/raid1/www/Hosts/bankrupt/CAR_Public/230515.mbx
C L A S S A C T I O N R E P O R T E R
Monday, May 15, 2023, Vol. 25, No. 97
Headlines
189 CHRYSTIE: Final Certification of Settlement Class Sought
4CIS INC: Weitlauf Seeks to Open Class Certification Discovery
ALAMEDA COUNTY, CA: Ct. Terminates Class Cert Deadlines, Hearings
AMAZON.COM INC: Kenny Files Suit Over False Discount Prices
AMERICAN FAMILY: Filing of Class Cert Bid Extended to August 24
APPLE INC: Plaintiffs Seek to Seal Portions of Memorandum
AQUESTIVE THERAPEUTICS: Lewakowski Securities Class Suit Terminated
ARAMARK FOOD: S.D. Florida Dismisses Cadejuste Suit With Prejudice
ARGO BLOCKCHAIN: Continues to Defend Murphy Class Suit in E.D.N.Y.
AT&T MOBILITY: Class Settlement in Razo Suit Gets Final Nod
B & B TRANSPORT: More to Time to File Class Cert. Bid Sought
BAYER HEALTHCARE: Faces Class Suit Over Gummies' False Ads
BCE-MACH III: Class Cert. Bid Must be Filed by March 15, 2024
BIG CITY: Seeks More Time to File Class Cert. Response
BINANCE CAPITAL: Class Cert Scheduling & Discovery Order Entered
BIOMARIN PHARMACEUTICAL: Securities Suit in California Settled
BOOZ ALLEN: $5.3-Mil. Class Settlement in Hunter Suit Has Final OK
BP EXPLORATION: Summary Judgment Entered; Butler's Claims Tossed
BP EXPLORATION: Summary Judgment Entered; Penn's Claims Dismissed
BP EXPLORATION: Summary Judgment Entered; Reed's Claims Dismissed
BURNTWOOD TAVERN: Bid to Dismiss Claims Against Minute Men OK'd
CALIFORNIA: Class Cert Bid Hearing in Dunsmore Set for June 29
CALIFORNIA: Thomas' Bid to File Class Action Civil Suit Denied
CAVALRY PORTFOLIO: Santiago Seeks to Certify Class Action
CBA SITE SERVICES: Brunson Files Suit in Cal. Super. Ct.
CEREBRAL INC: Hays Suit Removed to C.D. California
CITADEL SALISBURY: Hooker Bid for Class Certification Tossed
COCA-COLA BOTTLERS': Anderson's $3.3M Class Deal Wins Prelim. Nod
COCA-COLA BOTTLERS: Class Settlement in Anderson Gets Initial Nod
COMMUNITY HEALTH: Hearing on Initial OK of Settlement Not Set
CONSOL ENERGY INC: Continues to Defend ERISA Class Suit in Virginia
COSAN CONSTRUCTION: Rule 23 Class Action Certification Sought
DEVA CONCEPTS: Robaina Can't File Exclusion From Adams Class Deal
DOWNER EDI: Faces 2nd Suit Over Breach of Contract Disclosures
ENOVIX CORP: Court Consolidates Twitchell & Rosin Securities Suits
EPIC LANDSCAPE: Conditional Class Certification OK'd in Gomez Suit
INTUIT INC: Agrees to Settle Suit Over Tax Filing Fee for $141-M
JENNY CRAIG: Faces Class Suit Over WARN Act Violations
KROGER CO: Ninth Circuit Affirms Dismissal of Vitort Class Suit
MEDICAL SOLUTIONS: Dittman's Class Settlement Wins Final Approval
MISSISSIPPI: 5th Cir. Reverses Dismissal of Gonzales v. Gillis
MY PILLOW: Deutsch Lose Summary Judgment in Class Action
NATIONWIDE MUTUAL: Plaintiffs Seek Leave to File Unredacted Reply
NEW JERSEY: Court Narrows Claims in Planker v. Atkins and NJDOC
NEW YORK, NY: Miller Suit Parties to Refile Class Notice in 14 Days
NEW YORK, NY: More Time to Finalize Settlement in Payne Sought
NOVA HOME: Savinova Suit Seeks to Certify Class of Homecare Workers
O.H. BARKHORDAR: Carrasco Sues Over Failure to Pay Overtime Wages
OLYMPIAN LABS: Class Cert Scheduling Order Entered in Zarzuela
OUTDOORSMANS RESALE: Castro Files ADA Suit in S.D. New York
OVERSTOCK.COM INC: Continues to Defend Consolidated Securities Suit
PELOTON INTERACTIVE: Court Denies Passman's Class Certification Bid
PENUMBRA INC: Continues to Defend Labor Class Suit in California
POKE FIDI: Seeks More Time to Oppose Yuwono Class Certification Bid
PROCTER & GAMBLE: Meza Suit Transferred to S.D. Ohio
PROGRESSIVE CASUALTY: Ct. Won't Modify Class Definition in Volino
RENA WARE INTERNATIONAL: Brown Files ADA Suit in S.D. New York
RESTAURANT BRANDS: Continues to Defend Sherman Act Class Suit
REVENTICS LLC: Loeb Files Suit in D. Colorado
ROCKWELL COLLINS: Filing of Class Cert Bid Due May 24
SAN JOSE, CA: Plaintiffs Seek Reconsideration of April 7 Order
SAVAGE SERVICES: Vargas Sues Over Unpaid Compensations
SCHWAN'S CONSUMER: More Time to File Class Certification Bid Sought
SELECT BRANDS: Hernandez Files ADA Suit in S.D. New York
SERTA SIMMONS BEDDING: Hernandez Files ADA Suit in S.D. New York
SHAMROCK FOODS: Bell Suit Removed to S.D. California
SPARK PRETTY: Hwang Files ADA Suit in E.D. New York
SPEEDWAY LLC: Petroski Suit Removed to E.D. Pennsylvania
STERLING INFOSYSTEMS: Filing of Class Cert Bid Due Jan. 26, 2024
SUBWAY RESTAURANTS: Stay on Discovery Dispute in Amin Suit Lifted
SUGAR COOKIES INC: Hwang Files ADA Suit in E.D. New York
SYNERGY CHC CORP: Gonzales Suit Removed to C.D. California
THERALOGIX LLC: Hernandez Files ADA Suit in S.D. New York
TIVITY HEALTH: Class Cert Status Conference Set for May 22
TORRANCE REFINING: White Suit Removed to C.D. California
TRANSAMERICA LIFE: Ninth Circuit Affirms Dismissal of Clark Suit
TWITTER INC: Rodriguez's Individual Claims Sent to Arbitration
TWITTER INC: Seeks to Strike Class Action Claims & Allegations
UNITED HEALTHCARE: Deadline to File Scheduling Statement Extended
VELODYNE LIDAR: Plaintiffs Seek Leave to Submit Smith Transcript
VI-JON LLC: Loughlin Seeks Leave to File Unredacted Memorandum
VIDA LONGEVITY: $1.4MM Class Settlement in O'Hern Suit Has Final OK
VIDA SHOES: Hernandez Files ADA Suit in S.D. New York
WELLS FARGO: Bid to Compel Discovery Denied in Henzel Class Suit
WELLS FARGO: Wins in Part Bid to Dismiss Claims in Forbearance Suit
WESTERN UNION: Continues to Defend Consumidores Class Suit
WESTERN UNION: Continues to Defend Financial Privacy Act Class Suit
*********
189 CHRYSTIE: Final Certification of Settlement Class Sought
------------------------------------------------------------
In the class action lawsuit captioned as JUAN JESUS MATA ENRIQUEZ
and JAVAL ENCARNACION, individually and on behalf of all other
persons similarly situated, v. 189 CHRYSTIE STREET PARTNERS, LP
d/b/a THE BOX, VARIETY WORLDWIDE LLC, SIMON HAMMERSTEIN and JAVIER
VIVAS, Jointly and Severally, Case No. 1:21-cv-11195-SN (S.D.N.Y.),
the Plaintiffs ask the Court to enter an order:
1. Granting final certification of the Settlement Class
Members;
2. Granting final approval of the October 25, 2022 Classwide
Settlement Agreement and Release;
3. Granting approval of the FLSA Settlement; and
4. Granting such and other, further, or different relief as the
Court deems just and proper.
A copy of the Court's order dated April 28, 2023 is available from
PacerMonitor.com at https://bit.ly/3LSyCC7 at no extra charge.[CC]
The Plaintiffs are represented by:
Douglas B. Lipsky, Esq.
LIPSKY LOWE LLP
420 Lexington Avenue, Suite 1830
New York, NY 1830
Telephone: (212) 392-4772
E-mail: doug@lipskylowe.com
4CIS INC: Weitlauf Seeks to Open Class Certification Discovery
--------------------------------------------------------------
In the class action lawsuit captioned as JENNIFER WEITLAUF, v.
4CIS, Inc., et al., Case No. 1:21-cv-01052-LJV (W.D.N.Y.), the
Plaintiff files a motion to open discovery on class certification
under Rule 26(d).
Because four the Defendants are in default, but the Plaintiff needs
to conduct discovery in order to bring her motion for class
certification and to establish damages against them, good cause
exists for discovery under Rule 26(d).
The Plaintiff filed a putative class action Complaint alleging RICO
and FDCPA claims against several the Defendants. This Court entered
an Order dismissing several of these the Defendants, but with leave
to amend within 30 days. The Plaintiff chose not to amend her
Complaint, and her claims against several the Defendants are deemed
dismissed.
When the Defendants default in a putative class action, the
Plaintiff is "effectively precluded from engaging in a Rule 26(f)
conference" and opening discovery.
Thus, Rule 26(d) permits the Court to open discovery on the issues
of class certification and damages. Here, the Plaintiff will pursue
discovery related to the numerosity of the putative class, the
identities of the putative class members, and the amounts paid by
each class member to the defaulting the Defendants. The Plaintiff
intends to do the following:
A copy of the Court's order dated April 28, 2023 is available from
PacerMonitor.com at https://bit.ly/3APW1ht at no extra charge.[CC]
The Plaintiff is represented by:
Jonathan Hilton, Esq.
HILTON PARKER LLC
7544 Slate Ridge Blvd.
Reynoldsburg, OH 43068
Telephone: (614) 992-2277
Facsimile: (614) 927-5980
E-mail: jhilton@hiltonparker.com
ALAMEDA COUNTY, CA: Ct. Terminates Class Cert Deadlines, Hearings
-----------------------------------------------------------------
In the class action lawsuit captioned as Mohrbacher, et al., v.
Alameda County Sheriffs Office, et al., Case No. 3:18-cv-00050
(N.D. Cal.), the Hon. Judge James Donato entered an order
terminating class certification deadlines and hearings.
In light of the plaintiffs' settlement with Aramark and the Alameda
County defendants, the pending motion for class certification, is
terminated without prejudice to plaintiffs filing a renewed motion
that focuses on the propriety of adjudicating the remaining claims
on a classwide basis against the remaining defendant, California
Forensic Medical Group.
The Plaintiffs may file their renewed motion for class
certification by June 1, 2023. The Defendant CFMG may file an
opposition by June 15, 2023, and plaintiffs may file a reply by
June 22, 2023. The Court will set a hearing on the motion if
warranted. All remaining pretrial and trial dates are vacated
pending further order.
The nature of suit states civil rights -- other civil rights.
The Alameda County Sheriff's Office is a law enforcement agency
serving Alameda County, California.[CC]
AMAZON.COM INC: Kenny Files Suit Over False Discount Prices
-----------------------------------------------------------
Jon Styf of Top Class Actions reports that Amazon.com Inc. is
facing a class action lawsuit claiming its posted Amazon Prime
discounts are not discounts from a real price. Instead, plaintiffs
contend, Amazon.com posts a false price that was not consistently
used and then discounts from that price instead.
The proposed class includes any Amazon customer who purchased a
discounted product with a price of $500 or more where the original
price posted was not used for at least six months of the previous
year.
Lead plaintiff Ben Kinney claims he purchased an LG television on
Amazon that was priced at $1,496.99, marked down from $2,499.99,
and tagged as "40% off." After the purchase, the price on the
television then changed to $2,199 and stated "$700 off," according
to the class action.
The television, however, was normally sold on Amazon for $1,500 and
the price rose to $2,000 for approximately a month, the plaintiff
later found out, he claims.
Amazon pricing allegedly violates FTC guidelines
The pricing on Amazon violates Federal Trade Commission (FTC)
guidelines for advertising a comparison to former prices, the
plaintiff alleges. The FTC states a price comparison must be to a
bonafide former price and not an inflated price, where sales
weren't made, that was only created to then claim the item was
later on a discount.
The plaintiff claims Amazon Prime discounts regularly violate the
law and consumer trust and is asking for damages to be paid by
Amazon.com Inc. along with the costs of the case including court
and attorney's fees, as well as any further relief that the court
sees fit.
The company is also facing a class action lawsuit in federal court
in Oklahoma for allegedly sending unsolicited text messages.
Have you paid for a product marked as discounted but later found
out you paid the normal price? Let us know in the comments.
The plaintiff is represented by Daniel A. Edelman of Edelman,
Combs, Latturner & Goodwin LLC.
The Prime discount class action lawsuit is Kinney, et al. v.
Amazon.com Inc., et al., Case No. 1:23-cv-02523, in the U.S.
District Court for the Northern District of Illinois, Eastern
Division. [GN]
AMERICAN FAMILY: Filing of Class Cert Bid Extended to August 24
---------------------------------------------------------------
In the class action lawsuit captioned as HOLLY JOHNSON,
individually and on behalf of all others similarly situated, v.
AMERICAN FAMILY MUTUAL INSURANCE COMPANY, a Wisconsin corporation,
Case No. 3:22-cv-00214-jdp (W.D. Wis.), the Plaintiff asks the
Court to enter an order amending the Class Certification deadline:
Current Proposed
Deadline Deadline
Deadline for Plaintiffs' motion May 26, 2023 Aug. 24,
2023
For Class Certification
The Parties have been actively engaged in discovery. This includes
the exchange of written discovery, document production, and
third-party discovery. The Plaintiffs request that this Court
extend the class certification deadline by 90 days to provide the
Parties with additional time to complete discovery.
American Family offers auto, home, life, umbrella, business,
health, and farm and ranch insurance products and services.
A copy of the Plaintiff's motion dated April 27, 2023 is available
from PacerMonitor.com at https://bit.ly/3Hy8yKb at no extra
charge.[CC]
The Plaintiff is represented by:
Adam A. Schwartzbaum, Esq.
EDELSBERG LAW, P.A.
20900 NE 30th Ave., Suite 417
Aventura, FL 33180
Telephone: (305) 975-3320
E-mail: adam@edelsberglaw.com
The Defendant is represented by:
Christopher M. Assise, Esq.
SIDLEY AUSTIN LLP
One South Dearborn Street
Chicago, IL 60603
Telephone: (312) 853-7141
E-mail: cassise@sidley.com
APPLE INC: Plaintiffs Seek to Seal Portions of Memorandum
---------------------------------------------------------
In the class action lawsuit re Apple iPhone Antitrust Litigation,
Case No. 4:11-cv-06714-YGR (N.D. Cal.), the Plaintiffs submit an
interim administrative motion to consider whether another party's
material should be sealed in portions of the plaintiffs' reply
memorandum in further support of renewed motion for class
certification and supporting expert reply reports pursuant to the
September 26, 2022 stipulation and order modifying sealing
procedures and civil local rules 7-11(a) and 79-5(f).
The Plaintiffs include Robert Pepper, Stephen H. Schwartz, Edward
W. Hayter, and Edward Lawrence.
The Plaintiffs move to seal portions of their memorandum of points
and authorities in further support of their renewed motion for
class certification and to seal the supporting expert reply reports
of Daniel L. McFadden, Ph.D. and Rosa Abrantes-Metz, Ph.D. filed
therewith.
A copy of the Plaintiffs' motion dated April 28, 2023 is available
from PacerMonitor.com at https://bit.ly/3nuzzr4 at no extra
charge.[CC]
The Plaintiffs are represented by:
Rachele R. Byrd, Esq.
Betsy C. Manifold, Esq.
Mark C. Rifkin, Esq.
Matthew M. Guiney, Esq.
Thomas H. Burt, Esq.
WOLF HALDENSTEIN ADLER
FREEMAN & HERZ LLP
750 B Street, Suite 1820
San Diego, CA 92101
Telephone: (619) 239-4599
Facsimile: (619) 234-4599
E-mail: manifold@whafh.com
byrd@whafh.com
rifkin@whafh.com
guiney@whafh.com
burt@whafh.com
- and -
David C. Frederick, Esq.
Aaron M. Panner, Esq.
Kyle M. Wood, Esq.
KELLOGG, HANSEN, TODD, FIGEL &
FREDERICK, P.L.L.C.
1615 M Street, N.W., Suite 400
Washington, D.C. 20036
Telephone: (202) 326-7900
Facsimile: (202) 326-7999
E-mail: dfrederick@kellogghansen.com
apanner@kellogghansen.com
kwood@kellogghansen.com
- and -
Michael Liskow, Esq.
CALCATERRA POLLACK LLP
1140 Avenue of the Americas, 9th Floor
New York, NY 10036-5803
Telephone: (212) 899-1761
Facsimile: (332) 206-2073
E-mail: mliskow@calcaterrapollack.com
AQUESTIVE THERAPEUTICS: Lewakowski Securities Class Suit Terminated
-------------------------------------------------------------------
Aquestive Therapeutics Inc. disclosed in its Form 10-Q Report for
the quarterly period ending March 31, 2023 filed with the
Securities and Exchange Commission on May 2, 2023, that the United
States District Court for the District of New Jersey so-ordered the
Stipulation of Voluntary Dismissal of Lewakowski securities class
suit parties and terminated the case on April 7, 2023.
On April 7, 2023, the parties filed a Stipulation of Voluntary
Dismissal stating that plaintiffs determined not to file an amended
complaint and agreed to dismiss the action as to them with
prejudice.
On April 10, 2023, the Court so-ordered the stipulation and
terminated the lawsuit.
On March 1, 2021, a securities class action lawsuit, Deanna
Lewakowski v. Aquestive Therapeutics, Inc., et al., was filed in
the United States District Court for the District of New Jersey
alleging that the Company and certain of its officers engaged in
violations of the federal securities laws relating to public
statements made by the Company regarding the FDA approval of
Libervant.
Following the court's appointment of a lead plaintiff, an amended
complaint was filed by the plaintiffs on June 25, 2021.
Defendants filed a motion to dismiss on August 16, 2021, which
became fully briefed as of November 1, 2021.
On March 14, 2023, the Court entered an order granting Defendants'
motion to dismiss without prejudice and permitting plaintiffs leave
to file a final, Second Amended Complaint by April 14, 2023.
On April 7, 2023, the parties filed a Stipulation of Voluntary
Dismissal stating that plaintiffs determined not to file an amended
complaint and agreed to dismiss the action as to them with
prejudice.
On April 10, 2023, the Court so-ordered the stipulation and
terminated the lawsuit.
Aquestive Therapeutics, Inc., a specialty pharmaceutical company,
focuses on identifying, developing, and commercializing various
products to address unmet medical needs. The Company markets
Sympazan, an oral soluble film formulation of clobazam for the
treatment of lennox-gastaut syndrome; Suboxone, a sublingual film
formulation of buprenorphine and naloxone for the treatment of
opioid dependence; and Zuplenz, an oral soluble film formulation
of ondansetron for the treatment of nausea and vomiting associated
with chemotherapy and post-operative recovery in the United States
and internationally. Aquestive Therapeutics, Inc. was founded in
2004 and is headquartered in Warren, New Jersey.
ARAMARK FOOD: S.D. Florida Dismisses Cadejuste Suit With Prejudice
------------------------------------------------------------------
In the case, GIEUVOIS CADEJUSTE, Plaintiff v. ARAMARK FOOD
DISTRIBUTION, Defendant, Case No. 23-CV-14115-RAR (S.D. Fla.),
Judge Rodolfo A. Ruiz, II, of the U.S. District Court for the
Southern District of Florida dismisses the Plaintiff's Class Action
Civil Suite Complaint with prejudice.
The matter comes before the Court on Cadejuste's Class Action Civil
Suite Complaint which the Court construes as a civil rights
complaint under 42 U.S.C. Section 1983. The Plaintiff's Complaint
is a rambling and incoherent mess laden with references to the
Black Hebrew Israelites, long lists of fictional website URLs,
nutritional facts about random snack items, several smiling suns
with sunglasses (which the Plaintiff believes to be a depiction of
the Ancient Egyptian creator god Ra), and a fantastical drawing of
a person being abducted by a UFO under the watchful eyes of a demon
and that same smiling sun.
The Plaintiff, unsurprisingly, has a long history of filing other
frivolous civil suits in federal court and has not paid the filing
fee or filed a motion to proceed in forma pauperis in this case.
Under this set of circumstances, Judge Ruiz could dismiss the
Complaint without prejudice under the "three-strikes" provision of
28 U.S.C. Section 1915(g), but, given the frivolousness of the
Complaint and the Plaintiff's long history of meritless lawsuits,
he will instead dismiss the Complaint with prejudice and advise the
Plaintiff that sanctions will be imposed against him if he
continues to inundate the Court with his nonsensical and absurd
pleadings.
Based on the foregoing, Judge Ruiz dismisses the Complaint with
prejudice as frivolous and malicious pursuant to 28 U.S.C. Section
1915A. He denies all pending motions as moot and terminates all
deadlines, if any. The case is closed.
A full-text copy of the Court's April 28, 2023 Order is available
at https://rb.gy/410s4 from Leagle.com.
ARGO BLOCKCHAIN: Continues to Defend Murphy Class Suit in E.D.N.Y.
------------------------------------------------------------------
Argo Blockchain PLC disclosed in its Form 20-F Report for the
fiscal period ending December 31, 2023 filed with the Securities
and Exchange Commission on May 1, 2023, that the Company continues
to defend the Murphy class suit in the Eastern District of New
York.
The case, Murphy vs Argo Blockchain plc et al, was filed in the
Eastern District of New York on January 26, 2023.
The Company refutes all of the allegations and believes that this
class action lawsuit is without merit.
Argo Blockchain PLC, together with its subsidiaries, purports to
engage in the cryptocurrency mining business worldwide, including
the mining of Bitcoin or Bitcoin equivalents.[BN]
AT&T MOBILITY: Class Settlement in Razo Suit Gets Final Nod
-----------------------------------------------------------
In the class action lawsuit captioned as LUIS M. SALAS RAZO, on his
own behalf of and all others similarly situated, v. AT&T MOBILITY
SERVICES, LLC, et al.Case No. 1:20-cv-00172-JLT-HBK (E.D. Cal.),
the Hon. Judge Jennifer L. Thurston entered an order as follows:
1. The Plaintiff's motion for final approval of the Settlement
is granted.
2. 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 November 2, 2021, to September
21,
2022t; 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 No. CIVSB2117915,
pending
in the Superior Court for the State of California, County of
California County of San Bernardino."
3. Pursuant to their requests, Kellen Shaw, Natasha Alaya,
Isabel
Ramos, Joshua Katzen, Sumanth Bharadwaj, and Cleveland Harris
are excluded from the Settlement Class.
4. The PAGA award from the Gross Settlement Amount, including
payment of $7,500.00 to California's Labor and Workforce
Development Agency, is approved.
5. The request for a Class Representative service payment for
Razo
is granted in part, in the modified amount of $5,000.00.
6. Class Counsel’s motion for fees in the amount of 33 1/3% of
the
gross settlement fund -- in the total amount of $191,666.67
–
is granted.
7. Class Counsel's request for costs in the amount of $4,747.10
is
granted.
8. Settlement Administration costs in the amount of $27,047.00,
to
be paid from the Gross Settlement, are approved.
9. 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.
10. The Clerk of Court is directed to close this action.
Razo was employed as a sales representative at the AT&T Mobility
Store located in Madera, California. Razo 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."
Razo contends this underpayment was "evidenced in [his] paycheck
and accompanying wage statement issued June 13, 2018." He alleges
the wage statements also "failed to properly list all hours worked
which again
resulted in an underpayment of wages including overtime and double
time wages to employees. "
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 the Defendant and who held, or hold, job
positions which the Defendant have classified as "non-exempt"
personnel in the State of California. (The Class Period is
the
period from August 27, 2015, through and including the date
judgment is rendered in this matter).
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 August 27, 2015, through and including the
date judgment is rendered in this matter).
AT&T is an American telecommunications company.
A copy of the Court's order dated April 26, 2023 is available from
PacerMonitor.com at https://bit.ly/3NysuAr at no extra charge.[CC]
B & B TRANSPORT: More to Time to File Class Cert. Bid Sought
------------------------------------------------------------
In the class action lawsuit captioned as BRUCE WILLIAM BALLINGER,
an individual, on behalf of himself and all others similarly
situated, v. B & B TRANSPORT, INC.; and DOES 1 thru 50, inclusive,
Case No. 1:22-cv-01607-ADA-HBK (E.D. Cal.), the Parties file joint
stipulation to continue class certification and related deadlines
by 90 days to resolve pending discovery disputes as follows:
Class Certification Current Date New Date
Class Certification Discovery Nov. 6, 2023 Feb. 5,
2024
Deadline
Deadline to File Class Dec. 1, 2023 Feb.
29,2024
Certification Motion
Deadline to File Opposition Jan. 30, 2024 Apr. 29,
2024
for Class Certification
Deadline to File Reply for Feb, 29, 2024 May 29
2024
Class Certification
Deadline to File Settlement Feb. 29, 2024 May
29,2024
Notice
Hearing Date on Motion for Apr. 4, 2024 Jul. 3,
2024
Class Certification
B&B Transport is a transportation company based out of Fresno, CA.
A copy of the Parties' dated April 26, 2023 is available from
PacerMonitor.com at https://bit.ly/3LT0mGP at no extra charge.[CC]
The Plaintiff is represented by:
Eric B. Kingsley, Esq.
Liane Katzenstein Ly, Esq.
Jessica Bulaon, Esq.
KINGSLEY & KINGSLEY, APC
16133 Ventura Blvd., Suite 1200
Encino, CA 91436
Telephone: (818) 990-8300
Facsimile: (818) 990-2903
E-mail: eric@kingsleykingsley.com
liane@kingsleykingsley.com
jessi@kingsleykingsley.com
- and -
Emil Davtyan, Esq.
DAVTYAN LAW FIRM, INC.
400 N. Brand Blvd., Suite 700
Glendale, CA 91203
Telephone: (818)875-2008
Facsimile: (818)722-3974
E-mail: emil@davtyanlaw.com
The Defendant is represented by:
Christopher Cho, Esq.
Nalee Xiong, Esq.
LEWIS BRISBOIS BISGAARD &
SMITH LLP
633 W 5th St. Ste 4000,
Los Angeles, CA 90071
Telephone: (213) 250-1800
Facsimile: (213) 250-7900
E-mail: Nalee.xiong@lewisbrisbois.com
BAYER HEALTHCARE: Faces Class Suit Over Gummies' False Ads
----------------------------------------------------------
Brigette Honaker of Top Class Actions reports that according to a
false advertising class action lawsuit, Bayer misrepresented its
One A Day Fruit Bites multivitamin gummies as "natural" despite
containing synthetic ingredients. Consumers say they paid a higher
price for the One A Day gummies based on these advertisements,
causing a financial injury when they didn't get what they paid
for.
Do you qualify?
Bayer sells multiple versions of its One A Day Fruit Bites,
including:
One A Day Men's Fruit Bites Multivitamin
One A Day Women's Fruit Bites Multivitamin
Flintstone's Kids Fruit Bites Multivitamin
One A Day Women's 50+ Fruit Bites Multivitamin
One A Day Men's 50+ Fruit Bites Multivitamin
If you purchased One A Day Fruit Bites multivitamin gummies, you
may qualify to participate in this One A Day false advertising
class action lawsuit investigation.
Fill out the form on this page for more information.
One A Day Fruit Bites: overview
One A Day Fruit Bites are "natural" fruit multivitamin gummies.
These advertisements may entice consumers who want to get their
daily nutrients without consuming synthetic chemicals at the same
time. Unfortunately, according to a class action lawsuit, One A Day
Fruit Bites may not be as "natural" as promised.
One A Day gummies class action lawsuit
According to a false advertising class action lawsuit filed in July
2022, One A Day Fruit Bites are not "natural." In fact, the One A
Day gummies allegedly contain synthetic ingredients including the
following:
One A Day Fruit Bites are "natural" fruit multivitamin gummies.
These advertisements may entice consumers who want to get their
daily nutrients without consuming synthetic chemicals at the same
time. Unfortunately, according to a class action lawsuit, One A Day
Fruit Bites may not be as "natural" as promised.
One A Day gummies class action lawsuit
According to a false advertising class action lawsuit filed in July
2022, One A Day Fruit Bites are not "natural." In fact, the One A
Day gummies allegedly contain synthetic ingredients including the
following:
Cholecalciferol: a synthetic substance manufactured from the UV
irradiation of cholesterol byproducts.
