/raid1/www/Hosts/bankrupt/CAR_Public/230601.mbx
C L A S S A C T I O N R E P O R T E R
Thursday, June 1, 2023, Vol. 25, No. 110
Headlines
189 CHRYSTIE: Class and Collective Action Settlement Gets Final Nod
3M COMPANY: Braswell Sues Over Exposure to Toxic Chemicals & Foams
3M COMPANY: Carlson Sues Over Exposure to Toxic Foams & Chemicals
3M COMPANY: Connor Sues Over Exposure to Toxic Film-Forming Foams
3M COMPANY: Cordero Sues Over Exposure to Toxic Chemicals & Foams
3M COMPANY: Everson Sues Over Exposure to Toxic Chemicals
3M COMPANY: Glynn Sues Over Exposure to Toxic Film-Forming Foams
3M COMPANY: Guillen Sues Over Exposure to Toxic Film-Forming Foams
3M COMPANY: Haines Sues Over Exposure to Toxic Chemicals
3M COMPANY: Hasenberg Sues Over Exposure to Toxic Chemicals
3M COMPANY: Kinsey Sues Over Exposure to Toxic Film-Forming Foams
AA FOREST: Court Grants Bid to Dismiss Counterclaims in Yuan Suit
ABBOTT LABORATORIES: Bid to Partially Dismiss LeGrand Suit Granted
ABBOTT LABORATORIES: Class Cert Bids Filing Due Nov. 27 in Conner
AETNA LIFE: Court Approves Issuance of Class Cert Notice in Wolff
ALAMEDA COUNTY, CA: Conditional Status of Collective Action Sought
AMAZON.COM SERVICES: Wins Bid to Dismiss 2nd Amended Chaves Suit
AMEC FOSTER: Wadley Class Cert Bid Due October 6
APPLE INC: $50M Butterfly Keyboard Settlement Granted Final OK
APPLE INC: Doe Suit Remanded to St. Clair Circuit Court in Illinois
BATH & BODY: Court Narrows Claims in Perez Suit
BLUE DIAMOND: Court Junks Cummings Class Action
BLUEGREEN VACATIONS: Laskey Suit Seeks to Modify Class Definition
BLUEGREEN VACATIONS: Leskey Allowed to File Suggestions Under Seal
BLUEGREEN VACATIONS: Seeks to Exclude Roth's Class Cert Opinions
BNSF RAILWAY: Court Directs Filing of Discovery Plan in Ward Suit
BOYKIN FARMS: Lopez Seeks Conditional Status of FLSA Action
BRITAX CHILD: Sur-Reply to Plaintiffs' Class Cert. Submitted
BROADWAY ELECTRIC: Wins Bid to Compel Arbitration in API Suit
CAPITAL ONE: McNeil Seeks Certification of Rule 23 Classes
CAREFIRST INC: Attias Suit Seeks Class Certification
CAVALRY PORTFOLIO: Must Oppose Santiago Class Cert Bid by June 5
CENGAGE LEARNING: Seeks Leave to File Presentation Under Seal
CHANNING PETRAK: Court Directs Filing of Discovery Plan in Kruger
CHARTER FINANCIAL: Kotila Must Provide Specific Class Definition
COOPERATIEVE RABOBANK: Laydon Seeks Certiorari Bid Filing Extension
COOPERATIVA DE SEGUROS: Ortiz Suit Seeks Leave to File Reply Brief
CREDIT SUISSE: Lead Plaintiffs Seek to Certify Two Classes
CUTERA INC: Bids for Lead Plaintiff Appointment Due July 24
D & S PIZZA: Trott Sues Over Drivers' Unreimbursed Expenses
D'PABLO ALTERATIONS: Sanchez Files Suit Over Unpaid Wages
DFINITY USA: Roche Freedman Appointment in Valenti Suit Withdrawn
DIGITAL TURBINE: Briefing on Consolidated Securities Suit Ongoing
DOLLAR TREE: Shields Files Glucosamine Supplements Mislabeling Suit
DOLLAR TREE: Tentative Settlement in MDL Suits for Court Approval
DST SYSTEMS: Loses Bid to Stay Injunction in Singh Lawsuit
DST SYSTEMS: Loses Bid to Stay Injunction in Vankam Lawsuit
DST SYSTEMS: Loses Bid to Stay Injunction in Wright Lawsuit
DST SYSTEMS: Loses Bid to Stay Injunction in Yungeberg Lawsuit
ELI LILLY: Settles Insulin Overpricing Class Action Suit for $500M
EMPOWER FEDERAL: Final Nod of Class Settlement in Wellington Sought
EPIC AIRCRAFT: Loses Bid to Compel Hanney's Disclosure of Damages
EXELA TECH: Seeks More Time to Oppose Class Cert Briefing in Shen
EXELA TECHNOLOGIES: Must Oppose Shen's Class Cert. Bid by June 2
EXTENDED AT HOME: De Paulino Seeks Home Health Aides' Unpaid Wages
FASTENAL CO: Bid to Modify Recommendations in Jackson Suit Deferred
FCA US: Court Narrows Claims in Orozco's Amended Class Complaint
FIBROGEN INC: Must Produce Slide Presentation to Xu, et al.
FIBROGEN INC: Seeks to Seal Portions of Class Cert Opposition
FIRST ADVANTAGE: Wilson Seeks More Time to File Class Cert Reply
FLOSPORTS INC: O'Malley Sues Over Automatic Subscription Renewal
FLYWHEEL ENERGY: Seeks Stay of Sched. Order Deadlines in Flowers
FLYWHEEL ENERGY: Seeks Stay of Scheduling Order Deadlines
FLYWHEEL ENERGY: Seeks Stay of Scheduling Order Deadlines in Oliger
FOTOGRAFISKA FOR LIFE: Young Sues Over Blind-Inaccessible Website
GIVESURANCE INSURANCE: Filing of Class Status Bid Reset to Sept. 18
GKN DRIVELINE: Bid to Decertify Class and Collective Action OK'd
GLAD PRODUCTS: Filing of Class Certification Bid Due Nov. 16
GOOGLE LLC: Minahan Appeals Case Dismissal Ruling to 9th Cir.
GREGORY SAMPSON: Court Junks Smith Bid to Certify Class
GUIDEHOUSE LLP: Torrez Sues Over Compliance Analysts' Unpaid OT
HAWAII: E.R.K. Files Cross Appeal Over Attorney Fees Ruling
HERTZ GLOBAL: Cascia Sues Directors for Breach of Fiduciary Duties
HI.Q INC: Filing for Class Certification Extended to Nov. 2
HUMANA INC: Filing for Class Certification Bid Due Nov. 6 in Elliot
HUSKY OIL: Appeals Attorneys' Fees Order in Bruzek Suit to 7th Cir.
ILLINOIS: Amended Smith Complaint v. IDOC Dismissed With Prejudice
INDEPENDENT LIVING: Fails to Protect Health Info, Swaim Alleges
JOSEPH BIDEN: Class Certification Briefing Stayed in Van Den Bosch
JP MORGAN: Bid to Disqualify WilmerHale from Representing Tossed
KANSAS CITY: Seeks to File Pfeifer's Declaration Under Seal
LE SPORTSAC: Murphy Seeks Final Approval of Class Action Settlement
LEPRINO FOODS: Files Cross-Appeal in Vasquez Labor Suit to 9th Cir.
LUCKY2MEDIA LLC: Placeholder Bid for Class Certification Filed
MDL 2966: Court Certifies Class in Antitrust Suit
MDL 2972: Blackbaud Opposition to Allen Class Cert Bid Due June 9
MDL 2972: Blackbaud Opposition to Arthur Class Cert Bid Due June 9
MDL 2972: Blackbaud Opposition to Atwood Class Cert Bid Due June 9
MDL 2972: Blackbaud Opposition to Bedell Class Cert Bid Due June 9
MDL 2972: Blackbaud Opposition to Clayton Class Cert Bid Due June 9
MDL 2972: Blackbaud Opposition to Lofton Class Cert Bid Due June 9
MDL 3050: Pfizer's Bid to Dismiss Chantix MDL Due on June 20
MEHBIZAR INC: Faces Zavada Wage-and-Hour Suit in E.D.N.Y.
METROPOLITAN OPERA: Faces Class Suit Over Data Privacy Breach
METROPOLITAN OPERA: Viti Files Suit Over Data Breach
MINNESOTA: Joint Bid on Continued Sealing Filed
MOBILEHELP LLC: Court Defers Ruling on Bid to Dismiss Clotz Suit
MTS NY PROPCO: Swartz Files ADA Suit Over Architectural Barriers
MURAD LLC: N.D. New York Narrows Claims in DeCoursey Consumer Suit
NASHVILLE BOOTING: Ladd Bid to Certify Class Partly OK'd
NASHVILLE CENTER: Suit Seeks to Certify Physical Therapist Class
NATIONAL SPINE: Scoma Bid for Summary Judgment Partly OK'd
NATIXIS INVESTMENT: Courts Allows Waldner Bid for Class Status
NAVIENT SOLUTIONS: Appeals Class Certification Order in Homaidan
NEW HAMPSHIRE: Commissioner's Bid to Dismiss Suit Tossed
NEW HAMPSHIRE: Fitzmorris Files Renewed Bid for Class Certification
NEW HAMPSHIRE: Suit Seeks to Seal Exhibits in Class Cert Bid
NEW YORK, NY: Court Lifts Stay of Sumpter Suit
NORTHROP GRUMMAN: 7th Cir. Affirms Summary Judgment in Carlson Suit
NUWEST GROUP: Court OK's Entry of Protective Order in Hamilton Suit
O'REILLY AUTOMOTIVE: Court Dismisses Barrett ERISA Class Suit
PAPA INC: Rescheduling of Class Certification Hearing Sought
PAWN AMERICA: Bid to Compel Arbitration Nixed in Thomas Class Suit
PBS CONSTRUCTION: Vega Sues Over Unpaid OT Hours
PELOTON INTERACTIVE: Passman Appeals Class Certification Bid Denial
PENNSYLVANIA: Appeal Quashed as Untimely in Nifas v. McGinley
PFIZER INC: EPPs Bid for Class Certification Due June 19
PHARM-SAVE INC: Savidge Suit Seeks to Certify Class Action
QUIKRETE COMPANIES: Thomas Sues to Recover Unpaid Wages
RESURGENT CAPITAL: Court Grants Bid to Dismiss Winter Class Suit
RICOH USA: Krutchten Appeals ERISA Case Dismissal
RUST-OLEUM CORP: Class Certification Briefing Amended to June 14
SAKS INC: Bid to Dismiss 4th Amended Nunez Class Complaint Denied
SAM'S WEST: Sanchez Appeals Class Cert. Bid Denial to 9th Circuit
SAMSUNG ELECTRONICS: Denial of Bid to Stay Zortea Remand Appealed
SAN DIEGO COUNTY, CA: Plaintiffs Must File Documents Under Seal
SEAFORD BAGELS: Faces Flores Suit Over Unsolicited Text Messages
SONY INTERACTIVE: Faces Appeal Tribunal Due to Monopoly Class Suit
SPIRIT AEROSYSTEMS: Raymond Collective Action Finally Certified
STATE FARM: Has Until June 22 to File Class Certification Response
STATE FARM: June 22 to File Class Cert Response Sought
STIFEL NICOLAUS: Krupa Appeals Denial of Remand Bid to 8th Cir.
SYMETRA LIFE: Filing for Class Certification Bid Due Oct. 10
SYSCO CORP: Fails to Secure Personal Info, Miller Suit Says
SYSCO CORP: Trottier Sues Over Failure to Secure Personal Info
TESTING HOLLYWOOD: Novak Sues Over Unlawful Labor Practices
TETRA TECH: Filing of Class Certification Bid Due June 16
TORRANCE MEMORIAL: Appeals Remand Order in Doe Suit to 9th Cir.
TRI-BOROUGH CERTIFIED: Appeals Class Cert. Ruling in Rodriguez Suit
TRUMBULL INSURANCE: Allowed Leave to Oppose Goble Class Cert Bid
UCOR LLC: Must File Amended Response to Class Cert by July 12
UINTAH BASIN: Keasler Sues Over Failure to Secure Personal Info
UNION PACIFIC: Class Cert. Discovery Cut−Off Set for June 4, 2024
UNITED CAPITAL: Settlement in Carollo Suit Wins Prelim. Approval
UNITED COLLECTION: Starnes Suit Removed to M.D. Tennessee
UNITED STATES: All Pending Deadlines Stayed Until Nov. 10
UNITED STATES: Brickman Seeks More Time to File Writ of Certiorari
UNITED STATES: NVLSP Wins Revised Bid for Prelim. Settlement Nod
UNUM GROUP: Appeals Class Certification Order in Loomis Suit
VENEZUELA: PDVSA Appeals Ruling in Rusoro Suit to 3rd Circuit
WEGMANS FOOD: Filing of Class Status Bid Extended to August 1
WEGMANS FOOD: Parties Seeks Extension of Class Cert Bid Deadline
WHITING OIL: Court Junks HCM Class Action
YUM! BRANDS: Court Grants Bid to Compel Arbitration in Coons Suit
ZOETIS INC: De Lara Suit Moved to Santa Barbara County Super. Court
*********
189 CHRYSTIE: Class and Collective Action Settlement Gets Final Nod
-------------------------------------------------------------------
In the class action lawsuit captioned as JUAN JESUS MATA ENRIQUEZ,
et al., v. 189 CHRYSTIE STREET PARTNERS, LP d/b/a THE BOX, et al.,
Case No. 1:21-cv-11195-SN (S.D.N.Y.), the Hon. Judge Sarah Netburn
entered an order granting the Plaintiffs' motion:
-- for final approval of the class and collective action
settlement,
-- to approve class representative Service Award Payments, and
-- for attorney's fees and expenses.
A copy of the Court's order dated May 12, 2023, is available from
PacerMonitor.com at https://bit.ly/432t3XY at no extra charge.[CC]
3M COMPANY: Braswell Sues Over Exposure to Toxic Chemicals & Foams
------------------------------------------------------------------
Frank Braswell, and other similarly situated v. 3M COMPANY (f/k/a
Minnesota Mining and Manufacturing Company); AGC CHEMICALS AMERICAS
INC.; AMEREX CORPORATION; ARCHROMA U.s. INC.; ARKEMA, INC.; BUCKEYE
FIRE EQUIPMENT COMPANY; CARRIER GLOBAL CORPORATION; CHEMDESIGN
PRODUCTS, INC.;CHEMGUARD, INC.; CHEMICALS, INC.; CHEMOURS COMPANY
FC, LLC; CHUBB FIRE, LTD; CLARIANT CORP., CORTEVA, INC.; DEEPWATER
CHEMICALS, INC.; DU PONT DE NE-MOERS INC. (f/k/a DOWDUPONT INC.);
DYNAX CORPORATION; E.I. DC PONT DE NEMOURS AND COMPANY;
KIDDE-FENWAL, INC.; KIDDE PLC; NATION FORD CHEMICAL COMPANY;
NATIONAL FOAM, INC.; THE CHEMOURS COMPANY; TYCO FIRE PRODUCTS LP,
as successor-in-interest to The Ansul Company; UNITED TECHNOLOGIES
CORPORATION; UTC FIRE & SECURITY AMERICAS CORPORATION, INC. (f/k/a
GE Interlogix, Inc.), Case No. 2:23-cv-01673-RMG (D.S.C., April 21,
2023), is brought for damages for personal injury resulting from
exposure to aqueous film-forming foams ("AFFF") containing the
toxic chemicals collectively known as per and polyfluoroalkyl
substances ("PFAS"). PFAS includes, but is not limited to,
perfluorooctanoic acid ("PFOA") and perfluorooctane sulfonic acid
("PFOS") and related chemicals including those that degrade to PFOA
and/or PFOS.
AFFF is a specialized substance designed to extinguish
petroleum-based fires. It has been used for decades by military and
civilian firefighters to extinguish fires in training and in
response to Class B fires. The Defendants collectively designed,
marketed, developed, manufactured, distributed, released, trained
users, produced instructional materials, promoted, sold, and/or
otherwise released into the stream of commerce AFFF with knowledge
that it contained highly toxic and bio persistent PFASs, which
would expose end users of the product to the risks associated with
PFAS. Further, the Defendants designed, marketed, developed,
manufactured, distributed, released, trained users, produced
instructional materials, promoted, sold and/or otherwise handled
and/or used underlying chemicals and/or products added to AFFF
which contained PFAS for use in firefighting.
PFAS binds to proteins in the blood of humans exposed to the
material and remains and persists over long periods of time. Due to
their unique chemical structure, PFAS accumulates in the blood and
body of exposed individuals. PFAS are highly toxic and carcinogenic
chemicals. Defendants knew, or should have known, that PFAS remain
in the human body while presenting significant health risks to
humans.
The Defendants' PFAS-containing AFFF products were used by the
Plaintiff in their intended manner, without significant change in
the products' condition. Plaintiff was unaware of the dangerous
properties of the Defendants' AFFF products and relied on the
Defendants' instructions as to the proper handling of the products.
Plaintiff's consumption, inhalation and/or dermal absorption of
PFAS from Defendant's AFFF products caused Plaintiff to develop the
serious medical conditions and complications alleged herein.
Through this action, the Plaintiff seeks to recover compensatory
and punitive damages arising out of the permanent and significant
damages sustained as a direct result of exposure to the Defendants'
AFFF products at various locations during the course of Plaintiff's
training and firefighting activities. Plaintiff further seeks
injunctive, equitable, and declaratory relief arising from the
same, says the complaint.
The Plaintiff regularly used, and was thereby directly exposed to,
AFFF in training and to extinguish fires during his working career
as a military and/or civilian firefighter and was diagnosed with
multiple myeloma cancer as a result of exposure to the Defendants'
AFFF products.
The Defendants are designers, marketers, developers, manufacturers,
distributors, releasers, instructors, promotors and sellers of PFAS
containing AFFF products or underlying PFAS containing chemicals
used in AFFF production.[BN]
The Plaintiff is represented by:
Richard Zgoda, Jr., Esq.
Steven D. Gacovino, Esq.
GACOVINO, LAKE & ASSOCIATES, P.C.
270 West Main Street
Sayville, NY 11782
Phone: 631-600-0000
Facsimile: 631-543-5450
- and -
Gregory A. Cade, Esq.
Gary A. Anderson, Esq.
Kevin B. McKie, Esq.
ENVIRONMENTAL LITIGATION GROUP, P.C.
2160 Highland Avenue South
Birmingham, AL 35205
Phone: 205-328-9200
Facsimile: 205-328-9456
3M COMPANY: Carlson Sues Over Exposure to Toxic Foams & Chemicals
-----------------------------------------------------------------
Robert Carlson and Linda Carlson, his wife, and other similarly
situated v. 3M COMPANY (f/k/a Minnesota Mining and Manufacturing
Company); AGC CHEMICALS AMERICAS INC.; AMEREX CORPORATION; ARCHROMA
U.S., INC.; ARKEMA, INC.; BUCK EYE FIRE EQUIPMENT COMPANY; CARRIER
GLOBAL CORPORATION; CHEMDESIGN PRODUCTS, INC.; CHEMGUARD, INC.;
CHEMICALS, INC.; CHEMOURS COMPANY FC, LLC; CHUBB FIRE, LTD;
CLARIANT CORP.; CORTEVA, INC. DEEPWATER CHEMICALS INC.; DU PONT DE
NEMOURS INC. (f/k/a DOWDUPONT INC.;) DYNAX CORPORATION; E.I. DU
PONT DE NEMOURS AND COMPANY; KIDDIE-FENWAL, INC.; KIDDIE PLC;
NATION FORD CHEMICAL COMPANY; NATIONAL FOAM, INC.; THE CHEMOURS
COMPANY; TYCO FIRE PRODUCTS LP, as Successor-in-interest to the
Ansul Company; UNITED TECHNOLOGIES CORPORATION; UTC FIRE & SECURITY
AMERICAS CORPORATION, INC. (f/k/a GE Interlogix, Inc.); and ABC
CORPORATIONS (1-50), Case No. 2:23-cv-01541-RMG (D.S.C., April 14,
2023), is brought for damages for personal injury resulting from
exposure to aqueous film-forming foams ("AFFF") containing the
toxic chemicals collectively known as per and polyfluoroalkyl
substances ("PFAS"). PFAS includes, but is not limited to,
perfluorooctanoic acid ("PFOA") and perfluorooctane sulfonic acid
("PFOS") and related chemicals including those that degrade to PFOA
and/or PFOS.
AFFF is a specialized substance designed to extinguish
petroleum-based fires. It has been used for decades by military and
civilian firefighters to extinguish fires in training and in
response to Class B fires. The Defendants collectively designed,
marketed, developed, manufactured, distributed, released, trained
users, produced instructional materials, promoted, sold, and/or
otherwise released into the stream of commerce AFFF with knowledge
that it contained highly toxic and bio persistent PFASs, which
would expose end users of the product to the risks associated with
PFAS. Further, the Defendants designed, marketed, developed,
manufactured, distributed, released, trained users, produced
instructional materials, promoted, sold and/or otherwise handled
and/or used underlying chemicals and/or products added to AFFF
which contained PFAS for use in firefighting.
PFAS binds to proteins in the blood of humans exposed to the
material and remains and persists over long periods of time. Due to
their unique chemical structure, PFAS accumulates in the blood and
body of exposed individuals. PFAS are highly toxic and carcinogenic
chemicals. Defendants knew, or should have known, that PFAS remain
in the human body while presenting significant health risks to
humans.
The Defendants' PFAS-containing AFFF products were used by the
Plaintiff in their intended manner, without significant change in
the products' condition. Plaintiff was unaware of the dangerous
properties of the Defendants' AFFF products and relied on the
Defendants' instructions as to the proper handling of the products.
Plaintiff's consumption, inhalation and/or dermal absorption of
PFAS from Defendant's AFFF products caused Plaintiff to develop the
serious medical conditions and complications alleged herein.
Through this action, the Plaintiff seeks to recover compensatory
and punitive damages arising out of the permanent and significant
damages sustained as a direct result of exposure to the Defendants'
AFFF products at various locations during the course of Plaintiff's
training and firefighting activities. Plaintiff further seeks
injunctive, equitable, and declaratory relief arising from the
same, says the complaint.
The Plaintiff Robert Carlson regularly used, and was thereby
directly exposed to, AFFF in training and to extinguish fires
during his working career, and was diagnosed with prostate cancer
and/or other medical related conditions as a result of exposure to
Defendants' AFFF products.
The Defendants are designers, marketers, developers, manufacturers,
distributors, releasers, instructors, promotors and sellers of PFAS
containing AFFF products or underlying PFAS containing chemicals
used in AFFF production.[BN]
The Plaintiff is represented by:
Stephen T. Sullivan, Jr., Esq.
John E. Keefe, Jr., Esq.
WILENTZ, GOLDMAN & SPITZER P.A.
125 Half Mile Road, Suite 100
Red Bank, NJ 07701
Phone: 732-855-6060
Facsimile: 732-726-4860
3M COMPANY: Connor Sues Over Exposure to Toxic Film-Forming Foams
-----------------------------------------------------------------
Donald F. Connor, and other similarly situated v. 3M COMPANY (f/k/a
Minnesota Mining and Manufacturing Company); AGC CHEMICALS AMERICAS
INC.; AMEREX CORPORATION; ARCHROMA U.S., INC.; ARKEMA, INC.; BUCK
EYE FIRE EQUIPMENT COMPANY; CARRIER GLOBAL CORPORATION; CHEMDESIGN
PRODUCTS, INC.; CHEMGUARD, INC.; CHEMICALS, INC.; CHEMOURS COMPANY
FC, LLC; CHUBB FIRE, LTD; CLARIANT CORP.; CORTEVA, INC. DEEPWATER
CHEMICALS INC.; DU PONT DE NEMOURS INC. (f/k/a DOWDUPONT INC.;)
DYNAX CORPORATION; E.I. DU PONT DE NEMOURS AND COMPANY;
KIDDIE-FENWAL, INC.; KIDDIE PLC; NATION FORD CHEMICAL COMPANY;
NATIONAL FOAM, INC.; THE CHEMOURS COMPANY; TYCO FIRE PRODUCTS LP,
as Successor-in-interest to the Ansul Company; UNITED TECHNOLOGIES
CORPORATION; UTC FIRE & SECURITY AMERICAS CORPORATION, INC. (f/k/a
GE Interlogix, Inc.); and ABC CORPORATIONS (1-50), Case No.
2:23-cv-01542-RMG (D.S.C., April 14, 2023), is brought for damages
for personal injury resulting from exposure to aqueous film-forming
foams ("AFFF") containing the toxic chemicals collectively known as
per and polyfluoroalkyl substances ("PFAS"). PFAS includes, but is
not limited to, perfluorooctanoic acid ("PFOA") and perfluorooctane
sulfonic acid ("PFOS") and related chemicals including those that
degrade to PFOA and/or PFOS.
AFFF is a specialized substance designed to extinguish
petroleum-based fires. It has been used for decades by military and
civilian firefighters to extinguish fires in training and in
response to Class B fires. The Defendants collectively designed,
marketed, developed, manufactured, distributed, released, trained
users, produced instructional materials, promoted, sold, and/or
otherwise released into the stream of commerce AFFF with knowledge
that it contained highly toxic and bio persistent PFASs, which
would expose end users of the product to the risks associated with
PFAS. Further, the Defendants designed, marketed, developed,
manufactured, distributed, released, trained users, produced
instructional materials, promoted, sold and/or otherwise handled
and/or used underlying chemicals and/or products added to AFFF
which contained PFAS for use in firefighting.
PFAS binds to proteins in the blood of humans exposed to the
material and remains and persists over long periods of time. Due to
their unique chemical structure, PFAS accumulates in the blood and
body of exposed individuals. PFAS are highly toxic and carcinogenic
chemicals. Defendants knew, or should have known, that PFAS remain
in the human body while presenting significant health risks to
humans.
The Defendants' PFAS-containing AFFF products were used by the
Plaintiff in their intended manner, without significant change in
the products' condition. Plaintiff was unaware of the dangerous
properties of the Defendants' AFFF products and relied on the
Defendants' instructions as to the proper handling of the products.
Plaintiff's consumption, inhalation and/or dermal absorption of
PFAS from Defendant's AFFF products caused Plaintiff to develop the
serious medical conditions and complications alleged herein.
Through this action, the Plaintiff seeks to recover compensatory
and punitive damages arising out of the permanent and significant
damages sustained as a direct result of exposure to the Defendants'
AFFF products at various locations during the course of Plaintiff's
training and firefighting activities. Plaintiff further seeks
injunctive, equitable, and declaratory relief arising from the
same, says the complaint.
The Plaintiff regularly used, and was thereby directly exposed to,
AFFF in training and to extinguish fires during his career, and was
diagnosed with prostate cancer, kidney disease and/or other medical
related conditions as a result of exposure to Defendants' AFFF
products.
The Defendants are designers, marketers, developers, manufacturers,
distributors, releasers, instructors, promotors and sellers of PFAS
containing AFFF products or underlying PFAS containing chemicals
used in AFFF production.[BN]
The Plaintiff is represented by:
Stephen T. Sullivan, Jr., Esq.
John E. Keefe, Jr., Esq.
WILENTZ, GOLDMAN & SPITZER P.A.
125 Half Mile Road, Suite 100
Red Bank, NJ 07701
Phone: 732-855-6060
Facsimile: 732-726-4860
3M COMPANY: Cordero Sues Over Exposure to Toxic Chemicals & Foams
-----------------------------------------------------------------
Luis Cordero and Margret Cordero, his wife, and other similarly
situated v. 3M COMPANY (f/k/a Minnesota Mining and Manufacturing
Company); AGC CHEMICALS AMERICAS INC.; AMEREX CORPORATION; ARCHROMA
U.S., INC.; ARKEMA, INC.; BUCK EYE FIRE EQUIPMENT COMPANY; CARRIER
GLOBAL CORPORATION; CHEMDESIGN PRODUCTS, INC.; CHEMGUARD, INC.;
CHEMICALS, INC.; CHEMOURS COMPANY FC, LLC; CHUBB FIRE, LTD;
CLARIANT CORP.; CORTEVA, INC. DEEPWATER CHEMICALS INC.; DU PONT DE
NEMOURS INC. (f/k/a DOWDUPONT INC.;) DYNAX CORPORATION; E.I. DU
PONT DE NEMOURS AND COMPANY; KIDDIE-FENWAL, INC.; KIDDIE PLC;
NATION FORD CHEMICAL COMPANY; NATIONAL FOAM, INC.; THE CHEMOURS
COMPANY; TYCO FIRE PRODUCTS LP, as Successor-in-interest to the
Ansul Company; UNITED TECHNOLOGIES CORPORATION; UTC FIRE & SECURITY
AMERICAS CORPORATION, INC. (f/k/a GE Interlogix, Inc.); and ABC
CORPORATIONS (1-50), Case No. 2:23-cv-01543-RMG (D.S.C., April 14,
2023), is brought for damages for personal injury resulting from
exposure to aqueous film-forming foams ("AFFF") containing the
toxic chemicals collectively known as per and polyfluoroalkyl
substances ("PFAS"). PFAS includes, but is not limited to,
perfluorooctanoic acid ("PFOA") and perfluorooctane sulfonic acid
("PFOS") and related chemicals including those that degrade to PFOA
and/or PFOS.
AFFF is a specialized substance designed to extinguish
petroleum-based fires. It has been used for decades by military and
civilian firefighters to extinguish fires in training and in
response to Class B fires. The Defendants collectively designed,
marketed, developed, manufactured, distributed, released, trained
users, produced instructional materials, promoted, sold, and/or
otherwise released into the stream of commerce AFFF with knowledge
that it contained highly toxic and bio persistent PFASs, which
would expose end users of the product to the risks associated with
PFAS. Further, the Defendants designed, marketed, developed,
manufactured, distributed, released, trained users, produced
instructional materials, promoted, sold and/or otherwise handled
and/or used underlying chemicals and/or products added to AFFF
which contained PFAS for use in firefighting.
PFAS binds to proteins in the blood of humans exposed to the
material and remains and persists over long periods of time. Due to
their unique chemical structure, PFAS accumulates in the blood and
body of exposed individuals. PFAS are highly toxic and carcinogenic
chemicals. Defendants knew, or should have known, that PFAS remain
in the human body while presenting significant health risks to
humans.
The Defendants' PFAS-containing AFFF products were used by the
Plaintiff in their intended manner, without significant change in
the products' condition. Plaintiff was unaware of the dangerous
properties of the Defendants' AFFF products and relied on the
Defendants' instructions as to the proper handling of the products.
Plaintiff's consumption, inhalation and/or dermal absorption of
PFAS from Defendant's AFFF products caused Plaintiff to develop the
serious medical conditions and complications alleged herein.
Through this action, the Plaintiff seeks to recover compensatory
and punitive damages arising out of the permanent and significant
damages sustained as a direct result of exposure to the Defendants'
AFFF products at various locations during the course of Plaintiff's
training and firefighting activities. Plaintiff further seeks
injunctive, equitable, and declaratory relief arising from the
same, says the complaint.
The Plaintiff Luis Cordero regularly used, and was thereby directly
exposed to, AFFF in training and to extinguish fires during his
working career, and was diagnosed with hypothyroidism, colitis
and/or other medical related conditions as a result of exposure to
Defendants' AFFF products.
The Defendants are designers, marketers, developers, manufacturers,
distributors, releasers, instructors, promotors and sellers of PFAS
containing AFFF products or underlying PFAS containing chemicals
used in AFFF production.[BN]
The Plaintiff is represented by:
Stephen T. Sullivan, Jr., Esq.
John E. Keefe, Jr., Esq.
WILENTZ, GOLDMAN & SPITZER P.A.
125 Half Mile Road, Suite 100
Red Bank, NJ 07701
Phone: 732-855-6060
Facsimile: 732-726-4860
3M COMPANY: Everson Sues Over Exposure to Toxic Chemicals
---------------------------------------------------------
Barry Everson, and Philip Everson by the Proposed Administrator and
Next-of-Kin, Barry Everson, and other similarly situated v. 3M
COMPANY (f/k/a Minnesota Mining and Manufacturing Company); AGC
CHEMICALS AMERICAS INC.; AMEREX CORPORATION; ARCHROMA U.s. INC.;
ARKEMA, INC.; BUCKEYE FIRE EQUIPMENT COMPANY; CARRIER GLOBAL
CORPORATION; CHEMDESIGN PRODUCTS, INC.;CHEMGUARD, INC.; CHEMICALS,
INC.; CHEMOURS COMPANY FC, LLC; CHUBB FIRE, LTD; CLARIANT CORP.,
CORTEVA, INC.; DEEPWATER CHEMICALS, INC.; DU PONT DE NE-MOERS INC.
(f/k/a DOWDUPONT INC.); DYNAX CORPORATION; E.I. DC PONT DE NEMOURS
AND COMPANY; KIDDE-FENWAL, INC.; KIDDE PLC; NATION FORD CHEMICAL
COMPANY; NATIONAL FOAM, INC.; THE CHEMOURS COMPANY; TYCO FIRE
PRODUCTS LP, as successor-in-interest to The Ansul Company; UNITED
TECHNOLOGIES CORPORATION; UTC FIRE & SECURITY AMERICAS CORPORATION,
INC. (f/k/a GE Interlogix, Inc.), Case No. 2:23-cv-01545-RMG
(D.S.C., April 14, 2023), is brought for damages for personal
injury resulting from exposure to aqueous film-forming foams
("AFFF") containing the toxic chemicals collectively known as per
and polyfluoroalkyl substances ("PFAS"). PFAS includes, but is not
limited to, perfluorooctanoic acid ("PFOA") and perfluorooctane
sulfonic acid ("PFOS") and related chemicals including those that
degrade to PFOA and/or PFOS.
AFFF is a specialized substance designed to extinguish
petroleum-based fires. It has been used for decades by military and
civilian firefighters to extinguish fires in training and in
response to Class B fires. The Defendants collectively designed,
marketed, developed, manufactured, distributed, released, trained
users, produced instructional materials, promoted, sold, and/or
otherwise released into the stream of commerce AFFF with knowledge
that it contained highly toxic and bio persistent PFASs, which
would expose end users of the product to the risks associated with
PFAS. Further, the Defendants designed, marketed, developed,
manufactured, distributed, released, trained users, produced
instructional materials, promoted, sold and/or otherwise handled
and/or used underlying chemicals and/or products added to AFFF
which contained PFAS for use in firefighting.
PFAS binds to proteins in the blood of humans exposed to the
material and remains and persists over long periods of time. Due to
their unique chemical structure, PFAS accumulates in the blood and
body of exposed individuals. PFAS are highly toxic and carcinogenic
chemicals. Defendants knew, or should have known, that PFAS remain
in the human body while presenting significant health risks to
humans.
The Defendants' PFAS-containing AFFF products were used by the
Plaintiff in their intended manner, without significant change in
the products' condition. Plaintiff was unaware of the dangerous
properties of the Defendants' AFFF products and relied on the
Defendants' instructions as to the proper handling of the products.
Plaintiff's consumption, inhalation and/or dermal absorption of
PFAS from Defendant's AFFF products caused Plaintiff to develop the
serious medical conditions and complications alleged herein.
Through this action, the Plaintiff seeks to recover compensatory
and punitive damages arising out of the permanent and significant
damages sustained as a direct result of exposure to the Defendants'
AFFF products at various locations during the course of Plaintiff's
training and firefighting activities. Plaintiff further seeks
injunctive, equitable, and declaratory relief arising from the
same, says the complaint.
The Plaintiff Barry Everson is the proposed personal
representative/administrator/executor of the Estate of Philip
Everson who regularly used, and was thereby directly exposed to,
AFFF in training and to extinguish fires during his working career
as a military and/or civilian firefighter and was diagnosed with
prostate cancer as a result of exposure to the Defendants' AFFF
products.
The Defendants are designers, marketers, developers, manufacturers,
distributors, releasers, instructors, promotors and sellers of PFAS
containing AFFF products or underlying PFAS containing chemicals
used in AFFF production.[BN]
The Plaintiff is represented by:
Richard Zgoda, Jr., Esq.
Steven D. Gacovino, Esq.
GACOVINO, LAKE & ASSOCIATES, P.C.
270 West Main Street
Sayville, NY 11782
Phone: 631-600-0000
Facsimile: 631-543-5450
- and -
Gregory A. Cade, Esq.
Gary A. Anderson, Esq.
Kevin B. McKie, Esq.
ENVIRONMENTAL LITIGATION GROUP, P.C.
2160 Highland Avenue South
Birmingham, AL 35205
Phone: 205-328-9200
Facsimile: 205-328-9456
3M COMPANY: Glynn Sues Over Exposure to Toxic Film-Forming Foams
----------------------------------------------------------------
Frederick Glynn and Mary Kathryn Apholt, his wife, and other
similarly situated v. 3M COMPANY (f/k/a Minnesota Mining and
Manufacturing Company); AGC CHEMICALS AMERICAS INC.; AMEREX
CORPORATION; ARCHROMA U.S., INC.; ARKEMA, INC.; BUCK EYE FIRE
EQUIPMENT COMPANY; CARRIER GLOBAL CORPORATION; CHEMDESIGN PRODUCTS,
INC.; CHEMGUARD, INC.; CHEMICALS, INC.; CHEMOURS COMPANY FC, LLC;
CHUBB FIRE, LTD; CLARIANT CORP.; CORTEVA, INC. DEEPWATER CHEMICALS
INC.; DU PONT DE NEMOURS INC. (f/k/a DOWDUPONT INC.;) DYNAX
CORPORATION; E.I. DU PONT DE NEMOURS AND COMPANY; KIDDIE-FENWAL,
INC.; KIDDIE PLC; NATION FORD CHEMICAL COMPANY; NATIONAL FOAM,
INC.; THE CHEMOURS COMPANY; TYCO FIRE PRODUCTS LP, as
Successor-in-interest to the Ansul Company; UNITED TECHNOLOGIES
CORPORATION; UTC FIRE & SECURITY AMERICAS CORPORATION, INC. (f/k/a
GE Interlogix, Inc.); and ABC CORPORATIONS (1-50), Case No.
2:23-cv-01401-RMG (D.S.C., April 6, 2023), is brought for damages
for personal injury resulting from exposure to aqueous film-forming
foams ("AFFF") containing the toxic chemicals collectively known as
per and polyfluoroalkyl substances ("PFAS"). PFAS includes, but is
not limited to, perfluorooctanoic acid ("PFOA") and perfluorooctane
sulfonic acid ("PFOS") and related chemicals including those that
degrade to PFOA and/or PFOS.
AFFF is a specialized substance designed to extinguish
petroleum-based fires. It has been used for decades by military and
civilian firefighters to extinguish fires in training and in
response to Class B fires. The Defendants collectively designed,
marketed, developed, manufactured, distributed, released, trained
users, produced instructional materials, promoted, sold, and/or
otherwise released into the stream of commerce AFFF with knowledge
that it contained highly toxic and bio persistent PFASs, which
would expose end users of the product to the risks associated with
PFAS. Further, the Defendants designed, marketed, developed,
manufactured, distributed, released, trained users, produced
instructional materials, promoted, sold and/or otherwise handled
and/or used underlying chemicals and/or products added to AFFF
which contained PFAS for use in firefighting.
PFAS binds to proteins in the blood of humans exposed to the
material and remains and persists over long periods of time. Due to
their unique chemical structure, PFAS accumulates in the blood and
body of exposed individuals. PFAS are highly toxic and carcinogenic
chemicals. Defendants knew, or should have known, that PFAS remain
in the human body while presenting significant health risks to
humans.
The Defendants' PFAS-containing AFFF products were used by the
Plaintiff in their intended manner, without significant change in
the products' condition. Plaintiff was unaware of the dangerous
properties of the Defendants' AFFF products and relied on the
Defendants' instructions as to the proper handling of the products.
Plaintiff's consumption, inhalation and/or dermal absorption of
PFAS from Defendant's AFFF products caused Plaintiff to develop the
serious medical conditions and complications alleged herein.
Through this action, the Plaintiff seeks to recover compensatory
and punitive damages arising out of the permanent and significant
damages sustained as a direct result of exposure to the Defendants'
AFFF products at various locations during the course of Plaintiff's
training and firefighting activities. Plaintiff further seeks
injunctive, equitable, and declaratory relief arising from the
same, says the complaint.
The Plaintiff regularly used, and was thereby directly exposed to,
AFFF in training and to extinguish fires during his working career
as a military and/or civilian firefighter and was diagnosed with
medical conditions regarding his pituitary gland, psoriatic
arthritis and/or other medical conditions as a result of exposure
to the Defendants' AFFF products.
The Defendants are designers, marketers, developers, manufacturers,
distributors, releasers, instructors, promotors and sellers of PFAS
containing AFFF products or underlying PFAS containing chemicals
used in AFFF production.[BN]
The Plaintiff is represented by:
Stephen T. Sullivan, Jr., Esq.
John E. Keefe, Jr., Esq.
WILENTZ, GOLDMAN & SPITZER P.A.
125 Half Mile Road, Suite 100
Red Bank, NJ 07701
Phone: 732-855-6060
Facsimile: 732-726-4860
3M COMPANY: Guillen Sues Over Exposure to Toxic Film-Forming Foams
------------------------------------------------------------------
Nick Guillen, and other similarly situated v. 3M COMPANY (f/k/a
Minnesota Mining and Manufacturing Company); AGC CHEMICALS AMERICAS
INC.; AMEREX CORPORATION; ARCHROMA U.S. INC.; ARKEMA, INC.; BUCKEYE
FIRE EQUIPMENT COMPANY; CARRIER GLOBAL CORPORATION; CHEMDESIGN
PRODUCTS, INC.; CHEMGUARD, INC.; CHEMICALS, INC.; CHEMOURS COMPANY
FC, LLC; CHUBB FIRE, LTD; CLARIANT CORP.; CORTEVA, INC.; DEEPWATER
CHEMICALS, INC.; DU PONT DE NEMOURS INC. (f/k/a DOWDUPONT INC.);
DYNAX CORPORATION; E.I. DU PONT DE NEMOURS AND COMPANY;
KIDDE-FENWAL, INC.; KIDDE PLC; NATION FORD CHEMICAL COMPANY;
NATIONAL FOAM, INC.; THE CHEMOURS COMPANY; TYCO FIRE PRODUCTS LP,
as successor-in-interest to The Ansul Company; UNITED TECHNOLOGIES
CORPORATION; UTC FIRE & SECURITY AMERICAS CORPORATION, INC. (f/k/a
GE Interlogix, Inc.); Case No. 2:23-cv-01464-RMG (D.S.C., April 10,
2023), is brought for damages for personal injury resulting from
exposure to aqueous film-forming foams ("AFFF") containing the
toxic chemicals collectively known as per and polyfluoroalkyl
substances ("PFAS"). PFAS includes, but is not limited to,
perfluorooctanoic acid ("PFOA") and perfluorooctane sulfonic acid
("PFOS") and related chemicals including those that degrade to PFOA
and/or PFOS.
AFFF is a specialized substance designed to extinguish
petroleum-based fires. It has been used for decades by military and
civilian firefighters to extinguish fires in training and in
response to Class B fires. The Defendants collectively designed,
marketed, developed, manufactured, distributed, released, trained
users, produced instructional materials, promoted, sold, and/or
otherwise released into the stream of commerce AFFF with knowledge
that it contained highly toxic and bio persistent PFASs, which
would expose end users of the product to the risks associated with
PFAS. Further, the Defendants designed, marketed, developed,
manufactured, distributed, released, trained users, produced
instructional materials, promoted, sold and/or otherwise handled
and/or used underlying chemicals and/or products added to AFFF
which contained PFAS for use in firefighting.
PFAS binds to proteins in the blood of humans exposed to the
material and remains and persists over long periods of time. Due to
their unique chemical structure, PFAS accumulates in the blood and
body of exposed individuals. PFAS are highly toxic and carcinogenic
chemicals. Defendants knew, or should have known, that PFAS remain
in the human body while presenting significant health risks to
humans.
The Defendants' PFAS-containing AFFF products were used by the
Plaintiff in their intended manner, without significant change in
the products' condition. Plaintiff was unaware of the dangerous
properties of the Defendants' AFFF products and relied on the
Defendants' instructions as to the proper handling of the products.
Plaintiff's consumption, inhalation and/or dermal absorption of
PFAS from Defendant's AFFF products caused Plaintiff to develop the
serious medical conditions and complications alleged herein.
Through this action, the Plaintiff seeks to recover compensatory
and punitive damages arising out of the permanent and significant
damages sustained as a direct result of exposure to the Defendants'
AFFF products at various locations during the course of Plaintiff's
training and firefighting activities. Plaintiff further seeks
injunctive, equitable, and declaratory relief arising from the
same, says the complaint.
The Plaintiff regularly used, and was thereby directly exposed to,
AFFF in training and to extinguish fires during his working career
as a state police officer and was diagnosed with prostate cancer as
a result of exposure to the Defendants' AFFF products.
The Defendants are designers, marketers, developers, manufacturers,
distributors, releasers, instructors, promotors and sellers of PFAS
containing AFFF products or underlying PFAS containing chemicals
used in AFFF production.[BN]
The Plaintiff is represented by:
James E. Murrill, Jr., Esq.
Keith Jackson, Esq.
Jeremiah Mosley, Esq.
RILEY & JACKSON, P.C.
3530 Independence Dr.
Birmingham, AL 35209
Phone: 205-879-5000
Facsimile: 205-879-5901
3M COMPANY: Haines Sues Over Exposure to Toxic Chemicals
--------------------------------------------------------
Joseph Haines, Jr., and other similarly situated v. 3M COMPANY
(f/k/a Minnesota Mining and Manufacturing Company); AGC CHEMICALS
AMERICAS INC.; AMEREX CORPORATION; ARCHROMA U.S. INC.; ARKEMA,
INC.; BUCKEYE FIRE EQUIPMENT COMPANY; CARRIER GLOBAL CORPORATION;
CHEMDESIGN PRODUCTS, INC.; CHEMGUARD, INC.; CHEMICALS, INC.;
CHEMOURS COMPANY FC, LLC; CHUBB FIRE, LTD; CLARIANT CORP.; CORTEVA,
INC.; DEEPWATER CHEMICALS, INC.; DU PONT DE NEMOURS INC. (f/k/a
DOWDUPONT INC.); DYNAX CORPORATION; E.I. DU PONT DE NEMOURS AND
COMPANY; KIDDE-FENWAL, INC.; KIDDE PLC; NATION FORD CHEMICAL
COMPANY; NATIONAL FOAM, INC.; THE CHEMOURS COMPANY; TYCO FIRE
PRODUCTS LP, as successor-in-interest to The Ansul Company; UNITED
TECHNOLOGIES CORPORATION; UTC FIRE & SECURITY AMERICAS CORPORATION,
INC. (f/k/a GE Interlogix, Inc.); Case No. 2:23-cv-01465-RMG
(D.S.C., April 10, 2023), is brought for damages for personal
injury resulting from exposure to aqueous film-forming foams
("AFFF") containing the toxic chemicals collectively known as per
and polyfluoroalkyl substances ("PFAS"). PFAS includes, but is not
limited to, perfluorooctanoic acid ("PFOA") and perfluorooctane
sulfonic acid ("PFOS") and related chemicals including those that
degrade to PFOA and/or PFOS.
AFFF is a specialized substance designed to extinguish
petroleum-based fires. It has been used for decades by military and
civilian firefighters to extinguish fires in training and in
response to Class B fires. The Defendants collectively designed,
marketed, developed, manufactured, distributed, released, trained
users, produced instructional materials, promoted, sold, and/or
otherwise released into the stream of commerce AFFF with knowledge
that it contained highly toxic and bio persistent PFASs, which
would expose end users of the product to the risks associated with
PFAS. Further, the Defendants designed, marketed, developed,
manufactured, distributed, released, trained users, produced
instructional materials, promoted, sold and/or otherwise handled
and/or used underlying chemicals and/or products added to AFFF
which contained PFAS for use in firefighting.
PFAS binds to proteins in the blood of humans exposed to the
material and remains and persists over long periods of time. Due to
their unique chemical structure, PFAS accumulates in the blood and
body of exposed individuals. PFAS are highly toxic and carcinogenic
chemicals. Defendants knew, or should have known, that PFAS remain
in the human body while presenting significant health risks to
humans.
The Defendants' PFAS-containing AFFF products were used by the
Plaintiff in their intended manner, without significant change in
the products' condition. Plaintiff was unaware of the dangerous
properties of the Defendants' AFFF products and relied on the
Defendants' instructions as to the proper handling of the products.
Plaintiff's consumption, inhalation and/or dermal absorption of
PFAS from Defendant's AFFF products caused Plaintiff to develop the
serious medical conditions and complications alleged herein.
Through this action, the Plaintiff seeks to recover compensatory
and punitive damages arising out of the permanent and significant
damages sustained as a direct result of exposure to the Defendants'
AFFF products at various locations during the course of Plaintiff's
training and firefighting activities. Plaintiff further seeks
injunctive, equitable, and declaratory relief arising from the
same, says the complaint.
The Plaintiff regularly used, and was thereby directly exposed to,
AFFF in training and to extinguish fires during his working career
as a state police officer and was diagnosed with prostate cancer as
a result of exposure to the Defendants' AFFF products.
The Defendants are designers, marketers, developers, manufacturers,
distributors, releasers, instructors, promotors and sellers of PFAS
containing AFFF products or underlying PFAS containing chemicals
used in AFFF production.[BN]
The Plaintiff is represented by:
James E. Murrill, Jr., Esq.
Keith Jackson, Esq.
Jeremiah Mosley, Esq.
RILEY & JACKSON, P.C.
3530 Independence Dr.
Birmingham, AL 35209
Phone: 205-879-5000
Facsimile: 205-879-5901
3M COMPANY: Hasenberg Sues Over Exposure to Toxic Chemicals
-----------------------------------------------------------
Glen Hasenberg and Kayla Hasenberg, his wife, and other similarly
situated v. 3M COMPANY (f/k/a Minnesota Mining and Manufacturing
Company); AGC CHEMICALS AMERICAS INC.; AMEREX CORPORATION; ARCHROMA
U.S., INC.; ARKEMA, INC.; BUCK EYE FIRE EQUIPMENT COMPANY; CARRIER
GLOBAL CORPORATION; CHEMDESIGN PRODUCTS, INC.; CHEMGUARD, INC.;
CHEMICALS, INC.; CHEMOURS COMPANY FC, LLC; CHUBB FIRE, LTD;
CLARIANT CORP.; CORTEVA, INC. DEEPWATER CHEMICALS INC.; DU PONT DE
NEMOURS INC. (f/k/a DOWDUPONT INC.;) DYNAX CORPORATION; E.I. DU
PONT DE NEMOURS AND COMPANY; KIDDIE-FENWAL, INC.; KIDDIE PLC;
NATION FORD CHEMICAL COMPANY; NATIONAL FOAM, INC.; THE CHEMOURS
COMPANY; TYCO FIRE PRODUCTS LP, as Successor-in-interest to the
Ansul Company; UNITED TECHNOLOGIES CORPORATION; UTC FIRE & SECURITY
AMERICAS CORPORATION, INC. (f/k/a GE Interlogix, Inc.); and ABC
CORPORATIONS (1-50), Case No. 2:23-cv-01403-RMG (D.S.C., April 6,
2023), is brought for damages for personal injury resulting from
exposure to aqueous film-forming foams ("AFFF") containing the
toxic chemicals collectively known as per and polyfluoroalkyl
substances ("PFAS"). PFAS includes, but is not limited to,
perfluorooctanoic acid ("PFOA") and perfluorooctane sulfonic acid
("PFOS") and related chemicals including those that degrade to PFOA
and/or PFOS.
AFFF is a specialized substance designed to extinguish
petroleum-based fires. It has been used for decades by military and
civilian firefighters to extinguish fires in training and in
response to Class B fires. The Defendants collectively designed,
marketed, developed, manufactured, distributed, released, trained
users, produced instructional materials, promoted, sold, and/or
otherwise released into the stream of commerce AFFF with knowledge
that it contained highly toxic and bio persistent PFASs, which
would expose end users of the product to the risks associated with
PFAS. Further, the Defendants designed, marketed, developed,
manufactured, distributed, released, trained users, produced
instructional materials, promoted, sold and/or otherwise handled
and/or used underlying chemicals and/or products added to AFFF
which contained PFAS for use in firefighting.
PFAS binds to proteins in the blood of humans exposed to the
material and remains and persists over long periods of time. Due to
their unique chemical structure, PFAS accumulates in the blood and
body of exposed individuals. PFAS are highly toxic and carcinogenic
chemicals. Defendants knew, or should have known, that PFAS remain
in the human body while presenting significant health risks to
humans.
The Defendants' PFAS-containing AFFF products were used by the
Plaintiff in their intended manner, without significant change in
the products' condition. Plaintiff was unaware of the dangerous
properties of the Defendants' AFFF products and relied on the
Defendants' instructions as to the proper handling of the products.
Plaintiff's consumption, inhalation and/or dermal absorption of
PFAS from Defendant's AFFF products caused Plaintiff to develop the
serious medical conditions and complications alleged herein.
Through this action, the Plaintiff seeks to recover compensatory
and punitive damages arising out of the permanent and significant
damages sustained as a direct result of exposure to the Defendants'
AFFF products at various locations during the course of Plaintiff's
training and firefighting activities. Plaintiff further seeks
injunctive, equitable, and declaratory relief arising from the
same, says the complaint.
The Plaintiff regularly used, and was thereby directly exposed to,
AFFF in training and to extinguish fires during his working career
as a military and/or civilian firefighter and was diagnosed with
ulcerative colitis and/or other medical conditions as a result of
exposure to the Defendants' AFFF products.
The Defendants are designers, marketers, developers, manufacturers,
distributors, releasers, instructors, promotors and sellers of PFAS
containing AFFF products or underlying PFAS containing chemicals
used in AFFF production.[BN]
The Plaintiff is represented by:
Stephen T. Sullivan, Jr., Esq.
John E. Keefe, Jr., Esq.
WILENTZ, GOLDMAN & SPITZER P.A.
125 Half Mile Road, Suite 100
Red Bank, NJ 07701
Phone: 732-855-6060
Facsimile: 732-726-4860
3M COMPANY: Kinsey Sues Over Exposure to Toxic Film-Forming Foams
-----------------------------------------------------------------
Alfred Kinsey, Jr., and other similarly situated v. 3M COMPANY
(f/k/a Minnesota Mining and Manufacturing Company); AGC CHEMICALS
AMERICAS INC.; AMEREX CORPORATION; ARCHROMA U.S. INC.; ARKEMA,
INC.; BUCKEYE FIRE EQUIPMENT COMPANY; CARRIER GLOBAL CORPORATION;
CHEMDESIGN PRODUCTS, INC.; CHEMGUARD, INC.; CHEMICALS, INC.;
CHEMOURS COMPANY FC, LLC; CHUBB FIRE, LTD; CLARIANT CORP.; CORTEVA,
INC.; DEEPWATER CHEMICALS, INC.; DU PONT DE NEMOURS INC. (f/k/a
DOWDUPONT INC.); DYNAX CORPORATION; E.I. DU PONT DE NEMOURS AND
COMPANY; KIDDE-FENWAL, INC.; KIDDE PLC; NATION FORD CHEMICAL
COMPANY; NATIONAL FOAM, INC.; THE CHEMOURS COMPANY; TYCO FIRE
PRODUCTS LP, as successor-in-interest to The Ansul Company; UNITED
TECHNOLOGIES CORPORATION; UTC FIRE & SECURITY AMERICAS CORPORATION,
INC. (f/k/a GE Interlogix, Inc.); Case No. 2:23-cv-01466-RMG
(D.S.C., April 10, 2023), is brought for damages for personal
injury resulting from exposure to aqueous film-forming foams
("AFFF") containing the toxic chemicals collectively known as per
and polyfluoroalkyl substances ("PFAS"). PFAS includes, but is not
limited to, perfluorooctanoic acid ("PFOA") and perfluorooctane
sulfonic acid ("PFOS") and related chemicals including those that
degrade to PFOA and/or PFOS.
