/raid1/www/Hosts/bankrupt/CAR_Public/230403.mbx
C L A S S A C T I O N R E P O R T E R
Monday, April 3, 2023, Vol. 25, No. 67
Headlines
1ST FRANKLIN FINANCIAL: Allen Files Suit in N.D. Georgia
3B INTERNATIONAL: Martinez Files ADA Suit in E.D. New York
420 SCIENCE LLC: Miller Files ADA Suit in W.D. New York
433 GRAHAM AVENUE: Faces Rodriguez Wage-and-Hour Suit in E.D.N.Y.
ACCREDITED SURETY: Class Cert Sched Order Entered in Travelers
ACCUCOM CORP: Court Denies Bid to Compel Arbitration in Azuz Suit
AETNA LIFE: Loses Bid to Stay Class Certification in Wolff Suit
AGRESERVES INC: Rivera Labor Suit Removed to E.D. Cal.
ALLSTATE INSURANCE: Watkins Appeals Suit Dismissal to 5th Cir.
AMERICAN NATIONAL: Court Takes Class Cert Bid Under Submission
ANALOG DEVICES: Faces Shareholder Suit Over Merger Deal
ANCIENT BRANDS: Brain Boost's Label "Deceptive," Viera Suit Claims
ANDREW M. JORDAN: Brumble Labor Suit Removed to N.D. Cal.
APPLE INC: Kelly Suit Transferred to N.D. California
APPLE INC: W.D. New York Narrows Claims in McTyere Consumer Suit
ARMOUR RESIDENTIAL: Faces Shareholder Suits Over Merger Deal
ASPEN DENTAL: Filing for Class Certification Bid Due Jan. 22, 2024
AUDIBLE INC: Court OKs Temporarily Bid to Seal Documents
AVEO GROUP: Lawyer's Regret as $500M Class Action Settles for $11M
AVIVA CANADA: Motion to Quash COVID-19 Class Suit Denied
B&H FOTO & ELECTRONICS: Hwang Files ADA Suit in E.D. New York
BABYSUPERMARKET.COM: Lawal Files ADA Suit in S.D. New York
BACTOLAC PHARMACEUTICAL: Copley Class Settlement Gets Final Nod
BARCLAYS PLC: Settlement Reached in Antitrust Suits
BAYADA HOME: Partial Summary Judgment Order in Higgins Suit Upheld
BIOMARIN PHARMA: Pension Fund Appeals Suit Dismissal to 9th Cir.
BRIANNA PIZZA: Fails to Properly Pay Cashiers, Torrez Suit Says
BURGER KEEPER: Hwang Files ADA Suit in E.D. New York
BUTTERFLY NETWORK: Continues to Defend Exchange Act Class Suit
BZX DAO: Court Ruling Could Be Applied to Developers With Multisigs
CALIFORNIA: Brown Antitrust Suit Removed to C.D. Cal.
CALIFORNIA: D. B. Appeals Final Judgment in Suit v. CMS to 9th Cir.
CALPINE OPERATING: Herrera Labor Suit Removed to S.D. Cal.
CARNIVAL CORPORATION: Mikulsky Sues Over Unlawful Wiretapping
CDM FEDERAL: Hibben FLSA Suit Transferred to S.D. Tex.
CENTIMARK CORPORATION: Mutz Suit Removed to E.D. Pennsylvania
CENTRAL PUGET: Summary Judgment in Penner Suit Affirmed on Appeal
CEREBRAL INC: Awadallah Sues Over Disclosure of Patients' Info
CEREBRAL INC: Gould Files Suit in C.D. California
CHURCHOME: Faces Class Action Suit Over Tithing Policy
CHUY'S OPCO: Sharp Sues Over Restaurant Staff's Unpaid Wages
COCA-COLA COMPANY: Hiedger Consumer Suit Removed to E.D. Mo.
CONSTRUCTION PARTNERS: Assad Seeks to Void Certificate of Inc.
CONTEMPORARY SERVICES: Fails to Pay Proper Wages, Williamson Says
COOKIES KIDS.COM: Black Files ADA Suit in E.D. New York
CORRECTIONS SPECIAL: Federal Judge Upheld Denial of Inmates' Suit
COTY DTC HOLDINGS: Read FTSA Suit Removed to M.D. Fla.
COVANTA HOLDING: Brashevitzky Files Suit in S.D. Florida
CREW KNITWEAR: Bunting Files ADA Suit in E.D. New York
DILIGENT CORP: Fails to Protect Patients' Info, Petillo Alleges
DISCOVER FINANCIAL: TCPA Class Suit Settlement Heard on July 25
DISH NETWORK: Faces Class Action Suit Over Ransomware Attack
DOCTOR'S BEST: Martin Suit Removed to C.D. California
DONOTPAY INC: Faridian Sues Over Unauthorized Practice of Law
DS NATURALS: Court Grants in Part Bid to Dismiss Lesh Class Suit
DULLES DRYWALL: Ramos Suit Seeks Construction Workers' Unpaid Wages
DUNKIN' DONUTS: App Overcharges Customers, Kelledy Class Suit Says
DUNKIN: Faces Kelledy Suit Over Deceptive Pricing on Mobile App
EARGO INC: Continues to Defend Consolidated Securities Class Suits
EARGO INC: Wolfe Suit Parties Paid Plaintiff's Counsel $249,500
ENTRUST SOLUTIONS: Fails to Pay Overtime Wages, Lumpkins Alleges
EXPERIAN INFORMATION: Can Compel Arbitration in Alvarez FCRA Suit
F.J. DESIGNS INC: Lawal Files ADA Suit in S.D. New York
FITLIFE BRANDS: Discloses Web Users' Personal Info, Licea Alleges
FLORIDA HEALTH: Suit Removed to M.D. Florida
FLOWERS FOODS: Loses Bid to Decertify FLSA Class in Ludlow Suit
GC BROTHERS: Fails to Pay Proper Wages, Kepler Suit Alleges
GEICO GENERAL: Lanzillotta Breach Suit Certified as Class Action
GEICO GENERAL: Ventrice-Pearson's Class Settlement Wins Final Nod
GENERAL MOTORS: Court Certifies Chevy Shake Suit as Class Action
GETAROUND INC: Kline Telemarketing Suit Removed to N.D. Fla.
GIBRALTAR HOSPITALITY: Vasquez FLSA Suit Removed to D. Nev.
GOHEALTH INC: No Trial Date Set for Securities Class Suit
GOODWILL INDUSTRIES: Ishoufar Files Suit in Cal. Super. Ct.
GRAVITRON LLC: Miller Files ADA Suit in W.D. New York
GROWCO INC: Class Settlement in Paulson Suit Wins Final Approval
HALEAKALA RANCH: Affirmance of Final Judgment in PATH Suit Vacated
HANDS OF TIBET: Rhone Files ADA Suit in S.D. New York
HERSHEY COMPANY: Powell Mislabeling Suit Removed to E.D. Mo.
HSBC BANK: Final OK of $5.6B Class Settlement in Fikes Suit Upheld
INDEPENDENT LIVING: Cliver Files Suit in S.D. Florida
INDEPENDENT LIVING: Discloses Patients' Personal Info, Perez Says
INVIVYD INC: Continues to Defend Brill Securities Class Suit
JOHNSON & JOHNSON: $25MM Class Deal in Remicade Suit Has Final OK
JPAY LLC: Appeals Arbitration Bid Denial in Cain Suit to 9th Cir.
JUMPSTART GAMES: Keiter Files Suit in C.D. California
KONING & ASSOCIATES: Bid to Certify Class in Willis Suit Denied
KRATOCHVIL LAW: Faces Smith-Chester Suit Over Fraudulent Judgment
KTRE1 LLC: Faces Dominguez Wage-and-Hour Lawsuit in California
KUSHNER COS: Fabo Wins in Part Bid to Dismiss Affirmative Defenses
LABORATORY CORP: Espitia FCRA Suit Removed to C.D. Cal.
LASALLE CORRECTIONS: Underpays Nurse Practitioners, Powell Claims
LATITUDE FINANCES: Sued Over Data Breach Affecting 14-M Customers
LAWLESS BEAUTY: Slade Files ADA Suit in S.D. New York
LEO CHULIYA: Wang Sues Over Fraudulent IRS Filing of Wage Payment
LINCARE INC: Wins Bid to Compel Arbitration in Prostek Suit
LUMEN TECHNOLOGIES: Tertanni Sues Over Deceptive Fees
MATCHBOX BROS: Miller Files ADA Suit in W.D. New York
MEDIBANK PRIVATE: Faces Second Class Suit Over Data Breach
META MATERIALS: Seeks Dismissal of Maltagliati Class Suit
META PLATFORMS: $725M Deal in Data Privacy Suit Granted Prelim. OK
MICHAEL HARRISON: Brach Files FDCPA Suit in S.D. New York
MIDDLESEX WATER: Vera Suit Remanded to New Jersey Superior Court
MILEA TRUCK: Santos Sues Over Auto Shop Workers' Unpaid Wages
MINDBODY INC: Judgment Entered on Breach Claims in Stockholder Suit
MOMS MILK BOUTIQUE: Rhone Files ADA Suit in S.D. New York
MONDELEZ GLOBAL: Gum's Mint Label "Deceptive," Reynolds Suit Says
MOSQUITO SQUAD: Court Approves Lenorowitz Class Notice Plan
MSCRIPTS LLC: Robbins Sues Over Exposure of Private Health Data
MYVAPORSTORE LLC: Vachnine Files ADA Suit in S.D. New York
NAT'L ASSOC. OF REALTORS: Moehrl Conspiracy Suit Certified by Court
NATIONAL HEALTHCARE: Denial of Judgment Bid in Gibson Suit Upheld
NCINO INC: Continues to Defend Live Oak Class Suit in E.D.N.C.
NETWORK RECOVERY: Starky FDCPA Suit Removed to S.D. New York
NISSAN NORTH: Stanley Sues Over Nissan Titan XD Trucks' Pump Defect
NORFOLK SOUTHERN: Loyd Sues Over Train Derailment, Chemical Spill
NORFOLK SOUTHERN: Mozuch Files Suit in N.D. Ohio
NORFOLK SOUTHERN: Smith Files Suit in N.D. Ohio
NRA GROUP LLC: Ford Files FDCPA Suit in M.D. Pennsylvania
OHIO: Court Narrows Civil Rights Claims in Leach v. Gov. DeWine
OMEGA HEALTHCARE: Canter, Basilio Seek to Recover Unpaid OT Wages
ON MY OWN: Delgado Files Suit in Cal. Super. Ct.
ONPOINT TESTING INC: Matney Files Suit in Cal. Super. Ct.
ORLEANS PARISH: Exception of Prescription Denial in Johnson Upheld
OZI 4 DELIVERY: Fails to Pay Proper Wages, Merritt et al. Allege
PORTFOLIO RECOVERY: Grier Sues Over FDCPA Violation
PROGRESSIVE DIRECT: Court Narrows Insurance Claims in Curran Suit
PROHEALTH CARE: Class Certification Order in Fotusky Suit Reversed
PULSE COMMERCIALS: O'Cain Wage-and-Hour Suit Removed to C.D. Cal.
PUNJAB, INDIA: Sikhs for Justice Sues Over Crimes Against Humanity
QHCCS LLC: Smith Suit Seeks Unpaid Overtime for Registered Nurses
QIHOO 360 TECHNOLOGY: S.D.N.Y. Narrows Claims in Altimeo Suit
RADNET INC: Walker Files Suit in E.D. California
REGENTS OF THE UNIVERSITY: Maxwell Files Suit in Cal. Super. Ct.
ROCKET MORTGAGE: Bid to Compel Arbitration or Dismiss Case Denied
ROGER WILLIAMS: Smith Appeals Suit Dismissal Ruling to 1st Cir.
RYDER SYSTEM INC: Securities Suits Ongoing in FL, AK Courts
SAFECO INSURANCE: Dickson Files Suit in N.D. Oklahoma
SAINT-GOBAIN PERFORMANCE: Medical Monitoring in PFOA Suit Discussed
SAPUTO DAIRY: Romero Wage-and-Hour Suit Removed to E.D. Cal.
SAVE MART SUPERMARKETS: Goodwin Files Suit in Cal. Super. Ct.
SCRIPPS HEALTH: Gorey Suit Removed to S.D. California
SELECTBLINDS LLC: Stipulated Protective Order Entered in Barr Suit
SEQUOIA CAPITAL: Girshovich Sues Over Unfair Competition
SHAMROCK FOODS: Appeals Arbitration Bid Denial in Valdez to 9th Cir
SILLY FARM SUPPLIES: Hernandez Files ADA Suit in S.D. New York
SOUTHGATE REIKI: Faces DeAnda Suit Over Unpaid Minimum Wages
SOUTHWEST LOUISIANA HOSPITAL: Suit Removed to W.D. Louisiana
SPEEDWAY LLC: Petroski Sues Over Unlawful Labor Practices
SSP AMERICA INC: Adams Files Suit in Cal. Super. Ct.
STAR FINANCIAL: Dismissal of Decker Suit Reversed on Appeal
STATE FARM: Sewickley Appeals Insurance Suit Dismissal to 3rd Cir.
SUMMIT UTILITIES: Class Suit Moves to AR Public Service Commission
SWEET PIZZA: Peery Seeks Unreimbursed Expenses for Delivery Drivers
T. ROWE PRICE: Faces Invasion of Privacy Suit in CA Court
TAL EDUCATION: Bids for Lead Plaintiff Appointment Due May 30
TAURUS INT'L: Harman Suit Over Faulty Pistol Tossed With Prejudice
TENNESSEE-AMERICAN WATER: Bruce Water Shortage Suit Ongoing
TERRAN ORBITAL: Continues to Defend Mullen Class Suit in S.D.N.Y.
TEXAS SWD COMPANY: Hickman Sues Over Failure to Pay Overtime Wages
TIKTOK INC: Faces Class Suit Over Tracking & Selling User Data
TK&K SERVICES: Palma Wage-and-Hour Suit Removed to E.D. Cal.
TOYOTA AUSTRALIA: Primary Court Ruling Over Defective DPF Upheld
TOYOTA MOTOR: Faces Class Suit Over RAV4 Roof Leaks
TRADER JOE'S: Ish-Hurwitz Suit Transferred to S.D. California
TRUCONNECT COMMUNICATIONS: Kimberling Files Suit in S.D. California
UNEMPLOYED PHILOSOPHERS: Rhone Files ADA Suit in S.D. New York
UNEMPLOYMENT INSURANCE: Registration in Class Suit Due April 5
UNION PACIFIC: Dixon Labor Suit Removed to C.D. Cal.
UNITED STATES: Faces Class Suit Over Free Speech Suppression
URTHBOX INC: Hinton Files Suit in Cal. Super. Ct.
US PREMIUM BEEF: Faces Brown Antitrust Suit Over Wage Fixing
US XPRESS: Reaches $13 Million Securities Class Action Settlement
VIBE BY CALIFORNIA: Escudero Files Suit in Cal. Super. Ct.
W.W. GRAINGER: Rodriguez Labor Suit Removed to E.D. Cal.
WELLS FARGO: Echard Suit Stayed Pending Ruling in Forbearance Suit
WESTLAKE ROYAL: Court Narrows Claims in Amended Meraz-Valencia Suit
WHELAN SECURITY: Faces Teems Wage-and-Hour Suit in California
WORKING BETTER: Underpays Delivery Drivers, Tafoya Suit Alleges
YUMIKO USA LLC: Hwang Files ADA Suit in E.D. New York
ZILLOW GROUP: Faces Shareholder Suits Over SEC Filings
[^] 2023 Class Action Money & Ethics Conference - Speakers Named
*********
1ST FRANKLIN FINANCIAL: Allen Files Suit in N.D. Georgia
--------------------------------------------------------
A class action lawsuit has been filed against 1st Franklin
Financial Corporation. The case is styled as Joshua Allen,
individually and on behalf of all others similarly situated v. 1st
Franklin Financial Corporation, Case No. 2:23-cv-00049-RWS (N.D.
Ga., March 22, 2023).
The nature of suit is stated as Other Contract for Breach of
Fiduciary Duty.
1st Franklin Financial Corporation -- https://www.1ffc.com/ --
operates as financial company. The Company offers residential
mortgage loans and home loan solutions.[BN]
The Plaintiff is represented by:
MaryBeth Vassil Gibson, Esq.
N. Nickolas Jackson, Esq.
THE FINLEY FIRM, P.C.
Building 14, Suite 230
3535 Piedmont Road
Atlanta, GA 30305
Phone: (404) 320-9979 ext 202
Fax: (404) 320-9978
Email: mgibson@thefinleyfirm.com
njackson@thefinleyfirm.com
3B INTERNATIONAL: Martinez Files ADA Suit in E.D. New York
----------------------------------------------------------
A class action lawsuit has been filed against 3B International
Limited Liability Company. The case is styled as Pedro Martinez,
individually and as the representative of a class of similarly
situated persons v. 3B International Limited Liability Company
doing business as: English Laundry Fragrance, Case No.
1:23-cv-02206 (E.D.N.Y., March 22, 2023).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
3B International LLC doing business as English Laundry Fragrance --
https://www.englishlaundryfragrance.com/ -- is a worldwide marketer
and manufacturer of prestige and mass fragrance brands.[BN]
The Plaintiff is represented by:
Dan Shaked, Esq.
SHAKED LAW GROUP, P.C.
14 Harwood Court, Suite 415
Scarsdale, NY 10583
Phone: (917) 373-9128
Email: shakedlawgroup@gmail.com
420 SCIENCE LLC: Miller Files ADA Suit in W.D. New York
-------------------------------------------------------
A class action lawsuit has been filed against 420 Science, LLC. The
case is styled as Kimberly Miller, on behalf of herself and all
other persons similarly situated v. 420 Science, LLC, Case No.
1:23-cv-00263 (W.D.N.Y., March 23, 2023).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
420 Science -- https://www.420science.com/ -- is the most trusted
online headshop specializing in glass storage jars, optics, glass
cleaners and many other unique products.[BN]
The Plaintiff is represented by:
Jeffrey M. Gottlieb, Esq.
GOTTLIEB & ASSOCIATES
150 E. 18th Street, Suite PHR
New York, NY 10003
Phone: (212) 228-9795
Fax: (212) 982-6284
Email: jeffrey@gottlieb.legal
- and -
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
433 GRAHAM AVENUE: Faces Rodriguez Wage-and-Hour Suit in E.D.N.Y.
-----------------------------------------------------------------
CLEMENTE RODRIGUEZ, ALEX ROJAS, and FREDDY ROJAS, individually and
on behalf of all others similarly situated, Plaintiffs v. 433
GRAHAM AVENUE DELI CORP. d/b/a ANTHONY AND SON PANINI SHOPPE,
ANTONIO CURCIO, SABINO CURCIO, MIGUELA CURCIO, and TERESA CURCIO,
Defendants, Case No. 1:23-cv-02324 (E.D.N.Y., March 27, 2023) is a
class action against the Defendants for violations of the Fair
Labor Standards Act and the New York Labor Law including failure to
pay minimum wages, failure to pay overtime wages, unlawful wage
deductions, failure to provide wage notice, and failure to furnish
accurate wage statements.
Plaintiffs Clemente Rodriguez, Alex Rojas, and Freddy Rojas worked
for the Defendants as non-exempt food delivery persons and porters
at Anthony & Son Panini Shoppe restaurant on or about February 8,
2020, in or about June 2020, and in or about August 2021,
respectively.
433 Graham Avenue Deli Corp., is an owner and operator of a
restaurant under the name Anthony & Son Panini Shoppe, located at
433 Graham Avenue, Brooklyn, New York. [BN]
The Plaintiffs are represented by:
Justin Cilenti, Esq.
Peter H. Cooper, Esq.
CILENTI & COOPER, PLLC
60 East 42nd Street - 40th Floor
New York, NY 10165
Telephone: (212) 209-3933
Facsimile: (212) 209-7102
E-mail: info@jcpclaw.com
ACCREDITED SURETY: Class Cert Sched Order Entered in Travelers
--------------------------------------------------------------
In the class action lawsuit captioned as THE TRAVELERS INDEMNITY
COMPANY OF CONNECTICUT, v. ACCREDITED SURETY AND CASUALTY COMPANY,
INC., Case No. 1:22-cv-10666-JPC-BCM (S.D.N.Y.), the Hon. Judge
Barbara Moses entered an order scheduling initial case management
conference”
-- All pretrial motions and applications, including those
related to scheduling and discovery (but excluding motions
to dismiss or for judgment on the pleadings, for injunctive
relief, for summary judgment, or for class certification
under Fed. R. Civ. P. 23) must be made to Judge Moses and
in compliance with this Court's Individual Practices in
Civil Cases, available on the Court's website at
https://nysd.uscourts.gov/hon-barbara-moses.
-- The counsel shall meet and confer in accordance with Fed.
R. Civ. P. 26(f) no later than 21 days prior to the initial
case management conference. No later than one week prior to
the conference, the parties shall file a Pre-Conference
Statement, via ECF, signed by counsel for all parties.
-- A proposed discovery schedule including:
a. A date for exchanging the automatic disclosures required
by Fed. R. Civ. P. 26(a)(1)(A), or the date on which
such disclosures were accomplished;
b. Dates for the service of initial document production
requests and interrogatories (limited in accordance with
Local Civil Rule 33.3);
c. A date by which all fact depositions will be completed,
including the names (if known) or descriptions of
persons expected to be deposed; and
d. A date for the close of all fact discovery.
-- Any anticipated discovery issues that may warrant early
attention from the Court (including ESI protocols,
litigation holds, and other issues relating to the
preservation, retrieval and/or production of electronically
stored information).
-- A date, approximately 30 days prior to the close of fact
discovery, for a status conference with the Court.
Accredited Surety operates as an insurance company. The Company
offers financial responsibility insurance, bail bonds, child
custody bonds, notary bonds, commercial surety bonds, surety
claims, and veterans programs.
A copy of the Court's order dated March 14, 2023 is available from
PacerMonitor.com at https://bit.ly/3nhMRGL at no extra charge.[CC]
ACCUCOM CORP: Court Denies Bid to Compel Arbitration in Azuz Suit
-----------------------------------------------------------------
In the case, MARILYN AZUZ, individually and on behalf of all others
similarly situated, Plaintiff v. ACCUCOM CORPORATION, d/b/a
INFOTRACER, Defendant, Case No. 21-cv-1182 (N.D. Ill.), Judge
Steven C. Seeger of the U.S. District Court for the Northern
District of Illinois, Eastern Division, denies Accucom's motion to
compel arbitration.
Accucom runs a website where people can search public records for a
fee. The website, InfoTracer, allows visitors to get a sneak peek
of the available information before they sign up and pay for a
subscription. It offers a bit of a teaser, letting visitors see the
type of personal information that the website could provide about a
particular person.
That sneak peek is the core of the case. Azuz filed suit against
Accucom, accusing the company of using her personal information to
advertise and promote its products without her permission. The
theory is that the sneak peek is an advertisement or promotion of
the product (meaning the full database), designed to encourage
visitors to sign up. In her view, teasing visitors with tidbits of
personal information about a specific person violates the Illinois
Right of Publicity Act.
Azuz ultimately filed a one-count complaint. She alleges that
Accucom violated the Illinois Right of Publicity Act, 765 ILCS
1075/1, by using her personal information for the purpose of
advertising or promoting its products without written consent. She
seeks compensatory, statutory, and punitive damages on behalf of
herself and a putative class.
Before filing suit, Azuz's counsel investigated and visited
Accucom's website. The attorney wanted to confirm that Azuz's
information was, in fact, on the website. So, the counsel searched
the website for information about Azuz, and sure enough, the
website offered information about her.
As the company sees it, that search about a potential lawsuit means
that Azuz cannot bring a lawsuit at all. The company points out
that the website includes terms and conditions, and a visitor
agrees to those terms and conditions by using the website. One of
those terms and conditions is an arbitration provision.
Accucom now seeks to compel arbitration, based on the use of the
website by the Plaintiff's counsel. It argues that counsel acted as
Azuz's agent when it used the InfoTracer site and performed a
search, and thus bound her to the arbitration provision.
Alternatively, Accucom contends that Azuz ratified the attorney's
action because the complaint includes information from the
attorney's visit to the website.
As a preliminary matter, Accucom argues that an arbitrator, not
this Court, must decide whether the parties agreed to arbitration.
Judge Seeger opines that the existence of an agreement to arbitrate
must come first. It is an antecedent question. And the answer to
that antecedent question must come from a court. Arbitrators can't
decide anything without an agreement to arbitrate, so courts must
decide whether the parties agreed to arbitration. The arbitration
is the cart, and the agreement to arbitrate is the horse.
Next, the Court, not an arbitrator, must decide whether there is an
enforceable agreement to arbitrate. As the party seeking to enforce
the alleged arbitration agreement, Accucom has the burden of
establishing that an agreement exists. Accucom seeks to compel
arbitration on two grounds. First, it argues that the lawyer had
actual or apparent authority to agree to the arbitration provision
on Azuz's behalf. Second, it argues that Azuz ratified her
attorney's agreement by using the information in the complaint. In
sum, the first issue involves agency, and the second issue involves
ratification.
Judge Seeger finds that Azuz is not bound by the arbitration
provision unless she agreed to it. Azuz (the principal) could agree
to the arbitration provision through her agent (Diamond, the
attorney). But the attorney could accept the arbitration agreement
on her behalf only if the attorney had actual or apparent authority
to do so.
The next question is whether the attorney had apparent authority to
accept the arbitration agreement on Azuz's behalf. Once again,
Judge Seeger concludes that the attorney did not have actual or
apparent authority to act on behalf of Azuz when the attorney used
the website and agreed to the arbitration provision. Azuz herself
did not do anything to create the impression that the lawyer had
authority to act on her behalf. The lack of communications between
Azuz and Accucom dooms any argument about apparent authority. The
simple reality is that nothing was apparent to Accucom because Azuz
never said or did anything.
Accucom then argues that Azuz is bound by the arbitration agreement
under the doctrine of ratification.
Once again, Judge Seeger disagrees. He fails to see any meaningful
benefit Azuz received from Diamond's use of InfoTracer. And if
there is no benefit, ratification will not be implied. Accucom
thinks that Azuz received a benefit by citing the screenshots in
the complaint. That's not much of a benefit because those
screenshots were not essential to the claim.
Accucom dislikes the fact that the screenshots appear in the
complaint. If that's a problem, there is an easy solution.
Theoretically speaking, Azuz could file an amended complaint and
take them out. And then, things could get rolling in federal court.
If that step seems unnecessary and insubstantial, that reaction
says a lot about whether Azuz received a benefit. Truth be told,
there's not much there.
For these reasons, the motion to compel arbitration is denied.
A full-text copy of the Court's March 15, 2023 Memorandum Opinion &
Order is available at https://tinyurl.com/tbp6rdz8 from
Leagle.com.
AETNA LIFE: Loses Bid to Stay Class Certification in Wolff Suit
---------------------------------------------------------------
In the case captioned as JOANNE WOLFF, individually and on behalf
of a Class of Similarly Situated Individuals, Plaintiff v. AETNA
LIFE INSURANCE COMPANY, Defendant, Case No. 4:19-CV-01596 (M.D.
Pa.), Chief District Judge Matthew W. Brann for the Middle District
of Pennsylvania denies Aetna's motion to stay the Court's order
granting class certification.
Joanne Wolff was previously insured for long-term disability
benefits under the terms of a group insurance plan issued by Aetna
through Bank of America Corporation -- Wolff's employer. In
September 2015, Wolff was temporarily disabled as a result of a
motor vehicle accident that caused Wolff injuries. Wolff submitted
a claim to Aetna under the Plan and received long-term disability
benefits exceeding $50,000.
In 2020, Joanne Wolff, on behalf of herself on all similarly
situated individuals, filed a second amended complaint against
Aetna Life Insurance Company raising claims for: a violation of the
Employee Retirement Income Security Act of 1974, breaches of
fiduciary duties, conversion, money had and received, intentional
misrepresentation, negligent misrepresentation, unjust enrichment,
theft by deception, attempted theft, a violation of Pennsylvania's
Unfair Trade Practices and Consumer Protection Law, and a violation
of the Pennsylvania Fair Credit Extension Uniformity Act.
Wolff later filed a motion to certify a class pursuant to Federal
Rule of Civil Procedure 23, which the Court granted after finding
that the Rule 23 requirements were met. The Court determined that
Wolff had satisfied numerosity, commonality, typicality, and
adequacy of representation.
On Aug. 17, 2022, Aetna filed a motion for reconsideration. The
Court granted in part the motion for reconsideration because Wolff
agreed to slightly modify the class definition to eliminate any
concerns with a potential failsafe class. But the Court clarified
that all of the plans submitted by the parties contained
substantially similar language, and any minor differences in plan
language did not defeat commonality.
On Dec. 6, 2022, Aetna filed with the Third Circuit a Federal Rule
of Civil Procedure 23(f) petition for permission to appeal the
Court's decision. On the same day, Aetna filed a motion to stay the
Court's Order granting class certification pending the Third
Circuit's ruling on the Rule 23(f) petition.
Aetna argues that, in the Reconsideration Order, "the Court
materially altered its class certification analysis, changed the
composition of the class, and increased the size and scope of the
class."
The Court maintains that: "In the Certification Order, the Court
refused to strike any potential class members based on differences
in plan language, and in the Reconsideration Order the Court again
refused to strike any potential class members on that basis. In
short, the Reconsideration Order maintained the status quo. . .
Even if the Reconsideration Order altered the status quo, Aetna
runs into an additional hurdle to its appeal: it does not appear
that Aetna actually challenges the Reconsideration Order, despite
its occasional pro forma mention of the Reconsideration Order and
its conclusions. Rather, Aetna contests that the class should have
been certified at all -- meaning that the true aim of its appeal is
the Certification Order, not the Reconsideration Order."
The Court further maintains that "it appears likely that the Third
Circuit will refuse to endorse Aetna's attempted runaround of Rule
23(f)'s limitations period. . . Even if Aetna had made some showing
of a likelihood of success, this Court cannot conclude that Aetna
has made a strong showing of a likelihood of success. . . given
that those merits are unlikely to even be placed before the Third
Circuit, the Court cannot determine that a stay is warranted based
on any likelihood of success."
Moreover, the Court determines that "Aetna has failed to
demonstrate that it would be irreparably harmed absent a stay." The
Court also determines that "a stay is not likely to substantially
injure other interested parties. . . there may be some prejudice
and financial injury to potential class members should a stay be
imposed, but there is no evidence that any such injury would be
'substantial.'"
Aetna has also failed to demonstrate that any public interest would
be served by a stay of these proceedings. To the contrary, it is
well understood that the public has a strong "interest in speedy
resolution of legal disputes." The Court, therefore, concludes that
the public interest lies in favor of a quick resolution of this
matter, which weighs against granting Aetna's motion to stay.
A full-text copy of the Memorandum Opinion dated March 21, 2023, is
available https://tinyurl.com/4ry32cv6 from Leagle.com.
AGRESERVES INC: Rivera Labor Suit Removed to E.D. Cal.
------------------------------------------------------
The case styled CARLOS MARIN RIVERA, individually, and on behalf of
other members of the general public similarly situated, Plaintiff
v. AGRESERVES, INC., a Utah corporation; and DOES 1 through 100,
inclusive, Defendants, Case No. BCV-23-100439, was removed from the
Superior Court of the State of California, in and for the County of
Kern, to the United States District Court for the Eastern District
of California on March 16, 2023.
The Clerk of Court for the Eastern District of California assigned
Case No. 1:23-cv-00393-CDB to the proceeding.
The Plaintiff seeks on behalf of himself and the Proposed Class,
damages and/or penalties for the following: (1) failure to pay
minimum and overtime wages; (2) failure to provide meal periods;
(3) failure to provide rest periods; (4) waiting time penalties;
(5) wage statement violations; and (6) unfair competition.
AgReserves, Inc. is a diversified, multinational agriculture
for-profit and private company.[BN]
The Defendant is represented by:
Richard D. Marca, Esq.
Christopher S. Milligan, Esq.
Alisha L. Maline,Esq.
VARNER & BRANDT LLP
3750 University Ave., Ste. 610
Riverside, CA 92501
Telephone: (951) 274-7777
Facsimile: (951) 274-7770
ALLSTATE INSURANCE: Watkins Appeals Suit Dismissal to 5th Cir.
--------------------------------------------------------------
KENAN WATKINS is taking an appeal from a court order dismissing his
lawsuit entitled Kenan Watkins, individually and on behalf of all
others similarly situated, Plaintiff, v. Allstate Insurance
Company, Defendant, Case No. 3:22-cv-487, in the U.S. District
Court for the Southern District of Mississippi.
The Plaintiff filed this class action suit against the Defendant
for its failure to provide uninsured/underinsured motorist property
damage coverage to the full extent required by Mississippi statute.
The Plaintiff brought claims for breach of contract, tortious
breach of contract, violation of the covenant of good faith and
fair dealing/bad faith, negligence, negligence per se, gross
negligence, and injunctive and declaratory relief.
On Sept. 13, 2022, the Plaintiff filed an amended complaint, which
the Defendant moved to dismiss on Oct. 28, 2022.
On Mar. 6, 2023, the Court granted the Defendant's motion to
dismiss the Plaintiff's amended complaint through an Order entered
by Judge Kristi H. Johnson. Watkins's claims were dismissed with
prejudice.
The appellate case is captioned Watkins v. Allstate Insurance
Company, Case No. 23-60141, in the United States Court of Appeals
for the Fifth Circuit, filed on March 23, 2023. [BN]
Plaintiff-Appellant KENAN WATKINS, individually and on behalf of
all others similarly situated, is represented by:
Ronald Earl Stutzman, Jr., Esq.
STUTZMAN LAW FIRM, P.L.LC.
106 Luckney Station Road
Flowood, MS 39232
Telephone: (769) 208-5683
Defendant-Appellee ALLSTATE INSURANCE COMPANY is represented by:
George Clanton Gunn, IV, Esq.
BAKER, DONELSON, BEARMAN, CALDWELL & BERKOWITZ, P.C.
100 Vision Drive
Jackson, MS 39211
Telephone: (601) 351-2400
AMERICAN NATIONAL: Court Takes Class Cert Bid Under Submission
--------------------------------------------------------------
In the class action lawsuit captioned as Myra Steen et al v.
American National Insurance Company, Case No. 2:20-cv-11226-ODW-SK
(C.D. Cal.), the Hon. Judge Otis D. Wright, II entered an order:
-- denying as moot application to seal;
-- to file complete set of amended reply materials; and
-- taking class certification motion under submission
The Court granted the parties' Stipulated Protective Order in this
matter on July 1, 2022. Some time later, on March 6, 2023, the
Plaintiffs filed a Reply in support of their Motion to Certify
Class, which Reply cited to several Exhibits that Defendants had
designated as confidential, along with a corresponding Application
to Seal.
The Application indicates that it was brought pursuant to Local
Rule 79-5 and the Stipulated Protective Order in this case. On
March 10, 2023, Defendant filed a Declaration indicating that
Defendant does not oppose the public filing of the subject
Exhibits.
American National is an American insurance corporation based in
Galveston, Texas.
A copy of the Court's order dated March 13, 2023 is available from
PacerMonitor.com at https://bit.ly/42HlYwq at no extra charge.[CC]
ANALOG DEVICES: Faces Shareholder Suit Over Merger Deal
-------------------------------------------------------
Analog Devices, Inc. disclosed in its Form 10-Q report for the
quarterly period ended January 28, 2023, filed with the Securities
and Exchange Commission on February 15, 2023, that on March 17,
2022, Walter E. Ryan and Ryan Asset Management, LLC, purported
stockholders of Maxim Integrated Products, Inc., filed a putative
class action in the court of Chancery of the State of Delaware
(C.A. No. 2022—0255) against the company and the former directors
of Maxim.
The complaint alleges a breach of fiduciary duties by the
individual defendants in connection with Maxim's agreement, as part
of the merger negotiations with the company, to suspend Maxim's
dividends for up to four quarters prior to the closing of the
company's acquisition of Maxim.
The complaint further alleges that the company aided and abetted
that alleged breach of fiduciary duties. The plaintiffs seek
damages in an amount to be determined at trial, plaintiffs' costs,
and disbursements, including reasonable attorneys' and experts'
fees, costs, and other expenses.
Analog Devices, Inc. is into semiconductors and other related
devices based in Massachusetts.
ANCIENT BRANDS: Brain Boost's Label "Deceptive," Viera Suit Claims
------------------------------------------------------------------
MARIETTA VIERA, individually and on behalf of all others similarly
situated, Plaintiff v. ANCIENT BRANDS, LLC, d/b/a ANCIENT
NUTRITION, Defendant, Case No. 1:23-cv-02242 (E.D.N.Y., March 23,
2023) is a class action against the Defendant for violations of New
York General Business Law.
According to the complaint, the Defendant is engaged in false,
deceptive, and misleading advertising, labeling, and marketing of
its collagen protein powder sold under the brand name
"Multi-Collagen Protein, Brain Boost." The protein powder is sold
in a cylindrical container, common to many other protein powders on
the market, with the term Brain Boost prominently emblazoned in the
center, with the words "clinically studied ingredients" appearing
in the upper left hand corner in caps. Despite claiming that their
otherwise unremarkable, vanilla flavored protein powder is made
from "clinically studied" or "clinically proven" ingredients that
promise increased "mental clarity and concentration," a "positive
mindset," and "alleviate the effects of stress and tension," the
claims are decidedly false, misleading, and amply contradicted by
prior studies and research. By deceptively misrepresenting the
efficacy of Brain Boost, the Defendant has defrauded consumers into
purchasing the supplement and has commanded and continues to
command a price premium for each container sold, says the suit.
Ancient Brands, LLC, d/b/a Ancient Nutrition, is a manufacturer of
dietary supplements, with its principal address at 405 Duke Dr.,
Suite 260, Franklin, Tennessee. [BN]
The Plaintiff is represented by:
James R. Denlea, Esq.
Jeffrey I. Carton, Esq.
Stan Sharovskiy, Esq.
DENLEA & CARTON LLP
2 Westchester Park Drive, Suite 410
White Plains, NY 10604
Telephone: (914) 331-0100
Facsimile: (914) 331-0105
E-mail: jdenlea@denleacarton.com
jcarton@denleacarton.com
ssharovskiy@denleacarton.com
ANDREW M. JORDAN: Brumble Labor Suit Removed to N.D. Cal.
---------------------------------------------------------
The case styled KERWYN BRUMBLE on behalf of herself and all others
similarly situated, Plaintiff v. ANDREW M. JORDAN, INC., a
California Corporation; and DOES 1-50, inclusive, Defendant, Case
No. 23CV025786, was removed from the Superior Court of the State of
California in and for the County of Alameda, to the United States
District Court for the Northern District of California on March 22,
2023.
The Clerk of Court for the Northern District of California assigned
Case No. 3:23-cv-01336 to the proceeding.
The Complaint alleges causes of action under the California Labor
Code for: (1) failure to pay all minimum wages; (2) failure to pay
all overtime wages: (3) meal period violations; (4) rest period
violations; (5) failure to pay all sick time; (6) wage statement
violations; and (7) waiting time penalties. The complaint also
alleges a cause of action for Unfair Competition under California
Business and Professions Code.
Andrew M. Jordan, Inc. was founded in 1991. The Company's line of
business includes providing excavation work and digging
foundations.[BN]
The Defendant is represented by:
Paul V. Simpson, Esq.
Sarah E. Lucas, Esq.
SIMPSON, GARRITY, INNES & JACUZZI
Professional Corporation
601 Gateway Boulevard, Suite 950
South San Francisco, CA 94080
Telephone: (650) 615-4860
Facsimile: (650) 615-4861
E-mail: psimpson@sgiilaw.com
slucas@sgijlaw.com
APPLE INC: Kelly Suit Transferred to N.D. California
----------------------------------------------------
The case styled Elizabeth Kelly, on behalf of herself and all
others similarly v. Apple Inc., Case No. 5:23-cv-00314 was
transferred from the U.S. District Court for the Eastern District
of Pennsylvania, to the U.S. District Court for the Northern
District of California on March 1, 2023.
The District Court Clerk assigned Case No. 5:23-cv-00895-EJD to the
proceeding.
The nature of suit is stated as Other Fraud.
Apple Inc. -- https://www.apple.com/ -- is an American
multinational technology company headquartered in Cupertino,
California.[BN]
The Plaintiff is represented by:
Charles E. Schaffer, Esq.
LEVIN SEDRAN & BERMAN
510 Walnut Street, Ste. 500
Philadelphia, PA 19106
Phone: (215) 592-1500
Fax: (215) 592-4663
Email: cschaffer@lfsblaw.com
- and -
Michael Francis Ram, Esq.
MORGAN & MORGAN, COMPLEX LITIGATION GROUP
711 Van Ness Avenue, Suite 500
San Francisco, CA 94102
Phone: (415) 358-6913
Fax: (415) 358-6923
Email: MRam@forthepeople.com
The Defendant is represented by:
Amy S. Heath, Esq.
COVINGTON & BURLING LLP
Safesforce Tower
415 Mission Street, Suite 5400
San Francisco, CA 94105
Phone: (415) 591-6000
Fax: (415) 591-6091
Email: aheath@cov.com
- and -
Emily Johnson Henn, Esq.
Kathryn Elizabeth Cahoy, Esq.
COVINGTON & BURLING LLP
3000 El Camino Real
5 Palo Alto Square, 10th Floor
Palo Alto, CA 94306
Phone: (650) 632-4700
Facsimile: (650) 632-4800
Email: ehenn@cov.com
kcahoy@cov.com
- and -
Stephen F. Raiola, Esq.
PIETRAGALLO GORDON ALFANO BOSICK & RASPANTI, LLP
One Oxford Centre, 38th Floor
Pittsburgh, PA 15219
Phone: (412) 263-4373
Email: sfr@pietragallo.com
APPLE INC: W.D. New York Narrows Claims in McTyere Consumer Suit
----------------------------------------------------------------
Judge Lawrence J. Vilardo of the U.S. District Court for the
Western District of New York grants in part the Defendant's motion
to dismiss the case captioned as TRENISE McTYERE and LUCILLE CLARK,
individually and on behalf of all others similarly situated,
Plaintiffs v. APPLE, INC., Defendant, Case No. 21-CV-1133-LJV
(W.D.N.Y.).
On Oct. 18, 2021, the Plaintiffs, Trenise McTyere and Lucille
Clark, commenced this putative class action against Apple, Inc. The
Plaintiffs allege that Apple made false representations when it
"sold" them digital content on the iTunes Store only to later
remove their access to that same digital content. They assert
claims under Sections 349 and 350 of the New York General Business
Law, as well as a common law claim for unjust enrichment.
Apple moved to dismiss the complaint under Federal Rule of Civil
Procedure 12(b)(6). Apple says that the Plaintiffs' General
Business Law claims lack merit because Apple's representations were
not misleading and because the Plaintiffs have not adequately
alleged that they were injured by any such misrepresentations.
The Court does not agree with Apple's argument that "its statements
were not misleading and that, regardless, McTyere and Clark have
not alleged that they were injured by those statements." The Court
finds that Apple's "'right to use' argument cannot carry the water
that Apple asks it to carry. The right to use something may last
but a moment or forever. And by ignoring that issue, Apple's
argument begs the question."
The Court, therefore, concludes that "reasonable consumers might
have been misled when they purchased digital content with the
mistaken impression that the content could not later be removed
from their libraries. . . Because reasonable consumers might have
believed that their purchasing digital content from the iTunes
Store gave them the ability to use that digital content
indefinitely -- not merely the right to use it for some limited
time -- the Plaintiffs have sufficiently alleged that the iTunes
Store contained statements that were materially misleading."
Finally, Apple argues that the plaintiffs' unjust enrichment claim
must be dismissed because it is duplicative of the General Business
Law claims and, regardless, because Apple did not make any
misrepresentations.
The Court explains that "courts in the Second Circuit have
consistently held that unjust enrichment claims should be dismissed
when those claims are duplicative of [General Business Law] claims.
That is, other courts have found that "unjust enrichment claims
should be dismissed where the violative conduct alleged is
conterminous with a conventional tort or contract claim, regardless
of whether the tort or contract claim is dismissed. . . But in
light of a recent Second Circuit summary order, that principle is
not quite as clear as it once was. . . In Axon v. Citrus World,
Inc., 354 F.Supp.3d 170 (E.D.N.Y. 2018), the district court
dismissed an unjust enrichment claim because that claim merely
duplicated the plaintiff's other causes of action based on the same
alleged misrepresentations. On appeal, the Second Circuit affirmed
the dismissal of the unjust enrichment claim on the grounds that
the plaintiff had not alleged a fraud that would render [the
defendant's] enrichment unjust. But the Second Circuit noted that
while the unjust enrichment claim failed for that reason, it is
true that a plaintiff may plead unjust enrichment in the
alternative to a breach of warranty claim."
In the instant case, the Plaintiffs allege that Apple made various
misrepresentations about the nature of "purchases" on the iTunes
Store -- allegations that the Court finds sufficient to survive a
motion to dismiss. And the Plaintiffs seek restitution for those
purported misrepresentations. At this stage of the case, and absent
further guidance from the Second Circuit, the Court declines to
dismiss the unjust enrichment claim as duplicative of the General
Business Law claims.
Accordingly, the Court dismissed the Plaintiffs' request for
injunctive relief, but their claims under the New York General
Business Law, as well as their unjust enrichment claim, may
proceed.
A full-text copy of the Decision & Order dated March 21, 2023, is
available https://tinyurl.com/28hzehpv from Leagle.com.
ARMOUR RESIDENTIAL: Faces Shareholder Suits Over Merger Deal
------------------------------------------------------------
Armour Residential REIT, Inc. disclosed in its Form 10-K report for
the fiscal year ended December 31, 2022, filed with the Securities
and Exchange Commission on February 15, 2023, that nine putative
class action lawsuits were filed in connection with the tender
offer and merger for Javelin Mortgage Investment Corp. All nine
suits name Armour, the previous members of Javelin's board of
directors prior to the merger (of which eight are current members
of Armour's board of directors) and JMI Acquisition Corporation as
defendants.
The lawsuits were brought by purported holders of Javelin's common
stock, both individually and on behalf of a putative class of its
stockholders, alleging that the defendants breached their fiduciary
duties, including claims that they failed to properly value
Javelin, failed to take steps to maximize its value to its
stockholders, ignored or failed to protect against conflicts of
interest, failed to disclose material information about the
transactions, took steps to avoid competitive bidding and to give
Armour an unfair advantage by failing to adequately solicit other
potential acquirers or alternative transactions and erected
unreasonable barriers to other third-party bidders.
The suits also allege that Armour, Javelin and Acquisition aided
and abetted the alleged breaches of fiduciary duties by the
defendants. The lawsuits seek equitable relief, including, among
other relief, to enjoin consummation of the transactions, or
rescind or unwind the transactions if already consummated, and
award costs and disbursements, including reasonable attorneys' fees
and expenses.
The sole Florida lawsuit was never served on the defendants, and
that case was voluntarily dismissed and closed on January 20, 2017.
On April 25, 2016, the Maryland court issued an order consolidating
the eight Maryland cases into one action, captioned "In re JAVELIN
Mortgage Investment Corp. Shareholder Litigation" (Case No.
24-C-16-001542), and designated counsel for one of the Maryland
cases as interim lead co-counsel. On May 26, 2016, interim lead
counsel filed the Consolidated Amended Class Action Complaint for
Breach of Fiduciary Duty asserting consolidated claims of breach of
fiduciary duty, aiding and abetting the breaches of fiduciary duty,
and waste.
In June 27, 2016, defendants filed a Motion to Dismiss the
Consolidated Amended Class Action Complaint for failing to state a
claim upon which relief can be granted. A hearing was held on the
Motion to Dismiss on March 3, 2017, and the court reserved a
ruling.
In October 25, 2022, the court deferred the Order of Dismissal
until May 1, 2023, and if the case is not fully disposed of by that
date, the clerk shall enter on the docket "dismissed for lack of
prosecution without prejudice."
Armour Residential REIT, Inc. is an investment advisor based in
Maryland.
ASPEN DENTAL: Filing for Class Certification Bid Due Jan. 22, 2024
------------------------------------------------------------------
In the class action lawsuit captioned as ANDREW R. PERRONG v. ASPEN
DENTAL MANAGEMENT, INC., REX DENTAL NET INC., REX DIRECT NET, INC.
Case No. 2:22-cv-01234-JFM (E.D. Pa.), the Hon. Judge Murphy
entered an order that:
1. All fact and expert discovery shall be completed no later
than December 15, 2023.
2. Affirmative expert reports shall be served no later than
October 6, 2023.
3. Responsive expert reports, if any, shall be served no
later than November 10, 2023.
4. Expert depositions, if any, shall be concluded no later
than December 15, 2023.
5. Daubert motions shall be filed no later than December 15,
2023. Responses shall be filed no later than December 29,
2023.
6. Motions for summary judgment shall be filed no later than
January 22, 2024.
7. Responses shall be filed no later than February 5, 2024.
8. Motions for class certification shall be filed no later
than January 22, 2024. Responses shall be filed no later
than February 5, 2024.
Aspen is an American dental support organization, a dental practice
management corporation that provides business support and
administrative services in the US.
A copy of the Court's order dated March 14, 2023 is available from
PacerMonitor.com at https://bit.ly/3K1l0DM at no extra charge.[CC]
AUDIBLE INC: Court OKs Temporarily Bid to Seal Documents
--------------------------------------------------------
In the class action lawsuit captioned as Golden Unicorn
Enterprises, Inc. v. Audible, Inc., Case No. 1:21-cv-07059-JMF
(S.D.N.Y.), the Court entered an order granting temporarily the
motion to seal documents as follows:
(1) To allow Audible to file fifteen exhibits to the three
motions with narrow redactions.
(2) To maintain the seal over the unredacted versions of
those fifteen documents that Audible filed on March 6,
2023.
The Court will assess whether to keep the materials at issue sealed
or redacted when deciding the underlying motion.
Audible is an American online audiobook and podcast service that
allows users to purchase and stream audiobooks and other forms of
spoken word content.
A copy of the Court's order dated March 14, 2023 is available from
PacerMonitor.com at https://bit.ly/3JCBh0C at no extra charge.[CC]
The Plaintiff is represented by:
Chris Bagley, Esq.
Gary Jackson, Esq.
LAW OFFICES OF JAMES SCOTT FARRIN
555 S. Mangum Street, Suite 800
Durham, NC 27701
Telephone: (919) 287-5037
E-mail: cbagley@farrin.com
and -
Mitchell M. Breit, Esq.
Leland Belew, Esq.
MILBERG COLEMAN BRYSON PHILLIPS & GROSSMAN
One Pennsylvania Plaza, Floor 50
New York, NY 10119
Telephone: (347) 668-8445
E-mail: mbreit@milberg.com
- and -
P. Renée Wicklund, Esq.
RICHMAN LAW & POLICY
535 Mission Street
San Francisco, CA 94105
Telephone: (415) 259-5688
E-mail: rwicklund@richmanlawpolicy.com
AVEO GROUP: Lawyer's Regret as $500M Class Action Settles for $11M
------------------------------------------------------------------
Michael Pelly of Financial Review reports that the settlement,
which includes an $11 million payment by Aveo to the plaintiffs,
came six days into a scheduled 25-day trial in the Federal Court
before Justice Stewart Anderson.
A potential $500 million class action against Australia's largest
retirement village operator, Aveo Group, has been settled.
The law firm behind the claim, Levitt Robinson, conceded it had no
case and expressed regret on March 28, 2023 for any "distress and
anxiety" caused by the litigation.
With costs for both sides estimated to be $10 million each, the sum
will cover legal and administration but little or no money will
flow to residents who took part in the claim.
Litigation funder Galactic and Levitt Robinson pursued the claim
after The Sydney Morning Herald and the ABC's Four Corners in 2017
alleged Aveo had misled residents and had engaged in fee gouging in
relation to its Aveo Way residential contracts.
Levitt Robinson said residents received less from the sale of their
units as leasehold property when they left an Aveo village, and
that Aveo failed to disclose that to them. It estimated the claim
was worth between $160 million and $500 million.
Aveo denied residents had been misled or that there had been any
financial loss for those who were contemplating selling their
residencies as freehold units.
The settlement deed, which must be approved by the court, included
the unusual step of an agreed statement by a principal of Levitt
Robinson, Stuart Levitt.
It reads (in part): "Levitt Robinson acknowledges that the
introduction and implementation by Aveo and its related entities of
Aveo Way contracts were lawful, in accordance with industry
standards and that we are now satisfied that the Federal Court is
not likely to find that its introduction has caused current or
former residents of Aveo to suffer any loss.
"We express regret for any distress or anxiety which Aveo residents
and staff have experienced as a result of or incidental to the Aveo
class action litigation."
Mr Levitt was contacted for comment, but was unavailable.
Originally, 6200 people were covered by the class action, but
almost 2400 of those group members opted out before the trial
commenced after Justice Anderson invited an amicus to make
submissions.
During the hearing, Justice Anderson made some salient remarks that
cast doubt over the merits of the claim. He told the plaintiff at
one point: "The fact that someone makes a profit doesn't mean that
someone else has an entitlement to that profit. You have to
demonstrate loss."
Aveo said in a statement on March 28, 2023 that it was paying
Galactic and Levitt Robinson $11 million "to bring this matter to a
conclusion after six years of needless legal action".
It said it was "relieved to have this chapter behind us" and that
the end of the case would "provide closure and certainty for our
employees and the residents of our communities".
"The Aveo Way was introduced to provide many benefits we knew were
important to residents at the stage in life they move into our
communities," it said.
"It has proven to be hugely popular with our residents, and we will
continue to implement the Aveo Way, along with similar contracts."
The case, which commenced on March 16, was due to return to court
next week.
Aveo was represented by Arnold Bloch Leibler, with Philip
Crutchfield, KC, as lead counsel. [GN]
AVIVA CANADA: Motion to Quash COVID-19 Class Suit Denied
--------------------------------------------------------
David Gambrill of Canadian Underwriter reports that the court
rejected Aviva's motion to have the matter summarily dismissed. To
be clear, the court did not reject Aviva's grounds for denying
coverage and questioning the composition of the class; it only
found a trial would be necessary to determine the merits of Aviva's
arguments against the class action lawsuit.
Ontario's Superior Court has certified a class action lawsuit by a
window and door manufacturer against Aviva Canada related to the
insurer's broad denial of pandemic-related business interruption
claims.
Nordik Windows Inc. is a custom window and door manufacturer,
supplier, and installer operating in Ontario and Quebec. It called
on the court to add some unrelated businesses that had purchased
business interruption insurance from Aviva as representative
plaintiffs in its class action lawsuit.
"Each of the [additional class members] had an experience with
pandemic-related business losses that is largely similar to
Nordik's experience," the Ontario Superior Court observed in its
decision, released last week. "One of them is Nordik’s sister
company, Cash and Carry Inc. [C&C], which operates out of the same
premises as Nordik and acts as Nordik's retail arm. It is a named
insured under Nordik's insurance policy with Aviva and,
accordingly, has the identical restricted access, negative
publicity, and physical damage coverage as Nordik."
C&C serves the Ottawa area; the entire city lies within a
25-kilometre radius of C&C's business facility. This distance
triggers the negative publicity coverage in Aviva's policy when a
case of COVID-19 is reported.
In court documents, C&C says it began receiving numerous customer
cancellations of orders beginning in March 2020, when the first
COVID-19 cases began to be reported. On Mar. 23, 2020, the Ontario
government ordered all non-essential retail businesses to close. It
amended the order on Apr. 4, 2020, to include a mandatory shutdown
of all new residential construction.
The province's order effectively restricted C&C's installers from
accessing their facility to obtain the newly manufactured windows
and their installation supplies and, consequently, from performing
installations. C&C claimed it lost more than $1.32 million in
business income as a combined result of the COVID-19 closure orders
and the reported outbreaks of COVID-19 in the Ottawa area causing
customer cancellations.
In May 2020, Nordik and C&C both gave notice to Aviva of a claim
for loss of business income as a result of COVID-19. Aviva denied
coverage on Jun. 1, 2020. Nordik and C&C both submitted a proof of
loss to Aviva in March 2021.
Aviva has three types of standard clauses relating to business
interruption coverage, Ontario's Superior Court found. They include
physical damage coverage; negative publicity coverage; and
restricted access coverage. In March 2020, there were "somewhere in
the neighbourhood of 44,000 businesses with Aviva insurance
policies that contained these three clauses," the court found.
The chief technical underwriter for Aviva provided an affidavit
explaining Aviva's position on each of the three forms of coverage,
the court wrote:
-- "the [restricted access] clause does not provide coverage for
business interruption losses caused by province-wide shutdown
orders"
-- "the [negative publicity] clause does not provide coverage for
business income losses arising from global pandemics" and
-- "the actual or suspected presence of COVID-19 at an insured
premises, as well as restrictions placed on access to an insured
premises as a result of any applicable government shutdown orders,
does not amount to 'physical loss of or damage to' those premises .
. ."
Aviva objected to the certification of the class on several
grounds. For example, it argued the representative plaintiff in the
class, Nordik Windows Inc., was declared to be an 'essential
service' by government and could therefore keep their business
operations open throughout the COVID-19 pandemic. Other members in
the class, however, like C&C, were deemed to be non-essential and
had to shut down.
"It is Aviva's view that Nordik was always designated as an
essential business during the COVID-19 pandemic, and so was never
subject to the governmental restrictions on its operations that
triggered its claim for coverage," the Superior Court ruled.
"This challenge, of course, goes far deeper than Aviva's other
attempts to disqualify [Nordik as the representative plaintiff]. If
Aviva is correct in its summary judgment motion, Nordik's own claim
will be at an end and it will no longer be in a position to
instruct counsel on behalf of the class as it will no longer be a
class member."
Nordik's argument on this point turns on how the company
interpreted the government's lockdown legislation. Which, the court
ruled, is a matter to be raised at trial.
Aviva also objected to class members being added to the lawsuit who
had not in fact filed a claim for a business interruption loss. The
insurer argued these members did not have a case against the
insurer because coverage had not actually been denied.
"Aviva objects to including in the proposed class policyholders who
have not yet given individual notice of their claims," as the court
characterized the insurer's argument. "Aviva's counsel submits that
giving individual notice, and having the claim denied, is a
necessary precondition for commencing or participating in a lawsuit
seeking damages for denial of coverage."
On the second point, Nordik argued that since the rejection of
business interruption claims was "across-the-board," it wouldn't
have mattered if they had submitted a claim, since it would have
been denied anyway. Or, as the Superior Court framed the argument:
"As the British Columbia Supreme Court observed in West Coast
Securities Ltd v. Continental Insurance Co. (1975) . . . 'where it
is clear that the insurer will not pay in any event, it is absurd
to require the insured to do acts which will prove useless. '"
Ultimately, the court found a trial would be necessary to figure
out whether claims had to be submitted, and denied, in order for a
business to be a member of the class.
"Cogent and interesting as some of these questions might be, all of
these challenges to Nordik's claim are for another day," the court
ultimately determined. "In responding to [Aviva's] summary judgment
motion under Rule 20.01(3) of the Rules of Civil Procedure, Nordik
does not have to definitively prove its case; rather, it has to
show that there is a genuine issue requiring a trial.
"Nordik has certainly passed that test here. The issue of Nordik's
losses is contentious, but on the record before me neither side has
a definitive answer." [GN]
B&H FOTO & ELECTRONICS: Hwang Files ADA Suit in E.D. New York
-------------------------------------------------------------
A class action lawsuit has been filed against B&H Foto &
Electronics Corp. The case is styled as Jenny Hwang, on behalf of
herself and all others similarly situated v. B&H Foto & Electronics
Corp., Case No. 1:23-cv-02210 (E.D.N.Y., March 22, 2023).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
B&H Photo Video -- https://www.bhphotovideo.com/ -- is an American
photo and video equipment retailer founded in 1973, based in
Manhattan, New York City.[BN]
The Plaintiff is represented by:
Mars Khaimov, Esq.
14749 71st Ave.