Niacinamide: a synthetic vitamin manufactured through various
chemical processes.
Pyridoxine hydrochloride: a synthetic substance manufactured
through chemical synthesis.
D-biotin: a synthetic form of biotin manufactured through chemical
processes.
Potassium iodide: a synthetic chemical made by reacting hydriodic
acid with potassium bicarbonate.
The plaintiff in the class action lawsuit says he purchased the One
A Day gummies believing that they were free of synthetic
ingredients including those listed above. He claims he paid a
higher price for the vitamins thinking they were natural as
promised.
The natural products industry grows from year to year, proving that
consumers are more interested in finding natural alternatives to
traditionally synthetic products such as vitamins. According to
Persistence Market Research, the natural and organic personal care
products industry is expected to increase by 9.7% per year and be
valued at $66.1 billion by the end of 2033.
According to the One A Day class action lawsuit, Bayer sought to
take advantage of these trends with false advertising. Since the
One A Day Fruit Bites are not "natural" as promised, the plaintiff
and other consumers allegedly suffered from financial damages
because they were misled into paying higher prices.
"Had Defendant not made the false, misleading, and deceptive
representation that the products were natural, Plaintiff would not
have been willing to pay the same amount for the products, and,
consequently, would not have been willing to purchase the
products," the One A Day gummies class action lawsuit contends.
The false advertising class action lawsuit seeks compensation for
the financial damages he and other consumers experienced as a
result of the alleged One A Day false advertising.
Join a One A Day gummies class action lawsuit investigation
Multiple One A Day gummies may have been advertised with misleading
"natural" promises, including:
One A Day Men's Fruit Bites Multivitamin
One A Day Women's Fruit Bites Multivitamin
Flintstone's Kids Fruit Bites Multivitamin
One A Day Women's 50+ Fruit Bites Multivitamin
One A Day Men's 50+ Fruit Bites Multivitamin
If you purchased One A Day Fruit Bites multivitamin gummies, you
may qualify to participate in this One A Day false advertising
class action lawsuit investigation.
Fill out the form on this page for a FREE case evaluation. [GN]
BCE-MACH III: Class Cert. Bid Must be Filed by March 15, 2024
-------------------------------------------------------------
In the class action lawsuit captioned as SAGACITY, INC., et al., on
behalf of themselves and all others similarly situated, v. BCE-MACH
III LLC, Case No. 6:23-cv-00039-JFH-GLJ (E.D. Okla.), the Hon.
Judge Gerald L. Jackson entered a scheduling order as follows:
1. Joinder of additional parties or Aug. 31, 2023
amendments to pleadings
2. Documents previously produced by Feb. 16, 2024
parties shall be deemed authenticated
except as to those objected to
3. Class Certification Motion filed Mar. 15, 2024
with all supporting evidence, including
expert disclosures
4. Class Certification Response filed with May 15, 2024
all supporting evidence, including
expert disclosures
5. Class Certification Reply filed with June 17, 2024
any rebuttal evidence, including
rebuttal expert disclosures, if any
6. Class Certification Discovery Cutoff June 17, 2024
7. Evidentiary hearing on The Plaintiff's July 9, 2024
Motion for Class Certification
A copy of the Court's order dated April 27, 2023 is available from
PacerMonitor.com at https://bit.ly/3NDmdDw at no extra charge.[CC]
BIG CITY: Seeks More Time to File Class Cert. Response
------------------------------------------------------
In the class action lawsuit captioned as Pineda v. Big City Realty
Management, LLC et al., Case No. 1:22-cv-05428-BMC (EDNY), the
Defendants ask the Court to enter an order extending the time file
a response to plaintiff's motion for class certification and to
amend the complaint filed on April 14, 2023.
Currently, the Defendants' last day to respond to the Plaintiff's
motion is April 28, 2023, and defendants seek an extension to May
10, 2023.
The Defendants seek the extension in order to properly address the
arguments made in the motion which required additional internal
investigation. Moreover, the prior extensions from the initial
motion schedule caused unforeseen scheduling issues with counsel
and the individually named plaintiffs. There has been no previous
request for an extension in this matter and plaintiff's counsel has
consented to the extension.
Accordingly, the defendants respectfully request that the Court
grant their request to extend the defendants' time to respond to
plaintiff's motion to May 10, 2023.
Big City offers brokerage services like buying, selling, property
management, leasing, and real estate consultation.
A copy of the Defendants' motion dated April 26, 2023 is available
from PacerMonitor.com at https://bit.ly/3pa4E3z at no extra
charge.[CC]
The Defendants are represented by:
Peter Metis, Esq.
LAW OFFICES OF PETER METIS, LLC
46 Trinity Place, 5th Floor
New York, NY 10006
Telephone: (212) 808-7780
Facsimile: (646) 908-2468
E-mail: pmetis@metislawoffice.com
BINANCE CAPITAL: Class Cert Scheduling & Discovery Order Entered
----------------------------------------------------------------
In the class action lawsuit captioned as KAMIL KUKLINSKI, v.
BINANCE CAPITAL MANAGEMENT CO., LTD, et al., Case No.
3:21-cv-01425-SPM (S.D. Ill.), the Hon. Judge Stephen P. Mcglynn
entered an order adopting amended joint report and proposed
scheduling and discovery order as follows:
-- Depositions upon oral examination, interrogatories, requests
for
documents, and answers and responses thereto shall not be
filed
unless on order of the Court.
-- Disclosures or discovery under Federal Rule of Civil Procedure
26(a) are to be filed with the Court only to the extent
required
by the final pretrial order, other Court order, or if a
dispute
arises over the disclosure or discovery and the matter has
been
set for briefing.
-- The parties should note that they may, pursuant to Federal
Rule
of Civil Procedure 29, modify discovery dates set in the Joint
Report by written stipulation, except that they may not modify
a
date if such modification would impact (1) the date of any
court
appearance, (2) the deadline for completing the mandatory
mediation session or the mandatory mediation process (if
applicable), (3) the deadline for completing all discovery, or
(4) the deadline for filing dispositive motions.
A copy of the Court's order dated April 27, 2023 is available from
PacerMonitor.com at https://bit.ly/3Lu5Lmw at no extra charge.[CC]
BIOMARIN PHARMACEUTICAL: Securities Suit in California Settled
--------------------------------------------------------------
In the class action lawsuit re BioMarin Pharmaceutical Inc.
Securities Litigation, Case No. 3:20-cv-06719 (N.D. Cal.), the Hon.
Judge William H. Orrick entered an order finding as moot motion to
certify class in light of settlement.
The suit alleges violation of the Securities Exchange Act.
BioMarin is an American biotechnology company headquartered in San
Rafael, California.[CC]
A copy of the Court's order dated April 28, 2023 is available from
PacerMonitor.com at https://bit.ly/44vl3jl at no extra charge.[CC]
BOOZ ALLEN: $5.3-Mil. Class Settlement in Hunter Suit Has Final OK
------------------------------------------------------------------
In the case, SARAH J. HUNTER and DAVID N. YOUTZ, on behalf of
themselves and all others similarly situated, Plaintiffs v. BOOZ
ALLEN HAMILTON INC., et al., Defendants, Case No. 2:19-cv-00411
(S.D. Ohio), Judge Algenon L. Marbley of the U.S. District Court
for the Southern District of Ohio, Eastern Division, grants:
(i) the Plaintiffs' Amended Motion for an Award of Attorneys'
Fees and Costs; and
(ii) the Plaintiffs' Amended Motion for Final Approval of
Class Action Settlement.
Plaintiffs Hunter and Youtz, on behalf of themselves and all others
similarly situated, allege that Defendants Booz Allen, Mission
Essential Personnel, LLC ("ME"), CACI International, Inc., and CACI
Technologies LLC ("CACI"), unlawfully entered into agreements not
to hire, recruit, or solicit one another's employees at Joint
Intelligence Operations Center Europe ("JIOCEUR") Analytic Center
("JAC") in Molesworth, England, in violation of the Sherman
Antitrust Act of 1890, 15 U.S.C. Sections 1-7.
After three years of litigation, the Plaintiffs reached Settlement
Agreements with the Defendants; in December 2022, the Court
preliminarily certified the Settlement Class pursuant to Rule 23
and approved the Settlement Agreements. The Settlement Agreements
provide a total of $5,275,000, including $1,325,000 for the
Settlement Class and $3.95 million in attorneys' fees and costs.
Now before the Court are the Plaintiffs' Amended Motion for an
Award of Attorneys' Fees and Costs and Amended Motion for Final
Approval of Class Action Settlement. Both motions are unopposed by
the Defendants, and no class member has objected. Judge Marbley
held a Fairness Hearing on April 12, 2023, at 9:30 a.m.
The Defendants are defense contractors, who provide intelligence
services to the United States government pursuant to contracts with
the U.S. Defense Intelligence Agency ("DIA"). Some of that work
takes place at JAC: a former Royal Air Force base in Molesworth,
United Kingdom, that now serves as the military intelligence
analysis center for the U.S. European Command.
The Plaintiffs, who were employed by the Defendants at JAC, allege
that the Defendants entered into agreements not to hire one
another's employees (also referred to as "no-poach agreements"),
which served to eliminate competition and depress compensation. The
Defendants, on the other hand, suggest that their hiring activities
were justified as part of a lawful team-building approach; they
continue to deny all allegations of wrongdoing.
Hunter initiated the action on Feb. 7, 2019. Youtz was added on May
3, 2019. Over the next three years, the parties litigated the
action vigorously. Finally, between April 29, 2021, and April 20,
2022, the parties participated in three mediation sessions, first
between the Plaintiffs and CACI and two further sessions between
the Plaintiffs and Booz Allen and ME, through which the parties
reached settlement agreements. The Plaintiffs executed a settlement
agreement with CACI on June 8, 2021 and a separate agreement with
Booz Allen and ME on Sept. 2, 2022.
The Settlement Agreements resolve all claims by the Plaintiffs and
the Settlement Class against the Defendants, with the Settlement
Class defined as: All natural persons employed by Defendants at JAC
Molesworth during the Class Period from Jan. 1, 2015 through June
30, 2022. The total value of the Settlement Agreements stands at
$5,275,000, with $1,325,000 allocated for the Settlement Class and
$3.95 million in fees and costs for the Class Counsel.
The Booz Allen/ME Settlement Agreement creates an all-cash
Settlement Fund of $1,325,000 (plus interest, if any), to be
distributed to the Settlement Class. The funds will be paid into an
escrow account at Citibank, N.A., within 30 business days of the
agreement becoming effective. The amount each class member will
receive from the fund will be calculated by dividing her estimated
total salary during the Class Period by the combined estimated
total salaries paid to all Class Members during the Class Period,
and multiplying that fraction by the total fund amount. Any
remaining funds will be given to the Settlement Class or
distributed cy pres.
The Settlement Agreements also contemplate compensation for the
Plaintiffs' attorneys' fees and costs and incentive awards for the
class representatives, Hunter and Youtz, in addition to the
Settlement Fund. In total, the Plaintiffs seek $3,95 million ($3.75
million from Booz Allen and ME and $200,000 from CACI) in fees and
costs. The Plaintiffs explain that the Class Counsel have incurred
approximately $2,129,065 in litigation expenses, plus $82,500 for
settlement administration; the Class Counsel also seek $20,000 for
incentive awards and $1,718,435 in attorneys' fees.
On Dec. 19, 2022, the Court granted in part and denied in part the
Plaintiffs' Motions for Preliminary Approval of Class Settlement.
On Feb. 6, 2023, the Settlement Administrator mailed class notices
to 609 members of the Settlement Class for whom Defendants had
provided mailing addresses over the preceding months. In total, the
Settlement Class consists of 647 employees who were employees of
the Defendants at JAC Molesworth from Jan. 1, 2015, to June 30,
2022. The Settlement Administrator has been unable to effect
service on six class members. Six class members have opted-out of
the Booz Allen-ME Settlement Agreement (one untimely), three of
whom also opted-out of the CACI Settlement. The Class Counsel has
responded to inquiries from 33 members of the Class.
Judge Marbley finds that the settlement of the action, as embodied
in the terms of the Settlement Agreements between the parties, is
fair, reasonable, and adequate in light of the factual, legal,
practical and procedural considerations raised by this suit. He
grants the Plaintiffs' request for final approval of the Settlement
Agreements and certifies the Settlement Class for settlement
purposes. He further the Plaintiffs' request for attorneys' fees
and costs.
Accordingly, Judge Marbley certifies the Rule 23 Class for
settlement purposes, consisting of the following: All natural
persons employed by Defendants at JAC Molesworth during the Class
Period from Jan. 1, 2015, through June 30, 2022.
He approves the Named Plaintiffs, Sarah J. Hunter and David N.
Youtz, as the Class Representatives; and appoints as the Class
Counsel the Joseph Saveri Law Firm LLP and Gibbs Law Group LLP.
Without affecting the finality of his judgment, Judge Marbley
reserves jurisdiction over the implementation, administration, and
enforcement of this judgment and the Agreements and all matters
ancillary to the same. The Order and the Agreements are not
evidence of, or an admission or concession on the part of, the
Released Parties with respect to any claim of any fault, liability,
wrongdoing, or damages whatsoever.
To be paid pursuant to the terms of the Settlement Agreements,
Judge Marbley awards:
i. attorneys' fees and reimbursements of their costs and
expenses in the total amount of $3,925,000 ($1,718,435 in fees and
$2,211,565 in litigation and settlement administration costs); and
ii. to Class Representatives Sarah J. Hunter and David N.
Youtz $10,000 each for service and assistance to the Class.
The Settlement Fund will consist of $1,325,000 from Booz Allen
Hamilton and Mission Essential Personnel, to be distributed by the
Claims Administrator in accordance with the terms of the Settlement
Agreements and the Final Order.
The action, including all individual and class claims against
Defendants Booz Allen Hamilton, Inc., Mission Essential Personnel,
LLC, CACI International, Inc., and CACI Technologies LLC, resolved,
is dismissed on the merits and with prejudice against the Class
Representative and all other Settlement Class Members, except any
Opt-Outs, without fees or costs to any party or non-party except as
otherwise provided in the Final Approval Order.
A full-text copy of the Court's May 2, 2023 Opinion & Order is
available at https://rb.gy/rgetq from Leagle.com.
BP EXPLORATION: Summary Judgment Entered; Butler's Claims Tossed
----------------------------------------------------------------
In the case, LAKESHA BUTLER v. BP EXPLORATION & PRODUCTION, INC.,
ET AL., SECTION "R" (5), Civil Action No. 17-4145 (E.D. La.), Judge
Sarah S. Vance of the U.S. District Court for the Eastern District
of Louisiana grants:
a. BP Exploration & Production, Inc., BP America Production
Co., and BP p.l.c.'s motion to exclude the testimony of the
Plaintiff's general causation expert, Dr. Jerald Cook; and
b. the BP parties' motion for summary judgment.
The case arises from the Plaintiff's alleged exposure to toxic
chemicals following the Deepwater Horizon oil spill in the Gulf of
Mexico. She alleges that she was exposed to crude oil and
dispersants from her work as an onshore cleanup worker. The
Plaintiff represents that this exposure has resulted in the
following health problems: headaches, stomach cramps, abdominal
pain, diarrhea, nausea, light sensitivity, chronic eye irritation,
chemically induced chronic conjunctivitis, wheezing, shortness of
breath, reactive airway disease, night sweats, insomnia,
depression, anxiety, dermatitis, acne, blistering, itching,
lesions, welts, arthritis, myalgia, and dizziness.
The Plaintiff's case was originally part of the multidistrict
litigation ("MDL") pending before Judge Carl J. Barbier. Her case
was severed from the MDL as one of the "B3" cases for plaintiffs
who either opted out of, or were excluded from, the Deepwater
Horizon Medical Benefits Class Action Settlement Agreement. The
Plaintiff opted out of the settlement. After her case was severed,
it was reallocated to this Court. The Plaintiff asserts claims for
general maritime negligence, negligence per se, and gross
negligence against the Defendants because of the oil spill and its
cleanup.
To demonstrate that exposure to crude oil, weathered oil, and
dispersants can cause the symptoms the Plaintiff alleges in her
complaint, she offers the testimony of Dr. Cook, an occupational
and environmental physician. Dr. Cook is the Plaintiff's sole
expert offering an opinion on general causation. In his March 14,
2022 report, Dr. Cook utilizes a general causation approach to
determine if a reported health complaint can be from the result of
exposures sustained in performing oil spill cleanup work.
The BP parties contend that Dr. Cook's expert report should be
excluded on the grounds that that it is unreliable and unhelpful.
They also move for summary judgment, asserting that if Dr. Cook's
general causation opinion is excluded, the Plaintiff is unable to
carry her burden on causation. The Plaintiff opposes both motions,
contending that the Defendants' failure to record quantitative
exposure data during the oil spill response amounts to spoliation,
and seeks the admission of Dr. Cook's report as a sanction. The
Defendants oppose the Plaintiff's motion.
Judge Vance finds that Dr. Cook's failure to identify the level of
exposure to a relevant chemical that can cause the conditions
asserted in the Plaintiff's complaint renders his opinion
unreliable, unhelpful, and incapable of establishing general
causation. Given Dr. Cook's failure to determine the relevant
harmful level of exposure to chemicals to which the Plaintiff was
exposed for her specific conditions, he lacks sufficient facts to
provide a reliable opinion on general causation.
Judge Vance also finds that Dr. Cook's report is unhelpful to the
factfinder for many of the same reasons. Dr. Cook's opinion is
unhelpful because of his inability to link any specific chemical
that the Plaintiff was allegedly exposed to, at the level at which
she was exposed, to the health conditions that she purportedly
experiences. He makes no attempt to identify which chemicals within
crude oil the Plaintiff was allegedly exposed to.
In sum, Judge Vance holds that the Plaintiff, as the party offering
the testimony of Dr. Cook, has failed to meet her burden of
establishing the reliability and relevance of Dr. Cook's report.
Given that Dr. Cook's report is unreliable and fails to provide the
"minimal facts necessary" to establish general causation in the
case, Judge Vance grants the Defendants' motion to exclude Dr.
Cook's testimony.
The Plaintiff's motion seeks the sanction of admission of Dr.
Cook's report. She asserts that this sanction is appropriate
because BP's decision to not record quantitative exposure data
during the BP Oil Spill response has deprived plaintiff of data
which would quantitatively establish her exposure.
However, Judge Vance finds that the Plaintiff's spoliation motion
suffers a number of deficiencies. First, the Plaintiff's contention
that BP's failure to conduct monitoring amounts to spoliation is
based on the faulty premise that BP was obligated to develop
evidence in anticipation of litigation. Further, the remedy the
Plaintiff seeks -- admission of Dr. Cook's expert opinion despite
its numerous deficiencies -- is unwarranted. Judge Vance thus
denies the Plaintiff's motion to admit Dr. Cook's report as a
sanction despite its failure to meet the requirements of Fed. R.
Evid. 702.
Finally, given that the Plaintiff cannot prove a necessary element
of her claims against the Defendants, her claims must be dismissed.
Accordingly, Judge Vance grants the Defendants' motion for summary
judgment.
For the foregoing reasons, Judge Vance grants the BP parties'
motion to exclude the testimony of Dr. Cook; denies the Plaintiff's
motion to admit Dr. Cook's report as a sanction for the Defendants'
alleged spoliation; grants the BP parties' motion for summary
judgment; and dismisses with prejudice the Plaintiff's claims.
A full-text copy of the Court's April 28, 2023 Order & Reasons is
available at https://rb.gy/c6bdt from Leagle.com.
BP EXPLORATION: Summary Judgment Entered; Penn's Claims Dismissed
-----------------------------------------------------------------
In the case, TAVARISH PENN v. BP EXPLORATION & PRODUCTION, INC., ET
AL., Civil Action No. 17-4080 (E.D. La.), Judge Sarah S. Vance of
the U.S. District Court for the Eastern District of Louisiana
grants:
a. BP Exploration & Production, Inc., BP America Production
Co., and BP p.l.c.'s motion to exclude the testimony of the
Plaintiff's general causation expert, Dr. Jerald Cook; and
b. the BP parties' motion for summary judgment.
The case arises from the Plaintiff's alleged exposure to toxic
chemicals following the Deepwater Horizon oil spill in the Gulf of
Mexico. He alleges that he was exposed to crude oil and dispersants
from his work as an onshore and offshore cleanup worker. The
Plaintiff represents that this exposure has resulted in the
following health problems: rashes, itching, scaling, eye
irritation, shortness of breath, chronic bronchitis, throat pain,
runny nose, congestion, sinusitis, chronic rhinitis, nose bleeds,
decreased sense of smell, vomiting, abdominal pain, diarrhea,
headache, dizziness, brain fog, and hypertension.
The Plaintiff's case was originally part of the multidistrict
litigation ("MDL") pending before Judge Carl J. Barbier. His case
was severed from the MDL as one of the "B3" cases for plaintiffs
who either opted out of, or were excluded from, the Deepwater
Horizon Medical Benefits Class Action Settlement Agreement.
Plaintiff opted out of the settlement. After the Plaintiff's case
was severed, it was reallocated to this Court. The Plaintiff
asserts claims for general maritime negligence, negligence per se,
and gross negligence against the Defendants because of the oil
spill and its cleanup.
To demonstrate that exposure to crude oil, weathered oil, and
dispersants can cause the symptoms the Plaintiff alleges in his
complaint, he offers the testimony of Dr. Cook, an occupational and
environmental physician. Dr. Cook is the Plaintiff's sole expert
offering an opinion on general causation. In his March 14, 2022
report, Dr. Cook utilizes a general causation approach to determine
if a reported health complaint can be from the result of exposures
sustained in performing oil spill cleanup work.
The BP parties contend that Dr. Cook's expert report should be
excluded on the grounds that that it is unreliable and unhelpful.
They also move for summary judgment, asserting that if Dr. Cook's
general causation opinion is excluded, the Plaintiff is unable to
carry his burden on causation. The Plaintiff opposes both motions,
contending that the Defendants' failure to record quantitative
exposure data during the oil spill response amounts to spoliation,
and seeks the admission of Dr. Cook's report as a sanction. The
Defendants oppose the Plaintiff's motion.
Judge Vance finds that Dr. Cook's failure to identify the level of
exposure to a relevant chemical that can cause the conditions
asserted in the Plaintiff's complaint renders his opinion
unreliable, unhelpful, and incapable of establishing general
causation. Given Dr. Cook's failure to determine the relevant
harmful level of exposure to chemicals to which the Plaintiff was
exposed for his specific conditions, he lacks sufficient facts to
provide a reliable opinion on general causation.
Judge Vance also finds that Dr. Cook's report is unhelpful to the
factfinder for many of the same reasons. He says Dr. Cook's opinion
is unhelpful because of his inability to link any specific chemical
that the Plaintiff was allegedly exposed to, at the level at which
he was exposed, to the health conditions that he purportedly
experiences. Given that Dr. Cook's report does not identify which
specific chemicals the Plaintiff was exposed to, his report is
unhelpful to the factfinder.
In sum, Judge Vance concludes that the Plaintiff, as the party
offering the testimony of Dr. Cook, has failed to meet his burden
of establishing the reliability and relevance of Dr. Cook's report.
Given that Dr. Cook's report is unreliable and fails to provide the
minimal facts necessary to establish general causation in the case,
she grants the Defendants' motion to exclude Dr. Cook's testimony.
The Plaintiff's motion seeks the sanction of admission of Dr.
Cook's report. He asserts that this sanction is appropriate because
BP's decision to not record quantitative exposure data during the
BP Oil Spill response has deprived him of data which would
quantitatively establish his exposure.
Judge Vance finds that the Plaintiff's spoliation motion suffers a
number of deficiencies. First, the Plaintiff's contention that BP's
failure to conduct monitoring amounts to spoliation is based on the
faulty premise that BP was obligated to develop evidence in
anticipation of litigation. Further, the remedy the Plaintiff seeks
-- admission of Dr. Cook's expert opinion despite its numerous
deficiencies -- is unwarranted. Dr. Cook's failure to link any
specific chemicals to the conditions allegedly suffered by the
Plaintiff prevents the admission of Cook's opinion. Judge Vance
thus denies the Plaintiff's motion to admit Dr. Cook's report as a
sanction despite its failure to meet the requirements of Fed. R.
Evid. 702.
Finally, given that the Plaintiff cannot prove a necessary element
of his claims against the Defendants, his claims must be dismissed.
Accordingly, Judge Vance grants the Defendants' motion for summary
judgment.
For the foregoing reasons, Judge Vance grants the BP parties'
motion to exclude the testimony of Dr. Cook; denies the Plaintiff's
motion to admit Dr. Cook's report as a sanction for the Defendants'
alleged spoliation; grants the BP parties' motion for summary
judgment; and dismisses with prejudice the Plaintiff's claims.
A full-text copy of the Court's April 28, 2023 Order & Reasons is
available at https://rb.gy/32w5c from Leagle.com.
BP EXPLORATION: Summary Judgment Entered; Reed's Claims Dismissed
-----------------------------------------------------------------
In the case, ANTONIO J. REED v. BP EXPLORATION & PRODUCTION, INC.,
ET AL., SECTION "R" (2), Civil Action No. 17-4174 (E.D. La.), Judge
Sarah S. Vance of the U.S. District Court for the Eastern District
of Louisiana grants:
a. BP Exploration & Production, Inc., BP America Production
Co., and BP p.l.c.'s motion to exclude the testimony of the
Plaintiff's general causation expert, Dr. Jerald Cook; and
b. the BP parties' motion for summary judgment.
The case arises from the Plaintiff's alleged exposure to toxic
chemicals following the Deepwater Horizon oil spill in the Gulf of
Mexico. He alleges that he was exposed to crude oil and dispersants
from his work as an onshore cleanup worker. The Plaintiff
represents that this exposure has resulted in the following health
problems: headache, nausea, weight loss, heartburn, abdominal pain,
diarrhea, vomiting, hypertension, chronic rhinitis, earache,
fatigue, chills, blurred vision, eye burning, depression, chest
pain, shortness of breath, acne, and welts.
The Plaintiff's case was originally part of the multidistrict
litigation ("MDL") pending before Judge Carl J. Barbier. His case
was severed from the MDL as one of the "B3" cases for plaintiffs
who either opted out of, or were excluded from, the Deepwater
Horizon Medical Benefits Class Action Settlement Agreement. The
Plaintiff opted out of the settlement. After his case was severed,
it was reallocated to this Court. The Plaintiff asserts claims for
general maritime negligence, negligence per se, and gross
negligence against the Defendants because of the oil spill and its
cleanup.
To demonstrate that exposure to crude oil, weathered oil, and
dispersants can cause the symptoms the Plaintiff alleges in his
complaint, he offers the testimony of Dr. Cook, an occupational and
environmental physician. Dr. Cook is the Plaintiff's sole expert
offering an opinion on general causation. In his March 14, 2022
report, Dr. Cook utilizes a general causation approach to determine
if a reported health complaint can be from the result of exposures
sustained in performing oil spill cleanup work.
The BP parties contend that Dr. Cook's expert report should be
excluded on the grounds that that it is unreliable and unhelpful.
They also move for summary judgment, asserting that if Dr. Cook's
general causation opinion is excluded, the Plaintiff is unable to
carry his burden on causation. The Plaintiff opposes both motions,
contending that the Defendants' failure to record quantitative
exposure data during the oil spill response amounts to spoliation,
and seeks the admission of Dr. Cook's report as a sanction. The
Defendants oppose the Plaintiff's motion.
Judge Vance finds that Dr. Cook's failure to identify the level of
exposure to a relevant chemical that can cause the conditions
asserted in the Plaintiff's complaint renders his opinion
unreliable, unhelpful, and incapable of establishing general
causation. Given Dr. Cook's failure to determine the relevant
harmful level of exposure to chemicals to which the Plaintiff was
exposed for his specific conditions, he lacks sufficient facts to
provide a reliable opinion on general causation.
Judge Vance also finds that Dr. Cook's report is unhelpful to the
factfinder for many of the same reasons. She says Dr. Cook's
opinion is unhelpful because of his inability to link any specific
chemical that the Plaintiff was allegedly exposed to, at the level
at which he was exposed, to the health conditions that he
purportedly experiences. Given that Dr. Cook's report does not
identify which specific chemicals the Plaintiff was exposed to, his
report is unhelpful to the factfinder.
In sum, Judge Vance concludes that the Plaintiff, as the party
offering the testimony of Dr. Cook, has failed to meet his burden
of establishing the reliability and relevance of Dr. Cook's report.
Given that Dr. Cook's report is unreliable and fails to provide the
minimal facts necessary to establish general causation in the case,
Judge Vance grants the Defendants' motion to exclude Dr. Cook's
testimony.
