/raid1/www/Hosts/bankrupt/CAR_Public/230511.mbx
C L A S S A C T I O N R E P O R T E R
Thursday, May 11, 2023, Vol. 25, No. 95
Headlines
ABRIDGE CARE: Fails to Pay OT Wages Under FLSA, Rankins Suit Says
ADVANCE PUBLICATIONS: Anderson Must File Class Cert Bid by May 31
AJAS ENTERPRISES: Fails to Pay Chefs', Servers' OT Wages Under FLSA
ALABAMA: 11th Cir. Affirms Summary Judgment in Thompson Class Suit
AMERICAN AIRLINES: Continues to Defend Antitrust Class Suit in MA
AMERICAN AIRLINES: Continues to Defend Antitrust Suit in E.D.N.Y.
APPLE INC: Bid to Block $2-B Class Suit Over Battery Issues Filed
AT&T MOBILITY: $575K Settlement in Razo Suit Wins Final Approval
AVOCADO MATTRESS: Pina Files False Advertisement Suit in N.D. Cal.
BOARDRIDERS INC: Discloses Video Viewing Habits, Cantu Suit Alleges
BOOHOO.COM USA: Agrees to Settle Fake Discounts Suit for $197-M
BOSTON UNIVERSITY: Dutra Appeals Summary Judgment in Refund Suit
CAPITAL ONE: Opposition to Class Cert Bid Extended to June 1
CELLCO PARTNERSHIP: Consumer Class Suit Arbitration Clause Rejected
CHARTER COMMUNICATIONS: Appeals Class Cert. Ruling in Sansone Suit
COVERALL NORTH: Appeals Denial of Bid to Dismiss Bille Suit
CP IV WATERFRONT: Appeals Lethgo Suit Remand Order to 9th Cir.
ELASTOS FOUNDATION: Closing of Fact Discovery Adjourned to July 11
ELI LILLY & CO: Antitrust Class Suit Ongoing in W.D.N.Y.
ENERGIZER HOLDINGS: Portable Power Sues Over Anticompetitive Scheme
ERIC SABREE: Court Severs Bowles' Class Action Claims
EXPRESS SCRIPTS: Perez Appeals Summary Judgment Ruling to 3rd Cir.
EZENZIA LLC: Glines Sues Over Automated Text Messages
FAIRFIELD HEALTHCARE: Aboah Appeals Reconsideration Bid Denial
FIDELITY NATIONAL: Faces Nebraska Suit Over 12% Stock Price Drop
FLORIDA ATLANTIC: Dismissal of Heine Suit With Prejudice Upheld
GLAXOSMITHKLINE CONSUMER: Calchi Appeals Case Dismissal Ruling
GLOCK INC: Filing of Class Certification Bid Extended to Oct. 12
GREGORY SEABOLT: Partly Wins Summary Judgment vs Martin
GUAM: AG Appeals Injunction Ruling in Gynecologists' Suit
HOMEFIX CUSTOM: Gonzalez TCPA Suit Moved to District of Maryland
JOHNSON & JOHNSON: Bid to Dismiss Melzer Class Suit Granted in Part
JULIAN WISER: Hunt Class Certification Bid Tossed
JUMIO INC: Court Denied Motion to Dismiss Suit Over BIPA Violations
KANZHUN LTD: Settlement Deal in Bell Suit Wins Final Nod
KROGER CO: Solano Seeks More Time to File Class Cert Briefing
LANDMARK RECOVERY: Hale Seeks to Certify Direct Care Employees
LEPRINO FOODS: Court Partly Grants Walter Class Status Bid
LOS ANGELES, CA: Hearing on Class Status Bid Set for Oct. 14
MICHAEL ARAM INC: Fines Sues Over Unsolicited Text Messages
MICROGENICS CORP: Order Narrowing Steele-Warrick Claims Reaffirmed
MONDELEZ INTERNATIONAL: Court Narrows Claims in Wallenstein Suit
NAVIENT SOLUTIONS: Appeals Arbitration Bid Denial in Botello
NAVY FEDERAL: Appeals Class Cert. Ruling in Morrow Breach Suit
NEW YORK, NY: Order Scheduling Initial Case Management Entered
NEW YORK, NY: Plaintiffs Must File Class Cert Bid by Sept. 8
NORFOLK SOUTHERN: Ohio Inmate Joins Train Derailment Class Suit
OAK GROVE: Kluender Seeks Proper OT Pay for Resident Care Aides
OLIN CORP: Bid for Class Certification Hearing Tossed
ONE BROOKLYN: Fails to Protect Patients' Info, Johnson Suit Says
PELOTON INTERACTIVE: Court Denies Certification in Streaming Suit
PEOPLEREADY INC: Reyes Seeks to Recover Unpaid OT Wages Under FLSA
PERF OPCO LLC: Hwang Files ADA Suit in E.D. New York
PH-D FEMININE HEALTH: Campbell Files Suit in S.D. New York
PHENOMENEX INC: Encabo Sues Over Unpaid Minimum, Overtime Wages
RASPOUTINE L.A.: Howard-Troll Files Suit in Cal. Super. Ct.
REALPAGE INC: Carter Suit Transferred to M.D. Tennessee
REALPAGE INC: Kempton Files Suit in M.D. Tennessee
REALPAGE INC: Vincin Suit Transferred to M.D. Tennessee
REGIONAL EXPRESS: Seeks More Time to File Class Cert Response
RESPONDUS INC: Veiga Sues Over Unlawful Collection of Biometrics
RHODE ISLAND HOUSING: Martinez Files Suit in D. Rhode Island
RICH HOLDINGS: Flores Files Suit in Cal. Super. Ct.
RITE AID: Neu Sues Over Lidocaine Patches' Adhesion Defects
ROBINHOOD FINANCIAL: Scarborough Suit Transferred to S.D. Florida
RYDER SYSTEM: Agrees to Settle Suit Over COBRA Notices for $390-M
SA HOSPITALITY: Mera Sues Over Improper Overtime Payment
SAC PROFLOORS: Balux Och Files Suit in Cal. Super. Ct.
SAN DIEGO COUNTY, CA: Suit Seeks Provisional Class Status
SAND INVESTMENTS: Roberts Sues Over Failure to Pay Compensation
SANSI LED LIGHTING: Bassaw Files ADA Suit in S.D. New York
SHIRLEY RAE SHARMA: Santiago Files Suit in Cal. Super. Ct.
SOUTHWEST AIRLINES: Smith Suit Transferred to S.D. California
ST. CROIX OF PARK FALLS: Tucker Files ADA Suit in S.D. New York
STAKE CENTER LOCATING: Wolfe Sues to Recover Unpaid Overtime Wages
STALLION EXPRESS: Pires Seeks Couriers' Unpaid Minimum, OT Wages
STIX GOLF: Espinal Files ADA Suit in S.D. New York
STONE ACADEMY: Faces Class Suit Over Abrupt School Closure
STREAMLABS LLC: Class Certification Hearing Set for Dec. 15
SUJA LIFE LLC: Rodriguez Files ADA Suit in S.D. New York
SUPERIOR AIR-GROUND: Estrada Seeks Proper Wages for Paramedics
SWIFTFUNDS FINANCIAL: Hastings Files FDCPA Suit in E.D. Texas
SYNERGY SPA: Spain Files Suit in E.D. North Carolina
TESLA INC: Nana-anyangwe Sues Over EV Market Monopolization
TEXAS HEALTH: Files Appeal in Strong Class Suit
TIKTOK INC: Greco Suit Over Public Nuisance Dismissed W/o Prejudice
TMX FINANCE: DeJesus Sues Over Failure to Safeguard PII
TOTAL MAINTENANCE: Fails to Pay Regular, OT Wages Under FLSA
TRINET HR: Bid for Summary Judgment in Huang ERISA Suit Granted
UBER TECHNOLOGIES: 3rd Cir. Affirms Arbitration Order in Singh Suit
UNITED STATES: Egolf Files Suit in D. Alaska
UNITED STATES: Warning of Phishing Scam in Water Contamination Suit
UNIVERSITY HOSPITALS: Fails to Provide Meal Breaks, Gless Claims
USA TODAY: Two-Step FLSA Collective Certification Approach Rejected
VALUEELECTRONICS.COM: Bassaw Files ADA Suit in S.D. New York
VARSITY BRANDS: American Spirit Appeals Case Dismissal Ruling
VICAR OPERATING: Filing of Class Status Bid Due Oct. 23
VICTORIA'S SECRET: Sethy Sues to Recover Untimely Compensation
VICTORIA: Notice of Proposed Settlement in Towers Suit Discussed
VIESTE SPE: Crossfirst Bank Class Status Bid Tossed
VOLKSWAGEN GROUP: Steinhardt Suit Removed to D. New Jersey
VSS-SOUTHERN THEATERS: Hoge Alleges Privacy Law Violations
VUARNET INC: Hwang Files ADA Suit in E.D. New York
WALMART INC: Hearing on Class Status Bid Set for August 18
WALMART INC: Kahn Appeals Consumer Suit Dismissal to 7th Cir.
WASTE MANAGEMENT: Continues to Defend Securities Class Suit in NY
WEST TECHNOLOGY: Mauldin Files Suit in D. Nebraska
WEST TECHNOLOGY: Pulliam Files Suit in D. Nebraska
WOW RESTAURANT: Amended Bid to Dismiss Chen FLSA Suit Denied
XCEL ENERGY: Hearing on Dismissal Bid Set for May
YOUR INSURANCE: Padilla Sues Over Legal Assistants' Minimum Wages
YUM! BRANDS INC: Beasley Files Suit in W.D. Kentucky
ZOETIS INC: De Lara Suit Removed to C.D. California
ZYMERGEN INC: Class Certification Hearing Rescheduled to August 10
*********
ABRIDGE CARE: Fails to Pay OT Wages Under FLSA, Rankins Suit Says
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MEGAN RANKINS, on behalf of herself and all others similarly
situated v. ABRIDGE CARE CONCEPTS, LLC, Case No. 1:23-cv-00547
(E.D. Wis., Apr. 28, 2023) seeks to recover unpaid overtime
compensation, unpaid straight time (regular) and/or agreed upon
wages, pursuant to the Fair Labor Standards Act and the Wisconsin's
Wage Payment and Collection Laws.
The Plaintiff contends that the Defendant operated an unlawful
compensation system that deprived and failed to compensate the
Plaintiff and all other current and former hourly-paid, non-exempt
employees for all hours worked and work performed each workweek,
including at an overtime rate of pay for each hour worked in excess
of 40 hours in a workweek, by failing to include all forms of
non-discretionary compensation, such as monetary bonuses, premiums,
incentives, awards, and/or other rewards and payments, in said
employees' regular rates of pay for overtime calculation purposes.
During the Plaintiff's employment with Defendant, the Defendant
allegedly failed to compensate the Plaintiff for "off the clock"
hours worked and work performed each workweek at Defendant's
direction, on Defendant's behalf, for Defendant's benefit, and/or
with Defendant's knowledge. The Defendant also directed, expected,
and/or required Plaintiff to perform and complete the
aforementioned job duties and tasks "off-the-clock" while at home
and/or outside of Plaintiff's normal or customary shift schedule,
says the suit.
In April 2022, the Defendant hired the Plaintiff as an hourly-paid,
non-exempt employee in the positions of Caregiver and Med Tech
working alongside other hourly-paid, non-exempt employees at the
Defendant's Ripon, Wisconsin location.
Abridge Care is an "assisted living community" that owns, operates,
and manages multiple physical locations in the State of
Wisconsin.[BN]
The Plaintiff is represented by:
James A. Walcheske, Esq.
Scott S. Luzi, Esq.
David M. Potteiger, Esq.
WALCHESKE & LUZI, LLC
235 N. Executive Drive, Suite 240
Brookfield, WI 53005
Telephone: (262) 780-1953
Facsimile: (262) 565-6469
E-mail: jwalcheske@walcheskeluzi.com
sluzi@walcheskeluzi.com
dpotteiger@walcheskeluzi.com
ADVANCE PUBLICATIONS: Anderson Must File Class Cert Bid by May 31
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In the class action lawsuit captioned as Anderson v. Advance
Publications, Inc., et al., Case No. 1:22-cv-06826-AT (S.D.N.Y.),
the Hon. Judge Analisa Torres entered an order granting the
Plaintiff's request to file a motion for class certification under
Federal Rule of Civil Procedure 23.
-- By May 31, 2023, the Plaintiff shall file his motion for
class
certification.
-- By June 21, 2023, the Defendant shall file his motion for
class
certification.
-- By July 5, 2023, the Plaintiff shall file his reply, if any.
Advance Publications is a privately-held American media company
owned by Donald Newhouse and Samuel Irving Newhouse Jr.
A copy of the Court's order dated April 25, 2023 is available from
PacerMonitor.com at https://bit.ly/428iBxs at no extra charge.[CC]
AJAS ENTERPRISES: Fails to Pay Chefs', Servers' OT Wages Under FLSA
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LENARD MINOR, and all others similarly situated pursuant to 29
U.S.C. section 216(b) v. AJAS ENTERPRISES, INC. d/b/a THE FISH
GRILL, Case No. 0:23-cv-60790-CMA (S.D. Fla., Apr. 28, 2023) seeks
to recover all overtime wages that the Defendant refused to pay the
Plaintiff and all other similarly situated employees as a result of
the Defendant's misclassification of restaurant chefs and servers,
pursuant to the Fair Labor Standards Act.
From the time he was hired until September 14, 2022, the Defendant
paid the Plaintiff his hourly wage for his first 40 hours of work
per week. However, the Defendant also paid the Plaintiff additional
straight-time pay for all of the Plaintiff's work in excess of 40
hours per week in cash. Nevertheless, when the Defendant began
paying plaintiff on a salary basis on September 15, 2022, the
Defendant ceased to pay the Plaintiff any additional money for the
hours he worked in excess of 40 per week, the Plaintiff contends.
The Defendant allegedly misclassified the Plaintiff as an exempt
employee under the FLSA from September 15, 2022 until his last day
of employment on January 2, 2023. During his employment with the
Defendant, the Plaintiff performed non-exempt work, did not have
supervisory authority over any individuals, did not make decisions
of importance on behalf of Defendant, and was not required to
possess any advanced training, skill, or education in order to
perform any of his duties and responsibilities as a cook for the
Defendant, the suit asserts.
The Plaintiff seeks to represent the following collective of
employees who have also fallen victim to Defendants' unlawful pay
policies:
All Restaurant Cooks who were not paid overtime wages for
their work over 40 hours per week for any workweek within the
previous three (3) years.
The Plaintiff worked for the Defendant as a full time, non-exempt
cook from August 2021 until January 2, 2023.[BN]
The Plaintiff is represented by:
Jordan Richards, Esq.
Michael v. Miller, Esq.
USA EMPLOYMENT LAWYERSJORDAN RICHARDS, PLLC
1800 SE 10th Ave, Suite 205
Fort Lauderdale, FL 33316
Telephone: (954) 871-0050
E-mail: Jordan@usaemploymentlawyers.com
michael@usaemploymentlawyers.com
ALABAMA: 11th Cir. Affirms Summary Judgment in Thompson Class Suit
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In the case, TREVA THOMPSON, individually and behalf of all others
similarly situated, TIMOTHY LANIER, individually and behalf of all
others similarly situated, GREATER BIRMINGHAM MINISTRIES,
Plaintiffs-Appellants, DARIUS GAMBLE, PAMELA KING, individually and
behalf of all others similarly situated, Plaintiffs v. STATE OF
ALABAMA, et al., Defendants, SECRETARY OF STATE FOR THE STATE OF
ALABAMA, LEIGH GWATHNEY, in her official capacity as Chairman of
the Board of Pardons and Paroles, JAMES SNIPES, III, in his
official capacity as Chairman of the Montgomery County Board of
Registrars and on behalf of a class of all voter registrars in the
State of Alabama, Defendants-Appellees, Case No. 21-10034 (11th
Cir.), the U.S. Court of Appeals for the Eleventh Circuit affirms
the District Court's grant of summary judgment in favor of
Alabama.
Greater Birmingham Ministries ("GBM"), an Alabamian non-profit
organization dedicated to aiding low-income individuals, and
several Alabamian felons (collectively "Appellants") appeal the
District Court for the Middle District of Alabama's summary
judgment denying their Equal Protection Clause, U.S. Const. amend.
XIV, Section 1, challenge to Amendment 579 of the Alabama state
constitution, their Ex Post Facto Clause, U.S. Const. art. I,
Section 9, cl. 3, challenge to Amendment 579's disenfranchisement
provisions, and their National Voting Registration Act of 1993
("NVRA"), 52 U.S.C. Section 20501 et seq., challenge to the format
of Alabama's mail voting registration form.
The Appellants filed the instant action on Sept. 26, 2016, as a
putative class action with 15 different claims. After extensive
discovery, the District Court granted summary judgment in favor of
Alabama on all claims on Dec. 3, 2020. On appeal, the Appellants
raise only three substantive issues: (1) whether Amendment 579
eliminated the taint of discriminatory intent behind Section 182,
(2) whether Amendment 579 violates the Ex Post Facto Clause of the
U.S. Constitution, and (3) whether Alabama's mail voter
registration form violates the NVRA.
The Appellants first claim that Amendment 579's felon
disenfranchisement provision violates the Equal Protection Clause
because the re-enactment process did not adequately dissipate the
taint of the discriminatory intent behind Section 182 of the 1901
constitution. Next, they argue that the lack of a definitive list
of felonies involving moral turpitude before 2017 violated the Ex
Post Facto Clause by failing to give any Alabamian felon fair
warning of whether his or her crime involved moral turpitude.
Finally, the Appellants contend that Alabama's mail voter
registration form violates the NVRA because the form does not
explicitly list all the disqualifying felonies under Alabama law.
The parties argue about whether the District Court below correctly
drew inferences based on incontrovertible facts under the Nunez
framework, citing Nunez v. Superior Oil Co., 572 F.2d 1119, 1123-24
(5th Cir. 1978). While the Eleventh Circuit has since approved the
Nunez framework, it has also explained that its standard of review
on appeal is unaffected by any inferential conclusions reached
below. And the parties agree that the Eleventh Circuit should
review the District Court's decision in this case de novo.
Accordingly, the Eleventh Circuit proceeds under its usual standard
of review for appeals from summary judgment.
As the Appellants raise three separate issues on appeal, the
Eleventh Circuit addresses each in turn. First, it examines the
enactment of Amendment 579 and holds that it successfully
dissipated any taint from the 1901 convention. Next, it explains
that Amendment 579's felon disenfranchisement provision does not
impose punishment for purposes of the Ex Post Facto Clause. Lastly,
it concludes that Alabama's voter form "specifies each eligibility
requirement" for voting in compliance with the NVRA.
Because the Eleventh Circuit holds that (1) Amendment 579
successfully dissipated any taint from the racially discriminatory
motives behind the 1901 Alabama constitution; (2) Amendment 579
does not impose punishment for purposes of the Ex Post Facto
Clause; and (3) Alabama's mail voting registration form complies
with the NVRA, it affirms the District Court.
A full-text copy of the Court's April 26, 2023 Opinion is available
at https://rb.gy/lvjjz from Leagle.com.
AMERICAN AIRLINES: Continues to Defend Antitrust Class Suit in MA
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American Airlines Inc. disclosed in its Form 10-Q Report for the
quarterly period ending March 31, 2023 filed with the Securities
and Exchange Commission on April 27, 2023, that the Company
continues to defend itself from the antitrust class suits in the
U.S. District Court for the District of Massachusetts.
In February 2023, private party plaintiffs filed a putative class
action antitrust complaint against American and JetBlue in the U.S.
District Court for the District of Massachusetts and the U.S.
District Court for the Eastern District of New York.
The Company believes these complaints are without merit and is
defending against them vigorously.
American Airlines is a major US-based airline headquartered in Fort
Worth, Texas, within the Dallas–Fort Worth metroplex.[BN]
AMERICAN AIRLINES: Continues to Defend Antitrust Suit in E.D.N.Y.
-----------------------------------------------------------------
American Airlines Inc. disclosed in its Form 10-Q Report for the
quarterly period ending March 31, 2023 filed with the Securities
and Exchange Commission on April 27, 2023, that the Company
continues to defend itself from the antitrust class suits in the
U.S. District Court for the Eastern District of New York.
In February 2023, private party plaintiffs filed a putative class
action antitrust complaint against American and JetBlue in the U.S.
District Court for the Eastern District of New York.
The Company believes these complaints are without merit and is
defending against them vigorously.
American Airlines is a major US-based airline headquartered in Fort
Worth, Texas, within the Dallas–Fort Worth metroplex.[BN]
APPLE INC: Bid to Block $2-B Class Suit Over Battery Issues Filed
-----------------------------------------------------------------
Business Insurance reports that Apple Inc. on May 2 asked the
Competition Appeal Tribunal in London to block a $2 billion class
action lawsuit over allegations that it hid battery issues in
millions of iPhones by throttling them with software updates,
Gadgets 360 reported. The tech giant argued that the lawsuit is
baseless and the batteries of its phones were not defective, except
for a small number of iPhone 6s models for which the company
offered free battery replacements. [GN]
AT&T MOBILITY: $575K Settlement in Razo Suit Wins Final Approval
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In the case, LUIS M. SALAS RAZO, on his own behalf of and all
others similarly situated, Plaintiff v. AT&T MOBILITY SERVICES,
LLC, et al., Defendants, Case No. 1:20-cv-0172 JLT HBK (E.D. Cal.),
Judge Jennifer L. Thurston of the U.S. District Court for the
Eastern District of California:
a. grants the Plaintiff's motion for final approval of the
Settlement; and
b. grants the Plaintiffs' motion for attorney's fees and costs
from the settlement fund, costs for settlement
administration, and a service payment for the class
representative.
Razo asserts AT&T Mobility Services failed to comply with
California's wage and hour laws by failing to pay all wages due and
provide proper meal and rest breaks. He now seeks final approval of
a settlement reached in the action.
Razo was employed as a sales representative at the AT&T Mobility
Store located in Madera, California. He asserts he worked for AT&T
"for approximately eleven years" until his termination in June
2018. He alleges AT&T routinely failed to properly calculate the
overtime and double time rate of pay. Razo asserts AT&T failed to
include its employees' total compensation including bonuses and
commissions when calculating the regular rate for the purposes of
determining overtime wages owed and thus routinely underpaid
employees for overtime wages owed. He contends this underpayment
was evidenced in his paycheck and accompanying wage statement
issued June 13, 2018.
On May 29, 2019, Razo provided notice to the Labor and Workforce
Development Agency and AT&T of the specific provisions of the
California Labor Code alleged to have been violated, including the
facts and theories to support the alleged violations. He asserts
the California's Labor and Workforce Development Agency (LWDA) did
not respond to the notice.
On Aug. 27, 2019, Razo initiated the action by filing a class
complaint in Madera County Superior Court, Case No. MCV081925. He
filed an amended complaint in the state court on Jan. 8, 2020. AT&T
initiated the matter before the Court by filing a notice of removal
on Jan. 31, 2020. Razo further amended the pleadings on July 30,
2020, and Oct. 15, 2021. The Third Amended Complaint is now the
operative pleading.
Razo identifies the following causes of action in the TAC: (1)
failure to pay for all hours worked; (2) failure to pay overtime
wages; (3) failure to pay wages due at termination in violation of
Cal. Labor Code Section 201-203; (4) failure to furnish accurate,
itemized wage statement in violation of Cal. Labor Code Section
226; (5) unlawful and unfair conduct in violation of Cal. Bus. &
Prof. Code Section 17200, et seq.; and (6) civil penalties under
California's Private Attorney General Act.
Razo asserted the claims were brought on behalf of himself and
classes, including:
1. The Plaintiff Class: All persons who have been, or
currently are, employed by Defendant and who held, or hold, job
positions which Defendant have classified as non-exempt personnel
in the State of California. (The Class Period is the period from
Aug. 27, 2015, through and including the date judgment is rendered
in this matter); and
2. The Terminated Sub Class: All members of the Plaintiff
Class whose employment ended during the Class Period (The Class
Period is the period from Aug. 27, 2015, through and including the
date judgment is rendered in this matter).
On March 8, 2022, Razo filed a motion for preliminary approval of
the settlement with AT&T. Razo and AT&T agreed settle the claims of
a class defined as: "All persons who worked for AT&T Mobility
Services LLC in the State of California, while classified as
non-exempt, at any time from Nov. 2, 2021, to the date the Court
grants preliminary approval of this Settlement." However, the Court
determined Razo was not a member of the proposed settlement class,
and the conditional class could not be certified. Consequently,
approval of the settlement was denied.
Following the Court's determination, the parties executed a
"Revised Class Action and PAGA Action Settlement Agreement." Razo
filed an unopposed motion for approval of the parties' revised
agreement, and the Court granted preliminary approval. The Court
appointed Razo as the Class Representative and authorized his
request for an enhancement reward up to $10,000 subject to a
petition and review at the final approval stage. In addition, the
Court appointed the firm of Bradley/Grombacher LLP as the Class
Counsel. The Class Counsel were authorized to seek fees not to
exceed 33 1/3% of the gross settlement amount and costs up to
$10,000. Finally, the Court appointed Atticus Administration LLC as
the Settlement Administrator, and authorized costs up to $30,000
for the administration.
On Oct. 6, 2022, the Court approved the Class Notice that conveyed
this information. On Oct. 26, 2022, the Settlement Administrator
mailed the Class Notice to 5,069 Class Members. The Settlement
Administrator received six timely Requests for Exclusion from
Kellen Shaw, Natasha Alaya, Isabel Ramos, Joshua Katzen, Sumanth
Bharadwaj, and Cleveland Harris. No objections were received by
either the Settlement Administrator or the Court.
On Nov. 30, 2020, Razo filed motions for final approval of the
revised settlement agreement, approval of a service award for Razo
as the Class Representative, and for attorneys' fees and costs.
AT&T did not oppose any of the pending motions.
Pursuant to the proposed "Revised Class Action and PAGA Action
Settlement Agreement, the parties agree to a gross settlement
amount of $575,000 for a class including: All persons who either or
both: (1) worked for AT&T Mobility Services LLC in the State of
California, while classified as non-exempt, at any time from Nov.
2, 2021, to the date the Court grants preliminary approval of this
Settlement; and/or (2) filed a timely Request for Exclusion from
the class action settlement in the matter of Samuel Wallack, et.
al. v. AT&T Mobility Services, LLC, Case Number CIVSB2117915,
pending in the Superior Court for the State of California, County
of California County of San Bernardino.
The settlement funds are non-reversionary, and AT&T will also pay
the employer's share of payroll taxes separately from and in
addition to the Gross Settlement Amount. The parties agree the
settlement fund will cover payments to class members, including
enhanced compensation to Razo as the Class Representative.
Specifically, the Settlement provides for the following payments
from the gross settlement amount: The Class Representative will
receive a service payment up to $10,000; the Class Counsel will
receive $191,666.76 in attorneys' fees, which equals 33 1/3 % of
the gross settlement amount, and expenses up to $10,000; the
California Labor and Workforce Development Agency will receive
$7,500 from the total PAGA payment of $10,000; and the Settlement
Administrator will receive up to $30,000 for fees and expenses.
After these payments, the remaining money would be distributed as
settlement shares to class members. Shares will be calculated on a
pro rata basis for Class Members.
The appointed Settlement Administrator will distribute payment by
mailing checks to all Class Members and Aggrieved Employees. Checks
must be cashed within 90 days of the mailing. If any check remains
uncashed after the 90-period, the money does not revert to AT&T.
Rather, "the Settlement Administrator will distribute the unclaimed
funds represented by the uncashed check to the California State
Controller's Office, Unclaimed Property Division in the name of the
Class Member, where the Class Member or Aggrieved Employee can
later claim their funds."
The Settlement provides that Razo and Class Members, other than
those who elect not to participate in the Settlement, will release
AT&T from claims. The release for Razo encompasses more claims than
those identified for Settlement Class Members, because he agreed to
release any claims known and unknown against AT&T, not just those
claims constrained to the facts alleged in this lawsuit. Thus,
claims released by Razo -- but not the Settlement Class Members --
include any claims arising under the Americans with Disabilities
Act, Title VII of the Civil Rights Act of 1964, 42 U.S.C. Section
1981, and the Employee Retirement Income Security Act.
Judge Thurston finds that the factors identified under Rule 23 and
by the Ninth Circuit weigh in favor of final approval of the
Settlement, and the terms of the Settlement are fair, reasonable,
and adequate. Therefore, the request for final approval of the
Settlement Agreement is granted.
Certification of the Settlement Class is granted, with the class
defined as follows: All persons who either or both: (1) worked for
AT&T Mobility Services LLC in the State of California, while
classified as non-exempt, at any time from Nov. 2, 2021, to Sept.
21, 2022; and/or (2) filed a timely Request for Exclusion from the
class action settlement in the matter of Samuel Wallack, et. al. v.
AT&T Mobility Services, LLC, Case Number CIVSB2117915, pending in
the Superior Court for the State of California, County of
California County of San Bernardino.
Pursuant to their requests, Kellen Shaw, Natasha Alaya, Isabel
Ramos, Joshua Katzen, Sumanth Bharadwaj, and Cleveland Harris are
excluded from the Settlement Class.
The settlement of $575,000 appears sufficiently robust -- with more
than $330,000 going to Class Members -- such that Judge Thurston
finds the purposes of PAGA to address the alleged labor violations
are fulfilled by the proposed agreement. The Settlement properly
designates 75% of the PAGA funds -- in the amount of $10,000 from
the Gross Settlement Amount -- to the LWDA and 25% to aggrieved
employees. Accordingly, Judge Thurston finds approval of the PAGA
payment is also appropriate.
Pursuant to the Settlement, the Class Counsel may seek attorney's
fees in the amount of 33 1/3 % of the Gross Settlement Amount, or
$191,666.67. Judge Thurston finds that the time and labor, results
obtained, risks undertaken by skilled Class Counsel, and complexity
of the issues weigh in favor of the fees requested. In addition,
the lodestar -- which is a presumptively reasonable amount --
supports the requested upward departure from the benchmark. The
fees requested are fair, adequate, and reasonable as required under
Rule 23. Accordingly, the Class Counsels' request for fees is
granted.
The Class Counsel requests $4,747.58 in costs. Because the costs
incurred are reasonable and do not exceed the amount previously
authorized, Judge Thurston grants the request for litigation costs
in the amount of $4,747.10.
Razo also seeks approval of a payment of $27,047 to the Settlement
Administrator for its costs incurred. Based upon the information
provided regarding the tasks completed by the Settlement
Administrator, Judge Thurston finds the requested Settlement
Administration costs are reasonable. Therefore, she grants the
request for $27,047 for the Settlement Administrator.
Finally, the Settlement provides that Razo may apply for a service
payment of $10,000, to be paid out of the maximum Gross Settlement
Amount. Judge Thurston holds that a service payment of $5,000 for
Razo is appropriate in light of the time expended, tasks taken,
benefit to the class, and the sacrifice of his own claim. She says
the modified amount is fair, reasonable, and adequate. Thus, Razo's
request for a service payment as class representative is granted in
the modified amount of $5,000.
The action is dismissed with prejudice, with each side to bear its
own costs and attorneys' fees except as otherwise provided by the
Settlement and ordered by the Court.
The Clerk of Court is directed to close the action.
The Court retains jurisdiction to consider any further applications
arising out of or in connection with the Settlement.
A full-text copy of the Court's April 26, 2023 Order is available
at https://rb.gy/fxzmq from Leagle.com.
AVOCADO MATTRESS: Pina Files False Advertisement Suit in N.D. Cal.
------------------------------------------------------------------
Corrado Rizzi of ClassAction.org reports that a proposed class
action alleges Avocado Mattress has falsely advertised its latex
mattresses, pillows and mattress toppers as free of synthetic and
nontoxic chemicals in a case - captioned Pina et al. v. Avocado
Mattress L.L.C.
The 57-page complaint says that contrary to Avocado's public
statements, "virtually every stage of the manufacturing process,"
from "harvesting and stabilization to vulcanization and drying,"
involves the use of synthetic chemicals, some of which are "known
toxins" that end up in the company's products.
Although Avocado repeatedly touts its products, among other
"natural," "eco" and "organic" representations, as "Made Safe
Certified," a designation that the company says signifies that the
items have been developed with "100 percent healthy ingredients,"
this claim is false, the case alleges. In particular, the suit
contends that the "Made Safe Certified" designation, overseen by
the group Nontoxic Certified, does not mean that a product is made
with "100 percent healthy ingredients," only that the product's
ingredients have been cross-referenced against a database of known
and suspected toxins.
"It is unclear how Avocado obtained its MADE SAFE certification,
given the toxic materials in the Products," the lawsuit says.
As the case tells it, Avocado "cannot claim ignorance" as to its
products containing synthetic and/or harmful chemicals given that
it repeatedly boasts that it controls the entire production chain
for the items, "from the growing of rubber trees, to the harvesting
of the natural rubber, to the manufacturing of the final products."
"Avocado intended to mislead consumers with its false advertising,
and it has done so for years," the suit charges.
The lawsuit claims the following Avocado products are falsely
advertised by the company:
Avocado's mattresses (marketed as the Avocado Green Mattress, Eco
Organic Mattress, Luxury Organic Mattress, Eco Organic Kids
Mattress, Eco Organic Crib Mattress, Organic Crib Mattress, Luxury
Organic Crib Mattress, Avocado Vegan Mattress, and Avocado Latex
Mattress);
Avocado's pillows (marketed as the Avocado Green Pillow, Avocado
Molded Latex Pillow, Luxury Organic Plush Pillow, Organic Latex
Wedge Pillow Set, Organic Toddler Pillow, Organic Mini Pillow, and
Mini Molded Latex Pillow); and
Avocado's mattress toppers (marketed as the Eco Organic Mattress
Topper, Organic Latex Mattress Topper, Luxury Organic Mattress
Topper, and Vegan Mattress Topper).
The case goes on to say that despite comparing its products to
those that use petroleum-based ingredients, Avocado "neglects to
mention that its own products contain significant amounts of
hydrocarbon oil," which is petroleum-based.
Further, Avocado's ad content is "designed to mislead consumers"
into believing its manufacturing process is entirely natural and
chemical-free, the suit alleges. Online, the company even shows
images that purport to show raw latex being mixed into a foam and
poured into molds, the case relays.
"At no time does Avocado disclose to consumers that it uses
chemicals—let alone toxic chemicals—during the manufacturing
process, and that those chemicals end up in the final Products that
consumers purchase and use," the suit claims.
According to the lawsuit, lab testing commissioned by the
plaintiff's lawyers found that Avocado's latex Green mattress
contains "a litany of synthetic chemicals," including Wingstay-L,
pentyl furan, ZDEC, MBT/MBTS, DPG, and naphthenic hydrocarbon oils.
The filing summarizes that it is "commercially infeasible" for
Avocado or anyone else to make a latex mattress using only rubber
from a rubber tree, as the rubber must be subject to vulcanization,
wherein the rubber is cross-linked with a chemical such as sulfur,
for stability.
"Because of Defendant's misrepresentations and deception,
Plaintiffs and Class Members purchased the Avocado Products over
competing products and paid a premium for those Products. Had
Plaintiffs and Class Members known that the Products were not
'natural,' 'organic,' 'non-toxic,' 'certified organic,' 'healthy,'
'eco,' 'green,' 'pure,' and/or 'pure & natural,' they would not
have purchased the Products, or they would have paid significantly
less for them."
