/raid1/www/Hosts/bankrupt/CAR_Public/230328.mbx
C L A S S A C T I O N R E P O R T E R
Tuesday, March 28, 2023, Vol. 25, No. 63
Headlines
3M CO: Charleston City Sues Over Contaminated Wastewater
3M COMPANY: AFFFs Contain Toxic PFAS, Seefried Class Suit Alleges
ALASKA AIRLINES: W.D. Washington Refuses to Remand Krueger Suit
ALPHABET INC: AMI Sues Over Federal Securities' Violations
AMAZON.COM INC: Faces Perez Class Suit Over Biometric Information
AMERICAN UNIVERSITY: Renewed Bid to Dismiss Qureshi Suit Denied
ATHENEX INC: Continues to Defend Consolidated Securities Class Suit
ATI PHYSICAL: Dismissal Bid of Amended Complaint Remains Pending
ATI PHYSICAL: Faces Robinson Putative Class Suit
AUTO SERVICES: Davila Sues Over Failure to Pay Overtime Wages
BENNETT WALSH: Downplays COVID-19 Risk, Ragoonanan Class Suit Says
BIRD GLOBAL INC: Continues to Defend Arias Class Suit in California
BIRD GLOBAL INC: Continues to Defend Cain Class Suit in California
BLACK SHEEP ENTERPRISE: Toro Files ADA Suit in S.D. New York
BLOOM ENERGY: Administrative Bid to File Under Seal Tossed
BLUEPRINT LIGHTING: Bradshaw Sues Over Blind-Inaccessible Website
BNT FURNITURE INC: Hernandez Files ADA Suit in S.D. New York
BP EXPLORATION: Wins Summary Judgment Bid; Isom Claims Dismissed
BRIAN KEMP: Hogan Loses Bid to Certify Class
BRIGHTHOUSE LIFE: Martin Must File Class Cert. Bid by Sept. 1
BUMBU RUM: Faces Golston Suit Over Mislabeled Rum Products
CARDIOVASCULAR ASSOCIATES: Lee Files Suit in S.D. Alabama
CCL LABEL: Miller Sues to Recover Untimely Paid Wages
CEREBRAL INC: Johnson Sues Over Unlawful Disclosure of Information
CEREBRAL INC: Pittinger Sues Over Data Security Incident
CEREBRAL INC: Sued Over Unlawful Disclosure of Customers' Info
CHICAGO TRANSIT AUTHORITY: Strickland Sues Over Vaccine Policy
CONIFER REVENUE: Morales Suit Removed to C.D. California
CRC ED TREATMENT: Faces Castillo Wage-and-Hour Suit in Calif.
CREATORS AGENCY: Influencers Sued Over Cryptocurrency Scheme
CREDIT SUISSE: Turner Sues Over Exchange Act Violation
CRYOPORT SYSTEMS: Fails to Pay Minimum & OT Wages, Saldana Alleges
CS HOTEL: Faces Gomez Suit Over Alleged Workplace Harassment
DASHCORPS INC: Fails to Pay Proper Wages, Blake Suit Alleges
DAVES ARMY & NAVY: Hwang Files ADA Suit in E.D. New York
DC HEALTH BENEFIT: Suhr Files Suit in D. Columbia
DECOR-WARE INTERNATIONAL: Cromitie Files ADA Suit in S.D. New York
DESTINATION XL: Underpays Manual Workers, Nikolakopoulos Alleges
DFO LLC: Faces Bui Suit Over Unlawful Labor Practices
EASTMAN KODAK: Tang Class Suit Concluded
EXEL INC: Faces Pickett Suit Over Criminal History Screening Policy
EXTREME MOTOR: Fails to Pay Managers' OT Wages Under FLSA
FIRE DEPARTMENT COFFEE: Crumwell Files ADA Suit in S.D. New York
FISHER PACKAGING: Miller Files ADA Suit in W.D. New York
FLOOR AND DECOR: Martinez Sues Over Failure to Pay Weekly Basis
FREIGHT SALES: Cromitie Files ADA Suit in S.D. New York
GENEDX HOLDINGS: Continues to Defend Shareholder Class Suit
GENEDX HOLDINGS: Continues to Defend Stockholder Class Suit
GEO GROUP: 3 Questions in Nwauzor Certified to Wash. Supreme Ct.
GHP GROUP INC: Toro Files ADA Suit in S.D. New York
GLOBAL OBLIGORS: Cameron Files TCPA Suit in D. Utah
HOAG MEMORIAL: Discloses Patients' Medical Info, Davis Suit Alleges
IMMUNOMEDICS INC: $40MM Class Settlement to be Heard on June 15
INVENTION SUBMISSION: Calhoun's $3M Class Settlement Gets Final OK
KRUSE-WESTERN INC: Zavala Has Leave to File First Amended Complaint
LEAH DAY SPA: Nizo Suit Seeks to Recover Unpaid Minimum Wages
LINKEDIN CORP: Bids to Dismiss & Stay Discovery in Crowder Granted
LUCHARITOS CENTER: Fails to Pay Kitchen Staff's OT Wages Under FLSA
MARGARITAS CAFE: Amaya Seeks Damages for Labor Law Violations
MARSHALL HOTELS: Class Settlement in Link Suit Has Prelim. Approval
MATERNAL AND FAMILY: Chludzinski Seeks Damages for Data Breach
MDL 2801: DPP Counsel Awarded $66-Mil. in Fees in Capacitors Suit
MDL 2843: Court Denies NM AG's Bid to Intervene in FB Privacy Suit
MDL 3010: Court Grants Bid to Seal Memo in Google Advertising Suit
MERCEDES-BENZ: Forte Sues Over Vehicle's Defective Subframes
MOHAWK INDUSTRIES: $60MM Class Settlement to be Heard on May 31
N-ABLE INC: Faces Seavitt Stockholder Class Action in Delaware
NAVIENT SOLUTIONS: Proposed Class Certification Order Due March 31
NETFLIX INC: Georgia App. Affirms Dismissal of Gwinnett County Suit
NORFOLK SOUTHERN: Bucks County Sues Over Securities' Violations
O'REILLY AUTO: Class Settlement in Soto Suit Wins Final Approval
OCWEN LOAN: PHH's Bid to Enforce Final Judgment in Lee Partly OK'd
PETIT POT: Faces Faris Class Suit Over Dessert Products' False Ads
PORTOLA PHARMACEUTICALS: $4.375MM in Fees Awarded in Hayden Suit
PORTOLA PHARMACEUTICALS: Court Dismisses Hayden Suit With Prejudice
PORTOLA PHARMACEUTICALS: Plan of Allocation in Hayden Suit OK'd
REALPAGE INC: Saloman Suit Seeks Damages for Antitrust Violations
REGAL CAPITAL: Petromanolakis Sues Over Unsolicited Phone Calls
RESIDEO TECHNOLOGIES: $1.6MM Settlement to be Heard on June 7
ROBINHOOD MARKETS: Court Dismisses Amended Data Security Suit
ROCKET COMPANIES: Court Narrows Claims in Shupe Securities Suit
SAINT-GOBAIN PERFORMANCE: Baker May File 3rd Amended Master Suit
SAMSUNG ELECTRONICS: Denial of Arbitration Bid in White Suit Upheld
SANTA FE WAREHOUSE: Fails to Pay Proper Wages, Bolanos Alleges
SELECT MEDICAL: Fails to Pay Proper Wages, Marcy Suit Alleges
SEQUOIA BENEFITS: 9th Cir. Affirms Dismissal of Winsor ERISA Suit
SOLARWINDS CORP: $26MM Class Settlement to be Heard on July 28
STAR TRIBUNE: Minnesota Court Refuses to Dismiss Feldman VPPA Suit
STUPP BROS: Conditional Class Cert Bid Filing Extended to June 5
THAI GREENLEAF: E.D. New York Grants Chen's Bid to Amend Complaint
THREE S&J FAMILY: Castano Seeks to Recover Unpaid Minimum, OT Wages
TRADER JOE'S: Shausmanov Consumer Suit Transferred to S.D. Cal.
TURQUOISE HILL: Court Seeks UK's Judicial Help in Securities Suit
TURQUOISE HILL: UK Court Assistance Sought in Securities Class Suit
WEBER TREE: Fails to Pay Proper Wages, Escalona Suit Alleges
WELCH FOODS: Clevenger Suit Remanded to Orange County Super. Court
WINSTAR SERVICE: Blanco et al. Seek Unpaid Minimum and OT Wages
WORDEN CAPITAL: Fails to Pay Proper Overtime Wages, Connors Says
XCEL ENERGY: $12M Arandell & Williams Class Deal Wins Prelim. Nod
ZOLL MEDICAL: Fails to Secure Patients' Personal Info, Priddy Says
*********
3M CO: Charleston City Sues Over Contaminated Wastewater
--------------------------------------------------------
COMMISSIONERS OF PUBLIC WORKS FOR THE CITY OF CHARLESTON d/b/a
CHARLESTON WATER SYSTEM, individually and on behalf of all others
similarly situated v. THE 3M COMPANY, f/k/a Minnesota Mining and
Manufacturing Co., AGC CHEMICALS AMERICAS INC., AMEREX CORPORATION,
ARCHROMA U.S., INC., ARKEMA INC., BASF CORPORATION, individually
and as successor in interest to Ciba Inc., BUCKEYE FIRE EQUIPMENT
COMPANY, CARRIER GLOBAL CORPORATION, CHEMDESIGN PRODUCTS INC.,
CHEMGUARD, INC., CHEMICALS, INC., THE CHEMOURS COMPANY,
individually and as successor in interest to DuPont Chemical
Solutions Enterprise, THE CHEMOURS COMPANY FC, LLC, individually
and as successor in interest to DuPont Chemical Solutions
Enterprise, CLARIANT CORPORATION, individually and as successor in
interest to Sandoz Chemical Corporation, CORTEVA, INC.,
individually and as successor in interest to DuPont Chemical
Solutions Enterprise, DEEPWATER CHEMICALS, INC., DUPONT DE NEMOURS
INC., individually and as successor in interest to DuPont Chemical
Solutions Enterprise, DYNAX CORPORATION, E. I. DU PONT DE NEMOURS
AND COMPANY, individually and as successor in interest to DuPont
Chemical Solutions Enterprise, KIDDEFENWAL, INC., individually and
as successor in interest to Kidde Fire Fighting, Inc., NATION FORD
CHEMICAL COMPANY, NATIONAL FOAM, INC., TYCO FIRE PRODUCTS, LP,
individually and as successor in interest to The Ansul Company, and
JOHN DOE DEFENDANTS 1-20, Case No. 2:23-cv-01075-RMG (D.S.C., March
16, 2023) seeks to recover damages for the Defendants' negligence
and failure to warn from the foreseeable contamination of
wastewater by the use of aqueous film-forming foam (AFFF) products
that contained per- and poly-fluoroalkyl substances (PFAS),
including perfluorooctane sulfonate (PFOS) and perfluorooctanoic
acid (PFOA).
As such, Plaintiff and other Class members have incurred damages
and face the imminent, certainly impending, and substantially
heightened risk of harm related to future expenses in the
investigation, testing, sampling, monitoring, assessing, reducing,
and reporting of PFAS (contained in Defendants' AFFF/Component
Products) that have contaminated Plaintiff and other Class members'
wastewater, biosolids, other residual products (such as reuse
water), and treatment facilities.
The Plaintiff is a publicly owned treatment works (POTW), which
provides both wastewater and drinking water services to Charleston,
Berkeley, and Dorchester counties. Moreover, Plaintiff and all
other POTWs similarly situated are now or will face the imminent,
certainly impending, and substantially heightened risk of harm of
future expenses related to the design, construction, modification,
operation, and maintenance of systems to treat and reduce and/or
eliminate PFAS (contained in Defendants' AFFF/Component Products)
that have contaminated Plaintiff and other Class members'
wastewater, biosolids, other residuals (such as reuse water), and
treatment facilities.[BN]
The Plaintiff is represented by:
Mark J. Dearman, Esq.
ROBBINS GELLER RUDMAN & DOWD LLP
225 NE Mizner Boulevard, Suite 720
Boca Raton, FL 33432
Telephone: (561) 750-3000
Facsimile: (561) 750-3364 (fax)
E-mail: mdearman@rgrdlaw.com
dantullis@rgrdlaw.com
nbrito@rgrdlaw.com
- and -
F. Paul Calamita, Esq.
AQUALAW PLC
6 South 5th Street
Richmond, VA 23219
Telephone: (804)716-9021
Facsimile: (804) 716-9022
E-mail: paul@aqualaw.com
- and -
Andrew Croner, Esq.
Patrick Lanciotti, Esq.
Nicholas Mindicino, Esq.
NAPOLI SHKOLNIK
360 Lexington Avenue, 11th Fl.
New York, NY 10017
Telephone: (212) 397-1000
Email: acroner@napolilaw.com
planciotti@napolilaw.com
nmindicino@napolilaw.com
- and -
Paul J. Napoli, Esq.
1302 Avenida Ponce de León
Santurce, PR 00907
Telephone: (833) 271-4502
Email: pnapoli@nsprlaw.com
3M COMPANY: AFFFs Contain Toxic PFAS, Seefried Class Suit Alleges
-----------------------------------------------------------------
BRADLEY SEEFRIED, v. 3M COMPANY, f/k/a Minnesota Mining and
Manufacturing Company; ACG CHEMICALS AMERICAS, INC.; AMEREX
CORPORATION; ARCHROMA US, INC.; ARKEMA, INC.; BASF CORPORATION;
BUCKEYE FIRE EQUIPMENT COMPANY; CARRIER GLOBAL CORPORATION;
CHEMDESIGN PRODUCTS INC.; CHEMGUARD, INC.; CHEMICALS, INC.;
CLARIANT CORPORATION; CORTEVA, INC.; CHUBB FIRE, LTD; 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 P.L.C., INC.; NATION FORD CHEMICAL
COMPANY; NATIONAL FOAM, INC., a/k/a Chubb National Foam; THE
CHEMOURS COMPANY; THE CHEMOURS COMPANY FC, LLC; TYCO FIRE PRODUCTS,
LP; UNITED TECHNOLOGIES CORPORATION; UTC FIRE & SECURITIES AMERICAS
CORPORATION, INC., f/n/a GE Interlogix, Inc., Case No.
2:23-cv-01103-RMG (D.S.C., Mar. 17, 2023) alleges that 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, aqueous film-forming foams (AFFF) with
knowledge that it contained highly toxic and bio persistent per-
and polyfluoroalkyl substances (PFAS), which would expose end users
of the product to the risks associated with PFAS.
The Defendants allegedly 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 are highly toxic
and carcinogenic chemicals. PFAS binds to proteins in the blood of
humans exposed to the material and remains and persists over long
periods of time. The Defendants' PFAS-containing AFFF products were
used by the Plaintiff Bradley Seefried in their intended manner,
without significant change in the products' condition. The
Plaintiff Bradley Seefried's consumption, inhalation and/or dermal
absorption of PFAS from Defendant's AFFF products caused the
Plaintiff to develop the serious medical conditions and
complications alleged herein, the Plaintiff contends, says the
suit.
The Plaintiff seek to recover compensatory and punitive damages
arising out of the permanent and significant damages sustained as a
direct result of exposure to Defendants' AFFF products at various
locations during the course of the Plaintiff Bradley Seefried's
training and firefighting activities. The Plaintiff further seek
injunctive, equitable, and declaratory relief arising from the
same.
The Plaintiff regularly used, and was thereby directly exposed to,
AFFF in training and to extinguish active fires during his working
career as a civilian firefighter. He was diagnosed with prostate
cancer as a result of exposure to Defendants' AFFF products, and
brings this action due to personal injuries sustained as a result
of exposure to Defendants AFFF containing PFAS, the suit further
asserts.
3M manufactured, marketed, and sold AFFF from the 1960s to the
early 2000s.[BN]
The Plaintiff is represented by:
Charles R. Houssiere, III
Michael R. Null, Esq.
HOUSSIERE, DURANT & HOUSSIERE, LLP
1990 Post Oak Blvd., Suite 800
Houston, TX 77056-3812
Telephone: (713) 626-3700
Facsimile: (713) 626-3709
E-mail: choussiere@hdhtex.com
ALASKA AIRLINES: W.D. Washington Refuses to Remand Krueger Suit
---------------------------------------------------------------
Judge John C. Coughenour of the U.S. District Court for the Western
District of Washington, Seattle, denies the Plaintiff's motion to
remand the lawsuit titled CRYSTAL KRUEGER, an individual on behalf
of herself and others similarly situated, Plaintiff v. ALASKA
AIRLINES, INC., Defendant, Case No. C22-1777-JCC (W.D. Wash.).
Plaintiff Crystal Krueger filed a class action in King County
Superior Court against Defendant Alaska Airlines, Inc., alleging
that the Defendant's "practices and policies" deny flight
attendants statutorily required meal periods, rest breaks, minimum
wage, and overtime wage pay. The Plaintiff seeks compensatory
damages, double damages, prejudgment interest, costs, and
attorney's fees.
The Defendant removed the case to federal court, citing the Class
Action Fairness Act ("CAFA"). The Plaintiff moves to remand,
arguing that the Defendant did not establish the requisite
jurisdictional amount in controversy and, in the alternative, that
the action falls within a CAFA jurisdiction exception.
In this lawsuit, the parties dispute the amount-in-controversy. The
Defendant estimates the proposed class consists of roughly 2,700
Alaska Airlines flight attendants, who, over the period from Nov.
9, 2019, to the present, were simultaneously based at SeaTac and
are Washington residents. The Defendant assumes a violation rate of
100% and estimates that the class members made $36.18 per hour.
The Plaintiff argues that the Defendant's violation and hourly wage
assumptions are unreasonable. The Defendant's notice of removal
estimated that the total amount in controversy was $14,976,000.
This amount only included calculations for the meal period, rest
period, and minimum wage claims. The Defendant did not provide
exact equations as support for its estimation, but to require it to
do so would impose "a heavy burden" and contravene "the text and
understanding of CAFA." Instead, the Defendant relied on the Labor
Relations Managing Director's calculation of an hourly wage based
on the "total pay" and "trip for pay" system the Defendant uses.
Therefore, Judge Coughenour holds that the Defendant's assumption
of hourly wages is both reasonable and plausible.
Regarding the violation rate, the Defendant's estimate relies on
the assumption that the class members suffer at least one of each
type of violation per week, which in turn relies on an assumption
that class members work at least one qualifying shift per week. The
Defendant provides evidence that the class members work, on
average, 11 days each month.
Judge Coughenour finds that the conclusion is consistent with both
the Defendant's policies and facts alleged in the Plaintiff's
complaint, which state that a flight attendant must take 48 hours
off duty within every 7-day period, which means the 11 days must be
spread out over the course of at least three weeks. Accordingly,
Judge Coughenour holds the Defendant's assumed violation rate is
both reasonable and plausible.
Even if an action satisfies CAFA's initial jurisdictional
requirements, district courts must still decline jurisdiction if
one of two statutory exceptions apply. The first exception (the
so-called "home state" exception) applies when "greater than
two-thirds of the members of all proposed plaintiff classes in the
aggregate are citizens of the State in which the action was
originally filed." The second, "local controversy" exception,
applies when at least two-thirds of the proposed plaintiff class
members in the aggregate, and the primary defendants, are citizens
of the State in which the action was originally filed.
The parties disagree as to whether the Plaintiff's proposed class
includes enough Washington citizens to meet either exception. The
Plaintiff's complaint defines class membership as contingent upon
Washington residency. She states that the overwhelming majority of
SeaTac-based flight attendants reside and make their homes in
Washington, like she does.
However, the Plaintiff's own declaration describes how easy it is
for commuters to make their homes wherever they are commuting from
as opposed to Washington. Meanwhile, the Defendant identified more
than 500 class members, who use non-revenue commuter flight
transportation and of those 500 "a sampling" provided evidence that
they were not Washington citizens at the time of removal.
Judge Coughenour points out that Washington addresses and personal
relationships with other flight attendants alone do not show that,
by a preponderance of the evidence, at least or more than
two-thirds of the flight attendants in her proposed class are
Washington citizens. Therefore, Judge Coughenour holds, neither of
the CAFA jurisdictional exceptions apply.
A full-text copy of the Court's Order dated March 6, 2023, is
available at https://tinyurl.com/46psh6s3 from Leagle.com.
ALPHABET INC: AMI Sues Over Federal Securities' Violations
----------------------------------------------------------
AMI-Government Employees Provident Fund Management Company LTD.,
individually and on behalf of all others similarly situated v.
Alphabet Inc., Sundar Pichai, Ruth M. Porat, and Philipp Schindler,
Case No. 5:23-cv-01186 (N.D. Cal., March 16, 2023) seeks to recover
damages caused by the Defendants' violations of the federal
securities laws and to pursue remedies under Sections 10(b) and
20(a) of the Securities Exchange Act of 1934 and Rule 10b-5 against
the company and certain of its top officials.
On Feb 4, 2020, Alphabet filed an Annual Report on Form 10-K with
the SEC, reporting the Company's financial and operating results
for the year ended December 31, 2019 (the "2019 10-K"). In the 2019
10-K's recitation of the Company's ongoing "Legal Matters,"
Alphabet touted its purported "cooperation with federal and state
regulators in the United States, and other regulators around the
world" with respect to antitrust investigations. The Company also
stated that the "regulatory and government investigations" to which
it was "regularly subject," including those involving competition,
"could result in fines, civil or criminal penalties, or other
adverse consequences." These vague and generalized statements
failed to disclose to investors the known specific risks arising
from Alphabet's illicit anticompetitive conduct.
Allegedly, the defendants are engaged in a plan, scheme, conspiracy
and course of conduct, pursuant to which they knowingly or
recklessly engaged in acts, transactions, practices and courses of
business which operated as a fraud and deceit. They also made
various untrue statements of material facts and omitted to state
material facts necessary in order to make the statements made, in
light of the circumstances under which they were made, not
misleading; and employed devices, schemes and artifices to defraud
in connection with the purchase and sale of securities. Because of
their positions of control and authority as senior officers,
Pichai, Porat, and Schindler were able to, and did, control the
contents of the various reports, press releases and public filings
which Alphabet disseminated in the marketplace during the Class
Period concerning Alphabet's results of operations.
Alphabet is a multinational technology conglomerate holding
company. It was created through a restructuring of Google Inc. in
October 2015, at which point Alphabet became the parent company of
Google and several former Google subsidiaries. Alphabet is
headquartered in Mountain View, California and incorporated in
Delaware. The Company's Class A and Class C shares trade on the
NASDAQ under the ticker symbols "GOOGL" and "GOOG," respectively.
Alphabet's subsidiary Google is a dominant player in the field of
digital advertising, to the extent that it controls the digital
tools that every major website publisher uses to sell advertising
space on their websites. [BN]
The Plaintiff is represented by:
Jennifer Pafiti, Esq.
POMERANTZ LLP
1100 Glendon Avenue, 15th Floor
Los Angeles, CA 90024
Telephone: (310) 405-7190
E-mail: jpafiti@pomlaw.com
- and -
Jeremy A. Lieberman, Esq.
J. Alexander Hood II, Esq.
POMERANTZ LLP
600 Third Avenue, 20th Floor
New York, NY 10016
Telephone: (212) 661-1100
Facsimile: (917) 463-1044
E-mail: jalieberman@pomlaw.com
ahood@pomlaw.com
- and -
Orly Guy, Esq.
Eitan Lavie, Esq.
POMERANTZ LLP
Ariel Sharon 4, 34th Floor
Givatayim, IS 5320047
Telephone: +972 (0) 3 624 0240
Facsimile: +972 (0) 3 624 0111
Email: oguy@pomlaw.com
eitan@pomlaw.com
AMAZON.COM INC: Faces Perez Class Suit Over Biometric Information
-----------------------------------------------------------------
ALFREDO RODRIGUEZ PEREZ, on behalf of himself and all others
similarly situated, v. AMAZON.COM, INC., Case No. 1:23-cv-02251
(S.D.N.Y., Mar. 16, 2023) alleges that Amazon failed to post any
sign notifying consumers that their biometric information is being
collected, retained, converted or stored by all of its Amazon Go
stores in New York City from January 15, 2022 through March 13,
2023, in violation of the Biometric Identifier Information Law.
The Plaintiff brings this action as a proposed class action under
Rule 23 of the Federal Rules of Civil Procedure on behalf of the
following Class: "all persons who on or after January 15, 2022
through the date of judgment in this action made a purchase from
an
Amazon Go store in the City of New York that did not post a sign at
each customer entrance that complies with N.Y.C. Admin. Code
section 22-1202(a)."
On January 30, 2023, Mr. Rodriguez Perez visited the Amazon Go
Store at 80 Pine Street, New York. The Amazon Go store at 80 Pine
Street in Manhattan has the same Just Walk Out technology as the
other Amazon Go stores in New York City, including same types of
computer vision, deep learning algorithms, and sensor fusion that
Amazon applies at its other Amazon Go stores and in the cloud.
When Mr. Rodriguez Perez entered the 80 Pine Street Amazon Go
store, he did not see any sign at any entrance that notified
customers that customers' biometric identifier information is being
collected, retained, converted, or stored. In particular, he did
not see the 8.5 x 11-inch sign that the Department of Consumer and
Worker Protection has made available to commercial establishments
like Amazon to comply with section 22-1202(a). Upon entering the
store, Amazon's computer vision identified Mr. Rodriguez Perez
through the shape and size of his body and then tracked every
single movement that Mr. Rodriguez Perez made in the store to
identify where he went, what items he removed from the
shelves, and what items he put back on the shelves. If Mr.
Rodriguez Perez had seen the standard 8.5 x 11-inch DCWP-authorized
sign at the entrance of the 80 Pine Street Amazon Go store
informing him that the store "collects, retains, converts, stores,
or shares customers' biometric identifier information", he would
not have entered the store and he would not have made a purchase at
the 80 Pine Street Amazon Go store. Other than when he visited the
80 Pine Street Amazon Go store on January 30, 2023, Mr. Rodriguez
Perez has never entered an Amazon Go store, says the suit.
Although on March 14, 2023 Amazon placed a sign at the 80 Pine
Street store -- and other Amazon Go stores in New York City --
stating that the store collects biometric identifier information,
that sign does not comply with N.Y.C. Admin. Code. The sign is not
"clear and conspicuous," because it's designed to avoid attracting
the attention of customers entering the store.
Mr. Rodriguez Perez is a resident of Kings County, New York, and
has been an Amazon customer for the past decade.
Amazon.com is a publicly-traded company headquartered in
Seattle.[BN]
The Plaintiff is represented by:
Peter Romer-Friedman, Esq.
PETER ROMER-FRIEDMAN LAW PLLC
1629 K Street NW, Suite 300
Washington, DC 20006
Telephone: (202) 355-6364
E-mail: peter@prf-law.com
- and -
Christopher K. Leung, Esq.
POLLOCK COHEN LLP
111 Broadway, Suite 1804
New York, NY 10006
Telephone: (917) 985-3995
E-mail: chris@pollockcohen.com
- and -
Albert Fox Cahn, Esq.
David Siffert, Esq.
SURVEILLANCE TECHNOLOGY
OVERSIGHT PROJECT
40 Rector Street, 9th Floor
New York, NY 10006
Telephone: (212) 518-7573
E-mail: albert@stopspying.org
david@stopspying.org
AMERICAN UNIVERSITY: Renewed Bid to Dismiss Qureshi Suit Denied
---------------------------------------------------------------
In the case, MAAZ QURESHI, MATTHEW RABINOWITZ, and DANISH ARIF,
individually and on behalf of others similarly situated, Plaintiffs
v. AMERICAN UNIVERSITY, Defendant, Case Nos. 20-cv-1141 (CRC),
20-cv-1454 (CRC), 20-cv-1555 (CRC) (D.D.C.), Judge Christopher R.
Cooper of the U.S. District Court for the District of Columbia
denies the Defendant's renewed motion to dismiss the Consolidated
Amended Complaint.
The lawsuit concerns a group of American University undergraduate
students who sued their school for a partial refund of tuition and
fees they paid for the spring 2020 semester, which was disrupted by
the onset of the COVID-19 pandemic.
In the spring of 2020, Plaintiffs Maaz Qureshi, Matthew Rabinowitz,
and Danish Arif were enrolled as undergraduate students at American
University, a private university in Washington, D.C. They paid
tuition for the semester, plus mandatory fees including an
"activity fee," a "sports center fee," a "technology fee," and a
"Metro U-Pass fee."
The Plaintiffs allege that American, through its website, marketing
material, advertisements, course catalog, syllabi, and other
documents, promised and sold them on-campus instruction and the
on-campus experience as key reasons that a student should choose to
attend American. In response to the COVID-19 pandemic, however,
American shifted its instruction to a fully online format beginning
in March 2020, continuing through the end of the spring 2020
semester, but it refused to refund any portion of the tuition and
fees the Plaintiffs and other students paid at the outset of the
semester, before the pandemic began.
In May and June 2020, the Plaintiffs filed three separate class
action complaints against American based on the switch to remote
learning. The Court consolidated the Plaintiffs' cases, see Minute
Order (July 3, 2020), and they filed an amended complaint alleging
causes of action for breach of contract, unjust enrichment,
conversion, and unlawful and deceptive trade practices in violation
of the D.C. Consumer Protection Procedures Act ("CPPA").
American moved to dismiss the complaint, and the Court granted the
motion as to all of the Plaintiffs' claims. It concluded, with
respect to the breach of contract claim, that American impliedly
promised, at most, to make a good-faith effort to provide on-campus
education, while retaining the right to deviate from the
traditional model if they reasonably deemed it necessary to do so.
Based on the conclusion that American made no express or implied
representation that it would provide uninterrupted in-person
education regardless of the circumstances -- including a public
health emergency arising from a once-in-a-century global pandemic
-- the Court also dismissed the Plaintiffs' CPPA claim for failing
"to allege that American made any false or misleading
representation or omission about what it would provide in exchange
for tuition" or fees.
The Plaintiffs appealed, and the D.C. Circuit affirmed in part and
reversed in part. Specifically, the Circuit reversed the Court's
dismissal of the Plaintiffs' breach of contract claims relating to
tuition and to two of American's student fees, reversed the
dismissal of the Plaintiffs' unjust enrichment claims, affirmed the
dismissal of the conversion claim, and reversed the dismissal of
the CPPA claim.
With respect to the breach of contract claim, the court held that
the Plaintiffs adequately allege the Universities breached an
implied-in-fact contract to provide in-person education in exchange
for tuition. Assessing American's marketing and communications
materials, combined with its historic practice of providing
on-campus instruction to students who pay the tuition associated
with traditional on-campus -- rather than online -- education, the
court held that a reasonable person would have assumed that the
Universities intended to bind themselves to providing in-person
education in exchange for retaining the Plaintiffs' entire tuition
payments for traditional on-campus degree programs.
As for the Plaintiffs' CPPA claim, the Circuit held that the
Court's dismissal rested on its conclusion that the Plaintiffs
failed to allege that the University was bound by any
implied-in-fact agreements relating to any commitments made to
provide campus-based programs and facilities throughout the
semester, and so the Circuit accordingly reversed the dismissal of
that claim and remanded for this Court to reconsider American's
motion to dismiss the CPPA claim in light of its analysis of the
Plaintiffs' breach-of-contract claims. In particular, the Circuit
noted that, on remand, the Court may be required to consider
American's alternative argument that the University is not subject
to the CPPA under an exception from CPPA liability for nonprofits
if the claim is based on membership services or training or
credentialing activities. The court expressed no opinion on these
questions.
After remand, American filed a renewed partial motion to dismiss
focused on the Plaintiffs' CPPA claim.
In its renewed motion to dismiss the Plaintiffs' CPPA claim,
American reiterates two arguments first raised in its 2020 motion
to dismiss. First, American contends that the CPPA does not apply
to claims raised against it because the statute includes a
carve-out for actions brought against a nonprofit organization
based on membership in such organization, membership services,
training or credentialing activities, or any other transaction,
interaction, or dispute not arising from the purchase or sale of
consumer goods or services in the ordinary course of business.
Second, American contends that, even if the CPPA applies to it, the
Plaintiffs have not alleged an unfair or deceptive practice because
they have not alleged that the University's representations about
its offerings were misleading or false at the time they were made.
Judge Cooper denies the Defendant's Renewed Motion to Dismiss.
As to American's first argument, Judge Cooper concludes that the
Plaintiffs' claims do not fall within the limited nonprofit
carve-out in Section 28-3905(k)(5). He believes that, had the D.C.
Council intended the CPPA's nonprofit carve-out to cover
undergraduate educational activities of colleges and universities,
it would have done so explicitly rather than through the terms
"training" or "credentialing." Coupled with the text of the
statute, the fact that the Council was on notice that educational
institutions also would fall within the amended CPPA, absent an
exception, suggests that the omission of "educational activities"
from Section 28-3905(k)(5) was intentional.
Although the CPPA's definition of "nonprofit organization" is not
limited to non-profit corporations, Judge Cooper finds the
Nonprofit Corporation Act instructive insofar as it suggests that
students paying tuition and fees for undergraduate education fall
outside the intuitive definition of "membership services."
Undergraduate education remains a personal consumer service under
the CPPA's broad definition of the term.
As to American's second argument, Judge Cooper concludes that the
Plaintiffs have alleged material misrepresentations sufficient to
support at CPPA claim, at least at the motion to dismiss stage.
This is not to say that the Plaintiffs will ultimately prevail on
the merits. But at least at this stage of the case, the Plaintiffs'
complaint adequately alleges representations made by American that
a reasonable person would have understood to bind it to providing
in-person education in exchange for retaining the Plaintiffs'
entire tuition payments for traditional on-campus degree programs.
A full-text copy of the Court's March 7, 2023 Memorandum Opinion &
Order is available at https://tinyurl.com/3b2bwm6j from
Leagle.com.
ATHENEX INC: Continues to Defend Consolidated Securities Class Suit
-------------------------------------------------------------------
Athenex Inc. disclosed in its Form 10-Q Report for the fiscal
period ending December 31, 2022 filed with the Securities and
Exchange Commission on March 20, 2023, that the Company continues
to defend itself from the consolidated securities suit in the U.S.
District Court for the Western District of New York.
Two purported securities class action lawsuits were filed in the
U.S. District Court for the Western District of New York on March
3, 2021 and March 22, 2021, respectively, against the Company and
certain members of its management team seeking to recover damages
for alleged violations of Sections 10(b) and 20(a) of the
Securities Exchange Act of 1934.
The complaints generally allege that between August 7, 2019 and
February 26, 2021 (the purported class period), the Company and the
individual defendants made materially false and misleading
statements regarding the Company's business in connection with the
Company's development of Oral Paclitaxel for the treatment of
metastatic breast cancer and the likelihood of FDA approval, and
that the plaintiffs suffered losses when the Company's stock price
dropped after its announcement on February 26, 2021 regarding
receipt of the CRL.
The complaints seek class certification, damages, fees, costs, and
expenses.
On August 5, 2021, the Court consolidated the two actions and
appointed a lead plaintiff and lead counsel. Pursuant to a
stipulated scheduling order, the lead plaintiff filed an amended
complaint on November 19, 2021.
Defendants filed their motion to dismiss on January 25, 2022.
Plaintiffs filed their opposition to that motion on March 28, 2022
and the defendants filed their reply brief on May 20, 2022.
The motion to dismiss is now fully briefed and awaits the Court's
decision. The Company and the individual defendants believe that
the claims in the consolidated lawsuits are without merit, and the
Company has not recorded a liability related to these shareholder
class actions as the risk of loss is remote.
The Company and the individual defendants intend to vigorously
defend against these claims but there can be no assurances as to
the outcome.
Athenex, Inc. is a biopharmaceutical company based in New York.
ATI PHYSICAL: Dismissal Bid of Amended Complaint Remains Pending
----------------------------------------------------------------
ATI Physical Therapy Inc. disclosed in its Form 10-K Report for the
fiscal period ending December 31, 2022 filed with the Securities
and Exchange Commission on March 16, 2023, that the defendants’
motions to dismiss a consolidated amended complaint in is pending
in the U.S. District Court for the Northern District of Illinois.
On August 16, 2021, two purported ATI stockholders, Kevin Burbige
and Ziyang Nie, filed a putative class action complaint in the U.S.
District Court for the Northern District of Illinois against ATI,
Labeed Diab, Joe Jordan, and Drew McKnight (collectively, the "ATI
Individual Defendants"), and Joshua Pack, Marc Furstein, Leslee
Cowen, Aaron Hood, Carmen Policy, Rakefet Russak-Aminoach, and
Sunil Gulati (collectively, the "FVAC Defendants").
On October 7, 2021, another purported ATI stockholder, City of
Melbourne Firefighters' Retirement System ("City of Melbourne"),
filed a nearly identical putative class action complaint in the
U.S. District Court for the Northern District of Illinois against
ATI, the ATI Individual Defendants, and the FVAC Defendants.
On November 18, 2021, the court consolidated the cases and
appointed The Phoenix Insurance Company Ltd. and The Phoenix
Pension & Provident Funds as lead plaintiffs (together, "Lead
Plaintiffs").
On February 8, 2022, Lead Plaintiffs filed a consolidated amended
complaint against ATI, the ATI Individual Defendants, and the FVAC
Defendants, which asserts claims against (i) ATI and the ATI
Individual Defendants under Section 10(b) of the Exchange Act; (ii)
the ATI Individual Defendants under Section 20(a) of the Exchange
Act (in connection with the Section 10(b) claim); (iii) all
defendants under Section 14(a) of the Exchange Act; and (iv) the
ATI Individual Defendants and the FVAC Defendants under Section
20(a) of the Exchange Act (in connection with the Section 14(a)
claim). Lead Plaintiffs purport to assert these claims on behalf of
those ATI stockholders who purchased or otherwise acquired their
ATI shares between February 22, 2021 and October 19, 2021,
inclusive, and/or held FVAC Class A common shares as of May 24,
2021 and were eligible to vote at FVAC’s June 15, 2021 special
meeting.
The consolidated amended complaint generally alleges that the proxy
materials for the FVAC/ATI merger, as well as other ATI disclosures
(including the press release announcing ATI's financial results for
the first quarter of 2021), were false and misleading (and, thus,
in violation of Sections 10(b) and 14(a) of the Exchange Act)
because they failed to disclose that: (i) ATI was experiencing
attrition among its physical therapists; (ii) ATI faced increasing
competition for clinicians in the labor market; (iii) as a result,
ATI faced difficulty retaining therapists and incurred increased
labor costs; (iv) also as a result, ATI would open fewer new
clinics; and (v) also as a result, the defendants' positive
statements about ATI's business, operations, and prospects were
materially misleading and/or lacked a reasonable basis. Lead
Plaintiffs, on behalf of themselves and the putative class, seek
money damages in an unspecified amount and costs and expenses,
including attorneys' and experts' fees.
On April 11, 2022, defendants filed motions to dismiss the
consolidated amended complaint, which were fully briefed as of July
25, 2022 and remain pending.
The Company has determined that potential liabilities related to
the consolidated amended complaint are not considered probable or
reasonably estimable at this time.
ATI Physical Therapy is an American provider of physical therapy
services based in Bolingbrook, Illinois. Founded by exercise
physiologist Greg Steil in 1996 as one clinic in Willowbrook,
Illinois, ATI has more than 860 locations in the United States.
ATI PHYSICAL: Faces Robinson Putative Class Suit
------------------------------------------------
ATI Physical Therapy Inc. disclosed in its Form 10-K Report for the
fiscal period ending December 31, 2022 filed with the Securities
and Exchange Commission on March 16, 2023, that the Company the
company is facing the Robinson putative class suit in the Court of
Chancery of the State of Delaware.
On February 7, 2023, another purported ATI stockholder, Wendell
Robinson, filed a putative class action complaint in the Court of
Chancery of the State of Delaware against Fortress Acquisition
Sponsor II, LLC, Andrew A. McKnight, Joshua A. Pack, Marc Furstein,
Leslee Cowen, Aaron F. Hood, Carmen A. Policy, Rakefet
Russak-Aminoach, Sunil Gulati, Daniel N. Bass, Micah B. Kaplan and
Labeed Diab.
The complaint asserts claims against: (i) Fortress Acquisition
Sponsor II, LLC, Andrew A. McKnight, Joshua A. Pack, Marc Furstein,
Leslee Cowen, Aaron F. Hood, Carmen A. Policy, Rafeket
Russak-Aminoach, Sunil Gulati, Daniel N. Bass and Micah B. Kaplan
for breach of fiduciary duty; and (ii) Labeed Diab for aiding and
abetting breach of fiduciary duty. Plaintiff's allegations
generally mirror those asserted in the federal stockholder class
action described above, and Plaintiff further alleges that the
alleged misrepresentations and omissions in the proxy materials for
the FVAC/ATI merger prevented stockholders from making a fully
informed decision on whether to approve the merger or have their
shares redeemed.
Defendants have not yet responded to the complaint.
ATI Physical Therapy is an American provider of physical therapy
services based in Bolingbrook, Illinois. Founded by exercise
physiologist Greg Steil in 1996 as one clinic in Willowbrook,
Illinois, ATI has more than 860 locations in the United States.
AUTO SERVICES: Davila Sues Over Failure to Pay Overtime Wages
-------------------------------------------------------------
Gabrielle Davila, on behalf of herself and others similarly
situated v. Auto Services Unlimited, Inc., Case No.
1:23-cv-00568-JPC (N.D. Ohio, March 17, 2023) is a collective
action against the Defendants for alleged violations of the
overtime provision of the Fair Labor Standards Act.
The Plaintiff alleges that the Defendant's operational needs
regularly require non-exempt hourly employees to work throughout
their scheduled shift without taking a 30-minute lunch break. In
such instances, Defendant still deducted 30 minutes of working time
automatically from the payroll records of the non-exempt hourly
employees, says the suit.
