessary requirement
under controlling Circuit precedent. The Plaintiff opposes both
Motions, arguing that Dr. Cook's Report satisfies the Daubert
standards for reliability and relevancy and, therefore, that
summary judgment is inappropriate.
Judge Vitter explains that the burden of proof is on the B3
plaintiffs to prove that the legal cause of the claimed injury or
illness is exposure to oil or other chemicals used during the
response. To prove causation, the B3 plaintiffs are required to
provide reliable expert testimony. A plaintiff in such a case
cannot expect lay fact-finders to understand medical causation;
expert testimony is thus required to establish causation.
In the case, the Plaintiffs must provide reliable expert testimony
establishing the requisite level of exposure necessary to cause
each alleged physical harm. Accordingly, failure to properly
identify the level of exposure to a particular chemical at which
harmful effects occur necessarily renders a general causation
opinion to be unreliable and, thus, inadmissible.
Judge Vitter explains that the Court has previously considered the
June 21, 2022 version of Dr. Cook's Report offered the Plaintiff,
finding that the Report fails to meet the Daubert standards for
reliability and helpfulness to the trier of fact. For the same
reasons set forth in detail in that Order and Reasons, she
determines that the Plaintiff has failed in his burden of
establishing the reliability and relevance of his expert's report
and finds it appropriate to grant the Defendants' Motion in limine
to exclude Dr. Cook's Report. The Plaintiff accordingly lacks
expert testimony on general causation.
Without expert testimony, which is required to prove general
causation, Judge Vitter holds that the Plaintiff has failed to
demonstrate a genuine dispute of material fact regarding his claims
that his injuries were caused by exposure to oil. When a plaintiff
has no expert testimony to prove his medical diagnosis or causation
at trial, the plaintiff's suit may be dismissed at the summary
judgment stage. Thus, the Defendants' Motion for Summary Judgment
must be granted as they are entitled to judgment as a matter of law
due to the Plaintiff's failure to establish general causation.
For these reasons, Judge Vitter grants the Defendants' Daubert
Motion to Exclude the Causation Testimony of Plaintiff's Expert,
Dr. Jerald Cook; grants the Defendants' Motion for Summary
Judgment; and dismissed with prejudice the Plaintiff's claims
against the Defendants.
A full-text copy of the Court's Jan. 13, 2023 Order is available at
https://tinyurl.com/mshv9sju from Leagle.com.
BURT'S BEES INC: Lester Suit Removed to S.D. Illinois
-----------------------------------------------------
The case styled as Tiffany Lester, individually and on behalf of
all others similarly situated v. Burt's Bees, Inc., Case No.
2022LA001049 was removed from the Illinois Third Judicial Circuit,
Madison County, to the U.S. District Court for the Southern
District of Illinois on Jan. 17, 2023.
The District Court Clerk assigned Case No. 3:23-cv-00138-SMY to the
proceeding.
The nature suit is stated as Other Fraud.
Burt's Bees -- https://www.burtsbees.com/ -- offers natural
personal care products.[BN]
The Plaintiff is represented by:
Kevin P. Green, Esq.
Richard S. Cornfeld, Esq.
Thomas C. Horscroft, Esq.
GOLDENBERG HELLER & ANTOGNOLI, P.C.
2227 South State Route 157
P.O. Box 959
Edwardsville, IL 62025
Phone: (618) 656-5150
Fax: (618) 656-6230
Email: kevin@ghalaw.com
rick@ghalaw.com
thorscroft@ghalaw.com
- and -
Daniel Scott Levy, Esq.
LAW OFFICE OF RICHARD S. CORNFELD, LLC
1010 Market Street, Suite 1645
St. Louis, MO 63101
Phone: (314) 241-5799
Fax: (314) 241-5788
Email: daniel@ghalaw.com
The Defendant is represented by:
P. Russell Perdew, Esq.
LOCKE LORD LLP
111 South Wacker Drive, Suite 4100
Chicago, IL 60606-4410
Phone: (312) 443-1712
Fax: (312) 896-6712
Email: rperdew@lockelord.com
CANADA: Military Cadet Program Sexual Abuse Class Action Pending
----------------------------------------------------------------
Richard Raycraft, writing for CBC News, reports that a lawyer and
veteran representing former cadets in a class-action lawsuit says
the Canadian cadet program, run by the Canadian Armed Forces (CAF),
is grappling with the same sexual misconduct issues as the
military.
Michael Blois, a partner at the Toronto personal injury law firm
Diamond & Diamond, said plaintiffs have described a culture in the
cadet program that includes grooming, rampant sexual harassment and
innuendo, and a lack of follow-up within units and summer camps
when cadets have raised sexual misconduct claims with superiors.
Blois and his colleagues filed a $300 million class-action lawsuit
last year. In the statement of claim, they said the federal
government has failed when it comes to "systemic sexual assault,
sexual harassment and gender-based discrimination" in the cadet
program. None of the allegations have been proven in court.
Cadets, who are aged 12 to 18, are not CAF members but CAF members
supervise the program. The most senior cadet instructors are
commissioned officers in the military's reserve force, and CAF
members often participate in cadet training, especially at summer
camps. The Canadian Cadet Organizations (CCO) is the body formally
responsible for the cadet program.
"If you have a sexualized, discriminatory environment within the
Canadian Forces, without a doubt it's going to leak into the cadet
organization," Blois told CBC News.
"There is overlap between some members of the Canadian Forces and
cadet units, either as volunteers or within the structure of the
training . . . especially at the summertime in the different
camps."
The most recent statistics DND would provide are from a 2020
military police report, which shows there were 257 "founded"
incidents of sexual abuse in cadet units and camps over a four-year
period from 2016 to 2019. "Founded" means law enforcement had
enough evidence to substantiate that the incidents occurred.
Of the 257 incidents, military police classified 215 as sexual
assaults, 19 as sexual offences against children and 23 as other
sexual-related offences.
The cadet program's purpose is to "help develop skills that will
help youth transition into adulthood," the Department of National
Defence (DND) says on its website
CAF said in response to CBC inquiries that the cadet program
consists of 46,000 youth and over 8,800 military and civilian
members. Approximately 16,000 cadets attended summer cadet training
centres in 2019, but in-person summer training was cancelled due to
the pandemic in 2020 and 2021. Around 3,000 cadets attended summer
training centres in 2022, CAF said.
The cadet program is not meant to streamline cadets into the
military. But Blois, a Canadian Army veteran who spent 11 years in
the CAF, said sexual misconduct issues in the cadet program may
deter cadets from pursuing a military career.
"If they are a victim, that's probably steered them away, and
that's a real shame," he said.
The military is struggling to meet its recruiting targets. Chief of
the Defence Staff Gen. Wayne Eyre estimates the CAF is short 10,000
regular force members.
Several high-ranking officers in the military are facing
allegations of sexual misconduct, and a report last year from
former Supreme Court justice Louise Arbour called for changes in
the CAF's culture and practices to address the issue.
Blois said sexual misconduct in the cadets won't improve until the
CAF makes changes.
"Without a wholesale culture change in that regard, there's going
to be no change really for the cadets," he said.
Hilary Lockhart, a representative plaintiff in the class action,
alleges a cadet instructor groomed her after she joined the cadets
in 2008 at age 14. The class-action statement of claim said
Lockhart reported the instructor's behaviour to a superior, but the
cadets took no further action.
After Hilary's mother found explicit texts from the instructor on
Hilary's phone, she reported them to the police. Police later
charged the instructor, who was convicted.
"I never thought that the cadets program would be the worst thing
to ever happen to me and my family," Lockhart said in a news
conference last year, which was posted to YouTube.
Lockhart called for more transparency on sexual misconduct in the
cadets.
"The fact that this dark history in the program is not divulged to
parents is extremely negligent, and, quite frankly, irresponsible,"
she said.
A DND spokesperson said it cannot comment on ongoing litigation.
Sexual misconduct 'not tolerated' -- CAF spokesperson
Maj. Jenn Jackson, the senior public affairs officer for the cadets
and Junior Canadian Rangers, said the protection, safety and
welfare of cadets is the program's top priority.
"We do not tolerate sexual misconduct involving cadets, their
instructors, or anyone involved in the cadet program, and this
includes not only unwanted physical contact, but also extends to
comments, behaviours, all sexual contact involving minors and
written text," Jackson said in an email statement.
Jackson said any potential criminal offence is reported to police
and the alleged offender is suspended from cadet activities pending
the outcome.
"Cadets are taught that unwanted sexual contact of any kind is
unacceptable, and they are encouraged to report any incidents
regardless of whether the offender is a peer or superior," Jackson
said.
"Counselling, chaplain, police, instructors and other resources are
available to cadets who have experienced unwanted sexual
touching."
Jackson added that adults working with cadets are required to go
through a number of screening processes -- including a police
records check -- every five years. The program also requires that
adults go through training to identify and address grooming and
luring behaviour, sexual harassment and discriminatory behaviour.
Expert says hierarchical institutions vulnerable to abuse
Dr. Michael Seto, a psychologist and Forensic Research Director at
the Royal Ottawa Healthcare Group, said he's not surprised at the
amount of sexual misconduct in the cadets. Seto compared the
problem with reports about the culture in junior hockey and child
sexual abuse controversies in certain religious organizations.
Seto said that institutions with strong hierarchies -- including
adult supervision of children -- can be prone to sexual abuse.
"We know that when there's those kinds of hierarchies in place, it
can potentially increase the likelihood of this kind of behaviour,"
Seto told CBC News.
Victims and witnesses may also be discouraged from reporting sexual
misconduct, Seto said.
"If they disclose it, they might be less likely to be believed.
They -- quite rightly -- might believe that there's
repercussions if they do or say anything," he said.
Seto said there are ways the cadet program could address the issue.
They include establishing clear and accessible reporting processes
with appropriate follow-up action, better bystander training and a
system that ensures more than one adult is present with cadets at
all times.
Blois said he hopes change will start with the cadet leadership.
"I think that clouds a lot of these young cadets views on what they
should do or what's appropriate, what's right or what's wrong," he
said.
"Because the person who's either assaulting them or grooming them .
. . is an authority figure that they look up to and are taught is
an ethical, reasonable, right person because of their rank or their
position." [GN]
CAR TOYS INC: Karroll Sues Over Failure to Provide Advance Notice
-----------------------------------------------------------------
Jason Karroll, on behalf of himself and all other similarly
situated v. CAR TOYS, INC. and JOHN DOES 1-10, Case No.
6:23-cv-00223-DCC (D.S.C., Jan. 17, 2023), is brought against the
Defendant challenging the Defendant's violation of the federal
Worker Adjustment and Retraining Notification Act (the "WARN
Act").
The Plaintiff was terminated on December 5, 2022 when the Wireless
Advocates, LLC ("Wireless Advocates") surprisingly ceased all
operations. Dan Brettler, CEO of Wireless Advocates and Car Toys,
held a conference call on or about December 5, 2022, in which he
announced that all employees of Wireless Advocates were terminated,
effective immediately. The Plaintiff, like approximately 1800 other
Wireless Advocates employees, received this communication on
December 5, 2022, stating that he was being laid off, effective
immediately. Car Toys did not give 60 days advance written notice
to the terminated employees, as required by the federal WARN Act.
Wireless Advocates and Car Toys amount to a single employer for
purposes of the WARN Act, says the complaint.
The Plaintiff worked for the Wireless Advocates, LLC prior to his
termination on December 5, 2022.
The Defendant jointly maintained, owned, and operated multiple
kiosks throughout the country.[BN]
The Plaintiff is represented by:
S. Kirkpatrick Morgan, Esq.
Charles T. Slaughter, Esq.
MORGAN LITIGATION GROUP, LLC
135 East Main Street
Post Office Box 1256 (29071)
Lexington, SC 29072
Phone: (803) 359-6194
Facsimile: (803) 957-4584
Email: km@morganlitigation.com
chuck@morganlitigation.com
- and -
William "Jack" Simpson, Esq.
LANGSTON & LOTT, PLLC
100 South Main Street
Post Office Box 382
Booneville, MS 38829-0382
Phone: (662) 728-9733
Facsimile: (662) 728-1992
Email: jsimpson@langstonlott.com
CODY ASKINS: Elzen TCPA Suit Transferred to W.D. Missouri
---------------------------------------------------------
The case styled as David Van Elzen, individually and on behalf of
all others similarly situated v. Cody Askins LLC, 8 Percent Nation
LLC, Cody Askins, Case No. 1:22-cv-00840 was transferred from the
U.S. District Court for the Eastern District of Wisconsin, to the
U.S. District Court for the Western District of Missouri on Jan.
17, 2023.
The District Court Clerk assigned Case No. 4:23-cv-00037-JAM to the
proceeding.
The lawsuit is brought over alleged violation of the Telephone
Consumer Protection Act for Restrictions of Use of Telephone
Equipment.
Cody Askins -- https://codyaskins.com/ -- covers training for
insurance agents and many different sales-related topics.[BN]
The Plaintiff is represented by:
Avi R. Kaufman, Esq.
KAUFMAN P.A.
237 S Dixie Hwy, 4th Floor
Coral Gables, FL 33133
Phone: (305) 469-5881
Email: kaufman@kaufmanpa.com
- and -
Stefan Coleman, Esq.
201 S. Biscayne Blvd., 28 Floor
Miami, FL 33131
Phone: (877) 333-9427
Email: law@stefancoleman.com
The Defendants are represented by:
Bart T. Murphy, Esq.
ICE MILLER, LLP
2300 Cabot Dr-Ste 455
Lisle, IL 60532
Phone: (630) 955-6392
Fax: (630) 955-0662
Email: bart.murphy@icemiller.com
CORRECTIONS CORP: Tardy's Bid to Intervene in Grae Suit Denied
--------------------------------------------------------------
The U.S. Court of Appeals for the Sixth Circuit denies Eddie
Tardy's motions to intervene in the case, NIKKI BOLLINGER GRAE, et
al., Plaintiffs v. CORRECTIONS CORPORATION OF AMERICA, nka
CoreCivic; DAMON T. HININGER; DAVID M. GARFINKLE; TODD J.
MULLENGER; HARLEY G. LAPPIN, Director, Defendants-Appellees, MARIE
NEWBY, Intervenor-Appellant, EDDIE TARDY, Proposed Intervenor, Case
No. 22-5312 (6th Cir.).
What started as a securities-fraud action against Corrections
Corporation of America (now known as CoreCivic) has turned into a
quest for documents. Tardy seeks to intervene and unseal documents
that CoreCivic produced during discovery.
CoreCivic operates private prisons. Years ago, the company's
stockholders brought a class action alleging securities fraud. The
company settled that suit, and the district court entered final
judgment. The case remained dormant until Marie Newby moved to
intervene three months later. Newby believed that documents
produced in the securities action would help establish CoreCivic's
responsibility for the death of her son in one of its prisons. The
district court unsealed most, but not all, of the documents Newby
sought. She appealed, but before the Sixth Circuit could decide her
case, she settled with CoreCivic and moved to voluntarily dismiss
her appeal. At the same time, Tardy moved to intervene in this
appeal, seeking permission to carry on in Newby's stead.
Like Newby, Tardy had a son who died in a CoreCivic prison. But
unlike Newby, Tardy waived any claim that the denial of documents
in the action hinders his ability to litigate his separate suit
against CoreCivic for the death of his son. In fact, at oral
argument, Tardy conceded that he hasn't suffered any adverse
effects from the denial of documents. Instead, he seeks to
vindicate the public's right of access to judicial records.
The Sixth Circuit must decide whether Tardy has standing to
intervene on the public's behalf, having repeatedly disclaimed any
need for the documents himself. It finds that a chorus of precedent
all sings the same tune: to have standing, litigants must have
suffered adverse effects from the denial of information.
That requirement dooms Tardy's case, the Sixth Circuit finds. At
oral argument, Tardy told the Court he had not suffered any adverse
effects. In fact, he admitted that if he were required to allege an
adverse effect, he would lose. The Sixth Circuit takes him at his
word. Therefore, he does not have standing to intervene in this
appeal.
Tardy contends that the Sixth Circuit should unseal the documents
even if he doesn't have standing. In making this request, he
invokes the Sixth Circuit's caselaw permitting a court to sua
sponte consider whether to unseal documents. In Shane Grp., Inc. v.
Blue Cross Blue Shield of Mich., 825 F.3d 299, 306-07 (6th Cir.
2016), the Sixth Circuit holds that a court's obligation to keep
its records open for public inspection is not conditioned on an
objection from anybody.
The Sixth Circuit holds that Tardy misapplies that caselaw. It may
unseal documents on its own motion during an ongoing case. But the
underlying case is no longer ongoing, and the Sixth Circuit has
never held that courts possess the power to unseal documents
outside a justiciable case or controversy. That would undermine the
separation-of-powers principles that standing protects.
Accordingly, Tardy's motions to intervene and file a reply brief
are denied. Newby's motion to dismiss the appeal is granted.
A full-text copy of the Court's Jan. 13, 2023 Order is available at
https://tinyurl.com/2uek2xze from Leagle.com.
ARGUED: Daniel A. Horwitz -- daniel@horwitz.law -- HORWITZ LAW,
PLLC, Nashville, Tennessee, for Appellant Marie Newby and proposed
intervenor Eddie Tardy.
Roman Martinez -- roman.martinez@lw.com -- LATHAM & WATKINS LLP,
Washington, D.C., for the Appellees.
ON BRIEF AND MOTIONS: Daniel A. Horwitz, HORWITZ LAW, PLLC, Melissa
K. Dix -- melissa@horwitz.law -- Nashville, Tennessee, for
Appellant Marie Newby and proposed intervenor Eddie Tardy.
ON APPELLEE BRIEF: Brian T. Glennon -- brian.glennon@lw.com -- Eric
C. Pettis -- eric.pettis@lw.com -- Michael A. Galdes --
michael.galdes@lw.com -- LATHAM & WATKINS LLP, Los Angeles,
California, Steven A. Riley -- sriley@rjfirm.com -- Milton S.
McGee, III, RILEY & JACOBSON, PLC, Nashville, Tennessee, for the
Appellees.
Paul R. McAdoo, REPORTERS COMMITTEE FOR FREEDOM OF THE PRESS,
Washington, D.C., for Amicus Curiae.
CYTODYN INC: Faces Shareholder Suit Over COVID Drug Viability
--------------------------------------------------------------
Cytodyn Inc. disclosed in its Form 10-Q report for the quarterly
period ended November 30, 2022, filed with the Securities and
Exchange Commission on January 9, 2023, that in March 17, 2021, a
stockholder filed a putative class-action lawsuit in the U.S.
District court for the Western District of Washington against the
company and certain former officers.
The complaint generally alleges the defendants made false and
misleading statements regarding the viability of their drug
"leronlimab" as a potential treatment for COVID-19.
On April 9, 2021, a second stockholder filed a similar putative
class action lawsuit in the same court, which the plaintiff
voluntarily dismissed without prejudice on July 23, 2021. On August
9, 2021, the court appointed lead plaintiffs for the March 17, 2021
lawsuit.
On December 21, 2021, lead plaintiffs filed an amended complaint,
which is brought on behalf of an alleged class of those who
purchased the company's common stock between March 27, 2020 and May
17, 2021. The amended complaint generally alleges that the
defendants violated Sections 10(b) and/or 20(a) of the Securities
Exchange Act of 1934 and Rule 10b-5 promulgated thereunder by
making purportedly false or misleading statements concerning, among
other things, the safety and efficacy of leronlimab as a potential
treatment for COVID-19, the company's CD10 and CD12 clinical trials
and its HIV BLA.