The lawsuit looks to cover all persons who bought any of the
Avocado Mattress products listed on this page in the United States.
[GN]
BOARDRIDERS INC: Discloses Video Viewing Habits, Cantu Suit Alleges
-------------------------------------------------------------------
JESSE CANTU, individually and on behalf of all others similarly
situated, Plaintiff v. BOARDRIDERS, INC., a Delaware Corporation,
Defendant, Case No. 2:23-cv-03162 (C.D. Cal., April 26, 2023)
arises out of the Defendant's violations of the Video Privacy
Protection Act.
Allegedly, the Defendant disclosed Plaintiff's video viewing habits
to Google and Facebook. When Plaintiff played the videos on the
Website, Defendant knowingly disclosed event data, which recorded
and disclosed the videos' title, description, and URL. Alongside
this event data, Defendant also disclosed identifiers and
personally identifiable information for Plaintiff in violation of
the VPPA, the suit asserts.
The Defendant is a for-profit Delaware corporation with its
principal place of business in Huntington Beach, CA. [BN]
The Plaintiff is represented by:
Scott J. Ferrell, Esq.
PACIFIC TRIAL ATTORNEYS A Professional Corporation
4100 Newport Place Drive, Ste. 800
Newport Beach, CA 92660
Telephone: (949) 706-6464
Facsimile: (949) 706-6469
E-mail: sferrell@pacifictrialattorneys.com
BOOHOO.COM USA: Agrees to Settle Fake Discounts Suit for $197-M
---------------------------------------------------------------
Jordan Hart of Business Insider reports that fast fashion retailer
Boohoo will pay millions to settle a class-action lawsuit alleging
the company promoted its products using fake discounts.
The UK-based company -- including its PrettyLittleThing, NastyGal,
and boohooMAN brands -- was hit with the lawsuit in May 2020,
claiming the retailer broke California laws by displaying garments
as marked down even though they'd never been sold for the listed
original price.
Boohoo announced it would settle the case for $197 million in
April, but without admission of guilt, according to the claims
administrator, KCC Class Action Services. Those eligible to receive
some of the settlement include California residents who purchased
products from the Boohoo brands between April 2016 and June 2022.
"Defendants deny all of the allegations made in the Actions. The
Court has not determined who is right," a statement from KCC Class
Action Services read. "Rather, the Parties have agreed to settle
the lawsuits to avoid the uncertainties and expenses associated
with ongoing litigation."
The money will be split among over nine million individuals in the
form of gift cards. There will be an estimated 11.3 million gift
cards distributed, and each card will have $17.45 for whichever
Boohoo-owned brand the consumer shopped at, Business of Fashion
reported.
Advertising and e-commerce lawyer Robert Freund took to Twitter to
break down the suit's allegations that Boohoo violated the Federal
Trade Commission Act.
"Using fake reference prices to run sales is illegal under the FTC
Act and California's laws," Freund wrote. "The FTC rule says a
former price needs to be 'the actual, bona fide price at which the
article was offered to the public on a regular basis for a
reasonably substantial period of time.'"
He continued: "Probably hundreds of these cases have been filed.
Certainly, hundreds of demand letters have been sent. If a brand
hasn't been sued for it yet, they either will be, or they're just
lucky." [GN]
BOSTON UNIVERSITY: Dutra Appeals Summary Judgment in Refund Suit
----------------------------------------------------------------
Plaintiffs JULIA DUTRA, et al., filed an appeal from the District
Court's Memorandum and Order and Judgment dated April 7, 2023
entered in the lawsuit styled IN RE: BOSTON UNIVERSITY COVID-19
REFUND LITIGATION, Civil Action No. 20-10827-RGS, in the United
States District Court for the District of Massachusetts.
The suit is brought as result of the Defendants' decision to close
campus, constructively evict students, and transition all classes
to an online/remote format as a result of the COVID-19 pandemic.
The Plaintiff seeks refunds of the amount she and other members of
the Class are owed on a pro-rata basis, together with other
damages.
As reported in the Class Action Reporter on April 7, 2023, Judge
Richard C. Stearns entered a Memorandum & Order (a) granting the
Defendant's Motion to Exclude the Expert Opinion of Dr. Hal J.
Singer and Motion for Summary Judgment; and (b) denying as moot the
Plaintiffs' Motion for Class Certification and Motion for Summary
Judgment.
Judge Stearns found that the Plaintiffs offer only the opinion of
Dr. Singer to establish the amount of any possible restitution
damages. The Court, however, has already concluded that Dr.
Singer's opinion does not adequately measure damages for breach of
the alleged contractual provisions asserted. Dr. Singer's
testimony, thus, is insufficient to create a genuine dispute of
material fact as to the existence or amount of any restitution
damages. Accordingly, Judge Stearns entered summary judgment in
BU's favor.
The appellate case is captioned as Dutra, et al. v. Trustees of
Boston University, Case No. 23-1385, in the United States Court of
Appeals for the First Circuit, filed on April 26, 2023.
The briefing schedule in the Appellate Case state that appearance
form, docketing statement, and transcript report/order form were
due May 10, 2023.[BN]
Plaintiffs-Appellants JULIA DUTRA, individually and on behalf of
all others similarly situated, et al., are represented by:
Blake G. Abbott, Esq.
Paul Doolittle, Esq.
Eric M. Poulin, Esq.
Roy T. Willey, IV, Esq.
POULIN WILLEY ANASTOPOULO LLC
32 Ann St
Charleston, SC 29403
Telephone: (843) 614-8888
- and -
Richard E. Levine, Esq.
STANZLER LEVINE LLC
37 Walnut St., Ste 200
Wellesley, MA 02481
Telephone: (617) 482-3198
- and -
Patrick F. Madden, Esq.
BERGER MONTAGUE PC
1818 Market St., Ste 3600
Philadelphia, PA 19103-0000
Telephone: (215) 875-3000
- and -
Conor B. McDonough, Esq.
HECHT PARTNERS LLP
125 Park Ave., 25th Fl
New York, NY 10017
Telephone: (212) 851-6821
Defendant-Appellee TRUSTEES OF BOSTON UNIVERSITY is represented
by:
Christine S. Collins, Esq.
Lisa A. Tenerowicz, Esq.
BOSTON UNIVERSITY
125 Bay State Rd
Boston, MA 02215-0000
Telephone: (617) 353-2326
- and -
Marina Eudjienii Lev, Esq.
Shon Morgan, Esq.
Crystal Nix-Hines, Esq.
Kathleen M. Sullivan, Esq.
Scott L. Watson, Esq.
QUINN EMANUEL URQUHART & SULLIVAN LLP
865 S Figueroa St., 10th Fl
Los Angeles, CA 90017-0000
Telephone: (213) 443-3000
- and -
Alexander Hale Loomis, Esq.
Harvey J. Wolkoff, Esq.
QUINN EMANUEL URQUHART & SULLIVAN LLP
111 Huntington Ave., Ste 520
Boston, MA 02199
Telephone: (617) 712-7100
CAPITAL ONE: Opposition to Class Cert Bid Extended to June 1
------------------------------------------------------------
In the class action lawsuit captioned as McNeil v. Capital One
Bank, N.A., Case No. 1:19-cv-00473-NRM-TAM (E.D.N.Y.), the Parties
ask the Court to enter an order modifying the current schedule to
include the following deadlines for the Plaintiff's motion:
-- Motion to Exclude Opinions of May 2, 2023
William Albert:
-- Opposition to Motion: June 1, 2023
-- Reply in Support of Motion: June 15, 2023
On March 23, 2023, the Court entered a modification to the class
certification briefing and related Daubert briefing schedule, which
currently governs the case. On March 23, 2023, the Defendant served
its Opposition to its Motion for Class Certification, which
incorporated the proffered Expert Report of William E. Albert. He
was previously disclosed as a defense expert witness on merits, but
Defendant decided to also use his report to oppose class
certification.
Capital One is a diversified bank that offers a broad array of
financial products and services to consumers, small businesses and
commercial clients.
A copy of the Court's order dated April 25, 2023 is available from
PacerMonitor.com at https://bit.ly/3Ho8mgg at no extra charge.[CC]
The Plaintiff is represented by:
Jeffrey M. Ostrow, Esq.
Jonathan M. Streisfeld, Esq.
Kopelowitz Ostrow, Esq.
FERGUSON WEISELBERG GILBERT
One West Las Olas Blvd., Suite 500
Fort Lauderdale, FL 33301
E-mail: ostrow@kolawyers.com
streisfeld@kolawyers.com
- and -
Andrea R. Gold, Esq.
Hassan Zavareei, Esq.
TYCKO & ZAVAREEI LLP
1828 L Street N.W., Suite 1000
Washington, D.C. 20036
E-mail: agold@tzlegal.com
hzavareei@tzlegal.com
- and -
Jeffrey D. Kaliel, Esq.
Sophia G. Gold, Esq.
KALIEL PLLC
1875 Connecticut Ave., NW, 10th Floor
Washington, DC 20009
E-mail: jkaliel@kalielpllc.com
sgold@kalielpllc.com
- and -
Steven M. Nathan, Esq.
Scott Allan Martin, Esq.
James Pizzirusso, Esq.
HAUSFELD LLP
33 Whitehall St., 14th Floor
New York, NY 10004
E-mail: snathan@hausfeld.com
smartin@hausfeld.com
jpizzirusso@hausfeld.com
The Defendant is represented by:
James R. McGuire, Esq.
Sarah N. Davis, Esq.
Lauren L. Erker, Esq.
Brian J. Wegrzyn, Esq.
ORRICK, HERRINGTON & SUTCLIFFE LLP
405 Howard Street
San Francisco, CA 94105
Telephone: (415) 619-3500
Facsimile: (415) 619-3505
E-mail: jmcguire@orrick.com
sdavis@orrick.com
lerker@orrick.com
bwegrzyn@orrick.com
CELLCO PARTNERSHIP: Consumer Class Suit Arbitration Clause Rejected
-------------------------------------------------------------------
Kelly Magnus Purcaro of Greenspoon Marder LLP reports that on May
1, 2023, in the Achey v. Cellco P'ship opinion, selected for
publication, the NJ Appellate Court reversed the Trial Courts
decision to enforce arbitration in a consumer class action
asserting New Jersey Consumer Fraud Act ("NJCF") claims.
In short, Verizon customers brought a putative class action against
the wireless company for violations of the NJCFA and related
statutes for failure to disclose monthly administrative fee charges
to customers. Defendants moved to compel arbitration pursuant to
the relevant clause in the customer contracts, which contracts
(among other things) also limited consumer damages and required all
claims to be asserted within 180 days. Notably, in the event of the
filing of 25 or more similar claims, the arbitration clause
contained a bellwether provision allowing Defendants to select five
cases to first proceed to arbitration while staying the others and
preventing the filing of additional arbitrations, until completion
of the same. If the remaining arbitrations are not yet resolved,
Defendants may select another five for another round of bellwethers
while continuing restrictions on additional arbitration proceedings
and filings. In addition, Defendants specifically reserved the
right to call upon the Courts to enforce the enjoining mass
arbitration filings.
The Trial Court struck the limitation on damages provision because
it impermissibly stripped the plaintiffs of their rights to treble
damages under the NJCFA but enforced the arbitration clause.
The Appellate Court affirmed the decision below with respect to
striking the limitation on damages provision. However, the
Appellate Division reversed the trial court's order enforcing the
arbitration clause. Returning to New Jersey's historical position
on consumer protection, the Appellate Division "at the outset"
called out the unequal bargaining power inherent in contracts of
adhesion such as this. Then, citing the recent United States
District Court for the Northern District of California decision in
MacClelland v. Cellco P'ship, 609 F. Supp. 3d 1024 (N.D. Cal. 2022)
as persuasive authority, the Appellate Division found that "the
entire arbitration agreement was permeated by unconscionability."
Indeed, in addition to shortening the statute of limitations on
claims and insulating itself from liability under the CFA,
plaintiffs' counsel noted that his clients "would be required to
wait 145 years to file their claims, until the preceding 2,537
claims brought by plaintiffs' counsel have been arbitrated pursuant
to the bellwether process" contained within the arbitration
clause.
Some may say that this decision signals a changing of the tides in
judicial enforcement of arbitration clauses. FAA pre-emption has
taken center stage over the past decade or more, and its
implications on class action litigation have been far-reaching. It
is clear to class action practitioners that the Verizon arbitration
clause in issue here was designed, in part, to combat the emergence
of mass arbitrations which has become an increasingly more popular
counterattack by the plaintiffs' bar following the debilitating
blow to class arbitrations following the Lamps Plus decision. This
decision makes it clear that arbitration enforceability can only go
so far - at least in the New Jersey State Appellate Court.
It will be interesting to see what lies ahead in the Supreme Court.
For now, consumers may have seen a bright light at the end of the
tunnel and businesses should be mindful to review their contracts
to comport with this most recent swing of the arbitration pendulum.
[GN]
CHARTER COMMUNICATIONS: Appeals Class Cert. Ruling in Sansone Suit
------------------------------------------------------------------
Charter Communications, Inc., et al., filed an appeal from the
District Court's April 10, 2023 Order entered in the lawsuit
entitled 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, in the United States District Court for the
Southern District of California, San Diego.
On December 6, 2017, Plaintiffs Jennifer M. Sansone and Baldemar
Orduno, Jr., filed the First Amended Class Action Complaint 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 a Motion for Class
Certification. In the motion, Plaintiffs request that the Court
certify a class with respect to the first and sixth claims for
relief against Defendants TWCA and CCI only.
As previously reported in the Class Action Reporter, 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 on April 10, 2023.
According to the Court, the Plaintiffs' claims in this case are
based on the same course of conduct as those of Vacation Pay Class
Members: TWCA and CCI's alleged failure to pay vested vacation
wages when Plaintiffs and the Vacation Pay Class were terminated
from their employment with TWCA in December 2016. The Plaintiffs
share the same injury as the Vacation Pay Class and the Court has
excluded individuals who are subject to TWCA's arbitration
agreement. The Court, hence, concluded that the typicality
requirement is satisfied in this case.
The appellate case is captioned as Jennifer Sansone, et al. v.
Charter Communications, Inc., et al., Case No. 23-80033, in the
United States Court of Appeals for the Ninth Circuit, filed on
April 25, 2023.[BN]
Defendants-Petitioners CHARTER COMMUNICATIONS, INC., CHARTER
COMMUNICATIONS, LLC, and TWC ADMINISTRATION LLC are represented
by:
Joseph W. Ozmer, II, Esq.
Paul G. Sherman, Esq.
KABAT CHAPMAN & OZMER, LLP
171 17th Street, NW Suite 1550
Atlanta, GA 30363
Telephone: (470) 447-0603
Plaintiffs-Respondents JENNIFER M. SANSONE and BALDEMAR ORDUNO,
Jr., individually and on behalf of other members of the public
similarly situated, are represented by:
Matthew S. Dente, Esq.
DENTE LAW P.C.
5040 Shoreham Place
San Diego, CA 92122
Telephone: (619) 550-3475
- and -
London Meservy, Esq.
MESERVY LAW, P.C.
401 W. A Street, Suite 1712
San Diego, CA 92101
Telephone: (858) 779-1276
- and -
Justin Alan Morello, Esq.
3170 Fourth Ave., Suite 250
San Diego, CA 92103
Telephone: (619) 277-4677
COVERALL NORTH: Appeals Denial of Bid to Dismiss Bille Suit
-----------------------------------------------------------
COVERALL NORTH AMERICA, INC. filed an appeal from the District
Court's Ruling on motions to seal, to confirm arbitration award,
and to dismiss for lack of jurisdiction dated March 30, 2023,
entered in the lawsuit entitled CARIBE BILLE, and QUINCY REEVES,
individually and on behalf of all other similarly situated
individuals, Plaintiff v. COVERALL NORTH AMERICA, INC., Defendant,
Case No. 3:19-cv-00092 (JCH), in the United States District Court
for the District of Connecticut.
The suit, filed on January 17, 2019, seeks to recover
business-related expenses unlawfully deducted, and to collect all
applicable statutory penalties, for violations of the Connecticut
Minimum Wage Act.
Coverall employed Bille and Reeves as cleaning workers for its
commercial customers in Connecticut. The Plaintiffs claim that
Coverall required them to sign "franchise agreements" that
classified them as independent contractors, rather than employees
and charged them franchise fees, interest, insurance and
administration charges deducted from their pay and deprived
reimbursement of their necessary business expenditures for cleaning
supplies and equipment.
As reported in the Class Action Reporter on April 4, 2022, Judge
Janet C. Hall of the U.S. District Court for the District of
Connecticut granted in part the Plaintiffs' Motion to Lift the Stay
filed in the case. The Court lifted the stay as to Reeves' claims
against Coverall regarding a Ruling dated March 12, 2020, wherein
the Court stayed the Plaintiffs' action and compelled arbitration.
On March 30, 2023, Judge Janet C. Hall entered an Order granting
Plaintiff Bille's June 8, 2022 motion to confirm arbitration award.
In addition, the Court denied Bille's June 7, 2022 motion to seal
as well as Coverall's July 29, 2022 motion to dismiss for lack of
jurisdiction. The Clerk was ordered to unseal the arbitration award
and the order on the motion for preliminary summary judgment.
The appellate case is captioned as Bille v. Coverall North America,
Inc., Case No. 23-672, in the United States Court of Appeals for
the Second Circuit, filed on April 24, 2023.[BN]
Defendant-Appellant COVERALL NORTH AMERICA, INC. is represented
by:
Matthew J. Iverson, Esq.
DLA PIPER LLP (US)
33 Arch Street, 26th Floor
Boston, MA 02110-1447
Telephone: (617) 406-6000
Facsimile: (617) 406-6100
E-mail: matthew.iverson@dlapiper.com
- and -
Norman M. Leon, Esq.
DLA PIPER LLP (US)
444 West Lake Street, Suite 900
Chicago, IL 60606
Telephone: (312) 368-4000
Facsimile: (312) 236-7516
E-mail: norman.leon@dlapiper.com
- and -
James R. Smart, Esq.
MCELROY, DEUTSCH, MULVANEY & CARPENTER, LLP
30 Jelliff Lane
Southport, CT 06890-1436
Telephone: (203) 319-4000
Facsimile: (203) 259-0251
E-mail: jsmart@mdmc-law.com
CP IV WATERFRONT: Appeals Lethgo Suit Remand Order to 9th Cir.
--------------------------------------------------------------
CP IV WATERFRONT, LLC, DBA KAPILINA BEACH HOMES, et al. are taking
an appeal from a court order granting the Plaintiff's motion to
remand in the lawsuit entitled Andra Lethgo, individually and on
behalf of all others similarly situated, Plaintiff, v. CP IV
Waterfront, LLC, et al., Defendants, Case No.
1:22-cv-00052-JAO-WRP, in the U.S. District Court for the District
of Hawaii.
This putative class action arises from the fuel leaks from the
United States Navy's Red Hill Bulk Fuel Storage Facility, which
contaminated water distributed through the Navy's Joint Base Pearl
Harbor-Hickam Water system and supplied to homes leased by
Plaintiff Andra Lethgo and others in the Kapilina Beach Homes
residential community.
On Feb. 2, 2022, the Defendants removed this action from the First
Circuit Court pursuant to the Class Action Fairness Act.
On Mar. 2, 2022, the Plaintiff filed a motion to remand the case to
the First Circuit Court, which the Court granted in part through an
Order entered by Judge Jill A. Otake on June 16, 2022. The Court
granted the motion to the extent that the federal officer removal
statute does not support removal and granted the Plaintiff's
request for limited jurisdictional discovery.
On Mar. 20, 2023, the Court remanded the case to the state court
for further proceedings.
The appellate case is captioned Andra Lethgo v. CP IV Waterfront,
LLC, et al., Case No. 23-15583, in the United States Court of
Appeals for the Ninth Circuit, filed on April 21, 2023.
The briefing schedule in the Appellate Case states that:
-- Appellants CP IV Waterfront, LLC and GREP Southwest, LLC
Mediation Questionnaire was due on April 28, 2023;
-- Appellants CP IV Waterfront, LLC and GREP Southwest, LLC
opening brief is due on June 20, 2023;
-- Appellee Andra Lethgo answering brief is due on July 20,
2023; and
-- Appellant's optional reply brief is due 21 days after service
of the answering brief. [BN]
Plaintiff-Appellee ANDRA LETHGO, individually and on behalf of all
others similarly situated, is represented by:
Michael Green, Esq.
LAW OFFICE OF RICHARD D. GRONNA
841 Bishop Street, Suite 2201
Honolulu, HI 96813
Telephone: (808) 521-3336
- and -
Patrick Kyle Smith, Esq.
LAW OFFICE OF KYLE SMITH
604 Ilimano Street
Kailua, HI 96734
Telephone: (808) 799-5175
Defendants-Appellants CP IV WATERFRONT, LLC, dba Kapilina Beach
Homes, et al. are represented by:
Calvert G. Chipchase, Esq.
Mallory Martin, Esq.
Lisa Swartzfager, Esq.
CADES SCHUTTE, LLP
1000 Bishop Street, Suite 1200
Honolulu, HI 96813
Telephone: (808) 521-9200
ELASTOS FOUNDATION: Closing of Fact Discovery Adjourned to July 11
------------------------------------------------------------------
In the class action lawsuit captioned as MARK OWEN, Individually
and On Behalf of All Others Similarly Situated, v. ELASTOS
FOUNDATION, FENG HAN, RONG CHEN, FAY LI, and BEN LEE Case No.
1:19-cv-05462-GHW-BCM (S.D.N.Y.), the Hon. Judge Barbara Moses
entered a revised scheduling order as follows:
1. The date by which Defendants shall respond to the
Plaintiffs'
Second Requests for Admissions is adjourned from April 26,
2023
to June 21, 2023.
2. The deposition of Zach Warsavage is adjourned from April 27,
2023 to no later than June 22, 2023.
3. The date by which the Parties shall provide the Court a
further
update on the status of their efforts to agree upon the
timing
and order of class certification motion practice is adjourned
from April 28, 2023 to June 23, 2023.
4. The deposition of Rong Chen (individually, as Rule 30(b)(6)
designee for Defendant Elastos Foundation, and as Rule
30(b)(6)
designee for Elastos, Incorporated) in Seattle, Washington is
adjourned from May 1, 2, 3, 2023 to no later than June 26,
27,
28, 2023.
5. The close of fact discovery is adjourned from May 16, 2023 to
July 11, 2023.
6. The deadline for the disclosure of expert evidence, including
the identities and written reports of experts, as required by
Fed. R. Civ. P. 26(a)(2)(A), (B), or (C), is adjourned from
June
16, 2023 to August 11, 2023.
7. The Plaintiffs' spoliation motion, the Defendants' spoliation
opposition, and The Plaintiffs' spoliation reply briefs are
adjourned from June 30, 2023, July 28, 2023, and August 18,
2023, respectively, to August 25, 2023, September 22, 2023,
and
October 13, 2023, respectively.
Elastos Foundation is an internet operating system focusing on
re-decentralizing internet with blockchain to secure identity.
A copy of the Court's order dated April 25, 2023, is available from
PacerMonitor.com at https://bit.ly/42crt4Y at no extra charge.[CC]
ELI LILLY & CO: Antitrust Class Suit Ongoing in W.D.N.Y.
--------------------------------------------------------
Eli and Lilly and Co. disclosed in its Form 10-Q Report for the
quarterly period ending March 31, 2023 filed with the Securities
and Exchange Commission on April 27, 2023, that an antitrust class
suit is ongoing in the U.S. District Court for the Western District
of New York.
In July 2021, the Company, along with Sanofi-Aventis U.S., LLC
(Sanofi), Novo Nordisk Inc. (Novo Nordisk), and AstraZeneca
Pharmaceuticals LP (AstraZeneca), were named as a defendant in a
purported class action lawsuit filed in the U.S. District Court for
the Western District of New York by Mosaic Health, Inc. alleging
antitrust and unjust enrichment claims related to the defendants'
340B distribution programs.
The Company, with Sanofi, Novo Nordisk, and AstraZeneca, filed a
motion to dismiss the lawsuit, which was granted in September 2022.
In October 2022, the plaintiffs filed a motion for leave to amend
their complaint.
This matter is ongoing.
Eli Lilly & Company is a manufacturer of pharmaceutical products,
headquartered in Indianapolis, Indiana.
ENERGIZER HOLDINGS: Portable Power Sues Over Anticompetitive Scheme
-------------------------------------------------------------------
PORTABLE POWER, INC., on behalf of itself and those similarly
situated, v. ENERGIZER HOLDINGS, INC.; and WAL-MART, INC., Case No.
3:23-cv-02091 (N.D. Cal., Apr. 28, 2023) alleges that Energizer and
Walmart agreed to a scheme to slow price decline and ensure that
both companies could charge higher-than-competitive prices for
Battery Product, in violation of the federal and California
antitrust and consumer protection laws.
According to the complaint, the Scheme had two components, to which
Energizer agreed under pressure from Walmart. First, Energizer
agreed to inflate its wholesale prices above competitive levels for
Energizer Battery Products to its direct customers other than
Walmart. Energizer's inflated Battery-Product prices forced
Portable Power and other retailers to charge higher prices at
retail than they otherwise would have. Second, Energizer agreed to
provide Walmart additional protection from price competition.
Energizer agreed not only to inflate its wholesale prices for
Battery Products, but also to require its direct purchasers to
charge their retail customers no less than the price Walmart
charged for Energizer Battery Products, even if Walmart prices were
well above the wholesale prices that the non-Walmart direct
purchasers paid Energizer, the Plaintiff asserts.
Accordingly, the Scheme has been in effect from as early as January
2018 and continues to the present. By April 2018, Energizer had
increased its prices by over 8% from the prior year. The Plaintiff
brings suit on behalf of itself, and on behalf of national and
California classes of direct purchasers, to recover treble the
overcharges they paid and to enjoin the Defendants' unlawful
conduct, says the suit.
Plaintiff Portable Power sells batteries from its offices in San
Fernando, California. Portable Power bought Energizer Battery
Products at wholesale from Energizer and sold them in retail
competition with Walmart.
Energizer is a manufacturer of disposable batteries based in St.
Louis, Missouri.[BN]
The Plaintiff is represented by:
Todd M. Schneider, Esq.
Jason H. Kim, Esq.
Matthew S. Weiler, Esq.
Mahzad K. Hite, Esq.
SCHNEIDER WALLACE
COTTRELL KONECKY LLP
2000 Powell Street, Suite 1400
Emeryville, CA 94608
Telephone: (415) 421-7100
E-mail: TSchneider@schneiderwallace.com
JKim@schneiderwallace.com
MWeiler@schneiderwallace.com
MHite@schneiderwallace.com
- and -
Joshua P. Davis, Esq.
BERGER MONTAGUE PC
505 Montgomery St., Ste. 625
Telephone: (800) 424-6690
E-mail: jdavis@bm.net
- and -
Rosemary M. Rivas, Esq.
Kyla J. Gibboney, Esq.
GIBBS LAW GROUP LLP
1111 Broadway, Suite 2100
Oakland, CA 94607
Telephone: (510) 350-9700
E-mail: rmr@classlawgroup.com
kjg@classlawgroup.com
ERIC SABREE: Court Severs Bowles' Class Action Claims
-----------------------------------------------------
In the class action lawsuit captioned as TONYA BOWLES, et al, v.
ERIC R. SABREE, et al, Case No. 2:23-cv-10973-LVP-KGA (E.D. Mich.),
the Hon. Judge Linda v. Parker entered an order as follows:
1. Bowles' claims, on behalf of herself and the Wayne County
Class
against Wayne County and Eric Sabree shall be severed from
this
action pursuant to F.R.C.P. 21.
2. The Clerk of the Court shall assign a new case number for
these claims against the Wayne County defendants and mark the
new case as related to this original action and assign it to
the
undersigned judge.
3. From the date notice of the new case number is given, Class
Counsel shall have 30 days to pay the appropriate filing fee,
if
any, and file an amended complaint in that new case, which
will
not contain any new claims nor parties and be directed
against
the Wayne County defendants only.
4. All prior rulings of the Court in this matter will be
applicable
in the severed case and all appellate rights shall be
preserved,
including the Wayne County defendants appeals before the
Sixth
Circuit set forth above, except that the Wayne County
defendants
will withdraw, and immediately dismiss their appeal regarding
the Oakland County Settlement, and thereafter waive any right
they allege to have to appeal the Oakland County Settlement
and
related attorney fees and service fees among Class Counsel,
The
Plaintiff Taylor and others and Oakland County..
The Plaintiff Bowles, on behalf of herself and a proposed class,
sought redress against Wayne County and its treasurer, Eric Sabree,
arising out of the foreclosure of her real property in Wayne County
for unpaid real property taxes.
The Plaintiff Taylor, on behalf of himself and a proposed class,
sought redress against Oakland County and its treasurer, Andrew
Meisner, for substantially the same claims relating to his Oakland
County Property. Wayne County and Mr. Sabree have previously sought
to sever Mr. Taylor's claims against them into a separate action.
A copy of the Court's order dated April 25, 2023 is available from
PacerMonitor.com at https://bit.ly/41PFw0J at no extra charge.[CC]
EXPRESS SCRIPTS: Perez Appeals Summary Judgment Ruling to 3rd Cir.
------------------------------------------------------------------
DIANE PEREZ is taking an appeal from a court order granting the
Defendants' motion for reconsideration in the lawsuit entitled
Diane Perez, individually and on behalf of all others similarly
situated, Plaintiff, v. Express Scripts Inc., et al., Defendants,
Case No. 2-19-cv-07752, in the U.S. District Court for the District
of New Jersey.
As previously reported in the Class Action Reporter, the Plaintiff
filed this putative class action against the Defendants for unpaid
overtime wages pursuant to the Fair Labor Standards Act ("FLSA")
and the New Jersey Wage and Hour Law ("NJWHL") and New Jersey Wage
and Hour Regulations.
On Feb. 19, 2021, the Plaintiff filed a motion to certify class
conditionally pursuant to FLSA.
On Apr. 23, 2021, the Defendants moved for summary judgment.
On July 28, 2022, the Court denied the Defendants' motion for
summary judgment and granted the Plaintiff's motion for conditional
class certification through an Order entered by Judge Julien Xavier
Neals.
On Aug. 9, 2022, the Defendants moved for reconsideration, which
the Court granted on Mar. 20, 2023. The Defendants' motion for
summary judgment was also granted. The Court held that in its
Opinion initially denying the Defendants' summary judgment motion,
it did not properly review whether the Plaintiff was exempt from
overtime pay under the highly compensated exemption. As a result,
the Court will reconsider its decision to prevent manifest
injustice.
The appellate case is captioned Diane Perez v. Express Scripts
Inc., et al., Case No. 23-1730, in the United States Court of
Appeals for the Third Circuit, filed on April 20, 2023. [BN]
Plaintiff-Appellant DIANE PEREZ, individually and on behalf of all
others similarly situated, is represented by:
Catherine E. Anderson, Esq.
GISKAN SOLOTAROFF & ANDERSON
90 Broad Street, 2nd Floor
New York, NY 10004
Telephone: (646) 964-9641
- and -
Roosevelt N. Nesmith, Esq.
363 Bloomfield Avenue, Suite 2-C
Montclair, NJ 07042
Telephone: (973) 259-6990
- and -
Russell S. Warren, Jr., Esq.
473 Sylvan Avenue
Englewood Cliffs, NJ 07632
Telephone: (201) 503-0773
Defendants-Appellees EXPRESS SCRIPTS INC., et al., are represented
by:
John K. Bennett, Esq.
James M. McDonnell, Esq.
Darran E. Stange, Esq.
JACKSON LEWIS
200 Connell Drive, Suite 2000
Berkeley Heights, NJ 07922
Telephone: (908) 795-5200
(908) 195-2000
EZENZIA LLC: Glines Sues Over Automated Text Messages
-----------------------------------------------------
EDYMAR GLINES, individually and on behalf of all others similarly
situated, Plaintiff v. EZENZIA LLC, Defendant, Case No.
CACE-23-012947 (Fla. Cir., 7th Judicial, April 26, 2023) arises out
of the Defendant's violations of the Florida Telephone Solicitation
Act.
The Defendant allegedly engages in automated text messaging to
promote its products to consumers without having secured prior
express written consent as required by the FTSA. The company's
sales text messages have caused Plaintiff harm, including
violations of his statutory rights, statutory damages, annoyance,
nuisance, and invasion of his privacy, says the suit.
Ezenzia LLC is an online retailer that sells fragrances and other
personal products to consumers. It maintains its primary place of
business and headquarters in Doral, FL. [BN]
The Plaintiff is represented by:
Andrew J. Shamis, Esq.
Garrett O. Berg, Esq.
14 NE 1st Ave., Suite 705
Miami, FL 33132
Telephone: (305) 479-2299
E-mail: gberg@shamisgentile.com
- and -
Scott Edelsberg, Esq.
Christopher Gold, Esq.
EDELSBERG LAW, P.A.
20900 NE 30th Ave., Suite 417
Aventura, FL 33180
Telephone: (786) 289-9471
(305) 975-3320
Facsimile: (786) 623-0915
E-mail: scott@edelsberglaw.com
chris@edelsberglaw.com
FAIRFIELD HEALTHCARE: Aboah Appeals Reconsideration Bid Denial
--------------------------------------------------------------
GWENDOLINE ABOAH, et al. are taking an appeal from a court order
denying their motion for reconsideration in the lawsuit entitled
Gwendoline Aboah, et al., individually and on behalf of all others
similarly situated, Plaintiffs, v. Fairfield Healthcare Services,
Inc., Defendant, Case No. 3:20-cv-00763, in the U.S. District Court
for the District of Connecticut.
As previously reported in the Class Action Reporter, the Plaintiffs
filed a complaint against the Defendant to recover unpaid overtime,
redress for missed breaks, and failure to provide wage statements
and all applicable statutory penalties in violation of the Fair
Labor Standards Act and the Connecticut Minimum Wage Act.
On Sept. 15, 2021, the Plaintiffs filed a motion for conditional
certification of a Fair Labor Standards Act (FLSA) collective,
which the Court granted in part and denied in part through an Order
entered by Judge Sarala V. Nagala on Mar. 16, 2023.
Specifically, the Court granted the Plaintiffs' motion for
conditional certification of an FLSA collective as to their claim
that the Defendants failed to account for food and lodging provided
to live-in home health aides (HHAs) when calculating the HHAs'
overtime rates of pay but denied the Plaintiffs' motion as to their
claims that the Defendants improperly excluded sleep and meal
breaks from HHAs' shifts when calculating their wages and failed to
accurately record hours HHAs worked. The Court determined that the
Plaintiffs have failed to provide evidence demonstrating that other
HHAs were required to work seven and a half consecutive hours
without taking meal breaks of 30 minutes or longer. The Court
further denied the Plaintiffs' motion for class certification
pursuant to Federal Rule of Civil Procedure 23 in full.
On Mar. 21, 2023, the Plaintiffs filed a motion for
reconsideration, which the Court denied on Apr. 7, 2023. The Court
ruled that the Plaintiffs have failed to meet the standard for
reconsideration.
The appellate case is captioned Aboah v. Fairfield Healthcare
Services, Inc., Case No. 23-621, in the United States Court of
Appeals for the Second Circuit, filed on April 20, 2023. [BN]
Plaintiffs-Petitioners GWENDOLINE ABOAH, individually, and on
behalf of all others similarly situated, et al. are represented
by:
Nitor V. Egbarin, Esq.
