/raid1/www/Hosts/bankrupt/CAR_Public/230307.mbx
C L A S S A C T I O N R E P O R T E R
Tuesday, March 7, 2023, Vol. 25, No. 48
Headlines
38th STREET CAFE: Gomez Sues Over Unpaid Overtime Wages
A-1 QUALITY LOGISTICAL: London Sues Over Unpaid Overtime Wages
A.W. FABER-CASTELL: Brown Files ADA Suit in S.D. New York
AA ACTION: Chapman Class Complaint Dismissed for Lack of Standing
ADVOCATE AURORA HEALTH: Ajani Suit Transferred to E.D. Wisconsin
AEGEAN MARINE: Court Stays Proceedings in Securities Suit
AKORN OPERATING: Jorn Sues Over WARN Act Violation
AMY SCHERBER: 350K Class Settlement in Rahab Suit Wins Final Nod
ANTHONY VINEYARDS: Court Junks Bid for Judge Disqualification
APPLE INC: Scott's Consumer Protection Suit Removed to D.D.C.
ATAX FRANCHISE: Crumwell Files ADA Suit in S.D. New York
ATWOOD DISTRIBUTING: Polk Suit Moved From N.D. Tex. to W.D. Okla.
AUDIBLE INC: Seeks to File Certain Reply Exhibits Under Seal
BEECH-NUT NUTRITION: Thomas Appeals Suit Dismissal to 2nd Cir.
BERRY CORPORATION: Torres, et al., Seek to Certify Classes
BEST ROOFING: Galeano FLSA Suit Removed to S.D. Fla.
BIG LOTS STORES: Demaria Labor Suit Removed to E.D. Cal.
BIOMARIN PHARMACEUTICAL: Continues to Defend Shareholder Class Suit
BJ'S WHOLESALE: Wiretaps Users' Website Activity, Straubmuller Says
BLOOMBERG LP: Adams Collective Action Gets Conditional Status
BRIGHTON CORNERSTONE: Fails to Properly Pay Nurses, Wedding Claims
BRINKER INTERNATIONAL: Faces Suit Over Credit Card Data Breach
BUILD REALTY: CPM Bid to Certify Class Partly Granted
CACH LLC: Wins Bid for Summary Judgment in Sanders FDCPA Suit
CELLCO PARTNERSHIP: Allen Sues Over Improper Administrative Fees
CENTURYLINK INC: Appeals Class Cert. Ruling in Bultemeyer Suit
CHARLES SCHWAB: TD Ameritrade Class Suit Stayed
CIGNA HEALTH: Overcharges Medical Bills, Srednicki Suit Alleges
CORELOGIC CREDCO: Fernandez Seeks to Certify Classes
COSTCO WHOLESALE: Appeal From Intervention Denial in Nevarez Nixed
COSTCO WHOLESALE: Rancho Aloha Wins Bid for Class Certification
CREDIT SUISSE: Loses Bid to Seal & Redact Judicial Documents
CUTTERS WIRELINE: Bid to Vacate Judgment & Award of Costs Denied
DELTA AIR: Lomas Class Cert Bid Granted in Part
ELECTRICAL MILLSGUT: Fails to Pay Proper Wages, Borjas Alleges
ENOCHIAN BIOSCIENCES: Securities Class Suit Pending in California
EQUIFAX INFORMATION: Denial of Bid to Toss Arbitration Award Upheld
FARMERS PRIDE: Ventura Sues Over Production Workers' Unpaid OT
FIRST MERIDIAN: Fails to Pay Servers Proper Wages, Alexander Says
FUBOTV INC: Continues to Defend Said-Ibrahim Shareholder Class Suit
GATEHOUSE MEDIA: Bid to Dismiss 2nd Amended Ewalt Complaint Denied
GENWORTH LIFE: Court Awards $80K in Attys.' Fees to Langs' Counsel
HDR INCORPORATED: Davis Appeals Wiretap Suit Dismissal to 9th Cir.
HEARTLAND APPLE: Underpays Restaurant Servers, Springman Suit Says
IMMUNOVANT INC: Faces Shareholder Suit Over Drug Efficacy Claims
INTL. FLAVORS: Jansen Bid for Rehearing En Banc Nixed
JORGE'S RESTAURANT: Faces Villegas Wage-and-Hour Suit in E.D.N.Y.
L'OREAL USA: Burton Class Suit Moved From E.D. Mich. to N.D. Ill.
LAS VEGAS SANDS: Faces Shareholder Suit in NV Court
LEPAGE BAKERIES: Bissonnette's Bid for Rehearing En Banc Denied
MADERA COMMUNITY: Rubio Balks at Mass Layoff Without Advance Notice
MDL 2566: Cellucci Suit Consolidated in Telexfree Securities Row
MDL 2666: Giles Suit Consolidated in Bair Hugger Device Product Row
MDL 2846: Vaughn Suit Consolidated in Hernia Mesh Product Row
MDL 2875: Zhejiang, et al. Appeal Class Certification Ruling
MDL 2903: Class Action Dismissal Bid Tossed in Fieker RPNS Suit
MDL 2903: Class Action Dismissal Bid Tossed in Mulvey RPNS Suit
MDL 2903: Class Action Dismissal Bid Tossed in Nabong v. Mattel
MDL 2903: Class Action Dismissal Bid Tossed in Nadel RPNS Suit
MDL 2903: Class Action Dismissal Bid Tossed in Pasternacki Suit
MDL 2924: Weaver Suit Consolidated in Ranitidine Drug Liability Row
MDL 2972: Case Management Order Entered in Arthur v. Blackbaud
MDL 2972: Case Management Order Entered in Atwood v. Blackbaud
MDL 2972: Case Management Order Entered in Bedell v. Blackbaud
MDL 2996: Panel Vacates Order Transferring 15 Cases From S.D.W.V.
MDL 3010: Stellman v. Google Transferred to S.D.N.Y.
MDL 3062: Goodman Planting Antitrust Suit Transferred to M.D.N.C.
MECC CONTRACTING: Lewis Files Appeal in N.Y. Appellate Div.
MINNEAPOLIS, MN: Bid for Class Certification in Goyette Suit Denied
NEW AMERICAN: Court Grants in Part Bid to Dismiss Martin Class Suit
NEXTGEN LEADS: Danner's Claims Severed & Moved to S.D. California
OHIO STATE: Dismissal of Title IX Claims in Garrett Suit Vacated
OSMOSE UTILITIES: Davis-Harris Labor Suit Removed to N.D. Ga.
OTIS WORLDWIDE: Court Junks Darnis Class Action
PACIFICORP: James, et al., File Bid to Amend Complaint
PHH CORP: Denial of Munoz's Bid to Modify Pretrial Order Flipped
PLAY THE GAME: Brown Files ADA Suit in S.D. New York
PROASSURANCE CORP: Continues to Defend Alabama Class Suit
PROCTER & GAMBLE: Mendoza Sues Over Misleading Representations
RANCHO MESQUITE: Fails to Prevent Data Breach, Oldham Alleges
RANGE RESOURCES: Objectors' Bid for Fees in Frederick Suit Denied
RISKIFIED LTD: Continues to Defend Securities Class Suit
ROGER WILLIAMS: Smith Appeals Racial Discrimination Claim Dismissal
SELIP & STYLIANOU: Vitriol Sues Over Debt Collection Harassment
SIMMONS FIRST: Pace Class Suit Settlement Wins Final Nod
SKAV DINER: Villatoro Suit Seeks Unpaid Wages for Restaurant Staff
SULLIVAN PROPERTIES: Jimenez Sues Over Unlawful Labor Practices
SUNSTONE RED: Bid for Summary Judgment in Velasquez Suit Granted
SUPER MICRO COMPUTER: Court OKs Settlement in Shareholder Suit
SUPRAGENIX LLC: Bailey Sues Over Mislabeled Weight Gainer Pills
TAPESTRY INC: Court Denies Bid to Dismiss Brooks Class Complaint
TENAHA, TX: Orders Denying 4th Fees Motion in Morrow Suit Vacated
TOMPKINS COMMUNITY: Uniform Pretrial Scheduling Order Entered
TOPGOLF PAYROLL: Benyamin Wage-and-Hour Suit Removed to E.D. Cal.
TORRANCE MEMORIAL: Doe Privacy Suit Removed to C.D. Cal.
TRS RECOVERY SERVICES: Ocampo Sues Over FDCPA Violation
TRUMP CORP: Plaintiffs Must File Class Cert Bid by March 10
UCOR LLC: Seeks More Time to File Class Cert. Response in Speer
UDEMY INC: Parties in Williams Suit Negotiate Settlement Deal
UGO LOGISTICS: Encarnacion Sues Over Unpaid Overtime Wages
UMG RECORDINGS: Waite Partial Summary Judgment Bid Nixed
UNITED STATES: Neville, et al., Seek Class Action Certification
UNITY SOFTWARE: Assad Class Suit Withdrawn
UNITY SOFTWARE: Continues to Defend Das Class Suit in California
US STEEL: Faces Shareholder Suit in Various Courts
VERTIV HOLDINGS: Continues to Defend Securities Suit in New York
VIMEO INC: Settlement in Acaley Suit Gets Initial Nod
VOLKSWAGEN GROUP: Madrigal Sues Over Warranty Coverage Denial
WASHINGTON: Popkova Vaccine Mandate Suit Removed to W.D. Wash.
WHITEFISH, MT: Court Enters Amended Scheduling Order in Beck
WHOLE FOODS: Extension of Class Cert-Related Deadlines Sought
WYNN RESORTS: Continues to Defend Ferris Securities Class Suit
YOUTUBE LLC: Schneider Suit Seeks to File Class Cert. Under Seal
YOUTUBE LLC: Schneider, et al., File Bid for Class Certification
YUSEN LOGISTICS: Supplemental Bid for Class Certification Stricken
*********
38th STREET CAFE: Gomez Sues Over Unpaid Overtime Wages
-------------------------------------------------------
Altagracia Gomez, and all similarly situated individuals v. 38th
STREET CAFE LLC (DBA DELECTICA) AND SAGI OHAYON, Case No.
1:23-cv-01576 (S.D.N.Y., Feb. 24, 2023), is brought for unpaid
overtime wages pursuant to the Fair Labor Standards Act of 1938,
and for violations of the N.Y. Lab. Law, and the overtime wage
orders of the New York Commission of Labor codified, including
applicable liquidated damages, interest, attorneys' fees, and
costs.
The Plaintiff worked for Defendant in excess of 40 hours per week
without appropriate compensation for the hours over 40 per week
that she worked. The Defendant failed to pay Plaintiff
appropriately for any hours worked over 40, either at the straight
pay rate or for any additional overtime premium, says the
complaint.
The Plaintiff is an employee of the Defendants, employed to work as
a clerk at the cafe known as Delectica in New York.
The Defendant owns, operates, and/or controls a deli.[BN]
The Plaintiff is represented by:
Lina Stillman, Esq.
STILLMAN LEGAL PC
42 Broadway, 12th Floor
New York, NY 10004
Phone: (212) 203-2417
Web: www.StillmanLegalPC.com
A-1 QUALITY LOGISTICAL: London Sues Over Unpaid Overtime Wages
--------------------------------------------------------------
Corey London, Jr. and Tevin Patton, both individually and on behalf
of all other similarly situated persons v. A-1 Quality Logistical
Solutions, LLC; William Foster, III; East Logistics, LLC; Eastern
Labor, LLC; and Empire Labor Services, LLC, Case No.
1:23-cv-00107-MRB (S.D. Ohio, Feb. 24, 2023), is brought under the
Fair Labor Standards Act ("FLSA") and the New York Labor Law
("NYLL") to remedy Defendants' failure to pay overtime premium pay
at the rate of time and one-half for all of their hours worked over
40 in a workweek and provide adequate notice upon hiring and
accurate wage statements to a class of lumpers who worked in New
York State.
The Plaintiffs were classified as independent contractors, worked
in the Defendants' customers' warehouses as lumpers and order
selectors, worked more than 40 hours in a week, and were not paid
overtime premium pay at the rate of time and one-half for all hours
worked over 40 in a workweek, says the complaint.
The Plaintiffs worked in A-1's customers' warehouses.
A-1 provides low-cost warehouse labor to companies across the
country, including Kroger, Aldi, Penske, Frito-Lay, and PFG.[BN]
The Plaintiffs are represented by:
Matthew J.P. Coffman, Esq.
COFFMAN LEGAL, LLC
1550 Old Henderson Rd., Suite 126
Columbus, OH 43220
Phone: 614-949-1181
Fax: 614-386-9964
Email: mcoffman@mcoffmanlegal.com
- and -
Matt Dunn, Esq.
GETMAN, SWEENEY & DUNN PLLC
260 Fair St.
Kingston, NY 12401
Phone: (845) 255-9370
Fax: (845)255-8649
Email: mdunn@getmansweeney.com
A.W. FABER-CASTELL: Brown Files ADA Suit in S.D. New York
---------------------------------------------------------
A class action lawsuit has been filed against A.W. Faber-Castell
USA, Inc. The case is styled as Lamar Brown, on behalf of himself
and all others similarly situated v. A.W. Faber-Castell USA, Inc.,
Case No. 1:23-cv-01567 (S.D.N.Y., Feb. 24, 2023).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
A.W. Faber-Castell USA, Inc. -- https://www.faber-castell.com/ --
provide writing instruments. The Company offers black lead,
coloured and mechanical pencils.[BN]
The Plaintiff is represented by:
Mars Khaimov, Esq.
10826 64th Avenue, Ste. 2nd Floor
Forest Hills, NY 11375
Phone: (917) 915-7415
Email: mars@khaimovlaw.com
AA ACTION: Chapman Class Complaint Dismissed for Lack of Standing
-----------------------------------------------------------------
In the case, KELLIE CHAPMAN, on behalf of herself and all others
similarly situated, Plaintiff v. AA ACTION COLLECTION CO., INC.
doing business as AA ACTION COLLECTION COMPANY, CHULSKY KAPLAN,
LLC, AND JOHN DOES 1-25, Defendants, Civ. No. 2:21-cv-04175 (WJM)
(D.N.J.), Judge William J. Martini of the U.S. District Court for
the District of New Jersey dismisses the Complaint for lack of
standing.
In this is putative class action for violations of the Fair Debt
Collection Practices Act, 15 U.S.C. Section 1692 et seq.,
("FDCPA"), the Court denied without prejudice the motion of AA for
Fed. R. Civ. P. 56 summary judgment, and the cross motion for
summary judgment by Chapman's, pending the Court's determination of
whether it has subject matter jurisdiction.
Sometime prior to Oct. 22, 2020, the Plaintiff incurred one or more
financial obligations arising out of a transaction with Livingston
Subspecialty Group, LLC ("LSG"), a New Jersey healthcare provider.
After the obligations became past due, LSG sent AA the Debt for
collection.
On Sept. 26, 2018, AA sent a debt collection letter to the
Plaintiff indicating, among other things, that if she did not
dispute the $300 outstanding balance within 30 days, her account
may be reported to credit reporting agencies. On Oct. 30, 2018, AA
sent the Plaintiff a second debt collection letter informing her
that that would be the last and final written notice regarding the
Debt before her account would be scheduled to be reported to the
credit reporting agencies. Thereafter, on Nov. 30, 2018, AA
reported the unpaid Debt to TransUnion.
Nearly two years later, because the Plaintiff did not recognize the
creditor LSG on her credit reports, the Plaintiff faxed a letter
dated Oct. 22, 2020 to AA disputing the Debt and requesting
verification and proof of the balance owed. AA denies that it
received the Dispute Letter or that the Plaintiff ever responded in
any capacity to the debt collection letters. On Dec. 24, 2020, the
Plaintiff reviewed her TransUnion credit report, which does not
indicate that the Debt is disputed but does state: "Date Updated:
12/18/2020."
On March 5, 2021, the Plaintiff filed a putative class action
claiming violations of Sections 1692e(2)(A), 1692e(8), and
1692e(10) of the FDCPA. She maintains that by failing to
communicate to one or more of the credit reporting bureaus that the
Debt was disputed, AA falsely or deceptively represented or made a
misleading representation as to the character or legal status of
her Debt in violation of the FDCPA.
Subsequently, the Defendant filed a motion for summary judgment
arguing that the Plaintiff's claims are time-barred. The Plaintiff
cross moved for summary judgment. The Court denied those motions
without prejudice stating it would re-list the motions if it found
subject matter jurisdiction to exist. After giving the parties the
opportunity to address whether the Plaintiff was concretely harmed
and had Article III standing to bring her claims, the Court now
addresses the standing issue.
Judge Martini, citing TransUnion LLC v. Ramirez, 141 S.Ct. 2190,
2204 (2021), explains that the Plaintiffs must clearly allege facts
demonstrating all three elements of constitutional standing: (1) an
"injury in fact," (2) that is "fairly traceable" to a defendant's
conduct, and that (3) is likely to be redressed by favorable
judicial intervention. To establish an "injury in fact," a
plaintiff must show an invasion of a legally protected interest
which is (a) concrete and particularized and (b) actual or
imminent, not conjectural or hypothetical. Concrete injuries can be
tangible or intangible.
In the case, Judge Martini opines that the reputational harm that
the Plaintiff is claiming she suffered is analogous to the harm
caused by defamation. The Plaintiff must plead facts sufficient to
identify the defamatory words, their utterer and the fact of their
publication to a third party. In TransUnion, class members were
mislabeled as "potential terrorists or serious criminals," but the
Court held that only those members whose credit reports were
actually disseminated to third-parties suffered concrete harm that
bore a "close relationship to the harm from a false and defamatory
statement."
Judge Martini holds that the Plaintiff has proffered no evidence as
to the source of that "update" or the reason for any "update" when
no change in information is evident on the credit report. Even if
the "update" was from AA, it is conjecture as to when the "update"
was sent; there is nothing in the record that explains how
TransUnion handles communications from debt collectors or agencies.
In short, the Plaintiff has not presented sufficient evidence to
demonstrate that sometime between Oct. 22, 2020 and Dec. 18, 2020,
AA disseminated to TransUnion any information regarding the Debt.
Even assuming arguendo that AA did send the "update," there is no
evidence of what information any such communication contained,
namely that it failed to indicate that the Debt was disputed and
hence defamatory. While the Plaintiff claims she suffered "damages
and other harm," she fails to demonstrate publication of misleading
information which is required for reputational harm.
Moreover, insofar as the Plaintiff appears to contend in her briefs
that risk of future harm is the concrete injury, that has not been
pled in the Complaint nor has she set forth facts to support such a
claim. In any event, the mere "risk of future harm" alone does not
support Article III standing in a suit for damages.
Alternatively, Judge Martini finds that the Plaintiff has not
presented sufficient evidence to support a finding that after Oct.
22, 2020, AA published any statement to TransUnion or any other
third-party regarding her Debt, let alone a misleading one.
Judge Martini concludes that the Plaintiff has failed to establish
that she suffered a concrete injury to confer Article III standing.
Therefore, he dismisses the Complaint for lack of standing.
A full-text copy of the Court's Feb. 15, 2023 Opinion is available
at https://tinyurl.com/4tkduj46 from Leagle.com.
ADVOCATE AURORA HEALTH: Ajani Suit Transferred to E.D. Wisconsin
----------------------------------------------------------------
The case styled as Angel Ajani, individually and on behalf of all
others similarly situated v. Advocate Aurora Health Inc., Case No.
1:22-cv-06559 was transferred from the U.S. District Court for the
Northern District of Illinois, to the U.S. District Court for the
Eastern District of Wisconsin on Feb. 24, 2023.
The District Court Clerk assigned Case No. 2:23-cv-00259-SCD to the
proceeding.
The nature of suit is stated as Other Contract.
Advocate Aurora Health -- https://www.advocateaurorahealth.org/ --
is a non-profit health care system with dual headquarters located
in Milwaukee, Wisconsin, and Downers Grove, Illinois.[BN]
The Plaintiff is represented by:
Bryan Paul Thompson, Esq.
Robert W. Harrer, Esq.
CHICAGO CONSUMER LAW CENTER PC
33 N. Dearborn St., Ste. 400
Chicago, IL 60602
Phone: (312) 858-3239
Email: bryan.thompson@cclc-law.com
The Defendant is represented by:
Jeffrey J. Bushofsky, Esq.
FRANCIS X LIESMAN, III
Ropes & Gray
191 N Wacker Dr-Fl 32
Chicago, IL 60606
Phone: (312) 845-1272
Fax: (312) 845-5530
Email: jeffrey.bushofsky@ropesgray.com
AEGEAN MARINE: Court Stays Proceedings in Securities Suit
---------------------------------------------------------
In the class action lawsuit re: Aegean Marine Petroleum Network
Inc. Securities Litigation, Case No. 1:18-cv-04993-NRB (S.D.N.Y.),
the Hon. Judge Naomi Reice Buchwald entered an order to stay
proceedings and extend deadlines as follows:
Event Existing Proposed
Deadline Revised Date
Lead Plaintiff's Reply Papers Mar. 3, 2023 April 14, 2023
for Class Certification
The Parties stipulated and agreed that the case should be stayed
until after the March 21, 2023 settlement conference is completed
and that the deadline for Lead Plaintiff to file its reply papers
for class certification that was previously ordered by the Court on
November 18, 2022 be adjourned and rescheduled.
On September 2, 2022, the Court entered an Order regarding the
litigation schedule. On November 18, 2022, the Court entered an
Order granting Lead Plaintiff's letter motion to file a revised
motion for class certification and adopting all dates requested by
Lead Plaintiff in its letter dated November 14, 2022.
On December 7, 2022, Lead Plaintiff filed its revised motion for
class certification and Melissanidis filed his opposition to Lead
Plaintiff's revised motion for class certification on January 20,
2023, both in compliance with the Court's November 18, 2022 Order.
On January 13, 2023, this Court issued an Order scheduling a
settlement conference with the Honorable Judge Stewart Aaron for
February 22, 2023. On February 6, 2023, Judge Aaron issued an Order
granting Melissanidis's letter motion to adjourn the February 22,
2023 settlement conference and rescheduling the settlement
conference to March 21, 2023 if he is unable to informally "broker
a settlement" between the Parties before that time.
In the interests of efficiency and cost savings, Lead Plaintiff and
Melissanidis respectfully request that the Court enter an Order
staying the proceedings until after the March 21, 2023 settlement
conference is completed and adjourning the March 3, 2023 deadline
for Lead Plaintiff to file its reply papers for class certification
until April 14, 2023.
Aegean Marine is an international marine fuel logistics company.
A copy of the Court's order dated Feb. 21, 2023 is available from
PacerMonitor.com at https://bit.ly/3J2erAi at no extra charge.[CC]
The Plaintiff is represented by:
Kristin J. Moody, Esq.
Joseph J. Tabacco, Jr., Esq.
Nicole Lavallee, Esq.
Christopher T. Heffelfinger, Esq.
Jeffrey Rocha, Esq.
BERMAN TABACCO
425 California Street, Suite 2300
San Francisco, CA 94104
Telephone: (415) 433-3200
Facsimile: (415) 433-6382
E-mail: kmoody@bermantabacco.com
jtabacco@bermantabacco.com
nlavallee@bermantabacco.com
cheffelfinger@bermantabacco.com
jrocha@bermantabacco.com
The Defendant is represented by:
Sabina Mariella, Esq.
Jonathan D. Schiller, Esq.
Matthew L. Schwartz, Esq.
BOIES SCHILLER FLEXNER LLP
55 Hudson Yards
New York, NY 10001
Telephone: (212) 446-2300
E-mail: jschiller@bsfllp.com
mlschwartz@bsfllp.com
smariella@bsfllp.com
AKORN OPERATING: Jorn Sues Over WARN Act Violation
--------------------------------------------------
Sarah Jorn, Tammy Britz, Jolene Lockwood, and Gregory Lockwood,
individually and on behalf of all others similarly situated v.
AKORN OPERATING COMPANY LLC, Case No. 2:23-cv-02034-CSB-EIL (C.D.
Ill., Feb. 23, 2023), is brought under the Worker Adjustment and
Retraining Notification Act (the "WARN Act"), to recover unpaid
wages and other compensation owed after Defendant closed all U.S.
sites and laid off all U.S. employees without proper notice on
February 22, 2023.
The explicit purpose of the WARN Act is to provide protection to
workers, their families and communities by requiring employers to
provide notification 60 calendar days in advance of plant closings
and mass layoffs. The requisite advance notice provides workers and
their families some transition time to adjust to the prospective
loss of employment, to seek and obtain alternative jobs and, if
necessary, to enter skill training or retraining that will allow
these workers to successfully compete in the job market. The WARN
Act also provides for notice to State dislocated worker units so
that dislocated worker assistance can be promptly provided.
As of February 22, 2023, Plaintiffs were all longtime and in good
standing employees of Defendant; each of them worked at its
"Production Center," which was one of two of Defendant's facilities
in Decatur, Illinois. On February 22, 2023, Defendant closed all of
its U.S. sites and permanently laid off all of its U.S. employees,
including Plaintiffs. The Plaintiffs were not provided 60 days'
written notice of their employment loss or the nationwide
shuttering of Defendant's U.S. locations. Thus, Plaintiffs and all
others similarly situated, have suffered injury from Defendant's
violations of the WARN Act, says the complaint.
The Plaintiffs were employed by the Defendant.
The Defendant is an Illinois-based pharmaceutical company that
develops, manufactures and markets specialty pharmaceuticals,
including prescription, consumer health and animal products.[BN]
The Plaintiff is represented by:
David S. Almeida
ALMEIDA LAW GROUP LLC
849 W. Webster Avenue
Chicago, IL 60614
Phone: 312-576-3024
Email: david@almeidalawgroup.com
AMY SCHERBER: 350K Class Settlement in Rahab Suit Wins Final Nod
----------------------------------------------------------------
In the case, JIMMY A. RAHAB, Plaintiff v. AMY SCHERBER, INC. D/B/A,
Defendant, Index No. 161079/2020, Motion Seq. No. 002 (N.Y. Sup.),
Judge Sabrina Kraus of the Supreme Court of New York County grants
the Plaintiffs' Motion for Final Approval of Class Action
Settlement, Service Award to Plaintiff, and Award of Class
Counsel's Attorneys' Fees and Costs.
The Plaintiff filed the present Class Action Complaint in New York
County Supreme Court on Dec. 21, 2020. The Complaint alleged that
the Defendant violated the New York Labor Law ("NYLL") and its
supporting New York State Department of Labor Regulations ("NYCRR")
during the Class Period because the Defendant allegedly failed to
provide maintenance pay for required uniforms and failed to pay
employees for all time worked.
A Joint Settlement Agreement and Release was executed by all
parties to resolve this matter for up to $350,000. On Aug. 10,
2022, the Plaintiff filed a proposed Order for Preliminary Approval
of the Settlement Agreement, Certification of the Class for
Settlement Purposes, Appointment of Plaintiff as Class
Representative, Appointment of the Law Firm of Bouklas Gaylord LLP
as Class Counsel, Approval of the Class Notice, and Scheduling a
Fairness Hearing, with an accompanying Memorandum of Law and
supporting exhibits. On Sept. 8, 2022, the Court granted
preliminary approval of the Settlement Agreement, certified the
Settlement Class, appointed the Plaintiff as Class the
Representative, appointed Bouklas Gaylord LLP as the Class Counsel,
approved the Class Notice, and scheduled a date for the Fairness
Hearing.
On Oct. 12, 2022, the Claims Administrator mailed the Class Notice
to all Class Members. Subsequently, the Plaintiff filed a Motion
for Final Approval of Class Action Settlement, Service Award to
Plaintiff, and Award of Class Counsel's Attorneys' Fees and Costs.
The Defendant did not oppose this motion.
The Court held a Fairness Hearing on Feb. 15, 2023. The Class
Counsel received zero objections and three opt-outs.
Having considered the Motion for Final Approval and the complete
record in the matter, Judge Kraus certifies the following under
Article 9 of the New York Civil Practice Law and Rules ("CPLR") for
settlement purposes only: Named Plaintiff and all non-exempt
employees who worked for Defendant in the State of New York during
the Class Period, who do not opt-out of the Action.
Judge Kraus grants the Motion for Final Approval and finally
approves the settlement as set forth in the Settlement Agreement of
up to $350,000. She then finds reasonable the service award of
$10,000 to class representative, Jimmy Rahab, given the
contributions he made to advance the prosecution and resolution of
the lawsuit. This award will be paid from the settlement fund.
Judge Kraus grants the Class Counsel's request for attorneys' fees
and cost and awards the Class counsel $122,126.67, which is 33% of
the settlement fund, plus fees and costs expended of $5,460. The
attorneys' fees, costs, and expenses will be paid from the
settlement fund.
The Defendant is to provide proof that the QSF has been fully
funded within at least 15 days of the Final Effective Date.
Within 14 days of the Funding Date, the Settlement Claims
Administrator will pay (i) the Class Counsel attorneys' fees and
costs of $122,126.67 from the Settlement Fund; (ii) the service
award of $10,000 to Named Plaintiff Jimmy Rahab; (iii) the claims
administration fees of $16,000; and (iv) the remainder of the
Settlement Fund (after subtracting the attorneys' fees and
expenses, claims administration fees, employer-taxes, and service
award) tothe Qualified Class Members in accordance with the
allocation plan described in the Settlement Agreement.
The Court retains jurisdiction over the action for the purpose of
enforcing the Settlement Agreement and overseeing the distribution
of settlement funds. The parties will abide by all terms of the
Settlement Agreement.
The litigation will be dismissed in its entirety with prejudice and
all members of the Settlement Class who have not excluded
themselves from the settlement will be conclusively deemed to have
released and discharged the Defendant from, and will be permanently
enjoined from, directly or indirectly, pursuing and/or seeking to
reopen, any and all claims that have been released pursuant to this
settlement.
A full-text copy of the Court's Feb. 15, 2023 Final Judgment &
Order is available at https://tinyurl.com/2txdm3we from
Leagle.com.
ANTHONY VINEYARDS: Court Junks Bid for Judge Disqualification
-------------------------------------------------------------
In the class action lawsuit captioned as SEBASTIANA
MARTINEZ-SANCHEZ, et al., v. ANTHONY VINEYARDS, et al., Case No.
1:19-cv-01404-ADA-CDB (E.D. Cal.), the Court entered an order
denying the defendants' motion for disqualification.
In sum, none of Defendants' arguments, standing alone or taken
together, suggest the existence of bias warranting the assigned
judge's recusal in this matter. Defendants' objections simply
amount to a discomfort with the undersigned's lived and
professional experience.
The Courts, however, have long recognized that judges "are not
sterile creatures who don judicial robes without any prior contacts
in the community but rather are very likely to be men and women
with a broad exposure to all kinds of citizens of all shades of
persuasion and background.
On December 12, 2019, Plaintiffs filed their first amended
complaint as a putative class action alleging various state and
federal labor law violations. The Plaintiffs filed a motion for
class certification on April 30, 2021.
On November 18, 2021, the assigned Magistrate Judge issued findings
and recommendations that, among other conclusions,
recommended certification of a monetary relief class defined as:
"All persons employed by Defendants as non-exempt
fieldworkers in non-supervisory positions who performed
agricultural work for Anthony Vineyards' agricultural
operations within the State of California at any time between
October 4, 2015 through the date of service of this order."
The Magistrate Judge also issued findings and recommendations on
October 22, 2021 that recommend striking some, but not all, of
Plaintiffs' PAGA claims. The Plaintiffs and Defendants filed
objections to the Magistrate Judge's conclusions on both motions.
A copy of the Court's order dated Feb. 21, 2023 is available from
PacerMonitor.com at https://bit.ly/3y21IXZ at no extra charge.[CC]
APPLE INC: Scott's Consumer Protection Suit Removed to D.D.C.
-------------------------------------------------------------
The case styled RICKY SCOTT, individually, on behalf of himself and
on behalf of the general public of the District of Columbia,
Plaintiff v. APPLE INC., Defendant, Case No. 2023- CAB-000161, was
removed from the Superior Court of the District of Columbia to the
United States District Court for the District of Columbia on Feb.
21, 2023.
The Clerk of Court for the District of Columbia assigned Case No.
1:23-cv-00475 to the proceeding.
The complaint brings claims under the Consumer Protection
Procedures Act in connection with Plaintiff's purchase of a
16-inch, 2019 Apple MacBook Pro from Amazon.com.
Apple Inc. is an American multinational technology company
headquartered in Cupertino, California.[BN]
The Defendant is represented by:
Mark A. Perry, Esq.
WEIL, GOTSHAL & MANGES LLP
2001 M Street, N.W.
Washington, DC 20036
Telephone: (202) 682-7000
Facsimile: (202) 857-0940
E-mail: Mark.Perry@weil.com
ATAX FRANCHISE: Crumwell Files ADA Suit in S.D. New York
--------------------------------------------------------
A class action lawsuit has been filed against Atax Franchise, Inc.
The case is styled as Denise Crumwell, on behalf of herself and all
other persons similarly situated v. Atax Franchise, Inc., Case No.
1:23-cv-01539 (S.D.N.Y., Feb. 23, 2023).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
ATAX -- https://ataxfranchise.com/ -- is a full-service national
tax preparation and business services franchise.[BN]
The Plaintiff is represented by:
Dana Lauren Gottlieb, Esq.
GOTTLIEB & ASSOCIATES
150 E. 18 St., Suite PHR
New York, NY 10003
Phone: (917) 796-7437
Fax: (212) 982-6284
Email: danalgottlieb@aol.com
ATWOOD DISTRIBUTING: Polk Suit Moved From N.D. Tex. to W.D. Okla.
-----------------------------------------------------------------
The case styled BAYLI POLK and ALYSSA SPRINGER, individually and on
behalf of all others similarly situated v. ATWOOD DISTRIBUTING GP,
LLC and ATWOOD DISTRIBUTING, L.P., Case No. 7:22-cv-00072, was
transferred from the U.S. District Court for the Northern District
of Texas to the U.S. District Court for the Western District of
Oklahoma on February 24, 2023.
The Clerk of Court for the Western District of Oklahoma assigned
Case No. 5:23-cv-00182-D to the proceeding.
The case arises from the Defendants' violations of Title VII of the
Civil Rights Act and the Equal Pay Act of 1963.
Atwood Distributing GP, LLC is a company that owns and operates
farm and ranch supply stores in Texas, Arkansas, Kansas, Oklahoma,
and Missouri.
Atwood Distributing, L.P. is a company that owns and operates farm
and ranch supply stores in Texas, Arkansas, Kansas, Oklahoma, and
Missouri. [BN]
The Plaintiffs are represented by:
Melissa Moore, Esq.
Rochelle Owens, Esq.
MOORE & ASSOCIATES
Lyric Centre
440 Louisiana Street, Suite 1110
Houston, TX 77002
Telephone: (713) 222-6775
Facsimile: (713) 222-6739
E-mail: melissa@mooreandassociates.net
rochelle@mooreandassociates.net
AUDIBLE INC: Seeks to File Certain Reply Exhibits Under Seal
------------------------------------------------------------
In the class action lawsuit captioned as Golden Unicorn
Enterprises, Inc. et al., v. Audible, Inc., Case No.
1:21-cv-07059-JMF (S.D.N.Y.), Audible seeks leave for:
(1) the Plaintiffs to file a redacted version of their Reply,
and
(2) to file certain exhibits from their Reply under
seal.
Audible is an American online audiobook and podcast service that
allows users to purchase and stream audiobooks and other forms of
spoken word content.
A copy of the Court's order dated Feb. 21, 2023 is available from
PacerMonitor.com at https://bit.ly/3J4z0w5 at no extra charge.[CC]
The Defendant is represented by:
Brian D. Buckley, Esq.
FENWICK & WEST LLP
1191 Second Avenue, 10th Floor
Seattle, WA 98101
Telephone: (206) 389-4515
E-mail: Bbuckley@fenwick.com
BEECH-NUT NUTRITION: Thomas Appeals Suit Dismissal to 2nd Cir.
--------------------------------------------------------------
LAURIE THOMAS, et al. are taking an appeal from a court order
dismissing their lawsuit entitled Laurie Thomas, individually and
on behalf of all others similarly situated, Plaintiffs, v.
Beech-Nut Nutrition Company, Defendant, Case No. 1:21-cv-00133, in
the U.S. District Court for the Northern District of New York.
The Plaintiffs filed a class action suit against the Defendant for
its negligent, reckless, and intentional practice of
misrepresenting and failing to fully disclose the heavy metals and
perchlorate or other ingredients that do not conform to the labels,
packaging, advertising, and statements of its products sold.
According to the complaint, the Defendant manufactures, markets,
advertises, labels, distributes, and sells baby food products under
the brand name Beech-Nut throughout the United States. The
Defendant states that it offers natural and organic baby foods
"that are free from artificial preservatives, colors and flavors."
The Defendant's packaging and labels further emphasize that its
baby food products are natural, organic, and safe for human infant
consumption. Yet nowhere in the labeling, advertising, statements,
warranties, and packaging does the Defendant disclose that the
products include and have a high risk of containing heavy metals or
other ingredients that do not conform to the labels, packaging,
advertising, and statements.
On Aug. 29, 2022, the Defendant moved to dismiss the consolidated
class action complaint, which the Court granted through an Order
entered by Judge David N. Hurd on Jan. 19, 2023. The consolidated
amended class action complaint was dismissed without prejudice. The
Clerk of Court was directed to enter judgment accordingly and close
the file.
On Jan. 24, 2023, judgment was entered in favor of the Defendant.
The appellate case is captioned Thomas v. Beech-Nut Nutrition
Company, Case No. 23-220, in the United States Court of Appeals for
the Second Circuit, filed on February 22, 2023. [BN]
Plaintiffs-Appellants LAURIE THOMAS, et al., individually and on
behalf of all others similarly situated, are represented by:
Erin Green Comite, Esq.
SCOTT+SCOTT, ATTORNEYS AT LAW, LLP
156 South Main Street
P.O. Box 192
Colchester, CT 06415
Telephone: (860) 537-5537
Defendant-Appellee Beech-Nut Nutrition Company is represented by:
Kathleen E. McCarthy, Esq.
KING & SPALDING LLP
1185 Avenue of the Americas
New York, NY 10036
Telephone: (212) 556-2345
BERRY CORPORATION: Torres, et al., Seek to Certify Classes
----------------------------------------------------------
In the class action lawsuit captioned as LUIS TORRES, ALLIA
DEANGELIS, DARRICK INMAN, Individually and On Behalf of All Others
Similarly Situated, v. BERRY CORPORATION, ARTHUR T. SMITH, CARY
BAETZ, GARY A. GROVE, BRENT S. BUCKLEY, KAJ VAZALES, and EUGENE J.
VOILAND, Case No. 3:20-cv-03464-S (N.D. Tex.), the Plaintiffs ask
the Court to enter an order:
1. Certifying a class consisting of:
"all persons and entities who purchased or otherwise
acquired Berry's common stock pursuant and/or traceable to
Berry's Registration Statement issued in connection with
its July 26, 2018 Initial Public Offering, seeking to
pursue remedies under Sections 11 and 15 of the Securities
Act of 1933;"
2. Certifying a class consisting of:
"all persons or entities, other than Defendants, who
purchased or otherwise acquired Berry's common stock
between July 26, 2018 and November 3, 2020, both dates
inclusive, seeking to pursue remedies under Sections 10(b)
and 20(a) of the Securities Exchange Act of 1934 and SEC
Rule 10b-5 promulgated thereunder;
3. Appointing Plaintiffs as Class Representatives;
4. Appointing Plaintiffs' choice of counsel, Pomerantz LLP
and The Rosen Law Firm, P.A. as Class Counsel.
Berry Corp. is a company primarily engaged in hydrocarbon
exploration in California, the Uintah Basin, and the Piceance
Basin.
A copy of the Plaintiffs' motion dated Feb. 13, 2023 is available
from PacerMonitor.com at https://bit.ly/3SzveOh at no extra
charge.[CC]
The Plaintiffs are represented by:
Joshua B. Silverman, Esq.
Omar Jafri, Esq.
Brian P. O'Connell, Esq.
POMERANTZ LLP
Ten South La Salle Street, Suite 3505
Chicago, IL 60603
Telephone: (312) 377-1181
Facsimile: (312) 377-1184
E-mail: jbsilverman@pomlaw.com
ojafri@pomlaw.com
boconnell@pomlaw.com
- and -
Phillip Kim, Esq.
Ha Sung (Scott) Kim, Esq.
THE ROSEN LAW FIRM, P.A.
275 Madison Avenue, 40th Floor
New York, NY 10016
Telephone: (212) 686-1060
Fax: (212) 202-3827
Email: pkim@rosenlegal.com
skim@rosenlegal.com
Curtis C. Graves, Esq.
