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C L A S S A C T I O N R E P O R T E R
Monday, March 20, 2023, Vol. 25, No. 57
Headlines
49ERS ENTERPRISES: Donelson, Sampson and Finch Suits Consolidated
A.I. ROOT COMPANY: Cromitie Files ADA Suit in S.D. New York
AMERICAN FAMILY: Northern District of Ohio Dismisses Urbassik Suit
APPLE INC: Pepper, et al., Seek to Certify Class
APPPLE INC: Alomar Letter Bids to Appoint Counsel Tossed
ARS MOBILITY: Parties Must Submit Settlement Deal by March 29
BALLER INC: Rickey Suit Removed to S.D. California
BAYER CORPORATION: Loses Bid to Dismiss Corpuz Complaint
BEER BARREL: Fails to Pay Proper Wages, Coker Suit Alleges
BETTERHELP INC: Faces Doe Suit Over Alleged Illegal Wiretapping
BP EXPLORATION: Claims in Jackson Suit Dismissed With Prejudice
BP EXPLORATION: Court Dismisses Franks' Claims With Prejudice
BP EXPLORATION: Court Tosses Claims in Loftus Suit With Prejudice
BP EXPLORATION: Summary Judgment Bid Granted; Martin Suit Tossed
BUFFALO WILD: Chicago Man Sues Over Boneless Wings' False Ads
C.H. ROBINSON: Bids for Partial Summary Judgment Granted in Part
CALIFORNIA: Court Dismisses Gutierrez's Bid for Immediate Release
CALYXT INC: Keller Sues Over Breach of Fiduciary Duties
CAROLINE LIEBENBERG: General Pretrial Management Order Entered
CARRIER GLOBAL: Dismissal of Darnis Suit Under Appeal
CENGAGE LEARNING: Expert Testimony Excluded in Bernstein Suit
CENTENE MANAGEMENT: Seeks Leave to File Class Cert Sur-Reply
CEREBRAL INC: C.D. California Denies Bid to Remand Cullors Suit
CEREBRAL INC: Federman Sues Over Data Privacy Violations
CHARTER COMMUNICATIONS: Steinberg Suit Removed to S.D. California
CHERRY CREEK: McKnight Suit Remanded to District Court
CONAGRA BRANDS: Bohen Sues Over Deceptive Sustainability Labels
CONOPCO INC: Bid to Dismiss Candeleria's Class Claims Nixed
CORIZON HEALTH: Court Stays All Proceedings in Morrelli Suit
CORTEVA INC: Faces Bonin Suit Over Alleged Pesticides' Monopoly
CRST INTERNATIONAL: Court Issues Final Judgment in Markson Suit
DAXI SICHUAN: Bid for Attorney's Fees Granted in Part
DEL-AIR HEATING: Suit Seeks to Certify Class of ESOP Participants
DOWN UNDER: Fails to Pay Proper Wages, Bado Suit Alleges
EMBASSY HEALTHCARE: Fails to Pay Proper Wages, Barker Alleges
EPLUS INC: Kent Shareholder Suit Dismissed
EQUIFAX INFORMATION: Denial of Bid to Toss Arbitration Award Upheld
FAMILY SERVICE: Fails to Pay Overtime Wages, Canter Alleges
FCA US: $126K Award of Attorneys' Fees in Tomassini Suit Affirmed
FCA US: Bid to Dismiss Wilson Cass Action Tossed
FLETCHER BUILDING: Investors Suit Alleges Breaches of Disclosures
FORD MOTOR: Bid to Deny Class Certification Stricken in Rathmann
FORD MOTOR: O'Connor Can't Amend Complaint, N.D. Illinois Rules
FURNISHARE INC: Genao Sues Over Failure to Pay Weekly Wages
GATE GOURMET: $3.85-Mil. Settlement in Rahman Suit Has Final Nod
GOODER FOODS: Zarzuela Files ADA Suit in S.D. New York
GOURMET DELI: Martinez Files FLSA Suit in S.D. New York
HAIN CELESTIAL: Faces Suit Over Unsafe Baby Products
HIGHLIGHTS FOR CHILDREN: Lawal Files ADA Suit in S.D. New York
ILLINOIS: Court Narrows Claims in Daniels Suit
IMANI LOUNGE: Parties Must Follow Standard Briefing Order
INFOMART INC: Herring-Dancy FCRA Suit Removed to W.D. Missouri
ISABEL BLOOM: Cromitie Files ADA Suit in S.D. New York
JOHNSON & JOHNSON: Schippell Sues Over False Advertising
JUDGE JACK ZOUHARY: Leininger Seeks Class Cert Default Judgment
LANDMARK RECOVERY: Fails to Pay Proper Wages, Black Alleges
LASALLE MANAGEMENT: Barahona Sues Over Forced Labor Scheme
LGA RETAIL INC: Cromitie Files ADA Suit in S.D. New York
LOANDEPOT INC: Filing of Class Certification Bid Due July 21
MONDELEZ GLOBAL: Newman Sues Over Deceptive Marketing
MORGAN STANLEY: Court Allows Report to Be Filed Partly Sealed
NEW YORK, NY: Feeley Oral Argument Letter Improperly Filed
NEW YORK, NY: Police Officers Face Class Action Over Mask Mandates
O'REILLY AUTO: Vvanti Suit Seeks to Certify 4 Classes
OCWEN FINANCIAL: Bid for Class Decertification Junked
ONPOINT COMMUNITY: Granados' Bid for Class Cert. Due July 17
PACIFIC GRAIN: Class Certification Bid Hearing Reset to April 26
PHH CORP: Denial of Bid to Modify Pretrial Order in Munoz Reversed
PISA GROUP: Pennsylvania Court Certifies Class in Williams Suit
PREMIER NUTRITION: Faces Consumer Suit Over False Claims
PRO STAR: Filing of Class Certification Bid Due July 28
PUB GROUP: Fails to Pay Proper Wages, Alayamani Suit Alleges
RAYTHEON TECHNOLOGIES: Dismissal of Darnis Suit Under Appeal
RAYTHEON TECHNOLOGIES: Faces Shareholder Suit Over SEC Misreporting
REX VENTURE: Court Orders JP Morgan to Pay $2.8K in Nationwide Suit
RH: Rosen Encourages Investors to Inquire About Class Action Probe
ROMEO POWER: Castleberg, et al., File Class Certification Bid
SEA COST: Faces Class Action Suit Over Real Estate Commissions
SIMON'S AGENCY: Court Dismisses Chaga FDCPA Suit Without Prejudice
SQUARETRADE INC: $958K Class Settlement in Shuman Gets Final Nod
SUEZ WTS SERVICES: S.D. California Refuses to Remand Bulnes Suit
SYNGENTA AG: Post-Judgment Attys.' Fees Orders in Corn Suit Upheld
TAKEDA PHARMACEUTICALS: Loses Class Cert. Bid in Value Drug Suit
TAPESTRY INC: Brooks Must File Class Certification Bid by July 11
TERRAN ORBITAL: Lead Plaintiff Bids in Mullen Suit Due April 18
TWIST BIOSCIENCE: Faces Peters Shareholder Suit in CA Court
UHG I LLC: Wins Bid to Compel Arbitration; Court Tosses Ford Suit
UNITED STATES: Ali Sues Over Injuries From Military Forces' Strikes
UNITED STATES: S.O. May Proceed Anonymously in Chen v. Vilsack/USDA
USC: Plaintiffs Seeks to File Portions of Docs Under Seal
UTAH: Court Junks Sjodin Class Certification Bid
VERTEX ENERGY: Faces Suit Over 44% Drop in Share Price
WALMART INC: Hodges Recommended as Haro's Interim Class Counsel
WALMART INC: Parties Stipulate to Extend Class Cert Briefing
WORLD RUGBY: Player in Lawsuit Welcomes New Tackle Height Limit
WYNN RESORTS: Court Certifies Class in Ferris Securities Suit
XTO ENERGY: Brusamont Loses Bid for Leave to File Reply Brief
YANFENG US: Class Settlement in Dover Suit Gets Final Nod
ZOOM VIDEO: Objectors' Bids for Atty.'s Fees in Privacy Suit Denied
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49ERS ENTERPRISES: Donelson, Sampson and Finch Suits Consolidated
-----------------------------------------------------------------
Judge James Donato of the U.S. District Court for the Northern
District of California consolidates three cases in the lawsuit
styled IN RE SAN FRANCISCO 49ERS DATA BREACH LITIGATION, Case No.
3:22-cv-05138-JD (N.D. Cal.).
The Plaintiffs in three putative class actions have sued Defendant
49ers Enterprises, LLC, d/b/a The San Francisco 49ers, over a data
breach incident that occurred in February 2022 (Donelson v. 49ers
Enters., LLC, No. 3:22-cv-05138-JD; Sampson v. 49ers Enters., LLC,
No. 3:22-cv-09077-JD; Finch v. 49ers Enters., LLC, No.
3:23-cv-00109-JD.
The parties have advised the Court that a fourth putative class
action that may relate to the same data breach incident is pending
before another judge in this District, Brent v. Forty Niners
Football Co., LLC, No. 5:23-cv-00333-JSC, but they have not yet
filed a motion to relate.
The Plaintiffs state, and the record indicates, that these actions
involve common questions of law and fact, arise from the same
events, involve the same defendant, and assert overlapping claims
and putative classes.
Consequently, these cases are ordered to be consolidated into a
single action as follows (a) 3:22-cv-05138-JD, (b)
3:22-cv-09077-JD, and (c) 3:23-cv-00109-JD.
Pursuant to Federal Rule of Civil Procedure 42(a), these cases are
consolidated into Civil Action No. 22-5138 for all pretrial
proceedings before this Court. All filings and submissions from
here on will be captioned: "In re San Francisco 49ers Data Breach
Litigation" under the 3:22-cv-05138-JD case number.
All other underlying cases will be administratively closed by the
Clerk of Court.
If a related action is subsequently filed in or transferred to this
District, it will be consolidated into this action for all pretrial
purposes. This order will apply to every new related action,
without further order of the Court. A party that objects to
consolidation, or to any other provision of this order, may file an
application for relief within 14 days after an order relating cases
is filed.
Judge Donato notes that this order is entered without prejudice to
the rights of any party to apply for severance of any claim or
action, for good cause shown.
Pretrial consolidation does not mean that the actions will
necessarily be consolidated for trial. That issue will be decided
later in the case. It also does not have the effect of making any
entity a party in any action in which he, she, or it has not been
named, served, or added in accordance with the Federal Rules of
Civil Procedure.
The docket in Civil Action No. 22-5138 will constitute the master
docket, and the file in that action will be the master file for
every action in the consolidated action.
When a pleading applies to some, but not all, of the member
actions, the document must list the case number for each individual
action to which the document applies immediately under the master
caption. Any document not identified in that way will be presumed
to apply to all member cases.
The parties must promptly file a motion to relate pursuant to Civil
Local Rule 3-12 whenever a case that should be consolidated into
this action is filed in, or transferred to, this District. If the
Court determines that the case is related, the Clerk of the Court
is requested to: a. file a copy of this order in the separate file
for such action; b. serve on plaintiff's counsel in the case a copy
of this order; c. direct that this order be served upon defendants
in the new case; and d. make the appropriate entry in the master
docket.
If there are any disputes about whether a new action should be
related to this consolidated action, they must promptly be brought
to the Court's attention or any objection may be deemed waived.
The Plaintiffs are directed to file a consolidated complaint by
March 24, 2023.
The parties have advised the Court that they have reached a
settlement and are in the process of preparing a formal agreement.
The Plaintiffs have indicated that they will file a motion for
preliminary approval of a class settlement within 30 days of filing
their consolidated complaint.
At the parties' joint request, 49ers Enterprises is not required to
respond to the consolidated complaint pending the filing and
disposition of the motion for preliminary approval, and the case
management conferences in the consolidated cases are vacated
pending further order.
A full-text copy of the Court's Order dated Feb. 23, 2023, is
available at https://tinyurl.com/c6t6wd9c from Leagle.com.
A.I. ROOT COMPANY: Cromitie Files ADA Suit in S.D. New York
-----------------------------------------------------------
A class action lawsuit has been filed against The A.I. Root
Company. The case is styled as Seana Cromitie, on behalf of herself
and all others similarly situated v. The A.I. Root Company, Case
No. 1:23-cv-02074 (S.D.N.Y., March 10, 2023).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
The A.I. Root Company manufactures and distributes home decorating
products. The Company offers products such as dinner and scented
candles, pillar holders, wax warmers, candle rings, diffusers,
jars, and accessories.[BN]
The Plaintiff is represented by:
Mark Rozenberg, Esq.
MARCUS & ZELMAN LLC
One University Plaza, Ste. 620
Hackensack, NJ 07601
Phone: (201) 282-6500
Email: mrozenberg@steinsakslegal.com
AMERICAN FAMILY: Northern District of Ohio Dismisses Urbassik Suit
------------------------------------------------------------------
In the lawsuit titled JEREMY URBASSIK, Plaintiff v. AMERICAN FAMILY
MUTUAL INSURANCE CO., Defendant, Case No. 1:21-cv-01974 (N.D.
Ohio), Judge J. Philip Calabrese of the U.S. District Court for the
Northern District of Ohio, Eastern Division, grants the Defendant's
motion to dismiss the complaint in its entirety.
On behalf of himself and a putative class of those similarly
situated, Urbassik brings the action, alleging that the Defendant
failed to pay actual cash value as required under his
auto-insurance policy after an accident rendered his vehicle a
total loss. In his second amended class action complaint, the
Plaintiff sues for breach of contract and breach of the covenant of
good faith and fair dealing. Also, he seeks a declaratory judgment
that the Defendant's valuation process breaches the policy and
violates Ohio law.
Mr. Urbassik's 2006 Chrysler 300 suffered a total loss on June 26,
2017. He had auto insurance through American Family under an
agreement effective April 4, 2017, to Oct. 4, 2017. He submitted a
claim under the policy for the damage to his vehicle.
American Family determined that the vehicle was a total loss and
offered to pay Mr. Urbassik $6,853. To estimate the value of Mr.
Urbassik's vehicle, and consistent with Ohio law, American Family
used a third-party service called AudaExplore, which averages the
prices of comparable vehicles in his area. AudaExplore used a
sample of 32 comparable vehicles. American Family provided Mr.
Urbassik with a report from AudaExplore that included a sample of
five of these vehicles, their location and condition information,
and the "typical negotiation adjustment" AudaExplore imposed on the
comparable vehicle's list price. American Family applied a downward
adjustment of $614.17 to the market value of Mr. Urbassik's car to
reflect this average nine percent negotiation or "selling price"
adjustment.
The Plaintiff contends that this across-the-board selling-price
adjustment bears no relationship to actual prices determined in the
market.
AudaExplore adjusted the value of Mr. Urbassik's vehicle based on
its odometer reading and the condition of its carpets, headliner,
and paint. AudaExplore made upward adjustments to his vehicle based
on its mileage, carpet wear, and paint wear, and a downward
adjustment of $35 for its headliner wear. He alleges that the
$6,853 that American Family paid him undervalued his vehicle by at
least $614.17, which is the amount of the selling price adjustment.
He did not dispute the payment of $6,853 until he filed suit on
Oct. 19, 2021.
Under the policy, if the insured disputes American Family's initial
offer to settle a claim, he may demand an appraisal. Also, American
Family has the right to demand an appraisal. The policy provides
that, if either party demands an appraisal, each will hire an
appraiser at their own expense, and split the other costs of the
appraisal equally.
The Plaintiff alleges that the Defendant intentionally applies the
selling price adjustment to total loss vehicles and requires the
insured to pay for their own appraiser to deter insureds from
demanding an appraisal. Then, American Family recovers the
difference between the actual cash value before the adjustment and
the adjusted value. He alleges this process systematically
undervalues total-loss vehicles to reduce the amount the Defendant
ultimately pays out to insured individuals.
American Family's automotive policy provides collision and
comprehensive coverage for physical damage resulting in the total
loss of an insured's vehicle.
On Dec. 16, 2021, the Defendant moved to dismiss the Plaintiff's
claims or, alternatively, to compel appraisal under the policy.
After the Plaintiff amended, the Defendant renewed the motion on
Feb. 7, 2022.
In March 2022, the Plaintiff agreed to participate in the appraisal
process. He paid his appraiser $349. The Plaintiff's appraiser and
Defendant's appraiser found different actual cash values for his
vehicle. The Defendant's appraiser determined an actual cash value
of $5,974.22, and the Plaintiff's set it at $7,500.
The parties submitted the appraisal to a third-party umpire to
resolve the dispute as contemplated under the policy. The
Plaintiff's portion of the umpire's fee was $200. The umpire
determined that the actual cash value of the Plaintiff's vehicle
was $8,793.91. He does not allege that the Defendant failed to pay
him the difference between that amount and the original 2017
payment.
These allegations show that the Plaintiff paid $549 in costs for
the appraisal, which resulted in a determination that his vehicle
had an actual cash value of $8,793.91--which is $1,940.91 greater
than the $6,853 American Family initially offered, and $1,326.74
greater than the $7,467.17 value before application of the discount
(nine percent in the case of Mr. Urbassik) about which the
Plaintiff complains. Further, the umpire determined an actual cash
value $1,293.91 higher than the Plaintiff's appraiser.
On Aug. 30, 2023, the Plaintiff amended to include allegations
concerning the appraisal process. Then, the Defendant moved to
dismiss.
The Plaintiff filed suit alleging that Defendant American Family
breached the terms of its insurance policy by applying a downward
selling price adjustment of nine percent to its initial calculation
of the actual cash value of his vehicle (First Cause of Action) and
violated its implied duty of good faith and fair dealing by
exercising improper discretion and arbitrarily applying the selling
price adjustment (Second Cause of Action).
Also, the Plaintiff seeks a declaratory judgment that te
Defendant's actions breached the insurance contract and violated
Ohio law (Third Cause of Action). He asserts these claims
individually and on behalf of a putative class of other American
Family policyholders.
The Plaintiff's first cause of action alleges that Defendant
breached its insurance contract by paying him less than the actual
cash value of his vehicle in 2017.
Judge Calabrese notes that American Family has now paid Mr.
Urbassik the amount payable for his total loss vehicle under the
contract, as determined by the appraisal process. Therefore, the
selling price adjustment about which he complains no longer has any
bearing on the breach of contract claim or the amount the Defendant
owes under the policy for his total loss vehicle.
For these reasons, Judge Calabrese finds the Plaintiff has not pled
facts that state a claim for breach of the insurance contract
between him and American Family.
The Plaintiff argues that the Defendant was obligated to pay him
the actual cash value of his vehicle in 2017, but failed to do so
and owes prejudgment interest on the difference between the
allegedly deficient 2017 payment ($6,853.00) and the amount payable
as determined by the appraisal process in 2022 ($8,793.91). He
argues that this satisfies the third and fourth elements of his
breach of contract claim--breach by the Defendant and damages.
Again, Judge Calabrese says, the facts alleged, construed in the
Plaintiff's favor, fail to state a claim. The Plaintiff did not
invoke his right to an appraisal. Any delay in the determination of
the value of his vehicle under the policy results from his
resistance of an appraisal. In any event, because the Defendant
paid the Plaintiff the amount payable under the policy, there is no
longer a dispute, Judge Calabrese points out, among other things.
Because the Court dismisses the Plaintiff's underlying breach of
contract claim, the Court dismisses his claim for breach of the
covenant of good faith and fair dealing.
The Plaintiff seeks a declaration that the Defendant breached its
insurance contract and violated Ohio law by applying AudaExplore's
selling price adjustment to total loss claims. His claim for a
declaratory judgment is derivative of his claims for breach of
contract and breach of the covenant of good faith and fair
dealing.
Because the Plaintiff's first and second causes of action do not
survive a motion to dismiss, neither does his claim for a
declaratory judgment, Judge Calabrese holds.
For these reasons, the Court grants the Defendant's motion and
dismisses the Plaintiff's complaint.
A full-text copy of the Court's Opinion and Order dated Feb. 23,
2023, is available at https://tinyurl.com/mry335zh from
Leagle.com.
APPLE INC: Pepper, et al., Seek to Certify Class
------------------------------------------------
In the class action lawsuit re: Apple iPhone Antitrust Litigation,
Case No. 4:11-cv-06714-YGR (N.D. Cal.), the Plaintiffs Robert
Pepper, Stephen H. Schwartz, Edward W. Hayter, and Edward Lawrence
ask the Court to enter an order:
1. certifying the following class:
"All persons in the United States, exclusive of Apple and
its employees, agents and affiliates, and the Court and
its employees,who purchased one or more iOS applications
or applications licenses from the Defendant Apple Inc., or
who paid Apple for one ore more in-app purchases,
including but not limited to, any subscription purchase,
for use on an iOS Device at any time sincejuly 10, 2008."
2. appointing them as class representatives; and
3. appoiting Wolf Haldenstein Adler Freeman & Herz LLP and
Kellogg, Hansen, Todd, Figel & Frederick, P.L.L.C. as Co-
Class Counsel.
Apple is an American multinational technology company headquartered
in Cupertino, California.
A copy of the the Plaintiffs' motion dated March 1, 2023 is
available from PacerMonitor.com at https://bit.ly/3J9deGb at no
extra charge.[CC]
The Plaintiffs are represented by:
Betsy C. Manifold, Esq.
Rachele R. Byrd, Esq.
Mark C. Rifkin, Esq.
Matthew M. Guiney, Esq.
Thomas H. Burt, Esq.
WOLF HALDENSTEIN ADLER FREEMAN & HERZ LLP
720 B Street, Suite 1820
San Diego, CA 92101
Telephone: (619) 239-4599
Facsimile: (619) 234-4599
E-mail: manifold@whafh.com
byrd@whafh.com
- and -
David C. Frederick, Esq.
Aaron M. Panner, Esq.
Daniel V. Dorris, Esq.
KELLOGG, HANSEN, TODD, FIGEL &
FREDERICK, P.L.L.C.
1615 M Street, N.W., Suite 400
Washington, D.C. 20036
Telephone: (202) 326-7900
Facsimile: (202) 326-7999
E-mail: dfrederick@kellogghansen.com
apanner@kellogghansen.com
ddorris@kellogghansen.com
- and -
Michael Liskow, Esq.
CALCATERRA POLLACK LLP
1140 Avenue of the Americas, 9th Floor
New York, NY 10036-5803
Telephone: (212) 899-1761
Facsimile: (332) 206-2073
E-mail: mliskow@calcaterrapollack.com
APPPLE INC: Alomar Letter Bids to Appoint Counsel Tossed
---------------------------------------------------------
In the class action lawsuit captioned as Alomar v. Apple, et al.,
Case No. 9:22-cv-00848 (N.D.N.Y.), the Hon. Judge Therese Wiley
Dancks entered an order denying the Plaintiff's letter motions to
appoint counsel, to compel discovery, and for sanctions as follows.
-- The Plaintiff's letter motions for counsel are denied
without prejudice.
-- The Plaintiff has provided only one letter to document his
efforts to obtain counsel, although he indicates he has
tried "over a dozen".
-- The Plaintiff states that he cannot afford the retainer
requested by some counsel, and others "immediately lose
interest" because Albany County is a the Defendant, and he
intends to request class certification.
-- With due regard to the Plaintiff's pro se status, these are
not proper bases for appointing pro bono counsel. This
action is not overly complex, involving a Fourteenth
Amendment failure to protect claim against three the
Defendants, a Fourteenth Amendment deliberate indifference
claim against another the Defendant, and related state law
claims.
-- The Plaintiff has been able to effectively amend his
complaint. There is nothing in the record that demonstrates
that the Plaintiff is not able to effectively pursue this
action.
-- The Court has recently issued a discovery order. The
discovery order directs the Defendants to provide document
and other discovery to the Plaintiff within 60 days of the
order dated Feb. 7, 2023.
-- The Plaintiff's demands are premature and sanctions are not
warranted. If any further discovery is needed after the
Plaintiff receives and reviews the discovery served by the
The Defendant pursuant to the discovery order, the
Plaintiff may serve further demands.
The nature of suit states Prisoner Petitions -- Habeas Corpus --
Civil Rights.
Apple is an American multinational technology company headquartered
in Cupertino, California.[CC]
ARS MOBILITY: Parties Must Submit Settlement Deal by March 29
-------------------------------------------------------------
In the class action lawsuit captioned as ADRIAN MARTE, individually
and on behalf of others similarly situated, v. ARS MOBILITY LLC, et
al., Case No. 1:22-cv-10000-JMF (S.D.N.Y.), the Hon. Judge Jesse M.
Furman entered an order that:
-- On March 29, 2023, the parties must submit the settlement
agreement to the Court along with a joint letter explaining
the basis for the proposed settlement and why, if parties
contemplate dismissal under Rule 41, it should be approved
as fair and reasonable, with reference to the factors
discussed in Wolinsky.
-- The letter should also address, if applicable, any
incentive payments to the Plaintiff and any attorney's fee
award to the Plaintiff's counsel (with documentation to
support the latter, if appropriate).
The action was purportedly brought on behalf of all other similarly
situated employees and former employees. To the extent that the
proposed settlement applies to such a class and not solely to the
Plaintiff, on or before March 29, 2023, the parties must also file
a motion for class certification, preliminary approval of the
class-wide settlement, and approval of the Fair Labor Standards Act
(FLSA) settlement.
The motion papers shall include a copy of the parties' proposed
settlement as well as a proposed schedule for notice to the class
members, for class members to opt-out, for preliminary approval of
the settlement, and for a fairness hearing, as well as a proposal
for the manner in which class members will be notified. See
generally Fed. R. Civ. P. 23(e).
The parties shall also submit -- as a separate entry on the docket
and as a Word document submitted by email to Chambers at
Furman_NYSDChambers@nysd.uscourts.gov -- a proposed order
preliminarily approving the class-wide settlement, providing for
notice, and scheduling a settlement fairness hearing.
The parties are reminded that, now that they have reached a
settlement, they have the option to consent to proceed for all
purposes before the assigned Magistrate Judge (the appropriate form
for which is available at http://nysd.uscourts.gov/node/754),in
which case the assigned Magistrate Judge would decide whether to
approve the settlement. If all parties consent to proceed before
the assigned Magistrate Judge, they should file a fully executed
version of the consent form on the docket on or before the date set
forth above.
The parties in this action, brought pursuant to the FLSA, and New
York Labor Law have reached a settlement in principle. Under the
FLSA, an employer who violates the requirement that overtime wages
be paid must pay both the unpaid overtime compensation and an
additional equal amount as liquidated damages.
In the event of a settlement and dismissal under Rule 41 of the
Federal Rules of Civil Procedure, the settlement -- including any
proposed attorney's fee award -- must be scrutinized by the Court
to ensure that it is fair.
A copy of the Court's order dated March 1, 2023 is available from
PacerMonitor.com at https://bit.ly/3JAmSTX at no extra charge.[CC]
BALLER INC: Rickey Suit Removed to S.D. California
--------------------------------------------------
The case styled as Mary Rickey, individually and on behalf of all
others similarly situated v. Baller, Inc., Does 1-50, inclusive,
Case No. 37-02022-00044840-CU-BT-CTL was removed from the Superior
Court, San Diego County, California, to the U.S. District Court for
the Southern District of California on March 10, 2023.
The District Court Clerk assigned Case No. 3:23-cv-00446-CAB-MDD to
the proceeding.
The nature of suit is stated as Other Contract.
Baller Inc., doing business as BallerTV --
https://www.ballertv.com/ -- is a live broadcasting company. The
Company provides a massive library of game footage allows athletes,
coaches, and parents to review game tape to help improve their
game.[BN]
The Plaintiff is represented by:
James T. Hannink, Esq.
Zachariah Paul Dostart, Esq.
DOSTART HANNINK LLP
4225 Executive Square, Suite 600
La Jolla, CA 92037
Phone: (858) 623-4230
Fax: (858) 623-4299
Email: jhannink@sdlaw.com
zdostart@sdlaw.com
The Defendants are represented by:
Evelyn Crystal Lopez, Esq.
Joshua Briones, Esq.
MINTZ LEVIN COHN FERRIS GLOVSKY & POPEO P.C.
2049 Century Park East, Suite 300
Los Angeles, CA 90067
Phone: (310) 586-3200
Email: eclopez@mintz.com
jbriones@mintz.com
BAYER CORPORATION: Loses Bid to Dismiss Corpuz Complaint
---------------------------------------------------------
In the class action lawsuit captioned as EDISON CORPUZ,
individually and on behalf of all others similarly situated, v.
BAYER CORPORATION, Case No. 3:22-cv-01085-MMA-JLB (S.D. Cal.), the
Hon. Judge Michael M. Anello entered an order denying the
defendant's motion to dismiss.
Finally, Defendant cannot, as a matter of law, demonstrate that the
ingredient list on the back packaging of the relevant Products
defeats Plaintiff's claims.
The Ninth Circuit generally prohibits the use of ingredient lists
as a "shield for liability" in deceptive advertising cases.
However, where there has been "no deceptive act to be dispelled,"
ingredient lists may be considered in determining whether a
reasonable consumer would be misled by a product's packaging.
Therefore, although it is certainly possible that looking to the
ingredient list on the back of a multivitamin bottle sufficiently
explains (or disclaims) the word "natural" to a reasonable
consumer, this is an issue that should ultimately be decided by the
factfinder. The mere presence of such additional information is not
enough to dismiss Plaintiff's claims as a matter of law.
Accordingly, the Court finds that Plaintiff alleges with sufficient
plausibility that a reasonable consumer is likely to be deceived by
the term "natural," and denies the motion to dismiss on these
grounds.
On July 25, 2022, Edison Corpuz, on behalf of himself and all
others 21 situated, filed a putative class action complaint against
Defendant Bayer Corporation.
On October 5, 2022, the Defendant filed a motion to dismiss
Plaintiff's complaint in its entirety pursuant to Federal Rule of
Civil Procedure 12(b)(6).
THe Defendant sells the popular "One A Day" ("OAD") line of
multivitamins. The Plaintiff purchased Defendant's OAD Natural
Fruit Bites Multivitamin products (the "Products") in July 2019
from retail outlets in San Diego, California.
The Plaintiff alleges Defendant's "advertising and marketing
campaign is false, deceptive, and misleading" because it holds its
Products out as "natural" even though they "contain non-natural,
synthetic ingredients."
The Plaintiff bought Defendant's Products because he believed they
were natural based on the Products' packaging, which displays the
word "natural" on the front labels.
The Plaintiff brings this putative class action on behalf of
himself and other members of a proposed class defined as:
"all consumers within the State of California who purchased
the Products from July 25, 2019 through the date of entry
of class certification for their personal use, rather than
for resale or distribution."
Bayer is a German multinational pharmaceutical and biotechnology
company and one of the largest pharmaceutical companies in the
world. Headquartered in Leverkusen, Bayer's areas of business
include pharmaceuticals; consumer healthcare products, agricultural
chemicals, seeds and biotechnology products.
A copy of the Court's order dated Feb. 28, 2023 is available from
PacerMonitor.com at https://bit.ly/400CTHW at no extra charge.[CC]
BEER BARREL: Fails to Pay Proper Wages, Coker Suit Alleges
----------------------------------------------------------
MALEAH COKER, individually and on behalf of all others similarly
situated, Plaintiff v. BEER BARREL, INC., Defendant, Case No.
3:23-cv-00470-JZ (N.D. Ohio, March 9, 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 Coker was employed by the Defendant as server.
BEER BARREL, INC. owns and operates restaurants in Ohio, and one in
Indiana. [BN]
The Plaintiff is represented by:
Robi J. Baishnab, Esq.
NILGES DRAHER LLC
1360 E 9th St, Suite 808
Cleveland, OH 44114
Telephone: (216) 230-2955
Facsimile: (330) 754-1430
Email:rbaishnab@ohlaborlaw.com
- and -
Shannon M. Draher, Esq.
NILGES DRAHER LLC
7034 Braucher, N.W., Suite B
North Canton, OH 44720
Telephone: (330) 470-4428
Facsimile: (330) 754-1430
Email: sdraher@ohlaborlaw.com
BETTERHELP INC: Faces Doe Suit Over Alleged Illegal Wiretapping
---------------------------------------------------------------
JANE DOE, individually and on behalf of all others similarly
situated, Plaintiff v. BETTERHELP, INC.; and DOES 1-10, inclusive,
Defendants, Case No. 5:23-cv-01096 (N.D. Cal., March 11, 2023)
alleges Defendants' violation of the California Invasion of Privacy
Act.
The Plaintiff alleges in the complaint that BetterHelp transmitted
to third parties portions of patients' private communications for
the primary, if not the sole purpose of sharing such information
with marketing entities. BetterHelp's goal in that transmittal of
private communications was not to provide any benefit to its
patients but instead to (1) increase its marketshare through the
identification of new potential patients and the
recapture/retention of prior patients, and (2) to cultivate and
maintain relationships with various social media sites.
Unbeknownst to users and without their consent, third parties such
as Facebook and thereby its operating company Meta Platforms Inc.
("Meta") allegedly gained the ability to surreptitiously gather
user interaction ranging from what a user clicks on to the personal
information entered on a BetterHelp website by use of invisible
online trackers placed on BetterHealth website pages. These only
trackers then send users unsolicited advertisements based on that
tracking information. This data, which can include health
conditions, diagnoses, procedures, treatment status, the treating
physician, medications, and PII (hereinafter "User Data"), is
viewed, obtained, and used by companies such as Facebook in
connection with targeted advertising, says the suit.
As a result of this illegal information gathering, Plaintiff
received advertisements that were specifically tailored to her User
Data, including sensitive medical information, that he entered on
BetterHelp patient portals, thereby providing other third parties
with access to persons most likely to be interested in their
products or services, the suit alleges.
BETTERHELP, INC. is a mental health platform that provides online
mental health services directly to consumers.
The Plaintiff is represented by:
Alan M. Mansfield, Esq.
WHATLEY KALLAS LLP
16870 West Bernardo Drive, Ste 400
San Diego, CA 92127
Telephone: (619) 308-5034
Facsimile: (888) 341-5048
Email: amansfield@whatleykallas.com
- and -
April M. Strauss, Esq.
