/raid1/www/Hosts/bankrupt/CAR_Public/230223.mbx
C L A S S A C T I O N R E P O R T E R
Thursday, February 23, 2023, Vol. 25, No. 40
Headlines
AMEC FOSTER: Wadley Labor Suit Removed to C.D. Cal.
ARCHER-DANIELS-MIDLAND: Continues to Defend AOT Class Suit in IL
ARCHER-DANIELS-MIDLAND: Continues to Defend Green Plains Suit in IL
ARCHER-DANIELS-MIDLAND: Continues to Defend United Wisconsin Suit
AVALARA INC: Pomerantz Named Lead Counsel in Parekh Class Suit
BESTCARE EXPRESS: Malan Files Suit in Cal. Super. Ct.
BEYOND MEAT: Miller Suit Transferred to N.D. Illinois
BRP GROUP: Violates Delaware General Corporation Law, Wagner Says
CALLOOH CALLAY: Miranda Sues Over Unpaid Overtime Wages
CARNIVAL CORP: Wiretaps Website Visitors, Price Class Suit Alleges
CAROLYN ROWAN: Slade Files ADA Suit in S.D. New York
CARRIZO (MARCELLUS): Bids for Summary Judgment in Slamon Suit OK'd
CITIBANK NA: Cassese Sues Over Unauthorized Transactions
COCA-COLA CO: Hawkins' 1st Amended Suit Dismissed With Prejudice
COINBASE GLOBAL: Underwood Appeals Suit Dismissal to 2nd Circuit
COLGATE-PALMOLIVE: Dixon Sues Over Deceptive & Misleading Labeling
COLONIAL MANAGEMENT: Flynn Sues to Recover Unpaid Overtime Wages
CREATION MAINTENANCE: Faces Jackson Suit Over Unpaid OT Wages
CREDIT ONE BANK: McQueen Sues Over Unlawful Credit Reporting
CREDIT PROS: Wells TCPA Suit Removed to S.D. Florida
DIRECTV LLC: Appeals Attorneys' Fee Ruling in Perez Suit to 9th Cir
DMW INDUSTRIES: Denial of Alcaraz's Class Cert. Bid Upheld in Part
EIGER BIOPHARMACEUTICALS: Levi & Korsinsky Named as Lead Counsel
ENERGIZER HOLDINGS: Bowen Appeals Case Dismissal to 9th Circuit
EPIQ CORPORATE: Sued Over Unlawful Public Disclosure of Names
EPOCH TIMES ASSOCIATION: Labarr Files Suit in S.D. New York
EXELON CORP: Discovery Ongoing in ComEd Lobbying Activities Suit
EXPERIAN INFORMATION: Kisciras Files FCRA Suit in D. New Jersey
FAY SERVICING: Ellery Sues Over Incorrect and Misleading Denials
FCA US: Court Narrows Claims in Maugain's First Amended Complaint
FEDERAL NATIONAL: Trial for Stock Suits Set for July 24
GENIUNE PARTS: Seijo Wage-and-Hour Suit Removed to C.D. Cal.
HANNAFORD BROS: Court Certifies Class of Managers in Prinzo Suit
HARLEY-DAVIDSON INC: Assise Antitrust Suit Transferred to E.D. Wis.
HARLEY-DAVIDSON MOTOR: Koller Suit Transferred to E.D. Wis.
HAVANA HARRY'S: Arevalo FLSA Suit Removed to S.D. Fla.
HOME DEPOT: Files 7th Circuit Appeal in Corn Warranty Suit
JABIL INC: Bid to Dismiss Huynh Labor Class Suit Granted in Part
JONAS BRONCK HOUSING: Fails to Pay Overtime Wages, Perez Claims
KRAFT HEINZ: Amended Hoffman Class Suit Dismissed With Prejudice
MDL 1720: Palladino Antitrust Suit Transferred to E.D.N.Y.
MDL 2924: Multi-Plaintiff Complaints in Zantac Liability Suit Nixed
MDL 3055: Gutierrez Privacy Suit Transferred to D.N.J.
MDL 3055: Seirafi Privacy Suit Transferred to D.N.J.
MICHAELS STORES: Crawford Labor Suit Removed to E.D. Cal.
MICROSOFT CORP: Beldock ERISA Suit Dismissed With Leave to Amend
MR. SOS: Angeles Sues Over Installers' Unpaid Wages
MVI INC: Caputo Sues Over Unpaid Wages, Breach of Fiduciary Duties
NELNET SERVICING: Eichenblatt Consolidated with Data Security Cases
NELNET SERVICING: Freeland Consolidated with Data Security Cases
NELNET SERVICING: Freeman Consolidated with Data Security Cases
NELNET SERVICING: Gamen Consolidated with Data Security Cases
NELNET SERVICING: Hegarty Consolidated with Data Security Cases
NELNET SERVICING: Herrick Consolidated with Data Security Cases
NELNET SERVICING: Scott Consolidated with Data Security Cases
NELNET SERVICING: Simmons Consolidated with Data Security Cases
NFL PLAYER: Faces Alford Suit Over Wrongful Denial of Benefits
NJ NAWECH: Da Silva Sues Over Construction Workers' Unpaid Overtime
OK FOODS: Coffey Appeals Summary Judgment Ruling to 8th Circuit
PORTOLA PHARMACEUTICALS: Removal of Docket Entry Ordered in Hayden
QUEST DIAGNOSTICS: Ager Sues Over Illegal Billing Practices
REGAL MEDICAL: Lindsey Sues Over Failure to Protect PII and PHI
RENEOTECH INC: Nemirovsky Sues Over Deceptive Advertising
RING LLC: Cody Files Suit in C.D. California
ROADSAFE TRAFFIC: Ramos Files Suit in Cal. Super. Ct.
ROBERT HALF: Bid for Summary Judgment in Magallon FCRA Suit Denied
ROLL & HILL: Rodriguez Files ADA Suit in E.D. New York
S.C. JOHNSON: Court Narrows Claims in 3rd Amended Rosenberg Suit
SACRAMENTO BEHAVIORAL: Tejeda Files Suit in Cal. Super. Ct.
SAFE CATCH INC: Donet Files ADA Suit in S.D. New York
SANTA CLARA UNIVERSITY: Thorne Files ADA Suit in S.D. New York
SEA NEW YORK: Hwang Files ADA Suit in E.D. New York
SEATTLE UNIVERSITY: Thorne Files ADA Suit in S.D. New York
SET AND SERVICE RESOURCES: Parvin Files Suit in Cal. Super. Ct.
SKECHERS USA: Garcia Sues to Recover Delinquent Wage Payments
SN SERVICING: Monaco Suit Removed to D. New Jersey
SOHI FELLOW BARBER: Hwang Files ADA Suit in E.D. New York
STRATFORD UNIVERSITY: Coleman Sues Over Failure to Safeguard PII
SWIFT BEEF: Meza Wage-and-Hour Suit Removed to C.D. Cal.
SYNGENTA CROP: Hys Farms Antitrust Suit Transferred to M.D.N.C.
SYNGENTA CROP: Scott Day Antitrust Suit Transferred to M.D.N.C.
TEIJIN AUTOMOTIVE: Hummel Sues Over Failure to Safeguard PII
THRIVE CAUSEMETICS: Blanco Suit Removed to S.D. Fla.
TIC INTERNATIONAL: Drew Suit Removed to S.D Indiana
TK&K SERVICES: Palma Files Suit in Cal. Super. Ct.
TOYOTA MOTOR: Court Enters Final Judgment in Ryan-Blaufuss Suit
UNAC INTERNATIONAL: Hernandez Sues Over Misleading Practices
UNITED STATES: Botello Files Suit in Cal. Super. Ct.
UNITED STATES: Dickerson Files Writ of Habeas Corpus
UNITED STATES: Reeves Found Not Interested Party in Braswell Suit
UNIVERSAL TELEVISION: Bartley Sues Over Unlawful Labor Practices
UPROXX LLC: Kuzenski Sues Over Unlawful Disclosure of PII
VULCAN MATERIALS: Tejeda Labor Suit Removed to N.D. Cal.
W.K.S. FROSTY: Hofmann Sues Over Unpaid Overtime Compensation
WELLS FARGO: Blessinger Files Bid for Class Certification
WELLS FARGO: Case Management Plan & Scheduling Order Entered
WEST VILLAGE OASIS: Paez Sues Over Unpaid Minimum Wages
WESTON MED: Bid to Strike Carraha's Bid for Attorneys' Fees Denied
WILDFISH LLC: Donet Files ADA Suit in S.D. New York
WILLIWAW FOODS LLC: Donet Files ADA Suit in S.D. New York
*********
AMEC FOSTER: Wadley Labor Suit Removed to C.D. Cal.
---------------------------------------------------
The case styled LISA A. WADLEY, individually, and on behalf of all
others similarly situated, Plaintiff v. AMEC FOSTER WHEELER USA
CORPORATION; WOOD ENVIRONMENT & INFRASTRUCTURE SOLUTIONS, INC., and
DOES 1 through 10, inclusive, Defendants, Case No. CVRI2205573, was
removed from the Superior Court of California, County of Riverside,
to the United States District Court for the Central District of
California on Feb. 10, 2023.
The Clerk of Court for the Central District of California assigned
Case No. 5:23-cv-00224 to the proceeding.
The Plaintiff alleges that Defendants failed to pay her all of her
minimum and overtime wages, failed to provide proper meal and rest
breaks, failed to reimburse necessary business expenses, failed to
timely pay all wages owed upon termination, failed to provide
accurate wage statements, and engaged in unfair business
practices.
AMEC Foster Wheeler USA Corporation provides engineering and
construction services.[BN]
The Defendants are represented by:
Gregory W. Knopp, Esq.
Michelle L. Lappen, Esq.
PROSKAUER ROSE LLP
2029 Century Park East, Suite 2400
Los Angeles, CA 90067-3010
Telephone: (310) 557-2900
Facsimile: (310) 557-2193
E-mail: gknopp@proskauer.com
mlappen@proskauer.com
ARCHER-DANIELS-MIDLAND: Continues to Defend AOT Class Suit in IL
----------------------------------------------------------------
Archer-Daniels-Midland Company disclosed in its Form 10-K Report
for the fiscal period ending December 31, 2022 filed with the
Securities and Exchange Commission on February 14, 2023, that the
Company continues to defend the AOT class suit in the federal
district court of Urbana, Illinois.
On September 4, 2019, AOT Holding AG filed a putative class action
under the U.S. Commodities Exchange Act in federal district court
in Urbana, Illinois, alleging that the Company sought to manipulate
the benchmark price used to price and settle ethanol derivatives
traded on futures exchanges.
On March 16, 2021, AOT filed an amended complaint adding a second
named plaintiff Maize Capital Group, LLC. AOT and Maize allege that
members of the putative class collectively suffered damages
calculated to be between approximately $500 million to over $2.0
billion as a result of the Company's alleged actions.
The Company denies liability, and is vigorously defending itself in
these actions.
Archer-Daniels-Midland Company is principally into the
merchandising and transporting agricultural commodities, and
manufacturing products for use in food, beverages, feed, energy,
and industrial applications, and ingredients and solutions for
human and animal nutrition.
ARCHER-DANIELS-MIDLAND: Continues to Defend Green Plains Suit in IL
-------------------------------------------------------------------
Archer-Daniels-Midland Company disclosed in its Form 10-K Report
for the fiscal period ending December 31, 2022 filed with the
Securities and Exchange Commission on February 14, 2023, that the
Company continues to defend the Green Plains class suit in the
federal district court of Urbana, Illinois.
On July 14, 2020, Green Plains Inc. and its related entities ("GP")
filed a putative class action lawsuit, alleging substantially the
same operative facts, in federal court in Nebraska, seeking to
represent sellers of ethanol.
On August 16, 2021, the court granted Archer-Daniels-Midland's
motion to dismiss the GP complaint, dismissing one claim with
prejudice and declining jurisdiction over the remaining state law
claim.
On October 26, 2021, GP filed a new complaint in Nebraska federal
district court, alleging substantially the same facts and asserting
a claim for tortious interference with contractual relations.
On March 18, 2022, the Nebraska federal district court granted
Archer-Daniels-Midland's motion to transfer the GP case back to the
Central District of Illinois for further proceedings.
Archer-Daniels-Midland moved to dismiss the complaint on May 20,
2022 and on December 30, 2022, the court dismissed GP’s complaint
with prejudice.
GP has appealed the dismissal and is vigorously defending itself in
these actions.
Archer-Daniels-Midland Company is principally into the
merchandising and transporting agricultural commodities, and
manufacturing products for use in food, beverages, feed, energy,
and industrial applications, and ingredients and solutions for
human and animal nutrition.
ARCHER-DANIELS-MIDLAND: Continues to Defend United Wisconsin Suit
-----------------------------------------------------------------
Archer-Daniels-Midland Company disclosed in its Form 10-K Report
for the fiscal period ending December 31, 2022 filed with the
Securities and Exchange Commission on February 14, 2023, that the
Company continues to defend the United Wisconsin Grain Producers
LLC class suit in the federal district court of Urbana, Illinois.
On November 11, 2020, United Wisconsin Grain Producers LLC ("UWGP")
and five other ethanol producers filed a lawsuit in federal court
in Illinois alleging substantially the same facts and asserting
claims under the Sherman Act and Illinois, Iowa, and Wisconsin law.
The court granted Archer-Daniels-Midland's motion to dismiss the
UWGP complaints without prejudice on September 28, 2021.
UWGP filed an amended complaint on October 19, 2021, which the
court dismissed on July 12, 2022. UWGP has appealed the dismissal
to the United States Court of Appeals for the Seventh Circuit.
The Company is vigorously defending itself in these actions.
Archer-Daniels-Midland Company is principally into the
merchandising and transporting agricultural commodities, and
manufacturing products for use in food, beverages, feed, energy,
and industrial applications, and ingredients and solutions for
human and animal nutrition.
AVALARA INC: Pomerantz Named Lead Counsel in Parekh Class Suit
--------------------------------------------------------------
In the case, VINEET PAREKH, Plaintiff v. AVALARA, INC., et al.,
Defendants, Case No. C22-1580 MJP (W.D. Wash.), Judge Marsha J.
Pechman of the U.S. District Court for the Western District of
Washington, Seattle, appoints Martin Sohovich as the Lead
Plaintiff, Pomerantz LLP as the Lead Counsel and Badgley Mullins
Turner, PLLC, as the Liaison Counsel.
Parekh filed a shareholder class action complaint against Avalara
and several individuals in early November 2022. He provided notice
to other shareholders of the action.
Parekh filed a motion to be appointed as lead plaintiff and for his
counsel to be appointed as lead counsel. Sohovich -- an Avalara
shareholder -- filed a motion to be appointed as lead plaintiff and
for his counsel to be appointed as lead counsel. Parekh filed an
opposition to Sohovich's motion, but then withdrew his own motion
for appointment.
Sohovich asks the Court to appoint him as lead plaintiff given the
large number of shares of Avalara he owns and his representation
that he will fairly and adequately represent the proposed class and
oversee the counsel he selected to represent him. He asks the Court
to appoint as Pomerantz LLP as lead counsel, Badgley Mullins
Turner, PLLC as liaison counsel and Wohl & Fruchter LLP as
"additional counsel."
Judge Pechman finds that Sohovich is an adequate lead plaintiff.
First, the presumption of appointment applies to Sohovich because
he filed a motion to be appointed in response to the notice Parekh
issued, has the largest financial interest of the potential lead
plaintiffs, and appears to satisfy typicality and adequacy under
Rule 23. Second, Judge Pechman finds that Sohovich has satisfied
the requirements of Section 78u-4(a)(2)(A).
Third, she construes Parekh's withdrawal of his motion for
appointment as lead plaintiff as a withdrawal of his opposition to
Sohovich's motion for appointment. Without Parekh seeking
appointment, there is no other lead plaintiff to be considered and
this effectively renders Sohovich's motion unopposed.
Accordingly, Judge Pechman grants the Motion and appoints Sohovich
as the Lead Plaintiff.
Next, Judge Pechman is satisfied that Pomerantz LLP and Badgley
Mullins Turner, PLLC will serve the interest of the class and are
reasonably selected by Sohovich. Both firms have substantial
experience and appear committed to litigate the action, although
neither firm filed a complaint. She notes that Badgley Mullins is a
local firm with experience litigating in this District and is
willing to take on the substantial role and duties as liaison
counsel to ensure that the filings in this matter conform to the
Local Rules and that out-of-state counsel conduct themselves in
accordance with the Local Rules and local practice.
So while two firms do not necessarily appear necessary to be
appointed as lead counsel, Judge Pechman finds it appropriate to
appoint Pomerantz LLP as the Lead Counsel and Badgley Mullins as
the Liaison Counsel. She grants the Motion on this basis and
appoints Pomerantz LLP as the Lead Counsel and Badgley Mullins as
the Liaison Counsel.
However, Judge Pechman finds no basis on which to appoint
"additional counsel." Sohovich's motion provides no reason why a
third firm is necessary and what non-duplicative role the proposed
firm might play. She finds no reason that another firm should be
appointed, particularly when its proposed role is entirely
undefined. Accordingly, she denies the Motion as to the request for
appointment of Wohl & Fruchter LLP as "additional counsel."
For these reasons, Judge Pechman grants in part and denies in part
the Motion.
The Clerk is ordered to provide copies of the Order to all
counsel.
A full-text copy of the Court's Feb. 3, 2023 Order is available at
https://tinyurl.com/ypr9eep8 from Leagle.com.
BESTCARE EXPRESS: Malan Files Suit in Cal. Super. Ct.
-----------------------------------------------------
A class action lawsuit has been filed against Bestcare Express,
Inc., et al. case is styled as Jeffrey S. Malan, an individual, on
his own behalf and on behalf of all others similarly situated v.
Bestcare Express, Inc. d/b/a Vantage Transports, Does 1-20,
inclusive, Case No. CGC23604531 (Cal. Super. Ct., San Francisco
Cty., Feb. 8, 2023).
The case type is stated as "Other Non-Exempt Complaints."
Bestcare Express, Inc. doing business as Vantage Transports is a
transportation service in Tracy, California.[BN]
The Plaintiff is represented by:
Thomas H. Schelly, Esq.
LIPELES LAW GROUP
880 Apollo Street, Suite 336El
Segundo, CA 90245
BEYOND MEAT: Miller Suit Transferred to N.D. Illinois
-----------------------------------------------------
The case styled as Todd Miller, individually on behalf of himself
and all others similarly situated v. Beyond Meat, Inc., Case No.
1:22-cv-06336 was transferred from the U.S. District Court for the
Eastern District of New York, to the U.S. District Court for the
Northern District of Illinois on Feb. 8, 2023.
The District Court Clerk assigned Case No. 1:23-cv-00679 to the
proceeding.
The nature suit is stated as Other Fraud.
Beyond Meat, Inc. -- https://www.beyondmeat.com/ -- is a Los
Angeles–based producer of plant-based meat substitutes founded in
2009 by Ethan Brown.[BN]
The Plaintiff is represented by:
Charles E. Schaffer, Esq.
David Magagna, Esq.
LEVIN SEDRAN & BERMAN
510 Walnut Street, Ste. 500
Philadelphia, PA 19106
Phone: (215) 592-1500
Fax: (215) 592-4663
Email: cschaffer@lfsblaw.com
dmagagna@lfsblaw.com
- and -
Jason P. Sultzer, Esq.
THE SULTZER LAW GROUP, P.C.
85 Civic Center Plaza, Suite 200
Poughkeepsie, NY 12601
Phone: (888) 749-7747
Email: sultzerj@thesultzerlawgroup.com
The Defendants are represented by:
Marvin S. Putnam, Esq.
LATHAM & WATKINS LLP
355 South Grand Avenue
Los Angeles, CA 90071
Phone: (424) 653-5588
Email: marvin.putnam@lw.com
- and -
Robin M. Hulshizer, Esq.
LATHAM & WATKINS LLP
330 N. Wabash Avenue, Suite 2800
Chicago, IL 60611
Phone: (312) 876-7700
Email: robin.hulshizer@lw.com
BRP GROUP: Violates Delaware General Corporation Law, Wagner Says
-----------------------------------------------------------------
Ruby Wagner, on behalf of herself and all other similarly situated
stockholders of BRP GROUP, INC. v. BRP GROUP, INC., LOWRY BALDWIN,
TREVOR BALDWIN, PHILLIP CASEY, JAY COHEN, JOSEPH J. KADOW, BARBARA
MATAS, CHRIS SULLIVAN, SUNITA PARASURAMAN, KRIS WIEBECK, MYRON
WILLIAMS, and ELLYN SHOOK, Case No. 2023-0150 (Del Ch., Feb. 8,
2023) asserts claims against BRP Group and its board of directors
for declaratory relief concerning the Company’s violation of the
Delaware General Corporation Law, the Company's Amended and
Restated Certificate of Incorporation, and the Company's Amended
and Restated By-Laws.
The Plaintiff contends that one of the most basic tenets of
Delaware law, codified in Section 141(a) of the DGCL, is that,
unless otherwise stated in a company's certificate of
incorporation, the board of directors has the ultimate
responsibility of managing the business and affairs of a
corporation. The Charter contains no provision purporting to limit
the authority of the Board to fully manage the Company; instead,
the Charter mirrors Section 141(a) by providing that the "business
and affairs of the [Company] shall be managed by, or under the
direction of, the Board."
The Officer Approval Right violates Section 141(a) and the Charter
as it stated that the Board cannot effectively manage the business
and affairs of the Company if it does not have the power ultimately
to determine who will lead the Company as CEO. By forcing the Board
to seek L. Baldwin's approval before replacing or terminating any
executive officer, the Officer Approval Right also 3violates the
Company’s Bylaws, which provide that "any officer may be removed
at any time with or without cause by the Board," the Plaintiff
adds.
The Plaintiff seeks a declaration invalidating the Officer Approval
Right, the Merger Approval Right, and the Charter Amendment
Approval Right.
Baldwin Risk Partners, LLC, an independent insurance distribution
firm. In connection with the Company's initial public offering, the
Company entered into a stockholders agreement (Stockholders
Agreement) with its pre-IPO owners.[BN]
The Plaintiff is represented by:
Peter B. Andrews, Esq.
Craig J. Springer, Esq.
David M. Sborz, Esq.
Andrew J. Peach, Esq.
Jackson E. Warren, Esq.
Jacob D. Jeifa, Esq.
ANDREWS & SPRINGER, LLC
4001 Kennett Pike, Suite 250
Wilmington, DE 19807
Telephone: (302) 504-4957
- and -
Steven J. Purcell, Esq.
Robert H. Lefkowitz, Esq.
Jennifer Leung, Esq.
Anisha Mirchandani, Esq.
PURCELL & LEFKOWITZ LLP
369 Lexington Avenue, 3rd Floor
New York, NY 10017
Telephone: (212) 725-1000
CALLOOH CALLAY: Miranda Sues Over Unpaid Overtime Wages
-------------------------------------------------------
Ayde Arriola Miranda, individually and on behalf of others
similarly situated v. CALLOOH CALLAY, INC. d/b/a Pressed Cleaners,
a New York Corporation, and JEFFREY CURTIS, an individual, Case No.
1:23-cv-01122 (S.D.N.Y., Feb. 9, 2023), is brought for unpaid
overtime wages pursuant to the Fair Labor Standards Act of 1938
("FLSA"), for violations of the N.Y. Labor Law (the "NYLL"), and
for violations of the "spread of hours" and overtime wage orders of
the New York Commissioner of Labor (the "Spread of Hours Wage
Order"), including applicable liquidated damages, interest,
attorneys' fees, and costs.
Prior to COVID, or until March 2020, the Plaintiff worked 6 days a
week (Monday through Saturday), 7 to 10 hours per day (depending on
the workload). On average, the Plaintiff worked between 42 and 60
hours per week. Although she was on a salary of $600.00 per week,
her full salary was often not tendered, and her paystubs reflected
inaccurate information. After COVID, the number of days worked per
week decreased; however, the Plaintiff was not paid for all the
days that she worked at the agreed rate of $100.00 per day and was
not paid for her overtime. The Defendants willfully kept inaccurate
payroll records to justify failure to pay for all hours worked. The
Defendants failed to pay the Plaintiff any overtime premium (time
and a half) for hours worked over 40 in each workweek. When the
Plaintiff confronted the Defendants regarding the overtime that she
was owed and issues regarding her pay, Defendants would dismiss her
concerns, says the complaint.
The Plaintiff was employed to iron clothes, and her job duties
included pressing shirts, operating the machine to iron clothes,
and such other duties related to pressing laundry.
The Defendant owned and operated a dry cleaner known as Pressed
Cleaners, located in Merrick, New York.[BN]
The Plaintiff is represented by:
Nolan Klein, Esq.
LAW OFFICES OF NOLAN KLEIN, P.A.
5550 Glades Rd., Ste. 500
Boca Raton, FL 33431
Phone: (954) 745-0588
Email: klein@nklegal.com
amy@nklegal.com
melanie@nklegal.com
CARNIVAL CORP: Wiretaps Website Visitors, Price Class Suit Alleges
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INDIA PRICE, individually and behalf of all others similarly
situated v. CARNIVAL CORPORATION, Case No. 3:23-cv-00236-GPC-AHG
(S.D. Cal., Feb. 8, 2023) is a class action brought against
Carnival for wiretapping the electronic communications of visitors
to its website, www.carnival.com in violation of the Invasion of
Privacy Act, Cal. Penal Code and the federal Wiretap Act and for
torts of invasion of the privacy rights and intrusion upon
seclusion of website visitors.
According to the complaint, Carnival procures third-party vendors,
such as Microsoft Corporation, to embed snippets of JavaScript
computer code (Session Replay Code) on Carnival's website, which
then deploys on each website visitor's internet browser for the
purpose of intercepting and recording the website visitor's
electronic communications with the Carnival website, including
their mouse movements, clicks, keystrokes (such as text being
entered into information field or text box), URLs of web pages
visited, and/or other electronic communications in real-time
(Website Communications). These third-party vendors create and
deploy the Session Replay Code at Carnival's request.
After intercepting and capturing the Website Communications,
Carnival and the Session Replay Providers use those Website
Communications to recreate website visitors' entire visit to
www.carnival.com. The Session Replay Providers create a video
replay of the user's behavior on the website and provide it to
Carnival analysis. Carnival's procurement of the Session Replay
Providers to secretly deploy the Session Replay Code results in the
electronic equivalent of "looking over the shoulder" of each
visitor to the Carnival's website for the entire duration of their
10 website interaction, says the suit.
The Plaintiff brings this action individually and on behalf of a
class of:
"all persons in California whose Website Communications were
intercepted through Carnival's procurement and use of Session
Replay Code embedded on the webpages of www.carnival.com and
seeks all civil remedies provided under the causes of action,
including but not limited to compensatory, statutory, and/or
punitive damages, and attorneys' fees and costs."
Plaintiff Price is a citizen of the State of California, and at all
times relevant to this action, resided and was domiciled in
California. Plaintiff currently resides and is domiciled in
California. Plaintiff is a citizen of California.
Carnival is a British-American cruise operator with a combined
fleet of over 100 vessels across 10 cruise line brands. A
dual-listed company.[BN]
The Plaintiff is represented by:
Todd D. Carpenter, Esq.
Katrina Carroll, Esq.
LYNCH CARPENTER, LLP
1350 Columbia St., Ste. 603
San Diego, CA 92101
Telephone: (619) 762-1900
Facsimile: (619) 756-6991
E-mail: todd@lcllp.com
katrina@lcllp.com
- and -
Jonathan M. Jagher, Esq.
FREED KANNER LONDON
& MILLEN LLC
923 Fayette Street
Conshohocken, PA 19428
Telephone: (610) 234-6486
E-mail: jjagher@fklmlaw.com
CAROLYN ROWAN: Slade Files ADA Suit in S.D. New York
----------------------------------------------------
A class action lawsuit has been filed against Carolyn Rowan
Collection LLC. The case is styled as Linda Slade, individually and
as the representative of a class of similarly situated persons v.
Carolyn Rowan Collection LLC, Case No. 1:23-cv-01151 (S.D.N.Y.,
Feb. 10, 2023).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Carolyn Rowan -- https://carolynrowancollection.com/ -- offers
accessories built on the foundation of wearable luxury and
impeccable craftsmanship.[BN]
The Plaintiff is represented by:
Dan Shaked, Esq.
SHAKED LAW GROUP, P.C.
14 Harwood Court, Suite 415
Scarsdale, NY 10583
Phone: (917) 373-9128
Email: shakedlawgroup@gmail.com
CARRIZO (MARCELLUS): Bids for Summary Judgment in Slamon Suit OK'd
------------------------------------------------------------------
In the case, JANIE SLAMON, as Executrix of the Estate of James
Slamon, and ERIC LEWIS, on behalf of themselves and all others
similarly situated, Plaintiffs v. CARRIZO (MARCELLUS) LLC, RELIANCE
MARCELLUS II, LLC, RELIANCE HOLDINGS USA, INC., BKV OPERATING LLC,
and BKV CHELSEA LLC, Defendants, Case No. 3:16-CV-2187 (M.D. Pa.),
Judge Robert D. Mariani of the U.S. District Court for the Middle
District of Pennsylvania:
a. grants each Defendant's Motion for Summary Judgment in its
entirety;
b. denies the Plaintiffs' Partial Motion for Summary Judgment
in its entirety.
Presently before the Court are four motions for summary judgment.
Plaintiffs Janie Slamon as Executrix of James Slamon's Estate, Eric
Lewis, and two certified classes of others similarly situated, have
filed a Motion for Partial Summary Judgment. The three Defendants
in the case have filed motions for summary judgment: Defendants
Carrizo, Reliance Marcellus, and Reliance Holdings (collectively
"Reliance"), and Defendants BKV Operating LLC and BKV Chelsea LLC
(collectively "BKV").
The case concerns a breach of contract claim regarding the
calculation of royalties under the oil and gas leases between the
Defendants, as lessees, and the Plaintiffs, as lessors.
In 2009, James Slamon entered into a Paid Up Oil and Gas Lease with
Carrizo ("Slamon Lease"). Around the same time, Plaintiff Eric
Lewis entered into multiple leases with Carrizo ("Lewis Lease").
Carrizo also entered into or purchased substantially similar leases
with many other landowners in Northeastern Pennsylvania (the "NEPA
Leases"). The "Class Leases" accordingly consist of the NEPA
Leases, the Slamon Lease, and the Lewis Lease. The Class Leases do
not provide for the location at which the Lessee must sell the gas,
nor do they expressly restrict the Lessee's right to choose that
location.
In August 2010, Carrizo assigned Reliance an undivided 60% interest
in the Class Leases. Reliance took its gas in-kind and separately
marketed its share of the gas. Once production began, the
Plaintiffs received two monthly royalty checks: one from Carrizo
and one from Reliance.
Carrizo sold its entire share of the gas produced to DTE Energy
Trading, Inc., an active physical and financial gas, power and
environmental marketing company. BKV acquired Carrizo's and
Reliance's interests in the Class Leases (among others) effective
April 1, 2017. BKV terminated the agreements with DTE and arranged
to sell all gas produced under the Class Leases to Concord Energy,
LLC. BKV and Concord entered into a Gas Marketing Agreement ("GMA")
pursuant to which BKV's subsequent gas sales to Concord would be
governed by an NAESB standard form base contract and Transaction
Confirmations. BKV and Concord have no parent or subsidiary
relationship or common corporate ownership.
Like Carrizo and Reliance, BKV does not conduct any price
comparison under the Highest Price Provision and never referenced
the NYMEX spot price or otherwise engaged in any valuation analysis
under the Highest Price Provision when calculating royalty amounts.
BKV always bases its royalty payments to No Deductions Class
Plaintiffs on the price Concord receives from its downstream
sales.
On Oct. 3, 2016, Plaintiff James Slamon filed a Complaint against
Defendants Carrizo and Reliance in the Susquehanna County Court of
Common Pleas. He alleges Carrizo and Reliance underpaid royalties
on oil and gas leases to him and a class exceeding one hundred
members. The Defendants thereafter removed the case to this Court
on Oct. 31, 2016.
In late-2016, Carrizo and Reliance moved to dismiss the Plaintiffs
Complaint under Federal Rule of Civil Procedure 12(b)(6). On Sept.
5, 2017, the Court dismissed the Plaintiffs breach of fiduciary
duty claim in Count IV of the Complaint with prejudice and denied
the motions to dismiss in all other respects.
On June 15, 2018, the Plaintiff joined BKV as a Defendant. On June
18, 2018, he filed a First Amended Complaint against all the
Defendants.
On Aug. 19, 2019, the Plaintiff moved to substitute a proper party
following the death of Slamon. The Executrix of James Slamon's
Estate, Janie Slamon, was substituted as a proper party on Aug. 22,
2019. On Sept. 9, 2019, the Plaintiffs filed a Second Amended
Complaint against all the Defendants which named Eric Lewis as an
additional plaintiff and proposed class representative. Carrizo and
Reliance filed Answers to the Second Amended Complaint and BKV
filed an Answer as well as crossclaims against them.
The Plaintiffs' Second Amended Complaint seeks declaratory relief
with respect to the proper interpretation of the Leases and the
royalty provisions therein (Count I), damages for breach of
contract, (Count II), damages for breach of contract through a
breach of the implied duty of good faith and fair dealing (Count
III), and an accounting (Count IV).
On July 15, 2019, the Plaintiffs moved to certify three classes of
plaintiffs.
On May 18, 2020, the Court certified two classes of plaintiffs
pursuant to Federal Rule of Civil Procedure 23(a) and 23(b)(3).