Flushing, NY 11367
Phone: (917) 915-7415
Email: mars@khaimovlaw.com
BABYSUPERMARKET.COM: Lawal Files ADA Suit in S.D. New York
----------------------------------------------------------
A class action lawsuit has been filed against Babysupermarket.com,
Inc. The case is styled as Rafia Lawal, on behalf of herself and
all others similarly situated v. Babysupermarket.com, Inc., Case
No. 1:23-cv-02473 (S.D.N.Y., March 23, 2023).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Babysupermarket.com, Inc. -- https://babysupermarket.com/ -- offers
baby furniture and nursery items, toys,and dolls at low prices with
more choices.[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
BACTOLAC PHARMACEUTICAL: Copley Class Settlement Gets Final Nod
---------------------------------------------------------------
In the class action lawsuit captioned as CHARLES COPLEY, et al.,
Individually and on behalf of all others similarly situated, v.
BACTOLAC PHARMACEUTICAL, INC., et al., Case No. 2:18-cv-00575-FB-PK
(E.D.N.Y.), the Hon. Judge Frederic Block entered an order denying
the Plaintiff's motion to strike and granting the U.S.'s motion to
supplement.
-- The Plaintiffs' motion for class certification for the
purposes of settlement and for final approval of the class
settlement is granted.
-- The Plaintiffs' motion for approval of the proposed award
of attorneys' fees is denied without prejudice to renewal
on the terms set forth in the memorandum and order.
The Settlement was negotiated based on an estimated class size of
188,897. It allowed each class member to choose between a coupon
and cash, with defendants agreeing to provide a $10 coupon to each
coupon recipient in the class, but only $100,000 pro rata among the
class members opting for cash.
Had every class member chosen cash, each would have received less
than 53 cents ($100,000/188,897). The Settlement, as contemplated,
was a textbook example of why coupon settlements are looked upon
with suspicion.
As it happened, however, only 10,373 class members made a claim,
with 6,136 taking the cash option. Consequently, each of those
class members is projected to receive $15.85. The result is
sufficient to satisfy the Court of the Settlement's overall
fairness, but it still means that class counsel would receive
approximately ten times more than the class.
Recall that one canister of ADEG costs $39.95. A full refund to
each of the class members claiming cash would total $245,133.20
($39.95 x 6,136). The Settlement Fund is not sufficient to provide
that relief as currently structured but would be if class counsel's
fee was reduced by $145,333.20.
The result would be a more palatable split of approximately 75% to
class counsel and 25% to the class. In sum, a $145,333.20 increase
in the cash available to class members will provide something
approaching complete relief to a significant portion of the class
members who have made a claim and, at the same time, partially
rectify an unacceptable disparity in the share of the Fund going to
attorneys' fees.
This putative multi-state class action stems from harm allegedly
suffered by plaintiffs who purchased and consumed All Day Energy
Greens ("ADEG"), a dietary supplement that they claim caused them
to become ill.
After years of litigation and settlement negotiations aided by a
mediator, the parties have reached a proposed class settlement (the
"Settlement"). Now, the parties seek the Court's final approval of
that Settlement. For the reasons that follow, plaintiffs' motion to
approve the Settlement is granted in all respects except as to
proposed attorneys' fees.
The Court granted preliminary approval of the Settlement on January
10, 2022. The Settlement dictates that eligible class members who
opt in may elect to receive either
(i) a coupon worth $10 toward the future purchase of any
of the Defendants' products, redeemable for a period of
three years, or
(ii) a cash payment, which is projected to be approximately
$15.85.
Separately, the class representatives are to receive service awards
of $5,000 each. Class counsel have also moved for a payout of
$1,194,657.34 in attorneys' fees and costs.
Through the Department of Justice's ("DOJ") Consumer Protection
Branch and the United States Attorney's Office for the Eastern
District of New York (E.D.N.Y.), the United States (the "U.S.") has
objected to the Settlement. It argues that it is unfair for two
reasons: (i) because it primarily benefits class counsel instead of
class members, and (ii) because the representatives of the class
will receive disproportionate awards compared to the rest of the
class members.
The Settlement defines the proposed class as
"all Persons in the United States who purchased one or more
canisters of ADEG that were manufactured as part of the
Recalled Lots, except for Excluded Persons."
The Plaintiffs estimate that the proposed class consists of
approximately 188,897 individuals.
In order to satisfy the awards to class members, Defendants have
agreed to the following distributions:
i) IVL will give a $10 coupon to any class member entitled
to one, up to the estimated class size, and
ii) Defendants will transfer $1.725 million in cash into a
common settlement fund (the "Settlement Fund").
The Settlement Fund consists of:
i) $100,000 designated to satisfy the cash payments to class
members who selected this option, and
ii) $1.625 million designated for attorneys' fees and costs,
service benefit awards of $5,000 for each of the Class
Representatives, and additional administrative costs.
Bactolac is in the Nutraceutical industry, specializing in full
turn key supplement manufacturing.
A copy of the Court's order dated March 13, 2023 is available from
PacerMonitor.com at https://bit.ly/3Z8mXCO at no extra charge.[CC]
The Plaintiffs are represented by:
James J. Bilsborrow, Esq.
Peter Samberg, Esq.
WEITZ & LUXENBERG, PC
700 Broadway
New York, NY 10003
The Defendants are represented by:
Andrew Philip Kates, Esq.
Christian H. Gannon, Esq.
Janine J. Wong, Esq.
Joel Merchant, Esq.
Matthew D. Kelly, Esq.
SEGAL MCCAMBRIDGE SINGER & MAHONEY
850 Third Avenue, Suite 1100
New York, NY 10022
- and -
Cameron W. Brown, Esq.
STACKPOLE AND FRENCH LAW OFFICE
225 Maple Street
Stowe, VT 05672
- and -
Howard A. Fried
MCGIVNEY KLUGER CLARK & INTOCCIA, P.C.
80 Broad Street, 23 rd Floor
New York, NY 10004
- and -
Karen Campbell, Esq.
LEWIS BRISBOIS
77 Water Street, 21 st Floor
New York, NY 10005
- and -
Sheila Carmody, Esq.
Courtney Henson, Esq.
Jennifer Hadley Catero, Esq.
SNELL AND WILMER L.L.P.
400 East Van Buren Street
Suite 1900
Phoenix, AZ 85004
- and -
John A. Anselmo
TYSON & MENDES
420 Lexington Avenue, Suite 2800
New York, NY 10017
BARCLAYS PLC: Settlement Reached in Antitrust Suits
---------------------------------------------------
Barclays PLC disclosed in its Form 20-F report for the fiscal year
ended December 31, 2022, filed with the Securities and Exchange
Commission on February 15, 2023, that in 2015, a putative class
action, making allegations on the manipulation of the Euro-Yen
London Interbank Offered Rate (LIBOR) and Yen (Tokyo Interbank
Offered Rate) LIBOR rates and breaches of the Commodity Exchange
Act and the Antitrust Act, was filed in the U.S. District Court for
the Southern District of New York against Barclays PLC, Barclays
Bank PLC and BCI.
Barclays and the plaintiffs have reached a settlement of $17.75m
for both actions. A final court approval hearing has been scheduled
this month.
Barclays PLC is a commercial bank based in London, England.
BAYADA HOME: Partial Summary Judgment Order in Higgins Suit Upheld
------------------------------------------------------------------
In the case, STEPHANIE HIGGINS, for herself and all others
similarly situated; SHERRI KRAMER; MEGHAN TANEYHILL; YVETTE
MARSHALL; MARGARET MAGEE; SHELLY NEAL; SHEILA LEVESQUE, Appellants
v. BAYADA HOME HEALTH CARE INC., Case No. 21-3286 (3d Cir.), the
U.S. Court of Appeals for the Third Circuit affirms the District
Court's order granting partial summary judgment for Bayada.
Higgins and her co-plaintiffs, the Appellants before the Court now,
filed a collective action and putative class action alleging that
their employer, Bayada, made improper deductions from their
accumulated paid time off ("PTO"). The Plaintiffs argue that the
deductions were effectively reductions in their salary and thus
made in violation of the Fair Labor Standards Act ("FLSA"), 29
U.S.C. Section 201, et seq., and state employment laws, including,
as relevant to Higgins, the Pennsylvania Minimum Wage Act ("PMWA"),
43 P.S. Section 333.101, et seq. Their primary contention is that
PTO qualifies as salary under the FLSA and its related regulations,
and that, by deducting from their PTO, Bayada made deductions from
their salary, which is something the FLSA and regulations forbid.
The District Court saw a meaningful distinction between PTO and
salary and so granted partial summary judgment for Bayada. The
Court then certified its decision for immediate appeal.
Higgins is a registered nurse who formerly worked for Bayada, a
company providing medical and related support services for patients
in their homes. During her employment with Bayada, which lasted
from September 2012 to September 2016, Higgins, like her
co-plaintiffs and all full-time salaried employees, was required to
meet a weekly "productivity minimum."
Bayada health care employees, sometimes called "Clinicians," are
paid a salary but, to meet their productivity minimums, must
accumulate a specified number of "productivity points" a week --
each point being roughly equivalent to 1.33 hours of work -- which
are awarded in exchange for completing work tasks.
When Bayada employees exceed their productivity minimums, they
receive additional compensation. On the other hand, if employees
fail to meet their weekly productivity minimums, Bayada withdraws
from their available PTO to supplement the difference between the
points they were expected to earn and what they actually earned.
Bayada does not, however, deduct from an employee's guaranteed base
salary when the employee lacks sufficient PTO to cover a
productivity point deficit. The only circumstance in which Bayada
would reduce an employee's salary is if the employee voluntarily
takes a day off without sufficient PTO.
When Higgins began working for Bayada, she had a 30-point weekly
productivity minimum, but, at her request, Bayada reduced her
minimum to 25 points. She met her productivity minimum most weeks,
sometimes exceeding it but sometimes falling short. Higgins asserts
that she was under the impression that if she failed to meet her
productivity minimum and lacked sufficient PTO to cover the
productivity point deficit, Bayada would make a deduction from her
base salary yet she never exhausted her available PTO, and there is
no evidence that Bayada ever docked her salary or that of any other
plaintiff.
As already noted, the District Court granted summary judgment for
Bayada on the FLSA claim. It also did so on Higgins' PMWA claim.
The District Court did not, however, resolve the putative class
claims brought by the six other named Plaintiffs under the
employment laws of the states in which they worked. Nevertheless,
the Plaintiffs asked the District Court to certify its summary
judgment order for immediate appeal pursuant to Federal Rule of
Civil Procedure 54(b) and to stay all court proceedings pending the
appeal. The District Court complied, converting its partial summary
judgment ruling into an appealable decision. The timely appeal
followed.
In their appeal, the Plaintiffs first assert that Bayada's
productivity points system is a mere proxy for compensating the
total hours worked by its employees because point values directly
correlate to the amount of time Bayada expects job tasks to take.
According to them, that point system, together with Bayada's
practice of deducting PTO from their accrued amounts of PTO, or
"leave banks," if they failed to meet weekly productivity minimums,
demonstrates that Bayada treats its health care employees as wage
earners whose total compensation is pegged to the number of hours
they work.
The Third Circuit opines that argument miss the mark because the
key question when determining the legal classification of an
employee for FLSA purposes is not whether a pay structure
approximates an hourly wage or even whether an employer threatens
to dock a salaried employee's base pay; it is whether an employer
made an actual deduction from an employee's base pay. There is no
evidence that Bayada reduced the guaranteed base pay of any of the
Plaintiffs.
Because it now holds that PTO is not a part of an employee's salary
under the Department of Labor's salary basis regulations, the Third
Circuit affirms the District Court's decision that Bayada did not
make improper deductions from the Plaintiffs' salaries.
Higgins argues that even if her FLSA claim fails, she is entitled
to relief under the PMWA because Pennsylvania law is even more
protective than the FLSA and statutorily defines wages to include
all earnings of an employee, including fringe benefits, and defines
promised vacation time as a fringe benefit.
The Third Circuit not consider the merits of that argument,
however, because Higgins forfeited it before the District Court and
has done so again on appeal. Likewise, on appeal, Higgins makes
only a passing reference to the PMWA in her opening brief and
mentions it only once in her reply brief. Because Higgins failed to
develop her PMWA argument and has made only passing reference to it
on appeal, the Panel deems that argument forfeited.
For these reasons, the District Court's partial summary judgment
order is affirmed.
A full-text copy of the Court's March 15, 2023 Opinion is available
at https://tinyurl.com/jnuamhk7 from Leagle.com.
Teresa M. Becvar -- tbecvar@stephanzouras.com -- [ARGUED] Haley R.
Jenkins -- hjenkins@stephanzouras.com -- Ryan F. Stephan --
rstephan@stephanzouras.com -- James B. Zouras --
jzouras@stephanzouras.com -- Stephan Zouras 100 North Riverside
Plaza, Suite 2150, Chicago, IL 60606, David J. Cohen --
dcohen@stephanzouras.com -- 604 Spruce Street, Philadelphia, PA
19106, Counsel for the Appellants.
Thomas G. Collins -- thomas.collins@bipc.com -- [ARGUED] Cheri A.
Sparacino -- cheri.sparacino@bipc.com -- Buchanan Ingersoll &
Rooney, 409 N. Second Street Suite 500, Harrisburg, PA 17101,
Gretchen W. Root -- gretchen.root@bipc.com -- Buchanan Ingersoll &
Rooney, 501 Grant Street, Suite 200, Pittsburgh, PA 15219, Counsel
for the Appellee.
BIOMARIN PHARMA: Pension Fund Appeals Suit Dismissal to 9th Cir.
----------------------------------------------------------------
LOCAL 282 PENSION TRUST FUND AND LOCAL 282 ANNUITY TRUST FUND is
taking an appeal from a court order dismissing their lawsuit
entitled Local 282 Pension Trust Fund and Local 282 Annuity, on
behalf of themselves and all others similarly situated, Plaintiffs,
v. BioMarin Pharmaceutical, Inc., et al., Defendants, Case No.
3:21-cv-08254-MMC, in the U.S. District Court for the Northern
District of California.
As previously reported in the Class Action Reporter, Plaintiff
David F. Berlinger filed a federal securities class action on
behalf of a class consisting of all persons and entities other than
the Defendants that purchased or otherwise acquired BioMarin
securities between January 13, 2020 and September 3, 2021, both
dates inclusive (the "Class Period"), seeking to recover damages
caused by the Defendants' violations of the Securities Exchange Act
of 1934.
According to the complaint, on November 7, 2018, BioMarin shared
pre-clinical data of BMN 307, which demonstrated lifetime Phe
corrections in mouse models, and announced that the Company was
planning to file an investigational new drug application ("IND")
for BMN 307 with the United States Food and Drug Administration
("FDA") in the second half of 2019. On January 13, 2020, the
Company announced that the FDA granted IND status for BMN 307 for
the treatment of PKU. On September 24, 2020, the Company announced
that it had dosed the first human participant in the global
Phearless Phase 1/2 study of BMN 307.
On September 5, 2021, BioMarin issued a press release announcing
"that the [FDA] placed a clinical hold on the BMN 307 Phearless
Phase 1/2 study", which "is evaluating BMN 307, an investigational
AAV5-phenylalanine hydroxylase (PAH) gene therapy, in adults with
[PKU]." BioMarin advised investors that "[t]he FDA's clinical hold
was based on interim safety findings from a pre-clinical, non-GLP
pharmacology study."
On this news, BioMarin's stock price fell $7.14 per share, or 8.4%,
to close at $77.81 per share on September 7, 2021, the next trading
day.
Throughout the Class Period, the Defendants allegedly made
materially false and misleading statements regarding the Company's
business, operations, and compliance policies. Specifically, the
Defendants made false and misleading statements and/or failed to
disclose that: (i) BMN 307 was less safe than BioMarin had led
investors to believe; (ii) BMN 307's safety profile made it likely
that the FDA would place a clinical hold on the Phearless Phase 1/2
study; (iii) accordingly, the Company had overstated BMN 307's
clinical and commercial prospects; and (iv) as a result, the
Company's public statements were materially false and misleading at
all relevant times.
On Mar. 25, 2022, Local 282 Pension Trust Fund and Local 282
Annuity Trust Fund filed an amended complaint, which the Defendants
moved to dismiss on May 25, 2022.
On Jan. 19, 2023, the Court granted the Defendants' motion to
dismiss the amended complaint through an Order entered by Judge
Maxine M. Chesney. On Feb. 21, 2023, an order dismissing the action
was signed by Judge Chesney.
The appellate case is captioned Local 282 Pension Trust Fund and
Local 282 Annuity v. BioMarin Pharmaceutical, Inc., et al., Case
No. 23-15433, in the United States Court of Appeals for the Ninth
Circuit, filed on March 23, 2023.
The briefing schedule in the Appellate Case states that:
-- Appellant Local 282 Pension Trust Fund and Local 282 Annuity
Trust Fund District No. 9 Mediation Questionnaire was due on March
30, 2023;
-- Appellant Local 282 Pension Trust Fund and Local 282 Annuity
Trust Fund District No. 9 opening brief is due on May 24, 2023;
-- Appellees Jean-Jacques Bienaime, BioMarin Pharmaceutical,
Inc., Lon Cardon and Henry J. Fuchs answering brief is due on June
26, 2023; and
-- Appellant's optional reply brief is due 21 days after service
of the answering brief. [BN]
Plaintiff-Appellant LOCAL 282 PENSION TRUST FUND AND LOCAL 282
ANNUITY TRUST FUND DISTRICT NO. 9, on behalf of themselves and all
others similarly situated, is represented by:
Spencer A. Burkholz, Esq.
Joseph David Daley, Esq.
Steven M. Jodlowski, Esq.
David Mitchell, Esq.
ROBBINS GELLER RUDMAN & DOWD, LLP
655 W. Broadway, Suite 1900
San Diego, CA 92101
Telephone: (619) 231-1058
- and -
Shawn Anthony Williams, Esq.
ROBBINS GELLER RUDMAN & DOWD, LLP
One Montgomery Street
San Francisco, CA 94104
Telephone: (415) 288-4545
Defendants-Appellees BIOMARIN PHARMACEUTICAL, INC., et al., are
represented by:
Brett Hom De Jarnette, Esq.
Patrick Edward Gibbs, Esq.
COOLEY, LLP
3175 Hanover Street
Palo Alto, CA 94304
Telephone: (650) 849-7005
(650) 843-5535
- and -
John Dwyer, Esq.
COOLEY, LLP
10265 Science Center Drive
San Diego, CA 92121
Telephone: (858) 550-6453
- and -
Joshua Walden, Esq.
CLEARY GOTTLIEB STEEN & HAMILTON, LLP
1841 Page Mill Road, Suite 250
Palo Alto, CA 94304
Telephone: (650) 815-4160
BRIANNA PIZZA: Fails to Properly Pay Cashiers, Torrez Suit Says
---------------------------------------------------------------
NOEL TORREZ, individually and on behalf of all others similarly
situated, Plaintiff v. BRIANNA PIZZA OF N.Y., INC. d/b/a THE PIZZA
PLACE, and MARIO LOMBARDO, Defendants, Case No. 2:23-cv-02264
(E.D.N.Y., March 23, 2023) is a class action against the Defendants
for violations of the Fair Labor Standards Act and the New York
Labor Law including failure to pay minimum wages, failure to pay
overtime wages, failure to pay spread of hours compensation,
failure to provide wage notice, and failure to furnish accurate
wage statements.
The Plaintiff was employed by the Defendants as a cashier at The
Pizza Place from June 2019 through August 2022.
Brianna Pizza of N.Y., Inc., d/b/a The Pizza Place, is an operator
of a pizza shop located at 1344 Broadway, Hewlett, New York. [BN]
The Plaintiff is represented by:
Nolan Klein, Esq.
LAW OFFICES OF NOLAN KLEIN, PA
5550 Glades Rd., Ste. 500
Boca Raton, FL 33431
Telephone: (954) 745-0588
E-mail: klein@nklegal.com
BURGER KEEPER: Hwang Files ADA Suit in E.D. New York
----------------------------------------------------
A class action lawsuit has been filed against Burger Keeper, LLC.
The case is styled as Jenny Hwang, on behalf of herself and all
others similarly situated v. Burger Keeper, LLC, Case No.
1:23-cv-02213 (E.D.N.Y., March 22, 2023).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Burger Keeper, LLC doing business as 5 Napkin Burger Upper West
Side -- http://www.5napkinburger.com/-- is a modern bistro chain
serving gourmet meat & veggie burgers.[BN]
The Plaintiff is represented by:
Mars Khaimov, Esq.
14749 71st Ave.
Flushing, NY 11367
Phone: (917) 915-7415
Email: mars@khaimovlaw.com
BUTTERFLY NETWORK: Continues to Defend Exchange Act Class Suit
--------------------------------------------------------------
Butterfly Network 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 23, 2023, that the Company
continues to defend itself from the Exchange Act-related class
suit.
On February 16, 2022, a purported class action lawsuit was filed
against the Company, certain of its executive officers and
directors, and certain of Longview's executive officers and
directors prior to the Business Combination, alleging violations of
the Exchange Act and Rule 10b-5 and Rule 14a-9 promulgated
thereunder. The alleged class consists of all persons or entities
who purchased or otherwise acquired the Company's stock between
February 16, 2021 and November 15, 2021 and/or holders as of the
record date for the special meeting of shareholders held on
February 12, 2021 in connection with the approval of the Business
Combination.
The lawsuit is premised upon allegations that the defendants made
false and misleading statements and/or omissions about its
post-Business Combination business and financial prospects,
including the impact of the COVID-19 pandemic.
The Company intends to vigorously defend against this action.
Butterfly Network Inc. is into digital health business based in
Connecticut.
BZX DAO: Court Ruling Could Be Applied to Developers With Multisigs
-------------------------------------------------------------------
Ezra Reguerra of CoinTelegraph reports that on March 27, United
States District Judge Larry Alan Burns passed a ruling concerning
the class-action lawsuit against bZx DAO and others. While the
ruling seemed normal on the surface, Web3 lawyers spotted a
significant development for decentralized autonomous organizations
(DAOs).
Delphi Labs general counsel Gabriel Shapiro tweeted that the ruling
can also be potentially applied to developers with multisigs.
In a new update to the class-action lawsuit against bZX DAO
members, a United States district judge ruled that the ability for
developers to upgrade a smart contract where the key is in the
hands of a single developer makes the arrangement custodial.
The case's defendants claimed that transactions in the bZx protocol
are noncustodial because users can maintain custody of their
assets. However, a successful phishing attack rendered the
difference between the terms meaningless. The court filing stated:
"A successful phishing attack on a bZx developer allowed a hacker
to gain access to all of the funds supposedly in [users'] custody,
rendering the distinction between custodial and non-custodial
meaningless here."
Gabriel Shapiro, the general counsel for crypto firm Delphi Labs,
tweeted that the court's ruling means that a single developer
holding the upgrade key makes the arrangement custodial. Shapiro
noted that this might also mean the same for developers with
multisigs.
Should this happen, decentralized finance (DeFi) platforms that
employ the use of multisigs may be seen as custodial platforms.
This could require these projects to obtain the necessary licenses
for custody to comply with the law.
Gregory Schneider, the deputy general counsel for Hedera, also
commented on the lawsuit. According to the lawyer, the ruling is
very significant for the DAO space. Schneider highlighted that the
case must be "closely examined by anyone thinking about legal
liability in the DAO space." [GN]
CALIFORNIA: Brown Antitrust Suit Removed to C.D. Cal.
-----------------------------------------------------
The case styled LETRICIA LAVERN BROWN, on behalf of herself and all
others similarly situated, Plaintiff v. THE STATE OF CALIFORNIA;
COUNTY OF LOS ANGELES; TORRANCE MEMORIAL MEDICAL CENTER; PALOS
VERDES PENINSULA UNIFIED SCHOOL DISTRICT; COUNTY OF LOS ANGELES
SHERIFF DEPARTMENT; THE UNITED STATES OF AMERICA; COUNTY OF LOS
ANGELES DEPARTMENT OF CHILDREN AND FAMILY SERVICES DOES 1 TO 200,
INCLUSIVE, Defendants, Case No. 23STCV00605, was removed from the
Superior Court of the State of California in and for the County of
Los Angeles to the United States District Court for the Central
District of California on March 16, 2023.
The Clerk of Court for the Central District of California assigned
Case No. 2:23-cv-01966 to the proceeding.
The Plaintiff's complaint alleges, among other things, that
Defendant engaged in a monopoly in violation of federal anti-trust
laws allegedly resulting in the cancellation of $30,000 per month
in payments for her IFC facility.
State of California is a state in the Western United States,
located along the Pacific Coast.[BN]
The Defendants are represented by:
Jessica S. Pliner, Esq.
Megan J. Rutenberg, Esq.
LEWIS BRISBOIS BISGAARD & SMITH LLP
2185 North California Boulevard, Suite 300
Walnut Creek, CA 94596
Telephone: (925) 357-3456
Facsimile: (925) 478-3260
E-mail: Jessica.Pliner@lewisbrisbois.com
Megan.Rutenberg@lewisbrisbois.com
CALIFORNIA: D. B. Appeals Final Judgment in Suit v. CMS to 9th Cir.
-------------------------------------------------------------------
D. B., as conservator for John Doe 1, et al. are taking an appeal
from a court order in the lawsuit entitled D. B., et al.,
individually and on behalf of all others similarly situated,
Plaintiffs, v. Chiquita Brooks-Lasure, in her official capacity as
Administrator for the Centers for Medicare and Medicaid Services,
et al., Defendants, Case No. 3:22-cv-04501-WHA, in the U.S.
District Court for the District Court for Northern California.
In this putative class action, the Plaintiffs claim the Defendants
were and are relocating them and other residents of a skilled
nursing facility in violation of state and federal law. The
Plaintiffs request that they and their conservators be allowed to
proceed under pseudonyms.
On Jan. 11, 2023, Court Judge William Alsup dismissed the case for
lack of subject-matter jurisdiction. Judge Alsup ruled that the
Plaintiffs may seek leave to amend their complaint and shall have
until noon on February 9, 2023, to file a motion, noticed on the
normal 35-day track, for leave to file an amended complaint. A
proposed amended complaint must be appended to the motion. The
motion should explain how the amendments to the complaint cure the
deficiencies identified, as well as any others raised in the
Defendants' briefs. If such a motion is not filed by the deadline,
the case will be closed.
On Feb. 17, 2023, the Plaintiffs notified the Court and the
Defendants that they will not seek leave to amend their complaint.
On Feb. 21, 2023, the Court entered final judgment.
The appellate case is captioned D. B., et al v. Chiquita
Brooks-Lasure, et al., Case No. 23-15436, in the United States
Court of Appeals for the Ninth Circuit, filed on March 23, 2023.
The briefing schedule in the Appellate Case states that:
-- Appellants D. B., C. C., Jane Doe 2 and John Doe 2 Mediation
Questionnaire was due on March 30, 2023;
-- Transcript is due on May 23, 2023;
-- Appellants D. B., C. C., Jane Doe 2 and John Doe 2 opening
brief is due on June 29, 2023;
-- Appellees Tomas Aragon, Xavier Becerra, Chiquita
Brooks-Lasure, California Department of Public Health and Does
answering brief is due on July 31, 2023; and
-- Appellant's optional reply brief is due 21 days after service
of the answering brief. [BN]
Plaintiffs-Appellants D. B., as conservator for John Doe 1, et al.,
individually and on behalf of all others similarly situated, are
represented by:
Ruth M. Bond, Esq.
Louise H. Renne, Esq.
RENNE PUBLIC LAW GROUP
350 Sansome Street, Suite 300
San Francisco, CA 94104
Telephone: (415) 848-7200
Defendants-Appellees CHIQUITA BROOKS-LASURE, in her official
capacity as Administrator for the Centers for Medicare and Medicaid
Services, et al., are represented by:
Shiwon Choe, Esq.
DOJ-USAO
450 Golden Gate Avenue
San Francisco, CA 94102
- and -
Michael Thomas Pyle, Esq.
DOJ - Office of the U.S. Attorney
150 Almaden Boulevard, Suite 900
San Jose, CA 95113
- and -
Joshua Sondheimer, Esq.
AGCA - Office of the California Attorney General
455 Golden Gate Avenue
San Francisco, CA 94102
CALPINE OPERATING: Herrera Labor Suit Removed to S.D. Cal.
----------------------------------------------------------
The case styled ELOY HERRERA, individually and on behalf of all
others similarly situated, Plaintiff v. CALPINE OPERATING SERVICES
COMPANY, INC.; CALPINE CORPORATION; and DOES 1 through 50,
inclusive, Defendants, Case No. 37-2023-00007065-CU-OE-CTL, was
removed from the Superior Court of the State of California, County
of San Diego, to the United States District Court for the Southern
District of California on March 23, 2023.
The Clerk of Court for the Southern District of California assigned
Case No. 3:23-cv-00521-LAB-BLM to the proceeding.
The complaint asserts the following causes of action: (1) failure
to pay all overtime wages; (2) meal period violations; (3) rest
period violations; (4) paid sick leave violations; (5) untimely
payment of wages; (6) wage statement violations; (7) waiting time
penalties; (8) failure to provide records; and (9) unfair
competition.
Calpine Operating Services Company, Inc. owns and operates an
electric generation facility. The Company offers electric power,
wind power generation equipments, and power generator sales.[BN]
The Defendants are represented by:
Stacey E. James, Esq.
Luis E. Lorenzana, Esq.
LITTLER MENDELSON, P.C.
501 W. Broadway, Suite 900
San Diego, CA 92101-3577
Telephone: (619) 232-0441
Facsimile: (619) 232-4302
E-mail: sjames@littler.com
llorenzana@littler.com
CARNIVAL CORPORATION: Mikulsky Sues Over Unlawful Wiretapping
-------------------------------------------------------------
Erica Mikulsky, individually and on behalf of all others similarly
situated v. CARNIVAL CORPORATION, Case No. 3:23-cv-00404-WQH-JLB
(S.D. Cal., March 2, 2023), is brought against Carnival for
wiretapping the electronic communications of visitors to its
website, www.carnival.com, in violation of the California Invasion
of Privacy Act, and constitutes the torts of invasion of the
privacy rights and intrusion upon seclusion of website visitors.
Carnival procures third-party vendors, such as Microsoft
Corporation, to embed snippets of JavaScript computer code
("Session Replay Code") on Carnival's website, which then deploys
on each website visitor's internet browser for the purpose of
intercepting and recording the website visitor's electronic
communications with the Carnival website, including their mouse
movements, clicks, keystrokes (such as text being entered into an
information field or text box), URLs of web pages visited, and/or
other electronic communications in real-time ("Website
Communications"). These third-party vendors (collectively, "Session
Replay Providers") create and deploy the Session Replay Code at
Carnival's request.
After intercepting and capturing the Website Communications,
Carnival and the Session Replay Providers use those Website
Communications to recreate website visitors' entire visit to
www.carnival.com. The Session Replay Providers create a video
replay of the user's behavior on the website and provide it to
Carnival for analysis. Carnival's procurement of the Session Replay
Providers to secretly deploy the Session Replay Code results in the
electronic equivalent of "looking over the shoulder" of each
visitor to the Carnival website for the entire duration of their
website interaction.
The Plaintiff brings this action individually and on behalf of a
class of all California citizens whose Website Communications were
intercepted through Carnival's procurement and use of Session
Replay Code embedded on www.carnival.com, as well as its subpages,
and seeks all civil remedies provided under the causes of action,
including but not limited to compensatory, statutory, and/or
punitive damages, and attorneys' fees and costs, says the
complaint.
The Plaintiff has visited www.carnival.com and certain of its
subpages on her computer while in California to review cruise
schedules and to purchase tickets for cruises originating in
California.
Carnival is a cruise line that offers cruise vacations throughout
the United States and internationally.[BN]
The Plaintiff is represented by:
Steven M Nathan, Esq.
HAUSFELD LLP
33 Whitehall Street
Fourteenth Floor
New York, NY 10034
Phone: (646) 357-1100
Fax: (212) 202-4322
Email: snathan@hausfeld.com
CDM FEDERAL: Hibben FLSA Suit Transferred to S.D. Tex.
------------------------------------------------------
The case styled GALEN GLEN HIBBEN, individually and on behalf of
all others similarly situated, Plaintiff V. CDM FEDERAL PROGRAMS
CORPORATION, Defendant, Case No. 1:22-cv-10395, was transferred
from the United States District Court for the District of
Massachusetts to the United States District Court for the Southern
District of Texas on March 16, 2023.
The Clerk of Court for the Southern District of Texas assigned Case
No. 4:23-cv-00961 to the proceeding.
The Plaintiff brings this suit against CDM Federal Programs
Corporation to recover regular and overtime wages under the Fair
Labor Standards Act.
CDM Federal Programs Corporation is part of an organization that
secured contracts with the Federal Emergency Management Agency. CDM
provides various disaster and emergency relief construction,
cleanup and related services throughout the country and offshore
U.S. territories.[BN]
The Plaintiff is represented by:
Philip J. Gordon, Esq.
GORDON LAW GROUP
585 Boylston Street
Boston, MA 02116
Telephone: (617) 536-1800
Facsimile: (617) 536-1802
The Defendant is represented by:
Sarah B. Herlihy, Esq.
Lisa G. Arrowood, Esq.
ARROWOOD LLP
10 Post Office Square, 7th Flr.
Boston, MA 02109
Telephone: (617) 849-6211
CENTIMARK CORPORATION: Mutz Suit Removed to E.D. Pennsylvania
-------------------------------------------------------------
The case styled as Michael Mutz, on behalf of himself and others
similarly situated v. CentiMark Corporation, was removed to the
U.S. District Court for the Eastern District of Pennsylvania on
March 23, 2023.
The District Court Clerk assigned Case No. 5:23-cv-01142 to the
proceeding.
The nature of suit is state as Other Fraud.
CentiMark Corporation -- https://www.centimark.com/ -- is a
national roofing contractor company headquartered in Canonsburg,
Pennsylvania.[BN]
The Plaintiff appears pro se.
The Defendant is represented by:
Courtney K. Mazzio, Esq.
GORDON REES SCULLY MANSUKHANI, LLP
1717 Arch Street, Suite 610
Philadelphia, PA 19103
Phone: (215) 280-8094
Email: cmazzio@grsm.com
CENTRAL PUGET: Summary Judgment in Penner Suit Affirmed on Appeal
-----------------------------------------------------------------
In the case captioned as JOSHUA PENNER and TODD McKELLIPS,
individually and on behalf of a class of all persons similarly
situated, Appellants v. CENTRAL PUGET SOUND REGIONAL TRANSIT
AUTHORITY and STATE OF WASHINGTON, Respondents, Case No. 57134-0-II
(Wash. Ct. App.), the Court of Appeals of Washington affirms the
order granting summary judgment in favor of the Respondents.
The superior court granted Central Puget Sound Regional Transit
Authority and the State's motion for summary judgment, finding all
claims were barred under res judicata because of the final decision
in Black II. The court further ruled, apparently in the
alternative, that the tax refund and 2015 constitutionality claims
were precluded by stare decisis from Black I and Pierce County II,
the tax refund claims were barred by the statute of limitations,
and the 2010 constitutionality claims were time barred and moot.
The court also determined the ballot title claims were
nonjusticiable and untimely, and that Joshua Penner forfeited his
claim because he did not defend the merits.
In 1992, the legislature authorized the most populous counties in
this state to create a local agency to plan and implement a "high
capacity transportation system." Using this authority, King,
Pierce, and Snohomish Counties voted in 1993 to create Sound
Transit "to address traffic congestion in the central Puget Sound
region."
In 1996, voters in those counties approved a Motor Vehicle Excise
Tax to fund bus services and rail lines through Sound Transit.
MVETs are calculated by a depreciation schedule based on the
vehicle's value, set out by statute.
In 2010, in an attempt to "streamline and make technical
amendments" to the vehicle registration statutes and in response to
the ruling in the case titled Pierce County v. State, 159 Wn.2d 16,
21, 148 P.3d 1002 (2006) (Pierce County II), the legislature passed
Senate Bill 6379. Because of the Pierce County II holding, the 2010
statute apparently attempted to exclude the Sound Transit Bonds
from the application of the 2006 depreciation schedule. Instead of
referring to the 1999 depreciation schedule then being used by
Sound Transit, the statute referred to the repealed 1996 schedule.
In 2015, the legislature again amended RCW 81.104.160 (2015
statute) and still generally imposed the 2006 depreciation schedule
on MVETs but, once again, attempted a carve out for the Sound
Transit Bonds. But like the 2010 statute, the 2015 statute referred
to the 1996 laws, not the 1999 depreciation schedule.
In 2018, a group of taxpayers, including Taylor Black, filed a
complaint against Sound Transit and the State, arguing the 2015
statute was unconstitutional under article II, section 37 of the
Washington Constitution because it did not restate in full any
depreciation schedules referenced in the statute (Black v. Cent.
Puget Sound Reg'l Transit Auth., 195 Wn.2d 198, 201, 457 P.3d 453
(2020) (Black I)). The Black I court determined Sound Transit's
notice was irrelevant to the case, stating, "Because Sound
Transit's actions did not have any bearing on the constitutionality
of the MVET statute itself, this notice did not impact [their]
holding." The court then concluded that the 2015 statute did not
violate article II, section 37 of the Washington Constitution
because it was a complete
Within days of filing his motion for reconsideration based on Sound
Transit's use of the 1999 depreciation schedule, Black filed his
second complaint, a proposed class action, against Sound Transit
and the State (Black II), alleging 19 causes of action, including
seeking to recover tax refund payments and an injunction to prevent
Sound Transit's use of the 1999 depreciation schedule, as well as
challenging the constitutionality of the 2010 and 2015 statutes.
The superior court in Black II granted Sound Transit's motion for
summary judgment, agreeing with Sound Transit that the lawsuit was
precluded by Black I and Pierce County II and res judicata applied
to the constitutionality claims. The superior court also ruled that
the tax refund claims were barred by the statute of limitations and
the reasoning of Black I also applied to bar those claims. The
superior court further ruled that Black was not entitled to an
injunction. Given its rulings, the superior court in Black II ruled
any discovery issues were moot.
Following Black's voluntary dismissal of the Black II appeal,
Joshua Penner, with representation from the same attorneys who
represented Black, filed a new proposed class action lawsuit
against Sound Transit in 2021. Penner's complaint was identical to
Black II's complaint, including the identical causes of action;
only the names of the parties changed. The lawsuit alleged the same
exact 19 causes of action as Black did, including seeking a return
to the taxpayers of tax proceeds obtained by Sound Transit's
misapplication of the MVET depreciation schedule, challenging the
constitutionality of the 2010 and 2015 statutes and the 2015
statute ballot title, and seeking an injunction to bar Sound
Transit from applying the 1999 depreciation schedule.
Sound Transit again moved for summary judgment. Pointing to the
superior court's decision in Black II.
Looking at the four requirements for res judicata, the Court finds
and concludes that the doctrine appropriately bars Penner's claims
after the final decision in Black II. With identical complaints
between Penner and Black, the subject matter and causes of action
are the same. The defendant, Sound Transit, is the same. The Court
holds that the reasoning in the case titled In re Election Contest
Filed by Coday, 156 Wn.2d 485, 501, 130 P.3d 809 (2006) applies
here. The Coday court explained "it only applied res judicata. . .
because the parties in the previous litigation had adequate
representation and a 'significant stake in the outcome of the
contest and invested significant resources in pursuing all viable
grounds for the contest.'"
As such, the superior court did not err by applying res judicata to
bar Penner's claims.
A full-text copy of the Opinion dated March 21, 2023, is available
https://tinyurl.com/3se29myf from Leagle.com.
CEREBRAL INC: Awadallah Sues Over Disclosure of Patients' Info
--------------------------------------------------------------
ATTIYA AWADALLAH, individually and on behalf of all others
similarly situated, Plaintiff v. CEREBRAL INC., a Delaware
corporation, Defendant, Case No. 8:23-cv-00493-FWS-DFM (C.D. Cal.,
March 20, 2023) is a class action against the Defendant for
invasion of privacy, breach of implied contract, breach of
confidence, and violations of the Electronic Communications Privacy
Act, the Computer Fraud and Abuse Act, the California Invasion of
Privacy Act, and the Unfair Competition Law.
The Plaintiff specifically brings this case to address Defendant's
transmission and disclosure of Plaintiff's and Class members'
confidential personally identifiable information and protected
health information to Meta Platforms, Inc. d/b/a Facebook and/or
Google LLC d/b/a Google via a tracking pixel installed on
Defendant's website.
According to the complaint, the Defendant unlawfully intercepted
and transmitted Plaintiff's and Class members' PII, including
their: names, phone numbers, email addresses, dates of birth, IP
addresses, Cerebral client ID numbers, and demographic and other
information. The Defendant did disclose Plaintiff's and Class
members' private information via the tracking pixel and other
technologies to third parties, such as Facebook, Google, TikTok,
and others. The Defendant's disclosure of Plaintiff's and Class
members' private information constitutes a gross violation of
common law and statutory data privacy laws, says the suit.
The Plaintiff and Class Members are individuals who are seeking or
have sought medical services and/or treatment from Defendant.
Cerebral Inc. is a healthcare company incorporated in Delaware with
its principal place of business and headquarters located in
California.[BN]
The Plaintiff is represented by:
Rachele R. Byrd, Esq.
Ferdeza Zekiri, Esq.
WOLF HALDENSTEIN ADLER FREEMAN & HERZ LLP
750 B Street, Suite 1820
San Diego, CA 92101
Telephone: (619) 239-4559
Facsimile: (619) 234-4599
E-mail: byrd@whafh.com
zekiri@whafh.com
- and -
Bryan L. Bleichner, Esq.
Philip J. Krzeski, Esq.
CHESTNUT CAMBRONNE PA
100 Washington Ave., Ste. 1700
Minneapolis, MN 55401
Telephone: (612) 339-7300
Facsimile: (613) 336-2940
E-mail: bbleichner@chestnutcambronne.com
pkrzeski@chestnutcambronne.com
- and -
Joseph M. Lyon, Esq.
THE LYON LAW FIRM, LLC
2754 Erie Ave.
Cincinnati, OH 45208
Telephone: (513) 381-2333
Facsimile: (513) 381-2333
E-mail: jlyon@thelyonfirm.com
CEREBRAL INC: Gould Files Suit in C.D. California
-------------------------------------------------
A class action lawsuit has been filed against Cerebral, Inc., et
al. The case is styled as David Gould, individually and on behalf
of all others similarly situated v. Cerebral, Inc., Cerebral
Medical Group, P.A., Does 1 through 100, inclusive, Case No.
2:23-cv-02144-FMO-MAA (C.D. Cal., March 22, 2023).
The nature of suit is state as Other Personal Property for Tort
Negligence.
Cerebral -- https://cerebral.com/ -- offers online therapy, mental
health assessments and expert care on your schedule.[BN]
The Plaintiffs are represented by:
Matthew Alexander Smith, Esq.
MIGLIACCIO AND RATHOD LLP
201 Spear Street Suite 1100
San Francisco, CA 94105
Phone: (415) 489-7004
Email: msmith@classlawdc.com
CHURCHOME: Faces Class Action Suit Over Tithing Policy
------------------------------------------------------
Stephanie Martin of ChurchLeaders reports that Churchome, the
Washington state megachurch led by Judah and Chelsea Smith, is at
the center of a class-action lawsuit brought by more than 100
current and former employees. They allege that the church and its
leaders, including the Smiths and CEO David Kroll, violated two
state laws by requiring employees to tithe from their salaries.
According to the claim, previous church employees have been fired
for not giving at least 10% of their earnings directly back to the
ministry.
Lead plaintiff Rachel Kellogg, a current Churchome employee,
described discussions of tithing mandates during staff meetings.
She also provided communications from church officials warning that
her job was in jeopardy if she failed to comply. Her attorney
argues that Churchome is violating Washington state's Wage Rebate
Act as well as its Consumer Protection Act.
Kellogg, who began working for Churchome in late 2019, alleges that
neither the job listing nor the orientation process addressed the
giving requirement. Not until April 2020, in a virtual staff
meeting, she claims, did leaders emphasize the importance of
tithing.
According to the claim, previous church employees have been fired
for not giving at least 10% of their earnings directly back to the
ministry.
Lead plaintiff Rachel Kellogg, a current Churchome employee,
described discussions of tithing mandates during staff meetings.
She also provided communications from church officials warning that
her job was in jeopardy if she failed to comply. Her attorney
argues that Churchome is violating Washington state’s Wage Rebate
Act as well as its Consumer Protection Act.
Kellogg, who began working for Churchome in late 2019, alleges that
neither the job listing nor the orientation process addressed the
giving requirement. Not until April 2020, in a virtual staff
meeting, she claims, did leaders emphasize the importance of
tithing.
During that meeting, the complaint alleges, Judah Smith told
Churchome employees, "I'll be very honest: People have already been
transitioned and moved on and fired because they were not tithing."
Smith also reportedly told staff members that donating 10% of their
paychecks back to the church was a "black-and-white" issue and
"even more important than the religious rite of taking communion."
The lawsuit claims Smith defended those beliefs by quoting a
tithing-related Scripture verse he received from NFL quarterback
Russell Wilson, who serves on Churchome's board of directors. Smith
also reportedly used the Bible to show that employees should "sell
their 'possessions and belongings' rather than fail to rebate 10%
of their paychecks back to Churchome," according to the suit.
Despite Financial Strain, Plaintiff Was Warned to Resume Tithing
Fearful of losing her job, Kellogg said she set up automatic bank
withdrawals to give 10% of her salary back to Churchome. Soon
afterward, she was injured in a car accident that left her vehicle
totaled. The resulting financial hardships, including the loss of
her rental home, forced her to not tithe during 2021.
Included with the legal filing are messages from Churchome
officials to Kellogg, the church's post-production producer. Wes
Halliburton, chief creative officer, wrote that she needed to
resume her tithing "asap."
Ben Sorte, Kellogg's boss, wrote to her in a 2022 reprimand: "It is
my expectation that you get in rhythm with our company policy on
tithing. While I understand the complexities of finances, this is
an expectation for all Churchome employees and you need to correct
this pattern immediately." Otherwise, Sorte wrote, Kellogg faced
"more serious disciplinary action, up to and including
termination."
In early 2023, when Kellogg reportedly told Churchome content
director Joe Goods she couldn't afford to tithe, he indicated he'd
once sold his house instead of violating the church's tithing
requirement. [GN]
CHUY'S OPCO: Sharp Sues Over Restaurant Staff's Unpaid Wages
------------------------------------------------------------
THALIA SHARP, individually, and on behalf of herself and all others
similarly situated current and former employees, Plaintiff v.
CHUY'S OPCO, INC., Defendant, Case No. 3:23-cv-00262 (M.D. Tenn.,
March 23, 2023) seeks to recover from the Defendant unpaid minimum
wages and other damages owed to Plaintiff and other similarly
situated current and former tipped employees who are members of a
class pursuant to the Fair Labor Standards Act.
Plaintiff Sharp was employed as an hourly-paid tipped employee at
one of Defendant's Chuy's restaurants within the past three years
preceding the filing of this collective action lawsuit.
Chuy's Opco, Inc. operates Chuy's restaurants in Tennessee and in
18 other states in the U.S.[BN]
The Plaintiff is represented by:
Gordon E. Jackson, Esq.
J. Russ Bryant, Esq.
James L. Holt, Jr., Esq.
JACKSON, SHIELDS, YEISER, HOLT OWEN & BRYANT
262 German Oak Drive
Memphis, TN 38018
Telephone: (901) 754-8001
Facsimile: (901) 754-8524
E-mail: gjackson@jsyc.com
rbryant@jsyc.com
jholt@jsyc.com
COCA-COLA COMPANY: Hiedger Consumer Suit Removed to E.D. Mo.
------------------------------------------------------------
The case styled MELANIE HIEDGER, individually and on behalf of all
others similarly situated, Plaintiff v. THE COCA-COLA COMPANY, DOES
1 through 10, Defendants, Case No. 23SL-CC00718, was removed from
the Circuit Court of St. Louis County, Missouri to the United
States District Court for the Eastern District of Missouri on March
20, 2023.
The Clerk of Court for the Eastern District of Missouri assigned
Case No. 4:23-cv-00349 to the proceeding.
Ms. Heidger's claims relate to allegedly misleading advertising to
the packaging of Coca-Cola's Topo Chico(R) Margarita Hard Seltzer
products. Specifically, Heidger alleges that the products' use of
the flavor designation "Margarita" and packaging including images
of the agave plant misleads reasonable consumers into believing
that the products contain tequila. Ms. Heidger asserts common law
claims for breach of warranty (Count I), breach of implied contract
(Count II), and unjust enrichment (Count III), and further asserts
that Coca-Cola violated the Missouri Merchandising Practices Act.
The Coca-Cola Company is an American multinational corporation
founded in 1892, best known as the producer of Coca-Cola.[BN]
The Defendant is represented by:
Megan McCurdy, Esq.
STINSON LLP
1201 Walnut Street, Suite 2900
Kansas City, MO 64106-2150
Telephone: (816) 691-2649
E-mail: megan.mccurdy@stinson.com
- and -
Steven A. Zalesin, Esq.
Jane Metcalf, Esq.
PATTERSON BELKNAP WEBB & TYLER LLP
1133 Avenue of the Americas
New York, NY 10036-6710
Telephone: (212) 336-2000
E-mail: sazalesin@pbwt.com
jmetcalf@pbwt.com
CONSTRUCTION PARTNERS: Assad Seeks to Void Certificate of Inc.
--------------------------------------------------------------
In the class action complaint, George Assad, Jr., v. Construction
Partners, Inc., Case No. 2023-0354 (Del. Ch., March 22, 2023),
Assad alleges that the Construction Partners, Inc. violated the
242(b)(2) of the Delaware Code's Title 8. On November 3, 2022, the
SunTx-controlled Board passed a resolution proposing an amendment
of the Construction Partners certificate of incorporation to
exculpate the company's officers from liability for breaching their
duty of care.
According to the complaint, the Board's resolution in favor of the
amendment remained conditioned on receiving the statutorily
required stockholder vote. On Feb. 23, 2023, SunTx and its
affiliates used their supervoting shares to approve the amendment.
Moreover, Assad claims that the said amendment is invalid because
it runs afoul of Section 242(b)(2) and since the company failed to
solicit separate class votes of Class A common stock and Class B
common stock. Accordingly, Assad seeks a declaration that new
Section 8.1 of the Construction Partners Charter is void for
failure of the statutorily required approval, says the suit.
Construction Partners builds and maintains highways and roads
across Alabama, Florida, Georgia, North Carolina, and South
Carolina. Private equity fund SunTx Capital Partners and its
affiliates have controlled Construction Partners since its founding
in 2001. Construction Partners is incorporated in Delaware, its
principal executive offices are located in Dothan, Alabama, and its
stock trades on the Nasdaq Global Select Market under the ticker
"ROAD." [BN]
The Plaintiff is represented by:
Gregory V. Varallo, Esq.
Daniel E. Meyer, Esq.
BERNSTEIN LITOWITZ BERGER & GROSSMANN LLP
500 Delaware Avenue, Suite 901
Wilmington, DE 19801
Telephone: (302) 364-3600
- and -
Mark Lebovitch, Esq.
BERNSTEIN LITOWITZ BERGER & GROSSMANN LLP
1251 Avenue of the Americas
New York, NY 10020
Telephone: (212) 554-1400
CONTEMPORARY SERVICES: Fails to Pay Proper Wages, Williamson Says
-----------------------------------------------------------------
JODECI WILLIAMSON, individually and on behalf of all others
similarly situated, Plaintiff v. CONTEMPORARY SERVICES CORPORATION,
Defendant, Case No. 2:23-cv-02158 (W.D. Tenn., March 23, 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 Williamson was employed by the Defendant as security
guard.
CONTEMPORARY SERVICES CORPORATION provides crowd management and
event security services. The Company offers workforce management,
incident reporting, recruiting, training, green initiatives,
corporate support, and inter-branch communication services. [BN]
The Plaintiff is represented by:
Gordon E. Jackson, Esq.
J. Russ Bryant, Esq.
JACKSON SHIELDS YEISER HOLT OWEN & BRYANT
262 German Oak Drive
Memphis, TN 38018
Telephone: (901) 754-8001
Facsimile: (901) 754-8524
Email: gjackson@jsyc.com
rbryant@jsyc.com
COOKIES KIDS.COM: Black Files ADA Suit in E.D. New York
-------------------------------------------------------
A class action lawsuit has been filed against Cookies Kids.com,
Inc. The case is styled as Jahron Black, on behalf of himself and
all others similarly situated v. Cookies Kids.com, Inc., Case No.
1:23-cv-02209 (E.D.N.Y., March 22, 2023).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Cookie's -- https://www.cookieskids.com/ -- offers a huge range of
discount school uniforms for sale, including uniforms for both boys
and girls, and all ages and grade levels.[BN]
The Plaintiff is represented by:
Mars Khaimov, Esq.
14749 71st Ave.
Flushing, NY 11367
Phone: (917) 915-7415
Email: mars@khaimovlaw.com
CORRECTIONS SPECIAL: Federal Judge Upheld Denial of Inmates' Suit
-----------------------------------------------------------------
Matt Enright of York Dispatch reports that a federal judge has once
again blocked efforts by York County Prison inmates to have their
lawsuit alleging civil rights violations by prison training
contractor Corrections Special Applications Unit listed as a class
action.
Judge Jennifer Wilson upheld an earlier ruling by Judge Martin
Carlson, saying the inmates' attorneys objections were not enough
to overturn Carlson's decision.
"The fact that Plaintiffs disagree with the outcome of this
analysis is not a basis to decline to adopt the report and
recommendation," Wilson wrote in her ruling.
The inmate allegations stem from a March 2021 incident in which
prison staff and representatives from a training contractor
allegedly forced inmates to strip naked at gunpoint, march into the
gymnasium and stand against the wall for hours without access to
food or medical care. According to the lawsuit, inmates were also
allegedly threatened with a mock execution in which staff were told
to "lock, load and take aim" at them. One inmate reportedly had a
panic attack.
The lawsuit also alleges that C-SAU leader Joseph Garcia allegedly
yanked the inmate off the ground by his handcuffs and told the
inmate that if he continued to move or express fear, he would be
shot in the head.
A default judgment was already issued against C-SAU and Garcia for
reportedly failing to respond to the lawsuit. York County, however,
continues to contest the allegations.
An attorney for the inmates said he was reviewing additional
options.
"Plaintiff's counsel are disappointed with the denial of class
certification," attorney Alan Denenberg said March 28, 2023. "We
are reviewing all of our options, including a petition for review
by the 3rd Circuit Court of Appeals."
Matthew Clayberger, attorney for York County and York County
Prison, declined comment due to ongoing litigation.
In an email response March 28, 2023, Garcia wrote: "I have no idea
what you're even talking about. I and nobody that I know have told
me anything."
Garcia, in explaining his failure to respond, previously said that
his organization wasn't served paperwork in the lawsuit.
Inmates at York County Prison filed a lawsuit in December 2021
shortly after the county approved a two-year, $252,770 contract for
"confidential training" with C-SAU, which has garnered controversy
for its conduct.
The county would later agree with C-SAU to end the contract months
before it was up, while paying C-SAU an additional $43,500 for
equipment.
If it had been approved, certifying the lawsuit as class action
would have broadened the pool of plaintiffs to any inmate jailed at
the prison since C-SAU began their work. In his ruling earlier this
year, Carlson found the inmates had not met the sufficient
prerequisites.
"The plaintiffs' proposed class includes individuals 'who will be
incarcerated in York County Prison', meaning the injunctive relief
would be prospective and thus there would not be a finite universe
of potential class members," Carlson wrote. "Further there would be
no objective criteria to apply to determine the class."
Another ruling by Carlson earlier this year recommended the
dismissal of one allegation against county officials only, which
alleged that the county had violated inmates' 14th Amendment equal
protection rights by contracting with C-SAU. Carlson found that
entering into the contract itself did not in itself deprive inmates
of their rights, nor did it qualify as "extreme behavior."
That was then merged with another allegation that accuses all
defendants of violating inmates' civil rights protections. However,
an attempt by the defendants to have a count alleging conspiracy by
York County, C-SAU and York County Prison to deprive inmates of
their rights dismissed did not succeed.
According to Allegheny County Jail Warden Orlando Harper, York was
one of two Pennsylvania counties that recommended C-SAU in 2021.
Allegheny County, however, subsequently barred its prison from
contracting with C-SAU over concerns about the program and Garcia.
Noelle Hanrahan, a private investigator hired by Allegheny County,
called Garcia "the Bernie Madoff of correctional consultants"
during an interview with The York Dispatch in 2021. Hanrahan's
report included information about time Garcia spent in a British
prison in the 1980s.
"You couldn't have done an inquiry without running into problems,"
Hanrahan said in the 2021 interview.
She added: "There were red flags on every single category that one
would check in a background check."
An earlier incarnation of C-SAU called the Corrections Special
Operations Group was the subject of an investigation following the
2021 death of an inmate in a Charleston, South Carolina, jail.
Although the two officers involved in that case were never
criminally charged, they were fired. The jail system settled with
the victim's family for $10 million. [GN]
COTY DTC HOLDINGS: Read FTSA Suit Removed to M.D. Fla.
------------------------------------------------------
The case styled BRITTANY READ, individually and on behalf of all
others similarly situated, Plaintiff v. COTY DTC HOLDINGS, LLC,
Defendant, Case No. 23-CA-001007, was removed from the Circuit
Court of the Thirteenth Judicial Circuit, in and for Hillsborough
County, Florida, to the United States District Court for the Middle
District of Florida on March 23, 2023.
The Clerk of Court for the Middle District of Florida assigned Case
No. 8:23-cv-00662 to the proceeding.
The complaint alleges a single cause of action claiming Defendant
violated the Florida Telephone Solicitation Act by sending an
unsolicited "telephonic sales call" to Plaintiff's cell phone
number.
Coty DTC Holdings, LLC is an American-French multinational beauty
company.[BN]
The Plaintiff is represented by:
Mark Schellhase, Esq.
GRAYROBINSON, P.A.
2255 Glades Road, Suite 301E
Boca Raton, FL 33431
Telephone: (561) 368-3808
E-mail: mark.schellhase@gray-robinson.com
- and -
David M. Poell, Esq.
SHEPPARD MULLIN RICHTER & HAMPTON LLP
321 N. Clark Street, 32nd Floor
Chicago, IL 60654
Telephone: (312) 499-6349
E-mail: dpoell@sheppardmullin.com
COVANTA HOLDING: Brashevitzky Files Suit in S.D. Florida
--------------------------------------------------------
A class action lawsuit has been filed against Covanta Holding
Corporation, et al. The case is styled as Rabbi Avrohom
Brashevitzky, Maria Alejandra Duran, Total Cycling Mechanical
Corp., individually and on behalf of all others similarly situated
v. Covanta Holding Corporation, Covanta Dade, Renewable Energy,
LLC, EQT Infrastructure Corporation, EQT Infrastructure V, Case No.
1:23-cv-20861-CMA (S.D. Fla., March 3, 2023).
The nature of suit is stated as Other P.I. for Tort/Non-Motor
Vehicle.
Covanta Holding Corporation -- https://www.covanta.com/ -- is a
private energy-from-waste and industrial waste management services
company headquartered in Morristown, New Jersey.[BN]
The Plaintiffs are represented by:
Bruce Charles Kaplan, Esq.
KAPLAN & KAPLAN INTERNATIONAL LAW FIRM, LLC
9737 Doral Blvd., Ste. 482
Doral, FL 33178
Phone: (305) 321-0021
Email: bkaplan@kaplan.attorney
- and -
Perry R. Sanders, Jr., Esq.
THE SANDERS LAW FIRM
31 N. Tejon, Suite 400
Colorado Springs, CO 80903
Phone: (719) 630-1556
CREW KNITWEAR: Bunting Files ADA Suit in E.D. New York
------------------------------------------------------
A class action lawsuit has been filed against Crew Knitwear, Inc.
The case is styled as Rasheta Bunting, individually and as the
representative of a class of similarly situated persons v. Crew
Knitwear, Inc. doing business as: Bobeau, Case No. 1:23-cv-02204
(E.D.N.Y., March 22, 2023).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Crew Knitwear doing business as Bobeau -- https://bobeau.com/ -- is
a leading brand of women's contemporary clothing and
loungewear.[BN]
The Plaintiff is represented by:
Dan Shaked, Esq.
SHAKED LAW GROUP, P.C.
14 Harwood Court, Suite 415
Scarsdale, NY 10583
Phone: (917) 373-9128
Email: shakedlawgroup@gmail.com
DILIGENT CORP: Fails to Protect Patients' Info, Petillo Alleges
---------------------------------------------------------------
In the class action complaint, Katherine Petillo, on behalf of
herself and all others similarly situated v. Diligent Corporation,
and University of Colorado Health d/b/a UC Health, Case No.