APRIL M. STRAUSS, A PC
2500 Mountain View Drive, Bldg 3
Mountain View, CA 94040
Telephone: (650) 281-7081
Email: astrauss@sfaclp.com
- and -
William J. Doyle, Esq.
Chris W. Cantrell, Esq.
DOYLE APC
550 West B Street 4th Floor
San Diego, CA 92101
Telephone: (619) 736-0000
Facsimile: (619) 736-1111
Email: bill@doyleapc.com
chris@doyleapc.com
BP EXPLORATION: Claims in Jackson Suit Dismissed With Prejudice
---------------------------------------------------------------
In the case, BRENDA JOYCE JACKSON v. BP EXPLORATION & PRODUCTION,
INC., ET AL., SECTION "R" (5), Civil Action No. 17-3295 (E.D. La.),
Judge Sarah S. Vance of the U.S. District Court for the Eastern
District of Louisiana grants the motion to exclude the testimony of
the Plaintiff's general causation expert, Dr. Jerald Cook, and the
motion for summary judgment filed by BP Exploration & Production,
Inc., BP America Production Co., and BP p.l.c.
The case arises from the Plaintiff's alleged exposure to toxic
chemicals following the Deepwater Horizon oil spill in the Gulf of
Mexico. The Plaintiff alleges that she performed cleanup work after
the Deepwater Horizon oil spill in 2010.6 Plaintiff asserts that,
as a result of this work, she was exposed to crude oil or
dispersants. She contends that this exposure has resulted in the
following conditions: eye burning, watery eyes, dry eye syndrome,
chronic interstitial lung disease, shortness of breath, pneumonia,
cough, chest pain, body aches, dizziness, weakness, dehydration,
chronic pain, headaches, depression, anxiety, rashes, bunion,
lesions, hypersensitivity dermatitis, anemia, vomiting, diarrhea,
gastroenteritis, dyspepsia, GERD, pneumonitis, asthma, chronic
sinusitis, and chronic rhinitis.
The Plaintiff's case was originally part of the multidistrict
litigation ("MDL") pending before Judge Carl J. Barbier. Her case
was severed from the MDL as one of the "B3" cases for plaintiffs
who either opted out of, or were excluded from, the Deepwater
Horizon Medical Benefits Class Action Settlement Agreement. The
Plaintiff opted out of the settlement. After the Plaintiff's case
was severed, it was reallocated to the Court. The Plaintiff asserts
claims for general maritime negligence, negligence per se, and
gross negligence against the defendants as a result of the oil
spill and its cleanup.
To demonstrate that exposure to crude oil, weathered oil, and
dispersants can cause the symptoms the Plaintiff alleges in her
complaint, she offers the testimony of Dr. Cook, an occupational
and environmental physician. Dr. Cook is the Plaintiff's sole
expert offering an opinion on general causation. In his June 21,
2022 report, Dr. Cook utilizes a general causation approach to
determine if some of the frequently reported health complaints are
indeed from the result of exposures sustained in performing oil
spill cleanup work.
The BP parties contend that Dr. Cook's expert report should be
excluded on the grounds that that it is unreliable and unhelpful.
The Defendants also move for summary judgment, asserting that if
Dr. Cook's general causation opinion is excluded, the Plaintiff is
unable to carry her burden on causation. The Plaintiff opposes both
motions. She contends that the Defendants' failure to record
quantitative exposure data during the oil spill response amounts to
spoliation, and seeks the admission of Dr. Cook's report as a
sanction. The Defendants oppose the Plaintiff's motion.
At issue is whether the Plaintiff has produced admissible general
causation evidence. To prove that exposure to the chemicals in oil
and dispersants can cause the medical conditions she alleges, she
offers the testimony of an environmental toxicologist, Dr. Cook.
Dr. Cook asserts that his report is based on the scientific methods
used in the field of environmental toxicology.
Based on Dr. Cook's report, the Defendants argue that the Plaintiff
is unable to prove general causation with relevant and reliable
expert testimony. They contend that Dr. Cook's general causation
report is unreliable because he fails to: (1) identify the harmful
dose of exposure of any particular chemical to which plaintiff was
exposed that is necessary to cause the plaintiff's conditions; (2)
identify which chemicals can cause which conditions; (3) verify
plaintiff's diagnoses; and (4) follow the accepted methodology for
analyzing epidemiology. They also note that the Court and others in
the district have excluded various versions of Dr. Cook's report
for similar reasons.
It is undisputed that the only substantive change Dr. Cook made in
version four is a revision to Section 3.4.1 of his report, which he
updated to include tables stating the minimal risk levels of a
handful of chemicals found in crude oil and dispersants on certain
systems of the human body.
Judge Vance finds that the Plaintiff, as the party offering the
testimony of Dr. Cook, has failed to meet her burden of
establishing the reliability and relevance of Dr. Cook's report.
Given that Dr. Cook's report is unreliable and fails to provide the
"minimal facts necessary" to establish general causation in the
case, the Defendants' motion to exclude Dr. Cook's testimony is
granted.
The Plaintiff contends that Dr. Cook's report should be admitted as
a sanction for the Defendant's alleged spoliation. She contends
that this sanction is appropriate because BP's decision not to
record quantitative exposure data during the BP Oil Spill response
has deprived plaintiff of data which would quantitatively establish
her exposure.
Judge Vance denies the Plaintiff's spoliation motion. She holds
that the Plaintiff's contention that BP's failure to conduct
monitoring amounts to spoliation is based on the faulty premise
that BP was obligated to develop evidence in anticipation of
litigation. Further, the remedy the Plaintiff seeks -- admission of
Dr. Cook's expert opinion despite its numerous deficiencies -- is
unwarranted. Dr. Cook's report is flawed in ways unrelated to BP's
decision not to conduct monitoring. Thus, Judge Vance declines the
Plaintiff's invitation to admit Dr. Cook's report as a sanction.
Accordingly, the Plaintiff's spoliation motion is denied.
Lastly, in their motion for summary judgment, the Defendants
contend that they are entitled to summary judgment because the
Plaintiff cannot establish either general or specific causation. In
his opposition to the Defendants' motion, the Plaintiff notes that
other sections of this court have denied summary judgment in cases
in which B3 plaintiffs have brought claims premised on transient or
temporary symptoms.
Dr. Cook's failure to identify the level of exposure to a relevant
chemical that can cause the conditions asserted in the Plaintiff's
complaint renders his opinion unreliable, unhelpful, and incapable
of establishing general causation.
Given Dr. Cook's failure to determine the relevant harmful level of
exposure to chemicals to which the Plaintiff was exposed for her
specific conditions, Judge Vance finds that Dr. Cook lacks
sufficient facts to provide a reliable opinion on general
causation. Dr. Cook's opinion is also unhelpful because of her
inability to link any specific chemical that the Plaintiff was
allegedly exposed to, at the level at which she was exposed, to the
health conditions that she purportedly experiences.
Given that the Plaintiff cannot prove a necessary element of her
claims against the Defendants, her claims must be dismissed.
Accordingly, the Defendants' motion for summary judgment is
granted.
The Plaintiff's claims are dismissed with prejudice.
A full-text copy of the Court's Feb. 28, 2023 Order & Reasons is
available at https://tinyurl.com/22zezftx from Leagle.com.
BP EXPLORATION: Court Dismisses Franks' Claims With Prejudice
-------------------------------------------------------------
In the case, ROBERT ANTHONY FRANKS v. BP EXPLORATION & PRODUCTION,
INC., ET AL., SECTION "R" (4), Civil Action No. 17-3216 (E.D. La.),
Judge Sarah S. Vance of the U.S. District Court for the Eastern
District of Louisiana:
a. grants the motion to exclude the testimony of the
Plaintiff's general causation expert, Dr. Jerald Cook and
the motion for summary judgment filed by BP Exploration &
Production, Inc., BP America Production Co, and BP p.l.c.;
and
b. denies the Plaintiff's motion to admit Dr. Cook's report as
a sanction for the Defendants' alleged spoliation.
The case arises from the Plaintiff's alleged exposure to toxic
chemicals following the Deepwater Horizon oil spill in the Gulf of
Mexico. The Plaintiff alleges that he was exposed to crude oil and
dispersants from his work as an onshore and offshore cleanup
worker, during which time he cleaned oil and tar balls of beaches,
dug in sand to retrieve oil, picked up contaminated boom, and
decontaminated equipment. He represents that this exposure has
resulted in the following health problems, among others: decreased
vision and eye burning and irritation; abdominal cramps, diarrhea,
and nausea; depression; dizziness, headaches, and fatigue; sinus
pain, nasal congestion, nosebleeds, and throat irritation;
shortness of breath and wheezing; and skin blistering, acne, boils,
and inflammation.
The Plaintiff's case was originally part of the multidistrict
litigation ("MDL") pending before Judge Carl J. Barbier. His case
was severed from the MDL as one of the "B3" cases for the
Plaintiffs who either opted out of, or were excluded from, the
Deepwater Horizon Medical Benefits Class Action Settlement
Agreement. The Plaintiff opted out of the settlement. After his
case was severed, it was reallocated to this Court. The Plaintiff
asserts claims for general maritime negligence, negligence per se,
and gross negligence against the Defendants as a result of the oil
spill and its cleanup.
To demonstrate that exposure to crude oil, weathered oil, and
dispersants can cause the symptoms plaintiff alleges in his
complaint, he offers the testimony of Dr. Jerald Cook, an
occupational and environmental physician. Dr. Cook is plaintiff's
sole expert offering an opinion on general causation. In his June
21, 2022 report, Dr. Cook utilizes a general causation approach to
determine if some of the frequently reported health complaints are
indeed from the result of exposures sustained in performing oil
spill cleanup work.
The BP parties contend that Dr. Cook's expert report should be
excluded on the grounds that that it is unreliable and unhelpful.
The Defendants also move for summary judgment, asserting that if
Dr. Cook's general causation opinion is excluded, the Plaintiff is
unable to carry his burden on causation.
The Plaintiff opposes both motions. He contends that defendants'
failure to record quantitative exposure data during the oil spill
response amounts to spoliation and seeks the admission of Dr.
Cook's report as a sanction. The Defendants oppose the Plaintiff's
motion.
The Plaintiff has the burden of proving that the legal cause of his
claimed injury or illness is exposure to oil or other chemicals
used during the response. At issue is whether the Plaintiff has
produced admissible general causation evidence. To prove that
exposure to the chemicals in oil and dispersants can cause the
medical conditions the Plaintiff alleges, he offers the testimony
of an environmental toxicologist, Dr. Cook.
Based on Dr. Cook's report, the Defendants argue that the Plaintiff
is unable to prove general causation with relevant and reliable
expert testimony. They contend that Dr. Cook's general causation
report is unreliable because he fails to: (1) identify the harmful
dose of exposure of any particular chemical to which the Plaintiff
was exposed that is necessary to cause the Plaintiff's conditions;
(2) identify which chemicals can cause which conditions; (3) verify
the Plaintiff's diagnoses; and (4) follow the accepted methodology
for analyzing epidemiology. They also note that the Court and
others in this district have excluded various versions of Dr.
Cook's report for similar reasons, including the version at issue.
It is undisputed that the only substantive change Dr. Cook made in
version four is a revision to Section 3.4.1 of his report, which he
updated to include tables stating the minimal risk levels of a
handful of chemicals found in crude oil and dispersants on certain
systems of the human body.
Judge Vance finds that Dr. Cook's failure to identify the level of
exposure to a relevant chemical that can cause the conditions
asserted in the Plaintiff's complaint renders his opinion
unreliable, unhelpful, and incapable of establishing general
causation. Given Dr. Cook's failure to determine the relevant
harmful level of exposure to chemicals to which the Plaintiff was
exposed for his specific conditions, Dr. Cook lacks sufficient
facts to provide a reliable opinion on general causation.
In sum, the Plaintiff, as the party offering the testimony of Dr.
Cook, has failed to meet his burden of establishing the reliability
and relevance of Dr. Cook's report. Given that Dr. Cook's report is
unreliable and fails to provide the "minimal facts necessary" to
establish general causation in the case, Judge Vance grants the
Defendants' motion to exclude Dr. Cook's testimony.
The Plaintiff contends that Dr. Cook's report should be admitted as
a sanction for the Defendant's alleged spoliation. He asserts that
this sanction is appropriate because BP's decision not to record
quantitative exposure data during the BP Oil Spill response has
deprived plaintiff of data which would quantitatively establish his
exposure.
Judge Vance declines the Plaintiff's invitation to admit Dr. Cook's
report as a sanction despite its failure to meet the requirements
of Fed. R. Evid. 702. She says the Plaintiff's spoliation motion
suffers a number of deficiencies. First, his contention that BP's
failure to conduct monitoring amounts to spoliation is based on the
faulty premise that BP was obligated to develop evidence in
anticipation of litigation. Further, the remedy the Plaintiff seeks
-- admission of Dr. Cook's expert opinion despite its numerous
deficiencies -- is unwarranted. Accordingly, the Plaintiff's
spoliation motion is denied.
Lastly, in their motion for summary judgment, the Defendants
contend that they are entitled to summary judgment because the
Plaintiff cannot establish either general or specific causation. In
his opposition to the Defendants' motion, the Plaintiff notes that
other sections of the Court has denied summary judgment in cases in
which B3 plaintiffs have brought claims premised on transient or
temporary symptoms.
Given that the Plaintiff cannot prove a necessary element of his
claims against Defendants, his claims must be dismissed.
Accordingly, Judge Vance grants the Defendants' motion for summary
judgment.
The Plaintiff's claims are dismissed with prejudice.
A full-text copy of the Court's Feb. 28, 2023 Order & Reasons is
available at https://tinyurl.com/mrxr9dv3 from Leagle.com.
BP EXPLORATION: Court Tosses Claims in Loftus Suit With Prejudice
-----------------------------------------------------------------
In the case, WESLEY MICHAEL LOFTUS v. BP EXPLORATION & PRODUCTION,
INC., ET AL., SECTION "R" (1), Civil Action No. 17-3339 (E.D. La.),
Judge Sarah S. Vance of the U.S. District Court for the Eastern
District of Louisiana:
a. grants the motion for summary judgment and motion for
summary judgment filed by BP Exploration & Production,
Inc., BP America Production Co., and BP p.l.c.; and
b. denies the Plaintiff's motion to admit the expert report of
Dr. Cook as a sanction for the Defendants' alleged
spoliation.
The case arises from the Plaintiff's alleged exposure to toxic
chemicals following the Deepwater Horizon oil spill in the Gulf of
Mexico. The Plaintiff alleges that he performed cleanup work after
the Deepwater Horizon oil spill in 2011. He asserts that, as a
result of this work, he was exposed to crude oil or dispersants. He
contends that this exposure has resulted in the following
conditions: hypertension, rashes, bumps, boils, cellulitis,
abscesses, lower extremity pain, thrombophlebitis, infections,
fatigue, dizziness, difficulty concentrating, headaches, night
sweats, insomnia, eye burning, tears, eye irritation, blurred
vision, loss of visual acuity, abdominal pain, kidney stones,
chronic rhinitis, chronic sinusitis, weight loss, tinnitus, sore
throat, insomnia, nasal congestion and inflammation, chest pain,
shortness of breath, and coughing.
The Plaintiff's case was originally part of the multidistrict
litigation ("MDL") pending before Judge Carl J. Barbier. His case
was severed from the MDL as one of the "B3" cases for plaintiffs
who either opted out of, or were excluded from, the Deepwater
Horizon Medical Benefits Class Action Settlement Agreement. The
Plaintiff opted out of the settlement. After the Plaintiff's case
was severed, it was reallocated to this Court. He asserts claims
for general maritime negligence, negligence per se, and gross
negligence against the Defendants as a result of the oil spill and
its cleanup.
To demonstrate that exposure to crude oil, weathered oil, and
dispersants can cause the symptoms the Plaintiff alleges in his
complaint, he offers the testimony of Dr. Jerald Cook, an
occupational and environmental physician. Dr. Cook is the
Plaintiff's sole expert offering an opinion on general causation.
In his June 21, 2022 report, Dr. Cook utilizes a general causation
approach to determine if some of the frequently reported health
complaints are indeed from the result of exposures sustained in
performing oil spill cleanup work.
The BP parties contend that Dr. Cook's expert report should be
excluded on the grounds that that it is unreliable and unhelpful.
The Defendants also move for summary judgment, asserting that if
Dr. Cook's general causation opinion is excluded, the Plaintiff is
unable to carry his burden on causation. The Plaintiff opposes both
motions. He contends that the Defendants' failure to record
quantitative exposure data during the oil spill response amounts to
spoliation, and seeks the admission of Dr. Cook's report as a
sanction. The Defendants oppose the Plaintiff's motion.
The Plaintiff has the burden of proving that the legal cause of her
claimed injury or illness is exposure to oil or other chemicals
used during the response. At issue is whether the Plaintiff has
produced admissible general causation evidence. To prove that
exposure to the chemicals in oil and dispersants can cause the
medical conditions the Plaintiff alleges, he offers the testimony
of an environmental toxicologist, Dr. Cook.
Based on Dr. Cook's report, the Defendants argue that the Plaintiff
is unable to prove general causation with relevant and reliable
expert testimony. They contend that Dr. Cook's general causation
report is unreliable because he fails to: (1) identify the harmful
dose of exposure of any particular chemical to which the Plaintiff
was exposed that is necessary to cause the Plaintiff's conditions;
(2) identify which chemicals can cause which conditions; (3) verify
the Plaintiff's diagnoses; and (4) follow the accepted methodology
for analyzing epidemiology. They also note that the Court and
others in the district have excluded various versions of Dr. Cook's
report for similar reasons, including the version at issue.
It is undisputed that the only substantive change Dr. Cook made in
version four is a revision to Section 3.4.1 of his report, which he
updated to include tables stating the minimal risk levels of a
handful of chemicals found in crude oil and dispersants on certain
systems of the human body.
Judge Vance holds that Dr. Cook's failure to identify the level of
exposure to a relevant chemical that can cause the conditions
asserted in the Plaintiff's complaint renders his opinion
unreliable, unhelpful, and incapable of establishing general
causation. Given Dr. Cook's failure to determine the relevant
harmful level of exposure to chemicals to which the Plaintiff was
exposed for his specific conditions, Dr. Cook lacks sufficient
facts to provide a reliable opinion on general causation.
Judge Vance finds that the Plaintiff, as the party offering the
testimony of Dr. Cook, has failed to meet his burden of
establishing the reliability and relevance of Dr. Cook's report.
Given that Dr. Cook's report is unreliable and fails to provide the
"minimal facts necessary" to establish general causation in the
case, the Defendants' motion to exclude Dr. Cook's testimony is
granted.
The Plaintiff contends that Dr. Cook's report should be admitted as
a sanction for the Defendant's alleged spoliation. He contends that
this sanction is appropriate because BP's decision not to record
quantitative exposure data during the BP Oil Spill response has
deprived him of data which would quantitatively establish his
exposure.
Judge Vance declines the Plaintiff's invitation to admit Dr. Cook's
report as a sanction despite its failure to meet the requirements
of Fed. R. Evid. 702. She finds that the Plaintiff's spoliation
motion suffers a number of deficiencies. First, the Plaintiff's
contention that BP's failure to conduct monitoring amounts to
spoliation is based on the faulty premise that BP was obligated to
develop evidence in anticipation of litigation. Further, the remedy
the Plaintiff seeks -- admission of Dr. Cook's expert opinion
despite its numerous deficiencies -- is unwarranted. Accordingly,
the Plaintiff's spoliation motion is denied.
Lastly, in their motion for summary judgment, the Defendants
contend that they are entitled to summary judgment because the
Plaintiff cannot establish either general or specific causation.
Given that the Plaintiff cannot prove a necessary element of his
claims against the Defendants, his claims must be dismissed.
Accordingly, Judge Vance grants the Defendants' motion for summary
judgment.
The Plaintiff's claims are dismissed with prejudice.
A full-text copy of the Court's Feb. 28, 2023 Order & Reasons is
available at https://tinyurl.com/yvbv87yr from Leagle.com.
BP EXPLORATION: Summary Judgment Bid Granted; Martin Suit Tossed
----------------------------------------------------------------
In the case, LIZZIE MARTIN v. B.P. EXPLORATION & PRODUCTION, INC.,
ET AL., SECTION "R" (4), Civil Action No. 17-4424 (E.D. La.), Judge
Sarah S. Vance of the U.S. District Court for the Eastern District
of Louisiana grants BP Exploration & Production, Inc., BP America
Production Company, and BP p.l.c.'s unopposed motion for summary
judgment and dismisses the Plaintiff's complaint with prejudice.
The case arises from the Plaintiff's alleged exposure to toxic
chemicals following the Deepwater Horizon oil spill in the Gulf of
Mexico by virtue of her presence in the environment in Gulfport,
Mississippi beginning in April of 2010. The Plaintiff contends that
since the alleged exposure, she has experienced, among other
things, nausea; headaches; watery, burning, dry, and red eyes;
dizziness; breathing problems; ear aches; sinus pain, allergic
rhinitis, sinusitis, and maxillary sinusitis; sore throat;
productive cough; pitting edema; abdominal cramps and pain;
diarrhea; rashes; skin irritation; conjunctivitis; blurred vision;
hypertension; severe otalgia; PTSD; depression; bronchitis; and
chronic paroxysmal nocturnal dyspnea.
The Plaintiff's case was originally part of the multidistrict
litigation ("MDL") pending before Judge Carl J. Barbier. Her case
was severed from the MDL as one of the "B3" cases for plaintiffs
who either opted out of, or were excluded from, the Deepwater
Horizon Medical Benefits Class Action Settlement Agreement. The
Plaintiff opted out of the settlement. After her case was severed,
it was reallocated to this Court.
On March 14, 2022, the Court issued a scheduling order that
established, among other deadlines, that the Plaintiff's expert
disclosures had to be "obtained and delivered" to the defense
counsel by no later than Jan. 13, 2023. The Defendants now move for
summary judgment, arguing that because the Plaintiff has not
identified any expert testimony, she is unable to carry her burden
on causation. The Plaintiff does not oppose the Defendants'
motion.
The Plaintiff asserts claims for general maritime negligence,
negligence per se, and gross negligence against the Defendants as a
result of the oil spill. The Defendants contend that the Plaintiff
cannot prove that exposure to oil or dispersants was the legal
cause of her alleged injuries, and thus that she cannot prove a
necessary element of her claims against them.
Judge Vance explains that under the general maritime law, a party's
negligence is actionable only if it is a legal cause of the
plaintiff's injuries. To prevail in a toxic tort case, a plaintiff
must show both general causation and specific causation. "General
causation is whether a substance is capable of causing a particular
injury or condition in the general population, while specific
causation is whether a substance caused a particular individual's
injury. Expert testimony is required to establish general causation
in toxic-tort cases like the instant case. Courts have also
required expert testimony as to specific causation when the
symptoms are not within the common knowledge of laypersons and not
classified as transient or temporary.
The Plaintiff has not disclosed any experts on either general or
specific causation, Judge Vance finds. As the Plaintiff is unable
to create an issue of material fact on causation, she grants the
Defendants' motion for summary judgment and dismisses the
Plaintiff's complaint with prejudice.
A full-text copy of the Court's Feb. 24, 2023 Order & Reasons is
available at https://tinyurl.com/ycksusuk from Leagle.com.
BUFFALO WILD: Chicago Man Sues Over Boneless Wings' False Ads
-------------------------------------------------------------
Eli Ong at wgntv.com reports that a Chicago man has filed a
class-action lawsuit against Buffalo Wild Wings, claiming the
restaurant chain falsely advertises its boneless wings as the real
deal, when in reality, he believes them to be nothing more than
chicken nuggets.
According to court documents obtained by WGN, the plaintiff, Aimen
Halim, filed a complaint in the U.S. District Court of Northern
Illinois against Buffalo Wild Wings and Inspire Brands Inc., an
Atlanta-based company who the complaint says "is responsible for
the composition, preparation, advertising, marketing and sale of"
Buffalo Wild Wings' product.
The complaint seeks to challenge what it calls "the false and
deceptive marketing and advertising of Buffalo Wild Wings' Boneless
Wings," and goes on to say, "Specifically, the name and description
of the Products (i.e., as "Boneless Wings") leads reasonable
consumers to believe the Products are actually chicken wings."
Halim claims Buffalo Wild Wings description of the product leads
customers to believe their boneless wings are deboned chicken wings
made up completely of chicken wing meat, when the product is
actually slices of chicken breast deep fried like chicken wings,
and are compositionally more like chicken nuggets.
Buffalo Wild Wings provided a tweet in response to a request for
comment from WGN, which said, "It's true. Our boneless wings are
all white meat chicken. Our hamburgers contain no ham. Our buffalo
wings are 0% buffalo."
This all stems back to January 2023 when Halim bought boneless
wings from a Buffalo Wild Wings in Mount Prospect, Illinois and
thought just that: the boneless wings he purchased were exclusively
made from chicken wing meat.
When Halim found out Buffalo Wild Wings' boneless wings weren't
deboned chicken wings, he said he would not have purchased them, or
would have paid significantly less for the product.
As a result, Halim said he suffered a financial injury due to the
restaurant's "false and deceptive conduct."
Halim goes on to compare Buffalo Wild Wings to other fast food
restaurant chains like Papa Johns and Domino's in the complaint,
noting that both companies sell products like Buffalo Wild Wings'
boneless wings, but they do not call them as such.
At Papa Johns, the product is called "Chicken Poppers," while at
Domino's, they are called "boneless chicken."
Another part of Halim's complaint details background information
behind how the practice of selling boneless wings became more
commonplace, where he cites a 2009 article from the New York
Times.
". . . [I]n restaurants from Sarasota to Seattle, an improbable
poultry part is showing up on menus: a little chunk of chicken
breast that is fried and sauced and sold, with marketer's brio, as
a "boneless wing." All this is happening because wholesale chicken
prices have turned upside down. The once-lowly wing is selling at a
premium over what has long been the gold standard of poultry parts,
the skinless boneless chicken breast."
William Neuman, New York Times
Since the publication of Neuman's article in the New York Times,
selling 'boneless wings' has become more popular, but the cost of
traditional chicken wings versus the cost of chicken breasts that
make up boneless wings has fluctuated over the last several years.
A USDA National Retail Report found boneless, skinless chicken
breast prices fell almost a full dollar a pound compared to rising
bone-in wing prices in 2020, but over the last year, the price of
regular boneless, skinless chicken breasts has fallen from $3.99 to
$3.53 a pound, while whole wings have dropped from $4.29 to $2.30 a
pound.
Halim is suing for relief from violation of the Illinois Consumer
Fraud and Deceptive Business Practices Act (ICFA), Breach of
Express Warranty, Common Law Fraud and Quasi Contract/Unjust
Enrichment/Restitution. The full complaint can be read below.[GN]
C.H. ROBINSON: Bids for Partial Summary Judgment Granted in Part
----------------------------------------------------------------
In the class action lawsuit captioned as JMR FARMS, INC. et al.,
individually and on behalf of all others similarly situated, v.
C.H. ROBINSON WORLDWIDE, INC. et al., Case No.
0:20-cv-00879-PJS-ECW (D. Minn.), the Hon. Judge Patrick J. Schiltz
entered an order granting in part and denying in part the Parties'
motions for partial summary judgment:
The Plaintiffs Bonne Idee Bowles are producing farmers. The
Plaintiffs contracted with the Defendant CHR, a third‐party
logistics company, to market, sell, and transport their produce to
grocers, restaurants, and other buyers. CHR charged a commission to
the Plaintiffs for its services. The Plaintiffs later learned that
CHR also profited by adding a markup to the amount that CHR charged
to buyers to transport the produce.
The Plaintiffs refer to this practice as "freight topping," because
CHR "tops" the actual cost of freight by adding a markup. According
to the Plaintiffs, although this markup was charged to the buyer in
form, it was paid by the grower in substance, as the more that CHR
took as its markup, the less that the grower received for its
produce. The Plaintiffs say that CHR never disclosed this practice
to them.
The Plaintiffs brought this putative class action on behalf of
themselves and other growers who were allegedly harmed by CHR's
freight topping. the Plaintiffs allege that CHR's freight topping
was unlawful for three reasons:
(1) it violated the Perishable Agricultural Commodities Act
("PACA");
(2) it breached a fiduciary duty that CHR owed to the
Plaintiffs; and
(3) it breached the contracts between CHR and the Plaintiffs.
C.H. Robinson is an operator of third-party logistics and supply
chain management services.
A copy of the Court's order dated March 1, 2023 is available from
PacerMonitor.com at https://bit.ly/3TaqE9t at no extra charge.[CC]
The Plaintiff is represented by:
Richard M. Paul III, Esq.
Sean R. Cooper, Esq.
Laura C. Fellows, Esq.
Steven L. Rowe, Esq.
PAUL LLP
601 Walnut St UNIT 300
Kansas City, MO 64106
Telephone: (855) 984-8100
- and -
Craig A. Stokes, Esq.
STOKES LAW OFFICE LLP
3330 Oakwell Ct No. 225
San Antonio, TX 78218
Telephone: (210) 871-0280
- and -
Jennifer Neal, Esq.
Francisco Guerra, IV, Esq.
Mark Fassold, Esq.
WATTS GUERRA LLP
4 Dominion Dr Building 3 Suite No. 100
San Antonio, TX 78257
Telephone: (210) 447-0500
- and -
Robert A. Pollom, Esq.
LOYD & POLLOM, PPLC
12703 Spectrum Dr Suite 201
San Antonio, TX 78249
Telephone: (210) 775-2234
the Defendant is represented by:
Mark W. Wallin, Esq.
Christina M. Janice, Esq.
BARNES & THORNBURG, LLP
11 S. Meridian Street
Indianapolis, IN 46204
- and -
Patrick J. Rooney, Esq.
Bradley R. Hutter, Esq.
FAFINSKI MARK &
JOHNSON P.A.
775 Prairie Center Dr #400
Eden Prairie, MN 55344
Telephone: (952) 995-9500
CALIFORNIA: Court Dismisses Gutierrez's Bid for Immediate Release
-----------------------------------------------------------------
In the lawsuit captioned JOSE JESUS GUTIERREZ, Petitioner v. BRIAN
BIRKHOLZ, et al., Respondents, Case No. 2:22-06983 SVW (ADS) (C.D.
Cal.), Judge Stephen V. Wilson of the U.S. District Court for the
Central District of California dismisses the Emergency Motion
Seeking Immediate Release from the BOP and Termination of Sentence
Under 28 U.S.C. Section 2241.
Although the Petition includes the words "emergency motion" and
"injunction," the Court construes the filing as a petition seeking
expedited adjudication on the merits because the Petitioner has not
complied with the requirements for emergency injunctive relief.
This Petition concerns the conditions of confinement at Federal
Correctional Complex located in Lompoc, California ("FCC Lompoc")
where the Petitioner is in custody. The Petitioner alleges that
there is: (1) substandard medical care; (2) medical providers are
poorly trained; (3) the current conditions of confinement are
violations of the Fifth and Eighth Amendment of the U.S.
Constitution; and (4) the class action, Torres v. Milusnic, Case
No. 2:20-cv-04450-CBM-PVCx, has not yet provided him relief from
the unconstitutional conditions of confinement.
On May 16, 2020, a class of inmates medically vulnerable to severe
illness or death from COVID-19 at FCC Lompoc brought an action
against the Director of the Bureau of Prisons ("BOP") and the
Warden of Lompoc (Torres, et al. v. Milusnic, et al., causes of
action related to unconstitutional conditions of confinement.)
On Oct 11, 2022, the Honorable Consuelo B. Marshall approved the
class action settlement. The settlement requires FCC Lompoc to
continue the home confinement review process established by the
preliminary injunction and follow guidelines to protect inmates
from COVID-19. The settlement agreement does not preclude a class
member from filing an individual habeas petition under 28 U.S.C.
Section 2241.
The Petitioner claims that his current health conditions put him at
high risk and make him vulnerable to COVID-19. He lists his health
conditions as follows: hyperlipidemia, unspecified, essential
(primary) hypertension, gastro-esophageal reflux disease with
esophagitis without bleeding, hyperglycemia, hemorrhage of anus and
rectum, and body mass index of 31.0-31.9, adult. As relief, the
Petitioner seeks immediate release, termination of his custody from
the BOP, and an end to his sentence.
The Plaintiff purports to file a petition under 28 U.S.C. Section
2241. 28 U.S.C. Section 2241 petitions challenge the manner,
location, or conditions of a sentence's execution and must be
brought in the custodial court. The Ninth Circuit has declined to
address the issue of whether habeas relief is available to claims
alleging unconstitutional conditions of confinement due to the
COVID-19 pandemic.
The Court finds the cases concluding that habeas review is not
available to conditions of confinement claims based upon the
COVID-19 pandemic to be more persuasive. Here, the basis of the
Petition concerns the conditions at FCC Lompoc. The Petitioner
alleges conditions such as lack of social distancing between
inmates, poor ventilation, contaminated surfaces, infrequent COVID
testing, and resulting health problems.
Judge Wilson opines that these allegations suggest that immediate
release is not the only relief available to the Petitioner and that
other relief related to improving the conditions at FCC Lompoc is
more appropriate. In fact, the Petitioner acknowledged that the
class action can potentially offer him relief by alleging that the
action has not yet given him relief from the unconstitutional
conditions of confinement. As such, given the weight of authority
within the Ninth Circuit, the Court finds that the Petitioner's
claims are not cognizable in habeas review.
Finally, the Court declines to convert or construe the Petition as
a civil rights complaint. The Petitioner has not demonstrated that
he has exhausted the available administrative remedies. Conversion
also would not be appropriate at this time given Judge Marshall's
recent approval of the final settlement in Torres, et al. v.
Milusnic, et al., to state a cognizable claim under 28 U.S.C.
Section 2241.
For these reasons, Judge Wilson dismisses the Petition.
A full-text copy of the Court's Order dated Feb. 23, 2023, is
available at https://tinyurl.com/yzvw6txk from Leagle.com.
