/raid1/www/Hosts/bankrupt/CAR_Public/230405.mbx
C L A S S A C T I O N R E P O R T E R
Wednesday, April 5, 2023, Vol. 25, No. 69
Headlines
ADAPTIVE RESEARCH: General Pretrial Management Entered in Luxwear
ALEJANDRO MAYORKAS: IDLC, et al., Win Class Certification
AMAZON.COM SERVICES: Hamilton Appeals Labor Suit Dismissal Ruling
AMC NETWORKS: Discloses Personal Info to Facebook, Vela Suit Says
ARBOR REALTY: Class Cert Bid Filing Extended to May 26
ASSETCARE LLC: Weiss Sues Over Illegal Debt Collection Letter
ASSURANCE IQ: Filing for Class Cert. Bid Due Jan. 17, 2024
AUS INC: Fails to Protect Customers' Info, Fernandez Suit Says
AVIVA CANADA: Loses Bid to Quash Suit for COVID-Related BI Claims
BLENDTEC INC: All Fact Discovery Must be Completed by July 14
BURGER KING: Administrative Bid to Seal Exhibits OK'd
CALVERT'S EXPRESS: FLSA Settlement in Heitzman Gets Final Nod
CANADA: Unions Urge Government to Settle Discrimination Class Suit
CIRCLE MEDICAL: Fails to Pay Coordinators' Minimum, OT Wages
CITIGROUP INC: Consolidated Securities Suit Dismissed W/o Prejudice
CLOSET WORLD: Faces Nabiyev Class Suit Over False Limited-Time Sale
COLUMBUS REGIONAL: Goodman, et al., Seek Class Certification
CORECIVIC OF TENNESSEE: Fails to Pay Nurses' OT Wages Under FLSA
CREDIT SUISSE: Ct. Certifies Securities Act Class in Set Capital
CVS HEALTH: Wins Administrative Bid to Seal Confidential Documents
DETROIT, MI: Howard Suit Seeks to Certify Homeowners Class
DIGNITY HEALTH: Hooks Must File Class Certification Bid by May 5
DISH NETWORK: Bids for Lead Plaintiff Appointment Due May 22
EASSIT INC: Court Dismisses Lewis Suit without Prejudice
EPIQ CORPORATE: Seeks July 6 Extension to File Class Cert. Response
EXPERIAN INFO: Bid to Compel Arbitration OK'd in Alvarez Suit
FAIRFIELD HEALTHCARE: Aboah Bid for Rule 23 Class Status Tossed
FASTTRACK RENT: Faces Taylor Wage-and-Hour Suit in California
FIRSTENERGY CORP: PFP Must Produce Withheld Docs in Securities Suit
FLOWERS FOODS: Bid for Decertification Denied in Ludlow Suit
FORSTER GARBUS: Bid for Summary Judgment in Ross FDCPA Suit Denied
GEICO GENERAL: Faces Suit Over Alleged Underpayment of Auto Claims
GEICO: Court Awards $2.5MM in Attoryney's Fees
GEICO: Russo Pending Class Cert Bid Terminated
GENERAL MOTORS: Faces Class Action Over "Chevy Shake" Defect
GERBER PRODUCTS: Court Narrows Claims in Norman's 2nd Amended Suit
GRANITE SERVICES: Rodriguez Seeks to File Exhibits Under Seal
GRIDSUM HOLDING: Opposition to Class Cert Bid Due May 12
HARMON STORES: Palmeri Sues Over Mass Layoff Without 60-Day Notice
HELIOS CABLE: Fails to Pay OT Wages Under FLSA, Smith Suit Alleges
HOME POINT: Al-Johar Seeks to Certify Class in Securities Suit
HOWARD BARTON: Faces Ovalle ERISA Suit Over Unfair Del-Air Deal
JOHN MCKOWEN: Class Settlement in Paulson Suit Gets Final Nod
JOHNSON & JOHNSON: Bid to Dismiss Amended Hernandez Suit Granted
JOHNSON & JOHNSON: Court Dismisses Hernandez Suit With Prejudice
JP BODEN: Secretly Reports Visitor's Info to FB, Rodriguez Alleges
KINDERFARMS LLC: Faces Noori Suit Over Kids' Medicine False Ads
KNIGHT TRANSPORTATION: $400K Deal in Martinez Suit Has Prelim. Nod
KONING & ASSOCIATES: Willis Loses Class Certification Bid
LATITUDE FINANCIAL: Faces Class Suit Over Data Breach Allegations
LLOYD'S OF LONDON: LAL, et al., Seek to Certify Class
LYFT INC: S.D. New York Certifies Three Classes in Lowell Suit
MALLINCKRODT PLC: Faces Steamfitters Local Union Suit
MALLINCKRODT PLC: Marrietta City Suit Dismissed
MARICOPA, AZ: Houston Bid to Certify Class Denied as Moot
MATT MARTORELLO: Duggan Seeks to Impound Class Cert Reply Exhibit
MDL 2913: E-Cigarette Targets Youth Market, Vancouver School Says
MERCEDES-BENZ USA: Faces Suit Over Undisclosed Coolant Seal Defect
MICHIGAN: Settlement Claim Forms Submission Due April 14
NATIONAL COLLEGIATE: $45K Sanction Awarded to Seaman Against TSI
NEW YORK, NY: Court Denies Bid to Dismiss Leslie Class Suit v. NYPD
NORFOLK SOUTHERN: Team Ohio Seeks Appointment as Class Counsel
NOVAVAX INC: Sinnathurai, et al., Seek to Certify Class Action
ONLY NATURAL: Tice Sues Lomacchios for Misappropriation of Assets
OUTDOOR GEAR: All Class Cert Discovery Must be Completed by Oct. 15
P.C. RICHARD: Douglass Suit Wins Rule 23 Class Certification
PAYWARD INC: Singh Sues Over Illegal Collection of Biometrics
ROCKWELL COLLINS: Bid to Remand Alvarado Suit to State Court Denied
ROMULUS INC: Fails to Pay Minimum Wages Under FLSA, Swonger Says
SALVATION ARMY: Loses Bid to Junk Geiser Suit
SHAMROCK CABINET: Brandon, et al., Seek Approval of Settlement Deal
SHANGHAI CAFE: Chen Is Entitled to Default Judgment, Court Says
ST. LOUIS, MO: Parties in Robertson Must File Dismissal Papers
STANLEY BLACK: Bids for Lead Plaintiff Appointment Due May 23
STANLEY BLACK: Faces Rammohan Suit Over 16% Day-Over-Day Share Drop
STATE FARM: Appeals Partial Dismissal Ruling in Varela Suit
STURM & RUGER: Jones Must File Class Cert. Bid by June 5, 2024
SUEZ WTS: Bulnes Must File Bid for Class Certification by August 4
SVB FINANCIAL: Bids for Lead Plaintiff Appointment Due May 12
TRIP MATE: Third Cir. Affirms Dismissal of Rivard Class Complaint
TUFTS UNIVERSITY: Court Allows Bid to Seal & Impound Documents
UNITED NATURAL: Bids for Lead Plaintiff Appointment Due May 19
UNITED STATES: Bid to Stay Initial Discovery Deadlines Nixed
UNITED STATES: Faces Suit Over Campaign to Censor Online Speech
UNIVERSAL CITY: Woulfe, et al., Seek to Certify Two Classes
VALERY JOSEPH: Velazquez Sues Over General Workers' Unpaid Wages
WALMART INC: Kochar False Ad Suit Transferred to E.D. Ark.
WAN FU YUAN: Class Cert. Opening Brief Set for April 14
WASHINGTON COUNTY, AL: Wins Bid to Extend Time to Response
WFM PRIVATE: Stipulation & Revised Case Scheduling Order Entered
WILLIAMS-SONOMA: April 11 Extension to Oppose Class Cert. Sought
WILLIAMS-SONOMA: Must Produce Class Cert Experts by April 27
WOOD GROUP: Iannotti Seeks Time Extension to File Class Cert Bid
WYNN RESORTS: Appeals Class Cert. Ruling in Ferris Securities Suit
YORK COUNTY, PA: Judge Rejects Class Status in Prisoners' Suit
[^] 2023 Class Action Money & Ethics Conference - Speakers Named
*********
ADAPTIVE RESEARCH: General Pretrial Management Entered in Luxwear
-----------------------------------------------------------------
In the class action lawsuit captioned as LUXWEAR LTD., et al., v.
ADAPTIVE RESEARCH & DEVELOPMENT GROUP, LLC d/b/a ADAPTIV BIOMED,
Case No. 1:22-cv-05458-AT-BCM (S.D.N.Y.), the Hon. Judge Barbara
Moses entered an order regarding general pretrial management as
follows:
-- All pretrial motions and applications, including those
related to scheduling and discovery (but excluding motions
to dismiss or for judgment on the pleadings, for injunctive
relief, for summary judgment, or for class certification
under Fed. R. Civ. P. 23), must be made to Judge Moses and
in compliance with this Court's Individual Practices in
Civil Cases, available on the Court's website at
https://nysd.uscourts.gov/hon-barbara-moses. Parties and
counsel are cautioned.
-- All discovery must be initiated in time to be concluded by
the close of discovery set by the Court.
-- Discovery applications, including letter-motions
requesting discovery conferences, must be made promptly
after the need for such an application arises and must
comply with Local Civil Rule 37.2 and § 2(b) of Judge
Moses's Individual Practices.
-- The Court notes that the Defendant has a deadline of March
28, 2023 to renew its request for the discovery relief
outlined in its letter dated March 13, 2023, if necessary.
A copy of the Court's order dated March 15, 2023 is available from
PacerMonitor.com at https://bit.ly/3LODt84 at no extra charge.[CC]
ALEJANDRO MAYORKAS: IDLC, et al., Win Class Certification
---------------------------------------------------------
In the class action lawsuit captioned as Immigrant Defenders Law
Center (IDLC), et al. v. Alejandro Mayorkas, et al., Case No.
2:20-cv-09893-JGB-SHK (C.D. Cal.), the Hon. Judge Jesus G. Bernal
entered an order:
(1) granting in part and denying in part the defendants'
motion to dismiss; and
(2) granting the Plaintiffs' Motion for Class Certification.
Because the Plaintiffs have established the requirements of both
Rule 23(a) and Rule 23(b), the Certification Motion is granted.
The Court certifies the Inactive MPP 1.0 Class and the Terminated
Case Subclass, In Abstentia Subclass, and Final Order Subclass. The
Court appoints all remaining Individual the Plaintiffs as
representatives of the Inactive MPP 1.0 Class. It appoints the
Plaintiffs Lidia Doe and Antonella Doe as representatives of the
Terminated Case Subclass; Chepo Doe, Yesenia Doe, and Sofia Doe as
representatives of the In Abstentia Subclass; and Gabriela Doe,
Ariana Doe, Francisco Doe, Reina Doe, Carlos Doe, and Dania Doe as
representatives of the Final Order Subclass.
On October 28, 2020, the Plaintiffs Immigrant Defenders Law Center,
Jewish Family Service of San Diego , and eight
individuals filed a Complaint for Injunctive and Declaratory Relief
against the Defendants.
The Defendants included the Secretary of the Department of Homeland
Security, the Chief of U.S. Border Patrol, U.S. Immigrations and
Customs Enforcement and others. As alleged in the Complaint,
Organizational the Plaintiffs are nonprofit organizations which
exist to serve immigrant and refugee communities.
Individual the Plaintiffs are asylum seekers subject to the Migrant
Protection Protocols ("MPP") and required to wait in Mexico while
their asylum applications are adjudicated.
The Plaintiffs sought to enjoin the Defendants from continuing to
implement policies affecting asylum seekers waiting at the
U.S.-Mexico border.
On November 9, 2020, the Plaintiffs filed an emergency motion for
provisional class certification and an emergency motion for a
preliminary injunction. On November 24, 2020, the Defendants
opposed both motions.
On November 30, 2020, the Plaintiffs replied. On December 14, 2020,
the Court held a telephonic hearing on both of the Plaintiffs'
motions. After the telephonic hearing, the Defendants filed a
Motion to Transfer Venue, which the Court denied on January 22,
2021.
The Plaintiffs move to certify the following class of individuals
(the "Inactive MPP 1.0 Class"):
"All individuals subjected to MPP 1.0 prior to June 1, 2021, who
remain outside the United States and whose cases are not currently
active due to termination of proceedings or a final removal order."
Within the Inactive MPP 1.0 Class, the Plaintiffs move to certify
three subclasses:
1. The "Terminated Case Subclass":
"All individuals subjected to MPP 1.0 prior to June 1,
2021, who remain outside the United States and whose MPP
proceedings were terminated and remain inactive."
2. The "In Absentia Subclass":
"All individuals subjected to MPP 1.0 prior to June 1,
2021, who remain outside the United States, received an in
absentia order of removal in MPP proceedings, and whose
cases have not been reopened and are not currently pending
review before a federal circuit court of appeals.
3. The "Final Order Subclass":
"All individuals subjected to MPP 1.0 prior to June 1,
2021, who remain outside the United States, received a
final order of removal for reasons other than failure to
appear for an immigration court hearing, and whose cases
have not been reopened and are not currently pending
review before a federal circuit court of appeals."
A copy of the Court's order dated March 15, 2023 is available from
PacerMonitor.com at https://bit.ly/3z1Tj7z at no extra charge.[CC]
AMAZON.COM SERVICES: Hamilton Appeals Labor Suit Dismissal Ruling
-----------------------------------------------------------------
Plaintiff DANIEL HAMILTON filed an appeal from a district court
order dated March 3, 2023, and judgment dated March 6, 2023,
entered in his lawsuit entitled DAN HAMILTON, Individually and on
behalf of all others similarly situated, Plaintiff v. AMAZON.COM
SERVICES LLC, Defendant, Civil Action No. 22-cv-00434-PAB-STV, in
the United States District Court for the District of Colorado,
Denver.
The case was removed from the District Court of Arapahoe County,
Colorado, to the U.S. District Court for District of Colorado on
Feb. 17, 2022.
The Plaintiff's complaint focuses on Amazon's treatment of Holiday
Incentive Pay for purposes of calculating the rate of overtime pay.
Colorado law requires employers to pay overtime at a rate of one
and one-half times the regular rate of pay. The "regular rate" of
pay is the "hourly rate actually paid to employees," which is
determined by dividing the total compensation an employee was paid
in a given week by the number of hours that the employee worked.
The resulting regular rate of pay is multiplied by 1.5 to determine
the amount of additional overtime pay that an employee should
receive for every overtime hour worked.
On March 3, 2022, the Defendant filed a motion to dismiss
Plaintiff's individual and class action complaint.
As previously reported in the Class Action Reporter, Judge Philip
A. Brimmer of the U.S. District Court for the District of Colorado
entered an Order on March 3, 2023, granting Amazon's Motion to
Dismiss Plaintiff's Individual and Class Action Complaint.
Judge Brimmer found that Mr. Hamilton has not identified any
Colorado statute, regulation, or controlling caselaw that requires
Amazon to include HIP in its calculation of his regular rate of
pay, nor is it his position that such a statute, regulation, or
controlling legal precedent exists. HIP is not "holiday pay" within
the meaning of the Orders because HIP is compensation for hours
worked on company holidays. Judge Brimmer further denied as moot
the Plaintiff's motion to certify class action and motion for order
certifying determinative question of Colorado Law to the Colorado
Supreme Court. He dismissed the Plaintiff's first claim with
prejudice. The case was closed.
The appellate case is captioned as Hamilton v. Amazon.com Services,
Case No. 23-1082, in the United States Court of Appeals for the
Tenth Circuit, filed on March 17, 2023.
The briefing schedule in the Appellate Case states that:
-- Docketing statement, transcript order form and entry of
appearance were due on March 31, 2023 for Daniel Hamilton; and
-- Notice of appearance and disclosure statement was due on
March 31, 2023 for Amazon.com Services LLC.[BN]
Plaintiff-Appellant DANIEL HAMILTON, individually and on behalf of
all others similarly situated, is represented by:
Victoria E. Guzman, Esq.
David Hunter Miller, Esq.
WILHITE, ROSE, MCCLURE & SAWAYA
1600 Ogden Street
Denver, CO 80218
Telephone: (303) 839-1650
Defendant-Appellee AMAZON.COM SERVICES LLC, a Delaware limited
liability company, is represented by:
Jennifer Harpole, Esq.
Sarah Katelyn Watt, Esq.
LITTLER MENDELSON
1900 Sixteenth Street, Suite 800
Denver, CO 80202
Telephone: (303) 629-6200
AMC NETWORKS: Discloses Personal Info to Facebook, Vela Suit Says
-----------------------------------------------------------------
RONALD VELA, NICHOLAS NUNEZ, and ANDY GERMUGA, individually, and on
behalf of all others similarly situated, Plaintiffs v. AMC
Networks, Inc. d/b/a/ AMC +, Defendant, Case No. 1:23-cv-02524
(S.D.N.Y., March 24, 2023) is a class action brought by the
Plaintiffs due to the Defendant's alleged violations of the Video
Privacy Protection Act, the Minnesota Statute, and the New York
General Business Law.
According to the complaint, the Defendant knowingly discloses to a
third party, Meta Platforms, Inc., formerly known as Facebook,
Inc., Plaintiffs' "personally identifiable information" about
specific videos they and others similarly situated requested or
obtained from Defendant's website, and retains records containing
PII concerning Plaintiffs and others similarly situated.
Specifically, AMC+ discloses the specific videos its consumers have
requested or obtained to Facebook. AMC+ discloses this information
to Facebook using the Facebook Pixel, a snippet of programming code
AMC+ chose to install on its website that sends information about
its users to Facebook, says the suit.
The Plaintiffs are consumers of AMC+'s video streaming platform and
have requested and obtained videos using their AMC+ subscription.
AMC+ is a media production and distribution company that sells its
content on multiple platforms.[BN]
The Plaintiffs are represented by:
Samuel R. Jackson, Esq.
Hank Bates, Esq.
Courtney Ross, Esq.
CARNEY BATES & PULLIAM, PLLC
519 W. 7th Street
Little Rock, AR 72201
Telephone: (501) 312-8500
Facsimile: (501) 312-8505
E-mail: sjackson@cbplaw.com
hbates@cbplaw.com
cross@cbplaw.com
- and -
Michael W. Sobol, Esq.
LIEFF CABRASER HEIMANN & BERNSTEIN, LLP
275 Battery Street, 29th Floor
San Francisco, CA 94111-3339
Telephone: (415) 956-1000
Facsimile: (415) 956-1008
E-mail: msobol@lchb.com
- and -
Douglas I. Cuthbertson, Esq.
LIEFF CABRASER HEIMANN & BERNSTEIN, LLP
250 Hudson Street, 8th Floor
New York, NY 10013
Telephone: (212) 355-9500
Facsimile: (212) 355-9592
E-mail: dcuthbertson@lchb.com
ARBOR REALTY: Class Cert Bid Filing Extended to May 26
------------------------------------------------------
In the class action lawsuit captioned as CASA DE MARYLAND, INC., et
al. v. ARBOR REALTY TRUST, INC., et al., Case No. 8:21-cv-01778-DKC
(D. Md.), the Hon. Judge Timothy J. Sullivan entered an order
modifying the scheduling order as follows:
Event Old Date New Date
Plaintiffs' Motion for Class Mar. 27, 2023 May 26, 2023
Certification Due
Moving for additional parties Mar. 27, 2023 May 26, 2023
and amendment of pleadings
Plaintiffs' Rule 26(a)(2) Apr. 12, 2023 June 9, 2023
Disclosures
Defendants' Rule 26(a)(2) May 10, 2023 July 7, 2023
Disclosures
Plaintiffs' rebuttal Rule May 24, 2023 July 21, 2023
26(a)(2) disclosures
Arbor Realty is a national direct lender that provides debt capital
for the multifamily loan and commercial real estate industries.
A copy of the Court's order dated March 16, 2023 is available from
PacerMonitor.com at https://bit.ly/3JKA1IQ at no extra charge.[CC]
ASSETCARE LLC: Weiss Sues Over Illegal Debt Collection Letter
-------------------------------------------------------------
SARAH WEISS, individually and on behalf of all others similarly
situated v. ASSETCARE, LLC, CF MEDICAL, LLC, Case No. 509173/2023
(N.Y. Sup., Mar. 27, 2023) alleges that the Defendants' debt
collection efforts attempted and/or directed towards the Plaintiff
violated various provisions of the Fair Debt Collection Practices
Act.
On or before January 16, 2023, the Plaintiff allegedly incurred an
obligation(s) to nonparty original creditor Orange Emergency
Service PC ("Orange"). This alleged debt was incurred as a
financial obligation that was primarily for personal, family, or
household purposes, specifically medical services. Upon information
and belief, Defendant CF contracted with the Defendant AC to
collect the allegedly defaulted debt, says the suit.
On January 16, 2023, the Defendants sent the Plaintiff an initial
collection letter. The Plaintiff disputes the "Total amount of the
debt now: $1,373.00" as set forth in the Letter because proof of
Medicaid insurance was provided at all relevant times from when the
debt was incurred to the present. Stating, or implying, the "Total
amount of the debt now: $1,373.00" is false and/or deceptive. The
Plaintiff was therefore unable to evaluate how much is truly being
alleged as the correct balance, is being misled as to the total
owed, and cannot properly evaluate the demand for payment or how to
address it, asserts the suit.
Accordingly, the Plaintiff cannot pay the alleged debt, trusting
the Defendants, when it appears that the amounts stated in the
Defendants' Letter are incorrect. The Defendants' deceptive,
misleading, and unfair representations with respect to their
collection efforts were material misrepresentations that affected
and frustrated the Plaintiff's ability to intelligently respond to
the Defendants' collection efforts because the Plaintiff could not
adequately respond to the Defendants' demand for payment of this
debt, the suit further alleges.
The Plaintiff is a resident of the State of New York, County of
Kings.
AC is a company that uses the mail, telephone, and facsimile and
regularly engages in business the principal purpose of which is to
attempt to collect debts alleged to be due itself or another.[BN]
The Plaintiff is represented by:
Robert T. Yusko, Esq.
STEIN SAKS, PLLC
One University Plaza, Suite 620
Hackensack, NJ 07601
Telephone: (201) 282-6500
E-mail: ryusko@steinsakslegal.com
ASSURANCE IQ: Filing for Class Cert. Bid Due Jan. 17, 2024
----------------------------------------------------------
In the class action lawsuit captioned as DOUGLAS LEE BLAIR,
individually and on behalf of all others similarly situated, v.
ASSURANCE IQ LLC, Case No. 2:23-cv-00016-LK (W.D. Wash.), the Hon.
Judge Lauren King entered a Rule 16(b) and Rule 23(d)(2) scheduling
order regarding class certification motion:
Deadline to complete discovery on class Dec. 18, 2023
certification:
Deadline for the Plaintiffs to file motion Jan. 17, 2024
for class certification:
Assurance IQ is a wholly owned subsidiary of Prudential Financial.
A copy of the Court's order dated March 15, 2023 is available from
PacerMonitor.com at https://bit.ly/3ZanDY7 at no extra charge.[CC]
AUS INC: Fails to Protect Customers' Info, Fernandez Suit Says
--------------------------------------------------------------
WINSTON FERNANDEZ, on behalf of himself and all others similarly
situated v. AUS, Inc., Case No. 1:23-cv-01713-RMB-SAK (D.N.J., Mar.
27, 2023) alleges that Defendant failed to properly secure and
safeguard personal identifiable information, including without
limitation, the full names and Social Security numbers.
Through an investigation, AUS determined that the unauthorized
individual or individuals gained access to its systems on November
28, 2023. This exposed an estimated 3,400 individuals' PII to
criminals, the suit claims.
On December 23, 2022, an investigation commissioned by AUS
determined that there was unauthorized activity on AUS's network
that resulted in unauthorized third-party access to and acquisition
of confidential information of AUS customers, but that the full
scope and specifics of the information impacted could not be
determined. The Data Breach was determined to be a ransomware
attack, says the suit.
Beginning on or about January 4, 2023, AUS notified many of its
customers, current and former employees, and state Attorneys
General about the widespread data breach. As a direct and proximate
result of AUS's negligence, Plaintiff and Class Members have
suffered and will suffer injury, including:
(i) actual identity theft;
(ii) the loss of the opportunity of how their PII is used;
(iii) the compromise, publication, and/or theft of their PII;
(iv) out-of-pocket expenses associated with the prevention,
detection, and recovery from identity theft, taxfraud,
and/or unauthorized use of their PII; and
(v) lost opportunity costs associated with effort expended
and the loss of productivity addressing and attempting
to
mitigate the actual and future consequences of the Data
Breach.
Plaintiff Winston Fernandez is a resident and citizen of
Pennsylvania residing in Lansford, Pennsylvania in Carbon County.
Mr. Fernandez received AUS's Notice of Data Breach, dated January
4, 2023, shortly after that date.
AUS is a company primarily providing consulting and market research
services to its clients, but also providing other business
management related products and services through its subsidiaries
– SSRS, MSG, RoyaltySource, and AUS Consultants.[BN]
The Plaintiff is represented by:
Victoria Maniatis, Esq.
David K. Lietz, Esq.
MILBERG COLEMAN BRYSON
PHILLIPS GROSSMAN, PLLC
100 Garden City Plaza, Suite 500
Garden City, NY 11530
Telephone: (516) 741-5600
E-mail: vmaniatis@milberg.com
dlietz@milberg.com
- and -
Terence R. Coates, Esq.
MARKOVITS STOCK &
DEMARCO, LLC
3825 Edwards Road, Suite 650
Cincinnati, OH 45209
Telephone: (513) 651-3700
Facsimile: (513) 665-0219
E-mail: tcoates@msdlegal.com
AVIVA CANADA: Loses Bid to Quash Suit for COVID-Related BI Claims
-----------------------------------------------------------------
David Gambrill at canadianunderwriter.ca reports that 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.
In doing so, 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.
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. "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]
BLENDTEC INC: All Fact Discovery Must be Completed by July 14
-------------------------------------------------------------
In the class action lawsuit captioned as Isaac, et al., v.
Blendtec, Inc., Case No. 1:22-cv-11254 (D. Mass.), the Hon. Judge
Richard G. Stearns entered an order granting in part and denying in
part motion for extension of time.
-- As the parties will mediate the case on April 14, 2023, the
court will permit 90 days to complete discovery if no
settlement in principal is reached.
-- All fact discovery will be completed by July 14, 2023. If
there is disagreement as to the delineation of the
Plaintiff class(es), class certification motions will be
filed by Aug. 4, 2023, with any opposition by Aug. 25,
2023.
-- The Plaintiffs will produce expert disclosures under Rule
26(a)(2) by Sept. 15, 2023.
-- The Defendant will produce its counter expert disclosures
by Oct. 13, 2023.
-- Eexpert discovery, if any, must finish by Nov. 6, 2023.
-- Dispositive motions, if appropriate, will be filed by
Nov. 30, 2023, with any opposition by Dec. 21, 2023.
The nature of suit states Contract Product Liability.[CC]
BURGER KING: Administrative Bid to Seal Exhibits OK'd
-----------------------------------------------------
In the class action lawsuit captioned as AZMAN HUSSAIN, v. BURGER
KING CORPORATION, Case No. 4:22-cv-02258-HSG (N.D. Cal.), the Hon.
Judge Haywood S. Gilliam, Jr. entered an order granting the
Defendant's administrative motion to seal.
The Defendant seeks to seal two exhibits related to its motion to
compel arbitration or transfer the case. Because the motion to
compel arbitration is more than tangentially related to the
underlying action, the Court applies the "compelling reasons"
standard.
Because the documents divulge confidential business information
unrelated to the public's understanding of the judicial proceedings
in this case, the Court finds that the Defendant has established
compelling reasons to file the documents under seal.
First, the Court did not rely on the documents that are the subject
of the motion to seal. The Plaintiff voluntarily dismissed this
case before the Court ruled on the motion to compel arbitration.
Thus, these documents are unrelated to the public's understanding
of the judicial proceedings in this case, and the public's interest
in disclosure of these documents is minimal.
Burger King is an American-based multinational chain of hamburger
fast food restaurants.
A copy of the Court's order dated March 15, 2023 is available from
PacerMonitor.com at https://bit.ly/3JzItum at no extra charge.[CC]
CALVERT'S EXPRESS: FLSA Settlement in Heitzman Gets Final Nod
--------------------------------------------------------------
In the class action lawsuit captioned as JEREMY HEITZMAN, and on
behalf of all others similarly situated, v. CALVERT'S EXPRESS AUTO
SERVICE & TIRE, LLC, Case No. 2:22-cv-02001-JAR-ADM (D. Kan.), the
Hon. Judge Julie A. Robinson entered an order granting the parties'
Amended Joint Motion for Approval of Fair Labor Standard Act (FLSA)
Settlement and Dismissal of Lawsuit with Prejudice.
-- The Court grants final collective action certification and
approves the settlement agreement, with the exception of
the service award, which it reduces to $2,000.
-- The case is hereby dismissed with prejudice.
The Plaintiff Jeremy Heitzman, on behalf of himself and others
similarly situated, brings this putative collective action under
the FLSA against the Defendant Calvert's Express Auto Service &
Tire, LLC.
In a February 17, 2023 Memorandum and Order, the Court denied
without prejudice the parties' original motion to approve their
settlement agreement because they failed to submit information
sufficient for the Court to make the requisite findings for final
collective action certification.
A copy of the Court's order dated March 16, 2023 is available from
PacerMonitor.com at https://bit.ly/3lIRgSZ at no extra charge.[CC]
CANADA: Unions Urge Government to Settle Discrimination Class Suit
------------------------------------------------------------------
The Black Class Action Secretariat and several major unions are
renewing calls to settle the lawsuit on behalf of tens of thousands
of Black federal public service workers in the wake of the
government's admission the Canadian Human Rights Commission (CHRC)
discriminated against its Black and racialized employees.
"It is inconceivable that the federal government would spend
millions of dollars fighting Black public service workers in court,
when the government itself has concluded that the very institution
designed to address discrimination, is discriminatory," said
Nicholas Marcus Thompson, executive director of the Black Class
Action Secretariat.
The recent ruling by the Treasury Board of Canada Secretariat
(TBCS) is a scathing admission that the CHRC - the government's own
human rights watchdog mandated to fight racism and discrimination -
is itself plagued by anti-Black racism and systemic
discrimination.
The federal government has been trying to dismiss the Black Class
Action since it was launched in December 2020, arguing that the
workers should pursue other avenues for redress such as filing a
human rights complaint with the CHRC. This recent revelation puts
the CHRC's credibility into question as the appropriate avenue to
achieve justice for Black public sector workers.
"Enough is enough. Our members deserve justice, they deserve
respect, and they deserve to be made whole," said Chris Aylward,
PSAC national president. "It's time for this government to make
things right so we can move forward in creating a more equitable
and diverse federal public service, free of anti-Black racism."
The CHRC's own figures also show the watchdog has been dismissing
racism-based claims at a higher rate than any other human rights
complaint.
In the 2022 federal budget, the government committed $3.7 million
over four years to create a mental health program to address racial
trauma and discrimination experienced by Black workers in the
federal public service. However, the government has been accused of
discriminating against Black workers developing the Black Mental
Health Action Plan. Earlier this year, Treasury Board terminated
the employees it hired to work on the plan after they raised
serious concerns about experiencing anti-Black racism. PSAC has
also filed grievances on behalf of those workers and has requested
transparency from Treasury Board on how the Action Plan is being
developed.
The Black Class Action Secretariat and Canada's unions are calling
for the government to cease its efforts in dismissing the lawsuit,
and instead actively work towards redress for the workers who have
been harmed and end systemic discrimination within its ranks.
"This important legal action shines a light on systemic racism and
discrimination within our workplaces, and it is a vital step
towards fostering a more equitable and inclusive environment for
all employees," said Jennifer Carr, national president of the
Professional Institute of the Public Service of Canada. "It is our
collective responsibility to ensure that every individual is
treated with fairness, respect, and dignity, and we must address
the root causes of inequality in order to build a more just and
compassionate society. We demand the government end its delay
tactics and work with Black Class Action to bring equity and
justice to public service workers."
"The CLC stands in solidarity with Black workers and against all
forms of racial discrimination," said Larry Rousseau, executive
vice-president of the Canadian Labour Congress. "We support Black
workers pursuing equity, equality, and full, fair participation in
the labour market. We strongly urge the federal government to
uphold the human rights of its workers and redress the injustices
faced by Black federal public service employees." [GN]
CIRCLE MEDICAL: Fails to Pay Coordinators' Minimum, OT Wages
------------------------------------------------------------
EDWEENA WASHINGTON and DAPHNE MOLEFE, individually and on behalf of
all others similarly situated v. CIRCLE MEDICAL TECHNOLOGIES, INC.,
Case No. 3:23-cv-01420 (N.D. Cal., Mar. 27, 2023) sues the
Defendant for failure to pay the Plaintiffs and all others
similarly situated for all hours worked and for overtime wages, in
violation of the Fair Labor Standards Act.
