/raid1/www/Hosts/bankrupt/CAR_Public/230406.mbx
C L A S S A C T I O N R E P O R T E R
Thursday, April 6, 2023, Vol. 25, No. 70
Headlines
1614 MADISON PARTNERS: Denial of Bid to Dismiss Wise Suit Affirmed
3M COMPANY: Bray Product Liability Suit Transferred to N.D. Fla.
AGENTRA LLC: Abboud Appeals TCPA Suit Dismissal to 5th Cir.
AKDO INTERTRADE: Vachnine Files ADA Suit in S.D. New York
APPROVED OIL: Fails to Pay for Proper Wages, Batista Alleges
C3.AI INC: Faces Reckstin Family Shareholder Suit
CABELA'S LLC: Irvin Files Suit in M.D. Pennsylvania
CHRISTUS SPOHN HEALTH: Vera Suit Transferred to N.D. Texas
CIMAREX ENERGY: W.D. Okla. Declines to Strike Duncan's Class Claims
COMMUNITY HEALTH: Kuffrey Files Suit in M.D. Tennessee
DELTA AIRLINES: Herrera ADA Suit Removed to D. New Jersey
DELTACON GLOBAL: Fails to Pay Proper Wages, Harris Alleges
DERMATOLOGIC COSMETIC: Reid Files ADA Suit in S.D. New York
DOVENMUEHLE MORTGAGE: Fails to Pay Proper Wages, Fulton Alleges
EXPERIAN INFORMATION: Grob Files FCRA Suit in E.D. Virginia
FACILITY SERVICES: Warren Sues to Recover Unpaid Overtime
FAMILY DOLLAR: Rodriguez Wage-and-Hour Suit Removed to E.D. Cal.
FORTRA LLC: Vancosky Sues Over Failure to Secure Data
GENERAL ELECTRIC: Final Judgment & Order Issued in Data Breach Suit
GREATBANC TRUST: Jurisdictional Discovery in Randall Suit Allowed
HERITAGE LANDSCAPE: Guazon Labor Suit Removed to E.D. Cal.
HIBAR INC: Slade Files ADA Suit in S.D. New York
ILLINOIS GASTROENTEROLOGY: Settles Class Action Over Data Breach
JOHNSON & JOHNSON: Bid to Move HLF Suit to D.C. Super. Court Denied
LENDINGTREE LLC: Bid to Compel Arbitration in Granados Suit Granted
LUNDBECK LLC: E.D. Virginia Grants Bids to Dismiss MSP RICO Suit
MACPAW INC: Crumwell Files ADA Suit in S.D. New York
MAPLEWOOD, MO: Summary Judgment Bid in Webb Denied W/o Prejudice
MARTIN SPORTS: Anderson Wins Class Certification Bid in Glynn Suit
MCDONALD'S CORPORATION: Clark Suit Transferred to N.D. Illinois
MERCEDES-BENZ USA: King Files Suit in N.D. Georgia
MFK LLC: Worthy Sues Over Unpaid Overtime Wages
MOSAIC DISTRIBUTORS: Slade Files ADA Suit in S.D. New York
NATIONAL BANK: Kalloghlian Myers Files Breach Class Action Suit
NEW YORK, NY: Admin. of Sierra Suit Settlement Remains Confidential
NILUU LLC: Reid Files ADA Suit in S.D. New York
NYGG (ASIA): Puddu's Class Notice OK'd; Fairness Hearing on Oct. 6
OPPORTUNITY FINANCIAL: Wins Bid for Arbitration in Johnson Suit
OSF HEALTHCARE: Fails to Pay Overtime Pay, Hanson Suit Alleges
PALANTIR TECHNOLOGIES: Briefing on Bid to Toss Cupat Suit Deferred
PHILADELPHIA, PA: Absent Class Members' Bid to Intervene Denied
PORTFOLIO RECOVERY: Crawford FDCPA Suit Removed to D. New Jersey
RELIOS INC: Slade Files ADA Suit in S.D. New York
SOIL BUILDING: Fails to Pay for Overtime Wages, Blesi Alleges
STARDUST MOTEL: Flournoy Files Suit in Cal. Super. Ct.
STREETTEAM SOFTWARE: Ulmer Labor Suit Transferred to C.D. Cal.
TH EXPLORATION: Atinum Files 4th Cir. Appeal in Gas Royalties Suit
TOYOTA AUSTRALIA: Loses Class Action Appeal Over Defective DPF
TOYOTA MOTOR: Gamez Files Suit in E.D. Texas
TRS RECOVERY SERVICES: Ocampo FDCPA Suit Removed to E.D. New York
TURNER CONSTRUCTION: N.Y. App. Ct. Dismissed Nastasi Counterclaims
UNIFI AVIATION: Mauleon Files Suit in Cal. Super. Ct.
UNITED PARCEL: Wynn Appeals FCRA Suit Dismissal to 9th Cir.
UNITED STATES: Denial of Class Cert. in Gatore v. DHS Affirmed
UNITED WATER SYSTEM: Knott Suit Removed to W.D. Louisiana
URBAN NECESSITIES: Wilson Sues Over Unsolicited Text Messaging
VBIT TECHNOLOGIES: Court Grants Enno's Bid for Alternative Service
WALMART INC: N.D. Illinois Dismisses Kahn's Consumer Fraud Claims
WAYNE COUNTY, MI: Bids to Amend Ewing Complaint v. Sheriff Granted
WESTERN DENTAL: Bradford Files FCRA Suit in S.D. Texas
WESTINGHOUSE AIR: Black Files Suit in W.D. Pennsylvania
ZOLL MEDICAL: Prosky Files Suit in D. Massachusetts
*********
1614 MADISON PARTNERS: Denial of Bid to Dismiss Wise Suit Affirmed
------------------------------------------------------------------
In the appealed case captioned as BRETT WISE,
Plaintiff-Respondent-Appellant v. 1614 MADISON PARTNERS, LLC,
Defendant-Appellant-Respondent, 154592/22, Appeal No. 17547-17548,
Case Nos. 2022-04163, 2022-05634 (N.Y. App. Div.), the Appellate
Division of the Supreme Court of New York affirms the Orders
entered by the New York County Supreme Court on Aug. 29, 2022, and
Dec. 7, 2022.
The Orders, respectively, denied 1614 Madison Partners LLC's motion
to dismiss the putative class action complaint and granted the
Plaintiff Brett Wise's motion for class certification -- limited
the class to those tenants who reside in or formerly resided in the
subject premises on or after May 27, 2018. The Complaint asserts
claims for rent overcharges and related declaratory relief.
The Appellate Division holds that "The court correctly denied
defendant's motion to dismiss, as the complaint adequately alleges
that defendant improperly manipulated the initial legal regulated
rents of apartments in the building through the offering of
concessions to the tenants. The court providently exercised its
discretion in declining to consider defendant's untimely reply
papers. In any event, the documents submitted on reply did not
utterly refute the allegations that certain purported construction
concessions were in fact not to reimburse the tenants for
inconveniences arising from construction work, but rather, were
part of a fraudulent scheme to register the initial rents charged
at inflated amounts. . . As the court found, the class period
should commence on May 27, 2018, rather than May 27, 2016, as
argued by plaintiff. The court correctly determined that the
four-year statute of limitations under the former CPLR 213-a
governed the rent overcharge claims, which accrued prior to the
enactment of the Housing Stability and Tenant Protection Act."
A full-text copy of the Decision and Order dated March 21, 2023, is
available https://tinyurl.com/w3vr399w from Leagle.com.
3M COMPANY: Bray Product Liability Suit Transferred to N.D. Fla.
----------------------------------------------------------------
The case styled STEPHEN D. BRAY, Plaintiff v. 3M COMPANY, 3M
OCCUPATIONAL SAFETY LLC, AEARO HOLDING LLC, AEARO INTERMEDIATE LLC,
AEARO LLC, AND AEARO TECHNOLOGIES LLC, Defendants, Case No.
3:23-cv-00787, was transferred from the United States District
Court for the Southern District of Illinois to the United States
District Court for the Northern District of Florida on March 27,
2023.
The suit was initially filed in the Circuit Court for the Twentieth
Judicial Circuit, St. Clair County, Illinois before it was removed
to the Southern District of Illinois on March 3, 2023.
Plaintiff Bray alleges that he suffers from hearing loss and
tinnitus from his use of the Dual-ended Combat Arms(TM) Earplugs
version 2 while serving in the United States military. The CAEv2
were designed by Aearo Technologies LLC in close collaboration with
the U.S. military.
This action is based on the same allegations and asserts the same
types of claims as other removed actions now pending in In re 3M
Combat Arms Earplug Products Liability Litigation, MDL No. 2885, in
the United States District Court for the Northern District of
Florida.
3M Company is an American multinational conglomerate operating in
the fields of industry, worker safety, healthcare and consumer
goods.[BN]
Defendant 3M Company is represented by:
Melanie MacKay, Esq.
DECHERT LLP
35 West Wacker Drive, Suite 3400
Chicago, IL 60601
Telephone: (312) 646-5800
Facsimile: (312) 646-5858
E-mail: Melanie.MacKay@dechert.com
AGENTRA LLC: Abboud Appeals TCPA Suit Dismissal to 5th Cir.
-----------------------------------------------------------
Plaintiff Monica Abboud is appealing a district court ruling
entered March 2, 2023, in the lawsuit entitled MONICA ABBOUD,
individually and on behalf of all others similarly situated,
Plaintiff v. AGENTRA, LLC, Defendant, Civil Action No.
3:19-CV-00120, in the United States District Court for the Northern
District of Texas, Dallas.
Ms. Abboud brought this suit on January 15, 2019 asserting claims
under the Telephone Consumer Protection Act (TCPA) against Agentra,
a Texas-based insurance agency. She challenges phone calls and text
messages that Agentra (or a third-party acting on its behalf and
for its benefit) placed to her and other cellphone users allegedly
in violation of the TCPA.
Ms. Abboud alleged receipt of both texts and calls from Agentra,
and the Court previously certified two classes of similarly
situated individuals: (1) consumers who received one or more text
messages from Agentra in the same manner as Abboud; and (2)
consumers who were called on their cellphones by Agentra to promote
insurance products using the same equipment that was used to call
Abboud.
As reported in the Class Action Reporter on Sept. 22, 2022, Judge
Brantley Starr of the Northern District of Texas, Dallas Division,
granted in part and denied in part Agentra's motion for summary
judgment and denied Abboud's motion for summary judgment. Judge
Starr granted the motion regarding Abboud's text-message claims and
dismissed with prejudice those claims. He denied the motion
regarding Abboud's phone-call claims.
On March 2, 2023, Judge Brantley Starr entered an Order dismissing
all claims without prejudice. He further ordered that the case be
closed.
The appellate case is captioned as Abboud v. Agentra, LLC, Case No.
23-10294, in the United States Court of Appeals for the Fifth
Circuit, filed on March 27, 2023.[BN]
Plaintiff-Appellant Monica Abboud, individually and on behalf of
all others similarly situated, is represented by:
Patrick Harry Peluso, Esq.
WOODROW & PELUSO, L.L.C.
3900 E. Mexico Avenue
Denver, CO 80210
Telephone: (970) 673-9075
Defendant-Appellee Agentra, L.L.C., a Texas limited liability
company, is represented by:
William S. Richmond, Esq.
PLATT CHEEMA RICHMOND, P.L.L.C.
1201 N. Riverfront Boulevard
Dallas, TX 75207
Telephone: (214) 559-2700
AKDO INTERTRADE: Vachnine Files ADA Suit in S.D. New York
---------------------------------------------------------
A class action lawsuit has been filed against Akdo Intertrade, Inc.
The case is styled as Ness-Lee Vachnine, on behalf of himself and
all others similarly situated v. Akdo Intertrade, Inc., Case No.
1:23-cv-02610 (S.D.N.Y., March 28, 2023).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Akdo Intertrade, Inc. -- https://akdo.com/ -- provides construction
materials. The Company offers stone, porcelain, ceramic, glass,
metal, wood, slabs, furniture, carpet, and other related
products.[BN]
The Plaintiff is represented by:
Gabriel Levy, Esq.
GABRIEL A. LEVY, P.C.
1129 Northern Blvd, Suite 404
Manhasset, NY 11030
Phone: (516) 287-3458
Email: glevy@glpcfirm.com
APPROVED OIL: Fails to Pay for Proper Wages, Batista Alleges
------------------------------------------------------------
OTNIEL BATISTA, individually and on behalf of all others similarly
situated, Plaintiff v. APPROVED OIL CO. OF BROOKLYN, INC.; APPROVED
ENERGY LLC; SAF TRANSPORTATION LLC; and VINCENT THEURER,
Defendants, Case No. 1:23-cv-02394 (E.D.N.Y., March 28, 2023) is an
action against the Defendant for failure to pay minimum wages,
overtime compensation, provide meals and rest periods, and provide
accurate wage statements.
Plaintiff Batista was employed by the Defendants as a delivery
driver.
APPROVED OIL CO. OF BROOKLYN, INC. retails petroleum products. The
Company markets and delivers natural gas and petroleum fuels, as
well as provides installation, maintenance, and repair services for
heating equipment. Approved Oil serves residential and commercial
customers in the State of New York. [BN]
The Plaintiff is represented by:
Joshua Levin-Epstein, Esq.
Jason Mizrahi, Esq.
LEVIN-EPSTEIN & ASSOCIATES, P.C.
60 East 42nd Street, Suite 4700
New York, NY 10165
Telephone: (212) 792-0046
Email: Joshua@levinepstein.com
C3.AI INC: Faces Reckstin Family Shareholder Suit
--------------------------------------------------
C3.ai, Inc. 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 March 4, 2022, a putative
securities class action complaint captioned "The Reckstin Family
Trust v. C3.ai, Inc. et al.," (22-cv-01413-HSG) was filed in the
U.S. District Court for the Northern District of California against
the company, and certain current and former officers and directors.
In December 12, 2022, the court appointed a lead plaintiff and lead
counsel.
In February 15, 2023, the lead plaintiff and three additional named
plaintiffs filed an amended complaint. The amended complaint names
as defendants the company, four current and former officers and
directors, the underwriters in the company's initial public
offering (IPO) and Baker Hughes company.
The amended complaint generally alleges that the defendants made
material misstatements or omissions about the company's partnership
with Baker Hughes and the company's own salesforce. It alleges that
defendants made these misstatements or omissions in connection with
the company's IPO in violation of Sections 11 and 15 of the
Securities Act of 1933 and between December 9, 2020 and December 2,
2021, inclusive, in violation of Sections 10(b) and 20(a) of the
Securities Exchange Act of 1934.
It further alleges that certain defendants engaged in insider
trading in violation of Section 20A of the Securities Exchange Act
of 1934. Plaintiffs seek unspecified damages, interest, fees and
costs.
C3 AI is an Enterprise AI application software company based in
California.
CABELA'S LLC: Irvin Files Suit in M.D. Pennsylvania
---------------------------------------------------
A class action lawsuit has been filed against Cabela's LLC, et al.
The case is styled as David Irvin, on behalf of himself and all
others similarly situated v. Cabela's LLC, BPS Direct, LLC, Case
No. 1:23-cv-00530-CCC (M.D. Pa., March 28, 2023).
The nature of suit is stated as Other P.I. for Personal Injury.
Cabela's -- https://www.cabelas.com/shop/en -- is an American
retailer that specializes in hunting, fishing, boating, camping,
shooting and other outdoor recreation merchandise.[BN]
The Plaintiff is represented by:
Alex Kashurba, Esq.
Steven A. Schwartz, Esq.
CHIMICLES SCHWARTZ KRINER & DONALDSON-SMITH LLP
361 W. Lancaster Avenue
Haverford, PA 19041
Phone: (610) 642-8500
Email: amk@chimicles.com
sas@chimicles.com
CHRISTUS SPOHN HEALTH: Vera Suit Transferred to N.D. Texas
----------------------------------------------------------
The case styled as Maria Vera, individually and on behalf of all
others similarly situated v. Christus Spohn Health System
Corporation, Case No. 2:23-cv-00047 was transferred from the U.S.
District Court for the Southern District of Texas, to the U.S.
District Court for the Northern District of Texas on March 28,
2023.
The District Court Clerk assigned Case No. 3:23-cv-00665-S to the
proceeding.
The nature of suit is stated as Other Personal Injury Torts/Pers
Inj.
Christus Spohn Health System Corporation --
https://www.christushealth.org/connect/ministries/spohn -- are a
faith-based, value driven health care ministry dedicated to
providing excellent, effective, compassionate care to the people of
South Texas.[BN]
The Plaintiffs are represented by:
Robert C. Hilliard, Esq.
Alexander Ellis Hilliard, Esq.
Marion M. Reilly, Esq.
Michael E. Richardson, II, Esq.
HILLIARD MUNOZ GONZALES LLP
719 S Shoreline, Suite 500
Corpus Christi, TX 78401
Phone: (361) 882-1612
Fax: (361) 882-3015
Email: bobh@hmglawfirm.com
alex@hmglawfirm.com
marion@hmglawfirm.com
mrichardson@hmglawfirm.com
- and -
John A Yanchunis, Esq.
MORGAN & MORGAN COMPLEX LITIGATION GROUP
201 N Franklin Street, 7th Floor
Tampa, FL 33602
Phone: (813) 223-5505
Email: jyanchunis@forthepeople.com
The Defendants are represented by:
Casie D Collignon, Esq.
Michelle Rose Gomez, Esq.