CALYXT INC: Keller Sues Over Breach of Fiduciary Duties
-------------------------------------------------------
Sholom D. Keller, on behalf of himself and all others similarly
situated v. CALYXT, INC., YVES RIBEILL, LAURENT ARTHAUD, MICHAEL A.
CARR, PHILIPPE DUMONT, JONATHAN FASSBERG, ANNA EWA
KOZICZ-STANKIEWICZ, KIMBERLY K. NELSON, and CHRISTOPHER J. NEUGENT,
Case No. 2023-0297- (Del. Chancery Ct., March 9, 2023), is brought
by the Plaintiff against Calyxt, Inc. and the members of the
Company's Board for breach of fiduciary duties under Delaware law.
Plaintiff's claims arise in connection with the Board's
solicitation of public stockholders of Calyxt to approve, inter
alia, the proposed issuance ("Stock Issuance") of new Calyxt shares
to the current equity holders of Cibus Global, LLC pursuant to an
exchange ratio that will result in current Cibus equity holders
owning approximately 95% of the common stock of the combined
company, and current Calyxt stockholders owning just 5% of the
common stock of the Combined Company.
On January 17, 2023, Calyxt and Cibus announced their entry into a
merger agreement ("Merger Agreement") to effectuate a proposed
merger ("Merger") between the two companies via the Stock Issuance.
On February 14, 2023, Calyxt filed a preliminary Form S-4
Registration Statement, which also constituted a proxy ("Proxy")
under the Exchange Act soliciting Calyxt stockholders to vote in
favor of, inter alia, the Stock Issuance at a special meeting
("Special Meeting") to be held on a date yet to be scheduled
("Stockholder Vote").
The Board breached their fiduciary duties under Delaware law by
disseminating a Proxy that contains material omissions concerning
management projections, confidentiality agreements entered into by
Calyxt in connection with its strategic process, and the allocation
of ownership in the Combined Company between Calyxt stockholders
and Cibus equity holders. These material omissions must be cured in
advance of the Stockholder Vote to enable Calyxt stockholders to
cast informed votes with respect to the Stock Issuance.
Therefore, the Plaintiff seeks to enjoin the Defendants from taking
any further steps to consummate the Stock Issuance and schedule the
Stockholder Vote, until such material omissions are cured.
Alternatively, if the Merger is consummated, Plaintiff reserves the
right to recover damages suffered by Plaintiff and
similarly-situated investors as a result of the Board's breaches of
fiduciary duty, says the complaint.
The Plaintiff is a continuous stockholder of Calyxt common stock.
Calyxt is a plant-based synthetic biology company that leverages
its proprietary PlantSpring platform and Plant Cell Matrix ("PCM")
technology to engineer plant metabolism to produce innovative, high
value plant-based chemical compounds for use in customers'
materials and products.[BN]
The Plaintiff is represented by:
Blake A. Bennett, Esq.
Andrew A. Ralli, Esq.
COOCH AND TAYLOR P.A.
1007 N. Orange Street, Suite 1120
Wilmington, DE 19801
Phone: (302) 984-3821
Facsimile: (302) 984-3939
- and -
Joshua E. Fruchter, Esq.
WOHL & FRUCHTER LLP
25 Robert Pitt Drive, Suite 209G
Monsey, NY 10952
Phone: (845) 290-6818
Fax: (718) 504-3773
Email: jfruchter@wohlfruchter.com
CAROLINE LIEBENBERG: General Pretrial Management Order Entered
--------------------------------------------------------------
In the class action lawsuit captioned as PERICLES LANTZ, v.
CAROLINE LIEBENBERG, et al., Case No. 1:22-cv-04855-AT-BCM
(S.D.N.Y.), the Hon. Judge Barbara Moses entered an order regarding
general pretrial management and scheduling discovery conference as
follows:
-- All pretrial motions and applications, including those
related to scheduling and discovery (but excluding motions
to dismiss or for judgment on the pleadings, for injunctive
relief, for summary judgment, or for class certification
under Fed. R. Civ. P. 23) must be made to Judge Moses and
in compliance with this Court's Individual Practices in
Civil Cases, available on the Court'swebsite at
https://nysd.uscourts.gov/hon-barbara-moses.
-- Any future discovery applications, including letter-motions
requesting discovery conferences, must be made promptly
after the need for such an application arises and must
comply with Local Civil Rule 37.2 and § 2(b) of Judge
Moses's Individual Practices.
-- For motions other than discovery motions, pre-motion
conferences are not required, but may be requested where
counsel believe that an informal conference with the Court
may obviate the need for a motion or narrow the issues.
A copy of the Court's order dated March 1, 2023 is available from
PacerMonitor.com at https://bit.ly/426coTd at no extra charge.[CC]
CARRIER GLOBAL: Dismissal of Darnis Suit Under Appeal
-----------------------------------------------------
Carrier Global Corporation disclosed in its Form 10-Q report for
the quarterly period ended December 31, 2022, filed with the
Securities and Exchange Commission on February 7, 2023, that in
August 12, 2020, several former employees of United Technologies
Corporation (UTC) or its subsidiaries filed a putative class action
complaint) in the United States District Court for the District of
Connecticut against Raytheon Technologies Corporation, Carrier,
Otis, the former members of the UTC Board of Directors and the
members of the Carrier and Otis Boards of Directors captioned
"Geraud Darnis, et al. v. Raytheon Technologies Corporation, et
al." The case has been dismissed by the Court with the plantiffs
filing an appeal over the dismissal.
The complaint challenged the method by which UTC equity awards were
converted to UTC, Carrier and Otis equity awards following the
Separation and the Distribution. Defendants moved to dismiss the
Complaint. Plaintiffs amended their Complaint on September 13,
2021. The Amended Complaint, with Raytheon, Carrier and Otis as the
only defendants, asserted that the defendants are liable for breach
of certain equity compensation plans and for breach of the implied
covenant of good faith and fair dealing.
Defendants moved to dismiss the Amended Complaint. On September 30,
2022, the court dismissed the case against all defendants, with
prejudice. Plaintiffs appealed the dismissal to the United States
court of Appeals for the Second Circuit. The briefing process is
ongoing.
Carrier Global Corporation is a provider of building and cold chain
solutions based in Florida.
CENGAGE LEARNING: Expert Testimony Excluded in Bernstein Suit
-------------------------------------------------------------
In the class action lawsuit captioned as Bernstein v. Cengage
Learning, Inc., Case No. 1:19-cv-07541-ALC-SLC (S.D.N.Y.), the Hon.
Judge Sarah L. Cave entered an order granting:
(i) the Plaintiffs' Opposition to the Defendant's Motion to
Exclude the Expert Testimony of Daniel F. Spulber,
(ii) accompanying exhibits 1–3 under seal, and
(iii) exhibit of the Plaintiffs' reply letter-motion and the
documents at ECF Nos. 206-4, 208, 209 and 209-1, 209-2,
209-3 shall remain visible only to the selected parties.
The Clerk of Court is directed to (i) designate the documents at
ECF Nos. 206 – 206-3 as viewable to the public, and (ii) close
ECF No. 205.
Cengage Learning provides learning solutions.
A copy of the Court's order dated March 1, 2023 is available from
PacerMonitor.com at https://bit.ly/3ywF0rn at no extra charge.[CC]
The Plaintiff is represented by:
Alexander W. Aiken, Esq.
SUSMAN GODFREY L.L.P.
1301 Avenue of the Americas, 32nd Floor
New York, NY 10019
Telephone:(212) 336-8330
Facsimile: (212) 336-8340
E-mail: aaiken@susmangodfrey.com
CENTENE MANAGEMENT: Seeks Leave to File Class Cert Sur-Reply
------------------------------------------------------------
In the class action lawsuit captioned as Erin Angelo et al., v.
Centene Management Company, LLC, Celtic Insurance Company, Superior
HealthPlan, Inc., and Centene Company of Texas, L.P., Case No.
1:20-cv-00484-RP (W.D. Tex.), the Defendant files unopposed motion
for leave to file surreply in opposition to class certification.
Because Dr. Haeder's model for classwide damages is essential to
the Plaintiffs' motion for class certification, the Defendants are
entitled to respond to his rebuttal damages methodology -- which
"abandons" his original damages methodology and adopts a new more
flawed one.
Instead, Dr. Haeder now says he is calculating the difference in
value between his estimate of Superior's actual network "breadth"
(defined as the number of providers in the network divided by the
number of available providers in the relevant area) and the network
breadth that Superior allegedly promised to its consumers.
Because Dr. Haeder changed his damages methodology after the
Defendants filed their Opposition to Class Certification, the
Defendants have not had an opportunity to address the fatal flaws
in the Plaintiffs' new purported classwide damages model and their
implication for certification.
A copy of the the Defendants' motion dated March 1, 2023 is
available from PacerMonitor.com at https://bit.ly/3l4AUna at no
extra charge.[CC]
the Defendants are represented by:
Steven M. Cady, Esq.
WILLIAMS & CONNOLLY LLP
680 Maine Avenue SW
Washington, DC 20024
Telephone: (202) 434-5321
Facsimile: (202) 434-5029
E-mail: scady@wc.com
- and -
Lorinda G. Holloway, Esq.
Timothy P. Ribelin, Esq.
HUSCH BLACKWELL LLP
111 Congress Avenue, Suite 1400
Austin, TX 78701-4093
Telephone: (512) 479-1149
Facsimile: (512) 479-1101
E-mail: lorinda.holloway@huschblackwell.com
CEREBRAL INC: C.D. California Denies Bid to Remand Cullors Suit
---------------------------------------------------------------
In the lawsuit entitled STACIA CULLORS, et al., Plaintiffs v.
CEREBRAL, INC., Defendant, Case No. CV 22-9143 DSF (PDx) (C.D.
Cal.), Judge Dale S. Fischer of the U.S. District Court for the
Central District of California denies the Plaintiffs' motion to
remand.
Defendant Cerebral, Inc., removed this case based on the Class
Action Fairness Act (CAFA). The Plaintiffs now move to remand,
arguing that the Defendant cannot establish that the amount in
controversy exceeds $5 million.
The complaint does not specify an amount demanded, and the
Defendant has made certain assumptions in support of its argument
that the amount in controversy is more than $5 million. When a
defendant attempts to establish the amount in controversy this way,
it has the burden of proving by a preponderance of the evidence
that its assumptions are reasonable. However, a defendant is not
required to make the plaintiff's case for it -- i.e., a defendant
is not required to establish that it is likely that the plaintiff
will actually recover an amount in excess of the jurisdictional
threshold.
The product at issue is a subscription-based telehealth mental
health service. The Plaintiffs claim that the Defendant did not
provide the services promised or did not provide them in a
competent fashion. The proposed nationwide class is defined as:
All persons in the United States who purchased a Cerebral
subscription from Cerebral's website or mobile app and who
i) did not receive diligent mental-health care including
regular assessments, regular appointments with prescribers
and counselors, and competent medication management and/or
ii) were charged for subscription services without receiving
the promised mental health services.
The Defendant argues that this class definition and the underlying
claims do not limit in any meaningful way the number of the
Defendant's subscribers that might be at issue. The Court agrees.
The Plaintiffs allege that the Defendant had a practice of
promising services and results that it did not and would not
provide to its subscribers. The complaint does not say or imply
that there was some class of subscribers, who did receive what was
promised. The Plaintiffs argue that because the class is defined,
essentially, as the Defendant's customers, who have meritorious
claims in this action, there are some of the Defendant's customers,
who might have received the care promised and are not at issue.
But this runs afoul of the general principle that a defendant is
not required to prove a plaintiff's case for it when establishing
the amount in controversy, Judge Fischer says. The actual
allegations strongly imply, if not outright state, that it was the
Defendant's policy not to provide the care promised and it is
reasonable to assume -- especially in the context of a proposed
class action -- that this policy was applied in a widespread manner
to the Defendant's customers.
In this context, the Court finds by a preponderance of the evidence
that it is reasonable to assume that any subscriber, who cancelled
the service within a short time -- a month or two as suggested by
the Defendant -- is potentially at issue in the case because a
quick cancellation implies that the subscriber was unhappy in some
way with the services provided. The Defendant provides evidence
that the subscription fees paid by subscribers, who cancelled
within a month, exceeds the $5 million jurisdictional amount and
cancellations within two months exceeds $10 million.
The Plaintiffs challenge the evidence submitted to prove this
amount as insufficient. The Defendant has provided a declaration
from an employee, Sid Salvi, stating that he has reviewed the
Defendant's business records and those records show that since
Cerebral's inception in 2020, the amount of subscription fees paid
by Cerebral users, who canceled their Cerebral account in the first
month of subscribing is more than $5 million, and those in the
second month is more than $10 million.
The Plaintiffs complain that at no point does Mr. Salvi indicate
what factors are included or excluded from his consideration, nor
does he provide any details about how the computation of total
subscription fees is obtained other than stating that they are
'more than' $5 million and $10 million. The Plaintiffs argue that
the Defendant should have specified how the data cited by the
declarant was compiled, what underlying data was expressly
included/excluded in the computation and how the amounts were
generated.
But this is not a complicated calculation and it is obvious how the
amounts would have been compiled, Judge Fischer holds. Salvi says
that he consulted the Defendant's business records to retrieve the
information he relies on. This implies that the records show when
subscribers cancelled their memberships from which it can be
ascertained how many subscribers cancelled their memberships in one
or two months, and how much in subscription fees they paid.
Judge Fischer points out that this is basic business information
that any sophisticated business of any size would maintain. There
is no reason to remand a case because the declarant did not spell
this information out in detail.
The motion to remand is denied.
A full-text copy of the Court's Order dated Feb. 23, 2023, is
available at https://tinyurl.com/yc53cdjz from Leagle.com.
CEREBRAL INC: Federman Sues Over Data Privacy Violations
--------------------------------------------------------
BARAK FEDERMAN, individually and on behalf of all others similarly
situated, Plaintiff v. CEREBRAL INC., Defendant, Case No.
2:23-cv-01803 (C.D. Cal., March 10, 2023) alleges violation of the
Electronic Communications Privacy Act.
The Plaintiff alleges in the complaint that the Defendant
transmitted and disclosed the Plaintiff's and Class Members'
confidential personally identifiable information ("PII") and
protected health information ("PHI") (collectively referred to as
"Private Information" or "PII and PHI") to Meta Platforms, Inc.
d/b/a Meta ("Facebook") and/or Google LLC d/b/a Google ("Google")
via a tracking pixel ("Tracking Pixel" or "Pixel") installed on
Defendant's website.
According to the complaint, the Defendant breached its obligations
by (i) failing to adequately review its marketing programs and web
based technology to ensure the Defendant's Website was safe and
secure; (ii) failing to remove or disengage technology that was
known and designed to share web-users' information; (iii) failing
to obtain the consent from Plaintiff and Class Members before
disclosing their Private Information to Facebook, Google, or
others; (iv) failing to take steps to block the transmission of
Plaintiff's and Class Members' Private Information through Tracking
Pixels; and (v) otherwise failing to design and monitor its Website
to maintain the confidentiality and integrity of patient Private
Information.
CEREBRAL INC. provides health care software solutions. The Company
offers platform which gives access to on-demand mental health and
wellness support which includes behavioral health coaching, talk
therapy, medication management, and personalized content. [BN]
The Plaintiff is represented by:
John J. Nelson, Esq.
MILBERG COLEMAN BRYSON
PHILLIPS GROSSMAN, PLLC
280 S. Beverly Drive
Beverly Hills, CA 90212
Telephone: (858) 209-6941
Facsimile: (865) 522-0049
Email: jnelson@milberg.com
CHARTER COMMUNICATIONS: Steinberg Suit Removed to S.D. California
-----------------------------------------------------------------
The case styled as Erica Steinberg, individually and on behalf of
all others similarly situated v. Charter Communications, Does 1
through 25, Case No. 23STCV00099 was removed from the Superior
Court of California, County of Los Angeles, to the U.S. District
Court for the Southern District of California on March 10, 2023.
The District Court Clerk assigned Case No. 2:23-cv-01821 to the
proceeding.
The nature of suit is stated as Other Fraud.
Charter Communications, Inc. -- http://corporate.charter.com/-- is
an American telecommunications and mass media company with services
branded as Spectrum.[BN]
The Plaintiff appears pro se.
The Defendants are represented by:
Amy M. Gallegos, Esq.
JENNER AND BLOCK LLP
515 South Flower Street Suite 3300
Los Angeles, CA 90071-2246
Phone: (213) 239-2208
Fax: (213) 239-2218
Email: agallegos@jenner.com
CHERRY CREEK: McKnight Suit Remanded to District Court
------------------------------------------------------
In the class action lawsuit captioned as GLENN MCKNIGHT and CARLTON
A. SMITH II, Individually and on behalf of all others similarly
situated, v. CHERRY CREEK MORTGAGE, LLC, a Delaware company d/b/a
"Blue Spot Home Loans," and STEVEN NAKASH, individually, Case No.
1:22-cv-02660-RMR-KLM (D. Colo.), the Hon. Judge Regina M.
Rodriguez entered an order:
1. Granting joint motion to remand case to Arapahoe County
District Court; and
2. Denying as moot the plaintiffs' motion for conditional
certification.
The Plaintiffs shall file their amended complaint within 30 days.
The Plaintiffs shall file their unopposed motion seeking approval
of the settlement within 60 days.
Cherry Creek is a full service mortgage banking company.
A copy of the Court's order dated March 1, 2023 is available from
PacerMonitor.com at https://bit.ly/3JxzgnD at no extra charge.[CC]
CONAGRA BRANDS: Bohen Sues Over Deceptive Sustainability Labels
---------------------------------------------------------------
JOHN BOHEN and ABDALLAH NASSER, individually, and on behalf of all
others similarly situated, Plaintiffs v. CONAGRA BRANDS INC.,
Defendant, Case No. 1:23-cv-01298 (N.D. Ill., March 2, 2023) is a
class action against the Defendants for alleged deceptive business
practices in violation of the Illinois Consumer Fraud and Deceptive
Trade Practices Act, the Illinois Uniform Deceptive Trade Practices
Act, the California Consumers Legal Remedies Act, the California
Unfair Competition Law, the California False Advertising Law, the
Virginia Consumer Protection Act of 1977, and State Consumer
Protection Statutes.
According to the complaint, the Defendant charges a premium for its
seafood products that uniformly promise to be "certified
sustainable seafood" supported by a prominent certification from
the Marine Stewardship Council in the form of a blue stamp on the
product labels, hereinafter, the "Sustainability Promise."
The prominent Sustainability Promise found on each and every
product label allegedly deceives and misleads reasonable consumers
into believing the products are sourced from sustainable fishing
practices. The Defendant turns a blind eye to the unsustainable
fishing practices used in sourcing its products and boldly uses the
Sustainability Promise with the blue stamp as proof of sustainable
fishing methods. However, as Defendant knew or should have known,
the Council hands out this certification to those who use
industrial fishing methods that injure marine life as well as ocean
habitats with destructive fishing. The Council also allows its
members to obtain their certification with a paid membership,
creating a potential conflict of interest, says the suit.
Due to Defendant's false and deceptive labeling, Plaintiffs and
reasonable consumers purchased products based upon their reliance
on Conagra's compliance with its Sustainability Promise. Had
Plaintiffs and Class Members been aware that Defendant's fishing
techniques used to source its products were not sustainable,
Plaintiffs and Class Members would not have purchased the Products
or would not have paid more for the products, the suit contends.
Conagra Brands Inc. is an American consumer packaged goods holding
company headquartered in Chicago, Illinois.[BN]
The Plaintiffs are represented by:
Gary M. Klinger, Esq.
MILBERG COLEMAN BRYSON PHILLIPS GROSSMAN LLC
227 West Monroe Street, Suite 2100
Chicago, IL 60606
Telephone: (866) 252-0878
E-mail: gklinger@milberg.com
- and -
Rachel L. Soffin, Esq.
MILBERG COLEMAN BRYSON PHILLIPS GROSSMAN LLC
800 South Gay Street, Suite 1100
Knoxville, TN 37929
Telephone: (865) 247-0080
E-mail: rsoffin@milberg.com
- and -
Harper T. Segui, Esq.
MILBERG COLEMAN BRYSON PHILLIPS GROSSMAN LLC
825 Lowcountry Boulevard, Suite 101
Mt. Pleasant, SC 29464
E-mail: hsegui@milberg.com
- and -
MELISSA S. Weiner, Esq.
PEARSON WARSHAW, LLP
328 Barry Avenue South, Suite 200
Wayzata, MN 55391
Telephone: (612) 389-0600
Facsimile: (612) 389-0610
E-mail: mweiner@pwfirm.com
- and -
Daniel L. Warshaw, Esq.
Michael H. Pearson, Esq.
PEARSON WARSHAW, LLP
15165 Ventura Boulevard, Suite 400
Sherman Oaks, CA 91403
Telephone: (818) 788-8300
Facsimile: (818) 788-8104
E-mail: dwarshaw@pwfirm.com
mpearson@pwfirm.com
- and -
Ari Kresch, Esq.
Wendy Kerner, Esq.
KRESCH LEGAL SERVICES PR, PLLC
1225 Avenida Ponce de Leon, Suite 605
San Juan, PR 00907
Telephone: (800) 529-3476
E-mail: akresch@1800lawfirm.com
wkerner@1800lawfirm.com
CONOPCO INC: Bid to Dismiss Candeleria's Class Claims Nixed
-----------------------------------------------------------
In the class action lawsuit captioned as ELIZABETH CANDELARIA, on
behalf of herself and all others similarly situated, v. CONOPCO,
INC. d/b/a UNILEVER HOME & PERSONAL CARE USA, Case No.
1:21-cv-06760-FB-TAM (E.D.N.Y.), the Hon. Judge Frederic Block
entered an order denying Unilever's motion to dismiss Candeleria's
claims.
Unilever's motion to strike the Complaint's class allegations is
granted with respect to claims for injunctive relief under Rule
23(b)(2) and denied with respect to all other allegations.
Accordingly, the Court directs that paragraph 63 be stricken from
the Complaint.
First, Unilever argues that Candelaria cannot satisfy Rule
23(a)(1)'s numerosity requirement—specifically, that joinder is
not impractical because the putative class consists of individuals
already retained by her counsel. But numerosity is a fact-intensive
inquiry better suited for the class certification stage.
Unilever's motion to strike on the ground of numerosity is denied.
Unilever also seeks to strike Candelaria's claim for injunctive
class relief under Rule 23(b)(2), which seeks to compel Unilever to
stop selling TRESemme products containing DMDM.
Unilever asserts that this claim is foreclosed as a matter of law
by the Second Circuit.
Candelaria concedes that she will not seek certification for her
claim for injunctive relief because Unilever has already begun
phasing out DMDM in its TRESemme products.
The Court therefore grants Unilever's motion to strike the Rule
23(b)(2) allegations, which are contained in paragraph 63
of the Complaint.
The Plaintiff Candelaria brought this action on behalf of herself
and a putative class against Conopco, Inc. alleging that its
TRESemme shampoo caused her to lose her hair. She alleges defective
design, failure to warn, and negligence. Unilever moves to dismiss
Candelaria's claims under Federal Rule of Civil Procedure 12(b)(6)
and in the alternative to strike her class allegations under Rules
12(f) and 23(d)(1)(D).
The TRESemme products that Candelaria used allegedly contained
DMDM, a hydantoin compound used in cosmetics as a preservative.
DMDM acts as a "formaldehyde donor" that slowly releases
formaldehyde in order to prevent microbial growth and extend the
shelf life of cosmetics.
The Complaint alleges that DMDM has been shown by scientific and
medical studies to "cause dermatitis" and "increase the risk of
cosmetic dermatitis in patients allergic to formaldehyde."
Conopco offers perfumes, soaps, and shampoos, as well as food
products.
A copy of the Court's order dated Feb. 28, 2023 is available from
PacerMonitor.com at https://bit.ly/3Jxc4pC at no extra charge.[CC]
The Plaintiff is represented by:
Stephen J. Fearon, Jr., Esq.
Paul Sweeny, Esq.
SQUITIERI & FEARON, LLP
305 Broadway, 7th Floor
New York, NY 10007
The Defendants are represented by:
Reynold Lambert, Esq.
Gavin J. Rooney, Esq.
LOWENSTEIN SANDLER LLP
1251 Avenue of the Americas
New York, NY 10020
CORIZON HEALTH: Court Stays All Proceedings in Morrelli Suit
------------------------------------------------------------
In the class action lawsuit captioned as BRUCE MORRELLI, et al., v.
CORIZON HEALTH, INC., et al., Case No. 1:18-cv-01395-JLT-SAB (E.D.
Cal.), the Hon. Judge Stanley A. Boone entered an order staying all
proceedings in the case against the Corizon Health and vacating
March 22, 2023 hearing.
1. All proceedings in this matter against the Defendant
Corizon Health, Inc., have been stayed pursuant to 11
U.S.C. section 362(a); and
2. The hearing on the Plaintiffs' motion to amend and motion
for class certification, currently set for March 22, 2023,
is vacated, and the motions shall be held in abeyance
until the stay is lifted or further order of the Court.
The Plaintiff Morelli filed this putative class action on October
9, 2018. On February 15, 2023, the Defendant filed a notice of
bankruptcy proceedings indicating that on February 13, 2023, the
Defendant filed a voluntary petition pursuant to U.S.C. section
101-1532 in the United States Bankruptcy Court for the Southern
District of Texas, Houston Division, under Case
No. 23-90086 (CML).
Corizon is a privately held prison healthcare contractor in the
United States.
A copy of the Court's order dated March 1, 2023 is available from
PacerMonitor.com at https://bit.ly/3FgO3AG at no extra charge.[CC]
CORTEVA INC: Faces Bonin Suit Over Alleged Pesticides' Monopoly
---------------------------------------------------------------
PETER BONIN, individually and on behalf of all others similarly
situated, Plaintiff v. CORTEVA, INC.; SYNGENTA CROP PROTECTION AG;
SYNGENTA CORP.; and SYNGENTA CROP PROTECTION, LLC, Defendants, Case
No. 1:23-cv-00220 (M.D.N.C., March 10, 2023) alleges violation of
the Sherman Act.
According to the Plaintiff in the complaint that in order for
Defendants to maintain their market dominance even after their
patent and regulatory exclusivities on their crop protection
products ("CPPs") expired, the Defendants used "loyalty programs"
under which they made substantial payments to their wholesalers and
in certain cases, also retailers, in exchange for the wholesalers
and retailers agreeing to strictly limit their purchases of – and
thereby prevent widespread distribution of – generic versions of
the Defendants' CPPs, ensuring that Defendants' far more expensive
branded-CPPs would be most of what the wholesalers and retailers
purchased and sold to their respective customers, such as the
Plaintiff.
The Defendants' anticompetitive scheme has reduced competition in
the market for the CPPs and thereby artificially inflated the price
of those CPPs and of the generic competitors to those CPPs.
Plaintiff and members of the proposed Class have been injured by
paying artificially inflated prices for their CPP purchases, says
the suit.
CORTEVA, INC. provides agricultural products. The Company offers
seeds and crop protection products, as well as software solutions
and digital services. [BN]
The Plaintiff is represented by:
Joel Rhine, Esq.
Martin Ramey, Esq.
Ruth A. Sheehan, Esq.
RHINE LAW FIRM, P.C.
1612 Military Cutoff Road Suite 300
Wilmington, NC 28403
Telephone: (910) 772-9960
Facsimile: (910) 772-9062
Email: jrr@rhinelawfirm.com
mjr@rhinelawfirm.com
ras@rhinelawfirm.com
- and -
William M. Audet, Esq.
Ling Y. Kuang, Esq.
Kurt D. Kessler, Esq.
AUDET & PARTNERS, LLP
711 Van Ness, Suite 500
San Francisco, CA 94102-3229
Telephone: (415) 568-2555
Email: waudet@audetlaw.com
lkuang@audetlaw.com
kkessler@audetlaw.com
CRST INTERNATIONAL: Court Issues Final Judgment in Markson Suit
---------------------------------------------------------------
Judge Stanley Blumenfeld, Jr., of the U.S. District Court for the
Central District of California issued a Final Judgment as to the
Settling Defendants in the lawsuit entitled CURTIS MARKSON, MARK
McGEORGE, CLOIS McCLENDON, and ERIC CLARK, individuals on behalf of
themselves and all others similarly situated, Plaintiffs v. CRST
INTERNATIONAL, INC.; CRST EXPEDITED, INC.; C.R. ENGLAND, INC.;
WESTERN EXPRESS, INC.; SCHNEIDER NATIONAL CARRIERS, INC.; SOUTHERN
REFRIGERATED TRANSPORT, INC.; COVENANT TRANSPORT, INC.; PASCHALL
TRUCK LINES, INC.; STEVENS TRANSPORT, INC.; and DOES 1 TO 10,
Defendants, Case No. 5:17-cv-01261-SB (SPx) (C.D. Cal.).
The Court has granted final approval of the Class Action
Settlements between Plaintiffs Curtis Markson, Mark McGeorge, Clois
McClendon and Eric Clark, and Defendants CRST International, Inc.,
CRST Expedited, Inc., and C.R. England, Inc. (Settling Defendants,
and together with the Plaintiffs, the Settling Parties).
The Final Judgment incorporates by reference the definitions in the
Order Granting Motion for Final Approval of Class Action Settlement
Agreement and Partially Granting Motion for Attorneys' Fees and
Costs (the Final Approval Order) and in the Settlement Agreement
between the Plaintiffs and C.R. England, Inc. (the CRE Settlement),
and the Settlement Agreement between the Plaintiffs and CRST
International, Inc. and CRST Expedited, Inc. (the CRST Settlement,
and together with the CRE Settlement, the Settlements).
All Settlement Class Members, except those who requested exclusion,
are bound by the Final Approval Order and this Final Judgment as to
the Settling Defendants. The Classes consist of the CRE Settlement
Class, the CRST Antitrust Subclass, and the CRST Labor Code
Subclass.
The CRE Settlement Class is defined as: All current and former
drivers 'Under Contract' as motor vehicle carrier drivers with CRST
International, Inc., CRST Expedited, Inc., C.R. England, Inc.,
Western Express, Inc., Schneider National Carriers, Inc., Southern
Refrigerated Transport, Inc., Covenant Transport, Inc., Paschall
Truck Lines, Inc., and Stevens Transport, Inc., at any time from
May 15, 2013 through April 1, 2022. The phrase Under Contract is
defined to mean: [I]ndividuals who executed an agreement with a
Defendant in which the person agreed, and became obligated to work,
for that Defendant for a specified period of time in return for a
commercial driver's license education or other training provided
by, funded by, or reimbursed by that Defendant and who was employed
by that Defendant pursuant to that agreement at any time between
May 15, 2013 and April 1, 2022.
The CRST Antitrust Subclass is defined as all current and former
drivers Under Contract as motor vehicle carrier drivers with CRST,
C.R. England, Western Express, Inc., Schneider National Carriers,
Inc., Southern Refrigerated Transport, Inc., Covenant Transport,
Inc., Paschall Truck Lines, Inc., or Stevens Transport, Inc., at
any time from May 15, 2013, through April 1, 2022. The phrase Under
Contract is defined to mean all natural persons in the United
States who executed an agreement with any Defendant in which the
person agreed to work for any Defendant for a specified period of
time in return for training provided by, funded by, or reimbursed
by that Defendant and who was employed by that Defendant between
May 15, 2013 through April 1, 2022.
The CRST Labor Code Subclass is defined as: All persons who (1)
signed a Pre-Employment Driver Training Agreement and/or Driver
Employment Contract with the CRST Defendants, (2) participated in
the CRST Defendants' Driver Training Program in California, and (3)
were charged for their DOT physical, DOT drug screening,
administrative fees, and/or a contract fee after failing to
complete their contractually required 8- to 10-month employment
term, at any time between May 15, 2013 through April 1, 2022.
The following individuals have timely and validly requested
exclusion from the Settlements and the Settlement Classes and are,
therefore, not bound by this final judgment: Hailiegh L. Pinske,
Aaron Pinske, Mothana Hussein, Leng David, Ruben Casarez, Sabrina
Fordyce, Mekonnen Kebede, Donta Hines, Cheryl Johnson, Ryan
Helling, Otis Dean, Patrick Murphy, Syed Uzair, Brian Swain, and
Carlos Udave.
For settlement purposes, the Court finds that Federal Rule of Civil
Procedure Rule 23 has been satisfied. The Court finds that, for
settlement purposes, the Plaintiffs have satisfied the requirements
of Rule 23(a) and (b)(3).
The terms of the Settlements and this Final Judgment as to the
Settling Defendants are binding on the Plaintiffs and all other
Settlement Class Members (except for the 15 individuals who timely
excluded themselves from the Settlements and the Settlement
Classes), as well as their heirs, executors and administrators,
successors, and assigns. All remaining Settlement Class Members are
bound by the Release of Defendants as set forth in the
Settlements.
In accordance with the Final Approval Order, the Court approves the
Settlements, including attorneys' fees of 25% of the total
$2,125,000 settlement amount (i.e., $531,250), litigation costs in
the total amount of $473,629.87; service awards in the amount of
$1,500 to each of the four named Plaintiffs; settlement
administration costs in the amount of $303,500; and the LWDA's
share of the allocated PAGA penalties in the amount of $37,500.
The Court orders the Settlement Administrator to distribute the
individual settlement amounts to the participating Class Members in
accordance with the provisions of the Settlement Agreements.
The Court finds that all of the notice requirements of Class Action
Fairness Act (CAFA) set forth in 28 U.S.C. Section 1715 have been
satisfied. Defendants CRST International, Inc. and CRST Expedited,
Inc. promulgated the notice required by CAFA on Nov. 4, 2022;
Defendant C.R. England, Inc. promulgated the notice required by
CAFA on Nov. 2, 2022.
Any checks paid to Settlement Class Members will advise that they
will remain valid and negotiable for 180 calendar days from the
date of their issuance and may thereafter automatically be canceled
if not cashed by a Settlement Class Member within that time, at
which time the Settlement Class Member's check will be deemed void
and have no further force and effect. Any Settlement Class Member's
failure to negotiate and/or cash any such check will not abrogate
or affect that Settlement Class Member's releases pursuant to the
Settlements. The funds associated with any checks which are not
timely negotiated will be paid to an appropriate cy pres
beneficiary.