1:23-cv-02439 (S.D.N.Y., March 22, 2023), Petillo alleges that the
defendants violated the Health Insurance Portability and
Accountability Act and the Colorado Consumer Protection Act.
According to the complaint, Diligent, a software-as-a-service
company serving corporate boards across the country, lost control
over its client's consumers' highly sensitive personal information
in a September 30, 2022, data breach by cybercriminals. On or
around Nov. 11, 2022, UC Health, a health care system and a client
of Diligent, was first notified by Diligent that its patients'
sensitive information were involved in the data breach. However, on
or about Jan. 27, 2023--four months after the unauthorized party
first gained access to consumers' sensitive Information and over
two months after defendants first discovered the data Breach--UC
Health finally notified its patients about the data breach, says
the suit.
Moreover, Petillo asserts that Defendants' failure to timely detect
and report the data breach made its consumers vulnerable to
identity theft without any warnings to monitor their financial
accounts or credit reports to prevent unauthorized use of their
sensitive information. She seeks injunctive relief, damages, and
restitution, together with costs and reasonable attorneys' fees,
the calculation of which will be based on information in
defendants' possession.
Diligent, is a New York Corporation, with its principal place of
business at 111 W 33rd St 16th Floor, New York, NY. UC Health, is a
Colorado Corporation, with its principal place of business at 12401
East 17th Ave., Mail Stop F417, Aurora, CO.
The Plaintiff is represented by:
James Bilsborrow, Esq.
WEITZ & LUXENBERG, PC
700 Broadway
New York, NY 10003
Telephone: (212) 558-5500
E-mail: jbilsborrow@weitzlux.com
- and -
Samuel J. Strauss, Esq.
Raina Borrelli, Esq.
TURKE & STRAUSS LLP
613 Williamson Street, Suite 201
Madison, WI 53703
Telephone: (608) 237-1775
E-mail: sam@turkestrauss.com
raina@turkestrauss.com
DISCOVER FINANCIAL: TCPA Class Suit Settlement Heard on July 25
---------------------------------------------------------------
Top Class Actions reports that the final approval hearing for the
Discover TCPA settlement is scheduled for July 25, 2023 in the case
- captioned Jackson, et al. v. Discover Financial Services Inc.,
Case No. 1:21-cv-04529, in the U.S. District Court for the Northern
District of Illinois.
Discover agreed to pay $1 million to resolve claims it violated the
federal Telephone Consumer Protection Act (TCPA) with unsolicited
phone calls about accounts the call recipients did not own.
The settlement benefits individuals who were not Discover customers
but received a phone call from Discover that used an artificial or
prerecorded voice between Aug. 25, 2017, and Feb. 7, 2023, where
the subject of the call was a credit card account issued by
Discover.
Plaintiffs in the TCPA class action lawsuit accused Discover of
contacting them with illegal robocalls regarding accounts they
didn't own. According to the class action lawsuit, these calls
violated the TCPA.
Discover is a credit card company that offers home equity loans,
student loans and other lending opportunities.
Under the terms of the Discover TCPA settlement, class members can
receive a cash payment.
According to the settlement website, each claimant is estimated to
receive between $40 and $110. Exact payments will vary depending on
the number of valid claims filed.
No residual funds will revert to Discover after payments are made.
Funds will be used for a second round of payments if there are
enough funds remaining, and then any remaining funds will be
donated to court-approved charities.
The deadline for exclusion and objection is June 7, 2023.
The final approval hearing for the Discover TCPA settlement is
scheduled for July 25, 2023.
In order to receive a settlement payment, class members must submit
a valid claim form by June 7, 2023.
Individuals who were not Discover customers but received a phone
call from Discover that used an artificial or prerecorded voice
between Aug. 25, 2017, and Feb. 7, 2023, where the subject of the
call was a credit card account issued by Discover.
Potential Award
$40 to $110
Proof of Purchase
N/A
Claim Form Deadline
06/07/2023
Final Hearing
07/25/2023
Settlement Website
JacksonTCPASettlement.com
Claims Administrator
Jackson v. Discover Financial Services, Inc.
c/o Kroll Settlement Administration LLC
P.O. Box 5324
New York, NY 10150-5324
833-709-0661
Class Counsel
GREENWALD DAVIDSON RADBILL PLLC
HIRALDO PA
IJH LAW
EISENBAND LAW PA
Defense Counsel
STROOCK & STROOCK & LAVAN LLP
GREENWALD DAVIDSON RADBILL PLLC
HIRALDO PA
IJH LAW
EISENBAND LAW PA
Defense Counsel
STROOCK & STROOCK & LAVAN LLP [GN]
DISH NETWORK: Faces Class Action Suit Over Ransomware Attack
------------------------------------------------------------
Edward Gately of Channel Futures reports that Dish Network now
faces at least two shareholder class-action lawsuits in response to
a widespread outage the company attributes to a ransomware attack.
Personal information was likely stolen by the malicious hacker(s).
Bragar Eagel & Squire, and Bernstein Liebhard filed the
class-action lawsuits in the U.S. District Court for the District
of Colorado. The suits are on behalf of investors who bought or
otherwise acquired Dish securities between Feb. 22, 2021, and Feb.
27, 2023.
Bernstein Liebhard's class-action lawsuit also alleges violations
of the Securities Exchange Act of 1934.
Throughout the class period, Dish made materially false and
misleading statements regarding the company's business, operations
and prospects, Bragar Eagel & Squire said.
In a U.S. Securities and Exchange Commission (SEC) filing, Dish
said the network outage affected internal servers and IT telephony.
It also said the threat actor(s) extracted certain data from its IT
systems.
Over the weekend, the Wall Street Journal reported Dish is still
working to get all of its operations up and running. Customers said
they are still struggling to access certain services such as HBO
Max and other third-party streaming services, access their accounts
and reach customer-service call centers. In addition, customers are
waiting for updates on whether their personal information was
compromised.
We couldn't reach Dish for comment on the lawsuits. Its website no
longer details any issues stemming from the cyberattack.
On Feb 24, Dish announced that a "network outage" caused the
company's websites and apps to cease functioning. That subjected
customers to authentication issues when signing into TV channel
apps using their Dish credentials, and appeared to render the
company's call center phone numbers unreachable, according to the
lawsuits.
Then, on Feb. 28, Dish confirmed it had "determined that the outage
was due to a cybersecurity incident and notified appropriate law
enforcement authorities," adding that the "threat agent" behind the
ransomware attack stole data from Dish's compromised systems,
potentially containing personal information, the lawsuits said.
Dish's stock price subsequently fell 6.5%, closing at $11.41 per
share on Feb. 28.
"As a result of defendants' wrongful acts and omissions, and the
precipitous decline in the market value of the company's
securities, plaintiff and other class members have suffered
significant losses and damages," Bragar Eagel & Squire said.
According to the class-action lawsuits, Dish allegedly:
Overstated its operational efficiency and maintained a "deficient"
cybersecurity and IT infrastructure.
As a result, Dish was unable to properly secure customer data,
leaving it vulnerable to access by malicious third parties.
The foregoing cybersecurity deficiencies also both rendered Dish's
operations susceptible to widespread service outages and hindered
the company's ability to respond to such outages. [GN]
DOCTOR'S BEST: Martin Suit Removed to C.D. California
-----------------------------------------------------
The case styled as Ruth Martin, individually and on behalf of all
others similarly situated v. Doctor's Best, Inc., Case No.
30-02023-01302828-CU-MT-CXC was removed from the Superior Court of
California, County of Orange, to the U.S. District Court for the
Central District of California on March 3, 2023.
The District Court Clerk assigned Case No. 8:23-cv-00378-FWS-KES to
the proceeding.
The nature of suit is state as Other Fraud.
Doctor's Best, Inc. -- https://drbvitamins.com/ -- manufactures and
distributes dietary and nutritional supplements. The Company offers
supplements for anti-aging, antioxidant, blood sugar support, bone
health, brain and memory, circulation, digestion, energy, eye
health, and heart health.[BN]
The Plaintiff is represented by:
Scott J. Ferrell, Esq.
Victoria C. Knowles, Esq.
PACIFIC TRIAL ATTORNEYS APC
4100 Newport Place Drive Suite 800
Newport Beach, CA 92660
Phone: (949) 706-6464
Fax: (949) 706-6469
Email: sferrell@pacifictrialattorneys.com
vknowles@pacifictrialattorneys.com
The Defendant is represented by:
Ashley Margaret Simonsen, Esq.
Zachary Reed Glasser, Esq.
COVINGTON AND BURLING LLP
1999 Avenue of the Stars
Los Angeles, CA 90067
Phone: (424) 332-4800
Fax: (424) 332-4749
Email: asimonsen@cov.com
zglasser@cov.com
DONOTPAY INC: Faridian Sues Over Unauthorized Practice of Law
-------------------------------------------------------------
Jonathan Faridian, individually and on behalf of all others
similarly situated v. DONOTPAY, INC., a Delaware corporation, Case
No. CGC-23-604987 (Cal. Super. Ct., San Francisco Cty., March 3,
2023), is brought against the Defendant to stop the "world's first
robot lawyer" from continuing to engage in the unauthorized
practice of law.
The Defendant DoNotPay claims to be the "world's first robot
lawyer" that can help people with a range of legal issues, from
drafting powers of attorney, to creating divorce settlement
agreements, or filing suit in small claims court.
Unfortunately for its customers, DoNotPay is not actually a robot,
a lawyer, nor a law firm. DoNotPay does not have a law degree, is
not barred in any jurisdiction, and is not supervised by any
lawyer. DoNotPay is merely a website with a repository
of--unfortunately, substandard--legal documents that at best fills
in a legal adlib based on information input by customers.
This is precisely why the practice of law is regulated in every
state in the nation. Individuals seeking legal services most often
do not fully understand the law or the implications of the legal
documents or processes that they are looking to DoNotPay for help
with.
In California, practicing law without a license is prohibited by
the State Bar Act, which prohibits persons from holding themselves
out as lawyers in California or practicing law in the state of
California while not being admitted to the California bar (or
otherwise authorized to practice)., says the complaint.
The Plaintiff was a client of DoNotPay until January 2023.
DoNotPay operates an AI-powered chatbot that uses natural language
processing and machine learning algorithms to provide legal advice
and assistance to users through its website, DoNotPay.com.[BN]
The Plaintiff is represented by:
Rafey S. Balabanian, Esq.
EDELSON PC
150 California Street, 18th Floor
San Francisco, CA 94111
Phone: 415.212.9300
Fax: 415.373.9435
Email: rbalabanian@edelson.com
- and -
Jay Edelson, Esq.
J. Eli Wade-Scott, Esq.
Emily Penkowski, Esq.
EDELSON PC
350 North LaSalle Street, 14th Floor
Chicago, IL 60654
Phone: 312.589.6370
Fax: 312.589.6378
Email: jedelson@edelson.com
ewadescott@edelson.com
epenkowski@edelson.com
DS NATURALS: Court Grants in Part Bid to Dismiss Lesh Class Suit
----------------------------------------------------------------
In the case, CAROL LESH, Plaintiff v. DS NATURALS, LLC, Defendant,
Case No. 22-cv-01036-HSG (N.D. Cal.), Judge Haywood S. Gilliam,
Jr., of the U.S. District Court for the Northern District of
California grants in part and denies in part the Defendant's motion
to dismiss.
Lesh filed the putative class action on Feb. 18, 2022, alleging
that the Defendant's No Cow Protein Bars falsely advertise the
amount of protein they contain. She contends that the product
labels do not account for the quality -- or digestibility -- of the
protein, as required under federal and state law. The Plaintiff
contends that the Defendant's products are made with rice and pea
protein, which are "low quality proteins" that are not fully
digestible. Of the 22 grams of protein advertised on the lemon
meringue pie flavored bar, for example, the Plaintiff states that
it actually only contains approximately 13 grams of protein "in a
form humans can use."
The Plaintiff's claims, which parallel those brought against
protein-containing products in a ballooning number of cases in this
district, turn on the regulatory structure created by the Food and
Drug Administration ("FDA"). The FDA requires all products to
include "the number of grams of protein in a serving, expressed to
the nearest gram" on the product's nutrition facts panel ("NFP").
The Plaintiff contends that the Defendant's labels are both
unlawful and misleading because they violate California's Sherman
Food Drug & Cosmetic Law, which incorporates the FDA's labeling
regulations. Specifically, she appears to challenge three aspects
of the Defendant's labeling:
First, the Plaintiff brings a front label claim, in which she
alleges that the protein content claim on the front of the bars is
inaccurate because Defendant uses plant-based proteins which are
not fully digestible, and this figure is not calculated using
PDCAAS.
Second, the Plaintiff brings a nutrition facts panel claim, in
which she alleges that Defendant failed to include the corrected
amount of protein per serving, expressed as a Percent of Daily
Value figure, in the NFP.
Lastly, the Plaintiff brings a hybrid claim in which she
contends that the protein content claim on the front label is
misleading because Defendant does not include the percent of daily
value figure in the NFP.
Based on these allegations, the Plaintiff brings causes of action
for violations of California's Unfair Competition Law ("UCL"),
Consumers Legal Remedies Act ("CLRA"), and False Advertising Law
("FAL"), as well as for fraud, deceit and/or misrepresentation and
unjust enrichment. The Defendant seeks to dismiss the complaint in
its entirety.
As an initial matter, the Defendant argues that the Plaintiff lacks
standing to bring her NFP claims because she does not allege that
she relied on any information in the NFP when purchasing the
products.
Judge Gilliam finds that the Plaintiff only asserts that she
purchased a lemon meringue pie protein bar "after reading and
relying on the Product's front label that promised the protein bar
provided 22g PLANT PROTEIN.'" She does not allege that she reviewed
the NFP, or that she relied on the purported absence of the percent
of daily value figure when she made her purchases. The Plaintiff
appears to concede that she does not adequately allege reliance for
purposes of her NFP claims. Therefore, the motion on this basis is
granted.
The Defendant also contends that Plaintiff lacks standing to pursue
injunctive relief. The Plaintiff alleges that she was deceived by
the labeling on the No Cow's bars because she believed that the
products contained 22 grams of protein, as advertised on the front
labels.
Judge Gilliam finds that when the Plaintiff's allegations are
viewed in the light most favorable to her -- as they must be at
this stage -- the Plaintiff simply seeks to buy the No Cow's
products as advertised. She has alleged that she cannot rely on the
product's labels when shopping for protein bars, and thus cannot
purchase the products although she would like to purchase them in
future if properly labeled. These allegations are sufficient to
establish a risk of future harm.
The Defendant next contends that the Plaintiff's front label claims
are expressly preempted by FDA regulation.
To the extent the Plaintiff suggests that the protein content claim
on the front label must be calculated using PDCAAS, Judge Gilliam
has already found that the FDA regulations permit use of the
nitrogen method for such statements. And, the Defendant does not
appear to argue that the Plaintiff's hybrid claims are preempted,
and Judge Gilliam finds that they are not. Accordingly, the motion
as to the Plaintiff's hybrid claims on this basis is denied.
Lastly, the Defendant argues that the Plaintiff's claims are not
supported by plausible allegations that a reasonable consumer is
likely to be deceived. It urges that this is one of those rare
cases where dismissal is warranted because the No Cow's bars
contain the number of grams of protein indicated on the label and
the Plaintiff's allegations are otherwise too conclusory.
Judge Gilliam disagrees. He finds that at this stage the Plaintiff
has plausibly alleged that the Defendant's labels could deceive a
reasonable consumer.
Accordingly, Judge Gilliam grants in part and denies in part the
Defendant's motion to dismiss. He dismisses the Plaintiff's claims
based on the NFP for lack of standing with leave to amend and
dismisses the Plaintiff's claims based on the front labels as
preempted under FDA regulations without leave to amend. However,
Judge Gilliam denies the motion as to the Plaintiff's hybrid
claims. The Plaintiff may file an amended complaint within 21 days
of the Order.
Further, a telephonic case management conference is set for May 9,
2023, at 2:00 p.m. All counsel will use the following dial-in
information to access the call: Dial-In: 888-808-6929; Passcode:
6064255
All attorneys and pro se litigants appearing for a telephonic case
management conference are required to dial in at least 15 minutes
before the hearing to check in with the courtroom deputy. For call
clarity, parties will not use speaker phone or earpieces for these
calls, and where at all possible, parties will use landlines.
A full-text copy of the Court's March 15, 2023 Order is available
at https://tinyurl.com/2p8jcm68 from Leagle.com.
DULLES DRYWALL: Ramos Suit Seeks Construction Workers' Unpaid Wages
-------------------------------------------------------------------
ADOLFO RAMOS and ADOLFO RAMOS DURAN, individually and on behalf of
all others similarly situated, Plaintiffs v. DULLES DRYWALL, INC.;
CHARMIN CONSTRUCTION, LLC; and FABIAN GONZALEZ, Defendants, Case
No. 1:23-cv-00407 (E.D. Va., March 27, 2023) is a class action
against the Defendants for failure to pay their employees their
legally mandated wages under the Federal Fair Labor Standards Act
of 1938, the Virginia Wage Payment Act, the Virginia Minimum Wage
Act, and the Virginia Overtime Wage Act.
The Plaintiffs were employed by the Defendants as construction
workers in Leesburg, Virginia in 2022 and 2023.
Dulles Drywall, Inc. is a construction company based in Chantilly,
Virginia.
Charmin Construction, LLC is a construction company based in
Manassas, Virginia. [BN]
The Plaintiffs are represented by:
Rachel Nadas, Esq.
Matthew K. Handley, Esq.
HANDLEY FARAH & ANDERSON PLLC
1201 Connecticut Avenue NW, Suite 200K
Washington, DC 20001
Telephone: (202) 899-2991
E-mail: rnadas@hfajustice.com
- and -
Matthew B. Kaplan, Esq.
THE KAPLAN LAW FIRM
1100 N. Glebe Rd., Suite 1010
Arlington, VA 22201
Telephone: (703) 665-9529
E-mail: mbkaplan@thekaplanlawfirm.com
DUNKIN' DONUTS: App Overcharges Customers, Kelledy Class Suit Says
------------------------------------------------------------------
Pat Murphy of Massachusetts Lawyers Weekly reports that Dunkin'
Donuts customers are routinely overcharged when placing orders from
their cellphones using the app provided by the national coffee and
baked goods chain, according to a newly filed federal class
action.
"[T]he total charged to a customer, as calculated by the Mobile
Application, systematically exceeded the displayed prices for
individual items when specific purchases were made at the Affected
Stores," states the March 22 complaint filed in Kelledy v. Dunkin
Brands, Inc. in U.S. District Court. "Because of this, many
thousands of Dunkin' consumers have been unfairly and deceptively
overcharged through their use of the Mobile Application for
purchases made at many hundreds of Dunkin' locations throughout the
United States."
The lead plaintiff in the case, Martin Kelledy, is a resident of
Dorchester. According to the complaint, in 2022 Kelledy began
noticing undisclosed charges to purchases he made using the Dunkin'
mobile app he had downloaded to his cellphone.
For example, the plaintiff alleged that on April 23, 2022, he
purchased a "Large Original Blend Iced Coffee" for $3.69 and an
"Everything Bagel" (with plain cream cheese) for $3.09. While the
app should have charged a sub-total of $6.78, the app calculated a
sub-total of $8.03. According to Kelledy, in placing his order the
app failed to indicate that he would be paying extra for the cream
cheese on his bagel.
"Tax was then additionally calculated on top of that incorrect
Sub-Total, meaning that Mr. Kelledy not only paid an overcharge of
$1.25, but also paid tax on the $1.25 overcharge," the complaint
states.
In addition to Massachusetts, the plaintiff alleges that he has
made purchases at Dunkin' Donut stores in Rhode Island, New York,
New Hampshire, Maine and Connecticut.
"The imposition of this Undisclosed Charge has resulted in Mr.
Kelledy paying an unknown extra amount of money, through the
Dunkin' Mobile Application, to an unknown number of Dunkin' stores,
on an unknown number of occasions," the plaintiff alleges.
According to the complaint, customers can download the Dunkin'
mobile app after agreeing to the company's terms and conditions.
The app allows customers to make online purchases at participating
Dunkin' Donuts locations, providing customers with the menu of
items available at the particular store as well as the prices of
those items. Orders can be modified through drop-down menus
offering specific flavors, sweeteners and add-ons.
Customers pay for their purchases electronically, picking up their
order at the selected location.
Kelledy alleges that the Dunkin' app "routinely" fails to disclose
charges for add-ons such as cream cheese, butter, and whipped
cream.
The terms and conditions for the Dunkin' app include a mandatory
arbitration clause and a Massachusetts choice-of-law clause
favoring Canton-based Dunkin' Brand Group.
The complaint explains that while the terms for the app require
arbitration, the American Arbitration Association referred the
parties to the "appropriate court" after declining to arbitrate the
matter on the ground that the Dunkin' arbitration provision
"materially deviates from an acceptable provision."
In observance of the choice-of-law provision, the class complaint
seeks statutory damages, compensatory damages, and injunctive
relief pursuant to G.L.c. 93A, the Massachusetts Consumer
Protection Act. The plaintiff seeks relief on behalf of a "national
class of affected customers" or, in the alternative, a class of
customers having made purchases in Massachusetts.
The plaintiff is represented by attorney Jeffrey G. Thorn of
Boston. The case has been assigned to Judge Richard G. Stearns.
[GN]
DUNKIN: Faces Kelledy Suit Over Deceptive Pricing on Mobile App
---------------------------------------------------------------
In the class action complaint, Martin Kelledy, individually and on
behalf of all other persons similarly situated v. Dunkin' Brands,
Inc. and Dunkin' Brand Group Inc., Case No. 1:23-cv-10626-RGS (D.
Mass., March 22, 2023), Kelledy seeks statutory damages,
compensatory damages, and injunctive relief to remediate the
Defendant's violations of the Massachusetts Consumer Protection Act
and Massachusetts common law, on behalf of consumers who were
systematically overcharged for purchases made through Dunkin's
operation of the Dunkin' Mobile Application (an online system for
Dunkin' store purchases) at certain Dunkin' store locations.
Dunkin' Brands, Inc is a corporation organized under the laws of
Delaware, with a principal place of business located at 130 Royall
Street, Canton, MA.[BN]
The Plaintiff is represented by:
Jeffrey G. Thorn, Esq.
THORN LAW PLLC
90 Canal Street, Suite 120
Boston, MA 02114
Telephone: (617) 835-6681
Facsimile: (844) 835-6681
E-mail: jgt@thornlawpllc.com
EARGO INC: Continues to Defend Consolidated Securities Class Suits
------------------------------------------------------------------
Eargo 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 23, 2023, that the Company continues to defend
itself from the consolidated securities class suits in the United
States District Court for the Northern District of California.
On October 6, 2021, putative shareholder Joseph Fazio filed a
purported securities class action against the Company and certain
of its officers, captioned Fazio v. Eargo, Inc., et al., No.
21-cv-07848 (N.D. Cal. Oct. 6, 2021) (the "Fazio Action").
Plaintiff Fazio alleges that certain of the Company's disclosures
about its business, operations, and prospects, including
reimbursement from third-party payors, violated federal securities
laws. Fazio voluntarily dismissed his complaint on December 6,
2021.
On November 4, 2021, putative shareholder Alden Chung filed a
purported class action lawsuit substantially similar to the Fazio
Action, captioned Chung v. Eargo, Inc., et al., No. 21-cv-08597
(N.D. Cal. Nov. 4, 2021) (the "Chung Action").
On November 10, 2021, putative shareholder IBEW Local 353 Pension
Plan filed a purported class action substantially similar to the
Fazio and Chung Actions and also asserting claims under the federal
securities laws against current and former members of the Company's
Board of Directors (the "Board of Directors") and the underwriters
of the Company's October 15, 2020 initial public offering of common
stock, captioned IBEW Local 353 Pension Plan v. Eargo, Inc., et
al., No. 21-cv-08747 (N.D. Cal. Nov. 10, 2021) (the "IBEW Action").
These class actions, which seek damages and other relief, were
filed in the United States District Court for the Northern District
of California. The Fazio and Chung Actions were brought purportedly
on behalf of a class of investors who purchased or otherwise
acquired Eargo securities between February 25, 2021 and September
22, 2021. The IBEW Local 353 Action was brought purportedly on
behalf of a class of investors who purchased or otherwise acquired:
(i) Eargo shares in or traceable to the Company's October 15, 2020
initial public offering of common stock; and/or (ii) shares of
Eargo common stock between October 15, 2020 and September 22, 2021.
On January 5, 2022, the court consolidated the foregoing class
actions (as consolidated, the "Securities Class Action") under the
caption In re Eargo, Inc. Securities Litigation, No.
21-cv-08597-CRB, and appointed IBEW Local 353 Pension Plan and
Xiaobin Cai as Lead Plaintiffs and Bernstein Litowitz Berger &
Grossmann LLP and Block & Leviton LLP as Lead Counsel.
On May 20, 2022, Lead Plaintiffs filed a consolidated amended
complaint, which purported to extend the class period through March
2, 2022. Defendants filed a motion to dismiss on July 29, 2022.
The Court granted the defendants' motion to dismiss on February 14,
2023. Plaintiffs filed a second amended complaint on March 16,
2023. Defendants plan to file a second motion to dismiss. The
Company intends to vigorously defend the Securities Class Action.
Eargo Inc. is an American hearing aid manufacturer based in San
Jose, California.
EARGO INC: Wolfe Suit Parties Paid Plaintiff's Counsel $249,500
---------------------------------------------------------------
Eargo 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 23, 2023, that the parties in the Wolfe
securities class suit agreed to pay $249,500 to Plaintiff Wolfe's
counsel on March 15, 2023.
On September 14, 2022, putative shareholder Adam C. Wolfe filed a
purposed securities class action against members of the Board of
Directors and the Company as nominal defendant, captioned Wolfe v.
Gormsen, et al., No. 2022-0812-MTZ (Del. Ch. Sept. 14, 2022) (the
"Wolfe Action").
Plaintiff Wolfe asserted, among other things, breaches of fiduciary
duty by the Board of Directors in connection with the Note
issuance, as well as that the Company's proxy statement omitted
material information concerning the Note issuance.
Plaintiff Wolfe sought injunctive relief and attorneys' fees and
costs, among other remedies.
Although the Company believes no supplemental disclosures were
required under applicable law, to alleviate the costs, risks and
uncertainties inherent in litigation, avoid any potential delay in
the Company's annual meeting of stockholders or the Rights Offering
and provide additional information to its stockholders, on October
3, 2022, the Company filed a Current Report on Form 8-K to
voluntarily supplement its proxy statement disclosures.
On October 17, 2022, Plaintiff Wolfe filed a notice of dismissal
with the court, which the court granted on October 24, 2022.
On March 15, 2023, the parties agreed that the Company would pay
$249,500 to Plaintiff Wolfe's counsel in full satisfaction of
Plaintiff Wolfe's claim for attorneys’ fees and expenses in the
Wolfe Action.
The court was not asked to review, and did not pass judgment on,
the payment of the attorneys' fees and expenses or their
reasonableness.
Eargo Inc. is an American hearing aid manufacturer based in San
Jose, California. [BN]
ENTRUST SOLUTIONS: Fails to Pay Overtime Wages, Lumpkins Alleges
----------------------------------------------------------------
JOE LUMPKINS, individually and on behalf of all others similarly
situated, Plaintiff v. ENTRUST SOLUTIONS GROUP, LLC f/k/a EN
ENGINEERING, LLC, Defendant, Case No. 1:23-cv-01824 (N.D. Il.,
March 23, 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 Lumpkins was employed by the Defendant as inspector.
ENTRUST SOLUTIONS GROUP, LLC f/k/a EN ENGINEERING, LLC provides
engineering and design, consulting, automation, integrity, and
GIS/data analytic services. [BN]
The Plaintiff is represented by:
Douglas M. Werman, Esq.
Maureen A. Salas, Esq.
WERMAN SALAS PC
77 W. Washington St., Suite 1402
Chicago, IL 60602
Telephone: (312) 419-1008
Email: dwerman@flsalaw.com
msalas@flsalaw.com
- and -
Michael A. Josephson, Esq.
Andrew W. Dunlap, Esq.
JOSEPHSON DUNLAP LLP
11 Greenway Plaza, Suite 3050
Houston, TX 77046
Telephone: (713) 352-1100
Facsimile: (713) 352-3300
Email: mjosephson@mybackwages.com
adunlap@mybackwages.com
tjones@mybackwages.com
- and -
Richard J. (Rex) Burch, Esq.
BRUCKNER BURCH PLLC
11 Greenway Plaza, Suite 3025
Houston, TX 77046
Telephone: (713) 877-8788
Facsimile: (713) 877-8065
Email: rburch@brucknerburch.com
EXPERIAN INFORMATION: Can Compel Arbitration in Alvarez FCRA Suit
-----------------------------------------------------------------
In the case, MANUEL ALVAREZ, SR., on behalf of himself and others
similarly situated, Plaintiff v. EXPERIAN INFORMATION SOLUTIONS,
INC., Defendant, Case No. 19-CV-03343 (JS) (JMW) (E.D.N.Y.),
Magistrate Judge James M. Wicks of the U.S. District Court for the
Eastern District of New York:
a. grants Experian's motion to compel arbitration; and
b. denies the Plaintiff's motion to strike based upon a new
argument raised by Experian on reply.
Alvarez commenced the consumer class action alleging that Experian
violated the Fair Credit Reporting Act, 15 U.S.C. Sections
1681-1681x ("FCRA"), New York Fair Credit Reporting Act ("NYFCRA"),
and NY Gen Bus. Law Sections 380 et seq., by improperly associating
customers with terrorists, narcotics traffickers, money launderers,
arms dealers, and other like-minded criminals.
The Plaintiff commenced the action alleging that Experian sold a
consumer credit report to his prospective loan lender that
inaccurately identified him as a person listed on the U.S. Treasury
Department's Office of Foreign Assets Control List ("OFAC List").
He further alleges that this error delayed approval of his mortgage
application, resulting in out-of-pocket costs including additional
rent payments, and other damages including harm to reputation and
emotional distress.
ConsumerInfo.com, Inc. ("ECS") is a corporate affiliate of
Experian, both wholly owned by Experian Holdings, Inc., and share
the same parent company Experian plc. ECS offers consumers various
services including "CreditWorks," which is a credit monitoring
service. On July 10, 2019, the Plaintiff consented to ECS' Terms of
Use ("TOU") when he signed up for CreditWorks for credit
monitoring. He then received a copy of his Experian credit report
through ECS. The TOU contains an arbitration provision.
The Plaintiff filed the Complaint on June 5, 2019, and Experian
filed its Answer on July 25, 2019. An initial conference was held,
and a Scheduling Order was entered on Oct. 8, 2019. The parties
then engaged in limited discovery related to the merits of the case
and class certification. On March 30, 2021, the Plaintiff moved to
compel nationwide class data from Experian. In the parties' April
2, 2021 Joint Proposed Scheduling Order, Experian noted its intent
to file a motion to compel arbitration, which motion was made on
April 4, 2021.
On April 5, 2021, the Court granted the Plaintiff's motion to
compel nationwide class data and ordered Experian to provide
responsive class data information on April 26, 2021. On April 20,
2021, the Court denied Experian's motion to compel arbitration
without prejudice to allow for discovery related to arbitration,
with a deadline to complete such discovery by June 19, 2021.
On April 22, 2021, Experian moved to stay discovery which the Court
granted, except as to the limited class-certification and
arbitration-related discovery that the Court previously ordered to
be completed. The Court noted the stay would expire upon the
Court's resolution of the motion to compel arbitration and, if the
motion is denied, the Court was to schedule an immediate conference
to finalize a schedule for any remaining merits and
class-certification discovery.
The parties subsequently decided to pursue mediation and moved to
stay all proceedings and deadlines but preserved their respective
arguments regarding Experian's anticipated motion to compel
arbitration. The Court granted the stay. Once mediation proved
unsuccessful, the Court entered a briefing schedule on Experian's
motion to compel arbitration.
On March 1, 2022, Experian then filed its motion to compel
arbitration and stay proceedings pursuant to the Federal
Arbitration Act ("FAA") 9 U.S.C. Sections 3, 4, which the Plaintiff
opposes. The Plaintiff subsequently filed a motion to strike a new
argument raised by Experian on reply, which Experian opposes. The
parties subsequently filed notices of supplemental authority in
support of their respective positions which have been considered by
the Court.
Judge Wicks first examines the motion to strike. The Plaintiff
seeks to strike Experian's argument, raised by Experian for the
first time in its reply in support of its motion to compel
arbitration, that Experian may enforce the Arbitration Agreement
under a third-party beneficiary theory. The Plaintiff's opposition
to the motion to compel arbitration affirmatively addressed the
third-party beneficiary related argument. Thus, Experian, in its
reply, was allowed to address this newly raised argument. The
Plaintiff's motion to strike is therefore denied.
The Plaintiff also asks the Court to disregard Experian's response
to his motion to strike as untimely filed. Judge Wicks declines to
do so. He says regardless of whether he disregards Experian's
opposition to the motion to strike as untimely, Experian had
already addressed the Plaintiff's contention that Experian cannot
argue on reply that it was an intended third party-beneficiary.
Judge Wicks now turns to the motion to compel arbitration. He finds
that a valid arbitration agreement exists between the parties. He
says there is no reasonable basis to find that the Plaintiff has
not assented to arbitration with Experian. Even if Experian could
not enforce the Arbitration Agreement as a party, under a
third-party beneficiary theory, Experian may do so.
The next question is whether the dispute is within the scope of
what the parties agreed to arbitrate. Judge Wicks finds that the
questions of arbitrability raised by the parties are properly for
the arbitrator and not the Court, just as the parties agreed. Thus,
notwithstanding the Plaintiff's protests that his dispute is not
encompassed by the Arbitration Agreement, Judge Wicks' inquiry can
go no further.
Next, the parties sharply dispute whether through its conduct in
litigation, Experian has waived its right to pursue arbitration.
The parties also quarrel over whether this question is properly for
the Court or for the arbitrator.
Judge Wicks does not find that Experian waived its right to
arbitration. He finds that Experian's affirmative conduct to date
did not knowingly relinquish the right to arbitrate by acting
inconsistently with that right. Experian immediately moved to
enforce its right to arbitrate once it learned of the Arbitration
Agreement, and there was limited pre-trial activity in that short
window of time.
For these reasons, Judge Wicks grants Experian's motion to compel
arbitration and denies the Plaintiff's motion to strike. As a
result of granting Experian's motion to compel arbitration, the
action is stayed pending arbitration.
A full-text copy of the Court's March 15, 2023 Memorandum & Order
is available at https://tinyurl.com/yun425rh from Leagle.com.
Daniel Zemel, Esq., Elizabeth Easley Apostola, Esq., Zemel Law LLC,
Paterson, NJ, Attorneys for the Plaintiff.
James A. Francis, Esq. -- jfrancis@consumerlawfirm.com -- John
Soumilas, Esq. -- jsoumilas@consumerlawfirm.com -- Lauren Kw
Brennan, Esq. -- lbrennan@consumerlawfirm.com -- Edward Skipton,
Esq., Jordan M. Sartell, Esq. -- jsartell@consumerlawfirm.com --
Francis Mailman Soumilas P.C., Philadelphia, PA, Attorneys for the
Plaintiff.
Kerianne Tobitsch, Esq. -- ktobitsch@jonesday.com -- Jones Day, New
York, NY, Attorney for Experian.
Kerry Cordill Fowler, Esq. -- kcfowler@jonesday.com -- Jones Day,
Los Angeles, CA, Attorney for Experian.
F.J. DESIGNS INC: Lawal Files ADA Suit in S.D. New York
-------------------------------------------------------
A class action lawsuit has been filed against F.J. Designs, Inc.
The case is styled as Rafia Lawal, on behalf of herself and all
others similarly situated v. F.J. Designs, Inc., Case No.
1:23-cv-02477 (S.D.N.Y., March 23, 2023).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
FJ Designs -- https://fj-designs.com/ -- is a brand of a unique and
hand made jewelry.[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
FITLIFE BRANDS: Discloses Web Users' Personal Info, Licea Alleges
-----------------------------------------------------------------
In the class action complaint, Jose Licea, individually and on
behalf of all others similarly situated, v. Fitlife Brands Inc., a
Nevada corporation d/b/a/ isatori.com, Case No.
3:23-cv-00509-RSH-DDL (S.D. Cal., March 23, 2023), Licea alleges
that the Defendant violated the Video Privacy Protection Act.
Allegedly, whenever someone watches a video on
https://www.isatori.com/, the Defendant secretly reports all the
details to Meta, Inc. and its subsidiary, Facebook. These details
include the website visitors' personally identifiable information,
the titles watched, and more. Among other things, the Defendant
knowingly permits isatori.com to host the Facebook tracking Pixel
which transmits numerous distinct events to Facebook, says the
suit.
Fitlife Brands Inc. is a for-profit corporation with its principal
place of business in Omaha, NE. It owns, operates, and/or controls
a variety of websites and offers multiple videos for consumers to
view and play. Its iSatori brand, for which the website is
maintained, is widely available throughout the U.S. [BN]
The Plaintiff is represented by:
Scott J. Ferrell, Esq.
PACIFIC TRIAL ATTORNEYS: A Professional Corporation
4100 Newport Place Drive, Ste. 800
Newport Beach, CA 92660
Telephone: (949) 706-6464
Facsimile: (949) 706-6469
E-mail: sferrell@pacifictrialattorneys.com
FLORIDA HEALTH: Suit Removed to M.D. Florida
--------------------------------------------
The case styled as John Doe, individually and on behalf of others
similarly situated v. Florida Health Sciences Center, Inc. doing
business as: Tampa General Hospital, Case No. 23-CA-000497 was
removed from the Thirteenth Judicial Circuit, to the U.S. District
Court for the Middle District of Florida on March 1, 2023.
The District Court Clerk assigned Case No. 8:23-cv-00456-SDM-CPT to
the proceeding.
The nature of suit is state as Other Contract.
Florida Health Sciences Center, Inc. doing business as Tampa
General Hospital -- https://www.tgh.org/ -- operates as a
non-profit Hospital.[BN]
The Plaintiff is represented by:
Nicholas A. Colella, Esq.
LYNCH CARPENTER, LLP
1133 Penn Ave, 5th Floor
Pittsburgh, PA 15222
Phone: (412) 322-9243
Email: nickc@lcllp.com
The Defendant is represented by:
Jon Taylor Gatto, Esq.
Austin Marshall Eason, Esq.
David Matthew Allen, Esq.
Joseph Warren Swanson, Esq.
CARLTON FIELDS, PA
4221 W Boy Scout Blvd, Ste. 1000
Tampa, FL 33607
Phone: (813) 229-4141
Fax: (813) 229-4133
Email: jgatto@carltonfields.com
aeason@carltonfields.com
mallen@carltonfields.com
jswanson@carltonfields.com
FLOWERS FOODS: Loses Bid to Decertify FLSA Class in Ludlow Suit
---------------------------------------------------------------
In the case, DANIEL LUDLOW, individually and on behalf of others
similarly situated; and WILLIAM LANCASTER, individually and on
behalf of others similarly situated, Plaintiffs v. FLOWERS FOODS,
INC., a Georgia corporation; FLOWERS BAKERIES, LLC, a Georgia
limited liability company; and FLOWERS FINANCE, LLC, a limited
liability company, Defendants, Case No. 18cv1190-JO-JLB (S.D.
Cal.), Judge Jinsook Ohta of the U.S. District Court for the
Southern District of California denies:
a. the Defendants' motion for decertification of the FLSA
class; and
b. the Plaintiffs' motion to seal exhibits submitted in
support of their opposition to the decertification motion.
The Plaintiffs are current and former delivery workers alleging
that the Defendants intentionally misclassified them as independent
contractors instead of employees. They claim that the Defendants
did so in order to avoid paying them overtime and providing them
with other employment benefits. The Plaintiffs filed a wage and
hour complaint asserting a collective claim under the Fair Labor
Standards Act ("FLSA") and class action claims under the California
Labor Code.
Flowers Foods is the national bakery company behind popular brands
such as Wonder Bread, Nature's Own, and Dave's Killer Bread. It
describes itself as "America's premier baker" that "produces and
markets bakery products" in the "retail and food service" market.
Flowers Foods claims in its SEC filings that it is the "second
largest producer and marketer of packaged bakery foods in the US"
and "operates in the highly competitive fresh bakery market." Its
customers are retail and foodservice locations such as Sonic and
Walmart With sales of $3.9 billion in 2017, Flowers Foods generates
revenue from sales of bakery products to its retail and foodservice
customers. As such, one of Flowers Foods' key business functions is
the distribution and delivery of these packaged bakery goods to its
customers.
Flowers Foods engages the services of delivery workers by having
its operating subsidiaries enter into "Distributor Agreements" with
them. It is the sole parent company of Defendant Flowers Bakeries,
LLC, which in turn operates as the sole parent company of numerous
non-party operating subsidiaries located throughout California and
the United States. The local operating subsidiaries enter into
standard and substantially identical Distributor Agreements with
all of Flowers Foods' delivery workers. Under these agreements,
these so-called "distributors" such as the Plaintiffs contracted to
deliver the bakery products from the Defendants' warehouses to the
retail and foodservice customer locations.
The Distributor Agreements set forth the working relationship
between the delivery worker and Defendants. They also describe how
the distributor purportedly earns money with these territory
rights. They also set forth the quality standards that distributors
must meet as part of their job requirements.
The Distributor Agreement sets an indefinite duration for the
working relationship between the distributor and Defendants. Under
the Distributor Agreement's terms, the distributor relationship
continues unless the distributor sells the territory, the Flowers
Foods subsidiary ceases to use distributors in a territory for
"business reasons," or the subsidiary terminates as a result of the
distributor engaging in certain enumerated activities deemed
non-curable or repeated curable breaches.
On Feb. 21, 2019, the Plaintiffs filed their First Amended
Complaint alleging a FLSA claim for failure to pay overtime on
behalf of themselves and the FLSA collective class. They asserted a
FLSA collective class defined as "All persons who worked pursuant
to a 'Distributor Agreement' or similar arrangement with Flowers
Food, Inc., or one of its subsidiaries, in California that were
classified as '`independent contractors' during the period
commencing three years prior to the commencement of this action
through the close of the Court-determined opt-in period." Over one
hundred plaintiffs have filed opt-in forms to the FLSA claim (the
"opt-in Plaintiffs").
On March 29, 2022, the Defendants filed a motion for
decertification of the FLSA collective action. In connection with
this briefing, the Plaintiffs filed a motion to seal exhibits
submitted in support of their opposition to the decertification
motion.
The opt-in Plaintiffs brought a collective action under the FLSA
alleging the Defendants failed to pay distributors overtime based
on the alleged misclassification as independent contractors. The
Defendants moved to decertify the collective action on the grounds
that the opt-in Plaintiffs are not "similarly situated" under the
FLSA's joint employer test or employee-independent contractor
tests.
From the evidence, Judge Ohta holds that it appears Flowers Foods
and its subsidiaries did or did not jointly control each member of
the collective class to the same degree. Because the proposed
collective class of distributors shares these similar issues of law
or fact material to the disposition of the joint employer inquiry,
she concludes that decertification is not warranted.
Having determined that the opt-in Plaintiffs are similarly situated
with regard to the joint employer question, Judge Ohta next turns
to the Defendants' argument that an individualized inquiry would be
necessary to determine whether opt-in Plaintiffs are employees
rather than independent contractors under the FLSA. She finds that
because the common corporate filings evidence the nature of Flowers
Foods' business and the common Distributor Agreement shows what
work the distributors perform, they provide common, class-wide
evidence regarding the opt-in Plaintiffs' role in the Defendants'
overall business structure. Accordingly, she denies the Defendants'
motion for decertification of the FLSA action.
The Plaintiffs filed a motion to seal exhibits submitted in
connection with their opposition to the Defendants' motion for
decertification, on the grounds that the exhibits contain material
previously designated by the Defendants as "CONFIDENTIAL" under the
terms of the Protective Order. They do not contend that these
exhibits are confidential nor identify any specific harm that would
arise from their disclosure. They seek to seal the exhibits only on
the grounds that they had been designated "CONFIDENTIAL" pursuant
to the Protective Order.
Judge Ohta holds that this is insufficient to establish the
"compelling reasons" required to justify sealing. Because the
Plaintiffs have not met their burden to demonstrate any compelling
reasons to seal these exhibits, she denies the motion to seal
without prejudice to refiling.
A full-text copy of the Court's March 15, 2023 Order is available
at https://tinyurl.com/2p8t8mmv from Leagle.com.
GC BROTHERS: Fails to Pay Proper Wages, Kepler Suit Alleges
-----------------------------------------------------------
ANDREA KEPLER, individually and on behalf of all others similarly
situated, Plaintiffs vs. GC BROTHERS ENTERTAINMENT, LLC dba THE
PALMS GENTLEMEN'S CLUB; GEORGE CATALOIU; DOE MANAGERS 1- 3; and
DOES 4-10, Defendants, Case No. 8:23-cv-00536 (C.D., Cal., March
23, 2023) is an action against the Defendants for failure to pay
minimum wages, overtime compensation, authorize and permit meal and
rest periods, provide accurate wage statements, and reimburse
necessary business expenses.
Plaintiff Kepler was employed by the Defendants as dancer.
GC BROTHERS ENTERTAINMENT, LLC operates an adult-oriented
entertainment facility located at Signal Hill, California, known as
THE PALMS GENTLEMEN'S CLUB. [BN]
The Plaintiff is represented by:
John P. Kristensen, Esq.
Justice D. Turner, Esq.
CARPENTER & ZUCKERMAN
8827 W. Olympic Boulevard
Beverly Hills, CA 90211
8827 W. Olympic Blvd
Telephone: (310) 273-1230
Email: kristensen@cz.law
jturner@cz.law
kristensenteam@cz.law
GEICO GENERAL: Lanzillotta Breach Suit Certified as Class Action
----------------------------------------------------------------
Andrew G. Simpson of Insurance Journal reports that U.S. District
Court Judge Dora L. Irizarry in federal court in Eastern New York
has certified the class alleging breach of contract against Geico
General for shortchanging claimants who earn more than $2,000 a
month.
Geico General Insurance Co. must face a class action suit alleging
that it has been underpaying benefits to its insureds injured in
automobile accidents.
The lead plaintiff in the case, Mary Lanzillotta, who was injured
in a car accident, claims she was entitled to $55,000 in insurance
coverage but was provided only $51,445 in benefits by Geico
General.
The plaintiff contends that the insurer utilizes an improper
formula for calculating basic economic loss and first party
benefits, resulting in "unlawful deductions and premature policy
exhaustion." The complaint maintains that the insurer has used the
same improper formula for all policyholders in the class, who are
identified in part as insureds numbering "hundreds if not
thousands" who have filed similar claims since March 2013.
The court said the resulting effect establishes an injury in fact
and the class definition captures others who suffered this injury.
Lanzillotta submitted a claim for first party benefits. Geico
General issued a claim payment of $51,445 and advised her that she
had exhausted her basic economic loss and med pay coverages of
$55,000. Geico General reached this conclusion by accounting for
$2,500 in lost earnings per month, and then subtracting from the
total $55,000 in basic economic loss and med pay, 20% of such lost
earnings ($500) for the seven months that she received first party
wage benefits, for a total deduction of $3,500.
The complaint asserts that Geico General, instead, should have
accounted for only $2,000 in lost earnings per month and not
applied the 20% deduction. This allegedly improper calculation of
first party benefits deprived her of $3,500 in basic economic loss
benefits to which she she says she was entitled.
State law defines basic economic loss as the amount of coverage for
medical and wage benefits up to $50,000. It further defines wages
as loss of earnings from work which the insured would have earned
if she had not been injured, capped at $2,000 per month. First
party benefits, on the other hand, are the amount of medical and
wage benefits a person is entitled to be reimbursed from the basic
economic loss coverage limits for wages by more than the $2,000
cap. Lanzillotta earned more than $2,000 per month.
The suit alleges that Geico General has improperly reduced the
basic economic loss coverage limits for wages by more than $2,000
and as a result insureds earning more than $2,000 a month have been
denied full first party benefits because of the premature
exhaustion of basic economic loss.
The suit seeks damages, restitution, and attorneys' fees.
GEICO General, in part, argued that the class should not be
certified because the plaintiff is atypical. But the court rejected
that contention, finding that the claims "not only arise from the
same course of events, but rest on similar legal arguments
regarding the premature exhaustion of insurance policies through
GEICO General's basic economic loss reduction formula."
The final court-approved definition limits the class to those GEICO
General policyholders who earned gross monthly wages in excess of
$2,000 per month at any point during the period in which they were
covered, who have submitted first party benefit claims to and
received payment from GEICO General that included claims for lost
wages, and which, after paying at least one month of first party
wage benefits, GEICO General claimed their coverage was fully
exhausted on or after March 13, 2013.
While certifying this class, the judge denied extending the class
to violations of the New York no-fault statute. In addition, she
dismissed the claims as to all the other defendants in the GECO
family including Government Employees Insurance Co., GEICO
Indemnity Co., GEICO Casualty Co., GEICO Advantage Insurance Co.,
GEICO Choice Insurance Co., GEICO Secure Insurance Co., GEICO
County Mutual Insurance Co., and GEICO Insurance Agency Inc. for
lack of standing. [GN]
GEICO GENERAL: Ventrice-Pearson's Class Settlement Wins Final Nod
-----------------------------------------------------------------
In the case, In Re GEICO General Insurance Company, Case No.
19-cv-03768-HSG (N.D. Cal.), Judge Haywood S. Gilliam, Jr., of the
U.S. District Court for the Northern District of California:
a. grants the Plaintiffs' motion final approval of class
action settlement; and
b. grants in part and denies in part the Plaintiffs' motion
for attorneys' fees, costs, and service award.
The Plaintiffs bring the consolidated class action against
Defendant GEICO General Insurance Company, alleging that Defendant
breached the terms of private passenger auto insurance policies
issued to them and the similarly situated insureds by failing to
properly include or calculate sales tax (as to leased vehicles) and
regulatory fees (as to all vehicles). They allege that the
Defendant's insurance policies require payment of actual cash value
("ACV") upon the total loss of a covered auto and define ACV as the
"replacement cost" of the auto, less depreciation.
The Plaintiffs argue that (1) the insurance policies require the
Defendant to include sales tax on the cost to purchase a
replacement vehicle when paying leased-vehicle claims; and (2)
under Cal. Ins. Code Section 2695.8(b)(1), registration fees for
the "remaining term of the loss vehicle's current registration"
should be calculated on an end-of-month (rather than, as the
Defendant contends, a beginning-of-month) basis or, alternatively,
on a daily (not monthly) basis.
Named Plaintiff Cindy Ventrice-Pearson filed a claim on behalf of
herself and all others similarly situated in June 2019. Named
Plaintiff Poonam Subbaiah filed her claim in July 2019, and Named
Plaintiff Kristin Perez filed her claim in October 2020. The Perez
and Subbaiah cases have since been transferred to this Court and
consolidated with the Ventrice-Pearson case for purposes of
settlement.
Over the course of two years, the parties engaged in motion
practice; extensive production and review of documents and
class-wide data; and multiple depositions. After multiple mediation
sessions, the parties reached a settlement. The Court granted
preliminary approval of the settlement on July 28, 2022.
The Settlement Class is defined as:
Regulatory Fees Class: All individual insureds under an
Automobile Insurance Policy covering a vehicle with
private-passenger auto physical damage coverage with comprehensive
or collision coverage, whose claim was adjusted under Section III
of the GEICO's Automobile Insurance Policy (i.e. comprehensive or
collision coverage) during the Class Period, that was determined by
GEICO to be a covered claim and where GEICO determined that the
vehicle was a total loss and did not pay to repair the damage to
the vehicle and where the insured did not retain the salvage
vehicle.
Sales Tax Class: All individual insureds under an Automobile
Insurance Policy covering a leased vehicle with private-passenger
auto physical damage coverage with comprehensive or collision
coverage, who's claim was adjusted under Section III of the GEICO's
Automobile Insurance Policy (i.e. comprehensive or collision
coverage), during the Class Period, that was determined by GEICO to
be a covered claim and where GEICO determined that the vehicle was
a total loss and did not pay to repair the damage to the vehicle,
where the insured did not retain the total-loss vehicle and where
GEICO did not include ACV Sales Tax in the Total Loss Claim
Payment(s).
The Defendant has agreed to: (1) upon submission of a valid claim
by a Regulatory Fees Class member, pay $6.88, representing one-half
of an average monthly payment in regulatory fees, and (2) upon
submission of a valid claim by a Sales Tax Class member, pay $6.88
in regulatory fees plus the sales tax at the applicable state and
county rate at the time of loss to all insureds. Claims will be
paid on a claims-made basis. Additionally, absent a clarifying
change in statutory law or a contrary opinion by the Ninth Circuit
or California appellate court, in the future, the Defendant will,
for total loss covered vehicles, (a) pay sales tax at the
applicable rate to leased-vehicle insureds and (b) calculate and
pay regulatory fees as a daily proration, rather than subtracting
the monthly amount at the beginning of each month.
Under the settlement agreement, all class members will release any
and all known and unknown claims, rights, actions, suits or causes
of action of whatever kind or nature, whether ex contractu or ex
delicto, statutory, common law or equitable, including but not
limited to breach of contract, bad faith or extracontractual
claims, and claims for punitive or exemplary damages, or
prejudgment or postjudgment interest, arising from or relating in
any way to GEICO's failure to pay sufficient sales tax and/or
regulatory fees to Plaintiffs and all Settlement Class Members with
respect to any Covered Total Loss Claim during the Class Period
under an Automobile Insurance Policy. Released Claims do not
include any claims, actions, or causes of action alleging that
GEICO failed to properly calculate the base or adjusted value of
total loss vehicles except to the extent that such claims, actions,
or causes of action relate to failure to pay sufficient sales tax
and/or regulatory fees.
KCC, a third-party settlement administrator, mailed notice to all
reasonably identifiable class members on two occasions, with
pre-filled, detachable, and postage-prepaid claim forms. To receive
a Claim Payment, the Settlement Class member needed to submit a
claim form, declaring that the pre-filled Claim information is
correct and that they were a GEICO insured who suffered a
total-loss during the Settlement Class period who did not receive
ACV Sales Tax and/or full Regulatory Fees.
The Plaintiffs seek service awards of $15,000 for Plaintiff
Subbaiah, $10,000 for Plaintiff Ventrice-Pearson, and $5,000 for
Plaintiff Perez, as allowed by the Settlement Agreement. Any
service award payments are separate from and in addition to the
payments available to the Settlement Class Members and will not
impact the amount owed to the Settlement Class Members.
In its unopposed motion and consistent with the Settlement
Agreement, the Class Counsel asks the Court to approve an award
$3,852,553.39 in attorneys' fees and $47,446.61 in costs, as
allowed by the Settlement Agreement. It also seeks service awards
for the named Plaintiffs: $15,000 for Plaintiff Subbaiah, $10,000
for Plaintiff Ventrice-Pearson, and $5,000 for Plaintiff Perez,
After reviewing the settlement, Judge Gilliam finds that the
settlement agreement is fair, adequate, and reasonable, and that
the settlement Class Members received adequate notice. Accordingly,
he grants the Plaintiffs' motion for final approval of the class
action settlement.
However, having reviewed the billing records, Judge Gilliam finds
that the base lodestar calculation contains some inefficient and
unreasonable time. He also has reservations about awarding fees for
motions that amount to inter-firm rivalry that arose before
separate cases were consolidated. Although undoubtedly valuable to
the firms involved, it is hard to see how battles between the
attorneys now collectively asking for fees benefited the Class.
Because of the described inefficiencies, Judge Gilliam applies a 5%
reduction to the base lodestar. Based purely on the excellent
outcome for the class and the high average recovery, he applies a
more modest multiplier than requested of 1.2, which brings the fee
award to $2,583,293.81. He finds the adjusted amount reasonable
given the outcome for the class and the high average recovery.
Regarding the Plaintiffs' counsel's costs, the Plaintiffs' counsel
has provided breakdowns of expenses and states that it incurred
$47,446.61 in costs. Judge Gilliam finds that the requested
expenses are reasonable and grants the request for costs in the
amount of $47,446.61. He accordingly awards $2,583,293.81 in
attorneys' fees and $47,446.61 in costs, for a total of
$2,630,740.42.
Lastly, while Judge Gilliam is persuaded that the named Plaintiffs,
particularly Plaintiff Subbaiah, contributed meaningfully to the
case, he says $15,000 is "quite high" for a service award. Thus, he
finds that awards of $10,000 to Plaintiff Subbaiah, $7,500 to
Plaintiff Ventrice-Pearson, and $5,000 to Plaintiff Perez are
adequate and appropriate to compensate them for their efforts.
Accordingly, Judge Gilliam grants the motion for final approval of
class action settlement, and grants in part and denies in part the
motion for attorneys' fees, costs, and incentive award. He awards
$2,583,293.81 in attorneys' fees, $47,446.61 in costs, and a
$22,500 service award to the named Plaintiffs.
The parties and settlement administrator are directed to implement
the Final Order and the settlement agreement in accordance with the
terms of the settlement agreement. They are further directed to
file a short stipulated final judgment of two pages or less within
seven days from the date of the Order. The judgment need not, and
should not, repeat the analysis in the Order.
A full-text copy of the Court's March 15, 2023 Order is available
at https://tinyurl.com/4t62swmj from Leagle.com.
GENERAL MOTORS: Court Certifies Chevy Shake Suit as Class Action
----------------------------------------------------------------
Jason Stoogenke of WSOC – TV reports that a judge has agreed to
make a lawsuit filed in the case a class action, which means all
drivers who bought certain vehicles will be included -- not just
the people who sued.
There's a major development in a lawsuit that involves a story
Action 9's been investigating since 2019.
Jason Stoogenke was one of the first reporters in the country to
report on the so-called "Chevy Shake." Since then, hundreds of
drivers have complained to him -- more than almost any other
consumer issue.
So far, more than 300 people have contacted Stoogenke from 30
states and Canada, many of whom have sent him videos. They said
they drive GM models and that they shake all of a sudden -- they
say at times, they shake uncontrollably.
Plaintiffs sued GM in 2019. They officially asked the court to make
the suit a class action early last year. Now, more than a year
later, the judge has said yes.
The class would include anyone who bought certain vehicles new from
an authorized GM dealer before March 1, 2019.
2015-2019 Chevrolet Silverado
2017-2019 Chevrolet Colorado
2015-2019 Chevrolet Corvette
2016-2019 Chevrolet Camaro
2015-2019 Cadillac Escalade and Escalade ESV
2016-2019 Cadillac ATS, ATS-V, CTS, CT6, and CTS-V
2015-2019 GMC Sierra, Yukon, Yukon XL, and Yukon Denali XL
2017-2019 GMC Canyon
The lawsuit only covers vehicles up until 2019 because that was the
year it was filed. For drivers who bought newer GM models with the
same vibration issue, there's a class action lawsuit already filed
for those. It covers 2019 to 2022 models, and the judge hasn't
decided yet whether to say yes or no to it being a class action
since its a newer case.
Here are the models included in that case:
2019 Chevy Corvette
2019 Cadillac ATS, ATS-V, CTS, CT6, and CTS-V
2019-2022 Chevy Camaro, Colorado, and Silverado
2019-2022 GMC Canyon and Sierra [GN]
GETAROUND INC: Kline Telemarketing Suit Removed to N.D. Fla.
------------------------------------------------------------
The case styled MICHELLE KLINE, individually and on behalf of all
others similarly situated, Plaintiff v. GETAROUND, INC. Defendant,
Case No. 23-CA-98, was removed from the First Judicial Circuit
Court in and for Santa Rosa County, Florida, to the United States
District Court for the Northern District of Florida on March 17,
2023.
The Clerk of Court for the Northern District of Florida assigned
Case No. 3:23-cv-06113-MCR-ZCB to the proceeding.
The Plaintiff filed this complaint on February 14, 2023 alleging
purported claims against Defendant under the federal Telephone
Consumer Protection Act and its Florida analog, the Florida
Telephone Solicitation Act.
Getaround, Inc. is an online car sharing or peer-to-peer carsharing
service.[BN]
The Defendant is represented by:
Yaniv Adar, Esq.
MARK MIGDAL & HAYDEN
80 S.W. 8th Street, Suite 1999
Miami, FL 33130
Telephone: (305) 374-0440
E-mail: yaniv@markmigdal.com
GIBRALTAR HOSPITALITY: Vasquez FLSA Suit Removed to D. Nev.
