/raid1/www/Hosts/bankrupt/CAR_Public/230414.mbx
C L A S S A C T I O N R E P O R T E R
Friday, April 14, 2023, Vol. 25, No. 76
Headlines
3M COMPANY: AFFF Contains Toxic PFAS, De Vera Class Suit Alleges
3M COMPANY: AFFF Contains Toxic PFAS, Preston Class Suit Alleges
9107 BAKERY: Fails to Pay Proper Wages, Tavera Suit Alleges
ALTRIA GROUP: Dothan City Sues Over E-cigarette Marketing Scheme
ALTRIA GROUP: Geneva City Sues Over E-cigarette Marketing Scheme
AMC ENTERTAINMENT: Faces Herrera Suit Over Website Access Barriers
AME & LULU LLC: Brown Files ADA Suit in S.D. New York
AMERICAN PAIN: Smith Files Suit in E.D. Texas
AROVAST CORPORATION: Finch Suies Over Defective Air Fryers
BANK OF CHINA: Faces Suit Over Commodity Trading Scheme
BE MONEY: Faces Canty et al. Suit Over Retaliation, Discrimination
BEAST HEALTH: Hedges Files ADA Suit in S.D. New York
BIMBO BAKERIES: Reid Wage-and-Hour Suit Removed to D.N.J.
BINANCE CAPITAL: Court Dismisses Kuklinski BIPA Suit With Prejudice
BLUESTEM BRANDS: Gotten Suit Transferred to D. Minnesota
BP EXPLORATION: Bid for Summary Judgment in Pettway Suit Granted
BP EXPLORATION: Bid for Summary Judgment in Williams Suit Granted
BP EXPLORATION: Summary Judgment Bid Granted; Duke Case Dismissed
BURGERFI INTERNATIONAL: Bids for Lead Plaintiff Naming Due June 5
CENTENE CORP: Court Dismisses Williams' Amended ERISA Complaint
CHIVE MEDIA GROUP: Roland Suit Transferred to W.D. Texas
CHRISTIAN DIOR: Court Ruled VTO Exempt Under BIPA's Healthcare
CIGNA HEALTH: Faces Suit Over Insurance Benefit Denial
CONTINUING CARE: Agrees to Settle Illegal Fees' Suit for $1-Mil.
COOPER'S HAWK: Fails to Pay Proper Wages, Burns Suit Alleges
CVS HEALTH: Fails to Pay Proper Wages, Benton Suit Alleges
DENTSPLY SIRONA: Faces Miami Suit Over $2.87 Share Drop Per Share
DIVERSIFIED ENERGY: Bid to Dismiss Amended McEvoy Class Suit Denied
DX ENTERPRISES: McClaine BIPA Class Suit Removed to S.D. Ill.
EAST OHIO GAS: Appeal From Refusal to Dismiss Landmark Suit Tossed
GRACO CHILDREN'S: Schmitt Suit Over Defective Car Seats Dismissed
GREEN MESSENGERS: Sanchez Suit Stayed Pending State Proceedings
HILTON HOTELS: Denial of Class Cert. in White ERISA Suit Reversed
INDIANA: Bill Banning Gender-Affirming Health Care May Lead to Suit
INMATE SERVICES: Class Settlement in Stearns Suit Wins Prelim. OK
KERRISDALE CAPITAL: Coffey Sues Over Stock Price Manipulation
LAKESHORE MANOR: Fails to Pay Proper Wages, Blanks-Austin Claims
LONGEVERON INC: Court Refuses to Approve Malespin's Class Deal
LOREAL SA: Eshelby Class Suit Over False Advertisement Dismissed
MADISON SQUARE: Settles Shareholders' Suit Over Rising Cost
MARATHON DIGITAL: Bids for Lead Plaintiff Appointment Due May 29
MDL 2741: $5.75MM in Atty.'s Fees Awarded in Roundup Liability Suit
MDL 2741: Settlement in Roundup Liability Suit Wins Final Approval
MEAD JOHNSON: Clean Label Suit Remanded to D.C. Superior Court
MEDLINE INDUSTRIES: Fails to Pay Proper Wages, Garnere Alleges
MGM RESORTS: Court Dismisses Scherer Suit for Lack of Jurisdiction
MIRAMAR, FL: Files Response of Class Suit Over Water Treatment
MOLSON COORS: Agrees to Settle Mislabeling Class Suit for $9.5-Mil.
NEW YORK: Denial of Judgment on Pleadings in Matzell Suit Upheld
NEW YORK: Faces 2nd Class Suit Over Nursing Home COVID Deaths
NEW YORK: Faces Class Suit Over Mismanaged Rental Subsidy Program
NEW YORK: Faces Class Suit Over Prolonged Solitary Confinement
NEW YORK: Magistrate Judge Hummel Recommends Dismissal of Cox Suit
NISSIN FOODS: Motion to Dismiss Mislabeling Suit Dismissed
NORFOLK SOUTHERN: Resolution on Special Counsel Agreement Discussed
NULIFE MED: Final Approval Hearing in Breach Suit Deal Set June 5
OPENSIDED MRI: E.D. Missouri Certifies Class A in Brust TCPA Suit
PELOTON INTERACTIVE: Motion to Dismiss Investors' Suit Granted
PEREGRINE ENTERPRISES: Carrion Sues Over Alleged Tip Skimming
PFIZER INC: Won Proposed Class Action Suit Over Patients' Copays
PITTSBURGH, PA: Files Motion for $275-M Class Suit Settlement
RAY MOLES: Wins in Part Bid to Compel Arbitration in Colores Suit
RJ REYNOLDS: Awarded $13.5-M Verdict Over Smoker's Cancer Death
SCRIBEAMERICA LLC: Fails to Pay Proper Wages, Garfield Alleges
SEATTLE CITY LIGHT: Final OK of Deien's Class Settlement Affirmed
STEEL PAN: Faces Grigoriou Suit Over Nonpayment of Proper Wages
SVB FINANCIAL: Faces Class Action Suit Over Securities Violations
TARGET CORP: Bids for Lead Plaintiff Appointment Due May 19
TESLA INC: Monopolizes Electric Vehicle Market, Doyle Suit Alleges
TESLA INC: Shares Employees' Private Videos, Yeh Suit Claims
TMX FINANCE: Fails to Prevent Data Breach, Carder Suit Alleges
TOP SURGEONS: Judgment After Final Approval of Faitro Deal Affirmed
TRUSTEES OF UNITE HERE: Court Narrows Claims in Acosta ERISA Suit
TUPPERWARE BRANDS: Bids for Lead Plaintiff Appointment Due May 19
UNILEVER UNITED: Murphy Sues Over Deceptive Home Cleaning Products
UNION OF EUROPEAN: Faces Class Suit Over Champion League Chaos
UNITED SERVICES: Bid to Dismiss Buddington Class Complaint Denied
UNITED WEALTH: Faces Class Action Over Wrongful Termination
VIMEO INC: Agrees to Settle BIPA Class Suit for $2.25-Mil.
VOLTECH ELECTRIC: Fails to Pay OT Wages Under FLSA, Da Silva Says
WESTLAKE ROYAL: Gonzales Seeks Proper Overtime Compensation
[*] Sen. Gillibrand Speaker at May 8 Class Action Conference
Asbestos Litigation
ASBESTOS UPDATE: Ampco-Pittsburgh Faces Product Liability Claims
ASBESTOS UPDATE: J&J Agrees to Pay $8.9BB Talc Settlement
ASBESTOS UPDATE: Revlon, Inc. Faces Product Liability Claims
*********
3M COMPANY: AFFF Contains Toxic PFAS, De Vera Class Suit Alleges
----------------------------------------------------------------
WILLIAM DE VERA v. 3M COMPANY (f/k/a Minnesota Mining and
Manufacturing Company); AGC CHEMICALS AMERICAS INC.; AMEREX
CORPORATION; ARCHROMA U.S. INC.; ARKEMA, INC.; BUCKEYE FIRE
EQUIPMENT COMPANY; CARRIER GLOBAL CORPORATION; CHEMDESIGN PRODUCTS,
INC.; CHEMGUARD, INC.; CHEMICALS, INC.; CHEMOURS COMPANY FC, LLC;
CHUBB FIRE, LTD; CLARIANT CORP.; CORTEVA, INC.; DEEPWATER
CHEMICALS, INC.; DU PONT DE NEMOURS INC. (f/k/a DOWDUPONT INC.);
DYNAX CORPORATION; E.I. DU PONT DE NEMOURS AND COMPANY;
KIDDE-FENWAL, INC.; KIDDE PLC; NATION FORD CHEMICAL COMPANY;
NATIONAL FOAM, INC.; THE CHEMOURS COMPANY; TYCO FIRE PRODUCTS LP,
as successor-in-interest to The Ansul Company; UNITED TECHNOLOGIES
CORPORATION; and UTC FIRE & SECURITY AMERICAS CORPORATION, INC.
(f/k/a GE Interlogix, Inc.), Case No. 2:23-cv-01376-RMG (D.S.C.,
Apr. 6, 2023) is a class action seeking damages for personal injury
resulting from exposure to aqueous film-forming foams ("AFFF")
containing the toxic chemicals collectively known as per and
polyfluoroalkyl substances ("PFAS").
The Defendants collectively designed, marketed, developed,
manufactured, distributed, released, trained users, produced
instructional materials, promoted, sold, and/or otherwise released
into the stream of commerce AFFF with knowledge that it contained
highly toxic and bio persistent PFASs, which would expose end users
of the product to the risks associated with PFAS. Further,
defendants designed, marketed, developed, manufactured,
distributed, released, trained users, produced instructional
materials, promoted, sold and/or otherwise handled and/or used
underlying chemicals and/or products added to AFFF which contained
PFAS for use in firefighting, the Plaintiff contends.
PFAS are highly toxic and carcinogenic chemicals. PFAS binds to
proteins in the blood of humans exposed to the material and remains
and persists over long periods of time. Due to their unique
chemical structure, PFAS accumulates in the blood and body of
exposed individuals.
Mr. De Vera regularly used, and was thereby directly exposed to,
AFFF in training and to extinguish fires during his working career
as a military and/or civilian firefighter. He was diagnosed with
colon cancer as a result of exposure to Defendants' AFFF products,
says the suit.
The Defendants' PFAS-containing AFFF products were used by the Mr.
De Vera in their intended manner, without significant change in the
products’ condition. He was unaware of the dangerous properties
of the Defendants' AFFF products and relied on the Defendants'
instructions as to the proper handling of the products.
The Plaintiff seeks to recover compensatory and punitive damages
arising out of the permanent and significant damages sustained as a
direct result of exposure to Defendants’ AFFF products at various
locations during the course of Plaintiff’s training and
firefighting activities. The Plaintiff further seeks injunctive,
equitable, and declaratory relief arising from the same.
3M manufactured, marketed, and sold AFFF from the 1960s to the
early 2000s.[BN]
The Plaintiff is represented by:
Richard Zgoda, Jr., Esq.
Steven D. Gacovino, Esq.
GACOVINO, LAKE & ASSOCIATES, P.C.
270 West Main Street
Sayville, NY 11782
Telephone: (631) 600-0000
Facsimile: (631) 543-5450
- and -
Gregory A. Cade, Esq.
Gary A. Anderson, Esq.
Kevin B. McKie, Esq.
ENVIRONMENTAL LITIGATION GROUP, P.C.
2160 Highland Avenue South
Birmingham, AL 35205
Telephone: (205) 328-9200
Facsimile: (205) 328-9456
3M COMPANY: AFFF Contains Toxic PFAS, Preston Class Suit Alleges
----------------------------------------------------------------
JOHN PRESTON v. 3M COMPANY (f/k/a Minnesota Mining and
Manufacturing Company); AGC CHEMICALS AMERICAS INC.; COMPLAINT AND
AMEREX CORPORATION; JURY DEMAND ARCHROMA U.S. INC.; ARKEMA, INC.;
BUCKEYE FIRE EQUIPMENT COMPANY; CARRIER GLOBAL CORPORATION;
CHEMDESIGN PRODUCTS, INC.; CHEMGUARD, INC.; CHEMICALS, INC.;
CHEMOURS COMPANY FC, LLC; CHUBB FIRE, LTD; CLARIANT CORP.; CORTEVA,
INC.; DEEPWATER CHEMICALS, INC.; DU PONT DE NEMOURS INC. (f/k/a
DOWDUPONT INC.); DYNAX CORPORATION; E.I. DU PONT DE NEMOURS AND
COMPANY; KIDDE-FENWAL, INC.; KIDDE PLC; NATION FORD CHEMICAL
COMPANY; NATIONAL FOAM, INC.; THE CHEMOURS COMPANY; TYCO FIRE
PRODUCTS LP, as successor-in-interest to The Ansul Company; and
UNITED TECHNOLOGIES CORPORATION; UTC FIRE & SECURITY AMERICAS
CORPORATION, INC. (f/k/a GE Interlogix, Inc.), Case No.
2:23-cv-01378-RMG (D.S.C., Apr. 6, 2023) is a class action seeking
damages for personal injury resulting from exposure to aqueous
film-forming foams containing the toxic chemicals collectively
known as per and polyfluoroalkyl substances.
The Defendants collectively designed, marketed, developed,
manufactured, distributed, released, trained users, produced
instructional materials, promoted, sold, and/or otherwise released
into the stream of commerce AFFF with knowledge that it contained
highly toxic and bio persistent PFASs, which would expose end users
of the product to the risks associated with PFAS. Further,
defendants designed, marketed, developed, manufactured,
distributed, released, trained users, produced instructional
materials, promoted, sold and/or otherwise handled and/or used
underlying chemicals and/or products added to AFFF which contained
PFAS for use in firefighting, the Plaintiff contends.
PFAS are highly toxic and carcinogenic chemicals. PFAS binds to
proteins in the blood of humans exposed to the material and remains
and persists over long periods of time. Due to their unique
chemical structure, PFAS accumulates in the blood and body of
exposed individuals.
Mr. Preston regularly used, and was thereby directly exposed to,
AFFF in training and to extinguish fires during his working career
as a military and/or civilian firefighter. He was diagnosed with
prostate cancer as a result of exposure to the Defendants' AFFF
products, says the suit.
The Defendants' PFAS-containing AFFF products were allegedly used
by the Mr. Preston in their intended manner, without significant
change in the products' condition. He was unaware of the dangerous
properties of the Defendants' AFFF products and relied on the
Defendants' instructions as to the proper handling of the products.
The Plaintiff seeks to recover compensatory and punitive damages
arising out of the permanent and significant damages sustained as a
direct result of exposure to Defendants' AFFF products at various
locations during the course of Plaintiff's training and
firefighting activities. The Plaintiff further seeks injunctive,
equitable, and declaratory relief arising from the same.
3M manufactured, marketed, and sold AFFF from the 1960s to the
early 2000s.[BN]
The Plaintiff is represented by:
Richard Zgoda, Jr., Esq.
Steven D. Gacovino, Esq.
GACOVINO, LAKE & ASSOCIATES, P.C.
270 West Main Street
Sayville, NY 11782
Telephone: (631) 600-0000
Facsimile: (631) 543-5450
- and -
Gregory A. Cade, Esq.
Gary A. Anderson, Esq.
Kevin B. McKie, Esq.
ENVIRONMENTAL LITIGATION GROUP, P.C.
2160 Highland Avenue South
Birmingham, AL 35205
Telephone: (205) 328-9200
Facsimile: (205) 328-9456
9107 BAKERY: Fails to Pay Proper Wages, Tavera Suit Alleges
-----------------------------------------------------------
ELIZABETH GONZALEZ TAVERA, individually and on behalf of all others
similarly situated, Plaintiff v. 9107 BAKERY CORP. d/b/a LA NUEVA
COLOMBIA, ALEX CASTRO and NADIA ALMADA, as individuals, Defendants,
Case No. 706871/2023 (N.Y. Sup., March 31, 2023) alleges that the
Defendants violated the New York Labor Law and its related state
regulations.
Plaintiff Tavera was employed as a waitress and cashier by 9107
Bakery Corp. from in or around 2009 until in or around March 2023.
Plaintiff regularly worked approximately 63 hours or more hours
each week from in or around March 2017 until in or around December
2019. In her complaint, Tavera claims that the Defendants failed to
pay her the legally prescribed minimum wage for all her hours
worked during the relevant statutory period. She also claims that
the Defendants did not pay her at a wage rate of time and a half
for her hours regularly worked over 40 hours in a work week.
The 9107 Bakery Corp. is a New York domestic business corporation,
organized under the laws of the State of New York with principal
executive offices located at 9107 31st Ave., East Elmhurst, NY.
[BN]
The Plaintiff is represented by:
Roman Avshalumov, Esq.
HELEN F. DALTON & ASSOCIATES, P.C.
80-02 Kew Gardens Road, Suite 601
Kew Gardens, NY 11415
Telephone: (718) 263-9591
ALTRIA GROUP: Dothan City Sues Over E-cigarette Marketing Scheme
----------------------------------------------------------------
DOTHAN CITY SCHOOLS v. ALTRIA GROUP, INC., ALTRIA CLIENT SERVICES,
LLC; ALTRIAGROUP DISTRIBUTION COMPANY; PHILIP MORRIS USA, INC.; and
JOHN DOES 1-100, INCLUSIVE, Case No. 3:23-cv-01654 (N.D. Cal., Apr.
6, 2023) is a class action complaint seeking injunctive relief,
abatement and damages arising out of the damages incurred as a
result of the Defendants' e-cigarette products deceptive marketing
scheme.
The Defendants' marketing strategy, advertising, and product design
targets minors, especially school age minors, and has dramatically
increased the use of e-cigarettes amongst the student body of the
Dothan City Schools. The Defendants' conduct has caused many
students to become addicted to Defendants' e-cigarette products,
the suit says.
The Plaintiff, and similarly situated school districts in the State
of Alabama, have redirected significant resources to combat
Defendants' deceptive marketing scheme, to educate its students on
the true dangers of Defendants' e-cigarette products and to prevent
the possession and use of Defendants' e-cigarette products on
Plaintiffs' property, added the suit.
Altria produces and markets tobacco, cigarettes and related
products.[BN]
The Plaintiff is represented by:
James P. Frantz, Esq.
William B. Shinoff, Esq.
Jade S. Koller, Esq.
Kristina Aghazaryan, Esq.
FRANTZ LAW GROUP, APLC
402 West Broadway, Suite 860
San Diego, CA 92101
Telephone: (619) 233-5945
Facsimile: (619) 525-7672
E-mail: jpf@frantzlawgroup.com
wshinoff@frantzlawgroup.com
jkoller@frantzlawgroup.com
kaghazaryan@frantzlawgroup.com
ALTRIA GROUP: Geneva City Sues Over E-cigarette Marketing Scheme
----------------------------------------------------------------
GENEVA CITY SCHOOLS, v. ALTRIA GROUP, INC., ALTRIA CLIENT SERVICES,
LLC; ALTRIA GROUP DISTRIBUTION COMPANY; PHILIP MORRIS USA, INC.;
and JOHN DOES 1-100, INCLUSIVE, Case No. 3:23-cv-01654 (N.D. Cal.,
Apr. 6, 2023) is a class action complaint seeking injunctive
relief, abatement and damages arising out of the damages incurred
as a result of the Defendants' e-cigarette products deceptive
marketing scheme.
The Defendants' marketing strategy, advertising, and product design
targets minors, especially school age minors, and has dramatically
increased the use of e-cigarettes amongst the student body of the
Geneva City Schools. The Defendants' conduct has caused many
students to become addicted to Defendants' e-cigarette products,
the suit says.
The Plaintiff, and similarly situated school districts in the State
of Alabama, have redirected significant resources to combat
Defendants' deceptive marketing scheme, to educate its students on
the true dangers of Defendants' e-cigarette products and to prevent
the possession and use of Defendants' e-cigarette products on
Plaintiffs' property, asserts the suit.
Altria produces and markets tobacco, cigarettes and related
products.
The Plaintiff is represented by:
James P. Frantz, Esq.
William B. Shinoff, Esq.
Jade S. Koller, Esq.
Kristina Aghazaryan, Esq.
FRANTZ LAW GROUP, APLC
402 West Broadway, Suite 860
San Diego, CA 92101
Telephone: (619) 233-5945
Facsimile: (619) 525-7672
E-mail: jpf@frantzlawgroup.com
wshinoff@frantzlawgroup.com
jkoller@frantzlawgroup.com
kaghazaryan@frantzlawgroup.com
AMC ENTERTAINMENT: Faces Herrera Suit Over Website Access Barriers
------------------------------------------------------------------
CARLOS HERRERA, on behalf of himself and all others similarly
situated, Plaintiff v. AMC ENTERTAINMENT HOLDINGS, INC., Defendant,
Case No. HUD-L-001157-23 (N.J. Sup. Ct., March 31, 2023) alleges
that the Defendant violated the Americans with Disabilities Act by
failing to maintain and operate its website in a way to make it
fully accessible for blind or visually-impaired people.
Due to Defendant's violations of the ADA, and the harm it has
caused, Plaintiff seeks damages, fees, costs, and injunctive
relief.
AMC Entertainment Holdings, Inc. is doing business and marketing to
New Jersey customers. It maintains and operates its website,
https://www.amctheatres.com.
The Plaintiff is represented by:
Daniel Zemel, Esq.
ZEMEL LAW LLC
660 Broadway
Paterson, NJ 07514
Telephone: (862) 227-3106
E-mail: dz@zemellawllc.com
AME & LULU LLC: Brown Files ADA Suit in S.D. New York
-----------------------------------------------------
A class action lawsuit has been filed against Ame & Lulu, LLC. The
case is styled as Lamar Brown, on behalf of himself and all others
similarly situated v. Ame & Lulu, LLC, Case No. 1:23-cv-02883
(S.D.N.Y., April 6, 2023).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Ame & Lulu -- https://www.ameandlulu.com/ -- makes accessories for
an active lifestyle - tennis & golf accessories, totes, travel,
beauty and more.[BN]
The Plaintiff is represented by:
Mars Khaimov, Esq.
10826 64th Avenue, Ste. 2nd Floor
Forest Hills, NY 11375
Phone: (917) 915-7415
Email: mars@khaimovlaw.com
AMERICAN PAIN: Smith Files Suit in E.D. Texas
---------------------------------------------
A class action lawsuit has been filed against American Pain and
Wellness, PLLC. The case is styled as Richard Smith, on behalf of
himself and all others similarly situated v. American Pain and
Wellness, PLLC, Case No. 4:23-cv-00295 (E.D. Tex., April 5, 2023).
The nature of suit is stated as Other Contract for Breach of
Contract.
American Pain and Wellness, PLLC --
https://www.painandwellness.com/ -- is a pain control clinic in
Allen, Texas.[BN]
The Plaintiff is represented by:
Elton Joe Kendall, Esq.
KENDALL LAW GROUP, PLLC - DALLAS
3811 Turtle Creek Blvd., Suite 1450
Dallas, TX 75219
Phone: (214) 744-3000
Fax: (214) 744-3015
Email: jkendall@kendalllawgroup.com
AROVAST CORPORATION: Finch Suies Over Defective Air Fryers
----------------------------------------------------------
JEANNETTE FINCH; and NAM TAO, individually and on behalf of all
others similarly situated, Plaintiffs v. AROVAST CORPORATION d/b/a
COSORI CORPORATION, Defendant, Case No. 8:23-cv-00599 (C.D. Cal.,
April 5, 2023) arises from the unfair and deceptive business
practices by the Defendant in the manufacturing, distributing,
marketing, and selling more than two million defective air fryers
that could catch fire.
The Plaintiff alleges in the complaint that from June 2018 to
February 23, 2023, the Defendant failed to disclose to or warn
consumers that the Products were at unreasonable risk of fire even
though Defendant knew of that risk long before February 2023 due to
consumer injury reports and reports of fires and overheating; its
sophistication; the substantial length of time during which the
Defendant was manufacturing the defective Products.
The Plaintiffs relied on the Defendant's material
misrepresentations about the Products, including misleading and
incomplete representations that the Products were safe and had
overheat protection. Moreover, the Plaintiffs did not know and
could not know through reasonable inspection that the Products
could cause fires and burning, and Defendant failed to disclose
that risk.
AROVAST CORPORATION d/b/a COSORI CORPORATION manufactures and sells
line of home cooking essentials such as air fryers, toaster ovens,
food dehydrators, and kettles. [BN]
The Plaintiffs are represented by:
Daniel L. Keller, Esq.
KELLER, FISHBACK & JACKSON LLP
28720 Canwood Street, Suite 200
Agoura Hills, CA 91301
Telephone: (818) 342-7442
Facsimile: (818) 342-7616
Email: dkeller@kfjlegal.com
- and -
Stephen J. Fearon, Jr., Esq.
Paul V. Sweeny, Esq.
SQUITIERI & FEARON, LLP
305 Broadway, 7th Floor
New York, NY 10007
Telephone: (212) 421-6492
Facsimile: (212) 421-6553
Email: stephen@sfclasslaw.com
paul@sfclasslaw.com
BANK OF CHINA: Faces Suit Over Commodity Trading Scheme
-------------------------------------------------------
S.G. and M.G., individually and on behalf of all others similarly
situated, Plaintiffs v. BANK OF CHINA LTD.; BANK OF CHINA U.S.A.;
BOC INTERNATIONAL HOLDINGS LTD.; BOCI COMMODITIES & FUTURES (USA)
LLC; CME GROUP INC.; and NEW YORK MERCANTILE EXCHANGE, INC.,
Defendants, Case No. 1:23-cv-02866 (S.D.N.Y., April 5, 2023) is a
class action lawsuit on behalf of all similarly situated customers
of Defendant Bank of China Ltd. in and outside China, who were
lured to purchase the Crude Oil Treasure between January, 2018 and
April, 2020 and suffered staggering loss.
The Plaintiffs allege in the complaint that the Defendants colluded
in an unlawful scheme to devise, implemented and marketed to mass
retail market the COT in violation of Commodity Exchange Act. The
COT is an extremely risky derivative investment product
encapsulating the West Texas Intermediate light sweet crude oil
futures contracts traded on the NYMEX, a futures and options
exchange owned and operated by Defendants CME Group Inc. and New
York Mercantile Exchange, Inc.
The Defendants managed the COT in a reckless and negligent manner,
especially in the case of May 2020 WTI futures contracts, in breach
of their contractual and fiduciary duty owed to Plaintiffs,
resulting in irreparable and severe harm to Plaintiffs, says the
suit.
BANK OF CHINA LIMITED provides banking services. The Company offers
deposits, loans, foreign currency transaction, fund settlement, and
other services. Bank of China provides its services to individuals,
enterprises, and other clients. [BN]
The Plaintiffs are represented by:
John Y. Tang, Esq.
TANG PC
1702 Flushing Ave
Ridgewood, NY 11385
Telephone: (212) 363-0188
Facsimile: (212) 981-4869
Email: john.tang@gettang.com
-and -
Wenjie Cai, Esq.
TANG PC
1702 Flushing Ave
Ridgewood, NY 11385
Telephone: (212) 363-0188
Facsimile: (212) 981-4869
Email: ericat@gettang.com
BE MONEY: Faces Canty et al. Suit Over Retaliation, Discrimination
------------------------------------------------------------------
BRITTANY CANTY, DILLON WELCH, AND TERRANCE KNOX INDIVIDUALLY AND ON
BEHALF OF SIMILARLY SITUATED, PLAINTIFFS, v. BE MONEY INC., D/B/A
DAYLIGHT, META BANK (AKA, PATHWARD FINANCIAL, INC.), ROB CURTIS,
AND BILLIE SIMMONS, DEFENDANTS, Case No. 1:23-cv-02470 (E.D.N.Y.,
March 31, 2023) seeks for relief according to the New York State
Human Rights Law, NYSHRL Retaliation, New York City Human Rights
Law, NYCHRL Retaliation, New York State Whistleblower,
Whistleblower Retaliation, fraud, wage discrimination, and
Constructive Discharge.
Allegedly, the Plaintiffs witnessed corrupt and questionable
practices by members of Respondents' founders and senior
management. However, the Plaintiffs have experienced severe
retaliation after raising concerns surrounding the mismanagement of
funds and the intentional misrepresentations by Respondent's
founders and senior management to secure funding from investors,
says the suit.
Be Money Inc. is a United States financial services firm and a
financial holding company incorporated in the state of New York
with its principal place of business in New York. It operates a
digital banking platform that serves LGBT+ people. [BN]
The Plaintiffs are represented by:
Tyrone A. Blackburn, Esq.
T. A. BLACKBURN LAW, PLLC
1242 E. 80th St 3rd Floor
Brooklyn, NY 11236
Telephone: (347) 427-5999
BEAST HEALTH: Hedges Files ADA Suit in S.D. New York
----------------------------------------------------
A class action lawsuit has been filed against Beast Health, LLC.
The case is styled as Donna Hedges, on behalf of herself and all
other persons similarly situated v. Beast Health, LLC, Case No.
1:23-cv-02901 (S.D.N.Y., April 6, 2023).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Beast Health -- https://thebeast.com/ -- is a wellness brand.[BN]
The Plaintiff is represented by:
Jeffrey Michael Gottlieb, Esq.
Michael A. LaBollita, Esq.
GOTTLIEB & ASSOCIATES
150 E. 18th Street, Suite PHR
New York, NY 10003
Phone: (212) 228-9795
Email: nyjg@aol.com
michael@gottlieb.legal
BIMBO BAKERIES: Reid Wage-and-Hour Suit Removed to D.N.J.
---------------------------------------------------------
CRAIG REID, on behalf of himself and all other similarly situated
v. BIMBO BAKERIES USA, INC., BIMBO FOODS BAKERIES DISTRIBUTION,
LLC, BIMBO FOOD BAKERIES DISTRIBUTION INC., Case No. BUR-L-0305-23
(Filed March 8, 2023) was removed from the Superior Court of the
State of New, Jersey, Burlington County, where it is currently
pending, to the United States District Court for the District of
New Jersey on Apr. 6, 2023.
The District Court for the District of New Jersey Clerk assigned
Case No. 1:23-cv-01969 to the proceeding.
The Plaintiff asserts overtime claims alleging that he is entitled
to ten or more hours of overtime pay per week for a six-year period
in addition to reimbursement of alleged wage deductions (including
those associated with communication charges, handheld supplies,
technology fees and other miscellaneous expenses) and reimbursement
of expenses associated with such items as gas, tolls, insurance
premiums and vehicle maintenance.
There are two distinct periods at issue for Plaintiff's claims. For
claimed unpaid overtime and expense deductions between February 9,
2017 and August 6, 2019, the New Jersey Wage Payment Law and New
Jersey Wage and Hour Law permit recovery of the actual unpaid wages
or expense deductions. For unpaid wages or expenses incurred on or
after August 6, 2019, the New Jersey Wage Theft Act permits
recovery of treble damages.
Plaintiff Craig Reid is a citizen of New Jersey. His Complaint
provides that he works as what he calls a distributor in and around
Bergen County, New Jersey.
Bimbo Bakeries provides bakery products. The Company wholesales and
distributes breads, rolls, chips, tortillas, cookies, pies, cakes,
and pastries.[BN]
The Defendants are represented by:
Sean P. Lynch, Esq.
Ashley D. Chilton, Esq.
Michael J. Puma, Esq.
MORGAN, LEWIS & BOCKIUS LLP
502 Carnegie Center
Princeton, NJ 08540
Telephone: (609) 919-6611
E-mail: sean.lynch@morganlewis.com
ashley.chilton@morganlewis.com
michael.puma@morganlewis.com
BINANCE CAPITAL: Court Dismisses Kuklinski BIPA Suit With Prejudice
-------------------------------------------------------------------
In the case, KAMIL KUKLINSKI, Individually, and on Behalf of All
Others Similarly Situated, Plaintiff v. BINANCE CAPITAL MANAGEMENT
CO., LTD, BAM TRADING SERVICES INC. d/b/a Binance.US, and JUMIO
CORPORATION, Defendants, Case No. 21-cv-001425-SPM (S.D. Ill.),
Judge Stephen P. McGlynn of the U.S. District Court for the
Southern District of Illinois:
a. grants the motion to dismiss the complaint filed by Binance
Capital Management Co., Ltd. d/b/a Binance ("BCM") with
prejudice; and
b. denies the motions to dismiss the complaint filed by BAM
Trading Services, Inc., d/b/a Binance.US, and Jumio Corp.
Kuklinski brings a proposed class action against Defendants BCM,
BAM, and Jumio for alleged violations of the Illinois Biometric
Privacy Act ("BIPA"), codified at 740 ILCS Section 14/1, et seq.
BCM is a digital asset marketplace or cryptocurrency exchange which
allows account holders using the company platform to purchase over
500 types of cryptocurrency. Although BCM claims to operate in a
decentralized matter, BCM is a registered entity in the British
Virgin Islands.
In June of 2019, BCM began ending trade for U.S. customers, and in
September 2019, partnered with BAM to launch trading services for
users within the U.S. BAM is a digital asset marketplace or
cryptocurrency exchange which allows Illinois account holders to
purchase various cryptocurrencies when using the company's
platform. Both BAM and BCM collect fees for the purchase and sale
of cryptocurrency by its account holders. BAM is a foreign
corporation headquartered in California and operating under the
laws of Delaware.
BAM utilized Jumio's software as part of its identity verification
process, which required taking images of a user's driver's license
or other photo identification, along with a "selfie" of the user to
capture, analyze and compare biometric data of the user's facial
features. Jumio is a foreign corporation operating under the laws
of Delaware and headquartered in California.
Kuklinski is a resident of Cook County, Illinois. On March 15,
2021, he downloaded the BAM application for his iPhone and created
an account while he was on Cook County, Illinois. During the
account creation process, Kuklinski entered his personal
information, including his name, birthdate and home address. He was
also prompted to review and accept a "Self-Directed Custodial
Account Agreement" for an entity known as Prime Trust, LLC that had
no reference to collection of any biometric data.
While creating his account with BAM, Kuklinski was not given proper
notice that the uploaded images would capture and store his
biometric data. Kuklinski did not sign a written release under BIPA
regarding the collection of his biometric data by BAM or Jumio.
The Illinois General Assembly enacted the BIPA in 2008 to protect a
person's privacy interests in his "biometric identifiers", which
includes fingerprints, retina and iris scans, hand scans and facial
geometry. BIPA was created in response to the growing use of
biometrics in the business and security screening sectors. Section
15 of the Act comprehensively regulates the collection, use,
retention, disclosure and dissemination of biometric identifiers.
Section 15(b) of the Act deals with informed consent and prohibits
private entities from collecting, capturing, or otherwise obtaining
a person's biometric identifiers or information without the
person's informed written consent.
On Oct. 5, 2021, Kuklinski filed a two-count class action Complaint
against the Defendants in the Twentieth Judicial Circuit, St. Clair
County, Illinois. Count I asserted violations of the Illinois
Biometric Information Privacy Act, while Count II asserted unjust
enrichment. The action was brought pursuant to 735 ILCS Section
5/2-801 on behalf of Kuklinski and the following putative class:
"All Illinois Binance.US users and account holders whose facial and
biometric data were collected prior to May 25, 2021."
On Nov. 12, 2021, BAM timely removed Kuklinski's action to this
Court under 28 U.S.C. Section 1332(d), diversity of citizenship,
and 28 U.S.C. Section 1453, CAFA. On Jan. 31, 2022, the Defendants
filed their initial motions to dismiss; however, prior to ruling on
the respective motions, Kuklinski obtained leave to amend the
complaint, and on Feb. 22, 2022, the amended complaint was filed.
On March 15, 2022, all three motions to dismiss the first amended
complaint were filed. Jumio's motion was brought pursuant to Rule
12(b)(6) of the Federal Rules of Civil Procedure and asserted five
grounds for dismissal. BCM filed its motion pursuant to Rule
12(b)(2) of the Federal Rules of Civil, arguing that the
Plaintiff's allegations are insufficient to show personal
jurisdiction. Alternatively, BCM claims the Plaintiff did not
adequately plead a cause of action against it and seeks dismissal
under Rule 12(b)(6). Within its motion which was also brought
pursuant to Rule 12(b)(6), BAM asserts four arguments for dismissal
of the BIPA claims.
BCM raises two main arguments in its motion to dismiss. First, BCM
argues that the amended complaint must be dismissed because the
Court lacks personal jurisdiction. Second, and in the alternative,
it contends that the amended complaint should be dismissed because
Kuklinski does not adequately plead any claims against it.
Judge McGlynn grants BCM's Motion to Dismiss for lack of personal
jurisdiction. Whether or not there is general jurisdiction over BAM
does not confer general jurisdiction over BCM. Accordingly, Judge
McGlynn does not need to address the alternative argument that the
Plaintiff failed to state causes of action under BIPA and for
unjust enrichment. Furthermore, because the parties have engaged in
jurisdictional discovery and seek to move forward on the other
defendants, the dismissal is with prejudice.
