/raid1/www/Hosts/bankrupt/CAR_Public/230424.mbx
C L A S S A C T I O N R E P O R T E R
Monday, April 24, 2023, Vol. 25, No. 82
Headlines
A-1 COLLECTION: Bid for Summary Judgment Denied Without Prejudice
APPLE GROVE: Fails to Pay Caregivers' OT Wages Under FLSA
APRIO LLP: Plaintiffs Must File Supplemental Brief by July 30
ASC PROTECTION: Fails to Pay Proper Wages, Avila Suit Alleges
BLUE CROSS: Allied World Wins Cross Bid for Judgment on Pleadings
BOOZ ALLEN: Tullgren Appeals Amended Suit Dismissal to 4th Cir.
BROOKDALE SENIOR: Stiner Class Status Bid Partly OK'd
BUILD-A-BEAR WORKSHOP: TCPA Settlement Awaits Final Approval
BZX DAO: S.D. California Narrows Claims in 1st Amended Sarcuni Suit
CABOT OIL: May File Renewed Bid to Dismiss Ezell Suit by April 28
CENTER FOR APPLIED: Fails to Pay OT Wages, Saenz Suit Alleges
CHAMPION PETFOODS: Court OK's Stipulated Bids to Seal Exhibits
CHARTER COMMUNICATIONS: Sansone Class Cert Bid Partly OK'd
COMPLIANCE DATA: Hernandez Bid for Entry of Scheduling Order Nixed
CONDUENT EDUCATION: Court OK's Distribution of Net Settlement Fund
CORTEVA INC: Suit Seeks to Certify Class of Plan Participants
COSTCO WHOLESALE: Wins Summary Judgment Bid vs Pit Row
COVIA HOLDINGS: Phelps Securities Suit Will Proceed Against Deckard
CREDIT BUREAU: Court Lifts Stay of Myers Suit
CREDIT SUISSE: Seeks Reconsideration of March 16, 2023 Order
CYTODYN INC: Continues to Defend Leronlimab-Related Class Suit
D2C LLC: Faces Martinez Suit Over Data Privacy Violations
ENTRATA INC: Faces Senk Suit Over Debt Collection Practices
FEDERAL GOVERNMENT: May 31 Extension of Class Cert Deadline Sought
FEDEX GROUND: Filing of Class Certification Bid Due Sept. 25
FIRSTENERGY CORP: Court Certifies Class in Securities Fraud Suit
FLORIDA: Class Certification Granted in Meza v. Marstiller/AHCA
FLYWHEEL ENERGY: Class Cert Response Due April 28 in Eubanks Suit
FLYWHEEL ENERGY: Class Cert Response Due April 28 in Oliger Suit
GERALDI'S OF BERRYVILLE: Faces Suit Over Alleged Tip Skimming
GODIVA CHOCOLATIER: Chocolate Products Contain Lead and Cadmium
GOVERNMENT EMPLOYEES: Appeals Class Cert. Order in Lanzillotta Suit
GOVERNMENT EMPLOYEES: E.D. New York Denies Bid to Dismiss See Suit
HAVERTY FURNITURE: Fails to Pay Merchandisers' Wages Under FLSA
LIMANI 51 LLC: Fails to Pay Proper Wages, Ajala Suit Alleges
MARYLAND: Gibson Appeals Denial of Bid to Amend Judgment in Suit
MATRIX WARRANTY: Appeals Court Order in Mey TCPA Suit to 4th Cir.
MEDICAL PROPERTIES: Faces Sward Suit Over 8.7% Stock Price Drop
MENZIES AVIATION: Filing of Class Cert Bid Due May 8
MISSISSIPPI BEHAVIORAL: Must Respond to Amended Complaint by May 26
MYLAN NV: Summary Judgment Bid Granted in Securities Litigation
NIKE INC: Cahill Appeals Class Cert. Bid Denial to 9th Cir.
PACIFIC GRAIN: Salcedo Must File First Amended Complaint
PRESTAMOS CDFI: Court Narrows Marshall's Breach of Contract Claims
QUALITY CARRIERS: Court Issues Final Judgment in Salter Class Suit
REALPAGE INC: Bauman Suit Alleges Housing Lease Monopoly
REDWIRE CORP: Bid to Dismiss Exchange Act Class Suit Nixed
RESORT SALES: Has Made Unsolicited Calls, Beardsley Alleges
SALTY DOG: Fails to Pay Dishwashers' Minimum, OT Wages Under FLSA
SEPHORA USA: Court Trims Down Martin's CIPA Violation Claims
TILRAY INC: Continues to Defend Kasilingam Class Suit in S.D.N.Y.
TILRAY INC: Continues to Defend Securities Class Suit in S.D.N.Y.
TILRAY INC: Delaware Chancery Court Approves SLC Settlement
TOYOTA MOTOR: S.C. Court Awards $24.44K in Costs in Weinreich Suit
TWITTER INC: Adler Sues Over Mass Layoff Without Notice
UNION INSTITUTE: McGonegle Sues Over Unpaid Compensations
UNION PACIFIC: Court Directs Filing Discovery Plan in Sandoval Suit
UNITED STAFFING: Magtoles' Summary Judgment Bid Granted in Part
UNITED STATES: U.S. Supreme Court Refuses to Hear Donziger's Appeal
WEGMANS FOOD: Fails to Pay Proper Wages ,Benjamin Alleges
[*] Sen. Gillibrand Speaker at May 8 Class Action Conference
*********
A-1 COLLECTION: Bid for Summary Judgment Denied Without Prejudice
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In the class action lawsuit captioned as JOHN FULLMER, SEAN
MCINTYRE, SABRINA PROVO, and all others similarly situated, v. A-1
COLLECTION AGENCY, LLC, and MOAB VALLEY HEALTHCARE, INC.,Case No.
4:20-cv-00143-DN-PK (D. Utah), Hon. Judge David Nuffer entered an
order:
1. granting the Plaintiffs' Rule 56(d) motion, and
2. denying without prejudice the Defendants' motions for summary
judgment.
The Defendant may file renewed summary judgment motions, if
appropriate, after an order is entered on Plaintiffs' motion for
class certification and sufficient time has passed from the entry
of a scheduling order providing for merits-related discovery.
The Plaintiffs, on behalf of themselves and all others similarly
situated, initiated this action to seek recourse for the alleged
improper public disclosure of confidential personal and protected
health information in state court debt collection proceedings.
A-1 Collection is a debt collection agency.
A copy of the Court's order dated March 30, 2023 is available from
PacerMonitor.com at https://bit.ly/4112rpq at no extra charge.[CC]
APPLE GROVE: Fails to Pay Caregivers' OT Wages Under FLSA
---------------------------------------------------------
ARNEISHA WRIGHT, Individually, and on behalf of herself and others
similarly situated v. APPLE GROVE, LLC, Case No. 2:23-cv-02212
(W.D. Tenn., Apr. 12, 2023) seeks to recover unpaid overtime wages,
liquidated damages, reasonable attorneys' fees, costs, declaratory
relief, and other relief under the Fair Labor Standards Act.
Accordingly, the Defendant has had a common practice of paying the
Plaintiff and class members for no more than 20 hours of overtime
compensation per two-week period irrespective of how many overtime
hours they worked during each such two-week period. The Defendant
allegedly admitted to the Plaintiff that it had such a common
practice.
The Plaintiff and those similarly situated did perform more than 20
hours of overtime within two-week pay periods without being
compensated for such overtime hours at the applicable FLSA overtime
compensation rates of pay - during all times material, the suit
alleges.
As a result of the Defendant's bad faith and willful failure to pay
the Plaintiff and those similarly situated in compliance with the
requirements of the FLSA, they have suffered lost wages in terms of
lost overtime compensation, as well as having suffered other
damages.
The Plaintiff was an employee of the Defendant as a full-time,
hourly-paid caregiver.
Apple Grove provides senior care services in the Memphis, Tennessee
area.[BN]
The Plaintiff is represented by:
Gordon E. Jackson, Esq.
J. Russ Bryant, Esq.
James L. Holt, Jr. , Esq.
JACKSON SHIELDS YEISER HOLT
OWEN & BRYANT
262 German Oak Drive
Memphis, TN 38018
Telephone: (901) 754-8001
Facsimile: (901) 754-8524
E-mail: gjackson@jsyc.com
rbryant@jsyc.com
jholt@jsyc.com
APRIO LLP: Plaintiffs Must File Supplemental Brief by July 30
-------------------------------------------------------------
In the class action lawsuit captioned as ANDREW LECHTER, et al., v.
APRIO, LLP, et al., Case No. 1:20-cv-01325-AT (N.D. Ga.),
Hon. Judge Amy Totenberg entered an order as follows:
-- The Court authorizes the categories of document requests and
deposition topics that the parties have included in their
Joint
Report.
-- The deadline for completion of the document production
contemplated in the parties' Joint Report shall be May 15,
2023,
and the deadline for completion of Mr. Greenberger's limited
deposition shall be July 15, 2023.
-- The topics for Mr. Greenberger's deposition shall be limited
to
the topics that the parties have included in their Joint
Report,
and the length of the deposition shall not exceed 3 hours.
-- Following Mr. Greenberger's deposition, Plaintiffs shall have
until July 30, 2023, to file a supplemental brief in support
of
their Motion for Class Certification not to exceed 10 pages.
Aprio is an accounting and business advisory firm headquartered in
Atlanta, Georgia.
A copy of the Court's order dated April 10, 2023 is available from
PacerMonitor.com at https://bit.ly/3KF60e4 at no extra charge.[CC]
ASC PROTECTION: Fails to Pay Proper Wages, Avila Suit Alleges
-------------------------------------------------------------
SERGIO AVILA, individually and on behalf of all others similarly
situated, Plaintiff v. ASC PROTECTION INC.; ADVANCED SECURITY
CONCEPTS CORPORATION; ADVANCED SECURITY CONCEPTS; and DOES 1
through 50, inclusive, Defendants, Case No. 37-2023-00015348-CU
OE-CTL (Cal. Super., San Diego Cty., April 13, 2023) is an action
against the Defendants for failure to pay minimum wages, overtime
compensation, authorize and permit meal and rest periods, provide
accurate wage statements, and reimburse necessary business
expenses.
Plaintiff Avila was employed by the Defendants as security officer
supervisor.
ASC PROTECTION INC. provides security services. [BN]
The Plaintiff is represented by:
Nicholas J. Ferraro, Esq.
Julia Jiang Yu, Esq.
FERRARO VEGA EMPLOYMENT LAWYERS, INC.
3160 Camino del Rio South, Suite 308
San Diego, CA 92108
Telephone: (619) 693-7727
Facsimile: (619) 350-6855
Email: nick@ferrarovega.com
julia@ferrarovega.com
BLUE CROSS: Allied World Wins Cross Bid for Judgment on Pleadings
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In the lawsuits entitled ATLANTIC SPECIALTY INSURANCE COMPANY,
Plaintiff/Counter-Defendant v. BLUE CROSS AND BLUE SHIELD OF
KANSAS, INC., Defendant/Counter-Plaintiff v. ALLIED WORLD SURPLUS
LINES INSURANCE COMPANY f/k/a DARWIN SELECT INSURANCE COMPANY and
BLUE CROSS BLUE SHIELD ASSOCIATION, Defendants. ALLIED WORLD
SPECIALTY INSURANCE COMPANY, f/k/a DARWIN SELECT INSURANCE COMPANY,
Plaintiff/Counter-Defendant v. BLUE CROSS AND BLUE SHIELD OF
KANSAS, INC., Defendant/Counter-Plaintiff, Case Nos.
18-2371-DDC-ADM, 18-2515-DDC-ADM (D. Kan.), Judge Daniel D.
Crabtree of the U.S. District Court for the District of Kansas:
(1) denies Defendant/Counter-Plaintiff Blue Cross Blue Shield
of Kansas, Inc.'s Motion for Judgment on the Pleadings;
and
(2) grants Plaintiff/Counter-Defendant Allied World Specialty
Insurance Company's Cross Motion for Judgment on the
Pleadings.
The case arises from an insurance coverage dispute. Plaintiff
Allied World Specialty Insurance Co. filed this declaratory
judgment action against Defendant Blue Cross and Blue Shield of
Kansas, Inc. ("BCBSKS"), seeking a declaratory judgment that the
Directors and Officers Liability Policy ("D&O Policy") that it
issued to BCBSKS doesn't provide insurance coverage for any claims,
losses, or other damages asserted by claimants in an underlying
Multi-District Litigation ("MDL Action") in the U.S. District Court
for the Northern District of Alabama.
In response, BCBSKS filed a Counterclaim against Allied World
seeking its own declaratory judgment that the D&O Policy obligates
Allied World to pay BCBSKS's defense costs incurred in the MDL
Action. BCBSKS also asserts counterclaims against Allied World for
breach of contract and breach of the duty of good faith and fair
dealing.
The matter comes before the Court on BCBSKS's Motion for Judgment
on the Pleadings. Allied World has filed a Response in Opposition
to the Motion for Judgment on the Pleadings and a Cross Motion for
Judgment on the Pleadings. BCBSKS has filed a Reply in Support of
its Motion for Judgment on the Pleadings and an Opposition to
Allied World's Cross Motion for Judgment on the Pleadings. And,
Allied has filed a Reply in Support of its Cross Motion for
Judgment on the Pleadings. Also, BCBSKS has filed a Notice of
Supplemental Authority, to which Allied World has responded.
The MDL Action
In 2012, various healthcare providers and health insurance
subscribers filed several class action lawsuits alleging antitrust
violations by certain Blue Cross Blue Shield Plans ("Blue Plans")
and the Blue Cross Blue Shield Association ("BCBSA"). Generally,
the lawsuits allege that the Blue Plans and BCBSA "conspired to
leverage their economic power and market dominance to
under-compensate healthcare providers for their services and to
increase healthcare costs to subscribers by coordinating their
operations and limiting their activities through restrictions in
their trademark licenses." Some of these class action lawsuits
named BCBSKS as a defendant.
On Dec. 12, 2012, the Judicial Panel on Multidistrict Litigation
consolidated and transferred several of the class action lawsuits
to the United States District Court for the Northern District of
Alabama ("MDL Action"). The JPML's Transfer Order explained that
the "antitrust litigation concerns the licensing agreements between
and among the Blue Cross Blue Shield Association (BCBSA) and its 38
licensees (Blue Plans)" that--according to plaintiffs—allowed the
Blue Plans to divide and allocate among themselves health insurance
markets throughout the nation to eliminate competition.
After transfer to the Northern District of Alabama, the plaintiffs
filed two consolidated complaints in the MDL Action. One complaint
was for the "Provider Track," i.e., asserting claims on behalf of
health care providers; the other complaint was for the "Subscriber
Track," i.e., asserting claims on behalf of individuals or
businesses, who hold health insurance plans issued or administered
by one of the Blue Plans.
The Love Litigation
Years before the JPML transferred the MDL Action to the Northern
District of Alabama, a group of plaintiffs filed a class action
lawsuit against BCBSKS and other Blue Cross Blue Shield entities in
the U.S. District Court for the Southern District of Florida ("the
Love Litigation"). Generally, the Love Litigation alleged that
BCBSKS, BCBSA, and the other Blue Plans conspired and coordinated
"automated processing schemes" that they "used to deny, diminish
and delay" reimbursement payments to healthcare providers.
Allied World Denies Insurance Coverage
and Files this Lawsuit
After the plaintiffs in the MDL Action filed the two consolidated
complaints, BCBSKS tendered a claim to Allied World under both the
D&O and E&O Policies seeking coverage for the Provider Complaint
and Subscriber Complaint. On March 4, 2014, Allied World agreed to
reimburse "Defense Expenses" incurred by BCBSKS in connection with
the MDL Action under the E&O Policy, subject to a full reservation
of rights.
In that same March 4, 2014 letter, Allied World denied coverage for
the MDL Action under the D&O Policy. Allied World recognized that
the MDL Action appeared to fall within both the "Antitrust
Activities" Insuring Agreement and the separate "Wrongful Act"
Insuring Agreement. But, Allied World determined there was no
coverage under the D&O Policy because the D&O Policy's Managed Care
Activities Exclusion precluded coverage.
The Current Litigation
In 2018, Allied World filed this lawsuit against BCBSKS. Allied
World's Complaint asserts one Count against BCBSKS seeking a
declaratory judgment that Allied World's D&O Policy provides no
coverage for the MDL Action. Allied World asserts three reasons why
the D&O Policy doesn't cover the MDL Action: (1) the MDL Action
alleges "acts done by BCBS-KS in the performance of Managed Care
Activities[,]" and thus falls within a D&O Policy exclusion; (2)
the MDL Action "is derived from essentially the same facts, or the
same or related Wrongful Acts, as alleged in the prior Love
litigation[;]" and (3) the MDL Action plaintiffs "seek relief . . .
that does not constitute Loss and/or is uninsurable as a matter of
law."
BCBSKS answered Allied World's Complaint and also filed a
Counterclaim against Allied World. Count I of BCBSKS's Counterclaim
seeks a declaration that Allied World's D&O Policy obligates Allied
World to pay BCBSKS all Defense Costs incurred in the MDL Action.
Count II of BCBSKS's Counterclaim asserts a breach of contract
claim against Allied World for its alleged wrongful denial of
coverage and failure to pay BCBSKS's Defense Costs for the MDL
Action. And Count III of BCBSKS's Counterclaim asserts a breach of
the duty of good faith and fair dealing claim based on Allied
World's refusal to pay BCBSKS's Defense Costs for the MDL Action
under the D&O Policy.
The matter now comes before the Court on the parties' Cross-Motions
for Judgment on the Pleadings under Fed. R. Civ. P. 12(c). BCBSKS
has filed a Motion for Judgment on the Pleadings that seeks a
judgment: (a) against Count I of Allied World's Complaint for
declaratory judgment declaring that the D&O Policy provides no
coverage for the MDL Action; and (b) in BCBSKS's favor on Counts I
and II of BCBSKS's Counterclaim. Allied World opposes BCBSKS's
Motion for Judgment on the Pleadings and has filed its own Motion
for Judgment on the Pleadings. Allied World seeks a judgment (a)
against Counts I and II of BCBSKS's Counterclaims, and (b) in its
favor on "subsections (a)-(c) of Count I in Allied World's
Complaint."
The Court concludes that it doesn't matter whether the Subscriber
Track relates to the Love Litigation when the Subscriber Track and
Provider Track are part of the same claim for insurance coverage of
BCBSKS's defense costs. And because the Court already has concluded
that the allegations in the Provider Track arise out of or are
based on the allegations asserted in the Love Litigation, BCBSKS's
single claim for coverage of the MDL Action's Defense Costs falls
under both the Prior or Pending Litigation Exclusion and the
Related Claims Provision.
Conclusion
The Court concludes that Allied World has shouldered its burden to
show that no potential for coverage exists under the D&O Policy for
BCBSKS's claim for the MDL Action's Defense Costs. The Court
reaches this conclusion after viewing the facts in the light most
favorable to BCBSKS on Allied World's Motion for Judgment on the
Pleadings.
The Court bases its conclusion on two separate and independent
reasons: (1) the D&O Policy's Managed Care Activities Exclusion
applies to preclude any potential for coverage, and (2) the D&O
Policy's Prior or Pending Litigation Exclusion and Related Claims
Provision both apply to preclude any potential for coverage. Either
reason, by itself, would suffice. And thus, Allied World has shown
there is no potential for coverage under the D&O Policy for
BCBSKS's claim for Defense Costs in the MDL Action.
The Court, thus, denies BCBSKS's Motion for Judgment on the
Pleadings. And the Court grants Allied World's Motion for Judgment
on the Pleadings.
Specifically, the Court grants judgment on the pleadings in Allied
World's favor on subsections (a)-(c) of Allied World's Count I,
declaring that Allied World has no duty under the D&O Policy to
provide insurance coverage for BCBSKS's Defense Costs in the MDL
Action. Also, the Court grants judgment on the pleadings against
Counts I and II of BCBSKS's Counterclaim because (1) BCBSKS isn't
entitled to a declaratory judgment against Allied World under Count
I; and (2) BCBSKS hasn't alleged a plausible breach of contract
claim against Allied World in Count II.
A full-text copy of the Court's Memorandum and Order dated March
27, 2023, is available at https://tinyurl.com/4cr335nr from
Leagle.com.
BOOZ ALLEN: Tullgren Appeals Amended Suit Dismissal to 4th Cir.
---------------------------------------------------------------
MICHAEL TULLGREN is taking an appeal from a court order dismissing
his lawsuit entitled Michael Tullgren, individually and on behalf
of all others similarly situated, Plaintiff, v. Booz Allen
Hamilton, Inc., Defendant, Case No. 1:22-cv-00856-MSN-IDD, in the
U.S. District Court for the Eastern District of Virginia.
As previously reported in the Class Action Reporter, the Plaintiffs
brought this complaint against the Defendant for breach of
fiduciary duties under the Employee Retirement Income Security Act
(ERISA).
On Dec. 15, 2022, the Plaintiffs filed an amended complaint which
the Defendant moved to dismiss for failure to state a claim on Jan.
