/raid1/www/Hosts/bankrupt/CAR_Public/230407.mbx
C L A S S A C T I O N R E P O R T E R
Friday, April 7, 2023, Vol. 25, No. 71
Headlines
3M COMPANY: Jackson Suit Removed to S.D. New York
998LQ SUSHI: Yuwono Conditional Collective Cert Bid Partly OK'd
ADT PIZZA: Seeks April 24 Extension to Respond to Class Cert. Bid
ALLSTATE FIRE: Keister, et al., Lose Class Certification Bid
AMERICU CREDIT: Class Certification Bids Must be Filed by Nov. 13
AMSOIL INC: Hernandez Files ADA Suit in S.D. New York
APPLE INC: Price's 2nd Amended Suit Dismissed W/o Leave to Amend
ARCON CREDIT: Buchholz Files FDCPA Suit in E.D. California
ASA COLLEGE: All Discovery Must be Completed by Sept. 8
AT&T INC: Seeks Rescheduling of Class Status Hearing
BIG CITY: Pineda Seeks More Time to File Class Certification Bid
BLOOM ENERGY: Court Terminates Pending Class Cert Bids in Roberts
BRIGHTHOUSE LIFE: Must File Class Cert Response by May 1
BRIGHTHOUSE LIFE: Newton Suit Seeks to Certify Rule 23 Class
BRIGHTHOUSE LIFE: Seeks More Time to Oppose Class Cert. Bid
CHESTER COUNTY, SC: Hall Seeks to Certify Inmate Class
CIMAREX ENERGY: Oklahoma Court Declines to Strike Class Allegations
CIRCUIT DEFENDER'S: Jahid Seeks to Certify Class Action
CONVERGENT OUTSOURCING: Class Discovery Filing Due March 27, 2024
CORECIVIC INC: Court Denies Barrientos' Bid for Class Certification
CREDIT SUISSE: Final Judgment Entered in Forex Rates Antitrust Suit
FAIRFIELD HEALTHCARE: Aboah Seeks Reconsideration of Court Ruling
FORD MOTOR: Bid to Strike Tucker's Class Claims Granted in Part
FORD MOTOR: Bids to Compel Arbitration and Dismiss Lyman Suit OK'd
HAWAII: $143K in Admin. and Attys.' Fees Awarded in ERK v. DOE
HIGHLAND CAPITAL: Fifth Circuit Affirms Dismissal of Lanotte Suit
HOME DEPOT: Filing of Class Cert. Bid Due Jan. 31, 2024
HOME PARTNERS: Class Cert. Discovery in Richmond Due March 1, 2024
JOSEPH R. BIDEN: Missouri Seeks Leave to Amend Class Complaint
LABOR SOURCE: Speight Suit Seeks to Certify Class, Subclass
LENOVO US: Ham Consumer Class Suit Dismissed Without Prejudice
MCKESSON CORPORATION: Filing of Class Status Bid Due Nov. 28
MDL 2262: $1.75MM Class Deal With MUFG, et al., Gets Final Approval
NEW HAMPSHIRE: Wins Partial Summary Judgment in Fitzmorris v. DHHS
NEWELL BRANDS: Amended Schmitt Suit Tossed for Lack of Jurisdiction
PRYSMIAN CABLES: Montana, et al., Seek to Certify Employee Class
QUALCOMM INC: Court Partly Grants Shah Class Status Bid
REFUAH HEALTH: Court Denies Bids to Remand Krandle & Esposito Suits
RICE DRILLING: Bid for Class Certification in Passmore Suit Denied
SECURITY BENEFIT: 10th Cir. Flips Dismissal of Clinton RICO Suit
STATE FARM: Unpaid PIP Benefits Claim Dismissed in Pedroso Suit
SWICKARD SF CORPORATION: Galpin Files Suit in Cal. Super. Ct.
T. MARZETTI: Court Denies Bid to Dismiss 1st Amended Simeone Suit
UNITED OF OMAHA: Court Denies Nieves' Bid for Class Certification
UNITED STATES: Seeks More Time to Respond to Amended Complaint
VELODYNE LIDAR: Lead Plaintiffs Seek to Certify Class Action
WALMART INC: Loses Bid to Dismiss Amended Rodriguez Consumer Suit
WILCO LIFE: Grundstrom Seeks to Certify Class & Subclass
WORKFORCE 7: Filing of Class Certification Bid Due August 11
ZOOM VIDEO: Settlement in Data Privacy Suits Under Appeal
[*] Del. Shareholder Appraisal Petitions Back to Pre-Boom Levels
Asbestos Litigation
ASBESTOS UPDATE: Avon Hit With $50.3MM Asbestos Exposure Verdict
ASBESTOS UPDATE: Park-Ohio Holdings Defends 99 Exposure Cases
*********
3M COMPANY: Jackson Suit Removed to S.D. New York
-------------------------------------------------
The case styled as Mike Jackson, individually and on behalf of all
others similarly situated; Sonja Vaden; Timothy Vaden; J.R., by and
through his Parent and Next Friend, Elizabeth Garcia; Elizabeth
Garcia; David Lopez; Tabetha Alonzo; Matt Turner; Ethan Acuss;
Persophone Guitron; Jimmy Easton; Jenna Carroll; Teaff Toka; Nelda
Ramirez, individually and as proposed representative of Juan C.
Ramirez; Ricky Jones; Julie Jones; Ilyea Shanz; Dominga Mullikin,
individually as legal representative of Emma Ramirez; Corey Graham;
Susie Landin; Juan Landin v. The 3M Company formerly known as:
Minnesota Mining and Manufacturing Co., AGC Chemicals Americas
Inc.; Amerex Corporation; Arkema Inc.; Archroma U.S., Inc.; Buckeye
Fire Equipment Company; Carrier Global Corporation; Chemdesign
Products Inc.; Chemguard Inc.; Chemicals, Inc.; Clariant
Corporation, individually; Clariant Corporation, as successor in
interest to Sandoz Chemical Corporation; Corteva, Inc.,
individually; Corteva, Inc., as successor in interest to DuPont
Chemical Solutions Enterprise; Deepwater Chemicals, Inc.; DuPont De
Nemours Inc., individually; DuPont De Nemours Inc., as successor in
interest to DuPont Chemical Solutions Enterprise; Dynax
Corporation; E.I. DuPont De Nemours and Company, individually; E.I.
DuPont De Nemours and Company, as successor in interest to DuPont
Chemical Solutions Enterprise; Kidde-Fenwal, Inc., individually;
Kidde-Fenwal, Inc., as successor in interest to Kidde Fire
Fighting, Inc.; Nation Ford Chemical Company; The Chemours Company,
individually; The Chemours Company, as successor in interest to
DuPont Chemical Solutions Enterprise; The Chemours Company FC LLC,
individually; The Chemours Company FC LLC, as successor in interest
to DuPont Chemical Solutions Enterprise; Tyco Fire Products, LP,
individually; Tyco Fire Products, LP, as successor in interest to
The Ansul Company; Doe Defendants 1-20, fictitious names whose
present identities are unknown; Case No. 55056/2023 was removed
from the Supreme Court, County of Westchester, to the U.S. District
Court for the Southern District of New York on March 30, 2023.
The District Court Clerk assigned Case No. 1:23-cv-02692 to the
proceeding.
The nature of suit is stated as Tort Product Liability.
3M -- http://www.3m.com/-- is an American multinational
conglomerate operating in the fields of industry, worker safety,
U.S. health care, and consumer goods.[BN]
The Plaintiffs appear pro se.
The Defendants are represented by:
Jordan David Sagalowsky, Esq.
MAYER BROWN LLP (NY)
1221 Avenue of the Americas, 14th Floor
New York, NY 10020-1001
Phone: (212) 506-2500
Fax: (212) 262-1910
Email: jsagalowsky@mayerbrown.com
998LQ SUSHI: Yuwono Conditional Collective Cert Bid Partly OK'd
---------------------------------------------------------------
In the class action lawsuit captioned as SANDY YUWONO, on behalf of
himself, FLSA Collective Plaintiffs, and the class, v. 998LQ SUSHI
INC., d/b/a Okinii, et al., Case No. 1:22-cv-00389-GHW (S.D.N.Y.),
Hon. Judge Gregory H. Woods entered an order granting in part the
Plaintiff's motion for conditional collective certification and for
sanctions.
The Defendants are ordered to produce to Plaintiff, in Excel format
by April 7, 2023, the following information for non-exempt
employees who were employed by the Defendants within three years of
March 2, 2023: names, titles, compensation rates, last known
mailing addresses, email addresses, all known telephone numbers,
and dates of employment.
Additionally, the Court schedules a conference for April 10, 2023
at 4:00 p.m. The conference will be conducted by telephone. The
parties are directed to the Court's Individual Rules of Practice in
Civil Cases, which are available on the Court's website. Rule 2 of
the Court's Individual Rules contains the dial-in number for the
conference and other relevant instructions.
At a February 27, 2023 conference, the Court held the Plaintiff's
prior request for sanctions in abeyance, finding that course
prudent so that sanctions could be tailored based on the
Defendants' actions through the course of discovery.
This case involves a wage-and-hour complaint by the Plaintiff Sandy
Yuwono against Defendants here -- a restaurant doing business as
"Okinii" and several individual defendants -- for alleged
violations of the Fair Labor Standards Act (FLSA) and New York
Labor Law (NYLL).
A copy of the Court's order dated March 21, 2023 is available from
PacerMonitor.com at https://bit.ly/3KsMxyk at no extra charge.[CC]
ADT PIZZA: Seeks April 24 Extension to Respond to Class Cert. Bid
-----------------------------------------------------------------
In the class action lawsuit captioned as Mirzai et al v. ADT Pizza
LLC, et al., Case No. 3:23-cv-00124-RNC (D. Conn.), the Defendants
ask the Court to enter an order granting their motion for extension
of time through and including April 24, 2023, within which to
respond to the Plaintiff's motion for conditional certification of
Fair Labor Standards Act (FLSA) collective action:
The Plaintiff alleges the Defendants' failure to compensate them
and similarly situated individuals with minimum wages as required
by the FLSA.
The allegations in the complaint are directed at 180 Pizza Hut
franchises owned and operated by the defendants in nine states
including Louisiana, Ohio, Tennessee, Alabama, Georgia, North
Carolina, South Carolina, and Florida.
A copy of the Defendants' motion dated March 20, 2023 is available
from PacerMonitor.com at https://bit.ly/3lYkUnf at no extra
charge.[CC]
The Defendants are represented by:
Richard J. Burtula, Esq.
BERCHEM MOSES PC
75 Board Street
Milford, CT 06460
E-mail: rbuturla@berchmmoses.com
ALLSTATE FIRE: Keister, et al., Lose Class Certification Bid
------------------------------------------------------------
In the class action lawsuit captioned as CHONG KEISTER and RUSSELL
KEISTER On behalf of themselves and all others similarly situated,
v. ALLSTATE FIRE AND CASUALTY INSURANCE COMPANY, Case No.
4:20-cv-00953-FJG (W.D. Mo.), Hon. Judge Fernando J. Gaitan, Jr.
entered an order:
1. denying the Plaintiffs' motion for class certification;
2. denying the Defendant's Motion for Oral Argument on the
Plaintiffs' motion for class certification;
3. provisionally denying Allstate's motion for summary
judgment;
and
4. denying the Plaintiffs' motion to Strike Allstate's motion
for
summary judgment.
The Plaintiffs Chong and Russell Keister are Missouri residents who
purchased an automobile insurance policy from Allstate that
included $5,000 of Automobile Medical Payments coverage. On October
31, 2019, Chong Keister, was involved in an accident in Kansas. The
other driver was determined to be at fault for the accident.
As a result of the accident, Ms. Keister received medical care
which resulted in bills exceeding $5,000. Allstate paid $4,500
toward the medical bills pursuant to Kansas law. Allstate alleges
that this payment was made pursuant to the Kansas statute which
requires nonresidents to meet certain minimum protections,
including $4,500 in
personal injury protection, also referred to as (PIP) coverage.
Allstate operates as an insurance firm.
A copy of the Court's order dated March 21, 2023 is available from
PacerMonitor.com at https://bit.ly/3m35nCG at no extra charge.[CC]
AMERICU CREDIT: Class Certification Bids Must be Filed by Nov. 13
-----------------------------------------------------------------
In the class action lawsuit captioned as Malinda Fairchild-Cathey,
et al. v. Americu Credit Union, Case No. 6:21-cv-01173-LEK-ML
(Court),
Hon. Judge Miroslav Lovric entered an uniform pretrial scheduling
order as follows:
-- Any motion to join any person as a May 8, 2023
party to this action shall be made
on or before:
-- Any motion to amend any pleading in May 8, 2023.
this action shall be made on or
before:
-- The parties are directed to file a June 2, 2023.
status report on or before:
-- Initial Written Discovery Demands April 20,
2023.
must be served by:
-- All discovery in this matter is to Oct. 10, 2023
be completed on or before:
-- Class certification motions are to Nov. 13, 2023
be filed on or before:
AmeriCU is a New York State Chartered credit union headquartered in
Rome, New York, originally founded in 1950 as Griffiss Employees
Credit Union.
A copy of the Court's order dated March 21, 2023 is available from
PacerMonitor.com at https://bit.ly/430Tpdf at no extra charge.[CC]
AMSOIL INC: Hernandez Files ADA Suit in S.D. New York
-----------------------------------------------------
A class action lawsuit has been filed against Amsoil, Inc. The case
is styled as Janelys Hernandez, on behalf of herself and all others
similarly situated v. Amsoil, Inc., Case No. 1:23-cv-02649
(S.D.N.Y., March 30, 2023).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
AMSOIL Inc. -- https://www.amsoil.com/ -- is an American
corporation based in Superior, Wisconsin that primarily formulates
and packages synthetic lubricants, fuel additives, and
filters.[BN]
The Plaintiff is represented by:
Noor Abou-Saab, I, Esq.
LAW OFFICE OF NOOR A. SAAB
380 North Broadway, Suite 300
Jericho, NY 11753
Phone: (718) 740-5060
Email: noorasaablaw@gmail.com
APPLE INC: Price's 2nd Amended Suit Dismissed W/o Leave to Amend
----------------------------------------------------------------
In the case, MATTHEW PRICE, Plaintiff v. APPLE, INC., Defendant,
Case No. 21-cv-02846-HSG (N.D. Cal.), Judge Haywood S. Gilliam,
Jr., of the U.S. District Court for the Northern District of
California grants Apple's motion to dismiss Price's second amended
complaint.
The Plaintiff alleges that since approximately January 2015 he has
had an Apple ID to purchase apps and other content from Apple. He
further asserts that during this time he made several in-app game
purchases that "did not work as advertised or at all." He alleges
that he contacted Apple and was advised to contact the game/app
developer. When this was unsuccessful, he contacted Apple again,
and the company suggested that he talk to his bank/credit card
company to have them chargeback the money he spent on said
purchases.
The Plaintiff contends that "chargebacks" are not "refunds," and
defines them as "a consumer protection tool that allow consumers to
get their money back for fraudulent charges or purchases that don't
live up to standards." He acknowledges that he requested "multiple
chargebacks" for purchases he made using his Apple ID.
In October 2020, after the Plaintiff processed another chargeback,
Apple terminated his Apple ID. He no longer has access to the
content that he purchased or the $7.63 in unspent money that he had
in his Apple account at the time of his termination. According to
him, an Apple representative told him that Apple terminated his
Apple ID because he initiated these chargebacks. The Plaintiff
contends that he did not violate Apple's Terms and Conditions, and
says the company had no basis to terminate his account. He urges
that by terminating his Apple ID, Apple violated its own Terms and
Conditions.
As relevant to the case, the Terms and Conditions state that users
may not "plan or engage in any illegal, fraudulent, or manipulative
activity." The Terms also state that Apple "may monitor users' use
of the Services and Content" for compliance with the Terms and that
it may refuse a refund request if they find evidence of fraud,
refund abuse, or other manipulative behavior that entitles Apple to
a corresponding counterclaim.
The Plaintiff initially filed the putative class action in April
2021. Apple moved to dismiss the complaint, but rather than oppose
the motion, the Plaintiff filed an amended complaint. At the time,
the Plaintiff asserted various claims, including for violations of
California's Unfair Competition Law ("UCL") and Consumers Legal
Remedies Act ("CLRA"), and for conversion, trespass to chattels,
and unjust enrichment. Apple again moved to dismiss the complaint.
The Court granted the motion to dismiss in its entirety, but
granted the Plaintiff leave to amend the UCL and CLRA claims only.
Rather than amend his existing claims, however, the Plaintiff's SAC
asserts a new breach of contract claim. Apple again moves to
dismiss.
Over a year after the Plaintiff initially filed the case, he
attempts to recast it as a breach of contract action. The Plaintiff
contends that Apple breached the termination provision of the Terms
and Conditions by (1) terminating his Apple ID and (2) retaining
his unused funds because his chargebacks were not prohibited by the
Terms.
But even as amended, Judge Gilliam finds that the latest complaint
fails to state a claim for relief.
As to the breach of contract claims, Judge Gilliam finds that the
Plaintiff here has not identified any provision of the Terms that
Apple allegedly breached. Because the Plaintiff accepted the Terms,
he knew that he would lose access to his purchased apps and
services if Apple determined (or even suspected) that he failed to
comply with the Apple Terms. Because Apple was given the right to
do what it did by the express provisions of the contract there can
be no breach. Judge Gilliam therefore grants Apple's motion to
dismiss as to this claim.
Judge Gilliam further finds that the termination provision that the
Plaintiff relies on does not say anything about returning unused
funds to users whose accounts are terminated. He fails to explain
how Apple nevertheless breached this provision. In short, the
Plaintiff has not identified any provision of the Terms that Apple
actually breached by withholding access to any unused funds. Hence,
Apple's motion as to this claim is granted as well.
Even if the Plaintiff adequately alleged a breach of contract
claim, Apple argues that his claims are nevertheless barred by its
limitation of liability provision. The Plaintiff contends that
while Apple may not provide life-or-death services, there can be no
doubt that its Services have become 'a practical necessity' for a
large percentage of the public.
But the Plaintiff offers no support for this assertion. Even if
Apple products are as "ubiquitous" as he suggests, that is not the
same as being essential. Judge Gilliam says the Plaintiff has no
credible argument that use of Apple's products is not optional. In
the absence of such an explanation, he agrees with Apple that the
Terms are a contract governing the voluntary use and purchase of
nonessential recreational activities and entertainment media.
Accordingly, even if the Plaintiff had stated a breach of contract
claim, he has not adequately explained why under the circumstances,
the limitation of liability provision would not be enforceable and
bar such claims.
Based on the foregoing, Judge Gilliam grants Apple's motion to
dismiss. The Plaintiff has had ample opportunity to state a claim
for relief, but has repeatedly failed to do so. Judge Gilliam finds
that granting leave to amend would be futile, and he therefore
dismisses the case without leave to amend. The Clerk is directed to
enter judgment in favor of Apple and to close the case.
A full-text copy of the Court's March 28, 2023 Order is available
at https://tinyurl.com/7dhaz7b7 from Leagle.com.
ARCON CREDIT: Buchholz Files FDCPA Suit in E.D. California
----------------------------------------------------------
A class action lawsuit has been filed against Arcon Credit
Solutions, LLC. The case is styled as Taylor R. Buchholz,
individually, and on behalf of all others similarly situated v.
Arcon Credit Solutions, LLC, Case No. 2:23-cv-00595-JAM-JDP (E.D.
Cal., March 30, 2023).
The lawsuit is brought over alleged violation of the Fair Debt
Collection Practices Act.
Arcon Credit Solutions, LLC -- https://arconcredit.com/ -- works
with consumers and businesses to resolve outstanding debts.[BN]
The Plaintiff is represented by:
Alexander J. Taylor, Esq.
SULAIMAN LAW GROUP, LTD.
2500 S. Highland Avenue, Suite 200
Lombard, IL 60148
Phone: (331) 307-7646
Fax: (630) 575-8188
Email: ataylor@sulaimanlaw.com
ASA COLLEGE: All Discovery Must be Completed by Sept. 8
-------------------------------------------------------
In the class action lawsuit captioned as Andrade-Barteldes v. ASA
College, Inc,. et al., Case No. 1:23-cv-00495-LJL (S.D.N.Y.), Hon.
Judge Lewis Liman entered a case management plan and scheduling
order as follows:
-- Any motion to amend or to join additional April 27,
2023
Parties shall be filed no later than:
-- All fact discovery is to be completed no July 26.
2023
Later than:
-- Initial requests for production of documents April 27,
2023
shall be served by:
-- Depositions shall be completed by: July 26,
2023
-- All discovery shall be completed: Sept. 8,
2023
ASA College is an institutionally accredited college in Brooklyn
and Manhattan, offering associate degree programs with hands-on lab
simulation experience.
A copy of the Court's order dated March 20, 2023 is available from
PacerMonitor.com at https://bit.ly/40Bq4ES at no extra charge.[CC]
AT&T INC: Seeks Rescheduling of Class Status Hearing
----------------------------------------------------
In the class action lawsuit captioned as Timothy Scott, et al., v.
AT&T Inc., et al., Case No. 3:20-cv-07094-JD (N.D. Cal.), the
Defendants ask the Court to enter an order rescheduling the April
20, 2023 hearing recently scheduled by the Court to one week
earlier (April 13, 2023), in light of Defendants' counsel's
obligation to be present for a long-scheduled jury trial beginning
April 17, 2023 in Norfolk, Virginia.
This unavoidable conflict presents good cause exists for the
requested modest schedule change. On March 17, 2023, the Court
entered a minute order stating that, upon further review of the
class certification and affiliated Daubert motions, the Court has
determined that a hearing will be necessary and is set for April
20, 2023, at 10:00 a.m.
