/raid1/www/Hosts/bankrupt/CAR_Public/230323.mbx
C L A S S A C T I O N R E P O R T E R
Thursday, March 23, 2023, Vol. 25, No. 60
Headlines
3M CO: Bothwell Suit Over Toxic PFAS Removed to N.D. Alabama
3M CO: Chiles Suit Over Toxic PFAS Removed to N.D. Alabama
3M COMPANY: Blanchard Sues Over Exposure to Toxic Foams
9ROUND FRANCHISING: Crumwell Files ADA Suit in S.D. New York
ABC LEGAL SERVICES: Pelletier Sues Over Illegal Misclassification
ADIDAS AMERICA: M.D. Florida Dismisses Inouye's Class Complaint
ADVANCED PURIFICATION: Crumwell Files ADA Suit in S.D. New York
AIR PRODUCTS: Filing of Class Cert. Bid Due Jan. 19, 2024
ALDI INC: Filing of Class Certification Bid Due Sept. 22
ALL THAT SHE WANTS: Hwang Files ADA Suit in E.D. New York
ALTICE USA: Denial of Arbitration Bid in Peterson Suit Reversed
ALTICOR INC: Parties Seek to Certify Plan Participant Class
AMAZON.COM INC: Adams Sues Over Illegal Automatic Renewal Scheme
AMAZON.COM SERVICES: Court Junks Hamilton Class Action
AMAZON.COM SERVICES: Judgment on Pleadings in Buero Suit Affirmed
AMAZON.COM SERVICES: Williams Loses Bid to Certify Employee Class
AMERICAN FAMILY: Loch Conditional Cert Bid Denied w/o Prejudice
AMERICAN WAGERING: Geske Files Suit in N.D. Illinois
ANKER TECHNOLOGY: Desai Suit Transferred to N.D. Illinois
APRIA HEALTHCARE: Toro Files ADA Suit in S.D. New York
ARIZONA BEVERAGES: Deadline Extension of Class Cert Briefing Sought
ASSET RECOVERY: Cardero FDCPA Suit Removed to S.D. Florida
BARLEAN'S ORGANIC: Class Action Settlement Gets Final Nod
BELFOR FRANCHISE: Crumwell Files ADA Suit in S.D. New York
BIG APPLE: Toro Files ADA Suit in S.D. New York
BLINK CHARGING: Continues to Defend Consolidated Securities Suit
BOBCAT CENTRAL: Keller Files Suit in Cal. Super. Ct.
BP EXPLORATION: Bid to Exclude Cook Testimony in Street Suit OK'd
C.A.P. CONTRACTING: Frazier Seeks to Recover Unpaid OT Wages
CENG EYEWEAR: Vachnine Files ADA Suit in S.D. New York
CLOOPEN GROUP: Judge Allows Securities Class Action to Proceed
CORIZON HEALTH: Court Stays All Proceedings in Morelli Class Suit
CREDIT MANAGEMENT: Discovery & Case Deadlines Stayed in Glover
DELACAN LLC: Nevada Court Dismisses De Leon Suit With Prejudice
DRAFTKINGS INC: Faces Class Action Over Non-Fungible Tokens
ENVOY HOSPICE: Hallidy Class Suit Seeks Unpaid, OT Wages Under FLSA
FTX TRADING: Suit Seeks $1-Bil. From Influencers Who Endorsed Firm
IMMUNOMEDICS INC: Settlement Proof of Claim Deadline Set June 8
INNIO WAUKESHA: Bid to Impose Sanctions in Charles Suit Granted
J.B. HUNT: Amount in Controversy in Townsend Suit Found Sufficient
MAKEUPBYMARIO INC: Faces Hackler Suit For Biometric Data Collection
MANITOBA: Proposed Settlement Reached in Breach Class Action
MERCY HEALTH: Court Approves Proposed Notice Packet in Peck Suit
NATIONAL HOCKEY: Faces Suit Over Illegal Sharing of Personal Data
NB NET: Fails to Pay Retail Clerks' Minimum, OT Wages Under FLSA
NEW ENGLAND BIOLABS: Class Settlement in Miller Suit Wins Final OK
NEW YORK, NY: Fails to Pay OT Compensation Under FLSA, Clarke Says
OCUGEN INC: Court Dismisses COVAXIN Securities Suit With Prejudice
PERVINE FOODS: S.D. New York Dismisses Seljak Consumer Class Suit
PILGRIM'S PRIDE: Fails to Pay Superintendents' OT Wages Under FLSA
POOH BAH: Faces Corral Suit Over Sexually Hostile Work Environment
PREMIUM RETAIL: Denial of Arbitration Bid in Fraga Suit Vacated
PROCTER & GAMBLE: Laundry Detergent Products Contain Toxins
RAVI ZACHARIAS: Court Strikes Class Allegations in Carrier Suit
SERVICE CORP: Class Settlement in Taylor Suit Wins Final Approval
SJ PERRY: Fails to Pay OT Compensation Under FLSA, Davila Alleges
SKILLZ INC: Jedrzejczyk Class Suit Dismissed Without Leave to Amend
SUMMIT UTILITIES: Overcharges Arkansas Residents for Gas Bills
SVB FINANCIAL: Faces Class Action Over Securities Violations
TARGET CORP: Kahn Class Suit Transferred to District of Minnesota
UNION CARBIDE: Deposition Deadline & Close of Discovery Due June 2
UNITED BEHAVIORAL: Meridian Seeks to Certify Class of Providers
UNITED HEALTHCARE: Class Cert. Briefing Filings Denied as Moot
UNITED PARCEL: April 7 Class Cert. Bid Filing Extension Sought
WALKME LTD: Continues to Defend Labor Class Suit in California
WEST VIRGINIA: Court Dismisses Jacques v. Daughrety of USP Hazelton
WESTMINSTER MGMT: Md. App. Reverses Entry of Judgment in Smith Suit
YANFENG US: $990K Class Settlement in Dover Suit Wins Final Nod
YANFENG US: E.D. Michigan Dismisses Dover Suit With Prejudice
[*] Judge Reaches Decision Through Arbitration in FCRA Class Suit
[^] 2023 Class Action Money & Ethics Conference - Register Now!
*********
3M CO: Bothwell Suit Over Toxic PFAS Removed to N.D. Alabama
------------------------------------------------------------
The case styled JIMMIE L. BOTHWELL; THOMAS JOHN BIGFORD; JOSEPH
FRANK BILSKI; RANDALL LEE BIRD; RICHARD BISCOITO; WESLEY SCOTT
BITNER; RICHARD CHARLES BIZEK; DAVID ALLEN BLACKLEDGE; ROBERT E.
BLACKWELDER; WILLIAM CECIL BLAIR; JOSEPH MITCHELL BLAKE JR.; HOWARD
BURT BLAKE; TROY BLANCHARD; DOUGLAS C. BLANCHARD; GARY MARTIN
BLASINGAME; LAWRENCE KEVIN BLIEKA; TERRENCE L. BLOOME; DON
BOGDANOVICH; ELLIS BOLDON; GORDON LYNN BONNER; WILLIAM LOUIS BOONE;
JAMES STEPHEN BOOTHBY; DANIEL EDWARD BOOTON; DAVID MICHAEL
BORAGINE; GLENN EDWARD BORST; PHILIP HERBERT BORUSZEWSKI; TIMOTHY
JAMES BOSMAN; ROBERT BOWDEN; MARVELL TYRONE BOWMAN; WELDON
FAIRCHILD BOWMAN III; WALTER IRA BOWMAN; CHRISTOPHER MARK BOYLER;
GARY DEAN BRABANT; PETER JOHN BRACHMANN JR; MICHAEL BRADDOCK; JAMES
ELSWORTH BRADFORD; KENNETH WILLIAM BRANDES; MARLON L. BRANDON;
LONNIE PAUL BRANDT; WILLIAM ANTHONY BRANHAM; WINSTON EUGENE BRASHER
JR.; JAMES NORMAN BRASSARD; TODD MICHAEL BRAUD; WILLIAM WAYNE
BRAXTON; STEVEN LEE BREARLEY; JOSEPH C BREECH; WILLIS
ROBERTBREEDEN; BRYAN RAY BREWER; ERNA DARE BRIGHT JR.; DAVID
BRIGMAN JR.; RANDY JAMES BRINSON; CHARLES EUGENE BRITT; BRADY DON
BROOKE; DONALD G. BROOKS; GLEN WARREN BROOKS; GARY PAUL BROUGHTON;
STEVE BROUSSARD; BRUCE VICTOR BROWER; CORNELIUS QUINTIN BROWN;
AVERELL STEPHEN BROWN; WILLIAM FRANKLIN BROWN; CHARLES RAYMOND
BROWN; JAMES EUGENE BROWN; WILLIAM BERGEN BROWN; JEFFREY CHARLES
BROWN; GIOVANNI MICHELLE BROWN; CLINTON KEITH BROWN SR.; JAMES GARY
BROWN; DAVID EARL BROWN SR.; JOHN BROWN; RICHARD JEAN BROWN JR.;
HAROLD GREGORY BROWN SR; GARY MICHAEL BROWN; TERRY LEE BROWN; TODD
MATTHEW BROWN; GEORGE JOSEPH BROZ II; JOSEPH ALEXANDER BRUCE; BLAIR
BRUFFETT; WILLIS EDWARD BRUMLEY ; CHARLES MOULTON BRUNO; SENATOR
MADISON BRUNSON; JOHN JOSEPH BRUNT; JAMES FRANCIS BRUSCO; WAYNE
JEUNINGS BRYAN; CHARLES KENNETH BUCCINO; ROGER RAY BUCKINGHAM;
LARRY P. BUCKLEY; RHETT DAVID BUEHLER; TEODORO BUENROSTRO SR.;
RICHARD BULACAN; DAROLD EUGENE BUNCE; WILLIAM PAUL BUQUET SR.;
JAMES RICHARD BURG; KEVIN VANCE BURGESS; NORMAN BURGETT; NELSON
BLAINE BURK; ALAN WALTER BURKE; MICHAEL JOSEPH BURKE; WILLIAM
THOMAS BURLEY; HAROLD WILLIAMS BURNS; THOMAS J. BURNS SR.; MARK
EDWARD BURNS; LESLIE WAYNE BUSBY; STEVEN MICHAEL BUSH; ROBERT LEE
BUSHONG; STEVE NIEL BUTLER; BOBBY RICHARD BUTLER; STEWART BRIAN
BUTLER; GERALD LAWRANCE BUTTON; MEREL BRADFORD BUTTS; LLOYD CARTER
BYRD; FLORENCIO VILLA CABALLERO; RAYMOND GEORGE CABANA JR; CHARLES
RICHARD CABLE; JOSEPH EUGENE CAFFEY; ARTHUR LAMAR CAINION SR.;
EDDIE DARRIS CALDWELL; DENNIS CALDWELL; JACOB C. CALLIER JR.; DAVID
CAMACHO; CHARLES JOHN CAMARDA III; MARVIN ODELL CAMPBELL; DOUGLAS
JAMES CAMPBELL; JOHNNY CAMPOS; ALI ABDULLAH CANADA; THOMAS LEE
CANNON, Plaintiffs v. 3M COMPANY (f/k/a Minnesota Mining and
Manufacturing Company); AGC CHEMICALS AMERICAS INC.; AMEREX
CORPORATION; ARCHROMA U.S. INC.; ARKEMA, INC.; BUCKEYE FIRE
EQUIPMENT COMPANY; CARRIER GLOBAL CORPORATION; CHEMDESIGN PRODUCTS,
INC.; CHEMGUARD, INC.; CHEMICALS, INC.; CHEMOURS COMPANY FC, LLC;
CLARIANT CORP.; CORTEVA, INC.; DEEPWATER CHEMICALS, INC.; DU PONT
DE NEMOURS INC. (f/k/a DOWDUPONT INC.); DYNAX CORPORATION; E.I. DU
PONT DE NEMOURS AND COMPANY; KIDDE-FENWAL, INC.; KIDDE PLC; NATION
FORD CHEMICAL COMPANY; NATIONAL FOAM, INC.; THECHEMOURS COMPANY;
TYCO FIRE PRODUCTS LP, as successor-in-interest to The Ansul
Company; UNITED TECHNOLOGIES CORPORATION; UTC FIRE & SECURITY
AMERICAS CORPORATION, INC. (f/k/a GE Interlogix, Inc.); ALLSTAR
FIRE EQUIPMENT; FIREDEX, LLC; GLOBE MANUFACTURING COMPANY LLC;
HONEYWELL SAFETY PRODUCTS USA, INC.; LION GROUP, INC.; MALLORY
SAFETY AND SUPPLY LLC; MINE SAFETY APPLIANCES CO., LLC; MUNICIPAL
EMERGENCY SERVICES, INC.; PBI PERFORMANCE PRODUCTS, INC.; SOUTHERN
MILLS, INC.; STEDFAST USA, INC.; W.L. GORE & ASSOCIATES INC.,
Defendants, Case No. 01-CV-2023-900464.00, was removed from the
Circuit Court for the Tenth Judicial Circuit, Jefferson County,
Alabama, to the United States District Court for the Northern
District of Alabama, Southern Division, on March 9, 2023.
The Clerk of Court for the Northern District of Alabama assigned
Case No. 2:23-cv-00292-JHE to the proceeding.
In this complaint, the Plaintiffs seek to hold 3M and certain other
Defendants liable based on their alleged conduct in designing,
manufacturing, and/or selling aqueous film-forming foams (AFFF)
and/or firefighter turnout gear that Plaintiffs allege were used in
firefighting activities, thereby causing injury to Plaintiffs. The
Plaintiffs allege that 3M and certain other Defendants sold AFFF
containing per- and polyfluoroalkyl substances (PFAS), including
perfluorooctanoic acid and perfluorooctane sulfonic acid.
3M Company, f/k/a Minnesota Mining and Manufacturing Co., is a
multinational conglomerate corporation and designer, marketer,
developer, manufacturer, distributor of firefighting equipment,
including those with AFFF. It is located at 3M Center, St. Paul,
Minnesota.[BN]
Defendant 3M Company is represented by:
M. Christian King, Esq.
Harlan I. Prater, IV, Esq.
W. Larkin Radney, IV, Esq.
Benjamin P. Harmon, Esq.
LIGHTFOOT, FRANKLIN & WHITE, L.L.C.
The Clark Building
400 North 20th Street
Birmingham, AL 35203-3200
Telephone: (205) 581-0700
Facsimile: (205) 581-0799
E-mail: cking@lightfootlaw.com
hprater@lightfootlaw.com
lradney@lightfootlaw.com
bharmon@lightfootlaw.com
3M CO: Chiles Suit Over Toxic PFAS Removed to N.D. Alabama
----------------------------------------------------------
The case styled WILLIE JEROME CHILES; DENNIS JOSEPH CARDOZA;
BENJAMIN FRANKLIN CAREY JR.; CHARLES E. CARLIN; RALPH ARTHUR
CARLSON; BILLY CARLTON; GEORGE CLIFTON CARNES JR.; ROGER CARON;
KENNETH DAVID CARPENTER; FRANCIS MERRITT CARPENTER; FRANKLIN JOSEPH
CARR JR.; WILLIAM EDWARD CARR; DON CHARLES CARR; KENNETH NATHANIEL
CARROLL JR.; JAMES EDWARD CARROLL JR.; JEFFREY WAYNE CARTER;
WILLIAM CRANDELL CARTER; THOMAS DANIEL CARTER III; HARRY HERSHELL
CARTER; JIMMY CALVIN CARUTHERS; JAMES RAY CARWILE; SAMUEL GROVER
CASEY; MARK LAVERN CASEY; RODNEY TATEM CASON SR.; DENNIS LEE
CASTER; RALPH E. CASTO; CURT RUSSELL CATALANO; JOHN DENNIS
CATROMBON JR.;WILLIAM GEORGE CATTORINI; DANIEL CHRISTOPHER CAULK;
RAYMOND DALE CEARLEY; ROBERT S. CELSI; JOHNNY LEA CHALK; JOHN
CHAPMAN; WAYNE RUSSELL CHARBONNEAU; JOHN-ANTHONY CHAVEZ; THOMAS
STANLEY CHMIELOWIEC SR; WILLIAM COOPER CHRISTY; ALAN LEE CHUCCI;
HARLOW CISCO; JAMES MICHAEL CLAMPITT; WENDELL DWIGHT CLARK; ROBERT
EARL CLARK; CLIFFORD RONALD CLARK; TROY LYNN CLARK; DAVID KEITH
CLARK; DAVID R. CLARK; ANDREW CLAY JR; JAMES ALVIN CLAYBORNE; HUGH
OLIVER CLEMENT JR.; KARL MICHAEL CLOHERTY; JOHN AARO COFFER; GLENN
BURLEIGH COFFIN SR; STUART HUGH COHEN; WILLIAM SOLOMON COHEN; LARRY
DEAN COLE; DOUGLAS GENE COLE; EMMETT DUDLEY COLE JR.; HENRY LESTER
COLE; GREGORY EUGENE COLEMAN; LANCE TRUETT COLEMAN; JESSE L
COLEMAN; TERRY LYNN COLEMAN; DONALD RAY COLEMAN; ROBERT WASHINGTON
COLES III; MYRON DONZELL COLLINS SR; KURT L. COLLINS; CHRISTIAN
WALTER COLLINS SR; CLIFFORD CHRISTOPHER COLLINS; GREGG STEVEN
COLLINS; NEIL COLOSI; WILLIAM EARL COLSTON; ROBERT DUANE COLT;
JAMES CLANTON CONLEY; JAMES THOMAS CONLIN; JOHN LLOYD CONN; RANDY
EDWARD CONROY; ANTHONY GERARD CONTI; THOMAS PATRICK CONVERY;
CHARLES M. COOK; JERRY CALVIN COOK; DONNIE ADILA COOKE SR.; RANDELL
GENE COOPER; ROBERT ALFRED COOPER; JAMES DAVID COOPER; MICHAEL RAY
CORMICAN; CHRISTOPHER RANDALL CORNETTE; JOHN ROBERT CORREGGIO;
MICHAEL GLENN CORSON; JOHN RICO CORTEST; CLAUDE E. CORTHRAN; EDWIN
CORVINUS; ROBERT JOSEPH COSTA; THOMAS PETER COSTANZO; DENNIS JAMES
COSTON; FREDERICK RONALD COTA; RAYMOND WILLIAM COTTINI; JAMES HENRY
COTTRELL; RICHARD ANDREW COUVILLON JR.; LARRY COVINGTON; JAMES
BOOKOUT COWDEN; PAUL WARREN COX; JOHNNY MASON COX JR.; DOUGLAS
LOWELL COX; DARRELL LEE COX; HOWARD WALTER COX II; THOMAS WILLIAM
COYNE; PHILLIP DONOVAN COZART; JAKE VINCENT CRABB; HAROLD EUGENE
CRABTREE JR.; CHARLES SQUIRE CRANE; STEVEN KIRBY CRANK; WARREN
EDWARD CRAWFORD; STEVEN BRUCE CREWS; RONALD GARY CRIPPS; GREGORY
JOHN CRISPO; HILTON VERN CROCKER; JACK CHARLES CROOKSHANKS; BILLY
AVERY CROUCH; KELLY TODD CRULL; STEVEN LEE CRUMP; JOHN ANDREW
CULBERSON; CHARLES CODY CULL; GLEN THEODORE CULLEN; ALAN LAWRENCE
CUMBIE; GARY THOMAS CUMMINGS, Plaintiffs v. 3M COMPANY (f/k/a
Minnesota Mining and Manufacturing Company); AGC CHEMICALS AMERICAS
INC.; AMEREX CORPORATION; ARCHROMA U.S. INC.; ARKEMA, INC.; BUCKEYE
FIRE EQUIPMENT COMPANY; CARRIER GLOBAL CORPORATION; CHEMDESIGN
PRODUCTS, INC.; CHEMGUARD, INC.; CHEMICALS, INC.; CHEMOURS COMPANY
FC, LLC; CLARIANT CORP.; CORTEVA, INC.; DEEPWATER CHEMICALS, INC.;
DU PONT DE NEMOURS INC. (f/k/a DOWDUPONT INC.); DYNAX CORPORATION;
E.I. DU PONT DE NEMOURS AND COMPANY; KIDDE-FENWAL, INC.; KIDDE PLC;
NATION FORD CHEMICAL COMPANY; NATIONAL FOAM, INC.; THE CHEMOURS
COMPANY; TYCO FIRE PRODUCTS LP, as successor-in-interest to The
Ansul Company; UNITED TECHNOLOGIES CORPORATION; UTC FIRE & SECURITY
AMERICAS CORPORATION, INC. (f/k/a GE Interlogix, Inc.); ALLSTAR
FIRE EQUIPMENT; FIREDEX, LLC; GLOBE MANUFACTURING COMPANY LLC;
HONEYWELL SAFETY PRODUCTS USA, INC.; LION GROUP, INC.; MALLORY
SAFETY AND SUPPLY LLC; MINE SAFETY APPLIANCES CO., LLC; MUNICIPAL
EMERGENCY SERVICES, INC.; PBI PERFORMANCE PRODUCTS, INC.; SOUTHERN
MILLS, INC.; STEDFAST USA, INC.; W.L. GORE & ASSOCIATES INC.
Defendants, Case No. 01-CV-2023-900476.00, was removed from the
Circuit Court for the Tenth Judicial Circuit, Jefferson County,
Alabama, to the United States District Court for the Northern
District of Alabama, Southern Division, on March 9, 2023.
The Clerk of Court or the Northern District of Alabama assigned
Case No. 2:23-cv-00285-NAD to the proceeding.
In this complaint, the Plaintiffs seek to hold 3M and certain other
Defendants liable based on their alleged conduct in designing,
manufacturing, and/or selling aqueous film-forming foams (AFFF)
and/or firefighter turnout gear that Plaintiffs allege were used in
firefighting activities, thereby causing injury to Plaintiffs. The
Plaintiffs allege that 3M and certain other Defendants sold AFFF
containing per- and polyfluoroalkyl substances (PFAS), including
perfluorooctanoic acid and perfluorooctane sulfonic acid.
3M Company, f/k/a Minnesota Mining and Manufacturing Co., is a
multinational conglomerate corporation and designer, marketer,
developer, manufacturer, distributor of firefighting equipment,
including those with AFFF. It is located at 3M Center, St. Paul,
Minnesota.[BN]
Defendant 3M Company is represented by:
M. Christian King, Esq.
Harlan I. Prater, IV, Esq.
W. Larkin Radney, IV, Esq.
Benjamin P. Harmon, Esq.
LIGHTFOOT, FRANKLIN & WHITE, L.L.C.
The Clark Building
400 North 20th Street
Birmingham, AL 35203-3200
Telephone: (205) 581-0700
Facsimile: (205) 581-0799
E-mail: cking@lightfootlaw.com
hprater@lightfootlaw.com
lradney@lightfootlaw.com
bharmon@lightfootlaw.com
3M COMPANY: Blanchard Sues Over Exposure to Toxic Foams
-------------------------------------------------------
Sharon Blanchard, and Dana Blanchard by the Proposed Administrator
and Next-of-Kin, Sharon Blanchard, and other similarly situated v.
3M COMPANY (f/k/a Minnesota Mining and Manufacturing Company); AGC
CHEMICALS AMERICAS INC.; AMEREX CORPORATION; ARCHROMA U.S. INC.;
ARKEMA, INC.; BUCKEYE FIRE EQUIPMENT COMPANY; CARRIER GLOBAL
CORPORATION; CHEMDESIGN PRODUCTS, INC.; CHEMGUARD, INC.; CHEMICALS,
INC.; CHEMOURS COMPANY FC, LLC; CHUBB FIRE, LTD; CLARIANT CORP.;
CORTEVA, INC.; DEEPWATER CHEMICALS, INC.; DU PONT DE NEMOURS INC.
(f/k/a DOWDUPONT INC.); DYNAX CORPORATION; E.I. DU PONT DE NEMOURS
AND COMPANY; KIDDE-FENWAL, INC.; KIDDE PLC; NATION FORD CHEMICAL
COMPANY; NATIONAL FOAM, INC.; THE CHEMOURS COMPANY; TYCO FIRE
PRODUCTS LP, as successor-in-interest to The Ansul Company; UNITED
TECHNOLOGIES CORPORATION; UTC FIRE & SECURITY AMERICAS CORPORATION,
INC. (f/k/a GE Interlogix, Inc.); Case No. 2:23-cv-00413-RMG
(D.S.C., Jan. 30, 2023), is brought for damages for personal injury
resulting from exposure to aqueous film-forming foams ("AFFF")
containing the toxic chemicals collectively known as per and
polyfluoroalkyl substances ("PFAS"). PFAS includes, but is not
limited to, perfluorooctanoic acid ("PFOA") and perfluorooctane
sulfonic acid ("PFOS") and related chemicals including those that
degrade to PFOA and/or PFOS.
AFFF is a specialized substance designed to extinguish
petroleum-based fires. It has been used for decades by military and
civilian firefighters to extinguish fires in training and in
response to Class B fires. The Defendants collectively designed,
marketed, developed, manufactured, distributed, released, trained
users, produced instructional materials, promoted, sold, and/or
otherwise released into the stream of commerce AFFF with knowledge
that it contained highly toxic and bio persistent PFASs, which
would expose end users of the product to the risks associated with
PFAS. Further, the Defendants designed, marketed, developed,
manufactured, distributed, released, trained users, produced
instructional materials, promoted, sold and/or otherwise handled
and/or used underlying chemicals and/or products added to AFFF
which contained PFAS for use in firefighting.
PFAS binds to proteins in the blood of humans exposed to the
material and remains and persists over long periods of time. Due to
their unique chemical structure, PFAS accumulates in the blood and
body of exposed individuals. PFAS are highly toxic and carcinogenic
chemicals. Defendants knew, or should have known, that PFAS remain
in the human body while presenting significant health risks to
humans.
The Defendants' PFAS-containing AFFF products were used by the
Plaintiff in their intended manner, without significant change in
the products' condition. Plaintiff was unaware of the dangerous
properties of the Defendants' AFFF products and relied on the
Defendants' instructions as to the proper handling of the products.
Plaintiff's consumption, inhalation and/or dermal absorption of
PFAS from Defendant's AFFF products caused Plaintiff to develop the
serious medical conditions and complications alleged herein.
Through this action, the Plaintiff seeks to recover compensatory
and punitive damages arising out of the permanent and significant
damages sustained as a direct result of exposure to the Defendants'
AFFF products at various locations during the course of Plaintiff's
training and firefighting activities. Plaintiff further seeks
injunctive, equitable, and declaratory relief arising from the
same, says the complaint.
The Plaintiff Sharon Blanchard is the proposed personal
representative/administrator/executor of the Estate of Dana
Blanchard, who regularly used, and was thereby directly exposed to,
AFFF in training and to extinguish fires during his working career
as a military and/or civilian firefighter and was diagnosed with
pancreatic cancer as a result of exposure to the Defendants' AFFF
products.
The Defendants are designers, marketers, developers, manufacturers,
distributors, releasers, instructors, promotors and sellers of PFAS
containing AFFF products or underlying PFAS containing chemicals
used in AFFF production.[BN]
The Plaintiff is represented by:
Richard Zgoda, Jr., Esq.
Steven D. Gacovino, Esq.
GACOVINO, LAKE & ASSOCIATES, P.C.
270 West Main Street
Sayville, NY 11782
Phone: 631-600-0000
Facsimile: 631-543-5450
- and -
Gregory A. Cade, Esq.
Gary A. Anderson, Esq.
Kevin B. McKie, Esq.
ENVIRONMENTAL LITIGATION GROUP, P.C.
2160 Highland Avenue South
Birmingham, AL 35205
Phone: 205-328-9200
Facsimile: 205-328-9456
9ROUND FRANCHISING: Crumwell Files ADA Suit in S.D. New York
------------------------------------------------------------
A class action lawsuit has been filed against 9Round Franchising,
LLC. The case is styled as Denise Crumwell, on behalf of herself
and all other persons similarly situated v. 9Round Franchising,
LLC, Case No. 1:23-cv-02242 (S.D.N.Y., March 15, 2023).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
9Round -- https://www.9round.com/ -- is a fitness franchise
specializing fitness center dedicated to serving clients who want a
unique, fun, and proven workout that guarantees results.[BN]
The Plaintiff is represented by:
Dana Lauren Gottlieb, Esq.
GOTTLIEB & ASSOCIATES
150 E. 18 St., Suite PHR
New York, NY 10003
Phone: (917) 796-7437
Fax: (212) 982-6284
Email: danalgottlieb@aol.com
ABC LEGAL SERVICES: Pelletier Sues Over Illegal Misclassification
-----------------------------------------------------------------
Kimberly Pelletier, an individual, on behalf of herself and all
others similarly situated v. ABC LEGAL SERVICES, LLC, a Washington
corporation; and DOES 1 through 100, inclusive, Case No.
37-2023-00010530-CU-OE-CTL (Cal. Super. Ct., San Diego Cty., March
14, 2023), is brought seeking several forms of relief stemming from
Defendant's illegal misclassification scheme and recovery for
violations of California's Labor Code and applicable Industrial
Welfare Commission Wage Orders ("Wage Orders") along with
violations of California's Unfair Competition Law predicated upon
violations of California's Labor Code and Wage Orders.