AFFF is a specialized substance designed to extinguish
petroleum-based fires. It has been used for decades by military and
civilian firefighters to extinguish fires in training and in
response to Class B fires. The Defendants collectively designed,
marketed, developed, manufactured, distributed, released, trained
users, produced instructional materials, promoted, sold, and/or
otherwise released into the stream of commerce AFFF with knowledge
that it contained highly toxic and bio persistent PFASs, which
would expose end users of the product to the risks associated with
PFAS. Further, the Defendants designed, marketed, developed,
manufactured, distributed, released, trained users, produced
instructional materials, promoted, sold and/or otherwise handled
and/or used underlying chemicals and/or products added to AFFF
which contained PFAS for use in firefighting.
PFAS binds to proteins in the blood of humans exposed to the
material and remains and persists over long periods of time. Due to
their unique chemical structure, PFAS accumulates in the blood and
body of exposed individuals. PFAS are highly toxic and carcinogenic
chemicals. Defendants knew, or should have known, that PFAS remain
in the human body while presenting significant health risks to
humans.
The Defendants' PFAS-containing AFFF products were used by the
Plaintiff in their intended manner, without significant change in
the products' condition. Plaintiff was unaware of the dangerous
properties of the Defendants' AFFF products and relied on the
Defendants' instructions as to the proper handling of the products.
Plaintiff's consumption, inhalation and/or dermal absorption of
PFAS from Defendant's AFFF products caused Plaintiff to develop the
serious medical conditions and complications alleged herein.
Through this action, the Plaintiff seeks to recover compensatory
and punitive damages arising out of the permanent and significant
damages sustained as a direct result of exposure to the Defendants'
AFFF products at various locations during the course of Plaintiff's
training and firefighting activities. Plaintiff further seeks
injunctive, equitable, and declaratory relief arising from the
same, says the complaint.
The Plaintiff regularly used, and was thereby directly exposed to,
AFFF in training and to extinguish fires during his working career
as a state police officer and was diagnosed with prostate cancer as
a result of exposure to the Defendants' AFFF products.
The Defendants are designers, marketers, developers, manufacturers,
distributors, releasers, instructors, promotors and sellers of PFAS
containing AFFF products or underlying PFAS containing chemicals
used in AFFF production.[BN]
The Plaintiff is represented by:
James E. Murrill, Jr., Esq.
Keith Jackson, Esq.
Jeremiah Mosley, Esq.
RILEY & JACKSON, P.C.
3530 Independence Dr.
Birmingham, AL 35209
Phone: 205-879-5000
Facsimile: 205-879-5901
AA FOREST: Court Grants Bid to Dismiss Counterclaims in Yuan Suit
-----------------------------------------------------------------
Judge Ann M. Donnelly of the U.S. District Court for the Eastern
District of New York grants the Plaintiffs' motion to dismiss
counterclaims filed in the lawsuit entitled QUNBIN YUAN, et al.,
Plaintiffs v. AA FOREST, INC., et al., Defendants, Case No.
20-CV-5484 (AMD) (MMH) (E.D.N.Y.).
The Plaintiffs brought this putative collective and class action
asserting claims under the Federal Labor Standards Act ("FLSA"),
and the New York Labor Law ("NYLL") against AA Forest, Inc.,
LaserShip, Inc., You Liang Guo and Brett Bissell. Each Defendant
filed a motion to dismiss for failure to state a claim; the Court
granted those motions on March 28, 2022.
The Plaintiffs sought leave to amend, and Judge Donnelly granted
the request as to Defendants AA Forest and Guo on Nov. 18, 2022.
However, Judge Donnelly denied the Plaintiffs' request as to
Defendants LaserShip and Bissell, because the Plaintiffs' proposed
allegations did not withstand a motion to dismiss.
The Plaintiffs filed an amended complaint on Jan. 4, 2023, and
Defendants AA Forest and Guo filed their answer and counterclaims
on Jan. 20, 2023. Before the Court is the Plaintiffs' motion to
dismiss the counterclaims for failure to state a cause of action.
In the amended complaint, the Plaintiffs claim that they were
employees of Defendants AA Forest and Guo and that these Defendants
did not pay them a minimum wage, overtime or spread-of-hours pay,
did not reimburse them for various employment-related expenses, and
did not provide them with pay notices, as required under FLSA and
NYLL.
The Defendants assert two counterclaims in response. In the first,
which consists of one paragraph, the Defendants state that "every
Plaintiff was an independent contractor," because each could make
his own schedule, controlled his routes and could hold other jobs
simultaneously. The Defendants do not explain how the Plaintiffs'
alleged status as independent contractors harmed them and do not
request any relief on that basis.
The second counterclaim is entitled "Counterclaim Against Plaintiff
Cevallo." In it, the Defendants repeat the allegations laid out in
the first counterclaim and additionally accuse the Plaintiffs of
(1) recklessly commencing this action without any due diligence and
without any factual ground, good cause or justification; (2) making
misrepresentation and false statements and fabrications in the
complaint; and (3) filing a complaint with the intention to extort
money from the Defendants.
According to the Defendants, these actions caused them to incur
legal fees to defend themselves and suffer loss of appetite and
sleep, emotional distress and damage. For these injuries, the
Defendants seek a judgment against the Plaintiffs jointly and
severally for their damages, legal fees and costs of this action.
Judge Donnelly finds that the counterclaims fall far short of the
12(b)(6) standard. She points out that the counterclaims in this
case do not identify a cause of action at all. The Defendants cite
no federal, state or common law that the Plaintiffs supposedly
violated by filing this action or by claiming that they were
employees rather than independent contractors.
Without knowing the "elements" of the cause of action, the Court
cannot determine whether the Defendants' factual allegations
plausibly suggest an entitlement to relief.
Because the counterclaims are no more than unadorned,
the-defendant-unlawfully-harmed-me accusations, they must be
dismissed, Judge Donnelly says.
For these reasons, the Defendants' counterclaims are dismissed. The
Defendants may replead the counterclaims within 30 days of the date
of this order.
A full-text copy of the Court's Memorandum Decision and Order dated
May 8, 2023, is available at https://tinyurl.com/2f2vyecm from
Leagle.com.
ABBOTT LABORATORIES: Bid to Partially Dismiss LeGrand Suit Granted
------------------------------------------------------------------
In the case, CONDALISA LEGRAND, et al., Plaintiffs v. ABBOTT
LABORATORIES, Defendant, Case No. 22-cv-05815-TSH (N.D. Cal.),
Magistrate Judge Thomas S. Hixon of the U.S. District Court for the
Northern District of California grants Abbott's motion for partial
dismissal pursuant to Federal Rules of Civil Procedure 12(b)(6).
LeGrand brings the putative class action against Abbott, alleging
certain statements on the labels of Abbott's Ensure(R) nutrition
drinks are false and misleading. Abbott now moves for partial
dismissal pursuant to Federal Rules of Civil Procedure 12(b)(6),
arguing LeGrand lacks standing to assert claims based on one of its
label statements, "All-in-One blend to support your health."
LeGrand filed an Opposition and Abbott filed a Reply. Judge Hixon
finds the matter suitable for disposition without oral argument and
vacates the May 18, 2023 hearing.
Abbott manufactures, markets, and distributes several different
"nutrition" shakes and drinks under its Ensure(R) brand. Among
those Ensure products are six at issue in this case: Ensure(R)
Original Nutrition Shake, Ensure(R) Complete Nutrition Shake,
Ensure(R) Compact Therapeutic Nutrition Shake, Ensure(R) Clear
Nutrition Drink, Ensure(R) Original Nutrition Powder, and Ensure(R)
Enlive Advanced Nutrition Shake. Abbott markets the products with
health and wellness labeling, such as "#1 Doctor Recommended Brand"
and "Complete, Balanced Nutrition for everyday health."
LeGrand is a California resident who purchased the Ensure Original
Nutrition Shake. In purchasing the product, she was exposed to and
relied on Abbott's label representations, such as that the products
were "Doctor Recommended" and "nutrition shakes." There is
scientific evidence demonstrating that consuming sugar-sweetened
beverages harms, rather than supports, overall health. Abbott adds
up to 22 grams of sugar per serving to the Ensure Nutrition Drinks.
As a result of this sugar content and scientific evidence, LeGrand
alleges the labeling on the products advertising them as balanced,
nutritious, and healthy is false and misleading.
On Oct. 6, 2022, LeGrand filed the initial complaint in this
matter, along with a co-plaintiff, Larissa Bates, who is a resident
of New York and purchased Ensure Complete Nutrition Shakes there.
She and Bates sought to bring a class action on behalf of
themselves and other consumers who bought the products, defining
members of a nationwide class, as well as California and New York
subclasses, as "all persons in the United States, and subclasses of
all persons in California and in New York, who, at any time from
four years preceding the date of the filing of this Complaint to
the time a class is notified (the 'Class Period'), purchased, for
person or household use, and not for resale or distribution, any of
the Ensure Nutrition Drinks (the 'Class')."
The Plaintiffs brought the following causes of action: (1)
violation of California's Unfair Competition Law ("UCL"), Cal. Bus.
& Prof. Code Sections 17200 et seq.; (2) violation of California's
False Advertising Law ("FAL"), id. Sections 17500 et seq.; (3)
violation of California's Consumer Legal Remedies Act ("CLRA"),
Cal. Civ. Code Sections 1750 et seq.; (4) Breach of Express
Warranties, Cal. Com. Code Section 2313(1); (5) Breach of Implied
Warranty of Merchantability, id. Section 2314; (6) violation of
N.Y. Gen. Bus. Law. Section 349; (7) violation of N.Y. Gen. Bus.
Law. Section 350; (8) Unjust Enrichment; (9) Negligent
Misrepresentation; and (10) Intentional Misrepresentation.
On Dec. 12, 2022, Abbott moved to dismiss pursuant to Rules
12(b)(2) and 12(b)(6), arguing the Court lacked jurisdiction as to
New York resident Bates's claims and that the Plaintiffs' claims
failed under several grounds, including statutory standing and
preemption. On Feb. 22, 2023, the Court granted in part and denied
in part Abbott's motion.
As to Bates's claims, the Court granted Abbott's motion, finding it
lacks personal jurisdiction but granting leave to amend should
Bates have claims pursuant to federal questions. As to LeGrand, it
found she has standing under the UCL, FAL and CLRA to challenge
advertising for products she did not purchase. It noted LeGrand may
have standing to assert claims for unnamed class members based on
products she did not purchase so long as the products and alleged
misrepresentations are substantially similar.
Abbott also argued that many of its statements constitute nutrient
content statements under federal law and thus the state consumer
protection claims based on those statements were preempted. The
Court noted the Food and Drug Administration ("FDA") has declined
to prohibit food labeling which advertises a product as "healthy"
when it contains high amounts of sugar. Thus, as state law
restrictions must be identical to Food, Drug, and Cosmetic Act
restrictions on labeling of nutrient levels, LeGrand's state law
claims would be preempted to the extent she argued that nutrient
content claims on Ensure labels are misleading because they
indicate the products are healthy despite containing high levels of
sugar, but they would not be preempted where they are based on food
labeling statements which are not nutrient content claims.
The Court found that "advanced nutrition shake," "therapeutic
nutrition shake," "nutrition drink," and "nutrition powder" on the
labels for Ensure Enlive Advanced Nutrition Shake, Ensure Compact
Therapeutic Nutrition Shake, Ensure Clear Nutrition Drink, and
Ensure Original Nutrition Powder are not nutrient content claims as
they are not placed in close enough proximity to the underlying
nutrient claims to be themselves considered nutrient content. It
also found that "Immune * Muscle * Heart * Digestion * Bone" on the
front of the packaging for Ensure Complete Nutrition Shake stands
separate from other references to nutrient content on the packaging
and therefore is not an implied nutrient content claim.
However, the Court found the following phrasing is implied nutrient
content suggesting that the food, because of its nutrient content,
may be useful in maintaining healthy dietary practices: "Complete,
Balanced Meal replacement," "Complete, Balanced Nutrition," "All in
One Heart, Immune, and Digestion," "our most advanced nutritional
product," and "All-in-One blend to support your health." It
therefore found LeGrand could not rely upon these statements to
argue that the advertising for Ensure products is misleading
because it suggests the products are healthy despite unhealthy
added sugar.
LeGrand filed the operative first amended complaint on March 10,
2023. She now brings the following causes of action: (1) violation
of the UCL; (2) violation of the FAL; (3) violation of the CLRA;
(4) Breach of Express Warranties, Cal. Com. Code Section 2313(1);
(5) Breach of Implied Warranty of Merchantability, id. Section
2314; (6) Unjust Enrichment; (7) Negligent Misrepresentation; and
(8) Intentional Misrepresentation.
Abbott filed the present motion to dismiss on April 7, 2023. It
argues LeGrand has improperly included one statement— "All-in-One
blend to support your health" -- by changing her "added sugar"
theory with respect to this statement and instead alleging the FDA
prohibits the use of the word 'health' in nutrient content claims
on foods that are not "low fat" or "low saturated fat." It argues
LeGrand lacks standing to assert this theory because she did not
purchase Ensure Enlive and therefore didn't rely on it, and because
her claim related to fat content is not substantially like her
claim regarding sugar content.
Judge Hixon finds LeGrand's challenge to the statement "All-in-One
blend to support your health" must be dismissed because she did not
purchase Ensure(R) Enlive (which is the only product with that
statement), the claim does not satisfy the substantial similarity
test, and she cannot avoid preemption by alleging that an implied
nutrient content claim is misbranded due to one nutrient (fat),
then challenge that same claim with respect to another nutrient
(sugar).
Therefore, Judge Hixon grants Abbott's Motion to Dismiss LeGrand's
First Amended Complaint to the extent it challenges the statement
"All-in-One blend to support your health." He denies leave to amend
on the ground that it would be futile.
The Court will conduct a case management conference on June 15,
2023, at 10:00 a.m. by Zoom video conference. The webinar link and
instructions are located at
https://cand.uscourts.gov/judges/hixson-thomas-s-tsh/. This
conference will be attended by lead trial counsel. By June 8, 2023,
the parties will file a Joint Case Management Statement containing
the information in the Standing Order for All Judges in the
Northern District of California, available at:
http://cand.uscourts.gov/tshorders.The Joint Case Management
Statement form may be obtained at:
http://cand.uscourts.gov/civilforms.
A full-text copy of the Court's May 16, 2023 Order is available at
https://rb.gy/m9wp2 from Leagle.com.
ABBOTT LABORATORIES: Class Cert Bids Filing Due Nov. 27 in Conner
-----------------------------------------------------------------
In the class action lawsuit captioned as Conner v. Abbott
Laboratories Inc., Case No. 3:21-cv-01463 (S.D. Ill.), the Hon.
Judge Staci M. Yandle entered an order granting the motion to amend
the scheduling order as follows:
-- The current scheduling order deadlines for discovery and
class
certification motions and the settings for the Final Pretrial
Conference and Jury Trial are vacated.
-- All discovery is to be completed by October 30, 2023.
-- Class certification motions are due by November 27, 2023.
-- The Final Pretrial Conference is June 26, 2024, at 10:30 A.M.
and Jury Trial is July 8, 2024, at 9:00 A.M. at the Benton
Courthouse before Judge Staci M. Yandle.
The nature of suit torts -- personal property -- other fraud.
A copy of the Court's order dated May 12, 2023, is available from
PacerMonitor.com at no extra charge.[CC]
AETNA LIFE: Court Approves Issuance of Class Cert Notice in Wolff
-----------------------------------------------------------------
In the class action lawsuit captioned as JOANNE WOLFF, individually
and on behalf of a Class of Similarly Situated Individuals, v.
AETNA LIFE INSURANCE COMPANY, Case No. 4:19-cv-01596-MWB (M.D.
Pa.), the Hon. Judge Matthew W. Brann entered an order that:
1. The Court authorizes the Notice provided by the Plaintiff (as
modified by the Court to sustain in part the Defendant's
objections) to be immediately issued to all relevant
individuals.
2. The Notice shall be mailed by first class mail and/or e-mail
at
the Plaintiff's cost and shall be mailed to those individuals
on
or before Friday, June 9, 2023.
3. As provided in the Notice, potential class members must opt
out
of this action on or before Monday, August 7, 2023.
Aetna is an American managed health care company that sells
traditional and consumer directed health care insurance and related
services.
A copy of the Court's order dated May 12, 2023, is available from
PacerMonitor.com at https://bit.ly/3MQiVvH at no extra charge.[CC]
ALAMEDA COUNTY, CA: Conditional Status of Collective Action Sought
------------------------------------------------------------------
In the class action lawsuit captioned as ANTONIO LOERA, JR. and
CHARLOTTE DANIELS, on behalf of themselves and all others similarly
situated, v. COUNTY OF ALAMEDA, a political subdivision of the
State of California, Case No. 3:23-cv-00792-LB (N.D. Cal.), the
Plaintiffs ask the Court for an order conditionally certifying this
action as a collective action under the Fair Labor Standards Act
(FLSA) and authorizing distribution of judicial notice.
The Plaintiffs move for conditional certification of the following
collective:
"All Sheriff's Safety Aides and individuals in similar or
related
positions who worked for the County of Alameda's Alameda County
Sheriff’s Office in and around the Oakland International
Airport at
any time from February 22, 2020, to the final disposition of
this
case.
To facilitate notice, the Plaintiffs also request that the within
ten days of the Court's order, the County of Alameda be required to
provide the Plaintiffs' counsel with a list of all Sheriff's Safety
Aides (in Excel or similar format) who are, or were, employed by
the County of Alameda at any time during the three years preceding
the date this lawsuit was filed through the date of the hearing on
this motion.
This list should include each individual's (1) name, (2) job title,
(3) last known address and telephone number, (4) dates of
employment, (5) location of employment, (6) employee number, (7)
last known personal email address (for former employees) or work
email address (for current employees), and (8) social security
number (last four digits only).
The Plaintiffs seek a 90-day notice period with a reminder
postcard, with notice to be distributed by the Plaintiffs' counsel
via U.S. Mail, email, and text message with authorization for
potential Collective Action Members to respond by U.S. Mail, email,
or fax.
The Plaintiffs further request approval of the proposed form of
Notice and Consent to Join form and authorization of both forms to
be sent by U.S. Mail, email, and text-message to all potential FLSA
Collective members, with identical reminder notices to potential
FLSA Collective members to issue after the expiration of 30 days
and 60 days from the day that the original notice is transmitted to
any potential FLSA Collective member who has not responded.
A copy of the Plaintiff's motion dated May 12, 2023, is available
from PacerMonitor.com at https://bit.ly/45p2Vbq at no extra
charge.[CC]
The Plaintiffs are represented by:
Sharon R. Vinick, Esq.
Katherine L. Smith, Esq.
LEVY VINICK BURRELL HYAMS LLP
180 Grand Avenue, Suite 1300
Oakland, CA 94612
Telephone: (510) 318-7700
Facsimile: (510) 318-7701
E-mail: sharon@levyvinick.com
katherin@levyvinick.com
- and -
Rachel Terp, Esq.
TERP LAW
2831 Telegraph Avenue
Oakland, CA 94609
Telephone: (510) 550-5103
E-mail: rachel@terplaw.com
AMAZON.COM SERVICES: Wins Bid to Dismiss 2nd Amended Chaves Suit
----------------------------------------------------------------
Judge Tana Lin of the U.S. District Court for the Western District
of Washington, Seattle, adopts the report and recommendation issued
in the lawsuit styled DEBBIE CHAVES, on behalf of herself and all
others similarly situated, Plaintiffs v. AMAZON.COM SERVICES LLC,
Defendant, Case No. 2:21-cv-01213-TL (W.D. Wash.), which recommends
granting of the Defendant's motion to dismiss the Second Amended
Complaint.
The matter comes before the Court on the Report and Recommendation
of the Honorable Brian A. Tsuchida, United States Magistrate Judge
("the Report"), and the Plaintiffs' Objection to the Report. The
Defendant responded to the Plaintiffs' Objection. The Court
overrules the objections to the Report.
The Plaintiffs bring a civil class action lawsuit alleging a breach
of contract and violations of Massachusetts, New York, and
Washington consumer protection laws by Amazon.com for collecting
state-based sales tax on their purchases of: (1) a gift card for
digital currency Robux used in the video game Roblox; and (2) a
PlayStation Plus 1-Month Membership.
The Plaintiffs have amended their Complaint a total of three times.
They originally filed the lawsuit on Sept. 7, 2021, and filed a
First Amended Complaint ("FAC") on Oct. 8, 2021. After the
Defendants filed a motion to dismiss the FAC, the Parties notified
the Court of the Plaintiffs' intention to file another amended
complaint as of right pursuant to Federal Rule of Civil Procedure
15(a)(1)(A). The Plaintiffs filed a Second Amended Complaint
("SAC") on Dec. 30, 2021.
At issue is the Defendant's motion to dismiss the SAC.
As an initial matter, the Report notes that the Plaintiffs appear
to have abandoned their allegation that the PlayStation Membership
Cards are functionally gift cards as, in their response to the
Defendant's motion to dismiss, they only raise an argument that
they are digital goods. The Report then goes on to analyze whether
the Play Station Membership Cards qualify as "digital goods" or
"virtual goods," ultimately finding that they do not.
As the Plaintiffs do not address the substantive findings regarding
the PlayStation Membership Cards in the Report, the Court adopts
the findings with regard to the Play Station Membership Cards and
dismisses with prejudice all claims based on the PlayStation
product. As a result, the Court also dismisses from the case
Plaintiff Amanda Evans, who is only alleged in the SAC to have
purchased a PlayStation Membership Card.
In their objections, Judge Lin notes, the Plaintiffs largely repeat
arguments they made in their response to the Defendant's motion to
dismiss except for three points: (1) the Report's discussion
regarding the Defendant's self-labeling of the 800 Robux Card as a
"Digital Gift Card"; (2) the Report's omission of a discussion of
Massachusetts tax law concerning gift cards; and (3) the
Plaintiffs' request to stay a ruling under the primary jurisdiction
doctrine.
In their objection, Plaintiffs assert that "the product's
self-labeling should control." The only authority they cite for
this provision is an article which states that "'sales tax law is
usually "form" driven,' except in certain contexts like lease
transactions" (quoting Charles Kearns & Michael J. Kerman, Sales
Tax Considerations In Financing Transactions - Does Substance Over
Form Govern?, 25 J. Multistate Tax'n 20, 24 (2016)).
However, Judge Lin finds this statement does not definitively state
that sales tax is always form driven, is not supported by any
caselaw or authority, and is discussing lease transactions in
particular. Therefore, the Court does not find this citation
persuasive.
The Plaintiffs correctly note in their objection that the Report
did not address Massachusetts tax law concerning gift cards, Judge
Lin says. However, one of the directives from the Massachusetts
Department of Revenue cited by the Plaintiffs dooms its argument.
Judge Lin opines that true gift cards are not taxed when they are
issued because the tax is due when the gift card is redeemed. In
other words, to charge at the point of sale of a true gift card and
then again when the gift card is redeemed would be duplicate
taxation on the same product.
According to Judge Lin, if the Plaintiffs were charged a sales tax
when they redeemed their Robux, this would support their argument
that the product they bought from the Defendant was a gift card
that was not subject to tax. This is certainly information within
the control of the Plaintiffs that is available without discovery
and could have been included in any of three versions of their
complaint. The Plaintiffs included in the SAC multiple screenshots
of various transactions in which they were or were not charged
sales tax. As a result, the Court can only conclude that the
Plaintiffs were not charged a sales tax upon redeeming the Robux
they purchased from the Defendant. Therefore, Massachusetts law
does not save their claim.
After the Report was issued and on the same day they filed their
objections (July 8, 2022), the Plaintiffs submitted a request to
the Massachusetts Department of Revenue for clarification on
whether the Robux Gift Card is subject to sales tax. The following
day, the Plaintiffs submitted a similar request to the New York
State Department of Taxation and Finance.
Judge Lin points out that the Plaintiffs could have made this
request before they first filed their complaint or at any time in
the following ten months before they filed their objections.
Indeed, by November 2021 and before filing the SAC, the Plaintiffs
knew what the Defendant would argue on a motion to dismiss. The
Plaintiffs knew in November 2021 that the Defendant would challenge
whether they had properly exhausted their administrative remedies
in pursuing relief from the state taxing authorities.
The Plaintiffs provide neither any exceptional circumstances nor
any explanation at all as to why they could not request the opinion
letters from the various state taxing authorities until after the
Report had been issued (and until the due date of their
objections), Judge Lin notes. The Court finds the Plaintiffs'
request comes too late, and the Court will not consider this new
argument that is raised for the first time in the Plaintiffs'
objections.
For these reasons, the Court orders that the:
(1) Report and Recommendation is adopted;
(2) Plaintiffs' objections are overruled;
(3) Defendant's motion to dismiss the Second Amended Complaint
is granted and this matter is dismissed with prejudice and
without leave to amend;
(4) Defendant's motion to dismiss the First Amended Complaint
is stricken as moot; and
(5) Clerk is directed to send copies of this Order to the
Parties and to Judge Tsuchida.
A full-text copy of the Court's Order dated May 8, 2023, is
available at https://tinyurl.com/v5nfth from Leagle.com.
AMEC FOSTER: Wadley Class Cert Bid Due October 6
------------------------------------------------
In the class action lawsuit captioned as LISA A. WADLEY,
individually, and on behalf of all others similarly situated, v.
AMEC FOSTER WHEELER USA CORPORATION; WOOD ENVIRONMENT &
INFRASTRUCTURE SOLUTIONS, INC., and DOES 1 through 10, inclusive,
Case No. 5:23-cv-00224-SSS-KK (C.D. Cal.), the Hon. Judge Sunshine
Suzanne Sykes entered an order granting joint stipulation and
request to modify scheduling order as follows:
-- The Plaintiff's Motion: October 6, 2023
-- The Defendants' Opposition: December 15, 2023
-- Class Certification Discovery January 5, 2024
Deadline:
-- The Plaintiff's Reply: January 5, 2024
-- Hearing: February 2, 2024
A copy of the Court's order dated May 12, 2023, is available from
PacerMonitor.com at https://bit.ly/3BNHHq8 at no extra charge.[CC]
APPLE INC: $50M Butterfly Keyboard Settlement Granted Final OK
--------------------------------------------------------------
Rajesh Regmi of Gizchina reports that in November 2022, Apple
agreed to a $50 million settlement to resolve a class-action
lawsuit over its butterfly keyboard design. The settlement has now
been approved by a federal judge this week. And the payout of this
settlement is expected to begin soon.
BUTTERFLY KEYBOARD SAGA
In 2015, Apple introduced the butterfly keyboard in the 12-inch
MacBook. The keyboard was designed to be thinner and more
responsive than previous MacBook keyboards. But it quickly became
clear that it was also more fragile. Users reported problems with
keys getting stuck, breaking, or repeating letters. Apple issued
several revisions to the keyboard, but none of them were able to
fully address the problems.
In turn, Apple faced a class-action lawsuit filed by MacBook owners
who had been affected by the keyboard problems. In November, Apple
settled the class action lawsuit as a judge approved the proposal
to pay $50 million to affected customers.
FINAL APPROVAL GRANTED
Now, as reported by Reuters, a U.S. judge has given final approval
for the $50 million settlement. Under this, affected MacBook owners
will receive between $50 and $395 payout from Apple.
Some members of the class-action lawsuit had argued that the middle
tier of the settlement is insufficient. Under the payout structure,
this tier pays out $125 to MacBook users who obtained a single
keyboard replacement from Apple.
But the judge rejected those claims. He said that the possibility
that a better settlement may have been reached is not a good enough
reason to deny approval. Some MacBook users also argued that the
settlement should include compensation to MacBook owners who
experienced keyboard failures but who did not get them repaired.
This, too, was rejected by the judge.
The window to submit your claim for the lawsuit expired back in
March. More than 86,000 claims were submitted. So if you submitted
a claim, you may soon receive money from Apple. There is no word
yet on when payments to class members will begin. [GN]
APPLE INC: Doe Suit Remanded to St. Clair Circuit Court in Illinois
-------------------------------------------------------------------
Chief District Judge Nancy J. Rosenstengel of the U.S. District
Court for the Southern District of Illinois remands the lawsuit
titled JANE DOE, by and through next friend John Doe, RICHARD
ROBINSON, and YOLANDA BROWN, on behalf of themselves and all other
persons similarly situated, Plaintiffs v. APPLE INC., Defendant,
Case No. 3:22-CV-2575-NJR (S.D. Ill.), to the Circuit Court of St.
Clair County, Illinois.
For the third time, Defendant Apple Inc. asks the Court to assert
federal subject matter jurisdiction over the Plaintiffs' claim that
it violated section 15(c) of Illinois' Biometric Information
Privacy Act ("BIPA"). For the third time, the Plaintiffs oppose
federal jurisdiction. And, for the third time, the Court remands
this claim to the Circuit Court of St. Clair County, Illinois.
The Plaintiffs initially filed suit in state court in March 2020,
alleging that Apple violated BIPA by using its Photos App software
to collect and store biometric data--faceprints--without consent
from Illinois citizens. Apple subsequently removed the action to
this Court pursuant to the Class Action Fairness Act ("CAFA") (Doe
v. Apple, No. 3:20-cv-421-NJR (S.D. Ill.)).
After raising the issue of its own subject matter jurisdiction, the
Court found the Plaintiffs lacked standing to assert BIPA section
15(a) and (c) claims in federal court. Apple appealed that
decision, and the Seventh Circuit vacated the Court's remand order
in light of intervening precedent. On reconsideration, the Court
found the Plaintiffs had standing to maintain their BIPA section
15(a) and (b) claims in federal court, but that the Plaintiffs'
claim based on section 15(c) still belonged in state court.
On Jan. 20, 2022, the Plaintiffs filed an amended complaint in St.
Clair County, alleging one violation of BIPA section 15(c). Apple
filed a motion to dismiss the amended complaint, which the state
court denied in a written order on Oct. 10, 2022. The order was
based on a proposed order submitted by the Plaintiffs, which the
state court adopted with few changes. On Nov. 4, 2022, purportedly
on the basis of the findings drafted by the Plaintiffs and entered
by the state court regarding their section 15(c) claim, Apple
removed the case to this Court.
The Plaintiffs now move to remand their section 15(c) claim to St.
Clair County. They argue that Apple's removal to federal court is
untimely, given that it occurred 10 months after they filed their
amended state court complaint in January 2022. They further argue
there is simply no basis for removing the action to federal court.
The Plaintiffs assert that their BIPA section 15(c) claim has
remained the same throughout this litigation, and there is no
authority for Apple to remove the case based on findings made by
the state court in its order entered on Oct. 10, 2022. They request
that the Court grant them fees and costs incurred as a result of
the improper removal under Section 1447(c). Alternatively, they ask
for Rule 11(c) sanctions.
Apple responded in opposition on Jan. 13, 2023. It argues that it
has satisfied the requirements for removal under CAFA, it removed
the case in a timely manner, and the Plaintiffs' section 15(c)
claim, as reframed by the state court's order, now alleges that
Apple disseminates their individual biometric data. In other words,
because the state court purportedly construed the Plaintiffs' state
court complaint to include a claim that Apple commercially
disseminates biometric data, they have now alleged an
individualized injury and this Court has subject matter
jurisdiction over their section 15(c) claim.
The Plaintiffs filed a reply in support of their motion on Feb. 3,
2023, arguing again that Apple's removal was untimely and that
there is nothing in the October 10 order stating that Apple
profited from the Plaintiffs' individual biometric data.
Judge Rosenstengel notes, among other things, that the state court
looked at the Plaintiffs' aggrievement under Rosenbach v. Six Flags
Ent. Corp., 129 N.E.3d 1197 (Ill. 2019). The court concluded that
the Plaintiffs allege Apple's section 15(c) violation invaded the
legal rights of the Plaintiffs and class members.
Under Rosenbach, Judge Rosenstengel opines the Plaintiffs need not
show further injury or damage beyond the statutory violation. She
finds that the Plaintiffs have adequately alleged that they are
aggrieved under Rosenbach. Accordingly, the state court denied
Apple's motion to dismiss.
Twenty-five days later, Apple removed the case to this Court.
Apple filed its Notice of Removal on Nov. 4, 2022, which is less
than 30 days after the state court entered its order on Oct. 10,
2022. Apple argues, the case became removable on Oct. 10, 2022.
While the Court ultimately disagrees that this case belongs in
federal court, the Court finds that Apple's Notice of Removal was
timely filed within 30 days of the state court's order that
allegedly revealed a basis for removal.
Although Apple timely filed its Notice of Removal, the Court finds
that Apple's grounds for removal are insufficient to keep the case
in federal court.
The Court previously remanded the Plaintiffs' section 15(c) claim,
twice, because they alleged Apple used its facial recognition
technology to sell more devices, advertise its software, and to
give Apple an edge over competitors. As the Plaintiffs did not
allege Apple sold or otherwise profited from their individual
biometric data, however, the Court found the Plaintiffs failed to
allege a particularized or concrete injury necessary for Article
III standing.
Now, Apple argues, the state court--through its adoption of the
Plaintiffs' proposed order--has completely reframed their theory of
the case. Apple claims that the Plaintiffs, for the first time,
allege the "commercial dissemination" of their and other class
members' biometric data. Apple also contends that the state court
concluded the Plaintiffs have alleged an unlawful dissemination of
their private, biometric data.
Judge Rosenstengel finds that Apple has cited no authority
indicating a state trial court can change, reframe, or add
allegations to the claims made by a plaintiff. Nor does this Court
find that the state court modified or reframed the Plaintiffs'
claim to allege an individualized injury.
Nowhere in their amended complaint, however, do the Plaintiffs
allege their personal biometric information has been disclosed,
distributed, or disseminated, Judge Rosenstengel says. Moreover,
even if the state court did reframe the Plaintiffs' claims, which
it did not, none of the statements interpreting their Amended
Complaint are binding on this Court.
For these reasons, the Court again finds that the Plaintiffs do not
have standing to maintain their BIPA section 15(c) claim in federal
court. Accordingly, it must be remanded to the Circuit Court of St.
Clair County, Illinois.
The Plaintiffs ask the Court to award costs and fees under 28
U.S.C. Section 1447(c) because Apple's removal was baseless and
improper. Alternatively, they seek sanctions under Rule 11(c) since
there is no good-faith explanation for the Defendant's removal of a
previously remanded claim.
While sanctions are not warranted in this instance, the Court will
award costs under Section 1447(c).
Regardless of whether the law around section 15(c) is unsettled,
Judge Rosenstengel holds the law relevant to Article III standing
is not. Removing a case to federal court based on a state court
order that finds the Plaintiffs sufficiently alleged a statutory
violation but never mentions any individual harm to the Plaintiffs
is not objectively reasonable. For this reason, the Court awards
the Plaintiffs their costs and fees under 28 U.S.C. Section 1447.
For the reasons set forth, the Court grants Apple's Motion for
Leave to File Under Seal, the Plaintiffs' Motion to Seal Documents,
and Apple's Motion to Seal its Motion for Leave to Supplement the
Record, Instanter.
The Court denies Apple's Motion for Leave to Supplement the Record,
Instanter. Finally, the Court grants the Plaintiffs' Motion to
Remand, remands this action to the Circuit Court of St. Clair
County, Illinois, and awards the Plaintiffs their costs and fees
under 28 U.S.C. Section 1447.
A full-text copy of the Court's Memorandum and Order dated May 8,
2023, is available at https://tinyurl.com/msw4rfbk from
Leagle.com.
BATH & BODY: Court Narrows Claims in Perez Suit
-----------------------------------------------
In the class action lawsuit captioned as CARMEN PEREZ, et al., v.
BATH & BODY WORKS, LLC, et al., Case No. 5:21-cv-05606-BLF (N.D.
Cal.), the Hon. Judge Beth Labson Freeman entered an order denying
in part and granting in part without leave to amend motion to
dismiss second amended complaint as follows:
1. The Defendants' motion to dismiss the claim for injunctive
relief is denied.
2. The Defendants' motion to dismiss all claims as to the
Mineral
Body Polish is granted without leave to amend.
BBW also argues that injunctive relief is improper because there is
nothing to enjoin. BBW argues that the Plaintiff has no evidentiary
support that it continues to sell the Products.
BBW claims that the Plaintiff's allegation that sales are
continuing is "conclusory," and the Court should dismiss the
request for injunctive relief on this basis.
The Plaintiff responds that whether the claim is moot is a factual
question that cannot be decided on a motion to dismiss.
The Court agrees with the Plaintiff. At the motion to dismiss, the
Court must accept as true the allegations in the pleadings. Perez
alleges that the 1,000x claim was made "throughout the class period
and continuing to the present."
The Court finds that Perez's allegations are insufficient to
support the inference that the Body Polish is substantially similar
to the Hydrating Body Cream.
As alleged in the Second Amended Complaint, the Defendants market
products including skin creams, lotions, scrubs, shampoos,
conditioners, scents, and body wash to consumers who visit BBW's
stores or website.
Among those products is a line called "WATER" / "HYDRATING" which
includes several products that use hyaluronic acid:
-- BBW Hyaluronic Acid Hydrating Body Cream (in varying scents);
-- BBW Hyaluronic Acid Hydrating Hand Cream (in varying scents);
-- BBW Hyaluronic Acid Hydrating Body Wash;
-- BBW Hyaluronic Acid Hydrating Body Gel Lotion; and
-- BBW Hyaluronic Acid Mineral Body Polish (in varying scents).
Perez alleges that BBW makes false claims on the Products "to trick
consumers into believing that the [Products] contain unique
moisturizing properties. "
Bath & Body is an American retail store chain that sells soaps,
lotions, fragrances, and candles.
A copy of the Court's order dated May 15, 2023 is available from
PacerMonitor.com at https://bit.ly/3oCUDvX at no extra charge.[CC]
BLUE DIAMOND: Court Junks Cummings Class Action
-----------------------------------------------
In the class action lawsuit captioned as WILLIE CUMMINGS,
individually and on behalf of all others similarly situated, v.
BLUE DIAMOND GROWERS, Case No. 1:22-cv-00141-AW-HTC (N.D. Fla.),
the Hon. Judge Allen Winsor entered an order granting the Blue
Diamond's motion to dismiss Cummings Complaint.
Although it appears unlikely that Cummings can cure the
deficiencies with additional allegations, he will have leave to
try. Cummings may file an amended complaint within fourteen days.
If he does so, Blue Diamond will then have fourteen days to
respond. If he does not, final judgment will enter and the
class-certification motion will be denied as moot.
Moreover, even if Cummings plausibly alleged a misstatement, I
would still dismiss. First, as to both claims, Cummings had to
plausibly allege Blue Diamond intended to induce reliance on a
false representation. It is not enough to allege only that it had
knowledge of falsity.
Blue Diamond moves to dismiss Cummings's unjust enrichment claim
arguing that (1) it relies on the same facts as Cummings’s legal
claims and (2) Blue Diamond retained no benefit from Cummings
because Cummings got almonds fit for consumption.
Blue Diamond sells smoke-flavored almonds that are not actually
smoked. They come in a package that says "Smokehouse (TM)," which
the Plaintiff Willie Cummings contends is misleading.
The principal issue in this case is whether Blue Diamond deceives
consumers into thinking the almonds are actually smoked in an
actual smokehouse. Cummings bought some "Smokehouse (TM)" almonds
at a Gainesville store.
That disappointment led to this putative class action, in which
Cummings seeks damages and injunctive relief. He alleges
(1) a violation of the Florida Deceptive and Unfair Trade
Practices Act (FDUTPA);
(2) violations of other state consumer-fraud laws;
(3) breach of express and implied warranties, along with a
Magnuson-Moss Warranty Act claim;
(4) negligent misrepresentation;
(5) fraud; and
(6) unjust enrichment.
Blue Diamond now moves to dismiss for lack of jurisdiction and
alternatively for failure to state a claim. Having carefully
considered the parties' papers, I have determined that Cummings has
alleged sufficient facts to show standing (except to the extent he
seeks prospective relief) but that he has not stated a claim for
relief.
Blue Diamond is an agricultural cooperative and marketing
organization that specializes in California almonds.
A copy of the Court's order dated May 15, 2023 is available from
PacerMonitor.com at https://bit.ly/45srFzD at no extra charge.[CC]
BLUEGREEN VACATIONS: Laskey Suit Seeks to Modify Class Definition
-----------------------------------------------------------------
In the class action lawsuit captioned as SHAUNDRE LASKEY and
KIMBERLY LASKEY, v. BLUEGREEN VACATIONS UNLIMITED and RESORT TITLE
AGENCY, INC., Case No. 6:22-cv-03194-MDH (W.D. Mo.), the Plaintiffs
ask the Court to enter an order granting their motion to modify
class definition or class certification.
1. That Class Counts I, II and III of the Plaintiffs' Third
Amended
Petition shall be maintained as a class action. The
Plaintiffs'
class shall be modified or defined as:
"All persons or entities who (a) purchased a Missouri
timeshare
interest from the Defendants from September 21, 2013, to
April
17, 2017, (b) were charged Closing Costs in connection with
that
transaction, and (c) did not rescind or cancel their
timeshare
purchase contract.
2. That the Plaintiffs Shaundre and Kimberly Laskey be appointed
class representatives.
3. That attorneys Mark Parrish and Raymond Salva, Jr. of the
Boyd
Kenter Thomas & Parrish, LLC law firm be appointed as lead
class
counsel.
Bluegreen Vacations is a US-based vacation ownership company that
markets and sells vacation ownership interests (VOIs).
A copy of the Plaintiffs' motion dated May 15, 2023 is available
from PacerMonitor.com at https://bit.ly/42elJri at no extra
charge.[CC]
The Plaintiffs are represented by:
Mark E. Parrish, Esq.
Joshua A. Sanders, Esq.
Raymond Salva, Jr., Esq.
Erica Collins, Esq.
BOYD KENTER THOMAS & PARRISH, LLC
221 West Lexington Avenue, Suite 200
Independence, MO. 64051
Telephone: (816) 471-4511
Facsimile: (816) 471-8450
E-mail: mparrish@bktplaw.com
jsanders@bktplaw.com
rsalva@bktplaw.com
ecollins@bktplaw.com
BLUEGREEN VACATIONS: Leskey Allowed to File Suggestions Under Seal
------------------------------------------------------------------
In the class action lawsuit captioned as Laskey, et al., v.
Bluegreen Vacations Unlimited, Inc., et al., Case No. 6:22-cv-03194
(W.D. Mo.), the Hon. Judge M. Douglas Harpool entered an order
granting unopposed motion for leave to file under seal the
Plaintiffs' suggestions in support of Plaintiffs' motion for class
certification and exhibits in support.
The nature of suit states Torts -- Personal Property -- Other
Fraud.
Bluegreen Vacations is a leisure, travel, and tourism company.
A copy of the Court's order dated May 16, 2023 is available from
PacerMonitor.com at at no extra charge.[CC]
BLUEGREEN VACATIONS: Seeks to Exclude Roth's Class Cert Opinions
----------------------------------------------------------------
In the class action lawsuit captioned as SHAUNDRE and KIMBERLY
LASKEY, et al., v. BLUEGREEN VACATIONS UNLIMITED, INC., et al.,
Case No. 6:22-cv-03194-MDH (W.D. Mo.), the Defendants ask the Court
to enter an order granting their motion to strike and exclude the
proposed expert opinions of Brad Roth on class certification and at
summary judgment.
Bluegreen is a leisure, travel, and tourism company.
A copy of the Defendants' motion dated May 15, 2023 is available
from PacerMonitor.com at https://bit.ly/45uRkaH at no extra
charge.[CC]
The Defendants are represented by:
Michael L. Jente, Esq.
600 Washington Avenue, Suite 2500
St. Louis, MO 63101
Telephone: (314) 444-7600
Facsimile: (314) 241-6056
E-mail: mjente@lewisrice.com
- and -
Grace L. Mead, Esq.
Andrea N. Nathan, Esq.
Veronica L. De Zayas, Esq.
STEARNS WEAVER MILLER WEISSLER
ALHADEFF & SITTERSON, P.A.
Museum Tower, Suite 2200
150 West Flagler Street
Miami, FL 33130
Telephone: (305) 789-3200
Facsimile: (305) 789-3395
E-mail: gmead@stearnsweaver.com
anathan@stearnsweaver.com
vdezayas@stearnsweaver.com
BNSF RAILWAY: Court Directs Filing of Discovery Plan in Ward Suit
-----------------------------------------------------------------
In the class action lawsuit captioned as Ward v. BNSF Railway
Company, Case No. 1:23-cv-01007-SLD-JEH (C.D. Ill.), the Hon. Judge
Jonathan E. Hawley entered a standing order as follows:
-- Rule 16 scheduling conference
The Court will set a Rule 16 scheduling conference
approximately
30 days after the answer or other responsive pleading is
filed.
The conference will generally be conducted by telephone.
-- Discovery plan
The discovery plan shall be filed with the Court at least
three
calendar days before the Rule 16 scheduling conference.
-- Waiver of the Rule 16 scheduling conference
If the parties agree on all matters contained in the
discovery
plan, then the parties may waive the Rule 16 scheduling
conference. To do so, the parties shall indicate in the
discovery that the parties agree upon all maters contained
within the discovery plan, and they request that the Rule 16
scheduling conference be cancelled.
-- Failure of counsel to attend a scheduled telephone hearing
For the convenience of counsel, the Court conducts most
hearings
by telephone when possible. Counsel's failure to appear for a
telephone hearing will be treated as a failure of counsel to
appear for an in-person hearing.
-- Discovery disputes brought to the Court's attention after the
discovery deadline has already passed
The parties may not raise a discovery dispute with the Court
after the relevant discovery deadline has passed; all
discovery
disputes must be brought to the Court's attention before the
relevant discovery deadline passes. Any discovery disputes
raised with the Court after the expiration of the relevant
discovery deadline shall be deemed waived by the Court, even
if
the parties agreed to conduct discovery after the relevant
discovery deadline has passed. If the parties agree to
conduct
discovery after the expiration of a deadline set by the
Court,
they must still file a motion requesting that the Court move
that deadline as agreed by the parties in order to avoid any
subsequent discovery disputes being deemed waived.
-- Settlement conferences and mediation
The parties are encouraged to seek a settlement conference or
mediation with a magistrate judge. Where parties request a
settlement conference or mediation in a case referred to
Judge
Hawley, Judge Hawley will conduct said conference or
mediation.
BNSF operates railroad networks in North America.
A copy of the Court's order dated May 12, 2023, is available from
PacerMonitor.com at https://bit.ly/43lvdBW at no extra charge.[CC]
BOYKIN FARMS: Lopez Seeks Conditional Status of FLSA Action
-----------------------------------------------------------
In the class action lawsuit captioned as CRISTOBAL LOPEZ LOPEZ and
GILBERTO FLORES LOZANO, on behalf of themselves and all other
similarly situated persons, v. BOYKIN FARMS, INC., RHODES FARMING,
LLC, WILLIE C. BOYKIN, III, MATTHEW Z. RHODES, TONY C. LEE, d/b/a
LEE AND SONS FARMS, CAMERON LEE, d/b/a LEE AND SONS FARMS, and
CLINT LEE, d/b/a LEE AND SONS FARMS, Case No. 5:22-cv-00491-BO-RN
(E.D.N.C.), the Plaintiffs Cristobal Lopez Lopez and Gilberto
Flores Lozano move the Court for an order conditionally certifying
a Fair Labor Standards Act (FLSA) collective actions pursuant to 29
U.S.C. section 216(b):
FLSA Reimbursement Collective Action
"Persons who held H-2A visas and worked for one or more of the
Defendants in any pay period falling within the three
chronological
years immediately preceding the date on which this action was
filed
and continuing through the date of final judgment, and who were
not
reimbursed for all of their H-2A related expenses (travel, visa,
hotel, meals, and/or border crossing costs) during their first
workweek resulting in average hourly pay below the minimum wage,
and who timely file a written consent to be a party pursuant to
29
U.S.C. section 216(b);" and
FLSA Underpayment Collective Action
"Persons who held H-2A visas and worked for one or more of the
Defendants in any pay period falling within the three
chronological
years immediately preceding the date on which this action was
filed
and continuing thereafter through the date of final judgment,
and were not compensated at the minimum wage rate during some
workweeks because they were paid an inadequate piece rate, were
not
paid for travel time between fields, and/or were required to
kick
back part of their wages for illegal meal charges and who timely
file a written consent to be a party pursuant to 29 U.S.C.
section
216(b)."
In addition, the Plaintiffs ask the Court to:
-- approve the distribution of the attached Notice and Consent to
Join forms by moving the Plaintiffs after the Defendants
provide
contact information for the persons whom the Court
conditionally
certifies as members of the collective action under 29 U.S.C.
section 216(b), by U.S. mail, and authorizing distribution by
mail, electronically, and through social media. See Exhibits 1
and 2;
-- order the Defendants to provide within two weeks after entry
of
the Court's Order an Excel document or other computer readable
file containing the a) full names, b) date(s) of employment,
c)
employer ID, d) passport number, e) U.S. and Mexico addresses,
f)
cell and WhatsApp numbers (U.S. and Mexico), and g) date of
birth
of all putative collective action members; and
-- order the Defendants to post the notice attached as Exhibit 1
at
all employer-provided housing for H-2A workers under the
ownership or control of any of the Defendants, and ordering
the
Defendants to provide the notice to current H-2A employees
with
their paychecks within two weeks after entry of the Court’s
Order.
Boykin Farms is a family owned and operated south Texas based pecan
farm focused on using sustainable farming practice.
A copy of the Plaintiffs' motion dated May 12, 2023, is available
from PacerMonitor.com at https://bit.ly/3q8Vg0Y at no extra
charge.[CC]
The Plaintiffs are represented by:
Carol L. Brooke, Esq.
Clermont F. Ripley, Esq.
NORTH CAROLINA JUSTICE CENTER
Raleigh, NC 27611
Telephone: (919)856-2144
Facsimile: (919)856-2175
E-mail: carol@ncjustice.org
clermont@ncjustice.org
- and -
Jonathan Wall, Esq.
HIGGINS BENJAMIN, PLLC
301 n. Elm St., Suite 800
Greensboro, NC 27401
Telephone: (336) 273-1600
Facsimile: (336) 274-4650 fax
E-mail: jwall@greensborolaw.com
BRITAX CHILD: Sur-Reply to Plaintiffs' Class Cert. Submitted
------------------------------------------------------------
In the class action lawsuit captioned as Tiffany Coleman, Keli
Swann, and Heather Brooke, individually and on behalf of all others
similarly situated, v. Britax Child Safety, Inc., Case No.
0:21-cv-00721-SAL (D.S.C.), Britax submits a sur-reply to identify
the Plaintiffs' new positions and briefly respond, including to
highlight how those changes still do not warrant certifying a class
and are furthermore incompatible with the class that Plaintiffs
seek to certify.
1. Claims -- "The 'side-impact tested' claim does not apply to
the Parkway booster seat."
Britax's Response:
The Plaintiffs have withdrawn their "side impact tested"
claim as to the Parkway, calling into question the basis
for
their remaining "side impact protection" claim.
2. Class Period – "The class of consumers who purchased
Parkway
booster seats would run from 2009 through 2018, for the
Highpoint and Skyline from 2018 through March 12, 2021, and
for
the Midpoint from 2018 through 2020."
Britax's Response:
In their motion, the Plaintiffs sought to certify a class
running "between 2008 and present" for all Booster Seats.
By ending the Midpoint and Parkway class periods to
"parallel
the sales dates for the booster seats" (i.e., whensales
ceased as the seats were retired), the Plaintiffs have no
basis to claim future harm for those two models.
By ending the Highpoint and Skyline class periods in March
2021, Plaintiffs implicitly concede that there is no basis
for either a "side impact tested" or "side impact
protection"
claim past that date, undermining any claim of future
harm.
3. Injunctive Relief -- For the first time, Plaintiffs seek
"corrective notice" as injunctive relief for their proposed
Rule
23(b)(2) class to notify consumers that "(1) from 2018
through
2021, when Britax claimed that it had side-impact tested its
Highpoint, Midpoint, and Skyline booster seats, that
statement
was false; and (2) when Britax stated that its booster seats
provide side-impact protection, it only meant that it was
providing more side-impact protection than if a child was
just
using a seat belt and not in a car seat or booster seat at
all."
Britax's Response:
The Plaintiffs effectively concede the insufficiency of
their
injunctive relief claims by attempting to seek a new
remedy
that is not included in their motion for class
certification,
or even their operative Complaint. They may not do so. See
S.
Walk at Broadlands Homeowner's Ass'n, Inc. v. OpenBand at
Broadlands, LLC, 713 F.3d 175, 184 (4th Cir. 2013).
Part (1) of this new corrective notice serves no purpose
for
three reasons:
(i) it is undisputed the Later Seats were side impact
tested in 2021 and those test results show the
Later
Seats satisfied the test’s injury assessment
criteria;
(ii) Plaintiffs allege no safety or other problem with
the
Booster Seats that would be remedied by the
proposed
notice; and
(iii) Plaintiffs have presented no evidence to suggest
that
children using the seats sold from 2018 to 2021
have
not outgrown them.
Part (2) of the proposed corrective notice misrepresents
the
record and ignores Britax's testing, including the test
results from the 2009 Parkway testing, the pendulum
testing,
and 2021 R129 testing of the Later Seats, which show that
the
Booster Seats satisfied the tests' injury assessment
criteria.
In addition, it ignores expert testimony that "there are
no
'side impact protection' comparative claims" on the
Booster
Seats.
Thus, corrective notice fails to get Plaintiffs to a Rule
23(b)(2) injunctive relief class.
Britax offers car seats, strollers and travel systems that give
families the freedom and confidence to keep moving.
A copy of the Defendant's motion dated May 15, 2023 is available
from PacerMonitor.com at https://bit.ly/3MQTeLD at no extra
charge.[CC]
The Defendant is represented by:
Kevin A. Hall, Esq.
M. Todd Carroll, Esq.
Bryant S. Caldwell, Esq.
Mark P. Henriques, Esq.
WOMBLE BOND DICKINSON (US), LLP
1221 Main Street, Suite 1600
Columbia, SC 29201
Telephone: (803) 454-6504
E-mail: kevin.hall@wbd-us.com
todd.carroll@wbd-us.com
bryant.caldwell@wbd-us.com
mark.henriques@wbd-us.com
- and -
Purvi G. Patel, Esq.
Erin M. Bosman, Esq.
Erin P. Lupfer, Esq.
Zachary S. Newman, Esq.