Auto Services Unlimited, Inc. is an Ohio corporation for profit
maintaining a principal place of business in Cuyahoga County,
Ohio.[BN]
The Plaintiff is represented by:
Christopher J. Lalak, Esq.
LALAK LLC
1991 Crocker Road Suite 600
Westlake, OH 44145
Telephone: (440) 892-3380
E-mail: clalak@employmentlawohio.com
BENNETT WALSH: Downplays COVID-19 Risk, Ragoonanan Class Suit Says
------------------------------------------------------------------
DEBRA RAGOONANAN and others similarly situated v. BENNETT WALSH,
DAVID CLINTON, VANESSA LAUZIERE, VANESSA GOSSELIN, and CELESTE
SURREIRA, Case No. 3:23-cv-30032 (D. Mass., Mar. 16, 2023) alleges
that the Defendants downplays the continuing risk of harm and rapid
spread of COVID-19 at their Home Soldiers' facility.
According to the complaint, the Soldiers' Home Defendants
undermined any protective efforts or measures that could have been
enacted. This led to the class representative involuntarily being
exposed to risks of COVID 19.
The Plaintiff also alleges that the Defendant engaged in a campaign
of callous deception, knowingly facilitating the rapid spread of
COVID throughout a health facility for elderly veterans that posed
a particular risk of danger to the veterans and the staff attending
to them, in violation to the Fourteenth Amendment of the United
States Constitution and 42 U.S.C. section 1983.
In March 2020, certain Soldiers' Home managers and supervisors,
specifically, Superintendent Bennett Walsh, former Medical Director
Dr. David Clinton, former Chief Nursing Officer Vanessa Lauziere,
former Infectious Disease Nurse Vanessa Gosselin , and former
Assistant Director of Nursing Celeste Surreira made a series of
criminally catastrophic decisions in their mishandling of the
COVID-19 virus within the Soldiers' Home that led to the slow,
agonizing, and preventable deaths of 77 veterans and the extreme
sickness of scores of employees.
The Soldiers' Home Defendants engaged in a knowing pattern of lies
and misrepresentations in a shocking attempt to cover up their own
malfeasance, the Plaintiff contends.
For example, the Soldiers' Home Defendants:
(i) considered federal and state directives to isolate infected
patients and then, without justification, rejected doing
so;
(ii) facilitated the congregation of infected and non-infected
patients for weeks following an Executive Order prohibiting
such congregation;
(iii) ordered employees to "float" between infected and non-
infected patients;
(iv) hid PPE from staff;
(v) punished staff for wearing PPE;
(vi) concealed from staff information about which veterans
and/or
staff was infected and who was not;
(vii) misrepresented the crisis to state agencies and to their
own
employees and their unions; and
(viii) lied about the number of positive cases within the
facility.
The Plaintiff seeks to redress the needless pain and suffering that
employees endured as a result of the actions and inactions of the
Soldiers' Home Defendants.
Ms. Ragoonanan is an employee of the Holyoke Soldiers' Home.
Bennett Walsh is a superintendent of Soldiers' Home. Soldiers' Home
is a state-funded health care facility that offers residential
accommodations, hospice care, and outpatient services to
veterans.[BN]
The Plaintiff is represented by:
Leonard H. Kesten, Esq.
Erica L. Brod, Esq.
Allison L. O'Connell, Esq.
BRODY, HARDOON, PERKINS & KESTEN, LLP
699 Boylston Street, 12th Floor
Boston, MA 02116
Telephone: (617) 880-7100
E-mail: lkesten@bhpklaw.com
ebrody@bhpklaw.com
aoconnell@bhpklaw.com
BIRD GLOBAL INC: Continues to Defend Arias Class Suit in California
-------------------------------------------------------------------
Bird Global Inc. disclosed in its Form 10-K Report for the fiscal
period ending December 31, 2022 filed with the Securities and
Exchange Commission on March 16, 2023, that the Company continues
to defend itself from the Arias class suit in the Central District
of California.
On August 15, 2022, a purported stockholder of the Bird Global Inc.
filed a putative class action lawsuit in the Central District of
California against the Company and its director and prior officer,
entitled MARIO ARIAS, Individually and on Behalf of All Others
Similarly Situated v. Bird Global, Inc. F/K/A Switchback II
Corporation, Travis VanderZanden, and Yibo Ling (the "ARIAS
Action").
It alleges that all defendants violated Sections 10(b) of the
Exchange Act and Rule 10b-5 promulgated thereunder by the SEC, and
that the individual defendants violated Section 20(a) of the
Exchange Act. The lawsuit seeks, among other things, damages,
attorneys' fees and costs, and such other relief as may be deemed
just and proper by the court.
Although the Company believes it has meritorious defenses to the
claims of the plaintiffs and members of the classes, and it intends
to vigorously defend against this claim, there is no guarantee that
it will prevail.
Bird Global Inc. is purportedly a micromobility company engaged in
delivering electric transportation solutions for short
distances.[BN]
BIRD GLOBAL INC: Continues to Defend Cain Class Suit in California
------------------------------------------------------------------
Bird Global Inc. disclosed in its Form 10-K Report for the fiscal
period ending December 31, 2022 filed with the Securities and
Exchange Commission on March 16, 2023, that the Company continues
to defend itself from the Cain class suit in the Central District
of California.
On December 19, 2022, another purported stockholder of the Company
filed a similar putative class action lawsuit in the Central
District of California against the Company and its director and
prior officer, entitled KAREN CAIN, Individually and on Behalf of
All Others Similarly Situated v. Bird Global, Inc. F/K/A Switchback
II Corporation, Travis VanderZanden, and Yibo Ling (the "CAIN
Action"). The ARIAS and CAIN Actions, are substantially similar,
and the complaints in both actions
It alleges that all defendants violated Sections 10(b) of the
Exchange Act and Rule 10b-5 promulgated thereunder by the SEC, and
that the individual defendants violated Section 20(a) of the
Exchange Act. The lawsuit seeks, among other things, damages,
attorneys’ fees and costs, and such other relief as may be deemed
just and proper by the court.
Although the Company believes it has meritorious defenses to the
claims of the plaintiffs and members of the classes, and it intends
to vigorously defend against this claim, there is no guarantee that
it will prevail.
Bird Global Inc. is purportedly a micromobility company engaged in
delivering electric transportation solutions for short
distances.[BN]
BLACK SHEEP ENTERPRISE: Toro Files ADA Suit in S.D. New York
------------------------------------------------------------
A class action lawsuit has been filed against Black Sheep
Enterprise, Inc. The case is styled as Andrew Toro, on behalf of
himself and all others similarly situated v. Black Sheep
Enterprise, Inc., Case No. 1:23-cv-02268 (S.D.N.Y., March 16,
2023).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Black Sheep Enterprises -- http://blacksheepent.net/--
manufactures theatrical and stage drapery.[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
BLOOM ENERGY: Administrative Bid to File Under Seal Tossed
----------------------------------------------------------
In the class action lawsuit captioned as JAMES EVERETT HUNT, et
al., v. BLOOM ENERGY CORPORATION, et al. Case No. 4:19-cv-02935-HSG
(N.D. Cal.), the Hon. Judge Haywood S. Gilliam, Jr. entered an
order denying the administrative motion to consider whether another
party's materials should be sealed.
Pursuant to Civil Local Rules 7-11 and 79-5(f), the Defendants
filed this motion to consider whether to seal Exhibit 5 and
portions of their opposition that reference the exhibit.
Exhibit 5 contains the transcript from Lead the Plaintiff James
Hunt's deposition, which was initially designated as
"Confidential." However, having reviewed the transcript, the
Plaintiffs have clarified that they do not believe these materials
should remain under seal.
Bloom Energy is a public company headquartered in San Jose,
California. It manufactures and markets solid oxide fuel cells that
produce electricity on-site.
A copy of the Court's order dated March 9, 2023 is available from
PacerMonitor.com at https://bit.ly/40nVBJI at no extra charge.[CC]
BLUEPRINT LIGHTING: Bradshaw Sues Over Blind-Inaccessible Website
-----------------------------------------------------------------
Gary Bradshaw, on behalf of himself and all others similarly
situated v. Blueprint Lighting LLC d/b/a Blueprint Lighting NYC,
Case No. 1:23-cv-02290-LGS (S.D.N.Y., March 17, 2023) alleges that
Blueprint Lighting violated the Americans with Disabilities Act for
its denial of full and equal access to its website or denial of its
goods and services.
Mr. Bradshaw seeks a permanent injunction to cause a change in
Defendant's corporate policies, practices, and procedures so that
Defendant's website will become and remain accessible to blind and
visually-impaired consumers.
According to the complaint, during Plaintiff's visits to the
Website, the last occurring on Jan 25, 2023, in an attempt to
purchase lighting and hardware items from the Defendant, the
Plaintiff encountered multiple access barriers that denied
Plaintiff a shopping experience similar to that of a sighted person
and full and equal access to the goods and services offered to the
public and made available to the public; and that denied Plaintiff
the full enjoyment of the goods, and services of the Website by
being unable to purchase lighting fixtures, hardware, and other
products available online for purchase, and to ascertain
information relating to pricing, shipping, ordering merchandise and
return and privacy policies.
Due to Defendant's failure and refusal to remove access barriers to
its website, Plaintiff and visually-impaired persons, who need
screen-readers to access websites, have been and are still being
denied equal access to Defendant's Website, and the numerous goods
and services and benefits offered to the public through the
Website.
Blueprint Lighting owns, maintains, and operates an online lighting
and hardware store with a Uniform Resource Locator address of
https://blueprintlighting.com, offering a variety of lighting
fixtures, table lamps, accessories, hardware, and more, which
should be equally available to all consumers. [BN]
The Plaintiff is represented by:
Gabriel A. Levy, Esq.
GABRIEL A. LEVY, P.C.
1129 Northern Blvd, Ste 404
Manhasset, NY 11030
Telephone: (347) 941-4715
Email: glevy@glpcfirm.com
BNT FURNITURE INC: Hernandez Files ADA Suit in S.D. New York
------------------------------------------------------------
A class action lawsuit has been filed against BNT Furniture, Inc.
The case is styled as Janelys Hernandez, on behalf of herself and
all others similarly situated v. BNT Furniture, Inc., Case No.
1:23-cv-02161 (S.D.N.Y., March 14, 2023).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
BNT Furniture, Inc. offers a collection including a range of
contemporary furniture suitable for contract or residential
projects of any size.[BN]
The Plaintiff is represented by:
Noor Abou-Saab, I, Esq.
LAW OFFICE OF NOOR A. SAAB
380 North Broadway, Suite 300
Jericho, NY 11753
Phone: (718) 740-5060
Email: noorasaablaw@gmail.com
BP EXPLORATION: Wins Summary Judgment Bid; Isom Claims Dismissed
----------------------------------------------------------------
In the case, CEDRIC ISOM v. BP EXPLORATION & PRODUCTION, SECTION: D
(5), INC., ET AL., Civil Action No. 17-4365 (E.D. La.), Judge Wendy
B. Vitter of the U.S. District Court for the Eastern District of
Louisiana:
a. grants BP's Daubert Motion to Exclude the Causation
Testimony of Plaintiff's Expert, Dr. Jerald Cook and the
Defendants' Motion for Summary Judgment; and
b. denies the Plaintiff's Motion for Admission of Plaintiffs'
Expert Opinions Because of BP Defendants' Spoliation of
Evidence of Plaintiff's Exposure.
Before the Court is a Daubert Motion to Exclude filed by Defendants
BP Exploration & Production Inc., BP America Production Co., and BP
p.l.c. Halliburton Energy Services, Inc., Transocean Holdings, LLC,
Transocean Deepwater, Inc., and Transocean Offshore Deepwater
Drilling, Inc. have joined in these motions. The Plaintiff opposes
these Motions. The Defendants have filed Replies in support of
their Motions. Also before the Court is a Motion for Admission of
the Plaintiffs' Spoliation Motion. The Defendants oppose it.
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, 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. The Plaintiff opted out of the MSA and,
accordingly, is a B3 plaintiff.
The Plaintiff filed this individual action against the Defendants
on April 30, 2017 to recover for injuries allegedly sustained as a
result of the oil spill. For approximately 20 months from 2010
until 2012, the Plaintiff worked as a beach cleanup and
decontamination worker, tasked with cleaning up oil and oil-covered
debris from the beaches and coastal areas near Gulfport, Pass
Christian, Pascagoula, Long Beach, Petit Bois Island, Ship Island,
and Horn Island, Mississippi.
The Plaintiff alleges that the Defendants' negligence and
recklessness in both causing the Gulf oil spill and subsequently
failing to properly design and implement a clean-up response caused
him to suffer myriad injuries including rash, skin irritation, skin
lesions, dermatitis, headaches, dizziness, loss of consciousness,
shortness of breath, acute bronchitis, breathing problems, and
stomach pains. He seeks to recover economic damages, personal
injury damages -- including damages for past and future medical
expenses and for pain and suffering -- punitive damages, and
attorneys' fees, costs, and expenses.
To help support his claims that exposure to the chemicals present
in the oil spilled by Defendants caused his particular health
symptoms, the Plaintiff offers the report and testimony of Dr.
Cook. Dr. Cook is a retired Navy physician with expertise
specifically as an occupational and environmental physician. His
Report is not tailored directly to the Plaintiff's claims; rather,
his generic causation Report has been utilized by numerous B3
plaintiffs, including many plaintiffs currently before the Court as
well as in other cases before other sections of it. Accordingly,
Dr. Cook's Report pertains only to general causation and not to
specific causation.
The Defendants filed the instant Motion in limine and Motion for
Summary Judgment on Jan. 23, 2023. In their Motion in limine, the
Defendants contend that Dr. Cook should be excluded from testifying
due to, inter alia, Dr. Cook's failure to identify the harmful
level of exposure capable of causing the Plaintiff's particular
injuries for each chemical that the Plaintiff alleges to have been
exposed to. Because Dr. Cook should be excluded from testifying,
the Defendants argue, the Court should grant their Motion for
Summary Judgment as the Plaintiff is unable to establish general
causation through expert testimony, a necessary requirement under
controlling Circuit precedent.
In response, the Plaintiff filed his Spoliation Motion, in which he
argues that Dr. Cook's Report and general causation opinions should
be deemed reliable and admissible under Fed. R. Evid. 702 because
of BP's alleged failure to collect exposure data on oil spill
cleanup workers. He argues that BP had an obligation to preserve
evidence that it reasonably anticipated may have been relevant to
future litigation and that BP intentionally destroyed said evidence
in bad faith.
The Defendants filed a response in opposition to the Plaintiff's
spoliation Motion, arguing that he cannot demonstrate spoliation of
evidence because there never was evidence to spoliate in the first
place. They also contend that the issue of biological monitoring of
cleanup workers is irrelevant to the reliability and admissibility
of Dr. Cook's Report. Finally, they argue that the remedy sought by
the Plaintiff -- admission of Dr. Cook's Report -- is inappropriate
and without basis.
First, Judge Vitter finds that the Court has previously considered
the June 21, 2022 version of Dr. Cook's Report offered by the
Plaintiff, finding that the Report fails to meet the Daubert
standards for reliability and helpfulness to the trier of fact. For
the same reasons set forth in detail in that Order and Reasons, she
determines that the Plaintiff has failed in his burden of
establishing the reliability and relevance of his expert's report
and finds it appropriate to grant the Defendants' Motion in limine
to exclude Dr. Cook's Report.
Next, Judge Vitter turns to the Plaintiff's Spoliation Motion.
Because she finds no merit to the Plaintiff's Motion, she denies
the Plaintiff's Motion. She finds that the chief flaw in the
Plaintiff's argument is that he does not point to any actual
evidence allegedly spoiled by the Defendant. The remedy sought by
the Plaintiff, even if he could prove spoliation, is also wholly
inappropriate.
Lastly, for these reasons, the Plaintiff lacks expert testimony on
general causation. Without expert testimony, which is required to
prove general causation, Judge Vitter says the Plaintiff has failed
to demonstrate a genuine dispute of material fact regarding his
claims that his injuries were caused by exposure to oil. Thus, the
Defendants' Motion for Summary Judgment must be granted as they are
entitled to judgment as a matter of law due to the Plaintiff's
failure to establish general causation.
The Plaintiff's claims against the Defendants are dismissed with
prejudice.
A full-text copy of the Court's March 8, 2023 Order & Reasons is
available at https://tinyurl.com/ytcwxpms from Leagle.com.
BRIAN KEMP: Hogan Loses Bid to Certify Class
--------------------------------------------
In the class action lawsuit captioned as RICKY LAMAR HOGAN, v.
BRIAN KEMP, et al, Case No. 1:22-cv-05138-AT (N.D. Ga.), the Hon.
Judge Amy Totenberg entered an order adopting the Magistrate
Judge's Final Report and Recommendation.
-- The Plaintiff's Application to Proceed in forma pauperis is
denied.
-- Additionally, the Plaintiff's motion to certify class is
denied and this action is dismissed without prejudice.
A copy of the Court's order dated March 9, 2023 is available from
PacerMonitor.com at https://bit.ly/3n0O19v at no extra charge.[CC]
BRIGHTHOUSE LIFE: Martin Must File Class Cert. Bid by Sept. 1
-------------------------------------------------------------
In the class action lawsuit captioned as LAWRENCE E. MARTIN, on
behalf of himself and all other similarly situated, v. BRIGHTHOUSE
LIFE INSURANCE COMPANY, Case No. 1:21-cv-02923-RA (S.D.N.Y.), the
Hon. Judge Ronnie Abrams entered a second amended case management
plan and scheduling order as follows:
1. All parties do not consent to conducting all further
proceedings before a United States Magistrate Judge,
including motions and trial. 28 U.S.C. section 636(c).
2. The parties have not engaged in settlement discussions.
3. This case is to be tried to a jury.
4. No additional parties may be joined after four months from
the start of fact discovery without leave of the Court.
5. No amendments to the pleadings may be made after four
months from the start of fact discovery without leave of
the Court.
6. Initial disclosures pursuant to Rule 26(a)(1) of the
Federal Rules of Civil Procedure were served on June 24,
2021.
7. The Defendant served an Answer to the Plaintiff's
Complaint on March 15, 2022.
8. The parties agree that fact discovery will take
approximately 14 months because this case presents some
unique challenges in locating older documents and
materials that may have been authored or otherwise created
by the Defendant's predecessors-in-interest.
9. The Plaintiff's Motion for Class Certification will be
filed on or before September 1, 2023.
10. The Defendant's Opposition to the Plaintiff's Motion for
Class Certification will be filed 45 days after the
opening brief is filed.
Brighthouse operates as an insurance company. The Company offers
income and fixed annuities, retirement, and health care products.
A copy of the Court's order dated March 9, 2023 is available from
PacerMonitor.com at https://bit.ly/3JUagXO at no extra charge.[CC]
BUMBU RUM: Faces Golston Suit Over Mislabeled Rum Products
----------------------------------------------------------
The class action complaint, Lamarr Golston, individually and on
behalf of all others similarly situated v. Bumbu Rum Company LLC,
Case No. 1:23-cv-00241 (W.D.N.Y., March 18, 2023) alleges false and
misleading representations of beverage manufacturer to its
consumers with its brand described as "Original Craft Rum,"
claiming that the brand is not rum because federal and identical
state regulations require this distilled spirit to be "bottled at
not less than 40 percent alcohol by volume and it is only 35
percent ABV.
Mr, Golston says that Bumbu Rum Co. misrepresented and/or omitted
the attributes and qualities of the Original Craft Rum brand, that
it was a premium rum, not a cordial or liqueur due to the amounts
of added flavoring and sweetening added nor "rum with natural
flavors," which was significantly less conspicuous and prominent
than the embossed brand name of Bumbu Rum Co.
As a result of the false and misleading representations, the
Original Craft Rum is sold at a premium price, approximately no
less than $35 per 750 mL, excluding tax and sales, higher than
similar products, represented in a non-misleading way, and higher
than it would be sold for absent the misleading representations and
omissions, says the suit.;;.
Bumbu Rum Co. LLC is a Delaware limited liability company with a
principal place of business in Highland Park, Lake County,
Illinois.[BN]
The Plaintiff is represented by:
Spencer Sheehan, Esq.
SHEEHAN & ASSOCIATES, P.C.
60 Cuttermill Rd Ste 412
Great Neck, NY 11021
Telephone: (516) 268-7080
E-mail: spencer@spencersheehan.com
CARDIOVASCULAR ASSOCIATES: Lee Files Suit in S.D. Alabama
---------------------------------------------------------
A class action lawsuit has been filed against Cardiovascular
Associates, P.C. The case is styled as Samuel Lee, on behalf of
himself and all others similarly situated v. Cardiovascular
Associates, P.C., Case No. 1:23-cv-00092 (S.D. Ala., March 15,
2023).
The nature of suit is stated as Other P.I.
Cardiovascular Associates -- https://www.cvapc.com/ -- has offered
women's heart health services to Central Alabama.[BN]
The Plaintiff is represented by:
Kristian Rasmussen, III, Esq.
MILBERG COLEMAN BRYSON PHILLIPS GROSSMAN, LLC
518 Monroe Street
Nashville, TN 37280
Phone: (205) 749-9500
Email: Krasmussen@milberg.com
CCL LABEL: Miller Sues to Recover Untimely Paid Wages
-----------------------------------------------------
Raymond Miller, individually and on behalf of all others similarly
situated v. CCL LABEL, INC.; CCL LABEL (BUFFALO), INC.; CCL
INDUSTRIES, INC., Case No. 604312/2023 (N.Y. Sup. Ct., Nassau Cty.,
March 14, 2023), is brought to recover damages for untimely wages
for the Plaintiff and his similarly situated printing press
operators, stagers, packagers, shipping coordinators, technicians,
and related, non-exempt, non-administrative positions
(collectively, "Putative Class Members") who work or have worked
for CCL Label in New York between January 1, 2016 through November
30, 2022.
The During Plaintiff's employment, Defendants required Plaintiff
and other Putative Class Members to perform at least twenty-five
percent of their time on physical work duties. The Defendants,
however, paid Plaintiff and other Putative Class Members on a
biweekly basis. The Plaintiff brings this action on behalf of
himself and all similarly situated current and former Putative
Class Members pursuant to the NYLL, says the complaint.
The Plaintiff has been employed by the Defendants as a non-exempt
worker from 1994 to the present.
The Defendants have had substantial control over Plaintiff's and
similarly situated employees' working conditions, and over the
policies and practices.[BN]
The Plaintiff is represented by:
Brian S. Schaffer, Esq.
Armando A. Ortiz, Esq.
FITAPELLI & SCHAFFER, LLP
28 Liberty Street, 30th Floor
New York, NY 10005
Phone: (212) 300-0375
CEREBRAL INC: Johnson Sues Over Unlawful Disclosure of Information
------------------------------------------------------------------
Lyndell Johnson, as an individual and on behalf of all others
similarly situated v. CEREBRAL, INC.; and DOES 1-10, Case No.
2:23-cv-01901 (C.D. Cal., March 14, 2023), is brought arising from
the Defendant's negligent failure to implement and maintain
reasonable cybersecurity procedures that resulted in the unlawful
disclosure of certain information that is regulated as protected
health information, which was discovered on January 3, 2023, in
violation of the California Consumer Privacy Act, the California
Customer Records Act, violation of the California Unfair
Competition Law, and for invasion of privacy based on the
California Constitution, Art.
In connection with its online mental health services, CEREBRAL
collects, stores, and processes sensitive personal data for
thousands of individuals, including but not limited to its
patients, employees and customers. In doing so, CEREBRAL retains
sensitive information including, but not limited to, bank account
information, health care related information, medications, test
results, health questionnaire information, treatment histories,
addresses, and social security numbers, among other things.
CEREBRAL is legally required to protect personal information from
unauthorized access, disclosure, theft, exfiltration, modification,
use, or destruction.
CEREBRAL knew that it was a prime target for hackers and/or
unauthorized third parties given the significant amount of
sensitive personal information processed through its computer data
and storage systems. CEREBRAL's knowledge is underscored by the
massive number of data breaches that have occurred in recent
years.
Despite knowing the prevalence of data breaches, CEREBRAL failed to
prioritize data security by adopting reasonable data security
measures to prevent and detect unauthorized access to its highly
sensitive systems and databases. CEREBRAL has the resources to
prevent an unlawful disclosure, but neglected to adequately invest
in data security, despite the growing number of well-publicized
breaches. CEREBRAL failed to undertake adequate analyses and
testing of its own systems, training of its own personnel, and
other data security measures as described herein to ensure
vulnerabilities were avoided or remedied and that Plaintiff's and
class members' data and sensitive personal health information were
protected.
On January 3, 2023, CEREBRAL determined that it had disclosed
certain information that may be regulated as protected health
information ("PHI") under HIPAA to certain Third Party Platforms
and some Subcontractors without having obtained HIPAA-required
assurances. CEREBRAL notified impacted individuals of the unlawful
disclosure via email sent on or around March 6, 2023. Plaintiff
received a copy of the March 6, 2023 disclosure notice via email
confirming that her personal identifying information and protected
PHI was part of the unlawful disclosure.
CEREBRAL owed a duty to Plaintiff and Class members to exercise
reasonable care in obtaining, retaining, securing, safeguarding,
deleting, and protecting the personal and medical information in
their possession from being misused by unauthorized persons such as
Meta and other unauthorized third parties.
This also included a duty to Plaintiff and Class members to design,
maintain, and test their computer systems to make sure the personal
and medical information in their possession was adequately secured
and protected; to create and implement reasonable data security
practices and procedures to protect the personal and medical
information in their possession; and to disclose if their computer
systems and data security practices were inadequate to safeguard
individuals' personal and medical information.
As a direct and proximate result of CEREBRAL's actions, Plaintiff
and class members have suffered and will continue to suffer damages
and other injuries and harm, as well as statutory damages to which
they are entitled, and increased risk of future harm, says the
complaint.
The Plaintiff is a citizen and resident of the State of California
whose personal health information was part of the unauthorized
disclosure on January 3, 2023.
CEREBRAL is a 100% online mental health platform that provides both
psychiatric and therapy services.[BN]
The Plaintiff is represented by:
Jason M. Wucetich, Esq.
Dimitrios V. Korovilas, Esq.
WUCETICH & KOROVILAS LLP
222 N. Pacific Coast Hwy., Suite 2000
El Segundo, CA 90245
Phone: (310) 335-2001
Facsimile: (310) 364-5201
Email: jason@wukolaw.com
dimitri@wukolaw.com
CEREBRAL INC: Pittinger Sues Over Data Security Incident
--------------------------------------------------------
Dawn Pittinger, individually and on behalf of all other similarly
situated v. CEREBRAL INC., a Delaware corporation, Case No.
2:23-cv-02043-DSF-JC (C.D. Cal., March 17, 2023), is brought
arising out of the recent data security incident and data breach
that was perpetrated against the the Defendant (the "Data Breach"),
which held in its possession certain personally identifiable
information ("PII") and protected health information ("PHI")
(collectively, "the Private Information") of Plaintiff and other
patients of the Defendant, the putative class members, and seeking
redress for its unlawful conduct, and asserting claims for:
negligence, negligence per se, breach of implied contract, breach
of fiduciary duty; and unjust enrichment, declaratory relief,
California Consumer Privacy Act, California Consumer Records Act,
California Unfair Competition Law, and California Invasion of
Privacy Act.
The Private Information compromised in what the Defendant refers to
as a "HIPAA Privacy Breach" in which it "recently discovered issue
related to inadvertent information sharing." In other words, the
cybercriminals intentionally targeted the Defendant for the highly
sensitive Private Information it stores on its computer network,
attacked the insufficiently secured network, then exfiltrated
highly sensitive PII and PHI. As a result, the Private Information
of Plaintiff and Class remains in the hands of those
cyber-criminals.
The Data Breach was a direct result of the Defendant's failure to
implement adequate and reasonable cyber-security procedures and
protocols necessary to protect individuals' Private Information
with which it was entrusted for either treatment or employment or
both.
The Defendant utilized poor data privacy practices, which it had
been aware of and criticized for many months before about the
dangers of using pixel technologies. They utilized this free
technology which tracked and shared the data of PII and PHI of
patients with other companies like Facebook and Google. The
Defendant revealed that after reviewing its data sharing practices,
that it determined on January 3, 2023 that it disclosed PHI to
subcontractors "without having obtained HIPAA-required
assurances."
The Plaintiff bring this class action lawsuit on behalf of
themselves and all others similarly situated to address the
Defendant's inadequate safeguarding of Class Members' Private
Information that it collected and maintained, and for failing to
provide timely and adequate notice to Plaintiff and other Class
Members that their information had been subject to the unauthorized
access of an unknown third party and including in that notice
precisely what specific types of information were accessed and
taken by cybercriminals.
The Defendant disregarded the rights of Plaintiff and Class Members
by, inter alia, intentionally, willfully, recklessly, or
negligently failing to take adequate and reasonable measures to
ensure its data systems were protected against unauthorized
intrusions; failing to disclose that it did not have adequately
robust computer systems and security practices to safeguard
Plaintiff's and Class Members' Private Information; failing to take
standard and reasonably available steps to prevent the Data Breach;
and failing to provide Plaintiff and Class Members with prompt and
full notice of the Data Breach, says the complaint.
The Plaintiff was a patient of Defendant Cerebral.
Cerebral is a startup telehealth company headquartered in
California, which has been providing mental health services
virtually throughout the U.S.[BN]
The Plaintiff is represented by:
Danielle L. Perry, Esq.
MASON LLP
5335 Wisconsin Avenue, NW, Suite 640
Washington, DC 20015
Phone: 202-429-2290
Email: dperry@masonllp.com
CEREBRAL INC: Sued Over Unlawful Disclosure of Customers' Info
--------------------------------------------------------------
In the class action lawsuit, Jane Doe, individually and on behalf
of all others similarly situated v. CEREBRAL, INC., a Delaware
corporation; and DOES 1 through 10, Case No. 2:23-cv-02021-MWF-PD
(C.D. Cal., March 17, 2023), the Plaintiff alleges that Cerebral's
negligent, reckless, and/or intentional failure to implement and
maintain adequate data protection has resulted in unlawful
disclosure of highly sensitive personal and medical information of
its customers to third parties.
According to the complaint, the unlawful disclosure was discovered
by Cerebral on or around March 1, 2023. According to Cerebral's
privacy breach notice, Cerebral determined on Jan 3, 2023 that it
had had disclosed certain information that may be regulate as
protected health information under Health Insurance Portability and
Accountability Act (HIPAA) to certain "Third-Party Platforms and
some Subcontractors without having obtained HIPAA-required
assurances."
According to Cerebral, the privacy breach stemmed from Cerebral's
use of what are called "pixels" and similar tracking technologies,
such as those made available by Google, Meta (Facebook), TikTok,
and other third parties. The Plaintiff seeks to remedy these harms
on behalf of all similarly situated individuals whose private
information was accessed and/or removed from defendant’s network
during the privacy breach.
Cerebral is a Delaware corporation with its principal place of
business in Walnut, California. Cerebral offers a telehealth
platform that gives access to monthly mental health and wellness
support, including online therapy, mental health assessments and
expert care through behavioral health coaching, talk therapy,
medication management, and personalized content. Cerebral serves
patients throughout the United States.[BN]
The Plaintiff is represented by:
Aubry Wand, Esq.
THE WAND LAW FIRM, P.C.
100 Oceangate, Suite 1200
Long Beach, CA 90802
Telephone: (310) 590-4503
E-mail: awand@wandlawfirm.com
- and -
Lori G. Feldman, Esq.
GEORGE FELDMAN MCDONALD, PLLC
102 Half Moon Bay Drive
Croton-on-Hudson, NY 10520
Telephone: (917) 983-9321
E-mail: lfeldman@4-justice.com
- and -
David J. George, Esq.
Brittany Brown, Esq.
GEORGE FELDMAN MCDONALD, PLLC
9897 Lake Worth Road, Suite 302
Lake Worth, FL 33467
Telephone: (561) 232-6002
E-mail: dgeorge@4-justice.com
bbrown@4-justice.com
CHICAGO TRANSIT AUTHORITY: Strickland Sues Over Vaccine Policy
--------------------------------------------------------------
Travis Strickland, on his own behalf and on behalf of all others
similarly situated v. Chicago Transit Authority, Case No.
1:23-cv-01634 (N.D. Ill., March 15, 2023), is brought arising under
the Civil Rights Act of 1964 and the laws of the State of Illinois,
specifically the Illinois Religious Freedom Restoration Act and the
First and Fourteenth Amendments to the United States Constitution,
and the Illinois Health Care Right of Conscience Act.
The CTA did not initially require that employees obtain a COVID-19
vaccine. Throughout most of the pandemic, the CTA allowed its
employees to continue working by encouraging safety measures, such
as masking and social distancing. The lack of a vaccine mandate
throughout most of the pandemic did not cause the CTA any undue
hardship.
On September 3, 2021, approximately 10 months after the first
vaccine was authorized, the CTA announced that all CTA employees
were required to be fully vaccinated against COVID-19. At that
time, CTA President Dorval R. Carter Jr. proclaimed that employees
had to be vaccinated in order to "help fight off these variants and
protect our loved ones and others who cannot be vaccinated." Carter
Jr. made that proclamation even though the COVID-19 vaccines were
not tested, designed, or made to prevent transmission of COVID-19.
The mandatory COVID-19 Vaccination Policy also did not take into
account the fact that individuals who recover from COVID-19 develop
antibodies or natural immunity; nor did it take into account the
efficacy of alternative measures such as face coverings, personal
protective equipment, self-monitoring and reporting of symptoms,
and/or periodic testing. The CTA's mandatory COVID-19 Vaccination
Policy was at odds with the Federal government's policy allowing
certain large employers to mandate vaccination or periodic testing
for their employees.
On September 23, 2021, Strickland completed and submitted his
request for a religious exemption/accommodation. On July 21, 2022,
the CTA denied Strickland's request for an exemption/accommodation,
claiming that the accommodation he had requested somehow infringed
on the rights of other employees and compromised workplace safety.
Despite this claim, the CTA granted exemptions/allowed
accommodations for other employees, due to their religious beliefs.
Despite this claim, the CTA allowed some unvaccinated employees to
continue working.
For months, Strickland continued to hold true to his beliefs and
refused to become vaccinated against COVID-19. Despite the CTA's
insistence that every employee had to be vaccinated against
COVID-19 in order to work for the CTA--as well as its claim that
Strickland's vaccination status violated the rights of others and
compromised workplace safety--the CTA allowed Strickland to
continue working while unvaccinated until or around November 2022.
However, in or around November 2022, the CTA threatened to
terminate Strickland's employment if he continued to refuse to
become vaccinated against COVID-19. So that he could keep his job,
Strickland became vaccinated against COVID-19 on November 15, 2022.
Doing so violated his sincerely held religious beliefs. The CTA has
never required the public to get vaccinated in order to utilize its
public transportation services. The CTA has never required its
employees to obtain vaccine boosters. The CTA has allowed other
employees to continue working even though they are not vaccinated
against COVID-19 and have not been granted an
exemption/accommodation related to the policy, says the complaint.
The Plaintiff is employed by the CTA as a Car Repairer in the Rail
Maintenance Department.
CTA is an independent governmental agency which operates in Chicago
and 35 surrounding suburbs and is the nation's second largest
public transportation system.[BN]
The Plaintiff is represented by:
Julie Herrera, Esq.
Steve Molitor, Esq.
LAW OFFICE OF JULIE O. HERRERA
159 N. Sangamon St., Ste. 200
Chicago, IL 60607
Phone: 312-479-3014
Fax: 708-843-5802
Email: jherrera@julieherreralaw.com
smolitor@julieherreralaw.com
- and -
Sorin A. Leahu, Esq.
LEAHU LAW GROUP, LLC
53 W. Jackson Blvd, Suite 1527
Chicago, IL 60604
Phone: (847)-529-7221
Email: sleahu@leahulaw.com
CONIFER REVENUE: Morales Suit Removed to C.D. California
--------------------------------------------------------
The case styled as Ryan Morales, individually and on behalf of all
others similarly situated v. Conifer Revenue Cycle Solutions, LLC,
Case No. 22STCV32911 was removed from the Los Angeles Superior
Court, to the U.S. District Court for the Central District of
California on March 16, 2023.
The District Court Clerk assigned Case No. 2:23-cv-01987 to the
proceeding.
The nature of suit is stated as Other Contract.
Conifer Revenue Cycle Solutions Inc. provides comprehensive revenue
cycle services.[BN]
The Plaintiff appears pro se.
The Defendant is represented by:
Rachel E.K. Lowe, Esq.
ALSTON AND BIRD LLP
333 South Hope Street, 16th Floor
Los Angeles, CA 90071
Phone: (213) 576-1000
Fax: (213) 576-1100
Email: rachel.lowe@alston.com
CRC ED TREATMENT: Faces Castillo Wage-and-Hour Suit in Calif.
-------------------------------------------------------------
In Sammie Rae Castillo, on behalf of herself and all others
similarly situated v. CRC ED Treatment, LLC., a Delaware Limited
Liability Company, Acadia Healthcare Company, INC., and DOES 1
through 50, Case No. 37-2023-0011333-CU-OE-CTL (Cal. Super. Ct,
March 17, 2023), Castillo claims that the defendants enforced shift
schedules, employment policies and practices and/or workload
requirements wherein Plaintiff and Non-Exempt Employees were,
amongst other statutory violations not paid all lawful wages owed;
not provided compliant rest and meal periods; not provided accurate
itemized wage statements, not paid timely wages during employment
and at termination of employment, and failed to reimburse Class
Members for the use of their personal mobile phones and vehicles
used in the performance of their duties.
The Plaintiff brings this action pursuant to certain Labor Code
sections, California Code of Regulations, Title 8, section 11040,
and any other applicable Industrial Welfare Commission Wage Orders,
seeking unpaid wages, unpaid rest and meal period compensation,
expense reimbursement, penalties and other equitable relief, and
reasonable attorneys' fees and costs.
CRC operates medical clinics in California including clinics for
treatment of eating disorders, including Montecatini Eating
Disorder Treatment Center (Montecatini), under their parent company
Acadia.[BN]
The Plaintiff is represented by:
James R. Hawkins, Esq.
Isandra Fernandez, Esq.
Lance Dacre, Esq.
JAMES HAWKINS APLC
9880 Research Drive, Suite 200
Irvine, CA 92618
Telephone: (949) 387-7200
Facsimile: (949) 387-6676
Email: james@jameshawkinsaplc.com
isandra@jameshawkinsaplc.com
lance@jameshawkinsaplc.com
CREATORS AGENCY: Influencers Sued Over Cryptocurrency Scheme
------------------------------------------------------------
EDWIN GARRISON, individually and on behalf of all others similarly
situated, Plaintiffs v. KEVIN PAFFRATH; GRAHAM STEPHAN; ANDREI
JIKH; JASPREET SINGH; BRIAN JUNG; JEREMY LEFEBVRE; TOM NASH; BEN
ARMSTRONG; ERIKA KULLBERG; and CREATORS AGENCY, LLC, Defendants,
Case No. 1:23-cv-21023-CMA (S.D. Fla., March 15, 2023) is an action
against the Defendants, "Influencers" who promoted, assisted in,
and actively participated in FTX Trading LTD d/b/a FTX's and West
Realm Shires Services Inc. d/b/a FTX US's (collectively, the "FTX
Entities"), offer and sale of unregistered securities.
According to the complaint, the Plaintiff filed an action to hold
liable the Influencers who specifically violated the law and will
serve as precedent to warn and guide Influencers in the future. The
Influencers shared financial advice and actively promoted FTX and
its yield-bearing-accounts to their millions of followers. Though
FTX paid Defendants handsomely to push its brand and encourage
their followers to invest, the Defendants did not disclose the
nature and scope of their sponsorships and endorsement deals,
payments and compensation, nor conduct adequate due diligence, says
the suit.
CREATORS AGENCY, LLC is a creative agency, which specializes in
video marketing, and production of video content. [BN]
The Plaintiff is represented by:
Adam M. Moskowitz, Esq.
Joseph M. Kaye, Esq.
THE MOSKOWITZ LAW FIRM, PLLC
2 Alhambra Plaza, Suite 601
Coral Gables, FL 33134
Telephone: (305) 740-1423
Email: adam@moskowitz-law.com
joseph@moskowitz-law.com
- and -
Stuart Z. Grossman, Esq.
Manuel A. Arteaga-Gomez, Esq.
GROSSMAN ROTH YAFFA COHEN, P.A.
2525 Ponce de Leon Boulevard, Suite 1150
Coral Gables, FL 33134
Telephone: (305) 442-8666
Facsimile: (305) 285-1668
Email: szg@grossmanroth.com
aag@grossmanroth.com
- and -
Stephen Neal Zack, Esq.
Tyler Ulrich, Esq.
BOIES SCHILLER FLEXNER LLP
100 SE 2nd St., Suite 2800
Miami, FL 33131
Telephone: (305) 539-8400
Email: szack@bsfllp.com
tulrich@bsfllp.com
- and -
Jose Ferrer, Esq.
Michelle Genet Bernstein, Esq.
MARK MIGDAL HAYDEN LLP
8 SW 8th Street, Suite 1999
Miami, FL 33130
Telephone: (305) 374-0440
Email: jose@markmigdal.com
michelle@markmigdal.com
eservice@markmigdal.com
CREDIT SUISSE: Turner Sues Over Exchange Act Violation
------------------------------------------------------
Braden Turner, individually and on behalf of all others similarly
situated v. CREDIT SUISSE GROUP AG, AXEL P. LEHMANN, ULRICH KORNER,
DIXIT JOSHI, THOMAS GOTTSTEIN, and DAVID R. MATHERS, Case No.
1:23-cv-01476 (D.N.J., March 16, 2023), is brought on behalf of
persons or entities who purchased or otherwise acquired Credit
Suisse American Depository Shares ("ADSs") between March 10, 2022
and March 15, 2023, both dates inclusive (the "Class Period"),
seeking to recover compensable damages caused by Defendant's
violations of the federal securities laws under the Securities
Exchange Act of 1934 (the "Exchange Act").