-----------------------------------------------------------
The case styled DOUGLAS VASQUEZ, individually and on behalf of all
others similarly situated; Plaintiff v. GIBRALTAR HOSPITALITY
SERVICES LLC d/b/a and a/k/a 7TH AND CARSON; EMPLOYEE(S)/AGENT(S)
DOES 1-10; and ROE CORPORATIONS 11-20; inclusive, Defendants, Case
No. A-23-864620-C, was removed from the Eighth Judicial District
Court of the State of Nevada to the United States District Court
for the District of Nevada on March 23, 2023.
The Clerk of Court for the District of Nevada assigned Case No.
2:23-cv-00441 to the proceeding.
The Plaintiff alleges claims under the Fair Labor Standards Act for
the alleged confiscation of tips and for retaliation.
Gibraltar Hospitality Services LLC engaged in the hospitality
industry.[BN]
The Defendant is represented by:
David B. Dornak, Esq.
Allison L. Kheel, Esq.
FISHER & PHILLIPS LLP
300 S. Fourth Street, Suite 1500
Las Vegas, NV 89101
Telephone: (702) 252-3131
E-mail: ddornak@fisherphillips.com
akheel@fisherphillips.com
GOHEALTH INC: No Trial Date Set for Securities Class Suit
---------------------------------------------------------
GoHealth 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 23, 2023, that the United States
District Court for the Northern District of Illinois has not set
trial date yet for the securities class suit filed in Illinois.
In September 2020, three purported securities class action
complaints were filed in the United States District Court for the
Northern District of Illinois against the Company, certain of its
officers and directors, and certain underwriters, private equity
firms, and investment vehicles alleging that the Registration
Statement filed in connection with the IPO was negligently prepared
and, as a result, contained untrue statements of material fact,
omitted material facts necessary to make the statements contained
therein not misleading, and failed to make necessary disclosures
required under the rules and regulations governing its preparation,
including the Securities Act of 1933 (the "Securities Class
Action").
Compensatory damages and reasonable costs and expenses incurred in
the Securities Class Action were sought by the plaintiffs.
On December 10, 2020, the court in the earliest filed action
consolidated the three complaints, appointed lead plaintiffs and
lead counsel for the consolidated action, and captioned the
consolidated action "In re GoHealth, Inc. Securities Litigation."
On February 25, 2021, lead plaintiffs filed a consolidated
complaint.
On April 26, 2021, the Company and officer and director defendants
filed a motion to dismiss the complaint.
On April 5, 2022, that motion was denied.
On May 31, 2022, the Company and officer and director defendants
filed an answer to the consolidated complaint and, on June 21,
2022, they filed an amended answer.
On September 23, 2022, lead plaintiffs filed a motion for class
certification, which remains pending.
The court has not yet set a trial date.
GoHealth, Inc. is a leading health insurance marketplace whose
mission is to improve access to healthcare in America. The
company's proprietary technology platform leverages modern
machine-learning algorithms powered by nearly two decades of
insurance behavioral data optimize the process for helping
individuals find the best health insurance plan for their specific
needs. The company is based in Chicago, Illinois.
GOODWILL INDUSTRIES: Ishoufar Files Suit in Cal. Super. Ct.
-----------------------------------------------------------
A class action lawsuit has been filed against Goodwill Industries
of San Joaquin Valley, Inc. The case is styled as Jaklin Ishoufar,
on behalf of herself and all others similarly situated v. Goodwill
Industries of San Joaquin Valley, Inc., Case No.
STK-CV-UOE-2023-0002777 (Cal. Super. Ct., San Joaquin Cty., March
22, 2023).
The case type is stated as "Unlimited Civil Other Employment."
Goodwill Industries of San Joaquin Valley, Inc. --
http://www.goodwill-sjv.org/-- operates as a non-profit
organization. The Organization provides programs and services to
help with job training and placement, and serves people with
disabilities.[BN]
The Plaintiff is represented by:
Greg Lander, Esq.
5670 Wilshire Blvd., Suite 1460
Los Angeles, CA 90036
Phone: (323) 549-9100
Fax: (323) 549-0101
GRAVITRON LLC: Miller Files ADA Suit in W.D. New York
-----------------------------------------------------
A class action lawsuit has been filed against Gravitron, LLC. The
case is styled as Kimberly Miller, on behalf of herself and all
other persons similarly situated v. Gravitron, LLC, Case No.
1:23-cv-00264 (W.D.N.Y., March 23, 2023).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Gravitron, LLC is a wholesale glass manufacturer in the cannabis
and lifestyle industry.[BN]
The Plaintiff is represented by:
Jeffrey M. Gottlieb, Esq.
GOTTLIEB & ASSOCIATES
150 E. 18th Street, Suite PHR
New York, NY 10003
Phone: (212) 228-9795
Fax: (212) 982-6284
Email: jeffrey@gottlieb.legal
- and -
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
GROWCO INC: Class Settlement in Paulson Suit Wins Final Approval
----------------------------------------------------------------
In the case, JOHN PAULSON, Individually and on Behalf of all Others
Similarly Situated, Plaintiff v. JOHN R. McKOWEN, WAYNE HARDING,
and TIMOTHY BEALL, Defendants, Civil Case No. 19-cv-02639-PAB-NYW
(D. Colo.), Judge Philip A. Brimmer of the U.S. District Court for
the District of Colorado grants the Plaintiff's Motion for Final
Approval of the Settlement and the Plaintiffs' Motion for an Award
of Attorneys' Fees, Incentive Award, and Reimbursement of
Litigation Expenses.
The Plaintiff brings a securities class action against the
Defendants. His amended complaint alleges that Individual
Defendants John R. McKowen, Wayne Harding, and Timothy Beall were
officers of Two Rivers Water and Farming Co.
The Plaintiff alleges that Two Rivers and McKowen formed GrowCo,
Inc. to capitalize on the burgeoning marijuana industry in
Colorado. To support their operations, the Defendants offered
GrowCo securities to investors. With the Offerings, they provided
sales presentations, memoranda of terms, exchange note purchase
agreements, exchange agreements, investor questionnaires, and other
documents which purported to make material disclosures to investors
about GrowCo and the Securities Offerings.
The Plaintiff alleges that the Offering documents omitted material
information about McKowen, including a 1987 disciplinary action,
fine, and suspension with the National Association of Securities
Dealers, a 1995 bankruptcy, and a 1992 default judgment in
connection with a complaint before the Indiana Securities
division.
The Defendants dispute these allegations and deny liability for the
claims. McKowen moved to dismiss the complaint on the basis that
the information underlying the allegations against him concerned
the distant past, was not required to be disclosed, and was not
material to investors' decisions to purchase GrowCo securities.
This motion was pending when the parties and the Defendants'
insurance carrier, Starstone Specialty Casualty Insurance Co.,
agreed to engage in mediation before retired Denver District Court
Judge William Meyer.
The parties ultimately reached a settlement in August 2020, and on
Oct. 9, 2020, the Plaintiff filed an unopposed motion for
preliminary approval of the settlement, approval of the notice to
the class, preliminary certification of the class for the purposes
of settlement, appointment of class counsel, and the scheduling of
a fairness hearing.
On Jan. 25, 2021, the assigned magistrate judge granted a motion to
withdraw by the counsel for Two Rivers and issued an order to show
cause why she should not impose sanctions against Two Rivers for
failure to defend based on its failure to hire counsel to represent
it. On Feb. 24, 2021, the Court entered an order informing the
parties that, because granting the motion for preliminary approval
of the class action settlement would trigger proceedings that
necessitated Two Rivers' participation, through the counsel, it
would not rule on the motion for preliminary approval until the
counsel entered an appearance on behalf of Two Rivers. On March 10,
2021, the Court entered an order notifying the parties that it
would deny the motion for preliminary approval without prejudice if
Two Rivers did not enter an appearance on March 16, 2021.
On April 6, 2021, the Plaintiff filed a motion to dismiss Two
Rivers as a party. On June 29, 2021, the Court granted the
Plaintiff's motion to dismiss Two Rivers without prejudice. It also
granted plaintiff leave to file a revised motion for preliminary
approval of the class action settlement considering Two Rivers'
dismissal, which the Plaintiff subsequently filed.
On Jan. 19, 2022, the Court granted the Plaintiff's motion for
preliminary approval. On April 11, 2022, the Plaintiff filed a
motion for final approval and a motion for attorneys' fees. On
April 29, 2022, the Court held a fairness hearing.
The settlement class consists of: Al persons or entities that
currently hold claims based on securities in GrowCo, and purchased
or otherwise acquired the securities through Offerings during the
period of October 2014 through December 2017 (the Class Period),
and suffered Alleged Losses as defined above. For the avoidance of
doubt, persons or entities who purchased or otherwise acquired the
securities during the Class Period and who have assigned the
securities to VitaNova Partners, LLC are not excluded as Class
Members by virtue of such assignment. There are no subclasses.
In exchange for the release of all claims of the Settlement Class
against all the Defendants, the Settlement Agreement provides that
Starstone will pay $1.5 million for the benefit of the Class. The
parties arrived at this amount after reviewing the Defendants'
insurance policy, which covers claims up to $2 million minus the
cost of the defense. The $1.5 million figure represents
substantially all of the remaining insurance coverage net of
defense costs to date.
The Claims Administrator, selected by the Class Counsel, will
administer the process of receiving, reviewing, and denying claims
under the Class Counsel's supervision and will determine each
claimant's pro rata share of the Settlement Amount upon a Class
Member's showing of loss. The $1.5 million Settlement Fund will be
used to pay, among other things, attorneys' fees and expenses,
costs and expenses reasonably and actually incurred in connection
with locating and providing notice to the potential Class Members,
assisting with filing claims, and administering and distributing
the Settlement Fund.
The Class Counsel received a list of 82 investors and their
addresses from GrowCo's bankruptcy counsel. The claim administrator
mailed the notice to each of these persons by first class mail on
Feb. 2, 2022.
Blue & Green, LLC, a class member that holds two promissory notes
executed by GrowCo, objects to final approval of the settlement. It
objects that the claims to be released by each class member are
overbroad such that they could be construed to release the claims
it has against GrowCo based on the terms of the promissory notes.
The Plaintiff filed a response to the objection, arguing that the
language in the settlement agreement is not overbroad.
Judge Brimmer holds that the settlement agreement makes clear that
it releases claims relating to the class action, which was based on
the omission of material information in the offering documents. The
definition of released claim further clarifies that it does not
apply to claims to collect on the terms of the securities.
Accordingly, Blue & Green's objection is overruled and its request
for the Court to add clarifying language is denied as unnecessary.
Judge Brimmer also finds that the settlement is fair, reasonable,
and adequate. Among other things, he says the Settlement Agreement
was the product of arms-length negotiations between the parties,
the negotiations were done fairly and honestly, the value of
immediate recovery outweighs the mere possibility of future relief,
the Plaintiff and the class counsel have adequately represented the
class, the relief provided to the class is adequate, and the
proposal treats class members equitably.
The Plaintiff filed a motion for attorney fees, an incentive award,
and reimbursement of litigation expenses. The Class Counsel
requests an award of $495,959.12, which is one third of the net
Settlement, a $5,000 incentive award for the Plaintiff, and
$7,122.65 in litigation expenses for the Class Counsel. No class
members have objected to the request for attorney fees.
Judge Brimmer holds that (i) an award of $495,959.12 in attorney
fees to the Class Counsel is reasonable; (ii) an award of $5,000 is
fair and reasonable based on the Plaintiff's involvement in the
case; and (iii) because of inconsistency regarding costs; the Class
Counsel is awarded $6,650.65 in costs.
For the foregoing reasons, Judge Brimmer grants the Plaintiff's
Motion for Final Approval of the Settlement and the Plaintiffs'
Motion for an Award of Attorneys' Fees, Incentive Award, and
Reimbursement of Litigation Expenses.
Pursuant to Rule 23(b)(3) of the Federal Rules of Civil Procedure,
and for the purposes of settlement only, the class is certified as
follows: All persons or entities that currently hold claims based
on securities in GrowCo, and purchased or otherwise acquired the
securities through Offerings during the period of October 2014
through December 2017 (the Class Period), and suffered Alleged
Losses as defined above. For the avoidance of doubt, persons or
entities who purchased or otherwise acquired the securities during
the Class Period and who have assigned the securities to VitaNova
Partners, LLC are not excluded as Class Members by virtue of such
assignment.
Judge Brimmer gives final approval to the Settlement Agreement in
all respects and authorizes and directs the parties to consummate
the Settlement Agreement in accordance with its terms and
provisions. The Plaintiff will file the Settlement Agreement as a
separate docket entry within seven days of the entry of the Order.
The parties and their counsel will fulfill their obligations and
duties under the Settlement Agreement.
The Plaintiff and all class members are permanently enjoined and
barred from asserting, initiating, prosecuting, or continuing any
of the claims released by the Settlement Agreement.
From the Settlement Fund, the Class Counsel is awarded $495,959.12,
Paulson is awarded an incentive award of $5,000, the Class Counsel
will be reimbursed $6,650.65 in costs.
Neither the Order nor the Settlement Agreement is an admission or
concession by the Defendants respecting any facts, liabilities, or
wrongdoing.
Without affecting the finality of the Order, the Court retains
jurisdiction to consider all further matters arising out of or
connected with the Settlement Agreement, including its
implementation.
Judgment will be entered dismissing the case with prejudice.
A full-text copy of the Court's March 15, 2023 Order is available
at https://tinyurl.com/yc4f3w35 from Leagle.com.
HALEAKALA RANCH: Affirmance of Final Judgment in PATH Suit Vacated
------------------------------------------------------------------
In the case, PUBLIC ACCESS TRAILS HAWAI'I, a Hawai'i Nonprofit
Corporation, and DAVID BROWN, JOE BERTRAM, III; KEN SCHMITT; for
themselves individually, and on behalf of the certified class
members, Petitioners/Plaintiffs-Appellants v. HALEAKALA RANCH
COMPANY, a Hawai'i Corporation; STATE OF HAWAI'I, WILLIAM AILĀ,
JR., in his official capacity as the Director of the State of
Hawai'i DEPARTMENT OF LAND AND NATURAL RESOURCES and chair of the
State of Hawai`i BOARD OF LAND AND NATURAL RESOURCES; DEPARTMENT OF
LAND AND NATURAL RESOURCES, Respondents/Defendants-Appellees.
DEPARTMENT OF LAND AND NATURAL RESOURCES, STATE OF HAWAII,
Respondent/Cross-Claimant-Appellee v. HALEAKALA RANCH COMPANY, a
Hawai'i Corporation, Respondent/Cross-Claim Defendant-Appellee,
Case No. SCWC-16-0000559 (Haw.), Judge Michael Wilson of the
Supreme Court of Hawai'i vacates the Intermediate Court of Appeals'
March 31, 2021 Judgment on Appeal affirming the circuit court's
final judgment and remands to the circuit court for proceedings
consistent with this Opinion.
The case involves the recovery of attorneys' fees and costs by a
plaintiff from a private defendant under the private attorney
general ("PAG") doctrine. Petitioners/Plaintiffs-Appellants Public
Access Trails Hawai'i ("PATH"); David Brown; Joe Bertram, III; and
Ken Schmitt prevailed against Respondent/Defendant-Appellee
Haleakalā Ranch Co. ("HRC") in procuring a judgment from the
Circuit Court of the Second Circuit that the State of Hawai'i, not
HRC, owned a portion of Haleakalā Trail that ran over HRC's
property. This appeal stems from the Petitioners' attempt to
recover attorneys' fees from HRC under the PAG doctrine.
On Jan. 18, 2011, the Petitioners filed a complaint against HRC and
William Aila, Jr., in his official capacity as the Director of the
State of Hawai'i Department of Land and Natural Resources ("DLNR")
and Chair of the State of Hawai'i Board of Land and Natural
Resources ("BLNR") ("the State"), seeking to restore public access
to Haleakalā Trail on the island of Maui. On March 31, 2011, the
State filed a motion to dismiss the case, which HRC joined. The
circuit court entered an order denying in part and granting in part
the State's motion to dismiss.
On Dec. 26, 2012, the Petitioners and the State entered into a
joint prosecution agreement ("JPA"), in which they both agreed to
jointly prosecute Count III (claims under the Highways Act of 1892
and Hawai'i Revised Statutes ("HRS") Section 264-1 (2008)) and
Count IV (claim to quiet title) of the Petitioners' original
complaint. The Petitioners agreed to dismiss without prejudice
their claims against the State, and the State agreed to file a
cross-claim against HRC asserting ownership of Haleakalā Trail.
On Feb. 4, 2013, the court filed an order granting the Petitioners'
motion to approve the JPA. Pursuant to the JPA, on March 6, 2013,
the DLNR filed its cross-claim against HRC, and on March 27, 2013,
the circuit court ordered all of the Petitioners' claims against
the State dismissed without prejudice.
On May 3, 2013, the circuit court ordered the trial bifurcated into
two phases. Phase one of trial consisted of (1) the State's
cross-claim against HRC to quiet title, (2) the public right of way
element of the Petitioners' public nuisance claim against HRC, and
(3) HRC's cross-claim against the State, asserting that HRC was the
sole and exclusive owner of Haleakalā Trail.
On Oct. 24, 2013, pursuant to HRS Section 607-14.5(c) (2016), the
Petitioners sent a written letter to HRC requesting that HRC: (1)
withdraw its frivolous claims and defenses that it owned Haleakalā
Trail, (2) stipulate that the State owned Haleakalā Trail, and (3)
pay the Petitioners $500,000 in attorneys' fees. On Oct. 29, 2013,
HRC sent back a two-sentence rejection of the Petitioners' demand.
On Nov. 20, 2013, the Petitioners filed a motion for partial
summary judgment ("MPSJ"), alleging that there was no genuine
dispute of material fact that the State owned in fee simple the
portion of Haleakalā Trail that fell within HRC's private
property.
On March 17, 2014, a jury trial commenced to determine the phase
one issues. On Dec. 19, 2014, the circuit court entered its
judgment on phase one of the jury trial. Consistent with the jury's
special verdict delivered on April 23, 2014 in favor of the
Petitioners, in relevant part, that Haleakala Trail (i) is a public
right of way under the Highways Act of 1892 by virtue of being
opened, laid out, or built by the Government in 1905; (ii) is a
public right of way under the Highways Act of 1892 by virtue of
being the successor trail to a trail in existence before 1892;
(iii) is a public right of way by virtue of being the successor
trail to a trail in existence before the Mahele of 1848; (iv) has
not been abandoned by the Government by due process of law; (v) is
owned by the State in fee simple; and (vi) is a public right of way
and therefore the Plaintiffs' have proven the first element of
their public nuisance claim against HRC.
On Dec. 19, 2014, the same day the circuit court issued its phase
one judgment, the Petitioners, the State, and HRC mediated a
settlement agreement ("Settlement"). The Settlement was signed by
the Petitioners, the State, and HRC.
On Dec. 16, 2014, the Petitioners filed a "Motion for Attorneys'
Fees and Costs for Phase One of Trial" ("first AF motion")
requesting attorneys' fees in the amount of $1,108,915.30 and costs
in the amount of $24,871.00 for a total of $1,133,786.30 pursuant
to the RAG doctrine. On Feb. 25, 2015, the circuit court announced
its ruling granting in part and denying in part the Petitioners'
first AF motion. The circuit court ordered the Petitioners to
resubmit their request for attorneys' fees and costs, stated that
the parties could address the details of the requested fees in
supplemental memoranda, and set a hearing at which to announce the
award of costs and fees.
Pursuant to the circuit court's March 4 Order, the parties filed
additional memoranda regarding the amount of attorneys' fees and
costs. They requested $396,031.01 in attorneys' fees through March
4, 2013 (the date the Petitioners claim the JPA became effective)
and $24,871 in costs. HRC requested the circuit court award the
Petitioners $120,852.00 in attorneys' fees through Dec. 26, 2012
(the date the JPA was signed) and $21,331.31 in costs.
On April 22, 2015, the circuit court issued an oral ruling awarding
the Petitioners attorneys' fees and costs. On May 19, 2015, the
circuit court filed an order consistent with its oral ruling
awarding the Petitioners a total sum of $256,494.53.
On May 6, 2015, the Petitioners filed "Petitioners' Second Motion
for Attorneys' Fees and Costs for Phase One of Trial" ("second AF
motion"), requesting additional attorneys' fees in the amount of
$71,462.58 and costs in the amount of $905.06 for a total of
$72,367.64. On June 24, 2015, the circuit court held a hearing at
which it heard brief oral argument from the parties on the
Petitioners' second AF motion.
The circuit court denied the Petitioners' second AF motion.
Consistent with its oral ruling, on July 13, 2015, the circuit
court filed an order denying the Petitioners' second AF motion. On
July 11, 2016, the circuit court entered a final judgment
consistent with its prior rulings.
On Aug. 10, 2016, the Petitioners filed a notice of appeal to the
Intermediate Court of Appeals ("ICA"). They stated they were
appealing the circuit court's: (1) March 4, 2015 order granting in
part their first AF motion; (2) May 19, 2015 order awarding them
attorneys' fees and costs; (3) July 13, 2015 order denying their
second AF motion; and (4) July 11, 2016 final judgment.
On Feb. 26, 2021, the ICA published a memorandum opinion affirming
the circuit court's final judgment. It found that the circuit court
did not abuse its discretion in denying the Petitioners attorneys'
fees after the date of the JPA. The ICA held that the circuit court
did not abuse its discretion in denying the Petitioners fees and
costs reasonably incurred in litigating their initial claim for
fees ("fees on fees") because the Settlement did not appear to
contemplate [Petitioners' subsequent request for attorneys' fees.
Finally, the ICA held that the circuit court did not clearly err in
declining to find HRC had maintained its ownership claim in bad
faith. Given its conclusion that the circuit did not abuse its
discretion or commit clear error, the ICA affirmed the circuit
court's final judgment.
The Petitioners timely filed their application for a writ of
certiorari on May 28, 2021. Their cert application presents four
questions: (1) whether, under the PAG doctrine, the Petitioners may
recover attorneys' fees from HRC, a private defendant, where
Petitioners co-litigated the case with the State against HRC
pursuant to a JPA; (2) whether, under the PAG doctrine, the
Petitioners are entitled to recover fees on fees; (3) whether the
Settlement between the Petitioners, HRC, and the State precluded
Petitioners from filing a second AF motion; and (4) whether the
circuit court clearly erred by finding that HRC's ownership claim
was not frivolous or maintained in bad faith under HRS Section
607-14.5.
The Petitioners, repeating many of the arguments from their two AF
motions, argued that the circuit court erred by: holding that they
were not entitled to attorneys' fees after the date the JPA was
signed under the PAG doctrine; denying them fees on fees; and
holding that the record did not support a finding that HRC's
ownership claim was made in bad faith. They urged the ICA to
reverse and remand the Petitioners' first AF motion and the circuit
court's award order (to the extent they denied fees after the date
of the JPA and under HRS Section 607-14.5), and their second AF
motion in its entirety.
Judge Wilson opines that the PAG doctrine remains an essential tool
for promoting the vindication of public rights. Because eligible
plaintiffs may recover attorneys' fees, the PAG doctrine enables
litigation in the public's interest by relieving otherwise
prohibitive costs and burdens assumed by individuals and public
interest groups. To date, the PAG doctrine has promoted litigation
aimed at the preservation and conservation of Hawaii's land and
natural resources, as well as litigation vindicating the rights of
the Native Hawaiian community.
The viability of the PAG doctrine hinges on the Plaintiffs being
able to rely on the doctrine's promise that they will receive
reasonable compensation for their efforts on behalf of the public.
Judge Wilson holds that this promise translates into allowing the
Plaintiffs who recover attorneys' fees and costs under the PAG
doctrine to also recover those fees on fees.
Judge Wilson also holds that a plaintiff may recover attorneys'
fees under the PAG doctrine from a private defendant even where the
State voluntarily participated as a co-litigant in the case. The
State's participation pursuant to a joint prosecution agreement, or
other agreement to co-litigate, is not dispositive with respect to
whether a plaintiff's private enforcement efforts were necessary
under the PAG doctrine.
Because the ICA held to the contrary, Judge Wilson vacates the
ICA's March 31, 2021 Judgment on Appeal and remands to the circuit
court for proceedings consistent with his Opinion. He concludes
that awarding fees on fees under the PAG doctrine is permitted, and
furthers the doctrine's rationale of vindicating important public
rights. The JPA was not dispositive in analyzing the Petitioner's
eligibility for attorneys' fees under the PAG doctrine. The
Petitioners' second AF motion was not precluded as a matter of law,
and Petitioners are eligible for fees on fees.
A full-text copy of the Court's March 15, 2023 Opinion is available
at https://tinyurl.com/57bezk89 from Leagle.com.
Peter N. Martin and, Tom Pierce, for the Appellants.
Francis P. Hogan -- fhogan@awlaw.com -- Michael W. Gibson --
mgibson@awlaw.com -- and, Benjamin M. Creps -- bcreps@awlaw.com --
for Appellee Haleakala, Ranch Company.
HANDS OF TIBET: Rhone Files ADA Suit in S.D. New York
-----------------------------------------------------
A class action lawsuit has been filed against Hands of Tibet, LLC.
The case is styled as Tonimarie Rhone, on behalf of herself and all
others similarly situated v. Hands of Tibet, LLC, Case No.
1:23-cv-02425 (S.D.N.Y., March 22, 2023).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Hands of Tibet -- https://www.handsoftibet.com/ -- is an online
Tibetan family owned Store providing Tibetan Mala, Prayer Flags,
Singing Bowl & more Buddhist Meditation products at a reasonable
price.[BN]
The Plaintiff is represented by:
Noor H. 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
HERSHEY COMPANY: Powell Mislabeling Suit Removed to E.D. Mo.
------------------------------------------------------------
The case styled Billie Powell, on behalf of himself and other
members of the putative class, Plaintiff v. The Hershey Company,
Defendant, Case No. 2322-CC00330, was removed from the Circuit
Court of the City of St. Louis, Missouri, to the United States
District Court for the Eastern District of Missouri on March 17,
2023.
The Clerk of Court for the Eastern District of Missouri assigned
Case No. 4:23-cv-00341 to the proceeding.
Plaintiff Powell's claims relate to alleged misleading advertising
of the packaging of Hershey's Brookside brand Pomegranate Dark
Chocolate, Acai & Blueberry Dark Chocolate, and Goji & Raspberry
Dark Chocolate products. Specifically, Powell alleges that the
statement "NO ARTIFICIAL FLAVORS" on the products' label is
deceptive, false, and misleading because the products contain malic
acid, which Plaintiff alleges affects the taste of the products.
The Hershey Company manufactures, packages, distributes, and sells
food products throughout the United States.[BN]
The Defendant is represented by:
Megan McCurdy, Esq.
STINSON LLP
1201 Walnut Street, Suite 2900
Kansas City, MO 64106-2150
Telephone: (816) 691-2649
E-mail: megan.mccurdy@stinson.com
- and -
Steven A. Zalesin, Esq.
Jane Metcalf, Esq.
PATTERSON BELKNAP WEBB & TYLER LLP
1133 Avenue of the Americas
New York, NY 10036-6710
Telephone: (212) 336-2000
Facsimile: (212) 336-2222
E-mail: sazalesin@pbwt.com
jmetcalf@pbwt.com
HSBC BANK: Final OK of $5.6B Class Settlement in Fikes Suit Upheld
------------------------------------------------------------------
In the case, Fikes Wholesale, Inc., Plaintiff-Appellant, Plaintiffs
in civil action Photos Etc. Corp. v. Visa U.S.A., Inc.
05-cv-5071JG-JO, CHS Inc., Leons Transmission Service, Inc.,
Traditions, Ltd., Plaintiffs in civil action Parkway Corp. v. Visa
U.S.A., Inc. 05-cv-5077 JG-JO, Plaintiffs in civil action Discount
Optics, Inc., et al. v. Visa U.S.A., Inc., et al. 05-cv-5870 JG-JO,
Payless Shoe Source, Inc., Capital Audio Electronics, Inc.,
Plaintiffs-Appellees, Plaintiffs in civil action Jetro Holding,
Inc. et al v. Visa U.S.A., Inc. et al 05-cv-4520 JG-JO, Plaintiffs
in civil action National Association of Convenience Stores et al v.
Visa U.S.A., Inc. et al 05-cv-4521 JG-JO, Plaintiffs in civil
action Supervalu Inc. v. Visa U.S.A. Inc. et al 05-cv-4650 JG-JO,
Plaintiffs in civil action Seaway Gas & Petroleum, Inc. v. Visa
U.S.A., Inc. et al 05-cv-4728-JG-JO, Plaintiffs in civil action
Raley's v. Visa U.S.A. Inc. et al 05-cv-4799 JG-JO, Plaintiffs in
civil action East Goshen Pharmacy, Inc. v. Visa U.S.A., Inc.
05-cv-5073 JG-JO, Plaintiffs in civil action National Grocers
Association et al v. Visa U.S.A., Inc. et al 05-cv-5207 JG-JO,
Plaintiffs in civil action American Booksellers Association v. Visa
U.S.A., Inc. et al 05-cv-5319 JG-JO, Plaintiffs in civil action
Rookies, Inc. v. Visa U.S.A., Inc. 05-CV-5069 JG-JO, Plaintiffs in
civil action Jasperson v. Visa U.S.A., Inc. 05-cv-5070 JG-JO,
Plaintiffs in Civil action Animal Land, Inc. v. Visa U.S.A., Inc
05-cv-5074 JG-JO, Plaintiffs in civil action Bonte Wafflerie, LLC
v. Visa U.S.A., Inc. 05-cv-5083 JG-JO, Plaintiffs in civil action
Broken Ground, Inc. v. Visa U.S.A., Inc. 05-cv-5082 JG-JO,
Plaintiffs in civil action Baltimore Avenue Foods, LLC v. Visa
U.S.A., Inc. 05-cv-5080 JG-JO, Plaintiffs in civil action Fairmont
Orthopedics & Sports Medicine, PA v. Visa U.S.A., Inc. 05-cv-5076
JG JO, Plaintiffs in civil action Tabu Salon & Spa, Inc. v. Visa
U.S.A., Inc. 05-cv-5072 JG-JO, Plaintiffs in civil action Lakeshore
Interiors v. Visa U.S.A., Inc. 05-cv-5081JG JO, Plaintiffs in civil
action NuCity Publications, Inc. v. Visa U.S.A., Inc. 05-cv-5075
JG-JO, Plaintiffs in civil action Hyman v. VISA International
Service Association, Inc. 05-cv-5866 JG-JO, Plaintiffs in civil
action Lee et al v. Visa U.S.A. Inc. et al 05-cv-3800 JG-JO,
Plaintiffs in civil action Resnick Amsterdam & Leshner P.C. v. Visa
U.S.A., Inc. et al 05-cv-3924 JG-JO, Plaintiffs in civil action
Hy-Vee, Inc. v. Visa U.S.A., Inc. et al 05-cv-3925-JG-JO,
Plaintiffs in civil action Meijer, Inc. et al v. Visa U.S.A. Inc.
et al 05-cv-4131-JG-JO, Plaintiffs in civil action Lepkowski v.
Mastercard International Incorporated et al 05-cv-4974 JG-JO,
Plaintiffs in civil action Kroger Co. v. Visa U.S.A., Inc.
05-cv-5078 JG-JO, Plaintiffs in civil action Fitlife Health Systems
of Arcadia, Inc. v. Mastercard International Incorporated et al
05-cv-5153 JG-JO, Plaintiffs in civil action Harris Stationers,
Inc., et al. v. Visa International Service Association, et al.
05-cv-5868 JG-JO, Plaintiffs in civil action Dr. Roy Hyman, et al
v. Visa International Service Association, Inc., et al. 05-cv-5866
JG-JO, Plaintiffs in civil action Performance Labs, Inc. v.
American Express Travel Related Services Co., Inc., et al.
05-cv-5869 JG-JO, Plaintiffs in civil action Leeber Cohen, M.D. v.
Visa U.S.A., Inc., et al. 05-cv-5878 JG-JO, Plaintiffs in civil
action G.E.S. Bakery, Inc. v. Visa U.S.A., Inc., et al. 05-cv-5879
JG-JO, Plaintiffs in civil action Connecticut Food Association,
Inc., et al. v. Visa U.S.A., Inc., et al. 05-cv-5880 JG-JO,
Plaintiffs in Twisted Spoke v. Visa U.S.A., Inc., et al. 05-cv-5881
JG-JO, Plaintiffs in civil action Lombardo Bros., Inc. v. Visa
U.S.A., Inc. 05-5882 JG-JO, Plaintiffs in civil action Abdallah
Bishara, etc. v. Visa U.S.A., Inc. 05-cv-5883 JG-JO, Plaintiffs in
civil action 518 Restaurant Corp. v. American Express Travel
Related Services Co., Inc., et al. 05-cv-5884 JG-JO, Plaintiffs in
civil action JGSA, Inc. v. Visa U.S.A., Inc., et al. 05-cv-5885
JG-JO, Plaintiffs in civil action The Kroger Co., et al. v.
MasterCard Inc., et al., 06-cv-0039 JG-JO, Plaintiffs in civil
action Rite Aid Corporation et al. v. Visa U.S.A., Inc. et al.
05-cv-5352 JG-JO, Plaintiffs in civil action Fringe, Inc. v. Visa,
U.S.A., Inc et al 05-cv-4194 JG-JO, Plaintiffs in civil action
Bi-Lo, LLC. et al v. Visa U.S.A., Inc. et al 06-cv-2532 JG-JO,
Plaintiffs in civil action Bi-Lo, LLC. et al v. Mastercard
Incorporated et al 06-cv-2534 JG-JO, Plaintiffs in civil action
06-cv-5583, Esdacy, INC. v. Visa USA, INC. et al, QVC, Inc., GMRI,
Inc., NATSO, Incorporated, Plaintiffs in civil action BKS. v. Visa
U.S.A., Inc. et al 09-cv-2264-JG-JO, Plaintiffs in civil action
Gulfside Casino Partnership. v. Visa U.S.A., Inc. et al 09-cv-03225
JG-JO, Keith Superstores, BKS, INC., BKS of LA, Inc. d/b/a KEITH
SUPERSTORES, and KEITHCO PETROLEUM, INC., Keithco Petroleum, Inc.,
BKS, INC., BKS of LA, Inc. d/b/a KEITH SUPERSTORES, and KEITHCO
PETROLEUM, INC., National Community Pharmacists Association,
National Cooperative Grocers Association, Coborn's Incorporated,
D'Agostino Supermarkets, Inc., National Restaurant Association,
Affiliated Foods Midwest, Gielen Enterprises, Inc., Rice Palace,
Inc., Tobacco Plus, Inc., CVS Pharmacy, Inc., Plaintiffs in Delta
Airlines Inc et all v. Visa Inc et al, 1:13-cv-04766-JG-JO, Cox
Communications, Inc., Cox Enterprises, Inc., Cox Media Group, Inc.,
G6 Hospitality LLC, Live Nation Entertainment, Inc., Manheim Inc.,
Motel 6 Operating LP, E-Z Mart Stores, Inc., Jacksons Food Stores,
Inc./PacWest Energy LLC, Kum & Go, L.C., Sheetz, Inc., Susser
Holdings Corporation, The Pantry, Inc., Plaintiffs in Target
Corporation, et al. v. Visa Inc., et al., 13-cv-03477, DSW Inc.,
Jetblue Airways Corporation, Plaintiffs in Civil Action 7-Eleven
Inc., et al. v. Visa Inc. et al, 1:13-cv-05746-JG-JO, Minnesota
Twins LLC, Crystal Rock LLC, Plaintiffs in Civil Action Target
Corporation, et al. v. Visa Inc. et al., 13-cv-4442, Plaintiffs in
civil action Publix Supermarkets, Inc. v. Visa U.S.A. Inc. et al
05-cv-4677 — JG-JO, Plaintiffs in civil action LDC, Inc. v. Visa
U.S.A., Inc., et al 05-cv-5871 JG-JO, Robersons Fine Jewlery, Inc.,
Sunoco, Inc. (RM), Einstein Noah Restaurant Group, Inc., Furniture
Row BC, Inc., Google, Inc., Google Payment Corporation, Bass Pro
Group, LLC, American Sportsman Holdings Co., Bass Pro Outdoor
World, LLC, BPIP, LLC, BPS Direct, LLC, Big Cedar, LLC, Fryingpan
River Ranch, LLC, Plaintiffs, v. HSBC Bank USA, N.A., Capital One
Bank, Capital One, F.S.B., Capital One Financial Corporation, Wells
Fargo & Company, Juniper Financial Corporation, National City Bank
of Kentucky, National City Corporation, Mastercard Incorporated,
HSBC Finance Corporation, HSBC North America Holdings Inc.,
Citibank, N.A., Citigroup Inc., Chase Bank USA, N.A., JPMorgan
Chase & Co., Fifth Third Bancorp, Bank of America, N.A., First
National Bank of Omaha, Barclays Financial Corp., Chase Paymentech
Solutions, LLC, Visa International Service Association, Visa U.S.A.
Inc., Bank of America Corporation, Texas Independent Bancshares,
Inc., Wells Fargo Merchant Services, LLC, Visa Inc., Capital One
Bank, (USA), N.A., JP Morgan Chase Bank, N.A., Barclays Bank PLC,
Barclays Bank Delaware, MBNA America Bank, N.A., HSBC Finance
Corporation, HSBC Holdings PLC, HSBC North America Holdings, Inc,
PNC Financial Services Group, Inc., SunTrust Bank, Suntrust Banks
Inc, Wells Fargo Bank, N.A., Wachovia Corporation, Wachovia Bank,
National Association, BA Merchant Services LLC, FKA National
Processing, Inc., FIA Card Services, N.A., Mastercard International
Incorporated, Defendants-Appellees, Defendants in civil action
Jetro Holding, Inc. et al v. Visa U.S.A., Inc. et al 05-cv-4520
JG-JO, Defendants in civil action National Association of
Convenience Stores et al v. Visa U.S.A., Inc. et al 05-cv-4521
JG-JO, Defendants in civil action Supervalu Inc. v. Visa U.S.A.
Inc. et al 05-cv-4650 JG-JO, Defendants in civil action Publix
Supermarkets, Inc. v. Visa U.S.A. Inc. et al 05-cv-4677-JG-JO,
Defendants in civil action Seaway Gas & Petroleum, Inc. v. Visa
U.S.A., Inc. et al 05-cv-4728 JG-JO, Defendants in civil action
Raley's v. Visa U.S.A. Inc. et al 05-cv-4799-JG-JO, Defendants in
civil action East Goshen Pharmacy, Inc. v. Visa U.S.A., Inc
05-cv-5073-JG-JO, Defendants iin civil action National Grocers
Association et al v. Visa U.S.A., Inc. et al 05-cv-5207 JG-JO,
Defendants in civil action American Booksellers Association v. Visa
U.S.A., Inc. et al 05-cv-5319 JG-JO, Defendants in civil action
Rookies, Inc. v. Visa U.S.A., Inc. 05-cv-5069-JG-JO, Defendants in
civil action Jasperson v. Visa U.S.A., Inc. 05-cv-5070-JG-JO,
Defendants in civil action Animal Land, Inc. v. Visa U.S.A., Inc.
05-cv-5074-JG-JO, Defendants in civil action Bonte Wafflerie, LLC
v. Visa U.S.A., Inc. 05-cv-5083 JG-JO, Defendants in civil action
Broken Ground, Inc. v. Visa U.S.A., Inc. 05-cv-5082 JG-JO,
Defendants in civil action Baltimore Avenue Foods, LLC v. Visa
U.S.A., Inc. 05-cv-5080 JG-JO, Defendants in civil action Fairmont
Orthopedics & Sports Medicine, PA v. Visa U.S.A., Inc.
05-cv-5076-JG-JO, Defendants in civil action Tabu Salon & Spa, Inc.
v. Visa U.S.A., Inc. 05-cv-5072-JG-JO, Defendants in civil action
Lakeshore Interiors v. Visa U.S.A., Inc. 05-cv-5081 JG-JO,
Defendants in civil action Parkway Corp. v. Visa U.S.A., Inc.
05-cv-5077-JG-JO, Defendants in civil action Hyman v. VISA
International Service Association, Inc. 05-cv-5866 JG-JO,
Defendants in civil action Lee et al v. Visa U.S.A. Inc. et al
05-cv-03800, Defendants in civil action Resnick Amsterdam & Leshner
P.C. v. Visa U.S. A, Inc. et al, 05-cv-3924 JG-JO, Defendants in
civil action Hy-Vee, Inc. v. Visa U.S.A., Inc. et al 05-cv-03925
JG-JO, Defendants in civil action Meijer, Inc. et al v. Visa U.S.A.
Inc. et al 05-cv-4131 JG-JO, Defendants in civil action Lepkowski
v. Mastercard International Incorporated et al 05-cv-4974-JG-JO,
Defendants in civil action Photos Etc. Corp. v. Visa U.S.A., Inc.
05-cv-5071-JG-JO, Defendants in civil action Kroger Co. v. Visa
U.S.A., Inc. 05-cv-5078 JG-JO, Defendants in civil case Fitlife
Health Systems of Arcadia, Inc. v. Mastercard International
Incorporated et a 05-cv-5153 JG-JO, Defendants in civil action Rite
Aid Corporation et al. v. Visa U.S.A., Inc. et al. 05-cv-5352
JG-JO, Defendants in civil action The Kroger Co., et al. v.
MasterCard Inc., et al., 06-cv-0039 JG-JO, Defendants in civil
action Harris Stationers, Inc., et al. v. Visa International
Service Association, et al. 05-cv-5868 JG-JO, Defendants in civil
action Dr. Roy Hyman, et al. v. Visa International Service
Association, Inc., et al. 05-cv-5866, Defendants in civil action
Performace Labs, Inc. v. American Express Travel Related Services
Co., Inc., et al 05-cv-5869 JG-JO, Defendants in civil action
Discount Optics, Inc., et al. v. Visa U.S.A., Inc., et al.
05-cv-5870 JG-JO, Defendants in civil action LDC, Inc. v. Visa
U.S.A., Inc. et al. 05-cv-5871 JG-JO, Defendants in civil action
G.E.S. Bakery, Inc. v. Visa U.S.A., Inc., et al. 05-cv-5879 JG-JO,
Defendants in civil action Leeber Cohen, M.D. v. Visa U.S.A., Inc.,
et al. 05-cv-5878 JG-JO, Defendants in civil action Connecticut
Food Association, Inc., et al. v. Visa U.S.A., Inc., et al
05-cv-5880 JG-JO, Defendants in civil action Twisted Spoke v. Visa
U.S.A., Inc., et al. 05-cv-5881 JG-JO, Defendants in civil action
Lombardo Bros., Inc. v. Visa U.S.A., Inc. 05-cv-5882 JG-JO,
Defendants in civil action Abdallah Bishara, etc. v. Visa U.S.A.,
Inc. 05-cv-5883 JG-JO, Defendants in civil action 518 Restaurant
Corp. v. American Express Travel Related Services Co., et al.
05-cv-5884 JG-JO, Defendants in civil action JGSA, Inc. v. Visa
U.S.A., Inc., et al 05-cv-5885, Defendants in civil action Fringe,
Inc. v. Visa, U.S.A., Inc. et al 05-cv-4194 JG-JO, Defendants in
civil action Bi-Lo, LLC. et al v. Visa U.S.A., Inc. et al
06-cv-2532 JG-JO, Defendants in civil action Bi-Lo, LLC. et al v.
Visa U.S.A., Inc. et al 06-cv-2534 JG-JO, Defendants in civil
action 06-cv-5583, Esdacy, INC. v. Visa USA, INC. et al, Washington
Mutual, Inc., Defendants in civil action BKS. v. Visa U.S.A., Inc.
et al 09-cv-2264-JG-JO, Wachovia Corporation, Wachovia Bank,
National Association, Defendants in civil action Gulfside Casino
Partnership. v. Visa U.S.A., Inc. et al 09-cv-03225 JG-JO, Landers
Harley-Davidson Little Rock, Sears Holdings Management Corporation,
Discover Financial Services, Newport European Motorcars, Ltd.
Newport Beach, California, Newport European Motorcars, Ltd. Newport
Beach, California, Dennis D Gibson, Unlimited Vacations and Cruises
Inc., Top Gun Wrecker, Orange County Bldg Materials, Bishop, DBA
Hat & Gown, Enterprise Holdings, Inc., Ragland Bros. Retail Cos.,
Inc., ABP Corporation, NJ Applebee's (Paramus), River Valley
Market, LLC, Durango Natural Foods, The Real Good Fashion Store,
Inc., Paymentech, LLC, LAJ, Inc., DBA Grapevine Wines an Spirits,
Lane Courkamp, Premier Enterprises Group, Class Action Recovery
Service, Discover, Refund Recovery Services, LLC, Electronic
Payment Systems, LLC, Daviss Donuts and Deli, Jonbro, Visa Europe
Limited, Visa Europe Services Inc., Chase Manhattan Bank USA, N.A.,
Citibank (South Dakota), N.A., BA Merchant Services LLC, FKA
National Processing, Inc., FIA Card Services, N.A., Bass Pro Shops
White River Conference and Education Center, LLC, SunTrust Bank
Holding Company, Defendants, v. Jack Rabbit LLC, Cahaba Heights
Service Center, Inc., DBA Cahaba Heights Chevron, R & M Objectors,
Falls Auto Gallery, DBA Falls Car Collection, Gnarlywood LLC,
Quincy Woodrights, LLC, Kevan McLaughlin, Unlimited Vacations and
Cruises Inc., Pets USA LLC, Slidell Oil Company, LLC, National
Association of Shell Marketers, Inc., Petroleum Marketers
Association of America, Midwest Petroleum Company, Society of
Independent Gasoline Marketers of America, Objectors-Appellants,
Docket Nos. 20-339(L), 20-340(CON), 20-341(CON), 20-342(CON),
20-343(CON), 20-344 (CON) (2d Cir.), the U.S. Court of Appeals for
the Second Circuit affirms the district court's orders approving
the roughly $5.6 billion settlement, $900,000 in service awards to
the Lead Plaintiffs, and roughly $523 million in attorneys' fees.
A putative class of over 12 million merchants brought the antitrust
action under the Sherman Act against Visa U.S.A. Inc., MasterCard
International Inc., and numerous banks that serve as payment-card
issuers for those networks. The Plaintiffs alleged that Visa and
MasterCard adopted and enforced rules and practices relating to
payment cards that had the combined effect of injuring merchants by
allowing Visa and MasterCard to charge supracompetitive fees (known
as "interchange fees") on each payment card transaction.
After nearly 15 years of litigation, the parties agreed to a
settlement of roughly $5.6 billion, which was approved by the U.S.
District Court for the Eastern District of New York (Brodie, C.J.)
over numerous objections. In so doing, $900,000 in service awards
was granted to the Lead Plaintiffs, and roughly $523 million was
granted in attorneys' fees.
The Appellants are various objectors who argue that the district
court erred when it certified the class, approved the settlement,
granted service awards and computed attorneys' fees.
It is well known that Visa and MasterCard operate two of the
world's largest payment-card networks. An understanding of the case
requires some knowledge of how those networks operate. In brief:
the customer presents a payment card to the merchant; the merchant
relays the card information to its bank (the acquiring bank); the
acquiring bank forwards that information to the appropriate network
(Visa or MasterCard); the network relays the information to the
bank that issued the customer's card (the issuing bank); and the
issuing bank confirms that the customer has sufficient credit or
funds to cover the purchase. When these steps are completed, the
issuing bank transmits its approval back through the chain to the
acquiring bank, which relays it to the merchant at the point of
sale.
Next, the issuing bank provides the funds via the appropriate
network to the acquiring bank, less the "interchange fee" (the
focus of this litigation) which the issuing bank -- a member of the
Visa or MasterCard network -- keeps. While the issuing and
acquiring banks are contractually free to agree on an applicable
interchange fee, Visa and MasterCard each set a default fee in the
absence of such an agreement.
The acquiring bank, in turn, pays the merchant while charging what
is known as a "merchant discount fee." That fee covers the
interchange fee as well as an additional amount that compensates
the acquiring bank for processing the transaction. The applicable
default fee varies depending on factors that include the type of
payment card. Merchants who accept Visa- and MasterCard-branded
cards are bound by the issuers' network rules, which in effect are
identical to one another.
Numerous antitrust lawsuits were filed against Visa and MasterCard
beginning in 2005. The first consolidated complaint in this action
(which was followed by several amended complaints) was filed the
following year. The then-operative complaints alleged that the Visa
and MasterCard interchange fees, and associated rules, were
anticompetitive and violated the Sherman Act, 15 U.S.C. Sections 1
and 2, and California's Cartwright Act, Bus. & Prof. Code Section
16700 et seq.
Prolonged negotiation resulted in a "2012 Settlement Agreement."
Consistent with the then-operative complaint, the proposed
settlement divided the plaintiffs into two classes. The first --
the Rule 23(b)(3) damages class -- covered merchants that accepted
Visa and/or MasterCard from Jan. 1, 2004 to Nov. 27, 2012. The
second -- the Rule 23(b)(2) injunction class -- covered merchants
that accepted (or would accept) Visa and/or MasterCard on or after
Nov. 27, 2012. The 23(b)(3) class was set to receive roughly $5.3
billion, after opt-out payments. The 23(b)(2) class would receive
injunctive relief in the form of changes to Visa's and MasterCard's
network rules. While members of the (b)(3) damages class could opt
out, members of the (b)(2) injunction class could not. The same
counsel represented both classes.
The settlement agreement was given preliminary approval in late
2012. Final approval by the district court came roughly a year
later.
On June 30, 2016, the Second Circuit held that the members of the
(b)(2) injunction class received inadequate representation, in
violation of the Due Process Clause and Rule 23(a)(4) of the
Federal Rules of Civil Procedure, because, despite their divergent
interests, they were represented by the same counsel and lead
plaintiffs as the (b)(3) damages class. Accordingly, it vacated the
district court's certification of the settlement class, reversed
approval of the 2012 Settlement Agreement, and remanded for further
proceedings.
On remand, the district court appointed the three law firms that
had previously served as class counsel (together, "Class Counsel")
to serve as interim counsel only for the Rule 23(b)(3) damages
class. About two years later, after additional discovery and
renegotiation, the parties executed this new settlement agreement
(the "Settlement Agreement"), which provides for a collective award
of $5.6 billion (as reduced in the amount of $700 million to
reflect opt-outs). The district court granted preliminary approval
on Jan. 24, 2019, and final approval on Dec. 13, 2019.
The Settlement Agreement defines the class as "all persons,
businesses, and other entities that have accepted any Visa-Branded
Cards and/or Mastercard-Branded Cards in the United States at any
time from Jan. 1, 2004 to the Settlement Preliminary Approval Date
[Jan. 24, 2019]."
After granting final approval of the Settlement Agreement, the
district court awarded the Class Counsel 9.31% of the settlement
fund in attorneys' fees, approximately $523 million. The award for
expenses was $39 million. Separately, the district court granted
the class representatives $900,000 in service awards, in addition
to out-of-pocket expenses.
The Appellants argue that the district court abused its discretion
when it certified the class, approved the settlement, granted
service awards and computed attorneys' fees.
First, the Appellants, who are representatives of the service
stations, raise challenges regarding: (A) ascertainability, (B)
adequacy of representation, (C) claims administration, and (D)
notice.
The Second Circuit opines that (A) the only relevant inquiry in
ascertainability is whether determinations as to class membership
are "objectively possible" and the Appellants do not contend that
identifying the direct payor for each transaction is impossible;
(B) it is unpersuaded by the Appellants' contention that the class
definition gave rise to an intra-class conflict that left the
franchisees without adequate representation; (C) there is nothing
unusual about a special master identifying that entity after
settlement approval; and (D) there was nothing unreasonable about
the supplemental notice.
Second, in exchange for the $5.6 billion, the settlement releases
all claims that "accrue no later than five years after" the date on
which appeals from the settlement become final. This feature of the
release is said to violate two related rules: Rule 23(a)(4) and
Rule 23(e)(2)(D). Newer merchants, who started accepting payment
cards only toward the end of the class period, are said to be
inadequately represented in violation of Rule 23(a)(4). Relatedly,
it is contended that the future release results in inequitable
treatment among the class members in violation of Rule
23(e)(2)(D).
The Second Circuit opines that the release of claims provision
contains a de-facto severability clause, providing that the release
"extends to, but only to, the fullest extent permitted by federal
law." It says this language ensures that the Settlement Agreement
will stand even if certain aspects of the release were to fall. A
holding as to the proper scope of the release -- i.e., whether the
future release violates federal law -- can await a case in which
the issue would directly affect the proceedings.
Third, the district court granted $900,000 in service awards to the
Lead Plaintiffs. The Appellants contend that such awards are
prohibited by Supreme Court precedent and that, even if they were
generally permissible, the amount awarded case was excessive.
The Second Circuit holds that service awards are likely
impermissible under Supreme Court precedent. In Trustees v.
Greenough, 105 U.S. 527, 537 (1881), the Supreme Court has held
that it was "decidedly objectionable" for cash allowances to be
"made for the personal services and private expenses" of a creditor
who sued on behalf of himself and other similarly situated
bondholders. But practice and usage seem to have superseded
Greenough (if that is possible). And even if practice and usage
cannot undo a Supreme Court holding, Melito v. Experian Mktg. Sols.
Inc., 923 F.3d 85, 96 (2d Cir. 2019) and Hyland v. Navient Co., 48
F.4th 110, 123-24 (2d Cir. 2022) precedents that it must follow.
Given that the basis for any service award in a class action is at
best dubious under Greenough, and that, unsurprisingly, calculation
of such an award is standardless, it is difficult to find traction
for a ruling that this award is an abuse of discretion. The class
should not pay for time spent lobbying for changes in law that do
not benefit the class. The Second Circuit directs the district
court to reduce the award to the extent its size was increased
because of time spent lobbying.
Lastly, the award of attorneys' fees exceeds half a billion
dollars. The only question is whether the district court abused its
discretion in awarding such fees.
The Second Circuit cannot say that it did. The district court
therefore acted within its discretion when it granted Class Counsel
a fee award that more than doubled the lodestar.
For the foregoing reasons, the Second Circuit affirms in all
respects the district court's orders, to the extent they
constituted a final judgment, with the exception that it directs
the district court to reduce the service award to the class
representatives to the extent that its size was increased by time
spent in lobbying efforts that would not increase the recovery of
damages.
The Second Circuit makes no ruling as to how damages should be
allocated as between branded oil companies and their branded
service station franchisees, the reasonableness of the special
master's ultimate findings, or the legality of releasing an
as-of-yet hypothetical future claim; such issues must wait for a
developed factual record and a final judgment, and, as to the
breadth of the releases, the assertion by the defendants in a
future litigation of a claim of release which is challenged on the
ground that interpreting the release so broadly violates federal
law.
A full-text copy of the Court's March 15, 2023 Opinion is available
at https://tinyurl.com/58a3y4wk from Leagle.com.
NATHANIEL A. TARNOR -- nathant@hbsslaw.com -- Hagens Berman Sobol
Shapiro LLP, New York, NY (Steve W. Berman -- steve@hbsslaw.com --
Hagens Berman Sobol Shapiro LLP, Seattle, WA, on the brief), for
Objectors-Appellants Fikes Wholesale, Inc., et al.
N. ALBERT BACHARACH, JR. (Paul S. Rothstein --
contact@rothsteinforjustice.com -- on the brief), Gainesville, FL,
for Objectors-Appellants Jack Rabbit, LLC, et al.
KENDRICK JAN -- kj@jan-law.com -- San Diego, CA, for
Objectors-Appellants Gnarlywood LLC, et al.
JOHN J. PENTZ, Sudbury, MA, for Objectors-Appellants Pets USA LLC,
et al.
C. Benjamin Nutley, Pasadena, CA, and John W. Davis, Tampa, FL, for
Objector-Appellant Kevan McLaughlin
PATRICK J. COUGHLIN, (Joseph D. Daley -- joed@rgrdlaw.com --
Alexandra S. Bernay -- xanb@rgrdlaw.com -- and Carmen A. Medici, on
the brief) Robbins Geller Rudman & Dowd LLP, San Diego, CA; K.
Craig Wildfang, Thomas J. Undlin, Ryan W. Marth, Robins Kaplan LLP,
Minneapolis, MN; H. Laddie Montague, Jr., Merrill G. Davidoff,
Michael J. Kane, Berger Montague PC, Philadelphia, PA, for the
Plaintiffs-Appellees.
KANNON K. SHANMUGAM -- kshanmugam@paulweiss.com -- (Kenneth A.
Gallo -- kgallo@paulweiss.com -- Jessica Anne Morton, Stacie M.
Fahsel, on the brief) Paul, Weiss, Rifkind, Wharton & Garrison LLP,
Washington, DC; Gary R. Carney -- gcarney@paulweiss.com -- Elyssa
E. Abuhoff, Paul, Weiss, Rifkind, Wharton & Garrison LLP, New York,
NY, for the Defendants-Appellees.
INDEPENDENT LIVING: Cliver Files Suit in S.D. Florida
-----------------------------------------------------
A class action lawsuit has been filed against Independent Living
Systems, LLC. The case is styled as Michael Cliver, Mary Cliver,
individually and on behalf of all others similarly situated v.
Independent Living Systems, LLC, Case No. 1:23-cv-21134-RKA (S.D.
Fla., March 22, 2023).
The nature of suit is state as Other P.I.
Independent Living Systems -- https://ilshealth.com/ -- offers a
comprehensive range of turnkey payer services including clinical
and third-party administrative services to managed care
organizations and providers that serve high-cost, complex member
populations in the Medicare, Medicaid and Dual-Eligible
Market.[BN]
The Plaintiffs are represented by:
Brittany Leanne Brown, Esq.
David J. George, Esq.
GEORGE GESTEN MCDONALD PLLC
9897 Lake Worth Road, Ste. 302
Lake Worth, FL 33467
Phone: (561) 232-6002
Email: bbrown@4-Justice.com
dgeorge@4-justice.com
- and -
John G. Emerson, Jr., Esq.
EMERSON FIRM, PLLC
2500 Wilcrest Dr Ste 300
Houston, TX 77042
Phone: (800) 551-8649
Email: jemerson@emersonfirm.com
- and -
Lori G. Feldman, Esq.
GEORGE GESTEN MCDONALD, PLLC
102 Half Moon Bay Drive
Croton-on-Hudson, NY 10520
Phone: (917) 983-9321
Email: LFeldman@4-Justice.com
INDEPENDENT LIVING: Discloses Patients' Personal Info, Perez Says
-----------------------------------------------------------------
DAVID PEREZ, individually and on behalf of all others similarly
situated, Plaintiff v. INDEPENDENT LIVING SYSTEMS, LLC, Defendant,
Case No. 1:23-cv-21154-CMA (S.D. Fla., March 23, 2023) alleges
claims against the Defendant for negligence, negligence per se, and
declaratory judgment arising from its failure to safeguard
Plaintiff's personally identifying information or protected health
information resulting to invasion of private health matters.
On March 14, 2023, Defendant notified the Plaintiff and other
patients of its Customer-Healthcare Providers that their PII and
PHI stored on its computer systems was accessed by an unauthorized
third-party. Despite an unauthorized third-party accessing patient
PII and PHI between June 30 and July 5, 2022, ILS did not notify
impacted patients about the Data Breach until March 14, 2023, more
than eight months after the Data Breach occurred, says the suit.
According to the complaint, the harm resulting from a data and
privacy breach manifests in a number of ways, including identity
theft and financial fraud, and the exposure of a person's PII or
PHI through a data breach ensures that such person will be at a
substantially increased and certainly impending risk of identity
theft crimes compared to the rest of the population, potentially
for the rest of their lives.
As a direct and proximate result of ILS's alleged failure to
implement and follow basic security procedures, Plaintiff's and
Class Members' PII and PHI is now in the hands of cybercriminals,
says the suit.
Independent Living Systems is a Florida-based healthcare
administration and managed care solutions provider.[BN]
The Plaintiff is represented by:
Gary F. Lynch, Esq.
Nicholas A. Colella, Esq.
LYNCH CARPENTER, LLP
1133 Penn Ave., Fl. 5
Pittsburgh, PA 15222
Telephone: (412) 322-9243
Facsimile: (412) 231-0246
E-mail: gary@lcllp.com
nickc@lcllp.com
- and -
Daniel Srourian, Esq.
SROURIAN LAW FIRM, P.C.