The Plaintiffs and all others similarly situated Patient
Coordinators worked for Defendant within the three years preceding
the filing of this action and are individuals who a) signed
independent contractor agreements with Defendant, b) provided
customer support, prescription, billing, and/or patient
advocate/communication/care services in Patient Coordinator roles
for the Defendant by phone, chat, and/or email from remote work
locations; c) worked more than 40 hours in a workweek; and d) were
paid the same hourly rate for all hours of work performed in a
workweek and were not paid overtime compensation for all hours
worked over 40 in a workweek, says the suit.
According to the complaint, the Defendant unlawfully classified the
Plaintiffs and other similarly situated Patient Coordinators as
independent contractors to avoid its obligations to properly pay
for overtime, and to reap the benefits of such illegal
classification, such as reducing its tax liability and avoiding
required workers compensation coverage.
The Plaintiffs bring this action on behalf of a collective of
persons who were not paid the statutorily required rate of
one-and-one-half times their hourly rate for all hours worked in
excess of 4) per workweek and who are entitled to recover: (i)
unpaid and incorrectly paid wages for all hours worked in a
workweek, (ii) unpaid overtime, (iii) liquidated damages, (iv)
interest, and (v) attorneys' fees and costs, pursuant to the FLSA
and such other and further relief as this Court finds necessary and
proper.
Ms. Washington and Ms. Molefe applied for a position the with
Defendant by responding to an internet advertisement. After a
virtual video-based interview, they were hired and advised that
they were required to sign an independent contractor agreement. Ms.
Washington has been working for the Defendant since April 2022.
Ms. Molefe has been working for Defendant since May 2022.
Circle Medical provides telemedicine and in-person medical services
in the United States, including the State of California, and
Canada.[BN]
The Plaintiffs are represented by:
Matthew Righetti, Esq.
RIGHETTI • GLUGOSKI, P.C.
Presidio of San Francisco
220 Halleck Street, Suite 220
San Francisco, CA 94129
Telephone: (415) 983-0900
Facsimile: (415) 397-9005
E-mail: matt@righettilaw.com
- and -
Justin M. Scott, Esq.
SCOTT EMPLOYMENT LAW, P.C.
160 Clairemont Avenue, Suite 610
Decatur, GA 30030
Telephone: (678) 780-4880
Facsimile: (478) 575-2590
E-mail: jscott@scottemploymentlaw.com
- and -
Tracey T. Barbaree, Esq.
Beth A. Moeller, Esq.
MOELLER BARBAREE LLP
1175 Peachtree Street N.E., Suite 1850
Atlanta, GA 30361
Telephone: (404) 748-9122
E-mail: tbarbaree@moellerbarbaree.com
bmoeller@moellerbarbaree.com
CITIGROUP INC: Consolidated Securities Suit Dismissed W/o Prejudice
-------------------------------------------------------------------
In the case, IN RE CITIGROUP SECURITIES LITIGATION, Case No. 20
Civ. 9132 (LAP) (S.D.N.Y.), Judge Loretta A. Preska of the U.S.
District Court for the Southern District of New York:
a. grants the Rule 12(b)(6) motion to dismiss the Consolidated
Amended Class Action Complaint ("CAC") filed by Citigroup
Inc., three Citigroup officers, and 17 Citigroup directors;
and
b. dismisses the CAC without prejudice.
The CAC alleges securities fraud claims under 15 U.S.C. Section
78j(b) and Rule 10b-5 against Citigroup, the Officer Defendants,
and the Director Defendants, as well as control-person claims under
section 20(a) against the Officer Defendants.
Citigroup is a Delaware corporation that provides financial
services and products to consumers, corporations, governments, and
institutions around the world, with over $2.2 trillion in total
assets and approximately 200 million customer accounts.
Michael Corbat was CEO and Director of Citigroup from 2012 through
Feb. 26, 2021. He also served as a Director of Citibank from June
2020 through Feb. 26, 2021. John Gerspach was CFO of Citigroup from
July 2009 through Feb. 22, 2019. The Plaintiffs allege that the
Officer Defendants were provided advance or contemporaneous copies
of Citigroup's reports to the SEC, press releases, and
presentations they alleged to be false and misleading, yet failed
to prevent their issuance or to cause them to be corrected.
The Plaintiffs name seventeen current and former directors of
Citigroup, in addition to Gerspach. Ellen Costello has served since
2016 as a Director of Citigroup and Citibank and as a member of
Citigroup's Audit Committee. Grace Dailey has served since 2019 as
a Director of Citigroup and a member of Citigroup's Audit and Risk
Management Committees. Barbara Desoer, a current Director and
former CEO of Citibank, has served since 2019 as a Director of
Citigroup and a member of Citigroup's Risk Management Committee.
John Dugan has since 2017 served as a Director of Citigroup and
since 2019 as Chairman of the Citigroup Board. Duncan Hennes has
since 2013 served as a Director of both Citigroup and Citibank.
Peter Henry has served since 2015 as a Director of Citigroup and as
a member of Citigroup's Audit Committee. Franz Humer served as a
Director of Citigroup from 2012 to April 2019, a member of
Citigroup's Risk Management Committee from 2015 through 2018, and a
Director of Citibank from 2012 to 2013. S. Leslie Ireland has
served since 2017 as a Director of Citigroup, since 2020 as a
member of Citigroup's Risk Management Committee, and since 2017 as
a Director of Citibank. Lew Jacobs has served since 2018 as a
Director of Citigroup and member of Citigroup's Audit Committee and
since 2020 as a member of Citigroup's Risk Management Committee.
Renee James has served since 2016 as a Director of Citigroup and
member of Citigroup's Risk Management Committee.
Eugene McQuade, a former director, Vice Chairman, and CEO of
Citibank, served from 2015 to April 2020 as a Director of
Citigroup, from 2015 through 2019 as a member of Citigroup's Risk
Management Committee, and in 2019 as a member of Citigroup's Audit
Committee. Michael O'Neill served from 2009 to January 2019 as a
Director of Citigroup, from 2012 to January 2019 as the Chairman of
the Citigroup Board, from 2016 to 2018 as a member of Citigroup's
Risk Management Committee, and in 2015 as a member of Citigroup's
Audit Committee. Anthony Santomero served from 2009 to April 2019
as a Director of Citigroup and from 2015 through 2018 as Chair of
Citigroup's Risk Management Committee and a member of Citigroup's
Audit Committee.
James Turley has served since 2013 as a Director of Citigroup and
since 2015 as Chair of Citigroup's Audit Committee and member of
Citigroup's Risk Management Committee. Deborah Wright has served
since 2017 as a Director of Citigroup and as a member of
Citigroup's Audit Committee. Alexander Wynaendts has served since
2019 as a Director of Citigroup and as a member of Citigroup's Risk
Management Committee. Ernesto Zedillo Ponce de Leon has served
since 2010 as a Director of Citigroup and since 2015 as a member of
Citigroup's Risk Management Committee.
The Class Period runs from Jan. 15, 2016 to Oct. 12, 2020. The CAC
catalogues statements made in various contexts over approximately
four years and asserts that these statements constitute a broad
narrative of appropriate investment in and compliance with risk
management requirements. They assert that these statements were
misleading because Citigroup was aware that its regulators held a
contrary view and that, instead of investing adequately in risk
management, Citigroup made the deliberate choice to cut costs in
hopes of improving its efficiency ratio (expenses/revenue) and
thereby boosting its stock price.
Although the Plaintiffs identify approximately 60 statements as
actionable, the Plaintiffs' contentions are, at bottom, that two
October 2020 consent orders between Citibank and its primary
regulators -- the Office of the Comptroller of the Currency ("OCC")
and the Federal Reserve ("Fed") -- render dozens of prior
statements about Citigroup's risk management false or misleading.
The original putative class action complaint was filed on Oct. 30,
2020, by The City of Sunrise Firefighters' Pension Fund against
Citigroup and the Officer Defendants. Two separate putative class
actions subsequently were filed by two other institutional
investors -- City of Sterling Heights General Employees' Retirement
System v. Citigroup, et al., No. 20-cv-9573; and Lim v. Citigroup,
et al., No. 20-cv-10360.
After certain parties moved to consolidate and to be appointed lead
plaintiff, the plaintiff in City of Sterling Heights voluntarily
dismissed its claims without prejudice, maintaining its right to
participate in the case as an absent class member. On Feb. 4, 2021,
the Court consolidated the remaining actions -- City of Sunrise and
Lim -- styled as In re Citigroup Securities Litigation, and the
Court appointed Public Sector Pension Investment Board as the Lead
Plaintiff.
A consolidated amended complaint was filed on April 20, 2021. There
are three classes of Defendants in the CAC: (i) the corporate
Defendant Citigroup; (ii) the Officer Defendants Michael L. Corbat,
John C. Gerspach, and Michael A. L. Mason; and (iii) the Director
Defendants.
Before the Court is the Rule 12(b)(6) motion to dismiss the CAC
filed by Citigroup, the Officer Defendants, and the Director
Defendants. Lead Plaintiff Public Sector Pension ("PSP" or "Lead
Plaintiff"), and Named Plaintiff Anchorage Police & Fire Retirement
System -- on behalf of a putative class of purchasers of
Citigroup's securities -- oppose the motion.
The Complaint brings two securities fraud claims: Count I alleges a
violation of Rule 10b-5 against Citigroup and the Individual
Defendants, and Count II alleges a Section 20(a) violation against
the Officer Defendants as control persons.
The Defendants contend that the CAC should be dismissed because it:
(i) fails to identify any actionable misstatements or omissions and
(ii) does not plead a strong inference of scienter.
As to their first argument, the Defendants contend that all of the
alleged misstatements and omissions fall into one of two buckets
that make them non-actionable: (i) statements that are immaterial
as a matter of law and (ii) statements that were not false when
spoken and were not rendered false by the 2020 Consent Orders.
Judge Preska agrees. Among other things, she concludes that Alleged
Misstatements 1-7, 10-14, 19-22, 25-27, 29, 31-32, and 34 are not
actionable because the Plaintiffs have not adequately alleged that
the statements were false at the time they were made or identified
any specific information available to the Defendants at the time
the statements were made that should have been disclosed
contemporaneously but was not. She also finds that the Alleged
Misstatements 9, 15-18, 23-24, 28, 30, and 33 are not actionable
because the October 2020 Orders do not cite to any ongoing
violations related to the particular issues identified in the
earlier settlements that render these statements false or
misleading.
In addition, Judge Preska says alleged Misstatement 8 is not
misleading or untrue, and it is not actionable. Lastly, the
Plaintiff offers nothing beyond conjecture to suggest that the
Individual Defendants knew -- at the time they signed their
certifications -- of any misrepresentations in Citigroup's
financial statements or deficiencies in the Company's internal
controls.
As to the Defendants' second argument, they move to dismiss the
Plaintiff's Section 10(b) and Rule 10b-5 claims because the
Plaintiffs failed to plead scienter. Recall that the Plaintiffs may
show scienter in one of two ways: (i) evidence that Individual
Defendants had "a motive and opportunity to commit the fraud" or
(ii) "strong circumstantial evidence of conscious misbehavior or
recklessness." Blanford, 794 F.3d at 306 (quotation marks
omitted).
Judge Preska holds that the Plaintiffs' allegations fall short
under either theory, especially since, when evaluating scienter,
the Court must consider plausible opposing inferences. The
Plaintiffs' allegations regarding scienter do not support a
"powerful or cogent" inference that Individual Defendants harbored
thoughts of fraud. As a result, there is also no intent that can be
imputed to the Company. Consequently, the Plaintiff's Section 10(b)
and Rule 10b-5 claims must also be dismissed based on lack of
scienter.
The Plaintiffs assert a control person claim against the Individual
Defendants under Exchange Act Section 20(a). Because the Plaintiffs
have failed to establish a primary violation of the securities
laws, their section 20 claim necessarily collapses and is
dismissed.
Lastly, in a single sentence at the end of their opposition brief,
the Plaintiffs request leave to amend if the Court dismisses the
Complaint. The Plaintiffs have not proposed any specific
amendments, and Judge Preska has serious doubts that they can add
any allegations that would shore up their CAC. As a result, she
does not grant the Plaintiffs' request, but they may move for leave
to amend to explain further how any amendment would cure the
defects identified.
For the foregoing reasons, Judge Preska grants the Defendants'
motion to dismiss. The Plaintiffs may move for leave to amend
within 30 days of the Order. The Clerk of the Court is directed to
close the open motion.
A full-text copy of the Court's March 24, 2023 Opinion & Order is
available at https://tinyurl.com/5bv422dj from Leagle.com.
CLOSET WORLD: Faces Nabiyev Class Suit Over False Limited-Time Sale
-------------------------------------------------------------------
Sarkhan Nabiyev, individually and on behalf of all others similarly
situated v. Closet World, Inc. and Home Organizers Inc., Case No.
2:23-cv-02218-DSF-AS (C.D. Cal., Mar. 24, 2023) alleges that the
Defendants prominently advertise purported limited-time sales,
through paper advertisements mailed to consumers, and online, in
violation of the California's False Advertising Law and the
California's Consumer Legal Remedies Act.
According to the complaint, the Defendants always offer sitewide
discounts, as well as discounts on certain items, so they never
sell any of their products at the purported regular price. The
sales are not limited in time, but instead immediately reset and
continue to be available, the suit contends.
Mr. Nabiyev bought custom Products from the Defendants. Like the
Defendants' other customers, when Mr. Nabiyev bought the Products,
the Defendants advertised that a sale was going on, and that the
Products were heavily discounted. Mr. Nabiyev believed that the
Products that he purchased usually retailed for the quoted and
listed regular prices, and that the sale would end soon. If he had
known that the Products he purchased were not on sale, he would not
have bought them, the Plaintiff claims.
But none of that was true. The Defendants' regular prices were not
the prevailing regular prices. The sale Defendants advertised was
not really limited in time. Had the Defendants been truthful, the
Plaintiff and other consumers would not have purchased the Products
or would have paid less for them, the Plaintiff adds.
Mr. Nabiyev is domiciled in Los Angeles, California.
Closet World makes, sells, and markets home organizing products
including, custom closets, garages, storage solutions, and home
offices.[BN]
The Plaintiff is represented by:
Christin Cho, Esq.
Simon Franzini, Esq.
DOVEL & LUNER, LLP
201 Santa Monica Blvd., Suite 600
Santa Monica, CA 90401
Telephone: (310) 656-7066
Facsimile: (310) 656-7069
E-mail: christin@dovel.com
simon@dovel.com
COLUMBUS REGIONAL: Goodman, et al., Seek Class Certification
------------------------------------------------------------
In the class action lawsuit captioned as BARBARA GOODMAN, LISA
COUNTRYMAN, SHARON CLARKE, CHERYL GALLOPS, SHERRI STUCKEY, and
LAUREN SPIVEY, Individually and on behalf of all others similarly
situated, v. COLUMBUS REGIONAL HEALTHCARE SYSTEM, INC., Case No.
4:21-cv-00015-CDL (M.D. Ga.), the Plaintiffs ask the Court to enter
an order granting their motion for class certification.
Columbus Regional Health is a nationally recognized health system
serving a 10-county region in southeastern Indiana.
A copy of the the Plaintiffs' motion dated March 15, 2023 is
available from PacerMonitor.com at https://bit.ly/3nke9g0 at no
extra charge.[CC]
The Plaintiffs are represented by:
John Williamson, Esq.
WILLIAMSON AND YORK, LLC
2727 Paces Ferry Road, SE
Building One, Suite 750
Atlanta, GA 30339
Telephone: (678) 358-9317
E-mail: jwilliamson@williamsonyork.com
jhw@williamsonyork.com
- and -
James H. White, IV, Esq.
JAMES WHITE FIRM, LLC
2100 Morris Avenue
Birmingham, Alabama 35203
Telephone: (205) 383-1812
E-mail: james@whitefirmllc.com
CORECIVIC OF TENNESSEE: Fails to Pay Nurses' OT Wages Under FLSA
----------------------------------------------------------------
TIMISHA WERITO, Individually and for Others Similarly Situated v.
CORECIVIC OF TENNESSEE, LLC, Case No. 1:23-cv-00261-GJF-JMR (Court,
Mar. 27, 2023) seeks to recover unpaid overtime and other damages
pursuant to the Fair Labor Standards Act.
According to the complaint, Werito regularly worked more than 40
hours in a week like the Putative Class Members but CoreCivic
allegedly did not pay for all the hours they worked. Instead,
CoreCivic automatically deducted 30 minutes a day from these
employees' work time for so-called meal breaks. CoreCivic requires
Werito and the Putative Class Members to remain on-duty throughout
their shifts and continuously subjects them to interruptions during
their unpaid "meal breaks," says the suit.
CoreCivic's auto-deduction policy violates theFLSA and the New
Mexico Minimum Wage Act (NMMWA) by depriving Werito and the
Putative Class Members of overtime pay for all overtime hours
worked. Further, CoreCivic uniformly requires Werito and the New
Mexico Class Members to complete a mandatory security screening
before clocking in for their shifts. CoreCivic's mandatory
pre-shift security screening practice violates the NMMWA by
depriving Werito and the New Mexico Class Members of overtime pay
for all overtime hours worked, the suit asserts.
Werito worked for CoreCivic as a Licensed Practical Nurse (LPN) at
the Cibola County Correction Center in Milan, New Mexico from
February 2020 until February 2021.
CoreCivic is a provider of high-quality corrections and detention
management with operations across the United States, including in
New Mexico.[BN]
The Plaintiff is represented by:
Michael A. Josephson, Esq.
Andrew W. Dunlap, Esq.
JOSEPHSON DUNLAP LLP
11 Greenway Plaza, Suite 3050
Houston, Texas 77046
Telephone: (713) 352-1100
Facsimile: (713) 352-3300
E-mail: mjosephson@mybackwages.com
adunlap@mybackwages.com
- and -
Richard J. (Rex) Burch, Esq.
BRUCKNER BURCH PLLC
11 Greenway Plaza, Suite 3025
Houston, Texas 77046
Telephone: (713) 877-8788
Facsimile: (713) 877-8065
E-mail: rburch@brucknerburch.com
CREDIT SUISSE: Ct. Certifies Securities Act Class in Set Capital
----------------------------------------------------------------
In the class action lawsuit captioned as SET CAPITAL LLC, et al.,
Individually and on Behalf of All Others Similarly Situated, v.
CREDIT SUISSE GROUP AG, CREDIT SUISSE AG, CREDIT SUISSE
INTERNATIONAL, TIDJANE THIAM, DAVID R. MATHERS, JANUS HENDERSON
GROUP PLC, JANUS INDEX & CALCULATION SERVICES LLC, and JANUS
DISTRIBUTORS LLC d/b/a JANUS HENDERSON DISTRIBUTORS, Case No.
1:18-cv-02268-AT-SN (S.D.N.Y.), the Hon. Judge Analisa Torres
entered an order:granting in part and denying in part the parties'
motions as follows
1. The Defendants' motion to exclude Mitts' testimony is
denied.
2. The Plaintiffs' motion to certify the Securities Act Class
is granted.
3. The Plaintiffs' motion to appoint class counsel of the
Securities Act Class is granted.
4. The Plaintiffs' motion to certify the Misrepresentation
Class is denied, without prejudice to refiling by
alternative class representatives and counsel by May
15, 2023.
5. The Plaintiffs' motion to certify the Manipulation Class
is denied, without prejudice to refiling by alternative
class representatives and counsel by May 15, 2023.
Therefore, the Court finds that Plaintiffs have not met the
typicality and adequacy requirements by a preponderance of evidence
for the Exchange Act Classes because Plaintiffs, who are each a
member of both Exchange Act Classes, do not have the same
"incentive to prove all the elements of the cause of action" that
members of only one of the classes would have.
Further, Plaintiffs and their counsel cannot adequately represent
both the Misrepresentation and Manipulation Classes because the
conflict between the classes is fundamental.
The case arises out of the collapse of XIV Notes, which were a
complex investment vehicle that provided a mechanism by which
investors could profit from low volatility in the stock market.
In purchasing an exchange traded note ("ETN"), like XIV Notes,
investors agree to pay money to the institution sponsoring the ETN
in return for a payment when the note matures, the amount of which
is determined by the value of a market index.
In this case, the value of XIV Notes was derived from the S&P 500
VIX Short-Term Futures Index (the "VIX Futures Index"), an index
that aggregates the price of VIX futures contracts, which in turn
track a measure of market volatility.
After several plaintiffs sued Defendants, the Honorable Sarah
Netburn consolidated the actions and appointed Plaintiffs as lead
plaintiffs. On August 20, 2018, the Plaintiffs filed an amended
consolidated complaint against Defendants.
On November 2, 2018, the Defendants moved to dismiss the complaint.
Upon a Report and Recommendation by Judge Netburn, the Court
dismissed Plaintiffs' claims in their entirety.
On April 27, 2021, the Second Circuit affirmed in part, and vacated
and remanded in part, the Court's order of dismissal. On July 1,
2022, on remand, Plaintiffs moved to certify three classes:
"all persons and entities that purchased or acquired [XIV
Notes] between January 29, 2018 and February 5, 2018,
inclusive (the "Misrepresentation Class Period"), and who
were damaged thereby (the "10b-5(b) Class" [or the
"Misrepresentation Class"];"
all persons and entities that sold or redeemed [XIV Notes] on
or after February 5, 2018 (the "Manipulation Class Period")
and who were damaged thereby (the "10b-5(a) and (c) Class"
[or the "Manipulation Class"] and, together with the 10b-5(b)
Class, the "Exchange Act Classes");" and
"all persons and entities that purchased or acquired [XIV Notes]
pursuant to or traceable to [the] Offering Documents, and were
damaged
thereby (the "Securities Act Class").
Credit Suisse is a global investment bank and financial services
firm.
A copy of the Court's order dated March 16, 2023 is available from
PacerMonitor.com at https://bit.ly/3G1IrdU at no extra charge.[CC]
CVS HEALTH: Wins Administrative Bid to Seal Confidential Documents
------------------------------------------------------------------
In the class action lawsuit captioned as RYAN HYAMS, et al., v. CVS
HEALTH CORPORATION, et al., Case No. 4:18-cv-06278-HSG (N.D. Cal.),
the Hon. Judge Haywood S. Gilliam, Jr. entered an order granting
the defendants' administrative motion to seal.
Documents filed under seal as to which the administrative motions
are granted will remain under seal.
The Court finds that the Defendants have established compelling
reasons to grant the motion to file under seal.
The Court agrees that public disclosure of these confidential
business materials could result in improper use by business
competitors. These documents include compensation information,
business analysis, market research, and strategic planning. Some of
the documents contain detailed descriptions of CVS's internal
software, as well as research and data on customers and employees.
CVS Health is an American healthcare company that owns CVS
Pharmacy, a retail pharmacy chain; CVS Caremark, a pharmacy
benefits manager; and Aetna, a health insurance provider.
A copy of the Court's order dated March 15, 2023 is available from
PacerMonitor.com at https://bit.ly/3JN51YS at no extra charge.[CC]
DETROIT, MI: Howard Suit Seeks to Certify Homeowners Class
----------------------------------------------------------
In the class action lawsuit captioned as DEBORAH HOWARD, et. al.,
v. THE CITY OF DETROIT, et al., Case No. 2:20-cv-10382-NGE-DRG
(E.D. Mich.), the Plaintiffs ask the Court to enter an order
certifying the Detroit Homeowners Class and its constituent
subclasses under Rule 23(b)(3), or in the alternative, under Rule
23(b)(1)(A) or (b)(2).
Because standing exists, and because the Court can award the final
injunctive relief and corresponding declaratory relief the
Plaintiffs seek on a class-wide basis, the class satisfies the
requirements for injunctive or declaratory relief under any of the
sub-categories of Rule 23(b), the Plaintiffs contend.
The Court should certify this case as a class action because the
Defendants' liability flows from a single course of conduct that
affected all Detroit homeowners in fundamentally the same way. The
Detroit the Defendants violated the Plaintiffs' due
process rights -- and those of every Detroit homeowner -- by
sending late and misleading notices of property tax assessment in
2017. Each putative class member's alleged injury flows from the
same basic conduct, and each proposed subclass alleges the same
type of harm, the Plaintiff adds.
On February 14, 2017, the Detroit the Defendants mailed 263,516
property tax assessment notices to Detroit property owners,
including to virtually all residential homeowners.
Although Detroit the Defendants violated the Plaintiffs' -- and
every Detroit homeowners' -- due process rights, the harm stemming
from the inability to appeal property tax assessments was
especially great for those Detroiters whose homes
were over-assessed in 2017.
The Proposed Class and Subclasses:
-- The Plaintiffs William and Billie Hickey represent the
Detroit Homeowners Class whose due process rights were
violated by Detroit's late and misleading property tax
notices in 2017.
-- The Plaintiff Jeffery Stevenson represents the
Detroit Homeowners Class, as well those the Plaintiffs
whose homes were over-assessed (the "Overpaying Subclass"),
fell delinquent (the "Delinquent Subclass"), or were
subject to foreclosure (the "Foreclosure Subclass") after
having been substantively denied the opportunity to appeal
their 2017 assessments.
-- The Plaintiff Jeffery Stevenson's claims are typical of
those of the following three subclasses:
1) Overpaying Subclass
Homeowners whose properties Detroit unlawfully over-
assessed in 2017, resulting in overpayment of property
taxes. Mr. Stevenson alleges his home was over-assessed
in 2017.
2) Delinquent Subclass
Homeowners who were over-assessed and were sent
deficient and untimely notice by the Detroit the
Defendants in 2017.
Mr. Stevenson was considered delinquent on his property
taxes for 2017, resulting in accumulation of delinquency
fines and fees.
3) Foreclosure Subclass
Homeowners whose delinquent status made them eligible
for foreclosure. Mr. Stevenson fell behind on 2017
property tax payments and his home was subsequently
subject to foreclosure by Wayne County.
A copy of the the Plaintiffs' motion dated March 15, 2023 is
available from PacerMonitor.com at https://bit.ly/409Fdgd at no
extra charge.[CC]
The Plaintiffs are represented by:
Rami N. Fakhouri, Esq.
Betsy Farrington, Esq.
Samuel E. Schoenburg, Esq.
Caleb A. Kennedy, Esq.
GOLDMAN ISMAIL TOMASELLI
BRENNAN & BAUM LLP
200 South Wacker Drive, 22nd Floor
Chicago, IL 60606
Telephone: (312) 681-6000
E-mail: rfakhouri@goldmanismail.com
bfarrington@goldmanismail.com
sschoenburg@goldmanismail.com
ckennedy@goldmanismail.com
- and -
Cynthia Heenan, Esq.
CONSTITUTIONAL LITIGATION ASSOCIATES
220 Bagley, Ste. 740
Detroit, MI 48226
Telephone: (313) 961-2255
E-mail: Heenan@ConLitPC.com
The Defendant is represented by:
James D. Noseda, Esq.
Charles N. Raimi, Esq.
CITY OF DETROIT LAW DEPARTMENT
Two Woodward Avenue
Detroit, MI 48226
Telephone: (313) 237-3057 / 5037
E-mail: nosej@detroitmi.gov
raimic@detroitmi.gov
- and -
Nasseem S. Ramin, Esq.
Theodore W. Seitz, Esq.
DYKEMA GOSSETT PLLC
400 Renaissance Center, 37th Floor
Detroit, MI 48243
Telephone: (313) 568-6800
E-mail: nramin@dykema.com
tseitz@dykema.com
- and -
Wesley M. Margeson, Esq.
Matthew B. Hodges, Esq.
REVENUE AND TAX DIVISION
Lansing, MI 48909
Telephone: (517) 335-7584
E-mail: margesonw@michigan.gov
hodgesm@michigan.gov
DIGNITY HEALTH: Hooks Must File Class Certification Bid by May 5
----------------------------------------------------------------
In the class action lawsuit captioned as TRAVONNE HOOKS,
Individually and on behalf of all others similarly situated, v.
DIGNITY HEALTH, Case No. 2:22-cv-07699-DSF-PD (C.D. Cal.), the Hon.
Judge Dale S. Fischer entered an order granting joint stipulation
to continue briefing schedule on plaintiff's motion for class
certification as follows:
1. The Plaintiff shall file his motion for class
certification by May 5, 2023.
2. The Defendant shall file its opposition to the Plaintiff's
motion for class certification by June 5, 2023.
3. The Plaintiff shall file any reply in support of the
motion for class certification by June 30, 2023.
4. The hearing on Plaintiff's motion for class certification
shall take place on July 31, 2023.
Dignity Health was a California-based not-for-profit public-benefit
corporation that operates hospitals and ancillary care facilities
in three states. Dignity Health was the fifth-largest hospital
system in the nation and the largest not-for-profit hospital
provider in California.
A copy of the Court's order dated March 16, 2023 is available from
PacerMonitor.com at https://bit.ly/3ZpCKwU at no extra charge.[CC]
DISH NETWORK: Bids for Lead Plaintiff Appointment Due May 22
------------------------------------------------------------
Bernstein Liebhard LLP, a nationally acclaimed investor rights law
firm, reminds investors of the deadline to file a lead plaintiff
motion in a securities class action lawsuit that has been filed on
behalf of investors who purchased or acquired the securities of
DISH Network Corporation ("Dish" or the "Company") (NASDAQ: DISH)
between February 22, 2021 and February 27, 2023, inclusive (the
"Class Period"). The lawsuit was filed in the United States
District Court for the District of Colorado and alleges violations
of the Securities Exchange Act of 1934.
Dish, together with its subsidiaries, provides pay-TV services in
the United States. The Company operates in two segments, Pay-TV and
Wireless. Dish offers video services under the DISH TV brand; and
programming packages that include programming through national
broadcast networks, local broadcast networks, and national and
regional cable networks, as well as regional and specialty sports
channels, premium movie channels, and Latino and international
programming packages.
Plaintiff alleges that Defendants made materially false and
misleading statements throughout the Class Period. Specifically,
Plaintiff alleges that Defendants failed to disclose that: (i) the
Company overstated its operational efficiency and maintained a
deficient cybersecurity and information technology infrastructure;
(ii) as a result of the foregoing, the Company was unable to
properly secure customer data, leaving it vulnerable to access by
malicious third parties; and (iii) 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.
On February 24, 2023, the Company announced that a "network outage"
caused the Company's websites and apps to cease functioning,
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.
Then, on February 28, 2023, Dish confirmed that it had "determined
that the outage was due to a cyber-security 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.
On this news, Dish's stock price fell $0.79 per share, or 6.48%, to
close at $11.41 per share on February 28, 2023.
If you wish to serve as lead plaintiff, you must move the Court no
later than May 22, 2023. A lead plaintiff is a representative party
acting on behalf of other class members in directing the
litigation. Your ability to share in any recovery doesn't require
that you serve as lead plaintiff. If you choose to take no action,
you may remain an absent class member.
If you purchased or acquired Dish securities, and/or would like to
discuss your legal rights and options please visit DISH Network
Corporation Shareholder Class Action Lawsuit or contact Peter
Allocco at (212) 951-2030 or pallocco@bernlieb.com.
Since 1993, Bernstein Liebhard LLP has recovered over $3.5 billion
for its clients. In addition to representing individual investors,
the Firm has been retained by some of the largest public and
private pension funds in the country to monitor their assets and
pursue litigation on their behalf. As a result of its success
litigating hundreds of lawsuits and class actions, the Firm has
been named to The National Law Journal's "Plaintiffs' Hot List"
thirteen times and listed in The Legal 500 for ten consecutive
years.
ATTORNEY ADVERTISING. (C) 2023 Bernstein Liebhard LLP. The law firm
responsible for this advertisement is Bernstein Liebhard LLP, 10
East 40th Street, New York, New York 10016, (212) 779-1414. Prior
results do not guarantee or predict a similar outcome with respect
to any future matter. [GN]
EASSIT INC: Court Dismisses Lewis Suit without Prejudice
--------------------------------------------------------
In the class action lawsuit captioned as CHRISTINA LEWIS, an
individual, individually and on behalf of all others similarly
situated, v. EASSIT, INC. D/B/A EASSIST DENTAL SOLUTIONS, a Wyoming
corporation, Case No. 2:22-cv-00121-HCN (D. Utah), the Hon. Judge
Howard C. Nielson, Jr. entered an order granting motion to dismiss
case without prejudice.
Specifically, the parties agreed to mediation before either party
commences litigation -- not to "mediation in the shadow of a
pending lawsuit." The court "cannot countenance such a clear
disregard for a party's contractual obligations." The court will
accordingly enforce the parties' agreement and dismiss this action
without prejudice rather than granting Ms. Lewis's request for a
stay.