LAW OFFICE OF NITOR V. EGBARIN, LLC
100 Pearl Street
Hartford, CT 06103
Telephone: (860) 408-1197
Defendants-Respondents FAIRFIELD HEALTHCARE SERVICES, INC., DBA
BRIGHTSTAR CARE OF FAIRFIELD & SOUTHBURY, et al. are represented
by:
Donald L. Samuels, Esq.
POLSINELLI PC
1401 Lawrence Street
Denver, CO 80202
Telephone: (303) 583-8268
FIDELITY NATIONAL: Faces Nebraska Suit Over 12% Stock Price Drop
----------------------------------------------------------------
NEBRASKA INVESTMENT COUNCIL, individually and on behalf of all
others similarly situated, v. FIDELITY NATIONAL INFORMATION
SERVICES, INC., GARY NORCROSS, JAMES WOODALL, and STEPHANIE FERRIS,
Case No. 3:23-cv-00504 (M.D. Fla., Apr. 28, 2023) is a federal
securities class action on behalf of all persons or entities who
purchased Fidelity National common stock between May 7, 2020, and
February 10, 2023, inclusive, against Fidelity National and certain
of its officers seeking to pursue remedies under the Securities
Exchange Act of 1934.
This action is about how the Defendants lied to investors about the
success of Fidelity National's post-merger integration with
Worldpay and the performance of the Merchant Solutions segment
during the Class Period. Specifically, the Defendants allegedly
misled investors by touting the benefits of the Worldpay
integration for the Company and claiming that Fidelity National had
"successfully completed the Worldpay integration."
Investors began to learn about problems with the Worldpay
integration and the underperformance of the Merchant Solutions
segment on August 4, 2022, when Fidelity National announced that
its Chief Financial Officer (CFO), James Woodall, planned to "step
down" as Corporate Executive Vice President and CFO effective
November 4, 2022, the lawsuit claims.
Then, on November 3, 2022, the Company announced disappointing
results for the third quarter of 2022, including that profit
margins in the Merchant Solutions business "saw continued pressure
in the quarter," resulting "in an overall adjusted EBITDA margin
contracting 150 points year-on-year."
Finally, before markets opened on February 13, 2023, Fidelity
National announced it would spin off Worldpay, and in the process,
the Company recognized a stunning $17.6 billion write-down on the
asset. In response to this revelation, the price of Fidelity
National stock fell more than 12%, from a closing price of $75.43
per share on the prior trading day of February 10, 2023, to a
closing price of $66.00 per share on February 13, 2023.
As a result of the Defendants' wrongful acts and misleading
statements, and the precipitous decline in the market value of the
Company's stock, the Plaintiff and other Class members have
suffered significant losses and damages, says the suit.
Plaintiff Nebraska Investment Council is an unincorporated
instrumentality of the State of Nebraska that has the statutory
responsibility for the investment management of the assets of the
State of Nebraska.
Fidelity National provides payment processing products and services
to financial institutions and other types of companies.[BN]
The Plaintiff is represented by:
David S. Oliver, Esq.
GRAYROBINSON, P.A.
301 East Pine Street, Suite 1400
Orlando, FL 32801
Telephone: (407) 843-8880
Facsimile: (407) 244-5690
E-mail: david.oliver@gray-robinson.com
- and -
Eric J. Belfi, Esq.
Michael P. Canty, Esq.
Francis P. McConville, Esq.
LABATON SUCHAROW LLP
140 Broadway
New York, NY 10005
Telephone: (212) 907-0700
Facsimile: (212) 8180-0477
E-mail: ebelfi@labaton.com
mcanty@labaton.com
fmcconville@labaton.com
FLORIDA ATLANTIC: Dismissal of Heine Suit With Prejudice Upheld
---------------------------------------------------------------
In the case, AMANDA HEINE and JHAYLA STREADY, individually and on
behalf of all others similarly situated, Appellants v. FLORIDA
ATLANTIC UNIVERSITY BOARD OF TRUSTEES, Appellee, Case No. 4D22-15
(Fla. Dist. App.), the District Court of Appeal of Florida, Fourth
District, affirms the trial court's order granting Florida Atlantic
University Board of Trustees' motion to dismiss the Students' class
action suit with prejudice.
Appellants Heine and Stready ("Students") appeal the trial court's
order granting Florida Atlantic University Board of Trustees'
("FAU") motion to dismiss their class action suit with prejudice.
They claim FAU breached a contract when the university failed to
provide certain in-person services during the COVID-19 pandemic yet
continued to collect fees and refused to provide refunds.
After the COVID-19 virus began infecting people nationwide,
Florida's Governor issued Executive Order 20-52 on March 9, 2020,
declaring a Florida State of Emergency due to COVID-19. Two days
later, the Florida Board of Governors issued an order to all state
public universities, including FAU, directing them to immediately
begin transitioning their faculty and students to remote
instruction. Many colleges and universities throughout the country
acted similarly to stop the spread of COVID-19 by moving classes
online and halting various in-person activities and services.
Initially, this response earned these institutions praise for
acting in the best interests of their students and public health.
However, those directly and adversely affected by the shutdowns
later closely scrutinized those decisions. As a result, college
students across the country filed lawsuits seeking refunds of
either tuition or fees for the in-person educational experience
which they expected but did not receive.
In exercising its constitutional authority to establish tuition and
fees for students at these institutions, the Florida Legislature
has enacted several statutes requiring all state public
universities to charge fees to students who register for courses.
The Legislature has prescribed the fees which each state public
university must charge to all students, except those exempted by
law. In addition to mandating state universities collect and retain
certain fees, the Legislature has specified general purposes for
their use.
In June 2021, the Students filed their suit against FAU after the
COVID-19 shutdown, alleging one count of breach of contract and, in
the alternative, one count of unjust enrichment. They assert that
an express, written contract was established with FAU when they
signed up for classes and paid tuition and fees. In support of
their position, Students attached to their complaint the billing
statements which they had received after paying their tuition for
the affected semesters. In the billing statements for the Spring
2020 semester, the Students were charged for several services in
addition to tuition, including fees for transportation access,
health, and athletics. They also attached a "Statement of
Responsibility" to their complaint that they were required to sign
when registering for classes.
FAU moved to dismiss the complaint, arguing the Students' claims
were barred by the separation of powers doctrine as well as by
sovereign immunity. Following a hearing on the motion, the trial
court dismissed the Students' complaint with prejudice, finding
their claims were barred under both doctrines.
On FAU's sovereign immunity defense, the trial court found the
Statement of Responsibility and tuition billing statements did not
constitute an express, written contract because they simply
referenced "fees" in the aggregate without identifying any specific
services provided in exchange for the Students' payment. Because
the attachments to the operative complaint did not clearly and
unequivocally show the existence of an express contract, the trial
court found the Students did not establish a cause of action with
allegations sufficient to be deemed a waiver of sovereign immunity
to allow recovery under either a breach of contract or unjust
enrichment claim. The appeal followed.
The District Court of Appeal concludes that it is beyond dispute
that the COVID-19 virus took a tremendous toll on society.
Thousands of students lost a significant portion of their college
experience as a result, and the District Court of Appeal is mindful
of the fact that many others lost far more. However, it is
powerless to redress some losses under the law.
Therefore, the District Court of Appeal affirms the trial court's
order granting FAU's motion to dismiss the Students' complaint with
prejudice for the reasons it stated. Because it finds no express,
written contract exists sufficient to overcome FAU's defense of
sovereign immunity, the District Court of Appeal does not reach the
merits of the separation of powers issue.
Finally, because state universities across Florida are facing
similar lawsuits, the District Court of Appeal certifies the
following question of great public importance to the Florida
Supreme Court as stated by the First District in University of
Florida Board of Trustees v. Rojas, 351 So.3d 1167 (Fla. 1st DCA
2022): Whether sovereign immunity bars a breach of contract claims
against a state university based on the university's failure to
provide its students with access to on-campus services and
facilities?
A full-text copy of the Court's April 26, 2023 Order is available
at https://rb.gy/ozvr6 from Leagle.com.
Adam A. Schwartzbaum, adam@moskowitz-law.com -- Howard M. Bushman
-- howard@moskowitz-law.com -- and Barbara C. Lewis --
barbara@moskowitz-law.com -- of The Moskowitz Law Firm, Coral
Gables, and Douglas F. Eaton of Eaton & Wolk, P.L., Miami, for the
Appellants.
Holly Griffin Goodman -- hgoodman@gunster.com -- and Jack J. Aiello
-- jaiello@gunster.com -- of Gunster, Yoakley & Stewart, P.A., West
Palm Beach, for the Appellee.
GLAXOSMITHKLINE CONSUMER: Calchi Appeals Case Dismissal Ruling
--------------------------------------------------------------
Plaintiffs Nancy Calchi, et al., filed an appeal from the District
Court's Order dated March 10, 2023 entered in the lawsuit entitled
NANCY CALCHI, individually and on behalf of all others similarly
situated Plaintiff v. GLAXOSMITHKLINE CONSUMER HEALTHCARE HOLDINGS
(US) LLC, GSK CONSUMER HEALTH, INC., AND PFIZER, INC., Defendants,
Case No. 22-cv-1341, in the United States District Court for the
Southern District of New York.
The Plaintiff brings this action, individually and on behalf of all
others similarly situated, against the Defendants on February 16,
2022 claiming that its labelling of cough medicine products
containing dextromethorphan hydrobromide as "Non-Drowsy" is false
and materially misleading to reasonable consumers who purchased the
products. The Plaintiff alleges, on behalf of herself and a
consumer protection subclass, violations of the consumer protection
acts of California, Connecticut, Illinois, Washington, Maryland,
and Washington, D.C. The Plaintiff further alleges, on behalf of
herself and a New York subclass, claims under New York Gen. Bus.
Law, and on behalf of herself and a nationwide class, breach of
express warranty.
On June 1, 2022, Plaintiff Calchi filed a motion to consolidate
cases 7:22-cv-01341-KMK and 7:22-cv-02630-KMK and motion to appoint
counsel interim class counsel which the Court both granted on June
9, 2022 through an Order signed by Judge Kenneth M. Karas.
On July 20, 2022, the Defendants filed a motion to dismiss the
Plaintiffs' consolidated class action complaint.
On March 10, 2023, Judge Karas signed an Order dismissing
Plaintiff's claims under the various state consumer protection
statutes and also her breach of express warranty. Because this is
the first adjudication of the claims on the merits, Plaintiff's
claims are dismissed without prejudice, says the Order.
The appellate case is captioned as Calchi v. GlaxoSmithKline
Consumer Healthcare Holdings (US), Case No. 23-664, in the United
States Court of Appeals for the Second Circuit, filed on April 24,
2023.[BN]
Plaintiffs-Appellants Nancy Calchi, individually and on behalf of
all others similarly situated, et al., are represented by:
Jonas Bram Jacobson, Esq.
DOVEL & LUNER, LLP
201 Santa Monica Boulevard
Santa Monica, CA 90401
Telephone: (310) 656-7066
Defendants-Appellees GlaxoSmithKline Consumer Healthcare Holdings
(US) LLC and GSK Consumer Health, Inc. are represented by:
J. Gordon Cooney, Jr., Esq.
MORGAN, LEWIS & BOCKIUS LLP
1701 Market Street
Philadelphia, PA 19103
Telephone: (215) 963-4806
GLOCK INC: Filing of Class Certification Bid Extended to Oct. 12
----------------------------------------------------------------
In the class action lawsuit captioned as STEVEN C. JOHNSON, an
individual, on behalf of himself and all others similarly situated,
v. GLOCK, INC., a Georgia Corporation; GLOCK Ges.m.b.H, an Austrian
entity; JOHN and JANE DOES I through V; ABC CORPORATIONS I-X, XYZ
PARTNERSHIPS, SOLE PROPRIETORSHIPS and/or JOINT VENTURES I-X, GUN
COMPONENT MANUFACTURERS I-V, Case No. 3:20-cv-08807-WHO (N.D.
Cal.), the Hon. Judge William H. Orrick entered an order granting
the Parties' joint stipulation to continue class certification
briefing as follows:
1. The new deadline for the Plaintiff to file his motion for
class
certification is October 12, 2023.
2. The new deadline for Defendants to file an opposition to the
Plaintiff's motion for class certification is December 12,
2023.
3. The new deadline for The Plaintiff to file his reply in
support
of his motion for class certification is February 12, 2024.
4. The new hearing date on The Plaintiff's motion for class
certification is February 28, 2024.
The deadline for The Plaintiff to file his motion for class
certification is currently set for June 7, 2023 (the opposition and
reply memorandum are due on August 7, 2023, and October 6, 2023,
respectively).
And the hearing on the Plaintiff's motion for class certification
is currently scheduled for October 25, 2023.
Glock is a weapons manufacturer headquartered in Deutsch-Wagram,
Austria, named after its founder, Gaston Glock. While the company
is best known for its line of polymer-framed pistols, it also
produces field knives, entrenching tools, and apparel.
A copy of the Court's order dated April 25, 2023 is available from
PacerMonitor.com at https://bit.ly/41Hz1Nn at no extra charge.[CC]
The Plaintiff is represented by:
Craig M. Nicholas, Esq.
Alex Tomasevic, Esq.
Jake W. Schulte, Esq.
NICHOLAS & TOMASEVIC, LLP
225 Broadway, 19th Floor
San Diego, CA 92101
Telephone: (619) 325-0492
Facsimile: (619) 325-0496
E-mail: cnicholas@nicholaslaw.org
atomasevic@nicholaslaw.org
jschulte@nicholaslaw.org
- and -
Robert K. Lewis, Esq.
Amy M. Lewis, Esq.
LEWIS LAW FIRM, PLC
2302 N. 3rd Street
Phoenix, AZ 85004
Telephone: (602) 889-6666
Facsimile: (602) 252-1446
E-mail: rob@lewislawfirm.com
amy@lewislawfirm.com
The Defendants are represented by:
John F. Renzulli, Esq.
Christopher Renzulli, Esq.
Howard B. Schilsky, Esq.
RENZULLI LAW FIRM, LLP
One North Broadway, Suite 1005
White Plains, NY 10601
Telephone: (914) 285-0700
Facsimile: (914) 285-1213
E-mail: jrenzulli@renzullilaw.com
crenzulli@renzullilaw.com
hschilsky@renzullilaw.com
- and -
Paul G. Cereghini, Esq.
Carissa Casolari, Esq.
BOWMAN AND BROOKE LLP
1741 Technology Drive, Suite 200
San Jose, CA 95110
Telephone: (408) 279-5393
Facsimile: (408) 279-5845
E-mail: paul.cereghini@bowmanandbrooke.com
Carissa.casolari@bowmanandbrooke.com
GREGORY SEABOLT: Partly Wins Summary Judgment vs Martin
-------------------------------------------------------
In the class action lawsuit captioned as KA'LAH (KALAH) MARTIN, v.
GREGORY SEABOLT, et. al., Case No. 1:21CV906 (M.D.N.C.), the Hon.
Judge L. Patrick Auld entered an order that the summary judgment
motion is granted in part, in that:
1) The Plaintiff's excessive force under Section 1983 claim
shall
proceed against Defendants Short, Gabby, and Harrelson in
their
individual capacities only;
2) The Plaintiff's state law assault and battery claim shall
proceed against Defendants Short, Gabby, and Harrelson in
their
individual capacities only;
3) Punitive damages shall remain available for the surviving
claims;
4) as to all other claims and all other Defendants, the Court
will enter summary judgment against The Plaintiff; and
5) The Plaintiff's Evidentiary Objection is denied.
Genuine issues of material fact exist as to whether Defendants
Short, Gabby, and Harrelson used excessive force to arrest The
Plaintiff, such that The Plaintiff's related federal and state
claims against them in their individual capacity shall proceed to
trial.
These factual issues similarly preclude a grant of qualified
immunity for Defendants Short, Gabby, and Harrelson on the
surviving federal claim, and allow for the possibility of punitive
damages on the surviving federal and state claims. In all other
respects, Defendants have shown entitlement to judgment as a matter
of law.
The Plaintiff commenced this action against several Defendants for
alleged civil rights violations arising out of a traffic stop and
arrest of The Plaintiff on February 28, 2019.
According to the Amended Complaint, the Defendants (officers with
the Randolph County, North Carolina Sheriff's Office) unlawfully
arrested The Plaintiff on February 28, 2019, for a traffic
infraction.
A copy of the Court's order dated April 25, 2023 is available from
PacerMonitor.com at https://bit.ly/3HsuGFD at no extra charge.[CC]
GUAM: AG Appeals Injunction Ruling in Gynecologists' Suit
---------------------------------------------------------
DOUGLAS B. MOYLAN, in his official capacity as Attorney General of
Guam, filed an appeal from the District Court's Order dated March
24, 2023 entered in the lawsuit entitled GUAM SOCIETY OF
OBSTETRICIANS AND GYNECOLOGISTS; GUAM NURSES ASSOCIATION; THE
REVEREND MILTON H. COLE, JR.; LAURIE KONWITH; EDMUND A. GRILEY,
M.D.; WILLIAM S. FREEMAN, M.D.; JOHN DUNLOP, M.D.; on behalf of
themselves and all others similarly situated, and all their women
patients, Plaintiffs v. LOURDES A. LEON GUERRERO, in her official
capacity as the Governor of Guam; ARTHUR U. SAN AGUSTIN, in his
official capacity as the Director of the Department of Public
Health and Social Services; LILLIAN PEREZ-POSADAS, M.N., R.N., in
her official capacity as the Administrator of the Guam Memorial
Hospital Authority; DOUGLAS B. MOYLAN, in his official capacity as
the Attorney General of Guam; ALICE M. TAIJERON, GERARD "JERRY" C.
CRISOSTOMO, JOSEPH P. MAFNAS, ANTONIA "TONI" R. GUMATAOTAO, BENNY
A. PINAULA, G. PATRICK CIVILLE, and CARISSA E. PANGELINAN, in their
official capacities as the Board of Directors of the Guam Election
Commission, together with all others similarly situated,
Defendants, Case No. 1:90-cv-00013, in the United States District
Court for the District of Guam.
On March 23, 1990, the Plaintiffs filed this lawsuit, challenging
the constitutionality of the Public Law 20-134, a ban that would
have criminalized a patient who has an abortion and physicians who
provide abortion care. The Plaintiffs alleged that the law violates
the First, Fourth, Fifth, Eighth, Ninth, Thirteenth, and Fourteenth
Amendments to the United States Constitution, the Organic Act of
Guam, and 42 U.S.C. Section 1983. The Court issued a temporary
restraining order the same day. After a hearing on March 26, 1990,
the temporary restraining order was continued in force until
further order of the Court.
Defendant Attorney General of Guam moved the court for an order
vacating the permanent injunction issued on August 23, 1990, in the
above-captioned matter.
On March 24, 2023, Chief Judge Frances M. Tydingco-Gatewood signed
an Order denying Defendant Attorney General of Guam Douglas B.
Moylan's Motion to Vacate Permanent Injunction Pursuant to Fed. R.
Civ. P. 60(b)(5) and to Dismiss the Case with Prejudice.
The appellate case is captioned as GUAM SOCIETY OF OBSTETRICIANS
AND GYNECOLOGISTS; GUAM NURSES ASSOCIATION; MILTON H. COLE, Jr.,
Reverend; LAURIE KONWITH; EDMUND A. GRILEY, M.D.; WILLIAM S.
FREEMAN, M.D.; JOHN DUNLOP, M.D., on behalf of themselves and all
others similarly situated, Plaintiffs-Appellees, v. DOUGLAS B.
MOYLAN, in his official capacity as Attorney General of Guam,
Defendant-Appellant, v. LOURDES LEON GUERRERO, in her official
capacity as Governor of Guam; ARTHUR U. SAN AGUSTIN, MHR, in his
official capacity as Director of the Department of Public Health
and Social Services; LILLIAN PEREZ-POSADAS, M.N., R.N., in her
official capacity as Administrator of the Guam Memorial Hospital;
ALICE M. TAIJERON, in her official capacity as member of the Guam
Election Commission; GERARD C. CRISOSTOMO, "Jerry", in his official
capacity as member of the Guam Election Commission; G. PATRICK
CIVILLE, in his official capacity as member of the Guam Election
Commission; JOSEPH P. MAFNAS, in his official capacity as member of
the Guam Election Commission; ANTONIA R. GUMATAOTAO, "Toni", in her
official capacity as member of the Guam Election Commission;
CARISSA E. PANGELINAN, in her official capacity as member of the
Guam Election Commission; BENNY A. PINAULA, in his official
capacity as member of the Guam Election Commission,
Defendants-Appellees, Case No. 23-15602, in the United States Court
of Appeals for the Ninth Circuit, filed on April 25, 2023.
The briefing schedule in the Appellate Case states that:
-- Appellant's Mediation Questionnaire was due on May 2, 2023;
-- Transcript shall be ordered by May 24, 2023;
-- Transcript shall be filed by June 22, 2023;
-- Appellant's opening brief and excerpts of record shall be
served on July 28, 2023;
-- Appellees' answering brief and excerpts of record shall be
served on August 28, 2023; and
-- The optional appellant's reply brief shall be filed and
served within 21 days of service of the appellees' brief, pursuant
to FRAP 31 and 9th Cir. R. 31-2.1. Failure of the appellant to
comply with the Time Schedule Order will result in automatic
dismissal of the appeal. See 9th Cir. R. 42-1.[BN]
HOMEFIX CUSTOM: Gonzalez TCPA Suit Moved to District of Maryland
----------------------------------------------------------------
Judge T.S. Ellis, III, of the U.S. District Court for the Eastern
District of Virginia, Alexandria Division, transferred the case,
MARY GONZALEZ, Plaintiff v. HOMEFIX CUSTOM REMODELING, CORP.,
Defendant, Case No. 1:23-cv-192 (E.D. Va.), to the U.S. District
Court for the District of Maryland.
The Plaintiff has filed the class action complaint against the
Defendant alleging that Defendant made unsolicited telemarketing
calls to individuals who placed their phone numbers on the national
Do-Not-Call registry or who asked Defendant stop calling them. She
alleges that the Defendant's telemarketing practices violated the
federal Telephone Consumer Protection Act of 1991 (the "TCPA"), 47
U.S.C. Section 227 et seq., and the Virginia Telephone Privacy
Protection Act (the "VTPPA").
The Plaintiff alleges that the Defendant violated both the TCPA and
the VTPPA by calling individuals whose phone numbers were listed on
the national Do-Not-Call registry. She also alleges that Defendant
violated the TCPA by placing telemarketing calls to individuals who
previously asked the Defendant to stop calling them. She seeks
similar relief under both the federal and Virginia statutes.
Under the TCPA, the Plaintiff seeks up to $500 and in damages for
each and every call made and up to $1,500 in damages if the calls
are found to be willful; under the VTPPA, the Plaintiff seeks a
minimum of $500 in damages for each violation. The Plaintiff also
seeks injunctive relief under both statutes enjoining Defendant
from making unsolicited telemarketing calls to class members in the
future.
The Plaintiff brings the action on behalf of herself and three
proposed classes, which she defines as follows:
(i) National Do Not Call Registry Class: All persons in the
United States who at any time in the period that begins four years
before the date of filing the Plaintiff's Complaint to trial (1)
had placed their telephone numbers on the National Do Not Call
Registry for at least 31 days, (2) received more than one
telemarketing call from or on behalf of the Defendant, (3) within a
12-month period, and (4) had previously asked the calls to stop or
had not transacted business with Defendant for at least 18 months
or who had not inquired about the Defendant's services within 3
months preceding the call.
(ii) Internal Do Not Call Class: All persons in the United
States who at any time in the period that begins four years before
the date of filing the Plaintiff's Complaint to trial (1) received
two or more telemarketing calls in a 12-month period from Defendant
(or an agent acting on behalf of the Defendant), (2) were not
current customers of Defendant at the time of the call, and (3) had
previously asked for the calls to stop.
(iii) VTPPA Class: All persons in Virginia or with a Virginia
area code who from the four years prior to the filing of the
Plaintiff's Complaint through the date of trial (1) received a
telephonic sales call from the Defendant or a third party acting on
Defendant's behalf regarding goods or services, (2) to a number on
the National Do Not Call Registry.
In response, the Defendant argues that the case should be
transferred to the District of Maryland pursuant to the
First-to-File Rule and 28 U.S.C. Section 1404(a) because two
putative class actions have already been filed against the
Defendant in the District of Maryland alleging nearly identical
conduct and seeking to certify classes composed of the same members
as the Plaintiff's proposed classes -- Dribben v. Homefix Custom
Remodeling, Corp., Case No. 1:22-cv-1143 (D. Md. filed May 11,
2022) and Miranda v. Homefix Custom Remodeling, Corp., Case No.
8:22-cv-3190 (D. Md. filed Dec. 12, 2022).
The Defendant argues that the First-to-File Rule compels transfer
of the action to the District of Maryland. The First-to-File Rule
is a principle of "sound judicial administration" that favors
allowing an earlier-filed action to proceed to the exclusion of a
later filed action addressing substantially the same issues.
In applying these principles, Judge Ellis says district courts in
the Fourth Circuit have adopted a three-part test to determine
whether two actions come within the scope of the First-to-File
Rule: courts consider (1) the chronology of the filings, (2) the
similarity of the parties involved, and (3) the similarity of the
issues at stake. He says all three First-to-File factors
persuasively counsel in favor of transfer to the District of
Maryland.
Judge Ellis concludes that the First-to-File Rule and the Section
1404(a) factors -- with particular emphasis on the interest of
justice -- counsel in favor of transferring the case to the
District of Maryland. Because two nearly identical putative class
actions are already proceeding there against the same Defendant,
transfer of the matter to the District of Maryland will foster
judicial economy and promote consistent results.
For these reasons, the Defendant's Motion to Transfer is granted.
An appropriate Order will be issued.
The Clerk of the Court is directed to provide a copy of the
Memorandum Opinion to all counsel of record.
A full-text copy of the Court's April 26, 2023 Memorandum Opinion
is available at https://rb.gy/6o3vp from Leagle.com.
JOHNSON & JOHNSON: Bid to Dismiss Melzer Class Suit Granted in Part
-------------------------------------------------------------------
In the case, HELENE MELZER, individually and on behalf of all those
similarly situated, Plaintiff v. JOHNSON & JOHNSON CONSUMER INC.,
Defendant, Civil Action No. 22-3149 (MAS) (RLS) (D.N.J.), Judge
Michael A. Shipp of the U.S. District Court for the District of New
Jersey grants in part and denies in part JJCI's Motion to Dismiss
Plaintiff Helene Melzer's First Amended Complaint.
The lawsuit is a class action case about the privacy concerns that
come with the alleged use of biometric information and identifiers.
JJCI's Neutrogena Skin360 is a technology that provides consumers
with "a personalized at-home skin assessment" by scanning a
consumer's face and analyzing the facial scan to diagnose skin
health issues, and then recommending a skin care regimen consisting
of Neutrogena products. In creating this assessment, Skin360
requires consumers, like Melzer, to turn on and use their live
camera for 180-degree selfie scans. Skin360 deploys the Perfect
Corp.'s YouCam technology, which is integrated with the Skin360
application and captures over 200 facial landmark points.
In December 2021 or January 2022, Illinois resident Melzer, while
located in Illinois, was one such consumer who used the Skin360
application on her mobile device to obtain a personalized at-home
skin assessment. She alleges that in creating this assessment, the
Skin360 technology scanned, collected, captured, used, and stored
in an electronic database digital copies of Melzer's unique facial
geometry. Yet prior to taking these biometric identifiers and/or
biometric information (as Melzer puts it), JJCI did not inform
Melzer in any form that her biometrics were being captured,
collected, stored, used or disseminated. Thus, JJCI neither sought,
nor did Melzer ever provide, informed consent relating to the use
of her biometrics, and JJCI did not publish any policy specifically
about biometric use. Importantly, Melzer alleges that this
biometric data is tied to individuals' names, birthdates, and other
personally identifying information.
Melzer brings the class action suit on behalf of herself and other
Illinois consumers for JJCI's alleged violations of the Illinois
Biometric Information Privacy Act ("BIPA"), 740 ILCS 14/1, et seq.
Specifically, she alleges that JJCI violated BIPA in numerous
capacities, such as failing to inform Melzer and class members in
writing that their biometric information and/or biometric
identifiers were being captured, collected, or stored, among other
alleged privacy concerns.
Melzer initially filed a Complaint on May 26, 2022, which JJCI
moved to dismiss under Federal Rule of Civil Procedure 12(b)(6).
SHe then filed the instant FAC on Aug. 11, 2022. The FAC adds that
Skin360's facial assessments were unique to an individual and used
to identify them. The FAC alleges five claims: four violations of
BIPA Sections 15(a)-(d) (all contained within Count I), and an
unjust enrichment claim premised on the same allegations (Count
II).
Now before the Court is JJCI's Motion to Dismiss the FAC. It seeks
to dismiss Count I for failure to state a claim under any provision
of BIPA -- namely, for failure to state any facts permitting a
plausible inference that Skin360 collects biometric information
that can identify an individual. JJCI also contends that Melzer's
Count I claims pursuant to BIPA Sections 15(c) and 15(d) must be
dismissed for additional, independent reasons, including,
respectively, Melzer's failure to allege that: (1) JJCI profited
from transactions involving biometric data; and (2) that JJCI
disseminated biometric data to a third party. It moves to dismiss
Count II because Melzer's unjust enrichment claim relies upon her
allegedly deficient BIPA allegations.
First, Judge Shipp denies the motion to dismiss based on JJCI's
arguments as they pertain to definitions under BIPA. He opines that
based on existing case law and statutory interpretation, BIPA does
not require that a "biometric identifier" be used to identify an
individual. He says the simplest explanation of BIPA is the best
one, which is that the plain meaning of "biometric identifiers"
under BIPA does not require that they be used to identify an
individual.
Next, Judge Shipp finds that Melzer plausibly alleges a Section
15(c) claim. Melzer alleges, on information and belief, that JJCI
commercially disseminates her and the class members' biometric
identifiers and biometric information to JJCI's affiliates and
other third parties for its own benefit. Supporting this claim,
Melzer points to a notice JJCI issued in California, in which JJCI
acknowledged that it may have sold such data as defined under
California law. At this stage of the litigation, that is enough for
Melzer to sustain a Section 15(c) claim. As such, Judge Shipp
denies the Motion to Dismiss as to this point.
Judge Shipp also finds that what JJCI does or does not do with the
biometric identifiers is exactly the type of information
"peculiarly within" JJCI's knowledge or control. Indeed, numerous
courts have found that allegations concerning a defendant's use of
third-party technology as well as biometric data sharing to
affiliates and third-party providers can create a plausible
inference of dissemination or disclosure. Furthermore, courts have
found that a plaintiff plausibly alleges dissemination of protected
information without the plaintiff's consent where the defendant has
acknowledged potential transfers of data through a notice on its
website, as JJCI has allegedly done in the present case. Thus, at
this stage in the litigation, Judge Shipp denies the Motion to
Dismiss as to this point.
Finally, Judge Shipp finds that the FAC fails to sufficiently
allege that the retention of Melzer's data "specifically enriched"
JJCI. Because Melzer fails to sufficiently allege the elements of
her unjust enrichment claim, he, accordingly, dismisses it.
For the foregoing reasons, Judge Shipp grants in part and denies in
part JJCI's Motion to Dismiss. He enters an order consistent with
his Memorandum Opinion.
A full-text copy of the Court's April 26, 2023 Memorandum Opinion
is available at https://rb.gy/x90cq from Leagle.com.
JULIAN WISER: Hunt Class Certification Bid Tossed
--------------------------------------------------
In the class action lawsuit captioned as MITCHELL HUNT, v. SHERIFF
JULIAN WISER and ADMINISTRATOR CHESTER LONG, Case No.
1:22-cv-01224-SHM-tmp (W.D. Tenn.), the Hon. Judge Samuel H. Mays,
Jr entered an order as follows:
A. The complaint is dismissed without prejudice for failure
to allege facts stating a claim to relief under 42 U.S.C.
section 1983.
-- Class certification is denied.
B. Leave to amend is granted.
-- An amended pleading must be filed within 21 days of the
date
of this Order and must comply with the Federal Rules of
Civil Procedure, including but not limited to Rule 8's
requirement of a short and plain statement of Hunt's
claims.
C. The Motions for appointment of counsel are denied without
prejudice, subject to Hunt's right to re-file a motion for
appointment of counsel if the case proceeds.
On October 17, 2022, The Plaintiff Mitchell Hunt filed a pro se
complaint pursuant to 42 U.S.C. section 1983 and a motion to
proceed in forma pauperis.
On October 31, 2022, Hunt filed a motion for appointment of
counsel. On December 27, 2022, Hunt filed another motion for
appointment of counsel.
The complaint alleges a claim of unconstitutional conditions of
confinement during Hunt's incarceration at the MCJ due to: (1)
overcrowding, (2) black mold, (3) recycled garments and towels, and
(4) failure to screen inmates for infectious diseases.
Hunt complains the following conditions of his confinement at the
MCJ:
(1) Hunt alleges that, because the MCJ "is being continually
overcrowded," or more inmates are sleeping on the floor"
and
"as of October 11, 2022, there are 20 inmates in a 10-man
cell
with 11 inmates sleeping on the floor" (the Overcrowding).
(2) Hunt does not allege injuries from the Overcrowding.
A copy of the Court's order dated April 25, 2023 is available from
PacerMonitor.com at https://bit.ly/3LE44UK at no extra charge.[CC]
JUMIO INC: Court Denied Motion to Dismiss Suit Over BIPA Violations
-------------------------------------------------------------------
David Oberly and Kristin L. Bryan of Mondaq report that one of the
most notable trends in Illinois Biometric Information Privacy Act
("BIPA") class action litigation is the marked increase in the
number of class actions targeting third-party biometric technology
vendors, such as identity authentication systems and employee
timekeeping devices. Importantly, because these vendors do not
maintain any direct relationship with the end users of their
technology, compliance with Illinois's biometric privacy statute
--especially its notice and consent requirements -- can be a
challenging undertaking. Despite this, to date, the majority of
courts have held that BIPA nonetheless applies equally to vendors
vis-a-vis employers and other entities that maintain direct
relationships with biometric data subjects.
Earlier this month, an Illinois federal court rejected a selfie ID
facial recognition identity verification vendor's bid for dismissal
of a BIPA class action in Davis v. Jumio Corp., No. 22 CV 776, 2023
WL 2019048 (N.D. Ill. Feb. 14, 2023). The Davis decision
illustrates the scope of exposure faced by vendors for alleged
non-compliance with BIPA, as well as the challenges and
complexities in obtaining dismissals of biometric privacy class
actions prior to the commencement of costly discovery.
Background
Plaintiff maintained a membership with the online cryptocurrency
marketplace operated by Binance. Jumio Corporation provides facial
recognition identity verification services for its clients,
including Binance. Plaintiff sued Jumio, alleging that the company
violated BIPA's Section 15(b) notice and consent requirements when
it collected his biometric data during the process of verifying his
identity for Binance.
Jumio moved to dismiss the class action pursuant to Federal Civil
Rule 12(b)(6). Jumio raised two arguments in support of dismissal.
First, Plaintiff's suit was barred by BIPA's financial institution
exemption. Second, dismissal of the complaint was warranted under
Illinois's extraterritoriality doctrine.
The Decision
The court first considered whether BIPA's exemption for financial
institutions precluded Plaintiff's claims against Jumio. BIPA
Section 25(c) provides that "[n]othing in this Act shall be deemed
to apply in any manner to a financial institution or an affiliate
of a financial institution subject to Title V of the federal
Gramm-Leach-Bliley Act of 1999 [("GLBA")] and the rules promulgated
thereunder."