3435 Wilshire Blvd. Suite 1710
Los Angeles, CA 90010
Telephone: (213) 474-3800
Facsimile: (213) 471-4160
E-mail: daniel@slfa.com
INVIVYD INC: Continues to Defend Brill Securities Class Suit
------------------------------------------------------------
INVIVYD 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 23, 2023, that the Company continues
to defend itself from the Brill securities class suit in the U.S.
District Court for the District of Massachusetts.
On January 31, 2023, a securities class action lawsuit captioned
Brill v. Invivyd, Inc., et. al., Case No. 1:23-CV-10254-LTS, was
filed against us and certain of our former officers in the U.S.
District Court for the District of Massachusetts. The complaint
alleges violations of Sections 10(b) and 20(a) of the Exchange Act
and Rule 10b-5 promulgated thereunder on the basis of purportedly
materially false and misleading statements and omissions concerning
ADG20's effectiveness against the Omicron variant of COVID-19.
The complaint seeks, among other things, unspecified damages,
attorneys' fees, expert fees, and other costs.
The Company believes that it has strong defenses and intend to
vigorously defend against this action.
Invivyd, Inc., f/k/a Adagio Therapeutics, Inc., is a clinical-stage
biopharmaceutical company.[BN]
JOHNSON & JOHNSON: $25MM Class Deal in Remicade Suit Has Final OK
-----------------------------------------------------------------
In the case, IN RE REMICADE ANTITRUST LITIGATION, Civil Action No.
17-cv-04326 (E.D. Pa.), Judge Karen S. Marston of the U.S. District
Court for the Eastern District of Pennsylvania grants the
Plaintiffs' Motion for Final Approval of Settlement, Plan of
Allocation and Distribution, Award of Attorneys' Fees and Expenses,
and Service Awards.
It is a consolidated, putative class indirect-purchaser antitrust
action in which Named Plaintiffs Local 295 Employer Group Welfare
Fund and National Employees Health Plan (NEHP) allege that
Defendants Johnson & Johnson and Janssen Biotech, Inc. engaged in
anticompetitive conduct related to their infliximab biologic,
Remicade, in violation of federal and state antitrust laws and
state consumer protection laws.
On Aug. 2, 2022, the Court preliminarily approved the Settlement,
the Notice Plan, and the Plan of Distribution and Allocation, and
it appointed Gilardi & Co., LLC to serve as the Settlement
Administrator. Gilardi commenced the Notice Plan on Aug. 30, 2022.
The Notice Plan used a combination of individual mailed notice and
paid notice placements in industry-related trade media to reach the
third-party payor (TPP) portion of the Settlement Class, as well as
a combination of notice placements in a well-read consumer
publication and digital notices placed on a variety of websites to
reach the consumer portion of the Settlement Class. The Notice Plan
reached virtually all TPP Settlement Class members and
approximately 80% of likely consumer Settlement Class members.
As of Oct. 27, 2022, Gilardi had received 2,222 claims filed
through the postal mail and the case website. There were 195 claims
were submitted by TPPS and 2,027 were submitted by consumers. As of
Jan. 9, 2023, Gilardi received approximately 160,227 claims filed
through postal mail and the case website; 1,771 were submitted by
TPPs and 158,506 were submitted by consumers. Gilardi did not
receive any exclusion requests.
The Settlement Agreement defined "Selected States" as encompassing
Arizona, Arkansas, California, District of Columbia, Florida,
Hawaii, Iowa, Kansas, Maine, Michigan, Minnesota, Mississippi,
Montana, Nebraska, Nevada, New Hampshire, New Mexico, New York,
North Carolina, North Dakota, Oregon, Rhode Island, South Dakota,
Tennessee, Utah, Vermont, West Virginia, and Wisconsin. On Dec. 8,
2022, the parties filed an Amended Plan of Allocation and
Distribution, which the Court approved that same day. The Court
also directed the Plaintiffs to post the Order and Amended Plan of
Allocation and Distribution to the case website.
The Defendants will deposit $25 million into a Settlement Fund for
the benefit of the Class. The Net Settlement Fund (which is the
Settlement Fund, less attorneys' fees and expenses, service awards,
settlement administration costs, and taxes) will be distributed to
the Class pursuant to the (now Amended) Plan of Allocation and
Distribution.
Under the Amended Plan of Allocation and Distribution, the Selected
States were amended to also include Illinois and Massachusetts.
Massachusetts, however, is only considered a Selected State with
respect to claims filed by consumers whose Remicade purchases were
made only for personal use. The three categories set forth in the
Amended Plan for determining Class Members' pro rata allocations
are identical to the categories set forth in the original Plan of
Allocation and Distribution.
Although the claims period ended for Settlement Class on Nov. 30,
2022, the Amended Plan extended the Notice and claim filing period
for Massachusetts consumer and Illinois Settlement Class members.
As of Jan. 9, 2023, Gilardi received approximately 160,277 claims
filed through both postal mail and the case website, of which 1,771
were submitted by TPPS and 158,506 were submitted by consumers.
This number includes 41 Illinois TPP submissions, and 8,742
Illinois and Massachusetts consumer submissions. Of those, 15 of
the Illinois TPP submissions and 198 of the Illinois and
Massachusetts consumer submissions were submitted during the
December claim period.
In November 2022, Jose Gomez sent a letter to the Court in which he
outlined 19 objections to the Settlement. On Jan. 9, 2023, Gomez
filed amended objections. In this letter, he raised new objections
pertaining to the Court's Dec. 8, 2022 Order approving the Amended
Plan of Allocation and Distribution, clarified his original
objections, and removed resolved objections.
On Oct. 31, 2022, the Plaintiffs filed their Motion for Final
Approval of Settlement, Plan of Allocation and Distribution, and
Award of Attorneys' Fees and Expenses and Service Awards. They
supplemented their motion on Jan. 9, 2023 in order to address
Gomez's objections.
The Settlement Class consists of "all persons and entities in the
United States and its territories who indirectly purchased, paid
and/or provided reimbursement for some or all of the purchase price
of Defendants' infliximab between April 5, 2016 and February 28,
2022."
For the same reasons stated in the Court's Aug. 2, 2022 Memorandum
preliminarily approving the Settlement, which Judge Marston finds
are still applicable at this stage, she concludes that this Class
continues to satisfy the requirement set forth in Rules 23(a) and
23(b). Because the requirements of Rules 23(a) and 23(b)(3) are
satisfied, she certifies the Settlement Class.
Judge Marston also finds that the Settlement is fair, reasonable,
and adequate. She overrules Gomez's objections and approves the
Settlement.
The Class Counsel requests the Court awards attorneys' fees of $7
million and costs of $2,288,388.90, and the Plaintiffs request the
Court grants each Class Representative a service award.
Judge Marston finds that (i) the requested attorneys' fees are
reasonable under both the percentage-of-recovery method and the
lodestar crosscheck and awards the Class Counsel $7 million in
fees; (ii) the expenses are reasonable and grants the Class
Counsel's request for reimbursement; and (iii) grants the request
to award NEHP $15,000 and Local 295 $15,600.
In light of the foregoing, Judge Marston is satisfied that final
approval is appropriate. Accordingly, she grants the Plaintiffs'
motion. An appropriate Order follows.
A full-text copy of the Court's March 15, 2023 Memorandum is
available at https://tinyurl.com/3h8ynvs4 from Leagle.com.
JPAY LLC: Appeals Arbitration Bid Denial in Cain Suit to 9th Cir.
-----------------------------------------------------------------
JPAY, LLC, et al. are taking an appeal from a court order denying
their motion to compel arbitration in the lawsuit entitled Adam
Cain, individually and on behalf of all others similarly situated,
Plaintiff, v. JPay, LLC, et al., Defendants, Case No.
2:21-cv-07401-FLA-AGR, in the U.S. District Court for the Central
District of California.
The nature of suit is Other Statutes - Consumer Credit.
On Nov. 19, 2021, the Defendants filed a motion to compel
arbitration, which the Plaintiff opposed on Dec. 17, 2021.
On Mar. 1, 2023, the Court denied the Defendants' motion through an
Order entered by Judge Fernando L. Aenlle-Rocha.
The appellate case is captioned Adam Cain v. JPay, LLC, et al.,
Case No. 23-55271, in the United States Court of Appeals for the
Ninth Circuit, filed on March 24, 2023.
The briefing schedule in the Appellate Case states that:
-- Appellants JPay, LLC, Metropolitan Commercial Bank and
Praxell, Inc. Mediation Questionnaire was due on March 31, 2023;
-- Appellants JPay, LLC, Metropolitan Commercial Bank and
Praxell, Inc. opening brief is due on May 25, 2023;
-- Appellee Adam Cain answering brief is due on June 26, 2023;
and
-- Appellant's optional reply brief is due 21 days after service
of the answering brief. [BN]
Plaintiff-Appellee ADAM CAIN, individually and on behalf of all
others similarly situated, is represented by:
John Burton, Esq.
THE LAW OFFICES OF JOHN BURTON
The Marine Building
128 North Fair Oaks Avenue
Pasadena, CA 91103
Telephone: (626) 449-8300
- and -
Richard E. Spoonemore, Esq.
Chris R. Youtz, Esq.
SIRIANNI YOUTZ SPOONEMORE HAMBURGER PLLC
3101 Western Avenue, Suite 350
Seattle, WA 98121
Telephone: (206) 223-0303
Defendants-Appellants JPAY, LLC, FKA JPAY, INC., et al., are
represented by:
Keith Bradley, Esq.
SQUIRE PATTON BOGGS, LLP
717 17th Street, Suite 1825
Denver, CO 80202
Telephone: (303) 830-1776
- and -
Gabriel Colwell, Esq.
SQUIRE SANDERS (US) LLP
555 South Flower Street
Los Angeles, CA 90071
Telephone: (213) 689-5126
- and -
Devin Freedman, Esq.
FREEDMAN NORMAND FRIEDLAND, LLP
1 SE 3rd Avenue, Suite 1240
Miami, FL 33131
Telephone: (305) 306-9211
JUMPSTART GAMES: Keiter Files Suit in C.D. California
-----------------------------------------------------
A class action lawsuit has been filed against JumpStart Games, Inc.
The case is styled as Rachel Keiter, Hannah Owens, individually and
on behalf of all others similarly situated v. JumpStart Games,
Inc., Case No. 2:23-cv-01545-MCS-PLA (C.D. Cal., March 1, 2023).
The nature of suit is stated as Other P.I. for Personal Injury.
JumpStart Games, Inc. -- https://www.jumpstart.com/ -- formerly
Knowledge Adventure, Inc., is an American edutainment video game
company based in Torrance, California.[BN]
The Plaintiffs are represented by:
Ari Yale Basser, Esq.
Jordan L. Lurie, Esq.
POMERANTZ LLP
1100 Glendon Avenue 15th Floor
Los Angeles, CA 90024
Phone: (310) 505-7190
Fax: (917) 463-1044
Email: abasser@pomlaw.com
jllurie@pomlaw.com
- and -
Kurt David Kessler, Esq.
Ling Yue Kuang, Esq.
William M. Audet, Esq.
AUDET AND PARTNERS, LLP
711 Van Ness Avenue Suite 500
San Francisco, CA 94102
Phone: (415) 568-2555
Fax: (415) 568-2556
Email: kkessler@audetlaw.com
lkuang@audetlaw.com
waudet@audetlaw.com
- and -
Paula R. Brown, Esq.
Timothy G. Blood, Esq.
BLOOD HURST AND O'REARDON LLP
501 West Broadway Suite 1490
San Diego, CA 92101
Phone: (619) 338-1100
Fax: (619) 338-1101
Email: pbrown@bholaw.com
tblood@bholaw.com
KONING & ASSOCIATES: Bid to Certify Class in Willis Suit Denied
---------------------------------------------------------------
In the case, TROY WILLIS, Plaintiff v. KONING & ASSOCIATES, et al.,
Defendants, Case No. 21-cv-00819-BLF (N.D. Cal.), Judge Beth Labson
Freeman of the U.S. District Court for the Northern District of
California, San Jose Division, denies the Plaintiff's motion for
class certification.
Willis filed the employment case against Defendants Koning &
Associates ("K&A") and Chris Koning, alleging violations of federal
and state statutes. The Plaintiff has moved to certify a class
including "all current and former insurance adjusters employed by
Koning & Associates from December 15, 2017 through the date of the
order granting class certification." The Defendants oppose, arguing
class certification is improper. The Court held a hearing on the
motion on Feb. 23, 2023.
As alleged in the Complaint, Willis is a former employee of K&A,
where he worked as a general insurance adjuster. He alleges that
the Defendants failed to compensate insurance adjusters for all the
time they worked. Willis states that K&A compensated class members
for hours billed to clients, not hours actually worked, and that
they improperly classified adjusters as exempt employees. He also
alleges that K&A failed to provide proper meal breaks or rest
periods and that it failed to reimburse class members for mileage.
The Plaintiff brings nine claims: (1) failure to pay overtime
compensation in violation of the Fair Labor Standards Act ("FLSA"),
29 U.S.C. Section 201 et seq.; (2) failure to pay overtime wages in
violation of California Labor Code ("Labor Code") Sections 510,
1194, 1198 and IWC Wage Order No. 4-2001, Section 3; (3) failure to
provide required meal periods in violation of Labor Code Sections
226.7, 512 and IWC Wage Order No. 4-2001, Section 11; (4) failure
to provide required rest periods in violation of Labor Code Section
226.7 and IWC Wage Order No. 4-2001, Section 12; (5) failure to
furnish accurate itemized wage statements in violation of Labor
Code Section 226(a) and IWC Wage Order No. 4-2001, Section 7; (6)
failure to pay all wages due to discharged and quitting employees
in violation of Labor Code Sections 201, 202, 203; (7) failure to
indemnify employees for necessary expenditures incurred in
violation of Labor Code Sections 406, 2802; (8) unfair and unlawful
business practices in violation of California Business &
Professions Code Section 17200, et seq.; and (9) a representative
action for civil penalties under the California Private Attorneys
General Act ("PAGA"), Labor Code Sections 2698-2699.5. The
Plaintiff seeks to represent a class and a FLSA collective.
Now before the Court is the Plaintiff's motion for class
certification.
Before addressing the merits of the class certification motion,
Judge Freeman considers the parties' evidentiary objections.
The Plaintiff objects to six declarations submitted by the
Defendants with their opposition brief. These are declarations from
K&A employees. Willis objects to these declarations on the basis
that they lack foundation and that they are irrelevant.
Judge Freeman says the information in the declarations from other
employees is relevant to whether there are common questions and
whether those common questions predominate. She overrules the
Plaintiff's objections.
The Defendants object to a declaration submitted by the Plaintiff
with his reply brief. The Plaintiff submitted a declaration from
Nancy Hamilton, a former K&A adjuster, with his reply brief. The
Defendants assert that the Court should strike this declaration
because it was improperly submitted for the first time on reply.
Judge Freeman agrees with the Defendants that the Hamilton
declaration is new evidence that was improperly submitted for the
first time on reply. She says the Plaintiff has not provided a good
reason why the declaration was not submitted with his opening
brief. Hence, she sustains this objection and strikes the
declaration of Hamilton.
Judge Freeman then turns the motion for class certification. The
Plaintiff asserts that that all four requirements of Rule 23(a) are
satisfied in the case, and that certification of a class is
appropriate under Rule 23(b)(3). The Defendants argue that the
Plaintiff has not satisfied the requirements of either Rule 23(a)
or Rule 23(b)(3).
Judge Freeman concludes that Willis has not shown that common
questions of law and fact predominate and has not satisfied the
typicality requirement. She determines that common questions do not
predominate as to misclassification. She further determines that
Willis has not satisfied typicality as to this theory of liability.
She further notes that the Plaintiff's other claims all rely on a
determination that employees were misclassified as exempt.
In addition, Judge Freeman finds that the Plaintiff does not assert
that there was a common policy that prevented adjusters from taking
meal or rest breaks, but merely that there was a lack of policy as
to meal and rest breaks at all. She determines that common
questions do not predominate as to meal and rest breaks. Instead,
she would be required to conduct individualized inquiries for each
class member to determine whether K&A complied with the meal and
rest break laws.
For the foregoing reasons, the Plaintiff's motion for class
certification is denied.
A full-text copy of the Court's March 15, 2023 Order is available
at https://tinyurl.com/ye2xjmn8 from Leagle.com.
KRATOCHVIL LAW: Faces Smith-Chester Suit Over Fraudulent Judgment
-----------------------------------------------------------------
In the class action complaint, Jamika Smith-Chester Smith,
individually and on behalf of similarly situated persons v.
Kratochvil Law, P.C. f/k/a Kratochvil & Chimko, P.C. f/k/a Chimko &
Associates, P.C.; Brent M. Kratochvil; RPM Auto sales, Inc.; 54A
Judicial District Court, in its official capacity and on behalf of
a Defendant class of Judicial District Courts, Case No.
23-cv-10664-FKB-KGA (E.D. Mich., March 22, 2023), Smith-Chester
alleges that the Defendants did not uphold their oath and did not
honor the legal system, and knowingly cheated an overburdened state
district court judicial system, to fraudulently obtain default
judgments for treble damages against the owner of an automobile for
the legally impossible act of knowingly converting their own
automobile.
Smith-Chester, on behalf of other similarly situated persons, seeks
a writ of superintending control cover the Michigan Judicial
District Courts to vacate all default judgments obtained by
Kratochvil on behalf of RPM, and perhaps other car dealership
clients.
Kratochvil Law PC's principal place of business listed with the
state of Michigan is 2567 Metropolitan Parkway, Suite 100, Sterling
Heights, MI. [BN]
The Plaintiff is represented by:
Curtis C. Warner, Esq.
85 Denison Parkway E. #186
Corning, NY 14830
Telephone (607) 438-3011
E-mail: cwarner@warner.legal
- and -
John A. Evancheck, Esq.
KELLEY & EVANCHECK, P.C.
43695 Michigan Ave.
Canton, MI 48188-2516
Telephone: (734) 397-4540
E-mail: john@kelawpc.com
KTRE1 LLC: Faces Dominguez Wage-and-Hour Lawsuit in California
--------------------------------------------------------------
The class action complaint, Abril De Hoyos Dominguez, individually
and on behalf of all others similarly situated v. KTRE1, LLC;
KTRE2, LLC; KTRE3, LLC; KTRE4, LLC; and KTRE5, LLC; and Does 1
through 50, inclusive, Case No. 37-2023-00012018-CU-OE-CTL (Cal.
Super. Ct., March 22, 2023), alleges the Defendants violations of
the California Industrial Welfare Commission Wage Orders and
applicable provisions of the California Code of Regulations, and
certain sections of the California Business & Professions Code, the
California Civil Code, California Code of Civil Procedure and
California Labor Code.
Dominguez seeks declaratory relief, injunctive relief, and
restitution of all benefits defendants have received from their
employees due to their unlawful business practices, including but
not limited to, its failure to timely provide minimum wage,
straight time, overtime, and double time compensation due for all
hours worked, failure to reimburse business expenses, failure to
maintain proper records of hours worked, failure to provide
compliant meal periods and rest breaks to their employees or
compensation in lieu thereof, and failure to provide accurate
itemized wage statements.
KTRE1, LLC is doing business as Bay View Senior Assisted Living and
was and is a California limited liability company with its
principal place of business located at 3219 Canon Street, San
Diego, CA. [BN]
The Plaintiff is represented by:
Justin E. D. Daily, Esq.
Reed Aljian, Esq.
Shelly D. Song, Esq.
DAILY ALJIAN LLP
100 Bayview Circle, Suite 5500
Newport Beach, CA 92660
Telephone: (949) 861-2524
Facsimile: (949) 269-6364
E-mail: jd@dallp.com
ra@dallp.com
ss@dallp.com
- and -
Daniel J. Hyun, Esq.
LAW OFFICE OF DANIEL J. HYUN
1100 West Town and Country Road, Suite 1250
Orange, CA 92868
Telephone: (949) 596-4782
Facsimile: (949) 528-2596
E-mail: dh@danielhyunlaw.com
KUSHNER COS: Fabo Wins in Part Bid to Dismiss Affirmative Defenses
------------------------------------------------------------------
In the case, NICHOLE FABO, J.L. BETANCOURT, ANNA SHEEHY, K.M.
KACZOR, J.P. BROWN, MOIN HYDARI, K.E. LEWIS, A.J. BRESLOW, and
ANDREW SHERMAN, on behalf of themselves and all others similarly
situated, Plaintiffs v. KUSHNER COMPANIES LLC, 89 HICKS STREET LLC,
and WESTMINSTER MANAGEMENT, LP, Defendants, Index No. 515806/17
(N.Y. Sup.), Judge Robin S. Garson of the Supreme Court, Kings
County:
a. grants in part and denies in part the Plaintiffs' motion to
dismiss the Defendants' affirmative defenses; and
b. denies parts of the Plaintiffs' motion for summary
judgment, appointment of a referee, and an award of fees,
costs, and disbursements.
The Plaintiffs, on behalf of themselves and all others similarly
situated move for an order (a) granting the Plaintiffs summary
judgment, (b) dismissing the affirmative defenses of Defendants
Kushner Cos. LLC, 89 Hicks Street LLC (the Owner) and Westminster
Management, L.P.; (c) referring the matter to a Special Referee;
and (d) awarding the Plaintiffs fees, costs and disbursements.
In this class action, the Plaintiffs are current or former tenants
of a multi-unit residential building at 89 Hicks Street in
Brooklyn. The Watchtower Bible and Tract Society purchased the
subject building in 1989 and began listing the units with the New
York State Division of Housing and Community Renewal (DHCR) as
temporarily exempt from the Rent Stabilization Law (RSL)1 and Code
(RSC).
Prior to Watchtower's purchase, as indicated in the DHCR's Initial
Registration Rent Roll Report effective April 1, 1984, the building
contained units that were registered as either rent controlled or
rent stabilized. In 2006, Watchtower sold the building to Brooklyn.
Law School for use as a dormitory, making certain units in building
temporarily exempt from rent stabilization pursuant to RSC Section
2520.11[f]. The building was thereafter sold to the Owner on April
4, 2014.
According to the complaint, despite the transfer of the property to
the Owner, which ended the temporary exemption and subjected the
building to rent stabilization, the Owner failed to register the
units and offer its first tenants rent stabilized leases, instead
offering "free market" leases with rents exceeding the legal rent
allowable under the RSL and RSC. Following commencement of the
action, the Owner ostensibly recognized that the units which were
occupied by rent stabilized tenants prior to the temporary
exemption must be returned to rent stabilized status.
Consequently, the Owner registered the units with the DHCR, reduced
the rents to the purported legal regulated rents for those units
and refunded overcharges to the tenants then in possession. With
respect to those 13 units which were registered as rent controlled
prior to the temporary exemption, the Owner offered the first
tenants of those units following its purchase of the building free
market leases with rents exceeding the $2,500 high-rent
deregulation threshold then in effect, and thereafter continued to
treat those units as properly deregulated.
In their answer, the Defendants set forth eight affirmative
defenses: failure to state a cause of action (first); statute of
limitations (second); that the Plaintiffs did not waive treble
damages, thus precluding class action certification (third); that
primary jurisdiction lies with the DHCR (fourth); failure to
exhaust administrative remedies (fifth); that following
commencement of the action, the Defendants registered the rent
stabilized the Plaintiffs' apartments, adjusted the legal regulated
rents and provided overcharge refunds (sixth); that overcharges
were not willful (seventh); and that the Plaintiffs' claims are
barred, in whole or part, by documentary evidence (eighth).
By order dated Sept. 27, 2019 (Hon. Edgar B. Walker, J.), the
action was certified as a class action.
The Plaintiffs move for summary judgment, dismissal of the
Defendants' affirmative defenses and a referee to compute the
overcharges using the "default formula" embodied in RSC Section
2522.6(b)(3).
Judge Garson finds that the Plaintiffs have not, at this juncture,
established entitlement to judgment on their complaint as a matter
of law. As a result, those parts of the Plaintiffs' motion for
summary judgment, an order referring the matter to a referee to
calculate rents using the default formula, and award of attorneys'
fees and costs are each denied.
Turning to that part of the Plaintiffs' motion for dismissal of the
Defendants' affirmative defenses, CPLR 3211(b) provides that a
party may move for judgment dismissing one or more defenses, on the
ground that a defense is not stated or has no merit.
Judge Garson denies that part of the Plaintiffs' motion seeking
dismissal of the Defendants' first cause of action for failure to
state a cause of action. No motion by a plaintiff lies under CPLR
3211(b) to strike the defense of failure to state a cause of
action, as this amounts to an endeavor by the Plaintiff to test the
sufficiency of his or her own claim.
Judge Garson then grants that part of the Plaintiffs' motion to
dismiss the second affirmative defense. She says there is no
limitations period with respect to claims seeking a declaration
that an apartment is rent stabilized.
The Defendants do not expressly oppose those parts of the
Plaintiffs' motion seeking dismissal of the third, fourth and fifth
affirmative defenses. Accordingly, the third, fourth and fifth
affirmative defenses are without merit and are dismissed.
The Defendants' sixth affirmative defense essentially sets forth
that those apartments determined to be rent stabilized were
registered with the DHCR; that affected tenants were provided with
rent stabilized leases; and that these tenants were provided
refunds of overcharges. Judge Garson finds that this affirmative
defense is not completely without merit insofar as it is applicable
to the Plaintiffs' claims regarding improper deregulation and rent
overcharge. Accordingly, that part of their motion to dismiss the
sixth affirmative defense is denied.
Lastly, the Defendants' seventh affirmative defense that the
overcharges were not willful is no longer applicable as any claim
for treble damages was waived upon certification of this matter as
a class action. Because the Plaintiffs do not address the eighth
affirmative defense (documentary evidence) in their moving papers
and memorandum of law, that part of their motion to dismiss the
eighth affirmative defense is denied.
Accordingly, Judge Garson denies those parts of the Plaintiffs'
motion for summary judgment, appointment of a referee and an award
of fees, costs and disbursements. She grants that part of the
Plaintiffs' motion to dismiss the Defendants' affirmative defenses
to the extent that the second, third, fourth, fifth and seventh
affirmative defenses are dismissed. She denies that part of the
Plaintiffs' motion to dismiss the Defendants' affirmative defenses
with respect to the remaining (first, sixth and eighth) affirmative
defenses.
The foregoing constitutes the decision and order of the Court.
A full-text copy of the Court's March 15, 2023 Order is available
at https://tinyurl.com/yckr2wwn from Leagle.com.
LABORATORY CORP: Espitia FCRA Suit Removed to C.D. Cal.
-------------------------------------------------------
The case styled KARINA ESPITIA, on behalf of herself and others
similarly situated, Plaintiff v. LABORATORY CORPORATION OF AMERICA;
and DOES 1 through 10, inclusive, Defendants, Case No. 22STCV39326,
was removed from the Superior Court of California, County of Los
Angeles, to the United States District Court for the Central
District of California on March 17, 2023.
The Clerk of Court for the Central District of California assigned
Case No. 2:23-cv-01998 to the proceeding.
The complaint alleges that Labcorp violated the Fair Credit
Reporting Act, Investigative Consumer Reporting Agencies Act, and
Consumer Credit Reporting Agencies Act by failing to provide
legally compliant disclosures and authorization forms to Plaintiff
and the putative class in relation to employment related background
investigations.
Laboratory Corporation of America is an American healthcare company
headquartered in Burlington, North Carolina.[BN]
The Defendant is represented by:
Becca J. Wahlquist, Esq.
Victor J. Sandoval, Esq.
KELLEY DRYE & WARREN LLP
350 South Grand Avenue, Suite 3800
Los Angeles, CA 90071
Telephone: (213) 547-4900
Facsimile: (213) 547-4901
E-mail: BWahlquist@kelleydrye.com
VSandoval@kelleydrye.com
LASALLE CORRECTIONS: Underpays Nurse Practitioners, Powell Claims
-----------------------------------------------------------------
DEADRA POWELL, individually and on behalf of all others similarly
situated, Plaintiff v. LASALLE CORRECTIONS, LLC, Defendant, Case
No. 2:23-cv-00391 (W.D. La., March 27, 2023) is a class action
against the Defendant for its failure to pay overtime wages for all
hours worked in excess of 40 hours in a workweek in violation of
the Fair Labor Standards Act.
Ms. Powell worked for Lasalle as a Licensed Nurse Practitioner at
Lasalle's Richwood Correctional Center in Monroe, Louisiana, from
approximately March 2016 until January 2021.
Lasalle Corrections, LLC is a developer and operator of
correctional centers, with its headquarters in Ruston, Louisiana.
[BN]
The Plaintiff is represented by:
Philip Bohrer, Esq.
Scott E. Brady, Esq.
BOHRER BRADY, LLC
8712 Jefferson Hwy., Suite B
Baton Rouge, LA 70809
Telephone: (225) 925-5297
Facsimile: (225) 231-700
E-mail: phil@borhrerbrady.com
scott@bohrerbrady.com
- and -
Michael A. Josephson, Esq.
Andrew W. Dunlap, Esq.
JOSEPHSON DUNLAP LLP
11 Greenway Plaza, Suite 3050
Houston, TX 77046
Telephone: (713) 352-1100
Facsimile: (713) 352-3300
E-mail: mjoesphson@mybackwages.com
adunlap@mybackwages.com
- and -
Richard J. (Rex) Burch, Esq.
BRUCKNER BURCH PLLC
8 Greenway Plaza, Suite 1500
Houston, TX 77046
Telephone: (713) 877-8788
Facsimile: (713) 877-8065
E-mail: rburch@brucknerburch.com
- and -
William C. (Clif) Alexander, Esq.
Austin W. Anderson, Esq.
ANDERSON ALEXANDER PLLC
101 N. Shoreline Blvd., Suite 610
Corpus Christi, TX 78401
Telephone: (361) 452-1279
Facsimile: (361) 452-1284
E-mail: clif@a2xlaw.com
austin@a2xlaw.com
LATITUDE FINANCES: Sued Over Data Breach Affecting 14-M Customers
-----------------------------------------------------------------
Josh Taylor of The Guardian reports that Latitude Financial
Services could face a class action lawsuit from some of the 14
million customers who have had their personal information exposed
in what has been dubbed Australia's largest data breach.
Law firms Gordon Legal and Hayden Stephens and Associates announced
on March 28, 2023 they would investigate a potential legal action
against Latitude over the breach.
On March 27, 2023, Latitude revealed that the extent of the breach
was much larger than initially reported, with 14 million customers
exposed in the attack and data dating back to 2005.
The documents include 7.9m Australian and New Zealand driver's
licence numbers, 53,000 passport numbers, and financial statements.
The records - 5.7m of which were held by the company before 2013 -
include names, addresses, phone numbers and dates of birth.
"It is hugely disappointing that such a significant number of
additional customers and applicants have been affected by this
incident. We apologise unreservedly," Latitude's chief executive,
Ahmed Fahour, said of the breach.
Latitude offers financing direct to customers at stores including
JB Hi-Fi, The Good Guys and Harvey Norman.
Gordon Legal partner James Naughton said the firm was investigating
how a breach of this size could occur, including the effectiveness
of Latitude's security measures.
"Latitude customers deserve to understand their legal rights and
the steps that have been taken to protect their personal data," he
said.
The home affairs minister, Clare O'Neil, said on March 27, 2023 the
incident was "deeply concerning" and the federal government had
convened the National Coordination Mechanism to bring together the
commonwealth, the states and territories for a response.
The group has met five times since 16 March on the Latitude
breach.
"Latitude Financial is cooperating with government in responding to
this incident, and we expect the company to continue to swiftly
provide the government with all information it needs," O'Neil
said.
"It remains our position that no customer should bear the cost of a
data breach and we are working with Latitude Financial to ensure
that the customers affected by this attack are protected from
immediate and future risks."
After the two previously largest breaches - Optus and Medibank -
the Albanese government passed legislation in November that allows
the Office of the Australian Information Commissioner to seek a
maximum penalty against businesses of $50m for repeated or serious
data breaches, up from $2.2m previously.
Guardian Australia asked O'Neil's office whether the attack on
Latitude was believed to be a sophisticatedone and whether Latitude
was reckless in its protection of customer data, but was directed
back to March 27, 2023's statement.
In February, the attorney general's department recommended - in its
long-awaited review of Australian privacy law - that in addition to
existing requirements that companies only collect what is
reasonably necessary and destroy data when no longer required,
companies should periodically review the time they hold personal
information for.
The report also recommends people be given the right to take legal
action as individuals for breaches of their privacy.
The department is accepting feedback on the report until 31 March
ahead of the government's response to the report.
… as 2023 gathers pace, and you're joining us from the
Philippines, we have a small favour to ask. A new year means new
opportunities, and we're hoping this year gives rise to some
much-needed stability and progress. Whatever happens, the Guardian
will be there, providing clarity and fearless, independent
reporting from around the world, 24/7.
Times are tough, and we know not everyone is in a position to pay
for news. But as we're reader-funded, we rely on the ongoing
generosity of those who can afford it. This vital support means
millions can continue to read reliable reporting on the events
shaping our world. Will you invest in the Guardian this year?
Unlike many others, we have no billionaire owner, meaning we can
fearlessly chase the truth and report it with integrity. 2023 will
be no different; we will work with trademark determination and
passion to bring you journalism that's always free from commercial
or political interference. No one edits our editor or diverts our
attention from what's most important.
With your support, we'll continue to keep Guardian journalism open
and free for everyone to read. When access to information is made
equal, greater numbers of people can understand global events and
their impact on people and communities. Together, we can demand
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Whether you give a little or a lot, your funding is vital in
powering our reporting for years to come. If you can, please
support us on a monthly basis. It takes less than a minute to set
up, and you can rest assured that you're making a big impact every
single month in support of open, independent journalism. Thank you.
[GN]
LAWLESS BEAUTY: Slade Files ADA Suit in S.D. New York
-----------------------------------------------------
A class action lawsuit has been filed against Lawless Beauty Inc.
The case is styled as Linda Slade, individually and as the
representative of a class of similarly situated persons v. Lawless
Beauty Inc., Case No. 1:23-cv-02412 (S.D.N.Y., March 22, 2023).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
LAWLESS Beauty -- https://lawlessbeauty.com/ -- is a cosmetic
company that offers clean color cosmetics focused on high-impact,
full-coverage products.[BN]
The Plaintiff is represented by:
Dan Shaked, Esq.
SHAKED LAW GROUP, P.C.
14 Harwood Court, Suite 415
Scarsdale, NY 10583
Phone: (917) 373-9128
Email: shakedlawgroup@gmail.com
LEO CHULIYA: Wang Sues Over Fraudulent IRS Filing of Wage Payment
-----------------------------------------------------------------
BIN WANG, individually and on behalf of all others similarly
situated, Plaintiff v. LEO CHULIYA, LTD d/b/a Fantasy Cuisine;
DUMPLING PLUS CORP. d/b/a Dumpling+Noodle; AUSTIN CHU a/k/a Auston
Chu a/k/a Chiahung Chu a/k/a Chia-Hung Chu a/k/a Chia Hung Chu; and
IWEN CHEN a/k/a I Wen Chen a/k/a I-Wen Chen a/k/a Yvonne Chen a/k/a
Jane Chen a/k/a Mrs. Chen, Defendants, Case No. 7:23-cv-02463
(S.D.N.Y., March 23, 2023) is a class action against the Defendants
for violation of the Internal Revenue Code by filing the Form W-2
with false information to the U.S. Internal Revenue Service
regarding the payments of wages to the Plaintiff.
The Plaintiff was employed by the Defendants as a Dim Sum Chef from
on or about September 08, 2019, to October 3, 2022.
Leo Chuliya Ltd, d/b/a Fantasy Cuisine Co., is a restaurant
operator based in Hartsdale, New York.
Dumpling Plus Corp., d/b/a Dumpling+Noodle, is a restaurant
operator based in Bronxville, New York. [BN]
The Plaintiff is represented by:
John Troy, Esq.
Aaron Schweitzer, Esq.
Tiffany Troy, Esq.
TROY LAW, PLLC
41-25 Kissena Blvd., Suite 110
Flushing, NY 11355
Telephone: (718) 762-1324
E-mail: TroyLaw@TroyPllc.com
LINCARE INC: Wins Bid to Compel Arbitration in Prostek Suit
-----------------------------------------------------------
Senior District Judge Anthony W. Ishii for the Eastern District of
California grants the Motion to Compel Arbitration filed by
Defendants Lincare, Inc., and Lincare Pharmacy Services, Inc., in
the case captioned as JENNIFER PROSTEK, individually and on behalf
of others similarly situated and aggrieved, Plaintiff v. LINCARE
INC., LINCARE PHARMACY SERVICES, INC., and DOES 1-50, inclusive,
Defendants, Case No. 1:22-CV-1530 AWI BAM, (E.D. Cal.).
The lawsuit is a putative class action lawsuit brought by Plaintiff
Jennifer Prostek against her former employers, Lincare, Inc. and
Lincare Pharmacy Services, Inc. Prostek alleges various violations
of the California Labor Code (e.g. failure to pay overtime, failure
to provide required meal periods, failure to pay minimum wages,
etc.), California's Unfair Competition Law, and California's
Private Attorney General Act.
Now, the Defendants have moved to compel arbitration of Prostek's
claims. In the motion, the Defendants argue that the Arbitration
Agreement was mutually agreed to and supported by sufficient
consideration between Lincare, Inc. and Prostek. Further, the
Arbitration Agreement states that the FAA governs, uses broad
language that covers all of the claims alleged in the Complaint,
and includes a waiver of the right to participate in, bring, or
collect money from a class, representative, collective, joint, or
consolidated action. The Arbitration Agreement is not procedurally
unconscionable since it is a stand-alone document. The Arbitration
Agreement is also not substantively unconscionable because it binds
both the Defendants and Prostek and incorporates the rules of the
American Arbitration Association. Under these circumstances,
Prostek's class claims should be dismissed and her individual
claims should be submitted to binding arbitration.
Prostek argues that the Arbitration Agreement is unconscionable
because it contains: (1) an unlawful PAGA waiver; (2) a pre-dispute
waiver in violation of Labor Code Section 206.5(a) and improperly
insulates an employer from equitable relief and paying wages
actually owed; and (3) a definition of "covered claims" that is too
one-sided.
The Court finds that "the Arbitration Agreement's broad "Covered
Claims" sections covers all claims arising out of the employment
relationship that could be brought by either the Defendants or
Prostek. The central purpose of the Arbitration Agreement is to
have nearly all employment-related disputes resolved through
arbitration. Prostek has demonstrated a single substantively
unconscionable provision that affects one cause of action -- a
representative PAGA claim. . . the substantive unconscionability,
however, can be excised from the Arbitration Agreement through
severance."
Faced with an identical situation, the Court will follow the same
course as in the case of River Cruises, Inc. v. Moriana, 142 S.Ct.
1906, 1916 (2022), where the United States Supreme Court "had no
difficulty in first severing a clause that waived the plaintiff's
right to bring a representative PAGA claim, and then enforcing the
remainder of the arbitration agreement." Accordingly, the parties
will submit all claims pending in this matter, except for the
Plaintiff's representative PAGA claim, to arbitration in accordance
with the Arbitration Agreement.
Finally, Prostek requests that the Court stay or send her
representative PAGA claim to arbitration because of the pendency of
the case styled Adolph v. Uber Techs., Inc., No. S274671, 2022 Cal.
LEXIS 5021. The Defendants acknowledge the significance of the
pending Adolph decision and do not oppose staying Prostek's
representative PAGA claim. Given the parties' agreement, the Court
finds that the appropriate course is to stay the pendency of
Prostek's representative PAGA claims. The Plaintiff's
representative PAGA claim will remain pending in this case until
the California Supreme Court issues a decision in Adolph.
A full-text copy of the Order dated March 21, 2023, is available
https://tinyurl.com/2p9aznrt from Leagle.com.
LUMEN TECHNOLOGIES: Tertanni Sues Over Deceptive Fees
-----------------------------------------------------
Paris Tertanni, individually and on behalf of all others similarly
situated v. LUMEN TECHNOLOGIES, INC. and CENTURYLINK, INC., Case
No. 2:23-cv-00335-RFB-DJA (D. Nev., March 2, 2023), is brought
arising from the Defendants' violations of the Nevada Deceptive
Trade Practices Act, through their deceptive practices of charging
internet, phone, and television customers a compulsory convenience
fee every time they use a credit or debit card to make a one-time
monthly bill payment (the "Pay-to-Pay Fee").
The Plaintiff entered into a CenturyLink Internet Subscription
Agreement (the "Subscription Agreement"), with Defendants to
purchase and use Defendants' internet services, for which Plaintiff
has made monthly payments either by credit card or checking account
transactions. The Defendants have assessed, and Plaintiff has paid,
a $3.50 Pay-to-Pay Fee for each monthly payment made by Plaintiff
using a credit card, as well as at least one payment Plaintiff made
through a checking account transaction.
The Subscription Agreement did not adequately disclose or provide
notice to Plaintiff that by entering into the Subscription
Agreement, Plaintiff would be charged a $3.50 Pay-to-Pay Fee on
every monthly payment made by credit or debit card whether that
payment is made online, by telephone, or through a live chat
representative.
Upon information and belief, hundreds, if not thousands, of
customers throughout the State of Nevada and other parts of the
United States were assessed Pay-to-Pay Fees by Defendants when
paying their monthly invoices, without those Pay-to-Pay Fees having
been adequately disclosed in customers' Subscription Agreements.
The Plaintiff brings this class action seeking recovery of actual
damages and injunctive relief against Defendants on behalf of
herself and, upon information and belief, the hundreds, if not
thousands, of similarly situated customers of Defendants who were
charged Pay-to-Pay Fees, says the complaint.
The Plaintiff entered into a Subscription Agreement with Defendants
to purchase and use certain internet services for which Plaintiff
presently pays and uses.
Lumen Technologies, Inc. doing business as CenturyLink, Inc. is a
telecommunications company that provides telephone and data
communication services, including telephone, television, and high
speed internet services, to residential and commercial consumers in
Clark County, Nevada and throughout many other parts of the United
States.[BN]
The Plaintiff is represented by:
George Haines, Esq.
FREEDOM LAW FIRM, LLC
8985 South Eastern Ave., Suite 350
Las Vegas, NV 89123
Phone: (702) 880-5554
Fax: (702) 385-5518
Email: info@freedomlawfirm.com
MATCHBOX BROS: Miller Files ADA Suit in W.D. New York
-----------------------------------------------------
A class action lawsuit has been filed against Matchbox Bros LLC.
The case is styled as Kimberly Miller, on behalf of herself and all
other persons similarly situated v. Matchbox Bros LLC, Case No.
1:23-cv-00265 (W.D.N.Y., March 23, 2023).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
MatchBoxBros -- https://matchboxbros.com/ -- is an online smoke
shop and authorized distributor of many premium brands and
top-qua.[BN]
The Plaintiff is represented by:
Jeffrey M. Gottlieb, Esq.
GOTTLIEB & ASSOCIATES
150 E. 18th Street, Suite PHR
New York, NY 10003
Phone: (212) 228-9795
Fax: (212) 982-6284
Email: jeffrey@gottlieb.legal
- and -
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
MEDIBANK PRIVATE: Faces Second Class Suit Over Data Breach
----------------------------------------------------------
Archishma Iyer in Bengaluru; Editing by Savio D'Souza of Reuters
reports that Medibank Private Ltd was slapped with a second class
action lawsuit related to its disclosures on its cyber security
systems leading up to a data breach last year, Australia's largest
health insurer said on March 29, 2023.
Last October, Medibank disclosed that a hacker had gained data of
9.7 million current and former customers and released the data on
the dark web.
The company breached its disclosure obligations by not revealing
information regarding the alleged deficiencies in its cyber
security systems, U.S.-based law firm Quinn Emanuel Urquhart &
Sullivan alleged in its class action lawsuit.
Medibank said it intends to defend itself, while Quinn Emmanuel did
not respond immediately for comment.
A similar lawsuit was filed in early February by law firm Baker &
McKenzie, which alleged a breach of contract and contraventions of
Australian consumer law.
Medibank was one of the many Australian companies that have been
targeted by hackers since September last year, with Rio Tinto and
Latitude Group the latest additions.
Medibank's shares ended 0.3% higher on March 29, 2023. The stock
has fallen about 3.8% since it disclosed the hack last October.
[GN]
META MATERIALS: Seeks Dismissal of Maltagliati Class Suit
---------------------------------------------------------
Meta Materials 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 23, 2023, that the U.S. District
Court for the Eastern District of New York took under submission
the Maltagliati securities class suit dismissal motion filed by the
Company on February 27, 2023.
On January 3, 2022, a putative securities class action lawsuit was
filed in the U.S. District Court for the Eastern District of New
York captioned Maltagliati v. Meta Materials Inc., et al., No.
1:21-cv-07203, against the Company, its Chief Executive Officer,
its Chief Financial Officer, Torchlight's former Chairman of the
Board of Directors, and Torchlight's former Chief Executive
Officer.
On January 26, 2022, a similar putative securities class action
lawsuit was filed in the U.S. District Court for the Eastern
District of New York captioned McMillan v. Meta Materials Inc., et
al., No. 1:22-cv-00463. The McMillan complaint names the same
defendants and asserts the same claims on behalf of the same
purported class as the Maltagliati complaint. The complaints,
purportedly brought on behalf of all purchasers of the Company's
publicly traded securities from September 21, 2020 through and
including December 14, 2021, assert claims under Sections 10(b) and
20(a) of the Securities Exchange Act of 1934 (the "Exchange Act")
arising primarily from a short-seller report and statements related
to our business combination with Torchlight. The complaints seek
unspecified compensatory damages and reasonable costs and expenses,
including attorneys' fees.
On July 15, 2022, the Court consolidated these actions under the
caption In re Meta Materials Inc. Securities Litigation, No.
1:21-cv-07203, appointed lead plaintiffs and approved the lead
plaintiffs’ selection of lead counsel. Lead plaintiffs filed a
consolidated complaint on August 29, 2022.
The Company moved to dismiss that complaint on October 13, 2022.
The motion was fully briefed on January 12, 2023.
The Court held a hearing on the motion to dismiss on February 27,
2023 and took the motion under submission.
Meta Materials Inc. is a developer of high-performance functional
materials and nanocomposites.
META PLATFORMS: $725M Deal in Data Privacy Suit Granted Prelim. OK
------------------------------------------------------------------
Natalie Hanson of Court News Service reports that a federal judge
on March 29, 2023 granted preliminary approval of Facebook parent
company Meta's agreement to pay $725 million to a class of millions
of people whose personal information was harvested in the Cambridge
Analytica scandal.
Meta Platforms agreed this past December to pay $725 million to
settle claims by its users that the social-media behemoth illegally
gave third parties, including political consulting firm Cambridge
Analytica, access to their private information.
The settlement marks the largest recovery ever achieved in a
data-privacy class action, and it is the most Facebook has ever
paid to resolve a private class action.
Once finally approved, the settlement will resolve dozens of
consolidated lawsuits that resulted from reports in March 2018 that
Cambridge Analytica had harvested information from up to 87 million
Facebook users. The case expanded to include broader data-sharing
practices by Facebook, with claims the company had granted numerous
third parties access to users' Facebook content without their
consent and had failed to adequately monitor these third parties'
use of that information.
Facebook sought to get the case thrown out in 2019, but Chhabria
rejected the company's argument that people who share personal data
on a social media website have no reasonable expectation of
privacy.
The plaintiffs -- all current and former Facebook users -- claimed
Cambridge Analytica was one of several to whom Facebook divulged
their sensitive information to third parties without consent.
Facebook had argued users had no legitimate privacy interest
because they willingly share their information through social
media.
U.S. District Judge Vince Chhabria shot that argument down, saying
the law firmly establishes an individuals' right to privacy when
sharing certain information with a limited audience.
On March 29, 2023, Chhabria granted a motion for preliminary
approval of the settlement, saying in an eight-page order that the
agreement on behalf of the class plaintiffs is fair.
"If the settlement agreement is not finally approved by this court,
or if such final approval is reversed or materially modified on
appeal by any court, this order (including but not limited to the
certification of the class) shall be vacated, null and void, and of
no force or effect, and Meta and settlement class representatives
shall be entitled to make any arguments for or against
certification for litigation purposes," he wrote.
Meta must put up a portion of the settlement by April 12 as an
initial deposit, and within 30 days pay all subsequent amounts for
administrative costs. By April 28, Meta shall provide information
about the class members to move forward with a notice plan.
By July 11, plaintiff lawyers must file all papers in support of
the application for the final approval order.
The plaintiffs' co-lead attorneys Lesley Weaver and Derek Loeser
said via email that they are "pleased" with Chhabria's approval of
"this historic privacy settlement of claims against Facebook" and
look forward to completing the approval process "as quickly as
possible."
Attorneys for Meta did not respond to a request for comment. [GN]
MICHAEL HARRISON: Brach Files FDCPA Suit in S.D. New York
---------------------------------------------------------
A class action lawsuit has been filed Michael Harrison. The case is
styled as Mirl Brach, individually and on behalf of all others
similarly situated v. Michael Harrison, Attorney at Law, Case No.
7:23-cv-02480 (S.D.N.Y., March 23, 2023).
The lawsuit is brought over alleged violation of the Fair Debt
Collection Practices Act.
Michael Harrison is a lawyer in Denville, New Jersey.[BN]
The Plaintiff is represented by:
Robert Thomas Yusko, Esq.
STEIN SAKS, PLLC
One University Plaza, Ste. 620
Hackensack, NJ 07601
Phone: (201) 282-6500
Email: ryusko@steinsakslegal.com
MIDDLESEX WATER: Vera Suit Remanded to New Jersey Superior Court
----------------------------------------------------------------
Judge Kevin McNulty of the U.S. District Court for the District of
New Jersey grants the Plaintiffs' motion to remand the case
captioned as VERA, et al., Plaintiffs v. MIDDLESEX WATER COMPANY,
et al., Defendants, Civ. No. 22-04446 (KM) (ESK) (D.N.J.).
The original class action complaint in this matter was filed in the
Superior Court of New Jersey, Middlesex County, in October 2021.
The Lead Plaintiffs filed a first amended complaint in November
2021, followed by a second amended complaint in April 2022.
The SAC, like the two earlier versions of the complaint, was
brought by the Plaintiffs who are New Jersey citizens, on behalf of
several proposed -- now certified -- classes and sub-classes of New
Jersey citizens who are customers of the Middlesex Water Company
(MWC). The sole defendant named in the SAC and the earlier versions
is MWC -- a New Jersey corporation with a principal place of
business in New Jersey.
On May 4, 2022, MWC filed an answer to the SAC and also filed a
third-party complaint against 3M Company. The third-party complaint
alleges that 3M is responsible for the contamination of MWC's
public drinking water supplies, as 3M sold PFOAs or products
containing PFOAs to customers in New Jersey. Afterwards, MWC
removed the matter to federal court. The notice of removal alleges
that 3M is a Delaware corporation with a principal place of
business in Minnesota.
On July 12, 2022, the Plaintiffs moved to remand the action to
state court. The Plaintiffs argue that remand is required because
the Court lacks subject matter jurisdiction. In the Plaintiffs'
view, this is a case brought by New Jersey citizens against MWC,
which is a New Jersey citizen, and all of the claims arise under
New Jersey law. Consequently, there is no federal question
presented and there is not even the minimal diversity of
citizenship sufficient to create diversity jurisdiction under Class
Action Fairness Act of 2005. Even assuming arguendo that CAFA's
diversity requirement was met, the Plaintiffs argue that remand is
nevertheless required because MWC's notice of removal was not
timely. Alternatively, even if the Court finds that diversity
jurisdiction exists and the removal was timely, the Plaintiffs
insist that remand is still appropriate because the "local
controversy" exception applies.
The Court determines that "Plaintiffs could not have filed the SAC
in federal court because it asserts neither federal claims nor
claims against a party diverse from any of the class members. MWC's
unilateral decision to file a third-party complaint against a
diverse party does not create federal jurisdiction. Nor is MWC, a
New Jersey citizen, the sort of party for whom the diversity and
removal statutes guarantee a neutral forum. Accordingly, the action
may not be removed to federal court."
There is an alternative basis for remand. The Plaintiffs assert
that MWC's notice of removal was untimely, because it was not filed
within the 30-day deadline imposed by 28 U.S.C. Section 1446. The
notice of removal recites that the third-party claim was filed on
May 4, 2022, and the notice itself was filed on July 6, 2022 --
well out of time.
The Court mentions that "CAFA provides that a class action may be
removed in accordance with the procedures set forth in 28 U.S.C.
Section 1446. . . Section 1446, in turn, provides that a notice of
removal shall be filed within 30 days after the receipt by the
defendant, through service or otherwise, of a copy of the initial
pleading setting forth the claim for relief upon which such action
or proceeding is based, or within 30 days after the service of
summons upon the defendant if such initial pleading has then been
filed in court and is not required to be served on the defendant,
whichever period is shorter." The statutory deadline is clear, and
MWC failed to comply with it.
A full-text copy of the Opinion dated March 21, 2023, is available
https://tinyurl.com/4ctakdpm from Leagle.com.
MILEA TRUCK: Santos Sues Over Auto Shop Workers' Unpaid Wages
-------------------------------------------------------------
ANTONIO SANTOS, individually and on behalf of others similarly
situated, Plaintiff v. MILEA TRUCK SALES, CORP., A New York
corporation, and BARRY MILEA, an individual, Defendants, Case No.
1:23-cv-02479 (S.D.N.Y., March 23, 2023) is a class action against
the Defendants for unpaid overtime wages pursuant to the Fair Labor
Standards Act, for violations of the New York Labor Law, and for
violations of the "spread of hours" and overtime wage orders of the
New York Commissioner of Labor, including applicable liquidated
damages, interest, attorneys' fees, and costs.
The Plaintiff worked for the Defendants from 2012 through February
2021 as an auto shop employee.
Milea Truck Sales, Corp. retails automobiles. The Company offers
new and used trucks, parts, and accessories, as well as provides
repairs and maintenance services. Milea Truck Sales serves
customers in the United States.[BN]
The Plaintiff is represented by:
Nolan Klein, Esq.
Laura Adame, Esq.
LAW OFFICES OF NOLAN KLEIN, P.A.
5550 Glades Rd., Suite 500
Boca Raton, FL 33431
Telephone: (954) 745-0588
E-mail: klein@nklegal.com
adame@nklegal.com
MINDBODY INC: Judgment Entered on Breach Claims in Stockholder Suit
-------------------------------------------------------------------
In the case, IN RE MINDBODY, INC., STOCKHOLDER LITIGATION,
Consolidated C.A. No. 2019-0442-KSJM (Del. Ch.), Judge Kathaleen
McCormick of the Court of Chancery of Delaware enters judgment in
the Plaintiffs' favor and against:
(i) Richard Stollmeyer, as to Count I for breach of fiduciary
duty; and
(ii) Vista Equity Partners Management, LLC, as to Count II.
The case arises from the 2019 acquisition of Mindbody (the
"Company") by Vista for $36.50 per share. The story begins in 2018,
when Mindbody's visionary founder, Stollmeyer, had grown frustrated
with his inability to monetize his holdings of Mindbody stock,
fearful of the volatility and fickleness of the public markets, and
uncertain about his ability to lead Mindbody through its next stage
of its growth. A sale of the Company would solve his problems, and
Stollmeyer decided it was a good time to sell.
Regrettably, Stollmeyer set the sale process in motion largely
without the involvement or knowledge of the Company's board of
directors. In August 2018, Stollmeyer met with a banker that had
close relationships with multiple private equity firms. The banker
immediately introduced Stollmeyer to one of those firms, Vista.
Stollmeyer met with Vista shortly after and told Vista that he was
looking for a "good home" for his company and its management team.
He later accepted Vista's invitation to attend the "CXO Summit" for
CEOs of ex-public companies (hence "CXO") that Vista had acquired.
At the summit, Vista made presentations advertising the immense
wealth that CXOs had achieved by selling to and working for Vista.
During the summit, Stollmeyer texted another Mindbody executive
about his "mind blowing" experience and that he "loved" Vista.
Stollmeyer quickly came to believe that selling to Vista gave him
the unique opportunity to both gain liquidity and remain as CEO in
pursuit of post-acquisition equity-based upside.
After the Vista conference, Stollmeyer's focus seemed to shift. He
no longer was interested in just any sale of the Company. He wanted
to sell to Vista. And Stollmeyer let Vista know what he wanted.
Vista responded by expressing interest in buying Mindbody.
Vista's modus operandi is speed. Vista leverages its ability to
move quickly from an expression of interest, through confirmatory
diligence, to a firm offer, thereby truncating the process and
reducing interloper risk. Vista calls it "sprinting," and for
Vista, that's good business. For a target company seeking to
maximize stockholder value, however, a truncated timeline can
present challenges. It takes time to develop alternatives to
promote competition and extract the best price. By sprinting to the
finish line, Vista seeks to prevent a target company from doing
that.
Shortly after the CXO Summit and before Vista sent its expression
of interest, the banker who introduced Stollmeyer to Vista warned
him about the firm's need for speed and the risks of rushing a sale
process. In response to this advice, Stollmeyer did not adequately
involve the Board or erect, much less adhere, to speed bumps to
ensure a value-maximizing process. Rather, Vista-smitten Stollmeyer
effectively greased the wheels for Vista by stalling the Board
process.
Vista's expression of interest came in on a Monday. Stollmeyer sent
an email to his management team on a Wednesday telling them not to
fear for their jobs and to let Stollmeyer "socialize" the topic
with the Board. On Thursday, Stollmeyer spoke for an hour with Eric
Liaw, the director representative of Institutional Venture Partners
XIII, L.P. ("IVP"). IVP was Mindbody's largest stockholder, and for
reasons of its own, IVP wanted a near-term exit. Stollmeyer checked
Vista's references on Friday. Meanwhile, Vista accelerated to deal
velocity, contracted for a detailed market study, and put itself in
a position to make a firm offer long before other bidders could
react.
It was not until the following week that Stollmeyer started
dribbling out messages about Vista's expression of interest to the
other Board members. Unaware of the full extent of Stollmeyer and
Vista's courtship, the Board did not form a transaction committee
to consider running a sale process until two weeks later.
Stollmeyer asked Liaw to chair the committee, and when Liaw began
playing a leadership role, the other directors accepted his
leadership without discussing or voting on who would serve as
chair. Liaw lobbied for the committee to hire the same banker who
had already introduced Stollmeyer to Vista, which it did.
To its credit, the transaction committee established guidelines to
cabin management's communications with potential bidders, but
Stollmeyer ignored them and tipped Vista that a formal sale process
was beginning. And the banker tipped Vista as to Stollmeyer's
target price. By the time the committee had authorized its banker
to contact financial bidders, Vista was poised to pounce.
In response to the banker's outreach, Vista made a firm offer. The
Board asked other bidders to respond promptly with best-and-final
offers of their own, but they were still in the early stages of
their work and could not respond within that timeframe. The
committee countered, and Vista raised its final bid to $1 per share
below where its deal team thought the deal price would land. Rather
than making another counter, the Board approved it.
The Plaintiffs are entities affiliated with Luxor Capital Partners,
L.P. (collectively "Luxor' or "Plaintiffs"). Those entities own the
second largest block of Mindbody stock. They filed the action on
behalf of a class of Mindbody's stockholders. They claim that
Stollmeyer and the other Board members breached their fiduciary
obligations in connection with the Merger and that Vista aided and
abetted those breaches. By the time of trial, all of the Defendants
except Stollmeyer and Vista had either settled or been dismissed.
Plaintiffs tried their claims against Stollmeyer and Vista
(together, "Defendants").
The Plaintiffs advance two main theories of breach. The first is
that Stollmeyer breached his fiduciary duties by tilting the
process in favor of Vista. The second is that Stollmeyer committed
disclosure violations by failing to disclose facts about the sale
process and omitting information concerning Mindbody's actual
revenue results.
The facts of the case offer multiple analytical frameworks to
choose from. The parties agree that one possible framework is
enhanced scrutiny under Revlon, Inc. v. MacAndrews & Forbes
Holdings, Inc. Under that standard of review, Stollmeyer loses. He
did not strive in good faith to pursue the best transaction
reasonably available. He instead pursued a fast sale to Vista to
further his personal interests. Because he tilted the sale process
in Vista's favor for personal reasons, the process did not achieve
a result that falls within the range of reasonableness.
As a remedy, the Plaintiffs seek the lost transaction price that
Vista would have paid if the process had not been tilted in its
favor. The Plaintiffs peg that figure at $40 per share.