First, the Court certified the "Highest Price Class": All persons
or entities within the Commonwealth who are, or have been, a
royalty owner under a Paid Up Oil and Gas Lease with or assigned to
one or more of Defendants where that lease expressly provides that
the value of natural gas on which lessee owes a royalty percentage
is, absent application of a contractual proviso, the greater of the
NYMEX spot price and/or the prevailing local market price, or the
price at which the gas is sold, and where (a) natural gas has been
produced under the lease, (b) the person or entity has received one
or more royalty payments under the lease, and (c) the person or
entity has not released their claims in this matter.
And second, the "No Deductions Class": All persons or entities
within the Commonwealth who are, or have been, a royalty owner
under a Paid Up Oil and Gas Lease with or assigned to one or more
of Defendants where that lease expressly prohibits the deduction of
post-production expenses when calculating royalty amounts due, and
where (a) natural gas has been produced under the lease, (b) the
person or entity has received one or more royalty payments under
the lease, and (c) the person or entity has not released their
claims in this matter.
The Court clarified that the claims certified for class action are
"Count II for breach of contract against all Defendants brought on
behalf of the 'No Deductions Class' and 'Highest Price Class' and
"Count IV requesting an accounting against all Defendants brought
on behalf of the 'No Deductions Class' and 'Highest Price Class.'
It declined to certify a class with respect to Plaintiffs' claim
for breach of the implied duty of good faith and fair dealing.
The Court identified the common issues and defenses subject to
class treatment as follows:
a. With respect to the No Deductions Class the common issues
are: (1) whether Defendants' royalty calculation method deducted
post production costs from the royalties paid to lessors, and (2)
if so, whether the deduction of post production costs violated a
prohibition against such deductions in the lease.
b. With respect to the Highest Price Class, the common issue
is whether the Defendants compared the NYMEX spot price or local
market price to the price received in order to pay lessors the
highest of these prices.
c. Both classes must also determine the common issue of
whether the transactions between Defendants and DTE or Twin Eagle
were, in fact, arms-length sale transactions with unaffiliated
third parties subject to the contractual proviso pursuant to which
the royalty the lessor receives for the gas production is a
percentage of the price paid to the lessee.
Because Carrizo and Reliance present summary judgment arguments
that are substantively the same, and because the Court identifies
no meaningful differences in their performance under the Class
Leases, Judge Mariani first considers their motions together. The
Record reflects that BKV's performance differed from that of
Carrizo and Reliance in some respects, and so Judge Mariani
considers its motion separately. Finally, he considers the
Plaintiffs' partial motion.
Carrizo and Reliance each seek summary judgment on all claims
asserted against them: a breach of contract claim by the Highest
Price Class, a breach of contract claim by the No Deductions Class,
a breach of the implied duty of good faith and fair dealing claim
by the named Plaintiffs in their individual capacities, and a
demand for an accounting.
Judge Mariani holds that Carrizo and Reliance are entitled to
summary judgment on all claims. Among other things, he finds that
(i) the Plaintiffs have produced no evidence to create a triable
issue of fact as to whether the Carrizo/DTE and Reliance/DTE gas
sales were "arms-length sale transactions with an unaffiliated
third party," and therefore the Provided Clause applies as a matter
of law; (ii) the Plaintiffs have produced no evidence that the
Defendants deducted any post-production costs from the values on
which they based their royalties; (iii) Carrizo and Reliance have
not violated their obligations under the Plaintiffs' Leases, and
instead have properly applied the Provided Clause; and (iv) having
failed to demonstrate that Carrizo and Reliance breached the Class
Leases, the Plaintiffs are not entitled to an accounting.
Judge Mariani then addresses BKV's motion separately to address the
few ways in which BKV's performance differs from that of Carrizo
and Reliance. He finds that (i) Carrizo and Reliance have
demonstrated there is no genuine dispute of material fact with
respect to whether the Provided Clause covered their transactions
with DTE; (ii) because Plaintiffs have failed to produce evidence
of any post-production costs, BKV did not violate the No Deductions
Class Leases as a matter of law; and (iii) BKV is entitled to
summary judgment with respect to the Plaintiffs' demand for an
accounting and the named plaintiffs' individual implied duty claims
for the same reasons that Carrizo and Reliance are so entitled.
In light of the foregoing, Judge Mariani grants each Defendant's
Motion for Summary Judgment in its entirety. Because all three
Defendants have shown there is no genuine dispute of material fact
and they are entitled to summary judgment, he denies the
Plaintiffs' Partial Motion for Summary Judgment is denied.
A full-text copy of the Court's Feb. 7, 2023 Memorandum Opinion is
available at https://tinyurl.com/mr3txytp from Leagle.com.
CITIBANK NA: Cassese Sues Over Unauthorized Transactions
--------------------------------------------------------
Denise Cassese and Louis Caligiuri, on behalf of themselves and all
others similarly situated v. CITIBANK, N.A., Case No. 1:23-cv-01157
(S.D.N.Y., Feb. 10, 2023), is brought to vindicate their rights for
unauthorized transactions Citibank is obligated to prevent and
remedy and refund; and for damages, restitution and reimbursement,
as well as injunctive relief, pursuant to the Electronic Fund
Transfer Act ("EFTA"), the New Jersey Consumer Fraud Act, New York
General Business Law, negligence and unjust enrichment.
The Plaintiffs were the victims of identity theft in May 2022,
resulting the electronic theft of over $14,000.00 from their
Citibank savings account. Plaintiffs immediately notified Citibank,
and the police, of the electronic theft. Citibank conceded the
identity theft to Plaintiffs and that it permitted unknown
third-parties to electronically steal and electronically transfer
money belonging to Plaintiffs from their Citibank savings account.
Citibank has refunded some of the stolen money to Plaintiffs that
it was able to recover. However, adhering to Citibank's own flawed
policies and despite Plaintiffs' many complaints, Citibank has
unlawfully refused to refund over $4,400.00 that Citibank permitted
to be stolen and electronically transferred from Plaintiffs'
Citibank savings account. Citibank's policy and practice is to
assess blame for the identity theft on the victims even where none
exists, as here, so that Citibank can avoid refunding the stolen
electronic transfers, says the complaint.
The Plaintiffs Denise Cassese and Louis Caligiuri, mother and son,
were residents and citizens of the State of New York.
Citibank is one of the largest national banks and one of the
largest mortgage lenders in the country.[BN]
The Plaintiffs are represented by:
Joseph S. Tusa, Esq.
TUSA P.C.
P.O. Box 566
55000 Main Road, 2nd Fl.
Southold, NY 11971
Phone: (631) 407-5100
Email: joseph.tusapc@gmail.com
- and -
Joseph P. Guglielmo, Esq.
SCOTT+SCOTT ATTORNEYS AT LAW LLP
The Helmsley Building
230 Park Avenue, 17th Fl.
New York, NY 10169
Phone: (212) 223-6444
Email: jguglielmo@scott-scott.com
COCA-COLA CO: Hawkins' 1st Amended Suit Dismissed With Prejudice
----------------------------------------------------------------
In the case, JANIE HAWKINS, individually and on behalf of all
others similarly situated, Plaintiff v. THE COCA-COLA COMPANY,
Defendant, Case No. 21-CV-8788 (KMK) (S.D.N.Y.), Judge Kenneth M.
Karas of the U.S. District Court for the Southern District of New
York grants the Defendant's Motion to Dismiss the First Amended
Complaint.
Hawkins brings the putative class action against the Defendant,
alleging that the labeling on its Fanta brand "Pina Colada
flavored" soda is deceptive and misleading. She brings claims for
damages against the Defendant for (1) violation of Sections 349 and
350 of the New York General Business Law ("GBL"), N.Y. G.B.L.
Sections 349, 350; (2) common law breach of express warranty; and
(3) common law fraud.
The Defendant is a multinational beverage corporation with its
principal place of business in Atlanta, Georgia. Included in the
Defendant's product lines is Fanta, a brand of flavored soda with
various varieties based on "real fruit flavors." As relevant to the
instant Action, the Defendant manufactures a "pina colada flavored"
variety of Fanta which it represents on the label as containing
"100% Natural Flavors." The Plaintiff also cites the digital and
print marketing of the Product, which features similar images of
pineapples and coconut coupled with the assertion that there are
100% natural flavors in the Product.
The Plaintiff alleges that the Product's advertisements are false,
deceptive, and misleading because the Product contains artificial
flavoring ingredients. Specifically, the Product's ingredients list
"Malic Acid" as a component of the soda, directly after natural
flavors. The Plaintiff specifically alleges that laboratory
analysis concluded this Product contains artificial, DL-Malic Acid
instead of natural, L-Malic Acid.
In at least October 2021, the Plaintiff purchased the product "on
one or more occasions" at various stores. She alleges that she
purchased the Product because the packaging claimed it contained
'100% Natural Flavors' and that the only natural flavors were
responsible for the Pina Colada and pineapple and coconut taste.
Without this, she alleges that she would not have purchased the
Product if she knew the representations and omissions were false
and misleading or would have paid less for it.
The Plaintiff filed her initial Complaint on Oct. 28, 2021. On
March 22, 2022, the Defendant filed a pre-motion letter in
anticipation of filing a motion to dismiss the original Complaint,
but on April 8, 2022, the Plaintiff filed the FAC.
On April 22, 2022, the Defendant filed another pre-motion letter in
anticipation of filing a motion to dismiss the FAC. Following the
Plaintiff's response to the Defendant's pre-motion letter, the
Court held a pre-motion conference on May 17, 2022. Pursuant to the
briefing schedule adopted at the conference, the Defendant filed
the instant Motion on June 17, 2022. The Plaintiff filed her
Opposition on July 15, 2022, and the Defendant filed its Reply on
July 29, 2022.
The Defendant argues that (1) the Plaintiff fails to state a
plausible claim under the GBL because she alleges conclusory and
contradictory allegations to suggest that Fanta's label would
mislead a reasonable consumer; (2) she has failed to state a claim
for breach of express warranty because she failed to provide the
Defendant with pre-suit notice; and (3) the Plaintiff has failed to
plead fraud with particularity, as required under Rule 9(b).
Judge Karas opines that (i) the Product's labeling would not
mislead a reasonable consumer; (ii) the Plaintiff has failed to
adequately allege that he provided the Defendant with any manner of
pre-suit notice; and (iii) it is well-settled that a company's
general profit motive is insufficient to plead scienter.
For the foregoing reasons, Judge Karas grants the Defendant's
Motion.
The Plaintiff has requested that should the Court grants the
Defendant's motion, it grants her leave to file a Second Amended
Complaint.
Judge Karas holds that the Plaintiff has already amended her
complaint once after being prompted by a pre-motion letter from
Defendant stating all of the grounds on which it would move to
dismiss. Moreover, she has failed to otherwise suggest that she is
in possession of facts that would cure the deficiencies that the
Defendants highlighted in the instant motion and that Judge Karas
highlighted in his Opinion. As such, he dismisses the Plaintiff's
Amended Complaint with prejudice.
The Clerk of the Court is directed to terminate the pending motion,
enter judgment for the Defendant, and to close the case.
A full-text copy of the Court's Feb. 7, 2023 Opinion & Order is
available at https://tinyurl.com/mr3pkncs from Leagle.com.
Jonathan Shub, Esq. -- jshub@shublawyers.com -- Shub Law Firm LLC,
Haddonfield, NJ, Counsel for the Plaintiff.
Spencer Sheehan, Esq. -- spencer@spencersheehan.com -- Sheehan &
Associates, P.C., Great Neck, NY, Counsel for the Plaintiff.
Dakotah Burns, Esq. -- dburns@pbwt.com -- Jane Metcalf, Esq. --
jmetcalf@pbwt.com -- Steven A. Zalesin, Esq. -- sazalesin@pbwt.com
-- Patterson Belknap Webb & Tyler LLP, New York, NY, Counsel for
the Defendant.
COINBASE GLOBAL: Underwood Appeals Suit Dismissal to 2nd Circuit
----------------------------------------------------------------
CHRISTOPHER UNDERWOOD, et al. are taking an appeal from a court
order dismissing their lawsuit entitled Christopher Underwood, et
al., on behalf of themselves and all others similarly situated,
Plaintiffs, v. Coinbase Global, Inc., et al., Defendants, Case No.
1:21-cv-08353-PAE, in the U.S. District Court for the Southern
District of New York.
The case involves the modern financial concoctions known as crypto
assets. Also sometimes called "cryptocurrencies," "tokens," or
"crypto-securities," these are digital assets created and traded in
the digital world.
Coinbase operates two online digital trading platforms on which
users can transact in the cryptoeconomy. The Amended Complaint
("AC") alleges that among the assets that Coinbase enables
customers to buy and sell on these platforms are ones qualifying as
securities. It alleges that these include 79 digital assets known
as the "Tokens." It alleges that, notwithstanding Coinbase's
practice of transacting in these securities with the Plaintiffs and
other users, Coinbase is not registered with the U.S. Securities
and Exchange Commission ("SEC") as an exchange or broker-dealer.
On this basis, the Lead Plaintiffs -- each of whom transacted in
the Tokens on the Coinbase platform -- bring three sets of claims:
(1) under Section 12(a)(1) of the Securities Act of 1933, for
damages arising from Coinbase's sale or solicitation of
unregistered securities; (2) under Section 29(b) of the Securities
Exchange Act of 1934, arising from illegal contracts Coinbase
entered into with its users to purchase and sell securities in
violation of the Exchange Act's registration requirements; and (3)
under state law, based on Coinbase's sale of unregistered
securities and failure to register as a broker-dealer.
They also bring control-person claims against Coinbase Global and
its CEO, Armstrong, who allegedly orchestrated Coinbase's strategy
to profit by violating the securities laws. These claims are
brought on behalf of a nationwide class consisting of all persons
or entities who transacted in the Tokens on the Coinbase trading
platforms between Oct. 8, 2019 and the AC's filing on March 11,
2022 (the "class period"), and of subclasses keyed to citizens of
three states who so traded during that period.
The Plaintiffs seek certification of a nationwide class defined as
"all persons or entities who transacted in the Tokens on the
Coinbase Platform and/or the Coinbase Pro Platform during the Class
Period." They also seek certification of three subclasses: (1) "all
persons or entities who transacted in the Tokens on a Coinbase
platform during the Class Period while in the State of California";
(2) "all persons or entities who transacted in the Tokens on a
Coinbase platform during the Class Period while in the State of
Florida"; and (3) "all persons or entities who transacted in the
Tokens on a Coinbase platform during the Class Period while in the
State of New Jersey."
On May 10, 2022, the Defendants moved to dismiss the Amended
Complaint, which the Court granted through an Order entered by
Judge Paul A. Engelmayer on Feb. 1, 2023. The Court dismissed all
claims in the Amended Complaint. The federal claims were dismissed
with prejudice. The state-law claims were also dismissed without
prejudice, and the Clerk of Court was directed to close the case.
The appellate case is captioned Christopher Underwood, et al. v.
Coinbase Global, Inc., et al., Case No. 23-0184, in the United
States Court of Appeals for the Second Circuit, filed on February
9, 2023. [BN]
Plaintiffs-Appellants CHRISTOPHER UNDERWOOD, et al., on behalf of
themselves and all others similarly situated, are represented by:
Steven L. Bloch, Esq.
Ian W. Sloss, Esq.
SILVER GOLUB & TEITELL LLP
184 Atlantic Street
Stamford, CT 06901
Telephone: (203) 325-4491
Email: sbloch@sgtlaw.com
isloss@sgtlaw.com
- and -
Jordan A. Goldstein, Esq.
SELENDY GAY ELSBERG PLLC
1290 Avenue of the Americas
New York, NY 10104
Telephone: (212) 390-9000
Email: jgoldstein@selendygay.com
Defendants-Appellees COINBASE GLOBAL, INC., et al. are represented
by:
Jay B. Kasner, Esq.
Abigail Elizabeth Davis, Esq.
Alexander C. Drylewski, Esq.
Lara A. Flath, Esq.
SKADDEN, ARPS, SLATE, MEAGHER & FLOM LLP
One Manhattan West
New York, NY 10001
Telephone: (212) 735-2628
Facsimile: (917) 777-2628
Email: jkasner@skadden.com
abigail.sheehan@skadden.com
alexander.drylewski@skadden.com
lara.flath@skadden.com
COLGATE-PALMOLIVE: Dixon Sues Over Deceptive & Misleading Labeling
------------------------------------------------------------------
Elizabeth Dixon, individually and on behalf of all others similarly
situated v. COLGATE-PALMOLIVE (AMERICA) INC., COLGATE-PALMOLIVE
HOLDING INC., COLGATE-PALMOLIVE INTERNATIONAL LLC, COLGATE
PALMOLIVE INVESTMENTS INC., GABA HOLDINGS DELAWARE, LLC, Case No.
1:23-cv-00038 (D.N.C., Feb. 10, 2023), is brought as a result of
the Defendants' improper, deceptive, and misleading labeling,
manufacturing, marketing, and sale of Defendants' Fabuloso brand
cleaning products1 ("Recalled Products") throughout the state of
North Carolina and the country.
The Defendants have improperly, deceptively, and misleadingly
labeled and marketed its Recalled Products to reasonable consumers,
like Plaintiff, by omitting and not disclosing to consumers on its
packaging that consumption of the Recalled Products may increase
the risk of contracting invasive infections.
The Recalled Products contain Pseudomonas aeruginosa and
Pseudomonas fluorescens bacteria, which could lead to serious and
life-threatening adverse health consequences. The risk of serious
infection is also particularly concerning for immunocompromised
individuals that are highly susceptible to life threatening
diseases and even death from Pseudomonas aeruginosa and Pseudomonas
fluorescens bacteria ingestion. This is egregious, especially
because people are spreading this bacteria all over their homes by
using a product that is supposed to clean their home.
The Defendants specifically list both the active and inactive
ingredients of the Recalled Products on the labeling; however,
Defendants fail to disclose that the Recalled Products contain, or
are at the risk of containing, Pseudomonas aeruginosa and
Pseudomonas fluorescens bacteria. Consumers like the Plaintiff
trust manufacturers such as Defendants to sell products that are
safe and free from harmful known substances, including Pseudomonas
aeruginosa and Pseudomonas fluorescens bacteria.
The Plaintiff certainly expect that the cleaning products they
purchase will not contain, or risk containing, any knowingly
harmful substances that are not disclosed. Unfortunately for
consumers, like Plaintiff, the cleaning products they purchased
contain Pseudomonas aeruginosa and Pseudomonas fluorescens
bacteria. The Plaintiff and Class Members relied on Defendants'
misrepresentations and omissions of the safety of the Recalled
Products and what is in the Recalled Products when they purchased
them Consequently, Plaintiff and Class Members lost the entire
benefit of their bargain when what they received was a cleaning
product contaminated with a known bacterium that is harmful to
consumers health, and lives, which is even more so true for
immunocompromised individuals, says the complaint.
The Plaintiff purchased the Defendants' Fabuloso Product that was
subject to the recall.
Colgate Palmolive manufactures, markets, advertises, and sells
cleaning products to clean surfaces in the home.[BN]
The Plaintiff is represented by:
Blake G. Abbott, Esq.
Paul J. Doolittle, Esq.
POULIN | WILLEY | ANASTOPOULO, LLC
32 Ann Street
Charleston, SC 29403
Phone: (843) 614-8888
Email: blake@akimlawfirm.com
pauld@akimlawfirm.com
COLONIAL MANAGEMENT: Flynn Sues to Recover Unpaid Overtime Wages
----------------------------------------------------------------
Vickie Flynn, individually and for others similarly situated v.
COLONIAL MANAGEMENT GROUP, L.P. d/b/a NEW SEASON, Case No.
1:23-cv-00128-LF-SCY (D.N.M., Feb. 10, 2023), is brought to recover
unpaid overtime wages and other damages from the Defendant under
the Fair Labor Standards Act ("FLSA"), and the New Mexico Minimum
Wage Act ("NMMWA").
The Defendant subjected the Plaintiff to a common policy and
practice of automatically deducting time from these employees'
recorded hours worked and wages for meal periods. But the Defendant
fails to provide these employees with bona fide meal periods.
Instead, the Defendant requires the Plaintiff to remain on duty
throughout their shifts, continuously subjecting them to
interruptions, even during their unpaid meal periods. Thus, under
the Defendant's common policies and practices, the Plaintiff are
not completely relieved of all duties during meal periods and are
denied pay for those on-duty meal periods in violation of the FLSA
and NMMWA, says the complaint.
The Plaintiff has worked for New Season as a Licensed Practical
Nurse (LPN) in Albuquerque, New Mexico since September 2021.
New Season bills itself as "a leading provider of specialized
quality care of Opioid Use Disorder (OUD)" that operates "more than
80 addiction treatment centers in 20 states nationwide."[BN]
The Plaintiff is represented by:
Michael A. Josephson, Esq.
Andrew W. Dunlap, Esq.
JOSEPHSON DUNLAP, LLP
11 Greenway Plaza, Suite 3050
Houston, TX 77046
Phone: 713.352.1100
Facsimile: 713.352.3300
Email: mjosephson@mybackwages.com
adunlap@mybackwages.com
- and -
Richard J. (Rex) Burch, Esq.
BRUCKNER BURCH PLLC
11 Greenway Plaza, Suite 3025
Houston, TX 77046
Phone: (713) 877-8788
Facsimile: (713) 877-8065
Email: rburch@brucknerburch.com
CREATION MAINTENANCE: Faces Jackson Suit Over Unpaid OT Wages
-------------------------------------------------------------
TRAVIS JACKSON, individually and on behalf of all others similarly
situated, Plaintiff v. CREATION MAINTENANCE INC. and ROBERT APSEY,
Defendants, Case No. 6:23-cv-00038-WWB-LHP (M.D. Fla., January 9,
2023) is a collective action complaint brought against the
Defendants for their alleged willful violations of the overtime
provision of the Fair Labor Standards Act.
The Plaintiff was hired by the Defendants as an hourly paid,
non-exempt employee under the title of lawn care worker in November
2020.
According to the complaint, although the Plaintiff and other
similarly situated lawn care workers routinely worked overtime
hours, the Defendants willfully refused to pay them overtime
compensation at the rate of one and one-half times their regular
rates of pay for all hours worked in excess of 40 per workweek.
Instead, the Defendant paid them straight time regardless of the
number of hours worked.
On behalf of himself and all other similarly situated past and
present Laborers, the Plaintiff seeks to recover all unpaid
overtime compensation, liquidated damages of an equal amount of the
overtime compensation, reasonable attorneys' fees and litigation
costs and expenses, pre- and post-judgment interest, and other
equitable relief as the Court may deem appropriate.
Creation Maintenance Inc. provides lawn care services. Robert Apsey
is the owner of the Corporate Defendant. [BN]
The Plaintiff is represented by:
Mitchell Feldman, Esq.
FELDMAN LEGAL GROUP
6916 W. Linebaugh Ave #101
Tampa, FL 33625
Tel: (813) 639-9366
Fax: (813) 639-9376
E-mail: mfeldman@flandgatrialattorneys.com
CREDIT ONE BANK: McQueen Sues Over Unlawful Credit Reporting
------------------------------------------------------------
Yvette McQueen, on behalf of herself and those similarly situated
v. CREDIT ONE BANK, N.A.; and JOHN DOES 1 to 10, Case No.
BER-L-000785-23 (N.J. Super. Ct., Bergen Cty., Feb. 8, 2023), is
brought to secure redress for the Defendants' course of conduct
that included accessing the Plaintiff's credit report without
consent or any lawful reason, which is in violation of the Fair
Credit Reporting Act.
The Plaintiff did not seek credit of any type from the Defendants.
There was no other in personam relationship established or created
between the Plaintiff and the Defendants. Despite the absence of
any in personam credit relationship between the Plaintiff and the
Defendants, and despite the lack of any consent, the Defendants
accessed the Plaintiff's personal information. From March 19, 2019,
to December 15, 2022, the Defendants accessed information from a
consumer reporting agency about the Plaintiff without her
authorization through approximately 29 "unspecified" inquiries.
The Plaintiff first found out about the Defendants continued
unauthorized access on April 8, 2021, when she obtained her
Experian credit report. This Experian credit report shows that
Credit One made 15 inquiries on Plaintiff's credit report. The
Plaintiff obtained a new Experian credit report on September 14,
2021, which shows that Credit One made 3 more inquiries.
On January 6, 2023, the Plaintiff obtained another Experian credit
report, which shows 10 new inquiries made by Credit One. The
Plaintiff also obtained a Transunion credit report on January 6,
2023, which shows that Credit One made another inquiry on May 24,
2022. The Plaintiff had not requested credit from the Defendants.
The Plaintiff did not have any credit relationship with the
Defendants. The Plaintiff had not authorized the Defendants to
obtain her private credit report or any information. The volume of
inquiries made on the Plaintiff's credit report indicates that the
Defendants acted willfully and knowingly when each inquiry was
made, says the complaint.
The Plaintiff is an individual who was a resident and domiciled in
the State of New Jersey.
The Defendants are in the business of "offering a full range of
consumer credit card products."[BN]
The Plaintiff is represented by:
Yongmoon Kim, Esq.
Hasan Siddiqui, Esq.
KIM LAW FIRM LLC
411 Hackensack Avenue, Suite 701
Hackensack, NJ 07601
Phone & Fax: (201) 273-7117
Email: ykim@kimlf.com
hsiddiqui@kimlf.com
CREDIT PROS: Wells TCPA Suit Removed to S.D. Florida
----------------------------------------------------
The case styled as Martine Wells, individually and on behalf of all
other similarly situated v. The Credit Pros International, LLC,
Case No. 50-02022-CA-012258XXXXMB was removed from the 15th Judical
Circuit, to the U.S. District Court for the Southern District of
Florida on Feb. 9, 2023.
The District Court Clerk assigned Case No. 9:23-cv-80219-XXXX to
the proceeding.
The lawsuit is brought over alleged violation of the Telephone
Consumer Protection Act for Restrictions of Use of Telephone
Equipment.
The Credit Pros -- https://thecreditpros.com/ -- is the nation's
leading technology-enabled credit repair company.[BN]
The Plaintiff is represented by:
Manuel Santiago Hiraldo
HIRALDO PA
401 E Las Olas Blvd., Ste. 1400
Ft Lauderdale, FL 33301
Phone: (954) 400-4713
Email: mhiraldo@hiraldolaw.com
- and -
Michael Eisenband, Esq.
EISENBAND LAW, P.A.
515 E Las Olas Blvd., Suite 120
Fort Lauderdale, FL 33301
Phone: (954) 533-4092
Email: meisenband@Eisenbandlaw.com
The Defendant is represented by:
Jamey Robert Campellone, Esq.
GREENSPOON MARDER LLP
200 East Broward Boulevard, Suite 1800
Ft. Lauderdale, FL 33301
Phone: (954) 527-6296
Fax: (954) 333-4296
Email: jamey.campellone@gmlaw.com
DIRECTV LLC: Appeals Attorneys' Fee Ruling in Perez Suit to 9th Cir
-------------------------------------------------------------------
DIRECTV, LLC, et al. are taking an appeal from a court order
granting in part the Plaintiffs' motion for award of attorneys'
fees and costs and enhancement awards in the lawsuit entitled
Doneyda Perez, individually and on behalf of all others similarly
situated, Plaintiffs, v. DirecTV, LLC, et al., Defendants, Case No.
8:16-cv-01440-JLS-DFM, in the U.S. District Court for the Central
District of California.
As previously reported in the Class Action Reporter, the lawsuit is
brought by the Plaintiffs against the Defendants over alleged
violations of the Racketeer Influenced and Corrupt Organizations
Act.
On Nov. 23, 2022, the Plaintiffs filed a memorandum in support of
their motion for attorneys' fees, costs, and enhancement awards,
which the Court granted in part through an Order entered by
Josephine L. Staton. The Court granted an award of attorneys' fees
in the amount of $3,133,333.33. The Court granted Doneyda Perez a
Class Representative enhancement award of $20,000. The Court also
granted Class Representative enhancement awards of $7,500 each to
Joseph Angelo, Danny Nissen, Marlys Nissen, Paul Holt, and Gregory
Laplante. The Court further stated that it will hold a final
accounting hearing on May 24, 2024.
The appellate case is captioned Doneyda Perez v. DIRECTV, LLC, et
al., Case No. 23-55131, in the United States Court of Appeals for
the Ninth Circuit, filed on February 10, 2023.
The briefing schedule in the Appellate Case states that:
-- Appellants Julie Cohen Lonstein, Wayne M. Lonstein and
Lonstein Law Offices, P.C. Mediation Questionnaire was due on
February 17, 2023;
-- Appellant transcript is due on April 11, 2023;
-- Appellant Beth Bowen opening brief is due on May 15, 2023;
-- Appellants Julie Cohen Lonstein, Wayne M. Lonstein and
Lonstein Law Offices, PC opening brief is due on May 22, 2023;
-- Appellee Doneyda Perez answering brief is due on June 22,
2023; and
-- Appellant's optional reply brief is due 21 days after service
of the answering brief. [BN]
Plaintiffs-Appellees DONEYDA PEREZ, et al., individually and on
behalf of all others similarly situated, are represented by:
Kevin Mahoney, Esq.
MAHONEY LAW GROUP, APC
249 East Ocean Boulevard
Long Beach, CA 90802
Telephone: (562) 590-5550
- and -
Katherine J. Odenbreit, Esq.
MAHONEY LAW GROUP, APC
249 East Ocean Boulevard
Long Beach, CA 90802
Telephone: (562) 590-5550
Defendants-Appellants DIRECTV, LLC, et al. are represented by:
Amy Zamir, Esq.
NESENOFF AND MILTENBERG LLP
363 Seventh Ave., 5th Floor
New York, NY 10001
Telephone: (212) 736-4500
DMW INDUSTRIES: Denial of Alcaraz's Class Cert. Bid Upheld in Part
------------------------------------------------------------------
In the case, RAUL ALCARAZ, et al., Plaintiffs and Appellants v. DMW
INDUSTRIES, INC., Defendant and Respondent, Case No. F082417 (Cal.
App.), the Court of Appeals of California for the Fifth District
affirms in part and reverses in part the order of the Kern County
Superior Court denying the Plaintiffs' motion for class
certification.
Plaintiffs/Appellants Raul Alcaraz and Robert Mann appeal from an
order of the Kern County Superior Court denying their motion for
class certification in connection with various class action claims
asserted against the Plaintiffs' former employer, DMW.
On May 14, 2015, Alcaraz filed a class action complaint against DMW
and Does 1 through 50 alleging various causes of action for Labor
Code violations, and unfair and unlawful business practices under
Business and Professions Code section 17200 (section 17200 claim).
The complaint also included a cause of action under the Labor Code
Private Attorneys General Act of 2004 (PAGA) (Lab. Code, Section
2698 et seq.). On July 15, 2015, DMW demurred to the complaint in
lieu of filing an answer.
On Sept. 18, 2015, the Plaintiffs filed a first amended class
action complaint alleging the same or similar causes of action. It
was at that time that Mann, also a former employee of DMW, was
first joined as a named plaintiff in the case.
On Nov. 18, 2015, upon the parties' stipulation, the trial court
granted the Plaintiffs leave to file a second amended complaint
which was filed that same day. The recitals in the parties'
stipulation indicate they had reached an agreement the amendments
would reflect that Alcaraz is bringing the sixth cause of action
for PAGA, and that Mann is bringing the class claims.
The complaint was amended several times thereafter culminating in
the Plaintiffs' fifth amended class action complaint (governing
complaint) filed on Nov. 20, 2018. As with the preceding versions,
the fifth amended complaint alleged the same or similar causes of
action as the initial complaint.
On Dec. 26, 2018, DMW answered the governing complaint. It
generally denied the Plaintiffs' claims and alleged 26 affirmative
defenses.
On June 25, 2020, the Plaintiffs filed a motion for class
certification. On Dec. 4, 2020, the trial court issued its ruling
to deny the Plaintiffs' motion. The order adopting the Court's
ruling was entered on Jan. 14, 2021, and notice of its entry was
given on Feb. 1, 2021.
On Feb. 16, 2021, upon the request of Alcaraz, the clerk of court
dismissed Alcaraz's PAGA claim without prejudice.
On Feb. 18, 2021, the Plaintiffs timely appealed the subject
order.
DMW contends both Mann and Alcaraz lack standing to bring this
appeal and that the Court of Appeals is precluded from reaching the
merits of the appeal. The Plaintiffs' counsel conceded during oral
argument that their office had lost contact with Mann after the
appellate briefing was completed and that the instant appeal should
now be construed as being brought only on behalf of Alcaraz. Based
on this concession, the Court of Appeals finds that Mann has
abandoned the appeal and do not address his standing in this
opinion. However, it finds that Alcaraz has standing to pursue the
appeal.
The Court of Appeals concludes, among other things, that certain
class claims at issue present predominant common questions of law
and fact with regard to liability whereas others do not. In doing
so, however, it wishes to clearly state that its opinion should not
be construed as directing the trial court to certify the class for
each, or any, of those class claims. Rather, it remands to the
trial court to continue its analysis of the remaining
considerations relevant to class certification.
The Court of Appeals also notes that, in denying class
certification for the claims we identify herein as presenting
predominant common questions of law and fact (the rest and meal
break claims and steel-toe boot reimbursement claims), the trial
court identified numerous considerations that will remain relevant
to the rest and meal break claims once the court resumes its
analysis and which it will need to consider anew.
However, the Court of Appeals views those considerations as
relating primarily to the manageability of individual issues
related to damages, rather than whether common questions of law and
fact predominate as to liability issues. Because it analyzes the
propriety of an order denying class certification based solely on
the lower court's stated reason for its decision and ignore any
other grounds which might support denial, it is precluded from
ruling on the manageability of individual issues independent of the
trial court. The trial court is best positioned to make such
judgment calls.
Finally, the Court of Appeals wishes to acknowledge the relatively
unusual nature of DMW employee field work. Without making any
findings or pronouncements in that regard, it acknowledges issues
pertaining to class certification may be complicated by the nature
of their work. Again, the trial court is best positioned to assess
these issues and their significance with regard to class
certification.