On March 10, 2022, the Company filed with the Securities and
Exchange Commission ("SEC") its 2021 annual report (the "2021
Annual Report") on Form 20-F for the year ended December 31, 2021.
The 2021 Annual Report was signed by Defendants Gottstein and
Mathers attesting to the accuracy of financial reporting and the
disclosure of any material changes to the Company's internal
control over financial reporting.
On December 1, 2022, the Financial Times published an article
entitled "Credit Suisse chair says outflows have reversed since
'social media storm'" citing Defendant Lehmann and stating that
Credit Suisse clients had returned to the bank after pulling out
tens of billions of dollars of assets at the start of October.
On December 2, 2022, before market hours, in a Bloomberg TV
interview, Lehmann stated that outflows "basically have stopped"
after it had disclosed on November 23, 2023 the loss of 84 billion
francs or $90.8 billion of client assets. Also on December 2, 2022,
Bloomberg published an article entitled "Credit Suisse Gains Most
Since 2020 After Asset Outflows Halted" quoting Lehmann's
assurances regarding the Company's financial stability.
The statements were materially false and/or misleading because they
misrepresented and failed to disclose the following adverse facts
pertaining to the Company's business, operations, and prospects,
which were known to the Defendants or recklessly disregarded by
them. Specifically, the Defendants made false and/or misleading
statements and/or failed to disclose that: as opposed to contrary
statements, the Company was experiencing significant outflows
throughout its fourth quarter; the Company was experiencing
material weaknesses with internal controls , and as a result,
Defendants' statements about its business, operations, and
prospects, were materially false and misleading and/or lacked a
reasonable basis at all times.
On March 9, 2023, the Company issued an ad hoc announcement stating
it would delay the publication of its 2022 Annual Report and
related Annual Report after a call on March 8, 2023, from the SEC
regarding the Company's cash flow statements in the years ended
December 31, 2020, and 2019, as well as related controls. On this
news, the price of Credit Suisse ADS's fell 4.48% to close at $2.77
per ADS on March 9, 2023.
On March 14, 2023, the Company filed with the SEC its 2022 annual
report (the "2022 Annual Report") on Form 20-F for the year ended
December 31, 2022. The 2022 Annual Report was signed by Defendants
Korner and Joshi. The 2022 Annual Report identified material
weaknesses in the Company's internal Controls. On this news, the
price of Credit Suisse ADS's fell 1.18% to close at $2.51 per ADS
on March 14.
On March 15, 2023, Reuters published an article entitled "Credit
Suisse's biggest backer says can't put up more cash; share down by
a fifth" citing Saudi National Bank ("SNB") would not buy any more
of the Company's shares on regulatory grounds. On this news, the
price of Credit Suisse ADS's fell 13.94% to close at $2.16 per ADS
on March 15, further damaging investors. As a result of Defendants'
wrongful acts and omissions, and the precipitous decline in the
market value of the Company's ADSs, Plaintiff and the other Class
members have suffered significant losses and damages, says the
complaint.
The Plaintiff acquired Credit Suisse ADSs during the Class Period.
Credit Suisse is a financial services company, which engages in the
provision of financial services.[BN]
The Plaintiff is represented by:
Laurence M. Rosen, Esq.
THE ROSEN LAW FIRM, P.A.
One Gateway Center, Suite 2600
Newark, NJ 07102
Phone: (973) 313-1887
Fax: (973) 833-0399
Email: lrosen@rosenlegal.com
CRYOPORT SYSTEMS: Fails to Pay Minimum & OT Wages, Saldana Alleges
------------------------------------------------------------------
MARIA SALDANA, individually and on behalf of all others similarly
situated v. CRYOPORT SYSTEMS LLC; and DOES 1 through 20, inclusive,
Case No. 30-2023-01312802-CU-OE-CXC (Cal. Super., Mar. 16, 2023)
seeks to recover minimum wages and overtime wages in violation of
the California Labor Code and Industrial Welfare Commission Wage
Orders.
According to the complaint, the Defendant failed to provide lawful
meal periods or compensation in lieu thereof; failed to authorize
or permit lawful rest breaks or provide compensation in lieu
thereof; failed to reimburse necessary business-related costs;
failed to provide accurate itemized wage statements; and failed to
pay all wages due upon separation of employment.
The Plaintiff brings this lawsuit seeking monetary and injunctive
relief against the Defendant on the Plaintiff's own behalf and on
behalf of all Class Members to recover unpaid wages, unpaid meal
period premium payments, unpaid rest period premium payments,
unreimbursed business expenditures, interest, attorneys' fees,
penalties, costs, and expenses.
The Plaintiff's proposed class consists of and is defined as
follows:
"All California citizens currently or formerly employed by
Defendants as non-exempt employees in the State of
California
at any time between September 17, 4 2018 and the date of
class certification."
The Plaintiff also seeks to certify the following subclasses of
employees:
Waiting Time Subclass
"All members of the Class who separated their employment
with
Defendants at any time between September 17, 2019 and the
date of class certification."
The Plaintiff is a citizen of California and worked for Defendants
during the relevant time periods.
Cryoport Systems provides logistics support.[BN]
The Plaintiff is represented by:
Kashif Haque, Esq.
Samuel A. Wong, Esq.
Fawn F. Bekam, Esq.
AEGIS LAW FIRM, PC
9811 Irvine Center Drive, Suite 100
Irvine, CA 92618
Telephone: (949) 379-6250
Facsimile: (949) 379-6251
E-mail: fbekam@aegislawfirm.com
CS HOTEL: Faces Gomez Suit Over Alleged Workplace Harassment
------------------------------------------------------------
Adrian Gomez, individually and on behalf of other aggrieved current
and former employees v. CS Hotel, LLC, Hotel Cara, Dean McKillen,
Eduardo Castillo, and Does 1 to 50, Case No. 23STCV06023 (Cal.
Super. Ct., March 17, 2023) alleges violations of the Fair
Employment and Housing Act, the California Labor Code, and the
applicable Industrial Wage Orders.
Gomez claims that the Defendants failed take reasonable actions to
prevent him from being subjected to discrimination and/or
harassment in violation of the FEHA. In addition, Gomez also claims
the defendants violated several provisions of the Labor Code
including the provisions on meal period, rest break, and sick
leave/pay. Allegedly, the defendants also failed to pay overtime,
minimum wages, and owed tips/service fees. They also failed to
provide accurate wage statements; to produce employment records;
and to timely pay wages owed at time of termination/separation,
says the Plaintiff.
CS Hotel, LLC is an active California corporation registered with
the Secretary of State with an entity address located at 8445 Santa
Monica Blvd., Suite 1, West Hollywood, CA 90069 which is also its
principal address as identified on its Secretary of State filings.
Hotel Cara is located at 1730 N. Western Ave., West Hollywood, CA
90027.[BN]
The Plaintiff is represented by:
Zorik Mooradian, Esq.
Andrina G. Hanson, Esq.
Nanor C. Kamberian, Esq.
MOORADIAN LAW, APC
24007 Ventura Blvd., Suite 210
Calabasas, CA 91302
Telephone: (818)487-1998
Facsimile: (888)783-1030
E-mail: zorik@mooradianlaw.com
andrina@mooradianlaw.com
nanor@mooradianlaw.com
DASHCORPS INC: Fails to Pay Proper Wages, Blake Suit Alleges
------------------------------------------------------------
DANIEL BLAKE; and MELINA BLAKE, individually and on behalf of all
others similarly situated, Plaintiff v. DASHCORPS, INC.; and
DOORDASH ESSENTIALS, LLC, Defendant, Case No. 508009/2023 (N.Y.,
Sup., Kings Cty., March 15, 2023) seeks to recover from the
Defendants unpaid wages and overtime compensation, interest,
liquidated damages, attorneys' fees, and costs.
Plaintiff Daniel Blake was employed by the Defendants as shift
lead. Plaintiff Melina Blake was employed as operational
associate.
DOORDASH, INC. provides restaurant food delivery services. The
Company develops technology to connect customers with merchants
through an on-demand food delivery application. DoorDash serves
customers in the United States. [BN]
The Plaintiffs are represented by:
Mohammed Gangat, Esq.
LAW OFFICE OF MOHAMMED GANGAT
675 Third Avenue, Suite 1810,
New York, NY 10017
Telephone: (718) 669-0714
Email: mgangat@gangatpllc.com
DAVES ARMY & NAVY: Hwang Files ADA Suit in E.D. New York
--------------------------------------------------------
A class action lawsuit has been filed against Daves Army & Navy,
Inc. The case is styled as Jenny Hwang, on behalf of herself and
all others similarly situated v. Daves Army & Navy, Inc., Case No.
1:23-cv-02042 (E.D.N.Y., March 16, 2023).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Dave's New York -- https://davesnewyork.com/ -- offers a wide
selection of quality work wear, jeans, outerwear and footwear.[BN]
The Plaintiff appears pro se.
DC HEALTH BENEFIT: Suhr Files Suit in D. Columbia
-------------------------------------------------
A class action lawsuit has been filed against District of Columbia
Health Benefit Exchange Authority. The case is styled as Jenni
Suhr, individually and on behalf of all others similarly situated
v. District of Columbia Health Benefit Exchange Authority doing
business as: DC Health Link, Case No. 1:23-cv-00694-RJL (D.D.C.,
March 15, 2023).
The nature of suit is stated as Other Contract.
District of Columbia Health Benefit Exchange Authority --
https://www.dchealthlink.com/ -- is a private-public partnership
established to foster competition and transparency in the private
health insurance market, enabling individuals and small businesses
to compare health insurance prices and benefits and to purchase
affordable, quality health insurance.[BN]
The Plaintiff is represented by:
Gary Edward Mason, Esq.
MASON LLP
5335 Wisconsin Avenue NW, Suite 640
Washington, DC 20015
Phone: (202) 429-2290
Fax: (202) 429-2294
Email: gmason@masonllp.com
DECOR-WARE INTERNATIONAL: Cromitie Files ADA Suit in S.D. New York
------------------------------------------------------------------
A class action lawsuit has been filed against Decor-Ware
International Inc. The case is styled as Seana Cromitie, on behalf
of herself and all others similarly situated v. Decor-Ware
International Inc., Case No. 1:23-cv-02263-KPF (S.D.N.Y., March 16,
2023).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Decor-Ware International Inc. was founded in 1999. The Company's
line of business includes the wholesale distribution of non-durable
goods.[BN]
The Plaintiff is represented by:
Mark Rozenberg, Esq.
STEIN SAKS, PLLC
One University Plaza, Ste. 620
Hackensack, NJ 07601
Phone: (201) 282-6500
Email: mrozenberg@steinsakslegal.com
DESTINATION XL: Underpays Manual Workers, Nikolakopoulos Alleges
----------------------------------------------------------------
THEODORA NIKOLAKOPOULOS, individually and on behalf of all others
similarly situated v. DESTINATION XL GROUP, INC., CASUAL MALE
RETAIL STORE, LLC, Case No. 1:23-cv-02026 (E.D.N.Y., Mar. 16, 2023)
seeks to recover underpayment caused by untimely wage payments and
other damages for the Plaintiff and similarly situated manual
positions such as sales associates and tailors who work or have
worked for Destination XL Group, Inc. and/or Causal Male Retail
Store, LLC, in violations of the New York Labor Law.
The Defendants allegedly have compensated the Plaintiff and all
other Manual Workers in New York on a bi-weekly basis. Ms.
Nikolakopoulos was denied the time-value of her money by
Defendants' underpayments. She was unable to invest, save, or
purchase utilizing the wages she earned and was owed by March 10,
2018, and all other similarly underpaid workweeks. He was similarly
underpaid for every workweek that she was paid his lawfully earned
wages after more than seven days within the time she completed her
work, says the suit.
The Plaintiff and the New York Class have all been injured in that
they have been uncompensated, under-compensated, or untimely
compensated due to the Defendants' common policies, practices, and
patterns of conduct, added the suit.
Ms. Nikolakopoulos was employed by DXL as a Manual Worker from
April 13, 2014 through December 8, 2019 in Staten Island.
Destination XL is the leading retailer of Big + Tall men's clothing
and shoes.[BN]
The Plaintiff is represented by:
Brian S. Schaffer, Esq.
Dana M. Cimera, Esq.
FITAPELLI & SCHAFFER, LLP
28 Liberty Street, 30th Floor
New York, NY 10005
Telephone: (212) 300-0375
DFO LLC: Faces Bui Suit Over Unlawful Labor Practices
-----------------------------------------------------
The case styled DANA BUI, an individual and on behalf of aggrieved
employees, Plaintiff v. DFO, LLC, a Delaware Limited Lability
Company, DENNY'S, INC., a Florida Corporation, ARON MERESE, an
individual, and DOES 1 through 20, inclusive, Defendants, Case No.
23STCV05344 (Cal. Super., Los Angeles Cty., March 10, 2023) arises
from the Defendants' alleged violations of the California Labor
Code, the California Business & Professions Code, the California
Fair Employment and Housing Act, the California Government Code,
and the California Family Rights Act.
The complaint alleges the Defendants' failure to pay minimum wages,
failure to furnish wage and hour statements, failure to provide
meal and rest period compensation, failure to pay wages in a timely
manner, waiting time penalties, disability discrimination,
retaliatory conduct, failure to provide reasonable accommodations,
failure to engage in a good faith interactive process, wrongful
termination, and failure to grant medical leave.
The Plaintiff was hired by the Defendants as server working at
Defendants' Denny's restaurant located in Baldwin Park,
California.
DFO, LLC operates a chain of restaurants. The Company offers food
products and beverages. DFO serves customers in the United
States.[BN]
The Plaintiff is represented by:
Jonathan P. LaCour, Esq.
Lisa Noveck, Esq.
Jameson Evans, Esq.
Amanda M. Thompson, Esq.
EMPLOYEES FIRST LABOR LAW P.C.
Fair Oaks Ave., Suite 200
Pasadena, CA 91105
Telephone: (310) 853-3461
Facsimile: (949) 743-5442
E-mail: jonathanl@pierrelacour.com
lisan@pierrelacour.com
jamesone@pierrelacour.com
amandat@pierrelacour.com
EASTMAN KODAK: Tang Class Suit Concluded
-----------------------------------------
Eastman Kodak Co. disclosed in its Form 10-K Report for the fiscal
period ending December 31, 2022 filed with the Securities and
Exchange Commission on March 16, 2023, that the Federal District
Court in the District of New Jersey concluded the Tang class suit
on January 25, 2023 due to the withdrawal of plaintiff's notice of
appeal of the dismissal of lawsuit.
On August 13, 2020 Tiandong Tang commenced a class action lawsuit
against the Company, its Executive Chairman and Chief Executive
Officer and its Chief Financial Officer in Federal District Court
in the District of New Jersey, and on August 26, 2020 Jimmie A.
McAdams and Judy P. McAdams commenced a class action lawsuit
against the Company and its Executive Chairman and Chief Executive
Officer in Federal District Court in the Southern District of New
York (collectively, the "Securities Class Actions").
The Securities Class Actions seek damages and other relief based on
alleged violations of federal securities laws in the context of the
U.S. International Development Finance Corporation (the "DFC")
announcement (the "DFC Announcement") of the signing of a
non-binding letter of interest to provide a subsidiary of the
Company with a potential $765 million loan (the "DFC Loan") to
support the launch of Kodak Pharmaceuticals, an initiative that
would manufacture pharmaceutical ingredients for essential generic
drugs (the “DFC Pharmaceutical Project”) on July 28, 2020.
The Securities Class Actions were transferred to the Federal
District Court for the Western District of New York and were
consolidated into a single proceeding (the "Consolidated Securities
Class Action") on June 22, 2021.
Les Investissements Kiz Inc. and UAT Trading Service, Inc. were
appointed by the court to serve as lead plaintiff for the
Consolidated Securities Class Action on August 2, 2021, and the
lead plaintiff filed an amended consolidated complaint on October
1, 2021 which added Kodak's General Counsel and current and former
members of its Board of Directors as additional defendants.
The Company and individual defendants filed a joint motion to
dismiss the Consolidated Securities Class Action on December 14,
2021.
The lead plaintiff filed an opposition to the motion to dismiss on
February 28, 2022, and the Company and the individual defendants
filed responses to the plaintiff's opposition on April 6, 2022.
A hearing with respect to the motion to dismiss was held on August
3, 2022, and the lawsuit was dismissed with prejudice on September
28, 2022.
The plaintiffs filed a notice of appeal of the dismissal on
October 27, 2022 but withdrew the appeal on January 25, 2023 as a
result of which the lawsuit is concluded.
Eastman Kodak Company is a technology company focused on imaging
for business. The Company's portfolio of products and services
includes transforming large printing markets with digital offset,
digital print, and hybrid solutions and developing new solutions
for high-growth markets. The Company offers products and services
in entertainment imaging and commercial films.
EXEL INC: Faces Pickett Suit Over Criminal History Screening Policy
-------------------------------------------------------------------
WALTER PICKETT and MARSHAWN PEARSON, individually and on behalf of
all others similarly situated, v. EXEL INC. d/b/a DHL SUPPLY
CHAIN,, Case No. 1:23-cv-01655 (N.D. Ill., Mar. 16, 2023) alleges
that DHL Supply Chain implements a criminal history screening
policy and practice that perpetuates gross racial disparities in
the criminal justice system in violation of Title VII of the Civil
Rights Act of 1964.
The Plaintiffs seek monetary damages, and injunctive and
declaratory relief on behalf of themselves and all other DHL Supply
Chain applicants similarly impacted nationwide. The Plaintiffs were
found to be qualified for the forklift driver position and offered
employment conditional on a review of their criminal background but
were subsequently denied employment by DHL Supply Chain because of
their criminal histories. Because Black and Hispanic individuals
are subjected to arrest and conviction at disproportionally higher
rates than white people, particularly certain felony and
drug-related offenses, DHL Supply Chain's policy and practice of
denying applicants employment based on their criminal history has
an unjustified and unlawful disparate impact, the suit says.
Plaintiff Pickett filed a Charge of Discrimination, individually
and on behalf of individuals similarly situated with the Equal
Employment Opportunity Commission (EEOC) on March 28, 2017,
alleging that DHL Supply Chain's policy of denying employment to
persons with criminal records without any individualized analysis
has a disparate impact on Black applicants and was not consistent
with any business necessity in violation of Title VII.
The Plaintiffs are Black men who applied for and received
conditional offers of employment with DHL Supply Chain as forklift
drivers in DHL Supply Chain's product warehouses, subject to a
criminal background check.
Exel is a provider of product logistics and freight transportation
services, including warehousing, fulfillment, distribution, and
other supply chain management services.[BN]
The Plaintiffs are represented by:
Justin M. Swartz, Esq.
Ossai Miazad, Esq.
Christopher M. McNerney, Esq.
Rebecca L. Pattiz, Esq.
OUTTEN & GOLDEN LLP
685 Third Avenue, 25th Floor
New York, NY 10017
Telephone: (212) 245-1000
E-mail: jswartz@outtengolden.com
om@outtengolden.com
cmcnerney@outtengolden.com
rpattiz@outtengolden.com
EXTREME MOTOR: Fails to Pay Managers' OT Wages Under FLSA
---------------------------------------------------------
PATRICIA OLVERA, CASSANDRA, L. DIAZ, JASON LEE SOLIS, HUMBERTO
RAMIREZ VILLANUEVA, ANNA RODRIGUEZ, and MARISA GUERRA,
individually, and on behalf of others similarly situated v. EXTREME
MOTOR SPORTS LLC, a Texas limited liability company, and EXXXTREME
CYCLES LLC, a Texas limited liability company, and ARTEMIO PEREZ,
Case No. 4:23-cv-00952 (S.D. Tex., Mar. 16, 2023) seeks to recover
overtime wages, pursuant to the Fair Labor Standards Act and for
common law claims of breach of contract or (in the alternative)
unjust enrichment.
According to the complaint, the Plaintiffs complain that Defendants
allegedly misclassified them as exempt and wrongly denied their
legally-mandated overtime pay. The Plaintiffs and the putative
class were non-exempt because they were never paid $684 on a salary
basis. The Plaintiffs' primary duty was not management, and they
lacked the authority to hire or fire other employees or their
suggestions and recommendations
as to the hiring, firing, advancement, promotion or any other
change of status of other employees were not given particular
weight. Accordingly, the Defendants required the Plaintiffs and the
FLSA Collective to perform no less than 46 hours per week, but
failed to pay these employees the federally mandated overtime
compensation for every hour worked. Because of the Defendants'
illegal common policy, the Plaintiffs seek to represent current and
former “Managers” who were paid a salary of less than $684 per
week and whom Defendants improperly classified as exempt from the
overtime protections and remedies of the FLSA, says the suit.
The Plaintiffs seeks a declaration that their rights, and the
rights of the similarly situated Managers were violated, an award
of unpaid wages, an award of liquidated damages for any unpaid
wages that were overtime wages, injunctive and declaratory relief,
and an award of attorneys' fees and costs to make them whole for
damages they suffered, and to ensure that future workers will not
be subjected by the Defendants to such illegal conduct, added the
suit.
Plaintiff Olvera was paid by the Defendants for her services in the
form of an hourly wage, most recently at the rate of $13.00 per
hour. Plaintiff Diaz was paid by the Defendants for her services in
the form of an hourly wage, most recently at the rate of
approximately $15.00 per hour.
Extreme Motor operates as a sporting goods store.[BN]
The Plaintiffs are represented by:
Andrew R. Frisch, Esq.
MORGAN & MORGAN, P.A.
8151 Peters Road
Plantation, FL 33324
Telephone: (954) WORKERS
Facsimile: (954) 327-3013
E-mail: AFrisch@forthepeople.com
- and -
Charles R. Ash, IV, Esq.
ASH LAW, PLLC
402 W. Liberty St.
Ann Arbor, MI 48178
Telephone: (734) 234-5583
E-mail: cash@nationalwagelaw.com
- and -
Oscar Rodriguez, Esq.
HOOPER HATHAWAY, P.C.
126 South Main Street
Ann Arbor, MI 48104-1903
Telephone: (734) 662-4426
E-mail: orod@hooperhathaway.com
FIRE DEPARTMENT COFFEE: Crumwell Files ADA Suit in S.D. New York
----------------------------------------------------------------
A class action lawsuit has been filed against Fire Department
Coffee, Inc. The case is styled as Denise Crumwell, on behalf of
herself and all other persons similarly situated v. Fire Department
Coffee, Inc., Case No. 1:23-cv-02246 (S.D.N.Y., March 15, 2023).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Fire Department Coffee -- https://www.firedeptcoffee.com/ -- is a
coffee business that procures, processes, roasts, and retails
coffee beans and associated products.[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
FISHER PACKAGING: Miller Files ADA Suit in W.D. New York
--------------------------------------------------------
A class action lawsuit has been filed against Fisher Packaging
Solutions LLC. The case is styled as Kimberly Miller, on behalf of
herself and all other persons similarly situated v. Fisher
Packaging Solutions LLC, Case No. 1:23-cv-00235 (W.D.N.Y., March
16, 2023).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Fisher Packaging Solutions LLC -- https://fisherpackaging.com/ --
are a packaging consultancy with over 35 years of experience.[BN]
The Plaintiff is represented by:
Michael A. LaBollita, Esq.
GOTTFRIED & GOTTFRIED, LLP
122 East 42nd. St., Suite 620
New York, NY 10168
Phone: (212) 228-9795
Email: michael@gottlieb.legal
FLOOR AND DECOR: Martinez Sues Over Failure to Pay Weekly Basis
---------------------------------------------------------------
Carlos Martinez, on behalf of himself and all others similarly
situated v. FLOOR AND DECOR OUTLETS OF AMERICA, INC., Case No.
2:23-cv-01942 (E.D.N.Y., March 14, 2023), is brought to recover
liquidated damages, pre- and post-judgment interest, and attorneys'
fees and costs as a result of the Defendant violation of the New
York Labor Law ("NYLL") by failing to pay the Plaintiff in a weekly
basis.
The Plaintiff and all other non-managerial warehouse and retail
employees of Floor & Decor in New York State spent more than 25% of
their work time performing duties that were physical in nature,
such as bending, lifting, standing, carrying, and walking (the
"Manual Workers"), and were paid on a biweekly basis. The Defendant
violated the NYLL by paying Manual Workers' wages on a biweekly
basis. As "Manual Workers" within the meaning of the NYLL, they
should have been paid "weekly and not later than seven calendar
days after the end of the week their wages are earned," says the
complaint.
The Plaintiff worked as a Warehouse Associate at the Defendant's
retail store located in Commack, New York.
Floor & Decor has quickly become "one of the country's leading
flooring retailers" to sell title, wood, stone, installation
materials, and flooring accessories.[BN]
The Plaintiff is represented by:
Gianfranco J. Cuadra, Esq.
PECHMAN LAW GROUP PLLC
488 Madison Avenue, 17th Floor
New York, NY 10022
Phone: (212) 583-9500
Email: pechman@pechmanlaw.com
cuadra@pechmanlaw.com
FREIGHT SALES: Cromitie Files ADA Suit in S.D. New York
-------------------------------------------------------
A class action lawsuit has been filed against Freight Sales, Inc.
The case is styled as Seana Cromitie, on behalf of herself and all
others similarly situated v. Freight Sales, Inc., Case No.
1:23-cv-02266 (S.D.N.Y., March 16, 2023).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Freight Sales, Inc. retails automobiles. The Company offers new and
used cars, trucks, vans, and sport utility vehicles, as well as
renders service, repair, parts, accessories, and financing
options.[BN]
The Plaintiff is represented by:
Mark Rozenberg, Esq.
STEIN SAKS, PLLC
One University Plaza, Ste. 620
Hackensack, NJ 07601
Phone: (201) 282-6500
Email: mrozenberg@steinsakslegal.com
GENEDX HOLDINGS: Continues to Defend Shareholder Class Suit
-----------------------------------------------------------
GeneDx Holdings Corp. disclosed in its Form 10-K Report for the
fiscal period ending December 31, 2022 filed with the Securities
and Exchange Commission on March 16, 2023, that the Company
continues to defend itself from the shareholder class suit in the
United States District Court for the District of Connecticut.
On September 7, 2022, a shareholder class action lawsuit was filed
in the United States District Court for the District of Connecticut
against the Company and certain of the Company's current and former
officers. Following the appointment of a lead plaintiff, an amended
complaint was filed on January 30, 2023.
As amended, the complaint purports to bring suit on behalf of
stockholders who purchased the Company's publicly traded securities
between March 14, 2022 and August 15, 2022.
The complaint purports to allege that defendants made false and
misleading statements about the Company's business, operations and
prospects in violation of Sections 10(b) and 20(a) of the
Securities Exchange Act of 1934, and seeks unspecified compensatory
damages, fees and costs.
The Company believes the allegations and claims made in the
complaint are without merit.
GeneDx Holdings Corp. was founded in 2000 by scientists from the
National Institutes of Health whose mission was making genetic
testing accessible for patients with rare diseases. It delivers
personalized and actionable health insights to inform diagnosis,
direct treatment and improve drug discovery.
GENEDX HOLDINGS: Continues to Defend Stockholder Class Suit
-----------------------------------------------------------
GeneDx Holdings Corp. disclosed in its Form 10-K Report for the
fiscal period ending December 31, 2022 filed with the Securities
and Exchange Commission on March 16, 2023, that the Company
continues to defend itself from stockholder class suit in the
Delaware Court of Chancery.
On February 7, 2023, a stockholder commenced a lawsuit in the
Delaware Court of Chancery. The suit is brought as a class action
on behalf of stockholders of CMLS who did not redeem their shares
in connection with the Business Combination. The suit names as
defendants all directors of CMLS at the time of the transaction,
including directors who continue to serve on the Company's board of
directors, as well as CMLS Holdings LLC, the Former Sponsor.
The Company is not named as a defendant. The complaint alleges that
the July 2, 2021 proxy statement mailed to CMLS stockholders in
connection with the transaction contained false and misleading
statements, and purports to assert a claim of breach of fiduciary
duty against all individual defendants, and a similar claim against
the Former Sponsor and certain individuals for breach of fiduciary
duty as control persons.
The suit seeks to recover unspecified damages on behalf of the
alleged class, among other relief.
The Company believes the allegations and claims made in the
complaint are without merit.
GeneDx Holdings Corp. was founded in 2000 by scientists from the
National Institutes of Health whose mission was making genetic
testing accessible for patients with rare diseases. It delivers
personalized and actionable health insights to inform diagnosis,
direct treatment and improve drug discovery.
GEO GROUP: 3 Questions in Nwauzor Certified to Wash. Supreme Ct.
----------------------------------------------------------------
In the cases, UGOCHUKWU GOODLUCK NWAUZOR; FERNANDO AGUIRRE-URBINA,
individually and on behalf of all those similarly situated,
Plaintiffs-Appellees v. THE GEO GROUP, INC., a Florida corporation,
Defendant-Appellant, STATE OF WASHINGTON, Plaintiff-Appellee v. THE
GEO GROUP, INC., Defendant-Appellant, Case Nos. 21-36024, 22-35026,
21-36025, 22-35027 (9th Cir.), the U.S. Court of Appeals for the
Ninth Circuit asks the Washington Supreme Court to exercise its
discretion to decide the following certified questions:
(1) In the circumstances of the case, are the detained workers
at the Northwest ICE Processing Center ("NWIPC") employees
within the meaning of Washington's Minimum Wage Act
("MWA")?
(2) If the answer to the first question is yes, does the MWA
apply to work performed in comparable circumstances by
civil detainees confined in a private detention facility
operating under a contract with the State?
(3) If the answer to the first question is yes and the answer
to the second question is no, and assuming that the damage
award to the detained workers is sustained, is that damage
award an adequate legal remedy that would foreclose
equitable relief to the State in the form of an unjust
enrichment award?
The Plaintiffs-Appellees are (1) a class of federal civil
immigration detainees held in a private detention center in Tacoma,
Washington, operated by Defendant-Appellant GEO pursuant to a
contract with the federal government, and (2) the State of
Washington. The detainees perform compensated essential work at
GEO's detention center. The detained workers challenge GEO's
practice of paying them less than the State's minimum wage to work
at the detention center. GEO appeals from the district court's
denial of GEO's motion for judgment as a matter of law; its award
of damages to the class; and its award of unjust enrichment to the
State.
The class' damages claim under MWA turns on two important and
unresolved issues of Washington law. Stated briefly, those issues
are: (1) whether the Plaintiffs are, in the circumstances of the
case, "employees" under the MWA; and (2) whether the
government-institutions exemption of the MWA extends to work
performed by the Plaintiffs. The State's unjust enrichment claim
depends on another important and unresolved issue of Washington
law: whether the class' damages award on their MWA claim is an
adequate legal remedy that forecloses an award to the State of
equitable relief under the MWA in the form of restitution.
GEO is a private, for-profit corporation that operates detention
and correctional centers across the country. It acquired the NWIPC
located in Tacoma, Washington, in 2005. GEO operates NWIPC pursuant
to a contract with Immigration and Customs Enforcement ("ICE") to
provide "detention management services."
On Sept. 20, 2017, the State sued GEO in Pierce County Superior
Court, alleging violations of the MWA and seeking equitable
remedies including unjust enrichment. On Sept. 26, 2017, detained
workers filed a class action in federal district court, alleging
violations of the MWA and seeking damages. On Oct. 9, 2017, GEO
removed the State's suit to the district court.
The district court consolidated the two cases for the purpose of
determining liability. A jury trial was conducted in October 2021.
The jury returned a unanimous verdict for the Plaintiffs under the
MWA in both cases. After the jury returned its verdict, the court
held a damages trial in the class action and awarded $17.3 million
in back pay. It held a separate trial on the State's equitable
claims. It enjoined GEO from employing detained individuals without
paying Washington's minimum wage, and it awarded the State
$5,950,340 based on unjust enrichment of GEO.
GEO timely appealed.
The Ninth Circuit explains that Washington law authorizes
certification of a question from a federal court when in the
opinion of that court it is necessary to ascertain the local law of
the state to dispose of such proceeding and the local law has not
been clearly determined.
In its appeal to the Ninth Circuit, GEO first argues that the text
of the MWA and Washington case law interpreting the MWA exclude
from the MWA's coverage the detained workers participating in the
VWP at NWIPC. Both the State and the class members argue that the
detained workers are employees within the meaning of the MWA.
The Ninth Circuit states that the Washington Supreme Court
sometimes looks to the FLSA in ascertaining the scope of the MWA.
Even if the Washington Supreme Court in this case were to look to
the FLSA for assistance, the federal cases are in conflict. Whether
the MWA applies to the work performed by members of the Plaintiff
class is a determinative threshold issue. If detained workers at
NWIPC are not employees within the meaning of the MWA, they have no
case. There is no direct and unambiguous controlling precedent
telling the Ninth Circuit whether the MWA applies to essential work
performed by civil detainees in a detention facility operated by a
private company under a contract with the federal government.
If the MWA applies, in the circumstances of the case, to work
performed by civil detainees in a private detention center operated
under a contract with the federal government, a second question
arises: whether the MWA applies to work performed, in comparable
circumstances, by civil detainees at a private detention facility
operated under a contract with the State.
The State and members of the Plaintiff class argue that section k
distinguishes between private and public institutions, thereby
avoiding intergovernmental immunity concerns. GEO argues that
Washington treats itself more favorably than a federal contractor
in comparable circumstances, in violation of the intergovernmental
immunity doctrine and the Supremacy Clause. It points to guidance
promulgated by the Washington State Department of Labor and
Industries.
However, the application and effect of this guidance are unclear,
the Ninth Circuit says. First, it is not clear whether the guidance
would treat the detainees in this case differently from detainees
working in comparable circumstances in an private institution
operating under contract with the state. Second, even if the
guidance were to apply in such a fashion as to treat the federal
government less favorably than the State, the guidance is not a
judicial interpretation of the MWA.
Third, GEO contends that the State is barred from seeking unjust
enrichment because there is an adequate remedy at law. The State
argues that the damages remedy under the MWA does not provide an
adequate remedy to the non-detained community in the Tacoma area
that has been adversely affected by GEO's reliance on its detained
workforce to perform essential work at NWIPC.
The Ninth Circuit holds that Washington's case law on unjust
enrichment does not clearly answer the question whether the MWA
damages award to the class is an adequate remedy that bars an
unjust enrichment award to the State. An answer to this question is
necessary to the disposition of the State's unjust enrichment
claim. There may be other questions relevant to the award of unjust
enrichment in this case that the Washington Supreme Court may also
choose to address.
For these reasons, the Ninth Circuit holds that certification of
the questions to the Washington Supreme Court is particularly
appropriate when questions of unsettled state law have significant
policy implications. It believes that the certified questions meet
this standard. The resolution of these questions is likely to have
a significant impact on how the federal government contracts with
private detention facilities in the State.
The Clerk of Court is ordered to transmit to the Washington Supreme
Court, under official seal of the Ninth Circuit, the Order and
request for certification along with all relevant briefs and
excerpts of record pursuant to Wash. Rev. Code Sections 2.60.010
and 2.60.030 and Washington Rule of Appellate Procedure 16.16.
If the Washington Supreme Court accepts the certified questions,
the Ninth Circuit designates GEO as the party to file the first
brief pursuant to Washington Rule of Appellate Procedure
16.16(e)(1).
Further proceedings in the Ninth Circuit are stayed pending the
Washington Supreme Court's decision whether to accept review; and,
if that court accepts review, pending receipt of answers to the
certified questions. This appeal is withdrawn from submission until
further order. The Clerk is directed to administratively close the
docket. The panel will resume control and jurisdiction upon the
Washington Supreme Court's decision to not accept the certified
questions or upon receipt of answers to the certified questions.
When the Washington Supreme Court decides whether to accept the
certified questions, or orders additional briefing before deciding
whether to accept the questions, the parties are directed to
promptly file a joint status report informing us. If the Washington
Supreme Court accepts the certified question, the parties are
directed to file further joint status reports informing the Ninth
Circuit when briefing has been completed and a date set for oral
argument and when the Washington Supreme Court provides answers to
the certified questions.
A full-text copy of the Court's March 7, 2023 Order is available at
https://tinyurl.com/ycyyj5m8 from Leagle.com.
Michael W. Kirk -- mkirk@cooperkirk.com -- (argued), Charles J.
Cooper -- ccooper@cooperkirk.com -- J. Joel Alicea --
jalicea@cooperkirk.com -- Joseph O. Masterman --
jmasterman@cooperkirk.com -- and Tiernan B. Kane, Cooper and Kirk
PLLC, Washington, D.C., for the Defendant-Appellant.
Jennifer D. Bennett -- jennifer@guptawessler.com -- (argued) and
Neil K. Sawhney -- neil@guptawessler.com -- Gupta Wessler PLLC, San
Francisco, California; Gregory A. Beck, Gupta Wessler PLLC,
Washington, D.C.; Jamal N. Whitehead -- whitehead@sgb-law.com --
Adam J. Berger -- berger@sgb-law.com -- Lindsay L. Halm --
halm@sgb-law.com -- and Rebecca J. Roe, Schroeter Goldmark &
Bender, Seattle, Washington; Robert Andrew Free --
andrew@immigrantcivilrights.com -- Law Office of R. Andrew Free,
Atlanta, Georgia; Meena Pallipamu, Meena Pallipamu Immigration Law
PLLC, Seattle, Washington; Devin T. Theriot-Orr --
devin@sunbird.law -- Open Sky Law PLLC, Kent, Washington; for
Plaintiffs Appellees Ugochukwu Goodluck Nwauzor and Fernando
Aguirre-Urbina.
Marsha J. Chien (argued), Andrea Brenneke, and Lane Polozola,
Assistant Attorneys General; Robert W. Ferguson, Attorney General
of Washington State; Office of the Washington State Attorney
General; Seattle, Washington; for Plaintiff-Appellee State of
Washington.
Christopher J. Hajec and Gina M. D'Andrea, Immigration Reform Law
Institute, Washington, D.C., for Amicus Curiae Immigration Reform
Law Institute.
Catherine K. Ruckelshaus, National Employment Law Project, New
York, New York, for Amicus Curiae National Employment Law Project
Inc.
Kwi "Kat" Choi and Robin L. Goldfaden, Deputy Attorneys General;
Vilma R. Palma-Solana and Marisa Hernandez-Stern, Supervising
Deputy Attorneys General; Michael L. Newman and Satoshi Yanai,
Senior Assistant Attorneys General; Rob Bonta, Attorney General of
California; California Department of Justice; Los Angeles,
California; for Amici Curiae the States of California, Connecticut,
Delaware, Hawaii, Illinois, Maine, Maryland, Michigan, Minnesota,
New Jersey, New Mexico, New York, Oregon, Rhode Island, and Vermont
and the District of Columbia.
Hannah Woerner, Columbia Legal Services, Olympia, Washington;
Jeremiah Miller, Fair Work Center, Seattle, Washington; for Amici
Curiae La Resistencia, Fair Work Center, and Prof. Angelina
Snodgrass Godoy.
Eunice Hyunhye Cho, American Civil Liberties Union, National Prison
Project, Washington, D.C.; Aditi Shah, American Civil Liberties
Union, National Prison Project, New York, New York; for Amici
Curiae the American Civil Liberties Union (ACLU), the ACLU of
Washington, and the National Immigrant Justice Center.
Matt Adams, Aaron Korthuis, Leila Kang , and Michael Hur, Northwest
Immigrant Rights Project, Seattle, Washington, for Amicus Curiae
the Northwest Immigrant Rights Project.
GHP GROUP INC: Toro Files ADA Suit in S.D. New York
---------------------------------------------------
A class action lawsuit has been filed against GHP Group, Inc. The
case is styled as Andrew Toro, on behalf of himself and all others
similarly situated v. GHP Group, Inc., Case No. 1:23-cv-02132
(S.D.N.Y., March 13, 2023).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
GHP Group Inc. -- https://ghpgroupinc.com/ -- is a manufacturer and
distributor of outdoor living, BBQ/Grill, heating, hearth, water
filtration and purification, and home organization.[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
GLOBAL OBLIGORS: Cameron Files TCPA Suit in D. Utah
---------------------------------------------------
A class action lawsuit has been filed against Global Obligors Inc.
The case is styled as Jordan Cameron, on behalf of himself and
others similarly situated v. Global Obligors Inc. doing business
as: Choice Home Warranty; Home Warranty Administrator of Utah doing
business as: Choice Home Warranty; American Global Obligors doing
business as: Choice Home Warranty; Case No. 2:23-cv-00128-HCN-JCB
(D. Utah, Feb. 17, 2023).
The lawsuit is brought over alleged violation of the Telephone
Consumer Protection Act for Restrictions of Use of Telephone
Equipment.
Global Obligors Inc. doing business as Choice Home Warranty --
https://www.choicehomewarranty.com/ -- offers two solid base plans
and doesn't deny coverage based on your home's age.[BN]
The Plaintiff is represented by:
Jennifer F. Parrish, Esq.
James E. Magleby, Esq.
MAGLEBY CATAXINOS & GREENWOOD
141 W. Pierpont Ave.
Salt Lake City, UT 84101
Phone: (801) 359-9000
Fax: (801) 359-9011
Email: parrish@mcgiplaw.com
magleby@mcgiplaw.com
The Defendants are represented by:
Mark S. Swan
STRONG & HANNI
9350 S, 150 E., Ste. 820
Sandy, UT 84070
Phone: (801) 532-7080
Email: mswan@strongandhanni.com
HOAG MEMORIAL: Discloses Patients' Medical Info, Davis Suit Alleges
-------------------------------------------------------------------
Kelly Davis, individually and on behalf of all other persons
similarly situated v. Hoag Memorial Hospital Presbyterian, Case No.