On November 9, 2022, the Honorable Rebecca Beach Smith in the
Eastern District of Virginia entered an order scheduling a jury
trial to commence on April 17, 2023, in In re Zetia (Ezetimibe)
Antitrust Litigation, Case No. 2:18-md-2836 (E.D. Va.).
Judge Smith directed the Calendar Clerk to set aside 5 weeks for
the trial. Id. Counsel for Defendants who is primarily responsible
for Defendants' Opposition to the Motion for Class Certification in
this Court and is prepared to present argument to the Court on that
Motion, Ashley Johnson, expects to be in Court in the Eastern
District of Virginia for the entirety of that trial and will thus
be unable to be present in this Court for the scheduled argument on
April 20.
AT&T is an American multinational telecommunications holding
company headquartered at Whitacre Tower in Downtown Dallas, Texas.
A copy of the Defendants' motion dated March 21, 2023 is available
from PacerMonitor.com at https://bit.ly/40BrkrA at no extra
charge.[CC]
The Defendants are represented by:
John T. Cox, III, Esq.
Karl G. Nelson, Esq.
Ashley E. Johnson, Esq.
Jennafer M. Tryck, Esq.
GIBSON, DUNN & CRUTCHER LLP
2001 Ross Avenue, Suite 2100
Dallas, TX 75201
Telephone: (214) 698-3256
Facsimile: (214) 571-2923
E-mail: TCox@gibsondunn.com
KNelson@gibsondunn.com
AJohnson@gibsondunn.com
JTryck@gibsondunn.com
BIG CITY: Pineda Seeks More Time to File Class Certification Bid
----------------------------------------------------------------
In the class action lawsuit captioned as Juan Pineda v. Big City
Realty Management, LLC et al., Case No. 1:22-cv-05428-BMC
(E.D.N.Y.), the Plaintiff asks the Court to enter an order
extending its time to move for class certification from March 22,
2023 to April 12, 2023, and that the Court set a date certain for
the Defendants to provide the missing documents and information,
including, but not limited to, discovery relating to workers at the
Schedule B Buildings.
The request is largely necessitated by the Defendants' continued
failure to produce the documents and information that on March 8,
2021, the Court ordered Defendants to provide by March 15, 2023.
The Defendants disagree with plaintiff's counsel characterization
of the alleged outstanding discovery and its relation to the within
request. Your Honor was very clear in our virtual conference on
March 8, 2023, that defendants were to produce the outstanding
documents plaintiff requested in its letter to the Court dated
February 28, 2023 by March 15, 2023.
The suit involves claims under the Fair Labor Standards Act
("FLSA") and New York Labor Law ("NYLL") for wage and hour
violations.
A copy of the Plaintiff's motion dated March 21, 2023 is available
from PacerMonitor.com at https://bit.ly/3zrpJbK at no extra
charge.[CC]
The Plaintiff is represented by:
Marc A. Rapaport, Esq.
RAPAPORT LAW FIRM
80 Eighth Avenue, Suite 206
New York, NY 10011
Telephone: (212) 382-1600
Facsimile: (212) 382-0920
E-mail: mrapaport@rapaportlaw.com
BLOOM ENERGY: Court Terminates Pending Class Cert Bids in Roberts
-----------------------------------------------------------------
In the class action lawsuit captioned as ELISSA M. ROBERTS,
Individually and on Behalf of All Others Similarly Situated, v.
BLOOM ENERGY CORPORATION, et al., Case No. 4:19-cv-02935-HSG (N.D.
Cal.), Hon. Judge Haywood S. Gilliam, Jr. entered an order
terminating as moot, without prejudice:
-- the pending motion for class certification, and all associated
briefing, including the joinder in the opposition to the
motion
for class certification to renewal if the parties' proposed
settlement does not receive class certification for settlement
purposes only or final approval.
On March 18, 2022, the Plaintiffs filed a Motion for Class
Certification. On May 16, 2022, the Bloom Defendants filed their
Opposition to Plaintiffs' Motion for Class Certification.
On May 16, 2022, the Underwriter Defendants filed a Joinder in the
Bloom Defendants' Opposition to the Plaintiffs' Motion for Class
Certification.
On June 15, 2022, Plaintiffs filed a Reply in Further Support of
the Motion for Class Certification. On June 30, 2022, a hearing was
held on the Motion for Class Certification and the Court issued a
Minute Entry directing the Parties to meet and confer and e-file by
July 14, 2022, a joint filing proposing a revised class definition
as discussed on the record.
On July 14, 2022, the Parties filed a Joint Submission Regarding
Class Definition. On January 10, 2023, the Parties filed a Joint
Notice of Settlement and Stipulation and Proposed Order to Stay
Proceedings and Vacate Hearings Pending Settlement Approval.
Bloom Energy is an American public company headquartered in San
Jose, California. It manufactures and markets solid oxide fuel
cells that produce electricity on-site.
A copy of the Court's order dated March 21, 2023 is available from
PacerMonitor.com at https://bit.ly/3nDGm1s at no extra charge.[CC]
The Plaintiff is represented by:
Adam M. Apton, Esq.
Adam C. McCall, Esq.
Nicholas Ian Porritt, Esq.
Max Edward Weiss, Esq.
LEVI & KORSINSKY, LLP
75 Broadway, Suite 202
San Francisco, CA 94111
Telephone: (415) 373-1671
E-mail: aapton@zlk.com
amccall@zlk.com
nporritt@zlk.com
mweiss@zlk.com
BRIGHTHOUSE LIFE: Must File Class Cert Response by May 1
--------------------------------------------------------
In the class action lawsuit captioned RICHARD A. NEWTON, SR.,
Individually and on behalf of a Class of Individuals Similarly
Situated, v. BRIGHTHOUSE LIFE INSURANCE COMPANY, Case No.
1:20-cv-02001-AT (N.D. Ga.), Hon. Judge Amy Totenberg entered an
order granting motion for extension of time to file a response in
opposition to the Plaintiff's motion for class certification.
The Court further ordered that the Defendant may file its response
in opposition to Plaintiff's Motion for Class Certification no
later than May 1, 2023.
Brighthouse is a provider of annuities and life insurance in the
United States.
A copy of the Court's order dated March 21, 2023 is available from
PacerMonitor.com at https://bit.ly/3zrXtWE at no extra charge.[CC]
BRIGHTHOUSE LIFE: Newton Suit Seeks to Certify Rule 23 Class
------------------------------------------------------------
In the class action lawsuit captioned as RICHARD A. NEWTON, SR.,
Individually and on behalf of a Class of Individuals Similarly
Situated, v. BRIGHTHOUSE LIFE INSURANCE COMPANY, Case No.
1:20-cv-02001-AT (N.D. Ga.), the Plaintiff asks the Court to enter
an order certifying the following class pursuant to Federal Rule of
Civil Procedure (23):
"All persons who own or owned a universal life insurance policy
issued by Brighthouse or its predecessors-in-interest on Forms
ULXP86 and ULXP88, with a state of issuance of Georgia, and who
were subject to at least one monthly deduction."
The Plaintiff also moves the Court for the appointment of Roy E.
Barnes, Esq. as the class representative, and for the appointment
of Barnes Law Group, LLC, as class counsel.
Brighthouse is a provider of annuities and life insurance in the
United States.
A copy of the Plaintiff's motion to certify class dated March 20,
2023 is available from PacerMonitor.com at https://bit.ly/3K3WjFp
at no extra charge.[CC]
The Plaintiff is represented by:
Roy E. Barnes, Esq.
J. Cameron Tribble, Esq.
THE BARNES LAW GROUP, LLC
31 Atlanta Street
Marietta, GA 30060
Telephone: (770) 227-6375
Facsimile: (770) 227-6373
E-mail: roy@barneslawgroup.com
ctribble@barneslawgroup.com
BRIGHTHOUSE LIFE: Seeks More Time to Oppose Class Cert. Bid
-----------------------------------------------------------
In the class action lawsuit captioned as RICHARD A. NEWTON, SR.,
Individually and on behalf of a Class of Individuals Similarly
Situated, v. BRIGHTHOUSE LIFE INSURANCE COMPANY, Case No.
1:20-cv-02001-AT (N.D. Ga.), the Defendant submits a consent motion
for a 14-day extension of time to file its response in opposition
to Plaintiff's Motion for Class Certification through and to
include May 1, 2023.
The Plaintiff filed his Motion for Class Certification on February
27, 2023. Pursuant to the stipulated Scheduling Order dated
December 22, 2022, the deadline to file an opposition to
Plaintiff's Motion for Class Certification is April 17, 2023.
Brighthouse is a major provider of annuities and life insurance in
the United States. Established by MetLife, they are on a mission to
help people achieve financial security.
A copy of the Defendant's motion dated March 21, 2023 is available
from PacerMonitor.com at https://bit.ly/40RSfPx at no extra
charge.[CC]
The Defendant is represented by:
Jennifer S. Collins, Esq.
Nikole M. Crow, Esq.
WOMBLE BOND DICKINSON (US) LLP
271 17th Street NW
Atlanta, GA 30363
Telephone: (404) 872-7000
E-mail: Nikole.crow@wbd-us.com
Jennifer.Collins@wbd-us.com
- and -
Joseph M. McLaughlin, Esq.
Joshua C. Polster, Esq.
Anthony Carmen Piccirillo, Esq.
Amy L. Dawson, Esq.
SIMPSON THACHER & BARTLETT LLP
425 Lexington Avenue
New York, NY 10017
Telephone: (212) 455-2000
E-mail: jmclaughlin@stblaw.com
Joshua.polster@stblaw.com
Anthony.Piccirillo@stblaw.com
Amy.dawson@stblaw.com
CHESTER COUNTY, SC: Hall Seeks to Certify Inmate Class
------------------------------------------------------
In the class action lawsuit captioned as Hall, II v. Hegeman, et
al., Case No. 9:23-cv-01120-SAL-MHC (D.S.C.), the Plaintiff asks
the Court to enter an order certifying a class of:
"All presently incarcerated within the Chester County Detention
Center."
A copy of the Plaintiff's motion dated March 20, 2023 is available
from PacerMonitor.com at https://bit.ly/3zoMKfF at no extra
charge.
The Plaintiff appears pro se.[CC]
CIMAREX ENERGY: Oklahoma Court Declines to Strike Class Allegations
-------------------------------------------------------------------
In the class action lawsuit captioned as THE DUNCAN GROUP, LLC, on
behalf of itself and all others similarly situated, v. CIMAREX
ENERGY CO., Case No. 5:18-cv-00123-JD (W.D. Okla.), Hon. Judge Jodi
Dishman entered an order denying the Cimarex's motion to strike
class allegations.
The Court declines to strike the class allegations but will take up
the issues presented with the pending class certification motion.
Duncan, individually and on behalf of a class of others similarly
situated, brings a claim of breach of lease against Cimarex,
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 Complaint, Duncan defines the putative class as:
"All royalty owners in Oklahoma wells operated or leased by
Cimarex Energy Company that have produced gas or gas
constituents
(such as residue gas, or natural gas liquids) from January 1,
2013
to present and from which processing deductions have been taken
from royalty;"
Excluded from the Class are: (1) the Mineral Management Service
(Indian tribes and the United States); (2) Defendant, its
affiliates, and employees, officers and directors; (3) Any NYSE
or
NASDAQ listed company (and its subsidiaries) engaged in oil and
gas exploration, gathering, processing, or marketing; (4) all
royalty owners to the extent they have sued Defendant for
underpayment of royalties from January 1, 2013 to the present
before this suit was filed; (5) all royalty owners that
expressly
authorized in their leases the deduction of processing costs
from
royalties; and (6) all royalty owners to the extent their wells
are both subject to the class action settlement in Chieftain
Royalty Co. v. QEP Energy, No. 5:11-cv-00212-R, and the well
was
subsequently acquired by Defendant or any of its affiliates."
Duncan Group is an international retained search firm specializing
in the recruitment and training of Chiefs of Staff and C-Suite
staff.
Cimarex was a company engaged in hydrocarbon exploration,
particularly shale oil and gas drilling. It was organized in
Delaware and headquartered in Denver, Colorado, with operations
primarily in Texas, Oklahoma, and New Mexico.
A copy of the Court's order dated March 21, 2023 is available from
PacerMonitor.com at https://bit.ly/3zrY0I8 at no extra charge.[CC]
CIRCUIT DEFENDER'S: Jahid Seeks to Certify Class Action
-------------------------------------------------------
In the class action lawsuit captioned as Nasir A. Jahid v. Circuit
Defender's Office, William Graham, et al., Case No.
1:23-cv-01197-SDG-JSA D (N.D. Ga.), the Plaintiff asks the Court to
enter an order certifying a class action.
A copy of the Plaintiff's motion dated March 21, 2023 is available
from PacerMonitor.com at https://bit.ly/40ZmVOZ at no extra
charge.
The Plaintiff appears pro se. [CC]
CONVERGENT OUTSOURCING: Class Discovery Filing Due March 27, 2024
-----------------------------------------------------------------
In the class action lawsuit captioned as LEO GUY, v. CONVERGENT
OUTSOURCING INC., Case No. 2:22-cv-01558-MJP (W.D. Wash.), Hon.
Judge Marsha J. Pechman entered an order setting trial date &
related dates as follows:
-- Jury Trial Date Sept. 23, 2024
-- Deadline for filing amended pleadings Aug. 10, 2023
-- Reports from expert witness under Oct. 30, 2023
FRCP 26(a)(2) Due:
-- All motions related to discovery March 27, 2024
must be filed by and noted on the
motion calendar on the third Friday
thereafter:
-- Discovery completed by April 26, 2024
-- All dispositive motions must be filed by May 28, 2024
and noted on the motion calendar on the
fourth Friday thereafter:
A copy of the Court's order dated March 20, 2023 is available from
PacerMonitor.com at https://bit.ly/3m4pvEv at no extra charge.[CC]
CORECIVIC INC: Court Denies Barrientos' Bid for Class Certification
-------------------------------------------------------------------
In the case, WILHEN HILL BARRIENTOS, et al., Plaintiffs v.
CORECIVIC, INC., Defendant, Case No. 4:18-CV-70 (CDL) (M.D. Ga.),
Judge Clay D. Land of the U.S. District Court for the Middle
District of Georgia, Columbus Division, denies the Plaintiffs'
motion for class certification and their motion for spoliation
sanctions.
United States Immigration and Customs Enforcement ("ICE") detains
certain aliens while their removal proceedings are pending "or for
other reasons related to enforcement of the nation's immigration
laws." Stewart County, Georgia detains aliens on ICE's behalf at
Stewart Detention Center, which is operated by CoreCivic, Inc.
The Plaintiffs claim that CoreCivic enlists detainees in a
"voluntary work program" to provide cheap labor for operating
Stewart, which enables CoreCivic to increase its profits. They
further assert that CoreCivic uses coercive tactics to force the
detainees to keep working, including (1) a "deprivation scheme"
which threatens work program participants with serious harm if they
refuse to work and (2) a practice of physically restraining work
program participants who refuse to work.
The Plaintiffs contend that the food, clothing, and hygiene items
Stewart provides to its detainees are so inadequate that detainees
would suffer serious harm if they could not earn funds through the
work program and purchase necessities from the commissary.
Plaintiffs also allege that detainee workers are assigned to safer
housing than non-workers.
The Plaintiffs assert that after detainees join the work program,
they are coerced to remain in the program because they are subject
to physical restraint if they refuse to work. Detainees who are
removed from the work program can no longer earn money to purchase
items at Stewart's commissary. Refusal to work may result in
discipline in addition to removal from the work program, including
"lockdown" or "segregation," for refusing to work. The named
Plaintiffs joined the work program to get extra food, and they
remained in the program to keep getting extra food and to avoid
discipline.
The Plaintiffs seek to certify two classes pursuant to Rule
23(b)(2) and Rule 23(b)(3): a Forced Labor Class and an Unjust
Enrichment Class. Both classes include all civil immigration
detainees who participated in Stewart's "volunteer work program."
The Forced Labor Class' claims are under the Trafficking Victims
Protection Act ("TVPA",) 18 U.S.C. Section 1589 et seq., and the
Unjust Enrichment Class's claims are under Georgia unjust
enrichment law.
All the claims are based on the Plaintiffs' assertion that the work
program is not voluntary -- that CoreCivic coerces detainees to
perform labor at Stewart by using or threatening serious harm and
physical restraint if work program participants refuse to work.
CoreCivic, on the other hand, contends that the Plaintiffs cannot
establish causation on a class-wide basis, which would defeat
ascertainability, numerosity, commonality, and typicality.
Judge Land holds that notwithstanding the complexity of the
briefing, the issue is relatively simple: Are the claims of the
putative class members sufficiently common and typical such that
litigating them together as a certified class is appropriate under
Federal Rule of Civil Procedure 23?
When all the rhetoric and hyperbole is peeled away, Judge Land
notes that the essence of the Plaintiffs' claims is that CoreCivic
created an environment which had the effect of coercing putative
class members to participate in the work program, and then, upon
signing up for the program, the putative class members were trapped
in the program and unable to escape it. While policies and
practices may have existed that applied to every putative class
member who chose to participate in the program, he says the
Plaintiffs fail to recognize that not every putative class member
is similarly situated with other class members.
Judge Land finds that Plaintiffs have not established that the
critical issue of causation is susceptible to class-wide proof
under the circumstances presented. The Plaintiffs simply did not
point to sufficient evidence from which the Court could reasonably
conclude that every putative class member agreed to participate in
the Stewart work program because he was coerced to do so—or that
this issue is capable of class-wide resolution. The claim that
detainees were trapped in the work program once they signed up for
it suffers from the same commonality typicality and predominance
problems. For these reasons, the claims asserted are best suited
for individual and not class treatment. Judge Land denies the
motion for class certification.
In addition to their class certification motion, the Plaintiffs
filed a motion for spoliation sanctions because a CoreCivic
employee destroyed the detention files of Urbina Rojas and an
unknown number of other putative class members, even though
CoreCivic understood that it had an obligation to preserve such
documents. As a sanction, they seek an adverse inference jury
instruction requiring the jury to presume that Urbina Rojas's
testimony about his experience at Stewart is uncontroverted, plus
attorneys' fees associated with the sanctions motion.
Judge Land finds it difficult to see how CoreCivic's failure to
preserve the detention file will result in uncurable prejudice to
Urbina Rojas, which suggests that the practical importance of the
evidence is low. So, even if CoreCivic did wrongfully fail to
preserve the detention file, he is not convinced that the sanctions
Urbina Rojas seeks are warranted at this time. He thus declines to
impose spoliation sanctions based on the destruction of Urbina
Rojas's detention file. He notes that if CoreCivic tries to suggest
that Urbina Rojas was not placed in segregation by pointing to the
discipline log, then the Court would likely permit the factfinder
to consider the fact that CoreCivic destroyed the detention file,
which would have contained documentation regarding any segregation
placement.
The Plaintiffs also did not establish how they were prejudiced by
CoreCivic's failure to preserve the other detention files. There is
no contention that the Plaintiffs would be able to establish the
class certification requirements if they had access to the files.
Their chief concern is that CoreCivic's motion to exclude one of
their experts rested in part on his failure to consider enough
detainee grievances and disciplinary reports. But the motions to
exclude the experts are moot, and Judge Land declines to impose
spoliation sanctions based on the failure to preserve the other
detention files.
The parties also filed motions to strike the proposed testimony of
three experts under Federal Rule of Evidence 702 and Daubert v.
Merrell Dow Pharmaceuticals, Inc., 590 U.S. 579 (1993).
First, CoreCivic seeks to strike the Plaintiffs' psychiatrist
expert, Dr. Pablo Stewart. Judge Land reviewed the portions of Dr.
Stewart's report that the Plaintiffs rely on in their motion for
class certification. In those portions of his report, Dr. Stewart
opines that Stewart's food practices might coerce some detained
individuals to work, that segregation can cause psychological harm,
and that the transfer from worker housing to non-worker housing
could potentially result in harm.
Judge Land finds that even if it were to admit Dr. Stewart's
opinions over CoreCivic's objections, his opinions do not
demonstrate that causation can be established on a class-wide basis
using common evidence or that common issues predominate over
individual ones. He terminates the motion to exclude Dr. Stewart.
Second, CoreCivic moves to strike the Plaintiffs' economist expert,
Steven Schwartz. The Plaintiffs rely on Dr. Schwartz to establish a
class-wide damages model. Because he concludes that the issue of
causation cannot be determined on a class-wide basis, Judge Land
finds that he need not consider whether Dr. Schwartz class-wide
damages model reliably measures the damages suffered by the
putative class members. He terminates the motion to exclude Dr.
Schwartz.
Finally, the Plaintiffs move to strike CoreCivic's psychiatric
expert, Dr. Joseph Penn. Judge Land did not consider Dr. Penn's
opinion in ruling on the motion for class certification, so he
terminates the motion to exclude Dr. Penn as moot.
For these reasons, Judge Land finds that the Plaintiffs did not
meet their burden to prove that the class certification
requirements are met for the two classes they seek to certify.
Accordingly, he denies the Plaintiffs' motion for class
certification and their motion for spoliation sanctions. He
terminates as moot the motions to exclude experts. Given the
Court's ruling on class certification, the only claims remaining in
the action are the individual claims of the named Plaintiffs.
A full-text copy of the Court's March 28, 2023 Order is available
at https://tinyurl.com/4z3s99x7 from Leagle.com.