11, 2023.
On Mar. 1, 2023, the Court granted the Defendant's motion to
dismiss through an Order entered by Judge Michael S. Nachmanoff.
The Court ruled that the Plaintiff has failed to present any
factual allegations to support his claim for fiduciary breach under
ERISA. The Plaintiff's amended complaint is dismissed with
prejudice in its entirety.
The appellate case is captioned Michael Tullgren v. Booz Allen
Hamilton, Inc., Case No. 23-1366, in the United States Court of
Appeals for the Fourth Circuit, filed on April 5, 2023. [BN]
Plaintiff-Appellant MICHAEL TULLGREN, individually and on behalf of
all others similarly situated, is represented by:
Glenn Edward Chappell, Esq.
TYCKO & ZAVAREEI LLP
2000 Pennsylvania Avenue NW
Washington, DC 20006
Telephone: (202) 973-0900
Defendants-Appellees BOOZ ALLEN HAMILTON, INC., et al. are
represented by:
Jeremy Paul Blumenfeld, Esq.
MORGAN LEWIS & BOCKIUS, LLP
1701 Market Street
Philadelphia, PA 19103
Telephone: (215) 963-5258
- and -
Sean Kenneth McMahan, Esq.
MORGAN LEWIS & BOCKIUS, LLP
1717 Main Street
Dallas, TX 75201
Telephone: (214) 466-4102
- and -
Matthew J. Sharbaugh, Esq.
MORGAN LEWIS & BOCKIUS, LLP
1111 Pennsylvania Avenue, NW
Washington, DC 20004
Telephone: (202) 739-5623
BROOKDALE SENIOR: Stiner Class Status Bid Partly OK'd
-----------------------------------------------------
In the class action lawsuit captioned as STACIA STINER, et al., v.
BROOKDALE SENIOR LIVING, INC., et al., Case No. 4:17-cv-03962-HSG
(N.D. Cal.), Hon. Judge Haywood S. Gilliam, Jr. entered an order
granting in part and denying in part the Plaintiffs' motion for
class certification.
-- The Court denied Brookdale's motion to exclude the opinion of
Ms. Kailes.
-- The Court grants in part and denies in part Brookdale's
motion
to exclude the testimony of Mr. Cross.
-- The Court grants in part and denies in part Brookdale's
motion
to exclude the declaration and testimony of Mr. Mastin and
Mr.
Waters.
-- The Court denies Brookdale's motion to exclude the opinion of
Dr. Flores.
-- The Court denies Brookdale's motion to exclude the opinion of
Mr. Schroyer.
-- The Court denies Brookdale's motion to exclude the testimony
of
Dr. Kennedy.
-- The Court denies Plaintiffs' motion to exclude the testimony
of
Dr. Anderson.
-- The Court denies the Plaintiffs' motion to exclude the
testimony
of Dr. Jacobson and Dr. Saad.
-- The Court denies as moot the Plaintiffs' motion to strike the
supplemental declaration of Dr. Saad.
-- The Court denies in part and denies as moot in part as set
forth
Brookdale's motion to strike Wallace Reply Declaration, the
Steyer Reply Declaration, and the Bien-Kahn Reply
Declaration.
This is a putative class action lawsuit in which Plaintiffs allege
that the Defendants operate their facilities in California in a
manner that violates federal and state disability laws.
The Plaintiffs accordingly brought this lawsuit, in which they seek
to represent the following three classes, as amended in their
motion for class certification:
1. All persons with disabilities who use wheelchairs, scooters,
or
other mobility aids or who have vision disabilities and who
reside or have resided at a residential care facility for the
elderly located in California and owned, operated and/or
managed
by Brookdale during the three years prior to the filing of
the
Complaint herein through the conclusion of this action,
including their successors-in interest if deceased, excluding
any persons who are subject to arbitration.
2. All persons with disabilities who require assistance with
activities of daily living and who reside or have resided at
a
residential care facility for the elderly located in
California
and owned, operated and/or managed by Brookdale during the
three
years prior to the filing of the Complaint herein through the
conclusion of this action, including their successors-in-
interest if deceased, excluding any persons who are subject
to
arbitration.
3. All persons who resided or reside at one of the residential
care
facilities for the elderly located in California and owned,
operated and/or managed by Brookdale during the period from
May
16, 2015 through the conclusion of this action, and who
contracted with Brookdale or another assisted living facility
for services for which Brookdale was paid money, including
their
successors-in-interest if deceased, excluding any persons who
are subject to arbitration.
Brookdale Senior owns and operates retirement homes across the
United States.
A copy of the Court's order dated March 30, 2023 is available from
PacerMonitor.com at https://bit.ly/41iD9Tf at no extra charge.[CC]
BUILD-A-BEAR WORKSHOP: TCPA Settlement Awaits Final Approval
------------------------------------------------------------
Build-a-Bar Workshop Inc. disclosed in its Form 10-K Report for the
fiscal period ending January 28, 2023 filed with the Securities and
Exchange Commission on April 13, 2023, that the settlement in the
TCPA putative class suit awaits final court approval.
In August 2021, a putative class action lawsuit was filed against
Build-A-Bear Workshop, Inc., asserting claims under the Telephone
Consumer Protection Act (the "TCPA") alleging that the Company
continued to send marketing text messages to mobile phone numbers
registered on the National Do Not Call Registry after allegedly
opting-out of receiving them. Statutory damages under the TCPA are
assessed at $500 per violation (i.e. per text message), and up to
$1,500 per violation if the violation was knowing or willful.
The Company has reached a settlement with the Plaintiff and an
insurance carrier which, if the settlement receives final approval
by the Court, is not expected to result in a significant expense
for the Company.
Build-A-Bear Workshop, Inc. is Missouri-based experiential
specialty retailer where children and their families could create
their own stuffed animals.
BZX DAO: S.D. California Narrows Claims in 1st Amended Sarcuni Suit
-------------------------------------------------------------------
In the lawsuit captioned as CHRISTIAN SARCUNI, et al., on behalf of
themselves and other similarly situated, Plaintiffs v. bZx DAO, et
al., Defendants, Case No. 22-cv-618-LAB-DEB (S.D. Cal.), Judge
Larry Alan Burns of the U.S. District Court for the Southern
District of California:
(1) denies in part and grants in part the Leveragebox
Defendants' motion to dismiss;
(2) denies the Leveragebox Defendants' motion to strike; and
(3) denies the Hashed Defendants' motion to dismiss.
The claims against Tom Bean, bZeroX LLC, and Leveragebox LLC are
dismissed without prejudice.
In what appears to be a case of first impression, Judge Burns notes
19 named Plaintiffs brought this putative class action against Kyle
Kistner, Tom Bean, bZeroX LLC, Leveragebox LLC (collectively, the
"Leveragebox Defendants"), Hashed International LLC, and AGE Crypto
GP, LLC (the "Hashed Defendants") as members of a general
partnership for one count of negligence. The Plaintiffs allege that
each Defendant is a general partner of the bZx DAO, a purported
"Decentralized Autonomous Organization."
The First Amended Complaint ("FAC") also names the bZx DAO and its
successor, the Ooki DAO, as Defendants. The Plaintiffs allege they
were injured by the Defendants' negligence after a developer
working for the bZx DAO was successfully targeted by a phishing
attack, which led to the theft of $55 million in cryptocurrency.
The named Plaintiffs lost $1.7 million.
The Leveragebox Defendants move to dismiss the FAC for failure to
state a claim, lack of personal jurisdiction, and to strike the
FAC's class allegations (the "Leveragebox Motion"). The Hashed
Defendants join the Leveragebox Motion and separately move to
dismiss the FAC for failure to state a claim, insufficient service,
and lack of subject matter jurisdiction (the "Hashed Motion").
According to the FAC, the bZx DAO operated a blockchain-based
software called the bZx Protocol, which offered cryptocurrency
margin trading and lending products. A cryptocurrency is a digital
asset based on a network that is distributed across a large number
of computers. This decentralized computer network securely and
publicly records all transactions for a given cryptocurrency on a
distributed ledger called a blockchain. Some blockchains can record
transactions for multiple cryptocurrencies. The blockchains at
issue in this case are Ethereum, Polygon, and the Binance Smart
Chain ("BSC").
On Nov. 5, 2021, an unknown hacker sent a phishing email to a bZx
Protocol developer's personal computer. The email appeared
legitimate and included a Word document containing hidden malicious
software. Once the Word document was opened, the hacker was able to
access the developer's personal digital wallet, which in turn
provided access to the developer's private key. Once the hacker
obtained the private key, he or she was able to transfer all
cryptocurrencies held on the Polygon and BSC blockchains out of the
bZx Protocol.
The Ethereum blockchain wasn't impacted by the hack because the bZx
Protocol had finished implementing certain security protocols. As a
result of the hack, users lost approximately $55 million worth of
cryptocurrency tokens. This wasn't the first time the bZx Protocol
was hacked--in 2020, the Protocol was targeted by three hacks with
losses of approximately $9 million, at least one of which involved
a phishing attack.
On Nov. 21, 2021, the bZx DAO approved a compensation plan for
those impacted by the hack. The plan compensated anyone who lost
BZRX tokens by providing replacement BZRX tokens or BZRX tokens
that would vest over time. The compensation plan also provided
"debt tokens" which will gradually be repurchased to make victims
whole. The FAC alleges complete repayment will take thousands of
years.
In December 2021, the bZx Protocol encouraged users to transfer to
a successor platform called the Ooki Protocol. The Ooki Protocol is
controlled in the same manner as the bZx Protocol, except the
controlling DAO is called the Ooki DAO and the governance tokens
are called OOKI tokens. Many BZRX tokenholders transferred their
tokens for OOKI tokens. While bZx, Fulcrum, and Torque still exist,
it is undisputed that the Ooki DAO is the direct successor to the
bZx DAO.
The Plaintiffs are 19 non-citizen bZx Protocol users, who
individually lost between $800 and $450,000 in the hack, and
collectively lost $1.7 million. The Plaintiffs initiated this
putative class action on May 2, 2022, and filed their FAC on June
27, 2022. The Leveragebox Defendants moved to dismiss the FAC in
its entirety on July 18, 2022, and the Hashed Defendants moved to
dismiss the FAC on July 29, 2022.
The Leveragebox Defendants argue the FAC fails to allege facts
sufficient to establish the duty and breach elements of a
negligence claim.
The Court finds that the Plaintiffs have alleged that the bZx DAO
had a duty to exercise reasonable care with respect to their
management of the protocol. Accepting the allegations in the FAC as
true, the Court also finds that the Plaintiffs have stated
sufficient factual matter to plausibly allege the Defendants
breached their duty care.
The Plaintiffs' theory of liability is premised on the existence of
a general partnership among all persons holding BZRX tokens. The
FAC contends the Defendants are partners of the purported bZx DAO
general partnership, and, therefore, jointly and severally liable
for the Plaintiffs' injuries. The Leveragebox Defendants argue the
FAC fails to plausibly demonstrate the existence of a general
partnership. Additionally, they argue the FAC doesn't sufficiently
allege the Defendants are members of the purported general
partnership.
The Court first considers whether the FAC includes sufficient
factual matter to plausibly allege that the bZx DAO is a general
partnership, and then considers whether the FAC sufficiently
alleges that each Defendant is a partner in such a partnership.
Accepting the allegations in the FAC as true, the Court finds that
the Plaintiffs have stated facts sufficient to allege that a
general partnership existed among the BZRX tokenholders.
Judge Burns also finds the FAC: (i) makes sufficient allegations to
permit the reasonable inference that Kistner and Bean hold BZRX
tokens, (ii) fails to allege that Leveragebox LLC was a general
partner of the bZx DAO, and (iii) fails to allege that bZeroX was a
general partner of the bZx DAO.
The Court also finds the Plaintiffs' allegations sufficient to
permit the reasonable inference that Hashed and AGE hold governance
tokens.
Hence, the motion to dismiss for failing to allege facts sufficient
to demonstrate the existence of a general partnership is granted in
part and denied in part, and the claims against Leveragebox LLC and
bZeroX LLC are dismissed.
Defendants Bean and Kistner argue that the Plaintiffs plead no
facts that warrant piercing the corporate veil of the Leveragebox
and bZeroX LLCs. However, Judge Burns points out, the FAC alleges
Bean and Kistner are liable as partners of the bZx DAO general
partnership, not as members of their LLCs. Therefore, the Court
denies Bean and Kistner's motion to dismiss to the extent it argues
they are shielded from liability by their LLCs.
Judge Burns notes that the FAC contains no allegations suggesting
that the Plaintiffs had actual knowledge of the Terms of Use when
they accessed the Protocol. The Court finds the Plaintiffs had
neither actual nor constructive notice of the Terms of Use and,
therefore, aren't bound by them. The Court further finds that the
Terms of Use don't bar the Plaintiffs' claim against any of the
Leveragebox Defendants. The Leveragebox Defendant's motion to
dismiss is denied to the extent it seeks to dismiss the Plaintiffs'
claims based on Leveragebox's Terms of Use.
The Leveragebox Defendants move to dismiss all claims against Bean,
arguing the Court lacks personal jurisdiction over him. Although
the motion to dismiss doesn't invoke Rule 12(b)(2) of the Federal
Rules of Civil Procedure, the Court will construe it as 12(b)(2)
motion to dismiss for lack of personal jurisdiction.
The Court finds it lacks specific personal jurisdiction over Bean.
The Court grants Bean's motion to dismiss for lack of personal
jurisdiction, and the claim against him is dismissed with leave to
amend to add additional facts demonstrating the requisite minimum
contacts.
In this case, the putative class includes all people, who delivered
cryptocurrency tokens to the bZx protocol and had any amount of
funds stolen in the theft reported on Nov. 5, 2021, except for
people whose only cryptocurrency stolen was the BZRX token. The FAC
also provides that none of the Plaintiffs or proposed class held
meaningful stakes of BZRX token.
The Leveragebox Defendants contend this allegation is essentially
an admission the class representatives held some BZRX tokens, and
are, therefore, general partners of the bZx DAO and equally liable
under the Plaintiffs' own general partnership theory.
While the Leveragebox Defendants are correct that, under the
Plaintiffs' general partnership theory, anyone holding BZRX tokens
at the relevant time is jointly and severally liable for the torts
of the DAO, the FAC doesn't clearly demonstrate a conflict of
interest between the named Plaintiffs and the putative class, Judge
Burns opines. Accordingly, the Court finds the FAC doesn't
demonstrate an irreconcilable conflict of interest between the
named Plaintiffs and the putative class.
Judge Burns rules that the motion to strike the class allegations
is denied without prejudice. If discovery reveals actual conflicts
of interest between the named Plaintiffs and the putative class,
the Defendants can renew their motion to strike at that time.
Additionally, the Plaintiffs can opt to revise the class definition
when filing their Second Amended Complaint to attempt to correct
any potential Rule 23(a)(4) problems.
The Hashed Defendants move to dismiss the entire action because the
FAC incorrectly names Hashed and AGE as defendants when they didn't
hold BZRX tokens. Specifically, they move to dismiss for
insufficient process under Rule 12(b)(4) and contend the Plaintiffs
violated Rule 11 because a reasonable inquiry would have revealed
Hashed and AGE weren't tokenholders.
At the motion to dismiss stage, the Court is bound by the
allegations in the FAC. Judge Burns points out that the Hashed
Defendants can't defeat those allegations by simply asserting
conflicting facts without supporting evidence or affidavits. Hence,
the Hashed Defendants' motion to dismiss under 12(b)(4) is denied.
The Court will permit either party to file a motion requesting
limited jurisdictional discovery to determine whether Hashed and
AGE actually held BZRX tokens.
The Hashed Defendants also move to dismiss the claims against them
because the Plaintiffs lack of Article III standing. Here, the FAC
alleges the Plaintiffs were injured due to the negligence of the
bZx DAO general partnership.
The Court finds that the Plaintiffs' injury is fairly traceable to
the bXz DAO general partnership and that they have standing to sue
the alleged general partners Hashed and AGE. The Hashed Defendants'
motion to dismiss for lack of standing is denied.
For these reasons, the Court grants in part and denies in part the
Leveragebox Motion, and denies without prejudice the Hashed Motion.
The claims against Tom Bean, bZeroX LLC, and Leveragebox LLC are
dismissed without prejudice. To the extent the Plaintiffs wish to
amend their claims, they may do so by filing a Second Amended
Complaint, in accordance with the Southern District's Civil Local
Rules and this Court's Civil Standing Order.
A full-text copy of the Court's Order dated March 27, 2023, is
available at https://tinyurl.com/4s4wref5 from Leagle.com.
CABOT OIL: May File Renewed Bid to Dismiss Ezell Suit by April 28
-----------------------------------------------------------------
In the lawsuit entitled JODY EZELL, et al., Plaintiffs v. DAN
DINGES, et al., Defendants, Case No. H-21-2046 (S.D. Tex.), Judge
Lee H. Rosenthal of the U.S. District Court for the Southern
District of Texas, Houston Division, rules that the renewed motion
to dismiss must be filed no later than April 28, 2023.
On Oct. 5, 2020, the Delaware County Employees Retirement System
brought a securities fraud class action suit against Cabot Oil &
Gas Corp., its Chief Executive Officer (Dan Dinges), and its Chief
Financial Officer (Scott Schroeder), on behalf of itself and
purchasers of Cabot common stock between Oct. 23, 2015, and June
12, 2020 (Del. Cnty. Emps. Retirement Sys. V. Cabot Oil & Gas
Corp., No. 21-cv-2045 (S.D. Tex.)).
Shortly after, Jody Ezell filed this shareholder derivative suit.
Ezell v. Dinges, No. 21-cv-2046 (S.D. Tex.). The two cases have
proceeded on a coordinated, but not consolidated, basis.
On June 24, 2022, the Defendants in the Ezell case filed a motion
to dismiss. The Plaintiffs were granted an extension to file their
response. Meanwhile, on Aug. 10, 2022, the court granted in part
and denied in part a separate motion to dismiss filed in the
Delaware County case. On Aug. 12, 2022, the Ezell Plaintiffs filed
their response to the motion to dismiss pending in that case.
Given the Court's intervening ruling and the lack of supplemental
briefing addressing that ruling, the pending motion to dismiss in
this case is denied as moot, Judge Rosenthal rules. The Defendants
may file a renewed motion to dismiss, and the renewed motion to
dismiss should additionally address three issues:
(1) What effect, if any, does the Court's ruling on the motion
to dismiss in the Delaware County case have on the motion
to dismiss in Ezell?
(2) What effect, if any, does the pending class certification
motion in Delaware County have on the Ezell case?
(3) Should the two cases continue to proceed on a coordinated
basis or should they be consolidated?
The renewed motion to dismiss must be filed no later than April 28,
2023. The responsive brief must be filed no later than May 19,
2023. The reply must be filed no later than May 26, 2023. The Court
will hear argument on the motion to dismiss on July 7, 2023, at
10:00 a.m., in Courtroom 11-B, United States Courthouse, 515 Rusk,
in Houston, Texas.
A full-text copy of the Court's Order dated March 27, 2023, is
available at https://tinyurl.com/2p8sayv2 from Leagle.com.
CENTER FOR APPLIED: Fails to Pay OT Wages, Saenz Suit Alleges
-------------------------------------------------------------
DESIREE SAENZ, on behalf of herself and all others similarly
situated, and on behalf of the general public v. CENTER FOR APPLIED
BEHAVIOR ANALYSIS, LLC, a California Limited Liability Company, and
DOES 1 through 100, inclusive, Case No. 23STCVOS124 (Cal. Super.,
Apr. 12, 2023) alleges that the Defendant has failed to pay all
overtime wages due to non-exempt employees.
The employees of the Defendant regularly work in excess of eight
hours in a day or more than 40 hours per week and do not receive
overtime compensation at a rate of one and one half of their
regular rate.
The Plaintiff and the Defendant's California employees were forced
to work overtime and were not paid for all hours worked including
all straight time wages, and overtime wages. The Plaintiff and
Defendant's California employees were routinely unable, and not
authorized to take their 10-minute rest periods and were also
unable to take an uninterrupted 30-minute meal break for every
shift they worked, the suit claims.
Specifically, the Plaintiff and Defendant's California employees
were forced to continue working through their meal and rest breaks
in order to assist the Defendant's needs. Because of this, the
Plaintiff and the Defendant's California employees were unable to
take their required meal and rest breaks. Moreover, the Defendants
allegedly failed to pay premium wages of one hour's pay for each
missed meal and rest break to the Plaintiff and the Defendant's
California employees who were denied timely meal and rest breaks,
the suit adds.
Plaintiff Desiree Saenz is a resident of Hawthorne, California. She
was employed by the Defendants as a non-exempt, hourly employee in
California, including in and around the city of Los Angeles, County
of Los Angeles.
Center for Applied specializes in supporting individuals with
Autism Spectrum Disorders and Developmental Delays.[BN]
The Plaintiff is represented by:
Roman Otkupman, Esq.
Nidah Farishta, Esq.