GRAVES LAW OFFICE
12700 Park Central Drive, Suite 520
Dallas, TX 75251
Telephone: (214) 321-6940
Facsimile: (866) 770-6949
E-mail: curtis@cgraveslaw.com
- and -
Willie C. Briscoe, Esq.
THE BRISCOE LAW FIRM, PLLC
12700 Park Central Drive, Suite 520
Dallas, TX 75251
Telephone: (972) 521-6868
Facsimile: (346) 214-7463
E-mail: wbriscoe@thebriscoelawfirm.com
- and -
Eitan Kimelman, Esq.
BRONSTEIN, GEWIRTZ &
GROSSMAN, LLC
60 E 42nd Street, Suite 4600,
New York, NY 10165
Telephone: (212) 697-6484
Facsimile: 212-697-7296
E-mail: eitank@bgandg.com
- and -
Daniel Tepper, Esq.
LEVI & KORSINSKY, LLP
55 Broadway, 10th Floor
New York, NY 10006
Telephone: (212) 363-7500
Facsimile: (212) 363-7171
E-mail: dtepper@zlk.com
- and -
Marion C. Passmore, Esq.
BRAGAR EAGEL & SQUIRE, P.C.
580 California Street, Suite 1200
San Francisco, CA 94104
Telephone: (415) 568-3599
Facsimile: (212) 214-0506
E-mail: passmore@bespc.com
BEST ROOFING: Galeano FLSA Suit Removed to S.D. Fla.
----------------------------------------------------
The case styled FELIPE ANTONIO GARCIA GALEANO and all others
similarly situated, Plaintiff v. BEST ROOFING SERVICES LLC, GREGG
E. WALLICK, IAN WALLICK, LEOPOLDO ROSSI, and SARA PORTER,
Defendants, Case No. 2023-001029-CA-01, was removed from the
Circuit Court of the 11th Judicial Circuit in and for Miami-Dade
County, Florida to the U.S. District Court for the Southern
District of Florida on Feb. 17, 2023.
The Clerk of Court for the Southern District of Florida assigned
Case No. 1:23-cv-20645 to the proceeding.
This labor claim arises from the Defendants' alleged overtime wage
violation under the Fair Labor Standards Act. The Defendants failed
to pay Plaintiff overtime wages for approximately 12 hours per
week, says the suit.
Best Roofing Services LLC is a roofing contractor in Fort
Lauderdale, Florida.[BN]
The Defendants are represented by:
Reginald J. Clyne, Esq.
Andres F. Vidales, Esq.
QUINTAIROS, PRIETO, WOOD & BOYER, P.A.
9300 S. Dadeland Blvd., 4th Floor
Miami, FL 33156
Telephone: (305) 670-1101
Facsimile: (305) 670-1161
E-mail: rclyne.pleadings@qpwblaw.com
reginald.clyne@qpwblaw.com
andres.vidales@qpwblaw.com
cecilia.quevedo@qpwblaw.com
sofia.arcila@qpwblaw.com
BIG LOTS STORES: Demaria Labor Suit Removed to E.D. Cal.
--------------------------------------------------------
The case styled GINA DEMARIA individually and on behalf of herself
and all others similarly situated, Plaintiff v. BIG LOTS STORES -
PNS, LLC, a California limited liability company; BIG LOTS F&S LLC,
an Ohio limited liability company; BIG LOTS STORES, LLC, an Ohio
limited liability company; BIG LOTS MANAGEMENT, LLC, an Ohio
limited liability company; PNS STORES, INC., a California
Cooperation; and DOES 1 through 100, inclusive, Defendants, Case
No. FCS059032, was removed from the Superior Court of California,
County of Solano, to the United States District Court for the
Eastern District of California on Feb. 17, 2023.
The Clerk of Court for the Eastern District of California assigned
Case No. 2:23-cv-00296-KJM-CKD to the proceeding.
The suit arises from the Defendants' alleged violations of the
California Labor Code including unpaid overtime, unpaid minimum
wages, meal period violations, rest period violations,
non-compliant wage statements, wages not timely paid on
termination, wages not timely paid during employment, split shift
violations and failure to provide suitable seating, and related
claims asserted through California Business and Professions Code.
Big Lots Stores, Inc. is an American retail company headquartered
in Columbus, Ohio. [BN]
The Defendants are represented by:
Cory D. Catignani, Esq.
VORYS, SATER, SEYMOUR AND PEASE LLP
4675 MacArthur Court, Suite 700
Newport Beach, CA 92660
Telephone: (949) 526-7904
Facsimile: (949) 383-2385
E-mail: cdcatignani@vorys.com
BIOMARIN PHARMACEUTICAL: Continues to Defend Shareholder Class Suit
-------------------------------------------------------------------
Biomarin Pharmaceutical Inc. disclosed in its Form 10-K Report for
the fiscal period ending December 31, 2022 filed with the
Securities and Exchange Commission on February 27, 2023, that the
Company will continue to defend itself from shareholder class suit
over gene therapy drug in the United States District Court in the
Northern District of California.
On September 25, 2020, a purported shareholder class action lawsuit
was filed against the Company, its Chief Executive Officer, its
President of Worldwide Research and Development and its Chief
Financial Officer in the United States District Court in the
Northern District of California, alleging violations under Sections
10(b) and 20(a) of the Securities Exchange Act of 1934 as amended
(the Exchange Act). The complaint alleges that we made materially
false or misleading statements regarding the clinical trials and
Biologics License Application (BLA) for ROCTAVIAN (formerly known
as valoctocogene roxaparvovec) by purportedly failing to disclose
that differences between the Company's Phase 1/2 and Phase 3
clinical studies limited the ability of the Phase 1/2 study to
support ROCTAVIAN's durability of effect and, as a result, that it
was foreseeable that the Food and Drug Administration (FDA) would
not approve the BLA without additional data.
The complaint seeks an unspecified amount of damages, prejudgment
and post-judgment interest, attorneys' fees, expert fees, and other
costs. The lead plaintiff filed an amended complaint in February
2021, dropping its Chief Financial Officer as a defendant, and
asserting that the Company misled investors about the progress of
the FDA's review of its BLA for ROCTAVIAN.
On April 22, 2021, the Company moved to dismiss the amended
complaint.
On January 6, 2022, the court denied the Company's motion to
dismiss. It answered the amended complaint on February 15, 2022.
Plaintiff filed a motion for class certification on October 17,
2022.
The Company filed an opposition to Plaintiff’s motion for class
certification on January 27, 2023.
Trial is scheduled to begin on May 20, 2024.
The Company believes that the claims have no merit and it intends
to vigorously defend this action.
BioMarin Pharmaceutical Inc. is a global biotechnology company
based in California.
BJ'S WHOLESALE: Wiretaps Users' Website Activity, Straubmuller Says
-------------------------------------------------------------------
MATTHEW STRAUBMULLER, individually and on behalf of all others
similarly situated, Plaintiff v. BJ'S WHOLESALE CLUB, INC.,
Defendant, Case No. 8:23-cv-00470-GLS (D. Md., Feb. 21, 2023) is a
class action brought against BJS for wiretapping the electronic
communications of Plaintiff and other visitors to its website
www.bjs.com in violation of the Maryland Wiretap Act.
According to the complaint, BJS procures third-party vendors, such
as Microsoft Corporation, to embed snippets of JavaScript computer
code on BJS'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 BJS website,
including their mouse movements, clicks, keystrokes, URLs of web
pages visited, and/or other electronic communications in
real-time.
The Plaintiff brings this action individually and on behalf of a
class of all Maryland citizens whose website communications were
intercepted through BJS's procurement and use of Session Replay
Code embedded on the webpages of www.bjs.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.
BJ's Wholesale Club, Inc. is an American membership-only warehouse
club chain.[BN]
The Plaintiff is represented by:
James J. Pizzirusso, Esq.
HAUSFELD LLP
888 16th Street N.W. Suite 300
Washington, D.C. 20006
Telephone: (202) 540-7200
E-mail: jpizzirusso@hausfeld.com
- and -
Steven M. Nathan, Esq.
HAUSFELD LLP
33 Whitehall Street Fourteenth Floor
New York, NY 10004
Telephone: (646) 357-1100
E-mail: snathan@hausfeld.com
- and -
Katrina Carroll, Esq.
LYNCH CARPENTER, LLP
111 W. Washington St. Suite 1240
Chicago, IL 60602
Telephone: (312) 750-1265
E-mail: 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
BLOOMBERG LP: Adams Collective Action Gets Conditional Status
-------------------------------------------------------------
In the class action lawsuit captioned as SHEENA ADAMS, individually
and on behalf of all other similarly situated persons, v. BLOOMBERG
L.P., Case No. 1:20-cv-07724-RA-JLC (S.D.N.Y.), the Hon. Judge
James L. Cott entered an order:
1. Granting conditional certification of this collective
action pursuant to Section 216(b) of all persons who were
overtime -- eligible Customer Support Representatives and
all overtime -- eligible employees subject to Bloomberg's
rounding policies, who were employed by Bloomberg in the
United States within the three years preceding the filing
of the original complaint;
2. Approving Adams' proposed notice plan and forms;
3. Directing Bloomberg to supply names, last known addresses,
employee identification numbers, and email addresses for
class members, and in the even notice is returned as
undeliverable, telephone numbers, dates of birth, and the
last four digits of social security numbers to assist with
location efforts for those class members; and
4. Tolling the FLSA statute of limitations for potential opt-
in plaintiffs as of the date the original complaint was
filed, September 18, 2020.
Bloomberg filed opposition papers on August 1, 2022. On August 16,
2022, Adams filed reply papers. Earlier today, the Court issued a
Report & Recommendation to Judge Abrams, recommending that
Bloomberg's motion for summary judgment be granted, and that Adams'
second amended complaint be dismissed with leave to amend to
substitute the opt-in plaintiffs.
Sheena Adams brings this action for violations of the Fair Labor
Standards Act ("FLSA") and New York Labor Law against Bloomberg.
Bloomberg L.P. is a privately held financial, software, data, and
media company
A copy of the Court's order dated Feb. 13, 2023 is available from
PacerMonitor.com at https://bit.ly/3J0Oy46 at no extra charge.[CC]
BRIGHTON CORNERSTONE: Fails to Properly Pay Nurses, Wedding Claims
------------------------------------------------------------------
PAULETTE WEDDING, individually and on behalf of all others
similarly situated, Plaintiff v. BRIGHTON CORNERSTONE GROUP, LLC,
Defendant, Case No. 4:23-cv-00028-JHM-HBB (W.D. Ky., February 24,
2023) is a class action against the Defendant for unpaid overtime
wages in violation of the Fair Labor Standards Act and the Kentucky
Wages and Hours Act.
The Plaintiff worked at the Defendant's nursing home as a nurse.
Brighton Cornerstone Group, LLC is an owner and operator of a
nursing home in Owensboro, Kentucky. [BN]
The Plaintiff is represented by:
Mark N. Foster, Esq.
LAW OFFICE OF MARK N. FOSTER, PLLC
P.O. Box 869
Madisonville, KY 42431
Telephone: (270) 213-1303
E-mail: MFoster@MarkNFoster.com
BRINKER INTERNATIONAL: Faces Suit Over Credit Card Data Breach
--------------------------------------------------------------
Brinker International, Inc. disclosed in its Form 10-Q report for
the quarterly period ended December 28, 2022, filed with the
Securities and Exchange Commission on February 1, 2023, that in
fiscal 2018, the company discovered malware at certain of its
Chili's restaurants that may have resulted in unauthorized access
or acquisition of customer payment card data. The company settled
all claims from payment card companies related to this incident.
In connection with this event, the company was also named as a
defendant in a putative class action lawsuit in the United States
District Court for the Middle District of Florida relating to this
incident where plaintiffs assert various claims at its Chili's
restaurants involving customer payment card information and seek
monetary damages in excess of $5.0 million, injunctive and
declaratory relief, and attorney's fees and costs. The oral
argument of our appeal of the district court's class certification
order was held before the Eleventh Circuit Court of Appeals on June
8, 2022, in Jacksonville, Florida.
Brinker International, Inc. is engaged in the ownership, operation,
development, and franchising of the Chili's Grill & Bar and
Maggiano's Little Italy restaurant brands, as well as virtual
brands including It's Just Wings and Maggiano's Italian Classics.
BUILD REALTY: CPM Bid to Certify Class Partly Granted
-----------------------------------------------------
In the class action lawsuit captioned as COMPOUND PROPERTY
MANAGEMENT LLC, on behalf of itself and all others similarly
situated, v. BUILD REALTY, INC., d/b/a, GREENLEAF FUNDING, et al.,
Case No. 1:19-cv-00133-DRC (S.D. Ohio), the Hon. Judge Douglas R.
Cole entered an order granting in part and denying part the
Plaintiffs' motion to certify class.
-- Specifically, the Court grants certification with respect
to the Plaintiffs' civil 1961 Racketeer Influenced and
Corrupt Organizations (RICO) claim (part of Count I) and
breach of fiduciary duties claim (Count II), but denies
certification with respect to Plaintiffs' Ohio Corrupt
Practices Act (part of Count I), civil conspiracy (Count
III), and unjust enrichment (Count IV) claims.
-- The Court appoints the Plaintiffs Compound Property
Management LLC, Leone1, LLC, R&G Cincy Investments, LLC,
Pyramid Investment Group, LLC, and Ratio Models, LLC as
class representatives for the class, and APPOINTS
Plaintiffs Compound Property Management LLC, Leone1, LLC,
R&G Cincy Investments, LLC, and Ratio Models, LLC as class
representatives for the subclass.
-- The Court appoints the Finney Law Firm, LLC, and Markovits,
Stock & DeMarco, LLC as class counsel.
-- The Court orders counsel for the parties to meet and confer
and submit a proposed agreed class notice to this Court 14
days of this Opinion's issuance.
-- If counsel cannot reach agreement, Plaintiffs shall file
their proposed notice by the same deadline, and Defendants
shall file their specific objections to the proposed notice
within 14 days after Plaintiffs file. If desired, the
Plaintiffs may respond to Defendants' objections within
five days after Defendants object.
Finally, the Court finds Plaintiffs lack standing to pursue
their declaratory relief claims and so dismisses
Plaintiffs' Count V, Count VI, and Count VII without
prejudice.
The Plaintiffs contend that the Defendants Build Realty, Inc.,
Edgar Construction, LLC, Cincy Construction, LLC, McGregor
Holdings, LLC, Cowtown Holdings, LLC, Build NKY, LLC, Greenleaf
Support Services, LLC, Build SWO, LLC, Gary Bailey, George
Triantafilou, G2 Technologies, LLC, GT Financial, LLC, and First
Title Agency, Inc. violated the 1961 Racketeer Influenced and
Corrupt Organizations ("RICO") Act, along with the Ohio Corrupt
Practices Act, trust law, and various equitable doctrines, when
they allegedly engaged in a pattern of defrauding investors through
the Defendants' property-flipping business enterprise. Seeking to
vindicate their own rights, as well as the rights of all others
similarly swindled (or so Plaintiffs claim), the Plaintiffs move
the Court to certify this matter as a class action under Federal
Rule of Civil Procedure.
The Plaintiffs, a collection of small real-estate investor LLCs,
allege that the Defendants engaged in a complex scheme to defraud
them and others like them. They contend that the Defendants'
labyrinthine business model maximized opportunities to generate
money for Defendants by violating investor expectations,
contractual agreements, and (at least as to some Defendants)
fiduciary duties.
The Defendants, meanwhile, argue in their Response that they
operated a legitimate enterprise with many satisfied investors and
they fully advised investors of the risks and rewards their system
offered. Because the arrangement's specifics matter, the Court
begins there.
Build Realty provides real estate investors with distressed
properties and private financing to start or grow their business.
A copy of the Court's order dated Feb. 21, 2023 is available from
PacerMonitor.com at https://bit.ly/3KOwtaD at no extra charge.[CC]
CACH LLC: Wins Bid for Summary Judgment in Sanders FDCPA Suit
-------------------------------------------------------------
In the case, LARA M. SANDERS, Plaintiff v. CACH, LLC, et al.,
Defendants, Civil Action No. 19-cv-996 (JXN) (JSA) (D.N.J.), Judge
Julien Xavier Neals of the U.S. District Court for the District of
New Jersey:
a. denies the Plaintiff's motion for summary judgment; and
b. grants the Defendants' motion for summary judgment.
In July 2017, CACH commenced a debt-collection action against the
Plaintiff in the Superior Court of New Jersey, alleging that the
Plaintiff had incurred credit card debt in the amount of $15,372.
On Dec. 4, 2017, CACH and the Plaintiff allegedly settled the
state-court action for $1,000, and the parties executed a
stipulation of discontinuance with prejudice. On Dec. 6, 2017, CACH
accepted the settlement check as a complete resolution of any
further collection activities. In a letter dated Jan. 30, 2018,
Defendant Resurgent Capital notified Plaintiff that her account
with CACH "was settled in full on 12/06/2017."
Despite the parties' settlement agreement, the Plaintiff alleges
that between Jan. 10, 2018, and Feb. 7, 2018, the Defendants
continued to report that she owed a debt. Specifically, on Jan. 10,
2018, the Defendants reported the debt on the Plaintiff's account
as owed in full, less the amount received for the settlement.
On Jan. 23, 2019, the Plaintiff brought the instant suit against
the Defendants as a putative-class action. On May 30, 2019, she
filed an Amended Complaint alleging violations of the Fair Debt
Collection Practices Act ("FDCPA"), 15 U.S.C. Section 1692 et seq.,
and of the Fair Credit Reporting Act ("FCRA"), 15 U.S.C. Section
1681 et seq., and breach of contract.
On Sept. 10, 2019, the Honorable Susan D. Wigenton, U.S.D.J.,
entered an Opinion and Order granting in part and denying in part
the Defendants' motion to dismiss. The claims that survived
dismissal are: (1) a Section 1692e claim brought under the FDCPA
due to the alleged inaccurate credit reporting of a settled
balance; and (2) a Section 1682s-2(b) claim brought under the FCRA
for an alleged failure to properly investigate a dispute and
correct the overstated balance.
Currently pending before the Court are the parties' motions for
summary judgment.
The Defendants seek summary judgment on the grounds that Plaintiff
lacks standing, among other grounds. They contend that the record
here is devoid of any evidence to support that the Plaintiff
suffered an injury as a result of the claimed violations.
Specifically, there is no evidence to support that the Plaintiff
was ever denied credit or suffered any other detriment as a result
of the alleged inaccurate reporting.
In response, the Plaintiff argues that there is a live controversy
as to whether the debt is still owed, that she suffered damages
when Credit Karma received the slander made by the Defendants on
her credit report that the debt is still owed, and that she
suffered actual damages by having to retain an attorney to redress
the bait and switch played by the Defendants.
Judge Neals finds that despite the Plaintiff's contentions, she has
not submitted any evidence that she was ever denied credit or
suffered any other detriment as a result of the alleged inaccurate
reporting. Thus, there is no evidence to support the contention
that the claimed inaccurate information was disseminated to
third-parties, there is no concrete harm. The cost of bringing a
suit and attorney's fees do not also give rise to Article III
standing. Accordingly, the Plaintiff lacks standing to pursue her
claims and the Defendants' motion for summary judgment is granted.
The Plaintiff moves for judgment on her claim that the Defendants
violated Section 1692e of the FDCPA by reporting a settled account
as due and owing. In response, the Defendants contend that the
Plaintiff's claim that the debt stems from a personal credit card
is not dispositive of her consumer status.
Judge Neals holds that the Plaintiff has not submitted sufficient
evidence to establish that the debt was consumer debt. The
Plaintiff also cannot withstand the Defendants' summary judgment
motion because it is her burden to show that the debt in question
is consumer debt. Moreover, she has had every opportunity to seek
production of any documents and information that were relevant to
the parties' claims and defenses. The time to raise discovery
disputes has long passed. The Plaintiff has not put forth
sufficient evidence to demonstrate that the debt incurred was for
personal, family, or household use. Accordingly, her motion for
summary judgment is denied.
A separate Order accompanies the Opinion.
A full-text copy of the Court's Feb. 15, 2023 Opinion is available
at https://tinyurl.com/57thpax4 from Leagle.com.
CELLCO PARTNERSHIP: Allen Sues Over Improper Administrative Fees
----------------------------------------------------------------
PAMELA M. ALLEN; LISA BAKER; BRIANA BELL; KIMBERLY BLAIR; CAROLINE
BONHAM; TAMMY BURKE; SHAUNA CAVALLARO; ERIKA CONLEY; KENDRA
CONOVER; DYLAN CORBIN; RYAN CORBIN; LAURA CURRY; SHAKERA DYER;
RUSSELL FROM; ASHTIN GAMBLIN; ERICKA GARDNER; JAMES HENSLEY; ADAM
KELLER; KRISTA KIRBY; JAN LOMBARD; AARON MAXA; LINDSEY MORAN;
JENNIFER OCAMPO-NEUBAUER; ANGEL PACHECHO; LORI SNYDER; KATHRYN
TAYLOR; ANTHONY VALLECORSA; and BRAD YOUNG, individually and on
behalf of all others similarly situated, Plaintiffs v. CELLCO
PARTNERSHIP d/b/a VERIZON WIRELESS; and VERIZON COMMUNICATIONS
INC., Defendants, Case No. 3:23-cv-01138-ZNQ-RLS (D.N.J., Feb. 27,
2023) is a class action brought on behalf of current and former
Verizon Wireless subscribers challenging a bait-and-switch scheme
perpetrated by Defendants against Verizon Wireless customers.
The Plaintiffs allege in the complaint that Verizon's sign-up
policies and practices deceive customers by prominently advertising
certain flat monthly rates for Verizon post-paid wireless service
plans. After customers sign up, however, Verizon uniformly charges
them higher monthly rates than it advertised and promised by
padding customers' bills each month with a so-called
"Administrative Charge"—currently $3.30 per month for each
line—on top of the advertised and promised price.
The Defendants deceptively increase its monthly rates—and by
extension, its revenue and profit—by unilaterally imposing an
extra-contractual, undisclosed Administrative Charge that is never
agreed to by its customers, in contravention of the laws applicable
to the relationship between Verizon and the class members, says the
suit.
CELLCO PARTNERSHIP, doing business as Verizon Wireless, provides
wireless voice and data services. The Company provides postpaid and
prepaid services, such as text and picture messaging, and mobile
broadband services. [BN]
The Plaintiff is represented by:
Stephen P. DeNittis, Esq.
Joseph A. Osefchen, Esq.
Shane T. Prince, Esq.
DeNITTIS OSEFCHEN PRINCE, P.C.
525 Route 73 North, Suite 410
Marlton, NJ 08053
Telephone: (856) 797-9951
Facsimile: (856) 797-9978
Email: sdenittis@denittislaw.com
josefchen@denittislaw.com
sprince@denittislaw.com
- and -
Daniel M. Hattis, Esq.
Paul Karl Lukacs, Esq.
HATTIS & LUKACS
11711 SE 8th Street, Suite 120
Bellevue, WA 98005
Telephone: (425) 233-8650
Facsimile: (425) 412-7171
Email: dan@hattislaw.com
pkl@hattislaw.com
CENTURYLINK INC: Appeals Class Cert. Ruling in Bultemeyer Suit
--------------------------------------------------------------
CENTURYLINK INC. is taking an appeal from a court order granting
the Plaintiff's renewed motion for class certification in the
lawsuit entitled Lydia Bultemeyer, on behalf of herself and all
others similarly situated, Plaintiff, v. CenturyLink Inc.,
Defendant, Case No. 2:14-cv-02530-SPL, in the U.S. District Court
for the District of Arizona.
The Plaintiff filed this lawsuit against the Defendant for alleged
violation of the Fair Credit Reporting Act (FCRA) by obtaining her
credit report in a specific, systematic manner and without a
permissible purpose.
On Oct. 17, 2022, the Plaintiff filed a renewed motion for class
certification after her motion to certify class was denied without
prejudice by Judge Steven P. Logan on Apr. 7, 2022.
On Feb. 2, 2023, the Court granted the Plaintiff's renewed motion
for class certification through an Order entered by Judge Logan.
The Court certified a class defined as every individual in the
United States about whom Defendant CenturyLink obtained a consumer
credit report using the personal information the individual entered
into CenturyLink's ecommerce website from November 14, 2012 through
November 14, 2014, and who did not sign an arbitration agreement or
class action waiver with CenturyLink.
The appellate case is captioned Lydia Bultemeyer v. CenturyLink
Inc., Case No. 23-80015, in the United States Court of Appeals for
the Ninth Circuit, filed on February 22, 2023. [BN]
Plaintiff-Respondent LYDIA BULTEMEYER, on behalf of herself and all
others similarly situated, is represented by:
Andrew J. Brown, Esq.
LAW OFFICES OF ANDREW J. BROWN
501 W. Broadway, Suite 1490
San Diego, CA 92101
Telephone: (619) 501-6550
- and -
Russell S. Thompson, IV, Esq.
THOMPSON CONSUMER LAW GROUP, PC
11445 E. Via Linda, Suite 2, Box 492
Scottsdale, AZ 85259
Telephone: (602) 388-8898
Defendant-Petitioner CENTURYLINK INC. is represented by:
Kasey Curtis, Esq.
REED SMITH, LLP
355 S. Grand Avenue, Suite 2900
Los Angeles, CA 90071
- and -
Albert E. Hartmann, Esq.
REED SMITH, LLP
10 S. Wacker Drive, 40th Floor
Chicago, IL 60606
Telephone: (312) 207-2821
- and -
Michael O'Neil, Esq.
REED SMITH, LLP
10 S. Wacker Drive, 40th Floor
Chicago, IL 60606
Telephone: (312) 207-2879
CHARLES SCHWAB: TD Ameritrade Class Suit Stayed
-----------------------------------------------
Charles Schwab Corp. disclosed in its Form 10-K Report for the
fiscal period ending December 31, 2022 filed with the Securities
and Exchange Commission on February 24, 2023, that the Delaware
Court of Chancery stayed the TD Ameritrade class suit, granted
defendants' motion, and denied plantiff's renewed class
certification motion.
On May 12, 2020, a putative class action lawsuit related to the
acquisition was filed in the Delaware Court of Chancery (Hawkes v.
Bettino et al.) on behalf of a proposed class of TD Ameritrade's
stockholders, excluding, among others, TD Bank. On February 5,
2021, plaintiff filed an amended complaint naming an officer and
certain directors of TD Ameritrade at the time the acquisition was
approved, as well as TD Bank, certain TD Bank related entities, and
Schwab. The amended complaint asserts separate claims for breach of
fiduciary duty by the TD Ameritrade officer, certain members of the
TD Ameritrade board and TD Bank, and against Schwab for aiding and
abetting such breaches, the allegation being that the amendment of
the IDA agreement TD Bank negotiated directly with Schwab allowed
TD Bank to divert merger consideration from TD Ameritrade's
minority public stockholders. Plaintiff seeks to recover monetary
damages, costs and attorneys' fees.
Schwab and the other defendants consider the allegations to be
entirely without merit and on April 29, 2021, the defendants filed
motions to dismiss the amended complaint. On March 25, 2022, the
parties filed a joint stipulation proposing a settlement of the
lawsuit on a class basis.
On September 21, 2022, the court entered final judgment and
approved the terms of the settlement, under which Schwab is paying
an immaterial amount on behalf of the former TD Ameritrade officer
and director defendants pursuant to indemnification obligations.
The Charles Schwab Corporation is an American multinational
financial services company.[BN]
CIGNA HEALTH: Overcharges Medical Bills, Srednicki Suit Alleges
---------------------------------------------------------------
AUBREY SREDNICKI, individually and on behalf of all others
similarly situated, Plaintiff v. CIGNA HEALTH AND LIFE INSURANCE
COMPANY, Defendant, Case No. 3:23-cv-00243 (D. Conn., February 24,
2023) is a class action against the Defendant for violations of the
Employee Retirement Income Security Act of 1974.
According to the complaint, the Defendant is engaged in common
fraudulent and deceptive scheme to artificially inflate medical
costs causing consumers to pay more than they should have paid for
medically necessary services. The Defendant violated its health
plans and breached its fiduciary duties by secretly determining
that the Plaintiff and similarly situated consumers must pay
inflated cost-sharing payments, and secretly collecting those
inflated payments from them. Through this fraudulent billing
scheme, the Defendant and/or its agents overcharged its customers
for medical services, the suit alleges.
Cigna Health and Life Insurance Company is a provider of life and
health insurance policies, with its principal place of business in
Bloomfield, Connecticut. [BN]
The Plaintiff is represented by:
Robert A. Izard, Esq.
Craig A. Raabe, Esq.
Christopher M. Barrett, Esq.
Seth R. Klein, Esq.
IZARD, KINDALL & RAABE, LLP
29 South Main Street, Suite 305
West Hartford, CT 06107
Telephone: (860) 493-6292
Facsimile: (860) 493-6290
E-mail: rizard@ikrlaw.com
craabe@ikrlaw.com
cbarrett@ikrlaw.com
sklein@ikrlaw.com
- and -
William H. Narwold, Esq.
MOTLEY RICE LLC
One Corporate Center
20 Church Street, 17th Floor
Hartford, CT 06103
Telephone: (860) 882-1681
Facsimile: (860) 882-1682
E-mail: bnarwold@motleyrice.com
mjasinski@motleyrice.com
CORELOGIC CREDCO: Fernandez Seeks to Certify Classes
----------------------------------------------------
In the class action lawsuit captioned as Marco A. Fernandez,
individually and as a representative of the class, V. CoreLogic
Credco, LLC, Case No. 3:20-cv-01262-JM-AGS (S.D. Cal.), the
Plaintiff asks the Court to enter an order certifying the following
classes
-- Inaccurate Reporting Fair Credit Reporting Act (FCRA)
Class:
"All individuals who were the subject of a report:
(1) containing Defendant's ProScan OFAC product
(2) that Defendant disseminated to a third party from June
3, 2015 to February 15, 2022, and
(3) that included Defendant's Instant Merge product
(4) where the Instant Merge data was procured for a credit
purpose, and
(5) that reported at least one "Possible Match" to the OFAC
List, and
(6) where there is not a match between the (a) date of
birth, (b) address, or (c) social security number
associated with the subject of the report and the
corresponding information regarding any individual or
entity on the OFAC List to whom the subject of the
report was reported as a "Possible Match."
-- Failure to Disclose FCRA Class:
"All individuals who (1) were the subject of a report
containing Defendant's ProScan OFAC product, that Defendant
disseminated to a third party from June 3, 2015 to the date
the Class is certified, and that reported at least one
"Possible Match" to the OF AC List, and (2) to whom
Defendant provided what Defendant categorized as either (a)
a consumer file disclosure or (b) a consumer report copy.
-- Failure to Identify FCRA Class:
"All individuals to whom, from June 3, 2015 to June 30,
2021, Defendant provided what the Defendant categorized as
a consumer file disclosure."
In the alternative, the Plaintiff requests that the Court certify
the FCRA Classes with the respective Class Period beginning on June
3, 2018.
The Plaintiff also seeks to certify state law claims for injunctive
relief only under Fed. R. Civ. P. 23(b )(2). The Plaintiff seeks to
certify the following class:
-- Inaccurate Reporting College Cost Reduction and Access Act
(CCRAA) Class:
"All individuals who were the subject of a report: (1)
containing Defendant's ProScan OFAC product (2) that
Defendant disseminated to a third party from December 26,
2014 to February 15, 2022, and (3) that included
Defendant's Instant Merge product ( 4) where the Instant
Merge data was procured for a credit purpose, and (5) that
reported at least one "Possible Match" to the OF AC List,
and (6) where there is not a match between the (a) date of
birth, (b) address, or (c) social security number
associated with the subject of the report and the
corresponding information regarding any individual or
entity on the OFAC List to whom the subject of the report
was reported as a "Possible Match.""
In the alternative, the Plaintiff requests that the Court certify
the Inaccurate Reporting CCRAA Class with a Class Period beginning
on June 3, 2018.
The Plaintiff seeks to certify the following classes under the UCL
for Defendant's unlawful conduct, i.e.: (1) for the Inaccurate
Reporting UCL Class, Defendant's violation of 15 U.S.C. section
168le(b) and Cal. Civ. Code section 1785.14(b); and (2) for the 26
Failure to Disclose UCL Class, Defendant's violation of 15 U.S.C.
section 168lg(a).
-- Inaccurate Reporting UCL Class:
"All individuals who were the subject of a report: (1)
containing Defendant's ProScan OFAC product (2) that
the Defendant disseminated to a third party from June 3,
2016 to February 15, 2022, and (3) that included
Defendant's Instant Merge product ( 4) where the Instant
Merge data was procured for a credit purpose, and (5) that
reported at least one "Possible Match" to the OFAC List,
and (6) where there is not a match between the (a) date of
birth, (b) address, or (c) social security number
associated with the subject of the report and the
corresponding information regarding any individual or
entity on the OFAC List to whom the subject of the report
was reported as a "Possible Match."
-- Failure to Disclose UCL Class:
"All individuals who (1) were the subject of a report
containing Defendant's ProScan OFAC product, that Defendant
disseminated to a third party from June 3, 2016 to the date
the Class is certified, and that reported at least one
"Possible Match" to the OF AC List, and (2) to whom
Defendant provided what Defendant categorized as either (a)
a consumer file disclosure or (b) a consumer report copy."
The Plaintiff will further move the Court to appoint Plaintiff as
Class Representative and Berger Montague PC as Class Counsel.
CoreLogic Credco is a third-party consumer credit reporting agency
that provides merged credit reports to a number of mortgage
lenders.
A copy of the Court's order dated Feb. 13, 2023 is available from
PacerMonitor.com at https://bit.ly/3KNwtb3 at no extra charge.[CC]
The Plaintiff is represented by:
Sophia M. Rios, Esq.
E. Michelle Drake, Esq.
John G. Albanese, Esq.
Ariana B. Kiener, Esq.
BERGER MONTAGUE PC
401 B Street, Suite 2000
San Diego, CA 92101
Telephone: (619) 489-0300
Facsimile: (215) 875-4604
E-mail: srios@bm.net
emdrake@bm.net
jalbanese@bm.net
akiener@bm.net
COSTCO WHOLESALE: Appeal From Intervention Denial in Nevarez Nixed
------------------------------------------------------------------
In the case, SILVERIO NEVAREZ, et al., Plaintiffs and Respondents
v. COSTCO WHOLESALE CORPORATION, Defendant and Respondent; MEGAN
ROUGH, Movant and Appellant, Case No. B316817 (Cal. App.), the
Court of Appeals of California for the Second District, Division
Seven, dismisses as moot Megan Rough's appeal from the order
denying her motions to intervene in the class action lawsuit filed
by the Nevarez Plaintiffs against Costco.
Rough appeals from an order denying her motions to intervene in the
class action lawsuit filed by Silverio Nevarez and Effren Correa
(Nevarez plaintiffs) against Costco, alleging Labor Code violations
and a cause of action under the Private Attorneys General Act of
2004 (PAGA; Lab. Code, Section 2698 et seq.).
On March 25, 2019, the Nevarez Plaintiffs filed the instant lawsuit
as a putative class action against Costco in the Los Angeles County
Superior Court alleging Labor Code violations and a PAGA claim.
After Costco removed the action to federal court, on June 10, 2019,
the Nevarez Plaintiffs filed a first amended class action complaint
in which they sought to represent "all current and former hourly
paid workers employed by Costco in California from March 25, 2015
to the present."
The Nevarez Plaintiffs alleged causes of action for (1) failure to
pay overtime wages; (2) failure to provide itemized wage
statements; (3) failure to pay wages upon an employee's separation;
(4) failure to pay minimum wages; (5) failure to provide meal
periods; (6) unfair business practices in violation of Business and
Professions Code section 17200 et seq.; and (7) civil penalties
under PAGA. The lawsuit alleged Costco had exit security procedures
that required store warehouse employees after clocking out at the
end of their shifts or prior to a meal break to wait for a manager
to arrive at an exit location and check their belongings before
they could leave, resulting in unpaid wages and shortened meal
periods.
On Dec. 26, 2019, the district court denied the Nevarez Plaintiffs'
motion for class certification. It found there was a written policy
prohibiting off-the-clock work and insufficient evidence of a
systemic unwritten policy that resulted in unpaid work. Further,
the evidence showed Costco had different security procedures at
individual warehouses, and it implemented a pro-employee rounding
policy that would complicate calculation of whether any security
delay resulted in uncompensated work.
The district court subsequently granted the Nevarez Plaintiffs'
motion to dismiss their individual Labor Code claims without
prejudice. On March 9, 2020, the district court declined to
exercise jurisdiction over the remaining claims and remanded the
Nevarez action to state court.
On May 28, 2019, Rough filed an individual and putative class
action complaint against Costco in Solano County Superior Court.
Rough alleged causes of action for (1) failure to pay minimum and
regular wages; (2) failure to pay overtime wages; (3) failure to
provide accurate itemized wage statements; (4) failure to timely
pay wages upon separation of employment; and (5) violation of
Business and Professions Code section 17200 et seq. Rough alleged,
similar to the Nevarez Plaintiffs, that warehouse employees who
worked closing shifts were required at the end of their shifts to
wait for a manager to meet them at an exit location and check their
bags before they could leave. The employees were not compensated
for the additional time required to undergo the exit security
procedures.
Rough sought to represent a "Closing-Shift class," which she
defined as "all current and former non-exempt employees who worked
for Costco in the State of California at one of Costco's warehouse
stores and who worked one or more closing shifts at any time from
four years prior to the filing of this Complaint through the
present.'"
Costco removed the Rough action to federal court. It subsequently
moved to change venue to consolidate the Rough action with the
Nevarez action, but the district court denied the motion. On Aug.
12, 2020, Rough filed a first amended individual and class action
complaint, which added new allegations concerning Costco's
three-minute rounding policy, under which Costco "will
automatically round back 3 minutes after the start of shift, round
forward 3 minutes before the end of shift, and round back 3 minutes
at the end of a 30-minute lunch." Rough alleged the rounding
benefitted employees and provided additional compensation but
Costco failed to consider the additional compensation in
calculating overtime wages. Costco therefore deprived employees "of
full compensation for all overtime[] hours worked at the correct
rate of pay for overtime."
On May 18, 2021, Costco and the Nevarez Plaintiffs entered into a
settlement agreement resolving the class and PAGA claims relating
to Costco's exit security procedures. The settlement agreement
defined "Class Members" as "all individuals whom Costco employed in
California as non-exempt warehouse employees who worked one or more
closing shifts at any time during the Settlement Period, except any
individual who has sued Costco on any claim to be released or
precluded as part of this Agreement."
Costco agreed to pay a "Gross Settlement Amount" of $8.75 million
comprised of $7.5 million in cash payments and $1.25 million in the
form of Costco shop cards. The agreement specified that in no event
will Costco, absent its further agreement, be obligated to pay more
than that amount, except to the extent of legally required employer
taxes.
Under the agreement, the cash payments included payments to class
members, any "Service Award" to the named plaintiffs a PAGA penalty
amount, attorneys' fees and costs to counsel for the Nevarez
plaintiffs, and administrative costs. The agreement also specified
how payments to individual class members would be calculated.
Costco agreed not to oppose a request by the Nevarez Plaintiffs'
counsel for attorneys' fees "in an amount up to one third of the
Gross Settlement Amount," plus litigation costs and a service award
of $7,500 each for Nevarez and Correa. Further, the parties would
request approval of a $750,000 PAGA payment, 75% of which would go
to the Labor and Workforce Development Agency (LWDA) and 25% to
aggrieved employees. Costco and the Nevarez Plaintiffs agreed the
settlement administrator would send notice of the settlement to the
class members. In addition, the parties contemplated that the
settlement administrator would pay the service awards, attorneys'
fees, LWDA payment, and individual payments 30 days after the
"Effective Date.
On June 25, 2021, the Nevarez Plaintiffs moved for preliminary
approval of the class action settlement and conditional class
certification for settlement purposes. In his supporting
declaration, Steven M. Tindall, counsel for the Nevarez plaintiffs,
stated the net settlement fund would be approximately $5 million
after deductions from the $8.75 million gross settlement amount of
approximately $560,000 (final payment to the LWDA for the PAGA
penalties), $15,000 (service payments to the Nevarez plaintiffs),
$3 million (to the Nevarez plaintiffs' attorneys for attorneys'
fees and costs), and $130,000 (administration costs). Class members
receiving a settlement of $15 or less would receive payment in the
form of a shop card, while the remainder of the class would receive
payment in cash and a shop card.
On July 1, 2021, Rough filed a motion to intervene in the Nevarez
action, arguing she met the requirements for mandatory
intervention. She argued that if the Court approved the Nevarez
action settlement, the putative class members of the Rough action
would be greatly prejudiced because their claims will be
extinguished for substantially lesser recovery than the claims are
worth, particularly should the class be certified in the Rough
action. Further, Rough's interests were not adequately represented
by the parties to the Nevarez action settlement. Rough requested
alternatively that the trial court grant permissive intervention.