Following entry of this Final Judgment, the Court will dismiss the
Settling Defendants from this action with prejudice. Although the
Settling Defendants will be dismissed from this action with
prejudice, the Court will maintain continuing jurisdiction over the
Settling Defendants and the settlement funds for purposes of
enforcing the terms of the Settlements, the Final Approval Order,
and this Final Judgment, and/or making further orders regarding the
disbursal of funds associated with uncashed settlement checks,
notwithstanding the entry of the dismissal order and final
judgment.
Final Judgment is entered on the Settlements as to the Settling
Defendants. Without affecting the finality of this final approval
order and final judgment in any way, the Court retains continuing
jurisdiction over the interpretation, implementation and
enforcement of the Settlement, the Settlement Agreements, and all
orders and judgments entered in connection therewith.
The Court further finds, under Federal Rule of Civil Procedure
54(b), that there is no just reason for delay and, therefore,
directs that the dismissal of Defendants C.R. England, Inc., CRST
International, Inc., and CRST Expedited, Inc., will be final.
Notwithstanding the dismissal of the Settling Defendants, the Court
retains continuing jurisdiction over the Plaintiffs and the
Settling Defendants and the settlement funds for purposes of
effectuating the Settlement Agreements and distributing the
settlement fund.
After settlement administration has been completed in accordance
with the Settlement Agreements, and in no event later than Nov. 30,
2023 (i.e., after the date on which all individual settlement funds
have been mailed to the Class Members, and the check-cashing
deadline has expired), the Plaintiffs will file a report with the
Court certifying compliance with the terms of each respective
Settlement Agreement, and proposing appropriate actions to be taken
for any remaining funds due to uncashed settlement checks.
A full-text copy of the Court's Order dated Feb. 23, 2023, is
available at https://tinyurl.com/px6mm7x5 from Leagle.com.
DAXI SICHUAN: Bid for Attorney's Fees Granted in Part
-----------------------------------------------------
In the class action lawsuit captioned as ZHONGZHI ZANG, on his own
behalf and on behalf of others similarly situated, XIN LI, GUOXING
HUANG, v. DAXI SICHUAN, INC, doing business as Daxi Sichuan, SHIHAI
LIU, HUI FANG, Case No. 1:18-cv-06910-DG-SJB (E.D.N.Y.), the Hon.
Judge Sanket J. Bulsara entered an order granting in part and
denying in part the motion for attorney's fees.
-- The Court awards the Fee Applicants $22,172 in attorney's
fees and $713.21 in costs.
-- There is no receipt, invoice, or other documentation
indicating the cost to serve the Defendants was $175.
The Court therefore declines to award $175 in service
costs.
Though the Fee Applicants did not submit a receipt for the
mediator's fee, it is undisputed that the parties were referred to
the EDNY Mediation Panel and did, in fact, participate in
mediation.
Zhongzhi Zang and Guoxing Huang (together, the "Fee Applicants")
have filed a motion seeking attorney's fees and costs.
Zang brought this action individually and on behalf of a putative
collective against Daxi Sichuan, Inc. and Shihai Liu, alleging
violations of the Fair Labor Standards Act ("FLSA"), New York Labor
Law ("NYLL"), and New York Codes, Rules and Regulations ("NYCRR").
A copy of the Court's order dated March 1, 2023 is available from
PacerMonitor.com at https://bit.ly/3mKtfem at no extra charge.[CC]
DEL-AIR HEATING: Suit Seeks to Certify Class of ESOP Participants
-----------------------------------------------------------------
In the class action lawsuit captioned as WILTRON DIAZ, JERRY
RAYMOND, ANGEL SOTO, THOMAS CANNETTI and BLAINE IFILL, v. DEL-AIR
HEATING, AIR CONDITIONING AND REFRIGERATION, INC., Case No.
6:22-cv-02157-CEM-DCI (M.D. Fla.), the Plaintiffs ask the Court to
enter an order certifying the case as a class action pursuant to
Fed. R. Civ. P. 23 on behalf of the following Class:
"All participants in the Del-Air Heating, Air Conditioning
and Refrigeration, Inc., Employee Stock Ownership Plan (the
"ESOP" or "Plan") effective January 1, 2005 or any time
thereafter who vested under the terms of the Plan and those
participants' beneficiaries."
First, due to the required unitary resolution of the questions in
this litigation, class members do not have an individual interest
in controlling the action.
Second, there is no other litigation involving these claims.
Third, as the Defendant's operations are headquartered in and the
Plan is administered in this District and numerous class members
are in this District, this forum is a desirable.
Fourth, there are no known difficulties in managing this case as a
class action.
Finally, a class action is a superior because this action would
resolve numerous identical claims without the need for duplicative
discovery and judicial process. Thus, the superiority requirement
is met.
The case is an Employment Retirement Income Security Act of 1974
(ERISA) action challenging fiduciary breaches and other violations
arising out of the October 2022 majority share Purchase Transaction
of the the Defendant to Astara Capital Partners, Fund I, L.P.
The Class consists of all vested participants in the ESOP and their
beneficiaries (except those excluded).
The Plaintiffs brought this action pursuant to the ERISA, on behalf
of current and former employee participants in the Del-Air Heating,
Air Conditioning and Refrigeration, Inc. ESOP.
On Friday October 21, 2022, the Defendant held a companywide
meeting with all employees to announce that the Board of Directors
had decided to sell the majority shareholder's interest in the
company to Astara.
The Defendant told all employees that the vote would take place in
six days on Thursday, October 27, 2022 and announced that all
employees would receive a notice via email and regular mail with a
ballot to vote either for or against the sale.
Through the Purchase Transaction, the ESOP Participants lost their
actual direct ownership of the Defendant through its stock and the
stock was replaced so that Participants would have an indirect
ownership through owning stock of Astara.
Now, instead of owning stock in the company where they worked, they
owned stock of a foreign company for which the employees were not
employed and Participants have no ability to vote on any activities
of Astara.
A copy of the the Plaintiffs' motion dated March 1, 2023 is
available from PacerMonitor.com at https://bit.ly/420woa9 at no
extra charge.[CC]
The Plaintiffs are represented by:
Richard W. Smith, Esq.
John W. Zielinski, Esq.
NEJAME LAW, P.A.
189 South Orange Avenue, Ste. 1800
Orlando, FL 32801
Telephone: (407) 500-0000
Facsimile: (407) 802-1431
Primary: john@nejamelaw.com
Secondary: courtnay@nejamelaw.com
civilservice@nejamelaw.com
DOWN UNDER: Fails to Pay Proper Wages, Bado Suit Alleges
--------------------------------------------------------
DOUGLAS BADO, individually and on behalf of all other similarly
situated, Plaintiff v. DOWN UNDER, INC. d/b/a BRAVO BRAVO, INC.
d/b/a BRAVO BRAVO; EDGAR URIONA VEIZAGA; and TATIANA CRUZ,
Defendants, Case No. 1:23-cv-00652 (D. Col., March 9, 2023) alleges
Defendants' alleged unlawful conduct by failing to pay proper to
Plaintiff and similarly situated employees.
Plaintiff Bado was employed by the Defendants as bartender.
DOWN UNDER, INC. owns and operates Bravo Bravo, a nightclub located
at Connecticut Avenue, NW, Washington, D.C. [BN]
The Plaintiff is represented by:
Ryan McCarthy, Esq.
James E. Goodley, Esq.
GOODLEY MCCARTHY LLC
1650 Market Street, Suite 3600
Philadelphia, PA 19103
Telephone: (215) 394-0541
Email: james@gmlaborlaw.com
ryan@gmlaborlaw.com
EMBASSY HEALTHCARE: Fails to Pay Proper Wages, Barker Alleges
-------------------------------------------------------------
DIANNA BARKER, individually and on behalf of all others similarly
situated, Plaintiff v. EMBASSY HEALTHCARE MANAGEMENT INC.; EMBASSY
HEALTHCARE, INC.; and EMBASSY EUCLID, LLC, Defendants, Case No.
1:23-cv-00472 (N.D. Ohio., March 9, 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 Barker was employed by the Defendants as assistant
director of nursing.
EMBASSY HEALTHCARE MANAGEMENT INC. manages a variety of assisted
living, adult day care, skilled nursing, and rehabilitation
facilities. [BN]
The Plaintiff is represented by:
Robi J. Baishnab, Esq.
NILGES DRAHER LLC
1360 E. 9th Street, Suite 808
Cleveland, OH 44114
Telephone: (216) 230-2955
Facsimile: (330) 754-1430
Email: rbaishnab@ohlaborlaw.com
- and –
Shannon M. Draher, Esq.
NILGES DRAHER LLC
7034 Braucher St NW, Suite B
North Canton, OH 44720
Telephone: (330) 470-4428
Facsimile: (330) 754-1430
Email: sdraher@ohlaborlaw.com
EPLUS INC: Kent Shareholder Suit Dismissed
------------------------------------------
ePlus 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 7, 2023, that on February 25, 2022,
a putative class action complaint was filed in the Delaware court
of Chancery by Michael Kent, a stockholder, against the company and
the company's then-current directors.
The complaint sought a declaration that Section 2.9 of the
company's then-bylaws violated Section 228 of the Delaware General
Corporation Law because, as alleged in the complaint, the bylaw
provision restricted the ability of the company's stockholders to
act by written consent unless the Board of Directors provided prior
approval for such stockholder action.
On April 8, 2022, the court of Chancery entered a stipulated order
pursuant to which the plaintiff voluntarily dismissed the Action.
The dismissal was without prejudice with regard to the anticipated
application of plaintiff's counsel's claim for attorneys' fees and
expenses.
ePlus Inc. Is a solutions provider in the areas of security, cloud,
networking, data center, collaboration and emerging technologies
based in Virginia.
EQUIFAX INFORMATION: Denial of Bid to Toss Arbitration Award Upheld
-------------------------------------------------------------------
The United States Court of Appeals for the Ninth Circuit affirms
the district court's denial of Charles Juntikka's motion to vacate
an arbitration award in the lawsuit styled 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.).
Counsel Charles Juntikka appeals the district court's denial of his
motion to vacate an arbitration award that allocated attorneys'
fees among class counsel from a class action against three
credit-reporting companies. Juntikka 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 Court of Appeals 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 Court'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 (Major League
Baseball, 532 U.S. at 509) and, therefore, did not exceed her
powers in violation of Section 10(a)(4), the Court of Appeals
opines.
According to the Court of Appeals, 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.
Affirmed.
A full-text copy of the Court's Memorandum dated Feb. 23, 2023, is
available at https://tinyurl.com/2p82x987 from Leagle.com.
FAMILY SERVICE: Fails to Pay Overtime Wages, Canter Alleges
-----------------------------------------------------------
RICHARD CANTER; and KELLY BASILIO, individually and on behalf of
all others similarly situated, Plaintiffs v. FAMILY SERVICE
PROVIDERS, LLC, Defendant, Case No. 2:23-cv-00923-ALM-EPD (S.D.
Ohio, March 9, 2023) is an action against the Defendant's failure
to pay the Plaintiff and the class overtime compensation for hours
worked in excess of 40 hours per week.
The Plaintiffs were employed by the Defendant as home health
aides.
FAMILY SERVICE PROVIDERS, LLC is a provider of nursing care and
home care in Columbus, OH. [BN]
The Plaintiffs are represented by:
Peter Contreras, Esq.
CONTRERAS LAW, LLC
1550 Old Henderson Road Suite 126
Columbus, OH 43220
Telephone: (614) 787-4878
Facsimile: (614) 957-7515
Email: peter.contreras@contrerasfirm.com
FCA US: $126K Award of Attorneys' Fees in Tomassini Suit Affirmed
-----------------------------------------------------------------
In the case, ROBERT TOMASSINI, on behalf of himself and all others
similarly situated, Plaintiff-Appellee v. FCA US LLC, FKA CHRYSLER
GROUP LLC, Defendant-Appellant, Case No. 21-2785-cv (2d Cir.), the
U.S. Court of Appeals for the Second Circuit affirms the orders of
the U.S. District Court for the Northern District of New York
(D'Agostino, J.) granting Tomassini's motion for attorneys' fees in
the amount of $125,882.78, and denying FCA's motion for
reconsideration.
Tomassini commenced the putative class action in 2014, seeking
damages under New York law for deceptive business practices
pursuant to Section 349 of New York General Business Law and breach
of express warranty on behalf of a class of New York residents who
purchased certain Chrysler and Dodge minivans with allegedly
defective tire valves that easily corroded when exposed to road
salt.
In 2018 the District Court denied Tomassini's motion for class
certification.
On Sept. 10, 2020, Tomassini accepted FCA's offer of judgment on
his individual claim pursuant to Rule 68 of the Federal Rules of
Civil Procedure. On Sept. 16, 2020, in accordance with the offer,
the District Court entered judgment in Tomassini's favor in the
amount of $2,000, plus (1) payment of taxable costs related to the
prosecution of his individual claims, and (2) reasonable attorney
fees related to the prosecution of his individual claims (only).
Thereafter, Tomassini moved for a reimbursement of $151,525.56 in
attorneys' fees. He explained that the requested amount was
calculated by isolating time related solely to the merits of his
claim after his attorneys exercised considerable billing discretion
and reduced their requested hours by 35% to account for time spent
on fact and expert discovery that may have benefited other
plaintiffs.
The District Court reviewed the billing records and identified
specific time entries where the work related either solely to class
issues or involved a combination of class and individual issues, or
where Tomassini's description failed to provide sufficient
information to determine whether the work involved class issues.
Out of the 775.65 hours submitted for reimbursement, the District
Court identified 363.9 hours that were not compensable for the
reasons identified. Accordingly, it cut by 46% the number of hours
counsel submitted, resulting in a final award of $125,882.78 in
attorneys' fees.
Upon de novo review, the Second Circuit concludes that the District
Court properly interpreted the terms of the offer of judgment. And
substantially for the reasons stated in the District Court's orders
entered March 26, 2021 and Oct. 15, 2021, it concludes that the
award of attorneys' fees was reasonable and consistent with the
offer of judgment and therefore not an abuse of discretion.
Urging a contrary conclusion on appeal, FCA primarily argues that
the District Court erred by reducing counsel's hours on a
percentage basis instead of segregating and then excluding
non-compensable time from the fee application. In light of the
district court's superior understanding of the litigation, the
Second Circuit finds no abuse of discretion in the District Court's
method of reducing counsel's fees.
FCA also contends that the District Court should have considered
whether the total award was reasonably proportional to Tomassini's
relatively small individual recovery and the amount involved in the
litigation. The Second Circuit interprets the offer of judgment in
light of the fee shifting provision of GBL Section 349. Absent an
explicit limit on attorneys' fees or a proportionality requirement,
it holds that the District Court did not abuse its discretion when
it determined that the fee was reasonable in light of the
protracted nature of the litigation.
The Second Circuit has considered FCA's remaining arguments and
concludes that they are without merit. For the foregoing reasons,
the judgment of the District Court is affirmed.
A full-text copy of the Court's Feb. 24, 2023 Summary Order is
available at https://tinyurl.com/3bpttdty from Leagle.com.
STEPHEN A. D'AUNOY -- sdaunoy@thompsoncoburn.com -- (Kathy Ann
Wisniewski -- kwisniewski@thompsoncoburn.com -- on the brief),
Thompson Coburn LLP, St, Louis, MO, for the Defendant-Appellant.
ELMER ROBERT KEACH, III -- bobkeach@keachlawfirm.com -- Law Offices
of Elmer Robert Keach, III, Albany, NY (Nicholas Migliaccio --
nmigliaccio@classlawdc.com -- Migliaccio and Rathod LLP,
Washington, DC, on the brief), for the Plaintiff-Appellee.
FCA US: Bid to Dismiss Wilson Cass Action Tossed
------------------------------------------------
In the class action lawsuit captioned as JASON WILSON, et al.,
individually, and on behalf of all others similarly situated, v.
FCA US LLC and STELLANTIS N.V., Case No. 4:22-cv-00447-ALM (E.D.
Tex.), the Hon. Judge Amos L. Mazzant entered an order denying the
FCA's motion to dismiss the Plaintiffs' class action complaint.
After a careful review of the complaint and the arguments presented
in the pending motion, the Court finds that the substantive issues
raised are better suited for the class certification stage. Wilson
has properly satisfied the relevant standards by stating plausible
claims against FCA US upon which relief could be granted.
Accordingly, the pending motion to dismiss should be denied.
The case arises out of an alleged defect of the 2017–18 Ram 2500
and 3500 vehicles ("Class Vehicles"). Specifically, the Plaintiffs
Jason Wilson, Patrick Krenek, and Donald Akridge allege that the
Class Vehicles contain "dangerous and defective" hydraulic control
units and anti-lock braking system ("ABS") modules because of
defective materials used, and as a result, these defects cause the
ABS, cruise control, and traction control systems to become
inoperable to the driver.
On May 26, 2022, Wilson filed this putative class action lawsuit
against the Defendants FCA US LLC and Stellantis N.V.
(collectively, "FCA US"), seeking to certify a class action on
behalf of themselves and other Texas residents who have purchased
or leased the Class Vehicles in the United States and its
territories.
Wilson asserts the following three claims:
(1) breach of the implied warranty of merchantability;
(2) fraud, specifically through a theory of omission-based
fraud; and
(3) unjust enrichment.
On July 22, 2022, FCA US filed the pending motion, requesting the
Court to dismiss all three of Wilson's claims under Rule. On August
19, 2022, Wilson filed a response. On September 2, 2022, FCA US
filed its reply.
FCA US LLC designs, engineers, manufactures, and sells vehicles.
The Company offers passenger cars, utility vehicles, mini-vans,
trucks and commercial vans.
A copy of the Court's order dated March 2, 2023 is available from
PacerMonitor.com at https://bit.ly/425a531 at no extra charge.[CC]
FLETCHER BUILDING: Investors Suit Alleges Breaches of Disclosures
-----------------------------------------------------------------
rnz.co.nz reports that Fletcher Building is being sued by a group
of investors for alleged breaches of disclosures about the state of
its business more than five years ago.
An Australian law firm has lodged a shareholder class action in the
Supreme Court of Victoria, the company said in a statement.
The persons who acquired Fletcher Building shares on the New
Zealand and the Australian stock exchanges between mid-August 2016
and late October 2017 were taking the action, it said.
"[It] relates to Fletcher Building's disclosures regarding its
Building and Interiors business in that period," it said.
"FBL (Fletcher Building Ltd) intends to defend the proceedings."
The company declined to make any other comment.
During the period specified Fletcher Building disclosed major
losses of more than $400 million in the building and interiors
division, principally from the Christchurch Justice Precinct and
the International Convention Centre in Auckland.
The large losses and wisdom of some acquisitions led to the sacking
of chief executive Mark Adamson and a shareholder backlash against
the board, resulting in the resignation of Fletcher Building chair
Sir Ralph Norris.
Specialist Australian law firms have been active in organising
class actions suits for alleged breaches of disclosure rules, which
require stock exchange listed companies to reveal any information
about the health of their business as soon as possible.
Infant formula company A2 Milk was subject of a similar lawsuit on
both sides of the Tasman. [GN]
FORD MOTOR: Bid to Deny Class Certification Stricken in Rathmann
----------------------------------------------------------------
In the class action lawsuit captioned as DAVID RATHMANN,
individually, and on behalf of a class of similarly situated
individuals, v. FORD MOTOR CO., Case No. 6:21-cv-00610-ADA-JCM
(W.D. Tex.), the Hon. Judge Alan D Albright entered an order
overruling the Defendant's Objection, adopting the Magistrate
Judge's Order, and granting the Plaintiff's motion to strike the
Defendant's motion to deny class certification.
The Magistrate Judge previously entered an Order, which granted the
Plaintiff David Rathmann's Motion to Strike the Defendant Ford
Motor Co.'s Motion to Deny Class Certification.
On the Defendant has now filed Objections to that Order. The
Plaintiff filed a response to the Defendant's Objections. The
Defendant filed a reply in support of its Objections.
Ford Motor is an American multinational automobile manufacturer
headquartered in Dearborn, Michigan.
A copy of the Court's order dated March 1, 2023 is available from
PacerMonitor.com at https://bit.ly/3mBqJqA at no extra charge.[CC]
FORD MOTOR: O'Connor Can't Amend Complaint, N.D. Illinois Rules
---------------------------------------------------------------
Judge Elaine E. Bucklo of the U.S. District Court for the Northern
District of Illinois, Eastern Division, denies the Plaintiffs'
motion for leave to amend their complaint in the lawsuit titled
Justin O'Connor, et al., on behalf of himself and all others
similarly situated Plaintiffs v. Ford Motor Company, Defendant,
Case No. 19 C 5045 (N.D. Ill.).
In this consolidated class action, the Plaintiffs seek damages from
the Defendant based on Ford's alleged sale and lease of 2017 to
2020 Model Year Ford F-150 trucks with defective 10R80 10-speed
automatic transmissions.
The Consolidated Amended Complaint ("CAC")--the operative complaint
here--was filed on Sept. 25, 2020. Ford's motion to dismiss the CAC
was granted in part and denied in part by Judge Robert M. Dow, Jr.,
on Sept. 30, 2021. Since shortly after that order, the parties have
been engaged in discovery.
Fact discovery was originally scheduled to close on Sept. 14, 2022,
but the Plaintiffs secured an extension of that date to Jan. 12,
2023. On Dec. 13, 2022, with less than one month until the close of
fact discovery, the Plaintiffs filed the present motion for leave
to amend their complaint, attaching a proposed Second Consolidated
Amended Complaint ("Proposed SCAC"). The proposed amendment expands
the putative class vehicles to include 2018-2023 Ford Expeditions,
Ford Mustangs and Lincoln Navigators; 2019-2023 Ford Rangers; and
2021-2023 Ford F-150s.
Starting with timeliness, Judge Bucklo notes that the case has been
ongoing for years and the Plaintiffs filed their motion with less
than one month until the close of discovery. Additionally, Ford
contends that the information on which the Plaintiffs premise their
requested amendment was known or available to them well before they
filed their motion.
The Plaintiffs maintain that they filed the motion as soon as
practicable, in light of growing evidence they obtained over the
course of discovery. That evidence includes: (1) National Highway
Traffic Safety Administration ("NHTSA") complaints, (2) recent
Technical Service Bulletins ("TSBs") issued by Ford, and (3)
documents produced by Ford.
Ford observes that the NHTSA complaints and TSBs were available to
the Plaintiffs long before they sought leave to amend. For
starters, the NHTSA complaints that the Plaintiffs reference in the
Proposed SCAC are publicly available documents--a fact that the
Plaintiffs do not dispute and that Ford supports by providing an
example of one of the complaints on NHTSA's website.
Of the thirty new NHTSA complaints referenced in the Proposed SCAC,
six are dated November 2022; the rest are dated earlier. Indeed,
for two of the models the Plaintiffs seek to include as class
vehicles--the Ford Mustang and Lincoln Navigator--the latest NHTSA
complaints they reference in the Proposed SCAC are dated Oct. 27,
2021, and March 21, 2022, respectively.
TSBs are similarly publicly available, and the only new ones the
Plaintiffs cite in the Proposed SCAC were issued on Sept. 27, 2021,
and April 21, 2022. Additionally, one of those TSBs was part of a
document production that plaintiffs received on Feb. 17, 2022, and
the other one was referenced by the Plaintiffs in a Rule 30(b)(6)
notice on Oct. 12, 2022. The Plaintiffs do not dispute these
points.
In addition to NHTSA complaints and TSBs, the Plaintiffs state that
"documents produced by Ford" constituted the remainder of the
"growing evidence" necessitating amendment. Ford faults the
Plaintiffs for not discussing any specific documents in their
opening brief because that prevents Ford from discussing whether
those documents justify the timing of their motion. In their reply
brief, the Plaintiffs cite to six specific documents that, in their
view, represent the kinds of documents received during discovery
that motivated them to seek amendment.
Ford moves to strike these documents because they were identified
for the first time in the Plaintiffs' reply brief. The Plaintiffs
respond by arguing that, as an initial matter, they had no
obligation to submit evidence as part of their motion. While true
that evidence is not required to support the merits of a proposed
amendment, where there has been a delay, a plaintiff must provide
an explanation as to why amendment did not take place sooner. As
explained, Judge Bucklo holds, the NHTSA complaints and TSBs alone
do not justify a December 2022 motion to amend, and the vague
reference to "documents produced by Ford" does not do the job
either.
Judge Bucklo says the Plaintiffs' attempt to offer this evidence in
their reply brief is inappropriate because it prevents Ford from
addressing the specifics of that evidence. Judge Bucklo will,
therefore, grant Ford's motion to strike these materials.
Even were she to consider the documents cited in the Plaintiffs'
reply, it would not help them, Judge Bucklo holds. Most of these
documents were in their hands well before they sought leave to
amend, and they accordingly do not justify the delay. Ford asserts,
and the Plaintiffs do not dispute, that five of the six documents
were produced by Ford between July 22, 2022, and Aug. 5, 2022.
Instead of addressing this delay, the Plaintiffs rest on the
assertion that they moved for leave to amend as soon as practicable
and that they needed to look at the totality of discovery to
determine whether amendment was appropriate. But if that were
sufficient, then litigants could wait until the eve of the close of
discovery before seeking amendment, claiming they sought the
benefit of additional discovery, even if they had the information
they needed earlier, Judge Bucklo points out.
Other than this unsatisfactory explanation, Judge Bucklo notes,
among other things, that the Plaintiffs do not offer any reason why
despite receiving these documents by Aug. 5, 2022, they did not
seek leave to amend until Dec. 13, 2022; nor do the Plaintiffs give
reason to think the sixth document, which was produced on Nov. 18,
2022, tipped the balance toward seeking amendment.
Judge Bucklo holds that the amendment the Plaintiffs seek would
unduly prejudice Ford because it would require substantial
additional discovery, including possible repeat depositions of
several witnesses. Had the Plaintiffs amended earlier, this extra
discovery could have been folded into the ongoing discovery related
to the 2017-2020 Ford F-150s. Now, however, the Plaintiffs
anticipate 180 days of additional fact discovery if the motion is
granted.
Rather than arguing that amendment would not prejudice Ford, the
Plaintiffs argue instead that allowing amendment is simply the
least prejudicial of the available options. That is because, in the
Plaintiffs' view, if they cannot amend now, a separate action
regarding the additional models will need to be filed, which would
involve duplicative discovery and other inefficiencies.
Setting aside that it is uncertain whether a separate action would
be filed and that Ford has apparently considered this possibility
and concluded that potential burden on it is outweighed by the
burden of amendment in this action, Judge Bucklo finds this
argument unavailing. Here, there is no concern that denying the
Plaintiffs' amendment would affect the current putative class
members' case; the only issue is whether there may be a separate
action for the additional models and years.
Because she finds that the Plaintiffs' motion for leave to amend
should be denied as untimely and unduly prejudicial, Judge Bucklo
does not discuss the parties' arguments regarding whether amendment
would be futile or would violate the stay as to the claims of
Dougherty and McDonald.
For these reasons, Judge Bucklo denies the Plaintiffs' motion for
leave to amend. Ford's motion to strike is granted.
A full-text copy of the Court's Memorandum Opinion & Order dated
Feb. 23, 2023, is available at https://tinyurl.com/ppufb2fv from
Leagle.com.
FURNISHARE INC: Genao Sues Over Failure to Pay Weekly Wages
-----------------------------------------------------------
Oliver Genao, on behalf of himself and on behalf of all others
similarly situated v. Furnishare Inc., Case No. 651254/2023 (N.Y.
Sup. Ct., New York Cty., March 9, 2023), is brought for damages and
other legal and equitable relief against the Defendant for
violations of New York State Labor Law ("NYLL"), the New York Code
of Rules and Regulations ("NYCRR"), The New York Wage Theft
Prevention Act by failing to pay weekly wages.
The Defendant paid Plaintiff on a bi-weekly basis. This pattern of
conduct was continuous throughout Plaintiff's employment. Because
of Defendant's improper compensation policies, Plaintiff was
deprived of timely and weekly pay, in direct violation of the NYLL.
The Plaintiff suffered actual and acute injuries as a result of the
Defendant's failure to pay weekly wages. The timely payment of
earned wages were and are crucial to Genao's ability to pay day to
day and monthly expenses, especially due to the New York area's
high cost of living. The Defendant's conduct in paying Genao's
wages late throughout his employment resulted in him having to pay
bills late on more than one occasion, says the complaint.
The Plaintiff worked for the Defendant from December 2017 until
April 2021, primarily in New York County.
Furnishare, Inc. operates a secondhand furniture business where its
customers buy and sell furniture in New York State.[BN]
The Plaintiff is represented by:
Mohammed Gangat, Esq.
LAW OFFICE OF MOHAMMED GANGAT
675 Third Avenue, Suite 1810,
New York, NY 10017
Phone: 718-669-0714
Email: mgangat@gangatpllc.com
- and -
Owen Keough, Esq.
LAW OFFICE OF MOHAMMED GANGAT
675 Third Avenue, Suite 1810,
New York, NY 10017
Phone: 914-916-2453
Email: owen@lawverforworkers.com
GATE GOURMET: $3.85-Mil. Settlement in Rahman Suit Has Final Nod
----------------------------------------------------------------
Judge William H. Orrick of the U.S. District Court for the Northern
District of California issued an order granting final settlement
approval and motion for attorney fees and costs in the lawsuit
styled MOHAMMED RAHMAN, et al., Plaintiffs v. GATE GOURMET, INC.,
et al., Defendants, Case No. 20-cv-03047-WHO (N.D. Cal.).
The unopposed Motion for Class Action and PAGA Settlement and
Administration Costs, filed by Plaintiffs Mohammed Rahman
(deceased), Alicia Noemi Bautista Diaz, and Pascal Moore came on
for hearing on Feb. 22, 2023.
Judge Orrick notes that this Judgment incorporates by reference the
definitions in the Class Action and Private Attorneys General Act
Settlement Agreement and Release (the "Settlement Agreement" or the
"Settlement," attached as Exhibit 1 to the Declaration of Hallie
Von Rock in Support of Plaintiffs' Motion for Preliminary Approval
of Class Action and PAGA Representative Settlement).
Class Members and Aggrieved Employees mean all individuals employed
at any Gate Gourmet facility in California as a non-exempt employee
at any time from May 4, 2016, through Oct. 3, 2022 (the date of the
preliminary approval of the settlement by the Court). The
Settlement Class Period is from May 4, 2016 through Oct. 3, 2022.
Pursuant to Federal Rule of Civil Procedure 23(c)(3), all such
persons or entities, who satisfy the Class definition, are Class
Members bound by this Judgment.
The Court directed that notice be given to Class Members by mail
and electronic mail pursuant to the notice process proposed by the
Parties in the Settlement and approved by the Court. The
declaration from Atticus Administration ("Atticus"), attesting to
the dissemination of the notice to the Class, demonstrates
compliance with this Court's Preliminary Approval Order.
Pursuant to Federal Rule of Civil Procedure 23(e)(2), the Court
finds after a hearing and based upon all submissions of the Parties
and other persons that the Settlement proposed by the Parties is
fair, reasonable, and adequate. The terms and provisions of the
Settlement are the product of arms-length negotiations conducted in
good faith and with the assistance of an experienced mediator,
Hunter Hughes, III, Esq. There were no objections to the Settlement
and approval of the Settlement will result in substantial savings
of time, money and effort to the Court and the Parties, and will
further the interests of justice.
Claims administrator Atticus Administration is entitled to $31,893,
as estimated, for settlement administration to be paid out of the
Settlement Fund. If the reasonable costs of administration exceed
that estimation, Atticus may ask the Court to award a higher
amount.
The Plaintiffs' motion for an award of attorney fees is granted.
The Court finds that an award exceeding the 25% benchmark is
justified, and awards the Plaintiffs' counsel fees in the amount of
30% of the $3,850,000 Settlement Fund. The Plaintiffs' request for
an award of actual costs at $52,546.67 to be paid from the
Settlement Fund is granted.
The Plaintiffs' request for incentive awards for the three names
class representatives, Mohammed Rahman (deceased), Alicia Noemi
Bautista Diaz, and Pascal Moore is granted. Judge Orrick finds that
an award of $7,500 for each named Plaintiff is appropriate.
An amount of $288,750 will be paid from the Settlement Fund to the
California Labor & Workforce Development Agency for the PAGA
claim.
The Court approves the following implementation schedule:
* Effective Date Upon is the latest date of execution by all
Parties, Class Counsel, Defendants' counsel, and Final
Approval from the Court, following Notice to Class Members
and a formal fairness hearing and entry of a final judgment
by the Court;
* Deadline for Administrator to make all payments due under
the Settlement -- Within ten (10) business days of the
Payment Date;
* Check-cashing/Digital Payment deadline -- 180 days after
issuance;
* Deadline for Administrator to either distribute uncashed
check funds to cy pres recipient or redistribute such funds
-- As soon as practicable after check-cashing deadline; and
* Deadline for Plaintiffs to file a Post-Distribution
Accounting -- Within 21 days after the distribution of any
remaining monies to Class Members who cashed their
Settlement Award check or to the cy pres recipient.
The Court dismisses with prejudice the Action, and the Released
Parties are released from all further liability for the Released
Claims.
Without affecting the finality of this Judgment, the Court reserves
jurisdiction over the implementation, administration and
enforcement of this Judgment and the Settlement, and all matters
ancillary thereto.
A full-text copy of the Court's Order dated Feb. 23, 2023, is
available at https://tinyurl.com/3c8esbx6 from Leagle.com.
GOODER FOODS: Zarzuela Files ADA Suit in S.D. New York
------------------------------------------------------
A class action lawsuit has been filed against Gooder Foods, Inc.
The case is styled as Jose Zarzuela, individually, and on behalf of
all others similarly situated v. Gooder Foods, Inc., Case No.