MORRISON & FOERSTER LLP
707 Wilshire Boulevard, Suite 6000
Los Angeles, CA 90017-3543
Telephone: (213) 892-5200
Facsimile: (213) 892-5454
E-mail: PPatel@mofo.com
EBosman@mofo.com
ELupfer@mofo.com
ZNewman@mofo.com
BROADWAY ELECTRIC: Wins Bid to Compel Arbitration in API Suit
-------------------------------------------------------------
In the case, A.P.I. INC., Plaintiff v. BROADWAY ELECTRIC SERVICE
CORPORATION, Defendant, Civil Action No. 2:23-cv-552 (W.D. Pa.),
Judge William S. Stickman, IV, of the U.S. District Court for the
Western District of Pennsylvania:
a. denies API's Motion for Preliminary Injunction;
b. vacates the Temporary Restraining Order issued on May 4,
2023;
c. denies API's Motion to Enjoin the Arbitration Initiated by
Broadway Electric Service Corp ("BESCO"); and
d. grants BESCO's Motion to Compel Arbitration.
API asks the Court to enter a preliminary injunction enjoining the
arbitration initiated by BESCO. The parties' contract contains an
arbitration clause, but API argues that BESCO waived its right to
invoke the benefit of that clause by filing a third-party complaint
against API in the case of Justin Beauregard v. BESCO, Civil Action
No. 2:21-cv-01600.
In late 2018, API and BESCO entered into a Subcontract (effective
Nov. 9, 2018) under which BESCO agreed to provide electrical
services and materials in support of a massive construction project
for Shell Chemical Appalachia LLC in Monaca Borough, Beaver County,
Pennsylvania. The Subcontract contains a number of indemnification
provisions and also states that "Subcontractor will be bound by any
dispute, mediation, or arbitration provisions in the General
Contract in the same manner and method as Contractor is bound to
Owner. Any action, suit, or arbitration under this Agreement will
be brought and maintained in the county where the Project is
located." The Subcontract "shall be governed by the laws of the
State of Pennsylvania."
On Oct. 21, 2021, former BESCO employee Justin Beauregard filed a
class-action complaint against BESCO in the Beaver County Court of
Common Pleas. He alleged that BESCO employed individuals to perform
work at the Monaca Facility and failed to pay these individuals all
regular and overtime wages due to them in violation of the
Pennsylvania Minimum Wage Act of 1968 ("PMWA"), 43 P.S. Section
333.101 to 333.115. (
BESCO moved Beauregard's complaint to this Court on Nov. 5, 2021,
and then on Dec. 27, 2021, it sought to dismiss the complaint. The
Court denied BESCO's motion. On Aug. 23, 2022, the Court ordered
the parties to attend a mediation session pursuant to L.Civ.R.
16.2. Discovery in Beauregard commenced on Aug. 23, 2022 and was
set to conclude on Jan. 20, 2023.
On Oct. 17, 2022, with prior Court approval, BESCO filed a
third-party complaint against API in the Beauregard case. It
asserted claims for indemnity (Count I) and contribution (Count II)
against API, both seeking in pertinent part: "Should any liability
be found on the part of BESCO to Plaintiff or any other party,
BESCO demands that Third Party Defendant API be held liable over to
BESCO by way of contribution and/or indemnity, and/or jointly and
severally liable with BESCO, on all claims alleged by Plaintiff and
any other party, together with costs of suit, fees, and such other
relief as the Court deems just proper and equitable."
API was brought into the case too late to participate in the formal
discovery process between the Beauregard plaintiffs and BESCO.
BESCO and API later acknowledged that API had not participated in
the discovery process. The extent of API's involvement in discovery
was limited to requesting from BESCO copies of the discovery
exchanged between it and the Beauregard plaintiffs.
The parties -- Beauregard, BESCO and API -- attended an
unsuccessful mediation session on Dec. 20, 2022. Since the parties
agreed to a second mediation session, the Court stayed various case
management deadlines.
On Jan. 16, 2023, API's counsel sent a letter to BESCO's counsel
invoking Federal Rule of Civil Procedure 11 in Beauregard. API
demanded that BESCO withdraw its third-party complaint by Jan. 20,
2023, and it sought complete indemnification from BESCO as provided
by the parties' Subcontract. On Feb. 1, 2023, BESCO responded and
declined to withdraw its complaint in Beauregard.
The parties -- Beauregard, BESCO and API -- attended another
unsuccessful mediation session on Feb. 3, 2023. On Feb. 10, 2023,
Beauregard, BESCO, and API's respective counsel attended a third
mediation session. The mediator excused API's counsel early in the
session, while Beauregard and BESCO continued to negotiate.
Beauregard and BESCO reached an agreement in principle ($425,000)
to settle Beauregard's claims on a class wide basis.
On Feb. 10, 2023, the parties agreed that API would respond to
BESCO's third-party complaint on Feb. 17, 2023. On Feb. 16, 2023,
API moved to dismiss BESCO's third-party complaint pursuant to Fed.
R. Civ. P. 12(b)(6) for failure to state a claim upon which relief
can be granted. BESCO was ordered to file a response by March 10,
2023. That same day, API served BESCO's counsel with a motion for
sanctions pursuant to Federal Rule of Civil Procedure 11. On March
8, 2023, BESCO filed a voluntary dismissal of its third-party
complaint pursuant to Federal Rule of Civil Procedure 41. The
Court, on March 9, 2023, dismissed BESCO's claims against API
without prejudice in Beauregard.
BESCO, on March 21, 2023, filed a demand for arbitration against
API at American Arbitration ("AAA") Case Number 01-23-0001-1604.
BESCO claims that it never asserted a breach of contract claim
against API in the Class Action; rather, the Third-Party Complaint
contained solely indemnity/contribution claims (as was permitted
under the Subcontract) based on the Class's claim for violation of
the PMWA.
In this lawsuit, API is seeking to recover attorney's fees and
costs incurred because of BESCO's alleged breach of contract. It
requests a judgment pursuant to 28 U.S.C. Section 2201(a) declaring
that (1) the parties' Subcontract is valid and enforceable, (2)
BESCO has waived its purported right to arbitration by acting
inconsistently with that right throughout the Beauregard
litigation, (3) BESCO has waived its purported right to arbitration
by breaching the mandatory Dispute Resolution Protocol to which the
parties agreed in their Subcontract, and (4) neither the American
Arbitration Association nor any other arbitral body has any
jurisdiction over the parties' dispute.
API wants BESCO's counsel sanctioned for unreasonably and
vexatiously multiplying the proceedings in this matter and awarding
API all excess costs, expenses, and attorney's fees incurred
because of the counsel's misconduct. Additionally, BESCO seeks
compensatory and consequential damages because of its alleged
breaches of the parties' Subcontract as well as attorney's fees and
litigation costs for the Beauregard litigation, the AAA proceedings
and for this action.
On May 1, 2023, API filed a Motion for a Temporary Restraining
Order ("TRO") and Preliminary Injunction ("motion"). It seeks
preliminary injunctive relief against BESCO to end its pursuit of
arbitration proceedings at AAA Case No. 01-23-0001-1604. The
gravamen of the motion is that BESCO waived its right to invoke the
arbitration agreement to compel arbitration by its conduct in the
Beauregard litigation.
Despite the pendency of API's motion, the AAA continued to move
forward with the arbitration. The AAA instructed API and BESCO that
it will proceed with the administration of the arbitration absent a
court order or party agreement otherwise and instructed the parties
to advise the AAA immediately should such an order be entered.
Consequently, on May 4, 2023, the Court issued a TRO to preserve
the status quo pending decision on the motion.
Judge Stickman concludes that BESCO's conduct in the Beauregard
litigation did not waive its right to invoke arbitration under the
terms of the parties' arbitration agreement. Rather, BESCO's act of
filing a third-party complaint was expressly permitted by that
agreement. A contextual examination of the language of the
arbitration clause and BESCO's conduct in the Beauregard litigation
leads Judge Stickman to conclude that BESCO did not repudiate or
otherwise abandon its right to arbitrate disputes with API. As a
result, API cannot demonstrate reasonable likelihood of success on
the merits of its claim and preliminary injunctive relief is not
appropriate.
In this case, after balancing all the required factors, Judge
Stickman concludes that a preliminary injunction is not appropriate
because BESCO has not waived its right to submit its dispute
against API to arbitration. API's Motion for Preliminary Injunction
is denied, and the Temporary Restraining Order issued on May 4,
2023 is vacated. The substantive holding underlying the Court's
decision on the Motion for Preliminary Injunction addresses the
same issue that controls the disposition of API's Motion to Enjoin
the Arbitration Initiated by BESCO and BESCO's Motion to Dismiss
and Compel Arbitration. As such, based on the reasons set forth in
his Opinion, Judge Stickman denies API's motion and grants BESCO's
to the extent that it asks the Court to compel arbitration. The
action is stayed and administratively closed pending the resolution
of BESCO's claims in the arbitration.
A full-text copy of the Court's May 16, 2023 Opinion is available
at https://rb.gy/v4s52 from Leagle.com.
CAPITAL ONE: McNeil Seeks Certification of Rule 23 Classes
----------------------------------------------------------
In the class action lawsuit captioned as BOB MCNEIL, individually
and on behalf of all others similarly situated, v. CAPITAL ONE
BANK, N.A., Case No. 1:19-cv-00473-NRM-TAM (E.D.N.Y.), the
Plaintiff asks the Court to enter an order certifying the Classes
and directing that notice be sent to the class members.
The case concerns the assessment of charged more than one
non-sufficient funds and/or overdraft fee on the same item, a
practice that has recently been condemned as unfair and deceptive
by the FDIC and New York Department of Financial Services.
The Plaintiff Bob McNeil moves for certification of the following
Classes under Fed. R. Civ. P. 23(a) and (b)(3):
-- Nationwide Class
"All Capital One checking accountholders in the United States
who, during the applicable statute of limitations through
January 13, 2022, were charged more than one NSF Fee and/or
an
OD Fee after one or more NSF Fees on an item;"
-- New York Subclass:
"All Capital One checking accountholders whose accounts are
governed by New York law and who, during the applicable
statute
of limitations through January 13, 2022, were charged more
than
one NSF Fee and/or an OD Fee after one or more NSF Fees on an
item."
Capital One offers checking accounts, credit and debit cards,
loans, insurance, payment protection, phone banking, bill pay,
lending, and online banking services.
A copy of the Plaintiff's motion dated May 12, 2023, is available
from PacerMonitor.com at https://bit.ly/420YuRh at no extra
charge.[CC]
The Plaintiff is represented by:
Jonathan M. Streisfeld, Esq.
Jeffrey M. Ostrow, Esq.
KOPELOWITZ OSTROW P.A.
One West Las Olas Blvd., Suite 500
Fort Lauderdale, FL 33301
Telephone: (954) 525-4100
E-mail: streisfeld@kolawyers.com
ostrow@kolawyers.com
- and -
Sophia G. Gold, Esq.
Jeffrey D. Kaliel, Esq.
KALIELGOLD PLLC
950 Gilman Street, Suite 200
Berkeley, CA 94710
Telephone: (202) 350-4783
E-mail: sgold@kalielgold.com
jkaliel@kalielpllc.com
- and -
Andrea R. Gold, Esq.
Hassan Zavareei, Esq.
Shana Khader, Esq.
Lauren Kuhlik, Esq.
TYCKO & ZAVAREEI LLP
2000 Pennsylvania Avenue NW, Suite 1010
Washington, D.C. 20036
Telephone: (202) 973-0900
E-mail: agold@tzlegal.com
hzavareei@tzlegal.com
skhader@tzlegal.com
lkuhlik@tzlegal.com
- and -
James Pizzirusso, Esq.
Steven M. Nathan, Esq.
Scott Allan Martin, Esq.
HAUSFELD LLP
888 16th Street N.W., Suite 300
Washington, DC 20006
Telephone: (202) 540-7200
E-mail: jpizzirusso@hausfeld.com
snathan@hausfeld.com
smartin@hausfeld.com
CAREFIRST INC: Attias Suit Seeks Class Certification
----------------------------------------------------
In the class action lawsuit captioned as CHANTAL ATTIAS AND ANDREAS
KOTZUR, Individually and on behalf of all others similarly
situated, et al., v. CAREFIRST, INC.; GROUP HOSPITALIZATION
SERVICES, INC.; CAREFIRST OF MARYLAND, INC.; and CAREFIRST BLUE
CHOICE, Case No. 1:15-cv-00882-CRC (D.D.C.), the Plaintiffs ask the
Court to enter an order certifying the case to proceed as a class
action on behalf of the following Proposed Classes:
The Contract Class:
"All persons who reside in the District of Columbia, the State
of
Maryland and the Commonwealth of Virginia and have purchased
and/or
possessed health insurance from Carefirst, Inc., Group
Hospitalization and Medical Services, Inc., Carefirst of
Maryland,
Inc., and/or Carefirst BlueChoice and whose personally
identifiable
information, personal health information, sensitive personal
information, and/or financial information was breached as a
result
of the data breach announced on or about May 20, 2015;"
The Maryland Consumer Class:
"All persons who reside in the State of Maryland, and have
purchased and/or possessed health insurance from Carefirst,
Inc.,
Group Hospitalization and Medical Services, Inc., Carefirst of
Maryland, Inc., and/or Carefirst BlueChoice and whose personally
identifiable information, personal health information, sensitive
personal information, and/or financial information was breached
as
a result of the data breach announced on or about May 20, 2015;"
and
The Virginia Consumer Class:
"All persons who reside in the Commonwealth of Virginia, and
have
purchased and/or possessed health insurance from Carefirst,
Inc.,
Group Hospitalization and Medical Services, Inc., Carefirst of
Maryland, Inc., and/or Carefirst BlueChoice and whose personally
identifiable information, personal health information, sensitive
personal information, and/or financial information was breached
as
a result of the data breach announced on or about May 20, 2015.
Excluded from the Class are the Defendants' officers, directors,
agents, employees and members of their immediate families; and the
judicial officers to whom this case is assigned, their staff, and
the members of their immediate families.
On March 28, 2023, the Court filed its Memorandum Opinion and Order
in which the Plaintiffs' motion for class certification was denied
on the basis that the Court "could not conclude that the Plaintiffs
have satisfied Rule 23(b)(3)'s predominance requirement at this
juncture."
On May 10, 2023, the Plaintiffs filed a Supplemental Memorandum of
Law in Support of the Plaintiffs' Motion for Class Certification.
In an abundance of caution, the Plaintiffs file this Renewed Motion
for Class Certification with the same Supplemental Memorandum of
Law in Support of the Plaintiffs' Motion for Class Certification.
A copy of the Plaintiffs' motion dated May 12, 2023, is available
from PacerMonitor.com at https://bit.ly/430pim1 at no extra
charge.[CC]
The Plaintiffs are represented by:
Jonathan B. Nace, Esq.
NIDEL & NACE, PLLC
One Church Street, Suite 802
Rockville, MD 20850
Telephone: (202) 780-5153
Facsimile: (301) 963-8135
E-mail: jon@nidellaw.com
- and -
Troy N. Giatras Esq.
Matthew W. Stonestreet, Esq.
THE GIATRAS LAW FIRM, PLLC
118 Capitol Street, Suite 400
Charleston, WV. 25301
Telephone: (304) 343-2900
Facsimile: (304) 343-2942
E-mail: troy@thewvlawfirm.com
matt@thewvlawfirm.com
- and -
Christopher T. Nace, Esq.
PAULSON & NACE, PLLC
1025 Thomas Jefferson Street, NW, Suite 810
Washington, DC 20007
Telephone: (202) 463-1999
Facsimile: (202) 223-6824
E-mail: ctnace@paulsonandnace.com
CAVALRY PORTFOLIO: Must Oppose Santiago Class Cert Bid by June 5
----------------------------------------------------------------
In the class action lawsuit captioned as SANTIAGO v. CAVALRY
PORTFOLIO SERVICES, LLC, et al, Case No. 2:15-cv-08332 (D.N.J.),
Hon. Judge Michael A. Hammer entered an order on Defendant's May
15, 2023 letter requesting an extension of the deadline to oppose
the motion for class certification.
-- The Defendant may file any such opposition by June 5, 2023.
-- The Plaintiff shall file any reply brief by June 23, 2023.
-- No further extensions of these deadlines will be granted.
The suit alleges violation of the Fair Debt Collection Practices
Act.
Cavalry is a debt collection agency.[CC]
CENGAGE LEARNING: Seeks Leave to File Presentation Under Seal
-------------------------------------------------------------
In the class action lawsuit captioned as Bernstein, v. Cengage
Learning, Inc., Case No. 1:19-cv-07541-ALC-SLC (S.D.N.Y.), the
Defendant seeks leave to file under seal portions of its
Presentation to the Court at the May 11, 2023, Hearing on the
Plaintiffs' motion for class certification.
The presentation referenced and/or contained information that the
Court has previously sealed, and/or that the parties have
designated as "Confidential" or "Attorney's Eyes Only. " Cengage
will file an unredacted version via ECF using the "Selected
Parties" viewing level.
These materials contain proprietary information regarding
Cengage’s business activities and publishing agreements,
including the terms of individually negotiated publishing
agreements and author-specific details regarding royalty payments.
Documents containing "trade secret or other confidential research,
development, or commercial information," such as the proprietary
information and contract terms at issue here, may be placed under
seal upon a showing of good cause.
Cengage provides learning solutions. The Company offers courses for
instructor and trainer development, and supplementary information.
A copy of the Defendant's motion dated May 15, 2023 is available
from PacerMonitor.com at https://bit.ly/3q1j2vw at no extra
charge.[CC]
The Defendant is represented by:
Christopher Chorba, Esq.
GIBSON, DUNN & CRUTCHER LLP
333 South Grand Avenue
Los Angeles, CA 90071
Telephone: (213) 229-7000
Facsimile: (213) 229-6396
E-mail: CChorba@gibsondunn.com
CHANNING PETRAK: Court Directs Filing of Discovery Plan in Kruger
-----------------------------------------------------------------
In the class action lawsuit captioned as Krueger, et al., v.
CHANNING PETRAK, et al., Case No. 1:22-cv-01016-JBM-JEH (C.D.
Ill.), the Hon. Judge Jonathan E. Hawley entered a standing order
as follows:
-- Rule 16 scheduling conference
The Court will set a Rule 16 scheduling conference
approximately
30 days after the answer or other responsive pleading is
filed.
The conference will generally be conducted by telephone.
-- Discovery plan
The discovery plan shall be filed with the Court at least
three
calendar days before the Rule 16 scheduling conference.
-- Waiver of the Rule 16 scheduling conference
If the parties agree on all matters contained in the
discovery
plan, then the parties may waive the Rule 16 scheduling
conference. To do so, the parties shall indicate in the
discovery that the parties agree upon all maters contained
within the discovery plan, and they request that the Rule 16
scheduling conference be cancelled.
-- Failure of counsel to attend a scheduled telephone hearing
For the convenience of counsel, the Court conducts most
hearings
by telephone when possible. Counsel's failure to appear for a
telephone hearing will be treated as a failure of counsel to
appear for an in-person hearing.
-- Discovery disputes brought to the Court's attention after the
discovery deadline has already passed
The parties may not raise a discovery dispute with the Court
after the relevant discovery deadline has passed; all
discovery
disputes must be brought to the Court's attention before the
relevant discovery deadline passes. Any discovery disputes
raised with the Court after the expiration of the relevant
discovery deadline shall be deemed waived by the Court, even
if
the parties agreed to conduct discovery after the relevant
discovery deadline has passed. If the parties agree to
conduct
discovery after the expiration of a deadline set by the
Court,
they must still file a motion requesting that the Court move
that deadline as agreed by the parties in order to avoid any
subsequent discovery disputes being deemed waived.
-- Settlement conferences and mediation
The parties are encouraged to seek a settlement conference or
mediation with a magistrate judge. Where parties request a
settlement conference or mediation in a case referred to
Judge
Hawley, Judge Hawley will conduct said conference or
mediation.
A copy of the Court's order dated May 12, 2023, is available from
PacerMonitor.com at https://bit.ly/42ZGfgt at no extra charge.[CC]
CHARTER FINANCIAL: Kotila Must Provide Specific Class Definition
----------------------------------------------------------------
In the class action lawsuit captioned as MATTHEW KOTILA, v. CHARTER
FINANCIAL PUBLISHING NETWORK, Inc., Case No. 1:22-cv-00704-HYJ-RSK
(W.D. Mich.), the Hon. Judge Hala Y. Jarbou entered an order that
the Plaintiff's motion to certify a class is granted on the
condition that he provides, and the Court approves, a more specific
class definition.
Charter Financial operates as a publishing company.
A copy of the Court's order dated May 12, 2023, is available from
PacerMonitor.com at https://bit.ly/3qbfSoY at no extra charge.[CC]
COOPERATIEVE RABOBANK: Laydon Seeks Certiorari Bid Filing Extension
-------------------------------------------------------------------
JEFFREY LAYDON, et al., filed a request with the Supreme Court of
United States for an extension of time within which to file a
petition for a writ of certiorari in the lawsuit styled Jeffrey
Laydon, individually and on behalf of all others similarly
situated, Plaintiff v. Cooperatieve Rabobank U.A., et al.,
Defendants, Case Nos. 20-3626, 20-3775.
The judgment for which review is sought is the decision of the
United States Court of Appeals for the Second Circuit in the case
captioned as Jeffrey Laydon, individually and on behalf of all
others similarly situated, Applicant vs. Cooperatieve Rabobank
U.A., et al., Petitioners, Case No. 22A1003.
As previously reported in the Class Action Reporter, Mr. Laydon
brought this putative class action against more than 20 banks and
brokers, alleging a conspiracy to manipulate two benchmark rates
known as Yen-LIBOR and Euroyen TIBOR. The names are short for "Yen
London Interbank Offered Rate" and "Euroyen Tokyo Interbank Offered
Rate," respectively. The Euroyen, also known as offshore yen,
refers to deposits denominated in Japanese Yen held outside of
Japan. Yen-LIBOR and Euroyen TIBOR are based on "the interest rates
at which banks offer to lend unsecured funds denominated in
Japanese Yen to other banks in the offshore wholesale money market
(or interbank market)."
The Plaintiff claimed that he was injured after purchasing and
trading a Euroyen TIBOR futures contract on a U.S.-based commodity
exchange because the value of that contract was based on a
distorted, artificial Euroyen TIBOR. He brought claims under the
Commodity Exchange Act ("CEA"), 7 U.S.C. Section 1, et seq., and
the Sherman Antitrust Act, 15 U.S.C. Section 1, et seq., and sought
leave to assert claims under the Racketeer Influenced and Corrupt
Organizations Act ("RICO").
The district court (Daniels, J.) dismissed the CEA and antitrust
claims and denied leave to add the RICO claims. The Plaintiff
appeals, arguing that the district court erred by holding that the
CEA claims were impermissibly extraterritorial, that he lacked
antitrust standing to assert a Sherman Act claim, and that he
failed to allege proximate causation for his proposed RICO claims.
The Court of Appeals affirms. The alleged conduct--i.e., that the
bank defendants presented fraudulent submissions to an organization
based in London that set a benchmark rate related to a foreign
currency--occurred almost entirely overseas. Indeed, the Plaintiff
fails to allege any significant acts that took place in the United
States.
The Plaintiff's CEA claims are based predominantly on foreign
conduct and are, thus, impermissibly extraterritorial, the Court of
Appeals holds.
Circuit Judge Michael H. Park, writing for the Panel, opines that
the district court also correctly concluded that the Plaintiff
lacked antitrust standing because he would not be an efficient
enforcer of the antitrust laws. Lastly, the Panel agrees with the
district court that the Plaintiff failed to allege proximate
causation for his RICO claims. The judgment of the district court
is, thus, affirmed.
Moreover, Judge Park opines that the district court properly
dismissed the Plaintiff's CEA and antitrust claims and denied leave
to add civil RICO claims. The Court of Appeals, thus, affirms the
judgment and orders of the district court, and dismisses the
cross-appeal. [BN]
Plaintiffs-Applicants Jeffrey Laydon, et al., on behalf of himself
and all others similarly situated, are represented by:
Kevin K. Russell, Esq.
Goldstein, Russell & Woofter LLC
1701 Pennsylvania Ave., NW, Suite 200
Washington, DC 20006
E-mail: krussell@goldsteinrussell.com
COOPERATIVA DE SEGUROS: Ortiz Suit Seeks Leave to File Reply Brief
------------------------------------------------------------------
In the class action lawsuit captioned as JOEL VEGA ORTIZ et al., v.
COOPERATIVA DE SEGUROS MULTIPLES DE PUERTO RICO et al., Case No.
3:19-cv-02056-SCC (D.P.R.), the Plaintiffs ask the Court to enter
an order granting them leave to file a reply brief supporting class
certification.
Cooperativa offers life insurance services.
A copy of the Plaintiffs' motion dated May 12, 2023, is available
from PacerMonitor.com at https://bit.ly/3MSUnm5 at no extra
charge.[CC]
The Plaintiffs are represented by:
Jason W. Burge, Esq.
Rebekka C. Veith, Esq.
Kaja S. Elmer, Esq.
FISHMAN HAYGOOD, LLP
201 St. Charles, 46th Floor
New Orleans, LA 70170
Telephone: (504) 585-5252
Facsimile: (504) 586-5250
E-mail: jburge@fishmanhaygood.com
rveith@fishmanhaygood.com
kelmer@fishmanhaygood.com
- and -
Harold D. Vicente Colon, Esq.
VICENTE & CUEBAS
Capital Center Sur Ph1-1201
239 Arterial Hostos
Hato Rey
Telephone: (787) 751-8000
Facsimile: (787) 756-5250
E-mail: hdvc@vclawpr.com
CREDIT SUISSE: Lead Plaintiffs Seek to Certify Two Classes
----------------------------------------------------------
In the class action lawsuit captioned as SET CAPITAL LLC, et al.,
Individually and on Behalf of All Others Similarly Situated, v.
CREDIT SUISSE GROUP AG, CREDIT SUISSE AG, CREDIT SUISSE
INTERNATIONAL, TIDJANE THIAM, DAVID R. MATHERS, JANUS HENDERSON
GROUP PLC, JANUS INDEX & CALCULATION SERVICES LLC, and JANUS
DISTRIBUTORS LLC d/b/a JANUS HENDERSON DISTRIBUTORS, Case No.
1:18-cv-02268-AT-SN (S.D.N.Y.), the Lead Plaintiffs and the Trust
request that the Court:
-- certify the Misrepresentation and Manipulation Classes as a
class action pursuant to Rules 23(a) and (b)(3) of the
Federal
Rules of Civil Procedure:
Misrepresentation Class
"all persons and entities that purchased or acquired the
VelocityShares Inverse VIX Short Term Exchange Traded Notes
("XIV Notes, " "Notes, " or "XIV") between January 29, 2018,
and
February 5, 2018, inclusive, and who were damaged thereby."
Manipulation Class
"all persons and entities that sold or redeemed XIV Notes on
or
after February 5, 2018, and who were damaged thereby"
-- certify Lead the Plaintiffs as representatives of the
proposed
Misrepresentation Class;
-- certify the Trust as the representative of the proposed
Manipulation Class;
-- appoint Cohen Milstein and Levi Korsinsky as Class Counsel
for
the proposed Misrepresentation Class; and
-- appoint Slarskey as Class Counsel for the proposed
Misrepresentation Class.
Credit Suisse is a global investment bank and financial services
firm.
A copy of the Plaintiff's motion dated May 15, 2023 is available
from PacerMonitor.com at https://bit.ly/3OAniwf at no extra
charge.[CC]
The Plaintiffs are represented by:
Michael B. Eisenkraft, Esq.
Laura H. Posner, Esq.
Steven J. Toll, Esq.
Brendan Schneiderman, Esq.
Carol V. Gilden, Esq.
COHEN MILSTEIN SELLERS & TOLL PLLC
88 Pine Street, 14th Floor
New York, NY 10005
Telephone: (212) 838-7797
Facsimile: (212) 838-7745
E-mail: meisenkraft@cohenmilstein.com
lposner@cohenmilstein.com
stoll@cohenmilstein.com
bschneiderman@cohenmilstein.com
cgilden@cohenmilstein.com
- and -
Eduard Korsinsky, Esq.
Nicholas I. Porritt, Esq.
Adam M. Apton, Esq.
Alexander A. Krot III, Esq.
LEVI & KORSINSKY, LLP
55 Broadway, 4th Floor, Suite #427
New York, NY 10006
Telephone: (212) 363-7500
Facsimile: (212) 363-7171
E-mail: ek@zlk.com
nporritt@zlk.com
aapton@zlk.com
akrot@zlk.com
- and -
Peretz Bronstein, Esq.
BRONSTEIN, GEWIRTZ & GROSSMAN, LLC
60 East 42nd Street, Suite 4600
New York, NY 10165
Telephone: (212) 697-6484
E-mail: peretz@bgandg.com
- and -
Adam Hollander, Esq.
SLARSKEY LLC
767 Third Avenue, 14th Floor
New York, NY 10017
Telephone: (212) 658-0661
E-mail: ahollander@slarskey.com
CUTERA INC: Bids for Lead Plaintiff Appointment Due July 24
-----------------------------------------------------------
Robbins Geller Rudman & Dowd LLP of Cision PR Newswire reports that
the law firm of Robbins Geller Rudman & Dowd LLP announces that
purchasers or acquirers of Cutera, Inc. (NASDAQ: CUTR) common stock
between February 17, 2021 and May 9, 2023, inclusive (the "Class
Period") have until July 24, 2023 to seek appointment as lead
plaintiff of the Cutera class action lawsuit. Captioned Erie County
Employees' Retirement System v. Cutera, Inc., No. 23-cv-02560 (N.D.
Cal.), the Cutera class action lawsuit charges Cutera and certain
of its top executives and directors with violations of the
Securities Exchange Act of 1934.
If you suffered substantial losses and wish to serve as lead
plaintiff of the Cutera class action lawsuit, please provide your
information here:
https://www.rgrdlaw.com/cases-cutera-inc-class-action-lawsuit-cutr.html
You can also contact attorney J.C. Sanchez of Robbins Geller by
calling 800/449-4900 or via e-mail at jsanchez@rgrdlaw.com.
CASE ALLEGATIONS: Cutera is a medical aesthetic device company that
provides equipment for beauty treatments.
The Cutera class action lawsuit alleges that defendants throughout
the Class Period made false and/or misleading statements and/or
failed to disclose that: (i) Cutera overstated the sustainability
of its revenue growth; (ii) there were significant conflicts among
members of Cutera's senior leadership and Board of Directors; and
(iii) there were several material weaknesses in Cutera's internal
control of financial reporting.
On January 9, 2023, Cutera revealed that Cutera had failed to meet
its revenue guidance for 2022. On this news, the price of Cutera
common stock declined more than 23%.
Then, on February 28, 2023, Cutera disclosed that Cutera would not
be able to timely file its annual financial report by the March 1,
2023 deadline. Cutera also disclosed that it identified material
weaknesses in its internal control over financial reporting related
to ineffective inventory count controls. On this news, the price of
Cutera common stock declined further.
Thereafter, on March 16, 2023, Cutera announced it would not meet
the extended deadline for filing its 2022 annual report. Cutera
also revealed that, in addition to the material weaknesses
previously identified, Cutera had identified material weaknesses
related to stock-based compensation. On this news, the price of
Cutera common stock declined more than 12%.
A week later, on March 24, 2023, Cutera disclosed that Nasdaq
notified it that it was "not in compliance with Nasdaq Listing Rule
5250(c)(1)" for failing to timely file its 2022 annual financial
report. On this news, the price of Cutera common stock decline more
than 3%.
Then, on April 12, 2023, Cutera announced that it had terminated
its Executive Chairman and Chairman of the Board, defendant J.
Daniel Plants, as well as its Chief Executive Officer, defendant
David H. Mowry. On this news, the price of Cutera common stock
declined more than 28%.
Finally, on May 9, 2023, Cutera reported disappointing financial
results for the first quarter 2022 that were "below expectations
due to execution challenges in the business" and announced that
Cutera's Chief Financial Officer, defendant Rohan Seth, had
resigned. On this news, the price of Cutera common stock declined
30% over two trading sessions, further damaging investors.
THE LEAD PLAINTIFF PROCESS: The Private Securities Litigation
Reform Act of 1995 permits any investor who purchased or acquired
Cutera common stock during the Class Period to seek appointment as
lead plaintiff of the Cutera class action lawsuit. A lead plaintiff
is generally the movant with the greatest financial interest in the
relief sought by the putative class who is also typical and
adequate of the putative class. A lead plaintiff acts on behalf of
all other class members in directing the Cutera class action
lawsuit. The lead plaintiff can select a law firm of its choice to
litigate the Cutera class action lawsuit. An investor's ability to
share in any potential future recovery is not dependent upon
serving as lead plaintiff of the Cutera class action lawsuit.
ABOUT ROBBINS GELLER: Robbins Geller is one of the world's leading
complex class action firms representing plaintiffs in securities
fraud cases. The Firm is ranked #1 on the most recent ISS
Securities Class Action Services Top 50 Report for recovering more
than $1.75 billion for investors in 2022 - the third year in a row
Robbins Geller tops the list. And in those three years alone,
Robbins Geller recovered nearly $5.3 billion for investors, more
than double the amount recovered by any other plaintiffs' firm.
With 200 lawyers in 9 offices, Robbins Geller is one of the largest
plaintiffs' firms in the world and the Firm's attorneys have
obtained many of the largest securities class action recoveries in
history, including the largest securities class action recovery
ever - $7.2 billion - in In re Enron Corp. Sec. Litig. Please visit
the following page for more information:
https://www.rgrdlaw.com/services-litigation-securities-fraud.html
Contact:
Robbins Geller Rudman & Dowd LLP
655 W. Broadway, Suite 1900, San Diego, CA 92101
J.C. Sanchez, 800-449-4900
jsanchez@rgrdlaw.com [GN]
D & S PIZZA: Trott Sues Over Drivers' Unreimbursed Expenses
-----------------------------------------------------------
FEATHER TROTT, individually and on behalf of similarly situated
persons, Plaintiff v. D & S PIZZA, INC., and DUANE L CARLSON JR.,
Defendants, Case No. 0:23-cv-01397 (D. Minn., May 17, 2023) is a
collective action brought by the Plaintiff under the Fair Labor
Standards Act to recover from the Defendants unpaid minimum wages
and overtime hours owed to herself and similarly situated delivery
drivers employed by Defendants at its Domino's stores.
The Defendants operate numerous Domino's Pizza franchise stores.
The Defendants employ delivery drivers who use their own
automobiles to deliver pizza and other food items to their
customers. However, instead of reimbursing delivery drivers for the
reasonably approximate costs of the business use of their vehicles,
Defendants use a flawed method to determine reimbursement rates
that provides such an unreasonably low rate beneath any reasonable
approximation of the expenses they incur that the drivers'
unreimbursed expenses cause their wages to fall below the federal
minimum wage during some or all workweeks, says the suit.
The Plaintiff was employed by the Defendants from approximately
February 2002 to July 2021 as a delivery driver at Defendants'
Domino's store located in International Falls, Minnesota.[BN]
The Plaintiff is represented by:
Stuart L. Goldenberg, Esq.
Ethan T. Adams, Esq.
GOLDENBERGLAW, PLLC
800 LaSalle Avenue, Suite 2150
Minneapolis, MN 55402
Telephone: (612) 333-4662
Facsimile: (612) 367-8107
E-mail: slgoldenberg@goldenberglaw.com
eadams@goldenberglaw.com
D'PABLO ALTERATIONS: Sanchez Files Suit Over Unpaid Wages
---------------------------------------------------------
JULIO SANCHEZ, on behalf of himself and others similarly situated,
Plaintiff v. D'PABLO ALTERATIONS CORP. and PEDRO HIDALGO,
individually, Defendants, Case No. 1:23-cv-03670 (E.D.N.Y., May 17,
2023) arises from the Defendants' alleged unlawful labor practices
in violation of the Fair Labor Standards Act, the New York Labor
Law, and the Wage Theft Prevention Act.
The Plaintiff was employed by the Defendants as a tailor from June
2016 until May 6, 2023. He alleges the Defendants' failure to pay
applicable minimum wage, failure to provide notice at time of
hiring, and failure to provide accurate wage statements.
D'PABLO ALTERATIONS CORP. is a tailoring company based in New
York.[BN]
The Plaintiff is represented by:
Lina Stillman, Esq.
STILLMAN LEGAL, P.C.
42 Broadway, 12th Floor
New York, NY 10004
Telephone: (212) 203-2417
DFINITY USA: Roche Freedman Appointment in Valenti Suit Withdrawn
-----------------------------------------------------------------
In the lawsuit captioned DANIEL VALENTI, et al., Plaintiffs v.
DFINITY USA RESEARCH LLC, et al., Defendants, Case No.
21-cv-06118-JD (N.D. Cal.), Judge James Donato of the U.S. District
Court for the Northern District of California rules that the prior
appointment of Roche Freedman LLP as lead counsel is withdrawn and
the order is dissolved with respect to counsel.
The case is a securities fraud class action against Defendants
Dfinity USA Research LLC; Dfinity Foundation; and individual
defendant Dominic Williams, the CEO of Dfinity USA and founder of
Dfinity Foundation. The operative complaint alleges that the
Defendants did not register Dfinity's cryptocurrency "ICP tokens"
as a security with the U.S. Securities and Exchange Commission
(SEC), and "reaped billions of dollars in profits" by unlawfully
"selling and promoting these unregistered security tokens to
investors, and by transacting in them while in possession of
material, non-public information." The complaint presents eight
causes of action under Sections 5, 12(a)(1) and 15 of the
Securities Act; Section 10(b) of the Exchange Act and corresponding
SEC Rule 10b-5; and Sections 20A and 20(a) of the Exchange Act.
The case proceeded apace under the Private Securities Litigation
Reform Act of 1995 (PSLRA), with the appointment of Henry Rodriguez
as lead plaintiff and the Roche Freedman LLP law firm as lead
counsel for the putative class, and the initial stay of discovery
pending the resolution of the Defendants' motion to dismiss.
The case, then, took a dramatic turn that put the normal course of
litigation on hold, Judge Donato notes. Before the hearing on the
motion to dismiss, the Defendants asked to disqualify the law firm
of Roche Freedman LLP based on concerns gleaned from a variety of
sources.
Shortly after that, a district court in the Southern District of
New York issued an order that terminated Roche Freedman LLP as a
lead counsel in an unrelated securities action (In re Tether and
Bitfinex Crypto Asset Litigation, No. 19-cv-09236-KPF, Dkt. No. 253
(S.D.N.Y. Oct. 28, 2022)).
Since then, the parties have waged a bitter war over lead counsel
in this case, with charges of personal vendettas, deepfake videos,
and other events not typically encountered in securities lawsuits.
Along the way, Roche Freedman LLP was reconstituted as Freedman
Normand Friedland LLP (FNF), consisting of most of the prior firm's
attorneys. FNF was never appointed lead counsel in this case, and
has not formally sought appointment under the PSLRA. Even so, the
parties have in effect treated FNF as though it were lead counsel,
and the dispute has focused on whether it should be retained in
that role.
The Court held a hearing on Dfinity's disqualification motion, at
which it emphasized that the question would be answered under Rule
23 of the Federal Rules of Civil Procedure, the PSLRA, and the
Court's oversight of the rights and interests of absent class
members. The Court directed the parties to engage in targeted
discovery with respect to disqualification, and to file
supplemental briefs on the issue.
After consideration of these materials, and the record as a whole,
the Court concludes that an appointment of FNF is not in the best
interests of the class. The lead plaintiff will have an opportunity
to propose new class counsel.
In its motion to disqualify the Plaintiffs' counsel, Dfinity
pointed to a report and a series of video clips released by Crypto
Leaks in August 2022, in which Mr. Roche describes his firm's close
ties to Ava Labs -- a company that develops a blockchain called
Avalanche -- and its executives, his financial interest in Ava
Labs, and his firm's improper use of litigation against Ava Labs'
competitors, such as Dfinity. Dfinity said that these statements
called for the Plaintiffs' counsel's disqualification because they
show that Roche's personal interest and loyalties to Ava Labs come
before, and predominate over, the interests of the putative class.
Even before the Defendants had filed the disqualification motion,
attorney Roche had filed a notice of withdrawal as counsel on the
docket, Judge Donato notes. The notice stated that Roche is no
longer involved in Roche Freedman's class action practice and is,
therefore, withdrawing as counsel of record in this case.
By the time it filed an opposition to the Defendants' motion, Roche
Freedman had changed to Freedman Normand Friedland LLP (FNF). FNF's
opposition argued that there was evidence suggesting that the
Defendants had "secretly launched CryptoLeaks," the anonymous
website that had hosted the Kyle Roche videos, and that the
Defendants had likely hired the man, who set up a meeting with
Roche, under false pretenses and then secretly recorded him.
At the hearing, the Court made clear that, even though the
Defendants had invoked the California Rules of Professional Conduct
in their motion, the Court found it more appropriate to view this
issue through the lens of "Rule 23 and the PSLRA," with the
paramount goal of protecting the putative class and the Named
Plaintiffs with counsel, who are going to have an untarnished
allegiance on a fiduciary duty basis to the putative class and the
Named Plaintiffs.
Because the Court lacked clarity on FNF's existing ties with Ava
Labs, the Court ordered a focused Rule 30(b)(6) deposition of FNF
on a handful of topics most relevant to FNF's ability to proceed on
behalf of the class.
The Rule 30(b)(6) deposition was taken, and the parties have filed
supplemental briefs. Many other filings have been made, as the
litigation of this issue has taken on a life of its own, Judge
Donato says. FNF filed a discovery dispute letter requesting to
designate the FNF deposition transcript as "Attorneys' Eyes Only,"
in part because of an alleged threat the Defendants made as to
Roche, and the Defendants responded with a motion to strike the
statements about the alleged threat.
The Plaintiffs also filed an administrative motion for leave to
file a notice of supplemental evidence in opposition to the
Defendants' motion to disqualify. The motion requests leave to file
an expert report which, FNF says, explains that many of the videos
on which the Defendants rely may be the product of deepfake
technology. Dfinity opposes the request.
Judge Donato opines that the record warrants two conclusions: (i)
the reconstituted FNF firm is not nearly as independent of Kyle
Roche or Ava Labs as FNF suggests, and (ii) there is serious doubt
about the ability of FNF to litigate this case in the best
interests of the class. Judge Donato points out that FNF's docket
entries manifest undue attention to its own interests and concerns,
with scant mention of the class and its claims.
The record has other powerful indications that the best interests
of the class are not in the forefront of FNF's priorities, Judge
Donato says. This underscores the concern that FNF is heavily
invested in protecting its own interests, to the detriment of those
of the class, Judge Donato points out.
Overall, Judge Donato opines, the record demonstrates that FNF is
unduly focused on the Defendants' animosity toward the Plaintiffs'
counsel, which it has raised at every possible turn. The Court
concludes that FNF is not able to "fairly and adequately represent
the interests of the class" under Fed. R. Civ. P. 23(g)(4).
To the extent the prior appointment of Roche Freedman LLP was a
basis for FNF to be deemed lead counsel, Judge Donato holds that
the appointment is withdrawn and the order is dissolved with
respect to counsel. Henry Rodriguez remains lead plaintiff. The
Defendants' disqualification motion is terminated in all other
respects.
Judge Donato grants FNF's request for a protective order
designating its 30(b)(6) deposition transcript as "Attorneys' Eyes
Only." To be clear, the Judge explains, FNF's statements about the
Defendants' alleged threats as to Roche played no role in the
Court's analysis. But even without that unnecessary detail, the
requested sealing is appropriate because the deposition transcript
is wholly unrelated to the merits of the underlying causes of
action in this case. For the same reasons, Judge Donato rules that
the Defendants' motion to seal is granted to the extent requested
by FNF. FNF's motion to seal is also granted.
The Defendants' motion to strike FNF's statements about the alleged
threats on Roche is granted. FNF's motion for leave to file a
notice of supplemental evidence is denied.
Judge Donato holds that lead plaintiff Henry Rodriguez may propose
alternate lead counsel for the Court's consideration and approval
by Aug. 7, 2023. A status conference is set for Aug. 17, 2023, at
10:00 a.m. The case is stayed and will be administratively closed
in the interim.
The record indicates that Ocampo v. Dfinity USA Research LLC, et
al., Case No. 21-cv-03843, in the Superior Court of California,
County of San Mateo, is a case that overlaps significantly with
this one, Judge Donato notes. The Defendants' counsel are directed
to provide a courtesy copy of this order to the plaintiffs' counsel
in the Ocampo action.
A full-text copy of the Court's Order dated May 8, 2023, is
available at https://tinyurl.com/2s37xyey from Leagle.com.
DIGITAL TURBINE: Briefing on Consolidated Securities Suit Ongoing
-----------------------------------------------------------------
Digital Turbine 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 25, 2023, that briefing is ongoing
for the consolidated securities class suits.
On June 6, 2022 and July 21, 2022, stockholders of the Company
filed class action complaints against the Company and certain of
the Company's officers in the Western District of Texas related to
Digital Turbine, Inc.'s announcement in May 2022 that it would
restate some of its financial results.
The claims allege violations of certain federal securities laws.
These have been consolidated into In re Digital Turbine, Inc.
Securities Litigation, Case No. 1:22-cv-00550-DAE.
A motion to dismiss this case was filed on April 18, 2023 and
briefing is ongoing.
The Company and individual defendants deny any allegations of
wrongdoing and the Company plans to vigorously defend against the
claims asserted in these complaints. Due to the early stages of
these cases, management is unable to assess a likely outcome or
potential liability at this time.
Digital Turbine is a software company that delivers products to
assist third parties in monetizing through the utilization of
mobile advertising. The Company completed its acquisitions of
AdColony Holdings AS and Fyber N.V. on April 29 and May 25, 2021,
respectively.[BN]
DOLLAR TREE: Shields Files Glucosamine Supplements Mislabeling Suit
-------------------------------------------------------------------
Robert B. Shields, individually and on behalf of all others
similarly situated, Plaintiff v. Dollar Tree, Inc., Defendant, Case
No. 3:23-cv-00925-JLS-BLM (S.D. Cal., May 19, 2023) is a class
action against the Defendant for unjust enrichment and/or
restitution, for breach of warranty under the Magnuson Moss
Warranty Act, and for violations of the California Unfair
Competition Law, the California Consumer Legal Remedies Act, and
the California False Advertising Law.
This case challenges Defendant's practice of selling counterfeit
glucosamine sulfate supplements to its customers, including
Plaintiff. Simply stated, these products are marketed as
glucosamine sulfate when, as a matter of fact, no glucosamine
sulfate is found in the products. The Plaintiffs and the Class and
Subclass were misled and deceived by Defendant's material
misrepresentations and/or omissions and were damaged and injured as
a result of Defendant's conduct, says the suit.
Defendant Dollar Tree, Inc., is an American multi-price-point chain
of discount variety stores.[BN]
The Plaintiff is represented by:
Jingxin Li, Esq.
LAW OFFICE OF JASON LI, P.C.
820 S Garfield Ave, Ste 102
Alhambra, CA 91801-5838
Telephone: (626) 537-1403
Facsimile: (626) 414-5627
E-mail: jasonli@jasonlilaw.com
DOLLAR TREE: Tentative Settlement in MDL Suits for Court Approval
-----------------------------------------------------------------
Dollar Tree Inc. disclosed in its Form 10-Q Report for the
quarterly period ending April 29, 2023 filed with the Securities
and Exchange Commission on May 25, 2023, that the tentative
settlement in the multi-district class suits if finalized is
subject to the approval of the court.
Since February 22, 2022, Family Dollar has been named in 14
putative class action complaints primarily related to issues
associated with DC 202 described above. The lawsuits are proceeding
in federal court in Tennessee using the federal court's
multi-district litigation ("MDL") process.
An amended consolidated complaint seeking class action status was
filed October 17, 2022 alleging violations of the Mississippi,
Arkansas, Louisiana, Tennessee, Alabama and Missouri consumer
protection laws, breach of warranty, negligence, misrepresentation,
deception and unjust enrichment related to the sale of products
that may be contaminated by virtue of rodent infestation and other
unsanitary conditions at DC 202.
Plaintiffs seek damages, attorney fees and costs, punitive damages
and the replacement of, or refund of, money paid to purchase the
relevant products, and any other legal relief available for their
claims (in each case in unspecified amounts), including equitable
and injunctive relief.
As a result of a mediation held in April 2023, the parties have
reached a tentative settlement in principle which if finalized will
then be subject to court approval.
Dollar Tree, Inc. -- https://www.dollartree.com/ -- is an American
multi-price-point chain of discount variety stores.[BN]
DST SYSTEMS: Loses Bid to Stay Injunction in Singh Lawsuit
----------------------------------------------------------
In the class action lawsuit captioned as PARMINDERJIT SINGH v. DST
SYSTEMS, INC., Case No. 4:21-9195-NKL (W.D. Mo.), the Hon. Judge
Nanette K. Laughrey entered an order denying DST motion to stay the
Court's injunction because it has failed to meet its burden of
proof.
The Court said, "Because DST has failed to show irreparable harm,
and the Judgment Creditors would be substantially harmed if the
injunction were lifted, and DST has not shown a likelihood of
success on the merits, and public interest considerations weigh
against lifting the injunction, a stay of the injunction is
inappropriate."
DST argues that because the Ferguson class includes 9,000 members,
it is in the public interest to facilitate settlement. DST
disregards the fact that several avenues for settlement remain open
to it. In any event, permitting DST to strip the Judgment Creditors
of a substantial portion of the value of judgments entered in their
favor without their express consent would undermine public
confidence in the predictability and reliability of the judicial
system.
DST Systems moves for stay of the injunction the Court entered on
April 10, 2023.
On March 31, 2023, the Court entered an order that confirmed
arbitration awards in favor of 55 plaintiffs (the "Judgment
Creditors") and entered a final judgment in each case.
On April 10, 2023, counsel for the Judgment Creditors moved on an
emergency basis, but with notice, for a temporary restraining order
and preliminary injunction restraining and enjoining DST, the DST
Systems, Inc. 401(K) Profit Sharing Plan, The Advisory Committee of
the DST Systems, Inc. 401(K) Profit Sharing Plan, The Compensation
Committee of the Board of Directors of DST Systems, Inc., and their
respective law firms, and anyone acting on their behalf or in
concert with them, "from settling, or attempting to settle, through
any class or representative action, the Confirmation Plaintiffs'
individual arbitration awards, or any part thereof, unless such
settlement is entered into individually and voluntarily by the
Confirmation Plaintiff and the attorneys to whom any related fees
and costs were awarded."
DST Systems is an American company that was acquired by SS&C
Technologies in 2018. The company provided advisory, technology and
operations outsourcing services to the financial services and
healthcare industries.
A copy of the Court's order dated May 5, 2023, is available from
PacerMonitor.com at https://bit.ly/3W3Kt3P at no extra charge.[CC]
DST SYSTEMS: Loses Bid to Stay Injunction in Vankam Lawsuit
-----------------------------------------------------------
In the class action lawsuit captioned as MITCH VANKAM, v. DST
SYSTEMS, INC., Case No. 4:21-09113-NKL (W.D. Mo.), the Hon. Judge
Nanette K. Laughrey entered an order denying DST motion to stay the
Court's injunction because it has failed to meet its burden of
proof.
The Court said, "Because DST has failed to show irreparable harm,
and the Judgment Creditors would be substantially harmed if the
injunction were lifted, and DST has not shown a likelihood of
success on the merits, and public interest considerations weigh
against lifting the injunction, a stay of the injunction is
inappropriate."
DST argues that because the Ferguson class includes 9,000 members,
it is in the public interest to facilitate settlement. DST
disregards the fact that several avenues for settlement remain open
to it. In any event, permitting DST to strip the Judgment Creditors
of a substantial portion of the value of judgments entered in their
favor without their express consent would undermine public
confidence in the predictability and reliability of the judicial
system.
DST Systems moves for stay of the injunction the Court entered on
April 10, 2023.
On March 31, 2023, the Court entered an order that confirmed
arbitration awards in favor of 55 plaintiffs (the "Judgment
Creditors") and entered a final judgment in each case.
On April 10, 2023, counsel for the Judgment Creditors moved on an
emergency basis, but with notice, for a temporary restraining order
and preliminary injunction restraining and enjoining DST, the DST
Systems, Inc. 401(K) Profit Sharing Plan, The Advisory Committee of
the DST Systems, Inc. 401(K) Profit Sharing Plan, The Compensation
Committee of the Board of Directors of DST Systems, Inc., and their
respective law firms, and anyone acting on their behalf or in
concert with them, "from settling, or attempting to settle, through
any class or representative action, the Confirmation Plaintiffs'
individual arbitration awards, or any part thereof, unless such
settlement is entered into individually and voluntarily by the
Confirmation Plaintiff and the attorneys to whom any related fees
and costs were awarded."
DST Systems is an American company that was acquired by SS&C
Technologies in 2018. The company provided advisory, technology and
operations outsourcing services to the financial services and
healthcare industries.
A copy of the Court's order dated May 5, 2023, is available from
PacerMonitor.com at https://bit.ly/42U65St at no extra charge.[CC]
DST SYSTEMS: Loses Bid to Stay Injunction in Wright Lawsuit
-----------------------------------------------------------
In the class action lawsuit captioned as ALICE WRIGHT, v. DST
SYSTEMS, INC., Case No. 4:21-09164-NKL (W.D. Mo.), the Hon. Judge
Nanette K. Laughrey entered an order denying DST motion to stay the
Court's injunction because it has failed to meet its burden of
proof.
The Court said, "Because DST has failed to show irreparable harm,
and the Judgment Creditors would be substantially harmed if the
injunction were lifted, and DST has not shown a likelihood of
success on the merits, and public interest considerations weigh
against lifting the injunction, a stay of the injunction is
inappropriate."
DST argues that because the Ferguson class includes 9,000 members,
it is in the public interest to facilitate settlement. DST
disregards the fact that several avenues for settlement remain open
to it. In any event, permitting DST to strip the Judgment Creditors
of a substantial portion of the value of judgments entered in their
favor without their express consent would undermine public
confidence in the predictability and reliability of the judicial
system.
DST Systems moves for stay of the injunction the Court entered on
April 10, 2023.
On March 31, 2023, the Court entered an order that confirmed
arbitration awards in favor of 55 plaintiffs (the "Judgment
Creditors") and entered a final judgment in each case.
On April 10, 2023, counsel for the Judgment Creditors moved on an
emergency basis, but with notice, for a temporary restraining order
and preliminary injunction restraining and enjoining DST, the DST
Systems, Inc. 401(K) Profit Sharing Plan, The Advisory Committee of
the DST Systems, Inc. 401(K) Profit Sharing Plan, The Compensation
Committee of the Board of Directors of DST Systems, Inc., and their
respective law firms, and anyone acting on their behalf or in
concert with them, "from settling, or attempting to settle, through
any class or representative action, the Confirmation Plaintiffs'
individual arbitration awards, or any part thereof, unless such
settlement is entered into individually and voluntarily by the
Confirmation Plaintiff and the attorneys to whom any related fees
and costs were awarded."
DST Systems is an American company that was acquired by SS&C
Technologies in 2018. The company provided advisory, technology and
operations outsourcing services to the financial services and
healthcare industries.
A copy of the Court's order dated May 5, 2023, is available from
PacerMonitor.com at https://bit.ly/3Bn5vRl at no extra charge.[CC]
DST SYSTEMS: Loses Bid to Stay Injunction in Yungeberg Lawsuit
--------------------------------------------------------------
In the class action lawsuit captioned as SCOTT YUNGEBERG, v. DST
SYSTEMS, INC., Case No. 4:21-09038-NKL (W.D. Mo.), the Hon. Judge
Nanette K. Laughrey entered an order denying DST motion to stay the
Court's injunction because it has failed to meet its burden of
proof.