The amended complaint also alleges that the individual defendants
violated Section 20A of the Exchange Act by selling shares of the
company's common stock purportedly while in possession of material
nonpublic information. The amended complaint seeks, among other
relief, a ruling that the case may proceed as a class action and
unspecified damages and attorneys' fees and costs.
On February 25, 2022, the defendants filed a motion to dismiss the
amended complaint. On June 24, 2022, lead plaintiffs filed a second
amended complaint. The second amended complaint is brought on
behalf of an alleged class of those who purchased the company's
common stock between March 27, 2020 and March 30, 2022, makes
similar allegations, names the same defendants, and asserts the
same claims as the prior complaint, adds a claim for alleged
violation of Section 10(b) of the Exchange Act and Rule 10b-5(a)
and (c) promulgated thereunder, and seeks the same relief as the
prior complaint.
Cytodyn Inc. is a clinical-stage biotechnology company based in
Washington.
DANGO PRODUCTS: Kaye Sues Over Automated Telephonic Sales Calls
---------------------------------------------------------------
Zachary Kaye, individually and on behalf of all others similarly
situated v. DANGO PRODUCTS, LLC, Case No. 5:23-cv-00206-NC (N.D.
Cal., Jan. 17, 2023), is brought for legal and equitable remedies
resulting from the illegal actions of the Defendant in sending
automated telephonic sales calls, in the form of text messages, to
his cellular telephone and the cellular telephones of numerous
other individuals across Florida, in clear violation of the Florida
Telephone Solicitation Act.
The Defendant utilized an "automated system for the selection or
dialing of telephone numbers" to transmit the subject text messages
to the Plaintiff's Number because such messages were sent from
telephone numbers used to message consumers en masse; because
Defendant's dialing equipment includes features substantially
similar to a predictive dialer, inasmuch as it is capable of making
numerous calls or texts simultaneously; and because the hardware
and software used by the Defendant to send such messages have the
capacity to both select numbers to be dialed and to dial such
numbers in an automated fashion.
Because the Plaintiff's cellular phone alerts him whenever he
receives a text message, each telephonic sales call by or on behalf
of Defendant to the Plaintiff's Number invaded the Plaintiff's
privacy and intruded upon Plaintiff's seclusion upon receipt. The
Plaintiff has never provided his prior "prior express written
consent" to Defendant or any other party acting on Defendant's
behalf to authorize the subject telephonic sales calls to the
Number by means of an "automated system for the selection or
dialing of telephone numbers" within the meaning of the FTSA, says
the complaint.
The Plaintiff is a resident and citizen of Florida.
Dango Products, LLC is a retailer of wallets and wallet
accessories.[BN]
The Plaintiff is represented by:
Frank S. Hedin, Esq.
HEDIN HALL LLP
1395 Brickell Avenue, Suite 1140
Miami, FL 33131
Phone: + 1 (305) 357-2107
Email: fhedin@hedinhall.com
DEN-TEX CENTRAL: Fails to Provide Proper OT Wages, Barranco Says
----------------------------------------------------------------
CHRISTINA BARRANCO, individually and on behalf of all others
similarly situated, Plaintiff v. DEN-TEX CENTRAL, INC., Defendant,
Case No. 5:23-cv-05010-PKH (W.D. Ark., January 10, 2023) is a class
action brought by the Plaintiff 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
Defendant's failure to pay Plaintiff and other hourly-paid
employees lawful overtime compensation for hours worked in excess
of 40 hours per week.
Plaintiff Barranco was employed as an hourly-paid employee within
the three years relevant to this lawsuit at Defendant Denny's
restaurant in Bentonville, Arkansas.
Den-Tex Central, Inc. owns and operates Denny's diner-style
restaurants at various locations in Arkansas, including the
location in Bentonville, Arkansas.[BN]
The Plaintiff is represented by:
Chris Burks, Esq.
Stewart Whaley, Esq.
WH LAW | WE HELP
1 Riverfront Pl., Suite 745
North Little Rock, AR 72114
Telephone: (501) 891-6000
E-mail: chris@wh.law
stewart@wh.law
DR. BERG HOLDINGS: Scheibe Files Suit in S.D. California
--------------------------------------------------------
A class action lawsuit has been filed against Dr. Berg Holdings,
LLC. The case is styled as Jacob Scheibe, individually and on
behalf of all those similarly situated v. Dr. Berg Holdings, LLC
doing business as: Dr. Berg Nutritionals, Case No.
3:23-cv-00084-DMS-JLB (S.D. Cal., Jan. 17, 2023).
The nature if suit is stated as Other Contract.
Dr. Berg Holdings, LLC doing business as Dr. Berg Nutritionals --
https://www.drberg.com/ -- is a health educator specializing in
weight loss through nutritional and natural methods such as the
keto diet plan and intermittent fasting.[BN]
The Plaintiff is represented by:
Charles C. Weller, Esq.
11412 Corley Court
San Diego, CA 92126
Phone: (858) 414-7465
Fax: (858) 300-5137
Email: legal@cweller.com
ELEVANCE HEALTH: Landis Sues to Recover Overtime Pay
----------------------------------------------------
Kathy Landis, on behalf of herself and all others similarly
situated v. THE ELEVANCE HEALTH COMPANIES, INC. f/k/a THE ANTHEM
COMPANIES, INC. and AMERIGROUP CORPORATION, Case No.
4:23-cv-00005-M (E.D.N.C., Jan. 17, 2023), is brought to recover
overtime pay from the Defendants in violations of the Fair Labor
Standards Act.
The Plaintiff work more than 40 hours in a workweek but are not
paid an overtime premium for their overtime hours. As a result of
the Defendants' willful and illegal pay practices, the Plaintiff
and those similarly situated were deprived of overtime compensation
for their hours worked in violation of federal law, says the
complaint.
The Plaintiff was employed by the Defendants as a Medical
Management Nurse I from April 2021 to June 2022, where she worked
remotely from her home in Craven County, North Carolina.
Elevance Health, Inc. f/k/a Anthem, Inc. is a multi-line health
insurance company that provides managed care programs and related
services.[BN]
The Plaintiff is represented by:
William Barrett, Esq.
Joshua M. Krasner, Esq.
BARRETT LAW OFFICES, PLLC
5 West Hargett St., Suite 910
Raleigh, NC 27601
Phone: (919) 999-2799
Email: wbarrett@barrettlawoffices.com
jkrasner@barrettlawoffices.com
- and -
Rachhana T. Srey, Esq.
H. Clara Coleman, Esq.
NICHOLS KASTER, PLLP
4700 IDS Center
80 South Eighth Street
Minneapolis, MN 55402
Phone: (612) 256-3200
Facsimile: (612) 338-4878
Email: srey@nka.com
ccoleman@nka.com
ELON PROPERTY: $500K Class Deal in Yost Suit Wins Final Approval
----------------------------------------------------------------
In the case, PATRICIA YOST, an individual, on behalf of herself and
all others similarly situated, Plaintiff v. ELON PROPERTY
MANAGEMENT COMPANY-LEXFORD POOLS 1/3, LLC, a Delaware limited
liability company, and ELON PROPERTY MANAGEMENT, LLC, a Delaware
limited liability company, doing business together as "Elon
Property Management," and REAL PAY, INC., and Illinois corporation
Defendants, Civil Action No. ELH-21-1520 (D. Md.), Judge Ellen L.
Hollander of the U.S. District Court for the District of Maryland
grants the Motion for Final Approval of Class Action Settlement
Agreement and the Motion for Award of Attorneys' Fees and Costs and
Approval of Class Representative Service Award.
The Plaintiff filed a Complaint against Defendants Elon Property
Management Company-Lexford Pools 1/3, LLC and Elon Property
Management, LLC (collectively, "Elon") on June 18, 2021, seeking
class-wide relief, inter alia, for violation of 15 U.S.C. Section
1679 et seq., commonly known as the "Federal Credit Repair
Organizations Act" ("CROA" or the "Act"). The suit concerns credit
amelioration fees charged to Elon tenants as part of their rent
payments. The Plaintiff subsequently filed an Amended Complaint,
adding Real Pay, Inc., Elon's "business partner," as a Defendant.
However, Real Pay was never served.
The Plaintiff alleges that it was the policy and practice of the
Defendants to provide credit repair services subject to CROA
without providing the written disclosures mandated by 15 U.S.C.
Section 1679c before collecting monies for credit repair services,
and to have consumers enter into contracts for credit repair
services without the mandated contract terms and provisions
required under 15 U.S.C. Section 1679d and e. Further, the
Defendants allegedly made false statements with respect to a
tradeline to a consumer reporting agency in contravention of 15
U.S.C. Section 1679b(a)(1) (A). Both the initial Complaint and the
Amended Complaint contain three counts: violation of the Act (Count
1); declaratory and injunctive relief (Count 2); and unjust
enrichment (Count 3).
On July 5, 2022, the Plaintiff filed an "Unopposed Motion for
Preliminary Approval of Class Action Settlement," seeking, inter
alia, preliminary certification and approval of the proposed class
action settlement. By Order of July 11, 2022, Judge Catherine C.
Blake, to whom the case was then assigned, granted preliminary
approval of the proposed settlement and directed notice to be
issued to the class members. That Order was subsequently amended by
Order of July 29, 2022, providing for short form class notice and
enlargement of time to complete notice mail-out. In addition, a
class action fairness hearing was scheduled for Jan. 13, 2023.
Now pending is the Motion for Final Approval of Class Action
Settlement Agreement. Also pending is the "Motion for Award of
Attorneys' Fees and Costs and Approval of Class Representative
Service Award."
No objections were lodged to the motions. And, the class action
fairness hearing was held on Jan. 13, 2023, as scheduled. Ms. Yost
was present. But, as the record reflects, no interested parties or
members of the public appeared at the hearing.
The Settlement Agreement defines the "Settlement Class" as "all
persons in the United States who, in the four (4) years preceding
the filing of the instant Action, were Elon's tenants and paid
Rental Payment Reporting Fees directly to Elon on their own
behalf." Therefore, the Class pertains to persons who were tenants
from June 18, 2017, to June 18, 2021.
Under the Settlement Agreement, the Defendants will pay a total of
$500,000. This represents the aggregate of "Rent Credit to Current
Tenant Class Members"; the "Settlement Checks to Former and
Post-Approval Former Tenants"; the "Class Representative Service
Award"; the "Attorney's Fees and Expense Award"; and the
"Settlement Administration Fee." To the extent that any funds
remain, funds will revert to Elon via check delivered to Elon by
the American Legal Claim Services, LLC. Significantly, Elon has
agreed to cease the practice of collecting fees from tenants with
respect to rental payment reporting.
As noted, pursuant to the Preliminary Approval Order, as
subsequently amended on July 29, 2022, the Court approved the form
of the notices to the Settlement Class and further directed the
Settlement Administrator to mail notices by first class mail to
class members at their last known address.
On July 21, 2022, the Settlement Administrator received the mailing
list from the counsel for the Defendants containing 22,046 records
with street addresses, and the subclass of each class member:
current tenant or former tenant. A total of 320 duplicates were
identified and, after the duplicates were removed, the final Class
List contained 21,726 class members. On Aug. 12, 2022, the
Settlement Administrator mailed the postcard notice to 21,726 class
members. As of Dec. 26, 2022, the Settlement Administrator received
40 timely requests for exclusion. Notably, however, no objections
to the settlement were received.
Having reviewed the Motion, the Settlement Agreement, the
affidavits of class counsel, and all documents filed in connection
with the proposed settlement, Judge Hollander is persuaded that the
requirements of Fed R. Civ. P. 23(e), Rule 23(a), and Rule 23(b)(3)
are satisfied. Therefore, she certifies the proposed class, and as
it is described in the Settlement Agreement. For these reasons, and
because no objections have been made, Judge Hollander grants the
Motion for Final Approval of Class Action Settlement Agreement.
Next, Judge Hollander considers the Fee Motion, which includes a
request for a service award for the named Plaintiff. The Class
counsel has asked for approval of an award of attorneys' fees in
the amount of $166,650, plus expenses in the amount of $750. The
Settlement Fund is valued at $500,000. Thus, counsel's fee request
of $166,650 is equal to 33% of the recovery. The request is
uncontested by the Defendants. And, no class members have
objected.
Judge Hollander grants the Fee Motion for attorneys' fees in the
amount of $166,650 and expenses in the amount of $7,500, and for a
service award of $5,000 to Ms. Yost. In her view, the counsel's
requested fee award and the proposed service award for the
Plaintiff are reasonable. These amounts will be paid by the
Defendants from the Settlement Fund, in addition to the other
settlement benefits.
An Order follows.
A full-text copy of the Court's Jan. 13, 2023 Memorandum Opinion is
available at https://tinyurl.com/5n99tdh4 from Leagle.com.
ENVIRONMENTAL LANDFILL: Faces Class Action Over Landfill Fire
--------------------------------------------------------------
Zoe McDonald of Birminghamwatch.org reports a pair of Trussville
residents have filed a lawsuit over the landfill fire that's been
burning for almost two months near Moody. The suit alleges, among
other claims, the owners and operators of Environmental Landfill
Inc. have been negligent and calls for compensatory and punitive
damages.
Attorney Mark Ekonen filed the lawsuit December 21, 2022 in St.
Clair Circuit Court on behalf of Candice Jackson and Emmanuel
Gomes. The complaint outlines how the ongoing fire and smoke has
affected the plaintiffs' families. It's caused medical issues and
driven them to purchase air purifiers and cleaning equipment to
combat the smoke entering their homes.
Gomes' two children, who suffer from asthmatic issues, have had
severe asthma symptoms since the fire started, according to the
suit.
Ekonen has also been dealing with the effects of the fire
firsthand.
"I'm not just the attorney that filed the lawsuit. I also live
about a mile away from the landfill," Ekonen said. "So we became
aware of the smoke and the fire very early on."
The complaint cites years of inspections and violations from the
Alabama Department of Environmental Management showing that the
agency had found unauthorized waste like tires, power poles,
construction debris and scrap metal on the property. Many of the
documents also note the site's heightened fire hazard risk.
Responses from the landfill operators showed that they took steps
to remove unauthorized waste from the property in 2013 and again in
2017. In a 2018 response, ADEM said the site met the criteria for
an unauthorized solid waste dump and asked for a closure plan, but
the site continued operating. After another inspection in 2020,
ADEM documents show that the owners removed unauthorized waste
twice in 2021.
However, in the last inspection before the fire started -- in
August 2022 -- the inspector wrote that, while he didn't see any
unauthorized waste, he was informed by one of the operators,
Charlie Rich, that unauthorized waste was buried in several areas
on the property and that he planned to have it remediated over the
next 18 months. Four months later, the fire began.
The complaint says that the smoke "frequently smells of chemicals"
due to the buried unauthorized waste and that an air quality
monitor placed near the site has registered unhealthy-to-hazardous
levels of particulates.
When contacted at the number associated with Environmental Landfill
Inc., the person who answered said he was unable to comment at this
time.
The lawsuit seeks class action status. The proposed class includes
owners and occupants of property within a 5-mile radius of the
landfill. The complaint estimates there could be hundreds of people
in the class. Ekonen says there could be even more.
"It's going to be significantly more than hundreds, I think, when
all is said and done, " Ekonen said.
The fire continues to burn. The St. Clair County Commission issued
an emergency declaration on January 3, 2023 and is in the process
of evaluating bids from private companies that say they will be
able to extinguish the fire.
Ekonen says that not much about the situation has changed since he
first filed the complaint.
"The people that are surrounding the landfill have been dealing
with something that they never expected they would have to deal
with," Ekonen said. "Hopefully through the efforts of the county,
they can get the fire put out sooner rather than later. And
everybody in this area can start moving beyond having to deal with
the smoke and the soot and all that on a daily basis and start
putting their lives together," Ekonen said. [GN]
ESS TECH: Bids for Lead Plaintiff Appointment Due March 13
----------------------------------------------------------
WHY: Rosen Law Firm, a global investor rights law firm, on Jan. 15
disclosed that it has filed a class action lawsuit on behalf of
purchasers of the securities of ESS Tech Inc. GWH between August
11, 2022 and December 7, 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
March 13, 2023.
SO WHAT: If you purchased ESS Tech 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 ESS Tech class action, go to
https://rosenlegal.com/submit-form/?case_id=10877 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 March 13, 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, defendants
throughout the Class Period made false and/or misleading statements
and/or failed to disclose, among other things, that: (1) the
purported agreement with Energy Storage Industries Asia Pacific
("ESI") was in fact an undisclosed related party transaction
because ESI was a de-facto subsidiary of ESS masquerading as
third-party client; (2) ESS misled investors with their partnership
announcement to signal business success to investors; and (3) as a
result, 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.
To join the ESS Tech class action, go to
https://rosenlegal.com/submit-form/?case_id=10877 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]
FCTI INC: Loses Bid for Summary Judgment v. Polvay Class
--------------------------------------------------------
In the class action lawsuit captioned as JEROME POLVAY,
Individually and on Behalf of all Others Similarly Situated, v.
FCTI, Inc., and DOES 1-10, Inclusive, Case No. 1:22-cv-04315-JSR
(S.D.N.Y.), the Hon. Judge Jed S. Rakoff entered an order denying
the Defendant's motion for summary judgment in its favor on all
claims asserted by the Plaintiff Jerome Polvay in the First Amended
Complaint.
FCTI provides ATM network and services.
A copy of the Court's order dated Jan. 13, 2022 is available from
PacerMonitor.com at https://bit.ly/3wbEtty at no extra charge.[CC]
FEGHALI FOODS: Rodriguez Files Suit in Cal. Super. Ct.
------------------------------------------------------
A class action lawsuit has been filed against Feghali Foods. The
case is styled as Isaac Rodriguez, an individual, on behalf of
himself and on behalf of all persons similarly situated v. Feghali
Foods, Case No. BCV-23-100130 (Cal. Super. Ct., Kern Cty., Jan. 17,
2023).
The case type is stated as "Other Employment - Civil Unlimited."
Feghali Foods -- http://feghalifoods.com/-- offers food and
beverage services.[BN]
GENERAL ELECTRIC: Trivedi Securities Suit Transferred to D. Mass.
-----------------------------------------------------------------
The case styled Trivedi v. General Electric Company et al., Case
No. 1:22-cv-10630, was transferred from the U.S. District Court for
the Southern District of New York to the U.S. District Court for
the District of Massachusetts, Boston, on January 10, 2023.
The Clerk of Court for the District of Massachusetts assigned Case
No. 1:23-cv-10067 to the proceeding.
The lawsuit is brought over Defendants' alleged violations of the
Securities Exchange Act of 1934, the Dodd-Frank Act, the
Sarbanes-Oxley Act, the Civil Rights Act of 1866, the Federal Tort
Claims Act, and the Administrative Procedures Act.
General Electric Company is a globally diversified technology and
financial services company. The Company's products and services
include aircraft engines, power generation, water processing, and
household appliances to medical imaging, business and consumer
financing, and industrial products.[BN]
The Plaintiff appears pro se.
GENERAL MOTORS: Class Certification Bid Must be Filed by Feb. 24
----------------------------------------------------------------
In the class action lawsuit captioned as DURWIN HAMPTON,
individually, and on behalf of all others similarly situated, v.