BAKER & HOSTETLER LLP
1801 California Street, Suite 4400
Denver, CO 80202
Phone: (303) 861-0600
Email: ccollignon@bakerlaw.com
mgomez@bakerlaw.com
- and -
Tamara D Baggett, Esq.
BAKER HOSTETLER
2850 N. Harwood Street, Suite 1100
Dallas, TX 75201
Phone: (214) 210-1208
Fax: (214) 210-1201
Email: tbaggett@bakerlaw.com
CIMAREX ENERGY: W.D. Okla. Declines to Strike Duncan's Class Claims
-------------------------------------------------------------------
Judge Jodi W. Dishman of the U.S. District Court for the Western
District of Oklahoma denies the Defendant's Motion to Strike Class
Allegations in the case captioned as THE DUNCAN GROUP, LLC, on
behalf of itself and all others similarly situated, Plaintiff v.
CIMAREX ENERGY CO., Defendant, Case No. CIV-18-00123-JD (W.D.
Okla.).
The Duncan Group, LLC, individually and on behalf of a class of
others similarly situated, brings a claim of breach of lease
against Cimarex Energy Co., alleging systematic underpayment of
royalties owed to the class (the lessors) by Cimarex (the lessee).
Duncan claims that Cimarex improperly deducts from royalty payments
costs for midstream services to natural gas and other constituents
of the gas stream produced from wells in which putative class
members hold royalty interests.
In the Motion to Strike, Cimarex contends that the Court should
strike Duncan's class allegations under Rule 23(d)(1)(D) of the
Federal Rule of Civil Procedure because the putative class
identified in the Complaint is unascertainable. According to
Cimarex, "ascertainability" is a prerequisite to class
certification that Duncan cannot satisfy based on the class
definition in the Complaint.
Many cases Cimarex points to take up ascertainability
contemporaneously with class certification -- either upon review of
a plaintiff's motion for class certification or upon appellate
review of a district court's order on such a motion. Indeed, this
was the posture of the cases most supportive of Cimarex's position
that the putative class here is unascertainable because identifying
the member royalty owners would be arduous, complicated,
individualized, and costly.
The Court declines to strike the class allegations. Given the
posture and reliance on evidence here, the Court elects to consider
these arguments with Duncan's Motion for Class Certification rather
than determining at this time. But the Court will take up the
issue on "whether the class proposed by Duncan meets this apparent
ascertainability requirement" at the hearing on the pending class
certification motion.
A full-text copy of the Order dated March 21, 2023, is available
https://tinyurl.com/y54ratck from Leagle.com.
COMMUNITY HEALTH: Kuffrey Files Suit in M.D. Tennessee
------------------------------------------------------
A class action lawsuit has been filed against Community Health
Systems, Inc., et al. The case is styled as Sandra Kuffrey,
individually and on behalf of all others similarly situated v.
Community Health Systems, Inc., CHSPSC, LLC, Case No. 3:23-cv-00285
(M.D. Tenn., March 28, 2023).
The nature of suit is stated as Other Personal Property for
Personal Injury.
Community Health Systems -- http://www.chs.net/-- is one of the
nation's leading healthcare providers.[BN]
The Plaintiffs are represented by:
Bart D. Cohen, Esq.
BAILEY & GLASSER LLP
1622 Locust Street
Philadelphia, PA 19103
Phone: (215) 274-9420
Fax: (202) 463-2103
Email: bcohen@baileyglasser.com
DELTA AIRLINES: Herrera ADA Suit Removed to D. New Jersey
---------------------------------------------------------
The case styled as Carlos Herrera, on behalf of himself and all
others similarly situated v. Delta Airlines, Inc., Case No.
HUD-L-000428-23 was removed from the Superior Court of New Jersey,
Hudson County, to the U.S. District Court for the District of New
Jersey on March 28, 2023.
The District Court Clerk assigned Case No. 2:23-cv-01737 to the
proceeding.
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Delta Air Lines -- http://www.delta.com/-- is one of the major
airlines of the United States and a legacy carrier.[BN]
The Plaintiff appears pro se.
The Defendant is represented by:
David S. Ostern, Esq.
LITTLER MENDELSON P.C.
One Newark Center
1085 Raymond Blvd., 8th Floor
Newark, NJ 07102
Phone: (973) 848-4712
Email: dostern@littler.com
DELTACON GLOBAL: Fails to Pay Proper Wages, Harris Alleges
----------------------------------------------------------
DOYLE HARRIS, individually and on behalf of all others similarly
situated, Plaintiff v. DELTACON GLOBAL, INC., Defendant, Case No.
5:23-cv-382 (W.D. Tex., March 28, 2023) is an action against the
Defendant's failure to pay the Plaintiff and the class overtime
compensation for hours worked in excess of 40 hours per week.
Plaintiff Harris was employed by the Defendant as a security
guard.
DELTACON GLOBAL, INC. is incorporated and licensed in the state of
Texas to provide private security guard services, private
investigations, and training of security officers and
investigators. [BN]
The Plaintiff is represented by:
Douglas B. Welmaker, Esq.
WELMAKER LAW, PLLC
409 N. Fredonia, Suite 118
Longview, TX 75601
Telephone: (512) 799-2048
Email: doug@welmakerlaw.com
DERMATOLOGIC COSMETIC: Reid Files ADA Suit in S.D. New York
-----------------------------------------------------------
A class action lawsuit has been filed against Dermatologic Cosmetic
Laboratories LLC. The case is styled as Nadreca Reid, individually
and as the representative of a class of similarly situated persons
v. Dermatologic Cosmetic Laboratories LLC, Case No. 1:23-cv-02617
(S.D.N.Y., March 29, 2023).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Dermatologic Cosmetic Laboratories (DCL Skincare) --
https://www.dclskincare.com/ -- develops innovative skincare
formulations for some of the best and brightest names in aesthetic
skincare, including renowned dermatologists.[BN]
The Plaintiff is represented by:
Dan Shaked, Esq.
SHAKED LAW GROUP, P.C.
14 Harwood Court, Suite 415
Scarsdale, NY 10583
Phone: (917) 373-9128
Email: shakedlawgroup@gmail.com
DOVENMUEHLE MORTGAGE: Fails to Pay Proper Wages, Fulton Alleges
---------------------------------------------------------------
BRITTNEY FULTON, individually and on behalf of all others similarly
situated, Plaintiff v. DOVENMUEHLE MORTGAGE, INC., Defendant, Case
No. 1:23-cv-01929 (N.D. Ill., March 28, 2023) seeks to recover from
the Defendants unpaid wages and overtime compensation, interest,
liquidated damages, attorneys' fees, and costs under the Fair Labor
Standards Act.
Plaintiff Fulton was employed by the Defendant as a customer
service representative.
Dovenmuehle Mortgage Company, L.P. is headquartered in the United
States. The company's line of business includes providing various
business services. [BN]
The Plaintiff is represented by:
Peter J. Flowers, Esq.
Frank V. Cesarone, Esq.
MEYERS & FLOWERS, LLC
3 N. Second Street, Suite 300
St. Charles, IL 60174
Telephone: (630) 232-6333
Facsimile: (630) 845-8982
Email: pjf@meyers-flowers.com
fvc@meyers-flowers.com
-and -
Jacob R. Rusch, Esq.
Zackary S. Kaylor, Esq.
JOHNSON BECKER, PLLC
444 Cedar Street, Suite 1800
Saint Paul, MN 55101
Telephone: (612) 436-1800
Facsimile: (612) 436-1801
Email: jrusch@johnsonbecker.com
zkaylor@johnsonbecker.com
EXPERIAN INFORMATION: Grob Files FCRA Suit in E.D. Virginia
-----------------------------------------------------------
A class action lawsuit has been filed against Experian Information
Solutions, Inc., et al. The case is styled as Jessica E. Grob, on
behalf of herself and all other similarly situated individuals v.
Experian Information Solutions, Inc., Case No. 3:23-cv-00212-RCY
(E.D. Va., March 28, 2023).
The lawsuit is brought over alleged violation of the Fair Credit
Reporting Act.
Experian Information Solutions, Inc. -- https://www.experian.com/
-- operates as an information services company. The Company offers
credit information, analytical tools, and marketing services.[BN]
The Plaintiff is represented by:
Drew David Sarrett, Esq.
CONSUMER LITIGATION ASSOCIATES, PC
626 East Broad Street, Suite 300
Richmond, VA 23219
Phone: (804) 905-9900
Fax: (757) 930-3662
Email: drew@clalegal.com
- and -
Craig Carley Marchiando, Esq.
Leonard Anthony Bennett, Esq.
CONSUMER LITIGATION ASSOCIATES
763 J. Clyde Morris Boulevard, Suite 1A
Newport News, VA 23601
Phone: (757) 930-3660
Fax: (757) 930-3662
Email: craig@clalegal.com
lenbennett@clalegal.com
FACILITY SERVICES: Warren Sues to Recover Unpaid Overtime
---------------------------------------------------------
John Warren, individually and for others similarly situated v.
PONDSCO FACILITY SERVICES, LLC, Case No. 4:23-cv-00267 (E.D. Tex.,
March 29, 2023), is brought to recover unpaid overtime and other
damages from the Defendant in violation of the Fair Labor Standards
Act.
The Plaintiff regularly worked more than 40 hours in a week. But
these workers never receive overtime when they work more than 40
hours in a workweek. Instead of paying overtime, the Defendant pays
the Plaintiff and the Putative Class Members the same hourly rate
for all hours worked, including those in excess of 40 hours in a
workweek (or "straight time for overtime").
The Defendant's straight time for overtime pay scheme violates the
FLSA because it deprives the Plaintiff and the Putative Class
Members of overtime pay at the proper premium rates. Further, the
Defendant does not pay the Plaintiff and the Putative Class Members
for all the hours they worked. Instead, for every shift these
employees work at least 6 hours, the Defendant automatically
deducts 30 minutes from their work time for so-called meal breaks.
The Plaintiff and the Putative Class Members are thus not paid for
that time.
But the Defendant fails to provide the Plaintiff and the Putative
Class Members with bona fide meal breaks. Instead, the Defendant
requires the Plaintiff and the Putative Class Members to remain
on-duty throughout their shifts and continuously subjects them to
interruptions, including during their unpaid "meal breaks." The
Defendant's auto-deduction policy violates the FLSA by depriving
the Plaintiff and the Putative Class Members of overtime pay for
all overtime hours worked, says the complaint.
The Plaintiff worked for the Defendant as a Janitor.
Pondsco is a janitorial and facility services provider with
operations across the United States.[BN]
The Plaintiff is represented by:
Michael A. Josephson, Esq.
Andrew W. Dunlap, Esq.
JOSEPHSON DUNLAP LLP
11 Greenway Plaza, Suite 3050
Houston, TX 77046
Phone: 713-352-1100
Facsimile: 713-352-3300
Email: mjosephson@mybackwages.com
adunlap@mybackwages.com
- and -
Richard J. (Rex) Burch, Esq.
BRUCKNER BURCH PLLC
11 Greenway Plaza, Suite 3025
Houston, TX 77046
Phone: (713) 877-8788
Facsimile: (713) 877-8065
Email: rburch@brucknerburch.com
FAMILY DOLLAR: Rodriguez Wage-and-Hour Suit Removed to E.D. Cal.
----------------------------------------------------------------
The case styled JASON RODRIGUEZ, individually and on behalf of all
others similarly situated, Plaintiff v. FAMILY DOLLAR, INC., a
North Carolina Corporation, and DOES 1-50, inclusive, Defendant,
Case No. BCV-23-100064-DRZ, was removed from the Superior Court of
California in and for the County of Kern to the United States
District Court for the Eastern District of California on March 27,
2023.
The Clerk of Court for the Eastern District of California assigned
Case No. 1:23-at-00271 to the proceeding.
In the complaint, Plaintiff alleges, on behalf of himself and all
others similarly situated, 10 total causes of action, nine of which
are for various violations of the California Labor Code and one for
"Unfair Competition" under the California Business & Professions
Code.
Family Dollar, Inc. operates as a national discount store. The
Company offers merchandise that includes consumables, apparel,
accessories, seasonal, electronics, and home products.[BN]
The Defendant is represented by:
Elena R. Baca, Esq.
Jennifer Milazzo, Esq.
PAUL HASTINGS LLP
515 South Flower Street, 25th Floor
Los Angeles, CA 90071
Telephone: (213) 683-6000
Facsimile: (213) 627-0705
E-mail: elenabaca@paulhastings.com
jennifermilazzo@paulhastings.com
- and -
Ryan D. Derry, Esq.
PAUL HASTINGS LLP
101 California Street, 48th Floor
San Francisco, CA 94111
Telephone: (415) 856-7000
Facsimile: (415) 856-7100
E-mail: ryanderry@paulhastings.com
FORTRA LLC: Vancosky Sues Over Failure to Secure Data
-----------------------------------------------------
Tara Hartzel Vancosky, individually and on behalf all others
similarly situated v. Fortra, LLC, Case No. 0:23-cv-00770 (D.
Minn., March 29, 2023), is brought against the Defendant, seeking
to obtain damages, restitution, and injunctive relief for a class
of individuals ("Class" or "Class Members") who are similarly
situated and have received notices of the data breach from
customers of the Defendant, arising out of a massive January 2023
data breach ("Data Breach") of documents and information stored on
the computer network of Fortra, including but not limited to
Fortra's "GoAnywhere" site.
The third-party entities include Community Health Systems
Professional Services Corporations, LLC ("CHSPSC"), Hatch Bank, and
other companies or organizations who are Fortra's customers
("Customers"), which have been attacked by cybercriminals as a
result of Fortra's negligence.
On its computer network, Fortra holds and stores certain highly
sensitive personally identifiable information ("Private
Information") on behalf of various businesses to which it provides
its services (i.e., Forta's Customers), including for example
Community Health Systems Professional Services Corporations, LLC
("CHSPSC"). Customers collect the Private Information of Plaintiff
and Class Members, i.e., individuals who provided their highly
sensitive and confidential personal information in exchange for
business services offered by the Customers. The Customers then
entrust Fortra to organize, store, and protect that Private
Information on their behalf.
According to the Notice of Data Breach Letter that CHSPSC sent to
Plaintiff and Class Members related to its business, Fortra first
"became aware of the incident the evening of January 30, 2023 and
took impacted systems offline on January 31, 2023, stopping the
unauthorized party's ability to access the system." Fortra's
investigation determined that there was a breach to its computer
network from January 30, 2023, to January 31, 2023. On or about
February 2, 2023, Fortra notified CHSPSC (and upon information and
belief, other Customers) of the incident. It informed CHSPSC that
the files it stored for CHSPSC on Fortra's GoAnywhere site were
subject to unauthorized access and compromised.
Customers' (including CHSPSC, Hatch Bank, and others) reliance on
Fortra's technology led to unauthorized access and compromise of
hundreds of thousands (if not millions) of individuals' names and
Social Security numbers as well as Personally Identifying
Information ("PII") and Protected Health Information ("PHI")
depending on the Customer's specific business type. The victims of
Fortra's data breach include Plaintiff and Class Members. As a
result of Defendant's Data Breach subjecting Customers' data to
unauthorized access and exfiltration, Plaintiff and hundreds of
thousands (if not millions) of Class Members suffered ascertainable
losses in the form of invasion of privacy and financial losses
resulting from identity theft, out-of pocket expenses, the loss of
the benefit of their bargain, and the value of their time
reasonably incurred to remedy or mitigate the effects of the
attack.
The Plaintiff's and Class Members' highly sensitive personal
information--which was entrusted to Defendant by its Customers was
compromised and unlawfully accessed and extracted during the Data
Breach. The Defendant disregarded the privacy and property rights
of Plaintiff and Class Members by, inter alia, intentionally,
willfully, recklessly, or negligently failing to take adequate and
reasonable measures to ensure its data systems were protected
against unauthorized intrusions; failing to disclose that they did
not have adequately robust computer systems and security practices
to safeguard Plaintiff's and Class Members' Private Information;
failing to take standard and reasonably available steps to prevent
the Data Breach; and failing to provide Plaintiff and Class Members
prompt and accurate and complete notice of the Data Breach, says
the complaint.
The Plaintiff received a Notice of the Data Breach from CHSPSC, a
Customer of Defendant Fortra.
Fortra is a cybersecurity and automation information technology
software company.[BN]
The Plaintiff is represented by:
Brian C. Gudmundson, Esq.
Michael J. Laird, Esq.
Rachel K. Tack, Esq.
ZIMMERMAN REED LLP
1100 IDS Center
80 South 8th Street
Minneapolis, MN 55402
Phone: (612) 341-0400
Email: brian.gudmundson@zimmreed.com
michael.laird@zimmreed.com
rachel.tack@zimmreed.com
- and -
Gary E. Mason, Esq.
Danielle L. Perry, Esq.
Lisa A. White, Esq.
MASON LLP
5335 Wisconsin Avenue, NW, Suite 640
Washington, DC 20015
Phone: (202) 429-2290
Email: gmason@masonllp.com
dperry@masonllp.com
lwhite@masonllp.com
GENERAL ELECTRIC: Final Judgment & Order Issued in Data Breach Suit
-------------------------------------------------------------------
Judge Katherine Polk Failla of the U.S. District Court for the
Southern District of New York enters Final Judgment and Order of
Dismissal with Prejudice in the case, IN RE: GE/CBPS DATA BREACH
LITIGATION, Case No. 20 Civ. 2903 (KPF) (S.D.N.Y.).