The Plaintiff Christina Lewis, a former remote dental billing
specialist for the Defendant eAssist Dental Solutions, brings this
action on behalf of herself and a putative class of similarly
situated individuals, alleging violations of the Fair Labor
Standards Act.
Eassist seeks dismissal on the ground that Ms. Lewis failed to
engage in mediation before bringing this action as required by the
eAssist Independent Contractor Service Agreement, to which Ms.
Lewis agreed before beginning her work with eAssist.
eAssist is a provider of electronic customer relationship
management (eCRM) solutions for e-commerce and Global 2000
companies.
A copy of the Court's order dated March 15, 2023 is available from
PacerMonitor.com at https://bit.ly/3LLGHsE at no extra charge.[CC]
EPIQ CORPORATE: Seeks July 6 Extension to File Class Cert. Response
-------------------------------------------------------------------
In the class action lawsuit captioned as JOHN DOE No. 1 and JOHN
DOE No. 2, behalf of themselves and all others similarly situated,
v. EPIQ CORPORATE RESTRUCTURING, LLC, Case No. 3:23-cv-00154-OAW
(D. Conn.), the Defendant asks the Court to enter an order granting
emergency motion and extend its time to respond to plaintiffs'
Motion to Certify Class until July 6, 2023, which is 90 days after
the parties are due to file their Rule 26(f) report.
The extension is necessary to permit Epiq time to conduct class
discovery (after discovery has begun) and to prepare an appropriate
response to the Class Motion. Plaintiffs do not object to providing
Epiq some extension of the filing deadline, but plaintiffs object
to the duration of the extension Epiq is requesting in this motion.
Epiq has not made any previous request for an extension of this
deadline. Because only one week remains until the deadline (due to
the passage of time while the parties were conferring about the
briefing schedule and other related issues), Epiq respectfully
requests that the Court grant the requested extension on an
emergency basis.
The Plaintiffs filed their complaint on February 8, 2023. Epiq's
deadline to answer, move, or otherwise respond to the complaint is
April 3, 2023.
The Court set April 7, 2023 as the deadline for the parties to file
their joint discovery planning and case management report under
Rule 26(f) of the Federal Rules of Civil Procedure. The subjects to
be addressed in that joint report include the scope and sequencing
of discovery and the proposed schedule for any motion by plaintiffs
for class certification.
A copy of the Defendant's motion dated March 16, 2023 is available
from PacerMonitor.com at https://bit.ly/3nslhXw at no extra
charge.[CC]
The Defendant is represented by:
John J. Clarke, Jr., Esq.
Scott Louis Weber, Esq.
Rachael C. Kessler, Esq.
DLA PIPER LLP (US)
1251 Avenue of the Americas
New York, NY 10020
Telephone: (212) 335-4500
Facsimile: (212) 335-4501
E-mail: john.clarke@us.dlapiper.com
scott.weber@us.dlapiper.com
rachael.kessler@us.dlapiper.com
EXPERIAN INFO: Bid to Compel Arbitration OK'd in Alvarez Suit
-------------------------------------------------------------
In the class action lawsuit captioned as MANUEL ALVAREZ, SR., on
behalf of himself and others similarly situated, v. EXPERIAN
INFORMATION SOLUTIONS, INC., Case No. 2:19-cv-03343-JS-JMW
(E.D.N.Y.), the Hon. Judge James M. Wicks entered an order that
Experian's motion to compel arbitration is granted, and the
Plaintiff's motion to strike is denied.
As a result of granting Experian's motion to compel arbitration,
the action is stayed pending arbitration. The Court does not find
that Experian waived its right to arbitration.
The Plaintiff Manuel Alvarez commenced this consumer class action
alleging that Experian Information Solutions, Inc., violated the
Fair Credit Reporting Act, ("FCRA"), New York Fair Credit Reporting
Act ("NYFCRA"), and NY Gen Bus. Law section 380 et seq., by
improperly associating customers with terrorists, narcotics
traffickers, money launderers, arms dealers, and other like-minded
criminals.
The Plaintiff commenced this 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").
The Plaintiff 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.
Experian Information offers credit information, analytical tools,
and marketing services.
A copy of the Court's order dated March 15, 2023 is available from
PacerMonitor.com at https://bit.ly/3TIfxFk at no extra charge.[CC]
The Plaintiff is represented by:
Daniel Zemel, Esq.
Elizabeth Easley Apostola, Esq.
ZEMEL LAW LLC
660 Broadway
Paterson, NJ 07514
Telephone: (862) 227-3106
- and -
James A. Francis, Esq.
John Soumilas, Esq.
Lauren Kw Brennan, Esq.
Edward Skipton, Esq.
Jordan M. Sartell, Esq.
FRANCIS MAILMAN SOUMILAS P.C.
1600 Market Street, Suite 2510
Philadelphia, PA 19103
Telephone: (215) 735-8600
The Defendant is represented by:
Kerianne Tobitsch, Esq.
Kerry Cordill Fowler, Esq.
JONES DAY
250 Vesey Street
New York, NY 10281
Telephone: (212) 326-8321
FAIRFIELD HEALTHCARE: Aboah Bid for Rule 23 Class Status Tossed
----------------------------------------------------------------
In the class action lawsuit captioned as GWENDOLINE ABOAH and TANIA
STEWART, v. FAIRFIELD HEALTHCARE SERVICES, INC. d/b/a BRIGHTSTAR
CARE OF FAIRFIELD & SOUTHBURY and PETER R. MOORE, Case No.
3:20-cv-00763-SVN (D. Conn.), the Hon. Judge Sarala V. Nagala
entered an order:
-- granting in part and denying in part the Plaintiffs' motion
for conditional certification of an Fair Labor Standards
Act (FLSA) collective;
-- denying the Plaintiffs' motion for Rule 23 Class
Certification.
The Plaintiffs have failed to provide evidence demonstrating that
other HHAs were required to work seven and a half consecutive hours
without taking meal breaks of 30 minutes or longer.
The Court is unpersuaded by Plaintiffs' citations to deposition
testimony and BrightStar's Employee Handbook to support the
proposition that BrightStar's "Meal and Rest Break Policy" does not
apply to HHAs. Plaintiffs essentially argue that the existence of a
meal break policy that applies to some employees other than HHAs
demonstrates that Defendants do not provide any such meal breaks to
HHAs. But the mere fact that this specific policy does not apply to
HHAs does not mean that HHAs are not provided with meal breaks at
all.
Rather, it merely speaks to how Defendants provided meal and break
periods to other employees who are not at issue in this
action. Accordingly, this evidence is insufficient to show that any
HHAs other than Plaintiffs were, indeed, required to work seven and
a half consecutive hours without being permitted to take break
periods.
The Plaintiffs Gwendoline Aboah and Tania Stewart, who were
employed as live-in home health aides by Defendant Fairfield
Healthcare, have brought this action under the FLSA, and the
Connecticut Minimum Wage Act ("CMWA").
The Plaintiffs allege, individually and on behalf of all others
similarly situated, that Defendants required caregivers to work
long shifts without bona fide meal and sleep breaks, improperly
excluded sleep and meal breaks from shifts caregivers worked when
calculating the caregivers' wages, failed to account for food and
lodging provided to caregivers when calculating their overtime
rates of pay, and failed to accurately record caregivers' hours.
Fairfield is a hospital & health care company.
A copy of the Court's order dated March 16, 2023 is available from
PacerMonitor.com at https://bit.ly/3Kgb8WQ at no extra charge.[CC]
FASTTRACK RENT: Faces Taylor Wage-and-Hour Suit in California
-------------------------------------------------------------
DIANA TAYLOR, on behalf of herself and all others similarly
situated, and on behalf of the general public, Plaintiff v.
FASTTRACK RENT A CAR, INC., a California Corporation, Company, and
DOES 1 through 10, inclusive, Defendants, Case No. 23STCV06519
(Cal. Super., Los Angeles Cty., March 24, 2023) is a representation
action brought pursuant to the California Labor Code on behalf of
Plaintiff and certain individuals who are employed by, or were
formerly employed by the Defendants.
The Plaintiff was employed by Defendants as a non-exempt, hourly
employee in California, including in and around the city of Los
Angeles. During Plaintiff's employment, she alleges that (a) she
did not receive final wages at the time of her termination; (b) she
was required to work without meal and rest periods; (c) she was
required to work either in excess of eight hours per workday or in
excess of 40 hours per workweek; (d) she was forced to receive
inaccurately itemized and deficient wage statements; (e) she did
not receive her compensation in accordance with Labor Code; (f) she
was not paid in a timely manner; and (g) she has not received
reimbursement for reasonable and necessary expenses in the course
of her job duties.
Fasttrack Rent A Car, Inc., is a car rental company doing business
in Los Angeles, California.[BN]
The Plaintiff is represented by:
Roman Otkupman, Esq.
Nidah Farishta, Esq.
OTKUPMAN LAW FIRM, A LAW CORPORATION
5743 Corsa Ave., Suite 123
Westlake Village, CA 91362
Telephone: (818) 293-5623
Facsimile: (888) 850-1310
E-mail: Roman@OLFLA.com
Nidah@OLFLA.com
FIRSTENERGY CORP: PFP Must Produce Withheld Docs in Securities Suit
-------------------------------------------------------------------
In the case, IN RE FIRSTENERGY CORP. SECURITIES LITIGATION, This
document relates to ALL ACTIONS, Civil Action 2:20-cv-3785 (S.D.
Ohio), Magistrate Judge Kimberly A. Jolson of the U.S. District
Court for the Southern District of Ohio, Eastern Division, grants
the Joint Motion to Compel brought by the Plaintiffs and Defendant
Michael Dowling to compel the production of documents which
non-party Partners for Progress, Inc., has withheld or redacted on
the basis of attorney-client privilege.
The matter is before the Court on the Joint Motion to Compel
brought by the Movants, asking the Court to compel the production
of documents which non-party Partners for Progress, Inc. ("PFP")
has withheld or redacted based on attorney-client privilege.
Additionally, they say that PFP's production thus far has been
deficient in two regards: (1) it employed a limited search-term
protocol to identify responsive documents; and (2) it failed to
search for documents which were created or received by the
attorneys at Calfee, Halter & Griswold ("Calfee") representing
PFP.
Recognizing that the exchange of discovery has already been slowed
by conferral and significant litigation, Judge Jolson issues the
interim ruling on the completeness of PFP's production so that
additional documents may now be identified and exchanged -- or, if
necessary, logged for privilege. A subsequent order on the at-issue
privilege disputes is forthcoming.
On Nov. 18, 2022, the Court ordered PFP to supplement its limited
initial production to the Movants' subpoenas by conducting "a
diligent search" for all responsive documents within its
possession, custody, or control, producing non-privileged
documents, and logging documents withheld based on privilege. By
Dec. 7, 2022, PFP made its supplemental production, and -- after
inquiry from Movants -- explained its search protocol.
The Movants then responded with purported deficiencies in the
search protocol, including the failure to search Calfee custodians
and under-inclusive search terms. They proposed additional search
terms but PFP refused to perform the search with these additional
terms unless Movants paid the costs associated with the search. And
PFP renewed earlier objections that searching Calfee custodians
would be unduly burdensome and would result only in privileged
material.
The Movants say the search-term protocol employed by PFP was
insufficient; notably, it failed to include 'FirstEnergy' (along
with variations) as a stand-alone search term. They further say
their proposed additional terms are reasonable and targeted to
return discovery related to key entities and individuals identified
in the subpoenas.
PFP has represented that these additional terms will result in over
1,000 unique additional documents to review, which will impose
significant additional costs on it. PFP says the Court should not
enforce the additional search terms because they were only raised
after the supplemental production was made and because they are
unduly burdensome. Alternatively, it says if the Court does enforce
the search terms, it should shift the costs of the corresponding
search and review to Movants, under Rule 45(d)(2)(B)(ii) of the
Federal Rules of Civil Procedure.
Judge Jolson does not find, as PFP suggests, that the Movants are
solely responsible for the belated conferral on the search
protocol. The Movants were warranted in raising their concerns with
the protocol's design. Further, there are legitimate concerns about
deficiencies in PFP's protocol, and the proposed search terms
reasonably address those concerns. Finally, the Court has been
given no reason to believe that the costs are particularly onerous
for PFP to bear.
Accordingly, PFP is ordered to employ the Movants' proposed
additional search terms and bear the costs of the associated
production. PFP will produce any non-privileged documents and
prepare and produce a privilege log for any withheld documents by
April 21, 2023.
PFP has, to date, searched the email accounts of three of its
current officers and directors, including Michael VanBuren.
VanBuren is also an attorney at Calfee, the law firm which
represents PFP. The Movants now ask the Court to compel PFP to
search the email accounts of other Calfee custodians.
PFP says the request to search additional custodians is belated and
conflicts with the parties' Joint Protocol for Production of
Documents and Electronically Stored Information. Further, it says
that any non-privileged email communications between Calfee and PFP
constituents presumably would be encompassed and produced in PFP's
searches and reviews of its directors' emails, and any other
communications would be exclusively internal communications among
Calfee lawyers about the representation, which PFP itself may not
be entitled to obtain.
Judge Jolson holds that the Movants and PFP have more work to do --
PFP cannot avoid a search of Calfee custodians altogether, but the
Movants should collaborate to reasonably limit the search to
responsive material. Accordingly, they are ordered to negotiate
search terms for relevant Calfee custodians and file a notice on
the public docket of the agreed-upon search terms by March 31,
2023. PFP will conduct the search, and if the resulting hit report
reveals an unreasonable number of documents, may confer with
Movants to further narrow the search terms. PFP will produce any
non-privileged documents and prepare and produce a privilege log
for any withheld documents by April 21, 2023.
Finally, PFP asks that the Court enter an order under Rule of
Evidence 502(d), which will allow it to produce disputed Calfee
invoices and certain emails to the Movants with fewer redactions
without waiving privilege. The Movants say the claw-back provision
of the current protective order governing the action is sufficient
to protect PFP's interests.
Judge Jolson finds it sensible to adopt the Rule 502(d) order if it
will promote the exchange of discovery between Movants and PFP.
Accordingly, PFP is ordered to provide a copy of the proposed Rule
502(d) order to the Court at jolson_chambers@ohsd.uscourts.gov. She
intends to sign and docket the order shortly thereafter.
A full-text copy of the Court's March 24, 2023 Order is available
at https://tinyurl.com/murc5a6r from Leagle.com.
FLOWERS FOODS: Bid for Decertification Denied in Ludlow Suit
------------------------------------------------------------
In the class action lawsuit captioned as DANIEL LUDLOW,
individually and on behalf of others similarly situated; and
WILLIAM LANCASTER, individually and on behalf of others similarly
situated, v. FLOWERS FOODS, INC., a Georgia corporation; FLOWERS
BAKERIES, LLC, a Georgia limited liability company; and FLOWERS
FINANCE, LLC, a limited liability company, Case No.
3:18-cv-01190-JO-JLB (S.D. Cal.), the Hon. Judge Jinsook Ohta
entered an order:
1. denying the Defendants' motion for decertification of the
Fair Labor Standards Act (FLSA) claim; and
2. denying the Plaintiffs' motion to seal without prejudice
to refiling.
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.
The public has a "right to inspect and copy public 15 and
documents, including judicial records and documents." In
considering a sealing request, the court thus begins with "a strong
presumption of access [as] the starting point." A party seeking to
seal a judicial record associated with a dispositive motion bears
the burden of overcoming this strong presumption by "articulat[ing]
compelling reasons supported by specific factual findings" for the
sealing.
The Plaintiffs 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. This is insufficient to establish the "compelling reasons"
required to justify sealing.
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 FLSA and class
action claims under the California Labor Code.
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 the 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 the Plaintiffs are not "similarly situated"
under the FLSA's joint employer test or employee-independent
contractor tests.
Flowers Foods is the national bakery company behind Wonder Bread,
Nature's Own, and Dave's Killer Bread.
A copy of the Court's order dated March 15, 2023 is available from
PacerMonitor.com at https://bit.ly/3z0pBQf at no extra charge.[CC]
FORSTER GARBUS: Bid for Summary Judgment in Ross FDCPA Suit Denied
------------------------------------------------------------------
In the case, VINCENT T. ROSS, Plaintiff v. FORSTER, GARBUS &
GARBUS, Defendant, Civil Action No. 19-0574 (ES) (MAH) (D.N.Y.),
Judge Esther Salas of the U.S. District Court for the District of
New Jersey denies the Plaintiff's motion for summary judgment.
Ross initiated the action against the Defendant seeking damages for
the Defendant's alleged violations of the Federal Debt Collection
Practices Act ("FDCPA"), 15 U.S.C. Section 1692 et seq.
Prior to 2011, the Plaintiff incurred credit card debt in the
amount of $1,090.85 with Capital One, which was subsequently
purchased by LVNV Funding LLC. On Dec. 29, 2011, the Defendant, a
debt collector collecting on the Plaintiff's debt to LVNV, filed
suit on behalf of LVNV against the Plaintiff in the Superior Court
of New Jersey, Passaic County, Law Division, seeking judgment on
the debt. On Feb. 22, 2012, the Superior Court of New Jersey
entered a default judgment against the Plaintiff in the amount of
$1,239.22.
Between April 4, 2012, and Jan. 31, 2016, the Defendant sent 13
letters and/or writs of execution to the Plaintiff seeking
collection of the judgment, which the Plaintiff received. On Jan.
31, 2018, the Defendant sent him a letter regarding collection of
the debt which indicated that the balance owed was $1,113.66 and
that a settlement of the above account can be arranged.
On Jan. 16, 2019, the Plaintiff initiated the instant action,
alleging that the Defendant's Letter violates Sections 1692e and
1692f of the FDCPA. Specifically, he alleges that the Statement is
false because the creditor has no intention of adding interest or
fees to this debt, and it is not their customary practice to do so,
and that the Defendant included the Statement to push him into
settlement by implying that failure to accept or make payment will
result in the debt increasing.
On March 17, 2019, the Defendant filed an answer. On Dec. 11, 2019,
the parties appeared before Magistrate Judge Hammer for an initial
conference under Federal Rule of Civil Procedure 16. At the
conference, the Defendant presented the letters and writs of
execution Defendant sent to Plaintiff in an attempt to collect the
debt.
On Jan. 9, 2020, Judge Hammer issued a second text order directing
the Plaintiff to inform the Court whether he intended to proceed
with the litigation. On Feb. 24, 2020, Judge Hammer issued a third
text order again directing him to inform the Court whether he
intended to proceed with the litigation and warning him that
failure to comply would result in the Court issuing "an Order to
Show Cause as to why the Complaint should not be dismissed for
failure to prosecute it and failure to comply with Court Orders."
On Feb. 26, 2020, the Plaintiff filed a letter with the Court
indicating his intent to proceed with the litigation. He explained
that he believed the case should proceed because at the initial
conference the Defendant could not articulate whether or not
interest was currently accruing on the account and regardless of
the status of the interest, that is only half of the claim. The
Defendant made no representation on whether other charges or fees
are accruing. On March 5, 2020, Judge Hammer issued a Pre-Trial
Scheduling Order setting May 25, 2020, as the deadline to file any
motion to add new parties or amend the pleadings.
On Oct. 16, 2020, the Plaintiff filed a motion to amend his
Complaint. The Defendant opposed the Plaintiff's motion to amend
and the Plaintiff filed a reply in support. On March 1, 2021, Judge
Hammer denied the Plaintiff's motion to amend. On March 15, 2021,
the Plaintiff filed a motion for reconsideration of Judge Hammer's
decision denying him leave to amend his Complaint. The Defendant
opposed. On May 27, 2021, Judge Hammer denied the Plaintiff's
motion for reconsideration. On Aug. 19, 2022, the Plaintiff filed
the instant motion for summary judgment, which is fully briefed.
The Plaintiff seeks summary judgment on his FDCPA claim brought in
his Complaint premised on the Defendant's violation of Sections
1692e and 1692f of the FDCPA. The Defendant opposes, arguing that
the Plaintiff has impermissibly sought to proceed on a new theory
at summary judgment and that the Plaintiff has failed to establish
that he is a consumer or that the debt is consumer oriented.
First, the Plaintiff argues that it is undisputed that the
Statement is open to two or more different meanings, at least one
of which is inaccurate, and he should therefore be granted summary
judgment on his Section 1692e claim. The Defendant opposes, arguing
that summary judgment should be denied because the Plaintiff has
impermissibly moved for summary judgment on a new theory -- that
the Statement is misleading or deceptive as opposed to false --
which the Plaintiff was foreclosed from pursuing when Magistrate
Judge Hammer denied him leave to amend his Complaint. In reply, the
Plaintiff argues that he has not brought a new theory at summary
judgment.
Judge Salas agrees with the Defendant. She says the Plaintiff did
not adequately argue that his theory that the Statement is
misleading is not new until his reply in support of the instant
motion for summary judgment. She finds that the Plaintiff cannot
present a new argument at this stage of litigation. The Plaintiff
cannot proceed on a new theory of liability on a motion for summary
judgment. Accordingly, the Plaintiff's motion for summary judgment
on his FDCPA claim premised on a violation of Section 1692e is
denied.
In a footnote to the Plaintiff's reply brief to the instant motion
for summary judgment, the Plaintiff contests Judge Hammer's
treatment of his March 15, 2021 motion as one for reconsideration,
arguing that the motion should have been treated as an appeal of
Judge Hammer's decision denying him leave to amend, and,
accordingly, should have been decided by Judge Salas.
Judge Salas finds that Judge Hammer's decision denying the
Plaintiff leave to amend his Complaint was not clearly erroneous or
contrary to law. Judge Hammer's decision clearly denied the
Plaintiff leave to proceed by a new theory of the case not already
included in his Complaint -- that the Statement is misleading and
deceptive because it is open to multiple interpretations, at least
one of which is false. The Plaintiff cannot now attempt to
circumvent Judge Hammer's decision and proceed with the same theory
he was denied leave to add into his Complaint. Accordingly, the
Plaintiff is limited to proceeding on his original theory of the
case as outlined in his Complaint -- that the Statement violates
Section 1692e because it is false.
The Plaintiff also moves for summary judgment on his FDCPA claim
premised on a violation of 15 U.S.C. Section 1692f. He argues that
claims for violations of Section 1692e and Section 1692f may
proceed in tandem, and that a debt collector's actions can violate
both provisions.
Judge Salas holds that the Plaintiff has not pointed to any
evidence to support his allegation that the Defendant's letter was
designed to take an unfair advantage of consumers who assumed that
there would be additional charges or fees. He has therefore not met
his burden of proving that there are no genuine issues of material
fact regarding this claim.
Accordingly, his motion for summary judgment on his FDCPA claim
premised on a violation of Section 1692f is denied. Because the
Plaintiff has not met his burden of establishing a violation of
either Section 1692e or Section 1692f, Judge Salas need not decide
whether claims under Section 1692e and Section 1692f are mutually
exclusive at this time.
The parties also dispute whether the Plaintiff has sufficiently
proven that the debt at issue was for consumer debt, the third
element of his FDCPA claim. Because she denies the Plaintiff's
motion for summary judgment on other grounds, Judge Salas need not
address this dispute. Nonetheless, to the extent the Defendant
argues that the Court lacks jurisdiction because the Plaintiff has
failed to prove that the debt is for "consumer debt," and that his
motion for summary judgment should be denied on that basis, she
finds that the Plaintiff has identified sufficient evidence to
support this element of his claim.
In sum, because the Plaintiff moves for summary judgment on his
Section 1692e claim on a theory that he was precluded from
pursuing, and because he has not met his burden on summary judgment
with respect to his Section 1692f claim, his motion is denied
without prejudice.
A full-text copy of the Court's March 24, 2023 Opinion is available
at https://tinyurl.com/394fznhu from Leagle.com.
GEICO GENERAL: Faces Suit Over Alleged Underpayment of Auto Claims
------------------------------------------------------------------
Andrew G. Simpson at insurancejournal.com reports that Geico
General Insurance Co. must face a class action suit alleging that
it has been underpaying benefits to its insureds injured in
automobile accidents.
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.
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 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: Court Awards $2.5MM in Attoryney's Fees
----------------------------------------------
In the class action lawsuit captioned as Munoz et al v. GEICO
General Insurance Company, Case No. 4:19-cv-03768-HSG (N.D. Cal.),
the Hon. Judge Haywood S. Gilliam, Jr. entered an order granting
motion for final approval and granting in part and denying in part
motion for attorneys' fees.
-- The Court awards $2,583,293.81 in attorneys' fees,
$47,446.61 in costs, and $22,500 service award to the named
the Plaintiffs.
-- The parties and settlement administrator are directed to
implement this Final Order and the settlement agreement
in accordance with the terms of the settlement agreement.
-- While the Court is persuaded that the named the Plaintiffs,
particularly the Plaintiff Subbaiah, contributed
meaningfully to this case, $15,000 is "quite high" for a
service award.
-- Thus, the Court finds that awards of $10,000 to the
Plaintiff Subbaiah, $7,500 to the Plaintiff Ventrice-
Pearson, and $5,000 to the Plaintiff Perez are adequate and
appropriate to compensate them for their efforts.
The Plaintiffs bring this consolidated class action against the
Defendant GEICO General Insurance Company, alleging that the
Defendant breached the terms of private passenger auto insurance
policies issued to the Plaintiffs and similarly situated insureds
by failing to properly include or calculate sales 22 tax (as to
leased vehicles) and regulatory fees (as to all vehicles).
The Plaintiffs 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 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)."
GEICO is a private American auto insurance company with
headquarters in Chevy Chase, Maryland.
A copy of the Court's order dated March 15, 2023 is available from
PacerMonitor.com at https://bit.ly/3LUg58S at no extra charge.[CC]
GEICO: Russo Pending Class Cert Bid Terminated
----------------------------------------------
In the class action lawsuit captioned as RUSSO v. GOVERNMENT
EMPLOYEES INSURANCE COMPANY, Case No. 2:21-cv-17234-BRM-JBC
(D.N.J.), the Hon. Judge James B. Clark, III entered a class
certification order as follows:
1) The Plaintiff's pending class certification motion is
terminated as it was filed without the Court's leave in
violation of the Pretrial Scheduling Order entered in this
matter on February 10, 2022.
2) All discovery shall be completed by April 14, 2023.
3) Any discovery disputes shall be raised to the Court via
joint letter from the parties of five (5) pages or less by
no later than April 21, 2023.
4) The Court will conduct a telephone status conference with
the parties on May 3, 2023 at 11:30 AM.
Government Employees is a private American auto insurance company.
A copy of the Court's order dated March 15, 2023 is available from
PacerMonitor.com at https://bit.ly/3lzPkvZ at no extra charge.[CC]
GENERAL MOTORS: Faces Class Action Over "Chevy Shake" Defect
------------------------------------------------------------
Jason Stoogenke at wsoctv.com reports that 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.
Now, 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.
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]
GERBER PRODUCTS: Court Narrows Claims in Norman's 2nd Amended Suit
------------------------------------------------------------------
In the case, FAITH NORMAN, Plaintiff v. GERBER PRODUCTS COMPANY,
Defendant, Case No. 21-cv-09940-JSW (N.D. Cal.), Judge Jeffrey S.
White 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 Norman's Second Amended Class Action Complaint.
The Plaintiff challenges claims made on the Defendant's products
that its products are "Non GMO." She alleges nine causes of action
against the Defendant: (1) violation of California's Unfair
Competition Law ("UCL"), Business and Professions Code sections
17200, et seq.; (2) violation of California's False Advertising Law
("FAL"), Business and Professions Code sections 17500, et seq.; (3)
violation of California's Consumers Legal Remedies Act ("CLRA"),
Civil Code sections 1750, et seq.; (4) breach of express warranty;
(5) breach of the implied warranty of merchantability; (6) unjust
enrichment/restitution; (7) negligent misrepresentation; (8) fraud;
and (9) fraudulent misrepresentation.
Now before the Court for consideration is the Defendant motion to
dismiss the AAC. Judge White has considered the parties' papers,
relevant legal authority, and the record in the case, and he finds
the motion can be resolved without oral argument. He vacates the
hearing set for March 31, 2023.
Each of the Plaintiff's claims are based on the same underlying
facts and legal theory: The Defendant advertises its Products as
Non GMO when they are not. The Plaintiff has removed the
conditional language used in the FAC. She also alleges that she
lacks an adequate remedy at law because to obtain a full refund she
would be required to prove the Products had no market value. She
also alleges that she would be required to make greater showings to
prove her CLRA and common law claims than she would under the UCL
or the FAL. Finally, she alleges damages are less prompt because a
jury trial may take longer than a bench trial, rendering damages
less prompt and certain.
Judge White concludes that the Plaintiff fails to allege she lacks
an adequate remedy at law. He says the allegations do not establish
that the damages the Plaintiff seeks are necessarily inadequate or
incomplete. That is, the Plaintiff's inability to obtain damages
would result from her CLRA and common law claims' failure on the
merits not that there is an inherent limitation of the legal remedy
that renders it inadequate. Accordingly, he grants the Defendant's
motion to dismiss and dismisses the claims for equitable
restitution and unjust enrichment. He does not grant leave to amend
at this time, but he will not preclude the Plaintiff from seeking
leave to amend as the litigation proceeds.
The Plaintiff continues to define GMOs as organisms that have been
altered through genetic modification. She also includes a list of
ingredients in the Defendant's Products that she alleges are GMOs,
including Mixed Tocopheryls (i.e., D-Alpha Tocopheryl
Acetate)/Vitamin E (hereinafter "Mixed Tocopheryls"). The Defendant
argues the Mixed Tocopheryl claims should be dismissed for the same
reasons the Court previously dismissed the Plaintiff's claims based
on "Category 2" ingredients.
Judge White denies the Defendant's motion to dismiss claims based
on Mixed Tocopheryls/Vitamin E. He finds that the Court previously
concluded that the guide the Plaintiff referenced stated the
ingredients "may" be Non GMO and declined to accept as true
allegations that those ingredients are, in fact, GMOs. And,
although the Plaintiff's allegations regarding Mixed Tocopheryls
are not as detailed as other ingredients, such as citric acid or
soy lecithin, it is reasonable to infer that each of the listed
ingredients fall within one of the two larger categories set forth
in paragraphs 41(a) and 41(b). Accordingly, the Defendant's motion
to dismiss is denied in part.
For the foregoing reasons, Judge White grants in part and denies in
part the Defendant's motion to dismiss. The parties will submit the
stipulation and proposed scheduling order required by Docket No. 46
by April 7, 2023.
A full-text copy of the Court's March 24, 2023 Order is available
at https://tinyurl.com/yj4f4dyu from Leagle.com.
GRANITE SERVICES: Rodriguez Seeks to File Exhibits Under Seal
-------------------------------------------------------------
In the class action lawsuit captioned as JOSE LUIS RODRIGUEZ, JR.,
INDIVIDUALLY AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED, v.
GRANITE SERVICES INTERNATIONAL, INC., AND FIELDCORE SERVICES
SOLUTIONS, LLC, Case No. 1:21-cv-02689-AT (N.D. Ga.), the Plaintiff
asks the Court to enter an order permitting the following documents
to be filed under seal: Exhibit E, Exhibit H, Exhibit I and Exhibit
J.
Only the Court, the Plaintiff's counsel and the Defendants' counsel
should have access to the documents referenced within this Motion
without further order of the Court.
On June 14, 2022, the Court entered the Parties Agreed Stipulated
Confidentiality and Protective Order. On January 5, 2023, the
Plaintiff filed his motion for class certification.
On March 6, 2023, the Defendants' Counsel contacted the Plaintiff's
Counsel to inform them that these documents are subject to the
Parties' Stipulated Confidentiality and Protective Order and should
not have been filed on the public docket. the Plaintiff does not
disagree and apologies for the inadvertent oversight.
Granite Services provides service solutions to the power generation
industry.
A copy of the the Plaintiff's motion dated March 15, 2023 is
available from PacerMonitor.com at https://bit.ly/42BMkzJ at no
extra charge.[CC]
The Plaintiff is represented by:
C. Ryan Morgan, Esq.
Andrew R. Frisch, Esq.
MORGAN & MORGAN, P.A.
8581 Peters Road, Suite 4000
Plantation, FL 33324
Telephone: (954) WORKERS
Facsimile: (954) 327-3013
E-mail: rmorgan@forthepeople.com
afrisch@forthepeople.com
- and -
Michael A. Josephson, Esq.
Andrew W. Dunlap, Esq.
JOSEPHSON DUNLAP LLP
11 Greenway Plaza, Suite 3050
Houston, TX 77005
Telephone: (713) 352-1100
Facsimile: (713) 352-3300
E-mail: mjosephson@mybackwages.com
adunlap@mybackwages.com
- and -
Richard J. (Rex) Burch, Esq.