CREDIT SUISSE: Final Judgment Entered in Forex Rates Antitrust Suit
-------------------------------------------------------------------
Judge Lorna G. Schofield of the U.S. District Court for the
Southern District of New York enters an Order and Final Judgment in
the case, IN RE FOREIGN EXCHANGE BENCHMARK RATES ANTITRUST
LITIGATION, Case No. 13 Civ. 7789 (LGS) (S.D.N.Y.).
On Oct. 24, 2022, following a jury trial on the two issues with
respect to which class certification was granted, the Court entered
an Order for Judgment in favor of Defendants Credit Suisse AG,
Credit Suisse Group AG and Credit Suisse Securities (USA) LLC (the
"Credit Suisse Defendants") and against the Plaintiffs on their
Sherman Act, Section 1 claims in the Third Consolidated Amended
Class Action Complaint.
On March 21, 2023, the Plaintiffs and the Credit Suisse Defendants
filed a joint stipulation under Rule 15(a)(2) of the Federal Rules
of Civil Procedure to file a Fourth Consolidated Amended Class
Action Complaint that dropped all remaining claims not covered by
the Court's Oct. 24, 2022 Order for Judgment. On March 23, 2023,
they filed a joint letter motion requesting final judgment be
entered against the Fourth Amended Complaint with the Plaintiffs
disclaiming any intent to revive the dropped claims.
Accordingly, Judge Schofield enters judgment in favor of the Credit
Suisse Defendants and against the Plaintiffs on the Fourth Amended
Complaint.
The Clerk of Courts is directed to enter the judgment and close the
case.
A full-text copy of the Court's March 28, 2023 Order & Final
Judgment is available at https://tinyurl.com/5yv9sbte from
Leagle.com.
FAIRFIELD HEALTHCARE: Aboah Seeks Reconsideration of Court Ruling
------------------------------------------------------------------
In the class action lawsuit captioned as GWENDOLINE ABOAH and TANIA
STEWART individually and on behalf of all others similarly situated
V. FAIRFIELD HEALTHCARE SERVICES, INC. D/B/A BRIGHTSTAR CARE OF
FAIRFIELD & SOUTHBURY and PETER R. MOORE, Case No.
3:20-cv-00763-SVN (D. Conn.), the Plaintiffs ask the Court to enter
an order granting partial reconsideration of that portion of the
Court's Ruling that denied Plaintiffs' motion for conditional
certification of Fair Labor Standards Act (FLSA) Collective and
motion for class certification in respect of the Second Amended
Complaint against the Defendants.
Fairfield Healthcare is a hospital & health care company.
A copy of the Plaintiffs' motion dated March 21, 2023 is available
from PacerMonitor.com at https://bit.ly/3U21lXC at no extra
charge.[CC]
The Plaintiffs are represented by:
Nitor V. Egbarin, Esq.
100 Pearl Street, 14th Floor
Hartford, Connecticut 06103
Telephone: (860) 249-7180
Facsimile: (860) 408-1471
Mobile: (860) 680-1448
E-mail: NEgbarin@aol.com
FORD MOTOR: Bid to Strike Tucker's Class Claims Granted in Part
---------------------------------------------------------------
In the case, MICHAEL TUCKER, Plaintiff v. FORD MOTOR COMPANY,
Defendant, Case No. 4:22-cv-00430-AGF (E.D. Mo.), Judge Audrey G.
Fleissig of the U.S. District Court for the Eastern District of
Missouri, Eastern Division, grants in part and denies in part the
Defendant's motion to strike the Plaintiff's putative classes from
his petition.
The putative class action is before the Court on Ford's motion to
strike the Plaintiff's class allegations. In his complaint, the
Plaintiff describes two putative classes, including a "Declaratory
Relief Class", which includes all "persons and entities in the
state of Missouri who purchased a model year 2011-2018 Ford Focus
for their own use and not for resale," and a "Manifestation Class",
comprised of all of those "persons and entities" whose putative
class vehicles actually had a "subframe or undercarriage that
exhibited rust corrosion."
The Plaintiff asserts a cause of action for declaratory relief on
behalf of himself and the putative Declaratory Relief Class in
Count IV of his petition, as well as three causes of action on
behalf of the Manifestation Class: (i) a violation of the Missouri
Merchandising Practices Act ("MMPA") (Count I); (ii) the breach of
express and implied warranty (Count II); and (iii) unjust
enrichment (Count III).
The Plaintiff first filed the action in Missouri state court on
Feb. 1, 2019, alleging that a defect in his 2018 Ford Focus caused
excessive corrosion. At that time, he asserted only individual
claims against Ford and Bommarito Ford, Inc., the dealership which
sold him his vehicle. Over the next three years, the Plaintiff and
the then-defendants engaged in written discovery. After this
discovery, on March 17, 2022, the Plaintiff filed a third amended
petition against Ford only. This petition included claims on behalf
of putative classes. The Defendant then removed the case to this
Court pursuant to 28 U.S.C. Sections 1332(d), 1446, and 1453(b).
In his third amended petition, the Plaintiff asserts that he
purchased a new 2018 Ford Focus on Aug. 29, 2018. One month later,
he noticed extensive salt, corrosion, and rust on the lower engine
bay. Though the Plaintiff brought the car back to the dealership
for repair, all attempts at repairing the vehicle were
unsuccessful. Eventually, as part of a settlement with the
dealership, the dealership replaced the Plaintiff's vehicle with a
newer Ford Ranger. At oral argument, the Plaintiff confirmed the
sale took place in November 2021. The dealership is not named as a
defendant in the third amended petition.
The Defendant begins by asserting that neither of the Plaintiff's
putative classes can be certified. As to the Declaratory Relief
Class, it alleges that the class lacks Article III standing because
the class includes members who have never experienced rust
corrosion on their vehicles. It also claims that the Plaintiff
himself lacks standing to seek declaratory relief because he no
longer owns a 2018 Ford Focus. As to the Manifestation Class, the
Defendant argues that the class both includes members who lack
standing and is not ascertainable. It also argues against
permitting the Plaintiff to redefine his class to include only
Class Vehicles with "excessive" rust.
The Plaintiff argues that members of his putative Declaratory
Relief and Manifestation class have standing because the alleged
defect is inherent to the cars, even if rust has not yet appeared
on the vehicles. He also responds that he has standing to bring
these claims despite no longer owning a 2018 Ford Focus because
there is impending risk of injury from the defects in the vehicle
he had purchased, and because he was not reimbursed for the
unsuccessful attempts to repair his vehicle. As to
ascertainability, he contends that it is premature to determine
whether ascertainability will defeat the class, as the parties have
not yet engaged in class-specific discovery. Lastly, he asserts
that individual inquiries will not overwhelm his putative
Manifestation Class.
Judge Fleissig declines to strike the Plaintiff's Declaratory
Relief Class or Manifestation Class allegations on the basis of the
putative class members' lack of standing, prior to discovery on the
issue and a hearing on class certification. To the extent that the
Plaintiff's purported classes are overbroad, she is mindful of the
Plaintiff's ability to later modify the class definitions.
Overbreadth is therefore insufficient to justify striking the
Plaintiff's class allegations at this time.
As the Plaintiff's declaratory claims are moot, Judge Fleissig
holds that he lacks standing to bring a claim on behalf of the
Declaratory Relief class. The Plaintiff argues that the damage to
his car and the Defendant's failure to repair it both constitute
sufficient injuries-in-fact to confer standing on him at this stage
of the litigation. However, this does not explain how Plaintiff's
proposed declarative remedy may address his injury, especially as
he no longer owns one of the Class Vehicles in question. Therefore,
the Defendant's motion to strike the Declaratory Relief class is
granted.
Next, Judge Fleissig finds that the parties have not had sufficient
discovery to determine if any evidence exists to evaluate the
Plaintiff's claim on behalf of the class in the aggregate. As the
Plaintiff points out, common questions in the litigation include
whether the design of the proposed class vehicles was defective.
The determination of this question rests on the manufacture and
design of the vehicles' frames; thus, evidence regarding the
manufacture and design of the proposed class vehicles may resolve
the claim for all of the members included in the class. As the
Defendant cannot show that no additional evidence the Plaintiff
could present during discovery would permit the proposed class to
be certified, Judge Fleissig refuses to strike the Plaintiff's
Manifestation Class allegations on the basis of predominance.
The Plaintiff alleges that susceptibility to corrosion and the
model's failure to pass this corrosion test is the cause of both
his and the putative class members' underlying injuries. Thus,
without the benefit of further discovery, the operative facts
giving rise to both sets of claims are substantially similar enough
to confer standing on the Plaintiff to bring a claim for years of
Ford Focuses he did not purchase on behalf of the putative class.
Accordingly, Judge Fleissig again refuses to strike the Plaintiff's
class allegations regarding the 2011-2017 Ford Focuses in Count I
of his amended petition.
Lastly, Judge Fleissig finds that the warranty waiver as to class
claims does not distinguish between express and implied warranties,
and she cannot read such a distinction into the contract. When
viewed as a harmonious whole, and giving ordinary meaning to the
terms "any warranty-related claim," the warranty wavier applies to
both express and implied warranties. Thus, she strikes the
Plaintiff's class action claims for breach of both express and
implied warranty.
Accordingly, the Defendant's motion to strike Plaintiff's class
allegations is granted in part and denied part. She strikes the
Plaintiff's Declaratory Relief Class and warranty-related class
allegations in Count II of his petition.
A full-text copy of the Court's March 28, 2023 Memorandum & Order
is available at https://tinyurl.com/ms7mdjhk from Leagle.com.
FORD MOTOR: Bids to Compel Arbitration and Dismiss Lyman Suit OK'd
------------------------------------------------------------------
In the case, DAVID LYMAN, et al., Plaintiffs v. FORD MOTOR COMPANY,
Defendant, Case No. 21-10024 (E.D. Mich.), Judge Gershwin A. Drain
of the U.S. District Court for the Eastern District of Michigan,
Southern Division, grants Ford' Motion to Compel Arbitration of
Certain Plaintiffs' claims and Partial Motion to Dismiss
Plaintiffs' Second Amended Class Action Complaint.
The Plaintiffs and the members of the classes they propose to
represent purchased or leased Ford F-150 pickup trucks, beginning
with Model Year 2018, when Ford debuted its new and enhanced F-150
line equipped with a 5.0L engine. They allege the 5.0L engine's
piston ring assembly and cylinder coating are defective in the
Class Vehicles and engine oil is consumed at an excessive rate.
The Plaintiffs claim the engine is not capable of maintaining the
proper level of engine oil based on the care and maintenance
instructions set forth in the Owner's Manual. They claim the Oil
Consumption Defect is a serious issue for vehicle longevity and
safety. It can cause premature wear on an engine, lead to stalling
and even engine failure -- increasing the risk of accident and
injury.
On Jan. 6, 2021, the Plaintiffs filed an initial complaint on
behalf of Plaintiffs David Lyman, Timothy Thuering, and Vincent
Brady. After Ford filed a motion to dismiss, the Plaintiffs filed a
First Amended Class Action Complaint (FACAC) on May 3, 2021, which
asserted claims on behalf of the same three plaintiffs, as well as
new claims on behalf of Plaintiffs Marc Baus, Dennis Gabel, Gordon
McCardy, Jason Pierce, James Rittmanic, Michelle and Richard
Shawley, Thermon Stacy, Ronnie Swindell, Judson Wessbecher, and
John Wiley.
On July 1, 2021, Ford moved to dismiss the FACAC. After full
briefing and a hearing, the Court's March 22, 2022 Opinion and
Order dismissed Plaintiffs' implied warranty, nationwide common
law, unjust enrichment and injunctive relief claims in the FACAC.
On July 1, 2021, Ford also moved to compel the claims of five
plaintiffs to arbitration: Dennis Gabel, Gordon McCardy, Jason
Pierce, James Rittmanic, and Judson Wessbecher. Ford's motion was
based on the arbitration agreement contained in the Motor Vehicle
Retail Installment Sales Contracts ("RISCs") that each Plaintiff
had signed when he financed his vehicle through Ford Motor Credit
Co.
After full briefing and a hearing, the Court issued its Opinion and
Order compelling the claims of Plaintiffs Gabel, McCardy, Pierce,
Rittmanic, and Wessbecher to arbitration, in accordance with the
delegation clause in their RISC contracts. At the Court's
direction, the remaining parties proceeded to discovery on the
remaining claims in the Plaintiffs' FACAC.
When the remaining the Plaintiffs made their initial production of
documents in response to Ford's requests for production, Ford
discovered that Plaintiffs Wiley, Swindell, Baus, and Thuering had
also entered into arbitration agreements. Wiley and Swindell each
executed a Buyer's Order, Agreement & Vehicle Information Form with
an independent, authorized Ford dealership; Baus executed a Motor
Vehicle Retail Order with a Ford dealership; and Thuering executed
a Promissory Note and Security Agreement with Citizens Bank.
Presently before the Court is the Ford's Motion to Compel
Arbitration of Certain Plaintiffs' claims, filed on July 20, 2022.
Also, before the Court is its Partial Motion to Dismiss the Second
Amended Class Action Complaint (SACAC), likewise filed on July 20,
2022. These matters are fully briefed. Upon review of the parties'
submissions, Judge Drain concludes that oral argument will not aid
in the resolution of these matters. Accordingly, he determines
Ford's Motions on the briefs.
As to Ford's Motion to Compel Arbitration, Judge Drain finds that
Plaintiffs Wiley and Swindell's claims are subject to valid and
binding arbitration clauses that contain explicit delegation
language materially identical to the RISC1 arbitration provision
already considered by the Court. Similarly, Plaintiff Thuering's
arbitration clause states that disputes covered by the arbitration
clause. And even if the waiver issue is appropriate for the Court
to consider, Ford has not waived its right to compel arbitration.
Because Plaintiffs Wiley, Swindell, Baus, and Thuering signed
arbitration agreements that clearly and unmistakably delegate
issues of arbitrability to an arbitrator to decide in the first
instance, they must also be compelled to arbitrate their claims.
In its Motion to Dismiss, Ford first argues the Court's Opinion and
Order on Ford's Motion to Dismiss the FACAC requires dismissal of
nearly half the claims in the SACAC. The Plaintiff does not oppose
dismissal of these claims and included them in the SACAC only to
preserve them for any eventual appeal.
Judge Drain opines that while Plaintiff Flynn's implied warranty
claim and unjust enrichment claims under Virginia law were not yet
at issue in the March 22, 2022 Opinion and Order, the Plaintiffs
concede that his claims are substantially indistinguishable from
the implied warranty and unjust enrichment claims already dismissed
by this Court. As such, their response indicates they will also
stipulate that the Court's prior order is binding on the Virginia
implied warranty and unjust enrichment claims alleged in the SACAC.
Accordingly, for these reasons, Counts 2-4, 6, 9, 12, 15, 18, 21
and 23 are dismissed.
Ford also asserts that Plaintiff Flynn's negligent
misrepresentation claim is barred by the economic loss rule under
Virginia law. The Plaintiffs counter that the economic loss
doctrine does not bar Plaintiff Flynn's negligent misrepresentation
claim because his claim is based on an independent duty to provide
honest and accurate information or other statutory duties under the
Virginia Consumer Protection Act.
Judge Drain finds that Plaintiff Flynn has not alleged any
non-economic injuries that would bring his negligent
misrepresentation claim outside Virginia's economic loss rule.
Moreover, the Plaintiffs fail to cite any authority for the
proposition that the Virginia Consumer Protection Act creates an
independent duty that circumvents Virginia's economic loss rule
barring constructive fraud claims. For all of these reasons,
Plaintiff Flynn's negligent misrepresentation claim is dismissed.
Accordingly, Ford's Motion to Compel Arbitration is granted. The
claims brought by Plaintiffs Wiley, Swindell, Baus, and Thuering in
the SACAC are stayed pending resolution of the arbitrability issues
raised. Ford's Partial Motion to Dismiss is also granted. Counts
2-6, 9, 12, 15, 18, 21 and 23 are dismsised.
A full-text copy of the Court's March 28, 2023 Opinion & Order is
available at https://tinyurl.com/49sskkp9 from Leagle.com.
HAWAII: $143K in Admin. and Attys.' Fees Awarded in ERK v. DOE
--------------------------------------------------------------
In the case, E.R.K, through his legal guardian, R.K., et al.,
Plaintiffs v. DEPARTMENT OF EDUCATION, State of Hawaii, Defendant,
Civil No. 10-00436 SOM/RT (D. Haw.), Judge Susan Oki Mollway of the
U.S. District Court for the District of Hawaii grants in part and
denies in part the Plaintiffs' motion for administrative and
attorneys' fees.
The certified class action, originally filed in 2010, was filed to
address the denial by the State of Hawaii Department of Education
("DOE") of services under the Individuals with Disabilities
Education Act ("IDEA") to individuals that the DOE viewed as having
"aged out" of being eligible to receive services. Originally
assigned to a different district court judge, the case went to the
Ninth Circuit, which held that the individuals had been prematurely
denied services. On remand, the matter was settled, with the DOE
agreeing to deposit $8.75 million into an interest-bearing bank
account ("Services Fund") and to pay the class counsel $1.5 million
in attorneys' fees and costs, an additional $250,000 in attorneys'
fees with court approval, and such other attorneys' fees as class
counsel might request from the court with notice to DOE counsel.
As of July 2022, the Services Fund had a balance of $285,779.15,
with approximately $95,000 in pending disbursements at that time,
and the court had before it the matters sought by the present
motion. The DOE argues, and the Court agrees, that any additional
attorneys' fees must be paid out of the Services Fund because the
DOE has no further obligation under the Settlement Agreement.
To date, the Plaintiffs have received more than $2 million in
attorneys' fees. In the present motion, filed on July 1, 2022, the
Plaintiffs seek $238,241.50 in fees. This amount covers the same
fees that the Court declined to award as administrative fees in ECF
No. 700.
The Plaintiffs' motion divides the requested fees into 23 "Tasks."
When fees are requested as attorneys' fees but appear
administrative in nature, Judge Mollway does not convert the
request to one for administrative fees. She reasons that the Court
has already given the Plaintiffs a second chance to seek fees.
Ultimately, she awards $2,425.50 for the administrative work
reflected in Category 1 and $140,865.90 in attorneys' fees for
Categories 3 through 23. Nothing is awarded for Category 2, which
involves "write offs" for which the Plaintiffs are not seeking
fees.
In sum, Judge Mollway concludes that when she considers the
administrative fees sought, her best estimate is that 30% of those
fees are not sufficiently supported. In reducing the administrative
fees by 30%, she is considering not only the issues with the
timesheets identified but also an hourly rate greater than $25 but
less than $50 per hour.
With respect to the attorneys' fees sought, Judge Mollway awards
60% of the amount sought, concluding that an overall reduction of
40% recognizes issues of concern with the timesheet entries and the
numerous instances in which the Plaintiffs did not show that the
tasks performed needed to be done by attorneys charging attorneys'
hourly rates. She does not reach these percentages lightly.
Judge Mollway says the 60% award recognizes that the Plaintiffs'
counsel has clearly performed commendable work on behalf of
individuals who benefitted from the legal services provided. She
also recognizes that there may well have been efficiencies in
having knowledgeable counsel handle certain matters. But she has to
deal with what the submissions in the record support, and many of
the entries were problematic. Moreover, the fees were initially
sought as administrative fees, presumably because of the
administrative nature of much of the work.
For these reasons, Judge Mollway grants in part and denies in part
the Plaintiffs' motion for administrative and attorneys' fees. She
awards a total of $143,291.40 from the Services Fund. This amount
is calculated by adding an award of $2,425.50 of the $3,465.00
requested (70% of the requested amount) for administrative work,
plus an award of $140,865.90 of the $234,776.50 requested (60% of
the requested amount) in attorneys' fees. The fees awarded from the
Services Fund will not exceed the balance of the Services Fund.
A full-text copy of the Court's March 28, 2023 Order is available
at https://tinyurl.com/y7z4pn3w from Leagle.com.
HIGHLAND CAPITAL: Fifth Circuit Affirms Dismissal of Lanotte Suit
-----------------------------------------------------------------
In the case, Susan Lanotte, derivatively on behalf of Highland
Global Allocation Fund, and on behalf of herself and all others
similarly situated, Plaintiff-Appellant v. Highland Capital
Management Fund Advisors, L.P.; Timothy Hui; Bryan Ward; Bob
Froehlich; John Honis; Ethan Powell; Highland Global Allocation
Fund, Nominal Defendant, Defendants-Appellees, Case No. 20-10649
(5th Cir.), the U.S. Court of Appeals for the Fifth Circuit affirms
the district court's dismissal of Lanotte's shareholder derivative
suit.
Lanotte appeals the district court's dismissal of her shareholder
derivative suit on behalf of the Highland Capital Global Allocation
Fund ("GA Fund") after the court found a majority of the
independent trustees constituting a quorum voted to reject the
Plaintiff's demand after a reasonable and good faith
investigation.
Lanotte is a shareholder of nominal the Defendant, a business trust
organized under the laws of Massachusetts. Highland Capital
Management Fund Advisors, L.P. ("Advisor"), manager of the GA Fund,
had the GA Fund invest in the Highland Energy MLP Fund ("MLP Fund")
-- which the Advisor also managed -- at a time when the MLP Fund's
value was dropping.
Proceeding under the federal district court's diversity
jurisdiction, Lanotte brought a shareholder derivative action under
Massachusetts law on behalf of the GA Fund against the Advisor and
five of the GA Fund's six trustees -- Timothy Hui, Brwayn Ward, Bob
Froehlich, John Honis, and Ethan Powell ("Trustees") (collectively,
"Defendants"). She alleged breach of contract and breach of
fiduciary duty. Lanotte also styled the case as a purported class
action on behalf of the GA Fund's other shareholders.