On Sept. 28, 2021, the district court granted Costco's motion for
partial summary judgment as to Rough's claims involving Costco's
three-minute rounding policy and denied Rough's motion for class
certification of the remaining proposed classes in the Rough
action. With respect to Rough's motion for class certification
regarding the off-the clock claims for Costco's exit security
procedures, it found Rough failed to establish a companywide policy
or practice, and therefore common issues did not predominate.
On Oct. 4, 2021, Rough filed a second amended motion to intervene
in the Nevarez action, reiterating many of the objections raised in
her prior motions as to adequate representation, the settlement
agreement releases, and notices to class members. She also argued
she intended to seek attorneys' fees and costs from the Nevarez
action settlement.
On Oct. 14, 2021, Costco and the Nevarez Plaintiffs filed separate
oppositions to Rough's second amended motion to intervene. After a
hearing on Oct. 27, 2021, the trial court denied Rough's July 1,
2021 motion and her Oct. 4, 2021 second amended motion to intervene
with prejudice. On Nov. 30, 2021 Rough appealed the October 27,
2021 order.
On May 3, 2022 the trial court granted the Nevarez Plaintiffs'
motion for final settlement approval and entered judgment. The
settlement class included all individuals whom Costco employed in
California as non-exempted warehouse employees who worked one or
more closing shifts at any time during the Settlement Period (March
25, 2015, through April 12, 2021), except any individual who has
sued Costco or any claims to be released or precluded as part of
this Agreement." It approved payment of approximately $3 million in
attorneys' fees and costs, $168,000 in administrative costs, and
$7,500 service payments to Nevarez and Correa.
On Jan. 5, 2023, the Court of Appeals requested the parties file
supplemental letter briefs addressing whether the settlement
proceeds had been partially or fully distributed, and whether in
light of entry of judgment and distribution of some or all of the
settlement proceeds we could provide Rough effective relief.
On Jan. 12, 2023, Costco filed a second motion for judicial notice,
or in the alternative, Costco requests the Court of Appeals takes
judicial notice of the declaration of Carole Thompson filed in the
trial court in the Nevarez action on Jan. 11, 2023 regarding final
accounting and disbursement of class action settlement re:
settlement distribution hearing" scheduled for Feb. 7, 2023. The
Court of Appeals takes judicial notice of the filing of the
Thompson declaration, but not the statements in the declaration.
Thompson is the supervising case manager for CPT Group, Inc., which
was selected by the parties in the Nevarez action to provide notice
of the settlement and to process settlement payments, exclusions,
and objections. According to Thompson, CPT opened a settlement
account that Costco funded on June 6, 2022 with approximately $7.6
million.
On June 21, 2022 CPT paid from the settlement fund 96,980 cash
awards to class members (by checks in varying dollar amounts),
approximately $560,000 to the LWDA, $3 million for attorneys' fees
and costs; $15,000 for service awards, $168,000 for administration
fees, $21,000 for state employment taxes, and $278,000 for federal
taxes. In addition, Costco provided CPT with $1.25 million in
Costco shop cards to be distributed to specified class members. On
June 21, 2022 CPT distributed 96,680 shop cards to class members
and aggrieved employees.
On Jan. 10, 2023, pursuant to the settlement agreement, CPT mailed
checks for approximately $284,000 each to two legal aid
organizations. The two checks represented the total amount of
uncashed and abandoned checks that had been distributed. According
to Thompson, once the checks to the legal aid organizations are
cashed, "there will be no funds remaining in the Settlement Fund."
Because a final judgment has been entered and settlement proceeds
distributed, the Court of Appeals dismisses the appeal as moot. It
finds that the cases relied on by Rough in her supplemental letter
brief do not assist Rough because they do not address mootness.
Rough is correct that she was not required to move to vacate the
judgment under section 663, then appeal denial of that motion, to
have appellate standing. But Rough elected not to move to vacate
the judgment at her own peril because an appeal from an order
denying intervention stays only those proceedings pertaining to the
subject matter of the appeal under section 916, subdivision (a),
namely, the question of appellant's intervention. She could have
moved to vacate the judgment under section 663 as an "aggrieved"
person.
Further, even without filing a motion to vacate the judgment, Rough
could have sought from this court a stay of the trial court
proceedings pending her appeal. Because she did not protect her
rights by filing a motion to vacate the judgment or requesting a
stay of the trial court proceedings, the Court of Appeals cannot
now grant Rough effective relief. Rough cites no authority for
treating her motion to intervene as an objection to the settlement
agreement.
Alternatively, Rough urges the Court of Appeals not to find her
appeal moot because Costco and the Nevarez Plaintiffs were at fault
in allowing the settlement funds to be distributed without
resolution of Rough's appeal. But nothing required Costco or the
Nevarez Plaintiffs to delay payments to the class members and
others to enable Rough's appeal to proceed. Rather, it was Rough
who had the ability to delay implementation of the settlement
agreement by filing a motion to stay the trial court proceedings or
a motion to vacate the judgment. The Court of Appeals therefore
dismisses Rough's appeal as moot because it cannot grant her
effective relief.
Accordingly, the appeal is dismissed as moot. Costco and the
Nevarez Plaintiffs are entitled to recover their costs on appeal.
A full-text copy of the Court's Feb. 15, 2023 Opinion is available
at https://tinyurl.com/mt3xysmz from Leagle.com.
GrahamHollis, Graham S.P. Hollis, Nathan Reese, and Nora
Steinhagen, for the Movant and Appellant.
Gibbs Law Group, Steven Tindall -- smt@classlawgroup.com -- Amy M.
Zeman -- amz@classlawgroup.com -- and Jeffrey Kosbie --
jbk@classlawgroup.com; The Gould Law Firm, Michael A. Gould --
Michael@wageandhourlaw.com -- and Aarin Zeif, for the Plaintiffs
and Respondents.
Seyfarth Shaw, David D. Jacobson -- djacobson@seyfarth.com -- and
Kiran A. Seldon -- kseldon@seyfarth.com -- for the Defendant and
Respondent.
COSTCO WHOLESALE: Rancho Aloha Wins Bid for Class Certification
---------------------------------------------------------------
In the class action lawsuit captioned as BRUCE CORKER d/b/a RANCHO
ALOHA, et al., v. COSTCO WHOLESALE CORPORATION, et al., Case No.
2:19-cv-00290-RSL (W.D. Wash.), the Hon. Judge Robert S. Lasnik
entered an order granting the Plaintiffs' motion for class
certification.
The following class is certified pursuant to Fed. R. Civ. P. 23(a)
and 4 23(b)(3):
"All persons and entities who farmed Kona coffee in the Kona
District and then sold their coffee from February 27, 2015 to
the present."
The Plaintiffs' counsel shall present a form and plan of notice to
the class, pursuant to Rule 23(c), no later than 21 days from the
issuance of this Order.
The Court finds that the named plaintiffs' claims are "reasonably
co-extensive with those of absent class members" and that
typicality therefore exists.
L&K and Kihnke assert that there is significant opposition to this
litigation from within the class, suggesting that some members
would prefer to control the prosecution of their own claims. The
near universal approval of and participation in the settlements
plaintiffs have so far achieves shows otherwise.
There is no other pending litigation concerning the controversy at
issue, and this Court can hear all of the claims in this forum.
With regards to the fourth factor, there will likely be some
difficulties in managing this case as a class action. Defendants
will likely put on individualized evidence in an attempt to
invalidate plaintiffs' damages model, but the quantum and scope of
that evidence will be significantly less than if each class member
brought his or her own lawsuit.
The named plaintiffs grow Kona coffee in the Kona District of the
Big Island of Hawaii. They filed this lawsuit alleging that various
distributors, wholesalers, and retailers sell ordinary commodity
coffee labeled as "Kona" coffee, to the detriment of those who grow
actual Kona coffee.
MNS Ltd., the only defendant who has not settled or declared
bankruptcy, is a retailer who, plaintiffs allege, has violated the
Lanham Act by jointly marketing coffee products that are falsely
labeled as originating from Kona without making any effort to
verify the grade, 8 purity, or origin of the coffee.
Costco Wholesale Corporation is an American multinational
corporation which operates a chain of membership-only big-box
retail stores
A copy of the Court's order dated Feb. 13, 2023 is available from
PacerMonitor.com at https://bit.ly/3IYE1pM at no extra charge.[CC]
CREDIT SUISSE: Loses Bid to Seal & Redact Judicial Documents
------------------------------------------------------------
In the class action lawsuit captioned as SET CAPITAL LLC, et al.,
Individually and on Behalf of All Others Similarly Situated, v.
CREDIT SUISSE GROUP AG, CREDIT SUISSE AG, CREDIT SUISSE
INTERNATIONAL, TIDJANE THIAM, DAVID R. MATHERS, JANUS HENDERSON
GROUP PLC, JANUS INDEX & CALCULATION SERVICES LLC, and JANUS
DISTRIBUTORS LLC d/b/a JANUS HENDERSON DISTRIBUTORS, Case No.
1:18-cv-02268-AT-SN (S.D.N.Y.), the Hon. Judge Analisa Torres
entered an order denying Defendants motion to seal and redact
judicial documents because they are relevant to the Court's
decisions on the motions for class certification and to exclude
expert testimony.
The Defendants do not otherwise argue that the documents they
request to seal and redact are not judicial documents. To the
contrary, the Defendants state that "in order to adequately set
forth the arguments" in their memoranda, they "must reference"
these documents.
The Court concludes that Defendants have not met their burden to
warrant sealing of the documents submitted in relation to their
class certification opposition and motion to exclude.
On October 14, 2022, Defendants Credit Suisse Group AG, Credit
Suisse AG, Credit Suisse International, Tidjane Thiam, and David R.
Mathers filed two motions seeking the sealing and redaction of
documents related to Defendants' opposition to Plaintiffs' motion
for class certification and Defendants' motion to exclude the
expert opinions of Joshua Mitts.
Credit Suisse is a global investment bank and financial services
firm founded and based in Switzerland.
A copy of the Court's order dated Feb. 13, 2023 is available from
PacerMonitor.com at https://bit.ly/3IWQhaw at no extra charge.[CC]
CUTTERS WIRELINE: Bid to Vacate Judgment & Award of Costs Denied
----------------------------------------------------------------
In the class action lawsuit captioned as THAD LINDSAY, on behalf of
himself and all similarly situated persons, v. CUTTERS WIRELINE
SERVICE, INC., a Utah corporation; MESA WIRELINE, LLC, a Delaware
limited liability company; LONE WOLF WIRELINE, INC., a Utah
corporation; WIRELINE SPECIALITES, INC., a New Mexico corporation;
CAPITAN CORPORATION, a Texas corporation; and CAPITAN WIRELINE,
LLC, a Texas limited liability company, collectively d/b/a Cutters
Wireline Group, Case No. 1:17-cv-01445-PAB-SKC (D. Colo.), the Hon.
Judge Philip A. Brimmer entered an order denying the plaintiff's
motion to vacate judgment and award of costs.
The Plaintiff argues that the Court's award of costs to defendants
should be vacated because the case was dismissed without prejudice
and plaintiff believes costs were awarded in error.
The Defendants respond that a court has the discretion to award
costs to the prevailing party regardless of whether the case was
dismissed with or without prejudice.
The Plaintiff does not explain why defendants would not be the
prevailing party. The Plaintiff implies that a party does not
prevail where a claim is dismissed without prejudice. The Colorado
Tenth Circuit has ruled that a district court can find that a party
is the prevailing party whether the claims against it are dismissed
with or without prejudice.
The Plaintiff filed this action on June 14, 2017 bringing
individual, class, and collective claims of violations of the Fair
Labor Standards Act (FLSA) claims for violations of state wage and
hours laws, and a breach of contract claim.
On August 27, 2018, the Court granted conditional class
certification on plaintiff's FLSA claim. The Plaintiff filed a
motion to certify a Federal Rule of Civil Procedure 23 class, which
the Court denied.
Final judgment was entered on March 31, 2022. The Defendants were
awarded their costs pursuant to Fed. R. Civ. P. 54(d)(1) and
D.C.COLO.LCivR 54.1.
On April 28, 2022, plaintiff moved "under Fed. R. Civ. P. 59 and/or
60" to vacate the Court's award of costs to defendant. The
Defendants oppose plaintiff's motion.
Cutters Wireline provides electrical wireline services.
A copy of the Court's order dated Feb. 21, 2023 is available from
PacerMonitor.com at https://bit.ly/3YeiwWH at no extra charge.[CC]
DELTA AIR: Lomas Class Cert Bid Granted in Part
-----------------------------------------------
In the class action lawsuit captioned as Frankie Lomas, et al., v.
Delta Air Lines, Inc., et al., Case No. 2:20-cv-00786-JAK-SK (C.D.
Cal.), the Hon. Judge John A. Kronstadt entered an order granting
the motion for class certification with respect to the Plaintiffs'
trespass cause of action and denying without prejudice with respect
to the Plaintiffs' nuisance cause of action.
The class is defined as follows:
"All persons who, on January 14, 2020, owned, resided in, or
rented one of the properties included on the list of affected
residences prepared by John A. Kilpatrick."
The class excludes counsel representing the class and all
persons employed by said counsel, governmental entities,
Delta Air Lines, Inc., its officers, directors, affiliates,
legal representatives, employees, co-conspirators,
successors, subsidiaries, and assigns, any judicial officer
presiding over this matter, the members of their immediate
families and judicial staff, and any other individual whose
interests are antagonistic to other class members, including
class members who sold their properties after the incident
without disclosing it to the purchaser in advance of the
sale.
The class also excludes any person who has filed a claim in
court against Delta Air Lines, Inc. arising out of the
January 14, 2020 fuel jettison, other than the named
plaintiffs in this action: Frankie Lomas, Roxanda Yancor,
Jose Alvarado, and Maria Alvarado.
The parties do not dispute that Delta is an airline that operates
commercial flights, including flight No.
DL89 ("DL89"), which left Los Angeles International Airport ("LAX)
for Shanghai, China on January 14, 2020. Nor do the parties dispute
that DL89 "jettisoned fuel on its approach back to LAX after an
engine malfunction on takeoff."
On March 14, 2022, the Class Plaintiffs filed a motion for class
certification. Delta filed an opposition on May 2, 2022.
On the same date, Delta also filed three motions to strike
testimony offered in support of the Motion.
Delta Air Lines one of the major airlines of the United States and
a legacy carrier. One of the world's oldest airlines in operation,
Delta is headquartered in Atlanta, Georgia.
A copy of the Court's order dated Feb. 8, 2023 is available from
PacerMonitor.com at https://bit.ly/3m14Bpx at no extra charge.[CC]
ELECTRICAL MILLSGUT: Fails to Pay Proper Wages, Borjas Alleges
--------------------------------------------------------------
ALBERT A. BORJAS, individually and on behalf of all others
similarly situated, Plaintiff v. ELECTRICAL MILLSGUT ENTERPRISE
LLC; and SERGIO MILLAN, Defendants, Case No. 6:23-cv-00350 (M.D.
Fla., Feb. 27, 2023) seeks to recover from the Defendants unpaid
wages and overtime compensation, interest, liquidated damages,
attorneys' fees, and costs under the Fair Labor Standards Act.
Plaintiff Borjas was employed by the Defendants as electrician.
ELECTRICAL MILLSGUT ENTERPRISE LLC provides residential,
commercial, & industrial electrical services. [BN]
The Plaintiff is represented by:
Zandro E. Palma, Esq.
ZANDRO E. PALMA, PA.
9100 S. Dadeland Blvd. Suite 1500
Miami, FL 33156
Telephone: (305) 446-1500
Facsimile: (305) 446-1502
Email: zep@thepalmalawgroup.com
ENOCHIAN BIOSCIENCES: Securities Class Suit Pending in California
-----------------------------------------------------------------
Enochian Biosciences Inc. disclosed in its Form 10-K Report for the
fiscal period ending June 30, 2022 filed with the Securities and
Exchange Commission on February 27, 2023, that the securities class
suit filed in the United States District Court for the Central
District of California remains pending.
On July 28, 2022, a securities class action complaint was filed by
purported stockholders of the Company in the United States District
Court for the Central District of California against the Company
and certain of its current and former officers and directors. The
complaints allege, among other things, that the defendants violated
Sections 10(b) and 20(a) of the Securities Exchange Act of 1934, as
amended, and Rule 10b-5 thereunder, by making false and misleading
statements and omissions of material fact in connection with the
Company's relationship with Serhat Gümrükcü and its commercial
prospects.
The complaints seek unspecified damages, interest, fees, and costs.
The defendants have not yet responded to the complaints.
Enochian is a pre-clinical stage biotechnology company that is
developing cures and treatment for HIV, HBV, influenza,
coronavirus, and cancer. The Individual Defendants are officers of
the company.[BN]
EQUIFAX INFORMATION: Denial of Bid to Toss Arbitration Award Upheld
-------------------------------------------------------------------
In the case, ROBERT RADCLIFFE, CHESTER CARTER, MARIA FALCON,
CLIFTON C. SEALE III, ARNOLD LOVELL, Jr., Plaintiff-Appellants, and
CHARLES JUNTIKKA AND ASSOCIATES LLP, Counsel for Plaintiffs,
Appellant, and JOSE HERNANDEZ, KATHRYN PIKE, LEWIS MANN, ROBERT
RANDALL, BERTRAM ROBISON, Plaintiff-Appellees, and CADDELL &
CHAPMAN, Counsel for Plaintiffs; LIEFF, CABRASER, HEIMANN &
BERNSTEIN LLP, Counsel for Plaintiffs; FRANCIS MAILMAN SOUMILAS,
P.C., Counsel for Plaintiffs; NATIONAL CONSUMER LAW CENTER, Counsel
for Plaintiffs; CONSUMER LITIGATION ASSOCIATES, P.C., Counsel for
Plaintiffs; CALLAHAN, THOMPSON, SHERMAN & CAUDILL LLP, Counsel for
Plaintiffs; PUBLIC JUSTICE, P.C., Counsel for Plaintiffs, Appellees
v. EQUIFAX INFORMATION SERVICES, LLC; EXPERIAN INFORMATION
SOLUTIONS, INC.; TRANS UNION LLC, Defendants, Case No. 21-56284
(9th Cir.), the Court of Appeals for the Ninth Circuit affirms the
district court's denial of Counsel Charles Juntikka's motion to
vacate an arbitration award.
Juntikka appeals the district court's denial of his motion to
vacate an arbitration award that allocated attorneys' fees among
the class counsel from a class action against three
credit-reporting companies. He contends that the arbitrator
exceeded her powers in violation of the Federal Arbitration Act
(FAA), 9 U.S.C. Sections 1-16, when she relied on equitable
considerations to fashion her final fee award instead of applying
the terms of the class counsels' fee allocation agreements.
The Ninth Circuit reviews a district court's decision to confirm an
arbitration award by accepting findings of fact that are not
clearly erroneous but deciding questions of law de novo. It holds
that the district court properly denied Juntikka's motion to vacate
the arbitration award. It explains that the FAA enumerates limited
grounds on which a federal court may vacate, modify, or correct an
arbitral award. Arbitrators "exceed their powers" under Section
10(a)(4) of the FAA when the award is 'completely irrational' or
exhibits a manifest disregard of the law.'
In the case, the Ninth Circuit finds that the arbitrator did not
show manifest disregard of the law when she applied equitable
considerations in arriving at the fee award. The arbitrator relied
on the Ninth Circuit's precedent in In re FPI/Agretech Securities
Litigation, 105 F.3d 469 (9th Cir. 1997), and Vizcaino v. Microsoft
Corp., 290 F.3d 1043 (9th Cir. 2002), to conclude that a court may
reject a fee allocation agreement if it rewards an attorney in
disproportion to the benefits that attorney conferred upon the
class.
The arbitrator provided copious evidence that Juntikka and his
partner, Dan Wolf, failed to confer a net benefit on the class from
their pre-objection efforts. Because the arbitrator relied on
Agretech and Vizcaino in determining the ultimate award, she did
not dispense her own brand of industrial justice, and therefore did
not exceed her powers in violation of Section 10(a)(4).
Juntikka argues that the arbitrator's reliance on Agretech is
misplaced because it merely recognizes a district court's authority
to override a fee arrangement, not that of an arbitrator. However,
manifest disregard requires something beyond and different from a
mere error in the law or failure on the part of the arbitrators to
understand and apply the law. Even if the arbitrator incorrectly
applied Agretech, the Ninth Circuit may not reverse an arbitration
award even in the face of an erroneous interpretation of the law.
Juntikka maintains that, even if the arbitrator did not manifestly
disregard the law, the arbitrator exceeded her powers because her
decision failed to draw its essence from the agreement.
To be sure, the Ninth Circuit has vacated arbitration awards where
the arbitrator blatantly disregards express terms of the parties'
agreements. In the present case, the arbitrator understood the
relevant law as permitting her to override the contract and
allocate fees in proportion to the benefit Juntikka and Wolf
conferred upon the class. Accordingly, the district court properly
denied the motion to vacate the fee award.
A full-text copy of the Court's Feb. 17, 2023 Memorandum is
available at https://tinyurl.com/4rdbpv6w from Leagle.com.
FARMERS PRIDE: Ventura Sues Over Production Workers' Unpaid OT
--------------------------------------------------------------
MARIO ESCANO VENTURA, individually and on behalf of all others
similarly situated, Plaintiff v. FARMERS PRIDE, INC. d/b/a Bell &
Evans, Defendant, Case No. 230202681 (Ct. Com. Pl., Philadelphia
Cty., February 24, 2023) is a class action against the Defendant
for unpaid overtime wages in violation of the Pennsylvania Minimum
Wage Act.
The Plaintiff worked for Farmers Pride as a production worker at
Fredericksburg poultry processing and packaging plant from
approximately 2005 through approximately January 2021.
Farmers Pride, Inc., doing business as Bell & Evans, is a producer
of poultry products, located in Fredericksburg, Pennsylvania. [BN]
The Plaintiff is represented by:
Marielle Macher, Esq.
DeJonna Bates, Esq.
Community Justice Project
118 Locust Street
Harrisburg, PA 17101
Telephone: (717) 236-9486
E-mail: mmacher@cjplaw.org
dbates@cjplaw.org
- and -
Sarah R. Schalman-Bergen, Esq.
Krysten Connon, Esq.
Lichten & Liss-Riordan, PC
729 Boylston Street, Suite 2000
Boston, MA 02116
Telephone: (267) 256-9973
E-mail: ssb@llrlaw.com
kconnon@llrlaw.com
- and -
Peter Winebrake, Esq.
Deirdre Aaron, Esq.
Winebrake & Santillo, LLC
715 Twining Road, Suite 211
Dresher, PA 19025
Telephone: (215) 884-2491
E-mail: pwinebrake@winebrakelaw.com
daaron@winebrakelaw.com
FIRST MERIDIAN: Fails to Pay Servers Proper Wages, Alexander Says
-----------------------------------------------------------------
BRITTANY ALEXANDER, on behalf of herself and all others similarly
situated, Plaintiff, v. FIRST MERIDIAN SERVICES, INC., TENNESSEE
F&B, LLC, and SKYPORT HOSPITALITY, LLC, Defendants, Case No.
3:23-cv-00148 (M.D. Tenn., Feb. 17, 2023) seeks to recover
Plaintiff's unpaid wages, tips, liquidated damages, attorneys'
fees, and costs from the Defendants under the Fair Labor Standards
Act.
According to the complaint, the Defendants generally paid Plaintiff
and those she seeks to represent a direct, cash hourly wage lower
than $7.25 per hour and relied on the "tip credit" provision of the
FLSA to meet their minimum and overtime wage obligations. However,
Defendants failed to satisfy the requirements for utilizing the tip
credit to meet their minimum wage and overtime obligations to
Plaintiff and other tipped employees, says the suit.
The Plaintiff was employed by Defendants as both a server and
bartender from approximately July of 2022 through approximately
November of 2022.
The Defendants together comprise a single business that owns and
operates a restaurant and bar called The Southern Steak & Oyster,
located in Concourse D of the South Terminal at the Nashville
International Airport in Nashville, Tennessee.[BN]
The Plaintiff is represented by:
David W. Garrison, Esq.
Joshua A. Frank, Esq.
Nicole A. Chanin, Esq.
BARRETT JOHNSTON MARTIN & GARRISON, LLC
Philips Plaza 414 Union Street, Suite 900
Nashville, TN 37219
Telephone: (615) 244-2202
Facsimile: (615) 252-3798
E-mail: dgarrison@barrettjohnston.com
jfrank@barrettjohnston.com
nchanin@barrettjohnston.com
FUBOTV INC: Continues to Defend Said-Ibrahim Shareholder Class Suit
-------------------------------------------------------------------
FuboTV Inc. disclosed in its Form 10-K Report for the fiscal period
ending December 31, 2022 filed with the Securities and Exchange
Commission on February 27, 2023, that the Company continues to
defend the Said-Ibrahim shareholder class suit.
On February 17, 2021, putative shareholders Wafa Said-Ibrahim and
Adhid Ibrahim filed a class action lawsuit against the Company,
co-founder and CEO David Gandler, Executive Chairman Edgar M.
Bronfman Jr., and CFO Simone Nardi (collectively, the "Class Action
Defendants"). Plaintiffs allege that Class Action Defendants
violated federal securities laws by disseminating false and
misleading statements regarding the Company's financial health and
operating condition, including the Company's ability to grow
subscription levels, prospects, future profitability, seasonality
factors, cost escalations, ability to generate advertising revenue,
valuation, and entering the online sports wagering market.
The Plaintiffs allege that Class Action Defendants violated Section
10(b) of the Securities Exchange Act of 1934 (the "Exchange Act")
and Rule 10b-5 thereunder, as well as Section 20(a) of the Exchange
Act, and seek damages and other relief.
On February 24, 2021, putative shareholder Steven Lee filed a
nearly identical class action lawsuit against the same Defendants.
On April 29, 2021, the court consolidated Said-Ibrahim v. fuboTV
Inc., David Gandler, Edgar M. Bronfman Jr., & Simone Nardi, Case
No. 21-cv-01412 (S.D.N.Y) and Lee v. fuboTV, Inc., David Gandler,
Edgar M. Bronfman Jr., & Simone Nardi, Case No. 21-cv-01641
(S.D.N.Y.) under In re FuboTV Inc. Securities Litigation, No.
1:21-cv-01412 (S.D.N.Y.).
The court also appointed putative shareholder Nordine Aamchoune as
lead plaintiff.
On July 12, 2021, Lead Plaintiff filed an Amended Class Action
Complaint. Lead Plaintiff seeks to pursue this claim on behalf of
himself as well as all other persons who purchased or otherwise
acquired Company securities publicly traded on the New York Stock
Exchange ("NYSE") between March 23, 2020 and January 4, 2021,
inclusive, and who were allegedly damaged thereby.
The Class Action Defendants filed a motion to dismiss the Amended
Class Action Complaint on September 10, 2021.
Lead Plaintiff filed an opposition on November 9, 2021. Class
Action Defendants’ filed their reply in support of the motion to
dismiss on December 9, 2021.
The Company believes the claims alleged in both lawsuits are
without merit and intends to vigorously defend these litigations.
FuboTV Inc. is a sports-first, live TV streaming company, offering
subscribers access to tens of thousands of live sporting events
annually as well as leading news and entertainment content. The
company's platform, fuboTV, allows customers to access content
through streaming devices and on SmartTVs, mobile phones, tablets,
and computers. The company is based in New York, New York.
GATEHOUSE MEDIA: Bid to Dismiss 2nd Amended Ewalt Complaint Denied
------------------------------------------------------------------
In the case, JOHN EWALT, et al., Plaintiffs v. GATEHOUSE MEDIA OHIO
HOLDINGS II, INC., d/b/a THE COLUMBUS DISPATCH, et al., Defendants,
Case No. 2:19-cv-4262 (S.D. Ohio), Judge Algenon L. Marbley of the
U.S. District Court for the Southern District of Ohio, Eastern
Division:
(1) denies the Defendants' Motion to Dismiss Plaintiffs'
Second Amended Complaint;
(2) grants the Holding Company Defendants' Motion to Dismiss
Second Amended Complaint for Lack of Personal
Jurisdiction; and
(3) overrules the Holding Company Defendants' Objection to the
March 8, 2022 Opinion and Order.
The parties in the case are Plaintiffs John Ewalt, Steve Wylie, and
Bonnie Navarre, on behalf of themselves and all those similarly
situated, and Defendants GateHouse Media Ohio Holdings II, Inc.,
d/b/a The Columbus Dispatch ("GateHouse Ohio"), GateHouse Media,
LLC, and Gannett Co., Inc. f/k/a New Media Investment Group Inc.
(collectively, the "GateHouse Defendants"). The Plaintiffs are Ohio
residents. The Defendants conduct business throughout Ohio.
GateHouse Ohio and GateHouse Media, LLC, are subsidiaries of
Gannett Co., Inc.
At the heart of the case is the allegation that the Gatehouse
Defendants fraudulently marketed to customers a term subscription
to The Dispatch when customers were actually purchasing a shortened
subscription to The Dispatch and unwanted premium editions.
Various employees at The Dispatch have been vocal in opposing this
"premium edition scheme," including editor Alan Miller and
publisher Brad Harmon. Despite the disapproval of several employees
of The Dispatch, the authority to end these deceptive practices
rested "primarily" with Denise Robbins and Lee Knapp during the
"bulk of the relevant time period." Robbins and Knapp are
representatives of Gannett, Inc. and GateHouse Media, LLC ("the
Holding Company Defendants"). Robbins and Knapp repeatedly directed
Gatehouse Ohio to issue additional premium editions at inflated
rates in an effort to offset losses incurred from other newspapers
owned by the GateHouse Defendants.
According to the Plaintiffs, Gannett and GateHouse Media directed,
participated, and/or cooperated in the premium-edition practices at
issue. At all relevant times, GateHouse Ohio and Gannett Co., Inc.
have had the same, or substantially the same, officers and
directors. The Holding Company Defendants have both held themselves
out as the publishers of The Dispatch; for example, Gannett's
website lists The Dispatch as one of the newspapers in its
portfolio. GateHouse Media entered into agreements with third
parties to purchase some of the premium agreements issued by
GateHouse Ohio and provided some of the premium editions directly
to GateHouse Ohio via its affiliates.
On Aug. 22, 2019, the Plaintiffs filed their original Complaint in
the Franklin County Court of Common Pleas. The original Complaint,
styled as a "Class Action Complaint," contains the following
claims: breach of the implied covenant of good faith and fair
dealing (Count I); breach of contract (Count II); violations of the
Ohio Consumer Sales Practices Act, O.R.C. Section 1345.01 et seq.
(Count III); declaratory judgment that GateHouse engaged in conduct
violative of the CSPA (Count IV); violations of the Ohio Deceptive
Trade Practices Act, O.R.C. Section 4165.01 et seq (Count V);
declaratory judgment that the subscription agreements and various
contractual limitations for liability and for filing suit are
unconscionable (Count VI); declaratory judgment that the
subscription agreements are illusory agreements (Count VII); unjust
enrichment (Count VIII); and injunctive relief precluding the
GateHouse Defendants from charging for premium editions without
proper disclosure, charging inflated paper statement fees, or from
committing further violations of the CSPA (Count IX).
On April 17, 2020, the Plaintiffs filed their First Amended
Complaint against the Gatehouse Defendants and Copley Newspapers.
Alleging individual and class claims, the First Amended Complaint
set forth nine counts against Defendants. All the Defendants moved
to dismiss for failure to state a claim upon which relief can be
granted, pursuant to Rule 12(b)(6). Defendant Copley Ohio moved to
dismiss for lack of subject-matter jurisdiction, while the Holding
Company Defendants challenged the existence of personal
jurisdiction. Pursuant to this Court's March 4, 2021 Order,
Defendants Copley Ohio and the Holding Company Defendants were
dismissed from the suit.
Following their deposition of Leon Haenel, former Director of
Consumer Marketing for GateHouse Ohio, the Plaintiffs moved for
leave to file their Second Amended Complaint on Jan. 11, 2022. As
presented by the Plaintiffs, the Second Amended Complaint was
intended to do the following:
(1) Joins the Holding Company Defendants and includes
allegations demonstrating their liability;
(2) Asserts a fraud claim against GateHouse Ohio and the
Holding Company Defendants;
(3) Clarifies the Plaintiffs' claim for breach of the duty of
good faith;
(4) Provides additional factual detail regarding the
Plaintiffs' claims for breach of contract, breach of the duty of
good faith, and CPSA violations.
The Second Amended Complaint also removes the Plaintiffs' claims
relating to GateHouse Ohio's paper-statement fee. The Plaintiffs
argued in their motion for leave that GateHouse Ohio did not
substantially complete its document production until May 2021, at
which point "GateHouse Ohio produced more than half of the pages it
has produced to date." They argued that the deposition from Mr.
Haenel, who played a key role in implementing the Holding Company
Defendants' premium-edition program, sharply contracted with the
statements made by the Holding Company Defendants in moving to
dismiss.
On March 8, 2022, the Magistrate Judge granted the Plaintiffs'
motion for leave to file their Second Amended Complaint. The
Plaintiffs' Second Amended Complaint was docketed the same day.
Soon thereafter, the Defendants filed two motions to dismiss.
The Defendants' first Motion to Dismiss ("Defendants' Motion to
Dismiss for Failure to State a Claim") moves to dismiss the
Plaintiffs' claims for fraud, breach of contract, and breach of the
implied covenant on the merits, as well as to dismiss Ewalt's
claims are time-barred. The Holding Company Defendants together
filed a second Motion to Dismiss ("Defendants' Motion to Dismiss
for Lack of Personal Jurisdiction") based on lack of jurisdiction
and failure plausibly to state a claim against the Holding Company
Defendants. Further still, the Holding Company Defendants then
filed an Objection to the Magistrate Judge's Order which granted
Plaintiffs leave to file their Second Amended Complaint.
Judge Marbley's analysis is as follows. First, he addresses the
Holding Company Defendants' Objection to the Magistrate Judge's
grant of leave to the Plaintiffs to file their Second Amended
Complaint. Second, he addresses the threshold question of
jurisdiction in Holding Company Defendants' second Motion to
Dismiss, which he construes as a Motion to Dismiss for Lack of
Personal Jurisdiction, pursuant to Rule 12(b)(2). Finally, he
reviews the Gatehouse Defendants' first Motion to Dismiss, which he
construes as a Motion to Dismiss for Failure to State a Claim.
Initially, Judge Marbley opines that the Holding Company
Defendants' Objection fails to demonstrate that the March 8th Order
was clearly erroneous. The Holding Company Defendants' Objection
points to no authority holding that the Court was obligated to deny
leave to amend based on the facts of the case. Whether the Second
Amended Complaint sufficiently demonstrates the presence of
personal jurisdiction involves a consideration of the pleading
itself. An examination of the merits of a complaint is generally
better saved for the motion to dismiss stage. The Holding Company
Defendants' Objection is overruled.
Next, Judge Marbley considers the merits of the Holding Company
Defendants' motions to dismiss. The Holding Company Defendants
argue three bases for dismissal in their Motion: (1) that
law-of-the-case doctrine should apply to avoid disturbing this
Court's prior order dismissing the Holding Company Defendants; (2)
that this Court lacks personal jurisdiction over the Holding
Company Defendants; and (3) that Plaintiffs fail to state a claim
for fraud against the Holding Company Defendants.
First, Judge Marbley finds that the Plaintiffs have again failed to
establish personal jurisdiction on the basis of imputing
GateHouse's jurisdictional contacts. He similarly concludes that
the Plaintiffs fail to demonstrate that personal jurisdiction is
proper with respect to the Holding Company Defendants' direct
activities.
Second, Judge Marbley finds that the Second Amended Complaint
suffers the same deficiency: the Complaint reveals that the
complained-of business practices exist separate and apart from
GateHouse Ohio's relationship with the Holding Company Defendants.
The new allegations still do not establish that the Holding Company
Defendants had or utilized direct power over GateHouse Ohio causing
it to continue its premium-edition scheme.
Third, Judge Marbley finds that the Plaintiff fails to demonstrate
that the requirements of any of the cited provisions of Ohio's
long-arm statute have been met. As such, he need not analyze
whether the due-process standards are satisfied to conclude that
the Plaintiff has failed to establish a prima facie case of
personal jurisdiction over the Holding Company Defendants.
Consequently, there is no need to address Holding Company
Defendants' argument that the Plaintiffs fail to state a claim
against them for fraud. The Holding Company Defendants are
accordingly dismissed from the lawsuit.
Finally, having dismissed the Holding Company Defendants, Judge
Marbley proceeds to the Defendants' Motion to Dismiss for Failure
to State a Claim. To the extent that the Second Amended Complaint
contains claims that are largely unchanged from the prior filing,
he refers to the Court's previous analysis in its March 4, 2021
Order where relevant.
As to Count I, he finds that the Plaintiffs' fraud claims are
sufficient as a matter of law, are pled with particularity, are
adequate for class treatment at this stage. As to Count II, he says
the Plaintiffs state a valid claim for relief: they entered into
agreements with GateHouse Ohio for a subscription term of The
Dispatch but failed to receive the benefit of the bargain for which
they contracted.
As to Count III, Judge Marbley finds a basis to maintain the cause
of action for breach of the implied covenant in instances where
there is a breach of the underlying contract. As such, the claim
may go forward as a dependent part of Plaintiffs' Count II breach
of contract claim. As to John Ewalt's individual claims, the Court
has already rejected the Defendants' argument concerning whether
Ewalt's claims are time-barred, interpreting the one-year period to
begin upon Ewalt's discovery of the alleged misconduct.
Based on the foregoing, Judge Marbley (1) grants the Holding
Company Defendants' Motion to Dismiss Second Amended Complaint for
Lack of Personal Jurisdiction; as such, the Holding Company
Defendants are dismissed from the action. He overrules the
Defendants' Objection and denies the Defendants' Motion to Dismiss
Plaintiffs' Second Amended Complaint for Failure to State a Claim.
The Plaintiffs' Motion to Strike Defendants' Reply Motion and the
Defendants' Motion for Leave to File Instanter Reply in Support of
their Objection are dismissed as moot. As a result of this ruling,
all the Plaintiffs' claims may proceed except as alleged against
the Holding Company Defendants.
A full-text copy of the Court's Feb. 15, 2023 Opinion & Order is
available at https://tinyurl.com/5ha8ehxj from Leagle.com.
GENWORTH LIFE: Court Awards $80K in Attys.' Fees to Langs' Counsel
------------------------------------------------------------------
In the case, FRED HANEY, et al., Plaintiffs v. GENWORTH LIFE
INSURANCE CO., et al., Defendants, Civil Action No. 3:22cv55 (E.D.
Va.), Judge Robert E. Payne of the U.S. District Court for the
Eastern District of Virginia, Richmond Division, awards $80,000 in
attorneys' fees to the Langs' counsel and a $3,750 incentive
payment to Lonny and Carrol Lang.
Class Representatives Fred Haney, Marsha Merrill, Sylvia Rausch,
Stephen Swenson, and Alan Wooten, individually and on behalf of a
proposed class of Genworth Choice 2, Choice 2.1, California CADE,
California Reprice, and California Unbundled policyholders as of
Jan. 1, 2013, filed the class action against Defendants Genworth
Life Insurance Co. ("GLIC") and Genworth Life Insurance Co. of New
York ("GLICNY") (collectively "Genworth" or "Defendants"). Before
the Complaint was filed, the parties engaged in three-days of
mediation and extensive discovery that resulted in a Memorandum of
Understanding ("MOU") that set forth the material terms of an
agreement-in-principle to be incorporated into a formal Settlement
Agreement for the Court's approval. The Complaint asserts two
claims. Count One alleges a claim of fraudulent inducement by
omission. Count Two is a claim for declaratory relief under 28
U.S.C. Section 2201.
The Plaintiffs each have Choice 2, Choice 2.1, California CADE,
California Reprice, or California Unbundled Long Term Care
Insurance policies issued by Genworth. Long Term Care ("LTC")
insurance is intended to defray the cost of home care, assisted
living care, nursing home care, and other specialized skilled
facility care required when an individual can no longer perform the
basic activities of daily life.
The Plaintiffs allege that, since 2013, Genworth has steadily and
substantially increased the premiums on their LTC insurance
policies. When Genworth learned that there were substantial
deficiencies in its reserves going forward, it sought at least six
waves of significant LTC premium rate increases to compensate for
the deficiency. The Plaintiffs also allege that, to avoid reporting
a current negative loss recognition testing margin, Genworth relied
almost entirely on billions of dollars in future rate increases to
plug the hole in its reserves.