OTKUPMAN LAW FIRM
5743 Corsa Ave., Suite 123
Westlake Village, CA 91362
Telephone: (818) 293-5623
Facsimile: (888) 850-1310
E-mail: Roman@OLFLA.com
Nidah@OLFLA.com
CHAMPION PETFOODS: Court OK's Stipulated Bids to Seal Exhibits
--------------------------------------------------------------
In the class action lawsuit captioned as HOLLY RYDMAN and SERIN
NGAI, v. CHAMPION PETFOODS USA INC and CHAMPTION PETFOODS LP, Case
No. 2:18-cv-01578-TSZ (W.D. Wash.), Hon. Judge Tana Lin entered an
order granting stipulated motions to seal:
-- The Court grants the Parties' stipulated motions to seal and
seals the exhibits filed at Docket Nos. 100, 102, 121, and
130.
-- The Court directs the Defendants to file redacted copies of
the
sealed exhibits to the Flakstad Declarations based on the
proposed redactions within seven days of entry of the Order.
-- To clarify the docket, the Court directs Plaintiff to file a
notice that crossreferences the sealed exhibits to the
Peterson
Declaration to the sealed exhibits to the Flakstad
Declarations.
The Defendants have demonstrated that the materials attached to
Flakstad's two declarations are properly sealed. Flakstad avers
that the materials contain confidential and sensitive business
information that, if revealed, would cause Defendants to suffer a
competitive harm. And the briefs which cite these documents are
publicly viewable without redaction, which demonstrates that the
public still has access to the pertinent information from these
sealed records sufficient to understand the issues the Parties
dispute.
The Court notes that the Parties' redactions remove the substance
of the documents. But the Court cannot parse through the documents
to determine what might not harm Defendants if revealed. And given
that the briefs which cite these sealed records are publicly
viewable, the Court finds such an exercise unnecessary.
The Defendants include a new declaration from Flakstad in which he
explains that portions of the seventeen documents contain
confidential information concerning Defendants’ product strategy,
market position, brand identity, internal procedures for labeling,
ingredients, and formulae, and other competitively sensitive
information.
Champion retails pet food products.
A copy of the Court's order dated March 30, 2023 is available from
PacerMonitor.com at https://bit.ly/3mwb7VB at no extra charge.[CC]
CHARTER COMMUNICATIONS: Sansone Class Cert Bid Partly OK'd
----------------------------------------------------------
In the class action lawsuit captioned as JENNIFER M. SANSONE, and
BALDEMAR ORDUNO, Jr., Individually and on Behalf of Other Members
of the Public Similarly Situated, v. CHARTER COMMUNICATIONS, INC.;
TWC ADMINISTRATION LLC; CHARTER COMMUNICATIONS, LLC; and DOES 1-25,
inclusive, Case No. 3:17-cv-01880-WQH-JLB (S.D. Cal.), the Hon.
Judge William Q. Hayes entered an order granting in part and
denying in part the Plaintiffs' motion for class certification and
the Defendants' motion to deny class certification.
-- The Court will certify the Vacation Pay Class, as modified in
the Order. No later than seven (days from the date of this
Order,
Plaintiffs shall file an amended class definition for the
Court’s
approval. No later than seven days from the date Plaintiffs
file
the amended class definition, Defendants may file a response.
On December 6, 2017, Plaintiffs Jennifer M. Sansone and Baldemar
Orduno, Jr., filed the First Amended Class Action Complaint (FA”)
against Defendants Charter Communications, Inc. The FAC alleges
Plaintiffs were employees of TWCA, a company acquired by CCI as
part of a merger on or about May 18, 2016. The FAC alleges
Plaintiffs became employees of CCL after the acquisition but were
not paid out their vested vacation wages in accordance with
California law when their employment with TWCA was terminated.
On November 23, 2022, Plaintiffs filed the Motion for Class
Certification. In the motion, Plaintiffs request that the Court
certify the following class with respect to the first and sixth
claims for relief against Defendants TWCA and CCI only:
"Any and all persons who were employed by TWC Administration LLC
in
the state of California and who became employed by Charter
Communications, LLC without being paid out the vacation wages
they
had accrued at TWC Administration LLC."
Charter Communications is an American telecommunications and mass
media company with services branded as Spectrum.
A copy of the Court's order dated April 10, 2023 is available from
PacerMonitor.com at https://bit.ly/3MRfbuq at no extra charge.[CC]
COMPLIANCE DATA: Hernandez Bid for Entry of Scheduling Order Nixed
------------------------------------------------------------------
In the class action lawsuit captioned as ANA NUMIDIA HERNANDEZ, on
behalf of herself and all similarly situated individuals, v.
COMPLIANCE DATA CENTRE, INC., Case No. 1:22-cv-00102-PTG-JFA (E.D.
Va.), the Hon. Judge Patricia Tolliver Giles entered an order:
1. granting the motion for a further stay;
2. denying the Plaintiff's motion for entry of scheduling order;
and
3. staying civil action until the Court in Torres v. Equifax,
Case
No. 1:21-cv-2056 (M.D. Pa., Dec. 7, 2021) rules on the
Plaintiff's motion for class certification.
4. directing the parties to meet and confer regarding providing
the
Plaintiff with discovery from the Torres case; and
5. directing the Parties to file joint status reports every 90
days.
A copy of the Court's order dated March 30, 2023 is available from
PacerMonitor.com at https://bit.ly/3MAGJUX at no extra charge.[CC]
CONDUENT EDUCATION: Court OK's Distribution of Net Settlement Fund
------------------------------------------------------------------
Judge David N. Hurd of the U.S. District Court for the Northern
District of New York issued an order authorizing distribution of
net settlement fund in the lawsuit captioned JEFFREY CHERY,
Plaintiff v. CONDUENT EDUCATION SERVICES LLC, ACCESS GROUP, INC.,
ACCESS FUNDING 2015-1, LLC, Defendants, Case No.
1:18-cv-00075-DNH-CFH (N.D.N.Y.).
On July 8, 2022, the parties entered into a Stipulation and
Agreement of Settlement.
On July 26, 2022, the Court issued an order granting the Lead
Plaintiffs' Unopposed Motion for Preliminary Approval of Class
Action Settlement that, among other things, preliminarily approved
the Settlement as fair and reasonable.
On Dec. 2, 2022, the Court issued a Final Order and Judgment
Approving Class Action Settlement and approved the proposed plan of
allocation and retained jurisdiction over the interpretation and
implementation of the Settlement, including the administration and
distribution of the Net Settlement Fund.
The Court-appointed Claims Administrator, Rust Consulting, Inc.,
has completed the administration of the Settlement Fund, including
the processing of all submitted Claim Forms, and is now prepared,
with the approval of the Court, to distribute the net proceeds of
the Settlement.
As reflected in the Declaration of Jason M. Stinehart on Behalf of
Rust Consulting, Inc., the Claims Administrator has completed the
process of reviewing all submitted Claims, and has made a
recommendation as to the eligibility of each submitted Claim.
The Lead Plaintiffs and the Claims Administrator now seek
authorization to distribute the Net Settlement Fund to Authorized
Claimants.
Judge Hurd, therefore, ordered that the Lead Plaintiff's Unopposed
Motion for Authorization to Distribute Net Settlement Fund is
granted.
The Court has continuing jurisdiction over the subject matter of
the Action and over all parties to the Action, including all
Settlement Class Members.
The Lead Plaintiff's proposed plan for distribution of the Net
Settlement Fund to Authorized Claimants is approved. Accordingly,
(a) The administrative recommendations of Rust to accept the Timely
Eligible Claims stated in the Stinehart Declaration and the Late
But Otherwise Eligible Claims are adopted.
Rust is directed to conduct a Distribution of the Net Settlement
Fund (the "Initial Distribution"), after deducting all payments
previously allowed and the payments approved by this Order, and
after deducting any taxes, the costs of preparing appropriate tax
returns, and any escrow fees in accordance with the Court-approved
Plan of Allocation.
To encourage Authorized Claimants to deposit their checks promptly,
all Distribution checks will bear or be accompanied by the
following (or substantially similar) notation: "DEPOSIT PROMPTLY;
VOID IF NOT NEGOTIATED WITHIN 120 DAYS OF DISTRIBUTION."
Authorized Claimants that do not negotiate their Initial
Distribution checks within the time allotted or according to the
conditions set forth in the Stinehart Declaration will irrevocably
forfeit all recovery from the Settlement.
Upon the expiration of 120 days after the distribution of Cash
Awards to Eligible Class Members, the amounts representing the Net
Settlement Amount that have not been claimed, cashed, or were
unable to be delivered despite the Claims Administrator's
good-faith efforts, will be refunded to CES.
One year after the Distribution, Rust will destroy paper copies of
the Claims and all supporting documentation.
Rust will be paid the outstanding balance of its fees and expenses
in connection with the services performed, and to be performed, in
administering the Claim Forms and distributing the Net Settlement
Fund.
All persons involved in the review, verification, calculation,
tabulation, or any other aspect of the processing of the Claims
submitted, or who are otherwise involved in the administration or
taxation of the Settlement Fund or the Net Settlement Fund, are
released and discharged from any and all claims arising out of that
involvement, and all Settlement Class Members and other Claimants,
whether or not they receive payment from the Net Settlement Fund,
are barred from making any further claims against the Net
Settlement Fund, Lead Plaintiffs, Lead Counsel, the Claims
Administrator, the Escrow Agent, or any other agent retained by
Lead Plaintiffs or Lead Counsel in connection with the
administration or taxation of the Settlement Fund or the Net
Settlement Fund, or any other person released under the Settlement
beyond the amounts allocated to Authorized Claimants.
The Court retains jurisdiction to consider any further applications
concerning the administration of the Settlement, and any other and
further relief that this Court deems appropriate.
A full-text copy of the Court's Order dated March 27, 2023, is
available at https://tinyurl.com/2ky3vjkr from Leagle.com.
CORTEVA INC: Suit Seeks to Certify Class of Plan Participants
-------------------------------------------------------------
In the class action lawsuit captioned as ROBERT F. COCKERILL and
CHRISTOPHER WILLIAM NEWTON, individually and as representatives on
behalf of a class of similarly situated persons, v. CORTEVA, INC.;
DUPONT SPECIALTY PRODUCTS USA, LLC; DUPONT DE NEMOURS, INC.; E.I.
DU PONT DE NEMOURS AND COMPANY; THE PENSION AND RETIREMENT PLAN;
ADMINISTRATIVE COMMITTEE, Case No. 2:21-cv-03966-MMB (E.D. Pa.),
the Plaintiffs ask the Court to enter an order granting their
motion for class certification of:
"Participants under the Pension and Retirement Plan whose
employment with DowDuPont or any of its subsidiaries ended as of
May 31, 2019, as a result of the spin-off, who continued to be
employed by DuPont after May 31, 2019, who were not yet age 50
and
had at least 15 years of service as of that date, and who have
been
or will be denied an Early Retirement, Optional Retirement or a
Rule of 85 unreduced early retirement benefit."
Corteva is an American agricultural chemical and seed company that
was the agricultural unit of DowDuPont prior to being spun off as
an independent public company.
A copy of the Plaintiffs' motion dated March 30, 2023 is available
from PacerMonitor.com at https://bit.ly/3ZYDrhi at no extra
charge.[CC]
The Plaintiffs are represented by:
Elizabeth Hopkins, Esq.
Susan L. Meter, Esq.
Jaclyn Conover, Esq. (ID No. 312449)
KANTOR & KANTOR, LLP
19839 Nordhoff Street
Northridge, CA 91324
Telephone: (877) 783-8686
Facsimile: (253) 285-1849
E-mail: ehopkins@kantorlaw.net
smeter@kantorlaw.net
jconover@kantorlaw.net
- and -
Edward S. Stone, Esq.
EDWARD STONE LAW, P.C.
175 West Putnam Ave., 2nd Floor
Greenwich, CT 06830
Telephone: (203) 504-8425
E-mail: eddie@edwardstonelaw.com
- and -
Daniel Feinberg, Esq.
Nina Wasow, Esq.
FEINBERG, JACKSON, WORTHMAN
& WASOW LLP
2030 Addison St., Suite 500
Berkeley, CA 94704
Telephone: (510) 269-7998
Facsimile: (510) 269-7994
E-mail: dan@feinbergjackson.com
nina@feinbergjackson.com
The Defendants are represented by:
Cory A. Thomas, Esq.
Nipun J. Patel, Esq.
Todd D. Wozniak, Esq.
HOLLAND & KNIGHT LLP
Cira Centre
2929 Arch Street, Suite 800
Philadelphia, PA 19104
E-mail: Cory.thomas@hklaw.com
Nipun.patel@hklaw.com
Todd.wozniak@hklaw.com
COSTCO WHOLESALE: Wins Summary Judgment Bid vs Pit Row
-------------------------------------------------------
In the class action lawsuit captioned as PIT ROW INC., et al., v.
COSTCO WHOLESALE CORPORATION, the Hon. Judge William C. Griesbach
entered an order:
1. granting Costco's motion for summary judgment; and
2. denying as moot the Plaintiffs' motion for class
certification.
The court concluded that, because the plaintiff did not present
evidentiary facts of harm or threatened injury, he did not
establish his cause of action under the Unfair Sales Act.
Because Plaintiffs have not presented evidentiary facts to
establish that they suffered harm or were threatened with injury,
Costco's motion for summary judgment will be granted.
The Plaintiffs, twelve corporate entities that own and operate
retail gas stations located in Green Bay, Wisconsin, brought this
action against Defendant Costco Wholesale Corporation, alleging
Costco violated the Wisconsin Unfair Sales Act, by selling regular
unleaded motor vehicle fuel below the cost to the retailer. The
court has jurisdiction over the action pursuant to 28 U.S.C.
section 1332.
Costco operates members-only warehouse clubs throughout the United
States.
The Plaintiffs filed the instant action asserting that Costco
violated the Unfair Sales Act on 263 days between October 1, 2019,
and December 31, 2020, at the Bellevue Costco by selling regular
unleaded motor vehicle fuel below the cost to the retailer.
Costco asserts that it did not violate the Unfair Sales Act on any
of the alleged violation dates because its pricing conformed with
the express terms of the Act.
Costco owns and operates a chain of membership warehouses.
A copy of the Court's order dated March 30, 2023 is available from
PacerMonitor.com at https://bit.ly/3MAoRt1 at no extra charge.[CC]
COVIA HOLDINGS: Phelps Securities Suit Will Proceed Against Deckard
-------------------------------------------------------------------
Judge J. Philip Calabrese of the U.S. District Court for the
Northern District of Ohio grants in part and denies in part the
motion to dismiss filed by Defendants Jenniffer Deckard, Mark
Barrus, Michael Biehl, Andrew Eich, and Richard Navarre in the case
captioned as WILLIAM PLAGENS, et al., Plaintiffs v. JENNIFFER D.
DECKARD, et al., Defendants, Case No. 1:20-cv-2744, (N.D. Ohio).
In the case at bar, Lead Plaintiff Dr. Thomas Phelps seeks to
recover on behalf of a putative class for alleged violations of
federal securities laws. The Plaintiff asserts three causes of
action. In Count I, the Plaintiff alleges violations of Section
10(b) of the Exchange Act, 15 U.S.C. Section 78j(b), and Rule
10b-5. Count II alleges violations of Section 20(a) of the Exchange
Act. In Count III, Plaintiff alleges violation of Section 14(a) of
the Exchange Act and Rule 14a-9 of the Securities and Exchange
Commission against Ms. Deckard. He also seeks to maintain these
claims on behalf of the class. The Plaintiff defines the class
period as running from March 10, 2016 through June 29, 2020. The
Plaintiff also seeks compensatory damages.
The Defendants, all of whom served as officers of Covia Holdings
Corporation or its predecessors, principally Fairmount Santrol
Holdings Inc., to wit: Jenniffer D. Deckard served as Fairmount
Santrol's president and chief executive officer; Mark E. Barrus,
served as the interim chief financial officer and interim principal
accounting officer of Fairmount Santrol from Oct. 20, 2015 to May
2016; Michael F. Biehl served as Fairmount Santrol's chief
financial officer and its principal accounting officer and
executive vice president from May 2016 to May 2018; Andrew D. Eich
served as Covia's executive vice president and chief financial
officer from June 2018 through the end of the class period; and
Richard A. Navarre served as Covia's chief executive officer from
September 2019 through the end of the class period and as chair of
the board of directors and the chair of its executive and audit
committee beginning in June 2018.
In the briefing on the Defendants' motion, the Plaintiff concedes
that his claims in Count III fail to state a claim. Therefore, the
Court grants the motion to dismiss this count and proceeds to
analyze the motion with respect to Counts I and II.
The alleged misrepresentations and omissions, which the Plaintiff
maintains are actionable, fall into three general categories: (1)
statements comparing PowerProp's performance to that of lightweight
ceramics; (2) overstatements or misstatements of testing
performance results for Propel SSP; and (3) inadequate, misleading
risk disclosures concerning the commercial prospects for PowerProp,
Propel SSP, and Propel SSP 350. Throughout its analysis, the Court
identifies whether the statement is attributable to any particular
Defendant or solely to the Company or certain non-parties.
The Court determines that "Ms. Deckard signed each of the Company's
Form 10-Ks during the class period. Mr. Barrus signed the Company's
2015 Form 10-K, and Mr. Biehl signed the Company's 2016 and 2017
Forms 10-K. . . Plaintiff generally alleges that each Defendant:
"directly participated in management of the Company"; "was directly
involved in the day-to-day operations of the Company at the highest
levels"; "was privy to confidential proprietary information
concerning the Company and its business and operations"; "was
directly or indirectly involved in. . . disseminating the false and
misleading statements and information alleged herein"; "was
directly or indirectly involved in. . . the Company's internal
controls"; "was aware of or recklessly disregarded the fact that
the false and misleading statements were being issued concerning
the Company"; and/or "approved or ratified" the false or misleading
statements."
Considering the totality of the Plaintiff's allegations against
each Defendant under the Reform Act and the law of this Circuit
both individually and collectively, the Court finds that "the bulk
of the specific allegations in the consolidated amended complaint
concern Ms. Deckard. . . She spoke during the Company's earnings
calls and press conferences, and she signed the Company's Form
10-Ks during the class period." Taking all of Ms. Deckard's
statements together, the Court finds that the Plaintiff's
allegations establish a strong inference that she at least
recklessly, if not knowingly, misled investors when she made the
material misstatements of hard information alleged in the
consolidated amended complaint. This inference is at least as
strong as the competing explanations for Ms. Deckard's statements
that she advances.
Since there are no allegations against Mr. Barrus or Mr. Biehl,
other than their signatures on the Company's 2015 10-K and 2016 and
2017 10-Ks, respectively, the Court grants the Defendants' motion
as to Mr. Barrus and Mr. Biehl and dismisses all counts against
them. Likewise, the Court dismisses all counts against Mr. Navarre
and Mr. Eich. But Count I will proceed against Ms. Deckard.
A full-text copy of the Opinion and Order dated March 30, 2023, is
available https://tinyurl.com/56at38ye from Leagle.com.
CREDIT BUREAU: Court Lifts Stay of Myers Suit
---------------------------------------------
In the class action lawsuit captioned as RICHARD D. MYERS,
Bankruptcy trustee for the bankruptcy estate of Donna Jean
Lunsford, v. CREDIT BUREAU SERVICES, INC., and C. J. TIGHE, Case
No. 8:20-cv-00141-JFB-SMB (D. Neb.), Hon. Judge Joseph F. Bataillon
entered an order that:
1. The stay of this action is lifted.
2. The pending motions for class certification and summary
judgment
are denied without prejudice.
3. The parties shall submit briefs to the Court outlining their
positions on the effect of the Bassett ruling, if any, on the
present action within 14 days of the date of this order; each
party will have seven days thereafter to respond.
Credit Bureau specializes in healthcare receivables.
A copy of the Court's order dated March 30, 2023 is available from
PacerMonitor.com at https://bit.ly/3GArS8V at no extra charge.[CC]
CREDIT SUISSE: Seeks Reconsideration of March 16, 2023 Order
-------------------------------------------------------------
In the class action lawsuit captioned as SET CAPITAL LLC, et al.,
v. CREDIT SUISSE GROUP AG, et al. Case No. 1:18-cv-02268-AT-SN
(S.D.N.Y.), the Defendants ask the Court to reconsider its March
16, 2023, Order on Plaintiffs' motion for class certification.
Credit Suisse Group AG is a global investment bank and financial
services firm founded and based in Switzerland.
A copy of the Defendants' motion dated March 30, 2023 is available
from PacerMonitor.com at https://bit.ly/3UwVD0b at no extra
charge.[CC]
The Defendants are represented by:
Herbert S. Washer, Esq.
Tammy L. Roy, Esq.
Edward N. Moss, Esq.
Ivan Torres, Esq.