GENERAL MOTORS, LLC, Case No. 6:21-cv-00250-RAW (E.D. Okla.), the
Hon. Judge Ronald A. White entered a Scheduling order as follows:
Plaintiff to file Class Certification February 24, 2023
Motion:
Plaintiff to disclose any Expert Reports: February 24, 2023
GM's Response to Plaintiff's Class April 25, 2023
Certification Motion:
GM to disclose any Expert Reports: April 25, 2023
Plaintiff's Reply in Support of June 7, 2023
Class Certification Motion:
Plaintiffs to disclose any Expert June 7, 2023
Rebuttal Reports:
Deadline for filing Dispositive 60 days after
Motions: ruling on Class
Certification
Deadline for Objections to Dispositive 120 days after
Motions: ruling on Class
Certification
General Motors is an American multinational automotive
manufacturing company.
A copy of the Court's order dated Jan. 13, 2022 is available from
PacerMonitor.com at https://bit.ly/3iKvKM8 at no extra charge.[CC]
GENERAL MOTORS: Must File Class Cert Bid Response by Jan. 27
------------------------------------------------------------
In the class action lawsuit captioned as DOMINGUEZ HURRY, et al.,
v. GENERAL MOTORS LLC, Case No. 3:21-cv-00673-ECM-JTA (M.D. Ala.),
the Hon. Judge Emily C. Marks entered an order on the Plaintiffs'
motion for class certification, filed on January 11, 2023:
-- The Defendant shall file a response to the Plaintiffs'
motion on or before January 27, 2023.
-- The Plaintiffs shall file a reply to the Defendant's
response on or before February 3, 2023.
General Motors is an American multinational automotive
manufacturing company.
A copy of the Court's order dated Jan. 13, 2022 is available from
PacerMonitor.com at https://bit.ly/3XvMK7q at no extra charge.[CC]
GENWORTH LIFE: Joint Bid to Extend Deadlines OK'd in McMillan
-------------------------------------------------------------
In the class action lawsuit captioned as PATSY H. MCMILLAN,
Individually and On Behalf Of All Others Similarly Situated, v.
GENWORTH LIFE AND ANNUITY INSURANCE COMPANY, Case No.
1:21-cv-00091-MC (D. Or.), the Parties ask the Court to enter an
order granting their joint motion to extend deadlines for class
certification briefing as follows:
The parties' proposed new deadlines are as follows:
Event Current New
Deadline Deadline
Plaintiff's Motion for Class Jan. 17, 2023 Jan. 31, 2023
Certification and any Class
Certification Expert Report
Defendant's Opposition to Mar.20, 2023 Apr. 3, 2023
Motion for Class
Certification and any
Class Certification Expert
Report
Plaintiff's Reply in support May 22, 2023 Jun. 5, 2023
of Motion for Class
Certification and any
Rebuttal Class Certification
Expert Report
The remaining deadlines in this case flow from the deadline for
class members to opt out of any certified class; thus, the parties'
requested extension does not require any further changes to the
existing deadlines, settings, or schedules.
Genworth Life is a stock life insurance company.
A copy of the Parties' motion dated Jan. 13, 2022 is available from
PacerMonitor.com at http://bit.ly/3iF1Tohat no extra charge.[CC]
The Plaintiff is represented by:
David F. Sugerman, Esq.
Nadia H. Dahab, Esq.
SUGERMAN DAHAB
707 SW Washington St., Ste. 600
Portland, OR 97205
Telephone: (503)-228-6474
Facsimile: (503) 228-2556
E-mail: david@sugermandahab.com
nadia@sugermandahab.com
- and -
Norman E. Siegel, Esq.
Lindsay Todd Perkins, Esq.
Ethan M. Lange, Esq.
David A. Hickey, Esq.
STUEVE SIEGEL HANSON LLP
460 Nichols Road Ste. 200
Kansas City, MO 64112
Telephone: (816) 714-7100
Facsimile: (816) 714-7101
E-mail: siegel@stuevesiegel.com
perkins@stuevesiegel.com
lange@stuevesiegel.com
hickey@stuevesiegel.com
- and -
John J. Schirger, Esq.
Matthew W. Lytle, Esq.
Joseph M. Feierabend
MILLER SCHIRGER, LLC
4520 Main Street Ste. 1570
Kansas City, MO 64111
Telephone: 816-561-6500
Facsimile: 816-561-6501
E-mail: jschirger@millerschirger.com
mlytle@millerschirger.com
jfeierabend@millerschirger.com
The Defendant is represented by:
Christopher T. Carson, Esq.
KILMER VOORHEES & LAURICK, PC
2701 NW Vaughn St., Suite 780
Portland, OR 97210
Telephone: (503) 224-0055
E-mail: ccarson@kilmerlaw.com
- and -
Patrick J. Gennardo, Esq.
Thomas A. Evans, Esq.
Kathy J. Huang, Esq.
ALSTON & BIRD LLP
90 Park Avenue, 15th Floor
New York, NY 10016-1387
Telephone: (212) 210-9400
Facsimile: (212) 210-9444
E-mail: patrick.gennardo@alston.com
tom.evans@alston.com
kathy.huang@alston.com
GEOVERA SPECIALTY: Bid to Strike Class Allegations Junked
---------------------------------------------------------
In the class action lawsuit captioned as LARRY W. ALEXANDER, ET AL.
v. GEOVERA SPECIALTY INSURANCE CO., Case No. 2:21-cv-03166-JDC-KK
(W.D. La.), the Hon. Judge Kathleen Kay entered an order denying
the motion to strike.
The Court said, "After reviewing the parties' arguments and the
relevant case law, we find it would a better practice to assess the
propriety of the class allegations through a motion for class
certification after discovery has occurred rather than on the
current motion to strike. Due to the foregoing, we find that it is
too early in the litigation to determine the sufficiency of the
class allegations. Thus, the motion to strike is denied."
The action is a putative class action against defendant GeoVera
Specialty Insurance Company for breach of insurance agreement and
violation of Louisiana Insurance Code Section 22:1892.
In their third amended complaint, the plaintiffs allege that
defendant engaged in "a corporate pattern and practice of improper
claims adjusting and payment."
Specifically, the plaintiffs allege that defendant's actions caused
defendant's Louisiana policyholders (plaintiffs and putative class
members) to receive less in payment on their property insurance
claims than defendant was obligated to pay or than plaintiffs and
the putative class members were entitled to receive.
The Plaintiffs define the putative class as:
"All property insurance policyholders of GEOVERA SPECIALTY
INSURANCE COMPANY in the State of LOUISIANA who, between
August 31, 2019 and the present made a claim and received a
loss payment from Defendant for damage to their insured
property, which claim included one or more of the following
specified material components: plywood, drywall, drip edge
and roofing felt."
The Defendant filed the instant motion to strike the class
allegations in plaintiffs' third amended complaint. According to
the defendant, plaintiff cannot satisfy Federal Rule of Civil
Procedure 23(b)(3)'s predominance requirement for class
certification. In their opposition, the plaintiffs disagree and
urge this court to allow the parties to conduct discovery instead
of granting the motion to strike at "this early stage of the
proceedings."
The Defendant replies that "courts can and do strike class
allegations on the pleadings where it is apparent from the
pleadings that a class cannot be certified."
Geovera Specialty offers property and casualty insurance products
and services.
A copy of the Court's order dated Jan. 13, 2022 is available from
PacerMonitor.com at https://bit.ly/3Xkv5Qr at no extra charge.[CC]
GGG DEMOLITION: Garcia Files Suit in Cal. Super. Ct.
----------------------------------------------------
A class action lawsuit has been filed against GGG Demolition, Inc.,
et al. The case is styled as Irving Garcia, on behalf of other
member of the general public similarly situated v. GGG Demolition,
Inc., Does 1-100, Case No. 34-2023-00333133-CU-OE-GDS (Cal. Super.
Ct., Sacramento Cty., Jan. 17, 2023).
The case type is stated as "Other Employment - Civil Unlimited."
GGG Demolition, Inc. -- http://gggdemo.com/-- provides
full-service demolition and hazardous waste remediation
services.[BN]
The Plaintiff is represented by:
Douglas Han, Esq.
JUSTICE LAW CORPORATION
751 N Fair Oaks Ave, Ste. 101
Pasadena, CA 91103-3069
Phone: (818) 230-7502
Fax: (818) 230-7259
Email: dhan@justicelawcorp.com
GO FLORIDA: Does Not Pay Proper Overtime Wages, Moore Says
----------------------------------------------------------
ANGELA MOORE, on behalf of herself and all other similarly-situated
individuals, Plaintiff v. GO FLORIDA INVESTMENTS INC., d/b/a
Roelens Vacation Rentals and Management, Roelens Vacations, and
KOEN ROELENS, Defendants, Case No. 2:23-cv-00017 (M.D. Fla.,
January 10, 2023) arises from the Defendants' violations of the
Fair Labor Standards Act for failure to pay Plaintiff overtime
compensation and a premium for all hours worked over 40 each week.
Plaintiff Moore worked for Defendants beginning July 2021 as an
executive assistant and then approximately in February 2022 under
title of "Integrator" until her separation from her employment on
November 16, 2022.
Go Florida Investments Inc. is a vacation home rental agency in
Cape Coral, Florida.[BN]
The Plaintiff is represented by:
Mitchell L. Feldman, Esq.
FELDMAN LEGAL GROUP
6916 W. Linebaugh Ave., #101
Tampa, FL 33625
Telephone: (813) 639-9366
E-mail: Mfeldman@flandgatrialattorneys.com
GOFUND ADVANCE: Bid to Certify Class in Haymount RICO Suit Denied
-----------------------------------------------------------------
In the case, HAYMOUNT URGENT CARE PC, et al., Plaintiffs v. GOFUND
ADVANCE, LLC, et al., Defendants, Case No. 22-cv-1245 (JSR)
(S.D.N.Y.), Judge Jed S. Rakoff of the U.S. District Court for the
Southern District of New York denies the Plaintiffs' motion to
certify a class.
Haymount and its principal Robert A. Clinton Jr. have moved to
certify a class of all persons nationwide who since 2018 received
funding from one or more of Defendants pursuant to a "merchant cash
advance" ("MCA") agreement with an effective interest rate
exceeding 25%.
Haymount is a primary and urgent care facility in North Carolina
owned by Dr. Clinton. The individual and corporate Defendants are
in the merchant cash advance business. That business, the
Defendants assert, provides cash-starved small businesses such as
Haymount (which received over $2.5 million in funding pursuant to
several MCA agreements) with necessary cash by purchasing a share
of those businesses' future revenues for a discount. The Plaintiffs
characterize the Defendants' business differently, alleging that
the latter employ high-pressure sales tactics to get small
businesses to sign up for what are in effect very high-interest
loans made in violation of applicable state laws setting maximum
interest rates.
Haymount and Dr. Clinton commenced the suit in February 2022,
alleging various claims including one under the Racketeer
Influenced and Corrupt Organizations ("RICO") Act. After the
Defendants moved to dismiss the Plaintiffs' complaint, the Court
determined that the Plaintiffs plausibly alleged facts supporting
the RICO claim under two separate theories.
In support of one theory, the Plaintiffs alleged that the MCA
agreements operated not as purchases of future revenues but as
loans with interest rates more than twice as high as permitted
under New York's anti-usury laws -- which, if that law were
applicable, would render collection on them unlawful under RICO.
The Court also found that the Plaintiffs adequately alleged a
pattern of federal wire fraud violations based on GoFund Advance's
alleged use of misleading names to evade blocks and withdraw funds
from Haymount's bank account without authorization.
The Plaintiffs' first RICO theory -- that collection under the MCA
agreements constituted the collection of unlawful debt -- turns
necessarily on showing that the MCA agreements in fact constituted
unlawful debt under some state's usury laws. In their initial
briefing on the subject, both the Plaintiffs and the Defendants
assumed the relevant state's law was New York's, and after the
Court ordered supplemental briefing on the choice-of-law question,
the Defendants took the position that New York law applied by
virtue of a New York choice-of-law provision included in each of
the relevant MCA agreements, while the Plaintiffs did not dispute,
for the purposes of the motion to dismiss, that New York law
applied.
In its Opinion and Order denying in large part the Defendants'
motion to dismiss, the Court therefore assumed, for purposes of the
motion to dismiss, that that New York law applied to the question
of whether the MCA agreements qualify as usurious, both because the
parties had so agreed and because the MCA agreements at issue
expressly choose that New York law will govern their terms. This
statement, however, was made in the context of a motion to
dismiss.
But things became more complicated after defendants subsequently
moved to strike the class allegations in the Plaintiffs' complaint,
arguing that because of class action waiver clauses included in the
MCA agreements, the Plaintiffs' case could not proceed as a class
action. The Court denied that motion, reasoning that if the
Plaintiffs succeeded in showing that the MCA agreements would be
considered usurious loans under New York law, then New York law
would also treat them as totally void and unenforceable, including
as to the class action waiver provisions.
In their papers, the Defendants devoted a single paragraph to an
argument that the Court should enforce the class action waiver
provisions because it had already assumed, in deciding their motion
to dismiss, that the choice-of-law provision was enforceable. The
Court rejected this argument, noting that the parties had assumed
at the pleading stage that New York law applied, that the
Defendants had consented to its application as to the lead
Plaintiffs, and that there was at least some basis to think an
independent choice-of-law analysis might result in the application
of New York law in any event, given allegations that the defendants
operated from New York. However, the Court noted that, in order to
certify a class, the Plaintiffs would need to demonstrate that that
the questions of whether or not the MCA agreements are void and
whether the MCA agreements' class action waiver provisions can be
enforced against them are capable of class-wide resolution.
When the Plaintiffs moved for class certification, they argued that
their first RICO theory -- that the Defendants were engaged in the
collection on usurious loans in violation of 18 U.S.C. 1962(C) --
could be determined on a class-wide basis. They did not make any
argument for class certification based on their second RICO theory
involving a pattern of alleged wire fraud or any other theory.
After hearing argument on the Plaintiffs' motion on Dec. 6, 2022,
the Court denied the Plaintiffs' motion by bottom-line order on
Dec. 26, 2022, with Judge Rakoff's Opinion to follow.
Judge Rakoff explains that a plaintiff seeking to certify a class
must show that the proposed class complies with each of the
requirements of Federal Rule of Civil Procedure 23(a) (numerosity,
commonality, typicality, and adequacy) and at least one of the
requirements of Rule 23(b) (that piecemeal litigation would create
a risk of inconsistent verdicts, that the defendant has acted
toward the class in a generally applicable way such that class-wide
injunctive or declaratory relief would be appropriate, or that
common questions of law or fact predominate over other questions).
As to Rule 23(a) (2)'s requirement of common legal or factual
questions, what matters to class certification is the capacity of a
class-wide proceeding to generate common answers apt to drive the
resolution of the litigation." However, even a single common
question will do.
As it turns out, Judge Rakoff finds that the Plaintiffs cannot meet
this commonality requirement. He says although the Plaintiffs pose
several putatively common questions as to which class litigation
could supposedly furnish common answers, these questions all boil
down to, are part of, or follow from a single question: do the
Defendants' MCA agreements operate as unlawfully usurious loans?
Judge Rakoff holds that that question turns necessarily on state
usury law.
In the case, Haymount -- itself a North Carolina-based company --
seeks to certify a nationwide class of entities that have received
funding from defendants pursuant to MCA agreements. That
necessarily raises the question of whether one or several states'
usury laws applies to individual putative class members' claims.
Judge Rakoff finds that the MCA Agreements' Choice-of-Law
Provisions do not eliminate the need for an individualized
choice-of-law analysis. The apparent impossibility of conducting a
collective choice-of-law analysis as to all class members that
would result in the application of a single state's usury laws.
He also finds that individualized choice-of-aw analyses preclude
class certification. The single putatively common question raised
by the Plaintiffs (albeit in multiple components or variations) --
whether the MCA agreements offered by defendants are unlawful debts
under state usury laws -- necessarily turns on individualized
choice-of-law analyses that will vary substantially state to state
and putative class member to putative class member. Nor is there
any way to narrow the proposed class to address this problem, since
the lead Plaintiffs are North Carolina-based and the Plaintiffs
have made no showing that they can meet Rule 23's requirements with
respect to a North Carolina-based class of borrowers or can
adequately represent and are typical of a class of New York-based
borrowers. For these reasons, the Plaintiffs have failed to show
that there are questions of law or fact common to the class.
Judge Rakoff denies the Plaintiffs' motion to certify a class. The
Clerk is directed to close the motion on the docket. As stated in
the Court's Dec. 29, 2022 bottom-line order and pursuant to the
parties' Case Management Plan, any summary judgment motions will be
due on Feb. 12, 2023, with opposing papers due Feb. 27, 2023, and
reply papers due March 6, 2023. A final pre-trial conference and
argument on summary judgment motions will be held on March 15,
2023, at 4:00 p.m.
A full-text copy of the Court's Jan. 13, 2023 Opinion & Order is
available at https://tinyurl.com/33sx93by from Leagle.com.
HOMEAGLOW INC: Hovis Suit Removed to S.D. Cal.
----------------------------------------------
The case styled MARIE HOVIS, an individual; GENARO MENDOZA, an
individual, on behalf of themselves and all others similarly
situated, Plaintiffs v. HOMEAGLOW, INC., a Delaware corporation and
DOES 1 through 100, inclusive, Defendants, Case No.
37-2022-00048618-CU-OE-CTL, was removed from the Superior Court of
California for the County of San Diego to the United States
District Court for the Southern District of California on January
10, 2023.
The Clerk of Court for the Southern District of California assigned
Case No. 3:23-cv-00045-JM-WVG to the proceeding.
In the complaint, Plaintiffs allege, on behalf of themselves and
all others similarly situated, 10 total causes of action, eight of
which are for various violations of the California Labor Code, one
for breach of contract, and another one of which is for "Unfair
Competition" under the California Business & Professions Code.
Homeaglow Inc. is a house cleaning service provider in San
Francisco, California.[BN]
The Defendant is represented by:
Andrew M. Spurchise, Esq.
LITTLER MENDELSON, P.C.
900 Third Avenue
New York, NY 10022-3298
Telephone: (212) 583-9600
Facsimile: (212) 832-2719
E-mail: aspurchise@littler.com
- and -
Anthony G. Ly, Esq.
LITTLER MENDELSON, P.C.
2049 Century Park East 5th Floor
Los Angeles, CA 90067-3107
Telephone: (310) 553-0308
Facsimile: (310) 553-5583
E-mail: aly@littler.com
- and -
Lisa Lin Garcia, Esq.
Garrick Y. Chan, Esq.
LITTLER MENDELSON, P.C.
333 Bush Street 34th Floor
San Francisco, CA 94104
Telephone: (415) 433-1940
Facsimile: (415) 399-8490
E-mail: llgarcia@littler.com
gchan@littler.com
HOUSING WORKS: Bunting Sues Over Blind-Inaccessible Website
-----------------------------------------------------------
Rasheta Bunting, individually and as the representative of a class
of similarly situated persons v. HOUSING WORKS CANNABIS, LLC, Case
No. 1:23-cv-00286 (E.D.N.Y., Jan. 17, 2023), is brought against the
Defendant's failure to design, construct, maintain, and operate
their website to be fully accessible to and independently usable by
Plaintiff and other blind or visually-impaired persons.
The Defendant is denying blind and visually-impaired persons
throughout the United States with equal access to the goods and
services Housing Works provides to their non-disabled customers
through http//:www.Hwcannabis.co (hereinafter "Hwcannabis.co" or
"the website"). The Defendant' denial of full and equal access to
its website, and therefore denial of its products and services
offered, and in conjunction with its physical locations, is a
violation of the Plaintiff's rights under the Americans with
Disabilities Act, says the complaint.