BRUCKNER B URCH PLLC
8 Greenway Plaza, Suite 1500
Houston, TX 77046
Telephone: (713) 877-8788
Facsimile: (710) 877-8065
E-mail: rburch@brucknerburch.com
GRIDSUM HOLDING: Opposition to Class Cert Bid Due May 12
--------------------------------------------------------
In the class action lawsuit captioned as Xu v. Gridsum Holding Inc.
et al., Case No. 1:18-cv-03655-GHW (S.D.N.Y.), the Hon. Judge
Gregory H. Woods entered an order granting the parties' request for
an extension of time to file their opposition and reply papers to
Lead Plaintiffs' motion for class certification.
-- The Defendants' opposition is due no later than May 12,
2023.
-- The Lead Plaintiffs' reply, if any, is due no later than
June 13, 2023.
Gridsum Holding is a provider of cloud-based big-data analytics and
AI solutions for multinational and domestic enterprises and
government agencies.
A copy of the Court's order dated March 16, 2023 is available from
PacerMonitor.com at https://bit.ly/40Gqpps at no extra charge.[CC]
The Plaintiff is represented by:
Michael C. Tu, Esq.
COOLEY LLP
355 S. Grand Avenue, Suite 900
Los Angeles, CA 90071
Telephone: (213) 561 3205
Facsimile: (213) 561 3244
E-mail: mctu@cooley.com
HARMON STORES: Palmeri Sues Over Mass Layoff Without 60-Day Notice
------------------------------------------------------------------
MICHAEL PALMERI, individually and on behalf of all other persons
similarly situated who were employed by HARMON STORES, INC. and/or
BED BATH & BEYOND, INC. v. HARMON STORES, INC. and BED BATH &
BEYOND, INC., Case No. 2:23-cv-01682 (D.N.J., Mar. 24, 2023)
alleges that the Defendants failed to provide at least 60 days'
written notice to the Named Plaintiff and the Putative Class prior
to the termination of their employment in violations of the federal
Worker Adjustment and Restraining Notification Act and the New
Jersey Worker Adjustment and Retraining Notification Act.
In February and March of 2023, the Defendants carried out a
termination of operations and/or mass layoff that resulted in the
loss of employment for at least 33% of its workforce and at least
50 full-time employees, not including part-time employees. The
Named Plaintiff did not receive written notice that complied with
the NJ WARN Act or Federal WARN Act at least 60 days in advance of
the termination of his employment, nor did he receive as much
notice as practicable under the circumstances, the lawsuit
contends.
The Defendants allegedly failed to pay the Named Plaintiff and the
Putative Class Members severance pay equal to one week of pay for
each full year of employment, which shall be paid at the average
regular rate of compensation received during the employee's last
three years of employment with the employer or the final regular
rate of compensation paid to the employee, whichever rate is
higher. The Defendants are liable to the Named Plaintiffs and the
Putative Class Members for backpay and benefits for each day of the
violation up to a maximum of 60 days, as well as reasonable
attorneys' fees and costs, the lawsuit claims.
This action is brought on behalf of the Named Plaintiff and the
Putative Class consisting of each and every person who worked for
Defendants and had their employment terminated as a result of
Defendants' mass layoffs, termination of operations, and/or plant
closure or whose employment was terminated as the reasonably
foreseeable consequence of the mass layoffs, termination of
operations, and/or plant closure ordered by Defendants.
Plaintiff Palmeri was employed by the Defendants as a Store Manager
from 2015 until March 2, 2023.
Harmon Stores, Inc. operates as a cosmetics, and health and beauty
care discount retailer.[BN]
The Plaintiff is represented by:
Lloyd R. Ambinder, Esq.
LaDonna M. Lusher, Esq.
VIRGINIA & AMBINDER, LLP
40 Broad Street, 7th Floor
New York, NY 10004
Telephone: (212) 943-9080
E-mail: lambinder@vandallp.com
llusher@vandallp.com
- and -
Mahir Nisar, Esq.
Susan Ghim, Esq.
Casey Wolnowski, Esq.
NISAR LAW GROUP, PC
60 East 42nd Street, Suite 4600
New York, NY 10165
Telephone: (646) 889-1011
E-mail: mnisar@nisarlaw.com
sghim@Nisarlaw.com
cwolnowski@nisarlaw.com
HELIOS CABLE: Fails to Pay OT Wages Under FLSA, Smith Suit Alleges
------------------------------------------------------------------
Keith Smith and Jeff Edinger, Individually and on behalf of other
members of the general public similarly situated v. Helios Cable
Construction LLC, and Philip Agnew, Case No. 2:23-cv-01068-MHW-EPD
(S.D. Ohio, Mar. 24, 2023) seeks to recover overtime wages pursuant
to the Fair Labor Standards Act, the Ohio's Minimum Fair Wage
Standards Act, and the Ohio Prompt Pay Act.
The Plaintiffs and the Putative Class Members are those similarly
situated persons who worked for Defendants as "independent
contractors" for three years preceding the filing of this Complaint
and through the final disposition of this matter, and were paid
hourly for all hours worked but did not receive overtime for all
hours worked over 40 in each workweek.
According to the complaint, the Defendants improperly classified
the Named Plaintiffs and the Putative Class Members as independent
contractors. The classification was improper because the Named
Plaintiffs and the Putative Class Members were not in business for
themselves. Instead, they were economically dependent upon
Defendants for their work.
The Plaintiffs and the Putative Class Members routinely work (and
worked) in excess of 40 hours per workweek but were not paid
overtime of at least one and one-half their regular rate of pay.
The decision by the Defendants not to classify the Plaintiffs and
the Putative Class Members as employees and to pay them overtime
compensation was neither reasonable nor in good faith, the uit
contends.
Plaintiff Smith worked for the Defendants as an aerial construction
foreman/laborer from January of 2022 to July of 2022. Plaintiff
Edinger worked for the Defendants as an aerial construction laborer
from March of 2022 to July of 2022.
HCC operates as a fiber optic cable construction company.[BN]
The Plaintiffs are represented by:
Matthew J.P. Coffman, Esq.
COFFMAN LEGAL, LLC
1550 Old Henderson Rd., Suite 126
Columbus, OH 43220
Telephone: (614) 949-1181
Facsimile: (614) 386-9964
E-mail: mcoffman@mcoffmanlegal.com
- and -
Peter Contreras, Esq.
CONTRERAS LAW, LLC
1550 Old Henderson Rd., Suite 126
Columbus, OH 43220
Telephone: (614) 787-4878
Facsimile: (614) 957-7515
E-mail: peter.contreras@contrerasfirm.com
HOME POINT: Al-Johar Seeks to Certify Class in Securities Suit
--------------------------------------------------------------
In the class action lawsuit re: Home Point Capital Inc. Securities
Litigation, Case No. 4:21-cv-11457-SDK-KGA (E.D. Mich.), the Lead
Plaintiff Abdulaziz Jamal Johar Al-Johar asks the Court to enter an
order:
1. certifying under Rule 23(a) and (b)(3) of the
Federal Rules of Civil Procedure a class consisting of the
following:
"All persons and entities other than the Defendants that
purchased or otherwise acquired Home Point common stock in
the IPO or purchased Home Point common stock thereafter in
the stock market pursuant and/or traceable to the
Company's Offering Documents issued in connection with the
IPO and were damaged thereby;"
Excluded from the Class are the Defendants, the officers
and directors of the Company, members of the Individual
the Defendants' immediate families and their legal
representatives, heirs, successors or assigns, and any
entity in which the officers and directors of the Company
have or had a controlling interest;
2. appointing himself as class representative; and
3. appointing the law firm Robbins Geller Rudman & Dowd LLP
as class counsel.
Home Point is a residential mortgage originator and servicer.
A copy of the the Lead Plaintiff's motion dated March 15, 2023 is
available from PacerMonitor.com at https://bit.ly/3niPcRM at no
extra charge.[CC]
The Plaintiff is represented by:
Chad Johnson, Esq.
Jonathan Zweig, Esq.
Ana Avalos Cuellar, Esq.
ROBBINS GELLER RUDMAN
& DOWD LLP
420 Lexington Avenue, Suite 1832
New York, NY 10170
Telephone: (212) 432-5100
E-mail: chadj@rgrdlaw.com
jzweig@rgrdlaw.com
aavalos@rgrdlaw.com
- and -
Thomas C. Michaud, Esq.
Francis E. Judd, Esq.
VANOVERBEKE, MICHAUD &
TIMMONY, P.C.
79 Alfred Street
Detroit, MI 48201
Telephone: (313) 578-1200
E-mail: tmichaud@vmtlaw.com
fjudd@vmtlaw.com
HOWARD BARTON: Faces Ovalle ERISA Suit Over Unfair Del-Air Deal
---------------------------------------------------------------
Julissa Ovalle, Lynne Cassani, Angel Buitrago, Michael Mize, and
Cynthia Medina, as representatives of a class of similarly situated
persons, and on behalf of Employee Stock Ownership Plan and Trust
for the Employees of Del-Air Heating, Air Conditioning and
Refrigeration, Inc. (the "ESOP") v. Howard Barton, Diane Dello
Russo, Donald Fortin, Charles Brinkley, James Urbach, and Astara
Capital Partners Fund I, L.P., Case No. 6:23-cv-00551 (M.D. Fla.,
Mar. 24, 2023) alleges that the Defendants forced the ESOP to sell
control of Del-Air for less than fair market value in the wake of
the company founder's death, in violation of the Employee
Retirement Income Security Act.
According to the complaint, instead of acting in the interest of
Del-Air employees, the Defendants looked out for their own
interests, looked the other way, or knowingly profited from the
unfair deal, the Plaintiff contends. As a result, the Plaintiffs
and other ESOP participants lost more than half their retirement
benefits.
Beginning in spring 2022 or earlier, Mr. Barton acted as an agent
of both the seller (the ESOP) and the potential buyer (the Astara
Fund and its affiliates). The Del-Air board did not shop the
company in the marketplace and dealt only with Barton and Astara
Capital as potential buyers. After the deal was substantially
complete, Mr. Barton resigned from Del-Air's board on October 1,
2022. Accordingly, Barton, Diane Dello Russo, Fortin, and Brinkley
caused the prohibited transactions in their capacities as the ESOP
fiduciaries responsible for recommending Urbach, as trustee, to
transfer the ESOP's shares in the deal. Defendant Urbach also
caused the prohibited transactions in his capacity as the ESOP
fiduciary who ultimately voted for and executed the transfer on
behalf of the ESOP.
The Plaintiffs bring this action on behalf of the ESOP, and on
behalf of ESOP participants as a class, to recover lost benefits,
remedy the Defendants' unlawful conduct, and prevent future harm to
the ESOP.
Plaintiff Julissa Ovalle worked for Del-Air between 2000 and 2022
and has a current account in the ESOP. Plaintiff Lynne Cassani
worked for Del-Air between 2012 and 2022 and has a current account
in the ESOP. They both lost more than half the value of her ESOP
benefits through the recapitalization transaction.
Howard Barton is a natural person residing in New Smyrna Beach,
Florida. He was a member of Del-Air's board of directors between
June 2021 and October 1, 2022.[BN]
The Plaintiffs are represented by:
Marc R. Edelman, Esq.
Ryan Morgan, Esq.
James J. Henson, Esq.
MORGAN & MORGAN, P.A.
201 N. Franklin Street, Suite 700
Tampa, FL 33602
Telephone 813-223-5505
Facsimile: (813) 257-0572
E-mail: MEdelman@forthepeople.com
RMorgan@forthepeople.com
jjhenson@forthepeople.com
- and -
Carl F. Engstrom, Esq.
ENGSTROM LEE MCDONOUGH
THOMPSON & THOMSON LLC
729 N Washington Ave, Suite 600
Minneapolis, MN 55401
Telephone: (612) 305-8349
E-mail: cengstrom@engstromlee.com
mthomson@engstromlee.com
JOHN MCKOWEN: Class Settlement in Paulson Suit Gets Final Nod
-------------------------------------------------------------
In the class action lawsuit captioned as JOHN PAULSON, Individually
and on Behalf of all Others Similarly Situated, v. JOHN R. MCKOWEN,
WAYNE HARDING, and TIMOTHY BEALL, Case No. 1:19-cv-02639-PAB-NRN
(D. Colo.), the Hon. Judge Philip A. Brimmer entered an order:
1. granting the Plaintiff's motion for final approval of the
settlement;
2. granting the Plaintiffs' motion for an award of attorneys'
fees, incentive award, and reimbursement of litigation
expenses; and
3. certifying the class as follows pursuant to Rule 23(b)(3)
of the Federal Rules of Civil Procedure, and for the
purposes of settlement only:
"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");"
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.
Excluded from the Class are (1) the Defendants; (2) the
officers and directors of Two Rivers and GrowCo during the
Class Period as set forth in the attached Exhibit E for
securities purchased at the time or after they were
officers or directors; (3) any judge or judicial officer
who may hear any aspect of this Class Action and his or
her law clerks; and (4) except as provided in clause (2)
of this paragraph above, all persons or entities released
in the Settlement.
The Court further ordered that:
-- The Court 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 shall file the Settlement Agreement as a
separate docket entry within seven days of the entry of
this order.
-- The parties and their counsel shall 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.
-- The Class Counsel is awarded $495,959.12 from the
Settlement Fund, which represents one third of the net
Settlement Fund.
-- The Plaintiff John Paulson is awarded an incentive award
of $5,000 from the Settlement Fund.
-- The Class Counsel shall be reimbursed $6,650.65 in costs
from the Settlement Fund.
A copy of the Court's order dated March 15, 2023 is available from
PacerMonitor.com at https://bit.ly/3FMaaPn at no extra charge.[CC]
JOHNSON & JOHNSON: Bid to Dismiss Amended Hernandez Suit Granted
----------------------------------------------------------------
In the case, EDUARDO HERNANDEZ et al., Plaintiffs v. JOHNSON &
JOHNSON CONSUMER INC., Defendant, Civil Action No. 19-15679 (ZNQ)
(TJB) (D.N.J.), Judge Zahid N. Quraishi of the U.S. District Court
for the District of New Jersey grants the Defendant's Motion to
Dismiss Plaintiffs' Amended Complaint.
The matter comes before the Court upon the Defendant's Motion to
Dismiss Plaintiffs Eduardo Hernandez, Greg Hofer, Margaret Criner,
Robert Urantia, Terri Else, Thomas Butler, Glenn Parker, and Maura
Tuso's Amended Class Action Complaint, brought by the Plaintiffs
individually and on behalf of others similarly situated. The
Plaintiffs opposed the Defendant's motion and the Defendant
replied.
After careful consideration of the Parties' submissions, Judge
Quraishi decides the Motion without oral argument pursuant to Local
Civil Rule 78.1. For the reasons he set forth in the accompanying
Memorandum Opinion and other good cause shown, he grants the
Defendant's Motion to Dismiss. Accordingly, all Counts within the
Plaintiffs' Amended Class Action Complaint are dismissed with
prejudice.
The Clerk's Office will terminate ECF No. 69 and close the case.
A full-text copy of the Court's March 24, 2023 Order is available
at https://tinyurl.com/42s94dw2 from Leagle.com.
JOHNSON & JOHNSON: Court Dismisses Hernandez Suit With Prejudice
----------------------------------------------------------------
In the case, EDUARDO HERNANDEZ, et al., Plaintiffs v. JOHNSON &
JOHNSON CONSUMER INC., Defendant, Civil Action No. 19-15679 (ZNQ)
(TJB) (D.N.J.), Judge Zahid N. Quraishi of the U.S. District Court
for the District of New Jersey grants the Defendant's Motion to
Dismiss Plaintiffs Eduardo Hernandez, Margaret Criner, Terri Else,
Thomas Butler, Glenn Parker, and Maura Tuso's Amended Class Action
Complaint.
The Plaintiffs are individuals who were allegedly misled or
deceived by the Defendant to purchase Tylenol rapid release
gelcaps. Specifically, they allege they previously purchased Rapid
Release Gelcaps over other Tylenol brand and other acetaminophen
products solely or in part because Rapid Release Gelcaps were
advertised and labeled as 'rapid release' offering 'rapid relief'
and they hoped for fast pain relief.
As such, the Plaintiffs aver the Defendant misled them into
believing that the Rapid Release Gelcaps would provide faster
relief than other, cheaper acetaminophen products, such as the
traditional Tylenol tablets. They would not have purchased the
Rapid Release Gelcaps had the Defendant disclosed accurate
information about the products.
In alleging the Defendant's deception, the Plaintiffs allege that
the term 'rapid release' does not actually mean that the drug works
faster for consumers than non-rapid release products. Instead, they
cite "a new study" that allegedly demonstrates Rapid Release
Gelcaps dissolve slower than the Defendant's non-rapid release
products. No individual Plaintiff alleges that they will continue
to buy Rapid Release Gelcaps in the future. Instead, all their
allegations allege only past harm from their previous purchase of
the product.
On July 22, 2019, the Plaintiffs filed their original Complaint in
the Court. On Sept. 27, 2019, the Defendant moved to dismiss the
Plaintiffs' original Complaint. On May 19, 2020, the Defendant's
motion to dismiss the Plaintiffs' original Complaint was granted in
part and denied in part. After the Court's Order, only four of the
Plaintiffs' original nine claims remained against the Defendant.
The four claims remaining were (1) violation of California False
Advertising Law; (2) violation of California Unfair Competition
Law; (3) violation of California Consumers Legal Remedies Act; and
(4) unjust enrichment individually and on behalf of the National
Class. The Plaintiffs' original Complaint sought damages,
injunctive relief, and declaratory judgment, among other things.
On July 8, 2022, the Plaintiffs filed a motion for leave to file an
amended complaint. On July 29, 2022, the Court granted that motion.
Subsequently, on Aug. 2, 2022, the Plaintiffs timely filed their
Amended Complaint. Their Amended Complaint only brings three counts
against the Defendant: (1) violation of California False
Advertising Law; (2) violation of California Unfair Competition
Law; and (3) violation of California Consumers Legal Remedies Act.
Moreover, their Amended Complaint only seeks injunctive relief
against the Defendant.
On Sept. 23, 2022, the Defendant brought the instant motion,
seeking to dismiss the Plaintiffs' Amended Complaint. It contends
that Third Circuit precedent dictates the Plaintiffs' Amended
Complaint be dismissed because the Plaintiffs lack Article III
standing. The Plaintiffs oppose, arguing that because standing is a
"substantive law issue," California and Ninth Circuit case law must
guide the Court's standing analysis.
Judge Quraishi finds that the Plaintiffs seek only injunctive
relief and the allegations in their Amended Complaint allege only
past harm from the Defendant's allegedly deceptive practices. The
Plaintiffs, in bringing the class action lawsuit, also implicitly
recognize that they are aware of the harm Rapid Release Gelcaps
cause.
As such, viewing the Plaintiffs as rational actors in the free
market possessing information that affects their purchasing
decisions, there is no risk of future harm where the Plaintiffs
will presumably no longer purchase the Defendant's Rapid Release
Gelcaps. For this reason, the Plaintiffs cannot show an injury in
fact, and therefore, they lack Article III standing to bring their
claims.
For these reasons and because the Plaintiffs were already granted
leave to amend their pleadings, the Plaintiffs' Amended Complaint
is dismissed with prejudice.
A full-text copy of the Court's March 24, 2023 Memorandum Opinion
is available at https://tinyurl.com/2p8jt63j from Leagle.com.
JP BODEN: Secretly Reports Visitor's Info to FB, Rodriguez Alleges
------------------------------------------------------------------
REBEKAH RODRIGUEZ, individually and on behalf of all others
similarly situated v. JP BODEN SERVICES INC., a Delaware
corporation d/b/a/ BODENUSA.COM, Case No. 3:23-cv-00534-BEN-WVG
(S.D. Cal., Mar. 24, 2023) alleges that whenever someone watches a
video on https://www.bodenusa.com website, the Defendant secretly
reports all the details to Meta, Inc (and its subsidiary Facebook)
the visitor's personally identifiable information, and the titles
watched, in violation of the Video Privacy Protection Act.
The Defendant utilized the Facebook Tracking Pixel to compel the
Plaintiffs' web browser to transfer Plaintiffs' identifying
information, like their Facebook IDs, along with Plaintiff's event
data, like the title of the videos viewed. Accordingly, When a
visitor views the video on bodenusa.com while logged into Facebook,
the Defendant knowingly compels a visitor's browser to transmit the
c user cookie to Facebook. The c user cookie contains that
visitor's unencrypted Facebook ID. The Defendant knowingly
disclosed Plaintiff's and Class members' PII because the Defendant
used that data to build audiences on Facebook and retarget them for
its advertising campaigns, the lawsuit claims.
The Plaintiff and Class members did not provide Defendant with any
form of consent—either written or otherwise—to disclose their
PII to third parties, the suit asserts.
The Plaintiff is a citizen of California who resides in this
Judicial District. The Plaintiff is also a consumer advocate who
played and watched a video in February 2023 on Defendant's website
at the link
https://www.bodenusa.com/en-us/boden-quality-clothing#Footer.
JP Boden is a "video tape service providers" that creates, hosts,
and delivers videos on its websites.[BN]
The Plaintiff is represented by:
Scott J. Ferrell, Esq.
PACIFIC TRIAL ATTORNEYS
4100 Newport Place Drive, Ste. 800
Newport Beach, CA 92660
Telephone: (949) 706-6464
Facsimile: (949) 706-6469
E-mail: sferrell@pacifictrialattorneys.com
KINDERFARMS LLC: Faces Noori Suit Over Kids' Medicine False Ads
---------------------------------------------------------------
CHRISTINA NOORI, individually and on behalf of all others similarly
situated v. KINDERFARMS LLC, Case No. 4:23-cv-01409-DMR (N.D. Cal.,
Mar. 24, 2023) alleges that the Defendant makes false and
misleading "non-toxic" claims about its KinderMed children's
medicine product line, including "Pain & Fever," "Cough &
Congestion," and "Nighttime Cold & Cough" over the counter
medicines, to sell KinderFarms products at a premium price.
According to the complaint, even though the Defendant knows that
the ingredients in KinderMed products are in fact toxic, the
Defendant continues to make "non-toxic" misrepresentations because
Defendant also knows that consumers choose KinderMed over other
products based on "non-toxic" labeling statements, the Plaintiff
contends.
The Products each contain either Acetaminophen, Dextromethorphan,
or Diphenhydramine, which are all inherently toxic substances. The
majority of KinderMed Products prominently display the "OUR
PROMISE" box containing the Toxicity Representations at issue.
These Toxicity Representations are contrary to the widespread
expert consensus that acetaminophen carries toxicity potential, as
reflected in FDA information and guidance from health
professionals, making KinderFarms' "Promise" objectively false and
misleading, says the suit.
The Plaintiff and Class Members thus suffered monetary damages as a
result of Defendant's deceptive and false representations. The
Plaintiff seeks relief in this action individually and on behalf of
those similarly situated, and seeks to represent a National Class
and a California Subclass. The Plaintiff also seeks relief in this
action individually and on behalf of purchasers of the KinderMed
Products in California for violation of Civil Code, the California
Consumer Legal Remedies Act, California's Unfair Competition Law,
and California's False Advertising Law.
In November 2022, the Plaintiff Noori purchased KinderMed Kids'
Pain & 22 Fever for $6.99 from a brick and mortar Walgreens store
in San Leandro, California. Prior to her purchase of the Product,
the Plaintiff Noori reviewed the product's labeling and packaging
and saw that the Product was purportedly "non-toxic" on the side
panel.
KinderFarms manufactures, sells, and/or distributes
KinderMed-branded products.[BN]
The Plaintiff is represented by:
L. Timothy Fisher, Esq.
Jenna L. Gavenman
BURSOR & FISHER, P.A.
1990 North California Blvd., Suite 940
Walnut Creek, CA 94596
Telephone: (925) 300-4455
Facsimile: (925) 407-2700
E-mail: ltfisher@bursor.com
jgavenman@bursor.com
KNIGHT TRANSPORTATION: $400K Deal in Martinez Suit Has Prelim. Nod
------------------------------------------------------------------
In the case, ROBERT MARTINEZ, an individual, on behalf of himself
and all others similarly situated, Plaintiff v. KNIGHT
TRANSPORTATION, INC. dba ARIZONA KNIGHT TRANSPORTATION, INC.,
Defendant, Case No. 1:16-cv-01730-SKO (E.D. Cal.), Magistrate Judge
Sheila K. Oberto of the U.S. District Court for the Eastern
District of California grants the Plaintiff's renewed motion for
preliminary approval of a class action settlement and conditional
certification of settlement class filed on Jan. 30, 2023.
The Plaintiff and the putative class members were employed as truck
drivers by the Defendant. Their job responsibilities included
making deliveries of dry goods, produce, materials, and other
products to various businesses located throughout California.
The Plaintiff and the putative class members allege that they
typically worked between 10 and 14 hours per day, 5 to 6 days per
week, and 52 weeks per year. According to the allegations of the
complaint, the Defendant failed to provide class members with
appropriate meal and rest breaks as required under California law.
Moreover, although the class members were compensated based on a
piece-rate formula, the Defendant did not pay them a separate
hourly wage to compensate them for rest breaks and for performing
non-driving tasks.
Based on these allegations, the Plaintiff originally filed his
class action complaint in the Tulare County Superior Court on Sept.
30, 2016. His complaint asserts wage, hour, and other labor-related
claims in violation of the California Labor Code and California
Business and Professions Code, which he alleges give rise to
penalties under California's Private Attorney's General Act
("PAGA").
The Defendant answered the complaint on Nov. 10, 2016 and removed
the case to this Court on diversity grounds under the Class Action
Fairness Act ("CAFA"), 28 U.S.C Section 1332(d), on Nov. 14, 2016.
On March 21, 2017, the Defendant filed a motion to change venue
seeking transfer of the action to the District of Arizona pursuant
to 28 U.S.C. Section 1404(a). The motion was denied on June 23,
2017.
On March 2, 2018, the Plaintiff filed a motion to certify the
class, which was granted on Dec. 3, 2018.
The Court certified the following class: All current and former
truck drivers employed by defendant Knight Transportation, Inc.,
who advised defendant that they resided in Oregon, Nevada, Arizona,
Utah, and/or Colorado, who were paid in whole or in part on a
piece-rate basis, and who drove one or more routes of five hours or
more entirely within the State of California for defendant during
the Class Period from Sept. 30, 2012 through Dec. 3, 2018.
The Class was certified as to the following causes of action:
1. The Plaintiff's first cause of action for the Defendant's
failure to provide duty-free meal breaks and pay missed meal break
premium in violation of Labor Code Section 512 and 226.7 and Wage
Order No. 9-2001, Section 11 (challenging the Defendant's uniform
cargo security policy that drivers had to watch their trucks at all
times, even while eating);
2. The Plaintiff's second cause of action for the Defendant's
failure to pay Class members separately and hourly for time spent
on inspections and detention time in California in violation of
Labor Code Sections 1194 and 226.2 (challenging the Defendant's
uniform compensation policy that paid its non-resident drivers for
routes that began and ended in California on a per mile basis with
some additional hourly pay for detention time over two hours, but
no separate and hourly pay for inspection and detention time);
3. The Plaintiff's third cause of action for the Defendant's
failure to provide the Class with paid rest breaks and pay rest
break premiums for unpaid rest breaks of the Class members on their
California routes in violation of Labor Code Section 226.7 and Wage
Order No. 9-2001, Section 12(A)-(B) (challenging the Defendant's
uniform compensation and rest break policy and practice failed to
provide separate and hourly pay for the Class members' rest periods
on their routes that began and ended in California); and
4. The Plaintiff's sixth cause of action for the Defendant's
unfair business practices, in violation of Business and Professions
Code Sections 17200 et seq. (the UCL), based entirely on the
foregoing violations, all of which occurred 100% within the State
of California.
The parties agreed to participate in private mediation and an
exchange of additional informal discovery and information. In June
2021, the parties attended an all-day mediation before Mark S.
Rudy, who Plaintiff's counsel describes as a well-respected wage
and hour mediator.
On Nov. 10, 2021, the Plaintiff filed an unopposed motion for
preliminary approval of the class action settlement, which was
denied without prejudice on Oct. 25, 2022. On Jan. 30, 2023, the
Plaintiff filed the instant renewed motion for preliminary approval
of the class action settlement.
For settlement purposes, the parties request approval of the
following class of an estimated 5,500 individuals: "All current and
former truck drivers employed by defendant Knight Transportation,
Inc., who advised defendant that they resided in Oregon, Nevada,
Arizona, Utah, and/or Colorado, who were paid in whole or in part
on a piece-rate basis, and who drove one or more routes of five
hours or more entirely within the State of California for defendant
during the 'Class Period' from September 30, 2012, through
preliminary approval" of the settlement."
The Plaintiff has defined "PAGA Claim Members" as "any and all
Class Members, who worked for Defendant at any time from September
27, 2015 up to preliminary approval" of the settlement. Twenty-five
percent of the civil PAGA penalties will be paid to the PAGA Claim
Members as part of their PAGA payment share.
For settlement purposes, the parties have defined the "Class
Period" as the period from Sept. 30, 2012 through preliminary
approval of the settlement. By contrast, the relevant period for
the PAGA claims is Sept. 27, 2015, through preliminary approval.
The Settlement Agreement defines the Released Parties as "(a) all
of Knight's present and former parent companies, subsidiaries,
related or affiliated companies (including but not limited to
Knight-Swift Transportation Holdings, Inc. and Knight Truck and
Trailer Sales LLC); (b) Knight's divisions, and (c) the present and
former officers, directors, members, managers, shareholders,
agents, insurers, administrators, fiduciaries, trustees, operators,
partners, joint ventures, franchisees, franchisors, consultants,
contractors, attorneys, successors or assignees."
Under the Settlement Agreement, the Defendant will pay a total of
$400,000 (the "Gross Settlement Amount" or "GSA") allocated as
follows: (1) up to $100,000 (25% of the GSA) for attorney's fees
and up to $20,000 for litigation costs; (2) $10,000 incentive award
for the Plaintiff; (3) $20,000 in civil PAGA penalties, with
$15,000 of the penalties payable to the California Labor and
Workforce Development Agency ("LWDA");4 and (4) an estimated
$29,558 in settlement administration costs.
Assuming these allocations are awarded in full, approximately
$225,442 (the "Net Settlement Amount" or "NSA") will be available
for distribution to Settlement Class Members who submit a claim
form and who do not submit a timely and valid election not to
participate in the settlement. The NSA will be divided by the
"Total Calendar Weeks," i.e., the total number of calendar weeks
worked by all Settlement Class Members during the Class Period, and
the resulting number will be the "Calendar Week Value." Each
Participating Class Member's payment under the Settlement Agreement
will be calculated by multiplying his or her number of calendar
weeks worked during the Class Period by the Calendar Week Value.
PAGA Claim Members (whether or not they are Settlement Class
Members or Participating Class Members) will be allocated a pro
rata portion of the $5,000 PAGA allocation ("Individual PAGA Claim
Payments"), which will be divided evenly between the PAGA Claim
Members and added to the amount they will receive as Participating
Class Member or will be sent separately for Settlement Class
Members who have not filed a Claim Form or Class Members that have
opted out of the Settlement.
The resulting sum of the two component payments for the Class
Members who are also PAGA Claim Members will equal each
Participating Class Member's "Individual Settlement Payment." For
Class Members who are not PAGA Claim Members, their Individual
Settlement Payment will consist solely of the amount that is the
product of their calendar weeks worked within the Class Period
times the Calendar Week Value PAGA Claim Members who opt-out of the
class settlement will still receive their Individual PAGA payment,
since there is no right to opt-out of a PAGA settlement.
The settlement is "partially reversionary": only Participating
Class Members will receive Settlement Payments and only PAGA Claims
Members will be allocated and forwarded Individual PAGA Claim
Payments, and those amounts not claimed, subject to a "50% floor"
on distribution of the NSA.
Within 60 days after the notice is mailed, the Class Members will
be required to accurately complete and sign a "Claim Form." The
Settlement Class Members who do not properly or timely submit a
Claim Form will not be entitled to any portion of the NSA (other
than payments from the PAGA allocation) but will be bound by the
release contained in the Settlement Agreement.
Assuming 100 percent participation, the average settlement amount
per Participating Class Member will be approximately $40.99
($225,442 ÷ 5,500). The Class Members who do not wish to
participate in the settlement or object thereto must give notice
within 60 days of the Settlement Administrator mailing out Notice
Packets. If 15% or more of the Class Members opt-out of the
settlement, the Defendant may elect to rescind the settlement, such
that the settlement will become null and void.