Plaintiff Steven Fowler and Defendants Canon Business Process
Services, Inc. and General Electric Co. have entered into a
settlement agreement, which sets forth the terms and conditions for
a proposed settlement and dismissal of the Action with prejudice as
to the Defendants upon the terms and conditions set forth therein.
On Aug. 24, 2022, the Court granted the Plaintiff's Motion for
Preliminary Approval of Class Action Settlement, conditionally
certifying a class pursuant to Fed. R. Civ. P. 23(b)(3) of "the
10,392 of individuals identified on the Settlement Class List to
whom GE sent letters, on or about March 20, 2020, notifying those
individuals that information relating to them may have been
compromised as a result of the Data Incident announced by the
Defendants in March of 2020."
Judge Failla has considered the Parties' Settlement Agreement, as
well as the Plaintiff's Motion for Final Approval of the Settlement
Agreement, the Plaintiff's Motion for Attorneys' Fees, Costs,
Expenses, And Service Award, together with all exhibits thereto,
the arguments and authorities presented by the Parties and their
counsel at the Final Approval Hearing held on Feb. 22, 2023.
The Court now finally approves the Settlement in all respects and
finds that the Settlement is fair, reasonable, adequate, and in the
best interests of the Settlement Class. The Parties are directed to
implement the Settlement Agreement according to its terms and
provisions. The Action is dismissed on the merits and with
prejudice.
Judge Failla has also considered the Plaintiff's Motion for
Attorneys' Fees, Costs, Expenses, And Service Award, as well as the
supporting memorandum of law and declarations, and adjudges that
the payment of attorneys' fees, costs, and expenses in the amount
of $321,179.52 is reasonable in light of the multi-factor test used
to evaluate fee awards in the Second Circuit. Such payment will be
made pursuant to and in the manner provided by the terms of the
Settlement Agreement.
Judge Faila has also considered Plaintiff's Motion, memorandum of
law, and supporting declarations for a service award to the Class
Representative, Steven Fowler. She adjudges that the payment of a
service award in the amount of $1,500 to Mr. Fowler to compensate
him for his efforts and commitment on behalf of the Settlement
Class, is fair, reasonable, and justified under the circumstances
of the case. Such payment will be made pursuant to and in the
manner provided by the terms of the Settlement Agreement.
All payments made to the Settlement Class Members pursuant to the
Settlement Agreement that are not cashed within 90 days of issuance
will be void. In the event a check becomes void, the Settlement
Class Member will have until six months after the Effective Date to
request re-issuance.
The matter is dismissed with prejudice and without costs except
that, without affecting the finality of the Final Judgment for
purposes of appeal, until the Effective Date the Court will retain
jurisdiction over all matters relating to administration,
consummation, enforcement, and interpretation of the Settlement
Agreement.
The Final Order and Judgment resolves all claims against all
parties in the Action and is a final order. Judge Failla directs
entry of the Final Judgment pursuant to Federal Rule of Civil
Procedure 58 based upon her finding that there is no just reason
for delay of enforcement or appeal of the Final Judgment.
A full-text copy of the Court's March 28, 2023 Final Judgment &
Order is available at https://tinyurl.com/27yda4eh from
Leagle.com.
GREATBANC TRUST: Jurisdictional Discovery in Randall Suit Allowed
-----------------------------------------------------------------
In the case, Aryne Randall, Scott Kuhn, and Peter Morrissey, on
behalf of the Wells Fargo & Company 401(k) Plan and a class of
similarly situated participants of the Plan, Plaintiffs v.
Greatbanc Trust Company, Wells Fargo & Co., and Timothy J. Sloan,
Defendants, Case No. 22-cv-2354 (ECT/DJF) (D. Minn.), Magistrate
Judge Dulce J. Foster of the U.S. District Court for the District
of Minnesota grants the Plaintiffs' Motion for Leave to Conduct
Jurisdictional Discovery.
The matter is before the Court on the Plaintiffs' Motion, on behalf
of the Wells Fargo & Company 401(k) Plan and a class of similarly
situated participants of the Plan. Judge Foster held a hearing on
the Motion on March 17, 2023 and directed the parties to submit
additional information by letter to the Court.
In September 2022, the Plaintiffs filed a putative class action
asserting seven claims for relief under ERISA stemming from two
factual allegations related to the alleged reclassification of
Common Stock and Preferred Stock dividends in the Wells Fargo and
Company 401(k) Plan: (1) Wells Fargo improperly used Preferred
Stock dividends to offset its matching contribution obligations
under the Plan, rather than paying down employee stock ownership
plan ("ESOP") loans; and (2) Wells Fargo took dividends on Common
Stock allocated to participant accounts and used such dividends to
offset its employer matching contributions.
In December 2022, Defendants Greatbanc Trust Co., Wells Fargo &
Co., and Timothy J. Sloan ("Defendants") moved to dismiss the
Plaintiffs' Complaint under Rules 12(b)(6) and 12(b)(1) of the
Federal Rules of Civil Procedure, arguing the Plaintiffs failed to
state a claim on which relief may be granted and lacked Article III
standing to assert their claims. To support their standing argument
under Rule 12(b)(1), they relied on extrinsic evidence, including a
declaration from a Senior Benefits Consultant at Wells Fargo and
Plan account records.
On Jan. 6, 2023, the Plaintiffs filed an amended complaint --
substantively similar to their Complaint -- which is now the
operative pleading. In light of the Amended Complaint, District
Judge Eric C. Tostrud entered an Order on January 9 denying the
Defendants' motion to dismiss as moot. The parties subsequently
submitted a joint email to the Court, however, stating that the
Defendants planned to move for dismissal of the Amended Complaint
and that the Plaintiffs planned to move for jurisdictional
discovery related to that anticipated motion. On Feb. 8, 2023,
Judge Tostrud entered an Order extending the Defendants' deadline
to answer or otherwise respond to the Amended Complaint until after
Plaintiffs' Motion is decided and any jurisdictional discovery is
completed.
The Plaintiffs' Motion anticipates the Defendants' forthcoming Rule
12(b)(1) motion will seek to dismiss the Plaintiffs' Amended
Complaint on the grounds previously asserted, namely, that the
Plaintiffs lack standing because they have no injury since they
received all matching contributions and Common Stock dividends to
which they were entitled under the terms of the Plan.
To respond to the Defendants' factual attack on standing, the
Plaintiffs seek: (1) a deposition of the Defendants' declarant,
Katherine Farnum, on the subjects presented in her declaration, the
allocation of dividends from the certain Plan sub-accounts, and the
Plan records on which she relied; (2) the total value of Preferred
Stock dividends on Plan-owned Preferred Stock used in a sample year
for purposes other than paying principal and interest on Preferred
Stock notes, and (3) the fair market value reports on which
GreatBanc, the Trustee, relied for annual Preferred Stock
transactions in the sample year.
The Defendants argue jurisdictional discovery is not warranted
because the discovery the Plaintiffs seek is irrelevant to the
question of whether the Plaintiffs suffered an injury-in-fact
arising from Wells Fargo's allocation of Preferred Stock dividends.
They contend the Plaintiffs received all matching Common Stock
contributions and Common Stock dividends to which they were
entitled under the terms of the Plan.
Upon reviewing the Plan documentation, Judge Foster finds that the
Plan authorizes allocations over the six percent cap when there is
unallocated Common Stock at year end, such that it is at least
possible the Plaintiffs received fewer Common Stock allocations
than they otherwise might have received but for the alleged
challenged conduct. She says the Plan describes circumstances in
which additional allocations of Common Stock to Plan participants
are mandatory--not theoretical.
Without ruling on the merits of the parties' claims and defenses,
or reaching the underlying question of whether the Plaintiffs in
fact suffered a sufficient injury-in-fact to establish Article III
standing, Judge Foster finds the Plaintiffs have demonstrated an
adequate basis for discovery concerning whether the potential
amount of unallocated Common Stock at year end was negatively
impacted by Wells Fargo's alleged decision to use Preferred Stock
dividends to pay its mandatory Plan contributions, instead of using
the dividends to pay down the ESOP loans. They are further entitled
to depose the declarant upon whose statements the Defendants rely
in support of their anticipated motion regarding the contents of
her declaration and the documents supporting it. Judge Foster
concludes jurisdictional discovery is warranted under the
circumstances.
Finally, Judge Foster notes that the scope of the Plaintiffs'
discovery request is tailored to a single sample year and that the
Defendants have neither argued nor demonstrated that responding to
the request will be burdensome. For these reasons, she grants
Plaintiffs' Motion.
The Plaintiffs may conduct the following jurisdictional discovery:
(a) a deposition of the Katherine E. Farnum on the subjects
presented in her declaration, the allocation of dividends from Plan
sub-accounts, and the Plan records on which she relied; and
(b) the Plaintiffs' requests for production set forth at ECF
No. 60-6.
A full-text copy of the Court's March 28, 2023 Order is available
at https://tinyurl.com/mr2hvr6c from Leagle.com.
HERITAGE LANDSCAPE: Guazon Labor Suit Removed to E.D. Cal.
----------------------------------------------------------
The case styled ALBERT GUAZON and ERNESTO LAINEZ, individually, and
on behalf of other members of the general public similarly
situated, Plaintiffs v. HERITAGE LANDSCAPE SUPPLY GROUP, INC., a
Delaware corporation; SRS DISTRIBUTION INC., a Delaware
corporation; and DOES 1 THROUGH 100, inclusive, Defendants, Case
No. STK-CV-UOE-2023-1507, was removed from the Superior Court of
California in and for the County of San Joaquin to the United
States District Court for the Eastern District of California on
March 27, 2023.
The Clerk of Court for the Eastern District of California assigned
Case No. 1:23-at-00272 to the proceeding.
The complaint alleges causes of action for (1) failure to pay
regular and overtime wages; (2) failure to provide meal breaks or
pay premiums; (3) failure to provide rest breaks or pay premiums;
(4) failure to pay wages timely upon termination; (5) failure to
reimburse necessary business expenses; (6) failure to provide
accurate itemized wage statements; and (7) unlawful business
practices.
Heritage Landscape Supply Group, Inc. was founded in 1980. The
Company's line of business includes providing landscaping and
garden services.[BN]
The Defendants are represented by:
Carrie A. Gonell, Esq.
Samuel S. Sadeghi, Esq.
Mayra Negrete, Esq.
MORGAN, LEWIS & BOCKIUS LLP
600 Anton Boulevard, Suite 1800
Costa Mesa, CA 92626-7653
Telephone: (714) 830-0600
Facsimile: (714) 830-0700
E-mail: carrie.gonell@morganlewis.com
sam.sadeghi@morganlewis.com
mayra.negrete@morganlewis.com
HIBAR INC: Slade Files ADA Suit in S.D. New York
------------------------------------------------
A class action lawsuit has been filed against HiBar, Inc. The case
is styled as Linda Slade, individually and as the representative of
a class of similarly situated persons v. HiBar, Inc., Case No.
1:23-cv-02621 (S.D.N.Y., March 29, 2023).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
HiBar, Inc. -- https://hellohibar.com/ -- offers eco-friendly,
all-natural haircare and skincare made in solid form and without
plastic packaging or our water resource.[BN]
The Plaintiff is represented by:
Dan Shaked, Esq.
SHAKED LAW GROUP, P.C.
14 Harwood Court, Suite 415
Scarsdale, NY 10583
Phone: (917) 373-9128
Email: shakedlawgroup@gmail.com
ILLINOIS GASTROENTEROLOGY: Settles Class Action Over Data Breach
----------------------------------------------------------------
databreaches.net reports that there has been a settlement in
litigation stemming from a breach previously noted on DataBreaches.
Without admitting guilt or wrongdoing, Illinois Gastroenterology
Group has agreed to pay an undisclosed sum to settle claims from an
October 2021 data breach first disclosed in April 2022. The
incident involved unnamed threat actors accessing and exfiltrating
data on more than 227,000 patients.
Top Class Actions reports that the flat sum settlement for
individuals is as follows:
Class members whose Social Security numbers or biometrics were
compromised and all California subclass members can receive a cash
payment of $150. Class members whose Social Security numbers were
not compromised but whose health information was breached can
receive a cash payment of $50.
Class members who experienced damages as a result of the data
breach can choose to receive reimbursement for documented losses
instead of the flat rate payments described above. The settlement
allows claimants to receive up to $200 for ordinary losses, three
hours of lost time at $25 per hour, and up to $5,000 for
extraordinary monetary losses.
The case is McNicholas, et al. v. Illinois Gastroenterology Group
PLLC, Case No. 22LA00000173, in the Nineteenth Judicial Circuit
Court of Lake County, Illinois. The official settlement site is
IGGSettlement.com
As it has done with other settlements, DataBreaches checked the
terms of the settlement for any provisions about improving data
security. For the 113-page settlement agreement, this was the only
provision:
3.3 Injunctive Relief. IGG has implemented and shall continue to
implement data enhancement measures to provide security for
Plaintiffs' and Settlement Class Members' PII, PHI, and PBI. Costs
associated with these security enhancement measures have been paid
and will be paid by IGG separate and apart from other settlement
benefits. [GN]
JOHNSON & JOHNSON: Bid to Move HLF Suit to D.C. Super. Court Denied
-------------------------------------------------------------------
Judge Royce C. Lamberth of the U.S. District Court for the District
of Columbia refuses to remand the case, CHEMICAL TOXIN WORKING
GROUP INC., d/b/a HEALTHYLIVING FOUNDATION, Plaintiff v. JOHNSON &
JOHNSON and JOHNSON & JOHNSON CONSUMER INC., Defendants, Case No.
1:22-cv-1259-RCL (D.D.C.), to the Superior Court of the District of
Columbia.
Plaintiff Chemical Toxin Working Group Inc., d/b/a HealthyLivinG
Foundation ("HLF"), moves to remand the action to the Superior
Court. Defendants Johnson & Johnson and Johnson & Johnson Consumer
Inc. (together, "JJCI"), oppose remand, claiming the Court has
jurisdiction under the Class Action Fairness Act ("CAFA"), 28
U.S.C. Section 1332(d).
HLF is a non-profit public interest organization headquartered in
California. The Defendants are New Jersey-based corporations with
their principal place of business and headquarters in New Jersey.
On April 15, 2022, HLF filed a complaint in the Superior Court. It
alleges that JJCI deceptively labeled, marketed, and sold five
different baby hygiene products as free of phthalates when they
allegedly did contain phthalates of which JJCI knew, or should have
known.
HLF in the action claims to represent a putative class of "all
persons in the District of Columbia who purchased the Baby Products
at any time from three years preceding the date of the filing of
the Complaint to the time a class is notified in this action." It
further asserts that JJCI violated the D.C. Consumer Protection
Procedures Act, D.C. Code Section 28-3901 et seq. ("CPPA") and
breached its express and implied warranties.
Among other remedies, HLF's complaint seeks full monetary relief
available under the law and award of treble damages or $1,500 per
CPPA violation, whichever is greater, to HLF and all members of the
Class.
JJCI filed a Notice of Removal, pursuant to 28 U.S.C. Section
1332(d), to remove the case to the U.S. District Court for the
District of Columbia on the grounds that the class action satisfies
the requisites of CAFA -- minimal diversity, over 100 putative
class members, and an amount in controversy that exceeds $5 million
-- and therefore that the Court has original jurisdiction.
Subsequently, HLF filed a motion to remand the case back to
Superior Court. JJCI oppose the remand.
To resolve the motion to remand, Judge Lamberth must resolve three
issues: (1) whether there is minimal diversity between the parties;
(2) whether JJCI has shown that the amount in controversy exceeds
$5 million, (3) and whether the putative class has at least 100
members.
Judge Lamberth concludes that all three requirements are met, and
thus remand to Superior Court is inappropriate. First, he finds
that the putative class is comprised of District of Columbia
consumers, while JJCI are New Jersey-based corporations with their
principal place of business and headquarters in New Jersey and
incorporated in Delaware. Accordingly, he accepts these facts as
presented by the parties that neither shares common citizenship
that would lend to extinguish diversity between them. Therefore,
there is minimal diversity between the parties.
Second, Judge Lamberth finds JJCIs' amount in controversy
allegation, based on a 0.2% proportion of nationwide wholesale
sales figures relative to the population of the District of
Columbia compared with the nation's total population, was reached
in good faith and is reasonable as sustained by foregoing reasons
consistent with Section 1446(c)(2)(B). Therefore, he agrees with
JJCI and finds the amount in controversy does exceed the
jurisdictional threshold by the preponderance of the evidence.
Lastly, Judge Lamberth concludes that the putative class size meets
the numerosity requirement of CAFA. JJCI relies on the same
wholesale figures it uses to establish the amount in controversy,
based on a proportion of nationwide wholesale sales relative to the
population of the District of Columbia compared with the population
of the United States, which credibly suggest that there are more
than 100 members in this putative class. Use of those figures is
equally reasonable in the context of class size.
For the reasons he explained, Judge Lamberth denies HLF's motion to
remand the case to Superior Court. A separate Order will be issues
on this date.
A full-text copy of the Court's March 24, 2023 Memorandum Opinion
is available at https://tinyurl.com/2p8vxz6t from Leagle.com.
LENDINGTREE LLC: Bid to Compel Arbitration in Granados Suit Granted
-------------------------------------------------------------------
In the case, WILLY GRANADOS, individually and on behalf of all
others similarly situated, Plaintiff v. LENDINGTREE, LLC,
Defendant, Case No. 3:22-cv-504-MOC (W.D.N.C.), Judge Max O.