The Defendants brought a motion to dismiss the derivative suit
pursuant to chapter 156D, Section 7.44 of the Massachusetts General
Laws, arguing that a quorum of its independent trustees -- the five
Trustees -- voted to reject Lanotte's demand after a reasonable and
good faith investigation. The district court agreed and dismissed
the suit. Lanotte appealed.
Lanotte contends on appeal that the district court (1) utilized the
wrong legal standard to evaluate whether trustees were
"independent," (2) erred by finding that a majority of the trustees
were independent, and (3) erred by finding that the decision to
reject Lanotte's demand was made in good faith and based on a
reasonable investigation.
First, the Fifth Circuit says the district court properly applied
the rules of statutory interpretation in concluding that Section 2B
is the relevant standard for a trust that is an investment company
like the GA Fund. Section 2B was in force at the time that Section
7.44 was enacted. The district court correctly reasoned that there
is not necessarily a conflict between Section 7.44 and Section 2B
because the two statutes can be applied together, but that to the
extent there is a conflict, Section 2B should govern as the more
specific statute applicable to the trustees.
Nor did the district court err in concluding that a majority of the
board of trustees was independent under Section 2B. The Fifth
Circuit finds that the Defendants set forth adequate facts to show
a majority of the board of trustees was independent at the time it
rejected Lanotte's demand, and the burden was on Lanotte to allege
with particularity facts rebutting the corporation's filing. And,
Lanotte does not meaningfully argue her allegations show the
Trustees were under the controlling influence of another.
Finally, the Fifth Circuit holds that the district court correctly
found the Trustees' decision to reject Lanotte's demand was made in
good faith and based on a reasonable investigation. Because a
majority of the board of trustees was independent at the time the
determination was made, the burden is on Lanotte to show these
requirements have not been met.
For these reasons, the judgment of the district court is affirmed.
A full-text copy of the Court's March 28, 2023 Opinion is available
at https://tinyurl.com/4f5ncykm from Leagle.com.
HOME DEPOT: Filing of Class Cert. Bid Due Jan. 31, 2024
-------------------------------------------------------
In the class action lawsuit captioned as MIKE CLARK-ALONSO, v. HOME
DEPOT U.S.A., INC., Case No. 3:22-cv-07487-AGT (N.D. Cal.), Hon.
Judge Alex G. Tse entered a case management order as follows:
Event Deadline
-- Class Cert Designation of Experts: Dec. 5, 2023
-- Class Cert Designation of Rebuttal Dec. 15, 2023
Experts:
-- Last Day to Join Parties or Amend Pleadings Jan. 5, 2024
-- Class Cert Discovery Cutoff Jan. 17, 2024
(Fact and Expert):
-- File Motion for Class Certification Jan. 31, 2024
-- File Dispositive Motions Jan. 31, 2024
-- File Opposition to Motion for Class Mar. 7, 2024
Certification
-- File Reply in Support of Motion for Class Apr. 4, 2024
Certification
-- Hearing on Motion for Class Certification Apr. 26, 2024
Home Depot is an American multinational home improvement retail
corporation that sells tools, construction products, appliances,
and services, including fuel and transportation rentals.
A copy of the Court's order dated March 20, 2023 is available from
PacerMonitor.com at https://bit.ly/3MaLF2k at no extra charge.[CC]
HOME PARTNERS: Class Cert. Discovery in Richmond Due March 1, 2024
-------------------------------------------------------------------
In the class action lawsuit captioned as FRANK RICHMOND et al., v.
HOME PARTNERS HOLDINGS LLC, et al., Case No. 3:22-cv-05704-DGE
(W.D. Wash.), Hon. Judge David G. Estudillo entered an order
setting class certification briefing schedule as follows:
-- Discovery shall be completed by: March 1, 2024
-- Plaintiffs' expert disclosure June 1, 2023
and reports shall be due on or before:
-- Defendants' rebuttal expert disclosures
and reports shall be due on: July 15, 2023
-- Depositions to be completed by: Aug. 30, 2023
-- Plaintiffs shall file any motion Oct. 31, 2023
for class certification on or before:
-- Defendants' dispositive motions as to Nov. 14, 2023
individual defendants due on or before:
-- All dispositive motions shall be March 31,2024
due on or before:
A copy of the Court's order dated March 20, 2023 is available from
PacerMonitor.com at https://bit.ly/3KrLFcZ at no extra charge.[CC]
JOSEPH R. BIDEN: Missouri Seeks Leave to Amend Class Complaint
--------------------------------------------------------------
In the class action lawsuit captioned as STATE OF MISSOURI, STATE
OF LOUISIANA, et al. v. JOSEPH R. BIDEN, JR., in his official
capacity as President of the United States, et al., Case No.
3:22-cv-01213-TAD-KDM (W.D. La.), the Plaintiffs ask the Court to
enter an order granting them leave to amend their Complaint to add
class allegations and for class certification.
A copy of the Plaintiffs' motion dated March 20, 2023 is available
from PacerMonitor.com at https://bit.ly/3zoixgy at no extra
charge.[CC]
Counsel for State of Missouri, are:
Andrew Bailey, Esq.
Joshua M. Divine, Esq.
Charles F. Capps, Esq.
Todd A. Scott, Esq.
Kenneth C. Capps, Esq.
MISSOURI ATTORNEY GENERAL'S OFFICE
Post Office Box 899
Jefferson City, MO 65102
Telephone: (573) 751-8870
charles.capps@ago.mo.gov
Counsel for the Plaintiffs Dr. Jayanta Bhattacharya, Dr. Martin
Kulldorff, Dr. Aaron Kheriaty, and Jill Hines:
Jenin Younes, Esq.
John J. Vecchione, Esq.
NEW CIVIL LIBERTIES ALLIANCE
1225 19th Street N.W., Suite 450
Washington, DC 20036
Telephone: (202) 918-6905
E-mail: jenin.younes@ncla.legal
LABOR SOURCE: Speight Suit Seeks to Certify Class, Subclass
-----------------------------------------------------------
In the class action lawsuit captioned as BILLY SPEIGHT,
Individually and on behalf of all others similarly situated, v.
LABOR SOURCE, LLC, Case No. 4:21-cv-00112-FL (E.D.N.C.), the
Plaintiff asks the Court to enter an order certifying a class of
technicians, carpenters, apprentices, cleaning crew, plumbers,
welders, and other Laborers with similar job duties employed by
Defendant within the State of North Carolina during the Class
Period.
In addition, the Plaintiff requests that the Court certifies the
following Subclass: any Class Member who was designated as or
performed the duties of a Crew Lead.
Labor Source is a staffing company.
A copy of the Plaintiff's motion dated March 20, 2023 is available
from PacerMonitor.com at https://bit.ly/3U096gQ at no extra
charge.[CC]
The Plaintiff is represented by:
Carolyn H. Cottrell, Esq.
Ori Edelstein, Esq.
Eugene Zinovyev, Esq.
John J. Nestico, Esq.
SCHNEIDER WALLACE COTTRELL KONECKY LLP
2000 Powell Street, Suite 1400
Emeryville, CA 94608
E-mail: ccottrell@schneiderwallace.com
oedelstein@schneiderwallace.com
ezinovyev@schneiderwallace.com
jnestico@schneiderwallace.com
The Defendant is represented by:
Kevin S. Joyner, Esq.
Justin M. Dean, Esq.
OGLETREE, DEAKINS, NASH, SMOAK & STEWART P.C.
8529 Six Forks Road, Forum IV, Suite 600
Raleigh, NC 27615
Telephone: (919) 787-9700
Facsimile: (919) 783-9412
E-mail: kevin.joyner@ogletree.com
justin.dean@ogletree.com
LENOVO US: Ham Consumer Class Suit Dismissed Without Prejudice
--------------------------------------------------------------
In the case, ANTHONY HAM, individually and on behalf of all others
similarly situated, Plaintiff v. LENOVO (UNITED STATES) INC.,
Defendant, Case No. 22-cv-05131 (ALC) (S.D.N.Y.), Judge Andrew L.
Carter, Jr., of the U.S. District Court for the Southern District
of New York grants the Defendant's motion to dismiss.
The Defendant moves to dismiss the Plaintiff's complaint for lack
of subject matter jurisdiction pursuant to Federal Rule of Civil
Procedure 12(b)(1) and for failure to state a claim pursuant to
Federal Rule of Civil Procedure 12(b)(6).
The Plaintiff brings the putative class action suit against
Defendant Lenovo alleging (1) deceptive acts or practices in
violation of the New York Deceptive Practice Act, N.Y.G.B.L.
Section 349 et seq.; (2) false advertising in violation New York
Deceptive Practice Act, N.Y.G.B.L. Section 350 et seq.; (3) breach
of express warranty; (4) breach of implied warranty; (5) fraud; and
(6) unjust enrichment.
Ham is a resident of Champaign, Illinois and is a citizen of
Illinois. Lenovo is a Delaware corporation with its headquarters in
Morrisville, North Carolina. The Defendant designs, manufactures
advertises, and sells the "Products" at issue. Lenovo, the single
largest manufacturer of notebook computers in the world and one of
the largest desktop computer manufacturers, operates a retail
website, Lenovo.com, where it offers its laptop computers, desktop
computers, and computer peripherals for sale directly to
consumers.
The Plaintiff asserts that the Defendant deceives its customers
through a years-long policy of fabricating fictitious valuations
for its laptop and desktop computers, falsely representing those
valuations as the "estimated value" of their products, and then
advertising purported discounts based on those fictitious
valuations. He alleges that these advertised List Prices and
purported Discounts are "completely illusory or grossly
overstated," that the Defendant fabricates a number using
undisclosed formulas bearing no resemblance to the market, and they
use the fictitious List Price or Estimated Value to create the
appearance of a significant price discrepancy and the impression of
significantly better quality, higher value Products and greater
savings for their customers.
In support of these allegations, the Plaintiff points to his own
experience purchasing a Product and the Complaint includes
descriptions of the Website alongside screengrabs of the checkout
process on the Website. Ham purchased one of the Products from
Lenovo's website. In June 2020 when he visited Lenovo.com, the site
prominently advertised "All Think on Sale!" and promised that
consumers could "save up to 65% on ThinkPad laptops" with several
flagship Lenovo laptops purportedly Discounted below the banner.
One June 17, 2020, the Plaintiff purchased a "T495 (14') AMD 3700U
with 8GB of RAM and a 256GB capacity solid state hard drive" on
Lenovo.com for a Sale Price of $969. When he purchased the Laptop,
the computer's product page advertised a "Web Price," which the
page suggested was the original price or actual value of the
product, a substantially lower Sale Price of $969, and significant
purported "Savings." Around the time the Plaintiff purchased the
T495, Lenovo advertised the Laptop at a Sale Price of $1,037.40
supposedly discounted from a substantially higher List Price of
$1,729. The Defendant highlighted a supposed savings of $691.60 in
the checkout process.
Despite this purported Web Price, the Plaintiff asserts that the
actual price offered for the Laptop was not at any time that price
displayed on Lenovo's website, nor was this Web Price ever the
prevailing market price for the Laptop. Additionally, at the time
of the Plaintiff's purchase, the Plaintiff asserts that no other
retailer selling this configuration of the Laptop sold the T495
Laptop at the Web Price of $1,729 and that at the time of his
purchase, models substantially similar to his T495 were available
for a price lower than Lenovo's Sale Price.
The Plaintiff asserts he relied on the company's inflated
valuations and illusory discounts because the Defendant misled him
into believing that the fictitious list price stated on the Lenovo
website was the actual, prevailing market price for the Laptop and
that he was receiving a substantial discount from the list price.
He also claims that the Defendant misled him into believing that
the discount offered was only for a limited time and thus
motivating him to act more quickly and spend less time comparing
prices and models elsewhere. He then explains that had he known
that the Product was actually worth significantly less than Lenovo
represented and that the purported Savings touted by Defendant were
entirely illusory, then he would not have purchased the Laptop from
Lenovo.com.
The Defendant submits three declarations and numerous exhibits in
connection with its Motion to Dismiss challenging the Plaintiff's
factual allegations concerning the value of the Laptop for
standing. First, it argues that the Plaintiff does not allege any
defects in the performance of his Laptop and Defendant factually
alleges, through the Declaration of Carlo Savino, that Plaintiff
submitted a 5-star review on the Website 11 days after Plaintiff
placed his order. Second, it alleges that this particular device
was not available for sale at the time of Plaintiff's purchase on
either Lenovo's Website or eBay's marketplace. Third, it alleges
that the Plaintiff falsely identifies that they are from "Lenovo's
own amazon.com," Lenovo actually does not sell products directly on
Amazon, Lenovo products for sale on amazon.com are sold by
third-parties and they have no control over the prices set by those
third-parties.
The Plaintiff brings claims for violations of N.Y.G.B.L. Section
349 and N.Y.G.B.L. Section 350, breach of express warranty, breach
of implied warranty, fraud, and unjust enrichment against Defendant
Lenovo. The Defendant asserts the Plaintiff lacks Article III
standing to bring the action and that the Complaint fails to state
a claim for upon which relief can be granted.
The Defendant argues that the Plaintiff's allegations fail to
plausibly allege that he suffered an injury caused by Lenovo,
thereby defeating his claims under the N.Y.G.B.L. and his claims
for breach of warranty and fraud. It additionally argues that the
Plaintiff's warranty claims also fail because (a) Lenovo's Limited
Warranty bars the claims; (b) Lenovo did not make a false
affirmation of fact; (c) the Plaintiff did not provide adequate
pre-suit notice; and (d) the laptop at issue was merchantable.
Furthermore, the Defendant contends that the Plaintiff's fraud
claim also fails because he has not pled fraudulent intent.
Finally, it argues that the Plaintiff fails to adequately plead
that Lenovo was unjustly enriched.
The Defendant seeks to dismiss the Plaintiff's Complaint for lack
of standing -- that is, for the Plaintiff's failure to allege an
injury-in-fact -- and for failure to state a claim.
Judge Carter first addresses the Defendant's challenge to subject
matter jurisdiction and only analyzes its remaining arguments if he
has subject matter jurisdiction over the case. He finds that, at
this juncture, the Plaintiff has adequately alleged an
injury-in-fact for purposes of Article III standing.
The Plaintiff is entitled to rely on the allegations of the
Complaint in opposition to the motion to dismiss for lack of
standing He has pleaded that Lenovo made clear representations
regarding the actual quality of value of his Laptop through the
listed Web Price, that the Plaintiff was induced to purchase the
Laptop because he believed that the Web Price stated on the Lenovo
website was the actual, prevailing market price for the Laptop and
that he was receiving a substantial discount from the Web Price,
and that this fictitious pricing scheme induced him to forgo better
deals on identical, similar, or even better products for a similar
or lower price. Therefore, the Plaintiff has adequately alleged an
injury-in-fact for purposes of Article III standing.
Judge Carter also agrees that the alleged misrepresentation is
nearly identical as to all the Products. The Defendant's alleged
scheme includes an original list price, represented as either the
Web Price or Estimated Value, a lower price displayed as the Sale
Price and purported "savings" were displayed to the consumers. He
also agrees that the laptop Products are largely similar;
therefore, at this stage of the litigation, he denies the
Defendant's motion on this basis.
The Plaintiff alleges that he would not have purchased the Laptop
if he knew the alleged truth regarding the discount. He has not
pleaded a risk of future injury. Therefore, Judge Carter finds that
the Plaintiff does not have individual standing to seek injunctive
relief. Accordingly, he does not have standing on behalf of the
class to seek injunctive relief, and the Defendant's motion on this
ground is granted and the Plaintiff's request for injunctive relief
for lack of subject matter jurisdiction pursuant to Rule 12(b)(1)
is dismissed.
Next, the Plaintiff's theories of injury rely on the allegation
that he was induced to buy the Laptop because of the prospect of
the purported savings and the Defendant's misrepresentation of the
actual quality and value of the Laptop. However, disappointed
bargain-hunters do not suffer any actual injuries or damages simply
because they did not get as good a deal as they expected.
Additionally, the Plaintiff does not allege that the Laptop he
received was worth less than the value he paid. While Judge Carter
is uncertain how the Defendant comes to the original list price,
the fact that the Web Price is not directly tied to a past price on
the Website does not in itself demonstrate that the Plaintiff's
Laptop is worth less than what he paid for. Therefore, the
Plaintiff has failed to establish a cognizable injury and his
N.Y.G.B.L. claims are dismissed for failure to state a claim.
When the Plaintiff purchased his Laptop, he agreed to the terms of
Lenovo's Sales Agreement. The Sales Agreement expressly
incorporates the Lenovo Limited Warranty. Lenovo warranted only
that the Laptop will be "free from defects in materials and
workmanship under normal use during the warranty period." In
addition, the limitation of liability conspicuously disclaims, with
bolded and capitalized font, liability for "anticipated savings."
Therefore, Judge Carter holds that the Plaintiff has disclaimed the
express and implied warranty claims he asserted.
The Plaintiff also brings a claim for fraud. Under New York law, to
allege fraud, the complaint must allege "a representation of
material fact, falsity, scienter, reliance and injury." The
Plaintiffs have failed to plead injury. Therefore, this claim
fails.
Finally, the Plaintiff's unjust enrichment claim is premised on the
allegation that he "purchased the Products based on the Defendants'
representations of List Price or Estimated Value." These are the
same factual allegations as his other claims, and he has not
alleged any damages separate from those other claims. Therefore,
the Plaintiff's unjust enrichment claim is dismissed as
duplicative.
For the foregoing reasons, Judge Carter grants the Defendant's
motion to dismiss without prejudice. The Clerk of the Court is
directed to terminate ECF No. 21 and to change the caption of the
case to remove LGL as a defendant. The Plaintiff is granted leave
to amend his Complaint within 21 days of the entry of the Order.
A full-text copy of the Court's March 28, 2023 Opinion & Order is
available at https://tinyurl.com/5n8dk28s from Leagle.com.
MCKESSON CORPORATION: Filing of Class Status Bid Due Nov. 28
------------------------------------------------------------
In the class action lawsuit captioned as SOVATANA SAUT and JOHN
HISATO NAKATANI, individually, and on behalf of themselves and all
others similarly situated, v. MCKESSON CORPORATION, a Delaware
corporation; and DOES 1 through 50, inclusive, Case No.
2:22-cv-05707-DMG-KES (C.D. Cal.), Hon. Judge Dolly M. Gee entered
an order modifying pretrial and trial dates and deadlines as
follows:
-- Trial: Oct. 8, 2024
-- Final Pretrial Conference: Sept. 10, 2024
-- Early Mediation Deadline: Oct. 11, 2023
-- Joint Report re Results of Early Oct. 18, 2023
Mediation:
-- Class Certification Motion: Nov. 28, 2023
-- Opposition to Class Certification Jan. 29, 2024
Motion:
-- Reply in Support of Class March 29,2024
Certification Motion:
-- Hearing on Class Certification Apr. 12, 2024
Motion:
McKesson is an American company distributing pharmaceuticals and
providing health information technology, medical supplies, and care
management tools.
A copy of the Court's order dated March 20, 2023 is available from
PacerMonitor.com at https://bit.ly/40ZlIXX at no extra charge.[CC]
MDL 2262: $1.75MM Class Deal With MUFG, et al., Gets Final Approval
-------------------------------------------------------------------
In the case, IN RE LIBOR-BASED FINANCIAL INSTRUMENTS ANTITRUST
LITIGATION THIS DOCUMENT RELATES TO: Case No. 12-CV-1025 (NRB), MDL
No. 2262, Master File No. 1:11-md-2262-NRB (S.D.N.Y.), Judge Naomi
Reice Buchwald of the U.S. District Court for the Southern District
of New York grants the Bondholder Plaintiffs' Motion for Final
Approval of Subsequent Settlements with the Settling Defendants.
An action is pending before the Court styled Ellen Gelboim and
Linda Zacher v. Credit Suisse Group AG, et al., Case No. 1025
(NRB), consolidated in In Re Libor-Based Fin. Instruments Litig.,
No. 11-md-2262-NRB (the "Bondholder Action").
Bondholder Plaintiffs Ellen Gelboim and Linda Zacher have moved
pursuant to Federal Rule of Civil Procedure 23(e) for an Order
granting final approval to the settlements (collectively, the
"Subsequent Settlements") with Defendants MUFG Bank, Ltd., f/k/a
The Bank of Tokyo-Mitsubishi UFJ Ltd. ("MUFG"), Credit Suisse Group
AG, and The Norinchukin Bank (together, the "Settling Defendants")
and final approval of the Plan of Allocation.
On March 28, 2023, following due notice to the Subsequent
Settlement Classes, the Court conducted a hearing to consider the
aforesaid motion.
Judge Buchwald has considered the said motion, including the
Settlement Agreements and other documents submitted in connection
with the Bondholder Plaintiffs' Motion for Final Approval of
Subsequent Settlements with the Settling Defendants. She finds that
each of the Subsequent Settlements is fair, reasonable, and
adequate as to, and in the best interests of, all members of the
respective Subsequent Settlement Classes.
Moreover, Judge Buchwald concludes as follows:
a. The aggregate settlement funds total $1,749,000
(Subsequent Settlement Funds), and consist of the following:
$750,000 paid by MUFG, $550,000 paid by Credit Suisse, and $449,000
paid by Norinchukin;
b. The Subsequent Settlements were negotiated by counsel with
significant experience litigating antitrust class actions; are the
result of vigorous arm's length negotiations undertaken in good
faith; and fall within the range of possible approval;
c. The Bondholder Action is fully and finally dismissed as to
all non-settled defendants, and thus the value of immediate
monetary recovery outweighs the certainty of no recovery in the
litigation; and
d. The judgment of Counsel for the Subsequent Settlement
Classes that the Subsequent Settlements are fair and reasonable,
and the reaction of the members of the Subsequent Settlement
Classes to the Subsequent Settlements, are entitled to great
weight.