CAHILL GORDON & REINDEL LLP
32 Old Slip
New York, New York 10005
Telephone: (212) 701-3000
Facsimile: (212) 269-5420
E-mail: hwasher@cahill.com
troy@cahill.com
emoss@cahill.com
itorres@cahill.com
CYTODYN INC: Continues to Defend Leronlimab-Related Class Suit
--------------------------------------------------------------
Cytodyn Inc. disclosed in its Form 10-Q Report for the quarterly
period ending February 28, 2023 filed with the Securities and
Exchange Commission on April 10, 2023, that the Company continues
to defend itself from the leronlimab-related class suit in the U.S.
District Court for the Western District of Washington.
On March 17, 2021, a stockholder filed a putative class-action
lawsuit (the "March 17, 2021 lawsuit") in the U.S. District Court
for the Western District of Washington against the Company and
certain former officers. The complaint generally alleges the
defendants made false and misleading statements regarding the
viability of leronlimab as a potential treatment for COVID-19.
On August 9, 2021, the court appointed lead plaintiffs for the
March 17, 2021 lawsuit.
On December 21, 2021, lead plaintiffs filed an amended complaint,
which is brought on behalf of an alleged class of those who
purchased the Company's common stock between March 27, 2020 and May
17, 2021.
The amended complaint generally alleges that the defendants
violated Sections 10(b) and/or 20(a) of the Securities Exchange Act
of 1934 and Rule 10b-5 promulgated thereunder by making purportedly
false or misleading statements concerning, among other things, the
safety and efficacy of leronlimab as a potential treatment for
COVID-19, the Company's CD10 and CD12 clinical trials, and its HIV
BLA.
The amended complaint also alleges that the individual defendants
violated Section 20A of the Exchange Act by selling shares of the
Company's common stock purportedly while in possession of material
nonpublic information.
The amended complaint seeks, among other relief, a ruling that the
case may proceed as a class action and unspecified damages and
attorneys’ fees and costs.
On February 25, 2022, the defendants filed a motion to dismiss the
amended complaint.
On June 24, 2022, lead plaintiffs filed a second amended complaint.
The second amended complaint is brought on behalf of an alleged
class of those who purchased the Company's common stock between
March 27, 2020 and March 30, 2022, makes similar allegations, names
the same defendants, and asserts the same claims as the prior
complaint, adds a claim for alleged violation of Section 10(b) of
the Exchange Act and Rule 10b-5(a) and (c) promulgated thereunder,
and seeks the same relief as the prior complaint.
The Company and the individual defendants deny all allegations of
wrongdoing in the complaint and intend to vigorously defend the
matter.
Cytodyn Inc. is a clinical-stage biotechnology company based in
Washington.
D2C LLC: Faces Martinez Suit Over Data Privacy Violations
---------------------------------------------------------
MAURICIO MARTINEZ, individually and on behalf of all others
similarly situated, Plaintiff v. D2C, LLC d/b/a UNIVISION NOW,
Defendant, Case No. 1:23-cv-21394-XXXX (S.D., Fla., April 13, 2023)
alleges violation of the Video Privacy Protection Act.
The Plaintiff alleges in the complaint that Univision NOW uses a
"Pixel" tracking cookie to disclose to Meta Platforms, Inc. f/k/a
Facebook ("Meta" or "Facebook") a record of its digital
subscribers' identities side-by-side with the specific videos its
digital subscribers requested or obtained. Univision NOW does so
without the subscribers' "informed, written consent."
Univision NOW disclosed to Facebook the Plaintiff's personally
identifiable information, including his Facebook ID ("FID"), along
with specific video titles and the videos' URLs identifying
specific prerecorded videos Plaintiff requested or obtained
(together, "Personal Viewing Information"), says the suit.
D2C, LLC d/b/a UNIVISION NOW is a video streaming service that
offers subscriptions and provides prerecorded video content to its
subscribers. [BN]
The Plaintiff is represented by:
Brian Levin, Esq.
Kaki J. Johnson, Esq.
LEVIN LAW, P.A.
2665 South Bayshore Drive, PH2
Miami, FL 33133
Telephone: (305) 402-9050
Facsimile: (305) 676-4443
Email: brian@levinlawpa.com
kaki@levinlawpa.com
sarah@levinlawpa.com
- and -
Matthew R. Wilson, Esq.
Michael J. Boyle, Jr., Esq.
Jared W. Connors, Esq.
MEYER WILSON CO., LPA
305 W. Nationwide Blvd.
Columbus, Ohio 43215
Telephone: (614) 224-6000
Facsimile: (614) 224-6066
Email: mwilson@meyerwilson.com
mboyle@meyerwilson.com
jconnors@meyerwilson.com
ENTRATA INC: Faces Senk Suit Over Debt Collection Practices
-----------------------------------------------------------
DERRICK SENK, individually and on behalf of all others similarly
situated, Plaintiff v. ENTRATA INC, Defendant, Case No.
23-006600-CI (Fla., Cir., Pinellas Cty., April 14, 2023) seeks to
stop the Defendant's unfair and unconscionable means to collect a
debt.
ENTRATA, INC. operates as a software development company. The
Company offers property management software that brings all the
websites, accounting, utilities, and other information on one
unified platform. Entrata provides applications for management,
marketing, and leasing solutions. [BN]
The Plaintiff is represented by:
Jennifer G. Simil, Esq.
Jibrael S. Hindi, Esq.
THE LAW OFFICES OF JIBRAEL S. HINDI
110 SE 6th Street, Suite 1744
Fort Lauderdale, FL 33301
Telephone: (954) 907-1136
E-mail: jibrael@jibraellaw.com
jen@jibraellaw.com
FEDERAL GOVERNMENT: May 31 Extension of Class Cert Deadline Sought
------------------------------------------------------------------
In the class action lawsuit captioned as EDWARD G. NEWMAN JR.,
individually and on behalf of all others similarly situated, v.
FEDERAL GOVERNMENT ADVISORS LLC, Case No. 8:22-cv-02128-KKM-CPT
(M.D. Fla.), the Plaintiff asks the Court to enter an order
extending the class certification deadline until May 31, 2023.
The Plaintiff contends that he has repeatedly attempted to confer
with Defendant regarding its failure to adequately participate in
discovery and, more recently, regarding the relief requested by
this motion. Defendant's counsel has failed and effectively refused
to confer.
On February 1, 2023, the Court entered an Order extending the
Plaintiff's deadline to file a class certification motion until
March 31, 2023, as a result of the Defendant's failure to
participate in discovery.
On March 27, 2023, Plaintiff's counsel was advised by IQdialer that
Defendant is not one of its customers, that it has no record of
calls from the telephone number Defendant used to make prerecorded
calls, including to the Plaintiff, and that IQdialer's dialer does
not itself have the capability to send prerecorded calls without
the involvement of other software.
As such, even the small amount of information that has been
provided in discovery is inaccurate, and Plaintiff has been
prevented from obtaining all of the discovery necessary to pursue
this case on a class basis, including the call logs reflecting the
Defendant's prerecorded calls to the putative class.
As a result, Plaintiff requests an extension until May 31, 2023 to
move for class certification to allow time for the ruling on the
motion to compel and the production of relevant documents and
information necessary for class certification. Extending the class
certification deadline until May 31, 2023 will not require any
other changes to the case schedule.
FGA is a Tampa-based consultancy that specializes in government
contract consulting.
A copy of the Plaintiff's motion dated March 30, 2023 is available
from PacerMonitor.com at https://bit.ly/3GBm3rM at no extra
charge.[CC]
The Plaintiff is represented by:
Avi R. Kaufman, Esq.
Rachel E. Kaufman, Esq.
KAUFMAN P.A.
237 South Dixie Highway, 4th Floor
Coral Gables, FL 33133
Telephone: (305) 469-5881
E-mail: kaufman@kaufmanpa.com
rachel@kaufmanpa.com
- and -
Stefan Coleman, Esq.
COLEMAN PLLC
66 West Flagler Street, Suite 900
Miami, FL 33130
Telephone: (877)333-9427
E-mail: law@stefancoleman.com
FEDEX GROUND: Filing of Class Certification Bid Due Sept. 25
------------------------------------------------------------
In the class action lawsuit captioned as TRAVIS CHAPMAN and JOHN
CHURCHWELL, individually, on behalf of all others similarly
situated, and as representatives of the State of California on
behalf of all aggrieved employees, v. FEDEX GROUND PACKAGE SYSTEM,
INC., a Delaware corporation d/b/a FedEx Home Delivery, and DOES 1
through 50, inclusive, Case No. 2:19-cv-00410-TLN-DMC (E.D. Cal.),
Hon. Judge Troy L. Nunley entered an order that the case schedule
in the Chapman action is amended as follows:
Event Deadline
Class Certification Discovery August 28, 2023
Completion Date
Plaintiffs' Motion for Class September 25, 2023
Certification
Defendant's Opposition to Motion December 8, 2023
for Class Certification
Plaintiffs' Reply re Class January 22, 2024
Certification
Fedex Ground provides package delivery services.
A copy of the Court's order dated March 30, 2023 is available from
PacerMonitor.com at https://bit.ly/3ZZbfdV at no extra charge.[CC]
The Plaintiffs are represented by:
Daniel V. Santiago, Esq.
LAW OFFICES OF DANIEL V. SANTIAGO, PC
355 South Grand Avenue, Suite 2450
Los Angeles, CA 90071
Telephone: (760) 652-9801
E-mail: dvs@dvslawoffices.com
- and -
Brian D. Gonzales, Esq.
THE LAW OFFICES OF BRIAN D.
GONZALES, PLLC
2580 East Harmony Road, Suite 201
Fort Collins, CO 80528
Telephone: (970) 214-0562
E-mail: bgonzales@coloradowagelaw.com
- and -
Dustin T. Lujan, Esq.
LUJAN LAW OFFICE
1603 Capitol Avenue, Suite 310 A559
Cheyenne, WY 82001
Telephone: (970) 999-4225
E-mail: wyoadvocate@gmail.com
The Defendants are represented by:
Scott Voelz, Esq.
Adam J. Karr, Esq.
Allan W. Gustin, Esq.
O'MELVENY & MYERS LLP
400 South Hope Street, 18ᵗʰ Floor
Los Angeles, CA 90071-2899
Telephone: (213) 430-6000
Facsimile: (213) 430-6407
E-mail: svoelz@omm.com
akarr@omm.com
agustin@omm.com
FIRSTENERGY CORP: Court Certifies Class in Securities Fraud Suit
----------------------------------------------------------------
In the class action lawsuit captioned as Owens v. FirstEnergy
Corp., et al., Case No. 2:20-cv-04287-ALM-KAJ (S.D. Ohio), Hon.
Judge Algenon Marbley entered an order granting the Plaintiffs'
motion for class certification and certifying the class under
subsection 23(b)(3) of the Federal Rules of Civil Procedure.
In addition, the Court appoints Lead Counsel Robbins Geller Rudman
& Dowd LLP as class counsel and Murray Murphy Moul + Basil LLP as
liaison counsel.
The S.D. Ohio Court finds, in line with the rationale used to find
adequacy, that the Plaintiffs have adequately managed this case.
There is little evidence that would indicate Plaintiffs are likely
to experience difficulties in handling future case management
responsibilities. For these reasons, the superiority factors weigh
in favor of class certification.
The Court finds that the proposed class counsel has adequately
demonstrated their efforts in prosecuting the Plaintiffs' claims
and have the requisite experience required by Rule 23(g)(A)(i) and
(ii).
The case is a consolidated action for securities fraud brought by
Lead Plaintiff Los Angeles County Employees Retirement Association
(LACERA) on behalf of a putative class of investors in the
Ohio-based electrical utility company FirstEnergy Corporation.
The Plaintiffs allege violations of the Securities Exchange Act of
1934 and the Securities Act of 1933 by FirstEnergy, named officers
and directors, and underwriters, in relation to the Ohio House Bill
6 scandal.
FirstEnergy is an electric utility headquartered in Akron, Ohio. It
was established when Ohio Edison acquired Centerior Energy in 1997.
A copy of the Court's order dated March 30, 2023 is available from
PacerMonitor.com at https://bit.ly/3mtWbaM at no extra charge.[CC]
FLORIDA: Class Certification Granted in Meza v. Marstiller/AHCA
---------------------------------------------------------------
Judge Marcia Morales Howard of the U.S. District Court for the
Middle District of Florida, Jacksonville Division, grants the
Plaintiffs' Motion for Class Certification in the lawsuit styled
BLANCA MEZA, by and through her Guardian, Aide Hernandez, DESTINY
BELANGER, by and through her Guardian, Julie Belanger, on behalf of
themselves and all others similarly situated, and DISABILITY RIGHTS
FLORIDA, INC., Plaintiffs v. SIMONE MARSTILLER, in her official
Capacity as Secretary for the FLORIDA AGENCY FOR HEALTH CARE
ADMINISTRATION, Defendant, Case No. 3:22-cv-783-MMH-LLL (M.D.
Fla.).
In the Motion, filed on July 17, 2022, the Plaintiffs ask the Court
to certify this matter as a class action pursuant to Rule 23 of the
Federal Rules of Civil Procedure. Defendant Simone Marstiller, in
her official capacity as Secretary for the Florida Agency for
Health Care Administration (AHCA) filed a response in opposition to
the Motion on Sept. 8, 2022.
With leave of Court, Plaintiffs Blanca Meza, by and through her
guardian, Aide Hernandez; Destiny Belanger, by and through her
Guardian, Julie Belanger; and Disability Rights Florida filed a
reply in support of their Motion on Oct. 6, 2022. In addition, the
Court notes that AHCA filed a Request for Oral Argument. Upon
review, the Court does not find oral argument to be necessary to
the resolution of the Motion.
Plaintiff Blanca Meza is 22 years old and diagnosed with spastic
quadriplegic cerebral palsy, muscle spasticity, neuromuscular
scoliosis, and partial epilepsy. She has lived her entire life at
home with her family, where her mother, Aide Hernandez, acts as her
24-7 care provider.
Plaintiff Destiny Belanger is also 22 years old and is diagnosed
with encephalopathy, acquired brain injury, non-intractable
epilepsy, intellectual disability, and expressive language
disorder. She, too, lives at home with her family, where she has
lived almost her entire life. And her mother, Julie Belanger, also
provides her with 24-7 care. As low-income Florida residents with
significant disabilities, both Belanger and Meza are enrolled in
Florida's Medicaid program.
Plaintiffs Meza and Belanger are both incontinent of bowel and
bladder. Their primary care physician, Dr. Rita Nathawad, has
prescribed incontinence briefs and underpads to both women to treat
their incontinence and prevent secondary effects, such as skin
breakdowns or rash. It is Dr. Nathawad's opinion that incontinence
supplies are medically necessary for both women. Significantly, the
Florida Medicaid program authorized incontinence supplies,
including adult incontinence briefs and underpads, as medically
necessary and reimbursed the supplies for each woman until they
reached the age of 21. However, two months after their twenty-first
birthdays, Florida Medicaid stopped covering Belanger and Meza's
incontinence supplies.
The Plaintiffs allege that, with limited exceptions, Florida
Medicaid categorically does not cover incontinence supplies for
Medicaid recipients aged 21 and older (i.e., adults). However,
according to the Plaintiffs, AHCA does provide Medicaid coverage of
medically necessary incontinence supplies for Medicaid-enrolled
adults, who reside in a nursing facility. AHCA does not dispute
that under its current policies, Medicaid-recipients 21 years of
age or older are generally not eligible for incontinence supplies.
Through this action, Belanger and Meza, on behalf of themselves and
others similarly situated, along with Plaintiff Disability Rights
Florida (DRF), seek to compel AHCA to cover medically necessary
incontinence supplies through Florida's Medicaid program.
In Count One, the Plaintiffs contend that AHCA's policy to deny the
Plaintiffs, and all similarly situated putative class members,
coverage of incontinence supplies under Florida's State Plan
Medicaid program violates the Medicaid Act's mandatory home health
care requirement in that it eliminates coverage of a mandatory home
health service--incontinence supplies--for categorically needy
non-institutionalized adult Medicaid beneficiaries. The Plaintiffs
seek to enforce these provisions of the federal Medicaid Act
pursuant to 42 U.S.C. Section 1983.
In Counts Two and Three, the Plaintiffs allege that AHCA's policy
of covering incontinence supplies for individuals with disabilities
living in institutions such as nursing homes, but not those living
in the community, violates Title II of the Americans with
Disabilities Act (ADA), as well as Section 504 of the
Rehabilitation Act (RA).
Based on these claims, the Plaintiffs seek entry of a declaratory
judgment that AHCA's policy is invalid as it violates the Medicaid
Act, Title II of the ADA, and Section 504 of the RA, and a
permanent injunction prohibiting AHCA from implementing its policy
of denying Medicaid coverage of medically necessary incontinence
supplies to the named Plaintiffs and the putative class.
The Court finds that the Plaintiffs have satisfied the requirements
of Rule 23(a) and (b)(2), and as such, the Motion is due to be
granted.
Accordingly, Judge Howard grants the Plaintiffs' Motion for Class
Certification.
The Court, having found that the Plaintiffs have met the
prerequisites to class certification set forth in Rule 23,
certifies the following Class with respect to Counts I, II, and III
of the Complaint:
All Florida Medicaid recipients whose prescription for
incontinence supplies has been or will be denied Medicaid
coverage based on Defendant's exclusion of those supplies
for recipients aged 21 and older.
The Court designates Plaintiffs Blanca Meza, by and through her
guardian, Aide Hernandez and Destiny Belanger, by and through her
Guardian, Julie Belanger as Class Representatives, and appoints the
Plaintiffs' Counsel, Katy DeBriere, Alison DeBelder, and Lewis
Golinker as Class Counsel.
A full-text copy of the Court's Order dated March 27, 2023, is
available at https://tinyurl.com/yvver745 from Leagle.com.
FLYWHEEL ENERGY: Class Cert Response Due April 28 in Eubanks Suit
-----------------------------------------------------------------
In the class action lawsuit captioned as Eubanks, et al., v.
Flywheel Energy Production, LLC, et al., Case No. 4:21-cv-00329
(E.D. Ark., Filed April 21, 2021), Hon. Judge Lee P. Rudofsky
entered an order granting unopposed motion for extension of time to
respond to renewed motion for class certification.
-- Response due by April 28, 2023.
The suit involves breach of contract issues.
Flywheel Energy is a private exploration and production
company.[CC]
FLYWHEEL ENERGY: Class Cert Response Due April 28 in Oliger Suit
----------------------------------------------------------------
In the class action lawsuit captioned as Oliger, et al., v.
Flywheel Energy Production LLC, Case No. 4:20-cv-01146 (E.D. Ark.,
Filed Sept. 25, 2020), Hon. Judge Lee P. Rudofsky entered an order
-- Response due by April 28, 2023.
The suit involves breach of contract issues.
Flywheel Energy is a private exploration and production
company.[CC]
GERALDI'S OF BERRYVILLE: Faces Suit Over Alleged Tip Skimming
-------------------------------------------------------------
LILLIANA FERRELL, individually and on behalf of all others
similarly situated, Plaintiff v. GERALDI'S OF BERRYVILLE, INC.
d/b/a GERALDI'S OF FAYETTEVILLE, Case No. 5:23-cv-05058-TLB (W.D.
Ark., April 14, 2023) seek to recover all tips kept by the
Defendants, liquidated damages, interest, and attorneys' fees and
costs.
The Plaintiff was employed by Defendant as a server.
GERALDI'S OF BERRYVILLE, INC. d/b/a GERALDI'S OF FAYETTEVILLE owns
and operates a restaurant Berryville, Arkansas. [BN]
The Plaintiff is represented by:
Bill G. Horton, Esq.
T.J. Fosko, Esq.
HORTON LAW FIRM
1000McClain Rd. Ste. 612
Bentonville, AR 72712
Telephone: (479) 268-473
Facsimile: (855) 936-5115
Email: bill@callhorton.com
GODIVA CHOCOLATIER: Chocolate Products Contain Lead and Cadmium
---------------------------------------------------------------
ELIZABETH KERMANI, individually and on behalf of all others
similarly situated, Plaintiff v. GODIVA CHOCOLATIER, INC.,
Defendant, Case No. 2:23-cv-02832 (C.D. Cal., April 14, 2023)
alleges that the Defendant materially omits the contents of lead
and cadmium therein in its Signature Dark Chocolate 72% Cacao and
all other substantially similar chocolate products manufactured or
sold by Defendant to consumers in California and the United
States.
According to the Plaintiff in the complaint, the Defendant has
misled reasonable consumers, including Plaintiff, into believing
the Product is safe for consumption when it is not. The Defendant
had a duty to warn consumers about the risks associated with
consuming its Product because Defendant knew or should have known
that its Product contains heavy metals harmful to humans. The
Defendant's failure to disclose the heavy metal content in its
Product is a material omission because the information is relevant
to consumers making informed purchase decisions, says the suit.
Lead and cadmium are known to have adverse effects on humans, and
this information could influence consumers' decisions to purchase
the Product. The Plaintiff and other consumers like her would not
have purchased the Product had they known the Product contained
harmful heavy metals, the suit added.
GODIVA CHOCOLATIER, INC. manufactures confectionery food products.
The Company produces and distributes chocolate candy, coffee
beverages, liqueurs, and baked desserts. Godiva Chocolatier
maintains chocolate boutiques and shops throughout the United
States. [BN]
The Plaintiff is represented by:
Ryan J. Clarkson, Esq.