In raising this argument, Jumio did not contend that it was a
financial institution itself; rather, Jumio argued that Binance was
a financial institution and, as a result, applying BIPA to Jumio in
connection with use of the Binance App would effectively result in
applying BIPA to Binance, an action that is proscribed by BIPA.
The court disagreed, finding several flaws in Jumio's argument.
First, the court rejected consideration of materials submitted by
Jumio in support of its motion to dismiss, which Jumio had argued
allowed the court to take judicial notice of Binance's
qualification as a financial institution for purposes of BIPA's
Section 25(c) exemption.
The court instead held that "Binance's self-serving statements
(such as characterizing itself as a financial institution in other
litigation to avoid liability under BIPA) need not be accepted as
true and do not support taking judicial notice of the contested
fact that Binance is, in fact, a financial institution."
Additionally, the court also held that the allegations in the
complaint were similarly inadequate to demonstrate Binance's status
as a financial institution, as other than using the term
"cryptocurrency marketplace," the complaint contains no further
factual allegations about the financial activities of Binance.
Second, the court found that even if Binance was found to be a
financial institution within the meaning of the GLBA -- thus
triggering the Section 25(c) exemption -- it did not necessarily
follow that the claim against Jumio was barred. In so doing, the
court rejected Jumio's argument that because its software was
embedded and integrated into the Binance App, BIPA would be applied
to Binance "in any manner" in contravention of Section 25(c) in the
event the court granted the Plaintiff's requested relief under the
Illinois biometrics law. The court explained that even if Jumio
were ordered to comply with BIPA's notice and consent requirements,
Jumio might have to modify the software it provided to Binance;
Binance, however, would still nonetheless have no affirmative
obligation under BIPA to change the Binance App. Without further
information regarding how the Binance App functioned and how
Jumio's software was integrated into the Binance App, the court was
unable to determine the extent to which requiring Jumio's
compliance with BIPA would necessitate changes to how Binance did
business, such that BIPA could be construed as applying "in any
manner" to Binance.
Accordingly, the court declined to dismiss the class action
pursuant to BIPA's financial institution exemption.
The court then turned to Jumio's argument that Illinois's
extraterritoriality doctrine barred Plaintiff's lawsuit. In
Illinois, a statute is without extraterritorial effect unless a
clear intent appears from the express provisions of the statute.
Both parties agreed that BIPA did not apply extraterritorially.
Therefore, for BIPA to apply to Jumio's conduct, the circumstances
giving rise to the suit must have occurred "primarily and
substantially in Illinois."
Jumio argued that the complaint did not allege that any relevant
conduct giving rise to the class action occurred in Illinois, aside
from Plaintiff's allegation that he was an Illinois resident.
Notably, after Jumio filed its motion to dismiss, Plaintiff added
allegations in his response brief to bolster his opposition to
Jumio's extraterritoriality argument. In its reply, Jumio posited
that dismissal was still warranted, as Plaintiff's new allegations
failed to allege that any of Jumio's conduct took place within the
borders of Illinois.
Considering the allegations in the complaint, as supplemented by
additional facts in his response brief, the court found that
Plaintiff sufficiently alleged a plausible claim that Jumio's BIPA
violations occurred primarily and substantially in Illinois.
Specifically, the court found that the following allegations,
without more, were enough at the pleading stage to avoid dismissal
based on Jumio's extraterritoriality argument: (1) Plaintiff was an
Illinois resident; (2) Jumio conducted business transactions in
Illinois; and (3) Plaintiff submitted photographs of his driver's
license and face through the Binance App while in Illinois.
Analysis & Takeaways
Continued Trend of Broad Exposure for Third-Party Biometrics
Vendors and Service Providers
Since the start of the year, the Illinois Supreme Court has issued
two notable plaintiff-friendly opinions, which resolved the
uncertainty surrounding the applicable statute of limitations for
BIPA claims and the issue of claim accrual in BIPA litigation,
respectively, and significantly expanded the scope of potential
liability exposure for BIPA non-compliance even further in the
process. However, the applicability of BIPA to third-party vendors
continues to persist as a significant area of ambiguity. To date,
the majority of courts to analyze the issue have held that BIPA is
applicable to vendors and service providers, even if they do not
directly interface with end users. This line of reasoning was most
recently affirmed in early February 2023 by an Illinois federal
court in Johnson v. NCR Corp., No. 22 CV 3061, 2023 WL 1779774
(N.D. Ill. Feb. 6, 2023) (for more information on the Johnson
opinion, you can read Privacy World team member David Oberly's
article analyzing the decision for Biometric Update here).
Davis further illustrates the potential perils that vendors face if
they fail to satisfy the full range of BIPA compliance requirements
when offering biometrics-related products and services to their
commercial clients.
Scope of BIPA's Financial Institution Exemption Not Unlimited
To date, the Section 25(c) financial institution exemption has been
one of the most robust defenses to BIPA class actions, resulting in
the dismissal of a number of defendants not traditionally known as
"financial institutions," such as colleges and universities. The
Davis decision, however, demonstrates that the contours of the
financial institution exemption are not unlimited.
In rejecting the vendor's assertion of the financial institution
exemption as a bar to the BIPA claims asserted against it, the
Davis court relied primarily on the lack of sufficient evidence
demonstrating that the defendant's customer was, in fact, a
financial institution entitled to seek refuge under BIPA Section
25(c). The reasoning of the Davis court comports with other courts
that have denied motions to dismiss asserting BIPA's financial
institution exemption as a complete defense to liability -- which
have also found inadequate evidence demonstrating that the
defendant or a related entity satisfied the GLBA's definition of a
financial institution so as to make Section 25(c) applicable to bar
BIPA claims.
Importantly, Davis illustrates that defendants seeking dismissal
pursuant to the financial institution exemption need to ensure that
their motions are properly supported with sufficient evidence to
permit a finding that Section 25(c) applies to the specific
activities engaged in by the entity at issue in order to maximize
the likelihood of a favorable outcome on a motion seeking to
definitively end class action litigation. This task is especially
critical when pursuing motions to dismiss, where the scope of
evidence that can be considered by the court is curtailed.
Challenges Faced by Defendants in Procuring Dismissals from BIPA
Litigation at the Pleading Stage
BIPA class actions have been challenging to defeat at the pleading
stage, which is due to a combination of factors that include the
deference given to Plaintiff's allegations for purposes of a motion
to dismiss, the lack of guidance offered to courts by BIPA's
statutory text, and courts' willingness to interpret BIPA's
compliance requirements in a manner that heavily favors the
plaintiff's bar.
Davis is a textbook example of these challenges that are often
faced by defendants in attempting to obtain dismissals of BIPA
disputes before proceeding to the discovery phase of litigation. Of
note, although courts are generally only permitted to consider the
allegations in the complaint on a motion to dismiss, the Davis
court permitted the Plaintiff's elaborations to the complaint's
factual allegations in his response brief to be considered in
ruling on the defendant's motion to dismiss. Further, the court
found that the Plaintiff's allegations were sufficient at the
pleading stage to plausibly allege circumstances that the alleged
BIPA violation occurred in Illinois so as to avoid dismissal on
extraterritoriality grounds, even though the Plaintiff only alleged
a single fact relating directly to the defendant's conduct -- that
it engaged in business transactions in Illinois. More than that, in
rejecting Jumio's extraterritoriality argument, the court
acknowledged that discovery might reveal that the connection to
Illinois is "sufficiently tenuous" as to warrant revisiting the
matter at summary judgment, but that was not enough to prevent the
case from moving past the pleading stage.
To mitigate BIPA litigation risk, all types of entities that use
biometric data in their operations should consider taking a
conservative approach to compliance -- one that ensures all
applicable BIPA requirements are satisfied -- even where it is not
definitively clear that Illinois's biometrics statute applies to
organizational operations.
Specifically, companies should ensure they maintain flexible,
comprehensive biometric privacy compliance programs, which should
include (among other things) the following:
-- A publicly-available, biometrics-specific privacy policy;
-- Set data retention and destruction guidelines and schedules
containing a clear and unambiguous description of the event
trigger(s) that will prompt the immediate and permanent destruction
of an individual's biometric data;
-- A mechanism for ensuring written notice is supplied to all data
subjects before the time biometric data is collected; and
-- A separate mechanism for ensuring written consent is obtained,
allowing the vendor to collect, possess, retain, store, and
disseminate biometric data before the time any such data is
obtained. [GN]
KANZHUN LTD: Settlement Deal in Bell Suit Wins Final Nod
--------------------------------------------------------
Kanzhun Ltd. disclosed in its Form 20-F Report for the fiscal
period ending December 31, 2022 filed with the Securities and
Exchange Commission on April 27, 2023, that the U.S. District Court
for the District of New Jersey gave final approval of the
settlement in the Bell securities class suit and terminated the
case on April 5, 2023.
The Company and certain of its officers and directors have been
named as defendants in a putative securities class action filed on
July 12, 2021 in the U.S. District Court for the District of New
Jersey, captioned Bell v. Kanzhun Limited et al, No. 2:21-cv-13543.
On March 4, 2022, Plaintiff filed the Amended Complaint,
purportedly brought on behalf of a class of persons who allegedly
suffered damages as a result of their trading in our securities
between June 11, 2021 and July 2, 2021, both inclusive. The action
alleges that the Company made false and misleading statements
regarding its business, operations and compliance practices in
violation of Sections 10(b) and 20(a) of the U.S. Securities
Exchange Act of 1934, and Rule 10b-5 promulgated thereunder.
Briefing on its motion to dismiss was completed in July 2022.
In September 2022, with the aid of a mediator, the parties reached
a tentative agreement in principle to settle the case.
On November 10, 2022, the Court granted preliminary approval of the
parties' settlement agreement, pursuant to which, without any
admission or finding of any wrongdoing on the part of any of the
Defendants, the parties agreed that, in consideration of
Kanzhun’s payment of US$2.25 million, all actual and potential
claims and causes of action that have been or could have been
alleged against Kanzhun and the individual defendant (including the
individuals mentioned above) are resolved and discharged and
precluded from being raised again in any future action.
On April 5, 2023, after holding a fairness hearing, the Court
granted final approval of the settlement and terminated the case.
Kanzhun Limited provides online recruitment services. The Company
connects job seekers and enterprise users through its mobile
application. Kanzhun offers a mobile-native product that promotes
instant direct chats between enterprise users and job seekers. [BN]
KROGER CO: Solano Seeks More Time to File Class Cert Briefing
-------------------------------------------------------------
In the class action lawsuit captioned as ELISHA SOLANO et al., v.
THE KROGER CO., dba Fred Meyer, Case No. 3:18-cv-01488-AR (D. Or.),
the Plaintiffs ask the Court to enter an order granting their
unopposed motion for extension of class certification briefing
deadlines.
On December 9, 2022, the Plaintiffs filed their motion to certify
the class and defendant filed its own motion to deny
certification.
On March 31, 2023, the Plaintiffs filed their Response in
Opposition to the Defendant's motion to deny class certification
and The defendant filed its response to the Plaintiffs' motion to
certify the class.
Kroger is an American retail company that operates supermarkets and
multi-department stores throughout the United States.
A copy of the Plaintiffs' motion dated April 25, 2023 is available
from PacerMonitor.com at https://bit.ly/3oSQN1C at no extra
charge.[CC]
The Plaintiffs are represented by:
Michael Fuller, Esq.
OLSENDAINES
US Bancorp Tower
111 SW 5th Ave., Suite 3150
Portland, OR 97204
E-mail: michael@underdoglawyer.com
Direct: (503) 222-2000
- and -
Kelly D. Jones, Esq.
KELLY DONOVAN JONES@
Telephone: (503) 847-4329
E-mail: kellydonovanjones@gmail.com
- and -
Young Walgenkim, Esq.
HANSON WALGENKIM
Telephone: (503) 383-1496
E-mail: young@hansonwalgenkim.com
- and -
Daniel J. Nichols, Esq.
JURISLAW LLP
Telephone (503) 334-0611
E-mail: dan@jurislawyer.com
LANDMARK RECOVERY: Hale Seeks to Certify Direct Care Employees
--------------------------------------------------------------
In the class action lawsuit captioned as MARANDA HALE, on behalf of
herself and others similarly situated, v. LANDMARK RECOVERY
DEVELOPMENT COMPANY LLC, et al., Case No. 3:22-cv-02011-JZ (N.D.
Ohio), the Plaintiff asks the Court to enter an order pursuant to
the Fair Labor Standards Act (FLSA), 29 U.S.C. section 216(b):
(a) Conditionally certifying this case as a collective action
under the FLSA on behalf of Named Plaintiff and others
similarly situated;
(b) Directing that notice be sent by United States mail, email
and
text message to the following:
"All current and former hourly, non-exempt direct care
employees of the Defendants in Ohio who were paid for at
least
40 hours of work in any workweek that they had a meal break
deduction applied to their hours worked beginning January
6,
2020, and continuing through the final disposition of this
case."
(c) Approving the proposed Notice and Consent to Join forms;
(d) Directing the Defendants Landmark Recovery of Ohio, LLC and
Landmark Recovery of Louisville, LLC to provide within 14
days
an electronic spreadsheet in Microsoft Excel or comma-
delimited format a roster of all individuals that fit the
definition above that includes their full names, dates of
employment, locations worked, job titles, last known
mailing
addresses, personal email addresses, and cellular phone
numbers; and
(e) Directing that the Court-approved Notice and Consent to
Join
forms be sent to such Potential Opt-In Plaintiffs within
14 days of receipt of the Roster using the Potential Opt-In
Plaintiffs' home addresses, email addresses, and cellular
phone numbers.
The Plaintiff worked at the Defendants' Praxis of the Firelands by
Landmark Recovery facility in Willard, Ohio from approximately
January 2022 to May 2022 as an hourly Patient Engagement
Specialist. The Plaintiff worked 40 or more hours in one or more
workweeks.
Landmark Recovery offers drug and alcohol rehab, detox, &
individualized treatment plans.
A copy of the Court's order dated April 25, 2023 is available from
PacerMonitor.com at https://bit.ly/427pfE0 at no extra charge.[CC]
The Plaintiff is represented by:
Matthew J.P. Coffman, Esq.
Adam C. Gedling, Esq.
Kelsie N. Hendren, Esq.
Tristan T. Aker, Esq.
COFFMAN LEGAL, LLC
1550 Old Henderson Road, Suite #126
Columbus, OH 43220
Telephone: (614) 949-1181
Facsimile: (614) 386-9964
E-mail: mcoffman@mcoffmanlegal.com
agedling@mcoffmanlegal.com
khendren@mcoffmanlegal.com
takers@mcoffmanlegal.com
LEPRINO FOODS: Court Partly Grants Walter Class Status Bid
----------------------------------------------------------
In the class action lawsuit captioned as FRED WALTER, an
individual, on behalf of himself and all members of the putative
class, v. LEPRINO FOODS COMPANY, a Colorado Corporation; LEPRINO
FOODS DAIRY PRODUCTS COMPANY, a Colorado Corporation; and DOES
1–100, inclusive, Case No. 2:20-cv-00700-AWI-BAM (E.D. Cal.) the
Court entered an order that:
1. Walter's certification motion is granted in part and denied
in part as follows:
a. Walter's late and short meal break claim is certified for
class aggregation under Rule 23(b)(3);
b. Walter's on-call breaks claims are not certified for class
aggregation under Rule 23;
c. Walter's on-duty meal period claim is NOT CERTIFIED for
class
aggregation under Rule 23.
d. Walter's pre-shift rounding claim is NOT CERTIFIED for
class
aggregation under Rule 23;
e. The class is defined as follows:
"All non-exempt hourly workers who are currently employed,
or
formerly have been employed, as non-exempt hourly
employees
at Leprino's Tracy plant in Tracy, California, at any time
within four years prior to the filing of the original
complaint until August 29, 2022.
f. Fred Walter is appointed as the class representative.
g. The Parris Law Firm and The Downey Law Firm are appointed
as
class counsel;
2. Leprino's Request for Court Guidance (Doc. No. 58) is
denied;
3. The parties must promptly MEET AND CONFER about the
submission
of a joint stipulated class notice and distribution plan.
4. This case is referred back to the assigned magistrate judge
for
further scheduling and other proceedings consistent with this
order.
Leprino manufactures and processes cheese and dairy ingredients.
A copy of the Court's order dated April 25, 2023 is available from
PacerMonitor.com at https://bit.ly/40KYPad at no extra charge.[CC]
LOS ANGELES, CA: Hearing on Class Status Bid Set for Oct. 14
------------------------------------------------------------
In the class action lawsuit captioned as GARRY MATTHEWS, et al., v.
CITY OF LOS ANGELES, et al., Case No. 2:22-cv-02944-FLA-PD (C.D.
Cal.), the Hon. Judge Fernando L. Aenlle-rocha entered an order
granting stipulation to extend scheduling order dates as follows:
Event New Date
Fact Discovery Cut-off Aug. 12, 2023
Expert Disclosure (Initial) Jan. 6, 2024
Expert Disclosure (Rebuttal) Jan. 20, 2024
Expert Discovery Cut-off Feb. 3, 2024
Last Day to Hear Motion for Class Oct. 14, 2023
Certification
Los Angeles is a sprawling Southern California city and the center
of the nation's film and television industry. '
A copy of the Court's order dated April 25, 2023 is available from
PacerMonitor.com at https://bit.ly/3ViljxX at no extra charge.[CC]
MICHAEL ARAM INC: Fines Sues Over Unsolicited Text Messages
-----------------------------------------------------------
MICHELLE FINE, individually and on behalf of all others similarly
situated, Plaintiff v. MICHAEL ARAM, INC., Defendant, Case No.
CACE-23-012965 (Fla. Cir., 7th Judicial, April 26, 2023) arises out
of the Defendant's violations of the Telephone Consumer Protection
Act and the Florida Telephone Solicitation Act.
The Defendant allegedly engages in unsolicited text messaging to
promote its product and goods to those who did not provide
Defendant with their prior express written consent as required by
the FTSA. In addition, the Defendant also sent text messages even
after 9:00 p.m. in violation of the TCPA's do-not-call regulations,
says the suit.
Michael Aram, Inc. is a foreign corporation that maintains its
primary place of business and headquarters in New Jersey. [BN]
The Plaintiff is represented by:
Rachel N. Dapeer, Esq.
DAPEER LAW, P.A.
20900 N.E. 30th Ave., Suite 417
Aventura, FL 33180
Telephone: (305) 610-5223
E-mail: rachel@dapeer.corn
- and -
Manuel S. Hiraldo, Esq.
HIRALDO P.A.
401 E. Las Olas Boulevard Suite 1400
Ft. Lauderdale, FL 33301
Telephone: (954) 400-4713
E-mail: mhiraldo@hiraldolaw.com
MICROGENICS CORP: Order Narrowing Steele-Warrick Claims Reaffirmed
------------------------------------------------------------------
In the case, NADEZDA STEELE-WARRICK and DARRYL SCHULTZ,
individually and on behalf of all others similarly situated,
Plaintiffs v. MICROGENICS CORPORATION, THERMO FISHER SCIENTIFIC,
INC., ANTHONY ANNUCCI, JAMES O'GORMAN, CHARLES KELLY, RICHARD
FINNEGAN, DONALD VENETTOZZI, ANTHONY RODRIGUEZ, COREY BEDARD, and
JENNIFER BOOTH, Defendants, Case No. 19-CV-6558-FB-VMS (E.D.N.Y.),
Judge Frederic Block of the U.S. District Court for the Eastern
District of New York reaffirms the Court's prior order granting in
part and denying in part the DOCCS Defendants' motions to dismiss.
In this putative class action under 42 U.S.C. Section 1983,
Plaintiffs Steele-Warrick and Schultz claim that they and thousands
of others under the jurisdiction of the New York State Department
of Corrections and Community Supervision ("DOCCS") were subject to
discipline based on false-positive results of faulty drug tests
developed by Microgenics Corp. and Thermo Fisher Scientific, Inc.
(collectively, "Microgenics Defendants"). In addition to the
Microgenics Defendants, the Plaintiffs have sued eight current and
former DOCCS employees (collectively, "DOCCS Defendants"). They
allege that those Defendants violated their rights under the Eighth
Amendment and the Substantive Due Process Clause of the Fourteenth
Amendment because they failed to take corrective action after
becoming aware that the tests were unreliable.
DOCCS Defendant Lieutenant Corey Bedard was charged with overseeing
the DOCCS drug testing program for inmates from 2011 until 2019.
Prior to 2016, DOCCS secured testing services from Siemens AG and
developed a close working relationship with its employee Brenda
Collum, who is not a party to this suit.
Collum left Siemens to work for the Microgenics Defendants in
November 2015. She emailed Bedard to suggest that DOCCS consider
using her new employer's services. Bedard then recommended the
switch from Siemens to his supervisors, including DOCCS Defendant
and Assistant Commissioner of Special Housing and Inmate
Disciplinary Programs Charles Kelly.
In 2017, DOCCS conducted a side-by-side comparison of Siemens's
tests and the Microgenics Defendants' "Indiko Plus" tests. The
Indiko Plus test for the opioid buprenorphine identified one sample
as positive that the Siemens' test did not. The sample was provided
by an inmate using codeine, a different opioid, pursuant to a
prescription. This misidentification did not cause Bedard any
concern; he simply accepted the Microgenics Defendants' explanation
that the supposedly more accurate and sensitive Indiko Plus assay
would solve any such cross-reactivity problems and would be
appropriate to discipline incarcerated individuals.
An initial contract between DOCCS and the Microgenics Defendants
was cancelled due to flaws in the bidding process. But in September
2018, DOCCS awarded a contract to the Microgenics Defendants to
provide Indiko Plus urinalysis analyzers and related services for
correctional facilities in New York. Bedard then worked with Collum
to draft a DOCCS directive to use Indiko Plus tests. Bedard passed
the directive up the chain of command to DOCCS Defendants Anthony
Rodriguez, Donald E. Venettozzi and Richard Finnegan. The Complaint
alleges that all three knew that the Indiko Plus test had
misidentified codeine as buprenorphine but did not question or
change the directive.
DOCCS Defendant and Deputy Commissioner James O'Gorman signed the
directive in December 2018. A month later, DOCCS began using the
Indiko Plus tests at all 52 of its facilities. At the same time,
DOCCS Defendant Jennifer Booth took over for Bedard as the de facto
liaison between the Microgenics Defendants and DOCCS.
Steele-Warrick was an inmate at DOCCS's Albion Correctional
Facility. Steele-Warrick was released to post-custody supervision
in May 2019. Her discipline was not overturned until September
2019, when her April 14th test result was determined to be a false
positive. She alleges that she was traumatized by her unjustified
punishment. She cries every day and suffers from depression due to
the stress of having her otherwise spotless record of good behavior
ruined.
Schultz was an inmate at DOCCS's Orleans Correctional Facility. In
December 2019, Schultz was released on parole. He alleges that he
would have been granted parole in August 2019 but for the second
positive test. He further alleges that he was traumatized by having
to endure two rounds of solitary confinement and disciplinary
proceedings while being so close to parole eligibility.
The Plaintiffs allege, in sum, that the DOCCS Defendants refused
and delayed remedial action in the face of hard evidence that the
Indiko Plus tests were faulty. More specifically, they allege that
for almost a year, the DOCCS Defendants refused to believe that
incarcerated individuals and their advocates were telling the truth
about the false positives, refused to consider the science behind
the testing or question the Microgenics Defendants'
representations, and refused to even consider that their
disciplinary system was fundamentally flawed."
All the DOCCS Defendants have moved, pursuant to Federal Rule of
Civil Procedure 12(b)(6), to dismiss the claims against them. In an
order dated March 31, 2023, the motions were summarily granted in
part and denied in part.
Judge Block opines that the Plaintiffs have failed to plausibly
allege an Eighth Amendment violation by the DOCCS Defendants. They
do, however, plausibly allege a Substantive Due Process claim
against Annucci, O'Gorman, Kelly, Finnegan and Bedard. Finally,
Annucci, O'Gorman, Kelly and Finnegan are not entitled to qualified
immunity at this stage of the litigation. Thus, Judge Block
reaffirms the Court's prior order granting in part and denying in
part the DOCCS Defendants' motions to dismiss.
A full-text copy of the Court's April 26, 2023 Opinion is available
at https://rb.gy/byeff from Leagle.com.
MATTHEW D. BRINCKERHOFF -- mbrinckerhoff@ecbawm.com -- Emery Celli
Brinckerhoff Abady Ward & Maazel LLP, New York, New York, KAREN L.
MURTAGH -- KMURTAGH@PLSNY.ORG -- Prisoners' Legal Services of New
York, Albany, New York, for the Plaintiffs.
SARANDE DEDUSHI, Assistant Attorney General, State of New York New
York, New York, for Defendants Annucci and O'Gorman.
ORIANA L. KILEY -- OKiley@woh.com -- Whiteman Osterman & Hanna,
LLP, Albany, New York, for Defendants Venettozzi, Rodriguez, and
Booth.
JEFFREY P. MANS, Law Office of Jeffrey P. Mans, Albany, New York,
for Defendant Kelly.
BENJAMIN W. HILL -- ben@capezzahill.com -- Capezza Hill, LLP,
Albany, New York, for Defendant Finnegan.
RYAN T. DONOVAN -- rdonovan@lawcdm.com -- Conway, Donovan & Manley,
PLLC, Albany, New York, for Defendant Bedard.
MONDELEZ INTERNATIONAL: Court Narrows Claims in Wallenstein Suit
----------------------------------------------------------------
In the class action lawsuit captioned as DAVID WALLENSTEIN, et al.,
v. MONDELEZ INTERNATIONAL, INC., et al., Case No. 3:22-cv-06033-VC
(N.D. Cal.), the Hon. Judge Vince Chhabria entered an order
granting in part and denying in part motion to dismiss Wallenstein
case.
Two the Plaintiffs, David Wallenstein and Montgomery Summa, allege
that the packaging for Wheat Thins crackers is misleading because
it falsely characterizes the crackers as "100% WHOLE GRAIN."
Wallenstein is from California, and he asserts two claims under
California law on behalf of a proposed class of California
consumers. Summa is from New York, and he asserts three claims
under New York law on behalf of a proposed class of New York
consumers.
Nabisco and the other defendants named in the complaint have filed
a motion to dismiss. They contend there is no personal jurisdiction
in California as to the New York claims, and they contend that
neither the Plaintiff has adequately alleged that the packaging is
misleading. The motion to dismiss Summa's New York claims for lack
of personal jurisdiction is granted, but the motion to dismiss the
California claims is denied, because Wallenstein has adequately
alleged that the packaging is misleading.
Mondelez is an American multinational confectionery, food, holding
and beverage and snack food company based in Chicago.
A copy of the Court's order dated April 25, 2023 is available from
PacerMonitor.com at https://bit.ly/3nazqsP at no extra charge.[CC]
NAVIENT SOLUTIONS: Appeals Arbitration Bid Denial in Botello
------------------------------------------------------------
Navient Solutions LLC filed an appeal from the District Court's
March 22, 2023 Order entered in the lawsuit entitled Ashley
Botello, individually, and on behalf of other similarly situated
consumers v. Navient Solutions, LLC, Case No. 2-22-cv-05601, in the
United States District Court for the District of New Jersey.
This suit, filed on September 16, 2022 is a class action for fraud
in violation of the Fair Credit Reporting Act and breach of
fiduciary duties in the course of servicing Plaintiff's student
loans.
As previously reported in the Class Action Reporter, the complaint
was removed from the Superior Court of the State of New Jersey,
Bergen County, to the U.S. District Court for District of New
Jersey on Sept. 16, 2022.
On November 21, 2022, the Defendant filed a MOTION to Compel
Arbitration, to Dismiss Case With Prejudice, and to Strike Class
Allegations, or in the Alternative, to Stay Pending Arbitration.
On March 22, 2023, Judge John Michael Vazquez signed an Order
denying Defendant's request.
The appellate case is captioned as Ashley Botello v. Navient
Solutions LLC, Case No. 23-1744, in the United States Court of
Appeals for the Third Circuit, filed on April 26, 2023.[BN]
Defendant-Appellant NAVIENT SOLUTIONS LLC is represented by:
Clayton J. Vignocchi, Esq.
HOLLAND & KNIGHT
31 W 52nd Street, 12th Floor
New York, NY 10019
Telephone: (212) 513-3372
Plaintiff-Appellee ASHLEY BOTELLO, individually, and on behalf of
other similarly situated consumers, is represented by:
Nicholas J. Linker, Esq.
Daniel Zemel, Esq.
ZEMEL LAW
660 Broadway
Paterson, NJ 07514
Telephone: (862) 227-3106
NAVY FEDERAL: Appeals Class Cert. Ruling in Morrow Breach Suit
--------------------------------------------------------------
NAVY FEDERAL CREDIT UNION filed an appeal from the District Court's
April 6, 2023 Order entered in the lawsuit entitled SIOBHAN MORROW
and TRACEE LE FLORE, individually and on behalf of all others
similarly situated, V. NAVY FEDERAL CREDIT UNION, Case No.
1:21-cv-00722-MSN-LRV, in the United States District Court for the
Eastern District of Virginia at Alexandria.
The suit, filed on June 16, 2021, is a class action against the
Defendant for breach of contract and breach of the covenant of good
faith and fair dealing. According to the complaint, the Defendant
breached its contractual promises with the Plaintiffs and all
others similarly situated accountholders by charging foreign
transaction (FT) fees on online purchases made in the U.S. The
Defendant's account documents indicate that FT Fees will only be
assessed when an accountholder uses his or her debit card in a
foreign county. The Plaintiffs and other accountholders have been
injured by these practices, the suit alleges.
As reported in the Class Action Reporter, the Hon. Judge Lindsey
Robinsons Vaala entered an order granting in part and denying in
part a joint motion to extend briefing schedule and close of fact
discovery on March 7, 2023.
Specifically, it was ordered that the Joint Motion is granted such
that Plaintiffs' opposition to Navy Federal's Motion to Exclude is
due on or before March 13, 2023, and Navy Federal's reply in
support of its Motion to Exclude is due on or before March 20,
2023.
It was further ordered that the Joint Motion is denied regarding
the request to extend the March 31, 2023 deadline for fact
discovery, except that the Nationwide Data discussed in the Joint
Motion may be produced by Navy Federal no later than 21 days after
the Court rules on Plaintiffs' Motion for Class Certification.
On March 24, 2023, District Judge Michael S. Nachmanoff entered an
Order denying Defendant's MOTION to Exclude the Testimony of Arthur
Olsen; conditionally granting Plaintiffs' January 20, 2023 motion
to certify class; and that accordance with Judge Vaala's order
dated March 7, 2023, Defendant shall produce the Nationwide Data to
Plaintiffs within 21 days of this Order.
On April 6, 2023, District Judge Nachmanoff signed amended his
March 24 Order to clarify that Plaintiffs' class is fully
certified; ORDERED that Plaintiffs' class shall be defined as: All
current and former Navy Federal Credit Union accountholders who
opened their account prior to March 1, 2022, that were charged an
ISA Fee on a debit card transaction made while the accountholder
was located in the United States between January 7, 2016, and March
24, 2023; and ORDERED that Defendant's Motion to Reconsider Class
Certification is DENIED AS MOOT.
The appellate case is captioned as Navy Federal Credit Union v.
Siobhan Morrow, Case No. 23-165, in the United States Court of
Appeals for the Fourth Circuit, filed on April 25, 2023.[BN]
Defendant-Petitioner NAVY FEDERAL CREDIT UNION is represented by:
Simona A. Agnolucci, Esq.
Nicholas Morton Hambley Reddick, Esq.
WILLKIE FARR & GALLAGHER LLP
1 Front Street
San Francisco, CA 94111
Telephone: (415) 858-7447
- and -
Donald Burke, Esq.
Michael Julian Gottlieb, Esq.
Meryl Conant Governski, Esq.
Mark Thomas Stancil, Esq.
WILLKIE FARR & GALLAGHER LLP
1875 K Street, NW
Washington, DC 20006-1238
Telephone: (202) 303-1037
- and -
Jason Ryan Hodge, Esq.
NELSON MULLINS RILEY & SCARBOROUGH, LLP
901 East Byrd Street
Richmond, VA 23219
Telephone: (804) 533-3891
Plaintiffs-Respondents SIOBHAN MORROW, individually and on behalf
of all others similarly situated, et al., are represented by:
Sophia Goren Gold, Esq.
KALIEL GOLD PLLC
950 Gilman Avenue
Berkeley, CA 94710
Telephone: (202) 350-4783
- and -
Heather Whitaker Goldstein, Esq.
David Matthew Wilkerson, Esq.
VAN WINKLE LAW FIRM
11 North Market Street
P. O. Box 7376
Asheville, NC 28802
Telephone: (828) 258-2991
- and -
Jae Kook Kim, Esq.
CARLSON LYNCH LLP
117 East Colorado Boulevard
Pasadena, CA 92101
Telephone: (619) 762-1910
- and -
Jeffrey M. Ostrow, Esq.
Jonathan Marc Streisfeld, Esq.
Daniel Tropin, Esq.
KOPELOWITZ OSTROW PA
1 West Las Olas Boulevard
Fort Lauderdale, FL 33301
Telephone: (954) 525-4100
- and -
Amanda J. Rosenberg, Esq.
KALIEL GOLD PLLC
1100 15th Street, NW
Washington, DC 20005
Telephone: (202) 350-4783
NEW YORK, NY: Order Scheduling Initial Case Management Entered
--------------------------------------------------------------
In the class action lawsuit captioned as KWAINE THOMPSON, v. CITY
OF NEW YORK, Case No. 1:21-cv-10371-VEC-BCM (Court), the Hon. Judge
Barbara Moses entered an order scheduling initial case management
conference as follows:
-- All pretrial motions and applications, including those related
to
scheduling and discovery (but excluding motions to dismiss or
for
judgment on the pleadings, for injunctive relief, for summary
judgment, or for class certification under Fed. R. Civ. P. 23)
must be made to Judge Moses and in compliance with this
Court's
Individual Practices in Civil Cases, available on the Court's
website at https://nysd.uscourts.gov/hon-barbara-moses.
-- The parties must be prepared to discuss the subjects set forth
in Fed. R. Civ. P. 16(b) and (c), specifically:
1. The issues in the case;
2. Whether any party intends to make a motion to dismiss or on
the pleadings; and
3. Whether any party wishes to amend a pleading or add new
parties, and what the deadline should be for moving for
leave
to do so.
The Plaintiff may wish to consult the legal clinic opened in this
District to assist people who are parties in civil cases and do not
have lawyers. The Clinic is run by a private organization called
the New York Legal Assistance Group (NYLAG); is it not part of, or
run by, the Court (and, among other things, therefore cannot accept
filings on behalf of the Court, which must still be made by any pro
se party through the Pro Se Intake Unit).
New York City comprises 5 boroughs sitting where the Hudson River
meets the Atlantic Ocean.
A copy of the Court's order dated April 25, 2023 is available from
PacerMonitor.com at https://bit.ly/3VkUvNR at no extra charge.[CC]
NEW YORK, NY: Plaintiffs Must File Class Cert Bid by Sept. 8
------------------------------------------------------------
In the class action lawsuit captioned as LOCAL 2507, UNIFORMED
EMTS, PARAMEDICS & FIRE INSPECTORS et al., v. CITY OF NEW YORK,
Case No. 1:22-cv-10336-AT-GWG (S.D.N.Y.), the Hon. Judge Gabriel W.