The Plaintiff is a visually-impaired and legally blind person who
requires screen reading software to read website content using her
computer.
Housing Works Store provides to the public important and enjoyable
goods including cannabis products which are available for sale at
the Store location.[BN]
The Plaintiff is represented by:
Dan Shaked, Esq.
SHAKED LAW GROUP, P.C.
44 Court Street, Suite 1217
Brooklyn, NY 11201
Phone: (917) 373-9128
Email: ShakedLawGroup@gmail.com
HP INC: Court Dismisses Freund Class Suit With Leave to Amend
-------------------------------------------------------------
In the case, GARY FREUND, et al., Plaintiffs v. HP, INC.,
Defendant, Case No. 22-cv-03794-BLF (N.D. Cal.), Judge Beth Labson
Freeman of the U.S. District Court for the Northern District of
California, San Jose Division, grants HP's motion to dismiss the
Plaintiffs Complaint with leave to amend.
Plaintiffs Gary Freund and Wayne McMath bring the class action
lawsuit against HP, asserting assert common law claims and claims
under California and Minnesota consumer protection laws based on
allegations that HP's all-in-one printers will not perform certain
functions that do not require ink when the devices have low or
empty ink cartridges. The Plaintiffs seek to represent a nationwide
class and California and Minnesota subclasses of consumers who
purchased HP all-in-one printers.
As alleged in the complaint, HP designs, manufactures, and sells
all-in-one printers. Its all-in-one printers are marketed and sold
as having three core functions: printing, copying, and scanning.
Some of these all-in-one printers also have a faxing feature. HP
advertises that its all-in-one printers are convenient because
users do not have to buy a separate device for each task.
HP all-in-one printers are manufactured, packaged, marketed, and
sold to consumers in a manner that requires the device to contain
ink to scan or fax documents. But it does not disclose to consumers
that the devices will not scan or fax documents if the ink
cartridges are depleted.
The Plaintiffs purchased an HP Envy 6455e All-in-One Wireless Color
Printer and HP Deskjet 2655 All-in-One Compact Printer,
respectively. HP represented that the devices would be able to scan
and did not include qualifying language that such features would
not work if the ink cartridge levels were low or depleted. The
devices do not function as a scanner if the ink cartridges are low
or empty.
Freund and McMath would not have purchased their devices or would
not have paid as much for them had they known that they would have
to maintain ink the devices to scan documents. They may purchase
the HP all-in-one printers again in the future should HP continue
to advertise the devices as "all-in-one," as they would think it
meant HP manufactured the devices to make them scan even when the
ink is low or depleted.
The Plaintiffs filed the lawsuit on June 27, 2022. The Complaint
asserts claims for (1) negligent misrepresentation; (2) unjust
enrichment; (3) breach of express warranty under Cal. Com. Code
Section 2313; (4) violation of California's Unfair Competition Law
("UCL"), Cal. Bus. & Prof. Code Section 17200, et seq.; (5)
violation of California's False Advertising Law ("FAL"), Cal. Bus.
& Prof. Code Section 17500, et seq.; (6) breach of express warranty
under Minn. Stat. Section 336.2-313; (7) violation of Minnesota's
Deceptive Trade Practices Act ("MDTPA"); (8) violations of
Minnesota's False Advertising Law ("MSFAA").
Now before the Court is HP's motion to dismiss the Plaintiffs
Complaint. The Plaintiffs oppose. HP has replied in support. Judge
Freeman held a hearing on the motion on Jan. 5, 2023.
The Plaintiffs assert five claims that involve fraud or fraudulent
representations: negligent misrepresentation and violations of the
UCL; FAL; MDTPA; and MFSAA. HP asserts, and the Plaintiffs do not
dispute, that these claims are subject to Rule 9(b)'s heightened
pleading requirements.
Judge Freeman finds that the Plaintiffs' fraud-based claims may be
premised on either omissions or affirmative misrepresentations. It
is unclear from the complaint whether they seek to allege an
omission-based or affirmative- misrepresentation-based theory of
fraud. The Plaintiffs argue in their briefing that they seek to
proceed on both theories.
Judge Freeman finds the Plaintiffs' allegations deficient under
either theory. She says the Plaintiffs have not pled facts showing
that HP omitted facts it had a duty to disclose. She also finds
that the Plaintiffs' allegations are deficient because they do not
identify whether the alleged defects are occurring within the
warranty period or otherwise implicate a safety concern. They have
therefore failed to plead an omission to support their fraud-based
claims.
HP argues that the Plaintiffs have failed to identify the alleged
defect with the requisite particularity. The Plaintiffs respond
that their allegations are sufficient because they "do not merely
identify the consequences of the alleged defect, nor are they
notably silent on identifying the defect that causes such
consequences. Judge Freeman agrees with HP that the Plaintiffs have
not identified the alleged design defect with the requisite
particularity to satisfy Rule 9(b).
For the reasons, the Plaintiffs' claims for negligent
misrepresentation and violations of the UCL; FAL; MDTPA; and MFSAA
(Counts 1, 4, 5, 7, and 8) are dismissed with leave to amend.
HP argues that the Plaintiffs' negligent misrepresentation claim
should also be dismissed because it is barred by the economic loss
rule. The Plaintiffs respond that the economic loss doctrine does
not bar their negligent misrepresentation claim because their claim
sounds in fraud. HP replies that the Plaintiffs' negligent
representation claim is barred here because it is premised on the
same allegations as their breach of warranty claims.
Judge Freeman holds that In In re Big Heart Pet Brands Litigation,
the Court adopted an approach that "evaluates whether the
allegations that support a negligent misrepresentation claim
closely parallel a concurrent breach of contract claim so that the
negligent misrepresentation claim is in actuality a breach of
contract claim in disguise." The Plaintiffs' negligent
misrepresentation claim and breach of warranty claims rely on
substantially similar allegations: the Plaintiffs allege that they
are entitled to damages because HP advertised its devices as
all-in-one printers and did not disclose that those devices would
not scan or fax when they are low or out of ink.
Judge Freeman, therefore, finds that the Plaintiffs' claim for
negligent misrepresentation should be dismissed under the economic
loss rule. The Plaintiffs' claim for negligent misrepresentation
(Count 1) is therefore dismissed with lave to amend on this
independent basis.
HP also argues that the Plaintiffs breach-of-express-warranty
claims should be dismissed because such claims apply to
manufacturing defects, not design defects, and the Plaintiffs have
alleged only a design defect. The Plaintiffs respond that they need
discovery to determine whether the defect is a design or
manufacturing defect.
Judge Freeman determines that the Plaintiffs'
breach-of-express-warranty claims are inadequately pled because
they do not allege any facts to support that the alleged defect is
a manufacturing defect and they do not identify the specific and
unequivocal written statements comprising the alleged warranties.
The Plaintiffs' breach-of-warranty claims (Counts 3 and 6) are
therefore dismissed with leave to amend. If the Plaintiffs seek to
amend their allegations such that they include warranties that
cover manufacturing defects, they should include factual
allegations supporting any claims of manufacturing defects.
HP argues that the Court must dismiss the Plaintiffs' claims for
equitable relief under Sonner v. Premier Nutrition Corp., 971 F.3d
834 (2020), because they have not alleged that they lack an
adequate remedy at law. The Plaintiffs respond that their claims
for equitable restitution should not be dismissed because they are
allowed to plead their claims for equitable relief in the
alternative to their claims for legal relief.
Judge Freeman finds that Plaintiffs must plead facts as to why
their claims for negligent misrepresentation and breach of warranty
provide inadequate remedies at law. Their claims for equitable
restitution for unjust enrichment and violations of the UCL, FAL,
MDTPA, MFSAA are therefore dismissed with leave to amend. She also
finds that the Plaintiffs have sufficiently alleged an inadequate
remedy at law with regard to their requests for injunctive relief.
HP then argues that the Plaintiffs' unjust enrichment claim should
be dismissed because the Court is dismissing their underlying
fraud-based claims and because they have alleged that the parties
entered into an express contract. The Plaintiffs respond that their
unjust enrichment claim should survive even the Court dismisses
their fraud-based claims because the Court may construe the claim
as a quasi-contract claim seeking restitution that is plead in the
alternative to their breach of contract claim.
Judge Freeman finds that the Plaintiffs have failed to state a
claim for unjust enrichment. While she agrees with the Plaintiffs
that they may plead their unjust enrichment claim in the
alternative to their breach of warranty claims, they have failed to
include the necessary alternative allegations. Their claim for
unjust enrichment (Count 2) is therefore dismissed with leave to
amend.
Finally, the HP asserts that the Plaintiffs lack standing to assert
claims for products they did not purchase. The Plaintiffs respond
that they have standing to assert claims for products they did not
purchase because they have alleged that "HP has made identical
misrepresentations regarding all of the Products."
Judge Freeman holds that the Complaint contains no factual
allegations about the software or that it is the same in the
non-purchased products. She also notes that the Plaintiffs have not
alleged that either named Plaintiff purchased a device with fax
capabilities, much less experienced the alleged defect when trying
to use their device. To the extent the Plaintiffs seek to pursue
their claims on behalf of purchasers of all-in-one printers with
fax capabilities, their complaint will need to include factual
allegations to suggest that the fax functionality suffers from a
substantially similar defect. The Plaintiffs' claims are therefore
dismissed with leave to amend to the extent they assert claims for
non-purchased products.
For the foregoing reasons, Judge Freeman orders that HP's motion to
dismiss is granted with leave to amend, as to:
a. the fraud-based claims (negligent misrepresentation and
violations of the UCL; FAL; MDTPA; and MFSAA (Counts 1, 4, 5, 7,
and 8)) for failure to state a claim;
b. the claim for negligent misrepresentation for failure to
state a claim;
c. the claim for negligent misrepresentation (Count 1) for
failure to state a claim;
d. the claims seeking equitable restitution under the UCL, FAL,
MDTPA, MFSAA for lack of equitable jurisdiction; and
e. all claims for non-purchased all-in-one printers.
The Plaintiffs may submit an amended complaint by no later than
Feb. 10, 2023.
A full-text copy of the Court's Jan. 13, 2023 Order is available at
https://tinyurl.com/5yy2psfs from Leagle.com.
HYPER MICROSYSTEMS: Gonzalez Sues Over Unlawful Biometric Scanning
------------------------------------------------------------------
Enrique Gonzalez, individually and on behalf of other persons
similarly situated v. HYPER MICROSYSTEMS, INCORPORATED, Case No.
2023LA000041 (18th Judicial Cir. Ct., DuPage Cty., Jan. 17, 2023),
is brought to obtain statutory damages and other equitable relief
under the Illinois Biometric Information Privacy Act ("BIPA") as a
result of the unlawful biometric scanning and storage practices of
the Defendant.
As past and present employees of Defendant, Plaintiff and class
members were required to provide it with their personalized
biometric identifiers and the biometric information derived
therefrom ("biometric data"). Specifically, Defendant collects and
stores its employees' fingerprints and requires all the employees
to clock-in and clock-out by scanning their fingerprints into a
fingerprint-scanning machine. Following the capture of their
employees' biometric data, Defendant uses this data to compare the
future scans of their employees' fingerprints into a punch-clock
device. The punch-clock device scans each fingerprint and confirms
that the employee punching in to work is who they claim to be. The
collection of the punch-clock fingerprint entries is then used to
confirm employees' presence.
The Plaintiff and class members have not been notified where their
fingerprints are being stored, for how long Defendant will keep the
fingerprints, and what might happen to this valuable information.
The State of Illinois recognized the value and importance of
preserving people's biometric data when it passed the BIPA.
Unlike other forms of personal identification, such as photo IDs or
passwords, fingerprints are immutable aspects of our bodies. This
makes them a promising source of future identification-related
technology, particularly in our increasingly insecure technological
world. If Defendant insists on collecting and storing their
employees' fingerprints, Defendant must comply with the BIPA. This
includes notifying employees the practice is taking place;
informing employees of how the practice is implemented; obtaining
written consent from the employees to collect and store their
biometric data; maintaining their employees' biometric data in a
sufficiently secure manner; and maintaining a publicly available
disclosure of how the biometric data will be handled and
destroyed.
Unfortunately for the Plaintiff and class members, none of these
directives were followed. Accordingly, Plaintiff bring this action
individually and on behalf of class members pursuant to obtain
statutory damages and injunctive relief for violations of the BIPA,
says the complaint.
The Plaintiff is an individual subject to the same
fingerprint-storing practices as other of the Defendant's
employees.
The Defendant is a for-profit corporation that is registered to and
doing business in the state of Illinois.[BN]
The Plaintiff is represented by:
Roberto Luis Costales, Esq.
William H. Beaumont, Esq.
BEAUMONT COSTALES LLC
107 W. Van Buren, Suite 209
Chicago, IL 60605
Phone: (773) 831-8000
Email: rlc@beaumontcostales.com
whb@beaumontcostales.com
JABIL CIRCUIT: Robertson Sues Over Unpaid Overtime Compensation
---------------------------------------------------------------
Devon Robertson, on behalf of himself and all others similarly
situated, and on behalf of the general public v. JABIL CIRCUIT
COMPANY, a Michigan Corporation, ADECCO USA, INC., a Delaware
Corporation, and DOES 1 through 10, inclusive, Case No. 23CV409962
(Cal. Super. Ct., Santa Clara Cty., Jan. 17, 2023), is brought
against the Defendant violation of the California Labor Code by
failing to pay the Plaintiff overtime compensation and by failing
to provide uninterrupted 30-minute meal breaks.
The Plaintiff and the Defendant's California employees were
routinely unable, and not authorized to take their 10-minute rest
periods and were also unable to take an uninterrupted 30-minute
meal break for every shift they worked. Specifically, the Plaintiff
and the Defendant's California employees were forced to continue
working through their meal and rest breaks in order to assist
Defendant's needs. Because of this, Plaintiff and Defendant's
California employees were unable to take their required meal and
rest breaks. Moreover, the Defendants failed to pay premium wages
of one hour's pay for each missed meal and rest break to the
Plaintiff and the Defendant's California employees who were denied
timely meal and rest breaks, in violation of Labor Code.
The Plaintiff also claims that Defendant has failed to pay all
overtime wages due to non-exempt employees. As a result, employees
are not properly compensated for work performance in excess of 8
hours in a workday and work performed in excess of 40 hours in a
workweek at a rate of no less than one and one-half times the
regular rate of pay, says the complaint.
The Plaintiff was employed by the Defendants as a non-exempt,
hourly employee in California.
Jabil Circuit Company is doing business in Sunnyvale
California.[BN]
The Plaintiff is represented by:
Roman Otkupman, Esq.
Nidah Farishta, Esq.
OTKUPMAN LAW FIRM, A LAW CORPORATION
5743 Corsa Ave., Suite 123
Westlake Village, CA 91362
Phone: (818) 293-5623
Facsimile: (888) 850-1310
Email: Roman@OLFLA.com
Nidah@OLFLA.com
JORDAN SCHOOL: 10th Cir. Ruling in Title IX Class Suit Discussed
----------------------------------------------------------------
Maricris Prendingue, Andrew F. Gann Jr and Farnaz Farkish,
Thompson, McGuireWoods LLP of Lexology report that on Jan. 4, 2023,
the 10th U.S. Circuit Court of Appeals made two important findings
in a class-action case seeking to compel the creation of a
girls-only football team for high-school girls.
First, the 10th Circuit reversed the district court's denial of
class certification as to alleged violations of Title IX of the
Education Amendments of 1972, finding that the district court
applied the wrong standard for commonality of interest.
Second, the 10th Circuit affirmed the district court's finding that
the policy supporting the existing co-ed program was not, on its
face, discriminatory, because the girls were not deprived of an
opportunity otherwise available to boys.
This case -- Gordon v. Jordan School District, et al., No. 21-4044,
2023 WL 34105 (10th Cir. Jan. 4, 2023) -- concerned alleged
violations of Title IX, 20 U.S.C. Subsection 1681(a), and the 14th
Amendment's equal protection clause.
Concerning the issue of class certification for the Title IX
claims, upon review of the district court's rulings, the 10th
Circuit held that class certification under Rule 23(b)(2) is
appropriate when the proposed class shares a commonality of
interest. A sufficient showing of commonality requires
"identification of only a single issue shared by members of the
class." The proposed class shared a commonality of interest because
all the proposed members had an interest in proving a reasonable
expectation of competition for girls' teams.
The 10th Circuit held that when the district court focused on the
differences in level of interest across schools, the district court
was conducting a predominance inquiry -- not a commonality inquiry.
A predominance inquiry is not required for class certification
under Rule 23(b)(2).
Additionally, in response to the school districts' claim that any
error in the district court's ruling was harmless, the 10th Circuit
held that it was confining its review to the issue of denial of
class certification. As support, the 10th Circuit cited U.S. Parole
Commission v. Geraghty, in which the U.S. Supreme Court held that
it would be improper for an appellate court to consider "the merits
of the proposed class's claims until the district court had an
opportunity to revisit certification."
On the other hand, the district court had certified a class for the
equal protection claim. In upholding the district court's finding
that the co-ed program did not violate the equal protection clause,
the 10th Circuit analyzed whether the policy was facially neutral,
because "when a policy is facially neutral, courts only consider
the existence of rational basis." The 10th Circuit held that the
co-ed program was facially neutral because the school drew no
distinction based on gender -- both girls and boys were allowed to
play on the same football team.
While an all-girls team might be advantageous because it would
afford girls more playing time, the fact that girls were not
discouraged from joining the co-ed team supported the district
court's finding that the policy was not discriminatory. The 10th
Circuit noted that there was evidence to support a finding of
discriminatory purpose: Girls participated in football less
frequently than boys, the schools had discriminated against girls
in the past, and the schools offered a separate girls' team in
other sports. However, the district court did not clearly err
because it had reasonable evidentiary basis to reject the
allegation of discriminatory purpose.
This case is an important reminder of the gravity of precisely
applying the standard of commonality of interest when seeking class
certification, particularly when pursuing class certification under
Rule 23(b)(2). Further, this case shows that a mere showing of
advantage based on gender may be insufficient to support a claim of
gender discrimination. [GN]
JPMORGAN CHASE: Pessin Appeals ERISA Suit Dismissal to 2nd Cir.
---------------------------------------------------------------
Plaintiff Joseph Pessin filed an appeal from the District Court's
Opinion and Order and Judgment dated December 9, 2023 entered in
the lawsuit styled JOSEPH PESSIN, on behalf of himself and all
others similarly situated, Plaintiffs v. JPMORGAN CHASE US BENEFITS
EXECUTIVE, as Plan Administrator of the JPMorgan Chase Retirement
Plan, BOARD OF DIRECTORS OF JPMORGAN CHASE BANK and J.P. MORGAN
CHASE & COMPANY, JPMORGAN CHASE RETIREMENT PLAN, Defendants, Case
No. 1:22-cv-02436, in the United States District Court for the
Southern District of New York.
As reported in the Class Action Reporter on April 11, 2022, the
complaint is a class action brought by the Plaintiff, on his own
behalf and on behalf of all similarly situated JPMorgan Chase
Retirement Plan participants and their beneficiaries and estates,
pursuant to the Employee Retirement Income Security Act of 1974 for
alleged breaches of fiduciary duties.