In its motion, which was brought pursuant to Rule 12(b)(6), BAM
argues that the Plaintiff failed to state any cause of action so
the BIPA claims as well as the claims for unjust enrichment should
be dismissed. As for BIPA, BAM first claims to be a "financial
institution" and BIPA does not apply to financial institutions.
Second, it claims California law, not Illinois law applies. Third,
BAM argues that BIPA does not apply extraterritorially. Finally, it
claims that the Plaintiff did not adequately allege that BAM
violated BIPA. BAM also claims that the unjust enrichment claim is
derivative of the BIPA action and that the Plaintiff did not
adequately plead that BAM was unjustly enriched.
Judge McGlynn holds that (i) nowhere in the Complaint is BAM
described as a financial institution, that is engaged in any of the
aforementioned activities that would subject it to Title V of the
Gramm-Leach-Bliley Act ("GLBA"); (ii) to apply California law would
likely foreclose every one of Kuklinski's claims against BAM; (iii)
the relevant events occurred primarily and substantially in
Illinois; and (iv) BAM was placed on notice of the potential
liability under BIPA. Accordingly, Judge McGlynn finds that
Kuklinski has adequately alleged a cause of action against BAM.
Accordingly, Kuklinski has pled sufficient facts to state a cause
of action against BAM.
Because the Plaintiffs have sufficiently alleged their BIPA claims,
Judge McGlynn also denies BAM's motion to dismiss the unjust
enrichment claim that is secondary to the BIPA claims.
In its motion to dismiss, Jumio asserts the following five reasons
for dismissal: (1) BIPA does not apply to the case because BAM is a
financial institution subject to GLBA; (2) BIPA has no
extraterritorial application; (3) Jumio has developed a publicly
available retention policy; (4) Claims against Jumio before March
24, 2019 are preempted by settlement in Prelipceanu v. Jumio
Corporation, 2018-CH-15883 (Cook County, IL July 21, 2020); and,
(5) Application of BIPA against Jumio violates the First
Amendment.
Judge McGlynn opines that (i) BAM was not exempt under BIPA; (ii)
there are sufficient facts alleged to plausibly support Kuklinski's
claim that the conduct against Jumio also occurred in Illinois to
deny dismissal and proceed to discovery; (iii) the mere fact that
Jumio may or may not have complied with BIPA does not bely the fact
that there may have been a violation of the BIPA; (iv) he will
consider whether any potential recovery will be limited to claims
arising after June 23, 2019 at a more appropriate time; and (v)
there is no restrictive speech in the First Amendment as applied to
BIPA Section 14/15 (b), or if there was restrictive speech, it was
a content-neutral restriction that satisfied the intermediate level
of scrutiny.
In light of the forgoing, Judge McGlynn holds that the Court does
not have jurisdiction over BCM; however, Kuklinski has sufficiently
pled causes of action against BAM and Jumio and has plausibly
alleged that he is entitled to relief. This is the pleading stage,
not the proving stage. Because the purpose of a Rule 12(b)(6)
motion to dismiss is to test the sufficiency of the complaint, not
to resolve the case on the merits, any disputed issues may be
better suited for disposition on a motion for summary judgment,
after the case has been more fully developed through discovery.
Accordingly, Judge McGlynn grants the motion to dismiss for lack of
jurisdiction filed by BCM with prejudice; however, he denies the
motions to dismiss filed by Defendants BAM and Jumio. BAM and Jumio
will answer the amended complaint within 14 days, or by April 19,
2023.
Finally, Judge McGlynn lifts the stay that was entered on July 29,
2022. Additionally, because many of the deadlines set forth in the
Scheduling Order were delayed by the stay, the presumptive trial is
extended from February 2024 to November 2024. As such, the parties
will submit an Amended Joint Report of the Parties and Proposed
Scheduling and Discovery Order within 21 days, or by April 26,
2023.
A full-text copy of the Court's April 4, 2023 Memorandum & Order is
available at https://tinyurl.com/48y48xmx from Leagle.com.
BLUESTEM BRANDS: Gotten Suit Transferred to D. Minnesota
--------------------------------------------------------
The case styled as Nathan Gotten, Paulette Carr, individually, and
on behalf of himself and all others similarly situated v. Bluestem
Brands, Inc., BLST Operating Company, LLC, Case No. 3:22-cv-07390
was transferred from the U.S. District Court for the Northern
District of California, to the U.S. District Court for the District
of Minnesota on April 5, 2023.
The District Court Clerk assigned Case No. 0:23-cv-00852-PAM-TNL to
the proceeding.
The lawsuit is brought over alleged violation of the Fair Credit
Reporting Act.
Bluestem Brands, Inc. -- https://www.bluestem.com/ -- retails
online products. The Company offers clothes, shoes, jeans, and
television, as well as other electronic products.[BN]
BP EXPLORATION: Bid for Summary Judgment in Pettway Suit Granted
----------------------------------------------------------------
In the case, PETTWAY v. BP EXPLORATION & PRODUCTION, INC., ET AL.
SECTION "L," Civil Action No. 17-4481 (E.D. La.), Judge Eldon E.
Fallon of the U.S. District Court for the Eastern District of
Louisiana:
a. denies the Plaintiff's Spoliation Motion;
b. grants the Defendants' Motion to Exclude the General
Causation Opinions of Plaintiff's Expert, Dr. Jerald Cook;
and
c. grants the Defendants' Motion for Summary Judgment.
The Court has before it three motions: One from the Plaintiff
seeking penalties for alleged spoliation of evidence and two from
the Defendants seeking exclusion of the Plaintiff's proffered
expert causation report and summary judgment.
The case arises out of the Deepwater Horizon oil spill that
occurred on April 20, 2010. It is one of the "B3" cases, which were
originally part of a multidistrict litigation ("MDL") pending in
another section of the Court. When that Court approved a class
action settlement agreement for many cases in the MDL, the B3
plaintiffs either opted out of the settlement or were excluded from
the class definition. Accordingly, the case and others were severed
from the MDL and reallotted to other sections of this Court. The B3
plaintiffs all make claims for personal injury and/or wrongful
death due to exposure to oil and/or other chemicals used during the
oil spill response.
The Plaintiff in the matter, Pettway, was employed in the Deepwater
Horizon oil spill response. He alleges that exposure to crude oil
and/or chemical dispersants caused him to develop a multitude of
adverse medical conditions, including rashes, skin irritation,
itching, chest pain, headaches, and eye irritation.
Three interrelated motions are pending before the Court in the
matter. To begin with, the Defendants seek exclusion of the general
causation opinions of the Plaintiff's expert, Dr. Jerald Cook,
arguing that these opinions fail to satisfy the reliability
requirements in Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579
(1993), or the Fifth Circuit's requirements for admissible
causation testimony.
The Plaintiff opposes, but also moves the Court to sanction the
Defendants for alleged spoliation of evidence by admitting Cook's
causation opinions regardless of its deficiencies. Finally, the
Defendants move for summary judgment, arguing that if the Court
grants their Daubert motion and excludes Cook's causation opinions,
the Plaintiff can put forth no evidence showing causation between
her alleged ailments and alleged exposure to chemicals as a result
of the oil spill.
Accordingly, Judge Fallon must first determine whether the
Plaintiff has successfully shown that the Defendants spoliated
evidence and, if so, whether an appropriate sanction for such
spoliation is the admission of Cook's causation opinions. If not,
he must determine whether Cook's causation opinions are excludable
under Daubert. Finally, should he rules to exclude Cook's report,
the Court must determine whether the Defendants have carried their
burden to show that summary judgment is appropriate without it.
The Plaintiff argues that the BP Defendants had a duty to preserve
(or create) quantitative exposure data by conducting biomonitoring
and/or dermal testing of workers responding to the oil spill.
Essentially, he argues that the Defendants had a duty to
affirmatively collect this data in anticipation of litigation as a
result of the oil spill, that not doing so is tantamount to
intentionally destroying relevant evidence, and that BP made the
decision not to collect this data in bad faith.
Judge Fallon holds that the Plaintiff cites no authorities for the
proposition that a party can have a duty to affirmatively develop
evidence in anticipation of litigation, nor does he point to any
statute, regulation, case law, or government directive supporting
her contention that BP had a duty to conduct biomonitoring. BP's
alleged failure to collect data that may or may not have existed is
not a failure to preserve evidence or proof of an intention to
destroy existing evidence, and as such, by definition, is not
spoliation. This principle is well illustrated. Accordingly, the
Plaintiff's Spoliation Motion is denied.
The Defendants challenge Cook's causation opinions on a number of
grounds, including Cook's failure to identify a harmful dose of
exposure to specific chemicals capable of causing Plaintiff's
alleged health conditions.
As eight other sections of the Court have already held, Judge
Fallon says this failure is fatal to the Plaintiff's argument that
Cook's is admissible evidence of general causation supporting his
claims. An expert must identify the harmful level of exposure for
each chemical and each condition. Cook's causation opinions fail to
link any specific chemical that the Plaintiff was allegedly exposed
to, at any level to which he could have exposed, to the conditions
that the Plaintiff alleges that he suffered as a result of exposure
after the oil spill.
Accordingly, Cook's causation opinions fail to meet the
requirements of Rule 702 for admissible expert causation evidence
in a toxic tort case. The Defendants' Daubert Motion to exclude
Cook's causation opinions is therefore granted.
Finally, the Defendants move for summary judgment, arguing that
with the exclusion of Cook's causation opinions, the Plaintiff
lacks any admissible expert evidence of general causation.
Where a plaintiff lacks this necessary expert evidence, dismissal
at the summary judgment stage is appropriate. With Judge Fallon
having granted the Defendants' Daubert motion, the Plaintiff lacks
any general causation evidence to support his claims. Accordingly,
the Plaintiff cannot prove an essential element of his claims. His
claims must fail, and summary judgment in favor of the Defendants
is appropriate. The Defendants' Motion for Summary Judgment is,
thus, granted.
A full-text copy of the Court's March 31, 2023 Order & Reasons is
available at https://tinyurl.com/yc3c8haf from Leagle.com.
BP EXPLORATION: Bid for Summary Judgment in Williams Suit Granted
-----------------------------------------------------------------
In the case, WILLIAMS v. BP EXPLORATION & PRODUCTION, INC., ET AL.,
Section "L," Civil Action No. 17-4307 (E.D. La.), Judge Eldon E.
Fallon of the U.S. District Court for the Eastern District of
Louisiana:
a. denies the Plaintiff's Spoliation Motion;
b. grants the Defendants' Motion to Exclude the General
Causation Opinions of Plaintiff's Expert, Dr. Jerald Cook;
and
c. grants the Defendants' Motion for Summary Judgment.
The case arises out of the Deepwater Horizon oil spill that
occurred on April 20, 2010. It is one of the "B3" cases, which were
originally part of a multidistrict litigation ("MDL") pending in
another section of this Court. When that Court approved a class
action settlement agreement for many cases in the MDL, the B3
plaintiffs either opted out of the settlement or were excluded from
the class definition. Accordingly, this case and others were
severed from the MDL and reallotted to other sections of this
Court. The B3 plaintiffs all make claims for personal injury and/or
wrongful death due to exposure to oil and/or other chemicals used
during the oil spill response.
The Plaintiff in the matter, Williams, was employed in the
Deepwater Horizon oil spill response. Williams alleges that
exposure to crude oil and/or chemical dispersants caused her to
develop a multitude of adverse medical conditions, including
abdominal pain, nausea, vomiting, diarrhea, dizziness, headaches,
facial pain/sinus pain, eye burning, eye irritation, swollen eye,
rashes, skin irritation, and depression.
Three interrelated motions are pending before the Court. To begin
with, the Defendants seek exclusion of the general causation
opinions of the Plaintiff's expert, Dr. Jerald Cook, arguing that
these opinions fail to satisfy the reliability requirements in
Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993), or the
Fifth Circuit's requirements for admissible causation testimony.
The Plaintiff opposes, but also moves the Court to sanction the
Defendants for alleged spoliation of evidence by admitting Cook's
causation opinions regardless of its deficiencies. Finally, the
Defendants move for summary judgment, arguing that if the Court
grants their Daubert motion and excludes Cook's causation opinions,
the Plaintiff can put forth no evidence showing causation between
her alleged ailments and alleged exposure to chemicals as a result
of the oil spill.
Accordingly, Judge Fallon must first determine whether the
Plaintiff has successfully shown that the Defendants spoliated
evidence and, if so, whether an appropriate sanction for such
spoliation is the admission of Cook's causation opinions. If not,
he must determine whether Cook's causation opinions are excludable
under Daubert. Finally, should he rule to exclude Cook's report, he
must determine whether the Defendants have carried their burden to
show that summary judgment is appropriate without it.
The Plaintiff argues that the BP Defendants had a duty to preserve
(or create) quantitative exposure data by conducting biomonitoring
and/or dermal testing of workers responding to the oil spill.
Essentially, he argues that the Defendants had a duty to
affirmatively collect this data in anticipation of litigation as a
result of the oil spill, that not doing so is tantamount to
intentionally destroying relevant evidence, and that BP made the
decision not to collect this data in bad faith.
Judge Fallon holds that the Plaintiff cites no authorities for the
proposition that a party can have a duty to affirmatively develop
evidence in anticipation of litigation, nor does he point to any
statute, regulation, case law, or government directive supporting
her contention that BP had a duty to conduct biomonitoring. BP's
alleged failure to collect data that may or may not have existed is
not a failure to preserve evidence or proof of an intention to
destroy existing evidence, and as such, by definition, is not
spoliation. This principle is well illustrated. Accordingly, the
Plaintiff's Spoliation Motion is denied.
The Defendants challenge Cook's causation opinions on a number of
grounds, including Cook's failure to identify a harmful dose of
exposure to specific chemicals capable of causing Plaintiff's
alleged health conditions.
As eight other sections of the Court have already held, Judge
Fallon says this failure is fatal to the Plaintiff's argument that
Cook's is admissible evidence of general causation supporting her
claims. An expert must identify the harmful level of exposure for
each chemical and each condition. Cook's causation opinions fail to
link any specific chemical that the Plaintiff was allegedly exposed
to, at any level to which she could have exposed, to the conditions
that the Plaintiff alleges that he suffered as a result of exposure
after the oil spill.
Accordingly, Cook's causation opinions fail to meet the
requirements of Rule 702 for admissible expert causation evidence
in a toxic tort case. The Defendants' Daubert Motion to exclude
Cook's causation opinions is therefore granted.
Finally, the Defendants move for summary judgment, arguing that
with the exclusion of Cook's causation opinions, the Plaintiff
lacks any admissible expert evidence of general causation.
Where a plaintiff lacks this necessary expert evidence, dismissal
at the summary judgment stage is appropriate. With Judge Fallon
having granted the Defendants' Daubert motion, the Plaintiff lacks
any general causation evidence to support her claims. Accordingly,
the Plaintiff cannot prove an essential element of her claims. Her
claims must fail, and summary judgment in favor of the Defendants
is appropriate. The Defendants' Motion for Summary Judgment is,
thus, granted.
A full-text copy of the Court's March 31, 2023 Order & Reasons is
available at https://tinyurl.com/34hucrzv from Leagle.com.
BP EXPLORATION: Summary Judgment Bid Granted; Duke Case Dismissed
-----------------------------------------------------------------
In the case, TIFFANY DUKE v. BP EXPLORATION & PRODUCTION INC., et
al., SECTION: "T"(5), Civil Action No. 16-13873 (E.D. La.), Judge
Greg Gerard Guidry of the U.S. District Court for the Eastern
District of Louisiana:
a. grants in part and denies in part the Defendants' Motion to
Exclude the Causation Opinions of Dr. Michael Meshad;
b. grants the Defendants' Motion to Exclude the Causation
Opinions of Kathleen Burns, Ph.D; and
c. grants the Defendants' Motion for Summary Judgment.
Before the Court are three motions filed by Defendants BP
Exploration & Production Inc. and BP America Production Co.
(collectively "BP"), namely two Daubert Motions to Exclude the
Causation Testimony of Plaintiff's Experts, Dr. Kathleen Burns and
Dr. Michael Meshad and a Motion for Summary Judgment. Plaintiff
Vernon Baggett filed a response to each motion.
In 2010, the Deepwater Horizon oil rig exploded, causing a massive
oil spill in the Gulf of Mexico. Following the incident, hundreds
of individuals brought claims for personal injury and wrongful
death due to exposure to oil and/or other chemicals used during the
oil spill response (e.g., dispersant). Originally, these matters
were part of a multidistrict litigation. However, after the Court
approved the Deepwater Horizon Medical Benefits Class Action
Settlement Agreement, many individuals, known as "B3 plaintiffs,"
either opted out of the class action settlement agreement or were
excluded from its class definition.
Now, those plaintiffs have brought suit individually. To recover
outside of the settlement framework, B3 plaintiffs must prove that
the legal cause of their claimed injury or illness is exposure to
oil or other chemicals used during the response. This requires an
individualized inquiry and is typically the make-or-break issue of
many B3 cases.
Plaintiff Duke, one of the B3 plaintiffs, unlike other B3
plaintiffs was not employed in the oil spill response. Instead, Ms.
Duke avers exposure to toxic hydrocarbons while living in Orange
Beach, Alabama. She maintains that the exposure caused a recurrence
of her pre-existing porphyria cutanea tarda (PCT), a rare skin
condition, she maintains was in remission from 2007 until the
summer of 2010 following the oil spill.
To prove her injuries were caused by exposure to contaminants from
the spill, Ms. Duke relies on the expert testimony of Dr. Kathleen
Burns and Dr. Michael Meshad. Burns is proffered as an expert in
toxicology and epidemiology to offer an opinion as to general
causation. She earned her Ph.D. in Public Health from the
University of Illinois Medical Center in Chicago.
Burns has worked as a toxicologist for over 35 years and has
published books on toxicology and risk assessment. She issued a
report in this case evaluating a potential relationship between
exposure to chemical in crude oil contaminated air and other media
as a result of the crude oil spill from the Macondo Well in the
Gulf of Mexico on April 20, 2010 and the exacerbation of porphyria
cutanea tara (PCT). Absent from Burns' report is any mention of a
particular plaintiff. Her report also does not identify a harmful
level of exposure to a particular chemical necessary to cause the
complained of health effects of Ms. Duke.
Dr. Meshad is Ms. Duke's former treating physician. He did not
issue an expert report, but per Ms. Duke's expert disclosures, Dr.
Meshad plans to offer an opinion as to specific causation. He is a
physician at the Southern Cancer Center in Daphne, Alabama who
treated Ms. Duke in 2010. The expert disclosure states Dr. Meshad
will testify that the Plaintiff suffered a severe recurrence of PCT
in the summer of 2010 as a result of her proximity to hydrocarbons
from the BP Oil Spill that were in and around the vicinity of where
Plaintiff lived. In addition to the expert disclosure per Federal
Rules of Civil Procedure Rule 26, two letters penned by Dr. Meshad
in 2010 are offered as a discussion of Dr. Meshad's causation
opinion. Neither letter causally relates Ms. Duke's PCT recurrence
to hydrocarbon exposure, but rather that the recurrence "coincided"
with exposure to such hydrocarbons.
In the present motions, BP asks the Court to exclude the testimony
of Drs. Burns and Meshad and, due to the lack of causation
evidence, dismiss Ms. Duke's claims.
As a preliminary matter, Judge Guidry addresses the Motion to
Extend Submission Date and Motion for Expedited Hearing filed by
the Plaintiff. Both motions were filed in June 2022 seeking an
extension of submission date for the Defendants' Daubert motions
and summary judgment motions from July 6, 2022, to July 20, 2022.
Since the filing of these motions, the Court continued the trial in
the matter without date pending consideration of the Defendants'
motions. While the Plaintiff's motions were not ruled on before the
proposed submission date, the Plaintiff has not sought leave to
file supplemental oppositions to any of the Defendants' Daubert or
summary judgment motions in the seven months since the Motion to
Extend was filed.
Judge Guidry considers the opposition the Plaintiff had already
filed in response to the Defendants' motions in his ruling on said
motions. Without any evidence on the record to show that the
Plaintiff was deprived of, or sought and was denied leave to file,
a supplemental opposition to the Defendants' motions, he denies as
moot the Plaintiff's Motion to Extend Submission Date and Motion
for Expedited Hearing.
Turning to Dr. Meshad's testimony, the Defendants move to exclude
his expert opinion and limit his testimony to that of a treating
physician and not as to specific causation based on the form of his
expert disclosure, lack of report, and failure to comply with the
standards necessary to survive a Daubert challenge. In opposition,
Ms. Duke argues Dr. Meshad's disclosure is appropriate under the
Federal Rules of Civil Procedure as a non-retained expert and will
only testify as to facts he personally observed during treatment.
Judge Guidry holds that treating physicians who opine as to
causation are required to comply with Rule 26(a)(2)(B). Without
such disclosure, the purported expert will be limited in their
testimony to only that which is contained in their records as a
treating physician. Dr. Meshad's Rule 26(a)(2)(C) disclosure, as
submitted by Ms. Duke, reflects his intent to opine as to specific
causation.
Even if read under the lense of the appropriate disclosure for such
causation experts, Judge Guidry says Dr. Meshad's disclosure fails
to meet the Daubert standard. All of the omissions preclude Dr.
Meshad from testifying as an expert with regard to specific
causation, and he will be precluded from testifying in that
capacity. Instead, Dr. Meshad will be limited in his testimony to
his records and observances during his treatment of Ms. Duke.
Accordingly, the Motion in Limine is granted in part and denied in
part.
As for Dr. Burns, Dr. Burns was retained to examine a potential
relationship between exposure to chemicals in crude oil and
exacerbation of PCT. In addition to several other areas of
purported deficiency, the Defendants argue that Dr. Burns' failure
to identify a level of exposure to hydrocarbons that would
exacerbate or cause Ms. Duke's condition.
Judge Guidry finds that Dr. Burns' report fails to establish the
minimal fact necessary to carry Ms. Duke's burden in this toxic
tort case because it fails to identify a harmful level of exposure
to hydrocarbons to cause her health condition to recur. Absent such
information, her opinion cannot pass muster under Fifth Circuit
precedent. Accordingly, the motion to exclude Dr. Burns' general
causation opinion is granted.
Finally, the exclusion of Dr. Burns' report and limitation of Dr.
Meshad's testimony leaves Ms. Duke with no evidence to support her
general or specific causation argument. Consequently, Ms. Duke
cannot point to a genuine issue of material fact regarding the
cause of her injuries. Accordingly, the Motion for Summary Judgment
is granted.
In light of the foregoing, the Plaintiff's Motion to Extend
Submission Deadlines and Motion to Expedite Hearing is denied as
moot; and all of the Plaintiff's claims against BP are dismissed
with prejudice.
A full-text copy of the Court's March 31, 2023 Order & Reasons is
available at https://tinyurl.com/ykea5wky from Leagle.com.
BURGERFI INTERNATIONAL: Bids for Lead Plaintiff Naming Due June 5
-----------------------------------------------------------------
Pomerantz LLP of GlobeNewsWire reports that a class action lawsuit
has been filed against BurgerFi International, Inc. ("BurgerFi" or
the "Company") f/k/a Opes Acquisition Corp. ("OPES") (NASDAQ: BFI;
BFIIW; OPESU; OPES; OPESW), and certain officers. The class action,
filed in the United States District Court for the Southern District
of Florida, and docketed under 23-cv-60657, is on behalf of a class
consisting of all persons and entities other than Defendants that
purchased or otherwise acquired BurgerFi securities between
December 17, 2020 and November 15, 2022, both dates inclusive (the
"Class Period"), seeking to recover damages caused by Defendants'
violations of the federal securities laws and to pursue remedies
under Sections 10(b) and 20(a) of the Securities Exchange Act of
1934 (the "Exchange Act") and Rule 10b-5 promulgated thereunder,
against the Company and certain of its top officials.
If you are a shareholder who purchased or otherwise acquired
BurgerFi securities during the Class Period, you have until June 5,
2023 to ask the Court to appoint you as Lead Plaintiff for the
class. A copy of the Complaint can be obtained at
www.pomerantzlaw.com. To discuss this action, contact Robert S.
Willoughby at newaction@pomlaw.com or 888.476.6529 (or
888.4-POMLAW), toll-free, Ext. 7980. Those who inquire by e-mail
are encouraged to include their mailing address, telephone number,
and the number of shares purchased.
BurgerFi previously operated as a blank-check company, also
referred to as a special purpose acquisition company, which is a
development stage company formed for the purpose of entering into a
merger, share exchange, asset acquisition, stock purchase,
recapitalization, reorganization or other similar business
transaction with one or more operating businesses or entities.
On December 17, 2020, the Company announced that it had completed a
business combination with BurgerFi International, LLC ("Legacy
BurgerFi"), a private Delaware limited liability company touted as
"one of the nation's fastest-growing better burger concepts" (the
"Business Combination"). As a result of the Business Combination,
among other things, the Company purchased 100% of the membership
interests of Legacy BurgerFi, resulting in Legacy BurgerFi becoming
a wholly owned subsidiary of the Company, and the Company changed
its name to "BurgerFi International, Inc."
Following the Business Combination, the Company, together with its
subsidiaries, has owned and franchised fast-casual and
premium-casual dining restaurants.
On November 4, 2021, the Company completed its acquisition of
Anthony's Coal Fired Pizza & Wings ("Anthony's") for $156.6 million
(the "Anthony's Acquisition"). Defendant Ophir Sternberg, Executive
Chairman of the Company, touted the Anthony's Acquisition as "a
significant step forward in BurgerFi's ongoing growth strategy and
transition into a premium multibrand platform. "
The complaint alleges that throughout the Class Period, Defendants
made materially false and misleading statements regarding the
Company's business, operations, and prospects. Specifically,
Defendants made false and/or misleading statements and/or failed to
disclose that: (i) the Company had overstated the effectiveness of
its acquisition and growth strategies; (ii) the Company had
misrepresented to investors the purported benefits of Anthony's
Acquisition and its post-Business Combination business and
financial prospects; and (iii) as a result, the Company's public
statements were materially false and misleading at all relevant
times.
On August 11, 2022, during pre-market hours, BurgerFi issued a
press release announcing the Company's second quarter ("Q2") 2022
results. Among other results, that press release reported Q2
revenue of $45.3 million, missing consensus estimates by $2.28
million. The Company also disclosed that "[n]et loss in the second
quarter was $60.4 million compared to a net income of $9.0 million
in the year-ago quarter[,]" which "[wa]s primarily the result of
goodwill impairment charges of $55.2 million in relation to
BurgerFi and Anthony's coupled with higher depreciation,
amortization of intangibles, share-based compensation, interest
expense resulting from the acquisition-related debt" (emphases in
original).
On this news, BurgerFi's stock price fell $0.10 per share, or
3.03%, to close at $3.20 per share on August 11, 2022.
Then, on November 16, 2022, during pre-market hours, BurgerFi
issued a press release announcing the Company's third quarter
("Q3") 2022 results. Among other results, that press release
reported Q3 revenue of $43.3 million, missing consensus estimates
by $0.84 million, explaining that "[f]or the BurgerFi brand,
same-store sales decreased 11% and 6% in corporate-owned and
franchised locations, respectively" (emphases in original).
On this news, BurgerFi's stock price fell $0.24 per share, or
10.57%, to close at $2.03 per share on November 16, 2022.
Pomerantz LLP, with offices in New York, Chicago, Los Angeles,
London, Paris, and Tel Aviv, is acknowledged as one of the premier
firms in the areas of corporate, securities, and antitrust class
litigation. Founded by the late Abraham L. Pomerantz, known as the
dean of the class action bar, Pomerantz pioneered the field of
securities class actions. On April 5, 2023, more than 85 years
later, Pomerantz continues in the tradition he established,
fighting for the rights of the victims of securities fraud,
breaches of fiduciary duty, and corporate misconduct. The Firm has
recovered numerous multimillion-dollar damages awards on behalf of
class members. See www.pomlaw.com.
CONTACT:
Robert S. Willoughby
Pomerantz LLP
rswilloughby@pomlaw.com
888-476-6529 ext. 7980 [GN]
CENTENE CORP: Court Dismisses Williams' Amended ERISA Complaint
---------------------------------------------------------------
In the case, RUTH WILLIAMS, et al., Plaintiffs v. CENTENE
CORPORATION, et al., Defendants, Case No. 4:22-cv-00216-SEP (E.D.
Mo.), Judge Sarah E. Pitlyk of the U.S. District Court for the
Eastern District of Missouri, Eastern Division, grants:
a. the Defendants' Motion to Dismiss Plaintiffs' Amended
Complaint under Rule 12(b)(6) of the Federal Rules of Civil
Procedure; and
b. the United States Chamber of Commerce's Motion for Leave to
Participate as Amicus Curiae.
The Employee Retirement Income Security Act of 1974 (ERISA) imposes
a duty of loyalty on fiduciaries of certain investment plans.
Plaintiffs Ruth Williams, Tovah Allen, Carolyn Ross, Alicia Bates,
and Tracy Young participated in one such plan through their
employer, Centene. They filed the class-action lawsuit against
Defendants Centene, the Board of Directors of Centene Corporation,
the Centene Corporation Retirement Plan Investment Committee, and
John Does 1-30 (the unnamed members of the committee and the board,
and any other unknown fiduciaries), alleging that the Defendants
breached their fiduciary duties under the Act.
Centene is the sponsor for the Centene Management Corporation
Retirement Plan, a defined contribution or individual account plan
within the meaning of ERISA, 29 U.S.C. Section 1002(34), which
provides investment funds for participating employees. Centene and
its board appointed an investment committee to manage the
investments under the Plan and prices for recordkeeping and
administrative services. Strategic Advisers, Inc., runs the Plant's
managed account service, and Fidelity Management Trust Co., keeps
records for the Plan. As of 2020, the Plan had over 63,000
participants and over $3.1 billion dollars in assets under
management. The Plaintiffs all participated in the Plan during
their employment with Centene.
In their first claim for relief, the Plaintiffs allege that the
investment committee breached its fiduciary duty of prudence, and
in their second, that Centene and its board failed to adequately
monitor the investment committee. In support of their first claim,
the Plaintiff allege that the Defendants imprudently maintained
funds with excessive expense ratios, imprudently allowed the plan's
"total plan cost" to balloon, imprudently failed to control the
Plan's recordkeeping fees and administrative costs, and imprudently
maintained underperforming investment options in the Plan.
In support of their allegation that the Defendants maintained funds
with excessive expense ratios, the Plaintiffs allege that 11 of the
plan's funds have expense ratios that substantially exceed the "ICI
Median" and "ICI Average." ICI appears to stand for Investment
Company Institute. The Plaintiffs assert that ICI developed a total
plan cost measure that includes all fees on the audited Form 5500
reports as well as fees paid through investment expense ratios. The
Institute allegedly determined that, for a Plan with assets in
excess of a billion dollars, the average asset weighted total plan
cost is 0.22% of total plan assets. The Plaintiffs allege that an
indication that the Plan was poorly run and lacked a prudent
process for selecting and monitoring the Plan's investments is that
it had a total plan cost of more than 0.46%, which is more than
109% higher than the average.
The Plaintiffs also allege that the Plan's "excessive"
recordkeeping and administrative costs were indicative of imprudent
fee monitoring. In support, they point to the Defendants' use of
revenue sharing, a practice by which Plan recordkeeping expenses
are paid indirectly by the Plan's investments. They allege there is
little to suggest that the Defendants conduct an appropriate RFP at
reasonable intervals" in order to shop around for lower fees. They
also point to a stipulation entered into by Fidelity in another
case as evidence that the Centene Plan fiduciaries should not have
been paying more than $21 per participant in recordkeeping and
administration fees. And finally, the Plaintiffs compare Centene's
alleged fees per participant with several comparator plans that
allegedly enjoyed lower fees per participant.
Finally, the Amended Complaint alleges that the investment
committee should have replaced several funds in the Plan because
they underperformed. The Plaintiffs identify eight underperforming
funds and compare them with other funds that were cheaper and
performed better. They provide no information regarding any of the
funds' holdings, investment style, or strategy, but they do allege
that the challenged and comparator funds are in the same investment
style.
In support of their second claim, that Centene and its board failed
to adequately monitor the investment committee, the Plaintiffs
allege that Centene and its board breached their duty to monitor
the investment committee and the processes by which Plan
investments were evaluated. As a result of their failure to
monitor, they contend, the Plan sustained millions of dollars of
losses.
In response to the Amended Complaint, Defendants filed their Motion
to Dismiss, arguing that, even if true, the Plaintiffs' allegations
fail to state a claim.
The Defendants argue that none of the Plaintiffs' theories -- that
the Defendants imprudently maintained funds with excessive expense
ratios, imprudently allowed the Plan's "total plan cost" to
balloon, imprudently failed to control the Plan's recordkeeping
fees and administrative costs, and imprudently maintained
underperforming investment options in the Plan -- adequately
supports their breach-of-fiduciary-duty claim.
Judge Pitlyk agrees. He holds that (i) the Amended Complaint fails
to state a breach-of-fiduciary-duty claim under an
excessive-investment-fees theory; (ii) considering the Complaint in
its entirety, the Plaintiffs fail to state a
breach-of-fiduciary-duty claim under a total-plan-cost theory;
(iii) the Plaintiffs do not state a breach-of-fiduciary-duty claim
under an excessive-fees theory because accepting all factual
allegations as true, he still may not draw the reasonable inference
that the investment committee allowed the Plaintiffs to pay
excessive fees; and (iv) the Plaintiffs do not state a
breach-of-fiduciary-duty claim under the theory that Centene
retained underperforming funds because their allegations do not
provide a meaningful benchmark on the basis of which the Court
could evaluate the plausibility of their claim.
The Defendants move to dismiss the Plaintiff's failure-to-monitor
claim against Centene and its board because that claim is
derivative and fails because the Plaintiffs have not pled an
underlying breach of fiduciary duty. The Plaintiffs' only argument
against dismissal presumes that they state a
breach-of-fiduciary-duty claim against the investment committee.
Because they fail to state such a claim, the failure-to-monitor
claim is dismissed.
For the foregoing reasons, Judge Pitlyk concludes that the Amended
Complaint fails to state a claim. Accordingly, he grants the United
States Chamber of Commerce's Motion for Leave to Participate as
Amicus Curiae and the Defendant's Motion to Dismiss. A separate
order of dismissal accompanies the Memorandum and Order.
A full-text copy of the Court's March 31, 2023 Memorandum & Order
is available at https://tinyurl.com/ta95wm4j from Leagle.com.
CHIVE MEDIA GROUP: Roland Suit Transferred to W.D. Texas
--------------------------------------------------------
The case styled as Gregory Roland, Individually and on behalf of
himself and all others similarly situated v. Chive Media Group,
LLC, Case No. 1:23-cv-00337 was transferred from the U.S. District
Court for the Northern District of Illinois, to the U.S. District
Court for the Western District of Texas on April 5, 2023.
The District Court Clerk assigned Case No. 1:23-cv-00389 to the
proceeding.
The nature of suit is stated as Other Fraud.
Chive Media Group -- https://www.chivemediagroup.com/ -- is a
multi-platform digital media and eCommerce company.[BN]
The Plaintiff is represented by:
Andrew John Shamis, Esq.
SHAMIS & GENTILE, PA
14 NE 1st Ave., Suite 705
Miami, FL 33132
Phone: (305) 479-2299
Fax: (786) 623-0915
Email: ashamis@sflinjuryattorneys.com
The Defendants are represented by:
Kevin M. Cloutier, Esq.
SHEPPARD MULLIN RICHTER & HAMPTON LLP
321 North Clark Street, Ste. 32nd Floor
Chicago, IL 60654
Phone: (312) 499-6300
Fax: (312) 499-6301
Email: kcloutier@sheppardmullin.com
- and -
David Mitchell Poell, Esq.
SHEPPARD, MULLIN, RICHTER & HAMPTON, LLP
70 West Madison Street, Suite 4800
Chicago, IL 60602
Phone: (312) 499-6300
CHRISTIAN DIOR: Court Ruled VTO Exempt Under BIPA's Healthcare
--------------------------------------------------------------
Anne E. Larson of OgleTree Deakins reports that a federal judge in
Illinois recently ruled that online shoppers cannot sustain claims
that a virtual try-on (VTO) tool that allegedly scans facial
geometry to preview the look of sunglasses on their face violates
the Biometric Information Privacy Act (BIPA or Privacy Act) because
it falls into an exemption for "information captured from a patient
in a health care setting."
On February 10, 2023, U.S. District Judge Elaine Bucklo ruled in
Warmack-Stillwell v. Christian Dior, Inc. that whether or not a
consumer is using VTO tools for styling purposes, the Privacy Act's
"healthcare exemption" applies to the use of such tools to shop for
sunglasses because sunglasses are medical devices that protect eyes
from the sun.