30-2023-01312941-CU-BT-CXC (Cal. Super. Ct., March 17, 2023)
alleges Defendant's conduct of aiding, employing, agreeing, and
conspiring with Facebook to intercept communication he sent and
received, including communications containing protected medical
information in violation of the California Invasion of Privacy Act
and the California Confidentiality of Medical Information Act as
well as alleges invasion of privacy under California's
Constitution.
Ms. Hoag deprived Davis of her privacy rights when they:
implemented a system that surreptitiously tracked, recorded, and
disclosed Davis’ and other online patients' confidential
communications, personally identifiable information, and protected
health information; (2) disclosed patients' protected information
to Facebook -- an unauthorized third-party eavesdropper; and (3)
undertook this pattern of conduct without notifying Davis and
without obtaining her express written consent. Davis did not
discover that Hoag disclosed her personally identifiable
information and protected health information to Facebook, and
assisted Facebook with intercepting her communications, until
January 2023.
Hoag is registered as a nonprofit entity with its principal place
of business in Newport Beach, California. It offers a full range of
medical services, including primary and outpatient care, and treats
thousands of patients throughout Orange County each year. Hoag owns
and operates hoag.org. [BN]
The Plaintiff is represented by:
L. Timothy Fisher, Esq.
BURSOR & FISHER, P.A.
1990 North California Blvd., Suite 940
Walnut Creek, CA 94596
Telephone: (925) 300-4455
Facsimile: (925) 407-2700
E-mail: ltfisher@bursor.com
- and -
Joshua D. Arisohn, Esq.
Philip L. Fraietta, Esq.
BURSOR & FISHER, P.A.
888 Seventh Avenue
New York, NY 10019
Telephone: (646) 837-7150
Facsimile: (212) 989-9163
E-mail: jarisohn@bursor.com
pfraietta@bursor.com
- and -
Christopher R. Reilly, Esq.
BURSOR & FISHER, P.A.
701 Brickell Ave., Suite 1420
Miami, FL 33131-2800
Telephone: (305) 330-5512
Facsimile: (305) 676-9006
E-mail: creilly@bursor.com
- and -
Scott R. Drury, Esq.
DRURY LEGAL, LLC
6 Carriage Lane
Highwood, IL 60040
Telephone: (312) 358-8225
E-mail: scott@drurylegal.com
IMMUNOMEDICS INC: $40MM Class Settlement to be Heard on June 15
---------------------------------------------------------------
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
AHMAD ODEH, Individually and on Behalf of All Others Similarly
Situated,
Plaintiff,
vs.
IMMUNOMEDICS, INC., et al.,
Defendants.
No. 2:18-cv-17645-ESK
(Consolidated)
CLASS ACTION
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. §78u-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:
Immunomedics Securities Settlement
c/o JND Legal Administration
P.O. Box 91456
Seattle, WA 98111
Inquiries should NOT be directed to Defendants, the Court, or the
Clerk of the Court.
Inquiries, other than requests for the Notice or for a Proof of
Claim, may be made to
Lead Counsel:
ROBBINS GELLER RUDMAN & DOWD LLP
Ellen Gusikoff Stewart
655 West Broadway, Suite 1900
San Diego, CA 92101
Telephone: 800/449-4900
settlementinfo@rgrdlaw.com
If you desire to be excluded from the Class, you must submit a
request for exclusion such that it is postmarked by May 25, 2023,
in the manner and form explained in the Notice. All Class Members
will be bound by the Settlement even if they do not submit a timely
Proof of Claim.
If you are a Class Member, you have the right to object to the
Settlement, the Plan of Allocation, the request by Lead Counsel for
an award of attorneys' fees not to exceed 29.5% of the $40,000,000
Settlement Amount and expenses not to exceed $650,000 and awards to
Lead Plaintiffs not to exceed $25,000 in the aggregate in
connection with their representation of the Class. Any objections
must be filed with the Court and sent to Lead Counsel and
Defendants' Counsel by May 25, 2023, in the manner and form
explained in the Notice.
For any questions, visit www.ImmunomedicsSecuritiesSettlement.com
or call toll-free at 855-678-0183.
BY ORDER OF THE COURT
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
INVENTION SUBMISSION: Calhoun's $3M Class Settlement Gets Final OK
------------------------------------------------------------------
In the case, ETTA CALHOUN, SHERRY PORTER and CYNTHIA GRAY,
individually and on behalf of a class of all persons and entities
similarly situated, Plaintiffs v. INVENTION SUBMISSION CORPORATION
d/b/a INVENTHELP, TECHNOSYSTEMS CONSOLIDATED CORP., TECHNOSYSTEMS
SERVICE CORP., WESTERN INVENTION SUBMISSION CORP., UNIVERSAL
PAYMENT CORPORATION, INTROMARK INC., ROBERT J. SUSA, THOMAS FROST
and THOMAS FROST, P.A., Defendants. This Opinion Also Relates To
Carla Austin, et al. v. Invention Submission Corporation, et al.,
No. 2:19-cv-01396 and Geta Miclaus, et al. v. Invention Submission
Corporation, et al., No. 2:20-cv-681, Civil Action No. 18-1022
(W.D. Pa.), Magistrate Judge Patricia L. Dodge of the U.S. District
Court for the Western District of Pennsylvania grants the
Plaintiffs' Motion for Final Approval of Class Action Settlement.
Calhoun commenced the class action in June 2018 in the U.S.
District Court for the Eastern District of Pennsylvania, bringing
claims individually and on behalf of a class of all persons and
entities similarly situated. The lawsuit was transferred to this
Court and the Complaint was subsequently amended twice, including
the addition of Sherry Porter and Cynthia Gray as named plaintiffs.
The operative pleading is the Second Amended Complaint. On Aug. 24,
2022, the parties stipulated to the dismissal of Etta Calhoun and
Sherry Porter.
Two other related class actions were filed, one by Carla Austin and
Nil Leone (Civ. A. No. 19-1396) and another by Geta Miclaus, Kevin
Byrne and Vim Byrne (Civ. A. No. 20-681). All three cases were
later consolidated for discovery and other pretrial purposes.
Presently before the Court is the Plaintiffs' Motion for Final
Approval of Class Action Settlement.
The Plaintiffs assert claims that primarily arise under the
American Inventors Protection Act, 35 U.S.C. Section 297 (AIPA), as
well as additional claims under Pennsylvania law. They allege that
the "InventHelp Defendants" (consisting of Invention Submission
Corporation d/b/a InventHelp, Western Invention Submission Corp.
d/b/a Western InventHelp, Technosystems Consolidated Corp.,
Technosystems Service Corporation, Universal Payment Corp.,
Intromark Inc. and Robert J. Susa (the president of these
companies)) engaged in various improper acts during the course of
providing invention promotion services. In addition, the "Frost
Attorney Defendants" (Thomas Frost and Thomas Frost, P.A.) are
alleged to have engaged in improper conduct while serving as patent
attorneys.
The Plaintiffs allege that the InventHelp Defendants failed to
provide certain invention promotion services that were promised to
customers, including matters related to: (a) the introductory Basic
Information Package Agreement offered by certain InventHelp
Defendants ("BIP Agreements"), that includes the preparation of a
report that described a customer's invention and potentially
applicable market opportunities, along with an optional
"Preliminary Patentability Opinion" authored by the Frost Attorney
Defendants; and (b) a more extensive "Submission Agreement" or "SUB
Agreement" which was between either InventHelp or Western
InventHelp and a customer for the purchase of invention submission
services.
In the SUB Agreement, InventHelp agreed to submit prescribed
product information to approximately 100 companies, a majority of
whom purportedly were registered in the InventHelp Defendants'
proprietary "Data Bank" as having agreed to review those
submissions in confidence and good faith. The Plaintiffs allege
that the InventHelp Defendants misrepresented material information
about these services that caused customers to enter into service
contracts that they otherwise would not have entered into.
The parties first engaged in settlement discussions by
participating in mediation sessions with the Hon. Diane Welsh
(Ret.) on June 4, 2020 and July 2, 2020. These efforts were not
successful. After a substantial amount of fact discovery was
completed, the Court referred the matter to Magistrate Judge Lisa
Pupo Lenihan solely for the purpose of engaging in settlement
negotiations. The parties agreed their efforts would include
confirmatory discovery concerning Defendants' financial status.
Following such discovery, the parties engaged in extensive
conferences, discussions and negotiations with Judge Lenihan over a
series of months which ultimately culminated in agreement on the
terms of the proposed settlement.
According to the parties, the Settlement Agreement ("SA") now
before the Court takes into account all of the facts and
circumstances underlying the matter, including the Defendants'
financial resources. The settlement provides economic and
non-economic benefits to the Settlement Class as well as processes
that the InventHelp Defendants agreed to implement in order to
ensure the claimed wrongful conduct does not continue.
The proposed settlement includes the following terms:
a. $3 million to be paid into a Gross Settlement Fund;
b. $20 cash outside the Gross Settlement Fund for each
customer who fully paid for their BIP Agreement that
submits a Claim Form deemed timely and valid by the
Settlement Administrator. A total of 29,478 fully paid BIP
Agreements fall into this category;
c. $20 credit outside the Gross Settlement Fund against the
outstanding balance for each customer who has not fully
paid for their BIP Agreement that submits a Claim Form
deemed timely and valid by the Settlement Administrator. A
total of 7,404 not fully paid BIP Agreements fall into this
category;
d. An election of an $800 credit outside the Gross Settlement
Fund against the outstanding balance or $3,000 in services
for each of the SUB customers who have SUB Agreements that
are Not Fully Paid and Open that submit a Claim Form deemed
timely and valid by the Settlement Administrator. A total
of 3,411 SUB Agreements Not Fully Paid and Open fall into
this category;
e. Up to a $1,500 credit outside the Gross Settlement Fund
against the outstanding balance for each of the SUB customers who
have SUB Agreements Not Fully Paid and Closed. A total of 4,487 SUB
Agreements Not Fully Paid and Closed fall into this category; and
f. A pro rata payment of up to $250 from the Net Settlement
Fund and $3,000 in services for each of the SUB customers who have
SUB Agreements that are Fully Paid and that submit a Claim Form
deemed timely and valid by the Settlement Administrator. A total of
10,325 SUB Agreements Fully Paid fall into this category.
In addition, the Settlement Class Members who entered into more
than one contract for services are entitled to relief as to each
contract, except that SUB Agreement Customers are only entitled to
relief based upon their SUB Agreements, not the earlier BIP
Agreements that were subsumed by the SUB Agreements.
The Settlement Agreement also provides Settlement Class Members
with assistance concerning Consumer Reporting Agencies ("CRAs") as
follows:
a. Within 30 days of the Effective Date and as to those Class
members whose balances are fully eliminated as a result of the
Class member relief, the relevant InventHelp Defendant(s) will
contact all CRAs to which it (or anyone acting on its behalf)
previously has reported information regarding outstanding payments
owed by such Settlement Class member to any of the InventHelp
Defendants, and request permanent removal of any negative
tradelines previously reported to CRAs in the name of any of the
InventHelp Defendants or anyone acting on their behalf regarding
such outstanding payments. A tradeline will be considered
"negative" if it indicates that any payment was missed.
b. Within 90 days of the Effective Date and as to those Class
Members whose balances are reduced, but not fully eliminated, as a
result of the Class Member Relief, the relevant InventHelp
Defendant(s) will contact the CRAs and report the modified
balance.
c. If at any time following 90 days after the Effective Date
for any Settlement Class Member whose balance has been fully
eliminated, or following 120 days from the Effective Date for any
Settlement Class Member whose balance has been modified, any such
Settlement Class Member determines that any of the CRAs have not
complied with the request of the InventHelp Defendants as set forth
in this paragraph, inclusive of subsections, then the Settlement
Class Member may provide written notice to the InventHelp
Defendants, together with copies of any credit reports for which he
or she contends the credit reporting has not been properly updated,
via email or U.S. mail. In that event, the relevant InventHelp
Defendant will, within 30 days, make a second request in writing
that the CRAs update the reporting as set forth in this paragraph.
The Plaintiffs also obtained changes to Defendants' policies and
procedures going forward with the goal of ensuring that the alleged
wrongful conduct does not continue. Specifically, the InventHelp
Defendants agreed to implement six processes to address the
practices that the Plaintiffs challenged in the litigation,
including to employ a customer care team to address complaints by
Settlement Class Members on a timely basis, and retain a searchable
electronic record of any and all such complaints and the InventHelp
Defendants' responses.
As provided in the Settlement Agreement, these policies must be
implemented within thirty days of the Effective Date of the
Settlement, will be paid for by the InventHelp Defendants outside
of the Gross Settlement Fund, and will exist for a period of at
least five years from the Effective Date.
As consideration for the benefits received by Plaintiffs as part of
the settlement, the Defendants and their subsidiaries and
affiliates will receive a release from all claims arising out of or
related to the Litigation, as well as those which were or could
have been asserted in the Litigation.
In an order dated Aug. 24, 2022, the Court granted the Plaintiffs'
Unopposed Motion for Preliminary Approval of Settlement Agreement,
approved the proposed notice to the settlement class, and
provisionally certified the following settlement class: All United
States residents who purchased services from any of the InventHelp
Defendants during the time period from Jan.1, 2014 to June 30,
2021.
The Court appointed Angeion Group, LLC as the Settlement
Administrator. Based upon utilization of both forms of notice, it
appears that a total of 52,892 out of 53,223 unique Settlement
Class Members (representing 99.38% of the total class) received
notice. Angeion also established a toll-free hotline to inform
Class Members of their rights and options. As of Jan. 9, 2023, the
hotline had received 4,703 calls. In addition, Angeion established
a settlement website. As of Jan. 9, 2023, the website had received
6,293 online claim submissions.
The deadline to submit claim forms and request exclusion from the
Settlement or to file an objection was Jan. 6, 2023. The Settlement
Administrator reported that as of Jan. 9, 2023, it had received
9,556 claim forms, and only 20 opt-outs and 16 objections.
The Plaintiffs' Motion for Final Approval of Class Action
Settlement was filed on Jan. 11, 2023. In support of their motion,
the Plaintiffs submitted declarations from their counsel and from
the Settlement Administrator. A final fairness hearing was held on
Feb. 1, 2023.
On Feb. 3, 2023, the Plaintiffs filed a Supplemental Response in
Further Support of Plaintiffs' Motion for Final Approval of Class
Action Settlement. In addition, the Settlement Administrator filed
a Supplemental Declaration Regarding Additional Objections and
Opt-Outs. Thus, out of a total of nearly 53,000 Settlement Class
Members, 45 have exercised an opt-out right and 26 objections to
the proposed settlement have been asserted.
Judge Dodge finds that the settlement is "fair, reasonable, and
adequate" to protect the interests of all class members and that
final approval of the Settlement is warranted. Based upon her
conclusion that the settlement is within a reasonable range and is
fair, reasonable, and adequate when considered from the perspective
of the settlement class as a whole, she rejects the objections to
the settlement.
For these reasons, the Plaintiffs' motion for final approval of
class action settlement is granted. An order will follow.
A full-text copy of the Court's March 8, 2023 Memorandum Opinion is
available at https://tinyurl.com/2rwdn5ys from Leagle.com.
KRUSE-WESTERN INC: Zavala Has Leave to File First Amended Complaint
-------------------------------------------------------------------
In the case, ARMANDO ZAVALA, individually and on behalf of all
others similarly situated, Plaintiff v. KEVIN KRUSE, et al.,
Defendants, Case No. 1:19-cv-00239-ADA-SKO (E.D. Cal.), Judge Ana
de Alba of the U.S. District Court for the Eastern District of
California grants the Plaintiff's request to seal and his amended
motion for leave to amend a First Amended Complaint.
On Feb. 19, 2019, the Plaintiff filed the putative class action
against the Defendants and Does 1 through 30, inclusive, alleging
several claims under the Employment Retirement Income Security Act.
The Plaintiff filed the First Amended Complaint ("FAC") on Aug. 16,
2019. He then filed a motion to amend the FAC on June 29, 2022, and
pursuant to the Court's order, he filed an amended motion to amend
on June 30, 2022.
Defendant GreatBanc Trust Co. did not oppose the Plaintiff's
request to amend the FAC. Defendants Kevin Kruse, the
Kruse-Western, Inc. Board of Directors, and the Administration
Committee ("the Company Defendants") filed an opposition brief on
July 20, 2022.
The Plaintiff filed a reply brief on Aug. 8, 2022. On July 14,
2022, the Company Defendants and GreatBanc filed requests to seal
relating to the Plaintiff's motion to amend. On Sept. 12, 2022, the
Defendants' requests to seal and the Plaintiff's motion to amend
were referred to a U.S. Magistrate Judge for the issuance of
findings and recommendations.
On Dec. 21, 2022, the assigned Magistrate Judge issued findings and
recommendations, recommending that the Defendants' motions to seal
and the Plaintiff's motion to amend be granted. The parties were
provided until Jan. 11, 2023, in which to file objections to the
findings and recommendations. The Company Defendants filed their
objections on Jan. 10, 2023 and the Plaintiff filed his response on
Jan. 24, 2023.
On Jan. 23, 2023, the Plaintiff filed requests to seal relating to
his response to the Company Defendants' objections to the
Magistrate Judge's findings and recommendations. He expresses that
his response should be under seal because it references many of the
same documents that have already been approved for filing under
seal. The materials contain confidential, proprietary information
regarding the Defendant's policies and business operations, and
disclosure of such information could cause the Defendants
competitive harm. For the same reasons mentioned in the Magistrate
Judge's findings and recommendations, the Court finds it
appropriate for the materials to be sealed.
In accordance with the provisions of 28 U.S.C. Section
636(b)(1)(C), Judge de Alba has conducted a de novo review of the
case. Having carefully reviewed the entire file, she finds that the
findings and recommendations are supported by the record and proper
analysis. She finds that the Plaintiffs have demonstrated that the
Second Amended Complaint ("SAC") relates back to the date of the
original pleading pursuant to Rule 15(c) of the Federal Rules of
Civil Procedure, particularly satisfying subsections 15(c)(1)(B)
and (C).
First, in their objections, the Company Defendants largely argue
that the events of Oct. 31, 2015, do not arise out of the
transaction set out in the original pleading. Judge de Alba
disagrees and finds that the two separate dates, Oct. 31, 2015, and
Nov. 4, 2015, each constitute a step of what the Plaintiffs refer
to as the 2015 ESOP Transaction.
Second, in their objections, the Company Defendants argue that most
of the newly added defendants were only added due to their alleged
involvement in the October 31, 2015, restructuring transaction. The
Plaintiff claims that 20 of the new defendants are individuals or
entities who sold their membership interests in Western Milling,
LLC to Kruse Western, Inc. on Oct. 31, 2015.
Because she finds that the Oct. 31, 2015, events are a part of the
2015 ESOP Transaction, Judge de Alba also finds that the Plaintiffs
may amend the complaint to add those defendants involved in the
Oct. 31, 2015, transaction. Given the FAC, the Plaintiff
effectively put on notice the board of directors and selling
shareholders not originally named in the action, which precludes
any prejudice against them defending the merits.
Lastly, Judge de Alba addresses the Company Defendants' argument
that the proposed SAC is futile, and that futility alone justifies
the denial of a motion to amend. She, however, finds that most of
the Company Defendants' arguments constitute a premature motion to
dismiss the SAC. She agrees with the Magistrate Judge that any
factual disputes are not appropriately resolved at this stage of
the proceedings. Therefore, the lack of futility, along with all
other factors, weighs in favor of allowing amendment of the
complaint.
Accordingly, Judge de Alba grants the Plaintiff's request to seal
and orders the parties to meet and confer on appropriate redactions
of the documents under seal, to file an unredacted copy of the
documents under seal, and to file a redacted version of the
documents publicly on the Court's docket.
The findings and recommendations issued on Dec. 21, 2022, are
adopted in full, including granting the Defendants' requests to
seal.
Judge de Alba grants the Plaintiff's amended motion for leave to
amend the FAC.
A full-text copy of the Court's March 7, 2023 Order is available at
https://tinyurl.com/yx2m7mva from Leagle.com.
LEAH DAY SPA: Nizo Suit Seeks to Recover Unpaid Minimum Wages
-------------------------------------------------------------
Zhanna Nizo, individually and on behalf of all others similarly
situated v. Leah Day Spa Inc., Ruben Shaulov and Sonya Shaulova,
Case No. 604476-2023 (N.Y. Sup., Nassau Co., March 16, 2023), seeks
compensatory damages and liquidated damages for the Defendant's
alleged violations of the New York Labor Law for failing to pay
Plaintiff the legally prescribed minimum wages and failing to
provide wage statement and recordkeeping requirements of the NYLL.
Plaintiff Nizo was employed by Leah Day Spa Inc. from or around
June 2009 until or around October 2022.
Leah Day Spa Inc. is a New York domestic business corporation,
organized under the laws of the State of New York with principal
executive offices located at 718 West Broadway, Woodmere, NY 11598.
Ruben and Sonya are the owners of Leah Day Spa Inc.[BN]
The Plaintiff is represented by:
Roman Avshalumov, Esq.
HELEN F. DALTON & ASSOCIATES, P.C.
80-02 Kew Gardens Road, Suite 601
Kew Gardens, New York 11415
Telephone: (718) 263-9591
LINKEDIN CORP: Bids to Dismiss & Stay Discovery in Crowder Granted
------------------------------------------------------------------
In the case, TODD CROWDER, et al., Plaintiffs v. LINKEDIN
CORPORATION, Defendant, Case No. 22-cv-00237-HSG (N.D. Cal.), Judge
Haywood S. Gilliam, Jr., of the U.S. District Court for the
Northern District of California grants the Defendant's motion to
dismiss and motion to stay discovery.
The lawsuit is an antitrust proposed class action against LinkedIn,
an online social network that focuses on professional connections.
The Plaintiffs subscribe to LinkedIn Premium Career, which provides
paying users with additional features. They assert that LinkedIn
has a monopoly in the professional social networking market,
allowing it to overcharge Premium subscribers.
The Plaintiffs allege that LinkedIn's monopoly is protected by a
powerful barrier to market entry comprising LinkedIn's data
centralization and aggregation, its machine learning and AI
infrastructure, and the inferred data it produces. This allegedly
prevents would-be rivals from entering the market, because without
these three components, a new entrant could not viably compete with
LinkedIn.
The Defendant allegedly strengthens this barrier and maintains its
monopoly through four categories of anticompetitive conduct. First,
it sells private user data through application programming
interfaces ("API") to exclusive third parties called "partners."
Second, it uses "technological countermeasures" to limit access to
public user information. Third, the Defendant integrated its user
data with Microsoft's Azure cloud computing system. Fourth, it
agreed with Facebook to divide markets to ensure Facebook would not
develop a competing product.
The Plaintiffs bring claims under Sections 1 and 2 of the Sherman
Act for monopolization, attempted monopolization, and market
division.
Before the Court are the Defendant's motion to dismiss and motion
to stay discovery. The Court held a hearing on the motion to
dismiss. It finds the motion to stay discovery appropriate for
disposition without oral argument and the matter is deemed
submitted.
Judge Gilliam first examines the Defendants' motion to dismiss.
The Plaintiffs' Section 1 claim is based on an alleged agreement
between LinkedIn and Facebook to ensure Facebook did not enter the
professional social networking market. The Defendant argues that
(1) the Section 1 claim is time-barred and (2) the alleged
circumstantial evidence does not plausibly establish a market
division agreement between Facebook and LinkedIn.
Because the Plaintiffs have not pled a continuing violation, Judge
Gilliam the Section 1 claim with leave to amend. To overcome the
statute of limitations, the Plaintiffs must allege an "overt act"
that occurred on or after January 13, 2018. Because he finds the
Section 1 claim as pled time-barred, Judge Gilliam does not reach
the Defendant's remaining argument.
In addition, the Plaintiffs have not plausibly alleged that the
Defendant's API agreements constitute anticompetitive conduct,
whether because the Defendant offers access to data in the first
place, restricts access to select "partners," or imposes the terms
of use the Plaintiffs describe.
Because the Plaintiffs will have a chance to amend, Judge Gilliam
notes for the sake of efficiency that, at least as currently
described in the opposition, the API terms of use do not constitute
"exclusive dealing" or other anticompetitive conduct. The terms
appear to prohibit API users from getting LinkedIn data from third
parties or through particular methods, such as scraping and
crawling.
Next, the second category of alleged anticompetitive conduct is the
Defendant's use of "technological countermeasures" that are
"deployed to limit access to data that users affirmatively seek to
make public."
Once again, Judge Gilliam finds that the Plaintiffs do not
plausibly plead why these technological countermeasures, sometimes
called "anti-scraping" measures, are anticompetitive. Given that
they concede that the Defendant was under no obligation to share
its data at all, it is unclear where the antitrust violation could
lie. Hence, Judge Gilliam holds that the Plaintiffs have not
plausibly alleged that the technological countermeasures constitute
anticompetitive conduct.
The third category of alleged anticompetitive conduct is LinkedIn's
transition to Microsoft's Azure cloud server in 2019. The
Plaintiffs allege that the integration of Azure's AI technology and
GPU hardware "significantly" and "potentially irretrievably"
fortifies the barrier to market entry.
Judge Gilliam holds that the Plaintiffs' allegations about Azure
integration do not plausibly establish anticompetitive conduct. The
Plaintiffs fail to allege that using Azure did not improve
LinkedIn's services or provide a benefit to users. Moreover, the
anticompetitive conduct was not the integration itself -- it was
that the product was designed to inhibit the use of rival browsers.
The Plaintiffs cannot avoid the requirement that they plausibly
plead anticompetitive conduct by repeatedly asserting that a
defendant's actions were part of a broader scheme.
The fourth and final category of alleged anticompetitive conduct is
a market division agreement with Facebook described above. As Judge
Gilliam explained, claims based on this conduct are time-barred.
Although the Court must consider the alleged conduct in aggregate,
this does not transform otherwise proper conduct into
anticompetitive conduct. Because each individual action alleged by
the Plaintiffs does not rise to anticompetitive conduct, their
collective sum likewise does not.
Lastly, the Plaintiffs' attempted monopolization claim is
predicated on the same alleged anticompetitive conduct as their
monopolization claim, and thus fails for the same reasons.
Because Plaintiffs have failed to plausibly plead monopolization or
attempted monopolization, Judge Gilliam dismisses the Plaintiffs'
Section 2 claim with leave to amend.
Judge Gilliam then turns to the Defendants' motion to stay. The
Defendant seeks to stay discovery until 30 days after it files an
answer.
Having found the underlying motion to dismiss warrants dismissal of
the complaint in its entirety, Judge Gilliam finds that there is
good cause under Rule 26(c) to temporarily stay discovery. He
understands that the Defendant could and likely should have sought
a stay sooner. However, given the outcome of the motion to dismiss,
the most prudent course now is to wait until it is clear if any
claims will proceed based on the Plaintiffs' amendments. He
accordingly stays discovery until otherwise ordered.
In view of his analysis, Judge Gilliam grants the motion to dismiss
and dismisses the complaint with leave to amend. The Plaintiffs may
file an amended complaint within 28 days of his order. He also
grants the motion to stay discovery. Discovery is stayed until
otherwise ordered.
A full-text copy of the Court's March 8, 2023 Order is available at
https://tinyurl.com/4vx6tjwv from Leagle.com.
LUCHARITOS CENTER: Fails to Pay Kitchen Staff's OT Wages Under FLSA
-------------------------------------------------------------------
MARIA NOJ SOL, individually and on behalf of others similarly
situated v. LUCHARITOS CENTER MORICHES, INC. d/b/a LUCHARITOS,
LUCHARITOS NATIONAL, LLC. d/b/a LUCHARITOS, LUCHARITOS BURRITO BAR,
INC., d/b/a LUCHARITOS, LUCHARITOS MINEOLA LLC d/d/b/a LUCHARITOS,
and JENNIFER LAMAINA, and MARC LAMAINA, individually, Case No.
2:23-cv-02024 (E.D.N.Y., Mar. 16, 2023) seeks to recover unpaid
overtime compensation owed to the Plaintiff and all other similarly
situated kitchen staff, pursuant the Fair Labor Standards Act and
the New York Labor Law.
The Plaintiff and her similarly situated coworkers work or have
worked at Lucharitos restaurants owned and operated by the
Defendants. The Defendants allegedly failed to compensate the
Plaintiff and the FLSA Collective at one and one-half times the
employee's wage for all hours worked in excess of 40 during any
work week, says the suit.
The Plaintiff brings this action on behalf of herself and all
similarly situated current and former non-exempt workers who elect
to opt-in to this action pursuant to the FLSA.
The Plaintiff also brings this action under the Wage Theft
Prevention Act for Defendants' failure to provide wage notices and
wage statements in violation of NYLL.
The Plaintiff seeks injunctive and declaratory relief against the
Defendants' unlawful actions, compensation for their failure to pay
overtime wages and liquidated damages, compensatory damages,
pre-judgment and post-judgment interest, and attorneys' fees and
costs, pursuant to the FLSA and NYLL.
From July 23, 2022 until December 29, 2022, the Plaintiff worked
for Defendants at Lucharitos No. 1. From November 29, 2022 until
January 8, 2023, the Plaintiff also worked at Lucharitos No. 3. The
Plaintiff's employment allegedly ended with the Defendants because
she was unlawfully terminated. She was employed as a cook.
Lucharitos Center operates in the restaurant industry.[BN]
The Plaintiff is represented by:
Jacob Aronauer, Esq.
THE LAW OFFICES OF JACOB ARONAUER
225 Broadway, 3rd Floor
New York, NY 10007
Telephone: (212) 323-6980
E-mail: jaronauer@aronauerlaw.com
MARGARITAS CAFE: Amaya Seeks Damages for Labor Law Violations
-------------------------------------------------------------
Nolvis Esperanza Maldonado Amaya, individually and on behalf of all
others similarly situated v. Margaritas Cafe VI Inc., Puglias of
Garden City Inc. and Mulberry Street Lounge Inc., and William
Martinez Case No. 2:23-cv-02031 (E.D.N.Y., March 16, 2023) seeks
compensatory damages and liquidated damages in an amount exceeding
$100,000 for the alleged violations of the Fair Labor Standards Act
and New York Labor Law as well as seeks interest, attorneys' fees,
costs, and all other legal and equitable remedies the court deems
appropriate.
The Plaintiff claims that the Defendants violated several
provisions of FLSA and NYLL including overtime pay, minimum wage,
unpaid wages, spread of hours, wage statement requirements, and
notice and recordkeeping requirements.
Amaya was employed by Margaritas Cafe as a food preparer, runner,
and busser while performing related miscellaneous duties for the
Defendants, from in or around September 2016 until in or around
December 2017. Amaya was also employed by Puglias of Garden City
Inc. and Mulberry Street Lounge Inc. as a food preparer, runner and
busser while performing related miscellaneous duties for the
Defendants, from in or around January 2018 until in or around
October 2022 with the exception at the height of pandemic from
March 2020 to May 2020.
Margaritas Cafe VI Inc. d/b/a Margaritas Cafe is a New York
domestic business corporation, organized under the laws of the
State of New York with a principal executive office located 38
Hillside Ave., Williston Park, NY 11596. Meanwhile, Puglias of
Garden City Inc. and Mulberry Street Lounge Inc. d/b/a The Cuban,
is a New York domestic business corporation, organized under the
laws of the State of New York with a principal executive office
located 987 Stewart Avenue, Garden City, NY 11530.[BN]
The Plaintiff is represented by:
Roman Avshalumov, Esq.
HELEN F. DALTON & ASSOCIATES, P.C.
80-02 Kew Gardens Road, Suite 601
Kew Gardens, NY 11415
Telephone: (718) 263-9591
MARSHALL HOTELS: Class Settlement in Link Suit Has Prelim. Approval
-------------------------------------------------------------------
Judge David N. Hurd of the U.S. District Court for the Northern
District of New York grants the unopposed motion for preliminary
approval of class action settlement in the lawsuit styled TAYLOR
LINK, Individually and on behalf of all others similarly situated,
Plaintiff v. MARSHALL HOTELS & RESORTS, INC., and MARSHALL PAYROLL
SERVICES, LLC, Defendants, Case No. 3:20-CV-805 (N.D.N.Y.).
On July 14, 2020, Named Plaintiff Taylor Link filed this putative
class action alleging her former employer, Defendants Marshall
Hotels & Resorts, Inc. and Marshall Payroll Services, LLC
("Marshall" or "Defendants"), violated New York Labor Law ("NYLL")
by, inter alia, failing to properly compensate her and other
employees for certain time worked at the Defendants' hotel in
Binghamton, New York.
On Dec. 13, 2022, the parties notified the Court they had reached a
settlement. Link now moves for: (1) preliminary certification of
the proposed class; (2) preliminary approval of the proposed
settlement; (3) approval of the class notice; and (4) an Order
scheduling a Final Approval Hearing and related deadlines. The
motion is unopposed.
Upon consideration of Link's memorandum of law and supporting
exhibits, and after reviewing the parties' Settlement Agreement and
the attached Class Notice materials, Judge Hurd grants unopposed
motion for preliminary approval of the class action settlement.
The Court finds, on a preliminary basis, the settlement
memorialized in the parties' Settlement Agreement falls within the
range of reasonableness and, therefore, meets the requirements for
preliminary approval as required by Federal Rule of Civil Procedure
23(e) and other applicable laws.
Judge Hurd grants preliminary approval of the Settlement
Agreement.
For settlement purposes only, the following Settlement Class is
certified pursuant to the Settlement Agreement and FED. R. CIV. P.
23:
all individuals who are or were employed by Defendants at
the DoubleTree by Hilton Hotel Binghamton (Hotel), located
at 225 Water Street, Binghamton, New York 13901, who worked
as front of house tipped service employees at the Hotel's
restaurant and bar from July 14, 2014, to Dec. 5, 2022.
For settlement purposes only, Named Plaintiff Taylor Link is
appointed as Class Representative, and the law firm of Schneider
Wallace Cottrell Konecky LLP is appointed as Class Counsel.
The parties are authorized to select a qualified third-party
settlement administrator to perform the duties of the Settlement
Administrator in accordance with the terms of the Settlement
Agreement.
Judge Hurd finds that the proposed Class Notice is the best
practicable means of providing notice under the circumstances of
this case and, when completed, will constitute due and sufficient
notice of the proposed settlement and the Final Approval Hearing to
all persons and entities affected by and/or entitled to participate
in the settlement, in full compliance with the notice requirements
of Federal Rule of Civil Procedure 23, due process, the
Constitution of the United States, the laws of the State of New
York, and all other applicable laws.
The Court finds that the Class Notice is accurate, objective, and
informative, and provide Class Members with the information
necessary to make an informed decision regarding their
participation in the settlement.
The Settlement Administrator is authorized to mail the Class Notice
to the Class Members as provided for in the Settlement Agreement.
The Settlement Administrator must mail the Class Notice to the
Class Members no later than fifteen (15) days after the entry of
this Order.
Class Members, who wish to opt out of the settlement, must submit
their written Opt-Out Statement no later than sixty (60) days after
the Settlement Administrator mails the Class Notice to the Class
Members. Any written objection to the settlement must be submitted
to the Settlement Administrator no later than sixty (60) days after
the Settlement Administrator mails the Class Notice to the Class
Members.
This matter is stayed other than as set forth in this Order.
The Named Plaintiff and the Defendants are ordered to carry out and
effect the settlement in accordance with the terms of the
Settlement Agreement.
The Named Plaintiff will file her motion for final approval of the
settlement, and Class Counsel shall file their motion for
attorneys' fees, costs, and expenses, and the Named Plaintiff's
service award on or before June 2, 2023.
The Final Approval Hearing will be held on June 13, 2023, at 1:00
p.m. in Utica, New York. The Final Approval Hearing may be
continued without further notice to Class Members.
The Clerk of the Court is directed to set deadlines accordingly and
terminate the pending motion.
A full-text copy of the Court's Order dated March 6, 2023, is
available at https://tinyurl.com/3yzmw5b8 from Leagle.com.
MATERNAL AND FAMILY: Chludzinski Seeks Damages for Data Breach
--------------------------------------------------------------
Tammy Chludzinski, individually and on behalf of all others
similarly situated v. Maternal and Family Health Services, Inc.,
Case No. 3:23-cv-00468-MEM (M.D. Pa., March 16, 2023) seeks
compensatory damages together with injunctive relief to remediate
the Defendant's violations of the Health Insurance Portability and
Accountability Act of 1996.
Allegedly, the Defendant has failed to properly secure and
safeguard sensitive personally identifiable information (PII)
provided by and belonging to their customers, including, without
limitation, name, addresses, dates of birth, social security
numbers, driver's license numbers, financial account/payment card
information, usernames and passwords. Additionally, the plaintiff
and class members suffered a loss of medical information and/or
health insurance information, and any other protected health
information (PHI) as protected by HIPAA.
On Jan 5, 2023, Maternal and Family Health Services, Inc. (MFHS),
through its website, stated that its security had been breached. It
also said that it had first learned of the Data Breach on April 4,
2022, and that it had been subject to a sophisticated ransomware
incident that resulted in the inadvertent exposure of information.
It is unknown what spurred Defendant to announce that its security
had been breached, considering that it had been sitting on the
information for over eight months. Furthermore, MFHS delayed
response adversely affected Plaintiff and other class members as
they could have undertaken proactive measures to secure the PII and
PHI, says the suit.
MFHS is incorporated under the laws of the Commonwealth of
Pennsylvania, with its principal office located at 15 Public
Square, Suite 600, Wilkes Barre, Pennsylvania 18701. It is a
nonprofit organization that provides healthcare and family planning
services in the Commonwealth of Pennsylvania, and operates
throughout Northeastern Pennsylvania. [BN]
The Plaintiff is represented by:
Daniel E. Bacine, Esq.
Jeffrey W. Golan, Esq.
Andrew J. Heo, Esq.
BARRACK, RODOS & BACINE
3300 Two Commerce Square
2001 Market Street
Philadelphia, PA 19103
Telephone: (215) 963-0600
Facsimile: (215) 963-0838
E-mail: dbacine@barrack.com
jgolan@barrack.com
aheo@barrack.com
- and -
John G. Emerson, Esq.
2500 Wilcrest Drive, Suite 300
Houston, TX 77042
Telephone: (800) 551-8649
Facsimile: (501) 286-4659
E-mail: jemerson@emersonfirm.com
MDL 2801: DPP Counsel Awarded $66-Mil. in Fees in Capacitors Suit
-----------------------------------------------------------------
Judge James Donato of the U.S. District Court for the Northern
District of California grants the Direct Purchaser Class Counsel's
application for $66 million in attorneys' fees in the multidistrict
litigation entitled IN RE CAPACITORS ANTITRUST LITIGATION. THIS
DOCUMENT RELATES TO: THE DIRECT PURCHASER CLASS ACTION, Master No.
3:17-md-02801-JD, Civil Action No. 3:14-cv-03264-JD (N.D. Cal.).
This long-running antitrust litigation is now fully resolved for
all class members, who did not opt out of prior settlements. The
final issue before the Court is Direct Purchaser Class Counsel's
application for Attorneys' Fees, Reimbursement of Expenses and
Service Awards ("Motion") made in connection with the Class' Motion
for Final Approval of Settlements with Settling Defendants Matsuo
Electric Co., Ltd., Nippon Chemi-Con Corp. and United Chemi-Con,
Inc.
These settlements total $165 million in cash. They follow earlier
rounds of settlements with 17 other Defendant corporate families
totaling $439,550,000, and result in a final settlement fund of
$604,550,000. The Court entered orders granting final approval of
the prior four rounds of settlements on June 27, 2017, June 28,
2018, May 16, 2019, and Nov. 6, 2020.
Class counsel for the Direct Purchaser Class have requested
attorneys' fees in the amount of $66 million. Class counsel also
request reimbursement of $3,636,429.21 in costs and expenses, and
"service awards" for the named plaintiffs.
The Court appointed Special Master Monica Ip to review the costs
requests. Special Master Ip has provided the same auditing review
of prior costs requests. She recommends an award of costs in the
amount of $2,459,577.54. Class counsel do not object to this
figure, and costs are awarded in that amount.
For attorneys' fees, the Court has used a proposed order lodged by
class counsel and modified pursuant to the Court's practices and
conclusions. The Court set out the governing standards and
discussion in a prior fees order, which apply fully here and are
incorporated by reference.
The proposed $66,000,000 in attorneys' fees amounts to 40% of the
Settlement Fund created by the present round of settlements, and a
cumulative 31.01% of the total settlements reached for the benefit
of the Class. These amounts are well within the range of reasonable
fees awards, especially in light of the complexity of these
antitrust cases, and the degree of work and skill required to
obtain highly beneficial results for the class, Judge Donato says.
Judge Donato finds that the Vizcaino factors weigh decidedly in
favor of the fees request for the same reasons stated in the prior
award order, citing Vizcaino v. Microsoft Corp., 290 F.3d 1043,
1048 (9th Cir. 2002). No class member or other person has objected
to the proposed fees award.
A lodestar cross-check supports the requested fees, Judge Donato
notes. Class counsel's cumulative lodestar as of the filing of
their motion for fees, is $103,802,430.30. Class counsel's
cumulative fee awards to date, including the present request, is
$187,490,000. Using a lodestar cross-check, the fees sought here in
addition to the attorneys' fees previously awarded by the Court for
prior settlements result in a lodestar multiplier of 1.81. This
multiplier is amply justified by the demands and duration of the
litigation, and is well within acceptable parameters, Judge Donato
points out.
Consequently, the Court concludes that the $66,000,000 fee request
is fair and reasonable. Fees in that amount are awarded to class
counsel.
For the "service awards," the Court has expressed substantial doubt
about outsized awards to the Named Plaintiffs in light of Federal
Rule of Civil Procedure 23(e)(2)(D) and fundamental fairness in not
giving such Plaintiffs many multiples of the amounts a typical
class members will recover.