For these reasons, the Court of Appeals affirms the trial court's
order denying class certification with regard to the Plaintiffs'
proposed overtime and minimum wage subclasses is affirmed. It
affirms the trial court's order denying class certification of the
business reimbursement subclass except as to claims related to the
reimbursement for steel-toe boots.
The Court of Appeals reverses the trial court's order denying class
certification as to the remainder of the Plaintiffs' proposed
subclasses (i.e., the meal period, alternative meal period, rest
break and business reimbursement for steel-toe boots subclasses)
and remands to the trial court to reconsider and redetermine class
certification in light of the views expressed in its Opinion.
The trial court will allow the parties further briefing
opportunities with respect to the following: (1) the determination
of whether individualized issues pertaining to claims of the
remaining subclasses subject to potential class certification are
manageable and whether class certification will result in
substantial benefits for the litigants and court alike; (2) the
determination of whether the proposed class representative has
claims or defenses typical of the class, and whether he or she can
adequately represent the class; (3) in the event the Plaintiffs
desire to propose a different class representative, whether the
Plaintiffs should be granted leave to amend for that purpose; and
(4) whether the derivative claims (i.e., the Plaintiffs' third,
fourth, and seventh causes of action) are appropriate for class
certification consistent with its Opinion.
In the interest of justice, each party will bear their own costs on
appeal.
A full-text copy of the Court's Feb. 7, 2023 Opinion is available
at https://tinyurl.com/5dmthc3w from Leagle.com.
Justice Law Corporation, Douglas Han -- info@justicelawcorp.com --
Shunt Tatavos-Gharajeh, and Talia Lux, for the Plaintiffs and
Appellants.
Belden Blaine Raytis, T. Scott Belden -- scott@bbr.law -- and Kaleb
L. Judy -- kaleb@bbr.law; Hodges Law Group and Nathan M. Hodges --
nathan@hodges-lawgroup.com -- for the Defendant and Respondent.
EIGER BIOPHARMACEUTICALS: Levi & Korsinsky Named as Lead Counsel
----------------------------------------------------------------
In the case, RONALD A. SCHOEN, Plaintiff v. EIGER
BIOPHARMACEUTICALS, INC., et al., Defendants, Case No.
22-cv-06985-RS (N.D. Cal.), Judge Richard Seeborg of the U.S.
District Court for the Northern District of California appoints:
a. Shane Skinner as the Lead Plaintiff; and
b. Levi & Korsinsky, LLP, as the Lead Counsel.
On Nov. 8, 2022, Schoen filed a complaint on behalf of a purported
class of similarly situated shareholders against Eiger, a
biopharmaceutical company focusing on therapies for rare diseases;
as well as individual Defendants David A. Cory, Eiger's President
and CEO, and Sriram Ryali, Eiger's CFO. The Complaint alleges that
between March 10, 2021 and Oct. 4, 2022, Eiger made materially
false and misleading statements regarding its business, operations,
and compliance policies -- specifically, as relating to its product
peginterferon lambda, a candidate for treatment of COVID-19.
Based on the results of a study (the "TOGETHER study"), Eiger
announced in March 2022 that it would submit an Emergency Use
Authorization (EUA) to the Food and Drug Administration for the use
of peginterferon lambda in treating patients with mild to moderate
COVID-19.
On Sept. 6, 2022, however, Eiger issued a press release stating
that the FDA indicated it was not able to determine if the EUA
criteria would be met; and on Oct. 5, 2022, it finally announced
that it was no longer seeking an EUA request, and that the FDA had
voiced concerns about the conduct of the TOGETHER study.
Eiger's stock price fell 29.6% and 5.01% on those two dates,
respectively -- a fall of $2.51 and $0.37 per share -- finally
closing at $7.02 per share on Oct. 5, 2022. On the basis of these
events, the Complaint alleged that Eiger was liable for violations
of the Exchange Act.
On Jan. 9, 2023, three putative class members each filed a motion
seeking appointment as the Lead Plaintiff and of their attorneys as
the Lead Counsel: Skinner (represented by Levi & Korsinsky); James
Tomaiko (represented by The Rosen Law Firm, P.A.) (Dkt. 16); and
George Fareed (represented by Pomerantz LLP). On Janu. 23, 2023,
Tomaiko and Fareed both filed notices of Non-Opposition. As a
result, all lead plaintiff movants, except Skinner, have filed
non-oppositions to the competing motions for appointment as lead
plaintiff.
Judge Seeborg finds that Skinner suffered a loss of approximately
$282,523.90, as compared with $8,872.49 for Tomaiko and $7,713 for
Fareed. In addition to suffering the greatest financial loss,
Skinner has also made a prima facie showing of typicality and
adequacy. Because Skinner has the greatest financial interest and
preliminarily satisfies the two Rule 23 factors relevant at this
stage, he is presumptively the most adequate plaintiff.
Furthermore, as no opposition has been raised, this presumption
holds.
Generally, the lead plaintiff shall, subject to the approval of the
court, select and retain counsel to represent the class. Skinner
selected Levi & Korsinsky to represent him, and the firm appears to
have adequate experience in securities actions, as well as the
resources and financial ability to be lead counsel.
For the reasons he discussed, Judge Seeborg appoints Skinner as the
Lead Plaintiff, and his designated attorneys at Levi & Korsinsky,
are appointed as the Lead Counsel. The competing motions by Tomaiko
and Fareed are denied.
A full-text copy of the Court's Feb. 3, 2023 Order is available at
https://tinyurl.com/574mfvey from Leagle.com.
ENERGIZER HOLDINGS: Bowen Appeals Case Dismissal to 9th Circuit
---------------------------------------------------------------
BETH BOWEN is taking an appeal from a court order dismissing her
second amended complaint (SAC) in the lawsuit entitled Beth Bowen,
individually and on behalf of all others similarly situated,
Plaintiff, v. Energizer Holdings, Inc., et al., Defendants, Case
No. 2:21-cv-04356-MWF-AGR, in the U.S. District Court for the
Central District of California.
As previously reported in the Class Action Reporter, the Plaintiff
filed a lawsuit against the Defendants for violations of the Unfair
Competition Law and the False Advertising Law.
According to the complaint, the Defendants are engaged in deceptive
and misleading advertising, labeling, and marketing of sunscreen
products under their brand name Banana Boat. The Defendants failed
to disclose in the products' label the presence of benzene, a known
human carcinogen. The Plaintiff and Class members would not have
purchased the sunscreen products had they known there was a risk
the products may contain benzene. As a result, they suffered injury
in fact when they spent money to purchase sunscreen products they
would not otherwise have purchased absent the Defendants'
misconduct, the suit alleges.
On July 23, 2021, the Plaintiff filed her first amended complaint
(FAC), which the Defendants moved to dismiss on Aug. 30, 2021.
On Aug. 29, 2022, the Court granted the Defendants' motion to
dismiss the Plaintiff's FAC through an Order entered by Judge
Michael W. Fitzgerald.
On Sept. 9, 2022, the Plaintiff filed her SAC, which the Defendants
again moved to dismiss on Sept. 23, 2022.
On Jan. 5, 2023, the Court granted the Defendants' motion to
dismiss the SAC without leave to amend. The action was dismissed
without prejudice for lack of subject-matter jurisdiction.
The appellate case is captioned Beth Bowen v. Energizer Holdings,
Inc., et al., Case No. 23-55116, in the United States Court of
Appeals for the Ninth Circuit, filed on February 6, 2023.
The briefing schedule in the Appellate Case states that:
-- Appellant Beth Bowen Mediation Questionnaire was due on
February 13, 2023;
-- Appellant transcript is due on April 4, 2023;
-- Appellant Beth Bowen opening brief is due on May 15, 2023;
-- Appellees Edgewell Personal Care Brands, LLC, Edgewell
Personal Care Company, Energizer Holdings, Inc., Playtex Products,
Inc. and Sun Pharmaceuticals, LLC answering brief is due on June
14, 2023; and
-- Appellant's optional reply brief is due 21 days after service
of the answering brief. [BN]
Plaintiff-Appellant BETH BOWEN, individually and on behalf of all
others similarly situated, is represented by:
Kiley Lynn Grombacher, Esq.
BRADLEY GROMBACHER LLP
31365 Oak Crest Drive, Suite 240
Westlake Village, CA 91361
Telephone: (805) 270-7100
- and -
Sin-Ting Mary Liu, Esq.
AYLSTOCK, WITKIN, KREIS & OVERHOTLZ
875-A Island Drive, No. 144
Alameda, CA 94502
Telephone: (949) 342-4555
Defendants-Appellees ENERGIZER HOLDINGS, INC., et al. are
represented by:
John P. Katerndahl, Esq.
GORDON REES SCULLY MANSUKHANI, LLP
5 Park Plaza, Suite 1100
Irvine, CA 92614
Telephone: (949) 623-6016
- and -
Megan McCurdy, Esq.
STINSON, LLP
1201 Walnut Street, Suite 2900
Kansas City, MO 64106
Telephone: (816) 842-8600
- and -
John W. Moticka, Esq.
STINSON MORRISON HECKER LLP
7700 Forsyth Boulevard
St. Louis, MO 63105
Telephone: (314) 259-4562
EPIQ CORPORATE: Sued Over Unlawful Public Disclosure of Names
-------------------------------------------------------------
John Doe #1 and John Doe #2, on behalf of themselves and all others
similarly situated v. EPIQ CORPORATE RESTRUCTURING, LLC, Case No.
3:23-cv-00154-OAW (D. Conn., Feb. 8, 2023), is brought for damages
due to the actions of employees, agents, apparent agents and
servants of EPIQ in publicly disclosing the names and addresses of
all sexual abuse claimants who filed claims in the Bankruptcy
despite a Court Order that they be kept confidential and despite
EPIQ's clear recognition that these claimants wished to remain
anonymous and assurances that they would remain anonymous in the
Bankruptcy.
The injuries and harm to the Plaintiffs, and the entire proposed
class, were directly and proximately caused by the willful
misconduct and/or recklessness of the Defendant EPIQ, its agents,
apparent agents, servants and employees, in that they: Directly
violated a Court Order of a Federal Bankruptcy Judge by
disseminating publicly the names and addresses of sexual abuse
survivor claimants when it knew that disclosure would significantly
harm the survivors; Deliberately chose not to implement proper and
adequate policies and procedures to ensure that the names and
addresses of sexual abuse claimants were not publicly revealed
after prior incidents of disclosure of confidential information in
cases it was handling in California and Canada, when it knew that
it was tasked with protecting their identities and that significant
harm would result if those identities were revealed; Deliberately
chose not to follow policies and procedures implemented to ensure
that the names and addresses of sexual abuse claimants were not
publicly revealed when it knew that the claimants would suffer
significant harm as a result; Deliberately chose, after prior
incidents of disclosure of confidential information in cases it was
handling in California and Canada, not to address a lack of
internal safeguards to ensure that the names and addresses of
individuals meant to have their identities protected were not
disclosed, knowing that this choice would likely cause other
survivors' names to be revealed; Deliberately chose not to properly
train employees regarding the manner in which they were to ensure
that sensitive confidential information was not disclosed when it
knew that any breach of confidentiality would cause sexual abuse
survivors to suffer great harm; Deliberately chose not to review
systems in place after prior incidents of disclosure of
confidential information in cases it was handling in California and
Canada to ensure this type of disclosure did not occur again when
it knew that any disclosure would cause survivors to suffer
significant harm; Deliberately chose not to hire adequate staff and
employees who were capable of managing confidential and sensitive
information without disclosing it in an effort to cut corners and
save cost to the company, when it knew that any disclosure of such
information would cause sexual abuse survivors great harm; and
Deliberately chose not to discipline staff and employees who had
previously disclosed confidential information in other cases it was
handling such that those individuals would ensure that it would not
occur again, which it knew would increase the likelihood
significantly that another breach would occur, causing harm to
sexual abuse survivors.
As a result of the willful misconduct and/or recklessness of the
Defendant EPIQ, the Plaintiffs and all class members sustained
severe and permanent injuries, including having their names
publicly disclosed and/or available for public view. The
Plaintiffs, and all class members, now live in fear that members of
the public, including co-workers, friends, family and
acquaintances, are aware that they were sexually abused when they
were children, and this fear has created and will in the future
create great emotional and physical distress. The Plaintiffs, and
many class members, have told very few others in their lives about
the fact that they were sexually abused when they were children and
this public disclosure has caused them to feel additional shame and
trauma, says the complaint.
The Plaintiffs are natural persons and citizens of the State of
Connecticut, also residing in the State of Connecticut.
The Defendant is a New York corporation with its corporate
headquarters located in New York City.[BN]
The Plaintiff is represented by:
Kelly E. Reardon, Esq.
THE REARDON LAW FIRM, P.C.
160 Hempstead St.
P.O. Drawer 1430
New London, CT 06320
Phone: 860-442-0444
Fax: 860-444-6445
Email: kreardon@reardonlaw.com
EPOCH TIMES ASSOCIATION: Labarr Files Suit in S.D. New York
-----------------------------------------------------------
A class action lawsuit has been filed against The Epoch Times
Association Inc. The case is styled as Monique Labarr, individually
and on behalf of all others similarly situated v. The Epoch Times
Association Inc., Case No. 1:23-cv-01135-VEC (S.D.N.Y., Feb. 9,
2023).
The nature of suit is stated as Other Fraud.
The Epoch Times -- https://www.theepochtimes.com/ -- is a far-right
international multi-language newspaper and media company affiliated
with the Falun Gong new religious movement.[BN]
The Plaintiff is represented by:
Spencer Sheehan, Esq.
SHEEHAN & ASSOCIATES, P.C.
60 Cuttermill Road, Ste. 412
Great Neck, NY 11021
Phone: (516) 268-7080
Fax: (516) 234-7800
Email: spencer@spencersheehan.com
EXELON CORP: Discovery Ongoing in ComEd Lobbying Activities Suit
----------------------------------------------------------------
Exelon Corp. disclosed in its Form 10-Q Report for the quarterly
period ending December 31, 2022 filed with the Securities and
Exchange Commission on February 14, 2023, that discovery is ongoing
in ComEd's lobbying activities related suit.
A putative class action lawsuit against Exelon and certain officers
of Exelon and ComEd was filed in federal court in December 2019
alleging misrepresentations and omissions in Exelon's SEC filings
related to ComEd's lobbying activities and the related
investigations.
The complaint was amended on September 16, 2020, to dismiss two of
the original defendants and add other defendants, including ComEd.
Defendants filed a motion to dismiss in November 2020.
The court denied the motion in April 2021.
On May 26, 2021, defendants moved the court to certify its order
denying the motion to dismiss for interlocutory appeal. Briefing on
the motion was completed in June 2021.
That motion was denied on January 28, 2022.
In May 2021, the parties each filed respective initial discovery
disclosures.
On June 9, 2021, defendants filed their answer and affirmative
defenses to the complaint and the parties engaged thereafter in
discovery.
On September 9, 2021, the U.S. government moved to intervene in the
lawsuit and stay discovery until the parties entered into an
amendment to their protective order that would prohibit the parties
from requesting discovery into certain matters, including
communications with the U.S. government.
The court ordered said amendment to the protective order on
November 15, 2021 and discovery resumed.
The court further amended the protective order on October 17, 2022
and extended it until May 15, 2023. The next court status is set
for May 8, 2023.
Discovery remains ongoing.
Exelon is a utility services holding company based in Illinois.
EXPERIAN INFORMATION: Kisciras Files FCRA Suit in D. New Jersey
---------------------------------------------------------------
A class action lawsuit has been filed against Experian Information
Solutions, Inc. The case is styled as Mark Kisciras, on behalf of
himself and all others similarly situated v. Experian Information
Solutions, Inc., Case No. 3:23-cv-00776-ZNQ-RLS (D.N.J., Feb. 10,
2023).
The lawsuit is brought over alleged violation of the Fair Credit
Reporting Act.
Experian Information Solutions, Inc. -- https://www.experian.com/
-- operates as an information services company. The Company offers
credit information, analytical tools, and marketing services.[BN]
The Plaintiff is represented by:
Yitzchak Zelman, Esq.
MARCUS ZELMAN, LLC-NJ
701 Cookman Avenue, Suite 300
Asbury Park, NJ 07712
Phone: (347) 526-4093
Fax: (732) 298-6256
Email: yzelman@marcuszelman.com
FAY SERVICING: Ellery Sues Over Incorrect and Misleading Denials
----------------------------------------------------------------
Janice Ellery, individually and on behalf of all others similarly
situated v. FAY SERVICING, LLC, Case No. 0:23-cv-60260-XXXX (S.D.
Fla., Feb. 10, 2023), is brought aris under the Fair Debt
Collection Practices Act as a result of Fay's improper, incorrect,
and misleading denials of Plaintiff's and each Class member's
purchase offers related to their attempted short sales evidence a
lack of reasonable skill, care, and diligence, as well as a failure
to act in good faith and with fair dealing with respect to each of
the loans.
Fay is the servicer of Plaintiff's Loan and the Class (defined
infra) members' notes, and mortgages on residential real property,
used for personal, family, or household purposes, that secure those
notes. The Plaintiff and each Class Member fell delinquent on their
mortgages. The Plaintiff and each Class Member subsequently
requested approval from Fay for a short sale transaction to
mitigate their losses. As part of this short sale approval process,
Plaintiff and each Class member submitted a purchase offer to Fay.
The Plaintiff and each Class member submitted a purchase offer for
an arm's-length transaction to Fay.
Despite the Plaintiff's and each Class member's purchase offer
representing an arm's length transaction, Fay sent correspondence
in response to the same stating that the purchase offers were
denied because each "transaction is not arm's-length" (the
"Denials"). Fay did not provide any further explanation as to the
reasoning in the Denials as "the transaction is not arm's-length"
was checked-off as one of more than 1 dozen possible denial options
from a checklist on a form template.
Fay's denial of Plaintiff and each Class member's purchase offers
were improper as each such denial was based upon an obvious
falsehood, that the purchase offers did not represent arm's-length
transactions. Had Fay provided an accurate reason for the denial or
an explanation as to why Fay incorrectly believed the purchase
offers to not represent arm's length transactions, then Plaintiffs
and Class members could have rectified the same and seek further
approval of the short sales.
Fay, in sending correspondence stating or otherwise communicating
to the Plaintiff and each Class member that the purchase offers
related to their attempted short sales were denied due to a plainly
wrongful determination that they did not represent arm's length
transactions, engaged in conduct constituting dishonest dealings
and misrepresentations, says the complaint.
The Plaintiff is a "consumer" and a natural person who is obligated
or allegedly obligated to pay their loans.
Fay Servicing LLC is a foreign limited liability company
incorporated under the laws of the State of Delaware.[BN]
The Plaintiff is represented by:
Bruce Botsford, Esq.
BRUCE BOTSFORD, P.A.
2524 Flamingo Lane
Ft. Lauderdale, FL 33312
Phone: 954-663-7002
Email: service@botsfordlegal.com
supportleader@botsfordlegal.com
botslaw@gmail.com
FCA US: Court Narrows Claims in Maugain's First Amended Complaint
-----------------------------------------------------------------
In the case, ETIENNE MAUGAIN, et al., Plaintiffs v. FCA US LLC,
Defendant, Civil Action No. 22-116-GBW (D. Del.), Judge Gregory B.
Williams of the U.S. District Court for the District of Delaware
grants in part and denies in part FCA's Motion to Dismiss
Plaintiffs' First Amended Class Action Complaint.
Plaintiffs Etienne Maugain, Louise Shumate, Denise Hunter, Harry
Reichlen, John Kundrath, Kenneth Esteves, John Skleres, Richard
Archer, Stephen Dreikosen, and Leonel Cantu filed the consumer
class action against FCA to obtain monetary relief based on FCA's
alleged failure to disclose engine defects in 2014 or newer
Chrysler, Dodge, Jeep, or RAM-branded vehicles equipped with 3.6L
Pentastar V6 engine. The Plaintiffs' claims stretch to 906
paragraphs over 192 pages and sound in 33 counts. Thirty of the
Counts allege violations of California, Florida, Georgia, Illinois,
Massachusetts, New Hampshire, New York, Pennsylvania, or Texas law.
Count III alleges violation of the Magnuson-Moss Warranty Act, 15
U.S.C. Section 2301, ("MMWA"), and Counts I and II allege common
law fraud by omission (or fraudulent concealment) and unjust
enrichment.
FCA is a Delaware limited liability company headquartered in Auburn
Hills, Michigan that designs, manufactures, markets, distributes,
services, repairs, sells, and leases the Class Vehicles
"nationwide." It sells the Class Vehicles throughout the United
States through a nationwide dealer network, but it sells warranties
directly to consumers.
FCA sold Class Vehicles with a defective 3.6L engine and falsely
marketed the vehicles as safe to drive, durable, reliable, and
capable of providing transportation. The defective engines
"prematurely fail" and are unable to accomplish "the fundamental
elements of the function of an internal combustion engine." FCA has
exclusive knowledge of, and has been in exclusive possession of,
information pertaining" to these defects. The Plaintiffs reasonably
expected that FCA's representations that the Class Vehicles were
properly engineered and equipped to handle ordinary, public road
driving would be true and complete and would not omit material
information.
The Plaintiffs allege that they -- and others similarly situated --
"overpaid" for the Class Vehicles, "have Vehicles that have
significantly diminished resale value," "have and/or must expend
significant money to have their Vehicles (inadequately) repaired,"
and cannot use their Vehicles for the purposes that FCA advertised.
They filed this class action suit initially on Jan. 28, 2022.
After FCA filed a motion to dismiss the Plaintiffs' original
complaint, the Plaintiffs filed the operative Complaint on May 18,
2022. The Court dismissed the prior motion to dismiss as moot. The
Complaint seeks relief under common law fraud and unjust enrichment
doctrines; the MMWA; and numerous laws from nine states.
FCA argues that the Plaintiffs lack standing both to bring claims
for vehicles no named plaintiff purchased and to bring a nationwide
class action. It also argues that the Plaintiffs fail to state a
claim for fraud, fraudulent omission, or unjust enrichment. It
further argues that the Plaintiffs' MMWA and state law express and
implied warranty claims fail, as do claims under California's
Unfair Competition Law ("UCL").
While this case remained in the District of Delaware's judicial
vacancy docket, Chief Magistrate Judge Thygne granted the parties'
stipulation to extend the typical briefing page limits for this
Motion, and then enforced these page limits. As of Oct. 7, 2022,
the parties had begun and intended to continue their respective
discovery efforts, including the production of documents,
coordinating the inspections of the Plaintiffs' vehicles, and other
relevant tasks.
First, FCA argues that the Plaintiffs lack standing to assert
claims under the laws of states where they do not reside and did
not purchase their vehicles. The Plaintiffs respond that whether
they can represent a nationwide class is a Rule 23 matter unrelated
to Article III standing. They bring three claims on behalf of a
nationwide class of "all persons or entities in the United States
(including its territories and the District of Columbia) that
purchased or leased a Class Vehicle." However, according to the
Complaint, the named Plaintiffs reside in or purchased a vehicle in
only California, Florida, Texas, Illinois, New Hampshire,
Massachusetts, Alabama, Georgia, New York, Maryland, and
Pennsylvania.
Judge Williams opines that a plaintiff has standing if he can show
a judicially redressable injury. And a plaintiff's injury is not
pegged to the laws of different states: an injury is an injury even
if no law allows recovery. In the present case, the Plaintiffs'
three class-wide claims are identical, even if they invoke
state-specific common law doctrines. If FCA thinks that the
analysis will differ from state to state, it should oppose class
certification.
Second, the FCA argues that the Plaintiffs lack standing to pursue
claims for vehicles they did not purchase. The Plaintiffs respond
that they have adequately pleaded that the Class Vehicles have the
same engines in all material respects that all suffer from the same
defect.
Judge Williams holds that since the Plaintiffs allegations stem
from a defective engine, their allegations are sufficient to show,
at this stage, that they and the other putative class members
purchased the same product, i.e., the engine at issue, as a
component of their Class Vehicle. All of the engines suffered from
the same defect. Therefore, at this early stage, the Plaintiffs
have standing to represent the putative class. However, the
Plaintiffs have an ongoing obligation to maintain standing, and FCA
will have another chance to raise relevant differences within the
proposed class at the class certification stage.
Third, FCA argues that the Plaintiffs' 13 Counts based on fraud
suffer from six different failures. The Plaintiffs contest each of
FCA's arguments.
Judge Williams finds that the Plaintiffs fail to allege sufficient
facts to support a plausible allegation that FCA had knowledge of
the alleged defect prior to sales of the Class Vehicles. He also
finds that the Plaintiffs fail to allege misrepresentation claims
with particularity. Thus, he dismisses all of the Plaintiffs' fraud
claims.
Fourth, FCA argues that the Court should dismiss the Plaintiffs'
unjust enrichment claims (Count II) for five reasons, including
that the Plaintiffs have an express warranty and they have pled no
facts showing inadequate legal remedies. The Plaintiffs argue, in
response to FCA's first three grounds for dismissal, that they are
permitted to plead in the alternative that FCA mischaracterizes the
law of all five states.
Judge Williams opines that the Plaintiffs allege sufficient facts
to support a plausible unjust enrichment allegation and he declines
to dismiss the California unjust enrichment claim. Instead, he
permits the Plaintiffs to maintain a claim in quasi-contract under
California law. Therefore, the Motion as to Count II is denied.
Fifth, FCA argues that the warranties do not cover design defects,
that the Plaintiffs plead a design defect, and that the Plaintiffs
plead no facts that would show a manufacturing defect. The
Plaintiffs respond that they plead both manufacturing and design
defects and that they may plead either.
Judge Williams dismisses the Plaintiffs' express breach of warranty
claims, which are in Counts V, VIII, XI, XV, XVIII, XXI, XXIV,
XXVIII, and XXXI. He also denies the Plaintiffs' MMWA claims, which
are in Count III. Among other things, he finds that (i) the
portions of the Plaintiffs' Complaint to which they cite do not
allege sufficient facts to support a plausible allegation of a
manufacturing defect; (ii) the "factory preparation" would not
include a design defect; and (iii) the Plaintiffs' failure to
repair allegations cannot support their breach of warranty claims.
Sixth, FCA argues that the Plaintiffs' breach of implied warranty
claims fail for three reasons: (1) the Plaintiffs have failed to
show their vehicles are unmerchantable; (2) the Plaintiffs' claims
exceed the applicable statutes of limitations; and (iii) the
implied warranty claims under Florida, Illinois, and New York law
are also subject to dismissal for lack of privity (Counts IX, XVI,
XXV). The Plaintiffs respond, among other things, that they allege
privity because they directly received and are the intended users
of their vehicle warranties.
Judge Williams denies the Motion as to the Plaintiffs' implied
warranty claims (Counts VI, IX, XII, XVI, XIX, XXII, XXIX, XXXII),
saves those under New York law (Count XXV). He finds that (i) the
allegations are sufficient to support a plausible allegation that
the Class Vehicles failed to provide safe and reliable
transportation; (ii) FCA fails to dispute that FCA's warranties
establish privity under Florida law; and (iii) the Plaintiffs
allege sufficient facts to plausibly support the applicability of
the direct dealing exception.
Finally, FCA argues that the Court should dismiss the Plaintiffs'
UCL claims because they fail to identify a "legislative policy or
anti-competitive behavior" or to allege "a plausible claim based on
immoral, unethical, oppressive, unscrupulous or substantially
injurious conduct." The Plaintiffs and FCA appear to agree that a
balancing test they obtain from Pemberton v. Nationstar Mortgage
LLC, 331 F.Supp.3d 1018 (S.D. Cal. 2018), applies to their UCL
claims.
Judge Williams holds that the Plaintiffs' briefing fails to cite to
any allegations in the Complaint. Thus, he dismisses FCA's UCL
claim brought under the "unfair" prong of the UCL (Count VII).
In light of the foregoing, Judge William grants FCA's Motion as to
and dismisses all claims in Counts I, III, IV, V, VII, VIII, X, XI,
XIII, XIV, XV, XVII, XVIII, XX, XXI, XXIII, XXIV, XXV, XXVI, XXVII,
XXVIII, XXX, XXXI, and XXXIII. He denies FCA's Motion as to all
claims in Counts II, VI, IX, XII, XVI, XIX, XXII, XXIX, and XXXII.
Thus, the Plaintiffs' unjust enrichment and implied breach of
warranty claims remain.
The Court will issue an Order consistent with the Memorandum
Opinion.
A full-text copy of the Court's Feb. 7, 2023 Memorandum Opinion is
available at https://tinyurl.com/yjxzczjx from Leagle.com.
Kelly A. Green -- KGREEN@SKJLAW.COM -- SMITH, KATZENSTEIN, &
JENKINS LLP, Wilmington, Delaware; Russell D. Paul -- rpaul@bm.net
-- Abigail J. Gertner -- agertner@bm.net -- Amey J. Park --
apark@bm.net -- Natalie Lesser -- nlesser@bm.net -- BERGER MONTAGUE
PC, Philadelphia, Pennsylvania; Tarek H. Zohdy --
Tarek.Zohdy@CapstoneLawyers.com -- Cody R. Padgett --
Cody.Padgett@CapstoneLawyers.com -- Laura Goolsby --
Laura.Goolsby@CapstoneLawyers.com -- CAPSTONE LAW APC, Los Angeles,
California; Steven Calamusa -- scalamusa@fortheinjured.com -- Geoff
Stahl -- gstahl@fortheinjured.com -- Rachel Bentley --
rbentley@fortheinjured.com -- GORDON & PARTNERS, P.A., Palm Beach
Gardens, Florida; Geoffrey Graber -- ggraber@cohenmilstein.com --
Brian E. Johnson -- bejohnson@cohenmilstein.com -- COHEN MILSTEIN
SELLERS & TOLL PLLC, Washington, D.C., Counsel for the Plaintiffs.
Patrick M. Brannigan -- pbrannigan@eckertseamans.com -- Jessica L.
Reno -- jreno@eckertseamans.com -- ECKERT SEAMANS CHERIN & MELLOTT,
LLC, Wilmington, Delaware; Stephen A. D'Aunoy --
sdaunoy@thompsoncoburn.com -- Scott H. Morgan --
amorgan@thompsoncoburn.com -- THOMPSON COBURN LLP, St. Louis,
Missouri, Counsel for the Defendants.
FEDERAL NATIONAL: Trial for Stock Suits Set for July 24
-------------------------------------------------------
Federal National Mortgage Association disclosed in its Form 10-K
Report for the fiscal period ending December 31, 2022 filed with
the Securities and Exchange Commission on February 14, 2023, that
the U.S. District Court for the District of Columbia schedules a
new trial for the senior preferred stock suits on July 24, 2023.
A consolidated class action ("In re Fannie Mae/Freddie Mac Senior
Preferred Stock Purchase Agreement Class Action Litigations") and a
non-class action lawsuit, Fairholme Funds v. FHFA, filed by Fannie
Mae and Freddie Mac shareholders against the Company, FHFA as its
conservator, and Freddie Mac are pending in the U.S. District Court
for the District of Columbia. The lawsuits challenge the August
2012 amendment to each company's senior preferred stock purchase
agreement with Treasury.
Plaintiffs in these lawsuits allege that the net worth sweep
dividend provisions of the senior preferred stock that were
implemented pursuant to the August 2012 amendments nullified
certain of the shareholders' rights and caused them harm.
Plaintiffs in the class action represent a class of Fannie Mae
preferred shareholders and classes of Freddie Mac common and
preferred shareholders.
On September 23, 2022, the court issued a summary judgment ruling
that permitted the plaintiffs in these lawsuits to present to a
jury their claims for breach of the implied covenant of good faith
and fair dealing.
The cases were consolidated for trial and the trial was conducted
from October 17, 2022 to November 1, 2022.
The jury was not able to reach a verdict and the judge declared a
mistrial on November 7, 2022. A new trial is scheduled to begin on
July 24, 2023.
Federal National Mortgage Association (OTCQB: FNMA), commonly known
as Fannie Mae, is a government-sponsored enterprise (GSE) that was
chartered by U.S. Congress in 1938 to support liquidity, stability
and affordability in the secondary mortgage market, where existing
mortgage-related assets are purchased and sold. Fannie Mae helps
make the 30-year fixed-rate mortgage and affordable rental housing
possible for millions of Americans. The Company partners with
lenders to create housing opportunities for families across the
country. Visit -- http://www.FannieMae.comFannie Mae has been
under conservatorship, with the Federal Housing Finance Agency
("FHFA") acting as conservator, since Sept. 6, 2008. As
conservator, FHFA succeeded to all rights, titles, powers and
privileges of the company, and of any shareholder, officer or
director of the company with respect to the company and its assets.
The conservator has since provided for the exercise of certain
authorities by the Company's Board of Directors. The Company's
directors do not have any fiduciary duties to any person or entity
except to the conservator and, accordingly, are not obligated to
consider the interests of the company, the holders of the
Company's
equity or debt securities, or the holders of Fannie Mae MBS unless
specifically directed to do so by the conservator. A brother
organization of Fannie Mae is the Federal Home Loan Mortgage
Corporation (FHLMC), better known as Freddie Mac Freddie Mac
(OTCBB: FMCC) -- http://www.FreddieMac.com-- was established by
Congress in 1970 to provide liquidity, stability and affordability
to the nation's residential mortgage markets. Freddie Mac supports
communities across the nation by providing mortgage capital to
lenders.
GENIUNE PARTS: Seijo Wage-and-Hour Suit Removed to C.D. Cal.
------------------------------------------------------------
The case styled ELEAZER SEIJO, individually and on behalf of all
others similarly situated, Plaintiff v. GENIUNE PARTS COMPANY, a
Georgia corporation; KAMAN INDUSTRIAL TECHNOLOGIES CORPORATION, a
Connecticut corporation; KAMAN AUTOMATION, INC., a Connecticut
corporation; RUBY AUTOMATION, LLC, a Delaware Limited Liability
Company; and DOES 1 through 100, inclusive, Defendants, Case No.