Any checks to Participating Class Members that are not cancelled
within 180 days from issuance will be deemed void and the
Individual Settlement Amount associated with the uncashed check
will be deposited with the Department of Industrial Relations
Unpaid Wages Fund in California in the name of the Settlement Class
Member or PAGA Claim Member who failed to cash their check.
On Dec. 3, 2018, the Court granted preliminary certification of the
proposed class under Rule 23 and found that Plaintiff had satisfied
Rule 23(a)'s requirements of numerosity, commonality, typicality,
and adequacy of representation and Rule 23(b)(3)'s requirements of
predominance and superiority. Judge Oberto does not revisit its
analysis in this regard because the parties' proposed settlement
class is materially identical to the class that was previously
certified.
The only difference is the Class Period which is extended from the
date of class certification to the date of preliminary approval of
the settlement. Accordingly, Judge Oberto grants conditional
certification of the settlement class as defined by the parties in
the Settlement Agreement, as follows: "All current and former truck
drivers employed by defendant Knight Transportation, Inc., who
advised defendant that they resided in Oregon, Nevada, Arizona,
Utah, and/or Colorado, who were paid in whole or in part on a
piece-rate basis, and who drove one or more routes of five hours or
more entirely within the State of California for defendant during
the 'Class Period' from September 30, 2012 through preliminary
approval" of the settlement
Judge Oberto then concludes that the Plaintiff has made an adequate
showing sufficient to warrant a preliminary finding that the
proposed settlement amount and allocation is fair, reasonable, and
adequate.
The Plaintiff also requests that the Court approves an incentive
payment in an amount of $10,000 to be awarded to Robert Martinez as
the named Plaintiff. Judge Oberto finds that the requested amount
is reasonable and is approved on a preliminary basis.
Judge Oberto also finds that the notice and the manner of notice
proposed by the Plaintiff meets the requirements of Federal Civil
Procedure Rule 23(c)(2)(B) and, considering his updated briefing,
that the proposed mail delivery procedure is appropriate under
these circumstances.
The settlement provides that the class counsel will seek an award
of 25% of the GSA, equivalent to $100,000. This fee amount,
according to Judge Oberto, is consistent with the benchmark rate in
the Ninth Circuit. Accordingly, she approves the attorney's fee
request on a preliminary basis. However, in connection with the
final fairness determination, she will consider any objections as
well as updated lodestar evidence presented by the counsel to
determine whether the fee award of 25% is reasonable.
The parties have agreed to retain Atticus Administration, LLC to
handle the notice and claim administration process. The estimated
cost of administering this settlement is "not to exceed $29,558,"
which will be deducted from the Gross Settlement Amount. Judge
Oberto says this estimate is consistent with, and in some cases
lower than, other settlements submitted to the Court. Accordingly,
she appoints Atticus Administration, LLC as the Settlement
Administrator.
The Settlement Agreement sets forth an implementation schedule that
may be summarized by the following table:
a. Deadline for the Settlement Administrator to send a Notice
Packet to each Class Member - 30 days after preliminary approval of
the settlement
b. Deadline to file a Claim Form, Opt-Out Letter, objection
to the Settlement, or a dispute related to the stated number of
calendar weeks worked during the Settlement Class Period - 60 days
after the initial mailing of the Notice Packet
c. Deadline for Settlement Administrator to provide counsel
with a report listing the number of Class Members and PAGA Claim
Members who received Notice, the number of Settlement Class Members
and PAGA Claim Members, the number of Participating Class Members,
the number and names of those Class Members who submitted opt-out
notices, the total amount of all Individual Settlement Payments to
be made to Settlement Class Members, the total amount of all
Individual PAGA Claim Payments to be made to the PAGA Claim
Members, and the average and maximum Individual Settlement Payments
and Individual PAGA Claim Payments - Seven days after the Response
Deadline
d. Deadline for Defendant to deposit with Settlement
Administrator the Settlement Funds- 30 days after Effective Date,
as defined in the Settlement Agreement
e. Deadline for Settlement Administrator to issue checks to
Class and PAGA claimants - 15 days after the Deposit Date
f. Deadline for recipients to cash Settlement Checks - 180
from the date of mailing
g. Deadline for Class Counsel to provide to the Court a
declaration by the Settlement Administrator of due diligence and
proof of mailing of the Notice Packets - 14 days prior to the final
approval hearing
Judge Oberto approves this schedule and sets the Final Approval
Hearing for Sept. 20, 2023, at 9:30 a.m. in Courtroom 7 (SKO) to
allow adequate time for the foregoing events to take place.
For these reasons, Judge Oberto grants the Plaintiff's renewed
motion for preliminary approval of a class action settlement and
conditional certification of settlement class. The hearing on the
Plaintiff's renewed motion, set for March 29, 2023, is vacated.
The proposed class identified in the Settlement Agreement is
certified for settlement purposes.
For settlement purposes, (i) the Plaintiff's counsel, Craig J.
Ackermann of Ackerman & Tilajef, P.C. and Julian Hammond of
HammondLaw, P.C., are appointed as the class counsel; (ii) Named
Plaintiff Robert Martinez is appointed as the class representative;
and (iii) Atticus Administration, LLC is approved as the settlement
claims administrator.
The proposed notice is approved in accordance with Federal Rule of
Civil Procedure 23.
The proposed settlement is approved on a preliminary basis as fair
and adequate.
The hearing for final approval of the proposed settlement is set
for Sept. 20, 2023, at 9:30 a.m. before Magistrate Judge Sheila K.
Oberto in Courtroom 7, with the motion for final approval of class
action settlement to be filed at least 35 days in advance of the
final approval hearing, in accordance with Local Rule 230(b).
Among other things the parties deem appropriate, the parties are
directed to provide the Court with the information in footnote 9 in
connection with the Plaintiff's motion for final approval of class
action settlement.
The settlement implementation schedule set forth is adopted.
A full-text copy of the Court's March 24, 2023 Order is available
at https://tinyurl.com/bdemrbnv from Leagle.com.
KONING & ASSOCIATES: Willis Loses Class Certification Bid
---------------------------------------------------------
In the class action lawsuit captioned as TROY WILLIS, v. KONING &
ASSOCIATES, et al., Case No. 5:21-cv-00819-BLF (N.D. Cal.), the
Hon. Judge Beth Labson Freeman entered an order denying motion for
class certification:
"all current and former insurance adjusters employed by
Koning & Associates from December 15, 2017 through the date
of the order granting class certification."
The Court concludes Willis has not shown that common questions of
law and fact predominate. Further, Willis has not satisfied the
typicality requirement.
The Court determines that common questions do not predominate as to
misclassification. The Court further determines that Willis has not
satisfied typicality as to this theory of liability. The Court
further notes that the Plaintiff's other claims all rely on a
determination that employees were misclassified as exempt.
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.
The Court determines that common questions do not predominate as to
meal and rest breaks.
Instead, the Court would 1 be required to conduct individualized
inquiries for each class member to determine whether K&A complied
with the meal and rest break laws.
As alleged in the Complaint, the Plaintiff Willis is a former
employee of Koning & Associates, 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 alleges that K&A improperly classified its adjusters
as exempt employees. To be classified as exempt, an employee must
meet the salary basis test.
Koning & Associates is an insurance company that provides general
liability and commercial property solutions.
A copy of the Court's order dated March 15, 2023 is available from
PacerMonitor.com at https://bit.ly/3FIow3y at no extra charge.[CC]
LATITUDE FINANCIAL: Faces Class Suit Over Data Breach Allegations
-----------------------------------------------------------------
Colin Kruger at smh.com.au reports that the growing backlash
against lax corporate cybersecurity in Australia has hit Latitude
Financial with a class action being launched following its recent
hack, while a consumer privacy group slammed the lack of
accountability among Australian businesses over the loss of
sensitive customer data.
Gordon Legal and Hayden Stephens and Associates (HSA) announced
they are investigating potential legal action against Latitude
Financial over recent data breach allegations that the majority of
current and former customers had sensitive data stolen. This
includes the driver's licence numbers of 7.9 million Australian and
New Zealand customers.
"We are investigating how a breach of this size could occur.
Latitude customers deserve to understand their legal rights and the
steps that have been taken to protect their personal data," Gordon
Legal's James Naughton said.
The investigation will examine how the breach occurred, including
the effectiveness of Latitude's security measures, and whether the
consumer finance group took appropriate steps to protect its
customers' personal information.
The federal government also appears to be losing patience after yet
another massive theft of sensitive customer data.
Cybersecurity Minister Clare O'Neil said that the massive volume of
data stolen during the recent cyber incident is deeply concerning.
"This comes after the large-scale loss of identity information
following the Optus and Medibank incidents. The Government shares
the frustration and concern experienced by many citizens who fear
their data may now have been stolen on multiple occasions," she
said.
Digital privacy group Electronic Frontiers Australia (EFA), said
more needed to be done to protect sensitive data.
"People are now at constant risk of identity fraud—and
worse—because organisations collect too much information, keep it
too long, and store it insecurely," said EFA's chair Justin
Warren.
"It's clear that existing privacy protections are ineffective and
must be changed. Organisations have had more than enough time to
take action on their own, and have chosen not to. They must now be
forced to change their ways."
Anti-money laundering and counter-terrorism financing laws require
certain financial service provider to keep customer identification
records for seven years after they have stopped using its
services.
In related news, casino operator Crown Resorts said it was
investigating a cyberattack, but added its customer data had not
been impacted.
Crown said it was one of many organisations that used the
third-party file transfer service, GoAnywhere, which has been hit
by a data breach globally.
"We were recently contacted by a ransomware group who claim they
have illegally obtained a limited number of Crown files. We are
investigating the validity of this claim as a matter of priority,"
Crown said in a statement.
"We can confirm no customer data has been compromised, and our
business operations have not been impacted.
"We are continuing to work with law enforcement and have notified
our gaming regulators as part of the ongoing investigation and will
provide relevant updates, as necessary."
Other Australian companies impacted by the GoAnywhere incident
include Rio Tinto, which said that data on former and current
employees, including payroll details, may have been stolen.[GN]
LLOYD'S OF LONDON: LAL, et al., Seek to Certify Class
-----------------------------------------------------
In the class action lawsuit captioned as LINCOLN ADVENTURES LLC, a
Delaware Limited Liability Company, and MICHIGAN MULTI-KING, INC.,
a Michigan Corporation, on Behalf of Themselves and All Those
Similarly Situated, v. THOSE CERTAIN UNDERWRITERS AT LLOYD'S,
LONDON MEMBERS OF SYNDICATES, et al., Case No.
2:08-cv-00235-CCC-ESK (D.N.J.), the Plaintiffs ask the Court to
enter an order certifying the following class pursuant to Rule
23(b)(3):
"All persons or entities in the United States who purchased
or renewed a contract of insurance with any Lloyd's
Syndicates from January 1, 2002 through February 12, 2016."
The Plaintiffs also move the Court to appoint the Plaintiffs
Lincoln Adventures, LLC and Michigan Multi-King, Inc. as
representatives of the Class.
Additionally, the Plaintiffs move the Court pursuant to Federal
Rules of Civil Procedure 23(c)(1)(B) and 23(g) to confirm Robbins
Geller Rudman & Dowd LLP and Zwerling, Schacter & Zwerling as Class
Counsel.
A copy of the Plaintiffs' motion to certify class dated March 16,
2023 is available from PacerMonitor.com at https://bit.ly/3nvPTHv
at no extra charge.[CC]
The Plaintiffs are represented by:
Rachel L. Jensen, Esq.
Alexandra S. Bernay, Esq.
Steven M. Jodlowski, Esq.
Carmen A. Medici, Esq.
Paul J. Geller, Esq.
ROBBINS GELLER RUDMAN
& DOWD LLP
655 West Broadway, Suite 1900
San Diego, CA 92101
Telephone: (619) 231-1058
Facsimile: (619) 231-7423
- and -
Robert S. Schachter, Esq.
Justin M. Tarshis, Esq.
ZWERLING, SCHACHTER
& ZWERLING, LLP
41 Madison Avenue
New York, NY 10010
Telephone: (212) 223-3900
Facsimile: (212) 371-5969
- and -
Dan Drachler, Esq.
LIEFF CABRASER HEIMANN
& BERNSTEIN, LLP
1904 Third Avenue, Suite 1030
Seattle, WA 98101
Telephone: (206) 895-5005
Facsimile: (206) 895-3131
- and -
Peter S. Pearlman, Esq.
COHN LIFLAND PEARLMAN
HERRMANN & KNOPF LLP
Park 80 West – Plaza One
250 Pehle Avenue, Suite 401
Saddle Brook, NJ 07663
Telephone: (201) 845-9600
Facsimile: (201) 845-9423
- and -
H. Sullivan Bunch, Esq.
BONNETT, FAIRBOURN, FRIEDMAN
& BALINT, P.C.
2325 E. Camelback Road, Suite 300
Phoenix, AZ 85016
Telephone: (602) 274-1100
Facsimile: (602) 274-1199
- and -
Robert M. Foote, Esq.
Kathleen C. Chavez, Esq.
FOOTE, MIELKE, CHAVEZ
& O'NEIL, LLC
10 West State Street, Suite 200
Geneva, IL 60134
Telephone: (630) 232-7450
Facsimile: (630) 232-7452
- and -
Ellen Meriwether, Esq.
CAFFERTY CLOBES MERIWETHER
& SPRENGEL LLP
1101 Market Street, Suite 2650
Philadelphia, PA 19107
Telephone: (215) 864-2800
Facsimile: (215) 864-2810
- and -
David M. Foster, Esq.
DAVID M. FOSTER, P.C.
30833 Northwestern Hwy., Suite 209
Farmington, MI 48334
Telephone: (248) 855-0940
Facsimile: (248) 855-0987
LYFT INC: S.D. New York Certifies Three Classes in Lowell Suit
--------------------------------------------------------------
In the case, HARRIET LOWELL, et al., Plaintiffs v. LYFT, INC.,
Defendant, Case No. 17-CV-06251 (PMH) (S.D.N.Y.), Judge Philip M.
Halpern of the U.S. District Court for the Southern District of New
York:
a. grants in part and denies in part the motion for class
certification filed by Plaintiffs Harriet Lowell and
Westchester Disabled on the Move, Inc. ("WDOMI"); and
b. certifies the three proposed classes.
Before the Court is Magistrate Judge Andrew E. Krause's Dec. 22,
2022, Report and Recommendation recommending that the Court grants
in part and denies in part the motion for class certification filed
by the Plaintiffs and certifies the three proposed classes.
Objections to the Report were due on Jan. 5, 2023. On Dec. 23,
2022, Lyft sought, and the Court granted, an extension of time to
file objections. The Defendant filed its objections on Jan. 19,
2023, and, after an additional extension was granted, the
Plaintiff's response thereto was filed on Feb. 16, 2023. The Court
also permitted the filing of a brief by Amici Curiae, Association
of Programs for Rural Independent Living, the National Council on
Independent Living, Paralyzed Veterans of America, and United
Spinal Association, which was filed on Feb. 23, 2023.
The Defendant challenges Magistrate Judge Krause's findings and
recommendations concerning the Plaintiffs' standing as to their
claims regarding the Non-Access Regions and the Rule 23
requirements for class certification, urging the Court to reject
the Report and enter judgment in its favor based on the Plaintiffs'
failure to establish Article III standing. Underscoring each of the
Defendant's specific objections, as framed by the Defendant, are
two alleged general errors permeating the Report: (1) "accepting
the false equivalence" proffered by the Plaintiffs between access
to a feature in the app with access to transportation; and (2)
presuming that the act of discrimination in this case is the
failure to provide WAV service.
Judge Halpern disagrees with each of the Defendant's depictions of
the Report. As to the first issue, Magistrate Judge Krause did not
conflate access to the app with access to transportation. He simply
recognized that drivers cannot offer WAV services without Defendant
first making that option available in the Non-Access Regions. As to
the second issue, Magistrate Judge Krause clearly identified the
Plaintiffs' allegations of discrimination. The accurate depiction
of the case did not constitute error and is certainly not -- as the
Defendant suggests -- a lone failure to provide WAV service.
Judge Halpern then considers those two claimed errors to the extent
the Defendant has raised them as infecting the more specific
challenged findings and recommendations in the Report.
First, the Defendant objects to Magistrate Judge Krause's legal
analysis and ultimate conclusion concerning the Plaintiffs'
constitutional standing to maintain the action, arguing that the
Plaintiffs failed to satisfy the injury in fact and redressability
requirements of standing.
Judge Halpern finds that WDOMI has sufficiently demonstrated, by a
preponderance of the evidence, its constituents' plausible
intention to use the Defendant's transportation service in the
future. Accordingly, Magistrate Judge Krause's finding that the
Plaintiffs have established an injury in fact is adopted.
Judge Halpern also finds that at least some of the specific relief
requested by the Plaintiffs would be redressed by a favorable
decision. Therefore, Magistrate Judge Krause's recommendation that
the Plaintiffs have established redressability is adopted.
For these reasons, the Plaintiffs have established Article III
standing and the Defendant's request to enter judgment in its favor
for lack of standing is denied.
Having determined that Magistrate Judge Krause correctly found that
the Plaintiffs have constitutional standing to maintain this
action, Judge Halpern rejects the Defendant's contention that the
Report recommends certification of classes that include individuals
who lack constitutional standing. Because he has found that the
Plaintiffs established standing, Judge Halpern holds that that is
enough to confer standing on the entire class.
Although modification of the recommended class definitions is not
warranted for the reasons raised by the Defendant, Judge Halpern
modifies the second and third class definitions to clarify that
WDOMI does not assert claims under the NYSHRL.
Second, the Defendant objects to Magistrate Judge Krause's findings
concerning each of the requirements of Federal Rules of Civil
Procedure 23(a), including the implied requirement of
ascertainability, and 23(b)(2).
Judge Halpern adopts Magistrate Krause's recommendation that the
Plaintiffs have established numerosity, commonality, typicality,
adequacy, and ascertainability. He further adopts Magistrate
Krause's recommendation that the Plaintiffs have satisfied the
requirements of Rule 23(b)(2) with respect to each of their
proposed classes.
Based upon the foregoing, the Defendant's objections to the Report
are overruled, and Judge Halpern adopts the Report in its entirety,
except with the modifications noted below to the recommended class
definitions.
Judge Halpern certifies the following three classes:
a. All residents of or visitors to any and all regions
serviced by Lyft, aside from Lyft's Access Regions or NYC, who
require WAVs for vehicular transportation, and who are denied equal
access to Lyft's transportation services (the Non-Access Region
Class) (represented by Lowell and WDOMI and asserting claims under
the ADA)
b. All residents of or visitors to any and all regions
serviced by Lyft in New York State aside from NYC who require WAVs
for vehicular transportation, and who are denied equal access to
Lyft's transportation services (the New York State Other Than NYC
Class) (represented by Lowell asserting claims under the ADA and
NYSHRL and WDOMI asserting claims under the ADA); and
c. All residents of or visitors to Westchester County who
require WAVs for vehicular transportation, and who are denied equal
access to Lyft's transportation services (the Westchester Class)
represented by Lowell asserting claims under the ADA and NYSHRL and
WDOMI asserting claims under the ADA).
Excluded from the classes are people who (1) have downloaded the
Lyft app; (2) have brought separate litigation against Lyft for its
failure to serve people with disabilities; and/or (3) are residents
of Ohio State University or the University of Texas at Austin who
do not leave those campuses.
Judge Halpern appoints Finkelstein, Blankinship, Frei-Pearson &
Garber, LLP, Morgan & Morgan, P.C., and Michael Hellman of ADA
compliance specialists as the class counsel.
A status conference has been scheduled for April 5, 2023, at 12:30
p.m. to be held by telephone to discuss the filing of revised
pretrial submissions. At the time of the scheduled conference, all
parties will call the following number: (888) 398-2342; access code
3456831.
Judge Halpern grants the request to maintain under seal the
proposed findings of fact and conclusions of law that were filed on
Dec. 7, 2022.
The Clerk of Court is directed to terminate the pending motions
(Doc. 282; Doc. 328; Doc. 357).
A full-text copy of the Court's March 24, 2023 Opinion & Order is
available at https://tinyurl.com/bdz46dn6 from Leagle.com.
MALLINCKRODT PLC: Faces Steamfitters Local Union Suit
------------------------------------------------------
Mallinckrodt PLC 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 in July 2019,
Steamfitters Local Union No. 420 filed a putative class action
lawsuit against the company and United BioSource Corporation in the
U.S. District Court for the Eastern District of Pennsylvania
(EDPA), proceeding as "Steamfitters Local Union No. 420 v.
Mallinckrodt ARD, LLC, et al."
The complaint alleges the violations of Racketeer Influenced and
Corrupt Organizations Act (RICO) under 18 U.S.C. Section 1962(c);
conspiracy to violate RICO under 18 U.S.C. Section 1962(c);
violations of the Pennsylvania (and other states) Unfair Trade
Practices and Consumer Protection laws; negligent
misrepresentation; aiding and abetting/conspiracy and unjust
enrichment. The complaint also seeks declaratory and injunctive
relief.
In December 2019, the court denied the company's motion to dismiss
the complaint, and the matter was stayed during bankruptcy.
Following lifting of the automatic stay of this litigation pursuant
to Section 362 of the Bankruptcy Code and subsequent reopening of
the case in the EDPA, in January 2021, the company moved to
transfer this case to the District of Delaware where the company's
Chapter 11 Cases are pending. Steamfitters Local Union No. 420
opposed transfer. On January 18, 2023, this matter was dismissed by
the company.
Mallinckrodt PLC is a global business of multiple wholly-owned
subsidiaries based in Ireland.
MALLINCKRODT PLC: Marrietta City Suit Dismissed
-----------------------------------------------
Mallinckrodt PLC 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 in February 2020, the
City of Marietta, Georgia filed a putative civil class action
complaint against the company in the U.S. District Court for the
Northern District of Georgia relating to the price of "Acthar Gel,"
a treatment for certain chronic inflammatory or autoimmune
conditions. On February 17, 2023, this matter was dismissed by the
company.
The complaint, which pleads one claim for unjust enrichment,
purports to be brought on behalf of third-party payers and their
beneficiaries as well as people without insurance in the U.S. and
its Territories who paid for Acthar Gel from four years prior to
the filing of the complaint until the date of trial.
The case is proceeding as the "City of Marietta v. Mallinckrodt ARD
LLC." Marietta alleges that it has paid $2.0 million to cover the
cost of an Acthar Gel prescription of an employee and that the
company has been unjustly enriched as a result. The company moved
to dismiss the complaint, which motion was pending when the company
filed the Chapter 11 Cases. On October 16, 2020, the court ordered
the case administratively closed in light of the Chapter 11 Cases.
As a result of the Plan, the litigation was discharged against the
company and the claims thereunder are now the obligation of the
trust established by the Plan for the benefit of allowed general
unsecured claims (GUC Trust). The GUC Trust can settle the claims
as long as there is no agreement to any findings nor any admission
of liability or wrongdoing against the company in the relevant
settlement agreement.
Mallinckrodt PLC is a global business of multiple wholly-owned
subsidiaries based in Ireland.
MARICOPA, AZ: Houston Bid to Certify Class Denied as Moot
----------------------------------------------------------
In the class action lawsuit captioned as Brian Houston, v. County
of Maricopa, et al., Case No. 2:22-cv-00875-SPL-MTM (D. Ariz.), the
Hon. Judge Steven P. Logan entered an order that the Defendants'
motion to dismiss will be granted as to Counts Five and Seven, and
the Court will decline supplemental jurisdiction over the remaining
Counts.
-- Further, because the Plaintiff's federal causes of action
fail as a matter of law and cannot be remedied by
additional factual allegations, the Court will dismiss the
Complaint and this action.
-- The reference to the Magistrate Judge is withdrawn as to
the Defendants' Motion to Dismiss.
-- The Defendants' Motion to Dismiss is granted, and the
action is dismissed without prejudice.
-- The Plaintiff's Motion to Certify Class is denied as moot.
The Plaintiff seeks declaratory, injunctive, and monetary relief,
as well as punitive damages, for injuries allegedly arising from
the publication of his mugshot and other information on the
Maricopa County Sheriff's Office (MCSO) website.
As such, the Plaintiff -- personally and on behalf of a putative
class -- alleged the following claims for relief:
Count One: Invasion of Privacy, False Light, and Violation of
Arizona's Public Records Laws.
Count Two: Violation of Article II, section 8 of the Arizona
Constitution.
Count Three: Negligent, Reckless, and Intentional Infliction of
Emotional Distress.
Count Four: Violation of the Arizona Mugshot Act, Arizona Revised
Statute.
Count Five: Violation of Due Process, under both the Fourteenth
Amendment and the Arizona Constitution.
Count Six: Violation of the Fourteenth Amendment's Equal Protection
Clause; and
Count Seven: Violation of the Sixth Amendment.
A copy of the Court's order dated March 15, 2023 is available from
PacerMonitor.com at https://bit.ly/3nhH2JF at no extra charge.[CC]
MATT MARTORELLO: Duggan Seeks to Impound Class Cert Reply Exhibit
-----------------------------------------------------------------
In the class action lawsuit captioned as DANA DUGGAN, individually
and on behalf of persons similarly situated, v. MATT MARTORELLO AND
EVENTIDE CREDIT ACQUISITIONS, LLC, Case No. 1:18-cv-12277-JGD (D.
Mass.), the Plaintiff asks the Court to enter an order impounding
Exhibit 1 to her Reply in Support of Motion for Class
Certification.
The Defendants have designated the settlement agreement that will
be marked as Exhibit 1 as "Confidential," presumably because it
references sensitive financial information.
When she files her Reply in Support of Motion for Class
Certification, on March 16, 2023, the Plaintiff proposes to file a
placeholder for Exhibit 1 viewable to the public, which will note
that the settlement agreement is being filed under seal. Exhibit 1
will be submitted to the Court under seal upon allowance of this
motion.
According to the terms of the Protective Order, the Defendants will
then have ten days to file a brief in support of maintaining the
confidentiality of the exhibit.
A copy of the Court's order dated March 15, 2023 is available from
PacerMonitor.com at https://bit.ly/3K5xgmY at no extra charge.[CC]
The Plaintiff is represented by:
Michael A. Caddell, Esq.
Cynthia B. Chapman, Esq.
John B. Scofield, Esq.
CADDELL & CHAPMAN
628 East 9th Street
Houston TX 77007-1722
Telephone: (713) 751-0400
Facsimile: (713) 751-0906
E-mail: mac@caddellchapman.com
cbc@caddellchapman.com
jbs@caddellchapman.com
- and -
John Roddy, Esq.
Elizabeth Ryan, Esq.
BAILEY & GLASSER LLP
99 High Street, Suite 304
Boston, MA 02110
Telephone: (617) 439-6730
Facsimile: (617) 951-3954
E-mail: jroddy@baileyglasser.com
eryan@baileyglasser.com
MDL 2913: E-Cigarette Targets Youth Market, Vancouver School Says
-----------------------------------------------------------------
VANCOUVER SCHOOL DISTRICT, on behalf of itself and all others
similarly situated, Plaintiff v. ALTRIA GROUP, INC.; ALTRIA CLIENT
SERVICES; ALTRIA GROUP DISTRIBUTION COMPANY; PHILIP MORRIS USA,
INC.; and JOHN DOES 1-100, inclusive, Defendants, Case No.
3:23-cv-01404 (N.D. Cal., March 24, 2023) is a class action against
the Defendants for public nuisance, negligence, gross negligence,
strict product liability, punitive damages, and violation of the
Racketeer Influenced and Corrupt Organizations Act.
According to the complaint, Juul Labs, Inc., the maker of the JUUL
e-cigarette, and Altria, one of the world's largest producers and
marketers of tobacco products, worked together to implement their
shared goal of growing a youth market in the image of the
combustible cigarette market through a multi-pronged strategy to:
(1) create an highly addictive product that users would not
associate with cigarettes and that would appeal to the lucrative
youth market, (2) deceive the public into thinking the product was
a fun and safe alternative to cigarettes that would also help
smokers quit, (3) actively attract young users through targeted
marketing, and (4) use a variety of tools, including false and
deceptive statements to the public and regulators, to delay
regulation of e-cigarettes.
By working to preserve and expand the market of underage JUUL
customers, fraudulently denying JLI's youth-focused marketing, and
deceiving regulators and the public in order to allow JUUL products
and mint-flavored JUULpods to remain on the market, the JLI
Enterprise caused the expansion of an illicit e-cigarette market
for youth in Plaintiff's schools and caused a large number of youth
in Plaintiff's schools to become addicted to nicotine, thus forcing
Plaintiff to expend time, money, and resources to address the
epidemic Defendants created through their conduct, the suit
asserts.
The Plaintiff, and similarly situated school districts in the State
of Washington, have redirected significant resources to combat
Defendants' alleged deceptive marketing scheme, to educate its
students on the true dangers of Defendants' e-cigarette products
and to prevent the possession and use of Defendants' e-cigarette
products on Plaintiffs' property.
The Vancouver School District case has been consolidated in MDL No.
2913, IN RE: JUUL LABS, INC. MARKETING, SALES PRACTICES, AND
PRODUCTS LIABILITY LITIGATION.
Vancouver School District is a public school district organized and
existing in accordance with the laws of the State of Washington
with its geographic boundaries located in Clark County.
Altria Group, Inc. is a producer of tobacco products, with its
principal place of business in Richmond, Virginia.[BN]
The Plaintiff is represented by:
James Frantz, Esq.
William B. Shinoff, Esq.
Jade S. Koller, Esq.
Kristina Aghazaryan, Esq.
FRANTZ LAW GROUP, APLC
402 W. Broadway, Ste. 860
San Diego, CA 92101
Telephone: (619) 233-5945
Facsimile: (619) 525-7672
E-mail: jpf@frantzlawgroup.com
wshinoff@frantzlawgroup.com
jkoller@frantzlawgroup.com
kaghazaryan@frantzlawgroup.com
MERCEDES-BENZ USA: Faces Suit Over Undisclosed Coolant Seal Defect
------------------------------------------------------------------
STEPHEN SNOWDY, ABRAHAM DEAN LIOU, DELL JONES, KELSEY CLIFFORD,
RICHARD RAMDHANNY, and BRANDON WAISS, individually and on behalf of
all others similarly situated v. MERCEDES-BENZ USA LLC and
MERCEDES-BENZ GROUP AG f/k/a DAIMLER AG, Case No. 3:23-cv-01681
(D.N.J., Mar. 24, 2023) is a lawsuit arising out of a defect that
causes the electric motors in 2014-2017 Mercedes B-Class Electric
Vehicles to degrade and abruptly fail, leaving the vehicle
inoperable.
According to the complaint, every B-Class EV has an Electric Drive
Unit (EDU) consisting of three modules that are integrated and
necessary for the vehicle to operate the motor, the electronics,
and the gearbox. But, the drive shaft seal is defective in that it
fails in its single task -- keeping the coolant away from the EDU
components. Liquid coolant leaks around the drive shaft and into
the EDU where the coolant causes corrosion of the electromechanical
components such as the rotor, the rotor windings, and the bearings
in the motor. This corrosion results in diminishing performance and
eventual catastrophic failure of the EDU. The Degradation of the
EDU as a result of the Coolant Seal Defect results in partial or
total failure of the EDU with little or no warning to the driver.
Once the EDU fails, the Class Vehicles have no more power, just as
if the engine in a common gas-powered vehicle were to fail
completely and suddenly, the suit asserts.
Defendant Mercedes knew of the Coolant Seal Defect even before
Tesla's 2014 SEC filing, because Mercedes had collaborated with
Tesla on its electric motor technologies, including the EDU, since
as early as 2007. Despite their knowledge of the Coolant Seal
Defect before, during and after sales of the Class Vehicles, the
Defendants never once disclosed the defect or the safety risk to
consumers. The Defendants have never offered to repair the Coolant
Seal Defect or otherwise compensate Class Members for their
injuries resulting from the Coolant Seal Defect, says the suit.
As a result of Mercedes' alleged misconduct, the Plaintiffs and
other Class Members were harmed and suffered actual damages in the
form of overpayment for their vehicles, diminished value, repairs
and other expenses and damages related to the undisclosed Coolant
Seal Defect which Defendants have failed to remedy or disclose, and
exposure to undisclosed risks from a product known to the
Defendants to be dangerously unreliable.
In September 2014, Mr. Snowdy bought a new 2014 B-Class EV (VIN
ending 1481) from a Mercedes-authorized dealership, Prestige
Motors, in Paramus, New Jersey for $49,219. The vehicle came with a
Monroney sticker that described the engine and other mechanical
features of the vehicle, which he viewed before purchasing.
Mercedes-Benz is a Mercedes-Benz Group-owned distributor for
passenger cars in the United States, headquartered in Sandy
Springs, Georgia that sells cars from the Mercedes-Benz brand.[BN]
The Plaintiffs are represented by:
James E. Cecchi, Esq.