Judge Donato says those concerns apply here with respect to the
proposal of awarding $100,000 to Plaintiffs Chip-Tech Ltd. and eIQ
Energy, Inc.; $75,000 to Plaintiff Dependable Component Supply
Corp.; and $50,000 to Plaintiff Walker Component Group, Inc. These
will be the first and only service awards granted in this
litigation, and class counsel has documented the work the Named
Plaintiffs invested in the case. Class counsel say that Chip-Tech
and eIQ took particularly significant actions to protect the
interests of the class by testifying twice at trial, among other
measures.
Even so, the proposed awards are excessive, Judge Donato holds. The
Court grants service awards in these amounts: $50,000 each to Chip
Tech and eIQ; $25,000 to Dependable Component; and $15,000 to
Walker Component.
A full-text copy of the Court's Order dated March 6, 2023, is
available at https://tinyurl.com/y33j5jza from Leagle.com.
MDL 2843: Court Denies NM AG's Bid to Intervene in FB Privacy Suit
------------------------------------------------------------------
Judge Vince Chhabria of the U.S. District Court for the Northern
District of California denies a motion to intervene filed by the
New Mexico Attorney General's Office in the multidistrict
litigation entitled IN RE: FACEBOOK, INC. CONSUMER PRIVACY USER
PROFILE LITIGATION. This document relates to: ALL ACTIONS, Case No.
18-md-02843-VC (N.D. Cal.).
On the eve of the hearing on the motion for preliminary approval of
this private consumer class action settlement, the New Mexico
Attorney General's Office filed a motion to intervene and asked to
be heard at the preliminary approval hearing. The Attorney
General's Office asserts that it has an interest in the matter
because it has sued Facebook in state court based on the conduct at
issue in this case. Other states (represented by Attorneys General
or local prosecutors authorized to pursue actions on behalf of
their states) have filed similar lawsuits or have initiated formal
investigations.
In the motion to intervene, the Attorney General expresses dismay
about recent statements Facebook made about the impact of the
settlement agreement on other cases challenging Facebook's conduct.
Specifically, the Attorney General complains that last week,
Facebook for the first time explicitly took the position that
certain claims asserted in the state's action will be released by
the settlement.
At the preliminary approval hearing, the Attorney General
elaborated, expressing concern that Facebook would argue in the
future that the settlement in this case would: (i) prevent states
like New Mexico from exercising its police power to recover
penalties or obtain injunctive relief based on the conduct at issue
in this case; and (ii) prevent states like New Mexico from
obtaining a financial recovery for residents, who were harmed by
the conduct at issue in this case.
Judge Chhabria notes that it should be obvious to the New Mexico
Attorney General that a private class action settlement cannot
prevent a state from pursuing a lawsuit against the Defendant based
on the same conduct to vindicate its police powers (for example, to
impose penalties or obtain injunctive relief). But it should be
equally obvious that Facebook could argue that New Mexico is barred
from obtaining a financial recovery on behalf of residents, who
participated in this class action settlement.
Because this should not have been a surprise to the New Mexico
Attorney General, any concerns about the issue should have been
raised long ago, Judge Chhabria holds.
More importantly, Judge Chhabria points out, the possibility that
the settlement proposed in this case could prevent states from
recovering money on behalf of residents based on the same conduct
does not seem like a real concern. Perhaps if there were a
likelihood that states could recover a materially larger amount for
their residents, that would be a basis for rejecting the proposed
settlement. But that does not seem to be true here--indeed, the New
Mexico Attorney General has not asked the Court to reject the
settlement on this basis.
Therefore, the Court is left wondering why the Attorney General has
moved to intervene in the case. That motion is denied.
Nonetheless, the Plaintiffs' motion for preliminary approval
asserts that only the cases in this MDL will be affected by the
proposed settlement. Judge Chhabria says that statement may well be
erroneous because it's possible that states will be precluded from
pursuing a financial recovery for residents, who are members of
this settlement class.
The Court assumes that other states with actions pending against
Facebook are fully aware of this possibility and do not believe it
is a reason to reject the proposed settlement. But in an abundance
of caution, and in light of the misstatement contained in the
motion for preliminary approval, the Court will allow an additional
period for any state with an interest in this matter to file an
objection to the settlement, or to request that the proposed notice
to class members be altered to disclose the potential effect of the
settlement on any actions by states to recover money on behalf of
their residents. Any such filing is due within 14 days of this
order.
Judge Chhabria says the Plaintiffs and Facebook are also welcome to
file supplemental briefs within 21 days of this order. The Court
will issue a ruling on the motion for preliminary approval promptly
thereafter.
The Plaintiffs must serve this order on counsel of record for any
state that currently has a lawsuit against Facebook based on the
conduct at issue in this case. This includes cases where a local
prosecutor or city attorney has brought an action in the name of
the state or its people. The Plaintiffs must file a proof of
service within 3 days of this order.
A full-text copy of the Court's Order dated March 6, 2023, is
available at https://tinyurl.com/32cs97tm from Leagle.com.
MDL 3010: Court Grants Bid to Seal Memo in Google Advertising Suit
------------------------------------------------------------------
The U.S. District Court for the Southern District of New York
grants the Plaintiffs' Motion for Leave to file their Memorandum of
Law in Opposition to Defendant Google LLC's Motion to Dismiss SPX's
Consolidated Amended Class Action Complaint Under Seal in the
multidistrict litigation captioned IN RE: GOOGLE DIGITAL
ADVERTISING ANTITRUST LITIGATION. THIS DOCUMENT RELATES TO: SPX
Total Body Fitness LLC, d/b/a The Studio Empower, on behalf of
itself and all others similarly situated, Plaintiff, and
SKINNYSCHOOL LLC d/b/a MARIA MARQUES FITNESS and MINT ROSE DAY SPA
LLC, on behalf of themselves and all others similarly situated,
Plaintiffs v. GOOGLE LLC, Defendant, Case Nos. 21-md-3010 (PKC),
1:21-cv-06870-PKC, 1:21-cv-07045-PKC (S.D.N.Y.).
The Court provisionally approves the Memorandum submitted to the
Court and filed on the public docket with redactions in accordance
with the sections highlighted in yellow on the under seal version
submitted to this Court, leaving in place redactions only related
to documents designated confidential or higher by Google LLC
pursuant to the Protective Order.
A full-text copy of the Court's Order dated March 6, 2023, is
available at https://tinyurl.com/4k9sssuy from Leagle.com.
MERCEDES-BENZ: Forte Sues Over Vehicle's Defective Subframes
------------------------------------------------------------
VALERIE JANE FORTE; and DR. DONNA ANNE STRIGARI, individually and
on behalf of all others similarly situated, Plaintiffs v.
MERCEDES-BENZ USA, LLC; and MERCEDES-BENZ GROUP AG, Defendants,
Case No. 1:23-cv-01133-SEG (N.D. Ga., March 15, 2023) is an action
individually for themselves and on behalf of all persons who
purchased certain vehicles equipped with uniform and uniformly
defective rear subframes designed, manufactured, distributed,
warranted, marketed, and sold by Mercedes-Benz USA, LLC and
Mercedes-Benz Group AG (collectively, "Mercedes").
According to the Plaintiff in the complaint, the Class Vehicles'
rear subframes have a dangerous safety defect ("Rear Subframe
Defect") that causes the rear subframes, attached components, and
nearby parts to prematurely rust or corrode, which (a) adversely
affects the drivability of the Class Vehicles; (b) causes corrosion
of other components on the underside of the Class Vehicles,
including brake lines and rear axle; and (c) can cause the rear
subframes to fail while the Class Vehicles are in motion, resulting
in a sudden, unexpected loss of control for the driver.
Because of the faulty design or manufacturing, the subframes can
prematurely experience severe corrosion, especially near the
attachment points for the suspension components, including the
control arms that link the rear subframe to other parts of the
suspension and steering system, including the rear wheels. The
control arms, along with the subframe, are the main stabilizing
force of a vehicle's suspension, says the suit.
MERCEDES-BENZ USA, LLC was founded in 2000. The Company's line of
business includes the wholesale distribution of new and used
passenger automobiles, trucks, trailers, and other motor vehicles.
[BN]
The Plaintiff is represented by:
Ketan A. Patel, Esq.
CORPUS LAW PATEL, LLC
P.O. Box 724713
Atlanta, GA 31139
Telephone: (678) 597-8020
Email: kp@corpus-law.com
- and -
Ariana J. Tadler, Esq.
Tony Kim, Esq.
TADLER LAW LLP
22 Bayview Avenue
Manhasset, NY 11030
Telephone: (212) 946-9300
Email: atadler@tadlerlaw.com
tkim@tadlerlaw.com
- and -
A.J. de Bartolomeo, Esq.
TADLER LAW LLP
P.O. Box 475847
3749 Buchanan St.
San Francisco, CA 94123
Telephone: (415) 226-0260
Email: ajd@tadlerlaw.com
MOHAWK INDUSTRIES: $60MM Class Settlement to be Heard on May 31
---------------------------------------------------------------
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF GEORGIA
ROME DIVISION
PUBLIC EMPLOYEES' RETIREMENT
SYSTEM OF MISSISSIPPI, individually and
on behalf of all others similarly situated,
Plaintiff,
v.
MOHAWK INDUSTRIES, INC. and JEFFREY
S. LORBERBAUM,
Defendants.
Civ. A. No. 4:20-cv-00005-VMC
SUMMARY NOTICE OF (I) PENDENCY OF CLASS ACTION AND PROPOSED
SETTLEMENT; (II) SETTLEMENT HEARING; AND (III) MOTION FOR
ATTORNEYS' FEES AND LITIGATION EXPENSES
TO: All persons or entities who purchased or otherwise acquired
publicly traded common stock of Mohawk Industries, Inc. ("Mohawk")
during the period from April 28, 2017 through July 25, 2019,
inclusive (the "Class Period"), and who were damaged thereby (the
"Class").
Certain persons and entities are excluded from the Class by
definition, as set forth in the full printed Notice of (I) Pendency
of Class Action and Proposed Settlement; (II) Settlement Hearing;
and (III) Motion for Attorneys' Fees and Litigation Expenses (the
"Notice").
PLEASE READ THIS NOTICE CAREFULLY. YOUR RIGHTS MAY BE AFFECTED BY
A CLASS ACTION LAWSUIT PENDING IN THIS COURT.
YOU ARE HEREBY NOTIFIED, pursuant to Rule 23 of the Federal Rules
of Civil Procedure and an Order of the United States District Court
for the Northern District of Georgia (the "Court"), that the
above-captioned litigation (the "Action") is pending in the Court.
YOU ARE ALSO NOTIFIED that Lead Plaintiff, Public Employees'
Retirement System of Mississippi, has reached a proposed settlement
of the Action for $60,000,000 in cash (the "Settlement") on behalf
of the Class, that, if approved, will resolve all claims in the
Action.
A hearing will be held on May 31, 2023, at 10:00 a.m., before the
Honorable Victoria M. Calvert, either in person at the United
States District Court for the Northern District of Georgia,
Courtroom 2105, Richard B. Russell Federal Building and United
States Courthouse, 75 Ted Turner Drive, SW, Atlanta, Georgia
30303-3309, or by telephone or videoconference (in the discretion
of the Court) for the following purposes: (a) to determine whether
the proposed Settlement on the terms and conditions provided for in
the Stipulation and Agreement of Settlement dated January 13, 2023
(the "Stipulation") is fair, reasonable, and adequate to the Class,
and should be finally approved by the Court; (b) to determine
whether a Judgment, substantially in the form attached as Exhibit B
to the Stipulation, should be entered dismissing the Action with
prejudice; (c) to determine whether the proposed Plan of Allocation
for the proceeds of the Settlement is fair and reasonable and
should be approved; (d) to determine whether the motion by Lead
Counsel for an award of attorneys' fees and Litigation Expenses
should be approved; and (e) to consider any other matters that may
properly be brought before the Court in connection with the
Settlement.
If you are a member of the Class, your rights will be affected by
the pending Action and the Settlement, and you may be entitled to
share in the Settlement Fund. If you have not yet received the
Notice and Proof of Claim and Release Form ("Claim Form"), you may
obtain copies of these documents by contacting the Claims
Administrator by mail at Mohawk Industries Securities Litigation,
c/o JND Legal Administration, P.O. Box 91096, Seattle, WA 98111; by
telephone at 877-415-0648; or by email at
info@MohawkIndustriesSecuritiesLitigation.com. Copies of the
Notice and Claim Form can also be downloaded from the website
maintained by the Claims Administrator,
www.MohawkIndustriesSecuritiesLitigation.com.
If you are a member of the Class, in order to be eligible to
receive a payment under the proposed Settlement, you must submit a
Claim Form either by mail or online, in accordance with the
instructions set forth in the Claim Form. If mailed, the Claim
Form must be postmarked no later than July 5, 2023. If submitted
online at www.MohawkIndustriesSecuritiesLitigation.com, the Claim
Form must be submitted no later than July 5, 2023. If you are a
Class Member and do not submit a proper Claim Form, you will not be
eligible to share in the distribution of the net proceeds of the
Settlement, but you will nevertheless be bound by any releases,
judgments, or orders entered by the Court in connection with the
Settlement.
If you are a member of the Class and wish to exclude yourself from
the Class, you must submit a request for exclusion either by mail
or email, in accordance with the instructions set forth in the
Notice. If mailed, the request for exclusion must be postmarked no
later than May 10, 2023. If submitted by email, the request for
exclusion must be submitted no later than May 10, 2023. If you
properly exclude yourself from the Class, you will not be bound by
any judgments or orders entered by the Court in the Action and you
will not be eligible to share in the proceeds of the Settlement.
Any objections to the proposed Settlement, the proposed Plan of
Allocation, or Lead Counsel's motion for an award of attorneys'
fees and Litigation Expenses, must be filed with the Court and
delivered to Lead Counsel and Representative Defendants' Counsel no
later than May 10, 2023, in accordance with the instructions set
forth in the Notice.
Please do not contact the Court, the Clerk's office, Defendants, or
their counsel regarding this notice. All questions about this
notice, the proposed Settlement, or your eligibility to participate
in the Settlement should be directed to Lead Counsel or the Claims
Administrator.
Inquiries, other than requests for the Notice and Claim Form,
should be made to Lead Counsel:
Jonathan D. Uslaner, Esq.
Bernstein Litowitz Berger & Grossmann LLP
2121 Avenue of the Stars, Suite 2575
Los Angeles, CA 90067
800-380-8496
settlements@blbglaw.com
Requests for the Notice and Claim Form should be made to:
Mohawk Industries Securities Litigation
c/o JND Legal Administration
P.O. Box 91096
Seattle, WA 98111
877-415-0648
info@MohawkIndustriesSecuritiesLitigation.com
www.MohawkIndustriesSecuritiesLitigation.com
By Order of the Court
N-ABLE INC: Faces Seavitt Stockholder Class Action in Delaware
--------------------------------------------------------------
Brian Seavitt, on behalf of himself and all other
similarly-situated stockholders of N-ABLE, INC. v. N-ABLE, INC.,
Case No. 2023-0326 (Del. Ch., March 16, 2023), brings this verified
stockholder class action Complaint for Declaratory Relief against
N-able for the alleged violations of several provisions of the
General Corporation Law of the State of Delaware.
Mr. Seavitt brings this action because N-able is presently flouting
this foundational principle of Delaware law through a contractual
arrangement designed to entrench and perpetuate certain favored
stockholders' control over N-able's business and affairs.
Specifically, in violation of DGCL Section 141(a), N-able has
provided certain favored stockholders -- affiliates of the private
equity (PE) firms Silver Lake Group, LLC and Thoma Bravo, LLC, and
together with Silver Lake PE investors -- with a contractual power
to control the most important decisions and functions properly
entrusted to the Company's Board under our corporate system.
Pursuant to a Stockholders' Agreement, N-able has granted the PE
Investors with a contractual veto power over a wide array of
corporate decisions including: hiring or terminating the Company's
Chief Executive Officer, approving change in control transactions,
acquiring or disposing of assets or entering into joint ventures
with a value in excess of $150 million, incurring indebtedness in
an aggregate principal amount in excess of $150 million, initiating
any liquidation, dissolution, bankruptcy or other insolvency
proceeding involving the Company or any of its significant
subsidiaries, and increasing or decreasing the size of the Board.
Seavitt accordingly seeks a declaratory judgment from this court
that the terms of the Stockholders' Agreement providing the PE
Investors with a contractual power to control the most important
decisions and functions of N-able and the removal of director
provision of the Certificate are invalid and unenforceable under
Delaware law.
N-able is a Delaware Corporation headquartered in Burlington,
Massachusetts. On July 19, 2021, N-able was spun off from
SolarWinds and became a separate public company, with its common
stock trading on the NYSE under the ticker symbol NABL. N-able is a
controlled company, with the PE Investors owning approximately 62%
of the stock of N-able. In connection with the spinoff, the PE
Investors were granted registration rights for their shares.[BN]
The Plaintiff is represented by:
David Wales, Esq.
SAXENA WHITE P.A.
10 Bank Street, 8th Floor
White Plains, NY 10606
Telephone: (914) 437-8551
- and -
Adam Warden, Esq.
SAXENA WHITE P.A.
7777 Glades Road, Suite 300
Boca Raton, FL 33434
Telephone: (561) 394-3399
- and -
Julie Goldsmith Reiser, Esq.
COHEN MILSTEIN SELLERS & TOLL PLLC
1100 New York Avenue N.W. Fifth Floor
Washington, DC 20005
Telephone: (202) 408-4699
- and -
Richard A. Speirs, Esq.
COHEN MILSTEIN SELLERS & TOLL PLLC
88 Pine Street, 14th Floor
New York, NY 10005
Telephone: (212) 838-7797
- and -
Thomas Curry, Esq.
Tayler D. Bolton, Esq.
824 N. Market Street, Suite 1003
Wilmington, DE 19801
Telephone: (302) 485-0483
NAVIENT SOLUTIONS: Proposed Class Certification Order Due March 31
------------------------------------------------------------------
In the case, IN THE MATTER OF: KENNETH JOSEPH WOODARD, CHAPTER 13,
Debtor(s). KENNETH JOSEPH WOODARD, on behalf of himself and all
others similarly situated, Plaintiff(s) v. NAVIENT SOLUTIONS, LLC,
and NAVIENT CREDIT FINANCE CORPORATION, Defendants(s), Case No. BK
08-81442, Adv. No. A21-8023-TLS (D. Neb.), Judge Thomas L. Saladino
of the U.S. Bankruptcy Court for the District of Nebraska will
grant the Plaintiff's motion for class certification by the terms
of an order to be submitted no later than March 31, 2023.
The matter is before the court on the Plaintiff's motion for class
certification and opposition by the Defendants. Hearing was held on
Oct. 18, 2022. The motion was deferred pending a decision on the
Defendants' motion to compel arbitration. The Court ruled on that
motion on Dec. 14, 2022. No party filed an appeal, so the motion
was taken under advisement.
It is an adversary proceeding seeking relief from the Defendants'
alleged violations of the discharge injunction of 11 U.S.C. Section
524 through the collection of discharged student loan debt. The
Plaintiff asks the Court to certify a class of litigants composed
of consumer education loan borrowers who filed for bankruptcy
protection within the Eighth Circuit, received discharge orders,
and were subject to post-discharge collection efforts by the
Defendants.
The Plaintiff (and the proposed class members) seek, inter alia, a
declaratory judgment that the class members' loans were discharged
upon entry of discharge orders in their bankruptcy cases,
injunctive relief prohibiting the defendants from continuing to
collect from the debtors on discharged debts, and restitution or
disgorgement of funds collected on the discharged debts.
The first question to be addressed is the Court's jurisdiction and
authority over a circuit-wide class action. The Plaintiff (and by
extension, the proposed class) seeks to enforce the discharge
injunction of 11 U.S.C. Section 524(a), prohibiting creditors from
taking steps to collect on debts that were discharged in
bankruptcy. The parties do not dispute this court's subject-matter
jurisdiction over bankruptcy cases. Navient does, however,
challenge this Court's authority to enforce any discharge orders
other than ones it entered.
Judge Saladino the Court has authority to enforce discharge
injunctions entered by other judges and other courts. He says when
the same, systematic violation, for the same systematic reason, is
alleged with respect to the breach of many identical, 'not
detailed' discharge orders, a court's application of that objective
standard would not necessarily undercut 'judicial process,'
jurisdictionally or otherwise.
Navient also asserts that by signing the promissory note for his
career training loan, the Plaintiff agreed to waive his ability to
participate in any class action upon the invocation of either
party's election to arbitrate issues regarding the loan. It
attempted to invoke its arbitration rights upon filing its
opposition to the motion to certify the class and subsequently
filed a motion to compel arbitration.
Judge Saladino finds that Woodard's promissory note contains no
such separate or explicit class action waiver. Instead, the waiver
is embedded in the arbitration clause and by its plain language
applies only in the context of the arbitration of the parties'
claims. Because the arbitration clause is inapplicable, the class
action waiver does not apply.
The next matter to be addressed concerns the necessary elements of
a class action -- numerosity, commonality, typicality, and adequacy
of representation. There is little serious dispute that these four
elements of Rule 23(a) have been met.
Judge Saladino finds that the Plaintiff has established under the
elements of Rule 23 that a class action should be approved in the
litigation as an efficient and equitable method of resolving the
issue of whether Navient has violated the discharge injunction and,
if so, what remedies are responsive to that violation. Given the
specific requirements under Rule 23(c) for the contents of the
order certifying the class and for giving notice to the class, it
would be helpful to the court if the Plaintiff would prepare and
submit a proposed order and form of notice to the class.
For these reasons, the Plaintiff's motion for class certification
will be granted by the terms of an order to be submitted. The Order
will not be final for purposes of appeal until such time as the
class action order to be submitted is entered by the Court on the
docket. The Plaintiff will confer with the Defendants and prepare
and submit to the Court a proposed order and class notice by March
31, 2023.
A full-text copy of the Court's March 8, 2023 Order is available at
https://tinyurl.com/57fvpvvy from Leagle.com.
NETFLIX INC: Georgia App. Affirms Dismissal of Gwinnett County Suit
-------------------------------------------------------------------
In the case, GWINNETT COUNTY, et al. v. NETFLIX, INC., et al.,
A22A1172 (Ga. App.), the Court of Appeals of Georgia, Fifth
Division, affirms the order of the trial court granting the
Defendants' motions to dismiss.
Appellants Gwinnett County, City of Brookhaven, and the Unified
Government of Athens-Clarke County filed a putative class action,
seeking declaratory and other relief against several streaming
service providers: Defendants Netflix, Inc.; Hulu, LLC; Disney DTC,
LLC; DIRECTV, LLC; DISH Network Corp.; and DISH Network L.L.C. In
their petition, the Appellants alleged that the Defendants violated
Georgia's Consumer Choice for Television Act, OCGA 36-76-1 et seq.,
by providing streaming video services to Georgia customers without
obtaining franchises and paying franchise fees to local governments
as required by the Act.
In 2007, the General Assembly passed the TV Act, which creates a
framework for cable operators and video service providers to obtain
state franchises from the Secretary of State or to negotiate
directly with municipal or county franchising authorities for
service areas in which the providers deliver "cable service" or
"video service." "Video service" is defined as "the provision of
video programming through wireline facilities located at least in
part in the public rights of way without regard to delivery
technology, including Internet protocol technology." Excepted from
this definition is "video programming provided as part of and via a
service that enables users to access content, information, e-mail,
or other services offered over the public Internet."
Under the TV Act, local governing authorities are permitted to
conduct, no more than once annually, audits of the business records
of the state franchise holder to the extent necessary to ensure
payment in accordance with this Code section. If the audit reveals
a discrepancy in the amount of franchise fees owed, an action may
be brought in a court of competent jurisdiction by an affected
local governing authority seeking to recover an additional amount
alleged to be due.
In November 2020, the Appellants filed a petition in the Superior
Court of Gwinnett County seeking class certification on behalf of
themselves and other similarly situated local governments,
requesting declaratory and other relief against the Defendants, and
asserting that the Defendants are providing "video service" without
complying with the TV Act's requirements.
Specifically, the Appellants alleged that the Defendants violated
the TV Act by failing to seek franchise authorization (OCGA Section
36-76-3(a)(1)), give notice of their intent to provide service
within the Appellants' geographic boundaries (OCGA Section
36-76-4(c)), or pay franchise fees as required under the Act (OCGA
Section 36-76-6). They also claimed the Defendants' failure to
obtain franchises and pay associated fees violated various local
ordinances.
As relevant in the matter, the Appellants asked the trial court for
(1) a declaration that the Defendants provide "video service"
within the meaning of the TV Act, they have failed to comply with
the Act, and they owe franchise fees dating back to July 1, 2007;
(2) an accounting of all monies, including interest and penalties,
the Defendants owe the Appellants and all putative class members;
and (3) an injunction restraining the Defendants from engaging in
business within the Appellants' and class members' respective
geographic boundaries and deriving gross revenues therefrom without
paying the required franchise fees. And finally, (4) the Appellants
raised a claim for unjust enrichment, alleging that the Defendants
have received the benefit of doing business in the Appellants' and
other class members' jurisdictions without complying with their
statutory obligations.
DIRECTV removed the case to federal court in January 2021, and, in
August 2021, the federal court remanded the case to the trial court
under the doctrine of comity abstention. Thereafter, the Defendants
moved to dismiss the complaint. In addition to filing a motion to
dismiss the Appellants' complaint, Netflix raised a counterclaim
under 42 USC Section 1983, alleging that the imposition of
franchise fees would violate its civil and constitutional rights.
After a hearing, the trial court granted the Defendants' motions,
dismissing the complaint with prejudice in February 2022.
Specifically, the court ruled that the Appellants did not have an
express or implied right of action under the TV Act to pursue their
claims, and the Appellants had failed to allege essential elements
of the limited causes of action that do exist under the Act. Within
this ruling, the court noted that the TV Act applies only to
"franchise holders," and the Appellants' claims are premised on the
allegation that the Defendants do not hold state franchises. The
court also determined that the TV Act does not apply to the
Defendants because they are "non-facilities-based" streaming
services, rather than "facilities-based" services, such as cable or
telephone companies that construct or operate networks in the
Appellants' public rights of way.
Alternatively, the trial court ruled that even if the TV Act could
reach non-facilities-based streaming content, because the
Defendants provide access to their streaming video content via the
public Internet, they are excluded from the definition of "video
service providers," under the public Internet exception and
therefore the Act does not apply. Citing OCGA Section
36-76-6(a)(2), the trial court also found that the Appellants'
claim for fees is barred by their failure to allege that they
provided the Defendants with the required notice.
As to the Appellants' remaining claims for declaratory judgment,
accounting, and injunctive relief, the trial court ruled that these
claims were due to be dismissed because the Appellants lacked a
cause of action under the TV Act. Finally, the court "conditionally
dismissed" Netflix's counterclaim and denied as moot the
Appellants' motion to dismiss Netflix's counterclaim. The appeal
followed.
First, the Appellants argue that the trial court erred in
concluding that the TV Act does not provide them with a cause of
action against the Defendants.
The Court of Appeals concludes that the Appellants' allegations are
insufficient to plausibly suggest that the Defendants operate
networks in the Appellants' rights of way, and they concede as much
on appeal. And, considering the fact that the TV Act's franchise
fee obligation arises only in connection with the issuance of a
state franchise, over which municipalities and counties have no
authority, it concludes that even if the TV Act imposes duties on
certain video service providers to obtain franchises, the
Appellants lack standing to sue the Defendants for breaching those
duties.
Next, the Appellants argue that, even if they lack a right of
action under the TV Act, their remaining claims -- for declaratory
judgment, injunctive relief, accounting, and unjust enrichment --
remain viable. The Defendants counter that the Appellants' lack of
a right of action to enforce the TV Act against the Defendants is
fatal to these additional claims.
The Court of Appeals finds that these remaining claims fail. Among
other things, it says the Appellants' unjust enrichment claim is
duplicative of their allegations that the Defendants violated the
TV Act. Because the Defendants were not obligated to pay franchise
fees to the Appellants (as they were not franchise holders), it
necessarily follows that the Defendants were not unjustly enriched
by their failure to pay such fees. Furthermore, the Appellants
alleged unjust enrichment as a separate and distinct cause of
action and not as an alternate remedy for a failed contract.
Therefore, this claim fails as a matter of law.
Lastly, with Netflix's consent, the trial court "conditionally
dismissed" Netflix's counterclaim and denied as moot the
Appellants' motion to dismiss the counterclaim. The Appellants
argue that because the trial court's dismissal order should be
reversed, the portion of its order mooting their motion to dismiss
Netflix's counterclaim should be reversed as well. However, because
it affirms the trial court's dismissal of the Appellants' petition,
the Court of Appeals likewise affirms the court's dismissal of
Netflix's counterclaim.
Based on its conclusion that the Appellants lack a cause of action
under the TV Act, the Court of Appeals need not address their
remaining arguments.
Hence, the judgment affirmed.
A full-text copy of the Court's March 8, 2023 Order is available at
https://tinyurl.com/4j4fxe6t from Leagle.com.
NORFOLK SOUTHERN: Bucks County Sues Over Securities' Violations
---------------------------------------------------------------
Bucks County Employees Retirement System, on behalf of itself and
all others similarly situated v. Norfolk Southern Corporation, Alan
H. Shaw, James A. Squires, and Mark R. George, Case No.
2:23-cv-00982-MHW-KAJ (S.D. Ohio, March 16, 2023), seeks to pursue
remedies against the defendants under Sections 10(b) and 20(a) of
the Securities Exchange Act of 1934 and Rule 10b-5.
According to the complaint, Norfolk Southern's periodic financial
filings during the Class Period failed to disclose known trends and
uncertainties and the actual risks arising from the Company's lax
safety culture and implementation of PSR in violation of Item 303
and Item 105. Indeed, the purported risk disclosures provided in
Norfolk Southern's periodic financial filings were themselves
materially misleading because they created the false and misleading
impression that Norfolk Southern had adequately addressed the risks
discussed and failed to disclose the extent of safety problems that
had already occurred at the Company.
On March 15, 2023, the price of Norfolk Southern stock fell to a
low of less than $203 per share--19% below the price of the stock
prior to the East Palestine train derailment--as a result of the
numerous disclosures and revelations regarding the East Palestine
and Springfield derailments and other revelations regarding Norfolk
Southern's true operations, which stood in contrast to defendants'
Class Period representations.
As a result of the defendant's wrongful acts and omissions, and the
precipitous declines in the market value of Norfolk Southern stock,
the plaintiff and other Class members have suffered significant
losses and damages for which they seek redress through this action,
says the suit.
Norfolk Southern is a rail transportation company. The Company's
common stock is listed on the New York Stock Exchange under the
ticker symbol "NSC."[BN]
The Plaintiff is represented by:
Joseph F. Murray, Esq.
MURRAY MURPHY MOUL + BASIL LLP
1114 Dublin Road
Columbus, OH 43215
Telephone: (614) 488-0400
Facsimile: (614) 488-0401
Email: murray@mmmb.com
- and -
Samuel H. Rudman, Esq.
ROBBINS GELLER RUDMAN & DOWD LLP
58 South Service Road, Suite 200
Melville, NY 11747
Telephone: (631)367-7100
Facsimile: (631) 367-1173
Email: srudman@rgrdlaw.com
- and -
Richard Gonnello, Esq.
ROBBINS GELLER RUDMAN & DOWD LLP
420 Lexington Avenue, Suite 1832
New York, NY 10170
Telephone: (212) 432-5100
Email: rgonnello@rgrdlaw.com
O'REILLY AUTO: Class Settlement in Soto Suit Wins Final Approval
----------------------------------------------------------------
Judge Jesus G. Bernal of the U.S. District Court for the Central
District of California grants the Plaintiff's unopposed motion for
final approval of class action settlement and motion for attorneys'
fees and costs in the lawsuit entitled MARTIN MARTINEZ SOTO, an
individual, on behalf of himself and others similarly situated,
Plaintiff v. O'REILLY AUTO ENTERPRISES, LLC; and DOES 1 thru 50,
inclusive, Defendants, Case No. 5:20-cv-00214-JGB-KK (C.D. Cal.).
The Court grants final approval to the parties' Settlement. The
parties will perform their obligations pursuant to the terms of the
Agreement and this Order.
The Plaintiff's request for $237,500 in attorneys' fees and
$10,930.13 in litigation costs is granted. The Plaintiff's request
for an incentive award of $7,500 is granted.
All FCRA Class Members, who did not validly and timely request
exclusion from the settlement, have released their claims against
the Released Parties, as defined in the Agreement.
Except as to any FCRA Class Members, who have validly and timely
requested exclusion, Judge Bernal holds that this action is
dismissed with prejudice, with all parties to bear their own fees
and costs, except as set forth herein and in the prior orders of
the Court.
Without affecting the finality of the Order, the Court retains
jurisdiction over the parties, including FCRA Class Members, for
the purposes of construing, enforcing, and administering the Order
and Judgment, as well as the Agreement itself.
The Clerk is directed to enter this Judgment and close the case.
A full-text copy of the Court's Judgment dated March 6, 2023, is
available at https://tinyurl.com/4s9nhcxv from Leagle.com.
OCWEN LOAN: PHH's Bid to Enforce Final Judgment in Lee Partly OK'd
------------------------------------------------------------------
In the case, JENNIFER LEE, et al., on behalf of themselves and all
others similarly situated, Plaintiffs v. OCWEN LOAN SERVICING, LLC,
et al., Defendants, Case No. 0:14-cv-60649-GOODMAN (S.D. Fla.),
Magistrate Judge Jonathan Goodman of the U.S. District Court for
the Southern District of Florida, Ft. Lauderdale Division:
a. grants in part and denies in part PHH Mortgage Corp.'s
motion to enforce the Final Judgment;
b. denies Ocwen's request for attorney's fees and costs;
c. denies without prejudice Ocwen's request for contempt
relief and with leave to refile if Charles Bishop does not
comply with the Order; and
d. denies as moot Bishop's Motion to Update the Court as to
the Court's Order of Aug. 4, 2022.
Bishop continues to pursue in state court claims foreclosed by a
class action settlement approved by the Court. But his dogged
attitude has also led to the pursuit of some claims which are not
barred (or which may not be barred) by the settlement. That
relentless approach may ultimately be unproductive, but, for now,
it has led to a ruling permitting him to litigate those few
still-available claims in state court.
The background underlying the discussion of Bishop's tenacity
begins in 2014, when the Plaintiff in the instant case, Jennifer
Lee, filed a putative class action lawsuit which ultimately, years
later, led to the Defendant-filed motion to enforce the final
judgment at issue in the present Order. Noting that its counsel
asked Bishop's attorney to dismiss all of his litigation, the
Defendant's motion contends, in a sub-headline, that "Bishop
Refuses To Comply With The Relitigation Injunction." In other
words, the Defendant implicitly suggests that Bishop is being
unreasonably stubborn, not merely resolute.
PHH, as successor by merger to Ocwen, filed the instant motion [ECF
No. 201] seeking to enforce the Sept. 14, 2015 Final Judgment [ECF
No. 185] against Bishop.
Defendant PHH seeks an Order: (1) enforcing the Final Judgment and
prohibiting Bishop from proceeding with his state law claims; (2)
requiring Bishop to show cause why he should not be held in
contempt of Court for knowingly violating the injunction provisions
of the Final Judgment; and (3) awarding Ocwen its damages,
including reasonable attorney's fees and costs.
In 2014, Lee filed a putative class action in the U.S. District
Court for the Southern District of Florida on behalf of herself and
all others similarly situated. The action was brought against
Ocwen, Assurant, Inc., and American Security Insurance Company and
alleged a lender-placed insurance ("LPI") scheme which resulted in
kickbacks (disguised as commissions and other benefits) that
artificially inflated LPI premium rates.
The parties entered into a Settlement Agreement. Judge Goodman
issued a Report and Recommendations on Jan. 13, 2015, recommending
preliminary approval of the Class Action Settlement. The parties
then consented to Judge Goodman conducting all future proceedings
and the District Court issued an order of full referral.
On Jan. 23, 2015, Judge Goodman approved and adopted the Report and
Recommendations and granted the motion for preliminary approval. He
provisionally certified the Settlement Class for settlement
purposes, approved the procedure for giving Class Notice to the
Settlement Class, and set a final approval hearing.
On June 11, 2015, the Court held a final approval hearing pursuant
to Federal Rule of Civil Procedure 23(e)(1)(A). It considered the
parties' request that it approve the proposed class action
settlement, overrule the settlement objections, and approve the
Class Counsel's fee application.
After notice to the Class Members and the expiration of an
opportunity for class members to opt out, the Court approved the
settlement on Sept. 14, 2015 in a 75-page Order overruling all
objections and approving in full the Class Action Settlement.
It certified the following Settlement Class: All borrowers in the
United States who, within the Settlement Class Period, were charged
by Ocwen under a hazard, flood, flood gap or wind-only LPI Policy
for residential property, and who, within the Settlement Class
Period, either (a) paid to Ocwen the Net Premium for that LPI
Policy or (b) did not pay to and still owe Ocwen the Net Premium
for that LPI Policy.
The Court defined the Settlement Class Period as "commencing on
Jan. 1, 2008 through and including Jan. 23, 2015. On the same day,
the Court entered a Final Judgment, dismissing the Class Action
with prejudice. It retained jurisdiction over the construction,
interpretation, consummation, implementation, and enforcement of
the Settlement Agreement, including jurisdiction to enter such
further orders as may be necessary or appropriate.
On May 21, 2013, Raymond James Bank, NA filed a foreclosure action
against Bishop in the Circuit Court of the Seventeenth Judicial
Circuit in and for Broward County, Florida, Case No.
CACE-13-012487. The foreclosure complaint alleged that the mortgage
issued to Bishop had been breached in that the payment due and
payable on Oct. 1, 2012 and all subsequent payments had not been
paid. The parties reached a settlement and the Foreclosure Action
ended on June 18, 2015 when Raymond James filed a notice of
voluntary dismissal without prejudice and discharge of lis
pendens.
Approximately 22 months after the Final Judgment in Lee, on July 6,
2017, Bishop filed a lawsuit against Ocwen in the Circuit Court of
the Seventeenth Judicial Circuit in and for Broward County,
Florida, Case No. CACE-17-012681 (the "2017 Lawsuit"). At the time
of the bench trial, the operative complaint in the 2017 Lawsuit was
the First Amended Complaint.
Bishop filed a Second Amended Complaint and later moved for leave
to file a Third Amended Complaint. Over Ocwen's opposition, the
state court granted Bishop's motion and the Third Amended Complaint
is now the operative complaint in the 2017 Lawsuit. The Third
Amended Complaint alleged seven causes of action: five causes of
action for breach of contract (Counts I through III, VI, and VII),
a cause of action for fraud (Count IV), and a cause of action for a
declaratory judgment (Count V).
On Nov. 4, 2021, Bishop commenced an action against PHH in the
Circuit Court of the Seventeenth Judicial Circuit in and for
Broward County, Florida, Case No. CACE-21-020019. Bishop's claims
in the 2021 Lawsuit were nearly identical to the claims he alleged
in the First Amended Complaint in the 2017 Lawsuit, except that
Bishop sought to hold PHH liable for Ocwen's actions and included a
fifth count for "Class Action-Class Representation."
Counts I and II of the Complaint alleged breach of contract claims
related to PHH's post-Foreclosure Action assessment of attorney's
fees, costs, and late charges (resulting from Bishop's failure to
timely pay the attorney's fees and costs) and PHH's purported
failure to send notices to the correct address and applying
mortgage payments to the escrow account and then charging late
charges to the Plaintiff.
Count III contained allegations related to LPI. Count IV asserted
fraud allegations concerning LPI. The Complaint's last count
(improperly labeled Count III) sought to bring a class action
against PHH for charging fees and costs that were not valid charges
against the mortgages they service.
PHH filed the instant motion seeking to enforce the Lee Class
Action Settlement Agreement and Final Judgment against Bishop
Bishop has not sought to amend the Complaint in the 2021 Lawsuit.
Thus, the Complaint is the operative pleading in that case. It
asserted that the claims and allegations in the 2017 and 2021
Lawsuits were squarely within the scope of the Released Claims in
the Lee Class Action Settlement and that Bishop's attempt to hold
PHH liable for Ocwen's conduct relating to LPI violated the Final
Judgment's permanent injunction against the relitigation of
Released Claims. It argued that allowing Bishop's claims to proceed
in state court threatened to unravel the global resolution of the
Released Claims that the Settlement was intended to achieve.
Thus, PHH seeks an Order: (1) directing Bishop to discontinue
prosecuting the 2017 and 2021 Lawsuits and to dismiss those
actions"; (2) finding Bishop in contempt of court; and (3) awarding
PHH its compensatory damages, including attorney's fees and costs,
incurred by virtue of the 2017 and 2021 Lawsuits.
Judge Goodman grants in part and denies in part PHH's motion to
enforce the Final Judgment. He finds that Bishop was part of the
Lee Settlement Class and that the Class Notice provided to Bishop
complied with due process.
Judge Goodman states that res judicata applies to some of Bishop's
claims. Bishop is precluded from prosecuting the following claims
alleged in the Third Amended Complaint in the 2017 Lawsuit: Counts
II, III, the portion of Count IV related to the $10,060.18
insurance payment, Count V, part of Count VI (those items on the
Reconciliation Report which stem from LPI) and Count VII. Bishop is
also precluded from prosecuting the following claims alleged in the
Complaint in the 2021 Lawsuit: Counts II, III, the portion of Count
IV related to LPI and Count V (to the extent it concerns LPI during
the Class Period).
Under the Court's authority to protect and enforce the Lee Final
Judgment, Judge Goodman enjoins Bishop from prosecuting the
aforementioned claims. Bishop will file notices in the state court
actions dismissing those claims within 14 days from the date of the
Order.
If the claims identified are not dismissed by the court-imposed
deadline, then PHH/Ocwen will file a notice on CM/ECF attaching
copies of the most recent state court dockets. Judge Goodman will
then issue an order deeming Bishop to be in contempt of the Court,
at which point a hearing will be scheduled to determine the
appropriate remedy before entry of a final order of contempt.