1:23-cv-02096 (S.D.N.Y., March 12, 2023).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Gooder Foods -- https://www.goodles.com/ -- re-imagines Mac &
cheese that's stealthily healthy and unbelievably delicious.[BN]
The Plaintiff is represented by:
William Downes, Esq.
MIZRAHI KROUB LLP
225 Broadway, Ste. 39th Floor
New York, NY 10007
Phone: (212) 595-6200
Email: wdownes@mizrahikroub.com
GOURMET DELI: Martinez Files FLSA Suit in S.D. New York
-------------------------------------------------------
A class action lawsuit has been filed against Gourmet Deli on 8th
Ave Corp. I, et al. The case is styled as Juan Daniel Irineo
Martinez, individually and on behalf of others similarly situated
v. Gourmet Deli on 8th Ave Corp. I doing business as: Gourmet Deli
& Pizza, Tariq Mohammed Ali, Mark Menna, Case No. 1:23-cv-02032
(S.D.N.Y., March 9, 2023).
The lawsuit is brought over alleged violation of the Fair Labor
Standards Act.
Gourmet Deli on 8th Ave Corp. I doing business as Gourmet Deli &
Pizza -- https://www.gourmetdelipizzamenu.com/ -- is a local
independent pizza restaurant.[BN]
The Plaintiff is represented by:
Catalina Sojo, Esq.
CSM LEGAL P.C.
60 E 42nd St., Suite 4510
New York, NY 10165
Phone: (212) 317-1200
Fax: (212) 317-1620
Email: catalina@csm-legal.com
HAIN CELESTIAL: Faces Suit Over Unsafe Baby Products
----------------------------------------------------
The Hain Celestial Group, 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 7, 2023, that since
February 2021, the company has been named in numerous consumer
class actions alleging that the company's Earth's Best (R) baby
food products contain unsafe and undisclosed levels of various
naturally occurring heavy metals, namely lead, arsenic, cadmium and
mercury.
Those actions have now been transferred and consolidated as a
single lawsuit in the U.S. District court for the Eastern District
of New York captioned "In re Hain Celestial Heavy Metals Baby Food
Litigation," Case No. 2:21-cv-678, which generally alleges that the
company violated various state consumer protection laws and asserts
other state and common law warranty and unjust enrichment claims
related to the alleged failure to disclose the presence of these
metals, arguing that consumers would have either not purchased the
Products or would have paid less for them had the company made
adequate disclosures.
The court appointed interim class counsel for Plaintiffs in the
Consolidated Proceeding, and Plaintiffs filed a Consolidated
Amended Class Action Complaint on March 18, 2022. The company filed
a motion to dismiss the Consolidated Class Action Complaint on
November 7, 2022. The plaintiffs filed their opposition on December
22, 2022, and the company filed its reply brief on January 20,
2023. One consumer class action is pending in New York Supreme
court, Nassau County, which the court has stayed in deference to
the Consolidated Proceeding.
The Hain Celestial Group, Inc. is a marketer, manufacturer and
seller of organic and natural, products based in New York.
HIGHLIGHTS FOR CHILDREN: Lawal Files ADA Suit in S.D. New York
--------------------------------------------------------------
A class action lawsuit has been filed against Highlights for
Children, Inc. The case is styled as Rafia Lawal, on behalf of
herself and all others similarly situated v. Highlights for
Children, Inc., Case No. 1:23-cv-02060 (S.D.N.Y., March 10, 2023).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Highlights for Children -- https://shop.highlights.com/ -- often
referred to simply as Highlights, is an American children's
magazine.[BN]
The Plaintiff is represented by:
Mark Rozenberg, Esq.
MARCUS & ZELMAN LLC
One University Plaza, Ste. 620
Hackensack, NJ 07601
Phone: (201) 282-6500
Email: mrozenberg@steinsakslegal.com
ILLINOIS: Court Narrows Claims in Daniels Suit
----------------------------------------------
In the class action lawsuit captioned as PATRICE DANIELS, et al.,
v. DIRECTOR ROB JEFFREYS, et al., Case No. 1:07-cv-01298-MMM (C.D.
Ill.), the Hon. Judge Michael M. Mihm entered an order granting in
part and denying in part the Defendants' motion to dismiss.
-- The Defendants' motion is denied as to Plaintiffs'
Americans with Disabilities Act (ADA) and Rehabilitation
Act claims and granted as to the claims against the
Governor, the Equal Protection Claims, and the Due Process
claims. The Plaintiffs shall have 21 days from the entry
of this opinion to file an Amended Complaint.
-- The Defendants point out, Plaintiffs do not indicate what
process is due under the circumstances. Plaintiffs also do
not specifically mention procedural due process in the
Amended Complaint at all.
-- Based upon the statements in the Complaint, the Court is
unable to decipher whether Plaintiffs are making a
substantive or procedural due process claim.
-- The Plaintiffs did not put Defendants on notice of the
claim against them and Defendants' assumption that
Plaintiffs were bringing a substantive due process claim
was a reasonable interpretation given the dearth on
information in the Complaint about this claim.
-- Accordingly, Defendants' Motion is granted on this issue
and Plaintiffs have the opportunity to amend this portion
of their Complaint as well.
Thes case has been ongoing since 2007 with Plaintiffs challenging
the adequacy of the delivery of mental health services to mentally
ill prisoners in the physical custody and control of the Illinois
Department of Corrections ("IDOC" or Department).
The Plaintiffs are individuals incarcerated by IDOC and bring a
class action claim on behalf of similarly situated individuals.
For many years, the parties operated under the Third Amended
Complaint which alleged violations of the Eighth Amendment of the
United States Constitution; ADA and the Rehabilitation Act, against
various IDOC officials.
A copy of the Court's order dated Feb. 28, 2023 is available from
PacerMonitor.com at https://bit.ly/3Fg5ilg at no extra charge.[CC]
IMANI LOUNGE: Parties Must Follow Standard Briefing Order
---------------------------------------------------------
In the class action lawsuit captioned as Anderson, et al., v. Imani
Lounge, LLC, et al., Case No. 1:22-cv-00652 (M.D. Ala.), the Hon.
Judge R. Austin Huffaker, Jr. entered an order directing the
Parties to follow the Court's Standard Briefing Order for
responsive briefing deadlines with respect to the Plaintiff's
motion to certify class.
Imani Lounge is a limited liability company located at 512 N Foster
Street in Dothan, Alabama.
The suit alleges violation of the Fair Labor Standards Act.[CC]
INFOMART INC: Herring-Dancy FCRA Suit Removed to W.D. Missouri
--------------------------------------------------------------
The case styled as Andre Herring-Dancy, on behalf of himself and
all others similarly situated v. Infomart, Inc., Case No.
23CN-00008 was removed from the Circuit Court of Clinton County, to
the U.S. District Court for the Western District of Missouri on
March 10, 2023.
The District Court Clerk assigned Case No. 5:23-cv-06033-BCW to the
proceeding.
The lawsuit is brought over alleged violation of the Fair Credit
Reporting Act.
Infomart, Inc. -- https://www.infomart-usa.com/ -- is a background
screening company specializing in pre-employment background checks,
enterprise screening, and small business background screening
services.[BN]
The Plaintiff is represented by:
Charles Jason Brown, Esq.
Jayson A. Watkins, Esq.
BROWN & WATKINS, LLC
301 S. US 169 Highway
Gower, MO 64454
Phone: (816) 505-4529
Fax: (816) 424-1337
Email: brown@brownandwatkins.com
watkins@brownandwatkins.com
The Defendant is represented by:
Rosalee Miller McNamara, Esq.
LATHROP GPM LLP
2345 Grand Avenue, Suite 2200
Kansas City, MO 64108-2618
Phone: (816) 460-5604
Email: rosalee.mcnamara@lathropgpm.com
ISABEL BLOOM: Cromitie Files ADA Suit in S.D. New York
------------------------------------------------------
A class action lawsuit has been filed against Isabel Bloom, Inc.
The case is styled as Seana Cromitie, on behalf of herself and all
others similarly situated v. Isabel Bloom, Inc., Case No.
1:23-cv-02071 (S.D.N.Y., March 10, 2023).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Isabel Bloom, Inc. -- https://www.ibloom.com/ -- creates unique and
memorable sculptures.[BN]
The Plaintiff is represented by:
Mark Rozenberg, Esq.
MARCUS & ZELMAN LLC
One University Plaza, Ste. 620
Hackensack, NJ 07601
Phone: (201) 282-6500
Email: mrozenberg@steinsakslegal.com
JOHNSON & JOHNSON: Schippell Sues Over False Advertising
--------------------------------------------------------
Bonny Schippell, individually and on behalf of all others similarly
situated v. JOHNSON & JOHNSON CONSUMER INC., Case No.
5:23-cv-00410-JGB-SHK (C.D. Cal., March 9, 2023), is brought as a
consumer protection and false advertising class action lawsuit
against Defendant regarding its misleading business practices with
respect to the sale of its Aveeno Baby Continuous Protection
Sensitive Skin Lotion Zinc Oxide Sunscreen and Aveeno Baby Eczema
Therapy Moisturizing Cream (the "Baby Products").
The Defendant has marketed and sold the Baby Products with
labeling, packaging, and advertising that leads consumers to
believe that they are specially made for babies, or otherwise
unique for babies, when in fact, they are not. To accomplish this,
the Baby Products are prominently labeled with the word "Baby."
Unbeknownst to consumers, the Baby Products' ingredients are
identical to the adult versions of the same products: Aveeno
Positively Mineral Sensitive Sunscreen and Aveeno Eczema Therapy
Daily Moisturizing Cream (the "Adult Products"). Further, the
ingredients of the Baby Products are listed in the same order as
the ingredients in the Adult Products. In accordance with the
requirements of the Food and Drug Administration, on a product
label, the ingredients are listed in order of predominance, with
the ingredients used in the greatest amount first, followed in
descending order by those in smaller amounts. Thus, it is on
information and belief that the Baby Products' formulas are also
identical to the Adult Products.
The Baby Products, contrary to their labeling, are not specially
made for babies or otherwise unique for babies, because there is
nothing special or unique to their ingredients or formulas. There
is nothing special or unique to their ingredients or formulas
because the Baby Products' ingredients and formulas are identical
to the Adult Products. Knowing that the indefatigable
caretaker-consumer wrestles day and night with their child's
health, especially the health of the infant-child, manufacturers
like Defendant are keen to provide a safe-haven in the shopping
aisles in the form of products specially made for babies or
otherwise unique for babies.
However, Defendant has feigned this haven by labeling certain items
within its line of sunscreen and moisturizer products as "Baby."
Unbeknownst to the reasonable consumer, there is nothing special,
different, or unique about the Baby Products: they are identical in
formula and ingredients to the Adult Products.
The Defendant misleads reasonable consumers by making use of the
venerable "Baby" label maliciously, thereby taking advantage of the
consumer's edification, caution, and fear, often stemming from
their parental or caretaker role. The Defendant further deceives
consumers by omitting a disclaimer that the Baby Products contain
an identical formula and ingredients as the Adult Products, says
the complaint.
The Plaintiff purchased Aveeno Baby Continuous Protection Sensitive
Skin Lotion Zinc Oxide Sunscreen and Aveeno Baby Eczema Therapy
Moisturizing Cream at a Target store in Redlands, California.
The Defendant sells a line of sunscreen and moisturizing skincare
products, including the Baby Products and Adult Products, under the
"Aveeno" brand name.[BN]
The Plaintiff is represented by:
Lisa Omoto, Esq.
FARUQI & FARUQI, LLP
1901 Avenue of the Stars, Suite 1060
Los Angeles, CA 90067
Phone: (424) 256-2884
Facsimile: (424) 256-2885
Email: lomoto@faruqilaw.com
JUDGE JACK ZOUHARY: Leininger Seeks Class Cert Default Judgment
---------------------------------------------------------------
In the class action lawsuit captioned as THERESA LEININGER, on
behalf of herself and all others similarly situated; v. JUDGE JACK
ZOUHARY MAMMOTH TECH, INC., Case No. 3:22-cv-00394-JZ (N.D. Ohio),
the Plaintiff files a renewed request for default judgment
following class certification.
Accordingly, the Plaintiff requests entry of default judgment
against the Defendant and in favor of the Class for the WARN Act
wages in the amount of $2,403,667.98.
On March 11, 2022, the Plaintiff, through undersigned counsel,
filed the captioned litigation (the "WARN Litigation") on behalf of
herself and on behalf of all similarly situated former employees
against the Defendant to recover 60 days' pay and benefits under
the Worker Adjustment and Retraining Notification (WARN) Act of
1988.
On July 14, 2022, the Plaintiff applied for entry of default. (Doc.
5) and also filed a motion for default judgment, setting limited
discovery and a hearing on damages.
On July 15, 2022, the Clerk entered a default against the
Defendant. On August 16, 2022, the Court entered a notice of
hearing on the Plaintiffs' motion for default. The hearing was set
for September 9, 2022.
On September 6, 2022, the Plaintiff's counsel filed a declaration
in support of default judgment and damages.
At the hearing on September 9, 2022, the Court indicated concerns
that a class had not been certified and later entered an Order
granting the Plaintiff leave to file an amended request or
supplemental materials by October 10, 2022.
On November 3, 2022, the Court entered an Order certifying a class
pursuant to Fed. R. Civ. P. 23 comprised of all former employees of
the Defendant who worked at, or reported to, or were assigned work
from the facility located at 1250 Geneva Boulevard, Defiance,
Ohio.
A copy of the Court's order dated March 1, 2023 is available from
PacerMonitor.com at https://bit.ly/3LdJieH at no extra charge.[CC]
The Plaintiff is represented by:
John N. Childs, Esq.
Angelina C. Gingo, Esq.
BRENNAN, MANNA & DIAMOND, LLC
200 Public Square, Suite 3270
Cleveland, OH 44114
Telephone: (216) 658-2155
Facsimile: (216) 658-2156
E-mail: jcmiller@bmdllc.com
- and -
Mary E. Olsen, Esq.
M. Vance McCrary, Esq.
THE GARDNER FIRM
182 St. Francis Street, Suite 103
Mobile, AL 36602
Telephone: (251) 433-8100
Facsimile: (251) 433-8181
- and -
Stuart J. Miller, Esq.
LANKENAU & MILLER, LLP
100 Church Street, 8th FL
New York, NY 10007
Telephone: (212) 581-5005
Facsimile: (212) 581-2122
LANDMARK RECOVERY: Fails to Pay Proper Wages, Black Alleges
-----------------------------------------------------------
JAMES BLACK, individually and on behalf of all other similarly
situated, Plaintiff v. LANDMARK RECOVERY OF LOUISVILLE, LLC,
Defendant, Case No. 3:23-cv-00217 (M.D. Tenn., March 10, 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 Black was employed by the Defendant as patient engagement
specialist.
LANDMARK RECOVERY OF LOUISVILLE, LLC offers drug and alcohol rehab,
detox, & individualized treatment plans. [BN]
The Plaintiff is represented by:
David W. Garrison, Esq.
Joshua A. Frank, Esq.
Nicole A. Chanin, Esq.
BARRETT JOHNSTON MARTIN &
GARRISON, PLLC
414 Union Street, Suite 900
Nashville, TN 37219
Telephone: (615) 244-2202
Facsimile: (615) 252-3798
Email: dgarrison@barrettjohnston.com
jfrank@barrettjohnston.com
nchanin@barrettjohnston.com
- and -
Matthew J.P. Coffman, Esq.
Kelsie N. Hendren, Esq.
Tristan T. Akers, Esq.
COFFMAN LEGAL, LLC
1550 Old Henderson Rd Suite #126
Columbus, OH 43220
Telephone: (614) 949-1181
Facsimile: (614) 386-9964
Email: mcoffman@mcoffmanlegal.com
khendren@mcoffmanlegal.com
takers@mcoffmanlegal.com
LASALLE MANAGEMENT: Barahona Sues Over Forced Labor Scheme
----------------------------------------------------------
NILSON BARAHONA; NIKOLAS GAZETAS; and OMAR ISAIAS TAVIRA GARCIA,
individually and on behalf of all others similarly situated,
Plaintiffs v. LASALLE MANAGEMENT COMPANY, LLC d/b/a LASALLE
CORRECTIONS; LASALLE CORRECTIONS, LLC; LASALLE SOUTHEAST, LLC; and
IRWIN COUNTY DETENTION CENTER, Defendants, Case No.
7:23-cv-00024-HL (M.D. Ga., March 10, 2023) alleged violation of
the Trafficking Victims Protection Act.
The Plaintiffs allege in the complaint that the Defendants
maintained a deprivation scheme intended to force detained
immigrants, who are civil detainees, to work for nearly free. The
Defendants deprived civilly detained immigrants of basic
healthcare, subsistence, sustenance, and legal necessities, such as
access to medically required food, hygienic products, and access to
contact with their support networks, loved ones, immigration
officials, and legal representation, forcing them to work for as
little as $1 per day in order to purchase these necessities, says
the suit.
LASALLE MANAGEMENT COMPANY, LLC d/b/a LASALLE CORRECTIONS business
includes providing facilities support management and consulting
services. [BN]
The Plaintiff is represented by:
Zack Greenamyre, Esq.
MITCHELL SHAPIRO GREENAMYRE & FUNT LLP
3490 Piedmont Road, Suite 650
Atlanta, GA 30305
Telephone: (404) 812-4747
Email: zack@mitchellshapiro.com
- and -
Barbara J. Hart, Esq.
Karin Fish, Esq.
Irene R. Lax, Esq.
GRANT & EISENHOFER P.A.
485 Lexington Ave. 29th Floor
New York, NY 10017
Telephone: (646) 722-8500
Email: bhart@gelaw.com
kfisch@gelaw.com
ilax@gelaw.com
- and -
Samuel Mukiibi, Esq.
Pooja Mehta, Esq.
GRANT & EISENHOFER P.A.
123 Justison Street
Wilmington, DE 19801
Telephone: (302) 622-7500
Email: smukiibi@gelaw.com
pmehta@gelaw.com
LGA RETAIL INC: Cromitie Files ADA Suit in S.D. New York
--------------------------------------------------------
A class action lawsuit has been filed against LGA Retail, Inc. The
case is styled as Seana Cromitie, on behalf of herself and all
others similarly situated v. LGA Retail, Inc., Case No.
1:23-cv-02069 (S.D.N.Y., March 10, 2023).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
LGA Retail is located in South Lyon, Michigan and primarily
operates in the Personal Computers (Microcomputers) business.[BN]
The Plaintiff is represented by:
Mark Rozenberg, Esq.
MARCUS & ZELMAN LLC
One University Plaza, Ste. 620
Hackensack, NJ 07601
Phone: (201) 282-6500
Email: mrozenberg@steinsakslegal.com
LOANDEPOT INC: Filing of Class Certification Bid Due July 21
------------------------------------------------------------
In the class action lawsuit captioned as Eljon Lako v. Loandepot,
Inc. et al., Case No. 8:21-cv-01449-JLS-JDE (C.D. Cal.), the Hon.
Judge Josephine L. Staton entered an scheduling order as follows:
Last Day to File a Motion to Add
Parties or Amend Pleadings 1 : May 9, 2023
Last Day to File a Motion for
Class Certification: July 21, 2023
Last Day to File an Opposition to
Motion for Class Certification: September 15, 2023
Last Day to File a Reply to Motion
for Class Certification: October 20, 2023
Fact Discovery Cutoff: January 12, 2024
Last Day to Conduct Settlement
Proceedings: March 15, 2024
LoanDepot is an Irvine, California-based nonbank holding company
which sells mortgage and non-mortgage lending products.
A copy of the Court's order dated Feb. 28, 2023 is available from
PacerMonitor.com at https://bit.ly/3JyuNBc at no extra charge.[CC]
MONDELEZ GLOBAL: Newman Sues Over Deceptive Marketing
-----------------------------------------------------
Tara Newman, individually and on behalf of all others similarly
situated v. Mondelez Global LLC, Case No. 1:23-cv-01988 (S.D.N.Y.,
March 8, 2023), is brought seeking to remedy the deceptive and
misleading business practices of the Defendant with respect to the
marketing and sale of Defendant's HU and Green & Black's dark
chocolate products throughout the state of New York and throughout
the country.
The Defendant's products include the following: HU Organic Simple
Dark Chocolate 70% Cacao; and Green & Black's Organic Dark
Chocolate 70% Cacao (hereinafter the "Products"). The Defendant
fails to disclose on the Products' packaging that the Products
contain lead and cadmium. Lead is a dangerous and harmful chemical
when consumed, especially by pregnant women and children.
Scientists agree that there is no level of lead that is safe.
According to the Mayo Clinic, "lead poisoning occurs when lead
builds up in the body, often over months or years. Even small
amounts of lead can cause serious health problems. Children younger
than 6 years are especially vulnerable to lead poisoning, which can
severely affect mental and physical development. At very high
levels, lead poisoning can be fatal."
The Defendant's marketing and advertising campaign includes the one
place that every consumer looks when purchasing a product – the
packaging and labels themselves. The Defendant's advertising and
marketing campaign for the Products is false, deceptive, and
misleading because it does not disclose the high levels of lead and
cadmium in the Products. High levels of lead and cadmium in food
products is material to reasonable consumers, because these
chemicals pose serious health risk, even in small dosages.
Additionally, the lead and cadmium levels in the Products could not
be known before purchasing them, and may not be determined without
extensive and expensive scientific testing. Accordingly, consumers
rely on Defendant to be truthful regarding the ingredients,
including the existence of lead and cadmium, in the Products.
On the other hand, the Defendant knew and could not be unaware of
the existence of lead and cadmium in the Products. The Defendant
sources the ingredients and manufactures the Products, and has
exclusive knowledge of the quality control testing on the Products
and the ingredients contained therein.
The Plaintiff and those similarly situated ("Class Members") relied
on the Defendant's misrepresentations and omissions that the
Products contained only dark chocolate ingredients when purchasing
the Products. The Plaintiff and Class Members paid a premium for
the Products based upon Defendant's marketing and advertising
campaign. Given that Plaintiff and Class Members paid a premium for
the Products based on Defendant's misrepresentations and omissions,
Plaintiff and Class Members suffered an injury in the amount of the
premium paid, says the complaint.
The Plaintiff purchased the Products in New York, New York multiple
times throughout the Class Period.
The Defendant manufactures, markets, advertises, and distributes
the Products throughout the United States.[BN]
The Plaintiff is represented by:
Jason P. Sultzer, Esq.
Daniel Markowitz, Esq.
THE SULTZER LAW GROUP P.C.
85 Civic Center Plaza, Suite 200
Poughkeepsie, NY 12601
Phone: (845) 483-7100
Fax: (888) 749-7747
Email: sultzerj@thesultzerlawgroup.com
markowitzd@thesultzerlawgroup.com
- and -
Nick Suciu III, Esq.
MILBERG COLEMAN BRYSON PHILLIPS GROSSMAN, PLLC
6905 Telegraph Rd., Suite 115
Bloomfield Hills, MI 48301
Phone: (313) 303-3472
Email: nsuciu@milberg.com
- and -
Gary M. Klinger, Esq.
MILBERG COLEMAN BRYSON PHILLIPS GROSSMAN, PLLC
227 W. Monroe Street, Suite 2100
Chicago, IL 60606
Phone: (847) 208-4585
Email: gklinger@milberg.com
- and -
Trenton R. Kashima, Esq.
MILBERG COLEMAN BRYSON PHILLIPS GROSSMAN, PLLC
401 West C St., Suite 1760
San Diego, CA 92101
Phone: (308) 870-7804
Email: tkashima@milberg.com
- and -
Charles E. Schaffer, Esq.
David C. Magagna Jr., Esq.
LEVIN SEDRAN & BERMAN
510 Walnut Street, Suite 500
Philadelphia, PA 19106
Phone: 215-592-1500
Email: dmagagna@lfsblaw.com
cschaffer@lfsblaw.com
- and -
Jeffrey K. Brown, Esq.
LEEDS BROWN LAW, P.C.
1 Old Country Rd., Suite 347
Carle Place, NY 11514
Phone: (516) 873-9550
Email: jbrown@leedsbrownlaw.com
MORGAN STANLEY: Court Allows Report to Be Filed Partly Sealed
-------------------------------------------------------------
Judge Paul A. Engelmayer of the U.S. District Court for the
Southern District of New York grants in part the parties' motion to
file report under seal in the lawsuit entitled In re Morgan Stanley
Data Security Litigation, Case No. 20 Civ. 5914 (PAE) (S.D.N.Y.).
On Aug. 5, 2022, in a lengthy bench decision, the Court approved
(1) the proposed class action settlement; and (2) attorneys' fees,
costs, and service awards, issuing separate orders as to these
subjects. On Nov. 9, 2022, the Court approved the parties' proposed
schedule for providing quarterly status update letters as to the
work of Kroll Inc., which Morgan Stanley, pursuant to the parties'
settlement agreement, retained to retrieve the decommissioned
devices at issue.
On Feb. 15, 2023, the parties moved to file under seal the first
quarterly status report, and supplied a copy of that report to the
Court for its in camera review (report). The parties requested that
the report, in its entirety, be filed under seal.
Upon review of the report, and in accordance with the Court's
Individual Rules and Practices for sealed filings, the Court
concludes that substantial portions of the report are indeed
properly maintained under seal, including insofar as revelations of
the investigative steps, techniques, and findings described therein
could compromise valid interests in confidentiality and/or be
exploited by bad actors. However, Judge Engelmayer finds that
substantial portions of the report are not of this nature and do
not require sealing. And a public exposition of Kroll's report,
even in redacted form, would usefully inform members of the class
as to the concrete nature and utility of the Kroll services that
are a component of the approved settlement.
The Court, accordingly, grants the request for leave to file a
sealed copy of the report, while instructing the Defendant to file,
on the public docket of this case, a redacted version of the
report.
A full-text copy of the Court's Order dated Feb. 23, 2023, is
available at https://tinyurl.com/3j925rm4 from Leagle.com.
NEW YORK, NY: Feeley Oral Argument Letter Improperly Filed
----------------------------------------------------------
In the class action lawsuit captioned as Feeley v. The City of New
York, et al., Case No. 1:20-cv-01770 (E.D.N.Y.), the Hon. Judge
Peggy Kuo entered an order striking the Plaintiff's letter
regarding the recent oral argument related to the motion for class
certification as being improperly filed.
The nature of suit states Civil Rights -- Employment
Discrimination.[CC]
NEW YORK, NY: Police Officers Face Class Action Over Mask Mandates
------------------------------------------------------------------
Thomas Tracy at New York Daily News reports that mask mandates are
a thing of the past for nearly all New Yorkers outside the health
care industry — but a group of New York City Police Department
officers caught up in a class action lawsuit over conditions at
borough courthouses remain under a federal judge's order to cover
their noses and mouths.
Many of the 500 cops in the NYPD Court Section who process and
transport defendants from jail cells to arraignments are not happy
about following rules that have been dropped for everyone else.
"No one in the entire building has to wear masks," a Court Section
officer told the Daily News. "Everyone has access to the
defendants, but we're the ones being punished after the mayor and
the governor said we don't have to wear it anymore."
Court Section cops were recently threatened with command
disciplines or suspension if they were caught not wearing masks,
even though the order flies in the face of common sense, one of the
officers said.
"The court officers, the correction officers, the probation
officers, the attorneys — they all have face-to-face interaction
with the prisoner. But none of them have to wear masks," the
officer said. "So the NYPD is the ones with the germs?
"This makes us look like we're sick," the officer said. "Everyone
wants to know why we're wearing masks, but no one wants to help.
I'm sure if [Police Benevolent Association president] Pat Lynch had
to still wear a mask, he'd be raising hell."
When reached, Lynch said the "order is out of touch with the
current reality," and that there is "no rational reason it should
remain for certain NYPD facilities."
The class action lawsuit was filed in Brooklyn Federal Court in
November 2021 on behalf of detainees held at the city's state
courthouses during the tail end of the COVID-19 pandemic.
The detainees' suit complained that a lack of masks and filthy,
cramped conditions in central booking facilities that serve the
courthouses made the holding cells a petri dish for deadly
viruses.
"The (city) did not follow any of the established guidance on how
jails and correctional institutions should mitigate the risks of
transmitting COVID-19," the lawsuit stated.
The lawsuit was filed months after then-Mayor Bill de Blasio's July
2021 order requiring the city's 300,000 city workers to either get
the COVID-19 vaccine or wear a masks indoors and take COVID-19
tests weekly.
The rule varied among city agencies and was challenged by city
employee unions. It acquired some teeth in October 2021, when de
Blasio imposed an Oct. 29 deadline for workers to get shots. Those
who complied were offered a $500 bonus, and those who did not faced
possible punishment.
Amid the varying imposition of the rule, nearly 40 detainees who
spent time in the city's different central booking facilities
signed on to the class action lawsuit. Not all of them came down
with COVID-19, said their lawyer, Richard Cardinale.
"These were good people — no one with criminal records,"
Cardinale said of his clients. "They were jammed into unsanitary
cells with no screenings, no rapid COVID tests and no masks. The
city had put on this persona that they cared about stopping COVID,
but nothing was being done."
On Jan. 26, 2022, the city hammered out a "consent order" with
Cardinale's clients, vowing to do a better job at social distancing
and providing masks to detainees, as well as routinely sanitizing
the cells as the case wended its way through federal court.
"The city shall continue to require that all central booking
facility staff wear a CDC-recommended mask when interacting with
detainees, other staff, and visitors within the facility," the
consent order mandated, not specifically identifying who exactly
should be wearing a mask.
In February 2022 — about two weeks after the city's consent order
was filed — Gov. Kathy Hochul announced the end of the statewide
masking requirement, marking a turning point for New York's
COVID-19 response.
Masking requirements lingered on for some government workers. The
requirement for public transit workers stayed in effect until
September. Mask mandates in city hospitals continued until last
month.
The requirements also eased for state employees in the court system
and employees of the city Department of Correction, who work in the
courthouses and their associated jails but are not considered
central booking facility staff.
"Our court officers and staff are not required to wear masks but
may do so on a voluntary basis," a spokesman for the state court
system said.
Only NYPD Court Section officers are officially considered central
booking staff under the court order — so only those officers are
required to continue wearing masks.
"The NYPD is currently subject to a court-order which requires all
NYPD personnel to wear masks in the central booking facilities when
interacting with detainees, other staff, and visitors within these
facilities," an NYPD spokesman said. "The department has taken the
necessary steps to ensure that its personnel are in compliance with
the requirements of the court order."
The agreement allows the city to seek changes to the order — but
so far, the city has not taken steps to do so. A city Law
Department spokesman said lawyers were "looking into" asking for
changes to the rules.
"In the meantime, we are complying with the court order," the
spokesman said.
Lynch said that instead of punishing members of his union who do
not comply with the rule, the city "needs to go back to the court
and have the order updated. This kind of nonsense is yet another
reason cops are quitting in droves."
The consent order also guarantees that detainees are given masks
which they must wear in the cells and as they are being brought up
to court. Many inmates decline the masks, or take them off in the
cells, a court source said.
COVID-19 is still a problem in the city with about two people dying
per day, 32 people hospitalized and more than 540 diagnosed with
the virus, according to city Department of Health statistics.
Cardinale thinks that the mask mandate should still be in affect.
In his view, one of city government's jobs is to prevent the spread
of infectious diseases, be they another COVID-19 variant or the
common cold.
"The situation is so in flux with COVID," he said. "There are so
many issues in these facilities and Central Booking has such a
filthy atmosphere that everything in the consent order should
continue. There's no way to predict what will happen next." [GN]
O'REILLY AUTO: Vvanti Suit Seeks to Certify 4 Classes
-----------------------------------------------------
In the class action lawsuit captioned as SAMANTHA VVANTI on behalf
of herself and all others similarly situated, v. O'REILLY AUTO
ENTERPRISES, LLC., a Delaware limited liability company; and DOES 1
through 50, inclusive, Case No. 2:19-cv-02407-JAK-JPR (C.D. Cal.),
the Plaintiff asks the Court to enter an order pursuant to Federal
Rule of Civil Procedure 23:
1. Determining that a class action is proper as to the Second
Cause of Action contained in the First Amended Class
Action Complaint (Failure to Provide Compliant Meal Breaks
or Pay One Hour at the Regular Rate of Compensation);
2. Determining that a class action is proper as to the Fifth
Cause of Action contained in the First Amended Class
Action Complaint;
3. Determining that a class action is proper as to the Sixth
Cause of Action contained in the First Amended Class
Action Complaint (Knowing and Intentional Failure to
Comply with Itemized Wage Statement Provisions);
4. Determining that class treatment is appropriate under
Federal Rule of Civil Procedure 23(b)(3);
5. Certifying the following Classes:
-- Class 1 Meal Break Class
"All current and former non-exempt hourly employees of
Defendant in the state of California who worked an
O'Reilly Auto Parts retail store at any time from
January 4, 2015, through the present who received at
least one meal break premium during the time period,
January 4, 2015, through April 6, 2018.
-- Class 2 Direct Violation of Wage Statement Class
"All current and former non-exempt hourly employees of
Defendant in the state of California who worked in an
O'Reilly Auto Parts retail store and who at any time
from January 4, 2018, through the present, received at
least one wage statement."
-- Class 3 Derivative Violation of Wage Statement Class
"All current and former non-exempt hourly employees of
Defendant in the state of California who worked in an
O'Reilly Auto Parts retail store and who at any time
from January 4, 2018, through April 6, 2018, received
at least one wage statement containing a meal break
premium."
-- Class 4 Waiting Time Class
"All former non-exempt hourly employees of Defendant in
the state of California who worked in an O'Reilly Auto
Parts retail store at any time from January 4, 2016,
through the present who received meal premiums during
the time period January 4, 2016, through April 6,
2018."
6. Finding the Plaintiff to be an adequate representative and
certifying him as the class representative.
7. Finding Plaintiff's counsel and their firm, namely James
R. Hawkins, Isandra Fernandez, and Lance Dacre of James
Hawkins APLC, as adequate class counsel and certifying
them as class counsel.
O'Reilly owns and operates retail auto parts stores. The Company
provides private-label and generic automotive products.