However, say the Plaintiffs, Genworth's plan for those substantial
future rate increases was never shared with Genworth's LTC
policyholders. Rather, it is alleged that Genworth told
policyholders only that it was "possible" that a premium rate would
increase in the future, without telling policyholders that Genworth
actually had significant holes in its reserve and that, at that
time, Genworth actually planned to significantly increase premiums
over the next few years.
The Plaintiffs allege that Genworth only partially disclosed
material information when communicating the premium increases to
its LTC policyholders and that the undisclosed information was
material to the ability of policyholders to make informed decisions
respecting their LTC policy option renewals and the attendant
premium increases.
In Count One, the Complaint presents a claim for fraudulent
inducement by omission. In particular, the Complaint alleged that,
by failing to adequately disclose material information about
Genworth's rate increase action plans, Genworth withheld material
information from Plaintiffs and the Class. The relief sought in
Count One is to put class members in the same position they were in
before Genworth made the aforementioned omissions by providing the
missing disclosures on future rate increases to class members and
allowing them to make new election decisions based on the
information.
In Count Two, the Complaint presents a claim under the Declaratory
Judgment Act, 28 U.S.C. Paragraph 2201. The Declaratory Judgment
claim is based on the same factual assertions as form the basis for
the fraudulent inducement claim in Count One. But in Count Two, the
Plaintiffs are asking that the Court declare Genworth had a duty to
disclose that information so that a corrective disclosure to all
class members providing this information would be required.
Armed with knowledge and evidence obtained in previous similar
cases against Genworth, and after engaging in a period of
confirmatory discovery, Class Counsel filed the Plaintiffs' Motion
to Direct Notice of Proposed Settlement to the Class, which the
Court granted on May 2, 2022. On July 6, 2022, the parties
submitted an Amended Settlement Agreement to amend the final
Release. The Court preliminarily approved the Amended Settlement
Agreement on July 7, 2022, and directed that notice be sent to the
Class.
The Class Counsel has represented that, as of Sept. 16, 2022, they
have spoken with almost 4,300 policyholders who had questions about
the Amended Settlement Agreement. Over the course of the 60 days
allotted in the Notice, 187 policyholders opted out of the
Settlement Agreement, and 19 objections were filed by 31 Class
Members, including Lonny and Carrol Lang.
On Nov. 17, 2022, the Court held a hearing to give objectors the
opportunity to explain their objections. The afternoon before that
hearing, the parties informed the Court that an agreement had been
reached with the following objectors: Michael Podoll, Dr. David
Friedman, James Perry, Thomas Toman, Doug and Bonnie Ebstyne, and
William and Linda Dudley (ECF Nos. 56, 69, and 73) (collectively
"Podoll/Friedman Objectors"), and Jane Belkin (collectively
"Settlement Objectors"). The listed parties agreed that, in
exchange for making certain enhancements to the Special Election
Options in the Amended Settlement Agreement, the objectors would
withdraw their objections. That agreement has been approved and is
incorporated in the Second Amended Settlement Agreement. The
counsel for the objectors was also granted attorneys' fees, and
each settlement objector was awarded a $7,500 incentive payment.
In a Memorandum Opinion and Order issued on Dec. 12, 2022, the
Court overruled the Langs' objections to the settlement except for
the objection pertaining to the Class Counsel's attorneys' fees. On
Dec. 13, 2022, during the final hearing, the counsel for the Langs
renewed their objection to the Class Counsel's attorneys' fees,
arguing that more specificity was needed respecting the lodestar
calculation. In a Memorandum Opinion and Order issued on Jan. 30,
2023, the Court overruled the Langs' objection to the attorneys'
fees.
The Langs' Settlement Agreement, in broad terms, as explained by
the Class Counsel, the Settlement Agreement directly addresses the
alleged harm by providing the Class Members with additional
Disclosures about future rate increases, and then allowing them
options to either maintain their current benefits or restructure
their benefits and premiums in light of those Disclosures, if they
so wish.
To that end, the Second Amended Settlement Agreement dated Dec. 1,
2022 provides that class members will receive a "special election
letter" from Genworth, which will allow recipients to choose
between keeping their current plan or electing from a selection of
paid-up reduced benefit options and/or reduced benefit options ...
some of which also entitle Class Members to damages payments. The
class members who make no elections will simply retain their
current policies.
The Class members who are not in non-forfeiture status, and
"excluding Class Members whose level of benefits are below the
level of benefits available in the defined options," will receive
the following election options:
a. First Paid-Up Benefit Option: A paid-up benefit of lifetime
paid-in premiums minus (1) benefits received to date, and (2)
$10,000. And, in addition, a $10,000 cash damages payment.
b. Second Paid-Up Benefit Option: A paid-up benefit of 1.5
times the difference between the class member's paid-in premiums to
date minus claims paid to date. This option does not include a
damages payment.
c. Reduced Benefit Options (REOs): For qualifying class
members, options that reduce their policy benefits while also
awarding them a $6,000 damages payment, and for qualifying members
with inflation benefits, an option that reduces their overall
benefits but retains the inflation protection and a damages payment
of $3,000. A catchall RBO for otherwise non-qualifying members
whereby they receive a benefits reduction and a damages payment of
$1,200.
d. Fully Paid-Up Options: Class members who are in fully
paid-up status may choose between: (1) Paid-up benefits equivalent
to premiums paid in, less $10,000 and less benefits received, in
addition to a $10,000 damages payment; or (2) a reduction in
benefits and a damages payment of $6,000.
e. Non-Forfeiture Status Option: Retention of current paid-up
benefits and a damages payment of $1,150.
On Jan. 26, 2023, the parties and counsel for the Langs informed
the Court that they had reached a settlement agreement. The Langs
had originally been invited to join the previous settlement with
the other group of objectors, but the Langs declined. The Langs and
Genworth held a mediation session on Dec. 5, 2022, but it was
unsuccessful. The Langs and Genworth continued discussions until
they reached an agreement on Jan. 24, 2023.
The terms of the Langs' Settlement Agreement (ECF No. 140-1) are as
follows. As described in the Memorandym of Law in Support of Joint
Motion to Approve Settlement with the Lang Objectors filed on Jan.
30, 2023, the cash damages amount for the non-forfeiture option
will increase from $1,150 to $1,250. Second, even though the Langs'
objections have been overruled, the Langs agree that all of their
objections to the settlement terms are withdrawn. Third, the Langs
agree not to further object to the settlement, file any appeals, or
otherwise interfere with the settlement's finality. Lastly,
Genworth agrees to pay the Langs an incentive payment of $7,500
each and attorneys' fees not to exceed $237,500, all paid
separately from the payments to the class members.
The counsel for the Langs requests an award of $237,500 in
attorneys' fees because, in their view, negotiations with the
counsel for the Plaintiffs and the Defendants led to an $100
increase in cash damages for the non-forfeiture option, which is
said to add over $3.225 million of value to the settlement. The
counsel asks the Court to apply the percentage of recovery method
and then to perform a lodestar cross check. The counsel estimates
that they are requesting fees equal to 7.3% of the added value to
the settlement.
Judge Payne explains that the percentage of recovery method
requires the Court to award attorneys' fees based on "a percentage
of the Class' recovery, set by the weighing of a number of factors
by the court." In re The Mills, 265 F.R.D. at 260, the factors
generally include: (1) the results obtained for the Class; (2)
objections by members of the Class to the settlement terms and/or
fees requested by counsel; (3) the quality, skill, and efficiency
of the attorneys involved; (4) the complexity and duration of the
litigation; (5) the risk of nonpayment; (6) public policy; and (7)
awards in similar cases.
Having reviewed, and heard argument on, the Langs' objections,
having taken into account the results secured, and having
considered all other applicable factors, Judge Payne concludes that
a reasonable fee to compensate counsel for the results obtained is
$80,000. He finds that this is a reasonable amount considering the
substance of the objection, the ultimate result of the agreement,
the stage of the litigation at which the agreement was reached, and
the amount of time reasonably devoted to achieve the result.
In Halcom, the Court awarded a $7,500 incentive payment for each of
the represented objectors after finding such an award was
reasonable. Likewise, the Court awarded a $7,500 incentive payment
to each of the earlier settlement objectors who reached an
agreement before their objections were overruled.
The Langs request the same incentive payment to compensate them for
standing up on behalf of the Class, "refusing to agree to the
initial settlement offer, and expending time to achieve" the
improvements to the settlement. Judge Payne finds that the Langs
did expend time and energy helping the counsel achieve an agreement
with the parties. However, their objections lacked merit, the
results obtained were modest, and the record does not establish why
a $7,500 service award would be warranted. Accordingly, he awards
an incentive payment of $3,750 to each of the Langs.
For the foregoing reasons, and to the extent outlined, the Langs'
Fees Motion is granted in part and denied in part. Judge Payne
awards $80,000 in attorneys' fees to the Langs' counsel and a
$3,750 incentive payment to Lonny and Carrol Lang.
A full-text copy of the Court's Feb. 15, 2023 Memorandum Opinion is
available at https://tinyurl.com/ycks4bbv from Leagle.com.
HDR INCORPORATED: Davis Appeals Wiretap Suit Dismissal to 9th Cir.
------------------------------------------------------------------
CAROL DAVIS is taking an appeal from a court order dismissing her
lawsuit entitled Carol Davis, individually and on behalf of all
others similarly situated, Plaintiff, v. HDR Incorporated,
Defendant, Case No. 2:21-cv-01903-ROS, in the U.S. District Court
for the District of Arizona.
The Plaintiff filed a lawsuit against the Defendant for violation
of the Federal Wiretap Act. Plaintiff Davis is a member of the
Private Facebook Groups, Ahwatukee411 and PARC. Plaintiff Davis
communicated with other Group Members in the Private Facebook
Groups, and her communications were monitored, captured, and
analyzed by the Defendant. The wiretaps are allegedly used by the
Defendant to secretly observe and monitor Group Members' electronic
communications and confidential postings in the Private Facebook
Groups, through the use of monitoring tools, automated software,
and dedicated employees with backgrounds in signals intelligence
and communications intelligence. As such, the Defendant has
violated the Federal Wiretap Act.
On July 5, 2022, the Defendant filed a motion to dismiss the case
for failure to state a claim, which the Court granted through an
Order entered by Judge Roslyn O. Silver on Jan. 25, 2023. The Court
agreed with the Defendant's argument that the communications the
Plaintiff alleges the Defendant collected were not private, but
instead were readily accessible to the public. The Plaintiff's
claims were dismissed with leave to amend.
The appellate case is captioned Carol Davis v. HDR Incorporated,
Case No. 23-15233, in the United States Court of Appeals for the
Ninth Circuit, filed on February 22, 2023.
The briefing schedule in the Appellate Case states that:
-- Appellant Carol Davis Mediation Questionnaire was due on
March 1, 2023;
-- Appellant transcript is due on April 24, 2023;
-- Appellant Carol Davis opening brief is due on June 2, 2023;
-- Appellee HDR Incorporated answering brief is due on July 3,
2023; and
-- Appellant's optional reply brief is due 21 days after service
of the answering brief. [BN]
Plaintiff-Appellant CAROL DAVIS, individually and on behalf of all
others similarly situated, is represented by:
Joshua Arisohn, Esq.
Max Stuart Roberts, Esq.
BURSOR & FISHER, PA
888 7th Avenue
New York, NY 10019
Telephone: (646) 837-7150
(646) 837-7408
- and -
Gerald Barrett, Esq.
WARD, KEENAN & BARRETT, P.C.
3838 North Central Avenue, Suite 1720
Phoenix, AZ 85012
Telephone: (602) 252-5606
- and -
Neal J. Deckant, Esq.
BURSOR & FISHER, PA
1990 N. California Boulevard, Suite 940
Walnut Creek, CA 94596
Telephone: (925) 300-4455
Defendant-Appellee HDR INCORPORATED is represented by:
Ryan Ball, Esq.
John A. Vogt, Esq.
JONES DAY
3161 Michelson Drive, Suite 800
Irvine, CA 92612
Telephone: (949) 553-7515
(949) 851-3939
- and -
David M. Morrell, Esq.
JONES DAY
51 Louisiana Avenue, NW
Washington, DC 20001
Telephone: (202) 879-3636
- and -
Travis M. Wheeler, Esq.
BOWMAN AND BROOKE LLP
2901 North Central Avenue
Phoenix, AZ 85012
Telephone: (602) 643-2310
HEARTLAND APPLE: Underpays Restaurant Servers, Springman Suit Says
------------------------------------------------------------------
HEATHER SPRINGMAN, individually and on behalf of all others
similarly situated, Plaintiff v. HEARTLAND APPLE, INC., Defendant,
Case No. 2:23-cv-02035-CSB-EIL (C.D. Ill., February 24, 2023) is a
class action against the Defendant for unpaid minimum wages in
violation of the Fair Labor Standards Act and the Illinois Minimum
Wage Law.
The Plaintiff and other similarly situated employees were employed
as servers at the Defendant's Applebee's restaurants within the
last three years.
Heartland Apple, Inc. is an owner and operator of a chain of
Applebee's restaurants in Illinois. [BN]
The Plaintiff is represented by:
Hans A. Nilges, Esq.
Shannon M. Draher, Esq.
NILGES DRAHER LLC
7034 Braucher St., N.W., Suite B
North Canton, OH 44720
Telephone: (330) 470-4428
Facsimile: (330) 754-1430
E-mail: hnilges@ohlaborlaw.com
sdraher@ohlaborlaw.com
IMMUNOVANT INC: Faces Shareholder Suit Over Drug Efficacy Claims
----------------------------------------------------------------
Immunovant, Inc. disclosed in its Form 10-Q report for the
quarterly period ended December 31, 2022, filed with the Securities
and Exchange Commission on February 3, 2023, that in February 2021,
a putative securities class action complaint was filed against the
company and certain of its current and former officers in the U.S.
District Court for the Eastern District of New York on behalf of a
class consisting of those who acquired the company's securities
between October 2, 2019 and February 1, 2021.
The complaint alleges that the company and certain of its officers
violated Sections 10(b) and 20(a) of the Securities Exchange Act of
1934, as amended, by making false and misleading statements
regarding the safety of the drug "batoclimab" and seeks unspecified
monetary damages on behalf of the putative class and an award of
costs and expenses, including reasonable attorneys' fees.
In December 29, 2021, the U.S. District Court appointed a lead
plaintiff. In February 1, 2022, the lead plaintiff filed an amended
complaint adding RSL and the company's directors and underwriters
as defendants, and asserting additional claims under the Securities
Act of 1933 on behalf of a putative class consisting of those who
purchased or otherwise acquired the Company's securities pursuant
and/or traceable to the company's follow-on public offering on or
about September 2, 2020.
In March 15, 2022, the lead plaintiff filed a further amended
complaint. The company and other defendants served motions to
dismiss the amended complaint on May 27, 2022. The fully briefed
motion to dismiss, including defendants' opening briefs, lead
plaintiff's opposition, and defendants' replies were filed with the
court on September 9, 2022.
Immunovant, Inc. is a clinical-stage biopharmaceutical company
based in New York.
INTL. FLAVORS: Jansen Bid for Rehearing En Banc Nixed
-----------------------------------------------------
International Flavors & Fragrances Inc. disclosed in its Form 10-K
Report for the fiscal period ending December 31, 2022 filed with
the Securities and Exchange Commission on February 27, 2023, that
the Second Circuit denied plaintiff's petition for rehearing En
Banc on January 4, 2023.
On August 12, 2019, Marc Jansen filed a putative securities class
action against IFF, its then Chairman and CEO, and its then-CFO, in
the United States District Court for the Southern District of New
York. The lawsuit was filed after IFF disclosed that preliminary
results of investigations indicated that Frutarom businesses
operating principally in Russia and Ukraine had made improper
payments to representatives of customers.
On March 16, 2020, an amended complaint was filed, which added
Frutarom and certain former officers of Frutarom as defendants. The
amended complaint alleges, among other things, that defendants made
materially false and misleading statements or omissions concerning
IFF’s acquisition of Frutarom, the integration of the two
companies, and the companies’ financial reporting and results.
The amended complaint asserts claims under Section 10(b) of the
Securities Exchange Act of 1934 and SEC Rule 10b-5, and under the
Israeli Securities Act-1968, against all defendants, and under
Section 20(a) of the Securities Exchange Act of 1934 against the
individual defendants, on behalf of a putative class of persons and
entities who purchased or otherwise acquired IFF securities on the
New York Stock Exchange between May 7, 2018 and August 12, 2019 and
persons and entities who purchased or otherwise acquired IFF
securities on the Tel Aviv Stock Exchange between October 9, 2018
and August 12, 2019.
The amended complaint seeks an award of unspecified compensatory
damages, costs, and expenses. IFF, its officers, and Frutarom filed
a motion to dismiss the case on June 26, 2020, which was granted on
March 30, 2021.
On April 28, 2021, lead plaintiffs filed a notice of appeal to the
United States Court of Appeals for the Second Circuit. Lead
plaintiffs are pursuing the appeal only against Frutarom and
certain former officers of Frutarom. The parties have submitted
their briefs to the Court of Appeals.
The Second Circuit held oral argument on February 10, 2022.
On September 30, 2022, the Second Circuit affirmed the dismissal of
Plaintiffs' claims.
On October 14, 2022, Plaintiffs filed a Petition for Rehearing En
Banc, which the Second Circuit denied on January 4, 2023.
International Flavors & Fragrances Inc. is an American corporation
that produces flavors, fragrances, and cosmetic actives, which it
markets globally. It is headquartered in New York City and has
creative, sales, and manufacturing facilities in 44 different
countries.
JORGE'S RESTAURANT: Faces Villegas Wage-and-Hour Suit in E.D.N.Y.
-----------------------------------------------------------------
ALICIA VILLEGAS, DAYNA OSORNO, and JANICE OSORNO PICHARDO,
individually and on behalf of all others similarly situated,
Plaintiffs v. JORGE'S RESTAURANT CORP. (D/B/A CABANA JORGE), MARIA
BAEZ, AUGUSTIN BAEZ, and RAFAEL RODRIGUEZ, Defendants, Case No.
1:23-cv-01492 (E.D.N.Y., February 24, 2023) is a class action
against the Defendants for violations of the Fair Labor Standards
Act and the New York Labor Law including failure to pay minimum
wages, failure to comply with notice and recordkeeping
requirements, failure to provide accurate wage statements, failure
to reimburse equipment costs, and unlawful deductions from wages
and tips.
The Plaintiffs were employed as food packers and waitresses at
Cabana Jorge restaurant in Ridgewood, New York at anytime between
2016 and 2022.
Jorge's Restaurant Corp. is an owner and operator of a Dominican
Restaurant under the name Cabana Jorge, located at 688 Seneca Ave.,
Ridgewood, New York. [BN]
The Plaintiff is represented by:
Catalina Sojo, Esq.
CSM LEGAL, P.C.
60 East 42nd Street, Suite 4510
New York, NY 10165
Telephone: (212) 317-1200
Facsimile: (212) 317-1620
L'OREAL USA: Burton Class Suit Moved From E.D. Mich. to N.D. Ill.
-----------------------------------------------------------------
The case styled ANGELA BURTON, NATASHA M. CASBY, BRIDGETTE QUINN,
and SONDRA LOGGINS, on behalf of themselves and all others
similarly situated v. L'OREAL USA, INC.; L'OREAL USA PRODUCTS,
INC.; and SOFTSHEEN-CARSON, INC., Case No. 2:22-cv-12784, was
transferred from the U.S. District Court for the Eastern District
of Michigan to the U.S. District Court for the Northern District of
Illinois on February 24, 2023.
The Clerk of Court for the Northern District of Illinois assigned
Case No. 1:23-cv-01162 to the proceeding.
The Plaintiffs filed a lawsuit against the Defendants for medical
monitoring, unjust enrichment, negligent misrepresentation or
omission, breach of express warranty, breach of implied warranty,
strict product liability, and violations of the Michigan's Consumer
Protection Act and the New Jersey's General Business Law by
marketing, promoting, distributing, and selling Toxic
Hair-Straighteners and/or Relaxers with endocrine disrupting
chemicals.
L'Oreal USA, Inc. is a cosmetics manufacturer, with its principal
places of business located at 10 Hudson Yards, New York, New York.
L'Oreal USA Products, Inc. is a cosmetics manufacturer, with its
principal places of business located at 10 Hudson Yards, New York,
New York.
Softsheen-Carson, Inc. is a wholly-owned subsidiary of L'Oreal USA,
Inc. [BN]
The Plaintiffs are represented by:
H. James White, Esq.
WHITE LAW PLLC
2549 Jolly Road, Suite 340
Okemos, MI 48864
Telephone: (517) 316-1195
Facsimile: (517) 316-1197
E-mail: jameswhite@whitelawpllc.com
LAS VEGAS SANDS: Faces Shareholder Suit in NV Court
---------------------------------------------------
Las Vegas Sands Corp. (LVSC) disclosed in its Form 10-K report for
the fiscal year ended December 31, 2022, filed with the Securities
and Exchange Commission on February 3, 2023, that on October 22,
2020, the Daniels Family 2001 Revocable Trust, a putative purchaser
of the company's shares, filed a purported class action complaint
in the U.S. District Court for Nevada against LVSC, Sheldon G.
Adelson and Patrick Dumont.
The complaint asserts violations of Sections 10(b) and 20(a) of the
Securities Exchange Act of 1934 and alleges that LVSC made
materially false or misleading statements, or failed to disclose
material facts, from February 27, 2016 through September 15, 2020,
with respect to its operations at Marina Bay Sands, its compliance
with Singapore laws and regulations, and its disclosure controls
and procedures. On January 5, 2021, the U.S. District Court entered
an order appointing Carl S. Ciaccio and Donald M. DeSalvo as lead
plaintiffs.
In March 8, 2021, Lead Plaintiffs filed a purported class action
amended complaint against LVSC, Sheldon G. Adelson, Patrick Dumont,
and Robert G. Goldstein, alleging similar violations of Sections
10(b) and 20(a) of the Exchange Act over the same time period of
February 27, 2016 through September 15, 2020.
On March 22, 2021, the U.S. District Court granted Lead Plaintiffs'
motion to substitute Dr. Miriam Adelson, in her capacity as the
Special Administrator for the estate of Sheldon G. Adelson, for
Sheldon G. Adelson as a defendant in this action.
On May 7, 2021, the defendants filed a motion to dismiss the
amended complaint. Lead Plaintiffs filed an opposition to the
motion to dismiss on July 6, 2021, and the defendants filed their
reply on August 5, 2021. On March 28, 2022, the U.S. District Court
entered an order dismissing the amended complaint in its entirety.
The U.S. District Court dismissed certain claims with prejudice but
granted Lead Plaintiffs leave to amend the complaint with respect
to the other claims by April 18, 2022.
On April 8, 2022, Lead Plaintiffs filed a Motion for
Reconsideration and to Extend Time to File the Amended Complaint,
requesting the U.S. District Court to reconsider certain aspects of
its March 28, 2022 order and to extend the deadline for Lead
Plaintiffs to file an amended complaint. The defendants filed an
opposition to the motion on April 22, 2022. On April 18, 2022, Lead
Plaintiffs filed a second amended complaint.
On May 18, 2022, the defendants filed a motion to dismiss the
second amended complaint. Lead Plaintiffs filed an opposition to
the motion to dismiss on June 17, 2022, and the defendants filed
their reply on July 8, 2022.
Las Vegas Sands Corp. is a developer and operator of destination
properties based in Nevada.
LEPAGE BAKERIES: Bissonnette's Bid for Rehearing En Banc Denied
---------------------------------------------------------------
In the case, NEAL BISSONNETTE, INDIVIDUALLY AND ON BEHALF OF ALL
OTHERS SIMILARLY SITUATED, AND TYLER WOJNAROWSKI, INDIVIDUALLY AND
ON BEHALF OF ALL OTHERS SIMILARLY SITUATED, Plaintiffs-Appellants
v. LEPAGE BAKERIES PARK ST., LLC, C.K. SALES CO., LLC, AND FLOWERS
FOODS, INC., Defendants-Appellees, Case No. 20-1681 (2d Cir.), the
U.S. Court of Appeals for the Second Circuit denies the
Plaintiffs-Appellants' petition for rehearing en banc.
Following disposition of the appeal on May 5, 2022, the
Plaintiffs-Appellants filed a petition for rehearing en banc. The
opinion was amended Sept. 26, 2022, and a judge on the panel
thereafter requested a poll on whether to rehear the case en banc.
A poll having been conducted and there being no majority favoring
en banc review, the petition for rehearing en banc is denied.
Circuit Judge Alison J. Nathan, joined by Circuit Judges Beth
Robinson and Myrna Perez, dissents by opinion in the denial of
rehearing en banc. She opines that the Supreme Court's decision in
Southwest Airlines Co. v. Saxon, 142 S.Ct. 1783 (2022), decided
after the panel issued its original decision in the present case,
is just such an intervening decision. Both Saxon and the case
involve statutory interpretation of Section 1 of the Federal
Arbitration Act (FAA). Section 1 exempts from the Act's coverage
"contracts of employment of seamen, railroad employees, and any
other class of workers engaged in foreign or interstate commerce."
In sum, Judge Nathan says maintaining the "transportation industry"
requirement is, as Saxon demonstrates and holds, unsupported by the
text of the FAA. Saxon tells that in interpreting the Section 1
exemption, the Second Circuit must attend to the nature of a
worker's duties, not the industry of their employer. Its prior
precedent and the amended opinion do not so attend. Because the
amended majority opinion is in direct conflict with the textual
reasoning and holding of the Supreme Court's intervening decision
in Saxon, Judge Nathan dissents from the denial of rehearing en
banc.
Circuit Judges Dennis Jacobs and Circuit Judge Rosemary S. Pooler
filed their respective statement with respect to the denial of
rehearing en banc.
Judge Jacobs states that the issue in question is whether the
plaintiffs, who sell baked goods and drive trucks to distribute
them, qualify as "transportation workers" under the FAA and are
therefore exempt from arbitration. He concludes that simply driving
a truck does not automatically qualify a worker as a transportation
worker, and that the exemption applies only to those who work in
industries that primarily charge for the movement of goods or
passengers.
Judge Jacobs also rejects the notion that every worker in a
transportation industry is automatically a transportation worker,
and emphasizes the importance of determining whether the industry
itself is primarily focused on transportation. He also expresses
concern that expanding the exemption beyond its intended purpose
could lead to lengthy and expensive litigation, and affirms the
decision that the Plaintiffs in the case do not qualify as
transportation workers under the FAA. Overall, the Court's opinion
serves as a reminder that the determination of whether a worker is
exempt from arbitration under the FAA requires a careful analysis
of the specific industry in question, and cannot be based solely on
the worker's job duties or title.
Meanwhile, Judge Pooler states that the Second Circuit has declined
to review Bissonnette en banc, a decision that defies the recent
Saxon Supreme Court ruling and its decision puts its precedent out
of step with the Supreme Court and decisions from other Circuits.
The case involves two truck drivers who worked for three companies
as independent contractors in Connecticut. The Plaintiffs sued for
Fair Labor Standards Act collective action and class action
certification, among other claims. The Second Circuit decided two
main issues: whether the arbitration provision of the Distribution
Agreement was governed by the FAA, and whether Connecticut law
necessitated arbitration. The majority held that the truck driver
Plaintiffs were not transportation workers and that the arbitration
provision applied, leading it to avoid addressing the second
issue.
Judge Pooler states that the majority's conclusion is inconsistent
with the interpretations of other district courts and circuit
courts, and Saxon's ruling that an employee is part of a class of
workers based on their job responsibilities, not the employer's
business. For these reasons, she submits her statement to accompany
the denial of rehearing en banc.
A full-text copy of the Court's Feb. 15, 2023 Opinion is available
at https://tinyurl.com/4kb7skv5 from Leagle.com.
Harold L. Lichten -- hlichten@llrlaw.com -- (Matthew Thomson --
mthomson@llrlaw.com -- Zachary L. Rubin -- zrubin@llrlaw.com -- on
the brief) Lichten & Liss-Riordan, P.C., Boston, MA, for the
Plaintiffs-Appellants.
Traci L. Lovitt -- tlovitt@jonesday.com -- (Matthew W. Lampe --
mwlampe@jonesday.com -- Amanda K. Rice -- arice@jonesday.com -- on
the brief), Jones Day, New York, NY & Detroit, MI, and Margaret
Santen Hanrahan , Ogletree Deakins Nash Smoak & Stewart, P.C.,
Charlotte, NC, on the brief, for the Defendants-Appellees.
MADERA COMMUNITY: Rubio Balks at Mass Layoff Without Advance Notice
-------------------------------------------------------------------
ANTONIO RUBIO, on behalf of himself and a putative class of
similarly situated, Plaintiff v. MADERA COMMUNITY HOSPITAL,
Defendant, Case No. 1:23-at-00136 (E.D. Cal., Feb. 17, 2023) is a
class action complaint brought by the Plaintiff under the Worker
Adjustment and Retraining Notification Act, the California Worker
Adjustment and Retraining Notification Act, and the California
Labor Code against Defendant Madera Community Hospital, his
employer, for WARN Act purposes.
According to the complaint, Madera Community Hospital made a mass
layoff on January 2, 2023 by, unilaterally and without notice,
permanently terminating approximately 772 employees at its Madera,
California facilities, without any notice to employees or staff.
Madera Community Hospital failed to provide 60 days advance written
notice as required by the federal and state laws, to the affected
employees. Madera Community Hospital also failed to pay vested
paid-time off upon termination of the affected employees, says the
suit.
Madera Community Hospital is a not-for-profit community health
resource based in California.[BN]
The Plaintiff is represented by:
Eileen B. Goldsmith, Esq.
Danielle E. Leonard, Esq.
ALTSHULER BERZON LLP
177 Post St., Suite 300
San Francisco, CA 94108
Telephone: (415) 421-7151
Facsimile: (415) 362-8064
E-mail: egoldsmith@altber.com
dleonard@altber.com
- and -
Samuel J. Strauss, Esq.
Raina C. Borrelli, Esq.
TURKE & STRAUSS LLP
613 Williamson St., Suite 201
Madison, WI 53703
Telephone: (608) 237-1775
Facsimile: (608) 509-4423
E-mail: sam@turkestrauss.com
raina@turkestrauss.com
- and -
J. Gerard Stranch, IV, Esq.
Michael C. Iadevaia, Esq.
BRANSTETTER, STRANCH & JENNINGS, PLLC
223 Rosa L. Parks Avenue, Suite 200
Nashville, TN 37203
Telephone: (615) 254-8801
E-mail: gerards@bsjfirm.com
michaeli@bsjfirm.com
- and -
Lynn A. Toops, Esq.
Amina A. Thomas, Esq.
COHEN & MALAD, LLP
One Indiana Square, Suite 1400
Indianapolis, IN 46204
Telephone: (317) 636-6481
E-mail: ltoops@cohenandmalad.com
athomas@cohenandmalad.com
MDL 2566: Cellucci Suit Consolidated in Telexfree Securities Row
----------------------------------------------------------------
In the multi-district litigation captioned In re: Telexfree
Securities Litigation, MDL No. 2556, Judge Karen K. Caldwell,
Chairperson of the U.S. Judicial Panel on Multidistrict Litigation,
transfers the case styled as Anthony Cellucci, et al. v. Foster
Garvey PC, et al., (C.A. No. 2:22−01315, W.D. Wash.) to the U.S.
District Court for the District of Massachusetts and, with the
consent of that court, assigned it to Judge Timothy S. Hillman, for
inclusion in the coordinated or consolidated pretrial proceedings.
Garvey moved to vacate the order conditionally transferring the
action to MDL No. 2566 while plaintiffs opposed the motion to
vacate and supported transfer.
The panel found that the Garvey action involves common questions of
fact with the actions transferred to MDL No. 2566, and that
transfer will serve the convenience of the parties and witnesses
and promote the just and efficient conduct of the litigation. The
panel held that centralization was warranted for actions alleging
that the TelexFree companies operated a Ponzi pyramid scheme
involving the recruitment of persons to invest in and market
TelexFree's telephone service plan and that Garvey, with other
defendants, aided and abetted the scheme.
Among the defendants were TelexFree owners, officers and senior
promoters, certain legal advisers and numerous banks and payment
processing companies. Like the actions in the MDL, the Garvey
action arises out of the same alleged pyramid scheme and alleges
that defendants, four attorneys and their law firm, knowingly
provided TelexFree services that aided and abetted the scheme. The
panel noted that the Garvey defendants were named in an earlier
version of the master complaint in the MDL.
The transferee court dismissed those claims for lack of personal
jurisdiction, and plaintiffs then reasserted them in the instant
Garvey action in the forum where the defendants allegedly reside.
Garvey undoubtedly shares factual questions with the actions in the
MDL, and the transferee court is familiar with the claims and
well-positioned to manage the pretrial proceedings, says the panel.
In opposition to transfer, Garvey principally argued that their
pending motion to dismiss can be resolved most efficiently outside
the MDL, the Garvey action raises distinct factual and legal issues
that predominate over the common issues, and the MDL is too
advanced to include a new action. These arguments are unpersuasive,
ruled the panel.
The panel pointed out that it routinely transfers actions with
pending motions to dismiss, as those motions can be decided by the
transferee court. The presence of some unique questions of fact and
local law in Garvey is no obstacle to transfer given the common
factual core concerning the alleged TelexFree pyramid scheme.
Furthermore, "it is within the very nature of coordinated or
consolidated pretrial proceedings in multidistrict litigation for
the transferee judge to be called upon to apply the law of more
than one state."
The MDL is not too advanced for the continued transfer of tag-along
actions. Discovery is ongoing, and the transferee court is in the
best position to streamline the pretrial proceedings in this
related action with the proceedings in the MDL, the panel
concluded.
A full-text copy of the court's February 1, 2023 Transfer Order is
available at https://bit.ly/3IQfemS
MDL 2666: Giles Suit Consolidated in Bair Hugger Device Product Row
-------------------------------------------------------------------
In the multi-district litigation captioned In re: Bair Hugger
Forced Air Warming Devices Products Liability Litigation, MDL No.
2666, Judge Karen K. Caldwell, Chairperson of the U.S. Judicial
Panel on Multidistrict Litigation, transfers the case captioned
Giles, et al. v. 3M Company, et al., (C.A. No. 5:22-00690, W.D.
Okla.) to the U.S. District Court for the District of Minnesota
and, with the consent of that court, assigned it to Judge Joan N.
Ericksen, for inclusion in the coordinated or consolidated pretrial
proceedings.
Plaintiffs and defendants 3M Company and Arizant Healthcare Inc.
moved jointly to transfer the action to the District of Minnesota
for inclusion in MDL No. 2666. The motion is unopposed.
The Giles action first was noticed as a related action some six
months ago, and was transferred to the MDL on July 20, 2022,
without opposition. After transfer, however, the transferee judge
found that she was disqualified from presiding over the action. The
court, therefore, issued a suggestion of remand on July 28, 2022,
and the action was remanded to the Western District of Oklahoma on
August 9, 2022. After remand to the transferor court, plaintiffs on
September 21, 2022, voluntarily dismissed defendants Johnson &
Johnson and Ethicon, Inc., without prejudice. On October 21, 2022,
plaintiffs, 3M, and Arizant jointly filed the motion for transfer
now before the Panel.
After considering the argument of counsel, the panel found that the
action involves common questions of fact with the actions
transferred to MDL No. 2666, and that transfer will serve the
convenience of the parties and witnesses and promote the just and
efficient conduct of the litigation. Like the actions in the MDL,
Giles involves allegations that plaintiffs or their decedents
suffered injuries caused by Bair Hugger warming blankets used
during their surgeries with allegations that plaintiffs developed
serious infections during their orthopedic surgeries due to the
introduction of contaminants into their open wounds as a result of
the use of a Bair Hugger Forced Air Warming System.
A full-text copy of the court's February 6, 2023 Order is available
at bit.ly/3KQk1Y6
MDL 2846: Vaughn Suit Consolidated in Hernia Mesh Product Row
--------------------------------------------------------------
In the multi-district litigation captioned In re: Davol, Inc./C.R.
Bard, Inc., Polypropylene Hernia Mesh Products Liability
Litigation, MDL No. 2846, Judge Karen K. Caldwell, Chairperson of
the U.S. Judicial Panel on Multidistrict Litigation transfers the
case captioned Vaughn, et al. v. Kentuckiana Surgical Specialists,
P.S.C., et al," (C.A. No. 3:22−00576, W.D. Ky.) to the U.s.
District Court for the Southern District of Ohio and, with the
consent of that court, assigned it to the Judge Edmund A. Sargus,
Jr., for inclusion in the coordinated or consolidated pretrial
proceedings.
Vaughn moved to vacate the order that conditionally transferred the
action to the Southern District of Ohio for inclusion in MDL No.
2846, while defendants C. R. Bard Inc., Becton, Dickinson and
Company and Davol Inc. opposed the motion.
The panel found that this action involves common questions of fact
with the actions transferred to MDL No. 2846; allegations that
defects in defendants' polypropylene hernia mesh products can lead
to complications when implanted in patients including, inter alia,
adhesions, damage to organs and infections.
Plaintiffs also argued that transfer will cause them, as well as
the non-Bard healthcare defendants, inconvenience. However, the
panel has held repeatedly that transfer of a particular action
often is necessary to further the expeditious resolution of the
litigation taken as a whole, even if it might inconvenience some
parties to that action.
A full-text copy of the court's February 1, 2023 Order is available
at bit.ly/3ZclRGJ
MDL 2875: Zhejiang, et al. Appeal Class Certification Ruling
------------------------------------------------------------
ZHEJIANG HUAHAI PHARMACEUTICAL CO., LTD., et al. are taking an
appeal from a court order granting the Plaintiffs' motion for class
certification in In Re: Valsartan Losartan and Irbesartan Products
Liability Litigation, Case No. 1-19-md-02875, in the U.S. District
Court for the District of New Jersey.
The lawsuit seeks to recover damages for the economic harm caused
by the Defendants as a result of the Plaintiffs' and other Class
members' reimbursements for the Defendants' alleged adulterated,
misbranded, and/or unapproved valsartan and valsartan-containing
drugs (VCDs) illegally manufactured, sold, labeled, marketed and
distributed in the United States as Food and Drug
Administration-approved generic versions of Diovan, Diovan HCT,
Exforge, and Exforge HCT.
According to the complaint, the Plaintiffs and Class members'
beneficiaries who ingested VCDs manufactured, distributed, and sold
by Defendants were exposed to N-nitrosodimethylamine, a probable
human carcinogen, N-nitrosodiethylamine, a suspected human
carcinogen, and potentially other unsafe, non-FDA-approved
ingredients. The Plaintiffs contend that the Defendants knew or had
reason to know that their VCDs were adulterated, misbranded, not
FDA-approved, and would increase the risk of cancer to users.
Valsartan is an angiotensin II receptor blocker used to treat high
blood pressure and heart failure. Valsartan and VCDs are generic
versions of the branded registered listed drugs (RLDs) Diovan,
Diovan HCT, Exforge, and/or Exforge HCT.
The Plaintiffs and Class members are third-party payors -- private
health insurance companies, third-party administrators, health
maintenance organizations, municipalities or governmental entities
health and welfare funds -- that make payments from their own funds
and other health benefit providers and entities with self-funded
plans that contract with health insurers or administrators to
administer prescription drug benefits.
On Feb. 8, 2023, the Court released orders regarding the motions to
preclude, or strike, the reports of the parties' class
certification experts through Judge Robert B. Kugler.
The Court granted the Plaintiffs' Motion to Strike New and Altered
General Causation Opinions in the Report of Michael Bottorff,
PharmD. The Plaintiffs' Motions to Preclude the Class Certification
Reports of David Chesney, BA, MSJ; Punam Keller, PhD; Timothy
Kosty, RPh, MBA; William Lambert, PhD; and Eric Sheinin, PhD are
granted in part and denied in part. The Plaintiffs' Motion to
Preclude the Class Certification Report of Jason Clevenger, PhD,
was also granted.
The Court denied the Defendants' Motions to Preclude the Class
Certification Reports of Rena Conti, PhD and Edward Kaplan, MD. The
Defendants' Motions to Preclude the Class Certification Reports of
Kaliopi Panagos, PharmD and RPh, and Zirui Song, MD, PhD were
granted in part and denied in part.
The Plaintiffs' Motions to certify the Third Party Payor Class and
the Rule 23(b)(3) Class of Medical Monitoring as an Independent
Claim were granted but required the Plaintiffs to amend their
proposed subclasses. The Plaintiffs' Motion to certify the Rule
23(b)(2) Class of Medical Monitoring as an Independent Claim was
denied without prejudice.
The Defendants' Motion for leave to file instanter sur-reply briefs
in further opposition to the Plaintiffs' motions for class
certification, and request for a class certification hearing was
denied as moot.