Cogburn, Jr., of the U.S. District Court for the Western District
of North Carolina, Charlotte Division, grants the Defendant's
Motion to Compel Arbitration and Stay Claims.
The comes before the Court on the Plaintiff's Objection to the
Magistrate Judge's Memorandum and Recommendation, which recommends
that the Court grants the Defendant's Motion to Compel Arbitration
and Stay Claims.
The case is a class action lawsuit, in which the Plaintiff brings
various claims against the Defendant based on purported harms
stemming from a 2022 cyberattack perpetrated against LendingTree,
during which third-party criminals gained "unauthorized access" and
were able to exfiltrate highly sensitive and personal information"
of current, former, and prospective LendingTree consumers. In a
motion to compel arbitration, the Defendant contends that, as a
LendingTree consumer, the Plaintiff's claims are encompassed by a
mandatory arbitration clause in LendingTree's Terms of Use
Agreement, and the Plaintiff is, therefore, required to arbitrate
the claims brought.
On Feb. 2, 2023, United States Magistrate Judge David S. Cayer
entered a Memorandum and Recommendation, recommending that the
Court grants the Defendant's Motion to Compel Arbitration and Stay
Claims. The Plaintiff filed an Objection to the magistrate judge's
decision on Feb. 15, 2023. The Defendant filed a response on March
1, 2023.
Judge Cogburn has carefully reviewed the magistrate judge's order
and the parties' respective briefs, and he finds that the
magistrate judge's decision was neither erroneous nor contrary to
law. Judge Cayer correctly applied the law in concluding that
Plaintiff is bound by the arbitration clause at issue. Accordingly,
Judge Cogburn overrules the Plaintiff's Objection, and adopts the
Memorandum and Recommendation. To this extent, the Defendant's
Motion to Compel Arbitration and Stay Claims is granted.
A full-text copy of the Court's March 28, 2023 Order is available
at https://tinyurl.com/4sx7r5re from Leagle.com.
LUNDBECK LLC: E.D. Virginia Grants Bids to Dismiss MSP RICO Suit
----------------------------------------------------------------
In the case, MSP RECOVERY CLAIMS, SERIES LLC, et al., Plaintiffs v.
LUNDBECK LLC, et al., Defendants, Civil Action No. 3:22-cv-422-HEH
(E.D. Va.), Judge Henry E. Hudson of the U.S. District Court for
the Eastern District of Virginia, Richmond Division:
a. grants the Defendants' Motions to Dismiss;
b. denies the Plaintiffs' Motion for Temporary Restraining
Order and Preliminary Injunction; and
c. grants the Plaintiffs' Motion to Supplement the Complaint.
The case is brought by purported purchasers of third-party
healthcare payors' claims. At issue is whether a pharmaceutical
manufacturer, Lundbeck; a data analysis company, Theracom LLC; and
a now defunct patient assistance nonprofit charity, Caring Voice
Coalition, Inc. ("CVC") (collectively, "Defendants") worked in
concert to artificially inflate the unit price and quantity
dispensed of Xenazine -- a specialty drug used to treat symptoms
associated with Huntington's Disease.
Lundbeck manufactures specialty neuroscience medications including
Xenazine, a medication used to treat chorea (involuntary muscle
movement) associated with Huntington's Disease. Xenazine was the
only drug specifically "indicated" to treat that disease until
2015, when generic competitors entered the market. CVC was a
nonprofit charity created to assist qualifying patients afford the
prescription co-pay obligations imposed by the patients'
third-party insurance companies. CVC is now defunct. Adira was
established in 2018 and is essentially a replica of CVC. While the
Plaintiffs do not allege that Adira played a role in the alleged
RICO enterprise, they assert that Adira is the successor
corporation of CVC and thus jointly and severally liable to them.
Lundbeck contracted with Theracom, which led the Xenazine
Information Center ("XIC"). The XIC helped facilitate patient
access to Lundbeck's patient assistance programs and referrals to
independent charitable co-pay foundations like CVC. The Plaintiffs
allege Theracom unlawfully transferred information between Lundbeck
and CVC.
The Plaintiffs are a collection of Delaware businesses that have
not interacted or conducted business with any of the Defendants in
the case at hand. They seek to bring this suit on behalf of
third-party payors that provide prescription drug benefits to
patients.
The Plaintiffs maintain that the Defendants' conduct injured their
Assignors because the Assignors were forced to reimburse patients
for "artificially inflated quantities" of Xenazine at
supra-competitive prices. Their theory is that Lundbeck donated
money to CVC to provide "kickbacks" to patients and pay for
Xenazine co-payments. Lundbeck would then use Theracom to
unlawfully facilitate the transmission of patient information
between Lundbeck and CVC to facilitate return on investment
calculations. The Plaintiffs seek to leverage a no-fault settlement
between Lundbeck and the Department of Justice ("DOJ") into a
treble-damages civil class action suit under the Racketeer
Influenced and Corrupt Organizations Act ("RICO") and various state
laws.
The Plaintiffs allege several counts in total -- five against all
Defendants and two against only CVC and Adira. The five counts
against all Defendants are: a substantive RICO claim under 18
U.S.C. Section 1962(c) (Count I); a RICO conspiracy claim under 18
U.S.C. Section 1962(d) (Count II); consumer protection claims under
the laws of twelve states: California, Connecticut, Florida,
Illinois, Massachusetts, Michigan, New York, Ohio, Pennsylvania,
Puerto Rico, South Carolina, and Wisconsin (Count III); an unjust
enrichment claim "under state law" (Count IV); and a claim under
Florida's state RICO law, the Civil Remedies for Criminal Practices
Act, Fla. Stat. 7701, et seq. (Count V). The two counts against CVC
and Adira are: a violation of Va. Stat. Section 55.1-400, et seq.
(Count VI); and successor liability as to Adira (Count VII).
The case is presently before the Court on Lundbeck, Theracom, and
Adira's separate Motions to Dismiss, filed on Sept. 14, 2022; the
Plaintiffs' Motion for TRO and Preliminary Injunction, filed on
Jan. 4, 2023; and the Plaintiffs' Motion to Supplement the
Complaint, filed on Feb. 8, 2023. On Jan. 17, 2023, the Court heard
oral argument on all pending motions except for the Plaintiffs'
Motion to Supplement Complaint, which was filed after the hearing
took place.
The Defendants present several arguments supporting their Motions
to Dismiss. First, they claim that the Plaintiffs lack standing to
sue because the Plaintiffs did not plead sufficient information
about their alleged Assignors' purported injuries and failed to
show whether valid assignments exist. As to the state-law consumer
protection claims, the Defendants maintain that the Plaintiffs lack
standing to sue because the Plaintiffs do not reside and did not
make purchases in the respective states. Second, they argue that
the Plaintiffs have not identified an injury in fact traceable to
Defendants that the Assignors have suffered.
Third, they assert that the Plaintiffs' claims are barred by the
statute of limitations. Fourth, they contend that the Plaintiffs'
RICO claims should be dismissed because (1) the Plaintiffs'
Assignors were indirect purchasers; (2) the Plaintiffs failed to
allege a qualifying predicate act and requisite pattern of
racketeering; (3) the Plaintiffs failed to comply with Federal Rule
of Civil Procedure 9(b); (4) the Plaintiffs failed to allege a RICO
enterprise; and, lastly, (5) the Plaintiffs failed to demonstrate a
proximate, economic injury. Fifth, the Defendants claim that the
Plaintiffs' tag-along state law claims should be dismissed for
independent reasons. Finally, Adira argues Counts 6 and 7 should be
dismissed because the Plaintiffs' RICO claims fail to state a claim
upon which relief can be granted.
Judge Hudson states that while many of the principles governing the
legal theories underlying the lawsuit have been developed in
federal courts in the United States, no court within the Fourth
Circuit has grappled with the issues the case presents. The case is
a venture into a new frontier.
Judge Hudson concludes that the Complaint fails to adequately plead
the Defendants' alleged conduct proximately caused
indirect-purchaser Plaintiffs' purported damages. He further finds
that any amendment would be futile based on the facts and
circumstances of the case and dismisses the Plaintiffs' Complaint
with prejudice.
The parties have extensively briefed on the merits of the case. The
Defendants filed three separate Motions to Dismiss. The Plaintiffs
responded to each of them separately, filing a total of 88 pages in
opposition, with 25 separate exhibits. The Court previously granted
the Plaintiffs' Motion for Leave to File Sur-replies to Lundbeck's
Motion to Dismiss and Theracom's Motion to Dismiss. Both Defendants
responded to those motions for leave to file surreplies, as well.
Before oral argument, Lundbeck filed a notice of supplemental
authority and the Plaintiffs filed a Motion for a TRO and
Preliminary Injunction against Adira, which addressed the
likelihood of success on the merits. Following oral argument, the
Plaintiffs filed their Motion to Supplement Complaint to which
Lundbeck and Theracom responded, and the Plaintiffs replied.
Judge Hudson holds that there is no need for further briefing for
the Court to reach a final judgment on the merits of the legal
issues presented, and, as stated, any further amendment would be
futile.
An appropriate Order will accompany the Memorandum Opinion.
A full-text copy of the Court's March 24, 2023 Memorandum Opinion
is available at https://tinyurl.com/nk5fsh72 from Leagle.com.
MACPAW INC: Crumwell Files ADA Suit in S.D. New York
----------------------------------------------------
A class action lawsuit has been filed against MacPaw, Inc. The case
is styled as Denise Crumwell, on behalf of herself and all other
persons similarly situated v. MacPaw, Inc., Case No. 1:23-cv-02615
(S.D.N.Y., March 29, 2023).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
MacPaw, Inc. -- https://macpaw.com/ -- operates as a software
development company. The Company develops and distributes software
solutions for macOS and iOS.[BN]
The Plaintiff is represented by:
Dana Lauren Gottlieb, Esq.
GOTTLIEB & ASSOCIATES
150 E. 18 St., Suite PHR
New York, NY 10003
Phone: (917) 796-7437
Fax: (212) 982-6284
Email: danalgottlieb@aol.com
MAPLEWOOD, MO: Summary Judgment Bid in Webb Denied W/o Prejudice
----------------------------------------------------------------
In the case, CECELIA ROBERTS WEBB, et al., Plaintiffs v. THE CITY
OF MAPLEWOOD, MISSOURI, Defendant, Case No. 4:16 CV 1703 CDP (E.D.
Mo.), Judge Catherine D. Perry of the U.S. District Court for the
Eastern District of Missouri, Eastern Division, denies without
prejudice to refiling if necessary:
a. the Defendant's Motion for Summary Judgment and Motion to
Strike Plaintiffs' Unauthorized Additional (Alleged)
Material Facts; and
b. the Plaintiffs' Motion to Strike the Declaration of Brian
Dunlop.
On June 27, 2022, the parties announced to the Court that the class
action had settled. At the time, various motions were pending --
specifically, the Defendant's motion for summary judgment and
motion to strike the Plaintiffs' additional material facts, and the
Plaintiffs' motion to strike the declaration of Judge Brian
Dunlop.
Judge Perry granted the parties' request that she stays ruling on
these motions until briefing on approval of the settlement was
completed. In her Order preliminarily approving the settlement, she
continued the stay in the action until final approval. The hearing
on final approval is set for April 5, 2023.
The time for filing written objections to the settlement agreement
and to the applications for fees, costs, and service awards has
passed, and no objections were filed. And no class member has filed
a notice of intention to appear at the final approval hearing.
Therefore, no opposition to the settlement agreement will be voiced
by any class member at the hearing. In view of this circumstance,
Judge Perry sees no reason why the pending motions must remain on
the docket. She therefore denies them, but without prejudice to be
refiled and reinstated in the event the settlement in the class
action is not finally approved.
A full-text copy of the Court's March 28, 2023 Memorandum & Order
is available at https://tinyurl.com/mvkts9tx from Leagle.com.
MARTIN SPORTS: Anderson Wins Class Certification Bid in Glynn Suit
------------------------------------------------------------------
In the case captioned as COLLEEN A. GLYNN, CHRISTOPHER P. WELLING,
in their capacities as Trustees and Fiduciaries of ERISA Plans, and
DOUGLAS C. ANDERSON, on his own behalf and on behalf of others
similarly situated, Plaintiffs v. MARTIN SPORTS & ENTERTAINMENT,
LLC, DAVID MARTIN, and THERESA MARTIN, Defendants, Civil Action No.
1:19-cv-12189-IT (D. Mass.), Judge Indira Talwani of the U.S.
District Court for the District of Massachusetts grants Douglas
Anderson's Motion to Certify the Class or in the Alternative to Add
Forty-Three Additional Plaintiffs.
In this action, Colleen Glynn and Christopher Welling, in their
capacity as Trustees and Fiduciaries of certain employee benefit
plans, bring a claim against Defendant Martin Sports &
Entertainment, LLC alleging delinquent contributions under Sections
502(a)(3) and 515 of the Employee Retirement Income Security Act of
1974. Douglas Anderson, on his own behalf and on behalf of others
similarly situated, brings a claim against David Martin and Theresa
Martin and Martin Sports for failure to pay wages pursuant to
Massachusetts General Laws.
In the related action, International Alliance of Theatrical Stage
Employees, Moving Picture Technicians, Artists and Allied Crafts,
Local No. 11 v. Martin Sports & Entertainment, LLC, 19-cv-12579,
the International Alliance of Theatrical Stage Employees, Moving
Picture Technicians, Artists and Allied Crafts, Local No. 11 (Local
11) claims that Martin Sports breached a collective bargaining
agreement entered into pursuant to Section 301(a) of the Labor
Management Relations Act. The Court consolidated the two matters
for summary judgment briefing and adopted in full the Background
set forth in the court's Memorandum & Order.
Anderson moves to certify a class, under Rule 23 of the Federal
Rules of Civil Procedure, comprised of the Local 11-referred
employees who allegedly provided services to Martin Sports in May
2019 and were not compensated by Martin Sports for their services.
Anderson moves in the alternative for permissive joinder under Rule
20 of the Federal Rules of Civil Procedure of the 43 Local
11-referred employees listed on the ART invoices for Martin Sports
in May 2019.
The Court finds that the numerosity and commonality requirement has
been met in this case. Moreover, the Court finds that Anderson's
claim is typical of the claims of the putative class members.
Accordingly, the Court is prepared: (i) to certify a class
comprised of the Local 11-referred employees who were identified on
the ART invoices as having provided services for Martin Sports in
May 2019 and who were not compensated by Martin Sports for their
services, and to appoint Anderson's counsel, Gabriel O. Dumont, of
Feinberg, Dumont & Brennan, as class counsel under Rule 23(g) or
(ii) to allow counsel to file a Notice of Joinder under Rule 20 as
to any of these individuals who seeks to opt in.
In their Motion for Summary Judgment, Defendants David Martin and
Theresa Martin contend that the Wage Claim against them should be
dismissed where neither was a party to the 2019 Agreement, related
trust agreement, or the agreement between ART and Martin Sports.
However, the Court finds that "the Wage Act applies to David Martin
as a matter of law where he is the President and CEO of Martin
Sports. . . Theresa Martin was an administrative assistant for
Martin Sports at the time each respective declaration was signed,
the Declarations are silent as to the role Theresa Martin had in
the company at the time the 2019 Agreement was entered into. . .
However, in her correspondence with Colleen Glynn in execution of
the 2019 Agreement, Theresa Martin held herself out as 'V.P.' of
Martin Sports. Moreover, the record shows that Theresa Martin
negotiated the 2019 Agreement with Glynn. . . Thus, a fact finder
could determine that she is an 'agent having the management of'
Martin Sports for purposes of the statute."
On the other hand, the Plaintiffs contend that summary judgment is
appropriate as to Trustee Plaintiffs' claims under ERISA Sections
502(a)(3) and 515 and Anderson's claim under the Wage Act where
"there is no dispute that Martin Sports entered into a contract
with Local 11; that the contract provided that Martin Sports would
pay certain wages and make certain contributions to various ERISA
employee benefit plans; that Local 11-referred employees provided
services under the terms of the contract; and that Martin Sports
failed to pay any of the wages required by the contract to the
Local 11-referred employees and failed to make the required
contributions to the employee benefit plans on behalf of the Local
11-referred employees."
Accompanying the Plaintiffs' motion for summary judgment is: (i)
the Affidavit of Colleen A. Glynn in Support of Plaintiffs' Motion
for Summary Judgment and related business records; (ii) ART payroll
records related to the hours worked by Local 11 members for Martin
Sports on May 9, 12, 27, and 29, 2019; and (iii) Plaintiffs' Local
Rule 26.1(b) Disclosures, which provide itemization of economic
loss and computation of damages related to the events at issue.
The Court finds that summary judgment in favor of Trustee
Plaintiffs as to the claims under ERISA, and in favor of Anderson,
on his own behalf and on behalf of the putative class members, as
to the claims under Mass. Gen. Laws Ch. 149 is proper in the
amounts set forth in the ART generated invoices where Martin Sports
neither disputed the two invoices within the time required under
Martin Sports' agreement with ART nor paid the two invoices within
the time required under the 2019 Agreement.
Finally, Anderson's Wage Act claim brought on behalf of himself and
the class members as to Theresa Martin remains pending.
A full-text copy of the Memorandum & Order dated March 22, 2023, is
available https://tinyurl.com/bdhbmaay from Leagle.com.