Bahar Sodaify, Esq.
Alan Gudino, Esq.
Ryan D. Ardi, Esq.
CLARKSON LAW FIRM, P.C.
22525 Pacific Coast Highway
Malibu, CA 90265
Telephone: (213) 788-4050
Facsimile: (213) 788-4070
Email: rclarkson@clarksonlawfirm.com
bsodaify@clarksonlawfirm.com
agudino@clarksonlawfirm.com
rardi@clarksonlawfirm.com
GOVERNMENT EMPLOYEES: Appeals Class Cert. Order in Lanzillotta Suit
-------------------------------------------------------------------
GOVERNMENT EMPLOYEES INSURANCE COMPANY (GEICO), et al. are taking
an appeal from a court order granting in part and denying in part a
plaintiff's motion for class certification in the lawsuit entitled
Mary Lanzillotta, individually and on behalf of all others
similarly situated, Plaintiff, v. Government Employees Insurance
Company (GEICO), et al., Defendants, Case No.
1:19-cv-01465-DLI-JRC, in the U.S. District Court for the Eastern
District of New York.
The Plaintiff sued individually and representatively on behalf of a
proposed class of allegedly similarly situated individuals, seeking
to represent a class under Rule 23(b)(3) of the Federal Rules of
Civil Procedure, alleging that, inter alia, defendant GEICO General
Insurance Company ("GEICO") prematurely exhausted the limits of
their Personal injury protection (PIP) coverage by improperly
deducting therefrom certain statutory offsets applicable to lost
wage benefits.
On February 4, 2022, the Plaintiff moved to certify a class of
insured individuals whose First Party Benefits coverage with the
Defendants purportedly were exhausted prematurely on or after March
13, 2013.
On March 21, 2022, the Defendants opposed the motion by asserting
that both the Plaintiff and the putative class members lack Article
III standing, individual issues predominate common questions, and
there are superior methods of adjudicating the Plaintiff's claims
other than by a class action.
On March 25, 2023, the Court, through an order entered by Judge
Dora Lizette Irizarry, certified a class under Rule 23(b)(3) as to
the breach of contract claim against GEICO, while denying
certification as to the No-Fault Statute violation claim and the
breach of contract claim against the other named defendants.
The appellate case is captioned Mary Lanzillotta v. Government
Employees Insurance Company (GEICO), in the United States Court of
Appeals for the Second Circuit, filed on April 7, 2023. [BN]
Plaintiff-Respondent MARY LANZILLOTTA, individually and on behalf
of all others similarly situated, is represented by:
John K. Weston, Esq.
SACKS WESTON DIAMOND, LLC
1845 Walnut Street, Suite 1600
Philadelphia, PA 19103
Telephone: (215) 925-8200
E-mail: jweston@sackslaw.com
Defendants-Petitioners GOVERNMENT EMPLOYEES INSURANCE COMPANY
(GEICO), et al. are represented by:
Brian L. Bank, Esq.
RIVKIN RADLER LLP
926 RXR Plaza
Uniondale, NY 11556
Telephone: (516) 357-3000
E-mail: brian.bank@rivkin.com
GOVERNMENT EMPLOYEES: E.D. New York Denies Bid to Dismiss See Suit
------------------------------------------------------------------
In the case captioned as EVERETT SEE and SALVATORE CRISTIANO, on
behalf of themselves and all others similarly situated, Plaintiffs
v. GOVERNMENT EMPLOYEES INSURANCE COMPANY d/b/a GEICO, and GEICO
GENERAL INSURANCE COMPANY, Defendants, Case No. 21-CV-547 (PKC)
(JMW) (E.D.N.Y.), Judge Pamela K. Chen of the U.S. District Court
for the Eastern District of New York adopts the Report and
Recommendation issued by Magistrate Judge James M. Wicks, which
recommends denial of the Defendants' motions and their demand for
appraisal.
The Plaintiffs, Everett See and Salvatore Cristiano, bring this
class action lawsuit for breach of contract and violations of New
York General Business Law Section 349 against the Defendants:
Government Employees Insurance Company and GEICO General Insurance
Company.
On June 16, 2021, the Defendants moved to dismiss the lawsuit and
to strike certain allegations. Before filing their motions, in Jan.
2021, the Defendants demanded appraisal pursuant to the subject
insurance policies.
The Court begins with the threshold issue of whether the
Plaintiffs' claims in this case should have been resolved through
the appraisal process laid out in the Policies and thus are not
properly the subject of a lawsuit. The R&R denied the Defendants
summary judgment on this issue and effectively granted the
Plaintiffs summary judgment on it, concluding that "there is no
genuine dispute of material fact that Defendants' demand for
appraisal was untimely." More specifically, Judge Wicks concluded
that "Defendants' motion for an appraisal fails in the first
instance based on the plain language of the appraisal provision
paired with precedent interpreting the exact policy language" in an
R&R issued by Judge Gary Brown of this District in Milligan v.
GEICO Insurance Company, No. 16-CV-240 (JMA) (GRB), 2017 WL 9939046
(E.D.N.Y. July 14, 2017). Thus, the Court denies the Defendants'
motion for summary judgment for appraisal and adopts Judge Wicks'
conclusion that the Defendants' demand for appraisal is untimely.
The Defendants' belated appraisal demand therefore does not warrant
the dismissal of this action.
The R&R found that the Plaintiffs have adequately alleged that the
Defendants engaged in materially misleading conduct because
"Defendants agreed, under the respective insurance policies to pay
Plaintiffs the actual cash value for total loss vehicles." That
means, "a reasonable consumer. . . would expect to receive the
actual cash value for his or her vehicle in the event of a
collision." Accepting Plaintiffs' allegations as true and drawing
all reasonable inferences in their favor, Judge Wicks found that
the "condition adjustments" that CCC Information Systems, Inc.
applied to the comparator vehicles are likely "hidden monetary
adjustments" that reduce the valuation of claimants' loss
vehicles.
In his R&R, Judge Wicks recommended that the Court deny the motion
to dismiss the breach of contract claim. He concluded that the
Plaintiffs' allegations that CCC's valuation process "resulted in
valuations that are less than the actual cash value by a difference
of the negative condition adjustment" were sufficient to plausibly
allege a claim that the Defendants had breached the Policies. In
determining that the Plaintiffs' claim against Defendant Government
Employees should proceed, Judge Wicks found that the Plaintiffs had
sufficiently alleged facts to support a theory that Defendant GEICO
General was acting as Defendant Government Employees' agent.
The Court joins Judge Wicks's assessment that the Plaintiffs'
Amended Complaint "is teeming with allegations that the Defendants
underpaid the Plaintiffs' for their total loss vehicle based on
their allegedly deceptive practice" of using CCC's valuation
methodology. Likewise, the Court finds that there is no clear
contradiction between the allegations in the Amended Complaint and
the incorporated CCC reports.
Finally, the Court denies the Defendants' motion to strike the
third-party class allegations. The Court agrees with the R&R's
application of the principles articulated by the Court of Appeals
to the case Himmelstein, McConnell, Gribben, Donoghue & Joseph, LLP
v. Matthew Bender & Co., Inc., 37 N.Y.3d 169, 176 (N.Y. 2021),
which interpreted the scope of Section 349 of the New York General
Business Law. Judge Wicks found that in Himmelstein, the New York
Court of Appeals emphasized that the New York state legislature
sought "to ensure the broadest enforcement of [GBL Section 349],"
and that "Section 349, on its face, applies to virtually all
economic activity." According to Himmelstein, the "text and
purpose" of GBL Section 349 supports the notion that "an act or
practice is consumer-oriented when it has 'a broader impact on
consumers at large.'"
A full-text copy of the Order dated March 30, 2023, is available
https://tinyurl.com/6accbj6x from Leagle.com.
HAVERTY FURNITURE: Fails to Pay Merchandisers' Wages Under FLSA
---------------------------------------------------------------
Juan Molina Ramirez v. Haverty Furniture Companies, Inc., Case No.
3:23-cv-00778-N (N.D. Tex., Apr. 12, 2023) is a class action
seeking to recover unpaid wages and other damages owed under the
Fair Labor Standards Act.
During his employment with the Defendant, the Plaintiff regularly
worked an average of 30 hours per week without receiving full
compensation as required by federal law. As its regular practice,
the Defendant would fail to pay the Plaintiff any amounts for 2-3
hours of work the Plaintiff performed each week, the lawsuit
alleges.
The Plaintiff brings this complaint as a collective action, on
behalf of all current and former Haverty Furniture employees who
were not paid the minimum wage for each hour they worked, within
three (3) years from the commencement of this action up to the
present.
The Plaintiff is similarly situated to the putative Plaintiffs with
regards to his job duties. They were subject to Defendant's common
practice, policy, or plan of refusing to pay employees their
correct earned wages in violation the FLSA. The Plaintiff and the
putative plaintiffs were victims of a common policy or plan that
violated the law.
The Plaintiff worked at Haverty Furniture from September 12, 2002
until June 2, 2022. At all times, he was a merchandiser.
Havertys is a specialty retailer of residential furniture and
accessories.[BN]
The Plaintiff is represented by:
James M. Dore, Esq.
JUSTICIA LABORAL LLC
6232 N. Pulaski, No. 300
Chicago, IL 60646
Telephone: (773) 415-4898
E-mail: jdore@justicialaboral.com
LIMANI 51 LLC: Fails to Pay Proper Wages, Ajala Suit Alleges
------------------------------------------------------------
MALIK AJALA, individually and on behalf of all others similarly
situated, Plaintiff v. LIMANI 51, LLC, d/b/a LIMANI; ESTIATORIO
LIMANI LLC d/b/a LIMANI; and CHRISTOS SPYROPOULOS. Case No.
153433/2023 (N.Y. Sup., New York Cty., April 14, 2023) is an action
against the Defendant for failure to pay minimum wages, overtime
compensation, provide meals and rest periods, and provide accurate
wage statements.
Plaintiff Ajala was employed by the Defendants as a kitchen staff.
LIMANI 51, LLC, d/b/a LIMANI: owns and operates two restaurants
under the trade name "Limani" at New York. [BN]
The Plaintiff is represented by:
C.K. Lee, Esq.
LEE LITIGATION GROUP, PLLC
C.K. Lee, Esq.
148 West 24th Street, 8th Floor
New York, NY 10011
Telephone: (212) 465-1188
Facsimile: (212) 465-1181
MARYLAND: Gibson Appeals Denial of Bid to Amend Judgment in Suit
----------------------------------------------------------------
LOIS ANN GIBSON, et al. are taking an appeal from a court judgment
in their lawsuit entitled Lois Ann Gibson, et al., individually and
on behalf of all others similarly situated, Plaintiffs, v.
FREDERICK COUNTY, MARYLAND, et al., Defendants, Case No.
1:22-cv-01642-SAG, in the U.S. District Court for the District of
Maryland.
As previously reported in the Class Action Reporter, the Plaintiffs
filed this putative class action against the Defendants for alleged
voting fraud in Maryland during the 2020 federal election.
The case seeks to investigate the pattern of alleged fraud during
the 2020 federal election, particularly in three counties in
Maryland, and attempts to invoke the power of the court to correct
the corrupted voting system. The Plaintiffs request a temporary
restraining order to protect all evidence and related documents
from destruction; and permission to immediately conduct several
depositions, says the suit.
The Defendants filed motions to dismiss the case for failure to
state a claim. On December 16, 2022, the Court granted the
Defendants' motions to dismiss on the basis that the Plaintiffs
lacked standing.
On January 13, 2023, the Plaintiffs filed a motion to alter or
amend judgment under Rule 59(e) of the Federal Rules of Civil
Procedure. The Defendants have filed responses in opposition to the
Plaintiffs' motion.
On Mar. 29, 2023, the Court denied the Plaintiffs' motion to amend
judgment through an Order entered by Judge Stephanie A. Gallagher.
The Court ruled that the Plaintiffs have no concrete injury-in-fact
and lack standing to sue.
The appellate case is captioned Lois Gibson v. State of Maryland,
Case No. 23-1369, in the United States Court of Appeals for the
Fourth Circuit, filed on April 6, 2023. [BN]
Plaintiffs-Appellants LOIS ANN GIBSON, et al., individually and on
behalf of all others similarly situated, are represented by:
Walter T. Charlton, Esq.
P.O. Box 370
Woodsboro, MD 21798
Defendants-Appellees THE STATE OF MARYLAND, et al., are represented
by:
Daniel Michael Kobrin, Esq.
OFFICE OF THE ATTORNEY GENERAL OF MARYLAND
200 Saint Paul Place
Baltimore, MD 21202
Telephone: (410) 576-6472
- and -
Wendy Lozinsky Shiff, Esq.
OFFICE OF THE ATTORNEY GENERAL OF MARYLAND
200 St. Paul Place
Baltimore, MD 21202
Telephone: (410) 576-6996
MATRIX WARRANTY: Appeals Court Order in Mey TCPA Suit to 4th Cir.
-----------------------------------------------------------------
MATRIX WARRANTY SOLUTIONS, INC., et al. are taking an appeal from a
court order in the lawsuit entitled Diana Mey, individually and on
behalf of all others similarly situated, Plaintiff, v. Matrix
Warranty Solutions, Inc., et al., Defendants, Case No.
5:21-cv-00062-JPB-JPM, in the U.S. District Court for the Northern
District of West Virginia.
As previously reported in the Class Action Reporter, the lawsuit
alleges that the Defendants violated the Telephone Consumer
Protection Act for Restrictions of Use of Telephone Equipment.
The appellate case is captioned Matrix Warranty Solutions, Inc. v.
Diana Mey, Case No. 23-151, in the United States Court of Appeals
for the Fourth Circuit, filed on April 6, 2023. [BN]
Plaintiff-Respondent DIANA MEY, individually and on behalf of all
others similarly situated, is represented by:
Ryan McCune Donovan, Esq.
Andrew Carver Robey, Esq.
HISSAM FORMAN DONOVAN RITCHIE PLLC
P.O. Box 3983
Charleston, WV 25339
Telephone: (681) 265-3802
Defendants-Petitioners MATRIX WARRANTY SOLUTIONS, INC., et al., are
represented by:
Joseph Paul Bowser, Esq.
ROTH JACKSON GIBBONS CONDLIN, PLC
1519 Summit Avenue
Richmond, VA 23230
Telephone: (804) 441-8701
- and -
Gordon Harrison Copland, Esq.
STEPTOE & JOHNSON PLLC
400 White Oaks Boulevard
Bridgeport, WV 26330
Telephone: (304) 933-8162
- and -
Carl Taylor Smith, Esq.
ROTH JACKSON GIBBONS CONDLIN, PLC
1519 Summit Avenue
Richmond, VA 23230
Telephone: (804) 729-4440
- and -
Kristen Andrews Wilson, Esq.
STEPTOE & JOHNSON PLLC
1324 Chapline Street
Wheeling, WV 26003
Telephone: (304) 231-0444
MEDICAL PROPERTIES: Faces Sward Suit Over 8.7% Stock Price Drop
---------------------------------------------------------------
DANIEL SWARD, individually and on behalf of all others similarly
situated v. MEDICAL PROPERTIES TRUST, INC., EDWARD K. ALDAG, JR.,
and R. STEVEN HAMNER, Case No. 1:23-cv-03070 (S.D.N.Y., Apr. 12,
2023) is a class action on behalf of persons and entities that
purchased or otherwise acquired MPT securities between March 1,
2022 and February 22, 2023, inclusive, pursuant to the Securities
Exchange Act of 1934.
As of December 31, 2021, Prospect was MPT's third largest tenant,
representing 7.3% of its total assets. As a tenant, Prospect is
required to pay all ongoing operating expenses of the facility and
for any desired expenditures.
On February 23, 2023, before the market opened, MPT issued a press
release announcing its fourth quarter and full year 2022 financial
results. Therein, MPT disclosed an impairment of about $171 million
on four properties leased to Prospect as well as a write off of
$112 million in unbilled rent for the same client.
On this news, the Company's stock price fell $0.80, or 8.7%, to
close at $11.14 per share on February 23, 2023, thereby injuring
investors.
Throughout the Class Period, the Defendants made materially false
and/or misleading statements, as well as failed to disclose
material adverse facts about the Company's business, operations,
and prospects. Specifically, Defendants failed to disclose to
investors that Prospect was facing significant pressures affecting
the profitability of its Pennsylvania properties, says the suit.
MPT operates as a real estate investment trust (REIT) that leases
its facilities under long-term leases to providers of healthcare
services, such as operators of general acute care hospitals,
behavioral health facilities, inpatient physical rehabilitation
facilities, long-term acute care hospitals, and freestanding
ER/urgent care facilities.[BN]
The Plaintiff is represented by:
Gregory B. Linkh, Esq.
Robert V. Prongay, Esq.
Charles H. Linehan, Esq.
Pavithra Rajesh, Esq.
GLANCY PRONGAY & MURRAY LLP
230 Park Ave., Suite 358
New York, NY 10169
Telephone: (212) 682-5340
Facsimile: (212) 884-0988
E-mail: glinkh@glancylaw.com
- and -
Frank R. Cruz, Esq.
THE LAW OFFICES OF FRANK R. CRUZ
1999 Avenue of the Stars, Suite 1100
Los Angeles, CA 90067
Telephone: (310) 914-5007
MENZIES AVIATION: Filing of Class Cert Bid Due May 8
----------------------------------------------------
In the class action lawsuit captioned as DORA PATRICIA AMAYA, an
individual; and BRAYAN LOZANO GONZALEZ, an individual; on behalf of
themselves and others similarly situated, v. MENZIES AVIATION
(USA), INC., a Delaware corporation; and DOES 1 through 10,
inclusive, Case No. 2:22-cv-05915-MCS-MAR (C.D. Cal.), Hon. Judge
Mark S. Scarsi entered an order revising the December 16, 2022
Scheduling Order, as follows:
Event Date
-- Deadline to File a Motion for May 8, 2023
Class Certification
-- Deadline to File an Opposition to May 30, 2023
The Motion for Class Certification
-- Deadline to File a Reply in Support June 20, 2023
Of the Motion for Class Certification
-- Hearing Date on Motion for Class July 10, 2023
Certification
Menzies Aviation was founded in 2000. The company's line of
business includes arranging passenger transportation such as
airline and bus ticket offices.
A copy of the Court's order dated March 30, 2023 is available from
PacerMonitor.com at https://bit.ly/41iacai at no extra charge.[CC]
MISSISSIPPI BEHAVIORAL: Must Respond to Amended Complaint by May 26
-------------------------------------------------------------------
In the class action lawsuit captioned as JAQUAY JACKSON, ET AL., V.
MISSISSIPPI BEHAVIORAL HEALTH SERVICES, LLC Case No.
3:22-cv-00697-CWR-LGI (S.D. Miss.), Hon. Judge LaKeysha Greer Isaac
entered an order:
-- The deadline to file any motions to April 27, 2023
amend the pleadings or to join
additional parties is:
-- The deadline for Defendants to respond May 26, 2023
to Plaintiffs' amended complaint, if any,
is:
A copy of the Court's order dated March 30, 2023 is available from
PacerMonitor.com at https://bit.ly/40YbBmp at no extra charge.[CC]
MYLAN NV: Summary Judgment Bid Granted in Securities Litigation
---------------------------------------------------------------
Judge J. Paul Oetken of the U.S. District Court for the Southern
District of New York grants the motion for summary judgment filed
by Mylan N.V. in the case captioned as In re Mylan N.V. Securities
Litigation, Case No. 16-CV-7926 (JPO) (S.D.N.Y.).
The case is a securities fraud class action against Mylan N.V. and
several of its current and former officers. The liability theory
advanced by the Plaintiffs reflects "claims within claims" -- that
the Plaintiffs misled investors by obscuring underlying violations
of antitrust law and regulatory law. The Plaintiffs offer three
such claims: one alleging that Mylan's statements to investors
became misleading due to its antitrust violations in marketing the
EpiPen; the second based on the theory that Mylan misled investors
about its statutory rebating practices; and the third alleging that
Mylan's statements to investors about the generic drug market were
misleading due to its participation in an antitrust conspiracy in
the generics market.
In their motion for summary judgment, the Defendants first
challenge the existence of a predicate statutory violation of
either the Sherman Act or the Medicare Drug Rebate Program statute.
Second, they argue that even if such a violation did exist, summary
judgment would still be appropriate for want of scienter, a showing
of materiality, or loss causation. The Plaintiffs also move for
partial summary judgment as to their MDRP-related claims, seeking a
judgment that (1) Mylan did misclassify the EpiPen for drug rebate
purposes; (2) this was omitted in Mylan's disclosures and was
material; and (3) Mylan acted with the requisite scienter that it
was violating the MDRP in so doing.
The Court has previously dismissed the Plaintiffs' generic drug
allegations for failing to meet the evidentiary standards required
by. . . the Sherman Act. The Court previously held that, to survive
at summary judgment, the Plaintiffs must demonstrate that Mylan
violated the Sherman Act in a manner also satisfying the elements
of a securities fraud claim -- including loss causation and
scienter -- for each individual generic drug challenged.