The appellate case is captioned In Re: Valsartan Losartan and
Irbesartan Products, et al., Case No. 23-8005, in the United States
Court of Appeals for the Third Circuit, filed on February 22, 2023.
[BN]
Defendants-Petitioners ZHEJIANG HUAHAI PHARMACEUTICAL CO., LTD., et
al. are represented by:
Jessica D. Miller, Esq.
SKADDEN ARPS SLATE MEAGHER & FLOM
1440 New York Avenue, N.W.
Washington, DC 20005
Telephone: (202) 371-7850
- and -
Lori G. Cohen, Esq.
Steven M. Harkins, Esq.
Gregory E. Ostfeld, Esq.
Brian H. Rubenstein, Esq.
GREENBERG TRAURIG
3333 Piedmont Road, N.E., Suite 2500
Atlanta, GA 30305
Telephone: (678) 553-2385
(312) 456-8400
(215) 988-7864
- and -
Liza M. Walsh, Esq.
WALSH PIZZI O'REILLY & FALANGA
Three Gateway Center
100 Mulberry Street, 15th Floor
Newark, NJ 07102
Telephone: (973) 757-1100
- and -
Robert E. Blanton, Jr., Esq.
Janet L. Poletto, Esq.
HARDIN KUNDLA MCKEON & POLETTO
673 Morris Avenue
Springfield, NJ 07081
Telephone: (973) 912-5222
- and -
Andrew Albero, Esq.
Walter H. Swayze, III, Esq.
LEWIS BRISBOIS BISGAARD & SMITH
550 East Swedesford Road, Suite 270
Wayne, PA 19087
Telephone: (215) 977-4100
(215) 977-4086
- and -
Eric I. Abraham, Esq.
HILL WALLACK
21 Roszel Road
P.O. Box 5226
Princeton, NJ 08543
Telephone: (609) 734-6358
- and -
William P. Murtha, Esq.
HILL RIVKINS
55 Waugh Drive, Suite 1200
Houston, TX 77007
- and -
Devora W. Allon, Esq.
Alexia R. Brancato, Esq.
Jay P. Lefkowitz, Esq.
KIRKLAND & ELLIS
601 Lexington Avenue
New York, NY 10022
Telephone: (212) 446-5967
(212) 446-4800
Plaintiffs-Respondents Consumer Economic Loss, Third-Party Payor,
and Medical Monitoring Plaintiffs are represented by:
John R. Davis, Esq.
SLACK DAVIS SANGER
6001 Bold Ruler Way, Suite 100
Austin, TX 78746
Telephone: (512) 795-8686
- and -
Ruben Honik, Esq.
GOLOMB SPIRT GRUNFELD
1835 Market Street, Suite 2900
Philadelphia, PA 19103
Telephone: (215) 985-9177
- and -
Daniel Nigh, Esq.
LEVIN PAPANTONIO THOMAS MITCHELL RAFFERTY & PROCTOR
316 South Baylen Street, Suite 600
Pensacola, FL 32502
Telephone: (850) 435-7013
- and -
Adam M. Slater, Esq.
MAZIE SLATER KATZ & FREEMAN
103 Eisenhower Parkway, Suite 207
Roseland, NJ 07068
Telephone: (973) 228-9898
- and -
Conlee S. Whiteley, Esq.
KANNER & WHITELEY
701 Camp Street
New Orleans, LA 70130
Telephone: (504) 524-5777
- and -
Gregory P. Hansel, Esq.
PRETI FLAHERTY
One City Center
P.O. Box 9546
Portland, ME 04101
Telephone: (207) 791-3000
- and -
Jorge A. Mestre, Esq.
RIVERO MESTRE
2525 Ponce De Leon Bouelevard, Suite 1000
Coral Gables, FL 33134
Telephone: (305) 445-2520
- and -
Rachel German, Esq.
LIEFF CABRASER HEIMANN & BERNSTEIN
250 Hudson Street, 8th Floor
New York, NY 10013
Telephone: (212) 355-9500
- and -
Nicholas A. Migliaccio, Esq.
MIGLIACCIO & RATHOD
412 H Street, N.E., Suite 302
Washington, DC 20002
Telephone: (202) 470-3520
MDL 2903: Class Action Dismissal Bid Tossed in Fieker RPNS Suit
---------------------------------------------------------------
In the class action lawsuit captioned as Fieker v. Fisher-Price,
Inc. et al., Case No. 1:19-cv-01075 (W.D.N.Y., Filed Aug. 14,
2019), the Hon. Judge Geoffrey Crawford entered an order denying
the motion to dismiss for lack of standing.
Ms. Alfaro's allegations that she was misled into purchasing the
Rock-n-Play Sleepers (RNPS) are sufficient to establish standing
for jurisdictional purposes, the Court says.
The Defendants seek dismissal of the New York class action on
standing grounds. The court previously issued a decision certifying
an "issues class" on some but not all liability issues. The court
identified causation for purposes of NY GBL section 349 as well as
damages as subject to individual proof. The court also noted that
the Defendants intended to challenge the standing of Plaintiffs'
sole New York class representative, Elizabeth Alfaro.
Ms. Alfaro is the mother of several children. In September 2017,
she or her husband-it makes no difference here-purchased an RNPS
for her newborn son for $50 at a Target store.
Ms. Alfaro placed the little boy in the RNPS for half of his
daytime naps and 75-80% of his overnight sleep during the first six
months of his life. The child suffered no ill consequences from
sleeping in the RNPS and appears to have enjoyed it. He was
followed by a little sister. She did not enjoy sleeping in the RNPS
and did not use the product much during her infancy. In April 2019,
Ms. Alfaro learned about the recall of the RNPS supervised by the
Consumer Product Safety Commission. She participated in the recall
and received a plush child's toy. The Defendants placed a value of
$30 on the toy. Ms. Alfaro's children did not like to play with the
toy. Ms. Alfaro seeks a refund of the full price her family paid
for the RNPS.
The Fieker Case is consolidated in MDL No. 1:19-md-2903 RE:
FISHER-PRICE ROCK 'N PLAY SLEEPER MARKETING, SALES PRACTICES, AND
PRODUCTS LITIGATION. The suit alleges violatiob of the
Magnuson-Moss Warranty Act involving diversity-product liability.
Mattel is an American multinational toy manufacturing company
founded in January 1945 and headquartered in El Segundo,
California. The company has presence in 35 countries and
territories and sells products in more than 150 countries.
Fisher-Price is an American company that produces educational toys
for infants, toddlers and preschoolers, headquartered in East
Aurora, New York.
A copy of the Court's order dated Feb. 8, 2023 is available from
PacerMonitor.com at https://bit.ly/3knGgK2 at no extra charge.[CC]
MDL 2903: Class Action Dismissal Bid Tossed in Mulvey RPNS Suit
---------------------------------------------------------------
In the class action lawsuit captioned as Mulvey v. Fisher-Price,
Inc. et al., Case No. 1:19-cv-00518 (W.D.N.Y., Filed April 19,
2019), the Hon. Judge Geoffrey Crawford entered an order denying
the motion to dismiss for lack of standing.
Ms. Alfaro's allegations that she was misled into purchasing the
Rock-n-Play Sleepers (RNPS) are sufficient to establish standing
for jurisdictional purposes, the Court says.
The Defendants seek dismissal of the New York class action on
standing grounds. The court previously issued a decision certifying
an "issues class" on some but not all liability issues. The court
identified causation for purposes of NY GBL section 349 as well as
damages as subject to individual proof. The court also noted that
the Defendants intended to challenge the standing of Plaintiffs'
sole New York class representative, Elizabeth Alfaro.
Ms. Alfaro is the mother of several children. In September 2017,
she or her husband-it makes no difference here-purchased an RNPS
for her newborn son for $50 at a Target store.
Ms. Alfaro placed the little boy in the RNPS for half of his
daytime naps and 75-80% of his overnight sleep during the first six
months of his life. The child suffered no ill consequences from
sleeping in the RNPS and appears to have enjoyed it. He was
followed by a little sister. She did not enjoy sleeping in the RNPS
and did not use the product much during her infancy. In April 2019,
Ms. Alfaro learned about the recall of the RNPS supervised by the
Consumer Product Safety Commission. She participated in the recall
and received a plush child's toy. The Defendants placed a value of
$30 on the toy. Ms. Alfaro's children did not like to play with the
toy. Ms. Alfaro seeks a refund of the full price her family paid
for the RNPS.
The Mulvey Case is consolidated in MDL No. 1:19-md-2903 RE:
FISHER-PRICE ROCK 'N PLAY SLEEPER MARKETING, SALES PRACTICES, AND
PRODUCTS LITIGATION. The suit alleges violatiob of the
Magnuson-Moss Warranty Act involving diversity-product liability.
Mattel is an American multinational toy manufacturing company
founded in January 1945 and headquartered in El Segundo,
California. The company has presence in 35 countries and
territories and sells products in more than 150 countries.
Fisher-Price is an American company that produces educational toys
for infants, toddlers and preschoolers, headquartered in East
Aurora, New York.
A copy of the Court's order dated Feb. 8, 2023 is available from
PacerMonitor.com at https://bit.ly/41n7npe at no extra charge.[CC]
MDL 2903: Class Action Dismissal Bid Tossed in Nabong v. Mattel
---------------------------------------------------------------
In the class action lawsuit captioned as NABONG v. Mattel, Inc., et
al., Case No. 1:19-cv-00668 (W.D.N.Y., Filed May 22, 2019), the
Hon. Judge Geoffrey Crawford entered an order denying the motion to
dismiss for lack of standing.
Ms. Alfaro's allegations that she was misled into purchasing the
Rock-n-Play Sleepers (RNPS) are sufficient to establish standing
for jurisdictional purposes, the Court says.
The Defendants seek dismissal of the New York class action on
standing grounds. The court previously issued a decision certifying
an "issues class" on some but not all liability issues. The court
identified causation for purposes of NY GBL section 349 as well as
damages as subject to individual proof. The court also noted that
the Defendants intended to challenge the standing of Plaintiffs'
sole New York class representative, Elizabeth Alfaro.
Ms. Alfaro is the mother of several children. In September 2017,
she or her husband-it makes no difference here-purchased an RNPS
for her newborn son for $50 at a Target store.
Ms. Alfaro placed the little boy in the RNPS for half of his
daytime naps and 75-80% of his overnight sleep during the first six
months of his life. The child suffered no ill consequences from
sleeping in the RNPS and appears to have enjoyed it. He was
followed by a little sister. She did not enjoy sleeping in the RNPS
and did not use the product much during her infancy. In April 2019,
Ms. Alfaro learned about the recall of the RNPS supervised by the
Consumer Product Safety Commission. She participated in the recall
and received a plush child's toy. The Defendants placed a value of
$30 on the toy. Ms. Alfaro's children did not like to play with the
toy. Ms. Alfaro seeks a refund of the full price her family paid
for the RNPS.
The Nabong Case is consolidated in MDL No. 1:19-md-2903 RE:
FISHER-PRICE ROCK 'N PLAY SLEEPER MARKETING, SALES PRACTICES, AND
PRODUCTS LITIGATION. The suit alleges violatiob of the
Magnuson-Moss Warranty Act involving diversity-product liability.
Mattel is an American multinational toy manufacturing company
founded in January 1945 and headquartered in El Segundo,
California. The company has presence in 35 countries and
territories and sells products in more than 150 countries.
Fisher-Price is an American company that produces educational toys
for infants, toddlers and preschoolers, headquartered in East
Aurora, New York.
A copy of the Court's order dated Feb. 8, 2023 is available from
PacerMonitor.com at https://bit.ly/3KBnGbU at no extra charge.[CC]
MDL 2903: Class Action Dismissal Bid Tossed in Nadel RPNS Suit
--------------------------------------------------------------
In the class action lawsuit captioned as Nadel, et al., v.
Fisher-Price, Inc. et al., Case No. 1:19-cv-00791 (W.D.N.Y., Filed
June 14, 2019), the Hon. Judge Geoffrey Crawford entered an order
denying the motion to dismiss for lack of standing.
Ms. Alfaro's allegations that she was misled into purchasing the
Rock-n-Play Sleepers (RNPS) are sufficient to establish standing
for jurisdictional purposes, the Court says.
The Defendants seek dismissal of the New York class action on
standing grounds. The court previously issued a decision certifying
an "issues class" on some but not all liability issues. The court
identified causation for purposes of NY GBL section 349 as well as
damages as subject to individual proof. The court also noted that
the Defendants intended to challenge the standing of Plaintiffs'
sole New York class representative, Elizabeth Alfaro.
Ms. Alfaro is the mother of several children. In September 2017,
she or her husband-it makes no difference here-purchased an RNPS
for her newborn son for $50 at a Target store.
Ms. Alfaro placed the little boy in the RNPS for half of his
daytime naps and 75-80% of his overnight sleep during the first six
months of his life. The child suffered no ill consequences from
sleeping in the RNPS and appears to have enjoyed it. He was
followed by a little sister. She did not enjoy sleeping in the RNPS
and did not use the product much during her infancy. In April 2019,
Ms. Alfaro learned about the recall of the RNPS supervised by the
Consumer Product Safety Commission. She participated in the recall
and received a plush child's toy. The Defendants placed a value of
$30 on the toy. Ms. Alfaro's children did not like to play with the
toy. Ms. Alfaro seeks a refund of the full price her family paid
for the RNPS.
The Nadel Case is consolidated in MDL No. 1:19-md-2903 RE:
FISHER-PRICE ROCK 'N PLAY SLEEPER MARKETING, SALES PRACTICES, AND
PRODUCTS LITIGATION. The suit alleges violatiob of the
Magnuson-Moss Warranty Act involving diversity-product liability.
Mattel is an American multinational toy manufacturing company
founded in January 1945 and headquartered in El Segundo,
California. The company has presence in 35 countries and
territories and sells products in more than 150 countries.
Fisher-Price is an American company that produces educational toys
for infants, toddlers and preschoolers, headquartered in East
Aurora, New York.
A copy of the Court's order dated Feb. 8, 2023 is available from
PacerMonitor.com at https://bit.ly/3XPUsZW at no extra charge.[CC]
MDL 2903: Class Action Dismissal Bid Tossed in Pasternacki Suit
---------------------------------------------------------------
In the class action lawsuit captioned as Pasternacki v.
Fisher-Price, Inc. et al., Case No. 1:19-cv-00941 (W.D.N.Y., Filed
July 17, 2019), the Hon. Judge Geoffrey Crawford entered an order
denying the motion to dismiss for lack of standing.
Ms. Alfaro's allegations that she was misled into purchasing the
Rock-n-Play Sleepers (RNPS) are sufficient to establish standing
for jurisdictional purposes, the Court says.
The Defendants seek dismissal of the New York class action on
standing grounds. The court previously issued a decision certifying
an "issues class" on some but not all liability issues. The court
identified causation for purposes of NY GBL section 349 as well as
damages as subject to individual proof. The court also noted that
the Defendants intended to challenge the standing of Plaintiffs'
sole New York class representative, Elizabeth Alfaro.
Ms. Alfaro is the mother of several children. In September 2017,
she or her husband-it makes no difference here-purchased an RNPS
for her newborn son for $50 at a Target store.
Ms. Alfaro placed the little boy in the RNPS for half of his
daytime naps and 75-80% of his overnight sleep during the first six
months of his life. The child suffered no ill consequences from
sleeping in the RNPS and appears to have enjoyed it. He was
followed by a little sister. She did not enjoy sleeping in the RNPS
and did not use the product much during her infancy. In April 2019,
Ms. Alfaro learned about the recall of the RNPS supervised by the
Consumer Product Safety Commission. She participated in the recall
and received a plush child's toy. The Defendants placed a value of
$30 on the toy. Ms. Alfaro's children did not like to play with the
toy. Ms. Alfaro seeks a refund of the full price her family paid
for the RNPS.
The Pasternacki Case is consolidated in MDL No. 1:19-md-2903 RE:
FISHER-PRICE ROCK 'N PLAY SLEEPER MARKETING, SALES PRACTICES, AND
PRODUCTS LITIGATION. The suit alleges violatiob of the
Magnuson-Moss Warranty Act involving diversity-product liability.
Mattel is an American multinational toy manufacturing company
founded in January 1945 and headquartered in El Segundo,
California. The company has presence in 35 countries and
territories and sells products in more than 150 countries.
Fisher-Price is an American company that produces educational toys
for infants, toddlers and preschoolers, headquartered in East
Aurora, New York.
A copy of the Court's order dated Feb. 8, 2023 is available from
PacerMonitor.com at https://bit.ly/41itHjD at no extra charge.[CC]
MDL 2924: Weaver Suit Consolidated in Ranitidine Drug Liability Row
-------------------------------------------------------------------
In the multi-district litigation captioned In re: Zantac
(Ranitidine) Products Liability Litigation, MDL No. 2924, Judge
Karen K. Caldwell, Chairperson of the U.S. Judicial Panel on
Multidistrict Litigation, transfers the case docketed as "Weaver v.
Sanofi-Aventis U.S. LLC, et al.," C.A. No. 2:22-07287, C.D. Cal.)
to the U.S. District Court for the Southern District of Florida
and, with the consent of that court, assigned them to Judge Robin
L. Rosenberg for coordinated or consolidated pretrial proceedings.
Weaver moved to vacate the panel's order that conditionally
transferred him to the Southern District of Florida for inclusion
in MDL No. 2924. Defendant Sanofi-Aventis U.S. LLC opposed the
motion.
According to the panel, the action involves common questions of
fact with the actions transferred to MDL No. 2924; allegations that
ranitidine, the active molecule in "Zantac" and similar heartburn
medications, can form the carcinogen N-Nitrosodimethylamine (NDMA),
either during storage or when metabolized in the human body. Weaver
alleges that he developed cancer caused by his ingestion of
Zantac.
In support of his motion to vacate, plaintiff argued that his
action should proceed in the jurisdiction where he allegedly
suffered his injuries. The panel, however, held that the transfer
is only for pretrial proceedings. If plaintiff's claims remain
pending at the conclusion of pretrial proceedings, they will be
remanded for trial in the transferor court. To the extent plaintiff
is arguing that federal subject matter jurisdiction over his action
is lacking and that his claims should proceed in state court, his
argument is not persuasive, according to the panel.
A full-text copy of the court's February 1, 2023 Transfer Order is
available at bit.ly/3ml8ndc
MDL 2972: Case Management Order Entered in Arthur v. Blackbaud
--------------------------------------------------------------
In the class action lawsuit captioned as Arthur, et al., v.
Blackbaud, Inc., Case No. 3:20-cv-04382 (D.S.C., Filed Dec. 17,
2020), the Hon. Judge Joseph F. Anderson, Jr. entered a case
management order as follows:
Event Deadline
-- Blackbaud's opposition to class May 16, 2023
certification:
-- Blackbaud's rebuttal class May 16, 2023
certification expert disclosure:
-- Blackbaud's Daubert motions on May 16, 2023
the Plaintiffs' class
certification experts:
-- The Plaintiff's response in June 13, 2023
opposition to Blackbaud's
Daubert motions on:
-- The Plaintiffs' class certification July 11, 2023
experts Blackbaud's reply in
support of its Daubert motion
on Plaintiffs' class certification
experts:
-- The Plaintiffs' reply in support July 11, 2023
of their motion for class
certification:
-- The Plaintiffs' Daubert motions July 11, 2023
on Blackbaud's rebuttal class
certification experts:
-- Blackbaud's response in August 8, 2023
opposition to Plaintiffs'
Daubert motions on Blackbaud's
rebuttal class certification
experts:
-- The Plaintiffs' reply in support September 5, 2023
of their Daubert Motions on
Blackbaud's rebuttal class
certification experts:
-- Hearing on class certification TBD
and Daubert Motions:
The Arthur Case is consolidated in RE: BLACKBAUD, INC., CUSTOMER
DATA BREACH LITIGATION. The lead case is Case No. 3:20-mn-02972.
The actions in MDL No. 2972 are putative class actions concerning a
ransomware attack and data security breach into Blackbaud's systems
in early 2020 that allegedly compromised the personal information
of consumers doing business with entities served by Blackbaud's
cloud software and services. Plaintiffs in the centralized actions
allege that the Blackbaud clients impacted by the data breach
include numerous schools, universities, healthcare providers, and
nonprofit organizations, and that the consumers who provided their
personal information to those entities have suffered damages,
including the risk of identity theft and fraud. Defendants Harvard
and Allina Health System allegedly are two Blackbaud clients
affected by the data breach.
Blackbaud is a cloud computing provider that serves the social good
community -- nonprofits, foundations, corporations, education
institutions, healthcare organizations, religious organizations,
and individual change agents.
A copy of the Court's order dated Feb. 7, 2023 is available from
PacerMonitor.com at https://bit.ly/41hdpaG at no extra charge.[CC]
MDL 2972: Case Management Order Entered in Atwood v. Blackbaud
--------------------------------------------------------------
In the class action lawsuit captioned as Atwood v. Blackbaud Inc.,
Case No. 3:20-cv-04516 (D.S.C., Filed Dec. 31, 2020), the Hon.
Judge Joseph F. Anderson, Jr. entered a case management order as
follows:
Event Deadline
-- Blackbaud's opposition to class May 16, 2023
certification:
-- Blackbaud's rebuttal class May 16, 2023
certification expert disclosure:
-- Blackbaud's Daubert motions on May 16, 2023
the Plaintiffs' class
certification experts:
-- The Plaintiff's response in June 13, 2023
opposition to Blackbaud's
Daubert motions on:
-- The Plaintiffs' class certification July 11, 2023
experts Blackbaud's reply in
support of its Daubert motion
on Plaintiffs' class certification
experts:
-- The Plaintiffs' reply in support July 11, 2023
of their motion for class
certification:
-- The Plaintiffs' Daubert motions July 11, 2023
on Blackbaud's rebuttal class
certification experts:
-- Blackbaud's response in August 8, 2023
opposition to Plaintiffs'
Daubert motions on Blackbaud's
rebuttal class certification
experts:
-- The Plaintiffs' reply in support September 5, 2023
of their Daubert Motions on
Blackbaud's rebuttal class
certification experts:
-- Hearing on class certification TBD
and Daubert Motions:
The Atwood Case is consolidated in RE: BLACKBAUD, INC., CUSTOMER
DATA BREACH LITIGATION. The lead case is Case No. 3:20-mn-02972.
The actions in MDL No. 2972 are putative class actions concerning a
ransomware attack and data security breach into Blackbaud's systems
in early 2020 that allegedly compromised the personal information
of consumers doing business with entities served by Blackbaud's
cloud software and services. Plaintiffs in the centralized actions
allege that the Blackbaud clients impacted by the data breach
include numerous schools, universities, healthcare providers, and
nonprofit organizations, and that the consumers who provided their
personal information to those entities have suffered damages,
including the risk of identity theft and fraud. Defendants Harvard
and Allina Health System allegedly are two Blackbaud clients
affected by the data breach.
Blackbaud is a cloud computing provider that serves the social good
community -- nonprofits, foundations, corporations, education
institutions, healthcare organizations, religious organizations,
and individual change agents.
A copy of the Court's order dated Feb. 7, 2023 is available from
PacerMonitor.com at https://bit.ly/3SnYiZ9 at no extra charge.[CC]
MDL 2972: Case Management Order Entered in Bedell v. Blackbaud
--------------------------------------------------------------
In the class action lawsuit captioned as Silverman Bedell v.
Blackbaud Inc., Case No. 3:20-cv-04514 (D.S.C., Filed Dec. 30,
2020), the Hon. Judge Joseph F. Anderson, Jr. entered a case
management order as follows:
Event Deadline
-- Blackbaud's opposition to class May 16, 2023
certification:
-- Blackbaud's rebuttal class May 16, 2023
certification expert disclosure:
-- Blackbaud's Daubert motions on May 16, 2023
the Plaintiffs' class
certification experts:
-- The Plaintiff's response in June 13, 2023
opposition to Blackbaud's
Daubert motions on:
-- The Plaintiffs' class certification July 11, 2023
experts Blackbaud's reply in
support of its Daubert motion
on Plaintiffs' class certification
experts:
-- The Plaintiffs' reply in support July 11, 2023
of their motion for class
certification:
-- The Plaintiffs' Daubert motions July 11, 2023
on Blackbaud's rebuttal class
certification experts:
-- Blackbaud's response in August 8, 2023
opposition to Plaintiffs'
Daubert motions on Blackbaud's
rebuttal class certification
experts:
-- The Plaintiffs' reply in support September 5, 2023
of their Daubert Motions on
Blackbaud's rebuttal class
certification experts:
-- Hearing on class certification TBD
and Daubert Motions:
The Bedell Case is consolidated in RE: BLACKBAUD, INC., CUSTOMER
DATA BREACH LITIGATION. The lead case is Case No. 3:20-mn-02972.
The actions in MDL No. 2972 are putative class actions concerning a
ransomware attack and data security breach into Blackbaud's systems
in early 2020 that allegedly compromised the personal information
of consumers doing business with entities served by Blackbaud's
cloud software and services. Plaintiffs in the centralized actions
allege that the Blackbaud clients impacted by the data breach
include numerous schools, universities, healthcare providers, and
nonprofit organizations, and that the consumers who provided their
personal information to those entities have suffered damages,
including the risk of identity theft and fraud. Defendants Harvard
and Allina Health System allegedly are two Blackbaud clients
affected by the data breach.
Blackbaud is a cloud computing provider that serves the social good
community -- nonprofits, foundations, corporations, education
institutions, healthcare organizations, religious organizations,
and individual change agents.
A copy of the Court's order dated Feb. 7, 2023 is available from
PacerMonitor.com at https://bit.ly/3xQlPZ3 at no extra charge.[CC]
MDL 2996: Panel Vacates Order Transferring 15 Cases From S.D.W.V.
-----------------------------------------------------------------
In the product liability litigation over prescription opioids
captioned In Re: McKinsey & Company, Inc., National Prescription
Opiate Consultant Litigation, MDL No. 2996, Judge Karen K.
Caldwell, Chairperson of the U.S. Judicial Panel on Multidistrict
Litigation vacated the conditional transfer order that transfers 15
cases from the U.S. District Court for the Southern District of
West Virginia to the U.S. District Court for the Northern District
of California.
Plaintiffs; manufacturing and distributor defendants namely AbbVie
Inc., Allergan Finance LLC, Allergan PLC, Allergan Sales LLC,
Allergan USA, Inc., AmerisourceBergen Corporation,
AmerisourceBergen Drug Corporation, Anda, Inc., Cardinal Health,
Inc., H.D. Smith Holding Comp, H.D. Smith Holdings, LLC, H.D.
Smith, LLC, Janssen Pharmaceuticals, Inc., Johnson & Johnson,
McKesson Corporation, Noramco, and Teva Pharmaceuticals USA, Inc.;
and defendant West Virginia Board of Pharmacy in 15 Southern
District of West Virginia actions brought on behalf of children
diagnosed with neonatal abstinence syndrome (NAS) moved to vacate
the order conditionally transferring the actions to MDL No. 2996.
McKinsey did not oppose the motions.
The panel granted the motions to vacate. The panel held that no
party disputes that plaintiffs make factual allegations against
McKinsey that bring the actions within the MDL's ambit. In these
cases, though, the claims against McKinsey represent only one
aspect of a much larger dispute with multiple claims brought
against over 20 defendants, which include manufacturers and
distributors of opioids and the West Virginia Board of Pharmacy. No
party here, including McKinsey, affirmatively supports inclusion of
these cases in the MDL. Transfer, thus, appears unnecessary.
Said actions involve McKinsey's role in providing advice to certain
opioid manufacturers, most notably Purdue, in the form of sales and
marketing strategies aimed at increasing sales of prescription
opioid drugs, bringing such claims against McKinsey entities as
public nuisance, negligence, negligent misrepresentation, fraud,
unjust enrichment and violation of consumer protection statutes.
The panel opined that vacating the conditional transfer order here
creates some risk of inconsistent pretrial rulings which does not
outweigh the inconvenience to the parties at this moment. If
needed, the parties and involved judges can coordinate to avoid any
potentially conflicting pretrial obligations placed upon the
parties. Moreover, if the parties or the involved courts become
concerned that transfer is needed to address any unavoidable
potential inconsistencies, then the parties or the courts can
re-notice the actions for transfer by the panel at that time, it
added.
A full-text copy of the court's February 6, 2023 order is available
at bit.ly/3SI6ljF
MDL 3010: Stellman v. Google Transferred to S.D.N.Y.
----------------------------------------------------
In the multi-district litigation captioned In Re: Google Digital
Advertising Antitrust Litigation, MDL No. 3010, Judge Karen K.
Caldwell, Chairperson of the U.S. Judicial Panel on Multidistrict
Litigation, transfers the case docketed as "Stellman v. Google LLC,
et al.," (C.A. No. 5:22−05273, N.D. Cal.) to the U.S. District
Court for the Southern District of New York and assigned to Judge
P. Kevin Castel for coordinated or consolidated pretrial
proceedings.
Plaintiff moved to vacate the order conditionally transferring the
action to MDL No. 3010 while Defendants Google LLC and Alphabet,
Inc. opposed the motion and supported transfer.
Stellman's action concerns Google's alleged monopolization and
suppression of competition in online display advertising, an
industry that involves high-speed electronic trading venues called
"exchanges" that advertisers and online publishers use to manage
the buying and selling of ad space on web sites and mobile apps. It
alleges that Google has monopolized or suppressed competition in
digital display advertising and that Google allegedly runs the
largest ad exchange and has engaged in numerous kinds of unlawful
acts to suppress competition, causing injuries to advertisers and
publishers that participate in its exchange by imposing
supra-competitive pricing and depriving them of revenue.
Plaintiff principally argues that he does not assert any antitrust
claims but only consumer protection claims, and thus his action is
beyond the scope of the MDL and that transfer to the MDL would be
inefficient because the transferee court already has ruled on an
alleged auction manipulation program known as "Reserve Price
Optimization," alleging that Google overrode and increased the
bidding floors set by publishers and thereby deceptively increased
the price advertisers paid for ad space on publisher websites.
The panel established that transfer does not require a complete
identity of factual issues, and the presence of additional facts or
differing legal theories is not significant when the actions arise
from a common factual core thus, plaintiff's assertion of consumer
protection instead of antitrust claims does not prevent transfer.
A full-text copy of the court's February 1, 2023 Transfer Order is
available at bit.ly/3IVGdgR
MDL 3062: Goodman Planting Antitrust Suit Transferred to M.D.N.C.
-----------------------------------------------------------------
The case styled GOODMAN PLANTING COMPANY, LLC and COGHLAN & SONS,
GP, on behalf of themselves and all others similarly situated,
Plaintiffs v. SYNGENTA CROP PROTECTION AG, SYNGENTA CORPORATION,
SYNGENTA CROP PROTECTION, LLC, and CORTEVA, INC., Defendants, Case
No. 3:22-cv-00735, was transferred from the United States District
Court for the Southern District of Mississippi to the United States
District Court for the Middle District of North Carolina on Feb.
17, 2023.
The Clerk of Court for the Middle District of North Carolina
assigned Case No. 1:23-cv-00156-TDS-JEP to the proceeding.
The Goodman Planting case has been consolidated in MDL No. 3062, IN
RE: CROP PROTECTION PRODUCTS LOYALTY PROGRAM AGREEMENTS ANTITRUST
LITIGATION. The case is assigned to the Hon. Judge Thomas D.
Schroeder.
The lawsuit is brought on behalf of similarly situated direct
purchasers of certain crop protection products, which include
herbicides, pesticides, and fungicides, manufactured by the
Defendants, who were harmed by having to purchase CPPs at prices
that were inflated due to Defendants' anticompetitive conduct.
Corteva, Inc. is an American agricultural chemical and seed
company.[BN]
The Defendants are represented by:
Lewis W. Bell, Esq.
WATKINS & EAGER, PLLC
P.O. Box 650
Jackson, MS 39205
Telephone: (601) 965-1977
Facsimile: (601) 965-1901
E-mail: lbell@watkinseager.com
MECC CONTRACTING: Lewis Files Appeal in N.Y. Appellate Div.
-----------------------------------------------------------
DEAN LEWIS has filed an appeal in the lawsuit entitled Dean Lewis,
individually and on behalf of all others similarly situated,
Plaintiff, v. MECC Contracting Inc., et al., Defendants, Case No.
157778/2021, in the Superior Court of New York, New York City.
The case type is stated as Civil Action - General.
MECC Contracting, Inc. operates as a general contracting company.
The appellate case is captioned Dean Lewis, individually and on
behalf of all other persons similarly situated vs. MECC Contracting
Inc., et al., Case No. 23-00986, filed in the New York Appellate
Division, First Judicial Department on February 22, 2023. [BN]
MINNEAPOLIS, MN: Bid for Class Certification in Goyette Suit Denied
-------------------------------------------------------------------
In the case, Jared Goyette, et al., Plaintiffs v. City of
Minneapolis, et al., Defendants, Case No. 20-cv-1302 (WMW/DTS) (D.
Minn.), Judge Wilhelmina M. Wright of the U.S. District Court for
the District of Minnesota denies the Plaintiffs' motion for class
certification.
The Individual Plaintiffs are journalists, photographers, and other
members of the press who filed the action on behalf of themselves
and other similarly situated individuals. The Plaintiff
Communications Workers of America (CWA) is an international labor
union that represents news media workers. Defendant Medaria
Arradondo is the former Chief of Police for Defendant City of
Minneapolis (collectively, City Defendants). Defendant Robert Kroll
was a Minneapolis Police Lieutenant and President of the Police
Officers Federation of Minneapolis. Defendant David Hutchinson is
the Hennepin County Sheriff.
The Plaintiffs commenced the putative class-action lawsuit against
the Defendants in June 2020. They allege violations of the First
Amendment, Fourth Amendment and Fourteenth Amendment to the United
States Constitution in connection with the law enforcement response
to the protests that followed the murder of George Floyd in May
2020.
On June 2, 2020, Plaintiff Jared Goyette moved for class
certification and a temporary restraining order (TRO) to prevent
the Defendants from further violating the constitutional rights of
the press. The Court denied the motion without prejudice. It
concluded that preliminary injunctive relief was unwarranted
because the protests had ceased and Goyette failed to demonstrate
an imminent threat of harm. It observed that, although Goyette's
claims may ultimately be suitable for class-wide resolution, the
class-certification issue was premature because fact discovery is
necessary to determine whether the Rule 23 requirements can be
satisfied.
The magistrate judge's pretrial scheduling order required, as
relevant in the present matter, all fact discovery to be completed
by Dec. 1, 2021. The parties exchanged initial disclosures in March
2021, including more than 6,000 pages of documents produced by City
Defendants. The Plaintiffs served discovery requests on State
Defendants, Kroll and the Hennepin County Sheriff's Office in July
and August 2021, but the Plaintiffs did not serve discovery
requests on City Defendants during this time. In September 2021,
the Plaintiffs filed the now-operative third amended complaint
(TAC).
On Nov. 5, 2021, the Plaintiffs for the first time attempted to
serve discovery requests on City Defendants, providing insufficient
time for City Defendants to respond before the Dec. 1, 2021
fact-discovery deadline. The City Defendants notified the
Plaintiffs that City Defendants would not respond due to the
untimeliness of the requests. Thereafter, the Plaintiffs moved to
modify the pretrial scheduling order. The magistrate judge denied
the motion, and this Court affirmed, concluding that the Plaintiffs
had not acted diligently.
The Plaintiffs now move for an order certifying the following class
solely as to their claims for injunctive relief against City
Defendants: All members of the news media, as the term is used in
Emergency Executive Order 20-69, who are engaged in news gathering
or reporting activities in Minnesota.
The City Defendants oppose class certification, arguing that the
Plaintiffs cannot satisfy Rule 23, Fed. R. Civ. P.
Judge Wright states that to be certified as a class, the Plaintiffs
must first satisfy the four prerequisites of Federal Rule of Civil
Procedure 23(a): numerousity, commonality, typicality, and
adequacy.
Judge Wright finds that (i) the City Defendants do not meaningfully
dispute that the Plaintiffs' proposed class, as defined, likely
would satisfy the numerosity requirement; (ii) the Plaintiffs have
not identified evidence that establishes either a common method by
which MPD officers violated journalists' constitutional rights or a
common cause linking disparate violations of journalists'
constitutional rights; (iii) each Plaintiff's claims involve
distinct types of alleged police misconduct, distinct alleged
constitutional violations and distinct potential defenses, which
will require individualized factual and legal inquiries; and (iv)
because the Plaintiffs have not satisfied the commonality or
typicality prerequisites to class certification, she need not
address the adequacy-of-representation prerequisite.
Judge Wright also states that to be certified as a class, a
plaintiff must satisfy the four prerequisites of Federal Rule of
Civil Procedure 23(a) and one of the three subsections of Federal
Rule of Civil Procedure 23(b). The Plaintiffs contend that class
certification is proper under Rule 23(b)(1)(A), Rule 23(b)(1)(B) or
Rule 23(b)(2). However, because they have failed to satisfy the
commonality and typicality prerequisites to class certification
under Rule 23(a), she need not address any of the Rule 23(b)
requirements.
Based on the foregoing analysis, Judge Wright denies the
Plaintiffs' motion for class certification.
A full-text copy of the Court's Feb. 15, 2023 Order is available at
https://tinyurl.com/2us6ez9e from Leagle.com
NEW AMERICAN: Court Grants in Part Bid to Dismiss Martin Class Suit
-------------------------------------------------------------------
In the case, KATRINA MARTIN, Plaintiff v. NEW AMERICAN CINEMA
GROUP, INC. and MARIE SERRA, Defendants, Case No. 1:22-cv-05982
(JLR) (S.D.N.Y.), Judge Jennifer L. Rochon of the U.S. District
Court for the Southern District of New York, grants in part and
denies in part the Defendants' motion to dismiss the complaint for
lack of subject matter jurisdiction pursuant to Federal Rule of
Civil Procedure 12(b)(1) and for failure to state a claim pursuant
to Rule 12(b)(6).
Martin, on behalf of herself and all others similarly situated,
brings the putative class action against Defendants New American
Cinema Group, Inc. ("NACG," doing business as The Film-Makers'
Cooperative) and Marie Serra, or MM Serra, alleging copyright
infringement, deceptive acts and practices, trade libel, unfair
competition, fraud, and breach of contract under New York law.
NACG is a New York non-profit cooperation that acts as a
"custodian" to "avantgarde and experimental films" and other
artistic works for the benefit of its members. Specifically, the
non-profit's collection includes over 5,000 film titles by more
than 900 filmmakers, including at least one film created by the
Plaintiff entitled "Hanafuda/Jasper Johns." She contends that the
Film is an original work on celluloid film, or a 16mm film print.
She also alleges that, since Jan. 6, 1984, she possesses a federal
copyright registration for the Film (Registration #PA0000206560).
In October 2019, NACG created a digital version of the Film, and
rented it to the Carnegie Museum of Art for its exhibit, "An Art of
Changes: Jasper Johns Prints, 1960-2018." The Plaintiff's Film
played at the museum continuously from Oct. 20, 2019 through Jan.
20, 2020, and therefore was likely viewed by thousands of members
of the public.
On May 6, 2020, the Plaintiff first learned that her Film was
included in the exhibit when a representative from the museum told
her that the museum had rented the Film from Serra and NACG. She
subsequently learned that NACG charged the Carnegie Museum of Art
only $200 for the rental.
The Plaintiff now contends that her usual charge for a similar
showing would have been $850. When she inquired with NACG about the
Film's rental to the museum and any royalties to which she was
entitled, NACG informed her that she owed $1,470 in "back dues."
But, according to her, she and other putative members of the class
do not, and have never had, any obligation to pay the NACG fees or
dues.
The Plaintiff filed the action on July 14, 2022. In the Complaint
-- which she has styled as a class action on behalf of other
artists who have their films in the NACG's possession -- the
Plaintiff primarily alleges that NACG reproduced the Film (and
other class members' films) without authorization or knowledge on
the part of the copyright holder. She also alleges that NACG
created a "derivative work" when it produced a digital version of
her Film by remastering it from an old 16mm film print.
Finally, the Complaint alleges that NACG's "policy of claiming back
dues" instead of providing earned royalties is unauthorized because
the arrangement is not a part of her or other putative class
members' agreements with NACG. She also alleges that some putative
class members have no agreements with NACG, and are still being
charged back dues.
Together, the Plaintiff alleges six claims on behalf of herself and
a putative class: (1) copyright infringement under 17 U.S.C.
Section 504 et seq.; (2) deceptive acts and practices in violation
of N.Y. G.B.L. Sections 349 and 350; (3) trade libel; (4) common
law unfair competition; (5) fraud; and (6) breach of contract.
Notably, the Complaint does not attach any membership agreements or
other contracts.