To carry out the litigation-related service obligations owed to its
customers, ABC Legal obtains the services of "Process Servers" like
Plaintiff and the similarly situated employees. Under the
management and control of ABC Legal, these Process Servers carry
out necessary litigation-related services for ABC Legal's
third-party customers. Despite Process Servers' central role in ABC
Legal's business and the control exerted over Process Servers, ABC
Legal uniformly misclassifies its Process Servers as "independent
contractors."
By refusing to recognize Process Servers as employees, ABC Legal
cheats these individuals out of protections provided by California
law such as minimum wages, overtime pay, and reimbursement of
business expenses. In addition to denying these workers core
benefits, ABC Legal's misclassification also robs the State of
important employee tax revenue and gives ABC Legal an undue
advantage over law-abiding competitors who bear the necessary
expense associated with employing similar workers, says the
complaint.
The Plaintiff works as a Process Server for the Defendant.
ABC Legal provides litigation-related services to law firms
including service of process, e-filing, skip tracing, and venue
selection.[BN]
The Plaintiff is represented by:
Craig M. Nicholas, Esq.
Shaun Markley, Esq.
Jordan Belcastro, Esq.
NICHOLAS & TOMASEVIC, LLP
225 Broadway, 19th Floor
San Diego, CA 92101
Phone: (619) 325-0492
Fax: (619) 325-0496
Email: cnicholas@nicholaslaw.org
smarkley@nicholaslaw.org
jbelcastro@nicholaslaw.org
ADIDAS AMERICA: M.D. Florida Dismisses Inouye's Class Complaint
---------------------------------------------------------------
In the case, DAVID INOUYE, Plaintiff v. ADIDAS AMERICA, INC.,
Defendant, Case No. 8:22-cv-416-VMC-TGW (M.D. Fla.), Judge Virginia
M. Hernandez Covington of the U.S. District Court for the Middle
District of Florida, Tampa Division, grants Adidas' Motion to
Dismiss Complaint.
The case arises out of the allegedly deceptive product labeling by
Adidas of its jerseys as "authentic." Adidas manufactures, labels,
markets, and sells National Hockey League ("NHL") jerseys. It
promotes the Product as "authentic," representing as such through
methods including labeling, hang tags attached to the Product, and
descriptions on its website. Third-party stores and websites,
including fanatics.com, also identify the Product as "authentic."
Despite Adidas' characterization of the Product as "authentic," the
Product differs in numerous ways from the jerseys worn by NHL
players. First, the cut of the Product is tighter than that of
those worn by NHL players. Second, the fabric used in the Product
is half the thickness of the jerseys worn by NHL players. Third,
the stitching used in making the Product is weaker and less durable
than in the jerseys worn by NHL players. Fourth, the neck hole of
the Product is larger than that of the jerseys worn by NHL players.
Fifth, the "dimples" in the upper torso and shoulder area of the
Product are significantly smaller than those of the jerseys worn by
NHL players. Finally, the Product is made in Indonesia, whereas the
jerseys worn by NHL players are made in Canada. The Product is sold
at a premium price, no less than $179.99, which is higher than it
would be sold absent the misleading representations and omissions.
David Inouye is a resident of Hillsborough County, Florida. He
purchased the Product on one or more occasions between November and
December 2021 at stores including Fanatics and at locations
including fanatics.com. He purchased the Product because of his
belief that it was "authentic," which he understood to mean
"genuine and substantially similar or identical" to the jerseys
worn by NHL players. In doing so, Mr. Inouye relied on the words,
descriptions, layout, packaging, tags, and images on the Product,
on the labeling, statements, omissions, and claims made by Adidas
or at its direction in digital, print and social media, which
accompanied the Product and separately, and through in-store,
digital, audio, and print marketing.
Because of Mr. Inouye's belief that the Product was "authentic," he
purchased the Product at prices at or exceeding $179.99. He was
subsequently disappointed by the Product's lack of authenticity,
and would have either not purchased the Product or would have paid
less for it if he knew the representations and omissions were false
and misleading.
Mr. Inouye filed the class action on Feb. 21, 2022, asserting
claims under the Florida Deceptive and Unfair Trade Practices Act
("FDUTPA") (Count I), State Consumer Fraud Acts (Count II), the
Magnuson-Moss Warranty Act (Count IV), and for Breach of Contract
(Count III), for Breaches of Express Warranty and Implied Warranty
of Merchantability/Fitness for Particular Purpose (Count IV),
Negligent Misrepresentation (Count V), Fraud (Count VI), and Unjust
Enrichment (Count VII). In his complaint, he seeks class
certification on behalf of similarly situated customers. On July 5,
2022, Adidas moved to dismiss all counts of the complaint and Mr.
Inouye responded.
First, Adidas asserts that Mr. Inouye's FDUPTA claim should be
dismissed because Mr. Inouye has failed to meet the heightened
pleading requirements of Federal Rule of Civil Procedure 9(b). Mr.
Inouye contends that Rule 9(b) does not apply to FDUPTA claims and
that he has plead his claim with sufficient particularity.
Judge Covington finds that Mr. Inouye has not sufficiently plead
the "causation" element of his FDUPTA claim. While Mr. Inouye
alleges that the misleading statements induced him to purchase the
product, he does not allege with particularity that he was induced
by the misleading statements of Adidas. Without alleging that he
viewed misrepresentations attributable to Adidas, Mr. Inouye cannot
support a claim under the FDUPTA. Therefore, Adidas' Motion is
granted with respect to Count I, which is dismissed without
prejudice.
Second, Adidas contends that Mr. Inouye's claim for violation of
state consumer fraud acts, on behalf of the "consumer fraud
multi-state class," should be dismissed because Mr. Inouye has
failed to identify the specific claims, provisions, or theories of
liability he purports to invoke under each jurisdiction's laws. Mr.
Inouye argues that each state consumer fraud statute on which he
intends to rely is similar to FDUPTA.
Judge Covington finds that Mr. Inouye is the only named plaintiff
in the action. Mr. Inouye purports to bring claims under
non-Florida state statutes on behalf of the "Consumer Fraud
Multi-State Class." Because Mr. Inouye neither resides in nor
alleges that he purchased the Product within those states, he lacks
standing to assert claims under those statutes. Although Mr. Inouye
argues that the contours of his claim are substantially similar to
those of the putative class members, that alone is insufficient to
establish standing. Thus, because Mr. Inouye does not have standing
to assert claims on behalf of future, hypothetical plaintiffs, his
state statutory claims based on the law of states in which he does
not reside are dismissed without prejudice.
Third, Adidas contends that Mr. Inouye's breach of contract claim
should be dismissed because Mr. Inouye has not sufficiently alleged
that he had a contract with Adidas. In his response, Mr. Inouye
states that he withdraws his breach of contract claim. Accordingly,
Judge Covington dismisses without prejudice Count III of the
complaint.
Fourth, while Mr. Inouye apparently combined all of his warranty
claims into one single count, Judge Covington addresses his state
law claims, for breaches of express and implied warranties, before
addressing his claim under the Magnuson-Moss Warranty Act.
Because Judge Covington finds no privity between Mr. Inouye and
Adidas, and that the "substantial direct contacts" exception does
not apply, Mr. Inouye has not stated a cognizable claim for a
breach of either express or implied warranty. As Mr. Inouye's
claims fail on that ground, the Court need not address Adidas'
additional arguments. Mr. Inouye's warranty claims are due to be
dismissed without prejudice.
As for his MMWA claims, Judge Covington finds that because he has
not asserted cognizable state-law warranty claims, Mr. Inouye's
MMWA claim is dismissed. For the same reason as Mr. Inouye's
state-law claims, the MMWA claim is dismissed with prejudice. Even
if there were cognizable state-law warranty claims, the MMWA claim
would alternatively be subject to dismissal because Mr. Inouye has
failed to fulfill the 100-named-plaintiff requirement of the MMWA.
Fifth, Adidas asserts that Mr. Inouye's negligent misrepresentation
claim should be dismissed because he has not pled the claim with
sufficient particularity under Rule 9(b). Mr. Inouye contends he
has sufficiently established the "who, what, when, where, and how"
of the alleged misrepresentation.
Judge Covington grants Adidas' Motion with respect to Count V,
which is dismissed without prejudice. She finds that like with his
FDUPTA claim, the claim for negligent misrepresentation fails to
connect the allegedly misleading statements -- the characterization
of the jerseys as "authentic" -- to Adidas. Thus, he has failed to
plead with sufficient particularity that he acted in "justifiable
reliance" on Adidas' alleged misrepresentation.
Sixth, Adidas contends the claim for common-law fraud should be
dismissed because Mr. Inouye has failed to plead it with sufficient
particularity. Mr. Inouye asserts he has sufficiently established
the "who, what, when, where, and how" of the alleged fraud.
Judge Covington holds that just as Mr. Inouye's FDUPTA and
negligent misrepresentation claims fail for lack of causation, so
too must his fraud claim. Mr. Inouye does not allege when, or
whether, he viewed the alleged misrepresentations prior to
purchasing the product. Thus, he has not satisfactorily pleaded
that he acted in "justifiable reliance" on the alleged
misrepresentation in purchasing the product. Therefore, Adidas'
Motion is granted with respect to Count VI, which is dismissed
without prejudice.
Lastly, Adidas argues Mr. Inouye's unjust enrichment claim should
be dismissed because Mr. Inouye has not sufficiently alleged that
he conferred a direct benefit on Adidas. Because Mr. Inouye cannot
establish that he conferred a direct benefit on Adidas, his unjust
enrichment claim must be dismissed with prejudice.
Accordingly, Judge Covington grants the Defendant's Motion to
Dismiss. She dismisses Counts I, II, III, IV, V, and VI without
prejudice. She dismisses Count VII with prejudice. Mr. Inouye may
file an amended complaint within 14 days from the date of the
Order.
A full-text copy of the Court's March 3, 2023 Order is available at
https://tinyurl.com/58ejhrtu from Leagle.com.
ADVANCED PURIFICATION: Crumwell Files ADA Suit in S.D. New York
---------------------------------------------------------------
A class action lawsuit has been filed against Advanced Purification
Engineering Corporation. The case is styled as Denise Crumwell, on
behalf of herself and all other persons similarly situated v.
Advanced Purification Engineering Corporation, Case No.
1:23-cv-02283 (S.D.N.Y., March 16, 2023).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Advanced Purification Engineering Corp. (APEC) is a leading
solution provider for premium drinking and filtration systems in
the United States.[BN]
The Plaintiff is represented by:
Michael A. LaBollita, Esq.
GOTTLIEB & ASSOCIATES
150 E. 18 St., Suite PHR
New York, NY 10003
Phone: (212) 228-9795
Email: michael@gottlieb.legal
AIR PRODUCTS: Filing of Class Cert. Bid Due Jan. 19, 2024
---------------------------------------------------------
In the class action lawsuit captioned as Trevor Johnson v. Air
Products and Chemicals, Inc. et al., Case No. 2:22-cv-07327-JLS-PD
(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: May 12, 2023
Last Day to File a Motion for Class
Certification: Jan. 19, 2024
Last Day to File an Opposition to Motion
for Class Certification: Mar. 4, 2023
Last Day to File a Reply to Motion for
Class Certification: Apr. 1, 2024
Fact Discovery Cutoff: Dec. 15, 2023
Air Products and Chemicals is an American international corporation
whose principal business is selling gases and chemicals for
industrial uses.
A copy of the Court's order dated Mar. 7, 2023 is available from
PacerMonitor.com at https://bit.ly/3JqrF95 at no extra charge.[CC]
ALDI INC: Filing of Class Certification Bid Due Sept. 22
--------------------------------------------------------
In the class action lawsuit captioned as Elizabeth Henriquez v.
ALDI Inc., Case No. 2:22-cv-06060-JLS-JEM (C.D. Cal.), the Court
entered an order setting the trial for a date agreed upon by the
parties:
Last Day to File a Motion to Add
Parties or Amend Pleadings: May 12, 2023
Last Day to File a Motion for Class
Certification: Sept. 22, 2023
Last Day to File an Opposition to Motion
for Class Certification: Sept. 22, 2023
Last Day to File a Reply to Motion for
Class Certification: Nov. 3, 2023
Fact Discovery Cutoff: Jan. 5, 2024
Last Day to File Motions (Excluding
Daubert Motions and all other Motions
in Limine): Jan. 19, 2024
Aldi operates as a supermarket. The Company offers groceries, meat,
fresh produce, wine, beer, beverages, and other home products.
A copy of the Court's order dated Mar. 7, 2023 is available from
PacerMonitor.com at https://bit.ly/4094qaw at no extra charge.[CC]
ALL THAT SHE WANTS: Hwang Files ADA Suit in E.D. New York
---------------------------------------------------------
A class action lawsuit has been filed against All That She Wants,
LLC. The case is styled as Jenny Hwang, on behalf of herself and
all others similarly situated v. All That She Wants, LLC, Case No.
1:23-cv-02041 (E.D.N.Y., March 16, 2023).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
All That She Wants -- https://allthatshewantsboutique.com/ -- is a
fun, budget friendly way to get everything from new clothing, shoes
and accessories.[BN]
The Plaintiff is represented by:
Mars Khaimov, Esq.
14749 71st Ave.
Flushing, NY 11367
Phone: (917) 915-7415
Email: mars@khaimovlaw.com
ALTICE USA: Denial of Arbitration Bid in Peterson Suit Reversed
---------------------------------------------------------------
In the case, ALTICE USA, INC., D/B/A SUDDENLINK COMMUNICATIONS,
Appellant v. SANDRA PETERSON, Appellee, Case No. CV-21-32 (Ark.
App.), the Court of Appeals of Arkansas, Division II, reverses the
circuit court's denial of Suddenlink's motion to compel arbitration
and remands the case.
Altice does business in Arkansas as Suddenlink Communications.
Suddenlink provides cable television, internet, and telephone
services to subscribing customers throughout Arkansas. Ms. Peterson
filed a complaint in the Clark County Circuit Court alleging that
Suddenlink broke promises it made to her at the time she subscribed
for Suddenlink's services. The complaint principally claimed breach
of contract and violations of the Arkansas Deceptive Trade
Practices Act.
Ms. Peterson subscribed to Suddenlink's cable television and
internet services on a month-to-month basis. In a complaint she
filed on July 29, 2020, she alleged that she had never signed, or
received, any sort of written agreement with Suddenlink, and when
she "agreed to do business" with the provider, she was promised an
Amazon gift card and "$54.99 for life, no contract, for television
and internet." Ms. Peterson alleged that she was charged more than
the promised $54.99 and that her monthly bills otherwise contained
"multiple, unexplained charges."
On the basis of these and other facts, Ms. Peterson claimed that
she should be awarded damages because Suddenlink violated the
Arkansas Deceptive Trade Practices Act and "breached its agreement
with her by failing to fulfill its promises to provide the gift
card and to provide internet and telephone services for $54.99 per
month, for life.
Suddenlink responded with a motion to compel arbitration on Sept.
3, 2020. It urged the circuit court to dismiss the complaint
because Suddenlink and Ms. Peterson had a valid agreement to settle
their disputes through arbitration. Suddenlink said that the
agreement manifested in two ways. First, it alleged that Ms.
Peterson signed a work order when a Suddenlink technician installed
her television and internet services. That work order referenced
"general terms and conditions of service" that the technician
provided during the installation appointment, and it stated that,
by signing, Ms. Peterson acknowledged that she "read and agreed to"
those terms and conditions. Those terms and conditions, Suddenlink
said, included the provision for binding arbitration. Second,
Suddenlink claimed that Ms. Peterson accepted the terms of its
Residential Services Agreement (RSA) and its arbitration provision
when she paid her monthly invoices from December 2019 until August
2020.
Daniel Fitzgibbon, a vice president in Altice USA's legal
department, submitted an affidavit in support of Suddenlink's
motion. He testified that Ms. Peterson signed a work order on Dec.
12, 2019. He added that monthly billing statements sent to her
contain a link to Suddenlink's RSA and provided that payment of the
bill confirmed her acceptance of the terms of the RSA. Ms. Peterson
responded that Suddenlink failed to offer proof that she agreed to
arbitrate her disputes with Suddenlink.
The circuit court denied Suddenlink's motion to compel arbitration
in a brief order entered on Dec. 14, 2020. Suddenlink now appeals
this order, arguing that Ms. Peterson manifested her agreement to
the arbitration provision when she paid monthly invoices referring
her to the RSA on its website. Suddenlink also asserts that the
claims that Ms. Peterson filed in circuit court are within the
scope of the arbitration agreement.
Ms. Peterson responds that the circuit court did not err when it
denied Suddenlink's motion to compel arbitration. First, she
contends that she had no reason to believe that she was under
contract with Suddenlink because the provider routinely advertises
that it offers its services on a "no contract" basis, and there was
no proof that she assented to a written agreement to arbitrate. Ms.
Peterson further argues that her payment of her monthly bills falls
short of manifesting her assent because they are not contracts.
According to Ms. Peterson, the bills contain only unexplained
charges which Suddenlink claims to be owed, and the bills impose no
obligation on Suddenlink. She also claims that they fail to
unequivocally incorporate the terms of the RSA—even if they could
be considered contracts themselves. She also suggests, in any
event, that the RSA's merger clause prohibited Suddenlink from
using the invoices to prove that she manifested her assent to
arbitration.
Ms. Peterson alternatively argues that even if she manifested her
assent to the RSA, the arbitration clause remains unenforceable for
several reasons. First, she contends that the RSA as a whole lacks
mutuality of obligation because it reserves to Suddenlink "the
right to unilaterally change any portion of the terms at any time"
and imposes a host of obligations on subscribers that it does not
also impose on Suddenlink. The arbitration clause itself also lacks
mutuality of obligation because, according to Ms. Peterson, other
terms in the RSA allow Suddenlink to bypass arbitration in favor of
charging late fees, to terminate service, to refer accounts to
collection agencies, and to limit the customer's ability to dispute
charges. Ms. Peterson also suggests that the arbitration clause is
substantively and procedurally unconscionable and, finally, that
the Court of Appeals should affirm because Suddenlink has failed to
establish that its franchise agreement with the city of Arkadelphia
would allow it to force Arkadelphia citizens into arbitration.
First, the Court of Appeals agrees with Suddenlink's argument that
the circuit court erred by denying its motion to compel arbitration
because it demonstrated that it had a valid agreement to arbitrate
with Ms. Peterson. It says the case is controlled by its decision
in Altice USA, Inc. v. Johnson, 2023 Ark. App. 120, which it also
decides today on very similar facts.
There, it held that Ms. Johnson assented to the terms and
conditions in the RSA when she paid her monthly invoices, which,
like the invoices at issue in the present case, directed Ms.
Johnson to the RSA on Suddenlink's website and provided that
payment of her bill was confirmation of her agreement to those
terms. Consequently, the Court of Appeals applies Johnson to hold
that Ms. Peterson, who did not dispute paying the invoices she
received from Suddenlink from December 2019 until August 2020,
assented to the terms of the RSA, including the arbitration
provision.
The Court of Appeals also holds, in light of its decision in
Johnson, that Ms. Peterson's defenses against enforcement of the
arbitration provision also lack merit. That is, Johnson directs its
conclusion that the RSA, as it appears on Suddenlink's website,
meets the FAA's requirement that arbitration provisions must be
written.
The Court of Appeals also agrees with Suddenlink's contention that
the circuit court erred in denying the motion to compel arbitration
when it found that Ms. Peterson's claims were outside the scope of
the arbitration provision. It opines that the claims in Ms.
Peterson's complaint alleging breach of contract and violation of
the Arkansas Deceptive Trade Practice Act clearly fall within the
broad scope of the RSA's arbitration provision, and Ms. Peterson
does not make any argument to the contrary in the present case.
Accordingly, inasmuch as the circuit court denied the motion to
compel arbitration based on a conclusion that Ms. Peterson's claims
were outside the scope of the agreement, it must reverse.
The Court of Appeals concludes that the circuit court erred when it
denied Suddenlink's motion to compel arbitration. Ms. Peterson's
payment of the invoices that she received from Suddenlink, which
directed her to the RSA available on Suddenlink's website,
manifested her assent to its terms, and the arbitration provision
otherwise appears in writing on Suddenlink's website and is
supported by mutuality of obligation. Ms. Peterson's arguments
urging us to affirm, moreover, lack merit.
A full-text copy of the Court's March 1, 2023 Opinion is available
at https://tinyurl.com/29769z65 rom Leagle.com.
Husch Blackwell LLP, by: Laura C. Robinson --
laura.robinson@huschblackwell.com -- and Mark G. Arnold, pro hac
vice; and McMillan, McCorkle & Curry, LLP, by: F. Thomas Curry, for
the Appellant.
Thrash Law Firm, P.A., by: Thomas P. Thrash -- tpthrash@vorys.com
-- and Will Crowder; and Turner & Turner, PA, by: Todd Turner, for
the Appellees.
ALTICOR INC: Parties Seek to Certify Plan Participant Class
-----------------------------------------------------------
In the class action lawsuit captioned as JOSHUA GARCIA, ANDREA P.
BRANDT and HOWARD HART, individually and on behalf of all others
similarly situated, v. ALTICOR, INC., THE BOARD OF DIRECTORS OF
ALTICOR, INC., THE FIDUCIARY COMMITTEE OF ALTICOR, INC., and JOHN
DOES 1-30, Case No. 1:20-cv-01078-PLM-PJG (W.D. Mich.), the Parties
ask the Court to enter an order certifying the following class:
"All persons, except Defendants and their immediate family
members, who were participants in or beneficiaries of the
Plan, at any time between November 9, 2014 through the date
of judgment"
The Court further ordered that the Plaintiffs Joshua Garcia, Andrea
P. Brandt, and Howard Hart are appointed as Class representatives
and Capozzi Adler, P.C. is appointed as Class Counsel.
On November 19, 2020, the Plaintiffs filed the original Class
Action Complaint. On February 19, 2021, the Defendants moved to
dismiss the Complaint, which Motion was denied by the Court on
August 9, 2021.
On January 6, 2023, the Plaintiffs filed their Motion for Class
Certification and supporting memorandum and exhibits.
Alticor owns and manages manufacturing and distribution
facilities.
A copy of the Court's order dated March 6, 2023 is available from
PacerMonitor.com at https://bit.ly/42teVaD at no extra charge.[CC]
The Plaintiffs are represented by:
Mark K. Gyandoh, Esq.
CAPOZZI ADLER
312 Old Lancaster Road
Merion Station, PA 19066
Telephone: (610) 890-0200
Facsimile: (717) 233-4103
E-mail: markg@capozziadler.com
- and -
Donald F. Reavey, Esq.
2933 North Front Street
Harrisburg, PA 17110
Telephone: (717) 233-4101
Facsimile: (717) 233-4103
E-mail: donr@capozziadler.co
The Defendant is represented by:
Edward J. Bardelli, Esq.
WARNER NORCROSS + JUDD LLP
150 Ottawa Ave. NW, Suite 1500
Grand Rapids, Michigan 49503
Telephone: (616) 752-2165
Facsimile: (616) 752-2500
E-mail: ebardelli@wnj.com
- and -
Howard Shapiro, Esq.
Stacey C.S. Cerrone, Esq.
Lindsey Chopin, Esq.
Adam R. Carlisle, Esq.
JACKSON LEWIS P.C.
601 Poydras Street, Suite 1400
New Orleans, LA 70130
Telephone: (504) 208-1755
Facsimile: (504) 208-1759
E-mail: Howard.Shapiro@jacksonlewis.com
Stacey.Cerrone@jacksonlewis.com
Lindsey.Chopin@jacksonlewis.com
Adam.Carlisle@jacksonlewis.com
AMAZON.COM INC: Adams Sues Over Illegal Automatic Renewal Scheme
----------------------------------------------------------------
Cynthia Adams, individually and on behalf of all others similarly
situated v. AMAZON.COM, INC. and AMAZON.COM SERVICES LLC, Case No.
7:23-cv-00121-EKD (W.D. Va., Feb. 27, 2023), is brought against the
Defendants for engaging in an illegal "automatic renewal" scheme
with respect to their subscription plans for Amazon-branded
products and services available exclusively to consumers who enroll
in Defendants' auto-renewal membership programs (collectively, the
"Amazon Subscriptions," enumerated below) through their website at
https://www.amazon.com/ (the "Amazon Website") and/or their mobile
application(s) and/or set-top device(s) (collectively, the "Amazon
Apps") (together with Amazon Website, the "Amazon Platform").
Relevant to the Plaintiff's allegations, when consumers sign up for
the Amazon Subscriptions, Defendants enroll consumers in a program
that automatically renews the Amazon Subscriptions from
month-to-month or year-to-year and results in monthly or annual
charges to the consumer's credit card, debit card, or third-party
payment account (collectively, "Payment Method"). In doing so,
Defendants fail to provide the requisite disclosures and
authorizations required under Virginia's Automatic Renewal law
("ARL"), in direct violation of Virginia's Consumer Protection Act
("VCPA"), says the complaint.
The Plaintiff signed up for a free trial of the Defendants' monthly
Amazon Prime subscription from the Defendants' website while in
Virginia in December 2019 or January 2020.
Amazon is the world's largest online retailer and a prominent
provider of cloud and web-based products and services, including
the Amazon Subscriptions.[BN]
The Plaintiff is represented by:
Pierce C. Murphy, Esq.
SILVERMAN | THOMPSON | SLUTKIN | WHITE LLC
400 East Pratt St., Suite 900
Baltimore, Maryland 21202
Phone: (410) 385-2225
Facsimile: (410) 547-2432
Email: pmurphy@silvermanthompson.com
- and -
Neal J. Deckant, Esq.
Julia K. Venditti, Esq.
BURSOR & FISHER, P.A.
1990 North California Blvd., Suite 940
Walnut Creek, CA 94596
Phone: (925) 300-4455
Facsimile: (925) 407-2700
Email: ndeckant@bursor.com
jvenditti@bursor.com
- and -
Frederick J. Klorczyk III, Esq.
BURSOR & FISHER, P.A.
888 Seventh Avenue
New York, NY 10019
Phone: (646) 837-7150
Facsimile: (212) 989-9163
Email: fklorczyk@bursor.com
AMAZON.COM SERVICES: Court Junks Hamilton Class Action
-------------------------------------------------------
In the class action lawsuit captioned as DAN HAMILTON, Individually
and on behalf of all others similarly situated, v. AMAZON.COM
SERVICES LLC, Case No. 1:22-cv-00434-PAB-STV (D. Colo.), the Hon.
Judge Philip A. Brimmer entered an order:
1. granting the Defendant Amazon.com Services LLC's motion to
dismiss the Plaintiff's individual and class action complaint;
2. denying as moot the Plaintiff's motion to certify class
action and motion for order certifying Determinative Question of
Colorado Law to the Colorado Supreme Court;
3. dismissing with prejudice the Plaintiff's first claim;
4. closing the case.
The Court finds that Colorado law is silent on whether Amazon was
required to include HIP when calculating Mr. Hamilton's regular
rate of pay. Therefore, Mr. Hamilton has failed to state a claim
that Amazon violated Colorado law.
Amazon argues that the inclusion of the phrase "pay for non-work
hours" at the end othe list "simply indicates that one or some of
those categories are for non-work hours, but does not speak to
whether all of them are."
The Court rejects this argument since every other type of
compensation listed is a type of pay for non-work hours. The
inclusion of the word "other" in the phrase "or other pay for
non-work hours" indicates that "holiday pay" refers to compensation
for non-work hours.
Accordingly, HIP is not "holiday pay" within the meaning of the
Orders because HIP is compensation for hours worked on company
holidays. The FLSA permits employers to exclude premiums for
working on holidays from the calculation of a worker's regular rate
of pay, so long as the holiday premium is at least 1.5 times the
worker's rate of pay for non-overtime hours on other days.
Amazon's exclusion of HIP from the regular rate of pay complies
with the FLSA, since HIP is 1.5 times a worker's usual hourly rate
of pay. Because Colorado law is silent on the topic of holiday
premium pay, Amazon's practice of following the FLSA is not a
violation of Colorado law.
This case focuses on how Amazon calculates overtime pay for its
hourly employees. Amazon owns and operates at least five warehouses
in Colorado as part of its nationwide fulfillment network.
Amazon owns and operates at least five warehouses in Colorado as
part of its nationwide fulfillment network.
A copy of the Court's order dated March 3, 2023 is available from
PacerMonitor.com at https://bit.ly/3lcjEfZ at no extra charge.[CC]
AMAZON.COM SERVICES: Judgment on Pleadings in Buero Suit Affirmed
-----------------------------------------------------------------
In the case, LINDSEY BUERO, Individually and on behalf of all
similarly situated, Plaintiff-Appellant v. AMAZON.COM SERVICES,
INC., DBA Amazon Fulfillment Services, Inc., a foreign corporation;
AMAZON.COM, INC., a foreign corporation, Defendants-Appellees, Case
No. 20-35633 (9th Cir.), the U.S. Court of Appeals for the Ninth
Circuit affirms the district court's grant of judgment on the
pleadings to the Defendants.
Buero filed a class action against Amazon.com Services, Inc. and
Amazon.com, Inc., alleging that the Defendants' failure to
compensate employees for time spent waiting for and passing through
mandatory security screening before and after work shifts and
breaks violates Oregon's wage and hour laws. The district court
granted judgment on the pleadings to the Defendants, and the
Plaintiff timely appealed to the Ninth Circuit.