Accordingly, Judge Buchwald grants final approval of each of the
Subsequent Settlements and directs the Subsequent Settlements'
consummation according to their terms. She finally approves the
Plan of Allocation for the distribution of Subsequent Settlement
funds.
Pursuant to Rule 23 of the Federal Rules of Civil Procedure, Judge
Buchwald certifies, solely for purposes of effectuating the
Subsequent Settlements set forth in each of the Settlement
Agreements ("Subsequent Settlement Classes").
The settlement class for MUFG is defined as follows: All persons
and entities (other than defendants in the Bondholder Action and
their affiliated persons and entities) who owned any interest in
(including beneficially or in street name) any debt security that
was assigned a unique identification number by the CUSIP system, on
which interest was payable at any time between Aug. 1, 2007, and
May 31, 2010, and where that interest was payable at a rate
expressly tied to the U.S. Dollar LIBOR rate (LIBOR-Based Debt
Security); however, any such securities that were issued by any
Defendant, including its subsidiaries and affiliates, as obligor,
are excluded from the definition of USD LIBOR-Based Debt Security.
The settlement class for Credit Suisse and Norinchukin is each
defined as follows: All persons and entities (other than defendants
in the Bondholder Action and their affiliated persons and entities)
who owned (including beneficially or in street name) any debt
security that was assigned a unique identification number by the
CUSIP system, on which interest was payable at any time between
Aug. 1, 2007, and May 31, 2010, and where that interest was payable
at a rate expressly tied to the U.S. Dollar LIBOR rate (LIBOR-Based
Debt Security); provided, however that any such securities that
were issued by any Defendant, including its subsidiaries and
affiliates, as obligor, are excluded from the definition of USD
LIBOR-Based Debt Security.
Morris and Morris LLC Counselors At Law and Weinstein Kitchenoff &
Asher LLC are designated as the Counsel for the Subsequent
Settlement Classes.
The Counsel for the Subsequent Settlement Classes are awarded
attorneys' fees in the amount of $ 489,720 and reimbursement of
expenses in the amount of $ 1,556. The foregoing amounts will be
paid to the Class Counsel from the Subsequent Settlement Funds
pursuant to the terms, conditions, and obligations of the
Settlement Agreements.
Plaintiffs Ellen Gelboim and Linda Zacher are each awarded the sum
of $2,500 as a service award directly relating to their
representation of the Bondholder Class.
Judge Buchwald approves and directs the implementation of all the
terms of the Subsequent Settlements. Without further order of the
Court, the Parties may agree to reasonable extensions of time to
carry out any of the provisions of the Settlement Agreements.
Except as to any individual claim of those Persons who have validly
and timely requested exclusion from the Subsequent Settlement
Classes, all Released Parties and Releasing Parties are bound by
the Final Judgment and Order and by the Settlement Agreements.
Judge Buchwald dismisses the Bondholder Action, as well as all of
the Released Claims, as against any of the Released Parties by the
Releasing Parties, with prejudice. The Parties are to bear their
own costs, except as otherwise provided in the Subsequent
Settlements.
All agreements made and orders entered during the course of the
Bondholder Action relating to the confidentiality of information
will survive the Subsequent Settlements and this Final Judgment and
Order and continue to be binding on the Parties, including but not
limited to the Stipulation and Protective Order entered on March
21, 2016 and the Stipulated Protective Order between Bondholder
Plaintiffs and CUSIP Global Services, entered on June 16, 2020.
A full-text copy of the Court's March 28, 2023 Final Judgment &
Order is available at https://tinyurl.com/mrz7yapf from
Leagle.com.
NEW HAMPSHIRE: Wins Partial Summary Judgment in Fitzmorris v. DHHS
------------------------------------------------------------------
In the case, Emily Fitzmorris, et al. v. New Hampshire Department
of Health and Human Services Commissioner Lori Weaver, et al., Case
No. 21-cv-25-PB (D.N.H.), Judge Paul J. Barbadoro of the U.S.
District Court for the District of New Hampshire grants the
Defendants' motion for partial summary judgment.
The Plaintiffs in this putative class action are disabled
individuals who are enrolled in New Hampshire's Choices for
Independence ("CFI") waiver program, a Medicaid program
administered by the New Hampshire Department of Health and Human
Services ("DHHS"). The CFI Waiver program provides home and
community-based care services to adults who otherwise would be
Medicaid-eligible for nursing home care.
The Plaintiffs allege that DHHS and its Commissioner have failed to
remedy defects in the administration of the program, leading to
significant gaps in their services. The Plaintiffs filed a
complaint on behalf of themselves and a putative class of similarly
situated individuals alleging, among other things, that DHHS
violates the Medicaid Act and the Fourteenth Amendment's Due
Process Clause by failing to provide them with notice and an
opportunity for a hearing when they do not receive all the services
they have been authorized to receive.
The CFI waiver program serves Medicaid-eligible adults who
clinically qualify for nursing home services but prefer to be cared
for at home or in other settings less acute than a nursing
facility. When DHHS determines that an individual is eligible for
the program, the individual is paired with a case management
agency. The case management agency works with the individual to
obtain DHHS authorization for any home or community-based care
services that the individual needs to safely reside in the
community and avoid institutionalization.
The Plaintiffs are CFI waiver participants who have been authorized
to receive an array of services, including personal care and
skilled nursing services. They complain that they suffer protracted
delays in the onset of all or part of their waiver services,
frequent interruptions in their waiver services, and/or the
expected cessation of their waiver services, allegedly due to the
state's maladministration of the CFI waiver program.
Although the Plaintiffs have asserted multiple claims, the
Defendants seek summary judgment only as to Counts VI and VII,
which allege that the Defendants' failure to provide notice and an
opportunity for a hearing where service gaps and/or delays
constitute an effective reduction, denial, or termination of
services violates both the Medicaid Act and the Due Process
Clause.
The Plaintiffs base their notice and hearing claims on both the
Medicaid Act (Count VII) and the Due Process Clause (Count VI). The
Defendants seek summary judgment on both counts.
Judge Barbadoro begins with the Medicaid Act claim. The Plaintiffs
present two arguments to support their contention that the Fair
Hearing Regulations give them a right to notice and a hearing on
their service gap claims. First, they argue that their right to
notice and a hearing has been triggered because they made "claims"
for services that defendants effectively "denied" when they failed
to close their service gaps. In the alternative, they argue that
they are entitled to notice and a hearing because the Defendants
effectively took an "action" to terminate, suspend, or reduce their
covered services when they failed to close the service gaps.
Judge Barbadoro holds that the Plaintiffs' argument cannot stand
because it assigns a meaning to the terms "denies" and "denied"
that is contrary to the way in which these terms are used in
Sections 431.206(c) and 431.220. Their interpretation is also
inconsistent with the statutory context in which the term "denied"
is used. A contextual reading of the statute and its implementing
regulations shows that a "denial" of a "claim" entails more than
mere inaction, such as the state agency's failure to close service
gaps.
Moreover, the parties have not cited to, and Judge Barbadoro has
not located, any cases that treat a failure to act as an action
within the meaning of Section 431.201. The Plaintiffs' position is
therefore unsupported by both the plain language of the Fair
Hearing Regulations and the relevant case law.
The Plaintiffs next argue that the Due Process Clause requires
notice and an opportunity for a hearing, even if the Medicaid Act
does not. Plaintiffs appear to base their claim on Goldberg v.
Kelly, which held that the Due Process Clause requires notice and
an evidentiary hearing before welfare benefits may be terminated.
In their view, because the Defendants' failure to provide all the
services they have been authorized to receive constitutes an
effective termination of those services, notice and an opportunity
for a hearing are constitutionally required.
Goldberg, however, dealt with an official termination of benefits
through agency adjudication, not the effective termination of
benefits through inaction. Nor does its reasoning extend to cases
where a claimant is unable to obtain an authorized benefit because
of the Defendants' inaction. Accordingly, Judge Barbadoro holds
that neither the holding nor the reasoning of Goldberg mandates the
procedural protections that the Plaintiffs seek.
Finally, considering the minimal value of the Plaintiffs' requested
procedures and the significant government burden in providing such
procedures, Judge Barbadoro concludes that the Due Process Clause
does not require notice or an opportunity for a hearing when the
Plaintiffs experience service gaps.
For the foregoing reasons, the Defendants' motion for partial
summary judgment is granted.
A full-text copy of the Court's March 28, 2023 Memorandum & Order
is available at https://tinyurl.com/3xrzc523 from Leagle.com.
NEWELL BRANDS: Amended Schmitt Suit Tossed for Lack of Jurisdiction
-------------------------------------------------------------------
In the case, MATTHEW SCHMITT, individually and on behalf of all
others similarly situated, Plaintiff v. NEWELL BRANDS INC. and
GRACO CHILDREN'S PRODUCTS INC., Defendants, Civil Action No.
20-16240 (ZNQ) (RLS) (D.N.J.), Judge Zahid N. Quraishi of the U.S.
District Court for the District of New Jersey grants the
Defendants' motion to dismiss the First Amended Complaint for lack
of subject-matter jurisdiction and failure to state a claim for
relief.
The Plaintiff filed the putative class action on behalf of himself
and all others similarly situated against the Defendants for
alleged violations of the New Jersey Consumer Fraud Act ("NJCFA"),
N.J. Stat. Ann. 56:8-1 et seq.; negligent misrepresentation; fraud;
and unjust enrichment.
The Defendants are a leading manufacturer of car seats for children
of all ages, including, but not limited to, infant car seats,
convertible car seats, child safety seats, and booster seats. On
Aug. 31, 2020, the Plaintiff purchased the "SlimFit(TM) Platinum
3-in-1 Car Seat," manufactured by the Defendants, from
www.gracobaby.com for $226.57.
According to the Plaintiff, the car seat's product manual orders
the consumer to "STOP using this car seat and throw it away 10
years after the date of manufacture," and further that Graco's
website explains that its "car seats can be used safely only for a
defined period of time, typically 7 to 10 years." When the car seat
arrived, however, it purportedly had a sticker affixed to the seat
that indicated it had been manufactured on March 7, 2019.
Thus, the Plaintiff alleges that the car seat he purchased was
"nearly one-and-a-half years old by the time it arrived," and that
the useful life of the car seat had depreciated by 15%. In this
regard, he asserts that he purchased the car seat intending to use
it for ten years, not only for his current child, but with hopes of
utilizing it for future children as well. According to him, had he
known that the car seat was substantially expired, he would not
have purchased the product, and therefore, the Defendants'
unconscionable commercial practices, deceptions, fraud, and
misrepresentations caused him and thousands of other consumers in
New Jersey and throughout the United States financial injury.
On Feb. 1, 2021, the Plaintiff filed an Amended Complaint,
asserting five causes of action: (1) violation of the New Jersey
Consumer Fraud Act ("NJCFA"), N.J. Stat. Ann. 56:8-1 et seq.; (2)
negligent misrepresentation; (3) fraud; (4) unjust enrichment; and
(5) "money had and received." He seeks economic damages on behalf
of himself and purchasers like him, representing the difference in
value between a new car seat with a discrete amount of useful life
(i.e., what was promised) and a car seat with a substantially
reduced life (i.e., what was received). He also seeks injunctive
relief prohibiting the Defendants from engaging in this practice
and requiring them to provide purchasers with accurate statements
regarding the car seat purchased.
Before the Court is the Defendants' motion to dismiss the First
Amended Complaint ("FAC") for lack of subject-matter jurisdiction
and failure to state a claim for relief. The Defendants contend
that the Plaintiff lacks standing in two ways: (1) that he fails to
allege an injury-in-fact, and (2) that any claim of standing based
on future potential injury also fails because such injuries are
vague and speculative. According to them, the Plaintiff has not
alleged any defect with the car seat or that it has manifested any
problems whatsoever. Rather, the Defendants claim that he has
concocted speculative, non-concrete damages that do not exist now
concerning a product that can be used until 2029. Further, they
argue that the Plaintiff lacks standing for the injunctive relief
he seeks because the Amended Complaint fails to allege with any
plausible certainty that the Plaintiff intends to purchase another
Graco car seat in the future.
Notably, the Plaintiff does not allege physical injury. Instead, he
argues an economic theory of harm and future injury. In that
regard, the Plaintiff argues that the injury alleged is
straightforward -- the car seat he purchased arrived without a
significant portion of its useful life and, had he been aware of
such a fact, he either would not have purchased the car seat
through the Defendants' website or would have paid substantially
less. According to him, this is a standard benefit-of-the-bargain
injury for overpayment, something that has long been recognized as
the type of concrete and particularized injury which confers
standing.
Judge Quraishi concludes that the Plaintiff fails to establish
standing for several reasons. First, the Plaintiff's purchase of
the car seat does not appear to have been made pursuant to a
contract, thus he could not have been denied the benefit of any
bargain. Second, regardless of any lack of contract, it is
undisputed that the Plaintiff has not alleged any defect with the
car seat, nor has he pled any facts sufficient for the Court to
conclude that he would not have purchased the product at issue but
for a specific misrepresentation made by the Defendants.
As to the defect, Judge Quraishi opines that the FAC fails to
allege sufficient facts to support his claims that the Defendants
misrepresented the car seat he purchased. With respect to the car
seat purchased by the Plaintiff, the FAC alleges merely, upon
information and belief, that a similar statement, if not the very
same statement, was found on the Graco website for the SlimFit(TM)
Platinum 3-in-1 Car Seat.
Accordingly, Judge Quraishi finds that the Plaintiff lacks standing
to seek monetary damages.
Judge Quraishi also concludes that the Plaintiff does not having
standing to seek injunctive relief. He says the Plaintiff alleges
only that he would like to be able to purchase a Graco Car Seat in
the future, but would like to be able to know what the useful life
of the product he is purchasing is. First, the Plaintiff's
allegation that he "would like to be able to" purchase another
Graco car seat in the future is precisely the type of vague,
speculative allegations of future harm that courts have routinely
rejected. Second, because his allegations reveal that he knows of
the Defendants' purported practices, the Plaintiff's request for
injunctive relief amounts to a "`'top me before I buy again' claim"
that precludes Article III standing. Accordingly, the Plaintiff
does not have standing to seek injunctive relief.
For these reasons, Judge Quraishi grants the Defendants' motion to
dismiss and dismisses the Plaintiff's FAC without prejudice based
on a lack of standing. The Plaintiff is given leave to amend his
FAC within 30 days from the date of the accompanying Order
consistent with the guidance provided in the Opinion.
A full-text copy of the Court's March 28, 2023 Opinion is available
at https://tinyurl.com/3cw5689z from Leagle.com.
PRYSMIAN CABLES: Montana, et al., Seek to Certify Employee Class
----------------------------------------------------------------
In the class action lawsuit captioned as MICHAEL MONTANA and
KENNETH HENDRIX, PLAINTIFFS Each Individually and on Behalf of All
Others Similarly Situated, v PRYSMIAN CABLES AND SYSTEMS USA, LLC,
Case No. 2:22-cv-00143-DLB-EBA (E.D. Ky.), the Plaintiffs ask the
Court to enter an order conditionally certify the following
collective:
"All Hourly Employees since November 22, 2019."
The Plaintiffs and the members of the collective are sufficiently
similarly situated that conditional certification of the proposed
collective is appropriate, the lawsuit says.
The Plaintiffs brought this suit on behalf of certain former and
current employees of Defendant Prysmian Cables and Systems USA,
LLC, to recover unpaid wages and other damages pursuant to the Fair
Labor Standards Act (FLSA).
Prysmian manufactures telecommunication equipment.
A copy of the Plaintiff's motion dated March 20, 2023 is available
from PacerMonitor.com at https://bit.ly/3zmuvHp at no extra
charge.[CC]
The Plaintiffs are represented by:
Michele Henry, Esq.
CRAIG HENRY PLC
401 West Main Street, Suite 1900
Louisville, KY 40202
Telephone: (502) 614-5962
E-mail: mhenry@craighenrylaw.com
- and -
Krista Sheets, Esq.
SANFORD LAW FIRM, PLLC
Kirkpatrick Plaza
10800 Financial Centre Pkwy, Suite 510
Little Rock, AR. 72211
Telephone: (501) 221-0088
Facsimile: (888) 787-2040
E-mail: krista@sanfordlawfirm.com
QUALCOMM INC: Court Partly Grants Shah Class Status Bid
-------------------------------------------------------
In the class action lawsuit captioned as Shah v. Qualcomm
Incorporated et al., Case No. 3:17-cv-00121-JO-MSB (S.D. Cal.),
Hon. Judge Jinsook Ohta entered an order granting in part and
denying in part plaintiffs' motion for class certification:
-- The Plaintiffs' motion is denied to the extent Plaintiffs seek
to
certify their claims regarding Defendants’ alleged licensing
misrepresentations.
-- With respect to Plaintiffs’ remaining claims regarding the
Defendants' alleged bundling misrepresentations, the Court
certifies a class of investors defined as follows:
"All persons or entities who purchased or otherwise acquired
the
common stock of Qualcomm between February 1, 2012 and January
20,
2017, inclusive, and who were damaged thereby."
Excluded from the Class are Defendants, the officers and
directors of Qualcomm at all relevant times, members of their
immediate families and their legal representatives, heirs,
agents, affiliates, successors or assigns, the Defendants'
liability insurance carriers, and any affiliates or
subsidiaries
thereof, and any entity in which Defendants or their immediate
families have or had a controlling interest.
-- The Court appoints Lead Plaintiffs as class representatives
and
Bernstein Litowitz Berger & Grossmann LLP and Motley Rice LLC
as
class counsel.
The putative class includes thousands of investors who purchased
Qualcomm's stock between February 1, 2012, and January 20, 2017.
The claim for all investors is the same; that each purchased
Qualcomm stock at artificially inflated prices which were caused by
the Defendants' same alleged misrepresentations.
Because the elements of the class's claims -- whether the
Defendants' statements were false and material, whether the class
relied on an efficient market, and whether the class suffered
damages––are class-wide questions susceptible to common proof,
the Court concludes that trying the claims as a class will be more
efficient and cost-effective than trying the claims on an
individual basis.
Accordingly, the Court finds that a class action is the superior
method of resolving the controversy regarding the alleged bundling
practices Plaintiffs Sjunde AP-Fonden and Metzler Asset Management
GMbH filed a class action alleging violations of federal securities
laws against Defendants Qualcomm and several of its executives,
Derek K. Aberle, Steven R. Altman, Donald J. Rosenberg, William F.
Davidson, Jr., Paul E. Jacobs, and Steven Mollenkopf.
On May 16, 2022, the Plaintiffs filed a motion to certify the class
pursuant to Federal Rule of Civil Procedure 23.
Qualcomm is a leading technology company that owns patents for
components inside of cell phones, handsets, and other devices.
Qualcomm does not manufacture the end-product –– e.g., cell
phones and handsets –– but, rather, it patents and sells the
components, such as chips, to the companies that make the
end-products.
A copy of the Court's order dated March 20, 2023 is available from
PacerMonitor.com at https://bit.ly/3Zvozqo at no extra charge.[CC]
REFUAH HEALTH: Court Denies Bids to Remand Krandle & Esposito Suits
-------------------------------------------------------------------
In the cases, REBECCA KRANDLE, individually, and on behalf of all
others similarly situated, Plaintiff v. REFUAH HEALTH CENTER, INC.,
Defendant. DAWN ESPOSITO, and PAOLA CORTAZAR, individually, and on
behalf of all others similarly situated, Plaintiffs v. REFUAH
HEALTH CENTER, INC, Defendant, Case Nos. 22-CV-4977 (KMK),
22-CV-5039 (KMK) (S.D.N.Y.), Judge Kenneth M. Karas of the U.S.
District Court for the Southern District of New York grants in part
and denies in part Krandle's and Esposito's Motions to Remand.
Plaintiffs Rebecca Krandle, Dawn Esposito, and Paola Cortazar bring
two Actions individually and on behalf of all others similarly
situated against Refuah Health Center ("RHC") alleging various tort
claims arising out of a data breach of RHC's network systems.
Before the Court are two Motions to Remand pursuant to 28 U.S.C.
Section 1447(c).
RHC is a not-for-profit healthcare company with its principal place
of business in Spring Valley, New York. As a full-service,
integrated, multi-specialty healthcare organization with four
service sites and a fleet of mobile units, RHC collects and
maintains the personally identifying information ("PII") and
personal health information ("PHI") of patients in regular course
of providing patient care.
Sensitive information includes names, Social Security numbers,
driver's license numbers, state identification numbers, dates of
birth, bank/financial account information, credit/debit card
information, medical treatment/diagnosis information,
Medicare/Medicaid numbers, medical record numbers, patient account
numbers, and/or health insurance policy numbers. RHC provides each
patient with a "Notice of Privacy Practices," which states limited
circumstances where RHC will disclose sensitive information,
including, e.g., for purposes of providing treatment, billing,
medical research, and responding to government requests.
According to a notice posted on the Defendant's website on April
29, 2022, hackers breached RHC's network systems between May 31,
2021 and June 1, 2021. After completing its investigation on March
2, 2022, RHC reported that individuals accessed and acquired
certain files on RHC's computer systems, including extracting
sensitive information.
Krandle, as a "former employee and patient of RHC," received a
letter from RHC indicating that her sensitive information was
exposed in the breach. Esposito received a letter from RHC
informing her that her sensitive information may have been
compromised. Esposito also alleges that she has received increased
spam and phishing attempts since the data breach and must install a
spam filter to address an uptick in spam calls and texts. Cortazar
received a letter from RHC informing her that her sensitive
information may have been compromised. She also alleges that she
has experienced several hundred dollars' worth of suspicious
charges to her credit card, requiring her to replace her credit
card.