Gorenstein entered a revised scheduling order as follows:
1. All fact depositions that the Plaintiffs have noticed to date
shall be completed on or before June 7, 2023.
2. Disclosure of expert evidence from the Plaintiffs as required
by
Rule 26(a)(2)(A), (B) or (C), including the identities and
reports of experts, if any, will be made by July 7, 2023.
3. Disclosures of expert evidence from defendants as required by
Rule 26(a)(2)(A), (B) or (C) shall be produced on or before
August 4, 2023.
4. Defendant shall complete all fact depositions by August 4,
2023.
5. Depositions of experts shall be scheduled well in advance and
shall be completed on or before August 11, 2023.
6. The Plaintiffs shall file their motion for class
certification
on or before September 8, 2023.
7. Defendant shall file its opposition to class certification on
or
before October 6, 2023.
8. The Plaintiffs shall file their reply to defendant's
opposition
to class certification on or before October 20, 2023.
9. No extensions will be granted of these deadlines absent
unforeseeable and extraordinary circumstances.
On or before April 28, 2023, defendant will provide the Plaintiffs
with multiple dates of availability for each witness noticed for
deposition by the Plaintiffs.
The Plaintiffs shall serve Amended Interrogatories to replace
Interrogatory #3 and #4 of the Plaintiffs' First Set of
Interrogatories and First Request for Production of Documents. The
Defendant shall respond to those interrogatories within 7 days of
service.
The Defendant shall make Kamaldeep Deol available immediately to
meet and confer with the Plaintiffs' counsel and expert regarding
the location and availability of the discovery referenced in
Paragraph 3(b) and 3(d) above. If there is an employee who has
greater knowledge than Deol as to this topic, such employee shall
be made available for the same conference.
The above deadlines may be changed by mutual agreement of the
parties and without Court order as long as the changes do not
affect the revised case schedule deadlines below.
New York City comprises 5 boroughs sitting where the Hudson River
meets the Atlantic Ocean.
A copy of the Court's order dated April 25, 2023 is available from
PacerMonitor.com at https://bit.ly/41Qtows at no extra charge.[CC]
NORFOLK SOUTHERN: Ohio Inmate Joins Train Derailment Class Suit
---------------------------------------------------------------
Mike Gauntner of 21 WFMJ reports that an inmate who was sitting in
a prison cell nearly 20 miles from East Palestine when a Norfolk
Southern train hauling toxic chemicals went off the tracks has been
added as a plaintiff in a lawsuit consolidated from 31 other
cases.
U.S. District Court Judge Benita Pearson on May 2, 2023 ordered
that a lawsuit filed by 30-year-old Josh Turner last week be
included in the case against Norfolk Southern.
Turner claims that the spillage of vinyl chloride in the February
3rd derailment and the subsequent decision for a controlled burn
sent toxic chemicals into the environment.
Turner, who is serving a four-year sentence for robbery and
felonious assault at the Ohio Penitentiary on Coitsville-Hubbard
Road in Youngstown, alleges in the partially hand-written complaint
that he has been suffering from rashes, headaches, chest pain,
wheezing, and breathing problems which he attributes to impact of
vinyl chloride.
Claiming that prison officials have made no effort to provide
inmates with bottled water, Turner alleges that his constitutional
rights are being violated.
Last month Judge Pearson ordered a consolidation of 31 other class
action suits filed by lawyers on behalf of residents, workers, and
businesses that claim they suffered injury or damage as a result of
the derailment and its aftermath. [GN]
OAK GROVE: Kluender Seeks Proper OT Pay for Resident Care Aides
---------------------------------------------------------------
MICHELLE KLUENDER, on behalf of herself and all others similarly
situated, Plaintiff v. OAK GROVE ASSISTED CARE, LLC, Defendant,
Case No. 1:23-cv-00530-WCG (E.D. Wis., April 26, 2023) alleges
violations of the Fair Labor Standards Act of 1938 and the
Wisconsin's Wage Payment and Collection Laws.
In approximately June 2022, Defendant hired Plaintiff into the
position of resident care aide working primarily at Defendant's
Necedah, Wisconsin location. The Defendant allegedly failed to
compensate Plaintiff and other hourly paid, non-exempt employees
for compensable work performed each workweek, including but not
limited to an overtime rate of pay, says the suit.
Oak Grove Assisted Care, LLC owns, operates, and manages
residential care apartment complexes in the State of Wisconsin.
[BN]
The Plaintiff is represented by:
James A. Walcheske, Esq.
Scott S. Luzi, Esq.
David M. Potteiger, Esq.
WALCHESKE & LUZI, LLC
235 N. Executive Drive, Suite 240
Brookfield, WI 53005
Telephone: (262) 780-1953
Facsimile: (262) 565-6469
E-mail: jwalcheske@walcheskeluzi.com
sluzi@walcheskeluzi.com
dpotteiger@walcheskeluzi.com
OLIN CORP: Bid for Class Certification Hearing Tossed
-----------------------------------------------------
In the class action lawsuit captioned as MIAMI PRODUCTS & CHEMICAL
CO., On Behalf of Itself and All Others Similarly Situated, et al.,
v. OLIN CORPORATION, et al., Case No. 1:19-cv-00385-EAW-MJR
(W.D.N.Y.), the Hon. Judge Elizabeth A. Wolford entered an order
denying the Defendants' motion for a hearing regarding class
certification.
The concurrent expert proceeding portion of the evidentiary hearing
will continue until the Court has exhausted its questions. Once the
Court's questioning is completed, the Court will allow
cross-examination and re-direct examination by counsel of each
side's expert witness.
The Plaintiffs' motion for class certification and the associated
Daubert motions. It is anticipated that this argument will commence
on June 6, 2023, no earlier than 9:00 a.m.
The Court previously issued a Decision and Order in which it denied
several motions to seal, explaining that the presumption of public
access to judicial documents can be overcome only by a specific
showing that sealing is necessary to preserve higher values, and
that requests for sealing must be narrowly tailored.
Direct Purchaser Plaintiffs and Defendants dispute the need for an
evidentiary hearing on Direct Purchaser Plaintiffs' motion for
class certification and the associated Daubert motions.
Olin is an American manufacturer of ammunition, chlorine, and
sodium hydroxide.
A copy of the Court's order dated April 25, 2023, is available from
PacerMonitor.com at https://bit.ly/44iyHqb at no extra charge.[CC]
ONE BROOKLYN: Fails to Protect Patients' Info, Johnson Suit Says
----------------------------------------------------------------
KIYA JOHNSON, individually and on behalf of all others similarly
situated, Plaintiff v. ONE BROOKLYN HEALTH, Defendant, Case No.
512485/2023 (N.Y. Sup., April 26, 2023) alleges that the Defendant
has committed negligence, negligence per se, breach of fiduciary
duty, breach of confidences, breach of an implied contract, unjust
enrichment, and violations of both the consumer protection laws of
New York and the common law of New York.
Allegedly, One Brooklyn Health failed to implement measures
sufficient to adequately safeguard the highly sensitive personal
and medical data of its patients. As such, Plaintiff Kiya Johnson
brings this class action on behalf of herself and similarly
situated patients whose personally identifiable information and/or
protected health information was accessed and exposed to
unauthorized third parties during a data breach of OBH's system on
or about Nov. 19, 2022, and which OBH belatedly announced on or
about April 20, 2023. The Plaintiff seeks to obtain damages,
restitution, and injunctive relief for the Class from OBH as a
result of its recently announced data breach, says the suit.
One Brooklyn Health is a non-profit incorporated in Kings County in
the State of New York with a principal place of business located at
1545 Atlantic Avenue, Brooklyn. It provides comprehensive local
healthcare at three hospitals in Eastern Brooklyn and is comprised
of more than 600 providers with over 50 specialties. [BN]
The Plaintiff is represented by:
J. Burkett McInturff, Esq.
WITTELS MCINTURFF PALIKOVIC
305 Broadway, 7th Floor
New York, NY 10007
Telephone: (910) 476-7253
Facsimile: (914) 775-8862
E-mail: jbm@wittelslaw.com
- and -
Jonathan Shub, Esq.
Benjamin F. Johns, Esq.
Samantha E. Holbrook, Esq.
SHUB & JOHNS LLC
Four Tower Bridge
200 Barr Harbor Drive, Suite 400
West Conshohocken, PA 19428
Telephone: (610) 477-8380
E-mail: jshub@shublawyers.com
biohns@shublawvers.com
sholbrook@shublawyers.com
PELOTON INTERACTIVE: Court Denies Certification in Streaming Suit
-----------------------------------------------------------------
Jonathan Stempel of Insurance Journal reports that in a 74-page
decision May 2, U.S. District Judge Lewis Liman in Manhattan said
individual issues predominated over common issues affecting the
many thousands of customers in the proposed class, and therefore
the customers could not sue as a group.
The decision is a victory for New York-based Peloton, because class
actions can allow for greater recoveries at lower cost than when
plaintiffs sue individually.
Lawyers for the customers had no immediate comment.
Peloton had been accused of enticing people to buy its products
based on its improper commitment to provide an "ever-growing" or
"growing" library of on-demand classes.
Customers sued after Peloton decided in March 2019 to purge more
than half of its estimated 12,000 classes, following litigation by
music publishers that accused the company of streaming songs
without proper licensing.
According to the customers, Peloton knew this could happen, yet
kept charging full price for products containing copyrighted songs
by Adele, Beyonce, Luke Bryan, Drake, Ariana Grande, Madonna,
Justin Timberlake, Jay Z and other artists.
Liman said the customers could not sue on a theory they were
induced to pay premium prices because some might not have seen
Peloton's challenged statements. He also said the customers did not
measure the damages attributable to those statements.
In opposing class certification, Peloton said its prices remained
constant for more than a year after it removed classes, and that
not everyone saw its "ever-growing" or "growing" claims because it
did not advertise them widely.
Peloton settled the licensing lawsuit by the National Music
Publishers' Association and 14 members in February 2020.
The case is Passman et al v Peloton Interactive Inc, U.S. District
Court, Southern District of New York, No. 19-11711. [GN]
PEOPLEREADY INC: Reyes Seeks to Recover Unpaid OT Wages Under FLSA
------------------------------------------------------------------
GISELA REYES, Individually and for Others Similarly Situated v.
PEOPLEREADY, INC., a Washington ForProfit Corporation, Case No.
3:23-cv-05385 (W.D. Wash., Apr. 28, 2023) seeks to recover unpaid
overtime wages, in violation of the Fair Labor Standards Act, the
Pennsylvania Minimum Wage Act, and the Pennsylvania Wage Payment
and Collection Law.
Ms. Reyes regularly worked more than 40 hours in a workweek. But,
PeopleReady only pays Ms. Reyes and the Putative Class Members for
the overtime hours that PeopleReady pre-approves. Further,
PeopleReady also deducts 30 minutes a day from these employees'
work time for so-called meal breaks if they are unable to take, and
do not clock out and record they took, a meal break. Ms. Reyes and
the Putative Class Members are thus not paid for that time. But
PeopleReady fails to provide Reyes and the Putative Class Members
with bonafide meal breaks, says the suit.
Ms. Reyes worked for PeopleReady as a Staffing Specialist in
Pennsylvania from September 2021 until August 2022. Throughout her
employment, PeopleReady classified Ms. Reyes as non-exempt and paid
her on an hourly basis, the suit alleges.
PeopleReady is a staffing and employment recruitment agency that
provide "on-demand labor and highly skilled workers . . . [to] a
wide range of industries, including construction, manufacturing and
logistics, retail, and hospitality."[BN]
The Plaintiff is represented by:
Michael C. Subit, Esq.
FRANK FREED SUBIT & THOMAS LLP
705 Second Ave., Suite 1200
Seattle, Pennsylvania 98104
Telephone: (206) 624-6711
E-mail: msubit@frankfreed.com
- and -
Michael A. Josephson, Esq.
Andrew W. Dunlap, Esq.
JOSEPHSON DUNLAP, LLP
11 Greenway Plaza, Suite 3050
Houston, TX 77046
Telephone: (713)352-1100
E-mail: mjosephson@mybackwages.com
adunlap@mybackwages.com
- and -
Richard J. (Rex) Burch, Esq.
BRUCKNER BURCH, PLLC
11 Greenway Plaza, Suite 3025
Houston, TX 77046
Telephone: (713) 877-8788
E-mail: rburch@brucknerburch.com
PERF OPCO LLC: Hwang Files ADA Suit in E.D. New York
----------------------------------------------------
A class action lawsuit has been filed against Perf Opco, LLC. The
case is styled as Jenny Hwang, on behalf of herself and all others
similarly situated v. Perf Opco, LLC, Case No. 1:23-cv-03163
(E.D.N.Y., April 26, 2023).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Perf Opco, LLC doing business as Perfumania --
https://perfumania.com/ -- carries a large variety of perfume,
colognes & more.[BN]
The Plaintiff is represented by:
Mars Khaimov, Esq.
14749 71st Ave.
Flushing, NY 11367
Phone: (917) 915-7415
Email: mars@khaimovlaw.com
PH-D FEMININE HEALTH: Campbell Files Suit in S.D. New York
----------------------------------------------------------
A class action lawsuit has been filed against pH-D Feminine Health
LLC. The case is styled as Chandra Campbell, individually and on
behalf of all others similarly situated v. pH-D Feminine Health
LLC, Case No. 1:23-cv-03450 (S.D.N.Y., April 25, 2023).
The nature of suit stated as Other Fraud.
pH-D Feminine Health -- https://www.phdfemininehealth.com/ --
offers solutions for feminine odor and care including our #1
best-selling boric acid suppository.[BN]
The Plaintiff is represented by:
Philip Lawrence Fraietta, Esq.
BURSOR & FISHER, P.A.
888 Seventh Avenue
New York, NY 10019
Phone: (646) 837-7150
Email: pfraietta@bursor.com
PHENOMENEX INC: Encabo Sues Over Unpaid Minimum, Overtime Wages
---------------------------------------------------------------
Caryl Lyra Encabo, on behalf of herself and others similarly
situated v. PHENOMENEX, INC.; and DOES 1 to 100, inclusive, Case
No. 23STCV09140 (Cal. Super. Ct., Los Angeles Cty., April 25,
2023), is brought against the Defendants' failure to pay wages for
all hours worked at the legal minimum wage and failure to pay wages
for overtime hours worked at the overtime rate of pay:
The Plaintiffs seeks unpaid wages and interest thereon from the
Defendants for failed to pay wages for all hours worked at minimum
wage and all overtime hours worked at the overtime rate of pay;
failed to authorize or permit all legally required and/or compliant
meal periods or pay meal period premium wages; failed to authorize
or permit all legally required and/or compliant rest periods or pay
rest period premium wages; failed to pay accrued and vested
vacation/PTO wages; statutory penalties for failure to provide
accurate wage statements; statutory waiting time penalties in the
form of continuation wages for failed to timely pay employees all
wages due upon separation of employment; injunctive relief and
other equitable relief; reasonable attorneys' fees pursuant to
Labor Code; and interest brought on behalf of Plaintiff and others
similarly situated, says the complaint.
The Plaintiff was employed by the Defendants as an hourly
non-exempt employee from May 2019, until October 8, 2022.
PHENOMENEX, INC. is authorized to do business within the State of
California and is doing business in the State of California.[BN]
The Plaintiff is represented by:
Joseph Lavi, Esq.
Vincent C. Granberry, Esq.
Courtney M. Miller, Esq.
LAVI & EBRAHIMIAN, LLP
8889 W. Olympic Boulevard, Suite 200
Beverly Hills, CA 90211
Phone: (310) 432-0000
Facsimile: (310) 432-0001
Email: jlavi@lelawfirm.com
vgranberry@lelawfirm.com
cmiller@lelawfirm.com
WHT1@lelawfirm.com
RASPOUTINE L.A.: Howard-Troll Files Suit in Cal. Super. Ct.
-----------------------------------------------------------
A class action lawsuit has been filed against Raspoutine L.A., et
al. The case is styled as Genevieve Howard-Troll, individually, on
behalf of the State of California and on behalf of other aggrieved
employees v. Raspoutine Los Angeles, a California Corporation;
Alexander Evraert, an individual; Logan Maggiolino, an individual;
Does 1 through 100, inclusive, Case No. 23SMCV01810 (Cal. Super.
Ct., Los Angeles Cty., April 26, 2023).
Raspoutine L.A. -- https://raspoutine.com/losangeles/ -- is a night
club in West Hollywood, California.[BN]
The Plaintiff is represented by:
Aidin D. Ghavimi, Esq.
STARPOINT, LC
15233 Ventura Boulevard, Suite PH16
Sherman Oaks, CA 91403
Fax: (424) 255-4035
Phone: (310) 424-9971
Email: service@starpointlaw.com
REALPAGE INC: Carter Suit Transferred to M.D. Tennessee
-------------------------------------------------------
The case styled as Kim Carter, individually and on behalf of all
others similarly situated v. REALPAGE, INC.; GREYSTAR REAL ESTATE
PARTERS, LLC; LINCOLN PROPERTY COMPANY; MID AMERICA APARTMENT
COMMUNITIES, INC.; RPM LIVING, LLC; CORTLAND PARTNERS, LLC; CUSHMAN
& WAKEFIELD, INC.; KNIGHTVEST RESIDENTIAL; CAMDEN PROPERTY TRUST;
AVENUE5 RESIDENTIAL, LLC; DAYRISE RESIDENTIAL, LLC; KAIROI
MANAGEMENT, LLC; ALLIED ORION GROUP, LLC; and CONTI CAPITAL; Case
No. 1:22-cv-01332, was transferred from the U.S. District Court for
the Western District of Texas, to the U.S. District Court for the
Middle District of Tennessee on April 26, 2023.
The District Court Clerk assigned Case No. 3:23-cv-00411 to the
proceeding.
The nature of suit is stated as Anti-Trust.
RealPage -- https://www.realpage.com/ -- provides data analytics,
property management software, and services to efficiently manage
rental properties and real estate.[BN]
The Plaintiff is represented by:
Kyle Dingman, Esq.
SCOTT+SCOTT ATTORNEYS AT LAW LLP
3445 Executive Center Drive, Suite 125
Austin, TX 78731
Phone: (512) 337-8430
Facsimile: (512) 727-3432
Email: kdingman@scott-scott.com
- and -
David R. Scott, Esq.
Amanda Lawrence, Esq.
Patrick McGahan, Esq.
Michael Srodoski, Esq.
G. Dustin Foster, Esq.
SCOTT+SCOTT ATTORNEYS AT LAW LLP
156 South Main Street
P.O. Box 192
Colchester, CT 06145
Phone: (860) 537-5537
Facsimile: (860) 537-4432
Email: david.scott@scott-scott.com
alawrence@scott-scott.com
pmcgahan@scott-scott.com
msrodoski@scott-scott.com
gfoster@scott-scott.com
- and -
Thomas J. Undlin, Esq.
Stacey Slaughter, Esq.
Geoffrey H. Kozen, Esq.
J. Austin Hurt, Esq.
ROBINS KAPLAN LLP
800 LaSalle Avenue, Suite 2800
Minneapolis, MN 55402
Phone: (612) 349-8500
Facsimile: (612) 339-4181
Email: tundlin@robinskaplan.com
sslaughter@robinskaplan.com
gkozen@robinskaplan.com
ahurt@robinskaplan.com
- and -
Vincent Briganti, Esq.
Christian P. Levis, Esq.
Peter Demato, Esq.
Radhika Gupta, Esq.
LOWEY DANNENBERG, P.C.
44 South Broadway, Suite 1100
White Plains, NY 10601
Phone: (914) 997-0500
Fax: (914) 997-0035
Email: vbriganti@lowey.com
clevis@lowey.com
pdemato@lowey.com
rgupta@lowey.com
The Defendants are represented by:
Jillian C. Beck, Esq.
HOGAN LOVELLS US LLP
609 Main Street, Suite 4200
Houston, TX 77002
Phone: (713) 632-1465
Fax: (713) 632-1401
Email: jillian.beck@hoganlovells.com
- and -
David Alan Walton, Esq.
Troy L. Hales, Esq.
BELL NUNNALLY & MARTIN LLP
2323 Ross Avenue, Suite 1900
Dallas, TX 75201
Phone: (214) 740-1445
Fax: (214) 740-5745
Email: dwalton@bellnunnally.com
thales@bellnunnally.com
- and -
Chelsea Leiann Futrell, Esq.
Cliff A. Wade, Esq.
BAKER LOPEZ
5728 LBJ Freeway, Ste. 150
Dallas, TX 75240
Phone: (469) 206-9381
Email: chelsea.futrell@bakerlopez.com
cliff.wade@bakerlopez.com
- and -
Robert D. O'Conor, Esq.
O'CONOR, MASON & BONE, P.C.
1616 S. Voss, Suite 200
Houston, TX 77057
Phone: (713) 647-7511
Fax: (713) 647-7512
Email: boconor@ombtxlaw.com
- and -
Eliot Fielding Turner, Esq.
NORTON ROSE FULBRIGHT US LLP
1301 McKinney, Suite 5100
Houston, TX 77010
Phone: (713) 651-5113
Email: eliot.turner@nortonrosefulbright.com
- and -
Kevin Fulton, Esq.
THE FULTON LAW GROUP PLLC
7676 Hillmont Street, Suite 191
Houston, TX 77040
Phone: (713) 589-6964
Fax: (832) 201-8847
Email: kevin@fultonstrahan.com
- and -
Ronald W. Breaux, Esq.
Bradley W. Foster, Esq.
HAYNES AND BOONE, LLP
2323 Victory Avenue, Suite 700
Dallas, TX 75202-3789
Phone: (214) 651-5580
Fax: (214) 651-5940
Email: ron.breaux@haynesboone.com
brad.foster@haynesboone.com
REALPAGE INC: Kempton Files Suit in M.D. Tennessee
--------------------------------------------------
A class action lawsuit has been filed against REALPAGE, INC. The
case is styled as Gary Kempton and Ryan Daniel, Individually and on
Behalf of All Others Similarly Situated v. REALPAGE, INC., GREYSTAR
REAL ESTATE PARTNERS, LLC, LINCOLN PROPERTY COMPANY, FPI
MANAGEMENT, INC., MID-AMERICA APARTMENT COMMUNITIES, INC., AVENUE5
RESIDENTIAL, LLC, EQUITY RESIDENTIAL, ESSEX PROPERTY TRUST, INC.,
THRIVE COMMUNITIES MANAGEMENT, LLC, and SECURITY PROPERTIES INC.,
INC., THRIVE COMMUNITIES MANAGEMENT, LLC, and SECURITY PROPERTIES
INC., Case No. 3:23-cv-00419 (M.D. Tenn., April 27, 2023).
The nature of suit is stated as Anti-Trust for Antitrust
Litigation.
RealPage -- https://www.realpage.com/ -- provides data analytics,
property management software, and services to efficiently manage
rental properties and real estate.[BN]
The Plaintiff is represented by:
Jerry E. Martin, Esq.
Paul J. Bruno, Esq.
David W. Garrison, Esq.
Nicole A. Chanin, Esq.
BARRET JOHNSTON MARTIN & GARRISON, PLLC
414 Union Street, Suite 900
Nashville, TN 37219
Phone: 615/244-2202
Fax: 615/252-3798
Email: jmartin@barrettjohnston.com
pbruno@barrettjohnston.com
dgarrison@barrettjohnston.com
nchanin@barrettjohnston.com
- and -
Christopher M. Wood, Esq.
Henry S. Bator, Esq.
ROBBINS GELLER RUDMAN & DOWD LLP
414 Union Street, Suite 900
Nashville, TN 37219
Phone: 615/244-2203
Fax: 615/252-3798
- and -
Darren J. Robbins, Esq.
David W. Mitchell, Esq.
Ashley M. Kelly, Esq.
Arthur L. Shingler III, Esq.
ROBBINS GELLER RUDMAN & DOWD LLP
655 West Broadway, Suite 1900
San Diego, CA 92101-8498
Phone: 619/231-1058
Fax: 619/231-7423
- and -
Aelish M. Baig, Esq.
ROBBINS GELLER RUDMAN & DOWD LLP
Post Montgomery Center
One Montgomery Street, Suite 1800
San Francisco, CA 94104
Phone: 415/288-4545
Fax: 415/288-4534
- and -
Paul J. Geller, Esq.
Stuart A. Davidson, Esq.
ROBBINS GELLER RUDMAN & DOWD LLP
225 NE Mizner Boulevard, Suite 720
Boca Raton, FL 33432
Phone: 561/750-3000
Fax: 561/750-3364
- and -
Chad Johnson, Esq.
Desiree Cummings, Esq.
ROBBINS GELLER RUDMAN & DOWD LLP
420 Lexington Avenue, Suite 1832
New York, NY 10170
Phone: 212/432-5100
REALPAGE INC: Vincin Suit Transferred to M.D. Tennessee
-------------------------------------------------------
The case styled as Selena Vincin, Laura Boelens, Phillip Mackie,
and Anna Rodriguez, individually and on behalf of all others
similarly situated v. REALPAGE, INC.; GREYSTAR REAL ESTATE PARTERS,
LLC; LINCOLN PROPERTY COMPANY; MID AMERICA APARTMENT COMMUNITIES,
INC.; RPM LIVING, LLC; CORTLAND PARTNERS, LLC; CUSHMAN & WAKEFIELD,
INC.; KNIGHTVEST RESIDENTIAL; CAMDEN PROPERTY TRUST; AVENUE5
RESIDENTIAL, LLC; DAYRISE RESIDENTIAL, LLC; KAIROI MANAGEMENT, LLC;
ALLIED ORION GROUP, LLC; and CONTI CAPITAL; Case No. 1:22-cv-01329,
was transferred from the U.S. District Court for the Western
District of Texas, to the U.S. District Court for the Middle
District of Tennessee on April 26, 2023.
The District Court Clerk assigned Case No. 3:23-cv-00410 to the
proceeding.
The nature of suit is stated as Anti-Trust.
RealPage -- https://www.realpage.com/ -- provides data analytics,
property management software, and services to efficiently manage
rental properties and real estate.[BN]
The Plaintiff is represented by:
Kyle Dingman, Esq.
SCOTT+SCOTT ATTORNEYS AT LAW LLP
3445 Executive Center Drive, Suite 125
Austin, TX 78731
Phone: (512) 337-8430
Facsimile: (512) 727-3432
Email: kdingman@scott-scott.com
- and -
David R. Scott, Esq.
Amanda Lawrence, Esq.
Patrick McGahan, Esq.
Michael Srodoski, Esq.
G. Dustin Foster, Esq.
SCOTT+SCOTT ATTORNEYS AT LAW LLP
156 South Main Street
P.O. Box 192
Colchester, CT 06145
Phone: (860) 537-5537
Facsimile: (860) 537-4432
Email: david.scott@scott-scott.com
alawrence@scott-scott.com
pmcgahan@scott-scott.com
msrodoski@scott-scott.com
gfoster@scott-scott.com
- and -
Thomas J. Undlin, Esq.
Stacey Slaughter, Esq.
Geoffrey H. Kozen, Esq.
J. Austin Hurt, Esq.
ROBINS KAPLAN LLP
800 LaSalle Avenue, Suite 2800
Minneapolis, MN 55402
Phone: (612) 349-8500
Facsimile: (612) 339-4181
Email: tundlin@robinskaplan.com
sslaughter@robinskaplan.com
gkozen@robinskaplan.com
ahurt@robinskaplan.com
- and -
Vincent Briganti, Esq.
Christian P. Levis, Esq.
Peter Demato, Esq.
Radhika Gupta, Esq.
LOWEY DANNENBERG, P.C.
44 South Broadway, Suite 1100
White Plains, NY 10601
Phone: (914) 997-0500
Fax: (914) 997-0035
Email: vbriganti@lowey.com
clevis@lowey.com
pdemato@lowey.com
rgupta@lowey.com
The Defendants are represented by:
Jillian C. Beck, Esq.
HOGAN LOVELLS US LLP
609 Main Street, Suite 4200
Houston, TX 77002
Phone: (713) 632-1465
Fax: (713) 632-1401
Email: jillian.beck@hoganlovells.com
- and -
Gregory J. Casas, Esq.
GREENBERG TRAURIG, LLP (AUSTIN OFFICE)
300 West 6th Street, Suite 2050
Austin, TX 78701
Phone: (512) 320-7238
Email: casasg@gtlaw.com
- and -
Todd R. Seelman, Esq.
LEWIS, BRISBOIS, BISGAARD & SMITH, LLP (DENVER OFFICE)
1700 Lincoln Street, Suite 4000
Denver, CO 80203
Phone: (720) 292-2002
Fax: (303) 861-7767
Email: Todd.Seelman@lewisbrisbois.com
- and -
Chelsea Leiann Futrell, Esq.
Cliff A. Wade, Esq.
BAKER LOPEZ
5728 LBJ Freeway, Ste. 150
Dallas, TX 75240
Phone: (469) 206-9381
Email: chelsea.futrell@bakerlopez.com
cliff.wade@bakerlopez.com
- and -
Daniel David, Esq.
BAKER BOTTS L.L.P.
One Shell Plaza
910 Louisiana, Suite 3609
Houston, TX 77002
Phone: (713) 229-4055
Fax: (713) 229-2855
Email: danny.david@bakerbotts.com
- and -
Ronald W. Breaux, Esq.
Bradley W. Foster, Esq.
HAYNES AND BOONE, LLP
2323 Victory Avenue, Suite 700
Dallas, TX 75202-3789
Phone: (214) 651-5580
Fax: (214) 651-5940
Email: ron.breaux@haynesboone.com
brad.foster@haynesboone.com
REGIONAL EXPRESS: Seeks More Time to File Class Cert Response
-------------------------------------------------------------
In the class action lawsuit captioned as Cyle Dixon, v. Regional
Express Clev Inc., et al., Case No. 1:22-cv-02288-DAR (N.D. Ohio),
the Defendants file unopposed motion for extension of time to file
their responsive briefing to the Plaintiff's motion for conditional
certification and court-supervised notice to potential opt-in
Plaintiffs).
The Defendants' response date is presently due by April 28, which
is 14 days from the date of filing pursuant to Local Rule 7.1(d).
The defense respectfully requests until on or before May 5, 2023,
to file their papers. The defense makes this request because of
defense counsel's calendar constraints, and this is not meant to
delay the proceedings or prejudice anyone.
A copy of the Court's order dated April 25, 2023 is available from
PacerMonitor.com at https://bit.ly/41QHIoK at no extra charge.[CC]
The Plaintiff is represented by:
Robi J. Baishnab, Esq.
Shannon M. Draher, Esq.
1360 E. 9th St., Ste. 808
Cleveland, OH 44114
E-mail: rbaishnab@ohlaborlaw.com
sdraher@ohlaborlaw.com
The Defendants are represented by:
David A. Welling
CHOKEN WELLING LLP
3020 W. Market St.
Akron, OH 44333
Telephone: (330) 865-4949
Facsimile: (330) 865-3777
E-mail: davidw@choken-welling.com
RESPONDUS INC: Veiga Sues Over Unlawful Collection of Biometrics
----------------------------------------------------------------
Lucius Veiga, Alex Parker Zimmerman, Courtnie Patterson, Trevonte
Johnson, Cody Powell, Daniel Fee and Brittany Harvey, individually
and on behalf of all others similarly situated v. RESPONDUS, INC.,
Case No. 2023LA000430 (Ill. Cir. Ct., DuPage Cty., April 25, 2023),
is brought against the Defendant's violation of the Illinois'
Biometric Information Privacy Act ("BIPA") by collecting,
capturing, using, storing, and sharing Plaintiff's and class
members' biometric identifiers or biometric information without
informed written consent and failure to follow the BIPA's express
disclosure and consent requirements and failure to comply with the
destruction requirements for biometric identifiers and information
was an invasion of Plaintiff's personal rights and the rights of
the class members she represents.
Respondus provides sophisticated digital surveillance technologies
to third parties, such as schools that wish to monitor college and
high school students during academic assessments. One of Respondus'
automatic proctoring tools called Respondus Monitor captures and
stores vast amounts of data, including facial recognition data,
facial detection data, recorded patterns of keystrokes, eye
monitoring data, gaze monitoring data, and camera and microphone
recordings to effectively surveil students taking online exams.
Generally, students have no choice but to use Respondus Monitor if
their educational institutions selected Respondus Monitor as the
automatic proctoring solution for courses in which they are
enrolled. Additionally, virtually all students who are required to
use Respondus' proctoring system download Respondus' software tools
on their personal electronic devices while in their personal
residences, further invading their privacy.
Many customers of the Defendant, including the universities
attended by the Plaintiffs, have utilized the chosen and exclusive
remote proctoring tool, Respondus Monitor, which captures, uses,
and stores vast amounts of data, including facial-recognition data,
facial detection data, recorded patterns of keystrokes, eye
monitoring data, gaze monitoring data, and camera and microphone
recordings to effectively surveil students taking online exams.
Lewis owns, has access to, and possesses this data. Through
Respondus Monitor, the Defendant collects, captures, and stores
everything from a student's facial features to their voice through
a web portal accessed through the student's personal device.
All the while, students are left in the dark about the vast amount
of information Respondus and their university collects. They do not
disclose or obtain written consent before collecting, capturing, or
storing users' biometric data. They also fail to disclose what they
do with that biometric data after collection and do not comply with
BIPA's retention and destruction requirements for private entities
that possess biometric identifiers. As a result, the Plaintiffs
bring this action to enforce her legal rights under the BIPA and
those of the proposed class of consumers they seek to represent,
says the complaint.
The Plaintiffs are natural persons.
Respondus, Inc. is a software company that develops "online
proctoring software" to prevent cheating during online exams.[BN]
The Plaintiff is represented by:
Gary M. Klinger, Esq.
MILBERG COLEMAN PHILLPS GROSSMAN PLLC
227 W. Monroe Street, Suite 2100
Chicago, IL 60606
Phone: (865) 247-0047
Fax: (866) 252-0878
Email: gklinger@milberg.com
- and -
Brian K. Murphy, Esq.
Jonathan P. Misny, Esq.
MURRAY MURPHY MOUL + BASIL LLP
1114 Dublin Road
Columbus, OH 43215
Phone: (614) 488-0400
Facsimile: (614) 488-0401
Email: murphy@mmmb.com
- and -
Samuel J. Strauss, Esq.
Raina C Borrelli, Esq.
TURKE & STRAUSS LLP
613 WILLIAMSON ST., STE 201
MADISON, WI 53703
Phone: (608) 237-1775
Fax: (608) 509-4423
Email: sam@turkestrauss.com
raina@turkestrauss.com
- and -
Anthony I. Paronich, Esq.
Paronich Law, P.C.
350 Lincoln Street, Suite 2400
Hingham, MA 02043
Phone: (508) 221-1510
Email: anthony@paronichlaw.com
RHODE ISLAND HOUSING: Martinez Files Suit in D. Rhode Island
------------------------------------------------------------
A class action lawsuit has been filed against Rhode Island Housing
and Mortgage Finance Corporation. The case is styled as Joseph
Martinez, Annette Martinez, on behalf of themselves and all other
similarly situated v. Rhode Island Housing and Mortgage Finance
Corporation, Case No. 1:83-cv-00319 (D.R.I., April 24, 2023).
The nature of suit is stated as Accommodations Civil Rights for the
Civil Rights Act.
Rhode Island Housing and Mortgage Finance Corporation --
https://www.rihousing.com/ -- is a mortgage lender in Providence,
Rhode Island.[BN]
The Plaintiffs are represented by:
Jennifer Louise Wood, Esq.