Because there was no controlling Oregon precedent on that important
and dispositive question of state law, the Ninth Circuit certified
the issue to the Oregon Supreme Court: Under Oregon law, is time
that employees spend on the employer's premises waiting for and
undergoing mandatory security screenings compensable?
The Oregon Supreme Court answered that question in the negative:
Oregon law aligns with federal law regarding what activities are
compensable. Therefore, under Oregon law, as under federal law,
time that employees spend on the employer's premises waiting for
and undergoing mandatory security screenings before or after their
work shifts is compensable only if the screenings are either (1) an
integral and indispensable part of the employees' principal
activities or (2) compensable as a matter of contract, custom, or
practice.
The Ninth Circuit finds that the Plaintiff's complaint does not
allege that either of the identified exceptions applies.
Accordingly, on de novo review, it now holds that the district
court properly granted judgment on the pleadings to the
Defendants.
Although the Oregon Supreme Court's opinion did not address
separately or directly the Plaintiff's meal-period claim, the Ninth
Circuit states that the logic of that opinion yields the same
result. In addition to requiring security screening when employees
arrive at work and leave work, the Defendants require employees to
undergo security screening if they choose to leave the premises
during meal periods and also choose to take belongings with them.
Under Oregon law, employees must be "relieved of all duties" during
meal breaks. That regulation, like the ones that the Oregon Supreme
Court discussed, "aligns with" the comparable federal regulation
which requires employees on meal breaks to be completely relieved
from duty. Under both federal and state law, the test is whether an
employee performed work duties during the meal period.
Because the Oregon Supreme Court has squarely held that Oregon law
aligns with federal law regarding what activities are compensable
and because the Plaintiff fails to allege that undergoing a
mandatory security screening is "an integral and indispensable
part" of an employee's principal activities, the Ninth Circuit
rules that her claim fails.
A full-text copy of the Court's March 3, 2023 Opinion is available
at https://tinyurl.com/5n7rvzmv from Leagle.com.
Lisa T. Hunt -- lthunt@lthuntlaw.com -- (argued), Law Office of
Lisa T. Hunt LLC, Lake Oswego, Oregon; David A. Schuck --
dschuck@wageclaim.org -- Schuck Law LLC, Vancouver, Washington, for
the Plaintiff-Appellant.
Michael E. Kenneally -- michael.kenneally@morganlewis.com --
(argued) and David B. Salmons -- david.salmons@morganlewis.com --
Morgan Lewis & Bockius LLP, Washington, D.C.; Richard G. Rosenblatt
-- richard.rosenblatt@morganlewis.com -- Morgan Lewis & Bockius
LLP, Princeton, New Jersey; Sarah J. Crooks --
SCrooks@perkinscoie.com -- Perkins Coie LLP, Portland, Oregon, for
the Defendants-Appellees.
AMAZON.COM SERVICES: Williams Loses Bid to Certify Employee Class
-----------------------------------------------------------------
In the class action lawsuit captioned as DAVID G WILLIAMS, v.
AMAZON.COM SERVICES LLC, et al., Case No. 3:22-cv-01892-VC (N. D.
Cal.), the Hon. Judge Vince Chhabria entered an order denying
motion for class certification of:
"nearly 7,000 Amazon employees who worked from home in
California at any time from March 15, 2020 through July 1,
2022."
The motion is denied because Williams has not met his burden to
show that common questions would predominate at trial. His
principal theory of predominance -- based on Amazon's alleged
"common policy" regarding reimbursement—is not supported by the
record.
And while his second theory of predominance—based on Amazon's
alleged knowledge that its employees were working from home and
thus incurring home internet expenses—has more potential, it is
inadequately expounded. Because it's plausible that Williams could
certify a class based on his second theory of predominance, denial
is without prejudice to Williams filing a renewed motion.
David Williams, an Amazon employee, contends the company violated
the California Labor Code by failing to reimburse him and other
employees for home internet expenses incurred during the first
couple years of the COVID-19 pandemic.
Amazon Services offers many of the Web service platforms that are
Amazon offers.
A copy of the Court's order dated Mar. 7, 2023 is available from
PacerMonitor.com at https://bit.ly/3ZWDlrc at no extra charge.[CC]
AMERICAN FAMILY: Loch Conditional Cert Bid Denied w/o Prejudice
---------------------------------------------------------------
In the class action lawsuit captioned as JOAN LOCH, individually
and on behalf of all others similarly situated, v. AMERICAN FAMILY
MUTUAL INSURANCE COMPANY, Case No. 3:22-cv-00213-jdp (W.D. Wis.),
the Hon. Judge James D. Peterson entered an order that:
1. The Plaintiff's motion for conditional certification, is
denied without prejudice.
2. The Plaintiff may have until April 3, 2023, to file a motion
to substitute the named the Plaintiff and renew the motion for
conditional certification.
The Defendant will have until April 13, 2023 to respond.
3. The parties' joint motion to extend dispositive motions
deadlines is granted in part and denied in part.
The remaining pretrial deadlines and trial date are struck.
The court will reset the schedule in this case after resolving the
issue of conditional certification.
In revising the notice, the Plaintiff's counsel should be aware of
some minor problems with the notice submitted by Loch.
First, the notice fails to advise putative collective members of
the binding effect of any future judgment -- including trial or
settlement—if they opt in to the collective.
Second, the job titles listed in the collective definition are
obsolete. Instead, the job title of Casualty Med Pay No-Fault
Claims Adjuster should be used to reflect the job title that has
been used by American Family since 2019.
Third, although the notice discusses legal representation, it does
not discuss how class counsel will be paid. Fourth, the opt-in
period of 90 days, with a reminder notice to be sent to collective
members after 45 days, is much longer than that usually approved by
the court, even for a nationwide collective. An opt-in period of 45
to 60 days with no reminder notice is more typical.
The Plaintiff Joan Loch contends that her former employer, the
Defendant American Family Mutual Insurance Company, violated the
Fair Labor Standards Act (FLSA) and Minnesota State wage law by
misclassifying her and other insurance adjusters as exempt from
overtime failing to pay them an overtime premium for hours they
worked in excess of 40 in a workweek.
Former American Family employees Camille Grandbois, Sharon Kocina,
and Nancy Ochs have consented to joining the lawsuit.
Loch defines the proposed collective as:
"all current and former Personal Injury Protection, Med-Pay
and/or No-Fault Adjusters who worked for American Family
Casualty Ins. Co., anywhere in the United States, at any
time from April 7, 2019, through the final disposition of
this matter."
Although Loch seeks conditional certification of a collective from
three years before the date she filed suit, she asks to send notice
only to those putative collective members who worked for American
Family within three years of the date of the order approving notice
to the collective.
American Family offers auto, home, life, umbrella, business,
health, and farm and ranch insurance products and services.
A copy of the Court's order dated March 3, 2023 is available from
PacerMonitor.com at https://bit.ly/3Lp6o29 at no extra charge.[CC]
AMERICAN WAGERING: Geske Files Suit in N.D. Illinois
----------------------------------------------------
A class action lawsuit has been filed against American Wagering,
Inc. The case is styled as Cassandra Geske, individually, and on
behalf of all others similarly situated v. American Wagering, Inc.
doing business as: William Hill and Caesars Sportsbook, Case No
1:23-cv-01665 (N.D. Ill., March 16, 2023).
The nature of suit is stated as Other Fraud.
American Wagering, Inc. manages race and sports books. The Company
through its subsidiaries sells and services race and sports book
computer systems.[BN]
The Plaintiff is represented by:
Andrew Shamis, Esq.
SHAMIS & GENTILE, PA
14 NE 1st Ave., Suite 705
Miami, FL 33132
Phone: (305) 479-2299
Email: ashamis@shamisgentile.com
ANKER TECHNOLOGY: Desai Suit Transferred to N.D. Illinois
---------------------------------------------------------
The case styled as Sagar R. Desai, individually and on behalf of
all others similarly situated v. Anker Technology Corporation,
Fantasia Trading LLC, Power Mobile Life LLC, Case No. 1:23-cv-20070
was transferred from the U.S. District Court for the Southern
District of Florida, to the U.S. District Court for the Northern
District of Illinois on March 15, 2023.
The District Court Clerk assigned Case No. 1:23-cv-01607 to the
proceeding.
The nature of suit is stated as Real Property: Tort Product
Liability for Fed. Election Commission: Failure Enforce
Compliance.
Anker -- https://www.anker.com/ -- is the global leader in charging
technology, including wireless charging, car charging, and our
best-selling portable and wall chargers.[BN]
The Plaintiff is represented by:
Benjamin Jacobs Widlanski, Esq.
Robert J. Neary, Esq.
KOZYAK TROPIN THROCKMORTON LLP
2525 Ponce De Leon Boulevard, 9th Floor
Miami, FL 33134
Phone: (305) 372-1800
Fax: (305) 372-3508
Email: bwidlanski@kttlaw.com
rn@kttlaw.com
- and -
Robert Michael Stein, Esq.
RENNERT VOGEL MANDLER & RODRIGUEZ, P.A.
100 SE 2nd St., Suite 2900
Miami, FL 33131
Phone: (305) 423-3437
Fax: (305) 376-6176
Email: rstein@rvmrlaw.com
- and -
Daniel Scott Maland, Esq.
MARK MIGDAL AND HAYDEN
80 SW 8th Street
Miami, FL 33130
Phone: (305) 374-0440
Email: dmaland@kttlaw.com
The Defendants are represented by:
Diana Marie Fassbender, Esq.
ORRICK
1152 15th Street NW
Washington, DC 20005
Phone: (202) 339-8533
Fax: (202) 339-8400
Email: dszego@orrick.com
APRIA HEALTHCARE: Toro Files ADA Suit in S.D. New York
------------------------------------------------------
A class action lawsuit has been filed against Apria Healthcare,
LLC. The case is styled as Luis Toro, on behalf of himself and all
others similarly situated v. Apria Healthcare, LLC, Case No.
1:23-cv-02127 (S.D.N.Y., March 13, 2023).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Apria -- https://www.apria.com/ -- is a leading US provider of home
medical equipment delivery and clinical support, with services for
COPD, sleep apnea, wound therapy, and more.[BN]
The Plaintiff is represented by:
Mars Khaimov, Esq.
10826 64th Avenue, Ste. 2nd Floor
Forest Hills, NY 11375
Phone: (917) 915-7415
Email: mars@khaimovlaw.com
ARIZONA BEVERAGES: Deadline Extension of Class Cert Briefing Sought
-------------------------------------------------------------------
In the class action lawsuit captioned as Kenneth Crawford,
individually and on behalf of all others similarly situated, v.
Arizona Beverages USA LLC, Case No. 3:22-cv-00220-DWD (S.D. Ill.),
the Plaintiff, with consent of the Defendant, requests entry of an
order granting an extension of 45 days for the briefing deadlines
for class certification.
On December 15, 2022, the Parties filed a joint stipulation
extending the discovery schedule and class certification
deadlines.
On December 16, 2022, this Court construed the stipulation as a
joint motion to extend the briefing deadlines for class
certification and granted that motion ordering:
(1) the Plaintiff's Motion for Class Certification and
Memorandum to be filed by April 29, 2023,
(2) the Defendant's opposition to be filed by June 30, 2023,
and
(3) replies, if any, to be filed by July 14, 2023.
Arizona Beverages is a producer of many flavors of iced tea, juice
cocktails, and energy drinks.
A copy of the Court's order the Plaintiff's motion dated March 3,
2023 is available from PacerMonitor.com at https://bit.ly/42eW2rK
at no extra charge.[CC]
The Plaintiff is represented by:
Spencer Sheehan, Esq.
SHEEHAN & ASSOCIATES PC
60 Cutter Mill Rd Suite 409
Great Neck, NY 11021
Telephone: (516) 268-7080
The Defendant is represented by:
Robert P. Donovan, Esq.
STEVENS LEE
Telephone: (201) 857-6778
Facsimile: (610) 371-7938
E-mail: robert.donovan@stevenslee.com
ASSET RECOVERY: Cardero FDCPA Suit Removed to S.D. Florida
----------------------------------------------------------
The case styled as Mauricio Cardero, on behalf of himself and all
others similarly situated v. Asset Recovery Bureau, LLC, Case No.
22-023094-CA-01 was removed from the 11th Judicial Circuit
Miami-Dade County, Florida, to the U.S. District Court for the
Southern District of Florida on Jan. 23, 2023.
The District Court Clerk assigned Case No. 1:23-cv-20255-RNS to the
proceeding.
The lawsuit is brought over alleged violation of the Fair Debt
Collection Practices Act.
Asset Recovery Bureau LLC -- https://thearbllc.com/ -- are a
licensed debt recovery organization.[BN]
The Plaintiff is represented by:
James Lee Davidson, Esq.
Jesse S Johnson, Esq.
GREENWALD DAVIDSON RADBIL PLLC
7601 N. Federal Highway, Suite A-230
Boca Raton, FL 33487
Phone: (561) 826-5477
Fax: (561) 961-5684
Email: jdavidson@gdrlawfirm.com
jjohnson@gdrlawfirm.com
- and -
Matisyahu H. Abarbanel
LOAN LAWYERS, LLC
2150 South Andrews Avenue, 2nd Floor
Fort Lauderdale, FL 33316
Phone: (954) 523-4357
Fax: (954) 581-2786
Email: matis@fight13.com
- and -
Matthew David Bavaro
LOAN LAWYERS
3201 Griffin Road, Suite 100
Fort Lauderdale, FL 33312
Phone: (954) 523-4357
Email: matthew@fight13.com
The Defendant is represented by:
Alessandro A. Apolito, Esq.
LIPPES MATHIAS WEXLER FRIEDMAN LLP
10151 Deerwood Park Blvd.
Building 300, Ste. 300
Jacksonville, FL 32256
Phone: (904) 660-0020
Email: aapolito@lippes.com
BARLEAN'S ORGANIC: Class Action Settlement Gets Final Nod
---------------------------------------------------------
In the class action lawsuit captioned as MICHAEL TESTONE, COLLIN
SHANKS, and LAMARTINE PIERRE, on behalf of themselves and all
others similarly situated, v. BARLEAN'S ORGANIC OILS, LLC, Case No.
3:19-cv-00169-RBM-BGS (S.D. Cal.), the Hon. Judge Ruth Bermudez
Montenegro entered an order:
(1) granting motion for attorneys' fees, costs, and service
awards; and
(2) granting motion for final approval of class action
settlement.
Pursuant to Rule 23 of the Federal Rules of Civil Procedure, the
Court certifies the following Class for settlement purposes:
"all persons who in the United States, during the Class
Period, purchased Coconut Oil Products, for personal or
household use."
Pursuant to Rule 23(a) of the Federal Rules of Civil Procedure, the
Court finds that the named the Plaintiffs in this action, Michael
Testone, Collin Shanks, and Lamartine Pierre, are members of the
Settlement Class, his/her claims are typical of the Settlement
Class, and he/she fairly and adequately protected the interests of
the Settlement Class throughout the proceedings in the action.
The Court appoints Michael Testone, Collin Shanks, and Lamartine
Pierre as Class Representatives.
The Court finds that the Settlement Class meets all requirements of
Rules 23(a) and (b)(3) of the Federal Rules of Civil Procedure for
certification of the class claims alleged in the Amended
Complaint.
A total of 162 Settlement Class Members submitted timely and proper
Requests for Exclusion, as reported in the declaration of the Class
Administrator submitted to the Court.
The Court orders that each of the individuals listed by the Class
Administrator as having submitted a valid Request for Exclusion is
excluded from the Settlement Class. Those individuals will not be
bound by the Settlement Agreement, and neither will they be
entitled to any of its benefits.
The Court finds the requested $7,500 service awards reasonable and
within the range awarded in this District. 7 Accordingly, the Court
awards the requested $7,500 award to each Class Representative for
a total of $22,500.
The the Plaintiffs Michael Testone, Collin Shanks, and Lamartine
Pierre filed this lawsuit against the Defendant Barlean's Organic
Oils, LLC on January 24, 2019, alleging the Defendant "misleadingly
markets its coconut oil Products as inherently
healthy, and a healthy alternative to butter and various cooking
oils, despite that coconut oil is actually inherently unhealthy,
and a less healthy option to these alternatives."
The Court granted the Plaintiffs' motion for class certification on
September 28, 2021. The parties negotiated a settlement, and the
Court granted preliminary approval on November 10, 2022.
Barleans provides organic oil products. The Company offers flax,
omega, fish, and specialty oils, as well as seeds and olive leaf
products.
A copy of the Court's order dated March 6, 2023 is available from
PacerMonitor.com at https://bit.ly/3JkJJBp at no extra charge.[CC]
BELFOR FRANCHISE: Crumwell Files ADA Suit in S.D. New York
----------------------------------------------------------
A class action lawsuit has been filed against Belfor Franchise
Group, LLC. The case is styled as Denise Crumwell, on behalf of
herself and all other persons similarly situated v. Belfor
Franchise Group, LLC, Case No. 1:23-cv-02142 (S.D.N.Y., March 13,
2023).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Belfor Franchise Group LLC -- http://belforfranchisegroup.com/--
was founded in 2007. The company's line of business includes
providing special trade contracting services.[BN]
The Plaintiff is represented by:
Dana Lauren Gottlieb, Esq.
GOTTLIEB & ASSOCIATES
150 E. 18 St., Suite PHR
New York, NY 10003
Phone: (917) 796-7437
Fax: (212) 982-6284
Email: danalgottlieb@aol.com
BIG APPLE: Toro Files ADA Suit in S.D. New York
-----------------------------------------------
A class action lawsuit has been filed against Big Apple
Collectibles Corp. The case is styled as Andrew Toro, on behalf of
himself and all others similarly situated v. Big Apple Collectibles
Corp., Case No. 1:23-cv-02128 (S.D.N.Y., March 13, 2023).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Big Apple Collectibles -- https://www.bigapplecollectibles.com/ --
provides the largest selection of toys and collectibles.[BN]
The Plaintiff is represented by:
Mars Khaimov, Esq.
10826 64th Avenue, Ste. 2nd Floor
Forest Hills, NY 11375
Phone: (917) 915-7415
Email: mars@khaimovlaw.com
BLINK CHARGING: Continues to Defend Consolidated Securities Suit
----------------------------------------------------------------
Blink Charging Co. disclosed in its Form 10-K Report for the fiscal
year ending December 31, 2021 filed with the Securities and
Exchange Commission on March 14, 2023, that the Company continues
to defend itself from the consolidated securities class suit in the
United States District Court for the Southern District of Florida.
On August 24, 2020, a purported securities class action lawsuit,
captioned Bush v. Blink Charging Co. et al., Case No. 20-cv-23527,
was filed in the United States District Court for the Southern
District of Florida against the Company, Michael Farkas (Blink's
Chairman of the Board and Chief Executive Officer), and Michael
Rama (Blink's Chief Financial Officer) (the "Bush Lawsuit").
On September 1, 2020, another purported securities class action
lawsuit, captioned Vittoria v. Blink Charging Co. et al., Case No.
20-cv-23643, was filed in the United States District Court for the
Southern District of Florida against the same defendants and
seeking to recover the same alleged damages (the "Vittoria
Lawsuit").
On October 1, 2020, the court consolidated the Vittoria Lawsuit
with the Bush Lawsuit and on December 21, 2020 the court appointed
Tianyou Wu, Alexander Yu and H. Marc Joseph to serve as the Co-Lead
Plaintiffs. The Co-Lead Plaintiffs filed an Amended Complaint on
February 19, 2021.
The Amended Complaint alleges, among other things, that the
defendants made false or misleading statements about the size and
functionality of the Blink Network and asserts claims under
Sections 10(b) and 20(a) of the Securities Exchange Act of 1934.
The Amended Complaint does not quantify damages but seeks to
recover damages on behalf of investors who purchased or otherwise
acquired Blink's common stock between March 6, 2020 and August 19,
2020.
On April 20, 2021, Blink and the other defendants filed a motion to
dismiss the Amended Complaint, which has now been fully briefed and
is ready for review.
On April 7, 2022, the court held oral argument on the motion to
dismiss but did not issue a decision.
The Company wholly and completely disputes the allegations therein.
The Company has retained legal counsel in order to defend the
action vigorously.
Blink Charging Co. a leading owner, operator and supplier of
proprietary electric vehicle charging equipment and networked EV
charging services. The company serves both residential and
commercial EV charging settings, enabling EV drivers to easily
recharge at various location types. The company is based in Miami
Beach, Florida.
BOBCAT CENTRAL: Keller Files Suit in Cal. Super. Ct.
----------------------------------------------------
A class action lawsuit has been filed against Bobcat Central, Inc.
The case is styled as Dallas Keller, individually, and on behalf of
other members of the general public similarly situated v. Bobcat
Central, Inc., Case No. STK-CV-UOE-2023-0001968 (Cal. Super. Ct.,
San Joaquin Cty., Feb. 28, 2023).
The case type is stated as "Unlimited Civil Other Employment."
Bobcat Central -- https://www.bobcatcentral.com/ -- is a
construction machine dealer in California.[BN]
The Plaintiff is represented by:
Douglas Han, Esq.
JUSTICE LAW CORPORATION
751 N Fair Oaks Ave, Ste. 101
Pasadena, CA 91103
Phone: (818) 230-7502
Fax: (818) 230-7259
Email: dhan@justicelawcorp.com
BP EXPLORATION: Bid to Exclude Cook Testimony in Street Suit OK'd
-----------------------------------------------------------------
In the case, SHADRONICA STREET v. BP EXPLORATION & PRODUCTION,
INC., ET AL., SECTION: D (1), Civil Action No. 17-4260 (E.D. La.),
Judge Wendy B. Vitter of the U.S. District Court for the Eastern
District of Louisiana grants:
(1) the Daubert Motion to Exclude the Causation Testimony of
Plaintiff's Expert, Dr. Jerald Cook; and
(2) the Motion for Summary Judgment, both filed by Defendants
BP Exploration & Production Inc., BP America Production
Co., and BP p.l.c., joined by Halliburton Energy Services,
Inc., Transocean Holdings, LLC, Transocean Deepwater,
Inc., and Transocean Offshore Deepwater Drilling, Inc.
The case arises from the Deepwater Horizon oil spill in the Gulf of
Mexico in 2010 and the subsequent cleanup efforts of the Gulf
Coast. On Jan. 11, 2013, U.S. District Judge Carl J. Barbier, who
presided over the multidistrict litigation arising out of the
Deepwater Horizon incident, approved the Deepwater Horizon Medical
Benefits Class Action Settlement Agreement (the "MSA"). However,
certain individuals, referred to as "B3" plaintiffs, either opted
out of or were excluded from the MSA. Plaintiff Street opted out of
the MSA and, accordingly, is a B3 plaintiff.
The Plaintiff filed the individual action against the Defendants on
April 28, 2017 to recover for injuries allegedly sustained as a
result of the oil spill. For over 12 months in 2010 and 2011, the
Plaintiff worked as a beach cleanup worker, tasked with cleaning up
oil and oil-covered debris from the beaches and coastal areas near
Cat Island and Long Beach, Mississippi.
The Plaintiff alleges that the Defendants' negligence and
recklessness in both causing the Gulf oil spill and subsequently
failing to properly design and implement a clean-up response caused
her to suffer myriad injuries including nasal congestion, decreased
sense of smell, throat irritation, vomiting, nausea, abdominal
cramps and pain, gastroenteritis, GERD, rashes, skin itching,
scaling, bronchitis, URI, shortness of breath, cough, wheezing,
headaches, dizziness, weight loss, and depression. Specifically,
she seeks to recover economic damages, personal injury damages --
including damages for past and future medical expenses and for pain
and suffering -- punitive damages, and attorneys' fees, costs, and
expenses.
To help support her claims that exposure to the chemicals present
in the oil spilled by the Defendants caused her particular health
symptoms, the Plaintiff offers the report and testimony of Dr.
Cook. Dr. Cook is a retired Navy physician with expertise
specifically as an occupational and environmental physician. His
Report is tailored directly to the Plaintiff's claims and addresses
both general causation and specific causation. The Report
specifically analyzes the Plaintiff's alleged health complaint of
rhinosinusitis from occupational exposures that occurred during her
work in oil spill cleanup. It does not contain an analysis of any
of the Plaintiff's other alleged injuries.
The Defendants filed the instant Motion in limine and Motion for
Summary Judgment on March 21, 2022. In their Motion in limine, the
Defendants contend that Dr. Cook's Report should be excluded from
testifying due to, inter alia, Dr. Cook's failure to identify
scientific literature demonstrating an association between crude
oil exposure and the Plaintiff's symptoms and his failure to
identify the harmful level of exposure capable of causing her
particular injuries for each chemical that she alleges to have been
exposed to.
The Defendants also object to Dr. Cook's specific causation
opinion, arguing that he fails to provide the level of the
Plaintiff's exposure to the weather oil. Because Dr. Cook should be
excluded from testifying, they argue, the Court should grant their
Motion for Summary Judgment as the Plaintiff is unable to establish
general causation through expert testimony, a necessary requirement
under controlling Circuit precedent.
The Plaintiff opposes both Motions, arguing that Dr. Cook's Report
satisfies the Daubert standards for reliability and relevancy and,
therefore, that summary judgment is inappropriate.
The Plaintiff filed a supplemental memorandum to her response to
the Defendants' Motion in limine in which she provided an affidavit
of Dr. Linda Birnbaum, the Director of the National Institute of
Environmental Health and Sciences from 2009 to 2019. Dr. Birnbaum
states that the proposition that it is possible to establish a BP
Oil Spill responder's quantitative exposure to a given chemical at
a given level based on either the data that was collected during
the BP Oil Spill response or on studies of other oil spills and
non-oil spill related studies of exposure to crude oil is not
plausible. Dr. Birnbaum also opines that the Gulf Study exposure
assessment and epidemiology are the current, best, and state of the
art scientific literature on the exposure and health effect
outcomes of BP Oil Spill responders.
The Plaintiff relies upon Dr. Birnbaum to support her argument that
Dr. Cook's failure to meet the requirements for general causation
opinions as called for by the Defendants as well as every section
of the Court should be excused because Dr. Cook has nevertheless
utilized the best available methodologies to support the
Plaintiff's causation claim given the Defendants' conduct.
Defendants filed a response to this supplemental memorandum,
arguing that Dr. Birnbaum's affidavit is irrelevant because the
flaws in Dr. Cook's Report do not depend on whether biological
monitoring and testing was done on the cleanup workers.
Judge Vitter explains that the burden of proof is on the B3
plaintiffs to prove that the legal cause of the claimed injury or
illness is exposure to oil or other chemicals used during the
response. To prove causation, the B3 plaintiffs are required to
provide reliable expert testimony. A plaintiff in such a case
cannot expect lay fact-finders to understand medical causation;
expert testimony is thus required to establish causation. To
establish general causation, a causation expert must identify "the
harmful level of exposure to a chemical" at which physical symptoms
manifest.
The Court has previously considered Dr. Cook's
non-plaintiff-specific general causation reports in other B3 cases,
finding that for each version of the report, Dr. Cook failed to
satisfy the Daubert standards for reliability and relevancy. It
has, therefore, excluded Dr. Cook's report in every B3 case before
it. However, the Court has not yet addressed the first version of
Dr. Cook's Report, offered by the Plaintiff. This version of Dr.
Cook's Report contains both a general causation opinion as well as
a specific causation opinion tailored directly to the Plaintiff.
Judge Vitter finds that the Nov. 17, 2021 Report offered by the
Plaintiff fails to meet the Daubert standards for expert testimony
and must be excluded. As with his subsequent reports, Dr. Cook
fails to adequately establish the level of exposure to a particular
substance required to cause the types of injuries specifically
complained of by the Plaintiff. Moreover, Dr. Birnbaum's affidavit
neither cures nor explains the deficiencies of Dr. Cook's report
For the same reasons set forth in greater detail in prior Orders
considering Dr. Cook's reports, Judge Vitter determines that the
Plaintiff has failed in her burden of establishing the reliability
and relevance of her expert's report and finds it appropriate to
grant the Defendants' Motion in limine to exclude Dr. Cook's
Report. The Plaintiff accordingly lacks expert testimony on general
causation. Without expert testimony, which is required to prove
general causation, the Plaintiff has failed to demonstrate a
genuine dispute of material fact regarding her claims that her
injuries were caused by exposure to oil. Thus, the Defendants'
Motion for Summary Judgment must be granted as the Defendants are
entitled to judgment as a matter of law due to the Plaintiff's
failure to establish general causation.
Accordingly, Judge Vitter grants the Defendants' Daubert Motion to
Exclude and Motion for Summary Judgment. She dismisses the
Plaintiff's claims against the Defendants with prejudice.
A full-text copy of the Court's March 3, 2023 Order & Reasons is
available at https://tinyurl.com/3fe827as from Leagle.com.
C.A.P. CONTRACTING: Frazier Seeks to Recover Unpaid OT Wages
------------------------------------------------------------
DEWAYNE FRAZIER, individually and on behalf of others similarly
situated v. C.A.P. CONTRACTING, INC., a Florida For Profit
Corporation, Case No. 3:23-cv-00287 (M.D. Fla., Mar. 14, 2023)
seeks to recover unpaid overtime compensation, liquidated damages,
and all other applicable relief under the Fair Labor Standards
Act.