30-2023-01301503-CU-OE-CXC, was removed from the Superior Court for
the State of California, County of Orange, to the United States
District Court for the Central District of California on Feb. 10,
2023.
The Clerk of Court for the Central District of California assigned
Case No. 2:23-cv-01021 to the proceeding.
In the complaint, Plaintiff alleges, individually and on behalf of
all others similarly situated, six total causes of action, five of
which are for various violations of the California Labor Code, and
one for "Unfair Competition" under the California Business &
Professions Code.
Geniune Parts Company is an American service organization engaged
in the distribution of automotive replacement parts, industrial
replacement parts, office products and electrical/electronic
materials.[BN]
The Defendants are represented by:
David Carson, Esq.
Lisa M. Szafranic, Esq.
MARTENSON, HASBROUCK & SIMON LLP
2573 Apple Valley Road NE
Atlanta, GA 30319
Telephone: (404) 909-8100
Facsimile: (404) 909-8120
E-mail: dcarson@martensonlaw.com
lmszafranic@martensonlaw.com
HANNAFORD BROS: Court Certifies Class of Managers in Prinzo Suit
----------------------------------------------------------------
In the case, JUDITH PRINZO, on behalf of herself and all other
employees similarly situated, Plaintiff v. HANNAFORD BROS. CO.,
LLC, Defendant, Civil Action No. 21-11901-WGY (D. Mass.), Judge
William G. Young of the U.S. District Court for the District of
Massachusetts grants Prinzo's motion to certify class.
Prinzo requests that the Court certifies a class comprised of "all
individuals who worked as fresh department managers for Hannaford
[Hannaford Bros. Co, LLC] in Massachusetts between Jan. 12, 2018,
and the present, or such other classes or sub-classes that the
Court deems appropriate." She seeks certification under Federal
Rule of Civil Procedure 23(a) and 23(b)(3) and argues that all the
relevant requirements are met.
After hearing arguments on Jan. 30, 2023, the Court took the matter
under advisement.
After careful consideration, Judge Young finds that all the
requirements for class certification under Rule 23 are met, and
therefore orders certification of the following class: All persons
who work or have worked between Jan. 12, 2018 and the present for
Hannaford in Massachusetts as fresh department managers --
including all (i) Bakery Sales Managers, (ii) Deli Sales Managers,
(iii) Deli/Bakery Sales Managers, (iv) Produce Sales Managers, (v)
Meat Market Managers, (vi) Meat Market/Seafood Sales Managers, and
(vii) Deli/Seafood Managers -- who did not receive overtime premium
pay for all hours worked over 40 in a workweek, did not receive a
premium for hours worked on Sunday, or did not receive a premium
for hours worked on Protected Holidays.
Hannaford, virtually conceding numerosity, typicality, adequacy,
and superiority, opposes class certification, citing issues with
commonality and predominance.
However, Judge Young finds that both of Hannaford's objections fail
because the commonality and predominance requirements are present.
First, Prinzo defines a class with sufficient common elements to
warrant certification. Second, Hannaford's corporate policies and
procedures -- including training protocols, "standard practice"
materials, labor standards, scheduling systems, standardized pay
ranges, and Kronos data -- constitute sufficient common evidence to
allow for class-wide adjudication.
A full-text copy of the Court's Feb. 3, 2023 Memorandum & Order is
available at https://tinyurl.com/yrnsp4jx from Leagle.com.
HARLEY-DAVIDSON INC: Assise Antitrust Suit Transferred to E.D. Wis.
-------------------------------------------------------------------
The case styled JACQUELINE ASSISE and ROBERT ASSISE; individually
and on behalf of all others similarly situated, Plaintiffs v.
HARLEY-DAVIDSON INC., Defendant, Case No. 1:22-cv-06068, was
transferred from the United States District Court for the Northern
District of Illinois to the United States District Court for the
Eastern District of Wisconsin on February 9, 2023.
The Clerk of Court for the Eastern District of Wisconsin assigned
Case No. 1:23-cv-00177-WCG to the proceeding.
The Plaintiffs allege violation of the Sherman Act and the
Magnuson-Moss Warranty Act. They assert the engagement of the
Defendant in anticompetitive conduct by using its warranty to try
to force Harley owners to use its own parts, in preference to the
many quality aftermarket parts available for its motorcycles in
violation of federal and state antitrust laws.
HARLEY-DAVIDSON, INC. designs, manufactures, and sells motorcycles.
The Company's products include heavyweight touring, custom, and
performance motorcycles, as well as a line of motorcycle parts,
accessories, and general merchandise. Harley-Davidson serves
customers in the United States.[BN]
The Plaintiffs are represented by:
Lillian Ruth Grinnell, Esq.
Thomas H. Burt, Esq.
WOLF HALDENSTEIN ADLER FREEMAN & HERZ LLP
270 Madison Ave
New York, NY 10016
Telephone: (212) 545-4626
E-mail: grinnell@whafh.com
burt@whafh.com
- and -
Carl V. Malmstrom, Esq.
WOLF HALDENSTEIN ADLER FREEMAN & HERZ LLC
111 W Jackson Blvd-Ste 1700
Chicago, IL 60077
Telephone: (312) 984-0000
Facsimile: (212) 686-0114
E-mail: malmstrom@whafh.com
The Defendant is represented by:
Howard B. Iwrey, Esq.
DYKEMA GOSSETT PLLC
39577 Woodward Ave-Ste 300
Bloomfield Hills, MI 48304
Telephone: (248) 203-0700
Facsimile: (248) 203-0763
E-mail: hiwrey@dykema.com
- and -
Todd A. Gale, Esq.
DYKEMA GOSSETT PLLC
10 S Wacker Dr-Ste 2300
Chicago, IL 60606
Telephone: (312) 627-2173
E-mail: tgale@dykema.com
HARLEY-DAVIDSON MOTOR: Koller Suit Transferred to E.D. Wis.
-----------------------------------------------------------
The case styled SCOTT KOLLER, on behalf of himself, the general
public, and those similarly situated, Plaintiff v. HARLEY-DAVIDSON
MOTOR COMPANY GROUP, LLC; and HARLEY-DAVIDSON MOTOR COMPANY, INC.,
Defendants, Case No. 4:22-cv-04534, was transferred from the United
States District Court for the Northern District of California to
the United States District Court for the Eastern District of
Wisconsin on Feb. 10, 2023.
The Clerk of Court for the Eastern District of Wisconsin assigned
Case No. 1:23-cv-00176 to the proceeding.
This is a class action against Harley-Davidson relating to its the
sale of motorcycles with warranties that fail to comply with
federal and state law. First, the motorcycle warranty terms
condition the continued validity of the warranty on the use of only
an authorized repair service and/or authorized replacement parts,
also known as "tying arrangement" or "unlawful repair restriction."
The Defendant's conduct violated state and federal law, including
the Magnuson-Moss Warranty Act and its implementing regulations,
says the suit.
Harley-Davidson Motor Company Group produces and sells motorcycles.
The Company offers sports bikes, heavyweight motorcycles, and other
accessories.[BN]
The Defendants are represented by:
Tamara Alicia Bush, Esq.
John Mark Thomas, Esq.
DYKEMA
444 S. Flower Street, Suite 2200
Los Angeles, CA 90071
Telephone: (213) 457-1815
E-mail: tbush@dykema.com
HAVANA HARRY'S: Arevalo FLSA Suit Removed to S.D. Fla.
------------------------------------------------------
The case styled NORIS AREVALO, JUAN AREVALO VILLALOBOS, ALVARO
VILLALOBOS, TOMAS AVENDANO, SANDRA BAIRES, and all others similarly
situated under 29 U.S.C. 216(b), Plaintiffs v. HAVANA HARRY'S II
INC., HAVANA HARRYS CORAL GABLES LLC., NIEVES FEAL, ARTHUR CULLEN,
and CARLOS CENTURION, Defendants, Case No. 2022-023921-CA-01, was
removed from the Florida Circuit Court of the Eleventh Judicial
Circuit in and for Miami-Dade County to the United States District
Court for the Southern District of Florida on Feb. 10, 2023.
The Clerk of Court for the Southern District of Florida assigned
Case No. 1:23-cv-20555 to the proceeding.
The Plaintiff alleges Defendants' violation of the Fair Labor
Standards Act for a failure to pay proper overtime.
Havana Harry'S II Inc. is a Cuban restaurant based in Miami,
Florida.[BN]
The Defendants are represented by:
Reynaldo Velazquez, Esq.
Roman Sarangoulis, Esq.
JACKSON LEWIS P.C.
One Biscayne Tower, Suite 3500
Two South Biscayne Boulevard
Miami, FL 33131
Telephone: (305) 577-7600
E-mail: rey.velazquez@jacksonlewis.com
roman.sarangoulis@jacksonlewis.com
HOME DEPOT: Files 7th Circuit Appeal in Corn Warranty Suit
----------------------------------------------------------
HOME DEPOT, INC. has filed an appeal in the lawsuit entitled
Zachary Corn, individually and on behalf of all others similarly
situated, Plaintiff, v. Home Depot, Inc., Defendant, Case No.
1:22-cv-04627, in the U.S. District Court for the Northern District
of Illinois.
The Plaintiff initially filed this complaint in the Circuit Court
of Cook County, Illinois on July 15, 2022, under Case No.
2022-CH-06896.
The action arises from Home Depot's sale of warranted products in
Illinois exceeding $15. The Plaintiff alleges that Home Depot
violated the Magnuson-Moss Warranty Act "Pre-Sale Availability
Rule" by allegedly neglecting to provide Illinois consumers with
access to written warranties prior to sale. The Plaintiff seeks
injunctive and declaratory relief on behalf of all Illinois
consumers who bought one or more products that cost over $15 and
were subject to a written warranty.
On Aug. 30, 2022, the case was removed to the U.S. District Court
for the Northern District of Illinois.
The appellate case is captioned Home Depot, Inc. v. Zachary Corn,
Case No. 23-8003, in the U.S. District Court of Appeals for the
Seventh Circuit, filed on February 6, 2023. [BN]
Plaintiff-Respondent ZACHARY CORN, individually and on behalf of
all others similarly situated, is represented by:
James Dominick Larry, Esq.
NICK LARRY LAW LLC
1720 W. Division Street
Chicago, IL 60622
Telephone: (773) 694-4669
Defendant-Petitioner HOME DEPOT, INC. is represented by:
Sidney Stewart Haskins, II, Esq.
KING & SPALDING LLP
1180 Peachtree Street
Atlanta, GA 30309
Telephone: (404) 572-5104
- and -
Barrett L. Anderson, Esq.
Isham Cason Hewgley, IV, Esq.
KING & SPALDING LLP
1100 Louisiana
Houston, TX 77002
Telephone: (713) 751-3200
- and -
Maria Henain, Esq.
J. Andrew Pratt, Esq.
KING & SPALDING LLP
1180 Peachtree Street
Atlanta, GA 30309
Telephone: (404) 572-4600
- and -
Patrick M. Otlewski, Esq.
KING & SPALDING LLP
110 N. Wacker Drive
Chicago, IL 60606
Telephone: (312) 995-6333
JABIL INC: Bid to Dismiss Huynh Labor Class Suit Granted in Part
----------------------------------------------------------------
In the case, STRONG HUYNH, Plaintiff v. JABIL INC., Defendant, Case
No. 22-cv-07460-WHO (N.D. Cal.), Judge William H. Orrick of the
U.S. District Court for the Northern District of California:
a. grants in part and denies in part Jabil's motion to dismiss
Huynh's First Amended Class Action Complaint; and
b. denies Jabil's motion to strike Huynh's class allegations.
Jabil is a business entity incorporated in Delaware, with its
principal place of business in St. Petersburg, Florida. It is
alleged to be a manufacturing service provider for clients
throughout California. Huynh states that he and other putative
class members all were or are hourly-paid non-exempt employees of
Jabil. He was employed in California by Jabil from approximately
2019 through October 2021.
Huynh asserts that Jabil committed the following unlawful
practices: (1) failing to pay employees all wages for all hours
worked; (2) causing missed meal periods; (3) causing missed rest
breaks; (4) failing to provide all wages due upon discharge; (5)
failing to provide itemized wage statements and maintain accurate
payroll records; and (6) failing to indemnify employees for
necessary business expenses, including cell phone expenses.
As a result of these failures, Huynh alleges that Jabil also failed
to provide accurate, itemized wage statements and failed to provide
all wages due upon discharge. He also contends that Jabil required
him and other employees to use their personal cell phones to
perform required job duties, including requiring Huynh to provide
updates "regarding machines and scheduling" via his cellphone, but
Jabil failed to reimburse Huynh and other employees for those
expenses. Finally, Huynh states that his claims are typical of the
claims of the absent class members, resulting from the same
policies and practices.
Huynh filed his complaint in the Superior Court for Alameda County
on behalf of himself and a putative class of "all individuals who
worked for Jabil in a California location as a non-exempt employee
during the Class Period," where the "Class Period" was defined to
be "the four (4) years prior to the filing of Plaintiff's initial
complaint in this action through judgment."
The Complaint asserts seven Causes of Action: (1) Failure to Pay
All Wages (under California Labor Code Sections 204, 206, 510,
1182.12, 1194, 1194.2, 1197, 1197.1, and 1198); (2) Failure to
Provide Meal Periods or Compensation in Lieu Thereof (under
California Labor Code Sections 226.7 and 512); (3) Failure to
Provide Rest Periods or Compensation in Lieu Thereof (under
California Labor Code Section 226.7); (4) Failure to Pay Wages of
Terminated or Resigned Employees (under California Labor Code
Sections 201, 202, and 203); (5) Failure to Issue Itemized Wage
Statements and Maintain Records (under California Labor Code
Sections 226, 226.3, 1174, and 1174.5); (6) Indemnification for
Expenditures or Losses in Discharge of Duties (under California
Labor Code Section 2802); and (7) Unfair/Unlawful Business
Practices (under the California Business and Professions Code
Section 17200 et seq.).
Jabil removed the case to the Northern District of California,
under the Class Action Fairness Act ("CAFA"), 28 U.S.C. Sections
1332(d). After removal, Huynh filed a First Amended Class Action
Complaint, reasserting the same seven causes of action but adding
additional facts regarding his employment. Jabil now moves to
dismiss all claims as insufficiently pleaded and strike the class
action allegations.
Jabil moves to dismiss each of the wage and hour claims alleged
(First through Sixth Causes of Action) and the derivative UCL claim
for unlawful business practices (Seventh Cause of Action) for
failure to allege sufficient facts to support the plausibility of
those violations. It also moves to dismiss or strike the class-wide
allegations, arguing that they are based on conclusory assertions
without sufficient facts to support an inference of class-wide
conduct.
Huynh responds that his claims are adequately pleaded with
sufficient facts to show the claims are plausible on their face. He
also contends that he has alleged sufficient facts regarding
Jabil's common policies and practices to support his class
allegations.
Initially, Judge Orrick holds that Jabil ignores the facts that
Huynh has alleged; both those regarding policies and practices of
Jabil and those about his specific working conditions. Looking to
the factual allegations in the FAC as a whole, Huynh has adequately
alleged the majority of his claims.
Judge Orrick dismisses Huynh's section 204 claim with leave to
amend. If Huynh intends to allege a claim based on the violation of
the twice-monthly pay frequency required by section 204(a), he must
reallege that claim separate from his unpaid wages cause of action
with plausible facts in support.
The FAC contains no facts supporting a claim under section 206 (a)
or (b) and Huynh fails to address them in his Opposition. His
reliance on section 206 is dismissed as a basis for unpaid wages
under the First Cause of Action. He is given leave to amend if he
can state facts regarding disputed wages under section 206.
Moreover, absent authority demonstrating that Huynh cannot move
under these identified Labor Code provisions for unpaid wages,
Jabil's motion to dismiss or strike mention of these Labor Code
provisions is denied.
Hence, Huynh plausibly states his claims for unpaid wages. Except
for the reliance on Sections 204 and 206, the motion to dismiss the
first cause of action is denied.
Next, Judge Orrick denies the motion to dismiss the Second and
Third Causes of Action. Huynh has alleged multiple instances where
Jabil directly "impeded" his breaks and how those breaks were
impeded by interruption or failure to schedule. That suffices at
this stage.
Judge Orrick also denies the motion to dismiss the Fourth Cause of
Action. Judge Orrick holds that Huynh has alleged his substantive
claims adequately.
Judge Orrick grants the motion to dismiss the claim in the Fifth
Cause of Action based on failure to maintain records. However, the
Fifth Cause of Action's claim for failing to provide accurate
itemized wage statements remains. Jabil challenges only the records
claim under section 1174, arguing that there is no private right of
action under that provision. Huynh does not address the section
1174 claim in his Opposition. And the law supports it.
The motion to dismiss the Sixth Cause of Action for indemnification
is denied. Judge Orrick finds that Huynh alleges that he was
required to provide his manager updates regarding the status of his
"machinery and scheduling" work tasks on his personal cell phone.
That is sufficient.
Jabil's motion to dismiss Huynh's claim for unfair business
practices under California Business & Professions Code section
17200 et seq. ("UCL") is granted. Because Huynh has adequately
alleged his prior causes of action, his derivative UCL claim
likewise survives. But he cannot seek injunctive relief because he
is no longer employed by Jabil.
However, the motion to dismiss the Seventh Cause of Action under
the UCL is granted with leave to amend to allege inadequate
remedies at law. Huynh has not addressed the sufficiency of
remedies in support of his UCL claim in his Opposition. All he
needs to plead to support a claim to equitable relief in the
alternative is an unconditional statement that his legal remedies
are inadequate.
Finally, Jabil moves to strike Huynh's class allegations under Rule
12(f) and allow this action to proceed only on an individualized
basis. Judge Orrick denies it. He says, among other things, that
Huynh's facts about his personal experience with Jabil's practice
of understaffing, not scheduling sufficient breaks, and
miscalculating base pay, are the exact type of allegations that
support an inference that Jabil's practices occurred more broadly.
Based on the foregoing, Judge Orrick denies the motion to dismiss,
except that Huynh's reliance on Labor Code sections 204 and 206 in
support of the First Cause of Action is dismissed with leave to
amend, his reliance on Labor Code section 1174 in support of the
Fifth Cause of Action is dismissed, and the Seventh Cause of Action
under the UCL is dismissed with leave to amend regarding
insufficiency of legal remedies. The motion to strike the class
allegations is denied.
A further amended complaint, if any, will be filed within 21 days
of the date of the Order.
A full-text copy of the Court's Feb. 7, 2023 Order is available at
https://tinyurl.com/2p94657p from Leagle.com.
JONAS BRONCK HOUSING: Fails to Pay Overtime Wages, Perez Claims
---------------------------------------------------------------
WILBURT PEREZ, on behalf of himself and others similarly situated
in the proposed FLSA Collective Action, Plaintiff v. MICHAEL J.
MARTINO, and JONAS BRONCK HOUSING CO. INC., Defendants, Case No.
1:23-cv-00193 (S.D.N.Y., January 9, 2023) brings this complaint as
a collective action alleging the Defendants of willful and
intentional violations of the Fair Labor Standards Act and the New
York State Labor Law.
The Plaintiff has worked at the Defendants' housing property as
maintenance personnel from approximately on or around January 2000
through and including December 2009, as a foreman from
approximately on or around January 2010 through and including
December 2019, and as a superintendent from on or around January
2000 through and including June 1, 2022.
The Plaintiff claims that he and other similarly situated employees
were required by the Defendants to work more than 40 hours per
week. However, the Defendants denied them of their lawfully earned
overtime premium at the rate of one and one-half times their
regular rates of pay for all hours worked in excess of 40 per
workweek.
The Plaintiff also asserts these claims:
-- The Defendants did not grant them with meal breaks or rest
periods of any length;
-- The Defendants failed to post any notice regarding their
wages as required under the FLSA or NYLL;
-- The Defendants failed to provide them with a wage
statement; and
-- The Defendants did not provide them with any notice
regarding their rate of pay, regular pay day, and such other
information as required by NYLL.
The Plaintiff seeks to recover all unpaid overtime wages,
liquidated damages in an amount equal to the total amount of wages
found to be due, pre- and post-judgment interest, reasonable
attorneys' fees and the costs and disbursements of this action, and
other relief as the Court deems just and proper.
Jonas Bronck Housing Co. Inc. operates housing property owned by
Michael J. Martino. [BN]
The Plaintiff is represented by:
Joshua Levin-Epstein, Esq.
LEVIN-EPSTEIN & ASSOCIATES, P.C.
60 East 42nd St., Suite 4700
New York, NY 10165
Tel: (212) 792-0046
E-mail: Joshua@levinepstein.com
KRAFT HEINZ: Amended Hoffman Class Suit Dismissed With Prejudice
----------------------------------------------------------------
In the case, PETER HOFFMAN, individually and on behalf of all
others similarly situated, Plaintiff v. KRAFT HEINZ FOODS COMPANY,
Defendant, Case No. 22-CV-397 (KMK) (S.D.N.Y.), Judge Kenneth M.
Karas of the U.S. District Court for the Southern District of New
York grants the Defendant's Motion to Dismiss the First Amended
Complaint.
The Plaintiff brings the putative class action against Kraft,
alleging that the labeling on the Defendant's Mango Peach MiO, a
flavored liquid beverage concentrate is deceptive and misleading.
He brings claims for damages against the Defendant for (1)
violation of Sections 349 and 350 of the New York General Business
Law ("GBL"), N.Y. G.B.L. Sections 349, 350; (2) violations of
consumer protection laws of Virginia and Oklahoma; (3) common law
breach of express warranty; and (4) common law fraud.
The Defendant is a multinational food company with its principal
place of business in Pittsburgh, Pennsylvania. Included in its
product lines is MiO, a "flavored concentrated liquid" that serves
as a liquid water enhancer developed as a convenient alternative to
messy beverage powders in adding flavor to water. As relevant to
the instant Action, the Defendant specifically manufactures a
"mango and peach" flavored variety of MiO which it represents on
the label as containing "natural flavor with other natural
flavor."
The Plaintiff alleges that the Product's advertisements are false,
deceptive, and misleading because of the presence of artificial
flavors, namely DL-Malic Acid. The Product's ingredients list
"Malic Acid" as the second most predominant ingredient by weight.
The Plaintiff alleges that the Defendant's representation that the
Product's flavor is from natural flavors is misleading, because by
identifying the Product as getting its mango and peach taste from
natural flavoring, consumers expect only natural flavoring
ingredients to contribute to the taste. He alleges that because the
ingredient list does not disclose that this malic acid is an
artificial flavoring ingredient which provides the Product's mango
and peach taste, the Plaintiff was misled by the Product's
contents.
In purchasing the Product, the Plaintiff alleges he believed the
Product's peach and mango taste was only from natural flavoring
ingredients and not from artificial flavoring ingredients because
that is what the representations said and implied. He accordingly
relied on the words, coloring, descriptions, layout, and packaging
on the Product, on the labeling, and on statements made in
Defendant's digital, print, and social media marketing. Without
this, the Plaintiff alleges that he "would not have purchased the
Product if she knew the representations and omissions were false
and misleading or would have paid less for it.
The Plaintiff filed his initial Complaint on Jan. 15, 2022. On May
31, 2022, the Defendant filed a pre-motion letter in anticipation
of filing a motion to dismiss the original Complaint, but on June
21, 2022, the Plaintiff filed the FAC. On July 5, 2022, the
Defendant filed another pre-motion letter in anticipation of filing
a motion to dismiss the FAC.
Following the Plaintiff's response to the Defendant's pre-motion
letter, the Court held a pre-motion conference on July 19, 2022.
Pursuant to the briefing schedule adopted at the conference, the
Defendant filed the instant Motion on Aug. 9, 2022. The Plaintiff
filed his Opposition on Sept. 8, 2022, and the Defendant filed its
Reply on Sept. 22, 2022. The Defendant also filed two notices of
supplemental authority on Oct. 17, 2022 and Jan. 3, 2023.
The Defendant argues that (1) the Plaintiff fails to state a
plausible GBL claim because he has not plausibly pled that malic
acid in the Product acts as a "flavor" or is "artificial"; (2) the
Plaintiff has not plausibly alleged that the omission of an
"artificially flavored" disclosure is likely to mislead consumers;
(3) the Plaintiff has failed to state a claim for breach of express
warranty, because he did not establish that the Product was likely
to deceive a reasonable consumer, and because he failed to provide
Defendant with pre-suit notice; and (4) the Plaintiff has failed to
plead fraud with particularity, as required under Rule 9(b).
Judge Karas opines that (i) the Product's labeling would not
mislead a reasonable consumer; (ii) the Plaintiff provides no
argument distinguishing his claims in Oklahoma and Virginia from
New York and the Court finds no reason to do so as well; (iii) the
allegations are plainly insufficient to plead pre-suit notice and
avoid dismissal; and (iv) it is well-settled that a company's
general profit motive is insufficient to plead scienter.
For the foregoing reasons, Judge Karas grants the Defendant's
Motion.
The Plaintiff has requested that should the Court grant the
Defendant's motion, it grants the Plaintiff leave to file a Second
Amended Complaint.
Judge Karas finds that the Plaintiff has already amended his
complaint once after being prompted by a pre-motion letter from the
Defendant stating all of the grounds on which it would move to
dismiss. Moreover, the Plaintiff has failed to otherwise suggest
that he is in possession of facts that would cure the deficiencies
that the Defendants highlighted in the instant motion and Judge
Karas highlighted in his Opinion. As such, he dismisses the
Plaintiff's Amended Complaint with prejudice.
The Clerk of the Court is directed to terminate the pending motion,
enter judgment for the Defendant, and to close the case.
A full-text copy of the Court's Feb. 7, 2023 Opinion & Order is
available at https://tinyurl.com/2p84k4fd from Leagle.com.
Angele Aaron, Esq., Katherine Lalor, Esq., Spencer Sheehan, Esq. --
spencer@spencersheehan.com -- Sheehan & Associates, P.C., Great
Neck, NY, Counsel for the Plaintiff.
Jonathan Shub, Esq. -- jshub@shublawyers.com -- Shub Law Firm LLC,
Haddonfield, NJ, Counsel for the Plaintiff.
Dean N. Panos, Esq. -- dpanos@jenner.com -- Alexander Smith, Esq.
-- asmith@jenner.com -- Jenner & Block LLP, Chicago, IL and Los
Angeles, CA, Counsel for the Defendant.
MDL 1720: Palladino Antitrust Suit Transferred to E.D.N.Y.
----------------------------------------------------------
The case styled JOHN PALLADINO, GARIB KARAPETYAN, STEVE PALLADINO,
AND JOHN NYPL, Individual Plaintiffs and on behalf of all those
similarly situated Plaintiffs v. JPMORGAN CHASE & CO.; JPMORGAN
CHASE BANK, N.A.; BANK OF AMERICA CORPORATION; BANK OF AMERICA,
NATIONAL ASSOCIATION; BANK OF AMERICA, N.A.; WELLS FARGO & COMPANY;
WELLS FARGO BANK, N.A.; CITIGROUP INC.; CITIBANK, N.A.; CITIBANK,
N.A. (NATIONAL ASSOCIATION); U.S. BANCORP; US BANCORP; U.S. BANK
NATIONAL ASSOCIATION; PNC FINANCIAL SERVICES GROUP, INC.; PNC; PNC
BANK, NATIONAL ASSOCIATION; CAPITAL ONE FINANCIAL CORPORATION;
CAPITAL ONE, F.S.B.; CAPITAL ONE BANK (USA), NATIONAL ASSOCIATION
("COBNA"); CAPITAL ONE, NATIONAL ASSOCIATION ("CONA"); BANK OF THE
WEST; VISA INC.; VISA U.S.A. INC. ("VISA U.S.A."); VISA
INTERNATIONAL SERVICE ASSOCIATION ("VISA INTERNATIONAL");
MASTERCARD INCORPORATED; MASTERCARD Defendants, Case No.
4:23-cv-00423, was transferred from the United States District
Court for the Northern District of California to the United States
District Court for the Eastern District of New York on Feb. 10,
2023.
The Clerk of Court for the Eastern District of New York assigned
Case No. 1:23-cv-01215-MKB-VMS to the proceeding. The case has been
consolidated in MDL No. 1720, In re Payment Card Interchange Fee
and Merchant Discount Antitrust Litigation and is assigned to the
Hon. Judge Margo K Brodie.
The suit was initially filed in the Superior Court of the State of
California for the County of San Francisco before it was removed to
the Northern District of California on January 30, 2023.
The Plaintiffs and the members of the putative class that the
Plaintiffs purport to represent are Visa and Mastercard payment
cardholders "each of whom has made retail purchases of goods and
services in California using a Visa or Mastercard credit or debit
card." The Plaintiffs aver, among other things, that Visa and
Mastercard -- together with all banks that issue Visa or Mastercard
payment cards, all banks that process payments on those cards, and
all merchants accepting such cards -- engaged in a "price-fixing
conspiracy" in which they "fixed and stabilized" interchange fees
and that cardholders paid those fees as direct and indirect
purchasers. The Plaintiffs assert violations of the California
Cartwright Act, Cal. Business and Professions Code Sections 16700
et seq., as well as the California Unfair Competition Law.
The Defendants are financial services company in the United
States.[BN]
The Defendants are represented by:
Robert J. Vizas, Esq.
Sharon D. Mayo, Esq.
ARNOLD & PORTER KAYE SCHOLER LLP
Three Embarcadero Center, 10th Floor
San Francisco, CA 94111-4024
Telephone: (415) 471-3100
Facsimile: (415) 471-3400
E-mail: robert.vizas@arnoldporter.com
sharon.mayo@arnoldporter.com
- and -
Matthew A. Eisenstein, Esq.
ARNOLD & PORTER KAYE SCHOLER LLP
601 Massachusetts Ave, Nw
Washington, DC 20001
Telephone: (202) 942-6606
Facsimile: (202) 942-5999
E-mail: matthew.eisenstein@apks.com
MDL 2924: Multi-Plaintiff Complaints in Zantac Liability Suit Nixed
-------------------------------------------------------------------
In the case, IN RE: ZANTAC (RANITIDINE) PRODUCTS LIABILITY
LITIGATION, MDL No. 2924, No. 20-MD-2924 (S.D. Fla.), Judge Robin
L. Rosenberg of the U.S. District Court for the Southern District
of Florida denies the Plaintiffs' Expedited Motions to Permit
Multi-Plaintiff Complaints for Registry Claimants.
The Motion has been fully briefed, and Judge Rosenberg heard oral
argument on the Motion on Jan. 12, 2023. At oral argument, he
inquired about the application of the Federal Rules of Civil
Procedure to the Plaintiffs' Motion, a subject that was not
addressed in the parties' briefing; he invited additional motion
practice that addressed his questions about the application of the
Federal Rules to the Motion.
Soon thereafter, the Plaintiffs filed a Renewed Motion at docket
entry 6220. The Renewed Motion has also been fully briefed. In the
interest of giving the Plaintiffs the maximum amount of notice
possible, Judge Rosenberg previously informed the Plaintiffs via
paperless order of his denial of both Motions and of his intent to
enter a formal, written order explaining its decision. This is that
Order.
The Plaintiffs filed their Motions on behalf of approximately
58,000 Claimants in an MDL Registry. That Registry is a database of
claims. Each Claimant is an individual who has registered a claim
in the Registry, and, while the claim was registered, by agreement
of the parties the claim was tolled for statute of limitations
purposes. Each Claimant has certified under penalty of estoppel
that the Claimants' claim will be filed, if it is ever filed, in
federal court, not state court.
The question before the Court is how the Claimants must file their
claims. The operative answer is found in Pretrial Order 31, page 4,
which states that any "Plaintiff who files directly in MDL No. 2924
must file his or her complaint as a Short Form Complaint in a new
case, which will be the Plaintiff's member case." The Short Form
Complaint is a template complaint attached to the Plaintiffs'
operative master pleadings, and it is this template that each new
Plaintiff must complete. Additionally, no multi-plaintiff
complaints are permitted under Pretrial Order 31. Instead, each
Plaintiff must have an individual complaint on file.
Judge Rosenberg states that the effect of Pretrial Order 31 is to
stage the Plaintiffs' claims for eventual remand to their home
district. Each Short Form Complaint contains the district to which
the Plaintiff must eventually be remanded. Each Short Form
Complaint is an operative pleading, and it contains all of the
Plaintiffs' claims for which, eventually, the Plaintiff must prove
individual causation.
The Plaintiffs and the Defendants jointly drafted and agreed to the
terms of Pretrial Order 31, and the Court entered the Pretrial
Order at the parties' request in August of 2020. The Claimants also
agreed to the terms of Pretrial Order 31 when they recorded their
claims in the Registry. Since August 2020, in full compliance with
the terms of Pretrial Order 31, approximately 2,500 Plaintiffs have
filed individual cases in the MDL with individual Short Form
Complaints.
On Dec. 6, 2022, the Court entered its Daubert ruling on general
causation in favor of the Defendants. As a result of that ruling,
the Registry was set to expire one month later, on Jan. 5, 2023,
and it became necessary for the Claimants in the Registry to file a
case in federal court, if they wanted to appeal the Court's ruling
and avoid the running of the statute of limitations on their
claims.
For the first time, on Dec. 16, 2022, the Plaintiffs objected to
the terms of Pretrial Order 31, calling its terms "perverse." They
requested that the Court modifies the terms of Pretrial Order 31 to
permit the Registry Claimants to file one multi-plaintiff complaint
per law firm. Because approximately 330 law firms represent the
Claimants, the Plaintiffs' request was for 330 cases to be filed in
lieu of over 58,000 individual cases.