The Court finds that the Plaintiffs' securities fraud claim
premised on an underlying exclusive dealing violation of Section 2
of the Sherman Act -- this claim fails for lack of scienter, even
if the Plaintiffs had a stronger case on the substantive antitrust
portion of their claim.
The Court points out that the Plaintiffs has failed to show "that
new information about Mylan moved the market in excess of
previously known information" considering the fact of an
investigation into Mylan was public information before the class
period. The Court explains that "Loss causation does not refer to
'anything that goes wrong' with a stock. Rather, it is essential
that a plaintiff "disaggregate" loss causation arguments in order
for courts to credit them, lest all connection with causality fly
out the window in a controversial industry." Accordingly, the
Plaintiffs' failure to "disaggregate" the losses stemming from a
variety of different drugs is a failure to satisfy their summary
judgment burden on loss causation -- Disaggregation is a threshold
evidentiary showing that a plaintiff must meet to withstand summary
judgment.
The Court explains that "the Plaintiffs fail to establish a
sufficiently substantial impact on competition. First, the
Plaintiffs concede that, at the very most, Auvi-Q was 'not covered'
only for 19% of privately insured patients in Q3 2014, 29% in Q3
2014, and 16% in Q3 215, and that, by 2015, Auvi-Q had 80%
acceptance overall. This is not substantial foreclosure under any
standard. And there is no evidence in the record to support any
coercion. Moreover, the Plaintiffs concede by silence that these
contracts were generally pro-competitive. And the novel expert
testimony that the Plaintiffs adduce here -- that of Dr. Ingberman
-- is stronger for the Defendants than the Plaintiffs, because even
Dr. Ingberman acknowledged the factual reality that the PBMs could
and did use the PBM contracts' short duration and easy
terminability to renegotiate key terms and generate competition
between Sanofi and Mylan -- all because the PBMs were obviously
'prepared to exclude EpiPen,' the source of their leverage."
A full-text copy of the Opinion and Order dated March 30, 2023, is
available https://tinyurl.com/2vx7ykcs from Leagle.com.
NIKE INC: Cahill Appeals Class Cert. Bid Denial to 9th Cir.
-----------------------------------------------------------
KELLY CAHILL, et al. are taking an appeal from a court order
denying their motion to certify class in the lawsuit entitled Kelly
Cahill, et al., individually and on behalf of all others similarly
situated, Plaintiffs, v. Nike, Inc., Defendant, Case No.
3:18-cv-01477-JR, in the U.S. District Court for the District of
Oregon.
As previously reported in the Class Action Reporter, the Plaintiffs
brought this complaint against the Defendant for alleged wage rate
discrimination based on gender in violation of the Equal Pay Act.
The Plaintiffs allege in the complaint that the Defendant pays and
promotes women less than men at Nike Headquarters. The gender
disparities occurred, and continue to occur, because of specific
employment policies or practices that are developed and carried out
in a workplace that is hostile towards women and where the ultimate
arbiters of these policies or practices are a small group of
high-level executives who are majority male, asserts the
complaint.
On Jan. 10, 2022, the Plaintiffs filed a motion for class
certification, which the Court denied through an Order entered by
Judge Marco A. Hernandez on Mar. 21, 2023.
The appellate case is captioned Kelly Cahill, et al v. Nike, Inc.,
Case No. 23-80027, in the United States Court of Appeals for the
Ninth Circuit, filed on April 5, 2023. [BN]
Plaintiffs-Petitioners KELLY CAHILL, et al., on behalf of
themselves and all others similarly situated, are represented by:
Craig Justin Ackermann, Esq.
ACKERMANN & TILAJEF, PC
315 South Beverly Drive, Suite 504
Beverly Hills, CA 90212
Telephone: (310) 277-0614
- and -
India Bodien, Esq.
INDIA LIN BODIEN, ATTORNEY AT LAW
2252 North Proctor Street, Number 387
Tacoma, WA 98406
Telephone: (253) 212-7913
- and -
Brian Walter Denlinger, Esq.
ACKERMANN & TILAJEF, P.C.
2602 North Proctor Street, Suite 205
Tacoma, WA 98406
Telephone: (563) 542-3309
- and -
Barry L. Goldstein, Esq.
GOLDSTEIN, BORGEN, DARDARIAN & HO
300 Lakeside Drive
Oakland, CA 94612
Telephone: (510) 763-9800
- and -
Laura L. Ho, Esq.
James Kan, Esq.
GOLDSTEIN, BORGEN, DARDARIAN & HO
155 Grand Avenue, Suite 900
Oakland, CA 94612
Telephone: (510) 763-9800
- and -
David Benjamin Markowitz, Esq.
Harry B. Wilson, Esq.
MARKOWITZ HERBOLD, PC
1455 SW Broadway, Suite 1900
Portland, OR 97201
Telephone: (503) 295-3085
Defendant-Respondent NIKE, INC. is represented by:
Felicia Davis, Esq.
Daniel Prince, Esq.
PAUL HASTINGS, LLP
515 S. Flower Street, 25th Floor
Los Angeles, CA 90071
Telephone: (213) 683-6120
(213) 683-6169
- and -
Zachary P. Hutton, Esq.
PAUL HASTINGS, LLP
101 California Street, 48th Floor
San Francisco, CA 94111
Telephone: (415) 856-7000
- and -
Laura E. Rosenbaum, Esq.
STOEL RIVES, LLP
760 SW 9th Avenue, Suite 3000
Portland, OR 97205
Telephone: (503) 224-3380
PACIFIC GRAIN: Salcedo Must File First Amended Complaint
--------------------------------------------------------
In the class action lawsuit captioned as SANDRA L. SALCEDO, v.
PACIFIC GRAIN & FOODS, LLC, Case No. 1:22-cv-00640-ADA-SAB (E.D.
Cal.), Hon. Judge Stanley A. Boone entered an order that:
1. The parties' stipulated request for Plaintiff to file a first
amended complaint is granted.
2. The Plaintiff shall file the proposed first amended complaint
no
later than ten days after entry the order.
3. The Plaintiff shall file the proposed motion for preliminary
approval no later than May 24, 2023.
4. The Plaintiff's initial class certification motion and
anticipated motion to strike answer (which was never filed)
are
rendered moot, and the April 26, 2023, hearing on the motions
is
vacated.
The Plaintiff initiated this putative class action on May 27, 2022.
On November 1, 2022, the Plaintiff filed a motion to certify a
class.
The hearing on the class certification motion was originally set
for December 12, 2022, but was continued multiple times pursuant to
party stipulation. The Defendant answered on November 18, 2022.
On December 9, 2022, the parties filed a stipulation in which they
proffered Plaintiff intended to file a motion to strike the
Defendant's answer as untimely, the parties were attending
mediation around March 20, 2023, and the parties requested to
continue the hearing on Plaintiff's class certification motion and
the anticipated motion to strike the answer to approximately 30
days after the March 20, 2023, mediation.
The Court granted this stipulation and continued the hearing on the
Plaintiff's class certification motion and motion to strike
Defendant's answer. The hearing on these motions is currently set
for April 26, 2023.
On March 27, 2023, the parties filed a stipulated request for
Plaintiff to file an amended complaint. The parties proffer they
attended mediation and agreed to narrow the class definition in
Plaintiff's putative class action by settling the action as to the
Nut House facility employees and proceeding on claims as to the Nut
House facility workers only. The parties request leave for
Plaintiff to file the attached proposed amended complaint.
Pacific Grain is a family-owned dry, bulk ingredient supplier and
private label packager of organic and conventional dry beans.
A copy of the Court's order dated March 30, 2023 is available from
PacerMonitor.com at https://bit.ly/3zQRtGY at no extra charge.[CC]
PRESTAMOS CDFI: Court Narrows Marshall's Breach of Contract Claims
------------------------------------------------------------------
Judge John M. Gallagher of the U.S. District Court for the Eastern
District of Pennsylvania grants in part the motion to dismiss filed
by Defendants Prestamos CDFI, LLC, and Chicanos Por La Causa, Inc.,
in the case captioned as ALICIA MARSHALL, et al., Plaintiffs v.
PRESTAMOS CDFI, LLC, Defendant, Civil No. 5:21-cv-04337-JMG (E.D.
Pa.).
Named Plaintiffs bring this action individually and on behalf of a
National Class, California Subclass, Illinois Subclass, and Ohio
Subclass, of persons and entities who applied for Paycheck
Protection Program loans with Defendant Prestamos CDFI, LLC in 2021
"for whom the U.S. Small Business Administration provided an SBA
loan number, who executed their Loan Documents, but did not receive
the PPP loan proceeds."
Named Plaintiffs filed their initial class action complaint against
Defendant Prestamos. Thereafter, the Plaintiff added Defendant
Chicanos Por La Causa, Inc.
The Defendants seek dismissal on numerous grounds: that Plaintiffs
lack standing to bring their claims, Plaintiffs' claims are barred
by the Coronavirus Aid, Relief and Economic Security Act (CARES
Act), the second amended complaint fails to state a claim for
breach of contract, all Plaintiffs' claims are barred by the terms
of the Promissory Notes signed by Plaintiffs, the second amended
complaint fails to state a claim for violation of the California
Unfair Competition Law, the Illinois Consumer Fraud and Deceptive
Business Practices Act, and the Ohio Deceptive Trade Practices Act,
and the second amended complaint fails to state a claim for unjust
enrichment. Defendants also move for dismissal of all claims
against Defendant CPLC, arguing that the second amended complaint
fails to allege an alter ego relationship that could subject CPLC
to personal jurisdiction or liability.
The Court finds that the Plaintiffs adequately plead the
"injury-in-fact" standing requirement and declines to dismiss the
Plaintiffs' second amended complaint for lack of standing. However,
the Court agrees with the Defendants' contention that the
Plaintiffs' breach of contract and unjust enrichment claims should
be dismissed for lack of standing to the extent they are brought on
behalf of a nationwide class consisting of class members and claims
under the laws of states in which the Plaintiffs do not reside or
were never injured. Accordingly, the Court, although finding Named
Plaintiffs have standing, dismisses Plaintiffs' claims to the
extent they arise in states where no Named Plaintiff
resides/resided or was injured.
The Court does not find the Plaintiffs' state law claims are
precluded by the CARES Act. To the extent Plaintiffs' state law
claims allegedly incorporate Prestamos' CARES Act obligations, the
Court rules that dismissal at this stage is improper, as the Third
Circuit has noted in the case styled Bukowski v. Wells Fargo Bank,
N.A., 757 Fed. Appx. 124, 128-29 (3d Cir. 2018), "the absence of a
private right of action from a federal statute provides no reason
to dismiss a claim under a state law just because it refers to or
incorporates some element of the federal law."
Moreover, the Court finds that the second amended complaint fails
to state: "(a)that a legal remedy is inadequate, as Plaintiffs
assert their UCL claim for equitable relief 'in the alternative and
to the extent that their breach of contract claim fails to
adequately award their damages;' (b) a claim for violation of the
Illinois Consumer Fraud and Deceptive Business Practices Act
against Prestamos. . . because Plaintiff Ahmadou's ICFA claims
'rest on the same factual foundation' as Plaintiffs' breach of
contract claims, 'no distinct deceptive acts are alleged;' (c)
Prestamos made knowing misrepresentations to induce Plaintiff
Ahmadou and the Illinois Sublcass to enter into a contract; (d) a
claim for violation of the Ohio Deceptive Trade Practices Act
against Prestamos -- Plaintiff Stalnaker fails to allege any
independently tortious conduct, but rather recasts Plaintiffs'
breach of contract claims and ODTPA claims -- it does not allege
Prestamos "induced and bound [Plaintiff Stalnaker] and other Ohio
borrowers to enter into the Loan Documents without intending to
perform."
The Court denies without prejudice the Defendants' motion to
dismiss CPLC because jurisdictional discovery is warranted to
determine whether the Court has personal jurisdiction over
Defendant CPLC. Pursuant to the Court's dismissal of Defendants'
Motion to Dismiss the Second Amended Complaint against CPLC without
prejudice pending jurisdictional discovery, the Defendants' Motion
to Dismiss Count One for Breach of Contract and Count Five for
Unjust Enrichment as to CPLC is denied without prejudice.
A full-text copy of the Memorandum Opinion dated March 30, 2023, is
available https://tinyurl.com/bddxhfdv from Leagle.com.
QUALITY CARRIERS: Court Issues Final Judgment in Salter Class Suit
------------------------------------------------------------------
Judge John F. Walter of the U.S. District Court for the Central
District of California issued a Final Approval Order and Final
Judgment granting motion for final approval of class action
settlement and certification of settlement class in the lawsuit
styled CLAYTON SALTER, individually, and on behalf of all others
similarly situated, Plaintiff v. QUALITY CARRIERS INC., an Illinois
Corporation; QUALITY DISTRIBUTION, INC., a Florida Corporation,
Defendants, Case No. 2:20-cv-00479-JFW-JPRx (C.D. Cal.).
Judge Walter notes that all terms used here will have the same
meaning as given them in the parties' Joint Stipulation of
Settlement and Release of Class Action.
The Court has jurisdiction over all claims asserted in the Action,
Plaintiff Clayton Salter, Class Members and Defendants Quality
Carriers, Inc., and Quality Distribution, Inc.
The Court certifies and binds the following Class Members and
Class, for settlement purposes only:
All current and former truck drivers who, either
individually or through a business entity, entered into an
Independent Contractor Agreement with Quality Carriers,
Inc., and who performed delivery services under Quality
Carriers, Inc.'s federal motor carrier operating authority,
out of a terminal located in California at any time during
the period from Oct. 3, 2015, through Jan. 4, 2023 (Class
Period).
The Court also binds the State of California as to the following
PAGA Members:
All Settlement Class Members that worked for Defendants
during the period from Oct. 3, 2018, through Jan. 4, 2023
(PAGA Period).
Distribution of the Class Notice directed to the Class Members as
set forth in the Settlement Agreement has been completed in
conformity with the Court's Order Granting Preliminary Approval of
Class Action Settlement and Certification of Settlement Class
("Preliminary Approval Order"), including individual notice to all
Settlement Class Members identified by the Defendants' records and
the best practicable notice under the circumstances. No Class
Members have opted out of or objected to the Settlement.
The Court finds that the Settlement was entered into in good faith
and has been reached as a result of serious and non-collusive
arm's-length negotiations between the Plaintiff and the Defendants.
The Court further finds that the Plaintiff has satisfied the
standards and applicable requirements for final approval of the
Settlement under Rule 23 of the Federal Rules of Civil Procedure.
Judge Walter approves the Settlement and finds that the Settlement
is fair, reasonable, and adequate as to all Class Members, and
directs the Parties to effectuate the Settlement according to its
terms and provisions, and in compliance with this Final Approval
Order and Final Judgment.
Upon entry of this Final Approval Order and Final Judgment, and in
consideration for Defendants' payment of the Gross Settlement
Amount, the Plaintiff and each member of the Settlement Class will
be deemed to have fully and finally, and forever released the
Released Parties from all Released Class Claims set forth in the
Settlement Agreement.
The State of California, by and through the Plaintiff, who is a
PAGA Representative, will have, by operation of this Final Approval
Order and Final Judgment, fully, finally and forever released,
relinquished, and discharged Released Parties from all Released
PAGA Claims set forth in the Settlement Agreement.
The Settlement is not an admission by the Defendants of the merits
of any claim in the Action or of any wrongdoing.
The Court certifies as Class Counsel, Taras Kick and Greg Taylor of
The Kick Law Firm, and Matt Wessler and Jennifer Bennett of Gupta
Wessler PLLC.
The Court approves the Gross Settlement Amount, as set forth in the
Settlement Agreement, of Three Million Dollars and Zero Cents
($3,000,000).
The Court orders the Settlement Administrator, Simpluris, Inc.
("Simpluris"), to distribute the Gross Settlement Amount including
Individual Settlement Payments to the Settlement Class in
accordance with the terms of the Settlement Agreement.
Under the terms of the Settlement, and after consideration of the
authorities, evidence, and argument set forth in the Motion for
Final Approval, the Court grants an award to Class Counsel of
attorneys' fees in the amount of $1,000,000, which is less than
Class Counsel's actual lodestar in this matter. The Court also has
reviewed the costs and expenses of $35,491.23 by Class Counsel in
prosecution of this matter and finds they were to the benefit of
the prosecution of the case and reasonable and approves them.
The Court further approves the payment of $5,100 to Simpluris for
Settlement Administration Costs and orders this payment to be made
in accordance with the Settlement Agreement.
The Court further approves the payment of $15,000 to Plaintiff
Clayton Salter for his Class Representative Service Award, and
orders this payment to be made in accordance with the terms of the
Settlement Agreement.
The Court further approves the PAGA Penalties amount, which will
constitute $150,000, and orders payment to be made to the Labor and
Workforce Development Agency ("LWDA") and the PAGA Members in
accordance with the terms of the Settlement Agreement.
Judge Walter approves the plan for transferring uncashed Individual
Class Payment and Individual PAGA Payment checks to the parties'
proposed cy pres recipients, 50% to Public Citizen Foundation and
50% to Bet Tzedek, after the parties have informed the Court of the
amount of uncashed checks. If a Class Member fails to receive or
cash his or her Individual Class Payment check or Individual PAGA
Payment, then the affected Class Member will be deemed bound to the
Settlement, nonetheless.
The Parties will bear their own respective attorneys' fees and
costs, except as otherwise provided for in this Order or in the
Settlement Agreement and as later approved by the Court.
Within thirty (30) calendar days of the date of the Effective Date
of the Settlement, as set forth in the Settlement Agreement, the
Defendants will distribute the Gross Settlement Amount to the
Settlement Administrator according to the terms of the Settlement
Agreement.
The Court will have and retain continuing jurisdiction over the
Action and over all Parties and the Settlement Class to the fullest
extent necessary solely to address, enforce, and effectuate the
terms of the Settlement and this Final Approval Order and Final
Judgment to enforce the terms of the Settlement and this Final
Approval Order and Final Judgment.
If the Settlement does not become final and effective in accordance
with its terms, this Final Approval Order and Final Judgment will
be vacated and will be of no further force or effect.
A full-text copy of the Court's Final Approval Order and Final
Judgment dated March 27, 2023, is available at
https://tinyurl.com/2p8fntkx from Leagle.com.
REALPAGE INC: Bauman Suit Alleges Housing Lease Monopoly
--------------------------------------------------------
JOHN BAUMAN, individually and on behalf of all others similarly
situated, Plaintiff v. REALPAGE, INC.; THOMA BRAVO, L.P.; APARTMENT
INCOME REIT CORP.; PARK TOWNE PLACE APARTMENT HOMES; STERLING
APARTMENT HOMES; GREYSTAR REAL ESTATE PARTNERS LLC; LINCOLN
PROPERTY COMPANY; CUSHMAN & WAKEFIELD, INC.; ASSET LIVING, LLC; FPI
MANAGEMENT, INC.; APARTMENT MANAGEMENT CONSULTANTS, LLC; RPM
LIVING, LLC; BH MANAGEMENT SERVICES, LLC; WINNCOMPANIES, LLC; MID
AMERICA APARTMENT COMMUNITIES, INC.; ALLIANCE RESIDENTIAL REALTY,
LLC; MORGAN PROPERTIES, LLC; CORTLAND PARTNERS, LLC; AVENUE5
RESIDENTIAL, LLC; BOZZUTO MANAGEMENT COMPANY; AVALONBAY
COMMUNITIES, INC.; HIGHMARK RESIDENTIAL, LLC; EQUITY RESIDENTIAL;
ESSEX PROPERTY TRUST, INC.; ZRS MANAGEMENT, LLC; CAMDEN PROPERTY
TRUST, UDR, INC.; CONAM MANAGEMENT CORPORATION; SARES REGIS GROUP
COMMERCIAL, INC.; MISSION ROCK RESIDENTIAL, LLC; CWS APARTMENT
HOMES LLC; AMLI MANAGEMENT COMPANY; SECURITY PROPERTIES INC.;
THRIVE COMMUNITIES MANAGEMENT, LLC; MORGAN GROUP INC.; and
PROMETHEUS REAL ESTATE GROUP, INC., Defendants, Case No.
3:23-cv-00326 (M.D. Tenn., April 13, 2023) alleges violation of the
Sherman Act, and seeks to recover damages as well as injunctive
relief barring the Defendants from using Yieldstar software, or any
other form of rental pricing software.
The Plaintiff alleges in the complaint that the Defendants are
cartel among lessors of multifamily residential real estate leases
which resulted in artificially inflating the prices of multifamily
residential real estate in the United States above competitive
levels.
Specifically, RealPage was increasing prices throughout the
residential real estate pricing market, it was engaging in
activities to artificially depress the supply of available units.
During an earnings call in 2017, RealPage founder Steve Winn,
discussed the profitability of raising rents while leaving some
apartments vacant. This strategy would only push rents higher,
costing the average tenant while unlawfully enriching the
Defendants and co-conspirators, says the suit.