The decision is at least the third federal court decision in recent
years to dismiss claims under the Privacy Act -- which regulates a
private entity's collection, use, storage, transmission, and
destruction of "biometric identifier" and "biometric information"
-- that concern virtual try-on technology commonly used by online
eyewear sellers under the Privacy's Act's healthcare exemption.
Background
An online shopper filed a putative BIPA class action against
fashion company Christian Dior over its alleged use of a VTO tool
on its website that allowed online consumers to see how sunglasses
would look on their faces. The VTO tool allegedly used a
third-party application that scanned consumers' facial geometry and
purportedly sent that information to a server where it was stored
some amount of time.
The consumer alleged violations of the Privacy Act's provisions
that require an entity that collects biometric information,
including a "scan of . . . face geometry," to make publicly
available a written policy for the retention and destruction of
such data, obtain informed consent before capturing such data, and
not profit from that data.
Healthcare Exemption
Judge Bucklo rejected the argument that the claims lacked
subject-matter jurisdiction, but agreed with Christian Dior that
the claims fell within the Privacy Act's healthcare exemption. The
act excludes "information captured from a patient in a health care
setting" from the definitions of "biometric identifier" and
"biometric information."
The judge stated that "sunglasses, even if non-prescription,
protect one's eyes from the sun and are Class I medical devices
under the Food & Drug Administration's regulations." Further, the
judge stated that even if users may be "surprised" to learn that
shopping for sunglasses online is a healthcare setting, the
"relevant test" is not whether they subjectively understand but
whether the test is an "objective application of the text of the
exemption." This is true regardless of "whether a consumer uses the
[virtual try-on tool] in search of sunglasses mainly for style" or
if it is used "to purchase sunglasses as protection from the sun's
rays."
The judge further held that the exemption applied even though she
only sought to purchase nonprescription sunglasses, not
prescription sunglasses or eyeglasses. The judge stated that prior
cases looking at VTO tools to sell eyewear, which involved
companies that sold prescription and nonprescription products, had
"recognized that the virtual try-on tools were also used for
non-prescription sunglasses."
Bodily Fluids Donation Cases
Notably, Judge Bucklo further distinguished the virtual try-on
eyewear cases from cases that have found that the healthcare
exemption was inapplicable to other Privacy Act claims involving
situations where individuals involved were donating bodily fluids
for compensation. In those cases, courts have concluded that any
biometric information allegedly collected was in relation to the
sale of their fluids. Judge Bucklo stated that "the purpose -- at
least from the donors' perspectives -- was not" to seek healthcare
but "to get paid," whereas in eyewear cases consumers are seeking
"to protect their physical health."
While those distinguished cases may have applied the healthcare
exemption too narrowly as a donor plainly undergoes a healthcare
procedure which may benefit his or her "emotional well-being," the
distinction made by Judge Bucklo is significant. The distinction
shows that claims over virtual try-on tools in the eyewear context
are clearly covered by the healthcare exemption as such claims
involve the collection of consumers' facial geometry in order to
fit medical devices in the form of eyewear to the consumers' faces
and the "patients" are not paid directly.
Key Takeaways
The Christian Dior case reinforces the applicability of the Privacy
Act's healthcare exemption to data collected from online tools that
allow shoppers to virtually try on both prescription and
nonprescription eye glasses and sunglasses. The ruling is further
significant as it suggests that similar online tools that collect
biometric information from shoppers for other health and wellness
products might also fit into the exemption.
Ogletree Deakins will continue to monitor and report on
developments with respect to the Privacy Act cases before the
Supreme Court of Illinois and will post updates on the firm's Class
Action, Cybersecurity and Privacy, Illinois, Retail, and Technology
blogs. Important information for employers is also available via
the firm's webinar and podcast programs. [GN]
CIGNA HEALTH: Faces Suit Over Insurance Benefit Denial
------------------------------------------------------
S.F., and E.F., on behalf of themselves and the similarly situated
class of individuals, Plaintiffs v. CIGNA HEALTH and LIFE INSURANCE
COMPANY, CIGNA BEHAVIORAL HEALTH, the SLALOM LLC HEALTHCARE BENEFIT
PLAN, and DOES 1-1000, Defendants, Case No. 2:23-cv-213 (D. Utah,
March 31, 2023) alleges that the Defendants violated the Employee
Retirement Income Security Act of 1974 (ERISA) and the Mental
Health Parity and Addiction Equity Act (MHPAEA).
The Plaintiffs challenge Cigna's improper behavior as insurer and
administrator of ERISA health benefit plans in categorically
denying coverage for treatment of mental health and substance use
disorders provided in State of Utah Health and Human Services
licensed "Outdoor Youth Programs" (OYP). In denying coverage for
OYP, Cigna breaches the terms of the ERISA plan documents under
which it acts as an insurer or administrator because it wrongly
denies access to coverage for medically necessary services in
violation of ERISA. Cigna's exclusion of OYP also violates the
MHPAEA because it imposes more restrictive treatment limitations on
benefits for mental health and substance use disorders than it
imposes on analogous levels of care for medical and surgical
conditions, says the suit.
Cigna is an insurance company headquartered in Bloomfield, CT. It
provides claims administration services and group health insurance
to thousands of welfare benefit plans sponsored by employers
nationwide. [BN]
The Plaintiffs are represented by:
Brian S. King, Esq.
Brent J. Newton, Esq.
Samuel M. Hall, Esq.
BRIAN S. KING, P.C.
420 East South Temple, Suite 420
Salt Lake City, UT 84111
Telephone: (801) 532-1739
Facsimile: (801) 532-1936
E-mail: brian@briansking.com
brent@briansking.com
samuel@briansking.com
- and -
Sean K. Collins, Esq.
LAW OFFICES OF SEAN K. COLLINS
184 High Street, Suite 503
Boston, MA 02110
Telephone: (855) 693-9256
Facsimile: (617) 227-2843
E-mail: sean@neinsurancelaw.com
- and -
Ex Kano S. Sams II, Esq.
GLANCY PRONGAY & MURRAY LLP
1925 Century Park East, Suite 2100
Los Angeles, CA 90067
Telephone: (310) 201-9150
Facsimile: (310) 201-9160
E-mail: esams@glancylaw.com
- and -
Mala M. Rafik, Esq.
ROSENFELD & RAFIK, P.C.
184 High Street, Suite 503
Boston, MA 02110
Telephone: (617)723-7470
Facsimile: (617) 227-2843
E-mail: mmr@rosenfeld.com
CONTINUING CARE: Agrees to Settle Illegal Fees' Suit for $1-Mil.
----------------------------------------------------------------
Top Class Actions reports that Continuing Care Management, Salmon
Health and Retirement and other related companies agreed to pay $1
million to resolve claims that assisted-living residents were
charged illegal fees.
The settlement benefits individuals living in Massachusetts
assisted-living residences managed by Salmon Health who paid a
community fee and/or a last month's charges fee.
According to the class action lawsuit, Salmon Health charged
unlawful community fees and last month's charges fees before
residents lived at the facilities. These fees allegedly violated
Massachusetts state laws regarding security deposits.
Salmon Health is an assisted-living facility manager that operates
six residences in Massachusetts cities such as Natick and
Worcester.
The defendants in the case haven't admitted any wrongdoing but
agreed to a $1 million class action settlement to resolve the
allegations.
Under the terms of the Salmon Health settlement, class members can
receive a proportional share of the net settlement fund based on
the amount they paid in community fees or last month's charges
fees. Exact payment amounts will vary depending on the number of
participating class members.
Residual funds from the settlement will be used for a second round
of payments. If these funds remain unclaimed after 90 days, the
money will be donated to the Massachusetts IOLTA Committee.
Class members have 45 days after the notice date to submit a
request for exclusion or objection.
The final approval hearing for the settlement is scheduled for May
9, 2023.
In order to receive a settlement payment, class members must submit
a valid claim form within 28 days of the final approval date --
estimated to be June 6, 2023, based on the scheduled final approval
hearing.
Who's Eligible
Individuals living in Massachusetts assisted-living residences
managed by Salmon Health who paid a community fee and/or a last
month's charges fee.
Potential Award
Varies
Proof of Purchase
N/A
Claim Form Deadline
06/06/2023 (estimated)
Case Name
Burman, et al. v. Continuing Care Management LLC, et al., Case No.
2085-CV-00971, in the Massachusetts Superior Court for Worcester
County.
Final Hearing
05/09/2023
Settlement Website
SalmonHealthALRSettlement.com
Claims Administrator
Salmon Health ALR Settlement Program
BrownGreer PLC
P.O. Box 25277
Richmond, VA 23260
Questions@SalmonHealthALRSettlement.com
833-520-3800
Class Counsel
FORREST MAZOW MCCULLOUGH YASI AND YASI PC
Defense Counsel
Louis Ciavarra
BOWDITCH & DEWEY LLP [GN]
COOPER'S HAWK: Fails to Pay Proper Wages, Burns Suit Alleges
------------------------------------------------------------
CARDAEJA BURNS, individually and on behalf of all others similarly
situated, Plaintiffs v. COOPER'S HAWK INTERMEDIATE HOLDING, LLC,
Defendant, Case No. 1:23-cv-02162 (N.D. Ill., April 5, 2023) seeks
to recover from the Defendants unpaid wages and overtime
compensation, interest, liquidated damages, attorneys' fees, and
costs under the Fair Labor Standards Act.
Plaintiff Burns was employed by the Defendants as a server.
Defendant owns and operates a chain of Coopers Hawk restaurants in
Oak Park, Illinois. [BN]
The Plaintiff is represented by:
Michael L. Fradin, Esq.
FRADIN LAW, LLC
8 N. Court St., Suite 403
Athens, OH 45701
Telephone: (847) 986-5889
Facsimile: (847) 673-1228
Email: mike@fradinlaw.com
-and -
James L. Simon, Esq.
SIMON LAW CO.
5000 Rockside Road
Liberty Plaza Building – Suite 520
Independence, OH 44131
Telephone: (216) 816-8696
Email: james@simonsayspay.com
CVS HEALTH: Fails to Pay Proper Wages, Benton Suit Alleges
----------------------------------------------------------
TRULY BENTON; and SHEVONE LEWIS, individually and on behalf of all
others similarly situated, Plaintiffs v. CVS HEALTH CORPORATION,
Defendant, Case No. 1:23-cv-00394-UNA (D. Del., April 6, 2023)
seeks to recover from the Defendant unpaid wages and overtime
compensation, interest, liquidated damages, attorneys' fees, and
costs under the Fair Labor Standards Act.
The Plaintiffs were employed by the Defendant as nurses.
CVS HEALTH CORPORATION provides health care and retail pharmacy
services. The Company offers prescription medications, beauty,
personal care, cosmetics, and health care products, as well as
pharmacy benefit management (PBM), disease management, and
administrative services. CVS Health operates in the United States
and Puerto Rico. [BN]
The Plaintiffs are represented by:
William J. Rhodunda, Jr., Esq.
Chandra J. Williams, Esq.
RHODUNDA WILLIAMS &
KONDRASCHOW, LLC
1521 Concord Pike, Suite 205
Wilmington, DE 19803
Telephone: (302) 576-2000
Facsimile: (302) 576-2004
Email: bill@rawlaw.com
chandra@rawlaw.com
- and -
Shanon J. Carson, Esq.
Camille Fundora Rodriguez, Esq.
Alexandra K. Piazza, Esq.
Michael Anderson, Esq.
BERGER MONTAGUE PC
1818 Market Street, Suite 3600
Philadelphia, PA 19103
Telephone: (215) 875-4635
Facsimile: (215) 875-4604
Email: scarson@bm.net
crodriguez@bm.net
apiazza@bm.net
manderson@bm.net
DENTSPLY SIRONA: Faces Miami Suit Over $2.87 Share Drop Per Share
-----------------------------------------------------------------
CITY OF MIAMI GENERAL EMPLOYEES' & SANITATION EMPLOYEES' RETIREMENT
TRUST, on behalf of itself and all others similarly situated v.
DONALD M. CASEY, JR., DENTSPLY SIRONA INC., and JORGE GOMEZ, Case
No. 1:23-cv-02910-PAC (S.D. Ohio, Apr. 6, 2023) is a securities
class action brought on behalf of all persons or entities that
purchased Dentsply's common stock between June 9, 2021 and May 9,
2022, inclusive against Dentsply and certain of the Company's
former senior executives, arising under the Securities Exchange Act
of 1934.
The Company sells approximately two-thirds of its dental consumable
and technology and equipment products through third-party
distributors.
In order to ensure that they received at least some of their awards
under the 2021 Second Half Annual Incentive Plan, the Defendants
appear to have orchestrated a scheme to inflate the Company’s
revenue and earnings by manipulating the way in which Dentsply
recognized revenue tied to certain distributor rebate and incentive
programs, the Plaintiff alleges.
Indeed, during the Class Period, Dentsply touted its "go-tomarket
strategy" and "more sophisticated and strategic incentive plans" as
drivers of the Company’s success. Dentsply also assured investors
that it complied with Generally Accepted Accounting Principles
("GAAP") and maintained adequate internal controls over financial
reporting, yet the Company announced revenues and earnings that
were inflated by the improper recognition of revenue. As a result
of these misrepresentations, Dentsply stock traded at artificially
inflated prices throughout the Class Period, the suit says.
The truth began to emerge on April 19, 2022, when Dentsply suddenly
announced that its Board of Directors had terminated Defendant
Casey, the Company's Chief Executive Officer, effective immediately
and with no succession plan in place. As a result of this
disclosure, Dentsply shares declined by $6.52 per share, or 13%,
from $48.72 per share to $42.20 per share.
Then, on May 10, 2022, Dentsply announced that, following reports
from several internal whistleblowers, the Audit and Finance
Committee of its Board of Directors had commenced an investigation
regarding certain financial reporting matters. The Company also
disclosed that the Audit Committee is investigating allegations
that "certain former and current members of senior management
directed the Company’s use of these incentives and other actions
to achieve executive compensation targets in 2021." As a result of
these disclosures, Dentsply shares declined by $2.87 per share, or
7%, from $39.25 per share to $36.38 per share, the suit further
alleges.
Plaintiff Miami is a government entity that was founded in 1985 to
provide benefits—including retirement, death, and disability
benefits—to eligible employees of the government of the City of
Miami, Florida.
Dentsply produces a wide array of dental supplies, ranging from
anesthetics, plaque and gum disease prevention, tooth polishers,
and artificial teeth.[BN]
The Plaintiff is represented by:
John C. Camillus, Esq.
LAW OFFICES OF JOHN C. CAMILLUS LLC
Columbus, OH 43214
Telephone: (614) 992-1000
Facsimile: (614) 559-6731
E-mail: jcamillus@camilluslaw.com
- and -
Hannah Ross, Esq.
Avi Josefson, Esq.
Scott R. Foglietta, Esq.
BERNSTEIN LITOWITZ BERGER & GROSSMANN LLP
1251 Avenue of the Americas
New York, NY 10020
Telephone: (212) 554-1400
Facsimile: (212) 554-1444
E-mail: hannah@blbglaw.com
avi@blbglaw.com
- and -
Robert D. Klausner, Esq.
KLAUSNER KAUFMAN JENSEN
& LEVINSON
7080 Northwest 4th Street
Plantation, FL 33315
Telephone: (954) 916-1202
E-mail: bob@robertdklausner.com
DIVERSIFIED ENERGY: Bid to Dismiss Amended McEvoy Class Suit Denied
-------------------------------------------------------------------
In the case, MARK McEVOY, et al., Plaintiffs v. DIVERSIFIED ENERGY
COMPANY PLC, et al., Defendants, Civil Action No. 5:22-CV-171
(N.D.W. Va.), Judge John Preston Bailey of the U.S. District Court
for the Northern District of West Virginia, Wheeling, denies the
Defendants' Motion to Dismiss Second Amended Class Action
Complaint.
The case stems from thousands of abandoned gas wells in West
Virginia that the Plaintiffs allege Diversified Defendants had a
duty to plug and decommission. Moreover, the case also concerns
alleged fraudulent transfers made between the Diversified
Defendants and the EQT Defendants.
The SAC was filed on Jan. 5, 2023. The Plaintiffs bring the action
under Federal Rules of Civil Procedure 23(b)(2), (b)(3), and (c)(4)
on behalf of the following proposed classes:
a. The Voidable Transfer Class, consisting of all persons or
entities that own property in West Virginia on which Diversified
owns a well, regardless of whether the wells are currently
abandoned or non-producing; and
b. The Common Law Class, consisting of all persons or entities
who own land in West Virginia containing at least one well that (1)
is not producing and/or has not produced oil or gas for 12
consecutive months, (2) is currently owned or operated by
Diversified, and (3) has not been plugged or properly
decommissioned.
In the SAC, the Plaintiffs assert five causes of action: Count I -
Trespass by Diversified (Common Law Class only); Count II -
Nuisance by Diversified (Common Law Class only); Count III -
Negligence by Diversified (Common Law Class only); Count IV -
Avoidance and Recovery of a Voidable Transfer as the Result of an
Actual Fraudulent Transfer (Voidable Transfer Class only); and
Count V - Avoidance and Recovery of Voidable Transfer as the Result
of a Constructive Fraudulent Transfer (Voidable Transfer Class
only).
For relief, the Plaintiffs seek the following:
1. Pursuant to Federal Rules of Civil Procedure 23(b)(2),
(b)(3) and (c)(4), certify the proposed class for the purpose of
determining the Defendants' liability to the Plaintiffs;
2. Enforce the Plaintiffs' and the class members' private
property rights by declaring that Diversified's failure to promptly
plug its abandoned wells on their properties constitutes trespass,
nuisance, and negligence such that they are entitled to appropriate
damages necessary to remedy their injuries;
3. Award the Plaintiffs and the class members damages from
Diversified to compensate them for trespass (calculated at the cost
of plugging, remediation, and demolition of the abandoned wells),
nuisance, and negligence;
4. Declare that Diversified's July 2018 Voidable Transfer of
nearly $523.4 million to EQT and the assumption of plugging
obligations in exchange for approximately 11,000 wells is avoided
as a fraudulent transfer as defined by the Alabama UFTA;
5. Declare that Diversified's May 2020 Voidable Transfer of
nearly $114.5 million to EQT and the assumption of plugging
obligations in exchange for approximately 900 wells is avoided as
fraudulent transfer as defined by Alabama UVTA;
6. Direct the recovery of the assets Diversified transferred
to EQT and reimpose the plugging and decommissioning obligations
incurred by Diversified in the July 2018 and May 2020 Voidable
Transfers back onto the transferor, EQT, to the extent necessary to
satisfy the Plaintiffs' claims under Sections 8-9A-7 and 8-9B-8 of
the Alabama Code or under otherwise applicable fraudulent transfer
laws, or, alternatively, in accordance with Alabama Code Sections
8-9A-7 and 8-9B-9, enter Judgment for the value of the property
transferred and the obligations incurred by Diversified up to the
amount necessary to satisfy the Plaintiffs' claims;
7. Create a fund from the damages awarded from EQT to be used
to plug and otherwise decommission Class Members' wells in West
Virginia;
8. Create a separate fund from damages awarded from
Diversified to be used to plug and otherwise decommission Class
members' wells;
9. Appoint a receiver to take charge of and administer both
of those funds;
10. Award attorney's fees as appropriate; and
11. Grant the Plaintiffs and all the Class members such other
and further relief as is just and equitable under the
circumstances.
On Jan. 18, 2023, the Defendants filed their Motion to Dismiss and
accompanying Memorandum of Law in Support. Therein, they assert
that all the claims in the Plaintiffs' SAC depend on the theory
that Diversified must plug natural gas wells on the Plaintiffs'
land pursuant to West Virginia Code Section 22-6-19. They argue
because Diversified has no existing duty to plug the wells on the
Plaintiffs' property, the Plaintiffs' tort claims based on the
alleged breach of that purported duty fail as a matter of law.
Furthermore, the Defendants argue because the Plaintiffs do not
have any valid tort claims against Diversified, the Plaintiffs
cannot maintain their derivative claims for fraudulent transfer
against any of the defendants as a matter of law.
First, Judge Bailey disagrees with the Defendants' contention that
the Consent Order completely preempts the regulation of well
plugging. The Consent Order is simply an exercise of OOG's
prosecutorial discretion and has no effect on the Plaintiffs'
property rights. The West Virginia Legislature has also made clear
that the oil and gas program does not preclude common law tort
claims like those brought by the Plaintiffs. The Consent Order
entered cannot leave them with no recourse for the alleged tort
claims. Lastly, the Consent Order does not establish Diversified's
compliance with West Virginia Code Section 22-6-19.
Seeing as the Consent Order does not strip the Court of
jurisdiction, Judge Bailey turns to each of the Plaintiffs' claims
to see whether the claim warrants dismissal. First, because the
Defendants continue to leave wells unplugged and the Plaintiffs'
property damage unabated, he finds that the Plaintiffs' tort claims
are not barred by a two-year statute of limitations in West
Virginia pursuant to the continuing tort doctrine.
Second, the Plaintiffs have alleged enough facts to state a claim
for relief that is plausible on its face. Diversified continues to
occupy their property with gas wells and continues to leave
derelict equipment on the land. Thus, the Defendants' Motion to
Dismiss is denied as it pertains to trespass by Diversified.
Third, reviewing allegations in a light most favorable to the
Plaintiffs, Judge Bailey concludes that the Plaintiffs have alleged
enough facts to state a claim for relief that is plausible on its
face. Diversified continues to leave wells and associated equipment
on the Plaintiffs' properties that interfere with the use and
enjoyment of their land. Thus, the Defendants' Motion to Dismiss is
denied as it pertains to nuisance by Diversified.
Fourth, at this stage, the Plaintiffs have sufficiently alleged
enough facts to state a claim for negligence that is plausible on
its face. Thus, the Defendants' Motion to Dismiss is denied as it
pertains to negligence by Diversified.
Finally, Judge Bailey finds that the Plaintiffs are properly
"creditors" with valid existing "claims." The Plaintiffs have
alleged enough facts to state a claim to relief to Counts IV and V
that is plausible on its face. The Defendants' Motion to Dismiss is
denied as it pertains to Count IV and Count V.
For the reasons stated, the Defendants' Motion to Dismiss is
denied.
The Clerk will transmit copies of the Order to all counsel on
record.
A full-text copy of the Court's April 4, 2023 Amended Memorandum
Opinion & Order is available at https://tinyurl.com/5crxhu32 from
Leagle.com.
DX ENTERPRISES: McClaine BIPA Class Suit Removed to S.D. Ill.
-------------------------------------------------------------
HEATHER MCCLAINE, on behalf of herself and all other persons
similarly situated, known and unknown v. DX ENTERPRISES, INC. f/k/a
DX ENTERPRISES, LLC d/b/a DXE, d/b/a FCQA, LLC, Case No. 2023LA1
(Filed Feb. 27, 2023), was removed from the Circuit Court of the
Second Judicial Circuit, Lawrence County, Illinois, to the United
States District Court for the Southern District of Illinois on Apr.
6, 2023.
The Southern District of Illinois Court Clerk assigned Case No
3:23-cv-01168 to the proceeding.
The Complaint contends that the Defendant violated the Illinois
Biometric Information Privacy Act (BIPA) by:
-- improperly capturing and/or collecting the biometric
identifiers of the Plaintiff and the class that she seeks to
represent;
-- failing to provide adequate written notice, informing the
the Plaintiff and the class that she seeks to represent of
the
same;
-- failing to obtain written releases from the Plaintiff and
the
class she seeks to represent; and
-- improperly disclosing and/or disseminating the biometric
identifiers of the Plaintiff and the class she seeks to
represent.
The Complaint seeks "liquidated or actual monetary damages,
whichever is higher, to Plaintiff and the Class for each violation
of BIPA as provided by 740 ILCS 14/20(1)-(2)," injunctive relief,
the Plaintiff's attorneys' fees and costs, and other relief. The
Plaintiff alleges that she is a former employee of Defendant.
DX is a recruiting firm that provides staffing and logistic
services.[BN]
The Plaintiff is represented by:
Nitika Suchdev, Esq.
O'HAGAN MEYER LLC
One E. Wacker Drive, Suite 3400
Chicago, IL 60601
Telephone: (312) 422-6100
Facsimile: (312) 422-6110
E-mail: nsuchdev@ohaganmeyer.com
EAST OHIO GAS: Appeal From Refusal to Dismiss Landmark Suit Tossed
------------------------------------------------------------------
In the case, LANDMARK 2 LIMITED LIABILITY COMPANY, et al.,
Appellees v. EAST OHIO GAS COMPANY, Appellant, C.A. No. 30328 (Ohio
App.), the Court of Appeals of Ohio, Ninth District, Summit County,
dismisses the Defendant-Appellant's appeals from the order of the
Summit County Common Pleas Court denying its motion to dismiss for
lack of subject matter jurisdiction.
Landmark has moved the Court to dismiss the appeal for lack of a
final order. East Ohio Gas Company dba Dominion Energy Ohio ("DEO")
opposed the motion.
On Sept. 3, 2021, Landmark filed a class action lawsuit against DEO
seeking compensation for natural gas that Landmark delivered to
DEO's pipeline system. It alleged that it, and other purported
class members, inserts the gas produced from their wells into DEO's
pipeline. Landmark claims that DEO only credited the suppliers who
purchase gas from Landmark with a portion, not all, of the actual
volume of gas that Landmark inserted into DEO's pipeline system. It
accuses DEO of taking for its own use the extra gas that DEO
allegedly received from Landmark but did not credit to the
suppliers with whom Landmark had contracted.
DEO filed a motion to dismiss on several grounds, including for
lack of subject matter jurisdiction under Civ.R. 12(B)(1). It
argued that the Public Utilities Commission of Ohio ("PUCO")
maintains exclusive jurisdiction to resolve the claims.
The trial court's order granted DEO's motion in part and denied it
in part. With respect to subject matter jurisdiction, the trial
court concluded that the PUCO does not possess jurisdiction over
Landmark's claims and denied DEO's motion.
The Court of Appeals states that courts consistently hold that an
order denying a motion to dismiss for lack of subject-matter
jurisdiction is not a final order because the absence of an
immediate appeal does not foreclose appropriate relief in the
future and does not determine the merits of the underlying claims.
It is DEO's position that exclusive subject matter jurisdiction
rests with the PUCO and that it has the right not to participate in
litigation before a tribunal without jurisdiction. DEO claims that
the violation of this right cannot be remedied in a later appeal
following adjudication on the merits. During oral argument, it also
argued that it would be unnecessarily subjected to high litigation
costs should it be forced to appeal after a trial on the merits and
that judicial economy would be better served if an appeal could be
immediately taken.
The Court of Appeals is not persuaded that the order appealed
subjects DEO to a risk of irreparable harm during the pendency of
the litigation such that the ultimate decision would be
meaningless. Rather, DEO may appeal in the normal course after the
litigation has concluded, and, therefore, the trial court's
exercise of jurisdiction would not constitute the "bell that cannot
be unrung."
For the same reasons, the Court of Appeals is unpersuaded that the
order is immediately appealable under R.C. 2505.02(B)(2). DEO has
not demonstrated that effective relief would be unavailable without
an immediate appeal. Furthermore, subject matter jurisdiction may
be challenged after final judgment. Consequently, the order
appealed also fails to satisfy the requirements of R.C.
2505.02(B)(2).
Based on the foregoing, the Court of Appeals concludes that the
trial court's order denying DEO's motion to dismiss is not final
and appealable and that it is without jurisdiction to hear the
appeal. Therefore, Landmark's motion to dismiss is granted and the
appeal is dismissed.
Immediately upon the filing thereof, the document will constitute
the journal entry of judgment, and it will be file stamped by the
Clerk of the Court of Appeals at which time the period for review
will begin to run. The Clerk of the Court of Appeals is instructed
to mail a notice of entry of this judgment to the parties and to
make a notation of the mailing in the docket, pursuant to App.R.
30.
Costs are taxed to the Appellant.
A full-text copy of the Court's March 31, 2023 Decision is
available at https://tinyurl.com/muyb53cn from Leagle.com.
ADRIAN D. THOMPSON -- athompson@taftlaw.com -- and JULIE A. CROCKER
-- jcrocker@taftlaw.com -- Attorneys at Law, for the Appellant.
GREGORY J. KROCK -- gkrock@mcguirewoods.com -- Attorney at Law, for
the Appellant.
MARSHAL M. PITCHFORD, Attorney at Law, for the Appellee.
R. ALLEN SMITH -- asmith@smith-law.org Attorney at Law, for the
Appellee.
ANDREW S. LEVETOWN, Attorney at Law, for the Appellee.
STEVEN T. WEBSTER, Attorney at Law, for the Appellee.
GRACO CHILDREN'S: Schmitt Suit Over Defective Car Seats Dismissed
-----------------------------------------------------------------
John O'Brien of Legal Newsline reports that the class action
plaintiff who sued over the shelf life of a Graco children's car
seat lacked standing to do so, a New Jersey federal judge has
ruled.
Judge Zahid Quraishi on March 28 dismissed Matthew Schmitt's
lawsuit without prejudice, offering him 30 days to file an amended
complaint. Schmitt sued because Graco seats are to be used for only
seven to 10 years after their manufacture, and the seat he ordered
was already 1.5 years old by the time he received it.
That left it at least 15% toward the end of its shelf life, Schmitt
complains. But Quraishi says Schmitt failed to establish standing
for a couple of reasons.
First, his purchase did not appear to have been made pursuant to a
contract, so he could not have been denied the benefit of any
bargain.
"Second," the judge wrote, "regardless of any lack of contract, it
is undisputed that 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 Defendants.
"In that regard, while Plaintiff relies, in part, on cases
recognizing standing on a benefit-of-the-bargain theory of economic
harm, those cases are distinguishable."
Courts recognizing that theory did so in cases involving a
defective product or plaintiffs who established they were induced
into buying a product by a specific misrepresentation.
"Indeed, as a practical matter of commerce, the Court reasons that
buyers must appreciate that certain products have a shelf life, and
the manufacturing and distribution process of those products is
such that some of that shelf life will inevitably be lost prior to
receipt by the consumer," the ruling says. [GN]
GREEN MESSENGERS: Sanchez Suit Stayed Pending State Proceedings
---------------------------------------------------------------
In the case, HANS SANCHEZ, Plaintiff v. GREEN MESSENGERS, INC., et
al., Defendants, Case No. 5:20-cv-06538-EJD (N.D. Cal.), Judge
Edward J. Davila of the U.S. District Court for the Northern
District of California, San Jose Division, grants Defendant
Amazon.com Services, LLC's motion to stay pending the resolution of
state administrative proceedings before the California Labor
Commissioner.
Sanchez brings the putative class action against Defendants Green
Messengers and Amazon.com Services, LLC, alleging various wage and
hour violations under the California Labor Code and California
Business and Professions Code. The Plaintiff is a former delivery
driver employed by Green Messengers, a company which contracted
with Amazon to provide delivery services.
During the Plaintiff's time as a delivery driver, Amazon allegedly
planned and scheduled routes, controlled the hours worked by
drivers, determined wages, and had the power to remove drivers from
their jobs. According to him, he and the other putative class
members were denied legally mandated meal periods and rest periods,
were not paid all wages earned, were not reimbursed for business
expenses, and were not provided with accurate wage statements.
The Plaintiff initially filed suit in Santa Clara Superior Court,
and his case was removed to this Court on Sept. 17, 2020. He twice
amended his complaint, after which the Court granted Amazon's
motion to dismiss with leave to amend. The Plaintiff then filed the
operative complaint on Nov. 29, 2021 and Amazon answered on Jan.
12, 2022.
Concurrent with the action, the California Labor Commissioner
conducted a parallel investigation. On Jan. 19, 2021, the Labor
Commissioner issued Wage Citations against the Defendants for
violations that were in large part similar to the Plaintiff's
claims. The Defendants appealed, and those appeals are currently
pending before the Labor Commissioner's Office.
Now before the Court is Amazon's motion to stay pending the
resolution of state administrative proceedings before the
California Labor Commissioner. Judge Davila finds this motion
suitable for decision without oral argument.
The parties dispute the proper standard for a stay in these
circumstances. Amazon contends that the Court may stay the action
under Landis v. North American. Co., 299 U.S. 248 (1936). The
authority for a stay under Landis arises from a court's inherent
power to control the disposition of the causes on its docket with
economy of time and effort for itself, for counsel, and for
litigants.
The Plaintiff disagrees, arguing that the Court must apply the more
restrictive abstention standard under Colorado River Water
Conservation District v. United States, 424 U.S. 800 (1976). In his
view, Colorado River applies exclusively when a party seeks to stay
a federal action in favor of concurrent state proceedings, and
Landis applies when a party seeks to stay a federal action in favor
of another federal action.
Judge Davila finds that while Colorado River generally applies to
stays pending state proceedings, in situations where the state
proceedings would not fully resolve all issues before the federal
court, Landis may also apply. That is the case in matter, where the
Plaintiff raises an expense reimbursement claim that is not present
in the concurrent state proceedings before the Labor Commissioner.
Accordingly, Judge Davila analyzes Amazon's motion under Landis.
Under Landis, a court deciding whether to stay proceedings weighs
three competing interests: (1) the possible damage which may result
from the granting of a stay; (2) the hardship or inequity which a
party may suffer in being required to go forward; and (3) the
orderly course of justice measured in terms of the simplifying or
complicating of issues, proof, and questions of law which could be
expected to result from a stay.
First, Judge Davila finds that the Plaintiff would suffer little,
if any, damage from a stay. There is no allegation of ongoing
violations, and Plaintiff is not seeking injunctive relief. Second,
he finds that Amazon would suffer hardship absent a stay. Third,
the orderly course of justice weighs in favor of a stay because the
state proceedings will likely simplify many of the issues before
the Court due to the overlapping nature of the claims. For these
reasons, Judge Davila finds that a stay of the action pending
resolution of the proceedings before the Labor Commissioner best
serves the efficient use of judicial and party resources.
In view of his analysis, Judge Davila grants Amazon's motion to
stay. The parties will file a joint status report regarding the
status of the proceedings before the Labor Commissioner one year
from the date of the Order. Thereafter, the parties will file joint
status reports every six months. Following the filing of each
status report, the Court will consider whether the stay should be
lifted. The parties will file a status report notifying the Court
within five days of the resolution of the proceedings before the
Labor Commissioner.
A full-text copy of the Court's March 31, 2023 Order is available
at https://tinyurl.com/4tcujkc5 from Leagle.com.
HILTON HOTELS: Denial of Class Cert. in White ERISA Suit Reversed
-----------------------------------------------------------------
In the case, IN RE: VALERIE R. WHITE, INDIVIDUALLY AND ON BEHALF OF
ALL OTHERS SIMILARLY SITUATED, ET AL., Petitioners, Case No.
22-8001 (D.C. App.), the U.S. Court of Appeals for the District of
Columbia Circuit reverses the district court's decision denying
certification of a class.
White is a former Hilton employee who alleges that Hilton
wrongfully denied her vested retirement benefits. Specifically,
White argues that both the Employee Retirement Income Security Act
of 1974 ("ERISA"), 29 U.S.C. ch. 18 Section 1001 et seq., and court
rulings in related litigation required Hilton to apply an "hours of
service" standard to her "fractional" (partial) years of service
rendered before 1976, which Hilton refused to do. This, White
maintains, led Hilton to undercount her years of service with the
company so that she fell just below the ten-year work period needed
for retirement benefits to vest.
Juneau is a former Hilton employee who spent some of her employment
years at what Hilton terms a "non-participating" Hilton property,
which is an affiliated business where employment does not count
toward a Hilton retirement plan. Juneau only qualifies for vested
retirement benefits if Hilton counts service at its
non-participating properties, which Juneau argues Hilton is bound
to do by both ERISA and precedent.
Peter Betancourt is the son of Pedro Betancourt, who worked for
Hilton for more than 30 years, but died without ever receiving
retirement benefits from the company. This is because Hilton only
recognized that it owed Pedro Betancourt retirement benefits when
it was forced to review its records as part of a separate class
action lawsuit against it. By that time, both Pedro and his wife,
Peter Betancourt's mother, had passed. Still, when Peter Betancourt
pursued a vesting claim on behalf of his late father, Hilton denied
it because Peter was neither a beneficiary nor the surviving spouse
of a beneficiary. Peter Betancourt asserts that denial violated
ERISA.
White, Juneau, and Betancourt (collectively, "White") brought the
putative class action under ERISA challenging Hilton's denials of
retirement benefits to themselves and others who suffered denials
on the same bases.
In September 2018, the district court summarily denied without
prejudice White's initial motion to certify a class action pending
its disposition of White's motion to amend the complaint because
any amendment could affect the contours of a class certification
order. It ultimately denied the motion to amend, but it granted
White's request for leave to file a renewed motion for
certification.
White then filed a renewed motion for class certification under
Federal Rule of Civil Procedure 23(b)(2). The district court
declined to certify that class, but expressly did so without
prejudice to a renewed motion to certify. The chief flaw identified
by the district court was that the class definition was
"impermissibly 'fail-safe." The district court afforded White a
final opportunity to renew the motion for class certification" in a
manner that would cure the fail-safe problem in the class
definition.