The Plaintiff's motion seeks the sanction of admission of Dr.
Cook's report. He asserts that this sanction is appropriate because
BP's decision to not record quantitative exposure data during the
BP Oil Spill response has deprived him of data which would
quantitatively establish his exposure.
Judge Vance holds that the Plaintiff's spoliation motion suffers a
number of deficiencies. First, the Plaintiff's contention that BP's
failure to conduct monitoring amounts to spoliation is based on the
faulty premise that BP was obligated to develop evidence in
anticipation of litigation. Further, the remedy the Plaintiff seeks
-- admission of Dr. Cook's expert opinion despite its numerous
deficiencies -- is unwarranted. Dr. Cook's failure to link any
specific chemicals to the conditions allegedly suffered by the
Plaintiff prevents the admission of Cook's opinion. Judge Vance
thus denies the Plaintiff's motion to admit Dr. Cook's report as a
sanction despite its failure to meet the requirements of Fed. R.
Evid. 702.
Finally, given that the Plaintiff cannot prove a necessary element
of his claims against the Defendants, his claims must be dismissed.
Accordingly, Judge Vance grants the Defendants' motion for summary
judgment.
For the foregoing reasons, Judge Vance grants the BP parties'
motion to exclude the testimony of Dr. Cook; denies the Plaintiff's
motion to admit Dr. Cook's report as a sanction for the Defendants'
alleged spoliation; grants the BP parties' motion for summary
judgment; and dismisses with prejudice the Plaintiff's claims.
A full-text copy of the Court's April 28, 2023 Order & Reasons is
available at https://rb.gy/d1h2w from Leagle.com.
BURNTWOOD TAVERN: Bid to Dismiss Claims Against Minute Men OK'd
---------------------------------------------------------------
In the class action lawsuit captioned as JASON GOEBLE, v. BURNTWOOD
TAVERN HOLDINGS, LLC, ET AL., Case No. 1:22-cv-01733-JG (N.D.
Ohio), the Hon. Judge James S. Gwin entered an order granting the
Defendants' motion to dismiss claims against the Defendant Minute
Men Select and denying dismissal of claims against Burntwood
Defendants.
The Court denies the Plaintiff Goeble's motion to conditionally
certify a collective action, expedite opt-in discovery, and notify
potential opt-in plaintiffs.
Finally, the Court denies as moot the Plaintiff Goeble's motion to
reschedule mediation pending resolution of the motion to dismiss
and conditional-certification motions.
Goeble proposes the following Fair Labor Standards Act (FLSA)
collective action for conditional certification:
"All current and former tipped employees who worked for
Burntwood
at one or more of its restaurant locations in the United States
at
least one week during the three-year period prior to the filing
of
this action to the present."
The Plaintiff Goeble worked from August 2020 through January 2021
as a server for Burntwood Tavern Chagrin Falls. Burntwood Tavern is
a regional bar and restaurant group with 14 locations in Ohio and
Florida.
A copy of the Court's order dated April 26, 2023 is available from
PacerMonitor.com at https://bit.ly/3M35yZ3 at no extra charge.[CC]
CALIFORNIA: Class Cert Bid Hearing in Dunsmore Set for June 29
--------------------------------------------------------------
In the class action lawsuit captioned as Dunsmore v. State of
California, et al., Case No. 3:20-cv-00406 (S.D. Cal., Filed March
2, 2020), the Hon. Judge Anthony J. Battaglia entered an order
setting briefing schedule regarding motion for leave to allow the
non-electronic filing of exhibits, motion for preliminary
injunction and provisional class certification, motion to file
documents under seal:
-- Responses due by: May 10, 2023
-- Replies due by: May 17, 2023
-- Motion Hearing set for: June 29, 2023
-- Sur-replies will not be accepted.
The nature of suit states Prisoner Petitions -- Habeas Corpus --
Civil Rights.
California, a western U.S. state, stretches from the Mexican border
along the Pacific for nearly 900 miles.[CC]
CALIFORNIA: Thomas' Bid to File Class Action Civil Suit Denied
--------------------------------------------------------------
In the case, RICKY L. THOMAS, et al., Plaintiffs v. SHIRLEY, et
al., Defendants, Case No. 1:23-cv-00470-BAM (PC) (E.D. Cal.),
Magistrate Judge Barbara A. McAuliffe of the U.S. District Court
for the Eastern District of California denies Thomas' motion to
file a class action civil suit without prejudice.
Thomas is a state prisoner proceeding pro se and in forma pauperis
in this civil rights action pursuant to 42 U.S.C. Section 1983. The
original action was filed together with 17 other inmates and was
severed into individual proceedings on April 5, 2023. The Plaintiff
was ordered to proceed as the sole Plaintiff in this case and to
file a signed complaint or a notice of voluntary dismissal.
On April 25, 2023, Thomas filed a signed first amended complaint,
together with a motion to file a class action. In his motion, he
argues that the initial case was intended to be filed as a class
action civil complaint, as is his FAC. He argues that the -- now
former -- Plaintiffs in this action have demonstrated fulfillment
of the requirements of Federal Rule of Civil Procedure 23(a), and
requests that the cases not be severed, and the Court allow the
filing of a class action. He further contends that if the Court
severs the plaintiffs, they will be prejudiced because they cannot
proceed by way of a class action, they will be prejudiced by the
requirement that they exhaust administrative remedies under the
PLRA and will then be a victim of another federal civil rights
violation.
Judge McAuliffe denies the Plaintiff's request. She says the
Plaintiff is not an attorney and is proceeding without counsel. It
is well-established that a layperson cannot ordinarily represent
the interests of a class. A non-attorney proceeding pro se may
bring his own claims to court, but may not represent others.
Therefore, it is inappropriate for the Plaintiff to proceed as
class counsel, and Judge McAuliffe denies the request without
prejudice.
Finally, Judge McAuliffe notes that it appears that the motion is
signed by an individual other than the Plaintiff. While the Court
has addressed the merits of the motion as a one-time exception, she
advises the Plaintiff that because he is proceeding pro se (without
an attorney), both the Federal Rules of Civil Procedure and the
Court's Local Rules require that all filed pleadings, motions, and
papers be signed by the party personally if the party is
unrepresented.
Therefore, all future filings submitted to the Court must include
the Plaintiff's own signature, as well as the date the filing was
submitted to prison authorities for mailing. Future filings that do
not include the Plaintiff's own signature may be rejected as
improperly filed.
Accordingly, Judge McAuliffe denies the Plaintiff's motion to file
a class action civil suit without prejudice. She says the
Plaintiff's FAC will be screened in due course.
A full-text copy of the Court's April 28, 2023 Order is available
at https://rb.gy/f1h7s from Leagle.com.
CAVALRY PORTFOLIO: Santiago Seeks to Certify Class Action
---------------------------------------------------------
In the class action lawsuit captioned as NORMA I. SANTIAGO, on
behalf of herself and those similarly situated, v. CAVALRY
PORTFOLIO SERVICES, LLC; CAVALRY SPV I, LLC; JOHN DOES 1 to 10,
Case No. 2:15-cv-08332-EP-MAH (D.N.J.), the Plaintiff asks the
Court to enter an order certifying this case to proceed as a class
action pursuant to Fed. R. Civ. P. 23.
Cavalry Portfolio is a debt collection agency.
A copy of the Plaintiff's motion dated April 28, 2023 is available
from PacerMonitor.com at https://bit.ly/44sGfXh at no extra
charge.[CC]
The Plaintiff is represented by:
Yongmoon Kim, Esq.
Philip D. Stern, Esq.
KIM LAW FIRM LLC
411 Hackensack Avenue, Suite 701
Hackensack, NJ 07601
Telephone: (201) 273-7117
Facsimile: (201) 273-7117
- and -
Andrew R. Wolf, Esq.
THE WOLF LAW FIRM, LLC
1520 U.S. Highway 130 – Suite 101
North Brunswick, NJ 08902
Telephone: (732) 545-7900
Facsimile: (732) 545-1030
CBA SITE SERVICES: Brunson Files Suit in Cal. Super. Ct.
--------------------------------------------------------
A class action lawsuit has been filed against CBA Site Services,
Inc., et al. The case is styled as Raymond G. Brunson, on behalf of
all others similarly situated v. CBA Site Services, Inc., et al.,
Case No. 23CV000817 (Cal. Super. Ct., Sacramento Cty., May 1,
2023).
The case type is stated as "Other Employment Complaint Case."
CBA Site Services, Inc. provides professional, technical & civil
services fundamental to network deployment, infrastructure
maintenance, etc.[BN]
CEREBRAL INC: Hays Suit Removed to C.D. California
--------------------------------------------------
The case captioned as David Hays and David Liu, individually and on
behalf of all others similarly situated v. CEREBRAL, INC., Case No.
23CV029681 was removed from the Superior Court of California,
County of Alameda, to the United States District Court for the
Northern District of California on May 1, 2023, and assigned Case
No. 3:23-cv-02128-SK.
The Plaintiffs' Complaint asserts causes of action for Violation of
the California Invasion of Privacy Act ("CIPA"), Violation of CIPA,
Violation of California Civil Code, and Violation of the
Confidentiality of Medical Information Act (the "CMIA") against
Defendant in connection with its alleged unauthorized disclosure of
the Plaintiffs' and the putative class members' personal health
information ("PHI") and/or personal identifying information ("PII")
to third parties, which was discovered on January 3, 2023 (the
"Data Incident").[BN]
The Defendants are represented by:
Teresa C. Chow, Esq.
Alexis Cruz, Esq.
BAKER & HOSTETLER LLP
11601 Wilshire Boulevard, Suite 1400
Los Angeles, CA 90025-0509
Phone: 310.820.8800
Facsimile: 310.820.8859
Email: tchow@bakerlaw.com
acruz@bakerlaw.com
CITADEL SALISBURY: Hooker Bid for Class Certification Tossed
------------------------------------------------------------
In the class action lawsuit captioned as Hooker, et al., v. The
Citadel Salisbury LLC, et al., Case No. 1:21-cv-00384 (M.D.N.C.),
the Hon. Judge Joe L. Webster entered an order denying motion for
class certification.
-- The time already allotted for discovery prior to the entry of
order granting limited stay.
The proposed dates in the amended joint Rule 26(f) Report should
take into consideration.
The nature of suit states Contract -- Other Contract.
COCA-COLA BOTTLERS': Anderson's $3.3M Class Deal Wins Prelim. Nod
-----------------------------------------------------------------
In the case, KIMARIO ANDERSON and WILLIAM GRIMMETT, individually
and on behalf of the Coca-Cola Bottlers' Association 401(k)
Retirement Savings Plan and all others similarly situated,
Plaintiffs v. COCA-COLA BOTTLERS' ASSOCATION, et al., Defendants,
Case No. 21-2054-JWL (D. Kan.), Judge John W. Lungstrum of the U.S.
District Court for the District of Kansas grants the parties'
motion for preliminary approval of their class action settlement,
which would resolve all claims in the case, and for related
relief.
The action was brought under the Employee Retirement Income
Security Act of 1974 (ERISA). Coca-Cola Bottlers' Association
("CCBA"), an association of independent companies that bottle and
distribute Coca-Cola products, offers various employee benefit
programs to its members, including a 401(k) retirement plan. The
Plaintiffs were employed by a member of CCBA and were participants
in the Plan. The Plan was administered on behalf of CCBA by
defendant The Coca-Cola Bottlers' Association 401(k) Savings Plan
Benefit Committee and the Individual Defendants were members of the
Committee at relevant times.
In the action, the Plaintiffs have asserted claims under Section
404(a) of ERISA, 29 U.S.C. Section 1104(a) -- on their own behalf,
on behalf of the Plan, and on behalf of a putative class of
participants and beneficiaries of the Plan since Feb. 1, 2015 -- by
which they allege breaches of fiduciary duties of prudence and
loyalty. On March 30, 2022, the Court dismissed claims relating to
one fund offered by the Plan, certain claims relating to
recordkeeping fees, and claims against the Individual Defendants
for co-fiduciary liability.
The parties recently engaged in mediation and reached an agreement
to settle the claims in the case, including the class claims. Under
that settlement, the Defendants would pay $3.3 million into a
settlement fund, and the net amount (after deductions for
administrative expenses, attorney fee and expense awards, and
service awards) would be distributed to the class members pro rata,
based on their level of investment in the Plan over the class
period (Feb. 1, 2015, through the date of the Order).
Current participants in the Plan would have their accounts credited
with their shares, without the need for the submission of claims;
and former participants could submit a claim form electing to have
their shares rolled into other accounts or plan or to receive
payment by check. The agreement provides for a future motion by the
Plaintiffs' counsel for an award of attorney fees up to one-third
of the gross settlement amount, and for a future motion for service
awards in maximum amounts of $20,000 for one Plaintiff and $10,000
for the other.
The parties now seek preliminary approval of that settlement and
related relief. By the present motion, they seek only preliminary
approval of their settlement, in anticipation of a motion for final
approval after the settlement class has been certified, the class
notice has been disseminated, and the class members have been given
an opportunity to object.
Judge Lungstrum concludes that the standards for preliminary
approval of the settlement have been met in the case. He concludes
that the settlement falls within the range of settlements that
could be approved. He therefore grants preliminary approval of the
parties' settlement, including the proposed plan of allocation and
the proposed distribution plan. He also approves the appointment of
Analytics Consulting, LLC as the settlement administrator, as
requested by the parties.
By the present motion, the Plaintiffs' counsel does not seek an
award of fees and expenses; rather, it intends to file in the
future, prior to the deadline for class members to object, a motion
for attorney fees and for service awards for the Plaintiff class
representatives. In conjunction with the motion for final
settlement approval, Judge Lungstrum will consider the propriety of
any such awards. At this stage, he considers the maximum awards
allowed by the settlement agreement only for the purpose of
determining whether to grant preliminary approval to the settlement
and he has concluded that the settlement falls within the range of
acceptable settlements even if the maximum awards were granted.
Next, Judge Lungstrum concludes that certification of a settlement
class would be appropriate. Therefore, he conditionally certifies
the proposed settlement class for the purposes requested, including
so that notice to the class may be authorized. He also appoints the
Plaintiffs' counsel as the class counsel as requested and appoints
the Individual Plaintiffs as the class representatives.
As to the Class Notice, the parties propose to provide notice to
the class by direct mail. Judge Lungstrum concludes that such
notice is reasonable and practicable. He orders the parties to
include on the settlement website the authorized class notice and
any materials submitted to the Court for its consideration,
including specifically any motion for fees and service awards and
the report obtained by defendants from an independent fiduciary
concerning the settlement. Finally, the Plan recordkeeper has
indicated that it is feasible to give notice on the online account
portals for active participants who have signed up for such access.
Such additional notice must be given in that manner.
In addition, with respect to the content of the class notice to be
mailed to the class members, Judge Lungstrum approves the revised
notice forms submitted by the parties after the Court's recent
telephone conference.
Finally, Judge Lungstrum sets the following schedule and deadlines,
which have been decided in consultation with the parties, and which
will be included in the class notice:
a. Any motion for an award of attorney fees and expenses or
for service awards for class representatives will be filed by July
17, 2023.
b. Any objections to the settlement agreement or to any
request for awards will be filed by Aug. 16, 2023.
Any responses to objections to the settlement and any motion
for final settlement approval will be filed by Sept. 1, 2023.
Judge Lungstrum sets the final settlement approval hearing for
Sept. 15, 2023, at 1:30 p.m. (CST), in Courtroom 440 in the federal
courthouse in Kansas City, Kansas. He will forthwith issue an
additional order, which has been proposed by the parties and
modified by the Court, and which contains additional details
concerning the preliminary approval of the settlement.
The parties' motion for preliminary approval of their settlement
agreement and for other relief is granted as more fully set forth.
A full-text copy of the Court's April 28, 2023 Memorandum & Order
is available at https://rb.gy/jm3st from Leagle.com.
COCA-COLA BOTTLERS: Class Settlement in Anderson Gets Initial Nod
-----------------------------------------------------------------
In the class action lawsuit captioned as KIMARIO ANDERSON and
WILLIAM GRIMMETT, individually and on behalf of the Coca-Cola
Bottlers' Association 401(k) Retirement Savings Plan and all others
similarly situated, v. COCA-COLA BOTTLERS' ASSOCATION, et al., Case
No. 2:21-cv-02054-JWL (D. Kan.), the Hon. Judge John W. Lungstrum
entered an order preliminarily approving the settlement;
conditionally certifying a settlement class; appointing class
counsel, class representatives, and a settlement administrator;
authorizing notice to the class; and setting a schedule for further
proceedings, including a final settlement approval hearing.
This action is brought under the Employee Retirement Income
Security Act of 1974 (ERISA)
The Defendant Coca-Cola Bottlers' Association (CCBA), an
association of independent companies that bottle and distribute
Coca-Cola products, offers various employee benefit programs to its
members, including a 401(k) retirement plan.
The Plaintiffs were employed by a member of CCBA and were
participants in the Plan. The Plan was administered on behalf of
CCBA by defendant The Coca-Cola Bottlers' Association 401(k)
Savings Plan Benefit Committee, and the individual defendants were
members of the Committee at relevant times.
In this action, plaintiffs have asserted claims under Section
404(a) of ERISA, 29 U.S.C. section 1104(a) -- on their own behalf,
on behalf of the Plan, and on behalf of a putative class of
participants and beneficiaries of the Plan since February 1, 2015
-- by which they allege breaches of fiduciary duties of prudence
and loyalty. On March 30, 2022, the Court dismissed claims relating
to one fund offered by the Plan, certain claims relating to
recordkeeping fees, and claims against the individual defendants
for co-fiduciary liability.
The parties recently engaged in mediation and reached an agreement
to settle the claims in this case, including the class claims.
Under that settlement, defendants would pay $3,300,000 into a
settlement fund, and the net amount (after deductions for
administrative expenses, attorney fee and expense awards, and
service awards) would be distributed to class members pro rata,
based on their level of investment in the Plan over the class
period (February 1, 2015, through the date of this order). Current
participants in the Plan would have their accounts credited with
their shares, without the need for the submission of claims; and
former participants could submit a claim form electing to have
their shares rolled into other accounts or plan or to receive
payment by check.
The agreement provides for a future motion by plaintiffs' counsel
for an award of attorney fees up to one-third of the gross
settlement amount, and for a future motion for service awards in
maximum amounts of $20,000 for one plaintiff and $10,000 for the
other. The parties now seek preliminary approval of that settlement
and related relief.
The Court sets the following schedule and deadlines, which have
been decided in consultation with the parties, and which shall be
included in the class notice:
-- Any motion for an award of attorney fees and expenses or for
service awards for class representatives shall be filed on or
before July 17, 2023.
-- Any objections to the settlement agreement or to any request
for
awards shall be filed on or before August 16, 2023.
-- Any responses to objections to the settlement and any motion
for
final settlement approval shall be filed on or before
September
1, 2023.
-- The Court hereby sets the final settlement approval hearing
for September 15, 2023, at 1:30 p.m. CST, in Courtroom 440 in the
federal courthouse in Kansas City, Kansas.
Coca-Cola Bottlers' Association operates as a membership program
for domestic bottlers of Coca Cola products.
A copy of the Court's order dated April 28, 2023 is available from
PacerMonitor.com at https://bit.ly/3nnJDCi at no extra charge.[CC]
COMMUNITY HEALTH: Hearing on Initial OK of Settlement Not Set
-------------------------------------------------------------
Community Health Systems Inc. disclosed in its Form 10-Q Report for
the quarterly period ending March 31, 2023 filed with the
Securities and Exchange Commission on May 2, 2023, that the United
States District Court for the Middle District of Tennessee has not
set a hearing for the Padilla securities class suit settlement
preliminary approval.
Caleb Padilla, individually and on behalf of all others similarly
situated v Community Health Systems, Inc., Wayne T. Smith, Larry
Cash, and Thomas J. Aaron.
This purported federal securities class action was filed in the
United States District Court for the Middle District of Tennessee
on May 30, 2019. It seeks class certification on behalf of
purchasers of our common stock between February 20, 2017 and
February 27, 2018 and alleges misleading statements resulted in
artificially inflated prices for our common stock.
On November 20, 2019, the District Court appointed Arun
Bhattacharya and Michael Gaviria as lead plaintiffs in the case.
The lead plaintiffs filed a consolidated class complaint on January
21, 2020. The Company filed a motion to dismiss the consolidated
class complaint on March 23, 2020, and the District Court denied
that motion on August 17, 2022.
The Company had reached a tentative settlement of this matter,
which is subject to the Court's approval.
The hearing to determine the Court's preliminary approval of the
settlement has not yet been set.
Community Health Systems -- http://www.chs.net/-- is one of the
nation's leading healthcare providers.[BN]
CONSOL ENERGY INC: Continues to Defend ERISA Class Suit in Virginia
-------------------------------------------------------------------
Consol 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 May 2, 2023, that the Company continues
to defend the consolidated ERISA class suit in the U.S. District
Court for the Southern District of West Virginia.
A class action lawsuit was filed on August 23, 2017 on behalf of
two nonunion retired coal miners against CCC, COK, CONSOL Buchanan
Mining Co., LLC and Kurt Salvatori, the Company's Chief
Administrative Officer, in the U.S. District Court for the Southern
District of West Virginia alleging ERISA violations in the
termination of retiree health care benefits.
Filed by the same lawyers who filed the Fitzwater litigation, and
raising nearly identical claims, the Plaintiffs contend they relied
to their detriment on oral promises of "lifetime health benefits"
allegedly made by various members of management during Plaintiffs'
employment and that they were not provided with copies of Summary
Plan Documents clearly reserving to the Company the right to modify
or terminate the Retiree Health and Welfare Plan.
Plaintiffs request that retiree health benefits be reinstated for
them and their dependents and seek to represent a class of all
nonunion retirees of any subsidiary of the Company's former parent
that operated or employed individuals in McDowell or Mercer
Counties, West Virginia, or Buchanan or Tazewell Counties, Virginia
whose retiree welfare benefits were terminated.
On December 1, 2017, the trial court judge in Fitzwater signed an
order to consolidate Fitzwater with Casey.
The Casey complaint was amended on March 1, 2018 to add new
plaintiffs, add defendant CONSOL Pennsylvania Coal Company, LLC and
eliminate defendant CONSOL Buchanan Mining Co., LLC in an attempt
to expand the class of retirees.
On October 15, 2019, Plaintiffs' supplemental motion for class
certification was denied on all counts.
On July 15, 2020, Plaintiffs filed an interlocutory appeal with the
Fourth Circuit Court of Appeals on the Order denying class
certification.
The Fourth Circuit denied Plaintiffs' appeal on August 14, 2020.
On October 1, 2020, the District Court entered a pretrial order
setting the trial date, which was held in February 2021.
No ruling has been issued by the judge.
The Company believes it has a meritorious defense and intends to
vigorously defend this suit.
CONSOL Energy Inc. is into coal mining based in Pennsylvania.
COSAN CONSTRUCTION: Rule 23 Class Action Certification Sought
-------------------------------------------------------------
In the class action lawsuit captioned as LAURO SANCHEZ, JUAN
EUSEBIO SANTIAGO, and GUSTAVO MENDEZ, on behalf of themselves and
all others similarly situated, v. COSAN CONSTRUCTION CORP., AMCG
INC., TRADE SOLUTIONS INC., TERENCE JAMES FERGUSON, and AARON KING,
Case No. 1:21-cv-06744-JLR-SLC (S.D.N.Y.), the Plaintiffs ask the
Court to enter an order granting their motion its entirety by
so-ordering and entering the proposed order for class action
certification under Rule 23 of the Federal Rules of Civil
Procedure.
The Plaintiffs seek to recover unpaid overtime wages and statutory
damages on behalf of themselves and all Construction Workers who
worked for the Defendants' construction companies since December
25, 2014. Throughout this period, the Defendants failed to pay
Construction Workers the correct overtime wages due to them for
each hour worked over forty per workweek. the Defendants also
failed to provide Construction Workers with wage notices when hired
and with accurate wage statements at the end of each pay period, in
violation of the NYLL and the WTPA.
The Plaintiffs seek to certify a Class under Rule 23 to recover
damages arising out of the Defendants' NYLL and WTPA violations.
On June 13, 2022, the Plaintiffs Gustavo Mendez, Lauro Sanchez, and
Juan Eusebio Santiago filed the Amended Complaint, which reasserts
their claims under the FLSA, NYLL, and WTPA against all the
Defendants. By November 9, 2022, forty-three more Construction
Workers had joined this Action as opt-in plaintiffs.
Cosan is a construction company.
A copy of the Plaintiffs' motion dated April 28, 2023 is available
from PacerMonitor.com at https://bit.ly/3LTxsq8 at no extra
charge.[CC]
The Plaintiffs are represented by:
Louis Pechman, Esq.
Gianfranco J. Cuadra, Esq.
Christian Mercado, Esq.
PECHMAN LAW GROUP PLLC
488 Madison Avenue
New York, NY 10022
Telephone: (212) 583-9500
E-mail: pechman@pechmanlaw.com
cuadra@pechmanlaw.com
mercado@pechmanlaw.com
DEVA CONCEPTS: Robaina Can't File Exclusion From Adams Class Deal
-----------------------------------------------------------------
In the case, KATHERINE ROBAINA, Movant-Appellant v. DEVA CONCEPTS,
LLP, DBA DEVACURL, Defendant-Appellee, Case No. 22-1142 (2d Cir.),
the U.S. Court of Appeals for the Second Circuit affirms the
judgment of the district court denying Robaina's motion for leave
to file for an exclusion from a class action settlement after she
missed the opt-out deadline.
Movant-Appellant Robaina appeals from an order entered by the
district court denying her motion for leave to file for an
exclusion from a class action settlement after she missed the
opt-out deadline. On appeal, she argues that the district court
misapplied the governing legal standard and thus abused its
discretion when it denied her motion.
Robaina is one of 117 claimants in Adams v. Deva Concepts, LLC,
20-cv-9717 (GHW) (S.D.N.Y.), a personal injury action. While Adams
was pending, the plaintiffs in 13 other consolidated class actions
arrived at a settlement agreement with the same defendants, which
was preliminarily approved in July 2021. On Sept. 20, 2021, Robaina
signed a letter requesting exclusion from the class action
settlement in order to pursue her individual claim and timely
delivered it to her counsel, Amy Davis, by email on Sept. 26, 2021.
The deadline for submitting a claim in the class action settlement
was Oct. 22, 2021, and while Davis submitted exclusion letters for
108 other plaintiffs in the class by that date, she accidentally
failed to submit Robaina's letter. Because Robaina believed that
she had successfully opted out of the class, she did not file a
claim as part of the class action settlement.
The district court entered an order finally approving the
settlement on Jan. 3, 2022. On Jan. 19, 2022, Davis saw the final
opt-out list and realized that Robaina had not been excluded from
the settlement. On Feb. 3, 2022, with Davis still as counsel,
Robaina filed a motion for leave to file for untimely exclusion
from the class action settlement.
On April 25, 2022, the district court denied Robaina's motion for
leave to be excluded from the settlement, reasoning that Robaina
did not meet the threshold for "excusable neglect" -- the standard
required under Federal Rule of Civil Procedure 6(b)(1)(B). In
reaching this conclusion, it applied the four factors to be
considered in evaluating an assertion of excusable neglect as
articulated by the Supreme Court in Pioneer Inv. Servs. Co. v.
Brunswick Assocs. Ltd. P'ship, 507 U.S. 380 (1993). Those factors
are: (1) the danger of prejudice to the nonmoving party, (2) the
length of the delay and its potential impact on judicial
proceedings, (3) the reason for the delay, including whether it was
within the reasonable control of the movant, and (4) whether the
movant acted in good faith. Pioneer also held that attorney mistake
seldom meets this standard, as clients must be held accountable for
the acts and omissions of their attorneys.
The district court emphasized the third Pioneer factor -- the
reason for the delay -- and found that Robaina's counsel's mistake
presented an insufficient basis to grant relief. While it
acknowledged that the other three Pioneer factors were nominally
more favorable to Robaina, the court found that they were
insufficient to show excusable neglect.
On appeal, Robaina argues that the district court abused its
discretion for two related reasons. First, she asserts that the
district court misread the caselaw and that courts should accept an
untimely request for exclusion when the claimant exercised
diligence and good faith in making the request, but delay was
inadvertent or otherwise the result of mistake or carelessness,
particularly when the delay is short and caused by events outside
of the claimant's control. Second, she argues that the district
court abused its discretion by "giving more weight to the third
Pioneer factor while discounting the remaining three factors.
While it is unfortunate that Robaina suffered the loss of her
opt-out right due to her counsel's mistake, the Second Circuit
concludes that she provides no legal basis under its precedent to
find that the district court abused its discretion or misapplied
the law when it denied her motion for leave to file for an
exclusion from the class action settlement. It has considered
Robaina's remaining arguments and finds them to be without merit.