The Plaintiff worked for Defendant JPMorgan Chase & Company and its
predecessors for more than 31 years. For the last 15 years of his
employment, he earned no benefit under the JPMC Plan, his benefit
having been effectively frozen as of December 31, 2003. This was
because the benefit he had accrued through December 31, 2003,
exceeded the benefit that he accrued over the subsequent years, a
phenomenon known as "wear-away" because the benefit under a prior
benefit formula must be worn away before the participant earns a
benefit under a new formula.
On August 24, 2022, the Defendants filed a motion to dismiss the
case which the Court granted on December 9, 2022 through an order
signed by Judge Denise L. Cote. Accordingly, the case was closed.
The appellate case is captioned as Pessin v. JPMorgan Chase U.S.
Benefits Executive, Case No. 23-25, in the United States Court of
Appeals for the Second Circuit, filed on January 9, 2023.[BN]
Plaintiff-Appellant Joseph Pessin, on behalf of himself and all
others similarly situated, is represented by:
David S. Preminger, Esq.
KELLER ROHRBACK, L.L.P.
1140 Avenue of The Americas
New York, NY 10036
Telephone: (646) 380-6690
Defendants-Appellees JPMorgan Chase U.S. Benefits Executive, as
Plan Administrator of the JPMorgan Chase Retirement Plan; Board of
Directors of JPMorgan Chase Bank and J.P. Morgan Chase & Company;
and JPMorgan Chase Retirement Plan are represented by:
Jeremy Paul Blumenfeld, Esq.
MORGAN, LEWIS & BOCKIUS LLP
1701 Market Street
Philadelphia, PA 19103
Telephone: (215) 963-5258
KEY STAFFING INC: Roby Files Suit in Cal. Super. Ct.
----------------------------------------------------
A class action lawsuit has been filed against Key Staffing, Inc.,
et al. The case is styled as John Roby, on behalf of himself and
all others similarly situated, and on behalf of the general public
v. Key Staffing, Inc., TNG Energy Services, Case No. BCV-23-100130
(Cal. Super. Ct., Kern Cty., Jan. 17, 2023).
The case type is stated as "Other Employment - Civil Unlimited."
Key Staffing -- https://www.hirekeystaff.com/ -- is a locally
owned, full-service staffing agency serving Bakersfield and Kern
County.[BN]
KING UNIVERSITY: Murphy Files ADA Suit in S.D. New York
-------------------------------------------------------
A class action lawsuit has been filed against King University. The
case is styled as James Murphy, for himself and on behalf of all
other persons similarly situated v. King University, Case No.
1:23-cv-00408 (S.D.N.Y., Jan. 17, 2023).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
King University -- https://www.king.edu/ -- is a private
Presbyterian-affiliated university in Bristol, Tennessee.[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
Fax: (212) 982-6284
Email: michael@gottlieb.legal
LITTLE ROCK, AR: Edwards Files ADA Suit in E.D. Arkansas
--------------------------------------------------------
A class action lawsuit has been filed against City of Little Rock.
The case is styled as Pete Edwards, on behalf of himself and all
others similarly situated v. City of Little Rock, Case No.
4:23-cv-00039-DPM (E.D. Ark., Jan. 17, 2023).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Little Rock -- https://www.littlerock.gov/ -- the capital of
Arkansas, is a city on the Arkansas River.[BN]
The Plaintiff is represented by:
Lucien R. Gillham, Esq.
Luther Oneal Sutter, Esq.
SUTTER & GILLHAM, PLLC
1501 North Pierce Street, Suite 105
Little Rock, AR 72207
Phone: (501) 315-1910
Fax: (501) 315-1916
Email: lucien.gillham@gmail.com
luthersutter.law@gmail.com
LUCID GROUP: Motion for Dismissal of Securities Class Suit Granted
------------------------------------------------------------------
Jonathan Stempel of Reuters reports Lucid Group Inc (LCID.O) on
Wednesday won the dismissal of a lawsuit accusing the luxury
electric car maker of defrauding investors in the special-purpose
acquisition company that helped take it public, by significantly
overstating its production outlook in the case-captioned In re
CCIV/Lucid Motors Securities Litigation, U.S. District Court,
Northern District of California, No. 21-09323.
U.S. District Judge Yvonne Gonzalez Rogers in Oakland, California
said that despite media speculation, Churchill Capital Corp IV
shareholders who brought the proposed class action had no reason to
know in early 2021 that the SPAC would merge with Lucid.
As a result, she said Lucid Chief Executive Peter Rawlinson's
alleged misleading statements on Feb. 5, 2021 on CNBC's "Squawk on
the Street" could not have been material to their decisions to
invest in the SPAC.
"The court cannot conceive of how plaintiffs could reasonably think
a merger was likely when Lucid and CCIV had not even publicly
acknowledged that a merger was being considered," the judge wrote.
Rawlinson had told CNBC that his Newark, California-based company
expected to produce 6,000 to 7,000 units of its Air vehicle in
2021, and had "already built" a factory.
Churchill shares fell 50% in the two days following the Feb. 22,
2021 merger announcement, wiping out an estimated $7.4 billion in
value, after Lucid said it expected to produce only 577 units and
the factory was not built.
Rogers said the Churchill shareholders had standing to sue over
statements made by a different company, Lucid, because they alleged
a "discernible" loss from "specific alleged misconduct."
But she said the pre-merger changes in Churchill's stock price,
including reaction to Rawlinson's statements, reflected "the
public's perception of the likelihood of the merger, not its actual
likelihood. The latter is what matters."
The merger raised about $4.4 billion for Lucid.
In Dec. 2021, Lucid received a U.S. Securities and Exchange
Commission subpoena for documents related to the merger. It has
said it has been cooperating. The company began delivering the Air
in Oct. 2021.
Lawyers for Churchill shareholders did not immediately respond to
requests for comment. Lucid and its lawyers did not immediately
respond to similar requests. [GN]
MARCO & FAMILY: Cabreja Sues Over Unpaid Minimum, Overtime Wages
----------------------------------------------------------------
Sebastian Cabreja, individually and on behalf of all others
similarly situated v. MARCO & FAMILY TIRES AUTO MECHANIC LLC, MARCO
PRENSA, and ZULAIKA HERRERA ALMONTE, Case No. 2:23-cv-00231
(D.N.J., Jan. 17, 2023), is brought seeking equitable and legal
relief for Defendants' violations of the Fair Labor Standards Act
of 1938 ("FLSA"); the New Jersey Wage and Hour Law ("NJWHL"); and
the New Jersey Wage Payment Law ("NJWPL"), by willfully failing to
pay the Plaintiff the applicable minimum wages for all hours
worked, overtime compensation for all hours worked in excess of 40
per week.
Despite routinely working more than 40 hours per week, the
Plaintiff was not paid overtime compensation of one and one-half
times their regular hourly rates of pay or the applicable minimum
wage rate, whichever is greater, for the hours they worked in
excess of 40 per week. The Defendants knew or should have known
that their failure to pay the Plaintiff minimum wages and overtime
wages was a violation of the FLSA and NJWHL and/or Defendants acted
in reckless disregard of the federal and state wage and hour laws.
The Defendants' refusal to pay the Plaintiff all wages owed to the
Plaintiff is an intentional and willful violation of federal and
state wage and hour laws, says the complaint.
The Plaintiff was employed by the Defendants as an auto mechanic
from February 1, 2021 until August 25, 2022.
MFTAM is a domestic limited liability company.[BN]
The Plaintiff is represented by:
Katherine Morales, Esq.
KATZ MELINGER PLLC
370 Lexington Avenue, Suite 1512
New York, NY 10017
Phone: (212) 460-0047
Facsimile: (212) 428-6811
Email: kymorales@katzmelinger.com
MAZDA MOTOR: Filing of Class Status Bid Extended to April 2
-----------------------------------------------------------
In the class action lawsuit captioned as LILIYA MARINOVA,
individually, and on behalf of all others similarly situated, v.
MAZDA MOTOR OF AMERICA, INC; and DOES 1 through 20, inclusive, Case
No. 8:22-cv-01453-FWS-JDE (C.D. Cal.), the Hon. Judge Fred W.
Slaughter entered an order regarding stipulation to vacate deadline
for class certification as follows:
-- The due date for the motion for class certification, as
dictated by the court's August 31, 2022, Order Setting
Rule 26(F) Scheduling Conference is extended by 30 days,
thereby extending the timeframe to file the motion for
class certification from no later than 120 days from the
date originally set for the Scheduling Conference to no
later than 150 days from the date originally set for the
Scheduling Conference.
-- Therefore, because the date originally set for the
Scheduling Conference was November 3, 2022, the motion for
class certification shall be filed on or before April 2,
2023 (150 days from November 3, 2022).
Mazda Motor is an international automotive manufacturer
A copy of the Court's order dated Jan. 13, 2022 is available from
PacerMonitor.com at https://bit.ly/3iFCyKO at no extra charge.[CC]
MAZDA MOTOR: Fuel Pump Recall Prompts Class Action Lawsuit
----------------------------------------------------------
David A. Wood, writing for CarComplaints.com, reports that a Mazda
fuel pump recall caused a class action lawsuit that has been
dismissed after the plaintiff sued on behalf of himself and other
Mazda owners.
In November 2021, a Mazda fuel pump recall was announced because
the DENSO pumps were defective and needed to be replaced. Mazda
told the government about 1% of the vehicles may have been equipped
with faulty fuel pumps.
DENSO and multiple automakers issued fuel pump recalls, but the
Mazda plaintiff insisted other 2013-2020 Mazda vehicles should have
been recalled.
The 2021 Mazda fuel pump recall included these models and model
years.
2018 Mazda Mazda3
2018 Mazda Mazda6
2019 Mazda CX-3
2018-2019 Mazda MX-5
2018-2019 Mazda CX-5
2018-2019 Mazda CX-9
2019-2020 Mazda Mazda2
The Mazda class action lawsuit was filed by Tamerlane T. Bey II,
who alleges all fuel pumps ending with part number 13350 are
defective.
The plaintiff says Mazda should have warned customers to park their
vehicles, and the automaker should have provided loaner cars to
customers until the fuel pumps were replaced.
The Mazda fuel pump recall was announced in November 2021, but
Mazda said it knew of only four vehicles that had fuel pump
problems as of September 2021.
Mazda Fuel Pump Class Action Lawsuit Dismissed
Plaintiff Tamerlane T. Bey II, filed the fuel pump lawsuit "pro
se," meaning on behalf of himself. But because it is a class action
lawsuit, the plaintiff said he was representing himself and other
Mazda customers.
Mazda filed a motion to dismiss the lawsuit but the plaintiff
didn't file a response.
Judge J. Paul Oetken dismissed the fuel pump class action by first
noting the lawsuit alleges other Mazda customers claim they took
their vehicles to Mazda for fuel pump problems. However, the
plaintiff didn't claim he took his vehicle to a Mazda dealer.
The judge also found the same details in the plaintiff's lawsuit
were "verbatim as to the experience of the named plaintiff in
another class action currently pending in California's Central
District, but with the substitution of Bey's name."
"Bey's complaint is, aside from the insertion of his own name and
vehicle purchase information, nearly word-for-word identical to the
first complaint filed in the California action. This explains some
idiosyncrasies of the complaint, such as references to "counsel,"
though Bey proceeds pro se, and references to multiple plaintiffs,
despite Bey proceeding alone." -- Judge Oetken
However, Judge Oetken dismissed the entire Mazda fuel pump lawsuit
because as "a pro se plaintiff, Bey cannot bring an action on
behalf of others."
The Mazda fuel pump class action lawsuit was filed in the U.S.
District Court for the Southern District of New York: Tamerlane T.
Bey II, v. Mazda Motor of America, Inc., et al.
The plaintiff is representing himself. [GN]
MEDIBANK PRIVATE: Law Firms Join Forces to File Data Breach Suit
----------------------------------------------------------------
Australian Associated Press reports that Australian law firms have
joined forces to run a landmark data breach complaint against
private health insurer Medibank.
Maurice Blackburn Lawyers, Bannister Law Class Actions and
Centennial Lawyers have united to run the data breach complaint
against Medibank which they say could secure compensation for as
many as 9.7 million affected customers.
Data from millions of current and former Medibank customers was
hacked in October, with the Russian ransomware group behind the
breach releasing the information in stages onto the dark web.
The three law firms have been investigating compensation claims and
say they have already registered tens of thousands of Medibank
customers.
Last November, Maurice Blackburn lodged a formal complaint against
Medibank with the Office of the Australian Information Commissioner
(OAIC), which has the power to order compensation.
Under the firms' co-operation agreement, they will now pursue the
OAIC complaint seeking compensation for those affected by the data
breach.
Bannister Law Class Actions principal Charles Bannister said he
hoped the co-operation agreement would lead swiftly to compensation
payments to the millions of Medibank customers whose data was
breached.
"We believe the data breach is a betrayal of Medibank Private's
customers and a breach of the Privacy Act. Medibank has a duty to
keep this kind of information confidential," Mr Bannister said.
Maurice Blackburn's head of class actions Andrew Watson said the
co-operation agreement was a significant development.
"This data breach has caused millions of Australians significant
distress," he said.
"The co-operation agreement ensures that all three law firms are
working together for the common aim of obtaining compensation for
those affected as quickly as possible."
A Medibank representative said the company was continuing to
co-operate with the OAIC.
"Medibank continues to support its customers from the impact of
this crime through our previously announced Cyber Response Support
Program which includes mental health and wellbeing support,
identity protection and financial hardship measures," the
representative said. [GN]
MEDICAL SECURITY: Extension of Discovery Deadlines Sought
---------------------------------------------------------
In the class action lawsuit captioned as SASB CORPORATION d/b/a
OKEECHOBEE DISCOUNT DRUG, individually and as the representative of
a class of similarly-situated persons, v. MEDICAL SECURITY CARD
COMPANY, LLC, Case No. 2:22-cv-14206-AMC (S.D. Fla.), the Parties
ask the Court to enter an order extending the deadlines for class
certification-related discovery and for the filing of a class
certification motion by 30 days.
-- The Parties request that the Court extend the deadline
for class certification discovery to April 3, 2023, and for
the Plaintiff to file its class certification motion to
April 17, 2023, and for such further relief as the Court
deems appropriate.
The Plaintiff served written discovery requests on Defendant on
December 8, 2022. Due to the holidays, the volume of information
requested, and counsel's pre-paid family vacation, the Defendant
has been unable to gather all of the information necessary to
respond Plaintiff's requests.
Accordingly, the Defendant reached out to the Plaintiff to request
an extension to February 8, 2023, to respond to the discovery
requests.
Under the Court's scheduling order, class discovery must be
completed by March 2, 2023, and Plaintiff's class certification
brief must be filed by March 16, 2023.
The Plaintiff anticipates needing to conduct depositions after
receiving the Defendant's responses and documents prior to filing
its class certification brief.
A copy of the Parties' motion dated Jan. 13, 2022 is available from
PacerMonitor.com at https://bit.ly/3ZQbzgu at no extra charge.[CC]
The Plaintiff is represented by:
Phillip A. Bock, Esq.
BOCK HATCH & OPPENHEIM, LLC
820 W 41st St, #318
Miami Beach, FL 33140
Telephone: (305) 239-8726
E-mail: phil@classlawyers.com
service@classlawyers.com
The Defendant is represented by:
Julia M. Wischmeier, Esq.
Zachary Foster, Esq.
Jacob Bradley, Esq.
QUARLES & BRADY LLP
101 East Kennedy Blvd., Suite 3400
Tampa, FL 33602
Telephone: 813-384-6726
E-mail: Julia.Wischmeier@quarles.com
zachary.foster@quarles.com
Jacob.bradley@quarles.com
MIDLAND CREDIT: Spence Files Suit Over Deceptive Collection Letters
-------------------------------------------------------------------
WebRecon of AccountsRecovery.net reports that class action accuses
collector of using Inaccurate name of original creditor in the
case-captioned Danielle Spence, individually and on behalf of all
others similarly situated vs. Johnson Mark LLC, Midland Credit
Management, Inc. with case number Civil Action No: 2:22-cv-821.
A class-action complaint has been filed in federal court in Utah
against a collection law firm for allegedly violating the Fair Debt
Collection Practices Act with its Model Validation Notice, which
was not dated, but also because the debt was allegedly purchased
before the notice was sent, and the complaint alleges the phrase
"you had an account from" that company is technically not accurate.
You may also find the MVN used in this case interesting because it
has a few differences from the CFPB's Model Validation Notice --
none of which were mentioned in the complaint.
The plaintiff received a Model Validation Notice from the
defendant. The complaint alleges the notice fails to identify the
original creditor and instead uses the name of the company that
purchased the debt from the original creditor. The complaint
alleges the phrase "You had an account from . . ." is false,
misleading, and/or deceptive because the plaintiff never had an
account with that company. The notice does include a disclaimer
that "Midland Credit Management, Inc. has purchased the
above-referenced account and is the current creditor. "
The complaint also alleges that the defendant violated the FDCPA
because, without a date, the plaintiff had no way to determine what
"today" and "now" referred to in the notice, which was allegedly
misleading.
The complaint accuses the defendant of violating Sections 1692d,
1692e, 1692e(2)(A), 1692e(10), and 1692f of the FDCPA. It seeks to
include anyone else who received a similar undated MVN in reference
to a debt owed by the creditor named in this notice.
One interesting sidenote is that the defendant altered the standard
MVN to include QR codes to a customer portal so the recipient could
chat with a representative and to its payment portal. [GN]
MIGUEL CARDONA: Intervenors Seek Stay of Judgment Pending Appeal
----------------------------------------------------------------
In the class action lawsuit captioned as THERESA SWEET, et al., v.
MIGUEL CARDONA, in his official capacity as Secretary of Education,
and the UNITED STATES DEPARTMENT OF EDUCATION, Case No.
3:19-cv-03674-WHA (N.D. Cal.), the Intervenors request that the
Court grant their motion to stay the judgment pending appeal, or,
in the alternative, to stay the judgment as to Intervenors.
The Intervenors are Lincoln Educational Services Corporation,
Everglades College, Inc., and American National University
The Plaintiffs filed this lawsuit to challenge "a policy of
inaction" on their BD claims. Later, the Plaintiffs supplemented
the Complaint to also challenge the use of "form denials" for a
subset of claims.
By the time the proposed settlement was lodged, however, these
claims were moot because the Department had long abandoned any
alleged policy of inaction -- indeed, it has granted tens of
thousands of BD applications in the last two years -- and agreed to
reconsider all alleged form denials.
The Plaintiffs received the relief they requested in the
Complaints, this case was moot. This Court found the case not to be
moot because the Department has not yet finally adjudicated every
single Class member's BD application.
A copy of the Intervenors' motion dated Jan. 13, 2022 is available
from PacerMonitor.com at https://bit.ly/3H7RBWV at no extra
charge.[CC]
The Plaintiffs are represented by:
James L. Zelenay, Jr., Esq.
Lucas Townsend, Esq.
GIBSON, DUNN & CRUTCHER LLP
333 South Grand Avenue
Los Angeles, CA 90071
Telephone: (213) 229-7449
E-mail: jzelenay@gibsondunn.com
ltownsend@gibsondunn.com
- and -
Jesse Panuccio, Esq.
Jason Hilborn, Esq.
John J. Kucera, Esq.
BOIES SCHILLER FLEXNER LLP
401 E. Las Olas Blvd., Ste. 1200
Fort Lauderdale, FL 33301
Telephone: (954) 356-0011
E-mail: jpanuccio@bsfllp.com
jhilborn@bsfllp.com
jkucera@bsfllp.com
- and -
John S. Moran, Esq.