MCDONALD'S CORPORATION: Clark Suit Transferred to N.D. Illinois
---------------------------------------------------------------
The case styled as Larry Clark, Joseph Hauser, Lydia Johnson, Linda
Cavazos, individually, and on behalf of those similarly situated v.
McDonald's Corporation, Case No. 3:22-cv-00628 was transferred from
the U.S. District Court for the Southern District of Illinois, to
the U.S. District Court for the Northern District of Illinois on
March 28, 2023.
The District Court Clerk assigned Case No. 1:23-cv-01939 to the
proceeding.
The nature of suit is stated as Other Fraud.
McDonald's Corporation --
https://corporate.mcdonalds.com/corpmcd/home.html -- is an American
multinational fast food chain, founded in 1940 as a restaurant
operated by Richard and Maurice McDonald, in San Bernardino,
California.[BN]
The Plaintiffs are represented by:
Robert Allen Smith, Jr., Esq.
SMITH LAW FIRM, PLLC
300 Concourse Boulevard, Suite 104
Ridgeland, MS 39157
Phone: (601) 952-1422
Email: asmith@smith-law.org
- and -
Steffan T. Keeton, Esq.
THE KEETON FIRM LLC
100 South Commons Suite 102
Pittsburgh, PA 15212
Phone: (888) 412-5291
Email: stkeeton@keetonfirm.com
The Defendants are represented by:
Trenton H. Norris, Esq.
ARNOLD & PORTER KAYE SCHOLER LLP
Three Embarcadero Center, 10th Floor
San Francisco, CA 94111
Phone: (415) 471-3303
Email: trent.norris@arnoldporter.com
- and -
Lori B. Leskin, Esq.
ARNOLD & PORTER KAYE SCHOLER LLP
250 West 55th
New York, NY 10019
Phone: (212) 836-8000
Email: lori.leskin@apks.com
- and -
Peter Vogel, Esq.
ARNOLD & PORTER KAYE SCHOLER LLP
70 W. Madison Street, Suite 4200
Chicago, IL 60602
Phone: (312) 583-2458
Email: peter.vogel@arnoldporter.com
MERCEDES-BENZ USA: King Files Suit in N.D. Georgia
--------------------------------------------------
A class action lawsuit has been filed against Mercedes-Benz USA,
LLC, et al. The case is styled as Stanley King, individually and on
behalf of those similarly situated v. Mercedes-Benz USA, LLC,
Mercedes-Benz Group AG, Case No. 1:23-cv-01310-SEG (N.D. Ga., March
28, 2023).
The nature of suit is stated as Contract Product Liability for
Breach of Warranty.
Mercedes-Benz -- https://www.mbusa.com/en/home -- combines luxury
with performance across the full line of models including luxury
sedans, SUVs, coupes, roadsters, convertibles & more.[BN]
The Plaintiff is represented by:
Jeffrey L. Spector, Esq.
William G. Caldes, Esq.
SPECTOR ROSEMAN & KODROFF, P.C.
2001 Market Street, Suite 3420
Philadelphia, PA 19103
Phone: (215) 496-0300
Fax: (215) 496-6611
Email: jspector@srkattorneys.com
bcaldes@srkattorneys.com
- and –
Ketan A. Patel, Esq.
CORPUS LAW PATEL
P.O. BOX 724713
Atlanta, GA 31139
Phone: (678) 597-8020
Email: kp@corpus-law.com
MFK LLC: Worthy Sues Over Unpaid Overtime Wages
-----------------------------------------------
Brittany Worthy, on behalf of herself and all others
similarly-situated v. MFK, LLC, d.b.a MOBILELINK, MOBILELINK LLC,
and MOBILELINK OHIO, LLC, Case No. 4:23-cv-01153 (S.D. Tex., March
29, 2023), is brought for the recovery of unpaid overtime wages
under the Fair Labor Standards Act ("FLSA").
The Plaintiff regularly worked more than 40 hours per week. The
Plaintiff were hired by the Defendants as Sales Personnel to
perform sales and other related duties inside Defendants' retail
stores. The Plaintiff were paid on an hourly basis at an hourly
rate and also received a percentage of their sales as a commission.
By failing to include commissions in the calculation of overtime
paid to the Plaintiff, the Defendants deprived the Plaintiff of
overtime pay to which they were entitled, in violation of the FLSA.
The Defendants systematically failed to pay the Plaintiff and other
similarly situated employees the proper overtime rate, says the
complaint.
The Plaintiff was employed by the Defendants as a Retail Store
Manager.
MFK, LLC is a Texas Corporation.[BN]
The Plaintiff is represented by:
Chris P. Wido, Esq.
THE SPITZ LAW FIRM, LLC
25825 Science Park Drive, Suite 200
Beachwood, OH 44122
Facsimile: (216) 291-5744
Phone: (216) 291-4744
Email: Chris.Wido@spitzlawfirm.com
MOSAIC DISTRIBUTORS: Slade Files ADA Suit in S.D. New York
----------------------------------------------------------
A class action lawsuit has been filed against Mosaic Distributors,
LLC. The case is styled as Linda Slade, individually and as the
representative of a class of similarly situated persons v. Mosaic
Distributors, LLC, Case No. 1:23-cv-02619 (S.D.N.Y., March 29,
2023).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Mosaic Distribution LLC -- http://www.mosaicdist.com/-- is a
premier sales and service provider for high-technology products in
the fields of single crystal X-ray diffraction, powder x-ray
diffraction, and X-ray accessories for manufacturers looking to
increase their presence in the US and Canada.[BN]
The Plaintiff is represented by:
Dan Shaked, Esq.
SHAKED LAW GROUP, P.C.
14 Harwood Court, Suite 415
Scarsdale, NY 10583
Phone: (917) 373-9128
Email: shakedlawgroup@gmail.com
NATIONAL BANK: Kalloghlian Myers Files Breach Class Action Suit
---------------------------------------------------------------
Kalloghlian Myers LLP has filed a class action lawsuit against
National Bank Investments Inc. and NatCan Trust Company ("National
Bank") on behalf of all persons who purchased units of National
Bank mutual funds with an investment advisor.
The class action alleges that National Bank breached its trust
obligations to investors by wrongfully paying commissions from its
mutual funds to benefit itself. The lawsuit claims that the
commissions were inappropriately paid to discount brokerages for
providing advice to purchasers, even though those brokerages were
not authorized to provide advice. The claim alleges that these
commissions were instead improperly used as incentives to encourage
discount brokerages to sell National Bank mutual funds, violating
National Bank's trust obligations to investors.
The class action alleges that these improper commission payments
from National Bank mutual funds reduced the mutual funds' assets,
year after year, causing all mutual fund investors to experience
investment losses.
"Canadians saving for their retirement need to be careful that
their bank is watching out for their interest," said Garth Myers,
one of the lawyers seeking to represent the class. "We allege
National Bank's conduct over many years hurt the retirement savings
of thousands of Canadians. We are doing what we can to seek justice
and compensation."
If you purchased a National Bank mutual fund before June 2022, you
might be included in this lawsuit. To register for updates and to
find out more information, contact Kalloghlian Myers LLP. [GN]
NEW YORK, NY: Admin. of Sierra Suit Settlement Remains Confidential
-------------------------------------------------------------------
Judge Coleen McMahon for the U.S. District Court for the Southern
District of New York has issued a Confidentiality Stipulation and
Order Concerning the Administration of Class Action Settlement in
the case captioned as SAMIRA SIERRA, AMALI SIERRA, RICARDO
NIGAGLIONI, ALEX GUTIERREZ, and CHARLES WOOD, on behalf of
themselves and all others similarly situated, Plaintiffs v. CITY OF
NEW YORK, a municipal entity; and BILL DE BLASIO, TERENCE A.
MONAHAN, KENNETH LEHR, ROBERT GALLITELLI, HARRY WEDIN, JOHN
D'ADAMO, GERARD DOWLING, JULIO DELGADO, KENNETH RICE, THOMAS
GARGUILO, JOHN MIGLIACCIO, THOMAS MOSHER, Defendants, Case Nos.
20-CV-10291 (CM)(GWG), 20-CV-10541 (CM)(GWG) (S.D.N.Y.).
The Parties' Stipulation of Settlement and Order dated Feb. 28,
2023, which set forth the terms and conditions for a proposed class
settlement, granted preliminary approval of the proposed Class
Action Settlement, and appointed Rust Consulting, Inc. as Claims
Administrator.
For purposes of disseminating notice to members of the Settlement
Class pursuant to Rule 23(c)(2)(B) of the Federal Rules of Civil
Procedure, and to properly administer the Class, the Parties and
the Claims Administrator need access to information maintained New
York City Police Department and certain other City agencies,
including information from relevant records that may be protected
by federal, state and local laws and which cannot be disclosed
without appropriate authority.
Accordingly, the Court authorized the Parties to provide the Class
Administrator with the information required to comply with the
terms and responsibilities set forth in the Stipulation. This
includes, but is not limited to, the information described in
paragraph 51 of the Stipulation, and the full names, aliases (if
known), Social Security Numbers (when appropriate), dates of birth,
summons numbers, arrest numbers, NYSID numbers and last known
addresses of Class Member.
However, any information provided to the Claims Administrator
solely for purposes of administering the settlement in this Action
will remain confidential. Further, this information may not be
disclosed to anyone except Class Counsel, Defendants' Counsel,
certain City agencies (including but not limited to, NYPD, Human
Resources Administration, and the Comptroller's Office), the Claims
Administrator, and, if necessary, the Court (with an application to
file under seal).
Moreover, the records in the possession of the NYPD and produced in
discovery to Class Counsel, pertaining to members of the Settlement
Class, and that are sealed are unsealed for the limited purpose of
allowing the Parties to transmit any identifying information
pertaining to members of the Settlement Class contained in the
sealed records.
A full-text copy of the Stipulation and Order dated March 21, 2023,
is available https://tinyurl.com/55n4jf8w from Leagle.com.
NILUU LLC: Reid Files ADA Suit in S.D. New York
-----------------------------------------------
A class action lawsuit has been filed against Niluu LLC. The case
is styled as Nadreca Reid, individually and as the representative
of a class of similarly situated persons v. Niluu LLC, Case No.
1:23-cv-02616 (S.D.N.Y., March 29, 2023).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Niluu -- https://niluu.com/ -- offers PETA approved vegan silk-wear
marrying the archetypal sophistication inherent to traditional silk
with an intentional twist.[BN]
The Plaintiff is represented by:
Dan Shaked, Esq.
SHAKED LAW GROUP, P.C.
14 Harwood Court, Suite 415
Scarsdale, NY 10583
Phone: (917) 373-9128
Email: shakedlawgroup@gmail.com
NYGG (ASIA): Puddu's Class Notice OK'd; Fairness Hearing on Oct. 6
------------------------------------------------------------------
In the case, JOSEPH PUDDU, MARK GHITIS, VALERY BURLAK, and ADAM
BUTTER, Plaintiffs v. NYGG (ASIA) LTD. and BENJAMIN TINBIANG WEI
a/k/a/ BENJAMIN WEY, Defendants, Case No. 15cv8061 (DLC)
(S.D.N.Y.), Judge Denise Cote of the U.S. District Court for the
Southern District of New York approves the revised Class Notice.
On Feb. 3, 2023, the Lead Plaintiffs moved for preliminary approval
of a class action settlement. On March 9, the Court provided a
revised notice of class action settlement and ordered the parties
to submit any revisions by March 15. On March 24, Defendant Wey
submitted a letter noting the parties' approval of the March 9
Notice, subject to three typographical corrections.
Accordingly, Judge Cote approves the revised March 9 Notice,
attached as Exhibit B to Defendant Wey's March 24 letter.
A Fairness Hearing will be held on Oct. 6, 2023, at 10:00 a.m., in
Courtroom 18B, 500 Pearl Street, New York, NY 10007.
The Lead Plaintiffs will submit a revised proposed order for
preliminary approval of class settlement. The revised proposed
order will reference the corrected revised notice of class action
settlement submitted by Defendant Way on March 24. Any attachments
referenced in the revised proposed order must be attached to the
revised proposed order.
The Lead Plaintiffs will also submit a revised schedule for notice
and approval of the class action settlement consistent with the
Fairness Hearing's October 6 date.
A full-text copy of the Court's March 24, 2023 Order is available
at https://tinyurl.com/2p8uxkby from Leagle.com.
OPPORTUNITY FINANCIAL: Wins Bid for Arbitration in Johnson Suit
---------------------------------------------------------------
In the case, SHERIE JOHNSON, an individual on behalf of herself and
all persons similarly situated, Plaintiff v. OPPORTUNITY FINANCIAL,
LLC, a limited liability company, et al., Defendants, Civil Action
No. 3:22cv190 (E.D. Va.), Judge Robert A. Payne of the U.S.
District Court for the Eastern District of Virginia, Richmond
Division, grants Opportunity Financial's motion to compel
arbitration.
Johnson filed a Class Action Complaint and Demand for a Jury Trial
regarding two loans allegedly issued by Opportunity Financial. Her
substantive claims center around the interest rate (160%)
associated with her loans and Opportunity Financial's alleged
subterfuge in issuing them. Opportunity Financial denies that it
issued the loans and does not concede that the interest rate is as
alleged. Johnson is bringing the lawsuit as a Class Action under
Federal Rule of Civil Procedure 23.
On Sept. 28, 2022, the Court held a hearing on the Motion. After
the hearing, it ordered additional briefing on the question of Utah
choice-of-law rules which the parties filed. On Oct. 14, 2022, the
Court struck all the existing briefing (both the original and
supplemental briefs) and ordered new briefing on the motion. The
new briefing has been filed.
The loans both include an Arbitration Clause, the focus of the
Motion. The parties agree that the arbitration agreements are
essentially identical (the only discernable discrepancy is a
changed phone number). The arbitration components of the loans are
lengthy. Johnson states that she signed the loan on a computer but
did not read it before signing. The loans contain a choice of law
provision designating federal and Utah law as the governing law.
The Clause itself is only subject to the Federal Arbitration Act
("FAA"). The choice-of-law provision is separate from the Clause.
The matter is before the Court for the motion to compel
arbitration.
Both parties agree that the Clause is governed by the FAA, 9 U.S.C.
Section 2, which likewise governs any contract evidencing a
transaction involving commerce. The case involves a plaintiff who
is a citizen of Virginia and a defendant whose principal place of
business is Illinois. Therefore, the Clause is properly governed by
the FAA. And, in conformity with the FAA, Judge Payne applies
Virginia contract law to determine if the Clause is binding.
The Plaintiff outlines two reasons why the agreement should not be
upheld: (1) it waives her Racketeer Influenced and Corrupt
Organizations Act ("RICO") claims; and (2) it is unconscionable
under Virginia law.
Neither argument is persuasive, Judge Payne opines. First, he says
the purported waiver of the Plaintiff's rights under RICO does not
invalidate the agreement. The fact that Johnson may have a harder
time winning her claim if the case is sent to arbitration is not a
basis for finding that the Clause is not valid. Second, The
agreement is not unconscionable under Virginia law. None of the
Plaintiff's proffered reasons make the arbitration agreement
substantively unconscionable. That alone is sufficient to foreclose
the claim of invalidity.
Lastly, while state law governs the formation of contracts, federal
substantive law governs arbitrability. Under federal law, the party
resisting arbitration bears the burden of proving that the claims
at issue are unsuitable for arbitration. Johnson makes no attempt
to argue that, if the arbitration clause is upheld, any of her
claims should stay with the Court. Because the presumption is that
claims are arbitrable, all claims will go to arbitration.
Both parties agree that, if the Arbitration Clause is upheld, the
Court should dismiss the case without prejudice. For the foregoing
reasons, Judge Payne grants the motion to compel arbitration, and,
as the parties suggest, the case is dismissed without prejudice.
A full-text copy of the Court's March 24, 2023 Memorandum Opinion
is available at https://tinyurl.com/2pmvxyfm from Leagle.com.
OSF HEALTHCARE: Fails to Pay Overtime Pay, Hanson Suit Alleges
--------------------------------------------------------------
CHRISTINE HANSON, individually and on behalf of all others
similarly situated v. OSF HEALTHCARE SYSTEM, Defendant, Case No.
1:23-cv-01122-MMM-JEH (C.D. Ill., March 28, 2023) is an action
against the Defendant's failure to pay the Plaintiff and the class
overtime compensation for hours worked in excess of 40 hours per
week.
Plaintiff Hanson was employed by the Defendant as a medical office
assistant.
OSF HEALTHCARE SYSTEM provides health care services. The Company
manages a network of hospitals, clinics, and physicians for the
provision of emergency care, women's health, cancer care, cardiac
services, neurosciences, and pediatric services. [BN]
The Plaintiff is represented by:
Douglas M. Werman, Esq.
Maureen A. Salas, Esq.
WERMAN SALAS P.C.
77 W. Washington St., Suite 1402
Chicago, IL 60602
Telephone: (312) 419-1008
Email: dwerman@flsalaw.com
msalas@flsalaw.com
- and -
Michael A. Josephson, Esq.
Andrew W. Dunlap, Esq.
JOSEPHSON DUNLAP LLP
11 Greenway Plaza, Suite 3050
Houston, TX 77046
Telephone: (713) 352-1100
Facsimile: (713) 352-3300
Email: mjoesphson@mybackwages.com
adunlap@mybackwages.com
- and -
Richard J. (Rex) Burch, Esq.
BRUCKNER BURCH PLLC
8 Greenway Plaza, Suite 1500
Houston, TX 77046
Telephone: (713) -877-8788
Email: rburch@brucknerburch.com
- and -
William C. (Clif) Alexander, Esq.