During their employment with the Defendant, the Plaintiff and all
putative Class Members worked overtime hours but were not paid time
and one-half compensation for same. The Defendant has allegedly
failed provide accurate overtime compensation for numerous pay
periods. Specifically, Defendant had a policy and practice of
compensating the Plaintiff, and those similarly situated employees,
their regular rate of pay, in cash, for hours worked on the
weekend. Hours worked on the weekend were allegedly not included or
calculated in the Plaintiff's, and those similarly situated
employees, total hours for overtime calculations.
Plaintiff Frazier works as a general laborer/concrete finisher for
the Defendant.
CAP Contracting specializes in new construction, renovations,
concrete work, residential & commercial building.[BN]
The Plaintiff is represented by:
Matthew R. Gunter, Esq.
MORGAN & MORGAN, P.A.
20 N. Orange Ave., 15th Floor
Orlando, FL 32802-4979
Telephone: (407) 236-0946
Facsimile: (407) 867-4791
E-mail: mgunter@forthepeople.com
CENG EYEWEAR: Vachnine Files ADA Suit in S.D. New York
------------------------------------------------------
A class action lawsuit has been filed against Ceng Eyewear USA Inc.
The case is styled as Ness-Lee Vachnine, on behalf of himself and
all others similarly situated v. Ceng Eyewear USA Inc. doing
business as: Cutler and Gross, Case No. 1:23-cv-02109 (S.D.N.Y.,
March 13, 2023).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Ceng Eyewear USA Inc. doing business as Cutler and Gross --
http://www.cutlerandgross.com/-- is a British luxury eyewear
brand, founded by Graham Cutler and Tony Gross in 1969.[BN]
The Plaintiff is represented by:
Gabriel Levy, Esq.
GABRIEL A. LEVY, P.C.
1129 Northern Blvd, Suite 404
Manhasset, NY 11030
Phone: (516) 287-3458
Email: glevy@glpcfirm.com
CLOOPEN GROUP: Judge Allows Securities Class Action to Proceed
--------------------------------------------------------------
Martina Barash at news.bloomberglaw.com reports that US investors
who purchased shares in Beijing-based cloud service provider
Cloopen Group Holding Ltd. have a green light to proceed with
securities fraud claims on behalf of a proposed class.
The investors adequately alleged Cloopen made misleading
statements, had the necessary level of intent, and failed to
fulfill affirmative obligations, Judge John G. Koeltl said for the
US District Court for the Southern District of New York. [GN]
CORIZON HEALTH: Court Stays All Proceedings in Morelli Class Suit
-----------------------------------------------------------------
In the case, BRUCE MORRELLI, et al., Plaintiffs v. CORIZON HEALTH,
INC., et al., Defendants, Case No. 1:18-cv-01395-JLT-SAB (E.D.
Cal.), Magistrate Judge Stanley A. Boone of the U.S. District Court
for the Eastern District of California stays all proceedings in
this matter against Corizon Health.
Morelli filed the putative class action on Oct. 9, 2018. On Feb.
15, 2023, the Defendant filed a notice of bankruptcy proceedings
indicating that on Feb. 13, 2023, the Defendant filed a voluntary
petition pursuant to 11 U.S.C. Sections 101-1532 in the U.S.
Bankruptcy Court for the Southern District of Texas, Houston
Division, under Case No. 23-90086 (CML). A motion to amend and
certify class are currently set for hearing on March 22, 2023.
Pursuant to 11 U.S.C. Sections 362(a), all actions against a
defendant who has filed a bankruptcy petition are automatically
stayed once the petition is filed. Accordingly, all proceedings in
the matter against Defendant Corizon Health, Inc., have been stayed
pursuant to 11 U.S.C. Section 362(a).
The hearing on the Plaintiffs' motion to amend and motion for class
certification, set for March 22, 2023, is vacated and the motions
will be held in abeyance until the stay is lifted or further order
of the Court.
A full-text copy of the Court's March 1, 2023 Order is available at
https://tinyurl.com/5bv53keu from Leagle.com.
CREDIT MANAGEMENT: Discovery & Case Deadlines Stayed in Glover
--------------------------------------------------------------
In the class action lawsuit captioned as Glover v. Credit
Management, L.P., et al., Case No. 3:22-cv-00568 (W.D. Ky., Filed
Oct 24, 2022), the Hon. Judge Rebecca Grady Jennings entered an
order staying all discovery and remaining case deadlines are stayed
pending ruling on class-certification in a ruling on a motion for
class-certification in Jordan Coffey v. Equifax Information
Services, LLC, et al., Case No. 5:22-cv-00271 (E.D. Ky).
The suit alleges violation of the Fair Credit Reporting Act
involving consumer credit.
Credit Management is a debt collector.
A copy of the Court's order dated March 6, 2023 is available from
PacerMonitor.com at https://bit.ly/3JFWgAK at no extra charge.[CC]
DELACAN LLC: Nevada Court Dismisses De Leon Suit With Prejudice
---------------------------------------------------------------
Judge Cristina D. Silva of the U.S. District Court for the District
of Nevada dismisses the case, EDWARD DE LEON, Individually and On
Behalf of All Others Similarly Situated, Plaintiff v. DELACAN, LLC,
Defendant, Case No. 2:21-cv-01445-CDS-EJY (D. Nev.), with
prejudice.
Plaintiff Edward De Leon and Defendant Delacan, LLC, file the
Stipulation of Dismissal with Prejudice Pursuant to Rule 41.
On Aug. 3, 2021, the Plaintiff filed his Original Complaint against
the Defendant.
On Dec. 14, 2022, the Parties filed a notice of settlement with the
Court. The case has not been certified as a class action or
collective action and only affects the rights of the Parties.
Afterwards the Parties documented the terms of their settlement in
a longform settlement agreement, which they have signed. The
settlement pertains to them only.
Therefore, the Parties stipulate to a dismissal of this case with
prejudice pursuant to Rule 41 of the Federal Rules of Civil
Procedure. As part of the stipulation of dismissal, they are to
continue to administer the settlement pursuant to its terms. Each
side will bear their own costs of court except as stated in the
settlement agreement. Finally, the Parties agree that the Court
will retain jurisdiction over the Settlement Agreement and its
enforcement.
The Clerk of Court is directed to close the case.
A full-text copy of the Court's March 1, 2023 Order is available at
https://tinyurl.com/4fwzz8vk from Leagle.com.
Esther C. Rodriguez, Esq. -- esther@rodriguezlaw.com -- Rodriguez
Law Offices, P.C., Las Vegas, Nevada, Local Counsel for the
Plaintiff.
Don J. Foty -- dfoty@hftrialfirm.com -- (Admitted Pro Hac Vice)
HODGES FOTY, LLP, Houston, Texas, Attorneys for the Plaintiff.
Allison L Kheel -- akheel@fisherphillips.com -- Fisher & Phillips
LLP, Las Vegas, NV.
Jenna Wadulak -- jwadulak@huckbouma.com -- (Admitted Pro Hac Vice)
Brian Lafratta -- blafratta@huckbouma.com -- (Admitted Pro Hac
Vice) HUCK BOUMA PC, Wheaton, Illinois, Attorneys for Defendant
Delacan, LLC.
DRAFTKINGS INC: Faces Class Action Over Non-Fungible Tokens
-----------------------------------------------------------
DraftKings (NASDAQ: DKNG) was slapped with a federal class action
lawsuit related to tumbling values of the non-fungible tokens
(NFTs) offered on the company's DraftKings Marketplace.
An NFT is a unit of data stored on the blockchain. NFTs can be
applied to various digitized items, such as audio and video files
and pictures. The suit filed earlier this month in US District
Court in Boston was brought by Illinois resident Justin Dufoe.
Heclaims he lost approximately $14,000 on NFTs he bought on
DraftKings Marketplace. The defendant is headquartered in Boston.
In the complaint, Dufoe asserts that because marketplace users were
"entirely dependent on the managerial efforts of DraftKings,"
clients were made vulnerable by the company's actions.
The suit also contends that during the class period, DraftKings
failed to register its NFTs as securities with the Securities and
Exchange Commission (SEC). If accurate, the sportsbook operator
could be subject to increased regulatory scrutiny because the SEC
is mulling classifying NFTs as securities.
DraftKings NFT History
DraftKings launched its NFT business in mid-2021 at a time when
interest in the asset class and prices were soaring.
The gaming company partnered with Autograph, an NFT collecting
platform cofounded by legendary quarterback and seven-time Super
Bowl champion Tom Brady. In 2021, an NFT produced by the artist
known as Beeple sold for more than $69.3 million at a Christie's
auction. That year, DraftKings board member Shalom Meckenzie spent
$11.8 million on the NFT known as "CryptoPunk #7523" at a Sotheby's
auction.
That enthusiasm quickly evaporated, as NFT prices tumbled last
year. In the case of Dufoe, he purchased $72,261 worth of NFTs on
DraftKings Marketplace, and it is estimated those units of data are
now worth around $58,000.
Underscoring recent weakness in the NFT space, Fanatics said in
January it's selling its 60% stake in digital collectibles platform
Candy Digital to Galaxy Digital for an undisclosed price.
What Could Come of DraftKings NFT Suit
Forecasting outcomes in the class action suit is difficult. On one
hand, with DraftKings Marketplace serving as the only venue in
which clients can buy and sell the company's NFTs, a jury might
decide that there is a burden on the gaming company to properly
execute the NFT platform and do so without making clients
susceptible to financial losses.
Just as investors of traditional securities such as common stock,
preferred stock, bonds and warrants that have different features
and profit opportunities are still equally dependent on the
managerial efforts of the company, here the investors of
DraftKings' NFTs nominally associated with different players were
entirely dependent on DraftKings' managerial efforts," according to
the legal complaint.
On the other hand, class action suits stemming from evaporated
securities values often fail, with courts ruling that investing
implies risk and issuers of investment products are not always
liable for market conditions that lead to price deterioration.[GN]
ENVOY HOSPICE: Hallidy Class Suit Seeks Unpaid, OT Wages Under FLSA
-------------------------------------------------------------------
ANNE HALLIDY and ANDREA POSEY, on behalf of themselves and a class
of those similarly situated v. ENVOY HOSPICE, LLC D/B/A ALTUS
HOSPICE, Case No. 1:23-cv-00281 (W.D. Tex., Mar. 14, 2023) seeks to
recover unpaid wages and overtime wages owed to certain non-exempt
employees as required by the Fair Labor Standards Act.
During one or more weeks of Plaintiffs' employment with the
Defendant wherein the Plaintiffs worked overtime hours, the
Defendant failed to pay Plaintiffs one and one-half times their
regular rates of pay for each overtime hour worked. During one or
more weeks of the Plaintiffs' employment with the Defendant wherein
the Plaintiffs worked "off the clock" but did not work overtime
hours, the Defendant failed to pay Plaintiffs at least minimum wage
for each hour worked by Plaintiffs, the suit alleges.
Ms. Hallidy was hired by the Defendant on June 1, 2022, as an RN
Case Manager, and remained employed until October 24, 2022. Ms.
Andrea was hired by the Defendant on April 18, 2022, as an RN Case
Manager, and remained employed until September 9, 2022. As an RN
Case Manager, Ms. Hallidy and Ms. Posey were paid on an hourly
basis, says the suit.
Envoy is a hospice care provider serving Fort Worth, Texas and the
surrounding area.[BN]
The Plaintiffs are represented by:
Kell A. Simon, Esq.
THE LAW OFFICES OF KELL A. SIMON
501 North IH-35, Suite 111
Austin, TX 78702
Telephone: (512) 898-9662
Facsimile: (512) 368-9144
FTX TRADING: Suit Seeks $1-Bil. From Influencers Who Endorsed Firm
------------------------------------------------------------------
Leo Jakobson at yahoo.com reports that a class action lawsuit is
seeking $1 billion from nine top crypto social media influencers
who promoted the now-bankrupt FTX exchange to their millions of
followers.
The lawsuit was filed in a federal court in Miami, arguing that the
defendants promoted both FTX and its yield-bearing FTX Earn
accounts without disclosing the nature of their deals with the
exchange and the amount of compensation they received.
The latter is the cause of the lawsuit, as U.S. securities law
requires that anyone promoting a security disclose not only that
they are a paid endorser, but also how much they earned.
The SEC has argued that yield-bearing "Earn" accounts like FTXs are
securities offerings that must meet strict and extensive disclosure
requirements.
Claiming that the lawsuit "may be one of the only avenues for any
of the victims to recover any of their damages," it argued that
"influencers played a major role in the FTX disaster." It added:
The attorneys suing the FTX endorsers, David Boies and Adam
Moskowitz, have also filed a class-action lawsuit against celebrity
FTX endorsers including Tom Brady, Gisele Bundchen, Steph Curry and
Larry David. As has the Texas State Securities Board.
A number of celebrities have been caught out by the earnings
disclosure requirement, most notably Kim Kardashian and ex-NBA star
Paul Pierce, who earlier this year settled lawsuits by the
Securities and Exchange Commission (SEC) over their endorsement of
the Ethereum Max token. They paid $1.26 million and $1.4 million,
respectively.
They and boxing great Floyd Mayweather are also targets of a class
action lawsuit over the EMAX endorsements.
The lawsuit argues that "crypto firms like FTX turned to celebrity
and social media endorsers to position itself as the 'safe' option
among cryptocurrency exchanges… [despite being] a house of cards
that misappropriated customer assets."
It points to "mea culpas and apology videos" made by Kevin
Paffrath, Graham Stephan, and Tom Nash, who "scrubbed their YouTube
channels of all video clips endorsing FTX and praising Sam
Bankman-Fried."
Stephan said he "can't even begin to share how devastated and sorry
I am . . . I made the mistake of assuming that Sam Bankman-Fried's
image had anything to do with his credibility."
The lawsuit claimed Paffrath earned $2,500 anytime he mentioned
FTX. In a video, he called his FTX sponsorship a "disgrace" and a
"scar." He added:
Other influencers named in the suit include Andrei Jikh, Jaspreet
Singh, Brian Jung, Jeremy Lefebvr and Ben Armstrong, as well as
Erika Kullberg and her Creators Agency. [GN]
IMMUNOMEDICS INC: Settlement Proof of Claim Deadline Set June 8
---------------------------------------------------------------
SUMMARY NOTICE OF PROPOSED SETTLEMENT OF CLASS ACTION
TO: ALL PERSONS WHO PURCHASED OR OTHERWISE ACQUIRED IMMUNOMEDICS,
INC. ("IMMUNOMEDICS" OR THE "COMPANY") COMMON STOCK DURING THE
PERIOD BETWEEN FEBRUARY 9, 2018 AND JANUARY 17, 2019, INCLUSIVE,
AND WERE DAMAGED THEREBY ("CLASS" OR "CLASS MEMBERS")
THIS NOTICE WAS AUTHORIZED BY THE COURT. IT IS NOT A LAWYER
SOLICITATION. PLEASE READ THIS NOTICE CAREFULLY AND IN ITS
ENTIRETY.
YOU ARE HEREBY NOTIFIED that a hearing will be held on June 15,
2023, at 10:00 a.m., before the Magistrate Judge Edward S. Kiel at
the United States District Court, District of New Jersey, in
Courtroom 8 of the Frank R. Lautenberg U.S. Post Office and
Courthouse, 2 Federal Square, Newark, New Jersey 07102 to determine
whether: (1) the proposed settlement (the "Settlement") of the
above-captioned action as set forth in the Stipulation of
Settlement ("Stipulation"), which can be viewed and/or obtained at
www.ImmunomedicsSecuritiesSettlement.com, for $40,000,000 in cash
should be approved by the Court as fair, reasonable, and adequate;
(2) the Judgment as provided under the Stipulation should be
entered dismissing the Litigation with prejudice; (3) to award Lead
Counsel attorneys' fees and expenses out of the Settlement Fund (as
defined in the Notice of Pendency and Proposed Settlement of Class
Action ("Notice"), which is discussed below) and to award Lead
Plaintiffs reimbursement of their time and expenses pursuant to 15
U.S.C. Sec78u-4(a)(4) in connection with their representation of
the Class, and, if so, in what amounts; and (4) the Plan of
Allocation should be approved by the Court as fair, reasonable, and
adequate.
The Court may decide to conduct the Settlement Hearing by video or
telephonic conference, or otherwise allow Class Members to appear
remotely at the hearing, without further written notice to the
Class. In order to determine whether the date and time of the
Settlement Hearing have changed, or whether Class Members must or
may participate by phone or video, it is important that you monitor
the Court's docket and the Settlement website,
www.ImmunomedicsSecuritiesSettlement.com, before making any plans
to attend the Settlement Hearing. Updates regarding the Settlement
Hearing, including any changes to the date or time of the hearing
or updates regarding in-person or remote appearances at the
hearing, will be posted to the Settlement website,
www.ImmunomedicsSecuritiesSettlement.com. Also, if the Court
requires or allows Class Members to participate in the Settlement
Hearing by remote means, the information for accessing the hearing
will be posted to the Settlement website.
IF YOU PURCHASED OR OTHERWISE ACQUIRED IMMUNOMEDICS COMMON STOCK
BETWEEN FEBRUARY 9, 2018 AND JANUARY 17, 2019, INCLUSIVE, YOUR
RIGHTS MAY BE AFFECTED BY THE SETTLEMENT OF THIS LITIGATION.
To share in the distribution of the Settlement Fund, you must
establish your rights by submitting a Proof of Claim and Release
Form ("Proof of Claim") by mail (postmarked no later than June 8,
2023) or electronically (no later than June 8, 2023). Your failure
to submit your Proof of Claim by June 8, 2023, will subject your
claim to rejection and preclude your receiving any of the recovery
in connection with the Settlement of this Litigation. If you
purchased or otherwise acquired Immunomedics common stock between
February 9, 2018 and January 17, 2019, inclusive, and do not
request exclusion from the Class, you will be bound by the
Settlement and any judgment and release entered in the Litigation,
including, but not limited to, the Judgment, whether or not you
submit a Proof of Claim.
If you have not received a copy of the Notice, which more
completely describes the Settlement and your rights thereunder
(including your right to object to the Settlement), and a Proof of
Claim, you may obtain these documents, as well as a copy of the
Stipulation (which, among other things, contains definitions for
the defined terms used in this Summary Notice) and other Settlement
documents, online at www.ImmunomedicsSecuritiesSettlement.com, or
by writing to: [GN]
INNIO WAUKESHA: Bid to Impose Sanctions in Charles Suit Granted
---------------------------------------------------------------
In the case, CHARLES EQUIPMENT ENERGY SYSTEMS, LLC, Plaintiff v.
INNIO WAUKESHA GAS ENGINES, INC. And DRESSER, INC., a wholly owned
subsidiary of General Electric Company d/b/a Waukesha, Defendant,
Case No. 22 Civ. 2716 (CM) (S.D.N.Y.), Judge Colleen McMahon of the
U.S. District Court for the Southern District of New York grants
the Defendants' motion for the imposition of sanctions against the
Plaintiff for filing a frivolous lawsuit.
On April 1, 2022, the Plaintiff filed the lawsuit, alleging three
causes of action against the Defendants: (1) breach of contract,
(2) breach of the implied covenant of good faith and fair dealing,
and (3) fraud. The claims arose out of the Defendants' provision of
an engine part to the Plaintiff, a part that allegedly caused the
engine owned by the Plaintiff to fail. The Complaint in the action
affirmatively alleges that the Plaintiff knew the part was
defective on Dec. 12, 2016. The Plaintiff submitted a claim under
the warranty that covered the part in December 2017; that claim was
denied on Jan. 11, 2018, on the ground that the claim had been
submitted 36 weeks late and did not include all relevant invoices.
On May 6, 2022, the Defendants sent the Plaintiff's counsel a
so-called "safe harbor letter" pursuant to Fed. R. Civ. P. 11(b).
The letter described the Plaintiff's claims as baseless and without
any arguable basis in law or fact and advised that the Defendants
intended to move for sanctions unless the lawsuit was withdrawn
within the 21-day period provided by the Rule. The letter,
explained in copious detail the reasons why the Defendants alleged
that each of the claims in the complaint was frivolous and should
be withdrawn. It included citations to legal authority in support
of the arguments made. Attached to the Safe Harbor Letter was a
Notice of Motion for Sanctions.
The Plaintiff neither responded to the Safe Harbor Letter nor
withdrew the lawsuit. Therefore, on June 15, 2022, the Defendants
filed the Motion to Dismiss the Complaint, to which was attached a
brief that repeated all of the legal arguments, citing all of the
authority, that appeared in the Safe Harbor Letter. The Court
granted the motion and directed that the Complaint be dismissed
with prejudice on Oct. 24, 2022. It agreed with every argument
propounded by the Defendants: the two contract-based claims were
time barred and the fraud claim (as well as the duplicative claim
for breach of the covenant of good faith and fair dealing) failed
to state a claim. The Court rejected as utterly lacking in merit
Plaintiff s contention that its claims had been equitably tolled.
Following through with their intention, the Defendants filed their
Notice of Motion for Sanctions on Nov. 11, 2022. They allege the
Plaintiff's claims were not merely unsuccessful, but constitute
frivolous, unfounded and vexatious pleadings. The Plaintiff argues
it advanced good faith, colorable arguments under existing
authority, and their interpretation of the factual record.
Judge McMahon states that the Court does not impose sanctions
lightly. But in the present case, she holds that the claims
asserted were so obviously lacking in factual or legal support that
the motion for sanctions should be granted. Sanctions are awarded
in the amount of costs and attorneys' fees reasonably incurred to
make the successful motion to dismiss. She holds that putting the
Defendants to the trouble and expense of filing a motion to dismiss
was sanctionable conduct.
For these reasons, Judge McMahon gives the Defendants 10 business
days to provide detailed information about the amount of sanctions
it is seeking, together with a proposed order awarding sanctions.
The Plaintiff then has 10 business days to explain why any aspect
of that requested award would be unreasonable.
Judge McMahon's Decision and Order constitutes the decision and
order of the Court. It is a written opinion.
The Clerk of Court is respectfully directed to terminate the motion
at Docket No. 31. The Court will close the case after the sanctions
award is reduced to a judgment.
A full-text copy of the Court's March 3, 2023 Decision & Order is
available at https://tinyurl.com/zhc3cyex from Leagle.com.
J.B. HUNT: Amount in Controversy in Townsend Suit Found Sufficient
------------------------------------------------------------------
In the case, DAVID TOWNSEND, individually and on behalf of all
others similarly situated, Plaintiff-Appellee v. J.B. HUNT
TRANSPORT SERVICES INC., an Arkansas corporation; J.B. HUNT
TRANSPORT INC., Defendants-Appellants, Case No. 23-55044 (9th
Cir.), the U.S. Court of Appeals for the Ninth Circuit reverses the
district court's order finding the amount in controversy
insufficient under the Class Action Fairness Act.
The appeal considers whether the amount in controversy in a
putative class action removed from state court is in excess of $5
million and therefore supports federal jurisdiction under CAFA. The
district court found the amount in controversy insufficient under
CAFA and remanded the action to state court.
The operative state-court complaint alleged that Defendants J.B.
Hunt Transport Services, Inc. and J.B. Hunt Transport, Inc.
(collectively "Hunt") violated California law by regularly
requiring drivers to work without being paid minimum wage. It
included claims based on Hunt's alleged failure to compensate the
Plaintiff and the Class Members, each and every day, at least
minimum wage for their lawfully required rest breaks, and to
provide accurate wage statements. The complaint alleged that the
class members were entitled up to a maximum of $4,000 each as a
result of Hunt's failure to provide complete and accurate wage
statements alone.
The Ninth Circuit states that the amount in controversy encompasses
all relief a court may grant if the plaintiff is victorious and
represents the maximum recovery the plaintiff could reasonably
recover. The amount in controversy is calculated based on the
well-pleaded allegations in the complaint and those allegations
make plain that the amount in controversy in the present case
exceeds $5 million. Indeed, the Plaintiff's claim that each driver
is entitled to "up to $4,000" for Hunt's alleged failure to provide
statutorily compliant wage statements is alone sufficient to meet
the amount-in-controversy threshold, given that the number of
drivers in the putative class exceeds 2,100.
The Ninth Circuit accordingly reverses and remands with
instructions for the district court to exercise CAFA jurisdiction.
A full-text copy of the Court's March 1, 2023 Memorandum is
available at https://tinyurl.com/yzw9xw7h from Leagle.com.
MAKEUPBYMARIO INC: Faces Hackler Suit For Biometric Data Collection
-------------------------------------------------------------------
NIKITA HACKLER, an Illinois resident, individually and on behalf of
all others similarly situated v. MAKEUPBYMARIO, INC. a Delaware
corporation, Case No. 1:23-cv-01586 (N.D. Ill., Mar. 14, 2023) sues
the Defendant for collection without prior consent of the face
geometry data of the Plaintiff the and a potential class of other
visitors to its website, www.makeupbymario.com MBM's, who used the
Virtual Try-On feature, pursuant to the Illinois Biometric
Information Privacy act.
According to the complaint, the Defendant does not provide users
with a schedule setting out the length of time during which their
biometric information or biometric identifiers will be collected,
stored, used, or will be destroyed. Further, the Plaintiff seeks an
order requiring Defendant to disclose whether the Defendant has
retained the Plaintiff's and the Class members' biometric
identifiers, how the Defendant uses the Plaintiff's and the Class
members' biometric identifiers, and the identities of any third
parties with which Defendant shared those biometric identifiers,
says the suit.
On 2 to 3 occasions from October 2022 through January 2023, from
her home in Rockford, Illinois, Ms. Hackler used MBM's Virtual
Try-On feature on www.makeupbymario.com on her iPhone 13 Pro via
the Safari browser, to see how various lipstick and eyeliner
products would look applied to her face. She never bought a product
from MBM, the Plaintiff contends.
MBM sells makeup and cosmetics products at brick-and-mortar retail
shops throughout the United States and Illinois and through its
website www.makeupbymario.com.[BN]
The Plaintiff is represented by:
Jeff Ostrow, Esq.
Steven Sukert, Esq.
KOPELOWITZ OSTROW FERGUSON
WEISELBERG GILBERT
One West Las Olas Blvd., Suite 500
Fort Lauderdale, FL 33301
Telephone: (954) 525-4100
E-mail: ostrow@kolawyers.com
sukert@kolawyers.com
- and-
Andrew J. Shamis, Esq.
SHAMIS & GENTILE, P.A.
14 NE 1st Avenue, Suite 400
Miami, FL 33132
Telephone: (305) 479-2299
E-mail: ashamis@shamisgentile.com
MANITOBA: Proposed Settlement Reached in Breach Class Action
------------------------------------------------------------
A proposed settlement has been reached in a class action lawsuit
against the Government of Manitoba ("Manitoba") on behalf of former
residents of the Manitoba Developmental Centre ("MDC") in Portage
la Prairie.
David Weremy, a former resident of MDC, commenced this lawsuit on
his own behalf and on behalf of those who lived at MDC between 1951
to 2020. He alleged that Manitoba breached various duties in
regards to the operation and management of MDC, resulting in
alleged physical and sexual assaults. Manitoba denies these claims.
No admission of liability is made, and none of the allegations have
been proven in Court.
The action was certified as a class action on May 29, 2020. The
"Class" includes everyone who resided at MDC between July 1, 1951
and May 29, 2020, and who was alive as of October 31, 2016.
If approved by the Court, the settlement will provide a $17 million
fund to provide financial compensation to Class Members who allege
they suffered certain harm. The settlement fund will also fund
specific reconciliation initiatives. The reconciliation initiatives
include, but are not limited to, the creation of an endowment fund
for educational programming and inclusion initiatives for
individuals with intellectual and developmental disabilities in
Manitoba, in addition to training for people and agencies providing
support for individuals with intellectual or developmental
disabilities. Further reconciliation initiatives include agreed
upon funds for audiovisual productions documenting class members'
stories.
A settlement approval hearing will be held at the Court House
located at 408 York Avenue, in Winnipeg. That hearing is currently
scheduled for May 5, 2023. At the hearing, the Court will consider
whether the settlement is fair, reasonable, and in the best
interests of the Class, and whether to approve the Settlement
Agreement. Notice of the settlement approval hearing will be
provided to Class Members.
If the settlement is approved by the Court, Class Members will be
able to submit a claim to be assessed by an independent
Administrator in a paper-based claims process. Class Members will
be able to claim compensation without ever having to go to Court.
More information about the settlement is available on Class
Counsel's website:
https://kmlaw.ca/cases/manitoba-development-centre-class-action/,
or by contacting them at 1-800-286-2266, or by email at
mdcclassaction@kmlaw.ca. [GN]
MERCY HEALTH: Court Approves Proposed Notice Packet in Peck Suit
----------------------------------------------------------------
In the case, DANIELLE PECK, individually and on behalf of a class
of others similarly situated, Plaintiff v. MERCY HEALTH, et al.,
Defendants, Case No. 4:21-CV-834 RLW (E.D. Mo.), Judge Ronnie L.
White of the U.S. District Court for the Eastern District of
Missouri, Eastern Division:
a. approves the parties' proposed Notice of Collective Action,
Consent-to-Sue Form, email notice, and email reminder; and
b. authorizes the Plaintiff to send the proposed email
reminder 30 days after emailing the original Notice of
Collective Action.