Accordingly, the Second Circuit affirms the judgment of the
district court.
A full-text copy of the Court's April 28, 2023 Summary Order is
available at https://rb.gy/hosus from Leagle.com.
AMY E. DAVIS, Law Center of Amy E. Davis, LLC, Dallas, Texas, for
the Movant-Appellant.
JACLYN DEMAIS -- demaisj@gtlaw.com -- (Keith E. Smith --
smithkei@gtlaw.com -- and Katherine M. Clemente --
Katherine.Clemente@gtlaw.com -- on the brief), Greenberg Traurig
LLP, Florham Park, New Jersey, for the Defendant-Appellee.
DOWNER EDI: Faces 2nd Suit Over Breach of Contract Disclosures
--------------------------------------------------------------
Roushni Nair in Bengaluru of Reuters reports that Australia's
Downer EDI (DOW.AX) said on May 5, 2023 it was served with a second
class action lawsuit by certain shareholders alleging breach of
disclosures regarding a maintenance contract undertaken by the
company's segment in July 2019.
The class action, filed on behalf of shareholders who purchased
Downer shares between July 2019 and February 2023, comes after the
Australian contracting firm last December admitted to overstating
its pre-tax earnings due to accounting irregularities.
As a consequence of accounting discrepancies, Downer had revised
down its FY23 underlying net profit after tax attributable forecast
to between A$210 million ($140.60 million) and A$230 million from
prior expectations of 10% to 20% growth on FY22's A$225.3 million.
Earlier last month, a shareholders' lawsuit was filed against
Downer, claiming it breached certain disclosure obligations under
listing rules while also making misleading statements over its
financial performance.
Downer shares have lost 24% since the company disclosed the
irregularities and its forecast downgrade on Dec. 8, as of last
closing value.
The Sydney-based company has been reeling under extreme regulatory
scrutiny, which even led its chairman and finance chief to step
down earlier this year.
Downer is already sidelined by New South Wales' corruption
regulators stating that employees dishonestly benefited from the
payment or application of public funds for their own private
advantage. [GN]
ENOVIX CORP: Court Consolidates Twitchell & Rosin Securities Suits
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In the case, MAURICE L. TWITCHELL, et al., Plaintiffs v. ENOVIX
CORPORATION, et al., Defendants, Case No. 23-cv-00071-SI (N.D.
Cal.), Judge Susan Illston of the U.S. District Court for the
Northern District of California:
a. grants the motions to consolidate;
b. grants the motions of the Discovery Funds and Gary Kung,
appointing them as Co-Lead Plaintiffs (Dkt. Nos. 7, 17 in
Case No. 23-cv-00071-SI; Dkt. No. 6 in
Case No. 23-cv-00372-SI);
c. appoints Rolnick Kramer Sadighi LLP and The Rosen Law Firm,
P.A., as the Co-Lead Counsel, and Sawyer & Labar LLP as the
Liaison Counsel; and
d. denies the remaining motions for appointment of lead
plaintiff and lead counsel.
On Jan. 6 and 25, 2023, the Plaintiffs filed two class action
lawsuits for violation of the federal securities laws against
Defendants Enovix, Harrold Rust, Steffen Pietzke, Cameron Dales,
and Thurman Rodgers -- Twitchell v. Enovix Corp., No.
23-cv-00071-SI (N.D. Cal. Jan. 6, 2023) and Rosin v. Enovix Corp.,
No. 23-cv-00372-SI (N.D. Cal. Jan. 25. 2023). The Plaintiffs allege
causes of action under Sections 10(b) and 20(a) of the Securities
Exchange Act of 1934, 15 U.S.C. Sections 78j(b) and 78t(a), and
Rule 10b-5 promulgated thereunder by the U.S. Securities and
Exchange Commission, 17 C.F.R. Section 240.10b-5. The class actions
are brought on behalf of persons and entities that purchased or
otherwise acquired Enovix common stock (or Rodgers Silicon Valley
Acquisition Corp. ("RSVAC") common stock prior to July 15, 2021)
between Feb. 22, 2021, and Jan. 3, 2023, inclusive.
According to the complaints, Enovix purports to design, develop,
and manufacture silicon-anode lithium-ion batteries using
proprietary 3D cell architecture, which the Company claims allow
its batteries to achieve higher energy density. Since launching in
2007, the Company has focused on developing and commercializing its
batteries. It did not generate any revenue from its products until
the second quarter of 2022.
On Feb. 22, 2021, Enovix announced its plan to become a publicly
traded company, setting an 'ambitious goal' to both develop its own
U.S.-based manufacturing line and to begin delivering products to
customers (thereby recognizing its first product revenue) by the
second quarter of 2022. On July 15, 2021, it became a publicly
traded company. Rather than go public through a traditional initial
public offering, Enovix merged with a special purpose acquisition
company or "SPAC," a public shell corporation with no business of
its own other than to acquire a private company. On July 14, 2021,
it was officially acquired by RSVAC, which then changed its name to
Enovix Corporation. As a result of this 'de-SPAC' transaction,
RSVAC's publicly traded shares therefore became shares of Enovix
when trading opened on Nasdaq on July 15, 2021.
On July 14, 2021, the company announced in a press release that the
gross cash proceeds raised through the de-SPAC merger would allow
Enovix to build out its first two production facilities to support
demand from blue chip customers in the global mobile computing
market while continuing to develop cells for Electric Vehicles
(EVs). The Plaintiffs allege that throughout the class period, the
Defendants made false and/or misleading statements, as well as
failed to disclose material adverse facts about Enovix's revenues
and ability to manufacture its proprietary battery technology.
On Nov. 1, 2022, Enovix announced that for the third quarter of
2022 it realized just $8,000 in revenue and that it anticipated
achieving lower overall output from its "Fab-1" facility in 2023.
On this news, Enovix fell from a close of $18.87 per share on
October 31, 2022, to $10.53 per share by the close of trading on
Nov. 2, 2022, a 44% decline. On Nov. 7, 2023, Enovix announced that
Rodgers would become Executive Chairman. On Dec. 29, 2022, Rust
departed as CEO of Enovix.
On Jan. 3, 2023, Rodgers held a special presentation for investors,
in which he revealed that the Company's second production facility
and Gen2 lines would be delayed by several additional months
because of the equipment failures experienced in the Fab-1 lines.
On this news, Enovix's share price dropped 41% from a close of
$12.12 per share on Jan. 3, 2022 to a close of $7.15 on Jan. 4,
2022.
Now before the Court are unopposed motions to consolidate the two
related cases and three contested motions for appointment of lead
plaintiff filed by: Discovery Global Opportunity Master Fund Ltd.
and Discovery Nymeria Master Fund, Ltd. (collectively, the
"Discovery Funds"); Gary Kung; and Dale M. Wagner. The competing
motions for lead plaintiff also seek appointment of lead counsel.
Five additional motions to consolidate and for appointment of lead
plaintiff and lead counsel were filed, but those movants have since
withdrawn their motions or have filed notices of non-opposition
because other movants appear to have the larger financial interest
in the litigation.
The matter came on for hearing on April 25, 2023. Following the
hearing, the Court ordered the Discovery Funds to file a
supplemental declaration, which they did on April 26, 2023.
First, Judge Illston finds that the related cases allege the same
causes of action against the same Defendants, arising out of the
Nov. 1, 2022 and Jan. 3, 2023 disclosures. She finds that
consolidation is appropriate, and pursuant to Federal Rule of Civil
Procedure 42, she consolidates the captioned related actions for
all purposes into one action. These actions will be referred to as
the "Consolidated Action." This order will apply to the
Consolidated Action and to each case that is subsequently filed in
the Court that relates to the same subject matter as in the
Consolidated Action.
Every pleading in the Consolidated Action, and any related action
that is consolidated with the Consolidated Action, will bear the
following caption: UNITED STATES DISTRICT COURT NORTHERN DISTRICT
OF CALIFORNIA IN RE ENOVIX CORPORATION Case No. 23-cv-00071-SI
SECURITIES LITIGATION CLASS ACTION THIS DOCUMENT RELATES TO: [Title
of Document]
When the document being filed pertains to all actions, the phrase
"All Actions" will appear immediately after the phrase "This
Document Relates To:". When the document applies to some, but not
all, of the actions, the document will list, immediately after the
phrase "This Document Relates To:", the docket number for each
individual action to which the document applies, along with the
name of the first-listed plaintiff in said action.
A Master Docket and Master File will be established for the
Consolidated Action, and it will be No. 3:23-cv-00071-SI. All
orders, pleadings, motions, and other documents shall, when filed
and docketed in the Master File, be deemed filed and docketed in
each individual case to the extent applicable. When an order,
pleading, motion, or document is filed with a caption indicating
that it is applicable to fewer than all individual actions in the
Consolidated Action, the clerk will file such pleadings in the
Master File and note such filing in the Master Docket and in the
docket of each action referenced.
The parties will file a Notice of Related Cases pursuant to Civil
L.R. 3-12 whenever a case that should be consolidated into this
action is filed in, or transferred to, this District. If the Court
determines that the case is related, the Clerk shall: place a copy
of the Order in the separate file for such action; serve on the
Plaintiff's counsel in the new case a copy of the Order; direct
that this Order be served upon defendants in the new case; and make
the appropriate entry in the Master Docket.
Next, Judge Illston finds that the challenges Kung and Wagner bring
regarding the Discovery Funds' typicality are insufficient to rebut
the presumption that the Discovery Funds should be appointed lead
plaintiff. Accordingly, she grants the Discovery Funds' motion for
appointment as lead plaintiff.
Nevertheless, as did the district court in Christian v. BT Group
PLC, Judge Illston finds it would be prudent to appoint a co-lead
plaintiff who held Enovix stock through the second disclosure. Gary
Kung is the next in line for consideration as lead plaintiff, as
Kung has the next-largest financial stake in the litigation between
the remaining movants and otherwise meets the adequacy and
typicality requirements of Rule 23. Accordingly, Judge Illston
appoints as Co-Lead Plaintiff Gary Kung, who has the next highest
financial losses and who otherwise meets the Rule 23 requirements
of typicality and adequacy.
Finally, Judge Illston appoints Rolnick Kramer Sadighi LLP and The
Rosen Law Firm, P.A. as Co-Lead Counsel, and Sawyer & Labar LLP as
Liaison Counsel. The Co-Lead Counsel is to avoid duplicative or
unproductive activities. It will have the authority to speak for
all Lead Plaintiffs and all Class members in matters regarding the
litigation, including, but not limited to, pretrial proceedings,
motion practice, trial, and settlement.
No motion, request for discovery, or other pretrial proceedings
will be initiated or filed by any Plaintiffs without the approval
of Co-Lead Plaintiffs and Co-Lead Counsel, to prevent duplicative
pleadings or discovery by the Plaintiffs. No settlement
negotiations will be conducted without the approval of Co-Lead
Plaintiffs and Co-Lead Counsel. The counsel in any related action
that is consolidated with the Consolidated Action will be bound by
the organization of the Plaintiffs' counsel. The Co-Lead Counsel
will be the contact between the Plaintiffs' counsel and will direct
and coordinate the activities of the Plaintiffs' counsel.
For the foregoing reasons, Judge Illston grants the motions to
consolidate. She grants the motions of the Discovery Funds and Gary
Kung, appointing them as Co-Lead Plaintiffs. She further appoints
Rolnick Kramer Sadighi LLP and The Rosen Law Firm, P.A., as Co-Lead
Counsel, and Sawyer & Labar LLP as Liaison Counsel. She denies the
remaining motions for appointment of lead plaintiff and lead
counsel.
A full-text copy of the Court's April 28, 2023 Order is available
at https://rb.gy/nwysb from Leagle.com.
EPIC LANDSCAPE: Conditional Class Certification OK'd in Gomez Suit
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In the case, JOSE GONZALEZ GOMEZ, et al., on behalf of themselves
and others similarly situated, Plaintiffs v. EPIC LANDSCAPE
PRODUCTIONS, L.C., EPIC LANDSCAPE PROUCTIONS, INC., JOHN CONSTANT,
and MARTY SILER, Defendants, Case No. 2:22-CV-02198-JAR-ADM (D.
Kan.), Judge Julie A. Robinson of the U.S. District Court for the
District of Kansas grants the Plaintiffs' motion to conditionally
certify a collective action but limits the time period in the class
definition to three years.
The Plaintiffs bring the putative class and collective action under
the Fair Labor Standards Act ("FLSA"), alleging that Defendants
Epic Landscape Productions, L.C., ("Epic LC"), Epic Landscape
Productions, Inc., ("Epic Inc."), John Constant, and Marty Siler
willfully failed to pay overtime compensation. The matter is before
the Court on the Plaintiffs' Corrected Motion and Incorporated
Suggestions in Support of their Motion for Conditional
Certification Pursuant to 29 U.S.C. Section 216(b).
Defendant Epic LC is a limited liability company with two members:
Defendant Epic Inc. and Silbrook Landscape, Inc., which is not a
party to this matter. Defendant John Constant is the owner of
Defendant Epic Inc., and Defendant Marty Siler is the owner of
Silbrook Landscape, Inc.
The Plaintiffs comprise a group of current and former lawn and
landscape workers who were hourly employees of Defendants. Gomez,
who seeks to be designated as the class representative, has worked
as a lawn and landscape worker for the Defendants since Feb. 4,
2019. Throughout his employment, the Defendants have paid him, as
well as the other lawn and landscape workers, on an hourly basis.
These workers often work in excess of 40-hours per week but, at
least until July 2021, did not receive overtime premiums for such
work.
On May 30, 2022, the Plaintiffs filed the putative collective
action, asserting five claims. In Count I, they allege that the
Defendants violated the FLSA by failing to appropriately compensate
them and the putative representative action Plaintiffs for their
overtime work. In Count II, they allege that the Defendants
violated Mo. Rev. Stat. Section 290.500 for failing to pay
employees overtime. In Count III, they allege that the Defendants
breached their contract with H-2B workers by agreeing to, but
failing to, pay them overtime wages. In Count IV, the Plaintiffs
allege that the Defendants' U.S. workers are third party
beneficiaries to the Defendants' contracts with H-2B workers, and
that the Defendants breached those contracts by failing to provide
overtime compensation. Finally, in Count V, the Plaintiffs allege
that the Defendants were unjustly enriched by improperly retaining
the money that should have been paid to the non-H-2B workers in the
form of overtime wages. The only claim at issue for purposes of the
instant motion is the FLSA claim in Count I.
The Plaintiffs seek conditional certification of the following
class: All current and former lawn and landscape workers, who
worked for the Defendants at any time from three years and 120 days
from the date of the Court's Order certifying this action to the
Present.
In support, the Plaintiffs provided 620 pages of the Defendants'
pay records, as well as the Defendants' discovery responses. The
Defendants oppose the Plaintiffs' motion, asserting that the
Plaintiffs' proposed class is too disparate for conditional
certification.
Judge Robinson finds that the Plaintiffs have made a colorable
showing that the putative Plaintiffs worked for the same employer,
performed similar duties as lawn and landscape workers, and that
their allegations of FLSA overtime violations are based on the same
policy of not paying such workers for their overtime work. She is
satisfied that their allegations and supporting documentation are
sufficient for purposes of sending notice of the action to
potential class members.
Next, Judge Robinson finds that (i) the Plaintiffs' proposed class
definition is not too broad as written; (ii) the Plaintiffs' use of
the three-year statute of limitations is appropriate but she denies
their request to include the additional 120 days; and (iii) she
designates Gomez as the class representative for the collective
action and the Plaintiffs' counsel as the class counsel.
Considering her decision that the action should be conditionally
certified for purposes of notifying potential members of the class,
Judge Robinson turns to the form and substance of the notice to
potential class members, and addresses additional issues raised by
the Plaintiffs with regard to notice. She holds that (i) a short
meet-and-confer period on the notice and method of distribution is
appropriate; (ii) the Defendants must provide a detailed class list
of the putative class members; and (iii) she denies the Plaintiffs
request that the statute of limitations be tolled for putative
class members from the date the Plaintiffs filed the present motion
until the close of the opt-in period and that the statute of
limitations be tolled during any meet-and-confer period that the
Court grants.
Judge Robinson grants in part the Plaintiffs' Motion for
Conditional Certification. She conditionally certifies a collective
action for the following class of persons: All current and former
lawn and landscape workers, who worked for the Defendants at any
time from April 28, 2020 through the date the Court grants
conditional certification.
Gomez is designated as the class representative and the Plaintiffs'
counsel is approved to act as the class counsel.
The parties are directed to meet and confer about the form and
substance of the notice and dissemination plan and, if an agreement
is reached, to submit the joint proposed notice and dissemination
plan to the Court for approval within 14 days of the entry of the
Order. If the parties are unable to reach an agreement, then the
Plaintiffs will file a motion within 14 days of the entry of the
Order seeking approval of their proposed notice and dissemination
plan. The Defendants will then file their objections to the
Plaintiffs' proposed notice and submit an alternate proposed notice
and dissemination plan within 5 days of the filing of the
Plaintiffs' motion.
The Defendants are ordered to provide the Plaintiffs with a list,
both electronically in an Excel spreadsheet and by hard copy, of
all individuals who meet the above class description, including
their current or last known address, phone number, and e-mail
address, within 14 days of the entry of the Order.
Judge Robinson denies the Plaintiffs' requests for equitable
tolling of the statute of limitations for the putative class
members.
A full-text copy of the Court's April 28, 2023 Memorandum & Order
is available at https://rb.gy/tmaei from Leagle.com.
INTUIT INC: Agrees to Settle Suit Over Tax Filing Fee for $141-M
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Megan Loe of Fox 54 reports that in May 2022, attorneys general for
all 50 states and the District of Columbia announced they had
reached a $141 million settlement with Intuit, the creator of
TurboTax, over claims that it misled customers into paying for free
tax services.
The settlement requires that TurboTax refund millions of impacted
customers.
Since the settlement was announced, many VERIFY readers have asked
about how and when they will receive a payment. Recent Google
search data also show people are wondering if they'll receive a
check from the settlement.
THE QUESTION
Will eligible TurboTax users soon receive checks from a class
action settlement?
THE SOURCES
TurboTax settlement website
Attorneys general in multiple U.S. states
THE ANSWER
Yes, eligible TurboTax users will soon receive checks from a class
action settlement.
WHAT WE FOUND
TurboTax customers who qualify for a class action settlement
payment can expect a check in the mail in the coming weeks,
according to the settlement website and attorneys general in
multiple U.S. states.
Checks will be mailed out starting the second week of May and will
continue to arrive throughout the month, state attorneys general
said in press releases on May 4. Some payments may not be mailed
until late May, the settlement website says.
Consumers are eligible for the settlement if they paid to file
their federal tax returns through TurboTax for tax years 2016
through 2018, but qualified for the Internal Revenue Service's Free
File program.
Intuit said the company "admitted no wrongdoing" as part of the
settlement agreement.
The amount of money that eligible TurboTax customers will receive
from the settlement is based on the number of tax years for which
they qualify. Most people are expected to receive about $30, though
people who filed their taxes for three consecutive years could get
up to $85.
People who are eligible for a payment do not need to file a claim.
Anyone who qualifies will be notified via an email from Rust
Consulting, the settlement administrator, and automatically receive
a check in the mail.
More than 4 million people in the U.S. will receive checks as part
of the multistate settlement, the settlement website says.
If you are eligible for the settlement and have not received a
check by mid-June, you can visit the settlement website and request
a reissued payment. You will need the claimant ID number in your
email notice about eligibility for the settlement.
People who would like to verify that a check they received in the
mail is valid can also do so on the settlement website. You will
need the claimant ID number and check number, which can be found on
the tear-off portion of your check. [GN]
JENNY CRAIG: Faces Class Suit Over WARN Act Violations
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Sara Ruberg of NBC News reports that Jenny Craig employees are
seeking to join a class-action lawsuit alleging the company
violated federal and state WARN Acts, which require companies to
give employees a 60-day notice ahead of any mass layoffs or
facility closures.
The lawsuit was filed in the New Jersey District Court on May 4,
two days after the company sent an email to its employees
announcing it would fully close. The WARN Act requires companies
with 100 full-time employees or more to notify both the local and
state governments, as well as its employees, 60 days before mass
layoffs or closures. The complaint estimates hundreds of employees
could be covered by the lawsuit.
Some Jenny Craig employees received a WARN Act notice on April 25.
One week later, Jenny Craig told its employees it would close the
entire company by May 5.
In an FAQ note sent to Jenny Craig employees and obtained by NBC
News last week, the company told the staff, "Legally, per the Warn
Act, employees reporting to the Corporate Office and NJ centers are
entitled to pay for the full Warn Act notice period. However, as
the financial status of the company is still in flux, it is not
clear whether the separation date may be before 6/24 for Corporate
and 7/24 for NJ centers and could be as early as next Friday 5/5.
If it is before the full Warn Act notice date, we may not be in a
position to continue payments to the employees for the full warn
notice period."
The FAQ note also told employees that they may not be paid for the
full 60 days from the WARN Notice if the company chose to shut down
before then, which the company ended up announcing a few days
later.
In termination letters sent earlier this week, Jenny Craig told
employees they would receive "full compensation earned through your
last day of work and all accrued, unused paid time off" but,
according to the FAQ and Jack Raisner, one of the attorneys for the
employees, the laid-off employees are owed pay through the 60 days.
Raisner said the notice Jenny Craig sent to employees was
essentially a "head fake" that didn't guarantee the company would
remain open for the full 60 days after the notice, as required by
the WARN Act.
"It's important to people," Raisner said of the remaining money not
paid to employees because of the earlier-than-expected layoffs. "It
throws people into an enormous upheaval and free fall actually."
No one at HIG Capital, the $55 billion private equity firm which
acquired the weight loss company in 2019, or Jenny Craig could be
reached for comment on the lawsuit.
The employees are seeking pay for the full 60 days since the
original notice was sent, as well as the monetary value of the
benefits they would have enjoyed during that time. The WARN Act has
been adapted to have stricter requirements in some states. In New
Jersey, a new version of the WARN Act requires laid-off employees
receive one week of severance for every year of service.
Employees and legal experts said all signs of layoffs and closure
notices point to a bankruptcy filing soon from JC USA, Inc. [GN]
KROGER CO: Ninth Circuit Affirms Dismissal of Vitort Class Suit
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In the case, SARAH VITORT, a consumer residing in Oregon,
individually and on behalf of all others situated,
Plaintiff-Appellant v. KROGER COMPANY, et al.,
Defendants-Appellees, Case No. 22-35185 (9th Cir.), the U.S. Court
of Appeals for the Ninth Circuit affirms the district court's
dismissal of the putative class action complaint.
Vitort appeals from the district court's dismissal of her putative
class action complaint against Defendants-Appellees The Kroger Co.
and Fred Meyer Stores, Inc. (together, "Kroger"). She alleged that
Kroger violated multiple provisions of the Oregon Unlawful Trade
Practices Act, Or. Rev. Stat. Sections 646.605, et seq. ("OUTPA"),
and breached the implied warranty of merchantability when it
falsely or misleadingly labeled a spreadable fruit product
containing fruit-based sweeteners as "Just Fruit."
The Ninth Circuit reviews the district court's dismissal de novo
and affirms.
Firstly, it agrees with the district court's conclusion that
Kroger's "Just Fruit" label is not objectively false. While many
spreadable fruit products contain non-fruit ingredients, such as
flavor extracts, non-fruit sugar, food coloring, or animal gelatin,
it opines that each ingredient in Kroger's "Just Fruit" product
derives from fruit. Accordingly, its label is not objectively
false.
The Ninth Circuit further agrees with the district court's
conclusion that Kroger's "Just Fruit" label is not likely to
mislead a reasonable consumer. It concludes that Kroger's "Just
Fruit" label is not likely to mislead a significant portion of
reasonable grocery shoppers. It opines that the "Just Fruit" label
does not expressly or impliedly say anything about the sugar
content of the product, nor would a reasonable consumer interpret
it as doing so. In the Ninth Circuit's view, the reasonable
interpretation of the "Just Fruit" label forecloses Vitort's claims
that Kroger committed an unlawful trade practice under the OUTPA.
Accordingly, the district court did not err in dismissing the case
with prejudice because Vitort has not alleged, and cannot allege,
facts to state a plausible claim that the Just Fruit label is
false, deceptive, or misleading.
Because the Ninth Circuit affirms the district court on independent
grounds, it does not reach the Parties' arguments about whether the
Federal Food, Drug, and Cosmetic Act preempts Vitort's third and
fifth claims. Similarly, it does not reach Kroger's argument that
dismissal was separately justified because Vitort cannot establish
that she experienced an ascertainable loss.
A full-text copy of the Court's April 28, 2023 Memorandum is
available at https://rb.gy/8x1ce from Leagle.com.
MEDICAL SOLUTIONS: Dittman's Class Settlement Wins Final Approval
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In the case, BRYON DITTMAN, an individual on behalf of himself and
others similarly situated, Plaintiffs v. MEDICAL SOLUTIONS, L.L.C.;
and DOES 1 to 10 inclusive, Defendants, Judge Morrison C. England,
Jr., of the U.S. District Court for the Eastern District of
California grants the motion for final approval of a Joint
Stipulation and Settlement Agreement resolving all claims asserted
in this class and collective action.
The lawsuit is brought by Plaintiff Dittman against Medical
Solutions. The operative First Amended Complaint asserts California
state law claims for unpaid overtime (Cal. Labor Code Sections 510,
1194), unfair business practices (Cal. Bus. & Prof. Code Section
17200, et seq.), waiting time penalties (Cal. Labor Code Section
203), and civil penalties under the California Labor Code Private
Attorney General Act ("PAGA") (Cal. Labor Code Section 2698, et
seq.), as well as a federal claim for violation of the Fair Labor
Standards Act ("FLSA") (29 U.S.C. Section 201, et seq.).
On Oct. 23, 2018, the Court certified the following:
a. Rule 23 Class with respect to the state law claims for
unpaid overtime, unfair business practices and waiting time
penalties: All non-exempt hourly healthcare professionals employed
by Medical Solutions who, at any time from Sept. 7, 2013 through
Oct. 23, 2018, worked in California pursuant to a Travel Assignment
Agreement during which they received housing and/or meal and
incidental benefits, received overtime pay, and had the value of
their housing and/or meals and incidental benefits excluded from
their regular rate for purposes of calculating overtime pay.
b. FLSA Collective with respect to the FLSA claim: All
non-exempt hourly healthcare professionals employed by Medical
Solutions in the United States who, at any time since Oct. 23,
2018, worked pursuant to a Travel Assignment during which they
received housing and/or meal and incidental benefits, worked in
excess of 40 hours in one or more workweeks, and had the value of
their housing and/or meals and incidental benefits excluded from
their regular rate for purposes of calculating overtime pay.
Following certification, a Court-approved third-party administrator
disseminated a Court-approved notice to the members of the Rule 23
Class and FLSA Collective providing an opportunity to opt-out of
the Rule 23 Class and opt-in to the FLSA Collective. After
excluding opt-outs, the Rule 23 Class included 2,770 individuals.
In addition, 669 individuals timely opted-in to the FLSA
Collective.
On Sept. 11, 2019, the Court issued an Order on the parties'
cross-motions for summary judgment, in which it granted in part and
denied in part each party's motion. It granted partial summary
judgment in favor of the Plaintiff as to Medical Solutions'
liability for (1) failing to properly calculate overtime rates in
compliance with the California Labor Code and FLSA, (2) PAGA
penalties, and (3) liquidated damages under the FLSA. In turn, the
Court granted partial summary judgment in favor of Medical
Solutions on (1) the waiting time claim and (2) the request for an
extended three-year statute of limitations period on the FLSA
claim.
On July 21, 2022, the Court issued an Order granting Medical
Solution's motion to decertify the Rule 23 Class and FLSA
Collective without prejudice to the Plaintiff filing a renewed
motion to certify the class and collective. Before the members of
the Rule 23 Class and FLSA collective were provided notice of the
decertification Order, however, the parties reached the present
Settlement pursuant to which the parties stipulated to
recertification of the previously certified Rule 23 Class and FLSA
Collective.
Accordingly, the Settlement is on behalf of the 2,770 individuals
who did not opt-out of the previously certified Rule 23 Class
("Rule 23 Settlement Class") and the 669 individuals who
affirmatively opted-in to the previously certified FLSA Collective
("FLSA Settlement Collective").
On Dec. 20, 2022, the Court granted preliminary approval of the
Settlement, conditionally certified the Rule 23 Settlement Class
and FLSA Settlement Collective and ordered that notice of the
Settlement be disseminated to all members of the class and
collective. In accordance with that Order, notice of the Settlement
was sent to the members of the Rule 23 Settlement Class and FLSA
Settlement Collective. The Court received no objections to the
Settlement.