Austin W. Anderson, Esq.
ANDERSON ALEXANDER PLLC
101 N. Shoreline Blvd., Suite 610
Corpus Christi, TX 78401
Telephone: (361)452-1279
Facsimile: (361) 452-1284
Email: clif@a2xlaw.com
austin@a2xlaw.com
PALANTIR TECHNOLOGIES: Briefing on Bid to Toss Cupat Suit Deferred
------------------------------------------------------------------
Judge Charlotte N. Sweeney the U.S. District Court for the District
of Colorado grants the motion to defer briefing on the Defendants'
motion to dismiss filed by the Defendants in the case captioned as
MINCHIE GALOT CUPAT, individually and on behalf of all others
similarly situated, Plaintiff v. PALANTIR TECHNOLOGIES, INC.,
ALEXANDER C. KARP, DAVID GLAZER, and SHYAM SANKAR, Defendants, Lead
Civil Action No. 1:22-cv-02384-CNS-SKC, Consolidated with Civil
Action No. 1:22-cv-02805-CNS-SKC, No. 1:22-cv-02893-CNS-SKC (D.
Colo.).
The Defendants: Palantir Technologies Inc., Alexander C. Karp,
David Glazer, Shyam Sankar, Kevin Kawasaki, Peter Thiel, Stephen
Cohen, Alexandra Schiff, Alexander Moore, and Spencer Rascoff filed
the instant deferral motion seeking to defer briefing Defendants'
dismissal motion pending the United States Supreme Court's
forthcoming decision in Slack Technologies, LLC v. Pirani, 143
S.Ct. 542 (2022) (granting certiorari). Although styled as a
"motion to defer," the Defendants essentially seek a stay of the
parties' Schedule for Consolidated Complaint and Response.
The Court agrees with the Defendants' contention that the
Plaintiffs would not be prejudiced by a "modest adjournment" in the
parties' briefing schedule, given that the stay would last "no more
than a few months," and for this reason favors granting a stay.
The Court explains that "the Supreme Court granted certiorari in
Slack on Dec. 12, 2023, and is expected to issue its decision by
June 2023. Any possible prejudice to Plaintiffs that will result
from a three-month stay of the parties' briefing schedule on the
Defendants' dismissal motion is "minimal," given that the Slack
decision will be issued by June 2023." In general, the Court agrees
with Plaintiffs that "with passing time, there remains a risk of
lost and destroyed evidence, as well as fading witness memories."
However, the Court points out that "this case is in its early
stages. . . this is not a case where a stay would be "indefinite" .
. . Therefore. . . the "odds" that "evidence is lost" is minimal,
given the definite and short length of a stay the Court would
impose pending the Supreme Court's decision in Slack."
Next, the Court finds that the Defendants have made a showing of
"prejudice that would be caused by the denial of a stay. . . given
Plaintiffs' acknowledgment that Slack will affect the Court's
analysis of their Securities Act claims -- the "denial of stay
would require both parties to expend significant resources to
litigation" on an issue that stands to be resolved by the Supreme
Court within approximately three months. . . Accordingly. . .
Defendants have shown that it would suffer hardship and inequity
absent the granting of a stay."
Finally, the Court finds that the orderly course of justice favors
granting a stay. The Court agrees with the Defendants that granting
a stay will simplify the issues presented to the Court in their
dismissal motion -- Slack is "squarely on point" to an issue that
the Plaintiffs' Securities Act claims present, and for this reason,
the orderly course of justice weighs in favor of granting a stay of
the briefing schedule on Defendants' dismissal motion. The Court
reasons that "it would be -- as the Defendants contend -- a waste
of both parties' 'time and money' to litigate the dismissal motion
'only to have to do it all again' because the parties and the Court
were proceeding under a legal framework that the Supreme Court may
determine does not apply at all."
A full-text copy of the Order dated March 21, 2023, is available
https://tinyurl.com/ydx6w7sr from Leagle.com.
PHILADELPHIA, PA: Absent Class Members' Bid to Intervene Denied
---------------------------------------------------------------
Judge Harvey Bartle, III, of the U.S. District Court for the
Eastern District of Pennsylvania denies the motion to intervene
filed by Mark Fultz, Thomas Hamill, Gregory Lasky, Dean Ragone, and
Louis Veney in the civil case captioned as LIBERTY RESOURCES, INC.,
et al. v. CITY OF PHILADELPHIA, Civil Action No. 19-3846 (E.D.
Pa.).
The lawsuit is a class action under Rule 23(a) and 23(b)(2) of the
Federal Rules of Civil Procedure seeking injunctive relief to
prevent disability discrimination in pedestrian rights of way
throughout Philadelphia. It was filed on Aug. 26, 2019. Plaintiffs,
a group of individuals with disabilities and disability advocacy
organizations, allege in this lawsuit on behalf of a class that the
City of Philadelphia has not met its obligations under the
Americans with Disabilities Act to install new curb ramps when it
resurfaces adjoining streets and to maintain existing curb ramps in
operable condition.
Movants Mark Fultz, Thomas Hamill, Gregory Lasky, Dean Ragone, and
Louis Veney ask to intervene in this action pursuant to Rule 24 of
the Federal Rules of Civil Procedure. Movants also seek dismissal
of the action. They contend that the action should be dismissed,
that the certified class in this matter does not meet the
requirements under Rule 23, and that the settlement agreement is
not fundamentally fair. Their motion was not filed until Jan. 9,
2023, nearly four years after this lawsuit was instituted.
Movants are five individuals with disabilities who reside in
Florida and New Jersey. They are members of the certified class in
this action because the class includes "all persons. . . who use or
will use pedestrian rights of way in the City of Philadelphia." The
class is not limited to residents of Philadelphia.
Significant proceedings have taken place in this action. Since this
suit was filed in August 2019, the parties have exchanged
substantial discovery, engaged expert witnesses, and conducted
significant motion practice. They spent months engaging in trial
preparation and, subsequently, negotiating a settlement agreement.
Intervention is far too late where, as here, significant
"proceedings of substance on the merits have occurred."
The Court settles that the "motion is procedurally deficient
because it does not state whether the movants seek to intervene of
right or on a permissive basis. . . motion is also tardy regardless
of the type of intervention movants seek. Movants are absent class
members, so the "gravamen" of the court's analysis must be on the
timeliness of the motion to intervene. . . Even if Movants' attempt
to intervene were timely, they have not demonstrated that they are
substantively entitled to intervene of right. . . Assuming Movants
have a concrete interest in pedestrian accessibility in
Philadelphia, Movants have not demonstrated how their interests
diverge from those of Plaintiffs for the purposes of their
intervention motion. Rather, they "merely express dissatisfaction
with specific aspects of the proposed settlement," which is
insufficient to permit of right intervention."
Moreover, the Court finds no reason to address Movants' arguments
for dismissal because the Court will deny their motion to
intervene. Accordingly, their motion will be denied. As Movants are
members of the certified class in this action, their objections to
the settlement can and will be considered as challenges to its
fundamental fairness.
A full-text copy of the Memorandum dated March 21, 2023, is
available https://tinyurl.com/sw6cum5x from Leagle.com.
PORTFOLIO RECOVERY: Crawford FDCPA Suit Removed to D. New Jersey
----------------------------------------------------------------
The case styled as John Crawford, individually and on behalf of all
others similarly situated v. Portfolio Recovery Associates, LLC,
John Does 1-25, Case No. MON L 000568 23 was removed from the
Superior Court of New Jersey Monmouth County, to the U.S. District
Court for the District of New Jersey on March 28, 2023.
The District Court Clerk assigned Case No. 3:23-cv-01746 to the
proceeding.
The lawsuit is brought over alleged violation of the Fair Debt
Collection Protection Act.
Portfolio Recovery Associates, LLC (PRA Group, Inc.) --
https://www.portfoliorecovery.com/ -- is a publicly traded global
debt buyer based in Norfolk, Virginia.[BN]
The Plaintiff appears pro se.
The Defendant is represented by:
Stephen Steinlight, Esq.
TROUTMAN PEPPER HAMILTON SANDERS LLP
875 Third Avenue
New York, NY 10022
Phone: (212) 704-6000
Email: Stephen.Steinlight@troutman.com
RELIOS INC: Slade Files ADA Suit in S.D. New York
-------------------------------------------------
A class action lawsuit has been filed against Relios, Inc. The case
is styled as Linda Slade, individually and as the representative of
a class of similarly situated persons v. Relios, Inc. doing
business as: American West Jewelry, Case No. 1:23-cv-02618
(S.D.N.Y., March 29, 2023).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Relios, Inc. doing business as American West Jewelry --
https://americanwestjewelry.com/ -- offers western & southwestern
jewelry with bold & colorful designs made in USA.[BN]
The Plaintiff is represented by:
Dan Shaked, Esq.
SHAKED LAW GROUP, P.C.
14 Harwood Court, Suite 415
Scarsdale, NY 10583
Phone: (917) 373-9128
Email: shakedlawgroup@gmail.com
SOIL BUILDING: Fails to Pay for Overtime Wages, Blesi Alleges
-------------------------------------------------------------
ANDREW BLESI, individually and on behalf of all others similarly
situated, Plaintiff v. SOIL BUILDING SYSTEMS, INC.; BARON ABLON;
and NEAL GUTKIN, Defendants, Case No. 3:23-cv-00660-M (N.D. Tex.,
March 28, 2023) is an action against the Defendants' failure to pay
the Plaintiff and the class minimum wages, and overtime
compensation for hours worked in excess of 40 hours per week.
Plaintiff Blesi was employed by the Defendants as an equipment
operator.
SOIL BUILDING SYSTEMS, INC. is a manufacturer and wholesaler of
organic composts, mulches, soil mixes, rocks, sand and clay. [BN]
The Plaintiff is represented by:
Michael R. Steinmark, Esq.
Bruce W. Steckler, Esq.
Austin P. Smith, Esq.
Steckler Wayne, Esq.
CHERRY & LOVE, PLLC
12720 Hillcrest Road, Suite 1045
Dallas, TX 75230
Telephone: (972) 387-4040
Facsimile: (972) 387-4041
Email: michael@swclaw.com
bruce@swclaw.com
austin@swclaw.com
STARDUST MOTEL: Flournoy Files Suit in Cal. Super. Ct.
------------------------------------------------------
A class action lawsuit has been filed against Stardust Motel, et
al. The case is styled as Clint Flournoy, on behalf of himself and
all others similarly situated v. Stardust Motel, Hansa Patel,
Mahesh Patel, Rakhiben Patel, Monojkumar Patidar, Does 1-100, Case
No. 34-2023-00337048-CU-CR-GDS (Cal. Super. Ct., Sacramento Cty.,
March 28, 2023).
The case type is stated as "Civil Rights - Civil Unlimited."
The Stardust Motel -- https://stardustmotel.ca/ -- in Bedford has
been warmly welcoming guests since 1969, and has been a solid
fixture along the scenic Bedford Highway since that time.[BN]
The Plaintiff is represented by:
Yashdeep Singh, Esq.
YASH LAW GROUP
3 Pointe Dr #203
Brea, CA 92821
Phone: 714-494-6244
Email: Ysingh@Yashlaw.com
STREETTEAM SOFTWARE: Ulmer Labor Suit Transferred to C.D. Cal.
--------------------------------------------------------------
The case styled TAYLER ULMER on behalf of herself and all similarly
situated employees, Plaintiff v. STREETTEAM SOFTWARE, LLC d/b/a
POLLEN, Defendant, Case No. 1:22-cv-05662, was transferred from the
United States District Court for the Eastern District of New York
to the United States District Court for the Central District of
California on March 27, 2023.
The Clerk of Court for the Central District of California assigned
Case No. 2:23-cv-02226-JFW-AGR to the proceeding.
Plaintiff Ulmer brings this action on behalf of herself and all
other similar Pollen employees in New York arising from the
Defendant's unlawful labor practices in violation of the New York
Labor Law.
StreetTeam Software, LLC is a destination events company engaging
in the fields of travel, festivals, entertainment, experiences and
youth culture.[BN]
The Plaintiff is represented by:
Valdi Licul, Esq.
Sagar Shah, Esq.
WIGDOR LLP
85 Fifth Avenue
New York, NY 10003
Telephone: (212) 257-6800
Facsimile: (212) 257-6845
E-mail: vlicul@wigdorlaw.com
TH EXPLORATION: Atinum Files 4th Cir. Appeal in Gas Royalties Suit
------------------------------------------------------------------
Defendant ATINUM MARCELLUS I, LLC filed an appeal from a court
ruling entered in the lawsuit entitled SOUTHERN COUNTRY FARMS,
INC., a West Virginia Corporation, individually, and on behalf of
all individuals and legal entities similarly situated, Plaintiff v.
TH Exploration, LLC, TH Exploration II, LLC, Tug Hill Operating,
LLC, THQ Appalachia I, LLC, THQ Appalachia I Midco, LLC, THQ
Marketing, LLC and Atinum Marcellus I, LLC, Defendants, Case No.
5:21-cv-00084-JPB, in the United States District Court for the
Northern District of West Virginia at Wheeling.
This case, filed on June 3, 2021, arises from an alleged
underpayment of royalties for production on oil and gas leases;
plaintiff is a lessor and seeks to represent a class of lessors;
defendants are successor lessees to leases originally held by
Gastar Exploration USA, Inc. The Complaint in this case alleges
that defendants breached the contract by deducting amounts not
permitted by the leases, that they negligently or fraudulently
misrepresented material facts, that defendants were unjustly
enriched by taking funds to which they had no legal right, that
they are entitled to an accounting from defendants, and seek a
declaratory judgment and injunctive relief.
The Defendants filed a Motion for Partial Dismissal of Plaintiff's
Complaint and to Strike the Class Allegations on October 1, 2021,
asking the Court to dismiss Counts II and III of the Complaint,
strike the allegations regarding predecessor liability, strike the
requests for punitive damages and attorneys' fees, and to strike
the class allegations.
The Plaintiff filed a response in opposition to the Motion on
October 25, 2021. The Defendants filed a reply on November 1,
2021.
On November 4, 2021, Judge John Preston Bailey entered an Order
granting Defendants' Motion for Partial Dismissal of Plaintiff's
Complaint. Counts II and Ill were DISMISSED, and the requests for
punitive damages and attorneys' fees were STRICKEN. The Plaintiff
was granted leave to amend the Complaint.
The appellate case is captioned as Atinum Marcellus I, LLC v.
Southern Country Farms, Inc., Case No. 23-144, in the United States
Court of Appeals for the Fourth Circuit, filed on March 27,
2023.[BN]
Defendant-Petitioner ATINUM MARCELLUS I, LLC is represented by:
Stephen Edward Hastings, Esq.
David K. Hendrickson, Esq.
John Hampton Tinney, Jr., Esq.
HENDRICKSON & LONG, PLLC
214 Capitol Street
Charleston, WV 25301
Telephone: (304) 346-5500
Plaintiff-Respondent SOUTHERN COUNTRY FARMS, INC., a West Virginia
Corporation, individually, and on behalf of all individuals and
legal entities similarly situated, is represented by:
Thomas E. Buck, Esq.
Mark A. Kepple, Esq.
BAILEY & WYANT, PLLC
1219 Chapline Street
Wheeling, WV 26003-0000
Telephone: (304) 233-3100
- and -
Robert L. Redfearn, Esq.
Robert L. Redfearn, Jr., Esq.
SIMON PERAGINE SMITH & REDFEARN
1100 Poydras Street
New Orleans, LA 70163
Telephone: (504) 569-2030
- and -
Joseph M. Scipione, Esq.
NITTANY GROUP
169 Gerald Street
State College, PA 16801
Telephone: (814) 826-2244
- and -
Thomas Eugene White, Esq.
604 6th Street
Moundsville, WV 26041-0000
Telephone: (304) 845-7008
TOYOTA AUSTRALIA: Loses Class Action Appeal Over Defective DPF
--------------------------------------------------------------
William Stopford at carexpert.com.au reports that Toyota has been
unsuccessful in its appeal against a 2022 Federal Court decision
over payments to HiLux, Fortuner, and Prado owners who suffered
problems with the diesel particulate filters in their vehicles.
The Full Court of the Federal Court of Australia upheld the primary
judge's findings that more than 260,000 Toyotas equipped with
defective DPF systems were not of "acceptable quality".
While the Court hasn't indicated a total damages amount, the
automotive giant could still be liable for an estimated figure of
$1 billion to the owners of 264,170 diesel-powered HiLux, Fortuner
and LandCruiser Prado models produced between 2015 and 2020.
Lawyers on the class action had previously indicated total damages
would be more than $2 billion, and that some drivers could be
entitled to more compensation depending on how much they were
affected by the loss of their vehicle.
The Court also upheld the finding that Toyota engaged in misleading
or deceptive conduct in marketing and selling the vehicles, and
that the value of the relevant vehicles at the time of their
initial supply has been reduced because of these systems.
It acknowledged Toyota developed an effective fix for the defect in
May 2020 and subsequently offered it for free to its owners; the
company also extended the warranty on this item to 10 years, with
no mileage limit.
The Full Court did, however, find the reduction in value of these
vehicles was 10 per cent, before taking into account the
availability of the 2020 field fix, and not 17.5 per cent as had
been found by the primary judge.
It found there was merit in Toyota's submission that the utility of
its vehicles was unaffected by the defect and its consequences.