On Oct. 31, 2022, the Defendants moved to dismiss the Complaint on
two separate grounds: first, on the basis that the Plaintiff is not
alleging a copyright claim but instead a breach of contract claim,
and therefore the Court lacks subject matter jurisdiction; and
second, on the basis that Plaintiff has failed to state a claim on
any of the causes of action alleged in the Complaint.
In support of their motion, the Defendants attach NACG's current
membership agreement, pages from the document that it contends
members agreed to in the 1980s, and pages that appear to show the
Plaintiff's film's undated information sheet. The Plaintiff filed
her opposition to the Defendants' motion on Nov. 14, 2022. The
Defendants filed their reply brief on Nov. 21, 2022.
The Defendants' primary argument for dismissal is that the Court
lacks subject matter jurisdiction because the Plaintiff's federal
copyright claim is just a contract claim, and since the parties are
not diverse, there is no basis for federal jurisdiction.
Judge Rochon denies the Defendants' motion to dismiss for lack of
subject matter jurisdiction. She opines that the Plaintiff has
facially alleged a claim arising under the Copyright Act, 17 U.S.C.
Section 501, et seq. On the face of the Complaint and considering
the contracts at issue, the Plaintiff alleges copyright
infringement that exceeds the scope of the license, and therefore
the claim arises under federal law for purposes of federal
jurisdiction.
Having determined that there is subject matter jurisdiction at this
stage, Judge Rochon turns to whether the Complaint states a claim
upon which relief can be granted under Rule 12(b)(6) for the six
causes of action alleged in the Complaint. She finds that (i) the
Plaintiff has sufficiently alleged that the Defendants took actions
beyond the scope of the Licensing Agreement, and such contentions
can, if proved, sustain a claim for copyright infringement; (ii)
having alleged the existence of a contract, breach, and damages
from that breach, the Plaintiff has adequately pleaded a claim for
breach of contract; (iii) the Plaintiff's Complaint fails to meet
the heightened pleading standards required for allegations of fraud
(Count V).
In addition, Judge Rochon opines that (i) the Plaintiff has not
alleged that the Defendants' conduct was directed at consumers, and
therefore has failed to state a claim under Section 349 (Count II);
(ii) there is no real allegation of intentional infringement and
the Plaintiff has failed to allege fraudulent intent and bad faith
so her unfair competition claim (Count IV) fails; and (iii) because
the Plaintiff's trade libel claim is dismissed, and no class has
been certified, the Court lacks jurisdiction over the putative
class's claims for trade libel.
For the foregoing reasons, Judge Rochon grants in part and denies
in part the Defendants' motion to dismiss. She dismisses Counts II,
III, IV, and V. In addition, she denies the Defendants' conclusory
request for attorneys' fees and costs associated with this motion,
pursuant to 17 U.S.C. Section 505.
A full-text copy of the Court's Feb. 15, 2023 Opinion & Order is
available at https://tinyurl.com/mss3bsrx from Leagle.com.
NEXTGEN LEADS: Danner's Claims Severed & Moved to S.D. California
-----------------------------------------------------------------
In the case, RONDA DANNER, Plaintiff v. NEXTGEN LEADS, LLC, et al.,
Defendants, Case No. 2:22-cv-11498 (E.D. Mich.), Judge Stephen J.
Murphy, III, of the U.S. District Court for the Eastern District of
Michigan, Southern Division, severs the Plaintiffs' claims brought
against Nextgen and transfers them to the U.S. District Court for
the Southern District of California.
Danner sued Defendants NexGen Leads, Leading Healthcare Solutions
(LHS), and Drips Holdings on behalf of a putative class of
plaintiffs for violating the Telephone Consumer Protection Act
(TCPA). She also brought a Florida Telephone Communications Act
claim against LHS. The Plaintiff voluntarily dismissed Drips
Holdings. NextGen then moved to sever and transfer the claims
brought against it to the Southern District of California.
The Plaintiff alleged that NextGen and LHS used automated systems
to make outbound telephonic sales calls and send text messages to
hundreds if not thousands of consumers across the U.S., including
to consumers whose phone numbers are listed on the National Do-Not
call Registry. She sued on behalf of two putative classes of
plaintiffs who were allegedly called or texted in violation of the
TCPA.
The Plaintiff defined the first class as follows: Since June 28,
2018, Plaintiff and all persons within the United States to whose
telephone number Defendants placed (or had placed on their behalf)
two or more telemarketing calls in a 12-month period when the
telephone number to which the telephone calls were made was on the
National Do-Not-Call Registry for more than 30 days at the time of
the calls.
The Plaintiff defined the second class as follows: Since June 28,
2018, Plaintiff and all persons within the United States whose
telephone number Defendants placed (or had placed on their behalf)
two or more telemarketing calls in a 12-month period, including at
least one after the person requested that the calls or messages
stop.
NextGen argued that the Court should sever the claims brought
against it. It also argued that a nearly identical putative class
action lawsuit, Heather Lee Minor v. NextGen Leads, LLC, Case No.
22-cv-0949 (S.D. Cal. June 28, 2022) (Minor Case), was filed
against it in the Southern District of California and that the
Court should apply the first-to-file rule and transfer the case to
the Southern District of California.
Judge Murphy first examines the motion to sever the claims against
NextGen from the claims against LHS. Then, he addresses the motion
to transfer the claims against NextGen to the Southern District of
California.
Judge Murphy explains that courts must consider five factors before
severing claims: whether (1) the claims arise out of the same
transaction or occurrence; (2) the claims present common questions
of law or fact; (3) settlement or judicial economy would be
facilitated; (4) prejudice would be avoided; and (5) different
witnesses and documentary proof are required for separate claims.
Judge Murphy grants the motion to sever because all five factors
favor severing the claims against NextGen. He finds that (1) the
evidence suggests that the claims against NextGen and LHS arise
from separate transactions or occurrences; (2) the Plaintiff
alleged no common facts or law about the conduct of Defendants or
about their liability; (3) severing the claims serves judicial
economy because the Court will not have to manage two disparate
actions in the same lawsuit; (4) the danger of prejudice to NextGen
supports severing the claims brought against it; and (5) because
the Plaintiff intends to offer different evidence to prove her
claims against each Defendant, there is no overlap of evidence.
Judge Murphy grants the motion to transfer. He opines that the
claims against NextGen will be sent to the Southern District of
California because the first-to-file rule applies and equitable
considerations favor applying that rule. To determine whether to
apply the first-to-file rule, district courts generally evaluate
three factors: (A) the chronology of events; (B) the similarity of
the parties involved; and (C) the similarity of the issues or
claims at stake.
Judge Murphy finds that (A) the Plaintiff does not dispute that the
Southern District of California lawsuit was first in time; (B) the
classes in each case need only have substantial overlap; (C)
because the present litigation and the Minor Case have identical
claims, the non-identical claim arises from the same section of the
same statute, and there is substantial overlap between the issues
presented in each case; (D) equitable considerations do not
preclude the Court from applying the first-to-file rule, and he
transfers the claims against NextGen to the Southern District of
California.
Because the Plaintiff voluntarily dismissed Drips Holdings, and
Judge Murphy dismisses NextGen Leads, the only remaining Defendant
is LHS. The Plaintiff has three remaining claims against LHS: (1) a
claim under 47 C.F.R. Section 64.1200(c); (2) a claim under 47
C.F.R. Section 64.1200(d); (3) a claim under Fla. Stat. Section
501.059. The Court will resolve LHS' motion to strike class
allegations in a later order.
In light of the foregoing, the claims against NextGen are severed.
The Clerk of the Court must transfer the claims against NextGen to
the Southern District of California. Because all claims against
NextGen have been severed and transferred, NextGen is dismissed
from the case.
A full-text copy of the Court's Feb. 15, 2023 Opinion & Order is
available at https://tinyurl.com/zayjafnh from Leagle.com.
OHIO STATE: Dismissal of Title IX Claims in Garrett Suit Vacated
----------------------------------------------------------------
In the case, BRIAN GARRETT; NICHOLAS NUTTER, et al., Plaintiffs,
EDWARD GONZALES, JOHN ANTOGNOLI, KENT KILGORE, ROGER BEEDON, ADAM
PLOUSE, DANIEL RITCHIE, MICHAEL SCHYCK, DR. MARK CHRYSTAL, JOEL
DAVIS, and JOHN DOES 1-2, 4-6, 8, 10-15, 17, 19, 21-25, 27, 29-33,
35-46, 48, 50-51, 53, 56-59, 61, 62, 64, 69, 75, 77, 85-86, and
88-92, individually and on behalf of all others similarly situated
(21-3972); ROCKY RATLIFF (21-3974); ERIC SMITH, MARK COLEMAN,
WILLIAM KNIGHT, JACK CAHILL, SCOTT OVERHOLT, ELMER LONG, RYAN
HENRY, MICHAEL GLANE, CHRISTOPHER PERKINS, MICHAEL CALDWELL, THOMAS
ROEHLIG, BRIAN ROSKOVICH, RICK MONGE, THOMAS LISY, ANASTACIO TITO
VAZQUEZ, JR., JOHN MacDONALD, JR.; MAROON MONDALEK, LEO DISABATO,
PETER NATHANSON, JEFFREY LADROW, ANTHONY SENTIERI, and JOHN DOES
1-15 and 17-19 (21-3982); MICHAEL ALF, GARY TILL, ALLEN NOVAKOWSKI;
CHRIS ARMSTRONG, and JOHN DOES 93-97 and 99-101, individually and
on behalf of all others similarly situated (21-4070); MICHAEL
CANALES and JOHN DOE 20 (21-4128), Plaintiffs-Appellants v. THE
OHIO STATE UNIVERSITY, Defendant-Appellee, Case Nos. 21-3972,
21-3974, 21-3982, 21-4070, 21-4128 (6th Cir.), the U.S. Court of
Appeals for the Sixth Circuit:
a. vacates the district court's dismissal of all the
Plaintiffs' Title IX claims and remands to the district
court for further proceedings consistent with its Opinion;
and
b. affirms the district court's dismissal of the Ratliff,
Nutter, and Canales Plaintiffs' retaliation claims and the
denial of all the Plaintiffs' motions for recusal and to
transfer venue.
The disturbing facts of these cases began in 1978 when Ohio State
hired Dr. Richard Strauss, M.D., as an assistant professor of
medicine. From 1978 to 1996, Strauss treated students and
student-athletes in various capacities, including as the official
team doctor for as many as fourteen sports and as an on-campus
student health center physician. Strauss was also a tenured
professor at Ohio State. When Strauss voluntarily and "quietly"
retired in 1998, the university designated him as an Emeritus
Professor even though he had been "quietly placed on administrative
leave" in January 1996 following multiple reports of abuse. While
Strauss was employed by Ohio State, the Plaintiffs, as well as
hundreds of other former students, suffered unspeakable sexual
abuse by Strauss.
In April 2018, former student-athletes publicly accused Ohio State
of covering-up Strauss's abuse. On April 5, 2018, Ohio State hired
the law firm Perkins Coie, LLP to investigate Strauss's conduct and
the extent to which Ohio State knew about it. Ohio State released
Perkins Coie's report in May 2019; the report concluded that
Strauss had sexually abused at least 177 male student-patients, the
majority of whom were student-athletes. See Caryn Trombino & Markus
Funk, Perkins Coie LLP, Report of the Independent Investigation:
Sexual Abuse Committed by Dr. Richard Strauss at The Ohio State
University (Perkins Coie Report) at 1, 43 (May 15, 2019).
The Plaintiffs allege that, as documented in the Perkins Coie
Report, Ohio State knew about Strauss's abuse and, at minimum,
failed to meaningfully investigate it. Ohio State legitimized
Strauss' conduct as ordinary medical care, as various university
officials ignored student complaints -- including one as early
Strauss's first year as team physician in 1979 -- and continued to
employ and promote Strauss, failed to investigate numerous
complaints about Strauss's sexual abuse, hid or failed to maintain
records of abuse complaints and failed to inform students and some
Ohio State staff of the abuse until 2018.
The Plaintiffs allege that Ohio State played a "key and active
role" in "normalizing and perpetuating" Strauss abuse over the
course of decades and that there was a widespread and intentional
culture of silence, cover-up, and deliberate indifference to sex
crimes" within the university. They say that they now know that
Strauss' harassment and abuse was reported to the head coaches of
multiple sports, university administrators, university physicians
and medical directors, and to the head of the Athletic Department
-- only for each of those officials to "turn a blind eye to the
abuse."
But some Plaintiffs allege that they did not and could not have
known about Ohio State's knowledge, and cover-up, of their abuse
until the release of the Perkins Coie Report in 2019. Others allege
that the earliest they could have known about Ohio State's role was
in 2018, but that they did not know the full extent of the
university's involvement until the release of the Perkins Coie
Report in 2019.
In all, 532 Plaintiffs brought 37 separate cases against Ohio State
relating to Strauss' abuse and the university's response. This
appeal concerns five of those suits, consolidated into two appeals
that we hear together. On July 16, 2018, a group of plaintiffs led
by Brian Garrett filed a class action complaint against Ohio State
related to Strauss' abuse, Garrett, et al. v. The Ohio State
University, No. 21-3972. On May 14, 2021, the Garrett class members
filed a "copy-cat class action," Alf, et al. v. The Ohio State
University, No. 21-4070. The Garrett and Alf cases were
consolidated on appeal.
The Garrett and Alf plaintiffs are former Ohio State students or
student-athletes who allege they were abused by Strauss between
1978 and 1998. Rocky Ratliff, the plaintiff in Ratliff, serves as
counsel in his own case, Ratliff v. The Ohio State University, No.
21-3974, and in two others: Nutter, et al. v. The Ohio State
University, No. 21-3982, and Canales, et al. v. The Ohio State
University, No. 21-4128. Those cases were filed on October 25,
2019, June 12, 2019, and May 17, 2021, respectively. All the
Ratliff, Nutter, and Canales plaintiffs are former Ohio State
student-athletes.
Judge Michael Watson handled all cases relating to Strauss in the
Southern District of Ohio. Judge Watson told the parties at a
status conference in January 2019 that he was teaching a class at
The Ohio State University Moritz College of Law, and he thought
"every member of this bench probably, have at one time or another
served as an adjunct professor of Ohio State." No party brought a
recusal motion at that time.
On Sept. 9, 2021, Judge Watson called an emergency status
conference after a reporter contacted the court's public
information specialist, inquiring about a business relationship
between Ohio State and a store Judge Watson's wife owns. He
explained that ethical considerations are the utmost importance to
him personally, to the parties and to the public, as well as the
federal judiciary as a whole.
All the Plaintiffs before the Sixth Circuit filed motions for
recusal and to transfer venue based on the above and Judge Watson's
other connections to Ohio State (namely, his participation in the
"annual Buckeye Cruise for Cancer"). The district court denied the
motions in a detailed opinion.
Ohio State filed motions to dismiss in each case. The district
court granted the motions, concluding that all plaintiffs' Title IX
claims were time-barred by Ohio's two-year statute of limitations,
whether measured by a discovery rule or an occurrence rule.
The Ratliff, Nutter, and Canales Plaintiffs also brought a Title IX
retaliation claim against Ohio State. They asserted that reporting
Strauss' sexual abuse and Ohio State's cover-up was protected
activity. And they alleged that current and former Ohio State
employees and others connected to Ohio State made public comments
on the radio and private statements via phone, email or text, in a
retaliatory attempt to "silence" the Plaintiffs. The district court
dismissed the retaliation claims for a failure to state a claim.
All the Plaintiffs now appeal.
Before the Sixth Circuit heard this appeal, another panel of the
Court reversed the district court's order as it pertained to two
other groups of plaintiffs, citing Snyder-Hill v. Ohio State Univ.,
48 F.4th 686 (6th Cir. 2022). That panel held that the discovery
rule applies to Title IX claims, meaning that a plaintiff's claim
accrues when he "knows or has reason to know" not only that he was
injured but also that "the defendant caused" his injury.
In addressing claims substantially similar to those presented in
the instant case, Snyder-Hill held that the plaintiffs' claims
survive Ohio State's motion to dismiss for three independent"
reasons: until 2018, when the allegations of abuse became public,
(1) plaintiffs plausibly allege that they did not know and lacked
reason to know that Ohio State caused their injury, (2) they
plausibly allege that even if they had investigated further, they
could not have learned of Ohio State's conduct, and (3) some
plaintiffs plausibly allege that they did not know that they were
abused.
The Sixth Circuit concludes that the Ratliff, Nutter, and Canales
Plaintiffs have plausibly alleged all three independent reasons
supporting Snyder-Hill's holding, and the Garrett and Alf
Plaintiffs have plausibly alleged the first two. That is enough for
their claims to survive Ohio State's motion to dismiss.
Next, the Sixth Circuit concludes that the Ratliff, Nutter, and
Canales Plaintiffs' vague allegations are insufficient to state a
claim for Title IX retaliation. It opines that the Plaintiffs have
failed to plead a retaliation claim. At a minimum, they have failed
to allege that the funding recipient, Ohio State, retaliated
against them. There is neither individual liability nor respondeat
superior liability under Title IX; instead an educational
institution is responsible under Title IX only for its own official
decisions. So the Ratliff, Nutter, and Canales Plaintiffs must
adequately allege a claim against Ohio State as an institution.
They have not done so.
Finally, the Sixth Circuit opines that because it concludes that
Judge Watson did not abuse his discretion in denying the motion for
recusal, it also concludes that he did not abuse his discretion in
denying the motions for transfer.
Consistent with its analysis, the Sixth Circuit vacates the
district court's dismissal of all the Plaintiffs' Title IX claims
and remands to the district court for further proceedings
consistent with its Opinion. It affirms the district court's
dismissal of the Ratliff, Nutter, and Canales Plaintiffs'
retaliation claims and the denial of all the Plaintiffs' motions
for recusal and to transfer venue.
A full-text copy of the Court's Feb. 15, 2023 Opinion is available
at https://tinyurl.com/bdh4h57y from Leagle.com.
ARGUED: Larkin E. Walsh, SHARP LAW, LLP, Prairie Village, Kansas,
for Appellants.
Michael H. Carpenter -- carpenter@carpenterlipps.com -- CARPENTER,
LIPPS & LELAND LLP, Columbus, Ohio, for Appellee.
ON BRIEF: Larkin E. Walsh, Rex A. Sharp, Sarah T. Bradshaw, SHARP
LAW, LLP, Prairie Village, Kansas, for the Appellants in 21-3972
and 21-4070.
Michael H. Carpenter, Timothy R. Bricker --
bricker@carpenterlipps.com -- David J. Barthel, CARPENTER, LIPPS &
LELAND LLP, Columbus, Ohio, for the Appellee.
J.C. Ratliff, RATLIFF LAW OFFICES, Marion, Ohio, for Appellants in
21-3982, 21-3974, and 21-4128.
Konrad Kircher, RITTGERS & RITTGERS, Lebanon, Ohio, Adam
Strychaluk, KAUFMAN LIEB LEBOWITZ & FRICK LLP, New York, New York,
for Amici Curiae.
OSMOSE UTILITIES: Davis-Harris Labor Suit Removed to N.D. Ga.
-------------------------------------------------------------
The case styled HALIF DAVIS-HARRIS and AARON TUTT, individually,
and on behalf of all others similarly situated, Plaintiffs v.
OSMOSE UTILITIES SERVICES, INC., Defendant, Case No.
2:22-cv-07551-BRM-JSA, was removed from the United States District
Court for the District of New Jersey to the United States District
Court for the Northern District of Georgia on Feb. 17, 2023.
The Clerk of Court for the Northern District of Georgia assigned
Case No. 3:23-cv-00031 to the proceeding.
As reported in the Class Action Reporter, the suit was initially
filed in the New Jersey Superior Court, Union County, Law Division,
before it was removed to the District of New Jersey on Dec. 28,
2022.
The lawsuit is brought against the Defendant for alleged labor law
violations.
Osmose Utilities Services, Inc. provides infrastructure
construction and support services.[BN]
The Defendant is represented by:
Heather Steele, Esq.
FISHER & PHILLIPS LLP
Two Logan Square, 12th Floor
100 N 18th Street
Philadelphia, PA 19103
Telephone: (610) 230-2134
E-mail: hsteele@fisherphillips.com
- and -
Matthew R. Simpson, Esq.
JonVieve D. Hill, Esq.
FISHER & PHILLIPS, LLP
1230 Peachtree Street NE, Ste 3300
Atlanta, GA 30309
Telephone: (404) 231-1400
Facsimile: (404) 240-4249
E-mail: msimpson@fisherphillips.com
jhill@fisherphillips.com
OTIS WORLDWIDE: Court Junks Darnis Class Action
-----------------------------------------------
Otis Worldwide Corporation disclosed in its Form 10-K report for
the fiscal year ended December 31, 2022, filed with the Securities
and Exchange Commission on February 3, 2023, that on August 12,
2020, a putative class action lawsuit captioned "Geraud Darnis et
al. v. Raytheon Technologies Corporation et al.," was filed in the
United States District Court for the District of Connecticut
against Otis, RTX, Carrier Global Corporation, which was also
separated from UTC in the Separation, each of their directors, and
various incentive and deferred compensation plans. The court
dismissed the class action in its entirety with prejudice.
On September 13, 2021, plaintiffs filed an amended complaint
against the three company defendants only. The named plaintiffs are
former employees of UTC and its current and former subsidiaries,
including Otis and Carrier. They seek to recover monetary damages,
as well as related declaratory and equitable relief, based on
claimed decreases in the value of long-term incentive awards and
deferred compensation under nonqualified deferred compensation
plans allegedly caused by the formula used to calculate the
adjustments to such awards and deferred compensation from RTX,
Carrier, and Otis following the spin-offs of Carrier and Otis and
the subsequent combination of UTC and Raytheon Company.
On September 30, 2022, in response to motions to dismiss filed by
the defendants, the court dismissed the class action in its
entirety with prejudice.
Otis Worldwide Corporation is an elevator and escalator
manufacturing, installation and service company based in
Connecticut.
PACIFICORP: James, et al., File Bid to Amend Complaint
------------------------------------------------------
PacificCorp disclosed in its Form 10-K Report for the fiscal period
ending December 31, 2022 filed with the Securities and Exchange
Commission on February 27, 2023, that the plaintiffs in the case
captioned Jeanyne James et al. v. PacifiCorp et al., Case No.
20CV33885, Circuit Court, Multnomah County, Oregon filed a motion
to amend its complaint in the 2020 Oregon wildfire related class
suit to add unspecified punitive damages amount.
On September 30, 2020, a putative class action complaint against
PacifiCorp was filed, captioned Jeanyne James et al. v. PacifiCorp
et al., Case No. 20CV33885, Circuit Court, Multnomah County,
Oregon. The complaint was filed by Oregon residents and businesses
who seek to represent a class of all Oregon citizens and entities
whose real or personal property was harmed beginning on September
7, 2020, by wildfires in Oregon allegedly caused by PacifiCorp.
On November 3, 2021, the plaintiffs filed an amended complaint to
limit the class to include Oregon citizens allegedly impacted by
the Echo Mountain Complex, South Obenchain, Two Four Two and
Santiam Canyon fires, as well as to add claims for noneconomic
damages. The amended complaint alleges that PacifiCorp's assets
contributed to the Oregon wildfires occurring on or after September
7, 2020 and that PacifiCorp acted with gross negligence, among
other things. The amended complaint seeks the following damages for
the plaintiffs and the putative class: (i) noneconomic damages,
including mental suffering, emotional distress, inconvenience and
interference with normal and usual activities, in excess of $1
billion; (ii) damages for real and personal property and other
economic losses of not less than $600 million; (iii) double the
amount of property and economic damages; (iv) treble damages for
specific costs associated with loss of timber, trees and shrubbery;
(v) double the damages for the costs of litigation and
reforestation; (vi) prejudgment interest; and (vii) reasonable
attorney fees, investigation costs and expert witness fees. The
plaintiffs demand a trial by jury and have reserved their right to
further amend the complaint to allege claims for punitive damages.
In May 2022, the Multnomah Circuit Court granted issue class
certification and consolidated this case with others as described
below.
PacifiCorp requested an immediate appeal of the issue class
certification before the Oregon Court of Appeals.
In January 2023, the Oregon Court of Appeals denied PacifiCorp's
request for appeal.
In February 2023, the plaintiffs filed a motion to amend the
complaint to add punitive damages in an unspecified amount.
On August 20, 2021, a complaint against PacifiCorp was filed,
captioned Shylo Salter et al. v. PacifiCorp, Case No. 21CV33595,
Multnomah County, Oregon, in which two complaints, Case No.
21CV09339 and Case No. 21CV09520, previously filed in Circuit
Court, Marion County, Oregon, were combined. The plaintiffs
voluntarily dismissed the previously filed complaints in Marion
County, Oregon.
The refiled complaint was filed by Oregon residents and businesses
who allege that they were injured by the Beachie Creek fire, which
the plaintiffs allege began on or around September 7, 2020, but
which government reports indicate began on or around August 16,
2020. The complaint alleges that PacifiCorp's assets contributed to
the Beachie Creek fire and that PacifiCorp acted with gross
negligence, among other things.
The complaint seeks the following damages: (i) damages related to
real and personal property in an amount determined by the jury to
be fair and reasonable, estimated not to exceed $75 million; (ii)
other economic losses in an amount determined by the jury to be
fair and reasonable, but not to exceed $75 million; (iii)
noneconomic damages in the amount determined by the jury to be fair
and reasonable, but not to exceed $500 million; (iv) double the
damages for economic and property damages under specified Oregon
statutes; (v) alternatively, treble the damages under specified
Oregon statutes; (vi) attorneys' fees and other costs; and (vii)
pre- and post-judgment interest. The plaintiffs demand a trial by
jury and have reserved their right to amend the complaint with an
intent to add a claim for punitive damages. In May 2022, this case
was consolidated with others as described below.
In May 2022, the Multnomah County Circuit Court granted plaintiffs'
motion to consolidate Shylo Salter et al. v. PacifiCorp, Case No.
21CV33595 (described above) and Amy Allen, et al. v. PacifiCorp,
Case No. 20CV37430 ("Allen") into Jeanyne James et al. v.
PacifiCorp et al., Case No. 20CV33885 (described above).
Plaintiffs' motion to bifurcate issues for trial between class-wide
liability and individual damages was also granted. The Allen case
was filed by five individuals as amended in September 2021 claiming
in excess of $32 million in economic and noneconomic damages, as
well as claims for statutory doubling or trebling of damages,
attorneys' fees and other costs and pre- and post-judgment
interest.
In June 2022, an amended complaint against PacifiCorp was filed,
captioned Tim Goforth et al. v. PacifiCorp, Case No. 20CV37637,
Douglas County, Oregon, in which a previously filed complaint
associated with the Archie Creek, Susan Creek and Smith Springs
Road fires in Douglas County in September 2020 was amended to add
punitive damages.
The complaint alleges (i) PacifiCorp's conduct not only constituted
common law negligence but gross negligence and contributed to or
was the cause of ignition and spread of the aforementioned fires;
(ii) PacifiCorp violated certain Oregon rules and regulations; and
(iii) as an alternative to negligence, inverse condemnation.
The complaint seeks the following damages: (i) economic and
property damages of $11 million under a determination of negligence
or inverse condemnation and subject to doubling under Oregon
statute if applicable; (ii) doubling of those economic and property
damages to $22 million under a determination of gross negligence;
(iii) damages for injuries in excess of $47 million; (iv) punitive
damages not to exceed 10 times the amount of non-economic damages
awarded; (v) all costs of the lawsuit; (vi) pre- and post-judgment
interest as allowed by law; and (vii) attorneys' fees and other
costs. Pursuant to a settlement stipulation agreed to in November
2022, the Douglas County Circuit Court issued an order dismissing
the case with prejudice and without costs, disbursements or
attorney fees to any of the parties.
On August 26, 2022, a putative class action complaint seeking
declaratory and equitable relief against PacifiCorp was filed,
captioned Margaret Dietrich et al. v. PacifiCorp, Case No.
22CV29187, Circuit Court, Multnomah County, Oregon. The complaint
was filed by two Oregon residents individually and on behalf of a
class initially defined to include residents of, business owners
in, real or personal property owners in and any other individuals
physically present in specified Oregon counties as of September 7,
2020 who experienced any harm, damage or loss as a result of the
Santiam, Beachie Creek, Lionshead, Echo Mountain Complex, Two Four
Two or South Obenchain fires in September 2020. The complaint was
amended on September 6, 2022, to seek damages of over $900 million
that were originally demanded on August 4, 2022, pursuant to Oregon
Rule of Civil Procedure 32 H. The amended complaint alleges: (i)
negligence due to alleged failure to comply with certain Oregon
statutes and administrative rules; (ii) gross negligence due to
alleged conscious indifference to or reckless disregard for the
probable consequences of defendant's actions or inactions; (iii)
private nuisance; (iv) public nuisance; (v) trespass; (vi) inverse
condemnation; (vii) accounting/injunction; (viii) negligent
infliction of emotional distress. The amended complaint seeks the
following: (i) an order certifying the matter as a class action;
(ii) economic damages not less than $400 million; (iii) double the
amount of economic and property damages to the extent applicable
under Oregon statute; (iv) reasonable costs of reforestation
activities; (v) doubling and trebling of certain other damages to
the extent applicable under certain Oregon statutes; (vi)
noneconomic damages not less than $500 million; (vii) prejudgment
interest; (viii) an order requiring an accounting with respect to
the amount of damages; (ix) an order enjoining PacifiCorp from
leaving power lines energized in areas of Oregon experiencing
extremely critical fire conditions; (x) an award of reasonable
attorney fees, costs, investigation costs, disbursements and expert
witness fees; and (xi) other relief the court finds appropriate.
The plaintiffs and proposed class demand a trial by jury. On
December 19, 2022, the Dietrich case was consolidated into Jeanyne
James et al. v. PacifiCorp et al., Case No. 20CV33885 (described
above) and is currently stayed.
On September 1, 2022, a complaint against PacifiCorp was filed,
captioned Martin Klinger et al. v. PacifiCorp, Case No. 22CV29674,
Multnomah County, Oregon ("Klinger"). The complaint was filed by
Oregon residents or Oregon property owners who allege damages
resulting from the September 2020 Echo Mountain Complex fires. The
allegations made and damages sought are described below.
On September 1, 2022, a complaint against PacifiCorp was filed,
captioned Jeremiah E. Bowen et al. v. PacifiCorp, Case No.
22CV29681, Multnomah County, Oregon ("Bowen"). The complaint was
filed by Oregon residents, occupants and real and personal property
owners who allege injuries and damages resulting from the September
2020 Echo Mountain Complex fires. The allegations made and damages
sought are described below.
On September 1, 2022, a complaint against PacifiCorp was filed,
captioned James Weathers et al. v. PacifiCorp, Case No. 22CV29683,
Multnomah County, Oregon ("Weathers"). The complaint was filed by
Oregon residents, occupants and real and personal property owners
who allege injuries and damages resulting from the September 2020
Echo Mountain Complex fires. The allegations made and damages
sought are described below.
On September 6, 2022, a complaint against PacifiCorp was filed,
captioned Blair Barnholdt et al. v. PacifiCorp, Case No. 22CV30097,
Multnomah County, Oregon ("Barnholdt"). The complaint was filed by
Oregon residents or Oregon property owners who allege damages
resulting from the September 2020 Echo Mountain Complex fires. The
allegations made and damages sought are described below.
On September 7, 2022, a complaint against PacifiCorp was filed,
captioned Estate of Nancy Darlene Hunter, et al. v. PacifiCorp,
Case No. 22CV30214, Multnomah County, Oregon ("Hunter"). The
complaint was filed by Oregon residents, occupants and real and
personal property owners who allege injuries and damages resulting
from the September 2020 Echo Mountain Complex fires. The
allegations made and damages sought are described below.
On September 7, 2022, a complaint against PacifiCorp was filed,
captioned Willard K. Pratt et al. v. PacifiCorp, Case No.
22CV30217, Multnomah County, Oregon ("Pratt"). The complaint was
filed by Oregon residents, occupants and real and personal property
owners who allege injuries and damages resulting from the September
2020 Echo Mountain Complex fires. The allegations made and damages
sought are described below.
On September 7, 2022, a complaint against PacifiCorp was filed,
captioned April Thompson et al. v. PacifiCorp, Case No. 22CV30451,
Multnomah County, Oregon ("Thompson"). The complaint was filed by
Oregon residents, occupants and real and personal property owners
who allege injuries and damages resulting from the September 2020
Echo Mountain Complex fires. The allegations made and damages
sought are described below.
Portland, Oregon based PacifiCorp, which includes PacifiCorp and
its subsidiaries, is a United States regulated, vertically
integrated electric company serving 1.8 million retail customers,
including residential, commercial, industrial and other customers
in portions of the states of Utah, Oregon, Wyoming, Washington,
Idaho and California.
PHH CORP: Denial of Munoz's Bid to Modify Pretrial Order Flipped
----------------------------------------------------------------
In the case, EFRAIN MUNOZ, et al., Plaintiffs-Appellants v. PHH
CORPORATION, a Maryland corporation, et al., Defendants-Appellees,
Case No. 22-15407 (9th Cir.), the U.S. Court of Appeals for the
Ninth Circuit reverses the district court's denial of the
Plaintiffs' motion to modify a final pretrial order and remands for
further proceedings.
The Plaintiffs appeal the district court's denial of their motion
to modify a final pretrial order in this certified class action
alleging that the Defendants violated the Real Estate Settlement
Procedures Act ("RESPA"), 12 U.S.C. Section 2607.
The final pretrial order established the standard for seeking
relief from the order. The Ninth Circuit states that to introduce
an undisclosed witness or exhibit, the Plaintiffs must satisfy
either one of two independent provisions of the final pretrial
order. Under the first provision, they are required to demonstrate
that the witness is for the purpose of rebutting evidence that
could not be reasonably anticipated at the pretrial conference and
demonstrate that the exhibit is for the purpose of rebutting
evidence that could not have been reasonably anticipated.
The Ninth Circuit holds that the district court abused its
discretion in barring under this first provision one witness and
one exhibit that the Plaintiffs sought to introduce as evidence of
economic injury for purposes of Article III standing. The
Plaintiffs proffered this evidence of economic injury in light of
the Supreme Court's intervening decision in TransUnion v. Ramirez,
141 S.Ct. 2190 (2021), which was decided four weeks after the final
pretrial conference. Prior to TransUnion, the district court held
on summary judgment that the Plaintiffs were not required to
present such evidence because their alleged informational injury
was sufficient to satisfy the injury-in-fact requirement of Article
III standing.
The operative complaint alleged that the Defendants purposefully
provided neither a meaningful disclosure nor a meaningful choice to
its borrowers regarding its captive reinsurance arrangements.
Because this informational injury directly implicated one of the
harms identified by and targeted for elimination by Congress, the
district court relied on Spokeo, Inc. v. Robins, 578 U.S. 330
(2016), to conclude that the Plaintiffs need not allege any
additional harm beyond the one Congress has identified.
Based on this ruling, the parties represented in their joint
pretrial statement that, as to Article III standing, the sole
disputed factual issue for trial concerned proof of the alleged
informational injury alone. The district court adopted the parties'
affirmative representations in its final pretrial order, which did
not list proof of economic injury as a trial issue.
However, after the pretrial conference, TransUnion required the
Plaintiffs to further prove downstream consequences" from their
alleged informational injury because an "asserted informational
injury that causes no adverse effects cannot satisfy Article III.
Because TransUnion's intervening change in the law foreclosed the
Plaintiffs' ability to proceed to trial on an informational injury
theory of standing, the Ninth Circuit says the Plaintiffs could not
have reasonably anticipated the need for their undisclosed evidence
of economic injury. Indeed, the Defendants conceded below that
TransUnion changed the law such that the Plaintiffs could no longer
rely on an informational injury without also proving adverse
effects on a classwide basis.
The Plaintiffs could not have reasonably anticipated the need for
evidence of economic injury five years prior to the final pretrial
conference as a result of Spokeo. As the district court's summary
judgment ruling recognized, Spokeo left open the door for the
Plaintiffs' alleged informational injury alone to confer Article
III standing. Moreover, the Plaintiffs were entitled to rely on the
district court's summary judgment decision and the subsequent final
pretrial order, both of which made clear that evidence of economic
injury was not required for standing purposes.
Because TransUnion's effect on the Plaintiffs' ability to prove
standing could not have been reasonably anticipated at the pretrial
conference, and the Plaintiffs justifiably relied on the district
court's summary judgment ruling and the final pretrial order
allowing them to proceed to trial on an informational injury alone,
the Ninth Circuit rules that the district court abused its
discretion in barring their evidence under the first late
disclosure provision of the final pretrial order.
A full-text copy of the Court's Feb. 17, 2023 Memorandum is
available at https://tinyurl.com/zmkwty6k from Leagle.com.
PLAY THE GAME: Brown Files ADA Suit in S.D. New York
----------------------------------------------------
A class action lawsuit has been filed against Play The Game, Read
The Story, LLC. The case is styled as Lamar Brown, on behalf of
himself and all others similarly situated v. Play The Game, Read
The Story, LLC, Case No. 1:23-cv-01513 (S.D.N.Y., Feb. 23, 2023).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Play the Game, Read the Story --
https://www.playthegamereadthestory.com/ -- is an event center and
meeting place for gamers, and comic book fans.[BN]
The Plaintiff is represented by:
Mars Khaimov, Esq.
10826 64th Avenue, Ste. 2nd Floor
Forest Hills, NY 11375
Phone: (917) 915-7415
Email: mars@khaimovlaw.com
PROASSURANCE CORP: Continues to Defend Alabama Class Suit
---------------------------------------------------------
ProAssurance Corp. disclosed in its Form 10-K Report for the fiscal
period ending December 31, 2022 filed with the Securities and
Exchange Commission on February 27, 2023, that the Company
continues to defend itself from putative class suit in the Northern
District of Alabama.
In June 2020, a putative class action lawsuit was filed against the
Company in the Northern District of Alabama, alleging violations of
the Securities Exchange Act of 1934 and alleging that the Company
made false and misleading statements regarding its Specialty
Property and Casualty segment.
The Company believes the lawsuit is without merit and continues to
defend it vigorously; however, there can be no assurance regarding
the ultimate outcome of the matter.
ProAssurance Corporation is headquartered in Birmingham, Alabama,
and through its subsidiaries provides professional liability
insurance products primarily to physicians, other healthcare
providers, and healthcare facilities in the United States. It also
writes medical technology and life sciences product liability,
legal professional liability business, as well as workers'
compensation through its Eastern subsidiary. The company markets
its products through both specialized independent agents and direct
marketing. For the first nine months of 2019, ProAssurance reported
net earned premiums of $633.1 million and net income of $60.4
million. As of September 30, 2019, shareholders' equity was $1.6
billion.
PROCTER & GAMBLE: Mendoza Sues Over Misleading Representations
--------------------------------------------------------------
Gabriela Mendoza, an individual, on behalf of herself, all others
similarly situated, and the general public v. THE PROCTER & GAMBLE
COMPANY, an Ohio corporation, Case No. 2:23-cv-01382 (C.D. Cal.,
Feb. 23, 2023), is brought against the Defendants for false and
misleading representations in violation of the California Consumer
Legal Remedies Act ("CLRA"), Unfair Competition Law ("UCL"), and
False Advertising Law ("FAL").
The Defendant makes, distributes, sells, and markets a line of
cough and cold treatment products under the brand name "Vicks
Vapo." The products at issue include Children's VapoRub, Children's
VapoPatch, and Children's VapoCream (the "Products"). The Defendant
distributes two separate versions of the Vapo products: one
advertised for adults, and one advertised for children. The Vapo
products advertised for children ("Children's Products") are named
"Children's" and contain illustrations of various objects,
including a cat, butterfly, sun, stars, moon, paper airplane,
clouds, and flowers. The Children's VapoPatch product also contains
an image of a cartoon-like sleeping child. The Children's VapoRub
product explicitly states that the Product is "For children 2
years+".
The front labels of the Vapo products marketed for adults ("Adult's
products") do not have the word "Children," do not contain any
images or drawings, and do not provide an age range. These
representations lead reasonable consumers to believe that the Vapo
products advertised for children are more suitable for children and
the Vapo products advertised for adults are more suitable for
adults. Based on this reasonable belief, consumers are willing to
pay more for the Children's products. Reasonable consumers are
willing to pay more for the Children's Vapo products because they
want products that are specifically formulated for children and are
guaranteed to be safe for children to consume.