The present motion for final approval of the Settlement was filed
on March 16, 2023, and a motion for attorneys' fees, costs, service
award, and settlement administration expenses was filed on Feb. 27,
2023. A final fairness hearing was held on April 20, 2023.
Judge England has now considered all papers, evidence and argument
submitted regarding the Settlement. He grants final approval of the
Settlement and finds that it is fair, reasonable, and adequate and
satisfies the standards for final approval of a class action
settlement under federal law. The parties will fulfill the terms of
the Settlement.
Judge England confirms certification of the Rule 23 Settlement
Class and FLSA Settlement Collective. The members of the Rule 23
Settlement Class will be deemed to have released the Released
Parties from the Class Released Claims as those terms are defined
in the Settlement. The members of the FLSA Settlement Collective
will be deemed to have released the Released Parties from FLSA
Released Claims as those terms are defined in the Settlement.
In accordance with the terms of the Settlement, Judge England
approves the following payments: (i) the class counsel attorneys'
fees in the amount of $1,541,666.66 and reimbursement of litigation
expenses in the amount of $37,464.72; (ii) a class representative
service award to the Plaintiff in the amount of $10,000; (iii)
settlement administration fees and expenses to CPT Group, Inc. in
the amount of $23,250.
The Order and Judgment will constitute final judgment for the
purpose of Rule 59 of the Federal Rules of Civil Procedure. Without
affecting the finality of the matter, the Court will retain
jurisdiction over this action and the parties for purposes of
enforcing the terms and conditions of the Settlement.
The Clerk of the Court is directed to close the case.
A full-text copy of the Court's April 28, 2023 Order & Judgment is
available at https://rb.gy/njicw from Leagle.com.
MISSISSIPPI: 5th Cir. Reverses Dismissal of Gonzales v. Gillis
--------------------------------------------------------------
In the case, Louis Gonzalez, also known as Carlos Ramos Sanchez,
Plaintiff-Appellant v. Shawn R. Gillis; Stanley Crockett; Chad
Wolf; William Barr, Defendants-Appellees, Case No. 21-60634 (5th
Cir.), the U.S. Court of Appeals for the Fifth Circuit reverses the
order dismissing Gonzalez's claims with prejudice and remands for
the district court to enter a new order of dismissal without
prejudice.
Gonzalez, an immigration detainee, alleges that the warden of a
privately operated detention center and three former federal
officials violated his rights by restricting his use of the
LexisNexis database. After the district court sua sponte dismissed
Gonzalez's claims, he appealed.
When Gonzalez filed his complaint on April 16, 2020, he was
detained at a private facility in Washington, Mississippi (the
Washington facility), which contracts with the federal government
to house immigration detainees. The complaint asserts that Gonzalez
and other detainees are challenging their prolonged immigration
detention through habeas corpus petitions. On March 20, 2020, the
Washington facility allegedly changed the LexisNexis law program
installed on the law library computers by removing federal and
immigration cases.
Gonzalez alleges that those cases are vital for the detainees'
defense and that the removal of those cases is therefore
"hindering" him and other detainees from preparing their cases to
challenge effectively the prolonged detention they are suffering.
In addition, the Washington facility allegedly disabled the "right
click" button on mice in the library, which kept detainees from
copying and pasting and forced them to type long paragraphs of law
into their allegations.
Gonzalez's complaint includes four causes of action against the
warden of the Washington facility, the Director of the New Orleans
Field Office for Immigration and Customs Enforcement (ICE), the
Secretary of the Department of Homeland Security, and the Attorney
General of the United States. He brings a claim under 42 U.S.C.
Section 1983 alleging that the Defendants violated his federal
constitutional "right of access to the courts," claims under 42
U.S.C. Section 1985(2) and (3) alleging that the Defendants
conspired to interfere with his due process right of access to the
courts, and a state-law claim for intentional infliction of
emotional distress (IIED).
Gonzalez seeks declaratory relief and an injunction immediately
providing him and the class he represents, with the part of the
LexisNexis program that was removed, allowing the right click
button to copy and paste, and preventing the Defendants from
removing or modifying the system without consulting the Plaintiff
for any removal or modification of the computer system that may
hamper Gonzalez and the class he represents from presenting pro se
claims in courts. He also seeks $150,000 in damages.
In July 2020, a magistrate judge directed service on the
Defendants. The federal-officer Defendants moved to dismiss the
case, Gonzalez filed an opposition brief, and then Gonzalez moved
to amend his complaint. In December 2020, the federal-officer
Defendants filed a response to Gonzalez's motion stating that they
did not object to the amended complaint, and the warden filed an
answer to the amended complaint.
Five months later, the magistrate judge sua sponte recommended that
the district court dismiss the case for failure to state a claim
under 28 U.S.C. Section 1915(e)(2)(B)(ii). The report and
recommendation (R. & R.) construed Gonzalez's Section 1983 claims
as arising under Bivens v. Six Unknown Named Agents of Federal
Bureau of Narcotics, 403 U.S. 388 (1971), and recommended
dismissing those claims against all Defendants in their official
capacities. With respect to Gonzalez's individual-capacity Bivens
claims, the R. & R. did not consider whether Bivens should be
extended to access-to-courts claims and instead found that Gonzalez
had not adequately alleged that the Defendants caused him to lose a
nonfrivolous claim.
The R. & R. recommended dismissal of Gonzalez's Section 1985(2) and
(3) claims because he failed to adequately allege a conspiracy and
recommended dismissal of his Section 1985(3) claim because he did
not "mention his race" in the complaint. And the R. & R. found that
Gonzalez had not adequately alleged the elements of an IIED claim
under Mississippi law. Finally, the R. & R. concluded that
Gonzalez's claims for injunctive relief were moot because he had
been transferred out of the Washington facility. The R. & R.
recommended that all these claims be dismissed with prejudice.
Because the magistrate judge found that Gonzalez's proposed amended
complaint did not remedy the pleading deficiencies identified in
the R. & R., the magistrate judge also recommended that the
district court deny Gonzalez's motion to amend his complaint.
After Gonzalez failed to timely file objections to the R. & R., the
district court adopted the R. & R. and dismissed the case with
prejudice. Final judgment was entered on July 9, 2021. Eleven days
later, Gonzalez filed objections to the R. & R., and two days after
that, he moved for relief from the district court's final order
under Federal Rule of Civil Procedure 60(b), arguing that his
objections were timely. On Aug. 11, 2021, he filed a notice of
appeal.
On Sept. 14, 2021, the district court overruled Gonzalez's
objections. Although it concluded that the objections were
untimely, the district court still reviewed de novo those parts of
the R. & R. to which Gonzalez had objected. On de novo review, it
again adopted the R. & R. Separately, it issued an order denying
Gonzalez's Rule 60(b) motion.
The Fifth Circuit holds that Gonzalez's access-to-courts claims
under Bivens are not adequately pleaded. On appeal, Gonzalez argues
that the district court erred in dismissing these claims because
the law library is inadequate and the defendants acted willfully.
But, the Fifth Circuit holds that there is no abstract,
freestanding right to a law library or legal assistance. For
Gonzalez to have been denied access to the courts, he must allege
that he has a nonfrivolous, arguable underlying claim. Because he
has not done so, the district court correctly dismissed these
claims.
The Fifth Circuit further holds that the district court also
correctly dismissed Gonzalez's claims under Section 1985(2) and (3)
because he failed to adequately allege a conspiracy. On appeal,
Gonzalez argues that the district court erred in dismissing these
claims because the law library is inadequate and the defendants
acted willfully. But there is no "abstract, freestanding right to a
law library or legal assistance." For Gonzalez to have been denied
access to the courts, he must allege that he has a nonfrivolous,
arguable underlying claim. Because he has not done so, the district
court correctly dismissed these claims.
The district court also correctly dismissed Gonzalez's claims under
Section 1985(2) and (3) because he failed to adequately allege a
conspiracy. The Fifth Circuit says Gonzalez's complaint does not
contain sufficient factual matter, accepted as true, to state a
conspiracy claim that is plausible on its face with respect to any
of the named Defendants.
As the district court concluded, Gonzalez's claims for injunctive
relief are moot. The Fifth Circuit says although Gonzalez's
complaint seeks an injunction with respect to conditions at the
Washington facility, he has been transferred to a different
detention center, and he does not point to any evidence of a
demonstrated probability or reasonable expectation of transfer back
to the Washington facility or reincarceration there. Gonzalez's
claims for injunctive relief as to the Washington facility are
therefore moot. For these reasons, the dismissal of Gonzalez's
claims for injunctive relief is affirmed.
Construed liberally, Gonzalez's brief argues that the district
court erred in dismissing his case with prejudice. The Fifth
Circuit agrees. To start, Gonzalez has not had an adequate
opportunity to cure his pleading deficiencies because his proposed
amendments were not drafted with the benefit of the R. & R. or the
district court's dismissal order. Further, Gonzalez's objections to
the R. & R. include new factual allegations that show that he has
not pleaded his best case. The general rule that dismissal should
be without prejudice applies in the case. The Fifth Circuit
reverses and remands for the district court to enter a new order
dismissing the case without prejudice.
Judge Stephen A. Higginson, writing for the Fifth Circuit, agrees
with the district court that Gonzalez's claims for injunctive
relief are moot and his other claims are inadequately pleaded.
However, he concludes that the district court erred in dismissing
Gonzalez's claims with prejudice when he had not yet been given an
opportunity to amend his complaint to allege his best case.
Therefore, Judge Higginson reverses and remands for the district
court to enter a new order of dismissal.
A full-text copy of the Court's May 2, 2023 Opinion is available at
https://rb.gy/op08x from Leagle.com.
MY PILLOW: Deutsch Lose Summary Judgment in Class Action
---------------------------------------------------------
In the class action lawsuit captioned as Brandon Deutsch,
individually and on behalf of all others similarly situated, v. My
Pillow, Inc., Case No. 0:20-cv-00318-SRN-ECW (D. Minn.), the Hon.
Judge Susan Richard Nelson entered an order that:
1. The Plaintiffs' motion for summary judgment is denied.
2. The Defendants motion for summary judgment is granted in part
and denied in part.
3. The Plaintiffs' motion to certify class and appointment of
class
representatives and class counsel are granted.
4. The Court certifies the following Rule 23 class:
"All former Call Center Representatives, or other job titles
performing similar job duties, employed by My Pillow, Inc.,
at
any time from July 1, 2019, to December 31, 2020, who were
not
paid for all hours worked."
This class is certified with respect to the Plaintiffs' claim for a
violation of the Minnesota Payment of Wages Act. Mr. Deutsch and
Mr. Lyons are appointed as class representatives.
The Plaintiffs' counsel, Jacob R. Rusch, Timothy J. Becker, and
Zackary S. Kaylor of Johnson Becker, PLLC, and Jennell K. Shannon
of Ballard Spahr LLP, are appointed as class counsel.
The Plaintiff Brandon Deutsch filed the original Complaint on
January 24, 2020, on behalf of himself and a putative class of
similarly situated call center employees, alleging violations of:
(1) the Fair Labor Standards Act (FLSA), for failure to pay
overtime wages.
(2) the Minnesota Payment of Wages Act (MPWA), for failure to
timely pay straight time wages.
(3) the Minnesota Fair Labor Standards Act (MFLSA), for
failure
to keep accurate records.
In addition, Mr. Deutsch asserted a claim for civil penalties on
behalf of the Minnesota Commissioner of Labor & Industry for the
alleged violations of the MFLSA and MPWA, Count IV.
Mr. Deutsch worked for My Pillow from December 16, 2017, to
September 27, 2019. He worked "40 hours or more in 5 of his 95
weeks of employment. "My Pillow terminated Mr. Deutsch for
tardiness and for not reporting for his shifts.
My Pillow is a pillow manufacturing company known for its eponymous
patented pillow.
A copy of the Court's order dated April 27, 2023, is available from
PacerMonitor.com at https://bit.ly/3ND6d4y at no extra charge.[CC]
The Plaintiff is represented by:
Jacob R. Rusch, Esq.
Timothy J. Becker, Esq.
Zackary S. Kaylor, Esq.
JOHNSON BECKER PLLC
444 Cedar Street, Suite 1800
St. Paul, MN 55101
- and-
Jennell K. Shannon, Esq.
BALLARD SPAHR LLP
80 South 8th Street, Suite 2000
Minneapolis, MN 55402
The Defendant is represented by:
Alec J. Beck, Esq.
Andrew D. Parker, Esq.
Lori A. Johnson, Esq.
PARKER DANIELS KIBORT LLC
123 N. Third Street, Suite 888
Minneapolis, MN 55401
NATIONWIDE MUTUAL: Plaintiffs Seek Leave to File Unredacted Reply
-----------------------------------------------------------------
In the class action lawsuit captioned as Ryan Sweeney and Bryan
Marshall, as individuals, and on behalf of all others similarly
situated, and on behalf of the Nationwide Savings Plan, v.
Nationwide Mutual Insurance Company; Nationwide Life Insurance
Company; and the Investment Committee of the Nationwide Savings
Plan, David Berson, David LaPaul, Kevin O'Brien, Klaus Diem,
Michael Mahaffey, and Michael P. Leach, Case No.
2:20-cv-01569-JLG-CMV (S.D. Ohio), the Plaintiffs seek leave to
file an unredacted version of their Reply in Support of Motion for
Class Certification, and certain exhibits to the Declaration of
Eleanor Frisch submitted in connection with their Reply, under seal
on the following grounds:
1. Pursuant to Civil Local Rule 5.2.1.(a) and 8 of the
Stipulation
and Agreed Protective Order in Edwards v. Nationwide Mutual
Insurance Company, Case No. 2:20-cv-1525, which the Court has
previously applied to this case, a party seeking to submit
documents that contain information designated as
"Confidential
Matters."
2. The Plaintiffs' Reply references portions of the record that
contain Confidential Matters that the Court approved for
filing
under seal in connection with the Defendants' Motion for
Summary
Judgment and the Defendants' Memorandum.
Nationwide is an insurance and financial service company, focusing
on domestic property and casualty insurance, life insurance.
A copy of the Plaintiffs' motion dated April 27, 2023 is available
from PacerMonitor.com at https://bit.ly/3LtCacF at no extra
charge.[CC]
The Plaintiffs are represented by:
Eric H. Zagrans, Esq.
ZAGRANS LAW FIRM LLC
1640 Roundwyck Lane
Columbus, OH 43065-8416
Telephone: (440) 452-7100
E-mail: eric@zagrans.com
- and -
Kai H. Richter, Esq.
Eleanor Frisch, Esq.
Michelle C. Yau, Esq.
Daniel R. Sutter, Esq.
COHEN MILSTEIN SELLERS & TOLL PLLC
400 South Fourth Street No. 401-27
Minneapolis, MN 55415
Telephone: (612) 807-1575
Facsimile: (202) 408-4699
E-mail: myau@cohenmilstein.com
krichter@cohenmilstein.com
dsutter@cohenmilstein.com
efrisch@cohenmilstein.com
NEW JERSEY: Court Narrows Claims in Planker v. Atkins and NJDOC
---------------------------------------------------------------
In the case, KEVIN PLANKER, et al., Plaintiffs v. LAWRENCE ATKINS,
et al., Defendants, Civ. No. 20-4264 (MCA) (D.N.J.), Judge Madeline
Cox Arleo of the U.S. District Court for the District of New Jersey
permits to proceed in part and dismisses in part Planker's Amended
Complaint.
Planker has filed a 114-page Amended Complaint that attempts to
bring sweeping claims on behalf of prisoners practicing "Organic
Asatru" and former prisoners practicing Asatru as parolees. He
principally claims that he and other prisoners practicing Asatru
within the New Jersey Department of Corrections ("NJDOC") are being
denied opportunities and various religious items and accommodations
necessary to practice their Asatru religious faith and that the
NJDOC has made such accommodations for other religious faiths. He
previously sought leave to submit an Amended Complaint and the
Court deems the Amended Complaint to be the operative complaint in
the action.
Although Planker paid the filing fee, he subsequently sought and
received IFP status. At this time, Judge Arleo screens Planker's
Amended Complaint for dismissal pursuant to 28 U.S.C. Section
1915(e)(2)(B). The original complaint is purportedly signed by a
former prisoner named Ryan Pittinger, who was released from the
NJDOC in 2020. Prior to screening the Amended Complaint, the Court
required Pittinger respond in writing as to whether he intended to
proceed in the action. That Order was returned as undeliverable to
Pittinger, and Judge Arleo deems the action withdrawn without
prejudice as to this Plaintiff.
The Amended Complaint also alleges that Gary Tozzi, a former
prisoner within the NJDOC, is a plaintiff in the action. The
Complaint contends that Tozzi is filing the complaint on behalf of
himself and other civilians who are attempting to practice Asatru
on probation and parole. It states that Tozzi is seeking
religiously acceptable medical treatment, a religious diet, natural
cosmetics and detergents, ritually appropriate food preparations,
religious items, areas, and conditions necessary to practice their
religious beliefs. Tozzi, however, has not signed the Amended
Complaint, and Judge Arleo does not consider him to be a plaintiff
in the action.
The Amended Complaint also lists 175 prisoners who purportedly
practice Asatru and contends that there are over 400 prisoners who
have practiced Asatru within the NJDOC over an unspecified time
period. None of these prisoners have signed the Amended Complaint,
and Judge Arleo does not consider them to be plaintiffs in the
matter.
The Plaintiff has also filed a motion to amend seeking to add
another former prisoner, Kyle Powell, to the Complaint as a
Plaintiff. Powell presumably would replace Pittinger to "represent"
former prisoners who are seeking to practice Asatru while on
parole. Judge Arleo holds that a pro se prisoner, however, cannot
represent a putative class. Moreover, she finds that the
allegations about former prisoners in the Amended Complaint are not
specific to Powell (or Planker), are conclusory at best, and do not
state claims for relief against any Defendants. She therefore
denies without prejudice the request to add Powell as a Plaintiff
and also dismisses without prejudice all claims in the Amended
Complaint related to former prisoners seeking to practice Asatru
while on parole/probation.
The Planker also seeks to add James Gallichio who is presently
incarcerated at South Woods State Prison. Although Gallichio claims
to have "contributed" to the Complaint, Judge Arleo holds that
Gallichio provides no other facts from which the Court could
conclude that he shares Planker's sincerely-held religious beliefs
regarding Organic Asatru, and the Amended Complaint and Gallichio's
Declaration are silent about Gallichio's belief system. As such,
she denies the motion to amend to add Gallichio as a Plaintiff.
Planker, as a pro se plaintiff, also cannot represent a putative
class. Judge Arleo explains that she intends to proceed certain
claims and the Defendants in the Amended Complaint. She orders that
after Planker completes the forms to serve the Defendants, he may
file a formal motion for pro bono counsel and set forth the reasons
why counsel should be appointed in this matter. If counsel is
appointed, he or she would decide whether to seek class action
treatment or move to add additional plaintiffs to the case. At this
juncture, however, Planker is the only Plaintiff in this matter.
Planker is currently an inmate at South Woods State Prison
("SWSP"). He has been incarcerated for over 20 years within the
NJDOC. According to the Amended Complaint, he was incarcerated at
New Jersey State Prison ("NJSP") from 1999-2017, transferred to
Northern State Prison ("NSP") and East Jersey State Prison ("EJSP")
between 2017 and 2021, and transferred to SWSP or about Sept. 27,
2021.
Planker alleges that he requested to practice "Organic Asatru" at
each facility but was denied by Warren Wilcox at NJSP, Reverend Dr.
Brantley at NSP, Reverend Lawrence Atkins at EJSP, and Reverend
Philip Harden at SWSP. According to him, Defendants Atkins,
Brantley, Wilcox, Hines, Amir5 and Harden denied him the ability to
practice Asatru as it is approved for practice within the NJDOC. He
further alleges that he has not be able to practice Organic Asatru
"as it has been approved by the New Jersey Department of
Corrections since 2004" or the way he has requested to practice
it.
The Plaintiff contends that "other groups" both religious and
nonreligious have been given preferential treatment. He appealed to
the Religious Issues Committee after the NJDOC administration
upheld the chaplains, and he also appealed to the Commissioner's
Office and the Central Office. He alleges that he has not been able
to perform a single Asatru rite during his incarceration.
With respect to the denial of Planker's religious freedom, Judge
Arleo liberally construes the Amended Complaint to assert
violations of the Religious Land Use and Institutionalized Persons
Act, 42 U.S.C. Section 2000cc-1 ("RLUIPA"), the First Amendment
right to free exercise of religion and the First Amendment
Establishment Clause, and the Fourteenth Amendment right to equal
protection. From the outset, the State, its agencies, and its
officials sued in their official capacities for damages are not
"persons" under Section 1983. As such, the Section 1983 claims
against the State and its officials in their official capacities
are dismissed with prejudice.
Judge Arleo, however, permits the First Amendment and equal
protection claims to proceed against Wilcox, Brantley, Hines,
Ameer, Atkins, Harden in their individual capacities for damages
and in their official capacities for injunctive relief based on the
detailed allegations against them in the Amended Complaint. She
also proceeds First Amendment retaliation claims against Defendants
Brantley, Hines, and Ameer based on discrete incidents of alleged
retaliation Planker describes in detail in his Complaint.
Judge Arleo also permits the RLUIPA claims to proceed against the
State of New Jersey/NJDOC for injunctive relief only. She dismisses
the RLUIPA claims for damages because of Eleventh Amendment
immunity as to the State of New Jersey and all the Defendants sued
in their official capacities for damages. At this early stage, it
is not clear who can provide injunctive relief to the Plaintiff
under RLUIPA, if warranted.
Judge Arleo also proceeds the RLUIPA claims against Wilcox,
Brantley, Hines, Ameer, Atkins, and Harden in their official
capacities for injunctive relief only. She also permits the RLUIPA
claims to proceed against Victor Lee, Coordinator of Religious
Services for the NJDOC, Michelle Ricci, Religious Issues Committee
Member and Director of the Division of Operations for NJDOC, and
Keisha Fischer, Administrator of SWSP (where the Plaintiff
currently resides), in their official capacities for injunctive
relief only.
The Plaintiff has also sued Fischer, Lee, Ricci, and a number of
other high-ranking supervisory prison and government officials,
including former Commissioner of the NJDOC Marcus Hicks, Assistant
Commissioner of the NJDOC Stephen D'Ilio, former Governor Chris
Christie, and Governor Phil Murphy, for deliberate indifference.
His Complaint claims in a conclusory manner that these Defendants
were "deliberately indifferent" to prison officials' refusal to
permit him to practice Asatru.
Judge Arleo holds that these conclusory allegations do not
plausibly suggest the liability of these Defendants in their
individual capacities for damages under Section 1983. She dismisses
without prejudice the civil rights claims against Fischer, Lee,
Ricci, Hicks, D'Ilio, Lanigan, Christie, and Murphy in their
individual capacities for damages. Likewise, she finds that the
Plaintiff has not provided sufficient facts suggesting that Hicks,
D'Ilio, Lanigan, Christie, or Murphy could provide him with
injunctive relief under Section1983 or RLUIPA for violations of his
religious rights. As such, she likewise dismisses without prejudice
the official capacity claims for injunctive relief under Section
1983 and RLUIPA as to these Defendants.
In addition to the Defendants listed, Judge Arleo construes
Planker's Amended Complaint to allege that other individual
Defendants directly violated his constitutional rights under
Section 1983.
Planker has sued Dr. Musser, the head of mental health at Facility
2 at SWSP. Judge Arleo has reviewed the allegations in Count
Twenty-Five and proceeds First Amendment free exercise claim
against this Defendant based on her decision to place Planker in a
mental health unit after he told her about his religious beliefs.
Planker has also sued Doctor D'Adonna, who allegedly discriminated
against him for religious reasons and retaliated against him by
intentionally scheduling him for mandatory appointments that
interfered with his sincerely-held religious beliefs. Judge Arleo
has reviewed the allegations against this Defendant in Count
twenty-five and proceeds a First Amendment free exercise claim
against this Defendant.
The Plaintiff has sued Anthony Gangi, a prison official at Northern
State Prison, who denied Planker musical instruments for religious
use while allowing other prisoners to have musical instruments and
encouraged Planker get vaccinated against COVID-19 against his
religious beliefs to get organic food packages but subsequently
denied him organic food packages. Judge Arleo proceeds a First
Amendment free exercise claim against this Defendant.
Judge Arleo also proceeds claims against the following John/Jane
Doe Defendants subject to their identification in discovery. She
proceeds a First Amendment retaliation claim against John Doe I, a
prison official who allegedly had Planker "shipped out" of EJSP in
August 2019 in retaliation for filing administrative grievances.
She proceeds a First Amendment retaliation and inadequate medical
care claim against John Doe II, a prison official at NSP, who
refused to provide Planker with his heart medication after making
comments about his religion and his interactions with Defendant
Hines.
Judge Arleo proceeds a First Amendment retaliation and inadequate
medical care claim against Jane Doe III, a nurse at NSP who took
Planker's heart disease medication during a one-week period in
September 2021, refused to let him see a doctor for medical advice,
and refused to return his medication due to his religion and his
interaction with religious staff. Judge Arleo dismisses without
prejudice the remaining John/Jane Doe Defendants for failure to
state a claim for relief.
Judge Arleo also dismisses without prejudice the Section 1983
claims against Linda Linen, a prison official at SWSP. The
Plaintiff alleges that this Defendant acted with deliberate
indifference to "plaintiffs" right to practice Asatru and receive
equal treatment, and subjected the "plaintiffs" to unsafe
conditions. Judge Arleo says there are insufficient allegations to
state any claims for relief against this Defendant.
Planker has also sued Universal Healthcare or Rutgers, for
violations of his rights to religious freedom and violations of his
right to medical care. Judge Arleo holds that entities like
Rutgers, which provide healthcare services for to the County
pursuant to a contract, cannot be held responsible for the acts of
its employees under a theory of respondeat superior or vicarious
liability. Thus, to state a claim for relief, Planker must provide
facts showing that CFG had a relevant policy or custom, and that
the policy or custom caused the constitutional violation he
alleges. He has not provided policy or custom allegations and his
claims against Rutgers are dismissed without prejudice.
Planker has also sued JPay, for banning photographs that are
"required" by his religion. Judge Arleo says Planker alleges in
passing that JPay "provides" religious materials, videos and
services for some religious groups but not for Asatru prisoners,
but many of the allegations against JPay are unrelated to the
prisoners religious rights. The Plaintiff has sued Securus
Technologies under the same theory of liability. Judge Arleo says
the Plaintiff has not pleaded a policy or custom claim against
either entity, and she dismisses the claims against JPay and
Securus without prejudice for failure to state a claim for relief.
Finally, in Count Fourteen, Planker sues the United States for
keeping cannabis as a Schedule I drug. This claim is frivolous and
is dismissed for failure to state a claim for relief, Judge Arleo
holds. She says the allegations in the Complaint otherwise involve
state (rather than federal) actors and entities, and amendment to
the claims against the United States would be futile. As such, this
dismissal is with prejudice.
Based on the foregoing, Judge Arleo orders that the Amended
Complaint will be filed. She denies the motions to amend and for a
hearing.
The Amended Complaint is proceeded in part and dismissed in part
pursuant to the Court's screening authority under 28 U.S.C. Section
1915(e)(2)(B).
The Complaint will proceed as to Defendants State of New
Jersey/NJDOC, Warren Wilcox, Reverend Dr. Brantley, Reverend
Lawrence Atkins, Reverend Philip Harden, Reverend Hines, Tariq
Ameer, Michelle Ricci, Victor Lee, Keisha Fischer, Dr. Mussey, Dr.
D'Adonna, Anthony Gangi, John Doe I, John Doe II, and Jane Doe III,
with respect to the claims described in the Memorandum and Order;
the remaining claims and Defendants are dismissed.
The Clerk of the Court will provide the Plaintiff with copies of
the USM-285 form for the Defendants State of New Jersey/NJDOC,
Warren Wilcox, Reverend Dr. Brantley, Reverend Lawrence Atkins,
Reverend Philip Harden, Reverend Hines, Tariq Ameer, Michelle
Ricci, Victor Lee, Keisha Fischer, Dr. Mussey, Dr. D'Adonna, and
Anthony Gangi.
The Plaintiff will complete the forms for these Defendants only and
return them to the Clerk of the Court.
Upon the Plaintiff's sending of the completed forms to the Clerk of
the Court, the Clerk will issue summons, and the United States
Marshal will serve a copy of the Amended Complaint, summons, and
the Order upon the Defendant, with all costs of service advanced by
the United States.
The Defendant will file and serve a responsive pleading within the
time specified by Federal Rule of Civil Procedure 12.
The Clerk will notify the Plaintiff of the opportunity to apply in
writing to the assigned judge for the appointment of pro bono
counsel.
If at any time prior to the filing of a notice of appearance by the
Defendant(s), the Plaintiff seeks the appointment of pro bono
counsel or other relief, pursuant to Fed. R. Civ. P. 5(a) and (d),
the Plaintiff will (1) serve a copy of the application by regular
mail upon each party at his last known address and (2) file a
Certificate of Service;.