Judge Rosenberg denies the Plaintiffs' request on four grounds: (A)
the Plaintiffs' request does not satisfy the requirements for
joinder of claims under Rule 20(a); (B) even if the Plaintiffs'
request satisfies Rule 20(a), the Court would still sever the
multi-plaintiff complaints; (C) the Plaintiffs have provided no
persuasive or analogous case law in support of their request in
their Renewed Motion; and (D) the Plaintiffs and the Claimants
previously agreed to file individual complaints.
For the foregoing reasons, Judge Rosenberg denies the Plaintiff's
Motions to Permit Multi-Plaintiff Complaints.
A full-text copy of the Court's Feb. 7, 2023 Order is available at
https://tinyurl.com/3tbhc5hb from Leagle.com.
MDL 3055: Gutierrez Privacy Suit Transferred to D.N.J.
------------------------------------------------------
The case styled TAMMY GUTIERREZ, an individual, and on behalf of
classes of similarly situated individuals, Plaintiff v. SAMSUNG
ELECTRONICS AMERICA, INC., a New York corporation, Defendant, Case
No. 3:22-cv-05719, was transferred from the United States District
Court for the Northern District of California to the United States
District Court for the District of New Jersey on Feb. 10, 2023.
The Clerk of Court for the District of New Jersey assigned Case No.
1:23-cv-00789 to the proceeding. The case has been consolidated in
MDL No. 3055, IN RE: SAMSUNG CUSTOMER DATA SECURITY BREACH
LITIGATION.
This is a class action for damages against Defendant Samsung
Electronics America, Inc. due to its failure to exercise reasonable
care in securing Plaintiff's sensitive personal information
including without limitation, unencrypted and unredacted name,
contact and demographic information, and date of birth as a result
of the data breach.
Samsung Electronics America, Inc. manufactures electronic
products.[BN]
The Defendant is represented by:
Jason Jonathan Kim, Esq.
HUNTON ANDREWS KURTH LLP
550 S. Hope Street, Suite 2000
Los Angeles, CA 90071
Telephone: (213) 532-2000
Facsimile: (213) 532-2020
MDL 3055: Seirafi Privacy Suit Transferred to D.N.J.
----------------------------------------------------
The case styled NAEEM SEIRAFI and SHELBY HOLTZCLAW, individually
and on behalf of all others similarly situated, Plaintiffs v.
SAMSUNG ELECTRONICS AMERICA, INC., a corporation, Defendant, Case
No. 3:22-cv-05176, was transferred from the United States District
Court for the Northern District of California to the United States
District Court for the District of New Jersey on Feb. 10, 2023.
The Clerk of Court for the District of New Jersey assigned Case No.
1:23-cv-00787 to the proceeding. The case has been consolidated in
MDL No. 3055, IN RE: SAMSUNG CUSTOMER DATA SECURITY BREACH
LITIGATION.
This is a class action for damages against Defendant Samsung
Electronics America, Inc. due to its failure to exercise reasonable
care in securing Plaintiff's sensitive personal information
including without limitation, unencrypted and unredacted name,
contact and demographic information, and date of birth as a result
of the data breach.
Samsung Electronics America, Inc. manufactures electronic
products.[BN]
The Defendant is represented by:
Ann Marie Mortimer, Esq.
HUNTON ANDREWS KURTH LLP
550 South Hope Street Suite 2000
Los Angeles, CA 90071-2627
Telephone: (213) 532-2000
Facsimile: (213) 532-2020
E-mail: amortimer@huntonAK.com
MICHAELS STORES: Crawford Labor Suit Removed to E.D. Cal.
---------------------------------------------------------
The case styled CURTIS CRAWFORD, an individual, on behalf of
himself and on behalf of all persons similarly situated, Plaintiff
v. MICHAELS STORES PROCUREMENT COMPANY, INC.; and DOES 1 through
50, inclusive, Defendants, Case No. STK-CV-UOE-2022-0010787, was
removed from the Superior Court of California, County of San
Joaquin, to the United States District Court for the Eastern
District of California on Feb. 10, 2023.
The Clerk of Court for the Eastern District of California assigned
Case No. 2:23-at-00123 to the proceeding.
Plaintiff Crawford is a former non-exempt employee at a Michaels
distribution center in California who alleges that Michaels failed
to pay him all of his minimum and overtime wages, failed to provide
proper meal and rest breaks, failed to timely pay all wages owed
upon termination, failed to timely pay all wages owed during
employment, failed to provide accurate wage statements, failed to
pay sick wages, failed to pay reporting time pay, failed to
reimburse necessary business expenses, violated California Labor
Code section 221, and engaged in unfair competition.
Michaels Stores Procurement Company, Inc. retails art and craft
products.[BN]
The Defendant is represented by:
Gregory W. Knopp, Esq.
Michelle L. Lappen, Esq.
PROSKAUER ROSE LLP
2029 Century Park East, Suite 2400
Los Angeles, CA 90067
Telephone: (310) 557-2900
Facsimile: (310) 557-2193
E-mail: gknopp@proskauer.com
mlappen@proskauer.com
MICROSOFT CORP: Beldock ERISA Suit Dismissed With Leave to Amend
----------------------------------------------------------------
In the case, JUSTIN BELDOCK, et al., Plaintiffs v. MICROSOFT
CORPORATION, et al., Defendants, Case No. C22-1082JLR (W.D. Wash.),
Judge James L. Robart of the U.S. District Court for the Western
District of Washington, Seattle, grants the Defendants' motion to
dismiss and dismisses the Plaintiffs' complaint with leave to
amend.
Before the Court is the motion to dismiss filed by Defendants
Microsoft, the Board of Trustees of Microsoft, and the 401(k)
Administrative Committee of the Microsoft Corporation Savings Plus
401(k) Plan. Plaintiffs Justin Beldock, Gordon Broward, and Shaadi
Nezami, who bring the action on behalf of themselves, the Plan, and
a proposed class, oppose the motion. The Court heard oral argument
on the motion on Jan. 30, 2023.
The Plan is a defined contribution plan within the meaning of the
Employee Retirement Income Security Act of 1974 ("ERISA"). It is a
participant-driven 401(k) plan, meaning that participants direct
the investment of their contributions into the investment options
offered by the Plan. Since at least December 31, 2009, the Plan has
offered participants a suite of 10 BlackRock LifePath Index target
date funds (the "BlackRock TDFs").
The Defendants designated the BlackRock TDFs as the Plan's
Qualified Default Investment Alternative, into which a
participant's contributions are invested if the participant does
not otherwise indicate where their assets should be allocated. In
December 2020, about 24% of the Plan's assets were invested in the
BlackRock TDFs. As of late 2021, the BlackRock TDFs were the third
largest target date suite by market share.
The Plaintiffs assert that the BlackRock TDFs are significantly
worse performing than many of the mutual fund alternatives offered
by TDF providers and, throughout the Class Period, could not have
supported an expectation by prudent fiduciaries that their
retention in the Plan was justifiable. They allege that the
Defendants breached their fiduciary duties by employing a
"fundamentally irrational decision-making process" in adding and
retaining the BlackRock TDFs. They do not, however, allege any
specific facts regarding that decision-making process.
Instead, the Plaintiffs compare the BlackRock TDFs' returns over
time to the returns realized by four of the other top-six largest
TDF suites (the "Comparator TDFs") and ask the court to infer,
based on the BlackRock TDFs' alleged underperformance, that the
Defendants acted imprudently in retaining the BlackRock TDFs in the
Plan. They provide nine pages of tables showing how the three- and
five-year annualized returns for the BlackRock TDFs ranked against
the Comparator TDFs at the end of each quarter since the beginning
of the class period in August 2016. As the Defendants point out,
there are some key differences between the BlackRock TDFs and the
Comparator TDFs.
The Plaintiffs, who are former employees of Microsoft and former
participants in the Plan, filed the proposed class action on Aug.
1, 2022. All three Plaintiffs were invested in different vintages
of the BlackRock TDF suite: Mr. Beldock maintained an investment in
the BlackRock Retirement TDF; Mr. Gordon in the BlackRock 2020 TDF;
and Mr. Nezami in the BlackRock 2030 TDF. They allege that the
Defendants breached their fiduciary duties to the Plan and Plan
participants under ERISA by selecting and retaining the BlackRock
TDFs as investment options in the Plan. They also allege claims
under ERISA for failure to monitor fiduciaries and co-fiduciary
breaches, as well as a claim in the alternative for knowing
breaches of trust based on the Defendants' decisions to select and
retain the BlackRock TDFs.
The Plaintiffs seek a declaratory judgment that the Defendants'
acts violated ERISA; a permanent injunction against the Defendants
prohibiting the practices described in the complaint and requiring
them to act in the best interests of the Plan and its participants;
equitable, legal, or remedial relief for all losses and/or
compensatory damages; and attorneys' fees, costs, and recoverable
expenses.
The parties agreed on an extended briefing schedule for the
Defendants' motion to dismiss. Briefing was complete on Dec. 16,
2022.
The Defendants argue that (1) Mr. Beldock lacks standing to act as
a plaintiff in this case because he did not suffer an injury
cognizable under Article III, and (2) none of the three Plaintiffs
has standing to pursue prospective injunctive relief on behalf of
the Plan and the proposed class because any such relief would not
benefit them.
Judge Robart agrees with the Defendants. He concludes that Mr.
Beldock has not plausibly alleged that he has Article III standing
to pursue the claims alleged. He finds that (i) Mr. Beldock does
not prove that he suffered the type of concrete and particularized
injury necessary for Article III standing; (ii) the Plaintiffs do
not explain how any alleged failure to do so caused Mr. Beldock a
concrete and particularized injury that could be redressed by a
favorable decision; and (iii) Plaintiffs themselves pointed out
that the BlackRock Retirement TDF in which Mr. Beldock invested
performed better than the retirement vintages offered by the
Comparator TDFs. Accordingly, the Defendants' motion to dismiss Mr.
Beldock from the lawsuit for lack of standing is granted.
Judge Robart also concludes that none of the Plaintiffs plausibly
alleges that he is likely to suffer future injury if the Court does
not enjoin the conduct challenged in the complaint. None of the
three Plaintiffs alleges that he is likely to become reemployed by
Microsoft and to participate again in the Plan. Therefore, the
Defendants' motion to dismiss the Plaintiffs' claims for
prospective injunctive relief is granted.
The Plaintiffs conceded at oral argument that they do not allege
that the Defendants failed to act in accordance with the documents
governing the Plan. Accordingly, Judge Robart grants the
Defendants' motion to dismiss the Plaintiffs' claim for breach of
fiduciary duty under ERISA Section 404(a)(1)(D) and turns to the
Defendants' motion to dismiss the Plaintiffs' claims for breaches
of the duties of prudence and loyalty.
Because the Plaintiffs have failed to plausibly allege that the
Defendants breached their fiduciary duty of prudence, Judge Robart
grants the Defendants' motion to dismiss that claim. Because the
Plaintiffs have not plausibly alleged a claim for breach of the
fiduciary duty of loyalty under ERISA Section 404(a)(1)(A), the
Defendants' motion to dismiss this claim is also granted. And,
because the Defendants' motion to dismiss Plaintiffs' breach of
fiduciary duty claims is granted, the Defendants' motion to dismiss
the Plaintiffs' claims for failure to monitor, co-fiduciary
breaches, and knowing breaches of trust is granted as well.
Finally, Judge Robart grants the Plaintiffs' request for leave to
amend their complaint to address the deficiencies identified in his
Order. The Plaintiffs will file their amended complaint. If they
fail to timely file an amended complaint, the Court will dismiss
the matter with prejudice.
A full-text copy of the Court's Feb. 7, 2023 Order is available at
https://tinyurl.com/38swact9 from Leagle.com.
MR. SOS: Angeles Sues Over Installers' Unpaid Wages
---------------------------------------------------
ALEXANDER ANGELES and ANTHONY FORGIONE, on behalf of themselves and
all others similarly situated v. MR. SOS LLC, ALEX KOGAN, and BRIAN
ZILBER, Defendants, Case No. 2:23-cv-00807 (D.N.J., Feb. 10, 2023)
seeks relief from the Defendants' (i) unlawful actions, which
relief includes compensation for unpaid minimum wages, overtime
wages, spread-of-hours pay, unlawful deductions, and (2) failure to
promptly pay wages. The Plaintiffs further seek liquidated damages,
pre- and post-judgment interest, statutory damages for wage notice
and pay statement violations, and attorneys' fees and costs,
pursuant to the Fair Labor Standards Act, New Jersey Wage and Hour
Law, New Jersey Wage Payment Law, and New York Labor Law.
The Plaintiffs filed the complaint over the Defendants' failure to
pay minimum wages and overtime wages; failure to promptly pay
wages; failure to keep and maintain employee payroll records;
intentional taking of unlawful deductions; failure to provide
spread-of-hours pay; and failure to furnish wage notices compliant.
The Plaintiffs further seek to recover damages against Defendants
to redress the injuries they suffered as a result of being
retaliated against by Defendants for complaining of and opposing
Defendants' unlawful pay practices.
Plaintiffs Angeles and Forgione were employed by Mr. SOS as
installers from December 1, 2020 until January 31, 2022 and from
January 2, 2021 until February 10, 2022, respectively.
Mr. SOS operates under the name of "Mr. SOS Installs" as a provider
of commercial and residential appliance installation, electrician,
handyman, painting, and plumbing services to the public.[BN]
The Plaintiff is represented by:
Justin Ames, Esq.
AKIN LAW GROUP PLLC
45 Broadway, Suite 1420
New York, NY 10006
Telephone: (212) 825-1400
Facsimile: (212) 825-1440
E-mail: justin@akinlaws.com
MVI INC: Caputo Sues Over Unpaid Wages, Breach of Fiduciary Duties
------------------------------------------------------------------
KATHLEEN CAPUTO and NATALIE ROMEO, on behalf of themselves and all
similarly situated individuals, Plaintiffs v. MVI, INC. 401(k)
PLAN; MVI, INC.; MVI HOME CARE, INC.; and KEVIN MCGUIRE,
Defendants, Case No. 4:23-cv-00265-SL (N.D. Ohio, Feb. 9, 2023) is
a class action against the Defendants for violation of the Fair
Labor Standards Act and the Ohio Wage Laws; for unjust enrichment
pursuant to Fed. R. Civ. P. 23; and for breach of fiduciary duties
under the Employee Retirement Income Security Act of 1974.
According to the complaint, named Plaintiffs and the FLSA
Collective Members have been damaged by the Wage Defendants'
willful refusal to pay at least the federal minimum wage for all
hours worked. As a result of the Wage Defendants' FLSA violations,
Named Plaintiffs and the FLSA Collective Members are entitled to
damages, including, but not limited to, unpaid wages, liquidated
damages, costs, and attorneys' fees.
Named Plaintiffs also bring this action on behalf of themselves and
all current and former participants in the defined contribution
plan MVI, Inc. 401(k) Plan. The Plaintiffs seek delinquent
contributions and deductions pursuant to the terms of the governing
plan documents and relevant regulations; liquidated damages and
interest attributable to such delinquent contributions; and relief
arising from any breach of fiduciary duties. They also seek an
order from the Court enjoining the ERISA Defendants from further
breaching the terms of the plan documents and violating ERISA and
its associated regulations, as well as an order enforcing the terms
of the plan documents and ERISA.
Plaintiffs Caputo and Romeo were formerly employed by the Wage
Defendants as physical therapists, and are "participants" in the
MVI, Inc. 401(k) Plan.
MVI, Inc. 401(k) Plan is a "defined contribution plan" under 29
U.S.C. Section 1002(34) that maintains its principal place of
business in Mahoning County, Ohio.
MVI, Inc. is a corporation for profit registered to do business in
the State of Ohio.[BN]
The Plaintiffs are represented by:
Robert E. DeRose, Esq.
Jacob A. Mikalov, Esq.
BARKAN MEIZLISH DEROSE COX, LLP
4200 Regent Street, Suite 210
Columbus, OH 43219
Telephone: (614) 221-4221
Facsimile: (614) 744-2300
E-mail: bderose@barkanmeizlish.com
jmikalov@barkanmeizlish.com
- and -
Joseph J. Guarino III, Esq.
MANGANO LAW OFFICES CO., L.P.A.
2460 Fairmount Blvd., Suite 314
Cleveland, OH 44106
Telephone: (216) 397-5844
Facsimile: (216) 397-5845
E-mail: jguarino@bmanganolaw.com
NELNET SERVICING: Eichenblatt Consolidated with Data Security Cases
-------------------------------------------------------------------
In the class action lawsuit captioned as Eichenblatt v. Nelnet
Servicing, LLC, Case 4:22-cv-03227 (D. Neb), the Hon. Judge Cheryl
R. Zwart entered an order that:
1) The court finds the parties' written submissions are
sufficient to decide the issues of consolidation and
appointment of interim lead counsel. Therefore, the
hearing on those issues scheduled for January 31, 2023 is
cancelled.
2) The motions to consolidate are granted and the following
cases are consolidated: Case No. 4:22CV3181; Case
No.4:22CV3184; Case No.4:22CV3185; Case No.4:22CV3186;
Case No.4:22CV3187; Case No.4:22CV3188; Case
No.4:22CV3189; Case No.4:22CV3191; Case No.4:22CV3193;
Case No.4:22CV3194; Case No.4:22CV3195; Case
No.4:22CV3196; Case No.4:22CV3197; Case No.4:22CV3203;
Case No.4:22CV3204; Case No.4:22CV3207; Case
No.4:22CV3209; Case No.4:22CV3211; Case No.4:22CV3227;
Case No.4:22CV3241; Case No.4:22CV3259; Case
No.4:22CV3267; and Case No.8:22CV413.
3) As to the motions to appoint counsel:
a) The motion to appoint counsel in Spearman is granted.
(Case No. 4:22cv3191) The Spearman case is designated
as the Lead Case and all other cases listed in the
designated as a "Member Case."
b) The motions to appoint counsel filed in Herrick
(Case No. 4:22CV3181 ), Carlson (Case No. 22CV3184),
and Freeland (22CV3211 ) are denied.
c) The motion to appoint counsel filed in Simmons
(Case No. 4:22cv3194) is denied.
4) As to the Plaintiffs' anticipated motion to file a
consolidated amended complaint:
a) Lowey/SGT shall file any such motion on or before March
3, 2023. If the motion is unopposed, the motion shall
so state.
b) If the motion is opposed, within 30 days after it is
filed:
i. Defendant Nelnet Servicing, LLC's shall file its
response to Plaintiffs' motion; and
ii. If Defendant Edfinancial Services, LLC is named
in the proposed consolidated amended complaint,
it shall either file a response to Plaintiffs'
motion or a motion to stay the proposed claims
against it until the claims against Nelnet
Servicing, LLC are resolved.
c) Any reply shall be filed within 15 days after
Defendant(s) file a response to Plaintiffs' motion.
5) The court's CM/ECF System has the capacity for "spreading"
text among the consolidated cases. If properly docketed,
the documents filed in the Lead Case will automatically be
filed in all Member Cases. To this end, the parties are
instructed to file all further documents (except as
described below in subsections a) and b) of this
paragraph) in the Lead Case, No. 4:22CV3191 Spearman et al
v. Nelnet Servicing, LLC and to select the option "yes" in
response to the System's question whether to spread the
text.
a) The parties may not use the spread text feature to file
complaints, amended complaints, and answers; to pay
filing fees electronically using pay.gov; to file items
related to service of process; or to file notices of
appeal. Attempting to do so will cause a system error,
and therefore these documents must be separately filed
in each of the lead and member cases. So, when filing
such documents, Plaintiffs' interim lead counsel and
defense counsel may either file the document (e.g.,
Plaintiff's consolidated amended complaint, Defendant's
answer), in each case, or file the document in Spearman
and ask the court to then file it in all member cases.
b) If a party believes that a document in addition to
those described in subparagraph a) above should not be
filed in all of these consolidated cases, the party
must move for permission to file the document in a
limited number of the cases. The motion must be filed
in each of the consolidated cases using the spread text
feature.
The Eichenblatt suit is consolidated in Data Security Cases Against
NELNET SERVICING, LLC.
Twenty-three cases have been filed against the Defendant(s) arising
from an alleged data breach in 2022. The cases originally filed in
other districts have now been transferred to this district and each
of the above-captioned cases have been
designated by the court as "related."
Pursuant to NEGenR 1.4(a)(4) the cases have all been assigned to
District Judge John M. Gerrard for disposition, and to
the undersigned for judicial supervision. Motions to consolidate
and motions to appoint interim lead counsel in the related cases
are currently pending.
The parties submitted sufficient information for the court to grant
the motions to consolidate and to appoint lead counsel on behalf of
the putative class. As such, the hearing on the
pending motions will be canceled.
On December 13, 2022, Lowey Dannenberg, P.C. and Silver Golub &
Teitell LLP Law Firms filed a motion and brief in Spearman
requesting consolidation of the related cases against Nelnet
Servicing, LLC, and the appointment of their firms as interim
co-lead class counsel on behalf of the proposed class.
Nelnet provides education services. The Company offers educational
services in loan servicing, payment processing, education planning,
and asset management. Nelnet Servicing operates in the United
States and Canada.
A copy of the Court's order dated Jan. 30, 2023 is available from
PacerMonitor.com at https://bit.ly/3lxu89x at no extra charge.[CC]
NELNET SERVICING: Freeland Consolidated with Data Security Cases
----------------------------------------------------------------
In the class action lawsuit captioned as Freeland v. Nelnet
Servicing, LLC, Case No. 4:22-cv-03211 (D. Neb.), the Hon. Judge
Cheryl R. Zwart entered an order that:
1) The court finds the parties' written submissions are
sufficient to decide the issues of consolidation and
appointment of interim lead counsel. Therefore, the
hearing on those issues scheduled for January 31, 2023 is
cancelled.
2) The motions to consolidate are granted and the following
cases are consolidated: Case No. 4:22CV3181; Case
No.4:22CV3184; Case No.4:22CV3185; Case No.4:22CV3186;
Case No.4:22CV3187; Case No.4:22CV3188; Case
No.4:22CV3189; Case No.4:22CV3191; Case No.4:22CV3193;
Case No.4:22CV3194; Case No.4:22CV3195; Case
No.4:22CV3196; Case No.4:22CV3197; Case No.4:22CV3203;
Case No.4:22CV3204; Case No.4:22CV3207; Case
No.4:22CV3209; Case No.4:22CV3211; Case No.4:22CV3227;
Case No.4:22CV3241; Case No.4:22CV3259; Case
No.4:22CV3267; and Case No.8:22CV413.
3) As to the motions to appoint counsel:
a) The motion to appoint counsel in Spearman is granted.
(Case No. 4:22cv3191) The Spearman case is designated
as the Lead Case and all other cases listed in the
designated as a "Member Case."
b) The motions to appoint counsel filed in Herrick
(Case No. 4:22CV3181 ), Carlson (Case No. 22CV3184),
and Freeland (22CV3211 ) are denied.
c) The motion to appoint counsel filed in Simmons
(Case No. 4:22cv3194) is denied.
4) As to the Plaintiffs' anticipated motion to file a
consolidated amended complaint:
a) Lowey/SGT shall file any such motion on or before March
3, 2023. If the motion is unopposed, the motion shall
so state.
b) If the motion is opposed, within 30 days after it is
filed:
i. Defendant Nelnet Servicing, LLC's shall file its
response to Plaintiffs' motion; and
ii. If Defendant Edfinancial Services, LLC is named
in the proposed consolidated amended complaint,
it shall either file a response to Plaintiffs'
motion or a motion to stay the proposed claims
against it until the claims against Nelnet
Servicing, LLC are resolved.
c) Any reply shall be filed within 15 days after
Defendant(s) file a response to Plaintiffs' motion.
5) The court's CM/ECF System has the capacity for "spreading"
text among the consolidated cases. If properly docketed,
the documents filed in the Lead Case will automatically be
filed in all Member Cases. To this end, the parties are
instructed to file all further documents (except as
described below in subsections a) and b) of this
paragraph) in the Lead Case, No. 4:22CV3191 Spearman et al
v. Nelnet Servicing, LLC and to select the option "yes" in
response to the System's question whether to spread the
text.
a) The parties may not use the spread text feature to file
complaints, amended complaints, and answers; to pay
filing fees electronically using pay.gov; to file items
related to service of process; or to file notices of
appeal. Attempting to do so will cause a system error,
and therefore these documents must be separately filed
in each of the lead and member cases. So, when filing
such documents, Plaintiffs' interim lead counsel and
defense counsel may either file the document (e.g.,
Plaintiff's consolidated amended complaint, Defendant's
answer), in each case, or file the document in Spearman
and ask the court to then file it in all member cases.
b) If a party believes that a document in addition to
those described in subparagraph a) above should not be
filed in all of these consolidated cases, the party
must move for permission to file the document in a
limited number of the cases. The motion must be filed
in each of the consolidated cases using the spread text
feature.
The Freeland suit is consolidated in Data Security Cases Against
NELNET SERVICING, LLC.
Twenty-three cases have been filed against the Defendant(s) arising
from an alleged data breach in 2022. The cases originally filed in
other districts have now been transferred to this district and each
of the above-captioned cases have been designated by the court as
"related."
Pursuant to NEGenR 1.4(a)(4) the cases have all been assigned to
District Judge John M. Gerrard for disposition, and to
the undersigned for judicial supervision. Motions to consolidate
and motions to appoint interim lead counsel in the related cases
are currently pending.
The parties submitted sufficient information for the court to grant
the motions to consolidate and to appoint lead counsel on behalf of
the putative class. As such, the hearing on the pending motions
will be canceled.
On December 13, 2022, Lowey Dannenberg, P.C. and Silver Golub &
Teitell LLP Law Firms filed a motion and brief in Spearman
requesting consolidation of the related cases against Nelnet
Servicing, LLC, and the appointment of their firms as interim
co-lead class counsel on behalf of the proposed class.
Nelnet provides education services. The Company offers educational
services in loan servicing, payment processing, education planning,
and asset management. Nelnet Servicing operates in the United
States and Canada.
A copy of the Court's order dated Jan. 30, 2023 is available from
PacerMonitor.com at https://bit.ly/3YJZN5J at no extra charge.[CC]
NELNET SERVICING: Freeman Consolidated with Data Security Cases
---------------------------------------------------------------
In the class action lawsuit captioned as Freeman, et al., v. Nelnet
Servicing, LLC, Case No. 4:22-cv-03197 (D. Neb.), the Hon. Judge
Cheryl R. Zwart entered an order that:
1) The court finds the parties' written submissions are
sufficient to decide the issues of consolidation and
appointment of interim lead counsel. Therefore, the
hearing on those issues scheduled for January 31, 2023 is
cancelled.
2) The motions to consolidate are granted and the following
cases are consolidated: Case No. 4:22CV3181; Case
No.4:22CV3184; Case No.4:22CV3185; Case No.4:22CV3186;
Case No.4:22CV3187; Case No.4:22CV3188; Case
No.4:22CV3189; Case No.4:22CV3191; Case No.4:22CV3193;
Case No.4:22CV3194; Case No.4:22CV3195; Case
No.4:22CV3196; Case No.4:22CV3197; Case No.4:22CV3203;
Case No.4:22CV3204; Case No.4:22CV3207; Case
No.4:22CV3209; Case No.4:22CV3211; Case No.4:22CV3227;
Case No.4:22CV3241; Case No.4:22CV3259; Case
No.4:22CV3267; and Case No.8:22CV413.
3) As to the motions to appoint counsel:
a) The motion to appoint counsel in Spearman is granted.
(Case No. 4:22cv3191) The Spearman case is designated
as the Lead Case and all other cases listed in the
designated as a "Member Case."
b) The motions to appoint counsel filed in Herrick
(Case No. 4:22CV3181 ), Carlson (Case No. 22CV3184),
and Freeland (22CV3211 ) are denied.
c) The motion to appoint counsel filed in Simmons
(Case No. 4:22cv3194) is denied.
4) As to the Plaintiffs' anticipated motion to file a
consolidated amended complaint:
a) Lowey/SGT shall file any such motion on or before March
3, 2023. If the motion is unopposed, the motion shall
so state.
b) If the motion is opposed, within 30 days after it is
filed:
i. Defendant Nelnet Servicing, LLC's shall file its
response to Plaintiffs' motion; and
ii. If Defendant Edfinancial Services, LLC is named
in the proposed consolidated amended complaint,
it shall either file a response to Plaintiffs'
motion or a motion to stay the proposed claims
against it until the claims against Nelnet
Servicing, LLC are resolved.
c) Any reply shall be filed within 15 days after
Defendant(s) file a response to Plaintiffs' motion.
5) The court's CM/ECF System has the capacity for "spreading"
text among the consolidated cases. If properly docketed,
the documents filed in the Lead Case will automatically be
filed in all Member Cases. To this end, the parties are
instructed to file all further documents (except as
described below in subsections a) and b) of this
paragraph) in the Lead Case, No. 4:22CV3191 Spearman et al
v. Nelnet Servicing, LLC and to select the option "yes" in
response to the System's question whether to spread the
text.
a) The parties may not use the spread text feature to file
complaints, amended complaints, and answers; to pay
filing fees electronically using pay.gov; to file items
related to service of process; or to file notices of
appeal. Attempting to do so will cause a system error,
and therefore these documents must be separately filed
in each of the lead and member cases. So, when filing
such documents, Plaintiffs' interim lead counsel and
defense counsel may either file the document (e.g.,
Plaintiff's consolidated amended complaint, Defendant's
answer), in each case, or file the document in Spearman
and ask the court to then file it in all member cases.
b) If a party believes that a document in addition to
those described in subparagraph a) above should not be
filed in all of these consolidated cases, the party
must move for permission to file the document in a
limited number of the cases. The motion must be filed
in each of the consolidated cases using the spread text
feature.
The Freeman suit is consolidated in Data Security Cases Against
NELNET SERVICING, LLC.
Twenty-three cases have been filed against the Defendant(s) arising
from an alleged data breach in 2022. The cases originally filed in
other districts have now been transferred to this district and each
of the above-captioned cases have been
designated by the court as "related."
Pursuant to NEGenR 1.4(a)(4) the cases have all been assigned to
District Judge John M. Gerrard for disposition, and to the
undersigned for judicial supervision. Motions to consolidate and
motions to appoint interim lead counsel in the related cases are
currently pending.
The parties submitted sufficient information for the court to grant
the motions to consolidate and to appoint lead counsel on behalf of
the putative class. As such, the hearing on the pending motions
will be canceled.
On December 13, 2022, Lowey Dannenberg, P.C. and Silver Golub &
Teitell LLP Law Firms filed a motion and brief in Spearman
requesting consolidation of the related cases against Nelnet
Servicing, LLC, and the appointment of their firms as interim
co-lead class counsel on behalf of the proposed class.
Nelnet provides education services. The Company offers educational
services in loan servicing, payment processing, education planning,
and asset management. Nelnet Servicing operates in the United
States and Canada.
A copy of the Court's order dated Jan. 30, 2023 is available from
PacerMonitor.com at https://bit.ly/3IlLS0g at no extra charge.[CC]
NELNET SERVICING: Gamen Consolidated with Data Security Cases
-------------------------------------------------------------
In the class action lawsuit captioned as Gamen v. Nelnet Servicing,
LLC, Case No. 4:22-cv-03209 (D. Neb.), the Hon. Judge Cheryl R.
Zwart entered an order that:
1) The court finds the parties' written submissions are
sufficient to decide the issues of consolidation and
appointment of interim lead counsel. Therefore, the
hearing on those issues scheduled for January 31, 2023 is
cancelled.
2) The motions to consolidate are granted and the following
cases are consolidated: Case No. 4:22CV3181; Case
No.4:22CV3184; Case No.4:22CV3185; Case No.4:22CV3186;
Case No.4:22CV3187; Case No.4:22CV3188; Case
No.4:22CV3189; Case No.4:22CV3191; Case No.4:22CV3193;
Case No.4:22CV3194; Case No.4:22CV3195; Case
No.4:22CV3196; Case No.4:22CV3197; Case No.4:22CV3203;
Case No.4:22CV3204; Case No.4:22CV3207; Case
No.4:22CV3209; Case No.4:22CV3211; Case No.4:22CV3227;
Case No.4:22CV3241; Case No.4:22CV3259; Case
No.4:22CV3267; and Case No.8:22CV413.
3) As to the motions to appoint counsel:
a) The motion to appoint counsel in Spearman is granted.
(Case No. 4:22cv3191) The Spearman case is designated
as the Lead Case and all other cases listed in the
designated as a "Member Case."
b) The motions to appoint counsel filed in Herrick
(Case No. 4:22CV3181 ), Carlson (Case No. 22CV3184),
and Freeland (22CV3211 ) are denied.
c) The motion to appoint counsel filed in Simmons
(Case No. 4:22cv3194) is denied.
4) As to the Plaintiffs' anticipated motion to file a
consolidated amended complaint:
a) Lowey/SGT shall file any such motion on or before March
3, 2023. If the motion is unopposed, the motion shall
so state.
b) If the motion is opposed, within 30 days after it is
filed:
i. Defendant Nelnet Servicing, LLC's shall file its
response to Plaintiffs' motion; and
ii. If Defendant Edfinancial Services, LLC is named
in the proposed consolidated amended complaint,
it shall either file a response to Plaintiffs'
motion or a motion to stay the proposed claims
against it until the claims against Nelnet
Servicing, LLC are resolved.
c) Any reply shall be filed within 15 days after
Defendant(s) file a response to Plaintiffs' motion.