Caroline F. Bartlett, Esq.
Zachary A. Jacobs, Esq.
CARELLA, BYRNE, CECCHI,
OLSTEIN, BRODY & AGNELLO, P.C.
5 Becker Farm Road
Roseland, NJ 07068
Telephone: (973) 994-1700
E-mail: jcecchi@carellabyrne.com
cbartlett@carellabyrne.com
zjacobs@carellabyrne.com
- and -
Christopher A. Seeger, Esq.
Scott Alan George, Esq.
SEEGER WEISS LLP
55 Challenger Road, 6th Floor
Ridgefield Park, NJ 07660
Telephone: (973) 639-9100
E-mail: cseeger@seegerweiss.com
sgeorge@seegerweiss.com
MICHIGAN: Settlement Claim Forms Submission Due April 14
--------------------------------------------------------
Scott McClallen at The Center Square reports that Michiganders who
believe they were falsely accused of fraud between 2013-15 for
receiving unemployment insurance benefits should know two upcoming
deadlines to join a $20 million class action settlement with the
state of Michigan.
The Michigan Unemployment Insurance Agency blames an old computer
system for wrongly accusing roughly 40,000 people of fraud.
Those interested must submit the registration form that determines
eligibility for an award from the compensation fund by April 5,
2023. They must submit claim forms, opt-outs, and objections to the
settlement by April 14, 2023.
More case deadlines and background to the Bauserman v. Unemployment
Insurance Agency class action lawsuit are posted here.
In January, the Michigan Court of Claims approved a $20 million
class action settlement and established dates for the settlement
process.
The settlement follows a 2015 lawsuit filed on behalf of benefit
claimants who experienced wrongful collection by Michigan after
being erroneously found to have committed fraud through an
auto-adjudication process in connection with receiving unemployment
benefits from Oct. 1, 2013, to Aug. 31, 2015.
"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 statement. "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."
Attorney General Dana Nessel urged residents to join the
settlement.
"I am hopeful that affected Michigan residents will take advantage
of this opportunity to join in the class settlement," said Nessel.
"While this settlement cannot undo the hardships these residents
faced, it does secure the long overdue relief that they deserve."
Eligible claimants may be entitled to an award from the
Compensation Fund for their economic losses and they may also be
eligible for an additional award of compensation for hardships
related to the wrongful collection activity.
Residents can visit UIAClassAction.com, call 1-833-438-5028, or
email info@UIAClassAction.com to find out how to file a claim.
Dale took over the UIA in late 2021, when she started overhauling
the agency via a new computer system, a better claims system, and
better customer service. She's the 11th director in about 10 years.
[GN]
NATIONAL COLLEGIATE: $45K Sanction Awarded to Seaman Against TSI
----------------------------------------------------------------
In the cases, KATHERINE SEAMAN, et al., individually and on behalf
of all others similarly situated, Plaintiffs v. NATIONAL COLLEGIATE
STUDENT LOAN TRUST 2007-2, et al., Defendants. CHRISTINA BIFULCO,
et al., individually and on behalf of all others similarly
situated, Plaintiffs v. NATIONAL COLLEGIATE STUDENT LOAN TRUST
2004-2, et al., Defendants, Case Nos. 18-CV-1781 (PGG) (BCM),
18-CV-7692 (PGG) (BCM) (S.D.N.Y.), Magistrate Judge Barbara Moses
of the U.S. District Court for the Southern District of New York
grants the Plaintiffs' renewed motion for sanctions against
Defendant Transworld Systems, Inc.
Now before the Court is the Plaintiffs' renewed motion for
sanctions against Transworld Systems, Inc. (TSI). They seek $73,280
in attorneys' fees, $168 in costs, an adverse inference order, a
preclusion order, and an order directing that certain facts be
taken as established for purposes of this action, all as sanctions
for TSI's six-month delay in disclosing that a TSI-affiliated
witness suffered a stroke.
During that period, the Plaintiffs incurred unnecessary costs and
the witness' deposition was delayed. However, they ultimately
conducted the deposition in time to use the resulting testimony in
support of their class certification motion.
Beginning in 2019, the Plaintiffs attempted to notice the
deposition of an employee (the Employee) of TSI. The Employee was a
member of TSI's "Affiant Team" who signed affidavits and provided
testimony in debt collection cases brought in state courts around
the nation, including in a state court action against one of the
Plaintiffs named, Sandra Tabar.
On May 18, 2020, TSI's counsel accepted service of a deposition
subpoena for the Employee (the Subpoena) but on May 22, 2020, both
TSI and the Employee -- jointly represented by TSI's counsel --
moved to quash the Subpoena or, in the alternative, for a
protective order requiring that the deposition be conducted on
written questions.
On July 17, 2020, Judge Moses denied the motion, thereby
authorizing the Plaintiffs to proceed with the Employee's
deposition, with certain accommodations. On July 31, 2020, TSI and
the Employee filed timely objections to the 7/17/20 Order, pursuant
to Fed. R. Civ. P. 72(a), but did not seek a stay pending the
resolution of their objections. Thus, from July 17, 2020 onward,
the Employee was obligated to comply with the Subpoena.
On Aug. 3, 2020 -- three days after the objections were filed --
the Employee suffered a "severe medical event," later diagnosed as
a stroke, which caused him to resign his employment with TSI.
However, neither TSI nor the Employee disclosed these facts to the
Plaintiffs, or to the Court, for more than six months. Instead, the
parties continued litigating the pending objections.
The Plaintiffs filed their opposition to the pending objections on
Sept. 2, 2020. TSI and the Employee filed a reply brief on Sept. 9,
2020, but no mention was made of his more recent "severe medical
event." Thereafter, the parties conducted at least some discussions
concerning the scheduling of the remaining depositions, but no date
was fixed for the deposition of the Employee and no updated
disclosure was made concerning his medical condition or employment
status.
On Feb. 16, 2021, the District Judge overruled the objections to
the 7/17/20 Order. Only then did TSI and the Employee, through
their joint counsel, disclose that the Employee had suffered a
stroke and was no longer employed by TSI. On March 26, 2021, the
Employee -- now acting through separate counsel who appeared on his
behalf that day -- filed a second protective order motion, based on
the stroke, again seeking an order requiring that the deposition be
conducted on written questions.
Considering the Employee's new medical challenges, the Plaintiffs
agreed, reluctantly, to conduct his deposition on written questions
pursuant to Fed. R. Civ. P 31. At the same time, they moved for
both monetary and non-monetary sanctions, accusing TSI of delaying
a key witness' deposition for over a year with the purpose and
effect of the Plaintiffs' not ever being able to take the witness'
testimony. TSI denied that charge but acknowledged that its delayed
disclosure of the Employee's stroke and its consequences was
intentional, because those facts were relevant only to the second
protective order motion, which only became necessary after TSI's
objections were overruled by the District Judge on Feb. 16, 2021.
After a discovery conference on April 19, 2021, at which Judge
Moses heard argument on both motions, she granted the second
protective order motion to the extent of requiring that the
Employee's deposition be conducted on written questions, pursuant
to Rule 31, no later than May 19, 2021. She also granted the
Plaintiffs' sanctions motion. In a written order issued on April
23, 2021, Judge Moses specified that sanctions were appropriate
pursuant to Fed. R. Civ. P. 16(f), Fed. R. Civ. P. 37(b)(2)(A), and
28 U.S.C. Section 1927.
However, Judge Moses denied the Plaintiffs' request for preclusion
orders or other non-monetary sanctions, without prejudice to
renewal after their counsel received the Employee's deposition
transcript. The 4/23/21 Order continued, the renewed motion may be
combined with the Plaintiffs' application for the attorneys' fees
and other expenses incurred as a result of the disclosure failure,
which is due at the same time.
On May 7, 2021, TSI objected to the 4/23/21 Order pursuant to Rule
72(a). On May 19, 2021, the Plaintiffs took the Employee's
deposition. On June 3, 2021, the Plaintiffs filed their class
certification motion. By order dated Jan. 18, 2022, the District
Judge agreed that TSI's conduct was sanctionable pursuant to 28
U.S.C. Section 1927, and on that basis overruled, in relevant part,
TSI's objections to the 4/23/21 Order.
On March 29, 2022, plaintiffs filed their renewed motion, seeking a
total of $73,290 in attorneys' fees, representing 123.6 hours of
attorney time by three different lawyers at the firm of Frank LLP,
at rates of $1,400 per hour for senior partner Marvin Frank, $1,100
per hour for partner Gregory Frank, and $500 per hour for associate
Asher Hawkins, plus $168 in expenses.
Additionally, the Plaintiffs seek a variety of non-monetary
sanctions, all premised on the notion that the Employee's testimony
would have been even more helpful to them had they been able to
question him "timely," that is, before his stroke affected his
memory for detail. They also request an order directing that
various facts be taken as established for purposes of the action,
ranging from the very specific to the extremely broad; and a
preclusion order, which would bar TSI from calling the Employee as
a witness or making any arguments to the effect that the Employee
did review proof of the debts alleged before signing his affidavit
in the Tabar case.
TSI filed an opposition brief on April 12, 2022, arguing that no
non-monetary sanctions should be imposed because its only
sanctionable misconduct occurred after the Employee suffered a
stroke. It adds that 28 U.S.C. Section 1927 does not allow for
non-monetary sanctions and that the monetary sanctions requested
are excessive. The Trust Defendants also filed an opposition brief,
pointing out that the broad non-monetary sanctions sought would
have the effect of ending the case not only against TSI, but
against the Trusts, as well.
The Plaintiffs filed their reply brief on April 19, 2022, defending
their requested hourly rates and arguing that the non-monetary
sanctions they seek may be imposed pursuant to the Court's inherent
authority. They concede that TSI did not cause the Employee's
stroke, but argue that it is nonetheless responsible for the
Plaintiffs' inability to take his deposition before he had that
stroke, because it delayed his deposition for more than a year by
serially pressing unsuccessful and baseless motions for an order
blocking the deposition.
Based on the qualifications of the counsel, the nature of the legal
work at issue, the range of rates awarded for comparable work in
this District, and the actual award to Frank LLP in Toohey, Judge
Moses finds that $450 per hour is a reasonable rate for M. Frank;
$375 per hour is a reasonable rate for G. Frank; and $300 per hour
is a reasonable rate for Hawkins. She therefore awards attorneys'
fees as follows: Hawkins $300 (120.2) - $36,060; G. Frank $375
(14.2) - $5,325, and M. Frank $450 (7.8) - $3,510. The Grand Total
is (142.2) - $44,895. In addition, she awards the requested $168 in
expenses, incurred in ordering the transcript of the April 19,
2021, hearing.
Lastly, Judge Moses holds that there is no legal, equitable, or
logical basis on which to grant the Plaintiffs' request for adverse
inference sanctions, preclusion orders, or orders deeming various
facts established.
For the foregoing reasons, the Plaintiffs are awarded $44,895 in
attorneys' fees and $168 in costs, for a total award of $45,063, as
against TSI and its counsel, jointly and severally. The sanction is
to be paid within 30 days of the date of the Memorandum and Order.
A full-text copy of the Court's March 24, 2023 Memorandum & Order
is available at https://tinyurl.com/4krv7c73 from Leagle.com.
NEW YORK, NY: Court Denies Bid to Dismiss Leslie Class Suit v. NYPD
-------------------------------------------------------------------
In the case, SHAKIRA LESLIE and SHAMILL BURGOS on behalf of
themselves and all others similarly situated, Plaintiffs v. CITY OF
NEW YORK; KEECHANT SEWELL, Police Commissioner for the City of New
York, in her official capacity; KENNETH COREY, Chief of Department
for the New York City Police Department, in his official capacity;
JAMES ESSIG, Chief of Detectives for the New York City Police
Department, in his official capacity; EMANUEL KATRANAKIS, Deputy
Chief in the Forensic Investigations Division of the New York City
Police Department, in his official capacity; and DR. JASON GRAHAM,
Acting Chief Medical Examiner for the City of New York, in his
official capacity, Defendants, Case No. 22 Civ. 2305 (NRB)
(S.D.N.Y.), Judge Naomi Reice Buchwald of the U.S. District Court
for the Southern District of New York denies the Defendants' motion
to dismiss the Complaint for lack of subject matter jurisdiction
under Federal Rule of Civil Procedure 12(b)(1).
Named Plaintiffs Leslie and Burgos initiated the lawsuit pursuant
to 42 U.S.C. Section 1983 on behalf of themselves and all others
similarly situated against defendants City of New York, New York
Police Department ("NYPD") Commissioner Keechant Sewell, NYPD Chief
of Department Kenneth Corey, NYPD Chief of Detectives James Essig,
NYPD Deputy Chief of the Detectives Bureau and commanding officer
of NYPD's Forensic Investigations Division Emanuel Katranakis, and
Acting Medical Examiner for NYPD's Office of Chief Medical Examiner
("OCME") Jason Graham. The Plaintiffs seek injunctive and
declaratory relief stemming from the Defendants' alleged violations
of the Fourth Amendment to the United States Constitution and New
York Executive Law Article 49-B.
Since the 1990s, federal and state governments have maintained a
national system to facilitate DNA crime scene comparisons — known
collectively as the Combined DNA Index System ("CODIS") -- which
was created by, and is regulated through, federal and state law.
CODIS is an umbrella system of DNA indexes: the National DNA Index
System ("NDIS"), State DNA Index Systems ("SDIS"), and Local DNA
Index Systems ("LDIS").
Initially enacted in 1994, Article 49-B of the Executive Law
established New York's SDIS, authorized a regulatory structure for
its operation, and provided certain restrictions on the
establishment of DNA laboratories and the collection of New
Yorkers' DNA.
According to the allegations in the Complaint, NYPD officers are
instructed to surreptitiously collect items used by suspects that
are partially consumed and contain DNA, such as cigarettes, chewing
gum, and beverage containers. After DNA samples are collected from
suspects, they are sent to OCME, which analyzes them, creates a DNA
profile of each suspect, and places those profiles in its own
"Known" index (the "Suspect Index"). Once in the Suspect Index, the
NYPD continuously compares each DNA profile to crime scene DNA
samples. An individual's DNA can remain in the Suspect Index for
years, even if charges are dismissed.
The Plaintiffs allege that, unlike the state and federal DNA index
systems described supra, the Suspect Index violates the Fourth
Amendment and New York Executive Law Article 49-B. Specifically,
according to them: (1) the City's practices of taking individuals'
DNA, maintaining their DNA in its Suspect Index, and analyzing
their DNA against crime scene evidence violate the Fourth
Amendment; and (2) Article 49-B precludes localities like the City
from maintaining a DNA index comprised of arrestees and mere
suspects, as opposed to those convicted of felonies and criminal
misdemeanors.
The Plaintiffs filed suit on March 21, 2022, seeking: (1) permanent
injunctive relief preventing defendants from "subjecting plaintiffs
and the putative class to the unconstitutional and unlawful
practices" described in the Complaint, and ordering defendants to
expunge all DNA profiles in the Suspect Index; and (2) a
declaration "that the City's practice of secretly taking, analyzing
and maintaining peoples' DNA in its Suspect Index for comparison
against crime scene evidence constitutes an unreasonable search in
violation of the Fourth Amendment absent a warrant or court order
permitting the search."
After the Plaintiffs filed the Complaint, the NYPD conducted an
"expedited" review of the Plaintiffs' DNA profiles on the direction
of counsel. On May 19, 2022, the NYPD removed the Plaintiffs' DNA
profiles from the Suspect Index because of its "expedited review."
The Defendants assert that, had review of the Plaintiffs' profiles
not been expedited, the NYPD would have reviewed Leslie's profile
in June 2022 and Burgos's profile in January 2023, and both
profiles would have been recommended for removal.
The Defendants filed the instant motion to dismiss the Complaint
for lack of subject matter jurisdiction under Federal Rule of Civil
Procedure 12(b)(1) on July 15, 2022, along with a memorandum in
support and associated declarations and exhibits. According to
them, the Plaintiffs lacked standing when the Complaint was filed,
and even assuming they had standing when they commenced the suit,
their claims are now moot after the Defendants removed their DNA
from the Suspect Index. In the alternative, the Defendants argue
that the Court should not exercise supplemental jurisdiction over
the Plaintiffs' state law claim brought pursuant to N.Y. Executive
Law Article 49-B.
The Plaintiffs opposed and filed a memorandum and declaration on
Aug. 22, 2022 and the Defendants submitted a reply memorandum with
an associated declaration on Sept. 2, 2022. The Court also accepted
an amicus curiae brief from the Policing Project at New York
University School of Law.
In addition, on Jan. 20, 2023, the Court requested that the parties
submit supplemental briefing on whether the doctrine of Pullman
abstention applies to the case. The parties submitted their
respective responses.
The Defendants first seek dismissal of the Complaint on the ground
that the Plaintiffs lack standing under Article III. To satisfy
Article III standing, a plaintiff bears the burden of establishing:
(1) that she has suffered an injury in fact -- an invasion of a
legally protected interest which is (a) concrete and particularized
and (b) actual or imminent, not conjectural or hypothetical; (2) a
causal connection between the injury and the conduct complained of;
and (3) a likelihood that the injury will be redressed by a
favorable decision.
Judge Buchwald concludes that the Plaintiffs have met their burden
on each of the three necessary elements. First, the Plaintiffs have
established an injury in fact because their DNA was included in the
Suspect Index, where, as alleged, it was being compared against
crime scene evidence. Second, the Plaintiffs' injury is traceable
to the Defendants' conduct. Last, the Plaintiffs' injury is
redressable by the Court.
The Defendants next argue that the case has been mooted by their
post-filing removal of the named Plaintiffs' DNA from the Suspect
Index, which was done "on the direction of counsel." The Plaintiffs
dispute the Defendants' position because of two exceptions to the
mootness doctrine: the "inherently transitory" exception and the
"voluntary cessation" exception.
Judge Buchwald agrees with the Plaintiffs and concludes that the
Defendants' post-filing actions did not moot the Plaintiffs' claims
and instead triggered both exceptions. As the Plaintiffs' claims on
behalf of the purported class are inherently transitory, the
exception to the mootness doctrine is met. And, the Defendants
cannot meet the "very heavy burden" required to establish that
their voluntary removal of the Plaintiffs' DNA from the Suspect
Index moots the case.
In sum, the Plaintiffs meet both the "inherently transitory" and
"voluntary cessation" exceptions to the mootness doctrine. Because
the Plaintiffs have also established standing, the Defendants'
12(b)(1) motion must be denied.
Judge Buchwald then turns to the remaining issues: whether the
Court should abstain from this action entirely, and whether she
should decline to exercise supplemental jurisdiction over the
Plaintiffs' state law claim under Article 49-B. After evaluating
the parties' supplemental briefing on that question and the
applicable case law, she concludes that the criteria for abstention
are not met. It is inappropriate at this time to decide whether the
Court must (or should) exercise supplemental jurisdiction over the
Plaintiffs' state law claim. Accordingly, Pullman abstention is not
warranted in the case.
The Defendants argue that the Court should not exercise
supplemental jurisdiction over the Plaintiffs' state law claim
under Article 49-B because the Plaintiffs' state law claim is not
closely related to their Fourth Amendment claim, and the claim
raises a novel or complex issue of State law.
Judge Buchwald notes that the Plaintiffs' Fourth Amendment claims
are analytically independent of the statutory claim. Moreover, the
resolution of the Fourth Amendment claims may impact the contours
of the statutory claim. Accordingly, she reserves decision on the
Defendants' argument that she should decline to exercise
supplemental jurisdiction over the Plaintiffs' state law claim
under Article 49-B.
For the foregoing reasons, the Defendants' motion to dismiss is
denied. The Clerk of Court is directed to terminate the motion
pending at ECF No. 45.
A full-text copy of the Court's March 24, 2023 Corrected Memorandum
& Order is available at https://tinyurl.com/56h4emwc from
Leagle.com.
NORFOLK SOUTHERN: Team Ohio Seeks Appointment as Class Counsel
--------------------------------------------------------------
In the class action lawsuit captioned as HAROLD R. FEEZLE, SUSAN E.
SCHEUFELE, DAVID J. SCHEUFELE, ROLLERENA AUTO SALES, LLC, and
MARILYN FIGLEY, on behalf of themselves and all others similarly
situated, v. NORFOLK SOUTHERN RAILWAY CO., and NORFOLK SOUTHERN
CORP., Case No. 4:23-cv-00242-BYP (N.D. Ohio), Team Ohio requests
the Court to appoint them to lead this local suit matter.
Pursuant to Fed. R. Civ. P. 23(g)(3), and in response to this
Court's March 8, 2023 order, the Plaintiffs in Feezle and the other
cases related to the February 3, 2023 Norfolk Southern train
derailment in East Palestine, Ohio pending before this Court file
this motion and memorandum in support regarding appointment of
interim class counsel and a the Plaintiffs' leadership structure.
Considering the sprawling and complex nature of this litigation,
the Plaintiffs believe that appointment of interim class counsel
and the leadership structure proposed below will best enable the
parties -- both the Plaintiffs and the Defendants -- to move
forward with this litigation in the most expeditious manner
possible.
The February 3, 2023 disaster has distracted the East Palestine
community from counting its many, many blessings. But that will
again be its custom. It is Team Ohio's calling to bring a remedy to
East Palestine and the surrounding communities and put in the
rearview the fiery train derailment and the unforgettable dark
toxic mushroom cloud blooming during the "controlled release."
Community members have placed signs that read: "We are East
Palestine. Get ready for the Greatest Comeback in American
history." Team Ohio too is ready, willing, experienced, and
dedicated to being a part of East Palestine's historic comeback.
The Feezle case was the first lawsuit filed following the East
Palestine derailment. It was filed on February 7 by Shapero &
Roloff and Amato Law Office in consultation with lawyers from
Simmons Hanly Conroy. Jayne Conroy and other members of her firm
appeared in the first amended complaint (filed on February 20)
after being admitted pro hac vice.
The February 3, 2023 Norfolk Southern train derailment and
"controlled release" of toxic vinyl chloride and other chemicals in
East Palestine, Ohio, is a uniquely local disaster. Had the train
jumped the tracks seconds earlier—before the James Street or
Market Street crossings -- the main thoroughfares of East Palestine
would have gone up in flames. As it was, East Palestine residents
were forcibly evacuated from their homes and businesses.
Norfolk is a Class I freight railroad operating in the Eastern
United States.
A copy of the the Plaintiff's motion dated March 15, 2023 is
available from PacerMonitor.com at https://bit.ly/3FMaWvV at no
extra charge.[CC]
The Plaintiffs are represented by:
Kristen A. Johnson, Esq.
Steve W. Berman, Esq.
Sean R. Matt, Esq.
Whitney K. Siehl, Esq.
HAGENS BERMAN SOBOL SHAPIRO LLP
1 Faneuil Hall Sq., 5th Floor
Boston, MA 02109
Telephone: (617) 482-3700
Facsimile: (617) 482-3003
E-mail: kristenj@hbsslaw.com
steve@hbsslaw.com
sean@hbsslaw.com
whitneys@hbsslaw.com
- and -
Ron R. Parry, Esq.
STRAUSS TROY
150 E 4th Street #4
Cincinnati, OH 45202
Telephone: (513) 621-2120
E-mail: rrparry@strausstroy.com
- and -
Nils P. Johnson, Jr., Esq.
Nils Peter Johnson, Esq.
JOHNSON & JOHNSON LAW OFFICE
12 West Main Street
Canfield, OH 44406
Telephone: (330) 533-1921
E-mail: NilsPeter@JandJOhio.com
- and -
Jeffrey S. Goldenberg, Esq.
Todd Naylor, Esq.
GOLDENBERG SCHNEIDER, LPA
4445 Lake Forest Drive, Suite 490
Cincinnati, OH 45242
Telephone: (513) 345-8291
Facsimile: (513) 345-8294
E-mail: jgoldenberg@gs-legal.com
tnaylor@gs-legal.com
- and -
Calvin C. Fayard, Jr., Esq.
D. Blayne Honeycutt, Esq.
FAYARD & HONEYCUTT APC
519 Florida Ave SW
Denham Springs, LA 70726
Telephone: (225) 664-0304
E-mail: dbhoneycutt@fayardlaw.com
- and -
Terence R. Coates, Esq.
MARKOVITS, STOCK & DEMARCO, LLC
119 E Court Street, Suite 530
Cincinnati, OH 45202
Telephone: (513) 651-3700
Facsimile: (513) 665-0219
E-mail: tcoates@msdlegal.com
- and -
Mark Bryant, Esq.
THE BRYANT LAW CENTER
601 Washington Street
Paducah, Kentucky 42003
Telephone: (270) 908-0995
E-mail: mark.bryant@bryantpsc.com
- and -
Elizabeth A. Bernard
ELIZABETH A. BERNARD LLC
4137 Boardman-Canfield Road, Suite 105A
Canfield, OH 44406
Telephone: (330) 286-0474
Facsimile: (330) 286-0477
NOVAVAX INC: Sinnathurai, et al., Seek to Certify Class Action
--------------------------------------------------------------
In the class action lawsuit captioned as SOTHINATHAN SINNATHURAI,
Individually and on Behalf of All Others Similarly Situated, v.
NOVAVAX, INC., STANLEY C. ERCK, GREGORY F. COVINO, JOHN J.
TRIZZINO, and GREGORY GLENN, Case No. 8:21-cv-02910-TDC (D.Md.),
the Lead Plaintiffs Jeffrey Gabbert, Nuggehalli Balmukund
Nandkumar, and David Truong move the Court for an Order:
1. certifying this action as a class action pursuant to
Federal Rules of Civil Procedure 23(a) and 23(b)(3);
2. appointing the Plaintiffs as class representatives
pursuant to Rules 23(a) and 23(b)(3); and
3. appointing Lead Counsel Labaton Sucharow LLP and Pomerantz
LLP as Class Counsel pursuant to Rule 23(g).
Novavax is an American biotechnology company that develops vaccines
to counter serious infectious diseases.
A copy of the Plaintiffs' motion dated March 16, 2023 is available
from PacerMonitor.com at https://bit.ly/3FZQZ4G at no extra
charge.[CC]
The Plaintiffs are represented by:
Jeremy A. Lieberman, Esq.
Brian Calandra, Esq.
POMERANTZ LLP
600 Third Avenue, 20th Floor
New York, NY 10016
Telephone: (212) 661-1100
Facsimile: (917) 463-1044
E-mail: jalieberman@pomlaw.com
bcalandra@pomlaw.com
- and -
James W. Johnson, Esq.
Michael H. Rogers, Esq.
David J. Schwartz, Esq.
James T. Christie, Esq.
LABATON SUCHAROW LLP
140 Broadway
New York, NY 10005
Telephone: (212) 907-0700
Facsimile: (212) 818-0477
E-mail: jjohnson@labaton.com
mrogers@labaton.com
dschwartz@labaton.com
jchristie@labaton.com
- and -
Steven J. Toll, Esq.
Daniel S. Sommers, Esq.
S. Douglas Bunch, Esq.
COHEN MILSTEIN SELLERS &
TOLL PLLC
1100 New York Avenue N.W.
Suite 500, East Tower
Washington, DC 20005
Telephone: (202) 408-4600
Facsimile: (202) 408-4699
E-mail: stoll@cohenmilstein.com
dsommers@cohenmilstein.com
dbunch@cohenmilstein.com
- and -
Lesley F. Portnoy, Esq.
PORTNOY LAW FIRM
1800 Century Park East, Suite 600
Los Angeles, CA 90067
Telephone: (310) 692-8883
E-mail: esley@portnoylaw.com
ONLY NATURAL: Tice Sues Lomacchios for Misappropriation of Assets
-----------------------------------------------------------------
LOREN TICE, AS THE TRUSTEE OF THE RYAN LOMACCHIO TRUST CREATED
UNDER THE TERMS OF THE LAST WILL AND TESTAMENT OF ROBERT LOMACCHIO,
individually and on behalf of Only Natural Corporation, and all
other shareholders similarly situated, Plaintiff v. THOMASINA
LOMACCHIO, AND ANGELO LOMACCHIO, Defendants, Case No. 604933/2023
(N.Y. Sup., Nassau Cty., March 24, 2023) is brought by the
Plaintiff as a shareholder of Only Natural Inc., on behalf of
herself and all other shareholders of the Corporation, similarly
situated and in the right of the Corporation, arising from the
Defendants' violation of the New York Business Corporation Law.
Angelo Lomacchio was and is a director and president of Only
Natural Inc., and Thomasina LoMacchio was and is a director, and
Treasurer of the Corporation.
According to the complaint, Thomasina Lomacchio wrongfully,
illegally, and feloniously defrauded, embezzled and stole funds of
the Corporation by wrongfully issuing Corporation checks/debits/ACH
transfers to American Express and to third parties to pay bills not
for corporate purpose in excess of $500,000, with the exact amount
to be determined at trial. The damages sustained by the plaintiff
are as a result of the misappropriation of the Corporation's assets
by defendant Thomasina LoMacchio were aided and abetted by Angelo
LoMacchio's negligence, asserts the complaint.
The negligence of defendant Angelo LoMacchio arose from his
carelessly not supervising and reviewing the use of corporate funds
for non-corporate purposes which Angelo knew or in the exercise of
due care should have known that they were not in the furtherance of
the corporate purposes of the Corporation, and that there was no
reason for such checks, or other expenditures by the Corporation,
and the failure of Angelo LoMacchio to require financial statements
be issued to the shareholders and the Board of Directors of the
Corporation by defendant Thomasina LoMacchio, says the suit.
As a result of the Defendants' alleged conduct, Plaintiff has
sustained damages in excess of $500,000 by virtue of the actions of
Thomasina Lomacchio.
Only Natural Inc. is a duly formed New York State corporation with
a principal place of business in the County of Nassau.[BN]
The Plaintiff is represented by:
Steven W. Stutman, Esq.
STEVEN W. STUTMAN, PLLC
535 Broadhollow Road Suite B52
Melville, NY 11747
Telephone: (631) 393-6001
OUTDOOR GEAR: All Class Cert Discovery Must be Completed by Oct. 15
-------------------------------------------------------------------
In the class action lawsuit captioned as Robert Weekes
Individually, and On Behalf of All Others Similarly Situated v. The
Outdoor Gear Exchange, Inc., Case No. 1:22-cv-01283-ER (S.D.N.Y.),
the Hon. Judge Edgardo Ramo entered a civil case discovery plan and
scheduling order as follows:
-- Joinder of additional parties must be accomplished by
April 14, 2023.
-- Amended pleadings may be filed until April 14, 2023.
-- Interrogatories shall be served no later than April 28,
2023 and responses thereto shall be served within 30 days
thereafter.
-- First request for production of documents, if any, shall be
served no later than April 28, 2023.
-- Non-expert depositions shall be completed by August 30,
2023.
-- Any further interrogatories, including expert
interrogatories, shall be served no later than September
15, 2023.
-- Requests to Admit, if any, shall be served no later than
April 28, 2023.
-- Expert reports shall be served no later than August 30,
2023.
-- Rebuttal expert reports shall be served no later than
September 15, 2023.
-- Expert depositions shall be completed by September 29,
2023.
-- All discovery shall be completed by October 15, 2023.
-- Any motions shall be filed in accordance with the Court's
Individual Practices.
-- This Civil Case Discovery Plan and Scheduling Order may not
be changed without leave of Court (or the assigned
Magistrate Judge acting under a specific order of
reference).
-- The Magistrate Judge assigned to this case is the Hon.
James L. Cott.
Outdoor Gear Exchange is a retail company that provides camping
gear, alpine, and backcountry skis.
A copy of the Court's order dated March 15, 2023 is available from
PacerMonitor.com at https://bit.ly/3ZhpUAN at no extra charge.[CC]
P.C. RICHARD: Douglass Suit Wins Rule 23 Class Certification
------------------------------------------------------------
In the class action lawsuit captioned as BLAIR DOUGLASS, on behalf
of himself and all others similarly situated, v. P.C. RICHARD &
SON, LLC, Case No. 2:22-cv-00399-MPK (W.D. Pa.), the Hon. Judge
Maureen P. Kelly entered an order granting the Plaintiff's motion
to certify class for settlement purposes and for preliminary
approval of class action settlement.
-- The proposed Settlement Class is preliminarily certified
pursuant to Fed. R. Civ. P. 23(a) and (b)(2) for purposes
of settlement.
-- The Settlement Class is defined as:
"A national class of individuals who are Blind and/or who
have a Visual Disability and who use Appropriate Auxiliary
Aids and Services to navigate digital content and who have
accessed, attempted to access, or been deterred from
attempting to access, or who will access, attempt to
access, or be deterred from attempting to access,
[https://www.pcrichard.com/] from the United States."