The Court will administratively terminate the case at this time for
docket management purposes; it retains jurisdiction over the
matter, which will be reopened once the Plaintiff's submits the USM
forms and service of at least one Defendant is completed.
The Clerk of the Court will serve the Plaintiff with copies of the
Memorandum and Order via regular mail.
A full-text copy of the Court's April 28, 2023 Opinion & Order is
available at https://rb.gy/n9knq from Leagle.com.
NEW YORK, NY: Miller Suit Parties to Refile Class Notice in 14 Days
-------------------------------------------------------------------
In the case, DAHKEEM MILLER, et al., Plaintiffs v. CITY OF NEW
YORK, et al., Defendants, Case No. 21-cv-2616 (PKC), Judge P. Kevin
Castel of the U.S. District Court for the Southern District of New
York orders the parties to resubmit their proposed Notice to Class
Members within 14 days.
Judge Castel has reviewed the Motion for Preliminary Approval of a
Class Action Settlement and he says he appreciates the diligence of
counsel, the parties, and the mediator in their efforts to resolve
the action. He is presently inclined to grant preliminary approval
but has certain reservations about the proposed Notice to Class
Members.
Judge Castel understands the challenges of drafting a Notice for a
population of imprisoned or formerly imprisoned persons who are
unlikely to be sophisticated in class actions. The purpose of the
Notice is to enable a class member to make an informed decision.
In the case, Judge Castel finds that the Notice unintentionally
lacks clarity. It introduces the notion of "Challenging" the amount
of an individual's damages before explaining the concepts and
consequences of remaining in the class or opting out or objecting
to the settlement. He says the Notice should first explain that if
a would-be class member believes that the settlement formula --
i.e., the $400 per day rate or the $450 per day rate for people
with Serious Mental Illness or people who were under 22 years old
-- is too low or perceives any other deficiency in the settlement,
the person may opt out of the class and pursue his own action or
remain in the class and object to the settlement. The Notice should
explain that a "Challenge," as the term is used throughout the
Notice, will not affect the $400/$450 rates or any other term of
the settlement.
In addition, Judge Castel points out that the Notice should refer
to the possible attorneys' fees and costs in a consistent manner.
It should disclose an intent to apply to the Court for a
differential payment of $20,000 for each of the seven class
representatives in addition to the amount they receive as part of
the settlement and explain whether this is included in the 25%
maximum.
Finally, Judge Castel notes that the Notice should also disclose
that the parties estimate that the Anticipated Maximum Total
Payment Amount is $53,018,550 and that, if this amount is achieved,
the maximum attorneys' fees and costs that class counsel would seek
is up to $13,254,638. This information is material to making an
informed judgment.
For these reasons, Judge Castel orders the parties may resubmit the
proposed Notice within 14 days.
A full-text copy of the Court's April 28, 2023 Order is available
at https://rb.gy/1s2d7 from Leagle.com.
NEW YORK, NY: More Time to Finalize Settlement in Payne Sought
--------------------------------------------------------------
In the class action lawsuit captioned as Payne et al v. De Blasio
et al., Case No. 1:20-cv-08924 (S.D.N.Y.), the Parties asks the
Court to enter an order staying any such motion practice sine die,
to allow the parties to finalize the settlement of this matter and
submit the settlement documents for court approval.
The parties respectfully request until June 30, 2023, to submit the
motion along with proposed class settlement documents.
This matter was brought as a putative class action for declaratory
relief and monetary damages. The proposed class will consist of
people arrested between May 28, 2020, and June 4, 2020, at specific
protest locations in New York City.
The parties have agreed to several terms including the amounts for
claims awards for putative class members, and to stay further
discovery pending submission of a settlement stipulation for the
Court's approval. The parties also intend to attempt to separately
resolve the Plaintiffs' reasonable costs and attorneys' fees. To be
clear, these settlement terms, and the agreed upon stay of
discovery, cover only the Sow case.
The parties have significant work to do to finalize this class
action settlement and are working together in good faith to
complete these tasks. This include negotiating the additional terms
of the settlement, preparing a full stipulation of settlement, a
motion for preliminary approval of the proposed settlement,
appointment of a class administrator, and certification of the
class pursuant to Fed. R. Civ. P. 23, and proposed class notices
and claim forms, among other things.
New York City comprises 5 boroughs sitting where the Hudson River
meets the Atlantic Ocean.
A copy of the Parties' motion dated April 28, 2023, is available
from PacerMonitor.com at https://bit.ly/4166y2F at no extra
charge.[CC]
The Plaintiffs are represented by:
Jonathan C. Moore, Esq.
David B. Rankin, Esq.
Luna Droubi, Esq.
Marc Arena, Esq.
Deema Azizi, Esq.
Rebecca Pattiz, Esq.
Katherine “Q” Adams, Esq.
Regina Powers, Esq.
BELDOCK LEVINE & HOFFMAN LLP
99 Park Avenue, PH/26th Floor
New York, NY 10016
Telephone: (212) 490-0400
Facsimile: (212) 277-5880
E-mail: jmoore@blhny.com
drankin@blhny.com
ldroubi@blhny.com
marena@blhny.com
dazizi@blhny.com
rpattiz@blhny.com
qadams@blhny.com
rpowers@blhny.com
- and -
Wylie Stecklow, Esq.
WYLIE STECKLOW PLLC
Carnegie Hall Tower
152 W. 57th Street, 8th Floor
NYC NY 10019
Telephone: (212) 566-8000
E-mail: Ecf@wylielaw.com
- and -
Gideon Orion Oliver, Esq.
GIDEON LAW
277 Broadway, Suite 1501
New York, NY 10007
Telephone: (718) 783-3682
Facsimile: (646) 349-2914
E-mail: Gideon@GideonLaw.com
- and -
Elena L. Cohen, Esq.
J. Remy Green, Esq.
Jessica Massimi, Esq.
COHEN&GREEN P.L.L.C.
1639 Centre Street, Suite 216
Ridgewood (Queens), NY 11385
Telephone: (929) 888-9480
Facsimile: (929) 888-9457
NOVA HOME: Savinova Suit Seeks to Certify Class of Homecare Workers
-------------------------------------------------------------------
In the class action lawsuit captioned as YELENA SAVINOVA, et. al.,
individually and on behalf of all others similarly situated, v.
NOVA HOME CARE, LLC, et. Al, Case No. 3:20-cv-01612-SVN (D. Conn.),
the Plaintiffs ask the Court to enter an order certifying a class
of:
"homecare workers who worked for Nova Home and Southern Home
Care
Services between October 21, 2018, and the present, and who had
any
workweeks split between Nova and Southern on the same live-in
assignments."
The Plaintiffs also seek to appoint Savinova as a class
epresentative, and appoint Zipin, Amster & Greenberg, LLC and
Lichten & Liss-Riordan, P.C. as class counsel.
Nova Home is a homecare agencies offers personal home care
assistance, caregiver services & private duty nursing.
A copy of the Plaintiffs' motion dated April 27, 2023, is available
from PacerMonitor.com at https://bit.ly/413AHzu at no extra
charge.[CC]
The Plaintiffs are represented by:
Mariusz Kurzyna, Esq.
ZIPIN, AMSTER & GREENBERG, LLC
8757 Georgia Avenue, Suite 400
Silver Spring, MD 20910
Telephone: (301) 587-9373
Facsimile: (240) 839-9142
E-mail: mkurzyna@zagfirm.com
- and -
Olena Savytska, Esq.
LICHTEN & LISS-RIORDAN, P.C.
729 Boylston Street, Suite 2000
Boston, MA 02116
Telephone: (617) 994-5800
E-mail: osavytska@llrlaw.com
O.H. BARKHORDAR: Carrasco Sues Over Failure to Pay Overtime Wages
-----------------------------------------------------------------
Charity Carrasco, as an aggrieved employee, and on behalf of all
other aggrieved employees under the Labor Code Private Attorneys'
General Act of 2004, v. O.H. BARKHORDAR D.D.S., INC., a California
corporation; O.H. BARKHORDAR DENTAL GROUP, INC., a California
corporation; OMID BARKHORDAR DENTAL CORPORATION, a California
corporation; OMID HAMID BARKHORDAR DENTAL INC., a California
corporation; BARKHORDAR DENTAL, INC., a California corporation;
OMID R BARKHORDAR DDS, INC., a California corporation; OMID RABI
BARKHORDAR D.D.S., INC., a California corporation; O.R. H.R.
BARKHORDAR DENTAL, INC., a California corporation; O.R. BARKHORDAR
D.D.S, INC., a California corporation; RABI BARKHORDAR DENTAL
GROUP, INC., a California corporation; OMID BARKHORDAR, an
individual; HAMID BARKHORDAR, an individual; and DOES 1 through 100
inclusive, Case No. 23STCV09512 (Cal. Super. Ct., Los Angeles Cty.,
April 28, 2023), is brought pursuant to the Labor Code Private
Attorneys General Act of 2004, codified at Labor Code section 2698
("PAGA"), against the Defendants for failure to pay overtime wages.
The Defendants had and have a policy or practice of failing to pay
overtime wages to Plaintiff and other Aggrieved Employees in the
State of California in violation of California state wage and hour
laws as a result of, without limitation, Plaintiff and other
Aggrieved Employees working over 8 hours per day, 40 hours per
week, and/or 7 straight workdays in a workweek without paying them
proper overtime wages, as a result of, without limitation, failing
to accurately track and/or pay for all minutes actually worked;
engaging, suffering, or permitting employees to work off the clock,
including, without limitation, by requiring employees: to remain
on-call, to suffer under Defendants' control to complete pre-shift
tasks before clocking in and post-shift tasks after clocking out,
to clock out for meal periods and continue working, to don and doff
uniforms and/or safety equipment off the clock, to attend company
meetings off the clock, to make phone calls off the clock; failing
to include all forms of remuneration, including non-discretionary
bonuses, incentive pay, meal allowances, and other forms of
remuneration into the regular rate of pay for the pay periods where
overtime was worked and the additional compensation was earned for
the purpose of calculating the overtime rate of pay; detrimental
rounding of employee time entries, editing and/or manipulation of
time entries to show less hours than actually worked, and for
paying straight pay instead of overtime pay, to the detriment of
Plaintiff and other Aggrieved Employees, says the complaint.
The Plaintiff was employed by the Defendants as a non-exempt
employee, with duties that included, but were not limited to,
placing orders, supervising responsibilities at the back office,
inventory, organizing documents, and various other technical office
job duties.
O.H. Barkhordar D.D.S., Inc., a California corporation is and a
corporation organized and existing under and by virtue of the laws
of the State of California.[BN]
The Plaintiff is represented by:
David D. Bibiyan, Esq.
Jeffrey D. Klein, Esq.
Felipe Gomez, Esq.
BIBIYAN LAW GROUP, P.C.
8484 Wilshire Boulevard, Suite 500
Beverly Hills, CA 90211
Phone: (310) 438-5555
Fax: (310) 300-1705
Email: david@tomorrawlaw.com
jeff@tomorrowlaw.com
felipe@tomorrowlaw.com
OLYMPIAN LABS: Class Cert Scheduling Order Entered in Zarzuela
--------------------------------------------------------------
In the class action lawsuit captioned as JOSE ZARZUELA,
Individually, and On Behalf of All Others Similarly Situated, v.
OLYMPIAN LABS, INC., Case No. 1:23-cv-02094-PGG-GWG (S.D.N.Y.), the
Hon. Judge Gabriel Gorenstein entered an order as follows:
a. Initial document requests and May 11, 2023
initial interrogatories will be
produced by:
b. The deadline for joining parties or May 25, 2023
filing amended pleadings is:
c. Depositions will take place: Aug. 25, 2023
d. All non-expert discovery will Aug. 25, 2023
be completed by:
e. Deadline for any request to Judge Nov. 13, 2023
Gardephe for permission to make a
motion for summary judgment:
f. Any motion for class certification Sept. 26,
2023
is returnable before Judge Gardephe
and shall be filed by:
The Plaintiff brings this class-action against the Defendant on
both an individual basis and on behalf of a nationwide class
against The Defendant for its violations of the Americans with
Disabilities Act (ADA) and New York City Human Rights Law (NYCHRL).
Specifically, the Defendant failed to design the website that it
owns and operates, olympianlabs.com, to be equally accessible to
the visually impaired as it is to sighted individuals. The
Defendant's website offers an array of goods and services that
consumers can purchase online, including vitamin and food
supplements. The Defendant's website also provides information
about itself and the products and services it sells.
The Plaintiff is legally blind and uses a screen-reader. The
Defendant's website is not properly designed and operated to be
read by screen-reading software. Because of this, The Plaintiff
encountered multiple barriers that denied The Plaintiff access to
the website equal to the access sighted individuals enjoy. The
Plaintiff could not, for example, learn about the goods and
services offered for purchase on The Defendant's website.
The Plaintiff alleges that the Defendant's website is a "place of
public accommodation" under the ADA and a "place or provider of
public accommodation" under the NYCHRL.
Olympian Labs manufactures and sells nutritional and natural health
supplementary products.
A copy of the Court's order dated April 27, 2023 is available from
PacerMonitor.com at https://bit.ly/410ZRPu at no extra charge.[CC]
The Plaintiff is represented by:
William Downes, Esq.
MIZRAHI KROUB LLP
225 Broadway 39th Floor
New York, NY 10007
Telephone: (212) 595-6200
E-mail: Wdownes@mizrahikroub.com
The Defendant is represented by:
David Stein, Esq.
STEIN & NIEPORENT LLP
1441 Broadway Suite 6090
New York, NY 10018
Telephone: (212) 308-3444
E-mail: Dstein@steinllp.com
OUTDOORSMANS RESALE: Castro Files ADA Suit in S.D. New York
-----------------------------------------------------------
A class action lawsuit has been filed against Outdoorsmans Resale,
Inc. The case is styled as Felix Castro, on behalf of himself and
all others similarly situated v. Outdoorsmans Resale, Inc., Case
No. 1:23-cv-03516-JMF (S.D.N.Y., April 27, 2023).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Outdoorsmans -- https://outdoorsmans.com/ -- offers outfitting
western hunters with quality optics, packs, and tripods since
1982.[BN]
The Plaintiff is represented by:
Noor Abou-Saab, I, Esq.
LAW OFFICE OF NOOR A. SAAB
380 North Broadway, Suite 300
Jericho, NY 11753
Phone: (718) 740-5060
Email: noorasaablaw@gmail.com
OVERSTOCK.COM INC: Continues to Defend Consolidated Securities Suit
-------------------------------------------------------------------
Overstock.Com Inc. disclosed in its Form 10-Q Report for the
quarterly period ending March 31, 2023 filed with the Securities
and Exchange Commission on May 2, 2023, that the Company continues
to defend the consolidated securities class suits in the United
States District Court of Utah.
On September 27, 2019, a purported securities class action lawsuit
was filed against the Company and its former Chief Executive
Officer and former Chief Financial Officer in the United States
District Court of Utah, alleging violations under Section 10(b),
Rule 10b-5, Section 20(a), and Section 20A of the Securities
Exchange Act of 1934, as amended (the "Exchange Act").
On October 8, 2019, October 17, 2019, October 31, 2019, and
November 20, 2019, four similar lawsuits were filed in the same
court also naming the Company and the above referenced former
executives as defendants, bringing similar claims under the
Exchange Act, and seeking similar relief.
These cases were consolidated into a single lawsuit in December
2019. The Court appointed The Mangrove Partners Master Fund Ltd. as
lead plaintiff in January 2020.
In March 2020, an amended consolidated complaint was filed against
the Company, its President, its former Chief Executive Officer, and
its former Chief Financial Officer.
The Company filed a motion to dismiss and, on September 28, 2020,
the court granted its motion and entered judgment in its favor.
The plaintiffs filed a motion to amend their complaint on October
23, 2020.
The United States District Court of Utah granted the plaintiffs'
motion to amend their complaint on January 6, 2021.
The plaintiffs filed their amended complaint on January 11, 2021.
The Company filed a motion to dismiss plaintiffs' amended
complaint, and on September 20, 2021, the court granted its motion
and entered judgment in its favor.
On October 18, 2021, the plaintiffs filed a Notice of Appeal,
appealing the ruling of the district court to the United States
Court of Appeals for the Tenth Circuit.
The Company is awaiting a ruling from the Tenth Circuit that heard
oral argument on the appeal on February 9, 2023.
No estimates of the possible losses or range of losses can be made
at this time. The Company intends to continue to vigorously defend
this consolidated action.
Overstock.com, Inc. operates as an online retailer in the United
States and internationally. The Company was formerly known as
D2-Discounts Direct and changed its name to Overstock.com, Inc. in
October 1999. Overstock.com, Inc. was founded in 1997 and is
headquartered in Midvale, Utah.
PELOTON INTERACTIVE: Court Denies Passman's Class Certification Bid
-------------------------------------------------------------------
In the case, ERIC PASSMAN and ISHMAEL ALVARADO, individually and on
behalf of all others similarly situated, Plaintiffs v. PELOTON
INTERACTIVE, INC., Defendant, Case No. 19-cv-11711 (LJL)
(S.D.N.Y.), Judge Lewis J. Liman of the U.S. District Court for the
Southern District of New York denies:
i. Peloton's motion to exclude the expert reports and
testimony of J. Michael Dennis and Colin B. Weir; and
ii. Named Plaintiffs Passman and Alvarado's motion for
class certification.
Named Plaintiffs Passman and Alvarado move, pursuant to Federal
Rule of Civil Procedure 23, for an order certifying the case as a
class action, appointing them as the Class Representatives, and
appointing the law firms of Keller Postman LLC, DeCello Levitt LLC,
and Ziglar Law Group, LLC, as the Class Counsel. The Defendant
moves for an order excluding the expert reports and testimony of
Dennis and Weir pursuant to Federal Rule of Evidence 702 and
Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993).
The parties engaged in discovery for the purpose of filing and
contesting the present motion for class certification and the
related motion to strike. The Named Plaintiffs bring the action
against the Defendant alleging violations of New York's consumer
fraud statutes, New York General Business Law ("NYGBL") Sections
349 and 350.
The Defendant is an exercise equipment and media company that sells
stationary bicycles and treadmills online, over the phone, and in
showrooms. In addition to selling the Peloton Bike and Peloton
Tread (collectively, "Peloton Hardware"), it also sells monthly
subscriptions, which allow subscribers to watch live and
pre-recorded (or "on-demand") fitness classes through Peloton
Hardware's built-in interactive touchscreens. Peloton also sells a
digital application that allows users to take classes on
non-Peloton Hardware.
Passman purchased a Peloton Bike and one-year Peloton Membership
directly from Defendant in early 2017. Alvarado purchased a used
Peloton Bike with his wife from a friend in January 2019 and
purchased a Peloton Membership.
The action stems from statements made by the Defendant on its
website and other media that it offered subscribers an
"ever-growing" or "growing" library of live and on-demand studio
classes. The Challenged Statement appeared in only a subset of
Peloton's advertisements and did not appear in any television
advertisements.
In April 2018, while it was making the Challenged Statement, the
Defendant received a cease-and-desist letter regarding its alleged
copyright infringement of songs appearing in classes in its
on-demand class library. In March 2019, several members of the
National Music Publishers' Association collectively filed a lawsuit
against the Defendant. On March 25, 2019, in response to that
lawsuit, the Defendant removed approximately 6,500 on-demand
classes from its library, leaving approximately 7,000 classes
available to its members.
The Named Plaintiffs bring the action on behalf of a class defined
as "all purchasers of the Peloton Hardware and/or the corresponding
Peloton Membership subscription from April 9, 2018 through March
25, 2019 [(the "Class Period")] in the State of New York." As
currently pleaded in the Third Amended Complaint, they allege that
the Defendant's representation that its library was "ever-growing"
was false and misleading, because, at the time it made the
Challenged Statement, it knew that it would be removing a large
proportion of its on-demand digital library. As a result, each of
the putative class members suffered injury caused by the Challenged
Statement by overpaying for Peloton Hardware and Peloton
Memberships.
The case was initiated by complaint in December 2019 by Eric
Fishon, Alicia Pearlman, and Patrick Yang, individually and on
behalf of all others similarly situated, bringing claims for
violations of NYGBL Sections 349 and 350. On Aug. 4, 2020, and
pursuant to an unopposed request, the Court ordered the voluntary
dismissal of Yang. On Nov. 9, 2020, the Court granted a motion to
dismiss the claims of Pearlman -- a Michigan resident -- without
prejudice because she lacked statutory standing under the New York
statute, but it denied a motion to dismiss Fishon's claims.
On Feb. 18, 2022, Named Plaintiffs Passman and Alvarado, previously
absent class members, filed the TAC. The Defendant moved to dismiss
the TAC pursuant to Federal Rule of Civil Procedure 12(b)(6) and
the Plaintiffs opposed that motion. On Aug. 11, 2022, the Court
denied the motion to dismiss the TAC.
On Oct. 17, 2022, the Named Plaintiffs filed this motion to certify
the class, supported by the declaration of Alex J. Dravillas, the
expert declarations of Dennis and Weir, and a memorandum of law. On
Nov. 14, 2022, the Defendant filed a memorandum of law in
opposition to the motion for class certification and its motion to
strike the Plaintiff's expert declarations and supporting memoranda
of law. On April 12, 2023, Judge Liman heard oral argument on the
motions.
Judge Liman first considers the Defendant's Daubert motion. The
Defendant argues that the opinions of Dennis and Weir are not
helpful to the trier of fact, irrelevant, and unreliable. It thus
moves to exclude the testimony of Dennis and Weir at the
class-certification stage. The Named Plaintiffs counter that the
expert testimony of Dennis and Weir is relevant, helpful to the
trier of fact, and reliable, and that the issues that the Defendant
raises about their testimony go to the weight of the evidence at
the merits stage, not the admissibility of the evidence at the
class-certification stage.
Dennis is Senior Vice President at the National Opinion Research
Center, a survey research organization. He conducted a consumer
perceptions survey to analyze whether the Defendant's alleged
misstatement and omission would be important to consumers. He also
conducted a price premium survey, also known as a conjoint survey,
to measure the extent to which the market-clearing price for
Peloton Bikes and Memberships would have been different in the
but-for scenario where Defendant did not use the "ever-growing
library" representation in its advertising and marketing.
Judge Liman holds that even if the Court were ultimately to
conclude that Dennis' model was inconsistent with the Named
Plaintiffs' theory of liability, the model nonetheless is relevant
at the class-certification stage. Dennis' analysis is helpful in
that regard; it permits the Court to address the question of
whether the Named Plaintiffs have put forward a workable model for
calculating damages and thus to determine whether Named Plaintiffs
have carried their burden of establishing predominance under Rule
23(b)(3). Judge Liman, thus, accepts Dennis' testimony regarding
his price-premium survey for that purpose.
With respect to Weir, the Plaintiffs' damages expert, Judge Liman
finds that Weir holds a Master of Business Administration degree
from Northeastern University and is the President of Economics and
Technology, Inc. Weir worked with Dennis to develop parts of his
price-premium survey. He also uses Dennis' survey data and the
historical sales of Peloton products to calculate damages. The
Defendant argues that Weir's testimony is inadmissible because Weir
derives his testimony from Dr. Dennis' flawed analysis and Weir's
damages calculations does not assist the trier of facts.
Judge Liman rejects both arguments at this stage. He already found
that Dennis' testimony will be helpful in its predominance
analysis. Because he considers Dennis' testimony, Judge Liman also
considers Weir's testimony for the limited purpose of determining
whether the Named Plaintiffs have carried their burden of
establishing predominance under Rule 23(b)(3). Weir compiled data
that the Court would need to conduct this grade-school arithmetic.
Thus, Judge Liman will not preclude Weir's testimony on that
basis.
Having resolved the Daubert motion, Judge Liman then turns to the
question of whether a class can be certified. The Defendant
challenges the motion, arguing that (1) the Named Plaintiffs are
inadequate and atypical class representatives; (2) the Named
Plaintiffs have failed to establish that common issues predominate;
and (3) proposed class counsel is inadequate.
Judge Liman examines each of Rule 23's requirements in turn and
concludes that the Named Plaintiffs have not carried their burden
of demonstrating that the requirements for class certification have
been met. He finds that (i) the parties do not dispute that the
numerosity requirements of Rule 23(a) have been satisfied; (ii)
questions of both materiality and falsity are common to the class;
(iii) the Named Plaintiffs' claims arise from the same course of
events and will make similar legal arguments as the other class
member; (iv) Alvarado has not demonstrated that he understands this
weighty responsibility or that he has the willingness or ability to
monitor class counsel; and (v) Passman is an adequate class
representative under Rule 23(a)(4).
And, because he finds the individual issues predominate over common
ones, Judge Liman concludes that Named the Plaintiffs have not
established that the purported class satisfies the predominance
requirement of Rule 23(b)(3).
For these reasons, Judge Liman denies (i) the Defendant's motion to
strike and (ii) the Named Plaintiffs' motion for class
certification. Because he finds that the parties' letter motions to
seal are consistent with the Court's prior sealing orders, he
grants the motions to seal.
The Clerk of Court is directed to close Docket Nos. 225, 226, 239,
240, 262.
A full-text copy of the Court's May 2, 2023 Opinion & Order is
available at https://rb.gy/il3w2 from Leagle.com.
PENUMBRA INC: Continues to Defend Labor Class Suit in California
----------------------------------------------------------------
Penumbra Inc. disclosed in its Form 10-Q Report for the quarterly
period ending March 31, 2023 filed with the Securities and Exchange
Commission on May 2, 2023, that the Company continues to defend
itself from a labor class suit in the Superior Court of the State
of California for the County of Alameda.
On April 7, 2023, a former contractor who had been retained by the
Company through a third party staffing agency filed a putative
class action lawsuit as well as a Private Attorney General Act
("PAGA") representative action complaint against the Company in the
Superior Court of the State of California for the County of
Alameda, on behalf of the contractor and similarly situated Company
contractors and employees in California, alleging various claims
pursuant to the California Labor Code related to wages, overtime,
meal and rest breaks, reimbursement of business expenses, wage
statements and records, and other similar allegations.
Additionally, on April 10, 2023, a current employee of the Company
filed a PAGA representative action complaint against the Company in
the Superior Court of the State of California for the County of
Alameda, on behalf of the employee and similarly situated Company
employees in California, alleging similar claims. The complaints
seek payment of various alleged unpaid wages, penalties, interest
and attorneys' fees in unspecified amounts.
The Company believes the claims lack merit, and intends to defend
itself vigorously.
Penumbra is a medical device company headquartered in Alameda,
California.[BN]
POKE FIDI: Seeks More Time to Oppose Yuwono Class Certification Bid
-------------------------------------------------------------------
In the class action lawsuit captioned as Yuwono v. Poke Fidi LLC,
et al., Case No. 1:22-cv-05052-JLR-JW (S.D.N.Y.), the Defendants
ask the Court to enter an order granting a four-week extension to
their deadline for filing its opposition to the Plaintiff’s
motion for conditional collective certification.
The current deadline for the Defendant's opposition is May 3, 2023.
The Defendants request an extension until May 31, 2023, to file
their opposition to The Plaintiff's motion. And under a revised
briefing schedule, the parties propose that the Plaintiffs deadline
to file their reply be set for June 14, 2023, with oral argument to
be rescheduled for a date convenient for the Court in the second
half of June.
A copy of the Defendants' motion dated April 27, 2023 is available
from PacerMonitor.com at https://bit.ly/3VrTAet at no extra
charge.[CC]
The Defendants are represented by:
Martin R. West II, Esq.
KENNEDYS
570 Lexington Avenue, 8th Floor
New York, NY 10022
Telephone: (212) 252-0004
Facsimile: (212) 832-4920
E-mail: Martin.West@kennedyslaw.com
PROCTER & GAMBLE: Meza Suit Transferred to S.D. Ohio
----------------------------------------------------
The case styled as Bertha Meza, individually and on behalf of all
others similarly situated v. THE PROCTER & GAMBLE COMPANY, Case No.
5:23-cv-00091 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 Ohio on April 28, 2023.
The District Court Clerk assigned Case No. 1:23-cv-00241-MWM-SKB to
the proceeding.
The nature of suit is stated as Contract Product Liability.