The truth, however, is that the Children's Vapo products have the
same formula and ingredients as the Adult's Vapo products. The rear
labels of both the Children's and Adult's VapoCream products state
that the products are "For ages 2 years and up." The rear labels of
both the Children's and Adult's VapoPatch products state that the
products are "For adults and children over 6 years of age under
adult supervision." The rear labels of both the Children's and
Adult's VapoRub products state that the products are for "adults
and children 2 years and over." The Defendant puts the same cough
and cold treatment into two different products with different
labels. Consumers are being deceived and overcharged. The Plaintiff
read and relied upon Defendant's advertising when purchasing the
Products and was damaged as a result, says the complaint.
The Plaintiff purchased the Children's VapoRub and VapoPatch
Products for personal and household use.
The Defendant makes, labels, distributes, sells, and markets the
Vapo products throughout the United States and in California.[BN]
LAW OFFICES OF RONALD A. MARRON
The Plaintiff is represented by:
Ronald A. Marron, Esq.
Michael T. Houchin, Esq.
Lilach Halperin, Esq.
LAW OFFICES OF RONALD A. MARRON
651 Arroyo Drive
San Diego, CA 92103
Phone: (619) 696-9006
Facsimile: (619) 564-6665
Email: ron@consumersadvocates.com
mike@consumersadvocates.com
lilach@consumersadvocates.com
RANCHO MESQUITE: Fails to Prevent Data Breach, Oldham Alleges
-------------------------------------------------------------
MICHEAL OLDHAM, individually and on behalf of all others similarly
situated, Plaintiff v. RANCHO MESQUITE CASINO, INC. dba EUREKA
CASINO HOTEL, Defendant, Case No. 2:23-cv-00304 (D.NV., Feb. 27,
2023) is a data breach class action brought on behalf of Plaintiff
and similarly situated consumers whose sensitive personal
information was stolen by cybercriminals in a massive cyber-attack
at Eureka starting in or around November 9, 2022, and lasting
through on or around November 13, 2022.
The Plaintiff alleges in the complaint that the information stolen
in the Data Breach included individuals' sensitive information,
including at least, full name, Social Security number, and driver's
license number. Additional sensitive data may be involved,
including financial account numbers or debit/credit card numbers
(the "Private Information" or "PII"). Plaintiff and Class Members
face an ongoing and lifetime risk of identity theft, which is
heightened by the exposure of their Social Security numbers.
As a result of the Data Breach, the Plaintiff and Class Members
suffered ascertainable losses in the form of loss of the value of
their private and confidential information, loss of the benefit of
their contractual bargain, out-of-pocket expenses and the value of
their time reasonably incurred to remedy or mitigate the effects of
the attack, the suit alleges.
RANCHO MESQUITE CASINO, INC. dba EUREKA CASINO HOTEL owns and
operates as a chain of hotels. The Company offers facilities for
stay, restaurants, bars, as well as hosts venue for events,
meetings, and weddings. [BN]
The Plaintiff is represented by:
David Hilton Wise, Esq.
WISE LAW FIRM, PLC
421 Court Street
Reno, NV 89501
Telephone: (775) 329-1766
Facsimile: (703) 934-6377
Email: dwise@wiselaw.pro
- and -
Gary M. Klinger, Esq.
MILBERG COLEMAN BRYSON
PHILLIPS GROSSMAN PLLC
227 W. Monroe Street, Suite 2100
Chicago, IL 60606
Telephone: (866) 252-0878
Email: gklinger@milberg.com
RANGE RESOURCES: Objectors' Bid for Fees in Frederick Suit Denied
-----------------------------------------------------------------
In the case, DONALD C. FREDERICK and LOUISE M. FREDERICK, h/w,
MICHAEL A. MAHLE and PAULA M. MAHLE, h/w, DONALD PORTA, and all
other persons similarly situated, Plaintiffs v. RANGE
RESOURCES-APPALACHIA, LLC, Defendant, Civil Action No.
1:08-cv-288-SPB (W.D. Pa.), Judge Susan Paradise Baxter of the U.S.
District Court for the Western District of Pennsylvania denies the
Bigley Objectors' motion for attorney's fees.
The civil action originated from a payment dispute between Range
and a group of plaintiffs who held royalty interests relative to
gas and oil that Range produced and sold.
At all times throughout the litigation, the Plaintiffs have been
represented by Joseph E. Altomare, Esq., who initiated the lawsuit
with the filing of a class action complaint in the Warren County
Court of Common Pleas. At bottom, the complaint alleged that Range
had unlawfully reduced the Plaintiffs' royalty payments by
deducting certain post-production costs ("PPC") that Range had
incurred in the process of bringing gas and oil products to market.
Although the case originated in state court, it was removed to this
Court in October of 2008. Eventually, the parties entered into a
settlement agreement (the "Original Settlement") which was approved
on March 17, 2011, by then-presiding United States District Judge
Sean J. McLaughlin.
As part of the Original Settlement, Range agreed to cap the amount
of PPC that would be deducted from its future royalty payments over
the remaining life of the class members' leases. To that end, the
parties prepared a proposed order for the Court to sign ("Order
Amending Leases"), which would incorporate into the class leases an
agreed-upon formula for computing the future caps on PPC. The Court
approved and entered the Order Amending Leases on March 17, 2011,
contemporaneous with its order approving the Original Settlement.
Unfortunately, the Court's Order Amending Leases contained a
discrepancy that did not conform to the terms of the Original
Settlement agreement. Whereas the Original Settlement agreement had
established a formula for calculating the shale gas PPC cap
utilizing MCFs (i.e., a measurement signifying one thousand cubic
feet of volume), the Order Amending Leases established a formula
that, in the case of "Wet Shale Gas production" and "Dry Shale Gas
production," utilized MMBTUs (a measurement signifying one million
British Thermal Units).
After the Order Amending Leases was entered, Range adjusted its
royalty payments to conform with the terms of that order. In doing
so, however, Range issued payments that were contrary to the terms
of the Original Settlement agreement, since Range calculated the
shale gas PPC caps using MMBTUs, rather than MCFs. Range continued
to pay royalties in this manner for a number of years.
Mr. Altomare became aware of the discrepancy in or around July of
2013 and had some communications about it with Range's attorney,
but no formal action was undertaken to correct the problem until
January 2018, when Mr. Altomare filed a motion on behalf of the
class to enforce the Original Settlement agreement. In this motion,
Mr. Altomare alleged that Range had intentionally underpaid
royalties, and had thus violated the terms of the Original
Settlement, through various "artifices." These "artifices"
consisted of eight different forms of alleged malfeasance on the
part of Range, including Range's continued use of MMBTUs rather
than MCFs when calculating the shale gas PPC caps. In September
2018, Mr. Altomare filed a second motion in which he sought to
correct the MMBTU/MCF discrepancy by obtaining relief under Federal
Rule of Civil Procedure 60(a).
Ultimately, Mr. Altomare negotiated a resolution of the Motion to
Enforce and the Rule 60(a) Motion through a second, class-wide
settlement with Range (the "Supplemental Settlement"). Under the
terms of this agreement, Range agreed to pay the class a one-time
lump sum of $12 million, less any costs and fees awarded to Mr.
Altomare, as compensation for past shortfalls in royalty payments.
Prospectively, Range would adhere to the formula for calculating
shale gas PPC caps as set forth in the Original Settlement
agreement, using MCFs as the relevant volumetric measurement rather
than MMBTUs. To effectuate this change in the subject oil and gas
leases, Range would file with the relevant recorders of deeds a new
order amending the leases (the "Amended Order Amending Leases"),
which would incorporate into each lease the agreed-upon formula for
calculating future PPC caps. In exchange, the class would grant
Range a broad release of all putative claims, including all claims
set forth in the Motion to Enforce.
The Supplemental Settlement, like the Original Settlement, required
court approval, and the principal parties filed the requisite
motion for court approval in April of 2019. ECF No. 135. Extensive
briefing and motions practice then ensued. On July 16, 2019, Mr.
Altomare filed an application for supplemental attorney's fees in
which he sought an award of $2.4 million, plus 20% of the future
benefits to the class over a ten-year period. The prospective
element of his fee application carried an estimated value of $2.6
million, bringing his total fee request to approximately $5
million.
Objections were soon raised by a number of dissatisfied class
members who believed that the Supplemental Settlement was unfair
and that Mr. Altomare's request for additional fees was
unjustified. Generally, the objectors fell into two groups, which
the Court collectively identified as the "Aten Objectors" and the
"Bigley Objectors." In addition to opposing the Supplemental
Settlement and Mr. Altomare's request for supplemental fees, the
Bigley Objectors filed a motion asking the Court to remove Mr.
Altomare as class counsel.
After conducting a fairness hearing and reviewing additional
post-hearing submissions, the Court issued a Memorandum Opinion and
Order on March 31, 2022 in which it approved the Supplemental
Settlement, denied the Bigley Objectors' motion to remove Mr.
Altomare as class counsel, and granted Mr. Altomare's fee
application in part.The Court's ruling was appealed by certain
objectors and, on Jan. 26, 2023, the U.S. Court of Appeals for the
Third Circuit issued an order of affirmance. In the interim, the
Bigley Objectors filed the pending motion for an award of counsel
fees.
Having carefully considered the Bigley Objectors' petition, Judge
Baxter concludes that it must be denied. As previously discussed by
the Court, the Bigley Objectors raised four main arguments. First,
they asserted that the Supplemental Settlement should be rejected
on the grounds that the Class Counsel inadequately represented the
class and has a demonstrable conflict of interest with class
members. Second, they suggested that Mr. Altomare may have
submitted fraudulent time entries in connection with his fee
application. Separate from this, the Bigley Objectors argued that
the fee request is excessive under the circumstances of the case
and in light of the results achieved by Mr. Altomare. Finally, the
Bigley Objectors asserted that, if the Court did not reject the
Supplemental Settlement, then they should at least be permitted to
opt out of it.
When all the foregoing circumstances are taken into consideration,
Judge Baxter cannot say that the Bigley Objectors appreciably
assisted the Court in its determination whether to approve the
Supplemental Settlement or its determination of an appropriate fee
award to Mr. Altomare. Moreover, she did not adopt any objection
lodged by the Bigley Objectors that was not independently derived
from the Court's own observations, based on its familiarity with
the extensive case record or applicable law. Thus, she cannot say
that the Bigley Objectors' involvement in these proceedings
"improved the settlement or otherwise enhanced its review."
Based upon the foregoing reasons, Judge Baxter denies the Bigley
Objectors' motion for attorney's fees. An appropriate order
follows.
A full-text copy of the Court's Feb. 15, 2023 Memorandum Opinion is
available at https://tinyurl.com/2nmrwhz2 from Leagle.com.
RISKIFIED LTD: Continues to Defend Securities Class Suit
--------------------------------------------------------
Riskified Ltd. disclosed in its Form 20-F Report for the fiscal
period ending December 31, 2022 filed with the Securities and
Exchange Commission on February 24, 2023, that the Company
continues to defend a putative securities class suit.
In May 2022, a putative securities class action complaint was filed
in federal court in the United States by certain of the
shareholders against the Company thus, certain of its current and
former officers and directors, and its underwriters alleging
violations of the Securities Act in connection with our IPO-related
disclosures, and seeking unspecified damages. The lawsuit is
captioned In re Riskified Ltd. Securities Litigation, 22 Civ. 3545
(DLC) (S.D.N.Y.). Plaintiffs filed an amended complaint on
September 15, 2022.
The Company moved to dismiss the amended complaint on October 28,
2022, and in response, on November 28, 2022, plaintiffs filed a
second amended complaint.
The Company moved to dismiss the second amended complaint on
January 20, 2023.
Plaintiffs filed a brief opposing its motion to dismiss on February
21, 2023, and briefing on the motion remains ongoing.
The Company believed the lawsuit is without merit and intend to
defend the case vigorously.
Riskified is an eCommerce risk management platform that uses
machine learning to identify fraud.[BN]
ROGER WILLIAMS: Smith Appeals Racial Discrimination Claim Dismissal
-------------------------------------------------------------------
JIMMY SMITH is taking an appeal from a court order in his lawsuit
entitled Jimmy Smith, individually and on behalf of all others
similarly situated, Plaintiff, v. Roger Williams University Law
School, Defendant, Case No. 1:21-cv-00133-PJB, in the U.S. District
Court for the District of Rhode Island.
As reported in the Class Action Reporter on April 15, 2021, the
lawsuit arose after Roger Williams Law School (RWU) purposely gave
the Plaintiff an unfair hearing and edited the Zoom hearing video
so that his rights on appeal were not as live.
Mr. Smith says that Roger Williams did not provide a fair hearing
to him during the honor board process and subjected him to
expulsion without an adequate opportunity to defend himself. His
complaints were dismissed arbitrarily.
On Apr. 10, 2022, the Defendant filed a motion to dismiss for
failure to state a claim, which the Court granted in part and
denied in part through an Order entered by Judge Paul J. Barbadoro.
Accepting all of Mr. Smith's well-pleaded facts as true, the Court
found that Mr. Smith has failed to state claim for racial
discrimination but has adequately set forth facts to support a
claim for breach of contract. The Defendant's motion to dismiss was
granted as to the Plaintiff's racial discrimination claims and
denied as to Plaintiff's breach of contract claim.
The appellate case is captioned Smith v. Roger Williams University
School of Law, Case No. 23-8014, in the United States Court of
Appeals for the First Circuit, filed on February 22, 2023. [BN]
Plaintiff-Petitioner JIMMY SMITH, individually and on behalf of all
others similarly situated, appears pro se.
Defendant-Respondent ROGER WILLIAMS UNIVERSITY SCHOOL OF LAW is
represented by:
Steven M. Richard, Esq.
Caitlyn Smith, Esq.
NIXON PEABODY LLP
1 Citizens Plaza, 5th Floor
Providence, RI 02903
Telephone: (401) 454-1020
(401) 499-7391
SELIP & STYLIANOU: Vitriol Sues Over Debt Collection Harassment
---------------------------------------------------------------
VICTOR VITRIOL, on behalf of himself and all others similarly
situated, Plaintiff v. SELIP & STYLIANOU, LLP, Defendant, Case No.
506037/2023 (N.Y. Sup. Ct., Kings Cty., February 24, 2023) is a
class action against the Defendant for violations of the Fair Debt
Collection Practices Act.
According to the complaint, the Defendant is engaged in unlawful
debt collection practice by sending communication directly to the
Plaintiff's home address despite its knowledge that the Plaintiff
was represented by a counsel. The said communication contained an
Order stating that summary judgment had been awarded causing the
Plaintiff to become extremely upset and frightened. The Plaintiff
specifically retained an attorney to handle the matter, and yet was
harassed by the Defendant in an effort to collect the outstanding
debt. As a result of the Defendant's invasion of individual privacy
and harassment, the Plaintiff has suffered emotional distress.
Selip & Stylianou, LLP is a debt collection company based in
Woodbury, New York. [BN]
The Plaintiff is represented by:
Uri Horowitz, Esq.
HOROWITZ LAW, PLLC
14441 70th Road
Flushing, NY 11367
Telephone: (718) 705-8700
E-mail: uri@horowitzlawpllc.com
SIMMONS FIRST: Pace Class Suit Settlement Wins Final Nod
--------------------------------------------------------
Simmons First National Corp. disclosed in its Form 10-K Report for
the fiscal period ending December 31, 2022 filed with the
Securities and Exchange Commission on February 27, 2023, that the
Circuit Court of Boone Country gives final approval to the Pace
class suit settlement in January 2023.
On January 14, 2020, Susanne Pace filed a putative class action
complaint in the Circuit Court of Boone County, Missouri against
Landmark Bank, formerly a wholly-owned subsidiary of The Landrum
Company, to which Simmons Bank is a successor by merger in
connection with the Company's acquisition of The Landrum Company,
which closed in October 2019. The complaint alleges that Landmark
Bank improperly charged overdraft fees where a transaction was
initially authorized on sufficient funds but later settled negative
due to intervening transactions.
The complaint asserts a claim for breach of contract, which
incorporates the implied duty of good faith and fair dealing.
Plaintiff seeks to represent a proposed class of all Landmark Bank
checking account customers from Missouri who were allegedly charged
overdraft fees on transactions that did not overdraw their checking
account.
Plaintiff seeks unspecified actual, statutory, and punitive damages
as well as costs, attorneys' fees, prejudgment interest, an
injunction, and other relief as the Court deems proper for herself
and the putative class.
Simmons Bank denies the allegations but entered into a settlement
agreement and release with the plaintiffs on behalf of themselves
and the proposed class to resolve this matter, which settlement
received the court’s final approval in January 2023.
Simmons First National Corporation, an Arkansas corporation
organized in 1968, is a financial holding company registered under
the Bank Holding Company Act of 1956, as amended.
SKAV DINER: Villatoro Suit Seeks Unpaid Wages for Restaurant Staff
------------------------------------------------------------------
ANDRES VILLATORO, individually and on behalf of all others
similarly situated, Plaintiff v. SKAV DINER INC. d/b/a CELEBRITY
DINER, LOUKAS RENIERS and GEORGE NERANTZINIS, Defendants, Case No.
2:23-cv-01477 (E.D.N.Y., February 24, 2023) is a class action
against the Defendants for violations of the Fair Labor Standards
Act and the New York Labor Law including failure to pay overtime
wages, failure to pay minimum wages, and failure to provide annual
wage notices.
The Plaintiff worked as a restaurant worker for the Defendants from
2006 through February 6, 2023.
Skav Diner Inc., doing business as Celebrity Diner, is a restaurant
owner and operator, located at 312 Jericho Turnpike, Syosset, New
York. [BN]
The Plaintiff is represented by:
Jacob Aronauer, Esq.
THE LAW OFFICES OF JACOB ARONAUER
225 Broadway, 3rd Floor
New York, NY 10007
Telephone: (212) 323-6980
E-mail: jaronauer@aronauerlaw.com
SULLIVAN PROPERTIES: Jimenez Sues Over Unlawful Labor Practices
---------------------------------------------------------------
EVA JIMENEZ, an individual, on behalf of herself and other
similarly aggrieved employees, Plaintiff v. SULLIVAN PROPERTIES,
INC., a California corporation itself and doing business as
SULLIVAN PROPERTY MANAGEMENT; MARCO VARTANIAN, an individual; MARY
GLENN, an individual; and DOES 1 through 50, inclusive, Defendants,
Case No. 23STCV03570 (Cal. Super., Los Angeles Cty., Feb. 17, 2023)
is a class action brought against the Defendants for fraud; breach
of contract; breach of statutory obligation under the California
Labor Code; common count; and unfair business practices under the
California Business and Professions Code.
The Plaintiff was employed by the Defendants from August 12, 2020
and continuing until at least the date this action was filed, as
the resident manager of apartment complexes owned or operated by
Defendants located in Bellflower, California.
The Plaintiff says that she had serial written employment
agreements or contracts with Defendants which were drafted such as
to appear to have complied with the requirements of Industrial
Welfare Commission Order. She submitted time records to Defendants
per their request, but Defendants failed to accurately compensate
her in amounts which would accurately reflect the number of hours
reported, including overtime. Further, the Plaintiff asserts that
she was not fully compensated by Defendants for the time she worked
for the Defendants.
Sullivan Properties, Inc. is a property management services
provider based in California.[BN]
The Plaintiff is represented by:
Kenneth F. Moss, Esq.
LAW OFFICE OF KENNETH F. MOSS
20335 Ventura Blvd., Suite 430
Woodland Hills, CA 91364
Telephone: (818) 340-1414
SUNSTONE RED: Bid for Summary Judgment in Velasquez Suit Granted
----------------------------------------------------------------
In the case, MARIANELLA VELASQUEZ, ETC., Appellant-Respondent v.
SUNSTONE RED OAK, LLC, ETC., ET AL., Respondents-Appellants,
2019-11119, Index No. 51015/16 (N.Y. App. Div.), the Appellate
Division of the Supreme Court of New York, Second Department:
a. dismisses the appeal from Judge Helen M. Blackwood's
Feb. 5, 2019 order as academic in light of the
determination on the cross-appeal;
b. reverses the order insofar as cross-appealed from, on the
law;
c. grants the Defendants' cross-motion for summary judgment
dismissing the complaint; and
d. awards one bill of costs to the Defendants.
In a putative class action to recover damages for violations of
Labor Law article 6, the Plaintiff appeals, and the Defendants
cross-appeal, from an order of the Supreme Court, Westchester
County (Judge Helen M. Blackwood), dated Feb. 5, 2019. The order,
insofar as appealed from, denied that branch of the Plaintiff's
motion which was to impose sanctions against the Defendants for
spoliation of evidence. The order, insofar as cross-appealed from,
denied the Defendants' cross-motion for summary judgment dismissing
the complaint.
In 2014 and 2015, the Plaintiff, through a staffing agency known as
Interstate Staffing, Inc., worked as a server at catered events
held at the Defendants' hotel. In January 2016, she commenced the
putative class action to recover damages for violations of Labor
Law Section 196-d, alleging that the Defendants were her and other
servers' employers , that the Defendants imposed a mandatory
service charge on contracts for catered events and did not
"disclaim" that the charge was not a gratuity, that a reasonable
customer would believe that the service charge was a gratuity, and
that the Defendants failed to distribute the service charge to
servers, including her.
The Defendants interposed an answer, asserting, inter alia, that
they were not the Plaintiff's employer or 'joint employer' within
the meaning of the law.
The Plaintiff moved, inter alia, to impose sanctions against the
Defendants for spoliation of evidence relevant to whether the
latter adequately disclaimed that the service charge was not a
gratuity. The Defendants cross-moved for summary judgment
dismissing the complaint, arguing, among other things, that the
evidence demonstrated, as a matter of law, that the plaintiff was
not their employee.
By order dated Feb. 5, 2019, the Supreme Court, inter alia, denied
that branch of the Plaintiff's motion and the Defendants'
cross-motion. The Plaintiff appeals from so much of the order as
denied that branch of her motion which was to impose sanctions
against the defendants for spoliation of evidence. The Defendants
cross-appeal from so much of the order as denied their cross-motion
for summary judgment dismissing the complaint.
The Appellate Division holds that the Defendants established, prima
facie, that the Plaintiff was not their employee. It says the
record demonstrates that Interstate Staffing recruited the
Plaintiff, sent her to work at events at the hotel, and paid her.
Interstate Staffing sent a supervisor to each event to supervise
the workers from Interstate Staffing. The workers from Interstate
Staffing did not wear the hotel's logo, and they were dressed
differently from hotel employees. If a worker misbehaved on the
job, the hotel staff would notify the supervisor from Interstate
Staffing to deal with the problem.
The Defendants had no authority to hire or fire the workers, had no
authority to determine compensation, hours, or employment
schedules, and did not maintain employee records. The hotel
employees first met with the workers right before each event to
review the particulars of the event. The supervisor from Interstate
Staffing signed the workers in and out.
In opposition to the Defendants' prima facie showing, the Plaintiff
failed to raise a triable issue of fact. Her contentions that the
Defendants had the authority to directly fire and discipline her
and that they had more than incidental control over the work are
not supported by the record.
Furthermore, even assuming that the special employment doctrine is
applicable in this context, the Appellate Division holds that the
Defendants demonstrated, prima facie, that they did not exert a
sufficient degree of control over the Plaintiff's work so as to
render her a special employee of the Defendants. In opposition, the
Plaintiff failed to raise a triable issue of fact.
Accordingly, the Supreme Court should have granted the Defendants'
cross-motion for summary judgment dismissing the complaint. In
light of the Appellate Division's determination on the
cross-appeal, the appeal has been rendered academic.
A full-text copy of the Court's Feb. 15, 2023 Decision & Order is
available at https://tinyurl.com/2p8w5k8b from Leagle.com.
Leeds Brown Law, P.C., Carle Place, NY (Michael A. Tompkins of
counsel), for the Appellant-Respondent.
Meltzer, Lippe, Goldstein & Breitstone LLP, Mineola, NY (Gerald
Waters -- gwaters@meltzerlippe.com -- of counsel), for the
Respondents-Appellants.
SUPER MICRO COMPUTER: Court OKs Settlement in Shareholder Suit
--------------------------------------------------------------
Super Micro Computer, Inc. disclosed in its Form 10-Q report for
the quarterly period ended December 31, 2022, filed with the
Securities and Exchange Commission on February 3, 2023, that on
February 8, 2018, two putative class action complaints were filed
against the Company, the Company's Chief Executive Officer, and the
company's former Chief Financial Officer in the U.S. District Court
for the Northern District of California, namely "Hessefort v. Super
Micro Computer, Inc., et al.," No. 18-cv-00838 and "United Union of
Roofers v. Super Micro Computer, Inc., et al.," No. 18-cv-00850.
The complaints contain similar allegations, claiming that the
defendants violated Section 10(b) of the Securities Exchange Act
due to alleged misrepresentations and/or omissions in public
statements regarding recognition of revenue. The court subsequently
appointed New York Hotel Trades Council & Hotel Association of New
York City, Inc. Pension Fund as lead plaintiff. The lead plaintiff
then filed an amended complaint naming the company's Senior Vice
President of Investor Relations as an additional defendant.
On June 21, 2019, the lead plaintiff filed a further amended
complaint naming the Company's former Senior Vice President of
International Sales, Corporate Secretary, and Director as an
additional defendant.
On July 26, 2019, the company filed a motion to dismiss the
complaint. On March 23, 2020, the Court granted the Company's
motion to dismiss the complaint, with leave for lead plaintiff to
file an amended complaint within 30 days. On April 22, 2020, lead
plaintiff filed a further amended complaint.
On June 5, 2020, the company filed a motion to dismiss the further
amended complaint, the hearing for which was calendared for
September 23, 2020; however, the court held a conference on
September 15 to discuss how the court could efficiently address the
recent SEC settlement agreement.
The parties stipulated to allow plaintiffs to further amend the
complaint solely to add allegations relating to the SEC settlement.
On October 14, 2020, plaintiffs filed a Fourth Amended Complaint.
On October 28, 2020, defendants filed a supplemental motion to
dismiss. On March 29, 2021, the Court granted in part and denied in
part defendants' motions to dismiss. Plaintiffs' claims under
Sections 10(b) and 20 of the Exchange Act were dismissed with
prejudice as against the company's former head of Investor
Relations, Perry Hayes. Plaintiffs' Section 10(b) claim, but not
the Section 20 claim, was likewise dismissed as to Wally Liaw, a
founder, former director, and former SVP of International Sales.
The court denied the motions to dismiss the Section 10(b) and
Section 20 claims against the company, Charles Liang, and Howard
Hideshima, the company's former CFO. On March 11, 2022, the
company, together with the individual defendants, agreed in
principle with plaintiff's counsel to settle the action.
On April 8, 2022, the parties entered into a stipulation of
settlement, pursuant to which and subject to court approval,
plaintiff will dismiss with prejudice and release on behalf of a
class of shareholders all claims against defendants, including the
Company, in exchange for payment of $18,250,000, of which sum
$2,000,000 will be funded by the Company.
On May 25, 2022, the court vacated the hearing on preliminary
approval of the proposed settlement scheduled for June 2, 2022,
stating that the unopposed motion was suitable for disposition
without oral argument. All settlement funds have been transferred
into an account controlled by the settlement's escrow agent. On
November 8, 2022, the Court granted preliminary approval and
calendared a hearing on March 2, 2023 for final approval.
Super Micro Computer, Inc. is a Silicon Valley-based provider of
accelerated compute platforms that are server and storage systems.
SUPRAGENIX LLC: Bailey Sues Over Mislabeled Weight Gainer Pills
---------------------------------------------------------------
CALVIN BAILEY, individually and on behalf of all others similarly
situated, Plaintiff v. SUPRAGENIX LLC, D/B/A CB-1 WEIGHT GAINER,
Defendant, Case No. 704194/2023 (N.Y. Sup., Queens Cty., Feb. 27,
2023) seeks to redress the Defendant's alleged false, misleading,
and deceptive advertising and marketing campaign built upon the
misleading claim that CB-1 Weight Gainer pills is "Clinically
Tested."
The Plaintiff alleges in the complaint that the Defendant failed to
disclose the critical fact that the clinical trial upon which
Defendant relies utilized double the CB-1 dosage that Defendant's
packaging label instructs consumer purchasers to use. The
Defendant's so-called study underlying its "Clinically Tested"
claim is a self-funded and self-serving study that was neither
published nor peer reviewed in well-accepted medical literature,
and was designed using unequal groups and double the CB-1 dosage to
skew the results so Defendant could make false, misleading and
deceptive "Clinically Tested" claims to consumers about CB-1, says
the suit.
SUPRAGENIX LLC, D/B/A CB-1 WEIGHT GAINER manufactures and sells
dietary and nutritional supplements. [BN]
The Plaintiff is represented by:
James R. Denlea, Esq.
Jeffrey I. Carton, Esq.
Steven R. Schoenfeld, Esq.
2 Westchester Park Drive, Suite 410
White Plains, NY 10604
Telephone: (914) 331-0100
Facsimile: (914)331-0105
Email: idenlea@denleacarton.com
icarton@denleacarton.com
sschoenfeld@denleacarton.com
-and -
Philip M. Smith, Esq.
KRAVIT SMITH LLP, Esq.
75 South Broadway, Suite 400
White Plains, NY 10601
Telephone: (646) 493-8004
Facsimile: (917) 858-7101
Email: psmith@kravitsmithllp.com
TAPESTRY INC: Court Denies Bid to Dismiss Brooks Class Complaint
----------------------------------------------------------------
In the case, VALERIE BROOKS, Plaintiff v. TAPESTRY, INC.,
Defendant, Case No. 2:21-cv-00156-DAD-JDP (E.D. Cal.), Judge Dale
A. Drozd of the U.S. District Court for the Eastern District of
California denies the Defendant's motion to dismiss and its request
for judicial notice.
On Jan. 26, 2021, Brooks filed the complaint initiating this
disability discrimination action against Tapestry, d/b/a/Kate
Spade. On Dec. 16, 2021, the Plaintiff filed the operative first
amended complaint ("FAC"), in which she asserted a claim under the
Americans with Disabilities Act ("ADA") and a claim under
California's Unruh Civil Rights Act ("the Unruh Act").
The Plaintiff alleges she is a visually impaired and legally blind
individual residing in Sacramento, California. In order to read
website content using her computer, she requires screen-reading
software, which vocalizes the visual information found on a
computer screen. For screen-reading software to function, the
information on a website must be capable of being rendered into
text. The World Wide Web Consortium, an international website
standards organization, published Web Content Accessibility
Guidelines to provide guidance on how to make websites accessible
to blind and visually impaired individuals who use screen-reading
software programs.
The Defendant owns, leases, or operates brick-and-mortar retail
stores throughout the United States, including in California, and
provides goods and services to the public through its physical
stores and its website (www.katespade.com). The Website offers
consumers access to the same goods and services offered at the
Defendant's physical locations.
The Website allows consumers to purchase goods sold in the
Defendant's stores, purchase goods online for in-store pickup, find
the nearest store location, access discounts and special offers
received on the website" that are redeemable in defendant's
physical stores, and arrange for in-store appointments. In
addition, goods purchased on the Website can be returned in person
at the Defendant's physical stores.
Using her screen-reader software, the Plaintiff visited the Website
to purchase apparel and arrange for in-store pickup. She alleges
that she was unable to accomplish her purpose of purchasing apparel
from the Defendant due to multiple accessibility barriers she
encountered on the Website.
The Plaintiff contends that due to the inaccessibility of the
Defendant's website, blind and visually impaired customers such as
the Plaintiff, who need screen-readers, cannot fully and equally
use or enjoy the facilities and services Defendant offers to the
public on its website. According to her, the Defendant's denial of
full and equal access to its website, and therefore denial of its
products and services offered thereby and in conjunction with its
physical locations, is a violation of her rights under the ADA and
the Unruh Act.
The Plaintiff brings the putative class action lawsuit on behalf of
a nationwide class of "all legally blind individuals who have
attempted to access the Defendant's website by the use of a screen
reading software during the applicable limitations period up to and
including final judgment in this action."
On behalf of herself and the putative class, she seeks permanent
injunctive relief to cause a change in the Defendant's corporate
policies, practices, and procedures so that its website will become
and remain accessible to plaintiff and other blind and visually
impaired consumers, specifically by requiring it to comply with the
Web Content Accessibility Guidelines in the development and
operation of its website. The Plaintiff also seeks statutory
damages under the Unruh Act on behalf of a California subclass.
On Dec. 16, 2022, the Defendant filed the pending motion to dismiss
pursuant to Rule 12(b)(1) and 12(b)(6) of the Federal Rules of
Civil Procedure. It also filed a request for judicial notice of
documents reflecting the Plaintiff's extensive ADA litigation
history and demonstrating her status as a serial ADA litigant. On
Dec. 30, 2022, the Plaintiff filed an opposition to the pending
motion to dismiss, and on Jan. 9, 2023, the Defendant filed its
reply thereto.
In its pending motion, the Defendant first argues that the
Plaintiff's FAC should be dismissed because the Court lacks subject
matter jurisdiction over her ADA claim due to her failure to
adequately allege standing under Article III and the ADA. It next
argues that the Plaintiff has failed to state cognizable claims
under the ADA and the Unruh Act because the FAC does not
sufficiently allege that any of the purported barriers on the
website impeded her from accessing the goods and services offered
at the Defendant's retail stores.
As to whether the Plaintiff has sufficiently alleged standing under
Article III and the ADA, Judge Drozd denies the Defendant's request
for judicial notice because the documents that it requests be
judicially noticed are irrelevant to resolution of the pending
motion. He also finds that the allegations of the Plaintiff's FAC
sufficiently state a nexus between the Defendant's website and its
retail locations. Accordingly, the Defendant's motion to dismiss
under Rule 12(b)(1) is denied.
As to whether the Plaintiff has stated a cognizable ADA claim,
Judge Drozd finds that the Plaintiff has adequately alleged a nexus
connecting the Defendant's website with its retail locations. Most
notably, he says the Plaintiff has alleged that customers can order
products on the Website for in-store pickup, which plaintiff tried
but was unable to accomplish due to the accessibility barriers she
encountered. The Plaintiff also alleges several other features of
the Website that relate to its retail locations and connect
customers to the goods and services offered in store. Accordingly,
he denies the Defendant's motion to dismiss the Plaintiff's ADA
claim under Rule 12(b)(6).
As to the Defendant's move to dismiss the Plaintiff's Unruh Act
claim, which it argues necessarily fails because her ADA claim
fails, Judge Drozd does not address the parties' respective
arguments with regard to the Plaintiff's Unruh Act claim because he
declines to exercise supplement jurisdiction over the Plaintiff's
Unruh Act claim. He says the district courts have declined to
exercise supplemental jurisdiction over Unruh Act claims where the
litigation was not in its very late stages and where those courts
had not yet addressed or ruled on the merits of the ADA claim.
For the reasons he set forth, Judge Drozd denies the Defendant's
request for judicial notice and motion to dismiss. Pursuant to 28
U.S.C. Section 1367(c)(4), he declines to exercise supplemental
jurisdiction over the Plaintiff's Unruh Act claim. He dismisses the
Plaintiff's Unruh Act claims without prejudice to the Plaintiff
refiling that claim in state court.
Within 14 days from the date of entry of the Order, the parties
will meet and confer regarding further scheduling of the case and
will file a joint status report to inform the Court of their
proposal for further case scheduling.
A full-text copy of the Court's Feb. 15, 2023 Order is available at
https://tinyurl.com/5umc68ev from Leagle.com.
TENAHA, TX: Orders Denying 4th Fees Motion in Morrow Suit Vacated
-----------------------------------------------------------------
In the case, James Morrow; Stephen Stuart Watson; Amanee Busby;
Yuselff Dismukes; Linda Dorman; Marvin Pearson; Jennifer
Boatwright; Ronald Henderson; Javier Flores; William Flores,
Plaintiffs-Appellants v. Michael Baker, City of Tenaha Mayor, in
His Official Capacity, Defendant-Appellee, Case No. 21-40922 (5th
Cir.), the Court of Appeals for the Fifth Circuit vacates the
district court's April 12, 2021 and Nov. 24, 2021 orders denying
the fourth fees motion, and remands for further proceedings
consistent with its Opinion.
At issue is whether the district court erred in this settled
class-action by denying the last of four interim motions for
attorney's fees as untimely, based on an oral pronouncement by the
court during a non-transcribed, unrecorded status conference which
purported to set a deadline to file the motion.
The 2008 class action against various officials of the City of
Tenaha and Shelby County, Texas, claimed Fourth and Fourteenth
Amendment violations by law enforcement. The parties' settlement
agreement included a consent decree, which required the Defendants
to implement specific policies and follow monitoring procedures,
with a court-appointed monitor to oversee the Defendants'
compliance with those procedures. The decree's effective term of
four years could be modified by the court upon motion by a party.
The decree provided the Defendants would pay the Plaintiffs'
attorney's fees as previously agreed to by the parties, which
referred to a June 15, 2012 mediation proposal. Pursuant to that
proposal, the parties: settled on fees already incurred; and
stipulated Plaintiffs' counsel anticipated future fees which
remained billable and/or subject to determination by the Court. An
August 2013 order approved the consent decree.
Relying on the Defendants' agreement to pay attorney's fees and 42
U.S.C. Section 1988 (allowing court to award attorney's fees to
prevailing party in certain civil-rights proceedings), the
Plaintiffs moved in September 2016 for those fees related to
monitoring the Defendants' compliance with the consent decree, for
Sept. 10, 2013 to Aug. 31, 2016 (first fees motion). The court
granted the motion on Nov. 15, 2017, concluding the Plaintiffs were
the "prevailing party" under Section 1988.
The decree was extended in January 2019 for an additional term of
18 months, to expire around 24 July 2020.
The Plaintiffs in October 2019 filed another interim motion for
attorney's fees, for Sept. 1, 2016 to April 30, 2019 (second fees
motion). Another was filed in May 2020, for May 1, 2019 to March
31, 2020 (third fees motion).
On July 17, 2020, moved for a second additional term for the
decree, with its length to be decided by the court at a later date.
Approximately two months after the July 2020 conference, the court
entered two orders on Sept. 15, 2020: one denied the proposed
second additional term; the other granted, as modified, the second
and third fees motions.
Subsequent to the July 2020 conference, the Plaintiffs and the
County -- but not the city -- Defendants reached a settlement on
outstanding fees; on Oct. 14, 2020, the Plaintiffs moved to dismiss
those Defendants. Ultimately, the court did not consider it
necessary to dismiss the County Defendants.
On March 17, 2021, the Plaintiffs moved for additional attorney's
fees, to be paid by the city, for April 1, 2020 to Dec. 31, 2020
(fourth fees motion). The fourth fees motion was denied on April
12, 2021 by a two-sentence order.
On April 15, 2021, the Plaintiffs moved to amend that order,
seeking findings of fact and conclusions of law on which the fourth
fees motion was denied and otherwise continuing in general to
contest the denial of that motion. The court on Nov. 24, 2021
denied the motion to amend as moot, but in doing so, stated the
fourth fees motion was untimely because it the parties on clear
notice that any motion needed to be "timely filed before" the July
2020 conference.
The Plaintiffs filed a notice of appeal on Dec. 20, 2021, from
April 12, 2021 and Nov. 24, 2021 orders denying the fourth fees
motion. They claim the court violated the Federal Rules of Civil
Procedure and procedural due-process by denying their fourth fees
motion as untimely, without setting a deadline in a written order.
The city (the sole remaining Defendant) presents the following
response in claiming we lack jurisdiction. The Sept. 15, 2020
orders were the court's final judgment, disposing of all claims
against all parties. As a result, the Plaintiffs had 28 days under
Federal Rule of Civil Procedure 59(e) to move to amend the fee
award. Or, had they wished instead to appeal the orders, they had
30 days, under Federal Rule of Appellate Procedure 4(a). Because
they did neither, the district court lacked jurisdiction to rule on
the March 17, 2021 fourth fees motion and the subsequent motion to
amend; therefore, the Dec. 20, 2021 notice of appeal was untimely.
The Fifth Circuit concludes that the district court did not intend
for its September 2020 orders to be a final judgment. As a result,
it has jurisdiction over this appeal. The 30-day period to appeal
did not begin to run until Nov. 24, 2021, when the court entered
its order denying the timely April 15, 2021 motion to amend the
April 12 order denying the fourth fees motion. The notice of appeal
was timely filed Dec. 20, 2021. Needless to say, the Plaintiffs'
timely filed motion to amend tolled the time to appeal the April
12, 2021 order denying the fourth fees motion.
However, the Fifth Circuit concludes that the district court erred
by denying as untimely the last of four interim fees motions. It
finds that the court had not entered its final judgment before the
Plaintiffs filed their fourth fees motion. The district court's
decision to convene an ex parte hearing was plainly unauthorized
because Rule 23 requires that when a judge constructs a process for
setting fees, the process must contain at least the procedural
minima of due process.