RI CENTER FOR JUSTICE
1 Empire Plaza, Suite 410
Providence, RI 02903
Phone: (401) 491-1101
Email: jwood@centerforjustice.org
RICH HOLDINGS: Flores Files Suit in Cal. Super. Ct.
---------------------------------------------------
A class action lawsuit has been filed against Rich Holdings, Inc.,
et al. The case is styled as Renato Flores, individually and on
behalf of himself and all others similarly situated v. Rich
Holdings, Inc., Rich Products Corporation, Case No.
STK-CV-UOE-2023-0004230 (Cal. Super. Ct., San Joaquin Cty., April
26, 2023).
The case type is stated as "Unlimited Civil Other Employment."
Rich Holdings Inc. -- https://www.richs.com/ -- operates as a
frozen baked food wholesaler. The Company offers cakes, sweet
starters, bakery, pizza, beverages, and desserts.[BN]
The Plaintiff is represented by:
James R. Hawkins, Esq.
JAMES HAWKINS APLC
9880 Research Drive, Suite 200
Irvine, CA 92318
Phone: (949) 387-7200
Fax: (949) 387-6676
Email: James@jameshawkinsaplc.com
RITE AID: Neu Sues Over Lidocaine Patches' Adhesion Defects
------------------------------------------------------------
Erin Neu, individually and on behalf of all others similarly
situated v. Rite Aid Corporation, Case No. 2:23-cv-03242-JMA-ST
(E.D.N.Y., Apr. 29, 2023) alleges that the Defendant's adhesive
patches that are labeled and marketed as "Maximum Strength" and
capable of delivering 4% lidocaine which would "Last[s] Up to 12
Hours", is unable to adhere to the skin for more than four hours,
often peeling off within minutes of light activity, which renders
the "Up to 12 Hours of Relief" misleading, because this is a
significant disparity between what is promised and what is
delivered.
The front label representations of the Product include "Maximum
Strength," "Pain Relief Lidocaine Patch," "Topical Anesthetic,"
"Lasts up to 12 hours," "4% Lidocaine," "desensitizes aggravated
nerves & relieves pain," "Medicated for targeted pain relief,"
"Stay-put flexible path," "No-mess, easy to apply and remove," and
"Odor free," with radiating circles on the package alluding to the
Product's ability to decrease and/or eliminate pain. The Defendant
knew the "maximum strength" claim would mislead such purchasers
because it was aware of their adhesion failures through
communications from customers via its website, social media and
direct mail, among other means, the Plaintiff contends.
The Defendant did not tell the Plaintiff and consumers that the
Product was prone to greater detachment when engaged in regular
daily activities such as walking and sleeping, the Plaintiff adds.
As a result of the alleged false and misleading representations,
the Product is sold at a premium price, approximately no less than
$8.99 per box of six patches, excluding tax and sales, higher than
similar products, represented in a non-misleading way, and higher
than it would be sold for absent the misleading representations and
omissions.
The Plaintiff purchased the Product at Defendant's retail stores in
New York such as in Suffolk County, between May 2021 and April
2023, and/or among other times. The Plaintiff purchased the Product
to provide pain relief to her neck, back, elbows and shoulders.
Rite Aid is a retailer for prescriptions, over-the-counter items,
food, household goods and other sundries.[BN]
The Plaintiff is represented by:
Spencer Sheehan, Esq.
SHEEHAN & ASSOCIATES, P.C.
60 Cuttermill Rd Ste 412
Great Neck NY 11021
Telephone: (516) 268-7080
E-mail: spencer@spencersheehan.com
- and -
Michael R. Reese, Esq.
REESE LLP
100 W 93rd St 16 Fl
New York NY 10025
Telephone: (212) 643-0500
E-mail: mreese@reesellp.com
ROBINHOOD FINANCIAL: Scarborough Suit Transferred to S.D. Florida
-----------------------------------------------------------------
The case styled as Maurice Scarborough, Scott Schiller, each
individually, and on behalf of all others similarly situated v.
Robinhood Financial LLC, Robinhood Securities, LLC, Robinhood
Markets, Inc., Case No. 2:23-cv-02622 was transferred from the U.S.
District Court for the Central District of California, to the U.S.
District Court for the Southern District of Florida on April 26,
2023.
The District Court Clerk assigned Case No. 3:23-cv-23057 to the
proceeding.
The nature of suit is stated as Securities/Commodities for
Securities Exchange Act.
Robinhood Financial LLC (Robinhood) -- http://www.robinhood.com/--
a subsidiary of Robinhood Markets Inc, is a stock brokerage firm,
which provides brokerage clearing services.[BN]
The Plaintiff is represented by:
Maurice D. Pessah, Esq.
PESSAH LAW GROUP, PC
9100 Wilshire Boulevard, Suite 850E
Beverly Hills, CA 90212
Phone: (310) 772-2261
Email: maurice@pessahgroup.com
- and -
Stuart N. Chelin, Esq.
CHELIN LAW FIRM
16133 Ventura Boulevard, Suite 700
Encino, CA 91436
Phone: (310) 556-9664
Email: stuart@chelinlaw.com
- and -
Jeffrey A. Klafter, Esq.
KLAFTER LESSER LLP
Two International Drive, Suite 350
Rye Brook, NY 10573
Phone: (914) 934-9200
Email: jak@klafterlesser.com
The Defendant is represented by:
Alison Rae Ashmore, Esq.
DYKEMA GOSSETT PLLC
1717 Main Street, Suite 4200
Dallas, TX 75201
Phone: (214) 462-6400
Fax: (866) 781-2975
RYDER SYSTEM: Agrees to Settle Suit Over COBRA Notices for $390-M
-----------------------------------------------------------------
Top Class Actions reports that Ryder System agreed to pay $390,000
to resolve claims it violated federal law by failing to provide
sufficient COBRA notices.
The settlement benefits participants and beneficiaries of Ryder
System's health plan who were sent a COBRA notice by Ryder between
Feb. 24, 2018, and Feb. 24, 2022, as a result of a qualifying event
but did not elect continuation coverage. According to the
settlement, there are 23,200 potential class members included under
this definition.
According to the class action lawsuit, Ryder failed to adequately
inform the plaintiff and other plan participants of their rights
under the Consolidated Omnibus Reconciliation Act (COBRA). As a
result of insufficient notices, plan participants and beneficiaries
allegedly failed to elect continuation coverage as allowed under
federal law.
Ryder System offers many services to the transportation industry,
including fleet management solutions, transportation solutions,
supply chain solutions and more.
Ryder hasn't admitted any wrongdoing but agreed to a $390,000
settlement to resolve the COBRA class action lawsuit.
Under the terms of the settlement, class members can receive an
equal share of the net settlement fund. After deductions for
attorneys' fees and other costs, each class member is estimated to
receive between $7.50 and $10. Actual payments may be higher
depending on the number of class members who opt out of the
settlement.
The deadline for exclusion and objection is June 16, 2023.
The final approval hearing for the Ryder System settlement is
scheduled for June 16, 2023.
No claim form is required to benefit from the settlement. Class
members can update their address on the settlement website to
receive their payment to the correct location.
Who's Eligible
Participants and beneficiaries of Ryder System's health plan who
were sent a COBRA notice by Ryder between Feb. 24, 2018, and Feb.
24, 2022, as a result of a qualifying event but did not elect
continuation coverage
Potential Award
Between $7.50 and $10
Proof of Purchase
N / A
Exclusion Deadline
06/16/2023
Case Name
Thompson III, et al. v. Ryder System Inc., Case No. 1:22-cv-20552,
in the U.S. District Court for the Southern District of Florida
Final Hearing
06/16/2023
Settlement Website
ThompsonClassAction.com
Claims Administrator
Thompson v Ryder
c/o Settlement Administrator
P.O. Box 23668
Jacksonville, FL 32241-3668
800-564-5820
Class Counsel
Luis A Cabassa
Brandon J Hill
Amanda E Heystek
WENZEL FENTON CABASSA PA
Defense Counsel
Angelique Groza Lyons
CONSTANGY BROOKS SMITH & PROPHETE LLP [GN]
SA HOSPITALITY: Mera Sues Over Improper Overtime Payment
--------------------------------------------------------
DANILO MERA, on behalf of himself, FLSA Collective Plaintiffs, and
the Class, Plaintiff v. SA HOSPITALITY GROUP, LLC et al,
Defendants, Case No. 1:23-cv-03492-PGG (S.D.N.Y., April 23, 2023)
arises out of the Defendants' violations of the Fair Labor
Standards Act, the New York Labor Law, and the New York City Human
Rights Law Administrative Code of City.
In or about May 23, 2022, Plaintiff Danilo Mera was hired by
Defendants to work as a busser for Defendants' restaurant located
at 1166 1st Avenue, New York. The Plaintiff's employment ended in
or around February 2023. Allegedly, throughout Plaintiff Mera's
employment, the Defendants paid Plaintiff at the New York tip
credit minimum wage and an improper overtime rate due to an invalid
tip credit. In addition, the Plaintiff also suffered from
Defendants permitting kitchen workers ad Manager Marko to
constantly abuse and harass Plaintiff and foster a hostile work
environment based on his sexual orientation, the suit alleges.
The Defendants own and operate restaurants under the trademark
Felice throughout New York. These restaurants are operated as a
single integrated enterprise under the common control of the
Defendant SA Hospitality Group, LLC. [BN]
The Plaintiff is represented by:
C.K. Lee, Esq.
Anne Seelig, Esq.
LEE LITIGATION GROUP, PLLC
148 West 24th Street, 8th Floor
New York, NY 10011
Telephone: (212) 465-1188
Facsimile: (212) 465-1181
SAC PROFLOORS: Balux Och Files Suit in Cal. Super. Ct.
------------------------------------------------------
A class action lawsuit has been filed against SAC ProFloors, et al.
The case is styled as Manuel Balux Och, on behalf of himself, all
others similarly situated, and on behalf of the general public v.
SAC ProFloors, David Mara, Case No. 23CV031860 (Cal. Super. Ct.,
Alameda Cty., April 25, 2023).
The case type is stated as "Other Employment Complaint Case."
ProFloors -- https://www.profloorsus.com/ -- is a Premier
Multifamily flooring company made up by the best team in the
industry.[BN]
SAN DIEGO COUNTY, CA: Suit Seeks Provisional Class Status
---------------------------------------------------------
In the class action lawsuit captioned as DARRYL DUNSMORE, ANDREE
ANDRADE, ERNEST ARCHULETA, JAMES CLARK, ANTHONY EDWARDS, LISA
LANDERS, REANNA LEVY, JOSUE LOPEZ, CHRISTOPHER NELSON, CHRISTOPHER
NORWOOD, JESSE OLIVARES, GUSTAVO SEPULVEDA, MICHAEL TAYLOR, and
LAURA ZOERNER, on behalf of themselves and all others similarly
situated, v. SAN DIEGO COUNTY SHERIFF'S DEPARTMENT, COUNTY OF SAN
DIEGO, SAN DIEGO COUNTY PROBATION DEPARTMENT, and DOES 1 to 20,
inclusive, Case No. 3:20-cv-00406-AJB-DDL (S.D. Cal.), the
Plaintiffs ask the Court to enter an order granting a preliminary
injunction and for provisional class certification, under Federal
Rule of Civil Procedure Rules 23 and 65.
A copy of the Plaintiffs' motion dated April 25, 2023 is available
from PacerMonitor.com at https://bit.ly/3niS15K at no extra
charge.[CC]
The Plaintiffs are represented by:
Gay C. Grunfeld, Esq.
Van Swearingen, Esq.
Priyah Kaul, Esq.
Eric Monek Anderson, Esq.
Hannah M. Chartoff, Esq.
ROSEN BIEN GALVAN & GRUNFELD LLP
101 Mission Street, Sixth Floor
San Francisco, CA 94105-1738
Telephone: (415) 433-6830
Facsimile: (415) 433-7104
E-mail: ggrunfeld@rbgg.com
vswearingen@rbgg.com
pkaul@rbgg.com
eanderson@rbgg.com
hchartoff@rbgg.com
- and -
Aaron J. Fischer, Esq.
LAW OFFICE OF AARON J. FISCHER
1400 Shattuck Square Suite 12 - #344
Berkeley, CA 94709
Telephone: (510) 806-7366
Facsimile: (510) 694-6314
E-mail: ajf@aaronfischerlaw.com
- and -
Christopher M. Young, Esq.
Isabella Neal, Esq.
Oliver Kiefer, Esq.
DLA PIPER LLP (US)
4365 Executive Drive, Suite 1100
San Diego, CA 92121-2133
Telephone: (858) 677-1400
Facsimile: (858) 677-1401
E-mail: christopher.young@dlapiper.com
isabella.neal@dlapiper.com
oliver.kiefer@dlapiper.com
SAND INVESTMENTS: Roberts Sues Over Failure to Pay Compensation
---------------------------------------------------------------
Keith Roberts, individually and on behalf of all other Aggrieved
Employees v. SAND INVESTMENTS INC., a California Stock Corporation,
AMANPUR INVESTMENTS LLC, a California Limited Liability company,
and DOES I through 50, inclusive, Case No. 23STCV09212 (Cal. Super.
Ct., Los Angeles Cty., April 25, 2023), is brought pursuant to
California Labor Code and the Private Attorneys General Act as a
result of the Defendants failure to pay proper compensation.
The Defendants failed to provide employment records; failed to pay
overtime and double time; failed to provide rest and meal periods;
failed to pay minimum wage; failed to keep accurate payroll records
and provide itemized wage statements; failed to pay reporting time
wages in violation of California Code of Regulations; failed to pay
split shift wages in violation of California Code of Regulations;
failed to pay all wages earned on time; failed to pay all wages
earned upon discharge or resignation; failed to reimburse
necessary, business-related expenses; failed to provide notice of
paid sick time and accrual, all in violation of Labor Code and the
applicable Wage Orders, says the complaint.
The Plaintiff was hired by the Defendants with the job title of
Night Auditor and Guest Services Representative on June 2022.
The Defendants are multinational motel chain with locations serving
Southern California.[BN]
The Plaintiff is represented by:
Haig B. Kazandjian, Esq.
Diana Zadykyan, Esq.
HAIG B. KAZANDJIAN LAWYERS, APC
801 North Brand Boulevard, Suite 970
Glendale, CA 91203
Phone: 1-818-696-2306
Facsimile: 1-818-696-2307
Email: haig@hbklawyers.com
diana@hbklawyers.com
SANSI LED LIGHTING: Bassaw Files ADA Suit in S.D. New York
----------------------------------------------------------
A class action lawsuit has been filed against Sansi LED Lighting,
Inc. The case is styled as Shivan Bassaw, individually, and on
behalf of all others similarly situated v. Sansi LED Lighting,
Inc., Case No. 1:23-cv-03482 (S.D.N.Y., April 26, 2023).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Sansi -- https://www.sansiled.com/ -- is one of the leading global
LED Lighting and LED Display manufacturer and solution
provider.[BN]
The Plaintiff is represented by:
Edward Y. Kroub, Esq.
MIZRAHI KROUB LLP
225 Broadway, Ste. 39th Floor
New York, NY 10007
Phone: (212) 595-6200
Email: ekroub@mizrahikroub.com
SHIRLEY RAE SHARMA: Santiago Files Suit in Cal. Super. Ct.
----------------------------------------------------------
A class action lawsuit has been filed against Shirley Rae Sharma,
et al. The case is styled as Cecilia Santiago, on behalf of herself
and all others similarly situated v. Shirley Rae Sharma, an
individual and d/b/a Stockton Civic Inn, Chandra B. Pande, Case No.
STK-CV-UCR-2023-0004208 (Cal. Super. Ct., San Joaquin Cty., April
26, 2023).
The case type is stated as "Unlimited Civil - Civil Rights."
Shirley Rae Sharma doing business as Stockton Civic Inn is a
business-friendly hotel in Stockton.[BN]
SOUTHWEST AIRLINES: Smith Suit Transferred to S.D. California
-------------------------------------------------------------
The case styled as Mary Smith, individually and on behalf of all
others similarly situated, Petitioner v. Southwest Airlines Co.,
Respondent, Case No. 3:23-cv-00313-CRB was removed from the U.S.
District Court for the Northern District of California, to the U.S.
District Court for the Southern District of California on April 25,
2023.
The District Court Clerk assigned Case No. 3:23-cv-00754-L-JLB to
the proceeding.
The nature of suit is stated as Other Contract for Breach of
Contract.
Southwest Airlines Co. -- http://www.southwest.com/-- typically
referred to as Southwest, is an airline based in the United States
and the world's largest low-cost carrier.[BN]
The Plaintiff is represented by:
Francis J. Flynn, Jr., Esq.
LAW OFFICE OF FRANCIS J. FLYNN, JR.
422 South Curson Avenue
Los Angeles, CA 90036
Phone: (314) 662-2836
Email: francisflynn@gmail.com
The Defendants are represented by:
Matthew D. Pearson, Esq.
BAKER & HOSTETLER LLP
600 Anton Blvd., Ste. 900
Costa Mesa, CA 92626
Phone: (714) 754-6600
Fax: (714) 754-6611
Email: mpearson@bakerlaw.com
ST. CROIX OF PARK FALLS: Tucker Files ADA Suit in S.D. New York
---------------------------------------------------------------
A class action lawsuit has been filed against St. Croix of Park
Falls, Ltd. The case is styled as Henry Tucker, on behalf of
himself and all other persons similarly situated v. St. Croix of
Park Falls, Ltd., Case No. 1:23-cv-03413 (S.D.N.Y., April 24,
2023).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
St. Croix of Park Falls, Ltd. -- https://stcroixrods.com/ -- offers
premium quality casting, spinning, saltwater, ice fishing, and fly
rods made in the USA with care and dedication and backed by our
famous customer service.[BN]
The Plaintiff is represented by:
Bradly G. Marks, Esq.
THE MARKS LAW FIRM, PC
155 East 55th St., Ste. 6a
New York, NY 10022
Phone: (646) 770-3775
Fax: (646) 867-2639
Email: brad@markslawpc.com
STAKE CENTER LOCATING: Wolfe Sues to Recover Unpaid Overtime Wages
------------------------------------------------------------------
Austin Wolfe, individually and on behalf of all class members v.
STAKE CENTER LOCATING, LLC, Case No. 230402591 (Pa. Ct. of Common
Pleas, Philadelphia Cty., April 25, 2023), is brought to recover
unpaid overtime wages and other damages from the Defendant for
himself and all others similarly situated Utility Locators under
the Pennsylvania Minimum Wage Act (PMWA), and the and the
Pennsylvania Wage Payment and Collection Law (PWPCL).
The Defendant's pay scheme results in Utility Locators working off
the clock, without the required pay. Thus, the Defendant does not
pay for all hours worked by its Utility Locators as required by the
PMWA and PWPCL. The Defendant employed Utility Locators like the
Plaintiff to provide utility locating services throughout
Pennsylvania, including Philadelphia. The Defendant closely
monitored the work of the Utility Locators to balance productivity
versus cost. Through its uniform policies, procedures, and
corporate culture, the Defendant requires its Utility Locators to
work significant time off the clock, without pay.
Further, the Defendant paid its Utility Locators an allowance for
"auto pay," which it uniformly failed to include in their regular
rate of pay for purposes of calculating the proper overtime rate in
violation of the PMWA and PWPCL. The Defendant's policies apply
uniformly to all Utility Locators, including the Plaintiff. The
Plaintiff brings this class action to recover unpaid straight time
wages, overtime wages, liquidated damages, attorneys' fees, and
costs, and other damages, says the complaint.
The Plaintiff was a Utility Locator of SCL from February 15, 2018
until January 23, 2023.
Stake Center Locating, Inc. is a utility locating firm.[BN]
The Plaintiff is represented by:
Larry A. Weisberg, Esq.
WEISBERG CUMMINGS, P.C.
2704 Commerce Drive, Suite B
Harrisburg, PA 17110
Phone: (717) 238-5707
Facsimile: (717) 233-8133
Email: lweisberg@weisbergcummings.com
- and -
Michael A. Josephson, Esq.
JOSEPHSON DUNLAP LLP
11 Greenway Plaza, Ste. 3050
Houston, Texas 77046
Phone: (713) 352-1100
Facsimile: (713) 352-3300
Email: mjosephson@mybackwages.com
STALLION EXPRESS: Pires Seeks Couriers' Unpaid Minimum, OT Wages
----------------------------------------------------------------
ADRIANO PIRES, individually and on behalf of all others similarly
situated v. STALLION EXPRESS, LLC, Case No. 1:23-cv-10943 (D.
Mass., Apr. 30, 2023) is a collective action on behalf of all
individuals who performed courier services in the United States for
the Defendant for violations of the Fair Labor Standards Act, the
Massachusetts Independent Contractor Statute, the Massachusetts
Minimum Wage Act, the Massachusetts Overtime Law, and the
Massachusetts Wage Act based on the Defendant's failure to pay
minimum wage and overtime compensation..
According to the complaint, all Couriers are paid a certain amount
per mile for transportation-related expenses plus an additional
amount per delivery. The Couriers are also subject to the same
deductions that Stallion Express deducts from their compensation,
including a tech fee, motor carrier authority fee, and IC program
fee. When factoring out the compensation that Couriers receive
based on their mileage driven, which is to compensate Couriers for
their transportation-related costs, all Couriers, including the
Plaintiff are paid substantially below the minimum wage for the
hours that they work. Stallion Express Couriers, including the
Plaintiff do not receive overtime compensation for the hours they
work over 40 in a workweek, the suit alleges.
The Plaintiff seeks to recover for himself, the Collective Class
and the Massachusetts Class, all damages sustained as a result of
the Defendant's misclassification of couriers as independent
contractors, including treble and/or liquidated damages, interest,
attorneys' fees and costs.
The Plaintiff worked for the Defendant as a courier, transporting
medicine from pharmacies to nursing facilities throughout
Massachusetts.
Stallion Express provides pharmaceutical courier services.[BN]
The Plaintiff is represented by:
Adam J. Shafran, Esq.
RUDOLPH FRIEDMANN LLP
92 State Street
Boston, MA 02109
Telephone: (617) 723-7700
Facsimile: (617) 227-0313
STIX GOLF: Espinal Files ADA Suit in S.D. New York
--------------------------------------------------
A class action lawsuit has been filed against Stix Golf Co. The
case is styled as Frangie Espinal, on behalf of herself and all
other persons similarly situated v. Stix Golf Co., Case No.
1:23-cv-03510 (S.D.N.Y., April 26, 2023).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Stix Golf -- https://stix.golf/ -- provides headcovers, bamboo golf
tees, golf balls, eco-hybrid golf glove, magnetic golf towel, stand
bag, clubs, and accessories.[BN]
The Plaintiff is represented by:
Dana Lauren Gottlieb, Esq.
GOTTLIEB & ASSOCIATES
150 E. 18 St., Suite PHR
New York, NY 10003
Phone: (917) 796-7437
Fax: (212) 982-6284
Email: danalgottlieb@aol.com
STONE ACADEMY: Faces Class Suit Over Abrupt School Closure
----------------------------------------------------------
Jayne Chacko of News 8 WTNH.com reports that eight former Stone
Academy students plan to file a lawsuit against the school and its
owners after it shut down abruptly this year.
Stone Academy closed its three campuses in February, leaving 850
students without transcripts or answers.
Eight students are listed as plaintiffs in the lawsuit, but the law
firm told News 8 it expects around 1,000 students to sign on.
They're seeking damages, saying the school failed to provide the
promised education and training they paid for. The lawsuit says the
eight students paid anywhere from $7,500 - $40,000 each to Stone
Academy.
State offers free course for Stone Academy nursing graduates, warns
of investigation for those who don't take it
"We are going to fight hard for what we are owed. We were robbed
and we are going to get back what we are owed," said Terencia
Ridenhour, a plaintiff and former Stone Academy student. "I don't
want an apology. I want what I am owed."
The lawsuit states that Stone Academy passed itself off as "a
reputable, viable and well-established nursing school" but was
cited for several violations, including having an exam passing rate
lower than the state’s requirement. The complaint claims teachers
expressed concern that the program was in trouble.
One teacher said, "the majority of her students 'did not know how
to take blood pressure, turn the diaphragm on a stethoscope or feel
a pulse."
Stone Academy was also cited for offering clinical programs not
approved by the state.
The lawsuit claims, "without adequate clinical preparation, recent
Stone Academy graduates may not be prepared to care successfully
for patients."
The suit also states Mark Scheinberg, who owned Stone Academy until
last year, was forced to pay $1 million as part of a settlement
with the U.S. Department of Justice after Scheinberg allegedly
failed to conceal a high rate of student loan defaults. The
settlement also required Scheinberg to divest himself of ownership
and control of Stone Academy.
The complaint states that Scheinberg then appointed his stepson,
Joseph Bierbaum, as Stone Academy's President and CEO. He was in
that position from March 2013 to March 2022. Bierbaum is also named
as a defendant in the case. Scheinberg's brother, Richard
Scheinberg, is also a defendant. Richard Scheinberg is a trustee
for Creative Career Trust, a family trust Mark Scheinberg funded
with his interest from Stone Academy, according to the lawsuit.
Gary Evans, the current CEO of the school, is also a defendant.
Scheinberg is currently the founder and president of Goodwin
University in East Hartford.
The class action lawsuit includes any student who was enrolled
between 2018 to February 14, 2023 or graduated between November 1,
2021, to February 2023.
The Connecticut Office of Higher Education is still auditing
transcripts to see what credits count and if they can apply for
loan discharges and tuition refunds.
Perry Rowthorn, a lawyer representing Stone Academy sent News 8 a
statement:
"The lawsuit ignores the fact that the Connecticut Office of Higher
Education (OHE) and Department of Public Health forced Stone to
close on short notice without legal justification and without
following required processes to address exam passage rates or other
concerns.
OHE refused to allow a teach out program for Stone students that
would have avoided the disruptions alleged in the lawsuit. OHE is
now conducting an illegal audit to deprive students of their
legitimately earned credits. We expect plaintiffs' lawyers to join
us in demanding that OHE cease its audit and permit a teach out -
as has been done in previous school closures. We are reviewing
options to ensure that the State and state officials assume legal
responsibility for the harms they caused to Stone students that are
improperly alleged against the school.
Stone Academy will remain focused on assisting its students and
graduates in pursuing their nursing educations and licensure. We
will respond to the lawsuit more fully in court at the appropriate
time but categorically reject its characterization of the quality
of Stone students' education and the circumstances of the school's
closure."
The lawsuit will proceed in Connecticut Superior Court in
Waterbury. [GN]
STREAMLABS LLC: Class Certification Hearing Set for Dec. 15
-----------------------------------------------------------
In the class action lawsuit captioned as ZARA LEVENTHAL, v.
STREAMLABS LLC, Case No. 3:22-cv-01330-LB (N.D. Cal.), the Hon.
Judge Laurel Beeler entered a case-management and pretrial order as
follows:
-- Updated joint case-management-conference June 22, 2023
Statement:
-- Further case-management conference: June 29, 2023
-- Non-expert discovery completion date: Dec. 1, 2023
-- Class Certification Hearing: Dec. 15, 2023
-- Opposition to Class Certification: Dec. 16, 2024
-- Reply to Class Certification: March 22, 2024
-- Hearing date and/or further April 18, 2024
case-management conference:
-- Expert disclosures required by April 1, 2024
Federal Rules of Civil Procedure:
-- Rebuttal expert disclosures: May 15, 2024
-- Expert discovery completion date: May 31, 2024
-- Last hearing date for dispositive Oct. 31, 2024
motions and/or further
case-management conference:
-- Meet and confer re pretrial Nov. 5, 2024
Filings:
-- Pretrial filings due: Nov. 14, 2024
-- Oppositions, objections, exhibits, Nov. 21, 2024
and depo designations due:
-- Final pretrial conference: Dec. 5, 2024
Streamlabs offers live streaming software that enables video
streamers to broadcast their live stream on platforms such as
YouTube and Twitch.
A copy of the Court's order dated April 25, 2023 is available from
PacerMonitor.com at https://bit.ly/427qtz6 at no extra charge.[CC]
SUJA LIFE LLC: Rodriguez Files ADA Suit in S.D. New York
--------------------------------------------------------
A class action lawsuit has been filed against Suja Life, LLC. The
case is styled as Omar Rodriguez, individually, and on behalf of
all others similarly situated v. Suja Life, LLC, Case No.
1:23-cv-03441 (S.D.N.Y., April 25, 2023).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Suja Juice -- https://www.sujaorganic.com/ -- is an organic,
non-GMO, cold-pressed juice company based in San Diego,
California.[BN]
The Plaintiff is represented by:
Edward Y. Kroub, Esq.
MIZRAHI KROUB LLP
225 Broadway, Ste. 39th Floor
New York, NY 10007
Phone: (212) 595-6200
Email: ekroub@mizrahikroub.com
SUPERIOR AIR-GROUND: Estrada Seeks Proper Wages for Paramedics
--------------------------------------------------------------
SAMANTHA ESTRADA, on behalf of herself and all others similarly
situated, Plaintiff v. SUPERIOR AIR-GROUND AMBULANCE SERVICE, INC.,
Defendant, Case No. 2:23-cv-00528-SCD (E.D. Wis., April 26, 2023)
arises out of the Defendant's violations of the Fair Labor
Standards Act of 1938 and the Wisconsin's Wage Payment and
Collection Laws.
In approximately early April 2022, the Defendant hired Plaintiff as
an hourly-paid, non-exempt paramedic employee and was primarily
assigned at the Defendant's Menomonee Falls, Wisconsin location.
However, the Defendant allegedly implemented an unlawful
compensation system that deprived and failed to compensate
Plaintiff and all other current and former hourly-paid, non-exempt
employees for all hours worked and work performed each workweek,
including at an overtime rate of pay for each hour worked in excess
of 40 hours in a workweek, by failing to include all forms of
non-discretionary compensation, such as monetary bonuses,
incentives, awards, and/or other rewards and payments, in said
employees' regular rates of pay for overtime calculation purposes,
in violation of the FLSA and WWPCL, says the suit.
Superior Air-Ground Ambulance Service, Inc., is an Elmhurst,
Illinois-based ambulance company doing business in the State of
Wisconsin with a principal office address of 395 West Lake Street,
Elmhurst, Illinois. [BN]
The Plaintiff is represented by:
James A. Walcheske, Esq.
Scott S. Luzi, Esq.
David M. Potteiger, Esq.
WALCHESKE & LUZI, LLC
235 N. Executive Drive, Suite 240
Brookfield, W 53005
Telephone: (262) 780-1953
Facsimile: (262) 565-6469
E-mail: jwalcheske@walcheskeluzi.com
sluzi@walcheskeluzi.com
dpotteiger@walcheskeluzi.com
SWIFTFUNDS FINANCIAL: Hastings Files FDCPA Suit in E.D. Texas
-------------------------------------------------------------
A class action lawsuit has been filed against Swiftfunds Financial
Services LLC. The case is styled as John Hastings, individually and
on behalf of all others similarly situated v. Swiftfunds Financial
Services LLC, Case No. 4:23-cv-00369 (E.D. Tex., April 26, 2023).
The lawsuit is brought over alleged violation of the Fair Debt
Collection Practices Act.
Swiftfunds Financial Services LLC is a debt collection agency
located in Palos Verdes Peninsula, California.[BN]
The Plaintiff is represented by:
Yaakov Saks, Esq.
STEIN SAKS, PLLC
One University Plaza, Suite 620
Hackensack, NJ 07601
Phone: (201) 282-6500
Fax: (201) 282-6501
Email: ysaks@steinsakslegal.com
SYNERGY SPA: Spain Files Suit in E.D. North Carolina
----------------------------------------------------
A class action lawsuit has been filed against Synergy Spa, Inc. The
case is styled as Malinda Spain, individually and on behalf of all
others similarly situated v. Synergy Spa, Inc., Case No.
5:23-cv-00225-FL (E.D.N.C., April 26, 2023).
The nature suit is stated as Other P.I. for Personal Injury.
Synergy Spa -- https://feelsynergy.com/ -- is providing spa, med
spa, laser center and plastic surgery facility specializing in both
pampering and corrective treatments.[BN]
The Plaintiff is represented by:
Scott C. Harris, Esq.
MILBERG COLEMAN BRYSON PHILLIPS GROSSMAN, PLLC
900 W. Morgan Street
Raleigh, NC 27603
Phone: (919) 600-5000
Fax: (919) 600-5035
Email: sharris@milberg.com
TESLA INC: Nana-anyangwe Sues Over EV Market Monopolization
-----------------------------------------------------------
PHILOMENA FOCHWANG NANA-ANYANGWE, individually and on behalf of all
others similarly situated, Plaintiff v. TESLA, INC., Defendant,
Case No. 3:23-cv-02035-DMR (N.D. Cal., April 26, 2023) arises out
of the Defendant's alleged violations of the Sherman Act and the
Magnuson-Moss Warranty Act.
This antitrust class action seeks relief for all persons who, like
Plaintiff, have been forced to pay supra-competitive prices and
suffer exorbitant wait times to maintain and repair their Tesla
vehicles as a result of Tesla's monopolization, attempted
monopolization, exclusionary conduct, and restraint of the markets
for compatible replacement parts and maintenance and repair
services for Tesla vehicles. Among other things, as a result of
this anticompetitive Tesla has prevented independent providers from
entering the Tesla repair services market, prevented its OEM parts
manufacturers from producing Tesla-compatible parts for anyone
other than Tesla, and prevented market entry by non-OEM,
Tesla-compatible parts manufacturers, says the suit.
Tesla is a multinational automotive and clean energy company
founded in Palo Alto, California in 2003. By 2014, Tesla had become
the largest automotive employer in the State of California. In
December 2021, Tesla moved its headquarters to Austin, Texas.[BN]
The Plaintiff is represented by:
Jon A. Tostrud, Esq.
TOSTRUD LAW GROUP, P.C.
1925 Century Park East Suite 2100
Los Angeles, CA 90067
Telephone: (310) 278-2600
Facsimile: (310) 278-2640
E-mail: jtostrud@tostrudlaw.com
- and -
Brian P. Murray, Esq.
Lee Albert, Esq.
GLANCY PRONGAY & MURRAY LLP
230 Park Avenue, Suite 358
New York, NY 10169
Telephone: (212) 682-5340
Facsimile: (212) 884-0988
E-mail: bmurray@glancylaw.com
lalbert@glancylaw.com
- and -
Blaine Finley, Esq.
CUNEO GILBERT & LADUCA, LLP
4725 Wisconsin Ave. NW Suite 200
Washington, DC 20016
Telephone: (202) 789-3960
Facsimile: (202) 589-1813
E-mail: bfinley@cuneolaw.com
TEXAS HEALTH: Files Appeal in Strong Class Suit
-----------------------------------------------
Texas Health Resources and Texas Health Presbyterian Hospital Plano
filed an appeal from a court ruling entered in the lawsuit styled
William Strong, on behalf of himself and all others similarly
situated v. Texas Health Resources, Texas Health Presbyterian
Hospital Plano, Case No. 366-03202-2020, (Tex. Dist., Collin Cty.,
July 2, 2020).
The case type is stated as "All Other Civil Cases."
The appellate case is captioned as Texas Health Resources and Texas
Health Presbyterian Hospital Plano v. William Strong, on behalf of
himself and all others similarly situated, Case No. 02-23-00134-CV,
in the Texas Court of Appeals, Second Court of Appeals, filed on
April 26, 2023.