The Procter & Gamble Company -- http://www.pginvestor.com/-- is an
American multinational consumer goods corporation headquartered in
Cincinnati, Ohio.[BN]
The Plaintiff is represented by:
Jonas B. Jacobson (Cal. Bar No. 269912)
Simon Franzini (Cal. Bar No. 287631)
DOVEL & LUNER, LLP
201 Santa Monica Blvd., Suite 600
Santa Monica, CA 90401
Phone: (310) 656-7066
Facsimile: (310) 656-7069
Email: jonas@dovel.com
simon@dovel.com
The Defendant is represented by:
Ashley M. Simonsen
1999 Avenue of the Stars, Ste 3500
Los Angeles, CA 90067
Phone: (424) 332-4782
Fax: (424) 332-4749
Email: asimonsen@cov.com
- and -
Dillon H. Grimm
Henry Ben-Heng Liu
COVINGTON AND BURLING LLP
One CityCenter
850 10th Street NW
Washington, DC 20001
Phone: (202) 662-5057
Fax: (202) 662-6291
Email: dgrimm@cov.com
hliu@cov.com
PROGRESSIVE CASUALTY: Ct. Won't Modify Class Definition in Volino
-----------------------------------------------------------------
In the class action lawsuit captioned as DOMINICK VOLINO et al., v.
PROGRESSIVE CASUALTY INSURANCE CO. et al., Case No.
1:21-cv-06243-LGS (S.D.N.Y.), the Hon. Judge Lorna G. Schofield
entered an order denying the Plaintiffs request to modify the Class
definition set forth in its March 16, 2023, Opinion and Order
granting class certification.
The Court construes the Plaintiffs' pre-motion letter as a motion
for modification pursuant to Rule 23(c)(1), or, in the alternative,
a motion for reconsideration.
The Plaintiff's motion does not identify "an intervening change of
controlling law, the availability of new evidence, or the need to
correct a clear error or prevent manifest injustice."
Progressive Casualty provides personal, automobile, homeowner,
boat, renters, business, life, and health insurance services.
A copy of the Court's order dated April 27, 2023, is available from
PacerMonitor.com at https://bit.ly/3LUrrcA at no extra charge.[CC]
RENA WARE INTERNATIONAL: Brown Files ADA Suit in S.D. New York
--------------------------------------------------------------
A class action lawsuit has been filed against Rena Ware
International, Inc. The case is styled as Lamar Brown, on behalf of
himself and all others similarly situated v. Rena Ware
International, Inc., Case No. 1:23-cv-03600 (S.D.N.Y., April 28,
2023).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Rena Ware International, Inc. -- https://www.renaware.com/ --
manufactures cookware. The Company offers products including
skillets, cacerola, presure cookers, roaster, induction cookers,
air filters, cutlery, and juice extractors.[BN]
The Plaintiff is represented by:
Mars Khaimov, Esq.
10826 64th Avenue, Ste. 2nd Floor
Forest Hills, NY 11375
Phone: (917) 915-7415
Email: mars@khaimovlaw.com
RESTAURANT BRANDS: Continues to Defend Sherman Act Class Suit
-------------------------------------------------------------
Restaurant Brands International Inc. disclosed in its Form 10-Q
Report for the quarterly period ending March 31, 2023 filed with
the Securities and Exchange Commission on May 2, 2023, that the
Company continues to defend the consolidated Sherman Act class suit
in the U.S. District Court for the Southern District of Florida.
On October 5, 2018, a class action complaint was filed against
Burger King Worldwide, Inc. ("BKW") and Burger King Company,
successor in interest, ("BKC") in the U.S. District Court for the
Southern District of Florida by Jarvis Arrington, individually and
on behalf of all others similarly situated.
On October 18, 2018, a second class action complaint was filed
against RBI, BKW and BKC in the U.S. District Court for the
Southern District of Florida by Monique Michel, individually and on
behalf of all others similarly situated.
On October 31, 2018, a third class action complaint was filed
against BKC and BKW in the U.S. District Court for the Southern
District of Florida by Geneva Blanchard and Tiffany Miller,
individually and on behalf of all others similarly situated.
On November 2, 2018, a fourth class action complaint was filed
against RBI, BKW and BKC in the U.S. District Court for the
Southern District of Florida by Sandra Munster, individually and on
behalf of all others similarly situated.
These complaints have been consolidated and allege that the
defendants violated Section 1 of the Sherman Act by incorporating
an employee no-solicitation and no-hiring clause in the standard
form franchise agreement all Burger King franchisees are required
to sign. Each plaintiff seeks injunctive relief and damages for
himself or herself and other members of the class.
On March 24, 2020, the Court granted BKC's motion to dismiss for
failure to state a claim and on April 20, 2020 the plaintiffs filed
a motion for leave to amend their complaint.
On April 27, 2020, BKC filed a motion opposing the motion for leave
to amend.
The court denied the plaintiffs motion for leave to amend their
complaint in August 2020 and the plaintiffs appealed this ruling.
In August 2022, the federal appellate court reversed the lower
court's decision to dismiss the case and remanded the case to the
lower court for further proceedings.
While the Company currently believes these claims are without
merit, it is unable to predict the ultimate outcome of this case or
estimate the range of possible loss, if any.
Restaurant Brands International, Inc. is a fast food restaurant
company based in Oakville, Canada.
REVENTICS LLC: Loeb Files Suit in D. Colorado
---------------------------------------------
A class action lawsuit has been filed against Reventics LLC, et al.
The case is styled as Roger Loeb, Individually and on behalf of all
others similarly situated v. Reventics LLC, Regional One Health,
Case No. 1:23-cv-01083 (D. Colo., April 28, 2023).
The nature of suit is stated as Other Fraud.
Reventics -- https://reventics.com/ -- delivers Provider Engagement
Solutions that enhance physician reimbursement and compliance while
improving clinical quality measures.[BN]
The Plaintiff is represented by:
Amber Love Schubert, Esq.
SCHUBERT JONCKHEER & KOLBE LLP
2001 Union Street, Suite 200
San Francisco, CA 94123
Phone: (415) 788-4220
Fax: (415) 788-0161
Email: aschubert@sjk.law
ROCKWELL COLLINS: Filing of Class Cert Bid Due May 24
-----------------------------------------------------
In the class action lawsuit captioned as ISRAEL ALVARADO, an
individual, and on behalf of himself and on behalf of all persons
similarly situated, v. ROCKWELL COLLINS, INC., a Corporation;
AERONAUTICAL RADIO, INC., a Corporation; RAYTHEON TECHNOLOGIES
CORPORATION, a Corporation, Case No. 2:23-cv-00400-JFW-JC (C.D.
Cal.), the Hon. Judge e John F. Walter entered an order on joint
stipulation to continue the Plaintiff's class certification motion
deadline as follows:
1. The May 24, 2023, deadline on the Plaintiff's class
certification motion is continued for 90-days, to August 22,
2023.
2. All other deadlines shall remain unchanged.
3. The single continuance and all other pre-trial and trial
deadlines are summarized below:
-- Sept. 11, 2023 [unchanged] Settlement Conference /
Mediation Deadline
-- Sept. 15, 2023 [unchanged] Deadline to File Joint
Report
re Settlement Conference /
Mediation
-- Dec. 22, 2023 [unchanged] Discovery Cutoff
-- May 24, 2023 Deadline for Class
Certification
-- Aug. 22, 2023 Motion Filing
-- Jan. 22, 2024 [unchanged] Last Day to Hear Motions
-- Feb. 28, 2024 [unchanged] Deadline to Submit
Pre-Trial
Conf.
Rockwell Collins is a manufacturer and supplier of aviation and
integrated solutions for both commercial and government
applications.
A copy of the Court's order dated April 26, 2023 is available from
PacerMonitor.com at https://bit.ly/3ASSjne at no extra charge.[CC]
SAN JOSE, CA: Plaintiffs Seek Reconsideration of April 7 Order
--------------------------------------------------------------
In the class action lawsuit captioned as NAACP OF SAN JOSE/SILICON
VALLEY, et al., v. CITY OF SAN JOSE, et al., Case No.
4:21-cv-01705-PJH (C.D. Cal.), the Plaintiffs move for leave to
file a motion for reconsideration of the Court's April 7, 2023
Order denying the Plaintiffs' motion for class certification of
their injunctive class.
In the April 7, 2023, Order, the Court denied certification of the
injunctive relief class for two reasons:
1) lack of specificity about the type of injunctive relief
sought;
and
2) failure to seek injunctive relief against the proper party,
i.e. only command personnel.
San Jose is a large city surrounded by rolling hills in Silicon
Valley, a major technology hub in California's Bay Area.
A copy of the Plaintiffs' motion dated April 27, 2023 is available
from PacerMonitor.com at https://bit.ly/3LSVHET at no extra
charge.[CC]
The Plaintiffs are represented by:
Rachel Lederman, Esq.
RACHEL LEDERMAN & ALEXSIS C. BEACH, ATTORNEYS
San Francisco, CA 94140-0339
Telephone: (415) 282-9300
E-mail: rachel@sfbla.com
- and -
Tifanei Ressl-Moyer, Esq.
LAWYERS’ COMMITTEE FOR CIVIL RIGHTS OF
SAN FRANCISCO BAY AREA
131 Steuart Street
San Francisco, CA 94105
Telephone: (415) 543-9444
E-mail: tresslmoyer@lccrsf.org
- and -
R. Michael Flynn, Esq.
FLYNN LAW OFFICE
1720 Broadway, Ste 430
Oakland CA 94612
Telephone: (510) 893-3226
E-mail: michael@flo-law.com
- and -
James B. Chanin, Esq.
LAW OFFICES OF JAMES B. CHANIN
3050 Shattuck Avenue
Berkeley, CA 94705
Telephone: (510) 848-4752, Ext. 2
E-mail: jbcofc@aol.com
- and -
Chris Johnson, Esq.
Alicia J. Donahue, Esq.
Tammy B. Webb, Esq.
SHOOK, HARDY & BACON L.L.P.
555 Mission Street, Suite 2300
San Francisco, CA 94105
Telephone: (415) 544-1900
E-mail: cjohnson@shb.com
adonahue@shb.com
- and -
Mitchell Engel, Esq.
SHOOK, HARDY & BACON L.L.P.
2555 Grand Blvd.
Kansas City, MO 64108-2613
Telephone: (816) 474-6550
E-mail: mengel@shb.com
SAVAGE SERVICES: Vargas Sues Over Unpaid Compensations
------------------------------------------------------
Manuel Pardo Vargas, individually, and on behalf of all other
aggrieved employees v. SAVAGE SERVICES CORPORATION, a Utah
corporation; and DOES 1-20, inclusive, Case No. 23LBCV00782 (Cal.
Super. Ct., Los Angeles Cty., April 28, 2023), is brought seeks
penalties under Labor Code 2698, on behalf of the general public as
private attorney general and all other aggrieved employees and for
the Defendants violated various provisions of the California Labor
Code.
The Defendants implemented policies and practices which led to
unpaid wages resulting from Defendant's: failure to accurately pay
overtime wages, failure to pay minimum wages failure to provide
meal periods before the end of the fifth hour worked and failure to
pay an additional hour's of pay in lieu of providing a meal period
before the end of the fifth hour worked; failure to authorize and
permit rest breaks for every four hours or major fraction thereof
worked and failure to pay an additional hour's of pay in lieu of
providing a rest period; failing to pay all wages earned and owed
upon separation from Defendant's employ; and failing to provide
accurate itemized wage statements; knowingly and intentionally
failing to maintain accurate and complete records; and failure to
indemnify for necessary business expenses, says the complaint.
The Plaintiff was employed as a chauffeur at Defendants'
Wilmington, California location in Los Angeles County with duties
including loading and driving trucks for the sake of Defendants'
customers.
The Defendant provides material management and transportation
services throughout California, including in Los Angeles County,
and employs numerous non-exempt employees at each of these
locations.[BN]
The Plaintiff is represented by:
Ronald W. Makarem, Esq.
Daniel J. Bass, Esq.
MAKAREM & ASSOCIATES APLC
11601 Wilshire Boulevard, Suite 2440
Los Angeles, CA 90025-1760
Phone: (310) 312-0299
Fax: (310) 312-0296
SCHWAN'S CONSUMER: More Time to File Class Certification Bid Sought
-------------------------------------------------------------------
In the class action lawsuit captioned as NIYA MARTIN, INDIVIDUALLY
AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED, v. SCHWAN'S
CONSUMER BRANDS, INC., Case No. 4:22-cv-00469-MW-MAF (N.D. Fla.),
the Parties Stipulate to extend deadline to file motion for class
certification.
1. The Plaintiff shall be relieved of the Rule 23.1 deadline to
file a motion to certify the class and supporting memorandum
and
evidence.
The deadline for the Plaintiff to file a motion to certify
the
class shall be re-set as part of the Court's Final Scheduling
Order to be issued following the Report of the Parties under
Fed. R. Civ. P. 16(f).
2. The Plaintiff's motion for class certification is withdrawn,
without prejudice to its re-filing in accordance with the briefing
schedule adopted in the Court’s Final Scheduling Order.
A copy of the Court's order dated April 26, 2023 is available from
PacerMonitor.com at https://bit.ly/42duQZA at no extra charge.[CC]
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
The Defendant is represented by:
Stephen P. Safranski, Esq.
Geoffrey H. Kozen, Esq.
Heather R. Chang, Esq.
ROBINS KAPLAN LLP
800 LaSalle Avenue, Suite 2800
Minneapolis, MN 55402
Telephone: (612) 349-8500
Facsimile: (612) 339-4181
E-mail: SSafranski@RobinsKaplan.com
GKozen@RobinsKaplan.com
HChang@RobinsKaplan.com
SELECT BRANDS: Hernandez Files ADA Suit in S.D. New York
--------------------------------------------------------
A class action lawsuit has been filed against Select Brands, Inc.
The case is styled as Janelys Hernandez, on behalf of herself and
all others similarly situated v. Select Brands, Inc., Case No.
1:23-cv-03529 (S.D.N.Y., April 27, 2023).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Select Brands -- https://selectbrands.com/ -- designs and sells
electric kitchen appliances.[BN]
The Plaintiff is represented by:
Noor Abou-Saab, I, Esq.
LAW OFFICE OF NOOR A. SAAB
380 North Broadway, Suite 300
Jericho, NY 11753
Phone: (718) 740-5060
Email: noorasaablaw@gmail.com
SERTA SIMMONS BEDDING: Hernandez Files ADA Suit in S.D. New York
----------------------------------------------------------------
A class action lawsuit has been filed against Serta Simmons
Bedding, LLC. The case is styled as Janelys Hernandez, on behalf of
herself and all others similarly situated v. Serta Simmons Bedding,
LLC, Case No. 1:23-cv-03534 (S.D.N.Y., April 27, 2023).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Serta Simmons Bedding, LLC -- https://sertasimmons.com/ -- is the
world's leading producer of mattresses and sleep experiences.[BN]
The Plaintiff is represented by:
Noor Abou-Saab, I, Esq.
LAW OFFICE OF NOOR A. SAAB
380 North Broadway, Suite 300
Jericho, NY 11753
Phone: (718) 740-5060
Email: noorasaablaw@gmail.com
SHAMROCK FOODS: Bell Suit Removed to S.D. California
----------------------------------------------------
The case captioned as Jason Bell, individually and on behalf of all
others similarly situated v. SHAMROCK FOODS COMPANY, a corporation;
and DOES 1 through 100, inclusive, Case No.
37-2023-00012325-CU-OE-CTL was removed from the Superior Court of
the California Superior Court, County of San Diego, to the United
States District Court for the Southern District of California on
April 27, 2023, and assigned Case No. 3:23-cv-00779-DMS-MSB.
The Complaint purports to state causes of action on behalf of
Plaintiff and the putative class members for: failure to provide
meal periods pursuant to Cal. Labor Code; failure to provide rest
breaks pursuant to Cal. Labor Code; failure to pay all wages
pursuant to Cal. Labor Code; failure to pay overtime pursuant to
Cal. Labor Code; failure to provide accurate wage statements
pursuant to Cal. Lab. Code; failure to pay all wages twice a month
pursuant to Cal. Labor Code; failure to pay all wages upon
termination/resignation pursuant to Cal. Labor Code; and unfair
business practices pursuant to Cal. Bus. & Prof. Code.[BN]
The Defendants are represented by:
Andrew J. Sommer, Esq.
CONN MACIEL CAREY LLP
111 West Ocean Blvd., 4th Floor
Long Beach, CA 90802
Phone: (415) 268-8894
Facsimile: (415) 268-8889
Email: asommer@connmaciel.com
- and -
Megan S. Shaked, Esq.
CONN MACIEL CAREY LLP
One Sansome Street, Suite 3500
San Francisco, CA 94104
Phone: (415) 268-8882
Facsimile: (415) 268-8889
Email: mshaked@connmaciel.com
SPARK PRETTY: Hwang Files ADA Suit in E.D. New York
---------------------------------------------------
A class action lawsuit has been filed against Spark Pretty, LLC.
The case is styled as Jenny Hwang, on behalf of herself and all
others similarly situated v. Spark Pretty, LLC, Case No.
1:23-cv-03229 (E.D.N.Y., April 28, 2023).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
SPARK PRETTY -- http://www.sparkpretty.com/-- is a visual
lifestyle brand and store by artist and stylist, Amanda Dolan.[BN]
The Plaintiff is represented by:
Mars Khaimov, Esq.
14749 71st Ave.
Flushing, NY 11367
Phone: (917) 915-7415
Email: mars@khaimovlaw.com
SPEEDWAY LLC: Petroski Suit Removed to E.D. Pennsylvania
--------------------------------------------------------
The case captioned as Sharon Petroski, on behalf of herself and
others similarly situated v. SPEEDWAY LLC, Case No. 230302703 was
removed from the Court of Common Pleas of Philadelphia County,
Pennsylvania, to the United States District Court for the Eastern
District of Pennsylvania on April 28, 2023, and assigned Case No.
2:23-cv-01628.
In her Complaint, Plaintiff claims Speedway violated the
Philadelphia Fair Workweek Employment Standards ("Fair Workweek
Law"), by allegedly: failing to provide written good faith
estimates; failing to provide advance notice of work schedules;
failing to pay schedule change premiums ("Predictability Pay");
failing to provide sufficient rest between work shifts; and failing
to offer newly available shifts to existing employees before hiring
new ones. She also alleges that she was wrongfully terminated in
violation of the Law for engaging in activity protected by the
Law.[BN]
The Defendants are represented by:
Jacob Oslick, Esq.
SEYFARTH SHAW LLP
620 Eighth Avenue
New York, New York 10018
Phone: (212) 218-5500
Email: joslick@seyfarth.com
STERLING INFOSYSTEMS: Filing of Class Cert Bid Due Jan. 26, 2024
----------------------------------------------------------------
In the class action lawsuit captioned as ANDRE HERRING-DANCY,
individually and on behalf of all others, v. STERLING INFOSYSTEMS,
INC., Case No. 5:23-cv-06034-FJG (W.D. Mo.), the Hon. Judge
Fernando J. Gaitan, Jr. entered a scheduling order as follows:
1. Close of Phase I discovery December 22, 2023
2. Motion to join additional parties July 28, 2023
3. Motion to amend pleadings July 28, 2023
4. Motion for Class Certification January 26, 2024
5. Asserting party's expert report(s) October 3, 2023
Defending party's expert report(s) November 3, 2023
Rebuttal report(s) December 1, 2023
Challenges/Daubert motions January 26, 2024
6. Status reports November 7, 2023
Sterling Infosystems provides human resource services.
A copy of the Court's order dated April 26, 2023 is available from
PacerMonitor.com at https://bit.ly/413yAf2 at no extra charge.[CC]
SUBWAY RESTAURANTS: Stay on Discovery Dispute in Amin Suit Lifted
-----------------------------------------------------------------
In the case, NILIMA AMIN, et al., Plaintiffs v. SUBWAY RESTAURANTS,
INC., et al., Defendants, Case No. 21-cv-00498-JST (LJC) (N.D.
Cal.), Judge Lisa J. Cisneros of the U.S. District Court for the
Northern District of California lifts the stay on the parties'
discovery dispute and denies the Plaintiff's requests to set aside
deemed admissions and waivers of objections without prejudice.
In this putative class action, the parties have a pending discovery
dispute. Amin requests that the Court sets aside deemed admissions
and her waiver of objections to various discovery requests that the
Defendants served on her, and to which she served late responses.
After a hearing on the matter, the Court stayed resolution of the
dispute to permit the Plaintiff to file a motion to dismiss
pursuant to Rule 41(a) of the Federal Rules of Civil Procedure.
Amin filed her Motion to Dismiss by the Court's deadline. The Court
has set a hearing on the motion to dismiss for July 27, 2023, after
the deadline for the Plaintiff's motion for class certification and
other related deadlines.
Considering the posture of the case and the Plaintiff's desire to
dismiss the action, Judge Cisneros lifts the stay on the parties'
discovery dispute and denies the Plaintiff's requests to set aside
deemed admissions and waivers of objections without prejudice. The
parties may refile their joint discovery letter, or a similar
letter presenting same dispute, if the Plaintiff's Motion to
Dismiss is denied.
A full-text copy of the Court's April 28, 2023 Order is available
at https://rb.gy/r4fnu from Leagle.com.
SUGAR COOKIES INC: Hwang Files ADA Suit in E.D. New York
--------------------------------------------------------
A class action lawsuit has been filed against Sugar Cookies, Inc.
The case is styled as Jenny Hwang, on behalf of herself and all
others similarly situated v. Sugar Cookies, Inc., Case No.
1:23-cv-03232 (E.D.N.Y., April 28, 2023).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Sugar Cookies -- https://www.sugarcookiesnyc.com/ -- is a luxury
lingerie boutique founded in 2008 that specializes in exquisite
French lingerie.[BN]
The Plaintiff is represented by:
Mars Khaimov, Esq.
14749 71st Ave.
Flushing, NY 11367
Phone: (917) 915-7415
Email: mars@khaimovlaw.com
SYNERGY CHC CORP: Gonzales Suit Removed to C.D. California
----------------------------------------------------------
The case is styled as Geneva Gonzales, Ruth Martin, individually
and on behalf of others similarly situated v. Synergy CHC Corp.,
Does 1 through 10, inclusive, Case No. 23STCV05927 was removed from
the Los Angeles County Superior Court, to the U.S. District Court
for the Central District of California on April 28, 2023.
The District Court Clerk assigned Case No. 2:23-cv-03245-FMO-MAAto
the proceeding.
The nature of suit is stated as Other P.I. for Personal Injury.
Synergy CHC Corp. -- https://synergychc.com/ -- is a consumer
health care & beauty company that is in the process of building a
portfolio of best-in-class consumer product brands.[BN]
The Plaintiffs are represented by:
Scott J. Ferrell, Esq.
Victoria C. Knowles, Esq.
PACIFIC TRIAL ATTORNEYS APC
4100 Newport Place Drive Suite 800
Newport Beach, CA 92660
Phone: (949) 706-6464
Fax: (949) 706-6469
Email: sferrell@pacifictrialattorneys.com
vknowles@pacifictrialattorneys.com
The Defendants are represented by:
Daniel Scott Silverman, Esq.
Bryan J. Weintrop, Esq.
VENABLE LLP
2049 Century Park East Suite 2300
Los Angeles, CA 90067
Phone: (310) 229-9900
Fax: (310) 229-9901
Email: dsilverman@venable.com
bjweintrop@venable.com
THERALOGIX LLC: Hernandez Files ADA Suit in S.D. New York
---------------------------------------------------------
A class action lawsuit has been filed against Theralogix, LLC. The
case is styled as Janelys Hernandez, on behalf of herself and all
others similarly situated v. Theralogix, LLC, Case No.
1:23-cv-03538 (S.D.N.Y., April 27, 2023).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Theralogix -- https://theralogix.com/ -- offers vitamins &
supplements that are high-quality, research-based & NSF
certified.[BN]
The Plaintiff is represented by:
Noor Abou-Saab, I, Esq.
LAW OFFICE OF NOOR A. SAAB
380 North Broadway, Suite 300
Jericho, NY 11753
Phone: (718) 740-5060
Email: noorasaablaw@gmail.com
TIVITY HEALTH: Class Cert Status Conference Set for May 22
-----------------------------------------------------------
In the class action lawsuit captioned as ROBERT STROUGO,
Individually and on Behalf of All Others Similarly Situated, v.
TIVITY HEALTH, INC., et al., Case No. 3:20-cv-00165 (M.D. Tenn.),
the Hon. Judge Waverly D. Crenshaw, Jr. entered an order setting
status conference on Plaintiff's motion for revised order on his
motion for class certification on May 22, 2023.
Tivity is a healthcare service provider that offers nutrition,
fitness and social connection solutions.
A copy of the Court's order dated April 26, 2023 is available from
PacerMonitor.com at https://bit.ly/3NF1mj9 at no extra charge.[CC]
TORRANCE REFINING: White Suit Removed to C.D. California
--------------------------------------------------------
The case is styled as Jacqueline White, individually and on behalf
of all others similarly situated v. Torrance Refining Company LLC,
1 through 20, inclusive, Case No. 23STCV02967 was removed from the
Los Angeles County Superior Court, to the U.S. District Court for
the Central District of California on April 27, 2023.
The District Court Clerk assigned Case No. 2:23-cv-03216-GW-PVC to
the proceeding.
The nature of suit is stated as Other Labor for Labor/Mgmnt.
Relations.
Torrance Refining Company LLC -- https://torrancerefinery.com/ --
is a refinery industry. The Company produces a range of products
including distillate and residual fuel oils, gasoline, kerosene,
and lubricants.[BN]
The Plaintiff is represented by:
Jessica L. Campbell, Esq.
Kashif Haque, Esq.
Samuel A Wong, Esq.
AEGIS LAW FIRM
9811 Irvine Center Dr., Ste. 100
Irvine, CA 92618
Phone: 949-379-6250
Fax: (949) 379-6251
Email: jcampbell@aegislawfirm.com
khaque@aegislawfirm.com
swong@aegislawfirm.com
The Defendants are represented by:
Gary T. Lafayette, Esq.
George Martin Velez, Esq.
LAFAYETTE AND KUMAGAI LLP
1300 Clay Street Suite 810
Oakland, CA 94612
Phone: (415) 357-4600
Fax: (415) 357-4605
Email: glafayette@lkclaw.com
mvelez@lkclaw.com
TRANSAMERICA LIFE: Ninth Circuit Affirms Dismissal of Clark Suit
----------------------------------------------------------------
In the case, SHERYL CLARK, Plaintiff-Appellant v. TRANSAMERICA LIFE
INSURANCE COMPANY, Defendant-Appellee, Case No. 20-16756 (9th
Cir.), the U.S. Court of Appeals for the Ninth Circuit affirms the
district court's dismissal of Clark's complaint for failure to
state a claim and its denial of her motion for leave to amend her
complaint.
For 26 years, Clark's mother, Delaine Stowell, paid a monthly
premium to the JC Penney Corp. for life insurance coverage. The JC
Penney Life Insurance Co. -- now, the Transamerica Life Insurance
Co. -- issued and delivered the policy to the JC Penney Corp. in
Illinois.
Stowell received a certificate of insurance, as required under the
Policy, which identified her as the "insured" and the JC Penney
Corp. as the "policyholder." In 2018, she missed a payment and
shortly thereafter passed away. After Transamerica initially denied
Clark's claim for benefits, she filed a class action complaint,
alleging violations of Cal. Ins. Code Sections 10113.71 and
10113.72, which require, among other things, a 60-day grace period
and notice before the termination of an insurance policy issued or
delivered in California for nonpayment of a premium.
Clark appeals the district court's dismissal of her complaint for
failure to state a claim under Federal Rule of Civil Procedure
12(b)(6) and its denial of her motion for leave to amend her
complaint.
The Ninth Circuit affirms, holding that the district court did not
err in dismissing Clark's complaint. It explains that the
California statutes only apply to policies issued or delivered in
California. There is no dispute that the Policy was issued and
delivered in Illinois and the Certificate was delivered in
California. The sole question is whether the Certificate is part of
the Policy or merely reflects evidence of insurance.
Under federal and California precedent, a certificate is part of a
policy -- i.e., the contract of insurance -- when it contains terms
and conditions that differ from the master policy. This precedent
is consistent with the California Insurance Code, under which a
certificate that does not "amend, extend or alter the coverage
afforded by" an insurance policy is only "evidence of insurance."
In the case, the Ninth Circuit points out that the Certificate is
not part of the Policy because the Certificate, on its face, does
not alter or add to substantive terms of the Policy. Indeed, the
Certificate issued to Stowell reflects that it is "not part of the
policy but evidence of the insurance provided under the policy" and
that "the policy and any attachments are the entire contract of
insurance."
Because any amendment would be futile, the Ninth Circuit holds that
the district court did not err in denying Clark's motion for leave
to amend.
A full-text copy of the Court's April 28, 2023 Memorandum is
available at https://rb.gy/p5j1b from Leagle.com.
TWITTER INC: Rodriguez's Individual Claims Sent to Arbitration
--------------------------------------------------------------
In the case, FRANCISCO RODRIGUEZ, Plaintiff v. TWITTER, INC., et
al., Defendants, Case No. 3:22-cv-07222-JD (N.D. Cal.), Judge James
Donato of the U.S. District Court for the Northern District of
California grants Twitter and Magnit, LLC's motion an order
compelling Rodriguez's individual claims to arbitration pursuant to
the parties' arbitration agreement and the Federal Arbitration
Act.