White then filed an amended motion to certify. That motion edited
the class definition to include individuals who: (a) Are former or
current employees of Hilton Worldwide, Inc. or Hilton Hotels Corp.,
or the surviving spouses or beneficiaries of former Hilton
employees; (b) Submitted a claim for vested retirement benefits
from Hilton under the claim procedures ordered by the District
Court and the Court of Appeals in Kifafi, et al. v. Hilton Hotels
Retirement Plan, et al., C.A. 98-1517; and (c) Have been denied
vested rights to retirement benefits that have been denied by the
Hilton Defendants': (1) use of fractional years of vesting service
under an elapsed time method to count periods of employment before
1976 with no resolution of whether fractions constitute a year of
service under ERISA; (2) refusal to count non-participating service
for vesting purposes notwithstanding that the service was with the
'employer' under ERISA Section 3(5) a hotel property that Hilton
operated under a management agreement, that the Hilton Defendants
counted service at the same Hilton Properties in Kifafi and
represented to this Court and the D.C. Circuit in Kifafi that
Hilton had counted non-participating service with Hilton for
vesting, and that the records requested and received from
Defendants do not identify any non-participating property that is
also not a Related Company; and (3) denial of retroactive/back
retirement benefit payments to heirs and estates on the sole basis
that the claimants are not the surviving spouse of deceased vested
participants.
The district court denied White's motion to certify on the ground
that the proposed class definition remained impermissibly
fail-safe. It added that other Rule 23(a) problems with the second
and third proposed subclasses identified in the prior order
continued to trouble the class definition, but the Court need not
reach them.
Fourteen days after the denial of class certification, White filed
with the Court of Appeals a petition under Rule 23(f) for
permission to appeal the denial of class certification. The
district court, with the agreement of the parties, subsequently
stayed its proceedings pending resolution of the petition on the
ground that the question of "whether a fail-safe class definition
is permissible is likely an 'unsettled and fundamental issue of law
relating to class actions' for which the Court of Appeals might be
more inclined to grant appellate review.
White now seeks permission under Federal Rule of Civil Procedure
23(f) to appeal the district court's decision denying certification
of a class.
Because the Rule 23(f) appeal was timely filed, the question raised
involves an important and recurring issue of law, the issue will
likely evade end-of-case review for all practical purposes, and the
circumstances taken as a whole warrant interlocutory intervention,
the Court of Appeals grants the petition for interlocutory review.
Federal Rule of Civil Procedure 23 governs class action litigation
in the federal courts. Rule 23(a) sets out four threshold
requirements that all proposed class actions must meet: numerosity,
commonality, typicality, and adequacy of representation. After
passing that threshold, the proponents of a class must also show
that the class qualifies as one of the three permitted types of
class actions specified in Rule 23(b).
A class can proceed under Rule 23(b)(1) if "prosecuting separate
actions by or against individual class members" would cause
confusion or in some way be impracticable. A Rule 23(b)(2) class is
one that seeks declaratory or injunctive relief where "the party
opposing the class has acted or refused to act on grounds that
apply generally to the class. Lastly, a Rule 23(b)(3) class is
authorized where the court finds that the questions of law or fact
common to class members predominate over any questions affecting
only individual members, and that a class action is superior to
other available methods for fairly and efficiently adjudicating the
controversy.
The Court of Appeals states that the case concerns a request for
certification under Rule 23(b)(2) as White seeks injunctive relief
directing Hilton to vest and to recognize the putative class
members' benefits. It explains that the textual requirements of
Rule 23 are fully capable of guarding against unwise uses of the
class action mechanism.
So, the Court of Appeals rejects a rule against "fail-safe" classes
as a freestanding bar to class certification ungrounded in Rule
23's prescribed criteria. Instead, district courts should rely on
the carefully calibrated requirements in Rule 23 to guide their
class certification decisions and the authority the Rule gives them
to deal with curable misarticulations of a proposed class
definition.
The Court of Appeals holds that the court abused its discretion by
denying the amended class certification motion based on a
stand-alone and extra-textual rule against "fail-safe" classes,
rather than applying the factors prescribed by Federal Rule of
Civil Procedure 23(a). Rule 23 provides strong protection against
circular or indeterminate class definitions, which the district
court understandably sought to avoid.
For these reasons, the Court of Appeals concludes that the district
court erred in enforcing an extra-textual limitation on class
actions when faithful enforcement of Rule 23's specified terms and
criteria for class actions would ensure the proper definition of a
class early in the litigation that will be bound by a final
judgment in the case.
Accordingly, the Court of Appeals reverses and remands for further
proceedings consistent with its Opinion.
A full-text copy of the Court's April 4, 2023 Opinion is available
at https://tinyurl.com/56f4b93u from Leagle.com.
Stephen R. Bruce argued the cause and filed the briefs for the
Petitioners.
Jonathan K. Youngwood -- jyoungwood@stblaw.com -- argued the cause
and filed the brief for the Respondents.
INDIANA: Bill Banning Gender-Affirming Health Care May Lead to Suit
-------------------------------------------------------------------
Whitney Downard of Indiana Capital Chronicle reports that the
signing of a controversial medical care ban for transgender minors
on April 5, 2023 prompted a near-immediate lawsuit after Gov. Eric
Holcomb approved the bill over the protests of families, medical
professionals and transgender children.
Within hours, the American Civil Liberties Union of Indiana (ACLU)
filed a class action lawsuit on behalf of four transgender minors,
whose health care would abruptly cease if the bill went into effect
on July 1.
Attorney General Todd Rokita said his office is prepared to defend
the ban in court.
Holcomb, in a statement, seemed to agree with the bill's
legislative supporters who said such medical interventions should
only occur in adulthood - though several other states have now
introduced bans on adult gender-affirming health care after passing
similar laws barring the treatment for minors.
"Permanent gender-changing surgeries with lifelong impacts and
medically prescribed preparation for such a transition should occur
as an adult, not as a minor. There has and will continue to be
debate within the medical community about the best ways to provide
physical and mental health care for adolescents who are struggling
with their own gender identity, and it is important that we
recognize and understand those struggles are real. With all of that
in mind, I have decided to sign SB 480 into law," he said in a
prepared statement.
Just the day before, Holcomb said the bill was "clear as mud,"
declining to share how he'd act on the measure but saying he'd
consulted with lawmakers, physicians and legal counsel to inform
his decision.
On April 1, 2023, hundreds gathered at the Indiana Statehouse to
personally appeal to the governor and ask him to veto Senate Bill
480, which bans puberty blockers, hormone therapies and surgical
interventions.
Repeated testimony affirmed that no doctors perform such surgeries
on children in Indiana.
Sen. Tyler Johnson, R-Leo — who authored the legislation —
praised the governor for signing his bill.
"We have the utmost compassion for children suffering with gender
dysphoria and they deserve sensible counseling. Gender related
procedures on children are growing at an alarming rate in the
United States while other countries are scaling back their use.
Since these procedures have irreversible and life-altering effects,
it is appropriate and necessary for our state to make sure these
procedures are performed only on adults who can make the decision
on their own behalf," Johnson, a physician, said in a statement.
ACLU files suit
The four youth represented by the ACLU span the state, from a
10-year-old girl in Monroe County to a 15-year-old boy in Elkhart
County. Other parties include their parents and a doctor, whose
Elkhart County family practice would be impacted by the bill.
Under the bill, those youth - and hundreds of other youth - would
have six months after the bill goes into effect July 1 to cease
using their prescribed treatments for hormone therapies. Doctors
would immediately be unable to prescribe puberty blockers to
transgender children.
Both types of treatments are still allowed for cisgender children
without a gender dysphoria diagnosis.
In a virtual press conference, families shared the emotional toll
the health care ban would have on their children. Three of the four
youth had reportedly self harmed in the court filing, including
both transgender girls who spoke of cutting off or mutilating their
male genitalia before the age of 5.
"It's been very difficult to see my son unmotivated and losing all
that progress," Maria Rivera, one of the parents, said. " (I) see
my child losing all of his hope; it's devastating for us."
Ken Falk, the ACLU legal director, said the Seventh Circuit Court
had precedence for ruling that transgender discrimination is sex
discrimination, which strengthens the case. The Seventh Circuit
includes Indiana, Illinois and Wisconsin.
He noted that the bill would bar parents from making medical
decisions about their child's care, violating their parents
rights.
The ACLU, in an earlier release, added that similar laws in Alabama
and Arkansas are currently blocked by federal courts. Other
affiliates are in the midst of legal challenges against new or
proposed gender-affirming health care bans in: Tennessee, Oklahoma,
Kentucky, Utah and Montana. A federal judge overseeing a challenge
to the Arkansas ban, the first passed in the nation, will rule on
the issue soon.
The Indiana bill closely mirrored several introduced bills across
the country, which has seen a flurry of anti-trans legislation in
recent months. Committee testimony featured several out-of-state
groups and prominent anti-trans activists.
AG 'ready' to defend law
Attorney General Todd Rokita tweeted that his office was "ready" to
defend the state in court and later released a statement.
"Signing the bill that protects our children from irreversible and
damaging decisions was the right move by the governor. Banning
these experimental procedures is critical for the health and
wellbeing of future generations. My office is thankful for the
General Assembly's hard work to ensure this got across the finish
line," Rokita said.
Last year, Holcomb vetoed a measure that would have barred
transgender female athletes from competing with their peers, saying
the Indiana High School Athletic Association already had a policy
for transgender athletes. Within weeks, the General Assembly
returned for a technical corrections day and voted to overturn his
veto with a simple majority.
Had Holcomb decided to veto this bill, it's likely that lawmakers
would ultimately overturn his veto again.
The ACLU challenged that bill as well, which is currently in
court.
The Indiana Capital Chronicle covers the state legislature and
state government. For more, visit indianacapitalchronicle.com. [GN]
INMATE SERVICES: Class Settlement in Stearns Suit Wins Prelim. OK
-----------------------------------------------------------------
In the case, DANZEL L. STEARNS, on behalf of himself and all
similarly situated persons, Plaintiff v. INMATE SERVICES
CORPORATION, et al., Defendants, Case Nos. 3:19-cv-00100-KGB
(Lead), 3:19-cv-00121-KGB (E.D. Ark.), Judge Kristine G. Baker of
the U.S. District Court for the Eastern District of Arkansas,
Northern Division, grants the Plaintiff's Motion for Preliminary
Approval of Settlement Class.
Pending before the Court is the notice of the Motion; Motion,
supported by the Defendants, for Preliminary Approval of Settlement
Class filed by Stearns on behalf of himself and all similarly
situated persons. The Court conducted a hearing on the Motion.
After that hearing, the Court entered an Order directing the
parties to file status reports following up on matters addressed at
the hearing, if necessary. Status reports have now been filed.
Consistent with the terms of her Order, Judge Baker grants the
Motion for Preliminary Approval of Settlement Class.
Judge Baker directs, as a part of her Order ruling on the Motion,
that the Notice Of Proposed Settlement Of Class Action and the
Class Action Claim Form be amended in the following manner:
(a) For the reasons explained at the hearing on the Motion and
in Mr. Stearns's Status Report, the first full paragraph of the
Class Notice will be amended to state: THIS CASE WAS BROUGHT BY
DANZEL STEARNS ON BEHALF OF ALL PERSONS WHO WERE TRANSPORTED UNDER
CONDITIONS CONSTITUTING CRUEL AND UNUSUAL PUNISHMENT that is, while
fully retrained for more than 24 continuous hours without an
opportunity to lie down to sleep at night without restraints.
(b) For the reasons explained at the hearing on the Motion and
in Mr. Stearns's status report, the first full paragraph of the
Claim Form will be amended to state: CLAIM FOR COMPENSATION FOR
SUFFERING UNDER CONDITIONS CONSTITUTING CRUEL AND UNUSUAL
PUNISHMENT DURING TRANSPORTATION ON INMATE SERVICES CORPORATION
VEHICLE, DURING THE PERIOD FROM FEBRUARY 11, 2016, TO DATE, FOR
MORE THAN TWENTY-FOUR (24) CONTINUOUS HOURS, WHILE FULLY
RESTRAINED, AND WITHOUT BEING RELEASED FROM RESTRAINTS AND
PERMITTED TO SLEEP, OVERNIGHT, WHILE LYING DOWN.
The Class Notice should also be amended to include the specific
date and time of the Final Approval Hearing.
Judge Baker provisionally certifies the Action to proceed as a
class action for settlement purposes only, pursuant to Rule 23(e),
with the Settlement Class defined as follows: all persons who were
transported by INMATE SERVICES CORPORATION on or between February
11, 2016, to the date of this Order, fully restrained,
continuously, for a period of twenty-four (24) hours or more
without being released from restraints and permitted to sleep
overnight lying down.
Judge Baker approves the Class Notice and the Claim Form, as
modified by the terms of her Order, and further approves the method
by which Class Notice proposed in the Settlement Agreement is to be
published. She approves the procedure set forth in the Settlement
Agreement and in the Class Notice, with which Settlement Class
Members must comply in order validly to object to the Settlement or
to exclude themselves from the Settlement.
For settlement purposes only, subject to Final Approval, Judge
Baker appoints (i) the Plaintiff as the Representative Plaintiff of
the Class for settlement purposes only, subject to Final Approval
and (ii) the Plaintiff's Counsel to serve as the Class Counsel.
A Final Approval Hearing is set for June 16, 2023, at 1:00 p.m.
(CDT). The Class Counsel's application for an award of attorneys'
fees and costs will be heard at the time of the Final Approval
Hearing.
The date, time, and location of the Final Approval Hearing will be
set forth in the Class Notice, but the Final Approval Hearing will
be subject to continuation by the Court, including in the event the
Court elects to decide the motion for Final Approval without a
hearing, without further specific notice to the Class but with
notice that the Court may issue pursuant to its regular
procedures.
The Action, which will include Case No. 3:19-cv-00100-KGB and Case
No. 3:19-cv-00121-KGB, is stayed pending Final Approval, except for
any activities set forth in the Settlement Agreement.
In the event the Settlement is not finally and fully approved
through entry of the Order of Dismissal of the Action which becomes
final as of the Effective Date, and/or if the Settlement is not
otherwise fully and finally consummated, pursuant to the terms of
the Settlement Agreement, the Order granting Preliminary Approval
of the Settlement Agreement will be deemed void ab initio; the
Parties will be deemed to have reserved all of their respective
rights, legal positions, and arguments as of the day before entry
of the Order granting Preliminary Approval; and the Parties may
continue with any litigation, mediation, or settlement that they
choose.
A full-text copy of the Court's March 31, 2023 Order is available
at https://tinyurl.com/25jw88jh from Leagle.com.
KERRISDALE CAPITAL: Coffey Sues Over Stock Price Manipulation
-------------------------------------------------------------
ELIZABETH COFFEY, individually and on behalf of all others
similarly situated, Plaintiff v. KERRISDALE CAPITAL MANAGEMENT,
LLC; and SAHM ADRANGI, Defendants, Case No. 1:23-cv-02175 (N.D.
Ill., April 6, 2023) alleges violation of the Securities Exchange
Act of 1934.
According to the complaint, the April 4, 2023 Letter authored by
Kerrisdale and Adrangi, an "activist" short-seller of shares of
stock in C3.ai, Inc., accused C3.ai., Inc. of, among other things,
knowingly creating financial statements that contain "deceitful
accounting," "to fool market participants by painting a false
portrait of the company's profit and loss," and "trying to cover up
a failing business."
The April 4, 2023 Letter also accused Deloitte & Touche LLP, one of
the nation's leading auditing, accounting and consulting firms, and
C3.ai, Inc.'s auditor of, among other things, "rubber stamping
fraudulent accounting" and directed Deloitte & Touche LLP "to come
clean in its upcoming audit or resign."
The April 4, 2023 Letter had the effect specifically intended by
Kerrisdale and Adrangi on the day of its release to the public as
well as the following day, April 5, 2023, of driving down the price
of the common shares of stock in C3.ai, Inc. by over one-quarter
(1/4) of their value, resulting in a loss to its market
capitalization in an amount in excess of $1,000,000,000, causing
Kerrisdale and Adrangi to reap substantial profit, says the suit.
KERRISDALE CAPITAL MANAGEMENT, LLC operates as an investment firm.
The Company offers long and short investments in software and
technology sectors, as well as renders investment management and
portfolio construction services. [BN]
The Plaintiff is represented by:
Daniel J. Voelker, Esq.
VOELKER LITIGATION GROUP
33 N. Dearborn Street, Suite 1000
Chicago, IL 60602
Telephone: (312) 870-5430
Facsimile: (312) 505-4841
Email: dvoelker@voelkerlitigationgroup.com
LAKESHORE MANOR: Fails to Pay Proper Wages, Blanks-Austin Claims
----------------------------------------------------------------
BIANCA BLANKS-AUSTIN, individually and on behalf of all others
similarly situated, Plaintiff v. LAKESHORE MANOR MEMORY CARE LLC;
and EDEN SENIOR CARE LLC, Defendant Case No. Case No. 23-cv-450
(E.D., Wis., April 6, 2023) seeks to recover from the Defendants
unpaid wages and overtime compensation, interest, liquidated
damages, attorneys' fees, and costs under the Fair Labor Standards
Act.
Plaintiff Blanks-Austin was employed by the Defendants as a
caregiver.
LAKESHORE MANOR MEMORY CARE, commonly known as "Lakeshore
Manor," or "Lakeshore of Eden," is a memory care facility located
at Oshkosh, Wisconsin 54901. [BN]
The Plaintiff is represented by:
Scott S. Luzi, Esq.
James A. Walcheske, Esq.
David M. Potteiger, Esq.
WALCHESKE & LUZI, LLC
235 N. Executive Drive, Suite 240
Brookfield, WI 53005
Telephone: (262) 780-1953
Facsimile: (262) 565-6469
E-Mail: jwalcheske@walcheskeluzi.com
sluzi@walcheskeluzi.com
dpotteiger@walcheskeluzi.com
LONGEVERON INC: Court Refuses to Approve Malespin's Class Deal
--------------------------------------------------------------
In the case, JERALD VARGAS MALESPIN, on behalf of himself and
others similarly situated, Plaintiff v. LONGEVERON INC., et al.,
Defendants, Case No. 21-cv-23303-ALTMAN/Reid (S.D. Fla.), Judge Roy
K. Altman of the U.S. District Court for the Southern District of
Florida denies the Plaintiff's Unopposed Motion for Preliminary
Approval of Class Action Settlement without prejudice.
The parties -- Lead Plaintiff John Bosico and Defendants Longeveron
Inc., Geoff Green, James Clavijo, Joshua M. Hare, Donald M. Soffer,
Neil E. Hare, Rock Soffer, EF Hutton f/k/a Kingswood Capital
Markets, and Alexander Capital L.P. -- through their respective
counsel, and subject to Court approval, have agreed to settle the
case on a class-wide basis. The Plaintiff filed a Motion for
Preliminary Approval of Class Action Settlement, attaching the
parties' Stipulation and Agreement of Settlement, the terms of
which (the parties hope) will govern their resolution of the case.
Having carefully reviewed the Motion, the Agreement, the record,
and the governing law, Judge Altman denies the Motion without
prejudice. He explains that the Eleventh Circuit has held that Rule
23(h)'s plain language requires a district court to sequence
filings such that class counsel file and serve their attorneys'-fee
motion before any objection pertaining to fees is due, citing
Johnson v. NPAS Sols., LLC, 975 F.3d 1244, 1252 (11th Cir. 2020).
Since the Eleventh Circuit's decision in Johnson, the Court's
practice has been to require class counsel to file a motion for
attorneys' fees before written notice of the class action
settlement is issued to class members. Under the deadlines the
parties have proposed, he finds that the class counsel wouldn't be
required to file a motion for attorneys' fees until 21 days before
the class members' objection deadline. And, about fees, all the
class notice form says is that the class counsel will seek fees of
up to one-third of the Settlement Amount or $465,833. Indeed, since
the parties propose that the deadline to object to the settlement
should be on the same day as the deadline to oppose the fee
request, we wouldn't have time (before the settlement-objection
deadline) to rule on the fee objections -- or the fee request. As a
result, under the schedule the parties have proposed, the class
members would be forced to decide blindly -- that is, without any
ruling from the Court on fees -- whether to object to the
settlement or not. That isn't fair, and it isn't in keeping with
Johnson's dictates.
Additionally, Judge Altman rejects the Class Counsel's stated
intention to "apply for an incentive fee on Plaintiff's behalf." As
the Eleventh Circuit in Johnson has explained, the Supreme Court
has prohibited incentive awards in class action cases. In this
case, the Motion defines the award as an "incentive fee for the
Lead Plaintiff's efforts in pursuing this action." This payment
thus appears to be precisely the kind of incentive award the
Supreme Court has criticized as "decidedly objectionable."
Accordingly, after careful review, Judge Altman denies the
Plaintiff's Unopposed Motion for Preliminary Approval of Class
Action Settlement without prejudice. The Plaintiff may file an
Amended Motion by April 28, 2023.
A full-text copy of the Court's March 31, 2023 Order is available
at https://tinyurl.com/yace5jcm from Leagle.com.
LOREAL SA: Eshelby Class Suit Over False Advertisement Dismissed
----------------------------------------------------------------
Cosmetics Business reports that A class action suit which accused
L'Oreal of falsely advertising its beauty products as being made in
Paris has been dismissed.
Federal Judge Torres threw out the proposed class action on 3
April, stating that "a mere reference to Paris" is not enough to
deceive consumers as to where a product is made.
Plaintiff Veronica Eshelby accused L'Oreal of misleading US
consumers into believing the brand's beauty products are created in
France.
She accused the cosmetics giant of trying to trick customers by
using a 'Paris' label and French language text on products when
they are designed for the US market and manufactured in Arkansas
and other North American factories.
L'Oreal's lawyers argued that the brand name does not indicate a
place of manufacture and only elicits the company's history.
L'Oreal was founded in Paris and the company's global headquarters
are based there.
The court order read: "L'Oreal argues that Eshelby has not
plausibly pleaded that reasonable consumers are likely to be misled
by L'Oreal's product packaging. The court agrees.
"Eshelby alleges that some of the allegedly misleading products do
not contain French-language text on the packaging and are,
therefore, misleading solely because the word 'Paris' appears on
the packaging.
"As a matter of law, a mere reference to Paris is insufficient to
deceive a reasonable consumer regarding the manufacturing location
of a product.
"The word 'Paris' always appears in stylised text underneath the
word 'L'Oreal' in the same font and colour as the word 'L'Oreal,'
such that a reasonable consumer would understand that 'Paris' is
part of the brand name 'L'Oreal Paris'.
"L'Oreal has a right to use its brand name to correctly indicate
that its products belong to the L'Oreal Paris brand."
Eshelby also alleged she was deceived by seeing French language on
products she bought, such as the Ever Pure Shampoo.
The product had part of its English language label translated into
French.
The judge stated that none of the text on L'Oreal's labels make any
representations to the country of manufacture - except for the
English disclosures on the back of each label that state the
country where the product was manufactured.
"Even if a reasonable customer might infer from the brand name that
L'Oreal originated in Paris, a reasonable customer would not also
conclude that a specific product is made in Paris or elsewhere in
France," said Torres.
"The mere presence of words in a foreign language is insufficient
to mislead a reasonable consumer."
Eshelby has been denied the chance to amend her complaint. [GN]
MADISON SQUARE: Settles Shareholders' Suit Over Rising Cost
-----------------------------------------------------------
Richard N. Velotta of Las Vegas Review-Journal reports that Madison
Square Garden Entertainment Corp. announced last week it has
settled a series of lawsuits from shareholders in connection with
the rising cost of its MSG Sphere at The Venetian.
In a Securities and Exchange Commission filing, the company said it
would pay $48.5 million to four shareholder groups that filed
lawsuits in a class action in the Delaware Court of Chancery.
The company did not admit liability in the settlement. The
plaintiffs alleged that the MSG Networks board of directors and
controlling stockholders breached their fiduciary duties in
negotiating and approving a merger with MSG Entertainment in a
cost-saving move.
Four different shareholder groups filed actions beginning June 29,
2021, and the cases were consolidated October 29, 2021.
Since its groundbreaking in September 2018, the 17,500-seat MSG
Sphere's cost has nearly doubled to $2.2 billion and is expected to
open in September with performances by U2. Construction of the
project, which initially was expected to be completed in 2021, was
delayed by the COVID-19 pandemic and supply chain disruptions.
According to the SEC filing, MSG Networks has a dispute with its
insurers over whether and to what extent there is insurance
coverage for the settlement. Unless those parties settle that
insurance dispute, it is expected to be resolved in a pending
Delaware insurance coverage action. In the interim, and subject to
final resolution of the parties' insurance coverage dispute,
certain of MSG Networks' insurers have agreed to advance $20.5
million to fund the settlement and related class notice costs.
The merger between MSG Networks and MSG Entertainment is different
from a spinoff announced last month in which a new company, to be
known as Sphere Entertainment Co., will oversee the MSG Sphere, MSG
Networks and MSG's Tao Group Hospitality businesses. [GN]
MARATHON DIGITAL: Bids for Lead Plaintiff Appointment Due May 29
----------------------------------------------------------------
Pomerantz LLP of GlobeNewsWire reports that if you are a
shareholder who purchased or otherwise acquired Marathon securities
during the Class Period, you have until May 29, 2023 to ask the
Court to appoint you as Lead Plaintiff in a class action lawsuit
has been filed against Marathon Digital Holdings, Inc. ("Marathon"
or the "Company") (NASDAQ: MARA), and certain officers. The class
action, filed in the United States District Court for the District
of Nevada, and docketed under 23-cv-00470, is on behalf of a class
consisting of all persons and entities other than Defendants that
purchased or otherwise acquired Marathon securities between May 10,
2021 and February 28, 2023, both dates inclusive (the "Class
Period"), seeking to recover damages caused by Defendants'
violations of the federal securities laws and to pursue remedies
under Sections 10(b) and 20(a) of the Securities Exchange Act of
1934 (the "Exchange Act") and Rule 10b-5 promulgated thereunder,
against the Company and certain of its top officials.
If you are a shareholder who purchased or otherwise acquired
Marathon securities during the Class Period, you have until May 29,
2023 to ask the Court to appoint you as Lead Plaintiff for the
class. A copy of the Complaint can be obtained at
www.pomerantzlaw.com. To discuss this action, contact Robert S.
Willoughby at newaction@pomlaw.com or 888.476.6529 (or
888.4-POMLAW), toll-free, Ext. 7980. Those who inquire by e-mail
are encouraged to include their mailing address, telephone number,
and the number of shares purchased.
Marathon operates as a digital asset technology company that mines
digital assets with a focus on the blockchain ecosystem and the
generation of digital assets in the United States ("U.S.").
The complaint alleges that throughout the Class Period, Defendants
made materially false and misleading statements regarding the
Company's business, operations, and prospects. Specifically,
Defendants made false and/or misleading statements and/or failed to
disclose that: (i) the Company overstated the efficacy of its
disclosure controls and procedures and internal control over
financial reporting; (ii) as a result, the Company's revenues and
cost of revenue were materially misstated during the Class Period;
(iii) the foregoing, once revealed, was reasonably likely to have a
material negative impact on the Company's financial condition; and
(iv) as a result, the Company's public statements were materially
false and misleading at all relevant times.
On February 28, 2023, Marathon issued a press release "announc[ing]
. . . that it has cancelled its webcast and conference call for the
fourth quarter and fiscal year 2022, initially scheduled for April
8, 2023, February 28, 2023, at 4:30 p.m. Eastern time, and will
postpone the publication of its corresponding financial results."
That same day, Marathon disclosed receipt of a letter from the U.S.
Securities and Exchange Commission relating to accounting errors in
the Company's previously issued financial statements. The Company
advised investors that the "statements contained in the Company's
Annual Report on Form 10-K for the fiscal year ended December 31,
2021 and the previously issued unaudited condensed consolidated
financial statements for the interim periods in 2022 and 2021 as
contained in the Company's Quarterly Reports on Form 10-Q for the
fiscal periods ended March 31, 2021 and 2022, June 30, 2021 and
2022 and September 30, 2021 and 2022 . . . should no longer be
relied upon" and will be restated.
Also on February 28, 2023, market analyst Seeking Alpha commented
on Marathon's announcement, stating that "[t]he company said its
method for calculating the impairment of digital assets, chiefly
bitcoin [], on a daily basis using a standard cutoff time wasn't in
compliance with a requirement that calls for the intraday low price
to be used," and, as such, "Marathon [] now estimates that both its
revenue and cost of revenue for the year ended Dec. 31, 2021 were
understated. Revenue [. . .], energy, hosting and other, are
expected to increase in the restated 2021 numbers."
On this news, Marathon's stock price fell $0.59 per share, or
8.31%, to close at $6.51 per share on March 1, 2023.
Pomerantz LLP, with offices in New York, Chicago, Los Angeles,
London, Paris, and Tel Aviv, is acknowledged as one of the premier
firms in the areas of corporate, securities, and antitrust class
litigation. Founded by the late Abraham L. Pomerantz, known as the
dean of the class action bar, Pomerantz pioneered the field of
securities class actions. On April 8, 2023, more than 85 years
later, Pomerantz continues in the tradition he established,
fighting for the rights of the victims of securities fraud,
breaches of fiduciary duty, and corporate misconduct. The Firm has
recovered numerous multimillion-dollar damages awards on behalf of
class members. See www.pomlaw.com.
CONTACT:
Robert S. Willoughby
Pomerantz LLP
rswilloughby@pomlaw.com
888-476-6529 ext. 7980 [GN]
MDL 2741: $5.75MM in Atty.'s Fees Awarded in Roundup Liability Suit
-------------------------------------------------------------------
In the case, IN RE: ROUNDUP PRODUCTS LIABILITY LITIGATION This
document related to: Gilmore v. Monsanto Company Case No.
21-cv-8159, Case No. 16-md-02741-VC (N.D. Cal.), Judge Vince
Chhabria of the U.S. District Court for the Northern District of
California rules on the Class Counsel's Motion for Attorney's Fees,
Costs, and Incentive Awards.
In this class action, the Plaintiffs claim they paid more for
Roundup products than they would have been willing to spend if
they'd been warned that the product may cause NHL. The Court
preliminarily approved a settlement agreement, and then class
members submitted claims that would, under the formula set forth in
the agreement, result in a class payout of $12.4 million to $14.2
million. The Class Counsel now seeks $11.25 million in attorneys'
fees, $210,888.10 in litigation expenses, and $5,000 as incentive
awards for each Class Representative, along with settlement notice
and administration costs.
The Class Counsel asserts that a fee award of $11.25 million
reflects the "25% benchmark" -- that is, 25% of the total
settlement amount. In terms of a lodestar cross-check, the Class
Counsel asserts a loadstar of $7.95 million.
Except perhaps in the most unusual of circumstances, Judge Chabbria
holds that it is not how to calculate the 25% benchmark. And, he
says many of the hours were spent on the losing cases identified.
Thus, the lodestar offered by the Class Counsel is as artificial as
their proposed 25% benchmark. If the lodestar were based only on
the work performed in the case, it would be roughly $2.4 million.
The $5.75 million that the Class Counsel will receive, based on the
percentage-of-the-fund method, is plenty, and any larger amount
would be unreasonable.
The Class Counsel also requests $210,888.10 in costs. Most of these
expenses were incurred in cases that were dismissed on the merits,
and class counsel provides no justification why those expenses
should be reimbursed.
Judge Chhabria finds that the Class Counsel simply notes that
courts generally allow for recovery of litigation expenses and
summarily says all the expenses were "necessary and reasonably
incurred." The Counsel just lumped the marketing consultant's fees
with the economic expert's even though they're very different for
purpose of prosecuting a case. So even if the costs incurred in the
dismissed actions benefited the class, the Counsel has not
established that those expenses were truly necessary and
reasonable. The Class Counsel is reimbursed $69,592.05.
The Class Representatives each are awarded $2,000 rather than the
requested $5,000. Judge Chhabria says the claims are insubstantial.
The Class Representatives were not deposed or otherwise made to do
any heavy lifting during the litigation process. This is not the
type of case where the decision to become a plaintiff itself
creates collateral career risks. And there are eight named
Plaintiffs, not just one or two. Under these circumstances,
incentive payments exceeding $16,000 in total ($2,000 for each of
the eight Plaintiffs) would not be warranted.
Accordingly, the Class Counsel is awarded $5.75 million as
attorney's fees. The Class Counsel will be immediately paid 80% of
this amount. After filing the Post-Distribution Accounting, the
Class Counsel must submit a proposed order releasing the remaining
20% of the fee award. It is also awarded $69,592.05 for litigation
expenses, $446,449 for notice costs, and $380,513 for claims
administration. The Class Representatives each are awarded $2,000,
for a sum of $16,000.
The remainder of the $23 million fund will go to the class
members.
A full-text copy of the Court's March 31, 2023 Order is available
at https://tinyurl.com/bdfw9fjh from Leagle.com.
MDL 2741: Settlement in Roundup Liability Suit Wins Final Approval
------------------------------------------------------------------
In the case, IN RE: ROUNDUP PRODUCTS LIABILITY LITIGATION. This
document related to: Gilmore v. Monsanto Company Case No.
21-cv-8159-VC, Case No. MDL 2714, Case No. 3:16-md-02741-VC (N.D.
Cal.), Judge Vance Chhabria of the U.S. District Court for the
Northern District of California grants the Plaintiffs' Motion for
Final Approval of Class Settlement and for Certification of the
Class for Purposes of Settlement.
The matter comes before the Court on Plaintiffs Scott Gilmore,
Julio Ezcurra, James Weeks, Amanda Boyette, Anthony Jewell, Paul
Taylor, Sherry Hanna, and Kristy Williams' Motion for Final
Approval. The Court has reviewed the Motion and the supporting
papers, including the Parties' Second Amended Settlement
Agreement.
Judge Chhabria grants the Plaintiffs' Motion. He finally approves
the Settlement and terms and conditions set forth therein. He is
awarding $5.75 million in attorneys' fees, not the $11.25 million
requested by the Class Counsel.
Judge Chhabria orders that the following class (referred to as the
Settlement Class or Class), which was preliminarily certified, will
remain finally certified for settlement purposes: All Persons in
the United States who, during the Class Period, purchased Products
in the United States other than for resale or distribution,
excluding (i) judicial officers and associated court staff assigned
to this case, and their immediate family members; (ii) past and
present (as of the Effective Date) officers, directors, and
employees of Monsanto; and (iii) all those otherwise in the
Settlement Class who timely and properly exclude themselves from
the Settlement Class pursuant to the Settlement Agreement and in
the manner approved by the Court and set forth in the Class
Notice.
The language of the Settlement Agreement can be found on the
Court's publicly available docket at Dkt. No. 94-1, Ex. 1. The
Release set forth in the Settlement is incorporated in the Order
and will become binding and effective on all Class Members upon the
Effective Date.
The Claims Administrator and the Parties are directed to implement
and carry out the Settlement in accordance with the terms and
provisions thereof.
Upon entry of the Order, the Released Persons will be discharged of
and from all liability for the Class Released Claims.
Within 21 days after all funds have been paid pursuant to the
Settlement, the Parties will file a Post-Distribution Accounting,
which will be posted on the Settlement Website, providing the
following information: the total settlement fund; the number of
claims; the number and percentage of objections; the average,
median, maximum, and minimum recovery per claimant, the methods of
notice and methods of payment to class members, the number and
value of any uncashed checks to Class Members, any amounts
distributed to a cy pres recipient.
Twenty percent of the attorneys' fees awarded will be held back
pending the filing of a Post-Distribution Accounting by the Class
Counsel. With the Post-Distribution Accounting, the Class Counsel
should submit a proposed order releasing the remainder of the
fees.
In light of his Order, Judge Chhabria dismisses the case with
prejudice.
Without affecting the finality of that Judgment in any way, the
Court retains continuing jurisdiction over (a) implementation and
administration of the Settlement; and (b) the Parties, the Claims
Administrator, and the Class Members for the purpose of construing,
enforcing, and administering the Settlement Agreement and all
orders and judgments entered in connection therewith.
A full-text copy of the Court's March 31, 2023 Order is available
at https://tinyurl.com/n8h9ws52 from Leagle.com.
MEAD JOHNSON: Clean Label Suit Remanded to D.C. Superior Court
--------------------------------------------------------------
Judge Tanya S. Chutkan of the U.S. District Court for the District
of Columbia grants the Plaintiff's motion to remand the case, CLEAN
LABEL PROJECT FOUNDATION, Plaintiff v. MEAD JOHNSON & COMPANY,
LLC., Defendant, Civil Action No. 20-cv-3231 (TSC) (D.D.C.), to the
D.C. Superior Court.