The Court said, "Because DST has failed to show irreparable harm,
and the Judgment Creditors would be substantially harmed if the
injunction were lifted, and DST has not shown a likelihood of
success on the merits, and public interest considerations weigh
against lifting the injunction, a stay of the injunction is
inappropriate."
DST argues that because the Ferguson class includes 9,000 members,
it is in the public interest to facilitate settlement. DST
disregards the fact that several avenues for settlement remain open
to it. In any event, permitting DST to strip the Judgment Creditors
of a substantial portion of the value of judgments entered in their
favor without their express consent would undermine public
confidence in the predictability and reliability of the judicial
system.
DST Systems moves for stay of the injunction the Court entered on
April 10, 2023.
On March 31, 2023, the Court entered an order that confirmed
arbitration awards in favor of 55 plaintiffs (the "Judgment
Creditors") and entered a final judgment in each case.
On April 10, 2023, counsel for the Judgment Creditors moved on an
emergency basis, but with notice, for a temporary restraining order
and preliminary injunction restraining and enjoining DST, the DST
Systems, Inc. 401(K) Profit Sharing Plan, The Advisory Committee of
the DST Systems, Inc. 401(K) Profit Sharing Plan, The Compensation
Committee of the Board of Directors of DST Systems, Inc., and their
respective law firms, and anyone acting on their behalf or in
concert with them, "from settling, or attempting to settle, through
any class or representative action, the Confirmation Plaintiffs'
individual arbitration awards, or any part thereof, unless such
settlement is entered into individually and voluntarily by the
Confirmation Plaintiff and the attorneys to whom any related fees
and costs were awarded."
DST Systems is an American company that was acquired by SS&C
Technologies in 2018. The company provided advisory, technology and
operations outsourcing services to the financial services and
healthcare industries.
A copy of the Court's order dated May 5, 2023, is available from
PacerMonitor.com at https://bit.ly/3I87XPA at no extra charge.[CC]
ELI LILLY: Settles Insulin Overpricing Class Action Suit for $500M
------------------------------------------------------------------
Attorneys at Hagens Berman and Carella Byrne Cecchi Olstein Brody &
Agnello on May 26 announced a settlement with insulin-maker Eli
Lilly worth more than $500 million, culminating a class-action
lawsuit on behalf of insulin purchasers alleging systematic
overpricing of insulin.
"This settlement will bring immense, forward-looking relief,
especially for those who are underinsured or paying with
co-insurance -- those most in need of assistance paying for the
medications they need to live," said Steve Berman, managing partner
and co-founder of Hagens Berman and court-appointed co-lead counsel
representing insulin purchasers in the lawsuit. "Those paying
out-of-pocket for insulin will receive four years of insulin at a
reduced price under the settlement."
"Our experts calculate this will save these consumers $500 million
in payments for their insulin over the four-year period," Berman
added.
Hagens Berman and Carella Byrne filed the first-of-its-kind lawsuit
in 2017 in the U.S. District Court for the District of New Jersey.
The class action details several accounts from patients resorting
to extreme measures to survive rising insulin prices, including
starving themselves to control their blood sugar levels,
intentionally slipping into diabetic ketoacidosis to receive
insulin samples from hospital emergency rooms, under-dosing
insulin, and taking expired insulin.
"We are incredibly pleased to culminate this important case and
over six years of hard-fought litigation on behalf of millions of
individuals who rely on insulin every day," said James Cecchi of
Carella Byne, co-lead counsel representing the class. "We believe
this settlement will have a positive impact on the daily lives of
millions of Americans living with diabetes."
Benefits Under the Insulin Pricing Settlement
The settlement for insulin purchasers includes immense benefits for
those most harmed by prohibitively high prices - cash payers, as
well as the underinsured and those paying through co-insurance.
-- Forward-Looking Benefits: Eli Lilly will provide
comprehensive affordability solutions to insulin purchasers through
a four-year plan that stipulates no one will pay more than $35
out-of-pocket monthly for insulin.
-- Settlement Funds: For those not eligible for the first tier
of relief, a $13.5 million settlement fund will be established for
the class. If any amount remains unclaimed, remaining funds will be
redistributed to claimants, so that funds are rightfully delivered
to the class, for up to three times their claimed losses.
According to settlement documents, "Eligible Settlement Claimants
can receive cash payments based on their purchases of Lilly Insulin
Products during the Settlement Class Period to be calculated based
on a formula set by Plaintiffs and the approved plan of
allocation."
The process for submitting a settlement claim is designed to be as
simple and convenient as possible, and the settlement claim form
will be available on the settlement website and can be submitted
electronically once the settlement has been approved by the court.
Immediately following preliminary approval of the settlement
agreement, plaintiffs plan to serve subpoenas on the six largest
pharmacy benefit manufacturers and seven largest national retail
pharmacy chains in the United States to obtain transactional data.
Settlement documents state that most settlement claims will be
verifiable through this transactional data without requiring class
members to submit documentation.
Class members will also be notified directly based on this
available information, and additional targeted ads will be used to
ensure all eligible are aware and notified of their benefits.
The class includes anyone in the U.S. who paid any portion of the
purchase price for any Lilly Insulin Product, for themselves or on
behalf of any family member or dependent, no matter how they paid
for it, since Jan. 1, 2009, to the date of entry of the final
approval order of the settlement. The settlement references a list
price, Average Wholesale Price, and Wholesale Acquisition Cost or
Price. Insulin purchased exclusively through Medicaid is excluded.
During the lawsuit's six years, the parties saw multiple rounds of
motion to dismiss briefing, three amended complaints and extensive
discovery, including more than 60 depositions of plaintiffs and
defendants' employees.
Read more about the law firm's class-action lawsuit against insulin
makers.
About Hagens Berman
Hagens Berman is a global plaintiffs' rights complex litigation law
firm with a tenacious drive for achieving real results for those
harmed by corporate negligence and fraud. Since its founding in
1993, the firm's determination has earned it numerous national
accolades, awards and titles of "Most Feared Plaintiff's Firm,"
MVPs and Trailblazers of class-action law. More about the law firm
and its successes can be found at www.hbsslaw.com. Follow the firm
for updates and news at @ClassActionLaw.
About Carella Byne
Carella Byrne is one of the leading law firms in the New Jersey --
New York metropolitan area, serving a diverse clientele ranging
from small businesses to Fortune 500 corporations. Carella Byrne
has led -- or been part of the leadership team -- in many of the
nation's most complex and important consumer class actions
affecting consumer rights. More about the law firm and its
successes can be found at www.carellabyrne.com.
Contacts
Ash Klann
pr@hbsslaw.com
206-268-9363 [GN]
EMPOWER FEDERAL: Final Nod of Class Settlement in Wellington Sought
-------------------------------------------------------------------
In the class action lawsuit captioned as Danielle Wellington,
Individually and on Behalf of All Others Similarly Situated, v.
Empower Federal Credit Union, DOES 1 Through 5, Case No.
5:20-cv-01367-DNH-ML (N.D.N.Y.), the Plaintiffs Danielle Wellington
and Dianna Conley move the Court for entry of an Order to:
(1) granting final approval of the class action settlement;
(2) granting final certification of the Settlement Class;
(3) granting the Plaintiffs' request for attorney's fees and
costs;
(4) granting the Plaintiffs' request for approval of class
administrator expenses; and
(5) granting the Plaintiffs' request for a service award to the
class representatives, together with such other and further
relief as the Court may deem just and proper.
Empower Federal is a full-service financial institution that
provides savings, loan, and transaction services.
A copy of the Plaintiffs' motion dated May 12, 2023, is available
from PacerMonitor.com at https://bit.ly/41ZlPCY at no extra
charge.[CC]
The Plaintiffs are represented by:
Elaine S. Kusel, Esq.
Richard D. McCune, Esq.
MCCUNE LAW GROUP, MCCUNE WRIGHT AREVALO
VERCOSKI KUSEL WECK BRANDT, APC
One Gateway Center, Suite 1500
Newark, NJ 07102
Telephone: (973) 888-1203
Facsimile: (909) 557-1275
E-mail: esk@mccunewright.com
rdm@mccunewright.com
- and -
Joseph I. Marchese, Esq.
BURSOR & FISHER, P.A.
888 Seventh Ave.
New York, NY 10019
Telephone: (646) 837-7150
Facsimile: (212) 989-9163
E-mail: jmarchese@bursor.com
EPIC AIRCRAFT: Loses Bid to Compel Hanney's Disclosure of Damages
-----------------------------------------------------------------
Magistrate Judge Mustafa T. Kasubhai of the U.S. District Court for
the District of Oregon, Eugene Division, denies the Defendant's
Motion to Compel Disclosure of Damages in the lawsuit captioned
BRUNO HANNEY; and PAUL TAYLOR, Individually and on behalf of all
others similarly situated, Plaintiffs v. EPIC AIRCRAFT LLC, a
Delaware limited liability company, Defendant, Case No.
6:21-cv-01199-MK (D. Or.).
The Plaintiffs filed the putative class action against Defendant
Epic Aircraft, LLC, alleging breach of contract, breach of the
implied covenant of good faith and fair dealing, and for violating
the Oregon Unlawful Trade Practices Act (UTPA), Or. Rev. Stat.
(ORS) Sections 646.605, et seq. Epic moves to compel the
Plaintiffs' disclosure of damages.
Epic manufactures airplanes. In 2014, Epic announced its plan to
design, develop, and manufacture a single-engine, six-seat
turboprop E1000 aircraft, with hopes of receiving Federal Aviation
Administration ("FAA") certification in 2015. Epic took
reservations for the E1000 aircraft at a price of $2.75 million.
Epic's customers, including the Plaintiffs, entered into aircraft
customer reservation agreements and submitted the required monetary
deposits. Epic received FAA type and production certifications in
November 2019 and July 2020 respectively.
Shortly after receiving FAA production certification, Epic informed
its customers with reservation agreements that the aircraft would
not be available for sale. Instead, Epic offered to sell a "new"
E1000 GX aircraft model to its existing E1000 customers for a
retail price of $3.85 million.
In August 2021, the Plaintiffs filed this lawsuit on behalf of
themselves and other reservation agreement holders, alleging that
Epic breached the terms of E1000 aircraft customer reservation
agreements and made material misrepresentations and omissions in
connection with the marketing and sale of E1000 aircraft.
Following Epic's filing of this motion, the Plaintiffs served Epic
with supplemental discovery including additional damages
information, noting that they believed Epic's motion to be resolved
by the additional disclosures.
The Court ordered the parties to submit a joint status report
identifying any remaining discovery issues arising out of Epic's
motion and requiring Court intervention to resolve. Epic identifies
six remaining issues with the Plaintiffs' Second Supplemental Rule
26(a) Initial Disclosures. Epic argues that those same deficiencies
apply to the Plaintiffs' answer to Interrogatory No. 2.
The principal remaining disagreement concerns whether the
Plaintiffs' damages disclosures lack required specificity. The
Plaintiffs have disclosed that damages are the difference between
the price of a certified E1000 aircraft secured in their executed
E1000 aircraft reservation deposit agreements ($2.75 million) and
the value of a certified E1000 or substantially similar aircraft at
the time when either the breach occurred or when Epic falsely
informed Plaintiffs that Epic terminated its program for the Breach
of Contract and UTPA claims respectively ("currently estimated to
be around $3.85 million").
Epic contends that the Plaintiff's disclosure is insufficient under
Rule 26(a)(1)(iii) because it does not does not identify (1) the
substantially similar aircraft, (2) the exact date, and (3) the
exact value of the damages claimed. The Plaintiffs respond by
noting that the information they need in order to provide more
specificity is in Epic's possession and is the subject of the
Plaintiffs' outstanding requests for production.
The Court finds that the Plaintiffs have disclosed sufficient
information under Rule 26(a) at this stage of the case. Although
Rule 26(a) requires a calculation of damages, the advisory
committee's notes make clear that the obligation only applies to
information "reasonably available" and that a party would not be
expected to provide a calculation of damages which depends on
information in the possession of another party or person.
The Plaintiffs have identified the method by which their damages
are calculated, provided an estimate of damages, and explained that
any more specific information is in the possession of Epic. The
Plaintiffs will be required under the rule to update their estimate
once they obtain the requested discovery from Epic, but their
obligation at this stage is only to provide information "reasonably
available." The Court is satisfied that the Plaintiffs have
complied with their obligation under Rule 26(a) at this stage of
the case.
The Court has likewise reviewed Epic's remaining objections along
with the Plaintiffs' position and finds that the Plaintiffs'
disclosures are legally sufficient at this stage. The Court also
notes generally that several of the remaining objections lack any
citation to legal authority and appear to the Court to border on
frivolous.
When the Court invited the parties to submit a joint status report
identifying remaining issues, the Court expected that the parties
would work together in good faith to ensure that any matters that
could be resolved without Court intervention. The remaining areas
of dispute leave the Court wondering whether a meaningful attempt
to discuss and resolve these issues ever took place.
Judge Kasubhai says this dispute is only the latest example of a
trend of both the Plaintiffs and the Defendant in this case to seek
Court intervention in lieu of engaging in constructive conferral
and cooperation in the discovery process. The Court admonishes the
parties that the discovery process is subject to the overriding
limitation of good faith. Resolution of discovery issues by the
Court should be the parties' last resort, not a regular practice,
as it is not the Court's function to drag the parties kicking and
screaming through discovery, Judge Kasubhai points out.
While the Court recognizes that some discovery disputes require the
Court's assistance to resolve, it directs the parties to recommit
themselves to engaging in cooperative discovery and to carefully
consider--especially when specifically directed by the Court to do
so--whether meaningful disputes remain as to each issue before
seeking Court intervention. The Court will not suffer either
parties' abuse of the discovery process as a litigation tactic.
A full-text copy of the Court's Opinion and Order dated May 8,
2023, is available at https://tinyurl.com/rnxpph5s from
Leagle.com.
EXELA TECH: Seeks More Time to Oppose Class Cert Briefing in Shen
-----------------------------------------------------------------
In the class action lawsuit captioned as BO SHEN, Individually and
On Behalf of All Others Similarly Situated, v. EXELA TECHNOLOGIES,
INC., RONALD COGBURN, JAMES G. REYNOLDS AND PAR CHADHA, Case No.
3:20-cv-00691-D (N.D. Tex.), the Defendants move for a two-week
extension of the May 19, 2023 deadline for filing opposition
briefing to class certification.
-- The Defendants believe the additional time is necessary in
light
of deposition scheduling (including with respect to the
Plaintiff's expert), out-of-town travel, and obligations in
other matters. The proposed extension would result in a new
deadline of June 2, 2023 for the Defendants' class
certification
response. With the Plaintiff's consent, the Defendants also
request that the Plaintiff's reply deadline be extended to
June
30, 2023 to accommodate intervening depositions, as the
parties
have scheduled multiple depositions for June, including the
Defendant Chadha's on June 23, 2023.
-- The Plaintiff's counsel confirmed they are unopposed to this
motion. The Defendants thus request that the Court extend the
deadlines for the Defendants' class certification opposition
to
June 2, 2023, and for the Plaintiff's reply brief to June 30,
2023.
Exela is an American business process automation company. It was
created with the merger of SourceHOV LCC, Novitex Holdings, Inc.
and Quinpario Acquisition Corp.
A copy of the Defendants' motion dated May 16, 2023 is available
from PacerMonitor.com at https://bit.ly/3MXyge4 at no extra
charge.[CC]
The Defendants are represented by:
Peter A. Stokes, Esq.
Gerard G. Pecht, Esq.
NORTON ROSE FULBRIGHT US LLP
State Bar No. 15701800
1301 McKinney, Suite 5100
Houston, TX 77010-3095
Telephone: (713) 651-5151
- and -
Ellen B. Sessions, Esq.
2200 Ross Avenue, Suite 3600
Dallas, TX 75201-7921
Telephone: (214) 855-7465
- and -
Peter A. Stokes, Esq.
98 San Jacinto Boulevard, Suite 1100
Austin, TX 78701-4255
Telephone: (512) 474-5201
E-mail: peter.stokes@nortonrosefulbright.com
EXELA TECHNOLOGIES: Must Oppose Shen's Class Cert. Bid by June 2
----------------------------------------------------------------
In the class action lawsuit captioned as BO SHEN, Individually and
On Behalf of All Others Similarly Situated, v. EXELA TECHNOLOGIES,
INC., RONALD COGBURN, JAMES G. REYNOLDS AND PAR CHADHA,Case No.
3:20-cv-00691-D (N.D. Tex.), the Court entered an order granting
the defendants' unopposed motion for extension of time to file
class certification briefing:
-- The deadlines for the Defendants' class certification
opposition
is extended to June 2, 2023, and for the Plaintiff’s reply
brief
to June 30, 2023.
Exela is an American business process automation company.
A copy of the Court's order dated May 16, 2023 is available from
PacerMonitor.com at https://bit.ly/3OJx4wb at no extra charge.[CC]
The Defendants are represented by:
Gerard G. Pecht, Esq.
Ellen B. Sessions
Peter A. Stokes
NORTON ROSE FULBRIGHT US LLP
1301 McKinney, Suite 5100
Houston, TX 77010-3095
Telephone: (713) 651-5151
E-mail: peter.stokes@nortonrosefulbright.com
EXTENDED AT HOME: De Paulino Seeks Home Health Aides' Unpaid Wages
------------------------------------------------------------------
APOLONIA REYES DE PAULINO, both individually and on behalf of all
other similarly situated persons, Plaintiff v. EXTENDED AT HOME
CARE, INC., Defendant, Case No. 1:23-cv-04199 (S.D.N.Y., May 19,
2023) is a Fair Labor Standards Act collective action and a New
York Labor Law class action brought by the Plaintiff to remedy
Defendant's failure to pay for all work hours, failure to pay
overtime wages, failure to pay spread of hours wages, and failure
to provide adequate notice upon hiring and adequate wage statements
to a class of similarly situated persons.
The Plaintiff was employed by Extended At Home Care as a Home
Health Aide from approximately February 26, 2019 to June 2020.
Extended At Home Care is a Home Health Care Agency based in New
York City that provides home care services to patients and their
families.[BN]
The Plaintiff is represented by:
Artemio Guerra, Esq.
HKM EMPOLYMENT ATTORNEYS, LLP
153 Main Street, Suite 201
New Paltz, NY 12561
Telephone: (212) 439-5127
E-mail: aguerra@hkm.com
- and -
Molly Brooks, Esq.
Sabine Jean, Esq.
OUTTEN & GOLDN, LLP
685 Third Avenue, 25th Floor
New York, NY 10017
Telephone: (212) 245-1000
E-mail: mb@outtengolden.com
sjean@outtengolden.com
FASTENAL CO: Bid to Modify Recommendations in Jackson Suit Deferred
-------------------------------------------------------------------
In the case, MIESHIA MARIE JACKSON, et al., Plaintiffs v. FASTENAL
COMPANY, Defendant, Case No. 1:20-cv-00345-JLT-SAB (E.D. Cal.),
Magistrate Judge Stanley A. Boone of the U.S. District Court for
the Eastern District of California defers the parties' joint
stipulation seeking to modify the Magistrate's findings and
recommendations and other relief to the District Judge.
Jackson brings the action on behalf of herself and others similarly
situated against Fastenal, alleging various wage and hour
violations under California state law. On May 31, 2022, the
Plaintiffs filed an unopposed motion for attorneys' fees and costs,
followed by a motion for final approval of class action settlement
on Sept. 9, 2022.
Following the Oct. 13, 2022 hearing on the motions, the Court
issued findings and recommendations to partially-grant the motions
on Oct. 19, 2022. More specifically, it recommended the class
action settlement be approved but with reductions to the attorneys'
fee requests. The deadline to file objections to the findings and
recommendations was Nov. 2, 2022. On Nov. 1, 2022, the Plaintiffs
filed objections to the findings and recommendations, arguing that
the attorneys' fees were reduced in error. The matter has been
submitted and is currently pending before the District Judge.
Currently before the Court is the parties' instant joint
stipulation, filed May 11, 2023, and titled, "Joint Stipulation to
Modify the Magistrate's Findings and Recommendations Recommending
Granting in Part Final Approval of Class Action Settlement Nunc Pro
Tunc and Plaintiff's Agreement to Withdraw Appeal to the District
Court Judge if the Magistrate Signs this Compromise Stipulation and
Order."
As to this stipulation, Judge Boone holds that because the
Plaintiffs' motions for final approval and attorneys' fees are
fully briefed and submitted, with findings and recommendations
pending before the District Judge since November 2022, the instant
stipulation, filed six months after the deadline to file objections
to the findings and recommendations, is untimely. He notes the
parties appear to acknowledge the untimeliness of the filing
themselves, referring to the stip as "nunc pro tunc." More
importantly, however, because the matter is now before the District
Judge for final approval and consideration, it would be
inappropriate for the Court to consider and rule on the instant
stipulation, and to potentially alter its findings and
recommendations, which are likely already being considered by the
District Judge.
Nonetheless, Judge Boone is not unsympathetic to the parties'
concerns about expediently providing the settlement class members
the monetary relief they need; indeed, he notes the parties'
stipulation appears meritorious. To this point, he reminds the
parties that they may yet elect to consent to Magistrate Judge
jurisdiction as to the instant matter or the case in its entirety.
If they so choose to consent to magistrate judge jurisdiction, the
Court will expediently issue a final ruling on the parties' pending
motions for final approval and attorneys' fees, while also taking
the instant stipulation under consideration. Additionally, one of
the district judges has been nominated to the Ninth Circuit and if
that nomination goes through, the Ninth Circuit will be down to one
district judge. Criminal matters must take priority due to
Constitutional requirements.
Accordingly, Judge Boone defers the parties' joint stipulation
seeking to modify the Magistrate's findings and recommendations and
other relief to the District Judge for further consideration in
connection with the parties' motion for final approval, motion for
attorneys' fees, and original objections to the findings and
recommendations -- all of which remain pending before the District
Judge currently. However, if the parties elect to consent to
Magistrate Judge jurisdiction, the Court will forthwith adjudicate
the parties' pending final approval motions, incorporating its
consideration of the parties' May 11, 2023 stipulated request into
any final order.
A full-text copy of the Court's May 12, 2023 Order is available at
https://rb.gy/31vc5 from Leagle.com.
FCA US: Court Narrows Claims in Orozco's Amended Class Complaint
----------------------------------------------------------------
Judge Matthew F. Leitman of the U.S. District Court for the Eastern
District of Michigan, Southern Division, grants in part and denies
in part the Defendant's motion to dismiss the Plaintiffs' amended
class action complaint in the lawsuit entitled DOMINGO OROZCO, et
al., Plaintiffs v. FCA US, LLC, Defendant, Case No. 21-cv-12823
(E.D. Mich.).
On May 8, 2023, the Court held a hearing to hear argument on FCA's
Motion to Dismiss Plaintiffs' Amended Class Action Complaint.
For the reasons explained on the record during that hearing, FCA's
motion is granted in part and denied in part as follows:
1. The Defendant's motion is granted to the extent that it
seeks dismissal of the Plaintiffs' state law consumer fraud
claims in Counts II-XII of the Amended Class Action
Complaint. Those claims are dismissed; and
2. The Defendant's motion is denied to the extent that it
seeks dismissal of the Plaintiffs' unjust enrichment claim
in Count I of the Amended Class Action Complaint.
Count I is the only claim that will proceed in the action. As
further explained on the record, FCA's deadline to file an Answer
to the Amended Class Action Complaint was May 30, 2023.
A full-text copy of the Court's Order Dated May 8, 2023, is
available at https://tinyurl.com/4peyxp5f from Leagle.com.
FIBROGEN INC: Must Produce Slide Presentation to Xu, et al.
-----------------------------------------------------------
In the class action lawsuit captioned as PEIFA XU, et al., v.
FIBROGEN, INC., et al., Case No. 3:21-cv-02623-EMC (N.D. Cal.), the
Hon. Judge Edward M. Chen entered an order granting the Defendants'
motion for reconsideration but denying their motion on the merits.
-- The Defendants waived through their disclosures any privilege
the Presentation may have been afforded, and Rule 502(b) does
not provide them safe harbor because their clawback was
untimely.
-- The Defendants shall produce to the Plaintiffs the
Presentation
within five days of the date of this order.
On February 15, 2023, the parties filed a joint letter regarding a
dispute over privilege. The Plaintiffs sought the production of
PowerPoint slides Bates numbered FGEN-CA0353824 (the
"Presentation"), which Defendants claimed were protected by
attorney-client privilege.
In its March 29 Order, the Court found that Defendants waived any
privilege that may have been afforded to the Presentation when they
produced it to the U.S. Securities and Exchange Commission (SEC).
The Defendants then sought, and the Court granted, leave to file a
motion for reconsideration so that the parties could further brief
whether Defendants were entitled to the safe harbor provided to
some inadvertent disclosures under Federal Rule of Evidence 502(b).
In sum, the Defendants first produced the Presentation to the
Plaintiffs in December 2022 and to the SEC some months prior; were
put on notice of its production on January 26, 2023; began their
investigation on Monday, January 30; failed to put the Plaintiffs
or the SEC on notice of its investigation; and did not claw back
the Presentation from the Defendants until Friday, February 3 and
from the SEC until Monday, February 6. the Defendants did not
promptly take reasonable steps to rectify the Presentation’s
production to the Plaintiffs and the SEC.
On February 15, 2023, the parties filed a joint letter regarding a
dispute over privilege. The Plaintiffs sought the production of
PowerPoint slides Bates numbered FGEN-CA0353824 (the Presentation),
which the Defendants claimed were protected by attorney-client
privilege.
In its March 29 Order, the Court found that the Defendants waived
any privilege that may have been afforded to the Presentation when
they produced it to the U.S. Securities and Exchange Commission
(SEC).
The Plaintiffs filed this lawsuit against FibroGen and other
individual Defendants for allegedly making false and misleading
statements in violation of Section 10(b) of the Securities Exchange
Act of 1934 and SEC Rule 10b-5 promulgated thereunder.
FibroGen is a biopharmaceutical company whose flagship drug,
Roxadustat, is an experimental pill designed to treat anemia in
patients with chronic kidney diseases.
The Plaintiffs allege that the Defendants manipulated safety data
and presented the skewed data to the Food and Drug Administration
(FDA) in the Roxadustat new drug application (NDA).
A copy of the Court's order dated May 15, 2023 is available from
PacerMonitor.com at https://bit.ly/3MUnsNT at no extra charge.[CC]
FIBROGEN INC: Seeks to Seal Portions of Class Cert Opposition
-------------------------------------------------------------
In the class action lawsuit captioned as Xu v. Fibrogen, Inc. et
al., Case No. (Court), the Defendants request that the Court grant
its administrative motion to seal portions of their Opposition to
Lead the Plaintiffs' Motion for Class Certification and Exhibits
3-4 filed in support thereof.
FibroGen is a biopharmaceutical company that discovers, and
develops medicines for the treatment of anemia, cancer, and
fibrotic disease.
A copy of the Defendants' motion dated May 12, 2023, is available
from PacerMonitor.com at https://bit.ly/43k7z8H at no extra
charge.[CC]
The Defendants are represented by:
Patrick E. Gibbs, Esq.
Tijana M. Brien, Esq.
Brett H. De jarnette, Esq.
Zaneta J. Kim, Esq.
Amie l. Simmons, Esq.
Caitlin Munley, Esq.
Alexandra Eber, Esq.
COOLEY LLP
3175 Hanover Street
Palo Alto, CA 94304-1130
Telephone: (650) 843-5000
Facsimile: (650) 849-7400
E-mail: pgibbs@cooley.com
tbrien@cooley.com
bdejarnette@cooley.com
zkim@cooley.com
asimmons@cooley.com
cmunley@cooley.com
aeber@cooley.com
FIRST ADVANTAGE: Wilson Seeks More Time to File Class Cert Reply
----------------------------------------------------------------
In the class action lawsuit captioned as TRYSTON WILSON,
Individually and on Behalf of All Others, v. FIRST ADVANTAGE
BACKGROUND SERVICES CORP., Case No. 5:21-cv-06071-SRB (W.D. Mo.),
the Plaintiff asks the Court to enter an order granting a 45-day
extension of time to file the Plaintiff's Reply in Support of
Motion for Class Certification until June 29, 2023.
On December 2, 2022, the parties filed an Amended Proposed
Scheduling Order in which the Defendant set forth its belief that
additional discovery needed to be conducted before the issue of
class certification could be resolved.
On December 12, 2022, the Court, after having considered the
parties' Joint Proposed Amended Scheduling Order, issued an Order
directing the Plaintiff to file his motion for class certification
on or before March 1, 2023.
The Court also set the Defendant's opposition and the Plaintiff's
reply for March 31, 2023, and April 14, 2023.
On February 28, 2023, the Defendant filed a Consent Motion to
Modify Scheduling Order to Extend All Deadlines by Thirty Days.
The Plaintiff requests a 45-day extension of time to file his
reply.
First Advantage provides detective, guard, and armored car
services.
A copy of the Plaintiff's motion dated May 12, 2023, is available
from PacerMonitor.com at https://bit.ly/3MOgQAE at no extra
charge.[CC]
The Plaintiff is represented by:
Charles Jason Brown, Esq.
Jayson A. Watkins, Esq.
BROWN & WATKINS LLC
301 S. US 169 Hwy
Gower MO 64454
Telephone: (816) 424-1390
Facsimile: (816) 424-1337
E-mail: brown@brownandwatkins.com
watkins@brownandwatkins.com
FLOSPORTS INC: O'Malley Sues Over Automatic Subscription Renewal
----------------------------------------------------------------
DANIEL O'MALLEY, LUCAS YOUNG, and CHARLES BUCKINGHAM, individually
and on behalf of all others similarly situated, Plaintiffs v.
FLOSPORTS, INC., Defendant, Case No. 2023LA000516 (Ill. Cir., 18th
Judicial, Dupage Cty., May 19, 2023) is a class action against the
Defendant for unjust enrichment, conversion, and violations of the
Illinois Consumer Fraud and Deceptive Business Practices Act,
Illinois Uniform Deceptive Trade Practices Act, the Electronic
Funds Transfer Act, New York General Business Law, the Automatic
Renewal Laws, and California's Unfair Competition Law and Consumers
Legal Remedies Act.
This is a putative class action lawsuit against Defendant for
engaging in an illegal "automatic renewal" scheme with respect to
its subscription sports broadcasting and streaming services across
its network sites through its website, https://www.flosports.tv.
Relevant to Plaintiffs' allegations, when customers sign up for an
FloSports Subscription to gain access to a live stream through the
FloSports Website, the Defendant enrolls customers in a program
that automatically renews customers' FS Subscription on a monthly
or yearly basis and results in monthly or yearly charges to
customer's credit card, debit card, or third-party payment account.
In doing so, the Defendant fails to provide the requisite
disclosures and authorizations required to be made to and obtained
from Plaintiff and similarly situated customers, says the suit.
FloSports, Inc. is a Texas-based subscription sports broadcaster
and streaming service provider.[BN]
The Plaintiff is represented by:
J. Dominick Larry, Esq.
NICK LARRY LAW LLC
1720 W. Division St.
Chicago, IL 60622
Telephone: (773) 694-4669
Facsimile: (773) 694-4691
E-mail: nick@nicklarry.law
- and -
L. Timothy Fisher, Esq.
BURSOR & FISHER, P.A.
1990 North California Blvd., Suite 940
Walnut Creek, CA 94596
Telephone: (925) 300-4455
Facsimile: (925) 407-2700
E-mail: ltfisher@bursor.com
- and -
Joseph I. Marchese, Esq.
Alec M. Leslie, Esq.
BURSOR & FISHER, P.A.
New York, NY 10019
Telephone: (646) 837-7150
Facsimile: (212) 989-9163
E-mail: jmarchese@bursor.com
aleslie@bursor.com
- and -
Adrian Gucovschi, Esq.
GUCOVSCHI ROZENSHTEYN, PLLC
630 Fifth Avenue, Suite 2000
New York, NY 10111
Telephone: (212) 884-4230
Facsimile: (212) 884-4230
E-mail: adrian@gr-firm.com
FLYWHEEL ENERGY: Seeks Stay of Sched. Order Deadlines in Flowers
----------------------------------------------------------------
In the class action lawsuit captioned as GARY FLOWERS AND DEBBIE
FLOWERS, Individually and on behalf of all others similarly
situated v. FLYWHEEL ENERGY PRODUCTION, LLC, MERIT ENERGY COMPANY,
LLC, and CAER ENERGY, LLC f/k/a RIVERBEND OIL & GAS VIII, LLC, Case
No. 4:21-cv-00330-LPR (E.D. Ark.), the Defendant asks the Court to
enter an order staying all scheduling order deadlines pending the
Court's decision on the pending Motion for Class Certification.
On March 24, 2023, the Plaintiffs filed their renewed motion for
class certification and brief in support.
On May 5, 2023, the Defendant Flywheel filed its response in
Opposition to the renewed motion for class certification.
On May 9, 2023, the Plaintiffs filed their unopposed motion for
extension of time to file reply brief up to and including June 5,
2023, and the Court granted that notion.
Flywheel is a private exploration and production company formed to
acquire and operate onshore U.S. oil and gas assets.
Flywheel is a private exploration and production company formed to
acquire and operate onshore U.S. oil and gas assets.
A copy of the Defendant's motion dated May 12, 2023, is available
from PacerMonitor.com at https://bit.ly/45rtOf2 at no extra
charge.[CC]
The Defendant is represented by:
G. Alan Perkins, Esq.
M. Christine Dillard, Esq.
Samuel S. McLelland, Esq.
PPGMR Law, PLLC
Little Rock, AR 72203
Telephone: (501) 603-9000
Facsimile: (501) 603-0556
E-mail: alan@ppgmrlaw.com
christine@ppgmrlaw.com
sam@ppgmrlaw.com
FLYWHEEL ENERGY: Seeks Stay of Scheduling Order Deadlines
----------------------------------------------------------
In the class action lawsuit captioned as LARRY W. EUBANKS AND
CAROLYN D. EUBANKS, Individually and on behalf of all others
similarly situated, v. FLYWHEEL ENERGY PRODUCTION, LLC; XTO ENERGY,
INC., Case No. 4:21-cv-00329-LPR (E.D. Ark.), the Defendant asks
the Court to enter an order staying all scheduling order deadlines
pending the Court's decision on the pending Motion for Class
Certification.
On March 24, 2023, the Plaintiffs filed their renewed motion for
class certification and brief in support.
On May 5, 2023, the Defendant Flywheel filed its response in
Opposition to the renewed motion for class certification.
On May 9, 2023, the Plaintiffs filed their unopposed motion for
extension of time to file reply brief up to and including June 5,
2023, and the Court granted that notion.
Flywheel is a private exploration and production company formed to
acquire and operate onshore U.S. oil and gas assets.
Flywheel is a private exploration and production company formed to
acquire and operate onshore U.S. oil and gas assets.
A copy of the Defendant's motion dated May 12, 2023, is available
from PacerMonitor.com at https://bit.ly/3MQuao0 at no extra
charge.[CC]
The Defendant is represented by:
G. Alan Perkins, Esq.
M. Christine Dillard, Esq.
Samuel S. McLelland, Esq.
PPGMR Law, PLLC
Little Rock, AR 72203
Telephone: (501) 603-9000
Facsimile: (501) 603-0556
E-mail: alan@ppgmrlaw.com
christine@ppgmrlaw.com
sam@ppgmrlaw.com
FLYWHEEL ENERGY: Seeks Stay of Scheduling Order Deadlines in Oliger
-------------------------------------------------------------------
In the class action lawsuit captioned as DARRELL OLIGER AND CAROL
OLIGER, CO-TRUSTEES OF THE DARRELL AND CAROL OLIGER REVOCABLE TRUST
DATED JUNE 19, 2007, PULOMA PROPERTIES, LLC, and LGTD INVESTMENTS,
LLC, Individually and on behalf of all others similarly situated,
v. FLYWHEEL ENERGY PRODUCTION, LLC, Case No. 4:20-cv-01146-LPR
(E.D. Ark.), the Defendant asks the Court to enter an order staying
all scheduling order deadlines pending the Court's decision on the
pending Motion for Class Certification.
On March 24, 2023, the Plaintiffs filed their renewed motion for
class certification and brief in support.
On May 5, 2023, the Defendant Flywheel filed its response in
Opposition to the renewed motion for class certification.
On May 9, 2023, the Plaintiffs filed their unopposed motion for
extension of time to file reply brief up to and including June 5,
2023, and the Court granted that notion.
Flywheel is a private exploration and production company formed to
acquire and operate onshore U.S. oil and gas assets.
A copy of the Defendant's motion dated May 12, 2023, is available
from PacerMonitor.com at https://bit.ly/3IyojRP at no extra
charge.[CC]
The Defendant is represented by:
G. Alan Perkins, Esq.
M. Christine Dillard, Esq.
Samuel S. McLelland, Esq.
PPGMR Law, PLLC
Little Rock, AR 72203
Telephone: (501) 603-9000
Facsimile: (501) 603-0556
E-mail: alan@ppgmrlaw.com
christine@ppgmrlaw.com
sam@ppgmrlaw.com
FOTOGRAFISKA FOR LIFE: Young Sues Over Blind-Inaccessible Website
-----------------------------------------------------------------
LESHAWN YOUNG, on behalf of herself and all other persons similarly
situated, Plaintiff v. FOTOGRAFISKA FOR LIFE INC., Defendant, Case
No. 1:23-cv-04122 (S.D.N.Y., May 17, 2023) arises from the
Defendant's failure to design, construct, maintain, and operate its
website, http://www.fotografiska.com/nyc,to be fully accessible
to, and independently usable by, the Plaintiff and other blind or
visually impaired people in violation of the Americans with
Disabilities Act, the New York State Human Rights Law, and the New
York City Human Rights Law.
The Plaintiff alleges that the Defendant engaged in acts of
intentional discrimination due to the inaccessibility of its
website, and seeks a permanent injunction to cause Defendant to
change its corporate policies, practices, and procedures so that
its website will become and remain accessible to blind and visually
impaired consumers.
Fotografiska For Life Inc. operates the Fotografiska museum and
cafe and retail store as well as Fotografiska's website throughout
the United States in the State of New York.[BN]
The Plaintiff is represented by:
Dana L. Gottlieb, Esq.
Michael A. LaBollita, Esq.
Jeffrey M. Gottlieb, Esq.
GOTTLIEB & ASSOCIATES
150 East 18th Street, Suite PHR
New York, NY 10003
Telephone: (212) 228-9795
Facsimile: (212) 982-6284
E-mail: Dana@Gottlieb.legal
Michael@Gottlieb.legal
Jeffrey@Gottlieb.legal
GIVESURANCE INSURANCE: Filing of Class Status Bid Reset to Sept. 18
-------------------------------------------------------------------
In the class action lawsuit captioned as Shank v. Givesurance
Insurance Services, Inc., Case No. 3:19-cv-00136 (S.D. Ohio), the
Hon. Judge Thomas M. Rose entered an order a preliminary pretrial
order as follows:
-- Class Certification Motion deadline Sept. 18,
2023
has been reset for:
-- Any additional deadlines prior to: July 18, 2023
are vacated and may be rescheduled
if necessary at the Telephone Status
Conference.
Givesurance is provider of commercial insurance services intended
to operate as an insurance broker for charities [CC]
GKN DRIVELINE: Bid to Decertify Class and Collective Action OK'd
----------------------------------------------------------------
In the class action lawsuit captioned as JAMES MEBANE and ANGELA
WORSHAM, on behalf of themselves and all others similarly situated,
v. GKN DRIVELINE NORTH AMERICA, INC., Case No.
1:18-cv-00892-LCB-LPA (M.D.N.C.), the Hon. Judge Loretta C. Biggs
entered an order:
1. granting the Defendant's motion to decertify the class and
collective action;
2. denying as moot GKN Driveline's Bid for partial summary
judgment; and
3. denying as moot the Plaintiffs' amended motion for partial
summary judgment.
The Plaintiffs then proposed the following redefinition:
"All Individuals who were, are, or will be employed at the
Defendant GKN's North Carolina facilities on the manufacturing
floor in non-managerial positions, subjected to an automatic
30-
minute meal break deduction, and who have or may have worked
through or during unpaid meal breaks without compensation at
least
once at any time within two years prior to the commencement of
this action, through the present."
The Defendant moves to decertify the Plaintiffs' FLSA collective
action, the Rule 23 Rounding Class, and the Rule 23 Automatic
Deduction Class. The Defendant also moves for partial summary
judgment on the Plaintiffs' collective and class claims related to
the Rounding Class, as well as the Plaintiff James Mebane's
individual claims.
GKN manufactures automotive parts. The Company offers light
vehicles, agricultural and construction equipment, aircraft, and
aero engines.
A copy of the Court's order dated May 12, 2023, is available from
PacerMonitor.com at https://bit.ly/3ICpkbv at no extra charge.[CC]
GLAD PRODUCTS: Filing of Class Certification Bid Due Nov. 16
------------------------------------------------------------
In the class action lawsuit captioned as PATRICK PETERSON, v. THE
GLAD PRODUCTS COMPANY, et al., Case No. 3:23-cv-00491-TSH (N.D.
Cal.), the Hon. Judge Thomas S. Hixson entered a case management
order as follows:
Deadline to Seek Leave to Amend Pleadings Aug. 31, 2023
Deadline to Move for Class Certification Nov. 16, 2023
Deadline to File Opposition to Class Jan. 18, 2024
Certification Motion
Deadline to File Reply in Support of Mar. 21, 2024
Class Certification Motion
Hearing on Class Certification Motion Apr. 18, 2024
Close of Fact Discovery Sept. 5, 2024
Disclosure of Expert Witnesses Oct. 2, 2024
Close of Expert Discovery Dec. 11, 2024
Deadline to File Dispositive Motions Jan. 16, 2025
Hearing on Dispositive Motions Feb. 20, 2025
Exchange of Pretrial Disclosures Apr. 23, 2025
Deadline to File Pretrial Documents May 8, 2025
Deadline to File Oppositions to Motions May 15, 2025
in Limine
Pretrial Conference May 29, 2025
Final Pretrial Conference June 26, 2025
Jury Trial (Duration to be determined) Jul. 7, 2025
Glad is an American company specializing in trash bags and plastic
food storage containers.
A copy of the Court's order dated May 11, 2023 is available from
PacerMonitor.com at https://bit.ly/3IwiOmO at no extra charge.[CC]
GOOGLE LLC: Minahan Appeals Case Dismissal Ruling to 9th Cir.
-------------------------------------------------------------
Plaintiffs Burke Minahan, et al., filed an appeal from the District
Court's Order dated May 1, 2023 entered in the lawsuit entitled
Burke Minahan, individually and on behalf of all others similarly
situated v. Google, LLC, Case No. 3:22-cv-05652, in the United
States District Court for the Northern District of California.
As reported in the Class Action Reporter on Oct. 17, 2022, the
Plaintiff is a consumer of Google's video rental service, Google
Play, which unlawfully retains Plaintiff's video rental history and
personally identifiable information, such as his name, addresses,
and credit card information, in violation of Minnesota law.
According to the complaint, Google stores its consumers' personal
information in violation of the protections established by the
Minnesota legislature. Google does not destroy its consumer's
personal information as soon as practicable. Google does not even
destroy its consumer's personal information within one year from
the date the information is no longer necessary for the purpose for
which it was collected. Indeed, on information and belief, Google
stores its consumer's personal information, including video rental
history, indefinitely. Thus, Google has knowingly retained the
personally identifiable information, including sensitive video
rental histories, of thousands of Minnesota consumers, in violation
of Minnesota, says the complaint.
On March 28, 2023, the Defendant filed a motion to dismiss the case
which the Court granted on May 1, 2023 through an Order entered by
Judge Yvonne Gonzalez Rogers.
The appellate case is captioned as Burke Minahan, et al. v. Google,
LLC, Case No. 23-15775, in the United States Court of Appeals for
the Ninth Circuit, filed on May 22, 2023.
The briefing schedule in the Appellate Case states that:
-- Appellant's Mediation Questionnaire was due on May 30, 2023;
-- Appellant's opening brief and excerpts of record shall be
served and filed on July 17, 2023;
-- Appellee's answering brief and excerpts of record shall be
served and filed on August 16, 2023; and
-- The optional appellant's reply brief shall be filed and
served within 21 days of service of the appellee's brief, pursuant
to Federal Rule of Appellate Procedure 31 and 9th Cir. R. 31-2.1.
Failure of the appellant to comply with the Time Schedule Order
will result in automatic dismissal of the appeal.[BN]
GREGORY SAMPSON: Court Junks Smith Bid to Certify Class
-------------------------------------------------------
In the class action lawsuit captioned as LAWRENCE R. SMITH, v.
Warden GREGORY SAMPSON, et al., Case No. 5:22-cv-00170-MTT-CHW
(M.D. Ga.), the Hon. Judge Marc T. Treadwell entered an order
that:
-- Smith's claim against Commissioner Tyrone Oliver is dismissed
without prejudice.
-- Smith's motion for a temporary restraining order and motion to
certify class are denied.
Therefore, Smith has not alleged facts showing Oliver was
personally involved in his alleged Eighth Amendment violation or
facts demonstrating any causal connection between Oliver and the
violation.
The Plaintiff Lawrence R. Smith, an inmate confined in Phillips
State Prison in Buford, Georgia, filed a civil rights action under
42 U.S.C. section 1983.
Smith alleges that he suffers from seizures and that the shortage
of officers at Central State Prison has resulted in his inability
to receive timely medical care on various occasions when he had a
seizure. Smith claims Commissioner Oliver was deliberately
indifferent to his serious medical needs.
A copy of the Court's order dated May 15, 2023 is available from
PacerMonitor.com at https://bit.ly/3Mwv3ks at no extra charge.[CC]
GUIDEHOUSE LLP: Torrez Sues Over Compliance Analysts' Unpaid OT
---------------------------------------------------------------
MARIA TORREZ, individually and on behalf of all others similarly
situated, Plaintiff v. GUIDEHOUSE, LLP, Defendant, Case No.
1:23-cv-00647 (E.D. Va., May 17, 2023) arises from the Defendant's
conduct of uniformly misclassifying each of the employees,
including Plaintiff, as exempt and pays them a salary with no
overtime compensation in violation of the Fair Labor Standards
Act.
Plaintiff Torrez worked for Guidehouse as a compliance analyst and
investigator analyst from approximately October 2019 until January
2023.
Guidehouse, LLP provides consultancy services. The Company offers
strategy, management, navigation, technology, and risk management
consulting services.[BN]
The Plaintiff is represented by:
Harris D. Butler, Esq.
Craig J. Curwood, Esq.
Zev H. Antell, Esq.
Paul M. Falabella, Esq.
Samantha R. Galina, Esq.
BUTLER CURWOOD, PLC
140 Virginia Street, Suite 302
Richmond, VA 23219
Telephone: (804) 648-4848
Facsimile: (804) 237-0413
E-mail: harris@butlercurwood.com
craig@butlercurwood.com
zev@butlercurwood.com
paul@butlercurwood.com
samantha@butlercurwood.com
- and -
Michael A. Josephson, Esq.
Andrew W. Dunlap, Esq.
JOSEPHSON DUNLAP, LLP
11 Greenway Plaza, Suite 3050
Houston, TX 77046
Telephone: (713) 352-1100
Facsimile: (713) 352-3300
E-mail: mjosephson@mybackwages.com
adunlap@mybackwages.com
- and -
Richard J. (Rex) Burch, Esq.
BRUCKNER BURCH, PLLC
11 Greenway Plaza, Suite 3025
Houston, TX 77046
Telephone: (713) 877-8788
E-mail: rburch@brucknerburch.com
HAWAII: E.R.K. Files Cross Appeal Over Attorney Fees Ruling
-----------------------------------------------------------
E. R. K., by his legal guardian R.K, et al. are taking a cross
appeal from a court order granting in part and denying in part
their request for administrative fees and attorneys' fees in the
lawsuit entitled E. R. K., by his legal guardian R.K., individually
and on behalf of all others similarly situated, Plaintiffs, v.
State of Hawaii Department of Education, Defendant, Case No.
1:10-cv-00436-SOM-RT, in the U.S. District Court for the District
of Hawaii.
As previously reported in the Class Action Reporter, the certified
class action, originally filed in 2010, was filed to address the
denial by the State of Hawaii Department of Education ("DOE") of
services under the Individuals with Disabilities Education Act
("IDEA") to individuals that the DOE viewed as having "aged out" of
being eligible to receive services. Originally assigned to a
different district court judge, the case went to the Ninth Circuit,
which held that the individuals had been prematurely denied
services. On remand, the matter was settled, with the DOE agreeing
to deposit $8.75 million into an interest-bearing bank account
("Services Fund") and to pay the class counsel $1.5 million in
attorneys' fees and costs, an additional $250,000 in attorneys'
fees with court approval, and such other attorneys' fees as class
counsel might request from the court with notice to DOE counsel.
As of July 2022, the Services Fund had a balance of $285,779.15,
with approximately $95,000 in pending disbursements. The DOE
argues, and the Court agrees, that any additional attorneys' fees
must be paid out of the Services Fund because the DOE has no
further obligation under the Settlement Agreement.
On July 1, 2022, the Plaintiffs filed a motion for attorney fees to
seek $238,241.50 in fees. The Plaintiffs' motion divides the
requested fees into 23 "Tasks." When fees are requested as
attorneys' fees but appear administrative in nature, Judge Susan
Oki Mollway does not convert the request to one for administrative
fees. She reasons that the Court has already given the Plaintiffs a
second chance to seek fees. Ultimately, she awarded $2,425.50 for
the administrative work reflected in Category 1 and $140,865.90 in
attorneys' fees for Categories 3 through 23. Nothing was awarded
for Category 2, which involves "write offs" for which the
Plaintiffs are not seeking fees.
In sum, Judge Mollway concluded in her March 28, 2023 ruling that
when she considers the administrative fees sought, her best
estimate is that 30% of those fees are not sufficiently supported.
In reducing the administrative fees by 30%, she is considering not
only the issues with the timesheets identified but also an hourly
rate greater than $25 but less than $50 per hour.
With respect to the attorneys' fees sought, Judge Mollway awarded
60% of the amount sought, concluding that an overall reduction of
40% recognizes issues of concern with the timesheet entries and the
numerous instances in which the Plaintiffs did not show that the
tasks performed needed to be done by attorneys charging attorneys'
hourly rates. She did not reach these percentages lightly.
Judge Mollway said the 60% award recognizes that the Plaintiffs'
counsel has clearly performed commendable work on behalf of
individuals who benefitted from the legal services provided. She
also recognizes that there may well have been efficiencies in
having knowledgeable counsel handle certain matters. But she has to
deal with the submissions in the record support, and many of the
entries were problematic. Moreover, the fees were initially sought
as administrative fees, presumably because of the administrative
nature of much of the work.
For these reasons, Judge Mollway granted in part and denied in part
the Plaintiffs' motion for administrative and attorneys' fees. She
awarded a total of $143,291.40 from the Services Fund.
The appellate case is captioned E. K., et al v. EDU-HI, Case No.
23-15737, in the United States Court of Appeals for the Ninth
Circuit, filed on May 15, 2023.
The briefing schedule in the Appellate Case states that:
-- Appellants R. T. D., Hawai'i Disability Rights Center and E.
R. K. Mediation Questionnaire was due on May 22, 2023;
-- Appellee State of Hawaii Department of Education first cross
appeal brief is due on June 26, 2023;
-- Appellants R. T. D., Hawai'i Disability Rights Center and E.
R. K. second brief on cross appeal is due on July 26, 2023;
-- Appellee State of Hawaii Department of Education third brief
on cross appeal is due on August 28, 2023; and
-- Appellants R. T. D., Hawai'i Disability Rights Center and E.
R. K. optional cross appeal is due 21 days after service of third
brief on cross appeal. [BN]
Plaintiffs-Appellants E. R. K., by his legal guardian R.K., et al.,
individually and on behalf of all others similarly situated, are
represented by:
Janna Wehilani Ahu, Esq.
DENTONS US, LLP
1001 Bishop Street, Suite 1800
Honolulu, HI 96813
Telephone: (808) 441-6181
- and -
Paul D. Alston, Esq.
Erika L. Amatore, Esq.
Richard M. Crum, Esq.
Kristin Liisa Holland, Esq.
DENTONS US, LLP
1001 Bishop Street, Suite 1800
Honolulu, HI 96813
Telephone: (808) 524-1800
Defendant-Appellee STATE OF HAWAII DEPARTMENT OF EDUCATION is
represented by:
Kevin M. Richardson, Esq.
Ryan W. Roylo, Esq.
Carter K. Siu, Esq.
AGHI - OFFICE OF THE ATTORNEY GENERAL HAWAII
235 S. Beretania Street
Honolulu, HI 96813
Telephone: (808) 586-1255
HERTZ GLOBAL: Cascia Sues Directors for Breach of Fiduciary Duties
------------------------------------------------------------------
ANGELO CASCIA, on behalf of himself and all other similarly
situated stockholders, Plaintiff v. COLIN FARMER, JENNIFER FEIKIN,
MARK FIELDS, VINCENT INTRIERI, MICHAEL GREGORY O'HARA, STEPHEN
SCHERR, ANDREW SHANNAHAN, EVANGELINE VOUGESSIS, THOMAS WAGNER,
KNIGHTHEAD CAPITAL MANAGEMENT, LLC, CERTARES OPPORTUNITIES LLC, AND
CK AMARILLO LP, Defendants, and HERTZ GLOBAL HOLDINGS, INC., a
Delaware corporation, Nominal Defendant, Case No. 2023-0520 (Del.
Ch., May 11, 2023) is a verified stockholder class action and
derivative complaint brought by the Plaintiff against Defendants
for breaching their fiduciary duties as directors of Hertz and for
unjust enrichment.
This action arises because the board of directors of Hertz chose to
gift a controlling stake in Hertz to its largest stockholder, CK
Amarillo, without obtaining anything in return for either Hertz
itself or Hertz's now-minority stockholders. Prior to the Board
actions challenged herein, CK Amarillo held approximately 39% of
Hertz's outstanding stock. The Hertz Board -- dominated by
directors appointed by CK Amarillo -- then authorized two separate
stock repurchase programs of $2 billion each, pursuant to which
Hertz quickly repurchased vast amounts of its own stock. As a
result of these buybacks, CK Amarillo's ownership of Hertz has
rocketed to 57%. Hertz is now a controlled company, and neither
Hertz nor its unaffiliated stockholders received any consideration
for the Board's gifting away of a controlling stake in the Company.
Hertz itself admits that CK Amarillo now controls the Company
"solely because of the impact of the company's stock repurchase
program," says the suit.
Allegedly, CK Amarillo has not spent a dime on additional stock to
obtain control of Hertz; instead, it just exploited its dominance
of the Hertz Board to force Hertz itself to bear the cost of
becoming a controlled company. Hertz received nothing in return,
and Hertz's unaffiliated stockholders had no opportunity to avoid
being demoted to minority stockholders. The Plaintiff now brings
this derivative and class action to remedy these brazen breaches of
fiduciary duty.
Hertz Global Holdings, Inc. is an American car rental company based
in Estero, Florida.[BN]
The Plaintiff is represented by:
Peretz Bronstein, Esq.
Eitan Kimelman, Esq.