Plaintiff Rodriguez sued Defendants Twitter and Magnit, LLC, f/k/a
PRO Unlimited, Inc., on behalf of himself and a putative class of
other employees who were employed by Twitter through Magnit, a
payroll administration company. He alleges that recent layoffs by
Twitter violated federal and state laws. He also seeks to recover
civil penalties on behalf of California for California Labor Code
violations suffered by himself and other employees under
California's Private Attorneys General Act (PAGA), Cal. Lab. Code
Section 2698 et seq.
In November 2021, as a condition of his employment with Magnit,
Rodriguez signed an arbitration agreement. The agreement states
that it is governed by the FAA. It commits the parties to the
resolution by binding arbitration of all claims or causes of action
that Rodriguez may have against Magnit or any of its clients for
whom he performed work. The agreement includes a third-party
beneficiary clause that explicitly states that it is intended to
also inure to the benefit of Magnit's clients for whom Rodriguez
performed work to the extent an employment dispute arises between
Rodriguez and such client and involves claims covered by the
Agreement. Twitter is a client of Magnit and Rodriguez performed
work for Twitter that was "indistinguishable" from the work done by
employees who were employed directly by Twitter.
Twitter and Magnit ask for an order compelling Rodriguez's
individual claims to arbitration pursuant to the parties'
arbitration agreement and the FAA. Rodriguez filed oppositions.
Judge Donato holds that Rodriguez cites no authority, binding on
the Court, for the proposition that he may establish a waiver under
the circumstances. Turning to the arbitration agreement itself,
Judge Donato finds that Rodriguez does not present any arguments
pertaining to his non-PAGA individual claims, which are ordered to
arbitration, or his putative class claims, which he has waived the
ability to pursue through his arbitration agreement. The threshold
question raised by Rodriguez's objections is whether the
arbitration agreement excludes PAGA claims from the scope of
covered claims.
Judge Donato holds that Rodriguez's PAGA claims are plainly within
the scope of covered claims. Because compelling the representative
portion of Rodriguez's PAGA claim to arbitration would be
tantamount to waiver, the parties converge on the same conclusion:
Rodriguez's representative PAGA claims cannot be compelled to
arbitration.
The procedural fate of Rodriguez's representative PAGA claims is
the remaining point of contention. Twitter and Magnit say that once
Rodriguez's individual PAGA claims are sent to arbitration, the
representative claims should be dismissed for lack of statutory
standing. Rodriguez suggests that California courts have already
had the last word and also notes that this precise issue has been
teed up before the California Supreme Court in Adolph v. Uber
Technologies, No. S274671, where it has been fully briefed.
Considering these developments, Judge Donato holds that prudence
and federalism counsel in favor of waiting on a decision in Adolph.
A decision by the California Supreme Court, one way or the other,
will bring clarity to the situation. Consequently, Rodriguez's
representative PAGA claims are stayed pending the disposition in
Adolph. Further proceedings will be ordered as circumstances
warrant.
In view of the foregoing, the claims of Rodriguez are ordered to
arbitration on an individual basis, as stated in James Donato's
order. Rodriguez's sole remaining representative PAGA claims are
stayed pending further order. The parties are directed to provide a
joint status report every 90 days on Adolph.
A full-text copy of the Court's April 28, 2023 Order is available
at https://rb.gy/plje9 from Leagle.com.
TWITTER INC: Seeks to Strike Class Action Claims & Allegations
--------------------------------------------------------------
In the class action lawsuit captioned as RICHARD JACKSON, JULIE
BRIGGS, and GREGG BUCHWALTER, Individually And On Behalf Of All
Others Similarly Situated, v. TWITTER, INC., a Delaware
corporation, et al., Case No. 2:22-cv-09438-AB-MAA (C.D. Cal.),
Twitter moves the Court, pursuant to Federal Rules of Civil
Procedure 12(f) and 23(d)(1)(D), to strike the Plaintiffs' class
action claims and allegations.
Specifically, Twitter moves for an order striking the class action
claims and allegations from the Complaint, including but not
limited to the following:
1. The "Class Action Allegations" section, starting at
paragraph
83 and ending at paragraph 95;
2. All paragraphs seeking to recover on behalf of the putative
class, including paragraphs 38, 60, 382, 384-391, 393,
397-401,
and 404;
3. All paragraphs referencing the "Putative Class" or the
"Class,"
including paragraphs 16, 30, 31, 34-37, 47, 57, 58, and 79;
4. Prayer for relief Paragraphs 1-6.
First, the Plaintiffs allege that Twitter, along with defendants
Google, LLC, Alphabet, Inc., and YouTube, Inc., engaged in a
censorship scheme in which they labeled certain content as
"dis-information," "misinformation, " and/or "mal-information, "
and then suppressed or censored such content in order to "affect
the election's outcome in favor of the Democrats. "
Specifically, the Internet Platform the Defendants allegedly
censored posts related to the "Hunter Biden laptop story, " the
lab-leak theory of COVID-19's origin, the efficacy of mask mandates
and COVID-19 lockdowns, and the security of voting by mail so that
Democratic viewpoints were predominantly available on these
topics.
The Plaintiffs allege that this censorship infringed on their
rights to "freedom of expression" and freedom "to be exposed to
free expression on such platforms."
The Plaintiffs contend that the Internet Platform the Defendants
were able to perpetrate this alleged censorship by terminating
speakers' accounts, imposing warnings about disfavored speech,
"shadow banning" speakers, "demonetizing" content, adjusting
algorithms to suppress speakers, placing warning labels on content,
and otherwise suppressing or censoring content.
The Defendants include GOOGLE, LLC, a limited liability company;
ALPHABET, INC., a Delaware corporation; META PLATFORMS, INC., a
corporation doing business as "META" and "FACEBOOK, INC. ";
INSTAGRAM, INC., a Delaware corporation; AMAZON INC., a Delaware
corporation; YOUTUBE INC., a Delaware corporation; APPLE, INC., a
Delaware corporation; AMERICAN FEDERATION OF TEACHERS; NATIONAL
EDUCATION ASSOCIATION; NATIONAL SCHOOL BOARD ASSOCIATION; DNC
SERVICES CORPORATION, a corporation doing business nationwide as,
"THE DEMOCRATIC NATIONAL COMMITTEE" OR "DNC, "
Twitter was an American social media company based in San
Francisco, California.
A copy of the Defendants' motion dated April 26, 2023 is available
from PacerMonitor.com at https://bit.ly/3Vwo92r at no extra
charge.[CC]
The Defendants are represented by:
Tanya L. Greene, Esq.
Jonathan Y. Ellis, Esq.
MCGUIREWOODS LLP
355 S. Grand Avenue, Suite 4200
Los Angeles, CA 90071-3103
Telephone: (213) 457-9879
Facsimile: (213 457-9899
E-mail: tgreene@mcguirewoods.com
jellis@mcguirewoods.com
UNITED HEALTHCARE: Deadline to File Scheduling Statement Extended
-----------------------------------------------------------------
In the class action lawsuit captioned as LD, DB, BW, RH, and CJ, on
behalf of themselves and all others similarly situated, v. UNITED
HEALTHCARE INSURANCE COMPANY, a Connecticut Corporation, UNITED
BEHAVIORAL HEALTH, a California Corporation, and MULTIPLAN, INC., a
New York Corporation, Case No. 4:20-cv-02254-YGR (N.D. Cal.), the
Parties ask the Court to enter an order granting joint stipulation
to extend deadline to file scheduling statement for remainder of
Action.
The Court's order denying motion for class certification ordered
that the parties shall meet and confer regarding a scheduling for
the remainder of the action and file a statement as appropriate no
later than April 28, 2023.
The parties have begun conferring about a schedule for the
remainder of the action but require more time to discuss. Pursuant
to Local Rules 6-2 and 7-12, it is hereby stipulated and agreed by
and between the undersigned counsel of record that the time for the
parties to meet and confer regarding a scheduling for the remainder
of the action and to file a statement is extended up to and
including May 5, 2023.
United Healthcare offers healthcare products and insurance
services.
A copy of the Parties' motion dated April 27, 2023 is available
from PacerMonitor.com at https://bit.ly/3VBYllO at no extra
charge.[CC]
The Plaintiffs are represented by:
Matthew M. Lavin, Esq.
Aaron R. Modiano, Esq.
ARNALL GOLDEN GREGORY LLP
2100 Pennsylvania Avenue NW, Suite 350S
Washington, D.C. 20037
Telephone: (202) 677-4030
Facsimile: (202) 677-4031
E-mail: matt.lavin@agg.com
aaron.modiano@agg.com
- and -
David M. Lilienstein, Esq.
Katie J. Spielman, Esq.
DL LAW GROUP
345 Franklin St.
San Francisco, CA 94102
Telephone: (415) 678-5050
Facsimile: (415) 358-8484
E-mail: david@dllawgroup.com
katie@dllawgroup.com
The Defendants are represented by:
Geoffrey M. Sigler, Esq.
GIBSON DUNN CRUTCHER LLP
1050 Connecticut Avenue, N.W.
Washington, DC 20036
Telephone: (202) 955-8500
E-mail: gsigler@gibsondunn.com
- and -
Brittany Holt Alexander, Esq.
PHELPS DUNBAR LLP
400 Convention Street, Suite 1100
Baton Rouge, LA 70802
Telephone: (225) 376-0279
E-mail: brittany.alexander@phelps.com
VELODYNE LIDAR: Plaintiffs Seek Leave to Submit Smith Transcript
----------------------------------------------------------------
In the class action lawsuit captioned as MEYSAM MORADPOUR, et al.,
v. VELODYNE LIDAR, INC., et al., Case No. 3:21-cv-01486-SI (N.D.
Cal.), the Court entered an order on Lead Plaintiffs Diane and
William P. Smith stipulate administrative motion for leave to
supplement the record regarding their notice of motion and motion
for class certification.
The Defendants agreed to stipulate to the relief sought by this
filing so long as the Plaintiffs did not make any substantive
argument herein, including apparently quoting Mrs. Smith's
deposition, and attached the parties' communications about this
filing.
Velodyne provides real-time 3D vision for autonomous systems
worldwide.
A copy of the Plaintiffs' motion dated April 26, 2023 is available
from PacerMonitor.com at https://bit.ly/3APYsRd at no extra
charge.[CC]
The Plaintiffs are represented by:
Ramzi Abadou, Esq.
Lewis S. Kahn, Esq.
Alexander L. Burns, Esq.
James T. Fetter, Esq.
Alexandra Pratt, Esq.
KAHN SWICK & FOTI, LLP
580 California Street, Suite 1200
San Francisco, CA 94104
Telephone: (415) 459-6900
Facsimile: (504) 455-1498
E-mail: ramzi.abadou@ksfcounsel.com
lewis.kahn@ksfcounsel.com
alexander.burns@ksfcounsel.com
james.fetter@ksfcounsel.com
alexandra.pratt@ksfcounsel.com
VI-JON LLC: Loughlin Seeks Leave to File Unredacted Memorandum
--------------------------------------------------------------
In the class action lawsuit captioned as KRISTINA LOUGHLIN,
individually, and on behalf of others similarly situated, v.
VI-JON, LLC, Case No. 1:20-cv-11555-MLW (D. Mass.), the Plaintiff
asks the Court to enter an order granting her leave to file an
unredacted version of her Memorandum of Law in Support of her
Motion for Class Certification, Appointment of Class
Representatives, and Appointment of Class Counsel and certain
exhibits.
This case is a putative class action brought pursuant to M.G.L. c.
93A related to the Defendant's Representations on the labels of its
hand sanitizer products.
During discovery in this action, the Defendant produced documents
that it designated as "Confidential" and/or "Confidential –
Attorney's Eyes Only" pursuant to the Stipulated Protective Order.
Certain documents and information designated by the Defendant as
"Confidential" and/or "Confidential – Attorney's Eyes Only" is
relevant to the issues presented in the Plaintiff's motion for
class certification.
Accordingly, the Plaintiff requests leave to file her Memorandum
and certain of the Exhibits referenced therein and attached to the
Spector Declaration under seal.
The Plaintiff seeks to file under seal only those portions of the
Memorandum and those documents that address or attach information
that The Defendant has designated as "Confidential" and/or
"Confidential – Attorney's Eyes Only."
The Defendant declined to remove the confidentiality designations.
The Plaintiff requested that the Defendant consent to the instant
Motion, and The Defendant provided its consent.
Vi-Jon manufactures and retails beauty care & healthcare products.
A copy of the Plaintiff's motion dated April 27, 2023 is available
from PacerMonitor.com at https://bit.ly/410XhZO at no extra
charge.[CC]
The Plaintiff is represented by:
Edward L. Manchur, Esq.
LAW OFFICES OF EDWARD L. MANCHUR, P.C.
Peabody, MA 01960
Telephone: (978) 333-1013
E-mail: manchurlaw@gmail.com
- and -
Naomi B. Spector, Esq.
KAMBERLAW LLP
1501 San Elijo Hills Road South, Suite 104-212
San Marcos, CA 92078
Telephone: (310) 400-1053
E-mail: nspector@kamberlaw.com
VIDA LONGEVITY: $1.4MM Class Settlement in O'Hern Suit Has Final OK
-------------------------------------------------------------------
In the case, TIMOTHY O'HERN, et al., Individually and on Behalf of
All Others Similarly Situated, Plaintiffs v. VIDA LONGEVITY FUND,
LP, et al., Defendants, C.A. No. 21-402-SRF (D. Del.), Magistrate
Judge Sherry R. Fallon of the U.S. District Court for the District
of Delaware grants:
a. the Plaintiffs' uncontested motion for final approval of
class action settlement and plan of allocation; and
b. the motion of Rosca Scarlato LLC for an award of attorneys'
fees, payment of expenses, and for incentive awards.
Plaintiffs Timothy O'Hern, Semyon Rodkin, and Dominic Cardinale
bring the action on behalf of themselves and all other similarly
situated individuals against the Vida Longevity Fund, LP ("VLF" or
the "Fund"), an open-ended investment fund that uses money raised
from investors to purchase life settlements. On March 19, 2021, the
Plaintiffs filed a class action complaint against VLF and
Defendants Vida Management I, LLC; Capital Management, LLC; Vida
Capital, Inc.; and Jeffrey R. Serra alleging that VLF misled
investors by attributing its declining performance to one-time or
extrinsic events.
The Plaintiffs invested in the VLF, which bought life insurance
policies at a discount with the goal of producing annualized
returns of 8-12% and a return of capital with low volatility The
VLF achieved the targeted rate of return from its inception though
2017, but its performance began to decline in 2018.
The class action complaint alleges that the VLF misled investors by
attributing its deteriorating performance to one-time or extrinsic
events. At the close of the third quarter in 2020, the VLF
disclosed that its losses were caused by weaknesses in its internal
processes and procedures used to evaluate and price the VLF's
investments. The Plaintiffs allege that the failure to disclose
these weaknesses and the material conflicts of interests of its
founder, Jeffrey Serra, amounted to violations of the Texas
Securities Act.
After the Plaintiffs filed this action on March 19, 2021, the VLF's
financial performance began to improve, generating positive returns
under new owners and management. The parties engaged in mediation
on Oct. 14, 2021 and they reached an agreement in principle on Jan.
5, 2022. On July 8, 2022, the parties entered into a stipulation
setting forth the negotiated terms of the proposed settlement. The
proposed settlement requires the Defendants to pay $1.4 million to
satisfy the Plaintiffs' claims in exchange for a release of class
claims. The stipulation allowed the Plaintiffs to conduct due
diligence discovery before submitting the proposed settlement to
the court for final approval.
The Plaintiffs reviewed an extensive number of documents produced
by the Defendants during discovery and, on Sept. 12, 2022, informed
the Defendants that they intended to proceed with the settlement.
On Nov. 21, 2022, the court preliminarily certified the settlement
class and granted preliminary approval of the proposed settlement
agreement.
The record before the Court confirms that the Plaintiffs have fully
complied with the Court's order preliminarily approving the
proposed settlement. The Court-appointed claims administrator,
Strategic Claims Services ("SCS") disseminated the Postcard Notice
to 5,765 prospective class members, and the Summary Notice was
published via Globe Newswire on the internet on Jan. 30, 2023. A
small percentage of the Postcard Notices were returned as
undeliverable, and SCS mailed Postcard Notices to forwarding
addresses when such addresses were available.
SCS estimates that approximately 94% of the class received the
Postcard Notice. To date, SCS has not received any objections or
requests for exclusion from the class. Likewise, no prospective
class member has objected to the request for attorneys' fees or
expenses.
The net settlement amount, after deduction of taxes, notice and
administrative expenses, and attorneys' fees and expenses from the
allocated amount of $1.4 million, is to be distributed to all class
members on a pro rata basis. The settlement agreement provides that
Plaintiffs' counsel will apply for an award of attorneys' fees in
an amount not to exceed 30% of the settlement amount, and the
amount of expenses paid or incurred will not exceed $50,000.
Incentive awards for the Plaintiffs will not exceed $30,000 total,
or $10,000 per Plaintiff.
Having determined that the Plaintiffs have satisfied the Rule 23
requirements to obtain class certification, Judge Fallon certifies
the Plaintiffs' proposed class for purposes of final settlement
approval.
Having certified the proposed class action under Rule 23, Judge
Fallon evaluates the fairness of the class action settlement under
Rule 23(e). She finds that final approval of the settlement is
proper. Therefore, she approves the proposed settlement in full.
The Class Counsel moves for an award of: (1) attorneys' fees in the
amount of 30% of the $1.4 million settlement; (2) payment of
litigation expenses incurred in prosecuting and settling the
litigation, in the amount of $15,837.60; and (3) incentive awards
to Plaintiffs in the amount of $10,000 each, or $30,000 in the
aggregate, for the time and expenses they incurred in representing
the settlement class.
Judge Fallon grants the motion. She finds that (i) the requested
fee of 30% is reasonable and falls within the typical range of fee
awards in securities class action settlements such as this one;
(ii) the Class Counsel will receive only 83% of what they would
have received at the regular billing rates; and (iii) the Class
Counsel's expenses are reasonable. Accordingly, she awards
attorneys' fees, expenses, and for incentive awards.
Based on the foregoing, the action is dismissed with prejudice.
Appropriate Orders will follow.
A full-text copy of the Court's May 2, 2023 Memorandum Opinion is
available at https://rb.gy/u6zgm from Leagle.com.
VIDA SHOES: Hernandez Files ADA Suit in S.D. New York
-----------------------------------------------------
A class action lawsuit has been filed against Vida Shoes
International, Inc. The case is styled as Janelys Hernandez, on
behalf of herself and all others similarly situated v. Vida Shoes
International, Inc., Case No. 1:23-cv-03541 (S.D.N.Y., April 27,
2023).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Vida Shoes International -- http://www.vidagroup.com/-- has been
committed to becoming a global leader in the footwear
industry.[BN]
The Plaintiff is represented by:
Noor Abou-Saab, I, Esq.
LAW OFFICE OF NOOR A. SAAB
380 North Broadway, Suite 300
Jericho, NY 11753
Phone: (718) 740-5060
Email: noorasaablaw@gmail.com
WELLS FARGO: Bid to Compel Discovery Denied in Henzel Class Suit
----------------------------------------------------------------
In the class action lawsuit captioned as Henzel v. Wells Fargo
Bank, Case No. 2:22-cv-00529-GMN-NJK (D. Nev.), the Hon. Judge
Nancy J. Koppe entered an order that the motion to compel discovery
is denied and the motion to quash is granted as to former
plaintiffs Philomena Moloney, Stanley Ann Dowdy, PMM3, Fortress
Protection LLC, Elizabeth Lewis, California Cabinet Distributors
Inc., and Better Hitting, Inc.
None of the former plaintiffs is listed as a witness. The
Plaintiffs have not indicated an intent to use information gained
from the former plaintiffs in later stages of the case.
Moreover, Wells Fargo did not identify discovery from the former
plaintiffs as being sought in the parties' discovery plan. In
short, Wells Fargo's arguments on this front amount to speculation,
which falls well short of meeting its burden to show the discovery
is necessary.
The former plaintiffs filed a response and a counter-motion to
quash the subpoenas. The motion is properly resolved without a
hearing.
The case arises out of allegations that Matthew Beasley and Jeffrey
Judd operated a largescale Ponzi scheme through which they duped
investors to pay them money purportedly used for advance loans to
plaintiffs awaiting payments on personal injury settlements.
Those allegations initially generated civil lawsuits against the
alleged schemers, but the Plaintiffs eventually turned their
attention to the Defendant Wells Fargo, with whom hundreds of
millions of dollars from the scheme were allegedly deposited.
Wells Fargo offers online and mobile banking, home mortgage, loans
and credit, investment and retirement, wealth management, and
insurance services.
A copy of the Court's order dated April 26, 2023 is available from
PacerMonitor.com at https://bit.ly/3ASTLWI at no extra charge.[CC]
WELLS FARGO: Wins in Part Bid to Dismiss Claims in Forbearance Suit
-------------------------------------------------------------------
In the case, IN RE WELLS FARGO FORBEARANCE LITIGATION, Case No.
20-cv-06009-JD (N.D. Cal.), Judge James Donato of the U.S. District
Court for the Northern District of California grants in part and
denies in part Wells Fargo's motion to dismiss 11 of the 14 claims
in the third amended complaint.
The action consolidated several related cases alleging that
Defendants Wells Fargo Bank, N.A. and Wells Fargo & Co. (together,
Wells Fargo) put residential mortgage holders into forbearance
without their knowledge or consent during the COVID-19 pandemic.
The Plaintiffs filed a third amended complaint, which runs for over
110 pages and alleges 14 claims ranging from the Racketeer
Influenced and Corrupt Organizations Act (RICO), 18 U.S.C. Section
1961, the Truth in Lending Act (TILA), 15 U.S.C. Section 1601, the
Real Estate Settlement Procedures Act (RESPA), 12 U.S.C. Section
2601, and the Fair Credit Reporting Act (FCRA), 15 U.S.C. Section
1681, to a variety of state statutory and common law claims. The
named plaintiffs seek to represent a nationwide class and six state
classes of Wells Fargo customers.
Although the Plaintiffs are on a third amended complaint, it is the
first occasion on which the Court has been asked to determine the
plausibility of the claims under Federal Rule of Civil Procedure
12(b)(6). Motions to dismiss prior iterations of the complaint were
terminated or withdrawn without decision after consolidation and
other events. Wells Fargo asks to dismiss 11 of the 14 claims in
the TAC.
First, Judge Donato dismisses the RICO claim with leave to amend.
He finds that the TAC does not plausibly allege an enterprise
distinct from Wells Fargo acting in its own business capacity. The
allegations do not plausibly establish that Black Knight was part
of a RICO enterprise with Wells Fargo. They establish only that
Black Knight engaged in garden-variety business activities pursuant
to a contract with Wells Fargo. Overall, the RICO enterprise
allegations are not enough to move forward. The Plaintiffs will
have an opportunity to amend the allegations.
Next, Judge Donato dismisses the claims for unjust enrichment and
breach of the implied covenant of good faith and fair dealing. He
finds that the TAC is unduly vague with respect to the state law
that might apply, a deficiency aggravated by the fact that the
named Plaintiffs are citizens of six different states, and Wells
Fargo is said to be a South Dakota business entity with a principal
place of business in California. The Plaintiffs focused on
California and Florida law, while trying to leave the door open
with a reference to "all of the relevant jurisdictions." This is no
way to litigate the claims of a nationwide class and does not give
Wells Fargo fair notice of the claims against it.
Judge Donato then denies the request to dismiss the TILA claim. He
finds that at pleadings stage, there are enough specific factual
allegations to support a plausible inference that Wells Fargo
repurchased, and at some point, owned, at least some of the named
Plaintiffs' loans. The TAC also plausibly alleges that Wells Fargo
failed to timely credit the Plaintiffs' mortgage payments.
Judge Donato also dismisses the RESPA claims. To the extent the
Plaintiffs allege that Wells Fargo violated this "timing of notice"
requirement, he dismisses the claim with leave to amend. The TAC
does not establish that any named Plaintiff has standing to bring
this claim. And because the Plaintiffs did not address Wells
Fargo's arguments that there is no private right of action to
enforce Regulation X requirements in their opposition, the claim
under 12 C.F.R. Section 1024.38 is dismissed with prejudice.
Judge Donato denies dismissal for the California UCL claim. He
holds that the Plaintiffs have successfully alleged a violation of
the unlawful prong predicated on their plausible TILA claim. That
is enough under the UCL.
Finally, Wells Fargo says that the Plaintiffs' claims under state
consumer protection laws are preempted by the FCRA. Judge Donato
holds that the state law claims are preempted to the extent they
regulate credit reporting but may go forward to the extent they
could be construed as unrelated to credit reporting.
Considering the foregoing, the RICO, unjust enrichment, and implied
covenant claims are dismissed with leave to amend. The RESPA claim
under 12 C.F.R. Section 1024.41 is dismissed with leave to amend,
and the claim under 12 C.F.R. Section 1024.38 is dismissed with
prejudice. Dismissal is denied for the TILA and California UCL
claims. Counts 9, 10, 11, 12, and 13 are dismissed with prejudice
to the extent they relate to credit reporting.
The Plaintiffs may file an amended complaint consistent with the
Order by May 19, 2023. No new claims or parties may be added
without the Court's prior consent. A failure to meet the deadline
will result in dismissal with prejudice of the claims dismissed in
the Order.
A full-text copy of the Court's May 2, 2023 Order is available at
https://rb.gy/342pj from Leagle.com.
WESTERN UNION: Continues to Defend Consumidores Class Suit
----------------------------------------------------------
Western Union Financial Services Argentina S.R.L. disclosed in its
Form 10-Q Report for the quarterly period ending March 31, 2023
filed with the Securities and Exchange Commission on May 2, 2023,
that the Company continues to defend itself from the Consumidores
Financieros Asociacion Civil para su Defensa money transfers class
suit.
In October 2015, Consumidores Financieros Asociacion Civil para su
Defensa, an Argentinian consumer association, filed a purported
class action lawsuit in Argentina's National Commercial Court No.
19 against the Company's subsidiary Western Union Financial
Services Argentina S.R.L. ("WUFSA"). The lawsuit alleges, among
other things, that WUFSA's fees for money transfers sent from
Argentina are excessive and that WUFSA does not provide consumers
with adequate information about foreign exchange rates.
The plaintiff is seeking, among other things, an order requiring
WUFSA to reimburse consumers for the fees they paid and the foreign
exchange revenue associated with money transfers sent from
Argentina, plus punitive damages.
The complaint does not specify a monetary value of the claim or a
time period.
In November 2015, the Court declared the complaint formally
admissible as a class action. The notice of claim was served on
WUFSA in May 2016, and in June 2016 WUFSA filed a response to the
claim and moved to dismiss it on statute of limitations and
standing grounds.
In April 2017, the Court deferred ruling on the motion until later
in the proceedings.
The process for notifying potential class members has been
completed, and the case is in the evidentiary stage.
Due to the stage of this matter, the Company is unable to predict
the outcome or the possible loss or range of loss, if any,
associated with this matter.
WUFSA intends to defend itself vigorously.
The Western Union Company is an American worldwide financial
services and communications company, headquartered in Denver,
Colorado. Until it discontinued the service in 2006, Western Union
was the leading American company in the business of transmitting
telegrams.[CC]
WESTERN UNION: Continues to Defend Financial Privacy Act Class Suit
-------------------------------------------------------------------
Western Union Financial Services Argentina S.R.L. disclosed in its
Form 10-Q Report for the quarterly period ending March 31, 2023
filed with the Securities and Exchange Commission on May 2, 2023,
that the Company continues to defend itself from the Financial
Privacy and Financial Information Privacy Act class suit in the
United States District Court for the Northern District of
California.
In December 2022, a purported class action complaint was filed
against several money transfer business defendants, including the
Western Union Co., in the United States District Court for the
Northern District of California, alleging that these defendants
violated the federal Right to Financial Privacy Act and
California's Financial Information Privacy Act.
The United States Department of Homeland Security and Immigration
and Customs Enforcement are also named as defendants.
The operative complaint alleges that the defendants violated
plaintiffs' financial privacy rights by sharing private financial
information with law enforcement agencies through a program
coordinated by the Transaction Record Analysis Center.
On January 24, 2023, an amended complaint was filed naming Western
Union Financial Services, Inc. ("WUFSI") as a defendant in place of
The Western Union Company.
Due to the preliminary stage of this matter, the ultimate outcome
and any potential financial impact to the Company cannot be
reasonably determined at this time.
WUFSI intends to defend itself vigorously in this matter.
The Western Union Company is an American worldwide financial
services and communications company, headquartered in Denver,
Colorado. Until it discontinued the service in 2006, Western Union
was the leading American company in the business of transmitting
telegrams.[CC]
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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.
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