It has set aside the primary judge's aggregate damages award, and
the matter is now being sent back to this judge for reassessment of
the damages.
Justice Lee handed down the original judgement in the case of
Williams v Toyota last April.
"Toyota is reviewing the decision of the Full Court of the Federal
Court of Australia," said a spokesperson for Toyota Australia.
"We remain committed to assisting any customer whose vehicle has
experienced the DPF issue and to providing a free-of-charge remedy
that has been available since 2020.
"We believe we have implemented customer-focused and technically
grounded measures to resolve customer concerns.
"Toyota will consider the judgment carefully before making any
further comment."
DPFs are designed to capture and burn off harmful pollutants.
However, many of these vehicles were not regularly running at
conditions conducive to burning off said pollutants (long trips at
a good clip), and became clogged.
Defective DPFs could cause a number of issues in these vehicles,
including excessive white smoke, a reduction in power, and
foul-smelling exhaust fumes.
Toyota fitted a DPF burn-off button to its 2.8-litre diesel in
2018, and upgraded the engine substantially in the middle of 2020.
But the Court found the former patch was largely less effective
than the latter update, which it refers to as a "field fix".[GN]
TOYOTA MOTOR: Gamez Files Suit in E.D. Texas
--------------------------------------------
A class action lawsuit has been filed against Toyota Motor Sales,
U.S.A., Inc., et al. The case is styled as Arecely Gamez, Jeffry
Takili, on behalf of themselves and all others similarly situated
v. Toyota Motor Sales, U.S.A., Inc., Toyota Motor North America,
Inc., Case No. 4:23-cv-00262 (E.D. Tex., March 29, 2023).
The nature of suit is stated as Other Contract for Contract
Dispute.
Toyota -- http://global.toyota/en-- is a Japanese multinational
automotive manufacturer headquartered in Toyota City, Aichi,
Japan.[BN]
The Plaintiffs are represented by:
Jody Berke Burton, Esq.
LEMBERG LAW, LLC
43 Danbury Road
Wilton, CT 06897
Phone: (203) 653-2250
Fax: (203) 653-3424
Email: jburton@lemberglaw.com
TRS RECOVERY SERVICES: Ocampo FDCPA Suit Removed to E.D. New York
-----------------------------------------------------------------
The case styled as Evelin Ocampo, individually and on behalf of all
similarly situated v. TRS Recovery Services, Inc., was removed to
the U.S. District Court for the Eastern District of New York on
March 29, 2023.
The District Court Clerk assigned Case No. 2:23-cv-02422 to the
proceeding.
The lawsuit is brought over alleged violation of the Fair Debt
Collection Practices Act.
TRS Recovery Services -- https://www.trsrecoveryservices.com/ --is
a premier provider of collection services across varied market
segments.[BN]
The Plaintiff appears pro se.
The Defendant is represented by:
Joseph Brent Crace, Jr., Esq.
BASS BERRY & SIMS PLC
150 Third Avenue South, Suite 2800
Nashville, TN 37201
Phone: (615) 742-6200
Email: jcrace@bassberry.com
TURNER CONSTRUCTION: N.Y. App. Ct. Dismissed Nastasi Counterclaims
------------------------------------------------------------------
In the case captioned as TURNER CONSTRUCTION COMPANY, Plaintiff v.
NASTASI & ASSOCIATES, INC., Defendant, Index No. 652218/2017,
Motion Seq. No. 007, (N.Y. App. Div.), the New York County Supreme
Court grants the motion to dismiss filed by Turner to the extent of
dismissing the Defendant's counterclaims numbered 11 through 15,
and denies cross-motion to certify the class filed by Nastasi.
In 2012 and 2013, Defendant Nastasi & Associates, Inc., entered
into five contracts with Plaintiff Turner Construction Company, one
for each Project, pursuant to which the Defendant agreed to furnish
drywall and carpentry work for the Projects.
In the Spring of 2015, the parties fell into dispute. The Defendant
was demanding payment for completed work which was not provided.
Instead, the Plaintiff issued notices of termination for the
subcontract on May 4, 2015. The parties negotiated regarding the
payment due to the Defendant for the completed work over the next
two years, but never reached an agreement.
The Plaintiff commenced the instant action in April 2017 seeking
damages in the amount of $4.8 million for the additional costs of
labor, material, and other damages incurred as a result of
Defendants' alleged breaches of contract.
The Defendant has asserted 15 counterclaims against the Plaintiff
based on breach of contract, account stated and diversion of trust
funds pursuant to Article 3-A of the Lien Law. The counterclaims
are asserted in connection with each of five construction projects:
the New York University College of Nursing, Dentistry and
Bioengineering project; the Memorial Sloan-Kettering project; the
West Village Residences project; the Conde Nast project; and the
Lenox Hill Hospital project.
On Feb. 27, 2023, the Plaintiff moved for summary judgment and
dismissal of the Defendant's counterclaims and third-party
complaint, and the Defendant cross-moved for an order pursuant to
New York Civil Practice Law & Rules Law Section 902 to allow the
Defendant to proceed as a class for the purpose of pursuing its
counterclaims under Article 3-A of the Lien Law.
The Court rules that the "counterclaims are not time barred because
the one-year period of limitations in the contracts is not
reasonable as applied in this action." The Court explains that "the
one-year period would have expired on May 4, 2016. However,
Plaintiff received payment from the owner between 2017 and 2019,
depending on the project. Thus, as applied in this action, the
claims would have expired before they accrued. . . the one-year
limitation in each of the contracts was neither fair nor
reasonable, and therefore unenforceable."
In addition, the Court does not find "a basis to make a different
decision as to the Account Stated claims. The 'Payments in General'
section of the contracts provided that the 'obligation of
Contractor to make a payment under this Agreement. . . is subject
to the express condition precedent of payment therefor by the
Owner.' Later in the contracts, it also provides, 'the
Subcontractor agrees that it shall not be entitled to nor claim any
cost reimbursement, compensation, damages or extensions of time
attributable to any changes, additions, and/or omissions directed
by Turner except to the limited extent that Turner has actually
recovered corresponding cost reimbursement compensation. . . from
the Owner. . ." Pursuant to these provisions, the Court concludes
that the "Plaintiff did not owe the Defendant anything until it was
paid by the owners. These clauses prohibited the Defendant from
making any claim for compensation or damages until the Plaintiff
was paid by the owners, and this would include a claim for account
stated."
To maintain a class action, the class representative must move for
an order certifying the class within 60 days after the trustee's
time to serve a responsive pleading has expired.
Assuming arguendo that the claims were not time barred, the Court
would still deny the cross-motion to certify the Defendant as a
class of one. The Court determines that "the Defendant failed to
take any action prior to the filing of the Note of Issue to advance
its class theory. . . Not only did the Defendant fail to timely
file, but the Defendant acknowledges that it cannot satisfy the
numerosity requirement of New York Civil Practice Law & Rules Law
Section 901. Nor has Defendant established that a class action is
the superior method of addressing Defendant's claims for nonpayment
in this action."
A full-text copy of the Decision & Order dated March 21, 2023, is
available https://tinyurl.com/5cfyejxj from Leagle.com.
UNIFI AVIATION: Mauleon Files Suit in Cal. Super. Ct.
-----------------------------------------------------
A class action lawsuit has been filed against Unifi Aviation, LLC,
et al. The case is styled as Raul Mindanao Mauleon, individually
and on behalf of all others similarly situated v. Unifi Aviation,
LLC, Does 1-50, Case No. CGC23605486 (Cal. Super. Ct., Sacramento
Cty., March 29, 2023).
The case type is stated as "Other Non-Exempt Complaints."
Unifi -- https://www.unifiservice.com/ -- is the largest ground
handling & aviation services company in North America.[BN]
The Plaintiff is represented by:
Gregory Mauro, Esq.
THE MAURO LAW FIRM APLC
790 E Colorado Blvd., Fl. 9
Pasadena, CA 91101-2193
Phone: 626-698-0048
Fax: 626-698-0049
Email: greg@maurolawfirm.net
UNITED PARCEL: Wynn Appeals FCRA Suit Dismissal to 9th Cir.
-----------------------------------------------------------
Plaintiff BRITTANY WYNN filed an appeal from the District Court's
Order and Judgment dated March 1, 2023 entered in the lawsuit
entitled Brittany Wynn, on behalf of herself and all others
similarly situated v. United Parcel Service, Inc., Case No.
3:21-cv-10029-CRB, in the United States District Court for the
Northern District of California, San Francisco.
The lawsuit, filed on December 28, 2021, is brought over
Defendant's alleged violation of the Fair Credit Reporting Act.
On March 21, 2022, the Defendant filed a motion to dismiss the case
which the Court granted on October 4, 2022 through an Order entered
by Judge Charles R. Breyer.
On November 1, 2022, the Plaintiff filed its First Amended
Complaint against the Defendant.
On December 1, 2022, the Defendant filed a motion to dismiss
Plaintiff's Amended Complaint which the Court granted on March 1,
2023, through an Order and Judgment entered by Judge Breyer.
The appellate case is captioned as Brittany Wynn v. United Parcel
Service, Inc., Case No. 23-15448, in the United States Court of
Appeals for the Ninth Circuit, filed on March 27, 2023.
The briefing schedule in the Appellate Case states that:
-- Appellant Brittany Wynn Mediation Questionnaire was due on
April 3, 2023;
-- Appellant Brittany Wynn opening brief is due on May 30,
2023;
-- Appellee United Parcel Service, Inc. answering brief is due
on June 30, 2023; and
-- Appellant's optional reply brief is due 21 days after service
of the answering brief.[BN]
Plaintiff-Appellant BRITTANY WYNN, on behalf of herself and all
others similarly situated, is represented by:
Nolan Dilts, Esq.
William M. Pao, Esq.
Chaim Shaun Setareh, Esq.
SETAREH LAW GROUP
9665 Wilshire Boulevard, Suite 430
Beverly Hills, CA 90212
Telephone: (310) 888-7771
Defendant-Appellee UNITED PARCEL SERVICE, INC., an Ohio
corporation, is represented by:
Jacob Moshe Roth, Esq.
JONES DAY
51 Louisiana Avenue, NW
Washington, DC 20001
Telephone: (202) 879-7658
- and -
John A. Vogt, Esq.
JONES DAY
3161 Michelson Drive, Suite 800
Irvine, CA 92612-4408
Telephone: (949) 851-3939
UNITED STATES: Denial of Class Cert. in Gatore v. DHS Affirmed
--------------------------------------------------------------
In the appealed case captioned as RICA GATORE, ET AL., Appellants
v. UNITED STATES DEPARTMENT OF HOMELAND SECURITY, Appellee, Case
No. 21-5148 (D.D.C.), the U.S. Court of Appeals for the District of
Columbia Circuit affirms the district court's order denying class
certification.
When an individual applies for asylum, an asylum officer of the
United States Citizenship and Immigration Services reviews the
application and interviews the applicant. If the asylum officer
recommends denying the application and concludes that the applicant
is in the United States illegally, the officer prepares a document
called an Assessment to Refer, which the officer forwards to a
supervisor who determines whether to grant asylum or to direct the
case to Immigration Court for removal proceedings. The Freedom of
Information Act (FOIA) requires federal agencies to disclose their
records upon request unless the records sought fall within an
enumerated exemption.
With the assistance of the nonprofit organization Catholic
Charities, Rica Gatore, a native and citizen of Burundi, filed a
FOIA request with the Department of Homeland Security in 2014,
seeking the Assessment to Refer associated with her asylum
application. The Department at that time was refusing to release
any portion of Assessments to Refer, generating multiple lawsuits
and years of litigation over whether the Assessments contain any
reasonably segregable portions.
In 2015, Ms. Gatore, several other requesters, and Catholic
Charities filed a class action complaint against DHS. They alleged
that DHS violated FOIA by adopting a policy of withholding
Assessments to Refer in full without first determining whether any
of their contents were nonexempt and could reasonably be segregated
from deliberative portions exempt from disclosure. The Plaintiffs
sought to represent a class of all FOIA requestors who, since March
30, 2009, had requested or would request "the Assessment of their
asylum officer, but were provided no portion of the Assessment."
They asserted a right to disclosure of the reasonably segregable
nonexempt portions of each class member's Assessment, as well as an
order declaring that the Department's alleged policy violated FOIA
and enjoining DHS from withholding reasonably segregable material
in the future.
The district court denied class certification under Rule 23(b)(2)
of the Federal Rules of Civil Procedure on the ground that the
Plaintiffs sought to represent a class to which the court thought
they no longer belonged. Consequently, the Plaintiffs moved to
amend the complaint to add named Plaintiffs and again sought class
certification -- this time under Rule 23(b)(3) of the Federal Rules
of Civil Procedure -- on behalf of a class of asylum applicants who
had requested their Assessments under FOIA "but were not given the
factual portions thereof."
The Plaintiffs' principal argument on appeal is that class
certification under Rule 23(b)(3) is warranted to ensure class-wide
notice to absent members of the proposed class. The Plaintiffs
assert that the district court erred in failing to consider that
Rule 23(b)(3)'s notice requirement would entail communicating DHS's
policy change to past FOIA requesters in the proposed class who "do
not know they have been unfairly treated."
The Court explains that "Rule 23(b)(3) certification is not
justified by the potential utility of class-wide notice. Rather,
the rule authorizes certification only when its requisites --
including predominance and superiority -- are met. . . The district
court ruled against Plaintiffs for failure to satisfy those
requisites, and Plaintiffs have not shown that was error. . . The
core issue common to the class was DHS's policy of failing to
segregate and disclose to Plaintiffs the nonexempt portions of
Assessments to Refer to which FOIA entitled them. . . That issue
cannot be said to predominate now that the government has
discontinued the challenged policy. As to superiority, Plaintiffs
offer no meaningful explanation apart from their notice argument
why litigating the new policy's correct application to absent class
members on a class-wide basis would be superior to addressing such
enforcement claims individually."
The Court notes "the potential mismatch between Plaintiffs'
underlying claims and their pursuit of class certification under
Rule 23(b)(3) -- this is not a suit for damages, nor have the
Plaintiffs identified any basis for seeking damages. At the outset,
the Plaintiffs have sought injunctive relief against DHS's
generally applicable policy, making Rule 23(b)(2) the more natural
route to class certification. . . Indeed. . . Plaintiffs had sought
class certification under Rule 23(b)(2), but in a 2018 opinion the
district court denied that motion. The court reasoned that, once
DHS gave named Plaintiffs even a fraction of the nonexempt
information, those Plaintiffs could no longer represent class
members subject to the same challenged policy who had received
nothing. Whatever the merit of the district court's Rule 23(b)(2)
decision, Plaintiffs do not challenge it on appeal, and we have no
occasion to review it."
The Court further notes that "After the district court declined to
certify the class under Rule 23(b)(2), the Plaintiffs changed
horses and sought certification under Rule 23(b)(3). In 2021, after
further proceedings, the district court denied that motion, too. In
declining to certify a Rule 23(b)(3) class, the district court
concluded that, under 'the situation as it now exists,' the
requirements of class certification have not been satisfied. The
Plaintiffs did not argue the voluntary cessation exemption to
mootness or preserve any claim to the contrary; indeed, they
affirmatively forfeited it in their filing in response to the
district court's Order to Show Cause, where they categorically
conceded the mootness of their claims. The undisputed mootness of
Plaintiffs' claims is alone sufficient to dispose of their Rule
23(b)(3) challenge."
A full-text copy of the Judgment dated March 21, 2023, is available
https://tinyurl.com/52s42ruh from Leagle.com.
UNITED WATER SYSTEM: Knott Suit Removed to W.D. Louisiana
---------------------------------------------------------
The case styled as Aaron Knott, Michael Carruth, Karen Carruth,
Christina Sonnier, Christine Olivier, individually & on behalf of
all others similarly situated v. United Water System Inc., American
Alternative Insurance Co., Case No. 92514 was removed from the 16th
JDC, St. Martin Parish, to the U.S. District Court for the Western
District of Louisiana on March 29, 2023.
The District Court Clerk assigned Case No. 6:23-cv-00401-DCJ-CBW to
the proceeding.
The nature of suit is stated as Environmental Matters.
United Water System Inc. -- http://www.unitedwatersystem.net/-- is
a non-profit organization in Louisiana.[BN]
The Plaintiffs are represented by:
Gordon James Schoeffler, Esq.
OFFICE OF GORDON J. SCHOEFFLER
P O Box 4829
Lafayette, LA 70502
Phone: (337) 234-5505
Fax: (337) 261-0799
Email: gordon@gjslawoffice.com
- and -
Adam Russell Credeur, Esq.
Kenneth W DeJean, Esq.
Natalie Marie DeJean, Esq.
LAW OFFICES OF KENNETH W DEJEAN
P O Box 4325
Lafayette, LA 70502
Phone: (337) 235-5294
Fax: (337) 235-1095
Email: adam@kwdejean.com
kwdejean@kwdejean.com
natalie@kwdejean.com
- and -
Jacques Pierre Soileau, Esq.
SOILEAU LAW OFFICE (BB)
P O Box 344
Breaux Bridge, LA 70517
Phone: (337) 332-4561
Fax: (337) 332-4562
Email: jacquotsoileau@gmail.com
The Defendant is represented by:
John E W Baay, II, Esq.
AsheLee Shante Singleton, Esq.
John Michael DiGiglia, Esq.