Piper A. Waldron, Esq.
MCGUIRE WOODS LLP
888 16th St. N.W., Suite 500
Black Lives Matter Plaza
Washington, D.C. 20006
Telephone: (202) 828-2817
E-mail: jmoran@mcguirewoods.com
pwaldron@mcguirewoods.com
MYLOCKER.COM LLC: Standing Order Entered on Patagonia Class Suit
----------------------------------------------------------------
In the class action lawsuit captioned as Patagonia, Inc., v.
MyLocker.com LLC, Case No. 2:23-cv-00219-JFW-JPR (C.D. Cal.), the
Hon. Judge JOHN F. WALTER entered a standing order as follows::
-- The plaintiff shall promptly serve the Complaint in
accordance with Fed.R.Civ.P. 4 and shall file the proof(s)
of service pursuant to the Local Rules.
-- Lead trial counsel shall attend all proceedings before this
Court and all Local Rule 7-3, scheduling, status, and
settlement conferences.
-- All discovery matters have been referred to a United
States Magistrate Judge.
-- Motions shall be filed in accordance with the Local Rules.
-- Not more than two days after the deadline for filing the
Reply, each party shall lodge a Proposed Statement of
Decision, which shall contain a statement of the relevant
facts and applicable law with citations to case law and the
record.
-- Motions for Class Certification shall be filed within 120
days after service of a pleading purporting to commence a
class action (or if applicable 120 days after service of
the Notice of Removal), unless otherwise ordered by the
Court.
Patagonia is an American retailer of outdoor clothing. It was
founded by Yvon Chouinard in 1973 and is based in Ventura,
California.
Mylocker.com (trade name Customcat) is in the letterpress and
screen printing business.
A copy of the Court's order dated Jan. 13, 2022 is available from
PacerMonitor.com at https://bit.ly/3XvNpFW at no extra charge.[CC]
NATIONAL MENTOR: Scheduling Order Entered in Hagans Class Suit
--------------------------------------------------------------
In the class action lawsuit captioned as JOHN HAGANS et al., v.
NATIONAL MENTOR HEALTHCARE, INC., et al., Case No.
1:22-cv-00128-KMW-SAK (D.N.J.), the Hon. Judge Sharon A. King
entered a scheduling order as follows:
-- Pretrial factual discovery is April 13, 2003
extended to:
-- All affirmative expert reports May 12, 2023
on class certification and
merits based expert reports
counsel for the Defendants no
later than:
-- Deposition of proposed class Sept. 13, 2023
certification and merits based
expert witness shall be
concluded by:
Dispositive motions shall Nov. 14. 2023
be filed with the Clerk
of the Court no later than:
Class Certification motions Nov. 14, 2023
shall be filed with the
Clerk of the Court no later
than:
National Mentor operates as a holding company.
A copy of the Court's order dated Jan. 13, 2022 is available from
PacerMonitor.com at https://bit.ly/3w89wqs at no extra charge.[CC]
NEW JERSEY: Law School Students Played Role in Abuse Suit Deal
--------------------------------------------------------------
Rutgers News Service reports that Rutgers and Seton Hall law school
students played a crucial role in a $20.8 million settlement
providing compensation to women who recently served time at the
Edna Mahan Correctional Facility for Women, where there has been a
systemic culture of abuse.
Rampant sexual misconduct, assault and abuse by corrections
officers and staff over decades have yielded civil lawsuits and
criminal convictions.
The facility in Hunterdon County was also the subject of a 2020
federal report which found sexual abuse of inmates to be an "open
secret" among staff and inmates. Those who reported such abuse were
removed from their cells and placed in isolation as a matter of
policy as punishment for speaking out.
In the wake of these disclosures, the state Department of
Corrections settled a class action lawsuit, allowing any woman
imprisoned since Jan. 1, 2014 to file for compensation between
$1,000 and $250,000, provided they never filed a previous claim
related to sexual misconduct or a hostile environment at the
facility.
The settlement created a significant task to find, interview, and
file claims for the hundreds of current and former inmates eligible
for compensation - a difficult and emotional task undertaken by
Rutgers Law students in partnership with Seton Hall Law.
"It was extraordinarily traumatic for the women to relive their
experiences in the prison, as well as the underlying assaults many
of them had experienced throughout their lives," said Chelsea
Fadio, a third-year Rutgers Law student.
"Being able to advocate for these women and make sure their stories
were heard was really the most important aspect for me. This was
about more than just enhancing my law school experience. This was
about enabling women who have been overlooked and disenfranchised
to have their voices and stories heard," Fadio said.
Rutgers' involvement began when plaintiffs' counsel Oliver Barry, a
2013 law school graduate, approached Associate Dean of Pro Bono and
Public Interest Jill Friedman to see if students could assist
claimants in completing the affidavits needed to file to receive
funds.
"As soon as Oliver and I agreed to do the project, we immediately
brought in Seton Hall Law School to make this a statewide effort,"
Friedman said. "We were incredibly proud to collaborate with them.
They jumped on board immediately and enthusiastically and handled
almost all the administration of the project. And their students
were fantastic."
The project enlisted 15 students from each of the law schools.
Students received intensive training that covered the details of
the settlement, their expected duties, and trauma-informed
lawyering techniques.
They were then assigned claimants to interview and assist. Students
worked in pairs, along with a supervising attorney, to collect as
much information as they could about each claimant's story. They
drafted affidavits, obtained supporting documents, including
medical and court records, and offered emotional support -
sometimes checking in with claimants every day or multiple times a
day leading up to their hearings.
Students and a supervising attorney accompanied clients on Zoom
proceedings to provide support, guide them through the telling of
their story, and ensure every point was made as clearly as possible
to get the best result in front of the Special Master. In the end,
students participated in about 100 hearings.
"I can't rate the students high enough," says claimant Kim Brewer,
who worked with Rutgers Law students to file a claim. "They walked
me through everything and helped me feel comfortable even when
discussing things that are very uncomfortable to speak about."
The experience gave students a lesson into what it is like to work
with clients.
"I learned what social change through litigation looks like," said
Crystal Mor Henwood, a third year Newark-based law student, "and
that includes the pros as well as the cons."
For some women, telling their story and having it affirmed by the
court also provided a measure of healing.
"It took real bravery by the women to share their stories after
years of being silenced," Henwood said "After all, reliving trauma
can be an emotionally risky journey, and the fact that the prison
remains open is deeply disturbing."
While the hearings might be over, the work is far from done. Many
claimants require additional resources, from mental and physical
health services to financial training, housing, and substance use
treatment.
"The settlement money alone does not fix the issue," Fadio said.
"It has brought the injustices to light, but it doesn't right the
wrongs that have been done." [GN]
OCEAN AVENUE: Bamla Sues Over Unpaid Overtime Compensation
----------------------------------------------------------
Ty Bamla, on behalf of himself and all others similarly situated,
and on behalf of the general public v. OCEAN AVENUE LLC, a Delaware
Limited Liability Company, and DOES 1 through 10, inclusive, Case
No. 23STCV01000 (Cal. Super. Ct., Los Angeles Cty., Jan. 17, 2023),
is brought against the Defendant violation of the California Labor
Code by failing to pay the Plaintiff overtime compensation and by
failing to provide uninterrupted 30-minute meal breaks.
The Plaintiff and the Defendant's California employees were
routinely unable, and not authorized to take their 10-minute rest
periods and were also unable to take an uninterrupted 30-minute
meal break for every shift they worked. Specifically, the Plaintiff
and the Defendant's California employees were forced to continue
working through their meal and rest breaks in order to assist
Defendant's needs. Because of this, Plaintiff and Defendant's
California employees were unable to take their required meal and
rest breaks. Moreover, the Defendants failed to pay premium wages
of one hour's pay for each missed meal and rest break to the
Plaintiff and the Defendant's California employees who were denied
timely meal and rest breaks, in violation of Labor Code.
The Plaintiff also claims that Defendant has failed to pay all
overtime wages due to non-exempt employees. As a result, employees
are not properly compensated for work performance in excess of 8
hours in a workday and work performed in excess of 40 hours in a
workweek at a rate of no less than one and one-half times the
regular rate of pay, says the complaint.
The Plaintiff was employed by the Defendants as a non-exempt,
hourly employee in California.
Ocean Avenue LLC, is a Delaware Limited Liability Company doing
business in Santa Monica, California.[BN]
The Plaintiff is represented by:
Roman Otkupman, Esq.
Nidah Farishta, Esq.
OTKUPMAN LAW FIRM, A LAW CORPORATION
5743 Corsa Ave., Suite 123
Westlake Village, CA 91362
Phone: (818) 293-5623
Facsimile: (888) 850-1310
Email: Roman@OLFLA.com
Nidah@OLFLA.com
OLIN CORP: Bid to Extend Class Cert Discovery Deadlines OK'd
------------------------------------------------------------
In the class action lawsuit captioned as ROBERT DAVIS, ET AL. v.
OLIN CORPORATION, ET AL., Case No. 3:22-cv-00374-BAJ-RLB (M.D.
La.), the Hon. Judge Richard L. Bourgeois, Jr. entered an order
granting the joint motion to extend class certification discovery
deadlines, and amending the scheduling order as follows:
1. The deadline to join other parties Expired
or to amend the pleadings:
2. Exchanging initial disclosures Expired
required by F.R.C.P. 26(a)(1):
3. Class Certification Discovery Sept. 18, 2023
Filing a motion for class
certification:
4. The Defendant's Memorandum in Nov. 2, 2023
Opposition to class certification:
5. Plaintiff's Reply Memorandum: Nov. 16, 2023
6. Proposed hearing date for class Dec. 4, 2023.
certification:
7. Filing all discovery motions and April 21, 2023
completing all discovery except
experts:
8. Disclosure of identities and
resumes of experts:
Plaintiff(s): May 5, 2023
Defendant(s): June 6, 2023
9. Expert reports must be submitted
to opposing parties as follows:
Plaintiff(s): June 21, 2023
Defendant(s): July 21, 2023
10. Discovery from experts must be Sept. 1, 2023
completed by:
Olin Corp is an American manufacturer of ammunition, chlorine, and
sodium hydroxide.
A copy of the Court's order dated Jan. 13, 2022 is available from
PacerMonitor.com at https://bit.ly/3XC0cGK at no extra charge.[CC]
PAW BRANDS LLC: Fontanez Files ADA Suit in S.D. New York
--------------------------------------------------------
A class action lawsuit has been filed against Paw Brands, LLC. The
case is styled as Ramon Fontanez, individually, and on behalf of
all others similarly situated v. Paw Brands, LLC, Case No.
1:23-cv-00417-JGK (S.D.N.Y., Jan. 17, 2023).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Paw Brands -- https://pawbrands.com/ -- is the wholesale division
of award-winning designer and manufacturer of innovative pet
products.[BN]
The Plaintiff is represented by:
William Downes, Esq.
MIZRAHI KROUB LLP
225 Broadway, Ste. 39th Floor
New York, NY 10007
Phone: (212) 595-6200
Email: wdownes@mizrahikroub.com
PEAK TECHNICAL: Walker Files Suit in Cal. Super. Ct.
----------------------------------------------------
A class action lawsuit has been filed against Peak Technical
Services, Inc. The case is styled as Darius Walker, on on behalf of
all other similarly situated v. Peak Technical Services, Inc., Peak
Technical Services L.P., Emsar Biomedical Services Inc., Does
1-100, Case No. 34-2023-00333158-CU-OE-GDS (Cal. Super. Ct.,
Sacramento Cty., Jan. 17, 2023).
The case type is stated as "Other Employment - Civil Unlimited."
PEAK Technical -- https://www.peaktechnical.com/ -- is one of the
leading information technology and engineering recruiting agencies,
places top talent into rewarding careers.[BN]
The Plaintiff is represented by:
Michael R. Crosner, Esq.
MICHAEL R. CROSNER A LAW CORP
9440 Santa Monica Blvd., Ste. 301
Beverly Hills, CA 90210-4614
Phone: 818-515-2382
Fax: 310-510-6429
Email: mrclawyer@aol.com
PENSAR BIG: Faces Sweat Suit Over Shift Managers' Unpaid Wages
--------------------------------------------------------------
CATHERINE SWEAT, on behalf of herself and other similarly situated
aggrieved employees, Plaintiff v. PENSAR BIG, INC.; CARMEN HUERTA;
and DOES 1 to 25, inclusive, Defendants, Case No. 23STCV00616 (Cal.
Super., Los Angeles Cty., January 11, 2023) is a class action
arising from the Defendants' unlawful labor practices in violation
of the California Labor Code and the California Business and
Professions Code.
The Plaintiff alleges the Defendants' failure to compensate for all
hours worked; failure to pay minimum wages; failure to pay
overtime; failure to provide accurate itemized wage statements;
failure to pay wages owed every pay period; failure to pay wages
when employment ends; failure to give rest breaks; failure to give
meal breaks; failure to reimburse business expenses; failure to
provide personnel records; and failure to provide pay records.
The Plaintiff was classified as an hourly non-exempt employee and
her latest position was that of "shift manager."
Pensar Big, Inc. was founded in 1998. The Company's line of
business includes the retail sale of prepared foods and drinks for
on-premise consumption.[BN]
The Plaintiff is represented by:
Harout Messrelian, Esq.
MESSRELIAN LAW INC.
500 N. Central Ave., Suite 840
Glendale, CA 91203
Telephone: (818) 484-6531
Facsimile: (818) 956-1983
E-mail: hm@messrelianlaw.com
PFIZER INC: Walter Suit Transferred to S.D.N.Y.
-----------------------------------------------
The case styled DAPHNE WALTER, individually and on behalf of all
others similarly situated, Plaintiff v. PFIZER, INC., Defendant,
Case No. 3:22-cv-01708, was transferred from the United States
District Court for the District of Oregon to the United States
District Court for the Southern District of New York on January 10,
2023.
The Clerk of Court for the Southern District of New York assigned
Case No. 1:23-cv-00206-KPF to the proceeding.
This is a class action lawsuit regarding Defendant's manufacturing,
distribution, and sale of varenicline-containing medications under
the brand name Chantix(R) that allegedly contain dangerously high
levels of N-nitroso-varenicline, a carcinogenic impurity.
Pfizer Inc. is an American multinational pharmaceutical and
biotechnology corporation headquartered at 42nd Street in
Manhattan, New York City.[BN]
The Plaintiff is represented by:
Joseph E. Piucci, Esq.
PIUCCI LAW
900 SW 13th Avenue, Suite 200
Portland, OR 97205
Telephone: (503) 701-0357
Facsimile: (503) 228-2571
The Defendant is represented by:
Anthony A. Todaro, Esq.
DLA Piper LLP (US)
701 5th Avenue, Suite 7000
Seattle, WA 98104
Telephone: (206) 839-4830
Facsimile: (206) 839-4801
PRAIRIE HOME: Burayi Sues Over Resident Aides' Unpaid Wages
-----------------------------------------------------------
STEPHANIE BURAYI, on behalf of herself and all others similarly
situated, Plaintiff v. PRAIRIE HOME ELDER SERVICES, LLC, Defendant,
Case No. 1:23-cv-00035-WCG (E.D. Wis., January 10, 2023) is a
collective and class action brought pursuant to the Fair Labor
Standards Act and Wisconsin's Wage Payment and Collection Laws by
Plaintiff, on behalf of herself and all other similarly situated,
seeking relief for unpaid overtime compensation, unpaid straight
time (regular) and/or agreed upon wages, liquidated damages, costs,
attorneys' fees, declaratory and/or injunctive relief, and/or any
such other relief the Court may deem appropriate.
The Plaintiff was employed by the Defendant as an hourly-paid,
non-exempt employee in November 2020 in the position of resident
aide working at Defendant's Menasha, Wisconsin location. In
approximately January 2023, Plaintiff's employment with Defendant
ended.
Prairie Home Elder Services, LLC is an assisted living facility
with a principal place of business in Menasha, Wisconsin.[BN]
The Plaintiff is represented by:
James A. Walcheske, Esq.
Scott S. Luzi, Esq.
David M. Potteiger, Esq.
WALCHESKE & LUZI, LLC
235 N. Executive Drive, Suite 240
Brookfield, WI 53005
Telephone: (262) 780-1953
Facsimile: (262) 565-6469
E-mail: jwalcheske@walcheskeluzi.com
sluzi@walcheskeluzi.com
dpotteiger@walcheskeluzi.com
RICHARD T. AVIS: Baeza Files FDCPA Suit in W.D. Texas
-----------------------------------------------------
A class action lawsuit has been filed against Richard T. Avis,
Attorney & Associates, LLC. The case is styled as Salome Baeza
a/k/a Salome Baeza Jacquez, individually and on behalf of all
others similarly situated v. Richard T. Avis, Attorney &
Associates, LLC, Case No. 7:23-cv-00013 (W.D. Tex., Jan. 17,
2023).
The lawsuit is brought over alleged violation of the Fair Debt
Collection Practices Act.
Richard T. Avis, Attorney & Associates -- https://avislawgroup.com/
-- is a law firm specializing in Breach of Contract Law and
Commercial Litigation since 1993 in both Illinois and Florida.[BN]
The Plaintiff is represented by:
Yaakov Saks, Esq.
STEIN SAKS, PLLC
One University Plaza, Suite 620
Hackensack, NJ 07601
Phone: (201) 282-6500
Email: ysaks@steinsakslegal.com
RIVIER UNIVERSITY: Murphy Files ADA Suit in S.D. New York
---------------------------------------------------------
A class action lawsuit has been filed against Rivier University.
The case is styled as James Murphy, for himself and on behalf of
all other persons similarly situated v. Rivier University, Case No.
1:23-cv-00409-PGG-SLC (S.D.N.Y., Jan. 17, 2023).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Rivier University -- https://www.rivier.edu/ -- is a private
Catholic liberal arts university in Nashua, New Hampshire.[BN]
The Plaintiff is represented by:
Jeffrey Michael Gottlieb, Esq.
Michael A. LaBollita, Esq.
GOTTLIEB & ASSOCIATES
150 E. 18 St., Suite PHR
New York, NY 10003
Phone: (212) 228-9795
Fax: (212) 982-6284
Email: nyjg@aol.com
michael@gottlieb.legal
ROADRUNNER TRANSPORTATION: Gomez Labor Suit Removed to N.D. Cal.
----------------------------------------------------------------
The case styled FERNANDO GOMEZ, on behalf of himself and all others
similarly situated, Plaintiff v. ROADRUNNER TRANSPORTATION
SERVICES, INC., a Delaware Corporation, Defendants, Case No.
CGC-18-571755, was removed from the Superior Court of the State of
California, County of San Francisco, to the United States District
Court for the Northern District of California on January 10, 2023.
The Clerk of Court for the Northern District of California assigned
Case No. 3:23-cv-00119-DMR to the proceeding.
The complaint asserts causes of action for willful
misclassification of Plaintiffs and Class members in violation of
the California Labor Code including failure to pay minimum wages,
failure to pay wages upon termination of employment, failure to
provide meal periods, and failure to provide rest periods; as well
as unfair business practices in violation of the Cal. Bus. & Prof.
Code.
Roadrunner Transportation Services is an asset-light transportation
and logistics service provider.[BN]
The Defendant is represented by:
Christopher C. McNatt, Jr., Esq.