Ocwen's request for attorney's fees and costs is denied. Ocwen has
failed to support its entitlement to fees and costs with any legal
authority. Its request for contempt relief is denied without
prejudice and with leave to refile if Bishop does not comply with
the Order.
Bishop's Motion to Update the Court as to the Court's Order of Aug.
4, 2022 is denied as moot. Judge Goodman has reviewed and
considered the relevant documents filed in the 2017 Lawsuit (and
the 2021 Lawsuit) as noted in his Order.
A full-text copy of the Court's March 8, 2023 Order is available at
https://tinyurl.com/45zpctzv from Leagle.com.
PETIT POT: Faces Faris Class Suit Over Dessert Products' False Ads
------------------------------------------------------------------
David Faris, individually and on behalf of all others similarly
situated v. Petit Pot, Inc., Case No. 2:23-cv-1955 (N.D. Cal.,
March 16, 2023), seeks damages, restitution, declaratory and
injunctive relief, and all other remedies the court deems
appropriate for the Defendant's misleading business practices with
respect to the sale of Defendant's "Pot de Creme," dessert
products.
Mr. Faris brings this consumer protection and false advertising
class action lawsuit against the Petit Pot, Inc, who marketed and
sold these products with labeling, packaging, and advertising that
leads consumers to believe that they are made in France, when in
fact, they are not. The Defendant allegedly failed to disclose that
the products are made in the US, in order to induce consumers'
purchases of the products.
Petit Pot, Inc., is incorporated in Delaware and maintains its
principal place of business in Emeryville, California. Defendant
sells a line of pudding desserts known as "Pot de Creme," in a
variety of different flavors. The products are available at grocery
retailers in California. Defendant, directly and/or through its
agents, is responsible for the manufacturing, packaging, marketing,
distribution, and sale of the Products in California.[BN]
The Plaintiff is represented by:
Lisa Omoto, Esq.
FARUQI & FARUQI, LLP
1901 Avenue of the Stars, Suite 1060
Los Angeles, CA 90067
Telephone: (424) 256-2884
Facsimile: (424) 256-2885
E-mail: lomoto@faruqilaw.com
PORTOLA PHARMACEUTICALS: $4.375MM in Fees Awarded in Hayden Suit
----------------------------------------------------------------
In the lawsuit captioned PAUL HAYDEN, et al., Plaintiffs v. PORTOLA
PHARMACEUTICALS INC., et al., Defendants, Case No. 3:20-cv-00367-VC
(N.D. Cal.), Judge Vince Chhabria of the U.S. District Court for
the Northern District of California, San Francisco Division, grants
the Lead Counsel's motion for:
(a) an award of attorneys' fees ($4,375,000 in fees, which is
25% of the Settlement Fund, and $750,612.54, in payment of
litigation expenses);
(b) reimbursement of litigation expenses incurred in this
securities class action (the "Action"); and
(c) an award of costs and expenses to Plaintiffs pursuant to
15 U.S.C. Section 78u-4(a)(4) (the "Fee and Expense
Motion").
The Court finds the Settlement reached is fair, reasonable, and
adequate. All capitalized terms not otherwise defined here have the
same meaning as set forth in the Sept. 19, 2022 Stipulation and
Agreement of Settlement.
Pursuant to and in compliance with Rule 23 of the Federal Rules of
Civil Procedure, the Court finds and concludes that due and
adequate notice of these proceedings was directed to all persons
and entities, who are Settlement Class Members, who could be
identified with reasonable effort advising them of the Fee and
Expense Motion and of their right to object thereto, and a full and
fair opportunity was accorded to persons and entities who are
Settlement Class Members to be heard with respect to the Fee and
Expense Motion.
The Court finds that the Notice to the Settlement Class of the Fee
and Expense Motion met the requirements of Rule 23, the United
States Constitution (including the Due Process Clause), the Private
Securities Litigation Reform Act of 1995, as amended, and all other
applicable law and rules; constituted the best notice practicable
under the circumstances; and constituted due and sufficient notice
to all persons and entities entitled thereto.
No Settlement Class Member has filed an objection to the Fee and
Expense Motion, nor requested exclusion from the Settlement Class.
The Lead Counsel is awarded, on behalf of all the Plaintiffs'
Counsel, attorneys' fees in the amount of $4,375,000 (25% of the
Settlement Fund), and $750,612.54, in payment of the Plaintiffs'
Counsel's litigation expenses, together with any interest earned
thereon for the same time period and at the same rate as that
earned on the Settlement Fund until paid pursuant to the terms set
forth in the Stipulation.
The attorneys' fees awarded here is subject to hold-back
provision.
The Court finds that the amount of fees awarded is appropriate and
is fair and reasonable under both the "percentage-of-the-fund"
method and using the lodestar cross-check, particularly given the
substantial risks of non-recovery, the substantial time and effort
involved, and the results obtained for the Settlement Class in
connection with the Settlement.
In accordance with 15 U.S.C. Section 78u-4(a)(4), the Court awards
reimbursement of costs and expenses from the Settlement Fund to
Lead Plaintiff Alameda County Employees' Retirement Association
("ACERA") in the amount of $10,000 and Additional Named Plaintiff
Oklahoma Firefighters Pension and Retirement System ("OFPRS") in
the amount of $8,500--sums the Court finds to be fair and
reasonable--in connection with their representation of the
Settlement Class.
Ninety percent (90%) of the total amount of attorneys' fees awarded
and interest earned, as well as all litigation expenses and
interest earned and reimbursement of costs and expenses to the
Plaintiffs, will be paid from the Settlement Fund immediately upon
entry of this Order, subject to the terms, conditions, and
obligations of the Stipulation. Consistent with its established
practice, the Court orders that 10% of the total amount of
attorneys' fees awarded will be withheld until after a distribution
of the Net Settlement Fund to Authorized Claimants has been made.
Pursuant to the Court's Standing Order for Civil Cases (at 17),
with Lead Counsel's filing of the Post-Distribution Accounting,
Lead Counsel will submit a proposed order to the Court requesting
the release of the remainder of its fee award and applicable earned
interest.
In making the awards of attorneys' fees, reimbursement of
litigation expenses, and reimbursement of the Plaintiffs' costs and
expenses to be paid from the Settlement Fund, the Court has
considered and found that:
a. The Settlement constitutes a favorable result for the
Settlement Class as it created a common fund of
$17.5 million in cash from which numerous Settlement Class
Members who submit valid and timely Proofs of Claim will
benefit;
b. The requested attorneys' fees and payment of litigation
expenses have been reviewed and approved as fair and
reasonable by the Lead Plaintiff and Additional Named
Plaintiff OFPRS, institutional investors that have been
directly involved in the prosecution and resolution of the
Action and who have substantial interests in ensuring that
any fees and expenses paid to counsel are duly earned and
not excessive;
c. The requested 25% fee request is consistent with an ex-ante
fee agreement negotiated by ACERA and entered into at the
outset of the litigation;
d. The attorneys' fees awarded are consistent with awards in
similar cases and with the Ninth Circuit's 25% benchmark;
e. Notice was disseminated to Settlement Class Members stating
that Lead Counsel would be submitting a request for
attorneys' fees in an amount not to exceed 25% of the
Settlement Amount plus accrued interest, payment of
expenses incurred in connection with the prosecution of
this Action in an amount not to exceed $840,000 plus
accrued interest, and a payment of up to an aggregate of
$20,000 to Plaintiffs, which payment includes reimbursement
of the Plaintiffs' reasonable costs and expenses directly
related to their representation of the Settlement Class;
f. The Plaintiffs' Counsel have expended substantial time and
effort pursuing the Action on behalf of the Settlement
Class;
g. The Action raised many complex factual and legal issues
and, in the absence of settlement, would involve lengthy
proceedings against the Defendants, the resolution of which
would be uncertain;
h. The Plaintiffs' Counsel assumed substantial risk by
pursuing the Action on a contingent basis, having received
no compensation during the Action, and expecting any fee
award would be contingent on the result achieved;
i. As set forth in the Fee and Expense Motion, the Plaintiffs'
Counsel devoted over 15,400 hours, collectively, to the
prosecution of the Action;
j. The fee awarded results in a negative lodestar multiplier
of less than 0.5 of the collective lodestar of the
Plaintiffs' Counsel, which confirms the reasonableness of
the requested fee;
k. Public policy strongly favors rewarding firms for bringing
successful securities class action litigation; and
l. The amounts to be paid from the Settlement Fund for
attorneys' fees, expenses, and an award for reimbursement
of the Plaintiffs' costs and expenses are fair and
reasonable and consistent with awards in similar cases.
Any appeal or any challenge affecting this Court's approval
regarding any attorneys' fee and expense application will in no way
disturb or affect the finality of the Judgment and other orders
entered with respect to the Settlement.
The Court's exclusive jurisdiction is retained over the subject
matter of this Action and over all parties to the Action, including
the administration and distribution of the Net Settlement Fund to
Settlement Class Members.
In the event that the Settlement is terminated or does not become
Final or the Effective Date does not occur in accordance with the
terms of the Stipulation, this Order will be rendered null and void
to the extent provided by the Stipulation and will be vacated in
accordance with the Stipulation.
A full-text copy of the Court's Order dated March 6, 2023, is
available at https://tinyurl.com/4xbmc63f from Leagle.com.
PORTOLA PHARMACEUTICALS: Court Dismisses Hayden Suit With Prejudice
-------------------------------------------------------------------
In the lawsuit styled PAUL HAYDEN, et al., Plaintiffs v. PORTOLA
PHARMACEUTICALS INC., et al., Defendants, Case No. 3:20-cv-00367-VC
(N.D. Cal.), Judge Vince Chhabria of the U.S. District Court for
the Northern District of California, San Francisco Division, issued
a final judgment and order of dismissal with prejudice, as
amended.
The matter came before the Court pursuant to the Order
Preliminarily Approving Settlement and Providing for Notice dated
Oct. 31, 2022, on the application of the parties for approval of
the Settlement set forth in the Stipulation and Agreement of
Settlement, dated Sept. 19, 2022. Due and adequate notice have been
given to the Settlement Class as required in said Notice Order.
The Court has jurisdiction over the subject matter of the Action
and over all parties to the Action, including all Settlement Class
Members.
Pursuant to Rule 23 of the Federal Rules of Civil Procedure, the
Court affirms its determination in the Notice Order and finally
certifies, for purposes of settlement only, a Settlement Class
defined as: all persons and entities who purchased or otherwise
acquired the common stock of Portola Pharmaceuticals, Inc. between
Jan. 8, 2019, and Feb. 28, 2020, inclusive, and were allegedly
damaged thereby; including those who purchased or otherwise
acquired Portola Inc. common stock either in or traceable to
Portola Inc.'s secondary public offering ("SPO") on or about Aug.
14, 2019, and were allegedly damaged thereby.
Notwithstanding the foregoing and for the avoidance of doubt, the
Settlement Class will not exclude any "Investment Vehicles,"
defined as any investment company, or pooled investment fund or
separately managed account (including mutual fund families,
exchange traded funds, funds of funds, private equity funds, real
estate funds, hedge funds, and employee benefit plans) in which the
Underwriter Defendants, or any of them, have, has, or may have a
direct or indirect interest, or as to which its affiliates may
serve as a fiduciary or act as an investment advisor, general
partner, managing member, or in any other similar capacity but in
which any of the Underwriter Defendants, alone or together with
its, his, or her respective affiliates, is not a majority owner or
does not hold a majority beneficial interest.
The Court finds that: (a) the members of the Settlement Class are
so numerous that joinder of all Settlement Class Members in the
Settlement Class are impracticable; (b) there are questions of law
and fact common to the Settlement Class which predominate over any
individual question; (c) the claims of the Plaintiffs are typical
of the claims of the Settlement Class; (d) Plaintiffs and the
Plaintiffs' Counsel have fairly and adequately represented and
protected the Settlement Class Members; (e) the questions of law
and fact common to the members of the Settlement Class predominate
over any questions affecting only individual Settlement Class
Members; and (f) a class action is superior to other available
methods for the fair and efficient adjudication of the
controversy.
Pursuant to Federal Rule of Civil Procedure 23, the Court approves
the Settlement set forth in the Stipulation and finds that:
(a) said Stipulation and the Settlement contained therein,
are, in all respects, fair, reasonable, and adequate and
in the best interest of the Settlement Class;
(b) there was no collusion in connection with the Stipulation;
(c) the Stipulation was the product of informed, arm's-length
negotiations among competent, able counsel; and
(d) the record is sufficiently developed and complete to have
enabled Plaintiffs and Defendants to have adequately
evaluated and considered their positions; and
(e) the Plan of Allocation treats Settlement Class Members
equitably relative to each other.
Accordingly, the Court authorizes and directs the implementation
and performance of all the terms and provisions of the Stipulation,
as well as the terms and provisions hereof. The Court dismisses the
Action and all claims asserted therein with prejudice. The Settling
Parties are to bear their own costs, except as and to the extent
provided in the Stipulation and herein.
Upon the Effective Date, and as provided in the Stipulation, the
Plaintiffs will, and each member of the Settlement Class will be
deemed to have, and by operation of this Judgment will have, fully,
finally, and forever released, relinquished, and discharged all the
Plaintiffs' Released Claims against the Defendants and the
Defendants' Releasees (including Unknown Claims), whether or not
such Settlement Class Member executes and delivers a Proof of Claim
form or shares in the Net Settlement Fund. Claims to enforce the
terms of the Stipulation are not released.
Upon the Effective Date, and as provided in the Stipulation, each
of the Defendants and the Defendants' Releasees will be deemed to
have, and by operation of this Judgment will have, fully, finally,
and forever released, relinquished, and discharged all the
Defendants' Released Claims (including Unknown Claims) against the
Plaintiffs, each and all of the Settlement Class Members, the
Plaintiffs' Counsel, and other Plaintiffs' Releasees. Claims to
enforce the terms of the Stipulation or any order of the Court
relating to the Settlement of the Action are not released.
Judge Chhabria says the Notice given to the Settlement Class was
the best notice practicable under the circumstances, including the
individual notice to all Settlement Class Members who could be
identified through reasonable effort. Said notice provided the best
notice practicable under the circumstances of those proceedings and
of the matters set forth therein, including the proposed Settlement
set forth in the Stipulation, to all Persons entitled to such
notice, and said notice fully satisfied the requirements of Federal
Rule of Civil Procedure 23 and the requirements of due process.
Any Plan of Allocation submitted by Lead Counsel or any order
entered regarding any attorneys' fee and Litigation Expense
application will in no way disturb or affect this Judgment and will
be considered separate from this Judgment.
Without affecting the finality of this Judgment in any way, the
Court retains continuing jurisdiction over: (a) implementation of
this Settlement and any award or distribution of the Settlement
Fund, including interest earned thereon; (b) disposition of the
Settlement Fund; (c) hearing and determining applications for
attorneys' fees, reimbursement of Litigation Expenses and for an
award to the Plaintiffs; and (d) all parties herein for the purpose
of construing, enforcing, and administering the Stipulation.
The Court finds that during the course of the Action the Settling
Parties and their respective counsel at all times complied with the
requirements of Federal Rule of Civil Procedure 11.
In the event that the Settlement does not become effective in
accordance with the terms of the Stipulation, or the Effective Date
does not occur, or in the event that the Settlement Fund, or any
portion thereof, is returned to the Defendants or their insurers,
then this Judgment will be rendered null and void to the extent
provided by and in accordance with the Stipulation and will be
vacated and, in such event, all orders entered and releases
delivered in connection herewith will be null and void to the
extent provided by and in accordance with the Stipulation, and the
Settling Parties will revert to their respective positions in the
Action as of June 9, 2022, as provided in the Stipulation.
Without further order of the Court, the Settling Parties may agree
to reasonable extensions of time to carry out any of the provisions
of the Stipulation.
The Court directs immediate entry of this Judgment by the Clerk of
the Court.
A full-text copy of the Court's Final Judgment and Order dated
March 6, 2023, is available at https://tinyurl.com/b8vbsbss from
Leagle.com.
PORTOLA PHARMACEUTICALS: Plan of Allocation in Hayden Suit OK'd
---------------------------------------------------------------
Judge Vince Chhabria of the U.S. District Court for the Northern
District of California, San Francisco Division, approves the Plan
of Allocation in the lawsuit captioned PAUL HAYDEN, et al.,
Plaintiffs v. PORTOLA PHARMACEUTICALS INC., et al., Defendants,
Case No. 3:20-cv-00367-VC (N.D. Cal.).
The matter came for hearing before the Court on March 3, 2023 (the
"Final Approval Hearing"), on Lead Counsel's motion to determine,
among other things, whether the Plan of Allocation is fair,
reasonable, and adequate and should be approved by the Court.
Judge Chhabria notes that all capitalized terms not otherwise
defined herein have the same meaning as set forth in the Sept. 19,
2022 Stipulation and Agreement of Settlement.
The Court has jurisdiction over the subject matter of this
application and all matters related thereto, including all members
of the Settlement Class. No Settlement Class Member has requested
exclusion from the Action and the Settlement Class, nor objected to
any aspect of the Settlement or Plan of Allocation.
Pursuant to and in compliance with Rule 23 of the Federal Rules of
Civil Procedure, the Court finds and concludes that due and
adequate notice of these proceedings was directed to all persons
and entities, who are Settlement Class Members, who could be
identified with reasonable effort advising them of the Plan of
Allocation and of their right to object to thereto, and a full and
fair opportunity was accorded to persons and entities, who are
Settlement Class Members, to be heard with respect to the Plan of
Allocation.
The Claims Administrator posted a copy of the Notice of Pendency of
Class Action and Proposed Settlement, Final Approval Hearing, and
Motion for Attorneys' Fees and Reimbursement of Litigation
Expenses, substantially in the form approved by the Court, to a
website dedicated to the administration of the settlement of this
action. To date, 44,005 copies of the Notice Packet, substantially
in the form approved by the Court, were mailed to potential
Settlement Class Members and nominees containing instructions of
how to access the Notice on the Settlement website. There are no
objections to the Plan of Allocation.
The Court finds and concludes that the formulae in the Plan of
Allocation for the calculation of the claims of Authorized
Claimants that are described in the Notice, which was disseminated
to all Settlement Class Members, provides a fair and reasonable
basis upon which to allocate the proceeds from the Net Settlement
Fund among Settlement Class Members.
The Court finds and concludes that the Plan of Allocation set forth
in the Notice is, in all respects, fair, reasonable, and adequate,
and the Court approves the Plan of Allocation.
A full-text copy of the Court's Order dated March 6, 2023, is
available at https://tinyurl.com/ywc5k6v4 from Leagle.com.
REALPAGE INC: Saloman Suit Seeks Damages for Antitrust Violations
-----------------------------------------------------------------
Christopher Saloman and Michael Strauss, individually and on behalf
of all others similarly situated v. RealPage, Inc.; AvalonBay
Communities, Inc.; Bell Partners, Inc.; BH Management Services,
LLC; Bozzuto Management Company; Camden Property Trust; ConAm
Management Corp.; Cortland Partners, LLC; FPI Management, Inc.;
Greystar Real Estate Partners, LLC; Highmark Residential, LLC;
Lantower Luxury Living, LLC; Lincoln Property Company; Mid-America
Apartment Communities, Inc.; Pinnacle Property Management Services,
LLC; RPM Living, LLC; UDR, Inc.; and ZRS Management, LLC, Case No.
1:23-cv-21038 (S.D. Fla., March 16, 2023), seek to recover treble
damages, injunctive relief, and other relief as appropriate, based
on violations of the Sherman Act by the Defendants.
This action arises from Defendants' conspiracy to fix, raise,
maintain, and stabilize rental housing prices in the Miami,
Orlando, Jacksonville, and Tampa, Florida housing markets (the
"Greater Miami Metro Area," "Greater Orlando Metro Area," "Greater
Jacksonville Metro Area," and "Greater Tampa Metro Area,"
respectively). The plaintiffs allege that the contract, combination
or conspiracy consisted of an agreement among the Defendants and
their co-conspirators to fix, raise, stabilize, or maintain at
artificially high levels the rents they charge for residential
units in and around the relevant Florida markets: Miami, Orlando,
Jacksonville, and Tampa. The Defendants' conspiracy involved the
exchange of competitively sensitive information between and among
Defendants, causing anticompetitive effects without sufficient
procompetitive justifications, says the suit.
The Defendants' alleged violations of the antitrust laws have
caused Plaintiffs to pay higher prices for residential rental units
in and around Miami, Orlando, Jacksonville, and Tampa, Florida,
than they would have in the absence of Defendants' illegal
contract, combination, or conspiracy, and as a result, have
suffered damages in the form of overcharges paid on their rental
units.
RealPage is a corporation headquartered in Richardson, TX,
organized and existing under the laws of Delaware. RealPage
provides software and services to managers of residential rental
apartments, including the YieldStar/AI Revenue Management software
described herein. RealPage was a public company from 2010 until
December 2020, when it was purchased by Chicago-based private
equity firm Thoma Bravo, LP, in a transaction that valued RealPage
at approximately $10.2 billion. At that time, RealPage had over
31,700 clients, including each of the 10 largest multifamily
property management companies in the US.[BN]
The Plaintiffs are represented by:
Jeffrey B. Kaplan, Esq.
Maria V. Ceballos, Esq.
DIMOND KAPLAN & ROTHSTEIN, P.A.
2665 South Bayshore Drive, PH-2B
Miami, FL 33133
Telephone: (305) 374-1920
E-mail: Jkaplan@dkrpa.com
Vceballos@dkrpa.com
REGAL CAPITAL: Petromanolakis Sues Over Unsolicited Phone Calls
---------------------------------------------------------------
MARIA PETROMANOLAKIS, individually and on behalf of all others
similarly situated v. REGAL CAPITAL GROUP, LLC, a Wyoming company,
Case No. 1:23-cv-02030 (E.D.N.Y., Mar. 16, 2023) contends that the
Defendant promotes and markets its services, in part, by calling
thousands of consumers and playing artificial or prerecorded voice
messages, in violation of the Telephone Consumer Protection Act.
The Defendant allegedly did not obtain express written consent
prior to placing these artificial or prerecorded voice calls. On
numerous occasions within the last 12 months, and most recently on
February 23, 2023, the Plaintiff received an artificial and/or
prerecorded voice message indicating she was approved for a line of
credit and that she should respond by calling 949-200-3125. The
representatives who answer at this number indicate they are with
Regal Capital and direct individuals to the website
www.regalcapgroup.com.
The Plaintiff's phone number has been registered on the federal Do
Not Call registry. The Plaintiff never provided express consent (or
any consent) to Defendant for these calls. The Plaintiff had never
heard of Defendant and had no relationship whatsoever with
Defendant prior to receiving these illegal calls. The Plaintiff and
the Class members have suffered concrete harm because of the
Defendant's unwanted and unsolicited text messages, including,
device storage, data usage, lost time tending to and responding to
the unsolicited text messages, invasion of Privacy, intrusion upon
Seclusion, nuisance, aggravation, and annoyance.
As a result of its unlawful conduct, the Defendants repeatedly
invaded Plaintiff's and the TCPA Class's personal privacy, causing
them to suffer damages and, under 47 U.S.C. section 227(b)(3)(B),
entitling them to recover $500 in civil fines for each violation
and an injunction requiring Defendants to stop its illegal calling
campaign, says the suit.
The Plaintiff is a citizen and resident of Astoria, New York.
Regal Capital is in the business of consumer and business
credit.[BN]
The Plaintiff is represented by:
Yitzchak Zelman, Esq.
MARCUS & ZELMAN , LLC
701 Cookman Ave, Suite 300
Asbury Park, NJ 07712
Telephone: (732) 695-3282
Facsimile: (732) 298-6256
E-mail: yzelman@MarcusZelman.com
RESIDEO TECHNOLOGIES: $1.6MM Settlement to be Heard on June 7
-------------------------------------------------------------
Kroll Settlement Administration issued a statement regarding the
Resideo Technologies Derivative Settlement.
YOU ARE HEREBY NOTIFIED, that the above-captioned Consolidated
Action1 is being settled on the terms set forth in a Stipulation of
Settlement, dated February 7, 2023 (the "Stipulation" or
"Settlement"). This notice should be read in conjunction with, and
is qualified in its entirety by reference to, the text of the
Stipulation, which has been filed with the United States District
Court for the District of Minnesota. A link to the text of the
Stipulation and the full-length Notice of Pendency and Proposed
Settlement of Shareholder Derivative Action may be found at
www.ResideoTechnologiesDerivativeSettlement.com. All capitalized
terms herein have the same meanings as set forth in the
Stipulation.
Under the terms of the Stipulation, as part of the proposed
Settlement, Resideo has agreed to adopt and maintain certain
corporate governance measures that serve as the basis for the
resolution of the claims asserted in this derivative litigation
(the "Corporate Governance Reforms").2 The Company has agreed to
maintain the Corporate Governance Reforms for a period of no less
than five (5) years. The corporate governance measures are
detailed in their entirety in Exhibit A to the Stipulation. Resideo
has also agreed to pay an award of attorneys' fees, reimbursement
of expenses, and service awards, if any, for all Plaintiffs and
Plaintiffs' Counsel in an aggregate amount not to exceed
$1,600,000.00, subject to Court approval (the "Fee Award").3
IF YOU WERE A RECORD OR BENEFICIAL OWNER OF RESIDEO COMMON STOCK AS
OF FEBRUARY 13, 2023, PLEASE READ THIS NOTICE CAREFULLY AND IN ITS
ENTIRETY AS YOUR RIGHTS MAY BE AFFECTED BY PROCEEDINGS IN THE
ABOVE-REFERENCED LITIGATION.
On June 7, 2023, at 11:00 a.m., a settlement fairness hearing will
be held before the Honorable Wilhelmina M. Wright, at the United
States District Court for the District of Minnesota, Courtroom
7A,Warren E. Berger Federal Building and U.S. Courthouse, 316 N.
Robert Street, St. Paul, Minnesota 55101 (the "Settlement
Hearing"). At the Settlement Hearing, the Court will: (a)
determine whether Plaintiffs and Plaintiffs' Counsel have
adequately represented the interests of Resideo and its
stockholders; (b) determine whether the proposed Settlement on the
terms and conditions provided for in the Stipulation is fair,
reasonable, adequate, and in the best interests of Resideo and its
stockholders; (c) determine whether the Notice fully satisfies the
requirements of Rule 23.1 and due process; (d) determine whether a
judgment substantially in the form attached as Exhibit D to the
Stipulation should be entered dismissing the Action with prejudice
against Defendants; (e) determine whether the motion by Plaintiffs'
Counsel for the Fee Award should be approved; (f) hear and
determine any objections to the Settlement or the motion by
Plaintiffs' Counsel for the Fee Award; and (g) consider any other
matters that may properly be brought before the Court in connection
with the Settlement.
Any Resideo stockholder that objects to the Settlement shall have a
right to appear and to be heard at the Settlement Hearing, provided
that he, she, or it was a stockholder of record or beneficial owner
as of February 13, 2023. Any Resideo stockholder who satisfies
this requirement may enter an appearance through counsel of such
stockholder's own choosing and at such stockholder's own expense,
or may appear on his, her, or its own. However, no stockholder of
Resideo shall be heard at the Settlement Hearing unless, no later
than May 17, 2023, such stockholder has filed with the Court and
counsel for the parties, a written notice of objection containing
the following information:
Your name, legal address, e-mail address, and telephone number;
The case name and number;
Proof of current ownership in Resideo common stock, including the
number of shares and documentary evidence of when such stock
ownership was acquired, with such ownership having existed on or
before February 13, 2023;
The date(s) you acquired your Resideo shares;
A written detailed statement of each objection being made that
states with specificity the grounds for the objection, including
any legal and evidentiary support you wish to bring to the Court's
attention;
Notice of whether you intend to appear at the Settlement Hearing
(you are not required to appear); and
Copies of any papers you intend to submit to the Court, along with
the names of any witness(es) you intend to call to testify at the
Settlement Hearing and the subject(s) of their testimony.
Only stockholders who have filed and delivered valid and timely
written notices of objection will be entitled to be heard at the
Settlement Hearing, unless the Court orders otherwise.
Any person or entity who fails to object or otherwise request to be
heard in the manner prescribed above will be deemed to have waived
the right to object to any aspect of the Settlement as incorporated
in the Stipulation or otherwise to be heard (including the right to
appeal) and will be forever barred from raising such objection or
request to be heard in this or any other action or proceeding, and,
unless otherwise ordered by the Court, shall be bound by the Final
Judgment to be entered and the releases to be given.
Inquiries, other than requests for the Notice, may be made to:
Plaintiffs' Counsel: Michael J. Barryt, Vivek Upadhya, GRANT &
EISENHOFER PA, 123 Justison Street, Wilmington, DE 19801,
Telephone: (302) 622-7000, mbarry@gelaw.com, vupadhya@gelaw.com.
Adam Warden, SAXENA WHITE P.A., 7777 Glades Road, Suite 300, Boca
Raton, FL 33434, Telephone: (561) 206-6713,
awarden@saxenawhite.com.
Defendant's Counsel: Tariq Mundiya, Charles D. Cording, WILLKIE
FARR & GALLAGHER LLP, 787 Seventh Avenue, New York, NY 10019,
Telephone: (212) 728-8000, tmundiya@willkie.com,
ccording@willkie.com.
1The Settlement also resolves (1) a related shareholder derivative
action pending in the Delaware Court of Chancery, entitled Bud &
Sue Frashier Family Trust v. Fradin et al., C.A. No. 2021-0556-PAF
(Del. Ch.) (the "Delaware Chancery Action"); and (2) a pending
litigation demand made by Resideo stockholder Alice Burstein (the
"Derivative Demand").
2Resideo will implement the Corporate Governance Reforms upon Final
Approval, except that any Corporate Governance Reform relating to
the composition of Resideo's Board of Directors will be implemented
in the next election cycle following Final Approval.
3The Parties stipulated that Plaintiffs' Counsel may apply to the
Court for service awards of up to $2,500 for each of the Plaintiffs
in recognition of Plaintiffs' participation and efforts in the
prosecution of the Consolidated Action, the Delaware Chancery
Action, and the Derivative Demand, to be paid from Plaintiffs'
Counsel's Fee Award and only upon approval of the Court.
PLEASE DO NOT CONTACT THE COURT REGARDING THIS NOTICE.
Dated: February 13, 2023
BY ORDER OF THE COURT
UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
ROBINHOOD MARKETS: Court Dismisses Amended Data Security Suit
-------------------------------------------------------------
Judge James Donato of the U.S. District Court for the Northern
District of California grants the Defendant's motion to dismiss the
consolidated amended complaint in the lawsuit styled IN RE
ROBINHOOD DATA SECURITY LITIGATION, Case No. 21-cv-08906-JD (N.D.
Cal.).
The putative class action arises from a November 2021 data breach
that is said to have exposed the full names, email addresses, dates
of birth, zip codes, and other personally identifiable information
(PII) of over seven million customers of Defendant Robinhood
Markets, Inc.
In an 84-page consolidated amended complaint (CAC), 25 Robinhood
customers in California, Illinois, New York, Utah, South Carolina,
Georgia, Virginia, Massachusetts, Oklahoma, New Jersey, Kansas,
Kentucky, and Florida allege 24 claims ranging from negligence and
breach of contract to violations of multiple state consumer
protection and data security laws. The Named Plaintiffs have sued
on behalf of themselves, a putative national class, and 11 putative
state subclasses.
Robinhood has asked to dismiss the CAC under Federal Rules of Civil
Procedure 12(b)(1) and 12(b)(6). Judge Donato holds that dismissal
is warranted on grounds other than those proposed by Robinhood.
The CAC, as it currently stands, is not a workable pleading under
Rule 8, Judge Donato holds. To start, the claims for the national
class include negligence, negligence per se, breach of contract,
breach of implied contract, unjust enrichment, and declaratory
judgment. These are common law claims, and the CAC is silent about
the law that is intended to govern them.
The Plaintiffs have invoked the Class Action Fairness Act (CAFA) as
the basis of the Court's subject matter jurisdiction. CAFA is a
species of diversity jurisdiction, which means that the Court will
apply state substantive law to resolve the claims. What that state
law might be is not identified in the CAC, Judge Donato says.
This is a problem because the parties are literally all over the
map, Judge Donato explains. The Named Plaintiffs are citizens of 13
different states, and Robinhood is alleged to be a Delaware
business entity with a principal place of business in California.
The motion to dismiss briefing compounded the lack of clarity by
citing a potpourri of cases from multiple state jurisdictions,
which the parties appear to have selected mainly for content they
liked rather than for good reasons of choice of law, Judge Donato
says. As a result, the parties did not provide useful arguments on
key issues, such as the possible application of the economic loss
rule.
Robinhood posited, with little explanation, that the California
economic loss rule applies to the negligence claims. The Plaintiffs
said that the California rule is inapplicable because they are from
various states beyond California, including some where the economic
loss rule does not apply. This is no way to litigate the sprawling
claims on behalf of multiple putative classes in the CAC, Judge
Donato points out.
Another problem is that the CAC is thin on facts, Judge Donato
opines. To be sure, the occurrence of the data breach is based on
public and user communications by Robinhood, and some of the Named
Plaintiffs alleged concrete and particularized injuries from the
breach. Even so, the CAC is a bit anemic with respect to its main
theory that Robinhood did not properly protect user data. For the
most part, the Plaintiffs say only that "it appears" that Robinhood
did not use adequate security measures, and allege "on information
and belief" that Robinhood did not follow Federal Trade Commission
data security guidelines.
Judge Donato finds the lengthy summaries of data security
safeguards in the CAC are untethered to facts indicating that
Robinhood's conduct fell short in any way. This is not necessarily
a flaw that dooms the Plaintiffs' case, but the absence of facts
about Robinhood's conduct exacerbates the general lack of clarity
in the CAC, Judge Donato points out.
Robinhood bears responsibility for its own shortcomings, Judge
Donato notes. Its Rule 12(b)(6) brief teed up a new theory on
almost every page, typically without any meaningful discussion or
analysis. In the end, it simply threw out bullet points linked to
footnotes stuffed with citations to statutes and cases.
Such half-baked briefing falls well below the standards of
professionalism expected of counsel and parties in this District,
Judge Donato opines. It also violates the Court's Standing Order
for Civil Cases, which expressly states that arguments raised with
inadequate supporting authority and discussion will be disregarded.
Going forward, briefs and arguments that are not in conformance
with the Standing Order will be summarily denied, Judge Donato
says.
Overall, the Court finds the CAC did not present "a short and plain
statement of the claim showing that the pleader is entitled to
relief," as Rule 8(a)(2) requires. It is dismissed and the
Plaintiffs may file a second amended complaint that conforms to
this order. No new claims or parties may be added without the
Court's prior consent. A failure to meet this deadline will result
in a dismissal of the case under Rule 41(b).
A full-text copy of the Court's Order dated March 6, 2023, is
available at https://tinyurl.com/3wabwcjz from Leagle.com.
ROCKET COMPANIES: Court Narrows Claims in Shupe Securities Suit
---------------------------------------------------------------
In the case, CARL SHUPE, individually and on behalf of all others
similarly situated, Plaintiffs v. ROCKET COMPANIES, INC., JAY
FARNER, JULIE BOOTH, ROBERT WALTERS, DANIEL GILBERT, and ROCKET
HOLDINGS, INC., Defendants, Case No. 1:21-cv-11528 (E.D, Mich.),
Judge Thomas L. Ludington of the U.S. District Court for the
Eastern District of Michigan, Northern Division:
a. grants in part and denies in part the Plaintiffs' Motion to
Strike; and
b. grants in part and denies in part the Defendants' Motion to
Dismiss.
In this securities-fraud class action, numerous shareholders of
Rocket stock (NYSE:RKT) have sued Daniel Gilbert and Rocket
Holdings (RHI), Rocket Companies (RCI), and some of RCI's senior
officers and directors: Jay Farner, Julie Booth, and Robert
Walters.
The Plaintiffs have brought a class action against Rocket Companies
and some of its officers and directors. They allege that, between
February 25 and May 5, 2021, the Defendants artificially inflated
the price of Rocket Class A common stock by publicly
misrepresenting numerous adverse facts, violating the Securities
Exchange Act. The Plaintiffs also allege that the CEO and
controlling shareholder, Daniel Gilbert, traded securities using
insider information.
In June 2021, Zoya Qaiyum brought the case under 15 U.S.C. Section
78j(b), t(a) and 17 C.F.R. Section 240.10b-5. The next month,
District Judge Paul D. Borman recused himself from the case, which
was then randomly reassigned to District Judge Judith E. Levy.
In August 2021, six plaintiffs from later-filed Case No.
5:21-CV-11618 filed five motions to consolidate that case with the
present case, as well as to be appointed as the lead or colead
plaintiff under 15 U.S.C. Section 78u-4(a)(3)(B)(i), as amended by
the Private Securities Litigation Reform Act of 1995 (PSLRA).
In April 2022, Judge Levy consolidated the cases under Federal Rule
of Civil Procedure 42(a)(2) but did not determine the lead
plaintiff under the PSLRA. Two days later, the case was randomly
reassigned to the undersigned so that Judge Levy could effectively
manage the ongoing Flint water cases.
In May 2022, Qaiyum voluntarily dismissed her complaint and Carl
Shupe was appointed as Lead Plaintiff of the Rocket Class. A month
later, the Plaintiffs filed the Second Amended Complaint, alleging
that: Gilbert and RHI violated 15 U.S.C. Section 78j(b) and 17
C.F.R. Section 240.10b-5 (Count I); Gilbert and RHI violated 15
U.S.C. Section 78t-1 (Count II); RCI, Farner, Booth, Walters, and
Gilbert violated 15 U.S.C. Section 78j(b) and 17 C.F.R. Section
240.10b-5 (Count III); and RHI, Farner, Booth, Walters, and Gilbert
violated 15 U.S.C. Section 78t (Count IV).
Seventeen days later, the Defendants filed a motion to dismiss,
which has been fully briefed. In response to the Motion to Dismiss,
the Plaintiffs filed a motion to strike the Defendants' reply or,
alternatively, to deny the Motion to Dismiss as a premature motion
for summary judgment because there has been no discovery in the
case.
Rocket Mortgage is the largest mortgage lender in the United
States. Rocket lends funds, secured by mortgages, to its customers.
Its most profitable business is "repackaging and selling" the
customers' loans to government-sponsored enterprises (GSE), which
sell the loans as mortgage-backed securities on a secondary
market.
The Plaintiffs allege that, during the Class Period (February
25-May 5, 2021), the Defendants violated the Securities Exchange
Act by making seven false and misleading statements to the market
about Rocket's key performance metrics. They contend that, as RHI's
CEO and Board Chairman, Gilbert committed insider trading by
selling Rocket shares with the permission of Rocket's Board.
In sum, Rocket executives told the market that internal financial
metrics were improving, then it changed company policy without the
insight of general counsel, allowing the Chairman of the Board to
sell more than twenty million shares a mere six days after he
learned information that later caused the market for Rocket shares
to decline to a record low.
The Defendants filed a motion to dismiss, but their reply brief
incorporated an analyst report that the Plaintiffs did not submit
or discuss. So, the Plaintiffs filed a motion either to strike the
report or to convert the motion to dismiss to a summary-judgment
motion.
The questions presented are whether the Defendants' motion to
dismiss must be converted to a summary-judgment motion, whether the
Plaintiffs have adequately alleged that the Defendants made
material misrepresentations in violation of the Securities Exchange
Act, and whether the Plaintiffs have adequately alleged that Daniel
Gilbert committed insider trading.
First, Judge Ludington grants in part the Plaintiffs' Motion to
Strike. He opines that on its face, the decision to include the
Wedbush Report appears to require conversion of the Motion to
Dismiss. However, the Wedbush Report is not integral; the Second
Amended Complaint neither attaches nor relies on the Wedbush
Report. And the Defendants have included numerous factual
assertions regarding the Report.
Therefore, the motion to dismiss seemingly must be converted to a
summary-judgment motion unless the Wedbush Report is a public
record or subject to judicial notice. Because the Wedbush Report is
neither public nor subject to judicial notice, the Defendants'
reliance on it would ordinarily require conversion of the motion to
one for summary judgment. But not in a securities-fraud case.
Judge Ludington holds that the Motion to Dismiss should not be
converted. The Wedbush Report will be stricken.
Next, Judge Ludington addresses the merits of the Defendants'
Motion to Dismiss. The Plaintiffs allegedly suffered losses when
the share price of Rocket stock (NYSE:RKT) fell from $22.80 to
$16.48 between May 5 and May 11, 2021. They allege that RCI, RHI,
Farner, Booth, Walters, and Gilbert committed securities fraud by
publicly telling investors one thing about Rocket's gain-on-sale
margin and closed-loan volume while having knowledge or acting
inconsistent with those public statements. They base their claims
on allegations of material misrepresentations or omissions in an
earnings call, a virtual conference, an interview, an internal
company report, a 10-K filing, and two tweets.
The Plaintiffs specifically allege that Gilbert and RHI violated
Section 10(b) and Rule 10b-5 of the Exchange Act (Count I); Gilbert
and RHI violated Section 20(a) of the Exchange Act (Count II); RCI,
Farner, Booth, Walters, and Gilbert violated Section 10(b) and Rule
10b-5 of the Exchange Act (Count III); and RHI and Farner, Booth,
Walters, and Gilbert violated Section 20(a) of the Exchange Act
(Count IV).
Judge Ludington opines that the Plaintiffs have adequately pled
violations of Section 10(b) of the Exchange Act and Rule 10b-5
against Defendants Daniel Gilbert and RHI (Count I); violations of
Section 20A of the Exchange Act against Defendants Daniel Gilbert
and RHI (Count II); Violations of Section 10(b) of the Exchange Act
and Rule 10b-5 against Defendants RCI, Jay Farner, and Daniel
Gilbert (Count III); and Violations of Section 20(a) of the
Exchange Act against Defendants RHI, Jay Farner, and Daniel Gilbert
(Count IV).