On May 17, 2022, Krandle filed her initial class action lawsuit in
New York state court requesting monetary damages and injunctive
relief based on claims for: 1) negligence; 2) negligence per se; 3)
breach of fiduciary duty; (4) breach of express contract; 5) breach
of implied contract; 6) unjust enrichment; and 7) violations of
N.Y. Gen. Bus. Law Section 349.
On June 14, 2022, RHC removed the case to federal court, pursuant
to 42 U.S.C. Section 233(l)(2) and 28 U.S.C. Section 1442. The
Plaintiff subsequently filed the instant Motion to Remand and
ancillary papers on July 29, 2022. After several extensions of
time, the Government filed a Statement of Interest.
On June 10, 2022, Esposito and Cortazar filed their initial class
action lawsuit in New York state court requesting monetary damages
and injunctive relief based on claims for: 1) negligence; 2) breach
of express contract; 3) breach of implied contract; 4) violations
of N.Y. Gen. Bus. Law Section 899-AA and Section 34; and 5)
invasion of privacy by intrusion.
On June 16, 2022, RHC removed the case to federal court, pursuant
to 42 U.S.C. Section 233(l)(2) and 28 U.S.C. Section 1442. After
several extensions of time, the Government filed a Statement of
Interest.
In nearly identical memoranda of law, the Plaintiffs argue that the
Defendant's removals to federal court are procedurally improper
under both 42 U.S.C. Section 233(l) and 28 U.S.C. Section 1442.
First, they argue that the Defendant failed to meet the procedural
requirements of Section 233(l) by removing the cases prior to the
statutorily proscribed 15-day window. They also argue that the
Defendant cannot remove the instant Actions to federal court under
Section 1442, because Section 233(l)(2) exclusively governs removal
by entities or individuals covered by the Federally Supported
Health Centers Assistance Act ("FSHCAA"). Finally, the Plaintiffs
argue that Section 233(a) is substantively "inapplicable to
Plaintiff's claims," precluding removal under Section 233(l)(2).
Judge Karas examines the removal under Section 233(l). He opines
that RHC improperly removed the Krandle Action to federal court
under Section 233. To determine whether removal was procedurally
proper, it is incumbent upon this Court to calculate the initial
notice date to the Attorney General. The Attorney General likely
received notice on two of them: June 3, 2022 and June 9, 2022.
Charitably assuming that notification to the Attorney General on
June 3, 2022 was sufficient, RHC prematurely removed the case by
four days, in contravention of the FSCHAA.
Similarly, RHC prematurely removed the Esposito case to federal
court in contravention of the FSHCAA. RHC provided HHS OGC with
copies of the Esposito summons and complaints on June 15, 2022. On
the same day, RHC provided notice to the USAO with a copy of the
Esposito summons and complaint. Just one day later, on June 16,
2022, RHC removed the Esposito case to federal court. Given these
facts, RHC clearly did not wait for the 15-day removal as required
by the statute. Accordingly, RHC also improperly removed the
Esposito Action under Section 233.
Judge Karas then examines the removal under Section 1442(a)(1).
Regarding the merits of the Section 1442 analysis, the Plaintiffs
argue that (1) RHC cannot be considered a deemed employee of the
Public Health Service for the purposes of Section 1442 because of
the specific statutory grant in Section 233; and (2) that RHC is
not considered a person "acting under" a federal officer because
RHC complies with "certain federal conditions to remain eligible
for federal grants." RHC disagrees, arguing that (1) RHC and its
employees were acting under a federal officer under Section
1442(a)(1); and in the alternative, (2) RHC's employees are federal
officers themselves under Section 1442.
Judge Karas focuses his analysis on the "acting under" federal law
ambit of the Section 1442 analysis. He finds that the Plaintiffs
fail to acknowledge the statutory requirement imposed on RHC as a
condition to continue receiving grant funds that seemingly governs
the protection of patient data at issue. Thus, to carry out the
duties of the federal government to provide medical care to the
indigent, RHC must keep patient records safe as required by federal
statute, arguably qualifying RHC's actions as "acting under" color
of federal regulations.
Moreover, while applying data breaches to the regulations of
Section 233 appears to be one of first impression in the Second
Circuit, three recent district court opinions analyze nearly
identical facts. Each held that the failure to maintain the
confidential nature of patient records constituted a "medical or
related function" under the FHSCAA. Although RHC's failure to
maintain and protect the confidential information from unauthorized
access was not done in the actual rendering of medical treatment,
it is a related function because maintaining confidential personal
and health information is necessary to effectively treat patients.
Judge Karas concludes that RHC appropriately removed both Actions
under Section 1442. Accordingly, the Plaintiffs' Motions for Remand
on the basis of Section 1442 is denied.
For the reasons Judge Karas stated, Krandle's Motion is granted in
part and denied in part, and Esposito's Motion is granted in part
and denied in part.
The Clerk of Court is directed to terminate the pending Motions,
(Dkt. No. 19, Case No. 22-CV-2877; Dkt. Nos. 10, 11, Case No.
22-CV-5039). The Court will hold a status conference for both cases
on April 14, 2023, at 10:30 a.m.
A full-text copy of the Court's March 28, 2023 Opinion & Order is
available at https://tinyurl.com/urcnrscy from Leagle.com.
Michael M. Liskow, Esq. -- mliskow@calcaterrapollack.com --
Calcaterra Pollack LLP, New York, NY, Counsel for Plaintiff Rebecca
Krandle.
Anthony Parkhill, Esq. -- b.barnow@barnowlaw.com -- Barnow and
Associates, P.C., Chicago, IL, Counsel for Plaintiff Rebecca
Krandle.
Todd S. Garber, Esq., Andrew C. White, Esq. -- awhite@fbfglaw.com
-- Finkelstein, Blankinship, Frei-Pearson & Garber, LLP, White
Plains, NY, Counsel for Plaintiffs Dawn Esposito and Paolo
Cortazar.
Matthew S. Freedus, Esq. -- mfreedus@ftlf.com -- Feldesman Tucker
Leifer Fidell LLP, Washington, DC, Counsel for the Defendant.
James P. Flynn, Esq. -- jflynn@ebglaw.com -- Epstein Becker &
Green, Newark, NJ, Counsel for the Defendant.
RICE DRILLING: Bid for Class Certification in Passmore Suit Denied
------------------------------------------------------------------
In the case, J&R PASSMORE, LLC, et al., Plaintiffs v. RICE DRILLING
D, LLC, et al., Defendants, Case No. 2:18-cv-01587 (S.D. Ohio),
Judge Algenon L. Marbley of the U.S. District Court for the
Southern District of Ohio, Eastern Division:
a. denies the Plaintiffs' Motion for Class Certification
pursuant to Federal Rules of Civil Procedure 23(a) and
23(b)(3),
b. denies the Plaintiffs' Motion to Strike John McBeath;
c. denies the Plaintiffs' Motions to Strike the Declarations
of Lucas Herren and Matt Reser; and
d. denies as moot the Plaintiffs' Plaintiffs' duplicative
Motion to Strike the Declaration of Matt Reser.
Named Plaintiffs J&R Passmore, LLC; Bruce and Jennifer Schuster;
Brent and Doreen Butler; and Ryan and Cheryl Feiock own various
pieces of property in Belmont County, Ohio, as well as the oil and
gas rights to these properties Defendant Rice entered into leases
with the Plaintiffs for the development of oil and gas minerals on
their properties.
Rice and Defendant Gulfport Energy Corp. entered into an agreement
whereby they agreed to drill wells in Belmont County. Pursuant to
this agreement, each drilled wells on Passmore's property, while
Rice drilled additional wells on the Schusters', Butlers', and
Feiocks' properties. Rice and Gulfport Energy shared in the revenue
produced from the sale of oil, gas, and other hydrocarbons from the
wells on each of these properties. Rice also assigned certain
interests it had in its lease with Passmore and in certain leases
with other putative class members to Defendant Gulfport Appalachia,
LLC.
XTO Energy Inc. and Ascent Resources-Utica, LLC entered into an
agreement to facilitate the funding, exploration, and development
of their jointly owned interests. They also have agreements with
Rice to allow XTO and Ascent to drill wells on the Passmore and
Schuster properties. Pursuant to these agreements, XTO drilled
wells on the Passmore and Schuster properties. XTO and Ascent share
in the revenue produced from the sale of oil, gas, and other
hydrocarbons produced from the wells on these properties.
Additionally, XTO has acquired interests in four leases containing
the contract language at issue in this matter.
The Plaintiffs allege that the Defendants have infringed on their
mineral rights by drilling outside of the terms of the Rice leases.
They allege that the leases limit the Defendants to drilling in the
Marcellus Shale and Utica Shale rock formations and reserves to the
lessors the rights to all products contained in all formations
below the base of the Utica Shale. Despite this "clear
reservation," however, the Plaintiffs argue that the Defendants
have unlawfully drilled every well below the base of the Utica
Shale into and are producing oil and gas from the Point Pleasant
Formation, which is reserved to the putative class.
While the parties and their respective experts agree that the
Marcellus Shale, Utica Shale, and Point Pleasant Formation are
separate geological formations, they disagree on the interpretation
of the contract language within the leases held by the putative
class. Specifically, the Defendants allege that at the time of the
contract negotiations, the Point Pleasant Formation was understood
to be part of the Utica Shale, and therefore, the language in the
leases still allows them to drill into the Point Pleasant
Formation.
The Plaintiffs, on behalf of themselves and other similarly
situated owners of oil and gas mineral rights located in Belmont
County, Ohio, seek: (1) a declaratory judgment that their leases
(the subject "Class Lease") specifically and unambiguously reserve
all oil and gas mineral rights and estates below the base of the
Utica Shale formation to the lessees; and (2) damages for bad faith
trespass, conversion, and unjust enrichment from the Defendants for
knowingly drilling and producing oil and gas from the Point
Pleasant Formation.
The Named Plaintiffs filed the action on Dec. 6, 2018. On Feb. 28,
2019, the Plaintiffs filed an amended Complaint. The Defendants
then filed a series of Motions to Dismiss. On Nov. 15, 2019, the
Court took the following action: (1) denied Rice's Motion to
Dismiss; (2) granted Ascent and XTO's Motions to Dismiss as to the
Butlers and Feiocks; (3) denied Ascent and XTO's Motions to Dismiss
as to Passmore and the Schusters; (4) and dismissed the Butlers'
and Feiocks' claims against Ascent and XTO.
In July 2021, the Plaintiffs filed and were granted an unopposed
Motion to add Gulfport Appalachia, LLC as a defendant because
Gulfport Appalachia was assigned some of Rice's interests in the
leases and in light of Gulfport Energy's recent bankruptcy
proceedings. The Court granted their motion the following day.
On Dec. 1, 2021, the Plaintiffs filed a Motion for Class
Certification pursuant to Fed. R. Civ. P. 23(a) and 23(b)(3),
seeking certification of the following class: All persons or
entities who own oil and natural gas mineral interests in Belmont
County, Ohio that entered into or who are parties or beneficiaries
of oil and gas leases entered into with one or more of the
Defendants named herein; in which leases the Lessor retained all
rights to the formations and the hydrocarbon products contained in
the formations below the base of the Utica Shale formation; where
one or more of Defendants Rice, Gulfport, XTO, and Ascent have
drilled and fractured their well(s) below the base of the Utica
Shale formation; and where one or more of Defendants Rice,
Gulfport, XTO, and Ascent are producing oil, natural gas, or other
hydrocarbons from formations below the base of the Utica Shale
formation without agreement from the Lessor.
The Plaintiffs allege that the matter involves more than 1,230
putative class members that entered into (or are
successors-in-interest to) about 750 pooled oil and gas "class
leases" with the Defendants that contain the identical Grant and
Reservation Clauses. They assert that these leases represent 31,492
acres of land in 224 pooled units owned by putative class members
wherein the Defendants have drilled at least 365 wells into, and
are producing oil and gas from, the Point Pleasant Formation (or
below). Therefore, the 750 pooled leases at issue meet the proposed
class definition.
Under Ohio law, landowners can pool together adjoining properties
to form a single drilling unit, and all production of oil, gas, or
minerals from anywhere in the pooled drilling unit is considered to
have been produced from the unit as a whole no matter where the
actual well was drilled. Upon forming a pooled unit, the Defendants
allocate revenue from the sale of oil and gas and pay royalties
from any well drilled in that pooled unit based on a surface
acreage allocation to the size of the pooled unit.
Because the Defendants' liability to the putative class turns on a
common contract interpretation question of whether they were
limited to drilling in the Utica and Marcellus Shale and not the
Point Pleasant Formation below, the Plaintiffs maintain that the
class action mechanism is most appropriate.
In February 2022, the Plaintiffs filed three Motions to Strike
expert testimony and declarations filed by the Defendants to
support their opposition to class certification. The parties have
submitted timely responses and replies to the Motion for Class
Certification and the Motions to Strike. The Court held Oral
Argument on the Plaintiffs' Motion for Class Certification.
First, Judge Marbley denies all three of the Plaintiffs' Motions to
Strike as they relate to the class certification stage of the
litigation. He does not rule on the merits of these reports and
declarations as that should be assessed at a later stage of the
litigation, if appropriate.
McBeath's expert opinion assesses whether the facts surrounding the
leasing of at-issue properties and production of oil and gas
therefrom could assess the "claims and damages asserted by all
putative class members.
Judge Marbley says McBeath's expert report is reliable because it
is based on his years of experiences, knowledge about petroleum
production, and review of other, similar leases and contracts that
deal with oil and gas production. Additionally, his summary of the
individual inquiries that must be conducted to understand the
Defendants' liability are relevant to determining the commonality
and predominance prongs of Federal Rules of Civil Procedure 23.
McBeath's report does contains legal conclusions that are not
within his area of expertise to make, and it is the job of this
Court, not an expert witness, to make those conclusions.
Mr. Herren and Mr. Reser are corporate representatives of
Defendants XTO and Ascent. Their Declarations include information
about each representative's background, the Defendants'
relationship with the named Plaintiffs, and the leases they contain
with the disputed Reservation Clause.
Judge Marbley opines that the joint stipulations entered into by
the parties are generic, and do not include the level of
specificity claimed by Plaintiffs. The facts outlined in the
declarations simply do not conflict with the Stipulations, and
Plaintiffs fail to connect the dots between the alleged conflicts
and their claimed conclusions. Additionally, the Defendants
demonstrate through their exhibits that the information included in
their declarations were provided to the Plaintiffs in discovery or
was accessible through public information. Hence, the Plaintiffs'
Motions to Strike the Declarations are denied.
Turning to the motion for class certification, Judge Marbley finds
that (i) commonality prong is met because the resolution of the
question of whether the Defendants exceeded the scope of the leases
by drilling into the Point Pleasant Formation will advance the
litigation by either establishing that the Defendants could be held
liable or relieving them of their alleged liability; (ii) Class
Counsel Craig Wilson, John McCuskey, Brian Warner, and J. Robert
Russell will vigorously prosecute the matter; and (iii) adequacy
prong of Rule 23(a) is met with respect to Schusters, Feiocks, and
Butlers, but not with respect to Passmore as a class representative
for claims against XTO.
Despite the Plaintiffs success on the Rule 23(a) factors, Judge
Marbley finds that the Plaintiff's claims fail to meet the Rule
23(b)(3) factors required to certify the class. The Defendants'
liability ultimately turns on questions of common law, and while
central to step one of the legal analyses, the contract
interpretation question cannot be said to predominate over the
individualized inquiries required to resolve the actual, alleged
injury to the Plaintiffs. Therefore, the predominance requirement
of Rule 23(b)(3) is not met, and the class cannot be certified
under its current structure.
Next, viewing the totality of the circumstances, the balance of
factors weighs against a class action as the superior vehicle
through which to resolve the claims raised. While the Plaintiffs
have identified over 1,200 potential class members who could be
members of this class, a number of those same potential plaintiffs
have brought suit separately and have a strong interest in
controlling and maintaining separate actions. Accordingly, Judge
Marbley does not find the superiority requirement satisfied.
Judge Marbley further finds that the Defendants clearly can
ascertain from which leases they drill from the Point Pleasant
Formation, and a review of these leases will demonstrate whether
the leases contain the at-issue Reservation Clause. If
ascertainability factor was the only issue with the Plaintiffs'
pleadings, Judge Marbley would typically provide the Plaintiffs the
opportunity to amend their proposed class definition. Because this
class definition fails for other reasons, however, amendment is
unnecessary. The Plaintiffs' Motion for Class Certification is
denied.
Finally, the Defendants argue that the Plaintiffs waived their
right to certify their declaratory judgment claim by failing to
move under Rule 23(b)(2), the necessary vehicle for certifying
declaratory relief claims. The Plaintiffs respond that because they
seek damages flowing from the anticipated ruling on the declaratory
judgment claim, Plaintiffs are entitled to certification pursuant
to Rule 23(b)(3).
Judge Marbley opines that the damages sought by the Plaintiffs are
not incidental to the declaratory relief sought. Even if a jury
concludes that the Defendants did not have authority to drill into
the Point Pleasant Formation, damages may not necessarily result
for all members of the class as the claims for trespass,
conversion, and unjust enrichment require analysis of both the
Defendants' actions and the Plaintiffs' possessory interest in the
property. Therefore, had the Plaintiffs met the Rule 23(b)(3)
factors, certifying the class under Rule 23(b)(3) alone would have
been the most efficient route, while ensuring a rigorous inquiry
and due process protections for the putative class. The Plaintiffs
did not err in their pleadings and did not waive their right to
seek declaratory relief.
For the reasons he stated, Judge Marbley rules as follows: (1) the
Plaintiffs' Motion for Class Certification is denied; (2) the
Plaintiffs' Motion to Strike John McBeath is denied; (3) the
Plaintiffs' Motions to Strike the Declarations of Lucas Herren and
Matt Reser are denied; (4) the Plaintiffs' duplicative Motion to
Strike the Declaration of Matt Reser is denied as moot.
A full-text copy of the Court's March 28, 2023 Opinion & Order is
available at https://tinyurl.com/29tks5tn from Leagle.com.
SECURITY BENEFIT: 10th Cir. Flips Dismissal of Clinton RICO Suit
----------------------------------------------------------------
In the case, ELLA CLINTON; WILLIAM CARRICK; TERRI L.
STAUFFER-SCHMIDT; JEAN P. WRIGHT; MICHAEL A. WEBBER; DONALD P. COX;
HOWARD ROSEN; WAI HEE YUEN; MARTHA MILLER COX,
Plaintiffs-Appellants v. SECURITY BENEFIT LIFE INSURANCE COMPANY,
Defendant-Appellee, Case No. 21-3035 (10th Cir.), the U.S. Court of
Appeals for the Tenth Circuit reverses the district court's order
granting Security Benefit's motion to dismiss under Federal Rule of
Civil Procedure 12(b)(6).
The Plaintiffs are consumers who sued the Defendant under the
Racketeer Influenced and Corrupt Organizations Act ("RICO"), 18
U.S.C. Section 1962, and state law, alleging Security Benefit
developed a fraudulent scheme to design and market certain annuity
products. This appeal requires the Tenth Circuit to determine
whether the district court properly dismissed the Plaintiffs' first
amended complaint without prejudice for lack of particularity and
plausibility in pleading fraud.
The case involves equity-indexed deferred annuities, a type of
insurance product marketed and sold to Plaintiffs by Security
Benefit. Shortly after being acquired by a private equity firm in
2010, Security Benefit developed and marketed equity-indexed
deferred annuity products. It sold two annuities: the "Secure
Income Annuity" and the "Total Value Annuity." Investors paid fees
and charges associated with the annuity products. The Plaintiffs
allege these annuity products share several features relevant to
their fraud claims.
In November 2019, Clinton sued Security Benefit on behalf of
herself and others similarly situated in federal district court in
the Southern District of Florida. He alleged Security Benefit
devised a fraudulent scheme to develop and sell equity-indexed
deferred annuities that it knew would produce near-zero returns for
consumers and relied on allegedly deceptive marketing practices to
induce consumers to purchase these annuity products.
The company linked the annuities' performance to recently created,
synthetic proprietary indices instead of to traditional markets
like the Standard & Poor's 500. To fraudulently induce consumers'
purchase of the annuity products, Security Benefit used marketing
materials and the Statements of Understanding that contained
misrepresentations and omissions about how the proprietary indices
operated and were expected to perform. Security Benefit's alleged
conduct, Plaintiff Clinton claimed, violated RICO, 18 U.S.C.
Section 1962(c) and (d).
Clinton alleged the annuity products' costs, fees, and "performance
dampening features" operated collectively to offset the proprietary
indices' returns, and that Security Benefit did not disclose the
"collective impact" of these features on consumers' investments.
In January 2020, the Plaintiffs amended their complaint to add
additional plaintiffs and claims under RICO, 18 U.S.C. Section
1962(c) and (d), along with consumer protection, unfair
competition, and common law fraud claims under California,
Illinois, Arizona, and Nevada state law.
Security Benefit moved to dismiss, contending the complaint failed
to plead plausible fraud claims with particularity. The action was
then transferred to the District of Kansas under 28 U.S.C. Section
1404. In February 2021, the district court dismissed the complaint
without prejudice. This timely appeal followed.
The district court dismissed the Plaintiffs' complaint on two
grounds. First, the Tenth Circuit considers the district court's
conclusion that the complaint did not satisfy Federal Rule of Civil
Procedure 9(b)'s particularity standard. It next considers the
district court's conclusion that the Plaintiffs' claims were
implausible under Federal Rule of Civil Procedure 12(b)(6).
The Tenth Circuit agrees with the Plaintiffs that the district
court committed reversible error.