Judge McCormick accepts the Plaintiffs' theory of liability but
rejects the evidentiary basis for a $40 per share figure. She holds
that the record demonstrates that Vista would have paid $37.50 per
share. Stollmeyer is therefore liable for $1 per share.
In contrast to Stollmeyer, Vista prevails on the sale-process
claim, but only because of a procedural foot fault. Judge McCormick
says the Plaintiffs failed to assert a claim against Vista for
aiding and abetting in the sale-process breaches until trial. The
Plaintiffs tried to fix their error through a motion to amend the
pleadings to conform to the evidence presented at the close of
trial, but to grant that motion would be prejudicial to Vista.
On the disclosure claim, however, Judge McCormick says the
Plaintiffs prevail against both Stollmeyer and Vista. The
Plaintiffs proved that Stollmeyer breached his duty of disclosure.
He failed to disclose the full extent of his involvement with
Vista, which was a material omission. The Plaintiffs proved that
Vista aided and abetted Stollmeyer's breach by failing to correct
the proxy materials to include a full and fair description of its
own interactions with Stollmeyer. Vista was contractually obligated
to review the proxy materials and inform the Company if there were
material omissions from the proxy materials. The record shows that
Vista personnel who interacted with Stollmeyer reviewed the proxy
materials. Vista knew about its own interactions, and it was
evident that Stollmeyer was not disclosing them. Vista knowingly
participated in the breach by not speaking up.
As a remedy for the disclosure claims, the Plaintiffs seek
compensatory damages calculated using a quasi-appraisal
methodology. That remedy, however, requires proof of reliance and
causation, which the Plaintiffs made no effort to demonstrate,
Judge McCormick finds. The Plaintiffs, therefore, are only entitled
to nominal damages as a remedy.
To set nominal damages, Judge McCormick's decision turns to a
venerated authority -- Weinberger v. UOP, Inc. There, Chancellor
Brown encountered similar difficulty in compensating the minority
stockholders for an obvious wrong when there was no mathematical
basis for deriving a damages figure. He reasoned that "equity will
not suffer a wrong without a remedy." The facts of that case
demonstrated that the acquirer would have paid at least $1 more for
the target, and at that price, the transaction still would be
profitable for the acquirer. Engaging in a classic exercise of
equitable discretion, he awarded nominal damages in the amount of
$1 per share.
Similar case-specific factors warrant the same relief in the
present case, Judge McCormick holds. She says the record
demonstrates that Vista had authority to bid up to $40 per share,
but that figure was a stretch. Internal Vista communications show
that Vista was prepared to increase its bid to $37.50 per share,
and the most senior person on the deal team predicted that the
bidding would end at that price. Vista's modeling demonstrates that
a deal at that price remained profitable for Vista. As in
Weinberger, Judge McCormick exercises her equitable discretion to
award damages of $1 per share for the disclosure violations.
Stollmeyer and Vista are jointly and severally liable for the
resulting amount.
The Plaintiffs are only entitled to one recovery. It makes no
difference whether Stollmeyer pays $1 per share in damages for the
sale-process claims, or whether Stollmeyer and Vista pay $1 per
share in damages for the disclosure claims.
The Plaintiffs are awarded pre- and post-judgment interest at the
legal rate, compounded monthly, with the rate varying with changes
in the reference rate. They are awarded costs as the prevailing
party.
In light of the foregoing, Judge McCormick enters judgment in the
Plaintiffs' favor and against Stollmeyer on Count I for breach of
fiduciary duty. Judgment will be entered in the Plaintiffs' favor
and against Vista as to Count II for aiding and abetting breaches
of fiduciary duty. The Defendants are jointly and severally liable
for $1 per share in damages, plus interest and costs consistent
with the Opinion. The parties will confer on a form of order
implementing this decision.
The Plaintiffs' petition for appraisal was litigated in parallel
with their breach of fiduciary duty claims. The Delaware Supreme
Court has instructed that when a merger gives rise to both a
plenary action for breach of fiduciary duty and a statutory
appraisal proceeding, the court should rule on the plenary claims
first, because a finding of liability and the resultant remedy
could moot the appraisal proceeding. Regardless of Judge
McCormick's substantive findings, she holds that the Plaintiffs are
limited to, and statutorily assured of, a single recovery. Her
decision, therefore, does not reach the appraisal claims. The
parties will confer and inform the Court whether further
proceedings to address the appraisal claims are necessary.
A full-text copy of the Court's March 15, 2023 Memorandum Opinion
is available at https://tinyurl.com/4cx6ppp2 from Leagle.com.
Joel Friedlander -- jfriedlander@friedlandergorris.com -- Jeffrey
M. Gorris -- jgorris@friedlandergorris.com -- Christopher M. Foulds
-- cfoulds@friedlandergorris.com -- FRIEDLANDER & GORRIS, P.A.,
Wilmington, Delaware; Gregory V. Varallo, Andrew E. Blumberg,
BERNSTEIN LITOWITZ BERGER & GROSSMANN LLP, Wilmington, Delaware;
Jeroen van Kwawegen, Christopher J. Orrico, BERNSTEIN LITOWITZ
BERGER & GROSSMANN LLP, New York, New York; Co-Lead Counsel for
Lead Plaintiffs and Petitioners Luxor Capital Partners, L.P., Luxor
Partners Offshore Master Fund, LP, Luxor Wavefront, LP, and Lugard
Road Capital Master Fund, LP.
Lisa A. Schmidt -- jfriedlander@friedlandergorris.com -- Robert L.
Burns -- burns@rlf.com -- Matthew D. Perri -- perri@rlf.com -- John
M. O'Toole -- otoole@rlf.com -- RICHARDS, LAYTON & FINGER, P.A,
Wilmington, Delaware; Matthew Solum, P.C., John Del Monaco, Jeffrey
R. Goldfine, KIRKLAND & ELLIS LLP, New York, New York; Counsel for
Defendants Richard Stollmeyer, Vista Equity Partners Management,
LLC, Torreys Parent, LLC, and Torreys Merger Sub, Inc., and
Respondent Mindbody, Inc.
MOMS MILK BOUTIQUE: Rhone Files ADA Suit in S.D. New York
---------------------------------------------------------
A class action lawsuit has been filed against Moms Milk Boutique,
LLC. The case is styled as Tonimarie Rhone, on behalf of herself
and all others similarly situated v. Moms Milk Boutique, LLC, Case
No. 1:23-cv-02429 (S.D.N.Y., March 22, 2023).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Mom's Milk Boutique -- https://www.momsmilkboutique.com/ -- is an
upbeat shop carrying cloth diapers, baby carriers, organic toys &
natural maternity products.[BN]
The Plaintiff is represented by:
Noor H. 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
MONDELEZ GLOBAL: Gum's Mint Label "Deceptive," Reynolds Suit Says
-----------------------------------------------------------------
ELIZABETH REYNOLDS, individually and on behalf of all others
similarly situated, Plaintiff v. MONDELEZ GLOBAL LLC, Defendant,
Case No. 5:23-cv-00087-MCR-MJF (N.D. Fla., March 27, 2023) is a
class action against the Defendant for violations of the Florida
Deceptive and Unfair Trade Practices Act and State Consumer Fraud
Acts; breaches of express warranty, implied warranty of
merchantability/fitness for a particular purpose and Magnuson Moss
Warranty Act; negligent misrepresentation; fraud; and unjust
enrichment.
According to the complaint, the Defendant is engaged in false,
deceptive, and misleading advertising, labeling, and marketing of
its chewing gum product under the Trident brand. The Defendant
promotes the product as having "Original Flavor" above a peppermint
leaf. Consumers viewing the picture of a peppermint leaf on the
Defendant's gum will expect it has a characterizing flavor of mint.
Though the front label does not contain the words "mint" or
"peppermint," mint is its characterizing flavor. The labeling is
misleading because despite the picture of a peppermint leaf, the
mint taste is from artificial flavoring, omitted from the front
label. As a result of the false and misleading representations and
omissions, the product is sold at a premium price, says the suit.
Mondelez Global LLC is a food company, with a principal place of
business in East Hanover, New Jersey, Morris County. [BN]
The Plaintiff is represented by:
Spencer Sheehan, Esq.
SHEEHAN & ASSOCIATES, PC
60 Cuttermill Rd., Ste. 412
Great Neck, NY 11021
Telephone: (516) 268-7080
E-mail: spencer@spencersheehan.com
MOSQUITO SQUAD: Court Approves Lenorowitz Class Notice Plan
-----------------------------------------------------------
Eric J. Troutman of The Czar of TCPAWorld reports that the Court
approved a notice plan in a certified TCPA class action in the case
- captioned In Lenorowitz v. Mosquito Squad, 2023 WL 2612874 (D.
Conn. March 23, 2023).
So I need to get on the road shortly–the petrified forest isn't
going to be around forever you know–but wanted to do one more
quick one for you.
Previously on Mosquito Squad - please let that be the title of a
Saturday morning cartoon one day - the Court had determined a class
of individuals who received marketing calls without PEWC was
properly certified.
But no list of numbers that were exclusively marketing was
supplied. So how do we give notice when some people who received
calls might have received only informational calls?
Correct answer is some form of "who cares" because notice is just
notice, it is not a trial and responses to notice - although they
may help limit the class - do not alter ultimate substantive
issues. Indeed, if a Defendant is smart they'd want to OVER NOTICE
so that issues arise when non-injured class members begin opting
out and to create questions of fact at trial.
But hey, what do I know?
Not what Mosquito Squad's lawyers know, apparently. They fought
tooth and nail to limit the scope of notice and… it didn't go
well.
I'll skip the blow by blow - class litigators should read the case
for themselves anyway - but it suffices to say the Plaintiff's
notice plan was adopted and the Court rejected the Defendant's
whacky
make-class-members-sign-an-affiavit-to-opt-in-at-the-notice-stage
approach.
Here is the ultimate order, which has some nuance to it around
proving cell phone and residential usage - so pay attention all ye
high craftsman of class procedure architecture:
Plaintiff's motion to approve class notice form and procedures is
granted with modification. All customers listed as Mobile numbers
on the final joint Class Notice list will receive the Class Notice;
for the 10% of individuals whose phone numbers are listed as
Landlines, they will receive both Plaintiff's Class Notice and the
affidavit form to confirm whether their landline was residential or
commercial. Defendant will reserve its right to require
confirmation that the mobile numbers actually belonged to wireless
phones rather than landlines; the exact method of that obtaining
that confirmation will be determined if this case progresses to the
claim submission stage.
The Court orders the following:
1. Defendant shall produce the unredacted call records with the
customers' names, addresses, telephone numbers, and identification
of which type of call they received to Plaintiff for purposes of
notice, under protective order to preserve customer privacy if need
be, by April 6, 2023;
2. Plaintiff and Defendant will confer and coordinate to
cross-reference the unredacted call records with Mobile Sphere's
call records, remove any numbers associated only with
non-telemarketing calls, and submit a joint proposed Class Notice
list by April 24, 2023 for the Court's final approval;
3. Also by April 24, 2023, Plaintiff shall submit a modified Class
Notice with the Claim Administrator's contact information and
website added for the Court's final approval. [GN]
MSCRIPTS LLC: Robbins Sues Over Exposure of Private Health Data
---------------------------------------------------------------
KENT ROBBINS, by and through Guardian ad Litem, SARAH ROBBINS,
individually and on behalf of all others similarly situated and the
general public, Plaintiff v. MSCRIPTS, LLC, a Delaware Limited
Liability Company, Defendant, Case No. 3:23-cv-01381 (N.D. Cal.,
March 23, 2023) is a class action against the Defendant for
negligence, breach of contract, breach of implied contract, common
law invasion of privacy, and violations of the California Unfair
Competition Law, the California Consumers Legal Remedies Act, the
California Confidentiality of Medical Information Act, the
California Consumer Records Act, and the California Consumer
Privacy Act.
On November 18, 2022, mscripts detected a misconfiguration of its
cloud storage environment that exposed client data, including
private health data, online over the past six years. A third-party
forensic investigation confirmed the cloud storage environment had
been unsecured since September 30, 2016.
On January 17, 2023, mscripts filed a notice of data breach with
the U.S. Department of Health and Human Service Office for Civil
Right yet mscripts waited until February 10, 2023, to begin
notifying patients of the incident. Medical information, like the
highly sensitive and confidential e-PHI compromised here, is some
of the most sensitive forms of personal information, as it is
immutable and cannot be changed. mscripts' egregious handling of
this confidential and sensitive protected health information
(e-PHI), which is now in the hands of bad actors, constitutes an
extreme invasion of privacy, says the suit.
The Plaintiff seeks to remedy these harms on behalf of himself and
all similarly situated individuals whose highly sensitive and
confidential e-PHI was stolen in the data breach. The Plaintiff and
Class members seek remedies including but not limited to statutory
damages, compensatory damages, and injunctive relief requiring
substantial improvements to mscripts' security systems
Plaintiff Robbins is a customer of Safeway Pharmacy, in Albertsons,
in Tehachapi, California and pays for prescriptions at that
pharmacy.
Mscripts, Cardinal Health's mobile pharmacy company, is a vendor
that contracts with pharmacies to provide mobile and web-based
prescription management solutions.[BN]
The Plaintiff is represented by:
Ronald A. Marron, Esq.
Alexis M. Wood, Esq.
Kas L. Gallucci, Esq.
LAW OFFICES OF RONALD A. MARRON
651 Arroyo Drive
San Diego, CA 92103
Telephone: (619) 696-9006
Facsimile: (619) 564-6665
E-mail: ron@consumersadvocates.com
alexis@consumersadvocates.com
kas@consumersadvocates.com
MYVAPORSTORE LLC: Vachnine Files ADA Suit in S.D. New York
----------------------------------------------------------
A class action lawsuit has been filed against MyVaporStore LLC. The
case is styled as Ness-Lee Vachnine, on behalf of himself and all
others similarly situated v. MyVaporStore LLC, Case No.
1:23-cv-02486 (S.D.N.Y., March 23, 2023).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
MyVaporStore LLC -- https://www.myvaporstore.com/ -- offers the
newest and most in-demand genuine vape devices, starter kits,
tanks, and disposable vape kits at low and discounted costs.[BN]
The Plaintiff is represented by:
Gabriel Levy, Esq.
GABRIEL A. LEVY, P.C.
1129 Northern Blvd, Suite 404
Manhasset, NY 11030
Phone: (516) 287-3458
Email: glevy@glpcfirm.com
NAT'L ASSOC. OF REALTORS: Moehrl Conspiracy Suit Certified by Court
-------------------------------------------------------------------
Mike Scarcella of Reuters reports a federal judge in Chicago on
March 29, 2023 ruled that home sellers accusing the National
Association of Realtors and a group of real estate brokerages of
conspiring to inflate commission rates can move forward as a class
action in the case is Moehrl et al v. The National Association of
Realtors et al, U.S. District Court for the Northern District of
Illinois, No. 1:19-cv-01610.
U.S. District Judge Andrea Wood's decision grants class-action
status to past home sellers seeking more than $13 billion in
damages and creates a separate class of current and future sellers
who want a court injunction that bars subsequent violations of U.S.
antitrust law.
The plaintiffs are seven home sellers. The judge's order said
membership in each class "can be expected to number in the
thousands, at minimum."
Designation as a class means the plaintiffs' can pursue large-scale
claims against the National Association of Realtors, RE/MAX LLC
(RMAX.N), Long & Foster Inc and other corporate defendants as
opposed to filing individual claims for monetary damages.
The judge's order was not a ruling on the merits of the
allegations, which can still be contested at a later stage. The
defendants have denied the conspiracy allegations.
In a statement, The National Association of Realtors said it was
"disappointed" in the decision and defended industry listing
practices.
The lawsuit challenges a requirement that sellers make "blanket
unilateral offers of compensation" to buyers' brokers when a home
goes on sale via a multiple listing service. That system puts
pressure on sellers to offer high commissions to attract buyers'
brokers, the sellers claimed.
NAR spokesperson Mantill Williams said this practice "saves sellers
time and money by having so many buyer brokers participating in
that local marketplace and thus creates a larger pool of buyers for
sellers."
A RE/MAX spokesperson said the company did not comment on pending
litigation. Long & Foster declined to comment.
The class seeking money damages includes certain home sellers who
paid a commission between March 2015 and December 2020 in states
including Texas, Florida, New Jersey, Ohio, Pennsylvania, Virginia,
North Carolina and Colorado, court filings show. [GN]
NATIONAL HEALTHCARE: Denial of Judgment Bid in Gibson Suit Upheld
-----------------------------------------------------------------
In the case, DENNIS GIBSON, INDIVIDUALLY AND ON BEHALF OF ALL
OTHERS SIMILARLY SITUATED, v. NATIONAL HEALTHCARE OF LEESVILLE,
INC., D/B/A BYRD REGIONAL HOSPITAL, Case No. 21-369, Consolidated
with No. 21-757 (La. App.), the Court of Appeal of Louisiana for
the Third Circuit, affirms the trial court's June 17, 2021 Judgment
denying Byrd's motion for summary judgment and denying its Motion
to Decertify Class.
Before the court is a consolidated writ and appeal from a June 17,
2021 Judgment denying Byrd's motion for summary judgment and
denying its Motion to Decertify Class. The class action lawsuit was
filed against Byrd for alleged violations of the Balance Billing
Act ("BBA"), specifically La.R.S. 22:1874, breach of contract,
declaratory judgment, and injunctive relief. Byrd filed a motion
for summary judgment following a recent pronouncement by the
Louisiana Supreme Court, asserting that the class representative's
claims were prescribed and a motion to decertify the class. The
trial court denied both motions. Byrd sought writs of the summary
judgment denial and appealed the motion to decertify the class. The
Court of Appeal consolidated the actions.
Mr. Gibson, Plaintiff and Class Representative, was treated at Byrd
for injuries he sustained in an automobile accident on April 25,
2011. He was insured through Blue Cross Blue Shield of Louisiana
("BCBSLA"). At the time, Mr. Gibson signed an Assignment of
Insurance Benefits/Promise to Pay. The Assignment authorized Byrd
to collect benefits, including all insurance benefits, sick
benefits, and injury benefits due because of third party liability
available to Mr. Gibson to pay for Byrd's services. Under the
Assignment, Mr. Gibson was obligated to pay any charges not covered
by my insurance company and to pay Byrd in accordance with its
regular rates and terms.
Despite being insured, Byrd labeled Mr. Gibson in a manner to
indicate that third-party liability was involved. Under this
classification, rather than billing BCBSLA, Byrd filed a medical
provider lien pursuant to La.R.S. 9:4752 on May 6, 2011, against
Mr. Gibson and Farm Bureau Insurance company, the tortfeasor's
insurer. The lien was for the undiscounted bill; a rate that
exceeded the BCBSLA contracted price. The lien was filed despite
Mr. Gibson's demands upon Byrd for it to submit his medical bills
to BCBSLA. The lien was paid in full on Dec. 1, 2011, by Farm
Bureau, and the lien was released within two weeks of payment.
Gibson filed the lawsuit on July 25, 2016, via a pleading entitled
Class Action Petition for Damages, for Breach of Contract, for
Declaratory Judgment, and for Injunctive Relief. He alleged that
Byrd violated La.R.S. 22:1874, i.e. the BBA, and violated its
contract with him by collecting or attempting to collect amounts
more than the reimbursement rate contracted with his insurer. He
further sought class certification to allow him to represent other
people similarly situated in September 2016.
Byrd filed a Motion for Summary Judgment and Exception of
Prescription in 2017, asserting, among other arguments, that no
contract or agreement required Byrd to submit Mr. Gibson's bills to
BCBSLA instead of pursing a medical lien and that any statutory
claims under the BBA were subject to a one-year prescriptive
period. Both motions were denied. The class was then certified on
Sept. 28, 2017, and Mr. Gibson was permitted to act as class
representative. The Court of Appeal upheld the certification.
Following the Louisiana Supreme Court's decision in DePhillips v.
Hospital Services District No. 1 of Tangipahoa Parish, 19-1496 (La.
7/9/20), 340 So.3d 817, holding that the BBA claim therein was
delictual and subject to a one-year prescription period rather than
contractual with a 10-year prescription period, Byrd filed the
instant motions. Byrd alleged that Gibson's claims are delictual,
not contractual, and therefore prescribed prior to the filing of
his petition.
In moving for class decertification, Byrd asserted that the
DePhillips ruling constitutes a material change requiring
decertification or, alternatively, a revision as to how the class
is defined. After a hearing, the trial court denied both motions.
Mr. Gibson argued in opposition that his claim is not governed by
DePhillips because, unlike in DePhillips, he introduced contracts
to support his claim. He specifically referred to the Assignment to
argue that Byrd contracted or impliedly contracted not to balance
bill. Furthermore, he suggests that provisions in the Assignment
are ambiguous and must, therefore, be interpreted against Byrd.
The trial court denied Byrd's motion for summary judgment and
motion to decertify the class action with a signed judgment on June
17, 2021. Byrd then filed a writ application seeking a reversal of
the trial court's denial of summary judgment and appealed the trial
court's denial of its motion to decertify the class. Because of the
intertwining issues, the two matters were consolidated for
consideration in this appeal.
Byrd assigns the following errors with the trial court's judgment:
(1) The trial court erred in finding that Byrd failed to meet
its burden of proving that no genuine issue of material fact
existed concerning the issue of prescription.
(2) The trial court erred in denying Byrd's Motion for Summary
Judgment.
(3) The trial court abused its discretion in denying Byrd's
Motion to Decertify Class.
In its motion for summary judgment, Byrd sought to have Mr.
Gibson's claims dismissed as prescribed. Based on this conclusion,
in its motion for decertification, Byrd asserts that because Mr.
Gibson's claims were prescribed when he filed suit, and he is the
only class representative, the class action must be decertified.
Thus, to get to the question on appeal in docket number 21-757, the
Court of Appeal first must consider whether the trial court
properly denied Byrd's motion for summary judgment.
The Court of Appeal finds that the trial court's denial of Byrd's
motion for summary judgment in docket number 21-369 was proper.
Based on the documents admitted, it cannot conclude on summary
judgment that Byrd is under no contractual obligation to file a
claim with Mr. Gibson's medical insurer before, or instead of,
filing a medical lien against the patient. Additionally, regarding
Mr. Gibson's BBA claims, that issue was remanded to the trial court
for an evidentiary hearing to consider the issue of when
prescription begins to run.
The Court of Appeal further cannot say that the trial court abused
its discretion in denying Byrd's motion to decertify the class. It
notes that numerosity is not determined solely by finding a
specific number of plaintiffs exist but is a consideration of "the
facts and circumstances of each individual case. The class action
petition pursues the same claims as Mr. Gibson pursues.
For these reasons, the judgment of the trial court denying Byrd's
motion for summary judgment and motion for decertification of the
class action certified in conjunction with Mr. Gibson's claim is
affirmed. All costs of this matter are assessed to Byrd.
A full-text copy of the Court's March 15, 2023 Memorandum Opinion &
Order is available at https://tinyurl.com/dpv8cwh from Leagle.com.
David R. Kelly -- david.kelly@bswllp.com -- Thomas R. Temple, Jr.
-- david.kelly@bswllp.com -- Chris D. Billings --
david.kelly@bswllp.com -- Breazeale, Sachse & Wilson, LLP, Post
Office Box 3197, Baton Rouge, LA 70821, (225) 387-4000, COUNSEL FOR
DEFENDANT-APPLICANT/APPELLANT National Healthcare of Leesville,
Inc. D/B/A Byrd Regional Hospital.
J. Lee Hoffass, Jr., Claude P. Devall, Donald W. McKnight, Hoffoss
Devall, LLC, 517 West College Street, Lake Charles, LA 70605, (337)
433-2053, COUNSEL FOR PLAINTIFF-RESPONDENT/APPELLEE Dennis Gibson.
Scott R. Bickford -- info@mbfirm.com -- Lawrence J. Centola, III,
Martzell, Bickford & Centola, PC, 338 Lafayette Street, New
Orleans, LA 70130, (504) 581-9065, COUNSEL FOR
PLAINTIFF-RESPONDENT/APPELLEE Dennis Gibson.
Derrick Earles, Laborde Earles Law Firm, 1901 Kaliste Saloom Road,
Lafayette, LA 70508, (337) 777-7777, COUNSEL FOR
PLAINTIFF-RESPONDENT/APPELLEE Dennis Gibson.
Edwin Dunahoe -- edwin@dunahoelaw.com -- Jared Dunahoe --
jared@dunahoelaw.com -- The Dunahoe Law Firm, Post Office Box 607,
Natchitoches, LA 71458-0607, (318) 352-1999, COUNSEL FOR
PLAINTIFF-RESPONDENT/APPELLEE Dennis Gibson.
NCINO INC: Continues to Defend Live Oak Class Suit in E.D.N.C.
--------------------------------------------------------------
nCino Inc. disclosed in its Form 10-K for the fiscal period ending
January 31, 2023 filed with the Securities and Exchange Commission
on March 28, 2023, that the Company continues to defend itself from
the Sherman Act-related putative class suit in the United States
District Court for the Eastern District of North Carolina.
On March 12, 2021, a putative class action complaint was filed in
the United States District Court for the Eastern District of North
Carolina (the "District Court"). The sole class representative in
the suit is one individual alleging a contract, combination or
conspiracy between and among the Company, Live Oak Bancshares, Inc.
("Live Oak") and Apiture, Inc. ("Apiture") not to solicit or hire
each other’s employees in violation of Section 1 of the Sherman
Act and N.C. Gen Stat. §§ 75-1 and 75-2.
The complaint seeks treble damages and additional remedies,
including restitution, disgorgement, reasonable attorneys' fees,
the costs of the suit, and pre-judgment and post judgment interest.
The complaint does not allege any specific damages.
On November 23, 2021, the District Court approved preliminary
settlements between the plaintiff and defendant Live Oak in the
amount of approximately $3.9 million, and unnamed party Apiture in
the amount of approximately $0.8 million.
Although there can be no assurance with respect to the outcome of
this matter, the Company believes the alleged claims are not
meritorious and intends to defend itself vigorously.
nCino is a financial technology company.
NETWORK RECOVERY: Starky FDCPA Suit Removed to S.D. New York
------------------------------------------------------------
The case styled as Hershy Starky, individually and on behalf of all
others similarly situated v. Network Recovery Services, Inc., Case
No. 30-02023-01302828-CU-MT-CXC was removed from the Superior Court
of California, County of Orange, to the U.S. District Court for the
Southern District of New York on March 3, 2023.
The District Court Clerk assigned Case No. 7:23-cv-01883-CS to the
proceeding.
The lawsuit is brought over alleged violation of the Fair Debt
Collection Practices Act.
Network Recovery Services, Inc. operates as a non-profit
organization. The Organization offers insurance services.[BN]
The Defendant is represented by:
James Stuart Frank, Esq.
John Houston Pope, Esq.
Lori A. Medley, Esq.
EPSTEIN BECKER & GREEN, P.C.
Third Avenue
New York, NY 10022
Phone: (212) 351-3720
Fax: (212) 878-8750
Email: jfrank@ebglaw.com
jhpope@ebglaw.com
LMedley@ebglaw.com
NISSAN NORTH: Stanley Sues Over Nissan Titan XD Trucks' Pump Defect
-------------------------------------------------------------------
NATHAN STANLEY, individually and on behalf of all others similarly
situated, Plaintiff v. NISSAN NORTH AMERICA, INC. and CUMMINS INC.,
Defendants, Case No. 3:23-cv-00261 (M.D. Tenn., March 23, 2023) is
a class action against the Defendants for breach of implied
warranty of merchantability and violations of the Magnuson-Moss
Warranty Act, the California Unfair Competition Law, and the
Consumer Legal Remedies Act.
The case arises from the Defendants' production and distribution of
diesel Nissan Titan XD trucks (MY 2016-2019) that contain the Bosch
CP4 high-pressure fuel injection pump. The CP4 pump has a fragile
and unstable design, which causes its internal metal components
with clearances on the order of 2-4 microns to rub against each
other. This friction generates metal shavings that contaminate the
fuel system, eventually leading to catastrophic engine failure with
a $10,000+ repair cost. Neither Nissan nor Cummins disclosed this
critical defect to purchasers of Class Vehicles prior to purchase.
No Plaintiff indeed, no reasonable consumer, would have purchased
or leased these vehicles if the Defendants' disclosures had been
materially truthful, says the suit.
Nissan North America, Inc. is an automobile manufacturer, with a
principal place of business in Franklin, Tennessee.
Cummins, Inc. is a manufacturer of engines, filtration, and power
generation products, headquartered in Columbus, Indiana. [BN]
The Plaintiff is represented by:
J. Gerard Stranch, IV, Esq.
James G. Stranch, III, Esq.
Michael G. Stewart, Esq.
STRANCH, JENNINGS & GARVEY, PLLC
223 Rosa L. Parks Avenue, #200
Nashville, TN 37203
Telephone: (615) 254-8801
Facsimile: (615) 255-5419
E-mail: gstranch@stranchlaw.com
jstranch@stranchlaw.com
mstewart@stranchlaw.com
- and -
Steve W. Berman, Esq.
Jerrod C. Patterson, Esq.
HAGENS BERMAN SOBOL SHAPIRO LLP
1301 Second Avenue, Suite 2000
Seattle, WA 98101
Telephone: (206) 623-7292
Facsimile: (206) 623-0594
E-mail: steve@hbsslaw.com
jerrodp@hbsslaw.com
- and -
Robert C. Hilliard, Esq.
Lauren Akers, Esq.
Bonnie J. Rickert, Esq.
HILLIARD MARTINEZ GONZALES LLP
719 S. Shoreline Blvd.
Corpus Christi, TX 78401
Telephone: (361) 882-1612
Facsimile: (361) 882-3015
E-mail: bobh@hmglawfirm.com
lakers@hmglawfirm.com
brickert@hmglawfirm.com
NORFOLK SOUTHERN: Loyd Sues Over Train Derailment, Chemical Spill
-----------------------------------------------------------------
MICHAEL LOYD; ZOEY SPELLMAN; JENNIFER GRAY, and MOORE'S TRUCKING,
individually and on behalf of all others similarly situated,
Plaintiffs v. NORFOLK SOUTHERN RAILWAY COMPANY; and NORFOLK
SOUTHERN CORP., Defendants, Case No. 4:23-cv-00626 (N.D. Ohio.,
March 23, 2023) is an action arising out of the catastrophic
derailment of a Norfolk train in East Palestine, Ohio, resulting in
the release of toxic and carcinogenic materials into the soil,
water, and air.
On February 3, 2023, Norfolk Southern train 32N, which was
comprised of roughly 150 rail cars, derailed in East Palestine. At
least 20 rail cars have been identified as carrying hazardous
substances. Cars containing vinyl chloride, butyl acrylate,
ethylhexyl acrylate, benzene, isobutylene, ethylene glycol
monobutyl ether, and other hazardous substances discussed herein
are known to have been and continue to be released to the air,
groundwater, soil, and surface waters. The releases and threatened
releases of hazardous substances also present a threat to streams
and a buried valley aquifer. The derailment has resulted in
contamination of and exposure to, at relevant times, massive
amounts of hazardous substances, says the suit.
NORFOLK SOUTHERN CORPORATION provides rail transportation services.
The Company transports raw materials, intermediate products, and
finished goods primarily in the Southeast, East, and Midwest and,
via interchange with rail carriers, to and from the rest of the
United States. [BN]
The Plaintiff is represented by:
Daniel N. Abraham, Esq.
David I. Shroyer, Esq.
Michael T. Rapier, Esq.
COLLEY SHROYER & ABRAHAM CO. LPA
536 South High Street
Columbus, OH 43215
Telephone: (614) 228-6453
Facsimile: (614) 228-7122
Email: dabraham@csajustice.com
dshroyer@csajustice.com
mrapier@csajustice.com
- and -
D. David Altman, Esq.
Justin D. Newman, Esq.
Amy J. Leonard, Esq.
ALTMANNEWMAN CO. LPA
15 East 8th Street, Suite 200W
Cincinnati, OH 45202
Telephone: (513) 721-2180
Facsimile: (513) 721-2299
Email: daltman@environlaw.com
jnewman@environlaw.com
aleonard@environlaw.com
NORFOLK SOUTHERN: Mozuch Files Suit in N.D. Ohio
------------------------------------------------
A class action lawsuit has been filed against Norfolk Southern
Corporation. The case is styled as Rosemary Mozuch, Charles Mozuch,
James Saling, Charlotte Bowers, William Bowers, Jerrie Daugherty,
individually and on behalf of all others similarly situated v.
Norfolk Southern Corporation, Norfolk Southern Railway Company,
Case No. 4:23-cv-00415-BYP (N.D. Ohio, March 1, 2023).
The nature of suit is stated as Torts to Land for Property Damage.
Norfolk Southern Corporation -- http://www.nscorp.com/-- is one of
the nation's premier transportation companies.[BN]
The Plaintiffs are represented by:
Daniel R. Karon, Esq.
LAW OFFICE OF DANIEL R. KARON
700 St. Clair Avenue, W., Ste. 200
Cleveland, OH 44113
Phone: (216) 622-1851
Fax: (216) 241-8175
Email: dkaron@karonllc.com
The Defendants are represented by:
J. Lawson Johnston, Esq.
Scott D. Clements, Esq.
DICKIE, MCCAMEY & CHILCOTE
Two PPG Place, Ste. 400
Pittsburgh, PA 15222-5402
Phone: (412) 281-7272
Fax: (888) 811-7144
Email: ljohnston@dmclaw.com
sclements@dmclaw.com
NORFOLK SOUTHERN: Smith Files Suit in N.D. Ohio
-----------------------------------------------
A class action lawsuit has been filed against Norfolk Southern
Corporation. The case is styled as Brenda Smith, Debbie Pugar, John
Pugar, Alvin Donaldson, individually, and on behalf of all others
similarly situated v. Norfolk Southern Corporation, Norfolk
Southern Railway Company, Case No. 4:23-cv-00429-BYP (N.D. Ohio,
March 2, 2023).
The nature of suit is stated as Torts to Land.
Norfolk Southern Corporation -- http://www.nscorp.com/-- is one of
the nation's premier transportation companies.[BN]
The Plaintiffs are represented by:
John G. Emerson, Jr., Esq.
EMERSON POYNTER
500 President Clinton Avenue, Ste. 305
Little Rock, AR 72201
Phone: (501) 907-2555
Fax: (501) 907-2556
- and -
Benjamin A. Gastel
HERZFELD, SUETHOLZ, GASTEL, LENISKI & WALL-NASHVILLE
223 Rosa L Parks Avenue, Ste. 300
Nashville, TN 37203
Phone: (615) 800-6225
Email: ben@hsglawgroup.com
- and -
Jeffrey A. Barrack
BARRACK, RODOS & BACINE-PHILADELPHIA
3300 Two Commerce Square
2001 Market Street
Philadelphia, PA 19103
Phone: (215) 963-0600
Email: jbarrack@barrack.com
- and -
Alyson Beridon
HERZFELD, SUETHOLZ, GASTEL, LENISKI & WALL-CINCINNATTI
425 Walnut Street, Ste. 2315
Cincinnatti, OH 45202
Phone: (513) 381-2224
Fax: (615) 255-5419
Email: alyson@hsglawgroup.com
The Defendants are represented by:
J. Lawson Johnston, Esq.
Scott D. Clements, Esq.
DICKIE, MCCAMEY & CHILCOTE
Two PPG Place, Ste. 400
Pittsburgh, PA 15222-5402
Phone: (412) 281-7272
Fax: (888) 811-7144
Email: ljohnston@dmclaw.com
sclements@dmclaw.com
NRA GROUP LLC: Ford Files FDCPA Suit in M.D. Pennsylvania
---------------------------------------------------------
A class action lawsuit has been filed against NRA Group, LLC. The
case is styled as Micalyn Ford, Richard Ismach, Richelle Stroman,
on behalf of themselves and all others similarly situated v. NRA
Group, LLC doing business as: National Recovery Agency, Case No.
1:23-cv-00505-SHR (M.D. Pa., March 22, 2023).
The lawsuit is brought over alleged violation of the Fair Debt
Collection Practices Act.
NRA Group, LLC doing business as National Recovery Agency --
https://nationalrecovery.com/ -- is a nationwide provider of
accounts receivable management.[BN]
The Plaintiffs are represented by:
Jody B. Burton, Esq.
LEMBERG LAW, LLC
43 Danbury Road, 3rd Floor
Wilton, CT 06897
Phone: (203) 653-2250
Email: jburton@lemberglaw.com
OHIO: Court Narrows Civil Rights Claims in Leach v. Gov. DeWine
---------------------------------------------------------------
In the case captioned as Anthony S. Leach, Plaintiff v. Mike
DeWine, et al., Defendants, Case No. 3:22-cv-00528 (N.D. Ohio),
Judge Jeffrey J. Helmick of the U.S. District Court for the
Northern District of Ohio dismissed in part the Plaintiff's civil
rights claims.
Pro se Plaintiff Anthony S. Leach, an Ohio prisoner currently
incarcerated at Marion Correctional Institution, filed this civil
rights action against the following Defendants: Governor Mike
DeWine; Lyneal Wainwright; Annette Chambers-Smith, Director of the
Ohio Department of Rehabilitation and Correction; Warden Harold
May; Mitzy Clark; Steven Harford; Kasey Plank, Kelly Riehle; Chris
Lambert; Tara Rees; Latonya Cotton; Daniel Straker; Don Melton;
Nicolle Wampler; James Watson; "John Does"; Theresa Smith; Lisa
Connelly; Akil Ragland; Martino F. Celli; Caleb Steinmetz; Kimberly
Baker-McGary; Richard A. Williams; Karen Stanforth; and Aramark
Corporation.
The Plaintiff's complaint consists of the following allegations:
(1) violation of the Prison Rape Elimination Act; (2) violation of
the Americans with Disabilities Act; violation of his
constitutional rights under the First, Eighth, and Fourteenth
Amendments; and "intentional infliction of physical, mental, and
emotional distress."
Pursuant to 28 U.S.C. Sections 1915(e)(2)(B) and 1915A, Judge
Helmick has dismissed the following claims: (a) PREA claims; (b)
ADA claims; (c) official capacity claims under 42 U.S.C. Section
1983; (d) supervisory liability claims; (e) First Amendment claims;
(f) Intentional Infliction of Emotional Distress claims against all
Defendants except Ragland, Williams, Celli, and Steinmetz; and (g)
any Eighth Amendment claims against Harford, Plank, Rees, Straker,
Melton, Wampler, Watson, Wainwright, Clark, John Does,
Chambers-Smith, Warden May, Smith, Connelly, Baker-McGary, and
Aramark Corporation.
This case will proceed solely on the following claims: (1)
Plaintiff's Eighth Amendment claim of deliberate indifference
against Defendant Ragland for Plaintiff's conditions of confinement
while on suicide watch; (2) Plaintiff's Eighth Amendment claims of
excessive force and denial of medical treatment following the use
of force against Defendants Williams, Celli, and Steinmetz; and (3)
Plaintiff's claims of intentional infliction of emotional distress
against Ragland, Williams, Celli, and Steinmetz.
To the extent Plaintiff purports to represent other inmates or
bring his complaint as a class action, the Plaintiff fails to state
a claim. Judge Helmick reasons that "Pro se litigants, such as the
unrepresented plaintiff in this case, can present only their own
claims, not the claims of other prisoners who would make up the
class."
Judge Helmick explains that the PREA "seeks to compile data and
statistics concerning incidences of prison rape and to adopt
standards to combat the same, it does not confer upon inmates any
extra rights outside of the normal prison grievance system. . .
PREA does not create a private cause of action that can be brought
by an individual plaintiff. Because the PREA does not provide Leach
with a private right of action, I must dismiss those claims."
Next, Judge Helmick finds that the "Plaintiff's complaint fails to
state a claim upon which relief may be granted under the ADA. . .
Plaintiff has not alleged that he was discriminated against or
otherwise denied adequate medical care (the use of his CPAP) based
on his disability." Judge Helmick reasons that "The Act would not
be violated by a prison's simply failing to attend to the medical
needs of its disabled prisoners. . . The ADA does not create a
remedy for medical malpractice."
Judge Helmick finds that the Plaintiff's official capacity claims
against the Defendants unavailing. He cites the case of Will v.
Mich. Dep't of State Police, 491 U.S. 58, 71, 109 S.Ct. 2304, 105
L. Ed. 2d 45 (1989), where the Supreme Court has held that "a suit
against a state official in his or her official capacity is not a
suit against the official but rather is a suit against the
official's office," which is "no different from a suit against the
State," Here, the Defendants are employed by the Ohio Department of
Rehabilitation and Correction, or the State of Ohio, and thus state
employees. Judge Helmick explains that "Plaintiff's official
capacity claims against these defendants are construed as claims
against the State of Ohio. . . The Eleventh Amendment bars suits
brought in federal court against a State and its agencies unless
the State has waived its sovereign immunity or consented to be sued
in federal court."
A full-text copy of the Memorandum Opinion and Order dated March
21, 2023 is available https://tinyurl.com/2p888yju from
Leagle.com.
OMEGA HEALTHCARE: Canter, Basilio Seek to Recover Unpaid OT Wages
-----------------------------------------------------------------
The class action complaint, Richard Canter and Kelly Basilio,
individually and on behalf of other members of the general public
similarly situated, v. Omega Healthcare Services, Inc. and Esther
Bervelyn Acheampong, Case No. 2:23-cv-01037-EAS-KAJ (S.D. Ohio,
March 22, 2023), seeks all available relief under the Fair Labor
Standards Act of 1938, the Ohio Minimum Fair Wage Standards Act,
and the Ohio Prompt Pay Act.
Canter and Basilio assert that Omega Healthcare Services, Inc.
failed to properly compensate them for all overtime hours worked at
one-and-one-half times their regular rates of pay because OHS
tracked hours worked at different pay rates separately for purposes
of computing overtime hours worked and overtime wages owed. They
also allege that the defendants jointly violated the Ohio Wage Act
by failing to properly maintain accurate records of all hours they
worked each workday and within each workweek.
OHS is a domestic for-profit corporation with its principal place
of business in the Southern District of Ohio. It operates a home
care staffing agency of direct care workers for those who need
in-home assistance. [BN]
The Plaintiffs are represented by:
Peter Contreras, Esq.
CONTRERAS LAW, LLC
1550 Old Henderson Road Suite 126
Columbus, OH 43220
Telephone: (614) 787-4878
Facsimile: (614) 957-7515
E-mail: peter.contreras@contrerasfirm.com
ON MY OWN: Delgado Files Suit in Cal. Super. Ct.
------------------------------------------------
A class action lawsuit has been filed against On My Own Independent
Living Services, et al. The case is styled as Laura Delgado, on
behalf of herself and all others similarly situated v. On My Own
Independent Living Services, Does 1-100, Case No.
34-2023-00336758-CU-OE-GDS (Cal. Super. Ct., Sacramento Cty., March
22, 2023).
The case type is stated as "Other Employment – Civil Unlimited."
On My Own -- https://onmyown-web.com/ -- is dedicated to providing
quality training and support for adults with developmental
disabilities and parents in Northern California.[BN]
The Plaintiff is represented by:
Jonathan Melmed, Esq.
MELMED LAW GROUP P.C.
1801 Century Park E, Ste. 850
Los Angeles, CA 90067-2346
Phone: 310-824-3828
Fax: 310-862-6851
Email: jm@melmedlaw.com
ONPOINT TESTING INC: Matney Files Suit in Cal. Super. Ct.
---------------------------------------------------------
A class action lawsuit has been filed against Onpoint Testing,
Inc., et al. The case is styled as Clarrisent Matney, Danniebette
Joy Castres, on behalf of themselves and others similarly situated
v. Onpoint Testing, Inc., Does 1-100, Case No.
34-2023-00336731-CU-OE-GDS (Cal. Super. Ct., Sacramento Cty., March
22, 2023).
The case type is stated as "Other Employment - Civil Unlimited."
Onpoint Testing, Inc. is a leader in COVID testing bringing much
needed facilities to communities around the country.[BN]
The Plaintiffs are represented by:
Vincent C. Granberry, Esq.
LAVI & EBRAHIMIAN, LLP
8889 West Olympic Boulevard, # 200
Beverly Hills, CA 90211
Phone: 310) 432-0000
ORLEANS PARISH: Exception of Prescription Denial in Johnson Upheld
------------------------------------------------------------------
In the case, JOHN JOHNSON, INDIVIDUALLY AND AS A REPRESENTATIVE OF
THE CLASS OF THOSE SIMILARLY SITUATED v. ORLEANS PARISH SCHOOL
BOARD, XYZ INSURANCE COMPANY, CITY OF NEW ORLEANS, AND ABC
INSURANCE COMPANY, Case No. 2022-CA-0731 (La. App.), the Court of
Appeal of Louisiana, Fourth Circuit, denies the John Johnson Class'
exception of prescription and affirms the trial court's judgment
granting of the John Johnson Class' exception of no right of
action.
The Appellants, Residents of Gordon Plaza, Inc. ("Corporation"),
Shannon Rainey, Marilyn Amar, Lydwina Hurst, Jesse Perkins, and
Samuel Egana "Individuals") (collectively, "Residents"), appeal the
trial court's June 22, 2022 judgment, which granted the exceptions
of no right of action, no cause of action, and res judicata filed
by Appellees, John Johnson, Individually and as a Representative of
the Class of Those Similarly Situated ("the John Johnson Class").
The John Johnson Class has filed an exception of prescription with
the Court.
From the early 1900's until approximately 1958, the City of New
Orleans leased more than one hundred acres of land in the City's
ninth ward for the operation of a municipal landfill and garbage
dump. The site, known as the Agriculture Street Landfill (ASL), was
bordered by Almonaster Boulevard on the west, Higgins Boulevard on
the north, Louisa Street on the east, and the Peoples Avenue Canal
and railroad tracks on the south. In 1965, the City reopened the
ASL site for the disposal of massive quantities of debris created
by Hurricane Betsy.
In 1967, the City and the Housing Authority of New Orleans (HANO)
entered into a cooperative agreement for the development of
residential properties in the Desire area of the City. Between 1969
and 1971, Drexel Development Corp. constructed the Press Park town
homes and apartments for HANO. HANO never advised any of the
prospective Press Park tenants or home buyers that the site had
once been a part of the City's landfill.
In the late 1970s, the City performed soil testing in the Gordon
Plaza area of the ASL neighborhood, in anticipation of the
construction of the Gordon Plaza single-family homes. The Gordon
Plaza home buyers were not told that their homes were located on
what had once been a part of the City's landfill.
In 1975, the Orleans Parish School Board (School Board) purchased a
tract of land along Abundance Street in the ASL neighborhood, with
the intent to build Moton Elementary School. In 1986-87, Moton
Elementary School opened for kindergarten through sixth grade with
an enrollment of approximately nine hundred students. The School
Board did not tell its employees or the parents of the students
that the school had been built on a part of the City's former
landfill or that environmental testing had identified the presence
of toxic materials on the site.
The Environmental Protection Agency (EPA) tested the soil in parts
of the ASL neighborhood in 1986 to determine whether the ASL site
was contaminated. Between 1985 and 1986, the Louisiana Department
of Health and the Agency for Toxic Substance Disease Registry
(ATSDR) conducted a public health screening of children in the ASL
neighborhood to determine whether there was an increased incidence
of elevated blood lead levels.
In 1993, the EPA came back to the ASL site and conducted more soil
tests throughout the neighborhood. The tests indicated that the
soil was contaminated with more than one hundred forty toxic and
hazardous materials, more than forty of which are known to cause
cancer in humans. In 1994, the School Board closed the Moton
Elementary School campus and the ASL residents formed the Concerned
Citizens of the Agriculture Street Landfill, Inc. to qualify for
federal grant funding to pay for the services of an environmental
technical advisor.
In the mid-1990s, the EPA proposed a remediation plan for the ASL
site that would remove and replace the top two feet of soil, where
possible, with a semi-permeable barrier between the clean topsoil
and the contaminated soil. The EPA rejected the requests of the ASL
residents and from 2000-2001, the EPA financed a $20 million
remediation project. It The EPA also gave the ASL residents a list
of permanent restrictions on the use of their property and advised
the ASL residents that they were responsible for maintaining the
integrity of the clean layer of topsoil and the felt-like material
that comprises the semi-permeable barrier between the clean layer
of topsoil and the ground below.
Not satisfied with the steps taken to correct the problems with the
ASL neighborhood, a number of the residents proceeded with a class
action lawsuit. The named Defendants in the action include the
City, HANO, the School Board, and HANO's insurers, National Union
Fire Insurance Company of Pittsburgh, Pennsylvania, U.S. Fire
Insurance Company, Republic Insurance Company, and South American
Insurance Company/Louisiana Insurance Guaranty Association.
The Plaintiff class has previously been defined as follows: 1)
current and former residents who have lived on the site of the
former landfill, as defined as the area bounded on the north by
Higgins Blvd., on the east by Louisa Street, on the south by
Florida Avenue and on the west by Almonaster Avenue and the Peoples
Avenue Canal, for at least twelve months prior to Feb. 1, 1994; 2)
current and former business owners and their employees who have
operated a business on the former landfill site, as described
above, for at least twelve months prior to Feb. 1, 1994; 3) current
residents who are the owners of record of their homes, or who are
buying their homes but have not yet completed their payments; and
4) former students and employees of Moton Elementary School who
attended or worked at the school on the site of the former landfill
for at least twelve months or one school year prior to Feb. 1,
1994.
On Dec. 18, 2000, the trial court signed a protective order
directing all named defendants to refrain from communicating with
class members regarding the litigation without the knowledge and
participation of the class counsel. The class counsel learned that
defendant, the City of New Orleans, was in violation of the
protective order due to discussions the City had with a few class
members about potential resolution of their buyout/relocation
requests. Therefore, on Dec. 27, 2021, the class counsel, on behalf
of the John Johnson Class, filed an emergency motion for contempt
seeking to enforce the protective order.
On Jan. 3, 2022, the Residents filed an ex parte motion for leave
to intervene and limited petition of intervention. On Feb. 4, 2022,
the John Johnson Class withdrew its motion for contempt, and
subsequently, on March 7, 2022, the Class filed exceptions of no
right of action, no cause of action, and res judicata in response
to the intervention petition.
The hearing on the Class' exceptions was held on May 24, 2022, and
the trial court granted all three exceptions. The judgment granting
the Class' exceptions was signed on June 22, 2022. The Residents
timely filed this devolutive appeal.
Regarding the exception of prescription, both the Residents and
John Johnson Class state that there is no need to remand this issue
to the trial court.
The Court of Appeal agrees. It finds that the record before it
contains the information necessary to decide the merits of this
exception. The John Johnson Class filed the motion for contempt on
Dec. 27, 2021, and on Jan. 3, 2022, the Residents filed their
motion for leave and limited petition for intervention. Throughout
their limited petition for intervention, the Residents state that
the purpose of the intervention is to oppose the contempt motion.
As pled in the petition, the filing of the motion for contempt
necessitated the Residents' need to intervene. Consequently, the
Residents could not have asserted the claims pled in their petition
prior to the filing of the contempt motion. Therefore, the
Residents' limited petition for intervention is not prescribed.
On appeal, the Residents assert that the trial court erred in
sustaining the John Johnson Class' exceptions of no right of
action, no cause of action, and res judicata. The Residents assert
two main points: (1) they meet all the legal requirements for
intervention; and (2) the John Johnson Class' exceptions have no
merit.
The Court of Appeal holds that the Residents do not have a right to
intervene in the litigation, and the trial court did not err in
granting the John Johnson Class' exception of no right of action.
As the Residents' intervention claims are not so related to the
main action that a judgment on the main action will have a direct
impact on the intervenor's rights, the requisite element of
convexity does not exist.
On appeal, the Residents also assert that the trial court erred in
granting the Class' exceptions of no cause of action and res
judicata. While the Court of Appeal notes these exceptions, it does
not need to decide whether the trial court's judgment was correct
as it has already affirmed the trial court's determination that the
Residents do not have a right of intervention in the litigation.
For these reasons, the exception of prescription is denied, and the
trial court's June 22, 2022 judgment granting the exception of no
right of action in favor of the John Johnson Class is affirmed.
A full-text copy of the Court's March 15, 2023 Order is available
at https://tinyurl.com/4cntpann from Leagle.com.
Linda Suzanna Harang, LAW OFFICES OF WARREN A. FORSTALL, JR., PLC,
320 N. Carrolton Ave, Suite 200, New Orleans, LA 70119-5111.
Joseph M. Bruno, BRUNO & BRUNO LLP, 855 Baronne Street, New
Orleans, LA 70113.
George J. G. Roux, ATTORNEY AT LAW, 823 Saint Louis Street, New
Orleans, LA 70112.
Suzette P. Bagneris -- sbagneris@bagnerislawfirm.com -- THE
BAGNERIS FIRM, LLC, 1929 Jackson Avenue, New Orleans, LA 70113.
Robin M. Primeau, MURRAY LAW FIRM, 701 Poydras Street, Suite 4250,
New Orleans, LA 70139, COUNSEL FOR THE PLAINTIFFS/APPELLEES.
Lisa W. Jordan -- wjordan@tulane.edu -- Lauren E. Godshall --
lgodshall@tulane.edu -- TULANE UNIVERSITY LAW SCHOOL, 6329 Freret
Street, New Orleans, LA 70118, COUNSEL FOR THE
INTERVENORS/APPELLANTS.
OZI 4 DELIVERY: Fails to Pay Proper Wages, Merritt et al. Allege
----------------------------------------------------------------
In the class action complaint, Crystal Merritt, Johnny Merritt,
Christopher Baudouin, and Christian Alexander Flores Hernandez, on
behalf of themselves and others similarly situated v. Ozi 4
Delivery, Inc., Mor 1 Corp., Antillana & Metro Grocery Store,
Corp., John Does 1-10, and Osvaldo Rodriguez, in both his
individual and professional capacities, Case No. 1:23-cv-02212
(E.D.N.Y., March 22, 2023), Merritt et al. allege that the
Defendants violated the Fair Labor Standards Act and the New York
Labor Law
Among other wage violations, the Defendants allegedly failed to
reimburse their delivery drivers and helpers for the work-related
expenses such as gas and maintenance costs for their delivery vans,
says the suit.
Ozi 4 Delivery is a domestic business corporation that operates as
a delivery company that regularly delivers groceries and other
goods throughout tri-state area of New York, New Jersey, and
Connecticut. [BN]
The Plaintiffs are represented by:
Alex J. Hartzband, Esq.
Taylor J. Crabill, Esq.
FARUQI & FARUQI, LLP
685 Third Avenue, 26th Floor
New York, NY 10017
Telephone: (212) 983-9330
Facsimile: (212) 983-9331
E-mail: ahartzband@faruqilaw.com
tcrabill@faruqilaw.com
PORTFOLIO RECOVERY: Grier Sues Over FDCPA Violation
---------------------------------------------------
Robert Grier, individually, and on behalf of other similarly
situated consumers v. PORTFOLIO RECOVERY ASSOCIATES, LLC., Case No.
23LA00000152 (Ill. Cir. Ct., Lake Cty., March 3, 2023), is brought
for damages arising from Defendant's violations of the Fair Debt
Collection Practices Act (hereinafter "FDCPA").
On a date better known to Defendant, Plaintiff Grier allegedly
incurred a debt. The debt was then transmitted to PRA for
collections. In an attempt to collect the debt, Defendant sent
Plaintiff a collection letter dated March 4th, 2022. The letter was
not sent from Defendant itself; Defendant utilized a third-party
vendor to send the letter. In doing so, Defendant disclosed
Plaintiff's personal information to a third party in violation of
the FDCPA, including the fact that Plaintiff owed a debt, says the
complaint.
The Plaintiff is a natural person who has resided in Highwood,
Illinois.
Portfolio Recovery Associates, LLC is a corporation that regularly
conducts business in Illinois as a "debt collector."[BN]
The Plaintiff is represented by:
Frank Venis, Esq.
VENIS & COPP LLP
231 S. LaSalle St. (Suite 2100)
Chicago, IL 60606
Phone: (312) 469-0707
Email: venis@venisandcopp.com
PROGRESSIVE DIRECT: Court Narrows Insurance Claims in Curran Suit
-----------------------------------------------------------------
Judge Nina Y. Wang of the U.S. District Court for the District of
Colorado grants in part the motion to dismiss the case captioned as
MICHAEL CURRAN, individually and on behalf of all others similarly
situated, Plaintiff v. PROGRESSIVE DIRECT INSURANCE COMPANY,
Defendant, Civil Action No. 22-cv-00878-NYW-MEH (D. Colo.).
On Aug. 12, 2021, Plaintiff Michael Curran was involved in an
automobile collision that caused physical damage to his vehicle. At
the time of the collision, Mr. Curran was insured through Defendant
Progressive Direct Insurance Company. Progressive Direct declared
Mr. Curran's vehicle to be a total loss. Pursuant to Mr. Curran's
insurance policy, Progressive Direct purported to pay Mr. Curran
the Actual Cash Value of his total loss vehicle.
In this lawsuit, Mr. Curran challenges Progressive Direct's process
by which it calculates the ACV of a total loss vehicle.
Progressive Direct challenges Mr. Curran's breach of contract
claim, arguing that Mr. Curran fails to state a breach of contract
claim because he "has failed to plead any basis for his alleged
damages under the Policy." Mr. Curran disagrees, arguing that his
allegations are sufficient because he has alleged that Progressive
"undercalculated the ACV [of his total loss vehicle] by $1,360,
meaning that it underpaid Plaintiff by $1,360."
Judge Wang agrees with Mr. Curran that he has "plausibly alleged
damages stemming from a breach of the insurance contract. He
alleges that, under the applicable insurance Policy, Defendant was
obligated to pay him the ACV of his total loss vehicle." Insofar as
the Defendant takes issue with Plaintiff's failure to allege
precise valuation numbers, Judge Wang rules that those numbers will
become more precise through the discovery process. While Mr.
Curran's allegations could have been more precise, they are
sufficient to ensure that the Defendant is placed on notice of its
alleged misconduct sufficient to prepare an appropriate defense and
are sufficient to survive the Motion to Dismiss.
Progressive Direct further argues that Mr. Curran fails to state a
claim because he "does not allege he disputed the [Projected Sold
Adjustments] at the time of the settlement of his claim, rejected
Progressive Direct's offer, or that Progressive Direct failed to
consider additional information he submitted regarding the value of
his loss vehicle." According to the Defendant, "without these
allegations, there can be no plausible inference that Progressive
Direct acted unreasonably, and certainly no inference that
Progressive Direct had knowledge of or reckless disregard that its
valuation was unreasonable." In the alternative, Progressive Direct
argues that Colorado's Total Loss Statute, Colo. Rev. Stat. Section
10-4-639, "precludes a bad-faith breach of insurance contract
claim."
Judge Wang disagrees saying that: "the crux of Plaintiff's bad
faith claim here does not arise from a duty that flows from the
Total Loss Statute. Rather, Plaintiff alleges that Defendant failed
to pay Plaintiff the ACV of his total loss vehicle as it was
contractually obligated to do, and justified doing so through
"intentionally inventing and applying Projected Sold Adjustments to
undervalue comparable vehicles, and, in turn, insureds' total-loss
vehicles." Specifically, Mr. Curran alleges that the use of
Projected Sold Adjustments is contrary to the used car industry's
market pricing and inventory management practices. Of course, the
Defendant may challenge whether the Plaintiff can establish bad
faith after having had the benefit of discovery in this case. But
at this stage in the proceedings, the Court cannot conclude that
dismissal is warranted on the current record.
Finally, Judge Wang agrees with Progressive Direct that Mr. Curran
fails to establish his standing to bring his declaratory judgment
claim. At best, Mr. Curran alleges that Progressive Direct's
unlawful common policy and general business practice of applying
Projected Sold Adjustments is ongoing. But he does not allege facts
showing a "certainly impending" injury or a "substantial risk" that
he will suffer harm in the future. Nor does he allege any facts
establishing a likelihood that he will suffer a total loss to his
vehicle in the future, such that Progressive Direct, if he does
remain insured through Defendant, will again be put in the position
to determine the ACV of his vehicle. Because Mr. Curran does not
allege facts plausibly alleging a certainly impending future injury
or a substantial risk that such harm will occur, he lacks standing
to bring his declaratory judgment claim, and as a result, the Court
lacks subject matter jurisdiction over Claim Three.
For the reasons set forth, Judge Wang rules that the (1)
Defendant's Motion to Dismiss Plaintiff's Second Amended Complaint
is granted in part and denied in part, and (2) Plaintiff's
declaratory judgment claim, Claim Three, is dismissed without
prejudice.