Consequently, the Plaintiffs' Motion to Strike is granted in part,
the Defendants' Motion to Dismiss is granted in part, Defendants
Julie Booth and Robert Walters are dismissed with prejudice, and a
scheduling order is entered.
The Motion to Strike is granted to the extent that seeks to strike
the Wedbush Report; it is denied in all other regards.
The Motion to Dismiss is granted with respect to dismissing
Defendants Julie Booth and Robert Walters; it is denied in all
other regards.
Further, the Scheduling Order is set as follows:
a. Defendant's Expert Disclosures: Sept. 4, 2023;
b. Class Certification Motion: Sept. 4, 2023;
c. Rule 26(a)(3)(B) Disclosures: Sept. 6, 2023;
d. Plaintiff's Expert Disclosures: Nov. 6, 2023;
e. Class Certification Response: Nov. 6, 2023;
f. Class Certification Reply: Nov. 20, 2023;
g. Plaintiff's Reply to Expert Report: Nov. 20, 2023;
h. Settlement Conference: Nov. 21, 2023, at 9:00 a.m. (EST);
i. Motions Challenging Experts: Dec. 22, 2023;
j. Discovery Cutoff: Feb. 5, 2024;
k. Dispositive Motions: March 4, 2024;
l. Motions in limine: May 6, 2024;
m. Pretrial Submissions: June 3, 2024;
n. Final Pretrial Conference: TBD; and
o. Jury Trial Date: TBD.
The Opinion and Order is not a final order and does not close the
case.
A full-text copy of the Court's March 8, 2023 Opinion & Order is
available at https://tinyurl.com/3b7r34ef from Leagle.com.
SAINT-GOBAIN PERFORMANCE: Baker May File 3rd Amended Master Suit
----------------------------------------------------------------
In the case, MICHELE BAKER, individually and on behalf of all other
persons similarly situated, et al., Plaintiffs v. SAINT-GOBAIN
PERFORMANCE PLASTICS CORP., et al., Defendants, Case No.
1:16-CV-0917 (LEK/DJS) (N.D.N.Y.), Judge Lawrence E. Kahn of the
U.S. District Court for the Northern District of New York:
a. grants the Plaintiffs' Cross-Motion to file a Third Amended
Master Consolidated Complaint; and
b. enters a conditional order sua sponte decertifying the
Nuisance Damage Class contingent on the Plaintiffs' filing
of the Third Amended Master Consolidated Complaint with the
Court.
Plaintiffs Michele Baker; Charles Carr; Angela Corbett; Pamela
Forrest; Michael Hickey, individually and as parent and natural
guardian of O.H., infant; Kathleen Main-Lingener; Kristin Miller,
as parent and guardian of K.M., infant; Jennifer Plouffe; Silvia
Potter, individually and as parent and natural guardian of C.P.,
infant; and Daniel Schuttig, individually and on behalf of all
others similarly situated (collectively, "Plaintiffs"), brought a
putative class action against Saint-Gobain; Honeywell
International, Inc., formerly known as Allied-Signal, Inc.
("Allied-Signal") or Allied-Signal Laminate Systems, Inc.; E.I.
DuPont de Nemours and Co.; and 3M Co. After the Court approved a
Settlement Agreement between Saint-Gobain, Honeywell, 3M, and the
Plaintiffs, DuPont remained the sole Defendant in the case.
On Sept. 30, 2022, the Court issued a Memorandum-Decision and Order
granting the Plaintiffs' motion for class certification in the case
against DuPont. Specifically, in the September 2022 Order, the
Court granted the Plaintiffs' Motion to Certify Class with respect
to: (1) the PFOA Invasion Injury Class pursuant to Federal Rules of
Civil Procedure 23(a) and 23(b)(2); both (2) the Municipal Water
Property Damage Class and (3) the Private Well Water Property
Damage Class pursuant to Rules 23(a) and 23(b)(3); and (4) the
Nuisance Damage Class pursuant to Rules 23(a) and 23(c)(4).
On Oct. 12, 2022, DuPont filed a motion for reconsideration of the
September 2022 Order. Then, on Oct. 14, 2022, DuPont filed a motion
for leave to appeal with the U.S. Court of Appeals for the Second
Circuit pursuant to Rule 23(f). Subsequently, on Oct. 18, 2022, the
Plaintiffs filed their combined opposition to DuPont's Motion for
Reconsideration and cross-motion to file a Third Amended Master
Consolidated Complaint.
Thereafter, on Oct. 25, 2022, DuPont filed a document purporting to
be a combined reply to the Motion for Reconsideration and
opposition to the Plaintiffs' Cross-Motion. However, this document
appears to be a copy of DuPont's Motion for Reconsideration. The
next day, on Oct. 26, 2022, DuPont filed a corrected combined reply
and opposition.
Several days later, on Nov. 2, 2022, DuPont filed a notice of
withdrawal of its Motion for Reconsideration, but stated that it
continues to oppose the Plaintiffs' Cross Motion for Leave to Amend
for the reasons set forth in DuPont's Reply in Support of its
Motion for Reconsideration and Opposition to Plaintiffs' Cross
Motion for Leave to Amend. On Jan. 31, 2023, the Second Circuit
issued a mandate denying DuPont's Rule 23(f) petition stating that
an immediate appeal is not warranted.
Judge Kahn first examines timeliness of DuPont's Second Combined
Reply and Opposition. He says the Plaintiffs filed their
Cross-Motion on Oct. 18, 2022. Accordingly, the deadline for DuPont
to file its combined reply and opposition papers was Oct. 25, 2022.
While DuPont filed a filed a document purporting to be a combined
reply and opposition on Oct. 25, 2022, this document appears to be
a copy of DuPont's Motion for Reconsideration. Thus, when DuPont
filed a corrected combined reply and opposition on Oct. 26, 2022,
this was untimely because it did not fall within the seven-day
deadline set in Local Rule 7.1(c).
Nevertheless, Judge Kahn considers DuPont's Second Combined Reply
and Opposition in light of the fact that the district court has the
inherent power to decide when a departure from its Local Rules
should be excused or overlooked. In the Second Combined Reply and
Opposition, DuPont argues that the Plaintiffs' Cross-Motion seeking
to file a Third Amended Master Consolidated Complaint following
certification of various classes -- would unfairly prejudice
DuPont. While DuPont offers various objections to the proposed
Third Amended Master Consolidated Complaint, its main objection to
the proposed amended complaint is that the Plaintiffs are deleting
substantive allegations on which the Court relied concerning other
defendants -- while simultaneously pursuing previously certified
classes.
Judge Kahn finds that DuPont has not met its burden of establishing
undue prejudice with regard to the proposed Third Amended Master
Consolidated Complaint. Among other things, he finds that the
Plaintiffs have stated in the Cross-Motion that they have already
conveyed that they will consent to DuPont's amendment of its answer
to raise a N.Y. General Obligations Law Section 15-108 defense.
Thus, if DuPont files an amended answer, it appears unlikely that
the Plaintiffs will challenge this answer by a motion with regard
to a N.Y. General Obligations Law Section 15-108 affirmative
defense. Therefore, the Plaintiffs' Cross-Motion to file the
proposed Third Amended Master Consolidated is granted.
Lastly, because the Plaintiffs indicate that the proposed Third
Amended Master Consolidated Complaint removes the allegations
pertaining to the Nuisance Damage Class, Judge Kahn issues a
conditional order sua sponte decertifying the Nuisance Damage
Class, contingent on the Plaintiffs' filing of the Third Amended
Master Consolidated Complaint with the Court. The district judge
must define, redefine, subclass, and decertify as appropriate in
response to the progression of the case from assertion to facts.
For these reasons, Judge Kahn grants the Plaintiffs' Cross-Motion
to file the proposed Third Amended Master Consolidated Complaint.
The Plaintiffs may file and serve their amended complaint within 14
days from the date of issuance of this Memorandum-Decision and
Order pursuant to Local Rule 15.1(c).
Judge Kahn conditionally decertifies the Nuisance Damage Class sua
sponte pursuant to Federal Rule of Civil Procedure 23(c)(1)(C),
contingent on the Plaintiffs' filing of the Third Amended Master
Consolidated Complaint with the Court. Accordingly, upon the
Plaintiffs' filing of the Third Amended Master Consolidated
Complaint with the Court pursuant to Local Rule 15.1(c), the
Nuisance Damage Class will be decertified pursuant to Federal Rule
of Civil Procedure 23(c)(1)(C) without further order of the Court.
The Court finds that no further alterations to class certification
in the September 2022 Order -- other than decertification of the
Nuisance Damage Class -- are necessary at this time.
The Clerk of the Court serve a copy of the Memorandum-Decision and
Order on all parties in accordance with the Local Rules.
A full-text copy of the Court's March 7, 2023 Memorandum-Decision &
Order is available at https://tinyurl.com/23m874ux from
Leagle.com.
SAMSUNG ELECTRONICS: Denial of Arbitration Bid in White Suit Upheld
-------------------------------------------------------------------
In the case, THOMAS ROGER WHITE, JR.; PATRICIA CAULEY, on behalf of
themselves and all others similarly situated v. SAMSUNG ELECTRONICS
AMERICA, INC.; SONY ELECTRONICS INC. Samsung Electronics America,
Inc., Appellant, Case No. 22-1162 (3d Cir.), the U.S. Court of
Appeals for the Third Circuit affirms the order of the District
Court for the District of New Jersey denying Samsung's motion to
compel individual arbitration.
In this putative class action, the District Court for the District
of New Jersey determined that Samsung waived its right to
arbitrate. Samsung appeals the District Court ruling, arguing that
Morgan v. Sundance, Inc., 142 S.Ct. 1708 (2022), abrogated the
Court's prejudice-based approach to analyzing waiver of arbitration
rights and requires reversal.
The Plaintiffs are owners of Samsung SmartTVs who allege that
Samsung, among others, was illegally monitoring their usage of
Internet-enabled services on their televisions. They claimed that
Samsung SmartTVs used automatic tracking software to collect
personally identifying information about them, such as the videos
or streaming services they watch, and transmit that data to third
party advertisers and data brokers. In turn, these third parties
allegedly used the collected information to display targeted
advertisements to consumers.
When setting up their SmartTVs, the Plaintiffs had to agree to
certain Terms and Conditions to access the Internet-enabled
services. On some SmartTVs, the Terms and Conditions contained the
arbitration provision.
According to Samsung, not all of its SmartTVs have arbitration
provisions. It is able to tell by the Model Number on a SmartTV
whether that Model contains an arbitration clause in the Terms and
Conditions. The Serial Number specific to each SmartTV can be used
to confirm whether a user agreed to the Terms and Conditions.
In their 2017 complaint, then-plaintiffs Thomas Roger White, Jr.,
David Espinoza, and Christopher Mills did not provide the Model or
Serial Numbers for their SmartTVs. It was clear from this
complaint, however, that the Plaintiffs were SmartTV users who were
able to access Internet-enabled services, which they claimed
Samsung was unlawfully monitoring.
The Defendants jointly moved to dismiss the complaint, but the
parties agreed to a stay and administrative termination of the
case. In order to reactivate the case, the Plaintiffs were directed
to file a letter with the Court by December 2017 requesting that
the case be restored, along with a proposed amended complaint for
filing. The case was reactivated and in January 2018 Plaintiffs
submitted a proposed amended complaint.
The Defendants moved again to dismiss the amended complaint,
arguing that the Plaintiffs had not resolved the insufficiencies of
the original complaint, and that the Plaintiffs failed to meet
federal pleading standards for stating a claim as to each count.
While that motion was pending, the Defendants submitted a proposed
discovery plan in which they did not mention a possible right to
arbitrate. They also moved for a stay pending the outcome of their
motion to dismiss, which was granted.
In April 2018, prior to the District Court's decision on the motion
to dismiss, the Plaintiffs submitted their initial disclosures,
which contained the Model and Serial Numbers for all of their
SmartTVs. Thereafter, the Court granted the motion to dismiss in
full, and the Plaintiffs indicated that they would submit a second
amended complaint.
The Plaintiffs filed a second amended complaint in November 2018,
removing former-plaintiff Mills from the action, keeping White as a
plaintiff, and adding Patricia Cauley as a plaintiff. The second
amended complaint included the Model Numbers for both White's and
Cauley's SmartTVs, as well as the Serial Numbers for White's
SmartTVs. The Defendants once again moved to dismiss. The District
Court granted in part and denied in part this motion to dismiss and
dismissed all of the Plaintiffs' claims except for the Wiretap Act
claims. Samsung moved for reconsideration of the Court's order,
which was denied.
Samsung notified the Court in May 2020 that it would move to compel
individual arbitration. In response, counsel for plaintiffs stated
that Samsung had waived its arbitration rights. Nevertheless,
Samsung filed a motion to compel arbitration in May 2020, which was
denied without prejudice for docket management purposes. Samsung
refiled the motion in May 2021, arguing that it did not waive its
right to arbitrate because the prerequisites of waiver -- extensive
discovery and prejudice -- are lacking, and the relevant factors do
not support a finding of waiver. The Plaintiffs opposed.
The District Court denied the motion in a letter order, explaining
that Samsung waived its right to arbitrate, and that compelling
arbitration would cause the Plaintiffs to suffer significant
prejudice. The District Court diligently reviewed the factors set
forth in Hoxworth v. Blinder, Robinson & Co., 980 F.2d 912, 926-27
(3d Cir. 1992), determining that of the six relevant factors, five
weighed in favor of finding that Samsung had waived its right to
arbitrate. Samsung appeals.
Samsung originally argued that the District Court's holding was in
error under the Hoxworth factors; however, while this case was
pending, the Supreme Court issued a decision in Morgan. As Samsung
pointed out in supplemental briefing, in Morgan the Supreme Court
expressly 'rejected' the prejudice-based waiver analysis
undergirding the Hoxworth line of cases and similar
prejudice-focused approaches of other Circuits.
The Third Circuit opines that through its actions expressing an
intent to litigate, Samsung waived its right to arbitration. As the
District Court noted, Samsung is a large and sophisticated
corporate leader in electronics and as such is uniquely positioned
to know exactly which models had arbitration agreements for its
products. Therefore, even without the Serial Numbers, Samsung
should have known it could arbitrate the Plaintiffs' claims and yet
expressly went forward with litigation. There is no clear error in
the factual findings of the District Court and, pursuant to Morgan,
Samsung waived its right to arbitrate.
Because it concludes that Samsung waived its arbitration rights
under Morgan, the Third Circuit affirms the order of the District
Court holding that Samsung waived its right to arbitrate.
A full-text copy of the Court's March 7, 2023 Opinion is available
at https://tinyurl.com/4fskd7hh from Leagle.com.
Javier Bleichmar -- jbleichmar@bfalaw.com -- [ARGUED] Bleichmar
Fonti & Auld, 7 Times Square 27th Floor New York, NY 10036, Counsel
for Appellees Thomas Roger White, Jr. and Patricia Cauley.
Simon J. Frankel, Covington & Burling, 415 Mission Street Suite
5400 San Francisco, CA 94105.
John A. Boeglin -- jboeglin@cov.com -- Covington & Burling, 850
10th St., N.W. One City Center Washington, DC 20001.
Brielle A. Basso -- bbasso@gibbonslaw.com -- Michael R. McDonald --
mmcdonald@gibbonslaw.com -- Gibbons, One Gateway Center Newark, NJ
07102, Counsel for the Appellant.
SANTA FE WAREHOUSE: Fails to Pay Proper Wages, Bolanos Alleges
--------------------------------------------------------------
In Ingrid Bolanos, on behalf of all others similarly aggrieved v.
Santa Fe Warehouse, an unknown business entity, and Does 1 through
50, Case No. 23STCV05917 (Cal. Super. Ct., March 17, 2023),
Plaintiff brings her complaint under the Private Attorneys General
Act of 2004, Labor Code sections 2698, et seq., as a representative
action on behalf of the State of California regarding violations of
the Labor Code.
According to the complaint, the Plaintiff and other aggrieved
employees regularly worked periods of more than five hours in a
workday without being provided mandatory thirty-minute, duty-free
meal periods before the end of the fifth hour of work, and further
worked periods of more than ten hours per shift without being
provided a second meal period. Allegedly, the Defendants failed to
maintain a company meal period policy compliant with California
law. The Plaintiff and similarly aggrieved employees were
consistently unable to take timely, thirty-minute uninterrupted
meal periods, and particularly second meal periods, due to
Defendants' rounding and auto deduct policies, says the suit.
The Defendants allegedly violated the California minimum wage laws
by requiring, suffering or permitting Plaintiff and other aggrieved
employees to work without compensation in part by using a rounding
system that, as applied, systematically deprived them of
compensable hours worked because the time recording system
implemented by defendants resulted in understating actual
compensable hours worked due to the rounding. Accordingly,
Plaintiff and similarly aggrieved employees were not paid for all
hours worked causing minimum wage violations pursuant to Labor Code
sections 1194-1199, and all applicable Wage Orders, including Wage
Order 9-2001, says the suit.[BN]
The Plaintiff is represented by:
J. Kirk Donnelly, Esq.
LAW OFFICES OF J. KIRK DONNELLY, APC
2173 Salk Avenue, Suite 250
Carlsbad, CA 92008
Telephone: (760) 209-5894
E-mail: kdonnelly@jkd-law.com
SELECT MEDICAL: Fails to Pay Proper Wages, Marcy Suit Alleges
-------------------------------------------------------------
BENJAMIN MARCY, individually and on behalf of all others similarly
situated, Plaintiff v. SELECT MEDICAL CORPORATION; and SELECT
EMPLOYMENT SERVICES, INC., Defendants, Case No. 1:23-cv-00469-CCC
(M.D. Pa., March 16, 2023) is an action against the Defendant's
failure to pay the Plaintiff and the class overtime compensation
for hours worked in excess of 40 hours per week.
Plaintiff Marcy was employed by the Defendants as staff.
SELECT MEDICAL CORPORATION provides healthcare services. The
Company offers long term care for critically ill patients, as well
as inpatient and outpatient, rehabilitation therapy, and recovery
services to patients suffering from trauma and other serious
conditions. [BN]
The Plaintiff is represented by:
Larry A. Weisberg, Esq.
WEISBERG CUMMINGS, P.C.
2704 Commerce Drive, Suite B
Harrisburg, PA 17110
Telephone: (717) 238-5707
Facsimile: (717) 233-8133
Email: lweisberg@weisbergcummings.com
- and -
Hans A. Nilges, Esq.
NILGES DRAHER LLC
7034 Braucher St NW, Suite B
North Canton, OH 44720
Telephone: (330) 470-4428
Facsimile: (330) 754-1430
Email: hnilges@ohlaborlaw.com
- and -
Matthew J.P. Coffman
COFFMAN LEGAL, LLC
1550 Old Henderson Rd Suite #126
Columbus, OH 43220
Telephone: (614) 949-1181
Facsimile: (614) 386-9964
Email: mcoffman@mcoffmanlegal.com
SEQUOIA BENEFITS: 9th Cir. Affirms Dismissal of Winsor ERISA Suit
-----------------------------------------------------------------
In the case, RACHAEL WRIGHT WINSOR, individually and on behalf of
the RingCentral, Inc. Welfare Benefits Plan, and on behalf of
similarly situated persons; NICOLE BEICHLE, individually and on
behalf of the RingCentral, Inc. Welfare Benefits Plan, and on
behalf of similarly situated person, Plaintiffs-Appellants v.
SEQUOIA BENEFITS & INSURANCE SERVICES, LLC; GREGORY S. GOLUB,
Defendants-Appellees, Case No. 21-16992 (9th Cir.), the U.S. Court
of Appeals for the Ninth Circuit affirms the dismissal of the
Plaintiffs' complaint.
Participants in an ERISA welfare benefits plan sued the manager of
a Multiple Employer Welfare Arrangement (MEWA) for alleged breach
of fiduciary duty. The Plaintiffs are current and former employees
of RingCentral, a technology company. They participated in
RingCentral's employee welfare benefits plan, which is governed by
the Employee Retirement Income Security Act of 1974 (ERISA).
RingCentral sponsored this plan to provide its employees with
benefits such as medical, dental, and vision insurance.
From 2013 to 2019, the RingCentral plan participated in the "Tech
Benefits Program" administered by Defendants Sequoia Benefits and
Insurance Services, LLC, and Gregory S. Golub (collectively,
"Sequoia"). The Tech Benefits Program is a Multiple Employer
Welfare Arrangement (MEWA), see 29 U.S.C. Section 1002(40)(A), that
pools assets from more than 180 employer-sponsored plans into a
trust fund for the purpose of obtaining insurance benefits for
employees at large-group rates that may otherwise be unattainable
for individual employer plans.
RingCentral's ERISA plan was funded in part by contributions from
RingCentral and in part by employee contributions. RingCentral
determined which insurance options to make available to its
employees and how much, if anything, employees were required to
contribute for the different benefits. Under the Tech Benefit
Program's governing documents, RingCentral had broad discretion to
determine employee contributions.
As alleged in the Plaintiffs' complaint, when asked how it
determined the amount employees must contribute, RingCentral did
not identify a specific formula or set of factors and instead said
the decision was based on various factors and discussion. The
record reflects that in some instances, RingCentral paid all the
premium contributions for certain benefit options, with
participating employees paying nothing.
Under the Tech Benefits Program, Sequoia selected the insurance
benefits that would be made available to employers, negotiated the
cost of any given benefit with the insurance provider, and
determined how much each employer plan must contribute to the Tech
Benefits Program's trust fund in exchange for the plan
participants' selected benefits. The insurance companies charged
certain costs for the employee benefits. Participating employers
like RingCentral funded this trust account with plan assets which,
as we have noted, included some employee contributions.
Under this arrangement, Sequoia effectively operated as an
insurance broker between participating employer plans and insurance
companies. As compensation for these services, the insurance
companies paid Sequoia commissions. These commissions were set as a
portion of the total fees and premiums paid to each insurance
company. These commissions paid to Sequoia were not taken directly
from the assets of the Tech Benefits Program but were instead
separately paid by the insurance companies to Sequoia after Sequoia
used the program's assets to pay for the Plaintiffs' insurance
benefits.
A few years after RingCentral began participating in the Tech
Benefits Program, the Plaintiffs filed the putative class action on
behalf of the RingCentral plan and other Tech Benefits Program
participants. RingCentral is not a party to this case. In their
complaint, they asserted that Sequoia owed fiduciary duties to the
plan under ERISA because Sequoia allegedly exercised control over
plan assets through its operation of the Tech Benefits Program.
The Plaintiffs alleged that Sequoia violated its fiduciary duties
in two ways: (1) by receiving and retaining commission payments
from insurers, which plaintiffs regard as kickbacks; and (2) by
negotiating allegedly excessive administrative fees with insurers,
which led to higher commissions for Sequoia.
The district court dismissed the Plaintiffs' complaint for lack of
Article III standing, concluding that they had not alleged
sufficient facts indicating that Sequoia's conduct led them to pay
higher contributions or to receive fewer benefits. The Plaintiffs
were given leave to amend, and they subsequently filed what is now
the operative complaint.
In their amended complaint, the Plaintiffs alleged that Sequoia's
supposed breach of fiduciary duty injured them by requiring them to
pay higher contributions toward their benefits and by allegedly
interfering with their purported equitable ownership interest in
the Tech Benefits Program trust fund. The Plaintiffs contended that
these alleged injuries could be redressed in either of two ways:
(1) through direct disgorgement to plaintiffs of Sequoia's improper
profits, using an equitable remedy such as a constructive trust; or
(2) by forcing Sequoia to reimburse the RingCentral plan. In this
latter circumstance, they claim that the RingCentral plan would
then likely refund the plaintiffs that portion of their
contributions attributable to Sequoia's alleged misconduct.
The district court again dismissed for lack of standing, this time
without leave to amend. It found that they had still provided no
allegations that support an inference that had the Defendants not
charged commissions to the insurers, or had they charged a lower
commission, the Plaintiffs would have contributed less toward their
health benefits. And the court held that the Plaintiffs' theory of
injury based on an equitable ownership interest in the program's
assets was foreclosed by Thole v. U.S. Bank N.A., 140 S.Ct. 1615,
1619 (2020). The Plaintiffs thus had not established an injury in
fact. And even if they had, they had not shown that any injury they
suffered would be redressed by a favorable decision.
The Plaintiffs timely appealed.
The Ninth Circuit begins with the Plaintiffs' first theory of
injury, which is that Sequoia's actions allegedly caused them to
pay higher contributions for their insurance, and that eliminating
Sequoia's commissions and reducing administrative fees would
therefore have lowered their payments. This theory applied to the
allegations in the complaint fails to satisfy the requirements for
Article III standing.
The Ninth Circuit opines that even assuming the Plaintiffs' factual
allegations are true, they have not clearly alleged facts
demonstrating a concrete injury. It opines that the problem with
the Plaintiffs' theory is that they have not pleaded facts tending
to show that Sequoia's alleged breach of fiduciary duty led to them
paying higher contributions. Their allegations underscore the role
that RingCentral played in setting employee contributions and
highlight their failure to plead facts indicating that RingCentral
set those contributions based on overall premium costs.
This deficiency in the Plaintiffs' allegations can also be
understood as a failure to plead causation, the second element of
Article III standing. Even assuming Sequoia's alleged breach of
fiduciary duty resulted in higher total insurance costs for the
RingCentral plan (and that any increased costs were not caused by
other factors), the Ninth Circuit opines that the Plaintiffs' chain
of causation again encounters the same issue: RingCentral's
discretion in setting employee contributions, and the lack of
factual allegations tying RingCentral's employee contribution
amounts to overall premium rates. The Plaintiffs have not
sufficiently alleged that any out-of-pocket financial injuries
would be fairly traceable to Sequoia's alleged breach of fiduciary
duty.
Lastly, the Plaintiffs fail to plead redressability for their
out-of-pocket-injury theory. Their theory that they could
personally recover funds directly from Sequoia lacks sufficient
supporting allegations for much the same reason we have already
explained.
For these reasons, the Plaintiffs' out-of-pocket-injury theory
fails on each requirement of the Article III standing calculus.
The Plaintiffs' second theory of injury is that they retained an
"equitable" ownership interest in the Tech Benefits Program's trust
fund. They rely on a series of cases and secondary sources for the
proposition that the harm of a trustee engaging in self-dealing
with trust assets traditionally provides a basis for a lawsuit on
the part of the trust's beneficiaries. The Plaintiffs contend that
their equitable interest as beneficiaries of the Tech Benefits
Program trust provides them standing to pursue relief such as
surcharge or disgorgement, even if they suffered no tangible
out-of-pocket loss.
The Ninth Circuit opines that the Plaintiffs have not alleged how
this claimed breach concretely affected them. Unlike private trust
beneficiaries, the Plaintiffs have not alleged that they are
entitled to receive the funds held by the program. Instead, they
were contractually entitled to the insurance benefits that Sequoia
agreed to purchase for them with the program's funds -- benefits
that the Plaintiffs have received.
In light of the foregoing, the Ninth Circuit holds that the
Plaintiffs have failed to plead the requirements for Article III
standing. Like the district court, it therefore does not reach
Sequoia's argument that it is not an ERISA fiduciary.
A full-text copy of the Court's March 8, 2023 Opinion is available
at https://tinyurl.com/4kkrh7zc from Leagle.com.
Brock J. Specht -- bspecht@nka.com -- (argued), Paul J. Lukas --
lukas@nka.com -- and Grace I. Chanin -- gchanin@nka.com -- Nichols
Kaster PLLP, Minneapolis, Minnesota; Matthew C. Helland --
helland@nka.com -- AND Daniel S. Brome, Nichols Kaster LLP, San
Francisco, California; for the Plaintiffs-Appellants.
Mark C. Nielsen -- mnielsen@groom.com -- (argued), David N. Levine,
Sarah M. Adams, Kara P. Wheatley, Paul J. Rinefierd, and Kalena R.
Kettering, Groom Law Group Chartered, Washington, D.C.; Jeffrey S.
Bosley -- jeffbosley@dwt.com -- and Andrew G. Row, Davis Wright
Tremaine LLP, San Francisco, California; for thhe
Defendants-Appellees.
Jamie Bowers (argued), Trial Attorney; Thomas Tso, Counsel for
Appellate and Special Litigation; G. William Scott, Associate
Solicitor for Plan Benefits Security; Seema Nanda, Solicitor of
Labor; United States Department of Labor, Office of the Solicitor,
Plan Benefits Security Division; Washington, D.C.; for Amicus
Curiae Secretary of Labor.
Meaghan VerGow -- mvergow@omm.com -- and Alexander Reed --
areed@omm.com -- O'Melveny & Myers LLP, Washington, D.C.; Janet
Galeria and Paul Lettow, United States Chamber Litigation Center,
Washington, D.C.; for Amicus Curiae Chamber of Commerce of the
United States of America.
SOLARWINDS CORP: $26MM Class Settlement to be Heard on July 28
--------------------------------------------------------------
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION
IN RE SOLARWINDS CORPORATION
SECURITIES LITIGATION
Case No. 1:21-cv-00138-RP
CLASS ACTION
SUMMARY NOTICE OF (I) PENDENCY OF CLASS ACTION
AND PROPOSED SETTLEMENT; (II) SETTLEMENT FAIRNESS HEARING; AND
(III) MOTION FOR ATTORNEYS' FEES AND LITIGATION EXPENSES
TO: all persons who purchased or otherwise acquired SolarWinds
Corporation ("SolarWinds") common stock during the period from
October 18, 2018 through December 17, 2020, inclusive (the "Class
Period"), and who were damaged thereby (the "Settlement Class")1:
PLEASE READ THIS NOTICE CAREFULLY. YOUR RIGHTS WILL BE AFFECTED BY
A CLASS ACTION LAWSUIT PENDING IN THIS COURT.
YOU ARE HEREBY NOTIFIED, pursuant to Rule 23 of the Federal Rules
of Civil Procedure and an Order of the United States District Court
for the Western District of Texas (the "Court"), that the
above-captioned securities class action (the "Action") is pending
in the Court.
YOU ARE ALSO NOTIFIED that Lead Plaintiff in the Action, on behalf
of itself and the Settlement Class, has reached a proposed
settlement of the Action for $26,000,000 in cash (the
"Settlement"). If approved, the Settlement will resolve all claims
in the Action.
A hearing will be held on July 28, 2023 at 2:00 p.m., before the
Honorable Robert Pitman at the United States District Court for the
Western District of Texas, Austin Division, Courtroom 4 of the
United States Courthouse, 501 West Fifth Street, Austin, Texas
78701, to determine: (i) whether the proposed Settlement should be
approved as fair, reasonable, and adequate; (ii) whether, for
purposes of the proposed Settlement only, the Action should be
certified as a class action on behalf of the Settlement Class, Lead
Plaintiff should be certified as Class Representative for the
Settlement Class, and Lead Counsel should be appointed as Class
Counsel for the Settlement Class; (iii) whether the Action should
be dismissed with prejudice against Defendants, and the Releases
specified and described in the Stipulation and Agreement of
Settlement dated November 28, 2022 (and in the Notice) should be
granted; (iv) whether the proposed Plan of Allocation should be
approved as fair and reasonable; and (v) whether Lead Counsel's
application for an award of attorneys' fees and expenses should be
approved.
If you are a member of the Settlement Class, your rights will be
affected by the pending Action and the Settlement, and you may be
entitled to share in the Net Settlement Fund. If you have not yet
received the Notice and Claim Form, you may obtain copies of these
documents by contacting the Claims Administrator at: SolarWinds
Securities Litigation, c/o Epiq, P.O. Box 3217, Portland, OR
97208-3217, 1-877-890-0042,
info@SolarWindsSecuritiesLitigation.com. Copies of the Notice and
Claim Form can also be downloaded from the Settlement website,
www.SolarWindsSecuritiesLitigation.com.
If you are a member of the Settlement Class, in order to be
eligible to receive a payment from the Settlement, you must submit
a Claim Form postmarked (or submitted online) no later than July 7,
2023. If you are a Settlement Class Member and do not submit a
proper Claim Form, you will not be eligible to receive a payment
from the Settlement, but you will nevertheless be bound by any
judgments or orders entered by the Court in the Action.
If you are a member of the Settlement Class and wish to exclude
yourself from the Settlement Class, you must submit a request for
exclusion such that it is received no later than July 7, 2023, in
accordance with the instructions set forth in the Notice. If you
properly exclude yourself from the Settlement Class, you will not
be bound by any judgments or orders entered by the Court in the
Action and you will not be eligible to receive a payment from the
Settlement.
Any objections to the proposed Settlement, the proposed Plan of
Allocation, or Lead Counsel's motion for attorneys' fees and
expenses must be filed with the Court and delivered to Lead Counsel
and SolarWinds' Counsel such that they are received no later than
July 7, 2023, in accordance with the instructions set forth in the
Notice.
Please do not contact the Court, the Office of the Clerk of the
Court, Defendants, or their counsel regarding this notice. All
questions about this notice, the proposed Settlement, or your
eligibility to participate in the Settlement should be directed to
the Claims Administrator or Lead Counsel.
Requests for the Notice and Claim Form should be made to:
SolarWinds Securities Litigation
c/o Epiq
P.O. Box 3217
Portland, OR 97208-3217
1-877-890-0042
info@SolarWindsSecuritiesLitigation.com
www.SolarWindsSecuritiesLitigation.com
Inquiries, other than requests for the Notice and Claim Form,
should be made to Lead Counsel:
John Rizio-Hamilton, Esq.
Bernstein Litowitz Berger & Grossmann LLP
1251 Avenue of the Americas, 44th Floor
New York, NY 10020
1-800-380-8496
settlements@blbglaw.com
By Order of the Court
1 Certain persons and entities are excluded from the Settlement
Class by definition, as set forth in the full Notice of (I)
Pendency of Class Action and Proposed Settlement; (II) Settlement
Fairness Hearing; and (III) Motion for Attorneys' Fees and
Litigation Expenses (the "Notice"), available at
www.SolarWindsSecuritiesLitigation.com
STAR TRIBUNE: Minnesota Court Refuses to Dismiss Feldman VPPA Suit
------------------------------------------------------------------
In the case, Kyle Feldman, on behalf of himself and all others
similarly situated, Plaintiff v. Star Tribune Media Company LLC,
Defendant, File No. 22-cv-1731 (ECT/TNL) (D. Minn.), Judge Eric C.
Tostrud of the U.S. District Court for the District of Minnesota
denies the Defendant's Motion to Dismiss.
Mr. Feldman is a startribune.com subscriber, and he occasionally
watches videos on that website. In the case, Mr. Feldman alleges
that the Defendant, the website's owner, violated the federal Video
Privacy Protection Act ("VPPA"), 18 U.S.C. Section 2710, by sharing
his video-viewing history with Facebook using a code analytics tool
called Facebook Pixel.
Mr. Feldman hopes to represent a class of similarly situated
startribune.com subscribers. The proposed class would include: "All
persons in the United States who have a Facebook account,
subscribed to startribune.com, and watched one or more videos on
that Website."
The Star Tribune developed, owns, and operates a website,
startribune.com. The website offers an array of video content. The
Star Tribune monetizes its website, in part, by collecting and
disclosing subscriber information to Facebook. The website uses a
code analytics tool called "Facebook Pixel," which tracks the
actions of subscribers, such as the pages or videos they view. When
a Facebook account is created, a corresponding Facebook ID number
is also created. A user's Facebook profile can be identified and
viewed by appending the user's Facebook ID number to the end of
"Facebook.com."
Mr. Feldman subscribes to startribune.com. He also has a Facebook
account, which he is perpetually logged into. His Facebook profile
contains his name. Since becoming a startribune.com subscriber in
2011, Mr. Feldman regularly has watched videos on startribune.com
while logged into his Facebook account on the same web browser and
device. Each time Mr. Feldman has watched a video on
startribune.com, the Star Tribune disclosed his Facebook ID and the
URL of the video that he viewed to Facebook via Facebook Pixel. Mr.
Feldman alleges that the Star Tribune violated the VPPA each time
it knowingly disclosed his Facebook ID and viewed-video-URLs (and
those of would-be class members) to Facebook via Facebook Pixel.
The Defendant seeks dismissal of the case on jurisdictional and
merits grounds. It argues that Mr. Feldman lacks Article III
standing. Alternatively, it argues that Mr. Feldman's claim fails
on the merits.
Judge Tostrud denies the Star Tribune's motion. He holds that the
better answer is that Mr. Feldman suffered a concrete injury in
fact traceable to the Star Tribune, meaning there is subject-matter
jurisdiction over the case. And the Complaint includes factual
allegations plausibly showing each of the VPPA's essential
elements.
First, Judge Tostrud concludes that Mr. Feldman has plausibly
alleged a concrete injury as required by Article III. Mr. Feldman
alleges intangible harm associated with the nonconsensual sharing
of his private information -- that is, the videos he watched on
startribune.com—with a third party. He alleges that the
disclosure of his video-viewing history is an outrageous invasion
of privacy and would be offensive to a reasonable person. And he
alleges that Congress enacted the VPPA in recognition of the
outrageous nature of such invasions.
Judge Tostrud's conclusion that a plaintiff like Mr. Feldman has
suffered a concrete injury for purposes of Article III standing to
assert a VPPA claim is also supported by every federal circuit
court that has considered the issue. Considering the Eighth
Circuit's recognition of the common law tradition of lawsuits for
invasion of privacy, and the evidently close relationship between
Feldman's VPPA claim in this case and the intrusion-upon-seclusion
tort as it has been traditionally understood, he says Mr. Feldman
has done enough. The uniformity with which the circuits have
decided this issue just reinforces this conclusion.
Next, Judge Tostrud concludes that Mr. Feldman has alleged a direct
causal connection between the Star Tribune's conduct and his injury
under the VPPA. Hence, traceability is not absent.
Lastly, Judge Tostrud concludes that the Complaint's allegations
plausibly show that the Star Tribune disclosed information
connecting Mr. Feldman to video material he requested or obtained.
The allegations plausibly showing that personally identifiable
information was consciously disclosed also suffice, and the
Complaint includes such allegations. And, whether Mr. Feldman
consented to the disclosure of his personally identifiable
information in a way that meets Section 2710(b)(2)(B) seems like an
affirmative defense that the Star Tribune bears the burden to plead
and prove. Better to leave the consent/safe-harbor question to be
addressed, if at all, on a sufficiently developed factual record
and more thorough legal arguments.
Based on the foregoing, Judge Tostrud denies the Defendant's Motion
to Dismiss.
A full-text copy of the Court's March 7, 2023 Opinion & Order is
available at https://tinyurl.com/yzshanvh from Leagle.com.
Steven Liddle -- SLiddle@LSCCounsel.com -- Nicholas Alexander
Coulson -- NCoulson@LSCCounsel.com -- and Lance T. Spitzig --
LSpitzig@LSCCounsel.com -- Liddle Sheets Coulson P.C., Detroit, MI;
and Nathaniel James Weimar -- nweimer@tkz.com -- Tewksbury &
Kerfeld, P.A., Minneapolis, MN, for Plaintiff Kyle Feldman.
Jeffrey P. Justman -- jeff.justman@faegredrinker.com -- and
Anderson Tuggle -- anderson.tuggle@faegredrinker.com -- Faegre
Drinker Biddle & Reath LLP, Minneapolis, MN, for Defendant Star
Tribune Media Company LLC.
STUPP BROS: Conditional Class Cert Bid Filing Extended to June 5
----------------------------------------------------------------
In the class action lawsuit captioned as Stoklosa v. Stupp Bros.,
Inc., Case No. 3:21-cv-00162 (M.D. La.), the Hon. Judge Shelly D.
Dick entered an order granting the motion for extension of time to
file motion for conditional class Certification of collective
action and for notice to prospective class members to June 5, 2023.
The nature of suit states Labor Litigation.
Stupp is a privately-owned company focused on providing
infrastructure development in the United States.[CC]
THAI GREENLEAF: E.D. New York Grants Chen's Bid to Amend Complaint
------------------------------------------------------------------
Judge Margo K. Brodie of the U.S. District Court for the Eastern
District of New York grants in part and denies in part the
Plaintiff's motion to amend complaint in the lawsuit titled DONG
HUI CHEN, XIAOYAN ZHONG, and all other persons similarly situated,
Plaintiffs v. THAI GREENLEAF RESTAURANT CORP., d/b/a Thai Green
Leaf, XIAOGUANG LIN, a/k/a Xiao Guang Lin, XIAOKAI LIN, a/k/a Xiao
Kai Lin, HENGKENG LIN, a/k/a Heng Keng Lin, a/k/a Kenny Lin, YIMEI
LIN, a/k/a Yi Mei Lin, WEN CHEN, a/k/a Chen Wen, and DAN WEN,
Defendants, Case No. 21-CV-1382 (MKB) (JMW) (E.D.N.Y.).
Plaintiff Dong Hui Chen commenced the putative class action on
March 16, 2021, against Thai Greenleaf Restaurant Corp., doing
business as Thai Green Leaf; Thai Green Leaf Inc., doing business
as Thai Green Leaf; Xiaoguang Lin, also known as Xiao Guang Lin;
Xiaokai Lin, also known as Xiao Kai Lin; Hengkeng Lin, also known
as Heng Keng Lin and Kenny Lin; Yimei Lin, also known as Yi Mei
Lin; Wen Chen, also known as Chen Wen; Dan Wen; and Xiurong Zhang,
also known as Xiu Rong Zhang.
The Plaintiff alleged violations of the Fair Labor Standards Act
("FLSA") and the New York Labor Law ("NYLL"), arising from his 2020
employment at Thai Green Leaf Restaurant.
On May 13, 2022, the Plaintiff moved to amend the Complaint
pursuant to Rule 15(a), seeking to (1) add Plaintiff Xiaoyan Zhong,
(2) remove the dismissed Defendants from the Complaint; (3) assert
FLSA and NYLL claims against Greenleaf Restaurant Inc., doing
business as Thai Green Leaf, and Feng Zhu Chen as successors to
Thai Greenleaf Restaurant Corp., (4) assert fraudulent transfer
claims against all Defendants, and (5) remove irrelevant causes of
action. The Defendants opposed the motion.