First, it concludes that the district court erred in dismissing the
complaint for failing to satisfy Rule 9(b)'s particularity
standard. It finds that even where "not all of the Plaintiffs'
allegations" are pleaded with particularity, a complaint may
nonetheless satisfy Rule 9(b)'s requirements when its allegations
are sufficiently particularized when "taken as a whole." So, in the
present case. Reviewing de novo, and reading the complaint in its
entirety, the Tenth Circuit concludes the Plaintiffs have satisfied
Rule 9(b)'s requirements, and the district court erred in
concluding otherwise.
Second, it concludes that the district court also erred in
dismissing the complaint for failing to allege facially plausible
claims for relief. It opines that the district court failed to
consider the complaint as a whole and its analysis of the four
misrepresentations and omissions in isolation reveals it did not
fully account for Security Benefit's misrepresentations about the
discrete features of the annuity products that, together, operated
to reduce the proprietary indices' performance.
In sum, the Tenth Circuit concludes that the Plaintiffs have
alleged facially plausible fraud claims with the particularity
required under Federal Rule of Civil Procedure 9(b). Therefore, the
district court erred in granting Security Benefit's motion to
dismiss under Federal Rule of Civil Procedure 12(b)(6). Exercising
jurisdiction under 28 U.S.C. Section 1291, the Tenth Circuit
reverses and remands for further proceedings.
A full-text copy of the Court's March 28, 2023 Opinion is available
at https://tinyurl.com/mr24kj6c from Leagle.com.
Andrew S. Friedman -- afriedman@bffb.com -- of Bonnett Fairbourn
Friedman & Balint PC (Francis J. Balint, Jr. -- fbalint@bffb.com --
of Bonnett Fairbourn Friedman & Balint PC, Phoenix, Arizona; Adam
M. Moskowitz -- adam@moskowitz-law.com -- and Howard H. Bushman --
howard@moskowitz-law.com -- of The Moskowitz Law Firm, PLLC, Coral
Gables, Florida; and Eric D. Barton of Wagstaff & Cartmell, LLP,
Kansas City, Missouri, with him on the briefs), for the
Plaintiffs-Appellants.
Robert D. Phillips, Jr. -- bo.phillips@alston.com -- of Alston &
Bird LLP (Samuel J. Park -- samuel.park@alston.com -- and Gillian
H. Clow of Alston & Bird LLP, Los Angeles, California; Michael A.
Valerio of Alston & Bird LLP, Washington, District of Columbia; and
James D. Oliver, Anthony F. Rupp, and Holly Dyer of Foulston
Siefkin LLP, Overland Park, Kansas, with him on the brief), for the
Defendant-Appellee.
STATE FARM: Unpaid PIP Benefits Claim Dismissed in Pedroso Suit
---------------------------------------------------------------
In the class action lawsuit captioned as CLARA ARREBATO PEDROSO AND
KATHERINE HERNANDEZ ARREBATO, Individually and as Class
Representatives, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE
COMPANY, Case No. 3:21-cv-00540-CHB (W.D. Ky.), Hon. Judge Claria
Horn Boom entered an order as follows:
1. The Plaintiffs' motion to certify Questions of Law to the
Supreme Court of Kentucky is denied.
2. The Plaintiffs' motion to Hold Defendant State Farm's Motion
to
dismiss in abeyance Pending a Ruling From This Court on
Plaintiffs' Motion to Certify Questions of Law, is denied as
moot.
3. The Plaintiffs' motion for oral argument is denied.
4. The Defendant's motion to dismiss is granted. The
Plaintiffs'
claim for statutory interest and fees on alleged unpaid PIP
benefits is dismissed pursuant to Federal Rule of Civil
Procedure 12(b)(6) and collateral estoppel.
The Court finds that Plaintiffs lack standing to assert their
claims for declaratory judgment; for injunctive relief; for
unusable benefits arising under the MVRA; and for eighteen percent
interest and attorneys’ fees on those unusable benefits. Further,
even if Plaintiffs had standing, these claims, as alleged, cannot
survive Rule 12(b)(6) scrutiny or would otherwise be barred by res
judicata. Lastly, to the extent Plaintiffs attempt to allege a
claim for eighteen percent interest and attorneys' fees on their
unpaid benefits, that claim is barred by the doctrine of collateral
estoppel and must be dismissed.
Here, the Court has dismissed Plaintiffs' Amended Complaint to the
extent it seeks to allege a claim for eighteen percent interest and
fees on the unpaid benefits. The remaining claims are as follows:
(1) a claim for declaratory relief; (2) a claim for injunctive
relief; (3) a claim alleging a violation of the MVRA and seeking
monetary damages in the form of the alleged "unusable benefits";
and (4) a claim for "18% statutory interest on the balance of the
unused benefits, and attorney fees."
A copy of the Court's order dated March 21, 2023 is available from
PacerMonitor.com at https://bit.ly/3nvTwNK at no extra charge.[CC]
SWICKARD SF CORPORATION: Galpin Files Suit in Cal. Super. Ct.
-------------------------------------------------------------
A class action lawsuit has been filed against Swickard SF
Corporation, et al. The case is styled as Nicholas Galpin,
individually, and on behalf of all others similarly situated v.
Swickard SF Corporation, Swickard Auto Group, Swickard Fremont
Corporation, Swickard Management Company, Swickard Redwood City
Corporation, Case No. 23CV030354 (Cal. Super. Ct., Alameda Cty.,
March 30, 2023).
The case type is stated as "Other Employment Complaint Case."
Swickard SF Corporation -- https://www.swickard.com/ -- are fueled
by their goal to be #1 in sales and service, while delivering
personalized customer service.[BN]
The Plaintiff is represented by:
Justin F. Marquez, Esq.
WILSHIRE LAW FIRM, PLC
3055 Wilshire Blvd., Ste. 510
Los Angeles, CA 90010-1145
Phone: 213-381-9988
Fax: 213-381-9989
Email: justin@wilshirelawfirm.com
T. MARZETTI: Court Denies Bid to Dismiss 1st Amended Simeone Suit
-----------------------------------------------------------------
In the case, CYNTHIA SIMEONE, TAKISHA JONES, and PHYLLIS CHARNEY,
individually and on behalf of all others similarly situated,
Plaintiffs v. T. MARZETTI COMPANY, Defendant, Case No. 21-CV-9111
(KMK) (S.D.N.Y.), Judge Kenneth M. Karas of the U.S. District Court
for the Southern District of New York denies the Defendant's Motion
to Dismiss the First Amended Complaint.
The Plaintiffs bring the putative class action against the
Defendant, alleging that the labeling on its Ultimate Garlic, Real
Garlic, Five Cheese, and Real Parmesan Texas Toast products is
deceptive and misleading. The Plaintiffs bring claims for damages
against Defendant for violation of Sections 349 and 350 of the New
York General Business Law ("GBL"), N.Y. Gen. Bus. L. Sections 349,
350.
The Defendant is a corporation headquartered in Westerville, OH.
Among other foods, the Defendant sells the Products, which are a
brand of frozen bread slices covered with flavored spread. The
Products are all packaged in rectangular cardboard boxes that are
labeled and advertised as containing 'No Preservatives.' All of the
Products include citric acid in the flavored spread covering the
bread.
The Plaintiffs allege that FDA regulations classify citric acid as
a preservative and that the FDA has stated in a published warning
letter that where citric acid functions as a preservative it should
be labelled as such. They also allege that citric acid may serve as
a preservative in frozen foods like the Products, relying on the
fact that some competitors to the Products that also include citric
acid as an ingredient do not have a "No Preservatives" label. The
Plaintiffs allege that citric acid is a preservative in the
Products because it serves to "stabilize the active ingredients."
The Plaintiffs allege that the "No Preservatives" label used on the
Products is deceptive because the Defendant knows that consumers
are willing to pay more for foods that are labeled as containing No
Preservatives because they perceive it to be a healthier
alternative to similar products without the No Preservatives label
and advertises the Products with the intention that consumers rely
on.
The Plaintiffs filed their Complaint on Nov. 3, 2021. On Jan. 10,
2022, the Defendant filed a letter-motion requesting to file a
motion to dismiss. The Plaintiffs responded to the Defendant's
letter motion on Feb. 8, 2022 and informed the Court that they
would be filing an amended complaint to address the deficiencies
identified by the Defendant.
The Plaintiffs filed their Amended Complaint on Feb. 23, 2022. On
March 4, 2022, the Defendant filed a letter requesting to submit a
motion to dismiss, to which the Plaintiffs responded on March 11,
2022. After a conference held on April 7, 2022, the Court issued an
order setting a briefing schedule for the Defendant's Motion To
Dismiss.
The Defendant filed its Motion To Dismiss and accompanying papers
on May 9, 2022. On June 17, 2022, the Plaintiffs filed their
Opposition and accompanying papers.
As a threshold matter, Judge Karas must determine the proper
treatment of documents that both parties have requested the Court
considers in deciding the Motion, either on the grounds that the
documents are integral to the FAC or that the documents are public
records which are proper subjects of judicial notice.
The Plaintiffs request that the Court takes judicial notice of
several rulings and orders from Daniel Prescod v. Celsius Holdings,
Inc., No. 19-STCV-9231 (Los Angeles Sup. Ct.). Judge Karas takes
judicial notice of these documents as courts in the Second Circuit
regularly take judicial notice of decisions and orders issued by
other courts.
The Defendant requests that the Court takes judicial notice of two
documents posted on the FDA's public website -- (1) an FDA food
additive status list and (2) an FDA warning letter -- as public
records. Judge Karas takes judicial notice of these documents, as
courts in the Second Circuit routinely take judicial notice of FDA
documents posted on public websites.
The Defendant also requests that the Court takes notice of fourteen
other exhibits that are integral to the FAC because the Plaintiffs
cite directly to them and either quote from or rely upon their
terms and conclusions in framing their allegations. Judge Karas
agrees, as it is evident that the Plaintiffs have directly relied
on these documents to frame their allegations as to the functions
of citric acid and as to consumer sentiment about preservatives in
food.
Judge Karas then turns to the Motion. The Defendant argues that the
Plaintiffs fail to state a plausible claim under the GBL because
they have not adequately alleged that: (1) the Defendant engaged in
conduct that is materially misleading; (2) the Plaintiffs suffered
an injury due to the Defendant's use of the words "No
Preservatives" on the Products' packaging; or (3) the Plaintiffs
suffered an injury under a "price premium" theory. Finally, the
Defendant argues, in the alternative, that the Plaintiffs' GBL
claims are preempted by federal law.
As to the New York General Business Law Section 349 and 350 claims,
to state a claim under either section, a plaintiff must allege that
a defendant has engaged in (1) consumer-oriented conduct that is
(2) materially misleading and that (3) plaintiff suffered injury as
a result of the allegedly deceptive act or practice.
Judge Karas finds that the Plaintiffs' allegations (i) that the
Defendant is one of the owners, manufacturers, and distributors of
the Products is sufficient to satisfy the first element of
Plaintiffs' GBL claim; (2) are sufficient at this stage to state a
claim that citric acid works as a preservative in the Products; (3)
suffice to allege a price premium theory of injury.
The Defendant argues that the Plaintiffs' GBL claims are preempted
because they attempt to use a purported violation of federal
labeling laws as a basis for supporting their claims under the GBL.
It argues that the Plaintiffs' claims are preempted because they
seek to impermissibly impose a requirement that citric acid always
be noted as a preservative where present in a product, a more
stringent standard than the FDA imposes in its regulations.
Judge Karas holds that the Plaintiffs' claims are not preempted by
the FDCA because they do not address the sufficiency of the
Defendant's labelling under the FDCA but rather its truthfulness.
While the Plaintiffs do point to FDA regulations and a warning
letter in support of their argument that citric acid functions as a
preservative in the Products, they assert that the Defendant's
labelling of the Products is deceptive. Thus, because the
Plaintiffs' claims sound in fraud and do not rely entirely on an
FDCA violation, they are not preempted by the FDCA.
For the foregoing reasons, Defendant's Motion is denied. The Court
will hold a conference on May 2, 2023 at 11:00 a.m. The Plaintiffs
are directed to amend the FAC to withdraw their claim for
injunctive relief within 30 days of the date the Opinion is issued.
The Clerk of Court is directed to terminate the pending motion.
At this early stage of the case, Judge Karas holds that these
allegations suffice to allege a price premium theory of injury.
A full-text copy of the Court's March 28, 2023 Opinion & Order is
available at https://tinyurl.com/4tpaabz7 from Leagle.com.
Bahar Sodaify, Esq. Christina Mirzaie, Esq. Ryan Clarkson, Esq. --
rclarkson@clarksonlawfirm.com -- Alan Gudino, Esq. Clarkson Law
Firm, P.C. Los Angeles, CA, Counsel for the Plaintiffs.
Ronald Y. Rothstein, Esq. -- rrothste@winston.com -- Sean H. Suber,
Esq. -- ssuber@winston.com -- Winston & Strawn LLP, Chicago, IL,
Counsel for the Defendant.
UNITED OF OMAHA: Court Denies Nieves' Bid for Class Certification
-----------------------------------------------------------------
In the case, MARILYN NIEVES, individually, and on behalf of the
class, Plaintiff v. UNITED OF OMAHA LIFE INSURANCE COMPANY, a
Nebraska Corporation, and DOES 1 through 10, inclusive, Defendants,
Case No. 21-cv-01415-H-KSC (S.D. Cal.), Judge Marilyn F. Huff of
the U.S. District Court for the Southern District of California
denies the Plaintiff's motion for class certification.
On July 6, 2021, the Plaintiff filed a class action suit in San
Diego Superior Court. One month later, United removed the case to
this Court. On Oct. 18, 2021, the Plaintiff filed her First Amended
Complaint on behalf of herself and a purported class of similarly
situated individuals, asserting claims for declaratory relief,
breach of contract, bad faith, and unfair competition.
On Jan. 13, 2023, the Plaintiff filed a motion for class
certification. On March 7, 2023, Defendant United filed its
opposition to the Plaintiff's motion for class certification and
the Plaintiff replied on March 13, 2023. The Court held a hearing
on the Plaintiff's Motion on March 27, 2023.
In June 2016, the Plaintiff purchased a whole life insurance policy
from United that insured the life of her son. She is the owner and
sole beneficiary of the Policy. She set up an automatic monthly
payment to pay the Policy premium. On Feb. 6, 2018, the Plaintiff's
automatic premium payment did not go through.
On March 16, 2018, United sent the Plaintiff a notice that her Feb.
6, 2018 payment had been returned. In response, the Plaintiff sent
United a letter providing new payment authorization and requested
that United deduct the past due premiums on April 2, 2018. (Id.)
United received the letter on March 26, 2018. United admitted that
it mistakenly did not process the new payment authorization
information contained in the Plaintiff's letter. Due to this error,
United notified the Plaintiff on April 6, 2018 that her policy had
been terminated.
Following her receipt of the April 6 termination letter, the
Plaintiff contacted United and asked to reinstate the Policy. On
April 16, 2018, United provided the Plaintiff with an application
for reinstatement. The Plaintiff filled out the application and
returned it to United. On June 8, 2018, United denied the
Plaintiff's reinstatement application due to her son's medical
condition.
On Sept. 3, 2020, the Plaintiff's counsel contacted United and
stated that United may have failed to comply with the Statutes and
improperly terminated the Policy. On Nov. 17, 2020, United sent a
letter to the Plaintiff offering to reinstate the Policy so long as
she paid the premium payments due since Feb. 6, 2018. The Plaintiff
did not respond.
On July 23, 2021, United sent the Plaintiff another letter
indicating that United "reinstated the Policy without the payment
of past due premiums." Following United's reinstatement, the
Plaintiff resumed paying the Policy's monthly premiums. Her Policy
is currently in force. Her son is living and the Plaintiff has not
made a claim under the Policy.
The Plaintiff's primary argument is that United failed to comply
with California Insurance Code Sections 10113.71 and 10113.72. The
Statutes impose several requirements on life insurance companies.
Specifically, the Statues require insurers to: (i) give policy
holders a 60-day grace period before canceling a policy; (ii)
inform policy holders of their right to designate at least one
additional person to receive notices of an overdue premium or
impending termination; (iii) provide written notice of nonpayment
to the policy holder and any named designee within 30 days of
nonpayment; and (iv) provide written notice to the policy holder
and any named designee at least thirty 30 days before a policy is
terminated.
The Statutes went into effect on Jan. 1, 2013. The California
Supreme Court recently held that the Statutes apply to all life
insurance policies in force when these two sections went into
effect, regardless of when the policies were originally issued.
Based on the McHugh decision, Plaintiff seeks to certify following
class: All vested owners and beneficiaries of life insurance
policies issued or delivered by Defendant in California, and which,
after Jan. 1, 2013, were lapsed or terminated for nonpayment of
premium without Defendant first providing all the protections
required by Insurance Code Section 10113.71 and 10113.72.
The Plaintiff's putative class includes 41,856 individuals with
United life insurance policies that lapsed after Jan. 1, 2013. The
class includes 21,458 individuals with policies that were issued
before Jan. 1, 2013 and 20,398 individuals with policies that were
issued after Jan. 1, 2013. The class includes four different types
of life insurance policies: universal, variable universal, whole,
and term. The Plaintiff's Policy is for whole life insurance.
Rule 23(a) provides four prerequisites to a class action:
numerosity, commonality, typicality, and adequacy. The party
seeking class certification bears the burden of satisfying each of
Rule 23(a)'s requirements. The proposed class must also satisfy one
of the subdivisions of Rule 23(b). Class certification under Rule
23(b)(2) is appropriate only where the primary relief sought is
declaratory or injunctive. While Rule 23(a)(2) asks whether there
are issues common to the class, Rule 23(b)(3) asks whether these
common questions predominate.
United does not dispute that the Plaintiff has satisfied Rule
23(a)'s numerosity requirement but contends that the Plaintiff has
not satisfied Rule 23(a)'s remaining requirements -- commonality,
typicality, or adequacy. It also contends that the Plaintiff has
not established that certification is appropriate under Rules
23(b)(2) or (b)(3). It further contends that certification of an
issues class under Rule 23(c)(4) is not appropriate.
Judge Huff finds that the Plaintiff has not satisfied Rule 23(a)'s
typicality requirement because her claims are not "typical of the
claims or defenses of the class." The Plaintiff's claims will
require individualized analysis of the terms of each class member's
policy, United's compliance with the Statutes with respect to each
class member's policy, and each class member's various defenses.
Additionally, Judge Huff finds that the Plaintiff has offered
little evidence showing that she has sustained an injury that is
typical of the class arising out of United's alleged noncompliance
with the Statutes. Her Policy, unlike most class members' policies,
was reinstated. Thus, the Plaintiff is atypical because different
questions of causation and damages underlie her claims.
The Plaintiff's evidence also does not establish that common issues
would predominate over individual issues with respect to United's
liability for its alleged violation of the Statues. Among other
things, Judge Huff finds that the Plaintiff's common evidence is
overrun by individual questions. Moreover, multiple district courts
with a case involving alleged violations of the Statutes have found
that similar individual issues predominate. A class member who
intentionally chose to let her policy lapse also suffers no damages
and thereby invokes an "individualized issue" not ripe for class
certification.
Lastly, the Plaintiff asks the Court to certify the issue of
whether the "Statutes apply to United's policies in force as of
January 1, 2013." This issue, according to Judge Huff, has already
been decided by the California Supreme Court in McHugh v.
Protective Life Ins. Co., 12 Cal. 5th 213, 220 (2021).
Additionally, the Plaintiff seeks to certify the issue of whether
"United's admitted failure to comply with the Statutes rendered its
terminations ineffective." The Plaintiff has failed to establish
that certification of such an issue would materially advance the
disposition of the litigation as a whole given the varied factual
questions that underly United's compliance with the Statutes.
Accordingly, certification is not appropriate under Rule 23(c)(4).
For the foregoing reasons, Judge Huff denies the Plaintiff's Motion
for class certification.
A full-text copy of the Court's March 28, 2023 Order is available
at https://tinyurl.com/2wvd55ud from Leagle.com.
UNITED STATES: Seeks More Time to Respond to Amended Complaint
--------------------------------------------------------------
In the class action lawsuit captioned as CHARLES LEWIS, et al., v.
UNITED STATES PAROLE COMMISSION, et al., Case No.
1:22-cv-02182-RCL (D.D.C.), the Defendants ask the Court to enter
an order extending the time, to and through May 26, 2023, to file
their initial response to Plaintiffs' Amended Complaint and Motion
to Certify Class and Appoint Lead Counsel.
In accordance with Local Civil Rule 7(m), the parties conferred and
plaintiffs, through counsel, graciously consent to the requested
relief.
On July 25, 2022, the Plaintiffs filed this lawsuit, bringing
claims for a writ of mandamus, ultra vires action, violations of
the Administrative Procedure Act, and a writ of habeas corpus
against Defendants.
On September 27, 2022, Plaintiffs filed an amended complaint and a
motion to certify the class and a motion to appoint lead counsel.
The Defendants’ response to the amended complaint and motions are
due on March 27, 2023.
The United States Parole Commission is the parole board responsible
for granting or denying parole to, and supervising the parole
releases of, incarcerated individuals who fall under its
jurisdiction.
A copy of the Defendants' motion dated March 21, 2023 is available
from PacerMonitor.com at https://bit.ly/3Gafaxw at no extra
charge.[CC]
The Defendants are represented by:
Matthew M. Graves, Esq.
Brian P. Hudak, Esq.
Stephanie R. Johnson, Esq.