The matter is before the Court on the parties' Joint Status Report
and Submission of Proposed Notice and Consent-to-Sue Forms. The
parties agree on the content of the Notice of Collective Action,
Consent-to-Sue Form, email notice, and email reminder ("Proposed
Notice Packet"). They also agree that the Plaintiff may distribute
the Notice and Consent-to-Sue Form via mail and email. They
disagree, however, as to whether the Plaintiff should be allowed to
notify putative collective members of this litigation via text
message.
Peck brings the action against Defendants Mercy Health, Mercy
Health Foundation, and MHM Support Services (collectively, "Mercy")
for alleged violations of the Fair Labor Standards Act, 29 U.S.C.
Sections 201-219 ("FLSA"), the Oklahoma Protection of Labor Act,
Okla. Stat. tit. 40, Sections 165.1 et seq. ("OPLA") and Oklahoma
common law for breach of implied contract. Mercy is a health system
with locations in Missouri, Oklahoma, Arkansas, and Kansas. The
Plaintiff, who has worked for Mercy in Oklahoma as a Unit
Registration Representative since July 2016, asserts that Mercy
willfully failed to compensate hourly-paid employees for work
performed during meal breaks.
On March 28, 2022, the Plaintiff filed a Motion for Conditional
Collective Certification. The Court granted the motion on Dec. 27,
2022, and certified the following FLSA collective class: All
hourly-paid employees of the Defendants who were or are subject to
the automatic meal break deduction policies at any time on or after
three (3) years prior to the date on which the Court approves this
collective certification.
The Court also ordered Mercy to provide the names, last known
addresses, dates and locations of employment, job titles, phone
numbers, and email addresses of all putative collective members.
Mercy has identified approximately 58,000 potential plaintiffs.
Judge White as reviewed the parties' Proposed Notice Packet and
finds it to be fair and accurate. He also finds that distribution
of the Notice of Collective Action and Consent-to-Sue Form via U.S.
Mail and email is reasonably calculated to reach putative class
members. All that remains for the Court to decide is whether
distribution via text message is warranted under the
circumstances.
The Plaintiff asserts that distribution of the Notification of
Collective Action and Consent-to-Sue Form by text message will
ensure that the information reaches more individuals. Mercy argues
that distribution by text message is "excessive and unwarranted."
Judge White agrees with Mercy. He does not permit the Plaintiff to
disseminate the Notification of Class Action and Consent-to-Sue
Form via text message.
The Plaintiff argues that even if this Court prohibits the
Plaintiff from sending text messages to all putative collective
members, the Court should nevertheless permit Plaintiff to send
text messages to any putative collective member whose mail and
email address is inaccurate, and any putative collective member
whose email address is unknown.
Judge White holds that there is nothing in the record to suggest
that any putative collective member's contact information will be
inaccurate. He is unpersuaded that notification via text message is
warranted under the circumstances.
Judge White concludes that the parties' Proposed Notice Packet is
fair and accurate. He further finds that distribution of the Notice
of Collective Action and Consent-to-Sue Form by mail and email is
reasonably calculated to reach putative class members. Distribution
of the same via text message is unwarranted.
Accordingly, Judge White (i) approves the parties' proposed Notice
of Collective Action, Consent-to-Sue Form, email notice, and email
reminder; (ii) authorizes the Plaintiff to disseminate the Notice
of Collective Action and the Consent-to-Sue Form via U.S. Mail and
email; and (iii) authorizes the Plaintiff to send the proposed
email reminder 30 days after emailing the original Notice of
Collective Action. The putative class members will have 60 days
from the date the Plaintiff first sends the Notice of Collective
Action to join the litigation.
A full-text copy of the Court's March 1, 2023 Memorandum & Order is
available at https://tinyurl.com/45p8aujx from Leagle.com.
NATIONAL HOCKEY: Faces Suit Over Illegal Sharing of Personal Data
-----------------------------------------------------------------
Marian Johns at Legal Newsline reports that NHL subscribers are
alleging their video watching and other personal data is being
shared without their consent.
Zachary Joiner, Daniel Kassi and Hanwook Nam, on behalf of
themselves and all others similarly situated filed a complaint
March 10 in the U.S. District Court for the Southern District of
New York March 10 against NHL Enterprises. Inc., and National
Hockey League alleging violation of the Video Privacy Act and other
claims.
According to the plaintiffs' complaint, they subscribed to the
NHL's and certain NHL team newsletters. They claim that they
watched pre-recorded video content related to NHL member teams
using a device signed into Facebook and that their personably
identifiable information (PII) and video watching data was shared
with Facebook.
The plaintiffs allege that the defendants offer users to subscribe
to member team newsletters in exchange for their contact
information but the defendants failed to disclose that their PII
would be captured by Facebook Pixel. They further allege the
defendants failed to obtain users' consent to allow their data to
be shared and that the defendants violate the Video Privacy Act
through the use of the pixel to track users through Facebook on NHL
team websites.
The plaintiffs also allege the defendants' data sharing information
is not presented to users in a transparent manner or made as part
of the sign-up process as well as does not include terms that
sufficiently warn users that their protected information will be
shared with a third party.
The plaintiffs and the class seek monetary relief, interest, trial
by jury and all other just relief. They are represented by Mark
Reich, Courtney Maccarone and Gary Ishimoto in New York City.
U.S. District Court for the Southern District of New York case
number 1:23-CV-02083 [GN]
NB NET: Fails to Pay Retail Clerks' Minimum, OT Wages Under FLSA
----------------------------------------------------------------
CHRISTOPHER ESCARRIA ARENAS, on behalf of themselves and other
similarly situated v. NB NET SOLUTION INC, NB NET SOLUTIONS 3 INC,
NB NET SOLUTIONS 4 INC, NB NET SOLUTIONS 5 INC, NB NET SOLUTIONS 6
INC, NB NET SOLUTIONS 8 INC, NB NET SOLUTIONS 9 INC, NB NET
SOLUTIONS 10 INC, NB NET SOLUTIONS 11 INC, NB NET SOLUTIONS 12 INC,
NB NET SOLUTIONS 13 INC, NB NET SOLUTIONS 15 INC, NB NET SOLUTIONS
16 INC, NB NET SOLUTIONS 18 INC, NB NET SOLUTIONS 19 INC, NB NET
SOLUTIONS 20 INC, NB NET SOLUTIONS 21 INC, NB NET SOLUTIONS 24 INC,
NB NET SOLUTIONS 25 INC, NB NET SOLUTIONS 28 INC, NB NET SOLUTIONS
29 INC, NB NET SOLUTIONS 33 INC, NB NET SOLUTIONS 36 INC, NB NET
SOLUTIONS 37 INC, NB NET SOLUTIONS 38 INC, NB NET SOLUTIONS 40 INC,
NB NETWORK SOLUTIONS INC., BAYZEED CHOWDHURY, ANELL CHOWDHURY, and
NAIFUR CHOWDHURY, Case No. 1:23-cv-01934 (E.D.N.Y., Mar. 14, 2023)
seeks to recover unpaid minimum wage and overtime compensation and
unpaid "spread of hours" premium, pursuant to the Fair Labor
Standards Act and the New York Labor Law, liquidated damages and
civil penalties pursuant to the NYLL and the New York State Wage
Theft Prevention Act, prejudgment and post-judgment interest, and
attorneys' fees and costs.
The Plaintiff routinely worked in excess of forty hours per week
and paid a straight time rate for all hours at $12.50 - 13.00 per
hour. He worked shifts in excess of ten hours per day during the
employment period and were not paid a spread of hours premium. The
Defendants never paid the Plaintiff an overtime premium, and
instead paid straight time rates for overtime hours, the lawsuit
contends.
The Plaintiff and other similarly situated employees activated
mobile telephone plans, sold "BoostUp" and "Smartpay" services, and
sold accessories during their employment. As such, the Plaintiff
and other similarly situated employees were entitled to commissions
for this work. Despite earning these commissions, the Defendants
regularly and frequently failed and refused to pay Plaintiff and
other similarly situated employees the full amount of the
commissions that were due and owing, the lawsuit claims.
The Defendants allegedly implemented and maintained a universal
policy of illegally deducting money from the Plaintiff and other
similarly situated employees' weekly wages and monthly commissions.
The Defendants would deduct an amount far greater than the value of
time involved in Plaintiff' lateness. For example, being 5 minutes
late amounted to $10 deduction, which was greater than or equal to
Plaintiff's regular hourly rate, the lawsuit adds.
Mr. Arenas and all other similarly situated employees, were jointly
employed by the Defendants as retail clerks at Defendants' Boost
Mobile retail stores.
NB Net owns and operates Boost Mobile retail stores.[BN]
The Plaintiff is represented by:
Mohammed Gangat, Esq.
LAW OFFICE OF MOHAMMED GANGAT
675 Third Avenue, Suite 1810,
New York, NY 10017
Telephone: (718) 669-0714
E-mail: mgangat@gangatpllc.com
NEW ENGLAND BIOLABS: Class Settlement in Miller Suit Wins Final OK
------------------------------------------------------------------
In the case, NEW ENGLAND BIOLABS, INC., Plaintiff and Counterclaim
Defendant v. RALPH T. MILLER, Defendant and Counterclaim Plaintiff.
RALPH T. MILLER Third Party Plaintiff v. COMMITTEE OF NEW ENGLAND
BIOLABS, INC. EMPLOYEES' STOCK OWNERSHIP PLAN, PERSONAL
REPRESENTATIVE OF DONALD COMB, JAMES V. ELLARD, RICHARD IRELAND,
and BRIAN TINGER, Third Party Defendants, and NEW ENGLAND BIOLABS,
INC. EMPLOYEE STOCK OWNERSHIP PLAN & TRUST Nominal Defendant, Case
No. 1:20-cv-11234-RGS (D. Mass.), Judge Richard G. Stearns of the
U.S. District Court for the District of Massachusetts grants the
Defendant and Miller's Unopposed Motion for Final Approval of Class
Action Settlement.
The case came before the Court on the Defendant and Counterclaim
Plaintiff Miller's Unopposed Motion for Final Approval of Class
Action Settlement. Based upon his review of the motion and the
memorandum submitted in support thereof, Judge Stearns grants the
motion, finally approves the Settlement.
The Class as defined by the Court's Order dated Oct. 26, 2022 is
finally certified for settlement purposes under Rule 23(a) and Rule
23(b)(2) as follows: All persons who are former employees of New
England Biolabs, Inc. and who are or were participants in the New
England Biolabs, Inc. Employee Stock Ownership Plan and Trust and
whose accounts were liquidated on or after September 30, 2016,
through October 31, 2019, and the beneficiaries of such
participants.
Pursuant to Rules 23(a)(4) and 23(g), Judge Stearns confirms the
Court's prior appointment of Miller as representatives of the Class
and of R. Joseph Barton (now of Barton & Downes LLP) and Jonathan
Feigenbaum as the Co-Lead Class Counsel.
The distribution of the Notice of Class Action Settlement was in
accordance with the terms of the Settlement and the Preliminary
Approval Order. The NEB Parties have caused to be served a notice
of the proposed Settlement on appropriate state and federal
officials in accordance with the requirements under the Class
Action Fairness Act, 28 U.S.C Section 1715(b), and have satisfied
their obligations thereunder.
The Plan of Allocation proposes that the Settlement Amount will be
allocated among all eligible Class Members on a pro rata basis in
proportion to their losses as calculated by the Class Counsel with
the assistance of their expert. Judge Stearns finds that the Plan
of Allocation is fair, reasonable, and adequate and finally
approves the Plan of Allocation.
Judge Stearns has separately addressed the Class Counsel's Motion
for Reimbursement of Litigation Expenses in the Court's Order of
Jan. 30, 2023.
Miller and the Class are barred and permanently enjoined from
prosecuting any and all Settled Claims against any person from whom
they have released claims as provided by the Settlement Agreement.
Judge Stearns dismisses the Action with prejudice. Nothing in his
Order or in the Final judgment entered in connection with his Order
will preclude any action to enforce the Settlement Agreement or any
other claims not released by the Settlement Agreement.
There is no just reason to delay entry of the Order and Final
Judgment, and immediate entry by the Clerk of Court is directed
pursuant to Rule 54(b) of the Federal Rules of Civil Procedure.
The Court has jurisdiction to enter the Order and the accompanying
Final Judgment. Without affecting the finality of the Order and
Final Judgment in any way, the Court expressly retains exclusive
jurisdiction as to all matters relating to (a) implementation of
this Settlement Agreement; (b) disposition of the Settlement Fund
and distributions from the Settlement Fund; (c) any claim or motion
by Miller or the Class Counsel for attorneys' fees or litigation
expenses, and (d) enforcement and administration of this Settlement
Agreement, including the release provisions thereof.
A full-text copy of the Court's March 1, 2023 Order is available at
https://tinyurl.com/2p9msfey from Leagle.com.
NEW YORK, NY: Fails to Pay OT Compensation Under FLSA, Clarke Says
------------------------------------------------------------------
BRIAN A. CLARKE, et al., and all others similarly situated v. CITY
OF NEW YORK,, Case No.1:23-cv-02158 (S.D.N.Y., Mar. 14, 2023) seeks
to recover overtime compensation pursuant to the Fair Labor
Standards Act.
The Plaintiffs are regularly scheduled to work five days a week and
to work eight and one-half hour shifts with a one-half hour
uncompensated meal period each day. However, the City fails to
compensate the Plaintiffs and all others similarly situated for all
hours worked in excess of 40 in a workweek at a rate of one and
one-half times their regular rate of pay, the suit claims.
Accordingly, the Plaintiffs and all others similarly situated work
during some or all of their 30-minute unpaid meal periods
performing their regular job duties and remain “on call” and
ready to respond as needed, but the Plaintiffs are not compensated
for this work time.
CityTime automatically deducts one-half hour (30 minutes) each day
for the Plaintiffs’ uncompensated meal periods regardless of
whether or not the Plaintiffs work through all or part of their
uncompensated meal period and categorizes this time as
"uncompensated," the suit adds.
The Plaintiffs are current and former employees of the Defendant in
the positions of Urban Park Ranger, Associate Urban Park Ranger,
and/or Associate Park Service Worker in the Department of Parks and
Recreation.
The Plaintiffs include DELANO DORSAINT, DAVID POUNCY III, MATILDA
A. ACQUAYE, HARRY E. AGUILAR, RACHID AITOUMGHAR, TIARA M.
ALEXANDER, ADAM N. ALGHAITHY, RICARDO M. ALVEAR, CORIE S. ANDERSON,
ALIX ANTOINE, RYAN ARBOLEDA, CHARLES J. ARGENTO, SALVATORE P.
ASARO, SHARAJOY R. AYA, DANIEL P. BADOLATO, MALEIK M. BAKER, NATHAN
L. BANKS, JULIO BATISTA, NADILYN L. BEATO, CHRISTOPHER J. BENNETT
LEOPOLD A. BENNETT, ROBERT J. BENNETT, JOSEPH F. BILELLA, KENNETH
BLACKWELL, MEGAN F. BLAGDEN, FERNANDO BLANCO, ERIC J. BOCHNAK,
FRANKLIN BODERO, GARY J. BONANEY, ROBERT C. BRADFIELD, NICOLE
BREWER, CHRISTOPHER I. BRISTOLE, LEWIS BRISTOLE, ALEXANDER P.
BROWER, RONALD K. BROWN, BARBRA BRUSH, STEVEN B. BUDDENHAGEN,
DENNIS L. BURNS, LOUIS A. BURNS, CHRISTOPHER I. BURTON, JEFFREY
CABRERA, DAVID A. CALDERON, ADRIANA M. CAMINERO, WILFREDO
CARABALLO, WASHINGTON G. CARDENAS, JESSICA CARRERO, MICHELLE A.
CATANIA, CARLOS A. CEVILLE, ANIL CHANDRAKUMAR, CONNOR Y. CHOW,
DAVID CHOY, EVA COCOLI, FERDINAND J. COLLAZO, CARLTON L. CONHEIM,
JERRY CORDERO, AXELL R. COREA REYES, JESSICA N. COWAN, MICHAEL J.
CRIMI, JOSEPH C. CZEISEL, JOHN P. DAMOUR, BOBBY L. DAVIS JR.,
CHRISTIAN DE LOS SANTOS, REYNELL S. DE LOS SANTOS, LOUIE DELVALLE,
FRANK A. DEMARIA, ANTHONY L. DENICOLA, EDWARD D. DENNIHY-BAILEY,
CHRISTOPHER I. DENTON, DYLAN P. DI LUCCIO, CHARLES A. DICKSON,
NATALIA R. DIFRANCESCO, DARRYL Y. DIMANCHE, BRANDIN R. DIXON,
NATALYA N. DIXON, MICHERLY DORCELY, LEONARD I. DUTAN, TANYA D.
EASTMAN, OREOFE O. EGBERONGBE, VANESSA A. EMANUEL, CYNTHIA ESPADA,
IAN A. EVANS, HAYDEE M. FAJARDO, IYABODE M. FASASI, SONIA T.
FELDER, ANGEL M. FIGUEROA, MICHAEL A. FINLEY, RICHARD A. FLYNN,
GIOVANNI E. FRANCO, GLORIA I. GARCIA, LEONEL GARCIA, JUSTIN S.
GARGIULO, STEVE GAUVY, STEVEN R. GAZINSKI, PHILLIP J. GENITI, LUIS
M. GIL, ALYSSA S. GONZALEZ, DIANNE GONZALEZ, YOJANA J. GONZALEZ,
RAYMOND GRANBY, EUSI K. GRANNUM, ABUBAKAR K. GRANT, CLIVE W.
GRIFFITHS II, JOSE L. GUARTAN, KEASHIA F. GUY, GARY GUZMAN, MARCO
A. GUZMAN, ZIYHANI N. HAMILTON, MAURICE HARRIS, ANTWAN A. HAYES,
JONATHAN R. HENGBER, KENESHA A. HENRY, SACHEEN HENRY, MARLON
HINKSON, BRIAN C. HOLEC, SPYRIDON P. HORMOVAS,
CLAIR M. HOWE, KAITLYN M. HURD, WILLIAM J. HURLEY, TAREQUE INAN,
LOVELL J. IVORY, BERNICE JACKSON, CHRISTOPHER C. JACKSON, ERWIN F.
JALBUNA, KENDALL A. JAMES, LAWRENCE K. JAMES JR., LEANN M. JARVIS,
LIANGYI JIANG, ANTHONY F. JIMENEZ, SHAWN S. JOHNSON, UNIQUE S.
JOHNSON, WILLIAM R. JOHNSON, ABRIA S. JONES, DANASIA L. JONES,
MONIQUE S. JONES, BARTHEL JOSEPH, SUNIL JOSHI, LINDSAY A.
JURGIELEWICZ, NICOLLETTE KACZMAREK, ANGELICA KAGANOVSKY, MONICA C.
KELLY, ILIYASU U. KENCHI, SHANE A. KESNIG, GHANIM A. KHALIL, AMEER
H. KHAN, NAIMUL H. KHONDAKER, CHEHYONG KIM, ALEXANDERIA E. KIZER,
DESSIE R. KOGER, ISSAKA KOUDOUGOU, JONATHAN F. KOVACS, LYUDMILA A.
KRAVTSOVA, NICOLE L. KULPOWSKY, EMALIA LA ROCHE, ARMAND LABOY,
BRANDON M. LAEZZA, ZURIEL LARA, NATALIE A. LATIBEAUDIERE, LUIS A.
LEBRON, BRYANT G. LEE, LAQUINN M. LEE, KWESI D. LETREN, NICHOLAS
LETTERESE, JENNA V. LEVENDOSKY, NATASHA M. LEWIS, SEUNGCHAN LIM,
BRIAN LIN, NICHOLAS LUGO, KAYLA N. MACKEY, ROBERT M. MADERA, STEVE
MALDONADO, JOHN A. MARCHETTA, ROBERT MARIANI JR., JAMES D.
MARSHALL, JAY B. MARTINELLO, YADALIS MARTINEZ, MICHELE C. MASON,
ROBERT J. MASTRIANNI, DIALLO R. MCCLAMMY, TAMEA A. MCINTOSH,
ALTAGRACIA A. MEDINA, JEAN S. MEDINA, VICTORIA A. MEZIK, DANIEL R.
MICHEL, VICTORIA MINUTILLO, DAVINDRA MOHABIR, CURTIS S. MOORE, NINA
J. MORALES, TYREEK D. MORRIS, LAVARR R. MOSES, MICHELLE M. MOSHON,
JAIME A. MOWATT, SANTIAGO MUINO, ANTHONY L. MURILLO, ATHEN G.
MURRAY, TERESA L. NADEEM, MIGUEL A. NAPOLEONI, BRANDON J. NAZARIO,
NOELLE A. NEWMAN, IAN D. NIEVES, JENNEL K. NOEL, TREVOR K. NORMAN,
JORDAN NUNEZ, JUSTIN V. OJEA, KATHERINE L. ORTIZ, KWANE A. OUTRAM,
ANA D. OVANDO-VALENZUELA, CYNTHIA A. PACE, KERMYT PADILLA, DIEGO M.
PANTOJA, WOO SUNG PARK, LUIS I. PASUIZACA, MICHAEL A. PATTERSON,
DESTINY B. PAYNE, KASHA E. PAZDAR, MARA E. PENDERGRASS, LUCAS E.
PETRELLO, ANTHONY M. PETTY, AQUILLE A. PIERRE, CAMEREN A. PIKE,
MARLENA I. POELZ-GIGA, WILSON J. PORTALATIN, ALEX J. PRESSMAN,
VENIA L. QUATTLEBAUM, OMESH O. RAMDHANIE, JOYCE P. RAMIREZ, MARCUS
RAMOS, RICHARD D. RAMOS, ELOISA C. REYES, FRANK J. RICOTTA JR.,
JOSE L. RIVERA, JAMES E. ROBINSON, LEVAR ROBINSON, JEFFREY R.
ROCHE, BRIAN M. RODRIGUEZ, LEANNA M. RODRIGUEZ, KELLY ROMERO, HOMMY
ROSA TORRES, REGINA N. RUSSELL DAVENPORT, YACINTHE S. SAINT PIERRE,
GEORGE T. SALCEDO, CONRAD S. SCHATZ, AMANDA J. SEAQUIST, ROBERTO S.
SEEMUNGAL, GERMAIN SELBY, JOEL SEMANDUY, CARLOS O. SEMIDEY JR.,
CAROLYN A. SHAIR, CARLY L. SHEINBERG, LUKE D. SHIELDS, HERALD F.
SILVA, WINTER A. SIMS, MANJIT SINGH, MAX N. SOO, ANACELIA SOTO,
SEAN SPENCER, PHUCHONG SRISURO, MORGAN S. STARLIGHT, ARTHUR C.
STEWART, GERALDINE STROUD, ATIYA Z. SUTTON, STEPHANIE TAVERAS,
MICHAEL J. TERRANOVA, MARIO H. THOMPSON, SARA M. THOMPSON, DESIREE
TOBIN, KEITH A. TOFTE, ANGELA M. TORRES, WILSON L. TORRES, ZORAIDA
TORRES, RISHEIN N. TRAMMELL, ARMAND J. TROCHE, KAYLA A. TUCKER,
ROBERTO VALLE, JEFFREY M. VANDERVENNET, GABRIEL J. VAZQUEZ, RICKY
VAZQUEZ, MATEO VELEZ, JUDITH A. VELOSKY, JAMES S. VELTRI, SUSANA M.
VILLEGAS, DAVID VOLCY, PHILLIP D. VOLCY, REYNA WANG, WILLIAM A.
WARD, TOSHONIE I. WARNER, VICTOR V. WATSON, STANISLAUS P. WEBSTER,
LEONIDAS A. WELLS, IRENA E. WERNER, MICHAEL J. WHITTEN, ROBIN R.
WICKERT, CHARLES WIGFALL, DENYEA T. WILCOX, SHARIF S. WILLIAMSON,
IMARI J. WILLIS, CHRISTOPHER T. WOOD, HORACE H. WOODROFFE, MATTHEW
W. WOTIPKA, NICHOLAS J. WYANT, DAVINA R. YANCEY, KLERON L. YARDE,
JOSHUA J. YOUNG, and OWEN YUN.
New York City comprises 5 boroughs sitting where the Hudson River
meets the Atlantic Ocean.[BN]
The Plaintiffs are represented by:
Gregory K. McGillivary, Esq.
Diana J. Nobile, Esq.
Sarah M. Block, Esq.
Sophia Serrao, Esq.
McGILLIVARY STEELE ELKIN LLP
1101 Vermont Ave., N.W., Suite 1000
Washington, DC 20005
Telephone: (202) 833-8855
E-mail: gkm@mselaborlaw.com
djn@mselaborlaw.com
smb@mselaborlaw.com
ss@mselaborlaw.com
- and -
Hope Pordy, Esq.
Elizabeth Sprotzer, Esq.
Eliza Schultz, Esq.
SPIVAK LIPTON, LLP
1040 Avenue of the Americas 20 th Floor
New York, NY 10018
Telephone: (212) 765-2100
E-mail: hpordy@spivaklipton.com
esprotzer@spivaklipton.com
eschultz@spivaklipton.com
OCUGEN INC: Court Dismisses COVAXIN Securities Suit With Prejudice
------------------------------------------------------------------
In the case, IN RE OCUGEN, INC. SECURITIES LITIGATION, Civil Action
Master File No. 21-2725 (E.D. Pa.), Judge Chad F. Kenney of the
U.S. District Court for the Eastern District of Pennsylvania grants
the Defendants' Motion to Dismiss and dismisses the case with
prejudice.
Lead Plaintiff Andre Galan Bernd Benayon, individually and on
behalf of a putative class, brings three claims against Ocugen, Mr.
Musunuri (Ocugen's Co-Founder, CEO, and Chairman), and Dr. Forrest
(a member of Ocugen's Vaccine Scientific Advisory Board and Acting
Chief Medical Officer), alleging securities fraud under Section
10(b) of the Exchange Act, 15 U.S.C. Section 78(j)(b), and SEC Rule
10b-5, 17 C.F.R. Section 240.10b-5, against all Defendants (Count
I); control person liability under Section 20(a) of the Exchange
Act, 15 U.S.C. Section 78(t), against Individual Defendants (Count
II); and insider trading under Section 20A of the Exchange Act, 15
U.S.C. Section 78t-1(a), against Mr. Musunuri (Count III).
Ocugen is a biopharmaceutical company that was founded by Mr.
Musunuri and non-party Professor Uday Kompella in 2013 to develop
treatments for rare sight-threatening diseases. As of early 2019,
the Food and Drug Administration ("FDA" or the "Agency") had not
approved any of Ocugen's drug treatments, and the company did not
have any products approved for sale. In fact, Ocugen was a failing
company; between 2013 and 2020 the Company saw only $50,620 in
total revenue and in both 2019 and 2020 the Company incurred over
$20 million in net losses. Accordingly, from 2013 through December
2020, the Company was able to fund its operations only by raising
approximately $90 million from the sale of common stock, warrants,
and convertible notes, and by securing debt.
On Sept. 27, 2019, as a result of a reverse-merger, Ocugen was
publicly listed under the ticker symbol "OCGN" on the NASDAQ which
has a minimum trading price of $1.00 per share. However, between
September 2019 and Nov. 25, 2019, Ocugen's stock declined in value
from $2.85 to $0.266 per share. By June 2020, Ocugen had abandoned
efforts of a "promising" product and had terminated one-third of
its employees. By July 2020, Ocugen's stock had declined further to
$0.196 per share. In November 2020, the Company reported via its
SEC Form 10-Q that there was "substantial doubt" that Ocugen would
be able to continue its business operations.
On Dec. 22, 2020, following the emergence of COVID-19 as an
unprecedented global pandemic, Ocugen announced that it had
executed a letter of intent to partner with Bharat Biotech
International Limited to develop and bring to the United States
market the COVAXIN vaccine. COVAXIN, which was developed in
collaboration with the Indian Council for Medical Research and the
Indian National Institute of Virology, is an inactivated
whole-virion vaccine that was ultimately approved for use in India
in January 2021. COVAXIN was a marked shift from the Company's
previous focus on blindness diseases and the Company's priorities
shifted accordingly.
On March 27, 2020, the U.S. Department of Health and Human Services
declared that the FDA could issue emergency use authorization
("EUA") for unapproved drugs, or unapproved uses of approved drugs,
under certain circumstances rather than adhering to the typical,
and more rigorous biologics license application ("BLA") process.
The EUA process affords the FDA more flexibility in authorizing a
drug for use and, importantly, allows for EUA before the conclusion
of Phase III clinical trials. To aid in the EUA process, the FDA
provided non-binding guidance to COVID-19 vaccine developers
throughout the height of the pandemic.
On Feb. 2, 2021, Ocugen announced that it had executed a definitive
agreement with Bharat for the commercialization of COVAXIN and that
it planned to pursue an EUA for the vaccine. In connection with
this announcement, it projected that it would distribute 100
million doses of COVAXIN in the United States during 2021.
In the four months following Ocugen's initial announcement that it
would seek EUA for COVAXIN, the Defendants maintained their
projected timeline and spoke optimistically of COVAXIN's path
towards EUA application submission. Indeed, the Plaintiff points to
fifteen such representations as the basis of the action. These
statements can be grouped into four categories: (i) SEC filings and
related website postings; (ii) news articles; (iii) press releases;
and (iv) investor calls.