A copy of the Court's order dated Feb. 28, 2023 is available from
PacerMonitor.com at https://bit.ly/3LcmlbN at no extra charge.[CC]
The Plaintiff is represented by:
James R. Hawkins, Esq.
Isandra Fernandez, Esq.
Lance Dacre, Esq.
JAMES HAWKINS APLC
9880 Research Drive, Suite 200
Irvine, CA 92618
Telephone: (949) 387-7200
Facsimile: (949) 387-6676
E-mail: james@jameshawkinsaplc.com
isandra@jameshawkinsaplc.com
lance@jameshawkinsaplc.com
OCWEN FINANCIAL: Bid for Class Decertification Junked
-----------------------------------------------------
In the class action lawsuit captioned as DAVID WEINER,
individually, and on behalf of other members of the public
similarly situated, v. OCWEN FINANCIAL CORPORATION, a Florida
corporation, and OCWEN LOAN SERVICING, LLC, a Delaware limited
liability company, Case No. 2:14-cv-02597-TLN-DB (E.D. Cal.), the
Hon. Judge Troy L. Nunley entered an order:
1. granting the Plaintiff's motion for reconsideration;
2. vacating the Court's January 12, 2022, order; and
3. denying Ocwen's motion for class decertification.
The parties are ordered to file an updated joint status report
within 60 days of the date of this order discussing their
willingness to attend a settlement conference before a magistrate
judge.
The Plaintiff's motion to compel testimony is stayed pending the
receipt of the joint status report and further order of the Court.
The Court's previous concern related to the dispute regarding the
"paid" designation was misplaced and premised on the Court's
incorrect belief that TransUnion required a showing that all class
members have standing at the certification stage.
Understanding now that TransUnion explicitly does not require such
a showing, it is clear that Judge England's certification was not
in error.
The Plaintiff's evidence regarding the "paid" designation is
capable of showing class wide harm and individual class members who
are not entitled to damages -- i.e., class members who did not pay
the valuation fee -- may be weeded out at the claims phase,
preventing any individuals without standing from "recovering
individual damages" just as TransUnion envisioned.
The case arises from the Plaintiff's allegations that his mortgage
servicer, Ocwen Loan Servicing, LLC ("OLS"), and OLS's parent
company, Ocwen Financial Corporation, improperly assessed
default-related service fees that contained substantial,
undisclosed mark-ups that violated the terms of Plaintiff's
mortgage contract. The Plaintiff further alleges that Ocwen
misapplied his payments in violation of the terms of the applicable
Deed of Trust.
The Plaintiff initiated this class action alleging violations of:
(1) California's Unfair Competition Law ("UCL"), (2) the Racketeer
Influenced and Corrupt Organizations Act ("RICO"), and and (3) the
Rosenthal Fair Debt Collection Practices Act.
The Plaintiff also alleges state law claims for unjust enrichment,
fraud, and breach of contract. On September 29, 2017, Judge England
granted Plaintiff's Motion for Class Certification.
The Court found that all four prerequisites of Federal Rule of
Civil Procedure ("Rule") 23(a) and (b)(3) were met. Judge England
certified three classes: (1) a Nationwide Class; (2) a California
Paid Sub-Class; and (3) a California Assessed Sub-Class.
On April 12, 2021, this case was reassigned to this Court. On
September 20, 2021, Ocwen filed a motion for decertification, which
the Court granted on August 3, 2022.
Ocwen is a provider of residential and commercial mortgage loan
servicing, special servicing, and asset management services.
A copy of the Court's order dated Feb. 28, 2023 is available from
PacerMonitor.com at https://bit.ly/3LxokIb at no extra charge.[CC]
ONPOINT COMMUNITY: Granados' Bid for Class Cert. Due July 17
------------------------------------------------------------
In the class action lawsuit captioned as Granados v. OnPoint
Community Credit Union, Case No. 3:21-cv-00847 (D. Or.), the Hon.
Judge Michael H. Simon entered an scheduling order as follows:
(1) Discovery is to be completed by: April 17, 2023
(2) Both parties' opening expert May 1, 2023
reports are due by:
(3) Both parties' rebuttal reports May 31, 2023
are due by:
(4) Expert discovery to be June 30, 2023
completed by:
(5) The Plaintiff's motion for July 17, 2023
class certification is due by:
(6) The Defendant's opposition Aug. 16, 2023
to class certification is due
by:
(7) The Plaintiff's reply is due Aug. 30, 2023
by:
OnPoint Community operates as a financial cooperative.
The nature of suit states Other Statutes -- Other Statutory.[CC]
PACIFIC GRAIN: Class Certification Bid Hearing Reset to April 26
----------------------------------------------------------------
In the class action lawsuit captioned as Salcedo v. Pacific Grain &
Foods, LLC, Case No. 1:22-cv-00640 (E.D. Cal.), the Hon. Judge
Stanley A. Boone entered an order that due to a conflict with the
Court's schedule, the Class Certification Motion Hearing currently
set for April 19, 2023, is reset for April 26, 2023 at 10:00 AM.
The suit alleges violation of the Fair Labor Standards Act.
Pacific Grain is a purveyor of dry beans, rice, grains and nut
butters.[CC]
PHH CORP: Denial of Bid to Modify Pretrial Order in Munoz Reversed
------------------------------------------------------------------
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 reversed the district court's denial of the
Plaintiffs' motion to modify a final pretrial order.
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, 12 U.S.C. Section 2607.
The Ninth Circuit states that the final pretrial order established
the standard for seeking relief from the order. 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, the Plaintiffs 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. Is says 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 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 Ninth Circuit notes that 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 concludes that the district court abused its
discretion in barring their evidence under the first late
disclosure provision of the final pretrial order. Therefore, it
reverses and remands for further proceedings.
A full-text copy of the Court's Feb. 24, 2023 Memorandum is
available at https://tinyurl.com/2vkarn63 from Leagle.com.
PISA GROUP: Pennsylvania Court Certifies Class in Williams Suit
---------------------------------------------------------------
In the case, JANINE WILLIAMS, individually and on behalf of all
others similarly situated v. THE PISA GROUP, INC., Civil Action No.
18-4752 (E.D. Pa.), Judge Gerald Austin McHugh of the U.S. District
Court for the Eastern District of Pennsylvania grants the
Plaintiff's Amended Motion for Class Certification.
The action will be maintained as a class action in accordance with
Federal Rules of Civil Procedure 23(a) and (b)(3), pursuant to the
following findings of fact:
1. The Plaintiff has asserted claims for the Defendant's
violations of 47 U.S.C. Section 227(c) on behalf of the following
Class: "All natural persons in the United States who, within four
years preceding the filing of this case, received more than one
telephone solicitation call from PGI within a 12-month period
telemarketing newspaper subscriptions more than 31 days after
registering their telephone number with the National Do-Not-Call
Registry."
2. The Class is so numerous that joinder of all members is
impracticable.
3. There are questions of law and/or fact common to the
Class.
4. The claim of representative Plaintiff Williams is typical
of the claim of the Class.
5. The Plaintiff and her counsel -- Ellzey & Associates PLLC,
Hughes Ellzey LLP, and Kimmel & Silverman PC -- will fairly and
adequately represent the interests of the Class.
6. Common issues of proof will predominate in the TCPA class
action.
7. A class action is superior to other available methods for
the fair and efficient adjudication of this controversy.
A full-text copy of the Court's Feb. 24, 2023 Order is available at
https://tinyurl.com/2rnvv7yc from Leagle.com.
PREMIER NUTRITION: Faces Consumer Suit Over False Claims
--------------------------------------------------------
BellRing Brands, 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 7, 2023, that in January 2019,
a class action complaint was filed on behalf of a putative,
nationwide class of consumers against its subsidiary Premier
Nutrition in California Superior Court for the County of Alameda,
alleging claims regarding its Joint Juice line of glucosamine and
chondroitin dietary supplement beverages were false and misleading
and seeking monetary damages and injunctive relief on behalf of a
putative class of California consumers, beginning after the
California Federal Class Lawsuit class period.
This matter is set for trial in June 2023.
BellRing Brands, Inc. is into food & kindred products based in
Missouri.
PRO STAR: Filing of Class Certification Bid Due July 28
-------------------------------------------------------
In the class action lawsuit captioned as Daniel Bird v. Pro Star
Builders, Inc., Case No. 2:22-cv-03610-JLS-JEM (C.D. Cal.), the
Hon. Judge Josephine L. Staton entered a scheduling order as
follows:
Last Day to File a Motion to Add
Parties or Amend Pleadings: March 17, 2023
Last Day to File a Motion for Class
Certification: July 28, 2023
Last Day to File an Opposition to
Motion for Class Certification: August 25, 2023
Last Day to File a Reply to Motion
for Class Certification: September 8, 2023
Fact Discovery Cutoff: December 8, 2023
Last Day to File Motions (Excluding
Daubert Motions and all other Motions
in Limine): December 22, 2023
ProStar Builders specializes in Metal Roofing of all types.
A copy of the Court's order dated March 1, 2023 is available from
PacerMonitor.com at https://bit.ly/3ZZ7HJ9 at no extra charge.[CC]
PUB GROUP: Fails to Pay Proper Wages, Alayamani Suit Alleges
------------------------------------------------------------
SUMMER ALAYAMINI, individually and on behalf of all others
similarly situated, Plaintiff v. PUB GROUP 3 MANAGEMENT, LLC,
Defendant, Case No. 5:23-cv-00475 (N.D. Ohio., March 9, 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 Alayamini was employed by the Defendant as server.
PUB GROUP 3 MANAGEMENT, LLC owns and operates a chain of
restaurants in Ohio. [BN]
The Plaintiff is represented by:
Shannon M. Draher, Esq.
Hans A. Nilges, Esq.
NILGES DRAHER LLC
7034 Braucher, N.W., Suite B
North Canton, OH 44720
Telephone: (330) 470-4428
Facsimile: (330) 754-1430
Email: sdraher@ohlaborlaw.com
hans@ohlaborlaw.com
RAYTHEON TECHNOLOGIES: Dismissal of Darnis Suit Under Appeal
------------------------------------------------------------
Raytheon Technologies 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 7, 2023, that on
August 12, 2020, several former employees of United Technologies
Corporation (UTC) or its subsidiaries filed a putative class action
complaint in the United States District court for the District of
Connecticut against the company, Otis, Carrier, the former members
of the UTC Board of Directors, and the members of the Carrier and
Otis Boards of Directors captioned "Geraud Darnis, et al. v.
Raytheon Technologies Corporation, et al." The case has been
dismissed with the plaintiffs filing an appeal over the dismissal.
The complaint challenged the method by which UTC equity awards were
converted to company, Otis, and Carrier equity awards following the
separation of UTC into three independent, publicly-traded companies
on April 3, 2020. The complaint also claimed that the defendants
are liable for breach of certain equity compensation plans and also
asserted claims under certain provisions of the Employee Retirement
Income Security Act of 1974 (ERISA).
On September 13, 2021, Plaintiffs filed an amended complaint which
supersedes the initial complaint and continues to assert claims for
breach of the equity compensation plans against the company, Otis
and Carrier, but no longer asserts ERISA claims. Further, no claim
is made in the amended complaint against any current or former
director of any of the three companies. Plaintiffs seek money
damages, attorneys' fees and other relief.
On September 30, 2022, in response to motions to dismiss filed by
the company, Otis and Carrier, the court dismissed the class action
in its entirety with prejudice. On October 26, 2022, Plaintiffs
filed an appeal to the United States court of Appeals for the
Second Circuit.
Raytheon Technologies Corporation is an aerospace and defense
company based in Virginia.
RAYTHEON TECHNOLOGIES: Faces Shareholder Suit Over SEC Misreporting
-------------------------------------------------------------------
Raytheon Technologies 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 7, 2023, that a
putative securities class action lawsuit was filed in the United
States District Court for the District of Arizona against the
company and certain of its executives alleging that the defendants
violated federal securities laws by making material misstatements
in regulatory filings regarding internal controls over financial
reporting in Raytheon Missiles and Defense.
Raytheon Technologies Corporation is an aerospace and defense
company based in Virginia.
REX VENTURE: Court Orders JP Morgan to Pay $2.8K in Nationwide Suit
-------------------------------------------------------------------
In the lawsuit titled NATIONWIDE JUDGMENT RECOVERY, INC., as
assignee of Matthew E. Orso, in his capacity as successor
court-appointment Receiver for Rex Venture Group, LLD, d/b/a
ZeekRewards.com for Receiver Kenneth D. Bell, Plaintiff v. JAMES K.
LARSON, a member of the Defendant Class of Net Winners in
ZeckRewards.com, TODD DISNER, in his individual capacity and in his
capacity as trustee for Kestrel Spendthrift Trust, TRUDY GILMOND,
TRUDY GILMOND, LLC, JERRY NAPIER, DARREN MILLER, RHONDA GATES,
DAVID SORRELLS, INNOVATION MARKETING, LLC, AARON ANDREWS, SHARA
ANDREWS, GLOBAL INTERNET FORMULA, INC., T. LEMONT SILVER, KAREN
SILVER, MICHAEL VAN LEEUWEN, DURANT BROCKETT, DAVID KETTNER, MARY
KETTNER, P.A.W.S. CAPITAL MANAGEMENT LLC LORI JEAN WEBER, and
Defendant Class of Net Winners in ZEEKREWARDS.COM, Defendants, JP
MORGAN CHASE BANK, N.A., Garnishee, Case No. 22-rj-00006-CMA (D.
Colo.), Senior District Judge Christine M. Arguello of the U.S.
District Court for the District of Colorado ordered Garnishee JP
Morgan Chase Bank, N.A., to pay to Judgment Creditor the sum of
$2,822.
After consideration of the Motion for Entry of Judgment in
Garnishment Action of Plaintiff-Judgment Creditor Nationwide
Judgment Recovery, Inc., as assignee of Matthew E. Orso, in his
capacity as successor court-appointed Receiver for Rex Venture
Group, LLC d/b/a ZeekRewards.com for Receiver Kenneth D. Bell
("Judgment Creditor") and the other papers on file in this action,
the Court renders judgment in this garnishment action as set out
here.
Judgment Creditor owns and holds a valid and subsisting outstanding
judgment against James Larson. That judgment was issued and entered
by the United States District Court of the Western District of
North Carolina; Cause Number 3:14-cv-00091-GCM (the "Underlying
Judgment"). In the Underlying Judgment, Matthew E. Orso, in his
capacity as successor court-appointed Receiver for Rex Venture
Group, LLC d/b/a ZeekRewards.com for Receiver Kenneth D. Bell (the
plaintiff in that case) was awarded judgment against James Larson
("Judgment Debtor") for the sum of $7,331.14 together with
post-judgment interest at the rate of 1.22% per annum. Judgment
Creditor is an assignee of Matthew E. Orso, in his capacity as
successor court-appointed Receiver for Rex Venture Group, LLC d/b/a
ZeekRewards.com for Receiver Kenneth D. Bell and is the current
owner and holder of the Underlying Judgment.
The time for appeal of the Underlying Judgment previously expired.
On April 4, 2021, Judgment Creditor registered the Underlying
Judgment in this Court. On May 10, 2022, Judgment Creditor filed an
Application for a Writ of Garnishment in this action reflecting,
among other things, that the Underlying Judgment was unpaid and
that the applicable grounds for issuing a writ of garnishment had
been met. On May 10, 2022, a Writ of Garnishment After Judgment
("Writ of Garnishment") was issued in this action.
On May 23, 2023, JP Morgan Chase Bank, N.A., filed an Answer to the
Writ of Garnishment. In its Answer, JP Morgan Chase Bank, N.A.,
stated that it was indebted to Judgment Debtor in the amount of
$2,822.59. Judgment Debtor was previously served with a copy of the
Application for a Writ of Garnishment and the Writ of Garnishment.
On July 1, 2022, Judgment Debtor filed a Motion to Vacate the
Clerk's Certification of Judgment. The Court denied the Motion,
concluding that notice to Judgment Debtor of the class action had
been reasonably calculated, under all the circumstances, to apprise
interested parties of the pendency of the action and afford them an
opportunity to present their objections. On Oct. 13, 2022, Judgment
Debtor filed a claim of exemption. The Court denied this as
untimely.
Accordingly, pursuant to the findings of the Court, Judge Arguello
ordered that Garnishee JP Morgan Chase Bank, N.A., will pay to
Judgment Creditor the sum of $2,822.59 within ten (10) days after
entry of this Order.
Effective upon its making of the $2,822.59 payment to Judgment
Creditor, JP Morgan Chase Bank, N.A., and all of its subsidiaries
and affiliated entities will be discharged of all liability
regarding the $2,822.59, including liability to James Larson and
affiliated entities and/or any other entities.
Such discharge of liability is without prejudice to Judgment
Creditor's right to garnish JP Morgan Chase Bank, N.A., its
subsidiaries and affiliated entities or any other person or entity
in the future with regard to other debts and/or money belonging to
or owed to Judgment Debtor.
The costs of court in this action are taxed against Judgment
Debtor.
Any relief requested in this action, which is not expressly granted
here, is denied, and that this judgment disposes of all claims to
the $2,822.59 fund in this action and is appealable.
A full-text copy of the Court's Garnishee Order dated Feb. 23,
2023, is available at https://tinyurl.com/ydasu3e7 from
Leagle.com.
RH: Rosen Encourages Investors to Inquire About Class Action Probe
------------------------------------------------------------------
WHY: Rosen Law Firm, a global investor rights law firm, announces
an investigation of potential securities claims on behalf of
shareholders of RH (NYSE: RH) resulting from allegations that RH
may have issued materially misleading business information to the
investing public.
SO WHAT: If you purchased RH securities you may be entitled to
compensation without payment of any out of pocket fees or costs
through a contingency fee arrangement. The Rosen Law Firm is
preparing a class action seeking recovery of investor losses.
WHAT TO DO NEXT: To join the prospective class action, go to
https://rosenlegal.com/submit-form/?case_id=12982 or call Phillip
Kim, Esq. toll-free at 866-767-3653 or email pkim@rosenlegal.com or
cases@rosenlegal.com for information on the class action.
WHAT IS THIS ABOUT: On February 3, 2023, after trading hours, RH
filed a current report on Form 8-K with the Securities & Exchange
Commission ("SEC"), which announced, in pertinent part, that its
"previously unaudited financial statements for the three months
ended April 30, 2022, the three and six months ended July 30, 2022,
and the three and nine months October 29, 2022 should no longer be
relied upon due to material unintentional errors in certain of
these financial periods with respect to our calculation of basic
and diluted net income per share."
Further, RH announced that "in connection with the restatement, we
determined that we had at least one material weakness in our
internal control over financial reporting during the Non-Reliance
Periods that continued to exist at January 28, 2023, the end of
fiscal 2022. In connection with the material weakness, we have
additionally concluded that our disclosure controls and procedures
are also not effective."
On this news, the price of RH's stock fell $25.19, or 7.3%, on
February 6, 2023.
WHY ROSEN LAW: We encourage investors to select qualified counsel
with a track record of success in leadership roles. Often, firms
issuing notices do not have comparable experience, resources or any
meaningful peer recognition. Be wise in selecting counsel. The
Rosen Law Firm represents investors throughout the globe,
concentrating its practice in securities class actions and
shareholder derivative litigation. Rosen Law Firm has achieved the
largest ever securities class action settlement against a Chinese
Company. Rosen Law Firm was Ranked No. 1 by ISS Securities Class
Action Services for number of securities class action settlements
in 2017. The firm has been ranked in the top 4 each year since 2013
and has recovered hundreds of millions of dollars for investors. In
2019 alone the firm secured over $438 million for investors. In
2020, founding partner Laurence Rosen was named by law360 as a
Titan of Plaintiffs' Bar. Many of the firm's attorneys have been
recognized by Lawdragon and Super Lawyers.[GN]
ROMEO POWER: Castleberg, et al., File Class Certification Bid
-------------------------------------------------------------
In the class action lawsuit re: Romeo Power Inc. Securities
Litigation, Case No. 1:21-cv-03362-LGS (S.D.N.Y.), the
Court-appointed Lead the Plaintiff Michael Castleberg and
additional the Plaintiffs Joshua Cante, Nathaniel Tapia, Artur
Chimchirian, and Van Nguyen, who together are proposed class
representatives, move the Court, for an Order:
1. Certifying this action pursuant to Rules 23(a) and (b)(3)
of the Federal Rules of Civil Procedure as a class action;
2. Defining the Class as:
"All persons and entities that purchased or otherwise
acquired publicly-traded securities of Romeo Power, Inc.
during the period October 5, 2020, through August 16,
2021, both dates inclusive (the "Class Period"), and were
damaged thereby."
Excluded from the Class are:
(i) the Defendants;
(ii) current and former officers, employees, and
directors of Romeo and RMG;
(iii) blood relatives and household members of any
person excluded under (i) or (ii); and
(iv) any entities affiliated with, controlled by, or
more than 10% owned by, any person or entity
excluded under (i) through (iii); and
(v) the legal representatives, heirs, successors, or
assigns of any person or entity excluded under (I)
through (iv).
3. Appointing Michael Castleberg, Joshua Cante, Nathaniel
Tapia, Artur Chimchirian, and Van Nguyen as Class
Representatives for the Class;
4. Appointing Glancy Prongay & Murray LLP as Class Counsel;
and
5. Granting such other and further relief as the Court deems
necessary and proper.
Romeo Power is a battery technology company that creates
energy-dense battery packs.
A copy of the Plaintiffs' motion dated March 1, 2023 is available
from PacerMonitor.com at https://bit.ly/3ZJmvvO at no extra
charge.[CC]
The Plaintiffs are represented by:
Kara M. Wolke, Esq.
Melissa C. Wright, Esq.
Gregory B. Linkh, Esq.
GLANCY PRONGAY & MURRAY LLP
1925 Century Park East, Suite 2100
Los Angeles, CA 90067
Telephone: (310) 201-9150
E-mail: kwolke@glancylaw.com
mwright@glancylaw.com
glinkh@glancylaw.com
- and -
Howard G. Smith, Esq.
LAW OFFICES OF HOWARD G. SMITH
3070 Bristol Pike, Suite 112
Bensalem PA 19020
Telephone: (215) 638-4847
- and -
Frank R. Cruz, Esq.
THE LAW OFFICES OF FRANK R. CRUZ
1999 Avenue of the Stars, Suite 1100
Los Angeles, CA 90067
Telephone: (310) 914-5007
E-mail: fcruz@frankcruzlaw.com
SEA COST: Faces Class Action Suit Over Real Estate Commissions
--------------------------------------------------------------
wral.com reports that a lawsuit filed against Sea Coast Realty,
Inc., claims the company retained millions in real estate
commissions that were owed to current and former agents.
The class action complaint was filed last month by four individuals
who had previously worked for Sea Coast Realty as real estate
brokers.
According to the suit, the company and agents entered an agreement
in which in any real estate services that resulted in a commission
being paid to Sea Coast, the company and plaintiffs were entitled
to a share based on an agreed-upon commission schedule.
"Plaintiffs understood that the six percent Coldwell Banker
Franchise Fee that was deducted from each sales commission was, in
fact, a six percent fee that would be paid to Sea Coast's
franchisor, Coldwell Banker," the filing states. [GN]
SIMON'S AGENCY: Court Dismisses Chaga FDCPA Suit Without Prejudice
------------------------------------------------------------------
Judge Gene E.K. Pratter of the U.S. District Court for the Eastern
District of Pennsylvania dismisses without prejudice the lawsuit
styled JASON CHAGA, Plaintiff v. SIMON'S AGENCY INC., Defendant,
Case No. 21-4110 (E.D. Pa.).
Apparently believing that too many choices means no choice, Jason
Chaga, on behalf of himself and similarly situated individuals,
accuses Simon's Agency Inc. of violating the Fair Debt Collection
Practices Act when it issued him a debt collection letter with two
different addresses on it. Mr. Chaga, somehow immobilized by
confusion because the letter listed two addresses for Simon's,
decided not to communicate by mail or phone to inquire or clarify
how he could dispute or pay his debt. Simon's moved for summary
judgment. Because Mr. Chaga has no standing to bring this suit, his
complaint is dismissed without prejudice for lack of subject matter
jurisdiction.
On Aug. 10, 2021, a creditor, Crozer (Cerner), placed Jason Chaga's
account with Simon's Agency Inc. for collection of a debt. Simon's
sent Mr. Chaga a debt collection letter, dated Aug. 11, 2021,
seeking payment of $64.73, the balance owed to Crozer (Cerner).
The letter included two addresses. The first address was the
remittance address of Simon's. The second was the headquarters
address of Simon's. The letter does not specify which address to
use when sending written disputes. The letter also provided the
website address and two telephone numbers for Simon's.
According to Simon's, both the Syracuse remittance and Liverpool
headquarters addresses can process correspondence received at
either address, including requests for validation and disputes
concerning a financial obligation, as well as any mailed payments.
The parties agree that the agency never received any payments or
written correspondence from Mr. Chaga at either the Syracuse
remittance or Liverpool headquarters addresses or via electronic
means, nor did Mr. Chaga make any telephone calls to the company
regarding his account. Mr. Chaga argues that the confusion caused
by the letter having the two addresses resulted in his inability to
dispute the debt, his loss of his validation rights under the
FDCPA, and the additional costs of lost time, money, and effort
spent reviewing the letter and fear of losing his validation
rights.
Mr. Chaga now seeks to bring a class action under the FDCPA against
Simon's, alleging that the two mailing addresses "confused" Mr.
Chaga regarding "how to properly dispute the debt" or where to send
any written disputes. He claims that he was misled to his detriment
by the statements in the dunning letter, and relied on the contents
of the letter to his detriment and that the letter violated 15
U.S.C. Sections 1692e, 1692f, and 1692g.
Simon's has moved for summary judgment, which Mr. Chaga opposes.
The Court heard oral argument, and the motion is ripe for
decision.
Simon's seeks summary judgment on standing grounds, arguing that
Mr. Chaga has not suffered a concrete and particularized injury in
fact. Simon's jurisdictional challenge is a factual attack, so the
Court may weigh the evidence submitted and need not accept Mr.
Chaga's allegations as true.
Judge Pratter finds that Mr. Chaga fails to show any concrete harm
that is closely related to an analogous common-law tort. Rather
than assert any monetary or reputational harm, Mr. Chaga claims
that his injuries include the loss of his validation rights under
the FDCPA and fear of losing those rights, loss of time spent
reviewing the letter, and confusion concerning where to send a
written dispute. Judge Pratter points out that these claims are too
metaphysical to usher them past the threshold of Article III
standing.
Mr. Chaga has not met his burden to establish Article III standing,
and thus, the Court lacks jurisdiction to hear this case. Hence,
the Court will dismiss the case without prejudice.
Even if the Court found Article III standing, Judge Pratter opines
that Mr. Chaga could not overcome the summary judgment challenge
because in any case he has not shown that the debt collection
letter violated any provision of the FDCPA.
The Simon's debt collection letter did not use deceptive means to
collect Mr. Chaga's debt, Judge Pratter explains. Moreover, Mr.
Chaga cannot overcome the facts presented by Simon's in an
affidavit of its Vice President of Operations, Chad Jansen, namely
that both the remittance address and the headquarters address would
have processed a debt dispute communication had Mr. Chaga sent one.
Simon's argues that disputes sent to either address are read and
processed.
Judge Pratter also finds that even though the debt collection
letter contained two addresses and did not expressly state where
written disputes should be sent for processing, there was no
overshadowing of the validation notice.
In his complaint, Mr. Chaga has not alleged any conduct in relation
to his Section 1692f claim beyond that which he alleged in relation
to his Sections 1692e and 1692g claims. His briefing in opposition
to the Simon's summary judgment motion does not point to any
evidence establishing unfair or unconscionable conduct under
Section 1692f. Judge Pratter says no reasonable juror could
conclude that the conduct of Simon's violated Section 1692f, so Mr.
Chaga's claim under this provision of the FDCPA would not survive
summary judgment.
Mr. Chaga has not established a concrete injury in fact, so he
lacks Article III standing to bring this claim, Judge Pratter
opines. Accordingly, the case is dismissed without prejudice for
lack of standing. Simon's Motion for Summary Judgment is denied,
but only because it is moot.
A full-text copy of the Court's Memorandum dated Feb. 23, 2023, is
available at https://tinyurl.com/yeajmh2t from Leagle.com.
SQUARETRADE INC: $958K Class Settlement in Shuman Gets Final Nod
-----------------------------------------------------------------
In the class action lawsuit captioned as MICHAEL SHUMAN, et al., v.
SQUARETRADE INC., Case No. 3:20-cv-02725-JCS (N.D. Cal.), the Hon.
Judge Joseph C. Spero entered an order granting motion for final
approval of settlement and for attorney's fees, litigation costs,
and service awards.
-- The Court grants the parties' request for final approval of
the Settlement Agreement and awards $958,681.61 in
attorneys' fees, $41,318.39 in costs and $5,000 each to
named the Plaintiffs Michael Shuman, Kathleen Abbott, and
Tommy Gonzales.
-- The Clerk is instructed to enter judgment consistent with
the order.
The parties in this case have entered into a class action
settlement. Following preliminary approval of the settlement by the
Court, notice was sent to class members, who were given the
opportunity to object to the settlement or opt out and notice that
the Court would be holding a fairness hearing and instructions on
how to participate.
Under the Settlement Agreement, the Settlement Class consists of
two subclasses:
-- the Fast Cash Subclass and the SKU-cap Subclass.
The Fast Cash Subclass is defined as follows:
"Any person who, during the Class Period, (i) submitted a
claim for coverage under a Protection Plan, and (ii) whose
claim was resolved via a Fast Cash payment from the
Defendant."
SKU-cap Subclass is defined as:
"Any person who, during the Class Period, (i) submitted a
claim for coverage under a Protection Plan, (ii) resolved
the claim by receiving a monetary payment from the
Defendant, and (iii) received less than the amount the
person should have received were it not for the SKU-cap
Error."
The Settlement Class excludes "the judge approving the
Settlement and his or her immediate family; the Defendant;
any entities in which the Defendant has a controlling
interest or which have a controlling interest in the
Defendant; the officers, directors, employees, affiliates
and attorneys of the Defendant, and the immediate family
members of any such person; and any person who has
submitted a timely and valid Opt-Out Request."
The Class Period is "the time period between April 20,
2016, through June 27, 2022."
SquareTrade Inc. is an American extended warranty service provider
for consumer electronics and appliances
A copy of the Court's order dated March 1, 2023 is available from
PacerMonitor.com at https://bit.ly/3JvCRCE at no extra charge.[CC]
SUEZ WTS SERVICES: S.D. California Refuses to Remand Bulnes Suit
----------------------------------------------------------------
Judge Cynthia Bashant of the U.S. District Court for the Southern
District of California denies the Plaintiff's motion to remand
proceedings to state court in the lawsuit captioned MARTIN BULNES,
individually, and on behalf of other members of the general public
similarly situated, Plaintiff v. SUEZ WTS SERVICES USA, INC.,
Defendant, Case No. 22-cv-01154-BAS-AHG (S.D. Cal.).
Defendant Suez WTS Services USA, Inc., removed this case from the
Superior Court of the State of California for the County of San
Diego on Aug. 5, 2022, asserting federal jurisdiction exists under
the Class Action Fairness Act of 2005 ("CAFA"). The Plaintiff filed
a motion to remand, arguing the Defendant's Notice of Removal fails
to show that CAFA's amount in controversy requirement has been
satisfied. The Defendant filed an Opposition and the Plaintiff
replies.
The Defendant employed the Plaintiff as a Service Technician, an
hourly non-exempt employee, from approximately December 2019 to
February 2021. The Plaintiff alleges that the Defendant denied him
and other employees the benefits of the California Labor Code and
the Industrial Welfare Commission Wage Orders. He alleges that the
Defendant failed to pay meal and rest period premiums, furnish
final wages in a timely manner, pay regular and overtime wages,
provide accurate and itemized wage statements, keep requisite
payroll records, and reimburse employees for business expenses.
The Plaintiff asserts these claims on behalf of all current and
former hourly-paid or non-exempt employees who worked for the
Defendant within the State of California at any time during the
period from four years preceding Aug. 5, 2022, to final judgment
and who reside in California. He proposes three subclasses: (1) all
class members, who failed to receive overtime, (2) those subject to
the Defendant's rounding policy, and (3) those required to stay on
the Defendant's premises during rest breaks.
At issue is whether the Defendant plausibly alleges that CAFA's
amount in controversy requirement is met.
To determine the amount in controversy, the Defendant makes
assumptions based upon Human Resources Manager John Couch's
Declaration and the Plaintiff's Complaint. The Defendant
approximates the amount in controversy using the facts provided in
Mr. Couch's Declaration addressing the standard workday and week,
the number of non-exempt employees, and the average minimum wage.
The Defendant's estimation for only the unpaid overtime and meal
and rest period violations claims amounts to $6,280,877.28, with an
additional $1,811,420.70 proposed for attorney's fees.
Therefore, the Court focuses on these claims when addressing
Plaintiff's arguments below, because if established, these claims
would exceed the $5 million threshold.
Judge Bashant notes that the Plaintiff mounts only a facial attack
on the Defendant's proposed violation rate, because he fails to
attack the rate's factual underpinnings. Judge Bashant finds the
Defendant's proposed violation rate is plausible, making the
Plaintiff's attack unsuccessful.
Finally, the Court considers the Defendant's inclusion of
attorney's fees in its amount in controversy assessment. The
Defendant argues it is entitled to include the putative class
members' attorney's fees in its amount in controversy.
The Plaintiff contends that the Defendant's calculations are
unsubstantiated, and cites Galt G/S v. JSS Scandinavia, which held
that attorney's fees can only be counted towards the amount in
controversy if an underlying statute authorizes an award of
attorneys' fees, either with mandatory or discretionary language.
The Defendant fails to provide any statutes that authorize
including attorney's fees, so the Court finds the Defendant does
not meet its burden.
Hence, the Plaintiff mounts a successful facial attack on the
Defendant's inclusion of attorney's fees in its amount in
controversy assessment.