UNITED STATES ATTORNEY’S OFFICE
601 D Street, N.W.
Washington, D.C. 20530
E-mail: Stephanie.Johnson5@usdoj.gov
VELODYNE LIDAR: Lead Plaintiffs Seek to Certify Class Action
------------------------------------------------------------
In the class action lawsuit captioned as MEYSAM MORADPOUR, et al.,
v. VELODYNE LIDAR, INC., et al., Case No. 3:21-cv-01486-SI (N.D.
Cal.), the Lead Plaintiff asks the Court to enter an order:
-- certify the action as a class action pursuant to Rule 23(a)
and
(b)(3) on behalf of:
"All persons who purchased Velodyne securities between July
2,
2020 and March 17, 2021, inclusive and were damaged
thereby;"
Excluded from the Class are the Defendants and members of
their
immediate families, the officers and directors of the
Company,
at all relevant times, and members of their immediate
families,
the legal representatives, heirs, successors or assigns of
any
of the foregoing, and any entity in which the Defendants have
or
had a controlling interest.
-- certifying Mrs. Smith as representative for the proposed
Class;
and
-- appointing KSF as Class Counsel.
The proposed Class Period begins on July 2, 2020, when Defendants
announced an agreement to merge with Velodyne, funded by cash and
new stock issuances, valuing the combined Company at $1.8 billion.
Cognizant of Hall's deep knowledge of Velodyne's operations and
prospects, and that investors were keenly focused on his profound
importance to the Company, Defendants repeatedly misrepresented
virtually throughout the entire Class Period that Hall would remain
deeply involved in all aspects of Velodyne's business" and
"actively involved in the post-combination company's product and
technology development strategy."
According to Hall, starting on July 2, 2020, the Defendants began
disregarding Hall's concerns while Graf and Dee began to recklessly
"curtail [Hall’s] involvement in the quality and selection of
products being developed, the contracts negotiated and integrity of
the Company's business," despite their near-complete lack of lidar
expertise.
The Class Period ends on March 17, 2021, when the Company filed its
Form 10-K. There, the Company acknowledged David Hall's removal as
Chairman of the Board and subsequent resignation from the Board of
Directors.
Velodyne is a Silicon Valley-based lidar technology company,
headquartered in San Jose, California. It was spun off from
Velodyne Acoustics in 2016.
A copy of the Plaintiffs' motion dated March 20, 2023 is available
from PacerMonitor.com at https://bit.ly/3KrtbK0 at no extra
charge.[CC]
The Plaintiffs are represented by:
Ramzi Abadou, Esq.
Lewis S. Kahn, Esq.
Alexander L. Burns, Esq.
KAHN SWICK & FOTI, LLP
580 California Street, Suite 1200
San Francisco, CA 94104
Telephone: (415) 459-6900
Facsimile: (504) 455-1498
E-mail: ramzi.abadou@ksfcounsel.com
lewis.kahn@ksfcounsel.com
alexander.burns@ksfcounsel.com
WALMART INC: Loses Bid to Dismiss Amended Rodriguez Consumer Suit
-----------------------------------------------------------------
In the case, NAOMY ALTAGRACIA GONZALEZ RODRIGUEZ, MOLLA BROWN, and
THOMAS RODRIGUEZ, individually on behalf of themselves and all
others similarly situated, Plaintiffs v. WALMART INC., Defendant,
Case No. 22-CV-2991 (JPO) (S.D.N.Y.), Judge J. Paul Oetken of the
U.S. District Court for the Southern District of New York denies
the Defendant's motion to dismiss the amended complaint in its
entirety.
Walmart markets and sells certain lidocaine patches and creams. The
Plaintiffs accuse the Defendant of falsely representing on the
packaging of those products that they (1) deliver a "maximum
strength" dose of lidocaine and (2) with respect to the patches,
function as a "stay-put flexible patch" that "lasts up to 12
hours."
The products at issue are two types of lidocaine patches ("Equate
Pain Relieving Patches" and "Equate Lidocaine + Menthol Patches")
and two types of lidocaine creams ("Equate Pain Relief Cream (Roll
On)") and "Equate Pain Relieving Cream Lidocaine"). All of the
products indicate that they contain 4% lidocaine. The Plaintiffs
allege that they have purchased three of the four products, with no
Plaintiff claiming to have purchased the Roll On product.
The Plaintiffs' complaint, therefore, alleges unjust enrichment on
behalf of themselves and a nationwide class (count 1), violation of
consumer protection statutes in New York and nationwide, on behalf
of themselves and the nationwide class (count 2); and violation of
sections 349 and 350 of the New York General Business Law on behalf
of themselves and a New York subclass (counts 3 and 4,
respectively). The Plaintiffs voluntarily dismissed their New York
unjust enrichment claim without prejudice.
The Plaintiffs filed the action on April 11, 2022, and amended
their complaint on July 8, 2022, in light of the Defendant's first
motion to dismiss. On July 29, 2022, the Defendant filed a motion
to dismiss the amended complaint pursuant to Federal Rules of Civil
Procedure 12(b)(1) and 12(b)(6).
Pending before the Court is the Defendant's motion to dismiss the
amended complaint in its entirety.
First, the Defendant contends that the Plaintiffs lack standing to
bring claims relating to the Equate Pain Relief Cream (Roll On)
because no Plaintiff alleges that they purchased the product. Its
argument implicates two types of standing analysis: Article III
standing and class standing.
Judge Oetken finds that each named Plaintiff can assert a claim
directly against Walmart based on their purchase of at least one of
the lidocaine products in question. This is sufficient to establish
Article III standing, even if the Plaintiffs seek to bring claims
on behalf of the putative class based on a product they did not
purchase. Moreover, the Plaintiffs have sufficiently alleged class
standing based on the Equate Pain Relief Cream (Roll On) for the
purposes of this motion to dismiss. The amended complaint
adequately alleges that the misrepresentation claimed with respect
to the Roll On is sufficiently similar to the misrepresentation
claimed for all three purchased products. Judge Oetken, however,
permits Walmart to raise this issue again at the class
certification stage, after the parties have benefited from further
discovery.
For these reasons, the Plaintiffs have preliminarily established
both Article III and class standing in relation to the Equate Pain
Relief Cream (Roll On).
Judge Oetken then turns to the Plaintiffs' substantive claims. He
finds that the Plaintiffs plausibly allege that the Defendant
improperly represents that three of its products -- the Equate Pain
Relieving Patches, the Equate Pain Relief Cream (Roll On), and
Equate Pain Relieving Cream Lidocaine ("the relevant products") --
contain a "maximum strength" or "max strength" dose of lidocaine,
in violation of New York General Business Law (GBL) sections 349
and 350. Because it is plausible that a reasonable consumer would
be misled by the Defendant's labels and omissions relating to the
"maximum strength" or "max strength" representations, the
Plaintiffs' GBL claims survive.
The Plaintiffs allege that the packaging for the two patch products
is misleading under New York GBL sections 349 and 350 because they
are not "stay-put flexible patched" that "last up to 12 hours." The
Defendant counters that "stay-put flexible patch" is non-actionable
puffery and that "lasts up to 12 hours" is not materially
misleading.
Judge Oetken finds the Defendant's arguments unpersuasive. Because
it is plausible that a reasonable consumer would be misled by the
Defendant's labels and omissions relating to the "stay-put flexible
patch" and "up to 12 hours" labels, he says the Plaintiffs' GBL
claims survive.
Finally, the Defendant argues that the Plaintiffs lack Article III
standing to represent putative class members whose claims are
governed by the laws of states other than New York. Separately, it
contends that because the Plaintiffs have dismissed their New York
unjust enrichment claims, they cannot bring any unjust enrichment
claim on behalf of the putative class.
Judge Oetken holds that the named Plaintiffs have standing to bring
an unjust enrichment claim on behalf of the putative class. The
Defendant's argument regarding the propriety of the named
Plaintiffs bringing an unjust enrichment claim on behalf of the
putative class members will be ripe for consideration at the class
certification stage when the Court considers the issue of
typicality -- whether the claims or defenses of the representative
parties are typical of the claims or defenses of the class.
For the foregoing reasons, the Defendant's motion to dismiss is
denied. The Defendant will file an answer within 21 days after the
date of the Opinion and Order.
The Clerk of Court is directed to close the motion at ECF Number
23.
A full-text copy of the Court's March 28, 2023 Opinion & Order is
available at https://tinyurl.com/mrwuwb2z from Leagle.com.
WILCO LIFE: Grundstrom Seeks to Certify Class & Subclass
--------------------------------------------------------
In the class action lawsuit captioned as JULIE GRUNDSTROM,
Individually, and as successor-in-interest to DR. RICHARD I.
APPLETON, and on Behalf of the Class, v. WILCO LIFE INSURANCE
COMPANY, an Indiana Corporation, Case No. 3:20-cv-03445-MMC (N.D.
Cal.), the Plaintiff asks the Court to enter an order certifying
her proposed Class and Sub-Class, appointing her as Class
Representative, and appointing Nicholas & Tomasevic as well as
Winters & Associates as Class Counsel.
The Class and Sub-Class defined as follows:
-- The Class
"All vested owners and beneficiaries of life insurance
policies
issued or delivered by Defendant, and its predecessor
insurers,
in California, and which, after January 1, 2013, were lapsed
or
terminated for nonpayment of premium without Defendant first
providing all the protections required by Insurance Code
Sections 10113.71 and 10113.72."
-- The Elder Abuse Sub-Class
All members of the Class defined above who were also 65 years
of
age or older at the time the policy lapsed or terminated."
The Plaintiff contends that the case is ideal for class
certification because it comes down to statutory interpretation.
Wilco operates as an insurance company. The Company provides life,
accident, and health insurance services to individuals.
A copy of the Plaintiff's motion dated March 20, 2023 is available
from PacerMonitor.com at https://bit.ly/3KoWWLh at no extra
charge.[CC]
The Plaintiff is represented by:
Craig M. Nicholas, Esq.
Alex Tomasevic, Esq.
NICHOLAS & TOMASEVIC, LLP
225 Broadway, 19th Floor
San Diego, CA 92101
Telephone: (619) 325-0492
Facsimile: (619) 325-0496
E-mail: cnicholas@nicholaslaw.org
atomasevic@nicholaslaw.org
- and -
Jack B. Winters, Jr., Esq.
Sarah Ball, Esq.
WINTERS & ASSOCIATES
8489 La Mesa Boulevard
La Mesa, CA 91942
Telephone: (619) 234-9000
Facsimile: (619) 750-0413
E-mail: jackbwinters@earthlink.net
sball@einsurelaw.com
WORKFORCE 7: Filing of Class Certification Bid Due August 11
------------------------------------------------------------
In the class action lawsuit captioned as VICTOR BALLAST, LUIS
SIMONE and MARQUIS RICHARDSON, individually and on behalf of all
others similarly situated, v. WORKFORCE 7 INC., CONSOLIDATED EDISON
COMPANY of NEW YORK, INC., VALI INDUSTRIES, INC. and RONALD HILTON,
jointly and severally, Case No. 1:20-cv-03812-ER (S.D.N.Y.), Hon.
Judge Edgardo Ramos entered a revised civil case discovery plan and
scheduling order as follows:
a. Non-expert depositions shall be completed by June 30, 2023;
b. Plaintiffs shall take the first step in class certification
motion practice by August 11, 2023;
c. Expert reports shall be served no later than September 15,
2023;
d. Rebuttal expert reports shall be served no later than October
13, 2023;
e. Expert witness depositions shall be completed by November 10,
2023; and
f. all discovery shall be completed by 90 days from the date of
a
decision on Plaintiffs’ class certification motion.
WorkForce 7 specializes in industries that need flaggers and
securing parking for construction companies and the utility
industries.
A copy of the Court's order dated March 20, 2023 is available from
PacerMonitor.com at https://bit.ly/3K7s4O8 at no extra charge.[CC]
ZOOM VIDEO: Settlement in Data Privacy Suits Under Appeal
---------------------------------------------------------
Zoom Video Communications, 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 beginning
on March 30, 2020, multiple putative class actions were filed
against the company in various U.S. federal district courts and
state courts relating to its alleged privacy and security
practices, including alleged data sharing with third parties.
The plaintiffs claim violations of a variety of state consumer
protection and privacy laws, and also assert state constitutional
and common law claims, such as negligence and unjust enrichment.
The U.S. Privacy Class Actions seek to certify both nationwide and
state-specific classes of individuals using the company's services
in certain time periods.
The plaintiffs seek various forms of injunctive and monetary
relief, including restitution, statutory and actual damages,
punitive damages, and attorneys' fees. The federal cases have been
transferred to and consolidated in the NDCA with the company's
consent; lead plaintiffs' counsel have been appointed; and
plaintiffs filed their first amended consolidated class action
complaint on October 28, 2020.
On March 11, 2021, the court granted in part, and denied in part,
the company's motion to dismiss, and gave plaintiffs leave to
amend. On July 30, 2021, the company entered into a settlement
agreement with plaintiffs to settle the action on a class-wide
basis, and plaintiffs filed a motion for preliminary approval of
the settlement with the court on July 31, 2021.
In October 21, 2021, the court preliminarily approved the
settlement. Under the terms of the settlement, the company have
paid $85.0 million into an escrow account that will be used to pay
claims filed by settlement class members, attorneys' fees and
expenses, administrative costs, and service payments to plaintiffs.
On April 22, 2022, the court granted final approval of the
settlement. On May 19, 2022, two objectors to the settlement
appealed the court's final approval order. On May 20, 2022, a third
objector appealed the court's final approval order. On October 17,
2022, the company, plaintiffs, and all three objector-appellants
agreed to settle the appeals, and on December 16, 2022, the court
approved the settlements. On January 13, 2023, an appeal of the
order approving the objector-appellant settlements was filed, which
is still pending.
Zoom Video Communications, Inc. is a software company based in
California
[*] Del. Shareholder Appraisal Petitions Back to Pre-Boom Levels
----------------------------------------------------------------
The annual volume of shareholder appraisal petitions filed in the
Delaware Court of Chancery reverted to pre-boom levels in 2022,
according to a new report by Cornerstone Research. The report,
Appraisal Litigation in Delaware: Trends in Petitions and Opinions,
2006–2022, examines trends in litigation in which shareholders
challenge the deal prices in proposed acquisitions. It found that
following the 2013–2017 filing boom in which petitions peaked at
76 in 2016, there were 20 appraisal petitions filed in 2022. This
is in line with the 2006–2012 historical average.
In the 2016 ruling in In re Appraisal of Dell Inc., questions were
raised about the reliance on deal price in determining fair value
in an appraisal context. Subsequent rulings have clarified the
approach used, changing the calculus for premiums awarded in
appraisal matters. This resulted in heightened risk for petitioners
who choose to take appraisal matters to trial.
"Our report looks at historical trends, and between 2006 and 2016,
court-awarded premiums averaged 27.2%. From 2017 onward, this
number has fallen to -8.4% on average," said Dr. Frank Schneider, a
report coauthor and head of the Cornerstone Research M&A,
Valuation, and Bankruptcy group. "We found a marked difference
between court-awarded premiums for public and private targets, with
public targets averaging 7.9% post-2017, compared to 17.3% between
2006 and 2016. Meanwhile, the court-awarded premiums for private
targets have averaged -10.8% post-2017, compared to 46.1% between
2006 and 2016."
Delaware Court rulings from 2016 onward have deferred to market
evidence in the form of the unaffected market price or the deal
price minus synergies and adjustments for any value change between
deal signing and closing. The robustness of the sale process
continues to be a determining factor, with the courts frequently
citing "objective indicia" to determine whether a sale process
produced a deal price reliable enough to be used in calculating
fair value.
"In rulings since Dell, DFC (DFC Global Corp. v. Muirfield Value
Partners), and AOL (In re Appraisal of AOL Inc.), the Delaware
Courts have more frequently cited 'objective indicia' used to
determine whether the deal price in a merger is a reliable
indicator of fair value," said Jakub Mydlarz, a Cornerstone
Research senior manager and report coauthor. "While the majority of
recent opinions have relied on deal price as the most reliable
indicator of fair value, those which have rejected deal price, such
as Jarden (In re Appraisal of Jarden Corp.) and Synapse (Kruse v.
Synapse Wireless Inc.), have generally not met one or more of
Delaware's objective indicia."
About Cornerstone Research
Cornerstone Research -- http://www.cornerstone.com-- provides
economic and financial consulting and expert testimony in all
phases of litigation and regulatory matters. The firm supports
clients with rigorous, objective analysis. Working with an
extensive network of leading academics, former regulators, and
industry specialists, Cornerstone Research identifies the most
qualified experts for every case.
Founded in 1989, Cornerstone Research has always been guided by its
core values: commitment to clients, experts, and staff, and to
delivering consistently high-quality service. The firm has over 700
staff and offices in Boston, Chicago, London, Los Angeles, New
York, San Francisco, Silicon Valley, and Washington.
Asbestos Litigation
ASBESTOS UPDATE: Avon Hit With $50.3MM Asbestos Exposure Verdict
----------------------------------------------------------------
Tara Strand, writing for mesothelioma.com, reports that in December
2022, a California jury ordered Avon Products Inc. to pay more than
$50 million in damages to one victim of asbestos exposure. The
plaintiff claimed the beauty giant's talc-based cosmetic products
contained asbestos, which led to her developing mesothelioma.
The lawsuit awarded the plaintiff $40 million in actual damages for
pain, suffering and some medical costs. The jury also ordered Avon
to pay an additional $10.3 million in punitive damages.
The plaintiff in the case is a 76-year-old woman who developed
mesothelioma after using Avon products for decades. She believed
these products were contaminated with asbestos. During the court
proceedings, the jury found that the company knew about the dangers
of asbestos contamination in its products.
Despite this, the company chose not to warn consumers. After seeing
the evidence, the jury stated Avon executives acted maliciously.
Hiding the truth about the talc-based products' risks led to
punitive damages.
The lawsuit is another in a long line of suits against cosmetic
companies for using asbestos-contaminated talc. Avon now joins
Johnson & Johnson (J&J), Revlon and other cosmetics companies
facing litigation and millions of dollars in damages from talc.
Unlike many other industries, the cosmetic industry is not strictly
regulated. But now these companies are being held accountable for
choosing profit over consumer safety. For example, J&J has faced
scrutiny over efforts to offload asbestos responsibility. The
questionable legal maneuver, known as the Texas Two-Step, has made
headlines recently.
Evidence shows Avon knew about asbestos risks in some of its
products. Still, the company plans to appeal the verdict. This is
not the first asbestos case where Avon has appealed the verdict.
For a mesothelioma patient, delaying compensation can cause
financial hardships quickly. The cost of mesothelioma treatment can
run in the tens of thousands of dollars. Mesothelioma settlements
and verdicts may help patients with these costs.
This suit is one of many Avon has faced over the last few years. As
of 2020, the company faced at least 130 lawsuits over talc. That
same year, the company stated it planned to remove talc from its
products. It is unclear if Avon has moved forward with that plan.
ASBESTOS UPDATE: Park-Ohio Holdings Defends 99 Exposure Cases
-------------------------------------------------------------
Park-Ohio Holdings Corp. is a co-defendant in approximately 99
cases asserting claims on behalf of approximately 162 plaintiffs
alleging personal injury as a result of exposure to asbestos,
according to the Company's Form 10-K filing with the U.S.
Securities and Exchange Commission.
The Company states, "These asbestos cases generally relate to
production and sale of asbestos-containing products and allege
various theories of liability, including negligence, gross
negligence and strict liability, and seek compensatory and, in some
cases, punitive damages.
"In every asbestos case in which we are named as a party, the
complaints are filed against multiple named defendants. In
substantially all of the asbestos cases, the plaintiffs either
claim damages in excess of a specified amount, typically a minimum
amount sufficient to establish jurisdiction of the court in which
the case was filed (jurisdictional minimums generally range from
$25,000 to $75,000), or do not specify the monetary damages sought.
To the extent that any specific amount of damages is sought, the
amount applies to claims against all named defendants.
"There are four asbestos cases, involving 20 plaintiffs, that plead
specified damages against named defendants. In each of the four
cases, the plaintiff is seeking compensatory and punitive damages
based on a variety of potentially alternative causes of action. In
two cases, the plaintiff has alleged three counts at $3 million
compensatory and punitive damages each; one count at $3 million
compensatory and $1 million punitive damages; one count at $1
million. In the third case, the plaintiff has alleged compensatory
and punitive damages, each in the amount of $20.0 million, for
three separate causes of action, and $5.0 million compensatory
damages for the fifth cause of action. In the fourth case, the
plaintiff has alleged compensatory and punitive damages, each in
the amount of $10.0 million, for ten separate causes of action."
A full-text copy of the Form 10-K is available at
https://bit.ly/3zfpHDT
*********
S U B S C R I P T I O N I N F O R M A T I O N
Class Action Reporter is a daily newsletter, co-published by
Bankruptcy Creditors' Service, Inc., Fairless Hills, Pennsylvania,
USA, and Beard Group, Inc., Washington, D.C., USA. Rousel Elaine T.
Fernandez, Joy A. Agravante, Psyche A. Castillon, Julie Anne L.
Toledo, Christopher G. Patalinghug, and Peter A. Chapman, Editors.
Copyright 2023. All rights reserved. ISSN 1525-2272.
This material is copyrighted and any commercial use, resale or
publication in any form (including e-mail forwarding, electronic
re-mailing and photocopying) is strictly prohibited without prior
written permission of the publishers.
Information contained herein is obtained from sources believed to
be reliable, but is not guaranteed.
The CAR subscription rate is $775 for six months delivered via
e-mail. Additional e-mail subscriptions for members of the same
firm for the term of the initial subscription or balance thereof
are $25 each. For subscription information, contact
Peter A. Chapman at 215-945-7000.
*** End of Transmission ***