Ocugen repeatedly projected that 100 million doses of COVAXIN would
be distributed in 2021, leading to significant profitability.
Ultimately, however, its optimism did not bear out. As instructed
by the FDA, Ocugen submitted a Master File to the Agency prior to
submitting an EUA application. Upon review of the Master File, the
FDA recommended (at an unspecified date in June 2021) that Ocugen
pursue a BLA submission rather than an EUA.
Accordingly, prior to market open on June 10, 2021, Ocugen
announced that it would pursue a BLA for COVAXIN, which necessarily
extended the anticipated timeline for vaccine approval and
distribution. In response to this news, Ocugen's stock price
declined from $9.31 per share on June 9, 2021 to $6.69 per share on
June 10, 2021. Notably, Mr. Musunuri was somewhat shielded from the
full effects of the declined stock because on May 3, June 7, and
June 8, he sold thousands of Ocugen shares pursuant to a 10b5-1
trading plan for total proceeds of $3,123,536.
The initial class action complaint alleging violation of securities
laws and premised on the described facts was filed on June 17, 2021
before the Honorable Judge Jones. Pursuant to the Private
Securities Litigation Reform Act ("PSLRA"), four class members
sought appointment of the role of Lead Plaintiff. Following full
briefing on the matter, Judge Jones consolidated the four cases and
appointed Mr. Benayon as the Lead Plaintiff on March 31, 2022.
Pursuant to a Joint Stipulation, the Lead Plaintiff filed an
Amended Complaint on June 13, 2022. Therein, he alleged securities
fraud under Section 10(b) of the Exchange Act, 15 U.S.C. Section
78(j)(b), and SEC Rule 10b-5, 17 C.F.R. Section 240.10b-5, against
all Defendants (Count I); control person liability under Section
20(a) of the Exchange Act, 15 U.S.C. Section 78(t), against
Individual Defendants (Count II); and insider trading under Section
20A of the Exchange Act, 15 U.S.C. Section 78t-1(a), against Mr.
Musunuri (Count III).
On June 21, 2022, the consolidated case was transferred to the
Honorable Judge Schiller and then again, on June 24, 2022, to this
Court. Pursuant to a stipulated scheduling agreement, the
Defendants filed the instant Motion to Dismiss on Aug. 12, 2022.
The Plaintiff filed a Response on Oct. 11, 2022 to which the
Defendants Replied on Nov. 9, 2022. The Court held oral argument on
the Defendants' Motion on Jan. 23, 2023.
First, the Defendants argue that the Plaintiff fails to state a
claim under Section 10(b) and Rule 10b-5(b) because: (i) the
Amended Complaint fails to allege an actionable misrepresentation
or omission; (ii) the Amended Complaint does not plead scienter
with particularity; (iii) the Amended Complaint has failed to plead
loss causation; and (iv) the PSLRA's safe harbor should apply.
Because he finds that the Amended Complaint fails as to the first
element, material misrepresentation or omission, Judge Kenney need
not address subsequent elements. He finds that the Plaintiff has
identified the allegedly false and misleading statements with
particularity. However, the Plaintiff fails to adequately allege
that each was misleading or false as to a material fact at the time
the statements were made.
Because the Plaintiff's "overarching omission" theory fails, Judge
Kenney examines the 15 statements alleged to determine whether any
independently rise to the level of material misrepresentations. He
finds that on the facts pled, there is no basis to conclude that
the Defendants were not genuinely working towards the goal. Indeed,
the Plaintiff offers nothing to suggest that the Defendants did not
intend to submit an EUA in the first half of 2021 at the time such
statements were made, or that the FDA had communicated that Ocugen
should not proceed towards an EUA submission. These statements,
which rely upon hindsight, cannot support the Plaintiff's claim.
Additionally, Judge Kenney says vague statements indicating that
Ocugen was making progress towards EUA submission, with the goal of
EUA approval, were nothing more than immaterial puffery that any
reasonable investor would understand as such. Accordingly, any
projections as to the timing of EUA submission or statements
regarding progress towards that goal do not support the Plaintiff's
claim.
The Plaintiff also takes issue with the Defendants' projection that
they would distribute 100 million doses of COVAXIN in 2021
following EUA approval, but such statements were not material.
Judge Kenney states that any reasonable investor would be able to
discern the Defendants' projections related to vaccine distribution
as immaterial puffery which cannot support the Plaintiff's claim.
Moreover, such statements are classically forward-looking and, to
the extent they were predated by adequate cautionary language, are
covered by the PSLRA safe harbor.
Accordingly, because the Plaintiff fails to allege any statements
or omissions which are both material and misleading, Count I must
be dismissed as to the Plaintiff's 10b5-(b) claim.
The Plaintiff also alleges liability under Rule 10b-5(a) and (c).
However, Judge Kenney holds that the Plaintiff's 10b-5(a) and (c)
claims rest entirely on the same statements alleged as to Rule
10b-5(b). Indeed, the Plaintiff does not allege any deceptive or
fraudulent acts, scheme, or practices separate from the fifteen
statements alleged. Accordingly, because the Plaintiff fails to
allege any material misstatements or omissions as described supra
and also fails to allege any other conduct giving rise to liability
beyond the alleged statements, his claims pursuant to Rule 10b-5(a)
and (c) must also be dismissed and Count I will be dismissed in its
entirety.
In Counts II and III, the Plaintiff alleges control person
liability against Individual Defendants and insider trading against
Mr. Musunuri, respectively. Because Judge Kenney finds dismissal of
Count I appropriate, Counts II and III must also be dismissed.
For the reasons he set forth, Judge Kenney grants the Defendants'
Motion to Dismiss and dismisses the case with prejudice.
A full-text copy of the Court's March 3, 2023 Memorandum is
available at https://tinyurl.com/yj6ez4w6 from Leagle.com.
PERVINE FOODS: S.D. New York Dismisses Seljak Consumer Class Suit
-----------------------------------------------------------------
In the case, CADE SELJAK, JACOB BERNARDI, and NANCY TAYLOR,
Individually and On Behalf of All Others Similarly Situated,
Plaintiffs v. PERVINE FOODS, LLC, Defendant, Case No. 21 Civ. 9561
(NRB) (S.D.N.Y.), Judge Naomi Reice Buchwald of the U.S. District
Court for the Southern District of New York grants the Defendant's
motion to dismiss the Plaintiffs' complaint.
Plaintiffs Cade Seljak, Jacob Bernardi, and Nancy Taylor bring the
purported class action against Defendant Pervine Foods on behalf of
themselves and consumers who purchased the Defendant's FITCRUNCH
Whey Protein Baked Bar products or FITBAR energy bar products
("FITBAR products"). The Defendant is a nutritional products
limited liability company organized under the laws of Pennsylvania
with its principal place of business in New York. It sells
high-protein snack products, including FITCRUNCH products and
FITBAR products.
Although the Defendant sells a variety of high-protein products,
the Plaintiffs' complaint challenges its use of the term "FIT" on
only two of its product lines: FITCRUNCH products and FITBAR
products. The products contain high levels of protein and come in
flavors that sound like desserts, including Milk & Cookies,
Chocolate Chip Cookie Dough, Apple Pie, and Chocolate Peanut
Butter.
The Plaintiffs, who purchased the products "for the protein" and
"to help with muscle gain," also believed that the products were
"healthy," despite the fact that the term "healthy" or related
terms (e.g., "health," "healthful," "healthfully," "healthfulness,"
"healthier," "healthiest," "healthily," "healthiness") do not
appear anywhere on the products' packaging. These terms also do not
appear in the advertisements cited in the complaint, which, in any
event, the Plaintiffs do not allege to have relied on when
purchasing the products.
Rather, the Plaintiffs' belief that the products were "healthy" was
based solely on defendant's use of the term "FIT" in the products'
name. Indeed, the crux of the Plaintiffs' claims is that "FIT" is a
synonym of "healthy" and that the Defendant's use of the term "FIT"
in the products' name therefore misleads consumers into thinking
the products are "healthy," when, in fact, the products contain
between 8 and 18 grams of fat, which exceeds the permissible level
of fat in products labeled as "healthy" under the Federal Food Drug
and Cosmetic Act's ("FDCA") regulations.
To be clear, each product's fat content is available along with
other nutritional information on the ingredient panel, which
appears on the back of each product's packaging. Nevertheless, the
Plaintiffs allege that all consumers who purchased the products
would reasonably believe from defendant's use of the term "FIT" in
the products' name that the products are "healthy."
Presently before the Court is the Defendant's motion to dismiss the
Plaintiffs' complaint. It argues that the Plaintiffs lack standing:
(1) to assert claims related to the FITBAR products because they
only claim to have purchased FITCRUNCH products, which are not
"substantially similar" to FITBAR products; and (2) to seek
injunctive relief because they do not allege that they would
purchase the products again.
Judge Buchwald holds that the Plaintiffs lack standing to bring
claims for injunctive relief, and that the Plaintiffs' claims based
on the argument that the Defendant's use of the term "FIT" is an
"implied nutrient content claim" under 21 U.S.C. Section 343(r)(1)
is expressly pre-empted under the NLEA, 21 U.S.C. Section
343-1(a)(5). To the extent the Plaintiffs also allege claims for
monetary relief on the basis that the Defendant's use of the term
"FIT" on their "labeling is false or misleading" under 21 U.S.C.
Section 343(a)(1), those claims are dismissed as she concludes, as
a matter of law, that a reasonable consumer would not have been
misled by defendant's labelling. Because the Plaintiffs have failed
to state a claim related to the FITCRUNCH products they did
purchase, they cannot bring claims for FITBAR products, which they
did not purchase. Accordingly, Judge Buchwald grants the
Defendant's motion to dismiss in its entirety.
Judge Buchwald also denies the Plaintiffs' request for leave to
amend. In the last sentence of their opposition to the Defendant's
motion to dismiss, the Plaintiffs ask the Court to grant them leave
to amend their complaint without any justification or a proposed
amended pleading. The Second Circuit has consistently stated that
such requests may be denied.
The Clerk is respectfully instructed to terminate the motion
pending at ECF No. 19, enter judgment for the Defendant, and close
the case.
A full-text copy of the Court's March 3, 2023 Memorandum & Order is
available at https://tinyurl.com/mwrmf33k from Leagle.com.
PILGRIM'S PRIDE: Fails to Pay Superintendents' OT Wages Under FLSA
------------------------------------------------------------------
BENNETTA GREEN, individually and on behalf of all others similarly
situated v. PILGRIM'S PRIDE CORPORATION, Case No. 1:23-cv-00661 (D.
Colo., Mar. 14, 2023) sues the Defendant for failing to pay all due
and owing overtime wages to Plaintiff pursuant to the federal Fair
Labor Standards Act and the federal Portal-to-Portal Pay Act.
Ms. Green is employed by the Defendant as a superintendent in
connection with its meat packing business operations. Her primary
job duties involve working on the line and packaging meat products,
the same as hourly-paid employees working on the production line.
The Plaintiff files this lawsuit individually and as an FLSA
collective action on behalf of all similarly situated current and
former superintendent employees of the Defendant who, like the
Plaintiff, were misclassified as salaried employees and were not
paid time and one-half their respective regular rates of pay for
all hours worked over 40 in each seven day workweek in the time
period of three years preceding the date this lawsuit was filed and
forward.
Ms. Green routinely worked in excess of 40 hours per workweek for
the Defendant. Her weekly work schedule typically encompassed 72
hours of work for the Defendant on average.
The Plaintiff and the Collective Action Members seek all damages
available under the FLSA, including back wages, liquidated damages,
legal fees, costs, and post-judgment interest.
Ms. Green began working for Defendant on May 30, 2022. She is a
current employee.
Pilgrim's Pride is an American, multi-national food company.[BN]
The Plaintiff is represented by:
Melinda Arbuckle, Esq.
Ricardo J. Prieto, Esq.
WAGE AND HOUR FIRM
400 North Saint Paul Street, Suite 700
Dallas, TX 75201
Telephone: (214) 210-2100
Facsimile: (469) 299-1070
E-mail: marbuckle@wageandhourfirm.com
rprieto@wageandhourfirm.com
- and -
Joseph A. Fitapelli, Esq.
Armando A. Ortiz, Esq.
Katherine Bonilla, Esq.
Fitapelli & Schaffer, LLP
28 Liberty Street, 30th Floor
New York, NY 10005
Telephone: (212) 300-0375
Facsimile: (212) 481-1333
E-mail: jiftapelli@fslawfirm.com
aortiz@fslawfirm.com
kbonilla@fslawfirm.com
- and -
Germaine Jones, Esq.
Forester Haynie, PLLC
400 North Saint Paul Street, Suite 700
Dallas, TX 75201
Telephone: (214) 210-2100
Facsimile: (469) 299-1070
E-mail: gjones@foresterhaynie.com
POOH BAH: Faces Corral Suit Over Sexually Hostile Work Environment
------------------------------------------------------------------
Stephanie Corral, Nicole Potenzo, Lisa Waddell, and Stephanie
Hansen on behalf of themselves and a class of similarly situated
persons v. Pooh Bah Enterprises, Inc., Rick's Cabaret Chicago, RCI
Hospitality Holdings, Inc., RCI Management Services, Inc.,
corporations, and Eric S. Langan, Shaun Kevlin, Lou Sweilem, Brett
Polulak, Grace Kim, Ursela "Midori" Takahashi, Chad Davis,
Individually, Case No. 1:23-cv-01603 (N.D. Ill., Mar. 14, 2023)
alleges that the Defendants created a sexually hostile and abusive
work environment in which female dancers were repeatedly subjected
to severe and egregious physical and sexual assaults.
The Defendants, through their policies, actions and practices,
knowingly fostered a hostile work environment at the Club where
customers routinely committed egregious assaults and batteries on
female dancers, including grabbing and groping dancers' intimate
private areas under their clothing, slapping dancers, exposing
their genitals, biting, choking and other outrageous and criminal
acts. These attacks occurred in the open areas of the Club, in view
of management and bouncers, who very frequently did nothing in
response. Defendants pressured and incentivized dancers to perform
"VIP" (i.e., semi-private) dances, where for obvious reasons,
attacks were even more egregious and even more likely to occur, the
Plaintiffs contend.
The Defendants created a hostile work environment for a class of
similarly situated female dancers that violates Title VII, 42
U.S.C. section 2000e et seq. The Defendants' encouragement and
assistance of the above attacks also violated the Illinois Gender
Violence Act, 740 ILCS 82/1 et seq. and the common law of Illinois,
the Plaintiffs add.
Because some of the attacks were the result, in part, of the
Defendants' overserving alcohol to certain customers (particularly
big spenders), the Defendants also violated the Illinois Dram Shop
Act, 235 ILCS 5/6-21 et seq. The Defendants allegedly conspired to
intentionally misclassify dancers as "independent contractors", as
set forth herein, to avoid compliance with employment statutes,
including Title VII and the ADEA. Further, Defendants took
affirmative and fraudulent steps to conceal the true nature of the
relationship. Finally, the Plaintiffs bring this action under the
Illinois Biometric Information Privacy Act (BIPA), 740 ILCS 14/1,
et seq. because the Defendants collected and stored their biometric
information without first obtaining consent, the suit further
asserts.
The Plaintiffs and other similarly situated dancers have been
severely damaged by the above-described conduct. The Plaintiffs
bring this action to vindicate their rights and the rights of the
class and collective.
Ms. Corral and Ms. Waddellworked for Defendants as a dancer at the
Club from late 2018 when Rick's current ownership (the RCI
Defendants) acquired "VIPs." They were over forty years old at the
time of their termination. Ms. Potenzo worked for Defendants as a
dancer at the Club from late 2018 until December 6, 2022. Ms.
Hansen worked for Respondents as a dancer at the Club from late
2018 when Rick's acquired it from "VIPs." She was fired in February
2022.
Pooh Bah owns and operates an adult entertainment venue known as
Rick's Cabaret.[BN]
The Plaintiffs are represented by:
M. Nieves Bolanos, Esq.
David Fish, Esq.
FISH POTTER BOLANOS , P.C.
111 E. Wacker Drive, Suite 2300
Chicago, IL 60601
E-mail: nbolanos@fishlawfirm.com
dfish@fishlawfirm.com
PREMIUM RETAIL: Denial of Arbitration Bid in Fraga Suit Vacated
---------------------------------------------------------------
In the case, SARA FRAGA, individually and on behalf of all persons
similarly situated, Plaintiff, Appellee v. PREMIUM RETAIL SERVICES,
INC., Defendant, Appellant, Case No. 22-1101 (1st Cir.), the U.S.
Court of Appeals for the First Circuit vacates the district court's
order denying Premium's request for arbitration to the extent it is
inconsistent with the Opinion.
Plaintiff Fraga brought the putative class action alleging that her
former employer, Premium, failed to pay her and other employees for
time spent working off-site. Premium, in turn, sought to compel
arbitration pursuant to an arbitration agreement that Fraga signed
as a condition of her employment. The district court denied
Premium's request for arbitration on the basis that Fraga plausibly
alleged facts that placed her within the Federal Arbitration Act's
section 1 exemption for workers engaged in interstate commerce.
Premium then filed the interlocutory appeal.
Incorporated and headquartered in Missouri, Premium provides retail
merchandising support to brands at their stores across North
America. Its services include assisting retail stores with stocking
inventory, creating merchandise displays, and keeping pricing and
signage up to date. Premium employs "merchandisers" in all fifty
states to perform these functions.
Fraga worked as a merchandiser for Premium in Massachusetts from
December 2020 to early 2021. Her zone of store locations
encompassed stores in Massachusetts, Connecticut, New Jersey, and
New York. As a merchandiser, Fraga's duties included traveling to
her assigned stores, auditing and stocking product, building
product displays, and updating product pricing and signage. Most
relevant to this appeal, Premium's job listings for merchandisers
stated that merchandisers were also expected to receive marketing
and promotional materials at their home and bring them to the
store. These materials -- which the parties call "point-of-purchase
(POP) materials" -- included items like coupons and signage
advertising retail products.
According to Fraga, Premium failed to pay her and other
merchandisers for their time spent traveling to and between
worksites and for their work performed prior to arriving at a
worksite, such as mapping out assignments and sorting and preparing
display materials. She also alleges that Premium failed to pay
overtime even though she and other merchandisers regularly worked
more than forty hours per week. Fraga claims to have typically
worked 65 to 85 hours per week. She seeks relief for herself and
similarly situated Premium merchandisers under the Fair Labor
Standards Act (for a national class) and Massachusetts law (for a
Massachusetts class).
Premium contends that Fraga's lawsuit never gets off the ground
because of an arbitration agreement she signed when she began her
employment with Premium. The agreement also contained a class
action waiver.
Invoking this agreement, Premium filed a motion styled "Motion to
Compel Arbitration and Dismiss Complaint," requesting that the
Court dismisses the Plaintiff's claims and order her to submit her
claims to arbitration on an individual basis. The only ground that
Premium advanced for either remedy was the arbitration agreement.
The district court treated Premium's filing as two separate
motions: a motion to dismiss under Federal Rule of Civil Procedure
12, and a motion to compel arbitration under the Federal
Arbitration Act (FAA). It issued an order on Jan. 31, 2022, denying
the motion to dismiss because, drawing all reasonable inferences in
favor of Fraga, it found that Fraga plausibly alleged that she fell
inside the FAA's section 1 exemption for transportation workers.
And if she fit within that exemption, her contract would be beyond
the scope of the FAA and would be governed by Massachusetts law,
which prohibited class action waivers. And if the class action
waiver were unenforceable, the agreement would require any class
action to be brought in court, not in arbitration.
In the same order, the district court purported not to rule on the
motion to compel arbitration, but effectively denied it (at least
without prejudice) by ordering Premium to answer the complaint and
negotiate a schedule for resolving all issues in the case and
setting a trial date.
Premium appeals from the district court's order, arguing that Fraga
does not fall within the FAA's exemption. Premium takes no issue
with the district court's application of Massachusetts law or
construction of the agreement's terms. Fraga contends that her
arbitration agreement is such a contract and that she is a member
of a class of workers engaged in interstate commerce.
Evaluating this contention calls for at least two undertakings: The
First Circuit begins by defining the relevant class of workers to
which the worker belongs. Then, it determines whether that class of
workers is engaged in foreign or interstate commerce.
The First Circuit adheres to the view that the class of workers to
which a worker belongs for purposes of applying the section 1
exemption is based on what the worker does at the company, not what
the company does generally. It finds that further factfinding is
necessary to determine whether Fraga belonged to a class of
transportation workers.
To summarize, if the district court finds on remand that Premium
merchandisers did not frequently deliver POP materials to
retailers, Fraga's FAA exemption argument fails. On the other hand,
if the district court finds that sorting, loading, and then
transporting POP materials to retailers were frequently performed
job duties, the court will then need to decide whether the
merchandisers were "engaged in interstate commerce" within the
meaning of section 1 when they performed those duties.
Turning to whether that class of workers is engaged in foreign or
interstate commerce, the First Circuit to the extent that Premium's
merchandisers were engaged in interstate transportation while
delivering POP materials, the record as it now stands supports a
finding that the merchandisers' sorting and loading of those
materials were practically parts of that transportation. As to
whether the merchandisers were indeed engaged in interstate
transportation, there is evidence that at least some merchandisers
(including Fraga) actually drove goods across state lines. How many
merchandisers did this and how frequently it occurred is unclear
from the record. Separately, there is Fraga's claim that even the
intrastate trips by merchandisers were parts of interstate
journeys.
To determine whether that claim has merit, the First Circuit looks
to its case law (Waithaka v. Amazon.com, Inc., 966 F.3d 10 (1st
Cir. 2020)) delineating when a class of workers transporting goods
or people intrastate is engaged in interstate commerce where it
held that couriers who delivered goods intrastate from restaurants
and grocery stores to consumers who ordered those goods from the
restaurants and grocery stores were not engaged in interstate
commerce for purposes of section 1 of the FAA.
In line with the foregoing, the First Circuit rejects Premium's
argument that the record as it now stands categorically forecloses
a finding that its merchandisers engaged in interstate commerce
when they transported the POP materials intrastate. To the
contrary, the current record would support a finding that Premium
had a contractual relationship with the retailers under which it
agreed to perform services that included the delivery of POP
materials to the retailers. The record would also support a finding
that Premium had a contractual relationship with the merchandisers
under which (with a frequency yet to be determined) Premium
required them to, among other things, deliver those POP materials
to the intended retailers. If the factual findings made on remand
confirm this view of how the transport of POP materials occurred,
then the journey of the POP materials from Premium to a
merchandiser's home, and from the merchandiser's home to the
designated retailer, was an integrated interstate journey.
Finally, the First Circuit does not address Fraga's alternative
argument that Premium merchandisers satisfy the interstate commerce
element of the section 1 exemption because they themselves
sometimes drove across state lines to deliver POP materials. The
district court may address this argument on remand once it
determines how many merchandisers made such trips and how often
they did so.
The First Circuit concludes that the district court ended up mostly
in the correct place: More factfinding is required to decide
whether to compel arbitration. The First Circuit says "mostly" only
because the district court should have finally decided the
arbitrability issue before allowing any litigation on the merits.
Otherwise, it is effectively denying Premium's motion by forcing
Premium to litigate the merits of the case.
The First Circuit therefore vacates the district court's order to
the extent it is inconsistent with its Opinion and remands for
further proceedings consistent with its Opinion. No costs are
awarded to any party.
A full-text copy of the Court's March 3, 2023 Opinion is available
at https://tinyurl.com/8yky36cz from Leagle.com.
Jonathan A. Keselenko -- jkeselenko@foleyhoag.com -- with whom
James S. Fullmer -- jfullmer@foleyhoag.com -- and Foley Hoag LLP
were on brief, for the Appellant.
Joshua P. Davis -- jdavis@bm.net -- with whom Shanon J. Carson --
scarson@bm.net -- Phyllis Maza Parker, Camille F. Rodriguez --
crodriguez@bm.net -- Alexandra K. Piazza -- apiazza@bm.net --
Berger Montague PC, Jason M. Leviton -- jason@blockleviton.com --
and Block & Leviton LLP, were on brief, for the Appellee.
PROCTER & GAMBLE: Laundry Detergent Products Contain Toxins
-----------------------------------------------------------
topclassactions.com reports that Procter & Gamble manufactures and
sells Gain brand laundry detergent that is designed to look
environmentally friendly, despite it allegedly containing high
levels of the toxin 1,4-Dioxane, a new class action lawsuit
alleges.
Plaintiff Darlene Hangen-Hall claims the packaging for Gain laundry
detergent is green and contains a design of natural elements --
such as stylized flowers, leaves, and butterflies -- in order to
make the product appear sustainable and environmentally friendly.
Hangen-Hall argues Procter & Gamble is allegedly "greenwashing" its
Gain laundry detergent product to target consumers who are willing
to pay more for items they believe are sustainable and help protect
the environment.
"Research has shown that this kind of imagery evokes positive
emotional responses in consumers, and is especially effective when
consumers are not particularly knowledgeable and aware of
greenwashing methods," the Gain class action states.
Hangen Hall wants to represent a New York class and multi-state
consumer fraud class of individuals who have purchased the Gain
laundry detergent product during the statutes of limitations for
each cause of action alleged.
Gain laundry detergent contains probable human carcinogen, says
class action
Despite the packaging for the Gain laundry detergent containing
natural elements, independent testing has shown that the product
contains 3.32 parts per million of the toxin 1,4-Dioxane, the Gain
class action alleges.
The National Institutes of Health and Environmental Protection
Agency, meanwhile, both classify 1,4-Dioxane as a "probable human
carcinogen" that accumulates in a person's body over time,
according to the Gain class action.
Hangen-Hall argues that, despite the alleged risk to human health
presented by 1,4-Dioxane, Procter & Gamble fails to disclose the
toxin's alleged inclusion in its Gain laundry detergent product to
consumers.
"Defendant had a duty to disclose and/or provide non-deceptive
descriptions and marketing of the Product," the Gain class action
states.
Hangen-Hall claims Procter & Gamble is guilty of fraud, unjust
enrichment, and negligent misrepresentation, and is in violation of
the Magnuson Moss Warranty Act, several state consumer fraud acts,
and New York General Business Law.
Plaintiff is demanding a jury trial and requesting declaratory
relief along with an award of monetary, statutory, and/or punitive
damages for herself and all class members.
In other laundry detergent news, Art of Green initiated a recall
for more than 14,000 of its laundry detergent products last
December over concerns they may have been contaminated with
bacteria.
The plaintiff is represented by Spencer Sheehan of Sheehan &
Associates, P.C.
The Gain greenwashing class action lawsuit is Hangen-Hall, et al.
v. The Procter & Gamble Company, Case No. 1:23-cv-00218, in the
U.S. District Court for the Western District of New York.[GN]
RAVI ZACHARIAS: Court Strikes Class Allegations in Carrier Suit
---------------------------------------------------------------
In the case, DEREK CARRIER, et al., Plaintiffs v. RAVI ZACHARIAS
INTERNATIONAL MINISTRIES, INC., a Georgia Domestic Non-Profit
Corporation, et al., Defendants, Civil Action File No.
1:21-CV-3161-TWT (N.D. Ga.), Judge Thomas W. Thrash, Jr., of the
U.S. District Court for the Northern District of Georgia, Atlanta
Division:
a. denies as moot the parties' Joint Request for Scheduling
Conference;
b. grants Defendants Ravi Zacharias International Ministries,
Inc. and RZIM Productions, Inc.'s Motion to Strike Class
Allegations;
c. denies as moot the Plaintiffs' Motion for Entry of
Plaintiffs' Proposed Stipulated Agreement Regarding
Discovery of Electronically Stored Information;
d. denies without prejudice the Plaintiffs' Motion For a
Ruling on the Parties' Joint Report Re Local Rule 23.1(C)
Concerning Communication with Actual or Putative Class
Members; and
e. denies without prejudice the Plaintiffs' Motion for Entry
of Plaintiffs' Stipulated Protective Order.
The lawsuit is an action involving alleged charity fraud. In the
First Amended Complaint, the Plaintiffs assert their two remaining
claims -- for unjust enrichment and violation of Georgia's Fair
Business Practices Act (the "FBPA") -- on behalf of a nationwide
class, defined as: "All persons in the United States who made
contributions of monetary value to Ravi Zacharias and/or the Ravi
Zacharias International Ministry from 2004 through Feb. 9, 2021."
Now, before discovery begins, Defendants Ravi Zacharias
International Ministries, Inc. and RZIM Productions, Inc.
(collectively, "RZIM") move to strike the class allegations in the
First Amended Complaint. In support, RZIM argues that
constitutional and factual hurdles will make it impossible to
certify the Proposed Class and that the Plaintiffs must instead
pursue their claims in their individual capacities.
Judge Thrash first examines the Motion to Strike. At the outset,
the Plaintiffs argue that the Motion to Strike should be denied
because it is procedurally improper and untimely under Rule
12(g)(2).
However, the trouble for the Plaintiffs is that RZIM cites Rule
23(d)(1)(D), not Rule 12(f), as the basis for the Motion to Strike.
Judge Thrash states that Rule 23(d)(1)(D) vests courts with
independent authority to strike or dismiss class allegations.