REALPAGE, INC. provides products and services to the multifamily
real estate industries. The Company offers applicant screening,
accounting, budgeting, property management, and compliance
reporting solutions. RealPage also develops and delivers
proprietary web-based applications that enhance client information
management capabilities. [BN]
The Plaintiff is represented by:
J. Gerard Stranch IV, Esq.
STRANCH, JENNINGS & GARVEY PLLC
223 Rosa L. Parks Avenue, Ste. 200
Nashville, TN 37203
Telephone: (615) 254-8801
Facsimile: (615) 255-5419
Email: gstranch@stranchlaw.com
- and -
Gerald J. Rodos, Esq.
Jeffrey A. Barrack, Esq.
Andrew J. Heo, Esq.
BARRACK, RODOS & BACINE
2001 Market Street, Ste. 3300
Philadelphia, PA 19103
Telephone: (215) 963-0600
Facsimile: (215) 963-0838
Email: grodos@barrack.com
jbarrack@barrack.com
aheo@barrack.com
- and -
Stephen R. Basser, Esq.
Sam M. Ward, Esq.
BARRACK, RODOS & BACINE
600 West Broadway, Ste. 900
San Diego, CA 92101
Telephone: (619) 230-0800
Facsimile: (619) 230-1874
Email: sbasser@barrack.com
sward@barrack.com
- and -
Bruce W. Steckler, Esq.
STECKLER WAYNE & LOVE PLLC
12720 Hillcrest Road, Ste. 1045
Dallas, TX 75230
Telephone: (972) 387-4040
Facsimile: (972) 387-4041
Email: bruce@swclaw.com
REDWIRE CORP: Bid to Dismiss Exchange Act Class Suit Nixed
----------------------------------------------------------
Redwire Corporation disclosed in its Form 10-K Report for the
fiscal period ending December 31, 2022 filed with the Securities
and Exchange Commission on March 31, 2023, that the United States
District Court for the Middle District of Florida denied the
defendants' move to dismiss the Exchange Act-related class suit.
On December 17, 2021, the Company, its CEO, Peter Cannito, and, its
CFO, William Read, were named as defendants in a putative class
action complaint filed in the United States District Court for the
Middle District of Florida. In the complaint, the plaintiff alleges
that the Company and certain of its directors and officers made
misleading statements and/or failed to disclose material facts
about the Company's business, operations, and prospects, allegedly
in violation of Section 10(b)) and Rule 10b-5 promulgated
thereunder) and Section 20(a) of the Exchange Act.
As relief, the plaintiffs are seeking, among other things,
compensatory damages. The defendants believe the allegations are
without merit and intend to defend the suit vigorously.
On August 16, 2022, the defendants moved to dismiss the complaint
in its entirety, and such motion was denied by the Court on March
22, 2023.
Redwire Corporation is into critical space solutions and components
based in Texas.
RESORT SALES: Has Made Unsolicited Calls, Beardsley Alleges
-----------------------------------------------------------
BRIAN BEARDSLEY, individually and on behalf of all others similarly
situated, Plaintiff v. RESORT SALES BY SPINNAKER, INC.; RESORT
SALES MISSOURI, INC.; and JOHN DOE CORPORATION, Defendants, Case
No. 1:23-cv-10793-ADB (D. Mass., April 13, 2023) seeks to stop the
Defendants' practice of making unsolicited calls.
RESORT SALES BY SPINNAKER, INC. is engaged in the resort hotel
business. [BN]
The Plaintiff is represented by:
Anthony I. Paronich, Esq.
PARONICH LAW, P.C.
350 Lincoln St., Suite 2400
Hingham, MA 02043
Telephone: (617) 485-0018
Email: anthony@paronichlaw.com
SALTY DOG: Fails to Pay Dishwashers' Minimum, OT Wages Under FLSA
-----------------------------------------------------------------
Antonio Ramales Bonilla, on behalf of himself and others similarly
situated in the proposed FLSA Collective Action v. Salty Dog Rest.
Ltd, Robert Fadel, Steven Fadel, and George Kabbez, Case No.
1:23-cv-03076 (S.D.N.Y., Apr. 12, 2023) seeks injunctive and
declaratory relief and unpaid minimum wages, overtime wages,
spread-of-hours, unlawfully deducted wages, liquidated and
statutory damages, pre- and post-judgment interest, and attorneys'
fees and costs pursuant to the Fair Labor Standards Act, the New
York State Labor Law, and the NYLL's Wage Theft Prevention Act.
From January 2005 to, through and including December 2019, the
Plaintiff worked six days per week, for a total period of 72 hours
during each of the weeks, respectively, and was paid $10 per hour,
for all hours worked. From January 2020 to, through and including
January 2023, the Plaintiff worked five days per week, for a total
period of 65 hours during each of the weeks, respectively, and was
paid a flat salary of $700 per week, regardless of how many hours
he worked each week, the suit says.
Additionally, no notification, either in the form of posted
notices, or other means, was ever given to the Plaintiff regarding
wages are required under the FLSA or NYLL, asserts the suit.
Plaintiff Bonilla was employed as a dishwasher and porter at Salty
Dog Bar & Restaurant from January 2005 to, through and including
January 2023.
Salty Dog is a restaurant specializing in seafood and grilled
items.[BN]
The Plaintiff is represented by:
Joshua Levin-Epstein, Esq.
Jason Mizrahi, Esq.
LEVIN-EPSTEIN & ASSOCIATES, P.C.
60 East 42nd Street, Suite 4700
New York, NY 10165
Telephone: (212) 792-0046
E-mail: Joshua@levinepstein.com
SEPHORA USA: Court Trims Down Martin's CIPA Violation Claims
------------------------------------------------------------
Magistrate Judge Stanley A. Boone of the U.S. District Court for
the Eastern District of California grants in part the Defendant's
motion to dismiss in the class action captioned as RUTH MARTIN,
Plaintiff v. SEPHORA USA, INC., Defendant, Case No.
1:22-cv-01355-JLT-SAB (E.D. Cal.).
The Plaintiff Ruth Martin initiated this putative class action
against Sephora USA, Inc. on Oct. 23, 2022. The instant diversity
class action is premised on claims that Sephora secretly wiretaps
the private conversations of everyone who communicates through the
chat feature at www.sephora.com and allows at least one third party
to eavesdrop on such communications to harvest data for financial
gain. The Plaintiff's operative complaint asserts causes of action
for violations of California Invasion of Privacy Act and seeks
class certification, declaratory relief, injunctive relief,
statutory and punitive damages, prejudgment interest, and
attorneys' fees and costs.
As an initial matter, the Court notes that the complaint runs afoul
of Rule 8 of the Federal Rule of Civil Procedure's notice pleading
requirement that the complaint "give the defendant fair notice of
what the claim ... is and the grounds upon which it rests." The
Court holds that "if the factual elements of a cause of action are
present but are scattered throughout the complaint and not
organized into a short and plain statement of the claim, dismissal
for failure to satisfy Rule 8 is proper." Here, the Plaintiff does
not identify separate counts for each theory under which she claims
the Defendant violated CIPA; instead, the Plaintiff merely block
quotes Section 631(a) of CIPA and states the "Defendant does all
three."
The Court also finds problematic the Plaintiff's identification of
the alleged third party with which Defendant purportedly shared the
at-issue communications to be either "Hubspot and/or Salesforce."
The failure to clearly identify with which entity the Defendant
allegedly aided/abetted/conspired to violate the Plaintiff's
privacy rights also runs afoul of Rule 8's notice pleading
requirement. In addition, the Plaintiff's failure to identify the
date of the at-issue incident, beyond the vague assertion that the
purported violation occurred sometime "within the past year" also
renders the complaint and alleged causes of action impermissibly
vague.
Here, the Plaintiff does not sue the purported third party,
"Hubspot and/or Salesforce," but only the Defendant Sephora. The
Defendant is undisputedly a party to the communication with the
Plaintiff arising from the Plaintiff's use of the chat window on
Sephora's website. Thus, to the extent Plaintiff alleges Defendant
recorded its own communications with her, the Court concludes that
the Plaintiff fails to state a claim against Sephora under the
first provision of Section 631(a) as a matter of law. Accordingly,
the Court dismisses with prejudice the Plaintiff's claim for
violations of the first clause of Section 631(a).
The Plaintiff alleges that the chat feature automatically records
and creates transcripts of all online chats. The Plaintiff also
alleges Defendant allows Hubspot and/or Salesforce to "intercept
the transcripts (during transmission and in real time)." But this
allegation is conclusory. As the Plaintiff does not allege how the
transcripts are intercepted simultaneously by Hubspot/Salesforce.
The Plaintiff does not allege facts showing that Hubspot/Salesforce
intercepted the Plaintiff's communication itself.
Hubspot/Salesforce's access to the transcripts created by Sephora,
therefore, does not spontaneously occur "during transmission," "in
real time," but after the chat is transcribed. Based on these
allegations, the Court concludes that the Plaintiff has not alleged
sufficient facts to show her communications were intercepted while
"in transit." As the Court noted, the Plaintiff's allegations are
conclusions.
Because the only Defendant in this action is Sephora, and the Court
has determined that the Plaintiff's claims against Sephora under
the first and second clause of Section 631(a) fail, the Court has
dismissed with prejudice the Plaintiff's claim for violations of
the third clause of Section 631(a), as a matter of law due to the
direct party exception.
The Court agrees with the Defendant that the Plaintiff fails to
allege sufficient facts to state a claim for derivative liability
pursuant to the fourth clause of Section 631(a). Notably, the
Plaintiff has not alleged any facts that "Hubspot and/or
Salesforce" violated the first, second, or third clause of Section
631(a). The Court further notes that it is problematic to her
claims that Plaintiff has neither named a third-party defendant in
this action, nor has clearly identified who the alleged third party
"eavesdropper" is. Rather, the Court finds all of Plaintiff's
allegations pertain to Sephora's actions, and no actions are
attributed to the alleged third-party eavesdropper. While dismissal
is appropriate, an abundance of caution recommends granting leave
to amend.
The Court also finds that the Plaintiff does not adequately allege
a claim under Section 632.7 because her pleadings do not allege
that she communicated with the Defendant using telephone technology
-- her claim fails as a matter of law. Therefore, the Defendant's
motion to dismiss the second cause of action should be granted,
without leave to amend.
Finally, the Court finds that the Plaintiff fails to allege facts
sufficient to establish she is entitled to punitive damages. The
Plaintiff seeks punitive damages under her general prayer for
relief but not under her two CIPA causes of action. While "magic
words" are not required to survive a motion to dismiss, the Court
notes the complaint is devoid of allegations relating to malice,
oppression, or fraud. In addition, having determined that the
Plaintiff failed to allege facts sufficient to state a claim for
violations of CIPA, the Court concludes that the Plaintiff fails to
allege entitlement to damages.
A full-text copy of the Findings and Recommendations dated March
30, 2023, is available https://tinyurl.com/4wmyjt8n from
Leagle.com.
TILRAY INC: Continues to Defend Kasilingam Class Suit in S.D.N.Y.
-----------------------------------------------------------------
Tilray Brands Inc. disclosed in its Form 10-Q Report for the fiscal
period ending February 28, 2023 filed with the Securities and
Exchange Commission on April 10, 2023, that the Company continues
to defend itself from the Kasilingam class suit in the United
States District Court for the Southern District of New York.
On May 4, 2020, Ganesh Kasilingam filed a lawsuit in the United
States District Court for the Southern District of New York
("SDNY"), against Tilray Brands, Inc., Brendan Kennedy and Mark
Castaneda, on behalf of himself and a putative class, seeking to
recover damages for alleged violations of Sections 10(b) and 20(a)
of the Securities Exchange Act of 1934 (the "Kasilingam
litigation"). The complaint alleges that Tilray and the individual
defendants overstated the anticipated advantages of the Company's
revenue sharing agreement with Authentic Brands Group ("ABG"),
announced on January 15, 2019, and that the plaintiff suffered
losses when Tilray's stock price dropped after Tilray recognized an
impairment with respect to the ABG deal on March 2, 2020.
On August 6, 2020, SDNY entered an order appointing Saul Kassin as
Lead Plaintiff and The Rosen Law Firm, P.A. as Lead Counsel.
Lead Plaintiff filed an amended complaint on October 5, 2020, which
asserts the same Sections 10(b) and 20(a) claims against the same
defendants on largely the same theory, and includes new allegations
that Tilray's reported inventory, cost of sales, and gross margins
in its financial reports during the class period were false and
misleading because Tilray improperly recorded unsellable "trim" as
inventory and understated the cost of sales for its products.
On September 27, 2021, the U.S. District Court entered an Opinion &
Order granting the Defendants’ motion to dismiss the complaint in
the Kasilingam litigation.
On December 3, 2021, the lead plaintiff filed a second amended
complaint alleging similar claims against Tilray and Brendan
Kennedy.
The defendants moved to dismiss the amended complaint on February
2, 2022.
On September 28, 2022, the Court granted in part and denied in part
the defendants’ motion to dismiss the second amended complaint.
On October 12, 2022, the Company filed a motion for reconsideration
and/or interlocutory appeal of this Court decision.
The Company still believes the claims are without merit and intends
to defend vigorously against them, but there can be no assurances
as to the outcome.
Tilray Inc. engages in the research, cultivation, production, and
distribution of medical cannabis and cannabinoids. The Company is
focused on medical cannabis research, cultivation, processing and
distribution of cannabis products worldwide. The company is based
in Nanaimo, British Columbia.
TILRAY INC: Continues to Defend Securities Class Suit in S.D.N.Y.
-----------------------------------------------------------------
Tilray Brands Inc. disclosed in its Form 10-Q Report for the fiscal
period ending February 28, 2023 filed with the Securities and
Exchange Commission on April 10, 2023, that the Company continues
to defend itself from securities class suit in the United States
District Court for the Southern District of New York.
On December 5, 2018, a putative securities class action was
commenced in SDNY against a number of defendants including Aphria
and certain current and former officers and directors. The action
claims that the defendants misrepresented the value of three
cannabis-producing properties Aphria acquired in Jamaica, Colombia,
and Argentina (the "LATAM Assets").
On December 3, 2018, two notorious short-sellers issued a report
about the acquisitions, claiming the LATAM Assets were
non-functional or non-existent, which allegedly caused Aphria's
stock price to fall.
On April 15, 2019, Aphria took impairment charges on the LATAM
Assets, which also allegedly caused Aphria's stock price to
decline.
The putative class action claims that Aphria artificially inflated
the price of its publicly-traded stock by making false statements
about the LATAM Assets, and when the purported truth was revealed
by a short-seller report and write-down, the stock price declined,
harming investors.
On September 30, 2020, the Court denied the motion to dismiss the
complaint as to Aphria, Vic Neufeld, and Carl Merton, and granted
the motion as to Cole Cacciavillani, John Cervini, Andrew
DeFrancesco, and SOL Global Investments.
On October 1, 2020, Plaintiffs moved for reconsideration of the
order dismissing DeFrancesco and SOL or, in the alternative, to
amend their complaint.
On October 14, 2020, Aphria, Neufeld, and Merton moved for
reconsideration of the order denying their motion to dismiss.
On September 29, 2021, the U.S. District Court issued an Order that
(i) permitted the plaintiffs to amend their lawsuit to revive the
claims against Andy DeFrancecso; and (ii) declined to revisit his
decision that claims could proceed against Aphria/Tilray, Vic
Neufeld, and Carl Merton.
Plaintiffs declined to amend their complaint, however, and so the
action is proceeding solely against Aphria/Tilray, Neufeld, and
Merton.
On December 5, 2022, the parties engaged in a mediation session
with an independent mediator. However, no settlement agreement was
reached.
It is too early to determine any potential damages from this
proceeding. The Company and the individual defendants believe the
claims are without merit, and intend to vigorously defend against
the claims, but there can be no assurances as to the outcome.
Tilray Inc. engages in the research, cultivation, production, and
distribution of medical cannabis and cannabinoids. The Company is
focused on medical cannabis research, cultivation, processing and
distribution of cannabis products worldwide. The company is based
in Nanaimo, British Columbia.
TILRAY INC: Delaware Chancery Court Approves SLC Settlement
-----------------------------------------------------------
Tilray Brands Inc. disclosed in its Form 10-Q Report for the fiscal
period ending February 28, 2023 filed with the Securities and
Exchange Commission on April 10, 2023, that the Delaware Court of
Chancery approved the Special Litigation Committee (the "SLC")
Settlement.
On February 27, 2020, Tilray stockholders Deborah Braun and Nader
Noorian filed a class action and derivative complaint in the
Delaware Court of Chancery styled Braun v. Kennedy, C.A. No.
2020-0137-KSJM. On March 2, 2020, Tilray stockholders Catherine
Bouvier, James Hawkins, and Stephanie Hawkins filed a class action
and derivative complaint in the Delaware Court of Chancery styled
Bouvier v. Kennedy, C.A. No. 2020-0154-KSJM.
On March 4, 2020, the Delaware Court of Chancery entered an order
consolidating the two cases and designating the complaint in the
Braun/Noorian action as the operative complaint. The operative
complaint asserts claims for breach of fiduciary duty against
Brendan Kennedy, Christian Groh, Michael Blue, and Privateer
Evolution, LLC (the "Privateer Defendants") for alleged breaches of
fiduciary duty in their alleged capacities as Tilray's controlling
stockholders and against Kennedy, Maryscott Greenwood, and Michael
Auerbach for alleged breaches of fiduciary duties in their
capacities as directors and/or officers of Tilray in connection
with the prior merger of Privateer Holdings, Inc. with and into a
wholly owned subsidiary (the "Downstream Merger").
The complaint alleges that the Privateer Defendants breached their
fiduciary duties by causing Tilray to enter into the Downstream
Merger and Tilray's Board to approve that Downstream Merger, and
that Defendants Kennedy, Greenwood, and Auerbach breached their
fiduciary duties as directors by approving the Downstream Merger.
Plaintiffs allege that the Downstream Merger gave the Privateer
Defendants hundreds of millions of dollars of tax savings without
providing a corresponding benefit to Tilray and its minority
stockholders and that the Downstream Merger unfairly transferred
and extended Kennedy, Blue, and Groh's control over Tilray.
In August 2021, the Company's Board of Directors established a
Special Litigation Committee (the "SLC") of independent directors
to re-assert director control and investigate the derivative claims
in this litigation matter.
The SLC has appointed the law firm Wilson Sonsini to assist the SLC
with an ongoing investigation of the underlying claim and determine
whether continued prosecution of such claims was in the best
interests of the Company.
On May 27, 2022, the SLC informed the Court that it had completed
its investigation; determined not to seek dismissal of the Action;
and confirmed its determination that the Company had suffered
significant damages and that the SLC would pursue claims to recover
appropriate amounts for the Company's benefit.
Thereafter, the SLC, all of the Defendants, and certain non-parties
participated in two mediation sessions before former Chancellor of
the Delaware Court of Chancery Andre G. Bouchard.
On July 15, 2022, the SLC reached an agreement in principle with
the Defendants and certain of the non-parties, and their respective
insurers, to resolve the claims asserted in the Action in exchange
for an aggregate amount of $26,900 to be paid to Tilray plus mutual
releases.
The SLC subsequently reached a further agreement with an additional
non-party and plaintiffs to settle the entire Action.
On December 20, 2022, the parties submitted to the Delaware Court
of Chancery a Stipulation and Agreement of Compromise, Settlement,
and Release ("SLC Settlement") which provided for, among other
things, an aggregate cash amount of $39,900 to be paid to Tilray in
exchange for mutual releases.
Tilray stockholders will not receive any direct payment from the
SLC Settlement.
The SLC Settlement was formally approved by the Delaware Court
following a hearing on February 27, 2023, and Tilray received the
settlement proceeds following such approval.
Tilray Inc. engages in the research, cultivation, production, and
distribution of medical cannabis and cannabinoids. The Company is
focused on medical cannabis research, cultivation, processing and
distribution of cannabis products worldwide. The company is based
in Nanaimo, British Columbia.
TOYOTA MOTOR: S.C. Court Awards $24.44K in Costs in Weinreich Suit
------------------------------------------------------------------
Judge Richard Mark Gergel of the U.S. District Court for the
District of South Carolina, Charleston Division, grants in part and
denies in part the Defendants' amended motion for costs in the
lawsuit titled Gary Weinreich and Robert O'Hara, individually and
on behalf of all others similarly situated, Plaintiffs v. Toyota
Motor Sales, U.S.A., Inc., et al., Defendants, Case No.
2:18-3294-RMG (D.S.C.).
The Court grants the Defendants' motion in the amount of
$24,440.05.
The case was a putative class action. Plaintiff Gary Weinreich
alleged that in June 2005, he purchased a new, fourth generation
Toyota 4Runner Sport and, when he took the car to be serviced at
the Toyota Service Center in Myrtle Beach in 2011 and 2013,
mechanics noted severe rust in the undercarriage, including the
transmission, although no resulting structural or safety problems
were indicated.