5) The court's CM/ECF System has the capacity for "spreading"
text among the consolidated cases. If properly docketed,
the documents filed in the Lead Case will automatically be
filed in all Member Cases. To this end, the parties are
instructed to file all further documents (except as
described below in subsections a) and b) of this
paragraph) in the Lead Case, No. 4:22CV3191 Spearman et al
v. Nelnet Servicing, LLC and to select the option "yes" in
response to the System's question whether to spread the
text.
a) The parties may not use the spread text feature to file
complaints, amended complaints, and answers; to pay
filing fees electronically using pay.gov; to file items
related to service of process; or to file notices of
appeal. Attempting to do so will cause a system error,
and therefore these documents must be separately filed
in each of the lead and member cases. So, when filing
such documents, Plaintiffs' interim lead counsel and
defense counsel may either file the document (e.g.,
Plaintiff's consolidated amended complaint, Defendant's
answer), in each case, or file the document in Spearman
and ask the court to then file it in all member cases.
b) If a party believes that a document in addition to
those described in subparagraph a) above should not be
filed in all of these consolidated cases, the party
must move for permission to file the document in a
limited number of the cases. The motion must be filed
in each of the consolidated cases using the spread text
feature.
The Gamen suit is consolidated in Data Security Cases Against
NELNET SERVICING, LLC.
Twenty-three cases have been filed against the Defendant(s) arising
from an alleged data breach in 2022. The cases originally filed in
other districts have now been transferred to this district and each
of the above-captioned cases have been
designated by the court as "related."
Pursuant to NEGenR 1.4(a)(4) the cases have all been assigned to
District Judge John M. Gerrard for disposition, and to
the undersigned for judicial supervision. Motions to consolidate
and motions to appoint interim lead counsel in the related cases
are currently pending.
The parties submitted sufficient information for the court to grant
the motions to consolidate and to appoint lead counsel on behalf of
the putative class. As such, the hearing on the
pending motions will be canceled.
On December 13, 2022, Lowey Dannenberg, P.C. and Silver Golub &
Teitell LLP Law Firms filed a motion and brief in Spearman
requesting consolidation of the related cases against Nelnet
Servicing, LLC, and the appointment of their firms as interim
co-lead class counsel on behalf of the proposed class.
Nelnet provides education services. The Company offers educational
services in loan servicing, payment processing, education planning,
and asset management. Nelnet Servicing operates in the United
States and Canada.
NELNET SERVICING: Hegarty Consolidated with Data Security Cases
---------------------------------------------------------------
In the class action lawsuit captioned as Hegarty v. Nelnet
Servicing, LLC, Case No. 4:22-cv-03186 (D. Neb.), the Hon. Judge
Cheryl R. Zwart entered an order that:
1) The court finds the parties' written submissions are
sufficient to decide the issues of consolidation and
appointment of interim lead counsel. Therefore, the
hearing on those issues scheduled for January 31, 2023 is
cancelled.
2) The motions to consolidate are granted and the following
cases are consolidated: Case No. 4:22CV3181; Case
No.4:22CV3184; Case No.4:22CV3185; Case No.4:22CV3186;
Case No.4:22CV3187; Case No.4:22CV3188; Case
No.4:22CV3189; Case No.4:22CV3191; Case No.4:22CV3193;
Case No.4:22CV3194; Case No.4:22CV3195; Case
No.4:22CV3196; Case No.4:22CV3197; Case No.4:22CV3203;
Case No.4:22CV3204; Case No.4:22CV3207; Case
No.4:22CV3209; Case No.4:22CV3211; Case No.4:22CV3227;
Case No.4:22CV3241; Case No.4:22CV3259; Case
No.4:22CV3267; and Case No.8:22CV413.
3) As to the motions to appoint counsel:
a) The motion to appoint counsel in Spearman is granted.
(Case No. 4:22cv3191) The Spearman case is designated
as the Lead Case and all other cases listed in the
designated as a "Member Case."
b) The motions to appoint counsel filed in Herrick
(Case No. 4:22CV3181 ), Carlson (Case No. 22CV3184),
and Freeland (22CV3211 ) are denied.
c) The motion to appoint counsel filed in Simmons
(Case No. 4:22cv3194) is denied.
4) As to the Plaintiffs' anticipated motion to file a
consolidated amended complaint:
a) Lowey/SGT shall file any such motion on or before March
3, 2023. If the motion is unopposed, the motion shall
so state.
b) If the motion is opposed, within 30 days after it is
filed:
i. Defendant Nelnet Servicing, LLC's shall file its
response to Plaintiffs' motion; and
ii. If Defendant Edfinancial Services, LLC is named
in the proposed consolidated amended complaint,
it shall either file a response to Plaintiffs'
motion or a motion to stay the proposed claims
against it until the claims against Nelnet
Servicing, LLC are resolved.
c) Any reply shall be filed within 15 days after
Defendant(s) file a response to Plaintiffs' motion.
5) The court's CM/ECF System has the capacity for "spreading"
text among the consolidated cases. If properly docketed,
the documents filed in the Lead Case will automatically be
filed in all Member Cases. To this end, the parties are
instructed to file all further documents (except as
described below in subsections a) and b) of this
paragraph) in the Lead Case, No. 4:22CV3191 Spearman et al
v. Nelnet Servicing, LLC and to select the option "yes" in
response to the System's question whether to spread the
text.
a) The parties may not use the spread text feature to file
complaints, amended complaints, and answers; to pay
filing fees electronically using pay.gov; to file items
related to service of process; or to file notices of
appeal. Attempting to do so will cause a system error,
and therefore these documents must be separately filed
in each of the lead and member cases. So, when filing
such documents, Plaintiffs' interim lead counsel and
defense counsel may either file the document (e.g.,
Plaintiff's consolidated amended complaint, Defendant's
answer), in each case, or file the document in Spearman
and ask the court to then file it in all member cases.
b) If a party believes that a document in addition to
those described in subparagraph a) above should not be
filed in all of these consolidated cases, the party
must move for permission to file the document in a
limited number of the cases. The motion must be filed
in each of the consolidated cases using the spread text
feature.
The Sayers suit is consolidated in Data Security Cases Against
NELNET SERVICING, LLC.
Twenty-three cases have been filed against the Defendant(s) arising
from an alleged data breach in 2022. The cases originally filed in
other districts have now been transferred to this district and each
of the above-captioned cases have been designated by the court as
"related."
Pursuant to NEGenR 1.4(a)(4) the cases have all been assigned to
District Judge John M. Gerrard for disposition, and to the
undersigned for judicial supervision. Motions to consolidate and
motions to appoint interim lead counsel in the related cases are
currently pending.
The parties submitted sufficient information for the court to grant
the motions to consolidate and to appoint lead counsel on behalf of
the putative class. As such, the hearing on the pending motions
will be canceled.
On December 13, 2022, Lowey Dannenberg, P.C. and Silver Golub &
Teitell LLP Law Firms filed a motion and brief in Spearman
requesting consolidation of the related cases against Nelnet
Servicing, LLC, and the appointment of their firms as interim
co-lead class counsel on behalf of the proposed class.
Nelnet provides education services. The Company offers educational
services in loan servicing, payment processing, education planning,
and asset management. Nelnet Servicing operates in the United
States and Canada.
A copy of the Court's order dated Jan. 30, 2023 is available from
PacerMonitor.com at https://bit.ly/3IjC72I at no extra charge.[CC]
NELNET SERVICING: Herrick Consolidated with Data Security Cases
---------------------------------------------------------------
In the class action lawsuit captioned as Herrick v. Nelnet
Servicing, LLC, Case No. 4:22-cv-03181 (D. Neb.), the Hon. Judge
Cheryl R. Zwart entered an order that:
1) The court finds the parties' written submissions are
sufficient to decide the issues of consolidation and
appointment of interim lead counsel. Therefore, the
hearing on those issues scheduled for January 31, 2023 is
cancelled.
2) The motions to consolidate are granted and the following
cases are consolidated: Case No. 4:22CV3181; Case
No.4:22CV3184; Case No.4:22CV3185; Case No.4:22CV3186;
Case No.4:22CV3187; Case No.4:22CV3188; Case
No.4:22CV3189; Case No.4:22CV3191; Case No.4:22CV3193;
Case No.4:22CV3194; Case No.4:22CV3195; Case
No.4:22CV3196; Case No.4:22CV3197; Case No.4:22CV3203;
Case No.4:22CV3204; Case No.4:22CV3207; Case
No.4:22CV3209; Case No.4:22CV3211; Case No.4:22CV3227;
Case No.4:22CV3241; Case No.4:22CV3259; Case
No.4:22CV3267; and Case No.8:22CV413.
3) As to the motions to appoint counsel:
a) The motion to appoint counsel in Spearman is granted.
(Case No. 4:22cv3191) The Spearman case is designated
as the Lead Case and all other cases listed in the
designated as a "Member Case."
b) The motions to appoint counsel filed in Herrick
(Case No. 4:22CV3181 ), Carlson (Case No. 22CV3184),
and Freeland (22CV3211 ) are denied.
c) The motion to appoint counsel filed in Simmons
(Case No. 4:22cv3194) is denied.
4) As to the Plaintiffs' anticipated motion to file a
consolidated amended complaint:
a) Lowey/SGT shall file any such motion on or before March
3, 2023. If the motion is unopposed, the motion shall
so state.
b) If the motion is opposed, within 30 days after it is
filed:
i. Defendant Nelnet Servicing, LLC's shall file its
response to Plaintiffs' motion; and
ii. If Defendant Edfinancial Services, LLC is named
in the proposed consolidated amended complaint,
it shall either file a response to Plaintiffs'
motion or a motion to stay the proposed claims
against it until the claims against Nelnet
Servicing, LLC are resolved.
c) Any reply shall be filed within 15 days after
Defendant(s) file a response to Plaintiffs' motion.
5) The court's CM/ECF System has the capacity for "spreading"
text among the consolidated cases. If properly docketed,
the documents filed in the Lead Case will automatically be
filed in all Member Cases. To this end, the parties are
instructed to file all further documents (except as
described below in subsections a) and b) of this
paragraph) in the Lead Case, No. 4:22CV3191 Spearman et al
v. Nelnet Servicing, LLC and to select the option "yes" in
response to the System's question whether to spread the
text.
a) The parties may not use the spread text feature to file
complaints, amended complaints, and answers; to pay
filing fees electronically using pay.gov; to file items
related to service of process; or to file notices of
appeal. Attempting to do so will cause a system error,
and therefore these documents must be separately filed
in each of the lead and member cases. So, when filing
such documents, Plaintiffs' interim lead counsel and
defense counsel may either file the document (e.g.,
Plaintiff's consolidated amended complaint, Defendant's
answer), in each case, or file the document in Spearman
and ask the court to then file it in all member cases.
b) If a party believes that a document in addition to
those described in subparagraph a) above should not be
filed in all of these consolidated cases, the party
must move for permission to file the document in a
limited number of the cases. The motion must be filed
in each of the consolidated cases using the spread text
feature.
The Herrick suit is consolidated in Data Security Cases Against
NELNET SERVICING, LLC.
Twenty-three cases have been filed against the Defendant(s) arising
from an alleged data breach in 2022. The cases originally filed in
other districts have now been transferred to this district and each
of the above-captioned cases have been designated by the court as
"related."
Pursuant to NEGenR 1.4(a)(4) the cases have all been assigned to
District Judge John M. Gerrard for disposition, and to
the undersigned for judicial supervision. Motions to consolidate
and motions to appoint interim lead counsel in the related cases
are currently pending.
The parties submitted sufficient information for the court to grant
the motions to consolidate and to appoint lead counsel on behalf of
the putative class. As such, the hearing on the pending motions
will be canceled.
On December 13, 2022, Lowey Dannenberg, P.C. and Silver Golub &
Teitell LLP Law Firms filed a motion and brief in Spearman
requesting consolidation of the related cases against Nelnet
Servicing, LLC, and the appointment of their firms as interim
co-lead class counsel on behalf of the proposed class.
Nelnet provides education services. The Company offers educational
services in loan servicing, payment processing, education planning,
and asset management. Nelnet Servicing operates in the United
States and Canada.
A copy of the Court's order dated Jan. 30, 2023 is available from
PacerMonitor.com at https://bit.ly/3Yp3QVm at no extra charge.[CC]
NELNET SERVICING: Scott Consolidated with Data Security Cases
-------------------------------------------------------------
In the class action lawsuit captioned as Scott, et al., v. Nelnet
Servicing, LLC, Case No. 4:22-cv-03259 (D. Neb.), the Hon. Judge
Cheryl R. Zwart entered an order that:
1) The court finds the parties' written submissions are
sufficient to decide the issues of consolidation and
appointment of interim lead counsel. Therefore, the
hearing on those issues scheduled for January 31, 2023 is
cancelled.
2) The motions to consolidate are granted and the following
cases are consolidated: Case No. 4:22CV3181; Case
No.4:22CV3184; Case No.4:22CV3185; Case No.4:22CV3186;
Case No.4:22CV3187; Case No.4:22CV3188; Case
No.4:22CV3189; Case No.4:22CV3191; Case No.4:22CV3193;
Case No.4:22CV3194; Case No.4:22CV3195; Case
No.4:22CV3196; Case No.4:22CV3197; Case No.4:22CV3203;
Case No.4:22CV3204; Case No.4:22CV3207; Case
No.4:22CV3209; Case No.4:22CV3211; Case No.4:22CV3227;
Case No.4:22CV3241; Case No.4:22CV3259; Case
No.4:22CV3267; and Case No.8:22CV413.
3) As to the motions to appoint counsel:
a) The motion to appoint counsel in Spearman is granted.
(Case No. 4:22cv3191) The Spearman case is designated
as the Lead Case and all other cases listed in the
designated as a "Member Case."
b) The motions to appoint counsel filed in Herrick
(Case No. 4:22CV3181 ), Carlson (Case No. 22CV3184),
and Freeland (22CV3211 ) are denied.
c) The motion to appoint counsel filed in Simmons
(Case No. 4:22cv3194) is denied.
4) As to the Plaintiffs' anticipated motion to file a
consolidated amended complaint:
a) Lowey/SGT shall file any such motion on or before March
3, 2023. If the motion is unopposed, the motion shall
so state.
b) If the motion is opposed, within 30 days after it is
filed:
i. Defendant Nelnet Servicing, LLC's shall file its
response to Plaintiffs' motion; and
ii. If Defendant Edfinancial Services, LLC is named
in the proposed consolidated amended complaint,
it shall either file a response to Plaintiffs'
motion or a motion to stay the proposed claims
against it until the claims against Nelnet
Servicing, LLC are resolved.
c) Any reply shall be filed within 15 days after
Defendant(s) file a response to Plaintiffs' motion.
5) The court's CM/ECF System has the capacity for "spreading"
text among the consolidated cases. If properly docketed,
the documents filed in the Lead Case will automatically be
filed in all Member Cases. To this end, the parties are
instructed to file all further documents (except as
described below in subsections a) and b) of this
paragraph) in the Lead Case, No. 4:22CV3191 Spearman et al
v. Nelnet Servicing, LLC and to select the option "yes" in
response to the System's question whether to spread the
text.
a) The parties may not use the spread text feature to file
complaints, amended complaints, and answers; to pay
filing fees electronically using pay.gov; to file items
related to service of process; or to file notices of
appeal. Attempting to do so will cause a system error,
and therefore these documents must be separately filed
in each of the lead and member cases. So, when filing
such documents, Plaintiffs' interim lead counsel and
defense counsel may either file the document (e.g.,
Plaintiff's consolidated amended complaint, Defendant's
answer), in each case, or file the document in Spearman
and ask the court to then file it in all member cases.
b) If a party believes that a document in addition to
those described in subparagraph a) above should not be
filed in all of these consolidated cases, the party
must move for permission to file the document in a
limited number of the cases. The motion must be filed
in each of the consolidated cases using the spread text
feature.
The Scott suit is consolidated in Data Security Cases Against
NELNET SERVICING, LLC.
Twenty-three cases have been filed against the Defendant(s) arising
from an alleged data breach in 2022. The cases originally filed in
other districts have now been transferred to this district and each
of the above-captioned cases have been
designated by the court as "related."
Pursuant to NEGenR 1.4(a)(4) the cases have all been assigned to
District Judge John M. Gerrard for disposition, and to
the undersigned for judicial supervision. Motions to consolidate
and motions to appoint interim lead counsel in the related cases
are currently pending.
The parties submitted sufficient information for the court to grant
the motions to consolidate and to appoint lead counsel on behalf of
the putative class. As such, the hearing on the pending motions
will be canceled.
On December 13, 2022, Lowey Dannenberg, P.C. and Silver Golub &
Teitell LLP Law Firms filed a motion and brief in Spearman
requesting consolidation of the related cases against Nelnet
Servicing, LLC, and the appointment of their firms as interim
co-lead class counsel on behalf of the proposed class.
Nelnet provides education services. The Company offers educational
services in loan servicing, payment processing, education planning,
and asset management. Nelnet Servicing operates in the United
States and Canada.
A copy of the Court's order dated Jan. 30, 2023 is available from
PacerMonitor.com at https://bit.ly/3K4bNLw at no extra charge.[CC]
NELNET SERVICING: Simmons Consolidated with Data Security Cases
---------------------------------------------------------------
In the class action lawsuit captioned as Simmons v. Nelnet
Servicing, LLC, Case No. 4:22-cv-03194 (D. Neb.), the Hon. Judge
Cheryl R. Zwart entered an order that:
1) The court finds the parties' written submissions are
sufficient to decide the issues of consolidation and
appointment of interim lead counsel. Therefore, the
hearing on those issues scheduled for January 31, 2023 is
cancelled.
2) The motions to consolidate are granted and the following
cases are consolidated: Case No. 4:22CV3181; Case
No.4:22CV3184; Case No.4:22CV3185; Case No.4:22CV3186;
Case No.4:22CV3187; Case No.4:22CV3188; Case
No.4:22CV3189; Case No.4:22CV3191; Case No.4:22CV3193;
Case No.4:22CV3194; Case No.4:22CV3195; Case
No.4:22CV3196; Case No.4:22CV3197; Case No.4:22CV3203;
Case No.4:22CV3204; Case No.4:22CV3207; Case
No.4:22CV3209; Case No.4:22CV3211; Case No.4:22CV3227;
Case No.4:22CV3241; Case No.4:22CV3259; Case
No.4:22CV3267; and Case No.8:22CV413.
3) As to the motions to appoint counsel:
a) The motion to appoint counsel in Spearman is granted.
(Case No. 4:22cv3191) The Spearman case is designated
as the Lead Case and all other cases listed in the
designated as a "Member Case."
b) The motions to appoint counsel filed in Herrick
(Case No. 4:22CV3181 ), Carlson (Case No. 22CV3184),
and Freeland (22CV3211 ) are denied.
c) The motion to appoint counsel filed in Simmons
(Case No. 4:22cv3194) is denied.
4) As to the Plaintiffs' anticipated motion to file a
consolidated amended complaint:
a) Lowey/SGT shall file any such motion on or before March
3, 2023. If the motion is unopposed, the motion shall
so state.
b) If the motion is opposed, within 30 days after it is
filed:
i. Defendant Nelnet Servicing, LLC's shall file its
response to Plaintiffs' motion; and
ii. If Defendant Edfinancial Services, LLC is named
in the proposed consolidated amended complaint,
it shall either file a response to Plaintiffs'
motion or a motion to stay the proposed claims
against it until the claims against Nelnet
Servicing, LLC are resolved.
c) Any reply shall be filed within 15 days after
Defendant(s) file a response to Plaintiffs' motion.
5) The court's CM/ECF System has the capacity for "spreading"
text among the consolidated cases. If properly docketed,
the documents filed in the Lead Case will automatically be
filed in all Member Cases. To this end, the parties are
instructed to file all further documents (except as
described below in subsections a) and b) of this
paragraph) in the Lead Case, No. 4:22CV3191 Spearman et al
v. Nelnet Servicing, LLC and to select the option "yes" in
response to the System's question whether to spread the
text.
a) The parties may not use the spread text feature to file
complaints, amended complaints, and answers; to pay
filing fees electronically using pay.gov; to file items
related to service of process; or to file notices of
appeal. Attempting to do so will cause a system error,
and therefore these documents must be separately filed
in each of the lead and member cases. So, when filing
such documents, Plaintiffs' interim lead counsel and
defense counsel may either file the document (e.g.,
Plaintiff's consolidated amended complaint, Defendant's
answer), in each case, or file the document in Spearman
and ask the court to then file it in all member cases.
b) If a party believes that a document in addition to
those described in subparagraph a) above should not be
filed in all of these consolidated cases, the party
must move for permission to file the document in a
limited number of the cases. The motion must be filed
in each of the consolidated cases using the spread text
feature.
The Simmons suit is consolidated in Data Security Cases Against
NELNET SERVICING, LLC.
Twenty-three cases have been filed against the Defendant(s) arising
from an alleged data breach in 2022. The cases originally filed in
other districts have now been transferred to this district and each
of the above-captioned cases have been designated by the court as
"related."
Pursuant to NEGenR 1.4(a)(4) the cases have all been assigned to
District Judge John M. Gerrard for disposition, and to the
undersigned for judicial supervision. Motions to consolidate and
motions to appoint interim lead counsel in the related cases are
currently pending.
The parties submitted sufficient information for the court to grant
the motions to consolidate and to appoint lead counsel on behalf of
the putative class. As such, the hearing on the pending motions
will be canceled.
On December 13, 2022, Lowey Dannenberg, P.C. and Silver Golub &
Teitell LLP Law Firms filed a motion and brief in Spearman
requesting consolidation of the related cases against Nelnet
Servicing, LLC, and the appointment of their firms as interim
co-lead class counsel on behalf of the proposed class.
Nelnet provides education services. The Company offers educational
services in loan servicing, payment processing, education planning,
and asset management. Nelnet Servicing operates in the United
States and Canada.
A copy of the Court's order dated Jan. 30, 2023 is available from
PacerMonitor.com at https://bit.ly/3IgXFft at no extra charge.[CC]
NFL PLAYER: Faces Alford Suit Over Wrongful Denial of Benefits
--------------------------------------------------------------
JASON ALFORD, DANIEL LOPER, WILLIS MCGAHEE, MICHAEL MCKENZIE,
JAMIZE OLAWALE, ALEX PARSONS, ERIC SMITH, CHARLES SIMS, JOEY
THOMAS, and LANCE ZENO, individually and on behalf of all others
similarly situated, Plaintiffs v. THE NFL PLAYER DISABILITY &
SURVIVOR BENEFIT PLAN; THE NFL PLAYER DISABILITY & NEUROCOGNITIVE
BENEFIT PLAN; THE BERT BELL/PETE ROZELLE NFL PLAYER RETIREMENT
PLAN; THE DISABILITY BOARD OF THE NFL PLAYER DISABILITY &
NEUROCOGNITIVE BENEFIT PLAN; DENNIS CURRAN; JACOB FRANK; BELINDA
LERNER; SAM MCCULLUM; ROBERT SMITH; JEFF VAN NOTE; and ROGER
GOODELL, Defendants, Case No. 1:23-cv-00358-BPG (D. Md., Feb. 9,
2023) is a class action under the Employee Retirement Income
Security Act seeking redress for the Defendants' wrongful denial of
benefits, the denial of statutorily mandated full and fair review
of benefit denials, violations of plan terms or governing
regulations, and breaches of fiduciary duty.
The Plaintiffs, who are former National Football League football
players, bring this action against the NFL Player Disability &
Survivor Benefit Plan and NFL Player Disability & Neurocognitive
Benefit Plan and its fiduciaries, including, but not limited to,
the Plan's Administrator to recover benefits due under the terms of
the Plan, to enforce their rights under the terms of the Plan, to
clarify their rights under the terms of the Plan, to enjoin acts
and practices that violate the terms of the Plan or ERISA, and,
separately "to obtain other appropriate equitable relief"
including, but not limited to, removal of the fiduciary,
restitution, equitable surcharge, and other relief in connection
with Defendants' repeated, willful, and systematic pattern of
breaching their fiduciary duty of loyalty through affirmative
misrepresentations, hostile and adversarial positions, bad faith,
active concealment, and by otherwise failing to discharge their
duties solely and exclusively in the interest of disabled retired
NFL Players and their beneficiaries.
The complaint alleges that the Defendants wrongfully denied
benefits and abused their discretion when they unreasonably failed
to consider that Players may be Total and Permanent disabled from
the cumulative impact and combined effects of all of a claimant's
impairments, rather than compartmentalizing and considering each
impairment or type of impairment only "in silo." The Defendants
have unreasonably denied benefits when they failed to exercise
their discretion by defaulting to their own biased physicians. They
have simply rubber-stamped the opinions of their retained, biased
physicians, says the suit.
The NFL Player Disability & Survivor Benefit Plan and NFL Player
Disability & Neurocognitive Benefits Plan are employee welfare
benefit plans.[BN]
The Plaintiffs are represented by:
Jason S. Rathod, Esq.
Nicholas A. Migliaccio, Esq.
MIGLIACCIO & RATHOD LLP
412 H Street, N.E.
Washington, DC 20002
Telephone: (202) 470-3520
Facsimile: (202) 800-2730
E-mail: jrathod@classlawdc.com
nmigliaccio@classlawdc.com
- and -
Christopher A. Seeger, Esq.
Diogenes P. Kekatos, Esq.
SEEGER WEISS LLP
55 Challenger Road, 6th Floor
Ridgefield Park, NJ 07660
Telephone: (973) 639-9100
E-mail: cseeger@seegerweiss.com
dkekatos@seegereiss.com
- and -
Bryan F. Aylstock, Esq.
Douglass A. Kreis, Esq.
D. Nicole Guntner, Esq.
AYLSTOCK, WITKIN, KREIS, & OVERHOLTZ, PLLC
17 E. Main Street, Suite 200
Pensacola, FL 32502
Telephone: (850) 202-1010
E-mail: BAylstock@awkolaw.com
DKreis@awkolaw.com
NGuntner@awkolaw.com
- and -
Samuel L. Katz, Esq.
Julia M. Damron, Esq.
ATHLAW LLP
8383 Wilshire Blvd., Suite 800
Beverly Hills, CA 90211
Telephone: (818) 454-3652
E-mail: samkatz@athlawllp.com
julia@athlawllp.com
- and -
Robert K. Scott, Esq.
Gerry H. Goldsholle, Esq.
ADVOCATE LAW GROUP P.C.
2330 Marinship Way, Suite 260
Sausalito, CA 94965
Telephone: (949) 753-4950
E-mail: bob@advocatelawgroup.com
gerry@advocatelawgroup.com
NJ NAWECH: Da Silva Sues Over Construction Workers' Unpaid Overtime
-------------------------------------------------------------------
The case, PAULO CESAR DA SILVA, on behalf of himself and all others
similarly situated, Plaintiff v. NJ NAWECH CONSTRUCTION SERVICES
LLC, AMARU SAVIO NAWECH ANKUASH, and VANHORST GENERAL CONTRACTORS,
LLC, Defendants, Case No. 2:23-cv-00097 (D.N.J., January 9, 2023)
arises from the Defendants' alleged violations of the Fair Labor
Standards Act.
The Plaintiff was employed by the Defendants as a construction
worker.
According to the complaint, the Defendants regularly scheduled the
Plaintiff and other similarly situated construction workers to work
more than 40 hours per week. However, the Defendants did not
compensate them for all hours they have worked. Despite regularly
working more than 40 hours per week, the Defendants did not pay
them overtime compensation at the rate of one and one-half times
their regular rates of pay for all hours worked in excess of 40 per
workweek. The Defendants allegedly failed to keep accurate and
sufficient time records. In addition, the Defendants failed to post
and/or keep posted a notice explaining the overtime pay rights,
says the suit.
The Plaintiff brings this complaint as a collective action, on
behalf of himself and all other similarly situated construction
workers, against the Defendants seeking to recover all unpaid wages
and overtime wages, liquidated damages, litigation costs and expert
fees, attorneys' fees, pre- and post-judgment interest, and other
relief as the Court deems necessary, just, and proper.
The Corporate Defendants operate a commercial construction and
general contracting business. [BN]
The Plaintiff is represented by:
David Harrison, Esq.
Julie Salwen, Esq.
HARRISON, HARRISON & ASSOCIATES, LTD.
110 State Highway 35, Suite 10
Red Bank, NJ 07701
Tel: (718) 799-9111
E-mail: dharrison@nynjemploymentlaw.com
OK FOODS: Coffey Appeals Summary Judgment Ruling to 8th Circuit
---------------------------------------------------------------
CLARISSA COFFEY is taking an appeal from a court order granting the
Defendant's motion for summary judgment in the lawsuit entitled
Clarissa Coffey, individually and on behalf of all others similarly
situated, Plaintiff, v. OK Foods, Inc., Defendant, Case No.
2:21-cv-02200-PKH, in the U.S. District Court for the Western
District of Arkansas.
The case arises from a breach of OK Foods' employee data. This
breach, which occurred in April 2020, allowed an unknown third
party to access employee data including names and Social Security
Numbers. An outside cybersecurity firm investigated the data
breach, and in April 2021, OK Foods notified current and former
employees whose personal information had been exposed. As of the
date of OK Foods' notice, no personal information had been misused
following the data breach. OK Foods provided affected employees
with a free, one-year Experian IdentityWorks membership. Ms. Coffey
is one of the affected former employees.
On June 2, 2021, Landon Johnson sued OK Foods in the Western
District of Oklahoma. The complaint asserted claims for negligence,
breach of implied contract, breach of confidence, invasion of
privacy, breach of fiduciary duty, and breach of the covenant of
good faith and fair dealing and included a class action allegation.
Ms. Coffey joined the case in an amended complaint filed July 29,
2021.
One day later, Mr. Johnson voluntarily dismissed his claims under
Federal Rule of Civil Procedure 41(a)(1)(A)(i). Six months later
and after briefing, the Oklahoma district court transferred the
case to the District Court of Western District of Arkansas under 28
U.S.C. Section 1404(a) because Mr. Johnson had been the only party
who was a citizen of Oklahoma and Ms. Coffey could not afford to
appear in Oklahoma.
After the transfer, the Court denied OK Foods' motion to dismiss
and compel arbitration. At that time, it concluded that genuine
issues of material fact existed as to the formation of the
arbitration agreement because OK Foods did not present the exact
materials Ms. Coffey saw while applying, and Ms. Coffey stated she
did not see the arbitration agreement. The Court bifurcated the
case, setting a first jury trial "to determine whether the parties
entered into a binding arbitration agreement."
Following additional time for discovery, which included the
depositions of Ms. Coffey and Gary Potts, director of Human
Resources at OK Foods, the Defendant moved for summary judgment on
the issue of whether a binding arbitration agreement exists. Ms.
Coffey argued that the parties lacked mutual agreement to contract
and the factual context showed OK Foods disclaimed forming a
contract.
On Jan. 6, 2023, the Court granted the Defendant's motion for
summary judgment through an Order entered by Judge P. K. Holmes
III. Judge Holmes opined that Ms. Coffey's arguments only provide
conjecture, speculation, or fantasy. Such arguments are
insufficient to defeat summary judgment. Ms. Coffey cannot point to
any record evidence that shows OK Foods forged her signature. Based
on the record evidence, specifically the undisputed evidence about
the SuccessFactors logs and electronic signatures, no reasonable
juror could conclude that OK Foods forged Ms. Coffey's signature.
And no reasonable juror could conclude that Ms. Coffey did not
electronically sign the arbitration agreement based on the same
undisputed evidence. Therefore, Judge Holmes concluded that the
parties signed a binding arbitration agreement. The case was,
therefore, dismissed without prejudice. Arbitration will resolve
the entire dispute, ruled the Court.
The appellate case is captioned Clarissa Coffey v. OK Foods, Case
No. 23-2244, in the United States Court of Appeals for the Eighth
Circuit, filed on February 7, 2023.
The briefing schedule in the Appellate Case states that:
-- Appellant Clarissa Coffey brief is due on March 20, 2023;
and
-- Appellee brief is due 30 days from the date the court issues
the Notice of Docket Activity filing the brief of appellant. [BN]
Plaintiff-Appellant CLARISSA COFFEY, individually and on behalf of
all others similarly situated, is represented by:
D. Colby Addison, Esq.
Tyler James Bean, Esq.
William B. Federman, Esq.
FEDERMAN & SHERWOOD
10205 N. Pennsylvania Avenue
Oklahoma City, OK 73120
Telephone: (405) 235-1560
- and -
M. Anderson Berry, Esq.
ARNOLD LAW FIRM
865 Howe Avenue
Sacramento, CA 95825
Telephone: (916) 777-7777
- and -
Philip Daniel Holland, Esq.
Scott E. Poynter, Esq.
POYNTER LAW GROUP
Suite 201
407 President Clinton Avenue
Little Rock, AR 72201
Telephone: (501) 812-3943
Defendant-Appellee OK FOODS, INC. is represented by:
Karl Jon Breyer, Esq.
KUTAK & ROCK
Suite 800, Two Pershing Square
2300 Main Street
Kansas City, MO 64108
Telephone: (816) 960-0090
- and -
Frederick H. Davis, Esq.
KUTAK & ROCK
Suite 2000
124 W. Capitol Avenue
Little Rock, AR 72201
Telephone: (501) 975-3000
- and -
Aaron Myers, Esq.
KUTAK & ROCK
Suite 1750, U.S. Bank Plaza South
220 S. Sixth Street
Minneapolis, MN 55402
Telephone: (612) 334-5000
PORTOLA PHARMACEUTICALS: Removal of Docket Entry Ordered in Hayden
------------------------------------------------------------------
In the case, PAUL HAYDEN, et al., Plaintiffs v. PORTOLA
PHARMACEUTICALS INC., et al., Defendants, Case No. 3:20-cv-00367-VC
(N.D. Cal.), Judge Vince Chhabria of the U.S. District Court for
the Northern District of California, San Francisco Division,
directs the Court Clerk to remove ECF No. 249 from the case
docket.
Lead Plaintiff Alameda County Employees' Retirement Association
filed the administrative motion to remove the document from the
docket.
A full-text copy of the Court's Feb. 3, 2023 Order is available at
https://tinyurl.com/2ttrm3fv from Leagle.com.
Nicole Lavallee -- nlavallee@bermantabacco.com -- Daniel E.