Several federal courts have entertained Rule 23(d) motions to
strike after a Rule 12 motion to dismiss has been filed. Judge
Thrash holds that he will do the same.
Judge Thrash then turns to RZIM's arguments for striking the class
allegations in the First Amended Complaint. First, RZIM contends
that certification of the Proposed Class would violate the First
Amendment, the Fourteenth Amendment, and the Religious Freedom
Restoration Act (the "RFRA"). Because the Court would have to
compel disclosure of RZIM's donors to ascertain the Proposed Class,
RZIM asserts that a class action would infringe on those donors'
constitutional and statutory rights to freely associate and engage
in religious expression.
Judge Thrash holds that the Plaintiffs have made no showing that
the government has a substantial interest in the action going
forward as a class action. Any governmental interest in preventing
fraud may be achieved by the individual Plaintiffs proceeding as a
non-class action. In addition, the weight of authorities holds that
the RFRA does not apply in cases where, as in the instant case, the
government is not a party. Therefore, RZIM cannot invoke the RFRA
to avoid the class action brought by private plaintiffs.
Next, RZIM argues that the Plaintiffs' claims cannot fulfill the
requirements for class certification under Rule 23. In response,
the Plaintiffs argue that the lack of discovery in this case
prevents a rigorous Rule 23 analysis.
Judge Thrash says given the Plaintiffs' class definition, he is not
persuaded that a class action is superior to other available
methods for fairly and efficiently adjudicating the controversy.
Moreover, as pled, there is no further deceptive behavior by RZIM
that would warrant injunctive relief. Thus, the Plaintiffs' Rule
23(b)(2) allegations should be struck from the First Amended
Complaint. Because the Proposed Class cannot satisfy any of the
requirements in Rule 23(b), Judge Thrash concludes that the case is
not amenable to class certification.
For the foregoing reasons, Judge Thrash grants the Motion to Strike
Class Allegations and dismisses the class allegations of the First
Amended Complaint. The Defendants have 30 days from the date of the
Order to file their Answers, and discovery will begin pursuant to
Local Rule 26.2(A).
Judge Thrash denies as moot the parties' Joint Request for
Scheduling Conference. He denies without prejudice the Plaintiffs'
Motion for Entry of Plaintiffs' Proposed Stipulated Agreement
Regarding Discovery of Electronically Stored Information and their
Motion for Entry of Stipulated Protective Order. The parties are
directed to negotiate in good faith in a further attempt to reach
agreement on the subject matter of the motions.
Judge Thrash also denies as moot the Parties' Joint Report Re Local
Rule 23.1(C) Concerning Communication with Actual or Putative Class
Members.
A full-text copy of the Court's March 3, 2023 Opinion & Order is
available at https://tinyurl.com/28np2utw from Leagle.com.
SERVICE CORP: Class Settlement in Taylor Suit Wins Final Approval
-----------------------------------------------------------------
In the case, NANCY TAYLOR, et al., on behalf of themselves and all
others similarly situated, Plaintiffs v. SERVICE CORPORATION
INTERNATIONAL, et al., Defendants, Case No. 20-CV-60709-RAR (S.D.
Fla.), Judge Rodolfo A. Ruiz, II of the U.S. District Court for the
SOuthern District of Florida grants the Plaintiffs' Unopposed
Motion for Final Approval of Class Action Settlement and the Class
Counsel's Motion for an Award of Attorneys' Fees.
The Plaintiffs and the Defendants executed and filed a Settlement
Agreement, as well as exhibits thereto, with the Court on Sept. 7,
2022. The Settlement Agreement provides for the settlement of the
matter with the Defendants on behalf of the representative
Plaintiffs and the members of the Settlement Classes, subject to
final approval by the Court.
Plaintiff Taylor filed her Unopposed Motion for Preliminary
Approval of Class Action Settlement on Sept. 7, 2022. On Sept. 19,
2022, the Court held a Preliminary Approval Hearing. The Court, on
Sept. 20, 2022, entered an Order Certifying Settlement Class and
Preliminary Approval of Class Action Settlement, preliminarily
approving the Settlement, preliminarily certifying, for settlement
purposes only, the Settlement Classes, and scheduling a hearing for
final approval of the settlement for Jan. 19, 2023.
As part of its Preliminary Approval Order, the Court certified for
settlement purposes the Settlement Classes defined as follows:
Preneed and Retail Merchandise Plan Settlement Class: All
persons who, between April 1, 2016 and the present, purchased a
Preneed Funeral Agreement and a Retail Merchandise Agreement from
Neptune or NCS (Preneed and Retail Merchandise Plan), within the
State of Florida, excluding all Preneed and Retail Merchandise
Plans for which the contracted for cremation services have been
performed, and all irrevocable preneed contracts.
TRPP Settlement Class: All persons who between April 1, 2016,
and present purchased a Transportation and Relocation Protection
Plan (TRPP) from Defendants within the State of Florida (Class
Period), excluding all TRPPs where the beneficiary has already been
cremated or buried.
The settlement provides that the Settlement Class Members had the
ability to submit claims to cancel the contract for their purchased
services, after which the Defendants would provide the Settlement
Class Members with a full refund of the purchase price paid, less
any amounts previously refunded. In the event a Settlement Class
Member did not exercise this option, the Defendants agreed to
provide the Settlement Class Member with an online obituary at no
extra charge. The settlement also provides that the Defendants will
modify certain forms to include a disclosure negotiated by the
parties.
The Court ordered that the Individual Notice and Claim Form be
mailed by the Settlement Administrator, Angeion Group, to all
potential Settlement Class Members whose names were ascertained by
the Defendants through a reasonable search of their data at their
last known address, and that the Administrator implement the
Settlement Website. It then ordered that supplemental notice be
sent to a small subset of Settlement Class Members by Jan. 25,
2023.
The Settlement Class Members were given until Dec. 15, 2022, to opt
out of the Settlement and were given until Dec. 20, 2022, to object
to the Settlement. Those who received the supplemental notice were
given until Feb. 24, 2023, to opt out of or object to the
Settlement. While the Administrator originally received one
objection, the Settlement Class Member withdrew the objection and
ultimately filed a claim.
The Class Counsel filed their Application for Fees on Nov. 18,
2022, requesting $5.5 million, to be paid by the Defendants
separately from any monetary relief provided to the Settlement
Class Members. The Defendants do not object to this fee request.
The parties negotiated attorneys' fees separately from the other
terms of the Settlement.
The cause comes before the Court upon the Motion for Final Approval
and Application for Fees.
Judge Ruiz finds that (i) the Lawsuit meets all the requirements of
Federal Rule of Civil Procedure 23, due process and all other
applicable rules and law, and can therefore be certified as a
settlement class action; (ii) the parties and the Settlement
Administrator have satisfactorily demonstrated that the notices
were given in accordance with the Court's orders; and (iii) it is
unnecessary to afford any additional opportunity to request
exclusion to individual Settlement Class Members who had an earlier
opportunity to request exclusion but did not do so.
For these reasons, Judge Ruiz holds that the Settlement is
ultimately fair, adequate, and reasonable; and the Class Counsel's
request for fees of $5.5 million is reasonable and appropriate.
Accordingly, the Motion for Final Approval and Application for Fees
are granted. The Settlement Agreement is approved.
Judge Ruiz certifies the Settlement Classes, for Settlement
purposes only, under Federal Rule of Civil Procedure 23 and all
other applicable rules and law.
Timely requests for exclusion were submitted by 505 potential
members of the Settlement Classes and those potential Settlement
Class Members (Exhibit B) are excluded from the Settlement Classes.
All other potential members of the Settlement Classes are adjudged
to be members of the Settlement Classes and are bound by this Order
and Judgment and by the Settlement Agreement, including the
releases provided for in the Settlement Agreement.
The parties to the Settlement Agreement are directed to comply with
and consummate the Settlement Agreement in accordance with its
terms.
Judge Ruiz confirms the appointment of the following Class Counsel
as the counsel for the Settlement Classes pursuant to Federal Rule
of Civil Procedure 23(g): Randall P. Ewing, Jr. KOREIN TILLERY LLC
205 North Michigan Plaza, Suite 1950 Chicago, IL 60601 Phone: (312)
641-9750 rewing@koreintillery.com Alec H. Schultz HILGERS GRABEN
PLLC 1221 Brickell Avenue, Suite 900 Miami, Florida 33131 Phone:
305.630.8304 aschultz@hilgersgraben.com
The Lawsuit is dismissed in its entirety on the merits, with
prejudice and without leave to amend, and all members of the
Settlement Classes are bound by the terms of the Settlement
Agreement and are forever barred and permanently enjoined from
starting, continuing, participating in, litigating or receiving any
benefits or other relief from any other lawsuit, arbitration, or
administrative or regulatory proceeding or order based on or
relating to the claims, facts or circumstances alleged in the
Lawsuit and/or the Preneed and Retail Merchandise Released Claims
and/or the TRPP Released Claims against the Released Persons.
Accordingly, any future claims arising out of the conduct alleged
in the Third Amended Class Action Complaint and claims released
herein are barred by res judicata. There will be no limits to the
res judicata effect of this Order and Judgment. Any person in
contempt of this injunction may be subject to sanctions, including
payment of reasonable attorneys' fees incurred to seek enforcement
of the injunction.
Upon the entry of the Order and Judgment, each Settlement Class
Member will be conclusively deemed to have fully released and
discharged, to the fullest extent permitted by law, any and all of
the Released Persons from all of the Preneed and Retail Merchandise
Released Claims and TRPP Released Claims.
The parties are authorized, without further approval from the
Court, to agree to and adopt such amendments, modifications, and
expansions of the Settlement Agreement and its implementing
documents as: (a) will be consistent in all material respects with
this Order and Judgment; or (b) do not limit the rights of any
Settlement Class Members.
The Settlement Agreement and the Order and Judgment are not deemed
admissions of liability or fault by the Defendants or other
Released Persons, or a finding of the validity of any claims in the
Lawsuit, of any wrongdoing or violation of law by the Defendants or
other Released Persons, or of the certifiability of any classes
except for settlement purposes.
Pursuant to the Class Counsel's Application for Fees the Court
awards Class Counsel the sum of $5.5 million in attorneys' fees.
The Defendants will pay such fees to the Class Counsel pursuant to
the terms of the Settlement Agreement.
As soon as reasonably possible after the completion of all payments
to the Participating Class Members eligible for payment pursuant to
the Settlement Agreement, the parties will file with the Court a
final report, together with a proposed order approving such report,
indicating that distribution in accordance with the terms of the
Settlement Agreement and the Court's prior Orders has been
completed.
If the Settlement does not become final in accordance with the
terms of the Settlement Agreement, or is terminated pursuant to the
Settlement Agreement (including Section XVI), the Order and
Judgment will be rendered null and void to the extent provided by
and in accordance with the Settlement Agreement.
Without in any way affecting the finality of the Order and Judgment
for purposes of appeal, the Court will retain continuing
jurisdiction over the Lawsuit.
A full-text copy of the Court's March 3, 2023 Order is available at
https://tinyurl.com/4wptx6m7 from Leagle.com.
SJ PERRY: Fails to Pay OT Compensation Under FLSA, Davila Alleges
-----------------------------------------------------------------
ADDISON DAVILA, on behalf of himself and all other others similarly
situated v. SJ Perry LLC d/b/a Chick-fil-A/Newmarket DTO (04385),
Case No. 4:23-cv-00033 (E.D. Va., Mar. 14, 2023) alleges that
Defendant failed to pay its hourly employees for their time spent
tabulating cash received from customers at the end of their shifts,
in violation of the Fair Labor Standards Act.
According to the complaint, it is a practice of the Defendant to
refuse to pay employees for time spent tabulating cash received
from customers at the end of their shifts, a required and necessary
task. As such, the Members of the Class are owed additional
compensation plus liquidated damages, attorneys' fees, and expenses
for precisely the same reasons as Mr. Davila.
Mr. Davila has been employed continuously by the Defendant at the
Newmarket Location since September 13, 2022 at a rate of $15.50 per
hour. He has worked approximately 980 hours at the Newmarket
Location, including overtime hours.
SJ Perry is a franchisee of the international fast food chain
Chick-Fil-A and operates two restaurants, located at 5018 Mercury
Boulevard, Hampton, Virginia and 110 Market Place Drive, Hampton,
Virginia.[BN]
The Plaintiff is represented by:
David W. Thomas, Esq.
MICHIEHAMLETT PLLC
310 4th Street NE, 2nd Floor
Charlottesville, VA 22902
Telephone: (434) 951-7224
Facsimile: (434) 951-7244
E-mail: dthomas@michiehamlett.com
SKILLZ INC: Jedrzejczyk Class Suit Dismissed Without Leave to Amend
-------------------------------------------------------------------
In the case, THOMAS JEDRZEJCZYK, et al., Plaintiffs v. SKILLZ INC.,
et al., Defendants, Case No. 21-cv-03450-RS (N.D. Cal.), Judge
Richard Seeborg of the U.S. District Court for the Northern
District of California grants the Defendants' motion to dismiss.
The Plaintiffs in the putative securities class action aver
violations of the Securities Exchange Act of 1934 and SEC Rule
10b-5 by Skillz and its corporate officers. In the operative Second
Amended Consolidated Complaint ("SACC"), the Plaintiffs outline a
series of averred misrepresentations and/or omissions of fact made
by the Defendants between Dec. 16, 2020, and May 4, 2021.
Skillz, a mobile gaming technology company, operates a "competitive
gameplay platform" that allows third-party developers to build and
market games in which users can play in free or paid "contests"
against each other. The Skillz business model involves two steps:
(1) user acquisition, and (2) user engagement. The former refers to
the process of getting new users to download and play games that
integrate with Skillz's platform, while the latter focuses on
converting users that download games into paying users by getting
them to spend money to enter a paid contest. The second step is
critical, as Skillz only generates revenue by collecting a
percentage of the entry fees for paid contests occurring in these
games. Skillz went public on Dec. 16, 2020, which was followed by a
second public offering in March 2021; its stock price fluctuated
throughout this time period.
Plaintiff Jedrzejczyk and three other Skillz shareholders brought
the putative class action on May 7, 2021, under the Exchange Act,
15 U.S.C. Sections 78j(b), 78t(a); SEC Rule 10b-5 promulgated
thereunder, 17 C.F.R. Section 240.10b-5; and the Securities Act of
1933, 15 U.S.C. Section 77k. The Defendants moved to dismiss, and
that motion was granted on July 5, 2022, with leave to amend. The
order noted that the Plaintiffs had failed adequately to plead
falsity and scienter with respect to any of their five bases under
the Exchange Act. In addition, the order suggested that the
Plaintiffs will face challenges in establishing loss causation due
to their reliance on short seller reports. The order further
dismissed the Securities Act claims.
In the SACC, the Plaintiffs renew only their claims under the
Exchange Act and Rule 10b-5 against Skillz and four of its current
or former corporate officers. They aver that the Defendants made
false and misleading statements and/or failed to disclose material
facts that fall into four categories: (1) the Defendants
misrepresented the state of download rates for Skillz's most
popular and profitable games; (2) the Defendants publicly reported
metrics that painted an overly rosy picture of Skillz's paid user
engagement and failed to capture accurately the company's revenue
model; (3) the Defendants overstated the availability of
"synchronous" games on the Skillz platform; and (4) the Defendants
failed to disclose that user engagement and growth was
"attributable to aggressive and uneconomic spending on paid user
incentives," the Defendants have again moved to dismiss the SACC in
its entirety.
The Plaintiffs present four categories of averred misleading
statements of fact they claim give rise to Section 10(b), Rule
10b-5, and Section 20(a) liability. The Defendants argue the
Plaintiffs have still failed to establish falsity, scienter, or
loss causation with respect to any of them. Judge Seeborg holds
that each of these categories is inadequately pleaded as false or
misleading.
First, the Plaintiffs aver that the Defendants misled investors by
failing to disclose that the download rates of Skillz's top games
were declining in the second half of 2020 and the first quarter of
2021.
Assuming Skillz relied on both increasing total downloads and
converting non-paying users to paying users, Judge Seeborg finds
that the Defendants' statement would suggest that the first half of
that plan had been successful. These averments, in short, do not
sufficiently plead the necessary element of falsity. Even if the
Plaintiffs were able to plead falsity, their scienter pleadings
would still fall short. The fact that Skillz's corporate officers
generally had access to internal metrics does not support a "strong
inference" of scienter, nor does Defendant Paradise's response to
an investor in which Plaintiffs allege he dodged a question
regarding game downloads.
The loss causation pleadings fare no better. Even assuming the
Report can be considered a corrective disclosure, the Plaintiff's
loss causation theory is undercut by the fact that, as the SACC
states and then attempts to explain away, Skillz's stock price
dipped but then rebounded in the days following the Report's
release. Thus, the Plaintiffs fail to plead adequately that the
Defendants' statements regarding download rates were false or
misleading.
The Plaintiffs next argue that Defendants made misleading
disclosures in 2020 and 2021 as to Skillz's metrics on user
engagement and revenue generation.
Notwithstanding Defendants' seemingly inconsistent statements about
the metrics the Plaintiffs identify, Judge Seeborg finds that the
SACC does not plead adequately that these statements were false or
misleading. None of the statements the Plaintiffs cite suggest
there was a one-to-one correlation between increased MAU and
increased revenue. Rather, at the end of the day, it was critical
to convert more users to paying users.
The Plaintiffs further argue that Defendants overstated the Skillz
platform's ability to offer synchronous games.
While the Plaintiffs now elaborate on the difficulty of developing
synchronous games and provide examples of popular synchronous games
available on other platforms, Judge Seeborg says these additional
averments have little to do with the Defendants' alleged false
statements. In addition to its inadequate showing of falsity, the
SACC's showing of loss causation as to these statements is undercut
by the stock price rebound that occurred shortly after the release
of the Eagle Eye Report, another short seller report that
Plaintiffs claim to be the relevant corrective disclosure.
Finally, the Plaintiffs argue that the Defendants' statements
regarding the platform's "extraordinary user engagement" were
misleading because they failed to disclose that this engagement was
driven not by Skillz's superior matchmaking ability, or the amount
of games on its platform, but rather was attributable to aggressive
and uneconomic spending on paid user incentives known as 'Bonus
Cash.'
While the SACC rearranges the pieces of this argument from the
prior complaint, Judge Seeborg holds that they still form the same
shape. As the prior order held, statements such as touting a
'stickier, more engaging, and continuously improving' user
experience and a 'vibrant and growing ecosystem' are non-actionable
puffery. Nothing in the SACC warrants revisiting this conclusion.
Even if user engagement was buoyed by the Defendants' cash
incentives, the Plaintiffs have not shown that these statements
were so directly contradictory to the truth that they can give rise
to an actionable omission. Thus, the Plaintiffs have not adequately
pleaded falsity with respect to these statements. Even if they did,
they would struggle to plead loss causation for the same reasons
explored above regarding the Wolfpack Report and the corresponding
stock price rebound.
Judge Seeborg concludes that the Plaintiffs have failed to plead
adequately their claims under Section 10(b) and Rule 10b-5 for any
of the categories of alleged false or misleading statements
discussed above. Accordingly, their Section 20(a) claim fails as
well. The motion to dismiss is therefore granted, without leave to
amend. A separate judgment will be entered.
A full-text copy of the Court's March 1, 2023 Order is available at
https://tinyurl.com/yckrcshu from Leagle.com.
SUMMIT UTILITIES: Overcharges Arkansas Residents for Gas Bills
--------------------------------------------------------------
Kelly Mehorter reports that a proposed class action alleges Summit
Utilities Inc. and Summit Utilities Arkansas, Inc. have charged
Arkansas consumers excessive prices for their monthly gas bills.
The 10-page lawsuit says that after Summit purchased certain assets
of CenterPoint Energy Resources Corp. (CERC) for its natural gas
utility business in April 2021, it promised consumers that there
would be a "seamless transition" from CERC to Summit "with no
disruption of customer and supplier plans and expectations."
However, since January 2023, hundreds of consumers have complained
that their monthly payments for natural gas and services from
Summit have doubled, tripled and even quadrupled in price, the case
claims.
According to the complaint, CERC assisted Summit during a one-year
transition period, providing support in areas such as gas supply,
safety, training, engineering, customer operations, supply chain,
finance and accounting until December 2022. The filing argues that
since being left to its own devices, Summit has failed to
appropriately bill Arkansas customers for its utility gas
services.
"Summit claims the significant up-charged bills are the result of
its transition from CERC's computer system to Summit's systems,
which resulted in Summit sending 'estimated bills' because there
was a possibility of 'different level of billing' of its
customers," the suit states, adding that Summit has also blamed
"enormous" price increases on the rising cost of gas, the pandemic,
winter storms and the war in Ukraine.
The lawsuit further claims that Summit fails to credit customers
for monthly payments made directly to the company or through
autopay, and it has allegedly failed to notify or obtain consent
from consumers before enrolling them in its autopay program and
extracting money from their accounts.
The plaintiff, an Arkansas consumer, says his monthly gas bills
have doubled in price since January of this year, even though his
household's natural gas consumption has been reduced considerably.
The lawsuit looks to cover anyone in Arkansas who, since January 1,
2022, has had an account with Summit for the provision of natural
gas and received monthly bills from the company or its predecessor.
[GN]
SVB FINANCIAL: Faces Class Action Over Securities Violations
------------------------------------------------------------
SVB Financial Group and top executives have been named in a federal
lawsuit amid the collapse of Silicon Valley Bank, the largest bank
failure since the 2008 financial crisis.
A shareholder from Wisconsin, who says he lost about $12,000, is
named as a plaintiff in a federal lawsuit seeking class action
status against SVB who announced a $1.8 billion loss on the sale of
securities on March 8.
The lawsuit against SVB Financial Group, CEO Greg Becker and CFO
Daniel Beck was filed in the U.S. district court for the Northern
district of California. It is looking for damages to be awarded to
people like Chandra Vanipenta who said he invested in SVB between
June 16, 2021, and March 10, 2023.
"$12,000 is a lot of money," Chandra Vanipenta told ABC News.
Vanipenta, 51, is the father of two children and works in the
software industry and said he had done his homework and read
several financial reports about SVP, prior to investing. He said
the company sounded solid and none of the financial reports
mentioned warnings from the Federal Reserve about potential
interest rate hikes.
"There was no indication of any risk," Vanipenta said.
Vanipenta said the rapidly falling share price took him totally off
guard, and that he lost every penny of $12,000 dollars in SVP
shares he bought through his online brokerage account.
He said he bought the shares when the share price was over $200 a
share.
"I never thought that it (the share price) would go to zero! And so
suddenly," he said.
The lawsuit states that annual reports for 2020 through 2022,
"understated the risks posed to the company by not disclosing that
likely interest rate hikes, as outlined by the Fed, had the
potential to cause irrevocable damage to the company."
The lawsuit adds that Becker and Beck "intended to deceive
Plaintiff and other members of the Class, or in the alternative,
acted with reckless disregard for the truth when they failed to
ascertain and disclose the true facts in the statements made by
them … to members of the investing public . . ."
"I feel bad. I should have sold earlier," Vanipenta said.
Vanipenta said when he learned his once valuable shares were worth
nothing, he contacted a law firm to help him. Vanipenta's lawyer,
Laurence Paul Rosen, would not comment on the "pending
litigation."
A partner from a New York based law firm, Levi & Korsinsky, LLP,
told ABC News that they plan to file a separate class action
lawsuit imminently against SVB.
"We are extremely interested in this, and are looking into it. We
will probably be filing our own case," Adam M. Apton, a partner in
the firm, told ABC News.
ABC News reached out to SVB for comment but have not yet received a
response.[GN]
TARGET CORP: Kahn Class Suit Transferred to District of Minnesota
-----------------------------------------------------------------
In the case, YORAM KAHN, individually and on behalf of all others
similarly situated, Plaintiff v. TARGET CORPORATION, Defendant,
Case No. 22 C 4178 (N.D. Ill.), Judge Ronald A. Guzman of the U.S.
District Court for the Northern District of Illinois, Eastern
Division, grants the Defendant's motion to transfer the case to the
U.S. District Court for the District of Minnesota.
Before the Court is the Defendant's motion to transfer the case to
the District of Minnesota under 28 U.S.C. Section 1404(a) or in the
alternative to dismiss the complaint under Federal Rule of Civil
Procedure 12(b)(6).
Kahn filed the putative class action against Target for consumer
fraud. He alleges that he purchased two kinds of Ritz crackers at a
Target store in Niles, Illinois, for which the shelf price was
advertised as 30 cents less than what he paid at checkout. He
further alleges that nationwide, Target frequently falsely
advertises one price for certain merchandise on its shelf signs and
displays only to charge a higher price at checkout and that it has
been fined by at least two state agencies for charging higher
prices than it had advertised.
In his complaint, the Plaintiff asserts claims for violation of the
following: the Illinois Consumer Fraud and Deceptive Business
Practices Act, 815 ILCS 505/1 (Count I) and the Illinois Uniform
Deceptive Trade Practices Act, 815 ILCS 510/2 (Count II), on behalf
of a class of persons who purchased merchandise from a Target store
in Illinois and paid higher prices than what was advertised on the
shelf; the consumer-protection laws of Illinois and approximately
thirty other states with "similar laws" (Count III), on behalf of a
class of persons who purchased merchandise from a Target store in
those states and paid higher prices than what was advertised on the
shelf; and the Uniform Deceptive Trade Practices Act (Count IV), on
behalf of a class of persons who purchased merchandise from a
Target store in Illinois or any of nearly fifteen other states with
"similar" UDTPA laws and paid higher prices than what was
advertised on the shelf. In Count V, the Plaintiff pleads in the
alternative that Target was unjustly enriched and asserts the claim
on behalf of a nationwide class of persons who purchased
merchandise from a Target store in the United States and paid
higher prices than what was advertised on the shelf.
Target, which is incorporated and has its principal place of
business in Minnesota, moves to transfer the action to the District
of Minnesota under 28 U.S.C. Section 1404(a) and in the alternative
to dismiss the action under Federal Rule of Civil Procedure
12(b)(6).
Judge Guzman explains that district courts may transfer a civil
action for the convenience of parties and witnesses, in the
interest of justice, to any other district or division where it
might have been brought. Transfer is proper under Section 1404(a)
when (1) venue is proper in the transferor district; (2) venue is
proper in the transferee district; (3) the transfer will serve the
convenience of the parties and witnesses; and (4) the transfer will
serve the interests of justice.
Judge Guzman concludes that the convenience factors and the
interests-of-justice factors strongly favor Minnesota; therefore,
he transfers the case to the District of Minnesota. In light of the
transfer, he does not reach the Defendant's motion in the
alternative to dismiss. He says that matter is for the transferee
court. Likewise, Judge Guzman terminates the Defendant's pending
motion to deny class certification and the Plaintiff's motion to
strike the motion to deny certification. They may be renewed before
the transferee court.
The Clerk of Court is directed to effectuate the transfer
forthwith. All pending motions are terminated. Civil case
transferred and terminated on the Court's docket.
A full-text copy of the Court's March 1, 2023 Memorandum Opinion &
Order is available at https://tinyurl.com/944dpa64 from
Leagle.com.
UNION CARBIDE: Deposition Deadline & Close of Discovery Due June 2
------------------------------------------------------------------
In the class action lawsuit captioned as LEE ANN SOMMERVILLE, et
al., v. UNION CARBIDE CORPORATION, Case No. 2:19-cv-00878
(S.D.W.Va.), the Hon. Judge Joseph R. Goodwin entered a fourth
amended scheduling order as follows:
Expert disclosure by opposing party: Mar. 24, 2023
Expert disclosure for rebuttal
purposes: Apr. 14,2023
Deposition deadline and close of
discovery: Jun. 2, 2023
Filing of Daubert motions and any
motion to certify a class: Jun. 9, 2023
Responses to Daubert motions/
opposition to class certification: Jul. 6, 2023
Replies in support of Daubert/
class certification: Jul. 20, 2023
Filing of dispositive motions: Aug. 18, 2023
Responses to dispositive motions: Sept. 1, 2023
Reply to response to dispositive
motion: Sept. 8, 2023
Settlement meeting deadline: Oct. 5, 2023
Union Carbide Corp. is an American chemical corporation wholly
owned subsidiary by Dow Chemical Company.
A copy of the Court's order dated March 6, 2023 is available from
PacerMonitor.com at https://bit.ly/3yFh0Ci at no extra charge.[CC]
UNITED BEHAVIORAL: Meridian Seeks to Certify Class of Providers
---------------------------------------------------------------
In the class action lawsuit captioned as Meridian Treatment Center,
et al. v. United Behavioral Health, Inc., Case No.
4:19-cv-05721-JSW (N.D. Cal.), the Plaintiffs ask the Court to
enter an order:
1. certifying the proposed Class defined as:
"Any provider with an unreimbursed or under-reimbursed
mental health / substance use disorder claim denied by
United Behavioral Health using the Guidelines for dates
of treatment between May 22, 2011 and January 31, 2019
for those individuals with healthcare insurance plans not
subject to ERISA."
2. appointing them as representatives of the Class;
and
3. appointing their counsel, Arnall Golden Gregory, LLP, as
class counsel for the Class, as well as any other relief
that this Court deems appropriate and proper.