Clean Label has brought the action on behalf of itself and the
"general public," against the Defendant, alleging deceptive
labeling, marketing, and sale of certain baby formula products, in
violation of the District of Columbia's Consumer Protection
Procedures Act ("CPPA"), D.C. Code Section 28-3901, et seq. The
Plaintiff seeks injunctive relief and punitive damages. In short,
it claims that the Defendant markets its products as supporting
infant brain health, but the products actually contain harmful
neurotoxins. The Plaintiff originally brought the suit in D.C.
Superior Court, but the Defendant removed it to this Court. The
Plaintiff now seeks to have the action remanded.
The Plaintiff is a non-profit organization under D.C. Code Section
28-3905(k)(1)(C), that purchased the Defendant's products to test
or evaluate their qualities. The tested products include:
Nutramigen Hypoallergenic Ready to Use Infant Formula with Iron (32
fl. oz), Neuro Pro Infant Formula Milk-Based with Iron (20.7 oz);
EnfaCare - Neuro Pro (12.8 oz), Reguline Infant Formula -
Milk-Based with Iron (12.4 oz), ProSobee Soy Infant Formula for
Sensitive Tummy (12.9 oz), and Premium Infant & Toddler Formula -
Toddler Transitions (20 oz).
The Plaintiff alleges that these products contain dangerous levels
of multiple known neurotoxins including lead, Bisphenol A, and
Cadmium at "unusually high" levels relative to competitive infant
formula brands. It claims that because the Defendant touts brain
health in its marketing, D.C. consumers are led to believe that the
Product is safe for their baby and free of concerning levels of
contaminants and are enticed to purchase the Product over
competitors' products based on these false and misleading claims.
It further pleads that the Defendant either knew or should have
known that its marketing representations regarding its products'
effects on infant brain health are false.
The Plaintiff filed its Complaint in D.C. Superior Court on Aug.
21, 2020, on behalf of itself and the general public of the
District of Columbia, pursuant to D.C. Code Section
28-3905(k)(1)-(2). It also alleges that the Defendant's products
are adulterated under D.C. Code Section 48-103. The Defendant filed
a timely notice of removal to this Court, arguing that the action
is removable pursuant to 28 U.S.C. Sections 1331, 1332 because a
federal question is implicated, and this is a class action to which
the Class Action Fairness Act ("CAFA") applies.
Having reviewed the relevant caselaw, Judge Chutkan declines to
hold that representative CPPA actions seeking only unspecified
punitive damages and injunctive relief are removable under CAFA.
Notably absent from the Defendant's briefing is any explication of
any case, in this Circuit or any other, in which a court has found
that a state statute is a "similar State statute" within the
meaning of CAFA. Judge Chutkan opines that the Defendant's failure
to do so is not surprising given that courts in this district have
found repeatedly that the CPPA is not such a statute. As then-Chief
Judge Howell put it in Clean Label, "the collective wisdom
reflected in these decisions is compelling, and defendant offers no
reasons to stray from this well-trod path."
Even amidst this extensive federal regulatory landscape, Judge
Chutkan opines that the Defendant has not shown that the suit
involves a federal law, regulation, or agency action approving the
advertising and marketing of its products. The fact that the FDA
has approved the use of the ingredients at issue does not mean that
the advertising of these formulas is not misleading. Because the
Complaint pleads no federal question, the Court does not have
federal question jurisdiction.
Finally, while the Defendant did not explicitly remove the case
under 28 U.S.C. Section 1332(a) -- the traditional diversity
statute -- and has made no specific arguments in support of removal
under that statute, its Notice of Removal does cite 28 U.S.C.
Section 1332.
Judge Chutkan finds that the Complaint does not allege where the
parties are domiciled, but, regardless of whether there is complete
diversity between the parties, the amount in controversy is not met
because the Plaintiff seeks only injunctive relief and unspecified
punitive damages. Furthermore, because the non-aggregation
principle applies to punitive damages when assessing the amount in
controversy for purposes of diversity jurisdiction, any estimate of
punitive damages must be divided by the number of persons
represented in the action. And, assuming that the suit could even
be maintained as a class action, Judge Chutkan is satisfied that,
using the non-aggregation principle, punitive damages would not be
high enough to meet the amount in controversy threshold.
For these reasons, the Plaintiff's motion to remand is granted. The
case is remanded to the District of Columbia Superior Court. A
corresponding Order accompanies the Memorandum Opinion.
A full-text copy of the Court's March 31, 2023 Memorandum Opinion
is available at https://tinyurl.com/3hsu6j3z from Leagle.com.
MEDLINE INDUSTRIES: Fails to Pay Proper Wages, Garnere Alleges
--------------------------------------------------------------
NATHAN GARNERE, individually and on behalf of all others similarly
situated, Plaintiff v. MEDLINE INDUSTRIES, L.P.; and MEDLINE
INDUSTRIES, INC., Defendants, Case No. 7:23-cv-02840 (S.D.N.Y.,
April 5, 2023) seeks to recover from the Defendants unpaid wages
and overtime compensation, interest, liquidated damages, attorneys'
fees, and costs.
Plaintiff Garnere was employed by the Defendants as a loader.
MEDLINE INDUSTRIES INC. manufactures and distributes health care
supplies. The Company markets wound and skin care products, gloves,
face masks, isolation gowns, monitors, reusable textiles, durable
medical equipment, incontinence products, sterile products,
electrosurgical products, and housekeeping supplies. [BN]
The Plaintiff is represented by:
Yitzchak Kopel, Esq.
Alec M. Leslie, Esq.
BURSOR & FISHER, P.A
888 Seventh Avenue
New York, NY 10019
Telephone: (646) 837-7150
Facsimile: (212) 989-9163
Email: ykopel@bursor.com
aleslie@bursor.com
MGM RESORTS: Court Dismisses Scherer Suit for Lack of Jurisdiction
------------------------------------------------------------------
In the case, LEANE SCHERER, individually and, on behalf of all
others similarly situated, Plaintiff v. MGM RESORTS INTERNATIONAL,
Defendant, Civil No. 1:22cv258-HSO-BWR (S.D. Miss.), Judge Halil
Suleyman Ozerden of the U.S. District Court for the Southern
District of Mississippi, Southern Division, grants MGM's Motion to
Dismiss.
On Sept. 21, 2022, Scherer, individually and on behalf of all
others similarly situated, filed a Complaint in the Court,
advancing state-law claims for breach of contract, conversion,
unjust enrichment, and quantum meruit against MGM". The Plaintiff
invokes the Court's diversity jurisdiction pursuant to the Class
Action Fairness Act ("CAFA"), 28 U.S.C. Section 1332(d), and has
since amended her Complaint.
The Defendant operates several casinos across the United States,
including the Beau Rivage Resort and Casino in Biloxi, Mississippi.
The allegations in the Amended Complaint arise from the cash-out
system utilized at the Defendant's casinos for players who gamble
on slot machines.
The Plaintiff's central complaint is that MGM's kiosks will only
dispense cash. Accordingly, when a player inserts the voucher
printed from a slot machine into the kiosk, the kiosk rounds down
to the nearest dollar and pays that amount in cash. A player is
then given the option to either donate the leftover change to the
MGM Resorts Foundation, a 501(c)(3) foundation controlled by the
Defendant, or to attempt to redeem the change. If a player wishes
to redeem her change, the kiosk prints another voucher, known as a
"TRU Ticket," which a player can take to the casino's main
cashier's window, commonly called the "cage," to redeem for the
corresponding amount of cents.
Prior to the implementation of the TRU Ticket system, the kiosks
dispensed coins in addition to cash. However, the Defendant changed
this practice during the COVID-19 pandemic, citing a coin shortage,
and now the sole method for obtaining coins upon cashing out of a
slot machine is to follow this multistep process of receiving a
voucher from the machine followed by a TRU Ticket from the kiosk
and then redeeming the TRU Ticket at the cage.
The Plaintiff alleges that this TRU Ticket system is "a vehicle for
converting players' funds into Casino funds" because the Defendant
does not provide adequate notice to players on how to redeem their
coins, and that some of the donated funds were improperly used to
provide financial support to furloughed MGM employees during the
COVID-19 pandemic.
The Plaintiff has filed suit against the Defendant on behalf of
herself and hundreds of thousands of Casino patrons who have been
deprived, little by little, of millions of dollars since the
Defendant's adoption of its no-change policy. She alleges that the
Defendant's cash-out system breaches a contract between the casino
and its players by prohibiting the players from cashing out their
gaming credits as originally agreed.
In addition, she asserts that the Defendant's actions constitute
conversion by concealing the manner for recovering change and
making it logistically impossible and logically improbable that
thousands of players would wait in line at the cage to retrieve
their change. In the alternative, she raises claims for unjust
enrichment and quantum meruit. In total, she claims that the TRU
Ticket system has led to over $5 million in cents being unlawfully
obtained or retained by MGM.
MGM has filed the present Motion to Dismiss pursuant to Federal
Rules of Civil Procedure 12(b)(1) and (6), raising two challenges
to the Court's subject-matter jurisdiction and alternatively
contending that the Plaintiff has failed to state a claim for
relief. Regarding the jurisdictional challenges, it first argues
that the amount-in-controversy does not exceed $5 million as is
required to establish jurisdiction under CAFA; and it has submitted
two Exhibits in support of this position. In addition, MGM contends
that the Plaintiff's claims seek payment of a gaming debt which is
void and unenforceable in Mississippi courts and can only be
addressed by the Mississippi Gaming Commission. As a result, the
Court cannot hear the Plaintiff's claims because Mississippi courts
would also lack jurisdiction over them.
As for its merits challenge, MGM maintains that: (1) the alleged
facts do not demonstrate the existence of a contract that was
breached; (2) Plaintiff did not make a claim of title over the
change and therefore cannot claim conversion; (3) her quantum
meruit claim is meritless because she does not allege that she
provided goods or services that went unpaid; and (4) the Defendant
was not unjustly enriched because the Plaintiff does not allege an
implied-in-law promise.
The Plaintiff's Response counters that Mississippi law cannot
deprive the Court of federal diversity jurisdiction by granting
exclusive jurisdiction to the Mississippi Gaming Commission and to
the extent that Mississippi law creates an administrative
exhaustion requirement, it cannot be jurisdictional and compliance
should be excused as futile and inadequate. Next, she asserts that
it is facially apparent from the Amended Complaint that the
putative class' claims exceed $5 million due to the number of
members and the damages sought.
On the merits, the Plaintiff asserts that the kiosks are a service
that the casino patron is aware of and relies upon and are an
implied term of the contract of gambling, and that MGM breached
this contract by not providing coins at the kiosk or giving
sufficient notice of where to redeem the TRU Tickets. She further
claims that MGM breached a contract with the players who chose to
donate their money to the MGM Resorts Foundation because some of
that money ultimately went to furloughed MGM employees.
First, Judge Ozerden examines whether the Plaintiff's failure to
seek relief from the Mississippi Gaming Commission prohibits the
Court from exercising subject-matter jurisdiction over her claims.
He finds that the Court lacks subject-matter jurisdiction over the
Plaintiff's claims because the Gaming Commission has exclusive
jurisdiction over such disputes in Mississippi, and the Plaintiff
has not exhausted the Gaming Commission's administrative process.
Next, Judge Ozerden examines whether the putative class satisfies
CAFA's amount in controversy requirement. Faced with the
Defendant's challenge to the Plaintiff's allegations and the
evidence it offers in support of its contentions, he finds that the
Plaintiff has provided the Court with only vastly overinclusive
amounts and requests it to speculate as to what portion of those
figures are possibly in controversy. He also notes that to the
extent the Plaintiff has further qualms with the Defendant's data
beyond those already discussed, the Plaintiff never requested
jurisdictional discovery to seek whatever additional records she
believes the Defendant holds that would show the evidence of
another $4 million in unredeemed TRU Tickets.
Considering the record before the Court, Judge Ozerden cannot
merely accept the Plaintiff's speculative claims of damages and it
appears legally certain that the requisite amount in controversy is
not satisfied. Accordingly, the Court lacks subject-matter
jurisdiction over the Plaintiff's claim.
To the extent he has not specifically addressed any of the parties'
remaining arguments, Judge Ozerden has considered them and
determined that they would not alter the result. Therefore, he
grans MGM's Motion to Dismiss. He dismisses the claims of Scherer,
on behalf of herself and all others similarly situated, without
prejudice for lack of subject-matter jurisdiction. The Court will
enter a separate Final Judgment in accordance with Federal Rule of
Civil Procedure 58.
A full-text copy of the Court's April 4, 2023 Memorandum Opinion &
Order is available at https://tinyurl.com/2cajzrrz from
Leagle.com.
MIRAMAR, FL: Files Response of Class Suit Over Water Treatment
--------------------------------------------------------------
Anna McAllister of CBS News reports that it's a common tale for
many homeowners in Miramar, busted pipes leading to thousands of
dollars worth of damage.
Residents say what starts as a tiny water mark on the ceiling or
wall quickly becomes a huge problem.
"The pipes just have pin-prick breaks and sometimes you just see a
small water mark and it will grow and grow," said Miramar resident
Diane Moore-Eubanks.
These corroded copper pipes are from one Miramar man's home, who
wished to remain anonymous.
He said he started having serious issues with his pipes about two
years ago.
"You're seeing the pipes here. I mean, all the green spots, you can
see where leaks are coming down and the little green spots. What
happens is they get calcified, when they're small pinhole leaks,
and so they'll stop leaking for a while but then once you
de-pressure your pipes, and re-pressure your pipes, it'll push that
calcium out and it will start leaking again."
This homeowner had to replace all the copper pipes in his home and
was forced out of the house for months because of mold and water
damage.
"What we found through testing and the experts that we retained is
that there is a chemical reaction that happens when this treated
water coming out of this west water treatment plant hit copper
pipes," said attorney Leslie Kroeger.
Kroeger, a partner at Cohen Milstein Sellers & Toll, filed a class
action lawsuit on April 5, 2023 on behalf of several other Miramar
residents who are experiencing similar problems.
Impacted residents can click here to share their information.
The lawsuit alleges the city of Miramar, and its West Water
Treatment Plant are responsible.
"They blamed it on improper installation of the pipes, so someone
else's fault, not there's. Or improper grounding, which would go to
installation, which again, they're saying not our fault, not our
fault. We don't think that to be true. We believe that the
allegations we are making are correct".
UPDATE: On Apri 6, 2023, The City of Miramar responded to the
class-action lawsuit:
"The City of Miramar is in receipt of the complaint filed regarding
pinhole leaks found in copper pipes allegedly caused by improper
water treatment. The City's two (2) Water Treatment Plants are
regulated by the Florida Department of Environmental Protection
(FDEP), and the United States Department of Environmental
Protection (USDEP). Samples are collected, tested, and reported on
a monthly, quarterly, and annual basis, and the water consistently
meets regulatory standards.
City Manager Dr. Roy Virgin stated, "The City of Miramar values its
residents and is sensitive to their concerns regarding copper pipe
issues. The City has consistently assured residents and businesses
that the water treatment facilities are up to par and does not
cause damage to pipes. The case filed is being reviewed by the City
Attorney's office, who will respond through the appropriate
channels."
Currently, The City offers a loan program for residents affected by
copper pipe pinhole leaks for a maximum of $10,000 at 1% interest
rate with a 5-year term. In 2021 two workshops were conducted
virtually to educate residents on the safety of the City's water
and in addition, a dedicated webpage was created with videos, water
quality report and FAQs:Miramarfl.gov/CopperPipePinholeLeaks. Water
Quality FAQs were done and an offer was made to residents to
schedule in-home testing with follow ups free of cost.
The City of Miramar continues to provide safe drinking water that
meets or exceeds Federal and State standards and continuously
monitors its water facilities and acts accordingly if it becomes
aware of any issue that affects its water treatment and quality"
[GN]
MOLSON COORS: Agrees to Settle Mislabeling Class Suit for $9.5-Mil.
-------------------------------------------------------------------
Top Class Actions reports that Molson Coors Beverage Co. has agreed
to a $9.5 million class action lawsuit settlement to resolve claims
its Vizzy hard seltzer products were misleadingly labeled as having
"antioxidant vitamin C from acerola superfruit."
The settlement class is made up of anyone who purchased any Vizzy
hard seltzer beverage in the United States between Jan. 1, 2020,
and March 10, 2023, except for the purpose of resale.
Molson Coors allegedly fortified its Vizzy products with an
"insignificant amount" of vitamin C, according to one of three
class action lawsuits taking issue with the product. The company
then labeled and advertised Vizzy as containing vitamin C from a
"superfruit." The plaintiffs say this marketing is misleading and
dangerous.
Molson Coors is a beverage company that produces many popular
alcoholic beverages, including those from brands such as Blue Moon,
Hamm's, Topo Chico, Coors and Foster's, among others.
The company has not admitted any wrongdoing but has agreed to
settle the claims for $9.5 million.
Class members who file a valid and timely claim will receive a cash
payment for any product they purchased:
$5 per 24-pack unit purchased
$3 per 12-pack unit purchased
$0.75 per single can unit purchased
The maximum possible payment for consumers who submit a claim
without proof of purchase is $15 per household.
Each claimant who files a valid claim is expected to receive a
minimum payment of $6, though that amount may be adjusted down
depending on the number of claims and other factors.
Any funds that remain in the settlement fund will be donated to a
nonprofit organization.
In addition to the monetary relief, Molson Coors also has agreed to
permanently remove the claim "with antioxidant vitamin C from
acerola superfruit" from all labeling and marketing materials for
Vizzy.
The deadline to opt out of the settlement is June 6, 2023. The
deadline to submit a written objection is May 19, 2023.
A final fairness hearing is scheduled to take place July 12, 2023.
The deadline to file a claim form is June 6, 2023.
Who’s Eligible
Anyone who purchased any Vizzy hard seltzer beverage in the United
States between Jan. 1, 2020, and March 10, 2023, except for the
purpose of resale.
Potential Award
Varies.
Proof of Purchase
A receipt or other documentation from a third-party commercial
source, such as a store, that reasonably establishes the fact and
date of purchase of the covered product during the class period in
the United States.
Claim Form Deadline
06/06/2023
Case Name
Marek, et al. v. Molson Coors Beverage Co. USA LLC, Case No.
21-cv-07174-WHO, in the U.S. District Court for the Northern
District of California
Williams, et al. v. Molson Coors Beverage Co. USA LLC, Case No.
21-cv-50207, in the U.S. District Court for the Northern District
of Illinois
Eyzaguirre, et al. v. Molson Coors Beverage Co. USA LLC, Case No.
22-cv-60889, in the U.S. District Court for the Southern District
of Florida
Final Hearing
07/12/2023
Settlement Website
VizzySettlement.com
Claims Administrator
Vizzy Settlement Administrator
1650 Arch St., Suite 2210
Philadelphia, PA 19103
844-509-3005
Class Counsel
Hayley Reynolds
Gutride Safier LLP
100 Pine Street, Suite 1250
San Francisco, CA
415-639-9090
Defense Counsel
Christopher Cole
Katten, Muchin & Rosenman LLP
2900 K Street, N.W., Suite 200
Washington, DC 20007
202-625-3550 [GN]
NEW YORK: Denial of Judgment on Pleadings in Matzell Suit Upheld
----------------------------------------------------------------
In the case, MICHAEL MATZELL, individually and on behalf of all
others similarly situated, Plaintiff-Appellee v. ANTHONY J.
ANNUCCI, Acting DOCCS Commissioner, JEFFREY McKOY, Deputy DOCCS
Commissioner, BRUCE YELICH, Superintendent, STANLEY BARTON, Deputy
Superintendent of Programs, KAY HEADING SMITH, Coordinator,
ELIZABETH LARAMAY, JANE BOYEA, Coordinator, Defendants-Appellants,
JOHN AND JANE DOES 1-10, Defendants, Case No. 21-2792-pr (2d Cir.),
the U.S. Court of Appeals for the Second Circuit affirms in part
and reverses in part the district court's denial of the Defendants'
a motion for judgment on the pleadings.
On July 9, 2015, Matzell was sentenced in New York state court to
four years' imprisonment followed by three years of post-release
supervision for a controlled substance offense. The sentencing
judge, pursuant to his authority under New York Penal Law Section
60.04(7), ordered Matzell's enrollment in the Shock Incarceration
Program, a six-month bootcamp program that, if successfully
completed, allows inmates to be released from prison early.
Once Matzell became time-eligible for enrollment in Shock, the
Defendants-Appellants -- the Acting Commissioner and Deputy
Commissioner of the New York State Department of Corrections and
Community Supervision ("DOCCS") and five staff members at the
correctional facility where Matzell was housed -- denied his
admission to Shock because of disciplinary "tickets" he had
received for drug use while in prison.
On Nov. 25, 2020, Matzell brought a 42 U.S.C. Section 1983 putative
class action against the Defendants alleging that they violated his
rights under the Eighth and Fourteenth Amendments. The Defendants
filed a motion for judgment on the pleadings, contending that they
are entitled to qualified immunity as a matter of law.
On Oct. 7, 2021, the district court denied the Defendants' motion,
holding that Matzell plausibly alleged a violation of clearly
established constitutional law. In doing so, it did not consider
whether Matzell sufficiently pleaded violations of his
constitutional rights, as the Defendants did not address that part
of the qualified immunity inquiry. The district court held,
however, that in light of the Defendants' awareness of the DLRA,
the DRLA's plain language, existing Second Circuit precedent, and
earlier state court decisions, Matzell plausibly alleged that the
Defendants' refusal to enroll him in Shock violated clearly
established law.
The Defendants appeal.
Matzell alleges that the Defendants violated his Eighth and
Fourteenth Amendment rights by denying his judicially ordered
enrollment in Shock. The Defendants contend that they are entitled
to qualified immunity and ask the Court to reverse the district
court's denial of their motion for judgment on the pleadings.
The Second Circuit states that qualified immunity shields
government officials from liability for money damages for violation
of a right under federal law if their conduct does not violate
clearly established statutory or constitutional rights of which a
reasonable person would have known. It allows government officials
to make reasonable judgments and is said to protect "all but the
plainly incompetent or those who knowingly violate the law.
Qualified immunity bars a plaintiff's claim unless (1) the official
violated a statutory or constitutional right, and (2) that right
was clearly established at the time of the challenged conduct.
First, the Second Circuit examines the doctrine of qualified
immunity. Then, it discusses the Eighth Amendment and Fourteenth
Amendment claims, concluding that the Defendants are entitled to
qualified immunity on the Eighth Amendment claim but not on the
Fourteenth Amendment claim.
The Second Circuit concludes that Matzell's Eighth Amendment claim
fails at the second prong of the qualified immunity analysis: it
was not clearly established at the time of the Defendants' conduct
that denying a prisoner the opportunity to obtain early release
from his sentence of confinement by denying judicially ordered
entry into the Shock program would violate the Eighth Amendment.
Thus, the Second Circuit reverses the district court's denial of
the Defendants' motion for judgment on the pleadings as to the
Eighth Amendment claim.
Regarding Matzell's Fourth Amendment claim, the Second Circuit
considers both prongs of the qualified immunity analysis: first,
whether Matzell plausibly alleged a violation of his Fourteenth
Amendment substantive due process right, and second, if so, whether
that right was clearly established.
The Second Circuit concludes that Matzell has plausibly alleged
that the Defendants violated a clearly established Fourteenth
Amendment right. Matzell has alleged that he was sentenced to
enrollment in Shock, and that the Defendants illegally denied his
enrollment despite the provisions of New York statutory law that
explicitly deprived them of their authority to deny admission to
one sentenced to Shock in these circumstances. Thus, Matzell has
plausibly alleged the violation of a due process right.
Matzell was also deprived of the opportunity to secure his release
506 days earlier than his actual releasee. His four-year custodial
sentence was increased by almost a third. Hence, Matzell plausibly
alleged that the Defendants' actions rose to the level of
deliberate indifference in violation of his substantive due process
rights.
Given the liberty interest at stake and the clarity of the
statutory law, Matzell plausibly alleged that the Defendants'
actions were egregious, shocking to the conscience, and
unreasonable and, thus, Matzell plausibly alleged that the
Defendants violated his Fourteenth Amendment substantive due
process rights.
Lastly, the Second Circuit holds that Matzell has plausibly alleged
that his substantive due process right to have his sentence
implemented consistent with the sentencing court's order was
clearly established and that this right was violated when the
Defendants essentially extended his sentencing by refusing to
enroll him in Shock when he was eligible. Thus, it affirms the
district court's denial of the Defendants' motion for judgment on
the pleadings as to the Fourteenth Amendment claim.
For the reasons it stated, the Second Circuit affirms the district
court's denial of the Defendants' motion for judgment on the
pleadings as to the Fourteenth Amendment claim, it reverses the
district court's denial of the Defendants' motion for judgment on
the pleadings as to the Eighth Amendment claim, and it remands for
further proceedings.
A full-text copy of the Court's April 4, 2023 Order is available at
https://tinyurl.com/mv8ay5ec from Leagle.com.
LAURA ETLINGER, Assistant Solicitor General (Barbara D. Underwood,
Solicitor General, and Jeffrey W. Lang, Deputy Solicitor General,
on the brief), for Letitia James, Attorney General of the State of
New York, Albany, New York, for the Defendants-Appellants.
DEBRA L. GREENBERGER -- dgreenberger@ecbawm.com -- (Katherine R.
Rosenfeld -- krosenfeld@ecbawm.com -- and Vivake Prasad --
vprasad@ecbawm.com -- on the brief), Emery Celli Brinckerhoff Abady
Ward & Maazel, LLP, New York, New York, for the
Plaintiff-Appellee.
NEW YORK: Faces 2nd Class Suit Over Nursing Home COVID Deaths
-------------------------------------------------------------
Jacob Geanous of New York Post reports that disgraced governor
Andrew Cuomo's "unmitigated greed" and mismanagement of the
COVID-19 pandemic led to the "needless" deaths of thousands of
elderly New Yorkers, a Nassau man whose mother and father died from
the virus claimed in court.
Cuomo, his top aide Melissa DeRosa, and state and health officials
also exhibited "deliberate indifference" toward nursing home
residents, leading to as many as 15,000 avoidable COVID deaths,
Sean Newman claimed in a lawsuit filed in Brooklyn Federal Court on
March 28.
Those deaths include Michael and Dolores Newman, who died weeks
apart in early 2020, their son said.
Sean Newman's dad Michael Newman, 84, died at the Grandell
Rehabilitation and Nursing Center in Long Beach on March 29 that
year, his son said.
His mom Dolores, 78, died two weeks later at the Long Island Living
Center in Queens, according to the filing.
"It was not only Governor Cuomo's pride that was leading to
thousands of needless deaths, but his unmitigated greed as well,"
Sean Newman claimed in the litigation, alleging the former governor
"tailored his policies and actions to generate material" for his $5
million book deal.
Newman is married to Fox News meteorologist Janice Dean, who was an
outspoken critic of Cuomo's policy requiring nursing homes to take
COVID-positive patients.
Newman is the second person to sue the former governor and DeRosa
over the issue.
Dan Arbeeny, whose father Norman died of the virus at the Cobble
Hill Health Center on April, 21, 2020, made allegations similar to
Newman's last April.
Arbeeny initially represented himself in the case also filed in
Brooklyn Federal Court, but lawyers Jonna Spilbor and Michael
Kasanoff joined his the case as his attorneys in September. Spilbor
and Kasanoff are also representing Newman in his class action
case.
"Both Arbeeny and Sean Newman want truth and justice here," said
Kasanoff.
Cuomo's attorney, Rita Glavin, filed a motion on March 31 claiming
that Arbeeny did not prove the former governor was personally
responsible for the deaths and that he should be entitled to
qualified immunity, which shields government officials from
lawsuits if they were acting in the scope of their job.
Judge DeArcy Hall has yet to rule on the motion to dismiss.
Rich Azzopardi, a spokesperson for Cuomo, told The Post the claim
that Cuomo let his book deal influence his actions is "False, wrong
and the product of the furthest depths of right-wing paranoia."
"It's unfortunate that people's pain continues to be politicized
and weaponized in order to distort the truth," said Azzopardi.
"This suit is meritless and we expect any fair hearing in a court
of law will also bear this out." [GN]
NEW YORK: Faces Class Suit Over Mismanaged Rental Subsidy Program
-----------------------------------------------------------------
Robbie Sequeira of Bronx Times reports that two Bronx tenants are
part of an eight-plaintiff class action lawsuit filed against the
city's Department of Social Services (DSS) alleging the city agency
unlawfully terminated and failed to renew rent subsidies and
housing benefits intended to protect eligible tenants from eviction
and homelessness.
There are two rent supplement programs administered by DSS. FHEPS
allots cash assistance for tenants with children who have been
evicted or are facing eviction, lost their housing due to a
domestic violence situation, or have lost their housing because of
health or safety issues. The other subsidy, CityFHEPS, the only
city-funded rental assistance in the country, is aimed at
preventing at-risk households from entering city shelters.
Both FHEPS recipients are required to complete an annual
recertification, and DSS officials told the Bronx Times that
"systems are in place" to ensure that they receive timely
reminders. However, the lawsuit -- filed on April 5 in New York
Supreme Court by The Legal Aid Society and law firm Hughes Hubbard
& Reed LLP -- alleges that DSS failed to renew household subsidies
in a timely manner or notice, which led to rental payments and
other benefits being terminated without notice.
Bronx plaintiffs Jatnna Aquino and Nakisha Rieara, had both been
FHEPS recipients for several years, but claim they did not receive
timely notice of a change in their benefits or an increase in cash
assistance when they provided DSS notice of their rise in rent in
2022.
In October 2022, three months after Aquino re-certified her
information for cash assistance, her FHEPS supplement was removed
without notice or information, the suit alleges. By March, Aquino
-- who lived in her Bedford Park apartment for seven years without
payment issues -- was six months behind in rent payments and
received an eviction notice.
Rieara, who lives with her 16-year-old son in the eviction-heavy
Fordham Heights area, is disabled. Rieara's cash assistance dried
up in August 2022 when she received notice that she failed to
recertify. However, Rieara claims she never received a notice
informing her that she needed to recertify, but reapplied, which
led to her case reopening later that fall.
In July, Rieara signed a rent-stabilized renewal lease, which
provided for an increase in her rent that went into effect in
November. According to court documents, when Rieara contacted city
officials in October that her rent was increasing, the agency
failed to modify her FHEPS subsidy.
Rieara owes rental arrears based on the change in her rent and
could be sued for the balance at any time, according to attorneys.
In some cases, attorneys claim, the families in these programs did
not receive notice that their rent is no longer being paid, and
learned of the problem only when they received eviction papers from
their landlords.
"So (tenants) are providing the information to the city that they
need to be providing, but they are not getting the benefits that
they're entitled to get in return," said Emily Lundgren, an
attorney at The Legal Aid Society. "The households we brought this
case on behalf of, they've already been found eligible for these
programs . . . and now they're losing the benefits and are back in
the same situation, which was the whole reason why they got the
voucher in the first place."
DSS has made changes to their rent subsidy programs last year that
included expanding CityFHEPS eligibility to include single adults
working full-time on minimum wage, even if their income is slightly
higher than 200% of the federal poverty level.
Other changes included reducing the monthly contribution by
CityFHEPS tenants who move into single-room occupancy units from
30% of their income to a maximum of $50 per month.
"Whenever (DSS) learns of any issues with annual recertifications,
we promptly investigate the unique circumstances of each case and
work to address them," a DSS spokesperson said in a statement to
the Bronx Times. "This administration has implemented a wide range
of reforms to reduce administrative burdens for vulnerable New
Yorkers while strengthening and expanding access to CityFHEPS."
DSS said that landlords could miss payments if the tenant does not
submit the annual CityFHEPS recertification timely, correctly or to
the right place. But sometimes, the error might be on the
landlord's end, city officials said, attributing the unpaid monthly
30% tenant portion as missing payments from DSS. [GN]
NEW YORK: Faces Class Suit Over Prolonged Solitary Confinement
--------------------------------------------------------------
Mohamed Taguine of NYCLU reports that the New York Civil Liberties
Union and Prisoners' Legal Services of New York on April 5, 2023
filed a class action lawsuit in state supreme court against New
York State Department of Corrections and Community Supervision
(DOCCS) for illegally subjecting people to prolonged solitary
confinement in violation of the Humane Alternatives to Long-Term
Solitary Confinement Act (HALT), passed in 2021. Solitary
confinement is the most extreme form of punishment used in the
United States outside of the death penalty and causes severe
trauma, while also being linked to higher rates of recidivism and a
reduction in public safety. Following decades of advocacy from the
NYCLU, partner organizations, survivors of solitary confinement and
their families, New York was the first state to codify the United
Nations Mandela Rules into law, which restrict the use of solitary
confinement to exceptional circumstances.
HALT prohibits segregated confinement -- solitary confinement in
excess of 17 hours per day -- exceeding 15 days under any
circumstances, and places strict limits on solitary confinement
exceeding three consecutive days, or six days in any 30-day period.
Yet DOCCS is holding individuals in segregation beyond the
fifteen-day maximum for a wide range of behavior that does not pose
imminent risk to the facility's security. A recent study by the
Correctional Association of New York, an independent organization
that monitors prison conditions, found "numerous departures from
basic adherence" to HALT, in some cases resulting in individuals
being placed in solitary confinement for up to six times longer
than the law allows.
The lawsuit names plaintiffs Fuquan Fields and Luis Garcia,
representing a class of individuals currently incarcerated in New
York who have been illegally subjected to solitary confinement.
Fields and Garcia also represent an untold number of class members
who will be placed in extended segregation in the future and be
subject to the same illegal treatment.
"I've been held in solitary confinement before, and it took a very
negative toll on my mental health. It's overwhelming," said
plaintiff Fuquan Fields. "I don't meet the HALT criteria to be sent
back there, yet DOCCS has sentenced me to another 120 days in the
box."
"I was sentenced to 730 days in solitary confinement. I have so
much time in there that sometimes it feels like I'm never going to
get out," said plaintiff Luis Garcia. "Under the HALT Act, DOCCS
shouldn't be treating me this way. I want DOCCS to stop acting like
it is above the law."
Solitary confinement that lasts more than 15 consecutive days is
recognized by the United Nations and various human
rights organizations as torture. In 2016, the National Commission
on Correctional Health Care issued guidance to correctional
health officials explaining that long-term solitary is "inhumane,
degrading treatment, and harmful to an individual's health." Even
short-term stays can lead to permanent psychological damage and
suicidal ideation. While prolonged solitary is harmful to everyone
who experiences it, it is especially dangerous for certain
groups, including those 21 or younger and 55 or older, pregnant
people, people with disabilities, and people with mental illness.
"Solitary confinement has inflicted enduring harm on generations of
incarcerated New Yorkers and remains the gravest humanitarian
crisis in our state's prisons on April 5, 2023," said Antony
Gemmell, Director of Detention Litigation at the New York Civil
Liberties Union. "In enacting HALT, the Legislature took decisive
steps to confront that harmful legacy, speaking with unmistakable
clarity about the importance of curbing solitary confinement in New
York prisons. It's time for DOCCS to listen."
For decades, advocates have fought New York state's reliance on the
harsh punishment of solitary confinement. In 2015, the NYCLU
secured a landmark settlement to overhaul solitary confinement in
New York, resulting from a 2012 class-action lawsuit, Peoples v.
Annucci, which challenged the policies and practices governing
solitary confinement in New York State prisons. In 2014, PLS
reached a ground-breaking settlement in Cookhorne v. Fischer
mandating, among other things, that a juvenile's age must be
considered when imposing solitary on 16- and 17-year-olds and
requiring written justification of any solitary confinement
imposition for juveniles. The NYCLU's 2012 report Boxed In: The
True Cost of Extreme Isolation in New York's Prisons, showed that
state prisons doled out thousands of sentences of extreme isolation
every year, with some serving terms of years or even decades in
solitary. And in 2007, PLS and its partners settled Disability
Advocates, Inc. v. New York State Office of Mental Health and
Department of Correctional Services, which provided relief to all
incarcerated people with serious mental illness who were subjected
to any form of isolated confinement.
"The enactment of legislation to curb the overuse of solitary
confinement, known as the HALT Act, was the result of a
decades-long effort by human rights advocates and reformers. It is
now the law, but honoring its letter and spirit awaits action by
those charged with its implementation," said Karen Murtagh,
Executive Director of Prisoners' Legal Services of New York. "The
law left in place the administrative tools needed to protect both
the 'keepers and kept' behind prison walls. An inept and porous
rollout of these reform measures certainly does not justify a
rollback of these hard-fought reforms. This litigation seeks one
thing and one thing only: enactment of the HALT law as written."
"The New York Legislature spoke loudly and clearly about the harms
of solitary and disciplinary confinement when it passed the HALT
Act. DOCCS must comply with the HALT Act. It must follow the law,"
said of-counsel Alexis Karteron, Director, Rutgers Constitutional
Rights Clinic.