Barenbaum -- dbarenbaum@bermantabacco.com -- Jeffrey V. Rocha --
jrocha@bermantabacco.com -- BERMAN TABACCO, Francisco, CA, Counsel
for the Lead Plaintiff Alameda County Employees' Retirement
Association and Lead Counsel for the Class.
QUEST DIAGNOSTICS: Ager Sues Over Illegal Billing Practices
-----------------------------------------------------------
KELLY AGER, f/k/a KELLY WALL, on behalf of herself and all others
similarly situated, Plaintiff v. QUEST DIAGNOSTICS INCORPORATED, a
foreign for-profit corporation, MERIDIAN FINANCIAL SERVICES, INC. a
foreign for-profit corporation, and CREDIT CONTROL SERVICES, INC.
D/B/A CREDIT COLLECTION SERVICES, a foreign forprofit corporation,
Defendants, Case No. 8:23-cv-00285-SCB-AEP (M.D. Fla., Feb. 9,
2023) is a class action against the Defendants for damages
resulting from breach of contract and Defendants' violations of the
Florida Consumer Collection Practices Act and the Fair Debt
Collection Practices Act.
On July 1, 2021, Plaintiff had lab tests performed by Quest. While
Plaintiff's insurance covered most of the billed amount for Quest's
medical services, it did not cover Quest's services entirely.
Consequently, Plaintiff incurred a debt to Quest totaling $702.94.
On October 12, 2021, Plaintiff and Quest entered into a payment
plan for Plaintiff's consumer debt comprising of nine monthly
payments to be deducted automatically from Plaintiff's bank
account.
By asserting the right to and attempting to collect from Plaintiff
and the class the total balance of a debt that was part of a
payment plan, Quest claimed, attempted, or threatened to enforce a
debt when Quest knew that the debt was not legitimate, and asserted
the existence of a legal right when Quest knew that the right did
not exist. Specifically, after entering into payment plans with
consumers, the Defendant systematically stopped accepting payments
from those consumers -- who were current on their bills -- and sent
those consumers to collections, says the suit.
Quest Diagnostics is a conglomerate comprising clinical
laboratories that provide laboratory services to consumers across
the United States, Mexico, and Brazil.[BN]
The Plaintiff is represented by:
Jordan A. Shaw, Esq.
Kimberly A. Slaven-Hauth Esq.
Gabriel E. Morales, Esq.
ZEBERSKY PAYNE SHAW LEWENZ, LLP
110 SE 6th Street, Suite 2900
Fort Lauderdale, FL 33301
Telephone: (954) 989-6333
Facsimile: (954) 989-7781
E-mail: jshaw@zpllp.com
kslaven@zpllp.com
gmorales@zpllp.com
REGAL MEDICAL: Lindsey Sues Over Failure to Protect PII and PHI
---------------------------------------------------------------
Alisa Lindsey, an individual, and on behalf of classes of similarly
situated individuals v. REGAL MEDICAL GROUP, INC., a California
corporation, LAKESIDE MEDICAL ORGANIZATION, A MEDICAL GROUP, INC, a
California corporation, ADOC ACQUISITION CO., A MEDICAL GROUP, INC,
a California corporation, GREATER COVINA MEDICAL GROUP, INC., a
California corporation, and DOES 1 to 10, inclusive, Case No.
23STCV02958 (Cal. Super. Ct., Los Angeles Cty., Feb. 9, 2023), is
brought under the California Customer Records Act ("CCRA"),
Confidentiality of Medical Information Act ("CMIA"), California's
Unfair Competition Law ("UCL"), as a result of the Defendants
grossly negligent and reckless failure to use statutorily required
or reasonable, industry cybersecurity measures to protect putative
Class Members' Personal Identifying Information ("PII") and
Protected Health Information ("PHI").
On December 1, 2022 cyber criminals infiltrated and accessed the
inadequately protected computer systems of Defendants Regal Medical
Group, Inc., Lakeside Medical Organization, A Medical Group, Inc.,
ADOC Acquisition Co., A Medical Group, Inc., Greater Covina Medical
Group, Inc., a group of affiliated medical groups located in
California. The cyber criminals gained access to Regal's computer
systems with the apparent intention of stealing the protected PII
and PHI of individuals whose information was stored on Defendants'
computer systems (the "Data Breach"). Ultimately, the cyber
criminals succeeded in stealing the sensitive PII and PHI of
3,300,638 of those individuals ("Breach Victims" or "Class
Members").
In short, thanks to Defendants' gross negligence and failure to
adequately protect the Breach Victims' PII and PHI, cyber criminals
were able to steal everything they could possibly need to commit
nearly every conceivable form of identity theft and medical
identity theft and wreak havoc on the financial and personal lives
of millions of individuals.
The Defendants' misconduct--failing to timely implement adequate
and reasonable measures to ensure their computer systems and
Plaintiff's and Brach Victim's PII and PHI were protected, failing
to timely detect the breach, failing to take adequate steps to
prevent and stop the breach, failing to disclose the material facts
that they did not have adequate computer systems and security
practices to safeguard the PII and PHI, failing to honor their
repeated promises and representations to protect Plaintiff's and
Breach Victims' PII and PHI, and failing to provide timely and
adequate notice of the Data Breach--caused substantial harm and
injuries to Plaintiff and Breach Victims.
Now that their PII and PHI has been released into the criminal
cyber domains, the Plaintiff and all Breach Victims are at imminent
risk of identity theft and medical identity theft. This risk will
continue to exist for years to come, as Plaintiff and Breach
Victims must spend their time being extra vigilant, due to
Defendants' failures, to try to prevent being victimized for the
rest of their lives, says the complaint.
The Plaintiff provided her PII and PHI, as was required of her in
order to obtain the medical services she received from Regal.
The Defendants are a network of medical groups with hundreds of
healthcare providers locations throughout southern California.[BN]
The Plaintiff is represented by:
Marcus J. Bradley, Esq.
Kiley L. Grombacher, Esq.
Lirit A. King, Esq.
BRADLEY/GROMBACHER, LLP
31365 Oak Crest Drive, Suite 240
Westlake Village, CA 91361
Phone: (805) 270-7100
Facsimile: (805) 270-7589
Email: mbradley@bradleygrombacher.com
kgrombacher@bradleygrombacher.com
lking@bradleygrombacher.com
RENEOTECH INC: Nemirovsky Sues Over Deceptive Advertising
---------------------------------------------------------
Michael Nemirovsky, individually and on behalf of all others
similarly situated v. Reneotech, Inc., Case No. 151267/2023 (N.Y.
Sup. Ct., Feb. 8, 2023), is brought seeking to remedy the deceptive
and misleading business practices of the Defendant with respect to
the marketing and sales of Defendant's EcoRaider / EcoVenger
products throughout the state of New York and throughout the
country.
The EcoRaider / EcoVenger products include the following (the
"Products"): EcoRaider / EcoVenger Bed Bug Killer; EcoRaider /
EcoVenger Mosquito-Go; EcoRaider / EcoVenger Ant & Crawling Insect
Killer. The Defendant manufactures, sells, and distributes the
Products using a marketing and advertising campaign centered around
claims that appeal to health-conscious consumers, i.e., that its
Products are "Natural;" however, Defendant's advertising and
marketing campaign is false, deceptive, and misleading because the
Products contain non-natural, synthetic ingredients.
The Plaintiff and relied on the Defendant's misrepresentations that
the Products are "Natural" when purchasing the Products. The
Plaintiff and Class Members paid a premium for the Products based
upon their "Natural" representation. Given that the Plaintiff and
Class Members paid a premium for the Products based on the
Defendant's misrepresentations, the Plaintiff and Class Members
suffered an injury in the amount of the premium paid. The
Defendant's conduct violated and continues to violate, inter alia,
New York General Business Law. Defendant breached and continues to
breach its warranties regarding the Products.
Had the Defendant not made the false, misleading, and deceptive
representations and omissions, the Plaintiff and the Class Members
would not have been willing to pay the same amount for the Products
they purchased, and, consequently, Plaintiff and the Class Members
would not have been willing to purchase the Products, says the
complaint.
The Plaintiff purchased the Product during the Class Period.
The Defendant manufactures, markets, advertises, and distributes
the Products throughout the United States.[BN]
The Plaintiff is represented by:
Jason P. Sultzer, Esq.
Daniel Markowitz, Esq
THE SULTZER LAW GROUP
85 Civic Center Plaza, Suite 200
Poughkeepsie, NY 12601
Phone: (202) 470-3520
Fax: (888) 749-7747
Email: sultzerj@thesultzerlawgroup.com
markowitzd@thesultzerlawgroup.com
RING LLC: Cody Files Suit in C.D. California
--------------------------------------------
A class action lawsuit has been filed against Ring LLC, et al. The
case is styled as Annette Cody, individually and on behalf of all
others similarly situated v. Ring LLC, Does 1 through 25,
inclusive, Case No. 3:23-cv-00562 (C.D. Cal., Feb. 8, 2023).
The nature of suit is stated as Other Civil Rights.
Ring LLC -- https://ring.com/ -- is a home security and smart home
company owned by Amazon.[BN]
The Plaintiff is represented by:
Scott J. Ferrell, Esq.
PACIFIC TRIAL ATTORNEYS APC
4100 Newport Place Drive Suite 800
Newport Beach, CA 92660
Phone: (949) 706-6464
Fax: (949) 706-6469
Email: sferrell@pacifictrialattorneys.com
ROADSAFE TRAFFIC: Ramos Files Suit in Cal. Super. Ct.
-----------------------------------------------------
A class action lawsuit has been filed against Roadsafe Traffic
Systems, Inc., et al. case is styled as Adriana Magdalena Ramos, on
behalf of all others similarly situated v. Roadsafe Traffic
Systems, Inc., Does 1-20, inclusive, Case No.
34-2023-00334458-CU-OE-GDS (Cal. Super. Ct., Sacramento Cty., Feb.
8, 2023).
The case type is stated as "Other Employment - Civil Unlimited."
RoadSafe Traffic Systems -- https://www.roadsafetraffic.com/ -- is
a provider of comprehensive roadway safety services, including
traffic control, pavement marking, and specialty product
distribution, serving customers in public and private end markets
across over 50 branch locations throughout the U.S. Chicago,
Illinois.[BN]
The Plaintiff is represented by:
Jessica L. Campbell, Esq.
AEGIS LAW FIRM
9811 Irvine Center Dr., Ste. 100
Irvine, CA 92618
Phone: 949-379-6250
ROBERT HALF: Bid for Summary Judgment in Magallon FCRA Suit Denied
------------------------------------------------------------------
In the case, BONNIE MAGALLON, on behalf of herself and all others
similarly situated Plaintiff v. ROBERT HALF INTERNATIONAL INC., a
foreign corporation, Defendant, Case No. 6:13-cv-01478-AA (D. Or.),
Judge Ann Aiken of the U.S. District Court for the District of
Oregon, Eugene Division, denies the Defendant's Motion for Summary
Judgment.
In this consumer class action, class representative Magallon
alleges that the Defendant violated provisions of the Fair Credit
Reporting Act ("FCRA"), 15 U.S.C. Section 1681 et seq. The action
stems from the Defendant's use of a background report in deciding
to reject the Plaintiff's employment application. The Defendant, a
professional staffing service company, rejected the Plaintiff's
application allegedly based on her past misdemeanor conviction
without providing to her the "pre-adverse action notice" required
under FCRA.
The Plaintiff brought the action alleging that the Defendant used a
consumer report for employment purposes and took adverse action
against her, based in whole or in part on the consumer report,
without providing the required information under FCRA. Further, she
alleges that doing so constitutes a willful violation of FCRA.
As such, the Plaintiff contends that the Defendant is liable Under
15 U.S.C. Section 1681n, for its failure to comply with Section
1681b(b)(3)(A), in an amount equal to the sum of (1) damages not
less than $100 and not more than $1,000 per violation, (2) punitive
damages in an amount to be determined by the jury, (3) attorney
fees, and (4) costs.
Before the Court is the Defendant's Motion for Summary Judgment. It
asserts that (1) the Plaintiff lacks standing; (2) its policies
were compliant with FCRA, and that it adhered to them during the
class period; and (3) the Plaintiff's allegations do not support
her claim for statutory damages.
Initially, Judge Aiken opines that the Plaintiff satisfactorily
alleges particularized injury, where she asserts a personal injury
-- that the Defendant violated her right to information under FCRA
when it did not send her the pre-adverse action package, and that
the violation caused her loss of a job opportunity. She has also
alleged concrete injuries where Defendant took adverse employment
action without providing the information guaranteed by Section
1681b(b)(3)(A) and thus was deprived of the opportunity to correct
the accuracy or completeness of her consumer report. And, her
allegations, declarations, and affidavits establish the other
necessary elements of standing: that her injury is fairly traceable
to Defendant's conduct and likely to be redressed by a favorable
judicial decision.
Next, Judge Aiken holds that the Plaintiff's claim is not absent of
evidence from which a reasonable factfinder could infer that the
Defendant took adverse action before sending the required
information. She finds that she cannot conclude that the
Plaintiff's claim is "absent" of evidence, and a reasonable
factfinder could find that the "not placeable" determination is a
final decision and therefore an adverse action within the meaning
of the FCRA.
Lastly, Judge Aiken rules that the Plaintiff presented evidence
that the Defendant's employee testified that she was unaware of
whether the Defendant's policies required her to send the candidate
a copy of the background report and that her training did not
involve sending letters regarding the results of background checks.
Another employee testified that she supervises other employees who
handle the pre-adverse notice process and that she was unaware
whether Defendant's policies required employees to send applicants
a pre-adverse action letter after legal department reviews their
background check results. Accordingly, the Plaintiff's claim is not
absent of evidence and therefore denies the motion on this issue.
For these reasons, Judge Aiken denies the Defendant's Motion for
Summary Judgment.
A full-text copy of the Court's Feb. 7, 2023 Opinion & Order is
available at https://tinyurl.com/2p9c5ber from Leagle.com.
ROLL & HILL: Rodriguez Files ADA Suit in E.D. New York
------------------------------------------------------
A class action lawsuit has been filed against Roll & Hill, LLC. The
case is styled as Daniel Rodriguez, on behalf of himself and all
others similarly situated v. Roll & Hill, LLC, Case No.
1:23-cv-00903 (E.D.N.Y., Feb. 6, 2023).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Roll & Hill -- https://www.rollandhill.com/ -- is a design-minded
furniture and lighting company based in New York.[BN]
The Plaintiff is represented by:
Mark Rozenberg, Esq.
STEIN SAKS, PLLC
One University Plaza, Ste. 620
Hackensack, NJ 07601
Phone: (201) 282-6500
Email: mrozenberg@steinsakslegal.com
S.C. JOHNSON: Court Narrows Claims in 3rd Amended Rosenberg Suit
----------------------------------------------------------------
In the case, OWEN ROSENBERG, CARRIE McDOUGLE, CHRIS LEMKE, and
ANGELA MILLER, Plaintiffs v. S.C. JOHNSON & SON, INC., Defendant,
Case No. 20-CV-869-JPS (E.D. Wis.), Judge J.P. Stadtmueller of the
U.S. District Court for the Eastern District of Wisconsin grants in
part and denies in part the Defendant's Motion to Dismiss the Third
Amended Complaint.
On June 8, 2020, Rosenberg filed the lawsuit, pleading class
allegations based on labeling claims of non-toxicity on Windex
products. On Sept. 28, 2020, the Defendant filed a motion to
dismiss the complaint. On Oct. 19, 2020, Rosenberg filed an amended
complaint, which added Plaintiffs Carrie McDougle, Chris Lemke, and
Angela Miller.
The Plaintiffs are three individuals who bought certain Windex
"Non-Toxic Formula" products, believing such purchases would "avoid
harm caused by harsh chemicals." The products in question are
Windex Original Glass Cleaner, Windex Multi-Surface Cleaner, Windex
Vinegar Cleaner, and Windex Crystal Rain (Ammonia-Free). Each
Product boasts a "non-toxic formula."
On Nov. 16, 2020, the Defendant filed a motion to dismiss the
amended complaint. On Aug. 2, 2021, the Court denied the motion to
dismiss the complaint as moot, granted in part the motion to
dismiss the amended complaint, and afforded the Plaintiffs leave to
amend the amended complaint. On Aug. 23, 2021, the Plaintiffs filed
their second amended complaint.
On Sept. 7, 2021, the Defendant filed a motion to dismiss the
second amended complaint and a motion to stay. The motion to stay
was premised on a parallel class action that had been filed in
California state court on July 15, 2020, following the commencement
of this action: Clark v. S.C. Johnson & Son, Inc., No. RG20067897
(Cal. Super. Ct.) (the "Clark Action").
On Oct. 18, 2021, the Court granted the motion to stay. It noted
that the crux of the Plaintiffs' opposition to the motion for a
stay was that the Clark settlement is unfair and constituted a
"reverse auction." However, it explained that another party had
raised this concern before the California state court, the Clark
Action received preliminary approval, and that "the issue of
whether to approve a potentially reverse-auctioned settlement was
not before this Court; that is something for the California state
court to determine. If the California state court is satisfied with
the settlement, then the class claims raised in this litigation may
well be foreclosed.
On Feb. 28, 2022, the Court lifted the stay following the parties'
notification that the California state court had granted final
approval of a class settlement in the Clark Action. Thereafter, in
accordance with the Court's protocols (as it presumably followed a
meet-and-confer), the Plaintiffs filed a third amended complaint.
On May 13, 2022, the Defendant filed a motion to dismiss the third
amended complaint, or in the alternative to strike the class
allegations, on the basis of the settlement in the Clark Action.
The Plaintiffs contend that in spite of the labeling, the Products
contain, in varying combinations, ingredients that are harmful to
humans, animals, and/or the environment. They list which of the
Products contain which ingredients and explain the harm that they
attribute to each listed ingredient.
According to them, the marketing of the Products as 'non-toxic' has
a material bearing on price and consumer acceptance of the Products
because consumers are willing to pay more for such Products; in
other words, as a result of the false and misleading labeling, the
Products are sold at a premium price. The Plaintiffs allege that
had they known the truth, they would not have bought the Products
or would have paid less for them.
The Plaintiffs plead claims (1) under the Wisconsin Deceptive Trade
Practices Act ("DTPA"), which they assert applies to a Class of
purchasers of the Defendant's products bearing the Non-Toxic label,
both within and outside of Wisconsin, who have been harmed as a
result, given that its Non-Toxic marketing program was devised,
implemented and directed from its headquarters in Racine,
Wisconsin, and (2) for unjust enrichment.
The plaintiffs in the Clark Action also alleged that the non-toxic
label on the Products is false and misleading because the Products
contain ingredients harmful to people, pets, and the environment,
and that consumers paid a premium due to the non-toxic labels.
The settlement class in the Clark Action was defined as "All
persons that, during the Class Period, both resided in the United
States and purchased in the United States any Product for personal
and household use and not for resale. The class period is the time
period from the date when SC Johnson initially labeled the Products
as non-toxic to July 9, 2021. The Clark Action settlement was
preliminarily approved on July 9, 2021, and the Clark court granted
final approval and certified the settlement class on Feb. 14,
2022.
The release in the Clark Action binds the entire class, except for
"twelve people who have opted out of the class and will not be
bound by the terms of the Settlement Agreement." The three
remaining named Plaintiffs in the instant action are among the
twelve people who opted out of the Clark Action settlement.
The Defendant moves to dismiss the third amended complaint or, in
the alternative to strike the class allegations, on multiple
grounds. Those grounds can be boiled down to assertions that (1)
the Court lacks jurisdiction to hear the Plaintiffs' collateral
attack of the Clark Action settlement and, even if it had
jurisdiction, a collateral attack is not viable; (2) the putative
class claims should be dismissed because the Plaintiffs
relinquished their ability to proceed as a class by opting out of
the Clark Action settlement; (3) the putative class claims should
be dismissed because the putative class members are barred from
pursuing their claims either due to res judicata or because they
released their claims in the Clark Action settlement; (4) the
Plaintiffs cannot satisfy the requirements of Federal Rule of Civil
Procedure 23; and (5) the Plaintiffs' individual claims are not
adequately pleaded.
Judge Stadtmueller concludes that those who opted out of the Clark
Action settlement, as well as those who purchased the Products
following July 9, 2021, may still be able to proceed in some
fashion, either individually or as a class. He will not make any
determinations on these questions at the motion to dismiss stage,
because discovery has not been completed, and the issue of class
certification is not now before the Court.
At this juncture, Judge Stadtmueller has definitively concluded
that the Clark Action class members who did not opt out of the
Clark Action are precluded from participating in this action and
are not putative class members as to any purchases that took place
prior to July 9, 2021. This determination is based upon his
conclusion that the Clark Action settlement has preclusive effect
and meets the federal procedural due process requirements, such
that any collateral attack must be denied. But that is all the
Court conclusively decides today, until discovery and a motion for
class certification are completed.
For these reasons, Judge Stadtmueller grants in part and denies in
part the Defendant's motion to dismiss in accordance with the terms
of his Order. The Plaintiffs must file their amended complaint in
line with the Court's directives within 14 days of his Order. The
Court will enter its Pretrial Order immediately following entry of
the Order. The parties are expected to carefully review the Court's
protocols therein, and should note that extensions of time will not
be looked upon favorably.
Judge Stadtmueller adopts the Plaintiffs' notice of voluntary
dismissal of Plaintiff Owen Rosenberg; dismisses Rosenberg's claims
against the Defendant without prejudice; and dismisses Rosenberg
from the action. He dismisses the Plaintiffs' unjust enrichment
claim with prejudice.
A full-text copy of the Court's Feb. 7, 2023 Order is available at
https://tinyurl.com/2ncujwxh from Leagle.com.
SACRAMENTO BEHAVIORAL: Tejeda Files Suit in Cal. Super. Ct.
-----------------------------------------------------------
A class action lawsuit has been filed against Sacramento Behavioral
Healthcare Hospital LLC, et al. The case is styled as Jonathan
Tejeda, an individual, on behalf of himself and on behalf of all
persons similarly situated v. Sacramento Behavioral Healthcare
Hospital LLC, Does 1-50, Case No. 34-2023-00334489-CU-OE-GDS (Cal.
Super. Ct., Sacramento Cty., Feb. 9, 2023).
The case type is stated as "Other Employment - Civil Unlimited."
Sacramento Behavioral Healthcare Hospital --
https://norcalbehavioral.com/sacramento-location/ -- offers a wide
array of individualized mental health treatment services for teens,
adults, and senior adults.[BN]
The Plaintiff is represented by:
Nicholas J. De Blouw, Esq.
BLUMENTHAL NORDREHAUG BHOWMIK DE BLOUW
2255 Calle Clara
La Jolla, CA 92037-3107
Phone: 858-952-0354
Fax: 858-551-1232
Email: DeBlouw@bamlawca.com
SAFE CATCH INC: Donet Files ADA Suit in S.D. New York
-----------------------------------------------------
A class action lawsuit has been filed against Safe Catch, Inc. The
case is styled as Maricela Donet, individually, and on behalf of
all others similarly situated v. Safe Catch, Inc., Case No.
1:23-cv-01104 (S.D.N.Y., Feb. 9, 2023).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Safe Catch -- https://safecatch.com/ -- is a brand with the
technology to assure purity in every fish.[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
SANTA CLARA UNIVERSITY: Thorne Files ADA Suit in S.D. New York
--------------------------------------------------------------
A class action lawsuit has been filed against Santa Clara
University. The case is styled as Braulio Thorne, for himself and
on behalf of all other persons similarly situated v. Santa Clara
University, Case No. 1:23-cv-01133 (S.D.N.Y., Feb. 9, 2023).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Santa Clara University -- https://www.scu.edu/ -- is a private
Jesuit university in Santa Clara, California.[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
Email: nyjg@aol.com
michael@gottlieb.legal
SEA NEW YORK: Hwang Files ADA Suit in E.D. New York
---------------------------------------------------
A class action lawsuit has been filed against Sea New York, Inc.
The case is styled as Jenny Hwang, on behalf of herself and all
others similarly situated v. Sea New York, Inc., Case No.
1:23-cv-01040 (E.D.N.Y., Feb. 8, 2023).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Sea -- https://sea-ny.com/ -- is a chic fashion label created by
childhood friends Sean Monahan and Monica Paolini.[BN]
The Plaintiff is represented by:
Mars Khaimov, Esq.
14749 71st Ave.
Flushing, NY 11367
Phone: (917) 915-7415
Email: mars@khaimovlaw.com
SEATTLE UNIVERSITY: Thorne Files ADA Suit in S.D. New York
----------------------------------------------------------
A class action lawsuit has been filed against Seattle University.
The case is styled as Braulio Thorne, for himself and on behalf of
all other persons similarly situated v. Seattle University, Case
No. 1:23-cv-01055 (S.D.N.Y., Feb. 7, 2023).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Seattle University -- https://www.seattleu.edu/ -- is a modern,
progressive, and global Jesuit Catholic university in the heart of
tech-heavy Seattle's eclectic Capitol Hill neighborhood.[BN]
The Plaintiff is represented by:
Michael A. LaBollita, Esq.
GOTTLIEB & ASSOCIATES
150 E. 18 St., Suite PHR
New York, NY 10003
Phone: (212) 228-9795
Email: michael@gottlieb.legal
SET AND SERVICE RESOURCES: Parvin Files Suit in Cal. Super. Ct.
---------------------------------------------------------------
A class action lawsuit has been filed against Set and Service
Resources, LLC. The case is styled as Brenda Parvin, an individual
on behalf of herself and all others similarly situated v. Set and
Service Resources, LLC, Case No. S-CV-0049910 (Cal. Super. Ct.,
Placer Cty., Feb. 9, 2023).
The case type is stated as "Other Employment."
Set and Service Resources, LLC -- https://www.sasrlink.com/ --
provides employment services. The Company offers temporary labor
and permanent placement, interviewing, background check, drug
screening, and workers' compensation services.[BN]
SKECHERS USA: Garcia Sues to Recover Delinquent Wage Payments
-------------------------------------------------------------
Ronaldo Garcia, individually and on behalf of others similarly
situated v. SKECHERS USA RETAIL, LLC, Case No. 1:23-cv-01055
(E.D.N.Y., Feb. 8, 2023), is brought pursuant to New York Labor Law
("NYLL") to recover damages for delinquent wage payments made to
workers who qualify as manual laborers and who were employed at any
time by the Defendant.
The Defendant has compensated all its employees on a bi-weekly
(every other week) basis, regardless of whether said employees
qualified as manual laborers under the NYLL. The Defendant has at
no time during the Relevant Period been authorized by the New York
State Department of Labor Commissioner to compensate its employees
who qualify as manual laborers on a bi-weekly basis, in
contravention of NYLL which requires that without explicit
authorization from the Commissioner, such workers must be
compensated not less frequently than on a weekly basis, says the
complaint.
The Plaintiff was employed by the Defendant as a stockroom
associate.
SKECHERS USA RETAIL, LLC is a foreign company organized and
existing under the laws of the State of California.[BN]
The Plaintiff is represented by:
Brett R. Cohen, Esq.
Jeffrey K. Brown, Esq.
Michael A. Tompkins, Esq.
LEEDS BROWN LAW, P.C.
One Old Country Road, Suite 347
Carle Place, NY 11514
Phone: (516) 873-9550
SN SERVICING: Monaco Suit Removed to D. New Jersey
--------------------------------------------------
The case styled as Robert Monaco, on behalf of himself and all
others similarly situated v. SN Servicing Corporation, John Does
1-25, Case No. BUR L 1750 22 was removed from the Superior Court of
New Jersey, Burlington County, to the U.S. District Court for the
District of New Jersey on Feb. 8, 2023.
The District Court Clerk assigned Case No. 1:23-cv-00724-CPO-MJS to
the proceeding.
The lawsuit is brought over alleged violation of the Fair Debt
Collection Practices Act.
SN Servicing Corporation (SNSC) -- https://www.snsc.com/ --
delivers quick and flexible mortgage loan servicing solutions for
owners of loans and real estate.[BN]
The Plaintiff is represented by:
Joseph K. Jones, Esq.
Jones, Wolf & Kapasi, LLC
375 Passaic Avenue, Suite 100
Fairfield, NJ 07004
Phone: (973) 227-5900
Fax: (973) 244-0019
Email: jkj@legaljones.com
The Defendants are represented by:
Ryan L. Di Clemente, Esq.
SAUL EWING ARNSTEIN & LEHR LLP
650 College Road East, Suite 4000
Princeton, NJ 08540
Phone: (609) 452-5057
Fax: (609) 452-6117
Email: ryan.diclemente@saul.com
SOHI FELLOW BARBER: Hwang Files ADA Suit in E.D. New York
---------------------------------------------------------
A class action lawsuit has been filed against Sohi Fellow Barber,
Inc. The case is styled as Jenny Hwang, on behalf of herself and
all others similarly situated v. Sohi Fellow Barber, Inc., Case No.
1:23-cv-01039 (E.D.N.Y., Feb. 8, 2023).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Fellow Barber -- https://www.fellowbarber.com/ -- is a New
York-born chain of elevated barbershops.[BN]
The Plaintiff is represented by:
Mars Khaimov, Esq.
14749 71st Ave.
Flushing, NY 11367
Phone: (917) 915-7415
Email: mars@khaimovlaw.com
STRATFORD UNIVERSITY: Coleman Sues Over Failure to Safeguard PII
----------------------------------------------------------------
Desiree Coleman, individually and on behalf all other similarly
situated v. STRATFORD UNIVERSITY, INC., Case No. 1:23-cv-00190
(E.D. Va., Feb. 10, 2023), is brought arising from the Defendant's
failure to properly secure and safeguard the unencrypted and
unredacted data of at least 78,692 current and former students,
admission applicants, and employees of Stratford University.
Prior to and through August 26, 2022, Defendant obtained
Plaintiff's and Class Members' personally identifiable information
("PII") and stored that PII, unencrypted, in an Internet-accessible
environment on Defendant's network. Stratford University failed to
provide timely, accurate and adequate notice to Plaintiffs and
Class Members, who are past and present students, employees, and
applicants to Stratford University. Plaintiffs' and Class Members'
knowledge about the PII lost, as well as precisely what type of
information was unencrypted and in the possession of unknown third
parties, was unreasonably delayed by Stratford University's failure
to warn impacted persons for approximately five-months after first
learning of the data breach.
The Defendant failed to implement and maintain reasonable data
security measures, such as standard encryption or redaction of
sensitive data, leading to the theft of the sensitive personal
information of Plaintiff and other current and former students,
admission applicants, employees of Stratford University, and others
who entrusted Defendant with their most sensitive data. Plaintiff
seeks damages on behalf of herself and Class Members, as well as
equitable relief, including, without limitation, injunctive relief
designed to protect the sensitive information of Plaintiff and
Class Members, says the complaint.
The Plaintiff is a graduate of Stratford University.
Stratford University, Inc., a Virginia corporation, is a private
university based in Virginia.[BN]
The Plaintiff is represented by:
Lee A. Floyd, Esq.
Justin M. Sheldon, Esq.
BREIT BINIAZAN, PC
2100 East Cary Street, Suite 310
Richmond, VA 23223
Phone: (804) 351-904
Facsimile: (804) 351-9170
Email: Lee@bbtrial.com
Justin@bbtrial.com
- and -
Scott M. Perry, Esq.
BREIT BINIAZAN, P.C.
1010 N. Glebe Road, Suite 310
Arlington, VA 22201
Phone: (703) 291-6666
Facsimile: (703) 563-6692
Email: Scott@bbtrial.com
- and -
Terence R. Coates, Esq.
Justin C. Walker, Esq.
MARKOVITS, STOCK & DEMARCO, LLC
119 E. Court Street, Suite 530
Cincinnati, OH 45202
Phone: (513) 651-3700
Fax: (513) 665-0219
Email: tcoates@msdlegal.com
jwalker@msdlegal.com
SWIFT BEEF: Meza Wage-and-Hour Suit Removed to C.D. Cal.
--------------------------------------------------------
The case styled FRANCISCO J. MEZA, on behalf of himself and others
similarly situated, Plaintiff v. SWIFT BEEF COMPANY; and DOES 1 to
100, inclusive, Defendants, Case No. CVRI2300103, was removed from
the Superior Court of California for the County of Riverside to the
U.S. District Court for the Central District of California on Feb.
10, 2023.
The Clerk of Court for the Central District of California assigned
Case No. 5:23-cv-00236-SSS-SP to the proceeding.
The Plaintiff asserts, on behalf of himself and others allegedly
similarly situated, six causes of action under the California Labor
Code against Defendant for failure to: (1) pay minimum wage for all
hours worked; (2) permit meal periods; (3) permit rest periods; (4)
timely pay earned wages; (5) provide accurate wage statements; and
(6) timely pay all earned wages at separation of employment. He
also asserts a claim under the California Unfair Competition Law.
Swift Beef Company processes, prepares, packages and delivers meat
products.[BN]
The Defendant is represented by:
Michele Ballard Miller, Esq.
Ethan Chernin, Esq.
COZEN O'CONNOR
401 Wilshire Blvd., Suite 850
Santa Monica, CA 90401
Telephone: (310) 393-4000
Facsimile: (310) 394-4700
E-mail: mbmiller@cozen.com
echernin@cozen.com
- and -
Jonathon M. Watson, Esq.
SPENCER FANE LLP
1700 Lincoln Street, Suite 2000
Denver, CO 80203
Telephone: (303) 839-3800
Facsimile: (303) 839-3838
E-mail: jmwatson@spencerfane.com
SYNGENTA CROP: Hys Farms Antitrust Suit Transferred to M.D.N.C.