BRONSTEIN, GEWIRTZ & GROSSMAN LLC
60 E 42nd Street, Suite 4600
New York, NY 10165
Telephone: (212) 697-6484
- and -
Michael J. Barry, Esq.
Christine M. Mackintosh, Esq.
Vivek Upadhya, Esq.
GRANT & EISENHOFER P.A.
123 Justison Street
Wilmington, DE 19801
Telephone: (302) 622-7000
HI.Q INC: Filing for Class Certification Extended to Nov. 2
-----------------------------------------------------------
In the class action lawsuit captioned as TOBY HOY and CONSTANCE
KENNEDY, individually, and on behalf of all others similarly
situated, v. HI.Q, INC. d/b/a HEALTH IQ, Case No.
3:21-cv-04875-TLT (N.D. Cal.), the Hon. Judge Trina L. Thompson
entered a modified case management and scheduling order as
follows:
FINAL PRETRIAL CONFERENCE: March 14, 2024
PLAINTIFF'S DISPOSITIVE MOTIONS: Schedule to be set
after
Court decides Class
Certification Motion
Last day to be heard:
Feb. 16, 2024
PLAINTIFF'S CLASS CERTIFICATION Last day to file
MOTIONS: dispositive motions:
Nov. 2, 2023
Opposition: Nov. 30,
2023
Reply: Dec. 21, 2023
Last day to be heard:
Jan. 9, 2024
DEFENDANT'S DISPOSITIVE MOTIONS: Last day to file
dispositive motions:
Nov. 2, 2023
Opposition: Nov. 30,
2023
Reply: Dec. 21, 2023
Last day to be heard:
Jan. 9, 2024
EXPERT DISCOVERY CUT-OFF: Oct. 11, 2023
FACT DISCOVERY CUT-OFF: Sept. 11, 2023
FURTHER STATUS CONFERENCE: Aug. 17, 2023
Hi.Q, Inc. offers life and health insurance solutions.
A copy of the Court's order dated May 15, 2023 is available from
PacerMonitor.com at https://bit.ly/3q8V3uC at no extra charge.[CC]
HUMANA INC: Filing for Class Certification Bid Due Nov. 6 in Elliot
-------------------------------------------------------------------
In the class action lawsuit captioned as DAVID ELLIOT, v. HUMANA
INC., Case No. 3:22-cv-00329-RGJ-CHL (W.D. Ky.), the Hon. Judge
Colin H. Lindsay entered an order that the Court's October 31,
2022, Scheduling Order is amended as follows:
(1) The parties shall complete all fact Aug. 14, 2023.
discovery no later than:
(2) Identification of experts in
accordance with Rule 26(a)(2)
shall be due no later than:
a. By the Plaintiff: Aug. 21, 2023
b. By the Defendant: no later than Sept 18, 2023
(3) All expert discovery shall be Oct. 23, 2023
completed by:
(4) All Daubert and dispositive motions Dec. 11, 2023.
shall be filed no later than:
(5) The motion for class certification Nov. 6, 2023
shall be filed no later than:
-- Any response shall be filed no Nov. 27, 2023
later than:
-- Reply filed no later than: Dec. 11, 2023
Humana is a for-profit American health insurance company based in
Louisville, Kentucky.
A copy of the Court's order dated May 11, 2023 is available from
PacerMonitor.com at https://bit.ly/3BNU8Cu at no extra charge.[CC]
HUSKY OIL: Appeals Attorneys' Fees Order in Bruzek Suit to 7th Cir.
-------------------------------------------------------------------
HUSKY OIL OPERATIONS, LTD., et al. are taking an appeal from a
court order granting in part and denying in part the Plaintiffs'
motion for attorney fees and reimbursement of expenses in the
lawsuit entitled Jasen Bruzek, et al., individually and on behalf
of all others similarly situated, Plaintiffs, v. Husky Oil
Operations, Ltd., et al., Defendants, Case No. 3:180-cv-00697-wmc,
in the U.S. District Court for the Western District of Wisconsin.
As previously reported in the Class Action Reporter, the Plaintiffs
sued Husky Oil Operations Ltd. and Superior Refining Co. LLC on
behalf of themselves and a class of similarly situated residents
who incurred damages as a result of their evacuation following a
2018 explosion and fire at the Defendants' refinery in Superior,
Wisconsin.
In a previous order, the Court approved a class settlement in which
the Defendants agreed to pay a total of $1.05 million into a class
fund to be divided as follows: (1) $2,000 each to the class
representatives; (2) $169,000 for notice and claims administration;
and (3) the remaining $875,000 in payments to the class members who
submitted a claim. The only issue remaining before the Court is the
Plaintiffs' motion for attorneys' fees and costs.
The Court held an oral argument on the Plaintiffs' fee request on
Jan. 21, 2022.
The class counsel has filed a motion for an award of attorneys'
fees based on the lodestar method: the number of hours reasonably
expended on the litigation multiplied by a reasonable hourly rate.
Specifically, they submitted billing records showing 6,251 hours of
work spent on the case and hourly rates ranging from $350 to $845
for attorneys and $200 to $315 for paralegals, for a total of
$3,151,017.25 in attorney fees and $359,948.97 in costs.
Considering the degree of the counsel's success in achieving a
class settlement, the time spent on unsuccessful claims and
theories, and excessive fees driven by the Defendants' aggressive
tactics, Judge William M. Conley concluded that a reduction of 25%
in fees is appropriate, for a total of $2,363,262.94 in fees and
$359,948.97 in costs. Judge Conley said he is satisfied that the
class counsel's rates are reasonable and adequately supported as
the market rate.
For these reasons, Judge Conley granted in part and denied in part
the class counsel's motion for attorneys' fees and expenses on
April 19, 2023. The Defendants must pay the class counsel
$2,363,262.94 in fees and award actual costs of $359,948.97, for a
total award of $2,723,211.91.
The appellate case is captioned Jasen Bruzek, et al. v. Husky Oil
Operations, Ltd., et al., Case No. 23-1941, in the United States
Court of Appeals for the Seventh Circuit, filed on May 18, 2023.
The briefing schedule in the Appellate Case states that:
-- Transcript information sheet is due on June 1, 2023;
-- Appellants Husky Oil Operations, Ltd. and Superior Refining
Company, LLC docketing statement was due on May 24, 2023; and
-- Appellants Husky Oil Operations, Ltd. and Superior Refining
Company, LLC brief is due on or before June 27, 2023. [BN]
Plaintiffs-Appellees JASEN BRUZEK, individually and on behalf of
all others similarly situated, are represented by:
John Gordon Rudd, Jr., Esq.
ZIMMERMAN REED LLP
1100 IDS Center
80 S. Eighth Street
Minneapolis, MN 55402
Telephone: (612) 341-0400
Defendants-Appellants HUSKY OIL OPERATIONS, LTD., et al. are
represented by:
Colleen M. Kenney, Esq.
SIDLEY AUSTIN LLP
One S. Dearborn Street
Chicago, IL 60603
Telephone: (312) 853-7000
- and -
Joseph L. Olson, Esq.
MICHAEL BEST & FRIEDRICH LLP
790 N. Water Street
Milwaukee, WI 53202
Telephone: (414) 271-6560
ILLINOIS: Amended Smith Complaint v. IDOC Dismissed With Prejudice
------------------------------------------------------------------
In the case, ERIC S. SMITH, Plaintiff v. ANTHONY WILLS, ROB
JEFFREYS, DEPARTMENT OF JUSTICE, and ILLINOIS DEPARTMENT OF
CORRECTIONS, Defendants, Case No. 22-cv-2691-NJR (S.D. Ill.), Judge
Nancy J. Rosenstengel of the U.S. District Court for the Southern
District of Illinois dismisses Smith's Amended Complaint with
prejudice.
Smith, an inmate of the Illinois Department of Corrections ("IDOC")
who is currently incarcerated at Menard Correctional Center, brings
the action for deprivations of his constitutional rights pursuant
to 42 U.S.C. Section 1983. Smith's Complaint, which sought
injunctive relief in the form of a supplemental diet, was dismissed
for failure to state a claim. Smith was granted leave to file an
amended pleading. In the Amended Complaint, Smith alleges the
grievance process is inadequate and unavailable at Menard
Correctional Center.
The case is now before the Court for preliminary review of the
Amended Complaint pursuant to 28 U.S.C. Section 1915A. Under
Section 1915A, the Court is required to screen prisoner complaints
to filter out non-meritorious claims. Any portion of a complaint
that is legally frivolous, malicious, fails to state a claim upon
which relief may be granted, or asks for money damages from a
defendant who by law is immune from such relief must be dismissed.
In his Amended Complaint, Smith makes the following allegations:
Smith purports to raise a class action claim against officials at
Menard Correctional Center for what he describes as an inadequate
grievance process. He alleges that he is required to exhaust his
administrative remedies before filing a lawsuit and because
grievances are "unavailable" his due process rights have been
violated. He alleges he does not have access to grievances because
correctional officers refuse to distribute them, and he is not
allowed to write grievances on regular, loose-leaf paper. Smith
also alleges that when grievances are written and submitted, they
are often lost, destroyed, or misplaced.
Simply put, Smith again fails to state a claim with his Amended
Complaint, Judge Rosenstengel holds. Although his original
Complaint sought to raise a deliberate indifference claim under the
Eighth Amendment for the failure to provide him with additional
food trays, she says Smith appears to have abandoned that claim.
Instead, he seeks to raise a due process claim pursuant to the
Fourteenth Amendment, arguing that Menard's grievance process is
unavailable and thus violates his due process rights. This claim
fails because the Seventh Circuit has clearly rejected any due
process right in a prison's grievance process. Further, Smith fails
to allege any other type of claim related the grievance process.
Accordingly, Smith's Amended Complaint is dismissed. Because it is
his second attempt to file a pleading that states a viable claim
and Smith has again failed to set forth a claim, the dismissal is
with prejudice. The Clerk is directed to close the case and enter
judgment accordingly.
A full-text copy of the Court's May 12, 2023 Memorandum & Order is
available at https://rb.gy/pui23 from Leagle.com.
INDEPENDENT LIVING: Fails to Protect Health Info, Swaim Alleges
---------------------------------------------------------------
MONICA SWAIM, individually and on behalf of all others similarly
situated, Plaintiff v. INDEPENDENT LIVING SYSTEMS, LLC, Defendant,
Case No. 1:23-cv-21837-KMW (S.D. Fla., May 17, 2023) is a class
action against the Defendant for negligence, negligence per se, and
declaratory judgment arising from its failure to safeguard,
monitor, maintain, and protect Plaintiff's highly sensitive
personal health information and personally identifiable
information.
As part of its services, the Defendant collected, stored, and
maintained Plaintiff's and the Class' sensitive information, which
Plaintiff provided to ILS' partners or enrollees Yakan Medical
Associates and Novant Health Gastroenterology. Starting around July
5, 2022, the Defendant experienced a cyberattack during which
criminal hackers obtained access to Plaintiff's and the Class'
sensitive information and Defendant was locked out of certain
computer systems.
Because the data breach compromised Plaintiff's sensitive
information, Plaintiff and others similarly situated patients have
been placed in an immediate and continuing risk of harm from fraud,
identity theft, and related harm caused by the data breach, says
the suit.
Independent Living Systems is a Miami, Florida-based health service
company that develops, delivers, and manages community-based
services.[BN]
The Plaintiff is represented by:
Stuart A. Davidson, Esq.
Alexander A. Cohen, Esq.
Anny Marie Martin, Esq.
ROBBINS GELLER RUDMAN & DOWD LLP
225 NE Mizner Boulevard, Suite 720
Boca Raton, FL 33432
Telephone: (561) 750-3000
Facsimile: (561) 750-3364
E-mail: sdavidson@rgrdlaw.com
- and -
Christopher D. Jennings, Esq.
Tyler B. Ewigleben, Esq.
THE JOHNSON FIRM
610 President Clinton Ave., Suite 300
Little Rock, AR 72201
Telephone: (501) 372-1300
E-mail: chris@yourattorney.com
tyler@yourattorney.com
- and -
Brian C. Gudmundson, Esq.
Rachel K. Tack, Esq.
ZIMMERMAN REED LLP
1100 IDS Center
80 South 8th Street
Minneapolis, MN 55402
Telephone: (612) 341-0400
Facsimile: (612) 341-0844
E-mail: brian.gudmundson@zimmreed.com
rachel.tack@zimmreed.com
JOSEPH BIDEN: Class Certification Briefing Stayed in Van Den Bosch
------------------------------------------------------------------
In the class action lawsuit captioned as GERARD VAN DEN BOSCH, v.
JOSEPH BIDEN, JR., et al., Case No. 1:23-cv-00018 (M.D. Tenn.), the
Hon. Judge William L. Campbell, Jr. entered an order on the
Plaintiff's motions for preliminary injunction and for class
certification.
- The Defendants shall respond to the motion for preliminary
injunction on or before May 17, 2023.
- Briefing on the motion for class certification is stayed until
further ruling by the Court.
A copy of the Court's order dated May 11, 2023 is available from
PacerMonitor.com at https://bit.ly/3IrLo8L at no extra charge.[CC]
JP MORGAN: Bid to Disqualify WilmerHale from Representing Tossed
----------------------------------------------------------------
In the class action lawsuit captioned as JANE DOE 1, Individually
and on Behalf of All Others Similarly Situated, v. JPMORGAN CHASE
BANK, N.A., Case No. 1:22-cv-10019-JSR (S.D.N.Y.), the Hon. Judge
Jed S. Rakof entered an order denying the motion to disqualify
WilmerHale from representing defendant JPMorgan Chase Bank, N.A.
The Court says, "The movants lack standing, and their motion lacks
merit. The Clerk is directed to close entry number 105 on the
docket of this case."
On May 4, 2023, Bradley Edwards, counsel for plaintiff Jane Doe,
moved to disqualify Wilmer, Cutler, Pickering, Hale, and Dorr, LLP
("WilmerHale") from representing defendant JPMorgan Chase Bank,
N.A.
On May 10, 2023, plaintiff Jane Doe joined Mr. Edwards' motion.
After full consideration of the parties' submissions, the Court
hereby denies the motion.
Disqualification of JP Morgan's chosen counsel at this advanced
stage of this complex case would be an extraordinary remedy,
warranted only if the movants could meet a "high standard of
proof."
The movants here claim that WilmerHale should now be disqualified
from representing JP Morgan on two grounds. First, they claim that
WilmerHale is conflicted because the interests of its current
client, JP Morgan, are materially adverse to those of its former
client, ECPAT, and the current case is substantially related to Ms.
Wild's petition for certiorari.
A copy of the Court's order dated May 11, 2023 is available from
PacerMonitor.com at https://bit.ly/3BMBJWE at no extra charge.[CC]
KANSAS CITY: Seeks to File Pfeifer's Declaration Under Seal
-----------------------------------------------------------
In the class action lawsuit captioned as ROBERT R. FINE,
Individually and On Behalf of All Others Similarly Situated, v.
KANSAS CITY LIFE INSURANCE COMPANY, Case No. 2:22-cv-02071-SSS-PD
(C.D. Cal.), the Defendant applies for leave to file under seal the
entirety of the Declaration of Timothy Pfeifer, in support of KCL's
Opposition to the Plaintiff's Motion for Class Certification.
Kansas City Life is a public insurance company established in
1895.
A copy of the Defendant's motion dated May 12, 2023, is available
from PacerMonitor.com at https://bit.ly/3IB5Eoj at no extra
charge.[CC]
The Defendant is represented by:
J. Randolph Evans, Esq.
SQUIRE PATTON BOGGS (US) LLP
1201 W. Peachtree St., Suite 3150
Atlanta, GA 30309
Telephone: (678) 272-3215
Facsimile: (678) 272-3211
E-mail: randy.evans@squirepb.com
- and -
John W. Shaw, Esq.
Lauren Tallent, Esq.
BERKOWITZ OLIVER LLP
2600 Grand Boulevard, Suite 1200
Kansas City, MO 64108
Telephone: (816) 561-7007
Facsimile: (816) 561-1888
E-mail: jshaw@berkowitzoliver.com
ltallent@berkowitzoliver.com
LE SPORTSAC: Murphy Seeks Final Approval of Class Action Settlement
-------------------------------------------------------------------
In the class action lawsuit captioned as ANTHONY HAMMOND MURPHY, on
behalf of himself and all others similarly situated, v. LE
SPORTSAC, INC., Case No. 1:22-cv-00058-RAL (W.D. Pa.), the
Plaintiff asks the Court to enter an order granting final approval
of the parties' Class Action Settlement Agreement.
The Defendant does not oppose the relief sought in the motion.
LeSportsac is an American lifestyle brand of casual nylon bags.
A copy of the Plaintiff's motion dated May 15, 2023 is available
from PacerMonitor.com at https://bit.ly/3Oz1BwI at no extra
charge.[CC]
The Plaintiff is represented by:
Kevin Tucker, Esq.
Kevin J. Abramowicz, Esq.
Chandler Steiger, Esq.
Stephanie Moore, Esq.
EAST END TRIAL GROUP LLC
6901 Lynn Way, Suite 215
Pittsburgh, PA 15208
Telephone: (412) 877-5220
E-mail: ktucker@eastendtrialgroup.com
kabramowicz@eastendtrialgroup.com
csteiger@eastendtrialgroup.com
smoore@eastendtrialgroup.com
- and -
Lawrence H. Fisher, Esq.
LAWFIRST
One Oxford Centre
301 Grant Street, Suite 270
Pittsburgh, PA 15219
Telephone: (412) 577-4040
E-mail: lawfirst@lawrencefisher.com
LEPRINO FOODS: Files Cross-Appeal in Vasquez Labor Suit to 9th Cir.
-------------------------------------------------------------------
Leprino Foods Company filed a cross appeal from a court ruling
entered in the lawsuit entitled ISAIAS VASQUEZ and LINDA HEFKE, on
behalf of all other similarly situated individuals, Plaintiffs v.
LEPRINO FOODS COMPANY, a Colorado Corporation; LEPRINO FOODS DAIRY
PRODUCTS COMPANY, a Colorado Corporation; and DOES 1-50, inclusive,
Defendants, Case No. 1:17-cv-00796-AWI-BAM, in the United States
District Court for the Eastern District of California, Fresno.
The class action lawsuit, brought before the Court pursuant to 28
U.S.C. Section 1332(d)(2), involves an employment dispute between
Plaintiff class representatives Isaias Vasquez and Linda Hefke and
Defendants Leprino Foods Co. and Leprino Foods Dairy Products Co.
On March 30, 2020, the Court certified the Plaintiffs' claim that
the Defendants required their non-exempt workers to remain
"on-call" during their meal and rest breaks in violation of
California law.
As reported in the Class Action Reporter, the Court entered an
Order on Feb. 22, 2023 that (1) the Defendants' motions in limine
are granted in part and denied in part; and (2) the Plaintiffs'
motions in limine are granted in part and denied in part.
On March 29, 2023, Plaintiff class representatives Isaias Vasquez
and Linda Hefke's filed a motion for reconsideration of Plaintiffs'
Trial Brief dated March 16, 2023, which requested that the Court
instruct the jury to disregard Defendant Leprino Foods Company's
representations that there is no evidence of class members being
disciplined for not responding to their supervisors or radios
during breaks. The Plaintiffs' Motion requests that the Court (1)
strike from evidence Leprino's Senior Director of Production Human
Resources & Safety Steven Schmidt's statements about any of the
personnel records he did not personally review for lack of
foundation; (2) issue a curative instruction informing the jury
that Leprino failed to produce and meaningfully review 6,000
disciplinary records of Class Member to determine whether anyone
was disciplined for not responding to a supervisor or radio during
a break; and (3) order immediate production of the some 6,000
records Schmidt mentioned in his testimony.
On April 4, 2023, District Judge Anthony W. Ishii entered an Order
that Plaintiffs' motion for reconsideration of trial brief
regarding curative instruction is granted in part and denied in
part.
On April 7, 2023, judgment was entered in favor of Defendants
against Plaintiffs pursuant to an order signed by Judge Ishii on
April 6, 2023 regarding trial exhibits. The Order states that
pursuant to Local Rule 138(f), the Court orders that custody of all
exhibits used, referenced and/or admitted at trial be returned to
the party who initially marked the exhibit, irrespective of who
used, referenced or admitted the exhibit at trial. The parties
shall retrieve the original exhibits from the Courtroom Deputy
following the verdict in the case. Joint Exhibits will be returned
to Plaintiff unless otherwise agreed to by the parties in writing
or on the record. The parties' counsel shall retain possession of
and keep safe all exhibits until final judgment and all appeals are
exhausted or the time for filing an appeal has passed.
The Plaintiff filed a review of the order in the lawsuit captioned
as Isaias Vasquez, et al. v. Leprino Foods Company, Case No.
23-15721, in the United States Court of Appeals for the Ninth
Circuit, on May 11, 2023.
The Defendant now files this cross-appeal. The appellate case is
titled Isaias Vasquez, et al. v. Leprino Foods Company, Case No.
23-15778, in the United States Court of Appeals for the Ninth
Circuit, filed on May 22, 2023.
The cross-appeal briefing schedule in the Appellate Case states
that:
-- Appellant Leprino Foods Company Mediation Questionnaire was
due on May 30, 2023;
-- First cross appeal brief is due on August 14, 2023 for Linda
Hefke and Isaias Vasquez;
-- Second brief on cross appeal is due on September 13, 2023 for
Leprino Foods Company;
-- Third brief on cross appeal is due on October 13, 2023 for
Linda Hefke and Isaias Vasquez; and
-- Optional cross appeal reply brief is due within 21 days of
service of third brief on cross appeal.[BN]
Defendant-Appellant LEPRINO FOODS COMPANY, a Colorado corporation,
is represented by:
Adam W. Hofmann, Esq.
Winston Hu, Esq.
Lisa M. Pooley, Esq.
Sandra Lynn Rappaport, Esq.
HANSON BRIDGETT, LLP
425 Market Street, 26th Floor
San Francisco, CA 94105
Telephone: (415) 777-3200
Plaintiffs-Appellees ISAIAS VASQUEZ and LINDA HEFKE, on behalf of
all other similarly situated individuals, are represented by:
Ryan Andrew Crist, Esq.
Kitty Szeto, Esq.
PARRIS LAW FIRM
43364 10th Street, W
Lancaster, CA 93534
Telephone: (661) 949-2595
LUCKY2MEDIA LLC: Placeholder Bid for Class Certification Filed
--------------------------------------------------------------
In the class action lawsuit captioned as JAMES BELLANCA and WILLIAM
BRUCE, Ohio citizens, individually and as the representatives of a
class of similarly situated persons, v. LUCKY2MEDIA, LLC d/b/a
GoLookUp, a Delaware limited liability company, Case No.
1:23-cv-00967-CEF (N.D. Ohio), the Plaintiffs file a "placeholder"
bid for class certification to protect against any potential
attempt by Lucky2Media to moot their claims through the tendering
of individual relief.
The Plaintiffs contends that they file this motion to prevent a
"pick-off" of their claims. the Plaintiffs also submit their
accompanying brief in support.
The Plaintiffs propose the following class definition:
"All current and former Ohio residents who are not subscribers
to
GoLookUp's platform and whose name and/or identity are used to
market paid subscriptions for GoLookUp's platform.
A class of persons whose personal identifying information is used
without written consent by GoLookUp to market paid subscriptions
for its online platform is defined by "objective" criteria and thus
"ascertainable."
The Plaintiffs request that following discovery and further
briefing, the Court certify the class, appoint the Plaintiffs as
the class representatives, and appoint their attorneys as class
counsel.
A copy of the Plaintiffs' motion dated May 12, 2023, is available
from PacerMonitor.com at https://bit.ly/3Iz3NjU at no extra
charge.[CC]
The Plaintiffs are represented by:
Ryan M. Kelly, Esq.
ANDERSON + WANCA
3701 W. Algonquin Rd. Ste 500
Rolling Meadows, IL 60008
Telephone: (847) 368-1500
E-mail: rkelly@andersonwanca.com
MDL 2966: Court Certifies Class in Antitrust Suit
-------------------------------------------------
In the class action lawsuit re Xyrem (Sodium Oxybate) Antitrust
Litigation, Case No. 3:20-md-02966-RS (N.D. Cal.), the Hon. Judge
Richard Seeborg entered an order granting the motion for class
certification, except insofar as the Classes attempt to include
Xywav prescriptions.
The following Damages Class is certified pursuant to Rules 23(a)
and 23(b)(3):
"All entities in Arizona, California, Connecticut, District of
Columbia, Florida, Hawaii, Iowa, Kansas, Maine, Maryland,
Michigan,
Minnesota, Mississippi, Missouri, Montana, Nebraska, Nevada, New
Hampshire, New Mexico, New York, North Carolina, North Dakota,
Oregon, Puerto Rico, Rhode Island, South Dakota, Tennessee,
Utah,
Vermont, West Virginia, and Wisconsin that, for consumption by
their members, employees, insureds, participants, or
beneficiaries,
and other than for resale, paid and/or provided reimbursement
for
some or all the purchase price for Xyrem during the time from
January 17, 2017, through and until May 12, 2023."
Excluded from the Health Benefit Plan Payor Class are:
(1) the Defendants and their counsel, parents, subsidiaries, and
affiliates;
(2) Express Scripts Specialty Distribution Services, Inc. and
any
of its counsel, parents, subsidiaries, and affiliates; and
(3) federal and state governmental entities. This exclusion does
not include cities, towns, municipalities, or counties or
carriers for Federal Employee Health Benefit plans.
The following Injunctive Relief Class is certified pursuant to
Rules 23(a) and 23(b)(2):
"All individuals and entities in the United States that, for
consumption by themselves, their families, or their members,
employees, insureds, participants, or beneficiaries, and other
than
for resale, paid and/or provided reimbursement for some or all
the
purchase price for Xyrem during the time from January 17, 2017,
through and until May 12, 2023.
Excluded from the Injunctive Relief Class are
(1) the Defendants and their counsel, officers, directors,
management, employees, parents, subsidiaries, and
affiliates,
(2) Express Scripts Specialty Distribution Services, Inc. and
any
of its counsel, officers, directors, management, employees,
parents, subsidiaries, and affiliates,
(3) federal and state governmental entities. This exclusion does
not include cities, towns, municipalities, counties or
carriers
for Federal Employee Health Benefit plans,
(4) any "single flat co-pay" consumers whose benefit plan
requires
a co-payment that does not vary based on the drug's status
as a
brand or generic, and
(5) all judges assigned to this case and any members of their
immediate families.
The Plaintiffs in this multidistrict litigation have moved for
certification of two classes: a damages class under Federal Rule of
Civil Procedure 23(b)(3), and an injunctive relief class under
Rule 23(b)(2).
A copy of the Court's order dated May 12, 2023, is available from
PacerMonitor.com at https://bit.ly/3MwGvfG at no extra charge.[CC]
MDL 2972: Blackbaud Opposition to Allen Class Cert Bid Due June 9
-----------------------------------------------------------------
In the class action lawsuit captioned as Allen et al v. Blackbaud
Inc., Case No. 3:20-cv-02930 (D.S.C.), the Hon. Judge Joseph F.
Anderson, Jr., entered a corrected amended scheduling order as
follows:
Event Deadline
-- Blackbaud's opposition to class June 9, 2023
Certification:
-- Blackbaud's rebuttal class June 9, 2023
certification expert disclosure:
-- Blackbaud's Daubert Motion on June 9, 2023
Plaintiffs' class certification
Experts:
-- Plaintiffs' deadline to file a Aug. 3, 2023
motion seeking leave to submit
rebuttal expert information with
reply brief:
-- Plaintiffs' response in opposition Sept. 11, 2023
to Blackbaud's Daubert Motions on
Plaintiffs' class certification
Experts:
-- Blackbaud's reply in support of its Oct. 20, 2023
Daubert motion on Plaintiffs' class
certification experts:
-- Plaintiffs' reply in support of their Oct. 20, 2023
motion for class certification:
-- Plaintiffs' Daubert Motions on Oct. 20, 2023
Blackbaud rebuttal class
certification experts:
-- Blackbaud's response in opposition Dec. 18, 2023
to the Plaintiffs' Daubert Motion on
Blackbaud's rebuttal class
certification experts:
-- Plaintiffs' reply in support on Jan. 22, 2024
their Daubert Motions on
Blackbaud's rebuttal class
certification experts:
-- Hearing on class certification: TBD
and Daubert Motions:
The Allen case is consolidated in the Blackbaud, Inc., Customer
Data Breach. The Lead case is Case No. 3:20-mn-02972.
The Plaintiffs in the actions allegedly received data breach
notices from the following organizations: Atrium Health; Bread for
the World; Crystal Stairs; Episcopal High School; Light of Life
Rescue Mission; Planned Parenthood; St. David's Center for Child
and Family Development; University of Wisconsin -- Eau Claire;
WakeMed Foundation; and Manhattan School of Music
The Plaintiffs in the potential tag-along actions allegedly
received notices from Allina Health; Bank Street College of
Education; Children's Hospitals and Clinics of Minnesota; Harvard
College; Inova Health System; KidsQuest Childrenss Museum; Lower
East Side Tenement Museum; Mt. Sinai Health System; Northwest
Memorial Healthcare; Nuvance Health; Planned Parenthood; Stetson
University; Stony Brook University Hospital; and UMass Memorial
Medical Center.
The actions allege that numerous other schools, universities,
healthcare institutions, and non-profit organizations were affected
by the data breach. The Plaintiffs allege that the personal
information compromised by the breach includes user names, email
addresses, dates of birth, phone numbers, social security numbers,
credit card numbers, bank account numbers, financial profiles,
passwords, and health information.
The common factual questions include:
(1) Blackbaud's data security practices and whether the
practices
met industry standards;
(2) how the unauthorized access occurred;
(3) the extent of personal information affected by the breach;
(4) when Blackbaud knew or should have known of the breach;
(5) the investigation into the breach; and
(6) the alleged delay in disclosure of the breach to Blackbaud
clients and affected consumers.
Blackbaud is a cloud computing provider that serves the social good
community—nonprofits, foundations, corporations, education
institutions, healthcare organizations, religious organizations,
and individual change agents.
A copy of the Court's order dated May 12, 2023, is available from
PacerMonitor.com at https://bit.ly/3OxS8FS at no extra charge.[CC]
MDL 2972: Blackbaud Opposition to Arthur Class Cert Bid Due June 9
------------------------------------------------------------------
In the class action lawsuit captioned as Arthur, et al., v.
Blackbaud, Inc., Case No. 3:20-cv-04382 (D.S.C.), the Hon. Judge
Joseph F. Anderson, Jr., entered a corrected amended scheduling
order as follows:
Event Deadline
-- Blackbaud's opposition to class June 9, 2023
Certification:
-- Blackbaud's rebuttal class June 9, 2023
certification expert disclosure:
-- Blackbaud's Daubert Motion on June 9, 2023
Plaintiffs' class certification
Experts:
-- Plaintiffs' deadline to file a Aug. 3, 2023
motion seeking leave to submit
rebuttal expert information with
reply brief:
-- Plaintiffs' response in opposition Sept. 11, 2023
to Blackbaud's Daubert Motions on
Plaintiffs' class certification
Experts:
-- Blackbaud's reply in support of its Oct. 20, 2023
Daubert motion on Plaintiffs' class
certification experts:
-- Plaintiffs' reply in support of their Oct. 20, 2023
motion for class certification:
-- Plaintiffs' Daubert Motions on Oct. 20, 2023
Blackbaud rebuttal class
certification experts:
-- Blackbaud's response in opposition Dec. 18, 2023
to the Plaintiffs' Daubert Motion on
Blackbaud's rebuttal class
certification experts:
-- Plaintiffs' reply in support on Jan. 22, 2024
their Daubert Motions on
Blackbaud's rebuttal class
certification experts:
-- Hearing on class certification: TBD
and Daubert Motions:
The Arthur case is consolidated in the Blackbaud, Inc., Customer
Data Breach. The Lead case is Case No. 3:20-mn-02972.
The Plaintiffs in the actions allegedly received data breach
notices from the following organizations: Atrium Health; Bread for
the World; Crystal Stairs; Episcopal High School; Light of Life
Rescue Mission; Planned Parenthood; St. David's Center for Child
and Family Development; University of Wisconsin -- Eau Claire;
WakeMed Foundation; and Manhattan School of Music.
The Plaintiffs in the potential tag-along actions allegedly
received notices from Allina Health; Bank Street College of
Education; Children's Hospitals and Clinics of Minnesota; Harvard
College; Inova Health System; KidsQuest Childrenss Museum; Lower
East Side Tenement Museum; Mt. Sinai Health System; Northwest
Memorial Healthcare; Nuvance Health; Planned Parenthood; Stetson
University; Stony Brook University Hospital; and UMass Memorial
Medical Center.
The actions allege that numerous other schools, universities,
healthcare institutions, and non-profit organizations were affected
by the data breach. The Plaintiffs allege that the personal
information compromised by the breach includes user names, email
addresses, dates of birth, phone numbers, social security numbers,
credit card numbers, bank account numbers, financial profiles,
passwords, and health information.
The common factual questions include:
(1) Blackbaud's data security practices and whether the
practices
met industry standards;
(2) how the unauthorized access occurred;
(3) the extent of personal information affected by the breach;
(4) when Blackbaud knew or should have known of the breach;
(5) the investigation into the breach; and
(6) the alleged delay in disclosure of the breach to Blackbaud
clients and affected consumers.
Blackbaud is a cloud computing provider that serves the social good
community—nonprofits, foundations, corporations, education
institutions, healthcare organizations, religious organizations,
and individual change agents.
A copy of the Court's order dated May 12, 2023, is available from
PacerMonitor.com at https://bit.ly/3Mme6cg at no extra charge.[CC]
MDL 2972: Blackbaud Opposition to Atwood Class Cert Bid Due June 9
------------------------------------------------------------------
In the class action lawsuit captioned as Atwood v. Blackbaud, Inc.,
Case No. 3:20-cv-04516 (D.S.C.), the Hon. Judge Joseph F. Anderson,
Jr., entered a corrected amended scheduling order as follows:
Event Deadline
-- Blackbaud's opposition to class June 9, 2023
Certification:
-- Blackbaud's rebuttal class June 9, 2023
certification expert disclosure:
-- Blackbaud's Daubert Motion on June 9, 2023
Plaintiffs' class certification
Experts:
-- Plaintiffs' deadline to file a Aug. 3, 2023
motion seeking leave to submit
rebuttal expert information with
reply brief:
-- Plaintiffs' response in opposition Sept. 11, 2023
to Blackbaud's Daubert Motions on
Plaintiffs' class certification
Experts:
-- Blackbaud's reply in support of its Oct. 20, 2023
Daubert motion on Plaintiffs' class
certification experts:
-- Plaintiffs' reply in support of their Oct. 20, 2023
motion for class certification:
-- Plaintiffs' Daubert Motions on Oct. 20, 2023
Blackbaud rebuttal class
certification experts:
-- Blackbaud's response in opposition Dec. 18, 2023
to the Plaintiffs' Daubert Motion on
Blackbaud's rebuttal class
certification experts:
-- Plaintiffs' reply in support on Jan. 22, 2024
their Daubert Motions on
Blackbaud's rebuttal class
certification experts:
-- Hearing on class certification: TBD
and Daubert Motions:
The Atwood case is consolidated in the Blackbaud, Inc., Customer
Data Breach. The Lead case is Case No. 3:20-mn-02972.
The Plaintiffs in the actions allegedly received data breach
notices from the following organizations: Atrium Health; Bread for
the World; Crystal Stairs; Episcopal High School; Light of Life
Rescue Mission; Planned Parenthood; St. David's Center for Child
and Family Development; University of Wisconsin -- Eau Claire;
WakeMed Foundation; and Manhattan School of Music
The Plaintiffs in the potential tag-along actions allegedly
received notices from Allina Health; Bank Street College of
Education; Children's Hospitals and Clinics of Minnesota; Harvard
College; Inova Health System; KidsQuest Childrenss Museum; Lower
East Side Tenement Museum; Mt. Sinai Health System; Northwest
Memorial Healthcare; Nuvance Health; Planned Parenthood; Stetson
University; Stony Brook University Hospital; and UMass Memorial
Medical Center.
The actions allege that numerous other schools, universities,
healthcare institutions, and non-profit organizations were affected
by the data breach. The Plaintiffs allege that the personal
information compromised by the breach includes user names, email
addresses, dates of birth, phone numbers, social security numbers,
credit card numbers, bank account numbers, financial profiles,
passwords, and health information.
The common factual questions include:
(1) Blackbaud's data security practices and whether the
practices
met industry standards;
(2) how the unauthorized access occurred;
(3) the extent of personal information affected by the breach;
(4) when Blackbaud knew or should have known of the breach;
(5) the investigation into the breach; and
(6) the alleged delay in disclosure of the breach to Blackbaud
clients and affected consumers.
Blackbaud is a cloud computing provider that serves the social good
community—nonprofits, foundations, corporations, education
institutions, healthcare organizations, religious organizations,
and individual change agents.
A copy of the Court's order dated May 12, 2023, is available from
PacerMonitor.com at https://bit.ly/3q8vgT6 at no extra charge.[CC]
MDL 2972: Blackbaud Opposition to Bedell Class Cert Bid Due June 9
------------------------------------------------------------------
In the class action lawsuit captioned as Silverman Bedell v.
Blackbaud, Inc., Case No. 3:20-cv-04514 (D.S.C.), the Hon. Judge
Joseph F. Anderson, Jr., entered a corrected amended scheduling
order as follows:
Event Deadline
-- Blackbaud's opposition to class June 9, 2023
Certification:
-- Blackbaud's rebuttal class June 9, 2023
certification expert disclosure:
-- Blackbaud's Daubert Motion on June 9, 2023
Plaintiffs' class certification
Experts:
-- Plaintiffs' deadline to file a Aug. 3, 2023
motion seeking leave to submit
rebuttal expert information with
reply brief:
-- Plaintiffs' response in opposition Sept. 11, 2023
to Blackbaud's Daubert Motions on
Plaintiffs' class certification
Experts:
-- Blackbaud's reply in support of its Oct. 20, 2023
Daubert motion on Plaintiffs' class
certification experts:
-- Plaintiffs' reply in support of their Oct. 20, 2023
motion for class certification:
-- Plaintiffs' Daubert Motions on Oct. 20, 2023
Blackbaud rebuttal class
certification experts:
-- Blackbaud's response in opposition Dec. 18, 2023
to the Plaintiffs' Daubert Motion on
Blackbaud's rebuttal class
certification experts:
-- Plaintiffs' reply in support on Jan. 22, 2024
their Daubert Motions on
Blackbaud's rebuttal class
certification experts:
-- Hearing on class certification: TBD
and Daubert Motions:
The Bedell case is consolidated in the Blackbaud, Inc., Customer
Data Breach. The Lead case is Case No. 3:20-mn-02972.
The Plaintiffs in the actions allegedly received data breach
notices from the following organizations: Atrium Health; Bread for
the World; Crystal Stairs; Episcopal High School; Light of Life
Rescue Mission; Planned Parenthood; St. David's Center for Child
and Family Development; University of Wisconsin -- Eau Claire;
WakeMed Foundation; and Manhattan School of Music.
The Plaintiffs in the potential tag-along actions allegedly
received notices from Allina Health; Bank Street College of
Education; Children's Hospitals and Clinics of Minnesota; Harvard
College; Inova Health System; KidsQuest Childrenss Museum; Lower
East Side Tenement Museum; Mt. Sinai Health System; Northwest
Memorial Healthcare; Nuvance Health; Planned Parenthood; Stetson
University; Stony Brook University Hospital; and UMass Memorial
Medical Center.
The actions allege that numerous other schools, universities,
healthcare institutions, and non-profit organizations were affected
by the data breach. The Plaintiffs allege that the personal
information compromised by the breach includes user names, email
addresses, dates of birth, phone numbers, social security numbers,
credit card numbers, bank account numbers, financial profiles,
passwords, and health information.
The common factual questions include:
(1) Blackbaud's data security practices and whether the
practices
met industry standards;
(2) how the unauthorized access occurred;
(3) the extent of personal information affected by the breach;
(4) when Blackbaud knew or should have known of the breach;
(5) the investigation into the breach; and
(6) the alleged delay in disclosure of the breach to Blackbaud
clients and affected consumers.
Blackbaud is a cloud computing provider that serves the social good
community—nonprofits, foundations, corporations, education
institutions, healthcare organizations, religious organizations,
and individual change agents.
A copy of the Court's order dated May 12, 2023, is available from
PacerMonitor.com at https://bit.ly/3BNM98r at no extra charge.[CC]
MDL 2972: Blackbaud Opposition to Clayton Class Cert Bid Due June 9
-------------------------------------------------------------------
In the class action lawsuit captioned as Clayton, et al., v.
Blackbaud Inc., Case No. 3:21-cv-01058 (D.S.C.), the Hon. Judge
Joseph F. Anderson, Jr., entered a corrected amended scheduling
order as follows:
Event Deadline
-- Blackbaud's opposition to class June 9, 2023
Certification:
-- Blackbaud's rebuttal class June 9, 2023
certification expert disclosure:
-- Blackbaud's Daubert Motion on June 9, 2023
Plaintiffs' class certification
Experts:
-- Plaintiffs' deadline to file a Aug. 3, 2023
motion seeking leave to submit
rebuttal expert information with
reply brief:
-- Plaintiffs' response in opposition Sept. 11, 2023
to Blackbaud's Daubert Motions on
Plaintiffs' class certification
Experts:
-- Blackbaud's reply in support of its Oct. 20, 2023
Daubert motion on Plaintiffs' class
certification experts:
-- Plaintiffs' reply in support of their Oct. 20, 2023
motion for class certification:
-- Plaintiffs' Daubert Motions on Oct. 20, 2023
Blackbaud rebuttal class
certification experts:
-- Blackbaud's response in opposition Dec. 18, 2023
to the Plaintiffs' Daubert Motion on
Blackbaud's rebuttal class
certification experts:
-- Plaintiffs' reply in support on Jan. 22, 2024
their Daubert Motions on
Blackbaud's rebuttal class
certification experts:
-- Hearing on class certification: TBD
and Daubert Motions:
The Clayton case is consolidated in the Blackbaud, Inc., Customer
Data Breach. The Lead case is Case No. 3:20-mn-02972.
The Plaintiffs in the actions allegedly received data breach
notices from the following organizations: Atrium Health; Bread for
the World; Crystal Stairs; Episcopal High School; Light of Life
Rescue Mission; Planned Parenthood; St. David's Center for Child
and Family Development; University of Wisconsin -- Eau Claire;
WakeMed Foundation; and Manhattan School of Music.
The Plaintiffs in the potential tag-along actions allegedly
received notices from Allina Health; Bank Street College of
Education; Children's Hospitals and Clinics of Minnesota; Harvard
College; Inova Health System; KidsQuest Childrenss Museum; Lower
East Side Tenement Museum; Mt. Sinai Health System; Northwest
Memorial Healthcare; Nuvance Health; Planned Parenthood; Stetson
University; Stony Brook University Hospital; and UMass Memorial
Medical Center.
The actions allege that numerous other schools, universities,
healthcare institutions, and non-profit organizations were affected
by the data breach. The Plaintiffs allege that the personal
information compromised by the breach includes user names, email
addresses, dates of birth, phone numbers, social security numbers,
credit card numbers, bank account numbers, financial profiles,
passwords, and health information.
The common factual questions include:
(1) Blackbaud's data security practices and whether the
practices
met industry standards;
(2) how the unauthorized access occurred;
(3) the extent of personal information affected by the breach;
(4) when Blackbaud knew or should have known of the breach;
(5) the investigation into the breach; and
(6) the alleged delay in disclosure of the breach to Blackbaud
clients and affected consumers.
Blackbaud is a cloud computing provider that serves the social good
community—nonprofits, foundations, corporations, education
institutions, healthcare organizations, religious organizations,
and individual change agents.
A copy of the Court's order dated May 12, 2023, is available from
PacerMonitor.com at https://bit.ly/43n1qsm at no extra charge.[CC]
MDL 2972: Blackbaud Opposition to Lofton Class Cert Bid Due June 9
------------------------------------------------------------------
In the class action lawsuit captioned as Lofton v. Blackbaud Inc.,
Case No. 3:20-cv-04510 (D.S.C.), the Hon. Judge Joseph F. Anderson,
Jr., entered a corrected amended scheduling order as follows:
Event Deadline
-- Blackbaud's opposition to class June 9, 2023
Certification:
-- Blackbaud's rebuttal class June 9, 2023
certification expert disclosure:
-- Blackbaud's Daubert Motion on June 9, 2023
Plaintiffs' class certification
Experts:
-- Plaintiffs' deadline to file a Aug. 3, 2023
motion seeking leave to submit
rebuttal expert information with
reply brief:
-- Plaintiffs' response in opposition Sept. 11, 2023
to Blackbaud's Daubert Motions on
Plaintiffs' class certification
Experts:
-- Blackbaud's reply in support of its Oct. 20, 2023
Daubert motion on Plaintiffs' class
certification experts:
-- Plaintiffs' reply in support of their Oct. 20, 2023
motion for class certification:
-- Plaintiffs' Daubert Motions on Oct. 20, 2023
Blackbaud rebuttal class
certification experts:
-- Blackbaud's response in opposition Dec. 18, 2023
to the Plaintiffs' Daubert Motion on
Blackbaud's rebuttal class
certification experts:
-- Plaintiffs' reply in support on Jan. 22, 2024
their Daubert Motions on
Blackbaud's rebuttal class
certification experts:
-- Hearing on class certification: TBD
and Daubert Motions:
The Lofton case is consolidated in the Blackbaud, Inc., Customer
Data Breach. The Lead case is Case No. 3:20-mn-02972.
The Plaintiffs in the actions allegedly received data breach
notices from the following organizations: Atrium Health; Bread for
the World; Crystal Stairs; Episcopal High School; Light of Life
Rescue Mission; Planned Parenthood; St. David's Center for Child
and Family Development; University of Wisconsin -- Eau Claire;
WakeMed Foundation; and Manhattan School of Music.
The Plaintiffs in the potential tag-along actions allegedly
received notices from Allina Health; Bank Street College of
Education; Children's Hospitals and Clinics of Minnesota; Harvard
College; Inova Health System; KidsQuest Childrenss Museum; Lower
East Side Tenement Museum; Mt. Sinai Health System; Northwest
Memorial Healthcare; Nuvance Health; Planned Parenthood; Stetson
University; Stony Brook University Hospital; and UMass Memorial
Medical Center.
The actions allege that numerous other schools, universities,
healthcare institutions, and non-profit organizations were affected
by the data breach. The Plaintiffs allege that the personal
information compromised by the breach includes user names, email
addresses, dates of birth, phone numbers, social security numbers,
credit card numbers, bank account numbers, financial profiles,
passwords, and health information.
The common factual questions include:
(1) Blackbaud's data security practices and whether the
practices
met industry standards;
(2) how the unauthorized access occurred;
(3) the extent of personal information affected by the breach;
(4) when Blackbaud knew or should have known of the breach;
(5) the investigation into the breach; and
(6) the alleged delay in disclosure of the breach to Blackbaud
clients and affected consumers.
Blackbaud is a cloud computing provider that serves the social good
community—nonprofits, foundations, corporations, education
institutions, healthcare organizations, religious organizations,
and individual change agents.
A copy of the Court's order dated May 12, 2023, is available from
PacerMonitor.com at https://bit.ly/3MOirXa at no extra charge.[CC]
MDL 3050: Pfizer's Bid to Dismiss Chantix MDL Due on June 20
------------------------------------------------------------
In the multidistrict litigation styled IN RE: CHANTIX (VARENICLINE)
MARKETING, SALES PRACTICES AND PRODUCTS LIABILITY LITIGATION (NO.
II). This Document Relates to All Actions, Case Nos. 22-MD-3050
(KPF), 22-MC-3050 (KPF) (S.D.N.Y.), Judge Katherine Polk Failla of
the U.S. District Court for the Southern District of New York
directs the Defendant to file its motion to dismiss and supporting
papers by June 20, 2023.
On May 5, 2023, the Plaintiffs filed the Consolidated Master Class
Action Complaint (22-MD-3050, Dkt. #40). The Court adopts the
parties' prior proposal for briefing the Defendant's contemplated
motion to dismiss.
As such, Judge Failla directs the Defendant to file its motion to
dismiss and supporting papers by June 20, 2023; the Plaintiffs will
file their opposition by Aug. 4, 2023; and the Defendant will file
any reply by Aug. 25, 2023.
The parties' opening brief and opposition will not exceed 35 pages,
and the reply will not exceed 15 pages. The parties are directed to
adhere to all other formatting conventions as set forth in the
Court's Individual Rules.
Should the Defendant no longer wish to move to dismiss the
Consolidated Complaint, the Defendant is directed to file a letter
on May 12, 2023.
A full-text copy of the Court's Order dated May 8, 2023, is
available at https://tinyurl.com/4mry9vpb from Leagle.com.
MEHBIZAR INC: Faces Zavada Wage-and-Hour Suit in E.D.N.Y.
---------------------------------------------------------
SALVADOR ZAVADA, for himself and all others similarly situated,
Plaintiff v. MEHBIZAR, INC., d/b/a COLBEH RESTAURANT AND CATERING;
COLBEH, INC., d/b/a COLBEH RESTAURANT AND CATERING; and BENJAMIN
BENYAMINION, Defendants, Case No. 2:23-cv-03682 (E.D.N.Y., May 17,
2023) arises from the Defendants' unlawful labor practices in
violation of the Fair Labor Standards Act and the New York Labor
Law.
Plaintiff Zavada was employed as a cook for the Corporate
Defendants at their restaurant located in Great Neck, New York. He
brings this suit against the Defendants for their failure to pay
minimum wage for all hours worked, failure to pay overtime at a
rate not less than one and one-half times the regular rate of pay
for work performed in excess of 40 hours, failure to pay
spread-of-hours compensation, failure to supply proper wage
statement, and failure to provide wage notice.
Mehbizar, Inc. is an active New York Corporation doing business as
"Colbeh Restaurant and Catering Hall," with its principal place of
business in Great Neck, New York.[BN]
The Plaintiff is represented by:
Naresh M. Gehi, Esq.
GEHI & ASSOCIATES
74-09 37th Avenue, Suite 205
Queens, NY 11372
Telephone: (718) 263-5999
E-mail: court@gehilaw.com
METROPOLITAN OPERA: Faces Class Suit Over Data Privacy Breach
-------------------------------------------------------------
Janon Fisher of New York Daily News reports that the Metropolitan
Opera failed to properly safeguard the credit card numbers and
other personal information of more than 45,000 patrons and
employees compromised in a massive computer hack during 2022, says
a class action lawsuit filed in Manhattan Supreme Court.
Former Met employee Anthony Viti, the lead plaintiff in a class
action lawsuit filed last week, claims that his Social Security
number, his driver's license number, his date of birth and
financial account information were all accessed by hackers.
"For approximately two months, The Met failed to detect an intruder
with access to and possession of The Met's current/former employees
and consumers' data," the suit said. "It took a complete shutdown
of The Met's website and box office for The Met to finally detect
the presence of the intruder."
The hack crippled the cultural institution's computer system for
more than a week, the lawsuit said.
It alleges that The Met failed to install the proper security
measures despite numerous government warnings that it could be a
target for cyberattacks.
Letters submitted to the Maine and Vermont attorneys general by the
opera company's lawyer said that hackers its computer system at
least twice last year.
"Through an investigation conducted by third-party specialists, the
Met learned that an unknown actor gained access to certain of their
systems between September 30, 2022 and December 6, 2022 and
accessed or took certain information from those systems," Stephanie
Basta, the opera's lawyer, wrote in a letter submitted to the Maine
Attorney General on May 3.
She said that information for 45,094 patrons and workers and former
employees was compromised.
In a Dec. 7, 2022 article cited in the lawsuit, The New York Times
reported that hackers infiltrated the servers of the Lincoln Center
venue, shutting down ticket sales for nine days.
"This attack froze everything," Met general manager Peter Gelb told
the newspaper at the time.
Gelb said at the time that the infiltration had disrupted the
electronic payment system for the institution's 3,000 workers.
"The teachable moment of this attack is that if someone wants to
break into your system, it is hard to stop them," the general
manager said.
But the lawsuit notes that Basta reported to Maine authorities that
the breach was discovered on Feb. 21, 2023 -- despite it being
reported in the Times months earlier.
The Met -- the largest performing arts organization in the country
-- offered victims of the attack a year of credit monitoring
service.
That's not enough, according to the lawsuit, which claims the
effects of such a hack could plague its victims for decades to
come.
"The Met's response to the data breach has been woefully
insufficient," the lawsuit charges.
The Met house declined to respond to the claims in the suit, but
said "We strongly believe this case has no merit." [GN]
METROPOLITAN OPERA: Viti Files Suit Over Data Breach
----------------------------------------------------
ANTHONY VITI, on behalf of himself and all others similarly
situated, Plaintiff v. METROPOLITAN OPERA ASSOCIATION, INC.,
Defendant, Case No. 652457/2023 (N.Y. Sup., New York Cty., May 21,
2023) is a class action against the Defendant for negligence,
unjust enrichment, and violations of the New York General Business
Law arising from its failure to implement or maintain adequate
measures to protect Plaintiff's and other current/former employees'
and consumers' personal identifiable information.
In the process of providing tickets, merchandise, and other goods
and services to consumers as well as collecting information from
prospective or current employees, The Met collects a significant
amount of personally identifiable information from current/former
employees and consumers. Unfortunately, for over 45,000 of The
Met's current/former employees and consumers, this PII was
compromised in a significant data breach perpetrated by
cybercriminals, says the suit.
The Met's response to the data breach has been woefully
insufficient: (1) The Met did not disclose the data breach to
current/former employees and consumers and to relevant States'
Attorneys General until May 3, 2023, nearly five months after The
Met first detected the cyberattack on December 6, 2022; (2) The Met
failed to disclose specifics of the cyberattack as well as specific
remedial measures taken to ensure the protection of the PII still
in the Defendant's possession; and (3) The Met has offered victims
only 12 months of identity monitoring services when the impact of
the theft of the PII at-issue typically ripples for many years, if
not decades, the suit alleges.
The Metropolitan Opera, located at the Lincoln Center in the heart
of midtown Manhattan, New York City, New York, is the largest
repertory opera house in the world.[BN]
The Plaintiff is represented by:
Madeline Sheffield, Esq.
Israel David, Esq.
Blake Hunter Yagman, Esq.
ISRAEL DAVID LLC
17 State Street, Suite 4010
New York, NY 10004
Telephone: (212) 739-0622
Facsimile: (212) 739-0628
E-mail: madeline.sheffield@davidllc.com
israel.david@davidllc.com
blake.yagman@davidllc.com
MINNESOTA: Joint Bid on Continued Sealing Filed
-----------------------------------------------
In the class action lawsuit captioned as O'Shea Chairse and Sean
Burgess, on behalf of himself and all others similarly situated, v.
Minnesota Department of Human Services and Jodi Harpstead, in her
official and individual capacity as Commissioner of the Department
of Human Services, Case No. 0:23-cv-00355-ECT-ECW (D. Minn.), the
Parties ask the Court to enter an order granting their joint motion
regarding continued sealing:
Documents have been filed under temporary seal in connection with
the following motion:
-- Defendants' Opposition to Plaintiffs' Motion for Class
Certification
A copy of the Parties' motion dated May 12, 2023, is available from
PacerMonitor.com at https://bit.ly/3opKEu2 at no extra charge.[CC]
The Plaintiffs are represented by:
Zorislav R. Leyderman, Esq.