In addition to Gemmell, NYCLU counsel on the case includes deputy
legal director Molly Biklen, legal fellows Ify Chikezie and
Courtney Colwell, as well as paralegal Alanis McAlmont. PLSNY
counsel includes special litigation attorney Andrew Stecker, senior
supervising attorney Jim Bogin, senior staff attorney Matt McGowan,
and staff attorneys Hallie Mitnick and Elise Czuchna. [GN]
NEW YORK: Magistrate Judge Hummel Recommends Dismissal of Cox Suit
------------------------------------------------------------------
In the case, HENRY COX, Plaintiff v. NEW YORK STATE; UNITED STATES
OF AMERICA, Defendants, Case No. 1:23-CV-0060 (MAD/CFH) (N.D.N.Y.),
Magistrate Judge Christian F. Hummel of the U.S. District Court for
the Northern District of New York grants the Plaintiff's IFP
application for purposes of filing and recommends dismissal of the
complaint.
Plaintiff Cox purported to commence the action on Jan. 17, 2023,
with the filing of a complaint. As the Plaintiff failed to pay the
Court's filing fee or submit a complete application for leave to
proceed in forma pauperis ("IFP"), the Court issued an order
directing administrative closure with opportunity to comply with
the filing fee requirement. On Feb. 1, 2023, Cox submitted a motion
to proceed in forma pauperis. That day, the Clerk was directed to
reopen the action and restore it to the Court's active docket.
Presently before the Court is a review of the Plaintiff's IFP
application.
After review of the Plaintiff's renewed IFP application, Judge
Hummel concludes that Cox financially qualifies to proceed without
prepayment of the Court's filing fee. The Plaintiff is advised that
IFP status does not include other fees or costs that may be
associated with the litigation. As the Plaintiff has been granted
IFP status, Judge Hummel proceeds to review of his complaint
pursuant to 28 U.S.C. Section 1915(e).
The Plaintiff seeks to sue the State of New York, in full capacity,
and the United States of America, Federal Agencies. He states,
generally, that his case is based on the mass incarceration of
minorities in the United States. He says the PRS sentencing, the
sentencing, and the treatment thereof between white and Black
people are Boas and racist denying due process rights of Blacks and
subjecting them to cruel and unusual punishment revolving around
the 8th amendment.
The Plaintiff further blames unspecified "Government Officials" for
money being cut from inner-city schools all over the United States
and in New York State every year. He contends that it is
unconstitutional as Government Officials have an obligation to/with
absolute duties to uphold justice and serve and protect the people
fair and equal in the eyes of the law; the 14th Amendment (due
process) protects that; the 5th amendment (due process) protects
that, the 8th amendment (due process & cruel and unusual punishment
protects that. He proposes the amendment will be revisited.
The Plaintiff argues the FRCAs sovereign immunity waiver applies
only to the federal government and not to agencies within the
Federal Government. He further states that sovereign immunity
shouldn't exist when there is a clear violation of the Constitution
for then what would be the reason for law or the United States of
America. This gives way to the abuse of power by government
agencies.
Among those responsible for the Plaintiff's complaints are
government agencies (FBI, CIA-Counterintel Program and War on Drugs
with Contra & Vietnam War), the Judges sentencing Blacks and
Whites, the Aid or lack thereof of the Gov. Budget toward Black;
(People of Color) and Schooling and DOCCS. The addressing officers
target Blacks not only with skin color in mind but with aggression
and violence, and then the Immunity Clauses in these government
agencies play a high role in accountability or lack thereof.
The Plaintiff also challenges the constitutionality of post-release
supervision, apparently as it relates to the length of post-release
supervision sentences for those who have been convicted of rape
when compared to other crimes. He appears to suggest that the
difficulties, bias, and discrimination that people of color face
should be a consideration for sentencing and post-release
supervision. The Plaintiff notes that his case could be a potential
class action lawsuit.
For the Plaintiff's first cause of action, he states to stop
discriminating against Black people dealing with post release
supervision sentencing with bias as opposed to their white
counterpart. For his second cause of action, he lists the fair use
of post-release supervision, in dealing with rape and violent
crimes. For his third cause of action, he states the due process of
applying PRS to determine sentencing for violent crimes. For his
fourth cause of action, e states revisiting the 13th amendment
provisions that opened the door for Jim Crow, i.e., mass
incarceration of black people (people of color) making it
unconstitutional. Lastly, his fifth cause of action states mass
incarcerating in the State of New York and the United States of
America (federal agencies) violation of the rights and targeting
Blacks (people of color (Latino) other) violation of the
Constitution.
The Plaintiff seeks $500 million in compensatory damages and $500
million in punitive damages.
Judge Hummel notes to the extent it can be determined, the
Plaintiff appears to claim that his arrest, prosecution,
incarceration, and sentence -- and the arrests, prosecutions,
incarcerations, and sentences of people of color in general --
violate his First, Fifth, Eighth, and Fourteenth Amendment rights.
Although not explicitly stated as such, he also appears to seek to
raise equal protection claims, contending that people of color are
being treated differently than similarly situated white people
insofar as people of color are being arrested and incarcerated at
either higher rates than white people who have committed the same
crimes.
Next, the Plaintiff appears to challenge the constitutionality of
post-release supervision, generally, because post-release
supervision could "extend a sentence" beyond the maximum allowable
sentence for that crime. He also appears to argue that post-release
supervision is warranted and constitutional for those who have
committed rape, but for those who have committed other crimes, it
is unconstitutional. Next, he asks the Court to "revisit" the
Thirteenth Amendment as suggests that people of color, generally,
are being "targeted" and incarcerated, apparently in violation of
the Thirteenth Amendment's prohibition against slavery or
involuntary servitude.
As a threshold issue, Judge Hummel holds that to the extent the
Plaintiff's complaint seeks to allege that any wrongs were imposed
on any persons other than himself because he cannot proceed as a
class action at this time, such claims will be interpreted only
insofar as they impact the Plaintiff, individually. Accordingly, to
the extent his complaint can be read as seeking class
certification, it is recommended that the request be denied.
On the merits, Judge Hummel finds several bars to the Plaintiff's
complaint, many of them fatal. First, because the Plaintiff seeks
to sue the United States and/or its agencies, these claims are
barred by sovereign immunity. Although he cites the Fifth and
Eighth Amendments in passing, he fails to set forth any specifics
explaining how any federal agents violated his Fifth or Eighth
Amendment rights. Furthermore, even if the Plaintiff had set forth
claims that would properly fall under the FTCA, he has not shown
that he has exhausted his administrative remedies.
Accordingly, Judge Hummel recommends that any claim the Plaintiff
may be seeking to raise against the United States under the FTCA be
dismissed without prejudice and with opportunity to amend should he
be able to demonstrate (1) that his conviction has been overturned
or otherwise deemed invalidated by a court of law or an FTCA claim
that does not call into question the validity of his conviction;
(2) a claim against the United States that falls within the FTCA;
and (3) proper exhaustion of his administrative remedies under the
FTCA.
Second, Judge Hummel says the Plaintiff's claims against the State
of New York for monetary damages are barred by the state's
sovereign immunity. The Plaintiff appears to seek to bring his
claims against the State of New York for the alleged violations of
his constitutional rights under section 1983. Although the Eleventh
Amendment generally does not bar claims for prospective injunctive
or declaratory relief against individual officers sued in their
individual capacities, the Plaintiff does not name any state
officials as defendants in this action. His requested injunctive
relief also cannot be granted under section 1983 as claims
regarding his sentencing or post-release supervision term must
instead be brought pursuant to a habeas corpus petition.
Accordingly, Judge Hummel recommends that (1) any claims that can
be interpreted as being raised against the State of New York under
42 U.S.C. Section 1983 for monetary damages for alleged violations
of the Plaintiff's constitutional rights be dismissed due to the
state's sovereign immunity under the Eleventh Amendment, and (2)
any claims for injunctive relief relating to his term of
post-release supervision be dismissed with prejudice as such relief
must be sought pursuant to a habeas corpus petition and not
pursuant to section 1983.
Finally, Judge Hummel must determine whether the recommendation is
for dismissal with or without prejudice. As the Plaintiff's
potential section 1983 and Bivens claims are barred by sovereign
immunity, to the extent it relates to the length or
constitutionality of his sentence or post-release supervision, must
be brought as a habeas corpus petition, no change to his pleading
will cure these particular bars. However, despite finding it
unlikely that the Plaintiff can state a cognizable claim for relief
relating to the claims he set forth in the action, recognizing that
the Plaintiff is pro se, Judge Hummel recommends providing the
Plaintiff with one opportunity to amend to the extent he may able
to state a cognizable claim for relief in an amended pleading.
For the reasons set forth, Judge Hummel grants the Plaintiff's IFP
application for purposes of filing. He recommends that the
Plaintiff's complaint be dismissed as follows:
(1) claims for monetary relief against the State of New York
for alleged violations of his constitutional rights pursuant to 42
U.S.C. Section 1983; and all claims against the United States, the
Federal Bureau of Investigation, and the Central Intelligence
Agency pursuant to Bivens be dismissed with prejudice;
(2) potential claims pursuant to the First, Fifth and Eighth
Amendment claims pursuant to Bivens against federal agents in their
individual or official capacities be dismissed with prejudice;
(3) potential claims against state officers in their
individual capacities for monetary or injunctive relief or in their
official capacities for prospective injunctive relief for
violations of the Plaintiff's constitutional rights pursuant to 42
U.S.C. Section 1983 be dismissed without prejudice;
(4) claims relating to the length or constitutionality of the
Plaintiff's sentence or post-release supervision be dismissed with
prejudice and without opportunity to amend, but without prejudice
to him bringing a habeas corpus proceeding if he is able to do so;
(5) constitutional claims against the United States pursuant
to the Federal Tort Claims Act be dismissed with prejudice;
(6) potential claims against the United States under the
Federal Tort Claims Act, not arising from constitutional claims, be
dismissed without prejudice and with opportunity to amend as
specified;
(7) potential claims that allege that the Plaintiff's arrest,
prosecution, incarceration, or sentencing was the product of racial
bias, in violation of 42 U.S.C. Section 1983, as stated against (a)
the State of New York, for prospective, injunctive relief, and (b)
potential claims against individual officers in their personal
capacities for monetary or injunctive relief, which are barred by
Heck v. Humphrey, be dismissed without prejudice and with
opportunity to amend only in the event that he can demonstrate that
his conviction has been overturned or otherwise resolved in his
favor;
(8) the Plaintiff's apparent contention that unspecified
defendants violated the Thirteenth Amendment and his request that
the Court "revisit" the Thirteenth Amendment, either pursuant to
section 1983 or Bivens, be dismissed with prejudice; and
(9) the Plaintiff's apparent request to proceed as a class
action be dismissed with prejudice.
If the District Judge permits the Plaintiff an opportunity to
amend, he be given 30 days from the filing date of the District
Judge's Decision & Order to file an amended complaint, and if he
fails to file an amended complaint within that time period, the
matter be closed without further order of the Court.
The Clerk of the Court serve the Report-Recommendation & Order on
the Plaintiff in accordance with Local Rules.
Pursuant to 28 U.S.C. Section 636(b)(1), the Plaintiff has 14 days
within which to file written objections to the foregoing report.
Such objections will be filed with the Clerk of the Court. Failure
to object to the Report within 14 days will preclude appellate
review.
A full-text copy of the Court's April 4, 2023 Report-Recommendation
& Order is available at https://tinyurl.com/sajkn4rf from
Leagle.com.
Henry Cox, Upstate Correctional Facility, Malone, New York,
Plaintiff pro se.
NISSIN FOODS: Motion to Dismiss Mislabeling Suit Dismissed
----------------------------------------------------------
Paul Hastings LLP reports that it secured full dismissal in a
putative class action lawsuit filed against client, Nissin Food
Products Co., Ltd. The lawsuit alleged that several of Nissin's
ramen noodle products violated 44 states' consumer protection laws.
The plaintiff filed a suit alleging that the labeling on its
packaging contains the phrase "NO ADDED MSG," misleading consumers
since the products do contain naturally occurring free glutamates.
The plaintiff was seeking to certify a class constituting all
persons who purchased one of these products in one of the 44
states. Nissin moved to dismiss the complaint for failing to allege
that reasonable consumers would be misled, given the clear
disclaimer on the labels note that the products contain naturally
occurring glutamates. The plaintiff also brought a claim for
violation of the Magnuson-Moss Warranty Act, but the plaintiff
dismissed this count in response to the filing of Nissin's motion
to dismiss.
This litigation concerned one of the largest consumer protection
class actions, spanning 44 states with potentially millions of
class members. Additionally, the plaintiff rested their case on
decades-old FDA guidance concerning MSG. A ruling in their favor
would have had significant implications on how food products are
marketed and sold if even one ingredient contains free glutamates.
Products containing ingredients as common as cheese and tomatoes
could have also been subject to litigation if the products make any
assertion about a lack of MSG, regardless of the presence of
disclaimers on the packaging.
Charles Patrizia and Kurt Hansson led the Paul Hastings team, which
also included associates James Ferguson and Hanna Ali. [GN]
NORFOLK SOUTHERN: Resolution on Special Counsel Agreement Discussed
-------------------------------------------------------------------
Morgan Ahart of Salem News reports that City council decided not to
enter into a legal agreement for representation as part of a class
action lawsuit against Norfolk Southern in its meeting on April 4,
2023.
First discussed Feb. 7 following a presentation to the committee of
the whole by former Ohio Attorney General Marc Dann and former
Montana Attorney General Tim Fox of the Dann Law, and Morgan &
Morgan law firms, respectively, the resolution to enter into a
special counsel representation agreement with the firms was
unanimously tabled following a motion by Councilman Andrew Null.
The decision was reached following the announcement by City Auditor
Betty Brothers that Norfolk Southern had approved the full list of
the city's expenses for reimbursement and that the city would be
receiving a check for $136,399, and an executive session for the
discussion of litigation requested by City Law Director Brooke
Zellers.
Null said that he had made the motion as Norfolk Southern had
agreed to reimburse the city for their expenses related to the
incident and that it was in the city's own interests to hold off on
legal action at this time.
"The company is fulfilling all of their obligations to the city
regarding the reimbursement of our equipment and overtime expenses,
se we felt it was in the city's best interest to table the
resolution for now and see how things play out moving forward,"
said Null.
Null also said that council still had concerns for the health of
the city's emergency response personnel who responded to the
derailment "foremost in their minds," and would remain vigilant as
the situation developed and respond accordingly.
Other legislative matters included the approval of an ordinance
updating salaries, wages and benefits for non-represented city
employees, officials and elected officials.
In her report Mayor Cyndi Baronzzi Dickey announced that the annual
Salem Spring Cleanup will be 9 a.m. April 22 in downtown Salem.
Dickey said anyone who would like to help is welcome and should
bring a broom, shovel or leaf blower, rake or other cleanings tools
they'd like to use.
Dickey also wanted to express her gratitude to the city's employees
for their efforts in responding to the recent severe storms.
"I want to express my thanks to all city employees that were out
the past two weekends dealing with the effects of the severe wind.
The clean up is still going on and their efforts are most
appreciated, giving their time off to help the city in every way
they can," said Dickey.
In his report City Service Safety Director Joe Cappuzzello said
that a letter regarding the city's new electric aggregation deal
had been sent out to all residents not currently engaged in a
private agreement with an electric supplier. The new deal will see
aggregation program members receive a set rate of 7.95 cents per
kilowatt hour from June 2023 through June 2026.
Cappuzzello reminded residents that should they want to be join the
program no action is required and they will be enrolled
automatically, and that if they did not want to join at the
aggregation rate, they could still secure their own agreements
through the www.energychoice.ohio.gov apples to apples comparison.
Cappuzzello also said that paving will begin on Franklin Avenue
starting at South Lincoln Avenue to the city limits April 17. He
said that schools and residents living on the street had already
been notified and that the road would not be closed completely, as
only one lane will be paved at a time. He said the latest possible
end date for the project was Nov. 30; however, he said that barring
any abnormal weather complications the project should be completed
"way before that time."
Cappuzzello closed his report by expressing his gratitude to the
city's employees for their efforts.
"All departments have done a great job, putting in a lot of extra
hours, and it's greatly appreciated. I'm telling you, we get great
work for the money and the benefits we pay our city employees,"
said Cappuzzello.
During Pleasure of Council Councilmen Jeff Stockman, Dennis Plegge
and Steve Faber wanted to send their well wishes to any residents
that lost power during the recent severe storms and urged residents
to check on and offer what help they can to any neighbors without
power.
Faber also wanted to thank Todd and Tara Peters for attending the
recent residential committee meeting and sharing their thoughts.
"I appreciate their very honest and frank comments, and I wish they
were all that clear and concise," said Faber.
Faber's sentiments were echoed by Councilman Evan Newman, who also
thanked Cappuzzello and Police Chief J.T. Panezott for attending
the meeting to answer the residents' questions and address their
concerns.
City council will meet next at 7 p.m. April 18. [GN]
NULIFE MED: Final Approval Hearing in Breach Suit Deal Set June 5
-----------------------------------------------------------------
Top Class Actions reports that NuLife Med agreed to a class action
settlement to resolve claims it failed to protect patient
information from a 2022 data breach.
The settlement benefits patients and potential patients for whom
NuLife Med received personal health information and/or personal
identifiers before March 11, 2022. Individuals may have received a
written notice from NuLife Med regarding the data breach.
The NuLife Med data breach occurred in March 2022 and compromised
names, contact information, insurance data, medical information,
birth dates and Social Security numbers. A class action lawsuit
from affected patients claims that NuLife could have prevented the
data breach by implementing reasonable cybersecurity measures.
NuLife Med is a medical equipment company that provides patients
with devices to help in recovery from surgeries and injuries.
NuLife Med hasn't admitted any wrongdoing but agreed to pay an
undisclosed sum to resolve the data breach class action lawsuit.
Under the terms of the NuLife Med data breach settlement, class
members can receive one year of free credit monitoring services or
a check worth up to $25. Only one of these benefits can be claimed
per claimant.
The deadline for exclusion and objection is May 16, 2023.
The final approval hearing for the settlement is scheduled for June
5, 2023.
In order to receive settlement benefits, class members must submit
a valid claim form by June 20, 2023.
Who's Eligible
Patients and potential patients for whom NuLife Med received
personal health information and/or personal identifiers before
March 11, 2022.
Potential Award
$25
Proof of Purchase
N/A
Claim Form Deadline
06/20/2023
Case Name
Pires, et al. v. NuLife Med LLC, Case No. CACE-22-017828, in the
Circuit Court of the 17th Judicial Circuit in and for Broward
County, Florida.
Final Hearing
06/05/2023
Settlement Website
NuLifeMedClassSettlement.com
Claims Administrator
NuLife Med Data Breach Settlement
1650 Arch Street, Suite 2210
Philadelphia, PA 19103
Info@NuLifeMedClassSettlement.com
833-398-1777
Class Counsel
Michael Eisenband
EISENBAND LAW PA
Jibrael S Hindi
LAW OFFICES OF JIBRAEL S. HINDI
Manuel S Hiraldo
HIRALDO PA
Defense Counsel
Barry A Postman
Scott A Bassman
Matthew A Green
COLE SCOTT & KISSANE PA [GN]
OPENSIDED MRI: E.D. Missouri Certifies Class A in Brust TCPA Suit
-----------------------------------------------------------------
In the case, DOUGLAS PHILLIP BRUST, D.C., P.C., et al., Plaintiff
v. OPENSIDED MRI OF ST. LOUIS LLC, et al., Defendants, Case No.
4:21-cv-00089-SEP (E.D. Mo.), Judge Sarah E. Pitlyk of the U.S.
District Court, E.D. Missouri, Eastern Division, grants the
Plaintiffs':
(1) Motion to Certify Class pursuant to Federal Rule of Civil
Procedure 23(a) and (b)(3); and
(2) Unopposed Motion to File Under Seal.
The Telephone Consumer Protection Act of 1991 (TCPA) makes it
unlawful for any person to use any telephone facsimile machine,
computer, or other device to send, to a telephone facsimile
machine, an unsolicited advertisement, unless certain conditions
are met. The statute defines "telephone facsimile machine" to mean
"equipment which has the capacity (A) to transcribe text or images,
or both, from paper into an electronic signal and to transmit that
signal over a regular telephone line, or (B) to transcribe text or
images (or both) from an electronic signal received over a regular
telephone line onto paper."
The case involves unsolicited fax advertisements received by
Plaintiffs Douglas Phillip Brust, D.C., P.C., and Alan Presswood,
D.C., P.C., who bring suit individually and on behalf of others
similarly situated. They initiated this junk fax case against
Opensided MRI of St. Louis, LLC, Opensided MRI of St. Louis II,
LLC, and Matthew Ruyle, alleging violations of the TCPA. The
Plaintiffs are professional corporations. Opensided is an imaging
center that performs MRIs, CTs, and X-rays for patients. It is
owned by Quality Imaging, LLC and does business as Greater Missouri
Imaging. Matthew Ruyle is a part owner of Quality Imaging.
Between April and June of 2020, during the early months of the
COVID-19 pandemic and at the height of the related shutdowns,
Opensided sent faxes to certain members of the St. Louis medical
community alerting them that it was open and its imaging services
were available while other radiologic providers were closed. The
Plaintiffs allege that on April 7, 2020, April 15, 2020, April 21,
2020, May 18, 2020, and June 1, 2020, Opensided caused 7,522 such
unsolicited fax advertisements to be sent to approximately 1,583
fax numbers, including numbers belonging to them. Brust alleges
that he received the faxes on a traditional standalone facsimile
machine, while Presswood received the faxes via an online fax
service.
The Plaintiffs seek an order from the Court certifying the
following class: Class A—All persons or entities who were
successfully sent faxes, on or about April 7, 2020, April 15, 2020,
April 21, 2020, May 18, 2020, and June 1, 2020, that state: Greater
Missouri Imaging, We are scheduling Monday-Friday for emergent and
non-emergent MRIs, CTs and injections, and/or At Greater Missouri
Imaging we are always striving to provide the best diagnostic
imaging services in the St. Louis are [sic].
Alternatively, if the Court sees fit to distinguish between faxes
successfully sent to standalone fax machines versus faxes that were
successfully sent to an online fax service, the Plaintiff requests
that the Court certify the following class: Class B—All persons
or entities who were sent successfully faxes to their standalone
telephone facsimile machines, on or about April 7, 2020, April 15,
2020, April 21, 2020, May 18, 2020, and June 1, 2020, that state:
Greater Missouri Imaging, We are scheduling Monday-Friday for
emergent and non-emergent MRIs, CTs and injections, and/or At
Greater Missouri Imaging we are always striving to provide the best
diagnostic imaging services in the St. Louis area.
The Plaintiffs also seek an Order from the Court appointing the
Plaintiffs as the Class Representatives and appointing the law
firms of Margulis Law Group and Anderson + Wanca as the Class
Counsel.
The Defendants argue that online fax users -- included in Class A
-- do not have claims under the TCPA pursuant to the recent
Amerifactors decision issued by the Consumer and Governmental
Affairs Bureau, and that they lack Article III standing. They also
argue that the proposed classes fail under Rule 23(a) and Rule
23(b)(3) and certification is not justified because the Plaintiffs
have not demonstrated typicality and adequacy under Rule 23(a) or
that common issues predominate and a class action would be superior
under Rule 23(b).
First, Judge Pitlyk finds that the putative class members similarly
received multiple faxes that they allegedly did not previously
consent to. Therefore, she finds that the receipt of unwanted faxes
via online fax services is sufficient to confer Article III
standing to bring a claim under the TCPA.
Judge Pitlyk turns now to consideration of the Rule 23 requirements
for class certification. She finds that (i) numerosity is
undeniably present, as there are 1,583 putative class members in
Class A and 1,422 in Class B, and joining all putative members of
the proposed classes would clearly be impracticable; (ii)
commonality is satisfied because the Plaintiffs' claims present
common questions of law and fact; (iii) Brust's and Presswood's
claims and injuries are identical to, and thus typical of, those of
the putative members of Class A; (iv) the named Plaintiff can
adequately represent the class and the Plaintiffs' counsel is
qualified to serve as class counsel under Rule 23(g).
Judge Pitlyk further finds that the Plaintiff has met its burden of
showing, by a preponderance of the evidence, the predominance of
common issues as to Class A. And because the Plaintiff has
identified a reliable method to identify class members, the class
is ascertainable.
Also before the Court is the Plaintiffs' Unopposed Motion for Leave
to File Under Seal, in which they seek leave to file under seal
certain exhibits to their motion for class certification. The
exhibits they wish to file under seal are the fax logs for the fax
broadcasts at issue, obtained by subpoena earlier in the
litigation, which contain the fax numbers of putative class
members. The Plaintiffs seek to keep those fax logs under seal
until 90 days following the final determination of the action.
On review of the exhibits at issue, Judge Pitlyk agrees that there
is little-to-no public interest in the data contained therein,
i.e., lists of numbers with no other meaningful information. She
agrees with the Plaintiffs that their legitimate interest in
preventing competitors from seeing and potentially using those
numbers outweighs any interest the public may have in the contents
of the exhibits. Therefore, the motion to file under seal is
granted.
Accordingly, Judge Pitlyk grants the Plaintiffs' Motion to Certify
Class. She certifies the Plaintiffs' proposed Class A. She also
grants the Plaintiffs' Unopposed Motion for Leave to File Under
Seal.
A full-text copy of the Court's March 31, 2023 Memorandum & Order
is available at https://tinyurl.com/2butrbhv from Leagle.com.
PELOTON INTERACTIVE: Motion to Dismiss Investors' Suit Granted
--------------------------------------------------------------
Katie Weicher of Pelo Buddy reports that Peloton has secured a win
in the courtroom. As first reported by Law360, on March 30 a
federal judge dismissed a class action lawsuit that had been
brought about by a group of investors in 2021. Robeco Capital
Growth Funds SICAV - Robeco Global Consumer Trends argued that
Peloton intentionally misled investors about the sustainability of
demand for Peloton products during the Covid-19 pandemic.
However, last week a judge ruled that Peloton had included the
necessary language to warn investors of uncertainty regarding
demand, and the plaintiff did not adequately prove deception on the
part of Peloton. According to the judge's ruling:
Far from being "boiler-plate", as Plaintiff tries to characterize
them, these warnings are both specific and realistic about the
precise risks factors faced by Peloton as a company -- namely that
the relaxation of the COVID protocols closures that had promoted
the Company's growth could hamper its future subscriber growth.
These warnings are not "garden variety" and do not relate to "any
company's financial well-being."
The judge also ruled that Peloton noted demand was returning to
pre-COVID levels:
Defendants explicitly told the public that demand for Peloton's
products would be returning to pre-COVID levels after the surge in
demand it had seen during COVID. Plaintiff's allegations that
Defendants knew that "the sales boom of the 2020 was a
COVID-phenomenon, and Peloton would be unable to keep sales at that
level throughout 2021 and beyond" is reflected in Peloton's
disclosures to the market. In May 2021, Peloton told investors that
sales were "tapering from COVID highs" " [a]s anticipated" and that
it was "expecting a gradual return to historical seasonal sales
trends."
The plaintiff group will have an opportunity to refile their
lawsuit if they amend their complaints. They must do so by April
28, 2023.
Peloton requested that this lawsuit be dismissed last August. Note
that this case was originally titled City of Hialeah Employees
Retirement System v. Peloton Interactive, Inc. et al, but it was
consolidated into a new name with class action status.
Demand for Peloton products soared during 2020 and 2021, but by
early 2022 Peloton had announced they would halt production of new
inventory. [GN]
PEREGRINE ENTERPRISES: Carrion Sues Over Alleged Tip Skimming
-------------------------------------------------------------
CRYSTAL CARRION; ELIZA DUNN; BEATRICE VETTORETTI; ELENA
ARZHANIKOVA; and MARGARITA ALKHVERDOVA, individually and on behalf
of all others similarly situated, Plaintiffs v. PEREGRINE
ENTERPRISES, INC. dba RICK'S CABARET NEW YORK; RCI ENTERTAINMENT
(NEW YORK) INC.; RCI HOSPITALITY HOLDINGS, INC. fka RICK'S CABARET
INTERNATIONAL, INC.,; RCI MANAGEMENT SERVICES, INC.; ERIC LANGAN;
ED ANAKAR; DOE MANAGERS 1-3; and DOES 4-10, Defendants, Case No.
1:23-cv-02891 (S.D.N.Y., April 6, 2023) seek to recover all tips
kept by the Defendants, liquidated damages, interest, and
attorneys' fees and costs. Plaintiff also seeks to recover the
return of all kickbacks that caused their payments to go below the
minimum wage.
The Plaintiffs were employed by the Defendants as dancers.
PEREGRINE ENTERPRISES INC. was founded in 1976. The company's line
of business includes providing management consulting services.
[BN]
The Plaintiffs are represented by:
Terrence E. McCartney, Esq.
John P. Kristensen, Esq.
Frank M. Mihalic, Jr., Esq.
Justice D. Turner, Esq.
CARPENTER & ZUCKERMAN / MCCARTNEY STUCKY LLC
8827 W. Olympic Boulevard
Beverly Hills, CA 90211
Telephone: (310) 273-1230
Email: tmccartney@mc-stlaw.com
kristensen@cz.law
fmihalic@cz.law
jturner@cz.law
PFIZER INC: Won Proposed Class Action Suit Over Patients' Copays
----------------------------------------------------------------
Kevin Dunleavy of Fierce Pharma reports that two months after
taking a loss in a U.S. Supreme Court appeal, which prevents Pfizer
from implementing a cost-sharing assistance program for its heart
disease drugs Vyndaqel and Vyndamax, the company has gotten a win
in a parallel case in a different court in Washington, D.C.
In U.S. District Court, Pfizer has prevailed over five collection
companies which sought to bring a potential class action lawsuit
alleging that Pfizer illegally induced patients to a select group
of drugs.
The five plaintiffs -- including MSP Recovery Claims and Series LLC
-- are companies that seek to recover overpayments on behalf of
private insurers that administer Medicare and Medicaid programs.
The plaintiffs alleged that they were damaged by a "conspiratorial
scheme to increase the unit price" of several drugs from 2012 to
2016.
Pfizer did it, the companies alleged, by donating to the Patient
Access Network Foundation and Advanced Care Scripts to help cover
the cost of patients' co-pays. This in turn induced patients to use
Pfizer drugs when less expensive alternatives were available,
according to the complaint.
In court documents, the plaintiffs contended that insurers "were
forced to pay for artificially increased amounts of the subject
drugs" in an amount exceeding $20 billion.
The drugs in question included arrhythmia treatment Tikosyn and
renal carcinoma treatments Sutent and Inlyta. In 2016, for example,
the trio combined for $1.65 billion in sales.
U.S. District Judge Dabney L. Friedrich ruled that the plaintiffs
did not bring enough evidence to support their claim.
"The court cannot accept inferences that are unsupported by the
facts set out in the complaint," Friedrich wrote.
In 2018, Pfizer agreed to pay $23.8 million settlement to the U.S.
government resolve claims that it used a foundation as a conduit to
fund the copays of Medicare patients taking Sutent, Inlyta and
Tikosyn, in violation of the False Claims Act.
The latest decision comes after Pfizer, in February, was denied a
rehearing of its appeal to establish a similar cost-sharing
program, which would have helped patients cover out-of-pocket costs
for Vyndaqel and Vyndamax.
The ruling reaffirmed a 2019 decision that found that Pfizer's
planned arrangement would break a criminal ban on financial support
to patients for a federally reimbursed healthcare product.
Pfizer argued that the case was chance for SCOTUS to address a
"staggeringly overbroad" interpretation of anti-kickback laws. [GN]
PITTSBURGH, PA: Files Motion for $275-M Class Suit Settlement
-------------------------------------------------------------
WTAE reports that the City of Pittsburgh could have to pay hundreds
of thousands of dollars to protestors from a 2020 racial justice
demonstration.
A motion in federal court this week revealed the $275,000
settlement.
According to a class action lawsuit involving seven plaintiffs,
protesters say they were gassed, arrested and traumatized by
Pittsburgh police.
The settlement still needs to be approved by Pittsburgh City
Council and Mayor Ed Gainey. [GN]
RAY MOLES: Wins in Part Bid to Compel Arbitration in Colores Suit
-----------------------------------------------------------------
In the case, FILEMON COLORES, as an individual and on behalf of all
others similarly situated, Plaintiff v. RAY MOLES FARMS, INC., a
California Corporation; and DOES 1 through 100, Defendant. RAY
MOLES FARMS, INC., a California Corporation, Cross-Complainant v.
FILEMON COLORES, as an individual on behalf of all others similarly
situated, Cross-Defendants, Case No. 1:21cv-00101-JLT-BAM,
Consolidated with No. 1:21-cv-00467-JLT-BAM (E.D. Cal.), Judge
Jennifer L. Thurston of the U.S. District Court for the Eastern
District of California grants in part Defendant Ray Moles' Motion
to Compel Arbitration.
Colores brings suit on behalf of himself and similarly situated
individuals alleging that Ray Moles engaged in several violations
of the California Labor Code and Business and Professional Code.
Ray Moles contends that Colores' individual claims must be
arbitrated. Colores counters that Ray Moles has waived its right to
arbitrate.
Colores was a non-exempt farm labor employee who worked for Ray
Moles on a seasonal basis from approximately January 2016 to Feb.
2, 2020. Ray Moles employed workers like Colores to harvest
agricultural commodities in the state of California, including
Tulare County. During different time periods, Colores was paid
either hourly or on a piece-rate basis for his work at Ray Moles
vineyards.
Colores originally filed the suit as a class action in November
2020 in the Tulare County Superior Court, alleging violations of
California's Labor Code and Unfair Competition Law. According to
him, Ray Moles failed to: (1) comply with minimum wage
requirements; (2) pay overtime wages; (3) provide proper meal
periods; (4) provide proper rest periods; (5) provide compliant
itemized wage statements; (6) pay wages due at termination; and (7)
comply with California's Unfair Competition Law. Ray Moles removed
the action to this Court on Jan. 25, 2021 on the basis of the Class
Action Fairness Act and immediately filed an answer. These first
seven claims constitute Colores' "non-PAGA" claims.
Colores later filed a related claim ("the PAGA claim") against Ray
Moles under the California Private Attorneys General Act ("PAGA"),
California Labor Code Sections 2698, et seq., which Ray Moles
removed to this Court and consolidated with the present case. In
May 2021, Ray Moles filed: an answer to the consolidated claims; a
counterclaim for injunctive and declaratory relief on the grounds
that PAGA violates both the California and federal Constitutions;
and a Motion for Judgment on the Pleadings or, in the alternative,
Partial Summary Judgment, which argued for dismissal of all
Colores' claims with prejudice for failure to state a claim upon
which relief could be granted.
The parties then agreed to attend mediation on Nov. 2, 2021. He
alleges that, despite the upcoming mediation, Ray Moles did not
respond to any communications from May 2021 through August 2021.
Colores alleges that Ray Moles did not bring the arbitration
agreement to his attention until Sept. 27, 2021. As early as
September 30, 2021, he claims that Ray Moles indicated a
forthcoming motion to compel if Colores did not agree by Oct. 5,
2021 to stipulate to arbitrate his claims. And, indeed, Ray Moles
moved to compel arbitration on Oct. 6, 2021. The motion to compel
included a copy of the Agreement that Colores signed when he was
first hired by Ray Moles, dated Dec. 5, 2016.
Based on the Agreement, Ray Moles seeks to compel arbitration of
all of Colores' non-PAGA claims (causes of action 1-7), as well as
the individual portion of Colores' PAGA claim. Colores opposed the
motion to compel on Nov. 2, 2021, arguing Ray Moles waived its
right to arbitration by engaging in almost 12 months of active and
prolonged litigation. Ray Moles filed its Reply on Nov. 9, 2021.
Both parties submitted supplemental briefing in March 2023 at the
Court's request.
After the motion to compel was filed, the Court received several
motions related to Ray Moles' counterclaim challenging the
constitutionality of PAGA. Specifically, Colores filed a motion to
dismiss Ray Moles' counterclaim and the California Attorney General
requested leave to intervene in defense of PAGA.
Ray Moles contends that the Court must compel arbitration because
Colores agreed, in a binding and enforceable arbitration agreement,
to arbitrate his individual claims and waive the right to bring a
class claim. By its terms, the Agreement covers "any and all"
disputes between employee and employer, including "disputes about
compensation, and all disputes related to, resulting from, or
arising out of the employment relationship."
Colores does not dispute that he signed the Agreement. However, the
parties disagree as to (1) whether Ray Moles waived its right to
arbitration in the suit by acting inconsistently with that right
and, if Ray Moles has not waived arbitration rights, (2) the extent
to which Colores' claims -- especially his PAGA claims -- can be
compelled to arbitration.
Because the issue of waiver would be determinative, Judge Thurston
addresses it first. She finds that Ray Moles' actions in the case,
while potentially dilatory, evince an intent to merely frustrate
the litigation. As such, he finds that Ray Moles has not waived its
right to arbitrate in the case.