In 2017, service at a Meineke shop indicated excessive frame
corrosion and Weinreich learned that Toyota had a customer support
program for corrosion issues. In 2018, Weinreich lost control of
the car when the wheel vibrated and, after being towed to a garage,
it was determined that the right front control arm had broken away
from the frame due to corrosion and rust. Weinreich subsequently
sued the Defendants under a variety of theories.
Nearly five years after the Plaintiff filed suit, the Court granted
the Defendants summary judgment.
The Defendant filed its amended motion for costs on March 10, 2023.
On March 17, 2023, the Plaintiffs filed their response in
opposition.
On March 17, 2023, the Court entered an order stating that while it
would not grant the Defendants the $26,455.50 they requested for
color copying, it would order traditional copying costs associated
with said pages.
On March 22, 2023, the Defendants filed a supplement explaining
that while they accepted the Court's ruling on color copies, it was
important that the Court knows the costs for color copies were
incurred in good faith. As relevant here, the Defendants note that
the cost for traditional copying of the color documents at issue
would have been $3,703.91.
The Defendants ask for a total of $47,191.64 in costs for the
following expenditures: $20,311.42 for depositions costs;
$26,455.50 for color printing; $13.02 for black and white copying;
$61.80 for scanned images; and $350 in court fees. For support, the
Defendants have attached the sworn affidavit of Joel H. Smith,
counsel for the Defendants, and an internal accounting listing the
requested costs.
The Plaintiffs oppose on several grounds. The Plaintiffs argue, ,
among other things, that the Defendants have not provided
sufficient justification for their request of color copies.
The Court grants in part and denies in part the Defendants' motion.
The Court finds Smith's affidavit conforms with Section 1924. The
Court further finds that the Defendants are entitled to the
requested $20,311.32 for all related deposition costs.
As to the $26,455.50 requested for color copies, however, the Court
denies the Defendants' motion as they have not timely explained why
deponents needed color, as opposed to black and white copies, to
prepare for their depositions. The Court does award the Defendants,
however, $3,703.91 to cover the cost of traditional copies
associated with said pages. Last, the Court awards the Defendants
$61.80 for scanned images and $350 in court fees, requests which
the Plaintiffs do not oppose.
A full-text copy of the Court's Order and Opinion dated March 27,
2023, is available at https://tinyurl.com/4b3shhuz from
Leagle.com.
TWITTER INC: Adler Sues Over Mass Layoff Without Notice
-------------------------------------------------------
EITAN ADLER, individually and on behalf of all others similarly
situated, Plaintiff v. TWITTER, INC., Defendant, Case No.
3:23-cv-01788 (N.D., Cal., April 13, 2023) alleges violation of the
Worker Adjustment and Retraining Notification Act as well as
failure to provide employees' final pay and benefits on the same
day that they were terminated, in violation of the California Labor
Code.
TWITTER, INC. provides online social networking and microblogging
service. The Company offers users the ability to follow other users
activity, read, and post tweets. Twitter serves customers
worldwide. [BN]
The Plaintiff is represented by:
Shannon Liss-Riordan, Esq.
Thomas Fowler, Esq.
LICHTEN & LISS-RIORDAN, P.C.
729 Boylston Street, Suite 2000
Boston, MA 02116
Telephone: (617) 994-5800
Email: sliss@llrlaw.com
tfowler@llrlaw.com
UNION INSTITUTE: McGonegle Sues Over Unpaid Compensations
---------------------------------------------------------
Marie McGonegle, individually and on behalf of those similarly
situated v. UNION INSTITUTE AND UNIVERSITY; THE BOARD OF TRUSTEES
OF UNION INSTITUTE AND UNIVERSITY; EDGAR L. SMITH, JR., BOARD
CHAIR; DR. JEFFREY M. SHEPARD, BOARD VICE CHAIR; DONALD FELDMAN,
BOARD TREASURER; ROGER ALLBEE, TRUSTEE; KAREN BIESTMAN, TRUSTEE;
DR. GLADYS GOSSETT HANKINS, TRUSTEE; DR. EDWIN C. MARSHALL,
TRUSTEE; CHRISTINE VAN DUELMENm TRUSTEE; DR. KAREN SCHUSTER WEBB,
PRESIDENT; Case No. 1:23-cv-00199-DRC (S.D. Ohio, April 11, 2023),
is brought for violations of the Fair Labor Standards Act ("FLSA")
and Ohio law as a result of unpaid compensations.
The Defendants have employed numerous employees who have not been
paid for the work they have performed since March 10, 2023. The
Defendants have indicated to the Plaintiff that they have no
intention of paying the Plaintiff and those similarly situated, for
the work they have performed, says the complaint.
The Plaintiff was employed by the Defendants.
The Defendants operate an institution of higher learning with an
emphasis on online education.[BN]
The Plaintiff is represented by:
Matthew S. Okiishi, Esq.
FINNEY LAW FIRM, LLC
4270 Ivy Pointe Blvd., Suite 225
Cincinnati, OH 45245
Phone: (513) 943-6650
Fax: (513) 943-6669
Email: matt@finneylawfirm.com
UNION PACIFIC: Court Directs Filing Discovery Plan in Sandoval Suit
-------------------------------------------------------------------
In the class action lawsuit captioned as Sandoval v. Union Pacific
Railroad Company, Case No. 1:23-cv-01048-MMM-JEH (C.D. Ill.), the
Hon. Judge Jonathan E. Hawley entered a standing order as follows:
-- Rule 16 scheduling conference
The Court will set a Rule 16 scheduling conference
approximately
30 days after the answer or other responsive pleading is
filed.
The conference will generally be conducted by telephone.
-- Discovery plan
The discovery plan shall be filed with the Court at least
three
calendar days before the Rule 16 scheduling conference.
-- Waiver of the Rule 16 scheduling conference
If the parties agree on all matters contained in the
discovery
plan, then the parties may waive the Rule 16 scheduling
conference. To do so, the parties shall indicate in the
discovery that the parties agree upon all maters contained
within the discovery plan, and they request that the Rule 16
scheduling conference be cancelled.
-- Failure of counsel to attend a scheduled telephone hearing
For the convenience of counsel, the Court conducts most
hearings
by telephone when possible. Counsel's failure to appear for a
telephone hearing will be treated as a failure of counsel to
appear for an in-person hearing.
-- Discovery disputes brought to the Court's attention after the
discovery deadline has already passed
The parties may not raise a discovery dispute with the Court
after the relevant discovery deadline has passed; all
discovery
disputes must be brought to the Court's attention before the
relevant discovery deadline passes. Any discovery disputes
raised with the Court after the expiration of the relevant
discovery deadline shall be deemed waived by the Court, even
if
the parties agreed to conduct discovery after the relevant
discovery deadline has passed. If the parties agree to
conduct
discovery after the expiration of a deadline set by the
Court,
they must still file a motion requesting that the Court move
that deadline as agreed by the parties in order to avoid any
subsequent discovery disputes being deemed waived.
-- Settlement conferences and mediation
The parties are encouraged to seek a settlement conference or
mediation with a magistrate judge. Where parties request a
settlement conference or mediation in a case referred to
Judge
Hawley, Judge Hawley will conduct said conference or
mediation.
Union Pacific is a freight-hauling railroad that operates 8,300
locomotives over 32,200 miles routes in 23 U.S. states west of
Chicago and New Orleans.
A copy of the Court's order dated April 12, 2023 is available from
PacerMonitor.com at https://bit.ly/3KSEZ6K at no extra charge.[CC]
UNITED STAFFING: Magtoles' Summary Judgment Bid Granted in Part
---------------------------------------------------------------
Judge Kiyo A. Matsumoto of the U.S. District Court for the Eastern
District of New York grants in part and denies in part the
Plaintiffs' motion for summary judgment in the case captioned as
MARY GRACE MAGTOLES, AIRA C. TAN, ANA MYRENE ESPINOSA, and ANA
MERVINE ESPINOSA, individually and on behalf of all others
similarly situated, Plaintiffs v. UNITED STAFFING REGISTRY, INC.
d/b/a UNITED HOME CARE and BENJAMIN H. SANTOS, Defendants, Case No.
21-CV-1850 (KAM) (PK) (E.D.N.Y.).
In 2018 and 2019, Plaintiffs Mary Grace Magtoles, Aira C. Tan, and
Ana Myrene Espinosa each signed United Staffing Registry, Inc.'s
"Standard Contract" to work for the company as registered nurses.
The Plaintiffs are citizens of the Republic of the Philippines who
work as healthcare professionals in the New York area. The
Plaintiffs bring this putative class action against United
Staffing, and its sole owner, president, and chief executive
officer, Benjamin H. Santos, for violations of the Trafficking
Victims Protection Act.
Now, the Plaintiffs request entry of summary judgment: (1)
declaring that the liquidated damages and non-compete clauses in
their standard employment contracts are unenforceable under both
the Trafficking Victims Protection Act, 18 U.S.C. Section 1589 et
seq., and under New York common law; (2) permanently enjoining the
Defendants from threatening or attempting to enforce either the
liquidated damages provision or the non-compete clause; (3) finding
both the Defendants liable for breach of contract in amounts to be
determined at trial or inquest, including piercing the corporate
veil of corporate Defendant United Staffing Registry, Inc. and to
hold individual Defendant Santos personally liable; (4) finding
both the Defendants liable for violations of the TVPA in amounts to
be determined at trial or inquest; and (5) awarding the Plaintiffs
reasonable attorneys' fees and the costs.
The Court declares the liquidated damages provision and non-compete
clauses in the employment contracts to be unenforceable and enjoins
the Defendants from attempting or threatening to enforce it. The
Court reasons that "a provision that either prevents the Plaintiffs
from being involved in any capacity in their industry anywhere in
the United States, or, even more broadly, simply anywhere that is
not United Staffing, is patently unreasonable and unenforceable."
The undisputed record before the Court establishes that the
Defendants breached the contract's prevailing wages provision by
failing to pay multiple class members for all the hours they worked
at the Defendants' respective client facilities. Nurse Plaintiffs
also argue that the Defendants failed to pay them the prevailing
wage for all hours worked. The Plaintiffs' assertions primarily
involve the Defendants paying nurses who worked at Regal Heights
Nursing & Rehabilitation Center less than the prevailing wage rate
during the nurses' orientation periods. Considering that both the
standard contract and the Orientation Agreement are unambiguous,
the Court concludes that liability has been established against the
Defendants for breach of contract for class members who were
required to sign the Regal Heights Orientation Agreement and thus
were paid below the prevailing wage during the orientation period.
However, the Court denies summary judgment on the ground "that
United Staffing breached the contracts' prevailing wages provision
by deducting time for breaks that were not allowed or taken. . .
because Plaintiffs failed to present evidence in a useful manner
establishing that the Defendants breached the prevailing wage
provision by deducting time for meal periods or breaks Plaintiffs
did not actually take." Moreover, summary judgment on Plaintiffs'
breach of contract claim cannot be awarded on the grounds that the
Defendants failed to give Nurse Plaintiffs and other class members
sufficient work to achieve at least 2,000 hours of work per year.
The Court finds from the papers and circumstances viewed as a
whole, that the Defendants have abandoned any defense or rebuttal
against the Plaintiffs' summary judgment motion to pierce the
corporate veil as to Defendant Santos and, consequently, the
Plaintiffs' motion on that issue is granted.
The Court also grants Plaintiffs' summary judgment motion as to the
Defendants' liability under the TVPA. The Court explains that "the
TVPA provides a private right of action to persons who have been
subjected to forced labor." Here, the Court considers the
particular vulnerabilities of the class members, which include but
are not limited to: "Plaintiffs' emotionally and physically
difficult work circumstances; reliance on Defendants'
representatives to understand the contract; reluctance to complain
to the United States embassy about the contract due to being
'nervous'; Plaintiffs' lack of negotiating or bargaining power as
to the terms of the contract, in comparison to the highly
experienced Defendants; and the non-compete clause in the contract,
which placed unenforceable restrictions on Plaintiffs' ability to
work in the nursing industry should they leave Defendants'
employ."
Finally, Plaintiff Bhyng Espinosa seeks summary judgment on her
claims for fraud and unjust enrichment. Upon review of "Exhibit 9"
and other submitted evidence, the Court denies summary judgment.
Although the receipts allegedly relate to Ms. Bhyng Espinosa's
payments for her "lawyer's and newspaper ad fees" none of these
receipts clearly reference a labor certification.
Damages to Plaintiff Magtoles and the class caused by the
Defendants' breach of contract and under the TVPA are to be
determined at a later date.
A full-text copy of the Memorandum & Order dated March 30, 2023, is
available https://tinyurl.com/3k4674p5 from Leagle.com.
UNITED STATES: U.S. Supreme Court Refuses to Hear Donziger's Appeal
-------------------------------------------------------------------
The Supreme Court of the United States denies the petition for a
writ of certiorari filed in the lawsuit titled STEVEN DONZIGER v.
UNITED STATES, Case No. 22-274 (U.S.).
Mr. Donziger's petition seeks review of the Second Circuit's
decision affirming his conviction.
Justice Neil Gorsuch, with whom Justice Brett Kavanaugh joins,
dissenting from the denial of certiorari.
For decades, Texaco, a corporate predecessor to Chevron, allegedly
polluted rain forests and rivers in South America (Aguinda v.
Texaco, Inc., 303 F.3d 470, 473 (CA2 2002)). In 1993, residents of
Ecuador came to court seeking relief for personal and environmental
injuries they said the company had caused. Represented by Steven
Donziger, the plaintiffs filed a class-action suit in the U.S.
District Court for the Southern District of New York. At the
company's insistence, the court transferred the litigation to
Ecuador (Republic of Ecuador v. Chevron Corp., 638 F.3d 384,
389-390 (CA2 2011)). Later, Chevron came to regret that move. After
trial, it found itself on the wrong end of an $8.6 billion
judgment.
Returning to the Southern District of New York, the company
launched a counteroffensive. Ultimately, it won not only an
injunction against the enforcement of the Ecuadorian judgment in
any court in the United States (Chevron Corp. v. Donziger, 833 F.3d
74, 80 (CA2 2016)). It also won a constructive trust on all assets
Mr. Donziger received in this or any country as a result of the
Ecuadorian judgment.
To enforce that trust, the district court granted Chevron discovery
into Mr. Donziger's holdings and ordered him to surrender all of
his electronic devices for forensic imaging. When Mr. Donziger
failed to comply fully with the court's orders, it held him in
criminal contempt and referred the matter to the U.S. Attorney's
Office for prosecution. After some deliberation, however, the U. S.
Attorney "respectfully declined" to take up the case.
Apparently displeased with this decision, the district court
responded by setting up and staffing its own prosecutor's office.
In the bench trial that followed, that office secured a conviction
and the court sentenced Mr. Donziger to six months in prison.
Throughout these proceedings and on appeal, Mr. Donziger objected.
He argued that the district court had no lawful authority to
override the Executive Branch's nonprosecution decision and that
the Constitution's separation of powers exists in no small measure
to keep courts from becoming partisans in the cases before them.
Despite his arguments, the Second Circuit affirmed Mr. Donziger's
conviction. Judge Steven Menashi dissented.
On March 27, 2023, the Supreme Court denies Mr. Donziger's petition
seeking review of the Second Circuit's decision. "I would grant it.
In Young v. United States ex rel. Vuitton et Fils S. A., 481 U.S.
787 (1987), this Court approved the use of court-appointed
prosecutors as a 'last resort' in certain criminal contempt cases,"
Justice Gorsuch says.
But that decision has met with considerable criticism. As Members
of the Supreme Court have put it, the Constitution gives courts the
power to "serve as a neutral adjudicator in a criminal case," not
"the power to prosecute crimes." The Second Circuit acknowledged,
too, that Young stands in considerable "tension" with the Supreme
Court's subsequent separation-of-powers decisions.
Even taking Young on its own terms, it is hard to see how that
decision could justify what happened here, according to Justice
Gorsuch. Young rested on the premise that the court-appointed
prosecutors in that case wielded judicial power, meaning they were
subject to judicial, not executive, supervision. By contrast,
"[e]very court and every party" has acknowledged that the
court-appointed prosecutors in this case did not exercise judicial
power (Menashi, J., dissenting). Instead, all agree, the
court-appointed prosecutors here exercised "executive power" and
were accountable through the Executive Branch's chain of command
running ultimately to the President. By its own terms, then, Young
simply does not speak to Mr. Donziger's situation, Justice Gorsuch
points out.
Nor without Young is it clear what legal principle could sustain
Mr. Donziger's conviction, Justice Gorsuch explains. Highlighting
the confused (but surely executive) nature of the prosecution in
this case, the "United States" supplied the Second Circuit with two
different briefs offering different theories. One brief came from
the court-appointed prosecutors, another from lawyers within the
Department of Justice.
Adopting one of the court-appointed prosecutors' theories, the
Second Circuit reasoned that those who prosecuted Mr. Donziger
served as properly appointed "inferior officers" of the United
States within the Executive Branch. But under the Constitution's
Appointments Clause, "Courts of Law" may appoint inferior officers
only when "Congress by Law vests" them with that authority.
The Second Circuit pointed to Federal Rule of Criminal Procedure
42. That submission, however, faces at least two challenges,
Justice Gorsuch explains. First, in Young, the Supreme Court
rejected the notion that the then-existing version of Rule 42 could
serve as an independent font of appointment authority. After all,
it is a Rule of court rather than an enactment of Congress, and
therefore, it cannot confer Article II appointment authority on
anybody. Second, courts have adopted Rule 42 under the Rules
Enabling Act. That statute provides that any rules of court
promulgated under its terms "shall not abridge . . . or modify any
substantive right," 28 U. S. C. Section 2072(b). Yet, the manner in
which the Second Circuit applied Rule 42 had just that
impermissible effect.
Justice Gorsuch opines that the decision of a prosecutor not to
indict is one that belongs squarely within the special province of
the Executive Branch, citing Heckler v. Chaney, 470 U.S. 821, 832
(1985). This structural principle serves to protect the individual
just as much as the Executive Branch. By interpreting Rule 42 as
authorizing courts to make their own decision to initiate a
prosecution--and even to override a contrary decision by the
Executive Branch--the Second Circuit's opinion not only arrogated a
power to the Judiciary that belongs elsewhere. It allowed the
district court to assume the dual position as accuser and
decisionmaker--a combination that violates the due process rights
of the accused.
Seeking to avoid these problems, lawyers from the Department of
Justice advanced other theories in their own brief before the
Second Circuit. Most pertinently, they suggested that the
court-appointed prosecutors did not serve as inferior officers for
purposes of the Appointments Clause; instead, they served only as
nonofficer employees in the Executive Branch. But not only is this
position inconsistent with how the Second Circuit viewed the
matter. It is hard to square with the Supreme Court'S own
precedent, Justice Gorsuch says.
"And even overlooking all that, the notion that the Constitution
allows one branch to install nonofficer employees in another branch
would come as a surprise to many. Who really thinks that the
President may choose law clerks for my colleagues, that we can pick
White House staff for him, or that either he or we are entitled to
select aides for the Speaker of the House?" Justice Gorsuch
writes.
According to Justice Gorsuch, however "much the district court may
have thought Mr. Donziger warranted punishment, the prosecution in
this case broke a basic constitutional promise essential to our
liberty. In this country, judges have no more power to initiate a
prosecution of those who come before them than prosecutors have to
sit in judgment of those they charge. In the name of the 'United
States,' two different groups of prosecutors have asked us to turn
a blind eye to this promise. Respectfully, I would not."
With the Supreme Court's failure to intervene here, Justice Gorsuch
says he can only hope that future courts weighing whether to
appoint their own prosecutors will consider carefully Judge
Menashi's dissenting opinion in this case, the continuing vitality
of Young, and the limits of its reasoning. The Constitution does
not tolerate what happened here.
A full-text copy of Justice Gorsuch's Dissent dated March 27, 2023,
is available at https://tinyurl.com/2p8ztc6f from Leagle.com.
WEGMANS FOOD: Fails to Pay Proper Wages ,Benjamin Alleges
---------------------------------------------------------
MELISSA BENJAMIN, individually and on behalf of all others
similarly situated, Plaintiff v. WEGMANS FOOD MARKETS, INC.,
Defendant, Case No. 511214/2023 (N.Y., Sup., Kings Cty., April 16,
2023) seeks to recover from the Defendants unpaid wages, interest,
liquidated damages, attorneys' fees, and costs.
Plaintiff Benjamin was employed by the Defendant as a food
preparer.
WEGMANS FOOD MARKETS, INC. owns and operates a chain of grocery
stores. The Company offers products such as meat, seafood, deli,
baked goods, health supplements, herbal remedies, pharmacy
products, and wines. [BN]
The Plaintiff is represented by:
Mohammed Gangat, Esq.
LAW OFFICE OF MOHAMMED GANGAT
675 Third Avenue, Suite 1810,
New York, NY 10017
Telephone: (718) 669-0714
Email: mgangat@gangatpllc.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.
*********
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
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Fernandez, Joy A. Agravante, Psyche A. Castillon, Julie Anne L.
Toledo, Christopher G. Patalinghug, and Peter A. Chapman, Editors.
Copyright 2023. All rights reserved. ISSN 1525-2272.
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