The briefing schedule in the Appellate Case states that:
-- Transcript record was due last May 5, 2023; and
-- Docketing statement was due May 8, 2023.[BN]
Defendants-Appellants Texas Health Resources and Texas Health
Presbyterian Hospital Plano are represented by:
Grant D. Blaies, Esq.
Greg S. Gober, Esq.
BLAIES & HIGHTOWER, LLP
420 Throckmorton St #1200
Fort Worth, TX 76102
Telephone: (817) 334-0800
Plaintiff-Appellee William Strong, on behalf of himself and
all others similarly situated, is represented by:
Daniel E. Blumberg, Esq.
Peter F. Bagley, Esq.
BLUMBERG BAGLEY PLLC
2304 West Interstate 20, Suite 190
Arlington, TX 76017
Telephone: (817) 277-1500
Facsimile: (817) 277-1170
TIKTOK INC: Greco Suit Over Public Nuisance Dismissed W/o Prejudice
-------------------------------------------------------------------
In the case, LEAH GRECO, individually and on behalf of all others
similarly situated, Plaintiff v. TIKTOK, INC., Defendant, Case No.
5:22-cv-00916 (BKS/ML) (N.D.N.Y.), Judge Brenda K. Sannes of the
U.S. District Court for the Northern District of New York grants
the Defendant's motion to dismiss.
Greco brings the putative class action on behalf of school
districts in New York, Pennsylvania, Idaho, New Mexico, Utah, North
Carolina, and Connecticut against Defendant TikTok. She brings a
public nuisance claim against the Defendant, alleging that TikTok
challenges have caused disruption and harm in schools, which has
unreasonably interfered with the rights of School Districts to
provide an environment conducive to education, and has forced
school districts to devote and divert resources to remedy
destruction of property and violence.
The complaint invokes federal jurisdiction under the Class Action
Fairness Act of 2005, 28 U.S.C. Section 1332(d)(2), asserts a
public nuisance claim, and seeks restitution, a judgment directing
the Defendant to cease contributing to, and immediately abate the
nuisance it has created and maintained within the proposed School
Districts, as well as monetary damages.
TikTok is a California corporation headquartered in Culver City,
California, which provides a social media video-sharing platform
targeted to youth. The Plaintiff, a citizen of Solvay, New York, is
a taxpayer in her local school district and a parent to a student
in said school district.
According to the Plaintiff, TikTok's appeal to youth is centered on
'challenges' which are based on performing, recording, and sharing
various acts. These challenges are promoted to school-aged children
through TikTok's proprietary algorithm, based on age, likes, and
prior activity. The school-related challenges are based on
destruction and theft of property and violence towards others.
The Plaintiff seeks certification under Rule 23 of the Federal
Rules of Civil Procedure for the following two classes:
i. New York Class: Incorporated and unincorporated School
Districts in New York including those organized pursuant to N.Y.
E.D.N. Section 1501 et seq., which have incurred costs and fees as
a result of the conduct described herein during the statutes of
limitations for each cause of action alleged; and
ii. School District Multi-State Class: Incorporated and
unincorporated School Districts in Pennsylvania, Idaho, New Mexico,
Utah, North Carolina, and Connecticut, which have incurred costs
and fees as a result of the conduct described herein during the
statutes of limitations for each cause of action alleged.
Presently before the Court is TikTok's motion to dismiss the
complaint under Federal Rules of Civil Procedure 12(b)(1) for lack
of subject matter jurisdiction, 12(b)(2) for lack of personal
jurisdiction, and 12(b)(6) for failure to state a claim, and to
strike the class allegations from the complaint under Rule 12(f).
The parties have filed responsive briefing.
The Defendant argues that the Complaint should be dismissed for
lack of jurisdiction under Rule 12(b)(1) because the Plaintiff
fails to allege a concrete and particularized injury sufficient to
confer standing. The Plaintiff contends that she has suffered a
concrete injury as a taxpayer in Syracuse school district which has
or will incur costs as a result of the Defendant's actions. She
also asserts standing on behalf of her third-party school district,
contending that her 'injury-in-fact' is established by her role as
a parent of a child attending school in her school district, which
has seen increased disruption and harm due to the proliferation of
TikTok challenges.
Judge Sannes holds that the Plaintiff fails to show standing as a
municipal taxpayer. She explains that municipal taxpayers have
standing to enjoin illegal use of moneys of a municipal
corporation. The Second Circuit has recognized that under
Frothingham, it presumes a municipal taxpayer's relationship to the
municipality is 'direct and immediate' such that the taxpayer
suffers concrete injury whenever the challenged activity involves a
measurable appropriation or loss of revenue, citing Altman v.
Bedford Cent. Sch. Dist., 245 F.3d 49, 73 (2d Cir. 2001). Municipal
standing, however, is not applicable in an action against a private
corporation.
Judge Sannes further holds that the Plaintiff fails to establish
standing. She says the Plaintiff has failed to allege that she
suffered an injury in fact, the Plaintiff does not clearly identify
the school district with which she has a relationship through her
minor child or taxpayer status, and there are no facts that suggest
that there is any hindrance to any third-party school district's
ability to protect its own interests.
Accordingly, as Plaintiff fails to establish standing, Judge Sannes
grants the Defendants' motion to dismiss. Although she is skeptical
about whether there is any viable basis to amend, because it may be
possible for the Plaintiff to establish subject matter jurisdiction
with better pleading, Judge Sannes grants the Plaintiff's request
to amend. The Plaintiff is granted leave to file an amended
complaint within 30 days of the date of the Order. Hence, the
Complaint is without prejudice under Fed. R. Civ. P. 12(b)(1) for
lack of subject matter jurisdiction, with leave to file an amended
complaint.
A full-text copy of the Court's April 26, 2023 Memorandum-Decision
& Order is available at https://rb.gy/6j8q8 from Leagle.com.
Spencer Sheehan -- spencer@spencersheehan.com -- Katherine Lalor,
Sheehan & Associates, P.C., Great Neck, NY, for the Plaintiff.
Hannah Y.S. Chanoine -- hchanoine@omm.com -- O'Melveny & Myers LLP,
New York, NY.
Jonathan Schneller -- hchanoine@omm.com -- O'Melveny & Myers LLP,
Los Angeles, CA, for the Defendant.
TMX FINANCE: DeJesus Sues Over Failure to Safeguard PII
-------------------------------------------------------
Antonio DeJesus and Tracy E. Starling, on behalf of themselves and
all others similarly situated v. TMX FINANCE CORPORATE SERVICES,
INC., Case No. 4:23-cv-00113-RSB-CLR (S.D. Ga., April 26, 2023), is
brought against Defendant for its failure to properly secure and
safeguard personal identifiable information ("PII") of more than
4.8 million individuals, including, but not limited to, name, date
of birth, passport number, driver's license number, federal/state
identification card number, tax identification number, social
security number and/or financial account information, and other
information such as phone number, address, and email address.
Prior to February 3, 2023, Defendant obtained the PII of Plaintiffs
and Class Members, including by collecting it directly from
Plaintiffs and Class Members. The Defendant stored the PII of
Plaintiffs and Class Members, unencrypted, in an
Internet-accessible environment on Defendant's network. On February
3, 2023, Defendant learned of a data breach on its network that
occurred on or around February 3, 2023 to February 14, 2023 (the
"Data Breach"). The Defendant determined that, during the Data
Breach, an unknown actor accessed and/or acquired the PII of
Plaintiffs and Class Members. On March 30, 2023, Defendant began
notifying various states Attorneys General of the Data Breach. On
March 30, 2023, Defendant began notifying Plaintiffs and Class
Members of the Data Breach.
By obtaining, collecting, using, and deriving a benefit from the
PII of the Plaintiffs and Class Members, Defendant assumed legal
and equitable duties to those individuals to protect and safeguard
that information from unauthorized access and intrusion. The
Defendant admits that the unencrypted PII that was accessed and/or
acquired by an unauthorized actor included name, date of birth,
passport number, driver's license number, federal/state
identification card number, tax identification number, social
security number and/or financial account information, and other
information such as phone number, address, and email address.
The PII was compromised due to Defendant's negligent and/or
careless acts and omissions and the failure to protect the PII of
Plaintiffs and Class Members. In addition to Defendant's failure to
prevent the Data Breach, Defendant waited more than three months
after the Data Breach occurred to report it to the states Attorneys
General and affected individuals. Defendant has also purposefully
maintained secret the specific vulnerabilities and root causes of
the breach and has not informed Plaintiffs and Class Members of
that information.
As a result of this delayed response, Plaintiffs and Class Members
had no idea their PII had been compromised, and that they were, and
continue to be, at significant risk of identity theft and various
other forms of personal, social, and financial harm, including the
sharing and detrimental use of their sensitive information. The
risk will remain for their respective lifetimes, says the
complaint.
The Plaintiffs received letters notifying them of the breach.
The Defendant provides consumer credit products under the TitleMax,
TitleBucks, and InstaLoan brands.[BN]
The Plaintiff is represented by:
Paul W. Painter, III, Esq.
BOWEN PAINTER, LLC
308 Commercial Drive, Suite 100
Savannah, GA 31406
Phone: 912-335-1909
Facsimile: 912-335-3537
Email: paul@bowenpainter.com
- and -
Marc H. Edelson, Esq.
EDELSON LECHTZIN LLP
411 S. State Street, Suite N-300
Newtown, PA 18940
Phone: (215) 867-2399
Email: medelson@edelson-law.com
- and -
David A. Goodwin, Esq.
Daniel C. Hedlund, Esq.
Joseph E. Nelson, Esq.
GUSTAFSON GLUEK PLLC
Canadian Pacific Plaza
120 South 6th Street, Suite 2600
Minneapolis, MN 55402
Phone: (612) 333-8844
Email: dgoodwin@gustafsongluek.com
dhedlund@gustafsongluek.com
jnelson@gustafsongluek.com
TOTAL MAINTENANCE: Fails to Pay Regular, OT Wages Under FLSA
------------------------------------------------------------
Luis Rosero, and other similarly situated individuals v. Total
Maintenance Building Services, Inc. And Edward Galbraith,
Individually, Case No. 9:23-cv-80717 (S.D. Fla., Apr. 29, 2023)
seeks to recover unpaid regular and overtime wages and retaliation,
pursuant to the Fair Labor Standards Act.
According to the complaint, while the Plaintiff was employed by the
Defendants, he worked a total of 48 hours weekly. The Plaintiff has
already deducted 3 hours corresponding to 30 minutes of lunchtime
daily for six days. He was paid for 40 regular hours, but he was
not compensated for overtime hours. The Defendants willfully failed
to pay Plaintiff overtime wages, at the rate of time and a half his
regular rate, for every hour that he worked in excess of 40, the
suit claims.
On the last week of February 2023, the Plaintiff did not receive
his wages for the current week. He complained, but he continued
working. The Plaintiff complained many times to his supervisor
Edward Galbraith. On March 31, 2023, the Plaintiff complained to
Edward Galbraith for the last time. As a consequence of this
complaint, the Defendants fired the Plaintiff the same day. At the
time of his termination, the Defendants refused to pay Plaintiff
his overdue wage, the suit asserts.
Plaintiff Luis Rosero was employed as a non-exempted, full-time
landscaper from January 1, 2019, to March 31, 2023, or 154 weeks.
Total Maintenance is a maintenance service company primarily
providing lawn and garden services to commercial and residential
clients.[BN]
The Plaintiff is represented by:
Zandro E. Palma, Esq.
ZANDRO E. PALMA, P.A.
9100 S. Dadeland Blvd., Suite 1500
Miami, FL 33156
Telephone: (305) 446-1500
Facsimile: (305) 446-1502
E-mail: zep@thepalmalawgroup.com
TRINET HR: Bid for Summary Judgment in Huang ERISA Suit Granted
---------------------------------------------------------------
In the case, SHIQIONG HUANG, CHRIS R. STOKOWSKI, EVERETT UHL, and
MARK J. HEARON, Plaintiffs v. TRINET HR III, INC., et al.,
Defendants, Case No. 8:20-cv-2293-VMC-TGW (M.D. Fla.), Judge
Virginia M. Hernandez Covington of the U.S. District Court for the
Middle District of Florida, Tampa Division, grants the following
motions filed by Defendants TriNet HR III, Inc., TriNet HR IV,
Inc., the Board of Directors of TriNet III, Inc., the Board of
Directors of TriNet IV, Inc., the Investment Committee of TriNet
Group, Inc., and John Does 1-30:
a. the Motion for Summary Judgment, filed on Nov. 18, 2022,
and
b. the Daubert Motion to exclude the testimony of the
Plaintiffs' expert, filed on Nov. 21, 2022.
The lawsuit is a class action brought under the Employee Retirement
Security Act of 1974 ("ERISA") by Plaintiffs Shiqiong Huang, Chris
R. Stokowski, Everett Uhl, and Mark J. Hearon, participants in the
TriNet Select 401(k) Plan. They allege that the authorities
responsible for overseeing the Plan breached their fiduciary duties
under ERISA in two respects: (1) by selecting high-cost,
underperforming investment options and (2) by causing the Plan
participants to pay excessive recordkeeping fees.
The Court previously certified the following class to pursue these
claims: All persons, except Defendants and their immediate family
members, who were participants in or beneficiaries of the TriNet IV
Plan, at any time between Sept. 29, 2014, through the date of
judgment.
TriNet provides human resources services to small and medium-sized
businesses and offers its client-employers the opportunity to
participate in one of two defined contribution 401(k) plans: the
TriNet 401(k) Plan ("TriNet III") and the Plan at issue. From Sept.
29, 2014, to the present ("Class Period"), the Retirement Committee
("RC") was delegated authority to administer the Plan, including
retaining a recordkeeper and selecting and monitoring the Plan's
investment options. The RC comprised between five and seven TriNet
employees with expertise in different subject areas, including in
finance, human resources, and law. Throughout the Class Period, the
Plan offered participants a broad range of investment strategies
with differing management styles and risk-return characteristics.
In 2015, NFP assisted the RC in conducting a Request for Proposal
("RFP") for the Plan's recordkeeping services. Three recordkeepers
(MassMutual, Transamerica, and Voya) responded to the 2015 RFP. The
RC chose MassMutual, which submitted the lowest price quote of the
three responding recordkeepers and negotiated a further price
reduction before retaining its services.
In 2021, DiMeo once again assisted the RC in issuing an RFP for the
Plan's recordkeeping services. DiMeo issued the 2021 RFP to four
recordkeepers: Empower (which had acquired MassMutual's
recordkeeping business), Transamerica, Voya, and Northwest Plan
Services. As a result of the 2021 RFP, the RC consolidated the
recordkeeping services for TriNet III and the Plan, securing
Empower as the vendor for both. The consolidation resulted in a fee
reduction for the Plan. In the intervals between the 2015 RFP, 2018
RFI, and 2021 RFP, DiMeo regularly reviewed the Plan's
recordkeeping arrangement and presented the RC with information
regarding the recordkeeping costs of other plans.
The Defendants offer the testimony of three experts: Steven Case,
Dr. Jennifer Conrad, and Peter Swisher. Mr. Case is a former
investment consultant, who opined that the RC's processes for
monitoring the Plan's investment options and recordkeeping expenses
were consistent with best fiduciary practices. Dr. Conrad, a
tenured professor of finance at the Kenan-Flagler Business School,
University of North Carolina at Chapel Hill, explained that (1)
fees of index funds are not meaningful benchmarks for actively
managed funds' fees, and (2) that it is appropriate to include
actively-managed options in retirement plans because research
indicates that active management produces superior results in
certain market conditions. Mr. Swisher, an expert in MEPs with
nearly ten years' experience administering and selecting
recordkeepers for a large MEP, opined that the RC followed best
practices in conducting competitive bidding through the 2015 RFP,
2018 RFI, and 2021 RFP.
The Plaintiffs offer the testimony of Frances Vitagliano as to the
reasonableness of the Plan's recordkeeping fees. Mr. Vitagliano has
35 years of experience in the record keeping and administration
business and the related asset management processing. Mr.
Vitagliano reached the following conclusions: (1) The Plan's
recordkeeping fees were unreasonable because they exceeded $30 per
participant (plus $3 to $6 in additional administrative fees),
which is the reasonable rate for both the TriNet III and TriNet IV
Plans; and (2) The RC and its consultants were imprudent and likely
negligent when they conducted the 2015 RFP for recordkeeping
services. He based his reasonable fee conclusion on his review of
the aforementioned documents. With respect to the 2015 RFP, he
concluded that it was imprudent because it did not include any
"independent" or "unbundled" recordkeepers.
The Plaintiffs initiated the action on Sept. 29, 2020 and filed an
amended complaint on Aug. 20, 2021. The Defendants filed their
answer to the amended complaint on Jan. 24, 2022.
Now, the Defendants seeks final summary judgment in their favor.
Additionally, they filed a Daubert motion to exclude the expert
report and testimony of Mr. Vitagliano. The Plaintiffs responded to
both Motions and the Defendants replied.
The Defendants seeks to exclude Mr. Vitagliano's expert testimony
on the grounds that it meets neither the qualification nor
reliability requirements of Rule 702.
Judge Covington holds that despite his experience in other areas
within this field, Mr. Vitagliano has never conducted an RFP, has
not responded to an RFP in nearly forty years, and acknowledged
that he would need to rely on a consultant to determine the best
way to conduct the process. Because Mr. Vitagliano's qualifications
do not fit with the topic of his opinion, his testimony with
respect to the 2015 RFP is barred. Mr. Vitagliano also has not
demonstrated that his methodology is reliable, and his testimony is
excluded. Therefore, the Defendants' Daubert Motion is granted.
In their amended complaint, the Plaintiffs base their claims for
breach of fiduciary duty on two theories: (1) that the Defendants
imprudently selected underperforming, high-cost investment options
and (2) that the Defendants caused the Plan participants to pay
excessive recordkeeping fees.
Judge Covington holds that the Plaintiffs have demonstrated that a
different type of retirement plan could have paid lower
recordkeeping fees for a different package of services. This
showing is insufficient to avoid summary judgment. Summary judgment
is therefore granted to Defendants on the Plaintiffs' recordkeeping
fee theories.
Judge Covington also grants summary judgment in favor of the
Defendants as to the Plaintiffs' investment option theories. She
finds that the Plaintiffs have not met their burden to avoid
summary judgment on their investment-related claims. There is also
substantial evidence that the Defendants prudently monitored the
Plan during the class period. Likely for this reason, the
Plaintiffs acknowledge they are not seeking damages related to
their investment claims.
Accordingly, Judge Covington grants the Defendants' Daubert Motion.
She excludes Mr. Vitagliano's testimony. She also grants the
Defendants' Motion for Summary Judgment.
The Clerk is directed to enter judgment in favor of the Defendants
and against the Plaintiffs. Thereafter, the Clerk is directed to
terminate all pending motions and deadlines and close the case.
A full-text copy of the Court's April 26, 2023 Order is available
at https://rb.gy/1fael from Leagle.com.
UBER TECHNOLOGIES: 3rd Cir. Affirms Arbitration Order in Singh Suit
-------------------------------------------------------------------
In the cases, JASWINDER SINGH, on behalf of himself and all those
similarly situated, Appellant v. UBER TECHNOLOGIES, INC., JAMES
CALABRESE; GREGORY CABANILLAS; MATTHEW MECHANIC, individually and
on behalf of all others similarly situated, Appellants v. UBER
TECHNOLOGIES, INC.; RAISER, LLC, Case Nos. 21-3234, 21-3363 (3d
Cir.), the U.S. Court of Appeals for the Third Circuit affirms the
District Court's judgment compelling arbitration.
The Federal Arbitration Act (FAA) compels federal courts to enforce
a wide range of arbitration agreements. But it does not apply to
arbitration agreements contained in the contracts of employment of
seamen, railroad employees, or any other class of workers engaged
in foreign or interstate commerce. These consolidated appeals ask
the Third Circuit to decide whether Uber drivers belong to such a
class of workers.
The consolidated appeal arises out of two cases filed against Uber
by its drivers -- Singh v. Uber Technologies and Calabrese v. Uber
Technologies. In each case, Uber successfully moved to compel
arbitration under the terms of its agreements with the drivers.
The Plaintiffs are current or former Uber drivers from many
different states -- New Jersey, New York, Ohio, Pennsylvania,
Missouri, and Nevada. At one time or another, each agreed to a
contract Uber calls its "Technology Services Agreement" as a
condition of using Uber's platform. The content of the relevant
provisions of the agreement is not in dispute.
The agreement requires drivers to resolve disputes with Uber on an
individual basis through final and binding arbitration unless the
driver chooses to opt out. This includes every claim or dispute
that lawfully can be arbitrated, save a few specific exceptions.
Under the agreement, an arbitrator -- not "a court or judge" -- is
to decide any dispute "relating to interpretation or application"
of the provision, including its enforceability, revocability, or
validity. Drivers who do not wish to be bound by the arbitration
provisions may opt out by sending Uber an email or letter to that
effect.
Singh's case began six years ago as a putative class action in New
Jersey state court. Singh alleged Uber had violated New Jersey wage
and hour laws by misclassifying drivers as independent contractors,
had failed to pay them the minimum wage, and had failed to
reimburse them for business expenses.
Uber removed the action and then successfully moved to dismiss the
case and compel arbitration pursuant to the terms of its
arbitration agreement with Singh. The District Court held that
Section 1 applied only to transportation workers who move goods,
not those who carry passengers. Singh appealed to the Third Circuit
and it reversed, holding that the exception applies equally to
"transportation workers who transport passengers, so long as they
are engaged in interstate commerce or in work so closely related
thereto as to be in practical effect part of it. The Third Circuit
reaffirmed its longstanding view of the residual clause as
including those classes of workers actually engaged in the movement
of interstate or foreign commerce or in work so closely related
thereto as to be in practical effect part of it.
The Third Circuit remanded to the District Court to determine
whether Singh belonged to a class of transportation workers engaged
in interstate commerce. Because this question could not be answered
from the complaint alone, it directed that discovery must be
allowed before entertaining further briefing on the question. The
Third Circuit encouraged the District Court to consider "various
factors," including but not limited to the contents of the parties'
agreement(s), information regarding the industry in which the class
of workers is engaged, information regarding the work performed by
those workers, and various texts -- i.e., other laws, dictionaries,
and documents—that discuss the parties and the work.
Calabrese filed his case in the District of New Jersey in September
2019, just a few weeks after our decision in Singh. The District
Court consolidated the case with Singh's and ordered joint
discovery. Like Singh, Calabrese claimed that Uber had violated
various labor and employment laws. He also sought to proceed
collectively under the Fair Labor Standards Act.
The District Court ordered that joint discovery before again ruling
in Uber's favor and compelling arbitration. It defined the relevant
class as Uber drivers nationwide. Based on the record developed in
discovery and the factors listed above, the court determined that
neither the arbitration agreement nor the total number of
cross-border trips was dispositive. More significant, the court
found, was evidence that interstate rides constitute just 2% of all
rides, resemble in character the other 98% of rides, and likely
occur due to the happenstance of geography.
The District Court compelled arbitration.
To decide whether the Plaintiffs are members of a "class of workers
engaged in foreign or interstate commerce," a court must first
define the "class of workers" at issue. The Third Circuit agrees
with the District Court that the class should be defined as
nationwide Uber drivers. In addition, the class of workers must
include all Uber drivers.
After defining the proper scope of the class at issue, the Third
Circuit next considers what it means for a class of workers to be
"engaged in interstate commerce" for purposes of Section 1. It
opines that the FAA's text makes it explicit -- the residual clause
requires that a class of workers is "engaged in interstate
commerce." his text is the best evidence of Congress' intent.
The Third Circuit turns to the key question: Is engagement with
interstate commerce central to the work of Uber drivers? The
District Court found that it was not. The Third Circuit agrees. It
concludes that Uber drivers are not a class of workers engaged in
interstate commerce and, accordingly, that they do not fall under
the Section 1 exception.
Finally, the Plaintiffs also object to the District Court's
decision to compel arbitration on various contractual grounds. The
Third Circuit rejects these arguments. It discerns no error in this
finding, and no abuse of discretion in the court's evidentiary
rulings. Moreover, none of the Plaintiffs' challenges to the
validity of the arbitration clause are cognizable in this court.
In sum, on whether Uber drivers belong to such a class of workers,
the Third Circuit concludes, as has its sister circuits, that they
do not. The work of Uber drivers is centered on local
transportation. Most Uber drivers have never made a single
interstate trip. When Uber drivers do cross state lines, they do so
only incidentally, as part of Uber's fundamentally local
transportation business. As a result, they are not "engaged in
foreign or interstate commerce" for the purposes of Section 1 of
the FAA. The District Court reached this conclusion in a detailed
and carefully reasoned opinion. The Third Circuit affirms.
A full-text copy of the Court's April 26, 2023 Opinion is available
at https://rb.gy/rgncl from Leagle.com.
Matthew D. Miller -- mmiller@swartz-legal.com -- Justin L. Swidler
-- jswidler@swartz-legal.com -- [ARGUED] Swartz Swidler, 9 Tanner
Street, Suite 101, Haddonfield, NJ 08033, Counsel for the Appellant
in No. 21-3234.
Catherine E. Anderson, Giskan Solotaroff & Anderson, 90 Broad
Street, 2nd Floor, New York, NY 10004.
Roosevelt N. Nesmith -- roosevelt@nesmithlaw.com -- [ARGUED] 363
Bloomfield Avenue, Suite 2-C, Montclair, NJ 07042.
Russell S. Warren, Jr., 473 Sylvan Avenue Englewood Cliffs, NJ
07632, Counsel for the Appellants in No. 21-3363.
Samuel E. Eckman -- seckman@gibsondunn.com -- Theane D. Evangelis
-- tevangelis@gibsondunn.com -- [ARGUED] Gibson Dunn & Crutcher,
333 South Grand Avenue, Suite 4600, Los Angeles, CA 90071.
Blaine H. Evanson -- bevanson@gibsondunn.com -- Gibson Dunn &
Crutcher, 3161 Michelson Drive, Suite 1200, Irvine, CA 92612.
Paul C. Lantis -- plantis@littler.com -- Littler Mendelson, 1601
Cherry Street Three Parkway, Suite 1400, Philadelphia, PA 19102,
Counsel for the Appellees.
UNITED STATES: Egolf Files Suit in D. Alaska
--------------------------------------------
A class action lawsuit has been filed against The United States.
The case is styled as Norman Egolf, on behalf of himself and all
persons similarly situated v. The United States, Case No.
4:23-cv-00007-SLG (D. Alaska, April 24, 2023).
The nature of suit is stated as Other Civil Rights.
The U.S. -- https://www.usa.gov/ -- is a country of 50 states
covering a vast swath of North America, with Alaska in the
northwest and Hawaii extending the nation's presence into the
Pacific Ocean.[BN]
The Plaintiff appears pro se.
UNITED STATES: Warning of Phishing Scam in Water Contamination Suit
-------------------------------------------------------------------
Caresse Jackman of NBC Nebraska 2 reports that the Better Business
Bureau has released an alert for phishing schemes based on the Camp
Lejeune class action lawsuit.
Keidra O'Neal received one of the fake emails that said she was
eligible for compensation, despite never serving in the military or
living at the military base.
"They were saying I won money out of a settlement and that I was
included in a class action lawsuit and I'm like 'how was my name
being pulled in a class action lawsuit?'" O'Neal said. "Like, it
was ridiculous."
O'Neal reported the scam to the Federal Trade Commission (FTC), The
Federal Communications Commission (FCC), and the Better Business
Bureau (BBB).
BBB spokesperson Josh Planos explained fraudsters will often
leverage legitimate operations, such as the Camp Lejeune case, and
weaponize them.
Planos said oftentimes the emails will contain a link that
downloads malware onto your device or direct you to a website that
asks for personal information or money.
He added that if you served in the Marines at Camp Lejeune during a
certain time period, you could be eligible for compensation.
Planos shared several tips on how to find out if you qualify to
receive compensation and avoid scams:
If you are eligible to be a member of a class action suit, always
apply through the official channel
For the Camp Lejeune class action case, the official channel is
va.gov/camplejeune
Settlements take time, so any offer of a quick payout is likely a
scam
Be wary of any unsolicited communication before you move forward
The Department of Veteran Affairs (VA) has additional information
on Camp Lejeune water contamination here. [GN]
UNIVERSITY HOSPITALS: Fails to Provide Meal Breaks, Gless Claims
----------------------------------------------------------------
CARLA GLESS, Individually and for Others Similarly Situated,
Plaintiff v. UNIVERSITY HOSPITALS HEALTH SYSTEM, INC., Defendant,
Case No. 1:23-cv-00875 (N.D. Ohio, April 26, 2023) alleges that the
Defendant's auto-deduction policy violated the Fair Labor Standards
Act, the Ohio Minimum Fair Wage Standards Act, and the Ohio Prompt
Pay Act.
Plaintiff Carla Gless worked as an anesthesia technician at
University Hospitals Health System, Inc. (UHHS) facilities in
Ravenna, OH from approximately October 1986 until October 2022.
She regularly worked more than 40 hours in a workweek. However,
UHHS did not pay her for all the hours she worked. Instead, UHHS
automatically deducted 30 minutes a day from her work time for
so-called meal breaks. Additionally, UHHS failed to provide Gless
with bona fide meal breaks and even required her to remain on duty
throughout their shifts and continuously subjects them to
interruptions, including during their unpaid meal breaks, says the
Plaintiff.
UHHS provides healthcare through an integrated network of 21
hospitals and more than 50 health centers and outpatient
facilities, and over 200 physician offices in 16 countries
throughout northern Ohio. [BN]
The Plaintiff is represented by:
Matthew J.P. Coffman, Esq.
COFFMAN LEGAL, LLC
1550 Old Henderson Road, Suite 126
Columbus, OH 43220
Telephone: (614) 949-1181
Facsimile: (614) 386-9964
E-mail: mcoffman@mcoffmanlegal.com
- and -
Michael A. Josephson, Esq.
Andrew W. Dunlap, Esq.
JOSEPHSON DUNLAP LLP
11 Greenway Plaza, Suite 3050
Houston, TX 77406
Telephone: (713) 352-1100
Facsimile: (713) 352-3300
E-mail: mjosephson@mybackwages.com
adunlap@mybackwages.com
- and -
Richard J. (Rex) Burch, Esq.
BRUCKNER BURCH PLLC
11 Greenway Plaza, Suite 3025
Houston, TX 77046
Telephone: (713) 877-8788
E-mail: rburch@brucknerburch.com
- and -
William C. (Clif) Alexandr,Esq.
Austin W. Anderson, Esq.
ANDERSON ALEXANDER, PLLC
101 N. Shoreline Blvd., Suite 610
Corpus Christi, TX 78401
Telephone: (361) 452-1279
Facsimile: (361) 452-1284
E-mail: clif@a2xlaw.com
austin@a2xlaw.com
USA TODAY: Two-Step FLSA Collective Certification Approach Rejected
-------------------------------------------------------------------
Monica L. Lacks of Ogletree Deakins reports that on April 14, 2023,
the United States District Court for the Eastern District of
Virginia (Ellis, J.) declined to conditionally certify a collective
of USA Today sports website editors, ruling that the familiar
two-step Fair Labor Standards Act (FLSA) collective certification
process would lead to irrelevant parties learning of and
potentially joining the lawsuit. In its ruling in Mathews v. USA
Today Sports Media Group, LLC, the district court relied heavily on
the Fifth Circuit Court Appeals' landmark decision in Swales v.
KLLM Transport Services, L.L.C., which requires district courts to
conduct a more rigorous analysis before ordering notice to
potential plaintiffs who may be eligible to opt in to an FLSA
lawsuit.
The Sixth Circuit Court of Appeals is set to rule on the issue
soon. In December 2022, the Sixth Circuit heard oral argument on an
appeal seeking to overturn a lower court's order that conditionally
certified two collective actions alleging the denial of overtime
and travel time pay to home health aides.
The Mathews Holding
Plaintiff Elizabeth Mathews alleged that she and similarly situated
employees were misclassified as independent contractors and owed
unpaid overtime under the FLSA. Mathews moved to conditionally
certify a collective of current and former employees who had
allegedly suffered the same violation. USA Today Sports Media
Group, LLC, the defendant, opposed the motion on the ground that
the FLSA did not authorize such conditional collective
"certifications" or, alternatively, that limited discovery was
warranted to determining whether Mathews could demonstrate that her
proposed collective met the FLSA's "similarly situated" standard.
In support of its argument, USA Today Sports Media Group cited the
Fifth Circuit's 2021 decision in Swales, which held that district
courts are not permitted to conditionally certify FLSA collective
actions before determining whether collective members are similarly
situated. Rather, district courts must determine whether proposed
collective action members are similarly situated only once and
authorize discovery on that point before making that determination.
Under Swales, such discovery should be limited to whether the named
plaintiff and the proposed collective are "similarly situated"; the
remainder of discovery in the case should occur only after the
district court determines whether the plaintiff's proposed
collective members are all "similarly situated."
Mathews argued that the district court should follow the familiar
two-step collective certification method. Under the two-step
process, a plaintiff need make only a minimal showing of "similarly
situated" employees to obtain "conditional certification" and have
notice sent to potential plaintiffs. Mathews could meet this
initial showing with her own pleadings and affidavits. The more
rigorous second step occurs after employees have had the
opportunity to opt in and the parties have completed substantial
discovery. Only after discovery can a defendant move to "decertify"
the conditionally certified collective class.
In Mathews, the United States District Court for the Eastern
District of Virginia rejected the two-step process, closely
tracking the Fifth Circuit's reasoning in Swales. The court
observed that the FLSA does not authorize district courts to send
notice to individuals who are not "similarly situated." The court
ordered the parties to conduct limited discovery to determine which
putative collective members were similarly situated for purposes of
sending notice.
Key Takeaways
The decision in Mathews represents a growing trend against the
familiar two-step approach to certification of collective actions
under the FLSA. The decision by the United States District Court
for the Eastern District of Virginia sets the stage for an appeal
to the Fourth Circuit Court of Appeals. The outcome of any such
appeal, along with the Sixth Circuit's imminent ruling on the same
question, could well create a substantial split in the circuits,
increasing the likelihood that the issue ultimately will make its
way to the Supreme Court of the United States.
Ogletree Deakins will continue to monitor developments with respect
to collective actions under the FLSA and will post updates on the
Class Action and Wage and Hour blogs as additional information
becomes available. Important information for employers is also
available via the firm's webinar and podcast programs. [GN]
VALUEELECTRONICS.COM: Bassaw Files ADA Suit in S.D. New York
------------------------------------------------------------
A class action lawsuit has been filed against ValueElectronics.com,
Inc. The case is styled as Shivan Bassaw, individually, and on
behalf of all others similarly situated v. ValueElectronics.com,
Inc., Case No. 1:23-cv-03479 (S.D.N.Y., April 26, 2023).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Value Electronics -- https://valueelectronics.com/ -- is well-known
and highly regarded as the go to place to purchase audio and video
equipment and a/v furniture.[BN]
The Plaintiff is represented by:
Edward Y. Kroub, Esq.
MIZRAHI KROUB LLP
225 Broadway, Ste. 39th Floor
New York, NY 10007
Phone: (212) 595-6200
Email: ekroub@mizrahikroub.com
VARSITY BRANDS: American Spirit Appeals Case Dismissal Ruling
-------------------------------------------------------------
Plaintiffs American Spirit and Cheer Essentials, Inc., et al.,
filed an appeal from the District Court's Order and Judgment dated
March 21, 2023 entered in the lawsuit entitled American Spirit and
Cheer Essentials, Inc., et al. v. Varsity Brands, LLC, et al., Case
No. 2:20-cv-02782, in the United States District Court for the
Western District of Tennessee at Memphis.