Overall, the Court rejects the Plaintiff's challenges to the
Defendant's reliance on Mr. Couch's Declaration and the Defendant's
proposed violation rate, but agrees that the Defendant did not meet
its burden to include attorney's fees in its assessment. However,
even without attorney's fees, the Defendant's amount in controversy
calculation still surpasses the $5 million required by CAFA.
Because the Defendant has met its burden of establishing federal
subject matter jurisdiction over this putative class action
pursuant to CAFA, the Plaintiff's Motion to Remand is denied.
For the reasons set forth, the Court finds that it has subject
matter jurisdiction over this action pursuant to CAFA. Accordingly,
the Court denies the Plaintiff's Motion to Remand.
A full-text copy of the Court's Order dated Feb. 23, 2023, is
available at https://tinyurl.com/ycx7pfd5 from Leagle.com.
SYNGENTA AG: Post-Judgment Attys.' Fees Orders in Corn Suit Upheld
------------------------------------------------------------------
In the cases, In re: SYNGENTA AG MIR 162 CORN LITIGATION
(Toups/Coffman Plaintiffs' Counsel) In re: SYNGENTA AG MIR 162 CORN
LITIGATION (Kansas Common Benefit Firms) In re: SYNGENTA AG MIR 162
CORN LITIGATION (Byrd/Shields Group) In re: SYNGENTA AG MIR 162
CORN LITIGATION (Johnson Becker, PLLC) In re: Syngenta AG MIR162
(Hossley-Embry Group) In re: SYNGENTA AG MIR 162 CORN LITIGATION
(Law Office of Craig Eiland, P.C.) In re: SYNGENTA AG MIR 162 CORN
LITIGATION (Demerath Group), Case Nos. 19-3008, 19-3022, 19-3079,
19-3176, 19-3280, 19-3032, 20-3002, 19-3174, 19-3175, 19-3178,
19-3279, 19-3284 (10th Cir.), the U.S. Court of Appeals for the
Tenth Circuit affirms the Kansas district court's post-judgment
attorneys' fees orders.
The appeals at issue stem from various lawsuits filed against
Syngenta. Syngenta commercialized and released two genetically
modified ("GMO") corn seeds under the brand names Agrisure Viptera
and Agrisure Duracade before obtaining China's regulatory approval
to import such genetically modified seeds. After discovering the
Syngenta GMO corn seeds in its American imports, China closed its
markets to American corn, depressing corn prices and thereby
injuring producers. Beginning in 2014, corn farmers and others in
the corn industry filed thousands of lawsuits against Syngenta in
several federal and state jurisdictions; these suits took various
forms, including class actions, mass tort actions, and individual
actions.
In December 2014, the Judicial Panel on Multidistrict Litigation
consolidated hundreds of these suits into an MDL centered in the
Kansas district court. A similar process occurred in Minnesota,
where thousands of suits were consolidated in a state court
("Minnesota state court"). And finally, similar suits were
litigated in a court in the U.S. District Court for the Southern
District of Illinois.
In an order entered on Jan. 22, 2015, the Kansas district court
appointed several attorneys as "co-lead counsel" for the Kansas
MDL. On the Minnesota front, firms like Watts Guerra LLP, along
with several others, brought thousands of individual and class
action lawsuits in Minnesota state court against Syngenta. The
Minnesota state court also appointed certain counsel to a Minnesota
Plaintiffs' Executive Committee. Attorneys from Watts Guerra and
the Paul Byrd Law Firm, PLLC were among the several appointees.
Meanwhile, in Illinois, multiple suits percolated through state and
federal court.
In September 2016, after an evidentiary hearing, the Kansas
district court certified eight state-wide classes to pursue
state-law tort and statutory claims. Following a three-week jury
trial of these state-law claims in June 2017, one of the Kansas
classes obtained a $217.7 million verdict against Syngenta. This
was the only completed class trial across the three jurisdictions,
although one class trial was started, but not completed, in
Minnesota.
Following the Kansas jury verdict, Syngenta expressed renewed
interest in pursuing a global settlement of all claims. Settlement
negotiations initially began in March 2016 -- before the state-wide
class certifications -- and the Kansas district court, along with
its Minnesota and Illinois counterparts, appointed Ellen Reisman as
the Special Master for Settlement in the Syngenta litigation ("the
Kansas Special Master"). Two months after the June 2017 class
action trial, the Kansas district court appointed a Plaintiffs'
Settlement Negotiating Committee ("PNC") to work toward a
settlement with Syngenta. The PNC included representatives of all
the major plaintiffs' constituencies. Facing the risk of similar
losses in Minnesota and other venues that could collectively total
billions of dollars, Syngenta committed to settlement by late
2017.
On Feb. 23, 2018, a class of farmers, certain grain handling
facilities and ethanol production facilities, and various Syngenta
entities reached a nationwide class action settlement that resolved
the claims. Syngenta agreed to pay a total of $1.51 billion in
exchange for the release of all claims relating to the sale and
marketing of its GMO corn products.
On April 10, 2018, the Kansas district court granted preliminary
approval of the Settlement. The court then tasked the Kansas
Special Master with issuing a report and recommendation (R&R) on
allocation of the aggregate attorneys' fee award, which she issued
on Nov. 21, 2018. The Kansas Special Master also recommended that
$2,782,500 in service awards be granted to firms that requested
them.
On Dec. 7, 2018, the Kansas district court entered its Aggregate
Fee Order and Final Order and Judgment. The Judgment memorialized
the court's approval of the Settlement, including certification of
a global settlement class. The Aggregate Fee Order awarded
one-third of the gross settlement amount -- i.e., $503,333,333.33
out of the $1.51 billion settlement fund -- as attorneys' fees. The
Aggregate Fee Order made clear that the allocation of the aggregate
attorneys' fee award remained pending and incomplete. Then, in a
Fee Allocation Order entered on Dec. 31, 2018, following an
objection period and a hearing, the Kansas district court largely
adopted the Nov. 21, 2018, R&R on attorneys' fee award allocation
issued by the Kansas Special Master.
The appeals concern attorneys' fees awarded following a historic
class action settlement. Numerous Plaintiffs from multiple
different states -- but, mainly, Kansas, Minnesota, and Illinois --
sued Syngenta, an agricultural company. The suits against Syngenta
were organized into complex, federal multi-district litigation
("MDL") based in a court in the U.S. District Court for the
District of Kansas. Syngenta ultimately settled with the class
action Plaintiffs. The Kansas district court allocated
approximately $503 million in attorneys' fees and expense awards
stemming from the settlement to the myriad firms participating in
the class action.
The Appellants -- the various Plaintiffs' lawyers and law firms
that took part in the MDL against Syngenta -- challenge numerous
orders published by the Kansas district court concerning the
apportionment and allocation of that $503 million fee pie. Having
concluded it possessed significant authority to craft the
allocation of attorneys' fees in the most reasonable manner, the
Kansas district court had adopted a two-stage, "general approach"
of an appointed special master to the allocation of the attorneys'
fee award -- by which the award is first allocated among the three
common benefit pools [i.e., for Kansas, Minnesota, and Illinois]
and the IRPA pool [i.e., the pool for individually retained private
attorneys] ("Fee Allocation Order"), and then, second, disbursed to
individual firms.
The Appellees -- also lawyers and law firms from Kansas, Minnesota,
and Illinois, that acted as co-lead counsel ("CLCs" or
"Leadership") and by-and-large, spearheaded the litigation against
Syngenta in the three main fora -- oppose the Appellants'
arguments, and they ask the Tenth Circuit to affirm the Kansas
district court's fee-allocation orders.
The Kansas district court and the parties themselves have largely
grouped the Appellant law firms and attorneys and their respective
contentions into five pools. They are Kansas Appellants
(Toups/Coffman and Hossley-Embry); Minnesota Appellants (Byrd and
Shields); Illinois Appellants (Eiland and Demerath); Byrd and
Shields; and Johnson Becker.
The Apellants have specifically challenged various facets of the
Kansas district court's orders as to the fee allocation process. At
bottom, the following orders are at issue: (1) the Dec. 31, 2018,
Fee Allocation Order; (2) the March 2019 Kansas Pool Allocation
Order; (3) the July 2019 Minnesota Pool Allocation Order; (4) the
November 2019 Illinois Pool Allocation Order; and (5) the July 2019
Expense Order.
More specifically, Kansas Appellants, Minnesota Appellants, and
Johnson Becker challenge the Kansas district court's Dec. 31, 2018,
Fee Allocation Order. The Kansas Appellants also target the March
2019 Kansas Pool Allocation Order. Proceeding merely as Byrd and
Shields, and not as Minnesota Appellants, Byrd and Shields target
the July 2019 Minnesota Pool Allocation Order, which Johnson Becker
also appeals.
For their part, Illinois Appellants bring a narrow challenge to the
Kansas district court's November 2019 Illinois Pool Allocation
Order. And, finally, proceeding not as Minnesota Appellants but as
"Byrd and Shields," Byrd and Shields appeal the Kansas district
court's July 2019 Expense Order.
The Tenth Circuit holds that the factual background illustrates
that many of the Appellants failed to lodge appropriate objections
before the Kansas district court. Furthermore, several of the
Appellants failed to raise or adequately present arguments in their
opening briefs. Consequently, the waiver and forfeiture doctrines
have some bearing on the resolution of these appeals, and the Tenth
Circuit thus offers a general overview of these preservation
doctrines. With this standard of review and preservation doctrines
in mind, the Tenth Circuit then turns to each party's specific
appellate issues. Ultimately, it upholds the Kansas district
court's post-judgment attorneys' fees orders.
A full-text copy of the Court's Feb. 28, 2023 Order is available at
https://tinyurl.com/59zf4tf9 from Leagle.com.
Eric Alan Isaacson, Law Office of Eric Alan Isaacson, La Jolla,
California (Mitchell A. Toups -- matoups@wgttlaw.com -- Weller,
Green Toups & Terrell, LLP, Beaumont, Texas; Richard L. Coffman --
admin@coffmanlawfirm.com -- The Coffman Law Firm, Beaumont, Texas;
D. Allen Hossley -- allen@hossleyembry.com -- Hossley-Embry, LLP,
Dallas, Texas, with him on the briefs), the Toups/Coffman
Plaintiffs' Counsel & Hossley-Embry for the Kansas Pool
Appellants.
Christina J. Nielsen, Nielsen Law Firm, Woodbridge, Virginia,
Jeffrey A. Lamken -- jlamken@mololamken.com -- Eric R. Nitz --
enitz@mololamken.com -- and Caleb Hayes-Deats --
chayes-deats@mololamken.com -- MoloLamken LLP, Washington, D.C.,
William P. Ferranti, The Ferranti Firm LLC, Portland, Oregon, and
Thomas J. Wiegand and Matthew J. Fisher, MoloLamken, Chicago,
Illinois, for the Minnesota Appellants Watts Guerra, LLP, Paul Byrd
Law Firm, PLLC, and Shields Law Group, LLC.
David Campbell -- dcampbell@808west.com -- O'Hanlon, Demerath &
Castillo, PC, Austin, Texas (Justin B. Demerath --
jdemerath@808west.com -- O'Hanlon, Demerath & Castillo, PC, Austin,
Texas; A. Craig Eiland, The Law Offices of A. Craig Eiland, PC,
Austin, Texas, with him on the briefs), for the Illinois
Appellants, and Clayton A. Clark and Scott A. Love, Clark Love
Hutson, Houson, Texas, and Martin J. Phipps, Phipps Anderson Deacon
LLP, San Antonio, Texas, and Peter J. Flowers, Meyers & Flowers,
LLC, St. Charles, Illinois, joined in the supplemental brief for
The Clark/Phipps Group.
Timothy J. Becker -- tbecker@johnsonbecker.com -- ( Michael K.
Johnson -- mjohnson@johnsonbecker.com -- with him on the briefs)
Johnson Becker, PLLC, Saint Paul, Minnesota, for Appellants.
Bradley T. Wilders -- wilders@stuevesiegel.com -- Stueve Siegel
Hanson LLP, Kansas City, Missouri, and William Lewis Garrison, Jr.
-- wlgarrison@hgdlawfirm.com -- Heninger Garrison Davis, LLC,
Birmingham, Alabama (Patrick J. Stueve and Rachel Schwartz, Stueve
Siegel Hanson LLP, Kansas City, Missouri; Don M. Downing and
Gretchen Garrison , Gray, Ritter & Graham, P.C., St. Louis,
Missouri; William B. Chaney -- wchainey@grayreed.com -- and Drew
York, Gray Reed & McCraw, LLP, Dallas, Texas; Scott Powell , Bruce
McKee and Tempe Smith, Hare Wynn Newell & Newton, Birmingham,
Alabama; the MDL Co-Lead Plaintiffs' Counsel on behalf of Kansas
Common Benefit; and Daniel E. Gustafson --
dgustafson@gustafsongluek.com -- Gustafson Gluek PLLC, Minneapolis,
Minnesota; Lewis A. Remele, Jr., Bassford Remele, A Professional
Association, Minneapolis, Minnesota and William R. Sieben, Schwebel
Goetz & Sieben PA, Minneapolis, Minnesota the Minnesota Co-Lead
Counsel; and Christopher A. Seeger -- cseeger@seegerweiss.com --
Stephen A. Weiss -- cseeger@seegerweiss.com -- Diogenes P. Kekatos,
Seeger Weiss LLP, Ridgefield Park, New Jersey, the Settlement Class
Counsel; Christopher B. Hood -- ahood@pomlaw.com -- Heninger
Garrison Davis, LLC, Birmingham, Alabama, the Illinois Mass Action
Lead Counsel, with them on the briefs) for the Joint Appellees.
TAKEDA PHARMACEUTICALS: Loses Class Cert. Bid in Value Drug Suit
----------------------------------------------------------------
In the case, VALUE DRUG COMPANY v. TAKEDA PHARMACEUTICALS, U.S.A.,
INC., et al., Civil Action No. 21-3500 (E.D. Pa.), Judge Mark A.
Kearney of the U.S. District Court for the Eastern District of
Pennsylvania denies the wholesaler's renewed motion for class
certification.
A pharmaceutical wholesaler again asks the Court to certify it as a
class representative for 48 other entities who allegedly paid too
much for colchicine they purchased from the patent holder and
generic manufacturers from Sept. 15, 2017 until Dec. 1, 2020. The
wholesaler ascribes the higher colchicine prices to a conspiracy
between the brand name patent owner and three generics who settled
patent invalidity claims shortly before trials before Judge Sue L.
Robinson allegedly in exchange for a staged entry into the
colchicine market while maintaining the patent to restrain later
generic manufacturers from entering the market and lower the
price.
Pharmaceutical wholesaler Value Drug Co. is a large pharmaceutical
wholesaler with over $270 million in annual revenues. It claims it,
and 48 other known entities, paid inflated prices for colchicine
tablets from Sept. 15, 2017 until Dec. 1, 2020. It claims the brand
manufacturer and colchicine patent owner Takeda conspired with
three generic colchicine manufacturers Par Pharmaceutical Inc.,
Amneal Pharmaceutical LLC, and Watson Laboratories, Inc., to settle
the generics' patent invalidity claims on the eve of three trials
before the Honorable Sue L. Robinson in late 2015 and early 2016.
Value Drug claims this overarching conspiracy captured in
settlement agreements allowed staged entry of the three generic
manufacturers into the colchicine market causing the 49 known
purchasers of either branded or the generic versions of colchicine
to pay inflated prices to Takeda and each of the three generic
manufacturers. It alleges this conspiracy inflated the four
manufacturers' profits they would not have enjoyed had Judge
Robinson invalidated Takeda's patent shortly after the scheduled
trials.
Takeda obtained Food and Drug Administration approval for its
branded Colcrys -- a tablet for colchicine -- to treat Familial
Mediterranean Fever and prevent gout in July 2009. This approval
cleared the market of existing colchicine sellers and caused
dramatic price increase. Par, then Amneal, and then Watson filed
Abbreviated New Drug Applications with the Food and Drug
Administration seeking approval for their generic versions of
Colcrys. They certified Takeda's patents were either invalid or not
infringed by the generics. Takeda sued Par, Amneal, and Watson for
patent infringement in the District of Delaware. It settled with
each on the eve of trial before Judge Robinson including with
Watson on the first day of trial.
Value Drug alleges Takeda, Par, Amneal, and Watson conspired to
"restrict output and restrain competition" by preventing generic
colchicine tablets from coming to market by agreeing to withdraw
the invalidity claims in the three cases. Takeda, Par, Amneal, and
Watson allegedly ordered the market by staggering their own entry
and conspiring to hold off the 'third wave' of generics consisting
of generic drug manufacturers who had not yet filed Abbreviated New
Drug Applications from entering the market for as long as possible
to prevent the incremental price collapse which occurs with each
generic entrant. Value Drug alleges this single horizontal
conspiracy resulted in overcharges and inflated prices for Colcrys
brand and generic colchicine tablets from Sept. 15, 2017 until Dec.
1, 2020.
Value Drug today asks the Court to allow it to present these
arguments through class action where it will represent the other
known 49 other large pharmaceutical purchasers (19 of which have
substantially larger annual revenues than Value Drug).
Value Drug seeks to certify a class of 49 purchasers of brand and
generic colchicine tablets seeking to recover overcharges for
inflated prices for branded colchicine (known as Colcrys) and
generic colchicine tablets because of an antitrust conspiracy to
"stave off a 'third wave' of Abbreviated New Drug Application
filers for as long as possible to prevent incremental price
decrease thereby reducing each sellers' market share and profits"
in the colchicine market. It claims co-conspirators include Takeda
and generic-brand competitors Par, Amneal, and Watson.
Judge Kearney is not addressing the merits of this overarching
conspiracy claim. He is instead addressing whether he can certify a
class of the known 49 entities who purchased an identified amount
of colchicine with identified individual damages described by known
witnesses as outlined in the wholesaler's trial plan. He addresses
the numerosity issue and has similar concerns regarding Value
Drug's failure to adduce evidence in support of class
certification.
The wholesaler argues the Court should essentially presume it has
shown impracticability of joinder of claims because there are over
40 identified colchicine purchasers. Value Drug detrimentally
relies on the fact the proposed class exceeds 40 members without
evidence joinder is impractical.
Judge Kearney declines to presume unique class treatment based on a
number. He recognizes the risk of impracticable joinder may
increase with more purchasers. But this is not the end of the test.
The issue is whether joinder is impracticable; it is not whether
class treatment is easier for the counsel and the Court. It would
almost always be easier to work with one party and lawyer as a
matter of judicial economy.
Judge Kearney instead applies the rigorous scrutiny the Court of
Appeals requires as to each aspect of the class certification
process including whether joinder of up to a maximum of 49 entities
is impracticable. And he could readily see a situation where the
evidence may pass the rigorous scrutiny. But he cannot speculate.
The wholesaler does not adduce evidence of why the joinder of no
more than 49 known-entity purchasers of colchicine is
impracticable.
Judge Kearney must again deny the wholesaler's motion for class
certification as it did three months ago for basically the same
reason: the wholesaler must adduce evidence in support of its class
certification theories. The Court has no evidence allowing it to
find impracticability of joinder of the known colchicine purchasers
from Sept. 15, 2017 until Dec. 1, 2020.
Therefore, Judge Kearney denies the wholesaler's renewed motion for
class certification under Rule 23(a)(1) because Value Drug did not
satisfy the Court's rigorous analysis necessary to establish the
impracticability of joinder by a preponderance of the evidence. He
declines to opine on the remaining Rule 23(a) requirements or
whether Value Drug met Rule 23(b)(3)'s "predominance" and
"superiority" requirements.
A full-text copy of the Court's Feb. 28, 2023 Memorandum is
available at https://tinyurl.com/vct4yerm from Leagle.com.
TAPESTRY INC: Brooks Must File Class Certification Bid by July 11
-----------------------------------------------------------------
In the class action lawsuit captioned as Brooks v. Tapestry, Inc.,
Case No. 2:21-cv-00156 (E.D. Cal.), the Hon. Judge Dale A. Drozd
entered an order confirming that fact discovery in the case has
closed and the deadline to file dispositive motions has passed.
Accordingly, the court sets the following dates:
1. The Plaintiff's motion for class July 11, 2023
certification shall be filed no
later than:
2. The filing deadlines for opposition and reply briefs shall
be governed by the Local Rules.
3. In addition, the court sets a Final Dec. 12, 2023
Pretrial Conference on:
4. Jury Trial set for: Feb. 21, 2024
The Initial Pre-Trial Scheduling Order did not set a deadline for
the Plaintiff to file a motion for class certification.
Although the parties filed a21 scheduling report on July 14, 2021
proposing a deadline of Aug. 15, 2022 for filing such a motion, the
court did not adopt the parties' proposal; indeed, the court did
not issue an amended or supplemental scheduling order to address
any of the dates proposed by the parties in that report.
While the court recognizes that this might have led to some
confusion for the parties, they had ample opportunity to seek
clarification from the court prior to the expiration of relevant
deadlines.
The nature alleges violation of the Americans with Disabilities
Act.
Tapestry is an American multinational luxury fashion holding
company. It is based in New York City and is the parent company of
three major brands: Coach New York, Kate Spade New York and Stuart
Weitzman. Originally named Coach, Inc., the business changed its
name to Tapestry on October 31, 2017.[CC]
TERRAN ORBITAL: Lead Plaintiff Bids in Mullen Suit Due April 18
---------------------------------------------------------------
Judge Jesse M. Furman of the U.S. District Court for the Southern
District of New York rules that the motion to serve as lead
plaintiff is due on April 18, 2023, in the lawsuit captioned
JEFFREY MULLEN, individually and on behalf of all others similarly
situated, Plaintiff v. TERRAN ORBITAL INC., et al., Defendants,
Case No. 23-CV-1394 (JMF) (S.D.N.Y.).
On Feb. 17, 2023, the Plaintiff filed a class action lawsuit on
behalf of Terran Orbital, Inc. ("Terran Orbital") shareholders, who
received their shares through Terran Orbital's merger with a
special purpose acquisition company. The complaint alleges
violations of Sections 11(a) and 12(a)(2) of the Securities Act of
1933 ("1933 Act").
As explained in the Court's Feb. 21, 2023 Order, the Private
Securities Litigation Reform Act (the "PSLRA") requires that within
twenty days of the filing of the complaint, the Plaintiff will
cause to be published, in a widely circulated national
business-oriented publication or wire service, a notice advising
members of the purported plaintiff class of the pendency of the
action, the claims asserted therein, and the purported class
period. The PSLRA also provides that not later than 60 days after
the date on which the notice is published, any member of the
purported class may move the court to serve as lead plaintiff of
the purported class.
In addition, the Act requires that not later than 90 days after the
date on which notice is published, the Court will consider any
motion made by a purported class member in response to the notice,
and will appoint as lead plaintiff the member or members of the
purported plaintiff class that the Court determines to be most
capable of adequately representing the interests of class members.
In the event that more than one action on behalf of a class
asserting substantially the same claim or claims has been filed,
and any party has sought to consolidate those actions for pretrial
purposes or for trial, the Court will not appoint a lead plaintiff
until after a decision on the motion to consolidate is rendered.
The Plaintiff's counsel notified the Court that the required notice
was published on Feb. 17, 2023. Members of the purported class,
therefore, have until April 18, 2023, to move the Court to serve as
lead plaintiffs. Opposition to any motion for appointment of lead
plaintiff will be served and filed by May 2, 2023. No replies may
be filed without prior leave of Court.
Finally, a conference will be held on May 10, 2023, at 4:00 p.m.,
to consider any motions for appointment of lead plaintiff and lead
counsel and for consolidation.
If an amended complaint or a related case is filed prior to
appointment of a lead plaintiff, the Plaintiff's counsel will,
within one week, submit a letter to the Court identifying any
differences between the allegations in the new complaint(s) and the
allegations in the original complaint (including to any differences
in the claims asserted and the relevant class periods) and showing
cause why the Court should not order republication of notice under
the PSLRA and set a new deadline for the filing of motions for
appointment.
Judge Furman further ordered that the named Plaintiffs will
promptly serve a copy of this Order on each of the Defendants.
A full-text copy of the Court's Order dated Feb. 23, 2023, is
available at https://tinyurl.com/4dfu7u64 from Leagle.com.
TWIST BIOSCIENCE: Faces Peters Shareholder Suit in CA Court
-----------------------------------------------------------
Twist Bioscience Corporation disclosed in its Form 10-Q report for
the quarterly period ended December 31, 2022, filed with the
Securities and Exchange Commission on February 7, 2023, that on
December 12, 2022, a putative securities class action lawsuit
captioned "Peters v. Twist Bioscience Corporation, et al.," Case
No. 22-cv-08168 (N.D. Cal.) was filed in federal court in the
Northern District of California.
Said action names the company and certain of its officers as
defendants and asserts claims under sections 10(b) and 20(a) of the
Securities Exchange Act of 1934, and Rule 10b-5 promulgated
thereunder. The Securities Class Action's claims are based in large
part on allegations made in a report issued on November 15, 2022 by
Scorpion Capital concerning, among things, the company's DNA chip
technology and accounting practices.
The initial complaint filed in the Securities Class Action alleges
that various statements that the defendants made between December
13, 2019 and November 14, 2022 were materially false and misleading
in light of the allegations in the Scorpion Report, and seeks
unspecified damages on behalf of all persons and entities who
purchased or acquired Twist securities during an alleged class
period that begins on December 13, 2019 and ends on November 14,
2022, as well as certain other costs.
Twist Bioscience Corporation synthetic biology and genomics company
based in California.
UHG I LLC: Wins Bid to Compel Arbitration; Court Tosses Ford Suit
-----------------------------------------------------------------
In the lawsuit captioned KEITH FORD, Plaintiff v. UHG I, LLC, et
al., Defendants, Case No. 22-cv-00840-LKG (D. Md.), Judge Lydia Kay
Griggsby of the U.S. District Court for the District of Maryland
grants the Defendants' motion to compel arbitration, and dismisses
the complaint.
Defendants, UHG I, LLC ("UHG") and United Holdings Group, LLC
("UHGL"), have moved to compel arbitration and to either stay or
dismiss the putative class action matter, pursuant to the Federal
Arbitration Act ("FAA").
In the putative class action, the Plaintiff alleges that the
Defendants violated the Fair Debt Collection Practices Act (the
"FDCPA"), the Maryland Consumer Debt Collection Act (the "MCDCA")
and the Maryland Consumer Protection Act (the "MCPA") by engaging
in certain illegal debt-collection activities, including hiring a
third-party debt-collector that placed excessive calls and harassed
the Plaintiff.
The Plaintiff is a resident of Anne Arundel County, Maryland. UHGL
is a Delaware limited liability company and its principal place of
business is located in New York. UHG is also a Delaware limited
liability company and its principal place of business is located in
New York. The Defendants are in the business of debt-collection.
On Aug. 14, 2018, the Plaintiff obtained a personal loan (the
"Loan") in the amount of $15,000 via a website operated by
LendingClub Corporation, an online marketplace that connects
borrowers and investors. The Loan was issued by WebBank on Aug. 23,
2018, and LendingClub serviced the loan.
The Loan was subsequently transferred on multiple occasions. First,
WebBank transferred the Loan to LendingClub on Aug. 17, 2018. On
Aug. 27, 2018, LendingClub transferred a fraction of the Loan to an
entity known as LC Trust I. Thereafter, on Oct. 23, 2020,
LendingClub and LC Trust I transferred the Loan to UHG.
After UHG acquired the Loan, the Plaintiff defaulted on the Loan.
On Nov. 9, 2021, UHG brought a debt-collection action against the
Plaintiff in the District Court of Maryland.
The Plaintiff alleges in his action that, in late August or
September 2021, he began receiving frequent and rude
debt-collection calls concerning the Loan.
Relevant to the pending motion to compel, the Plaintiff signed a
borrower agreement (the "Borrower Agreement") with WebBank as part
of his loan application. The Borrower Agreement contains, among
other things, an arbitration provision.
The Plaintiff commenced this putative class action in the Circuit
Court for Anne Arundel County on Feb. 21, 2022. The Defendants
removed the case to this Court on April 7, 2022.
On July 15, 2022, the Defendants filed a motion to compel
arbitration and to either dismiss or stay this matter, and a
memorandum in support thereof. Thereafter, the Plaintiff filed a
response in opposition to the Defendants' motion on Aug. 8, 2022.
The Defendants filed a reply brief on Aug. 22, 2022.
Judge Griggsby states that a careful reading of the Borrower
Agreement shows that the parties have entered into a binding
agreement that requires the Plaintiff to address his claims in this
action through arbitration. And so, for these reasons, the Court:
(1) grants Defendants' motion to compel arbitration; and (2)
dismisses the complaint.
Judge Griggsby opines that: (a) the parties have entered into a
valid arbitration agreement, (b) UHG has shown that it may enforce
the arbitration agreement, and (c) the Plaintiff has not shown that
UHG waived the right to arbitrate.
Because the Court concludes that the arbitration provision in the
Borrower Agreement is valid and enforceable under Maryland law, the
Court considers as a final matter whether to stay or dismiss this
matter. Because all issues related to the Plaintiff's FDCPA, MCDCA
and MCPA claims fall within the broad arbitration provision in
paragraph 21(a) of the Borrower Agreement, the Court must dismiss
the complaint.
In sum, a careful reading of the Borrower Agreement shows that the
parties have entered into a binding agreement that requires the
Plaintiff to address his claims in this action through
arbitration.
And so, for these reasons, the Court grants the Defendants' motion
to compel arbitration, and dismisses the complaint. Judgment will
be entered accordingly. Each party to bear its own costs.
A full-text copy of the Court's Memorandum Opinion and Order dated
Feb. 23, 2023, is available at https://tinyurl.com/3kzyss6k from
Leagle.com.
UNITED STATES: Ali Sues Over Injuries From Military Forces' Strikes
-------------------------------------------------------------------
Amin Allawi Ali, Ayman Mhamad Saleh Al Sanabani, Khaled Ali Salem
Chaib, Ali Ahmad Ali Abad Al Roweishan, Mohamad Ali Hamoud Al
Roweishan, Fatima Mhamad Al Bayahi AL Kharabi, and Ms. Yousra Abd
El Aziz Mhamad Aamad, individually and on behalf of proposed Class
Members v. Mohamed Ben Zayed Al-Nahyan; Mohammed bin Rashid Al
Maktoum; Mohamed Bin Salman Al Saoud; Hamad Mohamed Thani Al
Rumaithi; Abdulrahman Ben Saleh Al-Bunyan; Fayyadh Al-Ruwaili;
Raytheon Technologies Corporation; Lockheed Martin Corporation;
General Dynamics Corporation; Mr. Gregory J Hayes, as the CEO of
Raytheon; Mr. Jim Taicley, as the CEO of Lockheed Martin; Ms.
Pheobe Novakovic, as the CEO of General Dynamics; Mr. Antony
Blinken, in his official capacity as the Secretary of the U.S.
State Department; and Mr. Lloyd J. Austin III, in his official
capacity as the Secretary of the U.S. Department of Defense,
Defendants, Case No. 1:23-cv-00576-RDM (D.D.C., March 2, 2023) is a
class action against the Defendants for alleged violations of the
Alien Tort Statute, the Torture Victim Protection Act, and the
Administrative Procedure Act, and for unjust enrichment, negligent
supervision, and intentional infliction of emotional distress.
The ongoing civil war and slaughter of innocent civilians in Yemen
began in 2014 when Houthi insurgents -- Shiite rebels with links to
Iran and a history of rising up against Yemen's ruling Sunni
government -- took control of Yemen's capital and largest city,
Sana'a, demanding lower fuel prices and a new government. After
negotiations failed, the rebels seized the presidential palace in
January 2015, forcing President Abd Rabbu Mansour Hadi to resign
and flee. In March 2015, the United Arab Emirates, and specifically
its de facto ruler and Supreme Commander of the Armed Forces,
Defendant Mohamed bin Zayed Al-Nahyan, formed a coalition with
Saudi Arabia, Bahrain, Egypt, Jordan, Kuwait, Morocco, Senegal, and
Sudan (hereinafter referred to as "the Coalition") to take military
action at the request of deposed President Hadi.
The Plaintiffs are representative victims among the Yemeni
civilians who suffered significant bodily harm and property loss
due to attacks by the Coalition on civilians with U.S.-made arms.
The Plaintiffs bring this action on behalf of themselves and all
other similarly situated current and former victims of war crimes
who have been harmed by the strikes carried out by the Coalition
military forces, the U.S. government's unlawful decision to approve
arms sales contracts to the Saudi-led coalition, and the relevant
U.S. defense contractors' willingness to profit from manufacturing
and supplying arms to the Coalition, with specific knowledge that
such arms have been and will be used for committing war crimes.
The Plaintiffs assert claims for injunctive relief and monetary
damages under the Alien Tort Statute, against the named leaders of
the Saudi Arabian and UAE military forces because they knowingly
committed war crimes and extrajudicial killings, including against
the Plaintiffs. Second, extrajudicial killings committed by the
named leaders of the Saudi Arabian and UAE military forces also
violate the Torture Victim Protection Act. Third, Plaintiffs seek
injunctive relief and monetary damages under the ATS against the
named U.S. defense contractors for aiding and abetting war crimes
and extrajudicial killings based on their supply of weapons to the
leaders of the Coalition. Fourth, Plaintiffs also allege violations
of the TVPA against the named responsible executives of the
Defendant Defense contractors because they acted jointly with or
aided and abetted these military leaders in committing
extrajudicial killings. Fifth, Plaintiffs seek injunctive relief
based on the Administrative Procedure Act against the U.S.
Department of State, through the named responsible officer,
Secretary Antony Blinken, and the Department of Defense, through
the named responsible officer, Secretary Lloyd J. Austin III, since
their decisions to approve the arms sales are arbitrary and
capricious, and are in violation of various U.S. statutes,
including but not limited to, the Foreign Assistance Act and the
Arms Export Control Act. Sixth and finally, Plaintiffs allege
unjust enrichment against the defense contractor Defendants and the
named individual executives of those companies, and negligence and
intentional infliction of emotional distress against all Defendants
except the Departments of State and Defense and their respective
Secretaries.[BN]
The Plaintiffs are represented by:
Terrence P. Collingsworth, Esq.