---------------------------------------------------------------
The class action styled as HYS FARMS, LLC, Plaintiff v. SYNGENTA
CROP PROTECTION AG; SYNGENTA CORPORATION; SYNGENTA CROP PROTECTION,
LLC; CORTEVA, INC.; BASF SE; BASF CORPORATION; BASF AGRICULTURAL
PRODUCTS GROUP; NUTRIEN AG SOLUTIONS, INC., HELENA
AGRI-ENTERPRISES, LLC; and DOE CO-CONSPIRATOR DISTRIBUTORS AND
RETAILERS 1-200, Defendants, Case No. 1:22-cv-02229, was
transferred from the United States District Court for the Southern
District of Indiana to the United States District Court for the
Middle District of North Carolina on February 8, 2023.
The Clerk of Court for the Middle District of North Carolina
assigned Case No. 1:23-cv-00123-TDS-JEP to the proceeding.
The Plaintiff in the complaint alleges that farmers in the United
States have paid and continue to pay inflated prices for crop
protection products due to the unlawful conduct of the Defendants.
For many years, the Manufacturer Defendants unfairly impeded
competitors and artificially inflated the prices that United States
farmers pay for certain crop protection products. The Manufacturer
Defendants developed what they called "loyalty" or "rebate"
programs with cooperating Co-conspirator Distributors and Retailers
in violation of the Sherman Act and the Clayton Act.
Syngenta Crop Protection AG was founded in 1758. The company's line
of business includes providing commercial physical and biological
research and development.[BN]
The Plaintiff is represented by:
Scott D. Gilchrist, Esq.
COHEN & MALAD LLP
One Indiana Square, Suite 1400
INDIANAPOLIS, IN 46204
Telephone: (317) 636-6481
Facsimile: (317) 636-2593
E-mail: sgilchrist@cohenandmalad.com
SYNGENTA CROP: Scott Day Antitrust Suit Transferred to M.D.N.C.
---------------------------------------------------------------
The class action styled as SCOTT DAY FARMS, Plaintiff v. SYNGENTA
CROP PROTECTION AG; SYNGENTA CORPORATION; SYNGENTA CROP PROTECTION,
LLC; CORTEVA, INC.; BASF SE; BASF CORPORATION; BASF AGRICULTURAL
PRODUCTS GROUP; NUTRIEN AG SOLUTIONS, INC., HELENA
AGRI-ENTERPRISES, LLC; and DOE CO-CONSPIRATOR DISTRIBUTORS AND
RETAILERS 1-200, Defendants, Case No. 1:22-cv-02230, was
transferred from the United States District Court for the Southern
District of Indiana to the United States District Court for the
Middle District of North Carolina on February 8, 2023.
The Clerk of Court for the Middle District of North Carolina
assigned Case No. 1:23-cv-00127-TDS-JEP to the proceeding.
The Plaintiff in the complaint alleges that farmers in the United
States have paid and continue to pay inflated prices for crop
protection products due to the unlawful conduct of the Defendants.
For many years, the Manufacturer Defendants unfairly impeded
competitors and artificially inflated the prices that United States
farmers pay for certain crop protection products. The Manufacturer
Defendants developed what they called "loyalty" or "rebate"
programs with cooperating Co-conspirator Distributors and Retailers
in violation of the Sherman Act and the Clayton Act.
Syngenta Crop Protection AG was founded in 1758. The company's line
of business includes providing commercial physical and biological
research and development.[BN]
The Plaintiff is represented by:
Larry Stephen McDevitt, Esq.
VAN WINKLE BUCK WALL STARNES & DAVIS, P.A.
POB 7376
Asheville, NC 28802
Telephone: (828) 258-2991
Facsimile: (828) 257-2767
E-mail: lmcdevitt@vwlawfirm.com
- and -
Scott D. Gilchrist, Esq.
COHEN & MALAD LLP
One Indiana Square, Suite 1400
INDIANAPOLIS, IN 46204
Telephone: (317) 636-6481
Facsimile: (317) 636-2593
E-mail: sgilchrist@cohenandmalad.com
TEIJIN AUTOMOTIVE: Hummel Sues Over Failure to Safeguard PII
------------------------------------------------------------
Jennifer Hummel, on behalf of herself and all others similarly
situated v. TEIJIN AUTOMOTIVE TECHNOLOGIES, INC., Case No.
2:23-cv-10341-GAD-JJCG (E.D. Mich., Feb. 8, 2023), is brought
against the Defendant for its failure to properly secure and
safeguard personal identifiable information of the Defendant's
current and former employees and others, including name, address,
date of birth, full Social Security number, health insurance policy
information (including Subscriber Number and designated insurer)
and in a limited number of cases, banking information.
Prior to December 1, 2022, the Defendant obtained the PII of the
Plaintiff and Class Members, including by collecting it directly
from the Plaintiff and Class Members. The Defendant stored the PII
of the Plaintiff and Class Members, unencrypted, in an
Internet-accessible environment on Defendant's network.
On December 1, Defendant learned of a data breach on its network
that occurred on or around December 1, 2022 (the "Data Breach").
Defendant determined that, during the Data Breach, an unknown actor
acquired the PII of Plaintiff and Class Members. On December 13,
2022, Defendant began notifying Plaintiff and Class Members of the
Data Breach. On December 16, 2022, reports began surfacing on the
Internet that Defendant had been the subject of a ransomware attack
using the "BlackCat/ALPHV" ransomware variant and that information
taken during that attack had been listed on the dark web on
December 9, 2022.
By obtaining, collecting, using, and deriving a benefit from the
PII of Plaintiff and Class Members, Defendant assumed legal and
equitable duties to those individuals to protect and safeguard that
information from unauthorized access and intrusion. The Defendant
admits that the unencrypted PII that may have been accessed and/or
acquired by an unauthorized actor included name, address, date of
birth, full Social Security number, health insurance policy
information (including Subscriber Number and designated insurer)
and in a limited number of cases, banking information.
The PII was compromised due to Defendant's negligent and/or
careless acts and omissions and the failure to protect the PII of
Plaintiff and Class Members. The Defendant has also purposefully
maintained secret the specific vulnerabilities and root causes of
the breach and has not informed Plaintiff and Class Members of that
information. As a result of this delayed response, Plaintiff and
Class Members had no idea their PII had been compromised, and that
they were, and continue to be, at significant risk of identity
theft and various other forms of personal, social, and financial
harm, including the sharing and detrimental use of their sensitive
information. The risk will remain for their respective lifetimes,
says the complaint.
The Plaintiff worked for the Defendant at the time of the Data
Breach.
The Defendant's is a "manufacturer of highly- engineered products
for dynamic market segments, including automotive, heavy truck,
marine and recreational vehicles."[BN]
The Plaintiff is represented by:
Michael N. Hanna, Esq.
MORGAN & MORGAN, P.A.
2000 Town Center, Suite 1900
Southfield, MI 48075
Phone: (313) 739-1950
Email: mhanna@forthepeople.com
- and -
Ryan D. Maxey, Esq.
MORGAN & MORGAN COMPLEX BUSINESS DIVISION
201 N. Franklin Street, 7th Floor
Tampa, FL 33602
Phone: (813) 223-5505
Email: rmaxey@ForThePeople.com
THRIVE CAUSEMETICS: Blanco Suit Removed to S.D. Fla.
----------------------------------------------------
The case styled MARIBEL BLANCO, individually and on behalf of all
others similarly situated, Plaintiff v. THRIVE CAUSEMETICS, INC.,
Defendant, Case No. CACE-22-017854, was removed from the Florida
Seventeenth Judicial Circuit Court in and for Broward County to the
United States District Court for the Southern District of Florida
on Feb. 11, 2023.
The Clerk of Court for the Southern District of Florida assigned
Case No. 0:23-cv-60271 to the proceeding.
The Plaintiff's single-count complaint seeks relief from Defendant,
on behalf of herself and a putative class of similarly-situated
persons, for allegedly making or causing to be made multiple
unlawful "telephonic sales calls" without the "prior express
written consent" of Plaintiff and the putative class members,
purportedly violating the Florida Telephone Solicitation Act.
Thrive Causemetics, Inc. is a cosmetics company.[BN]
The Defendant is represented by:
Josh A. Migdal, Esq.
Yaniv Adar, Esq.
MARK MIGDAL & HAYDEN
80 S.W. 8th Street, Suite 1999
Miami, FL 33130
Telephone: (305) 374-0440
E-mail: josh@markmigdal.com
yaniv@markmigdal.com
TIC INTERNATIONAL: Drew Suit Removed to S.D Indiana
---------------------------------------------------
The case styled as Brandon Drew, Jeremy Fater, individually, and on
behalf of a class similarly siuated persons v. TIC International
Corporation, Case No. 49D01-2301-CT-000583 was removed from the
Marion County Superior Court 1, to the U.S. District Court for the
Southern District of Indiana on Feb. 8, 2023.
The District Court Clerk assigned Case No. 1:23-cv-00253-RLY-MPB to
the proceeding.
The nature of suit is stated as Other Contract.
TIC International Corporation -- https://www.tici.com/ -- provides
consulting, actuarial and administrative services to those
responsible for employee benefits programs.[BN]
The Plaintiff is represented by:
Amina Thomas, Esq.
Lynn A. Toops, Esq.
COHEN & MALAD LLP
One Indiana Square, Suite 1400
Indianapolis, IN 46204
Phone: (317) 636-6481
Fax: (317) 636-6481
Email: athomas@cohenandmalad.com
ltoops@cohenandmalad.com
The Defendant is represented by:
Scott B. Cockrum, Esq.
LEWIS, BRISBOIS, BISGAARD & SMITH LLP
2211 Main Street, Suite 3-2A
Highland, IN 46322
Phone: (219) 440-0602
Fax: (219) 440-0601
Email: Scott.Cockrum@lewisbrisbois.com
TK&K SERVICES: Palma Files Suit in Cal. Super. Ct.
--------------------------------------------------
A class action lawsuit has been filed against TK&K SERVICES, L.L.C.
case is styled as Josue Palma, as an individual on behalf of
himself and on behalf of all others similarly situated v. TK&K
SERVICES, L.L.C., Case No. BCV-23-100450 (Cal. Super. Ct., Kern
Cty., Feb. 10, 2023).
The case type is stated as "Other Employment - Civil Unlimited."
TK&K Services -- https://tkandkservices.com/ -- provide quality
control and quality assurance and inspection services for a broad
range of fuel system-related construction projects.[BN]
TOYOTA MOTOR: Court Enters Final Judgment in Ryan-Blaufuss Suit
---------------------------------------------------------------
Judge Josephine L. Staton of the U.S. District Court for the
Central District of California enters Final Judgment in the case,
KATHLEEN RYAN-BLAUFUSS, CATHLEEN MILLS and KHEK KUAN, on behalf of
themselves and all others similarly situated, Plaintiffs v. TOYOTA
MOTOR CORPORATION, TOYOTA MOTOR SALES, U.S.A., INC., and DOE
DEFENDANTS 1-10, Defendants. STEVEN KOSAREFF and LAURA KAKISH, on
behalf of themselves and all others similarly situated, Plaintiffs
v. TOYOTA MOTOR CORPORATION, TOYOTA MOTOR SALES USA, INC., and DOES
1-10, inclusive, Defendants, Case No. 8:18-CV-00201-JLS-KES (C.D.
Cal.).
On this date, the Court entered a Final Order Approving Class
Action Settlement. Hence, for the reasons stated in the Court's
Final Order Approving Class Action Settlement, judgment is entered
in accordance with the Final Order Approving Class Action
Settlement and the Action is dismissed with prejudice.
A copy of the Final Judgment will be filed in, and applies to, the
Action.
A full-text copy of the Court's Feb. 3, 2023 Final Judgment is
available at https://tinyurl.com/3zzue9z3 from Leagle.com.
UNAC INTERNATIONAL: Hernandez Sues Over Misleading Practices
------------------------------------------------------------
Bertha Hernandez, individually and on behalf of all others
similarly situated v. UNAC International, Inc., Case No.
151265/2023 (N.Y. Sup. Ct., New York Cty., Feb. 8, 2023), is
brought seeking to remedy the deceptive and misleading business
practices of the Defendant with respect to the marketing and sales
of Defendant's Cosmolive Aloe Vera Natural Soap product throughout
the state of New York and throughout the country (the "Product").
The Defendant manufactures, sells, and distributes the Product
using a marketing and advertising campaign centered around claims
that appeal to health-conscious consumers, i.e., that its Product
is "Natural;" however, the Defendant's advertising and marketing
campaign is false, deceptive, and misleading because the Products
contain non-natural, synthetic ingredients.
The Plaintiff relied on Defendant's misrepresentations that the
Product is "Natural" when purchasing the Product. The Plaintiff and
Class Members paid a premium for the Product based upon its
"Natural" representation. Given that the Plaintiff and Class
Members paid a premium for the Product based on the Defendant's
misrepresentations, the Plaintiff and Class Members suffered an
injury in the amount of the premium paid. The Defendant's conduct
violated and continues to violate, inter alia, New York General
Business Law, says the complaint.
The Plaintiff purchased the Product during the Class Period.
The Defendant manufactures, markets, advertises, and distributes
the Product throughout the United States.[BN]
The Plaintiff is represented by:
Jason P. Sultzer, Esq.
Daniel Markowitz, Esq
THE SULTZER LAW GROUP
85 Civic Center Plaza, Suite 200
Poughkeepsie, NY 12601
Phone: (202) 470-3520
Fax: (888) 749-7747
Email: sultzerj@thesultzerlawgroup.com
markowitzd@thesultzerlawgroup.com
- and -
Nick Suciu III, Esq.
MILBERG COLEMAN BRYSON PHILLIPS GROSSMAN, PLLC
6905 Telegraph Road, Suite 115
Bloomfield Hills, MI 48301
Phone: (313) 303-3472
Email: nsuciu@milberg.com
- and -
Gary Klinger, Esq.
MILBERG COLEMAN BRYSON PHILLIPS GROSSMAN, PLLC
221 West Monroe Street, Suite 2100
Chicago, IL 60606
Phone: (866) 252-0878
Email: gklinger@milberg.com
- and -
J. Hunter Bryson, Esq.
MILBERG COLEMAN BRYSON PHILLIPS GROSSMAN PLLC
405 E 50th Street
New York, NY 10022
Phone: (630) 796-0903
Email: hbryson@milberg.com
UNITED STATES: Botello Files Suit in Cal. Super. Ct.
----------------------------------------------------
A class action lawsuit has been filed against USA. case is styled
as Jeremiah Botello, Brent Chrisholm, Kyle Davis, Billie Endress,
Allen Hall, James Holden, Brandi King, Briton Limburg, Lauren
Williams, individually and on behalf of all others similarly
situated v. USA, Case No. BCV-23-100411 (U.S. Ct. of Fed. Cl., Feb.
8, 2023).
The nature of suit is stated as Military Pay - Back Pay.
The U.S. -- https://www.usa.gov/ -- is a country of 50 states
covering a vast swath of North America, with Alaska in the
northwest and Hawaii extending the nation's presence into the
Pacific Ocean.[BN]
The Plaintiff is represented by:
Dale F. Saran, Esq.
DALE F. SARAN, LLC
19744 W 116th Ter
Olathe, KS 66061
Phone: (480) 466-0369
Email: dalesaran@gmail.com
UNITED STATES: Dickerson Files Writ of Habeas Corpus
----------------------------------------------------
BILLY RAY DICKERSON filed a petition for writ of habeas corpus in
his prisoner civil rights case captioned DICKERSON v. USA, Case No.
1:23-cv-00126-TDS-LPA, (M.D.N.C., Feb. 10, 2023).
The case is assigned to Chief Judge Thomas D. Schroeder.
Petitioner Billy Ray Dickerson, who is currently incarcerated at
the Federal Correctional Institution in Petersburg, Virginia,
appears pro se.[BN]
Respondent USA is represented by:
Angela Hewlett Miller, Esq.
OFFICE OF U. S. ATTORNEY
101 South Edgeworth Street, Fourth Floor
Greensboro, NC 27401
Telephone: (336) 333-5351
E-mail: angela.miller@usdoj.gov
UNITED STATES: Reeves Found Not Interested Party in Braswell Suit
-----------------------------------------------------------------
Judge Victor J. Wolski of the U.S. Court of Federal Claims denies
Walter Reeves' request for notice as an interested party in the
case, BRENDA BRASWELL, et al., Plaintiffs v. THE UNITED STATES,
Defendant, Case No. 20-359C (Fed. Cl.).
On Jan. 30, 2023, the Clerk's office received from Mr. Reeves of
Atlanta, Georgia, a document entitled "petition to file motion,"
asking to be listed as an Interested Party in the case. Although
Mr. Reeves does not reference any rule, it appears that he is
attempting to invoke Rule 14 of the Rules of the United States
Court of Federal Claims (RCFC).
Rule 14 sets the manner and methods by which the Court "on motion
or on its own" may formally notify any person with the legal
capacity to sue or to be sued who is alleged to have an interest in
the subject matter of the suit. Motions for notice must state the
person's interest in the pending action.
Judge Wolski states that Mr. Reeves is obviously not a party to the
case, his document is construed as a request for the Court to
provide notice sua sponte. But according to the information in his
submission, Mr. Reeves is a mayoral candidate who is involved in
labor organizing. Seemingly, he hopes to encourage prison guards
and other federal workers to join the putative class action.
Nothing in the copious materials that Mr. Reeves has supplied
indicates that he is a potential intervenor, owns a property
interest at issue, or is at any risk of preclusion. He may be
personally concerned about the suit, but he is not legally
interested.
Therefore, Judge Wolski denies Mr. Reeves' request for notice as an
interested party. The Clerk is directed not to file Mr. Reeves's
document and to mail the Order to the address that he provided.
A full-text copy of the Court's Feb. 3, 2023 Order is available at
https://tinyurl.com/mrkjbkyw from Leagle.com.
UNIVERSAL TELEVISION: Bartley Sues Over Unlawful Labor Practices
----------------------------------------------------------------
PORTIA BARTLEY, on behalf of the State of California, and others
similarly situated and aggrieved, Plaintiff v. UNIVERSAL TELEVISION
LLC, a New York limited liability company; and DOES 1-100,
inclusive, Defendants, Case No. 23STCV03041 (Cal. Super., Los
Angeles Cty., Feb. 10, 2023) is a class action brought by the
Plaintiff pursuant to California's Private Attorney General Act to
recover civil penalties for Defendants' violations of the
California Labor Code.
The Plaintiff alleges that Defendants created a uniform set of
policies, practices and/or procedures concerning, inter alia,
hourly and overtime pay, time-keeping practices, meal and rest
periods, reimbursement of business expenses and other working
conditions that were distributed to, and/or applied to her and
other aggrieved employees, and asserts that Defendants uniformly
compensated and controlled her wages and other aggrieved employees
in a uniform manner.
The Plaintiff was employed by Defendants as a non-exempt Covid
testing coordinator, Covid testing assistant, Covid testing
consultant and/or similar title(s) from mid-September 2021 through
February 17, 2022.
Universal Television LLC owns, operates, and manages a television
production company.[BN]
The Plaintiff is represented by:
Michael R. Crosner, Esq.
Zachary M. Crosner, Esq.
Jamie Serb, Esq.
CROSNER LEGAL, PC
9440 Santa Monica Blvd. Suite 301
Beverly Hills, CA 90210
Telephone: (310) 496-5818
Facsimile: (310) 510-6429
UPROXX LLC: Kuzenski Sues Over Unlawful Disclosure of PII
---------------------------------------------------------
Franklin Kuzenski, on behalf of himself and all others similarly,
situated v. UPROXX LLC, Case No. 2:23-cv-00945 (C.D. Cal., Feb. 8,
2023), is brought in relation to Defendant disclosing Plaintiff's
personally identifiable information ("PII") without Plaintiff's
consent in violation of the the Video Privacy Protection Act (the
"VPPA").
The Defendant's website, uproxx.com (the "Website"), offers, inter
alia, a wide array of prerecorded video content. When the Plaintiff
watched videos on Defendant's Website, the Plaintiff's PII was
shared with Facebook without notifying the Plaintiff and without
his consent. The Defendant violated the VPPA each time it knowingly
disclosed the Plaintiff's PII to Facebook without consent.
When someone creates a Facebook account, a corresponding Facebook
ID ("FID") is also created. FIDs are uniquely associated with
particular Facebook accounts, such that an FID can be used to
identify and view the associated Facebook profile. When someone
becomes a subscriber to Defendant's Website, they receive recurring
emails from Defendant with links to articles and videos published
to the Website. Defendant monetizes its Website by knowingly
collecting and disclosing its subscribers' PII to Facebook, namely
data that personally identifies
subscribers and the videos they view.
The Defendant's Website uses a code analytics tool called "Facebook
Pixel," which was implemented at the discretion of Defendant.
Facebook Pixel tracks the actions of Website visitors
(subscribers), such as the pages a visitor accesses and the content
they view. When someone watches a video on Defendant's Website, the
video name and the viewer's FID are simultaneously sent to Facebook
via Facebook Pixel.
When a URL containing a video name/description and an FID are
simultaneously disclosed, that information indicates the video
material accessed by a specific individual, thus constitutes PII.
The Defendant knew that URLs containing video names/descriptions
and FIDs are simultaneously disclosed by Facebook Pixel. Defendant
also knew that such combined data identifies Website users and the
videos they watched. The Defendant did not obtain the consent of
Website users to disclose this information, i.e., their PII, says
the complaint.
The Plaintiff is a subscriber of Defendant's website.
The Defendant is a media publisher that developed, owns, and/or
operates the Website, uproxx.com, which receives thousands of
visits per year.[BN]
The Plaintiff is represented by:
Mike M. Arias, Esq.
Arnold C. Wang, Esq.
M. Anthony Jenkins, Esq.
ARIAS SANGUINETTI WANG & TORRIJOS, LLP
6701 Center Drive West, 14th Floor
Los Angeles, CA 90045
Phone: (310) 844-9696
Fax: (310) 861-0168
- and -
Nicholas A. Coulson, Esq.
Lance Spitzig, Esq.
LIDDLE SHEETS COULSON P.C.
975 E. Jefferson Avenue
Detroit, MI 48207
Phone: (313) 392-0015
Fax: (313) 392-0025
VULCAN MATERIALS: Tejeda Labor Suit Removed to N.D. Cal.
--------------------------------------------------------
The case styled JUAN MANUEL TEJEDA, on behalf of himself and others
similarly situated, Plaintiff v. VULCAN MATERIALS COMPANY; CALMAT
COMPANY; and DOES 1-100, inclusive, Defendants, Case No.
SCV-272230, was removed from the Superior Court of California for
the County of Sonoma to the United States District Court for the
Northern District of California on Feb. 10, 2023.
The Clerk of Court for the Northern District of California assigned
Case No. 3:23-cv-00619 to the proceeding.
The complaint asserts the following causes of action: (1) failure
to pay wages for all hours worked at minimum wage; (2) failure to
authorize or permit meal periods; (3) failure to authorize or
permit meal periods; (4) failure to timely pay earned wages; (5)
failure to provide complete and accurate wage statements; (6)
failure to timely pay all earned wages and final paychecks at time
of separation of employment; and (7) violation of the California
Business & Professions Code.
Vulcan Materials Company provides construction materials.[BN]
The Defendants are represented by:
Roland Juarez, Esq.
Kirk A. Hornbeck, Esq.
Veronica A. Torrejon, Esq.
HUNTON ANDREWS KURTH LLP
550 South Hope Street, Suite 2000
Los Angeles, CA 90071-2627
Telephone: (213) 532-2000
Facsimile: (213) 532-2020
E-mail: rjuarez@HuntonAK.com
khornbeck@HuntonAK.com
vtorrejon@HuntonAK.com
W.K.S. FROSTY: Hofmann Sues Over Unpaid Overtime Compensation
-------------------------------------------------------------
John Hofmann, individually and on behalf of those
similarly-situated v. W.K.S. FROSTY CORPORATION, Case No.
4:23-cv-00023-DJH (W.D. Ky., Feb. 9, 2023), is brought under the
Fair Labor Standards Act and Kentucky Wages and Hours Act as a
result of the Defendants failure to pay Plaintiff overtime
compensation.
The Defendant deprived the Plaintiff of overtime compensation by
not paying the full overtime rate of pay owed to the employees for
their overtime work under the FLSA. Specifically, the Defendant
employed the Plaintiff and others to work at Defendant's Wendy's
franchise stores. Defendant paid the employees bonuses as part of
their compensation, which were based on formulas, including store
profitability. The Defendant classified the Plaintiff and the other
employees as non-exempt employees and, in addition to the bonuses,
also paid employees hourly for their work. However, the Defendant
did not pay the correct amount of overtime compensation for
employees' overtime work. Instead of paying one and one-half times
the actual rate employees were paid (which, when one correctly
includes all compensation employees received for work performed,
included the bonuses), the Defendant only paid overtime
compensation on the lower base hourly rate of pay, says the
complaint.
The Plaintiff worked at Defendant's Wendy's franchise fast food
restaurant/store.
W.K.S. Frosty Corporation is a for-profit corporation.[BN]
The Plaintiff is represented by:
Mark N. Foster, Esq.
LAW OFFICE OF MARK N. FOSTER, PLLC
P.O. Box 869
Madisonville, KY 42431
Phone: (270) 213-1303
Email: MFoster@MarkNFoster.com
WELLS FARGO: Blessinger Files Bid for Class Certification
---------------------------------------------------------
In the class action lawsuit captioned as GUY BLESSINGER, AUDRA
NISKI, NELSON FERREIRA, individually and on behalf of all others
similarly-situated, v. WELLS FARGO & COMPANY, Case No.
8:22-cv-01029-TPB-SPF (M.D. Fla.), the Hon. Judge entered an
order:
1. certifying the "National COBRA Putative Class" defined
as:
"All participants and beneficiaries in the Defendant's
Health Plan from May 2018 through December 23, 2021, who
were sent a COBRA notice by the Defendant during the
applicable statute of limitations, in the form, because of
a "qualifying event" as determined by Defendant's records,
who did not elect continuation coverage, excluding
individuals who entered into arbitration agreements with
Defendant;"
2. appointing Named Plaintiffs as Class Representatives;
3. appointing undersigned counsel, Luis A. Cabassa, Brandon
J. Hill, and Amanda E. Heystek of Wenzel Fenton Cabassa,
P.A., as class counsel; and
4. allowing them to notify the Class members via a Court-
approved notice.
Wells Fargo is an American multinational financial services
company.
A copy of the Court's order dated Jan 31, 2023 is available from
PacerMonitor.com at https://bit.ly/40TdFwu at no extra charge.[CC]
The Plaintiffs are represented by:
Brandon J. Hill, Esq.
Luis A. Cabassa, Esq.
Amanda E. Heystek, Esq.
WENZEL FENTON CABASSA, P.A.
1110 North Florida Ave., Suite 300
Tampa, FL 33602
Telephone: (813) 224-0431
Facsimile: (813) 229-8712
E-mail: lcabassa@wfclaw.com
bhill@wfclaw.com
aheystek@wfclaw.com
WELLS FARGO: Case Management Plan & Scheduling Order Entered
------------------------------------------------------------
In the class action lawsuit captioned as MICHAEL LANNING and MARCIA
FRANCIS, on behalf of themselves and similarly situated employees,
v. WELLS FARGO BANK, N.A., Case No. 1:20-cv-02055-GBD-GWG
(S.D.N.Y.), the Hon. Judge Gabriel W. Gorenstein entered an order
on second amended civil case management plan and schedule:
1. Discovery relating to the merits Nov. 3, 2023
of any named plaintiff's claims
and discovery relevant to proving
the elements of Rule 23 shall be
commenced in time to be completed
by:
2. Plaintiffs' expert report(s) in July 10, 2023
connection with class certification
shall be filed by:
3. The Plaintiffs' experts are to be Aug. 10, 2023.
deposed by:
4. The Defendant's expert report(s) Sept. 11, 2023
in connection with class
certification shall be filed by:
5. The Defendant's experts are to be Oct. 11, 2023
deposed by:
6. The Plaintiffs' class certification Nov. 3, 2023
motion shall be filed by:
7. Dispositive motions on the merits Nov. 30, 2023
of the named plaintiffs' claims,
if any, shall be filed by:
Wells Fargo offers online and mobile banking, home mortgage, loans
and credit, and investment.
A copy of the Court's order dated Jan 31, 2023 is available from
PacerMonitor.com at https://bit.ly/3YSXLR8 at no extra charge.[CC]
WEST VILLAGE OASIS: Paez Sues Over Unpaid Minimum Wages
-------------------------------------------------------
Elton Paez, on behalf of himself and others similarly situated v.
WEST VILLAGE OASIS INC. d/b/a CASA LA FEMME, MEDHAT IBRAHIM., and
ANASTASIOS HAIRATIDIS, Case No. 151260/2023 (N.Y. Sup. Ct., New
York Cty., Feb. 8, 2023), is brought pursuant to the New York Labor
Law ("NYLL"), he and others similarly situated are entitled to
recover from the Defendants: unpaid minimum wages due to an invalid
tip credit, illegally retained gratuities, illegally retained
surcharges, and attorney's fees and costs.
The Plaintiff regularly worked 5 days per week from 3:00 p.m. to
12:00 a.m., for a total of 45 hours per week. Class Members were
scheduled to work similar hours. At all times of his employment
with the Defendants, the Plaintiff was compensated below the
minimum wage at an hourly rate of $8.65. the Plaintiff was
compensated on a weekly basis. Class Members were similarly
compensated below the minimum wage. The Plaintiff and Class Members
were paid below the minimum wage at an invalid "tip credit" minimum
wage. The Plaintiff and Class Members were required to engage more
than 20% of their working time in non-tipped related activities.
Throughout the Plaintiff's employment, the Plaintiff and Class
Members also suffered from the Defendants' policy of illegally
retaining tips, due to an improper tip pool wherein managers would
participate in the tip pool., says the complaint.
The Plaintiff was hired by the Defendants to work as a server for
the Defendants' Casa La Femme restaurant.
The Defendants operate the restaurant "Casa La Femme," located in
New York City.[BN]
The Plaintiff is represented by:
C.K. Lee, Esq.
Anne Seelig, Esq.
LEE LITIGATION GROUP, PLLC
148 West 24th Street, 8th Floor
New York, NY 10011
Phone: (212) 465-1188
Fax: (212) 465-1181
WESTON MED: Bid to Strike Carraha's Bid for Attorneys' Fees Denied
------------------------------------------------------------------
In the case, CHRISTINA CARRAHA, Plaintiff v. WESTON MED SPA &
COSMETIC SURGERY, LLC, Defendant, Case No. 6:22-cv-1755-WWB-EJK
(M.D. Fla.), Magistrate Judge Embry J. Kidd of the U.S. District
Court for the Middle District of Florida, Orlando Division, denies
the Defendant's Motion to Strike Plaintiff's Prayer for Attorneys'
Fees without prejudice.
The lawsuit is a putative class action case brought by the
Plaintiff for the Defendant's alleged violations of the Telephone
Consumer Protection Act ("TCPA"), 47 U.S.C. Section 227, and
Florida's corollary statute, the Florida Telephone Solicitation Act
("FTSA"), Fla. Stat. Section 501.059.
The Defendant moved to dismiss the Plaintiff's Complaint, or in the
alternative, for a more definite statement. On the same day it
moved to dismiss the Complaint, the Defendant also filed the
instant Motion. Therein, it moves to strike the Plaintiff's prayer
for attorneys' fees in the Complaint and bar the Plaintiff's
counsel's firm from being granted attorneys' fees as violative of
Rule 4-5.4 of the Rules Regulating the Florida Bar.
The Plaintiff's Complaint seeks an award of reasonable attorney
fees and costs pursuant to Florida Statutes Section 501.059(11).
The Defendant asserts that this claim should be stricken because
the Plaintiff's counsel's Utah-based law firm splits fees with
non-lawyers, in violation of the Rules Regulating the Florida Bar.
It asserts that, should Plaintiff succeed on the merits of her
claim, the award of attorneys' fees would inevitably pour into the
non-lawyers in the firm.
The Plaintiff asserts several arguments in response. First, she
states that the Defendant failed to confer by telephone prior to
filing the Motion pursuant to Local Rule 3.01(g). Second, she
argues that the Defendant's Motion is premised on inaccurate facts
about her counsel's law firm. Third, she states that the Motion
improperly relies on allegations outside the pleadings. Finally,
she asserts the Motion is premature prior to a finding that she is
entitled to fees.
Judge Kidd has reviewed each of the Plaintiff's arguments and finds
the last persuasive. He says the Plaintiff has a statutory basis
for her request for attorney's fees in her Complaint. Moreover, the
Plaintiff has not yet been awarded fees in the action, so the
request to strike it is premature at this stage in the litigation.
Accordingly, the Defendant's Motion to Strike is denied without
prejudice.
A full-text copy of the Court's Feb. 3, 2023 Order is available at
https://tinyurl.com/2s4a6bwh from Leagle.com.
WILDFISH LLC: Donet Files ADA Suit in S.D. New York
---------------------------------------------------
A class action lawsuit has been filed against Wildfish, LLC. The
case is styled as Maricela Donet, individually, and on behalf of
all others similarly situated v. Wildfish, LLC, Case No.
1:23-cv-01180 (S.D.N.Y., Feb. 12, 2023).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Wildfish LLC (trade name Red's Best/Menemsha Fish House) is in the
Seafoods business.[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
WILLIWAW FOODS LLC: Donet Files ADA Suit in S.D. New York
---------------------------------------------------------
A class action lawsuit has been filed against Williwaw Foods, LLC.
The case is styled as Maricela Donet, individually, and on behalf
of all others similarly situated v. Williwaw Foods, LLC, Case No.
1:23-cv-01182 (S.D.N.Y., Feb. 12, 2023).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Williwaw Foods, LLC -- https://williwawfoods.com/ -- make the
finest salmon skin chips in a variety of delicious flavors.[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
*********
S U B S C R I P T I O N I N F O R M A T I O N
Class Action Reporter is a daily newsletter, co-published by
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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.
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