LAW OFFICE OF
ZORISLAV R. LEYDERMAN
222 South 9th Street, Sute 1600
Minneapolis, MN 55402
Telephone: (612) 876-6626
E-mail: zrl@ZRLlaw.com
- and -
Tim Phillips, Esq.
LAW OFFICE OF TIM PHILLIPS
331 2nd Ave. S., Suite 400, TriTech Center
Minneapolis, MN 55401
Telephone: (612) 470-7179
E-mail: tim@timphillipslaw.com
The Defendants are represented by:
Keith Ellison, Esq.
Scott H. Ikeda, Esq.
Sarah Doktori, Esq.
Aaron Winter, Esq.
Brandon Boese, Esq.
ATTORNEY GENERAL STATE OF MINNESOTA
445 Minnesota Street, Suite 1400
St. Paul, Minnesota 55101-2131
Telephone: (651) 583-6694
E-mail: scott.ikeda@ag.state.mn.us
sarah.doktori@ag.state.mn.us
aaron.winter@ag.state.mn.us
brandon.boese@ag.state.mn.us
MOBILEHELP LLC: Court Defers Ruling on Bid to Dismiss Clotz Suit
----------------------------------------------------------------
In the lawsuit entitled TERRY CLOTZ, individually and on behalf of
all others similarly situated, Plaintiff v. MOBILEHELP, LLC, a
Florida company, Defendant, Case No. 1:22-cv-02059-PAB (N.D. Ohio),
Judge Pamela A. Barker of the U.S. District Court for the Northern
District of Ohio, Eastern Division, defers ruling on MobileHelp's
Motion to Dismiss Complaint and to Compel Arbitration until the
completion of an evidentiary hearing set for Aug. 4, 2023.
On Nov. 15, 2022, Clotz filed a class action Complaint against
MobileHelp that alleged a single violation of 47 U.S.C. Section
227, the Telephone Consumer Protection Act ("TCPA"). In the
Complaint, he asserts that he registered his residential phone
number with the National Do Not Call Registry on Jan. 27, 2018.
Yet, on July 18, 2022, he received a pre-recorded call from
MobileHelp.
Clotz brought his action under Federal Rules of Civil Procedure
23(b)(2) and (3), and he seeks certification of a class of all
persons in the United States, who received a similar pre-recorded
call from MobileHelp in the last four years.
On Jan. 6, 2023, MobileHelp filed the instant Motion to Dismiss
Complaint and to Compel Arbitration. MobileHelp asserts that Clotz
visited two websites where he consented to being contacted by
MobileHelp (and others) via pre-recorded phone calls. It also
asserts that Clotz agreed on those sites to arbitrate the present
case. In support of these assertions, MobileHelp appended the
Declaration of Joseph Barreca and the Declaration of Troy Oldroyd.
Barreca is the president of Shift44, the company that owns and
operates the website www.unclaimed-moneysearch.com. Troy Oldroyd is
a director of product development for Digital Media Solutions,
which owns and operates money.advanceplatinum.com.
Barreca avers that on Feb. 5, 2021, Clotz visited
www.unclaimed-moneysearch.com. According to Barreca, Clotz entered
his name and phone number on the site and checked a box that
indicated, "By checking this box I agree to the Privacy Policy,
Terms & Conditions, and to receive relevant, daily email from
UnclaimedMoneySearch and Fortifynance."
MobileHelp was listed as one of the "Marketing Partners." Near the
check box was a link to the "Terms & Conditions." Clicking on that
link would have opened another tab or window with those terms and
conditions.
According to Oldroyd, on July 15, 2021, Clotz visited another
website named money.advanceplatinum.com. Oldroyd claims that Clotz
entered his name, zip code, email, phone number, and date of birth.
Clotz purportedly clicked a box marked "Get Approved!" with a
disclaimer that provided, "By checking this box, I agree to:
Privacy Policy and Terms of Service from Advance Platinum and
CreditCardCommittee." Near this box was a similar link that would
take the user to this site's terms and conditions, which had an
identical governing law and arbitration provision as
www.unclaimed-moneysearch.com.
On Feb. 2, 2023, Clotz filed an Opposition to MobileHelp's Motion
to Dismiss Complaint and to Compel Arbitration. He attached a
document titled "Affidavit of Terry Clotz" to his Opposition. The
purported affidavit was not notarized and did not include all the
language for an unsworn declaration as required by 28 U.S.C.
Section 1746.
On Feb. 24, 2023, MobileHelp filed a Reply in support of its
Motion, challenging, in part, the validity of Clotz's affidavit. On
April 26, 2023, the Court issued an Order permitting Clotz to file
a surreply limited to addressing the validity of his purported
affidavit. On May 3, 2023, he filed a surreply with a second,
notarized affidavit attached. In the second affidavit, Clotz avers
that he never visited the websites www.unclaimed-moneysearch.com
and money.advanceplatinum.com.
The Court finds that Clotz's second affidavit is valid. The second
affidavit is identical to the first except that it adds the
statement "the foregoing is true and correct," and it is notarized.
Therefore, Judge Barker holds that the second affidavit qualifies
both as a conventional affidavit and as an unsworn declaration
under 28 U.S.C. Section 1746(2).
The standards of Rule 56 of the Federal Rules of Civil Procedure
govern whether a court should hold a trial under Section 4 when a
party alleges that no contract exists. Because MobileHelp is the
party asserting the arbitration agreement's existence, under Rule
56 it has the initial burden "to produce evidence that would allow
a reasonable jury to find that a contract exists," Judge Barker
opines, citing Chaudhri v. StockX, LLC (In re StockX Customer Data
Sec. Breach Litig.), 19 F.4th 873, 881 (6th Cir. 2021).
Judge Barker explains that the contract in this case is known as a
"clickwrap" agreement as it requires the user to manifest assent to
the terms by clicking on an icon. Here, Clotz purportedly checked a
box on both websites indicating he agreed to the site's terms and
conditions, which included the arbitration agreement.
Texas courts also recognize the validity of clickwrap agreements.
Additionally, Texas courts recognize the validity of such
agreements even in circumstances where the user must click a
hyperlink to open the terms and conditions.
The declarations of Barreca and Oldroyd establish that a user
purporting to be Clotz accessed both the subject websites, entered
Clotz's personal information on the sites, and clicked buttons to
indicate assent to each site's terms and conditions, which
contained the arbitration agreement. Accordingly, the Court
concludes that, whether it applies Ohio or Texas law, MobileHelp
has met its initial burden of producing evidence that a contract
exists.
The Court concludes that whether it applies Ohio or Texas law,
MobileHelp has met its initial burden of producing evidence that it
is a third-party beneficiary because the contracts explicitly
listed MobileHelp as a "Marketing Partner" and intended beneficiary
of the contracts.
In his affidavit, Clotz denies ever visiting the two websites in
question. By denying that he ever visited the websites at all, he
is, in effect, flatly denying that he ever clicked the boxes and
assented to the terms and conditions. He is also, in effect, flatly
denying that he clicked the hyperlinks on the websites that would
have taken him to the terms and conditions that contained the
arbitration clause.
The Court disagrees with MobileHelp that Boykin, 3 F.4th 832, and
StockX, 19 F.4th 873, support its argument that Clotz has failed to
put the contract "in issue" (Boykin v. Family Dollar Stores of
Mich., LLC, 3 F.4th 832, 836 (6th Cir. 2021); Chaudhri v. StockX,
LLC (In re StockX Customer Data Sec. Breach Litig.), 19 F.4th 873,
881 (6th Cir. 2021)).
The Court finds that Clotz has put the formation of the contract
"in issue," which entitles him to targeted discovery and a trial on
the question.
For the reasons set forth, the Court defers ruling on MobileHelp's
Motion to Dismiss Complaint and to Compel Arbitration until the
completion of an evidentiary hearing set for 9 a.m. on Aug. 4,
2023. Before the evidentiary hearing, the parties may conduct
limited discovery that is narrowly tailored to the question of
whether Clotz assented to the at-issue clickwrap agreements found
on www.unclaimed-moneysearch.com and money.advancedplatinum.com.
All discovery will be completed by July 7, 2023.
A full-text copy of the Court's Memorandum Opinion and Order dated
May 8, 2023, is available at https://tinyurl.com/47dthnvf from
Leagle.com.
MTS NY PROPCO: Swartz Files ADA Suit Over Architectural Barriers
----------------------------------------------------------------
HELEN SWARTZ, individually, on her behalf and on behalf of all
other individuals similarly situated, Plaintiff v. MTS NY PROPCO,
LP, a Delaware Limited Partnership, and HIGHGATE HOTELS, LP, a
Delaware Limited Partnership, Defendants, Case No. 1:23-cv-04167
(S.D.N.Y., May 19, 2023) is a class action brought by the Plaintiff
for injunctive relief and attorney's fees, litigation expenses, and
costs pursuant to the Americans with Disabilities Act for damages
pursuant to N.Y. Exec. Law Section and New York Civil Rights Law.
Plaintiff Swartz is a Florida resident, is sui juris, and qualifies
as an individual with disabilities as defined by the ADA. Ms.
Swartz has multiple sclerosis, is mobility impaired, and uses an
electric scooter to ambulate.
According to the complaint, the Plaintiff encountered architectural
barriers during her stay at the Defendants' property, The Manhattan
at Times Square Hotel, which impaired her use of the facilities and
the amenities offered, and have endangered her safety at the
facilities and her ability to access the facilities and use the
restrooms. The Defendants have discriminated against the individual
Plaintiff and others similarly situated by denying them access to,
and full and equal enjoyment of, the goods, services, facilities,
privileges, advantages and/or accommodations of the buildings, says
the suit.
MTS NY PROPCO, LP owns and operates The Manhattan at Times Square
Hotel located in New York.[BN]
The Plaintiff is represented by:
Lawrence A. Fuller, Esq.
FULLER, FULLER & ASSOCIATES, P.A.
6000 Island Blvd. Suite 1107
Aventura, FL 33180
Telephone: (305) 793-3760
E-mail: lawrencefullerfuller@gmail.com
- and -
Brandon A. Rotbart, Esq.
LAW OFFICE OF BRANDON A. ROTBART, P.A.
11098 Biscayne Blvd., Suite 401-18
Miami, FL 33161
Telephone: (305) 350-7400
E-mail: rotbart@rotbartlaw.com
MURAD LLC: N.D. New York Narrows Claims in DeCoursey Consumer Suit
------------------------------------------------------------------
In the case, JESSICA DECOURSEY and GRACE SIT, on behalf of
themselves and a class of all others similarly situated, Plaintiffs
v. MURAD, LLC, Defendant, Case No. 3:22-cv-353 (AMN/ML) (N.D.N.Y.),
Judge Anne M. Nardacci of the U.S. District Court for the Northern
District of New York grants in part and denies in part the
Defendant's motion to dismiss.
Plaintiffs DeCoursey and Sit bring the proposed class action under
28 U.S.C. Section 1332(d) against the Defendant Murad, seeking
compensatory and other monetary relief, injunctive, declaratory,
and other equitable relief, and costs and attorneys' fees. In the
Complaint, the Plaintiffs assert six causes of action on behalf of
consumers who purchased at least one of the Defendant's cosmetic
products (the "Affected Murad Products") containing color additives
which are alleged to be unsafe for use in the eye area (the "Unsafe
Color Additives"), as follows: (1) breach of implied warranty on
behalf of a Nationwide Class (Count I); (2) violation of New York
General Business Law ("GBL") Section 349 on behalf of a New York
Subclass (Count II); (3) violation of GBL Section 350 on behalf of
the New York Subclass (Count III); (4) violation of the Missouri
Merchandising Practices Act ("MMPA") on behalf of a Missouri
Subclass (Count IV); (5) negligence - failure to warn, on behalf of
the Nationwide Class (Count V)6; and (6) unjust enrichment on
behalf of the Nationwide Class (Count VI).
The Defendant is a Delaware company with its principal place of
business in El Segundo, California. The proposed classes are
comprised of consumers who purchased at least one of the Affected
Murad Products, each of which contain at least one color additive
that the FDA has prohibited in cosmetics intended for use in the
eye area.
The Plaintiffs allege that the Defendant designs, formulates,
manufactures, markets, advertises, distributes, and sells the
Affected Murad Products both directly, and through authorized
sellers, to consumers throughout the United States. They also
allege that the Defendant knew or should have known of the dangers
of using the Affected Murad Products in the eye area, and despite
this, directed consumers through its advertising, marketing, and
instructional videos, to use each of the Affected Murad Products in
the eye area.
The Plaintiffs allege that the Defendant could have either
"produced the Affected Murad products without the unsafe color
additives" or included a "prominent and conspicuous" safety warning
alerting consumers that the products should not be used in the eye
area. They further allege that had they and the putative class
members known these products were unsafe for use in the eye area,
they would have either not purchased the products or paid
substantially less for them.
The Defendant has moved to dismiss certain of the claims in the
Complaint under (1) Fed. R. Civ. P. 12(b)(2) for lack of personal
jurisdiction; (2) Fed. R. Civ. P. 12(b)(6) for failure to state a
claim; and (3) Fed. R. Civ. P. 12(b)(1) for lack of standing to
seek injunctive relief. The Plaintiffs opposed the Defendant's
motion to dismiss and submitted Declarations in support of their
Opposition. The Defendant replied.
The Defendant argues that (1) Sit's claims and DeCoursey's claims
regarding her purchases of the Affected Murad Products in
Pennsylvania must be dismissed for lack of personal jurisdiction,
and the absent class members' claims regarding their purchases of
the Affected Murad Products outside of New York should be dismissed
for lack of personal jurisdiction; (2) the Plaintiffs fail to state
a claim for breach of implied warranty because the Plaintiffs do
not allege privity of contract with Murad; (3) DeCoursey's GBL
claims are deficient because she alleges a "deception as an injury"
theory and has not adequately alleged a "price premium" theory; (4)
the Plaintiffs fail to allege an affirmative misrepresentation,
except as to Murad's Retinol Youth Eye Serum, on any of the product
labels or disclosures or that they viewed and/or relied on the
Defendant's website, video, or other marketing materials directing
customers to use the Affected Murad Products in the eye area; (5)
the Plaintiffs' unjust enrichment claim must be dismissed as
duplicative; and (6) the Plaintiffs lack standing to seek
injunctive relief because they do not allege a likelihood of future
harm.
Judge Nardacci holds that (i) the Plaintiffs have not alleged that
the Defendant is incorporated or has its principal place of
business in New York, so the Court does not have general
jurisdiction over it; (ii) New York's long-arm statute does not
apply to grant the Court personal jurisdiction over the Defendant
as to Sit's claims and DeCoursey's claims as to her purchases in
Pennsylvania; (iii) Bristol-Myers does not apply to unnamed
putative class members in federal class action; and (iv) the
Plaintiffs' implied warranty claim (Count I) must be dismissed for
failure to state a claim because the allegations are insufficient
to show that Plaintiffs are the intended beneficiaries of any
agreements between Defendant and its retailers.
Moreover, Judge Nardacci holds that (i) DeCoursey has sufficiently
alleged an injury under GBL Sections 349 & 350 in the Complaint;
(ii) she denies the Defendant's motion to dismiss DeCoursey's GBL
Section 349 claim to the extent it is based on a failure to warn or
omission; (iii) the Defendant's motion to dismiss the Plaintiffs'
unjust enrichment claim (Count VI) is granted because the
Plaintiffs have failed to demonstrate that their unjust enrichment
claim is not based on the same allegations as their claims of
violations of GBL Sections 349 & 350; (iv) the Defendant's motion
to dismiss the Plaintiffs' GBL Sections 349 and 350 claims to the
extent they relate to products other than the Retinol Youth Eye
Serum, is denied; and (vi) the Plaintiffs have sufficiently alleged
future injury and therefore have standing to seek injunctive
relief.
Accordingly, Judge Nardacci grants in part and denies in part the
Defendant's motion to dismiss. She grants the Defendant's motion to
dismiss for lack of personal jurisdiction as it pertains to Sit and
the Missouri Subclass and DeCoursey's claims as to purchases she
made in Pennsylvania. She denies as it pertains to the nationwide
class.
Judge Nardacci dismisses the following claims:
(a) Breach of implied warranty (Count I);
(b) Violation of the Missouri Merchandising Practices Act
(Count IV);
(c) Negligence — failure to warn (Count V); and
(d) Unjust enrichment (Count VI).
The following claims survive:
(a) Violation of New York General Business Law (GBL) Section
349 (Count II); and
(b) Violation of GBL Section 350 (Count III).
Judge Nardacci also denies the Defendant's motion to dismiss the
Plaintiffs' request for injunctive relief.
The Clerk serve a copy of the Order on the parties in accordance
with the Local Rules.
A full-text copy of the Court's May 16, 2023 Memorandum-Decision &
Order is available at https://rb.gy/ysovs from Leagle.com.
Mark S. Reich -- mreich@zlk.com -- Courtney E. Maccarone, (admitted
pro hac vice), Gary I. Ishimoto, (admitted pro hac vice), LEVI &
KORSINSKY, LLP, New York, NY, Attorneys for the Plaintiffs.
Michael Duvall -- michael.duvall@dentons.com -- New York, NY.
Grant J. Ankrom -- grant.ankrom@dentons.com -- (admitted pro hac
vice) Michael E. Harriss -- michael.harriss@dentons.com --
(admitted pro hac vice), DENTONS US LLP, St. Louis, MO, Attorneys
for the Defendant.
NASHVILLE BOOTING: Ladd Bid to Certify Class Partly OK'd
---------------------------------------------------------
In the class action lawsuit captioned as ANTHONY LADD et al., v.
NASHVILLE BOOTING, LLC, Case No. 3:20-cv-00626 (Court), the Hon.
Judge Eli Richardson entered an order granting in part and denying
in part the Plaintiffs' motion to certify the class.
Specifically, the motion is granted insofar as the Plaintiffs
request certification for claims seeking economic and punitive
damages. The motion is denied insofar as the Plaintiffs request
certification for claims seeking noneconomic damages (i.e.,
inconvenience damages).
The Court certifies, respectively, the following class and claims:
"All persons who had a vehicle in their possession immobilized
by
Nashville Booting LLC in Nashville for longer than one hour
after
requesting removal of the immobilization device, from July 20,
2017
until June 17, 2022, but excluding the claims of non-named
parties
arising before December 1, 2018 (for whom Nashville Booting does
not have any records)."
The Plaintiffs' negligent bailment claim, conversion claim, and
trespass-to-chattel claim.
However, consistent with the Court's specification of the claims to
which certification has been granted, the Motion is denied to the
extent that the Plaintiffs seek certification to pursue
inconvenience damages for any of their certified claims.
Also, pursuant to Fed. R. Civ. P. 23(c)(1)(B), the Court appoints
Anthony Ladd and Nicholas Brindle as class representatives and
Kotchen & Low LLP as class counsel.
Nashville Booting is a parking enforcement company in Nashville
providing free parking enforcement services for their clients.
A copy of the Court's order dated May 11, 2023 is available from
PacerMonitor.com at https://bit.ly/3WrZ2P6 at no extra charge.[CC]
NASHVILLE CENTER: Suit Seeks to Certify Physical Therapist Class
----------------------------------------------------------------
In the class action lawsuit captioned as WARREN HAMMEL and BRIAN
BLOOMFIELD, on behalf of themselves and all others similarly
situated, v. NASHVILLE CENTER FOR REHABILITATION AND HEALING, LLC,
Case No. 3:22-cv-01011 (M.D. Tenn.), the Plaintiffs ask the Court
to enter an order pursuant to 29 U.S.C. section 216(b) of the Fair
Labor Standards Act ("FLSA"), conditionally certifying a putative
collective class defined as:
"All current and former hourly-paid physical therapists,
occupational therapists, speech therapists and therapist
assistants
who worked at the Nashville Center for Rehabilitation and
Healing,
LLC, at any time since May 15, 2020."
The Plaintiffs also request that the Court enter an order:
-- requiring the Defendant to provide the Plaintiffs' counsel
with
the names, last known home addresses, email addresses, cell
phone
numbers and telephone numbers of all putative Collective Class
Members within 14 days of the Court's order granting
conditional
certification;
-- approving the contents of the Plaintiffs' proposed Notice,
Consent Form, Text Message and Reminder Notices (Exhibits
4-6);
-- directing the Plaintiffs' counsel to issue the Plaintiffs'
proposed Notice and Consent Form to all putative Collective
Class
Members by mail, email and text message;
-- requiring the Defendant to internally post the Plaintiffs'
proposed Notice and Consent Form prominently at the
Defendant’s
office during the entire 90-day opt-in period;
-- requiring the Defendant to enclose the Notice and Consent Form
with the next regularly scheduled paycheck for putative
Collective Class Members who are currently working for the
Defendant;
-- directing the Plaintiffs' counsel to issue the proposed
Reminder
Notices to all putative Collective Class Members who have not
opted in the lawsuit or otherwise responded during the first
45
days of the 90-day opt-in period by mail, email and text
message;
-- directing the Defendant to enclose the Reminder Notice with
the
next regularly scheduled paycheck for putative Collective
Class
Members who are currently working for the Defendant and who
have
not opted in the lawsuit or otherwise responded during the
first
45 days of the 90-day opt-in period; and
-- tolling the statute of limitations with respect to the FLSA
claims of the putative Collective Class Members from May 15,
2023, to the close of the period during which the putative
Collective Class Members may join this action.
Nashville Center is a senior living community.
A copy of the Plaintiffs' motion dated May 15, 2023 is available
from PacerMonitor.com at https://bit.ly/3q7VZPO at no extra
charge.[CC]
The Plaintiffs are represented by:
Martin D. Holmes, Esq.
Autumn L. Gentry, Esq.
DICKINSON WRIGHT PLLC
424 Church Street, Suite 800
Nashville, TN 37219
Telephone: (615) 244-6538
Facsimile (844) 670-6009
E-mail: mdholmes@dickinsonwright.com
agentry@dickinsonwright.com
NATIONAL SPINE: Scoma Bid for Summary Judgment Partly OK'd
----------------------------------------------------------
In the class action lawsuit captioned as SCOMA CHIROPRACTIC, P.A.,
a Florida corporation, individually and as the representative of a
class of similarly-situated persons, v. NATIONAL SPINE AND PAIN
CENTERS, LLC, a Delaware limited liability company, SPINE CENTER OF
FL, LLC, and PAIN MANAGEMENT CONSULTANTS OF SOUTHWEST FLORIDA,
P.L., Florida limited liability companies, Case No.
2:20-cv-00430-JLB-NPM (M.D. Fla.), the Hon. Judge John L.
Badalamenti entered an order granting in part and denying in part.
Scoma's motion for summary judgment.
Specifically, Scoma's motion for summary judgment is granted as to
the April 2, 2020, and the June 9, 2020, faxes but denied as to the
April 16, 2020, and April 21, 2020, faxes.
Scoma brings this case against the Defendants alleging violations
of the Telephone Consumer Protection Act of 1991, as amended by the
Junk Fax Prevention Act of 2005 (the TCPA).
Scoma is a chiropractic office in Cape Coral, Florida, which is
owned and operated by Dr. Louis Scoma.
A copy of the Court's order dated May 11, 2023 is available from
PacerMonitor.com at https://bit.ly/3BKgmoD at no extra charge.[CC]
NATIXIS INVESTMENT: Courts Allows Waldner Bid for Class Status
--------------------------------------------------------------
In the class action lawsuit captioned as BRIAN WALDNER,
individually and as the representative of a class of similarly
situated persons, and on behalf of the 401(k) Savings and
Retirement Plan, Sponsored by Natixis Investment Managers, L.P., v.
NATIXIS INVESTMENT MANAGERS, L.P., NATIXIS INVESTMENT MANAGERS,
L.P. RETIREMENT COMMITTEE, Case No. 1:21-cv-10273-LTS (D. Mass.),
the Hon. Judge Leo T. Sorokin entered an order:
-- allowing the motion for class certification.
-- The case is referred to Judge Levenson for resolution of the
pending discovery motion, full pretrial management, and
Reports
and Recommendations on any dispositive motions.
Natixis offers investment solutions from high-conviction,
high-active-share investment managers for institutions and
professional investors.
A copy of the Court's order dated May 15, 2023 is available from
PacerMonitor.com at https://bit.ly/3MUNbFL at no extra charge.[CC]
NAVIENT SOLUTIONS: Appeals Class Certification Order in Homaidan
----------------------------------------------------------------
NAVIENT SOLUTIONS, LLC, et al. are taking an appeal from a court
order granting in part the Plaintiffs' motion for class
certification in the lawsuit entitled Hilal K. Homaidan,
individually and on behalf of all others similarly situated,
Plaintiff, v. Navient Solutions, LLC, et al., Defendants, Case No.
1:17-ap-1085, in the U.S. District Court for the Eastern District
of New York.
On June 23, 2017, Mr. Homaidan commenced this adversary proceeding
as a putative class action, on behalf of himself and others
similarly situated, by filing a complaint against SLM Corp., Sallie
Mae, Inc., Navient Solutions, LLC, and Navient Credit Finance Corp.
As to himself, Mr. Homaidan seeks a determination that certain
debts that he incurred as a student are not nondischargeable
student loan debts under Bankruptcy Code Section 523(a)(8)(B), and
an award of damages, including attorneys' fees and costs, for
Navient's willful violations of the bankruptcy discharge order
entered in his case. And as to the class, he seeks the same
relief.
Thereafter, on Oct. 21, 2019, Mr. Homaidan filed an amended
complaint to add Reeham Youssef as a named plaintiff and proposed
class representative. On Dec. 18, 2019, the Court entered an Order
permitting amendment of the complaint to add Ms. Youssef as a named
plaintiff and a proposed class representative.
The Plaintiffs, on behalf of themselves and all others similarly
situated (the "Putative Class Members"), seek a declaratory
judgment, injunctive relief, and damages arising from Sallie Mae.
Inc. and Navient's alleged "pattern and practice" of violating the
discharge injunction provided by Bankruptcy Code Section 542(a)(2).
They allege that for the last 10 years, the Defendants have engaged
in a massive effort to defraud student debtors and to subvert the
orderly working of the bankruptcy courts.
The Plaintiffs seek to maintain the action on behalf of themselves
and as representatives of Putative Class Members who: obtained
private Tuition Answer loans in amounts that exceeded the Cost of
Attendance; were never issued or designated to be issued 1098-E tax
forms to deduct the interest payments from their federal tax
returns; have never reaffirmed any pre-petition Tuition Answer
loan; and have nonetheless been subjected to Defendants' attempts
to induce payment on discharged debts and have or have not repaid
these loans since bankruptcy.
The Plaintiffs assert that the action and the proposed class
satisfy the prerequisites of numerosity, commonality, typicality,
adequacy of representation, and the requirement of ascertainability
necessary for class certification under Rule 23(a).
The Plaintiffs also seek certification of a damages class under
Rule 23(b)(3). Certification of a damages class under Rule 23(b)(3)
is allowed where common questions predominate over individual
questions, and the class action vehicle is superior to other
possible methods of "fairly and efficiently adjudicating the
controversy." The second subject for the Court's consideration in
determining whether a Rule 23(b)(3) damages class should be
certified is whether "a class action is superior to other available
methods for fairly and efficiently adjudicating the controversy.
Judge Elizabeth Stong granted in part the Plaintiffs' Motion for
Class Certification. She certified a class under Federal Rule of
Civil Procedure 23(b)(2) for declaratory and injunctive relief, and
a class under Federal Rule of Civil Procedure Rule 23(b)(3) for
damages.
The appellate case is captioned Hilal K. Homaidan, et al. v.
Navient Solutions, LLC, et al., Case No. 1:23-cv-03652-BMC, in the
U.S. District Court for the Eastern District of New York, filed on
May 16, 2023. [BN]
Plaintiffs-Appellees HILAL K. HOMAIDAN, et al., individually and on
behalf of all others similarly situated, are represented by:
George F. Carpinello, Esq.
Adam Shaw, Esq.
Robert C. Tietjen, Esq.
BOIES SCHILLER FLEXNER LLP
20 S. Pearl Street, 11th Floor
Albany, NY 12207
Telephone: (518) 434-0600
E-mail: gcarpinello@bsfllp.com
ashaw@bsfllp.com
rtietjen@bsfllp.com
- and -
Lynn E. Swanson, Esq.
JONES, SWANSON, HUDDELL & GARRISON, LLC
601 Poydras Street, Suite 2655
New Orleans, LA 70130
Telephone: (504) 523-2500
E-mail: lswanson@jonesswanson.com
- and -
Jason W. Burge, Esq.
Kathryn J. Johnson, Esq.
FISHMAN HAYGOOD, LLP
201 St. Charles Ave., Ste. 4600
New Orleans, LA 70170
Telephone: (504) 556-5515
Facsimile: (504) 586-5250
E-mail: jburge@fishmanhaygood.com
kjohnson@fishmanhaygood.com
Defendants-Appellants NAVIENT SOLUTIONS, LLC, et al. are
represented by:
Shawn R. Fox, Esq.
MCGUIREWOODS LLP
1251 Avenue of the Americas, 20th Floor
New York, NY 10020
Telephone: (212) 548-2100
E-mail: sfox@mcguirewoods.com
- and -
Thomas M. Farrell, Esq.
MCGUIREWOODS LLP
845 Texas Avenue, Suite 2400
Houston, TX 77002
Telephone: (713) 571-9191
E-mail: tfarrell@mcguirewoods.com
- and -
Dion W. Hayes, Esq.
K. Elizabeth Sieg, Esq.
MCGUIREWOODS LLP
800 East Canal Street
Richmond, VA 23219
Telephone: (804) 775-1000
E-mail: dhayes@mcguirewoods.com
bsieg@mcguirewoods.com
NEW HAMPSHIRE: Commissioner's Bid to Dismiss Suit Tossed
--------------------------------------------------------
In the class action lawsuit captioned as John Doe, et al. v.
Commissioner, New Hampshire Department of Health and Human
Services, Case No. 1:18-cv-01039-LM (D.N.H.), the Hon. Judge Landya
B. McCafferty entered an order denying the Plaintiffs' motion to
hold in abeyance.
The Plaintiffs' motion to supplement is granted in part and denied
in part as provided in this order. The Commissioner's motion to
dismiss is denied.
The Plaintiffs are granted leave to supplement the First Amended
Complaint to add H.M. and J.S. as plaintiffs, to add David King,
Administrative Judge of the New Hampshire Circuit Court, as a
defendant, and to add the proposed allegations to Count I.
The Plaintiffs are not granted leave to supplement to add Counts II
and III or the Disability Subclass.
Rhe Plaintiffs shall file a Second Amended Complaint with the
supplementation that is allowed in this order but without the
allegations related to the disability claims in Counts II and III.
The Second Amended Complaint shall also delete the individual
plaintiffs' claims against the hospitals that have been voluntarily
dismissed.
As proposed, they allege that the Commissioner and Judge King
regard the representatives and the Disability Subclass as having a
mental impairment, based on the IEA certification, and that they
have discriminated and continue to discriminate against the
representatives and the Disability Subclass by not providing
in-person or videoconference hearings.
The Disability Subclass seeks declaratory and injunctive relief.
The Commissioner contends that the addition of the new proposed
claims under the ADA and the Rehabilitation Act are prejudicial
because they would require the case to restart to address the new
issues raised in those claims. The court agrees that the ADA and
Rehabilitation Act claims necessarily focus on new facts and legal
issues that are separate from the due process issues that have been
in the case from the beginning.
A copy of the Court's order dated May 12, 2023, is available from
PacerMonitor.com at https://bit.ly/3BMcrrH at no extra charge.[CC]
NEW HAMPSHIRE: Fitzmorris Files Renewed Bid for Class Certification
-------------------------------------------------------------------
In the class action lawsuit captioned as EMILY FITZMORRIS, ET AL.,
v. NEW HAMPSHIRE DEPARTMENT OF HEALTH AND HUMAN SERVICES,
COMMISSIONER, LORI WEAVER, ET AL., Case No. 1:21-cv-00025-PB
(D.N.H.), the Plaintiffs move the Court to certify the case as a
class action pursuant to Fed. R. Civ. P. 23(a) and 23(b)(2) on the
following grounds:
1. The Plaintiffs are participants in New Hampshire's Choices
for
Independence (CFI) Medicaid Waiver program who are at serious
risk of unjustified institutionalization as a result of the
Defendants’ policies and practices that govern how the CFI
Waiver program is administered.
2. Specifically, the members of the class are at risk of losing
their integration rights because of the following New
Hampshire
Department of Health and Human Services policies and
practices:
-- First, NHDHHS delegates authority to case management
agencies
without effective oversight or support of those agencies.
-- Second, NHDHHS maintains a practice of neither tracking
nor
remediating the service gaps experienced by CFI Waiver
participants.
-- Third, NHDHHS maintains a practice of refusing to notify
CFI
Waiver participants in writing of their ability to request
a
fair hearing (through the NHDHHS Administrative Appeals
Unit)
to challenge service gaps. This practice remains fully
actionable as a discriminatory "method of administration"
of
the CFI program.
-- And fourth, NHDHHS's practice is to maintain an inadequate
CFI Waiver provider network -- a network without the
capacity
to meet the assessed needs of the CFI Waiver participants.
The Plaintiffs move to certify a Plaintiff class in this action:
"CFI Waiver participants who, during the pendency of this
lawsuit,
have been placed at serious risk of unjustified
institutionalization because the Defendants, by act or omission,
fail to ensure that the CFI participants receive the community-
based long term care services and supports through the waiver
program for which they have been found eligible and assessed to
need."
New Hampshire Department of Health and Human Services (DHHS) is
responsible for the health, safety and well-being of the citizens
of New Hampshire.
A copy of the Plaintiffs' motion dated May 15, 2023 is available
from PacerMonitor.com at https://bit.ly/45wvrbi at no extra
charge.[CC]
The Plaintiffs are represented by:
Cheryl S. Steinberg, Esq.
Kay E. Drought, Esq.
NEW HAMPSHIRE LEGAL ASSISTANCE
117 N. State Street
Concord, NH 03301
Telephone: (603) 206-2210
E-mail: csteinberg@nhla.org
kdrought@nhla.org
- and -
Jennifer Eber, Esq.
Mia Fry, Esq.
DISABILITY RIGHTS CENTER
NEW HAMPSHIRE
64 North Main Street, Suite 2
Concord, NH 03301
Telephone: (603) 228-0432
Facsimile: (603) 225-2077
E-mail: jennifere@drcnh.org
miaf@drcnh.org
- and -
Kierstan E. Schultz, Esq.
W. Daniel Deane, Esq.
Mark Tyler Knights, Esq.
Tammy Nguyen, Esq.
NIXON PEABODY LLP
900 Elm Street, 14th Floor
Mobile: 412-303-0648
E-mail: kschultz@nixonpeabody.com
ddeane@nixonpeabody.com
mknights@nixonpeabody.com
tpnguyen@nixonpeabody.com
- and -
Kelly Bagby, Esq.
Maame Gyamfi, Esq.
Stefan Shaibani, Esq.
AARP FOUNDATION
601 E Street NW
Washington, DC 20049
Telephone: (202) 434-2103
Facsimile: (202) 434-6622
Mobile: 301-906-2402
E-mail: kbagby@aarp.org
mgyamfi@aarp.org
sshaibani@aarp.org
NEW HAMPSHIRE: Suit Seeks to Seal Exhibits in Class Cert Bid
------------------------------------------------------------
In the class action lawsuit captioned as EMILY FITZMORRIS, ET AL.,
v. NEW HAMPSHIRE DEPARTMENT OF HEALTH AND HUMAN SERVICES,
COMMISSIONER, LORI WEAVER, ET AL., Case No. 1:21-cv-00025-PB
(D.N.H.), the Plaintiffs asks the Court to enter an order to seal
Exhibit A, Exhibit Q, Exhibit R, Exhibit S, and Exhibit T to the
Plaintiffs' Renewed Motion for Class Certification, as well as the
paragraph of their Memorandum referencing Exhibits Q-T, until
further order of the Court.
The Plaintiffs and the Defendants filed a Joint Motion for
Protective Order on August 24, 2021. On August 24, 2021, the Court
granted the parties’ Joint Motion for Protective Order.
New Hampshire Department of Health and Human Services (DHHS) is
responsible for the health, safety and well-being of the citizens
of New Hampshire.
A copy of the Plaintiffs' motion dated May 15, 2023 is available
from PacerMonitor.com at https://bit.ly/3MAd1xp at no extra
charge.[CC]
The Plaintiff is represented by:
Cheryl S. Steinberg, Esq.
Kay E. Drought, Esq.
NEW HAMPSHIRE LEGAL ASSISTANCE
117 N. State Street
Concord, NH 03301
Telephone: (603) 206-2210
E-mail: csteinberg@nhla.org
kdrought@nhla.org
- and -
Jennifer Eber, Esq.
Mia Fry, Esq.
DISABILITY RIGHTS CENTER
NEW HAMPSHIRE
64 North Main Street, Suite 2
Concord, NH 03301
Telephone: (603) 228-0432
Facsimile: (603) 225-2077
E-mail: jennifere@drcnh.org
miaf@drcnh.org
- and -
Kierstan E. Schultz, Esq.
W. Daniel Deane, Esq.
Mark Tyler Knights, Esq.
Tammy Nguyen, Esq.
NIXON PEABODY LLP
900 Elm Street, 14th Floor
Mobile: 412-303-0648
E-mail: kschultz@nixonpeabody.com
ddeane@nixonpeabody.com
mknights@nixonpeabody.com
tpnguyen@nixonpeabody.com
- and -
Kelly Bagby, Esq.
Maame Gyamfi, Esq.
Stefan Shaibani, Esq.
AARP FOUNDATION
601 E Street NW
Washington, DC 20049
Telephone: (202) 434-2103
Facsimile: (202) 434-6622
Mobile: 301-906-2402
E-mail: kbagby@aarp.org
mgyamfi@aarp.org
sshaibani@aarp.org
NEW YORK, NY: Court Lifts Stay of Sumpter Suit
----------------------------------------------
In the class action lawsuit captioned as JOHNINE SUMPTER, v. NEW
YORK CITY HEALTH AND CORPORATIONS CORPORATION d/b/a NYC HEALTH +
HOSPITALS, et al, Case No. 1:22-cv-08176-PGG-BCM (S.D.N.Y.), the
Hon. Judge Barbara Moses entered an order regarding class
certification consolidated proceedings as follows:
-- By order dated February 16, 2023, the actions were
consolidated,
and The Tandym Group, LLC (Tandym), previously a defendant
only
in Case No. 22-CV-469, was granted leave to intervene in Case
No.
22-CV-8176. Both cases are now assigned to the Hon. Paul G.
Gardephe, United States District Judge, and the undersigned
Magistrate Judge, and both are referred to the Magistrate
Judge
for general pretrial management, including scheduling,
discovery,
non-dispositive pretrial motions, and settlement, pursuant to
28
U.S.C. section 636(b)(1)(A).
-- All pretrial motions and applications, including those related
to
scheduling and discovery (but excluding motions to dismiss or
for
judgment on the pleadings, for injunctive relief, for summary
judgment, or for class certification under Fed. R. Civ. P. 23)
must be made to Judge Moses and in compliance with this
Court's
Individual Practices in Civil Cases, available on the Court's
website at https://nysd.uscourts.gov/hon-barbara-moses.
-- The Stay of No. 22-CV-469 is Lifted by order dated July 13,
2022,
Case No. 22-CV-469 was stayed. The stay is lifted. However,
Defendants' obligation to answer or otherwise respond to the
complaint is extended until 14 days after the Court has ruled
on
defendants' motions to compel arbitration, discussed below.
NYC Health is a municipal health care delivery system.
A copy of the Court's order dated May 12, 2023, is available from
PacerMonitor.com at https://bit.ly/431gPz0 at no extra charge.[CC]
NORTHROP GRUMMAN: 7th Cir. Affirms Summary Judgment in Carlson Suit
-------------------------------------------------------------------
In the lawsuit styled ALAN K. CARLSON and PETER DELUCA, on behalf
of a class, Plaintiffs-Appellants v. NORTHROP GRUMMAN SEVERANCE
PLAN and NORTHROP GRUMMAN CORPORATION, Defendants-Appellees, Case
No. 22-1764 (7th Cir.), the United States Court of Appeals for the
Seventh Circuit affirms the grant of summary judgment in the
Defendants' favor.
Northrop Grumman laid off some workers in 2012 and did not provide
severance benefits to all of them. The firm's Severance Plan ("the
Plan") provides that a laid-off employee regularly scheduled to
work at least 20 hours a week will receive severance benefits if
that employee "received a cover memo, signed by a Vice President of
Human Resources (or his/her designee), with this document addressed
to you individually by name." Another part of the Plan confirms
this requirement.
Plaintiffs Alan Carlson and Peter DeLuca, who did not receive such
a document (which the parties call the "HR Memo"), filed this suit
contending that the Employee Retirement Income Security Act
(ERISA), 29 U.S.C. Sections 1001-1461, entitles them to severance
benefits anyway.
As the Plaintiffs see things, their eligibility is established by
the fact that they regularly worked more than 20 hours a week. They
depict the HR Memo as a ministerial document that verifies
eligibility under the 20-hour standard. Northrop Grumman and the
Plan, by contrast, depict the HR Memo as the means by which
management decides which employees deserve severance pay--or
perhaps which employees the firm can afford to pay.
The district court granted summary judgment in the Defendants'
favor, ruling that the Plan's language gives the HR Department
discretion to choose who, if anyone, gets severance pay on being
laid off. The judge added that ERISA does not prevent a severance
plan (a form of welfare-benefit plan in ERISA's terminology) from
possessing and exercising discretion to determine recipients.
The Plaintiffs and the Defendants agreed to have a magistrate judge
resolve the case under 28 U.S.C. Section 636(c). But once the suit
was certified as a class action (on behalf of all laid-off
employees, who did not receive a HR Memo), and the stakes
multiplied, Northrop Grumman asked the district judge to resume
control. The judge obliged.
Circuit Judge Frank H. Easterbrook, writing for the Panel, notes
that assignment to a magistrate judge depends on a district judge's
consent, and the statute allows the judge to rescind that
assignment. He found that the increased stakes constituted "good
cause" for withdrawing the reference. The Plaintiffs say that this
cannot be so, given the holding of decisions, such as Williams v.
General Electric Capital Auto Lease, Inc., 159 F.3d 266 (7th Cir.
1998), that magistrate judges may preside over class actions if the
representative plaintiffs (and all defendants) have consented.
The Plaintiffs also rely on Lorenz v. Valley Forge Insurance Co.,
815 F.2d 1095 (7th Cir. 1987), which held that the amendment of the
complaint to add a demand for substantial punitive damages did not
allow the defendant to withdraw consent to decision by a magistrate
judge.
Judge Easterbrook finds that neither Williams nor Lorenz addresses
the meaning of "good cause" under Section 636(c)(4). Indeed,
neither decision cites Section 636(c)(4). Williams holds that
magistrate judges may resolve class actions, with the required
consent provided by the representative parties. Lorenz holds that
an increase in the stakes does not allow a litigant to revoke
consent unilaterally. What a district judge may do under Section
636(c)(4) is a different matter.
The merits of the Plaintiffs' claim do not require extended
discussion, Judge Easterbrook says. The Plan makes the receipt of
severance benefits contingent on receipt of a HR Memo, which the
Plaintiffs and the other class members did not get. Welfare-benefit
plans under ERISA--unlike retirement plans--need not provide for
vesting, and the terms of welfare-benefit plans are entirely in the
control of the entities that establish them, Judge Easterbrook
explains. When making design decisions, employers may act in their
own interests.
The Plaintiffs tell the Court of Appeals that, until October 2011,
Northrop Grumman provided a HR Memo to every laid-off employee, who
had worked enough hours. Northrop Grumman denies this, but like the
district judge the Panel cannot see why it matters. A person
possessing discretion may change the way that discretion is
exercised. Judge Easterbrook opines that so even if Northrop
Grumman had announced the universal-severance-benefits norm that
the Plaintiffs believe it had until October 2011, this would not
prevent it from changing that approach.
Similarly, the fact that Northrop Grumman may have awarded benefits
(such as continuing health care) to some laid-off employees, who
lacked a HR Memo, shows only that the firm may have made a mistake;
it does not create a legal entitlement to have the mistake extended
to other kinds of benefits, Judge Easterbrook opines. Likewise with
the fact that some clerical employees may have treated the 20-hour
threshold as sufficient for benefits and entered that error in a
corporate database.
Even the distribution of a written summary plan description that
bluntly tells workers that they have certain benefits missing from
the full plan does not prevent the sponsor from enforcing the
plan's terms, Judge Easterbrook explains, citing CIGNA Corp. v.
Amara, 563 U.S. 421 (2011). The plan itself--not deliberate past
practice, not mistaken past practice, and not mistaken efforts to
describe the benefits in writing--always controls.
The Plaintiffs describe Northrop Grumman's conduct as
"interference" with their rights, in violation of 29 U.S.C. Section
1140. That begs the question, however, Judge Easterbrook says.
Because the Plan grants discretion to the Vice President of Human
Resources, the exercise of that discretion cannot be understood as
interference with any rights under the statute or Plan, Judge
Easterbrook explains.
This aspect of the Plaintiffs' argument effectively asks the Court
of Appeals to treat the HR Department as their fiduciary, Judge
Easterbrook notes. It isn't. The Plan's administrator is their
fiduciary but did not make any of the decisions of which the
Plaintiffs complain.
Affirmed.
A full-text copy of the Court's Opinion dated May 8, 2023, is
available at https://tinyurl.com/54mmtff7 from Leagle.com.
NUWEST GROUP: Court OK's Entry of Protective Order in Hamilton Suit
-------------------------------------------------------------------
In the class action lawsuit captioned as ANGELA HAMILTON and
MATTHEW HOGAN, individually and on behalf of all others similarly
situated, v. NUWEST GROUP HOLDINGS, LLC, Case No. 2:22-cv-01117-RSM
(W.D. Wash.), the Hon. Judge Ricardo S. Martinez entered an order
granting the Plaintiffs' motion for entry of protective order and
order to participate in a Rule 26(f) Conference.
The Court will enter the proposed Model Stipulated Protective Order
after the Plaintiffs submit a word version to the Court's orders
inbox for signature. The Court further orders the parties to confer
under Rule 26(f) within 10 days of this Order unless the parties
can agree on a later mutually agreeable date.
The Court finds that the proposed Model Stipulated Protective Order
is satisfactory and it will be entered. The Court further finds
that there is no reason to delay discovery on this record and will
order the parties to engage in a Rule 26(f) conference immediately.
This Court routinely orders discovery to proceed while a class
certification motion is pending, and the Defendant has provided no
valid justification for staying discovery here. If there is an
issue as to the scope of discovery it can be raise in a motion for
protective order, assuming the parties cannot resolve the issue
outside of Court.
Nuwest is a full-service recruitment firm specializing in job
placement in Healthcare, Technology, Engineering, Manufacturing &
Scientific in the Greater Seattle Area.
A copy of the Court's order dated May 15, 2023 is available from
PacerMonitor.com at https://bit.ly/3BSJvht at no extra charge.[CC]
O'REILLY AUTOMOTIVE: Court Dismisses Barrett ERISA Class Suit
-------------------------------------------------------------
Remy Samuels of Plansponsor reports that a U.S. District Court
judge dismissed an ERISA class action lawsuit, Barrett et al. v.
O'Reilly Automotive Inc. et al., brought by former employees,
alleging that the company breached fiduciary duties by allowing
participants of its 401(k) retirement plan to pay excessive
recordkeeping and investment management fees.
Following oral argument on May 23, U.S. District Judge Brian C.
Wimes orally granted the defendants' motion to dismiss and denied
the plaintiffs' informal request to file a further amended
complaint.
New York-based law firm Skadden, Arps, Slate, Meagher & Flom LLP
representing the auto parts company secured the dismissal of the
class action complaint brought under the Employee Retirement Income
Security Act in the U.S. District Court for the Western District of
Missouri.
The court held the complaint that the plaintiffs failed to plead
"meaningful benchmarks" for their excessive fee allegations, and
therefore did not satisfy the Eighth Circuit's pleading standard
for an ERISA breach of fiduciary duty claims.
In addition, the judge held that because the plaintiffs had a
chance to amend the complaint after the defendants' first motion to
dismiss, they should not be allowed another opportunity to amend.
A 12(b)(6) dismissal – given on the grounds that the plaintiffs
failed to state a complaint for which relief can be granted—is
rare in ERISA law, where courts typically find that dismissal
arguments are too factual.
As a large plan with assets between $1.1 billion and $1.2 billion,
the original complaint, filed in May 2022 against O'Reilly's board
of directors and 401(k) plan investment committee, stated that the
employer had substantial bargaining power regarding the fees and
expenses that were charged against participants' investments.
The plan had 53,561 participants as of 2020.
The complaint alleged that the employer "did not try to reduce the
plan's expenses or exercise appropriate judgement to scrutinize
each investment option that was offered in the plan to ensure it
was prudent." It claimed that the O'Reilly cost participants and
beneficiaries millions of dollars in retirement savings between
2016 and 2020.
The plaintiffs in the case are represented by law firm Capozzi
Adler PC, which has filed several lawsuits on excessive fee grounds
in recent years.
Ten of the plan's investment options had more than $43 million in
assets under management in 2020, which was more than double the
average of similarly sized plans, according to the complaint.
Another indication that the plan was "poorly run" and lacked a
prudent process for selecting and monitoring investments, according
to the complaint, was that as of 2020, it had a total cost of more
than 0.60%, or in other words, more than 172% higher than the
average.
The workers also alleged that O'Reilly's 401(k) paid $49.86 in
recordkeeping costs in 2020, compared to similar size plans that
paid between $23 and $30 for these services.
In its motion to dismiss the allegations, the company argued that
the workers specifically picked ten of the plan's 30 investment
options to suggest they were too costly.
While the ex-employees cited the Seventh Circuit's March ruling in
Hughes v. Northwestern University, to bolster their case, Wimes
dismissed the suit.
O'Reilly Automotive Inc. did not immediately respond to a request
for comment. [GN]
PAPA INC: Rescheduling of Class Certification Hearing Sought
------------------------------------------------------------
In the class action lawsuit captioned as Jennifer Pardo and
Evangeline Matthews, individually and on behalf of all others
similarly situated, v. Papa, Inc., Case No. 3:21-cv-06326-RS (N.D.
Cal.), the Parties agree and stipulate, subject to the approval of
the Court, that the class certification hearing currently scheduled
for July 13, 2023, be continued by about three months to October
12, 2023, or another date as determined by the Court in its
discretion.
On August 17, 2021, the initial class action complaint in this
matter was filed, alleging that the Defendant violated the Fair
Labor Standards Act (FLSA) and several provisions of the California
Labor Code.
On October 18, 2021, the initial complaint was amended for the
first time to add an eleventh cause of action for enforcement of
the Private Attorneys General Act of 2004, Labor Code sections 2698
et. seq., (PAGA).
On March 4, 2022, a Second Amended Complaint was filed substituting
the Plaintiff Jennifer Pardo as the named plaintiff in this
matter.
On October 5, 2022, this Court granted the Plaintiff Pardo’s
motion for conditional certification of an FLSA Collective, and the
Court ordered the parties to provide notice to the FLSA Collective.
Papa, Inc. designs and develops software solutions. The Company
offers platform that connects college students to senior citizens
for companionship and assistance.
A copy of the Parties' motion dated May 15, 2023 is available from
PacerMonitor.com at https://bit.ly/435FfY8 at no extra charge.[CC]
The Defendant is represented by:
Jonathan M. Lebe, Esq.
Zachary Gershman, Esq.
LEBE LAW, APLC
777 S. Alameda Street, Second Floor
Los Angeles, CA 90021
Telephone: (213) 444-1973
E-mail: Jon@lebelaw.com
Zachary@lebelaw.com
- and -
Donald P. Sullivan, Esq.
Shannon B. Nakabayashi, Esq.
Kathleen B. Roney, Esq.
JACKSON LEWIS P.C.
50 California Street, 9th Floor
San Francisco, CA 94111-4615
Telephone: (415) 394-9400
Facsimile: (415) 394-9401
E-mail: Donald.Sullivan@jacksonlewis.com
Kathleen.Roney@jacksonlewis.com
PAWN AMERICA: Bid to Compel Arbitration Nixed in Thomas Class Suit
------------------------------------------------------------------
In the class action lawsuit captioned as MELISSA THOMAS; RANDELL
HUFF; MEGAN MURILLO; MONIQUE DERR; and PAOLA MANZO, on behalf of
themselves and all others similarly situated, v. PAWN AMERICA
MINNESOTA, LLC; PAYDAY AMERICA, INC.; and PAL CARD MINNESOTA, LLC,
Case No. 0:21-cv-02554-PJS-JFD (D. Minn.), the Hon. Judge Patrick
J. Schiltz entered an order denying the defendants' motion to
compel arbitration.
The Court said. "Even if the April 7 status conference transpired
exactly as Pawn America describes, Pawn America has offered no
explanation for why it did not appeal or object to Judge Bowbeer's
order so as to preserve its right to arbitrate. Nor can Pawn
America explain why it never informed this Court about its intent
to arbitrate either before orduring the hearing on its motion to
dismiss. Pawn America does not dispute that it never raised
arbitration with this Court until July, three months after it
allegedly raised the issue with Judge Bowbeer, and more than two
months after the Court heard
argument on its motion to dismiss."
The Court declines to adopt such an unworkable rule. Instead, the
Court holds that Pawn America had knowledge of the arbitration
clauses because those arbitration clauses appeared in its own
contracts. The Plaintiffs do not need to prove that a particular
agent of Pawn America attained a particular level of subjective
knowledge or understanding of Pawn America’s right to arbitrate.
The Plaintiffs are customers of Pawn America who filed this
putative class action against Pawn America after their sensitive
personal information was stolen from Pawn America’s computer
network.
The Defendants Pawn America Minnesota, LLC, Payday America, Inc.,
and PAL Card Minnesota, LLC are Minnesota‐based businesses that
offer pawnbroking and other services.
Pawn America is a Minnesota‐based business that offers
pawnbroking and other services.
A copy of the Court's order dated May 11, 2023 is available from
PacerMonitor.com at https://bit.ly/42Ugcav at no extra charge.[CC]
The Plaintiffs are represented by:
Anne T. Regan, Esq.
Nathan D. Prosser, Esq.
Lindsey L. Larson, Esq.
HELLMUTH & JOHNSON, PLLC
8050 W 78th St
Minneapolis, MN 55439
Telephone: (952) 941-4005
- and -
Christopher P. Renz, Esq.
Bryan L. Bleichner, Esq.
Jeffrey D. Bores, Esq.
CHESTNUT CAMBRONNE P.A.
100 S Washington Ave Suite 1700
Minneapolis, MN 55401
Telephone: (612) 339-7300
- and -
Terence R. Coates, Esq.
Justin C. Walker, Esq.
MARKOVITS, STOCK & DEMARCO, LLC
119 E Court St No. 530
Cincinnati, OH 45202
Telephone: (855) 843-5442
- and -
Joseph Lyon, Esq.
THE LION LAW FIRM LLC
- and -
David K. Lietz, Esq.
Gary M. Klinger, Esq.