A full-text copy of the Order dated March 21, 2023, is available
https://tinyurl.com/25ddckrn from Leagle.com.
PROHEALTH CARE: Class Certification Order in Fotusky Suit Reversed
------------------------------------------------------------------
In the case, THOMAS FOTUSKY, Plaintiff-Respondent v. PROHEALTH
CARE, INC., Defendant-Appellant, Appeal No. 2021AP1395 (Wis. App.),
the Court of Appeals of Wisconsin, District II, reverses the
circuit court's order certifying a class action lawsuit and remands
for further proceedings consistent with its Opinion.
ProHealth appeals from a circuit court order certifying a class
action lawsuit related to its alleged violations of WIS. STAT.
Section 146.83(3f)(b) (2017-18). On appeal, it asserts the circuit
court erred, not in certifying a class, but rather in certifying
this specific class because this class, it says, is overly broad
and fails to meet the prerequisites of Wisconsin's class action
statute, WIS. STAT. Section 803.08.
Fotusky hired Welcenbach Law Offices, S.C. to represent him
regarding a personal injury he sustained in January 2017. During
that representation, Fotusky signed a HIPAA3 form authorizing his
attorneys to request copies of his medical records. His attorneys
thereafter provided ProHealth with the HIPAA authorization and
requested Fotusky's medical records on Feb. 23, 2017, and again on
May 11, 2017. ProHealth charged the attorneys $33.86 and $33.28 for
each request, respectively, both of which included certain
certification and retrieval fees. Fotusky's attorneys paid the
charges, and Fotusky thereafter reimbursed his attorneys for those
costs.
On Jan. 30, 2018, Fotusky filed a Summons and Complaint in
Milwaukee County Circuit Court case No. 2018CV832 alleging that
ProHealth, in charging his attorneys certification and retrieval
fees in response to the February and May 2017 requests, had
violated WIS. STAT. Section 146.83, which allows for certain
certification and retrieval fees only when the requester is not the
patient, or a person authorized by the patient.
Specifically, Fotusky claimed that: (1) in charging his attorneys
despite Fotusky's written authorization, ProHealth either
negligently or knowingly and willfully violated Section
146.83(3f)(b); (2) Fotusky and the proposed class members had
incurred actual damages stemming from these violations; and (3)
Fotusky and the proposed class members were entitled to recover
their actual damages, exemplary damages for each violation, and
costs and reasonable attorney fees. Fotusky also asserted a claim
for unjust enrichment and sought the return of all monies, profit,
interest, and pre-judgment interest on all sums illegally
collected.
Prior to filing its Answer, ProHealth successfully sought to
transfer venue to the Waukesha County Circuit Court and filed a
Motion to Dismiss, which the circuit court ultimately treated as a
motion for summary judgment. The circuit court denied the Motion,
ProHealth filed its Answer, and in January 2021, Fotusky filed a
motion seeking class certification. ProHealth raised numerous
arguments opposing class certification.
The circuit court held a hearing on Fotusky's Class Certification
Motion in May 2021, and it issued an oral ruling granting the
certification in July 2021. In granting the class certification,
the circuit court noted and discussed each of the prerequisites set
forth in WIS. STAT. Section 803.08(1)(a)-(d) (numerosity,
commonality, typicality, and adequacy) as well as in Section
803.08(2)(c) (predominance and superiority).
On July 30, 2021, the circuit court entered a written order
memorializing its oral ruling as required by WIS. STAT. Section
803.08(11)(a).9 Specifically, the order reiterated that Fotusky had
met the requirements of WIS. STAT. Section 803.08(1)(a)-(d) and
(2)(c).
The written order defined the certified class as follows:Any
patient or person authorized in writing who Prohealth directly, or
indirectly through an agent other than Ebix, Inc., charged a basic,
retrieval or certification fee to obtain their healthcare records
when the records were requested by the patient or by a person
authorized by the patient in the six-year period preceding the
filing of the Plaintiff's complaint.
ProHealth subsequently filed this interlocutory appeal pursuant to
WIS. STAT. Section 803.08(11)(b) asserting that the circuit court
erroneously exercised its discretion in certifying the defined
class for numerous reasons, including that the class is overbroad
and will not adequately protect class members or ProHealth's due
process rights and that the circuit court ignored the mens rea
requirements" identified in WIS. STAT. Section 146.84 as it relates
to the issues of culpability and exemplary damages for violations
of WIS. STAT. Section 146.83(3f). Notably, ProHealth does not
suggest that class certification, generally speaking, is
inappropriate, but rather asserts that the circuit court erred in
granting certification for the class as defined in the circuit
court's order.
Because the Court of Appeals concludes Fotusky cannot, as a matter
of law, establish damages pursuant to WIS. STAT. Section 146.84 for
ProHealth's purported violations of Section 146.83(3f)(b) from Dec.
1, 2015, through May 3, 2017 -- the time period when the court of
appeals' decision in Moya v. Aurora Healthcare, Inc. was binding
law (Moya I) -- the circuit court erred in certifying a class that
included certain individuals charged during that time period.
The Court of Appeals makes multiple observations as to points of
consideration for the circuit court on remand. First, it does not
appear from the Record that ProHealth charged Fotusky -- or anyone
with authorization on his behalf -- the certification and retrieval
fees at issue during the pre-Moya I time period. Thus, the circuit
court should consider whether subclasses or separate classes are
appropriate.
Second, should the circuit court conclude on remand that class
certification is appropriate, it should also ensure that the class
does not include class members who have already recovered damages
in prior litigation addressing the same claims as those addressed
here. Finally, because it does not appear that the circuit court
considered Fotusky's unjust enrichment claim in its initial class
certification analysis, the circuit court is instructed to do so on
remand.
In summary, the Court of Appeals reverses the circuit court's grant
of class certification and remands to the circuit court for further
consideration of Fotusky's Class Certification Motion consistent
with its Opinion. Additionally, on remand, the circuit court is
further instructed to exclude Fotusky's claims related to charges
issued during the time period Moya I was in effect as he cannot
establish he is entitled to damages pursuant to WIS. STAT. Section
146.84 for the fees charged to his attorneys during that time
period.
Recommended for publication in the official reports.
A full-text copy of the Court's March 15, 2023 Opinion is available
at https://tinyurl.com/343x25mu from Leagle.com.
PULSE COMMERCIALS: O'Cain Wage-and-Hour Suit Removed to C.D. Cal.
-----------------------------------------------------------------
The case styled TIMOTHY O'CAIN, an individual, individually and on
behalf of all others similarly situated, Plaintiff v. PULSE
COMMERCIALS, LLC, a Delaware Limited Liability Company; THOMAS
BENSKI, an individual; MARISA CLIFFORD, an individual; CASEY
ENGELHARDT, an individual, DOE 1 through and including DOE 10,
Defendants, Case No. 22STCV03493, was removed from the Superior
Court for the State of California, in and for the County of Los
Angeles, to the United States District Court, Central District of
California on March 23, 2023.
The Clerk of Court for the Central District of California assigned
Case No. 2:23-cv-02194 to the proceeding.
The complaint was brought on a class basis and alleged that
Defendants violated several provisions of the California Labor Code
and Industrial Wage Orders.
Pulse Commercials, LLC is a registered motor carrier based in
California.[BN]
Defendant Pulse Commercials, LLC is represented by:
Theodora R. Lee, Esq.
LITTLER MENDELSON, P.C.
Treat Towers 1255 Treat Boulevard Suite 600
Walnut Creek, CA 94597
Telephone: (925) 932-2468
Facsimile: (925) 946-9809
E-mail: tlee@littler.com
- and -
Shiva Shirazi Davoudian, Esq.
James Payer, Esq.
LITTLER MENDELSON, P.C.
2049 Century Park East, 5th Fl.
Los Angeles, CA 90067
Telephone: (310) 553-0308
Facsimile: (310) 553-5583
E-mail: sdavoudian@littler.com
jpayer@littler.com
PUNJAB, INDIA: Sikhs for Justice Sues Over Crimes Against Humanity
------------------------------------------------------------------
SIKHS FOR JUSTICE and SINGH & KAUR, on behalf of themselves and all
others similarly situated, Plaintiffs v. BHAGWANT MANN, Chief
Minister of the State of Punjab, India; BANWARILAL PUROHIT,
Governor of the State of Punjab, India; and GAURAV YADAV, Director
General of Police in Punjab, India, Defendants, Case No.
1:23-cv-02578-AT (S.D.N.Y., March 27, 2023) is a class action
against the Defendants for crimes against humanity; cruel, inhuman,
or degrading treatment or punishment; negligence, public nuisance,
battery, and negligent infliction of emotional distress.
The case arises from the ongoing severe and violent "Siege of
Punjab" in India where thousands of Sikh families have been
illegally detained, subjected to custodial torture while the whole
state of Punjab has been cut and isolated from the rest of the
world with shut down of internet to blackout information about the
ongoing human rights abuses and to carry on the persecution of the
Sikh population with impunity on account of their subscription to a
socio-religious campaign. The Defendants are liable for mental and
physical torture and wrongful deaths, under actual and apparent
authority and under color of law through the ordering and direction
of their forces and authorities to use brutal force resulting in
deaths and bodily injuries. Moreover, the Defendants are liable for
violations of customary international law, the Vienna Convention,
and the Torture Victim Protections Act, suit says.
Sikhs for Justice is a New York based human rights advocacy group.
[BN]
The Plaintiffs appear pro se.
QHCCS LLC: Smith Suit Seeks Unpaid Overtime for Registered Nurses
-----------------------------------------------------------------
SCOTT SMITH, individually and on behalf of all others similarly
situated, Plaintiff v. QHCCS, LLC d/b/a QUORUM HEALTH, Defendant,
Case No. 1:23-cv-00321-UNA (D. Del., March 23, 2023) is a class
action against the Defendant for its failure to pay overtime wages
for all hours worked in excess of 40 hours in a workweek in
violation of the Fair Labor Standards Act.
Mr. Smith worked for Quorum as a Registered Nurse (RN) at the
Mountain West Medical Center from approximately March 2013 until
January 2023.
QHCCS, LLC, doing business as Quorum Health, is a healthcare
company that maintains its headquarters in Brentwood, Tennessee.
[BN]
The Plaintiff is represented by:
Sue L. Robinson, Esq.
Brian E. Farnan, Esq.
Michael J. Farnan, Esq.
FARNAN LLP
919 N. Market St., 12th Floor
Wilmington, DE 19801
Telephone: (302) 777-0300
Facsimile: (302) 777-0301
E-mail: srobinson@farnanlaw.com
bfarnan@farnanlaw.com
mfarnan@farnanlaw.com
- and -
Michael A. Josephson, Esq.
Andrew W. Dunlap, Esq.
JOSEPHSON DUNLAP LLP
11 Greenway Plaza, Suite 3050
Houston, TX 77046
Telephone: (713) 352-1100
Facsimile: (713) 352-3300
E-mail: mjoesphson@mybackwages.com
adunlap@mybackwages.com
- and -
Richard J. (Rex) Burch, Esq.
BRUCKNER BURCH PLLC
8 Greenway Plaza, Suite 1500
Houston, TX 77046
Telephone: (713) 877-8788
Facsimile: (713) 877-8065
E-mail: rburch@brucknerburch.com
- and -
William C. (Clif) Alexander, Esq.
Austin W. Anderson, Esq.
ANDERSON ALEXANDER PLLC
101 N. Shoreline Blvd., Suite 610
Corpus Christi, TX 78401
Telephone: (361) 452-1279
Facsimile: (361) 452-1284
E-mail: clif@a2xlaw.com
austin@a2xlaw.com
QIHOO 360 TECHNOLOGY: S.D.N.Y. Narrows Claims in Altimeo Suit
-------------------------------------------------------------
Judge Paul A. Engelmayer of the U.S. District Court for the
Southern District of New York grants in part the motion to dismiss
filed by Hongyi Zhou in the case captioned as ALTIMEO ASSET
MANAGEMENT and ODS CAPITAL LLC, individually and on behalf of all
others similarly situated, Plaintiffs v. QIHOO 360 TECHNOLOGY CO.
LTD., HONGYI ZHOU, XIANGDONG QI, and ERIC X. CHEN, Defendants, Case
No. 19 Civ. 10067 (PAE), (S.D.N.Y.).
Lead plaintiffs Altimeo Asset Management and ODS Capital LLC sue on
behalf of a putative class comprised of owners of Qihoo securities
who sold shares during the class period, or who tendered those
shares for merger consideration. The Plaintiffs allege violations
of the Securities Exchange Act of 1934 and the implementing rule of
the Securities and Exchange Commission. The Plaintiffs claim that
internet company Qihoo 360 Technology Co. Ltd. and three of its
leaders carried out a scheme to depress the price of Qihoo's
American Depositary Shares and stock to enable them to pay Qihoo
shareholders an unfairly low price when they took the company
private in 2016 (the Merger). The three leaders are: Qihoo's
co-founder and chief executive officer Hongyi Zhou; co-founder and
president Xiangdong Qi; and director and special committee chair
Eric Chen.
The Plaintiffs allege that at the time the Go-Private Merger was
announced, the Defendants had a concrete plan eventually to relist
Qihoo on a Chinese stock exchange, but did not disclose this
information. The Defendants' non-disclosure of their plan to revive
Qihoo as a public company, the Plaintiffs claim, depressed the
market price of Qihoo shares, harming shareholders who (1) sold
shares in the open market before the Merger or (2) traded their
shares in at a negotiated price as part of the Merger. They allege
that Qihoo made various false and misleading statements regarding
the Merger between Dec. 18, 2015, the day the Merger was announced
in a press release, and July 15, 2016, the Merger's effective
date.
The Plaintiffs allege violations of Sections 10(b), 20(a), and 20A
of the Securities Exchange Act of 1934 and the implementing rule of
the Securities and Exchange Commission, 17 C.F.R. Section
240.10b-5.
In an earlier decision, the Court granted Qihoo and Chen's motion
to dismiss the Plaintiffs' First Amended Complaint for failure to
state a claim under Federal Rules of Civil Procedure 12(b)(6) and
9(b). The Court held that the FAC did not plausibly allege that the
Defendants, as of the Merger, had in place a concrete plan to
relist, which was the factual premise on which its claims of
material misrepresentations and omissions all turn. The Court of
Appeals for the Second Circuit vacated that decision (Altimeo Asset
Mgmt. ("Altimeo II"), 19 F.4th). The Second Circuit held that the
FAC alleged facts plausibly supporting the inference that, as of
the shareholder plan to approve the Go-Private Merger, the
Defendants had an undisclosed plan in place to relist. The Second
Circuit remanded the case for further proceedings.
Hongyi Zhou now moves to dismiss the Plaintiffs' FAC under
Fed.R.Civ.P. Rules 12(b)(6) and 9(b), making arguments both
specific to him and of broader applicability. Zhou argues that --
although the FAC has been held to plead plausibly that Qihoo's
statements not disclosing a plan to relist are actionable -- the
other three sets of statements on which it bases its claims under
Section 10(b) of the Exchange Act are not. These (1) presented the
Merger as "fair" to shareholders or in an otherwise positive light,
(2) set out the reasons for the Merger, and (3) addressed the
absence of strategic alternatives that would be more beneficial to
Qihoo shareholders. Second, Zhou argues -- with distinct analyses
for the tenderer shareholders and the seller shareholders -- that
the FAC does not plausibly allege a causal link between Qihoo's
actionable statement(s) and a shareholder loss.
The Court grants the motion to dismiss as to the Section 10(b)
claims based on the Defendants' statements concerning strategic
alternatives to the Merger. The Court determines that "there are no
facts pled suggesting that an alternative plan existed -- let alone
was viable -- whereby all shareholders could have retained their
interests in Qihoo once private so as to be able to capitalize on a
future relisting. . . The FAC's theory that the proxy materials
omitted an alternative available to shareholders thus lacks factual
support." This claim is dismissed with prejudice, as to all
Defendants.
The Court grants the motion to dismiss as to all claims on behalf
of shareholders who tendered their shares. The Court finds that
"the FAC's theory that events following the rejection of a Merger
would have transpired so as to reward plaintiffs for their shares
at a price exceeding $77/ADS is far too contingent and anchored in
guesswork to support a viable Section 10(b) claim. . . the FAC's
allegations as to loss and loss causation -- that but for the
allegedly actionable features of the proxy materials, lead
plaintiffs would have obtained more than $77/ADS share -- are too
speculative to state a plausible claim." This claim is dismissed
with prejudice, as to all Defendants.
In addition, the Court finds and concludes that the FAC's claim
under Section 20A of the Exchange Act fails "because it does not
plead a predicate insider trading violation of the Exchange Act, in
addition to pleading 'sufficient facts showing that the defendant
traded the security at issue contemporaneously with the plaintiff.'
The FAC has not plausibly -- but instead has only speculatively --
pled such a loss as to the tenderer shareholders, the only
shareholders remaining as of the time of the Merger. And the seller
shareholders who had relinquished their ADS shares prior to the
point of the Merger -- and who, by definition, could not have
traded with Zhou at the point of the Merger -- cannot claim a
cognizable loss at Zhou's hands, either." As such, Section 20A
claim is dismissed with prejudice, as to all Defendants.
The Court sustains both Section 10(b) and Section 20(a) claims
against Zhou. The Court has sustained the FAC's claims of
misstatements or omissions as to proxy material statements (1) not
disclosing the Buyer Group's intention to relist; (2) presenting
the Go-Private Merger as "fair" or in an otherwise positive light;
and (3) setting out the reasons for the Merger.
A full-text copy of the Opinion & Order dated March 21, 2023, is
available https://tinyurl.com/266k9xjb from Leagle.com.
RADNET INC: Walker Files Suit in E.D. California
------------------------------------------------
A class action lawsuit has been filed against RadNet, Inc. The case
is styled as Aquelia Walker, individually and on behalf of all
others similarly situated v. RadNet, Inc., Case No.
1:23-cv-00443-ADA-SAB (E.D. Cal., March 23, 2023).
The nature of suit is stated Other Fraud.
RadNet -- http://www.radnet.com/-- is an American radiology firm.
The company operates outpatient diagnostic imaging centers.[BN]
The Plaintiffs are represented by:
Scott Edelsberg, Esq.
EDELSBERG LAW, P.A.
1925 Century Park E., Suite 1700
Los Angeles, CA 90067
Phone: (305) 975-3320
Email: scott@edelsberglaw.com
REGENTS OF THE UNIVERSITY: Maxwell Files Suit in Cal. Super. Ct.
----------------------------------------------------------------
A class action lawsuit has been filed against The Regents of the
University of California. The case is styled as Dionne Maxwell, on
behalf of all other persons similarly situated v. The Regents of
the University of California, Case No. 34-2023-00336792-CU-BT-GDS
(Cal. Super. Ct., Sacramento Cty., March 22, 2023).
The case type is stated as "Business Tort - Civil Unlimited."
The Regents of the University of California --
http://regents.universityofcalifornia.edu/-- is the governing
board of the University of California, a state university system in
the U.S. state of California.[BN]
The Plaintiff is represented by:
L. Timothy Fisher, Esq.
BURSOR & FISHER, P.A.
1990 North California Blvd., Suite 940
Walnut Creek, CA 94596
Phone: (925) 300-4455
Fax: (925) 407-2700
Email: ltfisher@bursor.com
ROCKET MORTGAGE: Bid to Compel Arbitration or Dismiss Case Denied
-----------------------------------------------------------------
Judge Joseph N. Laplante of the U.S. District Court for the
District of New Hampshire denies the motion to compel arbitration
and motion to dismiss filed by Rocket Mortgage, LLC in the case
captioned as Richard Daschbach, et al., v. Rocket Mortgage, LLC,
Civil No. 22-cv-346-JL, (D.N.H.).
In September 2022, Richard Daschbach filed this action against
Rocket Mortgage on behalf of himself and classes of other similarly
situated consumers who allegedly received unsolicited and unwanted
phone calls or text messages from Rocket Mortgage. Daschbach
asserts six causes of action against Rocket Mortgage: four under
the Federal Telephone Consumer Protection Act and its regulations,
and two under New Hampshire's statutory telemarketing rules.
Rocket Mortgage moves under the Federal Arbitration Act for an
order compelling arbitration of all of Daschbach's claims, arguing
Daschbach accessed the website in question two separate times in
2021, "clicked" through it, submitted his personal information, and
received the requested mortgage refinance information. By taking
these actions, Rocket Mortgage contends Daschbach unambiguously
assented to the company's Terms of Use (including their mandatory
arbitration clause), which were presented to him in a reasonably
conspicuous manner. Thus, as Rocket Mortgage sees it, Daschbach's
claims must be submitted to arbitration. As a fallback, Rocket
Mortgage moves to dismiss Daschbach's First Amended Complaint for
failure to state a claim upon which relief can be granted.
The Court denies both motions. The Court finds that "Rocket
Mortgage failed to show that its Website provided reasonably
conspicuous notice of the Terms of Use and accompanying arbitration
agreement -- it has not met its burden of establishing inquiry
notice. Based on certain design elements, the website at issue does
not place a reasonably prudent internet user on notice of the Terms
of Use and arbitration clause. Daschbach therefore did not form an
enforceable arbitration agreement with Rocket Mortgage."
As for Rocket Mortgage's motion to dismiss, the Court relies on
Daschbach's allegations in the operative complaint that he received
at least four telephone calls and two text messages (all
unsolicited) from Rocket Mortgage. He has further alleged that "on
information and belief, Rocket Mortgage has placed additional
telemarketing calls to Plaintiff's cellular telephone number" in
addition to the four alleged. The Court reasonably infers from
these allegations that Rocket Mortgage called Daschbach more than
five times in one month, which exceeds the statutory threshold even
under Rocket Mortgage's interpretation of the statute. As such, the
Court finds that Daschbach has alleged minimally sufficient facts
from which the Court can reasonably infer Rocket Mortgage's
liability for each asserted claim.
A full-text copy of the Memorandum Order dated March 22, 2023, is
available https://tinyurl.com/h4d2cseu from Leagle.com.
ROGER WILLIAMS: Smith Appeals Suit Dismissal Ruling to 1st Cir.
---------------------------------------------------------------
JIMMY SMITH is taking an appeal from a court order granting in part
and denying in part defendants' motion to dismiss his lawsuit
entitled Jimmy Smith, individually and on behalf of all others
similarly situated, Plaintiff, v. Roger Williams University School
of Law, et al., Defendants, Case No. 1:21-cv-00133-PJB, in the U.S.
District Court for the District of Rhode Island.
As reported in the Class Action Reporter on April 15, 2021, the
lawsuit arose after Roger Williams Law School (RWU) purposely gave
the Plaintiff an unfair hearing and edited the Zoom hearing video
so that his rights on appeal were not as live.
Mr. Smith says that Roger Williams did not provide a fair hearing
to him during the honor board process and subjected him to
expulsion without an adequate opportunity to defend himself. His
complaints were dismissed arbitrarily.
On Apr. 10, 2022, the Defendant filed a motion to dismiss for
failure to state a claim, which the Court granted in part and
denied in part through an Order entered by Judge Paul J. Barbadoro
on Feb. 16, 2023. Accepting all of Mr. Smith's well-pleaded facts
as true, the Court found that Mr. Smith failed to state a claim for
racial discrimination but has adequately set forth facts to support
a claim for breach of contract. The Defendant's motion to dismiss
was granted as to the Plaintiff's racial discrimination claims and
denied as to Plaintiff's breach of contract claim.
The appellate case is captioned Smith v. Roger Williams University
School of Law, et al., Case No. 23-1261, in the United States Court
of Appeals for the First Circuit, filed on March 22, 2023. [BN]
Plaintiff-Appellant JIMMY SMITH, individually and on behalf of all
others similarly situated, appears pro se.
Defendants-Appellees ROGER WILLIAMS UNIVERSITY SCHOOL OF LAW, et
al., are represented by:
Steven M. Richard, Esq.
NIXON PEABODY LLP
1 Citizens Plaza, 5th Fl.
Providence, RI 02903
Telephone: (401) 454-1020
- and -
Caitlyn Smith, Esq.
NIXON PEABODY LLP
1 Citizens Plaza, 5th Fl.
Providence, RI 02903
Telephone: (401) 499-7391
- and -
Bethany N. Wong, Esq.
Lauren S. Zurier, Esq.
US ATTORNEY'S OFFICE
1 Financial Plaza, 17th Fl.
Providence, RI 02903
RYDER SYSTEM INC: Securities Suits Ongoing in FL, AK Courts
-----------------------------------------------------------
Ryder System, Inc. disclosed in its Form 10-K report for the fiscal
year ended December 31, 2022, filed with the Securities and
Exchange Commission on February 15, 2023, that starting in May 20,
2020, a putative class actions on behalf of purchasers of the
company's securities who purchased or otherwise acquired their
securities between July 23, 2015, and February 13, 2020, inclusive,
were commenced against Ryder and certain of company's current and
former officers.
In the U.S. District court for the Southern District of Florida, a
filed complaint alleged, among other things, that the defendants
misrepresented Ryder's depreciation policy and residual value
estimates for its vehicles during the Class Period in violation of
Section 10(b) and 20(a) of the Securities Exchange Act of 1934 and
Rule 10b-5 promulgated thereunder, and seeks to recover, among
other things, unspecified compensatory damages and attorneys' fees
and costs.
In August 3, 2020, the State of Alaska, Alaska Permanent Fund, the
City of Fort Lauderdale General Employees' Retirement System, and
the City of Plantation Police Officers Pension Fund were appointed
lead plaintiffs. On October 5, 2020, the lead plaintiffs filed an
amended complaint.
In December 4, 2020, Ryder and the other named defendants in the
case filed a Motion to Dismiss the amended complaint. On May 12,
2022, the court denied the defendant's motion to dismiss. The court
entered a case management schedule on June 27, 2022, which, among
other things, provides that discovery shall be completed by October
2023 and the commencement of trial in June 2024.
Ryder System, Inc. is a logistics and transportation company based
in Florida.
SAFECO INSURANCE: Dickson Files Suit in N.D. Oklahoma
-----------------------------------------------------
A class action lawsuit has been filed against Safeco Insurance
Company of America. The case is styled as Steven Dickson, Carrie
Dickson, individually and on behalf of all others similarly
situated v. Safeco Insurance Company of America, Case No.
4:23-cv-00114-TCK-JFJ (N.D. Okla., March 23, 2023).
The nature of suit is stated as Insurance for Breach of Contract.
Safeco Insurance -- http://www.safeco.com/-- a member of Liberty
Mutual Group is an American insurance company..[BN]
The Plaintiff is represented by:
Bradford D Barron, Esq.
BARRON LAW FIRM PLLC
PO BOX 369
Claremore, OK 74018
Phone: (918) 341-8402
Fax: (918) 515-4691
Email: bbarron@barronlawfirmok.com
SAINT-GOBAIN PERFORMANCE: Medical Monitoring in PFOA Suit Discussed
-------------------------------------------------------------------
Insurance Journal reports that in a case involving a class action
brought by New Hampshire citizens against a Merrimack plastics
plant over its release of toxic chemicals into the air and
groundwater, the state's high court has found that medical
monitoring is neither a cause for an action nor a remedy in such a
case.
The New Hampshire Supreme Court ruled that the "mere existence of
an increased risk of future development of disease is not
sufficient under New Hampshire law to constitute a legal injury for
purposes of stating a claim for the costs of medical monitoring as
a remedy or as a cause of action in the context of plaintiffs who
were exposed to a toxic substance but have no present physical
injury."
The state court ruling will have an effect on the certification of
the class in an action against the chemical firm, Saint-Gobain
Performance Plastics Corp. The U.S. District Court for New
Hampshire asked the state's high court to answer whether New
Hampshire recognizes medical monitoring as a remedy or as a cause
of action in the context of plaintiffs who were exposed to a toxic
substance. That federal court has before it a class action
complaint filed in 2016 against Saint-Gobain over its use of
chemicals containing polytetrafluorethylane (PTFE) and
perfluorooctanoic acid (PFOA) in its manufacturing processes at its
Merrimack plant.
U.S. District Justice Joseph N. LaPlante has indicated that while
the state's medical monitoring stance will determine whether a
medical monitoring claim or remedy will proceed in the case and, if
so, whether a medical monitoring class can potentially be
certified, it will not impact the litigation with respect to other
issues that were not certified to the New Hampshire Supreme Court.
The state court cited past court rulings and the lack of agreement
among state lawmakers on the issue in answering the question in the
negative. In 2020, the legislature passed a bill that would have
established a statutory cause of action for medical monitoring for
toxic substances without proof of present physical injury or
symptoms. However, the governor vetoed the bill and the legislature
did not override the veto.
According to the plaintiffs, while they have no already-diagnosed
physical injury, the increased risk of illness or disease and the
inherent latency of visible harm caused by toxins creates the
present medical need for medical testing and this constitutes legal
detriment and injury. They asserted that because "the foundation of
New Hampshire tort law is one's right to recover for another's
invasion of a legally protected interest," proof of present
physical injury is not required.
Saint-Gobain countered that New Hampshire law requires present
physical injury in order to recover under traditional negligence
claims. The company noted that the New Hampshire court has never
affirmed liability under a negligence claim except upon proof of a
physical injury.
The court agreed with Saint-Gobain. According to the ruling, the
"present medical necessity" for "diagnostic testing" is based on
the plaintiffs' allegation that they are at an "increased risk"
that in the future they might possibly develop an illness or
disease caused by exposure to PFOA. However, "an increased risk of
harm is not an injury for purposes of a negligence action," the
court concluded.
The plaintiffs brought tort claims under New Hampshire law,
including negligence, nuisance, trespass, and negligent failure to
warn. They seek damages in the form of the costs of medical
monitoring, or in the alternative, injunctive relief to fund a
medical monitoring program.
The plaintiffs and other members of the class claim they have
suffered annoyance, inconvenience, discomfort and loss of use and
enjoyment of the properties which they own and that the releases
from chemical plant have caused a diminution in value of their
properties and affected the marketability of those properties,
which will continue into the future.
In support of their position, the plaintiffs cited decisions from
other jurisdictions. However, the court said its own "well-
established precedents control" the resolution of this issue. The
court further explained, citing from a prior opinion:
If twenty persons were endangered by an act having the possibility
of injury, it would be absurd to say that rights of action accrued
to all of them at the moment the defendant's act was completed,
such rights of action to evaporate when it turned out that the harm
was averted for some reason or other. Only if and when harm came to
any one of the twenty, would a right of action accrue . . . . There
is an actionable breach of the duty only when the injury happens.
The complaint alleges that Saint-Gobain had knowledge of the
emissions of these chemicals at its plants in New York and Vermont
and their potential for contamination of water wells and adverse
health effects, yet failed to test the wells near the Merrimack
plant and to warn the citizens that the wells and groundwater at or
near the plant were likely contaminated.
Beginning in April 2016, the New Hampshire Department of
Environmental Services recommended that some residents of
Litchfield, Manchester and Merrimack use bottled water and advised
the residents not to drink or cook with water from the wells.
Shortly after this, Saint-Gobain began providing bottled water to
citizens.
The case attracted amicus briefs for the plaintiffs from
conservation, civil justice and environmental groups including the
Conservation Law Foundation, New Hampshire Safe Water Alliance, New
Hampshire Science and Public Health and the New Hampshire
Association for Justice, as well as briefs in support of
Saint-Gobain from lawyers representing pharmaceutical, chemical,
tort reform and insurance interests including the New Hampshire
Association of Domestic Insurance Companies, American Property
Casualty Insurance Association, Washington Legal Foundation,
American Chemistry Council, and Pharmaceutical Research and
Manufacturers of America. [GN]
SAPUTO DAIRY: Romero Wage-and-Hour Suit Removed to E.D. Cal.
------------------------------------------------------------
The case styled JUAN ROMERO, an individual, on behalf of himself
and on behalf of all persons similarly situated, Plaintiff v.
SAPUTO DAIRY FOODS USA, LLC, a Delaware limited liability
corporation; and DOES 1 through 50, inclusive, Defendants, Case No.
23CV-00403, was removed from the Superior Court of the State of
California for the County of Merced to the United States District
Court for the Eastern District of California on March 22, 2023.
The Clerk of Court for the Eastern District of California assigned
Case No. 1:23-cv-00427-BAM to the proceeding.
In the complaint, Plaintiff asserts claims for (a) violations of
the Unfair Competition Law; (b) failure to pay minimum and hourly
wages; (c) failure to pay overtime wages; (d) failure to provide
required meal periods; (e) failure to provide required rest
periods; (f) recordkeeping and wage statement violations; (g)
failure to reimburse employees for required expenses; and (h)
failure to pay sick wages.
Saputo Dairy Foods USA, LLC is a food processing company.[BN]
The Defendant is represented by:
Koree B. Wooley, Esq.
Cindi L. Ritchey, Esq.
Jayce E. Gustafson, Esq.
JONES DAY
4655 Executive Drive Suite 1500
San Diego, CA 92121-3134
Telephone: (858) 314-1200
Facsimile: (844) 345-3178
E-mail: kbwooley@jonesday.com
critchey@jonesday.com
jgustafson@jonesday.com
SAVE MART SUPERMARKETS: Goodwin Files Suit in Cal. Super. Ct.
-------------------------------------------------------------
A class action lawsuit has been filed against Save Mart
Supermarkets LLC, et al. The case is styled as Somalia Goodwin, as
an individual on behalf of herself and on behalf of all others
similarly situated v. Save Mart Supermarkets LLC, Save Mart
Supermarkets Disc., Case No. STK-CV-UOE-2023-0002062 (Cal. Super.
Ct., San Joaquin Cty., March 2, 2023).
The case type is stated as "Unlimited Civil Other Employment."
The Save Mart -- https://www.savemart.com/ -- is an American
grocery store operator founded and headquartered in Modesto,
California.[BN]
The Plaintiff is represented by:
Zachary M. Crosner, Esq.
CROSNER LEGAL, P.C.
433 North Camden Drive, Suite 400
Beverly Hills, CA 90210
Phone: (310) 496-5818
Fax: (310) 510-6429
Email: zach@crosnerlegal.com
SCRIPPS HEALTH: Gorey Suit Removed to S.D. California
-----------------------------------------------------
The case styled as Catherine Gorey, individually and on behalf of
all other persons similarly situated v. Scripps Health, Case No.
37-02023-00004850-CU- was removed from the San Diego County
Superior Court, to the U.S. District Court for the Southern
District of California on March 22, 2023.
The District Court Clerk assigned Case No. 3:23-cv-00519-LAB-DEB to
the proceeding.
The nature of suit is state as Other P.I. for Personal Injury.
Scripps Health -- https://www.scripps.org/ -- is a not-for-profit,
integrated health system in San Diego, California.[BN]
The Plaintiff is represented by:
L. Timothy Fisher, Esq.
BURSOR & FISHER, P.A.
1990 North California Blvd., Suite 940
Walnut Creek, CA 94596
Phone: (925) 300-4455
Fax: (925) 407-2700
Email: ltfisher@bursor.com
The Defendant is represented by:
Alexander Vitruk, Esq.
BAKER & HOSTETLER LLP
999 3rd Ave., Suite 3900
Seattle, WA 98104
Phone: (206) 566-7092
Email: avitruk@bakerlaw.com
- and -
Teresa Carey Chow, Esq.
BAKER & HOSTETLER LLP
11601 Wilshire Boulevard, Suite 1400
Los Angeles, CA 90025-0509
Phone: (310) 820-8800
Fax: (310) 820-8859
Email: tchow@bakerlaw.com
SELECTBLINDS LLC: Stipulated Protective Order Entered in Barr Suit
------------------------------------------------------------------
Magistrate Judge Patricia Donahue of the U.S. District Court for
the Central District of California enters Stipulated Protective
Order in the case, ROGER BARR, individually and on behalf of all
others similarly situated, Plaintiff v. SELECTBLINDS LLC,
Defendant. Garnett, Case No. 2:22-CV-08326-SPG-PD (C.D. Cal.).
The putative class action involves claims relating to SelectBlinds'
alleged sales practices. Disclosure and discovery activity in the
action are likely to involve production of confidential,
proprietary, or private information for which special protection
from public disclosure and from use for any purpose other than
prosecuting this litigation may be warranted. Accordingly, the
parties stipulate to and petition the Court to enter the Stipulated
Protective Order. They acknowledge that the Order does not confer
blanket protections on all disclosures or responses to discovery
and that the protection it affords from public disclosure and use
extends only to the limited information or items that are entitled
to confidential treatment under the applicable legal principles.
The protections conferred by the Stipulation and Order cover not
only Protected Material, but also (1) any information copied or
extracted from Protected Material; (2) all copies, excerpts,
summaries, or compilations of Protected Material; and (3) any
testimony, conversations, or presentations by Parties or their
Counsel that might reveal Protected Material. The Order does not
govern the use of Protected Material at trial. Any use of Protected
Material at trial will be governed by a separate agreement or
order.
Even after final disposition of the litigation, the confidentiality
obligations imposed by the Order will remain in effect until a
Designating Party agrees otherwise in writing or a court order
otherwise directs. Final disposition will be deemed to be the later
of (1) dismissal of all claims and defenses in this action, with or
without prejudice; and (2) final judgment herein after the
completion and exhaustion of all appeals, rehearings, remands,
trials, or reviews of the action, including the time limits for
filing any motions or applications for extension of time pursuant
to applicable law.
Any Party or Non-Party may challenge a designation of
confidentiality at any time.
Protected Material must be stored and maintained by a Receiving
Party at a location and in a secure manner that ensures that access
is limited to the persons authorized under the Order.
Within 60 days after the later of both (1) a final disposition of
the action, and (2) a written request by the Producing Party, each
Receiving Party must return all Protected Material to the Producing
Party or destroy such material, subject to the exceptions.
A full-text copy of the Court's March 15, 2023 Stipulated
Protective Order is available at https://tinyurl.com/a8xdr5t8 from
Leagle.com.
ISABELLE L. ORD -- isabelle.ord@dlapiper.com -- DLA PIPER LLP (US),
San Francisco, CA, Attorneys for Defendant SELECTBLINDS LLC.
SEQUOIA CAPITAL: Girshovich Sues Over Unfair Competition
--------------------------------------------------------
Mark Girshovich, on behalf of himself and all others similarly
situated v. SEQUOIA CAPITAL OPERATIONS, LLC, PARADIGM OPERATIONS
LP, and THOMA BRAVO, LP, Case No. 3:23-cv-00945-JCS (N.D. Cal.,
March 2, 2023), is brought alleging statutory violations of
California's Unfair Competition Law, False Advertising Law, and
Corporations Code, in addition to common law claims of Negligent
Misrepresentation, Intentional Misrepresentation, Fraudulent
Inducement, Civil Conspiracy, Aiding and Abetting, and claims for
Declaratory Judgement.
This is a class action brought on behalf of a class consisting of
all persons and entities that purchased, deposited and/or
transacted in fiat currency and/or digital assets in accounts with
West Realm Shires Service Inc. d/b/a/ FTX US ("FTX US") or FTX
Trading LTD d/b/a FTX ("FTX Trading" or the "Company") (FTX US and
FTX Trading are collectively referenced herein as "FTX" or the "FTX
Entities") between July 20, 2021 and November 11, 2022 (the "Class
Period") seeking to recover damages and equitable relief against
Defendants for their violations of law.
The Defendants made multiple false representations to Plaintiff and
the Class, including, but not limited to, that: (a) they had
performed sufficient due diligence supporting their investments in
FTX; (b) FTX's products and services were safe and reliable; (c)
Bankman-Fried was a visionary leader, trustworthy and with sound
judgment; (d) Bankman-Fried and his team at FTX were customer
centered and focused on the greater good rather than profiting at
the expense of others; (e) FTX was being run competently, if not
exceptionally, and with extraordinary prudence; and (f) the FTX
Entities and Bankman-Fried had strictly complied with all legal and
regulatory requirements to safeguard their customers' assets, which
included ensuring that funds deposited by FTX platform users would
be segregated for safekeeping and not used in any manner for the
benefit of FTX, Bankman-Fried or Alameda.
The Defendants knew, or should have known, that their
representations were materially false and misleading when they made
them. If the Defendants in fact performed the due diligence
activities, they claimed to have with respect to FTX, they would
have been apprised through such activities of the wanton fraud,
self-dealing and the complete lack of internal controls and
competency present at FTX. The Defendants had knowledge, or
willfully chose to ignore, that the FTX Entities were not operating
in the sound and legally compliant manner that Defendants had
represented to consumers and the market as a result of their
experience and relationship with the FTX Entities. Their statements
to the contrary during the Class Period lacked a reasonable factual
basis.
The Defendants' unfair and deceptive statements described herein
were likely to mislead--and in fact misled--consumers and investors
acting reasonably and induce them to deposit cryptocurrency and/or
other assets with the FTX Entities or otherwise engage in
transactions with the FTX Entities during the Class Period.
Defendants' conduct has caused Class members to suffer billions of
dollars in losses, as the FTX Entities ultimately collapsed and
fell into bankruptcy. Billions of dollars of assets belonging to
the victims of Defendants' and FTX's wrongful acts are missing
and/or unrecoverable.
The Defendants is liable for making deceptive and/or misleading
statements, willfully participating in acts that damaged Class
members in violation of the law, and/or aiding and abetting
violations of law. In committing the wrongful acts, each defendant
willfully participated in acts and transactions and/or aided and
abetted such unlawful acts and transactions, which promoted the
purported trustworthiness, favorable risk profile, and financial
stability of FTX, thereby deceiving the digital asset trading
investing public, says the complaint.
The Plaintiff purchased, deposited, and transacted assets with
FTX.
Sequoia is a venture capital firm.[BN]
The Plaintiff is represented by:
Azra Mehdi, Esq.
THE MEHDI FIRM, PC
95 Third Street
2nd Floor No. 9122
San Francisco, CA 94103
Phone/Fax: 415.905.8880
Email: azram@themehdifirm.com
SHAMROCK FOODS: Appeals Arbitration Bid Denial in Valdez to 9th Cir
-------------------------------------------------------------------
SHAMROCK FOODS COMPANY is taking an appeal from a court order
denying its motion to compel arbitration in the lawsuit entitled
George Valdez, individually and on behalf of all others similarly
situated, Plaintiff, v. Shamrock Foods Company, Defendant, Case No.
5:22-cv-01719-SSS-SHK, in the U.S. District Court for the District
Court for Central California.
As previously reported in the Class Action Reporter, the lawsuit,
which was removed from the Superior Court of California for the
County of Riverside to the U.S. District Court for the Central
District of California, is brought by the Plaintiff against the
Defendant for: (1) failure to pay meal and rest period
compensation; (2) waiting time penalties; (3) failure to pay
compensation for all hours worked and minimum wage violation; (4)
failure to provide accurate itemized wage statements; and (5)
unfair competition pursuant to Cal. Business and Professions Code.
On Jan. 6, 2023, the Defendant filed a motion to compel
arbitration, which the Plaintiff opposed on Jan. 19, 2023.
On Mar. 16, 2023, the Court denied the Defendant's motion through
an Order entered by Judge Sunshine Suzanne Sykes. The Court ruled
that because Valdez is a transportation worker, he is exempt from
the Federal Arbitration Act (FAA) and Shamrock's motion.
The appellate case is captioned George Valdez v. Shamrock Foods
Company, et al., Case No. 23-55265, in the United States Court of
Appeals for the Ninth Circuit, filed on March 23, 2023.
The briefing schedule in the Appellate Case states that:
-- Appellant Shamrock Foods Company Mediation Questionnaire was
due on March 30, 2023;
-- Appellant Shamrock Foods Company opening brief is due on May
24, 2023;
-- Appellee George Valdez answering brief is due on June 26,
2023; and
-- Appellant's optional reply brief is due 21 days after service
of the answering brief. [BN]
Plaintiff-Appellee GEORGE VALDEZ, on behalf of himself and all
others similarly situated, is represented by:
Michael Hagop Boyamian, Esq.
BOYAMIAN LAW, INC.
550 N. Brand Boulevard, Suite 1500
Glendale, CA 91203
Telephone: (818) 547-5300
Defendant-Appellant SHAMROCK FOODS COMPANY is represented by:
Andrew George Pappas, Esq.
OSBORN MALEDON, PA
2929 N. Central Avenue, Suite 2000
Phoenix, AZ 85012
Telephone: (602) 640-9398
- and -
Andrew Jonathon Sommer, Esq.
CONN MACIEL CAREY LLP
870 Market Street, Suite 1111
San Francisco, CA 94102
Telephone: (415) 268-8881
SILLY FARM SUPPLIES: Hernandez Files ADA Suit in S.D. New York
--------------------------------------------------------------
A class action lawsuit has been filed against Silly Farm Supplies,
Inc. The case is styled as Janelys Hernandez, on behalf of herself
and all others similarly situated v. Silly Farm Supplies, Inc.,
Case No. 1:23-cv-02422 (S.D.N.Y., March 22, 2023).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Silly Farm -- https://sillyfarm.com/ -- carries the worlds largest
selection of face painting palettes.[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
SOUTHGATE REIKI: Faces DeAnda Suit Over Unpaid Minimum Wages
------------------------------------------------------------
Laney DeAnda, on behalf of herself and all others similarly
situated v. Southgate Reiki LLC d/b/a Tropical Touch Southgate, and
Latoca Relaxation Center, LLC d/b/a Tropical Touch Sterling, and
Tropical Touch MT. Clemens, LLC, and James Deon Lee, Case No.
2:23-cv-10668-SDK-APP (E.D. Mich., March 22, 2023) alleges that the
defendants violated the Fair Labor Standards Act. She claims that
the defendants have practices and policies of not paying their
non-exempt employees for all hours worked.
The Defendants operate spas in Michigan. Between approximately
November 2022 and February 2023, the defendants employed DeAnda as
a spa therapist at its Sterling Heights, MI and Southgate, MI
facilities. DeAnda frequently worked more than 40 hours per week
but was only paid with commissions that were often than one and
one-half times the minimum wage. Allegedly, the Defendants also
have a policy and practice of making unlawful, arbitrary deductions
from commissions.
Tropical Touch Southgate, Defendant Tropical Touch Sterling, and
Defendant Tropical Touch Mt. Clemens were corporations organized
under the laws of the state of Michigan. [BN]
The Plaintiff is represented by:
Anthony J. Lazzaro, Esq.
Alanna Klein Fischer, Esq.
Lori M. Griffin, Esq.
Matthew S. Grimsley, Esq.
The Lazzaro Law Firm, LLC
The Heritage Bldg., Suite 250
34555 Chagrin Boulevard
Moreland Hills, OH 44022
Telephone: (216) 696-5000
Facsimile: (216) 696-7005
E-mail: anthony@lazzarolawfirm.com
alanna@lazzarolawfirm.com
lori@lazzarolawfirm.com
matthew@lazzarolawfirm.com
SOUTHWEST LOUISIANA HOSPITAL: Suit Removed to W.D. Louisiana
------------------------------------------------------------
The case captioned as George Navarro, on behalf of himself and all
others similarly situated v. SOUTHWEST LOUISIANA HOSPITAL
ASSOCIATION d/b/a LAKE CHARLES MEMORIAL HOSPITAL, Case No.
2023-0218-Div. H was removed from the 14th Judicial District Court
of Louisiana, Parish of Calcasieu, to the United States District
Court for the Western District of Louisiana on March 3, 2023, and
assigned Case No. 2:23-cv-00294-DCJ-KK.
The Complaint here alleges that the action is brought based on
Defendant's "failure to implement and follow basic security
procedures, and its failure to follow its own policies, in order to
protect its patients' PII and PHI." The Plaintiff also contends
there are "more than 260,000 individuals who had their PII and/or
PHI breach" in the Incident. He brings the action as a result of
Defendant's: "mismanaging its system and failing to identify
reasonably foreseeable internal and external risks to the security,
confidentiality, and integrity of patient information that resulted
in the unauthorized access and compromise of PII and PHI;
mishandling its data security by failing to assess the sufficiency
of its safeguards in place to control these risks; failing to
design and implement information safeguards to control these risks;
failing to adequately test and monitor the effectiveness of the
safeguards' key controls, systems, and procedures; failing to
evaluate and adjust its information security program in light of
the circumstances; failing to detect the breach at the time it
began or within a reasonable time thereafter; and failing to
adequately train and supervise employees and third party vendors
with access or credentials to systems and databased containing
sensitive PII or PHI."[BN]
The Defendants are represented by:
William B. Monk, Esq.
STOCKWELL SIEVERT LAW FIRM
Chase Bank Bldg.
127 W. Broad St., 4th Floor
Lake Charles, LA 70601
Phone: 337-493-7232
Facsimile: 337-312-2919
- and -
Christopher A. Wiech, Esq.
Chelsea M. Lamb, Esq.
BAKER & HOSTETLER LLP
1170 Peachtree Street, Suite 2400
Atlanta, GA 30309-7676
Phone: 404.946.9814
Facsimile: 404.459.5734
Email: cwiech@bakerlaw.com
clamb@bakerlaw.com
SPEEDWAY LLC: Petroski Sues Over Unlawful Labor Practices
---------------------------------------------------------
SHARON PETROSKI, on behalf of herself and others similarly
situated, Plaintiff v. SPEEDWAY LLC, Defendant, Case No. 230302703
(Pa. Com. Pl., Philadelphia Cty., March 23, 2023) arises from the
Defendant's alleged violations of the Philadelphia Fair Workweek
Employment Standards or the Fair Workweek Law by failing to provide
written notice of work schedules with at least 10 or 14-days'
notice; changing employees' schedules at the last minute; failing
to provide sufficient time between shifts; and failing to offer new
shifts to current employees before hiring new employees.
The Plaintiff was employed as an hourly employee at the Speedway
store in Philadelphia, Pennsylvania from approximately October 2022
through December 2022.
Speedway is a chain of company-owned and operated gasoline and
convenience stores in the United States.[BN]
The Plaintiff is represented by:
David Huang, Esq.
Nadia Hewka, Esq.
COMMUNITY LEGAL SERVICES, INC.
1424 Chestnut St.
Philadelphia, PA 19102
Telephone: (215) 981-3745
Facsimile: (215) 981-3793
E-mail: dhuang@clsphila.org
nhewka@clsphila.org
- and -
Sally J. Abrahamson, Esq.
WERMAN SALAS P.C.
335 18th P1 NE
Washington, D.C. 20002
Telephone: (202) 830-2016
E-mail: sabrahamson@flsalaw.com
- and -
Ryan Allen Hancock, Esq.
WILLIG, WILLIAMS & DAVIDSON
1845 Walnut Street, 24th Floor
Philadelphia, PA 19103
Telephone: (215) 656-3600
Facsimile: (215) 567-2310
E-mail: rhancock@wwdlaw.com
- and -
Sarah R. Schalman-Bergen, Esq.
Krysten Connon, Esq.
LICHTEN & LISS-RIORDAN, P.C,
729 Boylston Street, Suite 2000
Boston, MA 02116
Telephone: (267) 256-9973
E-mail: ssb@llrlaw.com
kconnon@llrlaw.com
SSP AMERICA INC: Adams Files Suit in Cal. Super. Ct.
----------------------------------------------------
A class action lawsuit has been filed against SSP America, Inc., et
al. case is styled as Jerome Adams, on behalf of all others
similarly situated v. SSP America, Inc., SSP America Fat, LLC, SSP
America Oak, LLC, SSP America ONT, LLC, SSP America San T1, LLC,
SSP America SAN, LLC, SSP America SFO, LLC, SSP America SJC, LLC,
SSP America SMF, LLC, SSP America STS, LLC, Does 1-20, inclusive,
Case No. 34-2023-00336801-CU-OE-GDS (Cal. Super. Ct., Sacramento
Cty., March 23, 2023).
The case type is stated as "Other Employment - Civil Unlimited."
SSP America, a division of SSP Group, operates in airports
throughout the United States, Canada and South America.[BN]
The Plaintiff is represented by:
Jessica L. Campbell, Esq.
AEGIS LAW FIRM
9811 Irvine Center Dr., Ste. 100
Irvine, CA 92618
Phone: 949-379-6250
STAR FINANCIAL: Dismissal of Decker Suit Reversed on Appeal
-----------------------------------------------------------
The Indiana Supreme Court reverses and remands the appealed case
captioned as Cliff Decker and Wendy Decker, Individually and on
Behalf of all others Similarly Situated, Appellants v. Star
Financial Group, Inc., Appellee, Supreme Court Case No. 22S-PL-305
(Ind.).
The Plaintiffs, Cliff and Wendy Decker, have a checking account
with Star Financial Bank, a wholly owned subsidiary of the
Defendant, Star Financial Group, Inc. When the Deckers opened their
checking account, they assented to an account agreement that
detailed the terms and conditions of their relationship with the
Bank. The account agreement did not mention arbitration, class
actions, or dispute resolution at all.
In October 2019, the Bank assessed the Deckers a $37 overdraft fee,
which the Deckers argued was improper because their account was not
overdrawn. The Deckers' counsel reached out to the Bank's general
counsel to discuss its fee practices. In August 2020, the Bank sent
the Deckers an email that included their monthly bank statement.
The monthly statement contained: (1) ten pages detailing the prior
month's transactions; (2) one page of fees; (3) one page of check
images; and (4) a two-page addendum to their account agreement
providing that claims against the Bank were subject to arbitration
and could be brought only in a customer's individual capacity. The
addendum noted that it would become effective within ten days if
the Deckers retained their account with the Bank.
The Deckers later filed a class-action complaint against the Bank
alleging improper overdraft fees. The Bank responded with a motion
to compel arbitration based on the addendum. After a hearing, the
trial court granted the Bank's motion to compel arbitration and
dismissed the Deckers' complaint.
The Deckers raise three arguments on appeal: (1) the Bank buried
notice of the addendum at the end of their monthly statement and
thus did not provide the contractually required reasonable notice;
(2) the account agreement's change-of-terms clause did not allow
the Bank to add the addendum; and (3) the continued use of their
checking account did not manifest their assent to the addendum.
The Indiana Supreme Court holds that "the account agreement's
change-of-terms clause did not allow the Bank to add the addendum.
. . the Deckers are not bound by the arbitration addendum to their
account agreement. . . not because the agreement prohibits the Bank
from adding new terms but, rather, because the Deckers' failure to
close the account within ten days did not. . . constitute assent to
the addendum."
A full-text copy of the Opinion dated March 21, 2023, is available
https://tinyurl.com/5a9tm9ut from Leagle.com.
STATE FARM: Sewickley Appeals Insurance Suit Dismissal to 3rd Cir.
------------------------------------------------------------------
SEWICKLEY CHIROPRACTIC CENTER PC is taking an appeal from a court
order dismissing its lawsuit entitled Sewickley Chiropractic Center
PC, on behalf of itself and all others similarly situated,
Plaintiff, v. State Farm Fire and Casualty Co., Defendant, Case No.
2-21-cv-01368, in the U.S. District Court for the Western District
of Pennsylvania.
The Plaintiff brings this civil class action against the Defendant
for declaratory relief and breach of contract arising from its
contract of insurance with the Defendant. The Plaintiff and the
Class purchased and paid for an all-risk Commercial Property
Coverage insurance policy from the Defendant, which provides broad
property insurance coverage for all non-excluded, lost business
income. The Plaintiff submitted timely notice of its claim to the
Defendant, but the Defendant has refused to provide the purchased
coverage to its insured in response to the Plaintiff's claim for
benefits under the policy.
On Nov. 29, 2021, the Plaintiff filed an amended complaint against
the Defendant.
On Jan. 10, 2022, the Defendant filed a motion to dismiss the
amended complaint for failure to state a claim, which the Court
granted through an Order entered by Judge W. Scott Hardy on Feb.
13, 2023.
The appellate case is captioned Sewickley Chiropractic Center PC v.
State Farm Fire and Casualty Co., Case No. 23-1482, in the United
States Court of Appeals for the Third Circuit, filed on March 22,
2023. [BN]
Plaintiff-Appellant SEWICKLEY CHIROPRACTIC CENTER PC, on behalf of
itself and all others similarly situated, is represented by:
Kelly K. Iverson, Esq.
Gary F. Lynch, Esq.
LYNCH CARPENTER
1133 Penn Avenue, 5th Floor
Pittsburgh, PA 15222
Telephone: (412) 322-9243
Defendant-Appellee STATE FARM FIRE AND CASUALTY CO. is represented
by:
Daniel J. Twilla, Esq.
BURNS WHITE
48 26th Street
Burns White Center
Pittsburgh, PA 15222
Telephone: (412) 995-3286
SUMMIT UTILITIES: Class Suit Moves to AR Public Service Commission
------------------------------------------------------------------
Neale Zeringue and Ryan Turbeville of Kark.com report that Summit
customers and their attorney, Scott Poynter, filed a motion March
28, 2023 requesting to be part of the ongoing arguments at the
Arkansas Public Service Commission.
"We're back in front in a venue where we're trying to battle and
work for the benefit of our clients again," Poynter said.
Customers paying a gas bill in central Arkansas are likely paying
it through Summit Utilities, and for customers thinking their
winter gas bills looked outrageous, they were not alone.
Thousands of customers were unhappy with high bills enough to file
a class action lawsuit. That suit was dropped out of federal court
by a plaintiff's request in the middle of March, and court
documents show that the case was withdrawn, Judge Brian Miller
recused himself.
"I have been personally impacted by the subject matter herein to
the point that I could be called as a witness," Miller explained.
The attorney is himself one of over 400,000 Summit gas customers in
Arkansas. Since the beginning of the year, he has been leading the
class action efforts, and on March 28, 2023 he asked to join in the
APSC's investigation requested by Attorney General Tim Griffin.
"All sides to it are doing something that's never been done before,
before the utility commission," Poynter said. "There's never been a
class of consumers so upset about utility bills that they've had to
file a class action complaint before the commission."
Poynter said the APSC still has to decide whether to take up the
request or let it go back to court. Jeff Hilton, Interim Executive
Director for Arkansas Public Service Commission, said it is likely
they will if it clears their legal requirements.
The two investigations that the APSC currently has opened are
focused on Summit's billing practices and their purchasing
practices in acquiring gas at a fair rate. Poynter said his clients
are deeply invested in both focuses of the inquiry.
"The biggest problem that exists is that the bills are atrocious.
Okay? Across the board. They're enormous," he said. "They're either
two times or three times or four times, even 10 times, what their
normal average bills had been in the past."
Poynter accused Summit of auto-charging some customers who are not
enrolled in autopay or ending their levelized billing when taking
over CenterPoint Energy, which Summit acquired in late 2022.
"There's a real problem here because the sheer numbers show that
there's a problem," he claimed.
Summit has already admitted publicly to some billing errors but
claims those issues have all since been resolved. It is unclear
what consequences Summit could face, if any. The class action suit
is seeking damages but also a suspension of any disconnections or
late fees of Summit customers.
The attorney general's office and Summit are already submitting
findings for arguments following Griffin's request for an
investigation.
Deadlines are already set for the attorney general to file direct
testimony supporting his motion and detailing each of Summit's
alleged violations of Section 5 of the General Service Rules no
later than Mar. 31. The APSC has directed Summit to file its own
direct testimony in response no later than April 20.
If granted a chance to intervene, the arguments from Poynter on
behalf of customers that would address the earlier direct testimony
would have a deadline of May 10.
Further proceedings, including additional testimony, hearing or
delays, are possible.
A Summit spokesperson said on March 15 that the company would
continue its policy put in place on Nov. 1, 2022, of not
disconnecting or charging late fees to customers. [GN]
SWEET PIZZA: Peery Seeks Unreimbursed Expenses for Delivery Drivers
-------------------------------------------------------------------
In the class action complaint, Angela Denise Peery, individually
and on behalf of similarly situated persons, v. Sweet Pizza, LLC,
and Cassie Gerety, Peery alleges that the defendants violated the
Fair Labor Standards Act for implementing a flawed automobile
reimbursement policy to their delivery drivers.
She accuses the defendants failed to reasonably approximate the
amount of their drivers' automobile expenses to such an extent that
their drivers' net wages are diminished beneath the federal minimum
wage requirements.
Sweet Pizza, LLC owns and operates numerous Domino's franchise
stores. Peery was employed by Sweet Pizza from approximately April
2022 to June 2022 as a delivery driver at the defendants' Domino's
store located in Odessa, TX. [BN]
The Plaintiff is represented by:
Katherine Serrano, Esq.