Having found that Ray Moles did not waive its right to arbitrate
the issues, Judge Thurston examines the validity of the Agreement
and its applicability on Colores' claims. The basic role for courts
under the FAA is to determine (1) whether a valid agreement to
arbitrate exists and, if it does, (2) whether the agreement
encompasses the dispute at issue.
Colores does not dispute that he signed the Agreement or that the
Agreement encompasses his non-PAGA claims, the first seven causes
of action in his complaint. As such, Judge Thurston grants Ray
Moles' motion to compel individual arbitration of Colores' non-PAGA
claims. She dismisses without prejudice the non-PAGA claims.
As to Colores' PAGA claims in his eighth cause of action, there
remains significant disagreement. Ray Moles does not dispute that
the Agreement does not contain an explicit waiver of PAGA claims;
however, it argues that the Agreement encompasses some of Colores'
PAGA claims, which should appropriately be split into "individual"
arbitrable claims and "representative" non-arbitrable claims per
the Supreme Court's decision in Viking River Cruises v. Moriana,
___ U.S. ___, 142 S.Ct. 1906, 1923-26 (2022).
Because the Agreement does not prohibit Colores from bringing
agent/proxy claims on behalf of the State, Judge Thurston holds
that it is not an impermissible "wholesale" PAGA waiver, and
Colores' claims may be split into "individual" and "non-individual"
or "representative" PAGA claims. She therefore concludes that Ray
Moles is entitled to enforce the Agreement to the extent that it
mandates arbitration of Colores' individual PAGA claim.
As to Colores' remaining, non-individual PAGA claim, the question
remains whether Colores' claim should be dismissed or stayed. As
several other courts have done, Judge Thurston stays Colores'
representative PAGA claims -- and all unresolved motions related to
those claims -- pending further legal developments.
A full-text copy of the Court's March 31, 2023 Order is available
at https://tinyurl.com/3r8wjt7e from Leagle.com.
RJ REYNOLDS: Awarded $13.5-M Verdict Over Smoker's Cancer Death
---------------------------------------------------------------
Arlin Crisco of CVN Courtroom View Network reports that jurors
April 4, 2023 handed down a $13.5 million verdict at trial against
R.J. Reynolds over the 1996 cancer death of a Florida smoker. Rey
v. R.J. Reynolds Tobacco Co., 2007-CA-046340.
The award, to Fernando Rey's three children, followed the Florida
State 11th Circuit Court jury's finding that Rey's addiction to
R.J. Reynolds' Camel-brand cigarettes ultimately caused his fatal
lung cancer. However, jurors apportioned 40 percent of
responsibility to Rey himself and declined to award punitive
damages in the case, likely reducing the post-verdict award.
Rey immigrated to the U.S. from Cuba as an 11-year old in 1960, and
began smoking as a teenager, favoring Reynolds' unfiltered Camel
cigarettes. Rey's 1996 death came six months after doctors
diagnosed him with cancer. His children contend Reynolds is
responsible for their father's fatal lung cancer by selling
cigarettes the company knew were dangerous.
The case is one of thousands of so-called "Engle-progeny" claims,
lawsuits spun from an ultimately decertified 1990s class action by
Florida smokers against the nation’s tobacco companies. In
decertifying the class following a trial court verdict against the
companies, the Florida Supreme Court ruled that individual Engle
progeny plaintiffs can recover only if they prove the smoker at the
heart of each case was addicted to cigarettes that legally caused a
smoking-related illness.
What legally caused Rey's cancer, and who should bear
responsibility for the consequences of his smoking, served as a key
point of contention during the 10-day trial, with Reynolds
contending that Rey's own smoking-related decisions caused the
fatal disease. During April 3, 2023's closings, King & Spalding's
Randy Basset reviewed evidence, including testimony from Rey's
wife, that he said showed Rey enjoyed cigarettes, and was warned
for years about the risks of smoking, but was never truly
interested in quitting.
"We know he was making his own smoking decisions and did not want
to quit," Bassett told jurors. "When people were approaching him
about quitting, he never even stopped. He never stopped for 24
hours."
But while Rey's attorneys acknowledged that Rey himself bore some
responsibility for failing to quit in time to avoid his cancer,
they argued his addiction to nicotine fueled his smoking and
ultimately caused his death. During April 3, 2023's closings, The
Alvarez Law Firm's Nick Reyes spotlighted evidence he said showed
Rey was so hooked to cigarettes he was unable to quit, despite
using various smoking-cessation aids. And he argued the fault lies
with Reynolds, which he said leveraged nicotine addiction to drive
cigarette sales.
"R.J. Reynolds admits that nicotine is a substantial and important
chemical that keeps addicted smokers smoking," Reyes said. "It is
the most important factor of why people smoke. The addiction.
They're admitting it, too. This is the smoking gun."
Email Arlin Crisco at acrisco@cvn.com. [GN]
SCRIBEAMERICA LLC: Fails to Pay Proper Wages, Garfield Alleges
--------------------------------------------------------------
JULIA GARFIELD, individually and on behalf of all others similarly
situated, Plaintiff v. SCRIBEAMERICA, LLC, Defendant, Case No.
0:23-cv-60647-RS (S.D. Fla., April 5, 2023) seeks to recover from
the Defendants unpaid wages and overtime compensation, interest,
liquidated damages, attorneys' fees, and costs under the Fair Labor
Standards Act.
Plaintiff Garfield was employed by the Defendant as a medical
scribe.
SCRIBEAMERICA, LLC provides scribe training and management
services. The Company specializes in testimonials, emergency
medicine, hospital medicine, outpatient medicine, urgent care
centers, telescribes, and medical education services. [BN]
The Plaintiff is represented by:
Janet Varnell, Esq.
Brian W. Warwick, Esq.
VARNELL & WARWICK P.A.
1101 E. Cumberland Ave., Ste. 201H, #105
Tampa, FL 33602
Telephone: (352) 753-8600
Facsimile: (352) 504-3301
Email: jvarnell@vandwlaw.com
bwarwick@vandwlaw.com
ckoerner@vandwlaw.com
- and -
Camille Fundora Rodriguez, Esq.
Alexandra K. Piazza, Esq.
Michael J. Anderson, Esq.
BERGER MONTAGUE PC
1818 Market Street, Suite 3600
Philadelphia, PA 19103
Telephone: (215) 875-3000
Facsimile: (215) 875-4604
Email: crodriguez@bm.net
apiazza@bm.net
manderson@bm.net
SEATTLE CITY LIGHT: Final OK of Deien's Class Settlement Affirmed
-----------------------------------------------------------------
In the case, ANTHONY DEIEN, on behalf of himself and all others
similarly situated, Respondent v. SEATTLE CITY LIGHT, Respondent,
MATTHEW PAMPENA, Appellant/Objector, Case No. 84056-8-I (Wash.
App.), the Court of Appeals of Washington, Division One, affirms
the trial court's order granting final approval to the proposed
settlement agreement.
On Aug. 21, 2019, Deien, a former Seattle City Light (SCL)
customer, filed a class action complaint against the public utility
in the King County Superior Court. The complaint alleged that SCL
inaccurately estimated electricity meter readings following its
attempt to transition to digital meter readers, resulting in
estimated bills to customers that were "often wildly inaccurate"
and subsequent "true up" bills that were five, ten, or even thirty
times the amounts of customers' prior bills.
As a result, the complaint alleged, SCL often charged customers for
electricity they did not use and charged higher rates than the
rates authorized by the municipal code. Premised on these
allegations, the complaint asserted claims for breach of contract
and the duty of good faith and fair dealing, violation of the
Washington Consumer Protection Act (CPA), chapter 19.86 RCW, and
violation of chapter 80.04 RCW and WAC 480-100.
During discovery, Deien obtained nearly 70,000 pages of documents
and millions of billing data records. Both Deien and SCL engaged
experts to conduct analyses of the voluminous billing records. The
parties thereafter engaged in mediation in November 2020 and
February 2021. After more than six months of additional
negotiations, Deien and SCL finalized and executed a settlement
agreement resolving the asserted claims. Throughout the parties'
negotiations, a motion to dismiss the case, having been filed by
SCL, was pending in the trial court.
On Sept. 29, 2021, Deien filed a motion for preliminary approval of
the settlement agreement. The trial court granted preliminary
approval and set forth a deadline by which putative class members
were required to file any objections to the settlement. On Feb. 28,
2022, Matthew Pampena filed the sole objection to the settlement
agreement. He asserted that the agreement's application of an
"estimated electricity usage table," required to be used by SCL in
performing billing recalculations, would not provide meaningful
relief to putative class members.
On April 15, 2022, following a final approval hearing, the trial
court overruled Pampena's objection and granted final approval of
the settlement agreement. The court conditionally certified the
class for settlement purposes and determined that notice to the
settlement class members was sufficient. With regard to Pampena's
objection, the court does not agree that the injunctive relief
provisions as written will make it too difficult for consumers to
have bills recalculated in appropriate cases. Thus, the court
granted final approval of the settlement agreement as fair,
reasonable, adequate, just, and in compliance with all applicable
requirements of the applicable laws, and in the best interest of
the Settlement Class.
Pampena appeals. On appeal, he asserts for the first time that the
settlement agreement is structured to avoid meaningful oversight of
SCL's compliance with its provisions and, thus, that the trial
court erred in granting final approval of the settlement.
The Court of Appeals opines that when the trial court determines
that a class action settlement agreement is fair, adequate, and
reasonable, it intervenes in the judicially approved settlement
only on a clear showing that the court abused its considerable
discretion in so ruling. Moreover, it will not conclude that the
trial court abused discretion that it had no opportunity to
exercise due to an objector's failure to raise a particular
objection to the settlement before that court. Indeed, the general
rule that an argument must be presented to the trial court in order
to be preserved for appeal is particularly salient in the context
of a class action settlement, where due process concerns mandate
that putative class members are informed regarding proposed
objections.
The Court of Appeals concludes that it adheres to the longstanding
rule that a litigant may not raise an argument on appeal that he
refrained from raising in the trial court, particularly when, as in
the case, the rationale for applying that rule is especially
salient. Accordingly, it declines to address this assertion of
error.
First, the Court of Appeals declines to review an objection to the
settlement that Pampena failed to raise in the trial court. Next,
it concludes that the sole objection that is preserved on appeal
does not undermine the sufficiency of the trial court's reasons for
approving the settlement. Thus, the Court of Appeals holds that the
trial court did not abuse its discretion in ruling that the
settlement agreement is fair, adequate, and reasonable.
Accordingly, it affirms the trial court's approval of the class
settlement.
A full-text copy of the Court's April 4, 2023 Opinion is available
at https://tinyurl.com/yck4y33j from Leagle.com.
Nicholas Stephan Joh Boebel -- nboebel@hansenreynolds.com -- Hansen
Reynolds LLC, 225 S 6th St Ste 3900, Minneapolis, MN, 55402-4622,
Counsel for the Appellant(s).
Beth Ellen Terrell -- bterrell@terrellmarshall.com -- Terrell
Marshall Law Group PLLC, 936 N 34th St Ste 300, Seattle, WA,
98103-8869, Blythe H Chandler -- bchandler@terrellmarshall.com --
Terrell Marshall Law Group PLLC, 936 N 34th St Ste 300, Seattle,
WA, 98103-8869, Elizabeth Anne Adams -- eadams@terrellmarshall.com
-- Terrell Marshall Law Group PLLC, 936 N 34th St Ste 300, Seattle,
WA, 98103-8869, Aravind Swaminathan -- aswaminathan@orrick.com --
Orrick, Herrington & Sutcliffe LLP, 401 Union St., Suite 3300,
Seattle, WA, 98101, Nicole Mikiko Tadano -- ntadano@orrick.com --
Attorney at Law, 401 Union Street, Suite 3300, Seattle, WA, 98101,
Thomas Fu -- tfu@orrick.com -- Orrick, Herrington & Sutcliffe LLP,
355 S Grand Ave, Suite #2700, Los Angeles, CA, 90071, Counsel for
the Respondent(s).
STEEL PAN: Faces Grigoriou Suit Over Nonpayment of Proper Wages
---------------------------------------------------------------
ANDREAS GRIGORIOU, on behalf of himself and others similarly
situated, Plaintiff v. STEEL PAN LLC, 447 3RD AVE FOOD CORP., 449
RESTAURANT INC. and JOHN CAPITANOS a/k/a JOHN KAPETANOS,
Defendants, Case No. 1:23-cv-02708 (S.D.N.Y., March 31, 2023) seeks
remedy for violations of the Fair Labor Standards Act and the New
York State Labor Law.
The Plaintiff was employed by Defendants, where he worked as a
server at their various restaurants from approximately 2014 until
March 2021. For some period of time, the Plaintiff never received
proper wage statements during his employment as required under the
NYLL. Allegedly, the Defendants also violated the FLSA by, among
other things, failing to pay Plaintiff the applicable minimum wage
rates for all hours worked.
Steel Pan LLC is a domestic limited liability corporation with its
principal place of business located at 447 3rd Avenue, New York,
New York 10016. SP operated Greek restaurants located in New York
City, including Ethos and Eros. [BN]
The Plaintiff is represented by:
Yale Pollack, Esq.
LAW OFFICES OF YALE POLLACK, P.C.
66 Split Rock Road Syosset, NY 11791
Telephone: (516) 634-6340
E-mail: ypollack@yalepollacklaw.com
SVB FINANCIAL: Faces Class Action Suit Over Securities Violations
-----------------------------------------------------------------
The Joplin Globe reports that on April 7, 2023, prominent investor
rights law firm Bernstein Litowitz Berger & Grossmann LLP ("BLB&G")
filed a class action lawsuit for violations of the federal
securities laws in the U.S. District Court for the Northern
District of California against certain of SVB Financial Group's
("SVB" or the "Company") senior executives, members of the
Company's Board of Directors, the underwriters of SVB's public
offerings, and the Company's auditing firm KPMG, LLP (collectively,
"Defendants"). The complaint expands the claims that were asserted
in the previously filed related securities class actions pending on
behalf of SVB investors captioned Vanipenta v. SVB Financial Group,
No. 3:23-cv-01097-JD (N.D. Cal.); Snook v. SVB Financial Group, No.
3:23-cv-01173-VC (N.D. Cal.); and Siddiqui v. Becker, No.
4:23-cv-01228-HSG (N.D. Cal.), and is brought on behalf of all
persons or entities that purchased or otherwise acquired SVB
securities: (i) between January 22, 2021, and March 10, 2023,
inclusive (the "Class Period"); and/or (ii) pursuant and/or
traceable to the Company's public securities offerings on or around
January 26, 2021, March 22, 2021, May 6, 2021, August 9, 2021,
October 25, 2021, and April 26, 2022 (the "Offerings").
BLB&G filed this action on behalf of its clients, City of Hialeah
Employees' Retirement System, Asbestos Workers Philadelphia Welfare
and Pension Fund, and Heat & Frost Insulators Local 12 Funds, and
the case is captioned City of Hialeah Employees' Retirement System,
Asbestos Workers Philadelphia Welfare and Pension Fund, and Heat &
Frost Insulators Local 12 Funds v. Becker, No. 23-cv-1697 (N.D.
Cal.). The complaint is based on an extensive investigation and a
careful evaluation of the merits of this case. A copy of the
complaint is available on BLB&G's website by clicking here.
SVB's Alleged Fraud
SVB is a diversified financial services company, and is the parent
company of Silicon Valley Bank, a California state-chartered bank,
primarily providing banking and financial services in the
technology and life science/healthcare industries as well as to
global private equity and venture capital clients. Prior to the
Class Period, SVB filed a shelf registration statement authorizing
the Company to "offer and sell from time to time any combination of
the securities described in [the registration statement] in one or
more offering." During the Class Period, SVB issued prospectuses in
connection with the Offerings that incorporated the shelf
registration statement.
The complaint alleges that, in the prospectuses issued in
connection with the Offerings, and throughout the Class Period,
some or all Defendants misrepresented the strength of the Company's
balance sheet, liquidity, and position in the market. Among other
things, Defendants understated and concealed the magnitude of the
risks facing the Company's business model that would result from
any decision by the Federal Reserve system raising the federal
funds rate. As a result of Defendants' misrepresentations and
omissions, SVB's stock traded at artificially inflated prices
during the Class Period.
The truth began to emerge on July 21, 2022, when SVB announce
disappointing second quarter 2022 financial results and slashed its
2022 financial guidance. Among other things, SVB lowered its
expected net interest income ("NII") growth to the mid-forties,
down from its April 2022 guidance projecting growth in the low
fifties. In response to this news, SVB common stock declined $74.81
per share, or more than 17%. Then, on October 20, 2022, SVB
reported disappointing financial results for the third quarter of
2022, further reduced its 2022 financial guidance, and again
lowered its expected NII to the low forties. In response to this
news, the price of SVB common stock fell $72.43 per share, or
approximately 24%. Finally, after the market closed on March 8,
2023, SVB announced it was seeking to raise approximately $2.25
billion in capital to address its mushrooming liquidity issues
after having incurred a loss of approximately $1.8 billion on the
sale of its available for sale securities portfolio. In response to
this news, the price of SVB common stock fell $161.79 per share, or
more than 60%. Similarly, on this news, the price of SVB preferred
stock fell $4.27 per share, or more than 21%.
The filing of this action does not alter the previously established
deadline to seek appointment as Lead Plaintiff. Pursuant to the
March 13, 2023 notice published in connection with the Vanipenta
action, under the Private Securities Litigation Reform Act of 1995,
investors that purchased or otherwise acquired SVB securities: (i)
between January 22, 2021, and March 10, 2023; and/or (ii) pursuant
and/or traceable to the Offerings may, no later than May 12, 2023,
seek to be appointed as Lead Plaintiff for the Class. Any member of
the proposed Class may seek to serve as Lead Plaintiff through
counsel of their choice or may choose to do nothing and remain a
member of the proposed Class.
If you wish to discuss this action or have any questions concerning
this notice or your rights or interests, please contact Scott R.
Foglietta of BLB&G at 212-554-1903, or via e-mail at
scott.foglietta@blbglaw.com.
About BLB&G
BLB&G is widely recognized worldwide as a leading law firm advising
institutional investors on issues related to corporate governance,
shareholder rights, and securities litigation. Since its founding
in 1983, BLB&G has built an international reputation for excellence
and integrity and pioneered the use of the litigation process to
achieve precedent-setting governance reforms. Unique among its
peers, BLB&G has obtained some of the largest and most significant
securities recoveries in history, recovering over $37 billion on
behalf of investors. More information about the firm can be found
online at www.blbglaw.com.
View source version on
businesswire.com:https://www.businesswire.com/news/home/20230407005160/en/
CONTACT: Scott R. Foglietta
Bernstein Litowitz Berger & Grossmann LLP
1251 Avenue of the Americas, 44th Floor
New York, New York 10020
(212) 554-1903
scott.foglietta@blbglaw.com [GN]
TARGET CORP: Bids for Lead Plaintiff Appointment Due May 19
-----------------------------------------------------------
Robbins Geller Rudman & Dowd LLP of Cision PR Newswire reports that
purchasers or acquirers of Target Corporation (NYSE: TGT) common
stock between August 18, 2021 and May 17, 2022, both dates
inclusive (the "Class Period") have until May 30, 2023 to seek
appointment as lead plaintiff of the Target class action lawsuit.
Captioned Perez v. Target Corporation, No. 23-cv-00769 (D. Minn.),
the Target class action lawsuit charges Target as well as certain
of Target's top executives with violations of the Securities
Exchange Act of 1934.
If you suffered substantial losses and wish to serve as lead
plaintiff of the Target class action lawsuit, please provide your
information here:
https://www.rgrdlaw.com/cases-target-corporation-class-action-lawsuit-tgt.html
You can also contact attorney J.C. Sanchez of Robbins Geller by
calling 800/449-4900 or via e-mail at jsanchez@rgrdlaw.com.
CASE ALLEGATIONS: Despite Target's runaway success in 2020,
Target's revenue was constrained by its inability to keep its
shelves fully stocked. To mitigate the risk that replenishment of
in-demand goods could take longer than usual going into the second
half of 2021, Target announced that it had been ordering larger
upfront quantities in advance of season to ensure that shelves were
stocked with products consumers wanted, when they wanted them.
But as the Target class action lawsuit alleges, defendants
throughout the Class Period made false and/or misleading statements
and/or failed to disclose that: (i) Target's strategy for
mitigating supply-chain constraints by over-ordering inventory had
severely limited Target's ability to timely respond to evolving
consumer behavior; (ii) consequently, the purported "massive influx
of insights" gained from the extraordinary heightened demand during
the pandemic could not be leveraged by Target to react to rapidly
changing trends; and (iii) as a result of Target's inability to
timely react to changes in consumer trends, Target's sales declined
and Target was left with an overabundance of inventory, forcing
Target to take large markdowns, and severely impacting Target's
financial results.
On May 18, 2022, Target revealed that contrary to defendants'
public statements, Target's "durable, flexible" business strategy
was thwarted by its practice of ordering inventory before it was
needed, resulting in overstocked, unsellable inventory taking up
valuable store shelf space and leaving Target unable to quickly
pivot to meet changing consumer preferences as represented. This
resulted in Target's inventory increasing by nearly $1.1 billion
over the previous quarter and overweight in "bigger, bulkier"
hardline and home products that Target was now forced to mark down
to "make room for fast-growing categories." Thus, Target's revenue
and gross margin declined nearly 19% and 4.3%, respectively, for
the quarter and defendants also admitted that they expected the
excess inventory to negatively affect earnings into the next
quarter. On this news, Target's stock price declined by nearly 25%,
damaging investors.
THE LEAD PLAINTIFF PROCESS: The Private Securities Litigation
Reform Act of 1995 permits any investor who purchased or acquired
Target common stock during the Class Period to seek appointment as
lead plaintiff of the Target class action lawsuit. A lead plaintiff
is generally the movant with the greatest financial interest in the
relief sought by the putative class who is also typical and
adequate of the putative class. A lead plaintiff acts on behalf of
all other class members in directing the Target class action
lawsuit. The lead plaintiff can select a law firm of its choice to
litigate the Target class action lawsuit. An investor's ability to
share in any potential future recovery is not dependent upon
serving as lead plaintiff of the Target class action lawsuit.
ABOUT ROBBINS GELLER: Robbins Geller is one of the world's leading
complex class action firms representing plaintiffs in securities
fraud cases. The Firm is ranked #1 on the most recent ISS
Securities Class Action Services Top 50 Report for recovering more
than $1.75 billion for investors in 2022 - the third year in a row
Robbins Geller tops the list. And in those three years alone,
Robbins Geller recovered nearly $5.3 billion for investors, more
than double the amount recovered by any other plaintiffs' firm.
With 200 lawyers in 9 offices, Robbins Geller is one of the largest
plaintiffs' firms in the world and the Firm's attorneys have
obtained many of the largest securities class action recoveries in
history, including the largest securities class action recovery
ever - $7.2 billion - in In re Enron Corp. Sec. Litig. Please visit
the following page for more information:
https://www.rgrdlaw.com/services-litigation-securities-fraud.html
Contact:
Robbins Geller Rudman & Dowd LLP
655 W. Broadway, Suite 1900, San Diego, CA 92101
J.C. Sanchez, 800-449-4900
jsanchez@rgrdlaw.com [GN]
TESLA INC: Monopolizes Electric Vehicle Market, Doyle Suit Alleges
------------------------------------------------------------------
PATRICK DOYLE, individually and on behalf of all others similarly
situated, Plaintiff v. TESLA, INC., Defendant, Case No.
3:23-cv-01543 (N.D. Cal., March 31, 2023) alleges that Tesla
violated antitrust laws by abusing its monopoly power in the
electric vehicle market.
Allegedly, Tesla has been restraining competition and charging
supracompetitve prices for its maintenance services and parts in
the US. Tesla accomplishes this by requiring that Tesla vehicles be
diagnosed by tools that can only be accessed by Tesla, placing
conditions on Tesla vehicles that are designed to discourage owners
from servicing and/or maintaining their Tesla vehicles anywhere
other than at a Tesla service center, and limiting access to tools,
data, and Tesla parts that owners, such as Plaintiff, need to
maintain and/or repair their Tesla vehicles.
Tesla is a multinational automotive and clean energy company
founded in Palo Alto, California in 2003. By 2014, Tesla had become
the largest automotive employer in the state of California. In
December 2021, Tesla moved its headquarters to Austin, Texas.
However, Tesla maintains manufacturing facilities in Fremont,
California, where it produces the Model S, Model 3, Model X, and
Model Y. [BN]
The Plaintiff is represented by:
Daniel L. Warshaw, Esq.
Michael H. Pearson, Esq.
PEARSON WARSHAW, LLP
15165 Ventura Boulevard, Suite 400
Sherman Oaks, CA 91403
Telephone: (818) 788-8300
Facsimile: (818) 788-8104
E-mail: dwarshaw@pwfirm.com
mpearson@pwfirm.com
- and -
Jill M. Manning, Esq.
PEARSON WARSHAW, LLP
555 Montgomery Street, Suite 1205
San Francisco, CA 94111
Telephone: (415) 433-9000
Facsimile: (415) 433-9008
E-mail: jmanning@pwfirm.com
TESLA INC: Shares Employees' Private Videos, Yeh Suit Claims
------------------------------------------------------------
Jameson Dow of Electrek reports that a class action lawsuit has
been filed against Tesla, after news broke of employees sharing
private videos internally.
The original report from Reuters came out on April 6, 2023. Reuters
talked to several Tesla employees who said that Tesla dashcam and
sentry mode videos were shared within Tesla in private or group
chats among employees.
These images and videos included pictures of dogs, funny road
signs, and other innocuous content, but also included videos of the
inside of garages, of owners' children, and even a video of a man
approaching a vehicle naked.
Tesla recently released a more detailed look at its data privacy
approach, in which it asserted that most data is processed directly
on vehicles and only certain data is shared with Tesla. Most of
that data is anonymized unless associated with a "safety critical
event."
But the report suggests that even though Tesla says it anonymized
data, personally identifiable information, including address data,
may have been attached to these videos when shared within internal
group chats.
Now, we've seen one law firm respond swiftly to these allegations
by filing a class action lawsuit only one day after the
revelations. The lawsuit was filed in the US District Court in
Northern California by law firm Fitzgerald Joseph LLP on behalf of
Henry Yeh, a Tesla owner in San Francisco.
The suit claims that the company violated California's state
Constitution, California privacy laws, and its own privacy
policies. It also claims that Tesla misled customers about data
privacy. It asks for Tesla to be enjoined from continuing this
behavior, and seeks recovery of actual and punitive damages. The
damages sought are not enumerated, except that the number is in
excess of $5 million.
The lawsuit claims that there are significant potential costs to
Tesla customers related to privacy. In order to disable the car's
cameras, an owner would need to pay a professional to disable them,
thus reducing paid-for functionality of the car. One former Tesla
employee quoted by Business Insider said that he put tape over his
own car's cameras for a time, after seeing how much access to
information Tesla had.
But this is only the first step of a class action lawsuit. First of
all, the law firm filing this doesn't have access to the evidence
in question yet, that will come later during discovery.
Since Reuters' report only dropped on April 7, 2023, the lawsuit
includes speculation – stating that these videos were "likely"
shared externally, though this is not explicitly stated in the
report. So filing the lawsuit so quickly does seem a little
opportunistic, with the firm wanting to be the first to stake claim
to this potential suit.
It also must be decided by a judge whether this is a legitimate
class action and whether Fitzgerald Joseph LLP will be able to move
forward representing the class. [GN]
TMX FINANCE: Fails to Prevent Data Breach, Carder Suit Alleges
--------------------------------------------------------------
RYAN CARDER, individually and on behalf of all others similarly
situated, Plaintiff v. TMX FINANCE CORPORATE SERVICES, INC.; and
TMX FINANCE, LLC, Defendants, Case No. 4:23-cv-00088-WTM-CLR (S.D.
Ga., April 6, 2023) alleges that the Defendants failed implement
reasonable measures to protect the personal identifiable
information of the Plaintiff and the Class against data breach.
On March 30, 2023, the Defendant disclosed, for the first time, a
cyber-attack that began in December 2022 and resulting in the
exfiltration, between February 3, 2023 and February 14, 2023, of
the personal identifiable information of approximately 4,822,580
consumers..
The hackers who undertook the data breach accessed critical PII
including, at the very least, names, dates of birth, passport
numbers, driver's license numbers, federal/state identification
card numbers, tax identification numbers, social security numbers
and/or financial account information, and other information such as
phone numbers, addresses, and email addresses. The Data Breach was
a direct result of Defendant's failure to implement adequate and
cyber-security procedures and protocols necessary to protect
Plaintiff's and Class Members' PII, says the suit.
TMX FINANCE LLC operates as a consumer finance company. The Company
provides loans and consumer credit products. [BN]
The Plaintiff is represented by:
C. Ryan Morgan, Esq.
MORGAN AND MORGAN
200 Stephenson Ave, Suite 200
Savannah, GA 31405
Telephone: (912) 443-1006
Email: rmorgan@forthepeople.com
- and -
John A. Yanchunis, Esq.
Ryan D. Maxey, Esq.
MORGAN & MORGAN COMPLEX BUSINESS DIVISION
201 N. Franklin Street, 7th Floor
Tampa, FL 33602
Telephone: (813) 223-5505
Email: jyanchunis@ForThePeople.com
rmaxey@ForThePeople.com
- and -
Stephen R. Basser, Esq.
Samuel M. Ward, Esq.
BARRACK, RODOS & BACINE
600 West Broadway, Suite 900
San Diego, CA 92101
Telephone: (619) 230-0800
Facsimile: (619) 230-1874
Email: sbasser@barrack.com
sward@barrack.com
- and -
Andrew J. Heo, Esq.
BARRACK, RODOS & BACINE
Two Commerce Square
2001 Market Street, Suite 3300
Philadelphia, PA 19103
Telephone: (215) 963-0600
Facsimile: (215) 963-0838
Email: aheo@barrack.com
- and -
John G. Emerson, Esq.
EMERSON FIRM, PLLC
2500 Wilcrest, Suite 300
Houston, TX 77042
Telephone: (800) 551-8649
Facsimile: (501) 286-4659
TOP SURGEONS: Judgment After Final Approval of Faitro Deal Affirmed
-------------------------------------------------------------------
In the case, JOHN FAITRO, et al., Plaintiffs and Respondents v. TOP
SURGEONS, INC., et al., Defendants and Appellants, Case No. B307742
(Cal. App.), the Court of Appeals of California, Second District,
Division Four, affirms the trial court's entry of judgment after
granting the motion approving the class action settlement.
In 2011, the Plaintiffs filed a class action lawsuit against 15
Defendants comprised of individuals and affiliated surgical
centers. The operative complaint alleged violations under the
Unfair Competition Law (Bus. & Prof. Code, Section 17200 et seq.),
the False Advertising Law (Bus. & Prof. Code, Section 17500 et
seq.) and the Consumer Legal Remedies Act (Civ. Code, Section 1750
et seq.), based on the Defendants' advertising campaign for "lap
band" weight loss surgeries.
In 2015, the parties executed a final class action settlement
agreement. The settlement agreement defined the "Settling
Defendant" as Top Surgeons, the "Guarantying Defendant" as Surgery
Center Management, and the "Dismissed Defendants" as Surgery Center
Management along with the remaining defendants. The Settling
Defendant was to wire to a qualified settlement fund, set up by a
claims administrator, the sum of $500,000 within 15 business days
of the Court granting final approval of the Settlement." If the
Settling Defendant cannot or does not transfer payment of the
Settlement Funds as set forth in this Settlement Agreement, the
Guarantying Defendant will be responsible for payment of the
Settlement Funds within seven calendar days of receiving notice
that the Settling Payment has not transferred the Settlement Funds
as required.
The Settling Defendant and the Guarantying Defendant represent and
warrant that each is financially solvent at the time of entering
into this Settlement Agreement. The agreement further stated, the
Dismissed Defendants make no monetary contribution or payment
toward settlement and are not apportioned any fault in connection
with the Claims and causes of action and are hereby dismissed for
waivers of costs, attorneys' fees, and claims for malicious
prosecution.
The settlement agreement provided for the Settling Defendant to pay
attorney fees and costs: The Defendants will not oppose the
Plaintiffs' Counsel's application to the appropriate court for
attorneys' fees up to and including the amount of $600,000 and
expenses not to exceed $52,000. The Parties acknowledge that the
Court may award less than the amount requested but that such lesser
award will not invalidate this Settlement. The agreement also
required payment for $100,000 in educational advertising, up to
$75,000 in settlement administration costs, and $1,000 each for the
nine class representatives.
The settlement agreement included an arbitration clause providing
that any dispute, controversy, or claim arising out of or relating
to this Settlement Agreement (including its meaning and effect)
will first be submitted to and decided by confidential arbitration,
with the arbitrator's decision subject to the court's review and
approval.
On Oct. 15, 2015, the trial court granted the Plaintiffs' motion
for preliminary approval of the class action settlement, which
included the proposed class notice. No opposition was filed by the
Defendants.
Five years later, on March 6, 2020, the Plaintiffs filed a motion
for final approval of the settlement agreement, attorney fees and
costs, administration costs, and incentive payments to the class
representatives. On Aug. 17, 2020, the trial court granted final
approval of the settlement agreement, determining that the
settlement was fair and reasonable and benefitted the class. It
awarded the Plaintiffs $600,000 in attorney fees, $52,000 in costs,
and $75,000 in administration costs. Furthermore, it awarded $9,000
in incentive payments, with $1,000 going to each of the nine class
representatives. All objections were overruled. The Plaintiffs were
ordered to prepare and lodge a proposed judgment.
On Sept. 21, 2020, the Plaintiffs filed a motion for entry of
judgment requesting the trial court enters judgment against all 15
named Defendants, jointly and severally.
On Oct. 23, 2020, the trial court found that judgment may only be
entered as to Top Surgeons, LLC and Surgery Center Management, LLC
as, respectively, the Settling Defendant and the Guarantying
Defendant. It therefore took the Plaintiffs' motion for entry of
judgment against all the Defendants off-calendar and entered
judgment against Top Surgeons and Surgery Center Management only.
It took a pending petition to compel arbitration off calendar as
moot.
That same day, the trial court signed the judgment prepared by the
Plaintiffs. The names of all the Defendants except Top Surgeons and
Surgery Center Management were blacked out in the caption. However,
paragraph 7 of the judgment listed all 15 named Defendants and
directed them, "jointly and severally, to pay the settlement sum of
$1,363,000" within 15 days to the claim administrator. The
administrator would in turn distribute all funds to the class
members, attorneys, and the class representatives within 30
calendar days after receipt of the settlement funds. The judgment
ordered the release of any claims against the Defendants upon
satisfaction of all payments and obligations under the Settlement
Agreement and under the Order.
The Defendants filed a notice of appeal from the Oct. 23, 2020
judgment and the order denying the petition to compel arbitration.
The Court of Appeals granted the Defendants' motion to consolidate
the two appeals, and subsequently invited briefing from the parties
on standing, waiver, forfeiture, and nonappealability issues. On
Nov. 23, 2022, the parties submitted their respective letter
briefs.
At oral argument on Jan. 12, 2023, the Plaintiffs' counsel informed
the Court of Appeals that Top Surgeons' corporate charter had been
suspended by the California Secretary of State on Aug. 2, 2021,
after the filing of Top Surgeons' notice of appeal but prior to the
filing of its opening brief. The Plaintiffs' counsel argued a
corporation must be in good standing to defend and participate in
an appeal.
On Jan. 17, 2023, the Plaintiffs filed a request for judicial
notice of a copy of the Certificate of Status from the Secretary of
State for Top Surgeons, evidencing that its corporate status was
suspended by the California Franchise Tax Board. On Jan. 25, 2023,
Top Surgeons filed a motion for a 30-day continuance to effect
revivor of its corporate charter, which the Court of Appeals
granted on Jan. 31, 2023. On March 2, 2023, Top Surgeons filed a
copy of the Certificate of Revivor evidencing Top Surgeons was
relieved of suspension or forfeiture and is now in good standing
with the Franchise Tax Board. Because Top Surgeons is now a
corporation in good standing, it may participate and defend in the
action.
The Defendants raise a host of alleged shortcomings with the
proceedings, including: (1) the Plaintiffs' breaches of the
settlement agreement that undermined the propriety of the class
action settlement; (2) material departures from the settlement
agreement in the trial court's judgment; (3) an unreasonably high
attorney fee award for class counsel; and (4) the "denial" of the
petition to compel arbitration.
As a preliminary matter, the Court of Appeals concludes only two of
the Defendants (Top Surgeons, LLC and Surgery Center Management,
LLC) have standing to challenge the judgment, given that the
judgment was not entered against the remaining Defendants, and they
were not aggrieved by it. In addition, while Top Surgeons and
Surgery Center Management generally have standing on appeal, they
nevertheless lack standing to raise issues that affect class
members only.