SCOPELITIS, GARVIN, LIGHT, HANSON & FEARY, LLP
2 North Lake Avenue, Suite 560
Pasadena, CA 91101
Telephone: (626) 795-4700
Facsimile: (626) 795-4790
E-mail: cmcnatt@scopelitis.com
- and -
Adam C. Smedstad, Esq.
E. Ashley Paynter, Esq.
SCOPELITIS, GARVIN, LIGHT, HANSON & FEARY, P.C.
5470 Shilshole Avenue NW, Suite 520
Seattle, WA 98107
Telephone: (206) 288-6192
Facsimile: (206) 299-9375
E-mail: asmedstad@scopelitis.com
apaynter@scopelitis.com
ROSEVILLE, CA: Pretrial Scheduling Order Entered in Hill-Colbert
----------------------------------------------------------------
In the class action lawsuit captioned as MARCUS HILL-COLBERT,
JENNIFER TIMMONS, HERMINIO LEBRON, DANIEL REED, VINCENT BARNAO,
ERIN MCMARLIN, and JAMES THOMPSON, on behalf of themselves and a
class of similarly situated persons, v. CITY OF ROSEVILLE,
ROSEVILLE POLICE DEPARTMENT, TYLER CANTLEY, and DOE 1-20, Case No.
2:22-cv-01651-WBS-DB (E.D. Cal.), the Hon. Judge William B. Shubb
entered an order vacating the status (Pretrial Scheduling)
Conference scheduled for January 17, 2023, and makes the following
findings and orders without needing to consult with the parties any
further.
-- The court denied that plaintiff's motion for preliminary
injunction because plaintiff failed to show irreparable
harm.
-- The parties agree to serve the initial disclosures
required by Federal Rule of Civil Procedure 26(a)(1) on or
before February 16, 2023.
-- The parties shall disclose experts and produce reports
in accordance with Federal Rule of Civil Procedure 26(a)(2)
by no later than April 26, 2024.
-- The parties proposed May 15, 2023 as the hearing date
for plaintiffs' motion for a permanent injunction.
A copy of the Court's order dated Jan. 13, 2022 is available from
PacerMonitor.com at https://bit.ly/3iHC5I5 at no extra charge.[CC]
SHIELDS HEALTH: Faces Class Action Over Alleged $1.9M Data Breach
-----------------------------------------------------------------
Steve Alder of HIPAA Journal reports that consolidated class action
lawsuits filed against Shields Health Care Group sued over $1.9
million-record data breach. Multiple lawsuits have been filed
against Massachusetts-based Shields Health Care Group, which
suffered one of the largest healthcare data breaches of the year,
affecting almost 2 million individuals. Seven of the lawsuits have
recently been consolidated into a single lawsuit - Biscan v.
Shields Health Care Group Inc - that was filed in a Massachusetts
federal court this week. The lawsuit covers all individuals
affected by the data breach who did not live in Massachusetts at
the time of the breach. A second lawsuit has been filed in state
court that covers Massachusetts residents.
Shields Health Care Group provides MRI, PET/CT, radiation oncology,
and surgical services to healthcare practices, around 60 of which
were affected by the breach. Hackers gained access to its network
and stole the protected health information of patients over a
two-week period in March 2022. The stolen data included names,
contact information Social Security numbers, insurance information,
billing information, and clinical information such as diagnoses and
treatment information. Affected individuals were offered a 2-year
membership to a credit monitoring service.
The plaintiffs allege Shields Health Care Group failed to implement
appropriate safeguards to prevent unauthorized access to highly
sensitive patient data and then failed to issue timely
notifications to patients to inform them that their data was in the
hands of cybercriminals and that the notification letters did not
provide adequate information to allow the affected individuals to
take appropriate action to assess and mitigate risk.
The lawsuits allege Shields Health Care Group was fully aware of
the risk of hacking and ransomware attacks on healthcare
organizations given the multiple security alerts issued by the FBI,
CISA, and the HHS, yet failed to implement adequate measures to
reduce risk, which was in violation of its obligations under the
HIPAA Security Rule.
Shields Health Care Group said a security alert was triggered on
March 18, 2022, which was investigated but no breach was detected,
then suspicious activity was identified within its network on March
28, 2022. The investigation confirmed patient data had been
compromised notifications were issued to affected individuals on
June 7, 2022, outside the reporting time frame of the HIPAA Breach
Notification Rule.
The lawsuits claim notifications were untimely, and deficient in
information, failing to even provide basic information about the
breach, such as whether patient data on the servers were accessed.
The lawsuit also alleges the credit monitoring services offered
were inadequate given that affected individuals face many years of
ongoing identity theft.
While many lawsuits are filed based on future risk of harm, the
plaintiffs claim to have suffered financial losses as a result of
the breach and have had to spend a significant amount of time
monitoring their financial accounts. One plaintiff said suspicious
activity was identified in his email account and he had thousands
of dollars of fraudulent charges to his Bank of America account,
and another plaintiff claims to have been targeted by scammers over
the phone since the data breach.
The lawsuits allege negligence, breach of contract, invasion of
privacy by intrusion, and breach of fiduciary duty, and seeks class
action status, damages, and injunctive relief. [GN]
SNAPCOMMERCE GOODS: Khargie Files Suit in N.D. California
---------------------------------------------------------
A class action lawsuit has been filed against Snapcommerce Goods,
Inc. The case is styled as James Khargie, individually and on
behalf of all others similarly situated v. Snapcommerce Goods,
Inc., Case No. 3:23-cv-00208 (N.D. Cal., Jan. 17, 2023).
The nature if suit is stated as Other P.I. for Personal Injury.
Snapcommerce -- http://snapcommerce.shop/-- is the mobile commerce
platform that uses AI to connect price-conscious consumers to the
best deals online.[BN]
The Plaintiff is represented by:
Frank S. Hedin, Esq.
HEDIN HALL LLP
1395 Brickell Ave., Suite 1140
Miami, FL 33131
Phone: (305) 357-2107
Fax: (305) 200-8801
Email: fhedin@hedinhall.com
SOUTHWEST AIRLINES: Bids for Lead Plaintiff Naming Due March 13
---------------------------------------------------------------
Business Wire of Valdosta Daily Times reports that Rosen Law Firm,
a global investor rights law firm, announces it has filed a class
action lawsuit on behalf of purchasers of the securities of
Southwest Airlines Co. (NYSE: LUV) between June 13, 2020 and
December 31, 2022, both dates inclusive (the "Class Period"). The
lawsuit seeks to recover damages for Southwest Airlines investors
under the federal securities laws.
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) Southwest Airlines continuously
downplayed or ignored the serious issues with the technology it
used to schedule flights and crews, and how it stood to be affected
worse than other airlines in the event of inclement weather; and
(2) it did not discuss how it's unique point-to-point service and
aggressive flight schedule could leave it prone in the event of
inclement weather; and (3) as a result, 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 March 13,
2023. A lead plaintiff is a representative party acting on behalf
of other class members in directing the litigation.
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.
If you wish to join the litigation, go to
https://rosenlegal.com/submit-form/?case_id=10716 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.
CONTACT: Information: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]
SPOTIFY USA: Saleh Wiretapping Suit Removed to D.N.J.
-----------------------------------------------------
The case styled MOHAMED SALEH, on behalf of himself and all others
similarly situated, Plaintiff v. SPOTIFY USA INC., Defendant, Case
No. BER-L006625-22, was removed from the Superior Court of New
Jersey, Bergen County, to the United States District Court for the
District of New Jersey on January 11, 2023.
The Clerk of Court for the District of New Jersey assigned Case No.
2:23-cv-00147 to the proceeding.
The complaint is brought for Defendant's alleged violations of the
Federal Wiretap Act and the Video Privacy Protection Act.
Spotify USA Inc. provides an entertainment software. The Company
offers platform that enables users to find music on their phones,
computers, and tablets.[BN]
The Defendant is represented by:
Timothy M. Haggerty, Esq.
Jason C. Rubinstein, Esq.
Mala Ahuja Harker, Esq.
Sofia G. Syed, Esq.
FRIEDMAN KAPLAN SEILER & ADELMAN LLP
One Gateway Center, 25th Floor
Newark, NJ 07102-5311
Telephone: (973) 877-6400
STABILITY AI: Faces Class Action in Calif. Over Artists' Copyright
------------------------------------------------------------------
Brian Cronin, writing for CBR, reports that a lawsuit on behalf of
a group of plaintiff artists has been filed in the United States
District Court for the Northern District of California against
three companies: Stability AI, DeviantArt, and Midjourney, over the
alleged infringement of the copyright of the artists in the
creation of so-called "artificial intelligence" art.
"As burgeoning technology continues to change every aspect of the
modern world, it's critical that we recognize and protect the
rights of artists against unlawful theft and fraud. This case
represents a larger fight for preserving ownership rights for all
artists and other creators." said Joseph Saveri, founder of the
Joseph Saveri Law Firm, LLP, who is representing the plaintiffs
along with Matthew Butterick, and Lockridge, Grindal, Nauen
P.L.L.P.
What Is the Basis for This Legal Claim Against A.I. Art?
The three companies all share the use of Stable Diffusion, an
artificial intelligence product that was based on the billion of
images contained in the LAION-5B dataset. The lawsuit alleges that
there are billions of copyrighted images involved in the creation
of Stable Diffusion. Therefore, the lawsuit alleges the use of
those images leads to direct copyright infringement, vicarious
copyright infringement related to forgeries, violations of the
Digital Millennium Copyright Act (DMCA), violation of class
members' rights of publicity, breach of contract related to the
DeviantArt Terms of Service, and various violations of California's
unfair competition laws.
Not only is the lawsuit seeking damages for the alleged violations,
but want an injunction to avoid future problems until some sort of
system could be created that would allow for artists to be fairly
compensated for their artwork being used in "A.I. art." As the
claim alleges, music streaming services have found a way to
compensate musical artists, so there should be a way for this to
work, as well.
One of the Plaintiffs Speaks Out About the Case
One of the artist plaintiffs in the case, Karla Ortiz, took to
social media to discuss her excitement about the lawsuit.
She noted, "I am proud to be one of the plaintiffs named for this
class action suit. I am proud to do this with fellow peers, that
we'll give a voice to potentially thousands of affected artists.
I'm proud that now we fight for our rights not just in the public
sphere but in the courts!" [GN]
STATEWIDE COLLECTION: Silber Files FDCPA Suit in S.D. New York
--------------------------------------------------------------
A class action lawsuit has been filed against Statewide Collection
Service, Inc. The case is styled as Avrum Silber, individually and
on behalf of all others similarly situated v. Statewide Collection
Service, Inc., Case No. 7:23-cv-00414-CS (S.D.N.Y., Jan. 17,
2023).
The lawsuit is brought over alleged violation of the Fair Debt
Collection Practices Act.
Statewide Collection Service --
https://www.statewidecollectionservice.com/home/e2/ -- is a
collection agency located in Salisbury, North Carolina.[BN]
The Plaintiff is represented by:
Christofer Merritt, Esq.
STEIN SAKS, PLLC
1 University Plaza, Suite 620
Hackensack, NJ 07601
Phone: (201) 282-6500
Email: ysaks@steinsakslegal.com
SUPERIOR TANK CO: Rodriguez Files Suit in Cal. Super. Ct.
---------------------------------------------------------
A class action lawsuit has been filed against Superior Tank Co.,
Inc. The case is styled as Sergio Rodriguez, an individual, on
behalf of himself and on behalf of all persons similarly situated
v. Superior Tank Co., Inc., Case No. BCV-23-100144 (Cal. Super.
Ct., Kern Cty., Jan. 17, 2023).
The case type is stated as "Other Employment - Civil Unlimited."
Superior Tank -- https://superiortank.com/ -- can help with
everything for water and oil storage; from tank engineering, bolted
& welded tank manufacturing and tank installation.[BN]
TRANS UNION: Scheduling Order Entered in Thompson Class Suit
------------------------------------------------------------
In the class action lawsuit captioned as KEITH THOMPSON v. TRANS
UNION, LLC, Case No. 3:22-cv-00584-CRS-CHL (W.D. Ky.), the Hon.
Judge Charles R. Simpson III entered an scheduling order on
parties' proposed planning schedule outline and referral order as
follows:
1. Pre-Discovery Disclosures: To be exchanged by January
18, 2023.
2. Preliminary Discovery: None.
The parties shall conduct discovery pursuant to Federal Rules of
Civil Procedure and the Joint Local Rules for the Eastern and
Western District of Kentucky. Pursuant to Fed.R.Civ.P. 5(b)(2)(E),
the parties consent to service of discovery or any other paper for
which service is required for electronical mail.
The Plaintiff's counsel has filed seven additional individual
lawsuits, which are currently pending in the Western District of
Kentucky, and one (1) class action lawsuit, which is currently
pending in the Eastern District of Kentucky, asserting claims
against Trans Union that are similar to those filed here.
Those seven (7) lawsuits are:
"Artis v. Trans Union, LLC, Case No. 3:22-CV-448-GNS (W.D.
KY);"
"Bartley v. Trans Union, LLC, Case No. 3:22-CV-425-RGJ (W.D.
KY);"
"Breen v. Trans Union, LLC, Case No. 3:22-CV-447-RGJ (W.D.
KY);"
Glover v. Credit Management, L.P., et al, Case No. 3:22-CV-
568-RGJ (W.D. KY);"
Stamey v. Trans Union, LLC, Case No. 3:22-CV-437-RGJ (W.D.
KY);"
Thompson v. Trans Union, LLC, Case No. 3:22-CV-586-DJH (W.D.
KY);" and
"Trimble v. Trans Union, LLC, Case No. 3:22-CV-431-CRS (W.D.
KY);"
The class action lawsuit is:
a. Coffey v. Equifax Information Services, LLC, et al., Case
No. 5:22-CV-271 (E.D. KY)
The Court further ordered that the case is stayed pending a ruling
on the Plaintiff's class-certification motion in the Putative Class
Action.
On or before June 1, 2023, the parties shall file a joint status
report as to the status of Plaintiff's class-certification motion
in the Putative Class Action.
Finally, it is further ordered that pursuant to 28 U.S.C. section
636(b)(1)(A), this matter is hereby referred to Honorable Colin H.
Lindsay, United States Magistrate Judge, for
resolution of all litigation planning issues, entry of scheduling
orders, consideration of amendments thereto, and disposition of all
non-dispositive matters, including discovery issues.
The Magistrate Judge is authorized and empowered to conduct all
necessary scheduling conferences, hearings or other proceedings
which in his discretion he deems necessary in order to properly
address the issues which arise in the course of this litigation.
The Magistrate Judge is further authorized to conduct a settlement
conference in this matter at any time should counsel indicate that
a conference would be helpful in resolving the
issues. Counsel shall jointly contact case manager Theresa Burch at
(502) 625-3546 to schedule the conference when so needed.
TransUnion is a risk and information solutions provider to
individuals, government, and businesses.
A copy of the Court's order dated Jan. 13, 2022 is available from
PacerMonitor.com at https://bit.ly/3WdxNpp at no extra charge.[CC]
TWITTER INC: Laid-Off Workers Can't Pursue Claims Via Class Action
------------------------------------------------------------------
Reuters reports that Twitter Inc has secured a ruling allowing the
social media company to force several laid-off workers suing over
their termination to pursue their claims via individual arbitration
than a class-action lawsuit.
U.S. District Judge James Donato on Jan. 13 ruled that five former
Twitter employees pursuing a proposed class action accusing the
company of failing to give adequate notice before laying them off
after its acquisition by Elon Musk must pursue their claims in
private arbitration.
Donato granted Twitter's request to force the five ex-employees to
pursue their claims individually, citing agreements they signed
with the company.
Twitter did not immediately respond to a request for comment.
The San Francisco judge left for another day "as warranted by
developments in the case" whether the entire class action lawsuit
must be dismissed, though, as he noted three other former Twitter
employees who alleged they had opted out of the company's
arbitration agreement have joined the lawsuit after it was first
filed.
The lawyer who represents the plaintiffs, Shannon Liss-Riordan,
said on Jan. 9 that she had already filed 300 demands for
arbitration on behalf of former Twitter employees and would likely
file hundreds more.
Those workers all claim they have not received the full severance
package promised by Twitter before Musk took over. Some have also
alleged sex or disability discrimination.
Last year, Donato had ruled that Twitter must notify the thousands
of workers who were laid off after its acquisition by Musk
following a proposed class action accusing the company of failing
to give adequate notice before terminating them.
The judge said that before asking workers to sign severance
agreements waiving their ability to sue the company, Twitter must
give them "a succinct and plainly worded notice".
Twitter laid off roughly 3,700 employees in early November in a
cost-cutting measure by Musk, and hundreds more subsequently
resigned.
In December last year, Twitter was also accused by dozens of former
employees of various legal violations stemming from Musk's takeover
of the company, including targeting women for layoffs and failing
to pay promised severance.
Twitter is also facing at least three complaints filed with a U.S.
labor board claiming workers were fired for criticizing the
company, attempting to organize a strike, and other conduct
protected by federal labor law. [GN]
UHG I LLC: Powell Files FDCPA Suit in S.D. California
-----------------------------------------------------
A class action lawsuit has been filed against UHG I LLC. The case
is styled as Zachary Powell, individually and on behalf of all
others similarly situated v. UHG I LLC, Case No.
3:23-cv-00086-DMS-KSC (S.D. Cal., Jan. 17, 2023).
The lawsuit is brought over alleged violation of the Fair Debt
Collection Practices Act.
UHG I, LLC -- https://uhgllc.com/ -- is a third-party debt
collector.[BN]
The Plaintiff is represented by:
Nicholas Ryan Barthel, Esq.
MILITARY LAW CENTER, Inc.
2173 Salk Avenue, Suite 250
Carlsbad, CA 92008
Phone: (760) 536-9038
Email: nick@barthelbarthel.com
- and -
Ryan Lee McBride, Esq.
KAZEROUNI LAW GROUP, APC
301 E. Bethany Home Road, Ste. C 195
Phoenix, AZ 85012
Phone: (800) 400-6808
Email: ryan@kazlg.com
UNITED HEALTH: Mitchell Sues Over Staff Accountants' Unpaid Wages
-----------------------------------------------------------------
CRYSTAL MITCHELL, individually and on behalf of all others
similarly situated, Plaintiffs v. UNITED HEALTH CENTERS OF THE SAN
JOAQUIN VALLEY, a California corporation; and DOES 1-100,
inclusive, Defendants, Case No. 1:23-cv-00060-EPG (E.D. Cal.,
January 11, 2023) is a class action against the Defendants for
violations of the Fair Labor Standards Act, the California Labor
Code, and the applicable California Industrial Wage Commission.
Plaintiff Mitchell was hired by UHSJ as a staff accountant on March
2, 2015. Throughout her employment, Plaintiff was properly
classified as a non-exempt employee and paid an hourly wage.
The Plaintiff alleges the Defendants' failure to pay minimum wages,
failure to pay overtime, failure to provide compliant meal breaks
and premiums, failure to timely pay wages on separation, failure to
furnish accurate itemized wage statements, and unlawful business
practices.
United Health Centers of the San Joaquin Valley is a private
non-profit organization established to improve access to healthcare
in rural communities of California's Central Valley.[BN]
The Plaintiff is represented by:
Jenny D. Baysinger, Esq.
Robert J. Wassermann, Esq.
MAYALL HURLEY P.C.