FORESTER HAYNIE, PLLC
400 N. St. Paul Street Suite 700
Dallas, TX 75201
Telephone: (214) 210-2100
Facsimile: (469) 399-1070
E-mail: kserrano@foresterhaynie.com
T. ROWE PRICE: Faces Invasion of Privacy Suit in CA Court
---------------------------------------------------------
T. Rowe Price Group, Inc. disclosed in its Form 10-K report for the
fiscal year ended December 31, 2022, filed with the Securities and
Exchange Commission on February 15, 2023, that on October 27, 2022,
two individuals filed a class action lawsuit in the United States
District court for the Southern District of California against T.
Rowe Price Retirement Plan Services, Inc. (RPS).
The complaint alleges that the use of certain biometric voiceprints
to validate the identity of callers as participants in retirement
plans serviced by RPS violated the California Invasion of Privacy
Act (CIPA) because RPS did not obtain their express written
consent.
T. Rowe Price Group, Inc. is a financial services holding company
based in Maryland.
TAL EDUCATION: Bids for Lead Plaintiff Appointment Due May 30
-------------------------------------------------------------
Rosen Law Firm, P. A. reports that if you wish to serve as lead
plaintiff, you must move the Court no later than May 30, 2023 in a
class action lawsuit on behalf of purchasers of American Depository
Shares ("ADSs") of TAL Education Group (NYSE: TAL) between June 14,
2022 and March 14, 2023, both dates inclusive (the "Class Period").
The lawsuit seeks to recover damages for TAL's investors under the
federal securities laws.
To join the TAL class action, go
https://rosenlegal.com/submit-form/?case_id=3137 or call Phillip
Kim, Esq. toll-free at 866-767-3653 or email pkim@rosenlegal.com or
cases@rosenlegal.com for information on the class action.
According to the lawsuit, throughout the Class Period, Defendants
made materially false and/or misleading statements and/or failed to
disclose that: (1) the Company was still providing K9 Academic AST
Services; and (2) 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.
A class action lawsuit has already been filed. If you wish to serve
as lead plaintiff, you must move the Court no later than May 30,
2023. A lead plaintiff is a representative party acting on behalf
of other class members in directing the litigation. If you wish to
join the litigation, go to
https://rosenlegal.com/submit-form/?case_id=3137 or to discuss your
rights or interests regarding this class action, please contact
Phillip Kim, Esq. of Rosen Law Firm toll free at 866-767-3653 or
via e-mail at pkim@rosenlegal.com or cases@rosenlegal.com.
NO CLASS HAS YET BEEN CERTIFIED IN THE ABOVE ACTION. UNTIL A CLASS
IS CERTIFIED, YOU ARE NOT REPRESENTED BY COUNSEL UNLESS YOU RETAIN
ONE. YOU MAY RETAIN COUNSEL OF YOUR CHOICE. YOU MAY ALSO REMAIN AN
ABSENT CLASS MEMBER AND DO NOTHING AT THIS POINT. AN INVESTOR'S
ABILITY TO SHARE IN ANY POTENTIAL FUTURE RECOVERY IS NOT DEPENDENT
UPON SERVING AS LEAD PLAINTIFF.
Rosen Law Firm represents investors throughout the globe,
concentrating its practice in securities class actions and
shareholder derivative litigation. Rosen Law Firm was Ranked No. 1
by ISS Securities Class Action Services for number of securities
class action settlements in 2017. The firm has been ranked in the
top 4 each year since 2013. Rosen Law Firm has achieved the largest
ever securities class action settlement against a Chinese Company.
Rosen Law Firm's attorneys are ranked and recognized by numerous
independent and respected sources. Rosen Law Firm has secured
hundreds of millions of dollars for investors.
Contacts
Laurence Rosen, Esq.
Phillip Kim, Esq.
The Rosen Law Firm, P.A.
275 Madison Avenue, 40th Floor
New York, NY 10016
Tel: (212) 686-1060
Toll Free: (866) 767-3653
Fax: (212) 202-3827
lrosen@rosenlegal.com
pkim@rosenlegal.com
cases@rosenlegal.com
www.rosenlegal.com [GN]
TAURUS INT'L: Harman Suit Over Faulty Pistol Tossed With Prejudice
------------------------------------------------------------------
In the case, RITA HARMAN, Individually and on, Behalf of all others
similarly situated, Plaintiff v. TAURUS INTERNATIONAL,
MANUFACTURING, INC., et al., Defendants, Civil Act. No.
3:21-cv-697-ECM (M.D. Ala.), Judge Emily C. Marks of the U.S.
District Court for the Middle District of Alabama, Eastern
Division, grants the Defendants' motion to dismiss for failure to
state a claim.
Harman alleges her Taurus PT 738 TCP Pistol malfunctioned due to a
defect in the pistol's slide component. She brings this class
action against Defendants Taurus International Manufacturing, Inc.
("TIMI") -- the manufacturer of the PT 738 pistol -- and Taurus
Holdings, Inc., on her behalf and all those similarly situated. In
her second amended complaint, the Plaintiff asserts six claims:
violation of the Florida Deceptive and Unfair Trade Practices Act
("FDUTPA") (Count I), violation of the Alabama Deceptive Trade
Practices Act ("ADTPA") (Count II), breach of express warranty
(Count III), breach of implied warranty of merchantability (Count
IV), violation of the Magnuson-Moss Warranty Act ("MMWA") (Count
V), and declaratory relief (Count VI).
The Plaintiff's husband, Chris Harman, purchased a Taurus PT 738
pistol from a retail store in Opelika, Alabama, on Dec. 13, 2011,
and gave it to his wife as a gift. Her husband was seriously
injured on Nov. 27, 2020, at a firing range when the PT 738 pistol
blew apart, causing metal pieces to strike him in the face and eye.
The Plaintiff alleges the pistol was designed, manufactured,
assembled, and marketed by the Defendants in Florida.
The Plaintiff alleges that in 2012, the slide on consumer Brian
Aunkst's PT 738 pistol broke in an identical way to hers, causing
the pistol to explode in his hand. According to the complaint, the
Defendants failed to fully investigate what caused the slide to
break apart. Despite knowing about and inspecting Aunkst's
defective pistol, the Plaintiff claims the Defendants again
instructed their marketing teams to avoid mentioning the defect in
advertising materials and continued to market PT 738 pistols as
safe firearms.
The Plaintiff filed her original complaint in the Southern District
of Florida on Feb. 2, 2021, bringing claims for violation of
FDUTPA; negligence; strict liability; breach of express warranty;
breach of implied warranty of merchantability; violation of MMWA;
negligent failure to disclose, failure to warn, concealment and
misrepresentation; fraudulent concealment and intentional failure
to warn; and seeking declaratory relief. On March 25, 2021, she
filed her first amended complaint with the same claims.
The case was then transferred to this Court on Oct. 18, 2021, and
consolidated for discovery purposes with the Plaintiff's husband's
private action against the Defendants (Civ. Act. No. 3:21-cv-98)
for discovery purposes. In response to the Court's order granting
in part and denying in part the Defendants' motion to dismiss or
for a more definite statement, the Plaintiff filed her complaint on
March 18, 2022, for which the Defendants bring the instant motion
to dismiss.
The Defendants move to dismiss all counts against both Defendants.
Judge Marks first addresses the warranty claim, and then the claims
under the FDUTPA and ADTPA.
First, the Plaintiff claims that the Defendants violated an express
warranty that the PT 738 pistol be free from both design and
manufacturing defects. She brings her claim for breach of express
warranty as a third-party beneficiary. The Defendants argue that
the Plaintiff has failed to allege breach of contract because TIMI
expressly warranted either against manufacturing defects in the PT
738 pistol -- not design defects -- or that they would repair any
manufacturing flaws.
Judge Marks finds that the Plaintiff has failed to adequately state
a claim for breach of express warranty. An express warranty that
exclusively warrants against flaws in "materials and workmanship"
covers only manufacturing defects, not design defects. And,
although she alleges that she was an intended third-party
beneficiary because her husband purchased the PT 738 pistol for
her, relying in part on her desire for the pistol's warranties, she
fails to present any facts demonstrating that the warranties she
desired warranted against anything other than manufacturing defects
or repairs.
Addressing these warranties in turn, the Plaintiff fails to allege
facts demonstrating the Defendants denied repairs to her PT 738
pistol after it was damaged. She also fails to allege a breach of
the Defendants' express warranty against materials and workmanship
defects because no facts alleged plausibly demonstrate that a
manufacturing defect caused the PT 738 pistol's slide to shatter.
Because the complaint provides factual allegations of a design
defect in the PT 738 pistol -- not a manufacturing defect -- Judge
Marks holds that the Plaintiff has failed to state a claim for
breach of express warranty. Count III is dismissed.
Second, the Defendants argue that the Plaintiff's claim under the
FDUTPA is time barred because the statute of limitations has run.
As the parties agree, the statute of limitations for a FDUTPA claim
is four years. According to the Plaintiff, her allegation that the
Defendants instructed their marketing teams to omit information of
the defect from advertisements justifies tolling the statute of
limitations under the theory of fraudulent concealment.
Judge Marks opines that the theory of fraudulent concealment
tolling cannot apply under the facts alleged. Because the statute
of limitations accrued on the day of purchase, on Dec. 13, 2011,
the last day the Plaintiff could have brought a FDUTPA claim was
Dec. 13, 2015. Therefore, the Plaintiff's FDUTPA claim brought in
2021 is barred, and Count I is dismissed.
Third, the Defendants argue that the Plaintiff's ADTPA claim is
time barred because the Act has a four-year statute of limitations
period from the time of purchase. The Plaintiff agrees with the
four-year limitation but maintains that her claim falls under the
ADTPA's savings clause for warranties that extend beyond three
years.
Judge Marks finds that the Plaintiff fails to allege facts
demonstrating the Defendants denied repairs to her PT 738 pistol in
violation of its unlimited repair policy. The Plaintiff has not
alleged that she "sought or was denied repairs for any alleged
defect," as required to make a claim for breach of a repair
warranty. To the extent that she claims the Defendants had a duty
to recall or replace the PT 738 pistol after it became aware of
Aunkst's defective pistol, no such duty exists under Alabama law.
Therefore, the complaint has not stated a claim on which the
Defendants can be found liable under the unlimited repair policy
for engaging in any other unconscionable, false, misleading, or
deceptive act or practice in the conduct of trade or commerce.
Count II is, therefore, dismissed.
Accordingly, the Defendants' Motion to Dismiss is granted and the
Plaintiff's claims are dismissed in their entirety and with
prejudice.
A separate judgment will be issued.
A full-text copy of the Court's March 15, 2023 Memorandum Opinion &
Order is available at https://tinyurl.com/2pwjz4kk from
Leagle.com.
TENNESSEE-AMERICAN WATER: Bruce Water Shortage Suit Ongoing
-----------------------------------------------------------
American Water Works Company, Inc. disclosed in its Form 10-K
report for the fiscal year ended December 31, 2022, filed with the
Securities and Exchange Commission on February 15, 2023, that on
September 17, 2019, a complaint captioned "Bruce, et al. v.
American Water Works company, Inc., et al." was filed in the
Circuit court of Hamilton County, Tennessee against its subsidiary,
Tennessee-American Water Company (TAWC), on behalf of a proposed
class of individuals or entities who lost water service or suffered
monetary losses under a breach of contract and negligence case
against them, as well as an equitable remedy of piercing the
corporate veil.
In the complaint as originally filed, the plaintiffs were seeking
an award of unspecified alleged damages for wage losses, business,
and economic losses, out-of-pocket expenses, loss of use and
enjoyment of property, and annoyance and inconvenience, as well as
punitive damages, attorneys' fees, and pre-and post-judgment
interest.
In September 2020, the court dismissed all claims in the complaint,
except for the breach of contract claims against TAWC, which remain
pending. In October 2020, TAWC answered the complaint, and the
parties have been engaging in discovery. On January 12, 2023, after
hearing the oral argument, the court issued an oral ruling denying
their motion for class certification.
On February 9, 2023, the plaintiffs sought reconsideration of the
ruling by the court, and any final ruling is appealable to the
Tennessee Court of Appeals, as allowed under Tennessee law.
American Water is a water and wastewater utility company based in
New Jersey.
TERRAN ORBITAL: Continues to Defend Mullen Class Suit in S.D.N.Y.
-----------------------------------------------------------------
Terran Orbital 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 22, 2023, that the Company
continues to defend itself from Mullen class suit in the United
States District Court for the Southern District of New York.
In February 2023, a putative class action complaint, naming the
Company, its Chief Executive Officer and Chief Financial Officer,
and the members of our Board of Directors as defendants, was filed
in the United States District Court for the Southern District of
New York, Case No. 1:23-cv-01394. The litigation was instituted by
Jeffrey Mullen on behalf of himself and all others similarly
situated, all of whom are current or former employees of the
Company.
The class action complaint asserts claims for violations of
Sections 11(A), 12(a)(2) of the Securities Exchange Act of 1933,
negligence, and breach of fiduciary duties, resulting from the
Company's alleged failure to timely transfer shares of common stock
to current and former employee shareholders after the consummation
of the Tailwind Two Merger and alleges materially false and
misleading statements made in the Company's Form S-4 Registration
Statement and Proxy Prospectus relating to the process for
exchanging shares in connection with the Tailwind Two Merger.
The complaint seeks an award of damages, an award of reasonable
costs and expenses at trial, including counsel and expert fees, and
an award of such other relief as deemed appropriate by the Court.
The Company intends to defend this action vigorously.
Terran Orbital Inc. is a Delaware corporation with its principal
place of business located in Boca Raton, Florida.[BN]
TEXAS SWD COMPANY: Hickman Sues Over Failure to Pay Overtime Wages
------------------------------------------------------------------
Anthony Hickman, individually and on behalf of all others similarly
situated v. TEXAS SWD COMPANY, INC., Case No. 6:23-cv-00018-C (N.D.
Tex., March 2, 2023), is brought under the Fair Labor Standards Act
and the Portal-to-Portal Act (collectively, the "FLSA") seeking
damages for Defendant's failure to pay Plaintiff time and one-half
the regular rate of pay for all hours worked over 40 during each
seven-day workweek while working for Defendant paid on a weekly
rate basis.
Specifically, the Plaintiff was misclassified as an independent
contractor by the Defendant. The Plaintiff was paid a weekly rate
and regularly worked in excess of 40 hours per workweek while
performing his job duties for the Defendant. However, he was never
paid time and one-half his regular rate of pay by the Defendant for
any hours worked over 40 in a workweek during his work for the
Defendant, says the complaint.
The Plaintiff worked for the Defendant in Big Lake, Texas from May
2019 to March 2022.
The Defendant is a corporation organized under the laws of the
State of Texas.[BN]
The Plaintiff is represented by:
Melinda Arbuckle, Esq.
Ricardo J. Prieto, Esq.
WAGE AND HOUR FIRM, LLP
400 North Saint Paul Street, Suite 700
Dallas, TX 75201
Phone: (214) 210-2100
Facsimile: (469) 399-1070
Email: marbuckle@wageandhourfirm.com
rprieto@wageandhourfirm.com
TIKTOK INC: Faces Class Suit Over Tracking & Selling User Data
--------------------------------------------------------------
Stevel Lowe of Lowe & Associates reports that on November 25, 2022,
Austin Recht (an individual acting on behalf of a class of
similarly situated people) filed a class action suit against TikTok
in the Central District of California for secretly gathering
details and content about TikTok users without their consent. The
suit also named Chinese conglomerates, Beijing Douyin Information
Service Co. Ltd, Bytedance Inc., and Douyin Ltd. as defendants.
TikTok Inc. is a social media platform in which users create and
watch short-form videos. Videos shared on TikTok feature almost any
topic imaginable, which makes it the perfect platform to engage all
types of audiences and personalize the viewing experience for each
user. TikTok is owned by ByteDance, a Chinese internet technology
company. For some time now, ByteDance and TikTok have been the
subject of investigation by the United States government for
TikTok's invasion of privacy of its users.
The action that was filed alleges that TikTok, through the use of
its in-app browser, tracks users' activities and sells that data to
third parties. It is further alleged that the data of billions of
TikTok users is the "world's most valuable resource." The complaint
further states that TikTok monitors users' keystrokes in order to
record a user's every move when they visit a website through
TikTok.
This is not the first time that TikTok has been accused of
illegally obtaining and using data of its users. In August 2020,
TikTok faced a class action lawsuit that alleged they misused
users' biometric data. In July 2022, TikTok settled that case for
$92 million.
Three related cases were also filed against Defendants in December
2022. Recht argued that each of these four cases is "related" to
each other and, as such, they should be "consolidated." He
subsequently filed a Motion for Consolidation. In December 2022,
the parties stipulated to "stay" the case pending a resolution of
the Motion to Consolidate and Plaintiffs' motion to vacate the
United States Judicial Panel on Multi-district Litigation’s order
to transfer the action.
Recht is represented by Roland Tellis, Sterling Cluff, David
Fernandes and Shannon Royster of Baron & Budd PC and Don Bivens of
Don Bivens PLLC.
TikTok Inc. and Bytedance Inc. are represented by Anthony J
Weibell, Victor H. Jih, Samantha A Machock, Thomas Robert Wakefield
and Kelly Hope Yin of Wilson Sonsini Goodrich & Rosati.
The case is Austin Recht v. TikTok Inc. et al., case number
2:22-cv-08613, in the U.S. District Court for the Central District
of California.
* Lowe & Associates ("The Firm") is a boutique entertainment and
business law firm located in Beverly Hills, California. The firm
has extensive experience handling cases involving tort law,
including invasion of privacy, having provided top-quality legal
services to its clients since 1991. The Firm is recognized for its
many achievements, including successfully litigating many
high-profile cases. [GN]
TK&K SERVICES: Palma Wage-and-Hour Suit Removed to E.D. Cal.
------------------------------------------------------------
The case styled JOSUE PALMA, as an individual on behalf of himself
and all others similarly situated, Plaintiff v. TK&K SERVICES, LLC,
a Georgia limited liability company and DOES 1 through 100,
inclusive, Defendants, Case No. BCV-23- 100450, was removed from
the Superior Court of the State of California for the County of
Kern to the United States District Court for the Eastern District
of California on March 22, 2023.
The Clerk of Court for the Eastern District of California assigned
Case No. 1:23-at-00252 to the proceeding.
The complaint alleges causes of action for: (1) recovery of unpaid
minimum wages and liquidated damages; (2) recovery of unpaid
overtime wages; (3) failure to provide meal periods or compensation
in lieu thereof; (4) failure to provide rest periods or
compensation in lieu thereof; (5) failure to furnish accurate
itemized wage statements; (6) failure to reimburse business
expenses; and (7) unfair competition.
TK&K Services, LLC was founded in 2007. The company's line of
business includes providing business consulting services on a
contract or fee basis.[BN]
The Defendant is represented by:
John T. Egley, Esq.
Chris C. Scheithauer, Esq.
CALL & JENSEN
A Professional Corporation
610 Newport Center Drive, Suite 700
Newport Beach, CA 92660
Telephone: (949) 717-3000
E-mail: jegley@calljensen.com
cscheithauer@calljensen.com
TOYOTA AUSTRALIA: Primary Court Ruling Over Defective DPF Upheld
----------------------------------------------------------------
William Stopford of Car Expert reports that Toyota has been
unsuccessful in its appeal against a 2022 Federal Court decision
over payments to HiLux, Fortuner, and Prado owners who suffered
problems with the diesel particulate filters in their vehicles.
On March 27, 2023, the Full Court of the Federal Court of Australia
upheld the primary judge's findings that more than 260,000 Toyotas
equipped with defective DPF systems were not of "acceptable
quality".
While the Court hasn't indicated a total damages amount, the
automotive giant could still be liable for an estimated figure of
$1 billion to the owners of 264,170 diesel-powered HiLux, Fortuner
and LandCruiser Prado models produced between 2015 and 2020.
Lawyers on the class action had previously indicated total damages
would be more than $2 billion, and that some drivers could be
entitled to more compensation depending on how much they were
affected by the loss of their vehicle.
The Court also upheld the finding that Toyota engaged in misleading
or deceptive conduct in marketing and selling the vehicles, and
that the value of the relevant vehicles at the time of their
initial supply has been reduced because of these systems.
It acknowledged Toyota developed an effective fix for the defect in
May 2020 and subsequently offered it for free to its owners; the
company also extended the warranty on this item to 10 years, with
no mileage limit.
The Full Court did, however, find the reduction in value of these
vehicles was 10 per cent, before taking into account the
availability of the 2020 field fix, and not 17.5 per cent as had
been found by the primary judge.
It found there was merit in Toyota's submission that the utility of
its vehicles was unaffected by the defect and its consequences.
It has set aside the primary judge's aggregate damages award, and
the matter is now being sent back to this judge for reassessment of
the damages.
Justice Lee handed down the original judgement in the case of
Williams v Toyota last April.
"Toyota is reviewing the decision of the Full Court of the Federal
Court of Australia," said a spokesperson for Toyota Australia.
"We remain committed to assisting any customer whose vehicle has
experienced the DPF issue and to providing a free-of-charge remedy
that has been available since 2020."
"We believe we have implemented customer-focused and technically
grounded measures to resolve customer concerns."
"Toyota will consider the judgment carefully before making any
further comment."
DPFs are designed to capture and burn off harmful pollutants.
However, many of these vehicles were not regularly running at
conditions conducive to burning off said pollutants (long trips at
a good clip), and became clogged.
Defective DPFs could cause a number of issues in these vehicles,
including excessive white smoke, a reduction in power, and
foul-smelling exhaust fumes.
Toyota fitted a DPF burn-off button to its 2.8-litre diesel in
2018, and upgraded the engine substantially in the middle of 2020.
But the Court found the former patch was largely less effective
than the latter update, which it refers to as a "field fix". [GN]
TOYOTA MOTOR: Faces Class Suit Over RAV4 Roof Leaks
---------------------------------------------------
Saltz Mongeluzzi & Bendesky of Cision PR News Wire reports that
Class-action lawyers at Saltz Mongeluzzi Bendesky, P.C., on March
28, 2023 filed the first lawsuit ( Fishkind v. Toyota Motor Sales,
USA et al. No. Case 2:23-cv-02279) against Toyota Motor Sales, USA,
and affiliated companies including Toyota Motor Corporation
(TM:NYSE) alleging the roof-rail systems on 2019-2021 RAV4 models
are defectively designed and manufactured. The defects result in
rampant leaks from the roof that have caused severe water damage in
the cabin, short-circuiting the SUV's electrical system, rendering
the vehicle unsafe and inoperable. Plaintiffs are filing under
consumer protection laws to hold Toyota responsible for its
failures to protect all impacted RAV4 owners.
Attorney Patrick Howard, of SMB, and counsel to lead plaintiffs
Todd and Judith Fishkind, said following the filing here in federal
court, "Currently active retirees and involved grandparents,
plaintiffs thought they were purchasing the perfect, safe SUV in
their new, white 2019 RAV4. Instead, their 'dream' vehicle turned
out to be undriveable and unsafe all due to the preventable - by
simply using a heavier-duty, water-repellent assembly gasket -
roof-rail defect." Mr. Howard added, "As asserted in the complaint,
Toyota knew about this defect, concealed it from buyers like the
Fishkinds, and has now refused to cover the cost - in the thousands
of dollars - to make it right."
"We were so looking forward to car vacations, driving grandkids to
their games on weekends and after school," explained Mr. Fishkind.
"Instead, our RAV4 - with only 28,000 miles - has been sitting on
the dealer's lot awaiting repairs, including to the water-logged
air-bag units and electrical system - for months, and Toyota's
telling us we've got to pay for their design flaw that caused the
damage that has totally ruined our RAV4. We never even used those
roof rails. We are concerned about other unsuspecting RAV4 owners
being injured in an accident because their air bags don't work or
their car spontaneously shorts out due to a preventable leak. This
has got to be corrected."
The complaint also details how water seeped into the car's
electrical system - and the air bag assemblies - from the factory
original equipment faulty-roof rail channels. On models after 2021,
according to the Complaint, Toyota replaced the thin, porous washer
with a thicker part and the problem seemed to vanish. Besides
ruining crucial safety equipment, water in the 2019-2021 models can
also cause growth of organic material, such as mold, to which the
vehicle's occupants unknowingly may be exposed and could also
result in significant rust damage. Heading the SMB legal team with
Mr. Howard is class-action attorney Simon Paris. [GN]
TRADER JOE'S: Ish-Hurwitz Suit Transferred to S.D. California
-------------------------------------------------------------
The case styled as Rome Ish-Hurwitz, individually and on behalf of
all others similarly situated v. Trader Joe's Company, Inc., Case
No. 1:23-cv-00369 was transferred from the U.S. District Court for
the Northern District of Illinois, to the U.S. District Court for
the Southern District of California on March 22, 2023.
The District Court Clerk assigned Case No. 3:23-cv-00513-GPC-BGS to
the proceeding.
The nature of suit is stated as Other Fraud.
Trader Joe's -- https://www.traderjoes.com/home -- is an American
chain of grocery stores headquartered in Monrovia, California.[BN]
The Plaintiff appears pro se.
Jonathan Marc Jagher, Esq.
FREED KANNER LONDON & MILLEN LLC
923 Fayette Street
Conshohocken, PA 19428
Phone: (610) 234-6487
- and -
Rebecca A. Peterson, Esq.
LOCKRIDGE GRINDAL NAUEN P.L.L.P.
100 Washington Ave. S., Suite 2200
Minneapolis, MN 55401
Phone: (612) 339-6900
Fax: (612) 339-0981
Email: rapeterson@locklaw.com
- and -
Steven A. Kanner, Esq.
FREED KANNER LONDON & MILLEN, LLC
2201 Waukegan Road, Suite 130
Bannockburn, IL 60015
Phone: (224) 632-4500
The Defendants are represented by:
Dawn Sestito, Esq.
O'MELVENY & MYERS
400 South Hope Street, Suite 1050
Los Angeles, CA 90071-2899
Phone: (213) 430-6000
Email: dsestito@omm.com
TRUCONNECT COMMUNICATIONS: Kimberling Files Suit in S.D. California
-------------------------------------------------------------------
A class action lawsuit has been filed against Truconnect
Communications, Inc. The case is styled as Michael Kimberling, on
behalf of himself and all others similarly situated v. Truconnect
Communications, Inc., Case No. 3:23-cv-00517-MMA-MSB (S.D. Cal.,
March 22, 2023).
The nature of suit is stated as Other P.I. for Personal Injury.
TruConnect -- https://www.truconnect.com/ -- offers an unbeatable
selection of affordable Wi-Fi hotspots, budget smartphones, and
affordable mobile data packages.[BN]
The Plaintiff is represented by:
John J. Nelson, Esq.
MILBERG COLEMAN BRYSON PHILLIPS GROSSMAN PLLC
401 W. Broadway, Suite 1760
San Diego, CA 92101
Phone: (858) 209-6941
Fax: (865) 522-0049
Email: jnelson@milberg.com
UNEMPLOYED PHILOSOPHERS: Rhone Files ADA Suit in S.D. New York
--------------------------------------------------------------
A class action lawsuit has been filed against Unemployed
Philosophers, Inc. The case is styled as Tonimarie Rhone, on behalf
of herself and all others similarly situated v. Unemployed
Philosophers, Inc., Case No. 1:23-cv-02432 (S.D.N.Y., March 22,
2023).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Unemployed Philosophers, Inc. -- https://philosophersguild.com/ --
are a novelty gift company that makes smart and funny gifts for
smart and funny people.[BN]
The Plaintiff is represented by:
Noor H. 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
UNEMPLOYMENT INSURANCE: Registration in Class Suit Due April 5
--------------------------------------------------------------
Colin Jackson of Michigan Radio reports that the deadline to
register is Wednesday, April 5th.
Time is running short for Michiganders to participate in a class
action settlement with Michigan's Unemployment Insurance Agency
over false accusations of fraud.
The settlement stretches back to a span from October 2013 through
the August 2015. That's when around 40-thousand people were wrongly
accused of unemployment fraud.
The agency blames its computer system for erroneously flagging
those accounts.
Now, the state is phasing out that old software and agreeing to pay
$20 million to settle the lawsuit.
"We urge anyone who believes they were affected by these
circumstances to register to be considered part of the settlement,"
UIA Director Julia Dale said in a press release.
"This settlement is one of the many reforms the agency is
implementing to create a UIA that will be a national model for
fair, fast and fraud-free service."
That date will allow anyone interested in joining to determine
eligibility. After that, participants face a second deadline in
mid-April to submit a claim. [GN]
UNION PACIFIC: Dixon Labor Suit Removed to C.D. Cal.
----------------------------------------------------
The case styled MELVIN DIXON, individually and on behalf of all
others similarly situated, Plaintiff v. UNION PACIFIC RAILROAD
COMPANY and DOES 1 through 20, inclusive, Defendants, Case No.
23STCV03259, was removed from the Superior Court of California,
County of Los Angeles, to the United States District Court for the
Central District of California on March 23, 2023.
The Clerk of Court for the Central District of California assigned
Case No. 2:23-cv-02183 to the proceeding.
In the complaint, Plaintiff alleges, on behalf of himself and all
others similarly situated, nine total causes of action, eight of
which are for various violations of the California Labor Code and
one for "Unfair Competition" under the California Business &
Professions Code.
Union Pacific Railroad Company is a rail freight transportation
company.[BN]
The Defendant is represented by:
Jason E. Barsanti, Esq.
Brett Greving, Esq.
COZEN O'CONNOR
501 W. Broadway, Suite 1610
San Diego, CA 92101
Telephone: (619) 234-1700
Facsimile: (619) 234-7831
E-mail: jbarsanti@cozen.com
bgreving@cozen.com
UNITED STATES: Faces Class Suit Over Free Speech Suppression
------------------------------------------------------------
The Desert Review reports that on March 30, 2023, Robert F.
Kennedy, Jr., Children's Health Defense (CHD) et al., filed a class
action lawsuit against President Joe Biden and numerous other
federal agents and agencies in the U.S. District Court for the
Western District of Louisiana, Monroe Division. The complaint
alleges that the defendants have colluded with, encouraged and
pressured social media companies to suppress speech that the
government does not want the public to hear and to silence specific
speakers who are critical of federal policy, per a CHD press
release.
This class action, brought on behalf of all Americans who access
the news from social media platforms, seeks nationwide injunctive
relief on behalf of those Americans, the release said. Instead of
seeking monetary damages, the claim asks the court to declare that
the Defendants' conduct violates the First Amendment and to
prohibit them from engaging in any form of social media censorship
in the future.
The release said the complaint calls the government's campaign to
censor online speech one of "the gravest threats to free speech
this country has ever faced."
"Because of the historically unprecedented power wielded by a
handful of behemoth social-media companies over the content of
American public discourse, the federal government's systematic
campaign to induce these companies to censor speech is among the
gravest threats to free speech this country has ever faced.
Since 2020, an army of federal officers, at every level of the
government -- from the White House itself to the FBI, the CIA, the
Department of Homeland Security, the CDC, the Office of the Surgeon
General, and numerous less-well-known federal entities -- has been
engaged in the effort to induce those companies to censor
constitutionally protected speech," per the release.
"U.S. Supreme Court Justice Potter Stewart said, 'Censorship
reflects a society's lack of confidence in itself. It is a hallmark
of an authoritarian regime.' It also violates the constitution,"
CHD Chairman and Chief Litigation Counsel Robert F. Kennedy, Jr.
said in the release. "The collaboration between the White House and
health and intelligence agency bureaucrats to silence criticism of
presidential policies is an assault on the most fundamental
foundation stone of American Democracy."
"The most serious threat to free speech of our time -- and probably
one of the most serious in the nation's history -- is the federal
government's massive, concerted and extraordinarily successful
effort to get social media companies to censor ideas and
information the government doesn't want people to see, say or
hear," said Jed Rubenfeld, co-counsel for Plaintiffs, in the
release. "This lawsuit challenges that censorship campaign, and we
hope to bring it to an end. The real victim is the public, which is
why we've brought this suit as a class action on behalf of everyone
who accesses news from social media."
CHD President and General Counsel Mary Holland said in the release,
"If Government can censor its critics, there is no atrocity it
cannot commit. The public has been deprived of truthful,
life-and-death information over the last three years; this lawsuit
aims to have government censorship end, as it must, because it is
unlawful under our constitution."
Representing the Plaintiffs in addition to Mr. Rubenfeld is
Louisiana Attorney G. Shelly Maturin, II, the release said. [GN]
URTHBOX INC: Hinton Files Suit in Cal. Super. Ct.
-------------------------------------------------
A class action lawsuit has been filed against UrthBox, Inc. The
case is styled as Tatiana Hinton, individually and on behalf of all
others similarly situated v. UrthBox, Inc., Case No. CGC23605380
(Cal. Super. Ct., San Francisco Cty., March 23, 2023).
The case type is stated as "Fraud."
UrthBox -- https://www.urthbox.com/ -- is the ultimate healthy
snack box delivery service filled with GMO-free and organic snacks
& goodies perfect for the home or office.[BN]
The Plaintiff is represented by:
Frederick J. Klorczyk, Esq.
BURSOR & FISHER, P.A.
888 Seventh Avenue, Third Floor
New York, NY 10019
Phone: (646) 837-7150
Fax: (212) 989-9163
Email: fklorczyk@bursor.com
- and -
Julia Kathryn Venditti, Esq.
BURSOR & FISHER, P.A.
1990 N. California Blvd., Suite 940
Walnut Creek, CA 94596-3745
Phone: (925) 300-4455
Fax: (925) 407-2700
Email: jvenditti@bursor.com
US PREMIUM BEEF: Faces Brown Antitrust Suit Over Wage Fixing
------------------------------------------------------------
U.S. Premium Beef, LLC disclosed in its Form 10-K report for the
fiscal year ended December 31, 2022, filed with the Securities and
Exchange Commission on March 3, 2023, that NBP and one of its
subsidiaries are defendants in a putative class action lawsuit
entitled "Brown, et al. v. JBS USA Food company et al." and filed
in the United States District court, Colorado District on November
16, 2022, alleging that the defendants directly and through a wage
survey and benchmarking service exchanged information regarding
labor rates in an effort to depress and fix the rates of wages in
violation of federal antitrust laws and one of NBP's subsidiaries
entered into an employee non-poach agreement with a competitor in
violation of federal antitrust laws.
The plaintiffs seek, among other things, treble monetary damages,
punitive damages, restitution, and pre-and post-judgment interest,
as well as declaratory and injunctive relief.
U.S. Premium Beef, LLC operates an integrated cattle processing and
beef marketing enterprise based in Missouri.
US XPRESS: Reaches $13 Million Securities Class Action Settlement
-----------------------------------------------------------------
Ufonobong Umanah at bloomberglaw.com reports that US Xpress
Enterprises Inc. agreed to pay $13 million to end a class action
alleging the trucking company misled investors during and after its
2018 initial public offering.
The Tennessee-based company allegedly failed to tell investors
about numerous staffing and demand problems, inflating the stock
for five months until USX revealed the truth and share prices fell
nearly 30%.[GN]
VIBE BY CALIFORNIA: Escudero Files Suit in Cal. Super. Ct.
----------------------------------------------------------
A class action lawsuit has been filed against Vibe by California,
Inc., et al. The case is styled as Brianna Escudero, Anira Montoyo,
Erika Jensen, individuals, on behalf of themselves, and on behalf
of all persons similarly situated v. Vibe by California, Inc.,
Alpine Alternative Naturopathic, Inc., Desert Organic Solutions
Collective, EVR Managers, LLC, Port City Alternative of Stockton,
Inc., Vibe Cultivation LLC, Vibe Ukiah, LLC, Case No.
STK-CV-UOE-2023-0002798 (Cal. Super. Ct., San Joaquin Cty., March
22, 2023).
The case type is stated as "Unlimited Civil Other Employment."
Vibe by California, Inc. -- https://www.vibebycalifornia.com/ --
are a Sacramento cannabis dispensary with a simple ethos: It's
Always 420 at Vibe.[BN]
The Plaintiffs are represented by:
Shani O. Zakay, Esq.
ZAKAY LAW GROUP, APLC
5440 Morehouse Dr., Ste. 3600
San Diego, CA 92121-6720
Phone: 619-255-9047
Fax: 858-404-9203
Email: shani@zakaylaw.com
W.W. GRAINGER: Rodriguez Labor Suit Removed to E.D. Cal.
--------------------------------------------------------
The case styled VERONICA RODRIGUEZ, on behalf of herself and others
similarly situated, Plaintiff v. W.W. GRAINGER, INC., and DOES 1 to
100, inclusive, Defendants, Case No. CV-23-000752, was removed from
the Superior Court of the State of California for the County of
Stanislaus, to the United States District Court for the Eastern
District of California on March 20, 2023.
The Clerk of Court for the Eastern District of California assigned
Case No. 1:23-at-00239 to the proceeding.
The Plaintiff's complaint asserts claims for: (1) failure to pay
minimum wages; (2) failure to pay wages and overtime under the
California Labor Code; (3) meal period liability under Labor Code;
(4) failure to provide complete and accurate wage statements in
violation of Labor Code; (5) violation of Business & Professions
Code.
W.W. Grainger, Inc. is an American Fortune 500 industrial supply
company.[BN]
The Defendant is represented by:
Michael J. Nader, Esq.
Elizabeth D. Rhodes, Esq.
OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C.
500 Capitol Mall, Suite 2500
Sacramento, CA 95814
Telephone: (916) 840-3150
Facsimile: (916) 840-3159
E-mail: michael.nader@ogletree.com
elizabeth.rhodes@ogletree.com
WELLS FARGO: Echard Suit Stayed Pending Ruling in Forbearance Suit
------------------------------------------------------------------
Judge Michael H. Watson of the U.S. District Court for the Southern
District of Ohio, Eastern Division, stays the case, Brian Echard,
on behalf of themselves and all others similarly situated, et al.,
Plaintiffs v. Wells Fargo Bank N.A., et al., Defendants, Case No.
2:21-cv-5080 (S.D. Ohio), pending the resolution of In re Wells
Fargo Forbearance Litigation, Case No. 3:20-cv-06009 (N.D. Cal.).
In March 2020, Congress passed the Coronavirus Aid, Relief, and
Economic Security Act (the "CARES" Act). In relevant part, the
CARES Act instructed mortgagees and mortgage services to create
COVID-19 mortgage forbearance programs for all federally backed
mortgages.
Wells Fargo created such a Forbearance Program and allegedly placed
borrowers into the Forbearance Program without the borrowers'
consent or knowledge. In many cases, it allegedly did not notify
borrowers that it had placed their mortgages in the Forbearance
Program, and when it did provide notice, the notice was allegedly
insufficient. In addition, after placing a mortgage into the
Forbearance Program, Wells Fargo allegedly failed to properly apply
payments made to the mortgage, to report payments made to credit
agencies, and to properly provide statements to the borrower.
Litigation quickly arose out of these alleged events. In July and
August of 2020, two different plaintiffs filed class action
complaints in the Northern District of California -- Case No.
3:20-cv-5296 (N.D. Cal.) and Case No. 3:20-cv-06009 (N.D. Cal.). By
January 2021, the Northern District of California consolidated
those cases into one action ("In re Wells Fargo"); Judge James
Donato presides over the consolidated action.
The In re Wells Fargo plaintiffs allege the same underlying facts
described and assert the following claims: (1) violation of the
Racketeer Influenced and Corrupt Organizations Act ("RICO"); (2)
violation of the Truth in Lending Act ("TILA"); (3) violation of
the Real Estate Settlement Procedures Act ("RESPA"); (4) violation
of the Fair Credit Reporting Act ("FCRA"); (5) breach of the
implied covenant of good faith and fair dealing; (6) unjust
enrichment; (7) gross negligence; and (8) several state statutory
consumer protection, credit reporting, or debt collection claims.
The In re Wells Fargo plaintiffs propose the following nationwide
class definition: All residential mortgage borrowers for whom Wells
Fargo Bank, N.A., placed a residential mortgage into forbearance or
continued forbearance without receiving the borrower's request or
continued consent for a forbearance and affirmance that the
borrower is experiencing a financial hardship due to COVID-19.
They also propose similar state-specific sub-class definitions for
the states of California, Florida, Georgia, New York, Texas, and
Virginia.
Echard filed his first class-action complaint in the Western
District of Washington in late January 2021. Several months later,
the Western District of Washington transferred Echard to the
Northern District of California, but Judge Donato was not assigned
to the case. Subsequently, the Northern District of California
granted a joint motion to transfer Echard to this Court.
The Echard Plaintiffs allege substantially the same underlying
facts against Wells Fargo and assert the following claims: (1)
breach of contract and breach of the implied covenant of good faith
and fair dealing; (2) breach of fiduciary duty; (3) fraud; (4)
violation of the TILA; (5) violation of the RESPA; (6) violation of
the FCRA; (7) unjust enrichment; (8) negligence and negligent
misrepresentation; and (9) violation of Ohio's Deceptive Trade
Practice Act. T
After Echard was removed to this Court, the Echard parties
purported to reach a nationwide class settlement of all claims
raised in Echard. The Echard parties now move for preliminary
approval of that class-action settlement.
The settlement agreement defines the proposed settlement class as
follows: All persons in the United States who: (a) had a Mortgage
serviced by Wells Fargo that was placed into a Forbearance Without
Adequate Informed Consent between March 1, 2020 and Dec. 31, 2021;
(b) were not in a Chapter 13 bankruptcy case on the date that the
person was placed into the Forbearance; and (c) are not Wells
Fargo's officers, directors, or employees, Counsel for Wells Fargo,
or Class Counsel.
As is obvious from the definition, the settlement class in Echard
would encompass some of the plaintiffs in In re Wells Fargo. Not
surprisingly, perhaps, the In re Wells Fargo plaintiffs seek to
intervene in this case and the Echard parties oppose that
intervention.
Judge Watson explains that the first-to-file rule provides that
when actions involving nearly identical parties and issues have
been filed in two different district courts, the court in which the
first suit was filed should generally proceed to judgment. Courts
weigh three factors when considering whether to apply the
first-to-file rule: (1) the chronology of events, (2) the
similarity of the parties involved, and (3) the similarity of the
issues or claims at stake.
In this case, all the factors favor applying the first-to-file
rule, and no equitable considerations suggest against applying it.
Therefore, the rule applies.
As to the chronology of the actions, In re Wells Fargo was filed
first, and the first factor weighs in favor of applying the
first-to-file rule.
As to the the similarity of the parties, the In re Wells Fargo and
Echard parties substantially overlap. The proposed nationwide
classes in Echard and In re Wells Fargo substantially overlap.
Accordingly, because the Defendants are the same and there is
substantial overlap between the putative classes, the "similarities
of the parties" factor weighs in favor of applying the
first-to-file rule.
With respect to the similarities of the issues at stake, Judge
Watson finds that the issues substantially overlap. To start, the
Echard and In re Wells Fargo plaintiffs bring many of the same
claims, including alleged violations of TILA, RESPA, and FCRA.
Next, the Echard and In re Wells Fargo plaintiffs assert state-law
claims for unjust enrichment, breach of the covenant of good faith
and fair dealing, and various types of consumer or borrower
protection state statutes. Moreover, if this case were to have a
finally approved settlement, it would not obviate the need for
further litigation in In re Wells Fargo. Accordingly, the third
factor weighs in favor of applying the first-to-file rule.
Having found all three factors met, Judge Watson must now consider
whether any equitable considerations in the case counsel against
application of the rule. He says there is no evidence that In re
Wells Fargo was an anticipatory suit, filed in bad faith, or an
exercise in forum shopping. Further, there is nothing about either
Echard or In re Wells Fargo that is so extraordinary that applying
the first-to-file rule would be inappropriate. Accordingly, Judge
Watson applies the first-to-file rule.
The only remaining question is what disposition is appropriate.
Among the available options are staying, dismissing, or
transferring the case. Under the circumstances of the case, Judge
Watson says a sua sponte transfer is inappropriate.
For these reasons, Judge Watson stays the case pending the
resolution of In re Wells Fargo Forbearance Litigation, Case No.
3:20-cv-06009 (N.D. Cal.). The parties are ordered to file a report
outlining the status of the California litigation within 180 days.
If the Echard parties would prefer to have this case transferred
back to the Northern District of California, they may file a joint
motion to that effect within 60 days.
A full-text copy of the Court's March 15, 2023 Opinion Order is
available at https://tinyurl.com/2vt6fnb2 from Leagle.com.
WESTLAKE ROYAL: Court Narrows Claims in Amended Meraz-Valencia Suit
-------------------------------------------------------------------
In the case, PEDRO MERAZ-VALENCIA, on behalf of himself and the
putative Class Members, Plaintiff v. WESTLAKE ROYAL ROOFING, LLC;
and DOES 1-100, inclusive, Defendants, Case No.
2:22-cv-00491-DAD-AC (E.D. Cal.), Judge Dale A. Drozd of the U.S.
District Court for the Eastern District of California grants in
part and denies in part Westlake's motion to dismiss the second
amended complaint.
On Jan. 13, 2023, Meraz-Valencia filed the operative second amended
complaint ("SAC") in this putative wage-and-hour class action
against his former employer, Westlake. The Court previously
dismissed the Plaintiff's first amended complaint ("FAC") in its
entirety pursuant to Federal Rule of Civil Procedure 12(b)(6) but
granted him leave to file the SAC in an oral ruling issued on Dec.
8, 2022. In addition, the Court granted the Defendant's motion to
strike various remedies requested in the FAC.
In his SAC, the Plaintiff alleges that he was employed by the
Defendant as a helper for various projects from Oct. 1, 2018 to
July 12, 2021 in Lathrop, California and was classified as an
hourly, non-exempt employee who was paid hourly rates that ranged
from $16 to $19. He further alleges that the Defendant is a
nationwide manufacturer of clay and concrete roof tiles with four
manufacturing plants in California employing hundreds of hourly,
non-exempt workers similarly situated to him.
The Plaintiff alleges that he suffered various wage-and-hour
violations under California's Labor Code when he and the putative
class members were required to wait in line, to go through
temperature checks and to answer COVID-19 screening questions prior
to clocking in for the start of their shift. In addition to not
being compensated for time spent undergoing COVID-19 screening
procedures, he alleges he missed meal breaks due to "understaffing"
and "work requirements."
Based on the Defendant's alleged failure to pay for time worked
off-the-clock or premiums for missed meal breaks, the Plaintiff
alleges that he and the putative class members were issued
inaccurate wage statements and were not paid all wages due upon
their termination.
Based on these allegations, the Plaintiff asserts in the SAC the
following claims on behalf of himself and putative class members:
(1) failure to pay minimum wages in violation of California Labor
Code Sections 1182.11, 1182.12, 1194, 1197, 1197.1, and 1198; (2)
failure to pay overtime wages in violation of California Labor Code
Section 510; (3) failure to provide and/or make available a second
meal break in violation of California Labor Code Sections 226.7 and
512; (4) failure to provide timely and accurate itemized wage
statements in violation of California Labor Code Sections 226,
226.3, and 226.6; (5) waiting time penalties in violation of
California Labor Code Sections 201-203; and (6) violation of
California's Unfair Competition Law ("UCL"), California Business
and Professions Code Sections 17200, et seq., predicated on the
Plaintiff's California Labor Code violations.
On Feb. 2, 2023, the Defendant filed the pending motion, seeking
dismissal only of his third, fourth, fifth, and sixth causes of
action. The Plaintiff filed an opposition to the pending motion on
Feb. 16, 2023 and the Defendant filed its reply thereto on Feb. 27,
2023.
With respect to the Plaintiff's third cause of action, he alleges
that the Defendant failed to provide or make available second meal
breaks and did not provide premium pay when those second meal
breaks were missed. The Defendant moves to dismiss this claim,
contending that the Plaintiff has not alleged sufficient factual
allegations to plausibly state an entitlement to relief.
Judge Drozd concludes that the allegations of the SAC do not
plausibly give rise to an entitlement to relief with respect to the
Plaintiff's meal break claim. As an initial matter, he says the
Plaintiff's vague reference to "work requirements" that "prevented"
him from taking meal breaks is a borderline legal conclusion
couched as a factual allegation that is so generic it could apply
to any employee in any industry. In addition, he does not allege
that he skipped the second meal break because of an impediment
created by the Defendant or discouragement by it as opposed to due
to his own decision.
Accordingly, Judge Drozd dismisses the Plaintiff's third cause of
action for failure to provide or make available second meal breaks.
The Plaintiff is granted leave to file a third amended complaint as
to his meal break claim. Judge Drozd observes that the Plaintiff
likely can cure the noted deficiency by amendment. If, for example,
the unspecified "work requirements" are productivity or quota
requirements and additional factual allegations are added that
address the deficiencies identified, then the Plaintiff will have
stated a plausible meal break claim.
In the Plaintiff's fourth cause of action, he alleges that the
Defendant failed to provide accurate itemized wage statements. The
Defendant moves to dismiss this fourth cause of action arguing that
the Plaintiff has failed to allege sufficient facts to support an
essential element of an itemized wage statement claim and to
identify a single factual exemplar of an inaccurate wage statement
he actually received.
Judge Drozd denies the Defendant's motion to dismiss the
Plaintiff's fourth cause of action to the extent it is based on the
Defendant's failure to include time worked while undergoing
COVID-19 screening procedures. However, to the extent the
Plaintiff's fourth cause of action is based on the Defendant's
failure to include premium pay for missed meal breaks, the
Plaintiff has not adequately stated a claim for inaccurate wage
statements on that basis solely due to the dismissal of hi third
cause of action with leave to amend.
Were the Plaintiff to remedy his deficient meal break claim, then
his itemized wage statement claim predicated on the Defendant's
failure to include premium pay for missed meal breaks would be
remedied as well. For this reason, should the Plaintiff adequately
allege his meal break claim, his wage statement claim predicated on
the alleged failure to include premium pay for missed meal breaks
will be automatically reinstated.
The Plaintiffs' fifth cause of action is for failure to pay all
wages due upon separation from employment in violation of
California Labor Code Sections 201, 202, and 203. The Defendant
moves to dismiss this fifth cause of action due to the Plaintiff's
failure to allege sufficient facts to support an essential element
of his waiting time penalties claim.
Judge Drozd denies the Defendant's motion to dismiss the
Plaintiff's fifth cause of action to the extent it is based on the
Defendant's failure to include time worked undergoing COVID-19
screening protocols. However, to the extent the Plaintiff's fifth
cause of action is based on the Defendant's failure to pay all
premium pay due for missed meal breaks, the Plaintiff has not
stated a claim for waiting time penalties solely due to the
dismissal of his third cause of action.
Were the Plaintiff to remedy his deficient meal break claim, then
his waiting time penalties claim would be remedied as well. For
this reason, should he adequately allege this meal break claim, his
waiting time penalties claim predicated on not receiving premium
pay for miss meal breaks will be automatically reinstated.
The Plaintiffs' sixth cause of action asserts a violation of
California's UCL. The Defendant seeks to dismiss this claim
because: (1) to the extent the Plaintiff's UCL claim is based on
his deficient claim for second meal period violations, his
derivative UCL claim also fails to that extent; and (2) the
Plaintiff's UCL claim is improperly predicated on payments
allegedly owed to him under California Labor Code Sections 203 and
226 because such payments are not recoverable as restitution.
Having found that the Plaintiff's third cause of action for failure
to provide meal breaks was not sufficiently alleged, Judge Drozd
grants the Defendant's motion to dismiss the Plaintiff's UCL claim
to the extent it is based upon that particular violation of the
California Labor Code. Moreover, the Plaintiff does not oppose the
Defendant's motion to dismiss the Plaintiff's UCL claim as
improperly predicated on violations of California Labor Code
Sections 203 and 226 and the motion to dismiss on that basis is
granted.
For all these reasons, Judge Drozd grants in part and denies in
part the Defendant's motion to dismiss as follows:
a. The Court grants the Defendant's motion to dismiss the
Plaintiffs' third cause action for failure to provide second meal
breaks, with leave to amend;
b. The Court grants the Defendant's motion to dismiss the
Plaintiff's fourth and fifth causes of action to the extent they
are predicated on his third cause of action, with leave to amend;
c. The Court grants the Defendant's motion to dismiss the
Plaintiff's sixth cause of action to the extent it is based on his
third cause of action, with leave to amend;
d. The Court grants the Defendant's motion to dismiss the
Plaintiff's sixth cause of action to the extent it is based on
California Labor Code Sections 203 and 226, without leave to amend;
and
e. The Defendant's motion to dismiss is otherwise denied.
The Plaintiff will file a third amended complaint, or a notice of
an intent to proceed on the remaining claims as alleged in the SAC,
within 21 days from the issuance of the Order.
A full-text copy of the Court's March 15, 2023 Order is available
at https://tinyurl.com/53u7v9n6 from Leagle.com.
WHELAN SECURITY: Faces Teems Wage-and-Hour Suit in California
-------------------------------------------------------------
KENNETH TEEMS, individually and on behalf of all others similarly
situated, Plaintiff v. WHELAN SECURITY OF CALIFORNIA, INC.;
GARDAWORLD SECURITY CORPORATION; and DOES 1 to 100, inclusive,
Defendants, Case No. 23STCV06493 (Cal. Super., Los Angeles Cty.,
March 23, 2023) is a class action against the Defendants for
violations of the California Labor Code.
According to the complaint, the Defendants violated the labor code
by their failure to pay wages for all hours worked at minimum wage
and all overtime hours worked at the overtime rate of pay; failure
to authorize or permit all legally required and/or compliant meal
periods or pay meal period premium wages; failure to authorize or
permit all legally required and/or compliant rest periods or pay
rest period premium wages; indemnification for all necessary
expenditures or losses incurred by employees in direct consequence
of discharging their duties; failure to pay wages for accrued paid
sick time at the regular rate of pay; statutory penalties for
failure to timely pay earned wages during employment; statutory
penalties for failure to provide accurate wage statements; and
statutory waiting time penalties in the form of continuation wages
for failure to timely pay employees all wages due upon separation
of employment, says the suit.
The Plaintiff was employed by the Defendants in an hourly position
in Los Angeles, California from in or around September 2021, until
on or about April 6, 2022.
Whelan Security of California, Inc. is a security guard company
doing business in California.
GardaWorld Security Corporation is a security and patrolling
services provider doing business in California. [BN]
The Plaintiff is represented by:
Joseph Lavi, Esq.
Jordan D. Bello, Esq.
Vincent C. Granberry, Esq.
Danielle E. Montero, Esq.
LAVI & EBRAHIMIAN, LLP
8889 W. Olympic Blvd., Suite 200
Beverly Hills, CA 90211
Telephone: (310) 432-0000
Facsimile: (310) 432-0001
E-mail: jlavi@lelawfirm.com
jbello@lelawfirm.com
vgranberry@lelawfirm.com
dmontero@lelawfirm.com
WORKING BETTER: Underpays Delivery Drivers, Tafoya Suit Alleges
---------------------------------------------------------------
JACOB TAFOYA, on behalf of himself and all others similarly
situated, Plaintiff v. WORKING BETTER TOGETHER LLC, SAMEER
MERCHANT, DOE CORPORATION 1-10, and JOHN DOE 1-10, Defendants, Case
No. 1:23-cv-00250-JHR-KK (D.N.M., March 23, 2023) is a class action
against the Defendants for violations of the Fair Labor Standards
Act and the New Mexico Minimum Wage Act including failure to pay
minimum and overtime wages, unlawful wage deductions, untimely
payment of wages, and unjust enrichment.
The Plaintiff worked at the Papa John's store as a delivery driver,
located at 417 Tramway Boulevard NE, Albuquerque, New Mexico from
approximately August 2022 to December 2022.
Working Better Together LLC is a company that owns and operates
Papa John's Pizza stores in New Mexico. [BN]
The Plaintiff is represented by:
Christopher Moody, Esq.
MOODY & STANFORD, P.C.
4169 Montgomery Blvd., NE
Albuquerque, NM 87109
Telephone: (505) 944-0033
Facsimile: (505) 944-0034
E-mail: moody@nmlaborlaw.com
- and -
Andrew R. Biller, Esq.
Andrew P. Kimble, Esq.
BILLER & KIMBLE, LLC
8044 Montgomery Road, Suite 515
Cincinnati, OH 45236
Telephone: (513) 202-0710
Facsimile: (614) 340-4620
E-mail: abiller@billerkimble.com
akimble@billerkimble.com
YUMIKO USA LLC: Hwang Files ADA Suit in E.D. New York
-----------------------------------------------------
A class action lawsuit has been filed against Yumiko USA, LLC. The
case is styled as Jenny Hwang, on behalf of herself and all others
similarly situated v. Yumiko USA, LLC, Case No. 1:23-cv-02215
(E.D.N.Y., March 22, 2023).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
YUMIKO -- https://www.yumiko.com/us_en/ -- creates long lasting and
great fitting dance and athletic wear of the highest quality.[BN]
The Plaintiff is represented by:
Mars Khaimov, Esq.
14749 71st Ave.
Flushing, NY 11367
Phone: (917) 915-7415
Email: mars@khaimovlaw.com
ZILLOW GROUP: Faces Shareholder Suits Over SEC Filings
------------------------------------------------------
Zillow Group, Inc. disclosed in its Form 10-K report for the fiscal
year ended December 31, 2022, filed with the Securities and
Exchange Commission on February 15, 2023, that on November 16,
2021, November 19, 2021, and January 6, 2022, three purported class
action lawsuits were filed against the company and certain of its
executive officers, alleging, among other things, violations of
federal securities laws on behalf of a class of those who purchased
company's stock between August 7, 2020, and November 2, 2021.
The three purported class action lawsuits, captioned "Barua v.
Zillow Group, Inc. et al.," "Silverberg v. Zillow Group, et al."
and "Hillier v. Zillow Group, Inc. et al." were brought in the U.S.
District court for the Western District of Washington and were
consolidated on February 16, 2022. On May 12, 2022, the plaintiffs
filed their amended consolidated complaint which alleges, among
other things, that the company issued materially false and
misleading statements regarding company's Zillow Offers business.
The complaints seek to recover, among other things, alleged damages
sustained by the purported class members as a result of the alleged
misconduct. The company moved to dismiss the amended consolidated
complaint on July 11, 2022, plaintiffs filed their opposition to
the motion to dismiss on September 2, 2022, and the company filed a
reply in support of the motion to dismiss on October 11, 2022. On
December 7, 2022, the court rendered its decision granting the
defendant's motion to dismiss, in part, and denying the motion, in
part. In January 23, 2023, the defendants filed their answer to the
consolidated complaint.
Zillow Group provides marketing software and technology solutions
based in Washington.
[^] 2023 Class Action Money & Ethics Conference - Speakers Named
----------------------------------------------------------------
Register now for the 7th Annual Class Action Money & Ethics
Conference! The in-person conference will be held at The Harmonie
Club, New York City, on Monday, May 8, 2023.
This year's event boasts of an All-Star lineup of speakers:
* Michael P. Canty, Partner, Labaton Sucharow LLP
* Neil Kornswiet, CEO, Optium Capital LLC
* Gerald L. Maatman, Jr., Partner, Duane Morris LLP
* Edward E. Neiger, Esq., Co-Managing Partner, Ask LLP
* Graham Newman, Partner, Chappell, Chappell & Newman
* Bola Oyesanya, Managing Director and Private Banker, Citi
Law Firm Group
* Paige Richardson, Director of Operations, Milestone
* Jennifer A. Riley, Partner, Duane Morris LLP
* Daniel Stefany, Associate, Hunton Andrews Kurth LLP
* Thomas R. Waskom, Partner, Hunton Andrews Kurth LLP
Ms. Oyesanya is this year's conference chair.
The value-packed event features special presentations from keynote
speakers, live panel discussions with industry experts and
networking with other professionals.
This year's conference sponsors are:
* Premier Sponsor:
Citi
* Major Sponsors:
Baird Mandalas Brockstedt
Bock Hatch & Oppenheim, LLC
Schochor, Federico and Staton, P.A.
* Patron Sponsors:
Huntington
* Advocate Sponsors:
Atticus
Battea Class Action Services
Simpluris
Interested in becoming a speaker in May? Contact:
Bernard Toliver, CMP
(240) 629-3300 ext. 149
E-mail: bernard@beardgroup.com
Visit https://www.classactionconference.com/ for more information.
The conference is presented by Beard Group, Inc.
*********
S U B S C R I P T I O N I N F O R M A T I O N
Class Action Reporter is a daily newsletter, co-published by
Bankruptcy Creditors' Service, Inc., Fairless Hills, Pennsylvania,
USA, and Beard Group, Inc., Washington, D.C., USA. Rousel Elaine T.
Fernandez, Joy A. Agravante, Psyche A. Castillon, Julie Anne L.
Toledo, Christopher G. Patalinghug, and Peter A. Chapman, Editors.
Copyright 2023. All rights reserved. ISSN 1525-2272.
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