Likewise, the district court's procedures in this instance were
"flawed." Particularly troubling, as discussed supra, the consent
decree was not set to expire until after the July 2020 conference,
with a motion to extend it pending. It would be illogical to
construe the court's April 2020 telephonic conference instructions
as requiring plaintiffs to somehow estimate fees they had yet to
incur.
Because the Fifth Circuit vacates on this basis, it need not
address the Plaintiffs' due-process issue.
Finally, the city contends, for the first time on appeal, that the
Plaintiffs' request for additional fees is barred by issue
preclusion because they could have made the request with reasonable
diligence before the July 2020 conference.
Even if this contention is not waived, the Fifth Circuit finds it
is unfounded, as none of the requirements for issue preclusion are
satisfied. It says the Plaintiffs' fourth fees motion does not
concern an issue from a "prior action"; and fees for the period
covered by that motion were not previously adjudicated, actually
litigated, or necessary to decide the September 2020 orders,
concerning, inter alia, the second and third fees motions.
For these foregoing reasons, the Fifth Circuit vacates the April
12, 2021 and Nov. 24, 2021 orders; and remands for further
proceedings consistent with its Opinion.
A full-text copy of the Court's Feb. 15, 2023 Order is available at
https://tinyurl.com/2s3jf24w from Leagle.com.
TOMPKINS COMMUNITY: Uniform Pretrial Scheduling Order Entered
-------------------------------------------------------------
In the class action lawsuit captioned as Stacy Mock v. Tompkins
Community Bank, Case No. 3:22-cv-00995-BKS-ML (N.D.N.Y.), the Hon.
Judge Miroslav Lovric entered a uniform pretrial scheduling order
that:
(1) The deadlines set in this scheduling order supersede the
deadlines set forth in Fed. R. Civ. P.26(a)(3) and are
firm and will not be extended, even by stipulation of the
parties, absent good cause.
(2) venue motions are to be filed within 60 days of the date
of this Order following the procedures set forth in Local
Rule 7.1 (a)(2) and are to be made returnable before the
assigned Magistrate Judge.
(3) Jurisdiction motions are to be filed within 60 days of
the date of this Order following the procedures set forth
in Local Rule 7.1 (a)(1) (unless a party who is not an
attorney is appearing pro se, in which case L.R. 7.1 (b)
(2) should be followed) and are to be made returnable
before Judge Sannes.
(4) Joinder of Parties: Any motion to join any person as a
party to this action shall be made on or before April 20,
2023.
(5) Amendment of pleadings: Any motion to amend any pleading
in this action shall be made on or before April 20, 2023.
(6) Status report: The parties are directed to file a status
report on or before May 1, 2023.
(7) Discovery:
-- Rule 26(a)(1) Mandatory Disclosures are to be
exchanged by February 14, 2023.
-- Initial Written Discovery Demands must be served by
March 22, 2023.
-- All discovery in this matter is to be completed on or
before December 8, 2023.
-- Service of discovery requests must be made a
sufficient number of days before this deadline to
allow responses to be served before the cut-off.
A copy of the Court's order dated Feb. 21, 2023 is available from
PacerMonitor.com at https://bit.ly/3EOza8k at no extra charge.[CC]
TOPGOLF PAYROLL: Benyamin Wage-and-Hour Suit Removed to E.D. Cal.
-----------------------------------------------------------------
The case styled BOB B. BENYAMIN, individually and on behalf of all
others similarly situated, Plaintiffs v. TOPGOLF PAYROLL SERVICES,
LLC; TOPGOLF INTERNATIONAL, INC.; TOPGOLF USA ROSEVILLE, LLC; and
DOES 1 through 20, inclusive, Defendants, Case No. S-CV-0049735,
was removed from the Superior Court of California for the County of
Placer to the United States District Court for the Eastern District
of California on Feb. 17, 2023.
The Clerk of Court for the Eastern District of California assigned
Case No. 2:23-cv-00303-JAM-DB to the proceeding.
In the complaint, Plaintiff alleges, on behalf of himself and all
others similarly situated, nine total causes of action, eight of
which are for various violations of the California Labor Code and
one of which is for "Unfair Competition" under the California
Business & Professions Code.
TOPGOLF PAYROLL SERVICES, LLC operates 30 golf-related
entertainment facilities in the United States.[BN]
The Defendants are represented by:
Michael J. Nader, Esq.
Alexandra M. Asterlin, Esq.
OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C.
500 Capitol Mall, Suite 2500
Sacramento, CA 95814
Telephone: (916) 840-3150
Facsimile: (916) 840-3159
E-mail: michael.nader@ogletree.com
alexandra.asterlin@ogletree.com
TORRANCE MEMORIAL: Doe Privacy Suit Removed to C.D. Cal.
--------------------------------------------------------
The case styled JANE DOE, individually and on behalf of others
similarly situated, Plaintiff v. TORRANCE MEMORIAL MEDICAL CENTER,
Defendant, Case No. 23STCV00395, was removed from the Superior
Court of the State of California for the County of Los Angeles to
the United States District Court for the Central District of
California on Feb. 17, 2023.
The Clerk of Court for the Central District of California assigned
Case No. 2:23-cv-01237-RGK-MAR to the proceeding.
The Plaintiff's complaint purports to challenge Torrance's routine
on-line practices as various invasions of privacy, including
alleged violations of the California Invasion of Privacy Act, the
Confidentiality of Medical Information Act, California's
Constitutional right to privacy, the Comprehensive Computer Data
Access and Fraud Act, breach of implied-in-fact contract,
quasi-contract/restitution/unjust enrichment, California's Unfair
Competition Law and Cal. Civil Code.
Torrance Memorial Medical Center is a private hospital located in
Torrance, California.[BN]
The Defendant is represented by:
Teresa C. Chow, Esq.
Alexander Vitruk, Esq.
BAKER & HOSTETLER LLP
11601 Wilshire Boulevard, Suite 1400
Los Angeles, CA 90025-0509
Telephone: (310) 820-8800
Facsimile: (310) 820-8859
E-mail: tchow@bakerlaw.com
avitruk@bakerlaw.com
TRS RECOVERY SERVICES: Ocampo Sues Over FDCPA Violation
-------------------------------------------------------
Evelin Ocampo, individually and on behalf of all others similarly
situated v. TRS RECOVERY SERVICES, INC., Case No. 603150/2023 (N.Y.
Sup. Ct., Nassau Cty., Feb. 23, 2023), is brought under the Fair
Debt Collection Practices Act ("FDCPA" or "Act") as a result of the
Defendant's use of abusive, deceptive, and unfair debt collection
practices.
Some time prior to December 26, 2022, Plaintiff allegedly incurred
an obligation to non-party original creditor Draftkings. The
obligation arose out of a transaction involving a debt to
Draftkings in which money, property, insurance or services, that
are the subject of the transaction(s), were incurred primarily for
personal, family, or household purposes. The alleged Draftkings
obligation is a "debt." Draftkings is a "creditor." Draftkings
hired the Defendant to collect the alleged debt.
On December 26, 2022, Defendant sent the Plaintiff two initial
collection letters (the "First Letters") regarding the alleged debt
owed. However, the First Letters set forth conflicting amounts due,
despite being issued on the same day referencing the same account
number. Specifically, the First Letters quote the amount due as
$750.00 and $250.00, without explanation concerning the $500.00
discrepancy on the same account. Thus, Defendant quotes the same
debt twice, at least one quote of which is inaccurate by $500.00.
Moreover, on January 23, 2023, Defendant issued another letter to
the Plaintiff ("Second Notice") advising that the subject debt is
now owned by TeleCheck (First Letters and Second Notice
collectively, the "Letters"). The Second Notice exponentially
complicates the already contradictory information provided in the
First Letters. Specifically, the Second Notice was issued during
the Plaintiff's dispute period as provided in the First Letters.
Thus, the Second Notice overshadowed the Plaintiff's rights to
dispute the debt. For the same reason, the Second Notice included
an element of deception instead of clarity. As a result of the
Letters, Plaintiff was unable to determine precisely what amount
was due and/or her dispute period, which the FDCPA determined was
necessary to have a fully informed consumer, says the complaint.
The Plaintiff is a resident of the State of New York, County of
Nassau.
The Defendant is a "debt collector."[BN]
The Plaintiff is represented by:
Robert Yusko, Esq.
STEIN SAKS, PLLC
One University Plaza, Suite 620
Hackensack, NJ 07601
Phone: (201) 282-6500
Email: ryusko@steinsakslegal.com
TRUMP CORP: Plaintiffs Must File Class Cert Bid by March 10
-----------------------------------------------------------
In the class action lawsuit captioned as Catherine McKoy et al. v.
The Trump Corporation, et al, Case No. 1:18-cv-09936-LGS-SLC
(S.D.N.Y.), the Hon. Judge Lorna G. Schofield entered an order
permitting modest extensions to the schedule for briefing
Plaintiffs’ anticipated motion for class certification, with no
changes to the summary judgment or trial schedule:
-- The Plaintiffs shall file the motion by March 10, 2023.
-- The Defendants shall file any memorandum of law in
opposition by April 7, 2023.
-- The Plaintiffs shall file any reply by April 21, 2023.
-- The parties' pre-motion letters regarding any motion for
February 17, 2023 summary judgment shall be filed by April
21, 2023.
The Trump Organization is a group of about 500 business entities of
which Donald Trump is the sole or principal owner. Around 250 of
these entities use the Trump name.
A copy of the Court's order dated Feb. 21, 2023 is available from
PacerMonitor.com at https://bit.ly/3ENZM9g at no extra charge.[CC]
The Plaintiffs are represented by:
Roberta A. Kaplan, Esq.
John C. Quinn, Esq.
Maximillian Feldman, Esq.
KAPLAN HECKER & FINK LLP
350 Fifth Avenue, 63rd Floor
New York, NY 10118
Telephone: (212) 763-0883
Facsimile: (212) 564-0883
E-mail: rkaplan@kaplanhecker.com
jquinn@kaplanhecker.com
mfeldman@kaplanhecker.com
- and -
Andrew G. Celli, Jr., Esq.
Matthew D. Brinckerhoff, Esq.
O. Andrew F. Wilson, Esq.
David Berman, Esq.
Nick Bourland, Esq.
EMERY CELLI BRINCKERHOFF ABADY WARD &
MAAZEL LLP
600 Fifth Avenue at Rockefeller Center
New York, NY 10020
Telephone: (212) 763-5000
E-maikl: acelli@ecbawm.com
mbrinckerhoff@ecbawm.com
awilson@ecbawm.com
dberman@ecbawm.com
nbourland@ecbawm.com
The Defendants are represented by:
Peter T. Shapiro, Esq.
LEWIS BRISBOIS BISGAARD
& SMITH LLP
77 Water Street, Suite 2100
New York, NY 10005
E-mail: peter.shapiro@lewisbrisbois.com
- and -
Clifford S. Robert, Esq.
Michael Farina, Esq.
ROBERT & ROBERT PLLC
526 RXR Plaza
Uniondale, New York 11556
Telephone: (516) 832-7000
E-mail: crobert@robertlaw.com
mfarina@robertlaw.com
- and -
Alina Habba, Esq.
HABBA MADAIO & ASSOCIATES LLP
1430 U.S. Highway 206, Suite 240
Bedminster, NJ 07921
Telephone: (909) 869-1188
E-mail: ahabba@habbalaw.com
UCOR LLC: Seeks More Time to File Class Cert. Response in Speer
---------------------------------------------------------------
In the class action lawsuit captioned as CARLTON SPEER, MALENA
DAVIS, And ZACHARIAH DUNCAN, On their own behalf and on behalf of
All others similarly situated, V. UCOR LLC, Case No.
3:22-cv-00426-TRM-JEM (E.D. Tenn.), UCOR LLC moves the Court for
entry of an order extending the deadline for UCOR to file its
response to the Plaintiffs' motion for class certification, up to
and including February 27, 2023.
UCOR previously filed a motion to stay briefing on the Plaintiffs'
motion for class certification pending resolution of UCOR's Partial
Motion to Dismiss.
On February 13, 2023, this Court granted UCOR's Partial Motion to
Dismiss and denied UCOR's Motion to Stay Briefing as moot, but
stated UCOR may file a Motion for Extension of Time to respond to
the Motion for Class Certification.
UCOR is an environmental cleanup contractor providing support to
the Department of Energy Oak Ridge Office of Environmental
Management.
A copy of the Court's order dated Feb. 13, 2023 is available from
PacerMonitor.com at https://bit.ly/3kwD92m at no extra charge.[CC]
The Defendant is represented by:
William S. Rutchow, Esq.
Darius Walker, Jr., Esq.
OGLETREE, DEAKINS, NASH,
SMOAK & STEWART, P.C.
SunTrust Plaza
401 Commerce Street, Suite 1200
Nashville, TN 37219-2446
Telephone: (615) 254-1900
Facsimile: (615) 254-1908
E-mail: luci.nelson@ogletree.com
UDEMY INC: Parties in Williams Suit Negotiate Settlement Deal
-------------------------------------------------------------
Udemy Inc. disclosed in its Form 10-K Report for the fiscal period
ending December 31, 2022 filed with the Securities and Exchange
Commission on February 27, 2023, that the parties involved in the
Williams class suit entered a definitive settlement agreement for
an immaterial amount.
On August 23, 2021, a putative class action complaint captioned
Williams v. Udemy, Inc., Case No. 3:21-CV-06489, was filed against
us in the U.S. District Court for the Northern District of
California alleging violations of California's unfair competition
and false advertising statutes as well as the California Consumer
Legal Remedies Act in connection with our pricing practices.
The complaint sought injunctive relief, unspecified damages,
restitution and disgorgement of profits.
On December 13, 2022, the parties entered into a definitive
settlement agreement for an immaterial amount.
Udemy is a two-sided marketplace where instructors develop content
to meet learner demand where courses can be accessed through
direct-to-consumer platforms.
UGO LOGISTICS: Encarnacion Sues Over Unpaid Overtime Wages
----------------------------------------------------------
Davyn Encarnacion, an individual; Ricquan Jones, an individual; and
on behalf of all others similarly situated v. UGO LOGISTICS, LLC, a
Massachusetts Limited Liability Company; HENRY EMELE, an
individual; KARA EMELE, an individual; and DOES 1-10, inclusive,
Case No. 1:23-cv-10438 (D. Mass., Feb. 23, 2023), is brought under
the Fair Labor Standards Act ("FLSA") seeking payment of overtime
premiums and other damages due to the Plaintiffs.
The Plaintiffs were promised a regular hourly rate of $17.50
("Straight Time Pay") while working as package delivery drivers for
Defendants. Importantly, the Plaintiffs were to make one and a half
times their regular hourly rate, or $26.25, ("Overtime Pay") as
their overtime hourly rate. On one or more occasions, the
Plaintiffs complained to Defendants and supervisors working for
them, that they were not getting paid any overtime wages. During
the relevant time period, the Defendants followed a policy and
practice of refusing to pay the Plaintiffs for the overtime work
they performed for the Defendants as interstate package delivery
drivers. The Defendants exploited these workers, all or most of
whom had little knowledge of their rights. Defendants willfully
failed to pay the Plaintiffs premium wages for overtime work, says
the complaint.
The Plaintiffs worked as package delivery drivers for the
Defendants.
UGO Logistics, LLC is a Massachusetts limited liability
corporation, with its primary headquarters in East Taunton,
Massachusetts.[BN]
The Plaintiff is represented by:
Chip Muller, Esq.
MULLER LAW, LLC
47 Wood Avenue
Barrington, RI 02806
Phone: (401) 256-5171
Email: chip@mullerlaw.com
- and -
John P. Kristensen, Esq.
CARPENTER & ZUCKERMAN
8827 W. Olympic Blvd.,
Beverly Hills, CA 90211
Phone: 310-273-1230
Email: kristensen@cz.law
UMG RECORDINGS: Waite Partial Summary Judgment Bid Nixed
---------------------------------------------------------
In the class action lawsuit captioned as JOHN WAITE, etc. , et al.
, v. UMG RECORDINGS, INC. , etc. , at al., Case No.
1:19-cv-01091-LAK (S.D.N.Y.), the Hon. Judge Lewis A. Kaplan
entered an order denying without prejudice the Plaintiffs' motion
for partial summary judgment on defendants' work for hire defense,
to renewal following expiration of the stay.
Any such renewal shall be by notice filed no later than 21 days
after said expiration and shall be on the existing papers.
UMG Recordings provides musical services. The Company offers
records, tapes, and other musical services.
A copy of the Court's order dated Feb. 13, 2023 is available from
PacerMonitor.com at https://bit.ly/3SDMoKW at no extra charge.[CC]
UNITED STATES: Neville, et al., Seek Class Action Certification
---------------------------------------------------------------
In the class action lawsuit captioned as TINA NEVILLE and RACHEL E.
BENNETT, on behalf of themselves and others similarly situated, v.
CHARLOTTE A. BURROWS, Case No. 1:22-cv-03246-RC (D.D.C.), the
Plaintiffs submit a memorandum in support of the Plaintiffs' motion
for class action Certification.
The Plaintiffs are former dual-status employees of the Department
of Defense's ("DoD") military agencies of the United States. They
were discriminated against in their civilian employment by their
respective civilian employer. They are owed relief from their
employing agencies through judgments issued by the Equal Employment
Opportunity Commission ("EEOC").
Defendant, Charlotte A. Burrows, in her capacity of Chair for the
EEOC, deprived and continues to deprive relief by failing to refer
enforcement actions for the DoD's compliance failures to the
Offices of the Attorney General ("AG") and Special Counsel ("OSC").
The Plaintiffs seek certification of their Class Action Complaint.
They seek to be designated as representatives of the class defined
as dual-status employees, who worked as technicians by both serving
in the United States military in the National Guard and working for
military agencies in a civilian role, who endured a form of
recognized and prohibited discrimination, who sought relief through
the EEOC, who were granted judgment through the EEOC process, and
who were subsequently denied relief by the EEOC's inaction when the
EEOC failed to refer their cases to the Department of Justice
("DoJ") when the EEOC could not enforce its own decisions.
The Plaintiff Tina Neville was a dual-status technician in the
Texas Air National Guard ("TANG"). Ms. Neville served both as a
member of the Guard and as a civilian employee.
Charlotte A. Burrows is the Chair of the Equal Employment
Opportunity Commission.
A copy of the Plaintiffs' motion dated Feb. 13, 2023 is available
from PacerMonitor.com at https://bit.ly/3mdxnTR at no extra
charge.[CC]
The Plaintiffs are represented by:
Michael D.J. Eisenberg, Esq.
LAW OFFICE OF MICHAEL D.J. EISENBERG
700 12th Street NW, Ste. 700
Washington, DC 20005
Telephone: (202) 556-6371
E-mail: michael@eisenberg-lawoffice.com
UNITY SOFTWARE: Assad Class Suit Withdrawn
-------------------------------------------
Unity Software Inc. disclosed in its Form 10-K Report for the
fiscal period ending December 31, 2022 filed with the Securities
and Exchange Commission on February 27, 2023, that the complaint
captioned Assad v. Botha et al, Case No. 2022-0691 against the
Company was withdrawn on September 21, 2022.
On August 8, 2022, a putative class action complaint, captioned
Assad v. Botha et al, Case No. 2022-0691, was filed in the Court of
Chancery against the Company and its board of directors. The
complaint alleged that the directors breached their fiduciary
duties by failing to disclose all material information necessary to
allow stockholders to make a fully informed decision on whether to
approve the issuance of new shares as a part of the Company's
preliminary Form S-4 filed in connection with the Company's merger
with ironSource.
The plaintiff was a purported stockholder and sought to represent a
class of stockholders voting in connection with the stock issuance.
The complaint sought additional disclosure and an award of
attorneys' fees, among other remedies.
On September 21, 2022, the complaint was withdrawn.
Unity creates and operates an interactive real-time 3D content
platform. The Company's platform provides software solutions to
create, run, and monetize interactive, real-time 2D and 3D content
for mobile phones, tablets, PCs, consoles, and augmented and
virtual reality devices. One of the tools on the Company's product
platform is the Audience Pinpointer, a user acquisition service
which uses real-time user valuation at the time of an ad
request.[BN]
UNITY SOFTWARE: Continues to Defend Das Class Suit in California
----------------------------------------------------------------
Unity Software Inc. disclosed in its Form 10-K Report for the
fiscal period ending December 31, 2022 filed with the Securities
and Exchange Commission on February 27, 2023, that the Company
continues to defend itself from the Das class suit in the U.S.
District Court for the Northern District of California.
On July 6, 2022, a putative class action complaint, captioned Das
v. Unity Software, Inc., et al., Case 3:22-cv-03962 (N.D. Cal.),
was filed against the Company and its Chief Executive Officer,
current Chief Financial Officer, and former Chief Financial
Officer, in the U.S. District Court for the Northern District of
California (the "Das Class Action"). The complaint, which asserts
claims under Sections 10(b) and 20(a) of the Exchange Act, alleges
that the Company and its executives made false or misleading
statements and/or failed to disclose issues with the Company's
product platform and the likely impact of those issues on the
Company's fiscal 2022 guidance.
The plaintiff seeks to represent a class of all persons and
entities (other than the defendants) who acquired Unity securities
between March 5, 2021 and May 10, 2022, and requests unspecified
damages, pre- and post-judgment interest, and an award of
attorneys' fees and costs.
The Company believes this lawsuit is without merit and intends to
vigorously defend the case.
Unity creates and operates an interactive real-time 3D content
platform. The Company's platform provides software solutions to
create, run, and monetize interactive, real-time 2D and 3D content
for mobile phones, tablets, PCs, consoles, and augmented and
virtual reality devices. One of the tools on the Company's product
platform is the Audience Pinpointer, a user acquisition service
which uses real-time user valuation at the time of an ad
request.[BN]
US STEEL: Faces Shareholder Suit in Various Courts
--------------------------------------------------
United States Steel Corporation disclosed in its Form 10-K report
for the fiscal year ended December 31, 2022, filed with the
Securities and Exchange Commission on February 3, 2023, that on
October 2, 2017, an Amended Shareholder Class Action Complaint was
filed in the United States District Court for the Western District
of Pennsylvania consolidating previously-filed actions. Separately,
five related shareholder derivative lawsuits were filed in state
and federal courts in Pittsburgh, Pennsylvania, and the Delaware
Court of Chancery.
The underlying consolidated class action lawsuit alleges that U.S.
Steel, certain current and former officers, an upper-level manager
of the company and the financial underwriters who participated in
the August 2016 secondary public offering of the company's common
stock violated federal securities laws in making false statements
and/or failing to discover and disclose material information
regarding the financial condition of the company.
The lawsuit claims that this conduct caused a prospective class of
plaintiffs to sustain damages during the period from January 27,
2016 to April 25, 2017 as a result of the prospective class
purchasing the company's common stock at artificially inflated
prices and/or suffering losses when the price of the common stock
dropped.
The derivative lawsuits generally make the same allegations against
the same officers and also allege that certain current and former
members of the Board of Directors failed to exercise appropriate
control and oversight over the company and were unjustly
compensated. The plaintiffs seek to recover losses that were
allegedly sustained. The Class Action Defendants moved to dismiss
plaintiffs' claims.
In September 29, 2018 the court ruled on those motions granting
them in part and denying them in part. On March 18, 2019, the
plaintiffs withdrew the claims against the Class Action Defendants
related to the 2016 secondary offering. As a result, the
underwriters are no longer parties to the case. On December 31,
2019, the court granted the Plaintiffs' motion to certify the
proceeding as a class action.
The company's appeal of that decision was denied. Discovery
followed and concluded. On May 20, 2022, the Plaintiffs and Class
Action Defendants agreed to settle the Shareholder Class Action in
the amount of $40 million to be fully funded by the Company's
insurers. Court approval of the class action settlement is
currently pending with a Final Approval Hearing set for March 20,
2023. The related derivative cases, which were previously stayed,
are now proceeding.
United States Steel Corporation is a producer of steel based in
Pennsylvania.
VERTIV HOLDINGS: Continues to Defend Securities Suit in New York
----------------------------------------------------------------
Vertiv Holdings Co. disclosed in its Form 10-K Report for the
fiscal period ending December 31, 2022 filed with the Securities
and Exchange Commission on February 27, 2023, that the Company
continues to defend itself from a securities class suit in the
Southern District of New York.
On May 3, 2022, a putative securities class action, In re Vertiv
Holdings Co Securities Litigation, 22-cv-3572, was filed against
Vertiv, certain of its officers and directors, and other defendants
in the Southern District of New York. Plaintiffs filed an amended
complaint on September 16, 2022.
The amended complaint alleges that certain of its public statements
were materially false and/or misleading with respect to
inflationary and supply chain pressures and pricing issues, and
asserts claims under Sections 10(b) and 20(a) of the Securities
Exchange Act of 1934, as amended, and Sections 11, 12(a)(2), and 15
of the Securities Act of 1933, as amended.
These claims are asserted on behalf of a putative class of all
persons and entities that (i) purchased Vertiv securities between
February 24, 2021 and February 22, 2022; and/or (ii) purchased
Vertiv securities in or traceable to the November 4, 2021 secondary
public offering by a selling stockholder pursuant to a resale
registration statement.
While the Company believes that it has meritorious defenses against
the plaintiffs' claims, it is unable at this time to predict the
outcome of this dispute or the amount of any cost associated with
its resolution.
Vertiv Holdings Co. is into design, manufacturing, and servicing
critical digital infrastructure technology based in Ohio.
VIMEO INC: Settlement in Acaley Suit Gets Initial Nod
-----------------------------------------------------
Vimeo Inc. disclosed in its Form 10-K Report for the fiscal period
ending December 31, 2022 filed with the Securities and Exchange
Commission on February 27, 2023, that the U.S. District Court for
the Northern District of Illinois grants preliminary settlement
approval of the Acaley class suit on January 20, 2023.
On September 9, 2019, Bradley Acaley filed, on behalf of himself
and other similarly situated individuals, a putative class action
complaint against Vimeo in the Circuit Court of Cook County,
Illinois. See Bradley Acaley v. Vimeo, Inc., Acaley v. Vimeo.com,
Inc., Case No. 2019 CH10873 (Ill. Cir. Ct.). Vimeo thereafter
removed the case to the U.S. District Court for the Northern
District of Illinois, where it is now pending. See Bradley Acaley
v. Vimeo, Inc., No. 19 Civ. 7164 (N.D. Ill.). In his complaint,
plaintiff asserts that Vimeo’s Magisto mobile application
collected facial biometric information in a manner that violated
his rights under the Illinois Biometric Information Privacy Act
("BIPA"), and he seeks, among other things, injunctive relief and
monetary damages.
On May 29, 2022, the parties entered into a settlement agreement
that, subject to court approval, will result in certain payments to
class members in exchange for releases to Vimeo.
On June 6, 2022, the case was, pursuant to the parties’
stipulation, remanded from federal court back to the Circuit Court
of Cook County, Illinois.
On July 22, 2022, plaintiffs' counsel filed a motion for
preliminary approval of the settlement agreement, and the court
issued an order granting preliminary approval of the settlement on
January 20, 2023.
Vimeo Inc. is an American video hosting, sharing, and services
platform provider headquartered in New York City. Vimeo focuses on
the delivery of high-definition video across a range of devices.
Vimeo's business model is through software as a service.
VOLKSWAGEN GROUP: Madrigal Sues Over Warranty Coverage Denial
-------------------------------------------------------------
ALICIA MADRIGAL, individually and on behalf of all others similarly
situated, Plaintiff v. VOLKSWAGEN GROUP OF AMERICA, INC.; and DOES
1 through 10, Defendants, Case No. 2:23-cv-01465-PA-AS (C.D. Cal.,
Feb. 27, 2023) is class action arises out of the Defendants'
failure to accurately and comprehensively identify the vehicle
parts that should properly be classified as emissions warranty
parts and high-cost emissions warranty parts under California's
emission control system warranty requirements pursuant to
California Code of Regulations and covered under the Emissions
Warranty for 7-years and 70,000 miles.
According to the complaint, the Defendants denied coverage of the
engine pistons, and the piston rings affixed to the pistons
(collectively referred to as the "Piston" or "Pistons") installed
inside the internal combustion engines of the Class Vehicles, which
are considered "high-priced" emission part entitled to extended
warranty coverage under the California Emissions Warranty for
7-years and/or 70,000 miles.
The Plaintiff seeks reimbursement for all out of pocket costs paid
for repairs to the Piston that should have been covered under the
7-year 70,000-mile and California Emissions Warranty and payment of
all repairs which are needed and should have been covered under the
Defendants' California emissions warranty, for which the Defendants
have refused to provide coverage, namely the replacement of the
engine Pistons.
VOLKSWAGEN GROUP OF AMERICA, INC. markets and distributes
automobiles and auto parts. The Company, through its subsidiary,
rents, leases, and finances cars and vans. Volkswagen Group of
America serves customers in the United States. [BN]
The Plaintiff is represented by:
Robert L. Starr, Esq.
THE LAW OFFICE OF ROBERT L. STARR
23901 Calabasas Road, Suite 2072
Calabasas, CA 91302
Email: robert@starrlaw.com
- and -
Adam Rose, Esq.
Manny Starr, Esq.
FRONTIER LAW CENTER
23901 Calabasas Rd., #2074
Calabasas, CA 91302
Telephone: (818) 914-3433
Facsimile: (818) 914-3433
Email: adam@frontierlawcenter.com
manny@frontierlawcenter.com
- and -
Jordan L. Lurie, Esq.
Ari Y. Basser, Esq.
POMERANTZ LLP
1100 Glendon Avenue, 15th Floor
Los Angeles, CA 90024
Telephone: (310) 432-8492
Email: jllurie@pomlaw.com
abasser@pomlaw.com
WASHINGTON: Popkova Vaccine Mandate Suit Removed to W.D. Wash.
--------------------------------------------------------------
The case styled LARISA POPKOVA DSHS Employee #1, PAULA
BRANTNER-THOMAS DSHS Employee #2, KATHERINE ROWLETTE DSHS #3, KAREN
ROBBINS DSHS Employee #4, GARY C. BRIGHT DSHS Employee #5, on
behalf of themselves and all other similarly situated persons,
Plaintiffs v. Department of Social and Health Services (DSHS), DON
CLINSTMAN and JILMA MENESES, DOES 1-50 Defendants, Case No.
22-2-03184-34, was removed from the Superior Court of the State of
Washington for the County of Thurston to the United States District
Court for the Western District of Washington on Feb. 17, 2023.
The Clerk of Court for the Western District of Washington assigned
Case No. 3:23-cv-05130 to the proceeding.
The Plaintiff alleges claims under 42 U.S.C. Section 2000e and
Washington State law, Chapter 49.60 Revised Code of Washington,
relating to Washington's state employee vaccine requirement.[BN]
The Defendants are represented by:
Mary Crego Peterson, Esq.
Michael J. Ewart, Esq.
Rachael Clark, Esq.
HILLIS CLARK MARTIN & PETERSON P.S.
999 Third Avenue, Suite 4600
Seattle, WA 98104
Telephone: (206) 623-1745
Facsimile: (206) 623-7789
E-mail: mary.peterson@hcmp.com
jake.ewart@hcmp.com
rachael.clark@hcmp.com
WHITEFISH, MT: Court Enters Amended Scheduling Order in Beck
------------------------------------------------------------
In the class action lawsuit captioned as JEFF BECK, individually;
AMY WEINBERG, individually; ZAC WEINBERG, individually; ALTA VIEWS,
LLC; RIVERVIEW COMPANY, LLC; and on behalf of a class similarly
situated persons or entities, v. CITY OF WHITEFISH, a Montana
municipality, and DOES 1-50, Case No. 9:22-cv-00044-KLD (D. Mont.),
the Hon. Judge Kathleen L. DeSoto entered an order granting joint
stipulated motion to amend the scheduling order as follows
Response to Motion for Class Mar. 3, 2023
Certification:
Disclosure of Plaintiff’s Damages
Experts and Simultaneous Disclosure
of Liability Experts: May 25, 2023
Disclosure of Defendant’s and Third-
Party Defendants’ Damages Experts: Jun. 24, 2023
Discovery Deadline: Jul. 28, 2023
Motions Deadline (fully briefed): Sep. 8, 2023
Motions in Limine Deadline (fully briefed): Nov.6, 2023
A copy of the Court's order dated Feb. 13, 2023 is available from
PacerMonitor.com at https://bit.ly/3ZvFqdb at no extra charge.[CC]
WHOLE FOODS: Extension of Class Cert-Related Deadlines Sought
-------------------------------------------------------------
In the class action lawsuit captioned as MICHAEL MOLOCK, et al., v.
WHOLE FOODS MARKET, INC., Case No. 1:16-cv-02483-APM (D.D.C.), the
Plaintiffs asks the Court to enter an order granting a one-week
extension of all deadlines as follows:
Plaintiffs' Motion: March 3, 2023
Defendant's Response: May 1, 2023
Plaintiffs' Reply: May 22, 2023
Whole Foods owns and operates a chain of natural and organic foods
supermarket.
A copy of the Court's order dated Feb. 21, 2023 is available from
PacerMonitor.com at https://bit.ly/3Yfkypn at no extra charge.[CC]
The Plaintiffs are represented by:
Salvatore J. Zambri, Esq.
Christopher J. Regan, Esq.
Emily C. Lagan, Esq.
REGAN ZAMBRI LONG PLLC
1919 M Street, NW, Suite 350
Washington, DC 20036
Telephone: (202) 463-3030
Facsimile: (202) 463-0667
E-mail: szambri@reganfirm.com
cregan@reganfirm.com
elagan@reganfirm.com
WYNN RESORTS: Continues to Defend Ferris Securities Class Suit
--------------------------------------------------------------
Wynn Resorts Ltd. disclosed in its Form 10-K Report for the fiscal
period ending December 31, 2022 filed with the Securities and
Exchange Commission on February 27, 2023, that the Company
continues to defend the Ferris securities class suit in the United
States District Court, Southern District of New York.
On February 20, 2018, a putative securities class action was filed
against the Company and certain current and former officers of the
Company in the United States District Court, Southern District of
New York (which was subsequently transferred to the United States
District Court, District of Nevada) by John V. Ferris and Joann M.
Ferris on behalf of all persons who purchased the Company's common
stock between February 28, 2014 and January 25, 2018. The complaint
alleges, among other things, certain violations of federal
securities laws and seeks to recover unspecified damages as well as
attorneys' fees, costs and related expenses for the plaintiffs.
On April 15, 2019, the Company filed a motion to dismiss, which the
court granted on May 27, 2020, with leave to amend.
On July 1, 2020, the plaintiffs filed an amended complaint.
On August 14, 2020, the Company filed a motion to dismiss the
amended complaint.
On July 28, 2021, the court granted in part, and denied in part,
the Company's motion to dismiss the amended complaint, dismissing
certain of plaintiffs' claims, including all claims against Mr.
Billings and the individual directors, and allowing other claims to
proceed against the Company and several of the Company's former
executive officers, including Mr. Maddox, Stephen A. Wynn, Kimmarie
Sinatra, and Steven Cootey.
The defendants in this action intend to vigorously defend against
the claims pleaded against them and believe that the claims are
without merit.
Wynn Resorts Ltd. owned, built and operated notable Las Vegas
properties including the Golden Nugget, The Mirage, Treasure Island
and Bellagio before building the Wynn and Encore resorts on the Las
Vegas Strip. [GN]
YOUTUBE LLC: Schneider Suit Seeks to File Class Cert. Under Seal
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In the class action lawsuit captioned as MARIA SCHNEIDER, UNIGLOBE
ENTERTAINMENT, LLC, and AST PUBLISHING LTD., individually and on
behalf of all others similarly situated, v. YOUTUBE, LLC and GOOGLE
LLC, Case No. 3:20-cv-04423-JD (N.D. Cal.), the Plaintiffs submit
an interim administrative motion to file under seal the unredacted
versions of the Plaintiffs' Motion for Class Certification and
related declarations and exhibits, portions of which contain
information designated as Confidential or Highly Confidential by
the parties.
The Plaintiffs do not anticipate moving to seal any of the
documents Plaintiffs designated as Confidential or Highly
Confidential.
YouTube is a global online video sharing and social media
platform.
A copy of the Plaintiffs' motion dated Feb. 13, 2023 is available
from PacerMonitor.com at https://bit.ly/3Y5K9RA at no extra
charge.[CC]
The Plaintiffs are represented by:
George A. Zelcs, Esq.
Randall P. Ewing, Jr., Esq.
Ryan Z. Cortazar, Esq.
Stephen M. Tillery, Esq.
Steven M. Berezney, Esq.
Carol O'Keefe, Esq.
KOREIN TILLERY, LLC
205 North Michigan, Suite 1950
Chicago, IL 60601
Telephone: (312) 641-9750
Facsimile: (312) 641-9751
E-mail: gzelcs@koreintillery.com
rewing@koreintillery.com
rcortazar@koreintillery.com
stillery@koreintillery.com
sberezney@koreintillery.com
cokeefe@koreintillery.com
- and -
Joshua Irwin Schiller, Esq.
Philip C. Korologos, Esq.
Joanna Wright, Esq.
Jeffrey Waldron, Esq.
BOIES SCHILLER FLEXNER LLP
44 Montgomery St., 41st Floor
San Francisco, CA 94104
Telephone: (415) 293-6800
Facsimile: (415) 293-6899
E-mail: jischiller@bsfllp.com
pkorologos@bsfllp.com
jwright@bsfllp.com
jwaldron@bsfllp.com
YOUTUBE LLC: Schneider, et al., File Bid for Class Certification
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In the class action lawsuit captioned as MARIA SCHNEIDER, UNIGLOBE
ENTERTAINMENT, LLC, and AST PUBLISHING LTD., individually and on
behalf of all others similarly situated, v. YOUTUBE, LLC and GOOGLE
LLC, Case No. 3:20-cv-04423-JD (N.D. Cal.), the Plaintiffs ask the
Court to enter an order granting their motion for class
certification.
In the alternative, however, because no reasonable question exists
that Plaintiffs satisfy all Rule 23(a) factors and a
class action is the superior method, the Plaintiffs request
certification of a Rule 23(c)(4) issues class, resolving the common
issues identified in Section II. Ellis v. Costco Wholesale Corp.,
285 F.R.D. 492, 544 (N.D. Cal. 2012).
9 V.
The Plaintiffs have retained Angeion Group as claims administrator,
subject to Court approval. Angeion Group has successfully
administered class actions, including in this District.
YouTube is a global online video sharing and social media
platform.
A copy of the Plaintiffs' motion dated Feb. 13, 2023 is available
from PacerMonitor.com at https://bit.ly/3Z8h0GD at no extra
charge.[CC]
The Plaintiffs are represented by:
George A. Zelcs, Esq.
Randall P. Ewing, Jr., Esq.
Ryan Z. Cortazar, Esq.
Stephen M. Tillery, Esq.
Steven M. Berezney, Esq.
Carol O'Keefe, Esq.
KOREIN TILLERY, LLC
205 North Michigan, Suite 1950
Chicago, IL 60601
Telephone: (312) 641-9750
Facsimile: (312) 641-9751
E-mail: gzelcs@koreintillery.com
rewing@koreintillery.com
rcortazar@koreintillery.com
stillery@koreintillery.com
sberezney@koreintillery.com
cokeefe@koreintillery.com
- and -
Joshua Irwin Schiller, Esq.
Philip C. Korologos, Esq.
Joanna Wright, Esq.
Jeffrey Waldron, Esq.
BOIES SCHILLER FLEXNER LLP
44 Montgomery St., 41st Floor
San Francisco, CA 94104
Telephone: (415) 293-6800
Facsimile: (415) 293-6899
E-mail: jischiller@bsfllp.com
pkorologos@bsfllp.com
jwright@bsfllp.com
jwaldron@bsfllp.com
YUSEN LOGISTICS: Supplemental Bid for Class Certification Stricken
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In the class action lawsuit captioned as Michael Joseph Metcalf v.
Yusen Logistics (Americas), Inc., et al., Case No.
2:21-cv-05912-GW-PVC (C.D. Cal.), the Hon. Judge George H. Wu
entered an order:
1. granting the Defendant's Ex Parte Application to Strike
Plaintiff's Supplemental Motion for Class Certification;
and
2. striking both the supplemental brief and supplemental
declaration.
The Court said, "It doesn't appear that the Plaintiff sought to
amend the briefing schedule, or for advance permission to file a
supplemental brief or supplemental declaration. As a result, the
Court would grant the application and That being ordered, it may
nevertheless serve the interests of both parties to come to an
agreement on a further adjustment to the schedule, if they can do
that."
Yusen is a provider of International Freight Forwarding, Contract
Logistics, and Supply Chain Solution.
A copy of the Court's order dated Feb. 21, 2023 is available from
PacerMonitor.com at https://bit.ly/3YhyrDs at no extra charge.[CC]
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