GIEGER LABORDE & LAPEROUSE
701 Poydras St Ste 4800
New Orleans, LA 70139
Phone: (504) 561-0400
Fax: (504) 561-1011
Email: jbaay@glllaw.com
asingleton@glllaw.com
mdigiglia@glllaw.com
URBAN NECESSITIES: Wilson Sues Over Unsolicited Text Messaging
--------------------------------------------------------------
Sharon Wilson, individually and on behalf of all others similarly
situated v. URBAN NECESSITIES LLC, Case No. CACE-23-011961 (Fla.
17th Judicial Ct., Broward Cty., March 29, 2023), is brought
pursuant to the Telephone Consumer Protection Act ("TCPA") and the
Florida Telephone Solicitation Act ("FTSA") as a result of the
Defendant's unsolicited text messaging marketing.
The Defendant engages in unsolicited text message marketing,
including to individuals who have registered their telephone
numbers on the National Do-Not-Call Registry, and to those who have
not provided Defendant with their prior express written consent as
required by the FTSA. The Defendant's unsolicited text message spam
caused Plaintiff and the Class members harm, including violations
of their statutory rights, trespass, annoyance, nuisance, invasion
of their privacy, and intrusion upon seclusion. Defendant's text
messages also occupied storage space on Plaintiffs and the Class
members' telephones. Through this action, the Plaintiff seeks an
injunction and statutory damages on behalf of the Plaintiff and the
Class members, as defined below, and any other available legal or
equitable remedies resulting from the unlawful actions of the
Defendant, says the complaint.
The Plaintiff is a citizen and resident of Broward County,
Florida.
The Defendant is a foreign corporation and a "telephone
solicitor."[BN]
The Plaintiff is represented by:
Manuel S. Hiraldo, Esq.
HIRALDO P.A.
401 E. Las Olas Boulevard, Suite 1400
Ft. Lauderdale, FL 33301
Phone: 954.400.4713
Email: mhiraldo@hiraldolaw.com
- and -
Michael L. Eisenband, Esq.
EISENBAND LAW, P.A.
515 E. Las Olas Boulevard, Suite 120
Ft. Lauderdale, FL 33301
Phone: 954.533.4092
Email: MEisenband@Eisenbandlaw.com
VBIT TECHNOLOGIES: Court Grants Enno's Bid for Alternative Service
------------------------------------------------------------------
Judge Gene E.K. Pratter of the U.S. District Court for the Eastern
District of Pennsylvania grants the Plaintiff's motion for
alternative method of service in the case captioned as MICHAEL
ENNO, Individually and on behalf of others similarly situated,
Plaintiff v. VBIT TECHNOLOGIES CORP., et al., Defendants, Civil
Action No. 22-4006 (E.D. Pa.).
Michael Enno, on behalf of himself and others similarly situated,
brought this class action alleging that various defendants engaged
in fraud and breach of contract arising out of a cryptocurrency
mining operation. Mr. Enno properly served two defendants, VBit
Technologies Corp. and VBit Mining LLC, but has so far been unable
to serve process on Danh Cong Vo -- VBit's founder and former CEO.
Mr. Enno asserts that Mr. Vo is intentionally avoiding service, so
Mr. Enno has filed a motion asking the Court to approve an
alternative method of service.
Mr. Enno proposes three alternative methods of service: (1) email
to three of Mr. Vo's own accounts; (2) certified mail to VBit's
registered agent, Legal Inc. Corporate Services, Inc.; and (3)
certified mail and email to Mr. Vo's counsel, Milena Dolukhanyan.
The Court finds that "Mr. Enno does not provide any evidence that
any of the three proposed email addresses has or have ever been
used by Mr. Vo or that he is likely to receive an email sent to any
of them. . . Therefore, this method of alternative service is not
reasonably calculated to reach Mr. Vo and is insufficient. . . Mr.
Enno's second proposed alternative, certified mail to VBit's
registered agent, raises other due process concerns. At one point,
Mr. Vo was the CEO of VBit, but he is no longer employed in any
capacity at VBit. Service to a defendant's former place of
employment is insufficient under Federal Rule of Civil Procedure
4(e)(2)."
The Court finds and concludes that "Mr. Enno's final proposed
method of service, certified mail and email to Ms. Dolukhanyan,
stands on a stronger practical footing. Ms. Dolukhanyan currently
represents Mr. Vo in a pending case, and it seems that Mr. Enno has
been in regular contact with her about this matter. It is therefore
reasonably likely that the service sent to Ms. Dolukhanyan will
reach Mr. Vo." The Court follows the reasoning in Divx, LLC v. LEG
Elecs. Inc., No. 20-cv-1202, 2021 WL 411708, at *2 (D. Del, Feb. 5,
2021), where the court held that "service by email to defendant's
counsel satisfied due process where record showed that defense
counsel had been in contact with plaintiffs about the pending
action."
The Court, therefore, grants Mr. Enno's motion for alternative
service by certified mail and email to Milena Dolukhanyan,
Gartenberg Gelfand Dolukhanyan, LLP, 15303 Ventura Blvd., Suite
900, Sherman Oaks, California, 91403.
A full-text copy of the Memorandum dated March 21, 2023, is
available https://tinyurl.com/3chuu5vv from Leagle.com.
WALMART INC: N.D. Illinois Dismisses Kahn's Consumer Fraud Claims
-----------------------------------------------------------------
Judge Sara L. Ellis of the U.S. District Court for the Northern
District of Illinois grants Walmart, Inc.'s motion and dismisses
with prejudice the case captioned as YORAM KAHN, individually and
on behalf of all others similarly situated, Plaintiff v. WALMART,
INC., Defendant, Case No. 22 C 4177 (N.D. Ill.).
Walmart, Inc., uses shelf pricing to advertise merchandise prices
and enable consumers to calculate pricing differences between
brands and identify bargains, as well as to induce consumers to
purchase the advertised merchandise. But Walmart's shelf pricing
does not always reflect the price it charges consumers at the point
of sale, causing consumers to pay higher prices at checkout.
After Walmart charged Yoram Kahn more than the prices reflected on
the store shelf for certain items that he purchased, Kahn filed
this putative class action against Walmart. Kahn brings claims for
violation of the Illinois Consumer Fraud and Deceptive Business
Practices Act, the Illinois Uniform Deceptive Trade Practices Act,
and other similar state consumer protection statutes. Kahn also
brings a claim for unjust enrichment.
Walmart filed a motion to dismiss the complaint pursuant to Federal
Rule of Civil Procedure 12(b)(6).
Although Kahn uses language of unfairness in his complaint, he
premises his ICFA claim on Walmart's alleged concealment of the
actual prices of its items, and so the Court interprets it solely
as a deceptive practices claim that must meet Rule 9(b)'s
heightened pleading standard.
The Court finds the reasoning in Tudor v. Jewel Food Stores, Inc.,
288 Ill.App.3d 207 (1997), applies equally to this case, where
Walmart provides its customers with a receipt to compare the
scanned price with the shelf price. "Illinois law is clear that
where other information is available to dispel [a tendency to
mislead], there is no possibility for deception." Here, Walmart
provided Kahn with a receipt, reflecting the incorrectly scanned
prices. Kahn could, and indeed did, use this receipt to compare the
prices Walmart charged him with the advertised shelf pricing. This
comparison revealed the discrepancy and dispelled any potential
deception.
Additionally, the Court finds that Kahn cannot adequately allege
ICFA's intent element. In light of the fact that Walmart provided
Kahn with a receipt against which he could, and indeed did, compare
the shelf price to the scanned price to determine if they differed,
the Court cannot find that Walmart intended for Kahn to rely on the
incorrectly scanned price. The combination of the issuance of the
receipt, along with the money-back guarantee if the scanned price
differs from the shelf price, indicates defendant did not intend
that plaintiff rely on an incorrectly scanned price. As such, the
Court dismisses that claim because Kahn cannot plead two of the
required elements of his ICFA claim.
The Court further rules that Kahn's remaining claims fail for the
same reasons as his ICFA claim. Kahn alleges that Walmart violated
the UDTPA in the same way it violated ICFA: by advertising one
price on the shelf while selling the items at a higher, scanned
price. As the Court has already found, Kahn cannot plead the
required deceptive conduct or intent to deceive, and so his UDTPA
claim fails for the same reasons as his ICFA claim.
Finally, the Court rules that Kahn cannot pursue his class claims
because he has not adequately pleaded claims under Illinois'
consumer fraud statutes -- leaving him without any individual
claim. Thus, the Court dismisses Kahn's claims on behalf of a
multi-state class for violations of other states' consumer
protection statutes.
A full-text copy of the Opinion and Order dated March 21, 2023, is
available https://tinyurl.com/4exhjwkk from Leagle.com.
WAYNE COUNTY, MI: Bids to Amend Ewing Complaint v. Sheriff Granted
------------------------------------------------------------------
In the case, DARELL R. EWING, et al., Plaintiffs v. WAYNE COUNTY
SHERIFF, et al., Defendants, Case No. 2:22-cv-11453 (E.D. Mich.),
Judge Sean F. Cox of the U.S. District Court for the Eastern
District of Michigan, Southern Division:
a. grants the Plaintiffs' motions to amend the complaint;
b. grants in part and denies in part as moot the Plaintiffs'
motions to expedite; and
c. denies the Plaintiffs' motion to appoint counsel, motion
for class certification, motion for preliminary injunction,
and motion to order the Defendants to provide copies of the
Plaintiffs' grievances.
The lawsuit is a civil rights action brought by 11 current and
former Wayne County Jail inmates pursuant to 42 U.S.C. Section
1983. The Plaintiffs are Darrell R. Ewing, Roderick Graham, Lamont
Lofton, Jonvonte Wiley, Quenshaun Littlejohn, Leonlius Kirsey,
Cullen Clemons, Antonio Richard, Shandon Groom, Rackwon Fowler, and
Antoine Bowman. The Plaintiffs assert that their jail conditions
relative to COVID-19 violate various constitutional rights. They
have filed multiple motions since filing the complaint.
Before the Court are the Plaintiffs' motions to amend the
complaint, motion to appoint counsel, motion for class
certification, motion for preliminary injunction, motion to order
the Defendants to provide copies of the Plaintiffs' grievances, and
motions to expedite.
Judge Cox first examines the Plaintiffs' motion to amend. He finds
that since commencing this action, the Plaintiffs have filed six
motions to amend the complaint. Their sixth motion to amend was
filed on Aug. 12, 2022. In the attached proposed amended complaint,
the Plaintiffs seek to add speedy trial and access to mail claims,
and add Third Circuit Court Administrator Richard Lynch, Third
Circuit Court Executive Administrator Zenell Brown, and Third
Circuit Court Judge Timothy Kenny as defendants. The Plaintiffs
appear to request that the Court treat this proposed amended
complaint as the operative complaint.
Because the Plaintiffs may amend their complaint only once as a
matter of right, Judge Cox grants the sixth motion to amend the
complaint, accepts the proposed amended complaint as the operative
complaint, and denies the previous motions to amend as unnecessary.
The Plaintiffs are warned that no future amendments will be
accepted without leave of the Court.
Judge Cox then turns to the Plaintiffs' motion to appoint counsel.
The Plaintiffs allege that counsel is necessary because they are
not equipped with the knowledge or legal skills to litigate their
complex claims. However, they have failed to demonstrate that the
issues in the case are so legally complex and that they are
incapable of litigating the issues presented in the amended
complaint at this time. Therefore, the request for counsel at this
stage of the case is premature. Judge Cox denies the motion to
appoint counsel without prejudice.
The Plaintiffs have filed a motion for class certification under
Fed. R. Civ. P. 23(a). They seek to certify a class of prisoners
housed at the Wayne County Jail. Because Ewing (or any of the other
Plaintiffs) is an incarcerated pro se litigant, Judge Cox finds
that he is not an appropriate representative of a class. Therefore,
at this time, he denies the request for class certification without
prejudice.
The Plaintiffs have also filed a motion for preliminary injunction.
In their motion for injunctive relief, they allege that Wayne
County Jail officials have unconstitutionally suspended
recreational time as a result of COVID-19 and that the state
court's denial of their right to a speedy trial has prolonged their
confinement. They argue that injunctive relief should be granted
because they are likely to succeed on the merits of their claims,
they will suffer irreparable injury without an injunction, an
injunction would not cause substantial harm to others, and the
public interest will be served by the issuance of an injunction.
The Plaintiffs request that the Court orders home confinement for
inmates that are being housed in violation of their right to a
speedy trial, compels the Third Circuit Court to hold jury trials,
orders the Wayne County Jail to allow the constitutional minimum of
recreation time, and orders the jail to open for prisoner
visitation.
Upon review of the motion and the amended complaint, Judge Cox
concludes that the Plaintiffs have not established that they are
entitled to a preliminary injunction at this stage of the case.
There is no dispute that the coronavirus pandemic has required
jails and prisons to impose more restrictive measures for the
safety of their staff and inmates. Whether the particular measures
at issue in this case were or continue to be reasonable and
necessary (for the health and safety of prisoners and staff alike)
remains to be seen. Judge Cox cannot make such a determination at
this time based on the record before it and certainly not without a
response from the defendants. Accordingly, he denies the
Plaintiffs' motion for a preliminary injunction without prejudice
to their right to seek such relief on a developed record.
Along with the original complaint, the Plaintiffs filed a motion to
order the Defendants to provide copies of their grievances. They
allege that they requested trust account statements and related
grievances from jail officials but were not provided them. Because
this motion primarily pertains to the Plaintiffs' status as
paupers, Judge Cox denies the motion as unnecessary and moot. Six
of the Plaintiffs have already paid their portions of the filing
fee, and the Court has granted in forma pauperis status to the
Plaintiffs who have not paid their portions of the fee.
Lastly, the Plaintiffs request that the Court expedites its review
of the pending motions and its screening and service of the amended
complaint. To the extent that the motion requests the Court to
expedite its ruling on the pending motions, that request is mooted
by the Order. With respect to screening, Judge Cox acknowledges
that the case has been pending and will promptly screen the amended
complaint, issue appropriate orders forthwith, and serve the
amended complaint on the Defendants. He further denies the
Plaintiffs' emergency motion to expedite as duplicative.
In view of the foregoing, Judge Cox grants the Plaintiffs' motion
to amend the complaint. He grants the Plaintiffs' motion to
expedite in part with respect to the screening and service of the
amended complaint. He denies as moot the request to expedite review
of the pending motions.
Judge Cox denies the Plaintiffs' remaining motions.
A full-text copy of the Court's March 28, 2023 Order is available
at https://tinyurl.com/3bfn7zhj from Leagle.com.
WESTERN DENTAL: Bradford Files FCRA Suit in S.D. Texas
------------------------------------------------------
A class action lawsuit has been filed against Western Dental
Services, Inc. The case is styled as Radley Bradford, individually,
and on behalf of all others similarly situated v. Western Dental
Services, Inc., Case No. 4:23-cv-01131 (S.D. Tex., March 28,
2023).
The lawsuit is brought over alleged violation of the Fair Credit
Reporting Act.
Western Dental & Orthodontics --
https://www.westerndental.com/en-us -- is a full service
dentistry.[BN]
The Plaintiff is represented by:
Alexander James Taylor, Esq.
Marwan Rocco Daher, Esq.
Omar Tayseer Sulaiman, Esq.
Mohammed Omar Badwan, Esq.
SULAIMAN LAW GROUP, LTD.
2500 S. Highland Avenue, Suite 200
Lombard, IL 60148
Phone: (630) 575-8181 ext. 108
Email: ataylor@sulaimanlaw.com
mdaher@sulaimanlaw.com
osulaiman@sulaimanlaw.com
mbadwan@sulaimanlaw.com
WESTINGHOUSE AIR: Black Files Suit in W.D. Pennsylvania
-------------------------------------------------------
A class action lawsuit has been filed against Westinghouse Air
Brake Technologies Corporation. The case is styled as Miles Black,
individually and on behalf of all others similarly situated v.
Cerebral, Inc., Case No. 2:23-cv-00547-WSS (W.D. Pa., March 29,
2023).
The nature of suit is stated as Other Contract for Contract
Default.
Westinghouse Air Brake Technologies Corporation (Wabtec) --
https://www.wabteccorp.com/ -- is a leading global provider of
equipment, systems, digital solutions, and value-added
services.[BN]
The Plaintiff is represented by:
Gary F. Lynch, Esq.
LYNCH CARPENTER, LLP
1133 Penn Avenue, 5th Floor
Pittsburgh, PA 15222
Phone: (412) 322-9243
Email: Gary@lcllp.com
ZOLL MEDICAL: Prosky Files Suit in D. Massachusetts
---------------------------------------------------
A class action lawsuit has been filed against Zoll Medical
Corporation. The case is styled as Ron Prosky, individually and on
behalf of all others similarly situated v. Zoll Medical
Corporation, Case No. 1:23-cv-10675 (D. Mass., March 28, 2023).
The nature of suit is stated as Other Personal Property for
Personal Injury.
ZOLL -- https://www.zoll.com/ -- is focused on improving outcomes
with novel resuscitation and acute critical care technology.[BN]
The Plaintiff is represented by:
Megan A. Siddall, Esq.
MINER SIDDALL LLP
101 Federal Street, Suite 650
Boston, MA 02110
Phone: (617) 202-5878
Fax: (617) 202-5893
Email: msiddall@msdefenders.com
*********
S U B S C R I P T I O N I N F O R M A T I O N
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Toledo, Christopher G. Patalinghug, and Peter A. Chapman, Editors.
Copyright 2023. All rights reserved. ISSN 1525-2272.
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