2453 Grand Canal Boulevard
Stockton, CA 95207-8253
Telephone: (209) 477-3833
Facsimile: (209) 473-4818
E-mail: jbaysinger@mayallaw.com
rwassermann@mayallaw.com
UNITED HEALTHCARE: Faces Muccio Class Suit Over Automated Texts
---------------------------------------------------------------
Kelsey McCroskey of ClassAction.org reports that a class action
lawsuit with case-captioned Muccio v. United HealthCare Services,
Inc., has been filed against United HealthCare Services, Inc. by a
Florida resident who claims to have received numerous automated
text messages from the company without his consent.
A proposed class action lawsuit has been filed against United
HealthCare Services, Inc. by a Florida resident who claims to have
received numerous automated text messages from the company without
his consent.
According to the 19-page complaint, the defendant "bombarded" the
plaintiff with automated texts soliciting its health insurance
products and services between 2021 and 2022 and likely sent similar
messages to other consumers. Per the lawsuit, United HealthCare
"knowingly" violated the Florida Telephone Solicitation Act (FTSA),
which prohibits companies from placing automated sales calls and
texts to consumers without their prior written consent.
The suit claims that the sheer volume, frequency, and "impersonal
and generic nature" of the text messages received by the plaintiff
prove that United HealthCare used a "computer software system that
automatically selected and dialed Plaintiffs and the Class members'
telephone numbers. "
The company's use of an automated messaging platform to send
solicitous texts "without any human involvement" enabled it to
"maximize the reach of its text message advertisements" at little
cost to United HealthCare, the case charges.
The filing contends that the defendant could have lawfully promoted
its services via automated text messaging simply by procuring
consent from consumers prior to sending the texts.
The plaintiff claims he never authorized United HealthCare to send
him automated text messages and, like other consumers, was unaware
of how to stop them. The man has suffered "annoyance, nuisance, and
invasion of [his] privacy" as a result, the complaint claims.
The lawsuit looks to represent anyone residing in Florida who has
received automated text messages soliciting United HealthCare's
products and/or services.[GN]
UNITED STATES: Seeks Dismissal of Privacy Invasion Class Action
---------------------------------------------------------------
Steve Korris of Madison Record reports that U. S. District Judge
Staci Yandle must decide whether to dismiss a class action privacy
invasion claim against Exchange stores on military bases or remand
it to Madison County where it started.
Plaintiff Linda Thompson of Godfrey and the United States agree
that Yandle can't keep it in her court.
Thompson concedes she suffered no concrete injury, which means
Yandle would lack jurisdiction and a Madison County judge
wouldn't.
Roy Dripps of Maryville filed Thompson's complaint in October
2022.
He identified her as a retired chief radio operator who purchased
items with a credit card at the Exchange on Scott Air Force base.
He claimed all Exchanges violated federal law requiring them to
mask expiration dates of credit and debit cards on receipts.
Dripps claimed the violations increased the risk of identity theft
and breached the confidence of customers in safe handling of their
information.
He added that it would have been simple for Exchanges to program
their systems to print receipts that didn't display expiration
dates.
Dripps proposed to certify a class of individuals in the U. S. and
its territories whose expiration dates appeared on debit or credit
card receipts at Exchanges.
He claimed there were at least tens of thousands of persons in the
class.
He proposed a class period starting in October 2020 and ending on
the date of class certification.
Dripps listed Scott Owens of Florida and Chicago lawyers Keith
Keogh, Michael Hilicki, and William Sweetnam as associates.
Taylor Pitz of the justice department in Washington removed the
complaint to district court on Dec. 2 on behalf of U. S. Attorney
Rachelle Crowe.
He claimed federal law authorizes the U. S. to remove actions from
state courts.
Sweetnam moved to remand on Dec. 22, citing a Seventh Circuit
decision that the same allegations didn't satisfy requirements for
standing in federal court.
That decision required a plaintiff asserting a violation of
statutory rights to allege that concrete harm resulted.
Sweetnam claimed the only reason Thompson chose a state court was
that the Seventh Circuit forced her to do so.
He claimed Thompson didn't seek to enforce any state law against
the U. S. or impose state law liability on it.
Pitz moved to dismiss on January 3, 2023, claiming remand was
unquestionably wrong.
"That would lead to the entirely incorrect outcome whereby a claim
against an entity of the federal government for an alleged
violation of federal statutory law must be litigated in a state
court," he wrote.
"She has not had her identity stolen nor has she demonstrated that
this violation makes her particularly susceptible to identity theft
or any other harm," he added.
Pitz claimed Exchanges provide quality merchandise at low prices
primarily to military personnel.
He claimed they generate reasonable earnings to supplement
appropriations for morale, welfare, and recreation programs of Army
and Air Force.
"To independently determine whether a plaintiff's injury is
concrete, courts consider whether the injury actually exists and
whether it is real and not abstract," he wrote.
Pitz claimed an injury must be actual or imminent, not conjectural
or hypothetical, or at the very least certainly impending.
He claimed any risk to Thompson remained entirely speculative and
hypothetical.
Pitz claimed Congress intended to provide federal officers and
agencies with the protections of a federal forum.
He added that the purpose of Congress was "to ensure that state
courts lack the authority to hold federal officers criminally or
civilly liable for acts performed in the execution of their
duties."
He claimed none of the cases Thompson cited where courts remanded
substantially similar cases was brought against federal agencies.
[GN]
UNLIMITED ENTERPRISES: Underpays Logistics Drivers, Beltran Says
----------------------------------------------------------------
FRANKY BELTRAN, individually and on behalf of all other aggrieved
employees, Plaintiff v. UNLIMITED ENTERPRISES, LLC; AMAZON
LOGISTICS, INC; RODERICK HENLEY, an individual; and DOES 1 through
50, inclusive, Defendants, Case No. 23STCV00639 (Cal. Super., Los
Angeles Cty., January 11, 2023) arises from the Defendants'
unlawful labor practices in violation of the California Labor
Code.
The Plaintiff asserts that Defendants violated the law by failing
to: provide employment records; pay overtime and double time;
provide rest and meal periods; pay minimum wages; keep accurate
payroll records and provide itemized wage statements; pay reporting
time wages; pay split shift wages; pay all wages earned on time;
pay all wages earned upon discharge or resignation; and reimburse
necessary, business-related expenses.
The Plaintiff was hired by the Defendants with the job title of
Amazon Logistics Driver from October 13, 2021 to January 23, 2022.
Unlimited Eenterprises, LLC operates as a freight transportation
provider.
Amazon Logistics, Inc. operates as an Internet-based enterprise
that sells items both directly and acts as a middleman between
other retailers.[BN]
The Plaintiff is represented by:
Haig B. Kazandjian, Esq.
Cathy Gonzalez, Esq.
Melissa Robinson, Esq.
HAIG B. KAZANDJIAN LAWYERS, APC
801 North Brand Boulevard, Suite 970
Glendale, CA 91203
Telephone: (818) 696-2306
Facsimile: (818) 696-2307
E-mail: haig@hbklawvers.com
cathy@hbklawvers.com
melissa@hbklawvers.com
VIDEOJEEVES INC: Robbins Files Suit in N.D. California
------------------------------------------------------
A class action lawsuit has been filed against VideoJeeves, Inc. The
case is styled as Lamar Robbins, individually and on behalf of all
others similarly situated v. VideoJeeves, Inc., Case No.
3:23-cv-00212 (N.D. Cal., Jan. 17, 2023).
The nature if suit is stated as Other P.I. for Personal Injury.
Video Jeeves -- https://www.videojeeves.com/ -- is the best video
animation production agency in the USA, with a team of expert
animators to deliver quality animation services.[BN]
The Plaintiff is represented by:
Frank S. Hedin, Esq.
HEDIN HALL LLP
1395 Brickell Ave., Suite 1140
Miami, FL 33131
Phone: (305) 357-2107
Fax: (305) 200-8801
Email: fhedin@hedinhall.com
WALMART INC: Hearing on Haro Conditional Status Bid Set for Feb. 22
-------------------------------------------------------------------
In the class action lawsuit captioned as AMADO HARO and ROCHELLE
ORTEGA, On Behalf of Themselves and All Others Similarly Situated,
v. WALMART, INC., Case No. 1:21-cv-00239-ADA-SKO (E.D. Cal.), the
Hon. Judge Sheila K. Oberto entered an order granting the joint
stipulation regarding deadlines concerning the plaintiffs' motion
for class certification and related motions.
-- The hearing on Plaintiffs' Motion for Feb. 22, 2023
Conditional Certification and Approval
of Notice remains set for:
-- The Plaintiffs' Reply Brief in March 31, 2023
Support of Plaintiffs' Motion
for Class Certification shall be
filed by:
-- That Plaintiffs' Response to March 31, 2023
Defendant's Motion to Strike the
Declaration of Dr. Drogin
shall be filed by:
-- The Plaintiffs shall file any March 31, 2023
motions challenging Defendant's
experts by:
-- The Defendant's Response to any April 21, 2023
motion filed by Plaintiffs to
challenge Defendant's experts
shall be due by:
-- That Defendant's Reply Brief in May 10, 2023
support of the Motion to Strike
the Declaration of Dr. Drogin
and Plaintiffs' Reply Brief in
support of any motions
challenging the Defendant's
experts shall be filed by:
-- The motion for class May 31, 2023
certification, as well the
related motions to exclude
expert evidence, shall be
heard on:
-- A conference to set further Nov. 30, 2023
scheduling dates is set for:
Walmart is an American multinational retail corporation that
operates a chain of hypermarkets, discount department stores, and
grocery stores.
A copy of the Court's order dated Jan. 13, 2022 is available from
PacerMonitor.com at https://bit.ly/3H8u5t3 at no extra charge.[CC]
The Plaintiffs are represented by:
Matthew S. Parmet, Esq.
PARMET PC
340 South Lemon Avenue, #1228
Walnut, CA 91789
Telephone: (310) 928-1277
E-mail: matt@parmet.law
- and -
Don J. Foty, Esq.
William M. Hogg, Esq.
HODGES & FOTY, LLP
2 Greenway Plaza, Suite 250
Houston, TX 77046
Telephone: (713) 523-0001
E-mail: dfoty@hftrialfirm.com
whogg@hftrialfirm.com
The Defendant is represented by:
Gregory W. Knopp, Esq.
Jonathan P. Slowik, Esq.
Laura L. Vaughn, Esq.
Nathan J. Oleson, Esq.
AKIN GUMP STRAUSS HAUER & FELD, LLP
1999 Avenue of the Stars, Suite 600
Los Angeles, CA 90067
Telephone: (310) 229-1000
E-mail: gknopp@akingump.com
jpslowik@akingump.com
vaughnl@akingump.com
noleson@akingump.com
WEST VIRGINIA: Court Narrows Claims in Jonathan R. v. Justice
-------------------------------------------------------------
In the case, JONATHAN R., et al., Plaintiffs v. JIM JUSTICE, et
al., Defendants, Civil Action No. 3:19-cv-00710 (S.D.W. Va.), Judge
Thomas E. Johnston of the U.S. District Court for the Southern
District of West Virginia, Huntington Division, grants in part and
denies in part the Defendants' Motion to Dismiss Plaintiffs'
Complaint.
The Plaintiffs are children in the West Virginia foster care
system. They allege this system, as run by Defendants Jim Justice,
Bill Crouch, Jeremiah Samples, Linda Watts, and the West Virginia
Department of Health and Human Resources, is structurally inept, in
violation of their constitutional and statutory rights. Seeking
system-wide reform, the Plaintiffs brought this putative class
action on behalf of all children who are, or will be, placed in
West Virginia foster care.
The Plaintiffs' Complaint describes a legion of shortcomings in the
foster care system. For instance, they allege that the West
Virginia Department of Health and Human Resources ("DHHR") lacks a
sufficient number of foster care placements. This, in turn, leads
to DHHR segregating children in institutions, placing some in
temporary shelters for indefinite stints of time, leaving others in
"known abusive or neglectful homes," or placing them in poorly
vetted and overcrowded foster homes.
Staff shortages also plague the foster care system. DHHR, according
to the Plaintiffs, fails to employ and retain a sufficient number
of appropriately trained caseworkers. This leaves caseworkers
swamped with "unmanageable caseloads," sometimes two or three times
the recommended standard. The shortcomings, the Plaintiffs allege,
have resulted in DHHR employing caseworkers that are poorly trained
and ill-equipped to help West Virginian families.
Unqualified, overworked caseworkers lead to other deficiencies in
West Virginia's foster care system. High caseloads prevent
caseworkers from timely assessing the needs of children entering
the foster care system. Without timely assessments, DHHR cannot
properly develop a foster child's individualized case plan. Similar
shortcomings permeate the foster care system, further exacerbating
an already difficult situation.
The Plaintiffs filed suit in the Court on Sept. 30, 2019. The
Complaint proposes one General Class, consisting of all children
who are will be in West Virginia foster care, and three subclasses.
The proposed Kinship Subclass consists of children who are, will
be, or have been placed in kinship placements. The proposed ADA
Subclass consists of children who have or will have physical,
intellectual, cognitive, or mental health disabilities. The
proposed Aging Out Subclass consists of children who are or will be
14 years old and older, who are eligible to receive age-appropriate
transition planning but have not been provided the necessary case
management and services.
The Complaint includes five causes of action. First, the General
class and each subclass allege violations of their substantive due
process rights under the Fourteenth Amendment. Second, each class
asserts violations of their right to familial association under the
First, Ninth, and Fourteenth Amendments. Third, all classes allege
violations of the Adoption Assistance and Child Welfare Act of 1980
("AACWA"). Fourth, the ADA subclass alleges violations of the
Americans with Disabilities Act ("ADA"). Fifth, the ADA subclass
asserts a claim for violations of the Rehabilitation Act.
The Plaintiffs sued Defendants Governor Jim Justice, then-Cabinet
Secretary of the DHHR Bill Crouch, Deputy Secretary of the DHHR
Jeremiah Samples, Commissioner of the Bureau for Children and
Families Linda Watts, in their official capacity, as well as the
DHHR. They seek declaratory and injunctive relief against the
Defendants for the alleged deficiencies in the foster care system
they oversee.
Boiled down, the Plaintiffs seek three things. First, a declaration
that these systematic deficiencies are unlawful. Second, injunctive
relief that would require the Defendants to overhaul the West
Virginia foster care system. Third, a court-appointed Monitor to
oversee Defendants' compliance with the injunction.
The Defendants moved to dismiss the Complaint for failure to state
a claim under Federal Rule of Civil Procedure 12(b)(6). As stated,
the Plaintiffs allege violations of their substantive due process
rights, right to familial association, AACWA, ADA, and
Rehabilitation Act. The Defendants urge the Court to dismiss each
for failure to state a claim.
With respect to Count I, Judge Johnston grants in part and denies
in part the Defendants' Motion to Dismiss. Looking first at the
proposed General Class, he finds that the claims adequately allege
that the Defendants turned a blind eye to a known danger that
Plaintiffs would be mistreated and abused while in State custody.
As to the proposed Kinship subclass, he finds that the first and
third rights claimed by this Subclass have no basis in substantive
due process. Lastly, substantive due process also does not protect
any of the rights claimed by the proposed Aging Out subclass.
Judge Johnston then turns to Count II, wherein the Plaintiffs
allege the Defendants violated their right to familial association
under the First, Ninth, and Fourteenth Amendments. He grants the
Defendants' Motion to Dismiss Count II. He holds that nothing in
the First or Fourteenth Amendments require the Defendants to
nurture the Plaintiffs' familial relationships. The Plaintiffs have
also failed to allege that the Defendants improperly intruded on
their parent-child relationships. Nor have they adequately alleged
that Defendants violated their right to familial association with
their siblings. Even if the Constitution did generally protect the
relationship between siblings, that protection would not apply in
the foster care context. Finally, the Plaintiffs' claim for
interference with their grandparent-grandchild relationships is
foreclosed by Troxel v. Granville, 530 U.S. 57 (2000) (plurality
opinion).
In Count III, the Plaintiffs bring a Section 1983 claim, alleging
the Defendants violated the AACWA. They allege Defendants violated
their rights under certain sections of the AACWA. The Defendants
counter that those sections do not confer privately enforceable
rights.
Judge Johnston grants the Defendants' Motion to Dismiss Count III.
He finds that since Congress has not spoken with a clear voice and
manifested an 'unambiguous' intent to confer an individual right,
Section 671(a)(16) is not privately enforceable.
The Plaintiffs' Counts IV and V allege violations of the Americans
with Disabilities Act and the Rehabilitation Act, respectively. The
Defendants launch a litany of attacks at these claims. First, they
say they never discriminated against the Plaintiffs because
"shortcomings in the State's community-based mental health care
system" affect everyone equally. Second, they argue they are not
required to "provide a certain level of benefits" or services to
the Plaintiffs. Third, the Defendants claim that the integration
mandate is inapplicable here because the best-interest-of-the-child
standard trumps federal law when it comes to determining the
Plaintiffs' placements. Fourth, they claim there are no unjustified
placements because "each and every placement has been approved by a
state circuit court as in the best interest of the child." Fifth,
and finally, they say that even if the integration mandate does
apply, they have a comprehensive, effectively working plan to
ensure children with disabilities are placed in the least
restrictive settings."
Judge Johnston denies the Defendants' Motion to Dismiss Counts IV
and V, holding that their efforts fall flat. He holds that (i)
Title II simply requires a showing that the Plaintiffs have been
"unjustifiably institutionaled" when a less restrictive placement
would have been appropriate; (ii) the services are necessary for
the Plaintiffs to participate in the foster care system, and they
are not entirely new, stand-alone programs; (iii) the integration
mandate does not force anyone to place the Plaintiffs in "an
inappropriate setting"; (iv) when placing the Plaintiffs, state
courts had no choice but to institutionalize them; and (v) the
Complaint portrays a broken foster care system where children are
"institutionalized and segregated from the outside world," leaving
them to languish for years on end.
For the foregoing reasons, Judge Johnston grants in part and denies
in part the Defendants' Motion to Dismiss. He directs the Clerk to
send a copy of his Order to the counsel of record and any
unrepresented party.
A full-text copy of the Court's Jan. 13, 2023 Order is available at
https://tinyurl.com/yn39arh5 from Leagle.com.
WING FINANCIAL: Stoichev Files Suit in N.D. Oklahoma
----------------------------------------------------
A class action lawsuit has been filed against Wing Financial
Services, LLC. The case is styled as Venelin Stoichev,
individually, and on behalf of all others similarly situated v.
Wing Financial Services, LLC, Case No. 4:23-cv-00026-TCK-SH (N.D.
Okla., Jan. 17, 2023).
The nature if suit is stated as Other P.I. for Personal Injury.
Wing Financial -- https://www.wingsfinancial.com/ -- is provides
tax preparation services.[BN]
The Plaintiff is represented by:
Terry Frank Stokes, Esq.
RUBENSTEIN & PITTS
1503 E 19th St.
Edmond, OK 73013
Phone: (405) 340-1900
Fax: (405) 340-1001
Email: tstokes@oklawpartners.com
*********
S U B S C R I P T I O N I N F O R M A T I O N
Class Action Reporter is a daily newsletter, co-published by
Bankruptcy Creditors' Service, Inc., Fairless Hills, Pennsylvania,
USA, and Beard Group, Inc., Washington, D.C., USA. Rousel Elaine T.
Fernandez, Joy A. Agravante, Psyche A. Castillon, Julie Anne L.
Toledo, Christopher G. Patalinghug, and Peter A. Chapman, Editors.
Copyright 2023. 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 ***