On Dec. 12, 2022, the Court referred the Plaintiff's motion to
Magistrate Judge James M. Wicks for a report and recommendation
(Order dated Dec. 12, 2022). By report and recommendation dated
Dec. 13, 2022, Judge Wicks recommended that the Court grant the
Plaintiff's requests to (1) add Xiaoyan Zhang as a Plaintiff, (2)
remove Defendants Thai Green Leaf Inc. and Xiurong Zhang, (3)
assert FLSA and NYLL claims against Greenleaf Restaurant Inc. and
Feng Zhu Chen as successor defendants, and (4) remove any
irrelevant causes of action (the "R&R").
Judge Wicks recommended that the Court deny the Plaintiff's request
to assert a fraudulent transfer claim against all Defendants.
No objections to the R&R have been filed and the time for doing so
has passed.
The Court has reviewed the unopposed R&R and, finding no clear
error, adopts the R&R pursuant to 28 U.S.C. Section 636(b)(1).
For these reasons, the Court adopts the R&R and grants the
Plaintiff's motion in part and denies it in part. The Court grants
the Plaintiff leave to file an Amended Complaint that (1) adds
Xiaoyan Zhang as a Plaintiff, (2) removes Defendants Thai Green
Leaf Inc. and Xiurong Zhang, (3) asserts FLSA and NYLL claims
against Greenleaf Restaurant Inc. and Feng Zhu Chen as successor
Defendants, and (4) removes any irrelevant causes of action.
The Court denies the Plaintiff's request to assert a fraudulent
transfer claim.
A full-text copy of the Court's Order dated March 6, 2023, is
available at https://tinyurl.com/yuk3krur from Leagle.com.
THREE S&J FAMILY: Castano Seeks to Recover Unpaid Minimum, OT Wages
-------------------------------------------------------------------
In Johan Castaño and Genesis Maradiega v. Three S&J Family Corp.
d/b/a Point for Ladies and Kim Sungho, Case No. 1:23-cv-02106
(E.D.N.Y., March 19, 2023), the Plaintiffs bring this action on
behalf of themselves and other similarly situated employees of
Defendants Three S&J Family Corp. d/b/a Point For Ladies and Kim
Sungho pursuant to the Fair Labor Standards Act, the New York Labor
Law, the Wage Theft Prevention Act, and related provisions from
Title 12 of New York Codes, Rules, and Regulations, seeking to
recover, inter alia, unpaid minimum and overtime wage compensation
for the Plaintiffs, former employees of Three S&J Family Corp.
The Plaintiffs claim that Three S&J Family Corp and Sungho failed
to pay them with the applicable minimum wage, and overtime
compensation at rates of one and one-half times the regular rate of
pay for each hour worked in excess of forty hours in a workweek. In
addition, Three S&J Family Corp and Sungho also failed to satisfy
the FLSA's recordkeeping requirements. For the violations of NYLL,
the defendants failed to Plaintiffs a notice containing the rate of
pay and basis and accurate wage statements.
Three S&J Family Corp. employed Plaintiffs at its offices at 8213
Roosevelt Avenue, Jackson Heights, New York 11372, from
approximately August 2021 until November 2022, where Castaño was
primarily employed as a sales assistant. Maradiega was also
employed as an assistant from approximately August 2018 until
October 2022.
Owned and managed by Sungho, Three S&J Family Corp. is principally
engaged in clothing retail.[BN]
The Plaintiffs are represented by:
Lina Stillman, Esq.
STILLMAN LEGAL, P.C.
42 Broadway, 12th Floor
New York, NY 10004
Telephone: (212) 203-2417
TRADER JOE'S: Shausmanov Consumer Suit Transferred to S.D. Cal.
---------------------------------------------------------------
The case styled VYACHESLAV SHAUSMANOV, individually, and on behalf
of all others similarly situated, Plaintiff v. TRADER JOE’S
COMPANY, a California corporation, Defendant, Case No.
2:23-cv-00241, was transferred from the United States District
Court for the Central District of California to the United States
District Court for the Southern District of California on Mar. 10,
2023.
The Clerk of Court for the Southern District of California assigned
Case No. 3:23-cv-00462-LAB-NLS to the proceeding.
The Plaintiff, on behalf of himself and on behalf of a New Jersey
state class and a nationwide class of other similarly situated
individuals who purchased and consumed the Chocolate Bars, brings
this class action lawsuit seeking injunctive relief and to recover
damages from Trader Joe's for violation of applicable California
consumer protection statutes.
Trader Joe's Company is an American chain of grocery stores
headquartered in Monrovia, California.[BN]
The Plaintiff is represented by:
Jaclyn L. Anderson, Esq.
MaryBeth LippSmith, Esq.
LIPPSMITH LLP
555 S. Flower Street, Suite 4400
Los Angeles, CA 90071
Telephone: (213) 344-1820
Facsimile: (213) 513-2495
E-mail: jla@lippsmith.com
mb@lippsmith.com
g@lippsmith.com
The Defendant is represented by:
Dawn Sestito, Esq.
Raymond Collins Kilgore, Esq.
O'MELVENY & MYERS
400 South Hope Street, Suite 1050
Los Angeles, CA 90071-2899
Telephone: (213) 430-6000
E-mail: dsestito@omm.com
- and -
Danielle Rebecca Feuer, Esq.
O'MELVENY AND MYERS LLP
7 Time Square
New York, NY 10036
Telephone: (213) 430-6069
TURQUOISE HILL: Court Seeks UK's Judicial Help in Securities Suit
-----------------------------------------------------------------
In the case, IN RE TURQUOISE HILL RESOURCES LTD. SECURITIES
LITIGATION, Case No. 1:20-cv-08585-LJL (S.D.N.Y.), Judge Lewis J.
Liman of the U.S. District Court for the Southern District of New
York requests the Senior Master of the King's Bench Division of the
High Court of England and Wales to cause the appropriate orders to
be issued to direct Dr. Maurice Duffy to produce the documents
listed in Exhibit 1 and to give oral testimony on the topics
enumerated in Exhibit 2, which are to be used at trial in these
proceedings.
The Plaintiffs allege that Defendants Rio Tinto PLC, Rio Tinto
Limited, Jean-Sebastien Jacques, and Arnaud Soirat violated United
States Securities laws by failing to timely disclose schedule
delays and budget overruns that occurred at the Oyu Tolgoi mine.
The Plaintiffs and the other members of the proposed Class are
investors in Turquoise Hill Resources Ltd., which was a publicly
traded issuer whose sole business and asset was its ownership
interest in the Oyu Tolgoi mine.
During the Class Period (July 17, 2018 through July 31, 2019),
Turquoise Hill owned 66% of the Oyu Tolgoi mine, which was operated
by Rio Tinto. (The Mongolian Government owned 34% of the mine.) The
Plaintiffs allege that they and the other Class members were harmed
when the truth concerning the schedule delays and budget overruns
at Oyu Tolgoi caused massive declines in the price of Turquoise
Hill securities. The Plaintiffs seek damages and other relief for
injury caused by the Defendants' alleged wrongdoing.
Based on the Defendants' allegedly knowingly or recklessly false or
misleading statements about Oyu Tolgoi, the Plaintiffs allege that
the Defendants violated (1) Section 10(b) of the Securities
Exchange Act of 1934 and Securities and Exchange Commission Rule
10b-5; and (2) Section 20(a) of the Exchange Act.
The Defendants moved to dismiss the Plaintiffs' claims on various
legal grounds, including failing to state a claim for relief, and
the Court sustained some of their claims and dismissed others.
Generally, they aver that none of the disclosures regarding Oyu
Tolgoi were false or misleading when made. The Oyu Tolgoi mine is a
highly complex project, and the Defendants' position is that they
disclosed any delays or cost overruns promptly after becoming aware
of them. Further, the Defendants will argue that even if any of the
statements concerning the Oyu Tolgoi mine were false or misleading,
these alleged false or misleading statements were made innocently,
and not with an intent to deceive, because they had no specific
motive to defraud investors and there is no evidence that these
allegedly false or misleading statements were made with scienter.
To prove their claims at trial, the Plaintiffs must prove that the
Defendants made materially false or misleading statements about Oyu
Tolgoi and that they did so with scienter, i.e., knowingly or
recklessly. They have represented and furnished sufficient evidence
to satisfy the Court that Dr. Duffy has personal knowledge of
matters material and relevant to the matters at issue in the
proceedings.
The evidence sought by the Plaintiffs relates to the matters in
question. Because Dr. Duffy resides outside the Court's subpoena
power and therefore cannot be compelled to testify at trial, the
Plaintiffs seek the production of documents in Dr. Duffy's
possession to support their claims at trial regarding his work for
Rio Tinto, his complaints to Rio Tinto, and the Oyu Tolgoi
project's progress and budget, as well as Dr. Duffy's testimony
about the same. Dr. Duffy, through his consulting firm, GFI
Blackswan, provided executive coaching services to Rio Tinto
employees since 2007.
Judge Liman presents his compliments to the Senior Master of the
King's Bench Division for assistance in obtaining evidence to be
used at trial in the captioned civil proceeding before him. He says
the request is made pursuant to Chapter I of the Hague Convention
of 18 March 1970 on the Taking of Evidence in Civil or Commercial
Matters. The Southern District is a court of law and equity and has
subject matter jurisdiction over the action pursuant to 28 U.S.C.
Section 1331 and 15 U.S.C. Sections 15(a) and 26.
Judge Liman has determined that it would further the interests of
justice and that justice cannot be completely done between the
parties without documents in the possession of Dr. Duffy and the
testimony, under oath, of Dr. Duffy, who resides within the Senior
Master of the King's Bench Division's jurisdiction. It is an action
alleging violation of United States securities laws. Dr. Duffy is a
former Rio Tinto contractor and is a significant witness in support
of the Plaintiffs' allegation that the Defendants violated
securities laws by failing to timely disclose alleged schedule
delays and cost overruns at the Oyu Tolgoi mine. The evidence
sought by the Applicants is necessary for the just and proper
disposal of the proceedings and is for use in the trial of the
action.
Judge Liman says Dr. Duffy's testimony is not available from any
source within the jurisdiction of the Southern District, and cannot
be obtained by any means other than pursuant to an order of an
appropriate judicial authority of the United Kingdom, compelling
the witness to appear for examination. Dr. Duffy, a non-party to
this action, resides at 1 Warkworth Terrace, North Shields,
Tynemouth, NE30 4ES, United Kingdom.
The Southern District's request is made with the understanding
that, and on the basis that any order made pursuant to this
request: (1) will not require Dr. Duffy to commit any offense; (2)
will not require Dr. Duffy to undergo a broader form of inquiry
than he would have if the litigation were conducted in the United
Kingdom; and (3) will not violate the laws of civil procedure of
any United Kingdom court.
Judge Liman, therefore, and in conformity with Article 3 of the
Hague Convention, respectfully requests that the Senior Master of
the King's Bench Division, in furtherance of justice by proper and
usual process of its court, causes Dr. Duffy to produce the
documents listed in Exhibit 1 and to appear before an official
examiner authorized to administer oaths, and to take testimony, at
a precise time to be fixed between counsel for the Applicant and
the witness or (if applicable) the appointed Examiner under 34.15,
and answer on his oath or affirmation questions and
cross-questions, and that it will direct his deposition to be
transcribed and recorded by video, and the transcript and video be
sent to counsel for the parties in the action, who so request a
copy. The Southern District stands ready to provide similar
judicial assistance to judicial authorities in the United Kingdom
when required.
Judge Liman has reviewed each of the document requests and
deposition topics attached to his letter of request considering the
allegations in the Second Amended Complaint, dated Sept. 21, 2021,
the Plaintiffs' claims that the Court sustained in its decision on
the Defendants' motions to dismiss the Complaint, and the
Defendants' Answer to the Complaint. He has determined that each of
the document requests and deposition topics seeks evidence that is
relevant to the Plaintiffs' claims and the Defendants' defenses for
use at the trial of the action.
Specifically, the Document Requests are relevant to the following
Complaint paragraphs: No. 1: paragraphs 133-38; No. 2: paragraph
287; No. 3: paragraph 288; No. 4: paragraphs 10-12, 132-36; No. 5:
paragraphs 138, 287; No. 6: paragraph 24; No. 7: paragraph 288; No.
9: paragraphs 25, 287-88; No. 10: paragraphs 10-12, 133-40,
287-88.
The deposition topics are relevant to the following Complaint
paragraphs: No. 1: paragraphs 25, 277-78, 288; No. 2: paragraphs
10-12, 132-38, 287; No. 3: paragraphs 10-12, 132-38, 287; No. 4:
paragraphs 10-12, 25, 132-38, 277-78, 288; No. 5: paragraphs 10-12,
25, 132-38, 277-78, 288; No. 6: paragraphs 10-12, 25, 133-38, 276,
287; No. 7: paragraphs 25, 132-38, 277-78; No. 8: paragraphs 288.
Therefore, Judge Liman asks that the Senior Master of the King's
Bench Division issues orders directing Dr. Duffy to produce the
documents listed in Exhibit 1 and to give oral testimony on the
topics enumerated in Exhibit 2, which are to be used at trial in
these proceedings.
A full-text copy of the Court's March 8, 2023 Request is available
at https://tinyurl.com/yrvzv6zd from Leagle.com.
TURQUOISE HILL: UK Court Assistance Sought in Securities Class Suit
-------------------------------------------------------------------
In the case, IN RE TURQUOISE HILL RESOURCES LTD. SECURITIES
LITIGATION, Case No. 1:20-cv-08585-LJL (S.D.N.Y.), Judge Lewis J.
Liman of the U.S. District Court for the Southern District of New
York requests the Senior Master of the King's Bench Division of the
High Court of England and Wales to cause the appropriate orders to
be issued to direct Mr. Richard Bowley to produce the documents
listed in Exhibit 1 and to give oral testimony on the topics
enumerated in Exhibit 2, which are to be used at trial in these
proceedings.
The Plaintiffs allege that Defendants Rio Tinto PLC, Rio Tinto
Limited, Jean-Sebastien Jacques, and Arnaud Soirat violated United
States Securities laws by failing to timely disclose schedule
delays and budget overruns that occurred at the Oyu Tolgoi mine.
The Plaintiffs and the other members of the proposed Class are
investors in Turquoise Hill Resources Ltd., which was a
publicly-traded issuer whose sole business and asset was its
ownership interest in the Oyu Tolgoi mine.
During the Class Period (July 17, 2018 through July 31, 2019),
Turquoise Hill owned 66% of the Oyu Tolgoi mine, which was almost
exclusively operated by Rio Tinto. The Mongolian Government owned
34% of the mine. The Plaintiffs allege that they and the other
Class members were harmed when the truth concerning the schedule
delays and budget overruns at Oyu Tolgoi caused massive declines in
the price of Turquoise Hill securities. They seek damages and other
relief for injury caused by the Defendants' alleged wrongdoing.
The Defendants moved to dismiss the Plaintiffs' claims on various
legal grounds, including failing to state a claim for relief, and
the Court sustained some of the Plaintiffs' claims and dismissed
others. Generally, they aver that none of the disclosures regarding
Oyu Tolgoiwere false or misleading when made. The Oyu Tolgoi mine
is a highly complex project, and their position is that they
disclosed any delays or cost overruns promptly after becoming aware
of them. Further, the Defendants will argue that even if any of the
statements concerning the Oyu Tolgoi mine were false or misleading,
these alleged false or misleading statements were made innocently,
and not with an intent to deceive, because they had no specific
motive to defraud investors and that these allegedly false or
misleading statements were not made with scienter.
To prove their claims at trial, the Plaintiffs must prove that the
Defendants made materially false or misleading statements about the
Oyu Tolgoi project and that they did so with scienter, i.e.,
knowingly or recklessly.
The Plaintiffs have represented and furnished sufficient evidence
to satisfy the Court that Mr. Bowley has personal knowledge of
matters material and relevant to the matters at issue in the
proceedings. The evidence sought by the Plaintiffs relates to the
matters in question. Because Mr. Bowley resides outside the Court's
subpoena power and therefore cannot be compelled to testify at
trial, the Plaintiffs seek the production of documents in Mr.
Bowley's possession to support their claims at trial regarding his
work for Rio Tinto, his complaints to Rio Tinto, and the Oyu Tolgoi
project's progress and budget, as well as his testimony about the
same.
Mr. Bowley served as Rio Tinto's General Manager for Strategic
Projects and Chief Advisor for Oyu Tolgoi, and he is a significant
witness. He is mentioned in the Complaint no fewer than 234 times.
According to the Complaint, Mr. Bowley was brought in to work on
the Oyu Tolgoi project to assess "how bad" the schedule delays and
cost overruns were, which is a central topic in the lawsuit, and
was in an "excellent position" to evaluate the status of the
project. In addition, Mr. Bowley allegedly was fired for raising
his concerns with Oyu Tolgoi's progress, and after he was fired,
Mr. Bowley claimed that Rio Tinto's compliance was deficient, which
sparked an investigation.
Proving these allegations will be an important part of the
Plaintiffs' claims. Thus, the Plaintiffs need documents concerning
the allegations attributed to Mr. Bowley in the Complaint so the
Plaintiffs can seek to prove, and the jury can assess, the veracity
of these allegations at trial.
Judge Liman presents its compliments to the appropriate judicial
authority of the United Kingdom for assistance in obtaining
evidence to be used at trial in the captioned civil proceeding
before him. His request is made pursuant to Chapter I of the Hague
Convention of 18 March 1970 on the Taking of Evidence in Civil or
Commercial Matters. The Southern District is a court of law and
equity and has subject matter jurisdiction over this action
pursuant to 28 U.S.C. Section 1331 and 15 U.S.C. Sections 15(a) and
26.
Judge Liman has determined that it would further the interests of
justice and that justice cannot be completely done between the
parties without documents in the possession of Mr. Bowley and the
testimony, under oath, of Mr. Bowley, who resides within the United
Kingdom court's jurisdiction. It is an action alleging violation of
United States securities laws. Mr. Bowley is a former employee of
Rio Tinto and is a significant witness concerning the Plaintiffs'
allegations that the Defendants violated securities laws by failing
to timely disclose alleged schedule delays and cost overruns at the
Oyu Tolgoi mine. The evidence sought by the Applicants is necessary
for the just and proper disposal of the proceedings and is for use
in the trial of this action.
Mr. Bowley's testimony is not available from any source within the
jurisdiction of the Southern District, and cannot be obtained by
any means other than pursuant to an order of an appropriate
judicial authority of the United Kingdom, compelling the witness to
appear for examination. Mr. Bowley, a non-party to the action,
resides at 1 Hazeldown Close, River, Dover, Kent, CT17 0NJ.
Judge Liman's request is made with the understanding that, and on
the basis that, any order made pursuant to the request: (1) will
not require Mr. Bowley to commit any offense; (2) will not require
Mr. Bowley to undergo a broader form of inquiry than he would have
if the litigation were conducted in the United Kingdom; and (3)
will not violate the laws of civil procedure of any United Kingdom
court.
Judge Liman, therefore, and in conformity with Article 3 of the
Hague Convention, respectfully requests that the Senior Master of
the King's Bench Division, in furtherance of justice by proper and
usual process of the court, causes Mr. Bowley to produce the
documents listed in Exhibit 1 and to appear before an official
examiner authorized to administer oaths, and to take testimony, at
a precise time to be fixed between counsel for the Applicants and
the witness or (if applicable) the appointed Examiner under 34.15,
and answer on his oath or affirmation questions and
cross-questions, and that it will direct his deposition to be
transcribed and recorded by video, and the transcript and video be
sent to counsel for the parties in the action, who so request a
copy. The Southern District stands ready to provide similar
judicial assistance to judicial authorities in the United Kingdom
when required.
Judge Liman has reviewed each of the document requests and
deposition topics attached to this letter of request in light of
the allegations of the Second Amended Complaint, dated Sept. 16,
2021, the Plaintiffs' claims that the Court sustained in its
decision on the Defendants' motions to dismiss the Complaint, and
the Defendants' Answer to the Complaint. He has determined that
each of the document requests and deposition topics seeks evidence
that is relevant to the Plaintiffs' claims and the Defendants'
defenses for use at the trial of the action.
In particular, the document requests are relevant to the following
Complaint paragraphs: No. 1: paragraph 116; No. 2: paragraphs 144,
199; No. 3: paragraph 119; No. 4: paragraphs 118, 127, 268; No. 5:
paragraph 141; No. 6: paragraphs 179-83; No. 7: paragraphs 209-14;
No. 8: paragraphs 221; No. 9: paragraphs 222-29; No. 10: paragraphs
14-17, 20, 23, 111-22, 127, 141-52, 166-68, 171, 179-81, 205-20;
No. 11: paragraphs 24, 262; No. 12: paragraph 284; and No. 13:
paragraphs 14, 20-21, 111-22, 126-27, 141-52, 165-71, 179-83,
205-29.
The deposition topics are relevant to the following Complaint
paragraphs: No. 1: paragraphs 14-17, 20, 23, 111-22, 127, 141-52,
166-68, 171, 179-81, 205-20; No. 2: paragraphs 111-22, 221-29; No.
3: paragraphs 111-22, 141-52; No. 4: paragraphs 165-83; No. 5: ¶¶
111-22, 141-52, 205-29; No. 6: paragraphs 111-22, 141-52, 205-29;
No. 7: paragraphs 221-29; No. 8: paragraphs 111-22, 141-52; No. 9:
paragraphs 15, 141, 272; and No. 10: paragraph 286.
Therefore, Judge Liman asks the Senior Master of the King's Bench
Division to permit the examination of Mr. Bowley to be conducted by
(i) attorneys for the Plaintiffs or their other duly authorized
representatives, qualified to practice law in United States
jurisdictions and/or in England and Wales, nominated by the
Plaintiffs, and that the Defendants be permitted to cross-examine
Mr. Bowley; and (ii) the witness's counsel (if instructed).
A full-text copy of the Court's March 8, 2023 Order is available at
https://tinyurl.com/yp5cwk3b from Leagle.com.
WEBER TREE: Fails to Pay Proper Wages, Escalona Suit Alleges
------------------------------------------------------------
WILFREDO ESCALONA, individually and on behalf of all others
similarly situated, Plaintiff v. WEBER TREE SERVICE, INC.; and
SIEGFRIED WEBER, Defendant, Case No. 6:23-cv-06159 (W.D.N.Y., March
15, 2023) seeks to recover from the Defendants unpaid wages and
overtime compensation, interest, liquidated damages, attorneys'
fees, and costs under the Fair Labor Standards Act.
Plaintiff Escalona was employed by the Defendants as tree trimmer.
WEBER TREE SERVICE, INC. is a residential and commercial tree care
company located at Rochester, New York. [BN]
The Plaintiff is represented by:
Nolan Klein, Esq.
LAW OFFICES OF NOLAN KLEIN, P.A.
5550 Glades Rd., Ste. 500
Boca Raton, FL 33431
Telephone: (954) 745-0588
Email: klein@nklegal.com
amy@nklegal.com
melanie@nklegal.com
WELCH FOODS: Clevenger Suit Remanded to Orange County Super. Court
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Judge Cormac J. Carney of the U.S. District Court for the Central
District of California, Southern Division, grants the Plaintiffs'
motion to remand the case, DARREN CLEVENGER and DAVID BLOOM,
individually and on behalf of themselves and all others similarly
situated, Plaintiffs v. WELCH FOODS INC., PIM BRANDS, INC., and
DOES 1 through 25, inclusive, Defendants, Case No. SACV
23-00127-CJC (JDEx) (C.D. Cal.).
In the putative class action lawsuit, Clevenger and Bloom allege
that Defendants Welch Foods Inc., PIM Brands, Inc., and unnamed
Does include nonfunctional "slack-fill" in boxes of their Welch's
Reduced Sugar Fruit Snacks, Fruit 'n Yogurt Snacks, and certain
boxes of Welch's Fruit Snacks in violation of California's Unfair
Competition Law ("UCL"), Cal. Bus. & Prof. Code Sections
17200-17210.
The instant action is related to a case currently pending before
the Court, Clevenger v. Welch Foods Inc. et al., SACV 20-01859-CJC
(JDEx), which alleges substantially similar claims. In that case,
the plaintiffs filed a complaint in state court alleging claims
under the UCL and the Consumer Legal Remedies Act ("CLRA"), Cal.
Civ. Code Sections 1750-1784. They sought restitution and an
injunction under the UCL, and restitution and money damages under
the CLRA.
The Defendants removed the case to the Court pursuant to the Class
Action Fairness Act ("CAFA"), 28 U.S.C. Sections 1332(d)(2), (5).
In December 2022, the Court granted the Defendants' Motion for
Judgment on the Pleadings as to the plaintiffs' UCL claim. Pursuant
to Sonner v. Premier Nutrition Corp., 971 F.3d 834 (9th Cir. 2020),
the Court lacked equitable jurisdiction over the plaintiffs' UCL
claim for restitution because they had an adequate remedy at law in
the form of money damages under the CLRA. And because the Ninth
Circuit stated in Guzman v. Polaris Indus. Inc., 49 F.4th 1308,
1314 (9th Cir. 2022), that dismissal under Sonner should be without
prejudice to the claims being brought in state court, the Court
dismissed the plaintiffs' UCL claim without leave to amend but
without prejudice to Plaintiffs bringing the claims in state
court.
In response to the Court's order, the Plaintiffs filed the instant
action in the Orange County Superior Court, seeking restitution and
injunctive relief under the UCL. The Defendants again removed the
case to the Court under CAFA. Shortly after removal, the Defendants
filed a motion to dismiss (which remains pending), and the
Plaintiffs filed the instant motion to remand.
The Plaintiffs move to remand the case based on (1) a lack of
subject matter jurisdiction and (2) the Court's prior dismissal of
their UCL claim for lack of equitable jurisdiction. They also seek
an award of attorneys' fees if the Court remands under Section
1447(c). The Defendants argue that there is no basis for remand
under Section 1447(c) and that the Court should not remand on
abstention grounds because doing so would create a massive judicial
exception to CAFA.
First, because there are at least 100 putative class members,
minimal diversity, and the amount in controversy exceeds five
million dollars, Judge Carney holds that the Court has subject
matter jurisdiction under CAFA.
Next, because the Court has subject matter jurisdiction, the only
basis for remand under Section 1447(c) would be a defect in
removal, and, as the Ninth Circuit has held, it is relatively clear
from context that 'defect' refers to a failure to comply with the
statutory requirements for removal provided in 28 U.S.C. Sections
1441-1453, citing Kamm v. ITEX Corp., 568 F.3d 752, 755 (9th Cir.
2009).
Judge Carney finds that the Defendants complied with the statutory
requirements of removal. Therefore, remand under Section 1447(c) is
inappropriate. But that does not mean the Court is without power to
remand the case. There are circumstances under which remand is
appropriate, despite the presence of subject matter jurisdiction
and lack of any removal defect.
Lastly, Judge Carney finds that the Defendants removed the
Complaint knowing full-well that the Court lacked jurisdiction to
adjudicate the claims that the Plaintiffs asserted. Far from
undermining the Congress' intent behind CAFA, this attempt to
circumvent state-court judicial powers and prevent the Plaintiffs'
UCL claim from ever being heard is a clear misuse of CAFA.
For the foregoing reasons, the Plaintiffs' motion to remand is
granted. Judge Carney remands the case to the Superior Court of the
State of California for the County of Orange.
A full-text copy of the Court's March 7, 2023 Order is available at
https://tinyurl.com/29rk54bc from Leagle.com.
WINSTAR SERVICE: Blanco et al. Seek Unpaid Minimum and OT Wages
---------------------------------------------------------------
Irving Blanco, Kevin Gregorio Martinez Garcia, and Yorkenit Jose
Hernandez Mujica, on behalf of themselves and others similarly
situated in the proposed FLSA Collective Action v. Winstar Service
Inc., Kingsland Food Processing Corp., Maxsun Corporation, Thomas
Lin, Johnny Song Lin, and Steven Lin, Case No. 1:23-cv-02028
(E.D.N.Y., March 16, 2023), seeks recovery for violations of Fair
Labor Standards Act and of Articles 6 and 19 of the New York State
Labor Law and their supporting New York State Department of Labor
regulations.
Mr. Blanco seeks injunctive and declaratory relief and to recover
unpaid minimum wages, overtime wages, liquidated and statutory
damages, pre- and post-judgment interest, and attorneys' fees and
costs pursuant to the FLSA, NYLL, and the NYLL's Wage Theft
Prevention Act. He also claims that the Defendants failed to
provide wage notice and violated the wage statement provisions of
the NYLL.
Winstar Service Inc. is a domestic corporation organized and
existing under the laws of the State of New York. Upon information
and belief, it maintains its principal place of business located at
57-11 49th Place, Maspeth, NY 11378, and an alternate address
located at 3500 S. Clinton Avenue, South Plainfield, NJ 07080.[BN]
The Plaintiffs are represented by:
Joshua Levin-Epstein, Esq.
Jason Mizrahi, Esq.
LEVIN-EPSTEIN & ASSOCIATES, P.C.
60 East 42nd Street, Suite 4700
New York, NY 10165
Telephone: (212) 792-0046
E-mail: Joshua@levinepstein.com
WORDEN CAPITAL: Fails to Pay Proper Overtime Wages, Connors Says
----------------------------------------------------------------
PHILIP CONNORS, individually and on behalf of others similarly
situated, Plaintiff v. JAMIE J. WORDEN, Defendant, Case No.
604362/2023 (N.Y. Sup., Nassau Cty., March 15, 2023) is an action
against the Defendant's failure to pay the Plaintiff and the class
overtime compensation for hours worked in excess of 40 hours per
week.
Plaintiff Connors was employed by the Defendant as financial
representative.
WORDEN CAPITAL MANAGEMENT LLC operates as a broker dealer. The
Company offers brokerage services, support structure, and other
financial services. [BN]
The Plaintiff is represented by:
Michael A. Tompkins, Esq.
Brett R. Cohen, Esq.
LEEDS BROWN LAW, P.C.
1 Old Country Road Suite 347
Carle Place, NY 11514
Telephone: (516) 873-9550
Email: mtompkins@leedsbrownlaw.com
bcohen@leedsbrownlaw.com
XCEL ENERGY: $12M Arandell & Williams Class Deal Wins Prelim. Nod
-----------------------------------------------------------------
In the cases, ARANDELL CORPORATION, et al., Plaintiffs v. XCEL
ENERGY INC., et al., Defendants. NEWPAGE WISCONSIN SYSTEM INC.,
Plaintiff v. CMS ENERGY RESOURCE MANAGEMENT COMPANY, et al.,
Defendants, Case Nos. 07-cv-076-jdp, 09-cv-240-jdp (W.D. Wis.),
Judge James D. Peterson of the U.S. District Court for the Western
District of Wisconsin grants the Plaintiffs' unopposed motion to
certify a class under Federal Rule of Civil Procedure 23 for the
purpose of settlement, preliminarily approve the settlement
agreement, appoint class representatives and class counsel, and
approve a class notice.
In these consolidated cases, certain commercial and industrial
consumers of natural gas in Wisconsin claim that defendants
conspired to increase natural gas prices between 2000 and 2002.
These cases were formerly centralized with several other actions in
the District of Nevada as part of a multi-district ligation (MDL).
After spending more than a decade in MDL, these cases were remanded
to the Court in 2019 for additional pre-trial decisions and trial.
On Oct. 21, 2022, the Plaintiffs in both of the Wisconsin cases
reached a settlement with Defendants The Williams Companies, Inc.,
Williams Merchant Services Company LLC (f/k/a Williams Merchant
Services Company, Inc.), and WPX Energy Marketing, LLC (f/k/a
Williams Power Company, Inc.).
Pending before the Court is the Plaintiffs' unopposed motion to
certify a class under Federal Rule of Civil Procedure 23 for the
purpose of settlement, preliminarily approve the settlement
agreement, appoint class representatives and class counsel, and
approve a class notice.
The Plaintiffs contend that the Williams Defendants participated in
an unlawful conspiracy to manipulate natural gas price indices in
violation of Wisconsin state antitrust laws. They have alleged that
the Defendants' price manipulation began around Jan. 1, 2000 and
continued in many respects until at least Oct. 31, 2002, resulting
in the class members paying excessive prices for natural gas.
The Plaintiffs assert that the manipulation was carried out through
agreements to falsely report prices to trade publications that
generated price indexes and conduct wash trades and churning
activities. They also allege that the manipulative conduct was
facilitated through oral communications, face-to-face meetings,
electronic communications, trading platforms, and other means.
The parties propose the following class definition for purposes of
settlement: All industrial and commercial purchasers of natural gas
for their own use or consumption during the period from Jan. 1,
2000 until Oct. 31, 2002, and which gas was used or consumed by
them in Wisconsin.
Judge Peterson states that although the parties have settled, the
Court must still certify that the proposed class satisfies the
three requirements for class certification under Rule 23: (1) the
class must be clearly defined with objective criteria; (2) the
class must satisfy the threshold requirements of numerosity,
commonality, typicality, and adequacy of representation under Rule
23(a); and (3) the class must meet the requirements of at least one
of the types of class actions listed in Rule 23(b).
First, Judge Peterson finds that the class definition is not vague,
based on subjective criteria, or defined in terms of success on the
merits. It identifies a particular group of companies (industrial
and commercial purchasers of natural gas with clearly defined
exclusions) harmed in a particular way (paid more for natural gas
than they would have absent the alleged conspiracy) during a
specific period in a particular area. So, the parties have
satisfied the first requirement for class certification.
Second, Judge Peterson holds that the class satisfies the Rule
23(a) requirements. He finds that (i) the United States Energy
Information Agency (EIA) reported thousands of commercial and
industrial purchasers of natural gas in Wisconsin between 2000 and
2002; (ii) the common question of whether the Williams Defendants
participated in a nationwide price manipulation conspiracy that
resulted in increased prices for natural gas across Wisconsin can
be answered by evidence that applies to all Plaintiffs; (iii) the
Plaintiffs suffered the same baseline harm that all members of the
proposed class suffered from the alleged price fixing, even if
class members purchased natural gas at different prices and in
different ways; and (iv) no apparent conflicts between the named
Plaintiffs' interests and those of the rest of the class.
For these reasons, Judge Peterson appoints Arandell Corp., Briggs &
Stratton Corp., Carthage College, Ladish Co., Inc. (n/k/a ATI
Ladish LLC), Merrick's, Inc., Verso Minnesota Wisconsin LLC (f/k/a
NewPage Wisconsin System Inc., n/k/a Billerud Wisconsin LLC), and
Sargento Foods, Inc., as the class representatives. He grants the
Plaintiffs' request that the law firms of Kohner Mann & Kailas,
S.C., Perkins Coie LLP, and Polsinelli PC be appointed the counsel
for the settlement class.
Lastly, Judge Peterson holds that the class satisfy all of the Rule
23(b) provisions. He finds that (i) the individual class members
also have an interest in efficiently resolving their claims, which
a class action and the proposed settlement provide; (ii) there is
no indication that any class members are pursuing other litigation
related to the claims at issue; (iii) consolidating the common
issues and resolving them in one case is efficient; and (iv) the
case presents no management difficulties because the parties have
settled. So, the predominance requirement is satisfied.
Superiority is also satisfied. As found in the previous three
settlements in these cases, individual litigation of each class
member's claims would be expensive and time-consuming, and the cost
of litigation would likely exceed any recovery. Resolving those
claims through a class action will save time and expense for both
the parties and the court.
The proposed class satisfies all of Rule 23's requirements, Judge
Peterson certifies the proposed class for settlement purposes.
Next, he must determine whether to preliminarily approve the
proposed settlement.
The settlement provides for a fund of $12 million from which
expenses, attorneys' fees, and service awards will be deducted.
Specifically, the Plaintiffs' counsel seeks to recover costs and
expenses they have incurred from Feb. 1, 2020 through Sept. 30,
2022, not to exceed $143,000. In addition, the Plaintiffs will seek
up to $100,000 in administration fees from the settlement fund for
AB Data, Ltd., which their counsel has selected to serve as the
claims administrator pending the court's approval. No more than
$50,000 in administrative fees will be incurred in the notice,
exclusion, and objection process before final approval.
The Plaintiffs' counsel will seek attorneys' fees not to exceed 35%
of the settlement fund that remains after costs and expenses
(approximately $4.1 million). The same 35% net fee recovery was
approved in six prior Wisconsin class settlements. Settlement class
counsel also may request a service award for each of the class
representatives in an amount that the court deems appropriate.
The remaining settlement fund will be allocated to class members
based on the volume of natural gas that each participating class
member purchased in proportion to the total purchased by all
participating class members. The resulting percentages will be
multiplied against the net settlement fund for the Wisconsin class
(total settlement minus all expenses, attorneys' fees, and service
awards) to determine each participating class members' payment.
Class members will receive a net distribution of almost $8
million.
Judge Peterson has reviewed the terms of the proposed settlement
and concludes that they are within the range of possible approval
under Rule 23(e)(2). So, he grants the motion for preliminary
approval of the settlement and appoints AB Data, Ltd. as the
settlement administrator.
Judge Peterson has also reviewed the proposed long and short form
notices and finds that they comply with the requirements of Rule
23. The notices plainly state the nature of the action, definition
of the class, issues, option for members to appear through an
attorney, option to be excluded from the class, and binding effect
of judgment on participating class members. He directs the
Plaintiffs to send notice to the class members.
The Court will hold a final fairness hearing via video conference
on June 29, 2023, at 1:00 p.m. The parties may have until April 7,
2023, to disseminate notice to the class, giving the class members
until June 5, 2023 to request exclusion from the settlement class
and until May 30, 2023, to object to the settlement and/or file a
notice of intention to appear at the fairness hearing.
The parties have until June 8, 2023, to file a motion for final
approval addressing the factors in Rule 23(e)(2) and until June 5,
2023 to provide one another with PDF copies of all objections
received. The Plaintiffs have until June 8, 2023, to file a motion
for attorney fees; defendants may have until June 15, 2023, to
respond.
The Plaintiffs have until June 13, 2023, to provide the Defendants
with the list of entities that timely requested exclusion from the
settlement class. The counsel for the parties may file and serve
written responses to any objection no later than five days before
the fairness hearing.
In accordance with the terms of the settlement agreement: (1) the
Williams Defendants will deliver into the escrow account the
initial installment of its payment towards the settlement fund
within fourteen 14 days of the entry of this order; and (2) a
maximum of $50,000 from this payment may be used to cover the costs
of distributing the class notices and administering the settlement
fund up to the date that the settlement agreement becomes final.
A full-text copy of the Court's March 7, 2023 Opinion & Order is
available at https://tinyurl.com/ycy8h7m6 from Leagle.com.
ZOLL MEDICAL: Fails to Secure Patients' Personal Info, Priddy Says
------------------------------------------------------------------
JOHN PRIDDY, on behalf of himself and all others similarly situated
v. ZOLL MEDICAL CORPORATION, Case No. 1:23-cv-10588 (D. Mass., Mar.
16, 2023) is a class action arising out of the recent targeted
cyberattack and data breach on ZOLL's network that resulted in
unauthorized access to Plaintiff and Class Members' sensitive
personal information.
The Defendant allegedly failed to provide timely and adequate
notice to the Plaintiff and other Class Members that their Private
Information had been subject to the unauthorized access of an
unknown third party, and identify precisely what specific type of
information was accessed.
On January 28, 2023, ZOLL experienced a cybersecurity incident on
its network. Through investigation, ZOLL detected unusual activity
on its internal network and detected that the Plaintiff's and Class
Members' Private Information was affected on February 2, 2023.
Information compromised in the Data Breach includes names, dates of
birth, addresses, Social Security Numbers, ("PII"), and may have
inferred that the Plaintiff and Class Members used or considered a
ZOLL product for use ("PHI"), the suit claims.
As a result of the Data Breach, the Plaintiff and approximately
1,004,443 Class Members suffered ascertainable losses in the form
of the loss of the benefit of their bargain, out-of-pocket
expenses, and the value of their time reasonably incurred to remedy
or mitigate the effects of the attack, the suit adds.
The Plaintiff and Class Members' identities are now at risk because
of Defendant's negligent conduct because the Private Information
that ZOLL collected and maintained is now in the hands of data
thieves.
Accordingly, the Plaintiff brings this action against the Defendant
seeking redress for its unlawful conduct, and asserting claims for:
(i) negligence, (ii) breach of implied contract; and (iii) unjust
enrichment. The Plaintiff provided his Private Information to ZOLL
roughly six years ago when he utilized ZOLL's LifeVest wearable
defibrillator.
ZOLL develops and markets medical devices and software solutions
that help advance emergency care and save lives, while increasing
clinical and operational efficiencies. It produces "products for
defibrillation and cardiac monitoring, circulation enhancement and
CPR feedback, supersaturated oxygen therapy, data management,
ventilation, therapeutic temperature management, and sleep apnea
diagnosis and treatment."[BN]
The Plaintiff is represented by:
Kurt J. Hagstrom, Esq.
HAGSTROM LAW GROUP
66 N. Second Street
New Bedford, MA 02740
Telephone: (508) 612-4677
Facsimile: (508) 207-9747
E-mail: kurt@hagstromlawgroup.com
- and -
Terence R. Coates, Esq.
Dylan J. Gould, Esq.
MARKOVITS, STOCK & DEMARCO, LLC
119 E Court Street, Suite 530
Cincinnati, OH 45202
Telephone: (513) 651-3700
Facsimile: (513) 665-0219
E-mail: tcoates@msdlegal.com
dgould@msdlegal.com
*********
S U B S C R I P T I O N I N F O R M A T I O N
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Toledo, Christopher G. Patalinghug, and Peter A. Chapman, Editors.
Copyright 2023. All rights reserved. ISSN 1525-2272.
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