INTERNATIONAL RIGHTS ADVOCATES
621 Maryland Avenue NE
Washington, D.C. 20002
Telephone: (202) 543-5811
E-mail: tc@iradvocates.org
UNITED STATES: S.O. May Proceed Anonymously in Chen v. Vilsack/USDA
-------------------------------------------------------------------
Judge Valerie E. Caproni of the U.S. District Court for the
Southern District of New York grants Plaintiff S.O.'s Motion for
Leave to Proceed Anonymously in the lawsuit entitled HAIYAN CHEN,
KENYA WATSON, S.O., GERTRUDE CRIBBS, HANA BROOME, and MEI IENG LEE,
individually, and on behalf of all similarly situated, Plaintiffs
v. TOM VILSACK, in his official capacity as Secretary of the U.S.
Department of Agriculture (USDA), and CINDY LONG, in her official
capacity as Administrator of the USDA Food and Nutrition Service,
Defendants, Case No. 1:23-cv-01440-VEC (S.D.N.Y.).
The action was brought on behalf of a putative class of New York
residents, whose Supplemental Nutrition Assistance Program (SNAP)
benefits were stolen from them through the use of skimming, a form
of electronic theft. Although the Plaintiffs were deprived of those
benefits through no fault of their own, the Defendants have refused
to allow the issuance of replacement benefits, claiming that such
are barred by 7 C.F.R. Section 274.6. Plaintiff S.O. contends that
the regulation, however, does not conform with Congress's mandate
that benefits lost or stolen prior to receipt should be replaced,
and thus, is arbitrary and capricious and contrary to law in
violation of the Administrative Procedure Act.
Plaintiff S.O. is a member of the putative class, who seeks
declaratory and other relief for the wrongs Defendants Tom Vilsack
and Cindy Long, acting in their official capacities as Secretary of
the U.S. Department of Agriculture (USDA) and Administrator of the
USDA Food and Nutrition Service (FNS), respectively, have
committed.
Allowing S.O., a victim of domestic violence, to proceed
anonymously will protect her from the risk of harm from her abusive
family member, the Plaintiff asserts. Moreover, there is no
prejudice to the Defendants in allowing S.O. to proceed
anonymously, nor is there any significant public interest in the
disclosure of S.O.'s identity.
S.O. is 26 years old and the sole caretaker to a son, who is almost
two years old. In February 2022, she left her home with her son
after an incident of violence involving a family member, who had
inflicted physical and emotional abuse upon her for many years. At
first, she entered the New York City shelter system. After
connecting with an organization that helps survivors of family and
domestic violence, she eventually found a placement in a shelter
run by the same organization in a confidential location in New York
City.
S.O. says her abuser does not know where she currently is staying.
S.O. fears that if her abuser were to learn of her whereabouts,
including the Court in which the case is pending, then she would be
at risk of harm from the abuser.
Judge Caproni states the Court has the discretion to allow a
plaintiff to proceed anonymously. In the Second Circuit, when
determining whether a plaintiff may be allowed to maintain an
action under a pseudonym, the plaintiff's interest in anonymity
must be balanced against both the public interest in disclosure and
any prejudice to the defendant, citing Sealed Plaintiff v. Sealed
Defendant, 537 F.3d 185, 189 (2d Cir. 2008).
In balancing these interests, the Second Circuit has identified ten
non-exhaustive factors courts should consider, including whether
the litigation involves matters that are highly sensitive and of a
personal nature, whether identification poses a risk of retaliatory
physical or mental harm to the party seeking to proceed anonymously
or even more critically, to innocent non-parties, and whether
identification presents other harms and the likely severity of
those harms, including whether the injury litigated against would
be incurred as a result of the disclosure of the plaintiffs
identity.
Application of these factors here clearly tips the balance in favor
of granting the motion and allowing S.O. to proceed anonymously,
Judge Caproni holds.
Courts have found that if a viable alternative to anonymity exists,
for example, by sealing and redacting documents, Judge Caproni
notes. Other situations where courts have found that redacting
documents is a viable alternative to anonymity include where the
plaintiffs sensitive medical information could be easily redacted.
These alternatives would not protect S.O., Judge Caproni holds.
Unlike in Doe v. Solera Capital LLC, No. 18-cv-1769, 2019 WL
1437520, *8 (S.D.N.Y. Mar. 31, 2019), she has not changed her name.
Thus, disclosing her real name puts her at risk that her abuser
will learn her address and court dates at which she may appear.
Additionally, it would not be possible to simply redact S.O.'s
identifying information, since it is her name itself, and not the
details of a medical condition, that are at issue.
Hence, Judge Caproni grants the application without prejudice to
the Defendants' right to object to the Plaintiff's request once
they have appeared. The Clerk of Court is directed to close the
open motion at Dkt. 5.
A full-text copy of the Court's Memorandum of Law dated Feb. 23,
2023, is available at https://tinyurl.com/mht5upau from
Leagle.com.
USC: Plaintiffs Seeks to File Portions of Docs Under Seal
---------------------------------------------------------
In the class action lawsuit re: University of Southern California
Tuition and Fees COVID-19 Refund Litigation, Case No.
2:20-cv-04066-DMG-PVC (C.D. Cal.), the Plaintiffs seek leave to
file under seal portions of the Plaintiffs' Memorandum of Law in
Support of the Plaintiffs' Motion for Class Certification and
Exhibits 1, 3, and 28 to the Declaration of Daniel J. Kurowski in
Support of the Plaintiffs' Motion for Class Certification.
The Plaintiffs' memorandum of points and authorities in support of
the Plaintiffs' Motion for Class Certification contains references
to/quotations from the following materials that should be sealed
and for the reasons set for below and in the
accompanying Declaration of Daniel J. Kurowski in Support of the
Plaintiffs' Application for Leave to File Under Seal.
a. Exhibit(s) 1 and 28 to the Declaration of Daniel J.
Kurowski are document(s) produced by the Defendants in
this case and designated as "HIGHLY CONFIDENTIAL --
ATTORNEYS' EYES ONLY" pursuant to the Stipulated
Protective Order entered on January 31, 2022, which the
Defendants maintain respectively contain
(1) non-public financial information and confidential
internal deliberations that place USC at competitive
disadvantage and
(2) confidential internal deliberation and strategy.
b. Exhibit 3 to the Declaration of Daniel J. Kurowski is the
expert Report of Hal J. Singer, Ph.D. which quotes and
discusses material designated as "CONFIDENTIAL" by the
Defendants pursuant to the Stipulated Protective Order
entered on January 31, 2022. The designated material
discusses non-public testimony regarding financial
matters.
A copy of the Plaintiffs' motion dated March 1, 2023 is available
from PacerMonitor.com at https://bit.ly/3LkOZYn at no extra
charge.[CC]
The Plaintiffs are represented by:
Steve W. Berman, Esq.
Christopher R. Pitoun, Esq.
Daniel J. Kurowski, Esq.
Whitney K. Siehl, Esq.
HAGENS BERMAN SOBOL SHAPIRO LLP
1301 Second Avenue, Suite 2000
Seattle, WA 98101
Telephope: (206) 623-7292
Facsimile: (206) 623-0594
E-mail: steve@hbsslaw.com
christopherp@hbsslaw.com
dank@hbsslaw.com
whitneys@hbsslaw.com
- and -
Ellen T. Noteware, Esq.
E. Michelle Drake, Esq.
Ariana Kiener, Esq.
BERGER MONTAGUE PC
1818 Market Street, Suite 3600
Philadelphia, PA 19103
Telephone: (215) 875-3000
E-mail: enoteware@bm.net
emdrake@bm.net
akiener@bm.net
- and -
Roy A. Katriel, Esq.
THE KATRIEL LAW FIRM, P.C.
2262 Carmel Valley Road, Suite 201
Del Mar, CA 92014
Telephone: (619) 363-3333
E-mail: rak@katriellaw.com
- and -
Ralph B. Kalfayan, Esq.
Veneeta Jaswal, Esq.
THE KALFAYAN LAW FIRM , APC
2262 Carmel Valley Road, Suite 200
Del Mar, CA 92014
Telephone: (619) 232-0331
E-mail: ralph@rbk-law.com
veneeta@rbk-law.com
- and -
(Eddie) Jae K. Kim, Esq.
Edward W. Ciolko, Esq.
LYNCH CARPENTER LLP
117 East Colorado Blvd., Suite 600
Pasadena, CA 91105
Telephone: (619) 762-1910
E-mail: ekim@lcllp.com
eciolko@lcllp.com
- and -
Jennifer Duffy, Esq.
LAW OFFICES OF JENNIFER DUFFY
28649 S. Western Avenue, Suite 6571
Los Angeles, CA 90734
Telephone: (310) 714-9779
E-mail: jennifer@usclassactions.com
- and -
R. Rex Parris, Esq.
Alexander R. Wheeler, Esq.
Kitty K. Szeto, Esq.
John M. Bickford, Esq.
Ryan A. Crist, Esq.
PARRIS LAW FIRM
43364 10th Street West
Lancaster, CA 93534
Telephone: (661) 949-2595
E-mail: rrparris@parrislawyers.com
kszeto@parrislawyers.com
awheeler@parrislawyers.com
jbickford@parrislawyers.com
rcrist@parrislawyers.com
- and -
Carney R. Shegerian, Esq.
Anthony Nguyen, Esq.
Cheryl A. Kenner, Esq.
SHEGERIAN & ASSOCIATES , INC.
145 South Spring Street, Suite 400
Los Angeles, CA 90012
Telephone: (310) 860-0770
Facsimile: (310) 860-0771
E-mail: CShegerian@Shegerianlaw.com
ANguyen@Shegerianlaw.com
CKenner@Shegerianlaw.com
UTAH: Court Junks Sjodin Class Certification Bid
-------------------------------------------------
In the class action lawsuit captioned as KIRK ARDELL SJODIN, JR. et
al., v. STATE OF UTAH et al., Case No. 4:23-cv-00016-DN (D. Utah),
the Hon. Judge Paul Kohler entered an order that:
(1) Plaintiffs Oyler, American Civil Liberties Union, and
Human Rights Defense Center are struck from the
Complaint.
(2) Class certification is denied.
(3) The Plaintiff's application to proceed without prepaying
the filing fee is granted.
(4) So that Plaintiff's initial partial filing fee may be
calculated, Plaintiff shall have thirty days to file
with the Court a certified copy of Plaintiff's inmate
trust fund account statement(s).
If Plaintiff was held at more than one institution during the past
six months, Plaintiff shall file certified trust fund account
statements (or institutional equivalent) from the appropriate
official at each institution where Plaintiff was confined.
The certified trust fund account statement(s) must show deposits
and average balances for each month. If Plaintiff does not fully
comply, this complaint will be dismissed.
As the only remaining plaintiff, Sjodin applies to proceed without
prepaying the filing fee. However, the Plaintiff has not as
required by statute submitted "a certified copy of the trust fund
account statement (or institutional equivalent) for the prisoner
for the 6-month period immediately preceding the filing of the
complaint.
A copy of the Court's order dated Feb. 28, 2023 is available from
PacerMonitor.com at https://bit.ly/3Fb62ID at no extra charge.[CC]
VERTEX ENERGY: Faces Suit Over 44% Drop in Share Price
------------------------------------------------------
Bernstein Liebhard LLP disclosed that a securities class action
lawsuit has been filed on behalf of investors who purchased or
acquired the securities of Vertex Energy, Inc. (Vertex) between
April 1, 2022 and August 8, 2022.
Vertex is a significant production partner of marine fuels firm
Bunker One after they entered a 10-year marine fuel Joint Supply
and Marketing Agreement in 2020 and Bunker One is an investor in
Vertex Energy.
The lawsuit was filed in the United States District Court for the
Southern District of Alabama and alleges violations of the
Securities Exchange Act of 1934.
Prior to the start of the Class Period, Vertex's primary business
involved the collection and processing of used motor oil. In early
2021, Vertex announced that it had reached an agreement to acquire
an oil refinery located in Mobile, Alabama from Shell Oil. The
refinery was viewed as a "transformative" acquisition for Vertex,
expected to significantly increase the Company's projected annual
revenues, from USD 115 million in fiscal year 2021 to a projected
USD 4 billion in fiscal year 2023. A key component of the
acquisition was Vertex's plan to convert a portion of the
refinery's 91,000 barrel-per-day output to renewable diesel fuel,
which was expected to generate higher profits than the refinery's
conventional gasoline and diesel fuel outputs. The acquisition of
the Mobile refinery acquisition was expected to close in early
2022.
To successfully operate the Mobile refinery, Vertex, like other oil
refiners, would be required to procure raw crude oil from
suppliers, process it into finished products such as gasoline,
diesel, and jet fuel, and sell the finished products to
distributors who would then sell the products to end users. The
difference between the prices at which Vertex acquired crude oil
inventory and the prices at which it sold the finished products
inventory is known in the refining industry as the "crack spread."
Crack spreads, which fluctuate over time based on domestic and
global oil prices, are widely viewed by analysts and investors as
the key component of potential profits for oil refiners like
Vertex.
Plaintiff alleges that, throughout April 1, 2022 and August 8,
2022, Defendants failed to disclose, among other things, that prior
to the acquisition of the Mobile refinery, Defendants had entered
into inventory and crack spread hedging derivatives that
significantly capped the profit margins on 50% of the Mobile
refinery's expected output over the period April 1, 2022 to
September 30, 2022, affecting over 6.5 million barrels of refined
fuel output.
On August 9, 2022, before the market opened, Vertex filed with the
SEC a Form 8-K that included its second quarter 2022 earnings
release and held an earnings conference call for analysts and
investors (Q2 earnings call). In the earnings release, and on the
call, Vertex disclosed massive losses incurred at the Mobile
refinery during the second quarter of 2022. Vertex announced a net
loss for the Company of USD 63.8 million. Vertex also announced
that adjusted EBITDA for the Mobile refinery, even after adjusting
for certain incurred losses, was only USD 63.6 million, compared to
the guidance given just three months prior for EBITDA of USD
120-USD 130 million in the second quarter, a total shortfall of
50%. Vertex also withdrew its financial guidance for the remainder
of fiscal year 2022 and fiscal year 2023.
On this news, Vertex's stock price fell USD 6.18 per share, or 44%,
to close at USD 7.80 per share on August 9, 2022.[GN]
WALMART INC: Hodges Recommended as Haro's Interim Class Counsel
---------------------------------------------------------------
In the case, AMADO HARO and ROCHELLE ORTEGA, on behalf of
themselves and all others similarly situated, Plaintiffs v.
WALMART, INC., Defendant, Case No. 1:21-cv-00239-ADA-SKO (E.D.
Cal.), Magistrate Judge Sheila K. Oberto of the U.S. District Court
for the Eastern District of California recommends that the
Plaintiffs' unopposed motion for appointment of interim class
counsel be granted.
On Feb. 23, 2021, the Plaintiffs filed the class and collective
action, individually and on behalf of all others similarly
situated, alleging that Walmart implemented an unlawful policy
requiring its non-exempt, hourly workers to undergo COVID-19
screenings prior to clocking in for their shifts without overtime
pay. They assert these COVID-19 screenings constitute physical and
medical examinations that are compensable time under both the Fair
Labor Standards Act and the California Labor Code, and that, by
failing to pay overtime wages for time spent in the screenings,
Walmart violated California and federal law.
The Plaintiffs filed their class and collective certification
motions on Aug. 15, 2022. Pursuant to a stipulation between the
parties, their reply brief in support of their motion for class
certification is due on March 31, 2023, and the motion as well as
related discovery motions are set for hearing before the
undersigned on May 31, 2023.
The Plaintiffs filed their motion for appointment of interim
counsel on Jan. 18, 2023. Walmart does not oppose their request.
The hearing set on Feb. 22, 2023, on the instant motion, along with
the Plaintiffs' motion for conditional certification of collective
action, proposed collective action notice plan, and motion to
strike employee declarations submitted by Walmart, was vacated and
the matter was taken under submission.
Judge Oberto has reviewed the Plaintiffs' unopposed motion for
appointment of interim class counsel and uncontested supporting
documentation, including the declarations by the Plaintiffs' three
attorneys. She finds that designation of Hodges & Foty, LLP as the
interim class counsel is appropriate.
In determining whether to appoint class counsel, Judge Oberto
considers the following factors outlined in Rule 23(g)(1)(A): (i)
the work counsel has done in identifying or investigating potential
claims in the action; (ii) counsel's experience in handling class
actions, other complex litigation, and the types of claims asserted
in the action; (iii) counsel's knowledge of the applicable law;"
and (iv) the resources that counsel will commit to representing the
class. She also considers any other matter pertinent to the
counsel's ability to fairly and adequately represent the interests
of the class.
Turning to the first factor, Judge Oberto finds that Hodges & Foty,
LLP has done significant work identifying and investigating the
claims at issue. As for the next two interrelated factors, the
counsel's experience and knowledge, it is undisputed that Hodges &
Foty, LLP has experience handling class actions, other complex
litigation, and most importantly, the types of claims asserted in
this litigation. Lastly, it is clear that Hodges & Foty, LLP is a
well-established, reputable firm that is up to the task of handling
the challenges of the litigation and is capable of committing the
requisite resources to doing so.
Based on the foregoing, Judge Oberto recommends that the
Plaintiffs' motion for appointment of interim class counsel be
granted and that Hodges & Foty, LLP be appointed as the interim
counsel for the putative class.
Within 21 days after being served with these Findings and
Recommendation, any party may file written objections with the
Court. The document should be captioned "Objections to Magistrate
Judge's Findings and Recommendations."
A full-text copy of the Court's Feb. 24, 2023 Findings &
Recommendation is available at https://tinyurl.com/2p8vxxkk from
Leagle.com.
WALMART INC: Parties Stipulate to Extend Class Cert Briefing
------------------------------------------------------------
In the class action lawsuit captioned as SALVADOR GUZMAN and JAMES
MARSHALL, as individuals and on behalf of all others similarly
situated, v. WALMART INC., a Delaware corporation; WAL-MART
ASSOCIATES, INC., a Delaware corporation; WAL-MART STORES, INC., a
Delaware corporation and DOES 1 through 50, inclusive, Case No.
5:21-cv-09133-NC (N.D. Cal.), the Parties file joint stipulation to
extend class certification briefing and hearing dates as follows:
1. The Defendants' deadline to file their Opposition to the
Plaintiffs' Motion for Class Certification be continued
from March 20, 2023 to March 31, 2023;
2. The Plaintiffs' deadline to file their Reply in support of
their Motion for Class Certification be continued from
April 3, 2023, to April 14, 2023;
3. The hearing on the Plaintiffs' Motion for Class
Certification be continued from April 19, 2023 to April
30, 2023, or the next available date convenient to the
Court's calendar.
On February 23, 2022, the Court issued a Case Management Scheduling
Order setting an October 5, 2022 deadline for the Plaintiffs to
file a motion for class certification.
Walmart is an American multinational retail corporation that
operates a chain of hypermarkets, discount department stores, and
grocery stores in the United States.
A copy of the the Parties' motion
dated March 1, 2023 is available from PacerMonitor.com at
https://bit.ly/429szj0 at no extra charge.[CC]
The Plaintiffs are represented by:
Larry W. Lee, Esq.
Mai Tulyathan, Esq.
DIVERSITY LAW GROUP, P.C.
515 S. Figueroa St., Suite 1250
Los Angeles, CA 90071
Telephone: (213) 488-6555
Facsimile: (213) 488-6554
E-mail: lwlee@diversitylaw.com
ktulyathan@diversitylaw.com
- and -
B. James Fitzpatrick, Esq.
Laura Franklin, Esq.
FITZPATRICK & SWANSTON
555 S. Main Street
Salinas, CA 93901
Telephone: (831) 755-1311
Facsimile: (831) 755-1319
E-mail: bjfitzpatrick@fandslegal.com
lfranklin@fandslegal.com
- and -
Dennis S. Hyun, Esq.
HYUN LEGAL, APC
515 S. Figueroa St., Suite 1250
Los Angeles, CA 90071
Telephone: (213) 488-6555
Facsimile: (213) 488-6554
E-mail: dhyun@hyunlegal.com
The Defendants are represented by:
Paloma P. Peracchio, Esq.
Mitchell A. Wrosch, Esq.
Alis M. Moon, Esq.
OGLETREE, DEAKINS, NASH, SMOAK &
STEWART, P.C.
400 South Hope Street, Suite 1200
Los Angeles, CA 90071
Telephone: (213) 239-9800
Facsimile: (213) 239-9045
WORLD RUGBY: Player in Lawsuit Welcomes New Tackle Height Limit
---------------------------------------------------------------
smh.com.au reports that a former player at the centre of a
concussion class action against World Rugby and the RFU has
welcomed Rugby Australia's decision to trial the "tummy tackle"
height limit in community rugby later this year.
Former Rebels and England flanker Michael Lipman, 43, who suffers
from dementia after 30 concussions across an 11-year professional
career, said teaching young players to tackle between the chest and
the hip was the "sweet spot" in safe tackling technique.
"It will minimise concussions but, looking across the spectrum of
rugby, it won't stop them from occurring, because concussions can
occur at any time," Lipman said. "Ultimately getting beneath the
sternum and above the hips is the sweet spot of any technique
that's coached."
Lipman is the only Australian player among a group of more than 225
former professional players who have launched a class action
lawsuit against World Rugby, England's RFU and the Welsh Rugby
Union, claiming the governing bodies were negligent in their duty
to protect the players from brain injuries.
London-born, Lipman grew up in Australia but played most of his
career in the UK, earning 10 Test caps for England. He played the
last two years of his career in Melbourne but was forced to retire
in 2012 as his health deteriorated.
He welcomed Australian rugby's decision to embrace a global trial
of lowering the legal tackle height from below the shoulders to
below the sternum. World Rugby's executive board recommended the
change be adopted in the community game only, with the governing
body's council expected to adopt the recommendation in May.
The timing of the recommendation means it is too late for the
eastern states to start the trial. The Northern Territory's club
competition is the logical option, running from October this year
until March in 2024.
Lipman said the trial showed the game was "headed in the right
direction".
"Compared to what I experienced in my day to what it is now,
particularly in rugby league and rugby union, protocols are a lot
better than what they used to be," he said.
"We want to keep people in the game, we don't want people not
putting their kids in contact sport, but we need to make sure it's
as safe as it can be. There will always be risk but lowering the
tackle height will minimise that risk."
There are no immediate plans to make the same change at the elite
level but World Rugby boss Alan Gilpin signalled in January that it
was the game's next priority.
"It's tough because it's a really, really complex message to
deliver. On one level, it's very simple. We know from all the
research that's been done and is incredibly comprehensive, you're
four-and-a-half times more likely to sustain a head injury when you
tackle from an upright position than when the tackler is bent at
the waist," Gilpin told London's Telegraph.
"We need to get players tackling lower at every part of the game.
Obviously, there's an elite part of the game where we're doing a
huge amount of work and we've used sanctions, and red cards in
particular, trying to drive changes in behaviour.
"When you look at the community game, it's challenging to roll that
out on a global basis. It requires significant buy-in from the game
in different parts of the world."
Brumbies assistant coach Rod Seib said the professional game would
cope with whatever changes were made.
"Looking after the head is incredibly important and something we
will do day to day here in our preparation in terms of technique
and the way we prepare," Seib said. "I wouldn't see our game or how
we play changing but, from a lawmakers' perspective, they have to
be looking at how they can make the game a safer place for
everyone. So if they deem that's the way forward, that's the way
forward."
The push has caused major ructions in England, where the RFU
announced a move towards waist-high tackles across the community
game from the new season. The same change was made in Scotland but
has been better received, while France and New Zealand are both
trialling lower tackle heights in their community games.
The RFU is facing two class actions, one from a group of 225 former
professional players and one from 55 amateur players, over what the
claimants say was negligence in the union's failure to protect them
from brain injuries during their playing days.
The Australian trial, if it is adopted by NT Rugby, will send its
data to World Rugby to compile a global picture of the outcomes.
RA is also involved in a Queensland University of Technology study
using 360-degree cameras and AI programming to determine whether
there is any correlation between tackle height and reported
concussions. [GN]
WYNN RESORTS: Court Certifies Class in Ferris Securities Suit
-------------------------------------------------------------
In the class action lawsuit captioned as JOHN V. FERRIS, et al., v.
WYNN RESORTS LIMITED, et al., Case No. 2:18-cv-00479-APG-BNW (D.
Nev.), the Hon. Judge Andrew P. Gordon entered an order granting
the Plaintiffs' motion to certify class.
Judge Gordon said, "I certify the following class for 9 which named
the Plaintiffs John V. Ferris, JoAnn Ferris, and Jeffrey Larsen are
the class 10 representatives:
"All individuals and entities that purchased or otherwise
acquired Wynn Resorts securities between March 28, 2016 and
February 12, 2018, inclusive (the "Class Period"), and who
were damaged thereby."
Excluded from the Class are the Defendants, the officers
and directors of the Company at all relevant times, members
of their immediate families and their legal
representatives, heirs, successors, or assigns, and any
entity in which the Defendants have or had a controlling
interest."
The Judge further ordered that Pomerantz LLP is appointed as class
counsel and Muehlbauer Law is appointed as local/liaison counsel.
The counsel has identified viable claims that survived dismissal
and has now successfully moved to certify a class. Counsel is
experienced in handling securities class actions and is familiar
with applicable law, as shown by both their prior experience and
their filings in the case.
Judge Hoffman previously found counsel adequate to be appointed as
lead and liaison counsel, and counsel has actively litigated this
case for several years now.
The case his is a securities fraud class-action suit against Wynn
Resorts (the Company), Stephen Wynn, and Company officers and board
members.
Wynn Resorts develops, owns, and operates resort casinos in Las
Vegas, Macau, and Massachusetts. Stephen Wynn, the founder and
former CEO and chairman of the board, resigned in 2018 after a Wall
Street Journal (WSJ) article reported on allegations that he
sexually assaulted and harassed several employees over the course
of more than a decade. On the day of the article's publication,
Company share prices dropped 10.12%.
Lead the Plaintiffs John V. Ferris and JoAnn M. Ferris and named
the Plaintiff Jeffrey Larsen allege that Company officers, board
members, and other senior-level management knew about or recklessly
disregarded the allegations of Wynn's misconduct and concealed
them. The Plaintiffs allege that in concealing the misconduct, the
Defendants made material misrepresentations or omissions as part of
a scheme to defraud in violation of Section 10(b) of the Securities
Exchange Act of 1934, and Securities and Exchange Commission (SEC)
Rule 10b-5, 17 C.F.R. section 240.10b-
Wynn Resorts is an American publicly traded corporation based in
Paradise, Nevada, that is a developer and operator of high-end
hotels and casinos.
A copy of the Court's order dated March 1, 2023 is available from
PacerMonitor.com at https://bit.ly/3J2kyn6 at no extra charge.[CC]
XTO ENERGY: Brusamont Loses Bid for Leave to File Reply Brief
-------------------------------------------------------------
In the class action lawsuit captioned as BRUSAMONTI, et al., v. XTO
ENERGY INC., Case No. 2:20-cv-00652 (W.D. Pa.), the Hon. Judge
Cathy Bissoon entered an order denying motion for leave to file
reply brief in support of motion for class certification.
The nature of suit states contract -- other contract.
XTO is an American energy company and subsidiary of ExxonMobil
principally operating in North America.[CC]
YANFENG US: Class Settlement in Dover Suit Gets Final Nod
---------------------------------------------------------
In the class action lawsuit captioned as JASON DOVER, et al., v.
YANFENG US AUTOMOTIVE INTERIOR SYSTEMS I LLC, et al., Case No.
2:20-cv-11643-TGB-DRG (E.D. Mich.), the Hon. Judge Terrence G. Berg
entered an order unconditionally certifying the settlement class,
approving the settlement, allowing the reimbursement of expenses
from the common settlement fund, approving the incentive awards to
the named the Plaintiffs, and granting the motions for attorney's
fees.
The Court further ordered that:
-- an incentive award in the amount of $7,500 is approved for
and may be distributed to the named the Plaintiffs, Jason
Dover, Eric Simpson, and Steven Leggett.
-- class counsel's motion for attorney's fees and litigation
expenses is granted and payments from the settlement fund
are approved as follows: Class counsel shall receive from
the common settlement fund $330,000.00 for attorney's fees
and $29,624.91 for litigation expense reimbursement.
-- this action will be dismissed with prejudice. The Court
will retain limited jurisdiction over the case for the
purposes of enforcing the terms of the settlement.
-- Nonetheless, the Court finds it appropriate to reduce the
incentive awards to $7,500 per the Plaintiff. While counsel
has summarized the work conducted by the representative the
Plaintiffs, they have not provided documentation showing
how much time they actually expended on the case.
The facts giving rise to this lawsuit are set forth in the Court's
September 28, 2021 Order Denying the Defendants' Motion to Dismiss
the Complaint.
Briefly, the Plaintiffs sued several the Defendants associated with
a Yanfeng-sponsored retirement plan, asserting that the Defendants:
(1) breached their duties of loyalty and prudence in managing the
plan; and (2) failed to adequately monitor other fiduciaries
associated with the plan.
According to the complaint, several of the plan's investment
options had been mismanaged since 2014. The specific breaches of
duties the Plaintiffs complained of included selection and
retention of imprudent investment options; failure to investigate
more prudent investment options; failure to prevent excessive
record-keeping fees; failure to ensure that other fiduciaries
managing the funds were qualified; failure to ensure the other
fiduciaries had adequate resources; and failure to maintain
adequate records.
On October 13, 2022, the Court entered an order preliminary
approving the agreement and certifying the following class for
settlement purposes under Federal Rule of Civil Procedure
23(b)(1):
"All participants and beneficiaries of the Yanfeng Automotive
Interior Systems and Investment 401(k) Plan from January 1,
2018 through October 13, 2022."
Yanfeng is a global automotive supplier, focusing on interior,
exterior, seating, cockpit electronics, and passive safety.
A copy of the Court's order dated March 1, 2023 is available from
PacerMonitor.com at https://bit.ly/3l4EVYX at no extra charge.[CC]
ZOOM VIDEO: Objectors' Bids for Atty.'s Fees in Privacy Suit Denied
-------------------------------------------------------------------
Magistrate Judge Laurel Beeler of the U.S. District Court for the
Northern District of California, San Francisco Division, denies the
objectors' motions for attorney's fees and incentive awards in the
lawsuit entitled IN RE: ZOOM VIDEO COMMUNICATIONS, INC. PRIVACY
LITIGATION, This Document Relates To: ALL ACTIONS, Case No.
20-cv-02155-LB (N.D. Cal.).
In this class action against Zoom Video Communications, the
Plaintiffs alleged that Zoom improperly shared their data through
third-party software-development kits from companies, such as
Facebook and Google, claimed to have end-to-end encryption when it
did not, and failed to prevent "Zoombombing" (disruptions of Zoom
meetings by third-party actors).
The parties settled the case, and the Court approved the settlement
over the objections of several class members. Two appeals were
filed: one by objectors Alvery Neace and Sammy Rodgers and one by
objector Judith Cohen. The parties then settled with those
objectors, agreeing in exchange for withdrawal of the objections to
improve the class settlement and allow the appealing objectors to
apply for attorney's fees, costs, and incentive awards. The Court
approved the two objector settlements and the modified class
settlement after the Ninth Circuit remanded for that purpose.
The settling objectors then moved for attorney's fees, costs, and
incentive awards. The motions are denied because the settling
objectors did not substantially enhance the class settlement's
benefits to the class.
Objector Judith Cohen moves for $77,153 in attorney's fees, $847 in
costs, and an incentive award of $1,000. The Plaintiffs oppose the
request.
Judge Beeler finds that Cohen enhanced the benefits to the class,
but not substantially. Judge Beeler explains that the amendment to
the release affects only a narrow subset of the class and addresses
an issue too insubstantial to make the settlement vulnerable to
reversal on appeal. Cohen's motion is, thus, denied.
Objectors Alvery Neace and Sammy Rodgers move for $47,395 in
attorney's fees, $505 in costs, and incentive awards of $1,000
each. The Plaintiffs again oppose the request.
Judge Beeler holds that Neace and Rodgers did not achieve a
substantial enhancement of the settlement's class benefits. Neace
and Rodgers' motion is, thus, denied.
The Court denies the Settling Objectors' motions for attorney's
fees, costs, and incentive awards. This resolves ECF Nos. 262 and
263.
A full-text copy of the Court's Order dated Feb. 23, 2023, is
available at https://tinyurl.com/39u5ut6n from Leagle.com.
[^] 2023 Class Action Money & Ethics Conference - Register Now!
---------------------------------------------------------------
Register now for the 7th Annual Class Action Money & Ethics
Conference! The in-person conference will be held at The Harmonie
Club, New York City, on Monday, May 8th, 2023.
This year's conference chair is Bola Oyesanya, Managing Director
and Private Banker at Citi Law Firm Group.
The value-packed event features special presentations from keynote
speakers, live panel discussions with industry experts and
networking with other professionals.
This year's conference sponsors are:
* Premier Sponsor:
Citi
* Major Sponsors:
Baird Mandalas Brockstedt
Bock Hatch & Oppenheim, LLC
Schochor, Federico and Staton, P.A.
* Patron Sponsors:
Huntington
* Advocate Sponsors:
Atticus
Battea Class Action Services
Simpluris
Interested in becoming a speaker in May? Contact:
Bernard Toliver, CMP
(240) 629-3300 ext. 149
E-mail: bernard@beardgroup.com
Visit https://www.classactionconference.com/ for more information.
The conference is presented by Beard Group, Inc.
*********
S U B S C R I P T I O N I N F O R M A T I O N
Class Action Reporter is a daily newsletter, co-published by
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Fernandez, Joy A. Agravante, Psyche A. Castillon, Julie Anne L.
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Copyright 2023. All rights reserved. ISSN 1525-2272.
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are $25 each. For subscription information, contact
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*** End of Transmission ***