-- The Court finds that Plaintiff Blair Douglass will fairly
and adequately protect the interests of the Settlement
Class. As a result, the Court appoints and designates Mr.
Douglass as representative of the Settlement Class.
-- The Court finds that attorneys Kevin Tucker, Kevin
Abramowicz, Chandler Steiger, and Stephanie Moore of East
End Trial Group LLC are experienced and competent counsel
who will continue to fairly and adequately protect the
interests of the Settlement Class. As a result, the Court
appoints and designates attorneys Tucker, Abramowicz,
Steiger, and Moore as Class Counsel for the Settlement
Class.
P.C. Richard is a chain of private, family-owned appliance,
television, electronics, and mattress stores in the United States.
A copy of the Court's order dated March 16, 2023 is available from
PacerMonitor.com at https://bit.ly/3Kgglhl at no extra charge.[CC]
PAYWARD INC: Singh Sues Over Illegal Collection of Biometrics
-------------------------------------------------------------
Jatinder Singh and Sandeep Singh, Individually and on behalf of all
others similarly situated v. Payward, Inc. d/b/a Kraken, Case No.
3:23-cv-01435-SK (N.D. Cal., Mar. 27, 2023) seeks to redress and
curtail the Defendant's unlawful collections, obtainments, use,
storage, and disclosure of Plaintiffs' sensitive and proprietary
biometric identifiers and/or biometric information, in violation of
the Illinois Biometric Information Privacy Act.
According to the complaint, Kraken has created, collected, and
stored thousands of "face templates" -- highly detailed geometric
maps of the face -- from countless Illinois residents whose selfies
and state-issued ID's were collected by Kraken. Each face template
that Kraken extracts is unique to a particular individual in the
same way that a fingerprint or voiceprint uniquely identifies one,
and only one, person. Kraken had no written policy, made available
to the public, establishing a retention schedule and guidelines for
permanently destroying biometric information when the initial
purpose for collecting or obtaining such biometric information has
been satisfied or within 3 years of the individual's last
interaction with Kraken, whichever occurs first, says the suit.
Moreover, Kraken made no mention of biometric information,
collection of biometric information, or storage of biometric
information. Kraken collected, stored, and used Plaintiffs'
biometric information without ever receiving a written release
executed by the Plaintiffs which would consent to or authorize
Kraken to do the same. Kraken has sold, leased, traded, or
otherwise profited from Plaintiffs' biometric information, the suit
claims.
The Plaintiffs each opened Kraken accounts within the five years
immediately preceding the filing of this action. As part of signing
up, and/or gaining access to their Kraken accounts, the Plaintiffs
were required to upload a picture of (1) a valid state-issued
identification; and (2) a real time portrait of their face, i.e. a
"selfie."
Payward operates as an online, "app-based" platform wherein
individuals can trade "crypto-currencies", crypto-currency
derivatives, and other virtual commodities.[BN]
The Plaintiffs are represented by:
Leah M. Beligan, Esq.
Jerusalem F. Beligan, Esq.
BELIGAN LAW GROUP, LLP
19800 MacArthur Blvd., Ste. 300
Newport Beach, CA 92612
Telephone: (949) 224-3881
E-mail: lmbeligan@bbclawyers.net
jbeligan@bbclawyers.net
- and -
James L. Simon, Esq.
SIMON LAW CO.
5000 Rockside Road
Liberty Plaza – Suite 520
Independence, OH 44131
Telephone: (216) 816-8696
E-mail: james@simonsayspay.com
- and -
Michael L. Fradin, Esq.
FRADIN LAW
8401 Crawford Ave., Ste. 104
Skokie, IL 60076
Telephone: (847) 986-5889
E-mail: mike@fradinlaw.com
ROCKWELL COLLINS: Bid to Remand Alvarado Suit to State Court Denied
-------------------------------------------------------------------
In the case, Israel Alvarado v. Rockwell Collins, Inc., et al.,
Case No. CV 23-400-JFW (JCx) (C.D. Cal.), Judge John F. Walter of
the U.S. District Court for the Central District of California
denies the Plaintiff's Motion to Remand Case to State Court.
On Feb. 17, 2023, Alvarado filed a Motion to Remand Case to State
Court. On Feb. 27, 2023, Defendants Rockwell Collins, Inc. ("RCI"),
Aeronautical Radio, Inc., ARINC Inc. ("ARINC"), and Raytheon (CA)
Technologies Corp. filed their Opposition. On March 6, 2023, the
Plaintiff filed a Reply. Judge Walter found the matter appropriate
for submission on the papers without oral argument. The matter was,
therefore, removed from the Court's March 20, 2023, hearing
calendar and the parties were given advance notice.
According to the Complaint, the Plaintiff was a non-exempt employee
of Defendants in the State of California from approximately April
2003 to September 2021.
On Oct. 29, 2022, he, on behalf of himself and all persons
similarly situated, filed a Complaint against the Defendants in Los
Angeles Superior Court, alleging one cause of action for unlawful
business practices in violation of California Business &
Professions Code Sections 17200, et seq., predicated on violations
of the California Labor Code including: (1) the failure to pay
minimum and overtime wages based on off-the-clock work and because
of rounding; (2) failure to pay minimum wages and overtime wages at
the regular rate of pay; (3) failure to provide off-duty meal and
rest periods and to pay meal and rest period premiums; (4) failure
to reimburse business expenses; (5) failure to provide accurate
wage statements; (6) failure to pay sick time at the regular rate
of pay; and (7) failure to pay wages due at the time of
separation.
On Jan. 18, 2023, Removing Defendants RCI and ARINC removed the
action, alleging that the Court has jurisdiction pursuant to 28
U.S.C. Section 1332(d), the Class Action Fairness Act of 2005
("CAFA"). In support of their Notice of Removal, the Defendants
estimated that the aggregate value of all matters in controversy
amounted to more than $16 million, even under very conservative
violation rates.
In his Motion, the Plaintiff argues that the Defendants have failed
to prove by a preponderance of the evidence that the amount in
controversy exceeds the $5 million necessary for CAFA jurisdiction.
The Defendants contend that the evidence satisfies the amount in
controversy requirement. In support of their Opposition, they
provided supplemental evidence, to further substantiate the amount
in controversy. The Plaintiff takes issue with the Defendants'
estimate, claiming that is based on unsupported and unreasonable
assumptions.
Judge Walter has considered the moving, opposing, and reply papers
and disagrees. He says the Defendants' estimates are premised on
reasonable assumptions. For instance, with respect to their wage
statement penalty calculations, the Defendants presumed a 100%
violation rate. This presumption, according to Judge Walter, is
reasonable given that the Plaintiff alleges that the wage
statements failed to identify the accurate total hours worked each
pay period and considering the other violations alleged in the
Complaint.
For these reasons, the Plaintiff's Motion to Remand Case to State
Court is denied.
A full-text copy of the Court's March 24, 2023 Order is available
at https://tinyurl.com/ybwsy4kh from Leagle.com.
ROMULUS INC: Fails to Pay Minimum Wages Under FLSA, Swonger Says
----------------------------------------------------------------
MAKAYLA SWONGER, on behalf of herself and all others similarly
situated v. ROMULUS, INC., and RMLS HOP OHIO, LLC, Case No.
2:23-cv-01049-JLG-CMV (S.D. Ohio, Mar. 24, 2023) seeks to recover
unpaid minimum wage pursuant to the Fair Labor Standards Act and
the Ohio law.
According to the complaint, the Defendants maintain a policy and
practice whereby servers are required, during their regular shifts,
to perform non-tip producing "side work" unrelated to the servers'
tipped occupation, as well as non-tip producing side work related
to the servers' tipped occupation. While the Representative
Plaintiff, the Putative Collective Members, and the Ohio Class
Members were performing non-tip producing side work, the Defendants
continued to pay Representative Plaintiff, the Putative Collective
Members, and the Ohio Class Members less than minimum wage and
relied on the tip credit to meet the Defendants' obligation to pay
the Representative Plaintiff, the Putative Collective Members, and
the Ohio Class Members minimum wage, says the suit.
The Defendants were not eligible to avail themselves of the tipped
minimum wage rate under the FLSA, because the Defendants required
Representative Plaintiff and the Putative Collective Members to
perform a substantial amount of dual job duties and side work.
During these periods, the Defendants compensated the Representative
Plaintiff and the Putative Collective Members at the tipped minimum
wage rate rather than at the full hourly minimum wage rate as
required by the FLSA, the suit further asserts.
The Plaintiff was employed as a server at Defendants' Heath, Ohio
location, within the last three years.
Romulus owns and operates IHOP restaurants in Arizona, Idaho,
Oklahoma, Kansas, Texas, New Mexico, Indiana, Illinois, Tennessee,
and Ohio.[BN]
The Plaintiff is represented by:
Robi J. Baishnab, Esq.
Jeffrey J. Moyle, Esq.
NILGES DRAHER LLC
1360 East 9th Street, Ste. 808
Cleveland, OH 44114
Telephone: (216) 230-2944
Facsimile: (330) 754-1430
E-mail: rbaishnab@ohlaborlaw.com
jmoyle@ohlaborlaw.com
SALVATION ARMY: Loses Bid to Junk Geiser Suit
---------------------------------------------
In the class action lawsuit captioned as ROBERT GEISER, et al., on
behalf of themselves and all others similarly situated, v. THE
SALVATION ARMY, Case No. 1:22-cv-01968-JMF (S.D.N.Y.), the Hon.
Judge Jesse M. Furman entered an order denying the Defendant's
motion to dismiss for failure to state a claim.
The Court said, "The Defendant shall answer the Second Amended
Complaint within 14 days in accordance with Rule 12(a)(4)(A) of the
Federal Rules of Civil Procedure.
Salvation Army, an international movement, is an evangelical part
of the universal Christian Church.
A copy of the Court's order dated March 15, 2023 is available from
PacerMonitor.com at https://bit.ly/40cezDo at no extra charge.[CC]
SHAMROCK CABINET: Brandon, et al., Seek Approval of Settlement Deal
-------------------------------------------------------------------
In the class action lawsuit captioned as MICHAEL BRANDON MILLETT,
WILLIAM MORGAN, and BRANDON MENDOZA, on behalf of themselves
individually and all other similarly situated employees, v
.SHAMROCK CABINET & FIXTURE CORPORATION, Case No. 4:21-cv-00635-GAF
(W.D. Mo.), request that the Court issue the following relief in
whole and without delay:
(a) approval of the Settlement Agreement that will be
provided in supplemental briefing;
(b) certification and approval of the Rule 23 Class;
(c) certification and approval of the Fair Labor Standards
Act (FLSA) Class; and
(d) approval of the notices of settlement that will be
provided in supplemental briefing in advance of the April
27, 2023 hearing.
In the underlying action, which the Plaintiffs initiated on
September 2, 2021, the Plaintiffs allege, in part, that the
Defendant violated the FLSA and Missouri's Minimum Wage Law
("MMWL") by failing to properly compensate its hourly, non-exempt
employees for their hours worked, by failing to pay them minimum
wage, and by failing to properly pay them overtime wages.
Specifically, the Plaintiffs contend that the Defendant:
(a) improperly rounded their time worked in a manner that
systematically under-counted the employees' actual time
worked; and
(b) improperly deducted a 30-minute meal break from each
shift, regardless of whether the break in question lasted
for 30 minutes, and even when the employee did not take a
meal break.
The Plaintiffs seek to represent a collective of alleged similarly
situated individuals pursuant to Section 216(b) of the FLSA. They
also seek to represent these same individuals with respect to the
MMWL claim asserted in the Complaint pursuant to Fed. R. Civ. P.
23.
The Rule 23 Class and FLSA Collective include the Defendants'
nonexempt employees employed by the Defendant between
September 2, 2018 and March 29, 2022.
The main terms of the Settlement Agreement are as follows:
-- Gross Settlement Amount of $1,250,000.00 for 201 class
members
-- Net Settlement Fund (to distribute to class members) of
$875,000.00
-- Attorneys' Fees and Expenses, including the costs of
administration, of $375,000.00
-- $125.00 will be paid automatically to each of the Rule 23
Class members (201 individuals) without the need to file a
claim or opt-into participation in the settlement in
exchange for a release of the Plaintiffs' claim under the
Missouri Minimum Wage Law.
In recognition of the service contributions of the Plaintiffs, they
seek service awards of $10,000 for the Plaintiff Brandon Millett
and $5,000 each for the Plaintiffs Brandon Mendoza and
William Morgan.
The remaining funds in the Net Settlement Fund ($829,875.00) will
be distributed in two payments, six months apart, to the class
members who opt to file a straightforward claim to effectuate a
release of FLSA claims. Only such claimants will release FLSA
claims.
Shamrock Cabinet manufactures wooden home and commercial furniture.
A copy of the the Plaintiffs' motion dated March 15, 2023 is
available from PacerMonitor.com at https://bit.ly/3neuuCI at no
extra charge.[CC]
The Plaintiffs are represented by:
Kevin A. Todd, Esq.
Brad K. Thoenen, Esq.
John J. Ziegelmeyer III, Esq.
HKM EMPLOYMENT ATTORNEYS LLP
1501 Westport Road
Kansas City, MO 64111
Telephone: (816) 875-9339
E-mail: bthoenen@hkm.com
jziegelmeyer@hkm.com
ktodd@hkm.com
SHANGHAI CAFE: Chen Is Entitled to Default Judgment, Court Says
---------------------------------------------------------------
In the case, CINDY CHEN, on behalf of herself and all others
similarly situated, Plaintiffs v. SHANGHAI CAFE DELUXE, INC. d/b/a
Shanghai Cafe; YILI WENG, PING LIN, and XINSHENG GU, Defendants,
Case No. 17-cv-2536 (VF) (S.D.N.Y.), Magistrate Judge Valerie
Figueredo of the U.S. District Court for the Southern District of
New York grants Chen's motion for default judgment.
Chen brought the age-discrimination action on behalf of herself and
others similarly situated against Defendants Shanghai Cafe, Yili
Weng, Ping Lin, and Xinsheng Gu. Chen alleges that the Defendants
unlawfully terminated her employment, because of her age, in
violation of the Age Discrimination in Employment Act ("ADEA"), 29
U.S.C. Section 621 et seq., the New York State Human Rights Law,
N.Y. Exec. L. Section 290, et seq. ("NYSHRL"), and the New York
City Human Rights Law, N.Y.C. Admin. Code, Section 8-101 et seq.
("NYCHRL").
Chen, a 54-year-old woman, was employed by Shanghai Cafe as a
waitress from April 15, 2012, to Jan. 26, 2016. Shanghai Cafe is a
New York State corporation, with 20 or more employees, located at
100 Mott Street in New York, New York. It is a restaurant that is
"engaged in interstate commerce" with gross sales exceeding
$500,000 per year. Throughout the relevant period, the owners and
operators of Shanghai Cafe -- individual defendants Weng, Lin, and
Gu -- supervised Chen and had the power to hire and fire employees
of the restaurant.
Chen was on vacation in China between Jan. 26, 2016, and March 8,
2016. Upon her return to the United States, she contacted Weng to
let her know that she was ready to return to work. On March 12,
2016, another employee of the restaurant (also named Chen) called
Chen to tell her that Weng, Lin, and Gu decided they only wanted
young waitresses, and that Chen would not be able to return to
work.
The following day, March 13, Chen called the restaurant to ask if
she had been added back to the work schedule. Weng told her that
she was "busy" and would call her back that night. Weng did not
call Chen back. Chen was later told by another waitress at Shanghai
Cafe that Ling and Gu had said they "only want young waitstaff. On
March 14, 2016, Chen was told by Weng that her employment was
terminated.
Chen filed her complaint, which she characterized as a putative
class action, on April 9, 2017. In her complaint, she alleges that
she filed a claim of discrimination with the Equal Opportunity
Employment Commission on June 24, 2016, and received a right to sue
notice on March 10, 2017. Shanghai Cafe, Weng, Lin, and Gu filed an
Answer on June 26, 2017. The parties engaged in discovery at the
close of which the Defendants moved for summary judgment, seeking
dismissal of all of Chen's claims.
In an opinion and order dated March 8, 2019, the Court granted the
Defendants' motion for summary judgment in part and denied it in
part. It dismissed sua sponte Chen's ADEA claims against the
individual defendants, because the ADEA does not provide for
individual liability. It also granted summary judgment to Lin,
dismissing all of the Plaintiff's claims against Lin. Additionally,
it granted summary judgment to all Defendants on Chen's ADEA,
NYSHRL, and NYCHRL claims, to the extent those claims relied on the
alleged existence of discriminatory terms and conditions of
employment.
However, the Court denied summary judgment to the extent it sought
dismissal of Chen's ADEA, NYSHRL, and NYCHRL claims based on
discriminatory termination due to her age. And, it also denied
summary judgment as to individual defendants Weng and Gu for Chen's
claims of discriminatory termination under the NYSHRL and the
NYCHRL.
Consequently, following the Court's summary judgment decision, Lin
was dismissed from the case; the Plaintiff's claims against
Shanghai Cafe under the ADEA, the NYSHRL, and the NYCHRL for
discriminatory termination remained in the case; and the
Plaintiff's claims against Weng and Gu for discriminatory
termination in violation of the NYSHRL and the NYCHRL also
remained.
On Jan. 29, 2020, the counsel for Defendants, Michael K. Chong,
moved to withdraw as counsel for all Defendants. On March 18, 2020,
the Court granted Chong's motion to withdraw as counsel, and gave
the Defendants 30 days to obtain new counsel. By July 20, 2020, the
Defendants had not yet retained new counsel, and the Court
instructed the Plaintiff that it could move for the entry of
default judgment by Sept. 4, 2020. The Defendants were served with
a copy of the Court's order on Aug. 13, 2020.
The Clerk of Court issued a Certificate of Default for Shanghai
Cafe and against the individual defendants on Sept. 18, 2020. On
Sept. 18, 2020, Chen filed a motion for default judgment. On July
7, 2021, the Court denied without prejudice Chen's motion for
default judgment.
On Dec. 21, 2022, Chen renewed her motion for default judgment and
for an award of damages, and also filed a motion for attorneys'
fees. The Defendants were served with these filings on Dec. 22,
2022. To date, the Defendants have not filed any opposition to the
motion for default judgment, motion for attorneys' fees, or Chen's
damages submissions. They have also not taken any action, or
otherwise appeared, since the entry of the Clerk's Certificate of
Default in September 2020.
Judge Figueredo holds that the Plaintiff is entitled to default
judgment against Shanghai Cafe, Weng, and Gu, and to an award of
back pay, liquidated, and emotional distress damages in the amount
of $439,735.30. The Plaintiff is also entitled to an award of
post-judgment interest, to be calculated from the date the Clerk of
Court enters judgment in this action until the date of payment,
using the federal rate set forth in 28 U.S.C. Section 1961.
Additionally, Plaintiff is entitled to an award of attorneys' fees
in the amount of $31,198.79, and costs in the amount of $400.
The Clerk of the Court is respectfully directed to calculate
prejudgment interest on $232,367.65, which comprises the portion of
the Plaintiff's award attributable to back pay and compensatory
damages. Prejudgment interest should be calculated in the manner
explained in pages 18-20 of the Opinion and Order, at the rate of
interest referred to in 28 U.S.C. Section 1961. Finally, the
Plaintiff is directed to serve a copy of the Order on the
Defendants and file proof of service of the same on the docket by
no later than March 31, 2023.
Accordingly, Chen is granted default judgment against Shanghai Cafe
on her claims for violation of the ADEA, the NYSHRL, and the
NYCHRL. She is also granted default judgment against Weng and Gu
for her claims under the NYSHRL and the NYCHRL. Additionally,
judgment is entered against Shanghai Cafe, Weng, and Gu for damages
and attorneys' fees in the amounts outlined.
A full-text copy of the Court's March 24, 2023 Opinion & Order is
available at https://tinyurl.com/ycybbmbx from Leagle.com.
ST. LOUIS, MO: Parties in Robertson Must File Dismissal Papers
--------------------------------------------------------------
In the class action lawsuit captioned as CHRISTOPHER ROBERTSON, v.
CITY OF ST. LOUIS, MISSOURI, et al., Case No. 4:18-cv-01570-JAR
(E.D. Mo.), the Hon. Judge John A. Ross entered an order that, no
later than 7 days following final approval of class certification
in Street, et al. v. O'Toole, Case No. 4:19-cv-02590-CDP, the
parties shall file dismissal papers with respect to the instant
case.
The Court said, "All activity and pending deadlines in this case
are stayed until that time, and this case is administratively
closed."
The parties have notified the Court of a settlement in Street, et
al. v. O'Toole, 4:19-cv-02590-CDP, pursuant to which the present
case will be included in a class settlement, subject to
approval by the Court in the primary case.
A copy of the Court's order dated March 15, 2023 is available from
PacerMonitor.com at https://bit.ly/3ni2Kxb at no extra charge.[CC]
STANLEY BLACK: Bids for Lead Plaintiff Appointment Due May 23
-------------------------------------------------------------
Bragar Eagel & Squire, P.C., a nationally recognized stockholder
rights law firm, announces that a class action lawsuit has been
filed against Stanley Black & Decker, Inc. ("Stanley" or the
"Company") (NYSE: SWK) in the United States District Court for the
District of Connecticut on behalf of all persons and entities who
purchased or otherwise acquired Stanley securities between October
28, 2021 and July 28, 2022, both dates inclusive (the "Class
Period"). Investors have until May 23, 2023 to apply to the Court
to be appointed as lead plaintiff in the lawsuit.
The filed complaint alleges that defendants made false statements
and/or concealed that: (i) rising interest rates, inflation, and
trends in returning to work away from home were in fact quickly
eroding then-heightened demand for Stanley's tools and outdoor
products; (ii) the heightened, extraordinary demand Stanley had
enjoyed as a result of the COVID-19 pandemic in 2021 into 2022 was
returning to 2019 pre-pandemic levels; (iii) Stanley's operations
were already showing signs of slowing demand; (iv) as a result of
reorganization, share repurchasing, and dividend growth, Stanley
lacked the cash to react with agility to changes in demand; and (v)
as a result of Stanley's inability to react to a sharp decline in
demand, the Company's results and metrics, particularly sales
volume, were severely negatively impacted. As a result of the
foregoing, Stanley's public statements were materially false and
misleading at all relevant times.
If you purchased or otherwise acquired Stanley shares and suffered
a loss, are a long-term stockholder, have information, would like
to learn more about these claims, or have any questions concerning
this announcement or your rights or interests with respect to these
matters, please contact Brandon Walker or Marion Passmore by email
at investigations@bespc.com, telephone at (212) 355-4648, or by
filling out this contact form. There is no cost or obligation to
you.
About Bragar Eagel & Squire
Bragar Eagel & Squire, P.C. is a nationally recognized law firm
with offices in New York, California, and South Carolina. The firm
represents individual and institutional investors in commercial,
securities, derivative, and other complex litigation in state and
federal courts across the country. For more information about the
firm, please visit www.bespc.com. Attorney advertising. Prior
results do not guarantee similar outcomes. [GN]
STANLEY BLACK: Faces Rammohan Suit Over 16% Day-Over-Day Share Drop
-------------------------------------------------------------------
NARESH VISSA RAMMOHAN, individually and on behalf of all others
similarly situated v. STANLEY BLACK & DECKER, INC., DONALD ALLAN,
JR., JAMES M. LOREE, AND LEE MCCHESNEY, Case No. 3:23-cv-00369 (D.
Conn., Mar. 24, 2023) is a securities class action on behalf of all
persons or entities who purchased or otherwise acquired Stanley
common stock between October 28, 2021 and July 28, 2022, inclusive,
seeking remedies under the Securities Exchange Act of 1934.
Throughout the Class Period, the Defendants allegedly
misrepresented to investors and the public that despite rising
inflation and interest rates, and Stanley's multiple rounds of
product price increases, that pandemic-fueled, heightened consumer
demand for tools and outdoor products would be sustainable through
2022 due to continuing construction and do-it-yourself projects.
The truth began to be revealed on April 28, 2022 when the
Defendants issued a set of partial corrective disclosures stating
that Stanley's Tools and Outdoor net sales had dropped in the
Company's first fiscal quarter of 2022 to $4.4 billion, and that
Stanley was accordingly revising its earnings per share guidance
down for fiscal year 2022.
On this news, Stanley stock fell 8.6% or $12.01 per share, from a
close of $139.14 per share on April 27, 2022, to a close of $127.13
on April 28, 2022. However, Defendants continued to make false and
misleading statements regarding the Company's deteriorating demand.
The Defendants repeatedly mislead investors about the Company's
core Tools and Outdoor segment, stating that the Tools and Outdoor
sales decline was attributable to supply chain issues rather than
falling demand. Defendant Allan also reassured investors that "the
headline for the first quarter is that demand for our products
remains healthy" and, in response to an analyst question, that
there "is not an assumption that there's some significant slowdown
related to overall demand," says the suit.
On July 28, 2022, the truth was fully revealed when Stanley
released its Q2 2022 results in a press release before stock
markets opened for trading. In the press release, Defendant Allan
stated that "significantly slower demand in late May and June drove
the majority of the challenges we faced this quarter" and that
"[a]s the softening of the demand environment accelerated rapidly
during the last portion of the quarter … [w]e are now preparing
for demand to normalize closer to 2019 levels for the remainder of
2022." Defendants also contemporaneously held an earnings call for
investors and analysts the morning of July 28, 2022. Defendants
revealed on the call that, due to a sharp slowdown in consumer
demand for power tools in May through June 2022, sales volumes had
in fact shrunk by double digits, the Company's net income for its
second quarter had plunged to $87.6M compared to $459.5M in the
year-earlier quarter, and that Stanley was cutting its 2022
earnings per share guidance by nearly half.
Upon the news that demand had plummeted, that sales volumes had
shrunk, and that Stanley was slashing its earnings guidance for
2022 by nearly half, Stanley's common stock, which had closed at
$117.45 per share the evening prior, fell to a closing price of
$98.58 per share on July 28, 2022 on heavy trading volume,
representing over a 16% day-over-day drop, the suit further
asserts.
Plaintiff Naresh Vissa Rammohan purchased Stanley common stock
during the Class Period.
Stanley Black is a global manufacturer of, inter alia, hand tools,
power tools, and outdoor products for consumer and commercial
customers, as well as engineered fastening systems for industrial
customers.[BN]
The Plaintiff is represented by:
Shannon L. Hopkins, Esq.
Gregory M. Potrepka, Esq.
Cole von Richthofen, Esq.
LEVI & KORSINSKY, LLP
1111 Summer Street, Suite 403
Stamford, CT 06905
Telephone: (203) 992-4523
Facsimile: (212) 363-7171
E-mail: shopkins@zlk.com
gpotrepka@zlk.com
cvrichthofen@zlk.com
STATE FARM: Appeals Partial Dismissal Ruling in Varela Suit
-----------------------------------------------------------
State Farm Mutual Automobile Insurance Company filed an appeal from
the District Court's Memorandum Opinion and Order dated February
13, 2023, entered in the lawsuit entitled Yasmin Varela,
individually and on behalf of all others similarly situated v.
State Farm Mutual Automobile Insurance Company, Case No.
0:22-cv-00970-JRT-ECW, in the United States District Court for the
District of Minnesota.
Plaintiff Varela, on behalf of herself and a putative class of
similarly insureds in Minnesota who received a payment for the loss
of a totaled vehicle from the Defendant, filed this suit on April
15, 2022 against State Farm, alleging breach of contract, breach of
the covenant of good faith and fair dealing, unjust enrichment,
violation of the Minnesota Consumer Fraud Act, and declaratory and
injunctive relief. Ms. Varela's claims stem from an alleged illegal
practice whereby State Farm reduces the contractual amount it owes
insureds to take a "typical negotiation" deduction when an insured
is involved in an accident and State Farm declares their vehicle a
total loss and pays out the actual cash value minus any deductible
for the loss.
On July 7, 2022, the Defendant filed a motion to dismiss the case
which the Court granted in part and denied in part through an Order
entered by Judge John R. Tunheim on Feb. 13, 2023.
Judge Tunheim held that because Varela's breach of contract, breach
of the covenant of good faith and fair dealing, and unjust
enrichment claims are foreclosed by the No-Fault Act's mandatory
arbitration provision, the Court granted State Farm's motion to
dismiss these claims. The Court also dismissed the declaratory and
injunctive relief claims as redundant. However, because Varela has
alleged sufficient facts to support her claim for violation of the
Minnesota Consumer Fraud Act and such claim is not limited by the
No-Fault Act or the insurance policy's one-year time period
provision, the Court denied State Farm's motion as to this claim.
The appellate case is captioned as Yasmin Varela v. State Farm
Mutual Auto. Ins. Co., Case No. 23-1516, in the United States Court
of Appeals for the Eighth Circuit, filed on March 17, 2023.
The briefing schedule in the Appellate Case states that:
-- Transcript is due on or before April 26, 2023;
-- Appendix is due on May 8, 2023;
-- BRIEF APPELLANT, State Farm Mutual Automobile Insurance
Company is due on May 8, 2023; and
-- Appellee brief is due 30 days from the date the court issues
the Notice of Docket Activity filing the brief of appellant.[BN]
Defendant-Appellant State Farm Mutual Automobile Insurance Company
is represented by:
Douglas R. Boettge, Esq.
Kelly Maxwell, Esq.
Todd Noteboom, Esq.
STINSON, LLP
50 S. Sixth Street, Suite 2600
Minneapolis, MN 55402
Telephone: (612) 335-7252
Plaintiff-Appellee Yasmin Varela, individually and on behalf of all
others similarly situated, is represented by:
David Walfred Asp, Esq.
Eura Chang, Esq.
Karen Riebel, Esq.
LOCKRIDGE & GRINDAL
100 Washington Avenue, S., Suite 2200
Minneapolis, MN 55401-0000
Business: (612) 339-6900
- and -
James B. Finley, Esq.
FINLEY FIRM, P.C.
200 13th Street
Columbus, GA 31901
Telephone: (706) 322-6226
- and -
R. Brent Irby, Esq.
IRBY LAW, LLC
2201 Arlington Avenue, S.
Birmingham, AL 35205
Telephone: (205) 335-9102
- and -
Paul James Phelps, Esq.
THOMAS J. LYONS & ASSOCIATES
342 E. County Road D
Little Canada, MN 55117-0000
Telephone: (651) 770-9707
STURM & RUGER: Jones Must File Class Cert. Bid by June 5, 2024
--------------------------------------------------------------
In the class action lawsuit captioned as Jones v. Sturm, Ruger &
Co., Inc., Case No. 3:22-cv-01233 (D. Conn.), the Hon. Judge Kari
A. Dooley entered an order on Pretrial Deadlines:
-- All discovery as to class May 5, 2024
certification shall be
concluded by:
-- The Plaintiffs shall move June 5, 2024
for class certification by:
-- The Defendants' opposition to July 10, 2024
the Plaintiffs' motion for
class certification shall be
filed by:
-- The Plaintiffs' reply in July 24, 2024
support shall be due by:
The nature of suit states Torts -- Personal Property Damages.
Ruger s an American firearm manufacturing company based in
Southport, Connecticut, with production facilities also in Newport,
New Hampshire; Mayodan, North Carolina; and Prescott, Arizona.[CC]
SUEZ WTS: Bulnes Must File Bid for Class Certification by August 4
------------------------------------------------------------------
In the class action lawsuit captioned as MARTIN BULNES,
individually, and on behalf of other members of the general public
similarly situated, v. SUEZ WTS SERVICES USA, INC., et al., Case
No. 3:22-cv-01154-BAS-AHG (S.D. Cal.), the Hon. Judge Allison H.
Goddard entered an order granting joint motion to continue
scheduling order deadlines as follows:
1. Fact and class discovery are not bifurcated, but class
discovery must be completed by June 5, 2023.
2. The Plaintiff must file a motion for class certification
by August 4, 2023.
3. Within three days of a ruling on the motion for class
certification, the parties must jointly contact the Court
via email (at efile_goddard@casd.uscourts.gov) to arrange
a further case management conference.
Suez WTS produces and markets a variety of specialty chemical
products.
A copy of the Court's order dated March 15, 2023 is available from
PacerMonitor.com at https://bit.ly/3lHRIk7 at no extra charge.[CC]
SVB FINANCIAL: Bids for Lead Plaintiff Appointment Due May 12
-------------------------------------------------------------
Hagens Berman urges SVB Financial Group (NASDAQ: SIVB) investors
who suffered substantial losses to submit your losses now.