Since the Plaintiffs and the Class seek reimbursement of denied
claims through damages, that are easily ascertainable, this Class
faces none of the damages problems seen in Wit, where in many
cases, services that were denied had never been rendered. The
damages to Plaintiffs and the putative class are subject to common
proof. As Plaintiffs claims are all common law, contract or
quasi-contract claims, the beneficiaries' Plans themselves are
irrelevant beyond what was stated by UBH's agents during those
calls where the IBAAG scripts was read to Plaintiffs and putative
class members and allow for common proof for damages calculations,
the lawsuit says.
A copy of the Plaintiffs' motion to certify class dated Mar. 7,
2023 is available from PacerMonitor.com at https://bit.ly/3lkKt1z
at no extra charge.[CC]
The Plaintiffs are represented by:
Matthew M. Lavin, Esq.
Aaron R. Modiano, Esq.
ARNALL GOLDEN GREGORY LLP
2100 Pennsylvania Ave. NW, Suite 350S
Washington, DC 20037
Telephone: (202) 677-4030
Facsimile: (202) 677-4031
E-mail: matt.lavin@agg.com
aaron.modiano@agg.com
- and -
David M. Lilienstein, Esq.
Katie J. Spielman, Esq.
DL LAW GROUP
345 Franklin St.
San Francisco, CA 94102
Telephone: (415) 678-5050
Facsimile: (415) 358-8484
E-mail: david@dllawgroup.com
katie@dllawgroup.com
UNITED HEALTHCARE: Class Cert. Briefing Filings Denied as Moot
--------------------------------------------------------------
In the class action lawsuit captioned as FRANTZ SAMSON,
individually and on behalf of others similarly situated, v.
UNITEDHEALTHCARE SERVICES, INC., Case No. 2:19-cv-00175-MJP (W.D.
Wash.), the Hon. Judge Marsha J. Pechman entered an order that the
Parties' joint motion regarding the briefing of class certification
and filings under seal is denied as moot.
United Healthcare was founded in 1974. The company's line of
business includes providing hospital, medical, and other health
services.
A copy of the Court's order dated Mar. 7, 2023 is available from
PacerMonitor.com at https://bit.ly/3mXYvXk at no extra charge.[CC]
UNITED PARCEL: April 7 Class Cert. Bid Filing Extension Sought
--------------------------------------------------------------
In the class action lawsuit captioned as JUSTIN BAKER, on behalf of
himself and all others similarly situated, v. UNITED PARCEL
SERVICE, INC., a Delaware Corporation, and UNITED PARCEL SERVICE,
INC., an Ohio corporation, Case No. 2:21-cv-00114-TOR (E.D. Wash.),
the Plaintiff and Defendants jointly move to extend the deadlines
for class certification briefing set by the Court in its Partial
Scheduling Order.
The Parties seek a three-week extension of all deadlines related to
class certification briefing to allow sufficient time to complete
certain discovery prior to Plaintiff moving for class
certification.
Accordingly, the parties respectfully request the Court grant the
instant motion and extend the existing class certification briefing
schedule as follows:
Event Prior Deadline New Deadline
Motion for Class Mar. 17, 2023 Apr. 7, 2023
Certification
Opposition to Class Apr. 21, 2023 May 12, 2023
Certification
Reply May 12, 2023 Jun. 2, 2023
Pursuant to the Court's Partial Scheduling Order, the Plaintiff's
motion for class 7 certification is due on or before March 17,
2023, Defendants' opposition to class certification is due on or
before April 21, 2023, and Plaintiff's reply is due on or before
May 12, 2023.
United Parcel is an American multinational shipping & receiving and
supply chain management company.
A copy of the Parties' motion dated Mar. 7, 2023 is available from
PacerMonitor.com at https://bit.ly/3ZVQBfP at no extra charge.[CC]
The Plaintiff is represented by:
Michael J. Scimone, Esq.
Ryan Cowdin, Esq.
OUTTEN & GOLDEN LLP
685 Third Avenue, 25th Floor
New York, NY 10017
Telephone: (212) 245-1000
Facsimile: (646) 509-2060
E-mail: mscimone@outtengolden.com
rcowdin@outtengolden.com
- and -
Thomas G. Jarrard, Esq.
LAW OFFICE OF THOMAS G. JARRARD, PLLC
1020 N. Washington St.
Spokane, WA 99201
Telephone: (425) 239-7290
E-mail: tjarrard@att.net
- and -
Matthew Z. Crotty, Esq.
RIVERSIDE LAW GROUP PLLC
905 W. Riverside Ave., Suite 404
Spokane, WA 99201
Telephone: (509) 850-7011
E-mail: mzc@riverside-law.com
- and -
R. Joseph Barton, Esq.
BARTON & DOWNES LLP
1633 Connecticut Ave. NW, Suite 200
Washington D.C. 20009
Telephone: (202) 734-7046
E-mail: jbarton@bartondownes.com
- and -
Peter Romer-Friedman, Esq.
PETER ROMER-FRIEDMAN LAW PLLC
1629 K Street, NW, Suite 300
Washington, DC 20006
Telephone: (718) 938-6132
E-mail: peter@pfg-law.com
- and -
Robert D Friedman, Esq.
GUPTA WESSLER PLLC
2001 K Street NW, Suite 850
Washington, DC 20006
Telephone: (914) 588-4713
E-mail: robert@guptawessler.com
The Defendants are represented by:
Naomi G. Beer, Esq.
GREENBERG TAURIG, LLP
1144 15 th Street, Suite 3300
Denver, CO 80202
Telephone: (303) 572-6500
Facsimile: (303) 572-6540
E-mail: beern@gtlaw.com
- and -
Sally W. Hameling, Esq.
Jacob M. Knutson, Esq.
JEFFERS, DANIELSON, SONN
& AYLWARD, P.S.
2600 Chester Kimm Road
P.O Box 1688
Wenatchee, WA 98807
Telephone: (509) 662-5685
Facsimile: (509) 662-2452
E-mail: sallyh@jdsalaw.com
jacobk@jdslaw.com
WALKME LTD: Continues to Defend Labor Class Suit in California
--------------------------------------------------------------
WalkMe Ltd. disclosed in its Form 20-F Report for the fiscal year
ending December 31, 2021 filed with the Securities and Exchange
Commission on March 14, 2023, that the Company continues to defend
itself from a labor class suit in California.
On October 21, 2022, a former employee filed a putative class
action in the Superior Court for the City and County of San
Francisco, based on claims that she was misclassified as an exempt
employee and that the Company failed to properly reimburse for
business expenses, failed to pay the proper rate of pay for paid
sick leave, and other claims related to the payment of commissions
and derivative of the misclassification claim.
On December 16, 2022, the plaintiff filed a First Amended
Complaint, adding a cause of action for civil penalties under
California's Private Attorneys General Act (California Labor Code
Section 2698, et. seq.) seeking to recover civil penalties on
behalf of herself, other WalkMe employees, and the State of
California, for alleged violations of California's Labor Code
violations. The suit seeks monetary and non-monetary damages,
including punitive damages, as well as disgorgement of profits,
penalties, interest, and attorneys' fees on behalf of plaintiff and
others similarly situated.
The Company filed its Answer on January 19, 2023.
Although this proceeding is at preliminary stages, the Company
believes this lawsuit is without merit and intends to vigorously
contest these claims.
WalkMe -- https://www.walkme.com/ -- provides a digital adoption
platform to let organizations measure, drive, and act to maximize
their digital transformation.[BN]
WEST VIRGINIA: Court Dismisses Jacques v. Daughrety of USP Hazelton
-------------------------------------------------------------------
In the case, PATRICK JACQUES, Plaintiff v. CO DAUGHRETY, Property
Officer USP Hazelton, Defendant, Civil Action No. 3:22-CV-31 (GROH)
(N.D. West Va.), Judge Gina M. Groh of the U.S. District Court for
the Northern District of West Virginia, Martinsburg:
a. grants the Defendant's Motion to Dismiss;
b. denies as moot the Plaintiff's Motions for injunctive
relief; and
c. dismisses without prejudice the Plaintiff's Complaint.
The matter came before the Court for consideration of the Report
and Recommendation ("R&R") of U.S. Magistrate Judge Robert W.
Trumble. Pursuant to the Local Rules, the civil action was referred
to Judge Trumble for submission of a proposed R&R. Magistrate Judge
Trumble issued an R&R on Dec. 27, 2022. In the R&R, Judge Trumble
recommends that the Defendant's Motion to Dismiss be granted, the
Plaintiff's complaint be dismissed without prejudice, and the
Plaintiff's motions to certify class action and motions for
injunctive relief be denied.
Objections to Magistrate Judge Trumble's R&R were due within
fourteen plus three days of the Plaintiff being served with a copy
of the same. Service was accepted by the pro se Plaintiff on Jan.
9, 2023. After allowing additional time for transit in the mail,
Judge Groh finds that the deadline for the Plaintiff to submit
objections to the R&R has passed. No objections have been filed.
Accordingly, Judge Groh reviews the R&R for clear error.
Upon careful review of the R&R, Judge Groh opines that Magistrate
Judge Trumble's R&R should be, and is, adopted for the reasons more
fully stated therein. Accordingly, the Defendant's Motion to
Dismiss is granted. The Plaintiff's Motions for injunctive relief
are denied as moot. Further, the Plaintiff's Complaint is dismissed
without prejudice. The Clerk of Court is directed to remove the
Civil Action from the Court's active docket.
The Clerk of Court is further directed to transmit copies of the
Order to all counsel of record herein and to mail a copy to the
Plaintiff by certified mail, return receipt requested, at his last
known address as reflected on the docket sheet.
A full-text copy of the Court's March 1, 2023 Order is available at
https://tinyurl.com/dau69ty2 from Leagle.com.
WESTMINSTER MGMT: Md. App. Reverses Entry of Judgment in Smith Suit
-------------------------------------------------------------------
In the case, TENAE SMITH, ET AL. v. WESTMINSTER MANAGEMENT, LLC, ET
AL., Case No. 2508, September Term 2019 (Md. App.), the Appellate
Court of Maryland reverses the entry of judgment of the Circuit
Court for Baltimore City in favor of Westminster Management, LLC,
and JK2 Westminster, LLC.
More than 45 years ago, the Supreme Court of Maryland expressed
concerns about the likelihood of successful overreaching on the
part of the landlord and of coerced adhesion on the part of the
tenant" in the context of residential leases. The Maryland General
Assembly has enacted several statutes, codified as title 8 of the
Real Property Article, in an effort to provide some degree of
protection to tenants while still permitting landlords expedited
procedures to evict tenants who fail to pay their rent or otherwise
breach their lease agreements.
Among the issues presented in this factually and procedurally
complex case are the proper meanings of the terms "rent" and
"costs" in Md. Code, Real Prop. Section 8-208, which prohibits
landlords from including or enforcing certain provisions in
residential leases; and Real Prop. Section 8-401, which establishes
an expedited process by which landlords can evict tenants who fail
to pay their rent.
Tenae Smith, Howard Smith, Simone Ryer, Dechonne McBride, and
Louvinia Sneed appeal from a judgment of the circuit court entered
in favor of Westminster and JK2. In their briefs, the parties raise
13 issues, which the Appellate Court has consolidated into two:
1. Did the circuit court err when it granted Westminster's
cross-motion for summary judgment?
2. Did the circuit court err when it denied appellants' second
motion for class certification?
Tenae Smith was a tenant at the Dutch Village Apartments in
Baltimore City from 2009 through at least May 19, 2019. Howard
Smith was a tenant at the Carroll Park Apartments in Baltimore
County from 2007 to July 2018. Simone Ryer was a tenant at the
Whispering Woods Apartments in Baltimore County from December 2016
through December 2017. Dechonne McBride was a tenant at Whispering
Woods from December 2014 through at least May 19, 2019. Finally,
Louvinia Sneed was a tenant at the Pleasantview Townhomes in
Baltimore City from October 2011 through February 2019. These
properties, as well as several other residential rental properties
in Maryland, have been managed by JK2 and then Westminster. Neither
company has an ownership interest in these properties.
When a tenant fails to make their rent payment on time, and among
other remedies, a landlord may file a summary ejectment action in
the District Court of Maryland pursuant to Md. Code, Real Prop.
Section 8-401. Westminster frequently utilized summary ejectment
proceedings when its tenants fell behind in their rent. Beginning
on June 1, 2014, Westminster had a contract with eWrit Filings, LLC
which provided that eWrit was Westminster's sole and exclusive
Agent with regard to the preparation, filing, and prosecution of
summary ejectment actions in Maryland.
All of the Appellants signed written lease agreements with
Westminster. In addition to setting out the lease term, the annual
rent, and the fixed monthly charge, the lease agreement between Ms.
Ryer and Westminster contained a number of standard provisions that
appear in all of the lease agreements between Westminster and the
Appellants.
The Appellants assert that these lease provisions are inconsistent
with Maryland law, have been and continue to be interpreted and
applied by Westminster in ways that violate Maryland law, or both.
As a result, according to the Appellants, Westminster has charged
excessive and illegal fees for the late payment of rent throughout
its multi-family rental properties in Maryland in situations in
which tenants fail to pay their rent in full on a timely basis.
Based on these factual assertions, the Appellants contend that
Westminster breached its contracts with them and violated the
Maryland Consumer Protection Act (Md. Code, Com. Law Sections
13-101-501); the Maryland Consumer Debt Collection Act (Com. Law
Sections 14-201-204); and various provisions of title 8 of the Real
Property Article. In addition to damages, they assert that they are
entitled to injunctive and declaratory relief. Finally, they
contend that they have alleged an adequate factual basis to support
their request for class action certification. Westminster agrees
with none of this.
The Appellants filed their initial complaint on Sept. 29, 2017. The
complaint named two plaintiffs, Ms. Tenae Smith and Mr. Howard
Smith, and, as defendants, Westminster, Dutch Village, LLC, and
Carroll Park Holdings, LLC. In very brief summary, the complaint
alleged that (1) Ms. Smith was a resident of the Dutch Village
Apartments in Baltimore City; (2) Mr. Smith resided at the Carroll
Park apartments in Baltimore County; (3) the Dutch Village
Apartments were owned by Dutch Village, LLC; (4) the Carroll Park
Apartments were owned by Carroll Park Holdings, LLC; and (5)
Westminster was the manager of both properties.
The complaint set out claims based on Westminster's alleged
violations of Real Prop. Section 8-208, the Maryland Consumer Debt
Collection Act, and the Maryland Consumer Protection Act, as well
as claims for restitution, unjust enrichment, and breach of
contract. In addition, the Plaintiffs sought declaratory and
injunctive relief and class action certification.
Westminster filed a notice of removal to the United States District
Court for the District of Maryland, which remanded the case back to
the circuit court a few months later. It then filed a motion to
dismiss the complaint, which was denied as moot because the
Appellants had filed an amended complaint. Westminster filed a
motion to dismiss the amended complaint that is also not in the
extract. It was granted in part and denied in part after a hearing
by the circuit court on July 23, 2018.
On Nov. 11, 2018, Mr. Smith and Ms. Smith filed a motion for class
action certification and related relief. Before the court ruled on
the motion, Mr. Smith and Ms. Smith, now joined by Ms. Ryer, Ms.
McBride, and Ms. Sneed, filed a second amended complaint. The
complaint alleged that Ms. Ryer and Ms. McBride were residents of
the Whispering Woods Townhomes in Baltimore County, which was owned
by Whispering Woods #299 Limited Partnership and Whispering Woods
#250, LLC; and that Ms. Sneed was a resident at Pleasantview
Townhomes in Baltimore City, which was owned by Pleasantview, LLC.
The Defendants named in the complaint were Westminster and the
owners of the apartment and townhouse properties where the
Plaintiffs resided, i.e., Carroll Park Holdings, LLC, Dutch
Village, LLC, Pleasantview, LLC, Whispering Woods #299 Limited
Partnership, and Whispering Woods #250 Limited Partnership. The
Appellants alleged that Westminster was the property manager for
each of these developments.
The causes of action pled in the second amended complaint were the
same as those asserted in the original complaint. On Jan. 19, 2019,
the Appellants filed a revised motion for class certification. In
the motion, they sought certification of "a class to include each
Westminster tenant harmed by defendants' violations." On April 23,
2019, and after a hearing, the circuit court issued a detailed
written memorandum opinion and order that denied the revised motion
for class certification.
On May 15, 2019, the Appellants filed a third amended complaint and
a second motion for class certification in order to address the
concerns expressed by the court in its April 23, 2019 order. They
also requested that the circuit court hold a de novo hearing on
their second motion for class certification. In an order dated July
29, 2019, and without holding a hearing, the circuit court denied
the motion.
After the circuit court denied their second motion for class
certification, the Appellants filed a motion for summary judgment.
Westminster responded with its own cross-motion for summary
judgment. After a hearing, the circuit court denied the Appellants'
motion and granted Westminster's.
The Appellants filed a timely notice of appeal. On Sept. 7, 2021,
and after briefing and oral argument, the Appellate Court issued an
order inviting the parties to file supplemental briefs to address
two decisions of the Supreme Court of Maryland that were filed
after oral argument: Chavis v. Blibaum & Associates, P. A., 476 Md.
534 (2021), and Nationstar Mortgage LLC v. Donna Kemp, 476 Md. 149
(2021). Both parties filed supplemental briefs.
In the present case, the Appellate Court has concluded that the
Appellants presented viable claims pursuant to Real Prop. Section
8-208 as well as viable claims for breach of contract, violations
of the Maryland Consumer Debt Collection Act, and violations of the
Maryland Consumer Protection Act. Thus, the legal landscape
confronting the circuit court has changed significantly.
Additionally, resolving the Appellants' unjust enrichment claim on
a class basis poses none of the proof problems that were present in
Cutler v. Wal-Mart.
For these reasons, and consistent with the approach taken by the
Court in Chavis v. Blibaum & Associates, 476 Md. 534, 575 (2021),
the Appellants may file a new motion for class certification on
remand. If they do so, the circuit court will treat it as an
initial motion for class certification and will hold a hearing on
the motion if any party requests one.
In conclusion, the Appellate Court holds that the circuit court
erred when it granted Westminster's motion for summary judgment and
when it denied the Appellants' second motion for class action
certification for the reasons articulated by the court. It reverses
the judgment of the circuit court and remands the case for further
proceedings consistent with its Opinion.
A full-text copy of the Court's March 3, 2023 Opinion is available
at https://tinyurl.com/9aa6mwhy from Leagle.com.
YANFENG US: $990K Class Settlement in Dover Suit Wins Final Nod
---------------------------------------------------------------
In the case, JASON DOVER, et al., Plaintiffs v. YANFENG US
AUTOMOTIVE INTERIOR SYSTEMS I LLC, et al., Defendants, Case No.
2:20-CV-11643-TGB-DRG (E.D. Mich.), Judge Terrence G. Berg of the
U.S. District Court for the Eastern District of Michigan, Southern
Division, grants:
a. the Plaintiffs' Unopposed Motion for Final Approval of a
Class Action Settlement Agreement; and
b. the class counsel's motion for attorney's fees and
litigation expenses.
Before the Court is the Plaintiffs' Unopposed Motion for Final
Approval of a Class Action Settlement Agreement. The Plaintiffs
also seek attorney's fees, reimbursement of expenses, and approval
of incentive awards for the three named Plaintiffs, Jason Dover,
Eric Simpson, and Steven C. Leggett. The Court held a fairness
hearing on these motions on Feb. 22, 2023 to determine whether the
settlement agreement should be given final approval.
The Plaintiffs sued several 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.
At the motion to dismiss stage, the Court allowed the Plaintiffs to
proceed with their Complaint—though not on their theory that
Defendants had breached a duty of prudence by failing to prevent
excessive record-keeping fees or on their theory that the
Defendants breached any duties of loyalty. Additionally, based on
concessions by the Plaintiffs' counsel at oral argument, the Court
limited the liability period to on or after Jan. 1, 2018.
Following a mediation and other negotiations in early 2022, the
parties achieved a settlement resolving their claims and defenses
and submitted the terms of that settlement to the Court for
preliminary approval. On Oct. 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 Jan. 1,
2018 through Oct. 13, 2022.
The Court also approved Angeion Group as the Settlement
Administrator responsible for carrying out the duties set forth in
the Settlement Agreement, as well as a proposed settlement notice
to class members and a plan for mailing that notice to the class
members.
Under the proposed settlement, Defendants agree to pay $990,000 to
a common fund for payment of claims, attorney's fees, and expenses.
The agreement contemplates the following payment allocations:
first, attorney's fees in the amount of $330,000, or 33.33%, and
expenses not to exceed $50,000, as approved by the Court; second,
incentive awards of up to $10,000 for each of the three named
plaintiffs; third, payment to each class member under the proposed
allocation plan.
The Defendants have also agreed to certain forms of non-monetary
relief, including that members of the Plan's Investment Committee
will: follow the guidelines in the Investment Committee Policy
regarding the frequency of meetings; review reports from the
investment advisor regarding performance of the investment funds
offered under the Plan on a quarterly basis; and participate in
training programs on fiduciary responsibilities.
Under the proposed allocation plan, the Settlement Administrator
will calculate the sum of a class member's quarterly balances at
the end of each full quarter in the Class Period, beginning with
the balance on March 31, 2018 and ending with the balance on Sept.
30, 2022. The Administrator will then sum all the balances and
allocate to each class member a share of the net settlement in
proportion to the sum of that class member's balance as compared to
the sum of the balance for all class members. If the pro-rated
share is less than $10, it will be removed from the calculation and
not paid. The Settlement Agreement contemplates that any portion of
the Settlement remaining after distributions to the class members,
including costs and taxes and class member payments which remain
uncashed after 180 days after distribution, will be paid back into
the Plan for the purpose of defraying administrative fees and
expenses of the Plan.
The Plaintiffs, for their part, agree to release the Defendants
from any and all claims of any nature whatsoever concerning the
Plan, and any and all claims concerning the administration of the
Plan, and any and all claims concerning the performance of
fiduciary responsibilities for the Plan. But the class members will
not be deemed to have released any claim regarding individual
eligibility for benefits under the Plan, or to contest the correct
amount of such benefit, except to the extent that such claim may
relate to or arise from the Releasees' administration of the Plan.
A Project Manager from Angeion Group attested that, by Nov. 27,
2022, Angeion Group sent notice of the settlement to 10,501 class
members via first class mail. Additionally, by Nov. 23, 2022,
Angeion Group established a toll-free phone number to provide class
members with additional information regarding the settlement, as
well as website, http://www.YanfengErisaSettlement.com.
Under the schedule set by the Court, the period for filing
objections ran until Jan. 25, 2023. To date, Angeion Group has not
received any objections to the proposed settlement.
First, Judge Berg holds that the Plaintiffs have established that
the proposed settlement agreement is fair, adequate, and
reasonable. He finds that (i) the risk of fraud and collusion is
low; (ii) the litigation is complex; (iii) while the parties have
not conducted extensive formal discovery, the Plaintiffs' counsel
undertook considerable efforts to investigate the claims prior to
filing the initial complaint; (iv) the Plaintiffs' prospects for
success on the merits are uncertain; (v) the class counsel and the
named Plaintiffs, who participated during investigation and
mediation, express endorsement of the settlement; (vi) none of the
absent class members who received notice have filed objections to
the settlement; (vii) the public interest favors resolution of the
matter by way of settlement that will secure recovery for class
members while avoiding the considerable time, expense, and
uncertainty of further litigation; and (viii) the parties retained
an independent fiduciary.
Second, having considered the briefs, exhibits, and arguments
presented in favor of final approval, Judge Berg holds that Rule
23(a)'s requirement of numerosity, commonality, typicality, and
adequate representation are satisfied. He therefore unconditionally
certifies the class for purposes of settlement.
Third, Judge Berg concludes that the percentage-of-the-fund method
is appropriate for evaluating the reasonableness of the fees. The
class counsel has filed a motion asking the Court to authorize
payments of $330,000 or 33.33% of the common fund, in attorney's
fees and $29,624.91 in litigation expenses. Accordingly, he grants
the Plaintiffs' motion with respect for attorneys' fees in the
amount of $330,000 of the common fund and their request for
reimbursement of costs in the amount of $29,624.91.
Lastly, the Plaintiffs have additionally requested "service" fees,
or incentive awards, of $10,000 from the common fund to each of the
three named plaintiffs in this action, Jason Dover, Eric Simpson,
and Steven Leggett. Judge Berg holds that an incentive award is
appropriate to recognize the efforts Dover, Leggett, and Simpson
expended on behalf of the class. Nonetheless, he finds it
appropriate to reduce the incentive awards to $7,500 per plaintiff.
While the counsel has summarized the work conducted by the
representative Plaintiffs, they have not provided documentation
showing how much time they actually expended on the case.
For the reasons he set forth, Judge Berg unconditionally certifies
the settlement class, approves the settlement, allows the
reimbursement of expenses from the common settlement fund, approves
the incentive awards to the named Plaintiffs, and grants the
motions for attorney's fees in the amount stated.
Accordingly, Judge Berg grants the Plaintiffs' motion for final
approval of the class settlement. He approves the settlement
agreement and the plan of allocation.
The Settlement Administrator will receive, disburse, and account
for the settlement proceeds as provided by the formula for
distribution of the settlement fund. After final distribution, the
class counsel will file with the Court a certification that the
settlement fund has been disbursed according to the plan, or that
funds remain undistributed, as the case may be.
An incentive award in the amount of $7,500 is approved for and may
be distributed to the named Plaintiffs, Jason Dover, Eric Simpson,
and Steven Leggett.
The 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 will receive from the common
settlement fund $330,000 for attorney's fees and $29,624.91 for
litigation expense reimbursement.
The action is dismissed with prejudice. The Court will retain
limited jurisdiction over the case for the purposes of enforcing
the terms of the settlement.
A full-text copy of the Court's March 1, 2023 Final Approval is
available at https://tinyurl.com/mrxhzdrh from Leagle.com.
YANFENG US: E.D. Michigan Dismisses Dover Suit With Prejudice
-------------------------------------------------------------
Judge Terrence G. Berg of the U.S. District Court for the Eastern
District of Michigan, Southern Division, dismisses the case, JASON
DOVER, et al., Plaintiffs v. YANFENG US AUTOMOTIVE INTERIOR SYSTEMS
I LLC, et al., Defendants, Case No. 2:20-CV-11643-TGB-DRG (E.D.
Mich.), with prejudice and without further costs.
The Order is in accordance with the Order entered granting Final
Approval of Class Action Settlement.
A full-text copy of the Court's March 1, 2023 Judgment is available
at https://tinyurl.com/2nt9ftyh from Leagle.com.
[*] Judge Reaches Decision Through Arbitration in FCRA Class Suit
-----------------------------------------------------------------
pre-employ.com reports that the judge reached this decision through
arbitration between a background check company and a class of
consumers. As such, the judge upheld the decision by the Eighth
Circuit court in a related garnishment action, which would have a
notable effect on the outcome of the FCRA case.
The judge noted that the material circumstances concerning the
motion to dismiss had changed since the July filing. At the time,
the case faced denial without prejudice. The background check
company and the plaintiff then refiled their motion. They sought to
dismiss the insurance company's request to declare it had no legal
obligation to indemnify the background check company for the
disputed arbitration award.
The judge found this to be the best decision in the litigation due
to the current dispute considered by the Eighth Circuit. At the
time, the Eighth Circuit considered a case concerning the
appropriate venue for a garnishment action. This action also
involved a complaint against the insurance company.
The background check company and the defendant moved to dismiss the
case concerning coverage by the insurance company last year. In
this movement, they argued that the insurance company could bring
up its policy defenses in the state court. They based this
reasoning on the similarities between the garnishment and coverage
cases.
However, the insurance company removed the garnishment action in a
federal court on the same day the defendant filed the motion. As a
result, the insurance company argued against dismissing the
coverage dispute. According to its argument, they did not have a
parallel state court case to involve.
A federal court granted a motion by the background check company to
remand the matter. As a result, the location for the garnishment
dispute would change. This ruling came after the court heard the
coverage dispute.
The insurance company then gained permission from the Eighth
Circuit to appeal the decision to remand the case. The judge stated
that a ruling from the appellate court could prove imminent.
Regardless of the decision made for the case, the judge emphasized
that the decision to dismiss or stay the coverage dispute could not
happen at this point. After the judge ordered not to close the
coverage dispute, the insurance company filed a motion for summary
judgment on the complaint it had filed for declaratory judgment.
The insurance company claims that it deserves this relief.
According to it, the $54 million judgment and arbitration award
comes from reckless, willful, and conscious conduct on the part of
the background check company. They also cited the background check
company's policies to support the right to relief. For example, the
background check company's policies stated it would only cover
damages resulting from negligent acts, errors, or omissions.
This case started with the worker who started the class action.
This person applied to work for a building materials manufacturer
in North Carolina. The following job offer led to a background
check from the company involved in the arbitration settlement.
Later, the worker learned that the company no longer considered him
for the position.
The worker sued the building materials manufacturer, claiming the
company violated the FCRA. This lawsuit, which settled for $2
million, claimed the company did not provide him and others with a
copy of their consumer report before taking adverse action.
However, the worker also filed a class action against the
background check company. This lawsuit went to arbitration and
settled for $54 million.
How this case ends remains unknown. However, these cases show the
importance of following FCRA requirements when obtaining consumer
reports. The best way to ensure you follow these requirements is to
partner with a trustworthy background check company.[GN]
[^] 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.
*********
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