The case involves anti-trust claims brought against Varsity Brands,
its affiliated brands and companies, and its prior and present
owners. In brief, the plaintiffs allege that the defendants
conspired to and did in fact form a monopoly over the cheerleading
and scholastic merchandise industry in the United States. The
Plaintiffs filed their complaint on July 24, 2020, seeking class
certification, damages, and injunctive relief.
The case was transferred from the Northern District of Georgia to
Tennessee court on October 28, 2020.
As reported in the Class Action Reporter on March 21, 2022, the
Hon. Judge Tu M. Pham entered an order granting the Defendants'
motion for protective order and denying Plaintiffs' motion for
sanctions or to compel.
On May 25, 2022, the Defendants filed a motion to dismiss
Plaintiffs' First Amended Complaint under Federal Rules of Civil
Procedure 37 and 41 and Incorporated Memorandum of Law as well as
sealed motion to dismiss Plaintiffs' First Amended Complaint.
On October 18, 2022, the Defendants filed a Supplemental MOTION to
Dismiss Plaintiffs' First Amended Complaint and Supplemental Sealed
MOTION to dismiss Plaintiffs' First Amended Complaint.
On March 21, 2023, Chief Judge Sheryl H. Lipman entered an Order
granting the May 25, 2022 motion to dismiss and the sealed motion;
granting the October 18, 2022 supplemental motion to dismiss and
the sealed motion; denying as moot Defendants' March 16, 2023
motion to strike.
The appellate case is captioned as Amer Spirit and Cheer
Essentials, Inc., et al. v. Varsity Brands, LLC, et al., Case No.
23-5364, in the United States Court of Appeals for the Sixth
Circuit, filed on April 25, 2023.[BN]
Plaintiffs-Appellants AMERICAN SPIRIT AND CHEER ESSENTIALS, INC.,
by Heidi Weber, et al., are represented by:
Robert A. Falanga, Esq.
Handerson Kobelah Wellington Svensen Bennah, Esq.
FALANGA & CHALKER
11200 Atlantis Place, Suite C
Alpharetta, GA 30022
Telephone: (770) 955-0006
Defendants-Appellees VARSITY BRANDS, LLC, et al., are represented
by:
Adam Stephen Baldridge, Esq.
Grady M. Garrison, Esq.
Adam Stephen Baldridge, Esq.
Matthew Sinon Mulqueen, Esq.
BAKER, DONELSON, BEARMAN, CALDWELL & BERKOWITZ
165 Madison Avenue, Suite 2000
Memphis, TN 38103
Telephone: (901) 526-2000
VICAR OPERATING: Filing of Class Status Bid Due Oct. 23
-------------------------------------------------------
In the class action lawsuit captioned as JAZMONIQUE LEA,
individually and on behalf of herself and all others similarly
situated, v. VICAR OPERATING, INC., a Delaware Corporation; ANTECH
DIAGNOSTICS, INC., a California Corporation; and DOES 1-50,
inclusive, Case No. 3:22-cv-01718-RS (N.D. Cal.), the Hon. Judge
Richard Seeborg entered an order granting joint stipulation to
continue class certification related dates:
1. The hearing on the Motion for Class Certification will be
continued from August 17, 2023 at 1:30 p.m. to December 14,
2023.
2. The Plaintiff's motion for class certification will be filed
by
October 23, 2023.
3. The Defendant's Opposition, if any, will be due by November
13,
2023.
4. The Plaintiff's reply, if any, will be due by November 27,
2023.
Vicar Operating provides veterinary services.
A copy of the Court's order dated April 25, 2023 is available from
PacerMonitor.com at https://bit.ly/3VfUzyd at no extra charge.[CC]
VICTORIA'S SECRET: Sethy Sues to Recover Untimely Compensation
--------------------------------------------------------------
Yvette Sethy, individually and on behalf of all others similarly
situated v. VICTORIA'S SECRET STORES, LLC, Case No. 1:23-cv-03452
(S.D.N.Y., April 25, 2023), is brought to remedy violations of the
New York Labor Law ("NYLL") and to recover untimely wage
compensation for the Plaintiff and similarly situated retail store
employees who work or have worked as manual workers for the
Defendant in New York State.
The Defendant compensated the Plaintiff and all other Manual
Workers on a bi-weekly basis. Despite being Manual Workers, the
Defendant failed to properly pay the Plaintiff and other Manual
Workers their wages within seven calendar days after the end of the
week in which these wages were earned. In this regard, the
Defendant failed to provide timely wages to, and have taken
unlawful deductions from the wages of, the Plaintiff and all other
similar Manual Workers, says the complaint.
The Plaintiff was employed by the Defendant as a "Sales Manager" at
Victoria's Secret stores in Poughkeepsie, New York from April 2015
until January 2018, when she was promoted.
Victoria's Secret Stores, LLC owned and operated Victoria's Secret
retail clothing stores that that sells lingerie and underwear to
retail customers throughout the nation, including New York
State.[BN]
The Plaintiff is represented by:
D. Maimon Kirschenbaum, Esq.
Josef Nussbaum, Esq.
JOSEPH & KIRSCHENBAUM LLP
32 Broadway, Suite 601
New York, NY 10004
Phone: (212) 688-5640
Fax: (212) 981-9587
VICTORIA: Notice of Proposed Settlement in Towers Suit Discussed
----------------------------------------------------------------
Department of Health reports that in March 2021, Mr Idris Hassan
and Ms Hawa Warsame (the plaintiffs) commenced a class action
against the State of Victoria to challenge the 'lockdown' of people
in nine public housing towers in North Melbourne and Flemington
between 4 July and 18 July 2020.
The plaintiffs and the State of Victoria have agreed to resolve
this class action so that money is paid to eligible Group Members
of the class action. This is called a settlement. The settlement
will only take effect if it is approved by the Supreme Court.
Who can participate in the proposed settlement
Class action Group Members include residents or people staying at
below locations between Saturday 4 July and Thursday 9 July 2020:
9 Pampas Street, North Melbourne
159 Melrose Street, North Melbourne
76 Canning Street, North Melbourne
12 Sutton Street, North Melbourne
120 Racecourse Road, Flemington
126 Racecourse Road, Flemington
130 Racecourse Road, Flemington
12 Holland Court, Flemington
In addition, Group Members also include residents or those staying
between Saturday 4 July and Saturday 18 July 2020 at:
33 Alfred Street, North Melbourne.
Further information about the proposed settlement is available in
the Notice of Proposed Settlement, which sets out the options
available to Group Members to participate in, opt out or object to
the proposed settlement.
If the proposed settlement is approved by the Supreme Court,
Annexure A - Settlement Distribution Scheme, sets out how the
settlement scheme will operate, including how the settlement sum
will be distributed.
Options available to Group Members
Open all
Option 1: Register to participate in the proposed settlement
Option 2: Opt out from the proposed settlement and stop being a
Group Member in the proceeding
Option 3: Object to the proposed settlement
Important note: Group Members must register before 27 June 2023 to
have their eligibility to receive payment considered. Please use
the online Notice of Claim form to register.
Group Members may be contacted to provide further information to
assess eligibility. The proposed settlement will only take effect
if it is approved by the Supreme Court.
If you are not sure whether you are a Group Member or want further
information, you should contact Clemens Haskin Legal on (03) 9988
5035 or email info@clemenshaskin.com or seek your own legal
advice.
Copies of the Notice of Proposed Settlement and other notices are
also available at the Estate Towers Offices at:
North Melbourne Housing Office
33 Alfred Street, North Melbourne
(03) 9326 6377
Ascot Vale Housing Office
12 Churchill Ave, Ascot Vale
(03) 9371 6200
What to do if you're a Group Member but haven't received a notice
You can download the notice from this page or obtain copies of the
Notice of Proposed Settlement and other notices from the Estate
Towers Offices.
Translated versions of the notice
The information and notices will be translated into Amharic,
Arabic, Dari, Dinka, Farsi, Oromo, Simplified Chinese, Somali,
Tigrinya, Traditional Chinese, Turkish and Vietnamese. They will be
available on 10 May 2023 and can be accessed from this page, the
Estate Towers offices and other sources which will be made
available at that time. [GN]
VIESTE SPE: Crossfirst Bank Class Status Bid Tossed
---------------------------------------------------
In the class action lawsuit captioned as Crossfirst Bank, et al.,
v. Vieste SPE LLC, et al., Case No. 2:18-cv-01637-DLR (D. Ariz.),
the Hon. Judge Douglas L. Rayes entered an order denying the
Plaintiffs' motion for class certification, which Defendants have
uniformly opposed in responsive briefing.
The action arises from The Plaintiffs' purchase of $28,935,000 in
industrial development bonds described in the Defendants' Official
Statement dated April 17, 2013. The operative complaint alleges
aiding and abetting fraud, negligent misrepresentation, and common
law fraud claims and makes class action allegations.
The Plaintiff seeking class certification bears the burden to prove
the prerequisites to certifying a class. The Plaintiffs have not
proven by a preponderance of the evidence that the putative class
size exceeds 7 members, much less the speculation that the putative
class exceeds 200 members. Because The Plaintiffs have not
established numerosity, the Court need not address the other Rule
23 requirements and will deny class certification, the Court says.
Vieste LLC
Vieste specializes in capital program management for private,
public, quasi-public, and non-profit clients throughout North
America.
A copy of the Court's order dated April 25, 2023, is available from
PacerMonitor.com at https://bit.ly/3NpJd8N at no extra charge.[CC]
VOLKSWAGEN GROUP: Steinhardt Suit Removed to D. New Jersey
----------------------------------------------------------
The case captioned as Jason Steinhardt, on behalf of himself and
all others similarly situated v. Volkswagen Group of America, Inc.,
Audi of America, LLC, Case No. L-000501-23 was removed from the
Superior Court of the State of New Jersey, Mercer County, Law
Division, to the United States District Court for the District of
New Jersey on April 25, 2023, and assigned Case No. 3:23-cv-02291.
The "Class Action Complaint" ("CAC") alleges that "at least
thousands" of individuals/entities in the United States purchased
or leased putative class vehicles. The CAC asserts claims for
alleged violation of the Maryland Consumer Protection Act, breach
of express warranty, breach of implied warranty, and for unjust
enrichment. The CAC alleges inter alia that Plaintiff and the
putative class would not have purchased the subject vehicles1 or
would have paid less for them had they known of the alleged defect,
that Plaintiff himself expended $6,575.27 plus expenses for repair
of his vehicle, and the members of the putative class sustained
various alleged damages including compensatory damages, the cost of
repair of the putative class vehicles, restitution, diminution of
value of the putative class vehicles, unjust enrichment and
disgorgement, and punitive damages.[BN]
The Defendants are represented by:
Homer B. Ramsey, Esq.
Michael B. Gallub, Esq.
Brian T. Carr, Esq.
SHOOK, HARDY & BACON, L.L.P.
1 Rockefeller Plaza, 28th Floor
New York, NY 10020
Phone: (212) 989-8844
Fax: (929) 501-5455
Email: hramsey@shb.com
mgallub@shb.com
bcarr@shb.com
VSS-SOUTHERN THEATERS: Hoge Alleges Privacy Law Violations
----------------------------------------------------------
JEFFREY HOGE, individually and on behalf of others similarly
situated, Plaintiff v. VSS-SOUTHERN THEATERS LLC, Defendant, Case
No. 1:23-cv-00346 (M.D.N.C., April 26, 2023) arises out of the
Defendant's violations of the Video Privacy Protection Act.
In violation of the VPPA, since at least 2020, Southern Theaters
has partnered with Meta Platforms, Inc. and its Facebook social
media platform to collect personally identifiable information each
time a consumer views a video or purchases a ticket on Southern
Theaters’ websites. Simultaneously, as soon as a consumer decides
to visit a video page on Southern Theaters' websites, a tiny,
invisible piece of computer code called the "Meta Pixel" collects
the page's address, including the video's title, and sends the
information directly to Facebook, together with a digital ID that
allows Facebook to match the information to the consumer's Facebook
profile and all of the other information Facebook may have about
that consumer's demographics, affiliations, and tastes.
Accordingly, Southern Theaters benefits from this unauthorized
disclosure by receiving enhanced analytics and advertising
services, and Meta benefits by adding consumers' valuable
information to its marketing databases, which it can then use to
sell targeted advertisements, says the suit.
Southern Theaters is a Delaware corporation that does business in
North Carolina, with its headquarters in New Orleans, Louisiana. It
is a movie theater chain that operates throughout the southern US,
including three theaters in North Carolina. It allows patrons to
purchase tickets through its websites and also offers video
purchases and rentals for online streaming through its websites.
[BN]
The Plaintiff is represented by:
Allison Mullins, Esq.
L. Cooper Harrell, Esq.
TURNING POINT LITIGATION MULLINS DUNCAN HARRELL &
RUSSELL PLLC
300 North Greene Street, Suite 2000
Greensboro, NC 27401
Telephone: (336) 645-3320
Facsimile: (336) 645-3330
E-mail: amullins@turningpointlit.com
charrell@turningpointlit.com
- and -
Michael A. Caddell, Esq.
Cynthia B. Chapman, Esq.
Amy E. Tabor, Esq.
CADDELL & CHAPMAN
628 East 9th St.
Houston TX 77007
Telephone: (713) 751-0400
Facsimile: (713) 751-0906
E-mail: mac@caddellchapman.com
cbc@caddellchapman.com
aet@caddellchapman.com
VUARNET INC: Hwang Files ADA Suit in E.D. New York
--------------------------------------------------
A class action lawsuit has been filed against Vuarnet, Inc. The
case is styled as Jenny Hwang, on behalf of herself and all others
similarly situated v. Vuarnet, Inc., Case No. 1:23-cv-03166
(E.D.N.Y., April 26, 2023).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Vuarnet -- https://us.vuarnet.com/ -- eye protection and
symbolizing sport attitude with French elegance.[BN]
The Plaintiff is represented by:
Mars Khaimov, Esq.
14749 71st Ave.
Flushing, NY 11367
Phone: (917) 915-7415
Email: mars@khaimovlaw.com
WALMART INC: Hearing on Class Status Bid Set for August 18
----------------------------------------------------------
In the class action lawsuit captioned as CLAUDIA CARR and LASHAWNA
WICKER, individually and on behalf of all others similarly
situated; v. WALMART, INC., a corporation, WAL-MART ASSOCIATES,
INC., a corporation, and DOES 1 through 50, inclusive; Case No.
5:21-cv-01429-AB-KK (C.D. Cal.), the Hon. Judge Andre Birotte Jr.
entered an order granting joint stipulation to continue motion for
class certification dates, and trial and trial related deadlines,
as follows:
Event Proposed New
Ordered
Date Date
Motion for Class Certification
Hearing
The Plaintiff's Deadline July 28, 2023 July 28,
2023
to File Reply:
Hearing on The Plaintiffs'
Motion for Class Certification: Aug. 18, 2023 Aug. 18,
2023
Jury Trial Apr. 23, 2024 Apr. 23,
2024
Final Pretrial Conference Mar. 29, 2024 Mar. 29,
2024
Non-Expert Discovery Cut-off Dec. 1, 2023 Dec. 1,
2023
Deadline to Complete Settlement Feb. 2, 2024 Feb. 2,
2024
Conference:
Walmart is an American multinational retail corporation that
operates a chain of hypermarkets, discount department stores, and
grocery stores in the United States.
A copy of the Court's order dated April 25, 2023, is available from
PacerMonitor.com at https://bit.ly/42sJ0Gv at no extra charge.[CC]
WALMART INC: Kahn Appeals Consumer Suit Dismissal to 7th Cir.
-------------------------------------------------------------
YORAM KAHN is taking an appeal from a court order dismissing his
lawsuit entitled Yoram Kahn, individually and on behalf of all
others similarly situated, Plaintiff, v. Walmart Inc., Defendant,
Case No. 1:22-cv-04177, in the U.S. District Court for the Northern
District of Illinois.
As previously reported in the Class Action Reporter, Kahn filed
this putative class action against Walmart for charging him more
than the prices reflected on the store shelf for certain items that
he purchased. Kahn brings claims for violation of the Illinois
Consumer Fraud and Deceptive Business Practices Act (ICFA), the
Illinois Uniform Deceptive Trade Practices Act (UDTPA), and other
similar state consumer protection statutes. Kahn also brings a
claim for unjust enrichment.
Walmart filed a motion to dismiss the complaint pursuant to Federal
Rule of Civil Procedure 12(b)(6).
The Court finds the reasoning in Tudor v. Jewel Food Stores, Inc.,
288 Ill.App.3d 207 (1997), applies equally to this case, where
Walmart provides its customers with a receipt to compare the
scanned price with the shelf price. "Illinois law is clear that
where other information is available to dispel [a tendency to
mislead], there is no possibility for deception." Here, Walmart
provided Kahn with a receipt, reflecting the incorrectly scanned
prices. Kahn could, and indeed did, use this receipt to compare the
prices Walmart charged him with the advertised shelf pricing. This
comparison revealed the discrepancy and dispelled any potential
deception.
Additionally, the Court finds that Kahn cannot adequately allege
ICFA's intent element. In light of the fact that Walmart provided
Kahn with a receipt against which he could, and indeed did, compare
the shelf price to the scanned price to determine if they differed,
the Court cannot find that Walmart intended for Kahn to rely on the
incorrectly scanned price. The combination of the issuance of the
receipt, along with the money-back guarantee if the scanned price
differs from the shelf price, indicates the Defendant did not
intend that the Plaintiff rely on an incorrectly scanned price. As
such, the Court dismisses that claim because Kahn cannot plead two
of the required elements of his ICFA claim.
The Court further rules that Kahn's remaining claims fail for the
same reasons as his ICFA claim. Kahn alleges that Walmart violated
the UDTPA in the same way it violated ICFA: by advertising one
price on the shelf while selling the items at a higher, scanned
price. As the Court has already found, Kahn cannot plead the
required deceptive conduct or intent to deceive, and so his UDTPA
claim fails for the same reasons as his ICFA claim.
Finally, the Court rules that Kahn cannot pursue his class claims
because he has not adequately pleaded claims under Illinois'
consumer fraud statutes -- leaving him without any individual
claim. Thus, the Court dismisses Kahn's claims on behalf of a
multi-state class for violations of other states' consumer
protection statutes.
The appellate case is captioned Yoram Kahn v. Walmart Inc., Case
No. 23-1751, in the United States Court of Appeals for the Seventh
Circuit, filed on April 20, 2023.
The briefing schedule in the Appellate Case states that:
-- Transcript information sheet was due on May 4, 2023; and
-- Appellant Yoram Kahn's brief is due on May 30, 2023. [BN]
Plaintiff-Appellant YORAM KAHN, individually and on behalf of all
others similarly situated, is represented by:
Stephanie M. Beige, Esq.
BERNSTEIN LIEBHARD LLP
Ten E. 40th Street
New York, NY 10016
Telephone: (212) 779-1414
Defendant-Appellee WALMART INC. is represented by:
Daniel M. Blouin, Esq.
WINSTON & STRAWN LLP
35 W. Wacker Drive
Chicago, IL 60601
Telephone: (312) 558-7544
WASTE MANAGEMENT: Continues to Defend Securities Class Suit in NY
-----------------------------------------------------------------
Waste Management Inc. disclosed in its Form 10-Q Report for the
quarterly period ending March 31, 2023 filed with the Securities
and Exchange Commission on April 27, 2023, that the Company
continues to defend itself from securities class suit in the U.S.
District Court for the Southern District of New York.
In June 2022, the Company and certain of its officers were named as
defendants in a complaint alleging violation of the federal
securities laws and seeking certification as a class action in the
U.S. District Court for the Southern District of New York.
A lead plaintiff has been appointed and an amended complaint was
filed in January 2023. The amended complaint seeks damages on
behalf of a putative class of secondary market purchasers of its
senior notes with a special mandatory redemption feature issued in
May 2019, asserting claims under the Securities Exchange Act based
on alleged misrepresentations and omissions concerning the time for
completion of our acquisition of Advanced Disposal.
The Company will vigorously defend against this pending suit.
WASTE MANAGEMENT NATIONAL SERVICES, INC. is a Delaware corporation
and does business in the State of California.[BN]
WEST TECHNOLOGY: Mauldin Files Suit in D. Nebraska
--------------------------------------------------
A class action lawsuit has been filed against West Technology
Group, LLC. The case is styled as Marina Mauldin, individually and
on behalf of all others similarly situated v. West Technology
Group, LLC, Case No. 8:23-cv-00163-RFR-MDN (D. Neb., April 26,
2023).
The nature suit is stated as Other P.I. for Personal Injury.
West Technology Group, LLC -- https://www.west.com/ -- offers
communications services. The Company provides develops
technology-enabled communication solutions such as on-demand
automated conferencing, webinars and enterprise streaming, hosted
voice and networking, and webhosting services.[BN]
The Plaintiff is represented by:
David K. Lietz, Esq.
MASON LIETZ & KLINGER, LLP
5101 Wisconsin Avenue NW, Suite 305
Washington, DC 20016
Phone: (202) 429-2290
Fax: (202) 429-2294
Email: dlietz@milberg.com
- and -
Terence R. Coates, Esq.
MARKOVITS STOCK & DEMARCO, LLC
119 E. Court Street, Suite 530
Cincinnati, OH 45202
Phone: (513) 651-3700
Fax: (513) 665-0219
Email: tcoates@msdlegal.com
- and -
Gary M. Klinger, Esq.
MILBERG COLEMAN PHILLPS GROSSMAN PLLC
227 W. Monroe Street, Suite 2100
Chicago, IL 60606
Phone: (865) 247-0047
WEST TECHNOLOGY: Pulliam Files Suit in D. Nebraska
--------------------------------------------------
A class action lawsuit has been filed against West Technology
Group, LLC. The case is styled as Michelle Pulliam, on behalf of
herself and all others similarly situated v. West Technology Group,
LLC, Case No. 8:23-cv-00159-BCB-MDN (D. Neb., April 24, 2023).
The nature suit is stated as Other Personal Property for
Tort/Non-Motor Vehicle.
West Technology Group, LLC -- https://www.west.com/ -- offers
communications services. The Company provides develops
technology-enabled communication solutions such as on-demand
automated conferencing, webinars and enterprise streaming, hosted
voice and networking, and webhosting services.[BN]
The Plaintiff is represented by:
Joseph M. Lyon, Esq.
THE LYON FIRM
2754 Erie Avenue
Cincinnati, OH 45208
Phone: (513) 381-2333
Fax: (513) 766-9011
WOW RESTAURANT: Amended Bid to Dismiss Chen FLSA Suit Denied
------------------------------------------------------------
In the case, YANHONG CHEN and LUTONG YANG, on behalf of themselves
and all others similarly situated, Plaintiffs v. WOW RESTAURANT TH
LLC d/b/a YAKI SUSHI GRILL BBQ, and TRINH HUYNH, individually,
Defendants, Case No. 8:22-cv-2774-VMC-MRM (M.D. Fla.), Judge
Virginia M. Hernandez Covington of the U.S. District Court for the
Middle District of Florida, Tampa Division, denies the Defendants'
Amended Motion to Dismiss.
Yahong Chen and Lutong Yang worked at Yaki Sushi Grill BBQ from
August 2020 to April 2022 and July 2019 to April 2022,
respectively. Chen performed various tasks at the restaurant,
including "miscellaneous kitchen helper," waitress, hostess, and
cashier. Yang helped with renovation until the restaurant opened
and worked as a sushi chef. Chen received tips for her work as a
waitress but did not receive tips in any of her other roles. Yang
did not receive tips.
Yaki Sushi is owned by Wow, of which Huynh is a member. Huynh is
the only individual authorized to manage Wow, and she was on-site,
hands-on manager of Yaki Sushi who hired and supervised employees,
determined employees' salaries, and kept payroll records. Wow
promised to pay Chen and Yang a flat monthly salary and provided
lodging for both.
Chen and Yang worked approximately 97 hours per week; however, Wow
failed to keep records of employees' working time. It also failed
to record tips earned by its employees. Additionally, Wow defaulted
on its promise to pay its employees' full flat monthly salaries,
resulting in its employees, including Chen and Yang, earning less
than the minimum wage. Finally, it did not pay its employees
overtime.
On Dec. 6, 2022, Chen and Yang filed the putative collective and
class action against Wow and Huynh, alleging violations of the Fair
Labor Standards Act ("FLSA") and the Florida Minimum Wage Act
("FMWA"). They filed an amended complaint on Jan. 16, 2023. In
their amended complaint, they assert a FLSA minimum wage claim
against Wow and Huynh, on behalf of themselves and the collective
(Count I); a FMWA minimum wage claim against Wow, on behalf of
themselves and the class (Count II); a FLSA overtime claim against
Wow and Huynh, on behalf of themselves and the collective (Count
3); and a breach of contract claim against Wow on behalf of
themselves (Count IV).
On Jan. 29, 2023, Wow and Huynh filed their Amended Motion to
Dismiss, seeking dismissal of all counts. Chen and Yang have
responded.
Wow and Huynh make three distinct arguments in favor of dismissal:
(1) Chen and Yang have not sufficiently alleged that Yaki Sushi's
non-exempt employees were similarly situated to maintain a
collective action; (2) Chen and Yang failed to meet the pre-suit
notice requirement of the FMWA; and (3) Chen and Yang cannot bring
Counts II and IV against Huynh individually.
First, Judge Covington finds that Chen and Yang allege that all
employees were subject to the same pay policies and that they were
harmed by Wow and Huynh's failure to pay their employees minimum
wage or overtime pay. Therefore, at this stage, she says they have
sufficiently alleged that the potential collective members are
similarly situated to avoid dismissal of their collective claims.
Next, Judge Covington finds that Chen and Yang have brought a claim
not under Article X, but under the FMWA itself. On this issue,
courts are not divided -- the Plaintiffs must follow the pre-suit
notice requirement for such claims. Moreover, Chen and Yang have
cured the defect by providing sufficient notice prior to the filing
of their amended complaint. As such, the amended complaint complies
with the FMWA's pre-suit notice requirement.
Finally, Judge Covington Chen and Yang did not bring Count II or IV
against Huynh individually. In the amended complaint, they specify
that they assert Counts II and IV against Wow only.
Accordingly, Judge Covington denies the Defendants' Amended Motion
to Dismiss and denies as moot their Motion to Dismiss. She directs
the Defendants to file their answer to the amended complaint within
14 days of the date of the Order.
A full-text copy of the Court's April 26, 2023 Order is available
at https://rb.gy/o98bc from Leagle.com.
XCEL ENERGY: Hearing on Dismissal Bid Set for May
-------------------------------------------------
Xcel Energy Inc. disclosed in its Form 10-Q Report for the
quarterly period ending March 31, 2023 filed with the Securities
and Exchange Commission on April 27, 2023, that the evidentiary
hearing for the dismissal of Xcel Energy Inc. is set for May 2023.
In March 2022, a class action suit was filed in Boulder County
pertaining to the Marshall Fire.
In the remote event Xcel Energy Inc. or PSCo was found liable
related to this litigation and were required to pay damages, such
amounts could exceed the Company's insurance coverage and have a
material adverse effect on its financial condition, results of
operations or cash flows.
In December 2022, the District Court judge denied its Motion to
Dismiss. An evidentiary hearing regarding its request to dismiss
Xcel Energy, Inc. from the suit is scheduled for May 2023.
Xcel Energy Inc. is into electric and other services combined
based
in Minnesota.
YOUR INSURANCE: Padilla Sues Over Legal Assistants' Minimum Wages
-----------------------------------------------------------------
Annette Padilla, and other similarly situated individuals v. Your
Insurance Attorney, PLLC, Case No. 1:23-cv-21605 (S.D. Fla., Apr.
30, 2023) seeks to recover regular unpaid wages, liquidated
damages, costs, and reasonable Attorney's fees under the provisions
of the Fair Labor Standards Act on behalf of the Plaintiff and all
other current and former employees similarly situated to the
Plaintiff and who during one or more weeks on or after July 2022,
without being adequately compensated.
While employed by the Defendant, Ms. Padilla worked five days per
week, 8:30 AM to 6:00 PM (9.5 hours daily). She worked a total of
42.5, and was deducted five hours of lunchtime. On December 15,
2022, the Defendant terminated Ms. Padilla due to discriminatory
reasons. At the time of her termination, the Defendant did not pay
Ms. Padilla for her last two weeks of work. Ms. Padilla clocked in
and out, and the Defendant was in absolute control of her schedule
and activities. The Defendant knew the number of hours that Ms.
Padilla and other similarly situated individuals were working.
Therefore, the Defendant willfully failed to pay the Plaintiff
minimum wages in violation of the FLSA, says the suit.
Ms. Annette Padilla was employed by the Defendant as a non-exempted
legal assistant, from July 2, 2022, to December 15, 2022, or 21
Weeks.
Your Insurance is a law firm specializing in legal insurance
matters.[BN]
The Plaintiff is represented by:
Zandro E. Palma, Esq.
ZANDRO E. PALMA, PA.
9100 S. Dadeland Blvd., Suite 1500
Miami, FL 33156
Telephone: (305) 446-1500
Facsimile: (305) 446-1502
E-mail: zep@thepalmalawgroup.com
YUM! BRANDS INC: Beasley Files Suit in W.D. Kentucky
----------------------------------------------------
A class action lawsuit has been filed against Yum! Brands, Inc. The
case is styled as Haley Beasley, on behalf of herself and all
others similarly situated v. Yum! Brands, Inc., Case No.
3:23-cv-00206-GNS (W.D. Ky., April 24, 2023).
The nature suit is stated as Other P.I. for Personal Injury.
Yum! Brands, Inc. -- https://www.yum.com/ -- formerly Tricon Global
Restaurants, Inc., is an American fast food corporation listed on
the Fortune 1000.[BN]
The Plaintiff is represented by:
C. David Ewing, Esq.
Damon B. Willis, Esq.
EWING & WILLIS PLLC
6009 Brownsboro Park Blvd. Suite B
Louisville, KY 40207
Chicago, IL 60606
Phone: (502) 585-5800
Fax: (502) 585-5858
Email: ewingwillislaw@yahoo.com
damonwillislawyer@yahoo.com
- and -
Dylan J. Gould, Esq.
Terence R. Coates, Esq.
Jonathan Tehan Deters, Esq.
MARKOVITS STOCK & DEMARCO, LLC
119 E. Court Street, Suite 530
Cincinnati, OH 45202
Phone: (513) 651-3700
Fax: (513) 665-0219
Email: dgould@msdlegal.com
tcoates@msdlegal.com
jdeters@msdlegal.com
ZOETIS INC: De Lara Suit Removed to C.D. California
---------------------------------------------------
The case captioned as Angelika De Lara and Kent De Lara,
individually, and on behalf of members of the general public
similarly situated v. ZOETIS INC., a Delaware corporation; ZOETIS
LLC, a Delaware limited liability company; ZOETIS REFERENCE LABS
LLC, a Delaware limited liability company; ZOETIS SERVICES LLC, a
Delaware limited liability company; and DOES 1 through 10,
inclusive, Case No. 23CV01177 was removed from the Santa Barbara
County Superior Court, to the United States District Court for the
Central District of California on April 26, 2023, and assigned Case
No. 2:23-cv-03167.
In their Complaint, Plaintiffs assert nine causes of action against
the Defendants for: Violation of California Labor Code for unpaid
overtime; unpaid minimum wages; failure to provide meal periods;
failure to authorize and permit rest periods; non-complaint wage
statements and failure to maintain payroll records; wages not
timely paid upon termination; failure to timely pay wages during
employment; unlawful business practices; and unfair business
practices.[BN]
The Defendants are represented by:
Robert D. Vogel, Esq.
Monica H. Bullock, Esq.
JACKSON LEWIS P.C.
725 S Figueroa Street, Suite 2500
Los Angeles, CA 90017
Phone: (213) 689-0404
Email: Robert.Vogel@jacksonlewis.com
Monica.Bullock@jacksonlewis.com
ZYMERGEN INC: Class Certification Hearing Rescheduled to August 10
------------------------------------------------------------------
In the class action lawsuit captioned as BIAO WANG, Individually
and on Behalf of All Others Similarly Situated, v. ZYMERGEN INC.,
et al., Case No. 3:21-cv-06028-VC (N.D. Cal.), the Hon. Judge Vince
Chhabria entered an order granting the joint stipulation and order
revising deadlines and hearing date for motion for class
certification as follows.
1. The deadline for Defendants to file papers in opposition to
the
motion for class certification shall be extended until June
22,
2023;
2. The deadline for the Plaintiffs to file reply papers in
further
support of the motion for class certification shall be
extended
until July 27, 2023; and
3. The hearing on the Plaintiffs' motion for class
certification,
currently set for July 6, 2023, shall be rescheduled to
August
10, 2023 at 10:00 a.m. or such other date as the Court may
order.
4. No other dates or deadlines shall be affected.
On January 11, 2023, the Parties filed a Joint Case Management
Statement and Proposed Order that, among other things, proposed
deadlines for the filing of a motion for class certification (April
6, 2023), opposition papers (May 18, 2023), and reply papers (June
22, 2023) and proposed a hearing date of July 6, 2023.
On January 18, 2023, following an initial case management
conference, the Court entered an order that, among other things,
set a deadline for the filing of a motion for class certification
(April 6, 2023), set a hearing for July 6, 2023, and also required
the parties to participate in mediation no later than May 17, 2023.
On April 6, 2023, the Plaintiffs filed a motion for class
certification.
Zymergen is a biotechnology company that specializes in the fields
of machine learning, big data, and artificial intelligence.
A copy of the Court's order dated April 25, 2023 is available from
PacerMonitor.com at https://bit.ly/3oT4w8P at no extra charge.[CC]
The Plaintiff is represented by:
Christopher Seefer, Esq.
ROBBINS GELLER RUDMAN & DOWD LLP
- and -
Kristin Moody, Esq.
BERMAN TABACCO
The Defendants are represented by:
Susan S. Muck, Esq.
Kevin P. Muck, Esq.
Jessica L. Lewis, Esq.
Jordan C. Bradford-shivers, Esq.
Peter J. Kolovos, Esq.
WILMER CUTLER PICKERING HALE AND DORR LLP
One Front Street, Suite 3500
San Francisco, CA 94111
Telephone: (628) 235-1000
Facsimile: (628) 235-1001
E-mail: susan.muck@wilmerhale.com
kevin.muck@wilmerhale.com
jessica.lewis@wilmerhale.com
jordan.bradford-shivers@wilmerhale.com
peter.kolovos@wilmerhale.com
- and -
Charlene S. Shimada, Esq.
MORGAN, LEWIS & BOCKIUS LLP
*********
S U B S C R I P T I O N I N F O R M A T I O N
Class Action Reporter is a daily newsletter, co-published by
Bankruptcy Creditors' Service, Inc., Fairless Hills, Pennsylvania,
USA, and Beard Group, Inc., Washington, D.C., USA. Rousel Elaine T.
Fernandez, Joy A. Agravante, Psyche A. Castillon, Julie Anne L.
Toledo, Christopher G. Patalinghug, and Peter A. Chapman, Editors.
Copyright 2023. All rights reserved. ISSN 1525-2272.
This material is copyrighted and any commercial use, resale or
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Information contained herein is obtained from sources believed to
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The CAR subscription rate is $775 for six months delivered via
e-mail. Additional e-mail subscriptions for members of the same
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are $25 each. For subscription information, contact
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