MILBERG COLEMAN BRYSON PHILLIPS GROSSMAN PLLC
The the Defendant is represented by:
Thomas W. Hayde, Esq.
Shawn Tuma, Esq.
SPENCER FANE LLP
1000 Walnut, Suite 1400
Kansas City, MO 64106
- and -
Doug Boettge, Esq.
STINSON LLP
1201 Walnut St Ste 2900
Kansas City, MO 64106
PBS CONSTRUCTION: Vega Sues Over Unpaid OT Hours
------------------------------------------------
LUZ OMAR MEDINA VEGA, individually and on behalf of all others
similarly situated, Plaintiff v. PBS CONSTRUCTION LLC AND BOGDAN S.
PRINDI, Defendants, Case No. 6:23-cv-00940 (M.D. Fla., May 19,
2023) seeks redress for Defendant's willful violations of the Fair
Labor Standards Act as well as any related Florida state law claims
for Defendants' failure to pay overtime and minimum wages owed.
The Plaintiff began working at Defendants in March 2021 through
December 22, 2021 as a laborer. She asserts that Defendants
knowingly, deliberately, and voluntarily failed to pay their
employees for all hours worked over 40 in a workweek at the federal
and state mandated overtime rate.
PBS Construction LLC is a business that is located, headquartered,
and conducts business in Orlando, Florida.[BN]
The Plaintiff is represented by:
Daniel I. Schlade, Esq.
JUSTICIA LABORAL LLC
6232 N. Pulaski Road, Suite 300
Chicago, IL 60646
Telephone: (773) 415-4898
E-mail: dschlade@justicialaboral.com
PELOTON INTERACTIVE: Passman Appeals Class Certification Bid Denial
-------------------------------------------------------------------
ERIC PASSMAN, et al. are taking an appeal from a court order
denying their motion for class certification in the lawsuit
entitled Eric Passman, et al., individually and on behalf of all
others similarly situated, Plaintiffs, v. Peloton Interactive,
Inc., Defendant, Case No. 19-cv-11711, in the U.S. District Court
for the Southern District of New York.
As previously reported in the Class Action Reporter, the Plaintiffs
bring this action against the Defendant alleging violations of New
York's consumer fraud statutes, New York General Business Law
(NYGBL) Sections 349 and 350.
On Oct. 17, 2022, the Plaintiffs filed a motion to certify class.
The Plaintiffs seek to certify 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 in the State
of New York."
Because the Court finds that the parties' letter motions to seal
are consistent with the Court's prior sealing orders, the motions
to seal were granted. Morevoer, Because the Court finds the
individual issues predominate over common ones, it concluded that
the Plaintiffs have not established that the purported class
satisfies the predominance requirement of Rule 23(b)(3). Therefore,
the Plaintiffs' motion for class certification was denied.
The appellate case is captioned Fishon v. Peloton Interactive,
Inc., Case No. 23-809, in the United States Court of Appeals for
the Second Circuit, filed on May 16, 2023. [BN]
Plaintiffs-Petitioners ERIC PASSMAN, et al., individually and on
behalf of all others similarly situated, are represented by:
Aaron Michael Zigler, Esq.
ZIGLER LAW GROUP, LLC
308 South Jefferson Street
Chicago, IL 60661
Telephone: (312) 535-5955
Defendant-Respondent PELOTON INTERACTIVE, INC. is represented by:
William O. Reckler, Esq.
LATHAM & WATKINS LLP
1271 Avenue of the Americas
New York, NY 10020
Telephone: (212) 906-1200
PENNSYLVANIA: Appeal Quashed as Untimely in Nifas v. McGinley
-------------------------------------------------------------
The Commonwealth Court of Pennsylvania quashes as untimely the
appeal case titled Rasheed Nifas and Garry Mason, Appellants v.
Thomas McGinley, Renee Foulds, Anthony Luscavage, Karen
Merritt-Scully, and Blanche Milo, Case No. 1467 C.D. 2021 (Pa.
Cmmw.).
Rasheed Nifas and Garry Mason (jointly Appellants), pro se, appeal
from an order of the Court of Common Pleas of Northumberland County
(trial court) dated June 9, 2021, denying their in forma pauperis
status and dismissing their civil complaint as frivolous. Upon
review, the Court of Appeals quashes the appeal as untimely.
The Appellants are inmates incarcerated in the State Correctional
Institution in Coal Township. In May 2021, they filed a purported
class action complaint in the trial court, alleging that prison
personnel violated their constitutional rights by failing to
implement proper safety protocols during the COVID-19 pandemic,
resulting in the Appellants' contraction of COVID-19. The
Appellants also filed a praecipe to proceed in forma pauperis,
which the trial court apparently treated as an application for in
forma pauperis status.
On June 9, 2021, the trial court issued an order dismissing the
Appellants' praecipe and complaint as frivolous.
Judge Christine Fizzano Cannon, writing for the Panel, notes that
the Appellants suggest that they did not receive timely service of
the trial court's dismissal and, additionally, that the trial court
did not timely process their Notice of Appeal.
Consistent with the Appellants' averment that Nifas called the
trial court Prothonotary for a copy of the order on July 22, 2021,
the trial court's docket indicates that a copy of the dismissal
order was sent to Nifas on that date, apparently in response to his
telephone call. Assuming, arguendo, that this was the trial court's
first service of notice of the dismissal on the Appellants, any
appeal had to be filed within 30 days after that date.
However, Judge Fizzano Cannon finds that the first indication of
the trial court's receipt of the Notice of Appeal appears on the
docket dated Dec. 15, 2021, nearly five months after the docket
reflects mailing of a copy of the dismissal in compliance with
Nifas's request. The Notice of Appeal itself was designated by the
Appellants in its caption as "Resubmitted 12/3/21," and although
the certificate of service provides a purported mailing date of
July 26, 2021, the attached certified mail receipts are dated Dec.
15 and 27, 2021. The docket does not reflect any previously filed
Notice of Appeal.
On March 11, 2022, the Court issued an order observing that the
appeal appeared to be untimely and directing the parties to address
the issue of untimeliness in their briefs on the merits of their
appeal. Other than including the statement of facts quoted here,
however, Judge Fizzano Cannon finds the Appellants did not comply
with this Court's order.
Specifically, the Appellants did not list timeliness as an issue on
appeal and did not discuss it anywhere in the argument section of
their brief; nor did they otherwise point to any record evidence or
offer any legal argument or citation to legal authority in support
of their bare averments of fact. As such, Judge Fizzano Cannon
holds the Appellants have failed to support their implicit
suggestion that the Panel should consider the appeal as timely
although it was filed six months after the trial court's dismissal
order.
In Watkins v. Workers' Compensation Appeal Board (Ingram's Drain &
Sewer Cleaning Inc.) (Pa. Cmwlth., No. 895 C.D. 2018, filed March
11, 2019), this Court considered a similar timeliness issue, Judge
Fizzano Cannon notes. As in this case, the Panel issued an order in
Watkins directing the parties to address in their briefs the
potentially untimely appeal. However, the petitioner failed to
address the timeliness issue, in contravention of this Court's
order. The Panel, therefore, quashed the appeal in Watkins.
Judge Fizzano Cannon finds the Panel's analysis in Watkins
applicable and persuasive here. The Appellants here, like the
petitioner in Watkins, failed to offer any support for their
assertion that they did not receive notice of the trial court's
dismissal order. As in Watkins, the docket here demonstrated the
mailing of the order and did not indicate that the mailing was
returned as undeliverable. Thus, the record here, as in Watkins,
failed to sustain the Appellants' heavy burden of demonstrating an
excuse for their untimely appeal. Moreover, like the petitioner in
Watkins, the Appellants here have waived any argument regarding
such an excuse by failing to offer a developed argument in their
brief.
For these reasons, this Court lacks subject matter jurisdiction
over this appeal. Accordingly, the appeal is quashed as untimely
filed.
Accordingly, Judge Fizzano Cannon holds that the appeal of Rasheed
Nifas and Garry Mason from the order of the Court of Common Pleas
of Northumberland County dated June 9, 2021, is quashed.
A full-text copy of the Court's Memorandum Opinion dated May 8,
2023, is available at https://tinyurl.com/yckbw3m6 from
Leagle.com.
PFIZER INC: EPPs Bid for Class Certification Due June 19
--------------------------------------------------------
In the class action lawsuit captioned as BURLINGTON DRUG CO., INC.
et al., v. PFIZER INC. et al., Case No. 3:12-cv-02389-PGS-DEA
(D.N.J.), the Hon. Judge Douglas E. Arpert entered an order
extending the deadline for filing End-Payor Plaintiffs (EPPs')
Motion for Class Certification until two weeks after the last of
the three Declarants is deposed and that all subsequent deadlines
are likewise extended, with a four-week interval between the
opening and opposition briefs and a three-week interval between the
opposition and reply briefs:
End-Payor Plaintiffs' Motion June 19, 2023
for Class Certification:
The Defendants' Opposition to July 13, 2023
End-Payor the Plaintiffs’ Motion
for Class Certification:
End-Payor Plaintiffs’ Reply in July 26, 2026
Support of Class Certification:
On May 2, 2023, the Court issued an MDL Order, concerning the
declarations of three individuals—Shawn Lovering, David Perret,
and Eric Miller that were addressed by EPPs' experts. In its order,
the Court required EPPs to "promptly supplement any previous
discovery responses or respond to any of the Defendants'
outstanding discovery requests to produce all data and documents in
EPPs' possession or control that are referenced or relied upon by
Declarants" and permitted the Defendants to "promptly conduct the
deposition of the three Declarants."
Pfizer is an American multinational pharmaceutical and
biotechnology corporation.
A copy of the Court's order May 12, 2023, is available from
PacerMonitor.com at https://bit.ly/3MSn4ze at no extra charge.[CC]
PHARM-SAVE INC: Savidge Suit Seeks to Certify Class Action
----------------------------------------------------------
In the class action lawsuit captioned as ANDREA K. SAVIDGE, and
BETH A. LYNCH, individually, and as the representatives of a class
similarly situated persons, v. PHARM-SAVE, INC., d/b/a NEIL MEDICAL
GROUP, et al., Case No. 3:17-cv-00186-CHB-RSE (W.D. Ky.), the
Plaintiffs ask the Court to enter an order certifying the case as a
class action, defining the Class as proposed by the Plaintiffs,
appointing class counsel, and allowing appropriate notice to the
class members, and also to schedule oral argument.
Pharm-Save is in the Pharmaceuticals business.
A copy of the Plaintiffs' motion dated May 15, 2023 is available
from PacerMonitor.com at https://bit.ly/3ovm6jb at no extra
charge.[CC]
The Plaintiffs are represented by:
Peter J. Jannace, Esq.
HERZFELD SUETHOLZ GASTEL
LENISKI & WALL, PLLC
515 Park Avenue
Louisville, KY 40208
Telephone: (502) 636-4333
E-mail: peter@hsglawgroup.com
QUIKRETE COMPANIES: Thomas Sues to Recover Unpaid Wages
-------------------------------------------------------
David Thomas, individually and on behalf of similarly situated
individuals v. THE QUIKRETE COMPANIES, LLC, Case No. 5:23-cv-00638
(W.D. Tex., May 18, 2023), is brought pursuant to the Fair Labor
Standards Act ("FLSA") seeking to recover the unpaid wages,
liquidated damages, and other damages owed to these workers,
together with attorneys' fees, interest, and the costs associated
with these legal proceedings.
Quikrete employs Local Drivers in its regular course of business,
who play a critical role in the transportation and distribution of
its products. Despite the fact that these employees regularly work
more than 40 hours per week, Defendant's policy fails to provide
them with overtime pay. Defendant's failure to pay overtime to
these employees constitutes a violation of the FLSA, says the
complaint.
The Plaintiff is employed by the Defendant and performed work out
of the Defendant's San Antonio location as a Local Driver.
Quikrete Companies, LLC is a scalable, single source for
commercial, residential and industrial building, repair and
rehabilitation products that proudly contributes to the growth and
health of our country's structure and infrastructure every
day.[BN]
The Plaintiff is represented by:
Trang Q. Tran, Esq.
TRAN LAW FIRM
2537 S. Gessner Suite 104
Houston, TX 77063
Phone: (713) 223–8855
Email: trang@tranlf.com
service@tranlf.com
RESURGENT CAPITAL: Court Grants Bid to Dismiss Winter Class Suit
----------------------------------------------------------------
In the case, CIVIA WINTER, individually and on behalf of all others
similarly situated, Plaintiff v. RESURGENT CAPITAL SERVICES L.P.,
et al., Defendants, Civil Action No. 3:22-cv-00772 (ZNQ) (TJB)
(D.N.J.), Judge Zahid N. Quraishi of the U.S. District Court for
the District of New Jersey dismisses the Plaintiff's Complaint
without prejudice.
The matter has been opened to the Court upon the Motion to Dismiss
filed by Defendants Resurgent Capital Services L.P. and Pinnacle
Credit Services, LLC seeking to dismiss Winter's Class Action
Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6).
For the reasons set forth in the accompanying Opinion, Judge
Quraishi dismisses the Plaintiff's Complaint without prejudice for
lack of Article III Standing. The Plaintiff may file an Amended
Complaint consistent with the Court's Opinion within 30 days of the
Order's issuance. Judge Quraishi denies as moot the Defendants'
Motion to Dismiss.
A full-text copy of the Court's May 12, 2023 Order is available at
https://rb.gy/7jv4q from Leagle.com.
RICOH USA: Krutchten Appeals ERISA Case Dismissal
-------------------------------------------------
Plaintiffs KEITH K. KRUTCHTEN, et al., filed an appeal from the
District Court's Memorandum and Opinion Order dated April 20, 2023
entered in the lawsuit entitled KEITH KRUTCHEN, ANGEL D. MURATALLA,
and WILLIAM BEGANI, individually and on behalf of all others
similarly situated v. RICOH USA, INC., THE BOARD OF DIRECTORS OF
RICOH USA, INC., THE RICOH RETIREMENT PLANS COMMITTEE and JOHN DOES
1-30, Case No. 2-22-cv-00678, in the United States District Court
for the Eastern District of Pennsylvania.
This is a class action filed on Feb. 22, 2022 pursuant to the
Employee Retirement Income Security Act of 1974 against the Ricoh
USA, Inc. Retirement Savings Plan's fiduciaries, which include
Ricoh USA, Inc. and the Board of Directors of Ricoh USA, Inc. and
its members during the Class Period and the Ricoh Retirement Plans
Committee and its members during the Class Period.
The Plaintiffs allege that during the putative Class Period,
Defendants, as "fiduciaries" of the Plan, as that term is defined
under ERISA, breached the duties they owed to the Plan, to
Plaintiffs, and to the other participants of the Plan by, inter
alia, (1) failing to objectively and adequately review the Plan's
investment portfolio with due care to ensure that each investment
option was prudent, in terms of cost; and (2) failing to control
the Plan's recordkeeping administration costs.
On May 16, 2022, the Plaintiffs filed an amended complaint.
On June 7, 2022, the Defendants filed a motion to dismiss
Plaintiffs' first amended class action complaint which the Court
granted on November 15, 2022 through an Order signed by Chief Judge
Juan R. Sanchez.
On December 27, 2022, the Plaintiffs filed a Second Amended Class
Action Complaint against the Defendants.
On January 26, 2023, the Defendants filed a Motion to Dismiss
Plaintiffs' Second Amended Complaint which the Court granted again
on April 20, 2023 through an Order entered by Judge Sanchez.
The appellate case is captioned as Keith Krutchten, et al. v. Ricoh
USA, Inc, et al., Case No. 23-1928, in the United States Court of
Appeals for the Third Circuit, filed on May 23, 2023.[BN]
Plaintiffs-Appellants KEITH K. KRUTCHTEN, et al., individually and
on behalf of all others similarly situated, are represented by:
Mark K. Gyandoh, Esq.
CAPOZZI ADLER
312 Old Lancaster Road
Merion Station, PA 19066
Telephone: (717) 233-4101
Defendants-Appellees RICOH USA, INC., et al., are represented by:
Michael E. Kenneally, Esq.
MORGAN LEWIS & BOCKIUS
1111 Pennsylvania Avenue NW
Suite 800 North
Washington, DC 20004
Telephone: (202) 739-3000
- and -
Brian T. Ortelere, Esq.
MORGAN LEWIS & BOCKIUS
1701 Market Street
Philadelphia, PA 19103
Telephone: (215) 963-5150
- and -
Matthew A. Russell, Esq.
MORGAN LEWIS & BOCKIUS
110 N Wacker Drive, Suite 2800
Chicago, IL 60606
Telephone: (312) 324-1000
RUST-OLEUM CORP: Class Certification Briefing Amended to June 14
----------------------------------------------------------------
In the class action lawsuit captioned as ANTHONY BUSH, individually
and on behalf of all others similarly situated, v. RUST-OLEUM
CORPORATION, an Illinois corporation, Case No. e 3:20-cv-03268-LB
(N.D. Cal.), the Hon. Judge Laurel Beeler entered an order amending
the scheduling order regarding class certification briefing by
continuing the deadline for the Defendant to present experts
offered in opposition to the Plaintiff's motion for class
certification for deposition by approximately 30 days to June 14,
2023.
All other dates and deadlines will remain the same, the Court
says.
Rust-Oleum is a manufacturer of protective paints and coatings for
home and industrial use.
A copy of the Court's order dated May 12, 2023, is available from
PacerMonitor.com at https://bit.ly/42XTEp6 at no extra charge.[CC]
SAKS INC: Bid to Dismiss 4th Amended Nunez Class Complaint Denied
-----------------------------------------------------------------
In the case, RANDY NUNEZ, on Behalf of Himself and All Others
Similarly Situated, Plaintiff v. SAKS INCORPORATED, a Tennessee
Corporation, and Does 1-50, inclusive, Defendant, Case No.
15-CV-2717 JAH (WVG) (S.D. Cal.), Judge John A. Houston of the U.S.
District Court for the Southern District of California:
a. denies Saks' motion to dismiss Plaintiff's the Fourth
Amended Class Action Complaint in its entirety pursuant to
Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6); and
b. grants in part the Defendant's motion to strike pursuant to
Federal Rule of Civil Procedure 12(f).
The Plaintiff originally filed a complaint on Dec. 3, 2015.
Following the Court's order granting the Defendant's Motion to
Dismiss Plaintiff's Third Amended Complaint with prejudice on Dec.
1, 2017, the Plaintiff appealed. On appeal, the Ninth Circuit
reversed the Court's dismissal of the Plaintiff's TAC with
prejudice and remanded the matter for further proceedings. It
determined that the Plaintiff has both Article III and statutory
standing to pursue his individual claims for damages and satisfied
Federal Rule of Civil Procedure 9(b)'s peculiarity requirement for
his claims under the FAL, CLRA, and UCL and determined the
Plaintiff should be allowed to amend his complaint to allege facts
supporting standing to pursue injunctive relief on remand.
The Plaintiff, thereafter, filed his FACC. He asserts claims for
violation of the California Consumer Legal Remedies Act ("CLRA"),
California Civil Code section 1750 et. seq., False Advertising Law
("FAL"), California Business & Professions Code section 17500, et
seq., and Unfair Competition Law ("UCL"), California Business and
Professions Code section 17200, et seq. He alleges the Defendant
employs false and misleading reference prices, advertised
discounts, and a deceptive pricing scheme for the marketing and
sale of its Saks Fifth Avenue-branded merchandise at its Off Fifth
outlet stores. Further, he alleges he suffered economic injury in
purchasing Saks Fifth Avenue-branded shoes from the Defendant.
The Plaintiff seeks to prohibit the Defendant's future use of the
alleged false and misleading retail price comparisons for the
labeling, advertising, and packaging of the Defendant's
merchandise, and seeks to represent a putative class of all
individuals across the nation with previous purchases of
Saks-branded products from the Off Fifth outlet stores in
California.
The Defendant seeks dismissal of the Plaintiff's FACC in its
entirety pursuant to Rules 12(b)(1) and 12(b)(6). It argues the
complaint should be dismissed because it did not advertise a former
price but a "Market Price" and the Plaintiff did not allege the
"Market Price" was incorrect. Additionally, the Defendant argues
the Plaintiff knew the "Market Price" did not represent the former
price of the shoes at the time of his purchase and, therefore, has
suffered no injury and fails to allege reliance and causation as
required. It also argues the Plaintiff is not entitled to equitable
relief.
In opposition, the Plaintiff argues the Court lacks jurisdiction to
entertain any further challenge to Article III and statutory
standing, and he states claims for violations of the UCL, FAL and
CLRA, and he has standing to seek injunctive relief.
First, Judge Houston holds that the rule of the mandate explicitly
holds that the Plaintiff has Article III and statutory standing. If
the Court determined the Plaintiff lacks standing, even for
different grounds, it would contravene the Ninth Circuit's holding.
Accordingly, the Defendant's motion to dismiss for lack of standing
is denied as beyond the scope of the mandate.
Second, Judge Houston holds that (i) the Plaintiff sufficiently
alleges the "Market Price", "You Pay" and other information on the
price tags of merchandise at the Off 5th stores is likely to
deceive a reasonable consumer; (ii) because the Plaintiff plausibly
alleges violation of the FAL and CLRA, he also states a claim under
the unlawful prong of the UCL; (iii) it is unclear whether damages
will adequately address the harm alleged; and (iv) knowledge that
the advertisement or label was false in the past does not equate to
knowledge that it will remain false in the future.
Taking the Plaintiff's allegations as true, Judge Houston finds
that the Plaintiff would not be able to determine whether the
listed "Market Price" is a bona fide or false reference price
inflating the amount of the discount during future purchases.
Accordingly, he finds the Plaintiff has standing to seek injunctive
relief.
The Defendant seeks an order striking the Plaintiff's request for
disgorgement under Federal Rule of Civil Procedure 12(f). It
maintains the UCL limits relief to injunctions and restitution but
the Plaintiff asserts he is entitled to both restitution and
disgorgement in the FACC.
Judge Houston finds that no indication that the Defendant is using
the motion to strike as a delay tactic and nonrestitutionary
disgorgement has no bearing on the action. Accordingly, he grants
the Defendant's motion to strike as to nonrestitutionary
disgorgement allegations in paragraph 66 of the Fourth Amended
Complaint.
A full-text copy of the Court's May 16, 2023 Order is available at
https://rb.gy/2ep8x from Leagle.com.
SAM'S WEST: Sanchez Appeals Class Cert. Bid Denial to 9th Circuit
-----------------------------------------------------------------
CARLOS SANCHEZ is taking an appeal from a court order denying the
his motion for class certification in the lawsuit entitled Carlos
Sanchez, individually and on behalf of all others similarly
situated, Plaintiff, v. Sam's West, Inc., Defendant, Case No.
2:21-cv-05122-SVW-JC, in the U.S. District Court for the Central
District of California.
As previously reported in the Class Action Reporter, Mr. Sanchez
alleges that the Defendant failed to pay minimum wages and
liquidated damages, failed to pay for all hours worked, failed to
pay overtime wages, failed to pay all wages owed at termination of
employment, failed to provide accurate, itemized wage statements,
and engaged in unlawful and unfair business practices in violation
of the California Labor Code and the California's Business and
Professions Code.
On Apr. 11, 2022, the Plaintiff filed a motion to certify class,
which the Court denied through an Order entered by Judge Stephen V.
Wilson. Judge Wilson determined that the Plaintiff has not
submitted substantial evidence of a policy resulting in
uncompensated waiting time, and that individualized questions
regarding store-by-store variation and even shift by shift
variation predominate. The Court denied the Plaintiff's motion
without prejudice.
The appellate case is captioned Carlos Sanchez v. Sam's West, Inc.,
Case No. 23-80040, in the United States Court of Appeals for the
Ninth Circuit, filed on May 19, 2023. [BN]
Plaintiff-Petitioner CARLOS SANCHEZ, individually and on behalf of
all others similarly situated, is represented by:
Kiley Lynn Grombacher, Esq.
Leslie H. Joyner, Esq.
BRADLEY GROMBACHER LLP
31365 Oak Crest Drive, Suite 240
Westlake Village, CA 91361
Telephone: (805) 270-7100
Defendant-Respondent SAM'S WEST, INC. is represented by:
Alis Moon, Esq.
Mitchell Aaron Wrosch, Esq.
OGLETREE, DEAKINS, NASH, SMOAK & STEWART, PC
695 Town Center Drive, 15th Floor
Costa Mesa, CA 92626
Telephone: (714) 800-7900
- and -
Paloma Peracchio, Esq.
OGLETREE, DEAKINS, NASH, SMOAK & STEWART, PC
400 S. Hope Street, Suite 1200
Los Angeles, CA 90071
Telephone: (213) 438-1293
SAMSUNG ELECTRONICS: Denial of Bid to Stay Zortea Remand Appealed
-----------------------------------------------------------------
Samsung Electronics America Inc., et al., filed an appeal from the
District Court's Order dated February 17, 2023 entered in the
lawsuit entitled Monica Zortea, individually and on behalf of all
others similarly situated, Plaintiff v. Samsung Electronics America
Inc., et al., Defendants, Case No. 2-22-cv-01309, in the U.S.
District Court for the Western District of Pennsylvania.
As previously reported in the Class Action Reporter, the lawsuit,
which was removed from the Court of Common Pleas, Allegheny County,
to the Western District of Pennsylvania, is brought by the
Plaintiff against the Defendants for violation of the Magnuson-Moss
Warranty Act by requiring consumers to seek repairs only from
authorized service providers or use only Samsung-branded
replacement parts for repairs.
On Oct. 12, 2022, the Plaintiff filed a motion to remand the case
back to state court, which the Court granted through an Order
entered by Judge Cathy Bissoon on Feb. 14, 2023. The Court further
held that Defendant's Motion to Dismiss will be denied as moot
without prejudice because the Court is remanding the suit to
Allegheny County.
On February 17, 2023, the Defendant filed a MOTION to Stay Remand
Order on Motion to Dismiss for Failure to State a Claim, which the
Court denied on the same day through an Order signed by Judge Cathy
Bissoon.
The appellate case is captioned as Monica Zortea v. Samsung
Electronics America Inc, et al., Case No. 23-1941, in the United
States Court of Appeals for the Third Circuit, filed on May 23,
2023.[BN]
Defendant-Appellant SAMSUNG ELECTRONICS AMERICA INC. is represented
by:
Michael A. Comber, Esq.
Stephen W. Gorman, Esq.
REISINGER COMBER & MILLER
436 Seventh Avenue
300 Koppers Building
Pittsburgh, PA 15219
Telephone: (412) 894-1380
- and -
Thomas R. Waskom, Esq.
HUNTON ANDREWS KURTH
951 E Byrd Street
Riverfront Plaza, East Tower
Richmond, VA 23219
Telephone: (804) 788-8403
Plaintiff-Appellee MONICA ZORTEA, individually and on behalf of all
others similarly situated, is represented by:
Kevin J. Abramowicz, Esq.
Stephanie Moore, Esq.
Chandler Steiger, Esq.
Kevin W. Tucker, Esq.
EAST END TRIAL GROUP
6901 Lynn Way, Suite 215
Pittsburgh, PA 15208
Telephone: (412) 223-5740
- and -
Kenneth A. Held, Esq.
Edwin J. Kilpela, Jr., Esq.
LYNCH CARPENTER
1133 Penn Avenue, 5th Floor
Pittsburgh, PA 15222
Telephone: (716) 341-2397
SAN DIEGO COUNTY, CA: Plaintiffs Must File Documents Under Seal
---------------------------------------------------------------
In the class action lawsuit captioned as DARRYL DUNSMORE, ANDREE
ANDRADE, ERNEST ARCHULETA, JAMES CLARK, ANTHONY EDWARDS, LISA
LANDERS, REANNA LEVY, JOSUE LOPEZ, CHRISTOPHER NELSON, CHRISTOPHER
NORWOOD, JESSE OLIVARES, GUSTAVO SEPULVEDA, MICHAEL TAYLOR, and
LAURA ZOERNER, on behalf of themselves and all others similarly
situated, v. SAN DIEGO COUNTY SHERIFF’S DEPARTMENT, COUNTY OF SAN
DIEGO, SAN DIEGO COUNTY PROBATION DEPARTMENT, and DOES 1 to 20,
inclusive, Case No. 3:20-cv-00406-AJB-DDL (S.D. Cal.), the Hon.
Judge Anthony J. Battaglia entered an order on plaintiffs' motion
to file documents under seal.
The Plaintiffs wish to seal certain exhibits offered in support of
their motions for preliminary injunction and provisional class
certification.
The Plaintiffs argue compelling reasons exist to grant their
request as their request to seal is narrowly tailored, and the
materials they wish to seal contain sensitive portions of
incarcerated individuals’ medical records, as well as the names
and CDCR numbers of incarcerated individuals who have not submitted
declarations in this litigation.
Because the Plaintiffs' motions for preliminary injunction and
provisional class certification are more than tangentially related
to the merits of the case, the compelling reasons standard applies
in determining whether to grant the ex parte motion to seal.
The court recognizes that the need to protect medical privacy has
qualified as a "compelling reason" for sealing records. However,
while the Court recognizes that medical privacy is a compelling
reason to warrant sealing, the Court also recognizes that the
presumptive public right of access addressed in Kamakana requires
redaction of only those portions of the motions which warrant
sealing.
The Court agrees with the Plaintiffs. The exhibits at issue make
direct references to the Plaintiffs' personal identification
numbers such as their social security numbers, as well as
discussions regarding the Plaintiffs' medical and mental health
histories, conditions, diagnoses, and treatments. Release of this
information to the public could potentially embarrass or injure the
Plaintiffs.
A copy of the Court's order dated May 15, 2023 is available from
PacerMonitor.com at https://bit.ly/3OGcCMU at no extra charge.[CC]
SEAFORD BAGELS: Faces Flores Suit Over Unsolicited Text Messages
----------------------------------------------------------------
Sandra Flores, individually and on behalf of all others similarly
situated, Plaintiff v. Seaford Bagels, Inc., Defendant, Case No.
4:23-cv-01858 (S.D. Tex., May 21, 2023) is a putative class action
against the Defendant pursuant to the Telephone Consumer Protection
Act.
To promote its goods and services, the Defendant allegedly engages
in unsolicited text messaging and continues to text message
consumers, including Plaintiff, after they have opted out of
Defendant's solicitations, in violation of the National Do Not Call
Registry.
Through this action, the Plaintiff seeks injunctive relief to halt
Defendant's unlawful conduct, which has resulted in the invasion of
privacy, harassment, aggravation, and disruption of the daily life
of thousands of individuals. The Plaintiff also seeks statutory
damages on behalf of Plaintiff and members of the Class, and any
other available legal or equitable remedies.
Seaford Bagels, Inc. is a company that operates in the restaurants
industry whose principal office is located in New York.[BN]
The Plaintiff is represented by:
Manuel S. Hiraldo, Esq.
HIRALDO P.A.
401 E. Las Olas Boulevard Suite 1400
Ft. Lauderdale, FL 33301
Telephone: (954) 400-4713
E-mail: mhiraldo@hiraldolaw.com
SONY INTERACTIVE: Faces Appeal Tribunal Due to Monopoly Class Suit
------------------------------------------------------------------
Ruetir reports that the Activision-Blizzar soap opera and the
purchase by Microsoft continue to be the order of the day, however
on May 28, 2023, we bring you different news. This time it is Sony
that has to defend itself before the Competition Appeal Tribunal
(CAT) due to a class action lawsuit for monopoly something that
would not sit too well with the arguments that the company uses to
try to block the purchase of Microsoft.
This information has been given to us Florian Mueller on his
official Twitter account, Florian is an expert in patents and has
been working in the industry for over 30 years, so there is no
doubt that he knows what he is talking about. On this occasion, a
class action lawsuit forces Sony to face the CAT to defend itself
against this. Initially, this claim is based on the fact that Sony
has been able to break the laws of the UK and Europe when it was
part of the European Union.
These are the reasons why Sony has been sued
So that you do not miss any detail, we are going to offer you all
the reasons that make this real and yes, the monopoly is between
them. If you want to know all the details, do not miss the news,
because we will explain them to you point by point; This defense
will take place on June 7 in the same court where Microsoft will
appeal the CMA's decision.
Here we tell you the reasons:
Sony has a near monopoly on the sale of digital games and
additional content through its control of the PlayStation store.
Sony uses this dominance to impose strict and even abusive terms
and conditions on game developers and publishers. Such terms allow
Sony sets the price of digital games and game content, in addition
to charging a 30% commission on each purchase. This results in
excessive and unfair prices to consumers. These prices are out of
all proportion to Sony's costs to provide these services to its
customers.
Given this, it seems that the hearing will last about 3 days. And
if, this is a good option for the court to familiarize itself with
the video game market and with Sony's market dominance thanks to
this lawsuit before Microsoft's appeal. We will see how all this
evolves, meanwhile we can only wait for the resolutions.
Given this we can say that the purchase of Activision-Blizzard by
Microsoft is getting closer. Even the British Government itself has
criticized the CMA's decision to block the purchase; This added to
the fact that all countries have accepted the purchase, makes the
UK Regulatory Body is left completely alone with this decision. A
very complicated situation for the CMA. [GN]
SPIRIT AEROSYSTEMS: Raymond Collective Action Finally Certified
---------------------------------------------------------------
In the case, DONETTA RAYMOND, et al., Plaintiffs v. SPIRIT
AEROSYSTEMS HOLDINGS, INC., and SPIRIT AEROSYSTEMS, INC.,
Defendant, Case No. 16-1282-JWB (D. Kan.), Judge John W. Broomes of
the U.S. District Court for the District of Kansas:
a. grants the Plaintiffs' motion for final certification of a
collective action;
b. denies the Defendants' motion to strike the collective
claims and to decertify;
c. grants the Defendants' motion to exclude testimony of
Dr. Toni Locklear;
d. grants in part and denies in part the Defendants' motion to
exclude testimony of Elizabeth Pendo;
e. denies as moot the Defendants' motion to exclude testimony
of Dr. Lance Kaufman;
f. grants the Defendants' motion to exclude testimony of
Dr. Kevin Cahill;
g. grants the Defendants' motion to strike testimony;
h. denies as moot the Defendants' motion to exclude testimony
of Dr. Robert Bardwell; and
i. grants the Defendants' motion for partial summary judgment.
The matter is before the Court on the Plaintiffs' motion for final
certification of a collective action under the Age Discrimination
in Employment Act (ADEA), and on numerous motions from the
Defendants, including a motion to strike or decertify the
collective action claims, a motion for partial summary judgment on
those claims, five Daubert motions to exclude testimony of
witnesses, and a motion to strike testimony.
The case arises from a 2013 reduction-in-force ("RIF") at Spirit.
As part of a company-wide effort to reduce costs, Spirit laid off
271 employees from its manufacturing facility in Wichita, Kansas,
where it employed more than 4,000 workers. The Society of
Professional Engineering Employees in Aerospace ("SPEEA")
represents two separate bargaining units -- the Wichita Engineering
Unit (WEU) and Wichita Technical and Professional Unit (WTPU) --
both with their own collective bargaining agreement ("CBA") with
Spirit. The Plaintiffs were Spirit employees in Wichita represented
by SPEEA who lost their jobs in the layoffs. After the layoffs,
some Plaintiffs tried to get rehired into positions at Spirit but
were not rehired.
The Plaintiffs allege that in 2013, new CEO Larry Lawson began
focusing on cutting labor costs and that Spirit falsely claimed
that past tolerance of poor performance required tightening of
performance standards. Lawson decided to implement Spirit's
first-ever mass layoff and Spirit allegedly sought to eliminate
more expensive (older, sicker, and those who took leave) workers.
To achieve this, Spirit allegedly changed its annual performance
evaluation ["PM"] process to focus on older and sicker workers to
protect the younger workforce from the layoff by mandating a
15-70-15 distribution in performance evaluations and by using a
"calibration" process to "tighten" the standards.
The Plaintiffs contend Spirit "manipulated" the CBAs by depriving
long-serving employees of a "bump" in retention ranking and by not
requiring new employees to be ranked. Plaintiffs also note that
Spirit changed to self-funded health insurance in 2013 and contends
the company targeted older workers with higher health care claim
costs in the layoff. They also claim Spirit discriminated against
them in rehiring based on age.
Various subgroups of Plaintiffs assert claims under three statutes:
the ADEA, 29 U.S.C. Section 621; the Americans with Disabilities
Act (ADA), 42 U.S.C. Section 12112; and/or the Family Medical Leave
Act (FMLA), 29 U.S.C. Section 2615. The three main statutory claims
are further divided into "termination" and "failure-to-rehire"
claims, with some Plaintiffs asserting only termination-related
claims, some asserting only failure to rehire claims, and some
asserting both. Additionally, the claims are divided into disparate
treatment and/or disparate impact theories. Plaintiffs assert the
ADEA claims both collectively and individually. With respect to the
collective ADEA claims, the Plaintiffs allege a "pattern or
practice" of age discrimination on Defendants' part. A few
Plaintiffs also assert individual retaliation claims.
In the pretrial order, the Plaintiffs assume that the case will be
tried initially as a collective action, with initial consideration
of their pattern or practice and disparate impact collective action
claims, pursuant to the requirements set forth in Int'l Bhd. Of
Teamsters v. United States, 431 U.S. 324, 334-35 (1977). In the
event of decertification or dismissal of any of the collective
action claims, the Plaintiffs request the Court's permission to
amend the pretrial order. For their part, the Defendants dispute
that the case may be tried as a pattern-or-practice case and say
any request to amend the pretrial order can be addressed after the
court rules on the current motions.
The result of all this is a somewhat dizzying array of claims and
parties, set forth by the Plaintiffs in a table in the pretrial
order, and summarized by them as follows:
1. Collective Termination claim under the ADEA and Teamsters
alleging disparate impact (15 Plaintiffs).
2. Collective Termination claim under the ADEA alleging
disparate treatment pattern or practice (15 Plaintiffs).
3. Collective Hiring claim under the ADEA alleging disparate
treatment pattern or practice (51 Plaintiffs).
4. Individual termination claims under the ADEA alleging
disparate impact (15 Plaintiffs).
5. Individual termination claims under the ADEA alleging
disparate treatment (15 Plaintiffs).
6. Individual hiring claims under the ADEA alleging disparate
treatment (51 Plaintiffs).
7. Individual termination claims under the ADA alleging
discriminatory disparate treatment (3 Plaintiffs).
8. Individual termination claims under the FMLA alleging
retaliatory termination (2 Plaintiffs).
9. Individual hiring claims under the ADA alleging
discriminatory disparate treatment (11 Plaintiffs).
10. Individual hiring claims under the FMLA alleging
retaliatory failure to hire (5 pPlaintiffs)
11. Individual termination claims under the ADA alleging
discriminatory disparate impact (3 Plaintiffs).
12. Individual hiring claims under the ADA alleging
discriminatory disparate impact (11 Plaintiffs).
The Defendants respond with a table of their own listing 31
defenses and showing the Plaintiffs and claims as to which each
defense is asserted.
There are a number of pending motions, including motions relating
to certification of collective claims under the ADEA, Daubert
motions to strike or limit expert testimony, and Spirit's motion
for partial summary judgment, which seeks judgment on the
collective claims.
The Court concludes the most efficient manner of addressing the
motions is to first address the question of certification, and then
to proceed to the summary judgment motion, addressing the Daubert
motions within the context of summary judgment as necessary.
After reviewing the arguments and relevant case law, Judge Broomes
concludes it is appropriate to first address whether the ADEA
claims are properly asserted collectively under 29 U.S.C. Section
216. Accordingly, he first addresses the Plaintiffs' motion to
certify and Spirit's motion to strike and decertify. After
determining whether collective claims are proper, he address
Spirit's motion for partial summary judgment, as well as any
Daubert or other motions relating to expert testimony that may be
relevant to summary judgment issues.
The Plaintiffs move for final certification of their ADEA
collective action. Specifically, they seek certification of a
collective of 15 Plaintiffs asserting age discrimination in
terminations, under both disparate treatment and disparate impact
theories, and a collective of 51 Plaintiffs asserting age
discrimination in hiring under a disparate treatment theory. The
Defendants move to strike the collective termination claims and to
decertify the previously certified (conditionally) hiring
collective.
Judge Broomes agrees with the Plaintiffs that they have
sufficiently identified and cited evidence that they are similarly
situated with respect to common company policies and processes at
Spirit, processes which they claim were part of a Spirit plan to
discriminate on account of age. The Defendants also have not shown
that the failure of any individual Plaintiff to file an EEOC charge
merits denial of certification. Hence, the Plaintiffs' motion for
final certification is granted and the Defendants' motion to strike
and decertify is denied. Judge Broomes finds that the Plaintiffs
are similarly situated within the meaning of Section 216(b) on
their collective claims.
Spirit's motion for partial summary judgment seeks judgment in its
favor on the three collective age discrimination claims asserted by
the Plaintiffs under the ADEA: (1) the pattern-or-practice
disparate treatment termination claim; (2) the pattern-or-practice
disparate impact termination claim; and (3) the pattern-or-practice
disparate treatment failure-to-hire claim.
Dr. Kaufman is a consultant with a Ph.D. in Economics. He was
retained by the Plaintiffs to evaluate disparities in terminations
related to age and Spirit-covered medical expenses. Kaufman
concluded his analysis showed statistically significant age and
health disparities in Spirit's 2013 performance management
exercise, retention ranking process, and July RIF selections, which
are consistent with the Plaintiff's assertions that Spirit
employment practices harmed older workers. Paul F. White is a labor
economist with a Ph.D. in the field of economics. He was retained
by the Defendants to evaluate the claims in the First Amended
Complaint and respond to Plaintiff's economic experts, including
Dr. Kaufman.
Judge Broomes concludes the motion to exclude Cahill's testimony
should be granted. He agrees with the Defendants that Cahill offers
opinions outside the area of his economic expertise when he
interprets or opines on the significance of statements and
omissions by Spirit in its SEC disclosures. The Plaintiffs
ultimately fail to cite any competent evidence that Spirit did not
genuinely believe its cost-cutting measures through the RIF were in
the financial interests of the company, even if the Plaintiffs or
selected economic experts question Spirit's judgment. Nor have they
cited evidence that Spirit intentionally targeted older workers in
the RIF, or that Spirit's decision to significantly cut its
salaried workforce in Wichita was otherwise a pretext to fire older
workers.
Judge Broomes also grants Defendants' motion to exclude Dr.
Locklear's testimony under Daubert. As helpful as such analysis
might be to organizations seeking guidance, the opinions offered
are not based on a sufficiently reliable method to warrant their
admission at trial, nor would they be helpful to a jury's
understanding of the issues or in deciding the case.
The Plaintiffs also cite expert testimony from Professor Elizabeth
Pendo, J.D., who thinks Spirit did not provide its management
personnel with effective training or otherwise take sufficient
steps to address the risk of reliance of management on common
stereotypes and assumptions related to age, disability, or both,
and that this contributed to a significant risk of discriminatory
decision-making, especially in the absence of effective training.
Judge Broomes holds that Daubert would likely require exclusion of
Pendo's opinions, but even taking them at face value, the assertion
that Spirit's failure to provide more stereotype training created a
"risk" of discriminatory results provides no reasonable support for
a conclusion that Spirit in fact had a "standard operating
procedure" of engaging in age discrimination. Thus, even if Pendo's
opinions are considered, they provide no material support for a
finding that Spirit engaged in a regular pattern or practice of age
discrimination.
The opinions offered by Kaufman, however, are not sufficient,
either alone or in combination with the other evidence cited, to
show gross statistical disparities that could establish a pattern
or practice of age discrimination. Judge Broomes opines that the
test used by Dr. Kaufman was not closely tied to the actual manner
in which the retention exercise was conducted. Dr. Kaufman's
opinions, under all of the circumstances and considered together
with the Plaintiffs' other evidence, do not reasonably show that
Spirit had a regular procedure or policy of age discrimination.
Turning to the merits, Judge Broomes holds that aside from this
statistical evidence, there is a complete lack of evidence showing
that Spirit has any history, recent or otherwise, of engaging in
age discrimination against its workers. No individuals acts of age
discrimination, let alone a pattern of such conduct, is cited in
the evidence. Based on the uncontroverted facts, the Defendants are
entitled to summary judgment on the Plaintiffs' collective claims
that their terminations were attributable to a pattern and practice
of intentional age discrimination at Spirit.
Judge Broomes further holds that the Plaintiffs' disparate impact
termination claim fails as a matter of law for two reasons. First,
even assuming Plaintiffs have timely exhausted the claim, the
Plaintiffs have failed to cite evidence isolating the mandatory
distribution of 2012 PM ratings as the cause of the alleged
disparity in dismissal of older workers in the RIF. Second, the
Defendants are entitled to summary judgment because the record
shows that Spirit's use of a bell curve distribution in performance
evaluations was a "reasonable factor other than age." Hence, the
Defendants' motion for summary judgment as to the Plaintiffs'
collective termination claim for disparate impact under the ADEA is
accordingly granted.
Finally, as to the pattern-or-practice disparate treatment
failure-to-hire claim, Judge Broomes holds that the Plaintiffs
failed to show a causal connection between Spirit's purported plan
to discriminate and the actual selection of employees for the RIF
through the ratings of individual managers. They fail to
demonstrate any discriminatory intent on Spirit's part in its
application of AP-Hold status to job applications submitted by any
former employees, including them. And the statistical analysis in
combination with the Plaintiffs' other evidence likewise fails to
establish the prima facie case of discrimination required by Int'l
Bhd. Of Teamsters v. United States, 431 U.S. 324, 334-35 (1977).
The Plaintiffs' collective ADEA claims are dismissed on the merits.
The Plaintiffs' individual claims are not at issue in the instant
ruling and remain pending.
A full-text copy of the Court's May 16, 2023 Memorandum & Order is
available at https://rb.gy/f0kvq from Leagle.com.
STATE FARM: Has Until June 22 to File Class Certification Response
------------------------------------------------------------------
In the class action lawsuit captioned as Wiggins, et al., v. State
Farm Mutual Automobile Insurance Company, et al., Case No.
8:21-cv-03803 (D.S.C.), the Hon. Judge Donald C. Coggins, Jr.
entered an order granting joint motion for extension of time to
file response / reply as to motion to certify class.
-- The deadline for Defendants to file June 22,
2023
a response is extended until:
-- The deadline for Plaintiffs to file July 20,
2023
a reply is extended until:
The nature of suit states Contract -- Insurance.
State Farm Insurance is a group of mutual insurance companies
throughout the United States with corporate headquarters in
Bloomington, Illinois. Founded in 1922, it is the largest property,
casualty, and auto insurance provider in the United States.[CC]
STATE FARM: June 22 to File Class Cert Response Sought
------------------------------------------------------
In the class action lawsuit captioned as KRISTOPHER WIGGINS and
BILLY PAUL COBB, on behalf of themselves and all others similarly
situated, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY and
STATE FARM FIRE AND CASUALTY COMPANY, Case No. 8:21-cv-03803-DCC
(D.S.C.), the Parties file a joint motion for extension of time for
State Farm to respond to the Plaintiffs' motion for class
certification and for the Plaintiffs' Reply in support of the
Motion.
-- State Farm's response to the Plaintiffs' Motion is currently
due
on May 19, 2023.
-- State Farm respectfully moves the Court for a 34-day extension
up
to and including June 22, 2023, because counsel needs more
time
to adequately respond to the Plaintiffs' motion, and that the
Plaintiffs' Reply to the Motion be extended to July 20, 2023
for
the same reason.
State Farm offers vehicle, auto, accident, homeowners, condo
owners, renters, life and annuities, fire and casualty, health,
disability, flood, business, and boat insurance products and
services.
A copy of the Plaintiffs' motion dated May 15, 2023 is available
from PacerMonitor.com at https://bit.ly/3C0H6RT at no extra
charge.[CC]
The Plaintiffs are represented by:
Shane W. Rogers, Esq.
Doug Smith, Esq.
JOHNSON, SMITH, HIBBARD &
WILDMAN LAW FIRM, L.L.P.
220 N. Church Street, Suite 4 (29306)
Spartanburg, SC 29304
Telephone: (864) 582-8121
Facsimile: (864) 585-5328
E-mail: srogers@jshwlaw.com
smith@jshwlaw.com
- and -
Hank Bates, III, Esq.
Tiffany Wyatt Oldham, Esq.
Lee Lowther, Esq.
Jake G. Windley, Esq.
CARNEY BATES & PULLIAM, PLLC
519 W. 7th St.
Little Rock, AR 72201
Telephone: (501) 312-8500
Facsimile: (501) 312-8505
E-mail: hbates@cbplaw.com
toldham@cbplaw.com
llowther@cbplaw.com
jwindley@cbplaw.com
- and -
Edmund A. Normand, Esq.
Jacob L. Phillips, Esq.
Joshua R. Jacobson, Esq.
NORMAND PLLC
3165 McCrory Place, Suite 175
Orlando, FL 32803
Telephone: (407) 603-6031
Facsimile: (888) 974-2175
E-mail: ed@normandpllc.com
Jacob.phillips@normandpllc.com
jjacobson@normandpllc.com
ean@normandpllc.com
The Defendants are represented by:
Joshua T. Thompson, Esq.
Perry D. Boulier, Esq.
BOULIER THOMPSON & BARNES, LLC
101 W. St. John St., Suite 300
Spartanburg, SC 29306
Telephone: (864) 606-9610
- and -
Daniel F. Diffley, Esq.
Blake Simon, Esq.
Melissa G. Quintana, Esq.
ALSTON & BIRD LLP
1201 W. Peachtree Street
Atlanta, GA 30309
Telephone: (404) 881-7000
STIFEL NICOLAUS: Krupa Appeals Denial of Remand Bid to 8th Cir.
---------------------------------------------------------------
Plaintiffs Keith M. Krupa, et al., filed an appeal from a district
court's memorandum opinion and order dated May 11, 2023 entered in
the lawsuit entitled KEITH M. KRUPKA, et al., Plaintiffs v. STIFEL
NICOLAUS & CO., INC., Defendant, Case No. 4:23-cv-00049-JAR, in the
United States District Court for the Eastern District of Missouri,
St. Louis.
California Plaintiffs Keith Krupka and Joseph Lee filed this
putative class action in Missouri state court alleging that
Missouri Defendant Stifel Nicolaus made negligent
misrepresentations and was negligent in its underwriting of
municipal bonds issued by the Illinois Finance Authority to fund
low-income housing developments in Chicago.
In late 2018 and early 2019, Plaintiffs purchased bonds with a
total par value of $1.42 million. In April 2019, the bond trustee
notified bondholders of Better Housing Foundation's various
operational breaches under the loan agreements, citing
non-compliance with respect to licensing, permits, zoning and
environmental regulations, tax regulations for low-income housing,
operation and maintenance of the projects, and other violations. In
January 2020, the trustee notified bondholders of BHF's financial
default with respect to various repayment provisions.
In November 2022, Plaintiffs filed this putative class action
asserting claims of negligence and negligent representation,
pleading that, under applicable laws and prevailing industry
practices, Stifel owed a duty to investors to conduct sufficient
investigation to ensure the accuracy and completeness of
representations contained in the Official Statement with respect to
the security of the bonds. The Plaintiffs suggest that Stifel was
negligent in conducting due diligence regarding BHF and real estate
developer Mark DeAngelis and either failed to identify red flags or
knowingly misrepresented the viability of the development both at
the outset and as BHF's problems mounted.
In January 2023, Defendants removed the case to the Eastern
District of Missouri under the Class Action Fairness Act. The
Plaintiffs moved to remand the case, arguing that their claims fall
under CAFA's jurisdictional exception for actions related to
securities.
On May 11, 2023, District Judge John A. Ross entered a Memorandum
Opinion and Order denying Plaintiffs' motion to remand.
The appellate case is captioned as Keith Krupa, et al. v. Stifel,
Nicolaus & Company, Case No. 23-8004, in the United States Court of
Appeals for the Eighth Circuit, filed on May 22, 2023.[BN]
Plaintiffs-Petitioners Keith M. Krupa and Joseph J. Lee,
individually and on behalf of those similarly situated, are
represented by:
James Timothy Francis, Esq.
FRANCIS LAW, LLC
Title Building, Suite 700
300 N. Richard Arrington Jr. Boulevard
Birmingham, AL 35203
Telephone: (205) 251-0252
- and -
Robert A. Horn, Esq.
Joseph A. Kronawitter, Esq.
HORN & AYLWARD
2600 Grand Boulevard, Suite 1100
Kansas City, MO 64108-0000
Telephone: (816) 421-0700
Defendant-Respondent Stifel, Nicolaus & Company, Incorporated is
represented by:
Derick C. Albers, Esq.
Winthrop Blackstone Reed, III, Esq.
LEWIS & RICE
600 Washington Avenue, Suite 2500
Saint Louis, MO 63101
Telephone: (314) 444-7600
SYMETRA LIFE: Filing for Class Certification Bid Due Oct. 10
------------------------------------------------------------
In the class action lawsuit captioned as DENNIS E. DAVIS,
individually and on behalf of all others similarly situated, v.
SYMETRA LIFE INSURANCE COMPANY, Case No. 2:21-cv-00533-TL (Court),
the Hon. Judge Tana Lin entered an order granting stipulation and
joint motion to modify scheduling order as follows:
Event Deadline
All motions related to class discovery July 28, 2023
must be filed by the date:
All motions related to class discovery Aug. 25, 2023
must be noted on the motion calendar no
later than the Friday before discovery
closes pursuant to LCR 7(d) or LCR 37(a)(2):
Class Discovery completed by this date: Aug. 31, 2023
Deadline to file the Plaintiff's motion Oct. 10, 2023
for class certifications and class expert
disclosure:
Deadline for amended pleadings: Oct. 10, 2023
Reports from the Plaintiff's expert witnesses Oct. 10, 2023
under FCP 26(a)(2) for use in support of class
certification:
Deadline to file the Defendant's opposition Dec. 13, 2023
to the Plaintiff's motion for class
certification and any objections to the
Plaintiff's experts:
Settlement Conference, if mediation has been Mar. 15, 2024
requested by the parties per LCR 39.1, held no
later than:
Mediation per LCR 39.1, if requested by Apr. 19, 2024
the parties, held no later than:
Symetra Life provides insurance services. The Company offers
annuities, disability, medical, accidental, and life insurance
services.
A copy of the Court's order dated May 15, 2023 is available from
PacerMonitor.com at https://bit.ly/3MUN6lr at no extra charge.[CC]
The Plaintiff is represented by:
Rebecca Solomon, Esq.
Kim D. Stephens, Esq.
TOUSLEY BRAIN STEPHENS PLLC
1200 Fifth Avenue, Suite 1700
Seattle, WA 98101
Telephone: (206) 682-5600
Facsimile: (206) 682-2992
E-mail: kstephens@tousley.com
rsolomon@tousley.com
- and -
Patrick J. Stueve, Esq.
Lindsay Todd Perkins, Esq.
Ethan M. Lange, Esq.
David A. Hickey, Esq.
STUEVE SIEGEL HANSON LLP
460 Nichols Road Ste. 200
Kansas City, MO 64112
Telephone: (816) 714-7100
Facsimile: (816) 714-7101
E-mail: siegel@stuevesiegel.com
perkins@stuevesiegel.com
lange@stuevesiegel.com
hickey@stuevesiegel.com
- and -
John J. Schirger, Esq.
Matthew W. Lytle, Esq.
Joseph M. Feierabend, Esq.