For the most part, the Court of Appeals rejects the contention that
the judgment altered the terms of the parties' settlement agreement
instead of mirroring them as it should have. It opines that the
judgment did alter two material terms as to the financial
obligation of Surgery Center Management and the timeline for
payment of the settlement amount; it thus modifies the judgment to
reflect the terms agreed upon in the settlement agreement on those
points.
To the extent the issue has not been waived, the Court of Appeals
rejects the contention that the trial court failed to properly
scrutinize the attorney fee award, and it finds no abuse of
discretion in the amount of the award.
As modified, the Court of Appeals affirms the judgment. The trial
court's order taking the petition to compel arbitration off
calendar is a nonappealable order, and the Court of Appeals
dismisses the appeal taken from that order.
A full-text copy of the Court's April 4, 2023 Opinion is available
at https://tinyurl.com/36x2a3w7 from Leagle.com.
Kamille Dean -- kamille@kamilledean.com -- for Defendants and
Appellants Michael Omidi, M.D., and Cindy Omidi.
Mark Madison -- mmadison243@gmail.com -- for Defendants and
Appellants Almont Ambulatory Surgery Center, Inc.; Antelope Valley
Surgical Center, Inc.; Beverly Hills Surgery Center, LLC;
California Hospital Management & Collections, Inc.; Lap Band
Specialists, LLC; New Life Surgery Center, LLC; Skin Cancer and
Reconstructive Surgery Specialists of Beverly Hills; Skin Cancer
and Reconstructive Surgery Specialists of Valencia; Top Surgeons,
LLC; Woodlake Ambulatory Surgery Center, Inc.; and 1 800 Get Thin,
LLC.
Ian Shakramy -- ian@shakramylaw.com -- for Defendants and
Appellants Surgery Center Management, LLC.
Julian Omidi, in pro. per., for Defendant and Appellant Julian
Omidi.
Law Offices of John M. Walker and John M. Walker -- fugue@well.com;
Robertson & Associates and Alexander Robertson, IV --
arobertson@arobertsonlaw.com -- for the Plaintiffs and
Respondents.
TRUSTEES OF UNITE HERE: Court Narrows Claims in Acosta ERISA Suit
-----------------------------------------------------------------
In the case, JOSE LUIS ACOSTA, et al., Plaintiffs v. BOARD OF
TRUSTEES OF UNITE HERE HEALTH, et al., Defendants, Case No. 22 C
1458 (N.D. Ill.), Judge Harry D. Leinenwebber of the U.S. District
Court for the Northern District of Illinois, Eastern Division,
grants in part and denies in part the Defendants' motion to dismiss
all counts of claims.
The Named Plaintiffs bring the proposed class action suit on behalf
of similarly situated current and former Unite Hire Health
participants against Defendant Board of Trustees of UNITE HERE
Health and Does 1 through 10 for multiple violations under the
Employee Retirement Income Security Act (ERISA) statute.
Unite Hire Health (UHH) is a multiemployer employee welfare benefit
plan as defined in ERISA. Pursuant to ERISA, UHH was created and is
maintained pursuant to an Agreement and Declaration of Trust. UHH
is divided into approximately 16 to 19 functional benefit programs
called "Plan Units."
Defendant Board of Trustees is the "named fiduciary" of UHH as
defined in ERISA section 402(a)(1), 29 U.S.C. Section 1102(a)(1).
Each trustee is a "plan fiduciary" of UHH as defined in ERISA
section 3(21)(A), 29 U.S.C. Section 1002(21)(A).
The Named Plaintiffs are current and former participants in Plan
Units 178, the "Los Angeles Plan Unit" and Plan Unit 27 covering
Orange County and Long Beach. Plan Unit 150 is the "Las Vegas Plan
Unit."
Over the six plan years covered by the Complaint, the annual
administrative expenses allocated by Defendants to Plan Units 178
and 278 were between $1,058 per participant and $1,064 per
participant. During the same period, the annual administrative
expenses per participant allocated to the Las Vegas Plan Unit
totaled between $531 and $582. The expenses did not appear to match
the return on the spending; the better health plans were found with
the lower administrative costs.
In Plan Year 2018, UHH incurred overall administrative expenses at
a rate of $853 per participant. Administrative expenses of the
average comparable self-insured multiemployer health plan were
$719, and for the median comparable self-insured multiemployer
health plan were $663. The In 2019, UHH's rate was $899 per
participant, while the average comparator spent $765 and the median
$718.
The Plaintiffs bring two counts for violation of fiduciary duties
of loyalty and prudence, pursuant to (ERISA Sections 502(a)(2),
502(a)(3), and 409; 29 U.S.C. Sections 1132(a)(2), 1132(a)(3), and
1109), specifically, the unfair allocation of administrative
expenses in Count I and excessive administrative expenses in Count
II. In Count III, the Plaintiffs claim prohibited transactions in
violation of ERISA Section 406, 29 U.S.C. Section 1106. The
Plaintiffs bring Count IV for violation of exclusive purpose rule
of ERISA Section 403, 29 U.S.C. Section 1103. They bring Count V
for restitution and disgorgement, pursuant to ERISA Sections
502(a)(2) and 502(a)(3), 29 U.S.C. Section 1132(a)(2) and
1132(a)(3)).
The Defendants filed a motion to dismiss all counts pursuant to
Federal Rules of Procedure 12(b)(1) and 12(b)(6).
First, the Defendants argue that the Plaintiffs lack the requisite
standing for jurisdiction in federal court. The Plaintiff alleged
that the conduct of the Defendants impacted their end of the
bargain, including in terms of lost wages, higher cost-sharing and
coinsurance payments, and less valuable health benefits.
Judge Leinenwebber holds that Counts I and II survive the
Defendants' motion. He finds that the Plaintiffs showed that
similarly situated funds accrued significantly lower administrative
costs. This finding demonstrates not only consistency but some
likelihood that the fiduciary failed to conduct regular reviews of
its investment. Because the national average and median spend for
was over ten percent lower across the board, it is plausible that
this difference is explained by excessive administrative expenses,
and alternative acceptable explanations appear indeed less likely.
Additionally, the Plaintiff demonstrated irrational differences
between the allocation of administrative expenses.
Next, Judge Leinenwebber agrees with the Defendants that the
Plaintiffs failed to identify a single "prohibited transaction" and
instead resorted to vague allegations that identify neither the
"party in interest" and which part of the statute. He says neither
self-dealing nor any violation of the duty loyalty is presumed with
a violation of the fiduciary duty of prudence. The claims are, of
course, distinct and require different allegations. Absent
specificity regarding self-dealing or other disloyal behavior, the
Plaintiff failed to state a claim for either prohibited
transactions or a violation of the exclusive purpose rule. Counts
III and IV are dismissed.
Finally, the Plaintiffs bring Count V for restitution and
disgorgement, pursuant to ERISA Sections 502(a)(2) and 502(a)(3),
29 U.S.C. Section 1132(a)(2) and 1132(a)(3)). The Defendants'
arguments for dismissal of this count echo their arguments
regarding standing. Judge Leinenwebber finds this issue is
premature at this stage in litigation and declines to decide at
this time.
For these reasons, Judge Leinenwebber grants in part and denies in
part the Defendants' motion to dismiss. In ruling on this motion,
he grants the Defendants' Motion to Supplement Authority and the
Plaintiff's Motion to Supplement Authority.
A full-text copy of the Court's March 31, 2023 Memorandum Opinion &
Order available at https://tinyurl.com/yc7ejd84 from Leagle.com.
TUPPERWARE BRANDS: Bids for Lead Plaintiff Appointment Due May 19
-----------------------------------------------------------------
Globe Newswire of Benzinga reports that investors have until May
19, 2023 to apply to the Court to be appointed as lead plaintiff in
a class action lawsuit has been filed in the U.S. District Court
for the Middle District of Florida on behalf of those who acquired
Tupperware Brands Corporation ("Tupperware" or the "Company")
securities during the period from March 10, 2021 through March 16,
2023 (the "Class Period").
Tupperware provides houseware products, such as bottles, plate
sets, storage options, and other related products.
On March 1, 2023, Tupperware announced that it had identified
misstatements in prior annual and unaudited interim periods. In
particular, these misstatements related to Tupperware's historical
accounting for income taxes. It expected to report at least one
material weakness, stating the following in pertinent part: “the
Company concluded that it did not design and maintain effective
internal controls related to the accounting for the completeness,
occurrence, accuracy, and presentation of the income tax provision
and related income tax assets and liabilities.” On this news, the
price of Tupperware shares declined by $0.61 per share, or 14.88%,
from $4.10 per share to close at $3.49 on March 1, 2023, on
unusually heavy trading volume.
On March 16, 2023, after the market closed, the Company filed with
the SEC a late filing notice on Form NT 10-K (the "Late Filing
Notice"), reporting that it was unable to file its Annual Report on
Form 10-K for the year ended December 31, 2022 "by the prescribed
due date, without unreasonable effort or expense because it
requires additional time to complete the Form 10-K, including the
restatement of certain of its previously issued financial
statements as described below." On this news, the price of
Tupperware shares declined by $0.19 per share, or approximately
7.72%, from $2.46 per share to close at $2.27 on March 17, 2023.
The lawsuit alleges that, throughout the Class Period, Defendants
made false and/or misleading statements, as well as failed to
disclose that: (1) Tupperware had serious issues with internal
controls; (2) Tupperware's financial statements, from its 2020
Annual Report to the present, included misstatements, particularly
as it related to the Company's accounting for income taxes; and (3)
as a result, Tupperware would need to restate its previously filed
financial statements for certain periods.
If you purchased or otherwise acquired Tupperware securities, have
information, or would like to learn more about this investigation,
please contact Thomas W. Elrod of Kirby McInerney LLP by email at
investigations@kmllp.com, or by filling out this contact form, to
discuss your rights or interests with respect to these matters
without any cost to you.
Kirby McInerney LLP is a New York-based plaintiffs' law firm
concentrating in securities, antitrust, whistleblower, and consumer
litigation. The firm's efforts on behalf of shareholders in
securities litigation have resulted in recoveries totaling billions
of dollars. Additional information about the firm can be found at
Kirby McInerney LLP's website: http://www.kmllp.com.
This press release may be considered Attorney Advertising in some
jurisdictions under the applicable law and ethical rules.
Contacts
Kirby McInerney LLP
Thomas W. Elrod, Esq.
212-699-1180
https://www.kmllp.com
investigations@kmllp.com [GN]
UNILEVER UNITED: Murphy Sues Over Deceptive Home Cleaning Products
------------------------------------------------------------------
Margaret Murphy, individually, and on behalf of those similarly
situated v. UNILEVER UNITED STATES, INC., Case No. 1:23-cv-02922-UA
(N.D. Cal., Apr. 6, 2023) is a class action complaint against the
Defendant for the manufacture, distribution, marketing, and sale of
LAUNDRESS brand products that based on Defendant's own admission
suffer from identical deceptive conduct concerning the inclusion of
deadly bacteria.
The Plaintiff contends that despite Defendant's widespread
marketing campaign that the Products are non-toxic and present
better-for-you alternatives to other cleaners, the Products contain
highly toxic, undisclosed ingredients. The Products contain a
bacterium, Pseudomonas, that has a mortality rate of 39%3 and has
caused multiple fatal outbreaks in infant wards at hospitals
throughout the country, says the Plaintiff.
On November 17, 2022, the Defendant first revealed that THE
LAUNDRESS brand's entire product line contains harmful, toxic
bacteria. In fact, the toxin has been present in all of the
Products for years. Unfortunately, the toxin permeated --
unknowingly to consumers -- throughout all of the Products which
led (and currently leads) to unneeded physical injury and economic
harm. Because the Defendant continues to reap its spoils and gives
the false impression that the Products are safe, the Defendant
exposes this risk to millions of Americans every day while also
knowingly selling consumers defective Products that expose every
Class Members' household to great harm, the suit asserts.
The Plaintiff brings claims against Defendant individually and on
behalf of a class of all other similarly situated purchasers of the
Products for (i) violations of the consumer protection statutes for
states included in a Multi-State Consumer Class; (ii) violations of
California's Unfair Competition Law; (iii) violation of
California's False Advertising Law; (iv) violation of California's
Consumer Legal Remedies Act; (v) breach of implied warranty; (vi)
violation of the Magnuson-Moss Warranty Act; and (vii) unjust
enrichment.
The Plaintiff made several purchases of the Defendant's Products
from e-commerce stores, including FabFitFun, that shipped products
to her residence in California. The Products
purchased by the Plaintiff included the Delicate Wash, the Crease
Relief spray, and the Signature Detergent.
The Defendant is part of the Unilever Group, an international
consumer goods company that is comprised of two parent companies,
Unilever N.V. in Rotterdam, Netherlands and Unilever PLC in London,
United Kingdom.[BN]
The Plaintiff is represented by:
J. Ryan Gustafson, Esq.
GOOD GUSTAFSON AUMAIS LLP
2330 Westwood Blvd., No. 103
Los Angeles, CA 90064
Telephone: (310) 274-4663
E-mail: jrg@ggallp.com
- and -
Amir Shenaq, Esq.
SHENAQ PC
3500 Lenox Road, Ste. 1500
Atlanta, GA 30326
Telephone: (888) 909-9993
E-mail: amir@shenaqpc.com
- and -
Steffan T. Keeton, Esq.
THE KEETON FIRM LLC
100 S Commons, Ste 102
Pittsburgh PA 15212
Telephone: (888) 412-5291
E-mail: stkeeton@keetonfirm.com
UNION OF EUROPEAN: Faces Class Suit Over Champion League Chaos
--------------------------------------------------------------
Inside World Football reports that Nearly 900 Liverpool fans caught
up in the chaotic scenes at last year's Champions League final are
to sue UEFA, according to their lawyers.
The final at Stade de France in Paris was overshadowed by dangerous
crushes as a result of access issues and many fans were tear-gassed
or pepper-sprayed by police.
An independent review concluded in February that UEFA bore "primary
responsibility" for what almost led to a "mass fatality
catastrophe" at the showpiece fixture last May.
Fans found themselves penned against stadium perimeter fences ahead
of the match and law firm Leigh Day has now issued a group personal
injury claim on behalf of 887 fans on the basis UEFA failed to
ensure a safe and secure environment for those attending.
UEFA president Aleksander Ceferin last month apologised for the
chaotic scenes at the Stade de France and expressed his relief
"nothing terrible happened."
Ceferin also appeared to allude to his organisation's culpability
at a press conference on April 5, 2023 following the UEFA Congress
in Lisbon, vowing to learn from the event.
"We must never forget the mistakes of the past and we must remain
humble at all times," he said. "Nothing can ever be taken for
granted.
"Unfortunately, unlike goalkeepers, leaders can never keep a 'clean
sheet'. No leader can boast an unblemished record, however much
they invest and however passionate, professional or experienced
they are.
"There are always a few stains, a few mistakes that tarnish our
reputation, errors they would love to erase.
"I am no different and UEFA is no different. The most important
thing is to understand the mistakes and change, not to repeat
them." [GN]
UNITED SERVICES: Bid to Dismiss Buddington Class Complaint Denied
-----------------------------------------------------------------
In the case, STEVEN BUDDINGTON, ET AL. v. UNITED SERVICES
AUTOMOBILE ASSOCIATION, ET AL., Civil Action No. 22-1566 (E.D.
La.), Judge Greg Gerard Guidry of the U.S. District Court for the
Eastern District of Louisiana the Motion to Dismiss the Amended
Complaint filed by Defendants United Services Automobile
Association and USAA General Indemnity Co.
On July 14, 2022, the Plaintiffs filed a First Amended Class Action
Complaint. Therein, they assert they had car insurance through USAA
that provided physical damage coverage for the cost to repair or
replace an insured vehicle up to the 'Actual Cash Value' ('ACV') of
the vehicle."
The Plaintiffs, whose vehicles were determined to be total losses
as a result of physical damage, claim that the ACV owed to them
includes all costs associated with acquiring a replacement vehicle.
To that end, they contend that they are owed certain fees and
taxes, including sales tax, title fees, title transfer fees, and
registration fees, associated with buying a replacement vehicle and
that USAA has refused to pay these fees in violation of their
obligations under the applicable insurance policies. They further
claim they are entitled to bad faith penalties under Louisiana
Revised Statutes Section 22:1892 and Section 22:1973 because USAA
arbitrarily and capriciously failed to pay full ACV replacement
costs to which they are entitled.
USAA has moved to dismiss the Plaintiffs' Amended Complaint,
arguing the Plaintiffs have failed to allege they suffered a
compensable "loss" as defined by the Policies. Instead, the
Plaintiffs wrongfully claim entitlement to the Regulatory Fees
under the Policies' limitation of liability clause, which caps
USAA's payment obligations to the "actual cash value" of the
covered vehicle. As such, USAA contends that the Plaintiffs
misconstrue the Policies' limitation of liability provision as
imposing an affirmative duty to pay ACV.
Moreover, USAA asserts that even if it was obligated to pay the ACV
of the vehicles to the Plaintiffs, the alleged "replacement costs"
at issue do not fall under the Policies' definition of ACV. As to
some of the taxes and fees claimed, it argues that the Plaintiffs
lack standing to recover them because the expenses were either paid
by USAA or not actually incurred by them. Therefore, the Plaintiffs
have suffered no injury for which they can recover. Finally, USAA
argues that because the Plaintiffs' primary breach of contract
claims are lacking, their bad faith claims must also fail.
In response, the Plaintiffs contend that ACV sets the measure of
USAA's payment obligations in cases of total losses. As such, when
USAA elects to "total" an insured vehicle, it is obligated to pay
the ACV of the car and that amount necessarily includes any
expenses related to the purchase of a comparable vehicle such as
the Regulatory Fees at issue. For support, they rely on the
language of Louisiana Revised Statute Section 22:1892(B)(5), which
requires settlements of total loss claims to be "based on the
actual cost to purchase a comparable motor vehicle." Moreover, they
argue that USAA's voluntary payment of some of the Regulatory Fees
when it paid out the Plaintiffs' claims evidence USAA's
acknowledgment that the Regulatory Fees are included in the ACV
calculation.
USAA replies that the Plaintiffs have conflated the limitation of
liability provision with the Policies' affirmative grant of
coverage, which only insures a "loss." To that end, it contends
that the Regulatory Fees are not a "loss" and, therefore, cannot be
included in the limit of liability calculation. USAA further argues
Louisiana Revised Statute Section 22:1892(B)(5) supports its
position, in so far as the statute provides three methods for
calculating ACV, none of which take into account Regulatory Fees.
The central issue before the Court is whether the Regulatory Fees
at issue fall under the definition of ACV in the Policies. The
Policies state that, "actual cash value means the amount it would
cost, at the time of loss, to buy a comparable vehicle." On the one
hand, USAA argues that the parameters of ACV is limited to the
value of the covered vehicle at the time of the loss. On the other
hand, Plaintiffs assert that the "cost to buy a comparable vehicle"
means the expenses related to the purchase of a replacement car.
Considering the analogous case law and the facts of the present
case, Judge Guidry finds that the Plaintiffs' claims are
sufficiently pled to survive USAA's Rule 12(b)(6) attack. He says
the breach of contract claims are plausible under the reasonable
interpretation of the Policies posited by the Plaintiffs. USAA's
own actions, in electing to limit their liability to ACV while
voluntarily paying some, but not all, taxes and fees to the
Plaintiffs further muddies the waters of the Policies' coverages.
As such, whether the Regulatory Fees at issue are actually owed and
whether USAA breached its obligations under the Policies remains to
be determined at a later date.
At this early stage in these proceedings, Judge Guidry is satisfied
that the Plaintiffs have asserted viable breach of contract claims.
Further, USAA's contention that the Plaintiffs lack standing to
recover the sales taxes, title fees, and handling charges because
they have already been paid to them does not warrant dismissal of
those claims at this Rule 12 stage in the litigation. Discovery on
these issues is needed because the Plaintiffs have contested USAA's
sales tax calculations and the nature of the fees that were paid to
the Plaintiffs is not readily apparent from the Total Loss
Settlement documents before the Court.
Similarly, Judge Guidry holds that whether the Plaintiffs can
recover certain fees that are only assessed against specific types
of vehicles, is an issue that does not need to be determined now.
The discovery phase of the litigation will certainly ferret out
those detailed factual issues and are better reserved for when
evidence, either supporting or refuting those conclusions, is made
known.
Finally, Judge Guidry finds that the Plaintiffs' bad faith claims
were sufficiently pled. Like the plaintiff in Wright v. GEICO, the
Plaintiffs have alleged specific acts of USAA to implicate their
entitlement to damages under Louisiana Revised Statutes Sections
22:1892 and 22:1973.
Accordingly, the Motion to Dismiss is denied.
A full-text copy of the Court's March 31, 2023 Order is available
at https://tinyurl.com/ms97459j from Leagle.com.
UNITED WEALTH: Faces Class Action Over Wrongful Termination
-----------------------------------------------------------
Kelsey McCroskey of ClassAction.org reports that a class action
lawsuit filed against United Wealth Education (UWE) claims the
companies behind the credit repair and financial wellness service
wrongfully fired certain workers and still owe them sales
commissions in a case - captioned Cofer et al. v. Financial
Education Services, Inc. et al.
A proposed class action lawsuit filed against United Wealth
Education (UWE) claims the companies behind the credit repair and
financial wellness service wrongfully fired certain workers and
still owe them sales commissions.
The 30-page amended complaint says that after a 2022 lawsuit filed
by the Federal Trade Commission (FTC) threatened to permanently end
UWE's operations, sales agents were given the company's "blessing"
to seek work elsewhere. However, the suit claims that after being
permitted to continue operations, UWE allegedly terminated the
workers who had developed business arrangements with competitors in
the interim before returning to work at UWE.
According to the case, Financial Education Services, Inc. and
United Wealth Services, Inc. -- which together do business as UWE
-- market their credit repair service by hiring their own customers
as sales agents, who can then recruit others to work for the
organization as part of a multi-level marketing program. Agents are
paid based on their own sales as well as the sales of agents they
recruited, the complaint explains.
In May 2022, when the district court handling the FTC's lawsuit
issued an order temporarily shutting down all business operations
-- an act that the companies purportedly believed spelled the end
of UWE -- the defendants allegedly "encouraged the agents to seek
work elsewhere, including with competing companies," the filing
relays. As the lawsuit tells it, many former workers joined the
ranks of UWE's direct competitors until a following court order in
July of that year permitted the company to resume operations, at
which time countless agents returned to UWE.
The numerous plaintiffs in this case are former sales agents who
left UWE and later rejoined the company when it recommenced
business in August 2022, the suit says. In the intervening period,
each of the plaintiffs developed a business arrangement with Debt
Cleanse, a company that provides legal and credit services, the
case explains.
Two plaintiffs' careers ended at UWE in September of that year when
they noticed their access to the computer systems and business
platform had been terminated, the complaint states. The plaintiffs
were allegedly told their arrangement with Debt Cleanse "violated a
company policy," and though many of the recruits they had brought
on board still worked as sales agents at UWE, the two plaintiffs
have not received the associated commissions entitled to them, the
filing charges.
Per the lawsuit, five other plaintiffs were similarly terminated in
October of that year based on purported policy violations in regard
to "engaging in other network marketing programs."
Another plaintiff, who had reached a high-ranking position as a
sales agent, also discovered he had been locked out of UWE's
computer systems in September and was reportedly told by the
company's co-founder Parimal Naik that he was being fired "because
he had joined Debt Cleanse," the suit claims.
"When [the plaintiff] told Naik that many of [UWE's] agents were
working with other companies, Naik responded that working with
other companies was allowed, just not Debt Cleanse," the case
reads. "Naik also stated the reason for the termination 'is
personal now.'"
The filing argues that these terminations were "arbitrary and
capricious" and that UWE "selectively enforced" its policies to
avoid paying fees and commissions entitled to the plaintiffs.
As of the date this complaint was submitted, the FTC's lawsuit
against UWE remains pending, the case says.
The lawsuit looks to represent any former UWE sales agents who were
terminated by the defendants because of an association with Debt
Cleanse and who were owed monies upon termination and thereafter.
The complaint embedded below is an amended version of a case
initially filed on November 14, 2022 in the U.S. District Court for
the Eastern District of Michigan. [GN]
VIMEO INC: Agrees to Settle BIPA Class Suit for $2.25-Mil.
----------------------------------------------------------
Top Class Actions reports that Vimeo agreed to pay $2.25 million to
resolve a class action lawsuit claiming it unlawfully collected
biometrics from photos and videos uploaded to the Magisto app
without consent.
The settlement benefits Illinois residents who appear in a photo or
video on the Magisto app and whose face was detected between Sept.
20, 2014, and Jan. 20, 2023.
According to the privacy class action lawsuit, Vimeo wrongfully
collected facial geometry scans from the Magisto app for
identification purposes. This practice allegedly violated Illinois'
Biometric Information Privacy Act (BIPA).
Vimeo is a video-marketing company that owns Magisto, a
video-editing application.
Vimeo hasn't admitted any wrongdoing but agreed to a $2.25 million
class action settlement to resolve these allegations.
Under the terms of the Vimeo and Magisto class action lawsuit
settlement, class members can receive an equal share of the net
settlement fund.
Exact payment amounts will vary depending on the number of claims
filed, but class counsel anticipates each class member will receive
around $77.53.
Vimeo also agreed to delete all the facial geometry scans it
collected from the Magisto app. In addition, the company agreed to
comply with BIPA requirements going forward.
The deadline for exclusion and objection is May 5, 2023.
The final approval hearing for the settlement is scheduled for June
29, 2023.
In order to receive settlement benefits, class members must submit
a valid claim form by June 5, 2023.
Who's Eligible
Illinois residents who appear in a photo or video on the Magisto
app whose face was detected between Sept. 20, 2014, and Jan. 20,
2023.
Potential Award
$77.53 (estimated)
Proof of Purchase
N/A
Claim Form Deadline
06/05/2023
Case Name
Acaley, et al. v. Vimeo Inc., Case No. 2019CH10873, in the Circuit
Court of Cook County, Illinois.
Final Hearing
06/29/2023
Settlement Website
MagistoBIPASettlement.com
Claims Administrator
Acaley v. Vimeo.com, Inc.
c/o Magisto BIPA Settlement Administrator
P.O. Box 3116
Baton Rouge, LA 70821
info@MagistoBIPASettlement.com
844-575-1490
Class Counsel
AHDOOT & WOLFSON PC
Defense Counsel
BAKER & HOSTETLER LLP [GN]
VOLTECH ELECTRIC: Fails to Pay OT Wages Under FLSA, Da Silva Says
-----------------------------------------------------------------
RODNEI DE ASSIS DA SILVA, GABRIEL MENDES, VALDINELIO CAMILO
SANTAMA, and EDWARD FIALHO, on behalf of themselves and all others
similarly situated v. VOLTECH ELECTRIC, INC, and MARCELO ARAUJO,
Case No. 1:23-cv-10743-DLC (D. Mass, Apr. 6, 2023) seeks to recover
overtime wages as required under the Fair Labor Standards Act and
the Massachusetts overtime statute, Mass. Gen. Laws.
The Plaintiffs and similarly situated employees have worked for the
Defendants performing electric work at commercial and residential
locations in Massachusetts and in other parts of the United States.
These employees, many of whom are immigrants to the United States
and who speak limited English, regularly worked more than 40 hours
per week, occasionally reaching upwards of 90 hours per week, but
the Defendants failed to pay them a full overtime premium of
one-and-one-half times their regular hourly rate, the suit claims.
Moreover, the Defendants failed to pay the Plaintiffs prevailing
wages for work performed on public works projects as required under
Mass. Gen. Laws. The Defendants also required the Plaintiffs to pay
for their own tools by regularly deducting $50-100 per pay check.
These deductions amounted to between $600-$800 per Plaintiff,
asserts the suit.
The Plaintiffs seeks compensation on their own behalves and on
behalf of all those similarly situated, for lost wages, treble
damages, liquidated damages, attorneys’ fees and costs, pre- and
post-judgment interest, and any other relief that the Court deems
proper.
Plaintiff Rodnei de Assis da Silva was employed by the Defendants
from August 2018 until March 2023.
Plaintiff Gabriel Mendes was employed by the Defendants from June
2022 until March 2023.
Plaintiff Valdinelio Camilo Santama was employed by the Defendants
from October 2018 until December 2022.
Plaintiff Edward Fialho was employed by the Defendants from August
2021 until July 2022.
Voltech provides electrical contracting services for commercial,
industrial, and residential properties.[BN]
The Plaintiffs are represented by:
Harold Lichten, Esq.
Matthew Thomson, Esq.
LICHTEN & LISS-RIORDAN, P.C. 729
Boylston St., Ste. 2000
Boston, MA 02116
Telephone: (617) 994-5800
Facsimile: (617) 994-5801
E-mail: hlichten@llrlaw.com
mthomson@llrlaw.com
WESTLAKE ROYAL: Gonzales Seeks Proper Overtime Compensation
-----------------------------------------------------------
JUAN CARLOS GUEVARA GONZALES, on behalf of himself and others
similarly situated, Plaintiff v. WESTLAKE ROYAL STONE LLC D/B/A
ELDORADO STONE LLC, Defendant, Case No. 230303608 (Pa. Com. Pl.,
Philadelphia Cty., March 31, 2023) alleges that the Defendant has
violated the Pennsylvania Minimum Wage Act by failing to pay him
and other warehouse workers who performed work at Westlake Royal
Stone LLC's Pennsylvania facilities overtime wages for all time
that they were required to be on Defendant's premises before and
after paid time.
Plaintiff Juan Carlos Guevara Gonzales was employed as a warehouse
worker at Westlake Royal Stone's facility from approximately
January or February 2020 until approximately June 2020. Allegedly,
Gonzales and other warehouse workers are paid an hourly wage, and
are not exempt from the wage and hour requirements set forth in the
PMWA.
Westlake Royal Stone LLC., formerly known as Boral Stone Products,
LLC, is incorporated in Delaware and is a subsidiary of the
Westlake Corporation. It operates a manufacturing facility in
Greencastle, Pennsylvania. The company manufactures architectural
stone veneer products. It is headquartered in Oceanside, California
and operates a manufacturing and distribution facility in
Greencastle, Pennsylvania. [BN]
The Plaintiff is represented by:
Sarah R. Schalman-Bergen, Esq.
Krysten Connon, Esq.
LICHTEN & LISS-RIORDAN, P.C.
729 Boylston Street, Suite 2000
Boston, MA 02116
Telephone: (267) 256-9973
E-mail: ssb@llrlaw.com
kconnon@llrlaw.com
- and -
Peter Winebrake, Esq.
Deirdre A. Aaron, Esq.
WINEBRAKE & SANTILLO, LLC
715 Twining Road, Suite 211
Dresher, PA 19025
Telephone: (215) 884-2491
E-mail: pwinebrake@winebrakelaw.com
daaron@winebrakelaw.com
[*] Sen. Gillibrand Speaker at May 8 Class Action Conference
------------------------------------------------------------
Catch Senator Kirsten Gillibrand at the 7th Annual Class Action
Money & Ethics Conference on May 8, 2023.
Senator Gillibrand will serve as Keynote Luncheon Speaker at CAME
2023.
Senator Gillibrand, who was first elected to Congress in 2006,
among others, helped lead the fight to pass the PACT Act, which
ensured veterans exposed to toxins during their service would get
the care and benefits they earned. Senator Gillibrand is chair of
the Senate Armed Services Subcommittee on Personnel, and also
serves on the Senate Select Committee on Intelligence, Senate
Agriculture Committee and Senate Aging Committee.
Register now for the 7th Annual Class Action Money & Ethics
Conference! The in-person conference will be held at The Harmonie
Club, New York City, on Monday, May 8, 2023.
This year's event boasts of an All-Star lineup of speakers:
* Michael P. Canty, Partner, Labaton Sucharow LLP
* Neil Kornswiet, CEO, Optium Capital LLC
* Gerald L. Maatman, Jr., Partner, Duane Morris LLP
* Edward E. Neiger, Esq., Co-Managing Partner, Ask LLP
* Graham Newman, Partner, Chappell, Chappell & Newman
* Bola Oyesanya, Managing Director and Private Banker, Citi
Law Firm Group
* Paige Richardson, Director of Operations, Milestone
* Jennifer A. Riley, Partner, Duane Morris LLP
* Daniel Stefany, Associate, Hunton Andrews Kurth LLP
* Thomas R. Waskom, Partner, Hunton Andrews Kurth LLP
Ms. Oyesanya is this year's conference chair.
The value-packed event features special presentations from keynote
speakers, live panel discussions with industry experts and
networking with other professionals.
Contact:
Bernard Toliver, CMP
(240) 629-3300 ext. 149
E-mail: bernard@beardgroup.com
or visit https://www.classactionconference.com/ for more
information.
The conference is presented by Beard Group, Inc.
Asbestos Litigation
ASBESTOS UPDATE: Ampco-Pittsburgh Faces Product Liability Claims
----------------------------------------------------------------
Air & Liquid, and in some cases, Ampco-Pittsburgh Corporation, are
defendants in numerous claims alleging personal injury from
exposure to asbestos-containing components historically used in
certain products of these subsidiaries, according to the Company's
Form 10-K filing with the U.S. Securities and Exchange Commission.
The Company states, "Through the current year end, our insurance
has covered a majority of our settlement and defense costs. We
believe that the estimated costs, net of anticipated insurance
recoveries, of our pending and future asbestos legal proceedings
should not have a material adverse effect on our financial
condition or liquidity. However, there can be no assurance that our
subsidiaries or we will not be subject to significant additional
claims in the future or that our subsidiaries' ultimate liability
with respect to asbestos claims will not present significantly
greater and longer lasting financial exposure than provided in our
consolidated financial statements.
"The ultimate net liability with respect to such pending and any
unasserted claims is subject to various uncertainties, including
the following: the number and nature of claims in the future; the
costs of defending and settling these claims; insolvencies among
our insurance carriers and the risk of future insolvencies; the
possibility that adverse jury verdicts could require damage
payments in amounts greater than the amounts for which we have
historically settled claims; possible changes in the litigation
environment or federal and state law governing the compensation of
asbestos claimants; and the risk that the bankruptcies of other
asbestos defendants may increase our costs.
"Because of the uncertainties related to such claims, it is
possible that our ultimate liability could have a material adverse
effect on our financial condition, results of operations or
liquidity in the future."
A full-text copy of the Form 10-K is available at
https://bit.ly/3KuoE85
ASBESTOS UPDATE: J&J Agrees to Pay $8.9BB Talc Settlement
---------------------------------------------------------
Jef Feeley and Steven Church, writing for finance.yahoo.com,
reports that Johnson & Johnson agreed to pay $8.9 billion to
resolve all cancer lawsuits tied to its talc-based powders and will
make a fresh attempt to contain the liability within a bankruptcy
filing by one of its units.
The world's largest maker of health-care products hopes to settle
complaints from about 60,000 claimants and fund a trust set up in
US bankruptcy court in Trenton, New Jersey, to cover future claims,
the company said Tuesday in a securities filing. J&J has already
withdrawn its talc-based baby powder and others, including Shower
to Shower, from the market.
J&J's LTL Management unit filed a new Chapter 11 case to provide a
basis for the trust, which outlines terms for settling the
decade-long litigation. An earlier filing, which didn't include a
settlement, was rejected in January after an appeals court found
J&J erred in using bankruptcy to block juries from hearing lawsuits
and handing out damage awards. J&J wants a reorganization plan for
LTL that caps all the talc liability.
"Resolving this matter through the proposed reorganization plan is
both more equitable and more efficient, allows claimants to be
compensated in a timely manner," Erik Haas, J&J's world-wide head
of litigation, said in a release. Monies in the settlement will be
paid out over 25 years.
Shares of J&J were up 3% in pre-market trading in New York.
If enough victims agree to join the accord, J&J will be freed from
defending against cancer claims tied to baby powder and others
products tainted by asbestos. Juries ruled against the company in
nearly a dozen such suits over the years — including one appealed
all the way to the US Supreme Court — before J&J was forced to
pay $2.5 billion to a group of 20 women whose case went to trial in
2018.
ASBESTOS UPDATE: Revlon, Inc. Faces Product Liability Claims
------------------------------------------------------------
Revlon, Inc., prior to the petition date, has been asserted to tort
claims by certain individuals in connection with alleged personal
injury suffered through use of its cosmetics and personal care
products, according to the Company's Form 10-K filing with the U.S.
Securities and Exchange Commission.
These include certain claims relating to "Jean Nate" branded
products containing talcum powder, an ingredient allegedly
contaminated with asbestos and allegedly associated with
mesothelioma and other maladies. The Company maintains that these
claims are meritless.
A full-text copy of the Form 10-K is available at
https://bit.ly/3KxwMpA
*********
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 ***