Class Period: June 16, 2021-Mar. 10, 2023
Lead Plaintiff Deadline: May 12, 2023
Visit: www.hbsslaw.com/investor-fraud/SIVB
Contact An Attorney Now: SIVB@hbsslaw.com
844-916-0895
SVB Financial Group (SIVB) Securities Fraud Class Action:
While Hagens Berman believes more facts will be developed, the
complaint which starts the clock on when investors must move to be
a lead plaintiff alleges Defendants made misleading statements and
failed to disclose that: (1) SVB faced a high risk of insolvency in
the wake of the Federal Reserve's commencement in 2021 of ongoing
interest rate increases; (2) SVB would be worse off in this
environment than banks that did not cater to tech-startups and
venture capital-backed companies; and (3) SVB's investments were
negatively affected by rising interest rates, making it
particularly susceptible to a bank run.
Investors began to learn the truth on Mar. 8, 2023, when SVB
revealed that it sold substantially all of its available for
sale-securities portfolio that resulted in an after-tax loss of
approximately $1.38 billion in Q1 and plans to offer $1.25 billion
of stock and $500 million of preferred depositary shares.
Then, on Mar. 9, 2023, the Wall Street Journal and others reported
that SVB's disastrous securities portfolio sales were "directly
related to the surge in interest rates over the past year" and "the
company's $21 billion portfolio had a yield of 1.79% and a duration
of 3.6 years" while "[t]oday, the 3-year US Treasury note yields
4.7%, a far cry from the levels at which the bank bought the
Treasury notes prior to 2022."
These events sent the price of SVB shares crashing $161.79, or 60%,
lower on Mar. 9, 2023, wiping out over $9.5 billion of shareholder
value in a single day.
Then, on Mar. 10, 2023, SVB's wholly owned subsidiary Silicon
Valley Bank was closed by the California Department of Financial
Protection, and the Federal Deposit Insurance Corporation was
appointed as receiver. The previously announced equity offerings
were terminated.
"We're focused on whether SVB hid known risks from investors, and
if so recovering as much as possible on their behalf from any bad
actors, including those who sold on inside information," said Reed
Kathrein, the Hagens Berman partner leading the investigation.
If you invested in SVB and have substantial losses, or have
knowledge that may assist the firm's investigation, click here to
discuss your legal rights with Hagens Berman.
Whistleblowers: Persons with non-public information regarding SVB
should consider their options to help in the investigation or take
advantage of the SEC Whistleblower program. Under the new program,
whistleblowers who provide original information may receive rewards
totaling up to 30 percent of any successful recovery made by the
SEC. For more information, call Reed Kathrein at 844-916-0895 or
email SIVB@hbsslaw.com.
About Hagens Berman
Hagens Berman is a global plaintiffs' rights complex litigation law
firm focusing on corporate accountability through class-action law.
The firm is home to a robust securities litigation practice and
represents investors as well as whistleblowers, workers, consumers
and others in cases achieving real results for those harmed by
corporate negligence and fraud. More about the firm and its
successes can be found at hbsslaw.com. Follow the firm for updates
and news at @ClassActionLaw. [GN]
TRIP MATE: Third Cir. Affirms Dismissal of Rivard Class Complaint
-----------------------------------------------------------------
In the case, FRANCIS RIVARD, Individually and on behalf of all
others similarly situated, Appellant v. TRIP MATE, INC.; UNITED
STATES FIRE INSURANCE COMPANY, Case No. 22-1554 (3d Cir.), the U.S.
Court of Appeals for the Third Circuit affirms the order of the
District Court dismissing Rivard's complaint, holding that the
existence of an enforceable contract between the parties foreclosed
the unjust enrichment claim.
Rivard filed a putative class action, claiming that insurance plan
administrator Trip Mate and insurer U.S. Fire were unjustly
enriched when they retained a portion of Rivard's travel insurance
premium after his trip was cancelled due to the COVID-19 pandemic.
Rivard purchased a 15-day trip for himself and his wife to Scotland
and Ireland to take place in May 2020. In addition to the $9,234 he
paid for the trip, he also paid a $598 premium to Trip Mate for a
travel protection plan. The travel protection plan had three parts:
Part A covered pre-departure cancellation and was underwritten by
the tour company; Part B protected against post-departure issues,
like lost luggage, missed connections, and medical emergencies, and
was underwritten by U.S. Fire; and Part C included non-insurance
services, like concierge assistance, and was underwritten by
various third parties.
The tour company cancelled the trip due to the COVID-19 pandemic
and reimbursed Rivard for a portion of his trip cost. Rivard then
filed a claim with Trip Mate, and in accordance with the terms of
the plan, he was reimbursed in travel vouchers for the remainder of
his trip cost. He did not request or receive a reimbursement of any
portion of the premium.
Rivard, as a representative of other similarly situated insurance
policyholders, brought the putative class action seeking the return
of the portion of the premium associated with the post-departure
coverage under Part B of the travel protection plan. He alleges
that under well-settled insurance law, an insurer must return a
premium when the insurer is not at risk of covering the insured
peril. Because his trip was cancelled, Rivard claims that U.S. Fire
faced no risk that it would need to provide post-departure coverage
and so the retention of his full premium constituted unjust
enrichment.
The District Court dismissed Rivard's complaint under Federal Rule
of Civil Procedure 12(b)(6). It held that Rivard's claim was
foreclosed by the existence of an enforceable contract governing
the same subject matter as the unjust enrichment claim. Rivard
timely appealed.
Rivard argues that the contract at issue does not foreclose the
unjust enrichment claim because (1) it does not address unearned
premiums or partial refunds of unearned premiums and (2) even if it
did, the contract cannot be relied upon because the relevant
portion of the contract is not enforceable.
The Third Circuit disagrees. First, it opines that the subject
matter of the contract is the insurer-insured relationship with
respect to the May 2020 trip. Via his unjust enrichment claim,
Rivard seeks a refund of a portion of the premium paid to insure
the trip. That claim undoubtedly falls within the insurer-insured
relationship, even if the contract does not include an express
provision with respect to unearned premiums. Put another way, as
long as the contract is enforceable, the existence of a contract
covering the same subject matter as the unjust enrichment claim
forecloses that claim altogether.
Second, the contract was take-it-or-leave-it: Rivard did not have
the option to purchase certain parts of the contract and not
others. It is also undisputed that Rivard assented to all parts of
the contract at the same time. The nature and circumstances of the
contract, therefore, demonstrate that it is not divisible. Given
that the contract is not severable, any failure of consideration as
to Part B is inconsequential and the contract remains enforceable.
The existence of an enforceable contract on the same subject matter
as Rivard's unjust enrichment claim forecloses that claim
altogether. The District Court, therefore, properly dismissed the
complaint.
For these reasons, the order of the District Court is affirmed.
A full-text copy of the Court's March 24, 2023 Opinion is available
at https://tinyurl.com/3nhjhfta from Leagle.com.
TUFTS UNIVERSITY: Court Allows Bid to Seal & Impound Documents
--------------------------------------------------------------
In the class action lawsuit captioned as Bruckno v. Tufts
University, Case No. 1:20-cv-11940 (D. Mass.), the Hon. Judge Rya
W. Zobel entered an order allowing motion to seal and impound
certain documents associated with the Plaintiff's motion for class
certification.
The nature of suit states Diversity-Other Contract.
Tufts University is a private research university in Medford and
Somerville, Massachusetts.[CC]
UNITED NATURAL: Bids for Lead Plaintiff Appointment Due May 19
--------------------------------------------------------------
The Class: Robbins LLP reminds investors that a shareholder filed a
class action on behalf of all persons and entities that purchased
or otherwise acquired United Natural Foods, Inc. (NYSE: UNFI)
securities between March 10, 2021 and March 7, 2023, for violations
of the Securities Exchange Act of 1934. United Natural Foods is a
distributor of natural, organic, specialty, produce and
conventional grocery and non-food products.
What Now: Similarly situated shareholders may be eligible to
participate in the class action against United Natural Foods.
Shareholders who want to act as lead plaintiff for the class must
file their papers by May 19, 2023. A lead plaintiff is a
representative party acting on behalf of other class members in
directing the litigation. You do not have to participate in the
case to be eligible for a recovery. For more information, click
here.
All representation is on a contingency fee basis. Shareholders pay
no fees or expenses.
What is this Case About: United Natural Foods, Inc. (UNFI) Made
False and Misleading Statements Regarding its Business Prospects
According to the complaint, on March 8, 2023, United Natural Foods
announced its second quarter 2023 financial results, revealing a $6
million decline in gross profits, despite a 6% increase in net
sales. The Company stated that its profits "were challenged as we
did not repeat the significant level of procurement gains from
rapidly accelerating inflation and inventory gains, due to supply
chain volatility, that we experienced in the second quarter of last
year." On this news, the Company's stock price fell $11.49, or
28.1%, to close at $29.47 per share on March 8, 2023, injuring
investors.
During the class period, defendants failed to disclose to
investors: (1) that, despite its cost saving Value Path initiative,
United Natural Foods had not invested in improving its data
management and related infrastructure; (2) that, as a result, the
Company could not respond adequately to cost changes, such as
inflationary pressure; (3) that, as a result, the Company could not
appreciate the benefits of procurement gains and inventory gains
achieved during fiscal 2022; and (4) that, as a result of the
foregoing, the Company's profitability would be materially
adversely impacted.[GN]
UNITED STATES: Bid to Stay Initial Discovery Deadlines Nixed
------------------------------------------------------------
In the class action lawsuit captioned as MARIA SILVIA GUEVARA
ENRIQUEZ, et al, v. UNITED STATES CITIZENSHIP AND IMMIGRATION
SERVICES et al, Case No. 2:23-cv-00097-TL (W.D. Wash.), the Hon.
Judge Tana Lin entered an order denying without prejudice motion to
stay.
Accordingly, the motion to stay is to allow the Parties sufficient
time to confer and meet the initial scheduling deadlines, however,
the Court hereby extends the deadlines set forth in its February 16
Order as follows:
-- April 17: FRCP 26(f) conference
-- May 3: Initial disclosures
-- May 13: Joint status report and discovery plan
The Court has considered the competing interests in the case,
including the failure of the Defendants to show that the initial
scheduling deadlines would be burdensome to meet (as opposed to
general discovery itself) and the Plaintiffs' allegation of
continuing and ongoing harm from the Defendants' delay (which forms
the basis of the Plaintiffs' claim against the Defendants), and
finds that a stay is not warranted at this time.
This is a putative class action asserting unreasonable delays in
the processing of certain U.S. immigration applications. This
matter is before the Court on the Defendants U.S. Citizenship &
Immigration Services' ("USCIS") and Ur M. Jaddou's, the Director of
USCIS, motion to stay initial discovery deadlines (the "Motion to
Stay").
Having considered the relevant record, the Court denies the motion
to stay but extends the initial scheduling deadlines by
30 days.
The Plaintiffs are a putative class of individuals who allege that
the Defendants have unreasonably delayed the processing of their
applications for a provisional waiver (Form I-601A) in violation of
the Administrative Procedure Act.
On January 26, 2023, the Plaintiffs filed a motion for class
certification, which was fully briefed as of March 9.
A copy of the Court's order dated March 15, 2023 is available from
PacerMonitor.com at https://bit.ly/3K49IP8 at no extra charge.[CC]
UNITED STATES: Faces Suit Over Campaign to Censor Online Speech
----------------------------------------------------------------
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]
UNIVERSAL CITY: Woulfe, et al., Seek to Certify Two Classes
-----------------------------------------------------------
In the class action lawsuit captioned as CONOR WOULFE and PETER
MICHAEL ROSZA, individually, and on behalf of all others similarly
situated, v. UNIVERSAL CITY STUDIOS LLC and DOES 1-20, inclusive,
Case No. 2:22-cv-00459-SVW-AGR (C.D. Cal.), the Plaintiffs ask the
Court to enter an order pursuant to Rules 23(b)(1), (b)(3) and
(c)(4) of the Federal Rules of Civil Procedure:
1. Certifying a California Class, defined as:
"All persons who purchased in California any tickets for
theater viewership, or who rented or purchased physical or
electronic copies of the movie Yesterday within
California, within the applicable statute o limitations,
for personal use until the date Notice is disseminated;"
2. Certifying a Maryland Class, defined as:
"All persons who purchased in Maryland any tickets for
theater viewership, or who rented or purchased physical or
electronic copies of the movie Yesterday within
California, within the applicable statute of limitations,
for personal use until the date Notice is disseminated;"
3. Appointing Conor Woulfe as Class Representative for the
California Class;
4. Appointing Peter Michael Rosza as Class Representative for
the Maryland Class; and
5. Appointing Lejeune Law, P.C., Pequignot + Myers and
Sheehan & Associates, P.C. as Class Counsel.
Excluded from each Class are (a) the Defendants, their
parents, subsidiaries, affiliates, officers, directors,
members of their immediate families, and the heirs,
successors, or assigns of any of the foregoing; (b) all
judges presiding in this case and their chambers staff;
and (c) all counsel of record in this case.
Universal City operates as an entertainment company. The Company
produces and distributes motion pictures and television programs.
A copy of the the Plaintiffs' motion dated March 15, 2023 is
available from PacerMonitor.com at https://bit.ly/3JE8Dfu at no
extra charge.[CC]
The Plaintiffs are represented by:
Cody R. Lejeune, Esq.
LEJEUNE LAW, P.C.
445 S. Figueroa St Ste 3100
Los Angeles CA 90071
Telephone: (985) 713-4964
E-mail: cody@lejeunelawfirm.com
- and -
Spencer Sheehan, Esq.
SHEEHAN & ASSOCIATES, P.C.
60 Cuttermill Rd, Suite 412
Great Neck NY 11021
Telephone: (516) 2340-7800
E-mail: spencer@spencersheehan.com
- and -
Matthew A. Pequignot, Esq.
PEQUIGNOT + MYERS
2585 Ala Namahana Pkwy #1007
Kilauea HI 96754
Telephone: (202) 328-1200
E-mail: mpequignot@pmiplaw.com
VALERY JOSEPH: Velazquez Sues Over General Workers' Unpaid Wages
----------------------------------------------------------------
David Fernando Vernaza Velazquez, on behalf of himself and others
similarly situated in this proposed FLSA Collective Action,
Plaintiff v. Valery Joseph Salon, LTD., Valery Joseph @ BNYC, Inc.,
Valery Joseph @ Bridgehampton, Inc., and Valery Joseph, Defendants,
Case No. 1:23-cv-02525 (S.D.N.Y., March 24, 2023) seeks injunctive
and declaratory relief and to recover unpaid overtime wages,
liquidated and statutory damages, pre- and post-judgment interest,
and attorneys' fees and costs pursuant to the Fair Labor Standards
Act, the New York Labor Law, and the NYLL's Wage Theft Prevention
Act.
According to the complaint, Defendants willfully violated the
federal and state laws by knowingly and intentionally failing to
pay Plaintiffs overtime wages; failing to furnish to Plaintiffs at
the time of hiring, or whenever their rate(s) of pay changed, with
a wage notice containing the rate or rates of pay and basis
thereof; and failing to provide Plaintiffs with a statement listing
each of the dates of work covered by the payment of wages.
Plaintiff Velazquez was employed as a general worker from May 2016
to March 23, 2023 at Defendants' hair salons, known as "Valery
Joseph Salon," located in New York.
Valery Joseph Salon, Ltd. owns, operates and controls hair salons
in New York.[BN]
The Plaintiff is represented by:
Jason Mizrahi, Esq.
Joshua Levin-Epstein, Esq.
LEVIN-EPSTEIN & ASSOCIATES, P.C.
60 East 42nd Street, Suite 4700
New York, NY 10165
Telephone: (212) 792-0048
E-mail: Jason@levinepstein.com
WALMART INC: Kochar False Ad Suit Transferred to E.D. Ark.
----------------------------------------------------------
The case styled SHIPRA KOCHAR, individually, and on behalf of all
others similarly situated, Plaintiff v. WALMART, INC., a Delaware
corporation, and DOES 1 through 100, inclusive, Defendants, Case
No. 3:21-cv-02343, was removed from the United States District
Court for the Northern District of California to the United States
District Court for the Eastern District of Arkansas on March 24,
2023.
The Clerk of Court for the Eastern District of Arkansas assigned
Case No. 4:23-cv-00290-BSM to the proceeding.
The Plaintiff brings this proposed consumer class action
individually and on behalf of all other members of the Class, who
purchased for use and not resale any of Defendant's tainted baby
foods. The Defendant's wrongful marketing and advertising, which
includes misleading, deceptive, unfair, and false claims and
omissions, allowed it to capitalize on, and reap enormous profits
from, consumers who paid the purchase price or a price premium for
baby foods that were not sold as advertised. The Defendant
continues to wrongfully induce consumers to purchase its baby foods
that are not as advertised, says the Plaintiff.
Walmart, Inc. is an American multinational retail corporation that
operates a chain of hypermarkets, discount department stores, and
grocery stores in the United States.[BN]
The Plaintiff is represented by:
Carolin K. Shining, Esq.
Jennifer Michelle Leinbach, Esq.
Jesse S. Chen, Esq.
Jessica Behmanesh, Esq.
WILSHIRE LAW FIRM
3055 Wislhire Blvd 12th Floor
Los Angeles, CA 90010
Telephone: (213) 381-9988
Facsimile: (213) 381-9989
- and -
Jonas Palmer Mann, Esq.
UMHOFER, MITCHELL & KING LLP
11766 Wilshire Boulevard, Suite 900
Los Angeles, CA 90025
Telephone: (213) 394-7979
- and -
Melissa Weiner, Esq.
PEARSON WARSHAW, LLP
328 Barry Avenue S, Suite 200
Wayzata, MN 55391
Telephone: (612) 389-0600
Facsimile: (612) 389-0610
- and -
Thiago Merlini Coelho, Esq.
WILSHIRE LAW FIRM
3055 Wislhire Blvd 12th Floor
Los Angeles, CA 90010
Telephone: (213) 381-9988
Facsimile: (213) 381-9989
Defendant Walmart Inc., a Delaware corporation, is represented by:
Dale Joseph Giali, Esq.
Peter Hsiao, Esq.
KING & SPALDING LLP
633 West Fifth Street, Suite 1600
Los Angeles, CA 90071
Telephone: (213) 443-4355
Facsimile: (213) 443-4310
- and -
Ethan Price Davis, Esq.
KING & SPALDING
50 California Street, Suite 3300
San Francisco, CA 94111
Telephone: (415) 318-1228
E-mail: edavis@kslaw.com
- and -
Livia M. Kiser, Esq.
KING & SPALDING LLP
110 North Wacker Drive, Suite 3800
Chicago, IL 60606
Telephone: (312) 764-6911
E-mail: lkiser@kslaw.com
WAN FU YUAN: Class Cert. Opening Brief Set for April 14
-------------------------------------------------------
In the class action lawsuit captioned as Chien v. Wan Fu Yuan, Inc.
et al, Case No. 2:22-cv-05527-ES-JSA (D.N.J.), the Plaintiffs
propose the following briefing schedule as follows:
-- Opening Brief April 14, 2023
-- Defendants' Opposition April 28, 2023
-- Plaintiffs' Reply May 5, 2023
In this motion, the Plaintiffs expect to seek the following relief:
1. Conditional certification of this action as a
representative collective action pursuant to the Fair
Labor Standards Act (FLSA), on behalf of all employees
employed by Defendants within the last three years
("Prospective FLSA Collective");
2. Court-facilitated notice of this FLSA action to the
Prospective Plaintiffs including a consent form (opt-in)
form as authorized by the FLSA; and
3. Approval of a FLSA notice of this action and consent form.
The Plaintiff Chien worked from May 5, 2013, through on or about
June 27, 2020, as a fry wok at Defendants restaurants. The
Plaintiff Chien, worked during the period, from on or about May 5,
2013 to on or about June 30, 2018, regularly about sixty-nine and
three quarter (69.75) hours per week.
From on or about July 1, 2018 and on or about June 27, 2020, he
regularly worked about 71 hours per week. More specifically, the
Plaintiff Chien However, no matter how many hours did Plaintiff and
other employees actually work and regardless of their titles, they
were paid a compensation at a fixed rate throughout their
employment at Defendants restaurant.
A copy of the Court's order dated March 16, 2023 is available from
PacerMonitor.com at https://bit.ly/40LvLQj at no extra charge.[CC]
The Plaintiff is represented by:
Aaron Schweitzer, Esq.
TROY LAW, PLLC.
41-25 Kissena Boulevard, Suite 110
Flushing, NY 11355
Telephone: (718) 762-1324
Facsimile: (718) 762-1342
E-mail: troylaw@troypllc.com
WASHINGTON COUNTY, AL: Wins Bid to Extend Time to Response
----------------------------------------------------------
In the class action lawsuit captioned as Lang, et al., v.
Washington County, Alabama et al., Case No. (), the Hon. Judge
1:22-cv-00057 Jeffrey U. Beaverstock entered an order granting
unopposed motion for extension to respond to the Plaintiff's motion
for class certification.
The nature of suit states Prisoner Petitions -- Habeas Corpus --
Prison Condition.[CC]
WFM PRIVATE: Stipulation & Revised Case Scheduling Order Entered
----------------------------------------------------------------
In the class action lawsuit captioned as SHOSHA KELLMAN, on behalf
of herself and all others similarly situated, v. WFM PRIVATE LABEL,
L.P., WHOLE FOODS MARKET CALIFORNIA, INC., WHOLE FOODS MARKET
SERVICES, INC., and WHOLE FOODS MARKET DISTRIBUTION, INC. Case No.
3:17-cv-06584-LB (N.D. Cal.), the Hon. Judge Laurel Beeler entered
an order revising case schedule as follows:
Case Event Existing Proposed
Date Date
Class Certification opening Mar. 21, 2023 Apr. 28, 2023
expert reports
Class Certification rebuttal Apr. 14, 2023 May 12, 2023
expert reports
Class Certification expert May 3, 2023 June 2, 2023
depositions
Motions for class May 18, 2023 June 9, 2023
certification
Oppositions to motions for June 15, 2023 July 14, 2023
class certification
Replies to motions for July 7, 2023 Aug. 11, 2023
class certification
A copy of the Court's order dated March 16, 2023 is available from
PacerMonitor.com at https://bit.ly/3ZolYhV at no extra charge.[CC]
The Plaintiff is represented by:
James A. Francis, Esq.
FRANCIS MAILMAN SOUMILAS, P.C.
The Defendant is represented by:
Brian R. Blackman, Esq.
J.T. Wells Blaxter, Esq.
David P. Adams, Esq.
BLAXTER | BLACKMAN LLP
WILLIAMS-SONOMA: April 11 Extension to Oppose Class Cert. Sought
----------------------------------------------------------------
In the class action lawsuit captioned as WILLIAM RUSHING and
ELIZABETH PERLIN, individually and on Behalf of all Others
Similarly Situated, v. WILLIAMS-SONOMA, INC., a Delaware
corporation, also d/b/a Williams-Sonoma, and Williams-Sonoma Home,
Pottery Barn, PB Teen, and PB Dorm, Pottery Barn Kids, Pottery Barn
Baby, and West Elm; WILLIAMS-SONOMA DTC, INC., a California
corporation; WILLIAMS- SONOMA ADVERTISING, INC., a California
corporation; and DOES 1-30, Case No. 3:16-cv-01421-WHO (N.D. Cal.),
the Parties asks the Court to enter an order granting their
stipulation to extend briefing schedule for the plaintiff's motion
for class certification as follows:
Event Current Proposed
Deadline Deadline
Last day to file opposition Mar. 28, 2023 Apr. 11, 2023
to Motion for Class
Certification
Deadline for the Defendants to Apr. 13, 2023 Apr. 27, 2023
produce class certification
expert(s) for deposition
Last day to filed reply May 29, 2023 June 12, 2023
in support of Motion for
Class Certification
Hearing Jun. 14, 2023 TBD (August
2023 or
later)
On September 28, 2022, Perlin filed a Motion for Class
Certification. On October 4, 2022, the Court set for the following
briefing schedule for the Motion for Class Certification.
Williams-Sonoma is an American publicly traded consumer retail
company that sells kitchenware and home furnishings.
A copy of the the Parties' motion dated March 15, 2023 is available
from PacerMonitor.com at https://bit.ly/40rK0cM at no extra
charge.[CC]
The Plaintiff is represented by:
Robert B. Carey, Esq.
Leonard W. Aragon, Esq.
Shana E. Scarlett, Esq.
HAGENS BERMAN SOBOL SHAPIRO LLP
1301 2nd Ave Ste 2000, Seattle,
Washington, WA98101
The Defendants are represented by:
P. Craig Cardon, Esq.
Robert J. Guite, Esq.
Benjamin O. Aigboboh, Esq.
Alyssa Sones, Esq.
SHEPPARD MULLIN RICHTER & HAMPTON LLP
Four Embarcadero Center, 17th Floor
San Francisco, CA 94111-4109
Telephone: (415) 434-9100
Facsimile: (415) 434-3947
Email: ccardon@sheppardmullin.com
rguite@sheppardmullin.com
baigboboh@sheppardmullin.com
asones@sheppardmullin.com
WILLIAMS-SONOMA: Must Produce Class Cert Experts by April 27
------------------------------------------------------------
In the class action lawsuit captioned as Rushing v.
Williams-Sonoma, Inc. et al., Case No. 3:16-cv-01421 (N.D. Cal.),
the Hon. Judge William H. Orrick entered an order granting
stipulation regarding class certification schedule:
-- Responses due by: April 11, 2023
-- Defendants to produce class April 27, 2023
certification expert(s) for
deposition by:
-- Replies due by: June 12, 2023
-- Motion Hearing set for Aug. 16, 2023
The nature of suit states torts -- personal property -- other
fraud.[CC]
WOOD GROUP: Iannotti Seeks Time Extension to File Class Cert Bid
----------------------------------------------------------------
In the class action lawsuit captioned as CHRIS IANNOTTI,
Individually and for Others Similarly Situated, v. WOOD GROUP
MUSTANG, Case No. 3:20-cv-00958-DWD (S.D. Ill.), the Plaintiff
files an unopposed motion to extend deadline for motion for class
certification from March 16, 2023 to April 21, 2023.
Wood Group serves the upstream oil and gas, refining and chemicals,
pipeline, automation and control, and industrial markets.
A copy of the the Plaintiff's dated March 15, 2023 is available
from PacerMonitor.com at https://bit.ly/3TCUzY8 at no extra
charge.[CC]
The Plaintiff is represented by:
Alyssa J. White, Esq.
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: mjosephson@mybackwages.com
adunlap@mybackwages.com
awhite@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
E-mail: rburch@brucknerburch.com
- and-
Douglas M. Werman, Esq.
WERMAN SALAS P.C.
77 W. Washington St., Ste 1402
Chicago, IL 60602
Telephone: (312) 419-1008
E-mail: dwerman@flsalaw.com
WYNN RESORTS: Appeals Class Cert. Ruling in Ferris Securities Suit
------------------------------------------------------------------
Wynn Resorts Limited, et al., filed an appeal from a district Court
order dated March 1, 2023, entered in the lawsuit entitled JOHN V.
FERRIS, et al. Plaintiffs v. WYNN RESORTS LIMITED, et al.,
Defendants, Case No. 2:18-cv-00479-APG-BNW, in the United States
District Court for the District of Nevada, Las Vegas.
This is a securities fraud class-action suit against Wynn Resorts,
Stephen Wynn, and Company officers and board members. Wynn Resorts
develops, owns, and operates resort casinos in Las Vegas, Macau,
and Massachusetts. Stephen Wynn, the founder and former CEO and
chairman of the board, resigned in 2018 after a Wall Street Journal
article reported on allegations that he sexually assaulted and
harassed several employees over the course of more than a decade.
On the day of the article's publication, Company share prices
dropped 10.12%.
Lead plaintiffs John V. Ferris and JoAnn M. Ferris and named
plaintiff Jeffrey Larsen allege that Company officers, board
members, and other senior-level management knew about or recklessly
disregarded the allegations of Wynn's misconduct and concealed
them. The Plaintiffs allege that in concealing the misconduct, the
Defendants made material misrepresentations or omissions as part of
a scheme to defraud in violation of the Securities Exchange Act of
1934 and Securities and Exchange Commission. They also assert a
control-person liability claim alleging that Wynn and certain other
defendants violated Section 20(a) of the Exchange Act.
On July 18, 2022, the Plaintiffs moved under Rule 23 of the Federal
Rules of Civil Procedure for certification of a class of all
persons or entities that purchased or otherwise acquired Company
securities between March 28, 2016 and February 12, 2018 and were
damaged thereby. They also request that they be appointed as class
representatives, that Pomerantz LLP be designated as lead class
counsel, and that Muehlbauer Law Office, Ltd. be appointed as
local/liaison counsel. Defendants Wynn Resorts and Matthew Maddox
opposed, and the other defendants filed joinders to the
opposition.
As reported in the Class Action Reporter, the Hon. Judge Andrew P.
Gordon entered an order on March 1, 2023 granting the Plaintiffs'
motion to certify class including:
"All individuals and entities that purchased or otherwise
acquired Wynn Resorts securities between March 28, 2016 and
February 12, 2018, inclusive (the "Class Period"), and who
were damaged thereby."
Excluded from the Class are the Defendants, the officers
and directors of the Company at all relevant times, members
of their immediate families and their legal
representatives, heirs, successors, or assigns, and any
entity in which the Defendants have or had a controlling
interest."
The Judge further ordered that Pomerantz LLP be appointed as class
counsel and Muehlbauer Law be appointed as local/liaison counsel.
The appellate case is captioned as John Ferris, et al. v. Wynn
Resorts Limited, et al., Case No. 23-80023, in the United States
Court of Appeals for the Ninth Circuit, filed on March 17,
2023.[BN]
Defendants-Petitioners WYNN RESORTS LIMITED, et al., are
represented by:
Edward Hillenbrand, Esq.
Michael John Shipley, Esq.
KIRKLAND & ELLIS, LLP
555 S Flower Street, Suite 3700
Los Angeles, CA 90071
Telephone: (213) 680-8400
- and -
Mark Charles Holscher, Esq.
KIRKLAND & ELLIS LLP
333 South Hope Street
Los Angeles, CA 90071
Telephone: (213) 680-8400
- and -
Austin C. Norris, Esq.
KIRKLAND & ELLIS, LLP
2049 Century Park, E, Suite 3700
Los Angeles, CA 90067
Telephone: (213) 680-8184
- and -
Michele D. Johnson, Esq.
LATHAM & WATKINS, LLP
650 Town Center Drive, Suite 2000
Costa Mesa, CA 92626
- and -
Colleen Carlton Smith, Esq.
LATHAM & WATKINS, LLP
12670 High Bluff Drive
San Diego, CA 92130
Telephone: (858) 523-5400
- and -
Daniel R. McNutt, Esq.
MCNUTT LAW FIRM, P.C.
625 S. 8th Street
Las Vegas, NV 89101
Telephone: (702) 384-1170
- and -
Dylan T. Ciciliano, Esq.
Erika Pike Turner, Esq.
GARMAN TURNER GORDON
7251 Amigo Street, Suite 210
Las Vegas, NV 89119
Telephone: (725) 777-3000
- and -
James N. Kramer, Esq.
Michael Todd Scott, Esq.
ORRICK HERRINGTON & SUTCLIFFE, LLP
405 Howard Street
San Francisco, CA 94105
Telephone: (415) 773-5700
- and -
John P. Aldrich, Esq.
ALDRICH LAW FIRM, LTD.
7866 West Sahara Avenue
Las Vegas, NV 89117
Telephone: (702) 853-5490
- and -
Phillip Kim, Esq.
THE ROSEN LAW FIRM, P.A.
275 Madison Avenue, 34th Floor
New York, NY 10016
Telephone: (212) 686-1060
- and -
Abdrew R. Muehlbauer, Esq.
MUEHLBAUER LAW OFFICE, LTD.
7915 West Sahara Avenue
Las Vegas, NV 89117
Telephone: (702) 330-4505
Plaintiffs-Respondents JOHN V. FERRIS and JOANN M. FERRIS,
individually and on behalf of all others similarly situated, are
represented by:
Jeremy Alan Lieberman, Esq.
POMERANTZ, LLP
600 3rd Avenue, 20th Floor
New York, NY 10016
Telephone: (212) 661-1100
YORK COUNTY, PA: Judge Rejects Class Status in Prisoners' Suit
--------------------------------------------------------------
Matt Enright at 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. "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, 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]
[^] 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.
This material is copyrighted and any commercial use, resale or
publication in any form (including e-mail forwarding, electronic
re-mailing and photocopying) is strictly prohibited without prior
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Information contained herein is obtained from sources believed to
be reliable, but is not guaranteed.
The CAR subscription rate is $775 for six months delivered via
e-mail. Additional e-mail subscriptions for members of the same
firm for the term of the initial subscription or balance thereof
are $25 each. For subscription information, contact
Peter A. Chapman at 215-945-7000.
*** End of Transmission ***