MILLER SCHIRGER, LLC
4520 Main Street Ste. 1570
Kansas City, MO 64111
Telephone: (816) 561-6500
Facsimile: (816) 561-6501
E-mail: jschirger@millerschirger.com
mlytle@millerschirger.com
jfeierabend@millerschirger.com
The Defendant is represented by:
Laura Geist, Esq.
WILLKIE FARR & GALLAHER LLP
One Front Street
San Francisco, CA 94111
Telephone: (415) 858-7400
Facsimile: (415) 858-7599
E-mail: lgeist@willkie.com
- and -
Medora A. Marisseau, Esq.
KARR TUTTLE CAMPBELL
701 Fifth Ave., Ste. 3300
Seattle, WA 98104
Telephone: (206) 223-1313
Facsimile: (206) 682-7100
E-mail: mmarisseau@karrtuttle.com
SYSCO CORP: Fails to Secure Personal Info, Miller Suit Says
-----------------------------------------------------------
BRYCE MILLER, on behalf of himself and all others similarly
situated, Plaintiff v. SYSCO CORPORATION, Defendant, Case No.
4:23-cv-01845 (S.D. Tex., May 19, 2023) is a class action brought
by the Plaintiff for negligence, breach of implied contract, and
declaratory judgment due to the Defendant's failure to properly
secure and safeguard personal identifiable information of current
and former employees.
The Defendant obtained the PII of Plaintiff and Class Members,
including name, social security number, account numbers or similar
information. On or before March 5, 2023, the Defendant learned of a
data breach on its network that occurred on January 14, 2023. The
PII was compromised due to Defendant's negligent and/or careless
acts and omissions and the failure to protect the PII of Plaintiff
and Class Members. The Defendant has also purposefully maintained
secret the specific vulnerabilities and root causes of the breach
and has not informed Plaintiff and Class Members of that
information, says the suit.
The Plaintiff brings this action on behalf of all similarly
situated employees whose PII was compromised as a result of
Defendant's failure to: (i) adequately protect the PII of Plaintiff
and Class Members; (ii) warn Plaintiff and Class Members of
Defendant's inadequate information security practices; and (iii)
effectively secure hardware containing protected PII using
reasonable and effective security procedures free of
vulnerabilities and incidents.
Sysco Corporation sells, markets and distributes a range of food
and non-food products.[BN]
The Plaintiff is represented by:
John A. Yanchunis, Esq.
Ryan D. Maxey, Esq.
MORGAN & MORGAN PA
201 N. Franklin Street, 7th Floor
Tampa, FL 33602
Telephone: (813) 223-5505
E-mail: jayanchunis@ForThePeople.com
rmaxey@ForThePeople.com
SYSCO CORP: Trottier Sues Over Failure to Secure Personal Info
--------------------------------------------------------------
JOSEPH TROTTIER, individually and on behalf of all others similarly
situated, Plaintiff v. SYSCO CORPORATION, Defendant, Case No.
4:23-cv-01818 (S.D. Tex., May 17, 2023) is a class action against
the Defendant for negligence, breach of implied contract, unjust
enrichment, breach of confidence, and declaratory judgment due to
its failure to properly secure and safeguard personal identifiable
information of more than 71,000 individuals.
According to the complaint, the Defendant obtained the PII of
Plaintiff and Class Members and stored it unencrypted in an
Internet-accessible environment on Defendant's network. On or
before March 5, 2023, Defendant learned of a data breach on its
network that occurred on January 14, 2023 to March 5, 2023. On May
3, 2023, Defendant began notifying Plaintiff and Class Members of
the data breach with an internal memo and on May 5, 2023 with a
notice mailed to Plaintiff and Class Members. The PII was
compromised due to Defendant's negligent and/or careless acts and
omissions and the failure to protect the PII of Plaintiff and Class
Members, the suit asserts.
The Plaintiff brings this action on behalf of all persons whose PII
was compromised as a result of Defendant's failure to: (i)
adequately protect the PII of Plaintiff and Class Members; (ii)
warn Plaintiff and Class Members of Defendant's inadequate
information security practices; and (iii) effectively secure
hardware containing protected PII using reasonable and effective
security procedures free of vulnerabilities and incidents.
Sysco Corporation sells, markets and distributes a range of food
and non-food products.[BN]
The Plaintiff is represented by:
Joe Kendall, Esq.
KENDALL LAW GROUP, PLLC
3811 Turtle Creek Blvd., Suite 1450
Dallas, TX 75219
Telephone: (214) 744-3000
Facsimile: (214) 744-3015
E-mail: jkendall@kendalllawgroup.com
- and -
Gary Klinger, Esq.
MILBERG COLEMAN BRYSON PHILLIPS GROSSMAN, PLLC
227 W. Monroe Street Suite 2100
Chicago, IL 60606
Telephone: (866) 252-0878
E-mail: gklinger@milberg.com
- and -
Brandon M. Wise, Esq.
PEIFFER WOLF CARR KANE CONWAY & WISE, LLP
818 Lafayette Ave., Floor 2
St. Louis, MO 63104
Telephone: (314) 833-4825
E-mail: bwise@peifferwolf.com
TESTING HOLLYWOOD: Novak Sues Over Unlawful Labor Practices
-----------------------------------------------------------
PETR NOVAK, individually and on behalf of the State of California
and other aggrieved employees, Plaintiff v. TESTING HOLLYWOOD,
INC.; MARLA FIDLER; MARTHA DAVIS; and DOES 1 through 100,
inclusive, Defendants, Case No. 23STCV11288 (Cal. Super., Los
Angeles Cty., May 19, 2023) is brought against the Defendants
pursuant to the California Private Attorneys General Act,
California Labor Code and California Business and Professions Code,
due to their unlawful labor policies and practices.
The Plaintiff alleges the Defendants' failure to pay minimum wages,
failure to pay overtime wages, failure to timely pay wages during
employment, failure to timely pay wages upon termination, failure
to provide meal and rest periods, failure to provide accurate wage
statements, failure to indemnify for business expenses, unfair
competition, and misclassification of employee as "independent
contractor."
The Plaintiff was hired by the Defendants as a testing nurse in
June 2021. The Plaintiff's duties include administering nose swab
PCR and Rapid Tests and sometimes handling samples to be taken to
independent laboratories for analysis.
Testing Hollywood, Inc. is a COVID testing and rapid testing center
based in California.[BN]
The Plaintiff is represented by:
Aidin D. Ghavimi, Esq.
Ilana N. Fine, Esq.
STARPOINT, LC
15233 Ventura Boulevard, Suite PH16
Sherman Oaks, CA 91403
Telephone: (310) 424-9971
Facsimile: (424) 255-4035
TETRA TECH: Filing of Class Certification Bid Due June 16
---------------------------------------------------------
In the class action lawsuit captioned as LINDA PARKER PENNINGTON,
et al., v. TETRA TECH EC, INC., et al., Case No. 3:18-cv-05330-JD
(N.D. Cal.), the Parties stipulate that the briefing schedule
proceed as follows:
1. Deadline to file Motion for Class June 16, 2023
Certification:
2. Deadline to file Opposition to September 1, 2023
Motion for Class Certification:
3. Deadline to file Reply in Support October 27, 2023
of Motion for Class Certification:
4. Hearing on Motion for Class November 16, 2023
Certification:
Tetra Tech provides business consulting services.
A copy of the Parties' motion dated May 12, 2023, is available from
PacerMonitor.com at https://bit.ly/3Ouyvyw at no extra charge.[CC]
The Defendants are represented by:
Davina Pujari, Esq.
Christopher A. Rheinheimer, Esq.
Christopher T. Casamassima, Esq.
WILMER CUTLER PICKERING
HALE AND DORR LLP
1 Front Street, Suite 3500
San Francisco, CA 94111
Telephone: (628) 235-1002
Facsimile: (628) 235-1001
E-mail: davina.pujari@wilmerhale.com
chris.rheinheimer@wilmerhale.com
chris.casamassima@wilmerhale.com
TORRANCE MEMORIAL: Appeals Remand Order in Doe Suit to 9th Cir.
---------------------------------------------------------------
TORRANCE MEMORIAL MEDICAL CENTER is taking an appeal from a court
order granting the Plaintiff's motion to remand the lawsuit
entitled Jane Doe, individually and on behalf of all others
similarly situated, Plaintiff, v. Torrance Memorial Medical Center,
Defendant, Case No. 1:22-cv-00052-JAO-WRP, in the U.S. District
Court for the Western District of Washington.
On Jan. 1, 2023, the Plaintiff filed a class action lawsuit in
California Superior Court on behalf of herself and all other
similarly situated California citizens who had their highly
sensitive personal information disclosed to Facebook without their
knowledge or consent. Doe alleges that Torrance promises patients
and prospective patients that it will not disclose their Health
Information for marketing purposes without their written
authorization, but contrary to these assurances, Torrance does not
follow the law prohibiting such disclosures.
Doe alleges that since at least 2017, Torrance has disclosed
protected health information to Facebook and other third parties
without patients' knowledge authorization, or consent. Torrance has
deployed various digital marketing and automatic rerouting tools
embedded on its websites that purposefully and intentionally
redirect personal health information to Facebook, who exploits that
information for advertising purposes.
On Feb. 17, 2023, Torrance removed the case pursuant to 28 U.S.C.
Section 1442(a)(1), the federal officer removal statute. Doe moved
to remand the action to the Superior Court of California, County of
Los Angeles. Torrance opposed. Judge Fischerd deemed this matter
appropriate for decision without oral argument.
Torrance asserts that over the past two decades, the federal
government has engaged in an extensive effort to build a nationwide
health information technology infrastructure, and the case
challenges the legitimacy of actions it has taken in connection
with pursuing that directive. Torrance contends that it has
dutifully assisted and followed the federal government's direction
in a public-private initiative to develop a nationwide
infrastructure for health information technology, and in doing so,
has acted within the penumbra of federal action and office. It
argues that it qualifies as a "person" under the statute and
effectively acted under a federal officer.
Doe asks the Court to reject Torrance's attempt to expand the
federal officer removal statute. She argues that Torrance is not
effectively acting under a federal officer and is not acting on
behalf of a federal officer in a manner akin to an agency
relationship. She contends that providing patient records is a
private function, not a governmental task, and mere regulation or
incentive through the MUP cannot turn a private hospital into an
entity acting under a federal officer.
Judge Fischerd held that a private firm's compliance (or
noncompliance) with federal laws, rules, and regulations does not
by itself fall within the scope of the statutory phrase 'acting
under' a federal 'official.' And that is so even if the regulation
is highly detailed and even if the private firm's activities are
highly supervised and monitored. Courts may not interpret Section
1442(a) to expand the scope of the statute considerably,
potentially bringing within its scope state-court actions filed
against private firms in many highly regulated industries. The
directions Torrance points to are general regulations and public
directives regarding the development of health information
technology and an electronic health records infrastructure.
Therefore, removal is not justified by federal officer
jurisdiction, ruled Judge Fischerd.
For these reasons, the motion to remand was granted and the case
was remanded to the Superior Court of California, County of Los
Angeles.
The appellate case is captioned Jane Doe v. Torrance Memorial
Medical Center, Case No. 23-35336, in the United States Court of
Appeals for the Ninth Circuit, filed on May 15, 2023.
The briefing schedule in the Appellate Case states that:
-- Appellant Torrance Memorial Medical Center Mediation
Questionnaire was due on May 22, 2023;
-- Appellant Torrance Memorial Medical Center opening brief is
due on July 11, 2023;
-- Appellee Jane Doe answering brief is due on August 10, 2023;
and
-- Appellant's optional reply brief is due 21 days after service
of the answering brief. [BN]
Plaintiff-Appellee JANE DOE, individually and on behalf of all
others similarly situated, is represented by:
Michael Allen Caddell, Esq.
Cynthia B. Chapman, Esq.
Amy E. Tabor, Esq.
CADDELL & CHAPMAN
628 E. 9th Street
Houston, TX 77007
Telephone: (713) 751-0400
- and -
Lee A. Sherman, Esq.
CALLAHAN, THOMPSON, SHERMAN & CAUDILL, LLP
2601 Main Street, Suite 800
Irvine, CA 92614
Telephone: (714) 730-5700
Defendant-Appellant TORRANCE MEMORIAL MEDICAL CENTER is represented
by:
Teresa Carey Chow, Esq.
BAKER & HOSTETLER, LLP
11601 Wilshire Boulevard, Suite 1400
Los Angeles, CA 90025
Telephone: (310) 820-8800
- and -
Alexander Vitruk, Esq.
BAKER & HOSTETLER LLP
999 3rd Avenue, Suite 3900
Seattle, WA 98104
Telephone: (206) 566-7092
TRI-BOROUGH CERTIFIED: Appeals Class Cert. Ruling in Rodriguez Suit
-------------------------------------------------------------------
TRI-BOROUGH CERTIFIED HOME CARE LTD. et al., filed an appeal from a
court ruling entered in the lawsuit entitled Anyely Rodriguez,
individually and on behalf of all other persons similarly situated
v. Tri-Borough Certified Home Care Ltd. et al., Case No.
152047/2018, in the New York Supreme Court, New York County.
As reported in the Class Action Reporter, the lawsuit, filed on
March 7, 2018, seeks to recover wages under the New York Labor Law.
On April 11, 2023, the Court entered an Order wherein Plaintiff's
motion for class certification was granted, and the cross-motion by
Defendants Tri-Borough Certified Home Care Ltd. and Tri-Borough
Certified Health Systems of New York, LLC d/b/a Family Care
Certified Services, to dismiss the complaint as against them was
denied.
Defendant Tri-Borough Certified Home Care Ltd. seeks a review of
this order.
The appellate case is captioned as ANYELY RODRIGUEZ et al. vs.
TRI-BOROUGH CERTIFIED HOME CARE LTD. et al., Case No. 2023-02569,
in the Supreme Court of the State of New York, Appellate Division,
First Judicial Department, filed on May 22, 2023.[BN]
Defendants-Petitioners TRI-BOROUGH CERTIFIED HOME CARE LTD. et al.,
are represented by:
David S. Friedberg, Esq.
521 5th Ave Fl. 17
New York, NY 10175-1799
Telephone: (212) 947-7291
TRUMBULL INSURANCE: Allowed Leave to Oppose Goble Class Cert Bid
----------------------------------------------------------------
In the class action lawsuit captioned as JOHN GOBLE, et al., v.
TRUMBULL INSURANCE COMPANY, Case No. 2:20-cv-05577-SDM-CMV (S.D.
Ohio), the Hon. Judge Chelsey M. Vascura entered an order granting
the Defendant's unopposed motion for leave to file class
certification opposition materials in redacted form to the extent
they refer to items already under seal and/or redacted.
The Defendant represents that portions of its forthcoming
opposition brief to the Plaintiffs' motion for class certification
include information relating to confidential claims and estimate
data, claims volumes, claims statistics, claims estimating data,
claims payment data, and other materials that the Court has already
granted leave to file under seal.
The Defendant shall file its forthcoming opposition brief and
associated exhibits under seal. However, the Court is mindful that
sealing of documents should be narrowly tailored and no broader
than necessary. Accordingly, the Defendant shall also, within
fourteen days of filing their opposition brief to the Plaintiff's
Motion for Class Certification, file a redacted version of the
opposition brief and associated exhibits on the public docket,
redacting only that information constituting the confidential and
proprietary information as described in the Defendant’s Motion.
Trumbull provides fire and casualty insurance services.
A copy of the Court's order dated May 12, 2023, is available from
PacerMonitor.com at https://bit.ly/42W4cFg at no extra charge.[CC]
UCOR LLC: Must File Amended Response to Class Cert by July 12
---------------------------------------------------------------
In the class action lawsuit captioned as CARLTON SPEER, MALENA
DENNIS, and ZACHARIAH DUNCAN, individually and on behalf of all
others similarly situated, v. UCOR LLC, Case No.
3:22-cv-00426-TRM-JEM (E.D. Tenn.), the Hon. Judge Travis R.
McDonough entered an order amending class-certification briefing
deadlines:
-- The Defendant may file an amended response on or before July
12,
2023, based on any interim discovery it takes material to
class
certification.
-- The Plaintiffs may file a reply in further support of their
motion for class certification on or before July 19, 2023.
-- All other provisions of the scheduling order shall remain
in effect.
UCOR is an environmental cleanup contractor.
A copy of the Court's order dated May 12, 2023, is available from
PacerMonitor.com at https://bit.ly/3MSnoOs at no extra charge.[CC]
UINTAH BASIN: Keasler Sues Over Failure to Secure Personal Info
---------------------------------------------------------------
MANDY KEASLER, on behalf of herself, her minor son, A.K., and all
others similarly situated, Plaintiffs v. UINTAH BASIN HEALTHCARE
d/b/a UINTAH BASIN MEDICAL CENTER, Defendant, Case No.
2:23-cv-00323-TC (D. Utah, May 19, 2023) is a class action against
the Defendant for negligence, negligence per se, breach of implied
contract, unjust enrichment, and breach of confidence due to its
failure to properly secure and safeguard Plaintiffs' and other
similarly situated current and former Uintah patients' personally
identifiable information and protected health information.
On May 10, 2023, Uintah sent out data breach letters to individuals
whose information was compromised as a result of a hacking
incident. Based on the notice sent to victims, including
Plaintiffs, unusual activity was detected on Defendant's network
around November 7, 2022. Uintah's investigation revealed that an
unauthorized party may have accessed and acquired Plaintiff's and
Class Members' private information as a result, yet Uintah waited
roughly six months to notify them that they were at risk, says the
suit.
The complaint asserts that Uintah and its employees failed to
properly implement security practices with regard to the computer
network and systems that housed the private information. The
Plaintiffs' and Class Members' identities are now at risk because
of Uintah's negligent conduct as the private information that
Uintah collected and maintained is now in the hands of data thieves
and other unauthorized third parties, the suit contends.
Uintah Basin Healthcare, d/b/a Uintah Basin Medical Center, is a
Utah corporation and a healthcare system.[BN]
The Plaintiffs are represented by:
Jason R. Hull, Esq.
MARSHALL OLSON & HULL, PC
Ten Exchange Place, Suite 350
Salt Lake City, UT 84111
Telephone: (801) 456-7655
E-mail: jhull@mohtrial.com
- and -
Mason A. Barney, Esq.
Tyler J. Bean, Esq.
SIRI & GLIMSTAD LLP
745 Fifth Avenue, Suite 500
New York, NY 10151
Telephone: (212) 532-1091
E-mail: mbarney@sirillp.com
tbean@sirillp.com
UNION PACIFIC: Class Cert. Discovery Cut−Off Set for June 4, 2024
-------------------------------------------------------------------
In the class action lawsuit captioned as MELVIN DIXON, v. UNION
PACIFIC RAILROAD COMPANY, et al., Case No. 2:23-cv-02183-DSF-MAR
(C.D. Cal.), the Hon. Judge Dale S. Fischer entered an order
regarding class certification deadlines as follows:
-- Motion to Amend Pleadings or Add March 18, 2024
Parties Cut-off:
-- Discovery Cut−Off: June 4, 2024
-- Expert Witness Exchange Deadline:
Initial: March 1, 2024
Rebuttal: March 15, 2024
Cut−off: June 4, 2024
-- Motion Hearing Cut−off: July 29, 2024
-- ADR Cut−off: Aug. 13, 2024
-- Trial Documents (Set Two): Sept. 17, 2024
-- Trial Documents (Set Two): Sept. 24, 2024
-- Final Pre-Trial Conference: Oct. 7, 2024
-- Trial Date: Nov. 5, 2024
Union Pacific is a freight-hauling railroad that operates 8,300
locomotives over 32,200 miles routes in 23 U.S. states west of
Chicago and New Orleans.
A copy of the Court's order dated May 15, 2023 is available from
PacerMonitor.com at https://bit.ly/3BVFkSe at no extra charge.[CC]
UNITED CAPITAL: Settlement in Carollo Suit Wins Prelim. Approval
----------------------------------------------------------------
Judge David N. Hurd of the U.S. District Court for the Northern
District of New York issued an order granting preliminary approval
of class action settlement and directing class notice in the
lawsuit titled DEANNA CAROLLO, on behalf of themselves and all
other employees similarly situated, and DIANA J. OWENS, on behalf
of themselves and all other employees similarly situated,
Plaintiffs v. UNITED CAPITAL CORP., AFP MANAGEMENT CORP., and AFP
101 CORP., Defendants, Case No. 6:16-CV-13 (N.D.N.Y.).
On Jan. 5, 2016, Named Plaintiffs Deanna Carollo and Diana J. Owens
filed this putative collective action alleging that Defendants
United Capital Corp., AFP Management Corp., and AFP 101 Corp.
violated the Fair Labor Standards Act ("FLSA") and New York Labor
Law ("NYLL") by, inter alia, failing to properly compensate the
Named Plaintiffs and other similarly situated service workers for
certain time worked at the Radisson Hotel-Utica Centre in Utica,
New York.
On Feb. 16, 2023, after years of litigation punctuated by sharply
contested motion practice, and with the involvement of two
experienced mediators over three sessions, the parties finally
notified the Court that they had reached a settlement in
principle.
The Named Plaintiffs have moved for: (1) certification of the
proposed settlement classes; (2) preliminary approval of the
parties' settlement agreement; (3) approval of the proposed class
notice; (4) an Order scheduling a Final Approval Hearing and
related deadlines.
Judge Hurd grants the unopposed motion for preliminary approval of
the class action settlement. The Court finds, on a preliminary
basis, the settlement memorialized in the parties' Settlement
Agreement falls within the range of reasonableness and, therefore,
meets the requirements for preliminary approval as required by
Federal Rule of Civil Procedure 23(e) and other applicable laws.
For settlement purposes only, the following Settlement classes are
certified pursuant to the Settlement Agreement and FED. R. CIV. P.
23:
-- Banquet Class: all hourly banquet employees, including but
not limited to, job titles such as banquet servers,
bartenders, and captains, who worked at the Hotel during
the period of time between January 5, 2010 through
March 24, 2021. For the avoidance of any doubt, an
individual is only a Banquet Class Member if such person
has a period of time in which he or she worked as an hourly
banquet employee during the Banquet Class Relevant Time
Period according to Defendants' records. Any member of the
Banquet Class is automatically also part of the Hourly
Employee Classes and can also qualify to be in the
Restaurant Class;
-- Restaurant Class: all tipped employees who worked at the
restaurant located in the Hotel during the Restaurant Class
Relevant Time Period. For the avoidance of any doubt, an
individual is only a Restaurant Class Member if such person
has a period of time in which he or she worked as a tipped
restaurant employee during the period of time between
January 5, 2010 through March 24, 2021 according to
Defendants' records. Any member of the Banquet Class is
automatically also part of the Hourly Employee Classes and
can also qualify to be in the Restaurant Class; and
-- Hourly Employee Class: all hourly employees who worked at
the Hotel during the period of time between April 9, 2011
through March 24, 2021. For the avoidance of any doubt, an
individual is only an Hourly Employees Class Member if such
person has a period of time in which he or she worked as an
hourly non-tipped employee during the Hourly Employee
Relevant Time Period according to Defendants' records.
The Settlement classes exclude all Class Members, who timely and
validly request exclusion from the Class.
The Court finds that the Named Plaintiffs are adequate Class
Representatives for the Settlement, and that Thomas & Solomon LLP,
whom this Court previously appointed as Class Counsel, remains
qualified and able to litigate the claims in this matter. The Court
further appoints Black & Buffone PLLC as Class Counsel for
settlement purposes under Rule 23(a)(4) upon a finding that counsel
is well-qualified and experienced.
The Court appoints as Claims Administrator the designated claims
administrator agreed to by the parties and directs the Claims
Administrator to perform all the duties of the Claims Administrator
as set forth in the Settlement Agreement and this Order.
The Court approves the Notice and Claim Form, attached as Exhibit 1
to the Settlement Agreement, and the plan for settlement
administration.
The Court directs that, collectively, the Notice and the plan for
settlement administration will be referred to as the "Notice
Program," and the parties may, by agreement, revise the Notice and
Claim Form in ways that are not material, or in ways that are
appropriate to update those documents for purposes of accuracy or
formatting.
Within seven days of the entry of the Preliminary Approval Order,
the Defense Counsel will provide Class Counsel and the Claims
Administrator with the Class Members Lists in Microsoft Excel
format.
Class Members, who wish to receive benefits under the Settlement
Agreement, must complete and submit a valid Claim Form. The
deadline to submit a Claim Form is forty-five days after the
initial mailing of the Notice.
Class Members, who wish to exclude themselves from the Class for
purposes of this Settlement, may do so by submitting an opt-out
request to the Claims Administrator prior to the opt-out deadline
to be specified in the Notice of Settlement, which date will be
forty-five days from the date the Notice of Settlement is scheduled
to be mailed by the Claims Administrator.
Class Members will be bound by all determinations and judgments
concerning the Action and/or Settlement Agreement, whether
favorable or unfavorable.
All case deadlines are stayed and suspended until further notice
from the Court, except for such actions as are necessary to
implement the Settlement Agreement and this Order.
Counsel for the Parties are authorized to utilize all reasonable
procedures in connection with the administration of the Settlement
that are not materially inconsistent with this Order or the terms
of the Settlement Agreement.
A Final Approval Hearing will be held on Monday, Aug. 7, 2023, at
1:00 p.m. in Utica, New York, or by videoconference or telephonic
means.
The Clerk of the Court is directed to set deadlines accordingly and
terminate the pending motion.
A full-text copy of the Court's Order dated May 8, 2023, is
available at https://tinyurl.com/ycxfwb8n from Leagle.com.
UNITED COLLECTION: Starnes Suit Removed to M.D. Tennessee
---------------------------------------------------------
The case styled as Kizzy Starnes, on behalf of herself and all
other similarly situated individuals v. United Collection Bureau,
Inc., Case No. 23cv-113 was removed from the Circuit Court
Williamson County, to the U.S. District Court for Middle District
of Tennessee on May 22, 2023.
The District Court Clerk assigned Case No. 3:23-cv-00521 to the
proceeding.
The nature of suit is stated as Consumer Credit.
United Collection Bureau (UCB) -- https://ucbinc.com/ -- is one of
the largest contingency collection agencies in the United
States.[BN]
The Plaintiff is represented by:
Tim O. Henshaw, Esq.
THE HENSHAW FIRM, LLC
826 Chickamauga Ave
Rossville, GA 30741
Phone: (423) 475-2700
Email: tim@bearclawinjury.com
The Defendant is represented by:
Pamela Bagley Webb, Esq.
GORDON & REES SCULLY MANSUKHANI LLP (NASHVILLE)
4031 Aspen Grove Drive, Suite 290
Franklin, TN 37067
Phone: (615) 772-9022
Fax: (615) 970-7490
Email: pwebb@grsm.com
UNITED STATES: All Pending Deadlines Stayed Until Nov. 10
---------------------------------------------------------
In the class action lawsuit captioned as BERNARDO SANCHEZ JIMENEZ,
et al., v. DEPARTMENT OF HOMELAND SECURITY, et al., Case No.
2:22-cv-00967-SSS-JPR (C.D. Cal.), the Hon. Judge Sunshine S. Sykes
entered an order to stay case as follows:
1. This case and all pending deadlines, including discovery
deadlines, are stayed until November 10, 2023.
2. Either party may file a motion to reopen and lift the stay at
any time. Within seven days after the filing of such a
motion,
the parties shall confer and agree on proposed deadlines for
the
completion of pre-class-certification discovery and for the
filing of class certification briefs.
3. If the stay remains active on September 22, 2023, and if the
parties have not filed a joint motion or stipulation to
dismiss
this case on or before that date, then on September 22, 2023,
the parties shall file a joint status report advising the
Court
of the status of the settlement-approval process.
The United States Department of Homeland Security is the U.S.
federal executive department responsible for public security,
roughly comparable to the interior or home ministries of other
countries.
A copy of the Court's order dated May 12, 2023, is available from
PacerMonitor.com at https://bit.ly/3q37DeX at no extra charge.[CC]
UNITED STATES: Brickman Seeks More Time to File Writ of Certiorari
------------------------------------------------------------------
COLIN R. BRICKMAN filed a request with the Supreme Court of United
States for an extension of time within which to file a petition for
a writ of certiorari in the lawsuit styled Colin R. Brickman,
individually and on behalf of all others similarly situated,
Plaintiff v. United States, et al., Defendants, Case No.
3:16-cv-00751.
The judgment for which review is sought is the decision of the
United States Court of Appeals for the Ninth Circuit in the case
captioned as Colin R. Brickman, individually and on behalf of all
others similarly situated, Applicant vs. United States, et al.,
Case No. 22A1005.
The Plaintiff brought this lawsuit against the Defendants for
alleged violation of the Telephone Consumer Protection Act (TCPA)
by sending unsolicited text messages to consumers' cell phones.
[BN]
Plaintiff-Petitioner Colin R. Brickman, individually and on behalf
of all others similarly situated, is represented by:
Patrick Joseph Perotti, Esq.
DWORKEN & BERNSTEIN CO., LPA
60 South Park Place
Painesville, OH 44077
E-mail: pperotti@dworkenlaw.com
Defendants-Respondents UNITED STATES, et al. are represented by:
Elizabeth B. Prelogar, Esq.
UNITED STATES DEPARTMENT OF JUSTICE
950 Pennsylvania Avenue, NW
Washington, DC 20530
E-mail: supremectbriefs@usdoj.gov
UNITED STATES: NVLSP Wins Revised Bid for Prelim. Settlement Nod
----------------------------------------------------------------
Senior District Judge Paul L. Friedman of the U.S. District Court
for the District of Columbia grants the Plaintiffs' revised motion
for preliminary approval of class settlement in the lawsuit
entitled NATIONAL VETERANS LEGAL SERVICES PROGRAM, NATIONAL
CONSUMER LAW CENTER, and ALLIANCE FOR JUSTICE, for themselves and
all others similarly situated, Plaintiffs v. UNITED STATES OF
AMERICA, Defendant, Case No. 1:16-cv-00745-PLF (D.D.C.).
After a preliminary review, Judge Friedman finds that the
Settlement appears to be fair, reasonable, and adequate.
Accordingly, the Court preliminarily approves the Settlement,
subject to further consideration at the Settlement Hearing to be
held on Oct. 12, 2023, at 10:00 a.m.
The Court will consider comments or objections to the Settlement or
the request for fees and expenses, only if such comments or
objections and any supporting papers are submitted to the Court at
least thirty days prior to the Settlement Hearing, according to the
procedure described in the website notice. Attendance at the
Settlement Hearing is not necessary, but any person wishing to be
heard orally in opposition to the Settlement is required to
indicate in their written objection whether they intend to appear
at the Settlement Hearing.
All opening briefs and documents in support of the Settlement and
any fee and expense application, will be filed no later than 45
days before the Settlement Hearing. Replies to any objections will
be filed at least nine days prior to the Settlement Hearing.
Judge Friedman holds that the revised Settlement Class satisfies
Rule 23 of the Federal Rules of Civil Procedure and is certified
for the same reasons set forth in the Court's prior class
certification order. The Settlement Class is defined as:
All persons or entities who paid PACER Fees between
April 21, 2010 and May 31, 2018, excluding persons or
entities that have already opted out, federal agencies, and
Class Counsel.
The notice documents advising the previously certified Class
Members ("Initial Class Members") of the Settlement are approved as
to form and content. The notice documents advising the Additional
Class Members of the Settlement and providing for opt-out rights
are approved as to form and content. The long-form website notice
advising the Class Members of the Settlement and providing for
opt-out rights for the Additional Class Members is approved as to
form and content. The publication notice advising the Class Members
of the Settlement and providing for opt-out rights for the
Additional Class Members is approved as to form and content.
The firm of KCC Class Action Services LLC ("KCC" or
"Administrator") is appointed to supervise and administer the
notice procedure.
To the extent they are not already produced, within 14 days from
the entry of this order, Judge Friedman directs the Defendant to
produce to the Plaintiffs the names, postal addresses, email
addresses, phone numbers, PACER-assigned account numbers, and firm
name of all individuals or entities with a PACER account that paid
PACER fees during the class period ("Notice Data").
The Additional Class Members can ask to be excluded from the
settlement by: (1) sending an Exclusion Request in the form of a
letter; (2) completing and submitting the online Exclusion Request
form; or (3) sending an Exclusion Request form by mail. Ninety days
after the entry of this order, the opt-out period for the
Additional Class Members will expire.
Class Members can object to the Settlement or the request for fees
and expenses by submitting their comments or objections and any
supporting papers to the United States District Court for the
District of Columbia, according to the procedure described in the
website notice. Such comments or objections must be submitted at
least 30 days prior to the settlement hearing. Any response by the
United States to the Plaintiffs' request for fees and expenses, as
reserved in paragraph 28 of the Settlement Agreement, must be
submitted at least 30 days prior to the settlement hearing.
The Court finds that the dissemination of the notice under the
terms and in the forms provided for constitutes the best notice
practicable under the circumstances, that it is due and sufficient
notice for all purposes to all persons entitled to such notice, and
that it fully satisfies the requirements of due process and all
other applicable laws.
A full-text copy of the Court's Order dated May 8, 2023, is
available at https://tinyurl.com/mryphmbw from Leagle.com.
UNUM GROUP: Appeals Class Certification Order in Loomis Suit
------------------------------------------------------------
UNUM GROUP CORPORATION is taking an appeal from a court order
granting the Plaintiffs' motion for class certification and denying
its motion to decertify the class in the lawsuit entitled Kerry Ann
Loomis, et al., individually and on behalf of all others similarly
situated, Plaintiffs, v. Unum Group Corporation, Defendant, Case
No. 1:20-cv-00251, in the U.S. District Court for the Eastern
District of Tennessee.
As previously reported in the Class Action Reporter, the case
arises from the Defendant's failure to compensate its claims
examination employees overtime pay for all hours worked in excess
of 40 hours in a workweek due to their misclassification as exempt
from the overtime provisions of the Fair Labor Standards Act and
the Maine Wage and Hour Law.
On Nov. 4, 2022, the Defendant filed a motion to decertify the
class. On same day, the Plaintiffs filed a motion for class
certification.
On May 4, 2023, the Court granted the Plaintiffs' motion for class
certification and denied the Defendant's motion to decertify the
class through an Order entered by Judge Curtis L. Collier.
The appellate case is captioned In re: Unum Group Corporation, Case
No. 23-0503, in the United States Court of Appeals for the Sixth
Circuit, filed on May 16, 2023. [BN]
Plaintiffs-Respondents KERRY ANN LOOMIS, et al., individually and
on behalf of all others similarly situated, are represented by:
Melody L. Fowler-Green, Esq.
Nicholas C. Teeples, Esq.
YEZBAK LAW OFFICES
2002 Richard Jones Road, Suite 200
Nashville, TN 37216
Telephone: (615) 250-2000
Defendant-Petitioner UNUM GROUP CORPORATION is represented by:
Charles B. Lee, Esq.
Robert Foust Parsley, Esq.
MILLER & MARTIN
832 Georgia Avenue, Suite 1200
Chattanooga, TN 37402
Telephone: (423) 756-6600
VENEZUELA: PDVSA Appeals Ruling in Rusoro Suit to 3rd Circuit
-------------------------------------------------------------
PETROLEOS DE VENEZUELA SA (PDVSA) is taking an appeal from a court
order in the lawsuit entitled Rusoro Mining Limited, on behalf of
itself and all others similarly situated, Plaintiff, v. Bolivarian
Republic of Venezuela, Defendant, Case No. 1-21-mc-00481, in the
U.S. District Court for the District of Delaware.
On Feb. 9, 2022, the Plaintiff filed a motion for a conditional
order authorizing the issuance of a writ of attachment fieri
facias, to which Judge Leonard P. Stark issued his ruling on Mar.
23, 2023.
To prevail on its motion, Rusoro must prove that, at the pertinent
time, PDVSA was and/or is the alter ego of Venezuela.
Having considered the evidence and arguments, Judge Stark decided
to grant the motion. The Court held that Rusoro has proven, by a
preponderance of the evidence, that PDVSA has been and is the alter
ego of Venezuela, at all pertinent times, including from August
2018 through at least October 13, 2022. The record before the Court
establishes that the Guaido Government exercises direction and
control over PDVSA in the United Stales while the Maduro Regime
exercises direction and control over PDVSA inside Venezuela.
The Court ordered the parties to meet and confer and provide their
positions on how the Court should now proceed.
The appellate case is captioned Rusoro Mining Limited v. Bolivarian
Republic of Venezuela, Case No. 23-1650, in the United States Court
of Appeals for the Third Circuit, filed on Apr. 11, 2023. [BN]
Plaintiff-Appellee RUSORO MINING LTD., individually and on behalf
of all others similarly situated, is represented by:
James E. Berger, Esq.
DLA Piper
1251 Avenue of the Americas, 27th Floor
New York, NY 10020
Telephone: (212) 335-4500
- and -
Robert C. Martin, Esq.
DLA Piper
1201 N. Market Street, Suite 2100
Wilmington, DE 19801
Defendant-Intervenor BOLIVARIAN REPUBLIC OF VENEZUELA is
represented by:
Ginger D. Anders, Esq.
Elaine J. Goldenberg, Esq.
Donald B. Verrilli, Jr., Esq.
Sarah Weiner, Esq.
MUNGER TOLLES & OLSON
601 Massachusetts Avenue NW, Suite 500e
Washington, DC 20001
Telephone: (202) 220-1107
(202) 220-1100
(202) 220-1141
Intervenor-Appellant PETROLEOS DE VENEZUELA SA is represented by:
Jamie L. Brown, Esq.
Samuel Taylor Hirzel, II, Esq.
Aaron M. Nelson, Esq.
HEYMAN ENERIO GATTUSO & HIRZEL
300 Delaware Avenue, Suite 200
Wilmington, DE 19801
Telephone: (302) 472-7318
(302) 472-7315
(302) 472-7312
- and -
Aubre Dean, Esq.
Kevin A. Meehan, Esq.
Juan O. Perla, Esq.
Joseph D. Pizzurro, Esq.
Allesandra D. Tyler, Esq.
CURTIS MALLET-PREVOST COLT & MOSLE
101 Park Avenue, 34th floor
New York, NY 10178
Telephone: (212) 696-6037
(212) 696-6197
(212) 696-6084
(212) 696-6000
(248) 884-2573
WEGMANS FOOD: Filing of Class Status Bid Extended to August 1
-------------------------------------------------------------
In the class action lawsuit captioned as THOMAS LOEPER, JR., on
behalf of himself and others similarly situated, v. WEGMANS FOOD
MARKETS, INC., Case No. 3:22-cv-02044-MEM (M.D. Pa.), the Hon.
Judge Malachy E. Mannion entered an order that the deadline for the
Plaintiff for move for class certification under Rule 23 is
extended to August 1, 2023.
Wegmans Food is a privately held American supermarket chain.
A copy of the Court's order dated May 15, 2023 is available from
PacerMonitor.com at https://bit.ly/3WvUas2 at no extra charge.[CC]
WEGMANS FOOD: Parties Seeks Extension of Class Cert Bid Deadline
----------------------------------------------------------------
In the class action lawsuit captioned as THOMAS LOEPER, JR., on
behalf of himself and others similarly situated, v. WEGMANS FOOD
MARKETS, INC., Case No. 3:22-cv-02044-MEM (M.D. Pa.), the Parties
ask the Court to enter an order extending the June 2, 2023,
deadline for class certification set forth in the Court's March 17,
2023, Scheduling Order.
Since the status conference with the Court on March 16, 2023, the
Parties have exchanged substantial information, documents, and
class-wide data in the hope of resolving this matter. The Parties
are working diligently to position this action for informed
settlement negotiations. Extending the existing deadline will
enable the Parties to conserve money, time, and other resources.
Wegmans Food is a privately held American supermarket chain.
A copy of the Parties' motion dated May 12, 2023, is available from
PacerMonitor.com at https://bit.ly/3OueSql at no extra charge.[CC]
The Plaintiff is represented by:
Pete Winebrake, Esq.
Deirdre Aaron, Esq.
WINEBRAKE & SANTILLO, LLC
715 Twining Road, Suite 211
Dresher, PA 19025
Telephone: (215) 884-2491
- and -
Sarah R. Schalman-Bergen, Esq.
Krysten Connon, Esq.
LICHTEN & LISS-RIORDAN, P.C.
729 Boylston Street, Suite 2000
Boston, MA 02116
Telephone: (267) 256-9973
The Defendant is represented by:
Stephen J. Jones, Esq.
Todd R. Shinaman, Esq.
Michael J. Lingle, Esq.
Sarah L. Tufano, Esq.
Adam R. Tarosky, Esq.
NIXON PEABODY LLP
1300 Clinton Square
Rochester, New York 14064
Telephone: (585) 263-1000
E-mail: sjones@nixonpeabody.com
tshinaman@nixonpeabody.com
mlingle@nixonpeabody.com
stufano@nixonpeabody.com
atarosky@nixonpeabody.com
WHITING OIL: Court Junks HCM Class Action
-----------------------------------------
In the class action lawsuit captioned as Hystad Ceynar Minerals,
LLC, on behalf of itself and a class of similarly situated persons,
v. Whiting Oil and Gas Corporation, Case No. 1:22-cv-00138-DLH-CRH
(D.N.D.), the Hon. Judge Daniel L. Hovland entered an order
granting the defendant's motion to dismiss and motion to strike
class allegations.
-- The Plaintiff's claim for Whitings violations of N.D.C.C.
section 47-16 -39.1 since June 4, 2021, will go forward only
as
to Hystad. The Plaintiff's Motion for Leave to File Second
Amended Class Action Complaint is denied.
The proposed amendments address only the class members.
Specifically, shortening the time period in which Hystad seeks
recovery for the proposed class removes alleged claims that have
potentially been discharged by bankruptcy proceedings. However, the
date the class's claim arose does not matter because the class
allegations must be struck. Thus, Hystad's proposed amendments
would be futile.
Accordingly, the Plaintiff's motion for leave to file a second
amended complaint is denied.
The action is brought on behalf of the Plaintiff and a proposed
class of similarly situated persons. Since August 12, 2016, Hystad
has owned an interest in oil and gas produced from wells Whiting
operates in North Dakota. The first amended complaint alleges
Whiting made untimely payments to the Plaintiff and class members
without paying 18% interest as required by N.D.C.C.
Hystad defines the proposed class as:
"All non-excluded persons or entities owning mineral interests
in
North Dakota wells who: (1) received untimely payments from
the
Defendant for proceeds associated with oil and gas production
at
any time since August 12, 2016; and (2) whose payments did not
include the eighteen percent per annum interest as required by
N.D.C.C. section 47-16-39.1.
Excluded from the Class are: (1) the Defendant, its
affiliates,
predecessors, employees, officers, and directors; and (2)
persons
who own mineral interests which are owned or managed by the
Board
of University and School Lands of the State of North Dakota.
Whiting contends the class allegations contained in the first
amended complaint fail the typicality requirements of Rule 23 of
the Federal Rule of Civil Procedure. Whiting argues class treatment
is precluded in this case because the claims would require an
individual examination of property interests of each proposed class
member. Hystad contends the typicality requirements are met because
Hystad and the class members have the same claim for relief.
Whiting Oil offers exploration, development, and production of
crude oil, natural gas, and liquid.
A copy of the Court's order dated May 15, 2023 is available from
PacerMonitor.com at https://bit.ly/3OEInWv at no extra charge.[CC]
YUM! BRANDS: Court Grants Bid to Compel Arbitration in Coons Suit
-----------------------------------------------------------------
Judge Stephen P. McGlynn of the U.S. District Court for the
Southern District of Illinois grants the Defendants' motion to
compel arbitration in the lawsuit styled KIMBERLY COONS,
Individually and on Behalf of All Others Similarly Situated,
Plaintiff v. YUM! BRANDS, INC., TACO BELL FRANCHISOR, LLC, YUM
RESTAURANT SERVICES GROUP LLC, TACO BELL CORP., Defendants, Case
No. 21-CV-45-SPM (S.D. Ill.).
Plaintiff Kimberly Coons brings a purported class action against
Defendants Yum! Brands, Inc., Taco Bell Franchisor, LLC ("TBF"),
Yum Restaurant Services Group ("YRSG"), and Taco Bell Corp. ("TBC")
for alleged violations of the Illinois Biometric Privacy Act
("BIPA").
Ms. Coons is a citizen of Illinois. She worked at various Taco Bell
restaurants for approximately 18 years. She last worked at the
restaurant in Caseyville, Illinois, which was franchised by Bell.
Bell required Coons and the other employees to scan their
fingerprints to authenticate and track time. Bell subsequently
stored Coons' fingerprint data.
Pending before the Court are three separate motions: (1) Motion to
Dismiss pursuant to Rule 12(b)(2) of the Federal Rules of Civil
Procedure filed by Yum and YRSG; (2) Motion to Compel Arbitration
pursuant to the Federal Arbitration Act ("FAA") filed by Yum!,
YRSG, TBF, and TBC; and (3) Motion to Dismiss pursuant to Rules
12(b)(6) and 12(b)(7) of the Federal Rules of Civil Procedure,
filed by all four Defendants in the alternative to the prior two
motions. For the reasons set forth in this Memorandum & Order, the
Court grants the motion to compel arbitration, and further stays
this case, including resolution of the motions to dismiss, pending
the outcome of the arbitration.
On Jan. 31, 2021, Coons filed her initial class action complaint
against Yum! to put a stop to its unlawful collection, use, and
storage of her sensitive biometric identifiers and biometric
information, to have the Defendants return and destroy the
biometric information, and to issue a written retention policy. On
March 17, 2021, Yum! filed its first motion to dismiss. However,
prior to proceeding on this motion, the parties stipulated to the
Plaintiff filing an amended complaint and to a briefing schedule
regarding the amended pleading.
On April 28, 2021, Coons filed her amended complaint against Yum!,
and also asserted causes of action against TBF and Bell American
Group, LLC. Within the amended complaint, Coons asserted that Yum!
and TBF directly violated BIPA, and acted as joint employers with
Bell.
On July 20, 2021, Bell filed a motion to compel arbitration and
supporting memorandum of law, referring to an executed copy of
Bell's Dispute Resolution Program. On that same date, Bell filed a
motion and supporting memorandum to dismiss, or in the alternative,
stay the case. Defendants Yum! and TBF also filed a motion to
dismiss along with their supporting memorandum.
On Sept. 20, 2021, Coons sought leave to voluntarily dismiss
Defendant Bell. On Nov. 29, 2021, oral argument was conducted
before the Court at which time the parties also discussed the
future handling of this case. On Nov. 30, 2021, the Court entered
an Order advising the parties of the proper way to dismiss and/or
add a party or claim.
On Jan. 1, 2022, Coons filed her second amended complaint, which
was brought against TBF and Yum!. Judge McGlynn says it is
important to note that Bell was no longer identified as a
party-defendant. Accordingly, all pending motions were terminated
as moot.
On Feb. 3, 2022, Yum! filed another motion to dismiss and
supporting memorandum of law for lack of jurisdiction pursuant to
the Rule 12(b)(2) of the Federal Rules of Civil Procedure. On that
same date, Yum! and TBF also filed a motion to dismiss pursuant to
Rule 12(b)(7) and 12(b)(6) and supporting memorandum of law.
On March 7, 2022, Coons filed her response to the pending motions.
She also filed a motion seeking leave to conduct jurisdictional
discovery. Accordingly, on March 10, 2022, the Court granted Coons
60 days to conduct jurisdictional discovery while holding the
pending motions in abeyance.
On June 24, 2022, the Court held a scheduling conference at which
time the parties discussed the status of the jurisdictional
discovery. Shortly thereafter, on July 15, 2022, the parties
submitted a Joint Status Report disputing the future handling of
this matter. On Aug. 11, 2022, the Court granted Coons leave to
file an amended complaint based upon the issues being raised in the
status report.
On Sept. 1, 2022, Coons filed her third amended complaint ("TAC")
against erstwhile Defendants Yum! and TBF and newcomers TBC and
YRSG. Specifically, the TAC alleges that the Defendants constitute
a vertically integrated structure of entities with YUM the ultimate
corporate parent of its wholly owned direct and indirect
subsidiaries, YRSG, TBC, and TBF. She also raises "joint employer"
and "alter ego" theories.
On Sept. 16, 2022, the three motions and supporting memorandums of
law were filed.
On Sept. 30, 2022, the Court approved the proposed briefing
schedule. Accordingly, on Oct. 17, 2022, Coons filed her unredacted
memorandums in opposition to the three defense motions. The
Defendants filed their respective replies on Nov. 7, 2022.
On Jan. 6, 2023, and Feb. 24, 2023, respectively, the Court granted
Coons leave to file supplemental authority, including recent
decisions from the Northern District, the Seventh Circuit, and the
Illinois Supreme Court, to wit: Giron v. Subaru of America, Inc.,
2022 WL 17130869 (N.D. Ill. Nov. 21, 2022), Johnson v. Mitek
Systems, Inc., 55 F.4th 1122 (7th Cir. 2022); Tims, et al v. Black
Horse Carriers, Inc., 2023 IL 127801 (Ill. Feb. 2, 2023); and,
Cothron v. White Castle Systems, Inc. 2023 IL 128004 (Ill., Feb.
17, 2023).
Judge McGlynn notes that an enforceable contract under Illinois law
requires an offer, acceptance, consideration, and mutual assent,
citing Nat'l Prod. Workers Union Ins. Trust v. Cigna Corp., 665
F.3d 897, 901 (7th Cir. 2011).
The Plaintiff was an "at-will" employee, which is presumed when a
person is hired without a fixed term and which is expressly stated
in the Bell Manager Handbook. Judge McGlynn says an employment
agreement signed by an at-will employee can create valid and
enforceable contractual rights if the traditional requirements for
contract formation exist. While Coons contends that there was no
contract, the Court finds the contrary. Bell offered employment,
which was accepted by Coons, and both parties consented to the
terms.
The Court moves on to the next step -- determining whether a valid
arbitration agreement existed. In the motion, the Defendants point
to the document itself, which was entitled, "RECEIPT OF DISPUTE
RESOLUTION PROGRAM AND AGREEMENT TO ABIDE BY DISPUTE RESOLUTION
PROGRAM" and which was executed by Coons on Aug. 15, 2013, along
with Charles W. Brown, the authorized officer for Bell American
Group and its subsidiaries. The entirety of the Dispute Resolution
Program ("DRP"), which Coons indicated she had reviewed, set forth
how to seek arbitration, and also specified that any arbitration
would be administered under the American Arbitration Association's
rules and expressly stated that the Federal Arbitration Act will
govern the interpretation, enforcement, and proceedings under this
Agreement.
However, because "the Company" refers to Bell American Group, which
was the only signatory beyond Coons, Coons counters that the
Defendants, as non-signatories to the contract, are unable to
enforce the agreement to begin with, leaving the Court to address
the issue of arbitrability.
The Defendants contend that by signing the document, Coons agreed
to a "sweeping" delegation clause that referred all disputes to an
arbitrator. They further contend that the agreement incorporates
the rules of the American Arbitration Association ("AAA") is an
unmistakable delegation as to questions of arbitrability. The Court
concurs. As such, the Court defers all issues of arbitrability,
including the ability of a non-signatory to enforce the agreement,
to the arbitrator.
Ms. Coons next argues that the arbitration agreement does not apply
to non-signatories. The Court does not agree with Coons. To the
contrary, the Defendants raise two possible arguments for why the
Court should enforce the arbitration agreement, although only one
needs to be found for the agreement to be upheld against
non-signatories.
Judge McGlynn opines, among other things, that the TAC is riddled
with numerous accusations of knowledge, involvement, and control,
by the Defendants, and although the Plaintiff may not have
explicitly pled an agency relationship, these accusations are more
than enough to allege the existence of an agency relationship, as
was similarly found in Illinois law by Walker v. Watson, 2012 IL
App (1st) 111759-U.
Notwithstanding the foregoing, the Court has the inherent authority
to stay proceedings to control the disposition of causes on its
docket with economy of time and effort for itself, for counsel, and
for litigants. This authority exists even in the absence of a
procedurally valid motion to stay. As such, the Court will stay
further proceedings in this matter pending a decision from the
arbitrator. Consequently, the pending motions to dismiss are held
in abeyance.
For the reasons set forth, the Defendants' Motion to Compel
Arbitration is granted in its entirety. As set forth infra, all
further proceedings in this matter are stayed pending arbitration.
The parties are directed to file a report advising the Court of the
status of the arbitration proceeding on or before Nov. 1, 2023.
A full-text copy of the Court's Memorandum & Order dated May 8,
2023, is available at https://tinyurl.com/4k7fcr7f from
Leagle.com.
ZOETIS INC: De Lara Suit Moved to Santa Barbara County Super. Court
-------------------------------------------------------------------
Judge Dale S. Fischerd of the U.S. District Court for the Central
District of California remands the case, ANGELIKA DE LARA, et al.,
Plaintiffs v. ZOETIS, INC., et al., Defendants, Case No. CV 23-3167
DSF (PDx) (C.D. Cal.), to the Superior Court of the State of
California for the County of Santa Barbara.
The Defendants removed this class action employment case from state
court based on traditional diversity jurisdiction. There is no
allegation that the Class Action Fairness Act applies.
Nevertheless, the Defendants have attempted to plead the amount in
controversy by aggregating the claims of all potential class
members.
Judge Fischerd explains that the traditional rule is that multiple
plaintiffs who assert separate and distinct claims are precluded
from aggregating them to satisfy the amount in controversy
requirement. This rule applies to class actions not removed under
CAFA.
The Defendants make no attempt to show that any individual
Plaintiff's potential recovery could exceed $75,000. In addition,
the information provided in the notice of removal suggests that it
is unlikely that such a showing could be met. The Defendants
estimate that there are 100 members of the potential class. They
further estimate that the total recovery, before attorney's fees,
is an oddly precise $3,303,535.66.
Judge Fischerd says this would provide an average recovery, before
fees, of only around $33,000. The highest estimated recovery for
one of the named Plaintiffs, before fees, is around $42,000 based
on the Court's understanding of the Defendants' allegations. The
Defendants do not allege -- and have provided no reason for the
Court to believe -- that attorney's fees, prorated among the class,
would cover the significant shortfall between these amounts and the
$75,000 jurisdictional threshold.
Because the Defendants have not adequately pleaded that the amount
in controversy exceeds the jurisdictional minimum, Judge Fischerd
orders that the case be remanded to the Superior Court of
California, County of Santa Barbara.
A full-text copy of the Court's May 12, 2023 Order is available at
https://rb.gy/t5wgl from Leagle.com.
*********
S U B S C R I P T I O N I N F O R M A T I O N
Class Action Reporter is a daily newsletter, co-published by
Bankruptcy Creditors' Service, Inc., Fairless Hills, Pennsylvania,
USA, and Beard Group, Inc., Washington, D.C., USA. Rousel Elaine T.
Fernandez, Joy A. Agravante, Psyche A. Castillon, Julie Anne L.
Toledo, Christopher G. Patalinghug, and Peter A. Chapman, Editors.
Copyright 2023. All rights reserved. ISSN 1525-2272.
This material is copyrighted and any commercial use, resale or
publication in any form (including e-mail forwarding, electronic
re-mailing and photocopying) is strictly prohibited without prior
written permission of the publishers.
Information contained herein is obtained from sources believed to
be reliable, but is not guaranteed.
The CAR subscription rate is $775 for six months delivered via
e-mail. Additional e-mail subscriptions for members of the same
firm for the term of the initial subscription or balance thereof
are $25 each. For subscription information, contact
Peter A. Chapman at 215-945-7000.
*** End of Transmission ***